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September 18, 2010

Can dismissed domestic violence complaint justify revoking gun permit?

This local story from Massachusetts provides an interesting spin on both "sentencing" based on dismissed charges and the Second Amendment rights of those accused of violent behavior.  The piece is headlined "Man challenges state gun law: Constitutionality of 2005 permit revocation questioned," and here are the details:

Citing a recent U.S. Supreme Court decision, a Shrewsbury man is challenging the constitutionality of a state law under which his license to carry a firearm was revoked five years ago by Police Chief Gary J. Gemme.  Lawyer Mel L. Greenberg, who represents Raymond J. Holden, filed an amended petition in Central District Court Sept. 10 appealing Chief Gemme’s 2005 revocation of Mr. Holden’s firearms license based on a determination that Mr. Holden was not a “suitable person” to carry a gun.

In a memorandum of law accompanying his amended petition, Mr. Greenberg said the term “suitable person,” as it appears in the law, is unconstitutionally vague given the Supreme Court’s June 28 ruling in the case of McDonald v. Chicago.  The nation’s highest court ruled in a 5-4 decision in that case that the Second Amendment grants citizens a fundamental right to bear arms that cannot be infringed upon by state and local governments.

Mr. Holden, who has a place of business in Worcester, had been granted a license to carry a firearm in 2001, but the license was suspended by Chief Gemme on Sept. 14, 2005, four days after Mr. Holden was arraigned in Westboro District Court for an alleged assault on his wife. The assault and battery complaint was dismissed Oct. 3, 2005, after Mr. Holden’s wife recanted a statement in a Shrewsbury Police Department incident report.

Judge Dennis J. Brennan, since retired, then ordered the reinstatement of Mr. Holden’s license in light of the dismissal of the assault charge. Chief Gemme followed the court’s order, but then revoked the license, saying he could consider underlying evidence that a crime had occurred even if a charge had been dismissed....

“The McDonald ruling adds the Second Amendment right to bear arms to the list of fundamental rights guaranteed to all citizens.  Consequently, any state statute or regulation which restricts or regulates such a right is subject to the strictest judicial scrutiny to insure that it reasonably regulates without infringement of that right and that its application does not result in a denial of due process rights,” Mr. Greenberg wrote.

Vague laws violate due process “because citizens do not receive fair notice of the conduct proscribed by the statute and because they do not limit the exercise of discretion by officials, creating the possibility of arbitrary and discriminatory enforcement,” the lawyer said in his memorandum.

As regular readers know, the Supreme Court and lower courts have repeatedly upheld the constitutionality of enhancing an offender's criminal sentence based on acquitted and dismissed conduct.  But, of course, in those cases the offender has been duly found guilty of some other offense. 

Here, Mr. Holden has not been convicted of anything at all.  But, of course, he also is not being sentenced, just having his gun permit revoked.  And if Police Chief Gary Gemme has a sound basis for concluding that Mr. Holden did in fact beat his wife, his permit revocation decision would seem to accord with Congress's basic view (which finds expression in federal criminal law) that a person who commits even a minor form of domestic violence should never be allowed to possess a firearm under any circumstances.

September 18, 2010 in Procedure and Proof at Sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (11) | TrackBack

"Georgia capital cases in US Supreme Court crosshairs"

The title of this post is the headline of this new AP article, which gets started this way:

The U.S. Supreme Court has stepped into four Georgia death penalty cases in the last year or so, and it could yet again intervene — this time over a defendant who said he languished in jail because the state couldn't pay his lawyers.

It's the latest test for Georgia's justice system, which has come under scrutiny in recent years. The state's new public defender program has had funding trouble ever since it spent $3 million in 2008 defending Brian Nichols, the man convicted of killing a judge, court reporter, sheriff's deputy and federal agent during a 2005 rampage at an Atlanta courthouse.  And the Georgia Supreme Court has been criticized for not reviewing death penalty appeals closely enough.

In this case, Jamie Ryan Weis, who is accused of killing a 73-year-old woman, argues there was a "complete breakdown" in the system when he sat in jail without an attorney for more than two years.  The U.S. Supreme Court could decide after a closed-door conference Sept. 27 whether it wants to intervene.

"It's especially surprising because this Supreme Court is not an anti-death penalty court," said Donald E. Wilkes Jr., a University of Georgia Law School professor who specializes in death penalty cases.  "Maybe they think that Georgia is giving the death penalty a bad name, if that's possible."

But Weis' case may not be as simple as he claims.  Prosecutors said Weis was never without legal representation, though they concede his lawyers were limited by a funding shortfall.  "The Georgia Supreme Court properly determined there was not a systemic breakdown in the indigent defense system in Georgia," Beth Burton, a senior Georgia assistant attorney general, said in arguments.

