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November 13, 2010

"An unusual sentence aims to make a killer remember his victim"

The title of this post is the headline of this interesting and moving article from the St. Petersburg Times.  Here are excerpts:

The call came at 8 p.m.  A 19-year-old driving a Honda Civic had lost control and gone off the road.  He over-corrected, the state trooper said, and smashed into Thomas [Tower] Jr.'s car.  The impact ejected Thomas Jr., who fell into a field.

"By the time we got there, he was gone," [his father] said.  Thomas Jr. was 28.  The other driver, Andrew Gaudioso, was airlifted to a hospital where he spent four months in a coma.  "We waited," Towers said.  "But that kid was never charged."

Six months later, after Gaudioso was released from the hospital, Towers drove to the highway patrol station and demanded to see the wreck report. Gaudioso hadn't been drinking, the report said.  But a blood test showed drugs in his system.

In an interview, prosecutor Sara Jane Olson wouldn't say what the drugs were, but Towers said he was told one was marijuana.  "This kid got high and drove and killed my son," Towers said.  "My son, who protected our freedom and fought for our country, died a mile from my home."

In April 2009, officers charged Gaudioso with vehicular homicide.  His trial was supposed to start this month.  But his lawyer, Laura Hargrove, asked to have the case dismissed. "There was a huge problem with the way they calculated his speed," she said.

Prosecutor Olson could have asked for an 8-year prison sentence for Gaudioso, but that wasn't what Towers wanted.  "I didn't want him sitting there in the air-conditioning, watching TV on the taxpayers' dollars.  And I sure didn't want to risk him going free."

He wanted to hear Gaudioso say he was sorry for all the pain he had caused. "I want him to apologize to my family — every week," Towers remembers telling the assistant state attorney. "I want him to remember, for the rest of his life, that he killed my son."

Gaudioso did not respond to interview requests for this story, but his lawyer said he was happy with the plea agreement.  "He didn't want to go to prison."  The defense attorney proposed postcards instead.  One a week, for 15 years.  That's 780 postcards.

"The only way I could keep my client out of prison was to come up with something creative," Hargrove said.  "We didn't mandate what he had to say.  Only that he has to send the postcards."

On Oct. 14, Lake County Circuit Judge G. Richard Singeltary signed off on the unusual plea agreement. He sentenced Gaudioso, 22, to 15 years of drug offender probation, during which he can't drink or use drugs.  He also revoked his driver's license for five years and ordered him to pay $815 in fines.

And Gaudioso has to "mail a postcard to the victim's family via probation every week while on probation."  If Gaudioso doesn't send one, he will serve the rest of his 15 years behind bars.

Radio stations and wire services across the country carried news of the sentence. Internet users discussed it on blogs from "simplejustice" to "Harrypottering."  Everyone seemed surprised the victim's family would agree to let his killer go free.  To Towers, the best punishment is to make the killer pay penance. "I need to know that he cares that he killed my kid."

November 13, 2010 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

November 12, 2010

Law enforcement panel urging repeal of sex offender residency restrictions in California

As detailed in this interesting AP article, a "law enforcement panel is recommending that California voters repeal the residency restrictions for sex offenders they approved four years ago because too many are listed as transient, making them more difficult to monitor." Here's more:

Jessica's Law, passed by 70 percent of California voters in 2006, prohibits released sex offenders from living within 2,000 feet of a school or park.  The residency restriction means there are few places the offenders can legally live in many communities.  That forces many of them to move frequently, making it difficult for agents to track their whereabouts.

The 17-page report says 2,100 offenders have become transient since voters approved the law.  More than a third of paroled offenders are now transient, a 750 percent increase since the law took effect.  "Homeless sex offenders put the public at risk.  These offenders are unstable and more difficult to supervise," the draft says.

The report, obtained by The Associated Press, was being prepared for review by the governor's office before its official release, corrections department spokeswoman Terry Thornton said Thursday.  It says sex offenders move frequently and have more trouble finding and keeping jobs.

The panel says some residency restrictions should remain for high-risk child molesters, and parole agents should have discretion to restrict where others can live. The report does not recommend repealing other sections of Jessica's Law, such as requiring that sex offenders' movements be tracked with GPS-linked ankle bracelets or increasing penalties for some sex crimes....

Corrections Secretary Matthew Cate created the task force this year in response to high-profile crimes committed by paroled sex offenders, including the rapes and murders of two San Diego County teenagers and a kidnapping in Northern California. The 43-member task force includes parole officials, local law enforcement, victims' representatives and treatment providers.

State Sen. George Runner, R-Lancaster, who co-authored Jessica's Law, said the experts should have tried to improve a law that had overwhelming voter support.... "A practical solution is not going to back to voters and letting child molesters live across the street from schools. That's just not going to happen," Runner said. "Maybe the 2,000 feet doesn't work in all communities, but in most communities it surely does."

He also disputed that transient sex offenders are more dangerous than others, given that Jessica's Law also requires that their every movement be tracked by GPS.

