April 23, 2011
Noting the links between DP abolition and LWOP sentences
This recent commentary from The Guardian provides an effective and troublesome reminder of the too frequent link internationally between death penalty abolition and expansion of the sentence of life without parole. The piece is headlined "Falling execution rates don't always mean a victory for human rights; In countries where capital punishment has been banned the alternative can be inhumane life imprisonment without parole." Here are excerpts:
Amnesty International's recently published death penalty statistics hailed a "decade of progress". For opponents of capital punishment, this annual tradition of significant documented falls in executions is a victory -- of sorts. As Amnesty reported, of the 67 countries that handed down death sentences in 2010, only 23 actually carried out executions. These statistics, however, do not tell us this: what happened to the prisoners who escaped state execution in the remaining 44?
Very little attention is given to the sanctions that should replace capital punishment, or to what happens after it is abolished. Consider Uganda. A landmark legal challenge in 2009 abolished mandatory death sentences for certain crimes. But the Ugandan criminal justice system was unprepared for the change. Under pressure from politicians facing a backlash from a public highly supportive of capital punishment, and in the absence of any new sentencing guidelines, judges handed down draconian prison sentences instead -- including life without parole, previously nonexistent in Uganda.
The attraction of life without parole, now the commonest alternative to capital punishment, is understandable. It allows governments to claim they are protecting the public by permanently removing serious offenders from society. It appeases public outcry at the early release of dangerous convicts on parole. And it means abolitionists can show they are not soft on crime, while at the same time eliminating the danger of executing innocent people. But life without parole trades one severe punishment for another: execution is swapped for a protracted, hopeless death in unspeakable conditions. HIV rates in Ugandan prisons are more than double the rest of the population. In Malawi, where no one has been executed since 1992, prisons are vastly overcrowded and rife with infectious disease; prisoners are denied contact with families, and sexual and psychological abuse by inmates and guards is routine.
Across the world today, those lucky souls who escape death by hanging, beheading, electrocution, lethal injection, shooting or stoning live out their lives in conditions tantamount to a breach of international prohibitions of cruel and inhuman punishment, as an emerging jurisprudence recognises. Whole life imprisonment can also be a form of legal disappearance. In 2009, after Kenya's last elections, some 4,000 prisoners had their sentences commuted to life to without parole by President Kibaki. Some of those prisoners -- living in some of the world's most crowded and worst funded prisons -- have not been heard from since, by their lawyers or families. These are hardly arguments for retaining capital punishment. But if a sentence of 75 years, with hard labour and without review or hope of release -- the current alternative in Trinidad and Tobago -- is considered a "victory", it is surely time to rethink our indices of success....
Few headlines focus on the aftermath [of a commuted death sentence], and few international advocates jet in to ensure that those released from death row are not tortured in prison, contract tuberculosis or HIV, lose contact with their families or die in appalling squalor. Indeed, litigation can often cause unintended harm. In the United States, as Peter Hodgkinson of the Centre for Capital Punishment Studies (one of few organisations raising this issue) has pointed out, a government backlash against death-penalty litigation has directly or indirectly led to an increase in the number of capital crimes, and to severe restrictions in the appeal process.
Life without parole cannot be the alternative. Both the UN and Council of Europe guidelines on managing long-term prisoners recognise that very small numbers of convicted prisoners may have to stay in prison for their natural lives -- but only with regular reviews of their risk of reoffending....
The abolitionist campaign's goal should be a humane, proportionate and human rights-compliant response to perpetrators and victims of serious crime. It might require global guidance to standardise the huge, and often grossly disproportionate range of sentencing decisions. It will certainly require building and sustaining capacity among lawyers to challenge human rights abuses in prison, and training police and prison staff to cope in effective and positive ways with serious offenders. It will also mean recognising that the high proportion of mentally ill prisoners on death row might be better dealt with in clinical rather than punitive settings....
A falling execution rate is not the only measure of rising humanity. We cannot simply declare victory when capital punishment is removed from the statute book, or when fewer prisoners are executed. Moving to a humane penal response to serious crime, in societies in which the death penalty has flourished for centuries, cannot be done at a stroke. The entire abolitionist project is undermined if wholesale infrastructural change is not addressed. Too often, current alternatives to the death penalty raise the uncomfortable question: "what would you rather?" Those that do not are not easy -- but silence does no justice to our cause.
"Federal Judiciary Divided Over Changing Criminal Discovery Rule"
The title of this post is the headline of this notable piece up at The BLT. Here is how it begins:
Federal judges are divided over the necessity to change the rules of criminal procedure to put a greater emphasis and burden on prosecutors to turn over favorable information to defense lawyers, a Federal Judicial Center report concluded.
The center, the research arm of the judiciary, surveyed all U.S. Attorney’s Offices, thousands of defense lawyers and federal and magistrate judges to assess the merits of a proposed amendment to Rule 16, which governs discovery in criminal cases. A copy of the survey results is here. (Click here for an earlier report on the survey’s findings.)
The FJC said 43% of about 1,500 judges completed the online survey, which was conducted last year. Eighty-five of the 93 U.S. Attorney’s Offices participated in the review. More than 5,000 private criminal defense lawyers and federal public defenders provided their assessment.
