September 14, 2010
"California marijuana vote draws unlikely foes, allies into ring"The title of this post is the headline of this new CNN piece. Here are snippets from a lengthy and effective piece:
California is hardly homogenous, but marijuana legalization makes politics downright confusing in a state where the sides are sometimes flipped. Here, some ex-cops, state assemblymen and billionaire businessmen favor legalization, while there are pot growers and dealers who want to keep it outlawed.
Experts say predicting the ballot's outcome is impossible because special interests for both sides will storm the state ahead of the vote, hoping to pull fence-straddlers into their camps.
On Monday, every head of the Drug Enforcement Administration, past and present, appeared at a news conference to say they were "gravely concerned" by the upcoming vote. They asked the White House to sue California, as it did Arizona over the immigration issue....
Polls over the last year show more Californians favor legalization than oppose it and that California has a substantially higher tolerance for legalization than the rest of the country.
Don't expect that to translate into the referendum's passage, said NORML's St. Pierre. Those for and against the measure will pump millions of dollars into PR campaigns in coming weeks, which could have a substantial effect on public opinion. St. Pierre estimated proponents will need up to $12 million to pass the measure. "This thing's a wobbler," St. Pierre said. "This thing is going to win or lose by 2 percent in November."
Show-Me State now showing sentencing judges information about the costs of punishmentsThe St. Louis Post-Dispatch has this fascinating new article headlined "Missouri judges get penalty cost before sentencing." Here is how it begins:
Justice in Missouri now comes with a price tag.
It is the first state to provide judges with defendant-specific data on what particular sentences would cost the taxpayers, and on the likelihood that the person in the dock will reoffend.
Not everyone is happy about it. "I don't think it has any purpose in a process of balancing justice," complained Jack Banas, the St. Charles County prosecuting attorney. "Justice doesn't come down to dollars and cents. You have to look at the system as a whole picture."
But Kristy Ridings, a defense lawyer practicing in St. Louis, said: "I think it's fantastic. It gives us more argument to look at alternative sentences. There are resources in the community that are not only more effective, but cheaper."
Using information provided online, judges across the state can consider the cost of any sentence — from prison time to probation. The information may soon be included in formal presentence reports.
Experts say Missouri is the only state to distribute an invoice on a case-by-case basis. "We're seeing a trend where judges are asking for more evidence about best practices," said Greg Hurley, of the National Center for State Courts. "They are looking at an offender's track record and other predictive data that may show which treatments or programs may work best to cut down on recidivism." But no other state is injecting the cost of a particular sentence into the conversation, Hurley said.
Barbara Tombs, of the Washington, D.C., Sentencing Commission, said states commonly require corrections officials to draw up "economic impact statements" whenever they plan to change a penalty or create a new criminal violation. Such reports include added costs of prison beds, corrections officers and probation workers.
However, Tombs said, she has never before seen numbers broken down for an individual case and handed to a judge before sentencing. "I don't know of any state doing this except Missouri," she said. "I don't know enough about it to know whether it's a good idea or not."
The cost and recidivism statistics come from the Missouri Sentence Advisory Commission, an agency created by the Legislature to help judges find appropriate sentences. While some judges may choose to ignore the data, officials expect others to consider the price tags in finding alternative sentences that may cost less and provide better rehabilitation.
The commission began publishing the information in August, after several judges suggested it. Costs are figured by a formula. The state Department of Corrections was already calculating recidivism statistics compiled from hundreds of thousands of cases over the last decade.
Missouri Supreme Court Judge Michael Wolff, who leads the sentencing commission, said, "The court system should consider all data, including cost, when trying to decide the best way to use its resources for sentencing." He added, "If community-based alternatives show to be more successful and cost less, judges should consider them." Wolff noted: "Obviously, at the end of the day, it is up to the judge to decide the sentence. They are just more informed with this data."
Though I understand why Barbara Tombs might have reservations about this innovation before knowing all the details, I feel very strongly that Missouri is pioneering an important and valuable revolution in sentencing procedure. Though I understand the instinct that case-specific sentencing justice should not be assessed only with a financial spreadsheet, I think it is critical (especially in these lean budget times) to do everything possible to ensure that criminal justice decision-makers have reliable data on the likely benefits and costs of various punishment options.
As regular readers know, I think one of the strongest arguments against harsh punishments is an economic one: incarceration is a costly way to try to improve public safety, and there are reasons to fear that, at least for some (many?) non-violent offenders, we may not generally be getting a good public safety bang for our prison bucks. In all areas of government, decision-makers should have their policy choices informed by sound data about the costs and benefits of various potential expenditures of state resources. We should want --- indeed, we probably should come to expect and demand as taxpayers --- that sentencing judges have sound economic cost/benefit data when making punishment choices.
Moreover, as long as all the cost data is available to all, advocates for the state and for the defendant will be able to help a sentencing judge consider different was to assess and incorporate available cost/benefit data into punishment decision-making. Subject to whatever statutory sentencing instructions exist in Missouri, prosecutors and defense attorneys will be able to develop arguments and advocacy the urge judges in individual cases to give lots or little weight to cost issues in light of each case's unique circumstances. In other words, in the sentencing context, we need not worry about "bean-counters" making consequential policy decisions without transparency or reasoned arguments about just when values and concerns other than just costs ought to be of greater concern than just dollars and cents.
In short, huzzah for Missouri and here is hoping other states follow suit.
September 14, 2010 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (5) | TrackBack
"Confessing to Crime, but Innocent"The title of this post is the headline of this piece in today's New York Times. Here are excerpts:
[M]ore than 40 [persons] have given confessions since 1976 that DNA evidence later showed were false, according to records compiled by Brandon L. Garrett, a professor at the University of Virginia School of Law. Experts have long known that some kinds of people — including the mentally impaired, the mentally ill, the young and the easily led — are the likeliest to be induced to confess. There are also people like Mr. Lowery, who says he was just pressed beyond endurance by persistent interrogators.
New research shows how people who were apparently uninvolved in a crime could provide such a detailed account of what occurred, allowing prosecutors to claim that only the defendant could have committed the crime. An article by Professor Garrett draws on trial transcripts, recorded confessions and other background materials to show how incriminating facts got into those confessions — by police introducing important facts about the case, whether intentionally or unintentionally, during the interrogation.
To defense lawyers, the new research is eye opening. “In the past, if somebody confessed, that was the end,” said Peter J. Neufeld, a founder of the Innocence Project, an organization based in Manhattan. “You couldn’t imagine going forward.”...
Of the exonerated defendants in the Garrett study, 26 — more than half — were “mentally disabled,” under 18 at the time or both. Most were subjected to lengthy, high-pressure interrogations, and none had a lawyer present. Thirteen of them were taken to the crime scene....
Some defendants’ confessions even include mistakes fed by the police. Earl Washington Jr., a mentally impaired man who spent 18 years in prison and came within hours of being executed for a murder he did not commit, stated in his confession that the victim had worn a halter top. In fact, she had worn a sundress, but an initial police report had stated that she wore a halter top.
Steven A. Drizin, the director of the Center on Wrongful Convictions at the Northwestern University School of Law, said the significance of contamination could not be understated. While errors might lead to wrongful arrest, “it’s contamination that is the primary factor in wrongful convictions,” he said. “Juries demand details from the suspect that make the confession appear to be reliable — that’s where these cases go south.”
Jim Trainum, a former policeman who now advises police departments on training officers to avoid false confessions, explained that few of them intend to contaminate an interrogation or convict the innocent. “You become so fixated on ‘This is the right person, this is the guilty person’ that you tend to ignore everything else,” he said. The problem with false confessions, he said, is “the wrong person is still out there, and he’s able to reoffend.”
Mr. Trainum has become an advocate of videotaping entire interrogations. Requirements for recording confessions vary widely across the country. Ten states require videotaping of at least some interrogations, like those in crimes that carry the death penalty, and seven state supreme courts have required or strongly encouraged recording.
