December 18, 2010
The title of this post is the title of this new scholarship from Emily Hughes available via SSRN. Here is the abstract:
The Innocence Movement has unwittingly participated in the construction of a binary between “actual” and “legal” innocence. Because the Innocence Movement has focused on defendants who did not commit the actions underlying their convictions, courts, lawyers, and the larger society have come to believe that a person is wrongly convicted of a crime only if the person is “actually” innocent. This perception overlooks the fact that a person can be wrongly convicted if their constitutional rights were violated in the process of obtaining the conviction. As such, the Innocence Movement devalues “legal” innocence and the constitutional values that underlie a broader conception of innocence.
In order to affirm the importance of those constitutional values, this Article argues for the need to reclaim an understanding of innocence unmodified by qualifiers such as “actual” or “legal.” Part I explains how the concept of “actual” innocence has played a pivotal role in the development of the Innocence Movement. Part II examines innocence unmodified in the context of trials. It explains that one reason to protect innocence unmodified is because the Supreme Court has not yet held that “actual” innocence alone is enough to reverse a wrongful conviction; constitutional claims underlying an “actual” innocence claim, working together, are necessary to achieve justice. Part III explores innocence unmodified in the context of guilty pleas. It reveals the degree to which the Court has itself reduced innocence to a binary — prioritizing “actual” innocence over fundamental constitutional protections for all people, including people who might be wrongly convicted if the courts do not safeguard their constitutional rights. The Article concludes that a modified conception of innocence dilutes the constitutional core that protects us all — innocent or guilty alike.
December 17, 2010
"The Worst of the Worst: Supermax Torture in America"
The title of this post is the headline of this new piece from the Boston Review authored by investigative journalist Lance Tapley. The piece provides an important and disturbing view of supermax confinement in the United States. Here are excerpts from a must-read:
James’s story [of being beaten during cell 'extractions' he’d endured at the hands of the supermax-unit guards at the Maine State Prison] illustrates an irony in the negative reaction of many Americans to the mistreatment of “war on terrorism” prisoners at Guantánamo. To little public outcry, tens of thousands of American citizens are being held in equivalent or worse conditions in this country’s super-harsh, super-maximum security, solitary-confinement prisons, or in comparable units of traditional prisons. The Obama administration — somewhat unsteadily — plans to shut down the Guantánamo detention center and ship its inmates to one or more supermaxes in the United States, as though this would mark a substantive change. In the supermaxes inmates suffer weeks, months, years, or even decades of mind-destroying isolation, usually without meaningful recourse to challenge the conditions of their captivity. Prisoners may be regularly beaten in cell extractions, and they receive meager health services. The isolation frequently leads to insane behavior including self-injury and suicide attempts.
In 2004, state-run supermaxes in 44 states held about 25,000 people, according to Daniel Mears, a Florida State University criminologist who has done the most careful count. Mears told me his number was conservative. In addition the federal system has a big supermax in Colorado, ADX Florence, and a total of about 11,000 inmates in solitary in all its lockups, according to the Bureau of Prisons. Some researchers peg the state and federal supermax total as high as a hundred thousand; their studies sometimes include more broadly defined “control units” — for example, those in which men spend all day in a cell with another prisoner. (Nationally, 91 percent of prison and jail inmates are men, so overwhelmingly men fill the supermaxes. Women also are kept in supermax conditions, but apparently no one has estimated how many.) Then there are the county and city jails, the most sizable of which have large solitary-confinement sections. Although the roughness in what prisoners call “the hole” varies from prison to prison and jail to jail, isolation is the overwhelming, defining punishment in this vast network of what critics have begun to call mass torture.
Some related older and newer posts:
Kentucky judge rejects death sentence for child killer claiming life term will be a "hell more suited to you"
A helpful reader alerted me to this remarkable new sentencing story from Kentucky in which a sentence judge rejected the prosecutor's death sentence request for a child killer claiming that such a sentence would be too easy for the defendant. Here are the details:
Saying the death penalty was not a harsh enough punishment, a judge ordered for Cecil New II to serve the rest of his life in prison, surrounded by “bigger, meaner men who have nothing to lose.”
“He will fear for his life every day,” Judge Judith McDonald-Burkman told the family of 4-year-old Ivan Aguilar-Cano, who disappeared while playing outside his home near Churchill Downs in 2007 and was murdered by New. “He will wish this court had put him on death row.”
Since a November hearing in which prosecutors asked that New be sentenced to death, McDonald-Burkman said she had investigated the differences between the life of a death-row inmate and one serving a life sentence. On death row, she said, inmates are segregated from other prisoners and can have meals sent to their cell without ever having to be around anyone else, and typically an execution is not scheduled for at least 20 years. With the life sentence, New must congregate with other prisoners and “is never truly isolated.”
