April 26, 2011
Controversial out-the-door clemency grant in California driving new regulations
As detailed in this local article, which is headlined "Clemency bill related to SDSU killing passes," a controversial California clemency grant by then out-going Governor Arnold Schwarzenegger has quickly lead to a legislative response. Here are the details:
The Assembly on Monday unanimously approved legislation to change the clemency process in the wake of a controversial sentence reduction for the son of an influential politician involved in a fatal stabbing at San Diego State University.
The measure would require that prisoners applying for early release or shorter terms notify prosecutors 30 days before a governor can act on a commutation request. Prosecutors would then let victims and families know, giving all parties an opportunity to protest.
The powers of the governor to pardon criminals or reduce their sentences would not be affected. The bill, which now moves to the Senate Public Safety Committee, has yet to draw a no vote. Assemblyman Marty Block, a San Diego Democrat who is carrying Assembly Bill 648, said he anticipates making a few minor changes but expects Gov. Jerry Brown to eventually sign it into law. “He seems very sensitive to getting crime victims notice,” Block said in an interview before the Assembly floor vote....
Arnold Schwarzenegger triggered outrage among families and prosecutors when, in one of his last acts as governor in January, he reduced by more than half the 16-year sentence handed down to Esteban Núñez for his role in the October 2008 slaying of Luis Santos, a Mesa College student, during a brawl at SDSU.
Núñez, the son of former Assembly Speaker Fabian Núñez, a Los Angeles Democrat with close ties to Schwarzenegger, will serve seven years. “There are people who I am sure feel that justice was not done in that case,” Block said. “I feel in order to keep people’s confidence in the justice system this is a bill to pass.”
Brown earlier signaled skepticism over any legislation that could weaken a governor’s powers. But Block has noted that his measure does not challenge the authority of a chief executive, but provides more perspective. “They can make a better decision,” Block said. “They will get input from the other side.”
Governors could still unilaterally reduce prison terms even if prosecutors and families object, Block said. Dumanis added, “This is about the process — not about the power of the governor ... we are very cautious and mindful of the governor’s power under the constitution.”
Schwarzenegger reignited the controversy just last week he was quoted by Newsweek saying “I feel good” about the decision and acknowledged he stepped in on behalf of an ally. “Of course you help a friend,” he told the magazine.
Block on Monday called those comments “insensitive” and “probably would just add to the perception that this was not the finest hour for justice in California.” After the article appeared, Luis Santos’ father expressed outrage. “This is what his politics are about,” Fred Santos said at the time. “It is for the rich and powerful to do favors for each other. Forget about the justice system.”...
Nothing in current law prevents a governor from seeking the views of prosecutors, families and victims before acting.
I am pleased to see that the California legislature has responded with only (needed?) procedural changes and not new substantive restrictions on the clemency power. But it remains disappointing that a single problematic decision to show some (seemingly unjustified) leniency so quickly prompts a legislative response while in many other settings repeated problematic decisions to refuse to show some (seemingly justified) leniency gets little or no attention and never prompts legal reforms.
April 25, 2011
Should Nevada DA be praised or assailed for a large number of capital prosecutions?
The question in the title of this post is prompted by this very interesting commentary in the Las Vegas Review-Journal, which is headlined "Death penalty numbers add up for district attorney, taxpayers." Here are the excerpts that prompt my query:
Death penalty foes have come up with a killer statistic to promote their cause. Clark County has more pending death penalty cases per capita than any other urban county in the United States, according to Paola Armeni, president of Nevada Attorneys for Criminal Justice. Using her numbers, which District Attorney David Roger is not disputing, Clark County has 80 defendants facing pending trials in which prosecutors are seeking the death penalty....
Understand, this doesn't mean jurors and judges actually hand down that many death penalty verdicts each year. It's a cumulative number. Prosecutors estimate they approve seeking the death penalty for 15 or 16 cases a year, on average, although the number has increased.
There are plenty of theories about why District Attorney Roger, who relies on a death penalty panel, seeks the death penalty more often than prosecutors in other counties. Armeni believes he does it as a negotiating tool. However, Public Defender Phil Kohn credits the large number to Roger's refusal to negotiate with defense attorneys for life without parole in exchange for dropping the death penalty.
Roger countered it's because the crimes warrant the death penalty under Nevada law, which spells out the aggravating circumstances where death is appropriate. Chris Owens, assistant district attorney, estimates that an average of two or three cases a year end up with death penalties. He credited the large number of pending cases to multiple appeals and judges who postpone trials.
What isn't disputed? Death penalty cases are more expensive because there are different standards when a life is at risk. The defendant gets two attorneys, and more research and investigation is required.
