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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:

June 7, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

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:

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.

June 7, 2011 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

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.

June 7, 2011 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

"'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 7, 2011 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

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 [email protected] 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 protected] 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.

June 6, 2011 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

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.

June 6, 2011 in Who Sentences? | Permalink | Comments (0) | TrackBack

Possible Graham sequel from Jacksonville based on 1st-degree murder charge for 12-year-old

060311fernandezThere 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.

June 6, 2011 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

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:

June 6, 2011 in Celebrity sentencings, White-collar sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

"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:

June 6, 2011 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

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.

June 6, 2011 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Still more interesting ruminations on what accounts for modern lower crime rates

Abort2 There continues to be lots of interesting MSM and new media discussion of lower modern US crime rates and the possible explanation for this good news.  Here are two news piece of note on this front:

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:

June 6, 2011 in Data on sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

"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 6, 2011 in Celebrity sentencings, Gun policy and sentencing, Second Amendment issues | Permalink | Comments (0) | TrackBack

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.

June 5, 2011 in Celebrity sentencings, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (26) | TrackBack

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 [email protected].  Please send submissions to [email protected] or mail them to our Editorial Office.  Please note that the Law Review prefers electronic submissions in Word.

June 5, 2011 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack