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March 6, 2010

Huff Post commentary urging stiffer sentences and chemical castration for sex offenders

Alex D'Adrea has this notable new commentary at The Huffington Post, which is headlined "Sexual Predators and Their Threat to Society: Our Laws are Not Enough."  Here are excerpts:

From state initiatives like Jessica's Law and Megan's Law to federal initiatives, it is clear sexual offenders and their acts are on everyone's mind.  Alabama Representative Arthur Payne who just had a law passed disabling sex offenders from working in public transit situations where children are accessible.  This, however, is not enough. Just take a look at this week's Chelsea King case, where sex offender John Albert Gardner III allegedly raped and took an innocent high school students life.  He was convicted once before for sexual offenses and let out after only five years of imprisonment.  Sexual predators are often repeat offenders, and our laws allow them to go back out on the streets.

Chelsea King is emblematic of your sister, daughter, mother, or friend.  Her situation happens by the numbers every day in America.  Our laws are not enough.

My Proposal: Streamline state and federal laws into a comprehensive sexual predatory law for perpetrators who commit sexual violence against minors.  This means creating a law that evokes fear so great within predators.

1) Sex offenders who commit crimes against children need longer sentencing.  No individual who has sexually assaulted a child should be granted release after only five years like in the case of John Albert Gardner.  Pedophiles show time and time again that most are repeat offenders.

2) Chemical castration should occur. This is not a permanent castration. It is a chemical that severely lowers sexual drive in predators.

I understand that my second point is controversial, and may be looked at as unconstitutional, however when standing back to asses these individuals and the acts they commit, this measure seems appropriate. Several US states already enforced similar measures.  In 1996 California became the first state to enact legislation providing for chemical castration of certain sex offenders.  About 6 months later, in 1997 the Florida legislature overwhelmingly enacted chapter 97-184 opening the door for chemical castration of sex offenders.  

The Florida statue mandates court-ordered weekly injections of a sex-drive reducing hormone to qualified repeat sex offenders upon release from prison, and may be administered to first time offenders. The statue authorizes a trial judge to sentence any defendant who is convicted of sexual battery to receive medroxprogesterone acetate or MPA, the chemical castration drug. If the defendant is convicted of sexual battery and has a prior conviction for sexual battery, the trial court is required to impose a sentence of MPA administration....

France, along with a number of other European countries, including Sweden and Denmark, already allows the use of drugs to lower the sex drive of offenders who agree to it. Prime Minster Fillon feels "we have to look at how, as a part of surveillance and control measures after someone leaves prison, we might make this more restrictive if necessary. It's a subject we are working on and we will make proposals to parliament in that direction." In September of 2009 Poland approved a law making chemical castration mandatory for some pedophiles. I feel the United States should take a more aggressive approach to the sentencing of convicted pedophiles, similar in the vein of Poland.

One of the nation's leading authorities on MPA, Dr. Fred Berlin, founder of the Biosexual Psychological Clinic at the John Hopkins Hospital, believes that prevailing research demonstrates that MPA will drastically reduce the rate of recidivism, or reversion to criminal behavior, of some sex offenders after they are released from prison.  Most medical experts agree that, under proper conditions, the drug can be an effective rehabilitation tool for a narrow category of sex offenders.

I hope that this will inspire a grassroots movement to enforce harsher punishments on convicted pedophiles, as new measures must be taken in order to protect our children.

When proposals and rhetoric like this is emerging from a liberal website like Huff Post, it may be only a matter of time before these kind of ideas take root in formal legislation. 

As regular readers may know, I tend to be open to the idea of much broader use of "technocorrections" like chemical castration if and when there is a reasonable basis to believe such novel punishments might be more effective than prison to reduce recidivism.  As noted in prior posts, however, I am not confident that there have been many (any?) rigorous modern assessments of sex offender castration in the United States, even though chemical castration as a form of alternative punishment has been considered (and used?) widely throughout the nation for well over a decade.

Some older and newer related posts on chemical castration:

March 6, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (45) | TrackBack

"Changing Marijuana Laws Could Save Millions"

The title of this post is the headline of this notable political dispatch from Florida.  Here are excerpts:

At a time when California is releasing thousands of small time drug offenders from prison, Florida could consider reducing its penalties for people caught with small amounts of marijuana and cocaine.  As Whitney Ray tells us, lessening the penalties could save the state millions and help fill a three billion dollar budget gap.

