March 26, 2011
Notable media coverage of Fifth Circuit Amy child porn restitution ruling
The biggest development in sentencing jurisprudence this past week was the Fifth Circuit's fascinating (and suspect?) ruling that no proximate causation showing is needed to support a restitution order in the child pornography downloading case known as In re Amy Unknown, No. 09-4123 (5th Cir. March 22, 2011) (available here). Consequently, I am pleased to see from this new AP article, headlined "Legal experts: Ruling benefits child porn victims," that the traditional media is taking note of the Fifth Circuit's decision (which I first discussed here).
Here are excerpts from the lengthy and effective AP piece:
Victims of child pornography around the country could have an easier time getting restitution from those convicted of possessing such images, according to a federal appeals court ruling this week in a Texas case. But legal experts say the issue now may have to be decided by the U.S. Supreme Court because courts throughout the United States are split on how to award such compensation.
The 5th U.S. Circuit Court of Appeals on Tuesday ruled that federal restitution law doesn't generally require victims to specifically detail how an individual defendant has harmed them in order to receive restitution. Other national appeals court rulings, including in Georgia and Montana, have upheld restitution awards against individuals convicted of possessing child pornography. But those courts interpreted federal law to require that victims show a more direct connection between what a defendant did and the harm victims suffered.
"It's a big deal," Jeff Bellin, a law professor at Southern Methodist University in Dallas, said of the 5th Circuit's ruling. "This is clearly the most significant victory that proponents of this type of interpretation (of restitution law) have had in the courts so far."... The 5th Circuit's decision reverses a previous decision by a different panel of the same appeals court that had ruled against Amy, who is now in her early 20s.
Stanley Schneider, Paroline's attorney, said he planned to appeal the ruling to the full appeals court and if needed to the U.S. Supreme Court. "If a person is selling pornography ... or distributing the image, that is (one) question," he said. "But if someone is sitting and doing nothing more than looking at images, possessing them, there has to be a causal connection" for the harm they have allegedly caused a victim. Schneider said Amy did not know beforehand that Paroline had seen images of her.
[Paul] Cassell, who [is one of Amy's lawyers and] also is a law professor at the University of Utah, said individuals like Paroline harm victims simply by viewing images of them. "It's psychiatric death by a thousand cuts because she is being harmed over and over again by these faceless, nameless criminals who are looking at these images over and over again," Cassell said.
Cassell said about a third of the $3.4 million Amy is asking for, which is paying for lifetime counseling costs and lost income, has already been recovered from other claims around the country. The U.S. Attorney's Office for the Eastern District of Texas, which prosecuted Paroline and opposed Amy's appeal, declined to comment.
Under the law, victims of child pornography can be awarded restitution. But federal judges around the country have had varied interpretations of the restitution statute, with some awarding large amounts, others nominal amounts and others denying it altogether. "Do I think it resolves the issue? As an advocate, I hope it resolves it. But it will eventually make its way to the Supreme Court," said Meg Garvin, executive director of the National Crime Victim Law Institute, located at Lewis & Clark College's School of Law in Portland, Ore.
Some related recent federal child porn restitution posts:
- Second Circuit blesses future medical expense restitution in child porn sentencing
- "Prosecutors seek nearly $200k for child porn victim"
- Notable report on latest developments in federal restitution awards in child porn downloading cases
- New student note on restitution sentences for child porn downloaders
March 26, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack
New JPI report expressing concerns about drug courts and net widening
This past week the Justice Policy Institute released this really interesting new report concerning drug court. The report is titled "Addicted to Courts: How a Growing Dependence on Drug Courts Impacts People and Communities," and here is how JPI describes its themes on this report webpage:
America’s growing reliance on drug courts is an ineffective allocation of scarce state resources. Drug courts can needlessly widen the net of criminal justice involvement, and cannot replace the need for improved treatment services in the community. Of the nearly 8 million people in the U.S. reporting needing treatment for drug use, less than one fourth of people classified with substance abuse or a dependence on drugs and/or alcohol receives treatment, and for those who do receive treatment, over 37 percent are referred by the criminal justice system.
While drug courts may be a better justice system option than incarceration, they are still a justice system approach to a public health issue. Drug courts also are not the most effective way to help people who are struggling with addiction, and in many ways, only serve to “widen the net” of U.S. criminal justice control, which now stands at about 7 million people either incarcerated or on probation or parole.
Certainly, drug courts can and do help some people who are drug dependent and who are engaged in illegal behavior. The questions that this report seeks to answer are why we have drug courts in the first place, whether we should continue to utilize and expand drug courts, and at what expense — in terms of both direct costs or opportunities foregone.
Some older and newer related posts about drug court programs and research:
- Talk of drug courts, but not major policy changes, in drug war from Obama team
- Important new NACDL report critical of modern drug court movement
- New report on drug courts from The Sentencing Project
- "Rethinking Drug Courts: Restorative Justice as a Response to Racial Injustice"
- NJ commission endorsing expanding drug courts
- A religious pitch for drug courts
"Why Padilla Doesn’t Matter (Much)"
The title of this post is the title of this new piece by Professor Darryl Brown, which is now available via SSRN. Here is the abstract:
The U.S. Supreme Court’s decision in Padilla v. Kentucky might herald a breakthrough in the quality of representation provided to immigrants charged with crimes, and more broadly an advance in the Court’s recognition of the role both of plea bargaining in criminal adjudication and of the severe collateral consequences often triggered by convictions for citizen as well as alien defendants. There are good reasons to suspect, however that Padilla’s practical impact will be modest; for many non-citizen criminal defendants, including probably Jose Padilla himself, its impact will be non-existent. The Padilla holding seeks to ensure that defense lawyers are aware of severe collateral consequences that attach to convictions, in order both to inform their clients of those consequences to inform plea bargain negotiations among attorneys. The Court speculated that attorneys then may be able to craft alternative criminal or immigration-law outcomes through creative bargains.