Assemblyman Tick Segerblom, D-Las Vegas, is pushing Assembly Bill 501, a study to determine the costs of death penalty cases in Nevada: "At this point it's a financial issue. David Roger is over budget, and yet he has 80 death penalty cases pending. Washoe County only has one. Why is he wasting our money pursuing the death penalty when there is no money and it's virtually impossible to actually put someone to death?"...
When Roger took office in 2003, he said, "The defense bar came to me and said there's a bill before the Legislature which would increase our rates in capital cases. Would you support that bill? I agreed to support that bill, and now eight years later, they are using that as a sword against me."
Meanwhile, Assembly Bill 520 would shift the costs of post-conviction appeals for all indigent defendants, including death penalty cases, from the state back to the county of origin. Clark County opposes that, estimating the unfunded mandate will be more than $500,000 a year and will increase over the years.
If 80 pending death penalty cases equals $80 million in higher trial costs, and millions more for appeals, it makes one question how much is too much when it comes to justice. "The cost of killing killers is killing us," Armeni contends. Should the cost of justice make a difference when the economy is bad?
This commentary spotlights a narrow factual question as to whether DA Roger does or does not use capital prosecutions to secure pleas from murderers, as well as a broader normative question as to whether a prosecutor should or should not use capital charges to secure pleas. The commentary also prompts one to wonder whether, due solely to tight budget realities, a prosecutor ought to be much more willing to take a plea simply because he knows it will save the taxpayer the litigation costs of pursuing a capital case (which, it seems here, this DA has himself help raise by being willing to ensure that the capital defense bar get adequate resources).
Interesting headlines concerning New York prison policies
These two quite distinct news stories concerning New York's prison system caught my eye this afternoon:
- From the New York Daily News here, "Conjugal visits allowed for inmates and partners in same-sex marriages, civil unions"
The lead: "State prison officials are allowing conjugal visits for gay inmates involved in same-sex marriages or civil unions. Recent regulation changes will also allow gay prisoners to take leave from their cell when their loved one is terminally ill."
- From the Auburn Citizen here, "State Senate to review inmate organ donor policies after inmate receives heart transplant evaluation"
The lead: "The [NY] state Senate will hold a hearing to examine organ transplant policies for inmates in the wake of media coverage about a 55-year-old inmate undergoing a heart transplant evaluation at the taxpayer's expense in Rochester. Senator Michael Nozzolio, chairman of the Crime Victims Crime & Correction Committee, said the hearing is being held in response to reports that Kenneth Pike, a former Cayuga County resident convicted of raping and sodomizing a 12-year-old child in 1996, is undergoing a heart transplant evaluation at Strong Memorial Hospital."
Notable Ninth Circuit ruling on rights to parole and parole due process
The Ninth Circuit has an interesting decision today concerning parole processes in Miller v. Oregon Parole Board, No. 07-36086 (9th Cir. April 25, 2011) (available here). Here is how the opinion starts:
We held in Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc), abrogation on other grounds recognized in Pearson v. Muntz, ___ F.3d ___ (9th Cir. 2011), that only state law can give rise to a liberty interest in parole that is entitled to the protections of the Due Process Clause of the Constitution. This habeas appeal presents the question whether an Oregon statute creates a liberty interest in early eligibility for parole. We hold that it does. We also hold, following Swarthout v. Cooke, 131 S.Ct. 859 (2011), that the Oregon Board of Parole and Post-Prison Supervision (“Board”) did not violate Appellant’s due process rights when it denied him that eligibility.
Latest USSC federal sentencing data shows uptick in within-guideline sentences
I am pleased an intrigued to see that the US Sentencing Commission has some fresh new sentencing data now up on its website. The USSC's latest data report, which can be accessed here, is described this way:
First Quarter FY11 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the first quarter of fiscal year 2011. (Published April 19, 2011)
The new data continue to show remarkable stability in the operation and application of the advisory federal guideline sentencing system: these data show, yet again, that around 55% of all federal sentences are within the calculated guidelines range, with prosecutors requesting a below-range sentence in over 25% of all cases. Most notably, these latest numbers reveal a slight uptick in the total number of within-guideline sentences apparently as a result of a slight downtick in the number of judge-initiated below-guideline sentence.
Yet another ACCA case before SCOTUS this morning
The second case being argued before the Supreme Court this morning is McNeill v. United States, which is yet another case dealing with the proper application for the federal Armed Career Criminal Act. This SCOTUSblog page (where the briefs can be found) provides this description of the case:
Issue: Whether the plain meaning of the phrase “is prescribed by law,” which the Armed Career Criminal Act uses to define a predicate “serious drug offense,” requires a federal sentencing court to look to the maximum penalty prescribed by current state law for a drug offense at the time of the instant federal offense, regardless of whether the state has made that current sentencing law retroactive.
