Sentencing Law and Policy

Constitutional questions over Florida's drug offenses on fast track to state's Supreme Court

This local article, headlined "Florida Supreme Court to decide drug law's constitutionality," reports on an important development in the constitutional litigation concerning the Sunshine State's drug crimes. Here are the details:

On Wednesday, the state's 2nd District Court of Appeal issued an order asking the Florida Supreme Court immediately to resolve an issue that has sprung up in courtrooms statewide in recent months: whether Florida's Drug Abuse Prevention and Control law violates the due process clause of the U.S. Constitution's 14th Amendment. If the court strikes down the statute, the ruling would likely overturn thousands of convictions and exonerate hundreds of people recently charged with drug crimes.

In the past 31 years, only about a dozen times has the appellate court deemed an issue so important that it sent the case directly to the Supreme Court and requested an immediate ruling. The appellate court's order was in response to a recent ruling by Tampa-area Circuit Judge Scott M. Brownell, who earlier this month decided the law was unconstitutional.

"Until this important constitutional question is resolved by the Florida Supreme Court, prosecutions for drug offenses will be subject to great uncertainty throughout Florida," the appellate court opinion read. "It will be difficult to reach a final resolution in many of these cases until the issue is resolved."

Under the statute, which was created by the Florida Legislature in 2002, defendants can be convicted of a felony merely by possessing an illegal drug, regardless of what they meant to do with it or if they even knew what they had was illegal. Brown and other lawyers have argued that stipulation makes the statute unlawful. At least three Florida judges — one in federal court and two at the circuit level — recently ruled that the law was invalid.

In almost every case brought before circuit courts, prosecutors have argued that judges must rule that the statute is valid because two district courts of appeal — including the 2nd — had previously determined that the law is constitutional.

Recent related posts: 

• "Federal Judge Rules Florida’s Drug Laws Unconstitutional"
• State judge finds Florida drug law unconstitutional
• WSJ takes note of the mess that is Florida's (now unconstitutional) criminal drug laws

New NY parole law changes considerations for infamous murderer

Today's New York Law Journal has this interesting new article headlined "Law Requires Board to Access Rehabilitation in Parole Rulings," which starts this way:

Nearly half a century after the Kitty Genovese murder shocked the conscience of New York City and became a national symbol of urban apathy, her killer is coming up for parole for the 15th time. But this year the deal is a bit different for Winston Moseley, her assailant.

For the first time since he became eligible for parole in 1984, Mr. Moseley will appear before a parole board that now is being directed to look beyond his crime and criminal record, and consider if the 76-year-old who committed hideous crimes 47 years ago is the same person seeking freedom.

Nestled into budget legislation this year was a revision of Executive Law §259(c) that requires the parole board to establish and apply "risk and needs principles to measure the rehabilitation of persons appearing before the board" and the likelihood of success should the offender be released.  In the past, the board "could" consider those factors; as of today it "must" consider them.

Mr. Moseley will be among the first inmates evaluated under the revised system when he meets the parole board the week of Oct. 31.  Advocates who have long promoted parole reform are watching the process closely.  "We have always had a list of factors the board was supposed to consider, such as the seriousness of the crime, criminal history and participation in [rehabilitative] programs," said Philip M. Genty, a professor at Columbia Law School and director of its Prisoners and Families Clinic who has written about the new law for the New York Law Journal ("Changes to Parole Laws Signal Potentially Sweeping Policy Shift," Sept. 2).

The new law requires the parole board to adopt procedures that incorporate a growing body of social science research about assessing post-release needs and recidivism risks, according to Mr. Genty.  "The devil is in the details and it will depend on what regulations actually get written, but the change both rationalizes and modernizes the parole laws in ways that are long overdue," said Mr. Genty.

Another notable example of a (seemingly massive) white-collar sentencing trial penalty

This press report on a set of federal fraud sentencings in Virgina highlights, yet again, what a steep sentencing price some federal white-collar defendants will end up paying if they exercise the right to go to trial and get convicted.  Here are the basics from this press report:

Two Houston men have been sentenced to lengthy jail terms for their part in a $100-million life settlement fraud scheme that victimized 800 victims people the U.S. and Canada.

Adley H. Abdulwahab, 36, a hedge fund manager and part owner of A&O Resource Management Ltd., was sentenced to 60 years in prison.  Co-founder and vice president of A&O, Christian Allmendinger, 40, was sentenced to 45 years in prison.  Many of the victims were looking for safe, conservative investments but lost their entire retirement savings, said U.S. Attorney for the Eastern District of Virginia Neil H. MacBride.

"These defendants used the savings of their unsuspecting, often elderly, investors to live the high life—luxury houses, fancy cars and even a 15-karat diamond ring," said Assistant U.S. Attorney General Lanny A. Breuer.  "Having wiped out the life savings of many of their victims and stolen funds marked for retirement, Mr. Abdulwahab and Mr. Allmendinger appropriately now face significant prison terms."...

Five others in the scheme, including David White, 41, the former president of A&O, who received 60 months in jail, were sentenced after pleading guilty.  Abdulwahab and Allmendinger were found guilty at trial.

The principals at A&O misrepresented such things as A&O's prior success, its size and office locations, its number of employees, the risks of its investment offerings and its safety and use of investor funds, according to court and trial records.  When regulators began looking into the investment scheme, the principals invented two sham companies to hide behind, Blue Diamond and Physician's Trust, court records say.

