June 25, 2011
"Gov. Brownback starts faith-based program for parolees"
The title of this post is the headline of this new article discussing an interesting initiative by the Governor of Kansas to improve reentry services. Here is how it starts:
Kansas needs 5,000 volunteer mentors a year for paroled criminals, Gov. Sam Brownback said this week. He spoke Monday in Wichita at the launch of an effort to merge government resources, social services, churches, businesses and mentors to keep parolees from returning to prison.
He announced the Out4Life faith-based program at the start of three days of workshops in which service providers and others discussed re-entry approaches. The Kansas Department of Corrections will work with Prison Fellowship, a Christian group that created Out4Life about two years ago.
Brownback said he wants a mentor for each released criminal. “What we’re asking is for people of heart in all faiths and people of goodwill to come forward and help us out with this,” he said. “We get it right, the cost to the state goes down, crime goes down in the state.”
Kansas officials say they release about 5,000 inmates a year and about 40 percent of them will return to prison within three years.
As states struggle to offset budget cuts to their re-entry programs, Kansas becomes the 13th state to adopt the program, officials said. “As the states have cut back,” said Pat Nolan, a vice president with the Prison Fellowship, “Out4Life is a way of calling the community and the private sector to come alongside government.”
Alex Luchenitser, a lawyer with Americans United for Separation of Church and State, said such programs might coerce people into religion and cut out those who resist. “The states need to provide nonreligious re-entry programming that all inmates can comfortably take part in,” he said.
Nolan said, “We give them the goodness of the gospel,” but people do not have to accept it to get help with finding jobs, housing, substance abuse treatment and supportive relationships. “The mentoring is by far the most effective part,” he said. “A lot of these inmates have never had an adult in their life worth looking up to.”
June 24, 2011
To resist capital prosecution, RI's Gov refusing to turn murderer over to feds
A real interesting federalism-and-the-death-penalty story is now brewing in Rhode Island, as detailed in this new local article headlined "Chafee refuses to give suspect to feds." Here are the basics:
Governor Chafee is refusing to turn over a suspected murderer in state custody to the federal government, declaring that doing so would expose prisoner Jason Wayne Pleau to the death penalty, a penalty he says has been “consciously rejected” by Rhode Island, even for the most heinous of crimes.
In a letter dispatched to U.S. Attorney Peter F. Neronha Thursday afternoon, Chafee said he is not going to allow the transfer of Pleau, who has been accused of robbing and killing gas station manager David D. Main as he prepared make a deposit at a Citizens Bank branch in Woonsocket on Sept. 20.
If prosecuted in the federal system, Pleau would fall under the Hobbs Act, in which conspiracy and robbery can be punishable by life imprisonment or death if a firearm was used in a crime that results in death.
In his letter, Chafee said his rejection of the federal request “should in no way minimize the tragic and senseless nature of Mr. Main’s murder,” and declared that “the person or persons responsible for this horrific act must, and will, be prosecuted and punished to the full extent of the law. I extend my deepest sympathy to Mr. Main’s family for their unspeakable loss.”
At the same time, he said Rhode Island would not impose the death penalty. “In light of this long-standing policy, I cannot in good conscience voluntarily expose a Rhode Island citizen to a potential death-penalty prosecution. I am confident that Attorney General [Peter F.] Kilmartin and Rhode Island’s criminal justice system are capable of ensuring that justice is served in this matter.”
Chafee has been a longtime opponent of capital punishment. In an August 2006 debate with Cranston Mayor Steven Laffey, Chafee was asked if he would support the death penalty for Osama bin Laden if he were caught and convicted of masterminding the Sept. 11, 2001, attacks. “It’s a highly emotional issue,” he said. “Rhode Island executed an innocent man in the 19th century, and I oppose the death penalty.”...
Jarad Goldstein, a professor of constitutional law at Roger Williams University, said it’s possible Chafee was within his legal rights to turn down the request, given that the federal government didn’t get a court order that would have mandated it be given custody, but made the request under another agreement that allows states to request an interstate retainer.
“This agreement gives each state the discretion to decline a request from another state. It may be that the state is within its rights, though it is still not clear to me whether a state can decide not to turn over a defendant because it disagrees with the federal policy,” Goldstein said. “Usually, federal law trumps state policy but, in this case, I think an argument can be made either way.” Goldstein said the federal prosecutors could get an order from a federal judge that state officials could not ignore.
Jim Martin, a spokesman for the U.S. Attorney, said Neronha was faxed a copy of Chafee’s letter prior to his getting a plane to Rhode Island after attending a daylong conference in Washington. He said Neronha told him that his office plans to “move forward with the prosecution” and had other ways of gaining custody....
Ironically, Pleau’s case came up last year as an example of competing federal-state jurisdictions. At a program at the Roger Williams University School of Law in November 2010, Neronha and then-Attorney General Patrick C. Lynch used the case — the killing had occurred just about two weeks before — as an example of competing state and federal interests.
Lynch and Neronha said they would review cases to determine which office had stronger case and better chance to win. Sometimes, state or federal law allows more leeway, or permits more evidence for a particular type of crime, they said, and sometimes the greater sentence available was a factor.
With Pleau, Rhode Island had an interest in the murder of one of its citizens, Lynch said, and one of the defendants in the case had a suspended sentence for a previous state conviction. Neronha said the federal government had traditionally taken an interest in crimes involving banks. “Banks are important to the United States,” he said. “People who use them are important to the United States.”
Some additional layers to this interesting story comes from this follow-up local report, headlined "Man Chafee shielded from death penalty plans guilty plea," which reports these details about how the defendant hopes this case will get resolved:
A day after Governor Chafee, citing a possible federal death penalty, refused to hand murder suspect Jason W. Pleau over to U.S. authorities, Chafee's office on Friday released a letter from the public defender stating that Pleau wants to plead guilty in return for a sentence of life with no parole.
John J. Hardiman, public defender, notified assistant state Attorney General Randall White of the development on May 17, according to a copy of Hardiman's letter supplied by the governor's office. On Thursday Chafee rejected the U.S. Government's request for temporary federal custody of Pleau, who is charged with murder in the case of a Woonsocket gas station owner killed on the steps of a bank.
And the headline of this additional local story highlights yet another element of, and perspective on, this interesting case: "Murdered man's family 'outraged' at gov"
Conrad Black has more federal time to do after resentencing
As detailed in this Reuters piece, which is headlined "Ex-media mogul Conrad Black sent back to prison," today's highest-profile federal sentencing did not result in merely a time-served outcome. Here are the particulars:
A U.S. judge on Friday ordered former media baron Conrad Black to serve 13 more months in prison for his fraud and obstruction of justice conviction. Judge Amy St. Eve of U.S. District Court, who sentenced Black to 6-1/2 years following his 2007 trial, ordered the 66-year-old member of Britain's House of Lords to serve a total of 42 months, of which 29 months has already been served.
Black's wife, Barbara Amiel Black, collapsed immediately after St. Eve ruled, and was assisted out of the courtroom by medical personnel. Black was released from prison in July 2010 based on a successful appeal to the U.S. Supreme Court. The high court narrowed the scope of the federal honest services law used to help convict him.
St. Eve said she took into accounts letters from inmates who had served time with Black, which said he had tutored and mentored them. But she said she also took into account the harm Black did to shareholders of Hollinger International, the media company he had controlled. "You had a duty of trust. The shareholders put their trust in you. And you violated that trust," St. Eve said. She said the sentence would "send a message to executives in your position to show respect for the law."...
Black was convicted of scheming with partner David Radler and other executives to siphon off millions of dollars in proceeds from the sales of newspapers as they unwound Hollinger International, then the world's third-largest publisher of English-language newspapers. It once operated the Chicago Sun-Times, the Jerusalem Post, London's Daily Telegraph and dozens of other newspapers across North America.
Eleventh Circuit panel rules FSA's lower crack terms apply to defendants sentenced after enactment
Big ruling on crack sentencing today from the Eleventh Circuit on an issue that has divided district courts and is starting to see numerous circuit courts weigh in. Here is how the opinion in US v. Rojas, No. 10-14662 (11th Cir. June 24, 2011) (available here).
The issue in this appeal is whether the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372 (2010), applies to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter. We conclude that it does.
In May 2010, Carmelina Vera Rojas pleaded guilty to one count of conspiring to possess with the intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and two counts of distributing 5 grams or more of cocaine base, in violation of § 841(a)(1). Her sentencing was scheduled for August 3, 2010, which as it so happened, was the date on which President Obama signed the FSA into law. The district court granted the parties a continuance to determine whether Vera Rojas should be sentenced under the FSA. After considering the parties’ arguments, the district court concluded that the FSA should not apply to Vera Rojas’s offenses; in September 2010, the court sentenced Vera Rojas to ten years’ imprisonment.
On appeal, Vera Rojas argues that the district court erred in refusing to apply the FSA to her sentence. Because she had not yet been sentenced when the FSA was enacted, Vera Rojas believes that she should benefit from the FSA’s provision raising the quantity of crack cocaine required to trigger a ten-year mandatory minimum sentence. Further, Vera Rojas contends that the FSA falls within recognized exceptions to the general savings statute, 1 U.S.C. § 109. Relying in large part on the general savings statute, the government contends that Congress’s omission of an express retroactivity provision requires that the FSA be applied only to criminal conduct occurring after its August 3, 2010, enactment. We conclude that the FSA applies to defendants like Vera Rojas who had not yet been sentenced by the date of the FSA’s enactment. The interest in honoring clear Congressional intent, as well as principles of fairness, uniformity, and administrability, necessitate our conclusion. Accordingly, we reverse and remand to the district court for re-sentencing.
