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April 30, 2011

"Co-Victims Against the Death Penalty"

The title of this post is the headline of this new editorial in the New York Times.  Here are excerpts:

As the country has increasingly turned against capital punishment as barbaric and horrifyingly prone to legal abuses, defenders are pointing to the emotional needs of the families of murder victims — “co-victims” to those who study crime — as justification. Many family members, however, have said they want no part of that.

When New Jersey abolished the death penalty in 2007 and New Mexico did in 2009, each did so with the support of co-victims. In Connecticut, the Legislature’s joint Judiciary Committee has now approved a bill that would repeal that state’s death penalty, again with the support of victims’ families.

The family members say that rather than providing emotional closure, the long appeals process in death penalty cases is actually prolonging their suffering.  They also say it wastes money and unjustifiably elevates some murders above others in importance. In an open letter to the Connecticut Legislature, relatives of murder victims — 76 parents, children and others — wrote that “the death penalty, rather than preventing violence, only perpetuates it and inflicts further pain on survivors.”...

We do not minimize the suffering of family members, wherever they stand on the issue. But the facts are undeniable.  The death penalty does not deter crime and the long history of legal abuses is well documented.  Connecticut’s full Legislature should pass the repeal bill and Gov. Dannel Malloy should sign it into law.

April 30, 2011 in Death Penalty Reforms, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

April 29, 2011

First Circuit thoughtfully talks through inapplicability of new FSA minimums on appeal

The First Circuit has a thoughtful discussion of its view that the new mandatory minimums of the Fair Sentencing Act are inapplicable to cases sentenced before the FSA became law and now on direct appeal. The ruling in US v. Goncalves, No. 10-1367 (1st Cir. April 29, 2011) (available here), includes these passages (with indicated emphasis in the original):

There is assuredly a policy reason favoring Goncalves' requested result: Congress did think that the superseded law was too harsh, so that it will be too harsh for Goncalves just as much as for those who committed the same offense after the FSA went into effect. Indeed, Goncalves suggests that the discrepancy is itself unconstitutional under equal protection principles; but discrepancies among persons who committed similar crimes are inescapable whenever Congress raises or lowers the penalties for an offense. Most often, the dividing line is the date of the crime....

In legal terms, the FSA is clearly inapplicable to this case; in human terms, the result is much less attractive but that is because the savings statute treats all such penalty reductions generically, and Congress did not expressly make the FSA an exception here.  It could easily have done so; indeed, it remains free to do so now.  More broadly, it could sensibly amend section 109 so that reductions in penalties for a pre-existing crime presumptively applied upon the enactment (or effective date) of the statute to anyone not yet sentenced or otherwise still on direct appeal.

Among other important points, the opinion includes this important footnote concerning what the panel describes as a "distinct" FSA pipeline issue:

At least one district court has held that provisions of the FSA, coupled with later amendments by the Sentencing Commission, do make the FSA's adjustments -- including a lessening of mandatory minimums -- applicable to defendants sentenced after the amendments became effective.  United States v. Douglas, 746 F. Supp. 2d 220 (D. Me. 2010) (now pending in this circuit).  Nothing in this decision is intended to resolve the distinct issues in that appeal.

April 29, 2011 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Multi-opinion Ninth Circuit ruling on federal child porn sentencing

The Ninth Circuit today released a significant new ruling on federal child porn sentencing in US v. Henderson, No. 09-5054 (9th Cir. April 29, 2011) (available here).  Each member of the panel wrote an opinion in Henderson, though this start for the opinion for the court makes the case seem simple enough:

Ronald Henderson challenges the district court’s failure to exercise the discretion accorded it in Kimbrough v. United States, 552 U.S. 85 (2007), to vary from the Sentencing Guidelines based on policy disagreements with them and not simply based on an individualized determination that they yield an excessive sentence in a particular case.  Because it is unclear whether the district judge recognized and exercised his Kimbrough discretion, we reverse and remand for resentencing.

As is often the case in thoughtful post-Booker rulings, there is something for everyone in this new Henderson opinion.  Both the majority opinion and the two concurrences have key passages for those seeking to justify and defend below-guideline or within-guideline child porn sentences. 

April 29, 2011 in Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Notable defense of Connecicut's death penalty produced by CJLF

As detailed in this press release, the "Criminal Justice Legal Foundation has released a report examining the death penalty in Connecticut and the claims made by those proposing repeal."  Here is more from the press release:

The report, entitled “Mend It, Don’t End It,” examines the cases in which the death penalty has been imposed in the state. All the defendants were clearly guilty, and all the homicides were clearly aggravated.  There are no cases where the prosecution’s case for guilt rested on the kinds of evidence that have produced erroneous convictions in other states.

The report also addresses claims that death penalty prosecutions in the state are racially biased and that repeal of the death penalty would result in substantial savings of tax dollars.  Both claims are found to be unsupported by solid evidence.

“Capital trials in Connecticut have been remarkably clean,” said the Foundation’s Legal Director Kent Scheidegger.  “The only real problem is the extreme and unnecessary delay in review of the cases, and that problem can be readily fixed,” he added.