Plain English Issue: A federal law enhances sentences for certain defendants who have been previously convicted of three or more “serious drug offense[s],” which the statute defines as a drug offense with a maximum sentence of ten or more years. Does the statute require courts to consider the maximum sentence that was on the books when the crime was committed, or at the time of the present sentencing hearing?
UPDATE: The oral argument trancript in McNeill is now available at this link. A quick skim reveals lots of questions for the defense attorney and not much asked of the Assistant SG. It is often not a good sign when one gets a more active bench than one's adversary, but I rarely am inclined to make firm predictions in ACCA cases.
NY Times editorial about crack sentence debates after FSA
This morning's New York Times includes this editorial concerning federal crack sentencing headlined "Multiple Inequities." Here are excerpts:
Congress moderated, but unfortunately didn’t eliminate, that disparity last year by passing the Fair Sentencing Act of 2010, reducing the ratio to 18 to 1. For anyone, that is, who committed a crack offense after the law went into effect last August. For those who committed crack-related crimes before then but have yet to be sentenced, it doesn’t. They are subject to the old mandatory minimum sentences — 5 years for 5 grams, 10 years for 50 grams.
As Adam Liptak reported in The Times, federal judges have expressed outrage about being forced to impose the harsher treatment with no discretion. While courts decide if the new law can be applied retroactively, the Justice Department has the discretion to do something now, building on a policy Attorney General Eric Holder Jr. began last May.
He called for the “reasoned exercise of prosecutorial discretion,” authorizing a tough but flexible approach. He asked prosecutors to take into account the kind of gross unfairness that results from applying the Fair Sentencing Act to someone who committed a crack offense in August 2010 but not to someone who did so the month before.
By statute, judges must give the mandatory minimum sentences to offenders subject to the old law. Even under the old law, however, prosecutors have considerable discretion. Through plea bargaining, they can also ask for sentences of five years rather than 10. If they decide not to prosecute in federal court, they can let a state prosecute with more flexibility in sentencing.
April 24, 2011
"Effort to privatize Florida prisons raises questions of cost"
The title of this post is the headline of this lengthy article from the Miami Herald. It begins this way:
Florida lawmakers are poised to make dramatic changes to the state’s prison system, turning over as many as 14 prisons to private companies in hopes of trimming the cost of housing the state’s criminals. But as the Legislature moves aggressively to expand the reach of private prisons, fundamental questions remain unanswered. Such as: Do private prisons really save Florida taxpayers money? And if so, how much cheaper are they?
Florida has been experimenting with private prisons for 16 years, with almost 10 percent of the state’s 102,000 inmates now held in seven private facilities. The state agency that oversees these prisons says they will save taxpayers almost $90 million over the next three years. But state financial analysts say they cannot show with any certainty how much money they save over state-run prisons.
At a Senate hearing in February, legislative analyst Byron Brown said differences in how public and private prisons operate and account for expenses “limit the conclusiveness” of any cost comparisons. “There’s never apples to apples,” Brown told lawmakers.
While the benefits of prison privatization may be hard to see, the problems have been obvious: Over the years, the arrangement has been marred by mismanagement by state monitors, lax contracts, overbilling by prison contractors, a corruption investigation, and a legal loophole that allowed sexual misconduct in private facilities to go unpunished.
The Police Benevolent Association, which represents state corrections officers, said the privatization plan could put prison security at risk, with the lower wages of private prisons forcing out veteran workers and increasing staff turnover and vacancies. More than 4,600 corrections jobs could get wiped off the state payroll under one legislative proposal. “Their whole business model is to save money, and you save money on employees,” said Ken Kopczynski, a PBA lobbyist in Tallahassee. “If you have high turnover, that can turn into major problems.”
Critics also say the plan to expand prison privatization is aimed at rewarding an industry that donates generously to the state Republican Party. Since 2001, the Florida GOP has received more than $1.5 million from the two largest prison contractors and their affiliates, records show. More than $1 million of that has come from The GEO Group of Boca Raton — formerly known as Wackenhut — which manages two of the state’s private prisons.
Supporters say state oversight of the private prisons has improved in recent years, and inspections show that private prisons are no less secure than those run by the state’s Department of Corrections. The change is needed, backers say, to rein in the prison system’s budget — which totaled $2.3 billion last year — at a time of mammoth deficits.