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January 4, 2011

Officer killing in Massachusetts stirring debate over parole policies

As highlighted in this Boston Globe story, which is headlined "Outrage, restraint on parole inquiry; Governor, speaker differ on response to officer’s slaying," a high-profile killing by a (now-dead) paroled offender is stirring sentencing policy debate in Massachusetts. Here are the basics:

Governor Deval Patrick, facing widespread anger from police chiefs and victims’ advocates, pleaded for patience yesterday as his administration completes a review of the state Parole Board’s decision to free a violent career criminal who shot and killed a Woburn police officer last week.

House Speaker Robert A. DeLeo, however, expressed outrage at the board’s decision and vowed to make it a “major focus" of legislative action in the new session.

Appearing minutes apart on the third floor of the State House, the two leaders struck dramatically different postures as they spoke for the first time since the parolee, Dominic Cinelli, killed Officer John B. Maguire during a botched robbery of a Kohl’s department store on Dec. 26....

The Cinelli case has incensed many police officers and victims’ advocates, who have said that someone with his long criminal history should never have been freed. Several chiefs have said that the case has seriously shaken public confidence in the state’s parole system.

DeLeo said he was troubled not only that Cinelli was freed but that the Parole Board failed to notify prosecutors before Cinelli’s parole hearing. Cinelli, 57, who was killed during a shootout with Woburn police, had a history of drug problems, and a criminal record dating to his teenage years that included violent robberies and the shooting of a security guard.

But the Parole Board voted 6-0 to release him, saying he had not had disciplinary problems in nearly 10 years, had been performing well in substance abuse treatment programs, and was “conducting his life in a positive manner."

January 4, 2011 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

January 3, 2011

Start your year by writing a commentary for the Federal Sentencing Reporter

Cover Wearing my hat as an editor of the Federal Sentencing Reporter, I am happy to reproduce a solicitation from the journal below (and I am eager to encourage regular readers to put together their views on federal sentencing ASAP):

Seeking Commentaries for Federal Sentencing Reporter Special Issue to provide “Advice for the U.S. Sentencing Commissioners”

Just before adjourning for the holidays, the U.S. Senate finally confirmed President Barack Obama’s nominee for chair of the U.S. Sentencing Commission, U.S. District Judge Patti B. Saris from the District of Massachusetts.  Judge Saris is new to the Commission, and she joins a Commission on which now two-thirds of the members began their service after the Supreme Court’s landmark ruling in Booker transformed the guidelines from mandates to advice.  To welcome the new Chair, the editors of the Federal Sentencing Reporter have decided to create a special Forum Issue to invite judges, lawyers and other sentencing practitioners, legal academics and sentencing researchers, to share “Advice for the U.S. Sentencing Commissioners.”

With the Justice Department recently expressing concern that “federal sentencing practice is fragmenting into ... dichotomous regimes” with some judges regularly following, and some judges regularly disregarding, the guidelines — and with Congress recently reworking drug sentencing through the passage of the Fair Sentencing Act — the new Chair and her fellow Commissioners surely have a sense of the challenges that lie ahead.  We hope that contributors to this special issue of FSR can help provide the Commission with many ideas and proposals for how the Commissioners should tackle these challenges and can best approach their responsibilities.

FSR seeks to publish short commentaries — ranging in length from a few paragraphs to a few pages — on federal sentencing topics in a form that provides “Advice for the U.S. Sentencing Commissioners.”  Commentaries could tackle big structural issues (such as how the Commission might return to its long-dormant guideline simplification project), smaller technical issues (such as how to revise loss calculation rules in the fraud guideline), or any other topic of interest or concern to modern federal sentencing policy and practice.

FSR hopes to publish in its April 2011 issue all proper commentaries submitted by January 18, 2011, and later submissions will be considered as space permits.  Submissions should be sent electronically to sentencinglaw @ gmail.com with a clear indication of the author and the author’s professional affiliation.  All judges, lawyers and other sentencing practitioners, legal academics and sentencing researchers, and any others with an informed interest in federal sentencing law and practice are encouraged to submit a commentary.

January 3, 2011 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

"Will Pot Be Legal By The End Of This Decade?"

The interesting question in the title of this post comes from the headline of this new piece at The Crime Report authored by Stephen Gutwillig, who is California director of the Drug Policy Alliance (which is a national advocacy group that was a big supporter of California's marijuana legalization inititive.  Here are excerpts from the piece:

Easily the most-watched initiative on the 2010 ballot nationwide, Prop. 19 drew 46.5 percent of the vote, a new record for marijuana legalization.  Attracting more than 4.6 million votes, it easily out-polled California’s ill-fated zillionaire Gubernatorial and Senate candidates, Meg Whitman and Carly Fiorina, with a tiny fraction of their extraordinary war chests.

