June 11, 2011
Are severe mandatory minimums for certain gun crimes especially problematic after Heller?
The question in the title of this post is inspired by this Washington Times commentary from FAMM president Julie Stewart headlined " Second Amendment injustice Mandatory minimums for self-defense must end." Here are excerpts:
In June 2008, the U.S. Supreme Court ruled that the Second Amendment to the Constitution protects an individual’s right to possess a firearm “and to use that arm for traditionally lawful purposes, such as self-defense within the home.”... This [ruling] must ring awfully hollow to Orville Lee Wollard who, two years ago tomorrow was sentenced to two decades in a Florida prison for protecting his family with a firearm.
On a spring morning in 2008, Wollard got a panicked call from his wife. The teenage boyfriend who had been beating up his 15-year old daughter was back at their house causing trouble. Wollard rushed home and found the boy on the porch and his daughter with a black eye. Wollard told the boy to leave, but instead, the boy attacked him, ripping out stitches from Wollard’s recent surgery, and then ran off with Wollard’s daughter. When the two returned several hours later, the boyfriend began shoving Orville’s daughter around the Wollards’ home. Wollard’s wife and eldest daughter screamed for him to do something. Wollard was frightened for his daughter’s and his family’s safety.
He grabbed his legally registered pistol and confronted the boy, again asking him to leave. The boy stopped assaulting Wollard’s daughter. He smiled, punched a hole in the wall, and began moving toward Wollard. Wollard, who had had firearms training as a former member of the auxiliary police force, aimed a bullet into the wall next to the boyfriend to scare him. No one was hurt, and the boy finally left. That is where this story should have ended, but it didn’t.
Several weeks later, the abusive boy called the police to report Wollard for aggravated assault, and Wollard was arrested. Orville Wollard did not think he had committed a crime by protecting his family. He rejected a plea deal that would have given him probation and a felony record and instead took his case to court. Prosecutors charged Wollard with various crimes, including shooting into a dwelling (his own house), child abuse (because the boy was under 18) and aggravated assault with a weapon. A jury convicted Wollard of possessing and discharging a firearm, which triggered Florida’s mandatory minimum sentence for aggravated assault with a weapon. Wollard was sentenced to the mandatory prison term of 20 years without parole.
At sentencing, the judge said, “This [sentence] is obviously excessive … if it weren’t for the mandatory minimum … I would use my discretion and impose some separate sentence, having taken into consideration the circumstances of the event.” For his part, Wollard told the court, “I’m amazed. I’m stunned. I have spent my life pursuing education [and] helped the community. [T]hen one day this person breaks into my house … he continues to do this, he assaults my daughter, he threatens me, I protect myself. [N]o one is injured in this whole thing, and I’m going to prison. … And again, with all respect to [the court], I would expect this from the former Soviet Union, not the United States.”
Wollard is right.... To be clear, a jury found Wollard guilty. Jurors apparently did not believe he acted in self-defense..... Whether this jury reached the correct conclusion is open to debate. Whether prosecutors should have charged a crime that carried such a harsh mandatory minimum sentence bears scrutiny.
What is beyond debate is that when judges are prevented from applying sentences that are appropriate to the unique circumstances of each case, injustice is inevitable. And when the constitutional right to bear arms is at stake, violations of the bedrock tenet of American justice -- that the punishment should fit the crime and the offender -- are all the more intolerable.
June 11, 2011 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Second Amendment issues | Permalink | Comments (19) | TrackBack
Pastor makes interesting pitch for preserving Racial Justice Act in North Carolina
A local North Carolina paper has this fascinating commentary by Reverand Shawn Blackwelder, the pastor of Riverside United Methodist Church in Elizabeth City, NC, headlined "Be honest about race bias: Keep Racial Justice Act." Here are excerpts:
From time to time, each of us is called to speak out about issues of justice and honesty, and I feel the N.C. Racial Justice Act is one of those issues. The state of North Carolina became a model of justice, honesty and courage in 2009 when the Racial Justice Act was passed and signed into law. It simply provides for a court review to determine whether racial bias influenced a death sentence or a prosecutor’s decision to seek a death sentence. If race is found to have been a factor, the defendant would not go free, but would be re-sentenced to life without parole....
Like everything to do with the death penalty, the Racial Justice Act has its opponents as well as its supporters in the legislature. Currently, the opponents are directing the conversation, as the N.C. House of Representatives is scheduled to vote next week on a bill to repeal the Racial Justice Act. If this bill passes, it would be a huge step in the wrong direction, and I hope that Gov. Perdue will veto the measure.
I need to say a few words about what the Racial Justice Act is not. It is not an attempt to vilify those in law enforcement or the courts. I have law enforcement officers in my congregation, and I know that because they are on the front lines, putting themselves out there, they are often much more aware of and sympathetic to the problems of race and injustice. In short, they know more about it and do more about it than most of us....
Recently I hosted a press conference with local pastors in support of the Racial Justice Act. We held it in the sanctuary in the shadow of the cross, which reminded us of two things: first, Jesus Christ, who was unjustly tried and subjected to the death penalty and second, that we are all sinners in need of grace. So, it is a legal matter and a matter of justice, but it is also a spiritual matter and a matter of honesty....
The N.C. Racial Justice Act does not seek to point fingers at anyone; rather, it just seeks to make us be honest with ourselves about how our particular sin of bigotry may at times corrupt our attempts at justice in the legal system. And considering the finality of the punishment, that’s something we need to do.
The N.C. Racial Justice Act offers a practical and honest way to improve our criminal justice system, and reduce the historical and institutional effects of our particular sin of racial bias. I want to thank the legislative leaders and our governor for their honesty and moral courage in supporting the Racial Justice Act. I encourage them to continue to do so. It’s simply the right thing to do. I also want to encourage all people of faith in this area to be in prayer for how we might further seek a kind of justice that honors God and shows a love for our neighbors.
Some related posts on the North Carolina Racial Justice Act:
- Robust legislative debate over NC Racial Justice Act
- NC Racial Justice Act going to governor's desk
- NC Gov signs new racial justice act concerning capital prosecutions
- Will NC's new Racial Justice Act effectively kill the state's death penalty?
- New research suggests race of victim impacts NC death penalty administration
- NC defender officer urging that racial bias claims be brought in every capital case
- NC prosecutors bring complaints about state's Racial Justice Act to court
- State judge refuses to overturn Racial Justice Act in North Carolina
- Upcoming MSU symposium to examine North Carolina Racial Justice Act
- Talk of profound changes to North Carolina's potent Racial Justice Act
Notable review of Mississippi's early prison reform successes
Time magazine has this extended and effective new piece headlined "Why Mississippi Is Reversing Its Prison Policy." Here are excerpts:
On Monday, May 16, Chris Epps, commissioner of Mississippi's department of corrections, sat at a long conference table, grasping a mound of financial documents.... Since the mid-1990s, Mississippi has become one of America's most aggressive incarcerators — a difficult feat, in a nation of jailers. Now, Epps is leading Mississippi on an improbable shift: dismantling the prison system. "We've got all these needs" — education, health care — "and spending all this money on corrections," Epps says. "We've got to decide who we're mad with, and who we're afraid of."
Incarceration has been America's primary weapon in the war on crime.... In 1980, according to the Sentencing Project, a Washington-based advocacy group, an estimated 41,000 people were in prison or jail for drug offenses, and by 2003, that population had grown to nearly a half-million. Now, some 2.3 million people — about 1 in every 100 U.S. adults — are incarcerated....
Nevertheless, the incarceration boom appears to be reversing. Between 2008 and 2009, state prison populations fell slightly, by 0.3%, to 1.4 million, the first such decline since the 70s. There are several reasons for the shift. The first is money. The Great Recession decimated state coffers, and is forcing governments to acknowledge they can no longer afford spending $52 billion a year locking people up. The second reason is demographics: people between 15 and 34 — prime ages for criminal activity — account for about 27% of the American population, compared to about 32% in 1990, near the violent-crime wave's peak....
Epps, who declines to identify his political affiliation — "the lord is our boss, regardless of what party he or she is in" — was a senior department official in 1995, when Mississippi's legislature caught the "truth-in-sentencing" wave sweeping the country. The legislature didn't just follow other states in requiring people convicted of violent crime to serve 85% of a sentence before becoming eligible for parole. Mississippi went one step further. It required all offenders, regardless of conviction, to complete the bulk of their sentence. Previously, the state's inmates could receive parole after serving one-quarter of their sentence, and most served about half. So Mississippi ordered nearly 6,000 new prison beds, backed by billions in Clinton Administration funding for "truth-in-sentencing" policies intended to break the cycle of violence.
Between 1997 and 1999, Mississippi opened seven prisons, some private.... Soon, Epps recalls, Mississippi's prisons and jails became so overcrowded that local sheriffs allowed inmates to sleep in their offices, and forced them out in the morning. "That's how bad it was," Epps says....
By 2008, Mississippi's prison population had more than doubled to 22,646, and the corrections budget had nearly tripled to $348 million. Mississippi had the second-highest incarceration rate in America and was on track to add 5,000 prison beds in the next decade. "I knew it was going to be a problem, that it was going to explode," Epps says, sitting in a conference room near the state's capitol, thumbing through a timeline of the spiraling costs. "We kept rolling along. But it was too late."
The turning point came in 2008. By summer, the Great Recession was in full effect, and Mississippi, already one of the nation's poorest states, was ailing. Governor Barbour opened his second term unapologetically preaching austerity: "Our duty is to live within our means." Department heads typically plead for more money. But Epps, sensing the moment, told the legislature: "If we keep putting the nonviolent in prison, there won't be any room for the violent." The legislature moved to allow nonviolent offenders to become eligible for parole, and the following year made people convicted of selling certain controlled substances eligible for house arrest. "The rationale was: we still want to be tough on crime, but we had to get this budget down," he says.
Now, Epps is pushing Mississippi toward several alternatives. The state is testing a global-positioning device that costs about $13 a day per convict to keep tabs on an individual — far less than the $41.74 cost to house and feed a prisoner. "We're still monitoring you, which is probably better than in some of my facilities," he says. Elderly and terminally ill inmates are being released to their families, or hospices, saving nearly $5 million.
He expects the number of people placed on house arrest to increase — as soon as Mississippi's wireless commission, which he chairs, expands Internet access to rural areas. In the coming months, he will push legislation to expand inmates' eligibility for parole — potentially lowering the prison population by 19%, to 17,000, within two years. Projected savings: $52 million. "We can't spend enough on education," he says, "and that's a direct correlation to the number of people coming to me."
Since 2008, Mississippi has trimmed its corrections budget by about 5%, to $332 million. Reducing the prison population hasn't caused the state's violent crime rate to rise. In fact, the rate falling toward 1970s levels, and the state's recidivism rate has decreased to 30% in the last four years — well below the national average.