September 18, 2010 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Massachusetts SJC splits over when GPS tracking can be added to sex offender sentence

As detailed in this local article, which is headlined "GPS tracking limited by SJC: Rules in case of sex offender; Sets conditions for probation use," a split high court in Massachusetts concluded yesterday that state judges "cannot change probation conditions for convicted sex offenders by requiring them to wear GPS monitoring devices unless the former inmates have violated the terms of their release." Here are the particulars:

In a 4-to-3 decision, the Supreme Judicial Court upheld a lower court judge who refused to add GPS monitoring and a ban on visits to playgrounds, schools, and libraries to the probation restrictions of a former Lowell man who spent about 20 years locked up for the abduction and rape of a 7-year-old boy.

Prosecutors and lawyers for the man agreed that he had not violated any conditions of probation when the judge rejected the request by the state Probation Department in August 2009. “Here, the judge correctly found that there had been no material change in the defendant’s circumstances after the terms of probation were initially imposed that would justify the proposed additional probation condition of GPS monitoring and exclusion zones," Justice Ralph D. Gants wrote for the majority.

As the case was winding its way through the courts, the convicted sex offender, Ralph W. Goodwin, violated the terms of his probation on June 30 by failing to attend a day program as part of his mental health treatment plan, according to his appellate lawyer, Jeannine E. Mercure of Lowell. As a result, another judge ordered Goodwin to wear a GPS device, although she did not restrict where he can go.

Nonetheless, yesterday’s ruling sets limits on when judges can require GPS monitoring for freed sex offenders who were convicted years before the devices became a common condition of probation imposed at sentencing. The Probation Department currently monitors 730 freed sex offenders with GPS, according to Coria A. Holland, a department spokeswoman.

Yesterday’s ruling complements a 4-to-3 decision the high court issued in August 2009. In that case, the SJC held that a 2006 state law requiring convicted sex offenders to wear GPS devices while on probation could not automatically be applied retroactively to defendants convicted before the statute went into effect. The majority said the devices create an unconstitutional burden on the individuals’ freedom....

In a one-paragraph dissent yesterday, [Justice] Ireland wrote that he continues to believe that requiring people on probation to wear the device is “remedial rather than punitive" and should be allowed.

The court’s ruling drew criticism from law enforcement officials and victims’ rights advocates but praise from defense lawyers.

The full ruling in Massachusetts v. Goodwin is available at this link.

September 18, 2010 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (1) | TrackBack

September 17, 2010

Virginia's Governor denies clemency for female condemned murderer

As detailed in this local article, headlined "Gov. McDonnell refuses to block execution of Teresa Lewis," the Governor of Virginia is not going to grant clemency to a high-profile defendant due to be executed next week. Here are the details:

Gov. Bob McDonnell denied a clemency petition today from Teresa Lewis, scheduled to be the first woman executed by Virginia in nearly a century. Unless the U.S. Supreme Court decides to review the case, Lewis will die by lethal injection at 9 p.m. Sept. 23.

A Pittsylvania County judge sentenced Lewis to death in 2003 for the murder-for-hire killings of her husband, Julian Clifton Lewis, and her stepson, Charles "C.J." Lewis....

Both of the hired killers were sentenced to life in prison — prompting Lewis’ lawyers to argue in a clemency petition that it would be unfair to put her to death. The petition also asserted that Lewis, who is borderline mentally retarded and suffers from a dependent personality disorder, lacked the mental acumen to plan a murder-for-hire.

"Having carefully reviewed the petition for clemency, the judicial opinions in this case, and other relevant materials, I find no compelling reason to set aside the sentence that was imposed by the Circuit Court and affirmed by all reviewing courts," McDonnell said today in a statement.

Governor McDonnell's full statement in support of his decision is available here.

September 17, 2010 in Clemency and Pardons, Death Penalty Reforms, Race, Class, and Gender | Permalink | Comments (12) | TrackBack

Quick textual reflections on Constitution Day

USCon Today, September 17, is the 223rd anniversary of the day in 1787 when the Constitutional Convention officially submitted its proposed constitution to the people of the United States.  To honor the day, I thought I might quoting some of the key criminal justice provisions of the original U.S. Constitution (along with the Bill of Rights):

Part of Article I:  "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.  No Bill of Attainder or ex post facto Law shall be passed."

Part of Article II:  "The President ... shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

Part of Article III:  "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed."

Amendment I:  "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Amendment II:  "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Amendment IV:  "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Amendment V:  "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law...."

Amendment VI:  "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

Amendment VIII:  "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

I would be interested in readers' perspectives on which criminal justice parts or provisions of the US Constitution they believe or fear is being given the least respect or attention in modern times. 