In many cases, parole agents are being overwhelmed by the data generated by the GPS devices. The panel recommended the corrections department create a monitoring center to evaluate the thousands of daily warnings triggered by the GPS ankle bracelets worn by 6,600 paroled sex offenders....

The panel also recommended the department use new statistical tests to better predict which ex-convicts are most likely to commit new crimes and concentrate its supervision on those offenders, the report said.

Some related recent posts:

November 12, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Sarah Palin hacker get a federal year-and-a-day sentence

As detailed in this CBS News report, "David Kernell, the 22-year-old man who hacked into Sarah Palin's e-mail during the 2008 presidential campaign, was sentenced Friday to a year and a day, with the judge recommending a halfway house instead of prison."  Here is more of the details:

Kernell hugged family members and friends after hearing the sentence. He declined comment as they left the courthouse with his attorney....

The Republican former vice presidential candidate and her daughter Bristol testified at the trial in late April that the hacking, followed by Kernell's online bragging and providing the password and Palin family telephone numbers to others, caused them emotional hardship. Palin previously declined comment about Kernell's sentence and said it should be up to the judge. 

The prosecutors' pre-sentence filings said Kernell, a Democratic legislator's son, had posted online that he found "nothing that would derail her campaign as I had hoped, all I saw was personal stuff, some clerical stuff from when she was governor ... And pictures of her family ... I read everything, every little Blackberry confirmation ... all the pictures, and there was nothing..."

U.S. District Judge Thomas W. Phillips rejected a recommendation by prosecutors that Kernell be sent to prison for 18 months.

Kernell will not start the sentence until the Bureau of Prisons decides the location of his confinement, probably in about 45 days. "They usually take the recommendation but they are not required to," the judge said.

Kernell, smiling at times after the sentence was announced, spoke during the hearing and apologized. "I am not going to make any kind of excuses," he said.  "I'd like to apologize to the Palin family."  Kernell said that "for the rest of my life I am going to be ashamed, feel guilty for what I have done."

The judge also said Kernell should get mental health treatment based on defense comments Friday that he has had conditions including depression since he was 11.

Kernell was convicted of unauthorized access to a protected computer and destroying records to impede a federal investigation. Jurors acquitted him of wire fraud and deadlocked on an identity theft charge.

November 12, 2010 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (3) | TrackBack

"Pardon people, too, Mr. President"

The title of this post is a fitting headline for this potent op-ed by Margaret Colgate Love in today's Washington Post.  It is styled as an open letter to President Obama, and here are excerpts:

Dear Mr. President,

Media reports suggest that you will soon be engaging again in the ritual pardoning of a turkey.... If past is prologue, a substantial chunk of the news cycle, and your staff's time, will be devoted to this event.

Presidential turkey-pardoning is of relatively recent provenance.  Until 1989, presidents were more inclined to make a meal of the annual gift from the National Turkey Federation and the Poultry and Egg National Board.  President George H.W. Bush inaugurated the practice of "pardoning" the turkey, and the tradition has been institutionalized along with the Annual Easter Egg Roll.

It is not clear what message the public is supposed to take away from this bit of holiday theater: It could have a spiritual dimension, recalling the sacrifice of grateful, hungry pilgrims; or it could suggest the imperial "thumbs up" that spared a vanquished gladiator. Perhaps the whole production is intended as a joke.  What seems clear is that jet-age turkey-pardoning is preferred over the more venerable practice of pardoning human beings.

Mr. President, you have been in office almost two years now, and you have yet to pardon anyone.  It may be that your advisers have cautioned that extending clemency to humans is politically risky, and discouraged you from acting favorably on any of the hundreds of pending applications that await your consideration.  But this advice is at best shortsighted.  Presidents Bill Clinton and George W. Bush both waited too long to use their pardon power.  In his new memoir, Bush describes the "frustration" and "disgust" he felt in his final days in office as well-connected insiders seeking pardons beat a path directly to his door.  Bush seems oblivious to the fact that it was precisely his hands-off approach to pardoning throughout his tenure that led to the "last-minute frenzy" and "massive injustice" he decries, just as Clinton's neglect of his power had led to similar chaos and unfairness eight years before.

Pardoning people should not be that hard.  In fact, it should be one of the happiest of your official duties.  It requires no permission or negotiation with the other branches of government.  It allows you to put your personal stamp on the justice system and to speak directly to the American people about it.  Judicious pardoning has been an important legacy of some of our greatest presidents....

The federal prison population of roughly 200,000 includes many who have served decades for nonviolent drug offenses and others who deserve a second look to determine whether midcourse correction would be appropriate. Thousands of ordinary people living productive and law-abiding lives in this country are disqualified from opportunities and benefits because of a conviction record that may be decades old. These are people who have earned the second chance that a pardon represents. Your own attorney general has criticized these proliferating collateral consequences as a "recipe for high recidivism."

