June 18, 2011
"Perverted Justice: Sex offender laws represent the triumph of outrage over reason"
The title of this post is the headline of this lengthy article authored by Jacob Sullum in the July 2011 issue of Reason magazine. (As I noted in this prior post, the July 2011 issue of Reason magazine is the must-read of the summer because of a large collection of important articles by important authors discussing the important need to reform lots of important elements of our modern criminal justice systems.) Here is how Sullum's piece gets started:
“If we had been aware of his record,” says Maureen Kanka, “my daughter would be alive today.” She is referring, in a statement on the website of an anti-crime group she founded, to Jesse Timmendequas, a neighbor in Hamilton Township, New Jersey, who raped and murdered her 7-year-old daughter, Megan, in 1994. Three months later, the state legislature enacted Megan’s Law, which created a publicly accessible registry of sex offenders.
“Without the registry,” says Shirley Turner, “he would still be alive today.” She is referring, in a 2006 interview with Human Rights Watch, to her 24-year-old son, William Elliot. He was murdered that year by a pedophile-hunting Canadian gunman who found his name and address in Maine’s online database of sex offenders. Elliot’s crime: When he was 19, he had sex with his girlfriend, who was three weeks shy of 16, the age of consent in Maine.
The panic that followed Megan Kanka’s murder produced an alarm system that often fails to distinguish between dangerous predators like Timmendequas, who had a record of assaulting little girls, and nonviolent lawbreakers like Elliot, who posed no discernible threat to the general public. They are all mixed together in the online registries of sex offenders that every state is required to maintain as a condition of receiving federal law enforcement funding — a mandate imposed by another Megan’s Law, enacted by Congress in 1996.
Registration only rarely leads to murder, but it routinely ruins relationships, triggers ostracism and harassment, and impedes education and employment. These burdens are compounded by state and local laws that ban sex offenders from living near schools, parks, day care centers, and other locations where children congregate. Such restrictions, which often apply even if an offender’s crime had nothing to do with children, can be so extensive that entire cities are effectively off limits. In Miami local residence restrictions have given rise to a colony of more than 70 sex offenders who live under the Julia Tuttle Causeway, a bridge that crosses Biscayne Bay.
Some sex offenders, including nonviolent ones, will not live to see the underside of a bridge because they receive sentences that keep them behind bars until they die. Two decades of ever-more-punitive legislation have produced sentencing rules so bizarre and byzantine that the punishment for possessing images of sexually abused children can be more severe than the punishment for sexually abusing them. And even prisoners who complete their sentences may not go free, since the federal government and about half of the states have laws authorizing the indefinite civil commitment of sex offenders who would otherwise be released.
American policies regarding sex offenders mark them as a special category of criminals for whom no stigma is too crippling, no regulations are too restrictive, and no penalty is too severe. This attitude, driven by fear and outrage, is fundamentally irrational, and so are its results, which make little sense in terms of justice or public safety. Like the lustful predators of their nightmares, Americans pondering the right way to deal with sex offenders seem captive to their passions.
June 18, 2011 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack
Two notable (and one suprising!?!) recetn capital rulings from the Eleventh Circuit
This past week the Eleventh Circuit handed down two notable capital rulings, one from Alabama and one from Florida: Powell v. Thomas, No. 11-12613 (11th Cir. June 15, 2011) (available here); Johnson v. Secretary, DOC, No. 09-15344 (11th Cir. June 14, 2011) (available here).
The Powell ruling, somewhat unsurprisingly, refused to stay an execution (which went forward Thursday) based on the defendant's complaints on various grounds about Alabama's changes to its execution protocol. The Johnson ruling, somewhat surprisingly, granted habeas to a Florida capital defendant sentenced to death in 1980(!) based on an ineffective assistance of counsel claim. Here is how the Johnson opinion, per Judge Carnes, gets started:
Earlier this year the Supreme Court reminded lower federal courts that when the state courts have denied an ineffective assistance of counsel claim on the merits, the standard a petitioner must meet to obtain federal habeas relief was intended to be, and is, a difficult one. Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786 (2011). The standard is not whether an error was committed, but whether the state court decision is contrary to or an unreasonable application of federal law that has been clearly established by decisions of the Supreme Court. 28 U.S.C. § 2254(d)(1). As the Supreme Court explained, error alone is not enough, because “[f]or purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law.” Harrington, ___ U.S. at ___, 131 S.Ct. at 785 (quotation marks omitted). And “even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id., 131 S.Ct. at 786.
When faced with an ineffective assistance of counsel claim that was denied on the merits by the state courts, a federal habeas court “must determine what arguments or theories supported or, [if none were stated], could have supported, the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Id., 131 S.Ct. at 786. So long as fairminded jurists could disagree about whether the state court’s denial of the claim was inconsistent with an earlier Supreme Court decision, federal habeas relief must be denied. Id., 131 S.Ct. at 786. Stated the other way, only if “there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme] Court’s precedents” may relief be granted. Id., 131 S.Ct. at 786.
Even without the deference due under § 2254, the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), standard for judging the performance of counsel “is a most deferential one.” Harrington, ___ U.S. at ___, 131 S.Ct. at 788. When combined with the extra layer of deference that § 2254 provides, the result is double deference and the question becomes whether “there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id., 131 S.Ct. at 788. Double deference is doubly difficult for a petitioner to overcome, and it will be a rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding. This is one of those rare cases.
June 17, 2011
"Five myths about incarceration"
The title of this post is the headline of this new piece in the Washington Postauthored by Marc Mauer and David Cole. The piece merits a full read, but here I will spotlight the author's set-up and statement of their "five myths."
No country on Earth imprisons more people per capita than the United States. But for America, mass incarceration has proved a losing proposition. The Supreme Court recently found California’s overcrowded prisons unconstitutional, and state legislators want to cut the vast amounts of public money spent on prison warehousing.
Why are so many Americans in prison, and which ones can be safely released? Let’s address some common misunderstandings about our incarceration problem.
1. Crime has fallen because incarceration has risen....
2. The prison population is rising because more people are being sentenced to prison....
3. Helping prisoners rejoin society will substantially reduce the prison population.....
4. There’s a link between race and crime....
5. Racial disparities in incarceration reflect police and judges’ racial prejudice.
I am very interested in any and all reader reactions to these "five myths." In particular, I would like to hear any comments/arguments contending that one or more of these myths are not really myths, and I would also would like to hear any comments/arguments contending that there are other more important myths about incarceration that did not make Mauer and Cole's list.
Sentencing proof that Brooklyn never quite gets the respect of Manhattan...
comes from this New York Daily News article, headlined "Fraudster dubbed 'Brooklyn's Bernie Madoff' sentenced to 20 years in prison." Here are the basics:
A Brooklyn fraudster was sentenced Friday to 20 years in prison for fleecing hundreds of hard-working victims in a Ponzi scheme that went on for three decades. Philip Barry, dubbed "Brooklyn's Bernie Madoff" received far less jail time than the 150 years his namesake is serving, but the financial ruin he wrought was no less devastating.
"He's just like a bank robber," Francis Monteleone said in Brooklyn Federal Court. "He robbed my dad, a struggling tailor who trusted him," said Monteleone who also handed over $215,000 from her divorce settlement to the bum.
Barry, 53, a boyish-looking schlub who is a master manipulator, listened impassively as seven victims poured out their hearts to Judge Raymond Dearie.
Linda Poluha said Barry won't have to worry about his three square meals or a roof over his head that doesn't leak like her family does. "If there was still such a thing as a chain gang I believe you deserve that," Poluha said.
The judge dismissed defense lawyer's Lisa Hoyes' argument that Barry lived frugally and didn't enrich himself with the life savings entrusted to him. "Does that make any difference to these folks?" Dearie said.
Assistant U.S. Attorney Jeffrey Goldberg pegged the victims' losses at more than $24 million.
The joke in the title of this post is based on the fact that "Brooklyn's Bernie Madoff" received a prison sentence only roughly 12% as long as Manhattan's Bernie Madoff. Then again, given that the victims' losses caused by Madoff have been pegged to be many billions of dollars, "Brooklyn's Bernie Madoff" actually got a longer sentence for his fraud if measured on a dollar-for-dollar, prison-term-for-prison-term basis.
"Can imprisonment rehabilitate?"
The title of this post is the title of this terrific post at Grits for Breakfast asking some of the bigger and broader questions implicated by the narrow ruling by the Supreme Court yesterday in Tapia. Here are excerpts of this post, which ends with questions on which I would also like to hear reader comments:
Kagan [in here opinion for the Court in Tapia] identified the four stated purposes of criminal sentences — retribution, deterrence, incapacitation, and rehabilitation - but explained that federal law does not allow all of them to be considered in crafting different types of sentences. For example, not only may rehabilitation not be considered when ordering imprisonment, but "retribution" may not be considered when ordering community supervision. Kagan found especially "illuminating ... a statutory silence — the absence of any provision granting courts the power to ensure that offenders participate in prison rehabilitation programs."
The opinion does not impact state courts, interpreting only a federal criminal statute, but this same issue comes up frequently in the context of drug courts, which in Texas may require longer-than-usual incarceration stints in secure lockups known as "community corrections" facilities as a condition of probation for up to two years to facilitate rehabilitation. For that matter, the statute authorizing drug courts explicitly allows "a court [to] use other drug awareness or drug and alcohol driving awareness programs to treat persons convicted of drug or alcohol related offenses."
So while the federal statute explicitly excludes rehabilitation as a goal of incarceration on the grounds that locking someone up is "not an appropriate means of promoting correction and rehabilitation," Texas law specifically contemplates imprisonment in a secure facility in pursuit of rehabilitative goals.
The Catch-22 for Texas' stance comes in cases like Tapia's where a defendant is recommended for a treatment program but there are lengthy delays because of a shortage of treatment capacity (Tapia, despite the court's recommendation, never actually entered the federal RDAP program). Another version of that phenomenon: Texas' parole board frequently extends prisoners' time they're incarcerated because they've not completed this or that treatment program, even when the reason they didn't complete it is a lengthy waiting list for services, not anything the prisoner did or didn't do. That's been an issue most particularly in DWI cases, but at various times that observation would also apply to drug treatment, sex-offender treatment, and other rehabilitative programs.
Should rehabilitation goals be considered in sentencing someone to prison? While Kagan finds ample backing to say federal law "precludes sentencing courts from imposing or lengthening a prison term to promote an offender’s rehabilitation," it's an open question — one on which I'd like to hear Grits readers' opinions — whether that's the right policy.
It's also interesting to me, though understandable, that drug treatment in a secure facility is equated in this opinion with pure "imprisonment" with no rehabilitative goals. In Texas political debates and even in the statutes, treatment in a secure facility is considered a separate beast from straight up imprisonment — an "alternative to incarceration," in the parlance. But the offender is still locked up while receiving treatment. What do you think? Is this a distinction without a difference?
Recent related posts on the Tapia ruling:
- Very big criminal justice morning from SCOTUS...
- A few (too quick and too biased?) reactions to SCOTUS' work in Tapia
Jimmy Carter says "Call Off the Global Drug War"
Today's New York Times has this notable new commentary authored by former US President Jimmy Carter headlined "Call Off the Global Drug War." Here are excerpts:
In an extraordinary new initiative announced earlier this month, the Global Commission on Drug Policy has made some courageous and profoundly important recommendations in a report on how to bring more effective control over the illicit drug trade. The commission includes the former presidents or prime ministers of five countries, a former secretary general of the United Nations, human rights leaders, and business and government leaders, including Richard Branson, George P. Shultz and Paul A. Volcker.
The report describes the total failure of the present global antidrug effort, and in particular America’s “war on drugs,” which was declared 40 years ago today. It notes that the global consumption of opiates has increased 34.5 percent, cocaine 27 percent and cannabis 8.5 percent from 1998 to 2008. Its primary recommendations are to substitute treatment for imprisonment for people who use drugs but do no harm to others, and to concentrate more coordinated international effort on combating violent criminal organizations rather than nonviolent, low-level offenders.
These recommendations are compatible with United States drug policy from three decades ago. In a message to Congress in 1977, I said the country should decriminalize the possession of less than an ounce of marijuana, with a full program of treatment for addicts. I also cautioned against filling our prisons with young people who were no threat to society, and summarized by saying: “Penalties against possession of a drug should not be more damaging to an individual than the use of the drug itself.”
These ideas were widely accepted at the time. But in the 1980s President Ronald Reagan and Congress began to shift from balanced drug policies, including the treatment and rehabilitation of addicts, toward futile efforts to control drug imports from foreign countries. This approach entailed an enormous expenditure of resources and the dependence on police and military forces to reduce the foreign cultivation of marijuana, coca and opium poppy and the production of cocaine and heroin. One result has been a terrible escalation in drug-related violence, corruption and gross violations of human rights in a growing number of Latin American countries....
At the end of 1980, just before I left office, 500,000 people were incarcerated in America; at the end of 2009 the number was nearly 2.3 million. There are 743 people in prison for every 100,000 Americans, a higher portion than in any other country and seven times as great as in Europe. Some 7.2 million people are either in prison or on probation or parole — more than 3 percent of all American adults!
Some of this increase has been caused by mandatory minimum sentencing and “three strikes you’re out” laws. But about three-quarters of new admissions to state prisons are for nonviolent crimes. And the single greatest cause of prison population growth has been the war on drugs, with the number of people incarcerated for nonviolent drug offenses increasing more than twelvefold since 1980.
Not only has this excessive punishment destroyed the lives of millions of young people and their families (disproportionately minorities), but it is wreaking havoc on state and local budgets. Former California Gov. Arnold Schwarzenegger pointed out that, in 1980, 10 percent of his state’s budget went to higher education and 3 percent to prisons; in 2010, almost 11 percent went to prisons and only 7.5 percent to higher education.
Maybe the increased tax burden on wealthy citizens necessary to pay for the war on drugs will help to bring about a reform of America’s drug policies. At least the recommendations of the Global Commission will give some cover to political leaders who wish to do what is right.
Recent related posts:
- Big international report calling global drug war a failure
- "U.S. can't justify its drug war spending, reports say"
- Commemorating the "War on Drugs" as it begins its fifth decade
"Fear-mongering from the Bench: Scalia & Alito Disgrace Themselves in Brown v. Plata"
The title of this post is the headline of this sharp commentary authored by Malcolm C. Young, who is the Soros Senior Justice Fellow and Director of the Program for Prison Reentry Strategies at Northwestern University Law School’s Bluhm Legal Clinic. Here are excerpts:
The ruling [in Plata] should have been a slam dunk, given the repeated findings of atrocious conditions, the repeated failure of state defendants to provide remedies, and the consensus among national experts that the prison population had to be reduced — and could be reduced safely. The testifying experts, many previously hired by the state to produce commission reports, included five former or current heads of state departments of corrections. Of those, four had never before testified for prisoner plaintiffs — but came forward, as one stated, because “the prisons aren’t safe,” and “nobody seems to be willing to step up to the plate and fix the problem.” This was the record on which Justice Kennedy based the majority opinion.
Yet the narrow, 5–4 ruling was in fact anything but a slam dunk; and while those of us who agree with the majority may have won a battle, the war remains very much in question. Especially when you survey the weapons the other side deployed. In a troubling display of injudicious rhetoric, dissenting Supreme Court Justices Antonin Scalia and Samuel Alito used scare tactics to describe, in frankly demagogic terms, the potential effects of the majority decision in Brown v. Plata. In separate dissenting opinions, Scalia and Alito took potshots at the lower court’s ruling and at their colleagues’ majority opinion. Scalia faulted the lower court’s order as too broad a remedy, asserting sarcastically that “the vast majority of inmates most generously rewarded by the release order ... will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.” Elaborating this theme, he speculated about “the inevitable murders, robberies, and rapes to be committed by the released inmates,” while Alito warned of a future “grim roster of victims.” Together they repeated nine times that “forty-six thousand convicted criminals” will be released—“the equivalent of three Army divisions,” Alito mused darkly, conjuring up columns of soldiers shouldering rifles and marching out of prison to wreak havoc on the public....
Do the wild alarms of Justices Scalia and Alito reflect willful misunderstanding or merely a runaway sense of the theatrical? Whatever the case, they ignore some crucial facts: that the recommended releases will result in no more than a manageable 14.5 percent increase in prisoner releases in California; that many California prisoners pose minimal risk to citizens, including over thirty-two thousand convicted of low-level, nonviolent crimes and thousands more of drug-related offenses; that seventy thousand former prisoners are returned each year for violating parole, including seventeen thousand whose violations consisted of simply breaking an administrative rule such as not reporting to their parole office; and finally that forty-seven thousand new inmates arrive at the gates each year with less than ninety days to serve in prison — “convicted criminals” who are coming home soon anyway, no matter what the courts rule. And as for the lurid invocation of iron-pumping cons, such imagery is suggestive but false. As evidence in the lower court amply showed, California’s prison gyms and day rooms are “crammed” with three-high bunk beds. No one is “pumping iron” in them....