The judiciary was evenly split on the need for amending the rule. But judges in districts with local rules or standing orders that require broader disclosure of information than what’s required in Rule 16 indicated greater support for a rule change than other judges in the judiciary. The Justice Department opposed a rule change. More than 90% of the defense lawyers who responded favored a change.
The two most frequent disclosure violations among prosecutors, judges reported, were the failure to provide favorable information on time and the scope of the disclosure to the defense.
Judges also reported they rarely hold an attorney in contempt and infrequently report a prosecutor’s conduct to the DOJ’s Office of Professional Responsibility, bar counsel or other disciplinary body.
Any broader insights or lessons from the latest Lindsay Lohan sentencing developments?
This ABC News story, headlined "Lindsay Lohan Released From Jail, Appealing Ruling," provides the latest developments in the highest profile (and lowest brow?) celebrity sentencing. Here are the basics:
Lindsay Lohan slipped out of jail late Friday night after being released on $75,000 bail while she appeals a judge's 120-day jail sentence for violating her probation by taking a designer necklace.
In addition to jail, Los Angeles Superior Court Judge Stephanie Sautner ordered Lohan to serve more than 400 hours of community service, which would include 300 hours at a women's center. "Perhaps then she might see how truly needy women who have fallen on truly hard times have to live," said Sautner.
Lohan's attorney, Shawn Holley, filed a notice of appeal before court closed, which allowed for the actress' release at 9:21 p.m. Lohan previously has been jailed three times.
Earlier on Friday, Sautner reduced Lohan's grand theft case regarding the necklace she allegedly stole on Jan. 22 to a misdemeanor. Lohan pleaded not guilty to that misdemeanor charge. Sautner set a trial date on the misdemeanor charge for June 3 and a pretrail date for May 11. The misdemeanor has a potential penalty of a year in jail, whereas the original felony charge had a potential penalty of three years in jail. In making her ruling to reduce the charges, Sautner said, "I'm going to give her an opportunity."
The decision came after Deputy District Attorney Danette Meyers concluded her case against Lohan after calling four witnesses, including the owner of Kamofie and Co., the store from which Lohan allegedly stole the necklace, an employee of the store, and two police officers who handled Lohan's case.
Holley had asked Sautner to dismiss the charge altogether, saying "This is not a stealth, crafty crime." As Holley spoke, Lohan started tearing up, and a bailiff gave her tissues....
The 24-year-old actress, who turned down an earlier plea deal regarding the necklace case, had sought to get the Good Friday hearing pushed back, citing religious beliefs. The judge apparently was not persuaded by Lohan's attempt to put off the hearing.
Lohan has denied any wrongdoing. She has maintained that the store let her borrow the necklace and her assistant returned it to police. She was arraigned in February on one felony grand theft charge. Lohan has been to jail three times in the past three years for DUI, drug possession and probation violations.
April 22, 2011
"States quickly switching execution drug"
The title of this post is the headline of this new AP article about changes in lethal injection protocols. Here are the particulars:
Nearly two-thirds of the 16 states with active death chambers are switching to an alternative sedative for execution — even as the drug's manufacturer argues against its use in capital punishment and some European countries push export bans for such drugs.
Ten states have now switched to pentobarbital or are considering a switch as part of their three-drug methods, according to a survey of all death penalty states by the Associated Press. Among those joining the states that previously switched are Alabama, Louisiana and Florida. South Carolina also is considering using the drug as it prepares for an execution next month.
At issue is a shortage of sodium thiopental, a sedative that states used for more than three decades until its only U.S. manufacturer stopped making it in 2009 and then dropped plans to resume production earlier this year. The shortage forced several states to scramble to find new supplies and executions were temporarily delayed in Arizona, California, Georgia and Oklahoma. States swapped supplies of sodium thiopental or looked overseas, to England, India and even Pakistan....
Ohio spent $218 for 5 grams of sodium thiopental in February, but spent $2,200 for 5 grams of pentobarbital for a March execution. Prisons spokesman Carlo LoParo said the state had no alternative.
As states scrambled for fresh supplies, several turned to England and obtained doses of sodium thiopental not approved for medical use in this country by the FDA. But that source dried up after the British government banned the drug's export for use in executions and the U.S. Drug Enforcement Administration began seizing supplies of the drug from Georgia and other states over questions of whether the states broke the law to get it....
Some states without recent executions or any scheduled in the near future are also switching or considering a switch to pentobarbital in case the need arises, including Delaware, Oregon and Idaho.
Only two states, Ohio and Oklahoma, have used pentobarbital in executions. Oklahoma uses it along with drugs that paralyze inmates, then stops their hearts. Ohio uses one single dose of pentobarbital.