Courtney Scout admits she smokes marijuana about once a week. “It’s a plant, it grows from the earth.  It’s not a chemical someone concocts in a room.  It’s a plant and I don’t think it should be criminalized,” said Scout.

She thinks Florida’s drug laws are too harsh.  A person caught with 20 grams of marijuana in Florida can go to prison for five years. In California 28 grams or less will just get you a misdemeanor. In New York offenders caught with less than 25 grams are given a civil citation.

Florida TaxWatch says the state could save 10 million dollars a year if it stopped sending low-level offenders to state prisons.  Even Florida’s Attorney General admits changing the law could help fill the state’s three billion dollars budget gap.  “If you got simple possession of a small quantity, I think there are innovative ways to deal with simple possession that don’t always require going to prison,” said McCollum.

Victor Crist, the chairman of the Senate’s Criminal Justice Appropriations Committee says it’s an idea worth discussing.  Crist wants to reexamine all sentencing guidelines, not just those involving marijuana.

March 6, 2010 in Drug Offense Sentencing | Permalink | Comments (5) | TrackBack

March 5, 2010

Former mayor of Birmingham gets 15 years for bribery

As detailed in this Bloomberg report, in federal court today the "former mayor of Birmingham, Alabama, was sentenced to 15 years in prison for taking $241,000 in bribes in exchange for giving $7.2 million in sewer-bond and derivatives business to a friend who was an investment banker."  Here's more:

Larry Langford, 63, was sentenced today by U.S. District Judge L. Scott Coogler in Tuscaloosa, Alabama. Jurors found in October that Langford, a Democrat, solicited cash, loan payoffs and designer suits from William Blount, the former head of a Montgomery, Alabama-based securities firm, and Albert LaPierre, a consultant. In return, Langford, then president of the Jefferson County Commission, used his power to bring Blount into deals, including a $3 billion refinancing of the county’s sewer debt led by JPMorgan Chase & Co. “I am sorry all this has occurred,” Langford said in court before the decision.

Prosecutors had asked Coogler for a term of at least 24 years.... “He destroyed the public’s trust in government, and he still attempts to shift blame for his own conduct,” Assistant U.S. Attorney George Martin said before Langford’s sentence was handed down. Later, Martin said the sentence was fair and would serve as a message to other politicians.

March 5, 2010 in White-collar sentencing | Permalink | Comments (1) | TrackBack

State judge in Texas declares the state's death penalty unconstitutional based on innocence concerns

The Houston Chronicle has this new piece, which is headlined "Judge declares death penalty unconstitutional," reporting on a remarkable new development in the operation of the death penalty in Texas. Here are the basics:

A Houston judge on Thursday granted a pretrial motion declaring the death penalty unconstitutional, saying he believes innocent people have been executed. “Based on the moratorium (on the death penalty) in Illinois, the Innocence Project and more than 200 people being exonerated nationwide, it can only be concluded that innocent people have been executed,” state District Judge Kevin Fine said. “It's safe to assume we execute innocent people.”

Fine said trial level judges are gatekeepers of society's standard for decency and fairness. “Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty so that we can execute those who are deserving of the death penalty?” he said. “I don't think society's mindset is that way now.”

The motion was one of many submitted by defense attorneys Bob Loper and Casey Keirnan arguing Texas' death penalty was unconstitutional for their client, John Edward Green Jr. Loper said he and Keirnan were pleased by Fine's ruling, which will be appealed and almost certainly reversed....

If Fine's ruling were to be upheld, it effectively would take away the option of the death penalty in Green's case.... Green, 23, is accused of fatally shooting a Houston woman and wounding her sister on June 16, 2008. Harris County District Attorney Pat Lykos issued a statement disagreeing with Fine's ruling. “Words are inadequate to describe the Office's disappointment and dismay with this ruling; sadly it will delay justice for the victims and their families,” the statement said. “We will pursue all remedies.”