Mississippi's effort is being closely followed by other states. Ohio's Senate, for instance, is considering a potentially sweeping overhaul of the state's corrections system. There is, of course, the risk that the' inability of states to invest in rehabilitation programs for ex-offenders reentering a society that still bars them from jobs and housing will ultimately cause crime, and recidivism rates, to rise. Nevertheless, Epps believes his reforms will ultimately pay-off. "I'm proud to say we're moving Mississippi into the 21st century."
June 10, 2011
"Police Investigate Weiner's Messages to Teenage Girl in Delaware"
The title of this post is the headline of this new exclusive FoxNews report, which gets started this way:
Police here are investigating direct online communications between New York Rep. Anthony Weiner and a 17-year-old girl and are looking for any other young women who may be involved, though the nature of the communications wasn't immediately clear.
The police probe comes as Weiner, who is married, fends off calls from both sides of the aisle in Congress for him to quit after he admitted to lying about his inappropriate online and phone communications with a half dozen women. Weiner's interactions with the Delaware girl "were neither explicit nor indecent," Weiner spokeswoman Risa Heller said Friday night.
Two officers from the New Castle County Police Department arrived at the high school junior's home around 4:30 p.m. Friday and asked to speak with the girl's mother about the daughter's contact with Weiner, the disgraced Democrat. Another officer appeared at the home a short time later. A FoxNews.com reporter was at the home when the police arrived.
The girl, whose name is being withheld because she is a minor, told FoxNews.com, "I'm doing OK." The police left the home after about 30 minutes, followed by the daughter and mother, who left in a separate car. It was not clear if the mother and daughter were going to continue the conversation with police at another location.
Sources close the student said the girl followed Weiner on Twitter after seeing him speak during a school trip to Washington on April 1. Weiner, after signing on to follow the girl's Twitter feed, direct-messaged the girl on April 13, the sources said, though it is not clear what other communication the two may have had between or after those dates. Weiner no longer follows the girl on Twitter.
If Anthony Weiner in fact "sexted" in any signifcant way a teenager, his legal troubles may soon become even more significant than his political troubles. And, as a political matter, I think it cannot be too good for Weiner that he is started to seem like the Tiger Woods of Twitter, if you know what I mean.
Recent related post:
"The Slow, Sad Swoon of the Sentencing Suggestions"
The title of this post is the title of this notable new article by (frequent SL&P commentor) William Otis appearing in the June 2011 issue of the Federalist Society's Engage publication. Here is how the piece starts and ends:
The Guidelines are a lost cause. When they became optional after Booker, the Sentencing Commission lost the central purpose for which Congress established it. Yet each year it spends more money making suggestions district courts now follow only little more than half the time. It's time for the Commission to go, and for Congress to re-write the Sentencing Reform Act....
With apologies to Justice Scalia’s Booker dissent, the Commission has assumed all the value of a cookbook listing advisory-only ingredients, but telling the chef to remember that, in the end, he can use pretty much whatever pops into his head. As the Supreme Court reminded us in Nelson, we are now so far down Booker’s path that district judges cannot so much as presume a Guidelines sentence is reasonable, much less correct, and still less binding.
By its incomprehensibly nonchalant attitude toward restoring the determinate sentencing system it was created to produce, the Commission became an anachronism the day Booker was decided. In the era of desperately needed government frugality, taxpayers shouldn’t have to continue to shell out millions for sentencing suggestions.
I strongly disagree with Bill's basic premise that the US Sentencing Commission is an anachronism in our world of advisory guidelines after Booker. In addition to within-guideline sentence still being imposed in 55% of all cases — which was over 45,000 sentencing in Fiscal Year 2010! — the guidelines remain as a central benchmark in the other 45% of the cases (among which a below-guideline sentence is most often urged by a prosecutor to reward cooperation or a super-quick plea). In other words, even six+ years after Booker, the now-advisory guidelines still control sentencing outcomes in most federal criminal cases and still significantly impact sentencing outcomes in all federal cases. Suggesting the the guidelines and the agency that controls them are no longer that important just does not jibe with enduring federal sentencing realities.
That said, I strongly agree with a broader theme in Bill's piece here that both the Sentencing Commission's work and the Sentencing Reform Act's terms ought to be subject to significant post-Booker changes. I especially like this passage/suggestion in this piece:
[I]if the Sentencing Commission is to remain in operation (see subsequent discussion), it should forthwith require of itself a crime-and-cost impact statement setting forth a line-by-line estimate of the real-world consequences any new guideline or policy statement is likely to produce.
It’s too obvious for argument that a government agency, before taking action, ought to understand, as well as disclose to the citizens, what effects its proposals are likely to have on them. For years the law has required environmental impact statements for proposed construction projects, and there is no reason the same principle should not be applied to proposed changes in sentencing. The human environment counts, too.
In particular, the Commission will have to refine and expand its present incarceration estimates. If the Commission proposes a change likely to result in higher sentences, it should study how many more years of imprisonment, in the aggregate, this change would produce and tell the public what it’s going to cost; the day has passed when the taxpayers can foot the bill for every change, even if seemingly desirable. Similarly, if the Commission proposes a change likely to result in lower sentences (e.g., its recent crack/powder equalization proposal, discussed subsequently), it should produce an estimate of the impact of the resulting additional crime.
Sounds good to me, especially if/when the USSC would put all its analysis on its website for others to see, consider, assess and debate.
June 10, 2011 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack
"California To Release All Prisoners Who Seem Nice Enough"
The title of this post is the amusing headline of this piece at The Onion which explains what might well be part of California's plan to deal with the Supreme Court's ruling in Plata. Here is more:
In an effort to reduce prison populations throughout the state, California governor Jerry Brown announced today that he would release all inmates who seemed as though they were nice enough people.
“The goal of this new initiative is to gather a rough first impression of whether or not a prisoner is a decent-enough-seeming person, and to release him or her back into society based solely on that general gut reaction," said Brown, adding that prison authorities would spend an estimated 12 minutes with each inmate to chat about “this and that” and decide whether or not a prisoner seemed like the friendly sort. "Obviously, some might try to take a swing at the warden in the beginning, but if they calm down from there and maybe smile a few times, they’re probably fine."
At press time, officials at San Quentin State Prison had determined that inmate Vincente “Lobo” Díaz came across as slightly eccentric, granted, but basically likable.
Some prior amusing sentencing-related pieces from The Onion:
- "Lethal Injection Ban Leads To Rise In Back-Alley Lethal Injections"
- "Supreme Court Reaches Landmark 'It Depends' Ruling"
Washington Post editorial urges full retroactivity for new lower crack guidelines
The Washington Post has this new editorial headlined "A step backward in crack cocaine sentencing," which criticized the Justice Department for advocating limits on which past offenders get the benefits of the new lower federal sentencing guidelines for crack. Here are excerpts:
The U.S. Sentencing Commission has been tasked with developing sentencing guidelines for the new crack law and last week took up the issue of whether the reduced penalties may be applied retroactively. The Justice Department endorsed retroactivity but argued that crack offenders who had been convicted of a gun charge and those with longer criminal histories should not be allowed to seek lower sentences. While we appreciate the department’s legitimate public safety concerns, we do not believe this approach is warranted.
The most important reason to set aside the Justice Department’s approach is fairness. The old crack laws were draconian — and that is true whether they were applied to a first-time offender or to someone who also was found to be in possession of a weapon.
Concerns over public safety can be — and have been — addressed through other means. The most serious criminals and those deemed violent “career” offenders are not among the 13,000 or so inmates eligible for a potential sentence reduction. Moreover, no sentence could be reduced until a judge evaluates an inmate’s record and signs off on the reduction. The judge would have the authority to reduce only the penalties associated with the crack violations; penalties for other offenses, including gun infractions, would remain intact.
Federal judges have a good record in making such judgment calls. Judges rejected some 36 percent of requests for reduced sentences after the commission tweaked the crack guidelines in 2007 and permitted retroactive reductions. The commission recently documented that those who were released after their sentences were shortened recorded recidivism rates that were slightly lower than typical. Those with longer records or gun convictions were not automatically excluded from consideration, and they shouldn’t be this time around, either.
Recent related posts:
- USSC request comments on possible retroactivity of new crack and drug guidelines
- Revised data from USSC concerning potential impact of FSA guideline retroactivity
- Lots of news as AG Holder say to USSC lower FSA crack guidelines should be retroactive
- Lamar Smith's (deeply misguided) statement about crack retroactivity debate
- Informed criticisms of Justice Department's proposed limitation on crack retroactivity
Nevada Gov Sandoval vetoes bill to study cost of the death penalty
I am disappointed, but not entirely surprised, to read this local story about a decision by Nevada's Governor to veto a bill that would have authroized a study of the state's death penalty costs. Here are the details:
Gov. Brian Sandoval has vetoed a bill that called for a study of the cost of the death penalty in Nevada. Assembly Bill 501 was sponsored by the Assembly Committee on Legislative Operations and Election and called for the legislative auditor to examine the costs of capital cases compared to non-death penalty cases.
“This bill lacks the specificity necessary to persuade me that the outcome of the audit performed will be fair,” he said in his veto message. There hasn’t been an execution in Nevada since April 2006. Some murderers have been sitting on death row for more than 20 years due to appeals.
The bill was approved by the Assembly 28-14 and by the Senate 11-10. The vote was along party lines with Republicans opposing the study. The study would have included pre-trial, trial and appeal costs, plus how much it costs to keep an inmate on death row at the state prison in Ely.
The governor said, “The bill, for example, lists the costs to be assessed in determining the overall fiscal impact of the imposition of the death penalty, but it does not specify how it is these costs will be assessed.”
Sandoval also said the audit doesn't reflect the choices by individuals on death row in pursuing appeals. “Thus, because the bill fails to assure me that the outcome of the audit will be reliable and fair, I veto it,” the governor said.
I can understand Governor Sandoval's concern that any study of death penalty costs will be imperfect and maybe even "unfair" (whatever that means in this context). But the fact that the study could be flawed seems to me to be a poor reason not block such a study effort entirely. I would bet that Sandoval's concerns could be address through a revised bill, though I suspect Sandoval and others who may be disinclined to have attention given to what Nevada's death penalty really costs economically will not start work on a revised death penalty study bill.
June 9, 2011
"Ohio man gets 13 years in abortion-gunpoint case"
The title of this post is the headline of this effective AP report on a high-profile state sentencing case. Here are the details:
An Ohio man charged under a fetal homicide law has been sentenced to 13 years in prison for taking his pregnant girlfriend to an abortion clinic at gunpoint.
Prosecutors in Columbus argued that 28-year-old Dominic Holt-Reid lacked remorse. A judge sentenced Holt-Reid on Thursday to five years for attempted murder, five years for abduction and three years for a gun being involved....
The judge rejected arguments from a defense attorney that Holt-Reid was guilty of much less serious domestic violence charges, such as aggravated menacing and coercion, and should have received a lighter sentence.
Prosecutors brought their case using a 1996 law that says a person can be found guilty of murder for causing the unlawful termination of a pregnancy. The girlfriend has since delivered a healthy baby.
