March 15, 2011
Should a state be able to garnish a prisoner's wages to cover his incarceration costs?
The question in the title of this post is one that came before the Illinois Supreme Court today, as detailed in this local article headlined "Illinois wants to collect inmate's prison wages." Here are the specifics:
The Illinois Supreme Court heard arguments Tuesday in a case that could determine whether inmates who have jobs in prison owe their income to the state to cover the costs of their incarceration. Inmate Kensley Hawkins, 60, has saved about $11,000 during his 21 years in prison by squirreling away the $75 a month he makes as a furniture assembler. Now, the Illinois Department of Corrections wants him to turn over that money to help pay for the cost of housing him.
Under state law, the Illinois Department of Corrections can move to recover housing and other costs from inmates who report assets of more than $10,000, said David Simonton, an attorney for Hawkins. But those assets typically come from inheritances, pensions or some other windfall -- not the wages the inmates have earned in prison, and the source of Hawkins' money is what makes his case unique, Simonton said.
If the state is allowed to take the income that inmates earn, they'll be less inclined to get jobs in prison and gain the kinds of work experience that would help them upon their release from custody, Simonton said. "I don't think that either the department (of corrections) or the state have thought out the consequences of this," he said. "Hopefully, the Supreme Court will look from a common-sense, public policy perspective and will realize that the legislature did not intend this result when they drafted the reimbursement statute."...
State law also allows IDOC to collect 3 percent of inmates' wages, and Hawkins' attorneys say the department isn't entitled to more. About $751 was taken out of Hawkins' income to cover the 3 percent. The corrections department says the cost of Hawkins' incarceration from July 1, 1983, to March 17, 2005, was $456,000.
Hawkins is serving 60 years for murder, attempted murder and burglary, among other charges. His projected parole date is 2028.
Tapia's topic: Can federal judges lengthen prison terms based on treatment programs?
I have not blogged recently on the really interesting federal sentencing case of Tapia v. US, which is to be argued before the Supreme Court next month, because I have had the pleasure and honor of helping Professor Stephanos Bibas prepare an amicus brief supporting the judgment of the Ninth Circuit. (Professor Bibas was invited to prepare this brief by the Supreme Court because the Solicitor General has adopted the defendant's position on the chief statutory issue, and he kindly invited me to help with the briefing.)
Here is the question presented in Tapia as set forth by the Solicitor General: "Whether 18 USC 3582(a) precludes a district courtfrom imposing a longer term of imprisonment in order to promote a defendant's rehabilitation." Via the ABA, all the merits briefing for Tapia is now available at this link, including now this Brief for Amicus Curiae by Invitation of the Court. And here is a brief portion of the amicus brief to give you a flavor of the argument that Professor Bibas (with my help) has put forward to the Justices:
The Sentencing Reform Act repudiated both the rehabilitative ideal’s effort to reform every inmate’s soul through isolation and prison routine and the Rehabilitation Model’s arbitrary, indeterminate procedures. It did not, however, bar judges from considering treatment programs that target specific defendants’ addictions or pathologies when imposing determinate prison sentences.
Sentencing judges may, indeed must, consider a defendant’s need for a targeted treatment program as a factor in prison sentencing. The Act instructs judges to consider programs tailored to particular defendants’ needs, distinguishing those treatments from the amorphous rehabilitative ideal. Here, the sentencing judge permissibly adjusted petitioner’s prison sentence in part to facilitate treatment of her drug addiction....
In warning against “imprisonment” as a “means of promoting rehabilitation,” Congress cautioned against simply locking an inmate in a cell indefinitely to induce penitence. That instruction echoes Judge Frankel’s indictment of the “airy nonsense that everyone can be rehabilitated.”...
When a judge tailors a prison term so that a defendant can enter a specific treatment program, it is the program -- not imprisonment itself -- that is the “means of promoting rehabilitation.” The verb “recognizing” instructs judges to recall to mind and realize the failed history of the rehabilitative ideal, not targeted prison treatment programs.
Professor Jim Liebman speaking on modern death penalty today at OSU
I am extremely pleased and extremely excited that today at The Ohio State University Moritz College of Law we will have the honor of Professor James Liebman from Columbia Law School giving our annual David H. Bodiker Lecture on Criminal Justice. The title of the talk is "The Modern U.S. Death Penalty: Minority Practice, Majority's Burden," and here is how the planned talk is previewed on this page:
Even in the 38 U.S. states that have it, the death penalty is used by only a fairly small and shrinking number of counties. That number declines further if "use" means execution, not simply imposition, of death sentences. But if the penalty's benefits are realized by only a small number of counties, its costs and risks are borne by the entire state and, indeed, by the entire nation.