Claims that the death penalty is imposed discriminatorily against black defendants are refuted by the opponents’ own studies in Connecticut, as in other states.  Claimed disparities based on the race of the victim have vanished in most studies when the legitimate factors are properly controlled.  The number of cases in Connecticut is too small to do this kind of statistical control, but there is no reason to think that Connecticut is more biased than other states in this regard.

The report notes that an accurate comparison of the expense of retaining the death penalty versus repeal should include the substantial savings when murderers plead guilty to avoid a death sentence and the high cost of providing medical care to older inmates serving life terms.  CJLF’s study showed that 19% of murder cases in death penalty states ended with a plea bargain with a life or long sentence, while only 5% of murder cases were resolved this way in states with no death penalty.

The full report, which is relatively brief and reader-friendly, is available at this link

April 29, 2011 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5) | TrackBack

After Graham, can a related homicide permit a juve LWOP sentence for a nonhomicide conviction?

The question in the title of this post is prompted by this new local piece, headlined "Iowa Rep: Leaving Capitol without addressing juvenile offenders would be ‘unconscionable’," which details the latest struggles over how the state is to respond to the Supreme Court's ruling in Graham last year.  Here are excerpts:

An Iowa Representative who was once at the heart of a push for stricter mandatory minimum sentences for some juvenile felony offenders is now pushing for compromise because he believes the existing situation is “unconscionable.”

“It isn’t what’s in my heart, but my head understands that we have to act,” Iowa Rep. Jeremy Taylor (R-Sioux City) told The Iowa Independent Thursday after reading our earlier report. “I can’t imagine standing with a victim or a victim’s family and telling them the alternative — that the person convicted of these Class A felonies would become immediately eligible for a parole hearing.”...

In the Iowa House, Taylor, a member of the Judiciary Committee, originally advocated for and won a new form of sentencing that would allow presiding judges to choose a mandatory minimum sentence between 30 and 45 years for such offenders.  That plan was not received favorably by Iowa Sen. Wally Horn (D-Cedar Rapids), who leads the chamber’s Judiciary Committee, and the bill has essentially died for this session....

Taylor, perhaps the most fierce advocate for adopting stricter mandatory minimums than the 25 years originally recommended by the Iowa State Bar Association’s Criminal Law Section, began a push for a 25 year mandatory minimum. The youthful offender bill was amended by the House, and sent back to the Senate on April 13, where it has languished....

One of the problems facing the bill, as amended, is that Horn has adamantly opposed any mandatory minimum sentence for these juvenile offenders above the 15-year mark. Going beyond that, he believes, will not match the spirit of the U.S. Supreme Court ruling, which indicated that while states did not have to guarantee eventual release from prison, they needed to provide the offenders “some realistic opportunity for release” and an opportunity “to demonstrate growth and maturity.”  The Supreme Court did not, however, provide any guidance or recommendations to state legislatures as to what the new sentences should be.

But beyond the disagreements over mandatory minimums, there is another bone of contention for some lawmakers including Taylor.  “I and others believe that the Graham decision is being misapplied to juvenile cases where there is a murder attached,” Taylor said.  “We want to specifically write our law so that when any new cases arrive that include a homicide, those cases will not come under the jurisdiction of Graham and those convicted of the crimes will never have an opportunity for parole.”

The disagreement relates directly to another Iowa criminal case, Jason Means, which was the first case in the nation to follow the federal Graham ruling and paved the way for previous juveniles convicted of such crimes to have their sentences revisited. Represented by Davenport attorney Angela Fritz Reyes, Means brought a motion of illegal sentencing before U.S. District Court in Scott County just days following the SCOTUS decision. U.S. District Court Judge Gary D. McKenrick ultimately ruled that the case was a new rule of substantive law that should be applied to previous cases and struck the portion of Means’ sentence that prohibited an opportunity for parole.

In 1994, when Means was 17, he was found guilty of first degree kidnapping, first degree robbery, second degree murder, criminal gang participation, conspiracy to commit robbery and unauthorized possession of an offensive weapon.  The first degree kidnapping charge, a non-homicide offense, brought the penalty of life without parole. Means and his attorneys continue to seek a parole hearing.

Taylor believes that instead of the court looking at one specific conviction, the court should look at the totality of the case against a juvenile to determine if Graham should be applied.  “If there is a homicide conviction involved, even if that conviction is not the one that led to the life without parole sentence, I believe it should prevent the application of Graham in those cases,” Taylor said, noting that he believes Means should stay behind bars for the remainder of his life.

Some recent related posts:

April 29, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Governor Jerry Brown cancels plan for fancy new death row in California

As explained in this local article, headlined "Jerry Brown cancels plan for $356-million death row," budget austerity in California has killed plans for a new death row facility.  Here are the details:

Gov. Jerry Brown on Thursday canceled construction of a $356-million death row at San Quentin prison, saying it would be "unconscionable" to spend so much on condemned inmates as the state is slashing budgets for education and other social services.

"At a time when children, the disabled and seniors face painful cuts to essential programs, the state of California cannot justify a massive expenditure of public dollars for the worst criminals," Brown said in a statement.

The cancellation will save the state's general fund $28.5 million a year for 25 years, the cost of financing the construction loan, said Brown spokesman Gil Duran. Previous administrations spent about $20 million on planning and design for a two-building complex, Duran said. The project was approved in 2003, before the global financial crisis opened a gaping hole in the state budget....

Construction of a death row to accommodate the growing population of condemned prisoners has been fiercely debated. California taxpayers spend more on prisons than any other service except education, and the cost of keeping an inmate on death row is more than three times the annual upkeep of other prisoners, according to research conducted for the bipartisan California Commission on the Fair Administration of Justice.

The corrections department puts the figure for each inmate's incarceration at $44,500 a year, but Hidalgo said there was no breakdown for death row prisoners.

The new facility would have had room for 1,152 condemned inmates and housed visitor, medical and mental health facilities to cut down on the cumbersome and costly need to escort death row prisoners around the wider institution, Hidalgo said. California now has 713 condemned inmates, 18 of whom are women housed at separate prisons.

Conditions on the existing death row are "just dismal," said Donald Specter, director of the Prison Law Office, which advocates for inmates' rights. The cells are cramped, old and dilapidated, he said, and don't offer prisoners enough room to exercise. The worst conditions, including bird and rodent infestation and a plumbing problem that created "stalactites of human detritus" hanging over balconies, were cleaned up in response to a lawsuit a few years ago, Specter said.

Despite the hardship for inmates, Specter expects Brown's cancellation of the facility to be politically popular, especially given the budget crisis. "I'm sure most folks don't want prisoners to be comfortable, and they certainly are not," he said.

Death penalty advocates and many elected officials also praised the move. "I am glad to see that Gov. Brown has made the right choice to save millions of taxpayer dollars instead of wasting money to expand upon the prison," said Rep. Jeff Denham (R-Atwater), who opposed plans for the new death row when he was a member of the state Legislature. He wanted to close San Quentin and sell the large waterfront site for private development.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports capital punishment, also applauded the decision. "I don't think we need a new death row, either. What we need to do is carry out the judgments we already have," Scheidegger said, calling on the state's leadership to step up the pace in clearing the legal hurdles to resuming executions....

Brown has expressed his personal objection to capital punishment but has also vowed to respect the will of the majority of Californians, who have said they want to keep the death penalty as a sentencing option for the worst criminals. Thursday's order had nothing to do with the governor's personal aversion to the death penalty, Duran said: "This is purely about dollars and cents."

April 29, 2011 in Death Penalty Reforms, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

April 28, 2011

Some deep thoughts on punishment theory and criminal procedure

Classes have wrapped up for the school year (though I still have grading to finish), and it will probably be a few days before I start feeling really guilty about returning to all the writing projects that stalled during a busy semester.  This window presents a perfect time to do some deep professional reading, and these two interesting looking pieces on SSRN are going to the topic of my to-read pile:

The Ideological Basis of Punitive Sentiment: Beyond Instrumental and Relational Perspectives by Monica Gerber & Jonathan Jackson

Abstract: Why do people call for the tougher sentencing of criminal offenders? According to an instrumental perspective, punitiveness is driven by the experience of victimisation and fear of crime.  People are motivated to feel safe and secure, and they look to criminal sentencing to reduce the likelihood of future harm.  According to a relational perspective, punitiveness is driven by concerns about social decline and community breakdown. People are motivated to feel part of cohesive social groups, and retributive punishment symbolically restores moral boundaries and values.  Building on the work of Tyler and Boeckmann (1997) and King and Maruna (2009), we present evidence that instrumental and relational predictors each explain some variation in punitive sentiment.  But we also show that instrumental and relational concerns lose much of their explanatory power once we control for an authoritarian ideology.  We conclude with the argument that instrumental and relational concerns are bound up with punitive sentiment and right-wing authoritarianism in complex but as yet rather under-theorised ways in criminology.  Central to neo-Durkheimian attitudes towards punishment may be an authoritarian preference for tight, hierarchical social structures and related beliefs about a dangerous world that lacks cohesion.

Is it Finally Time to Put 'Proof Beyond a Reasonable Doubt' Out to Pasture?  by Larry Laudan

Abstract: This paper diagnoses several of the liabilities of proof beyond a reasonable doubt, including its subjectivity, its ambiguity, and its presumed universal applicability across all crimes and all defendants.  It argues further that the Supreme Court's repeated claims that this standard follows logically from an acknowledgement that false convictions are worse than false acquittals is an unsound inference.  Finally, it proposes that future discussions of the standard of proof should take place in an environment in which detailed empirical information about the error rates at trial should be the engine driving the re-formulation of the standard of proof.

April 28, 2011 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (13) | TrackBack

Notable sentencing terms in plea deals for high-profile abducting couple

This story, headlined "Garridos plead guilty in Jaycee Dugard kidnapping case," reports on today's plea in a high-profile abduction case out of California.  I found the sentencing particulars blogworthy:

A married couple charged with kidnapping Jaycee Dugard when she was 11 and holding her captive for nearly 20 years pleaded guilty to their crimes Thursday under an agreement that calls for life sentences.

