October 12, 2010
"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.
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 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.
"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.
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 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."
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.
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."
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.
Could (and should?) expanded good-time credits help reverse mass incarceration?
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!"