Professor James S. Liebman's lecture will address three questions: Why do only a minority of U.S. criminal jurisdictions use the death penalty? To what extent -- and why -- do the majority of Americans living in jurisdictions that do not use the death penalty bear its costs and risks? How can capital states address the mismatch between who uses and who pays for the penalty?
I highly encourage anyone interested in the death penalty to come over to OSU for this Lecture if you are in the area. And if you are not in the area, you can still watch the lecture via webcast at this link. Here is a little background on the Bodiker Lecture Series:
The David H. Bodiker Lecture on Criminal Justice was established at The Ohio State University Moritz College of Law in February 2008 to honor the spirit, dedication, and passion of David H. Bodiker, who served as the Ohio Public Defender from 1994 until his retirement in December 2007.
Bodiker, a 1963 Moritz graduate and attorney in the private practice of law for many years in Columbus, was a fierce advocate for the poor in Ohio’s criminal justice system and was singular in his tenacious and relentless advocacy for the rights of Death Row inmates.
"5 prisons to be put on block by state"
The title of this post is the headline of this front-page article appearing today in my own Columbus Dispatch. Here are the details:
While Gov. John Kasich's plan to sell four prisons promises to raise much-needed cash for the state, the news isn't so good for affected employees who could see their pay cut by one-third and lose paid health-care benefits. Kasich is expected to propose selling the prisons, plus the closed Marion Juvenile Correctional Facility, in his two-year budget plan to be unveiled today....
If approved by the General Assembly in the budget process, the prison sales would produce an estimated $200million for state coffers. In addition, there would be annual savings on operating costs, probably a minimum of 5 percent as required by current state law. The state would contract with the new owner-operator to house and care for inmates.
It also would mean that about 800 employees, including 475 corrections officers, would lose state jobs. Sources said employees would receive hiring "preference," but not guarantees, from the new owners. The silver lining for the communities could be new property-tax revenue when prisons go from tax-exempt state ownership to taxable private ownership. One source estimated that to be from $400,000 to $1 million per year for each institution.
The administration refused to confirm the deal, but sources said for-sale signs will go up on the North Central Correctional Institution in Marion and the Grafton Correctional Institution in Lorain County, both state-owned, and the Lake Erie Correctional Institution in Conneaut, in Ashtabula County, and North Coast Correctional Treatment Facility in Grafton. The latter two are operated by Management & Training Corp. of Centerville, Utah.
Ohio Civil Service Employees Association officials said yesterday that pay at two private prisons averages about one-third less than comparable jobs at state prisons. Salary schedules aren't available from the private company, but the union obtained some details from public-records requests. For example, a state corrections captain earns about $30 an hour compared with $20 at private prisons.... Prison employees are "absolutely scared," said Tim Shafer, union operations director and a former corrections officer. "They're concerned about their families and their communities."...
The prisons and juvenile facility would be sold to the highest, qualified bidder, a process that would narrow the field considerably to existing companies with the money to buy and operate the institutions. The largest private-prison operators, in addition to MTC, are Corrections Corporation of America, of Nashville, Tenn., and the GEO Group, of Boca Raton, Fla.
March 14, 2011
Fascinating backstory for why former judge Jack Camp does not even have a felony conviction
Thanks to this lengthy piece by Robin McDonald at The Daily Report legal paper, which is headlined "Camp sentence: 30 days in prison; Prosecutors object to visiting judge converting Camp's felony plea to a misdemeanor," I have learned that former federal judge Jack Camp did not even get saddled with a felony conviction as a result of a surprise development during his federal sentencnig last Friday. Here is the remarkable backstory:
A visiting federal judge from Washington on Friday sentenced former U.S. District Senior Judge Jack T. Camp to 30 days in prison and 10 weeks of community service on drug and theft charges.
In a surprising move, U.S. District Senior Judge Thomas F. Hogan reduced the sole felony to which Camp had pleaded guilty last fall to a misdemeanor. Camp's defense team — in what federal prosecutors claimed was a breach of Camp's plea deal last year — had raised legal issues while seeking probation for Camp that led to Hogan's action.
Hogan issued the sentence after a two-hour hearing during which Camp, his son, a former law partner, a former law clerk, the former district court clerk and the former chairman of Georgia's Republican Party made personal pleas for leniency and a probated sentence that would allow Camp to avoid incarceration....
In converting Camp's felony to a misdemeanor, Hogan has allowed the former judge to avoid the loss of a host of privileges that go with a felony, such as the right to vote, the right to hold public office, the right to secure a business license and the right to carry a gun....
Camp pleaded guilty last November, a little more than a month after he was arrested by the FBI following an illegal drug buy that he and the dancer made from an undercover agent. Camp pleaded guilty to two misdemeanors — illegally possessing cocaine, marijuana and the painkiller Roxicodone (a synthetic form of heroin) and the misdemeanor theft of a government-issued laptop computer that Camp had given to the stripper. But Camp also pleaded guilty to felony aiding and abetting a person he knew to be a drug felon in the unlawful possession of illegal drugs. The stripper, an FBI informant, had been convicted of using telephone communications while trafficking in methamphetamine, according to federal prosecutors. Camp resigned from the bench and has also surrendered his law license.
The felony charge carried a maximum two-year sentence and a $100,000 fine. Both misdemeanor offenses carry maximum one-year sentences and $100,000 fines. Hogan said that the pre-sentence report conducted by the federal probation officer assigned to Hogan's court recommended a sentence from 15 days to six months.
But last week Camp's lawyers filed a sentencing memorandum claiming the confidential pre-sentence report, which is not available to the public, was in error. They asserted that Camp should not be subject to any mandatory minimum prison term and that his sentence should not be influenced by the prior criminal history of the dancer for whom he had helped to acquire illegal drugs for their joint use....
That argument prompted Hogan to convert the felony charge to a misdemeanor, a move he discussed in chambers with Camp's lawyers and lawyers from the Justice Department's Public Integrity Section. The meeting delayed the start of the sentencing hearing by 35 minutes, which Hogan explained when he took the bench.... Hogan said his interpretation of case law is that Camp's sentence could not be enhanced by the prior criminal record of the dancer with whom he had purchased and used illegal drugs, and, as such, his felony plea converted to a misdemeanor.
Prior to Hogan's ruling, DOJ attorney Deborah Sue Mayer asked the judge to release the government from the terms of its plea agreement with Camp, which she said would give the Justice Department the option of bringing additional criminal charges against Camp. But Hogan said that he did not believe the issues that led him to toss the felony count constituted a breach of Camp's plea.
Later in the hearing, Mayer reiterated her position that Camp's plea agreement was breached. In asking for an unspecified prison term that she said reflected the seriousness of Camp's offenses, she noted that Hogan ought to consider the entirety of Camp's actions, not just the charges to which he entered guilty pleas. "He engaged in repeated criminal conduct over a period of four months," she said. "It was not just a one-time thing. It was not just an exercise in poor judgment."
That conduct included asking a federal marshal to run a criminal background check for personal reasons, which is a misdemeanor, Mayer said. It also included the "repeated" possession and use of illegal drugs including cocaine and synthetic heroin that she said Camp "snorted like a street drug," and the lie he told in order to secure a new laptop so that he could give a government-issued computer to the stripper from whom he sought sexual favors. Camp, she said, also knew "full well" that the stripper had been convicted of a drug trafficking crime, which Mayer said the former judge attempted to minimize in an effort to help her find new employment....
Mayer added, Camp brought two guns to a drug deal, one of which he had in his pocket while the dancer was by his side buying illegal drugs from the undercover agent. When Camp was arrested, one of the guns was visible in the front passenger seat of his car, with the trigger cocked and a chambered round, but Mayer said the government did not charge Camp with a federal firearm offense because it was not linked to a crime of violence or a drug trafficking offense."
Based on this description of events, it sounds like Camp may have been able to raise an Apprendi/Blakely issue in order to avoid a felony conviction. If that's right, it provides yet another remarkable facet to a remarkable case that, in my view, does not reflect very well on how this ugly matter was handled by the local federal prosecutors. [UPDATE: A commentor rightly noted that the local USA's office recused itself in this case, so its the feds from Main Justice brought in to prosecute who seem to have the egg on their face in light of how poorly this case appears to have been handled].
Related prior posts (which have generated lots of notable comments):
- "Federal judge charged with buying drugs from stripper"
- Federal judge cutting deal to avoid prison time for drugs, guns and stripper activities
- Sentencing memo for former federal judge urges probation and stresses mental health issues
- You be the judge: what federal sentence would you impose on former judge Jack Camp?
- "Ex-judge Camp sentenced to 30 days in prison"
The latest news on one capital litigation front in North Carolina
Though North Carolina has not had an execution in nearly five years, it has plenty of notable death penalty litigation on-going. Though I am not sure of the exact status of the on-going litigation over the state's Racial Justice Act, this local article, headlined "N.C. Supreme Court to hear arguments about death-penalty protocol," provides the latest news on the state's lethal injection litigation:
An administrative law judge was right to order North Carolina's statewide elected officials to revise the protocol for the execution of prisoners on death row, according to attorneys who are preparing to make that case to the state Supreme Court on Monday.
The state's top court is scheduled to hear oral arguments in a case involving five death-row inmates that has partly contributed to an unofficial moratorium on capital punishment in North Carolina. A ruling in those inmates' favor wouldn't overturn the death penalty or immediately force revised protocols for carrying it out but would send the case to a lower court for review.
The case essentially centers on whether Administrative Law Judge Fred Morrison had sufficient jurisdiction to order the Council of State, which consists of North Carolina's 10 statewide elected officials, to revise the protocol governing the death penalty.
The council argued that Morrison's 2007 ruling lacked that force. A Wake County Superior Court judge ruled in the council's favor, and now attorneys for the death-row inmates are asking the Supreme Court to settle the issue.
Honesty apparently not the best policy for one federal child porn defendant
I believe in, repeat to my kids, and try to live by the credo "Honesty is the best policy." But this local story of a federal child porn sentencing in Alabama, headlined "Unregistered sex offender’s honesty about sexual urges lands him harsher sentence," spotlights that federal defendants can sometimes be forced to pay a steep price for honesty. Here are the notable details:
Had it not been for Michael Wayne Powell’s honesty with probation officers, a federal judge here acknowledged, the Chunchula man likely would have gotten a routine prison sentence for having child pornography. But Powell, 54, told a probation officer working on his presentence report that he had sexual urges that he could not control.
U.S. District Judge Ginny Granade last week sentenced Powell to 20 years in prison, a rare instance of a federal judge imposing punishment greater than the range set forth under advisory sentencing guidelines. “Because of his admission that he cannot control himself. ... I find in this particular case, a guideline sentence is not appropriate,” the judge said.
Assistant U.S. Attorney Adam Overstreet noted that the defendant has a prior conviction for trying to lure an 11-year-old girl for sex. Powell then failed to register as a sex offender as required by law, said Overstreet, who sought the maximum 40-year sentence. Overstreet also pointed out that Powell underwent 840 days of sex offender counseling while incarcerated in Oklahoma — apparently to no avail. Law enforcement authorities found 788 pictures of child pornography on Powell’s computer when they searched the Wilmer home where he was living at the time....
Assistant Federal Defender Chris Knight said a 40-year prison term would be “absolutely, substantively unreasonable” for an offense that did not involve contact with a minor. “It’s a run-of-the-mill child pornography case, and I think it calls for a sentence within the guidelines,” he said.
According to court records, Powell told a probation officer that he had never touched a child but would if he had the chance. He called himself a danger to the community, according to the presentence report. “All I can do is ask for mercy,” he said last week. “I know I committed this crime. And I know how bad it is. But I had no victim. The victim is myself. It’s a disease.”
Notable little Second Circuit ruling on DWI as criminal history
The Second Circuit has an important and interesting little criminal history ruling today in US v. Potes-Castillo, No. 07-5518 (2d Cir. March 14, 2011)(available here), which starts this way:
This appeal raises the question whether a conviction for driving while ability impaired in violation of New York law must categorically be counted when calculating a defendant’s criminal history score. Because we conclude that Walter Gonzalez-Rivera’s prior sentence for violating New York’s driving while ability impaired law should not be counted toward his criminal history calculation if it is similar to an offense listed in United States Sentencing Guidelines section 4A1.2(c)(1), we remand to the District Court for determination in the first instance whether Gonzalez-Rivera’s conviction is similar to careless or reckless driving.
"Supreme Court decision on sentencing guidelines gives judges more leeway"
The title of this post is the headline of this new Washington Post article discussing the Supreme Court's big federal sentencing ruling earlier this month. Here is a brief excerpt:
This month, Pepper won his case in a victory that gives federal judges more leeway to provide second chances to the criminals who come before them. The ruling will clarify the rules that guide judges as they try to set sentences that both comport with national norms and ensure justice is done in individual cases.
But Pepper v. United States also is a reminder of the real people behind the court’s cases. It comes with a story that might make even the most objective balls-and-strikes umpire on the mahogany bench feel a tinge of (can it be said?) empathy.
Related posts on the Pepper ruling by the Supreme Court:
- SCOTUS rules in Pepper, again stressing sentencing discretion after Booker
- SCOTUS opinion in Pepper shows how/when/why courts can reject the FSG
- Will Pepper prompt many more federal sentencing judges to focus on post-offense rehabilitation?
March 13, 2011
Thoughs on "Giving Life After Death Row"
I never got the chance to blog last week about the remarkable New York Times op-ed piece “Giving Life After Death Row,” by Christian Longo, a condemned prisoner at Oregon State Penitentiary. Here are excerpts:
Eight years ago I was sentenced to death for the murders of my wife and three children. I am guilty.... I spend 22 hours a day locked in a 6 foot by 8 foot box on Oregon’s death row. There is no way to atone for my crimes, but I believe that a profound benefit to society can come from my circumstances. I have asked to end my remaining appeals, and then donate my organs after my execution to those who need them. But my request has been rejected by the prison authorities....
There is no law barring inmates condemned to death in the United States from donating their organs, but I haven’t found any prisons that allow it. The main explanation is that Oregon and most other states use a sequence of three drugs for lethal injections that damages the organs. But Ohio and Washington use a larger dose of just one drug, a fast-acting barbiturate that doesn’t destroy organs. If states would switch to a one-drug regimen, inmates’ organs could be saved....
Aside from these logistical and health concerns, prisons have a moral reason for their reluctance to allow inmates to donate. America has a shameful history of using prisoners for medical experiments. In Oregon, for example, from 1963 to 1973, many inmates were paid to “volunteer” for research into the effects of radiation on testicular cells. Some ethicists believe that opening the door to voluntary donations would also open the door to abuse. And others argue that prisoners are simply unable to make a truly voluntary consent.
But when a prisoner initiates a request to donate with absolutely no enticements or pressure to do so, and if the inmate receives the same counseling afforded every prospective donor, there is no question in my mind that valid organ-donation consent can be given.
I am not the only condemned prisoner who wants the right to donate his organs. I have discussed this issue with almost every one of the 35 men on Oregon’s death row, and nearly half of them expressed a wish to have the option of donating should their appeals run out.... If I donated all of my organs today, I could clear nearly 1 percent of my state’s organ waiting list. I am 37 years old and healthy; throwing my organs away after I am executed is nothing but a waste.
And yet the prison authority’s response to my latest appeal to donate was this: “The interests of the public and condemned inmates are best served by denying the petition.” Many in the public, most inmates, and especially those who are dying for lack of a healthy organ, would certainly disagree.
I made sure to find time to blog this piece today in part because today's New York Times includes this bunch of interesting letters in response to the Longo commentary.
Oregon report indicates mandatory minimums transfer sentencing power to prosecutor
As detailed in this local artice, which is headlined "Report on Oregon's Measure 11 incites fierce debate," there is a notable new report in Oregon about the impact of mandatory minimum sentencing in the state. Here are excerpts:
A political firestorm has erupted over whether Measure 11 is working, pitting prosecutors against defense attorneys, victim advocates against victim advocates. The state Criminal Justice Commission ignited the arguments with a report that concludes the measure, passed by voters in 1994, hasn't worked as intended....
The commission found, for example, that one effect of Measure 11 has been to shift power to prosecutors, who use the threat of a mandatory sentence to win plea deals on lesser crimes....
Proponents of Measure 11, however, attacked the report as politically motivated. The report was slanted to "push a political agenda, which is anti-Measure 11, anti-incarceration, anti-law enforcement and anti-victims," said Steve Doell of Crime Victims United.
The renewed debate comes as legislators, looking to save money amid the state budget crisis, face several proposals to change state sentencing laws. Gov. John Kitzhaber is seeking to again defer tougher sentences for repeat property offenders, and legislation is pending to stall Measure 73, which would increase sentences for some sex offenders and drunken drivers.
There's no question Measure 11 has had a profound effect on Oregon's criminal justice system. By setting mandatory minimum prison sentences for certain offenses, the measure has been a significant factor in pushing the state's prison population from about 3,100 in 1980 to about 14,000 in 2010, according to a February analysis by the Legislative Fiscal Office. The commission's report found that the state prison system would need 2,900 fewer beds had the measure not taken effect.