The statement noted that the Texas Court of Criminal Appeals and other appellate courts consistently have rejected the same arguments. “We respectfully, but vigorously, disagree with the trial judge's ruling, as it has no basis in law or in fact,” Lykos wrote.

On Thursday, Texas Attorney General Greg Abbott's office issued a news release calling Fine's ruling “an act of unabashed judicial activism.” Abbott offered to help the Harris County District Attorney's Office appeal the decision. Fine, the statement said, ignored U.S. Supreme Court precedent in granting the motion.

March 5, 2010 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (32) | TrackBack

Do we want the feds going hard after the "pampered wives of Ponzi schemers"?

The question in the title of this post is prompted by this article coming from the Sun Sentinel, which is headlined "Pampered wives of Ponzi schemers: Can they be charged with crimes too?".  The piece discusses today's upcoming sentencing of one "ponzi wife," and here is how it starts:

They once could be found at the sides of their charming, wealthy husbands -- leading lives of privilege and glamour. Now those years of comfortably basking in money are gone, replaced by lawyers' questions and the scorn of former friends.  Their posh lives had been built on their husbands' schemes.

Call them "The Real Housewives of South Florida Ponzi Schemers."  Among them is mother Victoria Meisner, whose husband, Michael, masterminded a $37 million fraud.  Her story, however, is different from that of most of the other wives'.  For like her husband, she's now a convicted felon.

Victoria Meisner, 53, could be headed to federal prison when she's sentenced Friday morning for filing a false tax return.  She pleaded guilty in November to reporting $49,626 of total income in 2003, despite helping rack up more than $430,000 in personal expenses that year on a debit card belonging to her husband's business, Phoenix Diversified Investment Corp.

Meisner's case highlights one of the inevitable questions for authorities investigating Ponzi schemers and how they threw around their ill-gotten gains:  Should family members whose luxurious lifestyles were funded by dirty money face criminal charges themselves?  In some cases, yes, authorities say.

John Gillies, head of South Florida's FBI office, has called the Meisner case "a cautionary tale to spouses that they cannot claim ignorance about their financial situation when they know better."

Defense lawyers who specialize in white-collar crime agree that just because a spouse or family member isn't actively involved in a fraud, it doesn't mean he or she is safe from criminal prosecution. "Willful blindness in the criminal system is tantamount to actual knowledge if there are sufficient red flags to alert an individual that criminal activity is afoot," said Sharon Kegerreis, a Miami-based attorney and former federal prosecutor.

March 5, 2010 in White-collar sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

"Should registry log teen sex offenders?"

The question in the title of this post is the headline of this article from the Jackson (Tennessee) Sun.  Here is how it begins:

State legislators expect a strong debate about whether juveniles' names, photographs and other information should be put on a state registry when they are convicted of violent sexual crimes.

State Rep. Debra Young Maggart, R-Hendersonville, introduced a bill last month that would require youths 14 or older to be placed onto a public registry for violent sexual offenses such as rape or attempted rape. The bill, House Bill 2789, also states that when the offenders turned 18, they would continue to have a record as an adult and would be placed on the adult registry.

Some restrictions that apply to adult registered sexual offenders would not apply to the juveniles until they turned 18, according to the bill. For example, adult offenders whose victims were minors can't live, work or attend treatment programs within 1,000 feet of a school, child-care facility, or public park or recreation area.

Supporters of creating a juvenile sex offender registry tout it as a way to make the public aware of violent criminals. Critics of the proposal say many juvenile offenders can be reformed and the bill could harm their ability to live a normal life. An example they cite is potential problems with finding a job.

Rep. Johnny Shaw, D-Bolivar, said he sees many positives about the bill but also has some concerns. He said he'd have to see what amendments are made to the bill before deciding whether he'd vote yes or no. "First and foremost, a crime is a crime, and a sexual offender is a sexual offender whether they are a juvenile or an adult," said Shaw, who serves on the House of Representatives' Children and Family Affairs Committee. "What I'm concerned about is in realizing this out, would this mar the reputation of a child forever?"