Some posts on this FSA pipeline issue:
- Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?
- Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases
- Notable new letter to AG Eric Holder concerning application of the FSA
- Adding my two cents concerning application of the FSA to pending cases
- A few more thoughts on applying the FSA to not-yet-sentenced defendants
- Federal sentencing litigation at its absolute finest
- New USDC opinion applying new FSA law to not-yet-sentenced defendants
- WSJ notes dispute over application of FSA to pending cases
- A (partial) account of deep split over application of FSA's new statutory terms to pipeline cases
- Second Circuit demands application of old 100-1 crack mandatories ... with laments
- Seventh Circuit rejects FSA's application to defendants sentenced after it changed crack statutes
- Dissenting from denial of en banc review, Judge Williams makes strongest case for applying FSA to pipeline cases
- First Circuit affirms Douglas, holding lower FSA crack minimums apply in pipeline cases
Sentencing meets the First Amendment in DC Circuit material witness ruling
An interesting issue of sentencing proceedure, victims' rights and the First Amendment is addressed today by a DC Circuit panel in US v. Brice, No. 10-3079 (DC Cir. June 24, 2011) (available here). Here is how the opinion starts:
Jaron Brice was a pimp who prostituted under-age girls, among others. He was convicted of various federal sexual abuse crimes, and he was sentenced to 25 years in prison. At his sentencing hearing, the District Court referred to sealed material witness proceedings concerning two victims of Brice’s activities. After sentencing, Brice asked the District Court to unseal the records of those two material witness proceedings. The District Court denied the request. Brice appeals that denial, claiming that the First Amendment guarantees a right of access to material witness proceedings. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564-80 (1980). We assume arguendo that the qualified First Amendment right of access to judicial proceedings extends to material witness proceedings. Even so, under our First Amendment access precedents, the public was not entitled to the records here, which contained “substantial amounts of material of an especially personal and private nature relating to the medical, educational, and mental health progress” of the victims. United States v. Brice, Nos. 05-405 & 05-406, slip ops. at 2 (D.D.C. Aug. 6, 2010) (orders denying motions to unseal); see Washington Post v. Robinson, 935 F.2d 282, 290 (D.C. Cir. 1991). We affirm the orders of the District Court
Any predictions for Conrad Black's federal resentencing?
As effectively detailed in this National Post piece, the high-profile trial, sentencing, appeals and now resentencing comes to an end today in a federal district court in Chicago. Here is the backstory:
Today, Lord Black, 66, returns to Judge St. Eve’s courtroom in the Everett McKinley Dirksen Federal courthouse, where the trial judge will mete out a new punishment for his diminished slate of convictions. It is widely expected to be a more lenient sentence than the 78-month prison term in a U.S. federal minimum-security penitentiary in Florida, where she dispatched him in March, 2008.
Still, it won’t be the complete vindication he sought — and promised — since his legal ordeal began six years ago. Instead, in the wake of a partial victory at the U.S. Court of Appeals for the Seventh Circuit, the former international press baron now faces the stark prospect of returning to prison for a shorter stint, or deportation from the United States.
“This was going to be the capstone for this U.S. Attorney’s office efforts to fight white-collar crime. And instead of the big bang, this is a case that is hanging on by its fingernails on the fraud charges,” observed Hugh Totten, a Chicago-based criminal lawyer who monitored the case closely.
Given that U.S. prosecutors originally sought a jail term of between 24 to 35 years after his 2007 convictions on three counts of mail and wire fraud and one count of obstruction of justice – he wound up with 6½ years – it would seem reasonable to anticipate the federal judge won’t likely force Lord Black back to the Coleman Federal Correctional Complex to complete his term, as the U.S. government has strenuously urged.
Rather, some legal experts expect Judge St. Eve, who presided over the four-month criminal trial, to follow the guidelines set out in a pre-sentencing report by the U.S. Probation department, which recommends a term of between 33 to 41 months. If that happens, Lord Black can claim victory, since his lawyers have argued for time served based on the 29 months he’s already served plus a three-month credit for good behaviour.
“No way he’s going back to jail with that PSR [pre-sentencing report],” predicts Jacob S. Frenkel, a criminal lawyer and former U.S. attorney based in Potomac, MD. “There will be a lot of posturing and bluster, which will have no effect on the judge. The bottom line is that she has made up her mind and the hearing is to go through the motions to give him credit for time served and wrap this thing up as far as the court is concerned.”
Others, such as Chicago lawyer Andrew Stoltmann, disagree: “Conrad Black is heading back to serve the entirety of the rest of his term,” he wrote in an e-mail. “While U.S. District Judge Amy St. Eve has some discretion in overturning the ruling, Black has many factors working against him.”
Most expect there will be passionate arguments before the judge, but few surprises. Sentencing hearings are generally brief because most of the reasonings have been laid out in court submissions filed by both sides weeks ago.
If Judge St. Eve decides to release Lord Black from prison for time served, as his lawyers have requested, she could still attach any number of conditions, including probation time and fines. In that case, the Canadian-born media baron who famously relinquished his Canadian citizenship to become a British peer in 2001, would be arrested by the U.S. Immigration department and become subject to deportation proceeding....
In court filings, U.S. prosecutors have practically begged Judge St. Eve to send Lord Black, who once controlled the world’s third largest English-language newspaper empire including the National Post, back to Coleman to complete his 78-month sentence noting his defiance and lack of remorse.
Even after acknowledging the former businessman was a model prisoner, prosecutors still attempted to portray him as a haughty inmate unworthy of release by filing contradictory testimony from Coleman prison staff alleging Lord Black “demanded special treatment” and was a lax tutor, even though the same employees described him as “not intimidating or condescending” and “always polite and respectful” in prison progress reports and to the probation officer.
The unflattering depictions of Lord Black outlined in the sworn testimony from prison staff “are not allegations Black will want hanging over his head going into the re-sentencing,” said Mr. Frenkel, because the Supreme Court noted that Lord Black’s behaviour while in prison and on bail could be factored into re-sentencing.... To support his case for a full release, there are 18 letters from former prison inmates and staff espousing Lord Black’s positive contributions to prison life.
The Montreal-born businessman, who was released on bond last July pending his appeals, and three other Hollinger International Inc. executives were convicted in 2007 of misappropriating US$6.1-million in the form of non-competition payments. Lord Black was also found guilty of obstruction of justice for removing 13 boxes from his Toronto head office during the U.S. government’s investigation in 2005.
UPDATE: As reported in this new post, Black ended up getting 42 months of imprisonment at his resentencing, and thus he now has 13 months left to serve in the federal pen.
"Gaming the System: How the Political Strategies of Private Prison Companies Promote Ineffective Incarceration Policies"
Over the past 15 years, the number of people held in all prisons in the United States has increased by 49.6 percent, while private prison populations have increased by 353.7 percent, according to recent federal statistics. Meanwhile, in 2010 alone, the Corrections Corporation of America (CCA) and the GEO Group, the two largest private prison companies, had combined revenues of $2.9 billion. According to a report released [this week] by the Justice Policy Institute (JPI), not only have private prison companies benefitted from this increased incarceration, but they have helped fuel it.
Gaming the System: How the Political Strategies of Private Prison Companies Promote Ineffective Incarceration Policies, examines how private prison companies are able to wield influence over legislators and criminal justice policy, ultimately resulting in harsher criminal justice policies and the incarceration of more people. The report notes a “triangle of influence” built on campaign contributions, lobbying and relationships with current and former elected and appointed officials. Through this strategy, private prison companies have gained access to local, state, and federal policymakers and have back-channel influence to pass legislation that puts more people behind bars, adds to private prison populations and generates tremendous profits at U.S. taxpayers’ expense.
“For-profit companies exercise their political influence to protect their market share, which in the case of corporations like GEO Group and CCA primarily means the number of people locked up behind bars,” said Tracy Velázquez, executive director of JPI. “We need to take a hard look at what the cost of this influence is, both to taxpayers and to the community as a whole, in terms of the policies being lobbied for and the outcomes for people put in private prisons. That their lobbying and political contributions is funded by taxpayers, through their profits on government contracts, makes it all the more important that people understand the role of private prisons in our political system.”
Paul Ashton, principle author of Gaming the System, noted, “This report is built on concrete examples of the political strategies of private prison companies. From noting campaign donations, $835,514 to federal candidates and $6,092,331 to state-level candidates since 2000, to the proposed plan from Ohio Governor John Kasich to privatize five Ohio prisons followed by the appointment of a former CCA employee to run the Department of Rehabilitation and Corrections, Gaming the System shows that private prison companies’ interests lie in promoting their business through maintaining political relationships rather than saving taxpayer dollars and effectively ensuring public safety.”...
If states and the federal government are interested in providing cost-effective, proven public safety strategies, investments in private prison companies will not help achieve that goal. Gaming the System includes a number of recommendations for criminal justice policies that are cost-effective and will improve public safety:
- States and the federal government should look for real solutions to the problem of growing jail and prison populations. A number of states are already utilizing innovative strategies for reducing the number of people behind bars in their state. Reducing the number of people entering the justice system, and the amount of time that they spend there, can lower prison populations, making private, for-profit prisons unnecessary, and improving public safety and the lives of individuals.
- Invest in front-end treatment and services in the community, whether private or public. Research shows that education, employment, drug treatment, health care, and the availability of affordable housing coincide with better outcomes for all people, whether involved in the criminal justice system or not. Jurisdictions that spend more money on these services are likely to experience lower crime rates and lower incarceration rates. An increase in spending on education, employment and other services not only would improve public safety, but also would enhance and enrich communities and individual life outcomes.