Dominic Holt-Reid, 28, pleaded guilty in April to attempted murder, weapons and abduction counts after police say he pulled a gun Oct. 6 on girlfriend Yolanda Burgess and forced her to drive to the clinic.
Burgess, who was who was three months pregnant and 26 years old at the time, did not go through with the procedure but instead passed a note to a clinic employee, who called police. She has since delivered a healthy baby....
The Ohio fetal homicide law and statues like it in other states have typically been used to win convictions in car crashes in which a pregnant woman died and in cases involving attacks on expectant mothers. Legal experts have said they were unfamiliar with such a law being cited in a case similar to Holt-Reid's. [The local DA] said he was comfortable using the fetal homicide statute against Holt-Reid, because Holt-Reid's intention was to end Burgess' pregnancy.
If nothing else, ACCA merits credit for creating interesting coalitions of Justices
As noted in this prior post, in today's Sykesruling, Justice Scalia in dissent takes some justified swipes at the Armed Career Criminal Act and the SCOTUS jurisprudence it has recently spawned. Justice Alito made some similar points in a prior ACCA opinion, and I do not think anyone can be truly pleased or satisfied by the practical realities of modern ACCA jurisprudence. But, as suggested in the title of this post, ACCA merits a little love from SCOTUS watchers for its ability to generate distinct (and telling?) coalitions of Justices.
Today's Sykes ruling, in particular, has lots of notable SCOTUS personnel stories. Consider first the opinion for the Court authored by Justice Kennedy which is joined by Chief Justice Roberts and Justices Alito, Breyer and Sotomayor. I cannot think of any other cases in which this particular fivesome came together on an distinct opinion. Then we get a concurrence by Justice Thomas, which I find more appealing than even the Court's opinion, and yet he has no fellow-travelers. Then there is the Scalia dissent, which is also quite appealling, but also gets no other votes. Finally, Justice Kagan has penned her own (first criminal justice) dissent, and manages to have Justice Ginsburg along for the ride.
Lots could and should be said about this break-down, but two particular highlights seem especially worth emphasis: (1) among the two new Obama appointees, Justice Kagan may over time prove to be even more skeptical of prosecutorial claims than (former state prosecutor) Justice Sotomayor, (2) among all the current justices, Justice Scalia may be most willing and eager to assail the work of Congress and his fellow Justices on a range of federal criminal law issues.
Some related recent and older posts on Sykes and the Justices' sentencing work:
- SCOTUS gives wins to the prosecution in DePierre and Sykes
- Justice Scalia advocates radical(?) and justified(?) judicial activism to deal with vague ACCA provision
- Justices Kennedy, Alito, and Sotomayor and the future of the SCOTUS docket and sentencing jurisprudence
- A SCOTUS day for criminal procedure, lots of federal sentencing opinions to come in June
- Should we thank new Justices Alito and Sotomayor for all the big criminal law SCOTUS action?
- Noting Justice Alito's lack of empathy for criminal defendants
- It's a bird! It's a plane! ... No it's Sotomayor!!!
- Notable background parallels between Judge Sotomayor and Justice Alito
UPDATE: John Thacker in the comments astutely notes that this gang of five came together in Michigan v. Bryant, the recent Confrontation Clause case, and he further expresses concern that "we may have a new 5 member 'law and order' 'pragmatist' majority, to overturn Ring, Blakely, Booker, Arizona v. Gant, Melendez-Diaz, most of which were Scalia, Thomas, Ginsburg, Souter, Stevens."
I think John's concerns are a bit premature in some respects, as Chief Justice Roberts has had a pro-defendant voting history in the Apprendi-Blakely recent cases as evidenced by his votes in Cunningham and Ice. I also suspect stare decisis realities may prevent this "law and order pragmatist" gang of five from actually overturning many (or any) of the recent pro-defendant constitutional rulings. But it is probably still appropriate at this moment to suggest that, at least in some settings, the replacement of Justices Souter and Stevens with Justices Kagan and Sotomayor may have made the overall Court a bit more pro-government in criminal justice cases.
"U.S. can't justify its drug war spending, reports say"
The title of this post is the headline of this new piece from the Los Angeles Times, which starts this way:
As drug cartels wreak murderous havoc from Mexico to Panama, the Obama administration is unable to show that the billions of dollars spent in the war on drugs have significantly stemmed the flow of illegal narcotics into the United States, according to two government reports and outside experts.
The reports specifically criticize the government's growing use of U.S. contractors, which were paid more than $3 billion to train local prosecutors and police, help eradicate fields of coca, operate surveillance equipment and otherwise battle the widening drug trade in Latin America over the last five years.
"We are wasting tax dollars and throwing money at a problem without even knowing what we are getting in return," said Sen. Claire McCaskill (D-Mo.), who chairs the Senate subcommittee that wrote one of the reports, which was released Wednesday. "I think we have wasted our money hugely," agreed Bruce Bagley, who studies U.S. counter-narcotics efforts and chairs international studies at the University of Miami at Coral Gables, Fla. "The effort has had corrosive effects on every country it has touched."
Obama administration officials strongly deny that U.S. efforts have failed to reduce drug production or smuggling in Latin America. White House officials say the expanding U.S. counter-narcotics effort occupies a growing portion of time for President Obama's national security team even though it garners few headlines or congressional hearings in Washington.
Recent related posts:
- Big international report calling global drug war a failure
- Commemorating the "War on Drugs" as it begins its fifth decade
Justice Scalia advocates radical(?) and justified(?) judicial activism to deal with vague ACCA provision
There are many interest elements to the Supreme Court's work today on the Armed Career Criminal Act in Sykes (opinion here). But, as is often the case, the most notable and quotable part of this statutory sentencing ruling comes from Justice Scalia. In particular, consider how he starts and ends his Sykes dissent:
As the Court's opinion acknowledges, this case is “another in a series,” ante, at 1. More specifically, it is an attempt to clarify, for the fourth time since 2007, what distinguishes “violent felonies” under the residual clause of the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2)(B)(ii), from other crimes. See James v. United States, 550 U. S. 192 (2007); Begay v. United States, 553 U. S. 137 (2008); Chambers v. United States, 555 U. S. 122 (2009). We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports.
As was perhaps predictable, instead of producing a clarification of the Delphic residual clause, today’s opinion produces a fourth ad hoc judgment that will sow further confusion. Insanity, it has been said, is doing the same thing over and over again, but expecting different results. Four times is enough. We should admit that ACCA’s residual provision is a drafting failure and declare it void for vagueness. See Kolender v. Lawson, 461 U. S. 352, 357 (1983)....
We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nittygritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step — indeed, I think it would be highly responsible — to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent.
As the title to this post suggests, I do think it would be a pretty "radical step" to simply lop off the residual clause of ACCA because the courts are struggling to give it clear content. By the same token, however, I do think such a form of judicial activism would be justifiable for many of the reasons Justice Scalia suggests. I wonder if readers have the same reaction to both ACCA and Justice Scalia's proposed statutory deletion due to its vagueness.
SCOTUS gives wins to the prosecution in DePierre and Sykes
The Supreme Court handed down two more of its pending sentencing cases this morning, and here are the early reports from the helpful live-blogging folks at SCOTUSblog:
The Court in DePierre holds that cocaine base is not just crack by cocaine in its chemical form. Here is a link to the opinion in DePierre.
Justice Sotomayor writes for a unanimous Court. Justice Scalia doesn't join a discussion of legislative history.... So the Court holds that the mandatory minimum sentences for cocaine base aren't limited to crack cases. The government wins....
Kennedy writes for a 6-3 majority in Sykes. The opinion in Sykes v. United States is here. Scalia dissents, and the Kagan separately dissents joined by Ginsburg. The Court holds that "felony vehicle flight" is a violent felony under the Armed Career Criminal Act.
Justice Thomas has a lengthy concurrence, arguing against the Court's application of the test announced by the Court in a case called Begay.... Justice Scalia: "We try to include an ACCA residual-clause case in about every second or third volume of hte United States Reports."
Based on these brief descriptions, it seems DePierre is a snooze and Sykes is real juicy. Commentary on both will follow as appropriate.
June 8, 2011
"Short jail sentence preferable to community service, say prisoners"
The title of this post is the headline of this notable article from The Guardian, which reports on an interesting and important research report coming from the UK. Here are the details:
Prisoners prefer to do a short stretch behind bars than complete a community sentence because they consider it less of a punishment, according to research by prison governors and penal reformers.
The majority of prisoners said they found short jail terms meant little to do and long periods in their cells. Many were demotivated by long waiting lists for courses and limited job opportunities in prison. But the research, commissioned by the Prison Governors' Association (PGA) and the Howard League for Penal Reform showed many offenders felt a short prison sentence was easier to complete than a community sentence, which some considered more of a punishment.
The study, carried out by Dr Julie Trebilcock of Imperial College London, was based on 44 interviews with inmates serving 12 months or under at three different prisons, and 25 interviews with staff. The staff interviews revealed many to be upset at the damaging impact of short sentences on prisoners' lives, especially where they had lost homes or jobs and when it had led to family breakdown.
The report, No Winners: the reality of short term prison sentences, says there are two distinct groups of prisoners -- the first-timers and the revolving-door prisoners -- who have distinct attitudes and needs while inside....
The study concludes: "Some highlighted that it was hard to comply with community sentences because they had to manage their day-to-day lives and the factors that had often led them to offend (most commonly drug use). Some also stated that they had previously had poor relationships with probation officers and that it was too easy to be breached on a community sentence. This led many prisoners to state a preference for a short-prison sentence over a community sentence on the basis that they are easier to complete."
Frances Crook, of the Howard League, said the study underlined that community penalties sought to change behaviour, while overcrowded prisons were failing to offer lasting solutions to crime. Eoin McLennan-Murray, PGA president, said the study made a convincing case, "which argues at best for the abolition of short prison sentences and at worst for a dramatic reduction in their use".
A press release with the reoprt and a link to its executive summary can be found at this webpage.
Mid-week three-fer from the circuits on federal sentencing procedural intricacies
For all big fans of intricate questions involving federal sentencing procedures — and, really, who isn't a big fans of intricate questions involving federal sentencing procedures — I have already noticed three blog-worthy opinions from the federal circuits this week:
From the Fifth Circuit, US v. Harper, No. 10-30643 (5th Cir. June 6, 2011) (available here), involves a sentence reversed because prosecutors violated their plea agreement to establish drug quantity.
From the Sixth Circuit, US v. Talyor, No. 09-1961 (6th Cir. June 7, 2011) (available here), involves a sentence reversed primarily to give effect to the Pepper ruling.
From the Ninth Circuit, US v. Gonzalez-Aparicio, No. 09-10447 (9th Cir. June 8, 2011) (available here), involves a sentence affirmed, over a strong dissent, based on plain-error review concerning whether statutory rape qualifies as a crime of violence.
