November 17, 2010
"Reimagining Criminal Justice"
The title of this post is the title of this provocative new article from Cecelia Klingele, Michael Scott and Walter Dickey available via SSRN. Here is the abstract:
The criminal justice system needs more than reform. It requires reimagining. In its present state, by every measure that matters, the criminal justice system is failing to deliver what can fairly be expected of it. Many crimes are never reported, and most crimes that are reported go unsolved. When offenders are identified and apprehended, they are often processed through the criminal justice system in a manner that values expediency over enhanced public safety. Despite falling crime rates, many communities remain unsafe. Limitations on the capacity of law enforcement agencies, prosecutors' offices, trial courts, and correctional programs prevent the criminal justice system, as presently configured, from responding to the volume of cases it processes with the time and attention needed to ensure justice is done and public welfare and security are advanced.
In response to these glaring deficiencies in the current system, many policymakers and advocates have demanded increased resources for more patrol officers, more prosecutors, and more prisons -- as though more of what is not working will somehow fix the problem. We take the position that more fundamental changes are needed if the criminal justice system is to succeed in its dual goals of reducing crime and serving the ends of justice. In this Essay, we set forth the reasons for our belief that the system needs to be re-imagined, asserting that whether the measure is efficiency, effectiveness, or equity, the current system fails to deliver. We explore the meaning of public safety, emphasizing that the traditional tools of arrest, prosecution, and conviction, standing alone, are unlikely to make homes, streets, and neighborhoods secure in any meaningful way. Drawing primarily on examples from the field of policing, we point to examples of ways in which local communities have successfully tackled discrete public safety problems, relying less on the invocation of the traditional criminal justice system and more on the creative use of state power and community resources. From those examples, we derive three principles that link the best of these efforts. We then consider the implications of our imagined criminal justice system for the roles of police, prosecutors, judges, and correctional agents, and for legal research and education as well. Finally, we acknowledge practical and theoretical obstacles to the change we advocate, and end with our reasons for optimism about the future of the criminal justice system.
November 16, 2010
Does Abbott provide new and added support for applying the FSA to pending cases?
The Supreme Court's unanimous (and unsurprising) opinion in Abbott v. US (available here; discussed here), which adopted the government's approach to the application of the special firearm sentencing provisions set forth in 924(c), may seem of little relevance to anyone but defendants who face multiple sentences for multiple offenses that carry multiple mandatory minimum sentence provisions. But, for anyone currently litigating another (now hot) statutory sentencing issue, Abbottis still worth a close read. Specifically, I think defendants and attorneys arguing that the new Fair Sentencing Act's provisions concerning crack sentencing should apply to pending cases can draw some new and added support from the Justices' work in Abbott. Let me explain my thinking.
First, at slip op. 10 of the Abbott opinion, the Supreme Court stresses the "primary objective" of the statutory amendment at issue in that case. The Abbottcourt reasons that because Congress meant to broaden the reach of the gun sentences set out in 924(c), the defendant's arguments to limit the reach of that statute were not compelling. I think the inverse argument could be made concerning the "primary objective" of the new FSA amendments to crack sentencing provisions: because Congress clearly meant to reduce the scope and impact of the disparity between crack and powder offenses, the government's arguments to limit the applicability of the new statute seem to me to be less than compelling.
Second, at slip op. 11 of the Abbottopinion, the Supreme Court stresses the defendants' suggested statutory reading "would result in sentencing anomalies Congress surely did not intend" because, under that reading, "the worst offenders would often secure the shortest sentences." A similar argument can be made concerning the government's suggested approach to the FSA: because the US Sentencing Commission has amended and made applicable new crack guidelines that plainly apply to pending case involving large quantities of crack, the failure to give the new FSA statutory provision in yet-to-be-sentenced cases means that only "the worst offenders would often secure the shortest sentences" as a result of the FSA's changes while cases are still in the pipeline.