Mr. President, to date your only pardon was to a 45-pound tom named Courage. We were told that the name was chosen to honor the men and women in our military. It had a broader symbolism for those of us who wondered where along the way presidents had lost the resolve to use this most beneficent and personal of their constitutional powers. Come to think of it, it seems to have been lost about the same time they started pardoning turkeys.

It would indeed be welcome if this year you used the Thanksgiving ceremony to reconnect us with the tradition of pardoning that the Founders considered essential to a just system.

Relatedly, P.S. Ruckman over at Pardon Power is doing his usual great job documenting President Obama's clemency stinginess via these two recent posts:

The second of these potent posts at Pardon Power starts and ends this way:

In just a few days, President Obama will pass Bill Clinton as the slowest Democratic president in history to grant a pardon or commutation of sentence. If history is a guide of any value, he will grant a handful of pardons sometime a couple of weeks into December....

[W]hile some may be encouraged by the morsels of mercy that President Obama distributes while Santa Claus is in the neighborhood, let us be the first to complain. Shame on you, Mr. President.  To date, your clemency policy certainly deserves nothing but contempt and scorn.

Regular readers know that I, too, have been harping on this topic since Inauguration Day in 2009 (see posts from late January 2009 here and here and here and here).  Candidly, I am not especially surprised, though I am deeply disappointed, that President Obama has been a profile in cowardice on the clemency front.  The modern philosophy inside the Beltway seems to always be to prioritize politics over principles, and it is dangerously easy in the clemency setting to conclude that all grants make for bad politics.

And yet, I genuinely President Obama's shameful clemency record has been very bad politics.  With a few strategic and justifiable clemency grants, President Obama might have motivated his most liberal and libertarian supporters while perhaps even impressing his most aggressive critics.  For example, a pardon to a veteran with a minor felony who is still disenfranchised could show the President's commitment to having everyone have their right to vote restored.  A pardon to an elderly ex-con to enable him to go hunting again could show the President's commitment to Second Amendment rights.  A commutation for a low-level crack offender like Percy Dillon, along with a statement about his commitment to equal justice and the fiscal savings from having him get back to being a federal taxpayer rather than a federal tax burden, could highlight that securing individualized and equal justice can also be economically wise.  And so on.

But, instead of bringing the hope and change that President Obama promised on the campaign trail, in the clemency area we get the same old, same old.  This reality will not stop me and Margaret Colgate Love and P.S. Ruckman from continuing to urge the President to shape up in this regard.  But it also provides a strong reason why some of us hoping for a true courageous and principled leader in this arena will not be too troubled if this President before long gets shipped out.

Some older and newer related posts:

November 12, 2010 in Clemency and Pardons, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (25) | TrackBack

District judge calls federal prosecutors sentencing memorandum "mean-spirited"

This interesting piece in the DealBook section of the New York Times reports on a federal district judge expressing significant disconcert with the aggressive sentencing recommendations of federal prosecutors in a recent high-profile white-collar case.  Here are the particulars:

A federal judge in Los Angeles lambasted federal prosecutors late Wednesday at the sentencing of Bruce Karatz, the former chief executive of KB Home, who was given five years’ probation following his conviction on charges related to backdating stock options.

Judge Otis D. Wright II, in rejecting the government’s argument to send Mr. Karatz to prison for six and a half years, called the government’s sentencing memorandum “mean-spirited and beneath this office.”

Prosecutors said in a filing last month that sentencing Mr. Karatz to home detention in his “24-room Bel-Air mansion” would suggest “a two-tiered criminal justice system, one for the affluent … and a second for ordinary citizens.”...

Judge Wright did not appreciate the government’s take on things.  “But what was even more disturbing was the inflammatory language in the government’s report that if this court did not impose a harsh sentence that it was evidence of a two-tiered justice system, one of the rich and one for everyone else,” the judge said.  “To invite public ridicule and scorn on this institution, I think, is unspeakable.”

His remarks were reported by news wire services and confirmed to DealBook by two people who attended the courtroom hearing.  Federal prosecutors told reporters that the government “respectfully disagreed” with the judge’s decision.

Judge Wright ordered Mr. Karatz to serve eight months of his probation in home detention with electronic monitoring, pay a $1 million fine and perform 2,000 hours of community service.  His sentence followed the United States probation office’s sentencing recommendation.

November 12, 2010 in Offender Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Inmates having to sleep on floors in overcrowded West Virginia jails

This local article, which is headlined "Official says inmates sleeping on jail floors," spotlights the problems of jail overcrowding in West Virginia. Here are excerpts:

Officials say the issue of over-population has reached a critical point in the state's regional jails and prisons, with no clear-cut solution in sight.

Joe Thornton, Secretary of Military Affairs and Public Safety, said the issue has gotten so bad, inmates have slept on mattresses on the floors of some facilities. The Regional Jail Authority took up the problem at its quarterly meeting Wednesday at South Central Regional Jail.