Phillip Garrido, 60, and his wife, Nancy, 55, entered their pleas in an El Dorado County courtroom. They faced 29 charges of kidnapping and sexual assault.  Phillip Garrido repeatedly raped Dugard and fathered two daughters with her while confining her to a backyard warren of tents and soundproof sheds in their rural home in an unincorporated section of Antioch.

Under the plea deal, Phillip Garrido will be sentenced on June 2, with a maximum possible sentence of 431 years to life in prison.  Prosecutors said he waived his right to appeal.

Nancy Garrido, who helped snatch the girl in 1991 and later helped deliver the babies her husband fathered with Dugard, pleaded guilty in return for a sentence of 25 years to life, in addition to 11 more years.  Nancy Garrido pleaded guilty to kidnapping and one count of rape by force in addition to other charges....

The plea deal makes Nancy Garrido eligible for parole in 31 years, but [El Dorado County District Attorney Vern] Pierson said he was "confident she will spend the rest of her life in prison."  Nancy Garrido pleaded guilty to the rape charge under the theory that she aided and abetted the sexual assault, Pierson said.

I am not sure I understand just what benefits the defendants' received from these pleas, as neither appears to have committed crimes that would make them eligible for the death penalty.  Perhaps the deal was sealed by term that gave Nancy Garrido an opportunity for parole when she is in her mid-80s, though the local DA seems sure she will never get out.

April 28, 2011 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Intriguing Ninth Circuit ruling on procedure surrounding federal probation officers’ sentencing recommendations

The Ninth Circuit today handed down an intriguing little federal sentencing procedure opinion in US v. Whitlock, No. 10-30124 (9th Cir. April 28, 2011) (available here), which gets started this way:

We held in United States v. Leonard, 483 F.3d 635, 638-39 (9th Cir. 2007), that “sentencing procedures for probation and supervised release violations are primarily governed by Rule 32.1 of the Federal Rules of Criminal Procedure, not Rule 32.” (Emphasis added.)  This case presents a situation where Rule 32.1 does not speak to the particular question at issue — whether probation officers’ sentencing recommendations following the revocation of supervised release must be disclosed.  We conclude that Rule 32(e)(3) logically fills in the gap.  Therefore, like post-conviction sentencing recommendations, post-revocation sentencing recommendations must be disclosed unless the district court directs otherwise “[b]y local rule or by order in a case.”  Fed. R. Crim. P. 32(e)(3). Accordingly, United States v. Baldrich, 471 F.3d 1110 (9th Cir. 2006), applies here.  We hold that the district court complied with Baldrich’s requirement that the court disclose any factual information in the confidential recommendation on which it relied in sentencing.  See id. at 1113-14.  We further hold that Rule 32(e)(3) and its implementing local counterpart, District of Idaho Local Criminal Rule 32.1, comport with the Equal Protection Clause, so there was no violation of Whitlock’s constitutional rights.

April 28, 2011 in Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

"Recidivism’s High Cost and a Way to Cut It"

The title of this post is the headline of this new New York Times editorial.  Here are excerpts:

Corrections costs for the states have quadrupled in the last 20 years — to about $52 billion a year nationally — making prison spending their second-fastest growing budget item after Medicaid.  To cut those costs, the states must first rethink parole and probation policies that drive hundreds of thousands of people back to prison every year, not for new crimes, but for technical violations that present no threat to public safety.

According to a new study by the Pew Charitable Trusts’ Center on the States, 43 percent of prisoners nationally return to the lockup within three years.  The authors estimate that the 41 states covered in the study would reap a significant savings — $635 million in the first year — if they managed to cut their recidivism rates by just 10 percent....

The study, which looked at prisoner release data in 1999 and 2004, found recidivism rates varied widely. Some of the highest rates were in California (57.8 percent) and Missouri (54.4). New York is slightly under the national average (39.9 percent).  Oregon had the lowest: only 22.8 percent of inmates released in 2004 returned within three years. Crime has also declined significantly.

In the 1990s, the Oregon Legislature created a rating system that allows parole officers to employ a range of sanctions — short of a return to prison — for offenders whose infractions were minor and did not present a danger.  A parolee who fails a drug test can be sent to residential drug treatment or sentenced to house arrest or community service. In 2003, the state passed a law requiring all state-financed correctional treatment programs to use methods that have been shown to improve client compliance and to reduce recidivism.

Pressured by the dismal economy, many states, including New York, are looking for ways to cut recidivism.  The wise approach would be to adopt the programs that have proved so successful in Oregon.

April 28, 2011 in Criminal Sentences Alternatives, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8) | TrackBack

New prisoner suit in California contests race-based lockdowns

As detailed in this new AP article, which is headlined "Group sues California over race-based prison lockdowns," a new lawsuit assails how lockdowns are conducted in the Golden State.  Here are the basics:

California's use of race as a basis for locking prisoners in their cells after fights amounts to illegal discrimination and should be banned, attorneys representing inmates said in a class-action lawsuit filed Wednesday. The policy unfairly punishes innocent inmates simply because they have the same color skin as those involved in the violence, the nonprofit Prison Law Office said in its suit, filed in federal court in Sacramento.

