February 9, 2010
Noting some great successes in Texas justiceAs detailed in this January 2010 publication from the Texas Public Policy Foundation, the story of Texas justice (at least in the non-capital arena) is one that should garner much attention and praise. The publication is titled "Texas Criminal Justice Reform: Lower Crime, Lower Cost," and here is how it starts:
In recent years, Texas has strengthened alternatives to incarceration for adults and juveniles, achieving significant reductions in crime while avoiding more than $2 billion in taxpayer costs that would have been incurred had Texas simply constructed more than 17,000 prison beds that a 2007 projection indicated would be needed. Similarly, juvenile crime has markedly declined at the same time Texas has reduced the number of youths in state institutions by 52.9 percent. By building on these successes in a challenging budget environment, policymakers can continue delivering improved results for public safety and taxpayers.
Especially because Texas is often (justifiably?) attacked for how they administer capital justice, I cannot help but wonder if there might be more than a coincidental relationship between Texas still being extra tough on the death penalty and now becoming extra astute in other areas of sentencing law and policy. Is it possible that politicians who can readily display their "toughness" in the context of the death penalty are then especially able to avoid the often-problematic toughness posturing in debates over non-capital sentencing laws?
Oklahoma legislature still eager to make child rape a death penalty offenseThis new local article, whcih is headlined "Okla. panel OKs death sentence for child rapists," spotlights that some legislators continue to want to resist the Supreme Court's 2008 Kennedy ruling declaring unconstitutional Louisiana's capital child rape law. Here are the basics:
Repeat sex offenders convicted of raping a child 6 years old or younger would be eligible for the death penalty under a bill approved Monday by a House committee, despite a 2008 U.S. Supreme Court ruling that a similar law was unconstitutional. The bill by Rep. Rex Duncan, R-Sand Springs, was among a host of measures overwhelmingly approved by the House Judiciary Committee that either create new felony crimes or enhance existing criminal penalties.
Duncan, a former prosecutor who chairs the committee, said he believes the Supreme Court erred in its decision and that his proposed law could be upheld by the new members of the court. "I think they did get it wrong," Duncan said of the Supreme Court's 5-4 decision, "and I would not be surprised if other states revisit their statutes on this issue."... Duncan said the intent of his bill is to target child rapists who already have a previous conviction for a violent sex offense.
"If that's what the bill says, the bill is facially unconstitutional," said Randall Coyne, a constitutional law professor at the University of Oklahoma. "The court can change its mind, and it often does ... but I doubt the court would overturn so recent a decision."
State Rep. Ryan Kiesel, the lone opposing vote against the measure, said he agrees child rapists should be handed harsh penalties but questioned the wisdom of a measure that clearly violate a Supreme Court ruling.
Australia province to start utilizing community-based "sentencing councils"This interest local story from Australia, which is headliend "Community 'sentencing council' to advise on legal punishments," reports on an notable development Down Under. Here are the details:
The Queensland Government says the community will get more of a say in how criminals are punished. Members of the public will be invited to join a sentencing council. It will include victims of crime and experts in criminal law and juvenile and Indigenous justice.
Attorney-General Cameron Dick says it will advise the Government on criminal sentencing, and on Court of Appeal guideline judgments. "The purpose of the council is to bridge the gap between community expectations, Government and the Judiciary in relation to criminal sentencing," he said.
Mr Dick says there are differing views on whether Queensland courts are too lenient. He says he recognises that sometimes, it may seem that sentences do not fit the crime. "I think the community has a very broad view of sentencing," he said. "Some people think sentences need to be tougher -- other people who go through the criminal justice system know how difficult and problematic that process can be."
This form of a "sentencing council" in Australia sounds a bit like American sentencing commissions, but I surmise the composition and responsibilities of the Aussie sentencing council will not be directly akin to American sentencing commission.
February 8, 2010
"Would Ending The Drug War Stimulate Economic Growth?"
The title of this post is the headline of this new commentary up here at The Atlantic. Here is how it starts:
Correspondent Richard Posner wrote an interesting blog post suggesting six ways that the U.S. could stimulate economic growth, without making the debt much worse. I agree with much said in the post, but there's one point that I want to pick at a little. Posner believes that ending the drug war would help. I'm not so sure.
There are many philosophical reasons for ending the drug war that are quite compelling. If you have any libertarian friends, just ask them, and I'm sure they'll happily rant on for hours. There are also a couple of economic benefits that I've heard. But providing for more economic growth isn't an argument I've come across very often.