Third, at slip op. 14 of the Abbottopinion, the Supreme Court rejects the defendants' suggestion that Congress expected the federal sentencing guideline to serve as a gap-filler because there is not any indication that "Congress was contemplating the Guidelines' relationship" to mandatory minimum sentencing when it amended 924(c). But, in sharp contrast, Congress in the FSA plainly and expressly did contemplate the Guidelines' relationship to crack sentencing statutes when it enacted the fair Sentencing Act. Thus, the kind of Guideline-centric statutory construction claim rejected in Abbottshould have far more force in the FSA setting.
Fourth, at slip op. 16 of the Abbott opinion, the Supreme Court asserts there is "strong contextual support" for government's statutory interpretation in that case. In contrast, as I suggested in this amicus letter submitted in a pending case in the Southern District of New York, I see "strong contextual support" for defendants' proposed application of the FSA to all pending not-yet-sentenced cases.
Some recent related posts:
- Adding my two cents concerning application of the FSA to pending cases
- New USDC opinion applying new FSA law to not-yet-sentenced defendants
- Seeking ground reports on the FSA's application to not-yet-sentenced cases
- Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?
Blakely meets Crawford in interesting NC appeals court ruling
A couple of helpful readers alerted me to an interesting opinion issued today by a North Carolina intermediate appellate court in North Carolina v. Hurt, No. COA09-442 (N.C. App. Nov. 16, 2010) (available here). This paragraph from early in the opinion highlights why Hurt is a must-read for all hard-core Sixth Amendment fans:
Whether a defendant has a right to confront witnesses against him at sentencing trials conducted pursuant to Blakely is an issue of first impression in our courts. Defendant contends that United States Supreme Court decisions Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004), and, by extension, Melendez-Diaz v. Massachusetts, 557 U.S. __, 174 L. Ed. 2d 314 (2009), should apply at all sentencing proceedings, whether capital or non-capital, that are held before a jury. For the reasons discussed herein, we agree that the Confrontation Clause of the Sixth Amendment applies to all sentencing proceedings where a jury makes the determination of a fact or facts that, if found, increase the defendant’s sentence beyond the statutory maximum. Thus, because the trial court’s admission of testimonial hearsay evidence during the aggravation phase of Defendant’s sentencing proceedings violated the Confrontation Clauses of the federal and state constitutions and the constitutional errors were not harmless beyond a reasonable doubt, we remand this case for a new sentencing hearing.
New (biased?) death penalty poll provides more grist for debate
This morning I received via e-mail this press release from the Death Penalty Information Center headlined "Poll Shows Growing Support for Alternatives to the Death Penalty; Capital Punishment Ranked Lowest Among Budget Priorities." Here is how the release starts:
The Death Penalty Information Center today released the results of one of the most comprehensive studies ever conducted of Americans’ views on the death penalty. A national poll of 1,500 registered voters conducted by Lake Research Partners shows growing support for alternatives to the death penalty compared with previous polls. A clear majority of voters (61%) would choose a punishment other than the death penalty for murder, including life with no possibility of parole and with restitution to the victim’s family (39%), life with no possibility of parole (13%), or life with the possibility of parole (9%).
In states with the death penalty, a plurality of voters said it would make no difference in their vote if a representative supported repeal of the death penalty; and a majority (62%) said either it would make no difference (38%) or they would be more likely to vote for such a representative (24%).
“For decades, politicians have equated being tough on crime with support for the death penalty, but this research suggests voters want their elected officials to be smart on crime, use tax dollars wisely, and fund the services they care about the most. Capital punishment is not a high priority for voters and is not the ‘third rail’ of politics,” said Richard Dieter, Executive Director of Death Penalty Information Center.
“We see a real openness to considering life with no possibility for parole as a punishment for murder and a real awareness among Americans of the many problems with the death penalty. It is likely we will see Americans moving away from support for the death penalty as states and local governments grapple with tight budgets and as today’s younger voters and Latinos move into the core of the electorate,” said pollster Celinda Lake.
Lots more details about the poll result and other specifics are available via this DPIC page. Though I am not an expert on polling, based on a quick review of stuff at DPIC, I cannot help but express concern that this latest poll was conduct in a way designed to prompt anti-death-penalty responses.