Regular readers should not be surprised that I believe that it is the Reprieves and Pardons Clause that is in the worst shape in modern times.  Especially in the wake of the Supreme Court's recent work in cases like Heller and Blakely and Graham, I am not unduly worried about the state and fate of the even Amendments (which always seem to get less love than the leading odd Amendments).  But modern presidents have largely ignored their clemency powers until late in their presidencies, and political cronyism rather than constitutional respect seems to best explain many of the major clemency actions of the last few Presidents.  And, as noted here and in many prior posts, President Obama, now almost a full two years into his presidency, has not yet used this historically important constitutional authority a single time (except for two turkeys last Thanksgiving). 

Some related posts:

September 17, 2010 in Clemency and Pardons, Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (19) | TrackBack

"Marijuana law reform is a civil rights issue"

The title of this post is the headline of this commentary appearing in the San Francisco Chronicle and authored by Alice Huffman, the president of the California State NAACP. Here is how it starts and ends:

"Injustice anywhere is a threat to justice everywhere." So said the late Rev. Martin Luther King Jr. on April 4, 1967, when he spoke out against the Vietnam War. At the time, he was roundly criticized for speaking out on an issue considered outside the purview of civil rights leaders. King understood better than most at the time, the true cost of war - in lives lost, in futures squandered, in dreams deferred and in misspent resources. Eventually, a majority of Americans came to agree with him about the war in Vietnam. His moral courage lay in speaking out in the face of no agreement, caring more about his integrity than his popularity.

It is the mission of the California NAACP to eradicate injustice and continue the fight for civil rights and social justice wherever and whenever we can. We are therefore compelled to speak out against another war, the so called "war on drugs."

This is not a war on the drug lords and violent cartels. This is a war that disproportionately impacts young men and women and is the latest tool for imposing Jim Crow justice on poor African Americans.

We reject the oft-repeated but deceptive argument that there are only two choices for dealing with drugs - heavy-handed law enforcement or total permissiveness. Substance abuse and addiction are American problems that impact every socioeconomic group, and meaningful public health and safety strategies are needed to address it. However, law enforcement strategies that target poor blacks and Latinos and cause them to bear the burden and shame of arrest, prosecution and conviction for marijuana offenses must stop....

The California NAACP does not believe maintaining the illusion that we're winning the "war on drugs" is worth sacrificing another generation of our young men and women.

Enough is enough. We want change we can believe in, and that's why we're supporting Prop. 19. Instead of wasting money on marijuana law enforcement, Prop. 19 will generate tax revenues we can use to improve the education and employment outcomes of our youth.  Our youth want and deserve a future. Let's invest in people, not prisons.

Some related posts on pot policy and politics:

September 17, 2010 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (3) | TrackBack

"Feds seek to halt inmate's frequent lawsuits"

The title of this post is the headline of this recent amusing AP article. Here is how it starts:

A federal inmate who has filed more than 3,800 lawsuits and targeted the famous, the infamous and even the long-dead is now being sued by federal officials who want him to knock it off.

Federal prosecutors who say they have had enough of the frivolous filings have filed a lawsuit of their own asking a judge to take unusual action to stop Jonathan Lee Riches.  Since 2006, Riches has filed lawsuits in nearly every jurisdiction in the country, court documents show. The inmate who dubbed himself "Lawsuit Zeus" in one of his thousands of court cases has filed up to four of his handwritten petitions a day in Kentucky courts alone.

The 33-year-old inmate at the federal prison in Lexington has sued New England Patriots coach Bill Belichick, former President George W. Bush, then-Atlanta Falcons quarterback Michael Vick and even Somali pirates.  Sometimes, Riches asks for money, other times an injunction to stop alleged, if physically impossible, activity.

Among Riches' targets have been "Adolf Hitler's National Socialist Party," the ancient philosopher Plato, the celestial body formerly known as the planet Pluto and the Guinness Book of World Records.

In the Guinness case, he wanted to prevent himself from being dubbed the most litigious man in America.  "These phrases (i.e. "Patrick Ewing of Suing," "Johnny Sue-nami," etc ...) hurt my feelings and violate my civil rights.  I've filed so many law suits with my pen and right hand that I got arthritis in my fingers, numbness in my wrists, crooked fingers, I got bags under my eyes for sleepless nights suing the world," Riches wrote in Riches v. the Guinness Book of Records.

Guinness spokeswoman Sara Wilcox said the book doesn't monitor litigious people and has no records concerning Riches.  Like many of his other legal claims, the lawsuit was dismissed.