September 13, 2010
Violent crime rates continuing to drop, according to latest FBI numbers
More good news this year on crime rates, as detailed in this Reuters report on the latest data from the FBI:
Violent crime in the United States fell in 2009 for the third straight year, with the number of murders dropping to a level not seen in four decades, according to FBI statistics released on Monday.
Violent crime dropped 5.3 percent in 2009, including a 7.3 percent decline in murders, an 8 percent drop in robberies, a 4.2 percent decline in aggravated assaults and 2.6 percent fall in rapes, according to the final 2009 statistics.
There were 15,241 murders in 2009, authorities reported to the FBI, a level not seen since 1969 when there were 14,760, according to the Justice Department. The number of murders came close to that level in 1999 when there were 15,522.
Property crimes in the United States also fell last year, by 4.6 percent, with motor vehicle thefts plummeting 17.1 percent and burglary down 1.3 percent, the FBI said....
"Although there are many reasons behind the decline, one thing is certain: smarter policing practices and investments in law enforcement play a significant role in reducing violent and property crime," U.S. Attorney General Eric Holder said in a statement.
While there were declines in the crime rates across the board, the FBI statistics showed increases in residential burglaries, up 1.8 percent, and a larger spike in reported shoplifting, rising 7.9 percent.
There sure were a lot of arrests: The FBI estimates agencies nationwide made about 13.7 million arrests, excluding traffic violations.
The most arrests were for drug offenses: 1.6 million.... Of the drug arrests, 81% were for possession and 18% for manufacturing/distribution. Of the possession arrests, 45% were for marijuana.
Though many of the usual policy advocates may try to spin these numbers in differing ways to support their reform agendas, everyone should take a moment to simply celebrate the fact that crime rates keep declining. And all the folks working in the criminal justice system who are committed to helping enhance public safety should be given a collective pat on the back for their hard work and successful efforts.
"Zapping Inmates To Control Them: Harmless Or Torture?"The title of this post is the headline of this recent NPR story which discusses the latest hot new technology that hopes to help to keep prisoners in line. Here are excerpts:
Los Angeles authorities have unveiled a new high-tech device designed to control rowdy inmates: a mechanism that blasts millimeter beams that simulate intense heat. At the Pitchess Detention Center, north of Los Angeles, officials recently showed off their latest tool, which resembles a supersized dental X-ray machine with a flat screen on top. It works like something out of Star Trek.
"You know when they set their phasers to stun, they did that so they didn't kill people? Well, that's exactly what this is. It does stun you," says Mike Booen, a vice president of Raytheon Missile Systems. The company built the device for the Los Angeles County Jail, a scaled-down version of what it designed for the military.
"I don't care if you're the meanest, toughest person in the world," he says, "this will get your attention and make your brain focus on making it stop, rather than doing whatever you were planning on doing."...
Dave Judge, the operation deputy for the sheriff's department, says the machine is more effective than their usual methods of firing rubber bullets and tear gas grenades. "This is tame; this is mild," Judge says. "This is a great way to intervene without causing any harm. The nice thing about this is it allows you to intervene at a distance."...
Raytheon's Booen says the device sends out millimeter waves, creating a harmless, but intense sensation. "It penetrates about a 64th of an inch under your skin," Booen explains. "That's about where your pain receptacles are. So it's what it would feel like if you just opened up the doors of a blast furnace. You feel this wave of heat immediately."...
Three years ago, the Department of Defense demonstrated a bigger version of the device it considered using. During one simulation, it repelled a pretend group of protesters with the "Active Denial System" direct energy weapon mounted on a military vehicle.The U.S. Joint Non-Lethal Weapons Programs reportedly never actually used the device in Afghanistan, but a spokeswoman says they are considering related technology.