Specifically, the key question about support for the death penalty sets forth a series of alternatives for what the "penalty for murder should be." Because relatively few of even the most passionate death penalty advocates want all murders of all types always sentenced to death, I am not surprised that this prompt does not get a majority of people expressing affinity for the death penalty. But if the query was recast to ask "what is the maximum penalty that should be legally available for the most heinous and brutal murderers," I suspect the polling result would look very different.
Notably, another recent poll with a seemingly more balanced question reporoted well over 80% support for the death penalty (discussed here). For this reason and others, I doubt this new DPIC poll will move many politicians (or hearts and minds) on this topic. Nevertheless, I always find it is interesting to see how committed advocates will try to more the needle on these kinds of criminal justice issues.
Notable commentary about California's sex offender residency restrictions
A couple of major papers in California have a couple of notable commentaries about the state's sex offender residency restrictions. First, the Sacremento Bee has this editorial, headlined "Jessica's Law needs a major overhaul." Here is a snippet:
Proposition 83, the 2006 initiative popularly known as Jessica's Law, banned sexual predators from living within 2,000 feet of public and private schools and parks where children regularly congregate.
The initiative promised that those restrictions would make us all safer. Voters believed the sales job, approving the measure overwhelmingly, 70.5 percent for it and 29.5 percent against.
As it turned out, the measure has fallen short of promises. Unrealistic restrictions have made it impossible for hundreds of paroled sex offenders to find legal places to live. Predictably, homelessness has soared. Before voters approved the initiative, 88 registered sex offenders on parole were homeless. Today, 2,100 sex offender parolees are considered to be transient, a 24-fold increase. The Sex Offender Supervision and GPS Task Force stated the obvious in a report released last week: "Homeless sex offenders put the public at risk."
This is no soft-on-crime panel. Composed of police chiefs, victims' advocates, and parole and probation officers, the task force found that homeless parolees were more unstable and therefore more likely to abscond from supervision or to reoffend. Homelessness makes GPS tracking, another key feature of Jessica's Law, more expensive and more difficult to carry out.
Second, there is this op-ed from a public defender in the Los Angeles Times, which is headlined "Stop the sex offender fear-mongering." Here is how it starts:
Some critics of Los Angeles County Superior Court Judge Peter Espinoza's order temporarily staying enforcement of the sex offender residency restrictions of Jessica's Law, reported by The Times on Nov. 5, are exploiting the legitimate fears of decent people. These critics ignore the reality that these particular residency restrictions apply to all paroled sex registrants, most of whom have never harmed a child, and do not effectively protect our children. In fact, by creating a crisis of homelessness among sex registrants, broad residency restrictions actually endanger our community. Ordinarily, the recidivism rate among the vast preponderance of sex offenders is low. Why destabilize them and create a far greater risk of reoffending? Indeed, Espinoza's order came after the defenders of the residency restriction failed to offer any evidence or argument to the contrary.
Some related recent posts:
- Law enforcement panel urging repeal of sex offender residency restrictions in California
- Are residency restrictions a main reason 100,000 sex offenders are off the grid?
- State judge declares California sex offender residency restriction unconstitutional
- California struggling with new challenges posed by GPS technocorrections
- Effective report on the ratcheing back of Georgia's sex offender residency restrictions
Big dispute over guideline calculation for convicted former Chicago police commander
This new article from the Chicago Tribune, which is headlined "Prosecutors: Burge should spend decades in prison; Lawyers say they'll seek probation for perjury, obstruction convictions," spotlights a notable guideline calculation dispute in a notable federal criminal case. Here are the details:
Federal prosecutors will seek at least 24 years in prison for disgraced former Chicago police Cmdr. Jon Burge, saying his torture of criminal suspects decades ago shook public confidence in law enforcement and the criminal justice system.
Such a stiff sentence for Burge's conviction on perjury and obstruction of justice is sure to stir debate at his sentencing Jan. 20. The probation office has recommended that Burge face 15 to 21 months in prison under federal sentencing guidelines, while his lawyers have said they would seek probation, noting that when Burge was convicted when he was 62 and had prostate cancer.