I do not know any details about this fraud or about the relative roles of the various defendants.  Still, the passage I have highlighted above reports that the president of the corrupt company got a sentence of only 5 years after having pleaded guilty, while the defendants who went to trial received, in essence, LWOP sentences. 

I ass assume that the defendant who pleaded guilty got lots of sentencing credit and benefits for accepting responsibility and (I assume) helping secure the convictions of the other fraudsters.  But still, the remarkable gap between a post-plea sentence of 5 years and the post-trial sentences of 60 and 45 years for (I assume) roughly the same fraudulent behavior provides yet another stark reminder of the extraordinary sentencing consequences than can flow from putting the federal government to its budern of proof at trial in a white-collar case.

"Dead man appeals his murder conviction"

The title of this post is the headline of this remarkable story from the Seattle Times.  Here are the details:

A convicted killer who committed suicide four days after he was sentenced to life in prison is appealing his case from the grave — at taxpayers' expense.

Christopher Harrison Devlin, a 57-year-old long-haul truck driver, was convicted a year ago of killing a man who had been set to testify against him in an assault trial, and was sentenced to life in prison. Devlin's attorneys immediately appealed his conviction. But on Sept. 20, 2010, Devlin was found dead of an overdose in his Spokane County Jail cell.

Despite his death, Devlin's attorneys and his sister, who had herself appointed trustee of his estate, are moving ahead with the appeal in hopes of clearing his name. They also insist the state should pay for it because Devlin was broke when he died. "She believed he was innocent and unless she continued his appeal, his innocence wouldn't be established," said Robert Lamp, a Spokane probate attorney who represents Leslee Devlin, of New York City. Leslee Devlin could not be reached for comment.

For nearly a century, under a common law known as abatement ab initio, convictions like Devlin's were automatically dismissed in Washington and most other states if the defendant died before sentencing or before exhausting all of his appeals. In 2006, for example, a federal judge in Texas tossed out former Enron chief Kenneth Lay's convictions for conspiracy, securities fraud and wire fraud because he died before sentencing.

But Gregory Link, an attorney for Devlin, contends that a recent decision by the state Supreme Court, which overruled abatement ab initio in a Seattle case, should clear the way for the appeal to move forward. And since Devlin's estate is insolvent, Link said, the appeal should be funded by the state.

On the other side is Mark Lindsey, senior deputy Spokane County prosecutor, who insists that Devlin's constitutional rights are not transferrable to another person after his death. "The right to appeal a criminal conviction is solely for an individual," said Lindsey. He also opposes efforts to have the state pay for the appeal, which he estimates could cost tens of thousands of dollars.

Effective NY Times editorial assailing mandatory minimum sentencing laws

Today's New York Times has this effective editorial criticizing mandatory minimum sentencing provisions headlined "An Invitation to Overreach."  Here are excerpts:

The rise in mandatory minimum sentences has damaged the integrity of the justice system, reduced the role of judges in meting out punishment and increased the power of prosecutors beyond their proper roles.

A Times report this week shows how prosecutors can often compel suspects to plead guilty rather than risk going to trial by threatening to bring more serious charges that carry long mandatory prison terms.  In such cases, prosecutors essentially determine punishment in a concealed, unreviewable process — doing what judges are supposed to do in open court, subject to review.

This dynamic is another reason to repeal mandatory sentencing laws, which have proved disastrous across the country, helping fill up prisons at a ruinous cost.  These laws were conceived as a way to provide consistent, stern sentences for all offenders who commit the same crime.  But they have made the problem much worse.  They have shifted the justice system’s attention away from deciding guilt or innocence.  In giving prosecutors more leverage, these laws often result in different sentences for different offenders who have committed similar crimes.

Mandatory minimums have created other problems.  As the United States Sentencing Commission concluded, such sentences have fallen disproportionately on minorities.... These laws have helped fill prisons without increasing public safety.  In drug-related crime, a RAND study found, they are less effective than drug treatment and discretionary sentencing.

The American Bar Association, the Judicial Conference of the United States and every major organization focusing on criminal justice opposes mandatory minimum sentences. The federal and state governments should get rid of them — and the injustices they produce.

What do Second Amendment and states' rights fans think about feds latest gun memo?

As detailed in this new AP piece, which is headlined "ATF: Illegal to sell guns to med marijuana users," a new memo/letter from the feds restates the US Justice Department's view that gun dealers violate federal law if and when they sell a firearm to anyone who uses medical marijuana consistent with state law.  Here are excerpts from the AP report:

Federal law already makes it illegal for someone to possess a gun if he or she is "an unlawful user of, or addicted to" marijuana or other controlled substances. A Sept. 21 letter from the Bureau of Alcohol, Tobacco, Firearms and Explosives, issued in response to numerous inquiries from gun dealers, clarifies that medical marijuana patients are included in that definition....

"There are no exceptions in federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by state law," said the letter by Arthur Herbert [available here], the ATF's assistant director for enforcement programs and services....

The clash between state and federal drug laws has led to lawsuits and criminal cases in some of the 16 states that have legalized medical marijuana use. Officials in two Oregon counties have said they'll appeal to the U.S. Supreme Court after state judges said sheriffs couldn't deny concealed handgun licenses for medical marijuana patients.

