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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

"The Efficacy of Severe Child Pornography Sentencing: Empirical Validity or Political Rhetoric?"

The title of this post is the title of this new article by Melissa Hamilton that is forthcoming in the Stanford Law & Policy Review and is now available via SSRN. Here is the abstract:

The federal sentencing guidelines for child pornography offenses are the subject of current debate among the leading institutions responsible for sentencing.  During the last two decades, Congress has broadened the scope of child pornography laws and increased minimum and maximum statutory sentences.  Congress has also uniquely intruded upon the United States Sentencing Commission’s normal institutional role by forcing higher sentencing ranges recommended by the sentencing guidelines.  A divided federal judiciary has played another role in the debate.  While many judges are using their recently awarded discretion to reduce child pornography sentences, often far below guidelines ranges, another group of judges adhere to the harsher guidelines in sentencing.  The result of the foregoing has been significant disparities in sentencing, which undermine the foundational goals of proportionality and fairness.

As a result of a moral panic about sexual abuse involving children, severe sentencing proponents fundamentally appear to use child pornography offenses as a proxy to punishing undetected child molestation.  The theory underlying the proxy approach is that child pornography is a causative or correlative factor for contact sex offending against children. This paper addresses the debate with various analyses.  It reviews Congress’ ongoing interventions into child pornography sentencing and summarizes recent developments in the trend toward rising guidelines ranges.  Disparities in final sentences are observed in a comprehensive review of case law showing the division of opinion in the federal judiciary and deriving judicial rationales for either downward variances from or adhering to the strict child pornography guidelines ranges.  The efficacy of the proxy approach is challenged through a substantive review of the empirical evidence concerning any nexus between child pornography and child sexual abuse.  Overall, the studies fail to support any causative connection and generally find a relative few studies that show weak support for any direct correlation.  Rather, the evidence generally indicates that child pornography offenders and child molesters are not synonymous groupings.  This paper illustrates that sentencing policy would be better served if the interested parties rationally assessed the social science evidence indicating that most child pornography offenders fail to pose a substantial risk of contact offending against children and, thereby, substantively reconfigure the sentencing guidelines accordingly.

October 12, 2010 in Federal Sentencing Guidelines, Scope of Imprisonment, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

NY Times op-ed spotlights extreme jury sentences in Mississippi

Today's New York Times includes this remarkable op-ed by Bob Herbert concerning a pair of extreme sentences in Mississippi.  The piece is headlined "So Utterly Inhumane, and here are excerpts:

You have to believe that somebody really had it in for the Scott sisters, Jamie and Gladys.  They have always insisted that they had nothing to do with a robbery that occurred near the small town of Forest, Miss., on Christmas Eve in 1993.  It was not the kind of crime to cause a stir.  No one was hurt and perhaps $11 was taken.

Jamie was 21 at the time and Gladys just 19.  But what has happened to them takes your breath away.  They were convicted by a jury and handed the most draconian sentences imaginable — short of the death penalty. Each was sentenced to two consecutive life terms in state prison, and they have been imprisoned ever since.  Jamie is now 38 and seriously ill. Both of her kidneys have failed.  Gladys is 36....

The authorities did not even argue that the Scott sisters had committed the robbery.  They were accused of luring two men into a trap, in which the men had their wallets taken by acquaintances of the sisters, one of whom had a shotgun.

It was a serious crime.  But the case against the sisters was extremely shaky.  In any event, even if they were guilty, the punishment is so wildly out of proportion to the offense that it should not be allowed to stand.

Three teenagers pleaded guilty to robbing the men.  They ranged in age from 14 to 18.  And in their initial statements to investigators, they did not implicate the Scott sisters.  But a plea deal was arranged in which the teens were required to swear that the women were involved, and two of the teens were obliged, as part of the deal, to testify against the sisters in court....  The teens were sentenced to eight years in prison each, and they were released after serving just two years.

This is a case that should be repugnant to anyone with the slightest interest in justice.  The right thing to do at this point is to get the sisters out of prison as quickly as possible and ensure that Jamie gets proper medical treatment.