March 5, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (23) | TrackBack

March 4, 2010

Eleventh Circuit rejects Second Amendment right of felon to possess a gun for any purpose

Though many circuits have already rejected Second Amendment claims brought by felons prosecuted and sentenced under the federal felon-in-possession criminal statute, the Eleventh Circuit's opinions today in US v. Rozier, No. 08-17061 (11th Cir. Mar. 4, 2010) (available here), has the broadest language in any of these rulings that I can recall.  Here are snippets:
One of the major thrusts of the [Heller] Court’s ruling was “the inherent right of self-defense ... central to the Second Amendment right.” Id.at 2817.  Rozier argues that his case parallels the facts in Heller, in that his possession of a handgun was in the home and for the purposes of self-defense. For the purposes of this appeal, we accept Rozier’s assertion that he possessed the handgun for self-defense; however, the motive behind Rozier’s possession of the handgun is irrelevant.  We find 18 U.S.C. § 922(g)(1) to be constitutional, even if a felon possesses a firearm purely for self-defense....

Prior to taking into account Rozier’s purpose for possessing the handgun, we must determine whether he is qualified to possess a handgun.  Rozier’s Second Amendment right to bear arms is not weighed in the same manner as that of a law-abiding citizen, such as the appellant in Heller. While felons do not forfeit their constitutional rights upon being convicted, their status as felons substantially affects the level of protection those rights are accorded...

Thus, statutory restrictions of firearm possession, such as § 922(g)(1), are a constitutional avenue to restrict the Second Amendment right of certain classes of people.  Rozier, by virtue of his felony conviction, falls within such a class.  Therefore, the fact that Rozier may have possessed the handgun for purposes of self-defense (in his home), is irrelevant.

I cannot think of any other enumerated right in the Bill of Rights which has no application whatsoever to "certain classes of people" who are adult Americans.  But, of course, it has been obvious for quite some time that Second Amendment rights are special --- and now after Heller it seems proper to say that what makes the Second Amendment so special is that the rights it affords are available only to those "classes of people" whom judges and Justices decide are special enough to be trusted with the right of self defense in the home.

March 4, 2010 in Second Amendment issues | Permalink | Comments (32) | TrackBack

"As Budget Cuts Free Prisoners, States Face a Backlash"

The title of this post is the headline of this new piece from the New York Times.  Here is how it gets started:

In the rush to save money in grim budgetary times, states nationwide have trimmed their prison populations by expanding parole programs and early releases. But the result — more convicted felons on the streets, not behind bars — has unleashed a backlash, and state officials now find themselves trying to maneuver between saving money and maintaining the public’s sense of safety.

In February, lawmakers in Oregon temporarily suspended a program they had expanded last year to let prisoners shorten their sentences for good behavior (and to save $6 million) after an anticrime group aired radio advertisements portraying the outcomes in alarming tones. “A woman’s asleep in her own apartment,” a narrator said. “Suddenly, she’s attacked by a registered sex offender and convicted burglar.”

In Illinois, Gov. Patrick J. Quinn, a Democrat, described as “a big mistake” an early release program that sent some convicts who had committed violent crimes home from prison in a matter of weeks. Of more than 1,700 prisoners released over three months, more than 50 were soon accused of new violations.

An early release program in Colorado meant to save $19 million has scaled back its ambitions by $14 million after officials found far fewer prisoners than anticipated to be wise release risks. In more than five months, only 264 prisoners were released, though the program was originally designed to shrink the prison population by 2,600 over two years.

A victims’ rights group in California sued last month to block a state law that expands the credits prisoners can receive to shorten their sentences, and prosecutors in Michigan are challenging release decisions there.

“We’re not saying we shouldn’t reduce the prison population, but we’re saying you have to be very careful, and they’re making mistakes left, right and sideways,” said Jessica R. Cooper, the Oakland County prosecutor in Michigan, where the state prison population shrank by 3,200 inmates last year and where the parole rate is the highest in 16 years. “You cannot measure those mistakes in terms of money,” Ms. Cooper said.