In court papers filed last week, prosecutors disputed the probation office's findings, saying Burge deserved a sentence of about 24 to 30 years under the sentencing guidelines. The government cited the "stain" that Burge's torture of suspects left on the department and the more than $30 million the city has spent on lawyers and payouts to Burge's victims as a result of many lawsuits....
A jury convicted Burge in June on all three counts of obstruction of justice and perjury for lying in a 2003 civil lawsuit when he denied he knew of or took part in torture under his command at the Calumet Area headquarters on the city's South Side.
For years it looked as if Burge would escape criminal charges altogether. He was fired from the Police Department in 1993 for torturing a cop killer, but a four-year investigation by special Cook County prosecutors concluded in 2006 that the statute of limitations on the claims of abuse had long passed. It wasn't until 2008 that federal prosecutors figured out a way to indict him — not for the tortures themselves, but for lying about them.
November 15, 2010
With all votes now counted, Arizona passes medical marijuana initiative
As detailed in this new CNN piece, which is headlined "Arizona voters approve medical marijuana law," it now appears almost official that Arizona voters approved the state's medical marijuana initiative earlier this month. Here are the specifics (along with a roll-call of states in which medical pot is now legal):
Almost two weeks after polls closed, Arizona voters have approved a medical marijuana law, state officials said Monday. The close vote -- by a margin of 4,341 votes -- will be certified by the Arizona Secretary of State's Office on November 29, said spokesman Matthew Benson. A ballot count from Maricopa County over the weekend allowed state officials to provide the results, he said.
Arizona becomes the 15th state, along with the District of Columbia, to have passed a medical marijuana law since 1996, said a spokesman with the advocacy group Medical Marijuana Project. The Arizona law will allow patients with "debilitating medical conditions" to use cannabis if they have a recommendation from their physician....
Arizona's Proposition 203, approved 841,346 to 837,005, will allow about 120 clinics to dispense marijuana to patients with prescriptions, project officials said. Patients who live more than 25 miles from a dispensary can grow their own marijuana.
The other states with medical marijuana laws are Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Oregon, New Jersey, New Mexico, Nevada, Rhode Island, Vermont and Washington, project officials said.
"Talking About Prosecutors"
The title of this post is the title of this intriguing looking article by Professor Alafair Burke, which is avaiable via SSRN. Here is the abstract:
This Article explores the narrative that the scholarly literature on wrongful convictions uses to talk about prosecutors. In the prevailing narrative of the wrongful conviction literature, stories of bad prosecutorial decision making in the cases against Genarlow Wilson, the Jena Six, and three Duke lacrosse players are merely high-profile examples of misconduct that happens every day in America’s prosecutors’ offices and courtrooms. What emerges from the current discourse on wrongful convictions is a language of fault — fault placed on prosecutors who fail to value justice at each turn of the proceedings.
Separate from the empirical question of how widespread intentional misconduct is among prosecutors, this Article questions the efficacy of fault-based rhetoric in a world in which prosecutors view wrongful convictions as statistical anomalies, their antagonists as uncommonly bad apples, and themselves as ethical lawyers. The rhetoric of fault is counterproductive because it alienates the very parties who hold the power to initiate many of the most promising reforms of the movement. In contrast, this Article suggests the use of a “no-fault” rhetoric that focuses on structural and cognitive impediments to neutral prosecutorial decision-making. A “no-fault” rhetoric that emphasizes how even ethical prosecutors might inadvertently contribute to wrongful convictions carries the potential to fold prosecutors into the movement while simultaneously pressuring them to initiate self-focused reforms.
Out-going Ohio Gov Ted Strickland commutes death sentence on eve of execution
The Columbus Dispatch has this breaking news, headlined "Strickland spares killer of child from execution." Here are the details:
In the last death penalty case he will face as governor, Ted Strickland this morning spared the life of convicted killer Sidney Cornwell of Mahoning County. Cornwell was scheduled to be executed at 10 a.m. Tuesday at the Southern Ohio Correctional Facility near Lucasville. He shot to death 3-year-old Jessica Bellew on the porch of her home in 1996.
Strickland said while there is "absolutely no doubt that Mr. Cornwell is guilty of the crime of aggravated murder -- and he has admitted that," he determined that the death penalty was not appropriate given mitigating circumstances that were not presented at the time of sentencing.