“Death is undoubtedly justified for you,” the judge told New. “There’s not one cell in your body, Cecil New, that can be rehabilitated, not one. But is a death sentence justice?” The unusually frank language from McDonald-Burkman included scenarios on how New’s life would play out in the general population. “Death is easy,” she said. “Living outside of death row, in general population in fear of prison justice every day is a hell more suited to you, Mr. New, than living under the protective guise of death row.”
McDonald-Burkman reiterated that this was not a “sentence of mercy, not an act of mercy, not an anti-death penalty stance” but the harshest punishment she could hand down.... The judge also addressed Ivan’s family directly, saying she hoped they would find comfort knowing that the only contact New would have would be with bigger, meaner inmates and that “he will be the smaller, weaker, more defenseless.”
Ivan’s family left through a back hallway, away from the media, but activist Christopher 2X, spoke for the family, saying they understood the judge’s decision but felt that “a life for a life should be the appropriate penalty.”...
On Oct. 14, the day before his trial, New surprised many by pleading guilty to charges of murder, kidnapping, tampering with physical evidence and unlawful transaction with a minor. However, New did not negotiate a plea bargain and entered what is known as an open plea, which made him eligible to receive the death penalty and waiving his right to an appeal.
Assistant Commonwealth's Attorney Jon Heck had asked McDonald-Burkman on Nov. 16 to give New the death penalty, saying he deserved to die for his actions. But Jay Lambert, New's attorney, argued that New's life should be spared because of a horrific childhood that, at least in part, helped make him into who he is.
After the sentencing, Heck said he agreed with the judge’s reasoning that the life sentence was the greatest penalty. “He will serve out his life a tormented man,” Heck said. “And I think he deserves that.”
It is not uncommon to hear death penalty abolitionists claim that a life sentence is in fact worse than a sentence of death, but I cannot recall a case in which a jurist has expressly relied on such a claim in order to reject a prosecutorial request for a death sentence. Intriguingly, though the victim's family seems displeased with this result, this press report suggests that the prosecution agrees with the sentencing judge here and thus likely will not seek an appeal (and I am not even sure if applicable state law would permit an appeal in any event).
"Festivus for the rest of us, O.C. Jail style"
The title of this post is the headline of this awesome holiday-season article from the Orange County Register about how a inmate managed to talk his way into a healthier meal for his jail stay. Here are the details:
Festivus may only come around only come around once a year — more often if you watch "Seinfeld" reruns — but longtime county inmate Malcolm Alarmo King was able to celebrate it three times a day while locked up at the Theo Lacy jail in Orange.
King’s quest for a healthier eating option while behind bars ended with a county lawyer forced to research the origin of Festivus and its traditions and a Superior Court judge recognizing the holiday — which lodged its place in pop culture on an episode of "Seinfeld" — as a legitimate religion.
The menu selection at Theo Lacy apparently didn’t please King, 38, when he was booked into the jail on drug charges in April. They serve salami there. And that didn’t quite fit in with the fitness buff/gym clothes model’s lifestyle. So King, who is also suspected of being in the country illegally from Liberia, asked for kosher meals....
Judge Derek G. Johnson signed off on the high-protein double-portion kosher meals for King. That didn't sit well with the Sheriff's Department — which pays for the food. Kosher meals are more expensive than the regular jail fare — and are reserved for those with a religious need....
When sentencing day came, King pleaded guilty to the sale or transport of a controlled substance — a felony. Two other felonies were thrown out. But King still wanted his non-salami meals.
Judge Johnson pulled King's lawyer and the prosecutor aside and said he needed a religion to put down on the order to make it stick, explained [King's lawyer Fred] Thiagarajah. “I said Festivus,” said Thiagarajah. The order was granted — three non-salami meals a day.
County Counsel researched Festivus, arguing the holiday was the creation of writer Dan O’Keefe to celebrate his first date with his wife in 1966. The holiday was introduced to the world by his son Daniel, a screenwriter for "Seinfeld," who wrote it into the show. Seinfeld celebrated Festivus with an aluminum “Festivus pole” instead of a tree and traditions such as the “Airing of Grievances” and “Feats of Strength.” Easily explainable events were “Festivus miracles.”...
King was released from county jail Oct. 5 and turned over to Immigration and Customs Enforcement. He is awaiting deportation, according to ICE spokeswoman Lori Haley. No word if Festivus celebrations are allowed in ICE detention.