September 17, 2010 in Prisons and prisoners | Permalink | Comments (19) | TrackBack

Symbol and substance in crack sentencing reform

The Oakland Tribune has this lengthy and interesting new article headlined "Though largely symbolic, crack-powder cocaine law change seen as social victory."  Here are excerpts:

On Aug. 3, President Barack Obama addressed that disparity at the federal level when he signed the Fair Sentencing Act, a law that reduced the long-standing, hotly debated sentencing gap that treats powder and crack cocaine differently.  The move excited proponents of racial equality who have long argued that coming down harder on a drug chiefly found in communities of color is essentially a modern-day form of Jim Crow-era segregation and persecution.

Though the new law represents a victory for racial justice advocates, the victory may largely be symbolic. Alameda County assistant district attorney Norbert Chu points out the Fair Sentencing Act will have no impact on prosecutions under state law, which is what most police patrolling Oakland streets are there to enforce....

As for federal prosecution, street-level drug interaction is largely coincidental, U.S. attorney's office spokesman Jack Gillund said.  "While (federal) investigators may encounter street-level dealers while combating gang violence or when they are engaged in a targeted enforcement effort, they don't patrol city streets looking for drug dealers; that mission is best handled by the dedicated men and women who serve daily in local and state law enforcement agencies," Gillund wrote in an e-mail.

However, the U.S. attorney's office does prosecute both large and small cocaine-enforcement cases, and it's "impossible to predict what possible impact this change may have on the Bay Area's problems with drugs," Gillund added.

September 17, 2010 in Drug Offense Sentencing, New crack statute and the FSA's impact, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

September 16, 2010

"Should a Judge Consider the Cost of a Sentence?"

The title of this post is the headline of this effective new piece at ABC News discussing Missouri's fascinating new sentencing tool providing "case-by-case invoices" of punishment costs to judges at the time they make sentencing decisions (details here).  Here are excerpts from the ABC News piece:

When judges in Missouri prepare to sentence an offender, they have a new tool unavailable to other judges across the country: an invoice detailing the cost to taxpayers of different sentencing options.

The information is part of an offense summary culled from statistics kept by the state's Bureau of Corrections that is tailored to the offender and also details the risk that he might re-offend....

The program was unveiled last month by the Missouri Sentencing Advisory Commission (MOSAC) as a tool to help judges determine the best chances for reducing recidivism with cost-effective punishments.

A judge or lawyer is able to enter specific information on the MOSAC website, such as an offender's prior criminal history, the crime committed, his education and employment status. The computer then uses statistics from other actual sentences to process the information.

For instance, a judge might plug in data regarding a 20-year-old offender with a high school diploma who was convicted of second-degree robbery and had no prior felonies. The online tool then would generate a report with a recommendation for probation with enhanced supervision that would cost $8,960 for a five-year period. If the offender were to receive such a sentence, his risk of committing a new offense within two years would be 29.7 percent.

However, the report also would contain information for the judge to consider if he believed there was a unique characteristic of the particular crime that would suggest a harsher sentence. That recommendation would be five years in prison for a cost of $54,724. The rate of recidivism for that sentence jumps to 39.6 percent. Missouri Supreme Court Judge Michael Wolff, chairman of the state's sentencing commission, said the new tool considers cost, but focuses on recidivism....

Judge Wolff asked, "Why not ask the question of how much this is going to cost?" But there are critics of the program.

Jennifer Joyce, the prosecuting attorney in the city of St. Louis, said, "It's ultimately cheaper to prosecute no one."  She isn't opposed to the information being available for judges and taxpayers, or to the concept of alternative sentencing, but she is concerned that sentencing decisions will be made on an economic basis.

 "Strictly speaking, economics is irrelevant to the decision that the judge makes, which is about public safety," she said. "If we are going to use economics as a basis to making these decisions, then we have to consider the economics of the victim and the community."

Judge Gary Oxenhandler, who sits on the 13th Judicial Circuit and has used the new tool, disagreed with her conclusion. He said cost is only one of many factors a judge should consider, including the threats to the community and the impact on the victim. "I want as much information as I can get," he said.

"Any place a judge can obtain information, that is an important source.  The prosecution has its goals, the defense has its goals.  Our job is to come up with the right amalgam that is going to best serve all these interests between protection of the public and punishment for the offender."

Helpfully, everyone can see an example of the data reports on recidivism and costs on the last two pages of the latest Smart Sentencing bulletin from the Missouri Sentencing Advisory Commission. I encourage everyone to check out the specifics of what Missouri is doing for its sentencing judges and to think about whether and how sentencing judges (and litigants) in all systems ought be get the benefits of all this helpful data.