Thoughts, dear readers? Is it time to start talking about an "Economic Stimulants Package"?
Eighth Circuit rejects challenge to constitutionality of Arkansas lethal injection protocolAs detailed in this AP article, today a "federal appeals court upheld Arkansas' lethal injection procedure ... [by affirming] the dismissal of a lawsuit filed by three death-row inmates, including two who are scheduled to die over the next nine weeks." The Eighth Circuit's panel ruling in Nooner v. Norris, No. 08-2978 (8th Cir. Feb. 8, 2010) (available here), starts this way:
Terrick Terrell Nooner, Don William Davis, Jack Harold Jones and Frank Williams, Jr. (collectively, “the Inmates”) were each convicted of capital murder in Arkansas. Their convictions have been affirmed, their petitions for post-conviction relief have been denied, and they await execution by the State of Arkansas. In this 42 U.S.C. § 1983 lawsuit against Larry Norris, Director of the Arkansas Department of Correction, and other corrections employees (collectively, “the ADC”), the Inmates challenge the constitutionality of Arkansas’s protocol for execution by lethal injection. The district court granted the ADC’s motion for summary judgment, and the Inmates now appeal. For the following reasons, we affirm.
Intriguing little Eleventh Circuit ruling on loss calculation and restitutionThe Eleventh Circuit has an interesting little decision today in US v. Patterson, No. 09-13354 (11th Cir. Feb. 8, 2010) (available here), that should be of interest to folks working on various white-collar sentencing issues. Here is how the ruling starts:
This appeal presents the question of whether it is error for a court to sentence a defendant under a Guidelines calculation of intended loss that is more than double the amount of restitution ordered in the same case. We conclude that the facts of this appeal do not present the plain error that appellant asserts. We also reject appellant’s claim of ineffective assistance of counsel because the record is not sufficiently developed and collateral attack is the preferable avenue for such challenges. Therefore, we affirm the judgment of the district court.
"New legal issue: Payment for child porn victims"
The title of this post is the headline of this new AP piece, which effectively reviews the robust legal and policy debates over whether restitution orders should be a big part of federal child porn sentencing proceedings. Here are excerpts:
The issue of criminal restitution in child pornography possession cases emerged last February in Connecticut when a federal judge said he would order a man convicted of possessing and distributing child pornography to pay about $200,000 to Amy. The judge said it was the first criminal case in which someone convicted of possessing illegal images — but not creating them — would be required to pay restitution. (The case settled for $130,000 before the judge issued his final order.)
Since then, requests for restitution have picked up as more victims are identified — and as a couple of victims, including Amy, have hired attorneys, said Meg Garvin, executive director of the National Crime Victim Law Institute in Portland, Ore.
Hundreds of requests have been filed nationwide, most of them by Amy's attorney, James Marsh of New York. Marsh said that as recently as five years ago, restitution would have been impossible because victims wouldn't have known when someone was caught with an image of them. The Crime Victims Rights Act of 2004 set up a system for notifying the victims. Now, Marsh gets several notices a day on behalf of Amy.
Marsh, who declined to make Amy available for an interview, is seeking restitution for Amy in 350 cases nationwide. Each request is about $3.4 million. She won't get that amount in every case. But any sum collected would go toward that total to cover Amy's counseling, medical costs, future lost earnings and lawyer fees.
Courts have been divided on how to handle the requests. At least two courts in Florida ordered restitution of more than $3.2 million, but some others ordered nominal amounts. Several others denied it. "Everyone is really grappling with this in good faith," said Marsh. "It's all over the place."...
Some defense attorneys have argued that children are not victimized by mere possession of pornography or that their client had no direct connection to the victims. Others have argued it's impossible to fairly calculate how much harm one offender caused the victim.
After a federal judge in Florida found Arthur Weston Staples III, of Manassas, Va., jointly liable for $3.5 million in restitution for having an image of Amy, Staples' attorney, Jonathan Shapiro, argued on appeal that there was no connection between the two "other than the fact that he possessed her image on his computer approximately 10 years after that image had been manufactured by her uncle ... who caused her extreme damage." Prosecutors should have to prove that Amy was a victim of Staples' particular act, and that she would not have been harmed if Staples hadn't had the image, Shapiro argued. The appeal is pending.
A federal appeals court recently upheld a Texas judge's decision to deny restitution because prosecutors didn't show how much harm the specific defendant caused. The ruling in the 5th U.S. Circuit Court of Appeals drew a sharp dissent from Judge James Dennis. "Her right to restitution is not barred merely because the precise amount she is owed (by this defendant) is difficult to determine," Dennis wrote.