Citizens eager to alleviate unconscionable prison conditions should celebrate the decision in Brown v. Plata cautiously. Grounded in evidence and important principles, the majority opinion concludes that “a prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in a civilized world.” And yet I fear that the dissenting opinion may be the one that ultimately prevails. That is because the dissenting justices appealed to the same exaggerated but durable fear of crime — and the same intuitive but inaccurate reliance upon incarceration as a solution—that brought California before the Supreme Court in the first place. Two starkly divergent opinions mapping starkly divergent courses for our future: it remains to be seen, in a nation beset by unprecedented mass incarceration and all the accompanying human and financial costs, which one will win the day.
Some prior posts on the Plata ruling and responses thereto:
- In 5-4 split, SCOTUS (per Justice Kennedy) affirms California prison reduction order
- Some big-time rhetoric in big-time SCOTUS Plata prison ruling
- Has Justice Scalia started drinking Justice Breyer's "Active Liberty" Kool-Aid? Really?!?!
- A simple take on Plata: Congress asked for this in the PLRA
- Is California so dysfunctional that doom and gloom is the right reaction to Plata?
- Could SCOTUS Plata ruling grease path to reform of California's tough 3-strikes law?
- "The Right Way to Shrink Prisons"
- Still more notable commentary about Plata and its prisoner release order
- "Jerry Brown says state needs more time to implement Supreme Court prison ruling"
- California reports on its prison population plans after Plata
- Reviewing the "political paralysis" making California sentencing reform distinctly dysfunctional
Illinois Supreme Court limits state efforts to take monies earned by prisoners
As detailed in this AP article, a state effort to encourage "inmates to get jobs in prison and then taking away the money they make to pay for their incarceration is absurd and unjust, the Illinois Supreme Court ruled Thursday." Here is more:
Although the state may take a percentage of prisoners' earnings and "assets" such as Social Security or pension benefits, state law does not allow confiscating all money earned at jobs worked behind bars.
The state Department of Corrections had sued convicted murderer Kensley Hawkins for the estimated $455,000 cost of keeping him locked up in a Joliet prison from 1983 to 2005. Officials sought authority to take a good chunk of the $11,000 he had in a savings account after working as a furniture assembler.
Justice Rita Garman, writing for a unanimous court, decided that two state laws seem to contradict each other allow Corrections to seek reimbursement for the cost of incarceration and may take a portion of prison wages to satisfy that cost -- in Hawkins' case, 3 percent, or $750.
But the law says the rest shall be deposited into inmates' bank accounts. Any other interpretation is "absurd, unjust," and not what lawmakers intended, Garman wrote. A prison system that takes away what inmates earn also takes away incentive to work and learn a marketable skill, Justice Lloyd Karmeier wrote in a special concurring opinion.
"Work may be its own reward for some, but probably not for most inmates in the Department of Corrections," Karmeier wrote. "Once inmates realized that the extra work necessary to generate savings would benefit only the Department of Corrections, not them, they would quickly reevaluate the utility of prison employment."...
Robyn Ziegler, of Attorney General Lisa Madigan's staff, said the opinion "provides some much-needed clarity to the law and recognizes that the state can continue to recoup costs of incarceration under other circumstances." Hawkins' lawyer, David Simonton, said the ruling proves "Illinois is serious in promoting the basic hope of its prison system -- namely, that once inmates are released they will not return to a life of crime."...
Hawkins, convicted of murder, armed robbery and other crimes in Will County in 1982, is not scheduled for release until May 2028. But studies show inmates who work in vocational programs are 20 percent less likely to re-offend, according to the Institute for People with Criminal Records, a Colorado-based non-profit group, which filed a brief in the case. It also pointed to a study that found of more than 20,000 inmates released to Chicago communities in 2005, 1,200 of them wound up homeless.
The full Illinois Supreme Court opinion in Hawkins is available at this link.
Texas able to complete one execution, after SCOTUS stayed another
As detailed in this Reuters article, headlined "Texas executes man for prison stabbing," the state of Texas batted .500 this week in trying to carry out scheduled executions. Here are the basics, along with some broaded execution data:
A man convicted of fatally stabbing a fellow inmate in a state prison in 1999 was executed in Texas on Thursday evening by lethal injection.
Lee Taylor was to be the second man put to death in Texas this week. But on Wednesday, the U.S. Supreme Court stayed the execution of John Balentine, who fatally shot three teenagers in Amarillo in 1998. Balentine had raised an issue about whether he has a right to be represented by a lawyer in a post-conviction state hearing challenging the effectiveness of his lawyers at trial.
Taylor, 32, used an ice-pick-like weapon made in prison to stab fellow inmate Donta Greene multiple times in what the Texas Department of Criminal Justice describes as a fight stemming from racial tension. Taylor, who is white, was a member of the Aryan Brotherhood of Texas, according to the department. Greene was black....
Taylor was the fifth inmate executed in Texas this year. Alabama on Thursday executed a man for brutally murdering a 70-year-old woman in 1995. Those two executions brought to 22 the number of people put to death in the United States so far this year.
Texas has executed more than four times as many people as any other state since the death penalty was reinstated in the United States in 1976, according to the Death Penalty Information Center. The next execution in Texas is scheduled for Tuesday.
June 16, 2011
A few (too quick and too biased?) reactions to SCOTUS' work in Tapia
I have now had a chance to read quickly the Supreme Court's work in Tapia v. US (available here), the one major sentencing ruling handed down this morning with a group of interesting criminal justice decisions (basics here). My reactions to the Court's opinion are necessarily biased by the fact that I helped Professor Stepohanos Bibas put together the amicus arguments rejected by the Court. (Like every committed advocate I became convinced we should prevail, even though I was pretty sure we would not.) Thus, my quick reactions/perspectives here are not as objective as on other issues. With that caveat, here are some thoughts:
1. Justice Kagan's opinion for the Court is really engaging and effective: it is easy (dare I say fun?) to read with lots of cool (but not off-putting) terms, all the while making basic points crisply but not laboriously. (The use of words like "aficionados" and "loosey-goosey" and "ditto" and "armchair legislators" leads me to believe Justice Kagan aspires to a writing approach and style most akin to the Chief and also her hunting partner, Justice Scalia.)
2. The Court's opinion does not take on directly what I had always considered the best counter-argument to its holding, an argument based on a very technical canon-of-construction statutory argumenbt based on a comparision of the text and structure of the provisions of 18 USC §3582(a) versus §3583(c). I will not rehearse this argument here, but I do think it notable that this very technical argument is not directly rebutted (though, this is understandable given that the argument was not stressed or developed at extensive length in the amicus brief).
3. The Court's opinion, quite usefully in my view, keeps its holding narrow by adding this important coda:
A court commits no error by discussing the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs. To the contrary, a court properly may address a person who is about to begin a prison term about these important matters.... So the sentencing court here did nothing wrong — and probably something very right — in trying to get Tapia into an effective drug treatment program.
I was eager to help the amicus in this case driven mainly by a (misguided?) concern that a broad ruling might in other cases dissuade sentencing judges from being candid about their interests in helping defendants get needed treatment or from giving appropriate thought to sentencing advocacy that sounded in rehabilitative terminology. This coda (and the overall approach of the opinion) would seem to alleviate any such concern.
4. The Court's opinion, quite tellingly and appropriately in my view, dodges what might eventually be a follow-up issue with this notable footnote:
The Government argues that “Congress did not intend to prohibit courts from imposing less imprisonment in order to promote a defendant’s rehabilitation.” Brief for United States 40 (emphasis added). This case does not require us to address that question, and nothing in our decision expresses any views on it.
I suspect the Court's opinion might not have been unanimous if it had spoken to this issue, though it makes sense that it left this issue for future resolution in a case raising it directly.