Third Circuit affirms child porn offender's sentence and restrictions over various objections
Though I do not believe it breaks much new ground, today's Third Circuit opinion in US v. Maurer, No. 10-304 (3d Cir. Apr. 22, 2011) (available here), covers lots of ground that arises in a number of child porn cases. Here is how the opinion starts:
Appellant Derl H. Maurer (“Maurer”) pleaded guilty to a single count information charging him with possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The District Court imposed a sentence of sixty months of imprisonment and a five-year term of supervised release, which included special conditions restricting internet access and association with minors. On appeal, Maurer challenges the procedural reasonableness of his sentence as well as the special conditions of his supervised release. For the reasons that follow, we will affirm.
"Is sending juveniles to prison for life constitutional? Judge hears arguments"
The title of this post is the headline of this new piece in the Detroit Free Press, which gets started this way:
A federal judge could decide within weeks whether Michigan's practice of sending juveniles to life in prison without parole is unconstitutional. Judge John Corbett O'Meara heard arguments this afternoon that the state's long practice of sentencing kids as young as 14 to life in prison should be considered "cruel and unusual punishment."
"The issue is a child is a child and they're different," Ann Arbor attorney Deborah La Belle argued on behalf of the ACLU and nine michigan prisoners currently serving life sentences on murder convictions they received as juveniles. One, Henry Hill, was 16, when he accompanied a group of friends to a park, where a killing took place. Hill was convicted as an accomplice and has been in prison for 28 years.
Unlike most states, Michigan has no minimum age limit when it comes to charging children as adults. Currently, there are 351 prisoners serving life sentences for murders they committed as juveniles, some as young as 14. Many were "aiders and abetters," who served as look outs on robberies or drug deals, where a murder took place.
Attorney Margaret Nelson, arguing on behalf of the state of Michigan, which supports life sentences for juveniles, said that other states had rejected the notion that such sentences violate the Eighth Amendment prohibiting cruel and unusual punishment.
The issue of what to do with young violent criminals is part of an ongoing national debate. The United States Supreme Court ruled in 2010 that sending children to prison for non-lethal crims was unconstituitonal, but stopped short of including those convicted of first degree or felony murder. In recent weeks, the high court has signaled it may take up that issue as well.
In addition, the New York Times has this longer article about post-Graham juve LWOP issues and litigation, which is headlined "Juvenile Killers in Jail for Life Seek a Reprieve." Here are excerpts from this piece (which also included the very informative graphic reprinted here):
Almost a year ago, the Supreme Court ruled that sentencing juvenile offenders to life without the possibility of parole violated the Eighth Amendment’s ban on cruel and unusual punishment — but only for crimes that did not involve killings. The decision affected around 130 prisoners convicted of crimes like rape, armed robbery and kidnapping.
Now the inevitable follow-up cases have started to arrive at the Supreme Court. Last month, lawyers for two other prisoners who were 14 when they were involved in murders filed the first petitions urging the justices to extend last’s year’s decision, Graham v. Florida, to all 13- and 14-year-old offenders.
The Supreme Court has been methodically whittling away at severe sentences. It has banned the death penalty for juvenile offenders, the mentally disabled and those convicted of crimes other than murder. The Graham decision for the first time excluded a class of offenders from a punishment other than death.
This progression suggests it should not be long until the justices decide to address the question posed in the petitions. An extension of the Graham decision to all juvenile offenders would affect about 2,500 prisoners....
The effort to extend the Graham decision has so far been unsuccessful in the lower courts. According to a study to be published in The New York University Review of Law and Social Change by Scott Hechinger, a fellow at the Partnership for Children’s Rights, 10 courts have decided not to apply Graham to cases involving killings committed by the defendants, and seven others have said the same thing where the defendants were accomplices to murders. Courts have reached differing results, though, where the offense was attempted murder.
All of this suggests that the question left open in Graham may only be answered by the Supreme Court. In March, lawyers with the Equal Justice Initiative asked the justices to hear the two cases raising the question.
April 21, 2011
Intermediate Louisiana court declares 60-year sentence for post-Katrina scammer excessive
A helpful reader alerted me to this interesting story from Louisiana reporting on an interesting state appellate ruling. The piece is headlined "60-year prison sentence thrown out in post-Katrina home contracting scam," and here are the basics:
A state appeals court panel on Wednesday scrapped the 60-year prison sentence that an Orleans Parish judge leveled last year on a former Alabama state legislator convicted in a home contracting scam that fleeced six families out of $247,000.
John Wesley Colvin, 64, pleaded guilty to six counts of theft for bilking the families, who were desperate to return to New Orleans two years after Hurricane Katrina. The victims testified that Colvin promised them affordable modular homes, took between $40,000 and $65,000 from each -- much of it Road Home grant money -- then failed to deliver.
Unswayed by pleas from Colvin, his friends and family -- and a letter from Alabama Lt. Gov. Jim Folsom -- citing Colvin's charity toward the poor, his remorse and his bad business sense, Orleans Parish Criminal Court Judge Darryl Derbigny on Feb. 12, 2010, handed down consecutive 10-year sentences to Colvin for each of the six counts and ordered him to pay restitution....
But on Wednesday, the panel of the 4th Circuit Court of Appeal called the punishment unconstitutionally excessive and sent the case back to Derbigny for a lesser sentence.... In his 15-page opinion, Judge Roland L. Belsome cited those who spoke on Colvin's behalf, his attempt to return $5,000 to one victim before his arrest and his lack of a criminal record....
