April 4, 2011
"Cost and Punishment: Reassessing Incarceration Costs and the Value of College-In-Prison Programs"
The title of this post is the title of this new piece by Gregory Knott, which is now available via SSRN. Here is the abstract:
This article argues that college-in-prison programs are an effective response to prison population growth and cost explosions -- admittedly on a limited scale. The programs reduce long-term costs through investments in education. Such offerings are not suitable for every prisoner, but can be highly effective for those individuals in a position to benefit from devoting time in prison to learning.
The article begins with an overview of the untenable situation in U.S. prisons, including the burden of the population and cost boom in prisons across the country. Second, the article examines the prison population to determine which individuals there might benefit from education. Third, the study considers theories of penology and the place an education program might occupy in the respective theories. Fourth, the article describes college-in-prison programs and their efforts to address the needs of both prisoners and the populace paying for the prison system. Finally, the article considers the role of college-in-prison programs as part of the risk management paradigm currently predominant in criminal justice systems.
Is "death penalty sentencing as important as innocence" for review by prosecutors?
The question in the title of this post is inspired by this guest blog post authored by Lisa Graybill, Legal Director of the American Civil Liberties (ACLU) of Texas, appearing at the website of the Dallas Morning News. The piece is headlined "Review of unfair death penalty sentencing as important as innocence," and here is how the piece starts and ends:
Though death sentences and executions have declined in recent years in Texas, the state remains the national leader in executions. The Dallas County District Attorney's Office, under Craig Watkins's leadership, should be commended for taking a serious look at the questionable procedures and shoddy evidence routinely used in the past that have plagued former administrations and led to scores of wrongful convictions. But Dallas County still remains a leader among Texas counties in seeking and receiving death sentences and is on track to replace Harris County as the infamous "capital of capital punishment." Its recent handling of decades-old capital cases, including the resentencing trials of Ronald Chambers and Fernando Garcia and the retrial of Jonathan Bruce Reed now taking place, reveal serious shortcomings in its consideration of capital cases and decisions to seek death and its total unwillingness to review the unfair sentencing practices it inherited....
Since his election in 2006, District Attorney Craig Watkins has made a very public commitment to reform. He deserves praise for the establishment of the Conviction Integrity Unit in his office and his willingness to take a look at the mistakes of the past. In seeking death sentences against Mr. Chambers, Mr. Reed, and Mr. Garcia, however, he has not distanced himself from the misconduct left at his door by former administrations. A true commitment to justice and integrity requires not only taking a look at the sad legacy of wrongful convictions, but bringing the same level of scrutiny to the unfair and troubled sentencing practices of the past. He had the opportunity to do so in Mr. Chambers' case, but of course, for Mr. Chambers it is now too late. However, Mr. Watkins still has an opportunity to consider the tainted legacy and extend his promise of reform to sentencing in other capital cases, starting with the retrial of Jonathan Bruce Reed and the resentencing trial of Fernando Garcia. He should do so.
Because I do not know a lot of the specifics, I am in no poistion to comment on the merits of the capital cases against Chambers, Reed, and Garcia. What I do know is that prosecutors generally have precious little time and often even less interest in reviewing and reconsidering decisions made by prior prosecutors. For this reason (and some others, including the fact that courts will rarely hear innocence claims but often will allow repeat attacks on "unfair and troubled" capital sentencing practices), I am pleased to learn that Dallas County DA Watkins is giving more attention to innocence review than to death sentence review. But perhaps others agree with the suggestion that each are just as important.
"Medical marijuana users fight for gun rights"
Cynthia Willis calls up and down the firing range to be sure everyone knows she is shooting, squares up in a two-handed stance with her Walther P-22 automatic pistol and fires off a clip in rapid succession. Willis is not only packing a concealed handgun permit in her wallet, she also has a medical marijuana card. That combination has led the local sheriff to try to take her gun permit away.