Third Circuit rejects sundry challenges to lack of fast-track sentencing programs in certain districts
The Third Circuit has an interesting discussion of so-called fast-track sentencing programs today in US v. Lopez, No. 10-2518 (3d Cir. June 16, 2011) (available here). Here is how the opinion starts:
In these consolidated appeals, Jose Lopez, Pedro Esparza-Diaz, Pedro Arrelucea-Zamudio, and Silvestre Brito-Hernandez (“Appellants”) challenge the constitutionality and reasonableness of the sentences they received after pleading guilty to illegal reentry, in violation of 8 U.S.C. § 1326(a) and (b)(2). Appellants claim that their Fifth Amendment rights were violated as a result of the Department of Justice‟s (“DOJ”) implementation of “fast-track” early disposition programs in select judicial districts. Section 5K3.1 of the United States Sentencing Guidelines (“U.S.S.G.”) permits a district court to depart not more than four levels pursuant to an early disposition program authorized by the Attorney General for the particular district. In districts where fast-track programs are in place, qualifying defendants have the option to plead guilty immediately, in exchange for the Government's filing of a motion to depart pursuant to U.S.S.G. § 5K3.1. None of the districts within the Third Circuit have a fast-track program.
Although Appellants acknowledge that fast-track programs are defensible in districts with a high volume of immigration cases, such as districts along the southwest border of the United States, they challenge the reasoning behind authorizing these programs in districts with a low volume of immigration cases and in non-border districts. Appellants maintain that fast-track programs have been approved in an arbitrary manner, creating a disparity among similarly situated defendants that violates their Fifth Amendment right to equal protection. Additionally, Appellants challenge the reasonableness of their sentences. We determine that the DOJ's implementation of fast-track programs is rationally related to several legitimate governmental interests and does not violate Appellants' Fifth Amendment rights. Further, the sentences imposed were procedurally and substantively reasonable. We will affirm the judgments of sentence entered by each District Court.
June 16, 2011 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Very big criminal justice morning from SCOTUS...
which perhaps was inevitable because I am on the road with limited on-line time. In any event, thanks to How Appealing, I can quickly cut/paste the highlights:
Justice Kagan delivered the opinion for a unanimous Court in Tapia v. United States, No. 10-5400. Justice Sonia Sotomayor issued a concurring opinion, in which Justice Samuel A. Alito, Jr. joined....
Justice Sotomayor delivered the opinion of the Court in J.D.B. v. North Carolina, No. 09-11121. Justice Alito issued a dissenting opinion, in which the Chief Justice and Justices Antonin Scalia and Thomas joined....
Justice Alito delivered the opinion of the Court in Davis v. United States, No. 09-11328. Justice Stephen G. Breyer issued a dissenting opinion, in which Justice Ruth Bader Ginsburg joined.
And Justice Kennedy delivered the opinion for a unanimous Court in Bond v. United States, No. 09-1227. Justice Ginsburg issued a concurring opinion, in which Justice Breyer joined.
Tapia is the only hard-core sentencing opinion (in a case in which I helped out the court-appointed amicus), and I should have lots of posts about the ruling later today. But the outcomes and voting and opinions in these other cases ought also interest anyone who following the Supreme Court's criminal justice work. I look forward to finding time the rest of this week to comment on all these rulings. In the meantime, I hope commentors will chine in.
SCOTUS back in action this morning...
while I am on the road. Might we get rulings in one or more of the remaining cases that might be of special interest to sentencing fans, such as Tapia or Freeman or Bond or, after all this time, the California violent video game opinion?
Early predictions (or reactions after SCOTUSblog reports the news after 10am EDT) are welcome until I get back to a computer this afternoon.
"Texas Death Row Case Resonates to a Treaty"
The title of this post is the headline of this article from the New York Times about a capital case getting a lot of attention lately. Here is how the article starts:
The death penalty case against Humberto Leal García Jr. did not seem like the sort to draw attention from a high-profile list of former U.S. diplomats, prosecutors, politicians and military men: He was convicted in Texas of raping, kidnapping and murdering a 16-year-old girl, Adria Sauceda, bludgeoning her with a heavy chunk of asphalt.
But Mr. Leal, a Mexican citizen, was not immediately informed of his right, under an international treaty signed by the United States, to seek assistance “without delay” from Mexican consular officials in navigating a confusing foreign legal system. Such help might have been crucial for someone like Mr. Leal who, his lawyers say, had few resources and a limited understanding of his plight.
“This was an eminently defendable case, and I don’t think it would have been a capital case if he’d had decent trial counsel” from the start, said Sandra L. Babcock, a Northwestern University law professor representing Mr. Leal on behalf of the Mexican government.
With Mr. Leal’s execution approaching on July 7 in Texas, where 14 other Mexicans are also on death row, calls have mounted for Governor Rick Perry to grant a stay.
The former officials and military men urging a delay say that only by zealously enforcing terms of the Vienna Convention on Consular Relations at home, with its guarantee of quick consular notification, can the United States expect similar treatment for Americans arrested abroad.
More than 6,600 Americans were arrested abroad in the year that ended on Sept. 30, by State Department count; nearly half were incarcerated. They include exchange students accused of buying drugs, diplomats caught up in protest marches and tourists who stray across borders.
“Consider a traffic accident in a foreign country,” said Mark Warren, an Ottawa-based legal researcher who specializes in consular rights issues. “In a lot of countries you get arrested, you are held, you are interrogated, you may be held incommunicado for weeks. It’s not speculative — this happens a lot — and if you don’t have access to your consulate, you have no friends, you are completely isolated.”
Observing the treaty is not “a favor to foreigners” but a “plainly compelling” national interest in protecting Americans abroad, said John B. Bellinger III, who was the top State Department lawyer under President George W. Bush and who joined other former diplomats in a plea to Mr. Perry, the Texas governor. Mr. Perry is awaiting a recommendation from the State Board of Pardons, his office said, though Texas has rarely granted clemency.
Senator Patrick Leahy, chairman of the Senate Judiciary Committee, introduced legislation this week to address cases like Mr. Leal’s. The bill, which has the backing of the Obama administration, would provide for review by a federal court when a prisoner facing a death sentence claims his consular rights were violated, and calls for a stay of execution, if necessary, to allow such a review. But it does not extend to noncapital cases, and no comparable bill has been introduced in the House of Representatives.
June 15, 2011
Reviewing the "political paralysis" making California sentencing reform distinctly dysfunctional
This front-page article from the San Francisco Chronicle, which is headlined "'Political paralysis' in Calif. over prison reform," highlights effectively the political forces that ultimately culminated in the Supreme Court need to affirm the major prison population reduction order in the Plata case last month. Here is how the piece starts and some notable quotables from the piece:
As California deeply cut spending for public schools, social services and health programs in recent years, state leaders also found themselves grappling with a court order to reduce the prison population by tens of thousands of inmates.
Some civil rights groups and criminal justice experts are now seizing on this perfect storm of chronic deficits and crowded prisons to push for wide-ranging changes to the state's sentencing laws that would transform California's handling of crime and punishment. The California chapters of the American Civil Liberties Union and other civil rights groups want the state to reduce drug possession and low-level, nonviolent property crimes from felonies to misdemeanors, and they want more community-based alternatives to incarceration.
Yet even modest changes have trouble getting legislative support from Republicans and Democrats alike in California -- even as bipartisan groups of policymakers in conservative states such as Texas, Mississippi and Kentucky embrace sentencing reform and alternatives to incarceration.
"There's a political paralysis here - people are afraid," said former state Sen. Gloria Romero, D-Los Angeles, whose 2007 bill to create an independent sentencing commission passed the Senate but failed in the Democratic-dominated Assembly. "I think it's a false fear, but they are afraid of being labeled soft on crime, so they legislate by sound bite. They don't take up the big issues, so years pass and we are in the same predicament."...
Last month, a bill that would have given district attorneys the power to decide whether to charge marijuana cultivation as either a misdemeanor or felony -- and save taxpayers an estimated $3.5 million a year -- mustered only 24 votes in the Assembly, with much of the opposition coming from Democrats. And Gov. Jerry Brown's proposal to send low-level, nonviolent offenders to local jails instead of state prisons has prompted howls from the right. Republican Assemblyman Jim Nielsen of Gerber (Tehama County) warned of "blood on the streets," and Sen. Sharon Runner, R-Lancaster (Los Angeles County), said Californians need to "get a gun, buy a dog, and put an alarm system in."
"It's the politics of fear," said Sen. Mark Leno, D-San Francisco, who has had mixed results in pushing prison reforms through the Legislature. "In times of fiscal crisis, when we are limited to a few choices, the question is how long can we afford to lock up ever more people for longer periods of time and still have funds for public education and higher education?" Leno said California's corrections budget has more than doubled as a percentage of the state's general fund spending since he entered the Legislature in 2003....
Barry Krisberg, a criminal justice expert at UC Berkeley, said the California District Attorneys Association has enormous sway over lawmakers and opposes most sentencing changes. He noted that the federal government and 23 states have sentencing commissions, which tend to increase penalties for violent crimes and decrease penalties for nonviolent offenses.
"The question is, what's wrong with us? Are we more conservative than Virginia? Are we more irrational than North Carolina?" he said. "It's the politics, and it's the dilemma of this state. ... Unlike almost all the other states, we have been unable to get the two parties to sit down and cut a deal. It's not the prison guards -- they are not standing in the way. It's not victims' rights groups. It's really the District Attorneys Association."...
Politicians also fear the "Willie Horton" syndrome, Krisberg said -- a reference to the Massachusetts felon who did not return from a weekend prison furlough program and brutally raped a woman. Then-Massachusetts Gov. Michael Dukakis' support for the program and response to the incident helped doom his White House bid. "Democrats are scared of being used in the next campaign," Krisberg said. "The minute we made determinate sentencing (the law) through the Legislature, we made sentencing a political issue. That's been going on for 30 years, and it's hard to turn around after 30 years."
That's not the case everywhere, said Adam Gelb of the Pew Center on the States. He said states such as Texas, Mississippi and Kentucky have taken notice of the fact "that states can reduce their incarceration rate and also have less crime."
Prior posts on the Plata ruling and responses thereto:
- In 5-4 split, SCOTUS (per Justice Kennedy) affirms California prison reduction order
- Some big-time rhetoric in big-time SCOTUS Plata prison ruling
- Has Justice Scalia started drinking Justice Breyer's "Active Liberty" Kool-Aid? Really?!?!
- Early press coverage and reactions to SCOTUS California prison ruling in Plata
- Lots and lots of interesting commentary on SCOTUS Plata prison ruling
- A simple take on Plata: Congress asked for this in the PLRA
- Is California so dysfunctional that doom and gloom is the right reaction to Plata?
- Lots more talk about Plata and its consequences a week later
- Could SCOTUS Plata ruling grease path to reform of California's tough 3-strikes law?
- "The Right Way to Shrink Prisons"
- Still more notable commentary about Plata and its prisoner release order
- "Jerry Brown says state needs more time to implement Supreme Court prison ruling"
- California reports on its prison population plans after Plata
Lots of notable sentencing talk in big Eleventh Circuit opinion affirming big mortage fraud convictions
As detailed in this Atlanta Journal-Constitution article, an Eleventh Circuit panel yesterday "upheld the convictions and 28-year prison sentence against Atlanta real estate developer Phillip Hill, who prosecutors said oversaw a massive mortgage fraud scheme." The panel "also upheld all the convictions and sentences against eight of Hill's associates -- brokers, lawyers and recruiters."
The 163-page opinion in US v. Hill, No. 07-14602 (11th Cir. June 14, 2011) (available here), has lots of discussion of lots of sentencing issues. Among many interesting passages, these passages referencing carrots and sticks caught my eye:
Van Mersbergen contends that he was, arguing that he was deprived of due process because the district court threatened to punish the defendants at sentencing if they refused to agree to reasonable stipulations in order to expedite the trial proceedings.... If one considers a criminal defendant’s failure to stipulate to be the exercise of a constitutional right, it would seem that increasing a defendant’s sentence because of his failure to stipulate crosses the line. But some of the lines in this area are blurry....
In Roberts the Supreme Court held that a court could lengthen a defendant’s term of imprisonment by imposing consecutive instead of concurrent sentences because he had refused to cooperate in the investigation of another crime in which he was a confessed participant.... That those who fail to cooperate receive longer sentences than those who are equally culpable but do cooperate is an inevitable product of encouraging cooperation.
That principle is written throughout our criminal law. For example, the Supreme Court has held that it is entirely permissible for prosecutors to threaten a defendant with a harsher charge carrying a much longer sentence in order to pressure him into pleading guilty, and then carry through with the threat when the defendant has the temerity to insist on his constitutional right to trial....
A distinction might be drawn between the carrot and the stick, between rewarding a defendant for giving up rights to which he is entitled on one hand, and punishing him for refusing to give up those rights on the other. The argument against that distinction is that the result for the defendant is the same. If a defendant receives a sentence of 100 months because he went to trial while his equally culpable co-defendant gets 50 months because he cooperated by pleading guilty, is a stick being administered to the defendant or a carrot being given to the co-defendant?
Whatever may be said about the use of sticks, the law seems to be clear that he who receives a break has gotten a carrot, and there is nothing wrong with doling them out. And that is enough to decide this case. At trial, the district court sometimes expressed its sentiment regarding stipulations by indicating that cooperation would result in a lower sentence, and at other times by indicating that failure to cooperate would result in a higher one. At sentencing, however, there were only carrots — cooperation was rewarded all around.
June 14, 2011
"Clarence Thomas takes hard line on defendants"
The title of this post is the headline of this recent piece by Joan Biskupic appearing in USA Today. Here are excerpts:
During two decades as the court's most consistent conservative, he has taken a tough approach to criminal defendants' cases, showing a disdain for hard-luck tales of bad childhoods and a conviction that defendants accept responsibility. As several cases this term have shown, criminal law is one area in which Thomas — who almost never speaks during public court sessions — is making his mark. He often writes alone, yet with strong rhetoric that gets attention — particularly in light of his difficult background and professed concern for men who took the wrong path.
"When he steps in the shoes of people," says Stanford University law professor Jeffrey Fisher, "he's more likely to say tough-love is necessary and you have to take responsibility."...
Thomas is establishing a significant legacy on the law, notably on cases involving prisoners. This spring, he dissented alone when the court threw out a harsh re-sentencing order for an Iowa drug dealer who earlier had won leniency, entered rehabilitation and turned his life around. Thomas also wrote the court's opinion reversing a $14million civil rights judgment for a New Orleans death-row inmate whose prosecutors had concealed blood evidence that could have helped him prove his innocence. And Thomas wrote a recent opinion against a California convict who claimed his lawyer was ineffective because the jury was never told about his childhood brain injuries, abuse and deprivation. In that case, Thomas referred disapprovingly to an "infatuation with 'humanizing' the defendant."
"He certainly is the least compromising of the justices, in that he has strong views and is reluctant to temper them," says George Washington University law professor Orin Kerr, who like Fisher specializes in criminal cases. "The themes you see in his criminal law cases are the themes that you see elsewhere. He says, 'If you do wrong, you have to take the consequences.'"...
"Justice Thomas is probably the most conservative on matters related to crime and punishment, followed closely by Justice (Samuel) Alito" says Cornell law professor John Blume. He notes that Alito, who joined the court in 2006, is a former federal prosecutor. Thomas often separates himself from fellow justices with his lack of consideration for a defendant's plight. "Some of his opinions reveal a failure to appreciate the facts and circumstances of (a defendant's) life," Blume said, "and a myopic focus on the crime itself."
DC Circuit reverses above-guideline sentence for inadequate explanation
In an interesting sentencing ruling today in US v. Akhigbe, No. 10-3019 (DC Cir. June 14, 2011) (available here), involved the DC Circuit finding procedurally unreasonable the failure of a district court to adequately explain the basis for an above-guideline sentencing. Here is a key paragraph from the ruling:
In In re Sealed Case, we found plain procedural error where the district court imposed an above-Guidelines sentence “without providing any explanation at all” in open court and also submitted no written statement of reasons. Id. at 192–93 (indicating that the error was “obvious enough”). To be sure, the facts of this case are not quite so extreme, but we nonetheless believe that the district court’s oral and written statements are clearly insufficient. We thus conclude not only that the district court erred procedurally in sentencing, but also that its error was plain. In reaching this conclusion, we recognize that district courts necessarily and appropriately exercise professional judgment in determining how much reasoning to give when explaining discretionary sentencing decisions. In many cases, such as where the parties have presented only “straightforward, conceptually simple arguments” and the district court concludes a Guidelines sentence is appropriate, a fairly brief recitation of reasons will satisfy the court’s procedural obligations. Rita, 551 U.S. at 356–57. Moreover, although a district court must explain its decision to impose a non-Guidelines sentence with specificity and “ensure that the justification” for its sentence “is sufficiently compelling to support the degree of the variance,” Gall, 552 U.S. at 50, we do not ask the court to do the impossible and provide detailed reasoning as to why it chose, for example, to vary upward by 12 months rather than by 11 or 13. But under the circumstances of this case, where the district court imposed a sentence that varied significantly from both the advisory Guidelines range and from the sentences the parties sought, the brief and generalized explanation the court provided is plainly inadequate to satisfy section 3553(c)’s requirements.
