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November 27, 2010

Noting California's difficulties with getting representation for its condemned

The Los Angeles Times has this lengthy article noting the lawyering problems serving to clog up California's death row.  The piece is headlined "Lack of funding builds death row logjam; Convicted killers have a hard time finding lawyers to handle their final appeals, which can be both expensive and gut-wrenching."  Here is an excerpt:

The inability of the state to recruit lawyers for post-conviction challenges, or habeas corpus petitions, has caused a major bottleneck in the state's criminal justice system. Nearly half of those condemned to die in California are awaiting appointment of counsel for these challenges.

This "critical shortage," as the state high court describes it, has persisted for years, despite lawyer gluts.  The average wait for these attorneys is 10 to 12 years.

Criminal defense lawyers attribute the scarcity to inadequate state funding, the emotional toll of representing a client facing execution and the likelihood that the California Supreme Court will uphold a capital conviction.

"There are myriad reasons why dozens of lawyers who used to do these cases decide they can't afford it," said UC Berkeley law professor Elisabeth Semel. "I am talking about not going broke because you are trying to do the right thing for your client."

Prosecutors and death penalty supporters blame the culture of criminal defense work or, as Kent Scheidegger, legal director Criminal Justice Legal Foundation, put it, the zeal "to turn over every rock in the world."

"The idea that you have to pull out every stop in every case is excessive," said Scheidegger, whose group favors capital punishment.  "There is a lot of pressure, but that doesn't mean the state has to or should pay for it."

Lynne Coffin, 61, a criminal defense lawyer who does death penalty cases almost exclusively, said fewer young lawyers are willing to take on the work.  She said even she is uncertain whether she would have become a capital defender "knowing what I know now."

"It's a big toll on people to have clients on death row," Coffin said.  "Even if they are nowhere near execution, they are very needy.  Most have no family connections anymore, no money, no friends, so the lawyer becomes the source of everything....  Emotionally it is very taxing."

November 27, 2010 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (22) | TrackBack

Colorado working hard on medical marijuana regulations

This new article, headlined "Colorado grapples with effort to create the first state marijuana regulations," spotlights some of the challenges one state is facing in trying to develop rules for legal marijuana production and sales. Here are excerpts:

What's in that joint, and how can you be sure it's safe?

Colorado is working toward becoming the first state to regulate production of medical marijuana.  Regulators say that pot consumers deserve to know what they're smoking and that producers should have safety regulations such as pesticide limits for plants destined for human consumption.... Colorado officials are having a tough time writing regulations for a product that's never been scrutinized or safety-tested before.

New Mexico requires marijuana products to be labeled by strain and potency, and is planning by the end of the year to allow health inspectors to review samples.  But currently none of the 14 states that allow medical marijuana regulate how it's grown....

Colorado hopes to have in place by early next year some sort of labeling and inspection standard for marijuana sold commercially, under provisions of a new state law. But it's a daunting task.  Physicians, pot shop owners and state regulators all say standards are needed but guidelines don't exist.

November 27, 2010 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

"Presumed Guilty: Prosecutions without evidence"

The title of this post is the headline of this details special report that was recently published in the Cleveland Plain Dealer.  Here is how the report is previewed:

In the past decade, Cuyahoga County judges have dismissed 364 cases mid-trial because they said prosecutors failed to provide the most basic evidence to sustain a conviction.

The Plain Dealer examined those cases.  The judges' rulings indicate that county Prosecutor Bill Mason's office has pushed hundreds of marginal criminal cases to trial in the past decade.

The special report includes these articles, among others:

November 27, 2010 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

November 26, 2010

Any (creative) suggestions for Tom DeLay's upcoming sentencing?

The question in the title of this post is prompted by this AP article, which is headlined "Judge has many options in sentencing ex-Rep. DeLay." Here is how the article starts:

Former U.S. House Majority Leader Tom DeLay argued throughout his trial that the deck was stacked against him by a politically motivated prosecutor and a jury from the most Democratic city in one of the most Republican states.

But following DeLay's conviction Wednesday on money laundering and conspiracy charges, some legal experts say the edge may now shift to the Republican who represented a conservative Houston suburb for 22 years.

Before DeLay's inevitable appeal, which his lawyers predict will be a far friendlier process than his trial, he faces sentencing next month from Senior Judge Pat Priest. While technically the money laundering charge carries a punishment of up to life in prison, the judge has wide latitude and could end up just giving him probation.