One temporary solution has been the installation additional bunks at the 10 regional jails around the state.  The bunks will be mounted to the walls in the pods as per safety specifications, leaving less space for inmate and guard movement but providing additional beds, which officials hope keeps the inmates off the floors....

"We're getting to a point where we have no room at the inn," Thornton said.  "We don't have the right of refusal."  He said the problem of over-population in the regional jails stems from having too many offenders in the state's prisons.  Currently, there are about 1,600 of the Department of Corrections 6,639 inmates being held in regional jails around the state....

A commission established by Gov. Joe Manchin to study overcrowding in the state's jails and prisons released a report last July with 14 recommendations to ease the problem. Thornton said the state is working on implementing them.

Among the recommendations was accelerated parole for eligible inmates.  He said those eligible inmates would have their parole hearing 9 months before their estimated parole date rather than 12 months, meaning they would get out three months earlier.  Add to that a review of the state criminal code to review and possibly revise or repeal outdated laws....

Thornton said the idea of adding on to any prisons or jails was "not on the table" at this point because of the state of the economy, and building another prison facility or jail was all but out of the question, he said, citing a $200 million price tag.

November 12, 2010 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (4) | TrackBack

November 11, 2010

The latest data on women on death row

Thanks to this post at the Death Penalty Information Center, everyone can access this new report by Professor Victor Streib concerning the administration of the death penalty for female offenders.  The report spotlights that the death penalty in the United States is rarely imposed on women, though it does not directly answer the related questions of whether and how gender bias might impact the application of out ultimate punishment.

The report has lots of lots of notable information and data, and I always find especially interesting these particulars:


(1) Women account for about 10.0% of murder arrests annually;

(2) Women account for only 2.0% (167 / 8,292) of death sentences imposed at the trial level;

(3) Women account for only 1.7% (55 / 3,261) of persons presently on death row; and

(4) Women account for only 1.0.% (12 / 1,232) of persons actually executed in this modern era.


(1) A total of 167 death sentences have been imposed upon female offenders from 1973 through late-2010. Table 1 below provides these data by individual year.

(2) These 167 death sentences for female offenders constitute just 2% of all death sentences during this time period.

(3) The annual death sentencing rate for female offenders during the last decade has averaged four per year.

November 11, 2010 in Data on sentencing, Death Penalty Reforms, Race, Class, and Gender | Permalink | Comments (5) | TrackBack

Are residency restrictions a main reason 100,000 sex offenders are off the grid?

The question in the title of this post is prompted by this new story, which is headlined "Authorities lose track of 100,000 sex offenders." Here are the basics:

Thousands of convicted sex offenders are evading state and federal authorities, congregating in regions thought to have lax enforcement, slipping back and forth to Mexico or disregarding laws on reporting their whereabouts.

As authorities stitch together a national system for overseeing America's 700,000 convicted sex offenders, they face a sobering challenge: locating the estimated 100,000 sex offenders who aren't saying where they are.

State and local authorities, working with the U.S. Marshals Service, are conducting sex offender sweeps, checking old addresses and hunting down the missing. Officials say the offenders often are found where they have been all along — authorities have just fallen behind on paperwork. But sometimes not....

The federal agency has supplemented state and local authorities nationwide by arresting 11,853 sex offenders through last May for registration infractions, such as failing to register, or for moving without notifying authorities, according to agency data.

November 11, 2010 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (14) | TrackBack

"The Sooner Hayes Is Executed, The Better"

The title of this post is the headline of this potent commentary in today's Hartford Courant, to which I immediately respond "Yeah, good luck with that." Here are excerpts:

The killer shall be killed — so said the jury in the Cheshire home invasion murder case. Steven Hayes, one of the two men accused of entering the home of the William Petit Jr. family on that July night in 2007, will join 10 other men on Connecticut's death row.

Hayes has earned the needle. He should die, even though his death will not bring back Petit's wife, Jennifer, and daughters, Hayley, 17, and Michaela, 11.

He should die, even though his death will not make us safer.  He should die, though his death will take forever and a day to occur.  He should die, though the logic and reason for the death penalty offer little to support its continuation....

Few criminology experts would say the death penalty is a deterrent.  But that is beside the point.

As one acquaintance who had been against the death penalty said: "You think about if this were your wife and kids."  He said he would have no trouble ending Hayes' life.  Everyone wants justice for a wrong....

So Hayes will die by the state, though his death will be a long time coming.

According to Bureau of Justice statistics, the average inmate on death row spends at least a decade awaiting execution.  Michael Ross, the last person to be executed in Connecticut, sat on death row for 17 years before his execution.  Many of those seeking justice for the victims may well die before Hayes.

It would seem that the execution of the execution should be swifter.  But perhaps that would diminish the punitive aspect of the death penalty: the waiting.  Hayes will spend much of that time away from the rest of the prison population, never knowing when his time to die will come.

And when he is finally put to death, it will be a sedate and peaceful death compared to the horrendous and terrifying death suffered by his victims.