A number of people have taken up the sisters’ cause, including Ben Jealous, the president of the N.A.A.C.P., who is trying to help secure a pardon from Gov. Haley Barbour of Mississippi.  “It makes you sick to think that this sort of thing can happen,” he said.  “That these women should be kept in prison until they die — well, that’s just so utterly inhumane.”

I have no idea why the authorities were so dead set on implicating the Scott sisters in the crime and sending them away for life, while letting the teens who unquestionably committed the robbery get off with much lighter sentences.

Life sentences for robbery can only be imposed by juries in Mississippi, but it is extremely rare for that sentencing option to even be included in the instructions given to jurors.  It’s fair to think, in other words, that there would have to be some extraordinary reason for prosecutors and the court to offer such a draconian possibility to a jury....

The reason for giving the jury the option of imposing life sentences in this case escapes me.  Even the original prosecutor, Ken Turner, who is now retired and who believes the sisters were guilty, has said that he thinks it would be “appropriate” to offer them relief from their extreme sentences.  He told The Clarion-Ledger in Jackson, Miss., “It was not a particularly egregious case.”

The appeals process for the women has long since been exhausted. It is up to Governor Barbour, who is considering petitions on the sisters’ behalf, to do the humane thing.  A pardon or commutation of sentence — some form of relief that would release Jamie and Gladys Scott from the hideous shackles of a lifetime in prison — is not just desirable, it’s absolutely essential.

October 12, 2010 in Clemency and Pardons, Examples of "over-punishment", Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11) | TrackBack

October 11, 2010

"With more prisoners and no place to put them, Kansas faces hard choices"

The title of this post is the headline of this lengthy article from the Kansas City Star.   Here is how it starts:

A few years ago, Kansas had figured out how to control its prison population. It had solved the equation and become a national model.  No more.  Kansas is officially out of beds for male prisoners, with a population last week of 8,411 — above the system’s capacity of 8,259.

In 10 years, the state is projected to be nearly 2,000 beds short.  So Kansas corrections leaders have started talking seriously about two options: Either find millions of dollars to house more prisoners — at a time when the state is struggling to pay for schools and social services — or start letting them go.

Another option — crowding prisoners — would just lead to violence and lawsuits, prison officials say. Many states, including Mississippi, have already retreated from years of tough crime laws. Kansas experts are looking at the Mississippi solution of making nonviolent offenders eligible for parole after they have served 25 percent of their sentences.

Another possibility suggested by the Kansas Sentencing Commission is to increase “good time” credit for some inmates from 15 or 20 percent to up to 50 percent, meaning prisoners who stay out of trouble could be released after serving half of their sentences.

But early releases in either form would violate promises the state made to those who have suffered at the hands of criminals, said Wyandotte County District Attorney Jerome Gorman. “I don’t know how we can do that to the victims of the state of Kansas,” he said.  Even nonviolent inmates such as drug addicts and burglars are mostly chronic criminals who will get out and cause trouble, he said, and the state is already failing to revoke parolees who should be put back in prison. “They entrusted a job to police, prosecutors and judges and now they’re saying we don’t care about the effort,” Gorman said.

Wyandotte County District Court Judge Ernest L. Johnson, chairman of the Sentencing Commission, agreed that early releases would be a step back from the state’s sentencing grid system meant to impose consistent and true prison time. “But what do you do when there isn’t enough money? You’ve got to change something,” he said.

October 11, 2010 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (5) | TrackBack

"Thinking About White-Collar Crime and Punishment"

The title of this post is the title of an effective short piece from Professor Bruce Green, which is in the latest issue of the ABA publication Criminal Justice and can be found here via SSRN. Here is the abstract:

This article reviews white-collar crime questions now under review by the ABA Criminal Justice Section (“CJS”), especially the question of federal sentencing for economic crimes where there is a large loss to victims but little gain to the defendant.  This question, which will be a focus of the CJS’s November 5, 2010 conference, has troubled the Department of Justice, which in such cases opposes downward departures from the Federal Sentencing Guidelines ranges and may advocate for reform of the Guidelines or mandatory minimum sentences to reduce sentencing disparities.  This article suggests, as an alternative, that the U.S. Sentencing Commission collect judicial reasoning in exemplary sentencing decisions in order to promote the development of the common law of sentencing. The article invites comment on this and other issues under study by the CJS.