Some recent related posts:

March 4, 2010 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Eighth Circuit affirms long sentence based on "hypothetical criminal-history points" and dismissed murder charge

The Eighth Circuit has a very interesting sentencing ruling today in United States v. Azure, No. 08-3663 (8th Cir. Mar. 4, 2010) (available here).  The relatively short opinion covers a relatively large number of sentencing issues, and here is how it starts:
On remand from a prior appeal, the district court sentenced Tamara Azure (“Wind”) to 180 months of imprisonment on two counts of assault with a dangerous weapon in violation of 18 U.S.C. §§ 1153 and 113(a)(3).  In doing so, the district court departed upwardly based on an under-representative criminal history.  The court also made an express factual finding that Wind committed an execution-style murder on a different occasion, as alleged in a dismissed count. The court reached its overall sentence by imposing consecutive sentences on the two counts.

March 4, 2010 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (6) | TrackBack

Notable Second Circuit ruling about inmate classification as a sex offender

Earlier this week, the Second Circuit issued an interesting ruling in Vega v. Lantz, No. 08-4748 (2d Cir. Mar. 2, 2010) (available here), in which the panel reverses a district court's ruling granting relief to a Connecticut inmate who complained about his designation as a sex offender based on the fact that he had been acquitted of sexual assault (though convicted of first-degree assault and kidnapping) after horribly abusing a "sixteen-year-old girl, with whom he had a sexual relationship, when he was twenty-nine-years old."  Here is how the opinion begins:

Defendants-appellants, who are prison officials, appeal from a judgment of the United States District Court for the District of Connecticut (Dorsey, J.), granting-in-part plaintiff-appellee Joe Burgos Vega’s motion for summary judgment.  Vega, a prison inmate, sued Connecticut prison officials alleging, among other things, that they violated his liberty interests and procedural due process rights arising under the Fourteenth Amendment by failing to afford him a hearing before assigning him an inmate classification that, in his view, was tantamount to classifying him as sex offender.  The district court granted Vega summary judgment and injunctive relief on this claim and dismissed the remaining ones.  Vega v. Lantz, No. 3:03-cv- 23 2248, 2008 WL 3992651 (D. Conn. Aug. 25, 2008). For the reasons set forth below, we reverse.

March 4, 2010 in Prisons and prisoners, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Chelsea King tragedy heats up politics around sex offender monitoring

This new ABC News piece, which is headlined "Chelsea King Case: Outrage Over Sex Offender Monitoring Reaches White House: John Walsh Said President Obama Vowed to Fund Federal Sex Offender Law," highlights that the latest crime tragedy is turning up the political heat concerning sex offender monitoring. Here are excepts:

John Walsh, host of "America's Most Wanted," said he met with President Obama Wednesday to discuss child protection laws and funding for the Adam Walsh Act, signed three years ago by President Bush. The law promised to create a national registry of sex offenders and keep closer track of the most violent of them, but it did not come with the funds needed to carry it out.

"President Obama said yesterday, 'As the father of two girls, John, I will get the Adam Walsh law funded,'" Walsh told "Good Morning America" today....

King, a well-liked honors student, vanished after heading out for a jog in a semi-rural San Diego County park. Her body was found less than a week later, buried in a shallow grave near the shore of Lake Hodges, about a half-mile from her car.

But the outrage grew with the arrest of Gardner, a known violent sex offender who has since been charged with the December assault and attempted rape of 22-year-old Candice Moncayo in the same park where King's body was found.

"I think everyone asks the same question," Walsh said. "Why was this animal out on the streets?"...

"The law should be once you offend, you're done, you're toast, you're in the slammer or you are executed," one angry woman said as she stood among protestors outside the courthouse.

Former San Diego County District Attorney Paul Pfingst was slightly more objective. "I am of the view that people who do harm to teenage girls should go to Gitmo and stay there for the rest of their lives and be waterboarded," he said.

Related post on Chelsea King case:

March 4, 2010 in Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (42) | TrackBack

"Recognizing Constitutional Rights at Sentencing"

The title of this post is the title of this new piece on SSRN by Professor F. Andrew Hessick III and Carissa Byrne Hessick. Here is the abstract:

There are a number of traditional sentencing factors, which judges use when selecting the precise sentence within the statutory sentencing range, that appear to infringe on the constitutional rights of criminal defendants.  Yet courts have not engaged in traditional constitutional analysis when permitting the use of these factors.  Instead, they have rejected constitutional challenges to sentencing factors on the grounds that recognizing substantive constitutional limits on sentencing considerations would be inconsistent with historical practice and would interfere with the judiciary’s ability to impose a proper sentence.  This Article challenges these claims.  It demonstrates both that there is not a historical practice of disregarded rights at sentencing, that constitutional rights frequently impair the government’s ability to accomplish its goals, and that there is nothing unique about sentencing that warrants the judiciary’s disregard of constitutional rights because of these impediments.  It further argues that recognizing constitutional limits on sentencing considerations is particularly important given that sentencing is the means by which the government restricts individual liberty.

