June 21, 2011
"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").