In the wake of the vote, national marijuana reform advocates were immediately heartened, if not emboldened, by the prospects for ending decades of failed, punitive prohibitionist policies.  That’s because Prop. 19 fared surprisingly well in the face of a truly inhospitable electoral climate.

Midterm election voters traditionally skew older and more conservative than the much larger electorate that can be expected to vote in a Presidential election. While there had been hopes that a surge of younger reform-minded voters would defy conventional wisdom, the Prop. 19 campaign didn’t have nearly enough advertising dollars to shift entrenched voting patterns in a state as large as California.

In the face of these structural obstacles, the record-setting 46.5 percent flouted the expectations of most sophisticated political observers in the state.  What’s more, recent polling indicates just how close the marijuana reform issue is to widespread success....[and] Newsweek found that a commanding 70 percent of voters under 30 nationally would support a Prop. 19-style reform in their state.

Even in defeat, Proposition 19 legitimized marijuana legalization as a serious, mainstream political issue. The international media coverage was intense, informed and incessant.  What’s more, last year’s campaign served as a national template for building a new reform coalition that included prominent civil rights organizations and labor unions calling for an end to these wasteful, ineffective policies that also disproportionately target African Americans and Latinos.

As a result, a flurry of marijuana legalization initiatives is already on the drawing board in a number of states, primarily in the West, with an eye toward 2012.  Californians, in particular, are likely to get another crack at ending marijuana prohibition in the nation’s most populous state.  Research on voter attitudes and fundraising will determine just how many initiatives will actually make it to the ballot.

Nevertheless, expect to see marijuana reform efforts bubbling up across the country every two years for some time to come. Prop. 19 has created unprecedented momentum as we enter this new decade.

January 3, 2011 in Drug Offense Sentencing, Elections and sentencing issues in political debates | Permalink | Comments (7) | TrackBack

"Overview of Federal Criminal Cases: Fiscal Year 2009"

The title of this post is the title of this data-filled document produced by the U.S. Sentencing Commission, which is now available via the USSC website.  Here is a snippet from the start of the publication:

The vast majority of the cases reported to the Commission involve an individual defendant.  Over the last decade, the number of these cases has increased every year except one. In fiscal year 2009, the increase was 6.4 percent over the number of such cases in fiscal year 2008.  Cases involving immigration, drugs, firearms, or fraud continue to be the most common federal criminal cases and make up the vast majority of federal felonies and Class A misdemeanors.  These four crime types have been the most common for the last eight fiscal years.  In fiscal year 2009, these cases accounted for more than 80 percent of all cases reported to the Commission.

Immigration offenses continued to be the fastest growing segment of cases in the federal system. In fiscal year 2009, there were 25,927 immigration cases reported to the Commission, an increase of nearly 4,500 cases from the prior fiscal year.  In the last ten fiscal years, the number of cases of this type has increased by 168 percent, while the total federal caseload has grown by less than 50 percent (46.9%).  As a result, the portion of the annual caseload attributable to immigration cases has increased from 17.5 percent in fiscal year 1999 to 32.2 percent in fiscal year 2009. Immigration cases are now the most common serious federal crime.

The number of drug offenses has remained relatively constant for the last five years, although the portion of the criminal caseload attributable to those cases decreased to 30.3 percent in fiscal year 2009 compared with 34.7 percent in fiscal year 2004.  Firearms offenses were 10.2 percent of the caseload in fiscal year 2009, a decrease of 1.7 percentage points over the five-year period.  The proportion of fraud offenses over that period also was relatively stable at 9.5 percent in fiscal year 2009, as compared with 10.6 percent in fiscal year 2004.

January 3, 2011 in Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Empty prison in Virginia a sign of new sentencing and prison times

This effective and lengthy local article, headlined "New $105M Va. prison remains empty," reflects some of the new sentencing and prison times that many states are experiencing as we start a new year.  Here are excerpts:

[F]our months after the Grayson County prison was completed at a cost of $105 million, it sits empty -- the consequence of a declining number of inmates statewide, and a reduction in state dollars to lock them up.

Having a new prison without prisoners is a striking turnabout for Virginia. The state's inmate population of about 38,000 has nearly doubled since 1994, when the General Assembly voted to abolish parole and to embark on a prison-building boom.  In the past two fiscal years, however, the number of inmates has declined for the first time in recent history, dropping by 2.8 percent.

At the same time, the ongoing fiscal crunch has forced the Virginia Department of Corrections to trim its $1 billion budget.  The state has eliminated nearly 2,500 prison beds in the past two years, in part by closing four correctional centers....

