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October 15, 2010

FSR October 2010 issue, "Life Without Parole," now available on-line

I am pleased to report that the October issue of the Federal Sentencing Reporter, which is full of cutting edge analysis and commentary on the topic of "Life Without Parole, is now available on-line.  The Table of Contents for this latest FSR issue can be accessed at this link, and the full issue and/or a full subscription to the Federal Sentencing Reporter can be ordered on-line here.)

Professor Michael O’Hear, the chief FSR editor who assembled a great set of articles, authored an opening commentary, entitled "The Beginning of the End for Life Without Parole?", and this introductory essay can be downloaded at this link.   The other major piece in this terrific FSR issue are listed below:

ARTICLES

COMMENTARY ON GRAHAM & SULLIVAN

October 15, 2010 in Assessing Graham and its aftermath, Recommended reading, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Vrdolyak gets 10 months in prison upon resentencing after Seventh Circuit reversal of his probation term

As detailed in this local article, which is headlined "10 Months in Prison for 'Fast Eddie' Vrdolyak: Previous sentence for guilty plea on mail, wire fraud charges was overturned by appellate court. A high-profile resentencing produced a higher sentence the second time around. Here are the basics:

Judge Matthew Kennelly on Friday sentenced former alderman Ed Vrdolyak to 10 months in prison, followed by five months work release and home confinement.

Prosecutors had asked Kennelly to sentence Vrdolyak to 41 months in prison for his role in a kickback scheme involving a Chicago medical college.

Previously, Vrdolyak received probation for the offense.  But an outraged U.S. Attorney's office appealed, and the appellate court ordered that he be resentenced.

"This is not a one-time faulty judgment," prosecutor Chris Niewoehner told judge Matthew Kennelly. "He is powerful.  He is wealthy.  He is privileged.  He has all these things going for him, and still he commits this crime."

Niewoehner called the 69-year-old Vrdolyak's scheme a "classic insider deal," and he said demanded that a message be sent.  "The rich and the powerful in this city are judged by the same standards as anybody else," said Niewoehner.

Defense lawyer Mike Monico countered that Vrdolyak had already performed hundreds of community service hours, as ordered in his probation sentencing.  "It is clear that this is a better news story if Mr. Vrdolyak is seen as a villain," Monico said.  "He is a decent man. He is as shamed as a person could possibly be."...

Vrdolyak pleaded guilty in 2008 to conspiring with Rosalind Franklin University of Medicine and Science board member Stuart Levine.  The two plotted to split a $1.5 million kickback from selling property owned by the university.  Vrdolyak later pled guilty to federal charges of conspiring to commit wire fraud and mail fraud.

Related posts:

October 15, 2010 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1) | TrackBack

US Sentencing Commission action to implement FSA and new crack guidelines

As detailed in this public notice, the United States Sentencing Commission has a public meeting scheduled for this afternoon in DC, and the agenda includes "Possible Vote to Promulgate Emergency, Temporary Amendment (implementing the statutory changes regarding crack cocaine offenses and directives regarding drug trafficking offenses generally set forth in the Fair Sentencing Act of 2010."   These proposed amendments were previously set out by the USSC here.

Relatedly, the USSC has now posted here the materials "received by the Commission in response to its request for public comment (implementing the statutory changes regarding crack cocaine offenses and directives regarding drug trafficking offenses generally set forth in the Fair Sentencing Act of 2010."   Here are links to all this stuff:

U.S. Department of Justice

Rep. John Conyers, Jr., Chair of the House Committee on the Judiciary and Rep. Robert C. "Bobby" Scott, Chair of the House Subcommittee on Crime, Terrorism, and Homeland Security

Senator Richard J. Durbin

Probation Officers Advisory Group

Federal Public and Community Defenders

National Association of Criminal Defense Lawyers

Families Against Mandatory Minimums

American Civil Liberties Union

The Sentencing Project

Citizen Letters

UPDATE:  As detailed in this news release, on late Friday "the United States Sentencing Commission voted to promulgate a temporary, emergency amendment to the federal sentencing guidelines consistent with the statutory changes to crack cocaine and other drug trafficking offenses made by the Fair Sentencing Act of 2010 [which] will take effect on November 1, 2010."

The release explains that the "Commission estimates that the new average sentence for trafficking in crack cocaine will be 101 months, a 13.7 percent decrease in average sentence length. The Commission estimates that more than 1,500 prison beds will be saved after five years and that more than 3,800 beds will be saved after ten years."

October 15, 2010 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (3) | TrackBack

Lots of law profs sign petition support California's pot proposition

As Ilya Somin notes in this post over at The Volokh Conspiracy, the group Yes on 19 has posted here a petition by law professors in support of the California proposition that would decriminalize marijuana in that state. As Ilya notes six of the Volokh Conspirators are singers, as are many other prominent law professors "including Erwin Chemerinsky, Alan Dershowitz, Paul Butler, and David Friedman (well-known law and economics scholar and son of Milton)."  I have also signed my name to this petition, which includes these notable passages:

As law professors at many law schools who focus on various areas of legal scholarship, we write this open letter to encourage a wholesale rethinking of marijuana policy in this country, and to endorse the Tax and Control Cannabis 2010 initiative — Proposition 19 — that will be voted on in November in California.

For decades, our country has pursued a wasteful and ineffective policy of marijuana prohibition. As with alcohol prohibition, this approach has failed to control marijuana, and left its trade in the hands of an unregulated and increasingly violent black market.  At the same time, marijuana prohibition has clogged California’s courts alone with tens of thousands of non-violent marijuana offenders each year.  Yet marijuana remains as available as ever, with teens reporting that it is easier for them to buy than alcohol across the country....

Especially in the current economic climate, we must evaluate the efficacy of expensive government programs and make responsible decisions about the use of state resources. We find the present policies toward marijuana to be bankrupt, and urge their rethinking.

This country has an example of a path from prohibition.  Alcohol is subject to a regulatory framework that is far safer in every respect than the days of Al Capone.  Just like the State of New York did when it rolled back Prohibition 10 years before the nation as a whole, California should show leadership and restore respect for the law by enacting the Tax and Control Cannabis 2010 initiative this November.

There is no reason to believe that this petition is likely to sway many (or even any?) voters, but it is nice to be able to go on record in this way concerning Proposition 19.  An I especially like seeing a notable group of law professors endorsing the important idea that "we must evaluate the efficacy of expensive government programs and make responsible decisions about the use of state resources."

October 15, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (9) | TrackBack

Significant findings on the varied impacts sex offender registration/notification regimes

This press release from the Medical University of South Carolina, which is headlined "Questioning the Effectiveness of Sex Offender Registries," reports on some notable new research findings concerning sex offender registration/notification regimes.  Here are some highlights:

Two federally-funded MUSC studies on South Carolina's sex offender registration and notification system and its effect on community safety revealed that prosecutors often pursue non-sexual charges or fail to get convictions for sex crimes since the registry was enacted in the mid-90's.  The studies also found that the current system for convicted sex offenders often did not deter them from committing similar crimes.

Lead investigator for both studies, Elizabeth Letourneau, Ph.D., MUSC associate professor of psychiatry and behavioral sciences, said the findings show that the current state and federal laws for registering sex offenders and notifying communities about their locations need to be revamped....

While noting that registries and notification systems are well-intended and strongly supported by most citizens, Letourneau's research has highlighted numerous problems, and prompted the thought that the state is annually spending an untold amount of money to support an ineffective system.

With respect to Letourneau's adult-focused project, the most interesting results were:

  • Both registration and online notification were associated with significant increases in plea bargains, where defendants were permitted to plead to non-sex offense charges;
  • Adult defendants who were actually prosecuted for sex crimes (who did not plead) were significantly less likely to be found guilty after online registration was enacted;
  • Similar plea bargain results were found for juvenile defendants, whose rates of pleading to non-sex offense charges more than doubled after South Carolina's policy was enacted. Prosecutors also dismissed significantly more juvenile sex crime cases after South Carolina's policy was enacted;
  • Defendants whose charges are dismissed outright, pleaded to non-sex offense charges or acquitted are unlikely to receive specialized treatment or supervision that might reduce recidivism. The message to their victims is that these offenses were not serious enough to convict;
  • There was one positive finding, that registration (but not online notification) was associated with a prevention or deterrent effect for adults. That is, two to three new sex crimes that would have been committed by first-time offenders were averted each month after the initial registration policy was implemented....

Based on their results and other empirical studies, Letourneau and colleagues detail specific suggestions to strengthen registration and notification policies.  Letourneau argues that objective risk assessments should influence registration and notification requirements for adults. Such requirements should be dropped or severely curtailed for juveniles, given the complete absence of any outcomes supporting these policies with juveniles and given very low juvenile recidivism rates.  A policy that focuses primarily on high risk adult offenders-the type of offenders whose crimes spurred the creation of registration and notification policies in the first place -- is less likely to be subverted by judicial decision makers and more likely to have positive results on recidivism.

I have placed one of the reported research findings in bold because, though the tenor of the press release is critical of existing sex offender registration laws, the research appears to find that these laws in South Carolina are associated with two to three fewer new sex crimes by first-offenders each month. That result seems to me to be quite a positive and important finding concerning the value of sex offender registries, and it is one that should not get lost in concerns that registries are leading to (perhaps worrisome) changes in case-processing behaviors.