"Evidence Disclosure and Severity of Punishments"
The title of this post is the title of this new paper by economist Evsen Turkay, which is forthcoming in the American Economic Journal. Here is the abstract:
The relationship between legal offenses and punishment is well studied by scholars of sociology, economics and law. Economists contend that punishment is a cost of committing an offense, hence an increase in the severity of punishments should decrease incentives to commit legal offenses. And the efficiency of legal punishments are studied generally from this perspective: giving efficient incentives to commit legal offense. This paper studies the relationship between punishment and evidence disclosure in a game theoretical model. A defendant is trying to persuade a judge by presenting evidence to take a favorable legal action rather than less favorable ones on his case.
I show that the equilibrium disclosure of the defendant is not affected by a change in the scale of legal actions when there is no uncertainty on how the judge evaluates evidence. With uncertainty, however, the defendant can be induced to disclose more information by decreasing the severity ratio of the most unfavorable legal action to the most favorable one. This shows that in the more realistic case of uncertainty the severity of punishments has an effect on evidence disclosure and efficiency of punishment schedule should be analyzed by internalizing its effect on evidence disclosure as well.
"Shorter prison time sought for abused women in NY"
The title of this post is the headline of this recent piece in the Wall Street Journal discussing an interesting sentencing bill in New York. Here are excerpts:
Kim Dadou spent 17 years in prison for manslaughter for shooting her boyfriend as he choked and threatened her in his car. She had called police several times before and used the gun he kept under the passenger seat to kill him. She was sentenced to 8 1/3 to 25 years, denied parole five times and released in 2008. Now, New York advocates for women prisoners are pushing legislation to cut sentences for domestic violence victims like Dadou, who strike back at abusers or get coerced into committing other crimes....
Bill supporters argue that abuse victims pose little threat to anyone other than their abusers. They acknowledge the resentencing measures won't pass this year but say the debate should start following a study from Cornell Law School and the Correctional Association that found limited leniency now for "survivor-defendants."
"It is the beginning of the battle," said Assemblyman Jeffrion Aubry, a bill sponsor who chairs the Assembly Committee on Correction. "We think there are mitigating issues here a judge ought to be able to consider in crafting a sentence."
The bills would give judges discretion to cut a sentence for first-degree manslaughter, for example, from five to 25 years to one to five years, or to probation with alternative programs.
Prosecutors said victims already get consideration with lesser charges, like manslaughter instead of murder, and lower sentences than others convicted of serious crimes. Also, most domestic violence victims don't commit violence. "We're trying to focus more on the front end" with efforts to jail abusers, said Franklin County District Attorney Derek Champagne, president of the state district attorneys' association. "There are times when it may not truly be self-defense."
Out of some 2,000 women in state prisons, fewer than 175 could have their sentences cut under Aubry's bill, according to the Correctional Association of New York, the study's co-author. However, more than 200 women are convicted every year for crimes directly related to their abuse and would be potentially eligible for alternate sentencing, said Tamar Kraft-Solar, director of the association's Women in Prison Project. They canvassed 49 other states, and New York would be the first to enact such a law, Kraft-Stolar said.
Under the legislation, judges could impose alternative sentences if they find the defendant was a domestic abuse survivor, the abuse was a "significant contributing factor" in the crime and the sentence under the general statute would be "unduly harsh." Some victims said it was not a simple matter of leaving an abuser. They said violence, threats and danger typically escalate when they threaten to leave and that children complicate any attempts to get out of the situation.
The report from Cornell's Avon Global Center for Women and Justice and the association's Women in Prison Project cited state parole statistics showing 80 percent of women sent to New York prisons for a violent felony in 2009 had no prior felony convictions. Of the 38 women convicted of murder and released between 1985 and 2003, not one returned to prison on a new crime in the next three years, the report found.
New York's 1998 sentencing reform, called "Jenna's Law," contained an exception for domestic violence victims from most tough fixed sentences for violent crimes. However, state Sentencing Commission reports a decade later noted the exception had been used only once, for a man who actually got a longer sentence that way.
The research report discussed in this article, which is available at this link, is titled "From Protection to Punishment: Post-Conviction Barriers to Justice for Survivor-Defendants in New York State."
Podcast on "Weinergate" over at RocketLawyer
Welcome back to the Legally Easy Podcast, presented by Rocket Lawyer. This week, we tackle the ongoing kerfuffle around Anthony Weiner’s lewd messages and the legal implications they’ve raised. Were his actions illegal or just inappropriate? Will he be removed from office? Has he learned the difference between a direct message and a public tweet? We talk to an expert to find out.
June 13, 2011
A notable example of a federal child porn offender getting probation sentence
Regular readers are familiar with persistent complaints about the severity of the federal child porn guidelines and the frequency with which federal judges impose below-guideline sentences in cases involving "mere" downloading of illegal images. But it still seems rare for a federal child porn offender, especially one who possessed a lot of illegal images, gets a federal sentence of probation. This local New Jersey story, however, seems to report on such a sentence:
A 20-year-old Paramus man was sentenced Monday to five years’ probation, including a year of home confinement, for possessing hundreds of images of child pornography on his computer.
Citing Justin Birdsall’s young age at the time of the offense and the views of two medical experts that he is not likely to repeat it, U.S. District Judge Dennis M. Cavanaugh agreed to spare him a prison term. Noting that some people believe those who collect child pornography should be locked up and the key thrown away, the judge said he hoped the sentence would “assist rather than cause a young life to spiral out of control.”
The judge said a distinction must be drawn between those who consume child pornography and those who produce it. He concluded that the sentencing guidelines and enhancements sought by the government were inappropriate in this case. “The defendant needs supervision and further psychological treatment, and I believe he’s going to get that,” Cavanaugh said, in sentencing Birdsall to a probationary term with house arrest.
Ridgewood attorney Susan C. Cassell implored the judge not to send her client to prison, arguing he has been punished enough by having a felony conviction that will follow him for rest of his life, having to register as a sex offender wherever he lives, and never being able to expunge his record.
Birdsall pleaded guilty in March, admitting he had more than 600 pornographic images featuring children on his home computer when he was arrested in December 2009. He was living with his parents and three younger siblings at the time. Agents found about 1,800 images and 74 videos of child porn that Birdsall admitted collecting since he was 17, the FBI said. Birdsall used a file-sharing program to download many of the images while he was attending college, said Assistant U.S. Attorney Ronnell L. Wilson.
Some of the images depicted children as young as 5 years old engaged in sexually explicit conduct, the prosecutor said. As a college student, Birdsall should have realized that images of children being raped are illegal, Wilson said. Birdsall had faced up to 10 years in prison and a $250,000 fine.
As a condition of probation, he will be confined to his home, with location monitoring, for one year, except to go to work, attend religious or community services, and pursue educational activities. He must also submit to computer monitoring, have limited contact with minors, register as a sex offender, and participate in a mental health program until discharged by the court.
Because the Third Circuit upheld a way-below-guideline child porn sentence in its big split Grober ruling, I suspect the government may not even bother to appeal this probationary sentence.
In memoriam: Professor David Baldus
I am saddened to learn from this post at The StandDown Texas Project that Iowa Law Professor David Baldus died early this morning. As StandDown spotlights, Professor Baldus "was known for his studies on race and the death penalty, especially his landmark work [which was at the center of] the 1986 Supreme Court case, McCleskey v. Kemp. He was the co-author of Statistical Proof of Discrimination (1980) and Equal Justice and the Death Penalty (1990)."
Thoughtful comments on the ugly ACCA bigger picture from an informed reader
A federal public defender today sent me a terrific e-mail about ACCA litigation, which he has allowed me to reprint in full below:
Between and among the various opinions written in Sykesand upon commentary found at SL&P and other places (i.e., the New York Times), I fear that a meaningful opportunity for more meaningful discussion is being missed.