- Additional research is needed to effectively evaluate the cost and recidivism reduction claims of the private prison industry. With conflicting research on both the cost savings and recidivism reduction of private prisons, additional research is needed to determine the accuracy of such claims. Moreover, a clearer dialogue surrounding the difficulties of comparative research between private and public facilities would also be beneficial in providing a better understanding of the implications of prison privatization.
June 23, 2011
Ron Paul and Barney Frank introduce bill to let states set pot policy
As explained in this CNN piece, a federal bill introduced on Thursday reveals that "Republican presidential candidate Ron Paul and outspoken Massachusetts Democrat Barney Frank want to get the federal government out of the marijuana regulation business." Here is more:
The bill would allow the Feds to continue enforcing cross-border or inter-state smuggling, but states would set their own laws, and people could grow and sell marijuana in places that choose to make it legal.
The bill is, of course, a longshot. But making it a law isn't the whole point, according to Morgan Fox, communications manager at the Marijuana Policy Project. "A bill like this is going to get talked about quite a bit," Fox said. "I think it will spark a strong debate in the media, and we hope to get some [House] floor time for it."
The bill is co-sponsored by Democratic Reps. John Conyers of Michigan, Steve Cohen of Tennessee, Jared Polis of Colorado and Barbara Lee of California.
The bill's introduction comes 40 years after the United States began its "war on drugs" and just a few days after former President Jimmy Carter wrote an op-ed in the New York Times titled "Call Off the Global Drug War."... Meanwhile, Ron Paul's status as a declared candidate for the presidency is likely to bring attention to the bill.
Via google news, one can see that this story is getting lots of hits and already generating a buzz --sorry, I could not resist some wacky weed wordplay -- but this effective post at The Volokh Conspiracy reports that House Judiciary Committee Chairman Lamar Smith has already said his panel would not consider the bill. I guess he is just another one of those big federal government Republicans.
Some recent related posts:
- Why is the Obama Administration now talking up federal prosecutions of state medical marijuana providers?
- 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
- Jimmy Carter says "Call Off the Global Drug War"
- Judge Davis laments drug war's damage and costs in concurrence requiring LWOP for druggie
- Oregon Supreme Court says federal law does not allow denial of local gun permits for state marijuana users
- "Backers of Legal Marijuana Find Silver Lining in Defeat of California Measure"
Another take on the consequences of SCOTUS crack retroactivity work in Freeman
A thoughtful reader sent me and allowed me to post here his take on today's Freeman ruling by the Supreme Court (basics here, opinion here), which seeks to counter my first-cut, from-the-gut reaction that that because of the 4-1-4 split of the Justices "few other defendants will benefit from [Freeman's] win." Here is that take:
In Freeman v. U.S., (plurality opinion) (available here), the Supreme Court reversed the Sixth Circuit’s ruling that a defendant who entered into a Rule 11(c)(1)(C) plea agreement was ineligible for a reduction of sentence under 18 U.S.C. § 3582(c)(2) based on a retroactive amendment to the Sentencing Guidelines that lowered the Guideline range.
The plurality reasoned that because, even in cases where the sentence imposed varies from the Guideline range, a sentencing judge is required to consider the Guidelines when deciding whether to accept and impose the specific sentence agreed upon by the parties in an 11(c)(1)(C) plea, an 11(c)(1)(C) sentence is "based on" the Guidelines. Because § 3582(c)(2) applies in cases when a sentence was "based on" a subsequently amended Guideline range, an 11(c)(1)(C) defendant is therefore eligible for § 3582(c)(2) relief.
[Note: Justice Sotomayor provided the decisive fifth vote in a separate concurrence, based on different grounds from the plurality opinion: Justice Sotomayor concluded that Freeman was entitled to § 3582(c)(2) relief because his plea agreement expressly provided that his sentence was based on the Guidelines. Justice Sotomayor stated that in the future, "[n]othing prevents the Government from negotiating with a defendant to secure a waiver of his statutory right to seek sentence reduction under § 3582(c)(2), just as it often does with respect to a defendant’s rights to appeal and collaterally attack the conviction and sentence." In the future, citing Marks v. U.S., 430 U.S. 188, 193 (1977), the government may invoke Justice Sotomayor’s concurrence (and her view that § 3582(c)(2) rights are waivable) as expressing Freeman’s holding, on the ground that her concurrence expressed the "narrowest grounds" for the decision.
The Supreme Court, however, has questioned Marks. See, e.g. Nichols v. U.S., 511 U.S. 738, 745 (1994) (declining to follow Marks’ approach). The "narrowest ground" approach is arguably inapposite in cases like Freeman, where, as Justice Sotomayor’s concurrence states, the conclusions "differ as to the reason why," that is, the rationales for the plurality and the concurrence are not "nested" within one another like "Russian dolls." See Note, Plurality Decisions in the Supreme Court of the United States, A Reexamination of the Marks Doctrine After Rapanos v. United States, 41 Suffolk U. L. Rev. 97, 113 (2007) (citing King v. Palmer, 950 F.2d 771, 781-82 (D.C. Cir. 1991) (en banc)). Arguably, in cases like Freeman, "lower courts should treat plurality decisions as binding only for the result that a majority of the court would support based on their stated rationales." Id. at 130 (citing Rapanos v. U.S., 547 U.S. 715, 810 (2006) (Stevens, J., dissenting). In Freeman, the majority agreed only to reject the dissenters’ view that 11(c)(1)(C) defendants are categorically ineligible for § 3582(c)(2) relief. Whether some of these defendants might be ineligible on the separate grounds stated by Justice Sotomayor (because there is no mention of Guidelines in their plea agreement, or because there is an express waiver of § 3582(c)(2) in their plea agreements) remains an open question.]
Lengthy new article/study on the costs of California's capital system now available
Regular readers likely recall this post from earlier this week reporting on news reports of a forthcoming law review article that examined state, federal and local expenditures for California capital cases over three years and estimated that the additional costs of capital trials, enhanced security on death row and legal representation costs California's $184 million each year.
A helpful reader has now sent me this link to the now available full text of the 184-page article by Judge Arthur L. Alarcón and Paula M. Mitchell titled "Executing the Will of the Voters: A Roadmap to Mend or End the California Legislature's Multi-Billion-Dollar Death Penalty Debacle." Here is the full abstract from the piece:
Since reinstating the death penalty in 1978, California taxpayers have spent roughly $4 billion to fund a dysfunctional death penalty system that has carried out no more than 13 executions. The current backlog of death penalty cases is so severe that most of the 714 prisoners now on death row will wait well over 20 years before their cases are resolved. Many of these condemned inmates will thus languish on death row for decades, only to die of natural causes while still waiting for their cases to be resolved. Despite numerous warnings of the deterioration of California’s capital punishment system and its now imminent collapse, the Legislature has repeatedly failed to enact measures that would improve this death row deadlock. At the same time, voters have continued to expand the death penalty through the direct voter initiative process to increase the number of death-eligible crimes.
This Article uncovers the true costs of administering the death penalty in California by tracing how much taxpayers are spending for death penalty trials versus non–death penalty trials and for costs incurred due to the delay from the initial sentence of death to the execution. In addition, the Article examines how the voter initiative process has misled voters into agreeing to the wasteful expenditure of billions of dollars on a system that has been ineffective in carrying out punishment against those who commit the worst of crimes. Our research reveals that in every proposition expanding the list of deatheligible crimes between 1978 and 2000, the information provided by the Legislative Analyst’s Office in the Voter Information Guides told voters that the fiscal impact of these initiatives would be “none,” “unknown,” “indeterminable,” or “minor.” Relying, at least in part, on this information, Californians have used the voter initiative process to enact “tough on crime” laws that, without adequate funding from the Legislature to create an effective capital punishment system, have wasted immense taxpayer resources and created increasingly serious due process problems.
Finally, this Article analyzes corrective measures that the Legislature could take to reduce the death row backlog, and proposes several voter initiatives that California voters may wish to consider if the Legislature continues to ignore the problem. It is the authors’ view that unless California voters want to tolerate the continued waste of billions of tax dollars on the state’s now-defunct death penalty system, they must either demand meaningful reforms to ensure that the system is administered in a fair and effective manner or, if they do not want to be taxed to fund the needed reforms, they must recognize that the only alternative is to abolish the death penalty and replace it with a sentence of life imprisonment without the possibility of parole.
Recent related post:
Defendant barely wins in Freeman, as SCOTUS clarifies/complicates guideline retroactivity rules
The final big federal sentencing case on the Supreme Court docket this term is Freeman v. US concerning the eligibility of some defendants to get the retroactive benefit of the Sentencing Commission reducing guidelines ranges. Today Freeman prevailed, though what seems like a 4-1-4 opinion in his favor likely means few other defendants will benefit from his victory. Here are the basics coming from the start of the first opinion in Freeman:
JUSTICE KENNEDY announced the judgment of the Court and delivered an opinion, in which JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE KAGAN join.
The Sentencing Reform Act of 1984, 18 U. S. C. §3551 et seq., calls for the creation of Sentencing Guidelines to inform judicial discretion in order to reduce unwarranted disparities in federal sentencing. The Act allows retro-active amendments to the Guidelines for cases where the Guidelines become a cause of inequality, not a bulwark against it. When a retroactive Guideline amendment is adopted, §3582(c)(2) permits defendants sentenced based on a sentencing range that has been modified to move for a reduced sentence.
The question here is whether defendants who enter into plea agreements that recommend a particular sentence as a condition of the guilty plea may be eligible for relief under §3582(c)(2). See Fed. R. Crim. Proc. 11(c)(1)(C) (authorizing such plea agreements). The Court of Appeals for the Sixth Circuit held that, barring a miscarriage of justice or mutual mistake, defendants who enter into 11(c)(1)(C) agreements cannot benefit from retroactive Guideline amendments.
Five Members of the Court agree that this judgment must be reversed. The Justices who join this plurality opinion conclude that the categorical bar enacted by the Court of Appeals finds no support in §3582(c)(2), Rule11(c)(1)(C), or the relevant Guidelines policy statements. In every case the judge must exercise discretion to impose an appropriate sentence. This discretion, in turn, is framed by the Guidelines. And the Guidelines must be consulted, in the regular course, whether the case is one in which the conviction was after a trial or after a plea,including a plea pursuant to an agreement that recommends a particular sentence. The district judge’s decision to impose a sentence may therefore be based on the Guide-lines even if the defendant agrees to plead guilty under Rule 11(c)(1)(C). Where the decision to impose a sentence is based on a range later subject to retroactive amendment, §3582(c)(2) permits a sentence reduction.
Section 3582(c)(2) empowers district judges to correct sentences that depend on frameworks that later prove un-justified. There is no reason to deny §3582(c)(2) relief to defendants who linger in prison pursuant to sentences that would not have been imposed but for a since-rejected, excessive range.
JUSTICE SOTOMAYOR would reverse the judgment on a different ground set out in the opinion concurring in the judgment. That opinion, like the dissent, would hold that sentences following 11(c)(1)(C) agreement are based on the agreement rather than the Guidelines, and therefore that § 3582(c)(2) relief is not available in the typical case. But unlike the dissent she would permit the petitioner here to seek a sentence reduction because his plea agreement in express terms ties the recommended sentence to the Guidelines sentencing range.
Defendant wins in Bullcoming, the latest (greatest?) SCOTUS Confrontation Clause case
In part because the Confrontation Clause has been deemed inapplicable at sentencing, I have not followed too closely the post-Crawford line of decisions on this facet of the Sixth Amendment. Nevertheless, the line-up of Justices as well as the pro-criminal-defendant SCOTUS ruling today in Bullcoming v. New Mexico should interest anyone who follows closely modern criminal procedure issues. First, here is the line up in the 5-4 ruling for the defendant:
GINSBURG, J., delivered the opinion of the Court, except as to Part IV and footnote 6. SCALIA, J., joined that opinion in full, SOTOMAYOR and KAGAN, JJ., joined as to all but Part IV, and THOMAS, J., joined as to all but Part IV and footnote 6. SOTOMAYOR, J., filed an opinion concurring in part. KENNEDY, J., filed a dissenting opinion, in which ROBERTS, C. J., and BREYER and ALITO, JJ., joined.
Now here is how Justice Ginsburg's opinion for the Court gets started:
In Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009), this Court held that a forensic laboratory report stating that a suspect substance was cocaine ranked as testimonial for purposes of the Sixth Amendment’s Confrontation Clause. The report had been created specifically to serve as evidence in a criminal proceeding. Absent stipulation, the Court ruled, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the statements made in the report.
In the case before us, petitioner Donald Bullcoming was arrested on charges of driving while intoxicated (DWI). Principal evidence against Bullcoming was a forensic laboratory report certifying that Bullcoming’s blood alcohol concentration was well above the threshold for aggravated DWI. At trial, the prosecution did not call as a witness the analyst who signed the certification. Instead, the State called another analyst who was familiar with the laboratory’s testing procedures, but had neither participated in nor observed the test on Bullcoming’s blood sample. The New Mexico Supreme Court determined that, although the blood-alcohol analysis was “testimonial,” the Confrontation Clause did not require the certifying analyst’s in-court testimony. Instead, New Mexico’s high court held, live testimony of another analyst satisfied the constitutional requirements.
The question presented is whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification — made for the purpose of proving a particular fact — through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in thecertification. We hold that surrogate testimony of that order does not meet the constitutional requirement. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.
I will be especially grateful for any and all comments explaining whether and how this ruling could possibly have some sentencing bite.
June 22, 2011
Federal habeas grant finds Ring problem in Florida death sentence
As reported in this new AP piece, in a habeas ruling from earlier this week, a "federal judge has declared that Florida's method of imposing the death penalty is unconstitutional because jurors are not required to make specific findings on the aggravating factors that increase a sentence from life in prison to death." Here is more:
The ruling by U.S. District Judge Jose E. Martinez applies only to the case of a convicted murderer currently on Florida's Death Row, but legal experts say it will likely spark a series of challenges across the state in death cases. They also say it could be used to seek stays of execution. "It could have a dramatic impact, a life or death impact," said Kendall Coffey, a former federal prosecutor now in private practice. "It says that essential elements in criminal cases have to be found by a jury, not by a judge."
In Florida death penalty cases, jurors who voted to convict a defendant of murder are then asked whether to recommend death or life as punishment. The judge then gives "great weight" to the recommendation but is not required to follow it. The recommendation is by majority vote. But jurors are not asked to make specific decisions on aggravating factors necessary to impose death, such as whether it was a crime for money or was particularly heinous and cruel. Those particular rulings are left to the judge.
In his 94-page ruling Monday, Martinez said Florida's system violates a 2002 U.S. Supreme Court decision that voided Arizona's method of imposing death sentences. That ruling, Martinez said, makes clear that jurors must determine which specific aggravating factors apply in each case. "The defendant has no way of knowing whether or not the jury found the same aggravating factors as the judge," Martinez wrote. "Indeed, the judge, unaware of the aggravating factor or factors found by the jury, may find an aggravating circumstance that was not found by the jury."
Florida is the only state with this exact system, although many others have hybrids that involve both jury and judge. Martinez said the Florida Supreme Court has not found that the state's method of imposing capital punishment violates the Constitution, even in light of the 2002 U.S. Supreme Court decision....
The ruling does not automatically void Florida law, but other judges could follow it if lawyers challenge the system around the state. There could also be attempts to modify jury instructions to comply with the decision. In addition, if the state appeals as is likely, a decision upholding Martinez's ruling by the 11th U.S. Circuit Court of Appeals would have the effect of striking down Florida's sentencing system in death cases, Coffey said. The office of Attorney General Pam Bondi did not immediately comment on whether it would appeal.
A helpful reader forwarded me a copy of the lengthy habeas ruling in Evans v. McNeil, No. 2:08-cv-14402-JEM (S.D. Fla. June 20, 2011), which I have made available for downloading below. The Ring-related discussion begins on page 78 of the pdf, and the facts of the case and the reasoning of this opinion includes some nuances that may preclude every Florida capital defendant from benefiting from the ruling. Nevertheless, almost a decade after the US Supreme Court's Ring ruling, it now appears that at least some Florida capital sentences are finally running into some Sixth Amendment difficulties.
Judge Davis laments drug war's damage and costs in concurrence requiring LWOP for druggie
A couple of helpful readers altered me to a notable concurring opinion authored by Judge Davis of the Fourth Circuit in US v. Gregg, No.10-4198 (4th Cir. July 17, 2011) (available here). Here are snippets from this opinion, which merits a full read:
The distinguished district judge was aghast that the now forty-year-old Tony Gregg would spend the rest of his life in federal prison for selling small amounts of crack cocaine over a period of several weeks out of a hotel room in a run-down section of Richmond...
[P]rior to trial, Gregg was offered a plea agreement for a twenty-year sentence; when he rejected the government’s offer, the government went all out for the life sentence found to be unjust by the district court. Of the government’s four non-law-enforcement witnesses at the one-day trial below, all four were women who were themselves, like Gregg, users and sellers of crack cocaine and heroin who worked with Gregg to sell crack cocaine.
Understandably, perhaps, to many, Gregg is not a sympathetic figure; they will think: he got what he deserved. To many others, perhaps, matters are not so clear. Indeed, many would say that Tony Gregg seems to be one more of the drug war’s “expendables.” See Nora V. Demleitner, “Collateral Damage”: No Re-Entry for Drug Offenders, 47 Vill. L. Rev. 1027, 1050 (2002).
This case presents familiar facts seen in courts across the country: a defendant addicted to narcotics selling narcotics in order to support his habit. Unfortunately for Gregg and countless other poorly-educated, drug-dependant offenders, current drug prosecution and sentencing policy mandates that he spend the rest of his life in prison....
The mass incarceration of drug offenders persists into the second decade of the twenty-first century despite the fact that research consistently demonstrates that the current approach to combating illegal drug use and drug trafficking is a failure.... Even the U.S. drug czar, a position created by the Anti-Drug Abuse Act of 1988, admits the war on drugs is failing, stating that after 40 years and $1 trillion, “it has not been successful ... the concern about drugs and drug problems is, if anything, magnified, intensified.” Martha Mendoza, After 40 Years and $1 Trillion, Drug Use Is Rampant and Violence Pervasive, Associated Press, May 13, 2010.
I share the district judge’s dismay over the legallymandated sentence he must impose in this case. While the controlling legal principles require us to order the reimposition of a sentence of life without parole in this case, the time has long passed when policymakers should come to acknowledge the nation’s failed drug policy and to act on that acknowledgement.
As a nation, we are smart enough to do better.