Related post:

September 16, 2010 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack

What will USSC do given that DOJ and the Judicial Conference oppose retroactivity for new criminal history rules

As detailed here, the US Sentencing Commission has a public meeting scheduled today at which it will possibly vote whether to give retroactive effect to its new amendment to reduce the impact of "recency" as a factor in the calculation of the criminal history score.  This recent analysis from the USSC shows that over 7,500 federal inmates might get, on average, more than a year off their prison sentence if this amendment is made retroactive.

Yesterday, the Sentencing Commission posted here the materials it received in response to its request for public comment on this issue.  Intriguingly, as detailed in letters available here and here, the Justice Department "strongly opposes retroactive application of the amendment" and the Criminal Law Committee of the Judicial Conference has unanimously recommended against retroactivity.  The themes of these letters highlight the administrative burdens that will be placed on courts and other players in the system from having to process all the sentence modification requests that would result from making the amendment retroactive.  (Not surprisingly, defender groups support retroactivity and suggest the burdens will not been too great.)

Among other interesting aspects of this debate, these retroactivity issues present the classic theories of punishment in sharp relief.  A true retributivist likely would say that if future offenders do not deserve to have their punishment enhanced by the guideline provision that the Commission has amended, then past offenders ought not justly be required to sit in prison longer than they deserve and thus the new form of guideline justice ought to apply retroactively.  But a utilitarian likely would share the view of prosecutors and judges that achieving a bit more justice for (thousands of) past offenders is not worth the considerable  administrative burdens that retroactive justice would demand.

Any predictions on how the US Sentencing Commission will resolve this issue?  I suspect the views of prosecutors and judges will end up carrying the day, though perhaps the USSC will find a way to engineer a retroactivity rule that can achieve maximum justice at minimal costs.

UPDATE:  According to the folks at FAMM, my prediction that the the views of prosecutors and judges would carry the day concerning retroactivity appears to have been accurate: the US Sentencing Commission on Thursday voted against making its new recency amendment retroactive.

September 16, 2010 in Federal Sentencing Guidelines, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Government reports that drug use is up ... let the spin begin

As detailed in this new AP story, the "rate of illegal drug use rose last year to the highest level in nearly a decade, fueled by a sharp increase in marijuana use and a surge in ecstasy and methamphetamine abuse, the government reported Wednesday."  Here are the details along with some of the early spin:

Gil Kerlikowske, the director of the Office of National Drug Control Policy, called the 9 percent increase in drug use disappointing but said he was not surprised given "eroding attitudes" about the perception of harm from illegal drugs and the growing number of states approving medicinal marijuana.  "I think all of the attention and the focus of calling marijuana medicine has sent the absolute wrong message to our young people," Kerlikowske said in an interview.

The annual report from the Substance Abuse and Mental Health Services Administration found marijuana use rose by 8 percent and remained the most commonly used drug.

Mike Meno, a spokesman for the pro-legalization Marijuana Policy Project, said the survey is more proof that the government's war on marijuana has failed in spite of decades of enforcement efforts and arrests. "It's time we stop this charade and implement sensible laws that would tax and regulate marijuana the same way we do more harmful — but legal — drugs like alcohol and tobacco," Meno said.

On a positive note, cocaine abuse continues to decline, with use of the drug down 32 percent from its peak in 2006. About 21.8 million Americans, or 8.7 percent of the population age 12 and older, reported using illegal drugs in 2009. That's the highest level since the survey began in 2002. The previous high was just over 20 million in 2006.

The survey, which was being released Thursday, is based on interviews with about 67,500 people. It is considered the most comprehensive annual snapshot of drug use in the United States.

Other results show a 37 percent increase in ecstasy use and a 60 percent jump in the number of methamphetamine users. In the early 2000s, there was a widespread public safety campaign to warn young people about the dangers of ecstasy as a party drug, but that effort declined as use dropped off.  "The last few years, I think we've taken our eye off the ball on ecstasy," Kerlikowske said.

My view and spin on these drug use numbers is significantly impacted by the data released by the FBI earlier this week reporting that violent crimes continue to see a sharp decline (details here).  Is it possible that these days — perhaps because we are mired in a down economic period — increased drug use contribues to a lower violent crime rate?  Might one look at all this data and reasonably suggest (or at least hope) that decriminalizing marijuana could help get the violent crime rate to go even lower?

I will be the first one to concede that legalization of marijuana (or any other drugs) will generally tend to increase the use of marijuana (or any other drugs).  But if increased drug use is not leading to increased crime  — or increased road fatalities, which also hit a record low last year — why should increased drug use be a major cause for concern for modern criminal justice systems?

I have no doubt that increased drug use produces increases in various social harms, and I generally support greater public health expenditures to try to reduce those harms.  Likewise, I support greater public health expenditures to try to reduce the social harms of other "vices" humans seem to enjoy like drinking alcohol, smoking tobacco, eating too many staurated fats, playing violent video games, etc.  But unless and until there is clear evidence that increased drug use results in a lot more serious crime, I continue to be troubled by our use of criminal justice systems to address the tangential social harms of how some people opt to exercise their personal autonomy.

September 16, 2010 in Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (5) | TrackBack

"Criminal Justice & Religion"

The title of this post is the title of a book chapter that is now available in proof form here via SSRN. The named author of the chapter is SpearIt — a nom de plum for Supremecy Clause? — and here is the abstract:

This chapter examines the relationship between criminal justice and religious traditions in the U.S.  It outlines a general framework to illuminate the historical tensions between criminality and religious tradition.  It further argues that even though the notion of “separation of church and state” is held in high esteem, in practice, history shows that Christian ideals can be linked to the very foundations of American law.  The criminal justice system is no exception, and the impacts of Christianity can be seen from the very beginning of its development.  In turn, the criminal justice system has played an influential role in the history and day to day realities of religious practitioners and their communities.  As home to the largest prison population in the world, this chapter reveals the U.S. criminal justice system is a key factor in the religious practice of many.

September 16, 2010 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Restitution terms debated in another federal child porn downloading sentencing

As detailed in this new article from the Kansas City Star, which is headlined "Long prison sentence, restitution sought in child porn case," federal district court around the country continue to confront the challenging and unsettled issue of whether and how they can and should order restitution as part of a federal sentence for downloading certain child pornography pictures. Here are the particulars:

The nightmare never ends for the young woman known around the world as “Vicky.”  Every day, new letters arrive in her mailbox informing her that another man has been arrested for having on his computer pornographic images of her being raped as a child.

One of those men was in a Kansas City courtroom Wednesday to face sentencing for receiving and possessing thousands of images of child pornography, including a nearly two-hour video of Vicky being abused as a 10-year-old.

William Harold Laursen, a former music teacher at two area schools, last year pleaded guilty to the charges. On Wednesday, federal prosecutors sought not only a lengthy prison sentence but an order for Laursen to pay restitution to Vicky.

U.S. District Judge Howard Sachs took the matter under advisement after a morning of testimony, including how the videos of Vicky’s abuse at the hands of her father are some of the most widely disseminated child pornography images on the Internet.

 “There’s no end to it,” said Randall Green, a psychologist who has examined the now-20-year-old woman in the Vicky series of images.  “She feels she is serving a life sentence.”  Not only must she deal with the trauma of being sexually assaulted by her father, but she must live with the knowledge that thousands of others have seen her being abused, Green said.  She suffers from myriad psychological problems that will require a lifetime of therapy, and she continually is fearful that people she encounters may recognize her from the videos, he said.

Though she lives in another state and did not attend Wednesday’s hearing, prosecutors have provided her written statement to the court.  “Thinking about all those sick perverts viewing my body being ravished and hurt like that makes me feel like I was raped by each and every one of them,” she said.  “It terrifies me that people enjoy viewing things like this.”...

Seeking restitution for child pornography victims from those who download and disseminate their images is relatively new.  To date, various courts have ordered about $44,000 in restitution to Vicky, according to a statement from her attorney.

Vicky is not her real name, but some downloaders of her childhood images have learned her real name and have attempted to contact her, Green said. One even created a video called “Where’s Vicky Now?” and combined current images of her with the pornographic images from her childhood, he said.

Laursen, 57, of Kansas City, formerly taught at Kansas City Academy and at CS-1 School in Prairie Village. He did not testify during Wednesday’s hearing in U.S. District Court in Kansas City. His attorney, Tom Bath, pointed out in his questioning of witnesses that there were no allegations or evidence that Laursen ever touched a child inappropriately.

I am deeply saddened by the fact that "Vicky" still suffers greatly as a result of her sexual abuse and the continued circulation of images of her victimization, and I would readily credit the psychologists assertion that "there’s no end" to the harms that "Vicky" continues to endure. 

But this reality makes the legal debate over restitution in child porn downloading cases even more challenging.  If there is no end to the harms that Vicky is suffering, should there likewise be no end (either temporally or monetarily) to her ability to collect restitution award from any and every defendant who has ever downloaded her pictures?