Iowa Supreme Court deals with Graham's prohibition of juve LWOP for nonhomicide
A helpful reader altered me to a decision today by the Iowa Supreme Court dealing with a juvenile LWOP sentence that is now clearly unconstitutional in the wake of the Supreme Court's Eighth Amendment ruling in Graham v. Florida. The ruling in Bonilla v. Iowa can be downloaded below, and here is how it starts:
Julio Bonilla was convicted of kidnapping in the first degree in adult court for an offense committed at the age of sixteen. He was sentenced to mandatory life in prison without the possibility of parole pursuant to the Iowa Code. Under the recent United States Supreme Court decision Graham v. Florida, ___ U.S. ___, ____, 130 S. Ct. 2011, 2033–34, 176 L. Ed. 2d 825, 848–50 (2010), this sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment of the Federal Constitution. The clauses of Iowa Code sections 902.1 and 906.5 (2003) that make Bonilla ineligible for parole are unconstitutional as applied to Bonilla. These clauses are also severable. Therefore, Bonilla‟s sentence must be adjusted to life in prison with the possibility of parole.
A mere six-month jail sentence for 19th drunk driving conviction?!?!?
As detailed in this local article, which is headlined "19th DUI gets Santa Rosa man 6-month sentence," an inclination to treat drunk drivers leniently can continue even well after a defendant has more than a dozen convictions for this dangerous behavior. Here are the notable details (which actually highlight for me why technology rather than longer prison terms should be the focal point of reducing the dangers and harms of drunk driving):
A Santa Rosa man with 19 drunken driving convictions was spared a prison term Thursday for his latest offense, prompting an outcry from prosecutors.
William Rylan Beall, 65, whose record of drunken driving stretches back 44 years, was sentenced to six months in jail by visiting Alameda County Judge Julie Conger. But he could end up serving it in an alcohol treatment facility if bed space becomes available.
That he will be free until Jan. 21 and was not given a prison sentence provoked an angry reaction from Sonoma County Chief Deputy Prosecutor Bill Brockley. “It’s putting our community at risk. He’s proven he’s a danger and can’t conform his behavior to societal norms,” Brockley said. “He can’t stop drinking and when he drinks, he drives. He puts your family, my family, and all families at risk.”
Prosecutors had sought a two-year prison term as recommended by the county probation department.... In recommending the mid-term prison sentence, the probation department took into account Beall’s clean record for the past eight years.
Until his latest drunken driving offense in July, Beall, a real estate agent who lives in Oakmont, had stayed out of trouble since 2002. But his finances and health began to deteriorate and he relapsed, said his attorney, Steve Weiss. “He has been a strong participant in AA the last eight years,” said Weiss. “Unfortunately, he reverted to very old habits.”
“The judge focused on a number of things — the eight years he had been sober, his health and the best way to protect the community, which she felt was to keep him on probation for five years — keep him under close supervision and give him a six-month residential treatment program to sharpen his sobriety skills.”...
Beall’s record of alcohol-related driving convictions began in 1966, according to a pre-sentencing report. He was convicted of drunken driving seven times in the 1970s, five times in the 1980s, four times in the 1990s and again in 2002, prior to his most recent conviction.
Three of the convictions involved traffic collisions. In one case, he was seen running a red light at approximately 50 to 60 miles per hour. “It is extraordinarily fortunate the defendant has never seriously injured anyone or taken a life, given his disregard for the law and the well-being of others,” Deputy Probation Officer Sierra Grohl wrote in her report.
Beall was given probation six times, required to attend frequent AA meetings and comply with Antabuse drug therapy, but he continued to drink and drive. He was sent to prison for two years in 1998.
In addition to his 19 prior drunken driving convictions, there were six additional arrests that did not lead to convictions, according to the pre-sentencing report. His blood alcohol in 2002 registered .22, almost three times the level at which a person is presumed too drunk to drive.... The probation officer noted “it is plausible he truly was sober the past eight years or he would have likely appeared before the court much sooner.”
Weiss noted that early on the district attorney’s office had offered his client a 16-month jail term and with good behavior, he could have been out in half that time. But Brockley said Beall rejected the offer and another judge refused to consider a non-prison sentence. “A person with this type of alcohol history and arrest record should be going back to state prison,” Brockley said.
Though I generally agree with the prosecutor's view here that such an extended criminal history justifies another trip to state prison, I also think this case spotlights the need to use ignition-locks and other forms of technology to try to prevent chronic offenders from ever being able to start a car with any alcohol in their system.