The litigiousness of the Armed Career Criminal Act, as colorfully depicted by Justice Scalia, involves, invites, and permits all involved in the federal criminal justice system to approach the meaningful task of sentencing on "can't see the forest for the trees" terms. By this I start from the proposition that reasonable minds can surely disagree as to whether an armed recidivist like Sykes should properly receive a sentence of not more than 10 years (and, often, significantly less) or one of not less than 15 years (and, sometimes, slightly longer). But the proper and just resolution to such disagreements simply shouldn't turn doctrinally upon whether or not the Indiana crime (and, pursuant to the categorical approach, it is indeed the Indiana crime, rather than the crime that Sykes actually committed) of vehicular flight from an officer is or is not sufficiently similar to the crimes of burglary, arson, extortion, or explosives in terms of the kind and degree of purposeful risked harm at issue. To premise a significant decision involving literally years of a man's liberty, with the attendant cost attached to the deprivation of liberty, upon such minutia seems only slightly more principled than deciding between a sentence of A or a dramatically greater sentence of B upon the outcome of a game of rock-paper-scissors (the latter being a methodology less susceptible of frequent Supreme Court litigation than the ACCA).
The point here is not that Sykes is wrongly decided nor is it that the nuances of a defendant's prior criminality have no place at the figurative (and, for that matter, literal) sentencing table. Rather, the point is that premising punishment in substantial manners upon such fine lines seems inconsistent with the Section 3553(a) "parsimony" clause: if not more than 10 years is "sufficient" for Sykes if the Indiana crime is not violent, how does at least 15 years become "sufficient but no greater than necessary" simply upon the same Indiana crime being deemed "violent"?
And, as you know, the cited concern extends beyond statutory minimums to guideline application. A recidivist drug dealing client of mine is on the verge of signing a plea agreement that stands for either of two outcomes: (1) his post-acceptance number, prior to an anticipated reward for substantial assistance, will be 121 months; or (2) the relevant number will be 262! The more than double-down contingency has nothing to do with his federal offense, his personal characteristics, or even an actual assessment of his prior criminality. Instead, more than 10 pre-5K years of his life turn on whether or not a court's contemplation of note 1 to Section 4B1.2, with an attendant Shepard analysis of the relevant statute and underlying state court file, results in a finding that the client's 2001 conviction for "maintaining a drug trafficking place" in violation of Wisconsin law constitutes a "controlled substance offense" for purposes of career offender status. Comparable to Sykes, reasonable minds may differ as to whether my client should get 10 years or 22 years but contemplation of the meaningful matter should be more principled than it will be.
I wholly agree with this commentary and its justifiable consternation about the impact of criminal history diktats on federal sentencing outcomes. And, among other important insights, this commentary spotlights that detailed mandatory sentencing systems can often get bogged down pursuing a (false and confusing) form of highly formalized consistency based on the interpretation of opaque legal rules rather than staying focused on producing a (transparent and understandable) form of substantive punishment justice for each individual offender.
Some related recent posts on Sykes:
- SCOTUS gives wins to the prosecution in DePierre and Sykes
- Justice Scalia advocates radical(?) and justified(?) judicial activism to deal with vague ACCA provision
- If nothing else, ACCA merits credit for creating interesting coalitions of Justices
Three new criminal justice cert grants from SCOTUS
Thanks to the terrifically helpful live-blogging by the SCOTUSblog folks, I can provide this super-quick review of the three new cases involving criminal justice issues taken up today by the Justices:
Gonzalez v. Thaler, limited to following question: was there jurisdiction to issue a COA and adjudicate petitioner's appeal; was the application for a writ of habeas corpus out of time due to the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
Setser v. United States, [asking:] Does a District Court have the authority to order a federal sentence to run consecutive to an anticipated but not imposed state sentence? Is it reasonable for a district court to provide inconsistent instructions on how federal and state sentences interact?;
Smith v. Louisiana, the question involves cumulative error claims [in a capital case]. It seems fairly fact-bound.
Though one never knows how cases will evolve through briefing, argument and ruling, I doubt that any of these three new SCOTUS cases will be blockbusters. All three appear to deal with relatively narrow procedural issues arising in only a very limited set of cases.
States persist in resistance to Adam Walsh Act sex offender rules five years latter
This effective local article, headlined "Region resists fed sex offender rules," spotlights the continued resistance of many states to the federal rules for sex offender registries created by Congress in 2006 through the Adam Walsh Act. Here are excerpts:
Virginia, Maryland and the District are struggling to comply with a five-year-old federal mandate to create a national sex offender registry and critics say their failure could cause them to attract violent sex criminals to the region.
Despite two one-year extensions, only seven states have met the requirements of the Adam Walsh Act. With a final, July 27 deadline looming, some jurisdictions are scrambling to get in compliance. Maryland and Virginia have passed laws in recent years that keep better track of sex offenders through stricter reporting requirements. But lawmakers have been reluctant to require violent juvenile offenders to register for at least 25 years and aren't happy with being stuck with a multimillion-dollar tab, either....
"We've seen evidence that sex offenders move from one jurisdiction to another because they may not be as closely monitored," Linda Baldwin, who runs the U.S. Department of Justice office that determines whether states are compliant with the Walsh Act, told The Washington Examiner. "[The Adam Walsh Act] was designed to eliminate gaps and loopholes among states' sex offender registration regulations," she said. "Gaps and loopholes allow registered sex offenders to fall off the radar."
A major sticking point for many areas, including Maryland and D.C., is the federal requirement that youths 14 and older found guilty of a violent sex offense by the juvenile justice system be put on a sex offender registry for at least 25 years. The youth registry does not have to be public, but must be available to law enforcement agencies. "The existence of a permanent registry for young people may have a chilling effect on reporting [sex offenses]," Daniel Okonkwo, head of D.C. Lawyers for Youth, recently told the D.C. Council. "Families may be more reluctant to report abuses to avoid further court involvement."
The cost of implementing the Walsh Act has also slowed states' progress. Jurisdictions deemed by Baldwin's office to not have met the mandate by the deadline could lose 10 percent of a Justice Department grant that many states use to purchase equipment and provide training. The dollars at stake -- about $200,000 for D.C., and $500,000 for Maryland and Virginia each year -- often don't outweigh the costs of meeting the mandate. In Virginia, it could cost $10 million to fully implement the federal law. D.C. has not yet priced legislation introduced last month and cost isn't an issue in Maryland, which is nearly compliant.
At-large D.C. Councilman Phil Mendelson, who is "working on the bill," said "the cost of implementation is likely to exceed the dollars at risk, and the dollars at risk may evaporate with budget cuts in Congress." He added, "the idea that we might become a haven for sex offenders if we don't meet the requirements sounds like rhetoric to me."
This companion article, headlined "Trouble from the start with Walsh Act," starts this way:
A federal mandate to create a national sex offender registry passed by Congress left many states wondering whether it was necessary when it as passed in 2006.
The Adam Walsh Act was "an unfunded mandate and states were not part of the discussion when the bill was considered," said Susan Frederick, federal affairs counsel for the National Conference of State Legislatures. "We were told here's what we've done for you and we're not happy about that."
The result is that only seven states have met the law's requirements, some have given up entirely and others are scrambling to meet a July 27 deadline.
Georgia Supreme Court upholds again placing high burden on capital defendants to prove retardation
As detailed in this new AP article, "Georgia's top court has upheld the strict standard that capital defendants must meet to prove they are mentally disabled to avoid an execution." Here is more:
The Georgia Supreme Court's 6-1 ruling on Monday rejected a challenge brought by Alphonso Stripling, who claimed the state cannot seek the death penalty against him for the 1988 killings of two because he is mentally disabled. The court also concluded that the burden of proof is on Stripling, not the state.
Georgia became the first state in the nation to ban executing mentally disabled inmates. But it also is the only state that requires defendants to prove they are mentally disabled beyond a reasonable doubt....
A federal appeals court is considering a similar challenge.
The full opinion from the Georgia Supreme Court is available here, and this paragraph from the solo dissent provide a brief national overview on this issue:
Of the thirty states that impose the death penalty, twenty-two have adopted a preponderance of the evidence standard for proving mental retardation. Although Georgia led the nation in prohibiting the execution of mentally retarded offenders, it is now the only state that imposes a reasonable-doubt standard to prove mental retardation.
June 12, 2011
Might concerns about porn prosecutions and gun rights be impacting SCOTUS decision-making int he violent video game case?
As many SCOTUS watchers know, the Supreme Court has been taking a long time to hand down its ruling in Brown v. Entertainment Merchants Association, the California case concerning whether restrictions on the sale of violent video games to minors violates the First Amendment (the SCOTUSblog case page here provides lots of legal background). Because I am not a free speech maven, I have not been focused too much on the case. But, excerpts from this new effective UPI piece on EMA prompted for me the question in the title of this post:
California should find out any day now whether its law forbidding the sale of sometimes grotesquely violent video games to minors has survived a constitutional challenge in the U.S. Supreme Court. The central issues in the case, even on the surface, are pretty meaty.