October 15, 2010 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Examining the challenges of dealing with violent juve offenders

The Orlando Sentinel has this effective new piece, headlined "Cycle of crime: Ever more young offenders sent to Florida adult courts," which examines the criminal justice challenges posed by violent juvenile offenders. Here are excerpts from the piece:

[A]n increasing number of juvenile felony offenders in Florida [have been] routed to adult court in the past five years because of the severity of their crimes.  Experts say the rising number of transfers shows a juvenile-justice system ill-equipped to handle young violent offenders.

The number of juveniles transferred to adult court has ebbed and flowed.  In the early 2000s, the numbers were high and then declined.  But by 2005, the numbers began steadily increasing, according to statistics from the Department of Juvenile Justice.... [I]n the fiscal year that ended in July 2009 — the most recent year for which data are available — more than 600 Central Florida juveniles were sent to adult court.

University of Central Florida criminal-justice professor Kenneth Adams said the increase reflects a systemwide conundrum when dealing with violent repeat young offenders: The juvenile-justice system — oriented toward rehabilitating children — offers few alternatives for punishing young offenders who pose serious threats to the community, he said....

About half of all youths who come in contact with the juvenile-justice system don't reoffend, statistics show.  But when minors engage in violent crime, Adams said, often the only choice prosecutors have is to transfer serious offenders to the adult system.

Prosecutors can choose to move teens as young as 14 to adult court for a serious violent felony.  If a youth is tried in juvenile court, the maximum sentence would keep him in prison until his 25th birthday.  In adult court, a juvenile can be sentenced to life in prison for the most serious crimes, such as murder.

"You don't get life sentences in the juvenile system," said Brad King, state attorney for the Fifth Judicial District, serving Hernando, Citrus, Sumter, Marion and Lake counties.  "If a prosecutor strongly believes the defendant will reoffend, you can't leave them in the juvenile system because they are going to get out."...

Stephen Dalsemer, director of the Orange Juvenile Assessment Center, said it's unfortunate Florida's juvenile laws are simply not strong enough, and sometimes "the best way to keep the public safe is to keep them [violent juvenile offenders] in the adult system."  Overall juvenile-crime rates are down, but Dalsemer said that "violent crime hasn't dropped off by that much."

Longtime Public Defender Bill White said Florida law is unclear about the sentencing guidelines for repeat juvenile offenders....  Most state attorneys will prosecute in adult court if the child is older than 14 with one prior felony offense because juvenile sanctions seem ineffective for protecting the public, he said.

October 15, 2010 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

October 14, 2010

"Where Do Your Representatives Stand On Pot?"

The title of this post is the headline of this notable local story out of San Diego, which gets started this way:

Elected officials in San Diego are either opposed to Proposition 19 or don’t want to make their position public, according to the results of a KPBS survey.

KPBS News surveyed 146 elected and appointed officials in the county - among them mayors, council members, city attorneys and police chiefs – on whether they support the ballot initiative that would regulate and tax marijuana just like alcohol.

Of the 146 people polled, 41 were opposed to Prop 19, three declined to state, and two had no opinion. The remainder did not respond to our survey.

Proposition 19 not only legalizes growing and possessing small amounts of recreational marijuana, it allows cities and counties to regulate and tax the commercial production and sale of marijuana. That means if the proposition passes, the same officials KPBS surveyed will decide whether their respective cities will allow pot sales and collect tax revenue from those sales.

October 14, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (9) | TrackBack

Sentencing jury in high-profile Connecticut case will not get to hear about capital costs

As detailed in this AP article, which is headlined "Conn. judge: Jury can't consider execution cost, " a state trial judge has today "ruled that a Connecticut man convicted of a deadly home invasion cannot bring up the cost of executions when jurors consider whether to impose the death penalty." Here's more:

New Haven Superior Court Judge Jon Blue ruled Thursday against attorneys for Steven Hayes, who wanted to include the cost of putting someone to death as a mitigating factor that might favor a life prison sentence.

The judge said jurors have the task of "using reasoned moral judgment, not counting dollars and cents" in deciding life-or-death punishment.

Hayes was convicted last week of murdering a woman and her two daughters in Cheshire in 2007.  The same jury will begin hearing evidence on his punishment Monday.

I have long thought, perhaps because I am often intrigued by law-and-econ analysis of legal problems, that exercising "reasoned moral judgment" sometimes demands "counting dollars and cents." But apparently not in the Nutmeg State.