Other defense lawyers have said restitution requests belong in civil court. Bradford Colbert, a William Mitchell College of Law professor, agreed. "It just isn't appropriate for criminal court to make those determinations," he said. "This is the type of thing that should be resolved in a civil lawsuit. You get convicted of a crime and you get sued by a victim, and there's a civil lawsuit where you pursue damages."
Marie Failinger, a Hamline Law School professor, said allowing restitution in criminal cases is important because many victims don't have the resources to pursue civil cases. She predicted it would take three to five years for courts to figure out a consistent way to handle requests for criminal restitution.
Meanwhile, victims' advocates see criminal restitution as one more tool for fighting child porn. "The people who engage in this stuff need to be held accountable, even if they are not the person who is raping the child," said Ernie Allen, president of the National Center for Missing and Exploited Children. "People who are distributing this stuff, people who are downloading this stuff — when they do that, there's a victim, and there's a real harm."
Regular readers know that I have been covering this "new legal issue" closely every since the Feb 2009 ruling in Connecticut referenced above (and blogged here). Below are just a few of my old and new posts on this important and dynamic topic:
- Effective NY Times coverage of child porn restitution debate
- "Prosecutors seek nearly $200k for child porn victim"
- Effective new opinion discussing restitution in federal child porn possession cases
- Another thoughtful and notable district court opinion on restitution in child porn sentencing
- The latest (beneficial?) litigation front in child porn downloading battles
- Federal sentence for receiving child porn includes forfeiture of home
- Noting the latest data showing reduced (but disparate) federal sentences for child porn downloaders
UPDATE: A helpful reader reader has reminded me that the Fifth Circuit ruling referenced in the AP article is somwhat hard to find. I fear that the ruling in In Re: Amy, No. 09-41238 (5th Cir. Dec. 21, 2009), does not appear on Lexis, but I think it is available via Westlaw at 2009 WL 4928376. Even better, I believe everyone can access thise this mandamus ruling from the Fifth Circuit at this link thanks to the bloggers at The Volokh Conspiracy.
February 7, 2010
"Record 86% of Japanese Support Death Penalty, Yomiuri Reports"The title of this post is the headline of this Bloomberg news item. Here are the details:
Japanese support for the death penalty rose to a record 85.6 percent, the Yomiuri newspaper reported, citing a poll by the Cabinet Office.
Support for capital punishment rose from 81.4 percent in 2004, while opposition to the death penalty under any circumstances declined to 5.7 percent, from 6 percent, the report said. The Cabinet surveyed 3,000 men and women 20 and older, it said.
Death penalty abolitionists often like to suggest that only third-world countries or countries with poor human rights records like China still are fans of the death penalty. But I always remember that Japan stands as another modern example of an advanced industrialized nation that still utilizes capital punishment. And this latest survey suggests that support for the death penalty in Japan may be the very strongest in the entire world. Very interesting.
Did Sarah Palin or any others at the Tea Party Convention talk about pot prohibition or mass incarceration?
Though I sense that everyone is still trying to figure out just what the Tea Party movement is (or isn't), I think it is safe to assert and assume that the movement is interest in promoting human liberty and concerned about "big government." In light of these apparent interests, I keep wondering whether and when some folks in the Tea Party movement might start expressing concern about some of the most prominent modern criminal justice examples of big government severely restricting human liberty, namely government prohibitions on the use and sale of marijuana and government reliance on mass incarceration to address various perceived social ills.
Because the Tea Party movement seems likely to skew more conservative than libertarian, I am not entirely surprised that the movement has largely avoided discussion of modern criminal justice issues. Nevertheless, I believe some Tea Party favorites like Sarah Palin and Glenn Beck have in the past expressed at least tepid support for the idea of pot decriminalization, and there are a number of religious conservatives who wish our criminal sentences would focus more on rehabilitation and less on incapacitation. Thus, if the Tea Party is able to effectively persist, I expect (or at least hope) it will take a fresh look at some criminal justice issues that the two traditional parties lack the courage to seriously confront.
Some related (old and new) posts:
- What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
- Is Governor Palin is a real fan of jury nullification and pot decriminalization?
- Governor Palin, crime and punishment
- Will we invest in classrooms or cells in these tough times?
- The state of cost problems in the states of prison nation
- Why is Senator Jim Webb the only national figure focused on the prison economy?