April 16, 2011
The distinctive whiteness of federal child porn offenders
As noted in this post, part of my plans for this weekend (besides watching lots of NBA playoff games) is trying to mine some interesting stories from the just-release FY2010 federal sentencing data now available here on the US Sentencing Commission's website. And the first datum that jumped out at me from the tables I started perusing concerns the race of offenders in each primary offense category as set forth in this table.
Specifically, if one looks closely at only those offenses in which 1000 or more cases were sentenced in FY 2010, one sees that in all but one notable instance, the percentage of offenders who were white is below 50%. For drug trafficking offenses, for example, only 26% of sentenced offenders were white; for firearm offenses, only 29% of sentenced offenders were white; for fraud offenses, only 47% of sentenced offenders were white. But for child pornography offenses, a full 89% of sentenced offenders in FY 2010 were white. (I have sometimes joked that, for federal sentencing purposes, kiddie porn is kind of like the white guys' crack, and this data highlights this (useful?) analogy is true in at least on notable way.)
One could (and perhaps should) put lots of spin on these racial demographic realities of federal offense sentencing. For this post, however, I just want to note the outlier reality of child porn offenses and see what others (particularly federal sentencing practitioners) might want to say about it.
Lots of news of note via The Crime Report and DPIC
- Conservatives Embrace Justice Reform in Capitol Hill Panel
- Key Connecticut Committee Approves Death Penalty Repeal Bill
- WA Gov Won't Sign Medical Pot Law After Fed Threat to Prosecute
- Federal Government Spending Millions Pursuing Death Penalty for Inmate with Life Sentence
- U.S. To Pay for 200 Fewer Local Cops Under Federal Budget Deal
- Texas Psychologist Who Approved Defendants for Execution Barred from Future Work
April 15, 2011
"Mother sentenced to 8-10 years for withholding cancer meds from son"
The title of this post is the headline of this articlereporting on the sentencing outcome in a fascinating and high-profile filicide case out of Massachusetts. Here are the details:
Kristen LaBrie, the mother who withheld cancer medications from her young autistic son who later died of his illness, was sentenced today to eight to 10 years in state prison for her conviction of attempted murder.
"At the end of the day, Ms. LaBrie’s actions were extended, secretive, and calculated. They were acts that really do chill one’s soul. This type of conduct really does demand punishment, albeit tempered with mercy," Essex Superior Court Judge Richard Welch said as he sentenced LaBrie. A prosecutor had recommended that LaBrie serve 16 to 17 years in prison, while her defense attorney recommended one year, with a lengthy probation period.
A tearful LaBrie apologized at the sentencing hearing this morning for withholding the medicine from her son Jeremy Fraser. “I am remorseful for my actions and I wish I could have done things differently,” LaBrie told the court. "If I could do it differently, I would because I certainly miss my son every day.”...
LaBrie, 38, who lived in Beverly and Salem, was convicted Tuesday on charges of attempted murder, assault and battery on a disabled person with injury, assault and battery on a child with substantial injury, and reckless endangerment of a child. Welch also sentenced her to five years of probation.
Authorities say her son was diagnosed with a treatable case of non-Hodgkin's lymphoma in October 2006, just after he turned 7, but Labrie failed to administer chemotherapy. By the time his doctors realized the boy was not taking his medication, his condition had progressed to leukemia. The boy was placed in the custody of his father, then died in a hospice in March 2009 at the age of 9.
"This was a tragic and difficult case," Essex District Attorney Jonathan W. Blodgett said in a statement. "For the Commonwealth this prosecution was always about justice for Jeremy." The defense had argued that LaBrie was overwhelmed by the pressures of caring for an ailing autistic son. "Her judgment waned, her objectivity waned, and she made an awful, awful mistake," said defense attorney Kevin James....
Welch said he felt sympathy for LaBrie, noting there was “little doubt that Ms. Labrie was placed in an extremely trying and exhausting situation” and he was certain that sometimes LaBrie felt that she was “confronting these monumental burdens all alone.” But he said, “What the defendant was charged with and what she was found guilty of and what she did commit was the crime of attempted murder. As difficult as it is for us to understand, she had the specific intent to kill her young son and intentionally withheld potentially lifesaving medication from him in order to accomplish her goal of murder.”
And he said that it was in society’s interest to protect the vulnerable. “In the last analysis, our society is judged on how we protect the most vulnerable members of that society, the children, the disabled. Jeremy Fraser being a child with moderately severe autism was one of society’s weakest and most beleaguered members. Society has a most significant interest in using the criminal justice system to discourage and prevent substantial injury to such disabled children,” he said.
Interestingly, the state sentencing judge here produced a brief sentencing memorandum, which can be accessed here.
US Sentencing Commission releases final FY10 federal sentencing data and annual report
Though I am hoping to finally get my golf clubs some work this weekend, I know I also will be giving my printer something to do because the US Sentencing Commission has just posted on its website a bunch of new sentencing data and analysis. Specifically, here is the e-mail notice I just got via the USSC:
Commission releases FY2010 Annual Report & FY2010 Sourcebook. In this publication the Commission separately reports, for the first time, data for "Child Pornography" offenses, reflecting the fact that these cases now account for more than 2% of all cases reported to the Commission in fiscal year 2010.
I hope to mine some interesting stories from this new federal sentencing materials in the next few days. Readers/commentors are welcome and encouraged to help the effort, as there is a lot of "there there" in these new USSC documents.
Canadian commits murder in Illinois after researching abolition of death penalty
This crime story from Illinois, headlined "Woman slain in Oak Brook after being tracked by GPS," reports on a Canadian murderer who claims to have been emboldened by Illinois' abolition of the death penalty. Here are the details:
A man from British Columbia, Canada is accused of fatally shooting his former girlfriend in the parking lot of an Oak Brook corporate park after tracking her with a GPS device glued to her car -- and after researching Illinois law on the death penalty, prosecutors said today.
Dmitry Smirnov, 20, of Surrey, turned himself in to police not long after he repeatedly shot Jitka Vesel, 36, of Westmont at the Windsor Office Park at 125 Windsor Drive in the western suburb Wednesday night, authorities said.
During a court hearing, where he was denied bail, prosecutors said Smirnov had moved to the Chicago area in 2008 after meeting Vesel through an online dating service. But Vesel eventually returned to her former boyfriend and Smirnov returned to Canada....
Two weeks ago, he drove to the area from Canada, buying a 40-caliber handgun and ammunition in Seattle on his way to the Chicago area, Berlin said. He arrived in the area April 8 or 9, and tracked down Vesel’s address through the Internet, Berlin said. Smirnov lived in his car for four days after returning to the area, Berlin said.
Smirnov attached a GPS device to her car and tracked her for several days, Berlin said. On Wednesday night, he approached her in the parking lot and began shooting. As he was reloading, she threw coffee on him and fell to the ground. He fired more shots, Berlin said. Berlin said Vesel was shot numerous times in the head and body and died at the scene....
Smirnov later provided a videotaped confession. Berlin said Smirnov went through with his plan after researching to see if Illinois had the death penalty. Just weeks ago, Gov. Pat Quinn signed legislation banning the death penalty in the state.