She is part of what is considered the first major court case in the country to consider whether guns and marijuana can legally mix. The sheriffs of Washington and Jackson counties say no. But Willis and three co-plaintiffs have won in state court twice, with the state's rights to regulate concealed weapons trumping federal gun control law in each decision.
With briefs filed and arguments made, they are now waiting for the Oregon Supreme Court to rule. When it's over, the diminutive 54-year-old plans to still be eating marijuana cookies to deal with her arthritis pain and muscle spasms, and carrying her pistol. "Under the medical marijuana law, I am supposed to be treated as any other citizen in this state," she said. "If people don't stand up for their little rights, all their big rights will be gone."...
Oregon sheriffs are not happy about the state's medical marijuana law. "The whole medical marijuana issue is a concern to sheriffs across the country who are involved in it mainly because there is so much potential for abuse or for misuse and as a cover for organized criminal activity," said Washington County Sheriff Rob Gordon, who became part of the Willis case because his office turned down three medical marijuana patients in the Portland suburbs for concealed handgun permits. "You can't argue that people aren't misusing that statute in Oregon. Not everybody, of course. Some have real medical reasons. But ...the larger group happens be people who are very clearly abusing it."
The sheriffs argue that the 1968 U.S. Gun Control Act prohibits selling firearms to drug addicts, and they say that includes medical marijuana card holders. Their briefs state that they cannot give a permit to carry a gun to someone prohibited from buying or owning a gun. But the cardholders have won so far arguing this is one situation where federal law does not trump state law, because the concealed handgun license just gives a person a legal defense if they are arrested, not a right.
Oregon's attorney general has sided with the marijuana cardholders, arguing that the concealed handgun license cannot be used to buy a gun, so sheriffs who issue one to a marijuana card holder are not in violation of the federal law....
Sixteen states now have medical marijuana laws, according to NORML, an advocacy group. There is no way to determine how many medical marijuana cardholders also have gun permits. Patient lists are confidential, and an Oregon court ruled the sheriffs can't look at them.
NORML executive director Allen St. Pierre said Oregon courts have not been entirely medical marijuana friendly. While they have upheld the right to pack a pistol, they have also ruled that employers can fire people who use medical marijuana. "A person who uses medical cannabis should not have to give up their fundamental rights as enumerated by the Constitution,"' St. Pierre said. Gordon said he expects the gun issue to come up in other states with medical marijuana laws.
Celebrating (and learning from) extraordinary reductions in highway deaths
Because bad news always gets much more attention than good news, the latest great news concerning highway fatalities coming from official statistics did not get nearly as much attention as it should. Here are the AP story highlights, with commentary to follow:
Highway deaths have fallen to levels not seen since the Korean War, helped by more people wearing seat belts, better safety equipment in cars and efforts to curb drunken driving.
The Transportation Department estimated Friday that 32,788 people were killed on U.S. roads in 2010, a decrease of about 3 percent from 2009. It's the fewest number of deaths since 1949 — during the presidency of Harry Truman — when more than 30,000 people were killed. Since 2005, highway deaths have fallen about 25 percent.
The Pacific Northwest region, which includes Washington state, Oregon, Idaho, Montana and Alaska, saw fatalities fall 12 percent. Western states including Arizona, California and Hawaii also posted large declines.
Government officials said the number of deaths was still significant but credited efforts on multiple fronts to make roadways safer. "Too many of our friends and neighbors are killed in preventable roadway tragedies every day," said Transportation Secretary Ray LaHood. "We will continue doing everything possible to make cars safer, increase seat belt use, put a stop to drunk driving and distracted driving and encourage drivers to put safety first."...
[P]eople spent more time in their cars last year, making the estimates more noteworthy. The number of miles traveled by American drivers in 2010 grew by 20.5 billion, or 0.7 percent, compared with 2009, according to the Federal Highway Administration. The number of miles traveled increased slightly in 2009 after declines in the previous two years.