The Oregon Court of Appeals and the Oregon Supreme Court said the state law that authorizes concealed handgun permits is separate from the federal law that outlaws gun possession by drug users, and the state gun law doesn't address medical marijuana use.

Federal authorities also raided dozens of medical marijuana operations across Montana this spring, chilling a once-booming pot industry and leading to sweeping changes in Montana law. The Department of Justice followed up with a warning letter to political leaders in many states that federal prosecutors will pursue marijuana distributors but not individual patients who are following state law....

Pro-marijuana and gun groups said the policy clarification amounts to rescinding the gun rights for the thousands of people licensed to use medical marijuana laws. And it appears to contradict a 2009 Department of Justice memo that said the Obama administration would not pursue prosecution of individual medical marijuana users who obey state laws.

Besides that, the government is putting an additional burden on gun dealers to police their customers, said Montana Shooting Sports Association Gary Marbut. "Their business is to be merchants, not to be cops. Unfortunately, the federal licensing scheme complicates that," Marbut said. "It sounds as if the (ATF) is expecting them to drift further into the cop role."

I would be very interested to hear what various Republican candidates for president would have to say on this issue, especially Rick Perry and Michele Bachmann given their vocal support for the Second Amendment and for states' rights.

A few related posts:

• "Medical marijuana users fight for gun rights"
• Oregon Supreme Court says federal law does not allow denial of local gun permits for state marijuana users
• Why the Second Amendment is not (and should never be?) "part of normal constitutional law"
• "The Standardless Second Amendment"
• Ninth Circuit rejects Second Amendment attack on criminalizing drug addict gun possession

Justice Stevens indicates he was wrong to uphold special Texas approach to death sentencing

This new ABC News report on a George Stephanopoulos interview with former SCOTUS Justice John Paul Stevens provides this interesting account of the Justice's latest thinking about various death penalty matters.  Here is how the piece starts:

Retired Justice John Paul Stevens is a man of few regrets from his nearly 35 years on the Supreme Court, except one – his 1976 vote to reinstate the death penalty.   “I really think that I’ve thought over a lot of cases I’ve written over the years.  And I really wouldn’t want to do any one of them over…With one exception,” he told me.  “My vote in the Texas death case.   And I think I do mention that in that case, I think that I came out wrong on that,” Stevens said.

At the time he thought the death penalty would be confined “to a very narrow set of cases,” he said.  But instead it was expanded and gave the prosecutor an advantage in capital cases, according to Stevens.   The retired associate justice has been an outspoken opponent of the death penalty, but his admission of that 1976 Jurek v. Texas vote comes at a time when the country appears to be revisiting its stance on the death penalty, in light of Troy Davis’ execution last week.

He writes in his book, “Five Chiefs,” that he regretted the vote “because experience has shown that the Texas statute has played an important role in authorizing so many deaths sentences in that state.”

In a recent Republican presidential debate there was a burst of applause after the moderator mentioned the 234 executions that occurred under Gov. Rick Perry.  Stevens said he was “disappointed” when he saw that reaction.   “Maybe one believes, and certainly a lot of people sincerely do, that it is an effective deterrent to crime and will in the long run will do more harm than good.   I don’t happen to share that view,” he said. “But there are obvious people who do.   And, of course, being hard on crime has been --always is politically popular, let’s put it that way.”

I interpret these comments as an indication that Justice Stevens still believes a narrow capital statute and a well-designed death sentencing process remains constitutional, but that he also has concluded that Texas legislators (and those of other states?) have failed to ensure their capital statute is sufficiently narrow and that their death sentencing process is well-run.

"Evolving Standards of Reasonableness: The ABA Standards and the Right to Counsel in Plea Negotiations"

The title of this post is the title of this timely new paper by Margaret Colgate Love now available via SSRN. Here is the abstract:

The ABA Criminal Justice Standards have been recognized by the Supreme Court as one of the most important sources for determining lawyer competence in Sixth Amendment right to counsel cases.  Because the constitutional test is whether defense counsel’s performance was “reasonable” under “prevailing professional norms,” it is necessarily an evolving one.  Padilla v. Kentucky underscores the defense bar’s stake in participating in the ABA standard-setting process to guide the development of their obligations in plea negotiations. In addition, to the extent the courts give the ABA Standards credence in judging ineffective assistance claims, they can be powerful catalysts for changing the behavior of other actors in the plea process, as well as system norms.  The Standards can also be leveraged to help the defense bar gain access to the additional resources necessary to comply with the constitutional obligations of defense lawyers post-Padilla.

Two developments give this problem particular urgency: One is the proliferation of status-generated “collateral” penalties affecting every activity of daily life, penalties that are frequently more severe than any sentence potentially imposed by the court.  The other is the broad applicability of these collateral penalties to misdemeanants and other minor offenders who in the past would have been spared the reduced legal status and stigma reserved for convicted felons.

Part I of this Article analyzes the Supreme Court’s treatment of the ABA Standards in Sixth Amendment cases, and Part II discusses the manner in which the Standards are developed and approved as ABA policy.  Part III describes the provisions of the Standards that govern plea negotiations, and proposes their expansion in light of the new mandate given defense lawyers by Padilla.  It concludes by urging greater defender participation in the Standards process to shape how the Sixth Amendment standard evolves, and to maximize Padilla’s systemic effect.