"Kasich commutes convicted killer's sentence to life without parole"
The title of this post is the headline of this breaking news from the Columbus Dispatch:
Convicted killer Shawn Hawkins will not be executed because details of his role in the double slaying are "frustratingly unclear," Gov. John Kasich said today in commuting his death sentence to life without parole.
In his clemency statement, Kasich said there is "no doubt that the defendant played a significant, material role in this heinous crime, but precise details of that role are frustratingly unclear to the point that Ohio shouldn't deliver the ultimate penalty in this case. "Therefore, I am ordering that he spend the rest of his life in prison and have no chance of ever getting out. As someone who has experienced sudden and tragic loss, I know the pain that comes with losing loved ones. My prayers go out to the families of Diamond Marteen and Terrence Richard in the hope that they may find peace."
Hawkins' attorney Anthony G. Covatta issued a statement thanking Kasich for his "merciful decision."...
It was the first time since taking office in January that the Republican governor used his gubernatorial clemency power to stop an execution; he previously allowed four killers to be put to death.
Hawkins, 42, of Cincinnati, was scheduled to be executed Tuesday for killing Richard, 18, and Marteen, 19, in a drug deal gone bad. The two men were found shot to death in a car in Mt. Healthy, a Cincinnati suburb, on the morning of June 12, 1989.
Hawkins' case presented Kasich with a dilemma, compounded by the Ohio Parole Board's unanimous recommendation favoring clemency. "The board is not confident in the death sentence in this case, but is also not convinced that Shawn Hawkins is innocent," the board said in its May 12 ruling. The board said Hawkins was "clearly involved" in the drug deal and the murders, but that aspects of his conviction are "troubling."
Supporters claim there is no indisputable evidence that Hawkins killed Richard and Marteen after they negotiated a deal to purchase a pound of marijuana for $1,400. Hawkins claimed that he could not reach his supplier and the drug deal never happened. The two young men were each shot twice in the head with a .25-caliber handgun....
Hamilton County Prosecutor Joseph T. Deters vigorously disputed Hawkins' innocence claim, calling it "total nonsense." He said the murder conviction and sentence was reviewed and upheld by 33 judges. He dispatched two staff members last week to meet with Kasich's legal team. However, Deters said he would abide by the governor's decision.
Recent related posts:
- Uncertainty prompts Ohio Parole Board to make unanimous recommendation to commute death sentence
- With execution date looming, how will Ohio's new governor deal with innocence-based clemency recommendation?
"Predators and Punishment"
The title of this post is the title of this new piece by Steven Erickson and Michael Vitacco, which is forthcoming in Psychology, Public Policy and Law and is now available via SSRN. Here is the abstract:
Psychopathy is characterized as an emotional disorder tightly woven with persistent antisocial behavior. Prevailing legal doctrine and social norms hold psychopaths responsible for their conduct and punishment legitimately flows to psychopaths who violate the law. Recent scholarship, however, has challenged that view by claiming the emotional and cognitive deficits inherent in psychopathy should preclude culpability for some psychopaths. This view necessarily imposes a substantial modification on how the law conceptualizes culpability that is ultimately unwise. Legal responsibility entails the capacity for rationality and psychopaths comport with the established meanings of rationality as understood by the law and the communal intuitions which guide it. Extant scholarship indicates psychopaths are rationale agents and can be fairly subjected to punishment for conduct which violates the law. The law should reject efforts to include psychopaths within its excuse jurisprudence.
Should Conrad Black's lord-like prison behavior impact his resentencing?
The question in the title of this post is prompted by this notable new Chicago Tribune piece headlined "Affidavits: Conrad Black lorded over captive audience in prison." Here are the details:
Conrad Black liked to be addressed as "Lord Black" after he was granted a seat in the British House of Lords. He may have thought the privileges of nobility extended to prison. Two workers at the Florida federal prison where Black was an inmate say he lorded over other inmates, making them perform menial tasks for him, such as ironing his clothes....
Their observations were included in affidavits the U.S. attorney's office in Chicago recently filed ahead of Black's scheduled resentencing June 24 on his two remaining convictions.... Federal prosecutors would like to send Black back to prison to complete the 6 1/2-year sentence he received in 2007 for defrauding investors and obstructing justice. Black was freed on bail last year while he appealed his conviction after serving about 29 months. Two of his fraud convictions were vacated.
Black's attorneys have advocated that his time served is a sufficient sentence for the remaining crimes. In petitioning that Black not be returned to prison, his attorneys described him as a model inmate who tutored other prisoners who were preparing for their General Educational Development tests and volunteered to teach them American history and social economics.
The U.S. attorney's office said Black's characterization of his time behind bars was not entirely accurate. In one of the affidavits, a unit manager at the prison said Black had an entourage of inmates "who performed services for him, acting like servants."
A prison education specialist who supervised Black as a tutor said he was an uninterested instructor. "He projected the attitude that he was better than others in the class, both faculty and students." She added that some inmates saluted Black each day in class.
Black's attorneys denied the government's portrayal of his prison conduct and said they will present a "full and accurate" picture of his activities later this month in court.
The Supreme Court's Pepper ruling earlier this year makes plain that Black's post-sentencing prison behavior can be considered among the 3553(a) factors at his resentencing. But Pepper does not solve the harder question of exactly when and how post-sentencing behavior in prison should impact a resentencing, especially when there are conflicting stories about just what kind of inmate a defendant has been.
In the Black case, I doubt the dueling assertions about Conrads Black's prison behavior will have much of an impact on his resentencing. But maybe others think a sentencing judge ought to find this kind of information especially important in this kind of case.
"Lundbeck 'Horrified' at Drug Execution Use"
The title of this post is the headline of this new piece from the Wall Street Journal, which gets started this way:
Danish pharmaceutical company Lundbeck A/S said Wednesday it's urgently seeking ways to stop prisons in the U.S. from using one of its epilepsy drugs being used for executions. The company's Nembutal medicine, designed to treat epileptic seizures, is increasingly being used in prison executions in the U.S. even though it wasn't meant for that purpose.
"We are horrified at this fact and are looking at ways to prevent prisons from getting this drug, including tougher conditions on distribution," Lundbeck spokesman Mads Kronborg said Wednesday. The drug, acquired when the Danish company bought U.S.-based firm Ovation in 2009, is of no strategic importance to Lundbeck and represents less than 1% of the Danish drug maker's overall sales.
"At first we considered stopping production of this product but there is a medical need for it and hospitals pleaded with us not to cut off the supply. It is the mother of all dilemmas for us," Mr. Kronborg said.
Generically known as pentobarbital, the drug was designed to treat epileptic seizures, and is also sometimes used to euthanize animals. Oklahoma, Texas and Ohio are among the eleven states that have acquired supplies of the drug for use in executions.
Lundbeck's Chief Executive Ulf Wiinberg is weighing a number of options to cut off supplies of the drug to prisons, including switching to specialist wholesalers and "end user clauses".
"When we first learned of this misuse of our drug we went public and protested strongly to the relevant prison governors and state politicians," Mr. Wiinberg said in an interview Wednesday. "When it comes to distribution, we are exploring different ways to ensure that the drug is used as intended and there are several options you can consider—we haven't finalized the plan yet but I'm hoping we'll have one fairly soon." He said the Danish State is also trying to help. Like most European countries, Denmark opposes capital punishment.
Interesting sentencing doings and debates across the pond
As detailed in this effective piece from The Guardian, there are new and notable political and legal developments and debats concerning sentencing law and policy in England. The piece is headlined "Cameron shelves key parts of Clarke's prison sentencing reforms; Government to rethink justice secretary's plan to give offenders 50% reduction in jail terms in return for early guilty pleas." Here are excerpts:
David Cameron has ditched controversial plans to introduce a 50% sentencing discount for an early guilty plea after holding talks with the justice secretary, Kenneth Clarke, on Tuesday.
It has not yet been decided whether the change will apply to all cases or only the most serious. Downing Street denied Clarke had been summoned to a meeting by the prime minister or that he had in any way been ordered to carry out a U-turn.
The leak of the meeting has irritated Cameron, who is likely to be uneasy about suggestions that he is conducting a series of policy switches under pressure either from the rightwing media or his Liberal Democrat coalition colleagues.
Officials stressed that the sentencing discount had only been in a discussion paper and was not firm policy. But only at the weekend, justice ministers had been defending the plan, pointing out that it would save the government substantial sums....
The prime minister's spokesman stressed that proposals to cut the prison population by reducing the numbers on drugs offences, the number of foreign prisoners and the number of reoffenders, remained.
Clarke had originally postponed an announcement on his sentencing plans until after the Whitsun break. The home secretary, Theresa May, confirmed on Wednesday that this announcement had now been postponed again, and the publication of a sentencing and legal aid bill delayed for a matter of weeks.
Downing Street is also believed to have insisted that ministers look again at a plan to restore a judge's discretion in imposing indeterminate sentences for public protection, which have been a major factor behind the increase in the prison population in England and Wales.
Cameron is due to make a major speech on crime either later this week or early next, and preparations for that speech that are believed to have prompted the meeting with Clarke.
The sentencing package as a whole would save £130m by reducing demand for prison places. Work to establish the impact of excluding more serious offences, including rape and attempted murder from the discount plans, is believed to be ongoing. The problem for Clarke is that the discount plan is a major part of his drive to stabilise the record 85,000 prison population in England and Wales.
Justice ministry estimates show that 3,400 of the 6,000 fewer prison places that will be needed as a result of his sentencing package will come from the plan to increase the maximum available sentence discount from 33% to 50%. In practice, the MoJ estimates that the average actual discount in sentences for early guilty pleas would increase from 25% to 34%....
Clarke came under pressure from Downing Street last month to clarify his claims that some rapes were more "serious" than others amid Labour calls for his resignation. The justice secretary was later forced to make a public declaration that he regarded "all rape as a serious crime".... Clarke's plans have caused jitters among some Conservatives, who fear they undermine Tory claims to be the party of law and order.
Juliet Lyon, the director of the Prison Reform Trust, told the BBC Radio 4 Today programme that Clarke's plans presented a "coherent blueprint for reform" and should be allowed to go ahead.
June 7, 2011
Some family members of Ohio mass murderer victims want plea deal, not death penalty, for "closure"
As detailed in this new AP story, a high-profile mass murder case in Ohio has today prompted a high-profile plea for a plea deal from family members of the murder victims. The piece is headlined "Relatives of Cleveland victims seek plea deal in Sowell case," and here are excerpts:
Some relatives of 11 women allegedly killed by a man on trial are seeking a plea deal to spare the emotional ordeal of seeing the "horrors" play out in court, two attorneys representing families said today.
The attorneys said relatives of at least six victims have signed an appeal asking Cuyahoga County Prosecutor Bill Mason to strike a deal in the case against Anthony Sowell, 51. "They are concerned about the emotional trauma that the trial is going to cause on their families," Christine LaSalvia said.
"They are really just looking for closure. And I think, just as a way of avoiding reliving what happened and the horrors of what happened, they would prefer not to go through the trial." Her law partner, Jeffrey Friedman, said prosecutors should consider the feelings of family members when deciding whether to strike a last-minute deal. "The victims' families' feelings should be taken into consideration," he said.
Mason said Friday he was determined to get the death penalty. A plea deal likely would mean sparing Sowell's life in return for a guilty plea.
Friedman said a life sentence without parole would be similar to a conviction, death sentence and Sowell dying in prison awaiting the outcome of many years of appeals. Mason's office didn't immediately respond to a request for renewed comment today....
The families' appeal for a plea deal was first reported by WEWS-TV, which said the signed petitions would be delivered to Mason's office. LaSalvia said the number of signatures and delivery schedule were "a work in progress."
Jury selection entered the second day today for Sowell, who has pleaded not guilty. The trial is expected to last several weeks. Prosecutors say Sowell lured women from his inner-city Cleveland neighborhood into his home with the promise of alcohol or drugs, then killed them. The women disappeared one by one, starting in October 2007. The last one vanished in September 2009.
June 7, 2011 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack
California reports on its prison population plans after Plata
As detailed in this new AP piece, "Gov. Jerry Brown's administration responded Tuesday to a U.S. Supreme Court order to quickly slash California's prison population, saying the governor's stalled plan to shift thousands of inmates from state prisons to local jails will eventually address the overcrowding problem." Here is more:
The administration acknowledged in its response to the high court that it might not meet the court's initial goal of cutting the prison population by more than 10,000 inmates by the end of November. But it did not request a delay. "What we've said is we're going to move forward with this plan and we'll ask for more time if we need it," Corrections Secretary Matthew Cate said at a news conference.
The latest count shows California's 33 prisons housing 143,565 inmates in space designed for fewer than 80,000, meaning the prisons are at 180 percent of their design capacity.
In an order late last month, the Supreme Court gave California two years to remove more than 33,000 inmates after the justices ruled easing congestion is the only way to improve unconstitutionally poor inmate medical care.
The administration's response outlined all the steps the state has taken in recent years to reduce its prison population, including sending about 10,000 inmates to other states. But its compliance with the recent order hinges almost entirely on plans that Brown signed into law earlier this year to shift responsibility for thousands of lower-level inmates to counties.
The shift cannot take effect unless local governments get the money to provide jail cells and rehabilitation services, and funding for that remains stalled in the state Legislature. Republican lawmakers have blocked Brown's proposal for an extension of temporary tax increases that are set to expire by the end of the month....
The Supreme Court had indicated that it might consider a request for a delay in its order, which includes benchmarks in reducing overcrowding along the way, but Cate said it was too soon for that. "It would be irresponsible to say we're going to do nothing, go back to the same three judges and cross our fingers," Cate said.
Prior posts on the Plata ruling and responses thereto:
- In 5-4 split, SCOTUS (per Justice Kennedy) affirms California prison reduction order
- Some big-time rhetoric in big-time SCOTUS Plata prison ruling
- Has Justice Scalia started drinking Justice Breyer's "Active Liberty" Kool-Aid? Really?!?!
- Early press coverage and reactions to SCOTUS California prison ruling in Plata
- Lots and lots of interesting commentary on SCOTUS Plata prison ruling
- A simple take on Plata: Congress asked for this in the PLRA
- Is California so dysfunctional that doom and gloom is the right reaction to Plata?
- Lots more talk about Plata and its consequences a week later
- Could SCOTUS Plata ruling grease path to reform of California's tough 3-strikes law?
- "The Right Way to Shrink Prisons"
- Still more notable commentary about Plata and its prisoner release order
- "Jerry Brown says state needs more time to implement Supreme Court prison ruling"
Commemorating the "War on Drugs" as it begins its fifth decade
The ALCU's Blog of Rights is giving a bronx cheer to celebrate the 40th anniversary of the start of the modern so-called "War on Drugs" though a series of drug-war posts. Here is the introduction to the series:
June 2011 marks the 40th anniversary of President Richard Nixon's declaration of a "war on drugs" — a war that has cost roughly a trillion dollars, has produced little to no effect on the supply of or demand for drugs in the United States, and has contributed to making America the world's largest incarcerator. All month, we'll have posts dedicated to the need end the war on drugs. Check back daily for posts about the drug war, its victims and what needs to be done to restore fairness and create effective policy.
Here are links to a few of the early entries:
- The 40-Year War on Drugs: It's Not Fair, and It's Not Working
- The War on Drugs and the Surveillance Society
- Retroactivity — the Path to Fairness
Relatedly, I see from this link that the folks at LEAP have a press event scheduled next week in DC to celebrate the drug war turning 40. Here are the details from the LEAP press release:
Forty years ago President Nixon declared the "war on drugs." Marking next week's somber anniversary, a group of police officers, judges and corrections officials who support legalizing drugs will join forces to detail the ongoing failures of a war the Obama administration disingenuously claims it ended two years ago. Following a press conference, the law enforcers will attempt to hand-deliver a copy of their new report to President Obama's drug czar.
Norm Stamper, former chief of police in Seattle and a speaker for Law Enforcement Against Prohibition, said, "Since President Nixon declared 'war on drugs' four decades ago, this failed policy has led to millions of arrests, a trillion dollars spent and countless lives lost. Yet drugs today are more available than ever. President Obama's drug officials keep saying they've ended the 'drug war.' But our report shows that's just not true, and we'll be hand-delivering a copy to the drug czar in hopes he'll be convinced to actually end this war, or at least stop saying he already has."
Obama administration drug czar Gil Kerlikowske, like Stamper, is a former Seattle chief of police.
With execution date looming, how will Ohio's new governor deal with innocence-based clemency recommendation?
As detailed in this post last month, the Ohio Parole Board has unanimously recommended clemency for Shawn Hawkins, who faces execution next Tuesday based on his conviction for the 1989 murder of two men in Cincinnati. This recent Toledo Blade commentary, headlined "Uncertainty demands clemency for death-row inmate," asserts that questions about Hawkins' guilt ought to lead Ohio's Governor to follow this Board recommendation. But this recent Columbus Dispatch article about the case highlights that John Kasich may be leaning this way, while a vocal prosecutor is not:
After allowing four killers to be put to death, Gov. John Kasich faces a dilemma in the case of Shawn Hawkins, a Cincinnati man scheduled for execution on June 14.
Supporters claim Hawkins, 42, did not kill Terrence Richard and Diamond Marteen. Both men were found shot to death in a car in Mt. Healthy, a Cincinnati suburb, on the morning of June 12, 1989. Kasich himself said there is "considerable doubt" about the case.
However, Hamilton County Prosecutor Joseph T. Deters strongly disputes Hawkins' innocence claim, calling it "total nonsense." He recently dispatched two staff members to Columbus to meet with Kasich's legal team to argue that the governor should not spare Hawkins' life.
The Ohio Parole Board put pressure on Kasich with a 7-0 recommendation favoring clemency. "The board is not confident in the death sentence in this case, but is also not convinced that Shawn Hawkins is innocent," the board said in its May 12 ruling....
Hawkins' attorneys were encouraged by Kasich's recent impromptu comments to reporters about doubts regarding Hawkins case. He compounded that by adding, "We are not going to go forward with an execution where we are not certain."
Deters told The Dispatch that he respects the governor's clemency authority and will abide by his decision. However, he contends that the defense is offering "half-truths" and touting an innocence claim that's been made and rejected in the past. "Thirty-three judges have looked at this," he said. "I just want to make sure he (Kasich) has all the facts."
He also criticized the Parole Board's qualifications. "I just don't like seven lay people applying a standard of residual doubt that doesn't appear anywhere in the law." Deters argues that the seven-member Parole Board should be appointed directly by the governor, not the Department of Rehabilitation and Correction, a cabinet agency. He said he has proposed such a change to state lawmakers.
"'No Logical Stopping Point': The Consequences of Padilla v. Kentucky's Inevitable Expansion"
The title of this post is the title of this forthcoming note in the Northwestern University Law Review, which is now available via SSRN. Here is the abstract:
In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court held that criminal defense attorneys must warn their non-citizen clients of the adverse immigration consequences that may result from a guilty plea. Lower federal courts will inevitably expand the rule from Padilla to apply to other so-called "collateral consequences" of guilty pleas. Although the extension of Padilla to more (or all) collateral consequences of guilty pleas would theoretically raise the standard of defense attorney effectiveness and thus benefit criminal defendants, the reality is that the cost of extension will likely outweigh the benefits, because the provision of effective assistance will become prohibitively costly. If "Padilla warnings" are ultimately required for all collateral consequences of a guilty plea, criminal lawyers will have a difficult time effectively assisting any of their clients.
June 6, 2011
Could Representative Anthony Weiner be charged with a federal crime?
Big developments in the "Weinergate" story today, as detailed in this ABC News piece headlined "Rep. Anthony Weiner: 'The Picture Was of Me and I Sent It'." First the basics, and then more about the question in the title of this post:
Rep. Anthony Weiner of New York said today he has engaged in "several inappropriate" electronic relationships with six women over three years, and that he publicly lied about a photo of himself sent over Twitter to a college student in Seattle over a week ago. "I take full responsibility for my actions," Weiner said. "The picture was of me, and I sent it."
The announcement came as ABC News prepared to release an interview with Meagan Broussard, a 26-year-old single mother from Texas who provided dozens of photos, emails, Facebook messages and cell phone call logs that she says chronicle a sexually-charged electronic relationship with Weiner that rapidly-evolved for more than a month, starting on April 20, 2011....
Broussard's story had threatened to expose the secret online life of one of the House Democrats' most popular members, and a man many considered a leading candidate for mayor of New York City.... "I just chuckled," Broussard, a nursing student, said of her reaction to Weiner's initial response to the Twitter incident. "It would be one thing if he came out and said, 'Hey, so what?' But now he's saying he got hacked?"...
Weiner told ABC News last week that the Twitter incident was a "prank" on him, but he neither confirmed nor denied at the time that the photo depicted his body. "I am reluctant to say anything definitively about this," he said of the photo....
Broussard said she wanted to come forward now out of concerns for her own image as an aspiring nurse, and that of her 3-year-old daughter, should her identity be leaked online. More than a dozen photos sent by Broussard to firstname.lastname@example.org and a second account she believed was Weiner's were obtained and licensed from her by ABC News.
Broussard said her first contact with Weiner occurred on April 20 after she "liked" a YouTube clip of one of Weiner's speeches that had been posted to his Facebook page. She also commented -- "hottttt" -- on the link, which is still publicly visible on Weiner's page and has received hundreds of other comments from Facebook users.
Weiner "almost immediately" added Broussard as a Facebook friend through his personal profile account, she said. And she accepted his request. According to Broussard, the two immediately began messaging through Facebook chat, eventually exchanging "hundreds of messages," many of a sexual nature....
During one Facebook chat conversation, Broussard said she voiced uneasiness with the electronic relationship, to which she says Weiner replied, "you are not stalking me.... I am stalking you."...