Lots worth reading at Pardon Power during this clemency season
P.S. Ruckman's blog Pardon Power is always worth regular reading, and this week he has a series of new posts that should not be missed as we kick into the final weeks of what has become a traditional clemency season:
December 16, 2010
Oklahoma poised to complete last execution of 2010 with new drug in three-drug protocol
As reported in this new piece on CNN, it appears that Oklahoma is about to close out the year in execution by ringing in a new drug for its lethal injection protocol. Here are the basics:
An Oklahoma death row inmate will receive a drug commonly used to euthanize animals Thursday because of a nationwide shortage of sodium thiopental, the drug usually used as the sedative in its three-drug execution cocktail.
John David Duty's execution will be the last in the United States in 2010 and is believed to be the first in the country to use pentobarbital in a lethal injection. Duty was convicted and sentenced to die for strangling his 22-year-old cellmate, Curtis Wise, with shoe laces while serving three life sentences for rape, robbery and shooting with intent to kill from a 1978 conviction....
Sodium thiopental is a rapid-onset, short-acting barbiturate that causes unconsciousness. Duty's attorneys argued that pentobarbital was risky and unsafe. But an Oklahoma judge disagreed and last month approved its use in place of sodium thiopental....
Duty's execution is scheduled for 6 p.m. at the Oklahoma State Penitentiary in McAlester, Oklahoma. For his last meal, Duty has requested a double cheeseburger with mayonnaise, a foot-long cheese Coney dog with mustard and extra onions, cherry limeade and a banana shake from Sonic.
I excerpted the details concerning this defendant's last meal because I always find it interesting when a the request includes a particular item from a particular restaurant. And I have always wondered if officials place cost constraints on such requests, or if a condemned man might be able to order for his last meal a serving of every item from the menu of the most expensive restaurant in the state.
UPDATE: As detailed in this Reuters piece, the Oklahoma execution using pentobarbital went off without a hitch. In addition, as this AP article notes, this "sedative Oklahoma used to execute an inmate that is commonly used to euthanize animals could become more popular ... because of a nationwide shortage of a key ingredient in several states' lethal injection formulas."
New ACS issue brief urges " diverting and reclassifying misdemeanors" to save big bucks
As detailed in this ACS blog post, there is a new paper from the American Constitution Society's series on the indigent defense system. This new "issue brief" is authored by Robert Boruchowitz and it is titled "Diverting and Reclassifying Misdemeanors Could Save $1 Billion per Year: Reducing the Need For and Cost of Appointed Counsel." Here are excerpts from the paper's introduction:
There are approximately ten million misdemeanor cases filed each year in state and municipal courts in the United States. In some courts, the combination of driving with a suspended license, possession of marijuana, and minor in possession of alcohol cases can total between 40% and 50% of the caseload. Many of those courts are overwhelmed with cases and the defenders in those courts, if they are present at all, are often overwhelmed and unprepared. The financial impact on both the defendants and the local governments is significant....
Right now, taxpayers expend on average $80 per inmate per day to lock up people accused of things like turnstile jumping, fish and game violations, minor in possession of alcohol, dog leash violations, driving with a suspended license, and feeding the homeless.
By diverting or reclassifying these offenses as non-criminal violations, local and state governments could save hundreds of millions, perhaps more than $1 billion per year....
This Issue Brief will discuss successful diversion programs from Washington State to Florida that have saved money by removing misdemeanor cases from the court system and have helped people to get their licenses back and to avoid the direct and collateral consequences of criminal convictions. It will review reclassification changes such as the Massachusetts law making possession of small amounts of marijuana a violation and not a crime. It also will address how the U.S. Department of Justice could support education of criminal justice practitioners about the benefits of diversion and reclassification efforts.
Notable Montana Supreme Court ruling on sentencing rights and procedure
As reporting in this effective local article, earlier this week the Montana Supreme Court "affirmed a one-year jail sentence for former Great Falls Mayor Gayle Morris for his role in the prostitution investigators said occurred at a bar and strip club west of Great Falls." Though the nature of the crime first caught my attention, the issues addressed by the Montana Supreme Court in this opinion provides an effective primer on various sentencing rights (and their limits).
Here is a brief accounting of the case and the ruling from the press article:
In June, Morris, who is a proprietor of the club, was sentenced to a year in jail after pleading no contest to accountability to prostitution and obstructing a peace officer. He is serving his sentence at the Cascade County jail. Morris was expecting a suspended sentence as part of a plea agreement he reached with prosecutors in which he agreed to plead no contest to misdemeanors in exchange for dropping a felony count of promoting prostitution.
However, District Judge Thomas McKittrick sentenced Morris to the maximum sentence of a year in jail. Morris appealed to the Supreme Court, claiming the sentence amounted to cruel and unusual punishment, and violated state sentencing policy.