Yet the panel also said it didn't think a 10-year sentence for Colvin is enough, "considering the extreme economic and emotional harm suffered by the victims in this case." Colvin, who briefly served as an Alabama state representative in 1989, has remained in state prison since May 2009, said his attorney, Craig Mordock, who hailed the appeals court ruling. "It shows that for people who take responsibility for their actions, they're not going to be subject to excessive sentences, which this clearly was," Mordock said.
The opinion in Louisiana v. Colvin can be downloaded below, and here is the key concluding substantive paragraph:
Although mindful of the trial court’s discretion with regard to sentencing, we find that the sentences imposed are excessive under these particular facts and circumstances. Considering the mitigating evidence presented to the trial court, the age of Defendant, Defendant’s attempt to mitigate the loss to one of the victims before his arrest, and the fact that Defendant is non-violent and has no prior criminal record, we find that the trial court abused its discretion in ordering the six ten-year sentences to be served consecutively. See State v. Cox, supra. However, we do not find that a ten-year sentence is sufficient either, considering the extreme economic and emotional harm suffered by the victims in this case. Accordingly, the matter is remanded to the trial court for resentencing.
"Extracting Compassion from Confusion: Sentencing Noncitizens After United States v. Booker"
The title of this post is the title of this new student note by Francesca Brody, which is now available via SSRN. Here is the abstract:
A noncitizen facing a federal judge for sentencing confronts a demonstrably different future than an otherwise identical citizen. Deportation, immigration detention, harsher prison conditions, and a longer actual sentence may all await the noncitizen federal inmate. The U.S. Courts of Appeals have disagreed as to whether a sentencing judge can take those consequences into consideration in crafting a sentence under the U.S. Sentencing Guidelines.
This Note argues that the circuit split results from circuit courts’ varying appellate scrutiny of sentencing decisions after United States v. Booker. To resolve the split, this Note encourages the Sentencing Commission to adopt an amendment to the Guidelines, thereby promoting uniformity among sentencing courts. In the alternative, this Note argues that it is proper for sentencing courts to consider alienage under 18 U.S.C. § 3553.
Fifth Circuit panel questions another panel's recent ruling on child porn restitution sentencing
Just a day after the DC Circuit issued a very important child porn restitution opinion with In re: Amy, the Victim in the Misty Child Pornography Series, No. 11-3008 (DC Cir. April 19, 2011) (discussed here and here), the Fifth Circuit returned to the topic through a notable ruling in US v. Wright, No. 09-31215 (5th Cir. April 20, 2011)(available here). Excerpts below from the last two paragraphs of the per curiam opinion and the first and last paragraph of a special concurring opinion joined by all the judges on the Wright panel highlight why this latest ruling is notable.
From the per curiam:
In sum, although we agree with the government that the district court has wide discretion in fashioning restitution orders, this discretion is not unlimited and must be reviewed for abuse. Moreover, if there is “[a]ny dispute as to the proper amount or type of restitution” the court is obligated to resolve that dispute “by the preponderance of the evidence.” 18 U.S.C. § 3664(e). We conclude, therefore, that the district court’s failure to give a reasoned analysis of how it arrived at its award in a manner that allows for effective appellate review requires that we vacate the order and remand for reconsideration.
On remand, the district court has two basic options under §§ 2259 and 3364, as well as the In re Amy decision. The district court may attempt to craft a joint and several restitution order that conforms to the generally recognized requirements of joint and several liability, as held by In re Amy. Alternatively, the district court may attempt to determine the “fraction” of Amy’s losses “attributable” to Wright, consistent with the In re Amy decision....
From the special concurrence authored by Judge Davis:
I write separately to express my disagreement with the recent holding by the In re Amy panel that § 2259 does not limit the victim’s recoverable losses to those proximately caused by the defendant’s offense and to urge the court to grant en banc review of that decision....
For all of the foregoing reasons, this court should follow every other circuit court and virtually every district court considering this issue in holding that § 2259 limits recoverable losses to those proximately caused by the defendant’s offense of conviction. Thus, I recommend that this case be consolidated with In re Amy and reheard en banc.
Should problems with lethal injection prompt return of other execution methods?
The question in the title of this post is prompted by this international news piece, headlined "Call for firing squads as UK bans lethal-drug exports." (Hat tip: Crime & Consequences.) Here are excerpts:
British efforts to halt the sale of lethal-injection drugs to the US have been seized on by American death-penalty supporters. They are calling for the method to be scrapped in favour of firing squads or a return to the gas chamber.
Within hours of a British export ban on sodium thiopental and other drugs coming into force on Friday, a leading death-penalty advocate in California said that a modernised gas chamber was "the obvious solution" to a backlog of more than 700 death-row inmates whose fate depended on state approval of a new method of execution.
In New York, a prominent law professor who favours execution as "retributive" justice called for a return to the widespread use of firing squads as a form of capital punishment that "doesn't pretend to be something else"....