Terry Thornton, a spokeswoman for the state Department of Corrections and Rehabilitation, said lockdowns are sometimes necessary to protect safety and security. It is not the department's policy to base lockdowns and other restrictions solely on race or ethnicity, she said.

However, a proposed revision to the department's lockdown policy says inmates often organize themselves based on race or geographical area. The policy acknowledges that some uninvolved inmates may be affected, but it is the department's goal to get them back to a normal routine as soon as possible.

Rebekah Evenson, an attorney with the Berkeley-based Prison Law Office, said the U.S. Supreme Court rejected a similar argument in 2005 when it told the state to end its policy of housing inmates based on their race. The high court and other states have found that such race-based policies encourage violence by splitting inmates along racial lines, Evenson said.

April 28, 2011 in Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (3) | TrackBack

April 27, 2011

"Head in the sand over prosecutorial misconduct"

The title of this post is the headline of this recent commentary authored by Erwin Chemerinsky and published in The National Law Journal. The subhead for the piece reads "The Supreme Court has sent a disturbing message that it just doesn't realize there is a serious problem infecting our criminal justice system."  Here is how it starts:

The U.S. Supreme Court is oblivious to a serious problem in the American legal system: prosecutorial misconduct.  Study after study has demonstrated serious prosecutorial misconduct at both the federal and state levels.  For example, early this month, the Northern California Innocence Project at Santa Clara Univer­sity School of Law released a study in which it documented 102 California cases, and 31 from Los Angeles County, in which prosecutors engaged in misconduct.  Egregious prosecutorial misconduct has occurred in high-publicity cases, such as the prosecution of the Duke University lacrosse players and the conviction of the now late Alaska Sen. Ted Stevens.

ortunately, the Supreme Court has not gotten the message.  Twice in the past three years the Court has considered lawsuits by innocent individuals who were convicted and spent years in prison because of prosecutorial misconduct.  In both instances, the Court held that the victims could not recover.  Together, these cases send a disturbing message that the Court is shielding prosecutors from liability.  The result is no compensation for wronged individuals and a lack of adequate deterrence of prosecutorial misconduct.

April 27, 2011 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (52) | TrackBack

You be the judge: what's a fitting response to diplomat duty as a suggested alternative sanction?

The suggestion that readers imagine serving as a judge and respond to a unique sentencing request is prompted by this new New York Times column, which begins this way:

Former State Senator Vincent L. Leibell III, who pleaded guilty in December to corruption charges, is to be sentenced in two weeks. Prosecutors are seeking two years in prison. But Mr. Leibell, a Republican from Putnam County, has an alternate proposal: a tour of duty as a diplomat in some unsteady corner of the globe — perhaps Iraq or Libya.

“I have spoken with people in the court system and told them of my great willingness to serve during the current difficulties our nation is experiencing,” he wrote to Judge Warren W. Eginton of the United States District Court.

Mr. Leibell, 64, a former Navy captain who spent decades in the Reserve, served 28 years in the Assembly and then the Senate, where he was chairman of the homeland security committee. He said his background in public service would “lend itself to our efforts at nation-building in the Middle East.”

“While I recognize that I am somewhat older and not fluent in those languages,” he wrote, “I would nonetheless be honored to serve on one of our civilian nation-building teams. I believe that I would be uniquely qualified if allowed to serve.”

Mr. Leibell’s seemingly novel suggestion for an alternative sentence adds yet another eyebrow-raising chapter to his downfall, which was as swift as it was devastating. Mr. Leibell’s guilty plea came only a month after he won election as Putnam County executive — a position he never actually assumed.

Mr. Leibell pleaded guilty to obstruction of justice and tax charges, for which sentencing guidelines call for 18 to 24 months’ imprisonment. Prosecutors asked Judge Eginton to impose a sentence at the top of that range “to send the unmistakable message that those who are elected to make the law must first obey it themselves.”

But in a four-page letter, Mr. Leibell asked to be spared prison. In addition to his interest in nation-building, he said he was seeking admission into a master’s program in diplomacy. A slew of former constituents and friends also wrote to the judge on his behalf, including State Senator Stephen M. Saland, a Republican from Poughkeepsie.

April 27, 2011 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (11) | TrackBack

Rhode Island legislator making notable claims after bust for DUI and pot possession

There is a telling and somewhat comical story developing in the Northeast after a leading Rhode Island state legislator got in trouble with the Connecticut cops.  First the basics from this New York Daily News piece, which is headlined "Robert Watson, Rhode Island lawmaker who ripped pot smokers, busted for marijuana possession":

A Rhode Island lawmaker, who recently slammed his colleagues by invoking the image of pot-smoking immigrants, has been busted for alleged marijuana possession.

Republican House Minority Leader Robert Watson was arrested in East Haven, Conn., on Friday at a police checkpoint and was also charged with driving under the influence. "Trace evidence of marijuana was discovered and I was charged with operating under the influence, a charge I vehemently deny," Watson told the Providence Journal.