October 11, 2010 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2) | TrackBack

New blog examining the "intersection between criminal law and emerging technology"

I am pleased to learn about this new blog, intriguingly named "Stockycat," which is "focused non-exclusively on the intersection between criminal law and emerging technology" and says it is "[d]edicated to the idea that effective law enforcement is not incompatible with a vigorous interpretation of the Fourth Amendment."

Among the many notable features of this new blog that makes it worth watching is the public policy AND government lawyer AND prosecutorial background of its author, Joshua Engel.  Here is how the author describes his background on this blog:

I am a Fellow with the Ohio State Bar Foundation. In addition, I have been honored as a recipient of a Harry S Truman Scholarship for Public Service.  I recently served as Chief Legal Counsel for the Ohio Department of Public Safety.

Prior to joining the Department of Public Safety, I was one of the most respected and successful felony prosecutors in Ohio.  In 2007, my work as a prosecutor was recognized by a Meritorious Service Award from the Ohio Prosecuting Attorneys Association.

I began my career as a prosecutor by serving under current Massachusetts Attorney General Martha Coakley in Middlesex County, Massachusetts.  I started my legal career at Choate, Hall & Stewart, a large Boston law firm. 

Though the blog seems focused at the start on Fourth Amendment issues, I am hopeful that we will before long see posts about GPS tracking of released offenders and/or internet restrictions as a form of punishment and/or restitution as a punishment simply for downloading child porn and/or any of the many other sentencing law and policy issues that arise at the "intersection between criminal law and emerging technology."

October 11, 2010 in On blogging, Technocorrections, Who Sentences? | Permalink | Comments (6) | TrackBack

October 10, 2010

Assailing too-broad internet bans as part of a sentence

The National Law Journal has this notable new commentary headlined "Banned from the Internet: Prohibiting a defendant on probation from conducting any business online is overly restrictive and not reasonably related to legitimate sentencing goals."  The piece is authored by A. Jeff Ifrah and Steven Eichorn, and here are excerpts:

Given the pervasiveness of the Internet, it is curious to us that some courts have been all too willing to prohibit Internet use for defendants on probation or supervised release. Are such Internet bans narrowly tailored to affect "only such deprivations of liberty or property as are reasonably necessary," a statutory factor in the conditions of release issued by a judge? Recent cases suggest the answer is no.

Internet bans are most commonly issued by courts as a condition of probation in child pornography cases in which the defendants may have utilized the Internet as a tool to lure their victims.  But even when the courts have permitted Internet bans in such cases, they have often noted the harshness of a complete ban and have listed numerous factors to consider before imposing a ban, such as whether it "is narrowly tailored to impose no greater restriction than necessary," the "availability of filtering software that could allow [the defendant's] Internet activity to be monitored and/or restricted" and the duration of the ban....

Given the limitations imposed in child-pornography cases, the growing number of Internet bans in white-collar cases raises our eyebrows.  Is an Internet ban appropriate for a defendant who used the Internet to perpetrate a fraud like a telemarketing scheme or investment fraud?...

Clearly, courts would not apply a complete ban on conducting business for a defendant who operated many fraudulent brick-and-mortar companies with separate storefronts.  Courts readily understand that banning a defendant from conducting any further business is not reasonably related to legitimate sentencing goals and is much more restrictive than necessary. So why are courts willing to place a complete ban on Internet business for defendants who use the Internet to conduct their business and bar them from "the town square for the global village of tomorrow?" And why are courts handing down more restrictive Internet bans in white-collar cases than those handed out in Internet child pornography cases?

The answer may be related to some judges' lack of appreciation of the importance of the Internet in today's society.  We hope that, as online commerce becomes universally perceived as being as routine as business conducted in a brick-and-mortar store, courts will be careful to ensure that this critical form of communication with customers is not restricted in the absence of compelling circumstances.  Anything less would clearly constitute "deprivations of liberty or property" that are far from "reasonably necessary."