There is little logic and reason for the death penalty, though 35 of the 50 states have it and though 3,261 inmates were on death row as of Jan. 1, according to the NAACP Legal Defense Fund.  Considering how long it takes to carry out the death sentence, it may as well be a life sentence.  But logic and reason have little to do with wanting someone like Hayes to die, any more than logic played a role in what he did in the Petit home.

Those who cold-bloodedly do wrong in taking a life should have their lives taken.  Agreed, there are flaws.  There is injustice in how the death penalty is applied in America.  But in this case, Hayes has earned the needle he will get.  The final crime is that it will take so damn long.

November 11, 2010 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (55) | TrackBack

Commentary on the decision points of pardon from President Bush

Margaret Colgate Love astutely spotlighted for me a passage from President George W. Bush's new memoir about his "pardon surprise."  Here is that passage along with follow-up commentary from former US Pardon Attorney Love:

This is from President Bush's description of the pardon "surprise" at the end of his tenure (Decision Points at pp. 104-105):

"One of the biggest surprises of my presidency was the flood of pardon requests at the end.  I could not believe the number of people who pulled me aside to suggest that a friend or former colleague deserved a pardon.  At first I was frustrated.  Then I was disgusted. I came to see the massive injustice in the system. If you had connections to the president, you could insert your case into the last-minute frenzy.  Otherwise, you had to wait for the Justice Department to conduct a review and make a recommendation.  In my final weeks in office, I resolved that I would not pardon anyone who went outside the formal channels....

A few days [after telling the Vice President that he would not pardon Scooter Libby], I talked to another person about the pardon process.  On the ride up Pennsylvania Avenue on Inauguration Day, I told Barack Obama about my frustrations with the pardon system.  I gave him a suggestion: announce a pardon policy early on, and stick to it."

This is Margaret Colgate Love's comment:

President Bush's description of the "last-minute frenzy" over pardons in his final days in office is oddly reminiscent of what happened at the end of Bill Clinton's term.  It is interesting that the "flood of pardon requests at the end" came as a surprise to Mr. Bush, since his own Counsel Fred Fielding actually invited people to apply directly to the White House rather than have them get stuck in what had become a black box in the Pardon Attorney's Office at Justice.  Mr. Bush seems unaware that it was precisely his own early policy decision not to question or give direction to the Justice Department in pardon matters that led to the "massive injustice" in the system, just as President Clinton's neglect of his power had led to similar chaos and unfairness eight years before.  It is ironic that Mr. Bush felt "frustrated" and "disgusted" by the entirely predictable results of that policy.

To date it appears that, like President Bush, President Obama has decided to leave all matters related to pardons entirely in the hands of bureaucrats at the Justice Department without giving them any direction.  Experience teaches, however, that when the regular pardon program offers little or nothing to ordinary people, the wealthy and well-connected will seek a back-door channel.  Yogi would recognize this place.

UPDATE AND CODA:  Charlie Savage at the New York Times has this follow-up post, headlined "Bush Memoir Gives Short Shrift to His Pardon Record."  It notes: "As history, this portrayal of Mr. Bush’s handling of pardons is incomplete.  It omits mention of a slate of 20 felony offenders granted clemency by Mr. Bush on Dec. 23, 2008 -- less than a month before he left office."

In addition, former staff attorney in the pardon office, Sam Morison, sent me these additional points:

I agree entirely with Margy's analysis.  If the President Obama permits the established clemency advisory process to remain dysfunctional, he has no one but himself to blame for the quality of the advice he receives from DOJ or for the crush of special pleading at the end of the term.  As Margy points out, the results are entirely predictable.

I would only add the following coda. As has been previously reported but not much discussed, in last two administrations, the White House Counsel's Office specifically asked the Justice Department to pick up the pace of favorable clemency recommendations toward the end of the term, evidently in a belated recognition that the issue had been neglected.  On both occasions, the pardon attorney professed a lack adequate resources to comply with the president's wishes, but at the same time refused to relax the standard of review, knowing that he could run out the clock, as it were.  President Clinton reacted to the Department's recalcitrance by granting a rash of irregular cases that had not been properly vetted, whereas President Bush essentially shut the process down.  In neither case did the Department serve the best interests of the presidency.

November 11, 2010 in Clemency and Pardons, Who Sentences? | Permalink | Comments (8) | TrackBack

November 10, 2010

Talk in Arizona about budgets and the need for sentencing changes

This AP story, which is headlined "Lawmakers say Arizona budget woes, prison costs could provide impetus for sentencing changes," suggests that at least one set of state legislators is talking frankly about sentencing reforms to deal with budget challenges. Here are highlights:

Arizona's budget troubles could prompt lawmakers to seriously consider changing criminal sentencing laws to reduce or slow the costly growth of the state's prison population, two legislators said Tuesday.