The 50-year-old smelled like alcohol and pot, he slurred his words, and his eyes "were extremely glassy and bloodshot," according to the police report.  Authorities found a "small plastic sandwich bag containing a green leafy plantlike substance and a small wooden marijuana pipe."  His blood-alcohol level was 0.05%, which is below the state's 0.08 limit.

And now for some interesting spin from this high-profile DUI and drud defendant, as reported in this Providence Journal piece headlined "Watson presents his version of arrest in Connecticut":

In a televised speech on the House floor about his arrest in Connecticut last Friday on driving-under-the-influence and marijuana-possession charges, House Minority Leader Robert A. Watson admitted to using marijuana to treat flare-ups of the pancreatitis that landed him in the hospital last November....

“I confess I did treat with marijuana on one of those rare occasions where I had that debilitating pain that literally had me flat on my back and wondering at what point do I decide an ambulance comes and takes me away. And I’ve got to confess it worked.  It provided relief.  And it alleviated the pain.”

“I didn’t smoke marijuana that day because I didn’t suffer a relapse,” he said of the Friday of his arrest.  But he acknowledged that he is not among the 3,428 Rhode Islanders legally authorized to use marijuana under the state’s medical-marijuana program because he feared his personal medical information would somehow leak out of the state Department of Health.

A Health Department spokeswoman said: “We have been running the program for almost four years now and we have not released any patient’s names.”

“Now I know that the Department of Health prides itself on the confidentiality of that program. But let’s face it,” Watson said. “I am a public official, as we all are. We’re a small state, and I am not certain that my privacy wouldn’t be compromised were I to do this medical-marijuana treatment in the proper form and fashion.”

In his speech, Watson also raised questions about how he was treated by the police in East Haven, Conn., after one of the officers saw his General Assembly ID in his wallet, asked what it was and learned that he was a state legislator in Rhode Island. “I wish there had been cameras there. I wish it wasn’t just my word against the police,” he said. But “I deny that I failed any of the sobriety tests.”

The East Haven police did not respond to a request for comment, but a dispatcher confirmed that none of the community’s police cruisers are equipped with cameras....

A Pawtucket police lieutenant, DaSilva took some offense to Watson’s characterization of what the Connecticut police did that night. “I was not there. But there are two sides to every story,” he said in an interview after Watson’s speech....

Watson, 50, is due back in Connecticut on May 11 to face charges in a New Haven court of operating a vehicle under the influence of alcohol and possession of marijuana and drug paraphernalia....

Watson said the depiction of him, in the police report, as someone “incapable of standing and incapable of speaking” is “belied by the fact that I was processed and released in an hour… Police do not release intoxicated individuals. They detain them for [their] own personal safety and the safety of the public.”

Questions remained about how Watson obtained the marijuana and how he got home that night.  Watson, 50, was not immediately available to answer follow-up questions.

I am hoping that this state legislator might soon become a vocal advocate not just for medical marijuana, but for complete marijuana legalization.  After all, if he thinks he can and should be trusted to self-medicate for pain problems without going through the (onerous?) process for getting approval from using pot, why shouldn't he likewise trust his constituents to do the same?

April 27, 2011 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (18) | TrackBack

"How far should prison health care go?"

The question in the title of this post is from the headline of this local piece prompted by a recent New York story involving an imprisoned rapist in line for a heart transplant (blogged here).  Here are excerpts from the piece:

Kenneth Pike, a 55-year-old state prison inmate doing an 18-40 year sentence for raping a 12-year-old girl, saved everyone a lot of ethical angst when he decided to turn down a heart transplant at public expense.  But the issue is still out there, and it seems like only a matter of time before we’re confronted with it again.

Pike had been flown last week from his prison in Coxsackie to Strong Memorial Hospital in Rochester for a transplant evaluation.  If he was approved, the state would have been on the hook for an operation estimated at close to $800,000.  But his sister said Monday that in light of the public debate his sitation sparked, he decided against it.  Another relative said he will probably die without the transplant.

The situation prompted state Sen. Michael Nozzolio, R-Fayette, to call for a hearing to review transplant policies. No date was immediately set for it.

The episode raises all sorts of difficult questions: Should society pay such extraordinary costs for a prisoner, let alone one who committed such a heinous crime?  Does it depend on the crime?  Where is the line?  Does it depend on the cost?  How do you define “too expensive”?

Should an imprisoned rapist be in line for a transplanted organ that could go to someone leading an honest, productive life?  If you say no, are you headed down a path of weighing these decisions on the basis of a person’s productivity or value to society?  Who makes that call?  What about people committed to state mental institutions or under state care for disabilities?...

One last thought: are you an organ donor, and has this given you second thoughts about that choice?

Dare I joke that in prisons, the one place that persons get universal single-payer health care, we might soon need to have death panels to help sort out just who should and should not get expensive health care?  I wonder what Sarah Palin or others  have expressed concerns about government-run health care might think about the use of death panels in this government-run-health-care setting?