DPIC releases new anti-DP report on 35th anniversary of Gregg ruling
The Death Penalty Information Center has just released this big new report on the state of capital punishment in the US. The report is titled "Struck By Lightning: The Continuing Arbitrariness of the Death Penalty Thirty-Five Years After Its Re-instatement in 1976," and it seems to cover all of the modern hot topics surrounding the administration of the death penalty. Here is the report's executive summary:
The United States Supreme Court approved the re-instatement of the death penalty 35 years ago on July 2, 1976. Although the death penalty had earlier been held unconstitutional because of its arbitrary and unpredictable application, the Court was willing to sanction new systems that states had proposed to make capital punishment less like “being struck by lightning” and more like retribution for only the “worst of the worst” offenders. The Court also deferred to the statesʼ judgment that the death penalty served the goals of retribution and deterrence.
After three and a half decades of experience under these revised statutes, the randomness of the system continues. Many of the countryʼs constitutional experts and prominent legal organizations have concluded that effective reform is impossible and the practice should be ended. In polls, jury verdicts and state legislative action, there is evidence of the American peopleʼs growing frustration with the death penalty. A majority of the nine Justices who served on the Supreme Court in 1976 when the death penalty was approved eventually concluded the experiment had failed.
Four states have abolished the death penalty in the past four years, and nationwide executions and death sentences have been cut in half since 2000. A review of state death penalty practices exposes a system in which an unpredictable few cases result in executions from among thousands of eligible cases. Race, geography and the size of a countyʼs budget play a major role in who receives the ultimate punishment. Many cases thought to embody the worst crimes and defendants are overturned on appeal and then assessed very differently the second time around at retrial. Even these reversals depend significantly on the quality of the lawyers assigned and on who appointed the appellate judges reviewing the cases. In such a haphazard process, the rationales of deterrence and retribution make little sense.
In 1976, the newly reformed death penalty was allowed to resume. However, it has proved unworkable in practice. Keeping it in place, or attempting still more reform, would be enormously expensive, with little chance of improvement. The constitution requires fairness not just in lofty words, but also in daily practice. On that score, the death penalty has missed the mark.
Justice Department creates great new evidence-based criminal justice resource
I am extremely pleased to see (thanks to this item at The Crime Report) that The U.S. Justice Department has created an important new website, Crime Solutions.gov, to enable all of us to better assess the effectiveness of state and local criminal justice programming. Here is more background vie The Crime Report:
The site, unveiled yesterday at the National Institute of Justice’s annual crime research conference near Washington, D.C., was billed by federal officials as a “single, credible, online resource to inform practitioners and policymakers about what works in criminal justice, juvenile justice, and crime victim services.”
Laurie Robinson, Assistant Attorney General for Justice Programs, started the project when she returned to government service in 2009. A team of experts from her office and the Maryland-based private firm Development Services Group (DSG) assembled the database by reviewing academic studies that have reviewed hundreds of anticrime programs under accepted scientific standards.
Each program was classified in one of three categories: effective, promising, or no effects. Officials emphasized that the CrimeSolutions.gov site is a work in progress, with new evaluations added almost daily. In the last week before the NIJ conference, the number listed jumped from 125 to 145.
The programs are divided into eight categories. As of yesterday, crime and crime prevention had the most evaluations (24) while drugs and substance abuse had the fewest (8). Other categories are corrections and prisoner reentry, courts, forensics and technology, juvenile justice, law enforcement, and victims and victimization.
Many programs didn’t make the cut, either because they were judged ineffective or there wasn’t enough evidence to make a judgment. Phelan Wyrick, an assistant to Robinson, said good but unproved programs would not have to make the list to qualify for federal funding. “We must continue to support innovation,” he told the NIJ conference.
CrimeSolutions.gov is intended to be a central, reliable, and credible resource to help practitioners and policymakers understand what works in justice-related programs and practices. Its purpose is to assist in practical decision making and program implementation by gathering information on specific justice-related programs and reviewing the existing evaluation research against standard criteria.
It is important to note the CrimeSolutions.gov Web site does not constitute an endorsement of particular programs, nor does it conduct original research. The programs reported upon favorably are being recognized for their accomplishments in support of the mission of the Office of Justice Programs (OJP). Furthermore, it is not intended to replace or supersede informed judgment and/or innovation. CrimeSolutions.gov recognizes that rigorous evaluation evidence is one of several factors to consider in justice programming, policy, and funding decisions. OJP also recognizes the importance of encouraging and supporting innovative approaches that may not yet have extensive evidence of effectiveness.
Texas executes murderer despite evidence suggesting mental retardation
As detailed in this Reuters article, "Texas executed on Tuesday a man convicted of fatally shooting two people and paralyzing a third near Houston in 1998, despite evidence that he was mentally disabled." Here is more:
Milton Mathis, 32, was sentenced in 1999, before the U.S. Supreme Court ruled it unconstitutional to execute inmates with mental disabilities. His supporters had been trying for years to argue that he should be spared. On Tuesday, a final plea to the Supreme Court to hear evidence of his mental disability was denied, and he was executed by lethal injection....
Mathis was the 23rd person executed in the United States this year and the sixth executed in Texas, the most active death penalty state in the nation. Shortly before he died, Mathis criticized the Texas death penalty as a "mass slaughter. The system has failed me. This is a miscarriage of justice," he said.... Mathis was convicted in September 1999 of opening fire on a home in Fort Bend County, west of Houston, and killing Travis Brown and Daniel Hibbard. [Melanie] Almaguer, then 15, was also shot in the head. Mathis also turned the gun on Almaguer's mother, who was in the home, but ran out of bullets, according to the state attorney general's office. He looted the home before setting it on fire, fled in Brown's car, and later told a fellow inmate that he wished he had "killed them all," according to the attorney general's office.
Most U.S. inmates with mental disabilities have been spared execution since the Supreme Court in 2002 declared it unconstitutional, said Richard Dieter, executive director of the Washington-based Death Penalty Information Center, which tracks capital punishment cases. Those who have been executed were usually cases in which the inmate's claim of mental disability was in dispute, including the Mathis case, he said....
Mathis, who had an eighth-grade education when he was convicted, has scored in the low 60s on several IQ tests -- including a 62 on a test administered by the state's prison system, according to an essay on the Stand Down Texas website by Mark White, a former Texas governor who opposed Mathis' execution. Stand Down Texas supports a death penalty moratorium in Texas. Psychology experts have routinely put the standard for mental disabilities around a 70 IQ and lower....
Texas has a particularly high burden of proof for mental disability, said Keith Hampton, an Austin defense attorney who specializes in death penalty cases. It takes more than IQ tests, he said. Attorneys also have to prove that the inmate had disabilities before age 18, and that he or she has shown a deficit in adaptive skills, such as reading and writing and following directions.
Budget realities leading Ohio republicans to embrace progressive prison reforms
As detailed in this Columbus Dispatch piece, headlined "Senate prepares to vote on 'get-out-of-prison-sooner' bill: Measure would shorten inmates' sentences and save Ohio $78 million a year," the republicans in Ohio, who control all the political positions in the state, are on the verge of enacting massive sentencing and prison reforms. Here are the details:
Ohio's criminal-sentencing overhaul is growing, with provisions added by an Ohio Senate panel yesterday requiring prisons to justify why they are keeping inmates 65 or older, provide certificates to help former inmates get jobs, and create an instant diversion program for shoplifters.
The Senate Judiciary Criminal Justice Committee voted 6-3 late last night to pass a substitute version of House Bill 86 loaded down with new amendments. The bill will be considered by the full Senate today.
Savings are estimated at $78 million annually on prison costs, by diverting nonviolent offenders to community programs and giving inmates credit that would reduce their sentences for participating in treatment and training. It would provide the option of treatment instead of prison for low-level, nonviolent drug offenders, allow release of inmates who have served at least 80 percent of their sentences, and equalize penalties for crack-cocaine and powder-cocaine possession.
Gov. John Kasich supports the main provisions of the bill, which he called "common-sense improvements that are badly needed."
One change approved last night would require the Ohio Department of Rehabilitation and Correction to issue a report justifying why prisoners who are 65 should still be kept in prison. The state now houses 320 prisoners 65 or older and nearly 1,900 inmates 60 or older.
Other changes include a provision that would give inmates who have completed certain programs a "certificate of achievement and employability." That would shield potential employers from on-the-job liability if they hire ex-offenders.
Sen. Tim Grendell, R-Chesterland, the committee chairman, said another change would permit a sort of instant diversion program for shoplifters. They would not be arrested, but could arrange a community program with the store in lieu of jail time. "This ought to help us some and save money in the process," he said.
Former CEO of big mortgage firm gets 40 months on fraud conviction
This Reuters story, headlined "Ex-CEO of mortgage lender sentenced to prison," reports on one (of many?) criminal justice echoes of the housing crash. Here are the basics:
The former chief executive of one of the largest mortgage firms to collapse in the U.S. housing crash was sentenced to more than three years in prison on Monday for his role in a fraud scheme dubbed "Plan B" that federal prosecutors say cost investors $1.5 billion.
Paul Allen, 55, the former CEO of Taylor, Bean & Whitaker, or TBW, pleaded guilty in April to one count of making false statements and one count of conspiring to commit bank and wire fraud. The Justice Department said the fraud scheme contributed to the failure of TBW, which was one of the largest privately held U.S. mortgage lending companies, as well as the bankruptcy of Alabama-based Colonial Bank, which was one of the 50 largest U.S. banks.
Former TBW Chairman Lee Farkas, who was convicted on April 19 on 14 counts of fraud for his role in masterminding the scheme, is scheduled to be sentenced on June 27....
Allen's co-conspirator Sean Ragland, a 37-year-old former senior financial analyst at TBW, was also sentenced today by Judge Leonie Brinkema to three months in prison. Four other senior officials with TBW and Colonial Bank have also been sentenced to time in prison ranging from three months to eight years for their role in the fraud.