But the problem for many non-citizen defendants like Mr. Padilla is not simply -- and not primarily -- their lawyers’ unfamiliarity with immigration law; it is the content of the substantive criminal law, of sentencing law, of the sources of non-criminal law that define collateral consequences and, finally, of limited procedural possibilities for avoiding or mitigating those consequences. None of that law changes with Padilla. As a result, defense lawyers’ (and even prosecutors’) abilities to negotiate around criminal law or immigration law, and to achieve more favorable or just outcomes for defendants are not notably improved. Adding to those limitations, the pervasive inadequacies of indigent criminal defense, especially in state courts, are unaffected by Padilla, further diminishing the hope that attorneys’ awareness of collateral consequences will improve client representation and case outcomes.
US Bureau of Prisons director Harley Lappin announces retirement
As detailed in this BOP press release, "Director Harley G. Lappin has decided to retire from the Bureau of Prisons effective May 7, 2011." Here is more from the release:
During his eight years as director of the Bureau of Prisons, Mr. Lappin has played an important role in supporting the Department of Justice efforts to manage federal prisons that are safe and secure and provide prisoners with a range of programs to enable them to develop the skills needed for reentry into society.
Additionally, he has supported the department’s initiatives involving immigration, drug and weapons prosecutions, and the nation’s war on terror. Despite significant budget challenges during Director Lappin’s tenure, the bureau has expanded and improved program offerings for inmates that enhance public safety. He championed the Inmate Skills Development Initiative, which substantially enhanced the bureau’s efforts to effectively prepare inmates for a successful, crime-free return to the community at the completion of their sentences.
It has never been clear to me how much independent policy-making authority is in the hands of the BOP director. Even this short press release suggests a BOP director can play an important policy role, but more as an administrative supporter of policy choices made initially by the US Justice Department. The recent important testimony by Director Lappin before the US Sentencing Commission concerning new prisoner release proposals (discussed here) also suggests that a BOP director is necessarily required to be more follower than leader on key federal criminal justice policy issues.
That said, a number of existing statutory provisions and administrative realities ensure that the BOP has a tangible impact on many aspects of federal sentencing and corrections law and practice — on issues ranging from drug treatment programming to application of compassionate release mechanisms. This reality, in turn, ensures that Director Lappin's replacement will play an important role in the future of federal criminal justice policy and practice.
March 25, 2011
Should prosecutors be offered bonuses for conducting trials and getting convictions?
The question in the title of this post is prompted by this fascinating article from the Denver Post headlined "DA Chambers offers bonuses for prosecutors who hit conviction targets." Here are the details:
Eighteenth Judicial District Attorney Carol Chambers has created an unusual incentive for her felony prosecutors, paying them bonuses if they achieve a predetermined standard for conviction rates at trial. The threshold for an assistant district attorney to earn the average $1,100 reward: Participate in at least five trials during the year, with 70 percent of them ending in a felony conviction. Plea bargains or mistrials don't count.
Chambers, whose office handles prosecutions in Arapahoe, Douglas, Elbert and Lincoln counties, said she set up the standard to encourage her team to meet minimum requirements in line with statistics in comparable jurisdictions. The bonus pool, which comes from an office surplus, and the use of standards to determine who gets part of it are similar to incentive compensation used in private industries.
"It is hard to find performance standards by which to measure trial attorneys," Chambers wrote in response to questions submitted by e-mail. "This is the standard I think best meets the need to have a performance standard that attorneys know and can be aware of and that does not in any way encourage any outcome in any specific case."
But other Colorado district attorneys say they neither typically award bonuses nor tie performance evaluations to a conviction goal. And public defenders said they worry that a prosecutor just shy of the mark might be tempted to drive a harder bargain to force a case to trial to gain the bonus rather than in the interest of justice.
Chambers used the criteria for the first time in 2010 and defended it in a Dec. 7 e-mail to her staff. "To reply to some of the emails I have received: this is a trial office. I don't think that comes as a surprise to anyone," Chambers wrote. "If you are doing the job, you are going to necessarily go to trial. We plea bargain most of our cases so that we can try the others." She said in the interview that attorneys assigned to more complicated or lengthy cases were exempt from the requirement and that the e-mails show she granted four exceptions for people who pitched in in other ways.
Her 18th Judicial District staff members won felony convictions in 69 percent of their trials last year, according to data from the State Court Administrator's Office. That's a few points behind Jefferson and Boulder counties, and on par with Denver and Adams counties, though none have taken similar steps.
Denver District Attorney Mitch Morrissey said he's seen plenty of cases where hard work didn't pay off in the jury box and added that he'd be concerned about unintended consequences of a rule like Chambers'. "I would worry that if something is tied to a conviction rate, a deputy wouldn't try a hard case that required a trial. We want people trying cases that need to be tried," Morrissey said. "If they don't win, they don't win."
Several officials from other jurisdictions said that a deputy district attorney's job is far too complicated to boil down to a conviction rate. Boulder County District Attorney Stan Garnett looks at attorneys' ethical standards, how they juggle their dockets and move cases along, their relationships with local law enforcement, and whether they take cases to trial. But he hasn't set a quota.
"I want my department in trial as much as possible, but I want them focused on doing the right thing on their cases," Garnett said. "I don't want them distracted by some kind of bonus or award." Garnett pointed to the same American Bar Association directive for prosecutors as State Public Defender Doug Wilson did. In essence: Seek justice, not merely conviction.