- Whether the First Amendment allows restrictions on "offensive" content in violent video games sold to minors, and
- Whether the state law banning the sale of games with offensive images to children falls if it fails to pass "strict scrutiny," the toughest standard of review by the courts.
Beyond those core questions, however, the case raises issues about the type of society we are building. There would be no question about the constitutionality of the law if it restricted the sale of sexual images to minors, as opposed to violent ones. California asks, why the difference?
Do violent, sometimes outlandishly violent games viewed by children contribute to the growing coarseness and danger in American society? Some medical specialists believe that it does. But when government imposes censorship, no matter how valid the reasons, does it clamp a "chill" on types of expression far beyond the targeted speech? Media groups supporting the challenge say that it does....
California told the Supreme Court in a brief that in enacting the law the "Legislature sought to reinforce the right of parents to restrict children's ability to purchase offensively violent video games. In doing so, the Legislature considered numerous studies, peer-reviewed articles and reports from social scientists and medical associations that establish a correlation between playing violent video games and an increase in aggressive thoughts and behavior, anti-social behavior and desensitization to violence in both minors and adults."...
A federal judge, citing the First Amendment and using "strict scrutiny," declared the state law unconstitutional and issued a permanent injunction barring its implementation. Violence cannot be considered unprotected speech under the First Amendment without the element of sex, the judge said, even when the restriction is applied to minors....
Rather than strict scrutiny, California wants the Supreme Court to review the law under the standard set by 1968's Ginsberg vs. New York: "Under the Ginsberg standard, the act must be upheld so long as it was not irrational for the California Legislature to determine that exposure to the material regulated by the statute is harmful to minors." In addition, "The First Amendment does not require states to demonstrate proof of a direct causal link between violent video game play and harm to minors," California said in its brief. Instead, even under strict scrutiny, "a proper application of this level of review requires that the state Legislature draw reasonable inferences based on substantial evidence."
The linkages (and/or jurisprudential lines of demarcation) within the First Amendment regarding violence and sexuality are clearly raised by this case: what SCOTUS says about the regulation of minors and images of violence surely could impact regulations concerning minors and images of sexuality. Throw in the impact of modern technology and new forms of communication (e.g., sexting involving minors and/or Weiners), and it seems likely that some Justices may be thinking about how the Court's ruling and dicta in EMA could impact porn regulations and prosecutions.
The issue of gun rights and nascent Second Amendment jurisprudence may not seem directly in play in Brown v. EMA, but the arguments being made by California to support regulations on violent video games appear quite parallel to arguments often made to justify gun restrictions of all sorts. Supporters of gun control often point to "numerous studies, peer-reviewed articles and reports from social scientists and medical associations that establish a correlation between [access to firearms] and an increase in aggressive thoughts and behavior [and violent and] anti-social behavior." If this kind of "substanital evidence" of potential harms to kids enables a speech regulation to survive strict scrutiny under the First Amendment in EMA, advocates of gun control will surely be quick cite similar "substantial evidence" in support gun myriad regulations despite Second Amendment limits. In the wake of Heller and McDonald, it seems likely that some Justices may be thinking about how the Court's ruling and dicta in EMA could impact gun rights and regulations.
Lots to good reasoning on crime and punishment at Reason
A few helpful readers have pointed me to a few different notable new pieces in the July issue of Reason magazine. That issue is a special one with the over title "Criminal Injustice: Inside America's National Disgrace." Reasoneditor-in-chief Matt Welch provides an effective introduction to this issue, titled "The Ends Didn’t Justify the Means: Our complicity in the devastating war on crime," which starts this way:
At the first presidential debate of the 2012 campaign, former New Mexico Gov. Gary Johnson implored Republican voters to conduct a “cost-benefit analysis” of the criminal justice system. “Half of what we spend on law enforcement, the courts, and the prisons is drug related, and to what end?” Johnson asked a South Carolina audience in May. “We’re arresting 1.8 million a year in this country; we now have 2.3 million people behind bars in this country. We have the highest incarceration rate of any country in the world. I would ask people to look at this issue; see if they don’t come to the same conclusion that I did, and that is that 90 percent of the drug problem is prohibition-related.”
The ends of justice, Johnson argues, have not justified the means of prosecution. This issue of reason is a detailed brief in support of that thesis. A system designed to protect the innocent has instead become a menagerie to imprison them. A legal code designed to proscribe specific behavior has instead become a vast, vague, and unpredictable invitation to selective enforcement. Public servants who swear on the Constitution to uphold the highest principles of justice go out of their way to stop prisoners from using DNA evidence to show they were wrongly convicted. Even before you start debating the means of the four-decade crackdown on crime and drugs, it’s important to acknowledge that the ends are riddled with serious problems.
And here are the three major article that follow this introduction in the magazine:
- "Prison Math: What are the costs and benefits of leading the world in locking up human beings?"
- "Locked Up, Locked Out: The social costs of incarceration"
- "Wrongful Convictions: How many innocent Americans are behind bars?"
The "social costs" article, authored by Harvard sociology Professor Bruce Western, includes these important insight:
Do prisons make us safer? By taking would-be offenders off the streets, prisons clearly have reduced crime in the short run. In the long run, though, imprisonment erodes the bonds of work, family, and community that help preserve public safety.
Three effects are fundamental. First, former prisoners do worse economically than if they had never been incarcerated. We can see some evidence in a study I conducted in 2004 with the Princeton sociologist Devah Pager. We ran an audit experiment that sent trained testers to apply for more than 1,000 entry-level jobs throughout New York City. The fake job applicants were dressed similarly, gave similar answers, and provided résumés with identical education and work experience. At each job interview, however, one randomly chosen tester would tick the application box indicating a criminal record and submit a résumé that mentioned a prison and provided a parole officer as a reference.
White testers who were assigned a criminal record received call-backs or job offers from employers only half as often as testers with clean records. For African Americans, a criminal record reduced employment opportunities by two-thirds. Labor force data from the National Longitudinal Survey of Youth paint a similar picture of incarceration’s negative effects: Wages fall by about 15 percent after prison, yearly earnings are reduced by about 40 percent, and the pay of former prisoners (unlike compensation for the rest of the labor force) remains stagnant as they get older.
The second important effect of imprisonment falls not on ex-inmates but on their families. About half of all prison and jail inmates are parents with children under 18. By 2008 about 2.6 million children had a parent in prison or jail. By age 17, one in four African-American youth has a father who has been sent to prison.
Because of their poor job prospects, formerly incarcerated fathers are less able to contribute financially to their families. Because incarceration strains marital relations, those fathers are also less involved as parents. Compared to otherwise similar kids whose parents haven’t been behind bars, the children of incarcerated parents are more likely to be depressed, behave aggressively, and drop out of high school. These problems appear to be more common for boys than girls. Incarceration, it seems, is weakening the bonds between fathers and sons.
The third important effect of incarceration is cultural, shaping how the institutions of law and order are viewed in high-crime/high-incarceration neighborhoods. The prison population is drawn overwhelmingly from low-income inner-city areas whose residents come to associate police and the courts with the surrounding social problems of violence and poverty. Police are viewed as unhelpful, and often unaccountable, contributing to what the Harvard sociologist Robert Sampson calls “legal cynicism” in troubled, crime-ridden neighborhoods.
"Medicine and the Epidemic of Incarceration in the United States"
The title of this post is the title of this short "perspective" piece appearing in The New England Journal of Medicine. Though much of the ground covered by the piece will be familiar to regular readers of this blog, I thought these passages added some new data to the usual discussions of mass incarceration:
The largest facilities housing psychiatric patients in the United States are not hospitals but jails. More than half of inmates have symptoms of a psychiatric disorder as defined by the Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSMIV), and major depression and psychotic disorders are four to eight times as prevalent among inmates as in the general population — yet only 22% of state prisoners and 7% of jail inmates receive mental health treatment while incarcerated....
Substance use and dependence are highly prevalent in the incarcerated population. More than 50% of inmates meet the DSMIV criteria for drug dependence or abuse, and 20% of state prisoners have a history of injection drug use. Up to a third of all heroin users — approximately 200,000 — pass through the criminal justice system annually. With growing numbers of drug users in correctional facilities, the prevalence of infectious diseases has increased correspondingly. As many as a quarter of all Americans infected with HIV and one in three with hepatitis C pass through a correctional facility each year. Chronic noninfectious diseases are also disproportionately prevalent in correctional facilities.