Missouri prosecutors pushing to abolish state's sentencing commission and guidelines
This telling and disappointing sentencing reform storyout of Missouri provides further proof that prosecutors are generally fans of sentencing guidelines only when they serve prosecutorial interests (as they do in the federal system) and not when they serve judicial or defense interests (as they apparently do in Missouri). The story is headlined "Mo. House targets sentencing guidelines," and here are excerpts:
An obscure state agency has worked for years to devise a statistical model that helps judges decide which criminals to send to prison and which ones to place in community programs. The Missouri Sentencing Advisory Commission trumpets those criminal sentencing guidelines as a way to reserve prison space for the most violent offenders and to use community alternatives when they would best keep an offender from committing new crimes.
But prosecutors have long criticized the guidelines as cookie-cutter justice, and on Thursday, they scored a victory when the Missouri House voted to abolish the commission.
The bill's sponsor, Rep. Stanley Cox, R-Sedalia, said the agency's methodology was flawed and had the effect of promoting an agenda to reduce the prison population. "The end of this commission will, in fact, remove the inaccurate information that is communicated to our sentencing judges in the state of Missouri, whereby liberal judges are given cover to release from prison or reduce the sentence and give lighter sentences to the worst offenders, second offenders and violent offenders," Cox said.
The House passed the bill on a vote of 100-57. It now moves to the Senate, which has until May 13, the Legislature's mandatory adjournment, to decide whether to pass it.
The commission's supporters said that its guidelines weren't perfect but that they should be fixed rather than scrapped. The sentencing commission "does a lot of good and makes mistakes," said Rep. Chris Kelly, D-Columbia, chairman of the subcommittee that oversees the budget of the state's prisons. "It's bad to start throwing out tools" that can help manage the prison population, he said.
At issue is the state's development of "evidence-based" sentencing guidelines, which try to assess a criminal's risk of reoffending as an element in whether to send the person to prison. Legislators established the commission in 1993 to study sentencing practices, then amended the law in 2003 to ask the group to establish a system for sentencing recommendations.
Since 2005, judges have received reports that suggest a sentence, taking into account information such as the offender's age, work history, education and criminal history. The judges have discretion in whether to follow the guidelines or ignore them.
Missouri is among about 20 states that have such commissions. Supporters say sentencing guidelines help achieve consistency and control discrimination. Opponents say they ignore the circumstances of individual crimes and misrepresent data to arrive at "average" sentences.
The push to get rid of the commission — and the guidelines — comes from the Missouri Association of Prosecuting Attorneys. Platte County Prosecuting Attorney Eric Zahnd told a House committee that the guidelines had "no scientific foundation" and had resulted in "outrageously lenient sentencing recommendations."...
Jasper County Prosecuting Attorney Dean Dankelson branded the guidelines as unreliable, pointing to a study by Jeff Milyo, a social sciences professor at the University of Missouri. Milyo argued that the guidelines had the potential to mislead judges about the costs and benefits of alternative sentences. He said the formula ignored the cost to society when a convicted criminal on probation committed another crime.
However, other studies have credited the system with helping keep Missouri's prison population steady at about 30,500 inmates since 2005. In fact, the House's action came a day after a nonprofit group released a national study that singled out Missouri for "dramatic" progress in reducing the number of repeat offenders.
The percentage of Missouri offenders who returned to prison within two years dropped to 36.4 percent for those released in 2009, down from nearly half of those released in 2004, according to the study by the Pew Center on the States. The study gave credit to Missouri for mapping out "a meticulous plan for managing all but the most serious violators in the community" and for extensive training of probation and parole officers in how to use the new "risk assessment" tool.
"The fact is, it's being effective," said Mike Wolff, a Missouri Supreme Court judge who is also the longtime chairman of the state's sentencing commission. "The prosecutors don't like this because they have been traditionally the major if not the only source of information at sentencing time," Wolff said. "Having statistical information available doesn't particularly suit them."
Critically, as this article notes, the Missouri Sentencing Advisory Commission only produces information and advisory guidance; state sentencing judges have complete discretion to ignore the guidelines if and whenever a prosecutor can effectively argue in any individual case that a sentencing recommendation is too lenient. But rather than urge prosecutors to work harder toward achieving sentencing justice in each individual case, the Missouri Association of Prosecuting Attorneys seeks to eliminate a source of sentencing information for judges which is produced without a prosecutorial bias.
ACLU of Ohio releases new report assailing Governor's plan to sell state prisons
As detailed in this local article, which is headlined "ACLU warns against plan to sell state prisons; Report calls projected savings a sham," the Ohio ACLU has a new report concerning Ohio Governor John Kasich state plan to sell some state prisons in order to cut corrections costs. Here is how the article start:
Turning more Ohio prisons over to private operators won't save much money, will undermine sentencing reform and will pose a security risk, the American Civil Liberties Union of Ohio said yesterday. Prisons for Profit, an ACLU report looking at prison privatization, concluded that Gov. John Kasich "is not doing the taxpayers of Ohio any favors" by planning to sell five state prisons.
"Doing so will not only worsen the strain on Ohio's budget, it will also work strongly against the rehabilitation of low-level offenders and jeopardize the safety of ordinary Ohioans," the group concluded.
About 9 percent of nearly 1.6 million incarcerated people in the United States are in private prisons.
The Kasich administration has solicited bids to sell the state-owned, privately operated Lake Erie Correctional Institution in Conneaut and North Coast Correctional Treatment Facility in Grafton; the state-owned and operated North Central Correctional Institution in Marion and Grafton Correctional Institution in Grafton; and a closed youth prison in Marion. Estimates of the sale proceeds range from $50million to $200 million. Administration officials say the deal offers the state short-term gain from the sales revenue and long-term benefit by reduced operating costs.
However, the ACLU said national studies show cost savings from private prisons are minimal. They do make money for operators such as Corrections Corporation of America, the largest such firm in the United States with $1.7 billion in income last year.
The American Civil Liberties Union of Ohio released a new report today titled “Prisons for Profit: A look at private prisons” that explores the negative impacts prison privatization has brought to other states. The report is a compilation of scholarly studies, government reports, and stories from communities that have experienced the negative impact of prisons for profit. Ohio lawmakers are considering a proposal in the state’s biennial budget to sell five prisons and allow private companies to run their operations.
“Privatizing prisons is seen as a quick remedy for states looking to alleviate budget concerns, but they are often more costly to the state. While our prison system is undeniably bloated, we must find long-term solutions to stop the flow of people into the system, not gamble on a system that could bring more problems than it solves,” said ACLU of Ohio Executive Director Christine Link.
April 14, 2011
Another great agenda for the US Sentencing Commission's annual training seminar
I am pleased to see and report that the US Sentencing Commission now has up on its website this full agenda for the USSC's annual training program, which is now only a month away. Here are the basics from the USSC site:
The 2011 Annual National Training Program will be held on May 18-20, 2011, in San Diego, California. There is NO registration fee or tuition for this program and FREE CLE credits are available. Online registration is [at this link].
In a number of prior years, I have been on the panel titled "Guideline Departures and Variances," but this year I have the honor of being on a panel on "Plea Bargaining" which takes place in the afternoon of the last day of the event.
"Denmark, Britain Seek to Halt Use of Drugs on U.S. Death-Row Prisoners"
The title of this post is the headline of this new Wall Street Journal article providing the latest news on the on-going saga surrounding drugs being used by states for lethal injections. Here is how the piece starts:
Heightening tension over U.S. use of certain drugs in capital-punishment executions, Denmark said it would ask U.S. states not to use a sedative made in Denmark for the killings, while Britain said it was banning companies from exporting three additional drugs to the U.S. for use in capital punishment.
All of the drugs were designed to treat legitimate medical conditions, but are used at lethal doses by many states to kill death-row prisoners. The lethal injections have come under growing scrutiny in recent months, as human-rights campaigners, foreign governments and lawyers for death-row inmates have criticized their use — and the often opaque supply chain that delivers them to U.S. prison systems.
"U.S. sex offender claiming refugee status in Saskatchewan"
The title of this post is the headline of this interesting article from north of the border. Here is how the story starts:
For the past year, residents of Pike Lake, Sask., have come to know Denise Harvey as just another neighbour, an ordinary woman in a tightly knit community. But for residents of Vero Beach, Fla., Harvey is a fugitive, a sex offender and — to many — a victim of an unjust justice system.
Harvey, an American, fled to Canada with her husband last year after being sentenced to 30 years in prison for having sex with her son’s 16-year-old friend. But the system caught up with her last week, when she was arrested by RCMP in Pike Lake. She made an appearance before an Immigration and Refugee Board adjudicator Monday and was released on a $5,000 bond.
She is claiming refugee status to avoid being forced back to Florida, arguing the 30-year-sentence she received was too severe. Many others who have been following her case agree. “She didn’t get any justice down here,” said Vero Beach flight trainer George Sigler, one of Harvey’s supporters.
In a town of 18.000 residents, Sigler gathered 2,000 signatures for a petition demanding the Florida governor give Harvey a pardon. Sigler says many people believe Harvey doesn’t deserve a jail sentence that should be reserved for killers. “She’s a nice, soft-spoken woman who I believe made a mistake but that doesn’t mean she should go to jail for 30 years,” said Sigler. “No one in their right mind believes a 16-year-old wasn’t a willing participant.”
Chris Veeman, a Saskatoon immigration lawyer now representing Harvey, said a 30-year jail sentence was too high and provides some merit for her claim that returning to the United States would be cruel and unusual.
She never testified at her trial in Florida and denied any wrongdoing. The age of consent in Florida is 18. In Canada, the age of consent is 16 years old although it is 18 if the two people are in a situation defined as a power dynamic such as teacher and student.
If you have an interest in prisoners' interest in earning interest...
then be sure to check out today's work by the First Circuit in Young v. Wall, No. 10-1862 (1st Cir. April 14, 2011) (available here), which gets started this way:
This appeal requires us to determine whether a prison's unilateral suspension of its internal policy of paying interest on inmate accounts violated the constitutional rights of an affected inmate. The district court thought not. Weighing in on an issue that has split the circuits, we conclude that prison inmates lack a constitutionally protected property right in interest not yet paid. Accordingly, the defendant was at liberty to abrogate the policy prospectively.
"Reverberations of the Victim's 'Voice': Victim Impact Statements and the Cultural Project of Punishment"
The title of this post is the title of this new article by Erin Leigh Sheley, which is now available via SSRN. Here is the abstract:
This article will argue that the current debate on the victim’s participation in the criminal sentencing process ignores how the complexity of a victim narrative effectively conveys the social experience of harm, without which the criminal justice system loses its legitimacy as a penal authority. In other words, we cannot only consider "the victim," "the defendant," and "the state" as three separate entities vying for narrative control over accounts of harm in determining punishment.
Rather, the stories of the victims and defendants already circulate through society outside of the courtroom and the function of "the state" in the trial context is to vindicate the interests of this society. Notions about criminal "harm" enter the culture through the experiences of individuals, as well as through political rhetoric and media representations, and, once there, shape social norms about the assignment of blame. Therefore, if the sentencing process cannot accommodate the stories of actual harm to individual victims it runs the risk of either coming to be viewed as illegitimate to a society guided by these norms or allowing free reign for generic representations of criminal harm produced by political and media actors to take the place of individuated victim accounts in the mind of a fact-finder.
Ohio state legislators make their case for death penalty abolition
As detailed in this local article, which is headlined "2 Democrats seek end to Ohio death penalty; Racial, geographic inequities cited as strikes against it," Ohio's relative success with the machinery of death is not stopping a few legislators from making the case for turning off the machine. Here are the specifics:
Less than 24 hours after Ohio's third execution of the year, two lawmakers argued yesterday that capital punishment should be abolished to save money and remedy racial and geographic disparities about who is executed and who isn't.
Democratic state Reps. Ted Celeste of Grandview Heights and Nickie Antonio of Lakewood, sponsors of House Bill 160, testified before the Ohio House Criminal Justice Committee that a 2007 American Bar Association study found that people who killed a white person in Ohio were nearly four times as likely to get a death sentence as offenders whose victims were black. Further, although Ohio's black population is about 12.5 percent, 55 percent of those on Death Row are black. "One wrongful conviction, and someone is put to death for something they didn't do," Celeste said. "How do you live with that?"
The hearing was held the day after Clarence Carter, 49, of Hamilton County, was lethally injected for murdering Johnny Allen in 1988 when both men were incarcerated in the Hamilton County jail annex. It was the third execution of 2011 and 44th since 1999.
The abolishment proposal quickly ran into a buzz saw of Republican opposition. "I'm really concerned about all this discussion of race," said Rep. Danny Bubp of West Union, a former judge. "It offends me to say that a prosecutor ... is going to do things differently because of race."
Rep. Bill Coley, R-West Chester, likewise rejected the argument that there are flaws and inequities in how the death penalty works in Ohio. "I think sometimes there's evil people, and we need to eradicate them from the face of the Earth," he said.
In the past two years, Ohio has been second only to Texas in the number of executions. The state is on pace for a modern record 10 executions this year after putting eight men to death in 2010.
Geography is also an issue, the bill sponsors said. Although 60 Ohio counties have no one on Death Row, five -- Cuyahoga, Hamilton, Franklin, Lucas and Summit -- account for 56percent of all death sentences.
In terms of cost savings, Celeste and Antonio said a study in Maryland concluded that a life-without-parole sentence costs taxpayers about $1.1 million compared with an average $3 million to pursue a death-penalty case. They estimated, based on Maryland's figures, that Ohio has spent $590 million in pursuing death penalty cases in the past three decades.
Extensive coverage of Pew recidivism report
As discussed here, yesterday the Pew Center on the States released this important new report titled "State of Recidivism: The Revolving Door of America’s Prisons." I am pleased to see today a lot of national and local media coverage of this report, including these pieces:
- From CBS News here, "Breaking the cycle of repeat crime offenders"
- From CNN here, "Report promotes alternatives to prison as national recidivism rate holds steady"
- From the Dayton Daily News here, "Ohio's decline in prison recidivism among steepest in US, study says."
- From the Kansas City Star here, "Study praises efforts in Missouri, Kansas to cut prison recidivism"
- From the Statesman Journal here, "Study hails Oregon's recidivism reduction even as funding cuts threaten it"
April 13, 2011
Barry Bonds convicted of obstruction, jury deadlocked on perjury counts
Looks like Barry Bonds now does need to start worrying about federal sentencing realities, as the early report from the courtroom indicates a split verdict including a conviction on obstruction of justice. Let the 3553(a) analysis for defendant Bonds begin!
UPDATE: This SI.com column by Mike McCann has this to say about Bonds' sentencing situation:
Bonds will likely be sentenced in four to six months. In the months leading up to the sentencing hearing, the U.S. Probation Office will author a "Presentence Investigation Report" which will recommend a sentence. Bonds' lack of criminal record will work in his favor. His refusal to plead guilty, however, will count against him. Sentencing guidelines suggest that he could receive a sentence of 18 to 30 months, though those guidelines are permissive and Judge Illston will reserve the right to impose a sentence outside that range.
During the sentencing hearing, Bonds will have an opportunity to speak and offer an apology -- or to insist on his innocence. Friends and family of Bonds may also speak on his behalf at the sentencing hearing, or they can provide letters asking for leniency.
Bonds may be fortunate that Judge Illston is sentencing him. Judge Illston presided over two other BALCO-related perjury trials in which the defendants -- track coach Trevor Graham and cyclist Tammy Thomas -- were convicted, with Graham convicted on perjury and Thomas convicted on both perjury and obstruction of justice. Illston sentenced each to home confinement (Graham for one-year; Thomas for six months). While Illston could distinguish Bonds as more culpable than Graham and Thomas and more deserving of time in prison, Bonds should take some comfort in knowing Illston's sentencing in the Graham and Thomas cases.
Even if "only sentenced" to home confinement, Bonds would still experience substantial restrictions on his freedom. He would likely have to wear an electronic monitor at all times and could only leave his home with approval by his supervising officer. Home confinement, however, sure beats prison.
If Illston sentences Bonds to prison, she could opt for a sentence similar to that received by track star Marion Jones, who, pursuant to a guilty plea, was sentenced to six months in prison, two years of probation and community service.
Recent related Bonds posts:
- Is Barry Bonds going to have to worry soon about federal sentencing realities?
- Is it clear that Barry Bonds would have a 15-21 months guideline range?
"Seeking Execution Drug, States Cut Legal Corners"
The title of this post is the headline of this effective new piece from the New York Times, which gets started this way:
A shortage of one of the three drugs used in most lethal injections has caused disarray as states pursue a desperate and sometimes furtive search that might run afoul of federal drug laws. At the same time, it has given death-penalty opponents fresh arguments for suing to block executions.
Until recently, states that use the drug, the barbiturate sodium thiopental, got it from a domestic supplier, Hospira Inc. But that company stopped manufacturing the drug in 2009 because of manufacturing problems, and announced earlier this year that it would stop selling the drug altogether. International pressure on suppliers by groups opposed to the death penalty has further restricted access to the drug. States had to find a new source, but importation of sodium thiopental is highly restricted under federal law.
Recently released documents emerging from lawsuits in many states reveal the intense communication among prison systems to help each other obtain sodium thiopental, and what amounts to a legally questionable swap club among prisons to ensure that each has the drug when it is needed for an execution.
In depositions from Arkansas officials, Wendy Kelley, a deputy director of the Department of Correction, said she obtained sodium thiopental from a company in England after hearing about it from corrections officers in Georgia. Her state, she said, at various times had given the drug to Mississippi, Oklahoma and Tennessee free of charge, and obtained the drugs from Texas — traveling to Huntsville herself — and from Tennessee....
When Kentucky went searching for execution drugs earlier this year the state’s corrections commissioner, LaDonna H. Thompson, wrote in a memo that she had contacted departments in Georgia, Nebraska, South Dakota and Tennessee. A Georgia official “referred me to a distributor in Georgia that he thought might have a supply,” and that she had gotten information on “an organization in India,” Kayem Pharmaceuticals. (That company halted shipments to the United States last week under international pressure.)
Bradford A. Berenson, a Washington lawyer who on behalf of death row inmates has urged the Food and Drug Administration and the attorney general, Eric H. Holder Jr., to block the importation of unapproved execution drugs into the United States, said that the states had been “pretty heedless of the legal lines” regarding the purchase and importation of powerful drugs like sodium thiopental. It was as if “because this was death-penalty related, it was somehow exempt from all the normal rules,” Mr. Berenson said. “As a legal matter that was not true.”
States sometimes took remarkable measures to obtain the drugs, the documents suggest. Georgia prison officials were clearly growing antsy last summer as their supply of thiopental neared expiration and a shipment from England lay stalled for weeks in Memphis. Customs agents had detained the package pending inspection by the Food and Drug Administration. By July 6, a corrections official sent a terse e-mail message to a colleague asking, “Any word?”
The response: “We got word but not the ‘good’ word.” The shipment was still held up. “I continue to track the package several times each day.” So officials explored a new tactic: instead of going through the usual channels of ordering the drug through a Georgia health care company and a local pharmacy, might the British company simply send the drug directly to the department?
The owner of Dream Pharma, a wholesaler run out of the back room of a driving academy’s offices in London, replied “I am more than happy to assist.” Matt Alavi, the owner, also warned that a certain carrier is “very stringent with US customs.” A Georgia corrections official approved the deal — “Yes. Make it happen” — with instructions to seek a supply with long expiration dates, and the drugs were soon winging their way to the United States.
This approach might well have broken federal drug laws, said John T. Bentivoglio, a former associate deputy attorney general, in a February letter to Mr. Holder on behalf of a Georgia death row prisoner, Andrew Grant DeYoung. The Drug Enforcement Administration seized Georgia’s drugs last month, and earlier this month Kentucky and Tennessee turned over theirs as well. “I think it’s quite reasonable to expect a state criminal justice agency like departments of corrections to abide by federal law,” Mr. Bentivoglio said in an interview.
"NAACP, right-wing foes get friendly" when it comes to prison costs
The title of this post is drawn from the headline of this new Clarence Page commentary from the Chicago Tribune, which starts this way:
Can prominent right wingers like Newt Gingrich and Grover Norquist get along with the very liberal NAACP? Yes, they can, at least on the high cost of prisons. I'm talking about the recent dance toward common ground taken by some prominent conservatives and the National Association for the Advancement of Colored People.
Paragons of conservatism such as Gingrich, a 2012 Republican presidential hopeful, Norquist, head of Americans for Tax Reform and David A. Keene, former chairman of the American Conservative Union, have endorsed a new NAACP report, "Misplaced Priorities: Over Incarcerate, Under Educate."
Although the trio do not all agree with the NAACP's call for more spending on public education, they found common ground on this much: Americans are spending too much on prisons. Over the last two decades, the report finds, state spending on prisons grew at six times the rate of state spending on higher education. Even during the 2009 recession, public funding for public schools and colleges declined while 33 states increased their spending on prisons.
Of the nation's 2.3 million inmates, the report finds, more than 500,000 were convicted of a nonviolent drug offense. This has resulted largely from various "wars" on drugs over the past 40 years. Drug crackdowns led to more police stops, more arrests and more mandatory minimum sentences that judges have to impose, regardless of individual circumstances.
According to the NAACP's report, more than half of all inmates on the local, state and federal level have mental health or drug problems. Many of their situations could be handled at lower cost outside of prison.
An emerging and impressive roster of prominent conservatives agrees. One new cost-conscious group called Right on Crime includes Norquist, Gingrich, former Attorney General Edwin Meese and former drug czar William Bennett.
As some prisons are overcrowded and others stand empty because states can't afford to operate them, some states are increasingly becoming interested in alternative sentencing like home confinement, probation, ankle bracelets and reduced-sentence incentives for education and drug rehabilitation.
Even in notoriously tough-on-crime Texas, boasted NAACP President Benjamin Jealous during a PBS "NewsHour" report, "You have tea party activists and NAACP activists pushing the same (incarceration reform) bills." That's not bad for two groups that last summer were hurling charges of racism at each other.
"I'm delighted to work with the NAACP on this," Norquist told me, putting a new spin on his famous wish to shrink government "down to the size where we can drown it in the bathtub."
Important new Pew report discusses the "State of Recidivism"
As detailed in this press release, the Pew Center on the States has just produced this important new report titled "State of Recidivism: The Revolving Door of America’s Prisons." Here is an overview of the report from the start of the press release:
Despite massive increases in state spending on prisons, America’s national recidivism rate is stubbornly high, with more than four in 10 offenders returned to state prison within three years of their release, according to a new report by the Pew Center on the States. State of Recidivism: The Revolving Door of America’s Prisons found that while the overall figures are discouraging, several states have made significant progress in reducing recidivism through a variety of evidence-based strategies.
In the first ever state-by-state survey of recidivism rates, state corrections data show that nearly 43 percent of prisoners released in 2004, and 45 percent of those released in 1999 were reincarcerated within three years, either for committing a new crime or violating the terms of their supervised release.
Pew’s findings have significant implications for policy makers struggling with painful budget choices. State corrections spending, driven almost entirely by prison expenditures, has quadrupled over the past two decades, making it the second fastest growing area of state budgets, trailing only Medicaid. Total state spending on corrections today is more than $50 billion a year.
“There’s been an enormous escalation in prison spending but a barely noticeable impact on the national recidivism rate,” said Adam Gelb, director of the Public Safety Performance Project of the Pew Center on the States. “Some states like Texas have begun to shift dollars into strategies for nonviolent offenders that cost less than prison and are more effective at stopping the revolving door. These troubling national figures should accelerate the trend toward policies that will give taxpayers a better public safety return on their massive expenditure on incarceration.”
The Pew survey methodology differs from the last national study of recidivism rates conducted by the U.S. Department of Justice’s Bureau of Justice Statistics (BJS) in 1994, which found 52 percent of released prisoners were back within three years. While differences in survey methods complicate direct comparisons of national recidivism rates over time, a comparison of the states included in both the Pew and BJS studies reveals that recidivism rates have been largely stable. When California, whose size skews the national picture, is excluded from both studies recidivism rates between 1994 and 2007 have consistently remained around 40 percent.
April 12, 2011
The federal criminal justice stories hidden within the budget compromise
The Crime Report has this notable accounting of just how the new budget deal impacts planned federal criminal justice spending:
Federal appropriations for the fiscal year ending Sept. 30 being voted on by Congress this week would cut federal anticrime aid to state and local governments, and the COPS community policing program, by 17 percent. The bill does not cut funds to the Office for Violence against Women, the National Institute of Justice, Bureau of Justice Statistics, Justice for All, and Missing and Exploited Children's programs. The bill was the result of negotiations that avoided a government shutdown last weekend.
The FBI gets $7.8 billion, above last year's figure but $249 million below the Obama administration's request. The U.S. Bureau of Prisons gets $6.3 billion, also above last year's figure but $239 million below the President's budget request. Justice Information-Sharing Technology gets $60.3 million, $119.5 million below the President's request. On paper, $4.9 billion is taken from the Crime Victim's Fund but that money would not have been spent anyway because there is a $705 million cap on annual spending from the fund.
Your federal tax dollars at work.
Ninth Circuit affirms lifetime supervised release term for child porn possessor
The Ninth Circuit has an interesting and notable opinion in a child porn sentencing case today in US v. Apodaca, No. 09-50372 (9th Cir. April 12, 2011) (available here). Here is how the majority opinion starts:
Daniel Apodaca pleaded guilty to one count of possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2). The district court deviated downward from the United States Sentencing Guidelines’ recommendation and sentenced Apodaca to two years imprisonment and lifetime supervised release. Apodaca appeals the supervised release portion of his sentence, arguing that its length was unreasonable and that one of the supervised release conditions violates his constitutional rights. We affirm.
A lengthy concurrence by Judge Fletcher makes this ruling especially blogworthy, and it begins this way:
Because the district court committed no procedural error and sentenced Apodaca to the lifetime term of supervised release recommended by the Guidelines, our precedents require us to affirm Apodaca’s sentence. See, e.g., United States v. Carty, 520 F.3d 984, 993-94 (9th Cir. 2008) (en banc). I therefore concur in the judgment and almost all of the opinion.
I write separately to state my view that the applicable statute, 18 U.S.C. § 3583(k), and Guidelines policy statement, U.S.S.G. § 5D1.2(b)(2), grossly overestimate the risk that defendants like Apodaca, who are convicted only of possessing child pornography downloaded from the Internet, and who have no prior contact child sex abuse convictions, will commit contact sex offenses against children. Compare, e.g., United States v. Williams, No. 10-30084, 2011 WL 768082, at *1 (9th Cir. March 7, 2011) (prior child sexual assault convictions). The routine imposition of lifetime terms of supervised release on Internet-only child pornography offenders departs from Congress’s purpose in enacting § 3583(k) and ignores the best available empirical evidence. This practice results in onerous sentences imposed without individualized attention to the “history and characteristics of the defendant,” 18 U.S.C. § 3553(a)(1), or to the “need for the sentence imposed to protect the public from further crimes of the defendant.” Id. § 3553(a)(2)(C).
Though I find it refreshing to see a circuit judge discuss and explain his view of the application of the 3553(a) factors in a particular case, I find it depressing to see that same judge believe he is obliged to affirm a sentence he views as "depart[ing] from Congress’s purpose in enacting § 3583(k) and ignor[ing] the best available empirical evidence."
Intriguing health-care fraud sentencing and restitution ruling from Sixth Circuit
Savvy federal criminal justice practitioners know that health-care fraud is a hot topic, and this morning brings a hot new ruling on heath-care fraud sentencing issues from the Sixth Circuit. The ruling in US v. Jones, No. 09-3664 (6th Cir. Apr. 12, 2011) (available here), covers an array of sentencing issues and these snippets provide a taste of some of the specifics:
There is no rule that a district court must rely upon statistical analysis in a situation such as this to determine the amount of loss pursuant to section 2B1.1. However, here, the district court relied solely upon a statistical analysis. Without a sound representative sample, that analysis was flawed. As a result, the amount of loss calculation was clearly erroneous. We remand this case so that the correct amount of loss may be established by a preponderance of the evidence....
In the context of mail fraud convictions, we have read [the mandatory restitutiuon] statutory definition of “victim” to allow for restitution for the loss attributable to all the victims of a defendant’s scheme to defraud, even when the defendant was not indicted or convicted of fraud with respect to each victim....
es’s indictment defined his scheme as a broad, over-arching plan “to defraud and to obtain money by means of false and fraudulent pretenses, representations and promises.” The indictment listed as components the more specific acts falling under that plan such as up-coding, billing for services not rendered to Carter and Tubbs, billing under Stewart’s Medicare Provider Number, and others. Therefore, the grand jury defined Jones’s scheme as a general plan to defraud Medicare and Medicaid by committing many different distinct acts. The scheme included not only the acts of which he was convicted, but also the ones of which he was acquitted.
Accordingly, once the district court correctly determines the amount of loss caused by Jones on remand, it may properly order him to pay restitution for both his convicted and acquitted conduct.
Ohio completes another uneventful single-drug execution
Ohio took over the state lead for executions in 2011 by completing another lethal injection this morning. This local article, headlined "Jailhouse killer Clarence Carter executed; Seven more executions scheduled this year," reports the details:
Clarence Carter paid the ultimate price today for going into a rage and killing a fellow inmate during a jailhouse fight more than 22 years ago. Carter, 49, of Hamilton County, was lethally injected at the Southern Ohio Correctional Facility near Lucasville. His time of death was 10:25 a.m.
He apologized to the family of his victim: "Let them know I'm sorry for what I did." But the victim's mother, Helen L. Bonner, said in a statement, "I have no animosity against him and I have forgiven him for taking my child from me...I am glad that justice is finally served, but my forgiveness toward him will never ease the pain of the loss of my son Johnny."
Carter was the third Ohioan to be put to death already this year. There are seven more executions scheduled through November....
On Dec. 28, 1988, while in the Hamilton County Jail Annex awaiting trial on a murder charge as a self-described "hit man" for a group of Cincinnati drug traffickers, Carter got into a fight with fellow inmate, Johnny Allen, 33. The muscular Carter choked, stomped, punched and kicked Allen during the 25-minute fight, beating him to the point that Allen's mother later said he was "so bruised he was unrecognizable." Carter paused long enough during the beating to wipe the blood from his boots, court records say.
Despite the brutality of the murder and his long, violent criminal record - Carter had strong support from several people who said his crime wasn't the "worst of the worst" for which the death penalty was intended. His backers included former Ohio Supreme Court Justice Herbert R. Brown and former state prisons director Terry Collins. But Gov. John Kasich, who rejected Carter's clemency plea, the Ohio Parole Board and courts at all levels saw things differently.
As revealed in this DPIC webpage, no other state has so far conducted more than two executions in 2011. And, though I am not on expert on yearly state-by-state execution statistics, I suspect it has been quite sometime since a state other than Texas was in the lead for the most executions in a single year this late into the "season." Based on this DPIC list of schedule upcoming executions, however, it looks like Texas is on pace to take back its usually leadship position by the summer.
"Beyond Budget-Cut Criminal Justice"
The title of this post is the title of this new article by Professor Mary Fan, which is now available via SSRN. Here is the abstract:
The criminal justice system is undergoing a massive jolt and potential transformation because of a perfect storm of severe budgetary shortfalls and courts awakening to the role of checking penal severity. A wave of reforms is sweeping the states as budgetary woes are leading to measures once virtually impossible or very difficult because of the political risk of looking soft on crime such as expanded early release, conversion of felonies to misdemeanors and scaling down sentences. The social meaning of ameliorating penal harshness is being redefined as a way to curb wasteful and destructive spending rather than being soft on criminals and garnering bipartisan support among conservative and liberal proponents. On the judicial front, the Supreme Court has resuscitated Eighth Amendment proportionality review in the noncapital context and granted appeal to consider the power of a three-judge court to order California to reduce its prison population and consider alternatives to incarceration. This article explores the future of penal law and theory after the turn to budget-cut criminal justice reform and the awakening of courts at the tipping point where the fiscal and human costs of maintaining the highest per capita incarceration rate in the world have become unsustainable.
The article argues that in this important historical moment, we need long-term guides beyond emergency-response for sustainable penal law and policy reform and a successful jolt out of incapacitation stagnation. We have a fomentation of reforms without orienting theory -- short-term reactions to the unbearable rather than sustainable long-term reorientation. The article lays the foundation for thinking beyond emergency-response by theorizing a turn to rehabilitation pragmatism and penal impact analysis in criminal legislation and politics. The article also sounds a caution about the need to ensure that the selective approach towards picking who benefits from rehabilitative pragmatism helps address rather than aggravate inequities in who bears the burdens of penal harshness and who benefits from measures of mercy.
What is the proper sex offender level for former NFL great Lawrence Taylor?
The question in the title of this post is the one facing a New York state court this morning, as explained in this AP piece:
A hearing is scheduled for Tuesday morning to determine whether Taylor is a Level 1, 2 or 3 sex offender. Taylor's not expected to attend. He was arrested in May after meeting a 16-year-old girl in a suburban hotel. He pleaded guilty in January to sexual misconduct and patronizing an underage prostitute. Taylor was sentenced last month to six years of probation.
He also has to register as a sex offender. His attorney has said Taylor should be at Level 1, or low risk. The state Criminal Justice Services Division says that among other differences, photos of Level 1 offenders aren't posted online. Levels 2 and 3 are posted.
UPDATE: As detailed in this AP article, "Lawrence Taylor, who pleaded guilty in January to sexual misconduct and patronizing a 16-year-old prostitute, was declared a low-risk sex offender on Tuesday, meaning there will be no photo of the former New York Giants linebacker on public online sex-offender registries."
Tennessee Supreme Court endorses expert testimony concerning IQ of condemned
As explained in this local article, on Monday the "Tennessee Supreme Court ruled ... that lower courts may look at more than IQ numbers in determining whether a death row inmate is intellectually disabled and thus ineligible for execution." Here is more on the ruling:
In ruling on the case of a Memphis man on death row for more than 30 years, the high court said judges also may consider expert witness opinions to determine whether a test score accurately reflects a person’s functional IQ.
“We find that (state law) does not require that raw scores on I.Q. tests be accepted at their face value and that the courts may consider competent expert testimony showing that a test score does not accurately reflect a person’s functional I.Q. or that the raw I.Q. test score is artificially inflated or deflated,” Justice William Koch Jr. wrote in the court’s unanimous opinion....
Under Tennessee law, mental retardation, now termed intellectual disability, means significantly below-average intellectual functioning with a functional intelligence quotient of 70 or below; deficits in adaptive behavior, and the intellectual disability must have been manifested by age 18.
The Supreme Court, however, said the law does not indicate what types of evidence may be considered and said there is no requirement that IQ scores be accepted at their face value. The court said the lower courts should have considered testimony from two defense psychologists who said Coleman is intellectually disabled.
The full 46-page ruling in Coleman v. Tennessee, No. W2007-02767-SC-R11-PD (Tenn. April 11, 2011), is available at this link.
New poll shows Californians want to lower punishments for drug users
As detailed in this new Los Angeles Times article, which is headlined "Most California voters say possessing small amount of illegal drugs should be misdemeanor, not felony," a new poll shows that most Californians do not want drug users to be subject to serious criminal sanctions. Here are the details:
A strong majority of California voters believe the penalty for possession of a small amount of an illegal drug for personal use should be reduced from a felony to a misdemeanor, according to a poll released Monday by organizations seeking to relax drug laws.
The survey conducted by a professional polling firm found that almost 75% of California voters likely to cast ballots in 2012 believe the crime should be downgraded to a misdemeanor. And 40% went even further, saying they think it should be dropped to an infraction, which is the equivalent of a speeding ticket and carries no prison time.
The poll did not define what is considered a small amount of a drug. Possession of controlled substances, such as cocaine and heroin, is a felony, although charges are sometimes reduced. Marijuana is treated separately, and possession of an ounce or less is an infraction.
A majority of voters also said California sends too many people to prison. And almost 75% agreed that in the midst of a budget crisis, the state should instead use the millions of dollars spent to imprison drug users on schools, healthcare and law enforcement.
"The point here is that this is an overwhelming majority of California voters," said Margaret Dooley-Sammuli, the deputy state director for Southern California for the Drug Policy Alliance, a national organization that supports efforts to reduce drug sentences. "Californians don't want to waste money on incarcerating people for drug possession. They'd rather see that money go for something else."
The poll was released by the Drug Policy Alliance along with the ACLU of Northern California in San Francisco and the Ella Baker Center for Human Rights in Oakland. It was designed and administered by Lake Research Partners, a Democratic polling firm....
Nearly a quarter of the voters surveyed said Californians caught with a small amount of an illegal drug for personal use should not spend any time behind bars, while 27% said they should be locked up for less than three months. Just 8% suggested incarceration for a year or more.
April 11, 2011
Who should be pleased the jury is still out regarding Barry Bonds?
Because I am not a trial lawyer, I am very bad at assessing what to take away from on-going jury deliberations. Thus, I hope some trial lawyers might opine in the comments on the import of this news today from a federal court in California:
The jurors in the Barry Bonds perjury trial deliberated a second day Monday without a verdict after reviewing testimony by a witness who said she saw Bonds’ personal trainer inject him in the navel.
The panel of eight women and four men listened attentively to a reading of the testimony of Kathy Hoskins, who has known Bonds since childhood and shopped for his clothing from 2001 to 2003.
Hoskins testified that she saw Greg Anderson, Bonds’ personal trainer, inject him in the navel in the 2002 season while she was packing Bonds’ clothes for a road trip. The jury heard evidence that human growth hormone is generally injected in the abdomen.
Bonds, 46, has remained at the courthouse with family and friends while the jury has been out.
Recent related Bonds post:
- Is Barry Bonds going to have to worry soon about federal sentencing realities?
- Is it clear that Barry Bonds would have a 15-21 months guideline range?
Monica Conyers makes impossible(?) sentence modification request from prison
This local piece coming from Detroit, headlined " Monica Conyers asks to serve remainder of her sentence at home," provides an interesting example of a high-profile federal prisoner making what seems to be an impossible sentencing request. Here are the details:
Former City Council President Monica Conyers wants out of "Camp Cupcake." The imprisoned wife of U.S. Rep. John Conyers, D-Detroit, has asked a federal judge to modify her 37-month prison sentence for bribery and let her serve time at home, according to a three-page handwritten letter filed today in U.S. District Court in Detroit.
In arguing for reconsideration, Conyers, 46, said a federal judge failed to consider her age, education, work skills, employment record, family ties and "likihood (sic)" she would commit another crime. Plus, her son's babysitter is returning to school soon, Conyers wrote in the letter to U.S. District Judge Avern Cohn.
Her bid is a long shot considering Conyers has filed an appeal, which is pending before the 6th U.S. Circuit Court of Appeals, said Peter Henning, a law professor at Wayne State University and former federal prosecutor. "You can ask," Henning said. "Barring extraordinary circumstances, I doubt he would reconsider."
The request comes seven months after Conyers reported to a federal women's prison camp in Alderson, W.Va. Dubbed "Camp Cupcake," the prison camp offers plenty of perks, including washers, dryers, microwave ovens, hair dryers, curling irons and cosmetology areas where inmate-to-inmate pedicures and manicures are allowed.
In a letter, Conyers said the court could, as an alternative, sentence her to home confinement, community confinement or intermittent confinement to "correct the blatent (sic) sentencing disparities." Conyers is serving the sentence after pleading guilty to accepting at least $6,000 for her deciding vote in the 2007 Synagro Technologies Inc. sludge contract.
After her sentence, Conyers tried to withdraw her guilty plea and appealed. She complained that she pleaded guilty because she was unable to resist pressure from her lawyer, the government and the news media, according to an appeal brief....
In a letter to The Detroit News this year, Conyers complained that Camp Cupcake doesn't live up to its cushy nickname, provides no second servings of food to inmates and has few education opportunities.
Those interested in seeing Monica Conyers' letter to the judge can check it out at this link. And, as the title to my post is meant to suggest, I am pretty sure Judge Avern Cohn lacks any legal authority to give Conyers' the relief she seeks even if he were moved by her request.
"Drug Policy in Context: Rhetoric and Practice in the United States and the United Kingdom"
The title of this post is the title of this notable new paper from Professot Richard Boldt now available via SSRN. Here is the abstract:
The history of narcotics use and drug control in the U.S. before passage of the Harrison Act in 1914 is similar in important respects to that in the U.K. during the same period. Although the two countries’ paths diverged significantly over the ensuing decades, there has been a convergence of sorts in recent years. In the United States, the trend lines have moved from an active “war on drugs” in which criminal enforcement and punishment have been the primary rhetorical and practical instruments of policy to an evolving approach, at least at the federal level, characterized by a somewhat more pragmatic tone and a more balanced set of interventions that mix enforcement, treatment and prevention. From the British side, the movement has been in the opposite direction, from a longstanding public health approach to an intensifying focus on criminal offending as the primary social risk posed by the misuse of drugs. Thus, just as the criminal justice system long has been the principle front in the U.S. assault on drug abuse, the shift in British drug policy has now made the criminal system in the U.K. a central focus in its efforts to combat the problem of drugs and drug addiction.
This pattern of convergence is likely to be incomplete. Even though actors in each country have been aware of developments in the other (and have even borrowed policy prescriptions from time to time), one critical difference in their parallel histories is likely to be determinative. The American move toward pragmatism, if it is to occur, must be executed against the inertial force generated by policy commitments and social practices of more than seventy-five years standing in which the most dominant feature has been an intense moral disapproval of drugs and those who use them. The British approach to drug policy, on the other hand, does not have to contend with this moral anchor, and therefore is likely to remain more pragmatic and therapeutic in orientation into the foreseeable future.
Rough day for defendants pressing sentencing appeals in Eighth Circuit
A set of opinions released today provide still more proof that, despite repeated SCOTUS post-Booker sentencing reversals, the Eighth Circuit continues to believe precious few defense sentencing arguments are convincing. My friends cut and paste help me provide these unofficial summaries of three notable defense losses from this official circuit webpage:
United States v. Rocio Ortiz, No. 10-1101 (8th Cir. Apr. 11, 2011) (available here) [PUBLISHED] [Riley, Author, with Bye and Melloy, Circuit Judges]: No error in allowing representatives of retailers victimized by defendant's shoplifting scheme to testify at sentencing regarding national losses; district court did not err in departing upward from criminal history category II to category VI or in adding a further offense level for criminal history; where court indicated it would impose the same sentence and for the same reasons, any procedural error in not discussing intermediate criminal history categories was harmless; district court adequately considered the 3553(a) factors and possessed a keen awareness of its authority to sentence outside the guidelines.
United States v. David Mills Becker, No. 10-2263 (8th Cir. Apr. 11, 2011) (available here) [PUBLISHED] [Kyle, Author, with Riley, Chief Judge, and Wollman, Circuit Judge]: District court's comments regarding his prior service on the North Dakota Board of Parole did not create a Rule 32 violation as the court's comments about what might happen in the state system were merely an academic discussion and did not affect its sentencing decision, which was based on the severity and nature of defendant's offense; district court did not err making defendant's federal sentence consecutive to his state time; Guideline Sec. 5G3.1(b) did not apply to defendant's sentence.
United States v. Victor Jones, No. 10-2667 (8th Cir. Apr. 11, 2011) (available here) [PUBLISHED] [Kyle, Author, with Riley, Chief Judge, and Wollman, Circuit Judge]: Defendant's argument that his 188-month was unreasonable is foreclosed by his plea agreement which agreed to a sentence within a 188 to 235 month range; in any event, the sentence was not substantively unreasonable.
These summaries lead me to believe the Oritz case my be the most interesting and consequential of this bunch, but perhaps readers will help me see if there is anything especially important jurisprudentially within this troika of sentencing rulings.
April 10, 2011
"Right-winger + hard time = compassion?"
The title of this post is the headline of this notable piece by Justin Elliot now up at Salon.com, which also has the cool graphic reprinted here and carries this subheading: "Some of the most eloquent advocates for prison reform are conservatives who find themselves behind bars." Here is how the piece gets started:
Last week, disgraced former congressman Duke Cunningham wrote a letter to several media outlets from the federal penitentiary where he has resided since 2006. In it, Cunningham, a conservative Republican who pleaded guilty in a public corruption case in 2005, waxed eloquent about an unlikely topic: prison reform.
"The United States has more more men & women in prison than any other nation including Russia and China," he wrote. "The largest growing number of prisoners, women -- 1-34 Americans are either on probation or in prison. The 95% conviction rate reached by threats of long sentences, intimidation, lies and prosecutorial abuse has got to be reckoned with now, not later." Cunningham also promised he would dedicate his life to prison reform.
We've seen transformations like this before. Cunningham is the latest in a string of conservative political figures to see the light on prison reform following a stint behind bars.
Right-wing media mogul Conrad Black, for example, did two years' hard time after being convicted in a 2007 fraud case. Following his release in 2010, Black has written passionately about prison reform.
While incarcerated, he learned "of the realities of street level American race relations; of the pathology of incorrigible criminals; and of the wasted opportunities for the reintegration of many of these people into society. I saw at close range the failure of the U.S. War on Drugs, with absurd sentences, (including 20 years for marijuana offences, although 42% of Americans have used marijuana and it is the greatest cash crop in California.)."
And, of course, Nixon aide Charles Colson devoted his life to criminal justice reform -- and spreading Christianity among prisoners -- after serving seven months in 1974 for obstruction of justice in a Watergate-related case. Colson's Justice Fellowship organization lobbies for better conditions in prisons and reform of sentencing and the criminal code. The head of Justice Fellowship is Pat Nolan, a former conservative law-and-order Republican in the California assembly who devoted himself to prison reform after serving 29 months for corruption in the 1990s.
The piece concludes with a Q&A intereview in which I speculate on some of the reasons why some conservatives start talking about sentencing and prison reform after they have seen the operation of the criminal justice system first hand.
Understanding the science and debates over lethal injection protocols
The New York Times has this helpful new piece in its "Week in Review" section about the controversies surrounding lethal injection drugs. The piece quotes from various medical authorities and is headlined "What’s in a Lethal Injection ‘Cocktail’?". Here are excerpts:
The latest controversy over the always controversial subject of capital punishment: the drugs used to execute people on death row....
[Recent] challenges have been prompted by a shortage of one of the drugs, sodium thiopental, an anesthetic. The American manufacturer of sodium thiopental, Hospira, recently announced that it would no longer produce the drug, and manufacturers in Europe do not want to supply the drug if it will be used in executions. Some executions have been postponed while states try to sort out the drug situation.
In Texas, which carries out more executions than any other state, the controversy is focused on the proposed switch from sodium thiopental to pentobarbital in a three-drug cocktail.
What is the difference? The two drugs come from the same family: barbiturates, drugs that depress the central nervous system. So, in general, said Dr. John Dombrowski, director of the Washington Pain Center and a board member of the American Society of Anesthesiologists, “it’s like if you ask me what’s the difference between Johnnie Walker Blue, Black and Red — they’re all scotch.”
But sodium thiopental has been commonly used as an anesthetic in hospitals. Pentobarbital has a few medical uses in humans, but is often used by veterinarians to anesthetize or euthanize animals. It has also been used in physician-assisted suicide in Oregon and in Europe....
Sodium thiopental is used in hospitals because it “has a relatively fast onset and it doesn’t last long,” Dr. [Mark A.] Warner [president of the American Society of Anesthesiologists] said. “You want a patient to go sleep and wake up pretty quickly.”
Pentobarbital is a long-acting drug.... used in hospitals in certain circumstances, like inducing a coma in brain-damaged patients because “that allows the brain to use more energy and oxygen to repair itself,” Dr. Warner said. He said it can also be used to stop seizures in patients for whom other drugs are ineffective.
Opponents of the death penalty object to either drug. Some say thiopental can wear off too quickly, allowing inmates to feel pain. Others object to using pentobarbital, because it is so infrequently used in humans.
In the three-step cocktail common in executions, a barbiturate is given with pancuronium bromide, a paralyzing drug, and potassium chloride, which induces cardiac arrest. Dr. [Scott] Segal said all three drugs can have lethal effects. “I’m not sure anyone knows which drug actually kills someone,” he said.
In fact, one can do the job. Ohio has used both barbiturates by themselves in executions.
Baltimore gun offender registry declared unconstitutional as operated
This local article, headlined "Judge says Baltimore gun registry unconstitutional: Decision chides "vague, overly broad" regulations," reports on an interesting and important ruling from Maryland's state courts late last week. Here are the details:
Baltimore's gun offender registry is unconstitutional, a Circuit Court judge ruled Friday, calling into question one of the city's signature programs against gun violence. Judge Alfred Nance said the Police Department had "failed or refused to comply" with establishing clear regulations for the registry, which required people convicted of gun crimes to provide addresses and other information with the city every six months for a period of three years.
The city judge also called the program, created in 2007, "unconstitutionally vague and overly broad." Among the data registrants must provide, according to a list, is "any other information required by the rules and regulations adopted by the Police Commissioner," language that Nance said appeared to give police "limitless discretion." The city said it was considering whether to appeal.
Though Nance's opinion is not binding on other judges, they might follow his lead, said University of Maryland law professor Douglas Colbert. "It will have an effect over anyone appearing before Judge Nance, and it could have an influential effect on his colleagues," said Colbert. "It's a ruling the state would likely not want to remain unchallenged."
Sheryl Goldstein, director of the mayor's Office on Criminal Justice, said city officials are pleased that the opinion reaffirmed that the program did not conflict with state laws, a complaint that had been raised when the program was being created. "This is one judge's opinion, and one of the first on the issue," she said. "We're considering all of our legal options, and in the meantime, we're going to keep the gun offender registry up and running."
The Office of the Public Defender brought the challenge in the case of Adrian Phillips, who was convicted of armed robbery and handgun offenses in 2008. He was charged in February with failing to register as a gun offender as a result of that sentence....
The law was modeled after a registry in New York City, and fueled by statistics showing that half of those charged with homicides in Baltimore had previous gun convictions. City officials say the program helps police keep close tabs on repeat offenders and other "bad guys with guns," as Police Commissioner Frederick H. Bealefeld III often calls them....
"The purpose of crafting the gun offender registry was to create a method of oversight and knowledge of gun offenders, with the idea of deterring future gun crime," Goldstein said. "Folks who are registered have a low rate of recidivism, period, and very low with respect to gun crime."
The law requires those convicted of shootings or other violations of gun laws to provide personal information to the police for a citywide database. Offenders must provide names, aliases, addresses and information about their convictions twice a year. Police also visit homes to verify addresses and connect offenders with social services.
Nance said the city could legally create a gun offender registry, but the Police Department had failed to give "reasonable guidance and fair notice to the public" on the specifics of the law. "The rules and regulations are not simply unclear, they are unknown and unreviewable outside of the walls of the Police Department," he wrote.
The ruling here apparently upholds the basic concept of a local gun offender registry, a concept which itself seems to have perhaps more empirical support as a contributor to public safety than sex offender registries. As a result, I hope that the folks in Baltimore (and perhaps in other communities with serious gun violence problems) will continue to refine this form of a registry in order to make its operation constitutionally sound.