Kent Scheidegger, of the Criminal Justice Legal Foundation, [recommends] a modernised gas chamber in which cyanide gas is replaced with a neutral gas such as helium. The effect on a prisoner would be similar to that of hypoxia on a pilot suffering oxygen deprivation at high altitude, Mr Scheidegger said. "It feels like nothing. You just feel kind of woozy," he added. "For anyone thinking longer-term about alternatives to lethal injection, this is the obvious solution."...
New York Law School professor Robert Blecker said lethal injection should be abandoned -- not for practical reasons, but because it sanitised a process that should hurt. "It conflates medicine with punishment," he said. "How we kill those we detest should in no way resemble how we kill those we love. "Firing squad is my preferred method," he said.
Effective commentary concerning political discussion of pot policy and the drug war
In the wake of President Obama's Facebook forum yesterday, I noticed this notable prior commentary at The Huffington Post by Scott Morgan. The piece is headlined "Obama's Facebook Forum Fails to Silence Marijuana Legalization Advocates," and here are excerpts:
Despite being initially chastised as "Internet trolls," supporters of marijuana reform [have] repeatedly demonstrated their momentum in an open exercise of online democracy.
As startling as it was to see marijuana legalization taking a front row seat in mainstream politics, the outcome couldn't be ignored without defeating the purpose of the exercise entirely. Obama was forced to respond, and after an unfortunate first attempt to brush the issue aside, he eventually conceded just months ago that legalization is "an entirely legitimate topic of debate," but rejected it without explanation nevertheless.
It had become clear that as long as Obama's forums allowed the public to vote on topics for the president to address, the top-ranked questions would be about legalizing marijuana or even ending the War on Drugs altogether. Reluctant to confront the issue further, the White House recently changed its approach and announced an April 20, 2011 event on Facebook in which participants will not be allowed to vote at all. Questions can be sent in by email or posted on the Facebook page, but Obama's staff will make selections without any public input....
[T]he rise of marijuana policy into the realm of mainstream public discussion should fascinate, rather than frustrate, our political leadership. It's a phenomenon that should at least interest our elected officials, even if they don't yet fully understand or care that marijuana prohibition funds murder in Mexico, that innocent family pets are slaughtered in botched pot raids, that precious wilderness is being devastated by black-market marijuana manufacturing, that racism defines our marijuana arrest rates, that public servants are being corrupted before our eyes, and that we blow billions each year just to keep the situation as bad as it's been for so long.
If advocates of marijuana reform have become annoying in their efforts to get attention, maybe that's because there is no official time or place to have this debate. How we deal with drug use in America is a question almost anyone would agree is profoundly important, and yet the discussion is ducked by our political leadership at every opportunity.
The real political significance of the Internet is that it's the one place where political priorities are spelled out by the people, unedited, uncensored, and allowed to stand on their own strength. The fact that marijuana legalization gains newfound momentum here is testament to the flawed political machinery of the past, not the quirks of the new social media tools that are just beginning to reshape political landscapes.
Indeed, until he is prepared to discuss the problems with our nation's marijuana laws in much more detail, the President's online events will remain a rather pointless and impractical exercise.
April 20, 2011
"Is a well-fed judge the key to leniency for criminal defendants?"
The question in the title of this post is the first sentence of this new piece from the ABA Journal news blog. The piece is headlined "A Judge’s Full Belly Is Good News for Criminals, Study Finds," and here are the details prompting the query:
It appeared to help would-be parolees in a 10-month Israeli study of eight judges considering more than 1,100 applications for parole, Discover magazine reports. The study found that the judges were more likely to grant parole at the start of the day, and after breaks for a morning snack and lunch.
The odds of a prisoner winning parole started off at 65 percent, then plummeted over a few hours, and returned to 65 percent after the breaks, before plummeting again, the magazine reports. The decisions weren’t entirely arbitrary, however. Prisoners deemed likely to commit another crime, or who weren’t part of a rehabilitation program, were still less likely to win parole.
Study co-author Shai Danziger of Ben Gurion University told the magazine the results show the interplay of “choice overload” and repetitive decision-making. Studies of consumers, for example, show that after making several decisions shoppers start opting for the default offer. In parole board hearings, the default is denial of parole.
Discover discussed the findings with Vanderbilt law professor Nita Farahany. “To me, this study underscores that decision-making is complex and does not occur in a theoretical or formalistic vacuum,” Farahany said. She cites studies that found other professionals, such as medical residents and air force pilots, make more mistakes when they work for long periods without rest. “Improvements in the justice system may likewise require that society acknowledge the effects of biological contributions to legal decision-making,” she said.
New report from Justice Policy Institute on comparative criminal justice strategies
As detailed here, the folks at the Justice Policy Institute have produced a really interesting new report on international criminal justice policies and practices. This new report, which is titled "Finding Direction: Expanding Criminal Justice Options by Considering Policies of Other Nations," appears expressly designed to encourage US criminal justice policy-makers to draw potential wisdom and guidance from what is being done in five particular other countries. Here is JPI's summary description of the report and its goals:
When it comes to criminal justice, there is much to be gleaned from the policies and practices in other democratic nations. Other nations protect public safety without imprisoning as large a percentage of their population, handle law-breaking behavior in ways less reliant on incarceration, and have different approaches to addressing complex social issues.