Strickland noted that Cornwell suffers from a genetic disorder known as Klinefelter's syndrome, which impacts both body and mind, a fact unknown to both the trial judge and jury. "Because the trial jury and sentencing judge did not have information at the time of sentencing about Mr. Cornwell's Klinefelter's syndrome, I have concluded that it would be inappropriate to proceed with the death penalty in this case. There can be no doubt that Mr. Cornwell's conduct still necessitates severe punishment. Accordingly, I have decided to commute his sentence to a term of life in prison without the possibility of parole."
Governor Strickland's full statement in support of this sentence commutation can be found at this link. Notably, the statement cites dissenting two opinions, one from a one member of the parole board and one from a member of the Sixth Circuit panel, in support of the decision to grant clemency. Among other stories, this clemency reveals the potential impact of authoring dissenting opinions in a variety of contexts.
As my post title hints, I think it is fair to suggest that Governor Strickland, who presided over a record 17 execution during his single term in office, might not have granted this clemency had he been re-elected and was looking forward to governing the state for another four years. But with those kinds of concerns not present following his close loss to new incoming Ohio Governor John Kasich, Strickland may have felt more free to close with a high-profile capital commutation.
SCOTUS grants certiorari on two pauper defendant criminal justice petitions
In addition to handing down a unanimous ruling in the Abbott mandatory minimum case (noted here), the SUpreme Court granted cert this morning to two new cases, Tolentino v. New York and Fowler v. United States. I believe Tolentino deals with an exclusionary rule issue from the New York state courts, and that Fowler deals with the application of a federal murder statute. (SCOTUSblog will likely have key papers from this cases up before long.)
Though time will tell if either Tolentino or Fowler will be consequential cases, I already find it significant that the Justices decided to take up two cases in which criminal defendants lost appeals below. This fact along does not ensure a pro-defendant ruling from SCOTUS, but it does suggest that at least four Justices were at least not too pleased with how the government won below in these cases.
SCOTUS adopts majority reading of 924(c) mandatory minimum provisions in Abbott
The Supreme Court today handed down its opinion in Abbott v. US, No. 09–479 (S. Ct. Nov. 15, 2010) (available here). The Justices unaniminously (and unsurprisingly) adopted the government's approach to the application of the mandatory minimum gun sentences set forth in 924(c). Here is a key paragraph from the start of Justice Ginsburg's opinion for the Court:
We hold, in accord with the courts below, and in line with the majority of the Courts of Appeals, that a defendant is subject to a mandatory, consecutive sentence for a § 924(c) conviction, and is not spared from that sentence by virtue of receiving a higher mandatory minimum on a different count of conviction. Under the “except” clause aswe comprehend it, a §924(c) offender is not subject to stacked sentences for violating §924(c). If he possessed,brandished, and discharged a gun, the mandatory penalty would be 10 years, not 22. He is, however, subject to the highest mandatory minimum specified for his conduct in §924(c), unless another provision of law directed to conduct proscribed by §924(c) imposes an even greater mandatory minimum.
November 14, 2010
"Backers of Legal Marijuana Find Silver Lining in Defeat of California Measure"
The title of this post is the headline of this piece from today's New York Times. Here is how it starts:
Proposition 19, which would have legalized marijuana in California, received more votes than the Republican nominee for governor, Meg Whitman. It also received untold news coverage, bringing the debate a new level of legitimacy in the eyes of many supporters. And while it lost — with 46 percent of the vote — its showing at the polls was strong enough that those supporters are confidently planning to bring it back before voters in California, and perhaps other states, in 2012.
“We’re going to win,” said Aaron Houston, the executive director of Students for Sensible Drug Policy, a nonprofit group in Washington. “And we’re going to win a whole lot sooner than anybody thinks.”
But for all that heady talk, proponents of legalization still face a series of stiff challenges, including winning over older members of the electorate — who overwhelmingly rejected the measure — as well as wary elected officials from both political parties. And while most advocates say that Proposition 19 was a high-water mark for the movement, many admit that the road to legalization will also require new campaign ideas, more money and a tighter, more detailed message to overcome persistent cultural concerns about the drug.