"If you're to seek justice and yet your pay is based on the number of cases you take to trial or your conviction rate, then it clouds your discretion," Wilson said. "They have an incentive not to make a reasonable disposition if they need one more trial or another conviction in order to get a bonus."
Chambers said she carefully set the standard low enough so that prosecutors aren't cherry-picking easy cases from their 150 to 175 cases a year and high enough to demonstrate that they have certain trial skills and good judgment. In Chambers' view, most, if not all, of her assistants are likely to have at least five cases a year where justice can't be achieved through a plea agreement and that end up at trial. "If a prosecutor does not have five cases ... that are just to take to trial, then that prosecutor has an ethical obligation not to try those cases and do justice," Chambers wrote. "I would expect that prosecutor to ask for an exemption ... and I would grant it."
"Neuroscientific Challenges to Retributivism"
The title of this post is the title of this notable book chapter by Professors Michael Pardo and Dennis Patterson available via SSRN. Here is the abstract:
We examine two recent challenges to retribution-based justifications for criminal punishment based on neuroscientific evidence. The first seeks to undermine retributivism because of the brain activity of subjects engaged in punishment decisions for retributive (as opposed to consequentialist) reasons. This challenge proceeds by linking retributivism with deontological moral theories and the brain activity correlated with deontological moral judgments. The second challenge seeks to undermine retributivism by exposing, through neuroscientific information, the purportedly implausible foundation on which retributivism depends: one based on free will and folk psychology.
We conclude that neither challenge succeeds. The first challenge fails, in part, because the brain activity of punishers does not provide the appropriate criteria for whether judgments regarding criminal punishment are justified or correct. Moreover, retributivism does not necessarily depend on the success or failure of any particular moral theory. The second challenge fails because neuroscience does not undermine the conceptions of free will or folk psychology on which retributivism depends. Along the way, we point out a number of faulty inferences and problematic assumptions and presuppositions involved in these challenges to retributivism.
March 24, 2011
Divided Kentucky Supreme Court upholds stay on executions in state
As detailed in this AP article, a "ban on executions in Kentucky may stay in place while a judge decides if the state's lethal injection protocol is adequate, the Kentucky Supreme Court ruled Thursday." Here are more of the details:
The court, by a 5-2 vote, left in place a lower court's order temporarily barring executions while condemned inmate Gregory L. Wilson, 54, and other death row inmates challenge the state's execution protocol. The decision means that Kentucky won't be able to carry out an execution, despite having recently purchased enough of a key drug to carry out three lethal injections.
Franklin Circuit Judge Phillip Shepherd issued the order in September as the state prepared to execute Wilson for the 1987 kidnapping, rape and murder of 36-year-old Debbie Pooley in northern Kentucky. Shepherd found the state lacked "adequate safeguards" to assess an inmate's mental state once an execution date has been set.
The high court said the best option right now is to let the case play out before Shepherd. "We express no opinion on the merits of the Franklin Circuit Court on these issues," the court wrote in an opinion signed by Chief Justice John D. Minton. Shepherd told attorneys Monday that he's considering a final opinion in the case....
The high court said because there are no active execution dates, there is no rush to consider Shepherd's decision before his final opinion. "We certainly recognize that some view any delay in carrying out the death sentences of Wilson and other death row inmates as an injury and an injustice to the Commonwealth, but we also believe that granting the requested writ would not further Commonwealth's officers' efforts to meet obligations to comply with the law in administering the death penalty," the court wrote.
Justices Will T. Scott and Bill Cunningham dissented, but didn't issue an opinion.
Allison Martin, a spokeswoman for Attorney General Jack Conway said they were disappointed. Public defender David Barron, who represents Baze, said the decision shows Kentucky prematurely set execution dates while there were valid questions about the state's protocol....
The decision marks at least the third time questions about Kentucky's execution protocol have stopped executions. The state's high court halted executions in 2004 in a case that the U.S. Supreme Court used to uphold the constitutionality of the three-drug lethal injection process. In November 2009, the state justices ordered Kentucky to readopt the lethal injection protocol because it wasn't properly put into place.
The opinion and order in this case, which mostly deals with procedural issues, is available via this link.
New report from The Sentencing Project on "Cracked Justice"
Via e-mail I received this report on this notable new report from The Sentencing Project:
A new report from The Sentencing Project, Cracked Justice, ... addresses disparities in cocaine sentencing in 13 states and documents efforts at the federal and state level to correct these injustices. State cocaine sentencing disparities include:
• In Missouri, where a defendant convicted of selling six grams of crack cocaine faces the same prison term -- a ten-year mandatory minimum -- as someone who sells 450 grams of powder cocaine, or 75 times that amount.
• In Oklahoma, which maintains a 6-to-1 quantity-based sentencing disparity, a ten-year mandatory minimum sentence is triggered for five grams of crack cocaine and 28 grams of powder cocaine.
• In Ohio, sentencing disparities vary across felony categories based on quantity amounts. The state uses a 10-to-1 ratio of 1,000 grams of powder cocaine and 100 grams of crack cocaine for major drug offenses and imposes a ten-year mandatory minimum.
Seventh Circuit gives some teeth to parsimony principle in reversing life sentence for crack
The Seventh Circuit shows yet again that it is willing and able to give some real meaning to reasonableness review after Booker, this time by reversing a within-guideline crack sentence of life imprisonment in US v. Johnson, No. 10-1737 (7th Cir. March 24, 2011) (available here). Here is how the Johnson opinion begins:
A jury in the United States District Court for the Central District of Illinois convicted Henry Johnson of several crimes related to the possession and sale of crack cocaine. The district court sentenced Mr. Johnson to life in prison. In his initial appeal, we affirmed the convictions, but we reversed the sentence and remanded to allow the district court to take account of the Supreme Court’s intervening decision in Kimbrough v. United States, ___ U.S. ___, 128 S. Ct. 558 (2007). See United States v. Johnson, 584 F.3d 731, 740 (7th Cir. 2009). On remand, the district court again imposed a sentence of life imprisonment, and Mr. Johnson now appeals. We conclude that our prior remand did not permit relitigation of the drug quantity. We further conclude that the district court procedurally erred because it did not determine, after considering the sentencing factors under 18 U.S.C. § 3553(a), that resentencing Mr. Johnson under his guideline range of natural life in prison was “sufficient, but not greater than necessary, to comply with § 3553(a)(2). Id. § 3553(a). Therefore, we must vacate and remand for this determination.
Is a "drunk tank" a wise and humane alternative sanction for public intoxication?
The question in the title of this post is inspired by this interesting piece from the Houston Chronicle, which is headlined "Sober up, receive help and avoid a jail record; Drunk tank is humane, cheaper aid for alcoholics, some in city say." Here is how the piece starts:
Opening a sobering center — a drunk tank where the 19,000 people picked up for public intoxication in the city every year could be taken in lieu of jail — could save Houston money and help connect chronic alcoholics with the assistance they need, according to police, mental health advocates and a City Council member.
While there is no formal proposal, proponents envision a center staffed by substance abuse professionals who could counsel alcoholics and connect them with the housing, treatment and other services.
"It's a more humane way of dealing with alcoholics," said Houston police Lt. Mike Lee. He envisions a scenario in which those arrested for public intoxication would spend several hours sobering up, after which they would be free to go with no arrest record, no court appearances and no extended stay requiring meals, medical attention and officer supervision.
The city may be able to run a sobering center for a little more than half the $5.8 million currently spent on public intoxication annually, Lee said, cautioning that the figures are preliminary and must be vetted more thoroughly in coming months. "It's not going to be free and it's not going to be cheap," Lee said. "I think it's going to be cheaper."
The savings could be critical as Houston seeks to close a $130 million budget gap for the coming fiscal year — including a possible $33 million reduction in police spending. Mayor Annise Parker supports the concept of a sobering center as a way to reduce jail expenditures, according to a mayor's spokeswoman.
Of the Houston Police Department's 139,617 arrests last year, 19,587 were for public intoxication.
Former state judge laments "The Injustice of Sentencing Guidelines"
Glenna Hall, a retired superior court judge from Washington state, has this new commentary in The Atlantic headlined "The Injustice of Sentencing Guidelines." Here is a snippet:
For me, sentencing, particularly for drug crimes, was in many ways the hardest part of my work as a judge. Not because the decisions or the work were hard (though of course they were), but because, given the restrictive nature of the sentencing guidelines in Washington, I had virtually no discretion or authority to consider anything about the human being standing before me. I could consider only the nature of the crime, expressed in a number, and the number and kinds of offenses the defendant had committed, also expressed in a number. From those two quantified factors was derived a quite narrow range I was required to use in imposing a sentence. Except in a minuscule set of circumstances, I could only work within that range. The temptation not to think at all but rather to pick a number in the middle was strong.
One Friday afternoon, during a weekly sentencing calendar, a middle-aged man in jail clothes stood before me. Except for the orange jumpsuit, he could have been the guy behind the counter at the bank or post office. His offender score was very high; he had a pages-long list of prior convictions: relatively minor drug crimes alternating with theft convictions and other crimes related to getting money to sustain a drug habit. He wept as he told of us his long addiction and his recent attempts to get clean. He couldn't go on living this way, he said. He'd tried unsuccessfully to get into a treatment program, and he knew he wouldn't get any meaningful help in prison. He begged me to help him get into some kind of program. He was utterly convincing, and I realized he truly had grown ineffably weary of the addiction cycle and was ready to change. By the time he finished speaking, I was the only person in the room not crying. With a heavy heart, I told him the law gave me no choice: I had to give him a multiple-year sentence. There were no available exceptions, and the prosecutor had no interest in finding a way to get this man the help he needed.
People like this appeared before me week after week. I hated Fridays. I came home from work with the memory of what seemed to me to be injustices I had done. I considered resigning from the best job I had ever had. I didn't quit, and I rotated off the calendar that involved weekly sentencings. Later I volunteered to take on sentencing calendars that were harder to deal with but that carried penalties that seemed more rational to me than those required for drug crimes.
Eventually, Washington revised its drug sentencing laws to permit more leeway and more treatment options, but the state still has mandatory sentencing guidelines that can lead to harsh and unyielding results.
March 23, 2011
"Lawyers ask for review of ex-judge Camp's rulings, sentences"
The title of this post is the headline of this new article in the Atlanta Journal-Constitution. Here are excerpts:
Before he was sentenced for crimes he committed with a stripper, Jack Camp made a striking disclosure: The former federal judge revealed he has long suffered from a misdiagnosed bipolar disorder and brain damage from an accident more than a decade earlier. The revelations have lawyers wondering whether justice was meted out by an impaired jurist.
“Every case he handled from the time he was misdiagnosed, or before, depending on when he was affected by these conditions, should be re-evaluated,” said Marcia Shein, a Decatur appellate lawyer. “The question is: Did these conditions affect his ability to be an objective judge making fair decisions?”
U.S. Attorney Sally Yates told The Atlanta Journal-Constitution that her office will consider requests from defendants concerning Camp’s judgment “to ensure that justice is served.” Over the past decade, Camp handled more than 3,000 cases, but only a small fraction of those is expected to be challenged.
Bill Morrison, one of Camp’s lawyers, said the sentencing memos about Camp’s mental health sought to explain his reckless conduct in that the brain damage compromised his impulse control. But, he said, “Nothing impaired his ability to fairly and impartially act as a judge; I’m fully prepared to defend any judicial decision he made.”...
Yates had said she would not oppose requests for new hearings from defendants sentenced by Camp during the time he consumed marijuana, cocaine, Xanax and roxicontin. Of the 16 people sentenced by Camp during that period, five have asked for new hearings. At least one has received less time.
There is also a question as to whether racial bias may have affected Camp’s judicial decision-making — an allegation Camp denied. Camp told the stripper that he struggled in deciding criminal cases involving African-American men because she had previously had a relationship with a black man, said Yates, citing interviews....
But the thorny question remains: Should a review be conducted of Camp’s decisions dating to 2000, when a bicycling accident damaged the frontal lobe of his brain? At about the same time, Camp was diagnosed with depression, although doctors now say he had a bipolar disorder.
Shawn Agharkar, a psychiatrist who teaches at Morehouse and Emory medical schools, said the symptoms of people with these conditions wax and wane. When asked whether they could significantly impair a person’s judgment, Agharkar said, “Certainly that’s possible.”
Agharkar reviewed Camp’s court filings but noted he had not seen Camp’s medical records or evaluated his decision-making process. “Just because a person has a bipolar disorder and brain damage, it doesn’t automatically call into question every decision they’ve made,” Agharkar said. “It has to be considered on a case-by-case basis.”...
Defense attorney Steve Sadow said disclosures that Camp’s judgment may have been impaired could serve as a foundation to court challenges. “If someone is sitting in prison with a long sentence imposed by Camp, they might as well give it a shot,” he said. “What have they got to lose?”
Fifth Circuit rules in child porn case that no proximate causation needed to get restitution under CVRA
As Paul Cassell details in this post at The Volokh Conspiracy, on Tuesday "the Fifth Circuit gave victims of child pornography who are seeking restitution a significant victory [by accepting Paul's] arguments that the relevant restitution statute does not contain a proximate cause requirement for most categories of losses for which restitution can be awarded. As a result, a victim of child pornography need only show that she was harmed to receive, for example, restitution for lost income or psychiatric counseling expenses — not that she suffered proximate harm from a defendant’s crime."
As Paul further explains, the Fifth Circuit's ruling in In re Amy Unknown, No. 09-4123 (5th Cir. March 22, 2011) (available here), if "followed by other courts, the Fifth Circuit’s decision will likely significantly expand the restitution that child pornography victims will receive." But, as noted in this prior post, the Eleventh Circuit in another case a few months ago, US v. McDaniel, No. 09-1503 (11th Cir. Jan. 28, 2011) (available here), decided there was a proximate cause limitation on whether and when a victim can obtain restitution in these sorts of child porn downloading cases. (Notably, McDaniel cites a prior ruling in the Amy case, but this new Amy Unknown ruling does not mention McDaniel.) It is not clear that the conclusions reached Amy Unknown will carry the day in other circuits, but it is now even clearer that the US Supreme Court will have to take up this issue before too long.
The Fifth Circuit opinion in Amy Unknown is authored by Chief Judge Edith Jones, and it starts and ends this way:
“Amy,” the victim of childhood sexual abuse and of a widely broadcast set of photos depicting her abuse, has pursued restitution under the Crime Victims Rights’ Act (“CVRA”), 18 U.S.C. § 3771(a)(6), against defendants who viewed her photos on the internet. Her appeal from the district court’s denial of relief arrives in an unusual posture. She filed both a direct appeal under 28 U.S.C. § 1291 and a petition for a writ of mandamus under 18 U.S.C. § 3771(d)(3). A panel of this court denied mandamus. In re Amy, 591 F.3d 792 (5th Cir. 2009). This panel was assigned, for ease of administration, both the direct appeal and Amy’s motion for panel rehearing of her mandamus petition. We need not reach the issue whether a crime victim has a right to a direct appeal, because the district court clearly and indisputably erred in grafting a proximate causation requirement onto the CVRA. Consequently, Appellant’s petition for panel rehearing is granted; her petition for a writ of mandamus is likewise granted, and the case is remanded to the district court to determine the amount of restitution owed by Doyle Randall Paroline...
Incorporating a proximate causation requirement where none exists is a clear and indisputable error. Amy is entitled to receive restitution under the CVRA. We therefore GRANT Amy’s petition for panel rehearing and likewise GRANT her petition for a writ of mandamus. Because the district court did not quantify the amount of restitution to which Amy is entitled or the fraction attributable to Paroline, the case is REMANDED for resolution of that issue.
Some related recent federal child porn prosecution and sentencing posts:
- "Prosecutors seek nearly $200k for child porn victim"
- Notable report on latest developments in federal restitution awards in child porn downloading cases
- New student note on restitution sentences for child porn downloaders
Victim complains about Lawrence Taylor getting probation for sex crime
As detailed in this USA Today piece, the "underage girl who Lawrence Taylor admitted having sex with before a guilty plea to a sex charge said Tuesday that the sentence of probation given to the Pro Football Hall of Famer was too lenient." Here is more:
The girl -- whom USA TODAY will not identify -- told reporters after Taylor was sentenced to six years probation in a New York court that she wanted to see him got to jail. "I am not a prostitute," she said. "I am a victim and I am hurting. I don't think the sentence given to Mr. Taylor is fair."
The girl was a runaway who was sent into a hotel room with Taylor in May 2010. Prosecutors have charged Rasheed Davis with being the pimp that sent the girl into Taylor's hotel room. The Hall of Famer admitted paying $300 for sex.
This AP piece provide more details about the sentencing and details that Taylor's probation term in six years and that he must register as a sex offender.
"Hardened Criminals Held in Freedom: Doing Time on Norway's Island Prison"
The title of this post is the headline of this interesting, lengthy piece from Germany's Spiegel Online. Here is how it gets started and a few notable passages:
No bars. No walls. No armed guards. The prison island of Bastøy in Norway is filled with some of the country's most hardened criminals. Yet it emphasizes self-control instead of the strictly regulated regimens common in most prisons. For some inmates, it is more than they can handle....
There is only one pistol on Bastøy -- a bronze sculpture in the warden's office. The warden, Arne Nilsen, is a slim man in his early sixties, a man who doesn't need a uniform to convey his authority. He doesn't know where the pistol came from. It's always been there.
The warden is a man who deals in freedom. He is also a visionary. He wants the men here to live as if they were living in a village, to grow potatoes and compost their garbage, and he wants the guards and the prisoners to respect each other. What he doesn't want is a camera in the supermarket. He doesn't want bars on the windows, or walls or locked doors.
The inmates on Bastøy have been convicted of crimes such as murder, robbery, drug dealing, fraud, violent crime and petty theft. "We don't pick out the mild cases," says Nilsen. Some inmates serve their entire sentences on the island. Murderers can only apply to be transferred to the island once they have served two-thirds of their sentences elsewhere. Some 115 prisoners live on Bastøy, and those who wish to stay are required to work and integrate into the community. Anyone caught drinking alcohol or fighting is thrown out....
This paradise has been around for 20 years -- and has a warden who loves statistics. The numbers, after all, prove him right. Only 16 percent of the prisoners in this island jail become repeat offenders in the first two years after leaving Bastøy as compared with 20 percent for Norway as a whole. In Germany, where recidivism is measured after three years, the rate is 50 percent.
The warden also feels vindicated because there has never been a murder or a suicide on the island -- and because no one left Bastøy last winter even though the sea ice was frozen solid.
March 22, 2011
Defense lawyers in three states urging DOJ to look into execution drug sources
As detailed in this AP article, "attorneys in Arizona and Kentucky joined a lawyer in Georgia on Tuesday, calling on the Justice Department to investigate how the states acquired a key lethal injection drug that is in short supply in the U.S." Here is more:
The requests come as many of the 34 death penalty states scrambling to find an alternative for lethal injections after the sole U.S. maker of sodium thiopental said earlier this year it would no longer produce it. Justice Department officials didn't immediately return telephone calls Tuesday, but previously have said they were reviewing a request for an investigation an attorney in Georgia. Drug Enforcement Administration officials confirmed a week ago they had seized Georgia's supply of the drug.
Meanwhile, Mississippi Attorney General Jim Hood said the state was still trying to get sodium thiopental from other states, but officials may have no choice but to switch to another drug, which would be probably be pentobarbital. "We're still looking into using this other substance (sodium thiopental), but we aren't really confident that we're going to get some," he said.
Texas and Oklahoma recently announced the switch to pentobarbital, and plan to use it along with two other drugs. Ohio became the first state to use pentobarbital alone when it executed an inmate with the drug March 10.
Kentucky public defender David Barron said in a letter to the Justice Department that there were multiple questions about how CorrectHealth, a Stockbridge, Ga.-based company, got a supply of sodium thiopental to sell to Kentucky. Barron also wants to know if Kentucky officials complied with federal law when it contacted Kayem Pharmaceuticals in India. Barron represents Ralph Baze, who was sentenced to death for killing a sheriff and a deputy. "It is likely that illegally imported or possessed thiopental will be used in the execution of Mr. Baze and multiple other individuals on Kentucky's death row," Barron wrote....
Eight days after getting the drug from the Georgia company, Kentucky officials contacted Kayem Pharmaceuticals in India, according to documents obtained by The Associated Press. But the state opted not to buy the drug because it is sold in packs of 500 single-gram vials for about $5,000, which is more than the state needs. "It would require us to alter our normal procurement process and would require Kentucky to obtain enough thiopental for more than 80 executions -- a quantity which would expire long before it could be utilized," Kentucky Justice Cabinet spokeswoman Jennifer Brislin said....
In Arizona, federal public defender Dale Baich called for the Justice Department probe because the state bought supplies of sodium thiopental from Dream Pharma, a British company that some defense attorneys have described as a fly-by-night operation. "We believe the state did not comply with all the DEA regulations in obtaining the drugs," Baich said Tuesday.
Noting Justice Alito's lack of empathy for criminal defendants
I just got around to reading Emily Bazelon's interesting profile of Justice Samuel Alito from this past weekend's New York Times magazine. The piece, headlined "Mysterious Justice," is not especially kind as Bazelon contends that Justice Alito provides “a window onto right-wing empathy on the court — and onto conservative instincts generally about who deserves our solicitude.” And these passages should be viewed as spot-on by sentencing law and policy fans:
Alito’s sense of empathy never seems to involve an act of imagination; it rarely extends to people who are not like him. Alito had no kind words for Lilly Ledbetter, for example, who for almost 20 years was paid less than the men doing the same job she held as a supervisor at Goodyear Tire and Rubber. In 2007, he wrote the 5-4 decision turning away Ledbetter’s sex-discrimination suit because she didn’t go to court soon enough; she didn’t know about the pay discrepancy until years later. (Congress disagreed with the Supreme Court’s ruling and passed a law to scrap it.) In general, Alito has been no more likely to uphold civil rights claims than Roberts, and only somewhat more likely than Scalia and Thomas.
Meanwhile, Alito is the least likely justice to show a glimmer of concern for the rights of criminal defendants. He has ruled for the defense in only 17 percent of the criminal cases he has heard since he joined the court, putting him to the right of Roberts, Scalia, Thomas — and every other justice of the past 65 years other than William Rehnquist, according to Lee Epstein, a professor of law and political science at Northwestern, who ran the numbers for me in the Supreme Court database she works with.
All the pieces of Alito’s record fit together. As a prosecutor, a federal-appeals judge and now as a Supreme Court justice, Alito is defined not by his broad ideas but by his consistency. Instead of the pizzazz of Scalia or the polish of Roberts, Alito makes his mark by getting to the outcomes conservatives favor with whatever tool is at hand and with even more predictability.
Is it really surprising that some prison treatment programs are now run poorly?
The question in the title of this post is inspired by this editorial in today's New York Times, which is headlined "New York’s Prisons Fall Short, Again" and goes like this:
Perhaps as many as three-quarters of New York State’s 57,000 prison inmates need drug counseling or treatment to have a chance at productive, crime-free lives once they are released. A three-year study of drug and alcohol abuse programs in the New York State Department of Corrections suggests that prisons are failing to provide adequate treatment programs for the tens of thousands of inmates who need them.
The study by the Correctional Association of New York, a nonprofit group, examined drug treatment programs at 23 of the state’s nearly 68 facilities. It found that the programs varied wildly in effectiveness and that most departed significantly from best practices laid out by the addiction research division of the federal Department of Health and Human Services.
The New York prison programs have several deficiencies in common. They fail to screen candidates based on the severity of their problems, which means they wastefully enroll large numbers of people in intensive programs they don’t need. They also routinely enroll poorly motivated inmates, which limits effectiveness. In a particularly glaring oversight, they fail to coordinate prison treatment programs with those offered in the communities to which the inmates will return.
The correctional association’s researchers found model treatment programs in at least four state prisons, including Hale Creek in upstate Fulton County. According to the report, these prisons use a three-phase system that begins with a six-month residential treatment program, in which the targeted inmates live in a separate prison dorm. This is followed by an integration component, under which people typically receive treatment during work release. Finally, newly released men and women are formally enrolled in community programs.
According to the study, the Department of Corrections could improve drug treatment without spending any more than the estimated $19 million it currently devotes to this problem by deploying the existing staff in better designed programs. The result would be better drug treatment, safer communities and less recidivism.
Though it is discouraging to hear about poorly run prison treatment programs, I find heartening the news that some prison are already running model programs. Modern prisons have not generally been designed nor incentivized to develop and run effective treatment programs, and thus I find it more surprising that some prison treatment programs are already running so well than that some are running so poorly.
I fear it is inevitable that prison treatment programs will face various difficulties unless and until legislators and other policy-makers make clear that they will consistently fund and reward those facilities that provide the most effective treatment programming. Tight budgets and overcrowded prisons seem to be leading more and more folks to talk a good game about the importance of development effective rehabilitative programs, but all the "smart on crime" rhetoric has to become real reform and funding priorities before anyone should hope that all prison treatment programs will be following modern best practices.
"Sale of prisons, fewer inmates part of budget plan"
The title of this post is the headline of this interesting article from my own Columbus Dispatch this morning. Here is how it gets started:
Sell five prisons, and privatize two. Reduce the population by 2,000 inmates. Save $10 million in medical costs. Ohio prisons chief Gary Mohr has big goals.
While some lawmakers questioned how he plans to reach those goals, none in yesterday's three-hour legislative hearing appeared intent on derailing prison-system changes integral to Gov. John Kasich's budget.
In the first airing of the proposed $2.97 billion biennial prison budget, Mohr made it clear that his proposed changes won't be easy, nor will they be accomplished without pain; 171 state employees would lose their jobs. "I do not envy you the decisions you will have to make in this budget," Mohr told the House Finance Committee, which is considering Kasich's $55.5 billion proposal. He said the budget, while imperfect, "leads us in the right direction to meet our core functions of safety, security and meaningful programming."
Mohr, a veteran of Ohio and private prison operations, said the fiscal alternative to selling five facilities was shutting down several Ohio prisons and shipping as many as 12,000 inmates out of state. "This director will not build another prison," he said.
If the legislature adopts proposed changes in sentencing, Mohr said, he expects to reduce the prison population by about 2,000 over two years. The Office of Budget and Management included $50million in the budget from sales of prisons in Conneaut, Grafton (two), Marion and a closed youth-detention center, also in Marion. Mohr said he expects the sale to generate $200million. Prison officials said they are still paying off the two private prisons, both of which opened in 2000.
State Rep. Vernon Sykes, D-Akron, asked Mohr how private companies can operate prisons at a lower cost than the state. Mohr said private companies pay less and allow less vacation, sick and personal time. It takes two state employees to staff a position for a week but requires 1.7 private employees to do the same job, he said. "We are paying more people to be off more often than they are." The bottom line, he said, is that private prisons require 45 fewer people to fill 150 spots than the state.
March 21, 2011
Some interesting criminal justice action from the SCOTUS order list
As detailed in this SCOTUSblog post, the Supreme Court came back to work today with an order list heavy on criminal justice activity. Here are some of the particulars via SCOTUSblog:
This morning, the Court issued orders from the Justices’ March 18 Conference, granting certiorari in two cases, inviting the views of the United States in one case, releasing a summary decision in one case, and providing a written statement respecting the denial of certiorari in one case.... Today’s full order list [includes grants in ...]
Maples v. Thomas...: "Whether the Eleventh Circuit properly held that there was no “cause” to excuse any procedural default where petitioner was blameless for the default, the state's own conduct contributed to the default, and petitioner's attorneys of record were no longer functioning as his agents at the time of any default."...
Rehberg v. Paulk...: Whether a government official who acts as a “complaining witness” by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages....
[Also, the ] Court issued a summary per curiam decision in Felkner v. Jackson (found here) , which reverses the decision of the Ninth Circuit in a case involving the alleged use by prosecutors of peremptory challenges to exclude blacks from the jury based upon their race.
UPDATE: Major papers now have some major stories on these SCOTUS developments:
- From the New York Times here, "Court to Hear Case Stalled by Mistake in Mailroom"
- From the Los Angeles Times here, "Supreme Court restores California rape conviction, rebukes appeals court; The justices rebuke the 9th Circuit Court of Appeals for overturning Steven Jackson's conviction; Hinting at irritation, the high court calls the earlier opinion 'inexplicable'".
"State jobs cut due to end of death penalty"
The title of this post is the headline of this local piece out of Illinois. Here are the details:
The state of Illinois' decision to eliminate the death penalty means about three dozen state employees will soon be out of work. The Decatur Herald & Review reports that State Appellate Defender Michael Pelletier began notifying about 37 employees in his office on Friday that their jobs are being eliminated.
That's because Gov. Pat Quinn abolished the death penalty earlier this month and commuted the sentences of the 15 men on death row. Most of the employees being cut are lawyers who handled death penalty cases. The reduction will save about $4.7 million.
Will the spectacle of the Barry Bonds trial be good or bad for perceptions of federal criminal justice?
As noted in this San Francisco Chronicle article, which is headlined "Barry Bonds trial: Expect a 'heavyweight' fight," a federal district court in California is getting a running start on baseball season with the start today of Barry Bonds' federal criminal trial for perjury. Here is some of the backstory with a bit of sentencing perspective on the forthcoming spectacle:
Bonds was indicted on charges of perjury and obstruction of justice, accused of lying under oath when he told a grand jury in 2003 that he had never knowingly used steroids.
Now, in a trial that is scheduled to get under way Monday in U.S. District Court in San Francisco, a jury will be asked to decide whether baseball's home run king set his historic mark while using a long list of banned drugs. He has pleaded not guilty.
For Bonds, 46, who has not played baseball since he was indicted, the stakes are high —even though most experts doubt he will face prison if convicted. In 2008, Bonds' trial judge, Susan Illston, sentenced two defendants who were convicted of lying to authorities about steroids in sports to home confinement, not prison. That sets a baseline for sentencing Bonds if he is convicted, experts say.
The trial represents a chance for Bonds to repair a reputation badly tarnished by his association with the BALCO steroid scandal, and, perhaps, to secure a place in baseball history that might otherwise be denied him. If Bonds is acquitted, his chances of being elected to the Hall of Fame "go way up," said former Major League Baseball Commissioner Fay Vincent. "But if he gets convicted, it's the end of the discussion for at least 30 years."
Meanwhile, the trial is likely to further roil a sport that has been unable to get past what has been called its "steroid era" — 15 years when baseball was rife with performance-enhancing drugs. Even after Bonds' trial is over, more turbulence is likely: In July, former All-Star pitcher Roger Clemens is scheduled to go on trial in Washington, charged with lying under oath when he told a congressional committee that he had never used steroids.
Whatever the outcome, the Bonds trial will probably be "a hard-fought battle, like a heavyweight championship fight," said defense lawyer William Keane, who defended Olympic track coach Trevor Graham in 2008 in a case similar to Bonds'.
As is my tendency, I likely will pay relatively little attention to the Bonds case unless and until he is convicted and faces sentencing. Nevertheless, on the eve of his trial, I wonder if readers have thoughts about the question that titles this post: do we think the Bonds trial will be good or bad for how the public perceives the federal criminal justice system? And does the answer to this question inevitably depend on the outcome?
March 20, 2011
Notable new forthcoming book on juve crime and punishment
I am pleased to see that Professors Christopher Slobogin and Mark Fondacaro have a new forthcoming book on juvenile justice which is titled "Juveniles at Risk: A Plea for Preventive Justice." I am also pleased to have discovered that the first chapter of this forthcoming book is now available via SSRN here. This is the abstract the authors have now posted on SSRN:
The current approach to the juvenile crime problem is insufficiently conceptualized and too beholden to myths about youth, the crimes they commit, and effective means of responding to their problems. The currently dominant punitive approach to juvenile justice, modeled on the adult criminal justice system, either ignores or misapplies current knowledge about the causes of juvenile crime and the means of reducing it.
We argue that, with some significant adjustments that take this new knowledge into account, the legal system should continue to maintain a separate juvenile court, but one that is preventive in orientation, with a new emphasis on both rehabilitation and flexible procedures. The view that culpability should be the linchpin of juvenile justice (touted by liberals as well as conservatives) is misguided, not only because it leads to unnecessarily harsh punishment but also because it deemphasizes crime-reducing interventions and undermines the case for handling adolescent offenders through a system that is independent of the culpability-based adult system. The currently popular view that adult-type procedures should govern the juvenile process is also open to serious doubt, given social science research that questions the extent to which such procedures promote accuracy and fairness.
Chapter 1, which elaborates on the book’s thesis, is provided here.
This book is especially timely in the wake of the Supreme Court's work last year in Graham v. Florida. Though Graham involved constitutional limits on punishment, the ruling should be viewed by legislatures as a call to begin re-thinking the modern approach to juvenile crime and punishment more broadly.