June 21, 2011
Desperate sick man commits $1 bank robbery to get health care in prison
Throughout the modern health care reform debates, I have often joked with students that the United States has long had a single-payer health-care system for all persons in every jurisdiction, but one needs to commit a serious crime in order to get admitted to this (prison-based) single-payer system. This joke has a serious side through this remarkable local story from North Carolina headlined "Bank robber planned crime and punishment." Here are the details:
James Richard Verone woke up June 9 with a sense of anticipation. He took a shower. Ironed his shirt. Hailed a cab. Then robbed a bank.
He wasn’t especially nervous. If anything, Verone said he was excited to finally execute his plan to gain access to free medical care. “I prepared myself for this,” Verone said from behind a thick glass window in the Gaston County Jail Thursday morning. Verone spoke calmly about the road that led him to a jail cell he shares with a young man arrested for stealing computers....
Until last week Verone had never been in trouble with the law. Now he hopes to be booked as a felon and held in prison where he can be treated for several physical afflictions.
Verone worked for Coca-Cola for 17 years. He prided himself on keeping his nose to the grindstone. Don’t make enemies. Sell the product. Make your deliveries and stick to your schedule. When his career as a cola delivery man ended some three years ago, Verone was knocked out of his comfort zone.... Not his first choice, Verone became a convenience store clerk. But the bending, standing and lifting were too much for him. The Gastonia man’s back ached; problems with his left foot caused him to limp. His knuckles swelled from arthritis, and carpal tunnel syndrome made daily tasks difficult. Then he noticed a protrusion on his chest.
Strapped for cash, Verone looked into filing for disability. He applied for early Social Security. The only thing Verone qualified for was food stamps. The extra money helped, but he felt desperate. He needed to get medical attention, and he refused to be a burden on his sister and brothers. “The pain was beyond the tolerance that I could accept,” he said. “I kind of hit a brick wall with everything.”
A couple of months ago Verone started weighing his options. He considered turning to a homeless shelter and seeking medical help through charitable organizations. Then he had another idea: commit a crime and get set up with a place to stay, food and doctors.
He started planning. As his bank account depleted and the day of execution got closer, Verone sold and donated his furniture. He paid his last month’s rent and gave his notice. He moved into the Hampton Inn for the last couple of days. Then on June 9 he followed his typical morning routine of getting ready for the day. He took a cab down New Hope Road and picked a bank at random — RBC Bank.
Verone didn’t want to scare anyone. He executed the robbery the most passive way he knew how. He handed the teller a note demanding one dollar, and medical attention. “I didn’t have any fears,” said Verone. “I told the teller that I would sit over here and wait for police.”
The teller, however, did have some fears even though Verone never showed a weapon. Her blood pressure shot up and once Verone was handcuffed by police, the teller was taken to Gaston Memorial Hospital to be checked out. Verone said he was sorry for causing the woman any pain....
Verone says he’s not a political man. But he has a lot to say on the subject of socialized medical care. He suspects he wouldn’t be talking to a reporter through a metal screen wearing an orange jumpsuit if such an option were available in the U.S....
The man has high hopes with his recent incarceration. He has seen several nurses and has an appointment with a doctor Friday. The ideal scenario would include back and foot surgery and a diagnosis and treatment of the protrusion on his chest, he said. He would serve a few years in prison and get out in time to collect Social Security and move to the beach.
Because he only demanded $1, he was charged with larceny from a person. Still a felony, the count doesn’t carry as much jail time as bank robbery. The bearded, gray-haired man plans to represent himself in court. He’s trying not to get too confident about his knowledge of the legal system. He just wants to prepare a statement for the judge and then take whatever active sentence he is given. Verone is considering an ultimatum if the penalty isn’t great enough, he said. The crime will happen again.
The day Verone set out to commit his first felony, he mailed a letter to The Gazette. He listed the return address as the Gaston County Jail. “When you receive this a bank robbery will have been committed by me. This robbery is being committed by me for one dollar,” he wrote. “I am of sound mind but not so much sound body.”
Verone wanted to talk to a reporter to make sure people knew why he turned to crime. He figured he had nothing to lose. “I knew that a felony would not hurt me. I cannot work anymore,” he said. “That felony is going to hurt my reputation.”
"The Supreme Court and the Sentencing of Juveniles in the United States: Reaffirming the Distinctiveness of Youth"
The title of this post is the title of this new piece by a doctor in a forthcoming medical journal which in now available via SSRN. Here is the abstract:
In the 21st century’s first decade, the U.S. Supreme Court has set two key constitutionally-based limits to punishment of juveniles. In Roper v. Simmons (2005) the Court barred imposition of the death penalty for crimes committed by juveniles, and in Graham v. Florida (2010) it forbade life imprisonment without possibility of parole (LWOP) for juveniles who commit non-homicide offenses. Both decisions held these penalties violated the Eight Amendment’s prohibition on cruel and unusual punishment because they were disproportionate given juveniles’ distinctive cognitive, psychosocial and neuroanatomical characteristics. Roper and Graham reflect two decades’ long trends, one legal and one clinical, whose interaction will control the legal system’s approach to juvenile justice for some time.
Since 1980 more children, at younger ages, became legally susceptible to much harsher punishments (through trial as adults), yet over the same period clinical skepticism concerning the cognitive, psychosocial, and neuroanatomical development of youth that was required for the legal process, and the appropriateness of these sentences, grew. In Roper and Graham the Court resolved this paradox by siding clearly with clinicians . The Court’s adoption of a developmental model of culpability, with heavy reliance on cognitive psychological research concerning risk-taking, susceptibility to peer pressure and mutability of character, as well as MRI and fMRI studies of adolescent and young adult brain development, may produce future challenges to lengthy juvenile sentences, to broad provisions allowing transfer of juveniles for trial as adults and even possibly to younger juveniles’ competence to stand trial.
June 21, 2011 in Assessing Graham and its aftermath, Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack
New effort in Georgia to stop execution by going after doctor involved in lethal injection
As detailed in this Atlanta Journal-Constitution article, "days before Georgia is to execute a Savannah man in the murder of a 78-year-old woman, a human rights group is asking the state to revoke the license of a doctor who sometimes participates in lethal injections." Here is more:
Roy Blankenship is scheduled to die by lethal injection Thursday for the 1978 murder of Sarah Mims Bowen, who was beaten to death. She was found in the bedroom in her house just a block away from where Blankenship lived. Police followed bloody footprints to Blankenship's house.
On Monday, the Southern Center for Human Rights filed a complaint with the Georgia Composite Medical Board alleging that Dr. Carlo Anthony Musso illegally helped Kentucky and Tennessee secure a scarce sedative used in a three-drug cocktail for executions, sodium thiopental. The only U.S.-based manufacturer of the sedative announced in January that it was no longer making the drug.
The group said in its filing that Musso, who owns CorrectHealth and Rainbow Medical Associates, secured some of the drug and then sold it to at least two other states even though he was not registered with the Georgia Board of Pharmacy or the U.S. Drug Enforcement Administration to ship sodium thiopental across state lines. “Dr. Musso violated a host of state and federal criminal laws,” the Southern Center for Human Rights wrote.
Musso, who could not be reached Monday, has denied selling drugs to Kentucky or Tennessee.
June 20, 2011
New Illinois study seeks to price the costs of wrongful convictions
As detailed in this New York Times article, headlined "Costs Are High for Convictions of Wrong People," a new study released today by Better Government Association and the Center on Wrongful Convictions at Northwestern seeks to detail the high costs of wrongful convictions. Here is a summary of the report's findings via the Times:
The [Better Government Association], a nonprofit watchdog and advocacy group, said the study was the first to document the economic and social costs of the 85 convictions in the state that were overturned between 1989 — the advent of modern DNA testing — and 2010. In all, the study said, those wrongful convictions have cost Illinois taxpayers $214 million, and the amount will probably increase to $300 million once 16 pending lawsuits are settled....
The perpetrators of crimes for which others were convicted went on to commit at least 94 more felonies, including 14 murders and 11 sexual assaults, according to the study. It said 83 men and 2 women spent a total of 926 years behind bars for crimes they did not commit....
In 81 of the 85 cases, the study found what it said was either misconduct or error by state officials — in 66 cases by the police, in 44 by prosecutors and in 29 by forensic specialists.
The full study with lots of data and charts and graphs are available at this link.
Recognizing that the two SCOTUS former prosecutors often disagree
Bob Barnes has this new piece in The Washington Poston Justices Alito and Sotomayor, the Supreme Court's two former prosecutors, headlined "Alito, Sotomayor give voice to court split." Here are excerpts:
The Supreme Court’s two former prosecutors sit on opposite ends of the court’s long mahogany bench, and they take very different views of the criminal justice system.
Justices Samuel A. Alito Jr. and Sonia Sotomayor have emerged in their relatively short time on the bench as two of the court’s most outspoken members on criminal justice issues. Sometimes they speak in unison, but when they disagree they often represent the court’s ideological divide....
Jeffrey Fisher, a Stanford University law professor who frequently argues criminal cases before the Supreme Court, said it is clear that Sotomayor and Alito are the two justices who have had the closest contact with the criminal justice system. But he speculates that those experiences have provided different perspectives.
Alito has always been a federal prosecutor, Fisher notes, “where resources run deep” and cases are more carefully constructed. He comes with the view that police work is done right and that defendants are often trying to simply “game” the system.