Occasionally while chatting through Facebook, the two would simultaneously use email to exchange photos, she said. Two images Broussard received from email@example.com on May 4 and May 5 show what appears to be Weiner's face.
One, sent under the subject line "Me and the pussys," appears to show Weiner seated on a sofa in an undershirt next to cats; the other appears to depict Weiner in an office holding the white piece of paper. Both appear to have been sent via Blackbery, according to email records.
Later in the month, Broussard received three, more graphic images from the address RockOh77@yahoo. com, which she said was Weiner's online alias.
To my knowledge, "sexting" between consenting adults is not (yet?) a state or federal crime. But that is not all that Representative Anthony Weiner has done. In addition to publically and repeatedly lying about his Twitter account being hacked, he apparently also (jokingly?) indicated that he was "stalking" a woman on-line after she "voiced uneasiness with the electronic relationship." And this companion ABC News story indicates that there is talk of a congressional investigation concerning misuse of "official resources":
Minority leader Nancy Pelosi and Democratic Congressional Campaign Committee chair Steve Israel both called for an ethics committee investigation. "I am deeply disappointed and saddened about this situation; for Anthony's wife, Huma, his family, his staff and his constituents," Pelosi, D-Calif., said in a statement. "I am calling for an Ethics Committee investigation to determine whether any official resources were used or any other violation of House rules occurred."
As my recent posts here and here about the Edwards' indictment indicate, I am not eager to turn every stupid thing done by any stupid horny politician into a federal criminal case. Nevertheless, I am always eager to fully understand the breath and reach of federal criminal law, and thus I am eager to hear from knowledgeable readers as to whether some of Rep. Weiner's stupid behavior could be amount to a federal criminal offense.
In light of the Lori Drew and John Edwards and other "cutting-edge" federal prosecutions, I have come to believe (and fear) that just about any really stupid behavior on-line or by a politician could be turned into a federal criminal case by a motivated and creative federal prosecutor. "Weinergate" seems to provide a good test-case for my concerns, and thus I hope some readers might help me assess whether New York's newest high-profile sexter needs to be worrying about more than just his political career.
Donald Verrilli confirmed as new US Solicitor General
As reported in this post at The BLT, the United States now official has a new top lawyer:
Senators voted 72-16 to confirm Donald Verrilli Jr. as the next U.S. solicitor general. The vote came after senators reached an agreement to avoid a vote on a threatened filibuster, moving directly to a final confirmation vote.
Congrats to Solicitor Verrilli, and good luck with all the (seemingly never-ending) ACCA litigation you now get to enjoy in your new job.
Possible Graham sequel from Jacksonville based on 1st-degree murder charge for 12-year-old
There must be something in the water in Jacksonville, Florida that makes it a special place for the development of cutting-edge juvenile crime and punishment issues. Astute readers know that Terrance Graham, whose case led the Supreme Court last year to declare that LWOP sentence for juveniles for nonhomicide crimes violate the Eighth Amendment, hailed from Jacksonville. Now a possible Graham sequel is in the works from the same locale based on this local story headlined "Jacksonville 12-year-old charged with first-degree murder of brother." Here are some of the disturbing specifics:
Months before Jacksonville police say 12-year-old Cristian Fernandez beat his 2-year-old half brother to death, investigators started asking why the toddler's leg was broken. The family said David Galarriago had an accident while playing on a jungle gym, according to court papers.
Thursday, prosecutors say that wasn't just a lie but a warning sign about the rampant abuse that ultimately took the toddler's life and made Fernandez the youngest person in city history to be charged with first-degree murder.
"It is disturbing, but when you know you have to balance the safety of other children in the home and in the community, it is not so disturbing," State Attorney Angela Corey said after a grand jury indicted Fernandez.
With the indictment, Fernandez is being transported from a juvenile detention center to the Duval County jail although Corey said he'll be placed with the jail's juvenile inmates. He faces adult charges that already have criminal law experts wondering how well Fernandez could have understood his actions.
"Especially if it's a beating death, you could argue that the child did not have the intent to kill, which would be necessary even for second-degree murder," said Robert Batey, professor of criminal law at Stetson University College of Law. "Or that the child was not capable of the cool thinking beforehand that's implied by the notion of premeditation."
Galarriago died in March with a fractured skull, a bleeding brain and bruising to his left eye and nose, according to court documents....
Before Fernandez's indictment, the youngest person charged with a Jacksonville homicide was 13-year-old Thomas Thompson. He was convicted and sentenced to life in 1994 for shooting an off-duty corrections officer, Tammy Jo Johnson, to death in a robbery outside a Westside bar.
Christopher Slobogin, director of the criminal justice program at Vanderbilt University Law School, said many states don't even allow such a charge for children Fernandez's age. But Florida's laws allow prosecutors to "direct file" cases in criminal court for children even younger than Fernandez. "Even in Florida, kids this young are rarely prosecuted in adult court, even for crimes this serious," Slobogin said.
Slobogin pointed out that Lionel Tate was charged with first-degree murder at the same age in 1999 for the beating death of a 6-year-old girl he was baby-sitting in Broward County and received a life sentence. That conviction was overturned by an appeals court in 2004 after the panel found it wasn't clear whether Tate understood the charges.
Even in that case, Slobogin said, the first-degree murder charge was only filed after the family rejected a plea deal in juvenile court. Because of his age, Fernandez will not face the death penalty. If convicted of first-degree murder, he would be sentenced to life without parole.
June 6, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack
Effective discussion on ineffectiveness claim at heart of Martinez habeas SCOTUS grant
As noted in this post from earlier today, the Supreme Court this morning granted cert on a potentially important state habeas case, Martinez v. Ryan. Nancy King has this great post explaining the basics and the backstory of the grant in Martinez at her habeasbook.com blog. Here are excerpts:
In Martinez v. Ryan, No. 10-1001, the Supreme Court today agreed to consider the following question: ”Does a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a state-law right to raise such a claim in a first post-conviction proceeding, have a federal constitutional right to effective assistance of first post-conviction counsel specifically with respect to his ineffective-assistance-of-trial-counsel claim?”...
The Ninth Circuit opinion [below (available here) ruled against the habeas defendant]: "We conclude that there is no federal constitutional right to the assistance of counsel in connection with state collateral relief proceedings, even where those proceedings constitute the first tier of review for an ineffective assistance of counsel claim."....
This case raises several important and interesting issues – Apart from the merits, does Teague limit a decision holding there is a constitutional right to the effective assistance of counsel on state post-conviction review in this situation? More to come.
Notable skepticism about making a federal criminal case against John Edwards
A piece appearing here at Am Law Daily under the headlined "On Edwards Indictment, Am Law 200 Ranks Include Plenty of Skeptics" could well serve as exhibit A if and when John Edwards moves to dismiss the federal felony indictment under which he is now charged. Here are highlights:
[U]nsolicited statements e-mailed to The Am Law Daily Friday by partners at several leading firms were uniformly skeptical of the six-count indictment against Edwards, who, before entering politics, made a small fortune as a plaintiffs lawyer.
Artur Davis, a former Democratic congressman and candidate for governor of Alabama, focused his statement on the Justice Department's decision to hand off the Edwards case to federal prosecutors in North Carolina. "It's telling that the local U.S. attorney's office in Raleigh issued the indictment," says Davis, now a partner at SNR Denton's white-collar and government investigations practice in Washington, D.C.
"While [Main] Justice has to sign off on the case, it is very unusual that any direct action [against] such a prominent individual like Edwards be left in the hands of a satellite office far from Washington."... "The case at its core is a dispute over whether certain funds were a legitimate campaign contribution, a gift, or an independent expenditure," Davis said. "It is extremely rare that these disputes produce a criminal investigation, much less an indictment."
DLA Piper's Peter Zeidenberg believes that the government's case could chart new legal territory because campaign finance violations usually result in civil fines levied by the Federal Election Commission rather than criminal charges. Aggressively prosecuting Edwards over the alleged use of campaign donations to conceal an affair could set a dangerous precedent, he added. "It is a very slippery slope if gifts, which do not directly benefit a campaign, are deemed to violate the law simply because they have some indirect benefit," Zeidenberg said. "In addition, while Edwards is hardly a popular politician right now, this case has very little jury appeal. It is hard to identify what the public harm is in this conduct. This may well be viewed by a potential jury as piling on, and simply kicking a guy when he is down."
Barry Pollack of Washington's Miller & Chevalier believes that just because prosecutors can target an individual as widely vilified publicly as Edwards has been for his personal conduct doesn't mean that they should do so. "Federal criminal laws are expansive enough that a clever prosecutor can recast almost any bad behavior into a federal crime," Pollack said. "Being a jerk should make you a jerk, not a federal felon."
Glen Donath, a white-collar and government enforcement partner with Katten Muchin Rosenman in Washington, also expressed displeasure over the Edwards indictment. "It is both surprising and distressing that the government has brought these charges, considering the novel theory underlying its case," Donath said. "Campaign finance violations are very difficult to prosecute given both the complex and subjective nature of the elements of the offenses."
In addition to confirming my first impression of the Edwards indictment, these comments have me hungering even more for the possibility that Edwards might try to use his skills as an advocate and lawyer to turn the tables on the feds here and put their prosecutorial charging and bargaining choices on trial in the weeks and months ahead.
The enormous discretionary powers of federal prosecutors and the often questionable forces that can drive the execise of these powers never get as much scrutiny as they justify. Especially in a case like this where it is hard to fully understand the national importance of spending considerable federal resources to try to turn a jerk like Edwards into a federal felon, I am hoping not only that federal prosecutorial charging and bargaining choices get put under the microscope, but also that we might learn some broader lessons about the possibilities and problems created by broad a novel application of federal criminal law.
Some recent posts on the Edwards indictment:
- Media reporting that John Edwards is to be indicted today
- Would John Edwards be wise to consider a guilty plea even if he is truly innocent?
"Can A Test Really Tell Who's A Psychopath?"
The title of this piece is the headline of this fascinating recent NPR segment, which examines the creation and use of a test for psychopaths. Here are some extended excerpts from the "science" part of the segment:
Canadian psychologist Robert Hare began studying psychopaths in the 1960s, and it's easy to forget now — in part because Hare's work has made the concept of the psychopath so commonplace — but a half-century ago, research on psychopaths was considered both obscure and largely irrelevant to understanding crime.
Back then, Hare says, there was a very clear consensus about where crime came from: Criminals were made, not born. "In those days, social factors, environmental factors were the explanation for all crime," Hare says....
Hare, for one, didn't fully buy this. He thought inborn personality was important . He says that as a psychologist, when he looked at people, he just saw incredible differences in temperament: differences in impulsivity, differences in the capacity for empathy, for feeling guilt.... Ultimately, [his research] led Hare to theorize that people with psychopathic personalities were essentially emotionally deaf. They simply did not have the capacity to feel, in a firsthand way, emotions like empathy and love and remorse....
