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.