Sotomayor’s experience in the New York DA’s office was probably more chaotic — and closer to the kind of prosecutions the court reviews. “She has a little more of an inkling that sometimes the system malfunctions,” he said.
Regular readers know from this recent post, which I titled "Justices Kennedy, Alito, and Sotomayor and the future of the SCOTUS docket and sentencing jurisprudence," that I have been following the criminal justice moves of these newer Justices quite closely. And here are some other posts of note about this pair with prosecutorial pasts:
- Should we thank new Justices Alito and Sotomayor for all the big criminal law SCOTUS action?
- Noting Justice Alito's lack of empathy for criminal defendants
- It's a bird! It's a plane! ... No it's Sotomayor!!!
- Notable background parallels between Judge Sotomayor and Justice Alito
- How exactly do transitions impact the SCOTUS docket and cert grant decisions?
- Justice Alito jumping out of the cert pool!!
- Justices Kennedy, Alito, and Sotomayor and the future of the SCOTUS docket and sentencing jurisprudence
The folks at SentencingSpeak in this post set forth some astute follow-up questions to this story:
Of course, this article raises other important questions: Why aren't there more Supreme Court justices (and federal judges) with a background in criminal defense? Why aren't there more justices who have actually sentenced people to prison? Should actual sentencing experience be preferred (or required) to become one of our highest judges in the land?
Lots of notable new items via The Crime Report
The Crime Report website is a daily stop for me because it always has original pieces and links to other reporting about a rnage of important criminal justice issues with sentencing law and policy dimensions. For example, newly up on the site are these three notable items:
"Administering Justice: Removing Statutory Barriers to Reentry"
The title of this piece is the title of this new forthcoming article from Joy Radice now available via SSRN. Here is the abstract:
After years of swelling prison populations, the reentry into society of people with criminal convictions has become a central criminal justice issue. Scholars, advocates, judges, and lawmakers have repeatedly emphasized that, even after prison, punishment continues from severe civil penalties that are imposed by federal and state statutes on anyone with a conviction. To alleviate the impact of these punishments, they have increasingly endorsed state legislation that creates certificates of rehabilitation. Seven states offer these post-conviction certificates, and six others proposed such legislation in 2011. Many look to New York’s statute as the best model because it is the oldest and most robust. Yet no article has examined New York’s experience with Certificates of Rehabilitation.
This Article draws lessons from the fifty-year history of New York’s Certificates of Rehabilitation to describe features of an ideal administrative mechanism that removes statutory barriers to reentry. I argue that a model Certificate of Rehabilitation statute will have a strong enforcement mechanism and clear directives for administering authorities. Successful implementation also requires committed administrative leadership and an effective means for making certificates accessible to the population they serve. Certificates of Rehabilitation do not erase a person’s criminal history, but they offer legal and social recognition that after a criminal conviction, a person deserves a second chance.
Notable SCOTUS ruling in right to counsel Turner v. Rogers case
Thanks again to the SCOTUSblog folks doing their always effective live-blogging, I can provide this early report on the first notable ruling today for procedure fans:
The first opinion is Turner v. Rogers, the right to counsel case. Opinion is by Justice Breyer. SC Ct. vacated and remanded. It's five to four. Justice Thomas dissented, joined in full by Scalia and in part by the Chief and Alito....
Even though Turner has completed hs sentence and no collateral consequences are alleged, his case is not moot because it is capable of repetition while evading review. The 14th Amendment does not automatically require the state to provide counsel at civil contempt proceedings even if the indigent faces incarceration. But the Court holds that here Turner's incarceration violated due process becasue he had neither counsel nor adequate procedural safeguards. The Court says that various factors argue strongly "against" requiring counsel in every proceeding of this kind.
The opinion in Turner is here.
Though I will have to read the full Turner opinion carefully to be sure, despite the ruling for the petitioner, this ruling actually appears to be a bit of a reduction, not expansion, of the right to counsel. (In addition, none of the few other remaining cases with criminal justice issues or implications were handed down today, and there is a big ruling in the Wal-Mart class action/empoyment discrimination case that seems sure to dominate SCOTUS discussions for some time.)
New article details high costs of California's dysfunctional death penalty
As reported in this lengthy Los Angeles Times piece, which is headlined "Death penalty costs California $184 million a year, study says," a new article breaks down the considerable economic costs of California's capital punishment system. Here are some of the details:
Taxpayers have spent more than $4 billion on capital punishment in California since it was reinstated in 1978, or about $308 million for each of the 13 executions carried out since then, according to a comprehensive analysis of the death penalty's costs.
The examination of state, federal and local expenditures for capital cases, conducted over three years by a senior federal judge and a law professor, estimated that the additional costs of capital trials, enhanced security on death row and legal representation for the condemned adds $184 million to the budget each year.
The study's authors, U.S. 9th Circuit Judge Arthur L. Alarcon and Loyola Law School professor Paula M. Mitchell, also forecast that the tab for maintaining the death penalty will climb to $9 billion by 2030, when San Quentin's death row will have swollen to well over 1,000.
In their research for "Executing the Will of the Voters: A Roadmap to Mend or End the California Legislature's Multi-Billion-Dollar Death Penalty Debacle," Alarcon and Mitchell obtained California Department of Corrections and Rehabilitation records that were unavailable to others who have sought to calculate a cost-benefit analysis of capital punishment....
The authors outline three options for voters to end the current reality of spiraling costs and infrequent executions: fully preserve capital punishment with about $85 million more in funding for courts and lawyers each year; reduce the number of death penalty-eligible crimes for an annual savings of $55 million; or abolish capital punishment and save taxpayers about $1 billion every five or six years.
Alarcon, who prosecuted capital cases as a Los Angeles County deputy district attorney in the 1950s and served as clemency secretary to Gov. Pat Brown, said in an interview that he believes the majority of California voters will want to retain some option for punishing the worst criminals with death. He isn't opposed to capital punishment, while Mitchell, his longtime law clerk, said she favors abolition. Both said they approached the analysis from an impartial academic perspective, aiming solely to educate voters about what they are spending on death row.
Alarcon four years ago issued an urgent appeal for overhaul of capital punishment in the state, noting that the average lag between conviction and execution was more than 17 years, twice the national figure. Now it is more than 25 years, with no executions since 2006 and none likely in the near future because of legal challenges to the state's lethal injection procedures....
Among their findings to be published next week in the Loyola of Los Angeles Law Review:
- The state's 714 death row prisoners cost $184 million more per year than those sentenced to life in prison without the possibility of parole.
- A death penalty prosecution costs up to 20 times as much as a life-without-parole case.
- The least expensive death penalty trial costs $1.1 million more than the most expensive life-without-parole case.
- Jury selection in a capital case runs three to four weeks longer and costs $200,000 more than in life-without-parole cases.
- The state pays up to $300,000 for attorneys to represent each capital inmate on appeal.
- The heightened security practices mandated for death row inmates added $100,663 to the cost of incarcerating each capital prisoner last year, for a total of $72 million.
I cannot yet find on-line a copy of the "Executing the Will of the Voters" article, but I will post a link to the full piece when it becomes available.
"Could flogging solve our prison crisis?"
The question in the title of this post come from the headline of this new Salon piece, which includes a Q&A with the author of a new provocative book titled "In Defense of Flogging." Here is how the piece starts:
America's prison system is in a state of crisis. Since the declaration of a war on drugs 40 years ago, our country has amassed the largest prison population the world has ever seen. Overcrowding and unconstitutional conditions have gotten so bad that one of the worst offenders, California, was recently ordered by the U.S. Supreme Court to either transfer 33,000 people to other jurisdictions or simply let them go. Now former police officer turned criminal justice professor Peter Moskos has devised a modest proposal that, he argues, could solve the problem of our congested prisons overnight: give prisoners the option of being flogged instead of being imprisoned.
Moskos makes a compelling 154-page argument in flogging’s favor. He points out that since physical brutality is already a part of prison life -- for example, 1 in 20 prisoners report having been sexually assaulted by other inmates or staff in the past year -- and corporal punishment is a much faster and cheaper method of retribution, prison may actually be the more inhumane and less fiscally responsible option. Although his outrageous idea may conjure up unsavory reminders of U.S. slavery, by the end of "In Defense of Flogging," Moskos might just have you convinced.
Salon spoke with Moskos about the feasibility of flogging, the reasons behind our prison population explosion -- and why so many Americans want to see prisoners suffer.
Nebraska yet another state struggling with high prison population and its costs
As detailed in this effective local article, headlined "Prisons losing crowding battle," the Cornhusker State is struggling with prison over-population problems. Here are some of the particulars from an article that effectively details one state's on-going struggle with crowded and costly prisons:
A deluge of new prison inmates — many convicted of sex crimes — is overwhelming the state's effort to relieve overcrowding in the state corrections facilities. The state has been ramping up a program to accelerate parole for short-term, low-risk inmates and reduce overcrowding, which has hovered around 140 percent of capacity for several months.
But record-high admissions to Nebraska prisons, along with still-transitioning rehabilitative programs, have left those efforts well short of expectations. Instead of populations falling at the nine state correctional facilities, numbers have risen in the past few months, reaching 4,482, or 141.17 percent of capacity, last week. State prison officials spoke last year of paroling more than 260 inmates by July 1, but the number of inmates on parole has risen by only 40 since March 1.
Bob Houston, state corrections director, remains confident his department can reach a goal of reducing the state's prison population by 545 inmates, or about 12 percent, over the next two years....
State officials, needing to close a nearly $1 billion budget gap this spring, were counting on faster progress to parole more short-term inmates, providing significant cost savings. A total of $6.7 million in savings was projected over the next two years by paroling 545 inmates.