A country’s criminal justice policies and practices do not exist within a vacuum: they are a product of the larger social systems and political realities to which they are inextricably tied. For this reason, some policymakers may think other countries are too fundamentally different than the U.S. for these policies to be adopted.
This report compares and contrasts the criminal justice policies and social, economic, and governmental structures of five countries -- Australia, Canada, England and Wales, Finland and Germany -- to the United States. While each nation has a unique set of circumstances and realities, each has enough fundamental similarities to the U.S. that cross-national policy adoption could be considered. An evaluation of the various similarities and differences can broaden the existing dialogue and create more momentum for the types of systemic reforms that will reduce the burden of over-incarceration on communities, states, and the country as a whole.
The full report, an executive summary and a series of short issue-specific factsheets drawn from the report are all available at this link.
"Sex, Cells, and SORNA: Applying Sex Offender Registration Laws to Sexting Cases"
The title of this post is the title of this new student note by Stephanie Gaylord Forbes appearing in the William and Mary Law Review. Here is a snippet from the introduction:
Sexting, a combination of the words “sex” and “texting,” has sparked a national debate regarding the appropriate response to the trend. Partially fueling this debate is the concern that, presuming the pictures involved in sexting offenses meet the state’s statutory definition of child pornography, persons engaging in sexting are subject to prosecution under the Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act) and the Sex Offender Registration and Notification Act (SORNA). SORNA requires registration if the sexual offense is “comparable to or more severe than” specified offenses, yet it provides no guidance as to whom makes this determination.
This Note will argue that the determination of whether a sexting offense passes the comparison test is a question of fact that a jury should decide. Part I will provide background information on the sexting debate. Part II will explain the statutory requirements of the Adam Walsh Act and SORNA. Part III will address the application of SORNA to sexting cases, and Part IV will argue that the comparison test involves a question of fact that a jury should determine at trial.
Does today's SCOTUS ruling on prisoner suits under RLUIPA have any criminal justice bite?
The Supreme Court handed down a prisoner rights ruling this morning in Sossamon v. Texas (available here), which concerns inmate lawsuits seeking money damages from state governments for violating federal statutory rights. I have not followed the case, but this SCOTUSblog post by Lyle Denniston has me wondering about whether there is something for criminal justice fans in the ruling:
Raising higher the constitutional barrier to lawsuits seeking money from state governments for violating federal laws, the Supreme Court ruled on Wednesday that Congress must declare very explicitly that states give up their immunity to such claims when they accept federal funds for any program. By a vote of 6-2, the Court barred money damages under a law passed in 2000, the Religious Land Use and Institutionalized Persons Act, but the ruling spoke more broadly on the Eleventh Amendment immunity issue when Congress uses its spending power to set up and pay for a federal program.
The Court’s opinion, written by Justice Clarence Thomas, was keyed to two main conclusions: first, the phrase “appropriate relief” in a federal spending law is not explicit enough to take away states’ immunity to money claims, even though that phrase usually is understood to include money damages, and, second, laws passed under the Constitution’s Spending Clause do not operate like a normal contract, when a state government receives the funds, even though ordinarily money damages are a normal remedy for a contract violation. Both of those constitutional interpretations would apply to any Spending Clause-based program in which states accepted federal funds.
In addition, the opinion, somewhat threateningly, implied that there may be a significant question about Congress’s authority under its spending or commerce-regulation power even to pass the kind of law at issue in this case: a law seeking to compel states to respect the religious rights of persons in prisons and other state-run institutions. The Court said in a footnote that no one had raised those questions, so the decision did not pass upon them. That kind of comment, though, could be seen by at least some states as a hint that they might attempt such a challenge to that federal obligation.
I highlighted the sentence above in part because the federal government frequently seeks to impact lots of state-run criminal justice institutions through the power of the purse. I doubt that Sossamon will really impact these realities, but perhaps others see matters a bit differently.
Can courts really develop "some principled method" for child porn downloading restitution?
I have now had a chance to read closely yesterday's very important and very throughtful DC Circuit child porn restitution opinion in In re: Amy, the Victim in the Misty Child Pornography Series, No. 11-3008 (DC Cir. April 19, 2011) (available here). The initial comments to my first post on the case spotlight how many dynamic (and circuit splitting) issues are addressed in the ruling, and I could (and might) do a series of posts on the many legal and policy issues implicated by this decision.
But there is one especially notable paragraph from the DC Circuit panel in its remand ruling that I want to spotlight and concerning which I wish to encourage collective rumination. Here is the paragraph:
On remand, the district court should consider anew the amount of Amy’s losses attributable to Monzel’s offense and order restitution equal to that amount. Although there is relatively little in the present record to guide its decisionmaking on this, the district court is free to order the government to submit evidence regarding what losses were caused by Monzel’s possession of Amy’s image or to order the government to suggest a formula for determining the proper amount of restitution. The burden is on the government to prove the amount of Amy’s losses Monzel caused. We expect the government will do more this time around to aid the district court. We express no view as to the appropriate level of restitution, but emphasize that in fixing the amount the district court must rely upon some principled method for determining the harm Monzel proximately caused.
This paragraph is fascinating because it (1) spotlights why these child porn restitution cases are so hard (the case records have "relatively little ... to guide [court] decisionmaking"), and (2) stresses the prosecution's ultimate responsibilities and burdens here (the government must "submit evidence regarding what losses were caused by Monzel’s possession of Amy’s image" and/or "suggest a formula for determining the proper amount of restitution" in order "to prove the amount of Amy’s losses Monzel caused"), and (3) obliges the district court to come up with some sound formula for sorting all this out while aslo giving it no assistance (the circuit judges here "express no view as to the appropriate level of restitution, but emphasize that in fixing the amount the district court must rely upon some principled method for determining the harm Monzel proximately caused").
As the question in the title of this post hints, I am not confident that the district court in this case (or common-law courts in general) are going to be able to develop and apply "some principled method" for determining how much harm one particular downloader of one image of a widely-distributed kiddie porn picture proximately caused to the child abused in that picture. I have been thinking about this issue for some time, and I am yet to figure out what principled method exists to link proximately the harm resulting from one particular instance of downloading/possessing this illegal image, especially given that the victim is unlikely even to become aware of that particular instance of downloading/possessing unless and until the downloader is criminally prosecuted and the government gives notice to the victim.
I certainly believe Congress could (and really should ASAP) develop and enact a rational and sound legislative formula for awards of restitution in kiddie porn downloading cases like this one. But I cannot figure out just how courts can and should develop a "principled method" of appropriately linking one particular act of illegal image possession and the resulting proximate harm to the victim in the image.
Perhaps readers have suggestions (including SC and Bill Otis and other frequent commentors who often stress victim interests); I am very eager to hear and discuss principled proposals. And I suspect the district court in this case and others facing this issue could benefit from some collective brainstorming.
Some related recent federal child porn restitution posts:
- "Prosecutors seek nearly $200k for child porn victim"
- Notable report on latest developments in federal restitution awards in child porn downloading cases
- New student note on restitution sentences for child porn downloaders
April 20, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (20) | TrackBack
Terrific new research from FAMM about enactment of federal mandatory minimums
The folks at FAMM have put together a terrific (and brief) report on when mandatory minimums have been created or expanded by Congress since 1987. The report is at this link, and this post at the FAMM blog SentencingSpeak reports on these highlights:
We looked at all the federal mandatory minimum sentencing laws created between 1987 and 2010 and asked ourselves some simple questions:
When did Congress create this mandatory sentence? When did Congress increase it? When did Congress expand or rewrite the law so that more people were subjected to the mandatory sentence?
The answer is: election years, election years, election years.
The conclusions we drew from our data compilation:
(1) Congress is significantly more likely to create or expand a mandatory minimum sentence in an election year than in a non-election year. Since 1987, there has been only one election year (2010) in which Congress did not create or expand any mandatory minimum sentences.
(2) Republican Congresses have created or expanded almost twice as many mandatory minimum sentences (131) as Democratic Congresses (68) since 1987.
(3) Including all presidents, more mandatory minimums have been created or expanded under Republican presidents (111) than Democratic ones (88) since 1987. However, President William J. Clinton presided over the creation or expansion of more mandatory minimums (87) than President George W. Bush (77).
(4) The creation and expansion of mandatory minimums corresponds to periods in which certain crimes received notable or extensive media attention and created fear or panic among Congress and the general public. For example, mandatory minimum drug sentences were created in the late 1980s and almost solely justified by now-debunked fears surrounding abuse of crack cocaine. Many mandatory minimums for child pornography and sex offenses were created in 2003 (when the abductions, rapes, and murders of several young female victims dominated headlines for months) and 2006 (the 25th anniversary of the abduction and death of Adam Walsh, who was the inspiration for the Adam Walsh Child Protection and Safety Act, a law that was vigorously lobbied for by the victim’s father and host of the TV show America’s Most Wanted and by victims’ rights groups nationwide).
Robust debate in Ohio over Governor's plan to sell prisons to private company
One very interesting policy debate now raging in Ohio concerns our new Governor's proposal to sell some state prisons to private companies. This new article in the Columbus Dispatch, headlined "Ohio's new prisons chief pushes reforms; Plan to sell facilities is just 'stabilizing' step, one that's drawn fire," profiles Ohio's new prisons chief and includes a partial defense of the plan:
The governor calls Gary Mohr 'a reformer.' Others call him less-complimentary things. That's what happens when the new head of Ohio's prison system, in his first three months on the job, decides to sell five prisons, turn three of them over to private operators, and lay off 115 parole employees.
Mohr said recent weeks have been the most difficult of his nearly 37-year career in the corrections business. He has been ripped by critics inside and outside the system. But Mohr insists that selling prisons isn't reform; it's "stabilizing" to keep the agency afloat.
He has a larger reform vision of creating a three-tier corrections system, bracketed by "integration" prisons, where inmates work, study and focus on self-development so they can be released to the community, and "control" prisons for the truly bad who are in it for the long haul....