March 4, 2010 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

March 3, 2010

Two new reports from The Sentencing Project about state prison reductions

This new Washington Post article, which is headlined "States reduce prison populations as budgets shrink," details the major take-away points from two new reports coming today from The Sentencing Project.  Here is the start of the Post article:

Many state governments continued last year to reduce their prison populations through sentencing reforms enacted because of shrinking state budgets, according to two reports released Wednesday by a research group that advocates for lower rates of imprisonment.

In 2009, at least 19 states adopted criminal justice policies intended to cut down on the number of prisoners they house by shortening sentences, according to the Sentencing Project. For example, Minnesota, New York and Rhode Island each scaled back mandatory sentencing laws for some drug offenses.

This page from the The Sentencing Project's website provides this overview (and links to) these new report:

As states grapple with the fiscal crisis and confront costly and overburdened criminal justice systems, two reports released today by The Sentencing Project offer roadmaps to successful prison downsizing that maintain public safety.  The reports document a growing trend to reform sentencing policies and scale back the use of imprisonment in order to control spending.

"Downscaling Prisons: Lessons from Four States," released by Justice Strategies and The Sentencing Project [and available here], finds that four states -- Kansas, Michigan, New Jersey, and New York -- have reduced their prison populations by 5-20% since 1999 without any increases in crime. This came about at a time when the national prison population increased by 12%; and in six states it increased by more than 40%. The reductions were achieved through a mix of legislative reforms and changes in practice by corrections and parole agencies....

Other states have joined this trend, and 2009 proved to be a high mark for such reforms. The Sentencing Project's report, "The State of Sentencing 2009: Developments in Policy and Practice," by Nicole D. Porter [and available here], highlights reforms in at least 19 states that hold the potential of further prison population reductions.

March 3, 2010 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Washington state following Ohio's lead to adopt a one-drug lethal injection protocol

This AP story, headlined "WA changes execution method," suggests that Ohio's recent success with a change to a one-drug lethal injection protocol is having an impact in other state laboratories.  Here is how the piece starts:

Washington state has changed its method of execution from a three-drug cocktail to a one-drug system, according to paperwork filed Tuesday with the state Supreme Court.

The filing by state Attorney General Rob McKenna reveals that the state made the decision last Thursday.  It wants the high court to dismiss portions of the appeal of death-row inmate Darold Stenson, arguing that a challenge of the drug protocol's constitutionality is now moot.

The state Department of Corrections is in the process of rewriting the execution policy that will make Washington the second state in the nation to use the one-drug method.

Ohio switched in January after the botched execution of Romell Broom that was halted by Gov. Ted Strickland in September.  Executioners unsuccessfully tried for hours to find a usable vein for injection, and Broom has appealed the state's attempt to try again.  Ohio has executed three men under the new method.

Some related posts:

March 3, 2010 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (4) | TrackBack

"Is Punishment Relevant After All? A Prescription for Informing Juries of the Consequences of Conviction"

The title of this post is the title of this new piece on SSRN by Jeffrey Bellin.  Here is the abstract:

The American jury, once heralded as “the great corrective of law in its actual administration,” has suffered numerous setbacks in the modern era.  As a result, jurors have largely become bystanders in a criminal justice system that relies on increasingly severe punishments to incarcerate tens of thousands of offenders each year.  The American criminal justice system disposes of most cases short of trial and increasingly casts the jurors’ trial task as one of almost menial factfinding.  The jury is instructed to find the facts necessary for legal guilt, and suppress any concerns about whether a conviction and subsequent punishment is unjust.