Some related recent federal child porn restitution posts:

September 16, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack

"Implementing (or Nullifying) Atkins?: The Impact of State Procedural Choices on Outcome in Capital Cases Where Intellectual Disability is at Issue"

The title of this post is the title of this notable new article available via SSRN authored by John Blume, Sheri Lynn Johnson and Christopher Seeds. Here is the abstract:

This empirical study assesses the impact of state procedural choices on the implementation of Atkins v. Virginia, which prohibits the execution of prisoners with intellectual disability (“mental retardation”).  Since Atkins, much scholarly attention, including our own, has focused on the manner in which states have applied substantive definitions of intellectual disability that deviate from the clinical norm.  But as the present study shows, matters of procedure -- such as whether a judge or jury determines intellectual disability, whether the determination occurs prior to trial or in conjunction with a capital sentencing trail, and the applicable burden of proof -- may also make a difference on outcome. The study draws from available data on all known post-Atkins determinations of intellectual disability (n = 244).

The study finds that cases in which a jury makes the intellectual disability determination are relatively infrequent (28 jury verdicts versus 216 judicial determinations).  More striking, jury findings of intellectual disability are exceedingly rare -- in fact, nationwide, there have been only three.  We assess these statistics -- and others -- in context with: previous empirical analyses of the substantive deviations, long-standing concerns about the ability of jurors (especially death-qualified jurors) to assess mental health in criminal cases, and the risks of unreliable capital sentencing that Atkins sought to avoid.

September 16, 2010 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

"Partial Settlement Reached in Pa. 'Sexting' Case"

The title of this post is the headline of this new piece in The Legal Intelligencer, which provides an update on the highest-profile "sexting" case to date. Here is how the piece begins:

One of the high school students at the center of the "sexting" controversy in Wyoming County has agreed to a partial settlement of a civil rights suit that said her constitutional rights were violated when a principal confiscated her cell phone, found nude images she had taken of herself and turned it over to prosecutors.

Under the terms of the settlement, the Tunkhannock Area School District in Northeastern Pennsylvania agreed to pay $33,000, but admitted to no wrongdoing.  However, the plaintiff, who is identified in court papers only as N.N., has not settled her claims against the Wyoming County District Attorney's Office.

As a result, the case will continue and still has the potential to break new legal ground, possibly setting a precedent on the issue of whether students have a right of privacy that extends to the contents of their cell phones.

Some related "sexting" posts:

September 16, 2010 in Offender Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

September 15, 2010

Will a "national call-in day" help pass the National Criminal Justice Commission Act?

As detailed here via the folks at Families Against Mandatory Minimums, a number of public policy groups have denominated today as "National Call-In Day" in support of S. 714, which is the National Criminal Justice Commission Act, that passed the House during the summer but now seems stalled in the Senate.  (Here is my July post noting House passage and providing background on the bill.) 

Though in prior posts I have expressed some negative cynicism concerning what a National Criminal Justice Commission could and would be able to achieve, I would still like to see this bill become law.  In other words, my response to the question in the title of this post is "I hope so."

Some related recent and older posts:

September 15, 2010 in Who Sentences? | Permalink | Comments (2) | TrackBack

"Crime is down, but for how long?"

The question in the title of this post is the headline of this interesting commentary responding to the latest good news from the FBI concerning crime rates:

Apparently, it is now official -- crime has taken an extended holiday.  Yesterday, the FBI released its annual report, Crime in the United States, confirming what earlier preliminary results had indicated: crime is down across the board, including a 7.3 percent decline in homicide.  Although undeniably good news, there is more to the story that should warn us against complacency.

The FBI’s tally board includes various crime types, population groupings, and geographic divisions.  And, reportedly, the welcome plunge in lawlessness occurred for all offense categories, in cities large and small, and from east coast to west coast.  That said, the FBI statistics do not distinguish crime trends by neighborhood, social class and race.  The crime rate glory days may be good for America, but not for all Americans.  The large drop in violent crime is not exactly consistent with the experience of many citizens who live in certain impoverished sections of Detroit, Baltimore, Newark and elsewhere, and for whom the frightening sound of gunfire is a much too frequent occurrence....

From 2000 to 2009, the number of police officers per 1,000 residents in cities with populations of 250,000 and over has declined by 11% overall.  As a result, many police departments have been forced to scale down certain special programs.  Back to basics for men and women in blue has meant a reduction or elimination of anti-gang units and community policing efforts.

It has been in some of the poorest and most crime-infested neighborhoods where the negative effects of police budget cuts have hit the hardest.  Over the past decade, city police departments have been asked to do more, but with less.  The emphasis on homeland security and the attempt to protect potential targets of terrorism have left many hometowns unsecured against ordinary street violence.

In the short-term, at least, Federal stimulus funds have been used to supplement police department budgets and expenditures for other crime fighting initiatives.  And, according to U.S. Attorney General Eric Holder, this has contributed to lowering crime rates.  "In 2009 the Obama administration provided over $4 billion in support to law enforcement and criminal justice initiatives through the American Recovery and Reinvestment Act, including $1 billion in COPS funding to keep police officers on the street," Holder said.  "Investments in law enforcement play a significant role in reducing violent and property crime."