Arizona locality approves ordinance banning sex offenders from all public facilities

As detailed in this local story, which is headlined "Huachuca City bans sex offenders from public facilities," a locality in Arizona has enacted a uniquely broad ban on sex offenders in public spaces.   Here are the details:

In a bold and unprecedented move for an Arizona jurisdiction, the town of Huachuca City is cracking down on registered sex offenders by banning them from all public facilities. Mayor and council unanimously approved the ordinance last Thursday, which is set to take effect late October.

“As a town and as a community, we have to protect our children. As a council, we have to make the right calls,” Mayor Byron Robertson told KGUN9 News. “Our police chief indicated that we were having a serious problem with some pedophiles that were being a nuisance and we took steps to overcome that.”

The ordinance creates “child safety zones,” by banning all registered sex offenders from schools, parks, libraries, pools, gymnasiums, sports fields and sports facilities. Sex offenders must pay $100 fine per violation; repeat offenders will be charged with trespassing.

Police say they’ll rely on tips from the community as well as heavy patrolling to enforce the ordinance. “I don’t want to make it sound like Big Brother is watching, but we do have a file on sex offenders in the area, complete with photographs, so our officers will hopefully recognize them,” said Lt. Jennifer Fuller, a spokesperson for the Huachuca City Police Department.

Fuller said the impetus for the ordinance stems from a recent incident, in which a registered sex offender spent time loitering around the public pool and taking photographs, making parents and children uncomfortable....

There are exceptions: Sex offenders may enter public facilities to pick up their children, vote in an election, or to discuss with someone their kids’ health or education.

"As Federal Crime List Grows, Threshold of Guilt Declines"

The title of this post is the headline of this lengthy article from yesterday's Wall Street Journal.  Here are excerpts:

Back in 1790, the first federal criminal law passed by Congress listed fewer than 20 federal crimes. Today there are an estimated 4,500 crimes in federal statutes, plus thousands more embedded in federal regulations, many of which have been added to the penal code since the 1970s.

One controversial new law can hold animal-rights activists criminally responsible for protests that cause the target of their attention to be fearful, regardless of the protesters' intentions.  Congress passed the law in 2006 with only about a half-dozen of the 535 members voting on it.

Under English common law principles, most U.S. criminal statutes traditionally required prosecutors not only to prove that defendants committed a bad act, but also that they also had bad intentions. In a theft, don't merely show that the accused took someone's property, but also show that he or she knew it belonged to someone else.  Over time, lawmakers have devised a sliding scale for different crimes.  For instance, a "willful" violation is among the toughest to prove.

Requiring the government to prove a willful violation is "a big protection for all of us," says Andrew Weissmann, a New York attorney who for a time ran the Justice Department's criminal investigation of Enron Corp.  Generally speaking in criminal law, he says, willful means "you have the specific intent to violate the law."     A lower threshold, attorneys say, involves proving that someone "knowingly" violated the law.  It can be easier to fall afoul of the law under these terms.

In one case, Gary Hancock of Flagstaff, Ariz., was found guilty in 1999 of violating a federal law prohibiting people with a misdemeanor domestic violence record from gun ownership. At the time of his domestic-violence convictions in the early 1990s, the statute didn't exist—but later it was applied to him. He hadn't been told of the new law, and he still owned guns. Mr. Hancock was convicted and sentenced to five years' probation.

His lawyer, Jane McClellan, says prosecutors "did not have to prove he knew about the law. They only had to prove that he knew he had guns." Upholding the conviction, a federal appellate court said that "the requirement of 'knowing' conduct refers to knowledge of possession, rather than knowledge of the legal consequences of possession."

In 1998, Dane A. Yirkovsky, a Cedar Rapids, Iowa, man with an extensive criminal record, was back in school pursuing a high-school diploma and working as a drywall installer. While doing some remodeling work, Mr. Yirkovsky found a .22 caliber bullet underneath a carpet, according to court documents. He put it in a box in his room, the records show.

A few months later, local police found the bullet during a search of his apartment. State officials didn't charge him with wrongdoing, but federal officials contended that possessing even one bullet violated a federal law prohibiting felons from having firearms. Mr. Yirkovsky pleaded guilty to having the bullet. He received a congressionally mandated 15-year prison sentence, which a federal appeals court upheld but called "an extreme penalty under the facts as presented to this court." Mr. Yirkovsky is due to be released in May 2013....

Overall, more than 40% of nonviolent offenses created or amended during two recent Congresses — the 109th and the 111th, the latter of which ran through last year — had "weak" mens rea requirements at best, according to a study conducted by the conservative Heritage Foundation and the National Association of Criminal Defense Lawyers. The study, one of the few to examine mens rea, was extended to include the most recent Congress at the request of The Wall Street Journal.

Earlier this year, Justice Antonin Scalia, in a dissent from a Supreme Court decision upholding a firearms-related conviction, wrote that Congress "puts forth an ever-increasing volume" of imprecise criminal laws and criticized lawmakers for passing too much "fuzzy, leave-the-details-to-be-sorted-out-by-the-courts" legislation.

Lawmakers on both sides of the aisle worry about the weakening of mens rea. "Over my six years in Congress there have been many times when in discussions with members of Congress I say, 'Look, I know you want to show people how serious you are about crime, but don't put anything on the books that doesn't require criminal intent,'" says Rep. Louie Gohmert, (R., Tex.) a former state judge who wants the federal system reworked....