Separately, the rate of deaths per 100 million miles traveled is estimated to have hit a record low of 1.09 in 2010, the lowest since 1949. The previous record was in 2009, which had a rate of 1.13 deaths per 100 million miles traveled. "It's a really good sign that fatalities are down despite the fact that (vehicle miles traveled) is up," said Barbara Harsha, executive director of the Governors Highway Safety Association.
Harsha said fewer people were dying because of a number of factors related to vehicle technologies, safer driving and road designs. Safety equipment such as side air bags that guard the head and midsection in a crash and anti-rollover technology like electronic stability control are becoming standard equipment on new cars and trucks.
Judie Stone, president of the safety group Advocates for Highway and Auto Safety, said the proliferation of air bags in new cars, beyond the frontal air bags used to protect the driver and front-seat passenger, was making a difference. "In addition to having more cars with air bags, you have more air bags in cars," Stone said.
Many states have been more vigilant on drunken driving. Alcohol-impaired driving fatalities fell more than 7 percent in 2009 from the previous year. And seat belt use, the most basic defense in a crash, reached an all-time high of 84 percent in 2009. Several states have allowed police to stop a vehicle for failure to wear a seat belt even if the officer doesn't detect another driving violation like speeding.
John Whatley, who serves as interim president and chief executive of the Alliance of Automobile Manufacturers, said the numbers showed that "auto travel today is safer than ever before — not because of an economic slump, but because automakers have worked with other stakeholders to bring innovation to autos."
The full report from the US Government providing an "Early Estimate of Motor Vehicle Traffic Fatalities in 2010" is available here
As my post title reveals, my first reaction to this news is to celebrate. Many more American die each year from roadway deaths than any other man-made threat (e.g., there have been only about 15,000 homicides per year in the US recently), and it appears that going for a drive is now safer for all of us than ever before in modern times.
My second reaction to this news is to encourage all folks concerned about public safety to look for refined and repeatable lessons from this success story. It seems that a combination of public policies, including having the criminal justice system in a supportive but not leading role, has helped contribute to these developments. Thus, whether the concern is drug use or gun violence or sex offenses, it may be a refined combination of public policies with the criminal justice system in only a supportive role that helps achieves the greatest public safety success.
Seniors looking at functional life prison terms for selling prescriptions
Because I always find the intersection of age and aging issue and sentencing considerations to be interesting and dynamic, this lengthy local article from Oklahoma caught my eye. The piece is headlined "Seniors might die in prison: Two elderly Oklahomans are facing the possibility of spending the remainder of their lives in prison. They’re accused crimes? Selling their prescriptions." Here is how the piece gets started:
Old age doesn’t preclude a person from committing a crime, and in the cases of two elderly Oklahomans, it also doesn’t rule them out from possibly spending the remainder of their lives in prison on drug complaints.
Opal Verndean Wesley, 73, of Bristow, was charged Friday in Creek County on complaints of possessing controlled prescription drugs with intent to distribute and for having a firearm after prior felony convictions. If convicted, she faces six years to life in prison. She was booked into the Creek County jail Friday.
Nearly 200 miles south in Love County, Louis Harold Norton, 70, of Marietta, accepted a plea deal on March 24 for 30 years in prison with 15 suspended. The plea stemmed from two 2009 felony charges of distributing painkillers. He is currently in the Department of Corrections custody.
They don’t know each other, but officials say it’s eye-opening and troubling that senior citizens are selling their legally obtained prescriptions. Though these are rare cases, these two could spend their twilight years behind bars.
Oklahoma Department of Corrections records show about 9 percent of the nearly 26,000 incarcerated are older than 51 years old. Nearly 30 percent of the prison population is serving time for drug crimes.
“We can’t just say this guy is old so we’re not going to prosecute,” said Love County Assistant District Attorney Paule’ Wise. The prosecutor in Wesley’s case, Creek County Assistant District Attorney Mike Loeffler, echoed the same sentiment: “It’s hard to be blind to age, but selling these drugs is for no other purpose than economic gain.”
Oklahoma Bureau of Narcotics and Dangerous Drugs Control spokesman Mark Woodward said the argument is sometimes made that selling prescriptions becomes the only way for the elderly to supplement Social Security benefits and make money. “More people die from these drugs than street drugs,” he said. “Age has nothing to do with greed and that’s what this is.”
I believe very strongly that being old or even infirm should not preclude prosecution for crimes, and I do not know anyone who seriously contends that old age should be a complete defense to criminal conduct. But this reality just heightens the pressure and challenge of sentencing older offenders who, when convicted of non-violent crimes, seem quite unlikely to pose a significant threat to the public and who also may suffer more (and cost more) when incarcerated during their twilight years.
SCOTUS grants cert on important AEDPA habeas issue, while also resolving another
According to the early report at SCOTUSblog, the Justices this morning granted cert in Greene v. Fisher, which this SCOTUSblog page explains concerns this issue:
For purposes of adjudicating a state prisoner's petition for federal habeas relief, what is the temporal cutoff for whether a decision from this Court qualifies as “clearly established Federal law” under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996?
As regular habeas litigators already know, this is a very important issue for state habeas cases in federal courts and one that should benefit greatly from SCOTUS attention.
In addition, the Justices today handed down its opinion in Cullen v. Pinholster, which SCOTUSblog describes this way:
Review under the federal habeas law is limited to the record that was before the state court that ruled on the claim on the merits. Opinion is by Justice Thomas; the Ninth Circuit is reversed. There is a partial dissenting opinion by Justice Breyer; Justice Sotomayor has filed a dissent joined in part by Justices Ginsburg and Kagan.
The opinion in Cullen is available here.
April 3, 2011
Should citizens be able to look up drunk drivers along with sex offenders?
The question in the title of this post is inspired by this interesting new piece from the Bangor Daily News, which is headlined "Drunken-driver website proposal stirs debate." Here are excerpts from the piece:
More than 8,000 Mainers were arrested for drunken driving in 2009, the most recent statistics available, and Rep. Rich Cebra, R-Naples, says Mainers should know who those drivers are. “I want a website at [the Maine Department of] Public Safety that will have their names and addresses and their picture,” he said. “People need to know about drunk drivers that might be living next door and taking their kids to soccer practice.”
Cebra said his measure would establish the website so that Mainers could search their community to see if any neighbors are convicted drunken drivers, and whether they are multiple offenders. He said it would be similar to the state sex offender website but would not be a registry. “This would depend on the conviction information that is already being collected,” he said, “and I am proposing a $25 surcharge on every OUI conviction to pay for the website construction and operation.”
The measure has been referred to the Legislature’s Criminal Justice Committee and will have its hearing later this month. Rep. Gary Plummer, R-Windham, the co-chairman of the panel, said he has a problem with any proposed websites to publicize a person’s conviction of any offense except the sex offender registry. “We have looked at several other requests, whether it is animal abusers or arsonists,” he said. “Every site that we create like that is very expensive. We don’t have the money.”
Plummer also doubted whether such a website would have a deterrent effect. He said those that drink and drive really don’t think about what will happen to them when they get caught even though fines and long license suspensions have been added to the penalties for drunken driving over the years.
Shenna Bellows, executive director of the Maine Civil Liberties Union, said that while the concern about drunken drivers on the roads is a real one that she shares, she opposes the website as a solution to the problem of protecting family members from drunken drivers....
Sen. Bill Diamond, D-Windham, who served as secretary of state for a decade, said that while he supports the sex offender registry because of the nature of the crimes involved, he does not think a publicly available website listing those convicted of OUI would help with the problem of drunken driving....
But Cebra is not deterred by the opposition to his proposal. He said most Mainers are very upset at the number of drunken drivers who are back on the roads just weeks or months after being convicted of OUI. “What really gets me is the person who is that fourth-time offender that is only losing their license for 90 days,” he said. “This may not be the perfect answer, but we have to start looking at this; we are not being serious about this.”
Cebra said there have been decades of discussions about drunken drivers, and he said it is time to try to do something to reduce the numbers. He said too many families have had to experience a tragedy from a drunken driver killing or injuring a loved one to simply do nothing.
Regular readers know that I have long been troubled by the threats posed by drunk drivers and have long believed that communities ought to be as worried about drunk drivers as they are about sex offenders. I am generally agnostic concerning the use of any crime registries unless and until research effectively demonstrates that they foster public safety. But it seems to me that if they make sense for sex offenders then they also should make sense for drunk drivers.
A few older related posts on sentencing drunk drivers and criminal registres:
- Shouldn't we be much, much tougher with drunk drivers?
- Technology versus toughness to combat drunk driving
- Why do we worry so much more about sex offenders than drunk drivers?
- Georgia Supreme Court upholds sex offender registration for non-sex convictions
- Extended ABAJ article about sex offender registries
- An important new book on criminal registries: "Knowledge as Power"
New paper suggests business approach to the fighting the drug war
Professor Mark Osler has this notable new paper up on SSRN titled "What Would it Look Like If We Cared About Narcotics Trafficking? An Argument to Attack Narcotics Capital Rather than Labor." Here is the abstract:
As the failure of the “War on Drugs” becomes ever more obvious, alternative strategies are coming to the fore. This article adds to that movement with a novel suggestion: That we cause drug networks to fail as a business through the tactic of focusing resources on the seizure of cash flow traveling back to source countries.
To date, federal narcotics interdiction has centered on restricting the labor supply to drug traffickers by incarcerating street dealers, mules, and middle managers. It shouldn’t be surprising that this has not worked, because low-wage labor is in ready supply, and those workers are easily replaced. Instead, we should leverage the skills we have gained in interdicting cash flowing to terrorist organizations and apply it to drug networks. The result could be a self-financing law enforcement effort, a federal effort that is more consistent with the core values of federalism and a belief in markets, and an actual chance to succeed at the task of restricting the flow of narcotics.
Detroit's Granny Valjean gets probation and home confinement for Social Security fraud
Last week I asked in this post what would seem a fitting federal sentence for an elderly woman who fraudulently received nearly $120,000 in Social Security benefits over a 20-years period and used the funds to raise and support her grandkids. Here is the news report on her actual sentencing:
In the end, the judge showed her mercy. Mary Alice Austin, a Detroit grandmother who admitted she stole from the government because she needed money to help raise her five grandchildren, avoided a prison sentence Friday when a federal judge gave her probation instead. But Austin will have to pay back $119,000 in restitution and will serve four months in home confinement on a tether.
U.S. District Judge Victoria Roberts issued the sentence after Austin, 67, pleaded for her freedom. She faced 10-16 months in prison for unlawfully receiving her son's disability checks while he was in prison. "Please understand me. Please," a frail-looking Austin said at her sentencing.
Austin told the judge she still has a mentally ill son in an institution to look after. She also talked about the struggles she faced in raising five grandchildren and said desperate times forced her to make a bad choice. "I am remorseful," Austin said. "I got scared. I got very scared."
According to court records, Austin paid someone to pose as her mentally ill son so she could continue receiving his disability benefits while he was in prison. From 1990 to 2009, Austin received nearly $120,000 in benefits -- about $6,000 a year, records show....
At Austin's sentencing, Assistant U.S. Attorney Blondell Morey conceded Austin doesn't present a threat to the public but pushed for prison time. "I think basically Ms. Austin is a good woman, but she did some bad things. ... And she needs to be punished."
Notable coverage of the fates of teen lifers in Colorado and Florida
Today's newspapers include these two stories from two different parts of the country concerning the fates of defendants sentences to life for crimes committed a teenagers:
From the Orlando Sentinel here, "'Lifers' sentenced as teens: Do they deserve a 2nd chance?"
From the Pueblo Chieftain here, "Juvenile 'lifers' afraid to hope"