It's not unusual for states to shut older prisons as crime drops and public concern shifts to the troubled economy, said Marc Mauer, executive director of the Sentencing Project, a national group that promotes criminal justice reform.  "Corrections over the past 25 years has become an increasingly big component of state budgets, to the point that it's competing for funding with education and other core services," Mauer said. "And you can't have it both ways anymore."  What's more unusual, he said, is for a brand-new prison like the one in Grayson County to be mothballed....

[C]rime in Virginia is declining, a trend that began well before the three new prisons were ready to accept inmates. "Prior to 2002, historical trends showed growth," Larry Traylor, a spokesman for the Department of Corrections....  Arrest rates have since dropped, especially for violent crimes and drug offenses that in the past have driven inmate predictions upward.  "Forecasters across the country are monitoring trends to explain these unprecedented declines; however, they are not explained at this point," Traylor said....

Even with arrests down, correctional officials say they can always use more prison beds. "This is not a bed space problem. This is a money problem," Traylor said, when asked to respond to criticism that the prison system was overbuilt.  "Budget reductions have forced us to close facilities."...

At the direction of Gov. Bob McDonnell, corrections officials are putting more emphasis on programs to keep inmates from re-offending.  Although Virginia's recidivism rate is the sixth-lowest among 40 states for which data was most recently available, the current reduction in prison beds and funding is adding urgency to the effort.

The program -- run by a newly created coordinator and overseen by a council appointed by the governor -- will target inmates as soon as they enter prison and develop a detailed plan to assist their rehabilitation.  Such an idea might never have been broached 10 or 15 years ago -- much less by a Republican governor -- when the mood among politicians was to abolish parole, enact mandatory minimum sentences and vote for other punitive measures.

But with crime down and state dollars scarce, there seems to be a shift in philosophy when it comes to crime and punishment, said Del. Onzlee Ware, D-Roanoke, who serves on the Virginia Crime Commission.  "I think we've come full circle, because it's obvious we've overbuilt ourselves with prisons," Ware said. "I think it's finally seeped in. I don't think people like to admit it politically, but the fact of the matter is that it's a lot cheaper to do prevention than it is to lock people up in the penitentiary."

Re-entry is not the only new idea being floated these days.  A state task force is looking for ways to cut down on the number of nonviolent felons sent to prison.  For years, drug dealers and thieves have far outnumbered killers and rapists in prison.

January 3, 2011 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (7) | TrackBack

January 2, 2011

"Outlawed, Cellphones Are Thriving in Prisons"

The title of this post is the headline of this fascinating new New York Times article.  Here are excerpts:

Technology is changing life inside prisons across the country at the same rapid-fire pace it is changing life outside.  A smartphone hidden under a mattress is the modern-day file inside a cake.

“This kind of thing was bound to happen,” said Martin F. Horn, a former commissioner of the New York City Department of Correction who teaches at the John Jay College of Criminal Justice.  “The physical boundaries that we thought protected us no longer work.”

Although prison officials have long battled illegal cellphones, smartphones have changed the game.  With Internet access, a prisoner can call up phone directories, maps and photographs for criminal purposes, corrections officials and prison security experts say. Gang violence and drug trafficking, they say, are increasingly being orchestrated online, allowing inmates to keep up criminal behavior even as they serve time.

“The smartphone is the most lethal weapon you can get inside a prison,” said Terry L. Bittner, director of security products with the ITT Corporation, one of a handful of companies that create cellphone-detection systems for prisons.  “The smartphone is the equivalent of the old Swiss Army knife.  You can do a lot of other things with it.”

The Georgia prison strike, for instance, was about things prisoners often complain about: They are not paid for their labor. Visitation rules are too strict. Meals are bad. But the technology they used to voice their concerns was new.

Inmates punched in text messages and assembled e-mail lists to coordinate simultaneous protests, including work stoppages, with inmates at other prisons. Under pseudonyms, they shared hour-by-hour updates with followers on Facebook and Twitter. They communicated with their advocates, conducted news media interviews and monitored coverage of the strike....

Even closely watched prisoners are sneaking phones in.  Last month, California prison guards said they had found a flip phone under Charles Manson’s mattress.  The logical solution would be to keep all cellphones out of prison.  But that is a war that is being lost, corrections officials say.  Prisoners agree.

“Almost everybody has a phone,” said Mike, 33, an inmate at Smith State Prison in Georgia who, like other prisoners interviewed for this article, asked that his full name not be used for fear of retaliation. “Almost every phone is a smartphone. Almost everybody with a smartphone has a Facebook.”