Coupled with the proliferation of harsh, mandatory sentencing regimes, this gradual erosion of the jury’s role has led to a system that not only tolerates, but arguably encourages, injustice.  A defendant charged with a relatively minor offense may be convicted and sentenced to a lengthy prison term without any neutral figure (either judge or jury) determining that the punishment is proportionate to the crime.

For years, reformers have suggested that this recipe for inequity could be altered if jurors were informed whenever an unusually severe punishment would follow upon a guilty verdict.  The jurors, applying community notions of fairness and justice, could then vote to acquit despite proof of guilt, or at least steadfastly hold the prosecution to its burden of proof.  Specifically, reformers attack the status quo on two separate fronts, advocating that: (i) legislatures enact statutes designed to inform juries of unusually harsh sentencing provisions, and their right to nullify; and (ii) courts recognize constitutional rights that would have a similar effect. There are few signs of movement on either of these fronts.

Central to the reformers arguments has been the widely-shared assumption that the current legal framework does not permit defendants to inform juries of pertinent sentencing provisions. This Article challenges that assumption, suggesting a theory of relevance that could permit a significant number of defendants to present applicable sentencing provisions at trial, without any change to existing statutory or constitutional law.  The admission of such evidence would have implications beyond the trials directly affected.  The widespread introduction of punishment evidence, in concert with juries’ likely adverse reaction to that evidence, could alter the terms of the smoldering political debate concerning this nation’s harsh sentencing laws and the appropriate role of juries in enabling their application.

March 3, 2010 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (18) | TrackBack

NY Times editorial advocates (long overdue) federal crack sentencing reform

This morning's New York Times has this new editorial about crack sentencing reform headlined "Bad Science and Bad Policy."  Here are excerpts:

The federal law that mandates harsher prison terms for people arrested with crack cocaine than for those caught with cocaine powder is scientifically and morally indefensible.  Bills to end the disparity are pending in both the House and Senate.  Democrats who worry about being pegged as “soft on crime” will have to find their backbones and push the legislation through....

The United States Sentencing Commission, which sets guidelines for the federal courts, found several years ago that more than 80 percent of those imprisoned for crack offenses were black.

The tough sentencing guidelines also drive drug policy in the wrong direction — imprisoning addicts for years when they could be more cheaply and effectively treated in community-based programs.  An analysis by Senator Richard Durbin, a Democrat of Illinois, estimates that ending the sentencing disparity could save the country more than a half-a-billion dollars in prison costs over the next 15 years.

In the House, a bill that ends the disparity has been voted out of committee but has yet to go to the floor.  The Senate bill is having trouble attracting support, including from Democrats.  It is time to finally put aside crack myths and hysteria.  This isn’t a question of being soft on crime. It is an issue of fairness and sound public policy.

March 3, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (10) | TrackBack

March 2, 2010

Could there be five votes for only "partial" incorporation of the Second Amendment?

I have only so far had a chance to skim part of the oral argument transcript from today's McDonald Second Amendment case (which is available here).  But I have already been intrigued and pleased to see that, during the arguments, Justice Stevens discussed at some length the idea that the Second Amendment might only be partially incorporated against the states. 

I find this idea especially intriguing and pleasing because I filed this McDonald amicus brief (together with two terrific students from my Second Amendment seminar) which developed a partial incorporation argument with a special emphasis on the special challenges facing localities in the arena of gun regulation.  Here is the opening substantive paragraph from this amicus brief:

District of Columbia v. Heller clarified that the Second Amendment protects an individual right “to keep and bear arms,” and this case presents this Court’s first opportunity to consider not just whether, but also how, this right is to be incorporated against states and localities.  Though “jot for jot” incorporation became the modern norm for how most constitutional rights will be applied to states and localities, the Court has sometimes taken an alternative approach to the incorporation of certain Bill of Rights provisions.  For example, though the Sixth Amendment jury trial right has been incorporated against the states, the unanimity requirement applied in federal court does not apply to state criminal justice systems. Similarly, First Amendment doctrines are in various ways expressly attentive to distinctive state and local standards and to distinctive state and local concerns.  The modern development of Second Amendment jurisprudence in the wake of Heller should likewise include a formal and express recognition of distinct state concerns and it should be especially attentive to the unique public-safety interests and distinctive structural dynamics surrounding the regulation of firearms by localities.