Hare sat down with his research assistant and together they wrote down all the personality traits they'd consistently seen in the psychopaths they'd studied. Things like lack of empathy, lack of remorse, manipulation, egocentricity, impulsivity, superficial charm, psychological lying. For each of these qualities, Hare wrote up a description so it would be clear what he meant by, say, lack of empathy....The test listed 20 traits to check, and so Hare called it the Psychopath Checklist. Scores were totaled at the end — 40 was the highest score, but anything over 30 certified the test taker as a psychopath. Hare next tested his test to make sure that it was "scientifically reliable" — that two people using the test on the same person would reach the same conclusion about whether that person was a psychopath. In research settings, the PCL-R's reliability appeared astonishingly good.....
For about five years, Hare's test did exactly what he wanted it to do: make the science of psychopathy better. Psychopathy researchers from around the world bombarded Hare's lab with requests to use the PCL-R. They published study after study on their findings.
Then, in the mid-'80s, one of Hare's students, an undergraduate named Randy Kropp, decided to conduct a different kind of study using the PCL-R. Kropp selected a group of prisoners with high, low and moderate scores on the PCL-R, then followed them after their release from prison. He wanted to see whether prisoners with high scores were more likely to commit crimes than those with low scores once they were out on parole. About a year later, he published his findings.
"Those who had low scores on the PCL-R, about 20 to 25 percent would be re-convicted within four or five years," says Hare. "In the high group, it was about 80 percent." So a parolee who scored high had an 80 percent chance of committing another offense within the next five years. Low scorers had just a 20 percent chance of recidivism....
Suddenly, the PCL-R — a personality test used only in marginal academic research — appeared to identify the world's most serious chronic criminals. The research community was stunned, says Stephen Hart, a former student of Hare's who is now a leader in the field of psychopathy research....
Its predictive ability made the test potentially useful outside the lab. Shortly after Kropp's finding went public, Hart recalls, Hare's lab got a visit from Canada's National Parole Board. It wanted the test: "They said quite literally, 'What we want to do is give everybody this test, and then have the test score written in big red numbers on the front of the file. No parole board should be able to make a decision without having some knowledge of whether or not somebody is psychopathic!' "
[A]t least initially, Hare was deeply concerned about letting people in the criminal justice system use the PCL-R. He feared that the test, created purely for research purposes, might be used incorrectly in the real world and could hurt people. Hare was particularly worried, he says, because by that point, the test had become widely respected as a scientifically reliable instrument.... For years, Hare made it clear to his students that he would not give the test out to anyone working in the criminal justice system....
While Hare remains a strong believer that his test works well for the kind of basic scientific research that it was originally designed for, he and others have begun to wonder if it does as good a job outside the lab. "Once you get into the real world, there does seem to be some lessening of reliability," says Daniel Murrie, a professor at the University of Virginia who has studied what happens when psychological tests are taken from a rarefied research environment and transferred to the rough-and-tumble world of criminal justice.
About four years ago, Murrie decided to study the PCL-R to look at what happened when a psychologist hired by the prosecution gave Hare's test to the same prisoner as a psychologist hired by the defense. Did those two psychologists give the same score to the same person? The answer, says Murrie, was no. "Ten, 15, even 20-point score differences we found," he says, " And overall there was about an 8-point difference in scores."
The question is why. One possibility, Murrie argues, is that the psychologists using the test in prisons and courts might not be well-trained. "We don't know if the people giving the test in the field have gotten formal, rigorous training, or if they've just sort of bought the manual and maybe read a couple of papers and just decided to start using it," Murrie says.
But Murrie thinks it's also something else. He says that in his study, psychologists hired by the prosecution consistently gave higher scores than psychologists employed by the defense. Probably, Murrie says, because they're being paid for those opinions, and that money influences them.
The idea that criminal behavior is primarily a product of poor environments has much less power today, in part because Hare's work seemed to teach us that crime resides inside the person. Inborn personality traits, like empathy, can influence whether people participate in crime.
When you think about criminals this way — as people who are almost genetically predisposed to crime — you are much less likely to invest in their rehabilitation than if you saw their acts as the product of unfortunate environmental circumstances.
This is why it's so important to figure out if bias and bad training are affecting Hare's test to the point that it is potentially mislabeling people. After all, once someone is labeled as a psychopath, what can you do with him? Nothing but lock him away.
Along with this segment, the NPR website has this companion page titled "Expert Panel: Weighing The Value Of A Test For Psychopaths." This page sets out these views on the PCL-R's role in the criminal justice system:
- "Masking Bias With Science" by Karen Franklin
- "Identifying The Bad Apples" by Henry Richards
- "An Unreliable And Stigmatizing Tool" by John Edens
SCOTUS grants cert in significant habeas case and resolves one ACCA issue
The Supreme Court was back in action this morning, and the early reports from the SCOTUSblog folks indicate a significant habeas cert grant and the handing down of one Armed Career Criminal Act sentencing decision. Here are the basics:
There are two [cert.] grants [including] Martinez v. Ryan....
The Martinez cert grant is a big deal in habeas law. It involves the circumstances in which there is a constitutional right to effective counsel in post-conviction proceedings. And the Martinez v. Ryan case page [is at this link]....
The second opinion [handed down today] is McNeill v. United States. This is an opinion by Justice Thomas. The Court is unanimous. The Fourth Circuit's decision is affirmed. Here is the McNeill opinion.
The Court holds that a federal sentencing court must determine whether an offense under state law is a serious drug offense by consulting the maximum term of imprisonment applicable to a defendant's prior state drug offense at the time of the conviction. So changes to the drug offense are not relevant. It's the time of conviction.
UPDATE: This AP report on McNeill provides all you need to know about the decision via its headline: "Court: Career criminal won't get less prison time." Also, Ellen Podgor notes here that a case in which cert was denied today involved action hero Wesley Snipes.
Still more interesting ruminations on what accounts for modern lower crime rates
From Professor James Fox's Boston Globe blog here, "Abortion and crime -- A missing link." An excerpt:
Despite persuasive logic regarding a reduction in the number of children born to circumstances that would place them at-risk for growing into criminality, the significance of this effect appears to have been grossly overstated. For example, nearly 60% of the decline in murder since 1990 involved perpetrators ages 25 and older—individuals who would have been born prior to the landmark abortion decision. As shown in the figure below, there were substantial reductions during the 1990s in homicides committed by older age groups, especially those in the 25-34 year-old age range.
The abortion-crime link also cannot account for the transient surge in youth homicide during the late 1980s, if not for which the 1990s would not have witnessed such a sizable decline. The rise and then fall in youth homicide before and then after 1990 has much more to do with fast changing patterns of drug trade, gang activity and illegal gun supply than a sudden shift in abortion policy.
Finally, the abortion-crime hypothesis cannot explain the large drop in murder and other violent crime from the first six months of 2009 to the corresponding months of 2010. In fact, nothing really can.
From the Dan Walters at the Sacramento Bee here, "Is California crime drop due to 'three-strikes' law?". An excerpt:
[H]ave California's crime rates fallen because the state adopted a get-tough attitude three decades ago and began locking up more of its miscreants?
The prison population surged from about 20,000 to more than 160,000 during that period as sentencing laws were beefed up, symbolized by the passage of the state's "three strikes and you're out" statute. Supporters of the crackdown credit "three-strikes" and other sentencing laws for the steady drop in crime. Harris' remarks appear to support the view that when cops and prosecutors crack down, criminals retreat and the public is safer.
But to Robert Parker, a professor at the University of California, Riverside, that's just hot air. As the Supreme Court was issuing its ruling and Harris was announcing a decline in violent crime, Parker was circulating his new study contending that three-strikes and other sentencing laws had virtually nothing to do with the state's decreasing violent crime rate.
Citing "logic, data and research," Parker contends that "all these uniformly show little or no impact of three strikes policy on violent crime rates in California and elsewhere." He compared historic crime patterns in California and other states with similar laws to those without such laws and found they "show little difference in … pattern of violent crime."
Parker cites other studies that attribute crime rate declines to economic and social factors, such as alcohol consumption, rather than policing and sentencing policies and suggests it's "better to use alcohol policy to control violence than three strikes."...
His study, if nothing else, provides new fuel for the ever-burning crime debate.
A few recent related posts on how to account for still-dropping crime rates in the US:
- Wonderfully puzzling violent crime rate continue to decline (despite NFL lockout)
- Making the full-throated case for the notion that more Internet = less crime
- Another account of the crime rate's changing realities: blame the baby boomers
- James Q. Wilson's interesting take on what is behind falling crime rates: culture
"Plaxico Burress released from prison"
The title of this post is the headline of this news piece at ESPN, which gets started this way:
Plaxico Burress was released from prison Monday after serving nearly two years on a gun charge. As he left Oneida Correctional Facility in central New York Monday morning, he hugged agent Drew Rosenhaus and shook hands. He was wearing a black sweatshirt, black shorts, black sneakers and a Philadelphia Phillies hat.
"I just want to thank God for bringing me through one of the most trying times in my life," he said to reporters outside the prison. "It's a beautiful day. It's a beautiful day to be reunited with my family. I want to go home and spend some quality time with them."
"I'd like to thank everybody for their prayers and words of encouragement," he said. "I'd like to thank all my fans all around the world for the thousands of letters, for their unwavering support. As far as football is concerned, if and when everything gets settled, when they get back on the field, I'll be ready."
I remain disappointed that Plaxico opted to serve two years in prison rather than pursue a Second Amendment defense to his gun possession charges. However, now that PLax has done his time, he surely will be in a position to try to follow Michael Vick's NFL prison-to-star redemption path.
June 5, 2011
Would John Edwards be wise to consider a guilty plea even if he is truly innocent?
There is, of course, much to say about the rise and fall, and now the federal indictment, of John Edwards. But, as is my tendency, my review of the indictment (linked here) has me eager to discuss sentencing realities and plea practices/pressures. And, as the title of this post spotlights, I wonder if my wise and shrewd readers think a wise and shrewd federal defense attorney might advise Edwards that he'd be wise and shrewd to consider a plea deal even if Edwards considers himself, and truly is, innocent of the federal charges he is now facing.
Here's the basis and basics of my thinking: if the Edwards defense team could possibly work out some deal that requires only a plea to some misdemeanor count, the direct and collateral consequences of such a conviction (which would likely result in probation and preservation of Edwards' ability to practice law) could well be far less personally and professionally damaging than the direct and collateral consequences Edwards could face even if a jury were to find him not guilty at trial. The calculation gets more challenging if prosecutors demand that Edwards plead guilty to a felony (because of the possible collateral consequence of Edwards losing his law license), though again the potential to control and mitigate bad consequences through a plea might still make such a deal more appealing than the always uncertain outcome and the certain costs of a full-blown trial.
My thinking here is influenced somewhat by the reality that there seems to be little dispute that Edwards sought actively to cover up his affair and encouraged others to lie and otherwise foster this cover-up. Whether his cover-up amounts to a federal crime, especially given hard questions concerning Edwards' mental state, make this case quite interesting legally. But this interesting legal reality does not really diminish the serious and significant economic, professional and personal costs that will flow from a full-blown trial in which Edwards' misdeeds and his cover-up actions get a lot more attention than the legal specifics.