"It is absolutely impossible he would get anywhere near life," said Philip Hilder, a Houston criminal defense attorney and former federal prosecutor. "It would be a period of a few years, if he gets prison."

Barry Pollack, a Washington-based lawyer who represents clients in white-collar and government corruption cases, said the judge may not feel the need to throw the book at DeLay, figuring the conviction itself is severe punishment for someone who once ascended to the No. 2 post in the House of Representatives.

For example, as a convicted felon, DeLay won't be able to run again for public office or even be able to cast a vote until he completes his sentence. "I think in a lot of cases a judge wants to make an example, but I don't see that happening here," Pollack said.

Maybe the sentencing judge should consider ordering DeLay to do a report on the careers of other House leaders like Nancy Pelosi. Or make him become a commentator on MSNBC?

November 26, 2010 in Celebrity sentencings, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (23) | TrackBack

China's top court reversing 10% of death sentencing in recent years

This AFP piece provides an interesting report on recent developments in China's administration of the death penalty.  Here are details:

China has overturned 10 percent of death sentences handed down in the country since the top court began reviewing them in 2007 in a bid to limit use of capital punishment, an official has said.

Most of the reversals were made due to insufficient evidence, procedural flaws, or because the penalty was too harsh, Hu Yunteng, head of research for the Supreme People's Court, was quoted saying by Friday's China Daily.

China is believed by rights groups to execute more people than the rest of the world combined, and it gave the top court final review powers in 2007 amid concerns some death sentences were unwarranted.

"We must make sure the use of the death sentence is accurate and free of mistakes to respect and protect the convicts and their rights," Hu said.  "The Supreme People's Court will not tolerate any mistakes regarding evidence or procedure and will thoroughly investigate questionable judgements."

Hu said the supreme court had overturned "on average" 10 percent of death sentences, according to the report, which provided no further explanation.  Most executions are carried out for violent crimes such as murder and robbery, the report said, but drug trafficking and some corruption cases also are punishable by death.

Hu declined to say how many people were executed each year, the report said.  The figure is treated as a state secret in China.

In other international death penalty news, this article spotlights in its headline that "Sweden enjoys 100 years without executions."

November 26, 2010 in Death Penalty Reforms, Sentencing around the world | Permalink | Comments (1) | TrackBack

"State mulls private alternatives to public prisons"

The title of this post is the headline of this notable editorial in today's Orlando Sun-Sentinel. Here are excerpts:

Privatizing prisons may be "on the table" — as new Senate President Mike Haridopolus has said — but state leaders would be wise to avoid rushing to fast-track it.

Privatization fits in nicely with Gov.-elect Rick Scott's plans to slash almost half of the state's $2.4 billion prison budget. The $1 billion cut in penal costs is part of Scott's efforts to make up the estimated $2.4 billion state budget shortfall Scott will inherit when he is sworn in as governor in January.

Florida's crime rate as decreased over the past decade, and that's good news.  Except that, during that same time, the state's incarceration rate increased dramatically, thanks to tougher sentencing enacted to keep inmates behind bars longer.

Higher incarceration rates usually mean higher costs to operate prisons, which prompted some state leaders to begin mulling the private-prison alternative. It's not a new concept.  Florida already lists six privately run prisons, with another 2,000-plus-bed facility opening in 2011.

If tougher policies keep violent criminals locked up, it's a price Florida must pay, of course.  But there's evidence, too, that many being locked up for longer periods of time are those with non-violent, more minor drug offenses that might better be dealt with in other ways than prison cells....

Facing a multibillion-dollar budget shortfall, state leaders are correct to consider trimming penal costs, but not by a quick substitution of a private facility whose profit margins depend on high incarceration rates and taxpayer subsidies.  State taxpayers would be better served if their leaders examined incarceration rate data to determine if the legal system can save money by tweaking current sentencing guidelines and release laws and evaluating decisions by courts and parole boards to see if all this leads to imprisoning non-violent offenders who could repay their debt to society in a more cost-effective way.

The state may well find it can save money by reducing the time and resources spent on housing minor offenders.  BOTTOM LINE: There are better options than relying on private prisons.

November 26, 2010 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

November 25, 2010

A few defendants giving clemency thanks in Illinois and Ohio

As detailed in these press reports, a few defendants are saying thanks for some holiday clemency grants in Illinois and Ohio:

Kudos to these governors for delivering a little extra holiday cheer.  Too bad President Obama has yet to get with the clemency program.

November 25, 2010 in Clemency and Pardons, Who Sentences? | Permalink | Comments (2) | TrackBack

November 24, 2010

Thankful that media is finally giving President Obama some pardon grief

President Obama continued the modern trend of turkey pardons today, bringing his slemency record to turkeys 4, humans 0.  Upon reviewing the news reports of this now-traditional Thanksgiving event, I was pleased to see these media outlets focused on President Obama's now historic failings in the exercise of his constitutional clemency powers on behalf of people:

UPDATE:  I just saw that NPR also had this lengthy piece on President Obama's pitiful pardon practices, which is headlined "Obama's White House Pardons: Turkeys, Yes; Humans, No."

November 24, 2010 in Clemency and Pardons, Who Sentences? | Permalink | Comments (4) | TrackBack

Illinois prisons bursting following end of early release program

Ill prisons

I just came across this notable recent piece from the Chicago Tribune, which is headlined "Illinois prison population surges to record high: Backlash over Quinn's early-release program plays role." Here is how it begins:

Hard time has gotten even harder in Illinois prisons.  The state's prison system is bursting at the seams with a record high of nearly 49,000 inmates, some 3,000 more than just a year ago.  The surge, combined with the state's multibillion-dollar budget crisis, has led to conditions that watchdog groups and veteran correctional officers say they haven't seen since a population crisis in the 1980s prompted the state to build three new prisons.

Confronted with putting more offenders in the same amount of space, administrators are doubling up every available cell.  As many as four inmates are bunked in slightly larger cells intended for two handicapped prisoners.  At the intake facility at Stateville near Joliet, incoming inmates regularly sleep on cots in a gymnasium or prison hospital.

Guards say overcrowding provides fewer disciplinary options — some prisons have been pressed into holding problem inmates in "segregation" in the same areas as regular inmates.  Overcrowding also leads to more inmate assaults on staff, guards say.

With the Illinois Department of Corrections about $95 million behind on its bills, many prison vendors haven't been paid for months.  In some cases, fed-up contractors have stopped extending credit to prisons, causing shortages that have led wardens to barter among themselves to stay stocked with essential items like paper goods and soap.

It's a marked change for Illinois, which a year ago saw its prison population drop, a trend seen in about half of the country as cash-strapped states looked to alternatives to incarceration to reduce spending, according to a Pew Center report.

Three years ago, thinking that the number of inmates statewide would stabilize or even fall, prison officials in Illinois considered closing Vandalia Correctional Center to cut costs. But in just the last year, the population at the downstate minimum-security prison nearly doubled, rising to 1,700 this fall from 950 last November.  Now, nearly 100 inmates sleep dormitory-style in a basement area previously closed off by prison officials, said Russ Stunkel, president of the union representing staff at Vandalia.  The bunks are only about 2 feet apart — rear end to elbow, as he put it.  "We're beyond our capacity, and I don't think we can handle any more," Stunkel said.

The reason for the rising numbers of inmates over the last year has nothing to do with more offenders entering the system — it has to do with fewer getting out as the result of a backlash against a policy change by Gov. Pat Quinn that allowed the early release of about 1,700 inmates over four months.

Under fire by an opponent in a heated primary fight, Quinn in January suspended the controversial program, called Meritorious Good Time Push, after news media reports that some prisoners sentenced to short terms of incarceration were freed after as little as a few days in state prison under the program.  At the same time, Quinn also suspended the state's regular Meritorious Good Time program, which had been in place for three decades and reduced the prison time of nearly two-thirds of the state's inmates by an average of a few months.

As a result, the prison population began rising immediately and has gone up every month since, reaching a peak of 48,731 last week.

November 24, 2010 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (12) | TrackBack

Student note about retroactive application of 2007 guideline crack amendments

I just saw via SSRN this notable new student note forthcoming in the Michigan Law Review, which is titled "Falling Through the Crack: How Courts Have Struggled to Apply the Crack Amendment to 'Nominal Career' and 'Plea Bargain' Defendants."  Here is the abstract:

In 2007, after a decade of debate, the Federal Sentencing Commission instituted an amendment that decreased the sentences of some defendants who had been convicted of offenses involving crack cocaine.  A few months later, the Sentencing Commission passed another amendment that rendered this decrease in sentence retroactive.  Nearly three years after the passage and retroactive application of the Crack Amendment, however, two separate circuit splits have emerged as courts have struggled to uniformly interpret and apply the Sentencing Commission’s directives.  The first circuit split emerged in regards to the eligibility of a subset of "career offenders" to the benefits of the retroactive application of the Crack Amendment.  The second circuit split emerged in regards to whether a subset of defendants who plead guilty to crack offenses pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) prior to the passage of the Crack Amendment are eligible to receive the benefits of its retroactive application.

This Note first argues that the language of the applicable statutes and policy statements and specific actions taken by the Federal Sentencing Commission indicate that the subset of "career offenders" in the first circuit split are not eligible for a subsequent reduction in sentence pursuant to the Crack Amendment.  This Note then argues, however, that the lack of explicit directives from the Sentencing Commission with regards to the “plea bargain” defendants in the second circuit split indicates that these defendants are eligible to receive the benefits of the retroactive application of the Crack Amendment.  Because the Sentencing Commission instituted and rendered retroactive the Crack Amendment to decrease the disparity in sentence between defendants convicted of crack and powder cocaine offenses, it would be contrary to the motive of the Amendment to exclude these defendants from its benefits.

November 24, 2010 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

NYTimes op-ed assailing Obama's pathetic pardon practices

George Lardner has this effective op-ed in today's New York Times, which is headlined "No Country for Second Chances."  Here are excerpts:

If by tomorrow he pardons no one but turkeys, President Obama will have the most sluggish record in this area of any American president except George W. Bush.  He’ll have outdone George Washington, who granted a pardon after 669 days.  And he will also have outlasted Bill Clinton, who took three days longer than Washington to grant his first pardons.  If Mr. Obama waits until Christmas Eve, he will make even his immediate predecessor, who waited until Dec. 23, 2002, seem more generous.

Last month, President Obama turned down 605 requests for commutations — from prisoners who wanted their sentences shortened — and 71 for pardons.

It’s difficult to understand why the president has been so unwilling to grant any clemency. As someone who has taught constitutional law, he knows that the founders gave him, and him alone, the power “to grant reprieves and pardons for offenses against the United States except in cases of impeachment.”  It is likely that he also knows that a disproportionate number of federal prisoners are black, that mandatory sentencing guidelines have left many of them with excessive sentences and that at least a few of them deserve clemency, whether they’ve asked for it or not.

The president has not only the power but also the responsibility to grant clemency when it is warranted.  A pardon can help a worthy former prisoner qualify for a job or a license. But mainly it restores the person’s civil rights, including the right to vote.

What could be holding up Mr. Obama?  There is no question that the federal pardon process is flawed.  It has been handled by a tiny staff in the Justice Department’s office of the pardon attorney, which has worked for years in a climate of official hostility to any grants of clemency.  (As Samuel Morison, a lawyer who worked in the pardon attorney’s office, recently wrote, the view inside the Justice Department is that the pardon attorney should mainly “defend the department’s prosecutorial prerogatives.”)  Recommendations for a pardon or a commutation require a great deal of investigation; in most cases, the pardon attorney’s easiest course is to advise that the president say no.

Under Bill Clinton and George W. Bush together, the Justice Department received more than 14,000 petitions for commutations, but recommended only 13 to the White House. The current backlog of petitions for both commutations and pardons is tremendous, close to 4,000.

During President Obama’s first year in office, Gregory Craig, who was then White House counsel, recognized that the system wasn’t working.  He talked with Justice Department officials about establishing a bipartisan commission or some quasi-independent office that would take over the pardon recommendations from the Justice Department.  Mr. Craig’s ideas met with little enthusiasm.

The White House has tried to explain the current foot-dragging by saying that the president has asked for an updated set of standards for granting clemency.  While improvements could be made, the truth is that the standards are time-tested — and fine, at least, for handling most petitions.  President Obama needs only to do his job.

Some older and newer related posts:

November 24, 2010 in Clemency and Pardons, Who Sentences? | Permalink | Comments (10) | TrackBack

November 23, 2010

"Pro-Prosecution Judges: 'Tough on Crime', Soft on Strategy, Ripe for Disqualification"

The title of this post is the title of this interesting new piece available via SSRN by Keith Swisher.  I have been told that this article has been "adored by every criminal defender, public or private, who has happened to read it," and this abstract helps explain why:

In this Article, I take the most extensive look to date at pro-prosecution judges and ultimately advance the following, slightly scandalous claim: Particularly in our post-Caperton, political-realist world, “tough on crime” elective judges should recuse themselves from all criminal cases. The contextual parts to this claim are, in the main, a threefold description: (i) the "groundbreaking" Caperton v. A.T. Massey Coal decision, its predecessors, and its progeny; (ii) the judicial ethics of disqualification; and (iii) empirical and anecdotal evidence of pro-prosecution (commonly called "tough on crime") campaigns and attendant electoral pressures.  Building on this description and the work of empiricists, this Article bridges the gap between these tough-on-crime campaign promises and subsequent tough-on-crime adjudications.  And in the final analysis, the thesis -- namely, that tough-on-crime judges should recuse themselves in most, and probably all, criminal cases in light of personal and systemic biases -- is corroborated not just by Supreme Court reasoning and language, but even more importantly (at least from my perspective as an ethics professor), by the rules of judicial ethics.  Thus, pro-prosecution judges and their not-too-sophisticated message -- "me tough on crime, you soft on crime" -- should cease and desist or be ceased and desisted.

Part I briefly describes elective judicial selection systems and thoroughly describes "tough-on-crime" judges, their messages, and their motivations.  Part II, the core of the analysis, runs tough-on-crime judges through the constitutional, ethical, and other-legal frameworks of disqualification.  All of these frameworks -- some four or five different legal and ethical barriers, depending on one's jurisprudential view -- ultimately lead to the same place, mandatory disqualification. Part III critically appraises elective systems, the theoretical and economical costs that those systems impose on judges and litigants, and the alternatives, including broadly or narrowly targeted disqualification, public financing, and forced silence.  By the Conclusion, the analysis has pointed strongly toward a broad-based, mandatory-disqualification remedy.

November 23, 2010 in Who Sentences? | Permalink | Comments (13) | TrackBack

Federal district judges approves Oklahoma's use of animal drug for execution

As detailed in this AFP piece, which is headlined "US court okays use of animal drug for human executions," a federal district judge yesterday "approved a drug normally used to euthanize animals for use in capital punishment in Oklahoma, clearing the way for executions held up due to shortage of a key anesthetic." Here's more:

Pentobarbital will induce a coma whose "likely outcome is the suppression of respiratory and central nervous system activity to the point that death will result within a short time after injection of the chemical," said Judge Stephen Friot of the US District Court for western Oklahoma. "The likelihood of any other outcome of the intravenous injection of 5,000 milligrams of pentobarbital is effectively nil."

A shortage of sodium thiopental -- the first and most crucial of three drugs used in lethal injections -- prompted Oklahoma to seek court approval for pentobarbital as a substitute. The only US pharmaceutical company that manufactures sodium thiopental, Hospira, is out of stock and will not be able to resume production until early 2011.

Some states like Texas have enough of the drug to press ahead with their death row schedules, but others like Kentucky have been forced to put executions on hold.

Oklahoma conducted an execution on October 14 after obtaining a dose of sodium thiopental from neighboring Arkansas. And Arizona executed a death row inmate last month after importing the anesthetic from an undisclosed foreign manufacturer authorized by the US Supreme Court.

Some related posts:

November 23, 2010 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (6) | TrackBack

Former NC Governor to cop a state plea to end federal investigation

This article from North Carolina, which is headlined "Easley agrees to plea deal," reports on an expected guilty plea from a former NC Governor that has interesting federalism (and honest services fraud) dynamics. Here are the basics:

Former Gov. Mike Easley has agreed to a plea deal to end the long-running state and federal investigations into his actions while he was in office.  A hearing in the case has been set for noon today at the Wake County Courthouse, according to a statement from Judge Donald W. Stephens.  Any deal could still fall apart because Easley or prosecutors could change their minds.  And a judge must accept any deal.

Officials would not comment publicly, but multiple sources told The News & Observer that Easley, a Democrat who served two terms each as North Carolina's governor and attorney general, had agreed to a deal with prosecutors.  Easley's attorney, Joseph Cheshire V of Raleigh, declined to comment on what will happen at the scheduled hearing....

The plea to a felony would be entered in state court.  As part of the deal, a wide-ranging federal investigation that has stretched for nearly two years would end without any charges, the sources said.  If today's hearing leads to a conviction, Easley would be the first governor in North Carolina's history to be convicted in court of a crime related to his official service....

Under sentencing guidelines, Easley is unlikely to receive an active prison sentence.  He would face a possible fine.  And he could also lose his license to practice law.

Easley, 60, has been under the eye of state and federal investigators since early last year, when The News & Observer reported on his acceptance of two dozen free flights on private aircraft and not disclosing them on campaign reports or state ethics forms....

Among other concerns: Easley did not disclose receiving a $137,000 discount on a waterfront lot in Carteret County; he accepted free golf dues valued at roughly $50,000; he helped create a high-paying job for his wife, Mary, at N.C. State University; and that he used campaign money to fix his home in Raleigh but did not account for it in public disclosures.

The State Board of Elections heard testimony in October 2009 about Easley's flights, his son's use of a free vehicle for six years and Campbell's story -- disputed by Easley -- that the governor directed him to file false invoices to hide the campaign's payment for $11,000 in home repairs.

This case sounds like a classic foundation for an honest services fraud prosecution in the federal system; I wonder if the Supreme Court's recent Skilling ruling may have convinced federal authorities that getting a criminal conviction in state court was a more efficient and effective way to resolve this matter.  Relatedly, though I am not sure if a state plea deal to resolve state charges can formally prevent the feds from bringing a separate federal prosecution, I suspect the feds will be happy to close its file and move on if and when Easley is subject to state justice.

November 23, 2010 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Former congressman Duke Cunningham lamenting decision to plead guilty for sentencing break

As reported in this San Diego Union Tribune article, "Randy 'Duke' Cunningham, the disgraced former congressman from Rancho Santa Fe, said in an interview from prison that he regrets pleading guilty almost five years ago to conspiracy and tax evasion charges, and that he did so on the advice of his lawyers when he was physically and emotionally weakened." Here is more:

Prosecutors said he accepted millions in money, gifts, meals and trips from defense contractors Brent Wilkes and Mitchell Wade.  Before admitting guilt, Cunningham — like all defendants — had to say he was doing so voluntarily and was not under duress.

But the former congressman now says that at the time he was physically weak from having dropped close to 100 pounds from cancer treatments and other maladies.  He said he had not eaten for two weeks when his lawyers came to him with the proposed 33-page plea agreement.

He said he balked at first, but lawyers Mark Holscher and K. Lee Blalack told him if he challenged the charges it would cost him millions to fight the case, and he would risk spending the rest of his life in prison.

“Was I knowingly and intelligently signing that thing? I don’t think so in the condition I was in,” he said last week.  “But I trusted my (lawyers).”  He said he did so because he believed and was told he would get a year or two off of his prison term.

Neither Holscher nor Blalack represents Cunningham anymore, and neither could be reached for comment.  When he was sentenced in 2006, Burns gave Cunningham credit for cooperating with prosecutors.  But since then he has failed to a get a further sentence reduction for his help in prosecuting Wilkes.

Cunningham, speaking in a strong and resonant voice, reiterated claims he recently made in a declaration filed in support of a new trial for Wilkes, the former Poway defense contractor convicted of bribing the congressman to get him to use his influence to steer government contracts to Wilkes.

In that declaration and in last week’s interview, Cunningham said Wilkes never bribed him. He also said prosecutors with the U.S. Attorney’s Office in San Diego did not put him on the stand in Wilkes’ trial because his testimony would undermine parts of their case.

Those statements contradict earlier court filings from Cunningham when he was seeking time off for cooperating with prosecutors. In those filings from January, he referred to the “bribes” that Wilkes gave him through a third man, New York financier Thomas Kontogiannis, to pay off mortgages for Cunningham’s Rancho Santa Fe mansion....

He said his time in prison has made him an emerging advocate for prison reform. “I didn’t know jack weenie about what people were going through in here,” he said.

When he served in Congress from 1991 to 2005, Cunningham was a reliable vote for harsher sentencing laws and stricter punishment, but now he says he would do things differently.  For example, votes that made penalties for crack cocaine harsher than for powder cocaine were wrong, he said.

Cunningham said he wants to become a more public advocate for prison and prosecutorial reform.  He said he has written members of Congress volunteering his help — and said that Democratic congressmen will probably be more supportive of his efforts than his former Republican colleagues.

November 23, 2010 in Celebrity sentencings, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6) | TrackBack

November 22, 2010

'Theorizing Mental Health Courts"

The title of this post is the title of this new article by E. Lea Johnston that is now available via SSRN. Here is the abstract:

To date, no scholarly article has analyzed the theoretical basis of mental health courts, which currently exist in forty-three states.  This article examines the two utilitarian justifications proposed by mental health court advocates -- therapeutic jurisprudence and therapeutic rehabilitation -- and finds both insufficient.  Therapeutic jurisprudence is inadequate to justify mental health courts because of its inability, by definition, to resolve significant normative conflict. In essence, mental health courts express values fundamentally at odds with those underlying the traditional criminal justice system. Furthermore, the ability of therapeutic rehabilitation to offer sufficient theoretical grounding depends on the validity of the assumed link between mental illness and crime.  In particular, mental health courts view participants’ criminal behavior as symptomatic of their mental illnesses and insist that untreated mental illness serves as a major driver of recidivism.  Drawing upon social science research, this article demonstrates that these relationships may not hold for a substantial proportion of individuals served by mental health courts.  The article concludes by identifying alternative theories that may justify these courts.

November 22, 2010 in Offender Characteristics, Who Sentences? | Permalink | Comments (3) | TrackBack

Effective coverage of restitution realities in Philadelphia courts

Yesterday's Philadelphia Inquirer had this notable piece about the limited payment of restitution punishments in its local courts.  The piece was headlined "Victim restitution lags badly in Phila." and here is an excerpt:

Convicted criminals in the city owe hundreds of millions of dollars in fines, fees, and restitution to their victims, but the courts have not found a way to get them to pay up.  Philadelphia defendants are supposed to be paying out $144 million a year, court officials say.  At last count, they were paying only $10 million yearly. That works out to 7 cents on the dollar.

Of the 224,000 convicted defendants on payment plans, 206,000 are behind. Almost all are months in arrears.  And Philadelphia's court system trails far behind the rest of the state in getting defendants to pay up, comparative data show.

Under a statewide rule, when the guilty make payments, court systems must first see that money goes to the state's victim-compensation fund and victim-services programs.  The charges are modest -- $35 per offender to the compensation fund and $25 to victim services.  Yet last year, Philadelphia ranked last among Pennsylvania's 67 counties in support for the services program and was second to last for the compensation fund.

Financial collections have not been a strong suit for the city courts.  As The Inquirer has reported, about 210,000 fugitives owe a staggering $1 billion in forfeited bail. Nor does the system simply garnishee the pay of offenders, though that's permitted under Pennsylvania law. Court officials say they are considering doing that.

For victims, it all adds up to frustration. "It's been 10 years, and I've collected $147," said Helen Sztenderowicz, 53, a dental hygienist who now lives in Montgomery County. "He robbed us. He owes us this money, and he's not paying."

Increasingly, judges across the United States are demanding that criminals be held accountable in a very concrete way -- by putting up cash to compensate their victims.... Since 2006, Philadelphia judges have ordered 8,115 offenders to pay money to almost 11,000 victims, records show.  But many of those victims received nothing. Figures for earlier years aren't available.  Despite the woes in Philadelphia, experts and officials elsewhere say that offenders can be made to pay.

A pioneering New Jersey program found that if judges were willing to threaten to imprison defendants for nonpayment, offenders indeed made "significantly more and larger payments," according to a report on the effort by David Weisburd, a University of Maryland criminologist.

David C. Lawrence, the Philadelphia courts administrator, said his staff was working on innovative efforts to collect money and had already begun to go after the $1 billion in bail money.  Along with garnisheeing pay, the courts are eyeing a plan to revoke the driver's licenses of those who don't pay.  "We are taking unprecedented steps to aggressively pursue financial obligations owed by offenders," Lawrence said.

At the same time, Lawrence said, dunning the Philadelphia offender population is no easy matter.  Of the 48,000 men and women on probation or parole, he noted, 69 percent are jobless.

Read more: http://www.philly.com/inquirer/front_page/20101121_Victim_restitution_lags_badly_in_Phila_.html#ixzz161tikQmn Watch sports videos you won't find anywhere else

November 22, 2010 in Criminal Sentences Alternatives, Data on sentencing, Procedure and Proof at Sentencing | Permalink | Comments (8) | TrackBack

"Courts videoconference defendants to save money"

The title of this post is the headline of this interesting piece from today's USA Today.  Here are excerpts:

Everyone is entitled to his or her day in court, but a growing number of people get it without setting foot in a courtroom.  Courts across the country are embracing videoconferencing as a way for defendants to appear before a judge without leaving prison or jail, according to a recent survey by the National Center for State Courts.

As state and local governments continue to see their budgets squeezed, they are increasingly looking for ways to save money through technology, says Kannan Sreedhar, managing director of Verizon Connected Healthcare Solutions.  When his company demonstrated its Telejustice products at a meeting of the Association of Public-Safety Communications Officials in Houston in August, he says, he was stunned by the level of interest. "We were inundated with people who wanted to talk to us," Sreedhar says.

Sreedhar says the newer technology is based on Internet protocols offering higher resolution than previous generations, and it's easier to operate.  The newest wave: mobile video units that can be used in hospital rooms, mental health facilities and other venues to arraign people too sick to appear in court....

When the National Center for State Courts surveyed court systems in September, 100 of the 162 that responded were already using videoconferencing for some criminal matters, according to the study results published on the center's website.

Pennsylvania estimates it has saved $31 million, and Utah courts have reduced their transportation costs by one-third, according to the survey.  The Maryland Department of Public Safety and Correctional Services began using videoconferencing earlier this year for inmates who appeal grievance hearings to a circuit court.  "We really think it's going to be a tremendous public-safety improvement and considerable cost savings," says spokesman Mark Vernarelli.

The criminal-justice section of the American Bar Association hasn't taken a formal position on videoconferencing for hearings such as arraignments but discourages it in trials, says spokeswoman Stephanie Ortbals-Tibbs.

As I have stated in a number of prior posts on related technological developments, the question is not whether new technologies with significantly change our criminal justice system, but rather when and how and by how much.

A few posts covering various tech issues:

November 22, 2010 in Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (2) | TrackBack

Reviewing the limited impact of Graham in Florida

Thanks to How Appealing, I just saw this lengthy article from the Sarasota Herald-Tribune, which is headlined "Juvenile offenders still get near-life terms." Here is how the piece gets started:

More than six months after the U.S. Supreme Court ruled that Florida's practice of sending juveniles to prison for the rest of their lives for non-murder crimes was unconstitutional, not a single former juvenile sentenced in such cases has found much relief.

Instead, Florida courts, in several high-profile cases are re-sentencing the juveniles to new terms that still amount to life sentences.  And Gov. Charlie Crist and the state Cabinet are now poised to reject the clemency case of a 15-year-old who received four life sentences for armed robberies in the Tampa Bay area.

In Crist's last Clemency Board meeting, set for Dec. 9, lawyers are asking state officials to consider the case of Kenneth Young, who is representative of a group of 116 Florida juveniles who were sentenced to spend the rest of their lives in prison for non-murder crimes.  So far, that appeal has gone nowhere.

Crist's apparent shunning of Young's request comes at a time when the Florida governor is attracting national headlines for his pledge to seek another pardon, for Jim Morrison, of the rock group the Doors, who has been dead for 39 years.  While Crist has given numerous interviews about the Morrison case –- saying “my heart bleeds” for Morrison's family –- the Young case has attracted almost no attention from the governor or other state officials, even after Florida's judicial process was condemned by the U.S. Supreme Court.

Legal experts say there are at least 116 prisoners in Florida like Young –- sentenced for non-murder crimes committed when they were juveniles to life in prison without chance for parole.  Florida has sentenced far more juveniles to such sentences than all other states combined.

In May, the Supreme Court ruled that such sentences violate the Eighth Amendment ban on cruel and unusual punishment.  But, as Young's case illustrates, Florida has done little to right that wrong.

November 22, 2010 in Assessing Graham and its aftermath, Clemency and Pardons, Who Sentences? | Permalink | Comments (0) | TrackBack