As part of his appeal, Morris argued McKittrick illegally considered his status as a former mayor and county commissioner in the sentence. Morris also contended that he was punished for an alleged lack of remorse.
The state Supreme Court disagreed, saying the lower court provided eight valid reasons for the sentence. "Notably, the district court was influenced by the fact that Morris' previous public service indicated he should have known better," the court's ruling states. "Furthermore, when Morris signed the plea agreement, he was more than well aware of the potential maximum penalty. We conclude that the district court's sentences were not arbitrary and did not exceed the bounds of reason."
Why the orphaned sentencing argument in Tapia needs a good guardian
Adam Liptak's Sidebar column this week in the New York Times, which is headlined "Court Chooses Guardians for Orphaned Arguments," is all about the SCOTUS practice of appointing counsel to represent arguments/opinions that have been abandoned by the parties. The piece is focused on the Pepper resentencing case argued earlier this month, and the piece is especially timely because it seems the Justices will now need to appoint another party to argue another sentencing position in the newly granted Tapia case from the Ninth Circuit (previously discussed here and here).
As explained in prior posts, the Tapia case concerns whether rehabilitation needs can be used as a factor by a district judge to give a longer prison sentence. At one time, the US Justice Department had supported district judge to consideration of this factor, but in the Tapia cert briefing the SG expressed the current view of the Government that "the plain language of [18 U.S.C. § 3582(a)] prohibits considering a defendant’s rehabilitative needs as a factor in setting the duration of her prison sentence." Thus, it seems the Justices will need (and likely will appoint) special counsel to defend the view that rehabilitative needs can be a proper factor when imposing a prison sentence.
Though there is considerable force to the parties view that Congress in the Sentencing Reform Act sought to prohibit consideration of rehabilitative needs as a factor in determining the lengthy of a prison sentence, I believe there are lots and lots of importance nuances to a proper modern interpretation of § 3582(a) in light of both the Supreme Court's Booker jurisprudence and also a number of post-SRA enactments by Congress. In addition, the sentencing setting and record in Tapia also implicates a number of related issues concerning how speculative a sentencing judge can be when concluding that rehabilitative needs justify a sentencing adjustment.
Put slightly differently, the place of rehabilitative goals and needs in the modern federal sentencing system justifies careful and considerable attention, and I think it is especially important that the Justices hear from engaged advocates in Tapia about all the big theory and practice issues that the case implicates. Based on the recent record of appointed counsel in similar cases, I am confident that all the issues in Tapia will be well presented. But, given that SCOTUS rarely takes up these kind of big picture sentencing issues that can prove to be so consequential, I hope counsel and amici in Tapia take extra time to work through all the implicated issues extra thoroughly and thoughtfully.
"Hyper-Incarceration and Strategies of Disruption: Is There a Way Out?"
The title of this post is the headline of this new article by Louis Michael Seidman now available via SSRN. Here is the abstract:
This paper explores exit strategies from our policy of hyper-incarceration. On the theory that the underlying causes of the policy are firmly entrenched, it focuses instead on disrupting the political micro-processes that make the policy seem acceptable. Part One describes these micro-processes. Parts Two through Four outline three forms of politics that might disrupt them: a politics of amelioration, a politics of transformation, and a politics of accommodation. Part V assesses the available choices for what is to be done.
"GAO: Registered sex offenders finding jobs in schools"
The title of this post is the headline of this new article from USA Today, which gets started this way:
Registered sex offenders are getting jobs in schools as teachers, administrators, volunteers and contractors, despite state laws that prohibit them from contact with children, a government watchdog report says.
And school officials in some states enable misconduct to continue by ignoring red flags during hiring or by covering up the firing of sexual offenders, according to the report by the U.S. Government Accountability Office, the investigative arm of Congress.
The report, obtained by USA TODAY, is based on a review of 15 cases in 11 states over the last decade involving people with histories of sexual misconduct working in public or private schools. Of those, 11 offenders had previously targeted children, and six abused more children in their new positions.
About 35 states have laws restricting offenders from schools, and most states require criminal history checks, though specifics vary widely, the report found. Rep. George Miller, D-Calif., who requested the investigation, urged states to strengthen laws or pass a law if they don't have them.
"These children were put in this unsafe position because adults in charge of their well-being failed to do their job," says Miller, outgoing chair of the House education committee. "Parents have a right to believe that their children are safe" in schools.
An Education Department study estimates that millions of kids in kindergarten through 12th grade are victims of sexual misconduct by a school employee at some point. The GAO report also notes most sexual abuse of children goes unreported. In one study it cites, 232 child molesters admitted to molesting a total of 17,000 victims, often without ever being caught.