F. James Sensenbrenner, a Wisconsin Republican and chairman of the House crime subcommittee, said he wants to clean up the definition of criminal intent as part of a broader revamp of the criminal-justice system. There are crimes scattered among 42 of the 51 titles of the federal code, with varying standards of criminal intent. Still others are set by court decisions. "How the definition of mens rea is applied is going to be one of the more difficult areas to figure out a way to fix," he said.

The WSJ also has this very cool and very useful "Interactive Graphic", headlined "Tracking the Growth of Federal Criminal Sentences" which makes it much easier and much more fun to understand and assess federal sentencing patterns than anything I have ever seen put together by the US Sentencing Commission.

Florida poised to get back to the business of lethal injections

As detailed in this Reuters article, which is headlined "Florida set to execute man for 1978 police killing," the Sunshine State appears close to resume executions after a significant hiatus prompted by lethal injection challenges. Here are the details:

A man convicted of killing a Coral Gables police officer in 1978 is scheduled to die on Wednesday, the first inmate in Florida to be executed since the state changed its lethal injection procedure.

Barring a last-minute reprieve, Manuel Valle, 61, will be administered a lethal series of drugs at 4 p.m. local time at Florida State Prison near Starke. He will be the first inmate executed in the state since Republican Governor Rick Scott took office in January.

Attorneys for Valle have filed a number of unsuccessful appeals, many of them arguing that the state's mode of execution is unconstitutionally cruel.  Earlier this year, Florida prison officials substituted one of the drugs used in the three-drug protocol after its Dutch manufacturer stopped making the product to protest its use in executions.

In August, the Florida Supreme Court unanimously rejected arguments by Valle's attorneys that the substitution of pentobarbital into the procedure would not render their client unconscious, thus subjecting him to undue pain and suffering when the next two drugs were administered.  In an opinion that cleared the way for future executions using pentobarbital, the court said it found no credible evidence that administering the drug at 10 times the normal sedation dosage would not render Valle unconscious....

Valle was sentenced to death in 1981 for the murder of Coral Gables Officer Louis Pena, gunned down after stopping Valle's car.  Valle was originally scheduled to die August 2, but the execution was postponed to allow for a hearing on his concerns about the new drug. Valle would be the 70th inmate executed in Florida since the reinstatement of the death penalty in 1976 and the first since February 2010.

I suspect 33 years from the time of the crime until a state executed an execution has to be something close to a record.  Because many states had to keep revamping their death penalty statutes in response to Supreme Court rulings in the 1970s, I would guess there are now precious few folks still on death row who committed their crime in the 1970s and even fewer likely to ever really face execution.  

I cannot recall another recent execution resulting from a crime committed when disco was popular.  Can anyone confirm or refute my instinct that Florida is about to make history if it now finally gets around to executing someone who has been on its death row for three full decades?

"Megan's Laws as a Case Study in Political Stasis"

The title of this post is the title of this new piece from Professor Wayne Logan now available via SSRN. Here is the abstract:

Sex offender registration and community notification laws, today commonly known as Megan's Laws, are typically seen as consumate products of legislative panic.  Unlike many other panic-driven laws, however, the political forces motivating Megan's Laws have not dissipated, and the laws have grown exponentially over time, despite research casting considerable doubt on their public safety efficacy.  This symposium contribution examines how and why Megan's Laws have endured -- even thrived -- notwithstanding concerns over their utility, and reflects upon their likely continued political impregnability in the years to come.

Defendant sentenced by judge gone bad gets no resentencing relief

As reported in this new Atlanta Journal-Constitution article, a "federal judge on Tuesday emphatically rejected a request by an inmate for a steep sentence reduction on claims he may have been the victim of racial bias from former Judge Jack Camp, who resigned in disgrace because of crimes he committed with a stripper."  Here are the basics:

"Judge Camp did a lot of bad things and he's paying the price," U.S. District Judge Timothy Batten told Mark Anthony McBride.  "But it sure doesn't appear to me this sentence in any way was based on racial animus."

Batten then unloaded on McBride for his crimes, saying he had destroyed lives and orchestrated some of the fraud while living in a halfway house after being released from prison on a previous fraud conviction.

"I think you're a liar, and I think you're a crook," Batten told McBride, who sat at the defense table.  As for the breadth of McBride's fraud, Batten said, "It fits in the category of ‘You've got to be kidding me.' "

Batten said if he, not Camp, had initially been assigned McBride's case he would have given him an additional 40 months behind bars -- the maximum recommended by the federal sentencing guidelines....

As for Camp, at the time he handed down his sentence, Batten said: "I have no idea what was going through his mind. I can't believe he gave you 170 months for this.  It's just unbelievable to me."  Batten then resentenced McBride, 45, of East Point, to the same prison time that Camp gave him, saying he thought it would have been "unfair, but not unjust," to impose a harsher sentence.

DOJ audit of federal clemency process with sound and fury signifying nothing

Over at Pardon Power, P.S. Ruckman has this great new post noting and linking to this lengthy new Justice Department internal reporttitled "See "Audit of the Department of Justice Processing of Clemency Petitions."  Here are highlights from Ruckman's review:

This Report finds that there was a time when the pardon power of the president was not in complete atrophy, but, in recent years very few pardons and commutations of sentence have been granted.  At the same time, the number of petitions has increased and the number of unaddressed petitions in the Office of the Pardon Attorney (backlog) has increased as well.