April 27, 2011 in Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (20) | TrackBack

April 26, 2011

Iowa legislature unable to respond effectively to SCOTUS ruling in Graham

This lengthy new piece appearing in the Iowa Independent spotlights the difficulties that the Hawkeye state is having in trying to craft an appropriate legislative response to the Supreme Court's ruling last year in Graham. The piece's headline and subhead tells the basic story: "Juvenile justice bill essentially dead for session; Without legislative guidance some new juvenile felony offenders will receive life, but be immediately eligible for parole." Here are some of the interesting details of a piece that is worth reading in full:

Iowa lawmakers have been unable to find compromise on new sentencing guidelines for juveniles convicted of certain non-homicide felonies.  It’s a situation that will likely result in any new juveniles convicted of such crimes becoming immediately eligible for parole.

While Republicans would like to see hefty mandatory minimum sentencing requirements for such offenders and are willing to offer Iowa judges unprecedented discretionary latitude in such sentencings, Democrats want to make sure new sentencing guidelines match the spirit of the U.S. Supreme Court decision that mandated the changes.

In 2010, shortly after the Iowa Legislature ended its session, the U.S. Supreme Court ruled in Graham v. Florida that it was cruel and unusual punishment and therefore unconstitutional to sentence a juvenile, convicted on a non-homicide offense, to life in prison without the possibility of parole.  Since Iowa law mandates such sentences for a few non-homicide offenses, the state has been grappling with compliance of the federal mandate.

Since the legislature had ended its session, the Iowa Supreme Court was the first state institution to offer a pathway to compliance.  In a December 2010 opinion justices called upon the Graham decision when they reduced the sentence of Julio Bonilla, who was convicted of first degree kidnapping in 2005 when he was 16.  Instead of serving life in prison without parole, Bonilla will now have the opportunity to appear before the parole board and the the possibility of release....

House File 607 was approved 81-to-17 by the Iowa House on March 28 and, upon reaching the Iowa Senate, was sent to the Judiciary Committee.  As approved by the House, juveniles convicted of class A felonies would become eligible for parole after a prison term of between 30 and 45 years — the exact mandatory minimum sentence between those two figures would be imposed at the time of sentencing by the presiding judge.

The bill was originally crafted by a diverse task force comprised of prosecutors, defense attorneys, citizen advocates, members of law enforcement and representatives from the Iowa Attorney General’s Office, and called for a mandatory minimum term of incarceration of 25 years....  Yet when the bill arrived at the Iowa House, Republicans, encouraged by the Iowa County Attorneys Association, wanted much stiffer mandatory minimums. Democrats countered that the sentences being suggested by Republicans did not follow the spirit of Graham, which indicated that while states did not have to guarantee eventual release from prison, the states did need to provide these juvenile offenders “some realistic opportunity for release” and an opportunity “to demonstrate growth and maturity.”

Iowa Sen. Wally Horn (D-Cedar Rapids), who leads the Senate Judiciary Committee, told The Iowa Independent that he didn’t feel anything above a 15-year mandatory minimum sentence met with the spirit of what the U.S. Supreme Court wrote in its decision....  Horn feels so strongly about having a 15-year mandatory sentence that he has also essentially killed off a youthful offender bill that had the original 25-year mandatory minimum attached.

But without new legislative guidelines, Iowa judges imposing sentences on juveniles convicted on non-homicide Class A felonies will have no other legal choice at their disposal than to duplicate the same application as the Iowa Supreme Court.  So, instead of the minimum 15-year sentences advocated by Horn, juveniles newly convicted of these crimes will have no mandatory minimum sentence at all. They will immediately become eligible for annual parole board reviews — the first one taking place as soon as one year following their incarceration.

April 26, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Third Circuit orders new capital sentencing heading for (in)famous Mumia Abu-Jamal

As detailed in this AP article, today a panel of the Third Circuit "ordered a new sentencing hearing for convicted police killer and death-row activist Mumia Abu-Jamal, finding for a second time that the death-penalty instructions given to the jury at his 1982 trial were potentially misleading." Here are more of the basics:

The 3rd U.S. Circuit Court of Appeals told prosecutors to conduct the new sentencing hearing within six months or agree to a life sentence. Abu-Jamal's first-degree murder conviction still stands in the fatal shooting of Officer Daniel Faulkner.

District Attorney Seth Williams said he would consider mounting another appeal to the U.S. Supreme Court. Defense lawyers for the former Black Panther, meanwhile, said the ruling addresses "an unfortunate chapter in Pennsylvania history."...

Tuesday's ruling is the latest in Abu-Jamal's long-running legal saga. A federal judge in 2001 first granted him a new sentencing hearing because of the trial judge's instructions on aggravating and mitigating factors. Philadelphia prosecutors have been fighting the order since, but the 3rd Circuit ruled against them in a pivotal 2008 decision.

In rejecting a similar claim in an Ohio death-penalty case last year, the Supreme Court ordered the Philadelphia appeals court to revisit its Abu-Jamal decision.  On Tuesday, the 3rd Circuit judges stood their ground and noted differences in the two cases.

The unanimous panel ruling in this lastest (and likely not last) chapter in the Mumia Abu-Jamal saga is available at this link.

UPDATE This morning's press story on the Third Circuit's ruling, which is headlined "D.A. to appeal court ruling for Abu-Jamal resentencing," provides this preview of what's next in this legal saga:

After speaking with the widow of slain police officer Daniel Faulkner, District Attorney Seth Williams said he would appeal a ruling by the U.S. Court of Appeals here yesterday awarding convicted cop-killer Mumia Abu-Jamal a new sentencing hearing.