Cellphones are prohibited in all state and federal prisons in the United States, often even for top corrections officials.  Punishment for a prisoner found with one varies. In some states, it is an infraction that affects parole or time off for good behavior.  In others, it results in new criminal charges.

President Obama signed a law in August making possession of a phone or a wireless device in a federal prison a felony, punishable by up to a year of extra sentencing.  Still, they get in.  By the thousands. In the first four months of 2010, Federal Bureau of Prisons workers confiscated 1,188 cellphones, according to Senator Dianne Feinstein, a California Democrat who sponsored the federal measure.  In California last year, officers discovered nearly 9,000 phones....

The solution, [various experts] say, is to simply jam cellphone signals in prisons.  [P]rison officials from [30] states petitioned the Federal Communications Commission last year for permission to install technology that would render cellphones useless.  But there is no support from the cellphone industry. “It’s illegal, plain and simple,” said Chris Guttman-McCabe, vice president of regulatory affairs for CTIA-The Wireless Association.  He cited the Communications Act of 1934, which prohibits the blocking of radio signals — or, in this case, cellphone signals — from authorized users.

The recent rise in smartphones raises larger issues for prisoners and their advocates, who say the phones are not necessarily used for criminal purposes.  In some prisons, a traditional phone call is prohibitive, costing $1 per minute in many states.  And cellphones can help some offenders stay better connected with their families.

Mike, the Georgia inmate who was part of the recent strike, said he used his to stay in touch with his son. “When he gets off the school bus, I’m on the phone and I talk to him,” he said in an interview on his contraband cellphone. “When he goes to bed, I’m on the phone and I talk to him.”

Some groups are encouraging prisons to embrace new technology while managing risks. Inmates are more likely to successfully re-enter society if they maintain relationships with friends and families, said David Fathi, director of the National Prison Project at the American Civil Liberties Union. “It shows that even if they are closed institutions, prisons are still part of the larger society,” Mr. Fathi said. “They can’t be forever walled off from technological changes.”

And in a world where hundreds of apps are introduced each day by developers hoping to tap new markets, a pool of prisoners with smartphones can seem an attractive new market, despite the implications.

“It’s a pure business opportunity,” said Hal Goldstein, the publisher of iPhone Life magazine. He predicted that games would be big, but so would the ability to download news and books. “People outside of prison become addicted to their phones,” Mr. Goldstein said. “Can you imagine if you had nothing but time on your hands?”

January 2, 2011 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (6) | TrackBack

Outgoing Governor Schwarzenegger grants commutations and pardons

On his way out of the Governor's office, Arnold Schwarzenegger has made some notable use of his clemency powers.  Press releases here and here provide these basics and links to the Governor's statements on each grant:

Governor Arnold Schwarzenegger has issued a sentence commutation for Sara Jessimy Kruzan, Esteban Nunez and Alberto Magana Torres.

Governor Arnold Schwarzenegger has granted a pardon to Kenneth Earl Autrey, Rex Black, Stephen Brown, Amnon Charash, Stephen Gaggero, Patrick Lee Harrelson, Robert Donald Harris, John Alexander Maclean and a conditional pardon to Rose Ann Parker.

Here are some press reports on a few of these grants:

January 2, 2011 in Clemency and Pardons, Who Sentences? | Permalink | Comments (6) | TrackBack

"Sentences stick for young killers: Law shift won't help murder cases"

The title of this post is the headline of this interesting article from Florida Today.  Here are a few excerpts:

The U.S. Supreme Court ruled in May that it was unconstitutional to sentence juveniles to life in prison for non-murderous crimes.  While three Florida juveniles have been resentenced, the ruling offers no relief to [those convicted of murder]....

According to a report issued in 2000 by the U.S. Department of Justice, 45 states have passed or amended legislation since 1992 making it easier to prosecute juveniles as adults.  The report states that the number of inmates under 18 confined in adult prisons more than doubled between 1990 and 2000....

Florida State University law professor Paolo Annino has spearheaded efforts to bring the possibility of parole back for juveniles sentenced to life or very long sentences.  He is the author of a bill, the Second Chance for Children in Prison Act, that would bring back the possibility of parole for children who were sentenced to more than 10 years in prison.

The children must have served at least eight years, must be considered rehabilitated, and must not have any disciplinary reports for the previous two years, among other requirements....

Annino's bill faces competition this year with a State Attorney's Association bill that would grant the possibility of parole for juveniles sentenced to life for crimes other than murder and after 25 years in prison.

January 2, 2011 in Assessing Graham and its aftermath, Offender Characteristics | Permalink | Comments (0) | TrackBack