In the past three years, a record number of clemency applications (over 6,000) have denied - more than the number denied in the previous 13 years! As a result, some have suspected that applications have not been given serious review. Nonetheless, the Report does conclude that the Office of the Pardon Attorney (OPA) -- while having "few written polices and procedures for processing clemency applications" -- utilizes "a reasonable approach" in its investigation of the "merits" of clemency applications and to "develop its recommendations."  It also notes that the current pardon attorney has "increased the number of unpaid law student interns" in his office and brought the OPA support staff to six attorneys....

What the hand-wringing analysis of paper-pushing fails to recognize is the fact that the final decision is the president's and 1 out of ever 2 pardons granted over the last 39 years has been granted in a single month, December.  Why?  This Report sheds no light on the matter at all, at least not directly, or intentionally.  It only notes that petitions were "at the White House," on average, for 9.4 months, before a decision was made.

UPDATE:  The New York Times has this report on the report, which is headlined "Backlog Found in Action on Presidential Pardons," and begins this way: "The president’s power to reduce sentences and grant pardons is infrequently used, and backlogs in responding to clemency petitions are common, according to a new audit report from the Department of Justice."

In addition, Margaret Colgate Love sent me these astute comments on the report:

In focusing only on the efficiency with which clemency petitions are processed, the IG report ignores the quality of advice the President is getting from the Justice Department. For example, the report notes that the Pardon Attorney is handling all commutation petitions himself, without referring them to OPA staff lawyers.   It is hard to see how one lawyer, even assisted by support staff, could possibly have investigated and prepared a meaningful report on the over 3000 prisoner petitions that have been denied by President Obama in the past year.   (The report indicates that another 1000 petitions have been sent forward by the Pardon Attorney, likely to the same fate.)   This goes a long way toward explaining why this President has not granted a single commutation to date.

"Church or Jail? An Alabama Alternative to Incarceration Program on Hold"

The title of this post is the headline of this ABC News report on a controversial local sentencing program first discussed in this recent post.  Here is the latest:

A Bay Minette, Ala., alternative to incarceration program that asks first-time, nonviolent offenders to choose between church or jail, was slated to start today but is being delayed for legal review by city officials, said Bay Minette Mayor Jamie Tillery.

"The city will ask the Alabama Attorney General to review the program as well. The city will reserve further comment until these reviews have been completed," Tillery wrote in an email to ABCNews.com.

The Restore Our Community program, called Operation ROC, was developed for those convicted of first-time misdemeanors, offering them the opportunity to either attend church once a week for a year and answer questions about the services, or go to jail and pay a fine.  Right away, the program sparked controversy.

While Tillery said the first-time misdemeanor offenders would be offered a "menu of options," including community service, the American Civil Liberties Union stepped in to say church should not be among them.  "Even if the city offers other sentencing alternatives that are comparable to Operation ROC, which is far from clear, the First Amendment still prohibits the government from becoming entangled in core religious exercise, which includes attending church," ACLU attorney Heather Weaver told ABCNews.com.  "The government may not serve as a conduit for church recruitment."

The ACLU would continue to investigate ROC, Weaver said, "to determine what additional steps should be taken."  On Monday, the ACLU sent a letter to Tillery, Bay Minette city council members and the chief of police, asking that the city end the ROC program and consider nonreligious alternatives to incarceration.

Both federal and state courts have ruled that government officials "can't make going to church or participating in religious activities part of an offender's probation, parole or sentence," said Weaver....

Judges in Kentucky, Louisiana, Mississippi and Virginia have offered offenders the opportunity to go to church instead of jail, but state courts have ruled those decisions unconstitutional.

If Alabama does permit the ROC program to offer church as an alternative to fines and jail, Weaver said the ACLU might pursue litigation. "We're going to keep all the options on the table at this point," she said.

Recent related post:

• Can a sentencing judge give low-level offenders a choice between jail and church?

Reflections on federal prison costs through the lens of "muffin-gate"

As detailed in this story from The Hill, which is headlined "Grassley keeps pressing on government conference costs," a recent audit indicating that the Justice Department may have (like everyone else) paid too much for hotel food continues to be a source of inside-the-beltway buzz.  Here are the basics:

Muffin-gate isn’t going anywhere.  Sen. Chuck Grassley (R-Iowa) is pressing the Obama administration for more answers on federal conference expenses, following last week’s audit that found the Justice Department paid $16 a muffin, as well as other exorbitant prices, at recent agency gatherings.

In a message sent Monday [available here], Grassley specifically asks Jacob Lew, President Obama’s budget director, why Justice’s conference spending rose by more than 50 percent from 2008 to 2009, the first year of the Obama administration.

“As I have been saying, this kind of spending is unacceptable given the economic realities most Americans are facing right now,” wrote Grassley, the ranking member on the Senate Judiciary Committee.  Grassley has been one of the leading critics of the government’s conference spending in recent days, saying on Thursday that heads needed to roll within the executive branch....

But the Justice Department –- as well as Hilton Hotels, which served the muffins in question –- have also pushed back against the report.  In a statement, Hilton said that, as if often the case, the receipt for the event discussed in the audit didn’t tell the whole story.  In fact, the hotel chain said, it served muffins, fruit, coffee and juice, as well as tax and gratuity, for $16 a person.  A Justice spokeswoman seconded Hilton’s take on the event, saying in a statement last week that “the abbreviated banquet checks did not reflect all of the food and services provided.”