Sentencing reform is one of Mohr's priorities. A series of proposed moves are projected to save nearly 7,000 prison beds: granting credit for an earlier release for prisoners who complete work in education, vocational or employment training, or substance-abuse education; funneling nonviolent, low-level offenders to community corrections facilities; equalizing the penalties for crack and powder cocaine; and allowing early release for inmates who've served 85 percent of their sentences. Most of the proposals are in the pending state budget bill....
[Upon appointment,] Mohr found what he viewed as an alarming and unacceptable plan to close six prisons and ship 12,000 inmates to out-of-state facilities. He countered by suggesting the sale of two state-run facilities, two privately operated prisons, and a closed juvenile facility in Marion. The department has sent prospective buyers a request for proposals.
Tim Schafer, a former prison corrections officer and now an officer with the Ohio Civil Service Employees Association, has known Mohr for 20 years. He said the union has had a good working relationship with him in the past, but now "we have a director who is playing more politics than he is directing."
"I understand he's got a boss who's very pro-privatization. The sad thing is, we've been able to work together on every single issue that's come up in prisons. ... Now, generally, we have to pick up the newspaper to find out what's going to happen to us next."
Meanwhile, as revelaed in this press release, earlier this week the group Policy Matters Ohio published this new report critical of the Governor's prison plan under the titled "Cells for Sale: Understanding Prison Costs & Savings." This page provides links to the report and summarizes its contents this way:
Since the first private prisons were opened in Ohio in 2000, Ohio law has required that any private operator produce savings of at least 5 percent compared to what it would cost the state to operate the same facility. This April 2011 report, written by journalist Bob Paynter for Policy Matters Ohio, finds that cost calculations performed over a number of years by the state have not reliably demonstrated the savings required under the law. A demonstration of lower cost is not sufficient reason to give over this most sensitive government function to private, profit-making companies. But now, with the Kasich administration proposing to sell five state-owned prisons, Paynter’s findings undercut the primary rationale that has been given for doing so.
Some recent related posts on Ohio's prison sale plans:
- "5 prisons to be put on block by state"
- "Sale of prisons, fewer inmates part of budget plan"
- ACLU of Ohio releases new report assailing Governor's plan to sell state prisons
"Lawsuit asks state to pay for inmate's sex-change operation"
The title of this post is the headline of this article in today's Los Angeles Times. Here is the start of the piece:
Lyralisa Stevens, who was born male but lives as a female, is serving 50 years to life in a California prison for killing a San Bernardino County woman with a shotgun in a dispute over clothes.
Stevens is one of more than 300 inmates in the state prison system diagnosed with Gender Identity Disorder, a psychiatric condition addressed in free society with hormone replacement therapy and, in some cases, sex reassignment surgery. Prison officials have provided female hormones for Stevens since her incarceration in 2003. But now she is asking the 1st District Court of Appeal in San Francisco to require the state to pay for a sex-change operation.
Stevens, 42, and her expert witnesses say that surgery is medically necessary, and that removal of her penis and testicles and transfer to a women's prison are the best way to protect her from rape and abuse by male inmates.
As prison officials have struggled to address chronic overcrowding, the constant threat of gang violence and a health system that federal judges have equated with "cruel and unusual" punishment, they have also gone to court multiple times to answer allegations that they failed to properly treat and protect transgender inmates.
Judges have sided with transgender prisoners — who according to a UC Irvine study are 13 times more likely to suffer sexual assault than other inmates — on some significant cases. In 2009, the California Supreme Court ruled that an inmate could sue guards for failing to protect her from repeated rapes and beatings by her cellmate. In 1999, an appeals court ordered prison officials to provide hormone therapy to inmates who were already taking them when they arrived. The treatments cost about $1,000 a year per prisoner.
A ruling in Stevens' favor would make California the first place in the country required to provide reassignment surgery for an inmate, according to lawyers for the receiver appointed to oversee California's troubled prison health system. They argue that the state should be required to provide only "minimally adequate care," not sex-change operations that cost $15,000 to $50,000.
April 19, 2011
DC Circuit weighs in on host of challenging child porn restitution issues
The DC Circuit today issued one of the longest and most thorough circuit opinions to date on the standards for considering and reviewing victim restitution awards that are part of the determination of sentences for child porn offenders. The ruling in In re: Amy, the Victim in the Misty Child Pornography Series, No. 11-3008 (DC Cir. April 19, 2011) (available here), gets started this way:
In December 2009, respondent Michael Monzel pled guilty to possession of child pornography. One of the images he possessed depicted the petitioner, who proceeds in this matter under the pseudonym “Amy.” Amy subsequently sought $3,263,758 in restitution from Monzel. The district court, however, awarded what it called “nominal” restitution of $5000, an amount it acknowledged was less than the harm Monzel caused her. Amy challenges the award in a petition for mandamus and by direct appeal. We grant her petition in part because the district court admitted the restitution award was smaller than the amount of harm she suffered as a result of Monzel’s offense, and we dismiss her direct appeal because it is not authorized by statute.