Recent related posts:

October 14, 2010 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (12) | TrackBack

Potent dissent from the Sixth Circuit's denial of en banc review in Kentucky capital habeas case

Sixth Circuit judge Boyce Martin has a provocative dissent to this Sixth Circuit order denying rehearing en banc in the habeas action of a Kentucky death row inmate.  Judge Martin's dissent gets started and ends this way:

The rape and murder of Debbie Pooley was a heartbreaking and reprehensible act. But at Gregory Wilson’s murder trial, the state’s ignominy began. Of all the people involved in this case, only two have behaved in a manner worthy of the ideals of our justice system: the courageous Franklin Circuit Court judge who stayed Wilson’s execution; and Andrew Wolfson, the diligent Courier-Journal reporter who exposed the glaring deficiencies in Wilson’s trial.  I quote extensively from Mr. Wolfson’s article because he appears to have worked more conscientiously than many of the participants in this case, and he highlights how virtually every branch of our justice system failed — from the judiciary, which allowed a sex scandal between a colleague of the trial judge and Wilson’s co-defendant to jeopardize the fairness of Wilson’s trial; to the defense counsel, who were woefully unqualified and left Wilson abandoned at trial....

Nearly half a century after Gideon, its promise remains unfulfilled.  Capital defendants like Wilson are routinely appointed counsel without the experience, skill, or commitment to adequately represent them.  Much of the arbitrary and discriminatory nature of our current death penalty stems from the fact that quality of representation is the single greatest factor in determining when it is applied.  The proficiency of a capital defendant’s attorney should not mean the difference between life and death.  I hope that if any good comes from this egregious case, it might serve as a clarion call for a recommitment to achieving Gideon’s guarantee of competent counsel for all defendants.

Over my more than thirty years on the bench, Wilson’s trial stands out as one of the worst examples that I have seen of the unfairness and abysmal lawyering that pervade capital trials.  Although I will continue to apply the law of the Supreme Court as required by my oath, I must reiterate my belief that “the idea that the death penalty is fairly and rationally imposed in this country is a farce.”  Moore v. Parker, 425 F.3d 250, 270 (6th Cir. 2005) (Martin, J., dissenting).  To maintain the legitimacy of our adversarial system of justice, we must be confident that its two foundational components are sound: a neutral and fair arbiter, and adequate legal representation for both parties.  If either pillar is fractured, as in this case, then we are left with a system that does not function. Its results cannot be trusted, particularly when a life is at stake.  When a person is sentenced to death in a kangaroo court such as Wilson’s, with an illicit sexual affair taking place between a co-defendant and a colleague of the trial judge and no semblance of qualified defense counsel, it irreparably tarnishes our legal system.  Until we reform this broken system, we cannot rely on it to determine life and death.

October 14, 2010 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (31) | TrackBack

New York gets a permanant commission to help with sentencing "mess"

As reported in this New York Daily News article, which is headlined "Blue-ribbon panel commissioned to examine New York's sentencing laws," the Empire State has a new sentencing institution. Here are the particulars:

A blue-ribbon panel headed by a Brooklyn judge and Manhattan's top prosecutor aims to clean up New York's "confounding" sentencing laws. "The present sentencing laws are a mess," Chief Judge Jonathan Lippman told the Daily News. "They're like a hodgepodge with no rhyme or reason."

Lippman has called on a group of high-powered judges, defense lawyers and crime victims to carry out what he said will be the most far-reaching analysis of state sentences in 40 years.  Manhattan District Attorney Cyrus Vance Jr. and Brooklyn Supreme Court Justice Barry Kamins are in charge of the Permanent Sentencing Commission for New York State....

One of its missions is to find out whether sentences being meted by the state's judges serve as a useful deterrent to future crimes. "We don't know whether the offenders are prepared to live useful lives," Lippman said. "Are sentences too long or too short?"

"Four decades after most of our sentencing laws were passed, it's time for New York to focus on being smart on crime," Vance said. "This will mean longer sentences in some instances, while in others identifying appropriate cases for alternatives to incarceration," he said.

The panel also will look into whether alternative sentences can reduce the number of defendants sent off to state prisons....  Lippman said he hopes the panel will come up with a series of recommendations that can be presented to state lawmakers.

This press release reports on other members of the new commission.

October 14, 2010 in State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

October 13, 2010

Notable Seventh Circuit opinion reversing (on procedural grounds) long drug courier sentence

The Seventh Circuit has a interesting sentencing opinion today in US v. Saenz, No. 09-3647 (7th Cir. Oct. 13, 2010) (available here), which gets started this way:

Cruz Saenz received a whopping 293-month sentence for transporting drug money on one single occasion. The district court seemed to think that Saenz was involved in the conspiracy beyond this single incident and denied Saenz’s request for a minor participant reduction as a result . Finding no evidence in the record of any involvement beyond the single transport of money, we remand for the district court to reconsider whether Saenz should receive the minor role adjustment.

There are many passages from the Saenz opinion that are notable, and these portion of the court's opinion struck me as especially interesting:

It may be that when the district court said that Saenz was more than a courier, it meant he was not simply a totally unknowing mule.... The fact remains, however, that the only evidence in the record regarding Saenz’s participation in this conspiracy is that he did so on only one occasion. The district court’s reasoning suggests that it concluded otherwise, and that this conclusion was the premise for its denial of the minor participant adjustment....  Because the denial was apparently premised on information not supported by the record, we remand for reconsideration....

In doing so, we note again the length of the sentence Saenz received for transporting drug money on one occasion.  That sentence, again, was 293 months in prison.  And, to repeat, the government sought a higher sentence.  If the government’s position is that 293 months is barely good enough for a one-time courier, we wonder what it thinks the appropriate sentence would be for someone who is a large-scale supplier of drugs . And with sentences like this one for single-time couriers, why not be a major supplier?  If caught, the sentence is not likely to be much more, and one can certainly make a whole lot more money in the meantime.

October 13, 2010 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Costs of capital punishment getting the spotlight in Connecticut case

As detailed in this local article, which is headlined "Steven Hayes Defense Outlines High Cost Of Putting Someone To Death," the significant economic costs of capital punishment has moved from policy debate into a legal argument in one high-profile case.  Here are the interesting details:

Steven Hayes' defense attorneys, in a bid to spare his life, say they have evidence that counters "the popular assumption that the cost of executing someone saves the state money" compared with a life sentence.

They cite reports that offer these statistics:

  • In Tennessee, death sentences in murder cases cost 48 percent more than life sentences.
  • In Washington state, death penalty cases cost $470,000 more in defense and prosecution costs than non-capital murder cases.
  • In North Carolina, it costs $2.16 million per execution more than it costs for a non-capital defendant sentenced to life in prison.

These are among the reports that they are expected to put forth today in their fight to convince a Superior Court judge that he should let them use the unusual strategy of arguing economic reasons to keep the convicted triple murderer off death row. The defense claims that sparing Hayes' life will save the state and taxpayers "many millions of dollars."

In a legal memo filed Tuesday, the defense lawyers said recent polls show that support for the death penalty "drops off dramatically" when people learn of the cost difference between executions and housing a convicted killer for life.

The defense plans to call an expert who has written a report about what Connecticut spends on executions vs. life sentences.  Its memo says the testimony could be "for purpose of mitigation or as support" for Hayes' pretrial offers to plead guilty "or for re-butting the intuitive common understanding by the public, and therefore jurors that the imposition of the death penalty … is less expensive than life without the possibility of release."

Today's hearing is in preparation for next week's penalty phase, in which jurors will decide whether Steven Hayes, 47, of Winsted, lives or dies for the July 23, 2007, killings of Jennifer Hawke-Petit and her daughters, Hayley, 17, and Michaela, 11, during a break-in, robbery and arson at their Cheshire home.

New Haven Public Defender Thomas J. Ullmann and Patrick J. Culligan, head of the state Public Defender's Office capital defense unit, said they want to use the expert testimony to support Hayes' repeated offers to plead guilty to the slayings in exchange for a life sentence....

During the penalty phase, jurors will weigh mitigating factors against aggravating factors to determine if Hayes should be sentenced to death by lethal injection.  Recent court filings show that the aggravating factors the state intends to prove are that Hayes killed Hawke-Petit and her daughters during the commission of or immediate flight from the commission of a felony — third-degree burglary — and that Hayes committed the murders in "an especially heinous, cruel or depraved manner" and "knowingly created a grave risk of death to another person."  Testimony about the cost of life in prison vs. death could be a mitigating factor for jurors to consider.

Prosecutors plan to argue against use of the expert testimony on the cost issue.  In legal papers, New Haven State's Attorney Michael Dearington and Senior Assistant State's Attorney Gary W. Nicholson say "the evidence of costs of execution is irrelevant and not mitigation evidence and such cost-benefit analysis of the death penalty is a matter of public policy for the legislature."

Ullmann tried unsuccessfully to use a similar strategy in another capital case six years ago. In that case, Ullmann filed a motion asking a judge to force the state to accept a plea bargain that would guarantee life in prison instead of a seat on death row for Jonathan Mills.... To bolster his argument, Ullmann claimed that it would be more expensive to sentence Mills to death because a guilty plea would cut 10 to 15 years of legal wrangling and appeals that a death sentence would probably yield.

Judge Jon C. Blue, who is presiding over Hayes' trial, denied Ullmann's motion.  The jury voted against executing Mills and sent him to prison for the rest of his life.

October 13, 2010 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack

"The Standardless Second Amendment"

The title of this post is the title of this new Issue Brief authored by Tina Mehr and Adam Winkler coming from the American Constitution Society. At this link, here is how ACS describes the piece:

ACS is pleased to distribute “The Standardless Second Amendment,” by Tina Mehr, an Attorney Fellow at the Los Angeles County District Attorney’s Office, and Adam Winkler, a Professor of Law at the University of California Los Angeles.  In their issue brief, Ms. Mehr and Professor Winkler discuss the state of Second Amendment law following the Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. City of Chicago.  The authors observe that “[i]t is often said that there are 20,000 gun control laws in the United States,” and these two decisions, which “held that the Second Amendment guaranteed individuals a right to possess firearms for personal protection,” raise questions about the constitutionality of these laws.  Despite the Court’s two recent decisions, Ms. Mehr and Mr. Winkler argue that “Second Amendment doctrine is profoundly unsettled” and that “the Supreme Court failed to give [lower courts] adequate guidance on how to resolve gun control controversies.”  The authors discuss how courts have been resolving these disputes and the implications for future cases.  They conclude by contending that, “even in the absence of sufficient guidance about how to analyze Second Amendment controversies, the lower courts have consistently read Heller and McDonald to permit lawmakers wide latitude to protect public safety through gun laws.”

October 13, 2010 in Second Amendment issues | Permalink | Comments (6) | TrackBack

High-profile murders drive even higher broad support in Connecticut for the death penalty

Though all the standard political news and punditry would lead one to believe that most Americans cannot agree on anything, this local story from Connecticut provides another reminder that support for the death penalty often draws lots of support, especially in the wake of a high-profile murder.  The piece is headlined "Support for Conn. death penalty hits 10-year high," and here are excerpts:

Support for Connecticut's death penalty has reached its highest point in more than a decade, and even some who generally oppose capital punishment say it's appropriate for a man convicted in the 2007 deadly Cheshire home invasion, according to a new poll.

Quinnipiac University's poll, released Wednesday, found 65 percent of those surveyed support the death penalty.  That's up from 61 percent two years ago, and the highest number since the year 2000.

It comes as Steven Hayes faces sentencing this month after being convicted of murder, rape and other charges for his part in the 2007 deaths of Jennifer Hawke-Petit and her daughters, Hayley and Michaela.  Prosecutors are asking jurors to send him to death row.

Dr. William Petit, the lone survivor of the attack that killed his family and burned down his home, has been a vocal supporter of the death penalty.  He wants it imposed against Hayes and co-defendant Joshua Komisarjevsky, who awaits trial.  

The Quinnipiac poll results show many Connecticut voters share Petit's view about Hayes, whose attorney plans to ask jurors to impose life in prison without parole....  Three of every four people surveyed favored the death penalty for Hayes, with 18 percent against it and 6 percent undecided.  Men were slightly more likely to support it than women.

There are 10 inmates on death row in Connecticut.... The last person executed in Connecticut was serial killer Michael Ross in 2005.

The General Assembly approved a ban in 2009 on imposing the death penalty for future convictions — which would have included Hayes — but not retroactively for death row inmates, whose cases are in various stages of appeals.  Gov. M. Jodi Rell vetoed the ban, saying the state cannot tolerate people who commit particularly heinous murders.

Connecticut hanged inmates until 1937, when it started using the electric chair. It switched to lethal injection in 1995.  The last inmate executed before Ross in 2005 was Joseph "Mad Dog" Taborsky in 1960.  Taborsky was electrocuted for a string of robberies and killings that left six people dead over four weeks in late 1956 and early 1957.

Quinnipiac's new poll was taken over five days starting Oct. 7, two days after Hayes was convicted in New Haven Superior Court. The survey included 1,721 registered Connecticut voters and has a margin of error of 2.4 percentage points in either direction.

Though many academics view support for the death penalty to be contensious and controversial, these poll numbers suggest otherwise.  In particular, the fact that 75% of folks in Connecticut favor the death penalty for triple murderer Steven Hayes, while only 18% oppose the death penalty for him suggest that there is more consensus on this issue than just about another other high-profile political or legal issue that is often subject to policy debate. 

Indeed, I cannot think of any other comparable issue in which poll numbers are so strong in one direction, and I encourage readers (especially death penalty abolitionists) to spotlight in the comments whether they can cite to any comparable issue in which the views of the general public are so strong in one direction.

October 13, 2010 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (10) | TrackBack

New York country creates first animal abuser registry with penalties for failing to register

As detailed in this local article, headlined "Suffolk approves animal abuse registry bill," a prominent county in New York has pioneered a new kind of criminal registry. Here are the basics:

The Suffolk County Legislature unanimously approved a bill Tuesday to create a law establishing a county registry for animal abuse offenders, the first of its kind in the nation.

The new law allows the county to create a public registry of convicted animal abusers, in which the names, aliases, addresses and photographs of animal abusers would compiled in a searchable database, much like the state's sex offender registry.  The convicted abusers would pay a $50 annual fee for upkeep of the registry, and those who fail to register would be charged $1,000 or face jail time.

A public hearing for a second bill, which would require pet stores and animal shelters to check the registry before allowing anyone to purchase or adopt an animal, was tabled for a later date.  If approved, that law would prohibit pet stores from selling an animal to a convicted abuser.

Roy Gross, who heads the Suffolk County Society for the Prevention of Cruelty to Animals, said his group, which deals with over 2,000 animal abuse cases in the county per year, believes the animal abuse registry will help to save animals.  “Most serial killers began as animal abusers,” he said.  “It's a known fact: people who hurt animals hurt people too.”

October 13, 2010 in Criminal Sentences Alternatives, Offense Characteristics | Permalink | Comments (4) | TrackBack

"The Contradictions of Juvenile Crime & Punishment"

The title of this post is the title of a new piece by Jeff Fagan, which appears in the terrific recent issue of Daedalus concerning mass incarcertation and is available here via SSRN. Here is abstract:

This essay explores the contradictions and puzzles of modern juvenile justice, and illustrates the enduring power of the child-saving philosophy of the juvenile court in an era of punitiveness toward offenders both young and old.  The exponential growth in incarceration in the U.S. since the 1970s has been more restrained for juveniles than adults, even in the face of a youth violence epidemic that lasted for nearly a decade. Rhetoric has grown harsher in the wake of moral panics about youth crime, juvenile codes now express the language of retribution and incapacitation, yet the growth in incarceration of juveniles was attenuated and declined more responsively to declining crime rates.  Almost no states have lowered the age of majority, even in the face of wholesale removal of juveniles to the criminal court.  States have embraced the ideals and practice of small institutions, yet conditions in juvenile corrections often remain harsh and are common targets of litigation.  Racial disparity still pervades juvenile incarceration, despite Congressional support of a collaborative project to reduce racial inequalities in juvenile detention and corrections.  These conflicting trends portray an institutional and normative landscape that at once fears child criminals and seeks to punish them harshly, but at the same time pulls its punches as it adheres to the transcendent and enduring philosophy of child-saving.

October 13, 2010 in Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

October 12, 2010

"Legally Loaded: Marijuana Today -- Cocaine and Heroin Tomorrow?"

The title of this post is the headline of this notable commentary now appearing at the Huffington Post authored by Dr. Howard Samuels, a psychotherapist. Here are some interesting excerpts:

As a father of three children -- Cooper 9, Greer 6, and Chase 3 -- I'm faced with the dilemma of discussing with them how marijuana is as safe as aspirin when they turn 18 years old.  If Proposition 19 passes, the state of California is telling me that it's okay for my children to get loaded on drugs as often as once a week or every day and all day.

We are only a little over a month away from voting on whether to legalize pot for the so-called medical benefits and to relieve the government of enforcing marijuana laws.  That's what those in favor of decriminalizing marijuana would have you believe.  The real message is that we are normalizing the drug and alcohol crisis in a big way and sending a message to our children that marijuana is as safe to smoke as taking aspirin and brushing our teeth with toothpaste if it is made legal....

More than half of all fatal highway crashes involving two or more cars are alcohol related. 250,000 people have died in alcohol related accidents in the past 10 years with 2 million injured in alcohol-related driving collisions occurring each year.  And, let's not bury the headline: "Alcohol related crashes are the leading cause of death for young Americans!"

That's what ending prohibition did for us.  I am not against social drinking.  For those who are not alcoholics, a glass of wine with your pasta is alright by me, but don't tell me that you smoke pot for the taste. The only reason people smoke weed is to get loaded.  By legalizing we are perpetuating a drug-oriented culture.  We may as well add to "Drink responsibly ... and medicate as needed..."

We are sending the wrong message to our young people when we casually refer to marijuana as medicine.  I can tell you from my front row seat as a addiction treatment professional -- the prescribing of marijuana is not as much about people who need it for terminal-illness, medicinal-relief, but convenience on the part of our kids abusing weed.  I have clients at 16, 17, 18 and up who are buying pot from clinics as easily as using an ATM card to buy a pack of cigarettes at a gas station.

It's horrifying to me to watch our nation go up in a haze of herb smoke.  It's denial that our young people are free from the self-destruction brought on by the easy access which will come from making pot legal....

While a very minute segment of the population smokes a joint on the weekends a couple of times a month, the majority -- the real mainstream smokers are inhaling four or five times a week and several times a day.

Marijuana -- more often than not -- is a gateway drug and the danger is legalizing it will make it more acceptable, which invariably leads to trying other drugs.  Believe me, a pot high for an addict who is looking to numb themselves will eventually become blase and boring and the chase will be on for some other 'recreational' drugs.  Where does all this end?

As a treatment professional, I rely on the police and courts to help treat the addict/alcoholic through enforcement of laws which actually protect the abuser still in denial of their disease by forcing them to look at their issues with consequences.  Once the handcuffs are 'off' the pot smoker, we are in for major, major trouble with our kids....

If Americans accept marijuana as normal then we can expect even more crimes associated with other drugs such as cocaine, methamphetamine and heroin -- and we can also be assured of behavior issues and exorbitant increases in multiple addictions by our young people.  We must ask ourselves: Where do we draw the line legalizing narcotics?