Though I doubt that Justice Stevens will succeed in getting five votes for a partial incorporation approach to the Second Amendment, I am excited that these ideas are getting some serious play.

March 2, 2010 in Second Amendment issues | Permalink | Comments (4) | TrackBack

Notable First Circuit ruling on CVRA appeals and orders of restituion

A First Circuit panel has today handed down a notable ruling concerning crime victim rights and appellate procedures under the CVRA in US v. Aguirre-González, No. 08-1276 (1st Cir. Mar. 2, 2010) (available here). Here is the panel's own summary of its work:

We asked the parties to brief a series of questions pertaining to the right of crime victims to seek appellate review of restitution orders imposed as part of a defendant's criminal sentence. After careful consideration, we hold as follows.  First, a petition for a writ of mandamus under the CVRA is the exclusive mechanism for appellate review of sentencing orders affecting crime victims' rights. Next, the 72-hour time limit for mandamus review imposed by the CVRA is precatory, not mandatory, such that appellate courts retain authority, in appropriate circumstances, to consider petitions after the expiration of that deadline.  Nonetheless, in this case, we do not exercise our discretion to convert appellant's direct appeal into a mandamus petition, as consideration of the petition on the merits at this late date would be fruitless in light of the CVRA's express concern for finality in criminal sentencing orders.  Accordingly, we have no need to address what standard of review applies to timely mandamus petitions under the CVRA.

March 2, 2010 in Criminal Sentences Alternatives, Sentences Reconsidered, Victims' Rights At Sentencing | Permalink | Comments (0) | TrackBack

Interesting Third Circuit gun forfeiture case involving the Eighth Amendment

Though the major gun buzz today is all about the Supreme Court's consideration of the Second Amendment's impact on Chicago's gun ban, a panel of the Third Circuit today has an interesting ruling involving guns and the Eighth Amendment in US v. Cheeseman, No. No. 09-1756 (3d Cir. Mar. 2, 2010) (available here).  Here is how it starts:
Appellant, James L. Cheeseman, pled guilty to violating 18 U.S.C. § 922(g)(3), which criminalizes possession of firearms and ammunition by an unlawful user or addict of a controlled substance. He appeals from the District Court’s judgment directing the forfeiture of over 600 firearms and ammunition enumerated in Count I of the indictment to which he pled guilty.  Cheeseman raises two arguments on appeal.  He first contends that forfeiture pursuant to 18 U.S.C. § 924(d)(1) was improper because the property was neither “involved in” nor “used in” a knowing violation of 18 U.S.C. § 922(g)(3).  Alternatively, Cheeseman argues that forfeiture of his property violates the Excessive Fines Clause of the Eighth Amendment. Because we find that the firearms and ammunition specifically identified in Count I of the indictment were involved in Appellant’s § 922(g)(3) violation, and because we conclude that the forfeiture of Cheeseman’s property was not grossly disproportionate to the gravity of the § 922(g)(3) offense, we will affirm the District Court’s Order of Forfeiture.

March 2, 2010 in Criminal Sentences Alternatives, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Prosecutors urged lighter sentence in 2000 for sex offender suspected in missing California teen case

A helpful reader forwarded to me this new AP story, which is headlined "Man in Calif. teen case got light sentence in 2000," that provides an interesting sentencing backstory to the latest missing teen case generating the usual cable crime news buzz. Here is how the piece begins:

A sex offender suspected in the disappearance of Chelsea King served only five years in prison for molesting a girl a decade ago after prosecutors rejected a psychiatrist's advice to seek a stiffer punishment, court documents state.

Prosecutors said in 2000 that John Albert Gardner III's lack of significant prior criminal record justified less than the maximum sentence for molesting a 13-year-old girl. They also said they wanted to "spare the victim the trauma of testifying."

The San Diego Union-Tribune said Tuesday that Gardner had faced a maximum of nearly 11 years in prison under terms of his plea agreement. Prosecutors urged six years — the sentence later ordered by a judge.

March 2, 2010 in Sex Offender Sentencing, Who Sentences? | Permalink | Comments (21) | TrackBack