Rep. Bill Konopnicki, R-Safford, said many of his colleagues' fear of being labeled soft on crime has kept the Legislature from taking up the issue. "We cannot afford the current policies that we have, nor is there the will in the Legislature to change it," Konopnicki said.

But he and Rep. Cecil Ash, R-Mesa, said that could change in 2011 due to steady increases in prison costs as the state is trying to close big budget shortfalls. "Between policy and budget, we are headed to a major crash," said Konopnicki, who will leave the Legislature in January. "The financial crisis is going to cause some people to take a good look at what we're doing."...

The Department of Corrections' annual appropriation for the current fiscal year is $949 million, which is 11 percent of the current $8.5 billion budget and an amount larger than the projected shortfall of up $825 million.

Ash heads a House committee studying possible sentencing changes. "We have a lot of good ideas out there," Ash said. "I sense there's a will to do things differently."

Options identified by legislative budget analysts to cope with rising prison costs include expanding the prison system, diverting some offenders to treatment programs and probation, releasing some prisoners early and returning fewer parolees to prison for violations....

Though those two lawmakers each said they perceived the budget troubles created new impetus for consideration of sentencing changes, another Republican legislator recently said the options identified by the legislative budget analysts would receive scant consideration.

November 10, 2010 in Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Documenting the reentry challenges for African-American women

I just got a notice from the ACS folks about this new issue brief by Professor Geneva Brown titled “The Intersectionality of Race, Gender, and Reentry: Challenges for African-American Women.” Here is a brief description of the document:

In her Issue Brief, Professor Brown explores the cumulative difficulties faced by African-American women who are caught up in the criminal justice system today, particularly after they have served their sentences and are trying to return to their communities and families.  She argues that current criminal justice policies have an inordinate effect on the African-American community at every step of the process, and in many instances have a harsher impact on women than men, especially where the women are the heads of their households.  The communities to which these women are seeking to return are also not equipped with the funding and services that are necessary to fully and effectively integrate ex-offenders.  In fact, many of the policies that are currently in place are more often an impediment to reentry than a help.  African-American women stand at the intersection of these complicated and difficult problems and their plight often goes unrecognized and unaddressed until well after the damage is done.  Professor Brown argues that lawmakers and criminal justice officials need to be aware of these issues and craft policies that help rather than hurt the chances for these women to succeed when they return to their lives.  Professor Brown lays out the issues and concludes that “[f]ederal and state legislatures have addressed certain facets of the reentry infrastructure, but more aggressive legislation is needed to repeal or amend laws that frustrate successful reentry of African-American women.”

November 10, 2010 in Collateral consequences, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (1) | TrackBack

"US appeals court judge endorses legal marijuana"

The title of this post is the headline of this new AP article.  Here are excerpts:

Judge Juan Torruella tells a law school audience in Puerto Rico that experimenting with legalization of marijuana and perhaps other drugs is a better way to reduce drug abuse and crime.

The 77-year-old judge says it's the only "realistic" alternative since the drug war has been "lost" at a high cost to society....

Torruella sits on the Boston-based U.S. Court of Appeals for the First Circuit.  He was nominated to be a federal judge by President Gerald Ford and elevated to the appeals court by President Ronald Reagan in 1984.

November 10, 2010 in Drug Offense Sentencing | Permalink | Comments (0) | TrackBack

Could California conduct a bunch of executions in the coming months?

The question in this title of this post is prompted by this local article which notes that "there are seven inmates from [various California] counties who have exhausted all regular appeals who could have their execution date set, according to Christine Gasparac, press secretary for the California Attorney General's Office."  Here's more:

The list of seven gained significance recently with the announcement that the California Department of Corrections has obtained four doses of a lethal-injection drug that can be used during a state-authorized execution.

Those seven murderers include Kevin Cooper, who was sentenced to death in May 1985 for slaughtering a Chino Hills couple, their daughter and a neighborhood youth shortly after he escaped from the California Institution for Men in Chino.  The adult victims, Doug and Peggy Ryen, were chiropractors who had their office in Anaheim Hills.

The state's attempt to execute convicted rapist/murderer Albert Greenwood Brown, Jr., of Riverside — who has been on Death Row since 1982 — failed in September when the CDC's only dose of the lethal-injection drug passed its expiration date. It would have been California's first execution in five years....

The other killers on the list of seven include Stevie Lamar Fields, sentenced to death in Los Angeles in August 1979; Michael Morales, given the death sentence in Ventura County in June 1983; David Raley, sentenced in Santa Clara County in 1988; Mitchell Sims, sentenced in Los Angeles County in 1987, and Fernando Belmontes, sentenced in San Joaquin County in 1982.

If past is prologue, nobody should seriously expect a bunch of executions in California anytime soon. But the lethal injection litigation log-jam has to break at some point, and at least a few of the 700 murderers on death row in California probably should at least start taking seriously the prospect that they may actually have their sentences carried out.