“The Prop 19 campaign really did not do anything to help people get over their fear of marijuana, the substance,” said Steve Fox, director of government relations for the Marijuana Policy Project, a national organization that has helped pass medical marijuana laws. “If people believed marijuana is a dangerous drug that people shouldn’t use before the campaign, that is probably how they felt at the end of the campaign.”
In California, Proposition 19’s showing was exactly in line with a pre-election Gallup survey that found 46 percent of Americans’ favoring legalization. That support has been growing for years, particularly in the Western states, where 58 percent now support legalization, according to Gallup.
But in an off-year election, one critical demographic for the “Yes” side simply did not show up in California: the youth vote. “It appears that the bump that we hoped for, those hopes were overstated,” said Ethan Nadelmann, the executive director of the Drug Policy Alliance, which advocates for liberalizing drug laws. “Clearly, we were overly optimistic.”
Cases being dismissed in Georgia due to overcrowded dockets and lack of resources
A helpful reader altered me to this notable article from the Atlanta Journal-Constitution, which is headlined "Fulton cases thrown out because trials long delayed: More Fulton prosecutions may be thrown out on speedy-trial grounds." Here is how it starts:
Kenya Kemp was stunned when she learned the Georgia Supreme Court had dismissed the case against her brother’s alleged killers. When she found out a reason why — that Fulton County prosecutors did not investigate the case for nearly four years — she was livid.
“I feel it’s a big injustice, that they really dropped the ball,” Kemp, 29, said last week. “Those two guys, all they can do is walk away scot-free. My brother, he had three beautiful kids. All they can do is stand over his tombstone.”
In its ruling last Monday, a divided state Supreme Court upheld a trial judge’s ruling dismissing murder charges against the two men accused of gunning down Kenneth Kemp by firing at least five shots in his back on Aug. 7, 2005. From late that year until July 2009, prosecutors abandoned the case, the court noted. By the time the district attorney’s office obtained an indictment in August 2009, the apartments where the killing occurred had been condemned.
The ruling is one of a number handed down over the past year in which appellate courts have dismissed Fulton cases on grounds the state waited too long to either indict the case or bring it to trial. Other challenges seeking to dismiss Fulton prosecutions on speedy-trial grounds are pending. These cases include defendants accused of murder, child molestation, elderly abuse and armed robbery, according to court records.
“Fulton is particularly prone to this problem because of the overcrowded docket and lack of resources,” said Ashleigh Merchant, a lawyer representing a defendant who prevailed on a speedy-trial motion. “When there is an overcrowded docket, someone needs to come in and re-evaluate cases to determine which cases have a higher priority.”
"Hundreds Die of Illnesses in County Jails"
The title of this post is the headline of this piece from the Texas Tribune. Here are some excerpts:
Sheriffs say that they are doing everything they can to care for people who come to them with a multitude of physical and mental illnesses that are exacerbated by drug and alcohol addiction. And, they say, they are struggling to meet the health care needs of more inmates at a time when budgets are dwindling.
There are no state standards for health care in county jails, but criminal justice advocates and correctional facility experts say the large number of illness-related deaths prove they are needed. “People aren’t dying of old age in jails,” said Michele Deitch, a jail conditions expert and professor at the University of Texas at Austin’s Lyndon B. Johnson School of Public Affairs. “Those numbers are more likely to be reflective of medical care concerns.”
The data analyzed by the Tribune related to more than 1,500 deaths that occurred in law enforcement custody statewide from January 2005 through September 2009. Nearly 500 of those deaths were inmates who were in the custody of the state’s 254 sheriff’s departments. Some were the result of high-intensity pursuits or suicides that occurred before an offender was arrested. Some happened during the course of the arrest, when a person was shot, tased or restrained by officers.
But more than half of the deaths reported by county law enforcement — 282 — happened as a result of an illness contracted before or during incarceration. Many inmates died of heart conditions; some of cancer or liver and kidney problems; and others of afflictions ranging from AIDS to seizure disorders and pneumonia.