Top UK official calling for total drug legalization
As detailed in this article from across the pond, which is headlined, "Legalise all drugs, says former Labour Home Office minister," there is a former UK official once deeply involved in the war on drugs now urging a complete surrender. Here are the details:
Bob Ainsworth MP, who ran the Home Office's drugs policy between 2001 and 2003, will say that drug trade should be taken away from criminals and handed to doctors and pharmacists. The sale of drugs would regulated, under Mr Ainsworth's plan, with the most dangerous being proscribed by doctors.
He told The Daily Telegraph last night: "I am not a libertarian. I don't believe that you should buy heroin on street corners and get yourself zonked out. But we have to treat this as a medical problem."
In speech to MPs today he will give vent to his “long held view” that “the war on drugs has been nothing short of a disaster”. In a Westminster Hall debate in the Houses of Parliament today, Mr Ainsworth, who was in charge of drugs policy between June 2001 and June 2003, will say: “Prohibition has failed to protect us."...
Mr Ainsworth, who has represented Coventry North since 1992, will say that his time as defence secretary from June 2009 to May 2010 “showed to me that the war on drugs creates the very conditions that perpetuate the illegal trade". “My departure from the front benches gives me the freedom to express my long held view that, whilst it was put in place with the best of intentions, the war on drugs has been nothing short of a disaster.”...
He will add: “The re-legalisation of alcohol in the US after thirteen years of Prohibition was not surrender. It was a pragmatic move based on the Government’s need to retake control of the illegal trade from violent gangsters.”
December 15, 2010
Notable Cato review of modern Bill of Rights on their day
Tim Lynch has a this notable post (with losts and lots of links) at the Cato@Liberty blog under the simple heading "Bill of Rights Day." The whole post is worth checking out, and here are parts that highlight some criminal justice stories:
Since today is Bill of Rights Day, it seems like an appropriate time to pause and consider the condition of the safeguards set forth in our fundamental legal charter. Let’s consider each amendment in turn....
The Fourth Amendment says the people have the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Government officials, however, insist that they can treat airline travelers like prison inmates by conducting virtual strip searches and crotch inspections....
The Sixth Amendment says that in criminal prosecutions, the person accused shall enjoy a speedy trial, a public trial, and an impartial jury trial. Government officials, however, insist that they can punish people who want to have a trial. That is why 95% of the criminal cases never go to trial....
The Eighth Amendment prohibits cruel and unusual punishments. Government officials, however, insist that jailing people who try in ingest a life-saving drug is not cruel....
It’s a depressing snapshot, to be sure, but I submit that the Framers of the Constitution would not have been surprised by the relentless attempts by government to expand its sphere of control. The Framers themselves would often refer to written constitutions as mere “parchment barriers” or what we would describe as “paper tigers.” They nevertheless concluded that putting safeguards down on paper was better than having nothing at all. And lest we forget, that’s what millions of people around the world have — nothing at all.
Indiana Governor gives blessing to state sentencing reform proposals
As detailed in this local article, which is headlined "Daniels creating plan to limit prison population," it now seems even more likely that "changes are coming to Indiana's criminal justice system." Here is why:
Gov. Mitch Daniels announced this morning that he's endorsing a plan that would control the state's increasing prison population by ensuring prisons house only the most violent offenders.
Though details won't be released until Thursday, it seems the plan will restructure sentencing guidelines for non-violent offenses and improve programming and oversight for less dangerous offenders at the county level. The changes, which are outlined in legislation that will be presented Thursday, are projected to save the state about $1 billion in prison-related expenses.
The legislation stems from a report drafted by the Pew Center on the States and Council of State Governments Justice Center. The study found that the state's prison population grew by about 41 percent from 2000 to 2008 while the crime rate decreased slightly. The increase in Indiana's prison population is much higher than neighboring states, which all recorded increases of 13 percent or less.
About 55 percent of Indiana's increase from 2005 to 2009 came from inmates who had committed non-violent property and drug crimes, according to the study. People who committed less serious offenses also served a higher percentage of their jail sentence....
Daniels said he thinks the state can combat the problem with "smarter incarceration" and "smarter punishment."
Rep. Matt Pierce, D-Bloomington, said this morning that if Indiana doesn't find a way to stop the prison population growth, the state might reach a "crisis point" where it has to release violent offenders. Pierce chairs the Criminal Code Evaluation Commission, which will review the legislation Thursday morning, and he expects his group will support the changes.
"Right on Crime: The Conservative Case for Reform" officially launches
I am pleased to be able to blog about an amazing and very important new group put together by movement conservatives to work on criminal justice issues, Right On Crime. The group appears to be the brainchild of folks like Newt Gingrich, Grover Norquist, and Edwin Meese, who are the first three names listed on this Statement of Principles from the ROC group.
Though lots can and should be said about the what is driving this group, I view its development as a direct result of the recent election of lots of new Republican governors facing lots of overcrowded prisons and budget deficits. (I speculated on this development in a post titled When and how will state GOP leaders start cutting expensive criminal justice programming? a few days after November's election results.) Tellingly, a top item on the ROC website right now is this posttitled "Reading Material For [Ohio] Governor-Elect Kasich."
Here is the start of ROC's Statement of Principles (which are signed by more than a dozen notable and politically powerful conservatives):
As members of the nation’s conservative movement, we strongly support constitutionally limited government, transparency, individual liberty, personal responsibility, and free enterprise. We believe public safety is a core responsibility of government because the establishment of a well-functioning criminal justice system enforces order and respect for every person’s right to property and life, and ensures that liberty does not lead to license.
Conservatives correctly insist that government services be evaluated on whether they produce the best possible results at the lowest possible cost, but too often this lens of accountability has not focused as much on public safety policies as other areas of government. As such, corrections spending has expanded to become the second fastest growing area of state budgets — trailing only Medicaid.
Conservatives are known for being tough on crime, but we must also be tough on criminal justice spending. That means demanding more cost-effective approaches that enhance public safety. A clear example is our reliance on prisons, which serve a critical role by incapacitating dangerous offenders and career criminals but are not the solution for every type of offender. And in some instances, they have the unintended consequence of hardening nonviolent, low-risk offenders — making them a greater risk to the public than when they entered.
Applying the following conservative principles to criminal justice policy is vital to achieving a cost-effective system that protects citizens, restores victims, and reforms wrongdoers.
Regular readers know that I have long been wondering and complaining about the fact that many conservatives, while often complaining about the inefficacies of government programs, have "too often" failed to focus "as much on public safety policies as other areas of government." Thus, I am extraordinarily pleased that this potent new group is going to start playing a role in breaking down the polarizing politics that often derail what strike me as very sensible (and "conservative") modern sentencing and correction reform efforts.
Everyone should spend some time at RightOnCrime.com, which is claiming now to be "the one-stop source for conservative ideas on criminal justice." The site already has lots of useful content that can and should be utilized ASAP by criminal justice litigants as well as by policy-makers. (I am hopeful, though not confident, that ROC might start filing amicus briefs in important sentencing/corrections cases in addition to doing policy work and advocacy.) I know I now will be making the ROC blog a daily visit.
Some recent and older related posts on the modern politics of sentencing issues:
- When and how will state GOP leaders start cutting expensive criminal justice programming?
- New poll reports that large majority of Americans consider "War on Drugs" a failure
- Examining the politics of crime and punishment in modern gubernatorial settings
- Do "mama grizzlies" have a particular approach to crime and punishment issues?
- "Pot and the GOP: Is the party of ‘Just Say No’ morphing into the party of ‘Just Say Grow’?"
- Can GOP "Pledge to America" be read to suggest drawing down federal involvement in the drug war?
- Green tea party: will Glenn Beck or Sarah Palin or other professed liberty lovers support ending pot prohibition in California?
- Why doesn't the new Liberty Central website say anything about mass incarceration or the drug war or any criminal justice issues?
- What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
December 15, 2010 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack
SCOTUS reflections in Harvard Law Review covers Graham and Padilla effectively
I just got around to noticing that the traditional November Harvard Law Review issue reviewing the work of the prior Term of the Supreme Court is now fully available on-line here. Not surprisingly, this issue gives its greatest attention to the Citizens United ruling. But the big cases from last Term that criminal justice fans now know by first names — e.g., Skilling and McDonald — also seem to get effective case-note treatment. And, based on a quick skim, it seems that the two most significant rulings from last SCOTUS Term for sentencing law and policy are especially well examined in these short pieces:
- HLR assessment of Graham v. Floridaon the Eighth Amendment and LWOP sentences for juvenile offenders
- HLR assessment of Padilla v. Kentucky on the Sixth Amendment and advising defendants about collateral consequences of a conviction
"Top prosecutors oppose sentencing 'reform' proposals"
The title of this post is the headline of this local Arizona article, which highlights the all-too-common efforts of some prosecutors (and their lobbyists) to advocate against reform efforts that would give sentencing judges great discretion. Here are some details:
Top prosecutors from the state's two largest counties are moving to kill some sentencing "reform" proposals before they have a chance to sprout. Kathleen Mayer, the lobbyist for Pima County Attorney Barbara LaWall, took a specific shot at a proposal by Rep. Cecil Ash, R-Mesa, to make it harder to label something a "crime spree" which requires judges to impose minimum prison terms.... Maricopa County Attorney Bill Montgomery had his own objections to that element of the plan....