While I am pleased to see that at least one Senator has enough time to double-check that DOJ is not wasting money on muffins, I continue to be disappointed (but not surprised) that nobody on Capitol Hill seems too concerned with the recent DOJ account (in its recent letter to the USSC) of how expensive and overcrowded federal prisons are right now.  Every single one of the 217,000+ prisoners in the federal system — more than half of whom are there serving time for federal drug offenses —  are each costing the American taxpayer $70 per day every day.  Some (much? most?) of that considerable federal prison expense — which totals more than $15 million every single day — is not obviously much more beneficial to the public than a few $16 muffins.

Of course, exploring whether taxpayers' money was wasted on some muffins scores political points; exploring whether taxpayers' money is wasted on keeping federal offenders in prison long than needed to serve public safety requires dealing with a lot of chalenging issues of public policy.  I guess we should not be surprised what ends up garnering congressional attention these days.

Following Ohio Parole Board's recommendation, Gov Kasich commutes another murderer's death sentence

As detailed in this Columbus Dispatch article, which is headlined "Kasich spares killer's life; Governor cites abusive childhood in decision to alter death sentence," the Governor of the state of Ohio is making modern history through regular use of his clemency powers to spare the lives of condemned murderers. Here are the details of the latest notable act of clemency by Republican Governor John Kasich:

Convicted killer Joseph Murphy has a list of people to thank for sparing his life — Gov. John Kasich, the Ohio Parole Board, his public-defender attorneys. But perhaps more than anyone else, Murphy may owe his life to Ohio Supreme Court Judge Thomas J. Moyer, whose words played a pivotal role — even though he died 17 months ago.

Yesterday, Kasich commuted Murphy’s death sentence to life without the possibility of parole. Murphy, 46, was to have been executed on Oct. 18 for the 1987 murder of Ruth Predmore, a 72-year-old widow from Marion, Ohio. The governor concurred with an 8-0 parole-board recommendation that Murphy should not be executed, largely because of his abused, neglected childhood growing up in Ohio and West Virginia.

Moyer, a Republican, was the longest-serving state chief justice in the U.S. at the time of his death on April 2, 2010. He was a conservative jurist not easily swayed to support inmate arguments in death-penalty cases, his colleague, former Justice Herbert Brown, recalled at a clemency hearing two weeks ago.

That made Moyer’s dissent even more striking in a 4-3 Ohio Supreme Court decision in 1992 supporting Murphy’s death sentence. “In all of the death penalty cases I have reviewed, I know of no other case in which the defendant, clearly guilty of the crime as the defendant is here, was as destined for disaster as was Joseph Murphy as a direct result of the conditions to which he was exposed by his family,” Moyer wrote in opposing death for Murphy.

Murphy’s attorneys highlighted the late chief justice’s comments in their presentation to the parole board; the board echoed the quote in its favorable recommendation to the governor; and Kasich repeated Moyer’s words in his clemency decision.

Calling Predmore’s murder “heinous and disturbing,” Kasich said that despite a traumatic childhood, Murphy deserves severe punishment. But the governor said he agreed that considering Murphy’s “brutally abusive upbringing and the relatively young age at which he committed this terrible crime, the death penalty is not appropriate in this case.  Thus, I have commuted his sentence to life in prison with no chance for parole. I pray for peace for all who have been impacted by this crime.”...

It was the second time this year that Kasich commuted a killer’s death sentence. In June, he granted clemency to Shawn Hawkins, 42, of Cincinnati, because the details of his role in a drug-related double slaying were “frustratingly unclear.”  Like Murphy, Hawkins’ sentence was commuted to life without parole.

Not only has Governor Kasich recently commuted two death sentences, he also granted clemency earlier this month to Kelley Williams-Bolar, the Akron mom who fraudulently enrolled her kids in a different school district (basics here).  Cheers to Governor Kasich and his staff for understanding the importance and potency of his clemency authority, and jeers to the media and the usual criminal justice pundits if they fail to recognize and laud Ohio's Governor for his now already impressive clemency record.

I am not sure whether to be incredibly proud or deeply troubled that Ohio's Governor Kasich has now in the last three months made more profound and effective use of his state clemency authority in just the last three months than US President Barack Obama has in over the last three years.  I am sure that this latest capital commutation, and the broader story of Governors making good use of clemency powers, merits a lot more attention than it is likely to receive from either the media of the punditry.

Recent related posts:

• Ohio board recommends clemency for murderer based on his "deprived history"
• Ohio Governor Kasich grants clemency to help mom who fraudulently registered school kids
• "Kasich commutes convicted killer's sentence to life without parole"

California counties usefully struggling through what to do with incoming inmates

This new front-page article in the Sacramento Bee, headlined "Here come the inmates -- county debates where scarce funding should go," documents the productive incarceration debates and challenges now facing localities in the wake of the California state prison population reduction plans.  Here are excerpts:

In less than two weeks, Sacramento County will start assuming responsibility for thousands of inmates and parolees now watched over by the state.  The pending shift has touched off a debate within the county over how to spend millions of dollars also coming from the state -- whether to create more jail beds or fund treatment programs aimed at keeping convicts from offending again.

The state budget approved earlier this year gave counties responsibility for lower-level offenders released from prison or sentenced under new requirements.  Counties will get offenders convicted of crimes called the "triple-nons": nonserious, nonviolent and nonsexual.

Sacramento County expects to receive about 200 parolees and newly sentenced offenders next month. When the transition is complete in four years, the county can expect responsibility for 2,300 additional inmates and parolees....

County law enforcement officials have spent months discussing how to divvy up $13.1 million the county will receive from the state for this year.  They don't expect to take a plan to the Board of Supervisors for final approval until late October....

Counties with completed plans have taken different approaches.  In Fresno County, where a crowded jail has led to thousands of early releases, officials have decided to use the bulk of their new funds to reopen part of the jail.  San Francisco County plans to spend some of its funding on jails, but most of the money will go to alternatives to incarceration, including drug treatment and work training.

Edward Latessa, a nationally recognized expert on community corrections, told a crowd of California probation officers earlier this year that treatment is more effective than punishment at keeping offenders from committing new crimes.  He also said punishment alone doesn't work.  He said the most effective programs work on changing attitudes -- which is what Sacramento County's Probation Department hopes to achieve with one of its proposals.  The department wants to use cognitive behavioral therapy for offenders who report to a day center.

Such an approach would be more effective than simply putting people in jail, said Don Meyer, the county's chief probation officer.  "This county has been successful at locking people up," he said. "This county has not been successful at stopping the problem (of crime)."...

Gov. Jerry Brown made it a cornerstone of his budget to shift responsibility for lower-level inmates to counties.  Since then, state corrections and county probation officials have pushed for more treatment programs as an alternative to locking people up.  But some Sacramento County officials said they aren't ready to let more offenders out on the street.

Sensible sentencing alternatives for high-profile defendant involved low-level fraud

I want to praise the district judge involved in this notable federal sentencing story, headlined "Former UCA president avoids prison time for fraud," for saving taxpayer money on wasteful prison costs.   Here are the details:

Former University of Central Arkansas president Lu Hardin said Monday that he was hooked on the slots the first time he played them more than a decade ago, and that his gambling compulsion and mounting debts led him to lie to school trustees to tap into bonus money he had been promised.

U.S. District Judge James Moody sentenced the one-time rising political star to five years of probation and 1,000 hours of community service, but no prison time.  Hardin, 60, pleaded guilty earlier this year to falsifying a document that persuaded trustees to give him early access to a $300,000 bonus so he could pay off gambling debts.

Moody said he was convinced Hardin was "genuinely remorseful and humiliated" by his own actions.  Federal sentencing guidelines suggested a sentence of nine to 12 months in prison, but Moody was not bound by that recommendation.

A major factor in Hardin's reduced sentence was his cooperation on a separate federal investigation. Hardin has spoken to the FBI and agreed to testify if the investigation, which a prosecutor would not detail, leads to any charges.  An FBI spokesman also declined to comment.

After a career as an Arkansas state senator and the state's higher education director, Hardin became president of the Conway university in 2002.  During a six-year tenure, he oversaw dramatic growth in the university's enrollment, endowment and prestige.  Trustees approved the $300,000 bonus in full public view....

Only his wife knew about the thousands of dollars of gambling debts he racked up, Hardin said. To pay them off, he made what he called a "horrendous mistake" by forging letters to persuade trustees that he could draw early on the bonus, which was supposed to have been paid to him over five years, according to federal court documents....

Hardin's attorney, Chuck Banks, said his client is a "model person" who paid back the almost $200,000 he collected from the scheme on his own.  He argued that Hardin's history of public service and his past medical problems, including a melanoma that left him blind in his right eye, merited leniency.

Moody sided with Banks.  Although Hardin's actions were criminal, he had a history of good behavior and he didn't believe Hardin would commit another crime, Moody said.  As part of his community service, Hardin will be required to continue attending Gamblers Anonymous meetings and to teach classes about fraud.

Hardin was president of UCA for six years before he resigned in 2008 after the scandal broke.  He received a much-criticized $670,000 contract buyout, and became president of Palm Beach Atlantic University in June 2009, but resigned from that job a week before pleading guilty in March....  After pleading guilty, he surrendered his law license and lost his right to vote. 

This is a great example of a low-level white-collar offense in which the direct and collateral consequences of the federal prosecution and conviction are themselves likely sufficient punishment in light of the nature of the crime and history of the offender.  I often believe a very big fine and lots of community service would be both adequate and effective punishment for low-level white-collar frauds, and I wonder if any readers have any problems with a non-prison, below-guidelines sentence in a case like this.

"California To Allow Prisoners To Serve Sentences Online"

The title of this post is the amusing headline of this story in The Onion:

Faced with a mandate to cut the state's prison population by 30,000, the California Department of Corrections and Rehabilitation announced Monday it would begin allowing prisoners to serve their sentences online.

"Inmates are required to log in promptly every morning at 6 a.m.," CDCR secretary Matthew Cate said. "But make no mistake, this is not some online holiday resort prison. Offenders spend at least eight hours a day entering data and can only see visitors in the chat room once a week.  The real advantage of the Internet penitentiary is that it streamlines the entire corrections process, allowing a standard five-year sentence to be completed electronically in as little as three weeks."

Cate added that while there was still a problem with prison rape, inmates could report an assault or any other issue by clicking on the "Ask the Warden" button