October 10, 2010 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Technocorrections, White-collar sentencing | Permalink | Comments (1) | TrackBack

Pardoning news and notes from the rust belt

With some state Governors already or possibly soon to be in lame-duck-mode and with the winter holidays on the near horizon, the season for clemency and pardon requests and grants is heating up.  This past week brought these notable pardoning stories from the great states of Ohio and Wisconsin.

From Ohio, the story is headlined "Pardon requests to governor keep on coming: As his term nears an end, Strickland asked to consider clemency for nearly 950," and here are excerpts:

Nearing the end of his four-year term as governor, Ted Strickland is being flooded with requests to use his executive clemency power.  This year alone, Strickland's office has received 488 clemency requests -- and the number is increasing daily. Add in pending requests from 2008 and 2009, and the governor has nearly 950 cases awaiting decisions only he can make.

There is often a rush of clemency requests near the end of a governor's time in office. Relying on the track record of past governors, applicants hope that an outgoing governor -- or one entering a new term -- will be more lenient than someone just starting out in office....

Strickland has used his broad clemency power under Ohio law to spare the lives of three condemned killers (while letting 17 others die).  However, he has been slower in handling clemency requests for less serious criminal cases.

Last year, the governor released 296 clemency decisions, approving 78, or 26.3% of them. The vast majority of those approved were pardons for minor, nonviolent offenses, although he did order the release of a prisoner from Toledo who had been wrongly convicted of murder.  All of the cases were from 2005-07, including some he inherited from his predecessor, Gov. Bob Taft.

In addition to the 488 applications from this year, Strickland has a backlog of 283 cases from 2009 and 176 from 2008, spokeswoman Amanda Wurst said.  "The governor will spend as much time as necessary to thoroughly review and consider clemency requests before taking action," she said.  Strickland said he and his staff spent more than 1,000 hours going over the last batch of cases.

From Wisconsin, the story is headlined "Wis. gov's pardons top predecessors," and here are excerpts:

Democratic Gov. Jim Doyle has issued criminal pardons at a torrid pace since he announced he would not seek re-election, granting more in 12 months than former Gov. Tommy Thompson did in seven years, records show.

Doyle has granted 85 pardons between Aug. 17, 2009, when he announced he would not seek re-election, and early August of this year, according to records obtained by The Associated Press under the state open records law.  That amounts to a little more than a third of the 214 pardons Doyle has issued since he took office in 2003.

Thompson, a Republican, granted 62 pardons from 1994 through 1999. Records showed he granted no pardons in 2000, his last full year in office.  His successor, Republican Scott McCallum, issued two dozen pardons from 2001 through 2002.

Doyle's pardons during the last year mostly have involved low-profile ex-convicts who committed crimes years ago.  Still, Republicans accused him of using his pardon power irresponsibly.  Taken with Doyle's early release prison project, the number of pardons shows the governor has gone soft on crime, said Rep. Scott Suder, R-Abbotsford, former chairman of the Assembly's Criminal Justice and Homeland Security Committee.

"He is clearing their record.  He is giving them a blank slate," Suder said. "It should be a rarity to grant pardons.  Jim Doyle is just handing pardons out like they were candy."

Doyle spokesman Adam Collins said the number of pardon applications being submitted has grown dramatically.  Doyle's office had received nearly 600 pardon requests from the beginning of the year through Oct. 4, double the number of applications during the first nine months of last year and three times as many as during the first nine months of 2008.

He stressed Doyle has not commuted any criminal's sentence since he took office. "A pardon does not shorten someone's sentence or erase what's going on," Collins said. "These are incidents that happened years and years ago when people were young. Governor Doyle is a longtime prosecutor.  He's always been very judicious with pardons."

The Wisconsin Constitution grants the governor the power to pardon anyone convicted of a felony in Wisconsin.  A pardon restores an ex-convict's lost rights, such as the ability to possess firearms, hold public office and hold various licenses such as alcohol and tobacco licenses.  It doesn't overturn a conviction or expunge, erase or seal a person's case.

However, the public record reflects the pardon, making the ex-convict a more appealing hire and restoring the right to hunt with a gun, a precious right in Wisconsin where hunting traditions run deep.

Generally, applicants make their case to the state Pardon Advisory Board, which consists of gubernatorial appointees.  The board weighs factors including severity of the offense, time that has passed since it occurred, prosecutors' opinions and the applicant's history, before voting on whether to recommend a pardon.  The governor makes the final decision....

The 85 applicants granted pardons since Aug. 17, 2009, appear to be mostly small-time criminals.  They include former burglars, drug users and drug dealers. One pardon went to a man convicted of sexually assaulting a child in 1995.  The charges resulted from a boyfriend-girlfriend relationship when they were both in their teens.  The girl's mother submitted a letter to the pardons board supporting clemency.  The oldest crime was committed in 1958; the most recent was committed in 2001.

October 10, 2010 in Clemency and Pardons, Who Sentences? | Permalink | Comments (1) | TrackBack

Notable report on how one Florida case is dealing with the "uncharted territory" after Graham

I just came across this interesting article from a local Florida paper, which is headlined "Supreme court ruling gives life-sentence prisoner hope: Man convicted of rape when he was 16 hopes to reduce prison time now that life sentences for minors who didn't kill is unconstitutional." Here are excerpts:

Jason Kalapp ... is to serve five life sentences without the possibility of parole for the rape and attempted murder of his 24-year-old female neighbor in 1997. Kalapp, who was 16 at the time, allegedly forced his way into the young woman's home, beat her with a metal bar and raped her twice in her bathroom.

But a recent U.S. Supreme Court ruling has given Kalapp a newfound hope that he will someday see the world outside of a Florida correctional facility.... In May, the U.S. Supreme Court ruled 6-3 in Graham v. Florida that it was unconstitutional to give life sentences to juveniles who haven't killed. The justices ruled juvenile offenders must be given "some meaningful opportunity" for release.

Senior Circuit Court Judge Maurice Giunta decided Tuesday that the proceedings should be pushed back six months, giving prosecutors and Kalapp's public defender, Norma Wendt, time to prepare for a case that State Attorney R.J. Larizza said is "uncharted territory."

"I'm not sure how it's going to play out yet," said Wendt, division chief of the St. Johns County Public Defender's Office. "It's important to be cautious in this unique case, and I understand why the judge was careful about rescheduling the resentencing."...

The six months' time will give the Florida Office of Executive Clemency and representatives in the Florida Legislature time to respond and give the court a better idea of how to proceed, Giunta said. "The decision or petition from the Office of Executive Clemency may allow the possibility of parole, but that doesn't mean he'll get it," Larizza said. "The Legislature may also help fashion some way on how to proceed."

Kalapp is one of 77 former juveniles in Florida and 129 in the nation who are up for resentencings under the new ruling. "The bulk of these cases are in our state," Wendt said. "We have a bad habit of giving out life sentences in Florida. "It's important that we're consistent with the rest of the state in this thing, and we don't have different rulings in different counties."...

"The person that did that terrible thing is not the person that I know," said Amy, who asked that her last name not be printed, Kalapp's fiancee of more than a year. "He's not that person anymore, and he deserves a life outside of prison."

Amy, who visits Kalapp at least once a week from her home in South Florida, said she feels the court systems are lost on what to do. The couple met when Amy began writing to Kalapp as a pen pal nearly two years ago. "I just cannot understand this sentence," she said. "I've seen murderers get less of sentence than what he's got."

October 10, 2010 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Today is "World Day Against the Death Penalty" and it is dedicated to US this year

USA, USA, USA!!  Though American golfers were unable to beat the Europeans to bring home the Ryder Cup this year, I suppose some may want to take some (perverse?) pride in the fact that the abolitionist community in Europe are "honoring" the US today by dedicating this year's "World Day Against the Death Penalty" to us.  This page from the folks at the World Coalition Against the Death Penalty explains the "honor" and its point:

On 10 October 2010, the 8th World Day Against the Death Penalty is dedicated to the USA which executed 52 people and handed down 106 death sentences in 2009.

The USA is one of the few federalist countries which give the states the power to legislate on the issue of the death penalty.  At present there are 15 abolitionist states and 35 retentionist states in the USA, although among retentionist states, 10 have not carried out any executions for at least 10 years.

In recent years, abolitionist measures have be spreading throughout the nation, which is clearly divided on the issue.  According to Amnesty International, death sentences in the USA reached a high in 1994 but have dropped over 60 percent in the past decade.  In 2009, New Mexico became the 15th state to legislatively abolish the death penalty.

It is hoped that this world day will strengthen the trend towards abolition in the USA and also the trend towards universal abolition.  It is an opportunity to publicly oppose the use of this inhuman, cruel and degrading punishment and to support those in the USA who are fighting for its abolition.

Notably, as of this writing, there have already been 41 executions in the US in 2010, with nearly a dozen more serious execution dates scheduled before the end of the year.  Consequently, it seems nearly certain that the first two years in which Barack Obama was president will each have had more US executions than either of the final two years of George W. Bush's presidency.  That factiod ought to make for a good trivia question for both death penalty proponents and opponents alike.

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

Could (and should?) expanded good-time credits help reverse mass incarceration?

Good times The question in the title of this post is inspired by this effective local article from Washington state, which is headlined "Will the State Bring Back Half-Off Sentences for Good Behavior?".  The piece highlights that in most states it is budget woes, rather than concerns about mass incarceration, that is helping to generate a policy debate concerning how much of a sentence reduction a prisoner should be able to earn for good behavior while behind bars.  Here are excerpts:

A revival of the 50-percent-off provision for well-behaved inmates in the prison system is likely in January as the state’s budget situation grows increasingly dire.  Rep. Sherry Appleton, D-Poulsbo, said she has “no doubt” that lawmakers will discuss the provision, which allows inmates serving time for non-violent offenses half off their sentence for good behavior.

A law for 50 percent off was enacted in 2003 but expired on July 1.  The vast majority of inmates in prison receive their earned release time, currently up to a third off, according to DOC officials.

Awarding time off for good behavior can be seen as a benefit to the taxpayer.  Inmates who get out early for good behavior don’t take up costly prison space, said Mary Fan, a criminal law professor at the University of Washington School of Law.  So, what began as a tool to keep inmates behaving has become a mechanism to relieve budgets in a time when the state is perennially strapped for cash.

Fan agreed that lawmakers who wish to appear tough on crime can, say, bolster sentences for a variety of offenses, while more discreetly saving money by expanding good time. “If, on the back end, you quietly open the door wider, it’s less controversial,” Fan said.

Kitsap County Prosecutor Russ Hauge believes good time can control behavior and provide incentives for inmates to stay in line while behind bars.  But 50 percent off is simply too much, he said. “That’s just for cost savings,” said Hauge, also a member of the state’s sentencing guidelines commission, which advises Gov. Chris Gregoire on criminal justice policy issues.

State appellate court decisions have also altered the idea of earned release time, Hauge said. “They’ve turned good time from a privilege one earns through good behavior to a right they’re entitled to,” Hauge said.

The state’s prisons currently hold more than 16,000 people. Each inmate costs $100 per day, making prisons a target for cuts.  Appleton, a member of the House public safety and emergency preparedness committee, said if re-elected, she would support the half-off provision. In her mind, the alternative is letting more inmates in state prisons out to lower costs, so it would be better to reward non-violent offenders and keep all others incarcerated. “I think that could save a lot of money,” she said.

State Sen. Tim Sheldon, D-Potlach, said he cannot support the concept of 50-percent off a sentence. He said the state’s residents have an expectation of “clear and definitive” sentences by a judge.  “I think the public likes truth in sentencing,” said Sheldon, also a Mason County commissioner.  “I think you ought to behave yourself anyway and be penalized for not behaving.”

Perhaps the only offenders who should get expanded good-time credits are those who can sing the great theme song to the classic 1970s sit-com, which ends with the fitting lines "Good Times ... Ain't we lucky we got 'em ... Good Times!"

October 10, 2010 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2) | TrackBack