November 10, 2010 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (22) | TrackBack

November 9, 2010

"Post Padilla: Padilla’s Puzzles for Review in State and Federal Courts"

The title of this post is the title of this helpful new paper by Nancy King and Gray Proctor, which is now available via SSRN. Here is the abstract:

This article addresses questions that may face courts as defendants seek relief under the Court’s decision in Padilla v. Kentucky, which held that counsel’s failure to adequately inform the defendant of the deportation consequences of conviction constituted deficient performance under the Sixth Amendment.  Issues addressed include: express waivers of review in plea agreements; what constitutes deficient advice and prejudice sufficient for a finding of ineffective assistance; the retroactive application of Padilla to cases on post-conviction review; federal habeas review of state court decisions rejecting Padilla-type claims; procedural default, successive petition, and time bars to federal habeas review of Padilla claims; and other collateral relief.  This draft includes citations to emerging case authority available as of October 28, 2010.

November 9, 2010 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Eleventh Circuit to consider en banc how Georgia implements Atkins death penalty bar

A helpful reader altered me to this new order from the Eleventh Circuit, which orders en banc review in a case concerning Georgia's procedures for implementing the Supreme Court's 2002 Atkins ruling prohibiting the execution of mentally retarded persons. 

In this prior post, I reported on the panel ruling in Hill v. Schofield, No. 08-15444 (11th Cir. Jun. 18, 2010) (available here).  That panel decision declared unconstitutional Georgia's approach to implementing Atkins "because Georgia’s requirement of proof beyond a reasonable doubt [placed on the defendant to prove he is mentally retarded and thereby ineligible for the death penalty] necessarily will result in the execution of the mentally retarded [and thus] the Georgia Supreme Court’s decision [approving this approach] is contrary to the clearly established rule of Atkins." 

November 9, 2010 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Notable sex offender civil commitment ruling from NJ Supreme Court

As detailed in this local article, which is headlined "N.J. Supreme Court upholds civil commitment of sex offender who was denied therapy," the top court in the Garden State issued a big ruling about sex offender civil commitment today.  Here are the basics:

Sex offenders are civilly committed at the end of their prison sentences when the state determines that they are highly likely to commit new sex crimes. The sex offender in this case — referred to only by his initials W.X.C. — was accused of raping two women while burglarizing their homes in 1992. He was arrested while sexually attacking a woman in a nursing home.

W.X.C. pleaded guilty to two counts of aggravated sexual assault, one count of attempted aggravated sexual assault and other offenses including kidnapping and robbery. At sentencing, W.X.C. asked to be sent to the Adult Diagnostic and Treatment Center, the state's only prison specifically for sex offenders, to receive therapy. However, the state's evaluation said he did not meet the criteria because, as a sex offender, he was only repetitive, not compulsive.

After 12 years in prison, W.X.C. reached parole eligibility. The same psychologist who said W.X.C. was ineligible for treatment at ADTC recommended that the state review his case for possible civil commitment, saying he “does not appear to have had any appreciable sex-offender specific psychotherapy."

W.X.C was civilly committed in 2007. One doctor wrote that he has “not moderated his risk through treatment. He has not had treatment for his sexually inappropriate behavior.” W.X.C. argued in his appeal that the state's denial of treatment during his prison sentence was being used against him.

In a 5-2 decision, the state's highest court rejected his argument, saying the laws governing placement within the prison system and civil commitment cannot be equated. Just because some offenders do not meet the criteria for treatment at ADTC does not mean they cannot be civilly committed, wrote Justice Helen Hoens in the majority decision.

"The fatal flaw in defendant’s argument lies in its failure to appreciate that the two statutes are designed to serve different purposes and strive to achieve them through different regulatory mechanisms," wrote Justice Helen Hoens in the majority opinion. "The operation of the (Sexually Violent Predator Act) is neither punitive nor fundamentally unfair and we therefore reject defendant’s arguments that it is unconstitutional as applied to him and other offenders like him."

The full ruling in IMO the Civil Commitment of W.X.C. is available at this link.

November 9, 2010 in Criminal Sentences Alternatives, Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

New poll showing US support for death penalty now at 83%

This new UPI story reports the highlights of a notable new poll on US opinions about the death penalty:

While 83 percent in the United States support the death penalty for murder, 81 percent say innocent people likely have been executed, a poll indicated Tuesday.

Angus Reid Public Opinion reported the public is split on whether the threat of execution is a deterrent, with 39 percent agreeing and 35 percent saying no. Only 6 percent believe no innocent person has been put to death.

There were some regional and partisan differences with southerners slightly less likely to support the death penalty than others and independents less likely than either Democrats or Republicans.

More of the poll specifics are available via this report from the folks at Angus Reid Public Opinion.

November 9, 2010 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (26) | TrackBack

"How a Fraud's Value Affects Prison Time"

The title of this post is the headline of this new Wall Street Journal article.  Here are excerpts:

When Bruce Karatz was running KB Home, the giant home builder pulled in billions of dollars a year in revenue.  But now, a mere $11 million could help determine whether Mr. Karatz spends more than a half decade in prison....

The U.S. Probation Office, an arm of the courts, has recommended that Judge Otis Wright give Mr. Karatz probation and eight months of home confinement. The U.S. Attorney's office here wants a 6.5-year prison sentence.  In a filing, the prosecutors argue that confining Mr. Karatz in his "24-room Bel-Air mansion," would suggest "a two-tiered criminal justice system, one for the affluent ... and a second for ordinary citizens."

In a federal court filing, Mr. Karatz's lawyers support the Probation Office's sentence recommendation.  The filing adds that of 11 individuals around the country found guilty of crimes related to options backdating, six have received probation and none has been sentenced to more than two years in prison.

The key issue in the case revolves around how much financial loss KB Home and its shareholders suffered. The Probation Office believes there was no loss. Prosecutors argue that the $11 million, representing gains Mr. Karatz made or hoped to make at KB Home's expense, qualifies him for a multiyear prison term.

The dispute is part of a growing debate over whether the sentencing system for white-collar crimes has come to rely too heavily on calculations of financial losses to fraud victims.  Under the sentencing guidelines, legal experts say, an executive of a large public company convicted of a crime like securities fraud could be sentenced to life imprisonment on a first offense.

Loss calculations have "become the single most significant driving factor" in white-collar sentencing, says James Felman, a Tampa, Fla., co-chairman of the American Bar Association's committee on sentencing.  The ABA is looking at recommending guideline revisions to lessen the influence of such calculations.

It can also be tricky to quantify some losses, critics argue, such as trying to determine how much impact financial manipulations had on a company's stock price.  Even critics acknowledge there has been a logic to the increasing white-collar-crime penalties.  With sharp rises in sentences for drug-related crime there was a feeling that swindlers shouldn't be treated better than dope dealers.  Public outrage over scandals, such as Enron Corp., also played a role.

But some judges are balking. Last month in New York, U.S. Judge John Gleeson gave a convicted securities swindler five years even though the guidelines called for 17 to 22 years.  "Here in the trenches where fraud sentences are actually imposed, there is a more nuanced reality," he wrote.

In June, the Justice Department wrote to the U.S. Sentencing Commission, which oversees the guidelines, that "we have seen with increasing frequency district courts sentencing fraud offenders — especially high-loss fraud offenders — inconsistently and without regard to the federal sentencing guidelines." It recommended a review and possible revision of the rules.

November 9, 2010 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (4) | TrackBack

November 8, 2010

"Obama's Mercy Dearth"

The title of this post is the headline of this potent commentary by Professor Mark Osler that ran over the weekend in the Dallas Morning News.  Here are excerpts:

On Oct. 28, the White House announced that President Barack Obama had earlier in the month denied 71 pardon requests and 605 petitions for commutation of sentence, while granting none.  Nearly two years into his term, Obama has issued exactly zero pardons and no commutations, a sorry record that distinguishes him from nearly all of his predecessors.

This failure to act undermines not only an important constitutional mechanism, but the values that underlay it.  The pardon power was not inserted into the Constitution by accident –- that provision was promoted amongst the framers of the Constitution by Alexander Hamilton, who described it in the Federalist Papers as necessary to mitigate harshness in criminal law. The others agreed.

Is the wisdom of the framers now irrelevant? Of course not.  Overly harsh laws have recently been the topic of debate and reform.  Earlier this year, the draconian 100-1 ratio in federal sentencing laws between powder cocaine and crack (under which trafficking five grams of crack resulted in the same sentence as 500 grams of powder) was revised to a more reasonable 18-1 ratio.  In making this change, the same branch of government that created the overly harsh law recognized that the punishment did not fit the crime.

What the crack/powder reforms did not do, though, is make that change retroactive, and it is very likely that many of the petitions denied by Obama were from crack defendants sentenced under what Congress, the courts and Attorney General Eric Holder have all labeled an overly harsh and even irrational law.  (We don't know how many of those denied fall under this category, as the administration refuses to identify the people whose petitions were rejected.)

We should expect more from a constitutional law professor who becomes president.  The Constitution grants the president relatively few tools of power, and each is important....

Some have described the reverence Americans have for the Constitution as a "civil religion," and I'm not sure that is a bad thing. Religions instill values, and the Constitution certainly does that -– it promotes and describes the values of self-restraint, of consensus and of individual liberty.  That is not a bad batch of virtues.  In the pardon power, though, the Constitution expects expression of an additional virtue: mercy.

Mercy to those unfairly treated is an idea deeply engrained in the American consciousness and spirit, like the concepts of liberty and restraint.  The framers did not lightly place the unchecked power of the pardon in the president's hands, because that power can easily be abused (as it sometimes has been).  Still, they granted the executive that power with the expectation that from time to time rough edges in criminal law sometimes would have to be shaved off.


Some older and newer related posts:

November 8, 2010 in Clemency and Pardons, Who Sentences? | Permalink | Comments (14) | TrackBack