Now, Los Angeles has been given a smaller, civilian version of the same device free. But the ACLU says that's a bad idea. "We're going to use people in the jails as guinea pigs for some mega arms builder to test their device," ACLU attorney Peter Eliasberg says.
He sent a letter to L.A. Sheriff Lee Baca asking him to reconsider using what he says has the potential to be a torture device.... Eliasberg says some tests of the millimeter device have badly burned people with repeated zaps. And he notes that Los Angeles deputies have a documented history of abusing inmates. Eliasberg suggests a better solution would be to prevent the overcrowded conditions that trigger jail riots in the first place.
Eleventh Circuit extends(?!) Padilla to misadvice about potential civil commitment of sex offenderI happen to be traveling back today from Florida where I had the honor and pleasure to speak to a group of Florida state appellate judges about the work and possible impact of the Supreme Court in recent cases such as Graham v. Florida and Padilla v. Kentucky. In the course of that discussion, I asserted that the Sixth Amendment ruling in Padilla might readily get extended to cases involving the potential collateral consequences of pleading guilty to a sex offense. And, perhaps as I was speaking, the Eleventh Circuit demonstrated my wisdom by handing down a notable little per curiam ruling in Bauder v. Department of Corrections State of Florida, No. 10-10657 (11th Cir. Sept. 13, 2010) (available here). Here are key parts of the unanimous panel's work in Bauder:
The State of Florida appeals the district court’s grant of Gary William Bauder’s petition for habeas corpus under § 2254, in which the district court ruled that Bauder’s criminal defense attorney was ineffective by misadvising Bauder regarding the possibility of being civilly committed as a result of pleading to a charge of aggravated stalking of a minor....
The State raises two arguments on appeal. First, the State argues that the district court clearly erred in finding that Bauder’s counsel misadvised Bauder on the collateral consequence of civil commitment stemming from his plea. Based on counsel’s testimony described above, we cannot say that the district court’s factual finding that counsel misadvised Bauder is clearly erroneous.
Second, the State argues that the district court erred in ruling that counsel’s performance was deficient because the issue of whether Bauder would be subject to civil commitment was being litigated at the time of Bauder’s plea. In support, the State cites a number of cases holding that attorneys cannot be found to have deficient performance when they fail to anticipate changes in law. While it is true that attorneys are not expected to anticipate changes in the law, this case does not involve a change in the law. Fla. Stat. § 394.910, et seq., was passed in 1999, years before Bauder’s plea. Even if one could argue that the law was unclear, the Supreme Court has noted that when the law is unclear a criminal defense attorney must advise his client that the “pending criminal charges may carry a risk of adverse [collateral] consequences.” Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010).
Counsel’s deficient performance was not his inability to anticipate a ruling on the interpretation of the Florida civil commitment statute. Rather, his deficient performance was his affirmative representation that Bauder would not be exposing himself to further detention past his sentence were Bauder to plead to the charge of aggravated stalking. Here, counsel did not tell Bauder that there was a possible risk of civil commitment, or that the law was unclear as to whether it could apply to Bauder, or that he simply did not know. Rather, counsel told Bauder that pleading to the criminal charge would not subject Bauder to civil commitment, and this constituted affirmative misadvice. For these reasons, the district court’s grant of Bauder’s petition for habeas corpus is AFFIRMED.
Hitler's dog makes sentence procedurally unreasonableness, according to Seventh Circuit
The headline of this post is a bit inaccurate and perhaps unduly inflammatory. Nevertheless, it is the presence of Hitler's dog that in part makes blog-worthy the Seventh Circuit's work today US v. Figueroa, No. 09-3333 (7th Cir. Sept. 13, 2010) (available here). Here is an explanatory section from the start of the panel opinion:
The district court sentenced Figueroa to 235 months’ imprisonment. This represented the low end of Figueroa’s advisory guidelines range, and so on its face there is nothing remarkable about his sentence either. But the process the district court used to get there — in particular, its extraneous and inflammatory comments during the sentencing hearing — cast doubt on the validity of the sentence. During the hearing, the district court digressed to discuss Figueroa’s native Mexico, the immigration status of Figueroa and his sisters, and the conditions and laws in half a dozen other countries — not to mention unnecessary references to Hugo Chávez, Iranian terrorists, and Adolf Hitler’s dog. We have no way of knowing how, if at all, these irrelevant considerations affected Figueroa’s sentence. We therefore must remand, to ensure that the district court’s choice of sentence was based only on the criteria that Congress has authorized. See 18 U.S.C. § 3553.
"The Concept of Evil in American and German Criminal Punishment"The title of this post is the title of this very interesting new article by Joshua Kleinfeld appearing on SSRN. Here is the abstract:
The gap in harshness between American and German criminal punishment represents a moral disagreement between the two societies: American criminal punishment expresses a belief in the concept of human evil, while German criminal punishment denies that belief. This paper, after giving the concept of evil some philosophical definition, develops that thesis with six lines of argument.
First, contrasting American and German responses to major crime, the paper argues that American criminal law routinely banishes its worst criminal offenders, while German criminal law almost never does. Second, as to minor crime, American law treats misdemeanors as portents of worse things to come, while German law treats them as errors. Third, in the context of recidivism, America punishes the person, Germany the act. Fourth, with regard to community reintegration, American law approaches ex-cons with a concept this paper terms “residual criminality,” while German law adopts norms of full forgiveness. Fifth, as to capital punishment, America treats the right to life as alienable for wrongdoing; Germany treats that right as inalienable. And sixth – turning here from interpreting criminal doctrine and practice to analyzing the historical record – the paper shows that various players in the American criminal system have given voice to the belief in criminal evil, while major players in the German system have expressly denied that belief.
The paper concludes by asking which system is more just, arguing that German criminal law is naive for denying the existence of evil where it should be acknowledged, while American criminal law is reckless for rolling genuine evil together with mere error and failure and punishing them all alike.
Interesting judicial perspective on prison overcrowding in AlabamaThis local story from Alabama, which is headlined "Overcrowded prisons open Madison County judge's eyes," provides interesting background with how the state's judiciary is looking at the problems of prison overcrowding. Here are excerpts:
With state prisons stuffed beyond capacity and no signs of any slowdown in the volume of drug and theft cases that fill court dockets, Alabama's judges are being asked to rethink the sentences they issue.
The message came last week as all Alabama judges with power to sentence prisoners were invited by Alabama Chief Justice Sue Bell Cobb to a three-day meeting in Montgomery. Cobb wants to find ways to reduce jail overcrowding and still enforce Alabama's laws in the face of significant state budget problems.
She has said Alabama's prisons are operating at 195 percent of capacity, making it the most crowded state prison system in the U.S. Alabama has the nation's sixth highest incarceration rate; state prison costs quadrupled in 20 years to $577 million a year in 2008, and half of all new inmates in the system in 2009 were imprisoned for drug offenses, according to the chief justice.
Madison County Presiding Circuit Judge Karen Hall, who attended the conference, said the tours she took of Elmore and Tutwiler prisons are causing her to rethink how she sentences young male and female offenders.
Hall said the Alabama Legislature needs to address the lack of prison space and the lack of programs offering rehabilitation or skills training. "I saw 195 men in a dorm that was 96 degrees," she said. "They can go to church; they can play basketball or lift weights in their yard, and that's it. They need to be doing something.
"What it has done for me is made me rethink how I will handle those who are considered low-risk, especially young males, young females, and maybe give one more chance before I send them down there." Hall favors the addition of work camps and boot camps and halfway houses to bolster the state's alternative sentencing system.
She said Madison County enjoys a good reputation with its approach to alternative sentencing, which includes a drug court, a mental health court and a family drug court. Hall said there are clearly some counties where judges simply lock everybody up....
Alan Mann, a former prosecutor and longtime defense attorney who is running for the newly created circuit judge position, said the problems of prison overcrowding and how sentencing should work are fueled by sheer volume and a basic misunderstanding. "The rub is, there's always going to be some disconnect between the public and the reality of the problem," Mann said. "Every politician runs on being tough on crime, cleaning up the streets. But that's not the reality; (the case volume) never stops. So the rubber meets the road in the courtroom with the judge, the DA and the defense attorney."...
Mann said even alternative programs can prove to be too expensive or too time-consuming for some of his drug-offense clients, who instead opt for probation. "I'm told by many clients they simply can't afford it, it costs more than it does to pay a probation officer," he said. "Then again it takes money to run it. There are no easy answers to these things."
September 12, 2010
"Obama backs off strict crime policy"The title of this post is the headline of this extended new piece from Josh Gerstein from Politico. The piece covers a lot of federal sentencing law and policy ground that should be familiar to readers of this blog, and here are excerpts:
For years, it was one of the GOP’s most potent political epithets – labeling a Democrat “soft on crime.” But the Obama White House has taken the first steps in decades to move away from a strict lock-‘em-up mentality on crime – easing sentences for crack cocaine possession, launching a top-to-bottom review of sentencing policies and even sounding open to reviewing guidelines that call for lengthy prison terms for people convicted of child pornography offenses.
The moves – still tentative, to be sure — suggest that President Barack Obama’s aides are betting that the issue has lost some of its punch with voters more worried about terrorism and recession. In one measure of the new political climate surrounding the issue, the Obama administration actually felt free to boast that the new crack-sentencing bill would go easier on some drug criminals....
Despite the tentative moves in the direction of lessening some sentences, there remain numerous signs that Obama and his aides recognize that the issue could still be politically damaging.
When Obama signed the crack disparity bill, only still photographers were allowed in and the president issued no formal statement. The Justice Department’s sentencing review group has indicated it has no plan to issue a formal report that could become a political football. And, 18 months into his presidency, Obama has yet to issue a single commutation or even a pardon to an elderly ex-con seeking to clear his record.
Some advocates note that the crack sentencing bill was not particularly ambitious: it reduced the crack/powder disparity from 100-to-1 to 18-to-1. And it wasn’t retroactive, so some who were sentenced under mandatory minimum laws may not benefit.
Asked whether Obama might grant requests to commute the sentences of those who would have gotten less punishment if they committed their crimes today, an administration official said the crack-disparity bill “reflected Congress’s judgment that the law should not be retroactive, [and] the President believes that the Fair Sentencing Act will go a long way toward ensuring that our sentencing laws are tough, consistent, and fair.”
The official also downplayed the notion Obama might offer some kind of blanket clemency for earlier crack-cocaine offenders, saying that “as a general matter, the President agrees with the Department of Justice’s long-held view that commutation is an extraordinary remedy that should only be granted in extraordinary circumstances.”
John Grisham finds mysterious Virginia's application of the death penaltyFamed lawyer-author John Grisham has this long commentary in Sunday's Washington Post, which is headlined "Teresa Lewis didn't pull the trigger. Why is she on death row?". Here are excerpts:
The Commonwealth of Virginia already has a serious relationship with its death penalty. In the past three decades, only Texas has executed more inmates. But on Sept. 23, the Old Dominion will enter new territory when it executes a female inmate for the first time in nearly a century.
Her name is Teresa Lewis, she is the only woman on death row at the Fluvanna Correctional Center for Women, and her appeals have all but expired. If she is executed, she will become another glaring example of the unfairness of our death
In this case, as in so many capital cases, the imposition of a death sentence had little do with fairness. Like other death sentences, it depended more upon the assignment of judge and prosecutor, the location of the crime, the quality of the defense counsel, the speed with which a co-defendant struck a deal, the quality of each side's experts and other such factors.
In Virginia, the law is hardly consistent. There have been other cases with similar facts -- a wife and her lover scheme to kill her husband for his money or for life insurance proceeds. But there is no precedent for the wife being sentenced to death. Such inconsistencies mock the idea that ours is a system grounded in equality before the law.