Williams will ask the U.S. Supreme Court to overturn the appeals court's decision and reinstate Abu-Jamal's death sentence. The D.A. said Maureen Faulkner was "devastated" by the ruling.

Abu-Jamal, 57, was convicted in 1982 of first-degree murder in Faulkner's slaying and was sentenced to death.  Yesterday's ruling was the result of a U.S. Supreme Court decision last year that ordered the appeals court to review its 2008 ruling that ordered a new sentencing hearing for the former Black Panther.  Both yesterday and in 2008, the appeals court ruled that Abu-Jamal's murder conviction should stand but called for a new sentencing hearing because death-penalty jury instructions were misleading

April 26, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (36) | TrackBack

Justice Department, six months later, responds to Senators' inquiry about handling FSA pipeline cases

Thanks to a very helpful reader, I have gotten a copy (and provide for downloading below) of a response from the Justice Department to the letter, dated November 17, 2010, from Senator Patrick Leahy and Senator Dick Durbin to Attorney General Eric Holder (blogged here) which urged the Justice Department to "apply [the Fair Sentencing Act's] modified mandatory minimums to all defendants who have not yet been sentenced, including those whose conduct predates the legislation's enactment."  

The response says little more than what the DOJ lawyers have been saying in courts around the country, namely that the Fair Sentencing Act's silence about implementation dates means that the general Savings Statute entails that only conduct after the effective date of the FSA gets the benefit of the new mandatory minimums.  Nevertheless, the letter is an interesting read, especially because it includes as attachments the internal memos sent from Main Justice to all prosecutors about how they should respond to the enactment of the FSA in August 2010 and to the promulgation of revised crack guidelines in November 2011.

Download FSA_Holder_letter_response_042511

Some posts on this FSA issue:

April 26, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (8) | TrackBack

"Making Padilla Practical: Defense Counsel and Collateral Consequences at Guilty Plea"

The title of this post is the title of this new piece by Professor Gabriel Chin, which is now available via SSRN.  Here is the abstract:

This essay, part of the 2010 Wiley A. Branton Symposium at Howard Law School, addresses some of the practicalities of making the Supreme Court's decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010) an operational reality.  Padilla held that defense counsel have an ethical obligation to advise their clients of the possibility of deportation when pleading guilty. The inescapable logic of Padilla is that counsel's duty will extend to warning about other serious collateral consequences as well.  Putting more demands on overburdened defense counsel raises a number of issues.  First, how can public defenders, who are already challenged in providing basic representation add more to their duties? Second, how can defense counsel, who are not specialists in collateral consequences, be aware of the hundreds or thousands of potential collateral consequences which could apply in any given case?

This essay proposes that the standards of competent representation should continue to develop even if they are not always met because of governmental funding choices.  In addition, introducing collateral consequences into plea negotiation will sometimes facilitate a better disposition of the criminal case.  Although Padilla means more work for defense attorneys, it also promises better outcomes for clients.  The essay also makes some suggestions about ways of identifying the most common and most serious collateral consequences in each state, to simplify the process of advising clients.

April 26, 2011 in Collateral consequences, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Unwarranted disparity or proportional justice?: lots more federal time for sexting than multi-million dollar Ponzi scheme

Two new reports of federal sentencing outcomes caught my eye this morning because the offense that struck me as less significant and as involving many fewer victims resulted in a much longer federal sentencing term. As the title of this post indicates, I am interesting in reader perspectives as to whether these two cases reveal and reflect unjustified disparities or proportional justice.  

This piece reports on the federal sentencing of an Arkansas man involved in "what prosecutors called an $80 million Ponzi scheme involving automated teller machines that were never bought."  According to the press story, the defendant induced numerous victims "to buy roughly 4,000 ATMs, promising the machines would generate fees from cash withdrawals, but that 90 percent of the ATMs did not exist or were never purchased."

This piece reports on the federal sentencing of a Nebraska man who "convinced a 13-year-old Minnesota girl to send him sexually explicit photos of herself by cell phone." According to the press story, the defendant over an 18-month period "requested and received a series of photos depicting the girl in sexually explicit conduct."

The ATM Ponzi schemer got 8.3 years in federal prison; the sexting pervert got 12 years in federal prison.  I certainly do not wish or mean to minimize the harms that the sexting perv might have created for the young girl who was talked into sending sexual pictures of herself to a dirty old man, and both of these fellows are clearly to face a significant loss of liberty for their non-violent crimes.  Still, the threats and harms created by Ponzi schemer worries me more that those posed by sexters.

Especially as there is so much debate now about increased federal sentencing disparity after Booker, I wonder if it is even possible to systematically assess whether this kind of inter-offense sentencing difference when different crimes are involved serves as proof that the modern federal sentencing system is not especially good at achieving forms of proportional justice.  Any special thoughts on these cases and the broader issues, dear readers?

April 26, 2011 in Federal Sentencing Guidelines, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (6) | TrackBack