Unfortunately, the healthy decline in aggregate crime rates can easily be used to justify further budget cutting for law enforcement and other areas of the criminal justice domain. Those who advocate lowering taxes to benefit beleaguered wage earners might want to think twice: A few extra dollars in the pocket is of little value if you’re staring down the wrong end of a gun.

Notwithstanding the FBI report, we can never solve the crime problem; we only control it.  If we grow too complacent and recklessly seek to trim the fat, crime levels can easily rebound. It is wonderful that crime rates are at a relative low point. It will be a significant challenge to keep them that way.

September 15, 2010 in Data on sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2) | TrackBack

North Carolina clergy urging end to state's use of capital punishment

Religion and sentencing are mixing again in North Carolina, as detailed in this local article headlined "Asheville pastors: SBI crime lab woes show need to eliminate death penalty." Here are the basics:

North Carolina's criminal justice system is so fraught with cheating that lawmakers should eliminate the death penalty to keep innocent people from being executed, local pastors and an exonerated death row inmate said Tuesday.

Speaking at a news conference in front of the Buncombe County Courthouse, participants said recent revelations about fraud in the State Bureau of Investigation crime lab only underscore an enduring problem. “Our faith in the criminal justice system is shaken, but our resolve to make it better (is) not,” said the Rev. Jim Abbott of St. Matthias' Episcopal Church. “We are deeply concerned innocent people may have been wrongly convicted.”

Abbott and others cited a report issued last month concluding that the SBI crime lab omitted, overstated or falsely reported blood evidence in dozens of cases, including three that ended in executions....

The Rev. Joe Hoffman, pastor of First Congregational United Church of Christ, called on Gov. Bev Perdue to commute the sentence of death row inmates to life in prison. “This system has exposed itself for what it is,” Hoffman said. “Unfairness and racial injustice have been present in our system for a very long time. We do not end violence by being violent.”

Some older posts on religion and the death penalty:

September 15, 2010 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

"NBC's outlandish 'Outlaw' richly deserves death penalty"

In part because the headline mentions the death penalty, and in part because it readily allows me (and perhaps others) to save space on my DVR, I had to link and quote this amusing review in USA Today about one of the notable new law shows premiering on network television this fall.  Here is the start of the review:

Surely NBC's joking.

There's awful, and then there's atrociously, hilariously awful — a line NBC and Jimmy Smits soar across with Outlaw.  A gambling, womanizing, conservative Supreme Court justice who chucks the court to become a crusader for the outcast and oppressed?  That's not a prime-time show, it's a Saturday Night Live sketch.

Preposterous to a painful degree, Outlaw is a vanity-show concept only an actor could love. Who wouldn't want to play a larger-than-life devil on the outside/saint on the inside who's worshiped and adored by the right-thinking and loathed and feared by evildoers?  If only Smits had noticed that his playboy card-shark jurist was a dramatic contradiction in terms: a sanctimonious sinner, an intolerably smug one to boot.

September 15, 2010 in Television | Permalink | Comments (10) | TrackBack

September 14, 2010

"Racial Disparity in the Wake of the Booker/Fanfan Decision: An Alternative Analysis to the USSC’s 2010 Report"

The title of this post is the title of this notable new paper from a set of criminologists that is now available via SSRN. Here is the abstract:

The U.S. Sentencing Commission (USSC) released a report in March 2010 concluding that racial disparity in federal sentencing has increased in the wake of the U.S. Supreme Court decisions in U.S. v. Booker (2005) and U.S. v. Gall (2007).  In light of this USSC report, we provide an alternative set of analyses which we believe provides a more complete and informative picture of racial, ethnic, and gender disparity in federal sentencing outcomes. We first attempt to replicate the USSC’s models.  Then we present alternative models of sentencing outcomes across three time periods spanning FY 2000 to 2009.

We find that post-Booker/Gall race/ethnic/gender disparity in sentence length is generally comparable to pre-2003 levels.  Our findings mainly diverge from the USSC’s because of: 1) the USSC’s decision to include non-incarceration cases in the sentence length analysis (as sentence lengths of 0), since more racial disparity appears to be manifest in the incarceration decision than in sentence lengths, and 2) the inclusion of immigration offenses in the USSC’s analyses, since comparatively greater disparity affecting black males is observed among immigration offenses.  We also extend the USSC report by: 1) presenting analyses that compare post-Booker sentence length disparity with disparity before the 1996 U.S. v. Koon decision, and 2) presenting an analysis of disparity in departures/deviations from the Guidelines.

September 14, 2010 in Booker and Fanfan Commentary, Booker in district courts, Detailed sentencing data | Permalink | Comments (24) | TrackBack