Put differently, any high-profile (and economically costly) trial, seems sure to result in Edwards being (further) convicted in the court of public opinion no matter formal legal verdict the federal jury returns. This is why I ask here for opinions on the notion that, even if Edwards considers himself and truly is innocent of the federal charges he is now facing, he would would wise to consider the possibility of working out a plea deal?
UPDATE: I have just seen this notable and fascinating new piece from the Raleigh News & Observer which suggests a plea deal along the lines I suggest was on the table for Edwards just before the indictment came down, but that the feds' demand for prison time prevented the deal from being sealed. Here are the details:
Just before John Edwards was indicted Friday, prosecutors made a final offer: They would accept his guilty plea to three misdemeanor campaign finance law violations in the $925,000 cover-up of his affair.
With the deal, the former Democratic vice-presidential nominee would avoid a felony conviction -- and almost certainly keep the law license that had made him wealthy. But there was a catch. The government wanted to dictate a sentence that would result in up to six months of prison for Edwards, even with the plea to lesser charges.
Edwards and his lawyers were concerned. They wanted the ability to at least argue to a judge for alternatives, such as a halfway house, weekend releases, home arrest or some arrangement that would allow Edwards to be with his school-age children. He is a single parent after the death of his wife, Elizabeth, in December.
But the way the possible plea deal was structured, the Edwards lawyers believed they would be muzzled from advocating at all about Edwards' confinement before a judge, according to multiple people who were involved in the negotiations. Those sources described the plea negotiations in detail on a condition of anonymity because the case is ongoing.
It was the last significant issue to be resolved for a plea. If Edwards didn't agree, he would be indicted on multiple felony charges. Edwards, 57, understood the risk. As a trial lawyer, he had sometimes spurned offers of settlements to take his chances with a jury, often winning big judgments. Would he do that again? The clock was ticking....
The main negotiators were Edwards' lawyer Gregory Craig and Jack Smith, chief of the Public Integrity Section. Both are based in Washington. They were looking to resolve the case short of a costly and uncertain trial. For much of the talks, the government's offer in any plea deal would have required that Edwards admit to at least one felony.
Under a felony plea, the deal would have included a sizable fine but maybe or maybe not prison time. Edwards refused. A felony would likely have ended his right to practice law, and Edwards doesn't believe that he committed a felony, according to people familiar with his views on the matter. Edwards has declined interview requests.
His team had shown defiance, too. As the case was under review behind the scenes in recent months, defense experts had been offering their views to prosecutors that what happened in the Edwards matter wasn't against the law, even if donors had given money to the mistress knowing that it was, in part, to keep the campaign going. One such meeting was on April 20 in Washington....
Edwards and his legal team gathered at his estate in Orange County into the late hours Thursday, connected on conference calls to prosecutors in Washington. Edwards' children were at the home, and he occasionally left the meeting to speak with them. But the tone was businesslike as the discussions and phone calls went past midnight.
What had started as a discussion of a felony with the possibility of no jail time had become a deal for misdemeanors but with more certainty of prison. That new twist came up relatively late in the talks. But as Thursday turned into Friday, Edwards could not agree to silence his lawyers from making arguments to a judge about confinement.
The sides agreed to talk again Friday morning, as a grand jury in Greensboro was prepared to act on an indictment. The failure to reach a plea, people who were involved said, wasn't certain until a few minutes before the indictment was returned by the grand jury about 9:30 a.m. Friday.
Edwards, just as he had in cases for his clients, would not accept a deal. For now, he would gamble on motions to a judge to dismiss the charges. And, if necessary, a jury.
I find it remarkable (but not at all surprising) that the feds in this case apparently were eager to mandate on Edward the punishment of serious collateral consequences from a felony conviction or the threat of jail time and the consequent disruption to the Edwards family. So much for the notion that neutral judges, and not partisan prosecutors, should decide on an appropriate sentence. In this case (as in so many others) prosecutorial charging and bargaining choices are driven by prosecutorial interest and power to demand a certain type of sentence.
I am anything but a fan of Edwards or defender of his unseemly behavior. But, after learning of these plea negotiation details, I am now hoping that Edwards might try to use his skills as an advocate and lawyer to turn the tables on the feds here and put their prosecutorial charging and bargaining choices on trial in the weeks and months ahead.
House arrest(!?!?!) for wealthy repeat dangerous driver who killed two in hit-and-run
A helpful reader forwarded to me this remarkable (and troubling?) sentencing story from the Chicago Tribue, which is headlined "LeVin gets house arrest after undisclosed settlement; Illinois man will pay undisclosed settlement, serve two years house arrest for deadly Porsche hit-and-run case." Here are the remarkable details:
The scion of a wealthy Chicago-area family pleaded guilty in a South Florida court Friday to killing two British businessmen with his Porsche but avoided prison after agreeing to pay an undisclosed sum to the widows. Ryan LeVin, 36, will spend two years under house arrest in his parents' oceanside condominium....
The businessmen's widows supported the sentence, and their attorneys collected checks from LeVin immediately after Friday morning's hearing. LeVin spoke only at the judge's prodding and offered no apology during the proceeding, where he pleaded guilty to leaving the scene of a fatal crash and two counts of vehicular homicide. "The need for restitution does outweigh the need for prison," Broward Circuit Judge Barbara McCarthy said.
LeVin admitted to being behind the wheel of his $120,000 Porsche 911 Turbo when it jumped a sidewalk and killed Craig Elford, 39, and Kenneth Watkinson, 48, as they were walking to their beachside hotel Feb. 13, 2009. LeVin initially denied driving the speeding car and pinned the blame on a friend.
Given that LeVin's sentencing guidelines called for up to 45 years behind bars, some legal experts say the case seems to be an unsettling example of checkbook justice. "It is an unbelievably light sentence," said Michael Seigel, a University of Florida law professor and former federal prosecutor. "It is very disturbing."...
At the time of the crash, LeVin was on probation in Illinois for a 2006 case in which he had driven into a Chicago police officer and instigated a chase on the Kennedy Expressway. Court records show LeVin has more than 50 traffic violations and a long history of drug abuse.
Illinois officials will work with Florida authorities to return LeVin to his home state, where he faces a parole violation stemming from the 2006 incident, an Illinois corrections spokeswoman said. Illinois will seek to have his parole revoked and sent back to prison.
Rather than agree to a deal with Florida prosecutors, who wanted him to serve 10 years in prison, LeVin took an open plea that placed his fate in the judge's hands. His lawyer argued that the need for LeVin to pay restitution to the men's widows and children outweighed the need for LeVin to serve prison time.
The payout settles a civil suit filed by the men's families shortly after their deaths. "The wives and children of the deceased were significantly and permanently impacted by this incident, and they have indicated … that there exists a great necessity for restitution which the defendant can, and will, make, if permitted a sentence devoid of incarceration," LeVin's defense attorney David Bogenschutz wrote in court documents.
Bogenschutz, who has requested that the Porsche be returned to LeVin, denied his client had purchased his freedom. "I think he hardly bought his way out of this," Bogenschutz said after the court hearing. "We have two victims who have an absolute say in what should happen in their case. All the judge did was follow the law."
By comparison, a South Florida driver who pleaded guilty to a similar hit-and-run crash with one fatality was sentenced Friday to nine years in prison and ordered to pay $5,000 in restitution.
Broward County Public Defender Howard Finkelstein called it another case of a privileged defendant receiving leniency from the justice system, something rarely afforded a common street criminal. "It is an outrage, and there should not be a single person in our community that is not offended by the fact that it is clear you can buy justice in Broward County," Finkelstein said. "Our clients in similar situations, in every case, go to prison for substantial periods of time. "If it is appropriate that you not go to prison when you have money, it should also be appropriate that you not go to prison when you have no money."...
LeVin's silver-spoon existence will hardly be cramped during his two years of house arrest, when he is confined to one of his parents' two $600,000 seaside condos. He can exercise in the building's gym, attend church and does not have to wear an electronic monitor to ensure his whereabouts. The house arrest will be followed by 10 years of probation. He is prohibited from driving.
In supporting the sentence, both widows wrote letters to the judge describing the financial hardships they've suffered since losing their husbands, who were the sole earners in their families. Watson left behind three children, and Elford had two daughters.
The widows agreed to LeVin's staying out of prison with certain conditions, including immediate payment to settle a civil wrongful-death lawsuit they had filed against him. "We have been living in uncertainty and financial need," Kirsty Watkinson wrote. "We need closure so we can start to move on with our lives."
LeVin initially declined to speak in court, but the judge asked him to spit out his chewing gum, look at the photographs of the men's mangled bodies and make a statement. Clearly nervous, his face red and glistening with sweat, LeVin said he was ashamed and tortured. But he did not say he was sorry. "There's not a day that goes by that I don't think about this," he said. "I feel complete shame and compassion for the victims. … My heart goes out to them. I would just like to say it's a nightmare."
Bogenschutz said after Friday's hearing that his client has learned his lesson and knows he could wind up in prison if he violates the terms of his house arrest or probation. "I think he's grown up a lot," Bogenschutz said. "He understands now how he has to stay out of trouble. I think this time around was a real eye-opener."
There are so many interesting elements to this story I could (and just may) focus my entire sentencing class this Fall on whether and why we should be troubled by how this case resulted in a seemingly (too) lenient non-prison sentence.
June 5, 2011 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack
Call for papers on "US Prisons" from William Mitchell Law Review
I received a request from the Executive Editor for the William Mitchell Law Review to post a call for papers. I am happy to oblidge:
Call for Papers - U.S. Prisons
William Mitchell Law Review, Vol. 38, Issue IV (Spring 2012)
The William Mitchell Law Review is proud to dedicate the fourth Issue in the upcoming Volume 38 (Spring 2012) to the topic of U.S. Prisons. We are currently seeking papers that examine a broad range of issues and recent developments regarding this topic, including but not limited to prison medical care, education in prisons, the war on drugs, prison privatization and prison overcrowding. Submissions may either take the form of shorter commentaries or longer law review articles. The deadline for submissions has been set for November 15, 2011.
The William Mitchell Law Review is highly regarded both regionally and nationally. Our Law Review recently ranked twenty-second in citations by judges and ranked fifty-seventh in citations by other law journals. Over the years, the William Mitchell Law Review has featured the works of various scholars and practitioners such as Congressman Tim Penny, and former Vice President Walter Mondale. The William Mitchell Law Review has also published nationally known legal experts ranging from Philip Bruner, to Supreme Court Justices Sandra Day O'Connor, Byron White, and Harry Blackmun. Now, we would like to invite you to join us to publish in our upcoming volume.
Please direct inquiries to Executive Editor Leah Graf at firstname.lastname@example.org. Please send submissions to email@example.com or mail them to our Editorial Office. Please note that the Law Review prefers electronic submissions in Word.