It costs about $29,000 a year to house an offender behind bars, compared with $5,000 per year for intense parole supervision. Houston and others say parole, coupled with treatment, is more effective at avoiding repeat crimes. The expected reduction had another anticipated benefit: heading off construction of a $125-million-plus state prison.
When the prison population reaches 140 percent of capacity, it triggers a report to the governor, who can declare an emergency. The figure also can be a benchmark federal judges use to order construction of new prison cells....
The growth in the number of sex offenders sent to prison appears to be a major culprit in the prison population dilemma. Such offenders generally serve longer sentences and are paroled at a much lower frequency than other inmates, exacerbating the overcrowding problem.
In the past couple of years, sex offenders have supplanted drug dealers and drug users as the largest group in Nebraska prisons. A sex offense was the most serious crime committed by nearly 19 percent of all state inmates. Assault followed at 13 percent, with felony drug crimes third at 12 percent.
Officials said prison alternatives such as drug court and community corrections have reduced the number of inmates sentenced for drug crimes. But while one in five inmates is in prison for sex crimes, only about one in 30 offenders released on parole last year, or 28 in 797, was a sex offender.
That is despite a low rate of recidivism for sex offenders. A 2002 U.S. Department of Justice study found that 5.3 percent of men who committed rape or sexual assault had reoffended within three years of being released from prison. Esther Casmer, the state parole board chairwoman, disagreed that the low rate of parole for sex offenders was related to any cultural fear of such criminals.
Casmer said her board is often presented with parole candidates who have either refused treatment for sex offenses or have been unable to get treatment because of waiting lists in the state prison system. Casmer said she won't parole anyone who hasn't shown through treatment that his risk of reoffending has been reduced.
Seventh Circuit reverses conviction due to feds knowing use of perjured testimony
Late last Friday the Seventh Circuit handed down US v. Freeman, No. 09-4043 (7th Cir. June 17, 2011) (available here), a remarkable opinion because it affirms the grant of a new trial to a defendant based on federal prosecutors' knowing use of perjured testimony. Here is how the panel opinion in Freeman begins:
After a five-week t rial , four defendants were convicted of various drug crimes. The district court later found that the government’s star witness had testified falsely, that the government knew this testimony was false, and that the government relied upon it to secure the defendants’ convictions. The district court then granted a new trial, and the government appeals. Because the record fully supports the district court’s findings that the government knowingly used false testimony and that this testimony affected the jury’s verdict, we affirm.
June 19, 2011
"Paroled lifers pose high risk of new crimes: Serious offenders often back in jail in 3 years, review finds"
The title of this post is the headline of this lengthy article appearing in today's Boston Globe. Here are excerpts:
More than a third of the most serious criminal offenders paroled in Massachusetts over the past five years were returned to prison for committing new crimes or violating the conditions of their release, a Globe review has found, raising questions about the public risk posed by granting early release to scores of convicted murderers, as well as the state’s ability to supervise violent criminals on parole.
The Globe analysis, undertaken after last December’s fatal shooting of a Woburn police officer by a career criminal on parole from a life sentence, found that the Parole Board freed 201 prisoners serving 15 years to life from January 2006 through December 2010.
Thirty of the parolees, or 14.9 percent, were returned to prison after being accused of committing new crimes, including murder and assault and battery with a dangerous weapon, as well as less serious offenses such as assault and drunken driving. An additional 39, or 19.4 percent, were sent back because of parole violations such as failing a drug test.
The 34.3 percent reincarceration rate goes directly to the question the Parole Board could not answer after the shooting death of Woburn officer John Maguire last winter: How often do Parole Board decisions to release serious criminals go awry, resulting in new threats to the public? Was paroled lifer Domenic Cinelli’s murderous rampage an anomaly or part of a pattern?
The Globe analysis also appears to contradict a widely held belief in criminal justice circles: that lifers are less likely than other parolees to return to prison because they tend to be older and face the risk of resuming a life sentence if they violate the conditions of their release.
In fact, in 2009, Massachusetts lifers returned to prison more often than parolees convicted of lesser offenses, based on a Parole Board study that found that 22 percent of non-lifers on parole returned to prison.
Josh Wall, the newly installed chairman of the Massachusetts Parole Board, said the Globe’s findings reflect an urgent need for change in the decision-making process used by board members when considering parole applications from violent criminals. He said the board has approved parole for about one-third of the lifers who applied in recent years, but that rate is likely to drop as it adopts newly written guidelines and more rigorous standards. “People who are serving a life sentence who come before the Parole Board assure the Parole Board that they will not commit any new crimes and will obey all the conditions of parole," Wall said. “As we see, 35 percent of those lifers who received parole were unsuccessful in completing those promises. That rate is too high." Wall also said the board will begin tracking the return rate for paroled lifers and improve its collection of information on all parolees — an area in which Massachusetts is severely lacking, especially in comparison with states such as New York.... In the course of its review, the Globe found a number of Parole Board decisions that resulted in the release of repeat, violent criminals who committed serious new crimes once they were paroled....
Other paroled lifers who ended up back in prison appeared to make genuine attempts to forge new lives before they reoffended by committing less serious crimes. Mark Jones, for instance, seemed to make progress after the board paroled him in 2006, nearly 25 years after he was convicted of second-degree murder for his role in a Roxbury shooting when he was a teenager. Jones married and found work at a Home Depot and later as an ambulance driver and a cabbie, and began building a new life, primarily in Lynn. But his marriage foundered as he and his wife fought and finally separated. Jones also failed a urine test that detected marijuana use — an infraction that could have landed him back in prison.
Jones’s parole officer and the officer’s supervisor gave him another chance. But Jones and his estranged wife had another argument, this time over a car she was using, that culminated when Jones punctured the tires of the vehicle. He has been back in prison ever since. Jones, who is now 49, said he did not blame the Parole Board for returning him to prison. But he also said that, if paroled again, he would attempt to begin his freedom under the supervision of a sponsoring organization such as a church that might provide more help than a parole officer is able to give....
Some advocates say that the reincarceration rate for lifers in Massachusetts is not alarming, noting that most went back to jail for violating the terms of their release, while only 15 percent committed new crimes. “The fact that only 30 people were returned for new crimes is a fantastic number and speaks well of parole as a public safety measure," said Leslie Walker, executive director of Prisoners’ Legal Services, which provides legal services for inmates.
But Wall, a veteran prosecutor who was Governor Deval Patrick’s pick to revamp the Parole Board in the wake of the Cinelli case, said minor criminal offenses or technical violations of parole, such as failing a drug or alcohol test, can be precursors to more serious, violent crimes. “If you know the initial offense, most likely a murder, was committed while drinking, the failure to pass a urine test is more serious than it might be for a parolee whose initial offense was larceny," he said.
Overall, the rate of reincarceration for Massachusetts lifers appears relatively high, at least when compared with New York State, which has tracked murderers and other offenders on parole for decades. Only 19.1 percent of the 1,480 convicted murderers paroled from 1986 to 2006 in New York were returned to prison. In addition, only 2.6 percent were returned for committing new crimes, while 16.6 percent were sent back to prison for committing technical violations of their parole.
The reason for the difference between the states is hard to discern, complicated by the Massachusetts Parole Board’s failure to keep detailed data on recidivism. Peter Cutler, spokesman for New York’s Department of Corrections and Community Supervision, attributed the low return rate in his state to a comprehensive effort to assess every inmate’s shortcomings when they enter prison, along with mandatory treatment and job training designed to prepare them for life outside of prison.
On the other hand, the return rate for Massachusetts lifers is lower than the return rate for all state prison inmates, including those who completed shorter sentences and those released with no post-prison supervision. A recent study by the Pew Center on the States, a nonprofit public policy research organization, found that 43.3 percent of people released from the nation’s prisons in 2004 were reincarcerated within three years.
Notable Fifth Circuit ruling about who isn't covered by the Second Amendment
Thanks to the US Open, it has taken me a while to get the time to read the interesting recent Fifth Circuit ruling about the scope of the Second Amendment in US v. Portillo-Munoz, No. 11-10086 (5th Cir. June 13, 2011) (available here). Here is a key passage from the panel majority's discussion:
The individual laying claim to the Second Amendment’s protections in Heller was a United States citizen, so the question of whether an alien, illegal or legal, has a right to bear arms was not presented, and the Court took care to note that it was not purporting to “clarify the entire field” of the Second Amendment. Id. at 2821. However, the Court’s language does provide some guidance as to the meaning of the term “the people” as it is used in the Second Amendment. The Court held the Second Amendment “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. Furthermore, the Court noted that “in all six other provisions of the Constitution that mention ‘the people,’ the term unambiguously refers to all members of the political community, not an unspecified subset” before going on to say that “[w]e start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.” Id. at 2790-91. The Court’s language in Heller invalidates Portillo’s attempt to extend the protections of the Second Amendment to illegal aliens. Illegal aliens are not “law-abiding citizens” or “members of the political community,” and aliens who enter or remain in this country illegally and without authorization are not Americans as that word is commonly understood.
In a lengthy partial dissent, Judge Dennis expresses concern about the majority's ruling that raises questions about "whether aliens such as Portillo-Munoz are part of 'the people,' and have any rights at all, under the First, Second, and Fourth Amendments." Regular readers of this blog know that what really interests me about the majority's ruling is whether and how it might impact application of the Second Amendment to another large class of persons, namely felons who are indisputably Americans, but have often are deemed excluded from the Second Amendment's protection because they were not always "law-abiding citizens" (even though they would generally seem to be "members of the political community").