Montgomery also chastised Ash, who chairs a special legislative committee reviewing sentencing laws, for proposing to give judges more leeway in sentencing those found guilty of possessing child pornography. Right now, state law requires judges to impose consecutive prison terms for each item of pornography. That resulted in one recent case to a man being sent to prison for 200 years -- 10 years for each of 20 items. "Child pornography is not a victimless crime," Montgomery said.
Ash, an attorney and former public defender, said he is not making such a claim. But he pointed out that someone who actually molests a child can get out of prison after 35 years. And murderers are eligible for probation after 25 years. "Unless people want to say possession of child pornography is more serious, more harmful than murder, I think we need to look at our sentencing laws to make appropriate adjustments," Ash said....
The overall theme behind what Ash is proposing would give judges more discretion in sentencing. That would reverse a trend beginning in 1978 when lawmakers voted to impose mandatory prison terms for certain crimes. And in 1993 legislators approved a "truth in sentencing" law which says criminals must serve at least 85 percent of their term before being eligible for release. The result, said Ash, is there are more than 40,000 people in state prisons, a figure he computed out to one out of every 170 residents. "The problem with that is that the state is paying for that," he said. "The taxpayers are paying for that."
Mayer, however, said the proposal which Ash intends to introduce when the Legislature convenes next month goes too far. "Rep. Ash wants a lot more judicial discretion on a general basis than prosecutors are comfortable with," she said. And Montgomery said the laws on mandatory sentencing and minimum prison terms are necessary. "These drastic changes represent a movement away from sentencing laws that have both lowered crime rates and honored the rights of crime victims," Montgomery wrote. "Changes such as the ones proposed in the legislation undermine public safety and could have very serious consequences for the state." Ash, however, said other states have managed to alter their sentencing laws and also see a drop in crime.
Another target for Ash is an existing law that imposes mandatory prison terms on those who are convicted of possessing anywhere from two to four pounds of marijuana. He said that might be appropriate for a member of a drug cartel. But Ash said it's just as likely that the courier is just some drug user willing to do the job for a "fix," someone who a judge should be able to place on probation.
Mayer said that ignores evidence her office has that these "casual" couriers are not harmless. "The cartels are not doing our home invasions," she said. "It's our local traffickers who are engaging in smaller amounts -- just under 4 pound range -- where we're getting a lot of violence."
Mayer said there already are options for dealing with special situations like this, albeit not for the judges. She said her office has the ability to put someone who is determined solely to be a drug user and not involved with other crimes into a diversionary program. There, the person would get counseling and help rather than being incarcerated.
I think it is appropriate and important for prosecutors (and their lobbyists) to comment upon any proposed legislative criminal justice reforms. But I am always irked when prosecutors work extra hard to deny judges sentencing discretion because they fear that giving judges more authority to impose a fitting sentence risks diminishing prosecutors' always greater authority to assess, structure and frame the sentencing consequences facing a defendant.
Tenth Circuit refuses to block Oklahoma's planned use of new drug in execution protocol
As detailed in this local article a federal circuit court has now "allowed Oklahoma to proceed with executions, including one on Thursday, using a new lethal injection drug." Here's more:
The 10th U.S. Circuit Court of Appeals rejected a death-row inmate’s claim that the drug, pentobarbital, could cause cruel and unusual punishment, in violation of the U.S. Constitution. The Denver-based court concluded 3-0 that the amount of pentobarbital prison authorities plan to inject as the first of three execution drugs would by itself “likely be lethal in most, if not all, instances.”
The 10-page decision clears the way for the execution of John David Duty at 6 p.m. Thursday in the Oklahoma State Penitentiary in McAlester, and of Jeffrey Matthews on Jan. 11....
Prison authorities said a few months ago they would be using pentobarbital for the first time because there is a nationwide shortage of sodium thiopental, which previously was the first of three drugs used for executions.
The Tenth Circuit's ruling is available at this link, and this matter will surely get appealed to the Supreme Court. In the wake of Baze, I would be very suprised if the Justices get in the way of Oklahoma's execution plans. (At the same time, I think it possible that the two newest Justices, who joined the Court after the Baze ruling, might see this case as presenting a useful opportunity to express some views on lethal injection litigation.)