All I can tell you is that as a father, I am concerned about Cooper, Greer and Chase.  Will turning 18 allow my children the legal right to not only buy marijuana, but cocaine and heroin as well?  As a nation, are we headed towards the next generation as a generation that is legally loaded?

I am seeing more and more of these kinds of "fear the refer" commentaries as we approach election day, and I suspect they will succeed in convincing the marginal voter in California to vote against Proposition 19 because of status quo biases and fear of the unknown. But that's just an arm-chair prediction three weeks out while perched in my ivory tower.

Some related posts on pot policy and politics:

October 12, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (20) | TrackBack

If you love debates over IAC and AEDPA standards...

you will want to make sure to check out the oral argument transcripts from the Supreme Court arguments that took place today in Harrington v. Richter (case background here; oral argument transcript here) and Premo v. Moore (case background here; oral argument transcript here).  Of course, if you have no idea what the acronyms IAC and AEDPA stand for, then you probably can and should find better things to do. 

Based on a super-quick scan, I think sentencing fans will find more of interesting in Premo v. Moore.  And I would be grateful to anyone using the comment to explain whether and why they think these cases could end up being very consequential.

October 12, 2010 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

New Sentencing Project report on reform of felony disenfranchisement laws

Via e-mail I received today a notice about this new report from The Sentencing Project, as well as this summary description of its contents:

Since 1997, 800,000 persons have regained the right to vote as a result of felony disenfranchisement reform in 23 states, according to Expanding the Vote: State Felony Disenfranchisement Reform 1997-2010.

The report has found that:

  • Nine states either repealed or amended lifetime disenfranchisement laws; 
  • Three states expanded voting rights to persons under community supervision (probation and parole); 
  • Eight states eased the restoration process for persons seeking to have their right to vote restored after completing sentence; and 
  • Three states improved data and information sharing.

State legislation and/or litigation efforts have impacted state disenfranchisement policies by way of amending current laws, easing restoration policies, and lifting bans on probationers or parolees.

Reforms highlighted in the report include:

  • Rhode Island's repeal of a state prohibition on voting for persons on probation and parole resulted in the restoration of voting rights to more than 15,000 individuals; 
  • Maryland's repeal of its lifetime prohibition on voting for persons who have completed their sentence resulted in the restoration of voting rights for more than 52,000 persons; 
  • Connecticut's repeal of its ban on voting for persons on probation extended the right to vote to more than 33,000 citizens; and 
  • New Mexico's repeal of its lifetime disenfranchisement provision restored the right to vote to more than 69,000 individuals.

October 12, 2010 in Criminal Sentences Alternatives, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1) | TrackBack

Three intriguing SCOTUS cert grants on criminal justice issues

As detailed in this SCOTUSblog post, this morning the Supreme Court "issued an order list from last week’s Conference that included grants of certiorari, denials of certiorari, and an invitation for the Acting Solicitor General to file a brief expressing the views of the United States." The full order list is available here.  Three of the cert grants involve interesting criminal justice issues, as this cut-and-paste job from SCOTUSblog highlights:

Bond v. United States (Granted); Docket: 09-1227

Issue(s): Whether a criminal defendant convicted under a federal statute has standing to challenge her conviction on grounds that, as applied to her, the statute is beyond the federal government’s enumerated powers and inconsistent with the Tenth Amendment....

The following two cases were consolidated by the Court:

Camreta v. Greene (Granted); Docket: 09-1454

Issue(s): (1) Whether the traditional warrant/warrant exception requirements that apply to seizures of suspected criminals should apply to an interview of the child in light of reports of child abuse, or whether instead a balancing standard should apply; and (2) whether the Ninth Circuit’s constitutional ruling is reviewable, notwithstanding that it ruled in the petitioner’s favor on qualified immunity grounds....

Alford v. Greene (Granted); Docket: 09-1478

Issue(s): Whether the Fourth Amendment requires a warrant, a court order, parental consent, or exigent circumstances before law enforcement and child welfare officials may conduct a temporary seizure and interview at a public school of a child whom they reasonably suspect was being sexually abused....

DePierre v. United States (Granted); Docket: 09-1533

Issue(s): Whether the term “cocaine base” encompasses every form of cocaine that is classified chemically as a base, or whether the term “cocaine base” is limited to “crack” cocaine.

The DePierre case looks like the most sentencing-focused of these cases, though the statutory issue to be considered is likely significant only in a small sample of cases. In contrast, the constitutional issues raised in these other cases make them both potential blockbusters.

UPDATE:  At Crime & Consequences, Kent Scheidegger provides more useful information about these cases and other aspects of the Supreme Count's work today in these posts:

October 12, 2010 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack