July 23, 2011
Are there any compelling arguments against now recording all executions?
The question in the title of this post is prompted in part by a question I was posed by a reporter yesterday. Because I am a fan of transparency and because I often sense that purported harms from public exposure in this context (and others) are overstated, while potential benefits are underappreciated, I had a hard time coming up with any arguments against recording execution that seemed to me even remotely compelling.
I recognize that, as an academic and blogger, it may be personal interest rather than objective astuteness that prevents me from recognizing strong arguments against recording of all executions. Still, in the wake of the Georgia execution being videotaped without any apparent difficulties this week (basics here), I want to tee up the question in the title of the post here. Any new thoughts, thoughtful readers?
Recent and older related posts:
- NYT piece on lethal injection
- Shouldn't all executions now be recorded on video?
- A call for truly public executions?
- The uncut Saddam's execution video and death penalty aesthetics
- Why shouldn't Georgia lethal injection — and all executions — be recorded on video?
Assailing "out-of-control" federal sentencing guidelines for fraud offenses
Federal sentencing superstars James Felman and Mary Price have this effective new opinion piece in The National Law Journal headlined "Out-of-control fraud guidelines: Four reforms would restore common sense to sentences that have become draconian, disproportionate to the crimes." Here are excerpts:
Not long ago, first-time perpetrators of economic crimes frequently received sentences of probation with special conditions for compensating their victims. Lengthy prison sentences for nonviolent financially motivated offenders were correctly deemed unnecessary. The purposes of sentencing could be accomplished without removing them from society for extended periods of time. These offenders suffer a multitude of unique collateral consequences, including the all-but-certain end to their careers, and the social stigma of a steep and public fall from grace....
Between 1987 and 2001 the Sentencing Commission repeatedly amended the guidelines, adding sentence-inflating enhancements. In 2001, it overhauled the guidelines and voted to increase sentences based on the amount of loss. The ink was barely dry when, just two years later, Congress reacted to public anger over corporate scandals, directing the commission to up them again. It did so with a slew of amendments that increased fraud sentences across the board and enhanced sanctions based on factors that are present in nearly every major fraud....
The result? According to Judge Frederic Block of the Eastern District of New York, "we now have an advisory guidelines regime where…any officer or director of virtually any public corporation who has committed securities fraud will be confronted with a guidelines calculation either calling for or approaching lifetime imprisonment." U.S. v. Parris, 573 F. Supp. 2d 744 (E.D.N.Y. 2008). Put another way, economic crime offenders today can easily face a prison term once reserved for murderers, terrorists and serial rapists.
Judges have made their distaste for such sentences clear by not imposing them. In response, the Sentencing Commission has announced a comprehensive review of the fraud guideline. We welcome the review and have put together a working group of former policymakers, legal experts and attorneys to promote four reforms to restore common sense to the fraud guideline.
First, reduce the current excessive emphasis on actual or intended monetary loss. Second, better account for whether and to what extent the defendant received a monetary gain from the offense. Third, ensure that greater weight is put on the defendant's personal responsibility for the offense conduct, intent and other individual circumstances that should bear on punishment. Finally, eliminate double-counting aspects of the offense by striking redundant enhancements.
These reforms will help ensure that fraud sentences are proportional to the severity of the offense and to individual culpability and circumstances. Greedy perpetrators of fraud should receive stiff sentences. Society, however, can avoid the costs of subjecting less blameworthy offenders to punishments that are excessive, inefficient and counterproductive.
July 23, 2011 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (6) | TrackBack
California inmates end hunger strike (after success?)
As detailed in this article from the San Francisco Chronicle, it appears that inmates "have ended a three-week hunger strike in the high-security Pelican Bay State Prison in Del Norte County to protest conditions in isolation units at the facility and what they said were oppressive gang-security measures by prison officials." Here is more:
Advocates for the prisoners said they got confirmation late Thursday from the inmates themselves. Meanwhile, some inmates in three other state prisons who were refusing to eat in solidarity with those in Pelican Bay were continuing their strike until they could also receive confirmation, state officials said.
"Most inmates at Pelican Bay started eating again last night, and as of 1 p.m. today they were all eating," Terry Thornton, spokeswoman for the California Department of Corrections and Rehabilitation, said Thursday....
The hunger strike began at Pelican Bay near the Oregon border on July 1 and, at its peak, had spread to 6,600 inmates in at least 13 of California's prisons, according to the Prisoner Hunger Strike Solidarity coalition in Oakland, which is speaking for the prisoners....
The strike began winding down after inmates spoke with prison system staff and "better understood" plans to review and change some policies, officials said.
Among five key demands, the Pelican Bay strikers had called for more lenient treatment in strict isolation units and the abolishment of "debriefings" - lengthy interviews that prison officials use to determine inmates' gang member status. The prisoners said the debriefing process can result in an inmate being incorrectly labeled a snitch, making him a target for violence.
Thornton said the measures the Department of Corrections is considering include easing restrictions in isolation units so inmates can make phone calls and get calendars and cold-weather caps, as well as expanded educational opportunities.
Recent related posts concerning this hunger strike in California prisons:
- Can a hunger strike by state prisoners in SHU have an impact?
- Hunger strike among California prisoners growing
- "Barbarous Confinement"
- Are there First Amendment problems with California officials blocking media access to all hunger-striking prisoners?
July 22, 2011
You be the prosecutor: charge or no charge in accidental child shootings?
The question and challenge in the title of this post is drawn from this interesting and compelling story from Missouri, which is headlined "Prosecutors in St. Louis area face tough decisions in child shooting deaths." Here are the particulars:
Michael Lesnick knows the pain of losing a child due to carelessness. In 2007, his 3-year-old son, Joshua, found a loaded pistol left in a nightstand and shot himself in the chest.
Lesnick, a former federal police officer and licensed firearms instructor, pleaded no contest to charges of child endangerment and served a year's probation. So did his wife, who was at their Wisconsin home when Joshua found the gun.
That was the penalty meted out by the criminal justice system. But Lesnick said it doesn't come close to matching his real punishment. "I have to look at my son's killer in the mirror every day," he said. "I am 100 percent responsible for my son's death. That's a heavy, heavy burden." It's a burden, he says, that prosecutors in many cases don't need to aggravate by filing criminal charges.
Three accidental child shootings in the St. Louis area in recent days have left prosecutors here facing the same delicate decision. In Missouri and Illinois, a parent can be charged if they knowingly or recklessly leave a firearm where a child can access it. It is up to a prosecutor to weigh the nuances of the case — including the age of the child, that child's familiarity with guns and the actions of the gun owner — to determine whether charges are warranted.
The decision is made against an emotionally charged backdrop, as with all accidental deaths. A quiet infant is left in a hot car by a distracted parent. A toddler runs toward a lake while his grandmother is inside talking on the phone. In each case, the potential defendant is already wrestling with their own punishment. "They've suffered a great loss already. To put them in prison — does that add insult to injury?" said Timothy Maher, a criminologist at the University of Missouri-St. Louis. "It's a tough call for prosecutors."...
While the laws give prosecutors flexibility to consider the nuances of each case, they also require them to get inside the head of the person who left the gun unattended. "These are very difficult cases to prove and to prosecute because they are emotionally charged and the law requires us to prove someone's mental state," St. Louis Circuit Attorney Jennifer Joyce said in a statement. "As tragic as these cases are, as prosecutors, our focus is to apply the law and determine whether a law has been broken."
Joyce will soon weigh what to do in last week's death of 3-year-old Lilianna Moore, who was playing with a gun she found between two mattresses at her home on Flad Avenue. Joyce would not comment on the case. St. Louis County Prosecuting Attorney Robert McCulloch and St. Clair County State's Attorney Brendan Kelly also would not comment on the recent cases in their jurisdictions.
On Tuesday, 3-year-old Daniel Metz fatally shot himself with a handgun he found in his Maryland Heights home. Daniel's father, Maryland Heights police Officer Ryan Metz, was among the first to respond to the shooting. The gun was owned by Metz for personal use and was not department-issued....
On Wednesday, 5-year-old Kaden Mallory of Belleville was fatally shot in his home by his 10-year-old brother in what police called an "extremely tragic" accidental shooting that occurred while an adult male baby sitter was in the other room. Police have not said whose gun it was....
Lesnick, the former officer from Wisconsin, now lectures on gun safety and is shocked how often he reads about cases like his. He calls it a case of complacency, similar to when people refuse to wear a seat belt. The best thing the criminal justice system can do, he said, is require parents like him to share their stories. "Try to spread the word," he said. "Yes, this can happen to you, and no, you don't want it to happen to you."
Ever the utilitarian thinker, my instinct in these sorts of cases is to bring a criminal charge in order to help "spread the word" as Lesnick puts it. Absent proof of any malice, I would not expect a parent or guardian to get a severe sentence for this kind of accidental crime, and yet the very decision to prosecute will help raise awareness about the risk of these sorts of tragedies. I certainly understand a retribributivist instinct that the parents in these of cases have "already been punished enough," but that notion only leads me to want to ensure the criminal sanction is not too severe after we get the utilitarian benefits of going forward with an initial prosecution.
US Sentencing Commission provides notice of proposed 2012 priorities
The US Sentencing Commission has now posted here its notice of proposed priorities and request for public comment "on possible priority policy issues for the amendment cycle ending May 1, 2012." The notice explains that
the Commission has identified the following tentative priorities:
(1) Continuation of its work on statutory mandatory minimum penalties....
(2) Continuation of its work on implementation of the directives in section 1079A of the Dodd-Frank Wall Street Reform and Consumer Protection Act....
(3) Continuation of its work with the congressional, executive, and judicial branches of government, and other interested parties, to study the manner in which United States v. Booker, 543 U.S. 220 (2005), and subsequent Supreme Court decisions have affected federal sentencing practices, the appellate review of those practices, and the role of the federal sentencing guidelines....
(4) Continuation of its multi-year review of 2D1.1...and possible consideration of amendments to the federal sentencing guidelines for drug offenses....
(5) Continuation of its review of child pornography offenses and report to Congress as a result of such review....
(6) Continuation of its multi-year study of the statutory and guideline definitions of “crime of violence”, “aggravated felony”, “violent felony”, and “drug trafficking offense”....
(7) Continuation of its review of departures within the guidelines....
(8) Continuation of its multi-year review of the guidelines and their application to human rights offenses....
(9) Resolution of circuit conflicts....
(10) Consideration of (A) 5K2.19 (Post-Sentencing Rehabilitative Efforts) (Policy Statement) in light of Pepper v. United States, 131 S. Ct. 1229 (March 2, 2011)....
The Commission hereby gives notice that it is seeking comment on these tentative priorities and on any other issues that interested persons believe the Commission should address during the amendment cycle ending May 1, 2012. To the extent practicable, public comment should include the following: (1) a statement of the issue, including, where appropriate, the scope and manner of study, particular problem areas and possible solutions, and any other matters relevant to a proposed priority; (2) citations to applicable sentencing guidelines, statutes, case law, and constitutional provisions; and (3) a direct and concise statement of why the Commission should make the issue a priority.
Two Seventh Circuit opinions reject efforts to assail lengthy child porn and child enticement sentences
The Seventh Circuit today issued a pair of rulings affirming lengthy sentences over various objections for two men who have now learned the hard way that federal law provides severe punishment for making bad use of a computer.
US v. Brucker, No. 10-3057 (7th Cir. July 22, 2011) (available here), rejects a series of creative constitutional challenges to the 10-year mandatory minimum prison term imposed on a 62-year-old man who sought to hook-up with a 15-year-old "Lisa," who turned out to be "in fact an online persona for a deputy in the Peoria County Sheriff’s Office."
US v. Adams, No. 10-2968 (7th Cir. July 22, 2011) (available here), rejects a series of not-so-creative reasonableness challenges to the 15-year (below-guideline) prison term impose on 38-year-old Air Force veteran man who traded lots of awful kiddie porn via the Limewire program.
I am not sure there is anything all that legally notable about these two opinions, but I cannot help but note how mundane these offenders and their significant sentences now appear to anyone who follows federal sex offender prosecution and sentencing.
Sixth Circuit panel reverses drug sentence on "the admittedly unfair ground of insufficient clairvoyance"
The title of this post makes more sense if and when one reads today's ruling by the Sixth Circuit in US v. Priester, No. 08-2391 (6th Cir. July 22, 2011) (available here). Here is how the decision starts:
In some cases we hold the district court to a standard we would dislike imposing on ourselves. This is such a case. Xavier Priester pled guilty to conspiring to distribute crack cocaine, powder cocaine, and marijuana. The district court sentenced him to a within-Guidelines 180 months’ imprisonment. The court’s explanation as to why it chose that sentence was exemplary — with one exception. The exception is what Priester targets here. He argues, specifically, that the district court failed to recognize that it had the authority to “vary categorically” from the crackcocaine guidelines in choosing Priester’s sentence. The existence of that authority was made clear in a Supreme Court case — Spears v. United States, 555 U.S. 261, 265–66 (2009) (per curiam) — that was itself decided after the district court sentenced Priester. S o we have the benefit of that decision, whereas the district court did not. Having parsed the sentencing transcript, we agree with Priester that the district court appeared unaware of the authority that the Supreme Court expressly announced months later. And thus — on the admittedly unfair ground of insufficient clairvoyance — we vacate Priester’s sentence and remand the case for resentencing.
Judge Boggs dissents from the panel's disposition, and his opinion begins this way:
While the majority opinion acknowledges the problematic nature of reversing a district judge because of a Supreme Court decision issued after the judge ruled, (Maj. Op. at 2), that is a problem inherent in our system. What the majority opinion calls “the admittedly unfair ground of insufficient clairvoyance,” ibid., does occur with some frequency, and is not a basis for dissent. However, I think there is a more fundamental problem here. The perceived flaw in the district judge’s conduct was not in following a legal principle that the Supreme Court later rejected. Instead, it was (apparently) in not realizing that he needed to articulate on the record his recognition of a power that had not been explicitly sanctioned by the Supreme Court. See Spears v. United States, 129 S. Ct. 840, 843-44 (2009) (per curiam). To make matters worse, this failure occurred in a context where no one clearly asked him to assert such a power.
July 21, 2011
"DeYoung executed with videographer documenting his death"
The title of this post is the headline of this news report from Georgia on the first recorded execution in the United States in nearly two decades. Here are the specifics:
With a video camera recording his last moments, Andrew Grant DeYoung was executed Thursday night at the Georgia Diagnostic and Classification Center for killing three family members. Georgia Department of Correction Andrew DeYoung was sentenced to death for killing his 41-year-old parents and 14-year-old sister in the family's northeast Cobb home in 1993.
DeYoung was declared dead at 8:04 p.m., fewer than 15 minutes after the process began. Lying prone, he barely moved throughout the execution. His parting words were: "I'm sorry for everyone I've hurt."
For the first time in Georgia, a videographer was present in the execution chamber, documenting DeYoung's death and his reaction to a new three-drug lethal injection that anti-death penalty activists said caused unnecessary pain and suffering. The videographer, accompanied by a woman taking notes, stood off to the side and was barely visible to witnesses.
DeYoung, however, only blinked his eyes and swallowed repeatedly, and showed no violent signs in death. He was checked by a nurse for consciousness shortly into the execution, a new procedure put in place. At 8:22 p.m., he was taken from the prison in a black Butts County Coronor van.
It is believed this was the first execution involving lethal injection that was videotaped in the nation. In 1992, a California execution was recorded on video, but the gas chamber was in use. The execution of Timothy McVeigh, the Oklahoma City bomber, was shown live over a closed-circuit broadcast from an Indiana prison to victims or family members of the deceased watching in Oklahoma City....
Hours before Thursday's execution, Fulton County Superior Court Judge Bensonetta Tipton Lane rejected the state's attempt to have the Georgia Supreme Court review her ruling that allowed the execution videotaping.
Lane, overseeing the appeal of death-row inmate Gregory Walker, had ordered the recording of DeYoung’s execution after hearing claims the state’s lethal injection process caused unnecessary pain and suffering. The execution videotaping was the first in almost two decades nationally, since it was permitted in California. No other states with the death penalty currently allow it.
Walker's attorneys asked the Fulton County judge to order DeYoung’s execution videotaped. Lane agreed but said the tape had to be immediately placed under court seal. The state Supreme Court supported that decision.
Recent and older related posts:
- NYT piece on lethal injection
- Shouldn't all executions now be recorded on video?
- The uncut Saddam's execution video and death penalty aesthetics
- A call for truly public executions?
In wake of lethal injection ruling and stay, Ohio Governor postpones next execution (for 18 months!?!)
The immediate echo effects of the recent notable Smith lethal injection ruling (basics here and here) have now become a bit clearer, at least in Ohio. Today, as detailed in this Reuters piece, Ohio Governor John Kasich postponed the execution of another Ohio death row inmate: "Kasich postponed the execution of Brett Hartman from August 16, 2011 until November 13, 2012." Here is more:
According to the governor, the postponement will give the Department of Rehabilitation and Correction the needed time to implement changes to the execution protocol mandated by the judge's ruling.
Hartman was sentenced to death for the 1997 killing of Winda Snipes in Akron....
Carlo LoParo, spokesman for the correction department, said it is in the process of drafting more comprehensive policies and practices in light of the court decision. The draft is not yet available to the public but is expected to be completed in time for the next scheduled execution, which is that of inmate Billy Slagle on September 20, 2011.
This official press release from the Ohio Governor does not give any explanation for why this execution has been pushed back a full 18 months. As noted in this recent post, the Ohio Supreme Court has scheduled monthly executions all the way out to September 2012, and maybe the lengthy Ohio queue in part explains why Brett Hartman is getting an extra 18 months to live now from Governor Kasich.
I cannot help but comment that there is a macabre irony to the fact that Hartman, by being the next murderer scheduled to be executed following the Smith ruling that prompted Ohio to revamp its protocol, is getting an extra 18 months to live. I suppose time (and future litigation) will tell if Billy Slagle is going to get the same "lucky" benefit from Ohio's execution scheduling.
Some recent related posts:
- Federal district judge finds Equal Protection Clause violated by Ohio's injection processes
- New Ohio lethal injection ruling provides lessons in litigation realities, the rule of law and a law of rules
- Why Smith Equal Protection ruling and execution stay in Ohio is a huge (and national?) new death penalty story
- Ohio decides not to appeal federal district court ruling in Smith halting execution
- Ohio's queue for executions now 11 deep and more than a year long
"Californians would rather ease penalties than pay more for prisons"
The title of this post is the headline of this new Los Angeles Times article which reports on the results of a recent poll. Here are some of the the details:
Cash-strapped Californians would rather ease "third-strike" penalties for some criminals and accept felons as neighbors than dig deeper into their pockets to relieve prison overcrowding, a new poll shows.
In the wake of a court order that the state move more than 33,000 inmates out of its packed prisons, an overwhelming number of voters oppose higher taxes — as well as cuts in key state services — to pay for more lockup space.
The survey, by The Times and the USC Dornsife College of Letters, Arts and Sciences, shows a clear shift in attitude by residents forced to confront the cost of tough sentencing laws passed in recent decades.
The poll canvassed 1,507 registered California voters between July 6 and July 17, about six weeks after the U.S. Supreme Court upheld an earlier court order requiring the inmate numbers to be cut. It was conducted by two firms in the Washington, D.C., area: Greenberg Quinlan Rosner, a Democratic firm, and American Viewpoint, a Republican firm....
The pollsters noted that people don't generally favor the release of convicted criminals. But "when it comes to prisons," said Linda DiVall of American Viewpoint, "voters are looking for solutions that don't raise taxes or take money from other priorities like education."
Only 12% of respondents said they'd be willing to accept less state spending on healthcare or education to pay for more prisons. And less than a quarter of voters want to pay higher taxes to build prisons or ship inmates to private lockups in other states to comply with the courts.
Why shouldn't Georgia lethal injection — and all executions — be recorded on video?
The leading question in the title of this post is prompted by the fascinating execution debate unfolding in Georgia over the last few days. This ABC News story provides the background:
The Georgia Supreme Court and U.S. Supreme Court let stand a Fulton County, Ga., judge's order to videotape an execution, but that execution was postponed until Thursday evening. This is thought to be the first time a lethal injection will be recorded and the first time in almost two decades that an execution will be recorded.
The original decision to videotape the execution came after attorneys claimed that one of the drugs administered in the lethal injection may cause unnecessary suffering.
Andrew Grant DeYoung, 37, had been scheduled to be executed at 7 p.m. for the 1993 murders of his sister and parents, but the execution did not occur on schedule as appeals worked their way through the courts.
After the U.S. Supreme Court ruled on the case late Wednesday, Georgia prison officials delayed the execution until Thursday at 7 p.m. Georgia Attorney General Sam Olens would not say why the execution was rescheduled, according to The Associated Press.
DeYoung was charged with stabbing his family to death in hopes of receiving an inheritance he could use to fund a business venture.
Gregory Walker, another death row inmate, was the petitioner for the order requesting the videotaping. "The petitioner seeks such access in order to preserve potential evidence regarding whether the respondent and the Department of Corrections are taking appropriate steps to prevent needless suffering through the course of execution," said the order, signed by Superior Court Judge Bensonetta Tipton Lane on Monday.
The order added that the videotaping would proceed only if DeYoung was not opposed to it. After the execution, the tape is to be immediately sealed and no copies can be made. Though DeYoung consented to the video recording, his lawyers spent Tuesday in federal court arguing that the execution should be postponed until more is known about the controversial drug now being used in the executions.
This new AP story, headlined "Ga. court asked to reconsider video execution," reports that the top state lawyer in Georgia is still trying to block the video recording:
The attorney general's office is asking a state judge to reconsider a ruling allowing the scheduled execution of Andrew DeYoung to be recorded on video. The recording was requested by another death row inmate seeking evidence Georgia's reconfigured lethal injection procedure.
State prosecutors filed the request in Butts County early Thursday, less than a day after DeYoung's execution was delayed. The Georgia Supreme Court had upheld the lower court's order allowing the video, citing a procedural error by the state. The matter was expected to come before Georgia's top court again Thursday.
Even novice American legal historians likely know that there is a long tradition of public executions in the United States. Thus tradition and constitutional originalism would not seem to suggest obvious reasons why modern executions should have to be kept secret. (The picture above is a (in)famous photo of the last public hanging in the United States which took place in Kentucky in 1936. The website Execution Today has this effective account of the execution.)
Perhaps more importantly, as this Georgia case highlights, there is on-going uncertainty and widespread litigation about the efficacy of, and circumstances surrounding, modern lethal injection protocols. For this reason, I asked more than four years ago in this post "Shouldn't all executions now be recorded on video?", and I continue to see the legal value and litigation importance of making a visual record of all modern executions.
Of course, I fully acknowledge that any video recording of an execution could be misused, but the same can be said for lots of video of government functions. Moreover, I think transparency and public access to important governmental activities ought to be a paramount concern in these kinds of debates. (But, of course, my interests here are surely influenced by my role as an academic and blogger, and I might feel very different were I a participant in an execution.)
Some older related posts:
- NYT piece on lethal injection
- The uncut Saddam's execution video and death penalty aesthetics
- A call for truly public executions?
"Do Sentencing Enhancements for Drunk Driving Decrease Recidivism? a Regression Discontinuity Approach"
The title of this post is the title of this new empirical paper by Miguel De Figueiredo, which has this abstract:
Using micro-level data on drunk driving arrests in Arkansas, this paper exploits discontinuities in sentencing enhancements at various blood alcohol content (BAC) levels to estimate causally the effect of the increasing penalties on recidivism. Specifically, the research design examines defendants just above and just below a BAC level of 0.15 to see if the effect of an increased license suspension by an additional two months has an effect on recidivism.
The paper finds that increased penalties in the neighborhood of the discontinuity in the form of license suspensions have no statistically significant effect on drunk driving recidivism, suggesting that the increased penalty does not deter defendants from committing another drunk driving offense in the future. The paper’s focus on suspension of privileges as a form of punishment, coupled with its rich micro-level data (15,973 defendants from two jurisdictions) and research design that enables reliable causal inferences and estimation, make it contrast with numerous studies in the extant literature.
Effective discussion of Apprendi's application to corporate fines
Thanks to this post at White Collar CrimProf Blog, I see that a District Court in California has issued an interesting and effective opinion in United States v. Au Optronics Corporation, No. C 09-00110 SI (N.D. Cal. July 18, 2011) (available here), concerning tha application of Apprendi to corporate fines. Here are snippets from the ruling:
In light of the fact that the maximum fine in this case will depend upon proof of the gain or loss caused by the conspiracy, the government seeks two related orders from the Court. First, claiming that evidence of the effects of the alleged antitrust conspiracy is irrelevant to the defendants’ guilt, the government requests that the Court bifurcate the trial into a guilt phase and a penalty phase. Second, claiming that criminal fines are exempt from the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), the government seeks an order that the evidence presented in the penalty phase need not be presented to a jury....
Until recently, there would have been little reason to doubt Apprendi’s applicability to fines. Two circuits had applied Apprendi’s holding to criminal fines....[But] last year the First Circuit held that criminal fines were exempt from Apprendi’s rule [based on dicta in the Supreme Court's Ice decision]....
The government argues that this Court should follow the First Circuit. Relying largely on the same reasoning as the First Circuit, it contends that under historical practices fines fell within the sole discretion of the trial judge.... The government argues that this historical practice renders Apprendi inapplicable to the fines in this case.
The Court is unconvinced. As an initial matter, the Supreme Court’s statement in Ice is dicta, made without the benefit of briefing or argument in a case whose facts do not remotely resemble the facts of this case. While, of course, Supreme Court dicta is compelling, losing sight of Apprendi’s mandate based upon one clause in Ice risks losing the forest for the trees.....
The fine in this case is the primary form of punishment the government seeks and could amount to as much as $1 billion, ten times more than the fine authorized by the Sherman Act. The magnitude and primacy of such punishment puts it in a separate class from an ordinary criminal fine imposed against a defendant who faces incarceration. In the Court’s view, this is reason enough to apply Apprendi’s mandate and require a jury to find the amount of gain or loss under the alternative fines statute.
The historical practices the government has cited simply do not seem well suited for the situation before the Court, where incarceration -- or whippings, for that matter -- is not a penalty the Court can impose. The Sherman Act authorizes a maximum fine of $100 million. Should the government wish to go beyond that act’s authorization and seek a significantly larger fine based upon the establishment of additional facts, it must do so by following Apprendi’s mandate, and by proving those facts to a jury beyond a reasonable doubt.
Notable execution mid-summer execution news from Georgia and Texas
Two interesting execution stories were developing last night in Georgia and Texas, although the stories linked below showcase that one of these stories continue today:
Coming from Georgia, "Videotaped Execution by Lethal Injection Set for Thursday"
Coming from Texas, "Texas Inmate Mark 'Arab Slayer' Stroman Executed"
"Who’s Better at Defending Criminals? Does Type of Defense Attorney Matter in Terms of Producing Favorable Case Outcomes"
The title of this post is the title of this notable empirical paper by Thomas Cohen from the U.S. Bureau of Justice Statistics, which is available now via SSRN. Here is the abstract:
The role of defense counsel in criminal cases constitutes a topic of substantial importance for judges, prosecutors, defense attorneys, scholars, and policymakers. What types of defense counsel (e.g., public defenders, privately retained attorneys, or assigned counsel) represent defendants in criminal cases and how do these defense counsel types perform in terms of securing favorable outcomes for their clients?
These and other issues are addressed in this article analyzing felony case processing data from the Bureau of Justice Statistics (BJS). Specifically, this paper examines whether there are differences between defense counsel type and the adjudication and sentencing phases of criminal case processing. Results show that private attorneys and public defenders secure similar adjudication and sentencing outcomes for their clients. Defendants with assigned counsel, however, receive less favorable outcomes compared to their counterparts with public defenders. This article concludes by discussing the policy implications of these findings and possible avenues for future research.
July 20, 2011
Significant new fast-track disparity ruling from Seventh Circuit
A Seventh Circuit panel has handed down an interesting and important new ruling about fast-track disparity sentencing consideration in US v. Ramirez, No. 09-3932 (7th Cir. July 20, 2011) (available here). Here is how the decision starts:
We have consolidated these appeals to answer a recurring question: What evidentiary showing must a defendant charged with being found in the United States after previously having been deported, 8 U.S.C. § 1326(a), make before a district court is obliged to consider his request for a lower sentence to account for the absence of a fast-track program in that judicial district? The question has been percolating since we decided United States v. Reyes-Hernandez, 624 F.3d 405, 417, 420 (7th Cir. 2010), which permits sentencing courts to compensate for fast-track disparities but emphasizes that no district judge is required to evaluate this mitigating argument until the defendant demonstrates that he would have been eligible to participate in a fast-track program and, in fact, would have “pursued the option” had it been available. The contours of this threshold qualification have not been defined in a published opinion, but four nonprecedential orders offer helpful guidance. See United States v. Vazquez-Pita, 411 F. App’x 887 (7th Cir. 2011); United States v. Morant-Jones, 411 F. App’x 885 (7th Cir. 2011); United States v. Abasta-Ruiz, 409 F. App’x 949 (7th Cir. 2011); United States v. Torres-Vasquez, 406 F. App’x 40 (7th Cir. 2010). And in one of these appeals now before us, we directed the parties to submit supplemental statements addressing the question.
We hold that a district court need not address a fast-track argument unless the defendant has shown that he is similarly situated to persons who actually would receive a benefit in a fast-track district. That means that the defendant must promptly plead guilty, agree to the factual basis proffered by the government, and execute an enforceable waiver of specific rights before or during the plea colloquy. It also means that the defendant must establish that he would receive a fast-track sentence in at least one district offering the program and submit a thorough account of the likely imprisonment range in the districts where he is eligible, as well a candid assessment of the number of programs for which he would not qualify. Until the defendant meets these preconditions, his “disparity” argument is illusory and may be passed over in silence.
NJ appeals court upholds lifetime sex offender registration based on buttocks horseplay by 14-year-olds
A helpful reader altered me to this notable sex offender registration news story coming from New Jersey, which is headlined "2 N.J. teens labeled sex offenders for life after 'horseplay' incident." Here are the basics:
Call it bullying or call it horseplay. Either way, a state appellate court panel says roughhousing with a sexual connotation by a pair of 14-year-old Somerset County boys was a crime that requires them to register as sex offenders for the rest of their lives.
In a decision handed down Monday, the three-judge panel acknowledged the severity of its decision, but said it was bound to uphold the law. "We are keenly aware that our decision may have profound lifelong ramifications for these two boys as well as others similarly situated," Judge Jose Fuentes wrote.
One of the boys, whose case went to trial, said he had sat on the faces of a pair of 12-year-old schoolmates with his bare buttocks in November 2008 "cause I thought it was funny and I was trying to get my friends to laugh," he told a family court judge.
But an act is considered criminal sexual contact if it is done for sexual gratification or to degrade or humiliate the victim, and punishable by lifetime registration — even for juveniles — under Megan’s Law, which requires a person convicted of a sex crime against a child to notify police of changes of address or employment.
The trial judge concluded the teenager intended to humiliate or degrade his victims and found him guilty of criminal sexual contact. The second teenager who was implicated pleaded guilty to criminal sexual contact, and received the same penalty.
The full appellate court opinion in this case is available at this link.
Quick circuit split on Tapia's impact for revocation of supervised release
I have been meaning to blog about an interesting First Circuit ruling earlier this month in US v. Molignaro, No. 10-1320 (1st Cir. July 6, 2011) (available here). As revealed by the introductory paragraph quoted below, the First Circuit in Molignaro (per retired Justice Souter sitting by designation) applied SCOTUS's recent ruling in Tapia to reverse a lengthened term of imprisonment intended to facilitate a defendant's rehabilitation upon revocation of his supervised release:
Acting under 18 U.S.C. § 3583(e), the district court revoked the order for supervised release and resentenced the defendant. Federal advisory sentencing guidelines recommended imprisonment of 3 to 9 months after such a violation, but the district court ordered 22 months (followed by further supervised release). The court imposed the longer prison sentence so that Molignaro would have ample time to take part in a course of sex therapy at a nearby federal prison (Devens) that could run for up to 18 months, and although the judge did not state the period he would have imposed in the absence of the treatment program, he did say that 9 months would have been too short in light of what he found to be Molignaro's choices to go where children were present and the risk of untoward behavior was great. Molignaro objected that setting the imprisonment term with the goal of providing therapy was error as a matter of law, and that in any case 22 months was unreasonably long. We hold that the resentencing court's objective of tailoring the length of imprisonment to provide adequate time for treatment was barred by statute, and we vacate the sentence and remand for resentencing.
I am finally now getting around to blogging about this interesting First Circuit ruling because yesterday a Fifth Circuit panel came out the other way on this issue in US v. Breland, No. 10-60610 (5th Cir. July 19, 2011) (available here). Breland, which discusses Tapia but not Molignaro, starts this way:
The question presented in this appeal is whether a district court may consider a defendant’s rehabilitative needs when revoking the defendant’s supervised release and requiring him to serve the remainder of his sentence in prison. The district court sentenced the defendant, William C. Breland Jr., to thirty-five months of imprisonment upon revocation of his supervised release. On appeal, Breland challenges the procedural reasonableness of that sentence, arguing that the district court imposed it for the sole purpose of qualifying him for the Bureau of Prison’s (“BOP”) 500-hour drug-treatment program. He also challenges the substantive reasonableness of the sentence. Because the plain language and operation of 18 U.S.C. § 3583(e) and (g), which governs post revocation sentencing, permits the consideration of rehabilitative needs, and because Breland’s sentence is not otherwise unreasonable, we affirm.
July 20, 2011 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0) | TrackBack
"Police union sues Gov. Rick Scott over private prison plan"
The title of this post is the headline of this interesting local report out of Florida. Here is how it begins:
The union that represents state correctional officers is suing Gov. Rick Scott's administration, seeking to derail a massive privatization of state prison operations in 18 South Florida counties.
The suit, filed by the Florida Police Benevolent Association against Corrections Secretary Edwin Buss, hopes to block a plan to privatize 30 prisons in Miami-Dade, Broward and 16 other counties. The prisons house about 20 percent of Florida's 102,000 inmates.
Buss said Tuesday he has not reviewed the lawsuit. "I'm not sure what the legal argument is, given that this was a legislative mandate," Buss said. "To us, it's like a bell that's already been rung. We're working under a very aggressive time line, and we need to get started on it right away."
The privatization plan was included as part of the 2011-12 state budget as a way to shave costs. The Legislature required the state to have vendors in place to run the prisons by Jan. 1, 2012.
The union maintains that privatization will result in the loss of jobs by its members. The lawsuit claims the language in the budget mandating the outsourcing is unconstitutionally broad. "We want to stop prison privatization altogether, but we certainly want to stop this 18-county takeover," said Matt Puckett, the union's Florida executive director. "We consider this just a handout."
Did Casey Anthony prosecutors violate Brady by intentionally withholding favorable evidence?
The question in the title of this post is prompted by this recent New York Times article, headlined "Software Designer Reports Error in Anthony Trial." Here are the details:
Assertions by the prosecution that Casey Anthony conducted extensive computer searches on the word “chloroform” were based on inaccurate data, a software designer who testified at the trial said Monday. The designer, John Bradley, said Ms. Anthony had visited what the prosecution said was a crucial Web site only once, not 84 times, as prosecutors had asserted. He came to that conclusion after redesigning his software, and immediately alerted prosecutors and the police about the mistake, he said....
The Orange County Sheriff’s Office had used the software to validate its finding that Ms. Anthony had searched for information about chloroform 84 times, a conclusion that Mr. Bradley says turned out to be wrong. Mr. Bradley said he immediately alerted a prosecutor, Linda Drane Burdick, and Sgt. Kevin Stenger of the Sheriff’s Office in late June through e-mail and by telephone to tell them of his new findings. Mr. Bradley said he conducted a second analysis after discovering discrepancies that were never brought to his attention by prosecutors or the police.
Mr. Bradley’s findings were not presented to the jury and the record was never corrected, he said. Prosecutors are required to reveal all information that is exculpatory to the defense. “I gave the police everything they needed to present a new report,” Mr. Bradley said....
Cheney Mason, one of Ms. Anthony’s defense lawyers, said it was “outrageous” that prosecutors withheld critical information on the “chloroform” searches. “The prosecution is absolutely obligated to bring forth to the court any and all evidence that could be exculpatory,” Mr. Mason said. “If in fact this is true, and the prosecution concealed this new information, it is more than shame on them. It is outrageous.”...
Capt. Angelo Nieves, media relations commander for the Orange County Sheriff’s Office, said Mr. Bradley had a vested interest in coming forward since his software was used in the investigation. “We’re not going to relive the trial again,” Captain Nieves said. “We are not prepared to do that nor are we going to participate in that.”
A former Canadian police sergeant who specializes in computer forensic analysis, Mr. Bradley said he first became suspicious of the data after he testified on June 8. He said he had been called to testify by the prosecution about his CacheBack software. Instead, he was asked repeatedly about the Sheriff’s Office report detailing the 84 search hits on “chloroform,” which he had not seen....
Concerned that the analysis using CacheBack could be wrong and that a woman’s life might be at stake, Mr. Bradley went back to the drawing board and redesigned a portion of his software to get a more accurate picture.... His more thorough analysis showed that the Web site sci-spot.com was visited only once — not 84 times.
Mr. Bradley, fearing that jurors were being given false information based on his data, contacted the police and the prosecution the weekend of June 25. He asked Sergeant Stenger about the discrepancy, and the sergeant said he was aware of it, Mr. Bradley said. He waited to see if prosecutors would correct the record. They did not. “They needed to get that right,” Mr. Bradley said.
July 19, 2011
Seeking information on large number “other government-sponsored departures” in federal child pornography cases
Among my projects for this summer is to try to better understand just how most federal child pornography cases are process and sentenced. An early bit of data-mining with the help of an able research assistant prompts the request/inquiry in the title of this post. Specifically, I am curious about the stories/reasons surrounding one notable data point from the US Sentencing Commission, namely the significant number of child porn cases involving so-called "other" government-sponsored downward departures.
As federal sentencing practitioners know, the vast majority of downward departures recommended by federal prosecutors stem from early pleas in "fast-track" districts under § 5K3.1 or from because a defendant provided "substantial assistance" and benefitted from a motion under § 5K1.1. But according to FY 2010 data from the USSC, zero child porn defendants got a fast-track break and only 57 of 1,886 child pornography cases (3%) involved a substantial-assistance downward departure.
But, these same FY 2010 USSC data document a comparative large number “other government-sponsored departures”: over 10% of child pornography cases in FY 2010 (195 cases out 1,886) involved a below-guideline sentence based on some "other" government-sponsored departure. (This represents roughly triple the number of such departures in all other cases in which only about 3.5% of dispositions involved an "other" government-sponsored downward departure.) Moveover, it appear that a trend toward regular use of "other government-sponsored [downward] departures" in child porn cases is picking up speed: in the USSC data for the first half of FY 2011, we see the government has sponsored "other" downward departures in nearly 15% of all cases (132 of 911 total cases).
Notably, Table 25 of the USSC 2010 Sourcebook of Federal Sentencing Statistics available here compiles the reasons given by sentencing courts for downward departures from the guideline range. The Commission makes no table publicly available reporting reasons given by the government for sponsoring an "other" downward departure. I asked my research assistant to see if cases reported on Lexis and Westlaw provide any qualitative information about these departures, but the online databases provide little insight on just when the government has sponsored a downward departure or the specific factors motivating the prosecutor to sponsor these types of departures.
These data and realities prompt a range of follow-up questions. I wonder if there any internal guidelines (or external transparency) concerning this growing group of cases. I wonder if prosecutors in certain districts or circuits use these kinds of "other" government-sponsored downward departures more than others. I wonder if the USSC can effectively identify and report (and codify) the reasons most often given for these kinds of departures. I wonder if this trend will continue and expand to other kinds of cases.
I could go on and on, but for now I hope I have with this post effectively explained the phenomenon I am trying to better understand. I also hope at least a few federal prosecutors and/or defense attorneys may with experiences with these kinds of departures may be able to help me understand just what is now often going on in these cases.
July 19, 2011 in Booker in district courts, Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack
"No death penalty for 17-year-old accused of killing parents, partying"
The title of this post is the headline of this press report on the constitutional sentencing limits on the punishment that can be received by an already notorious teenage murder suspect. Here are the details of what is the latest high-profile Florida crime (largely because of how the defendant apparently "celebrated" killing his parents):
Because of his age, 17-year-old Tyler Hadley will not face the death penalty if he’s convicted in the brutal slaying of his parents, officials with the State Attorney’s Office confirmed Tuesday. If he's eventually convicted ... Hadley could be ordered to serve a maximum penalty of life in prison.
Hadley, the Port St. Lucie teen accused of posting an invitation to a party on Facebook, then killing his parents with a hammer, made his first appearance before a judge Tuesday morning.
Chief Assistant State Attorney Tom Bakkedahl said afterwards that the state's ultimate punishment can't be considered here because several years ago the U.S. Supreme Court determined "it would be cruel and unusual to subject minors to the death penalty."
"It’s simply off the table; it’s not a viable option," Bakkedahl said Tuesday. "Despite the fact that the case may otherwise in all respects warrant the death penalty, we are prohibited from seeking it as a result of him being approximately six-months short of his 18th birthday."...
Police accuse Hadley of killing his parents Blake and Mary Jo Hadley. Their bodies were found in their locked bedroom in the 300 block of Northeast Granduer Avenue on Sunday morning. Hadley was initially arrested as a juvenile, but Monday he was charged as an adult of two counts of 2nd-degree murder with a weapon and is being held on no bond at the St. Lucie County jail....
Bakkedahl, who was attending the Hadley autopsies at the Medical Examiner’s office in Fort Pierce, said state law requires the case be presented to a grand jury in order to seek first-degree murder charges.
Based on the criminal investigation conducted by Port St. Lucie police, Bakkedahl said evidence gathered supports charges of first-degree murder. "I think it’s going to be a clear first-degree murder case," he said. "The only difference between this and any other first-degree murder case is as a result of his age, he does not face the prospect of the death penalty."...
Early Sunday morning, Port St. Lucie police received an anonymous tip indicating a 17-year-old might have killed his parents and the bodies had been in the home during a party attended by as many as 60 people. Police went to the home about 4:20 a.m. Sunday. There police found a hammer between the bodies of Mary Jo Hadley, 47, and 54-year-old Blake Hadley. Tyler Hadley was arrested late Sunday....
"It was a merciless killing. It was brutal and the Facebook invitation — a party to have your friends and 40 to 60 people come over — I think speaks for itself," Port St. Lucie police Capt. Don Kryak said, standing at the scene Monday. "The blunt force trauma to the head and torso with a 22-inch framing hammer can effect a considerable amount of injury."
Police believe Tyler Hadley acted alone, but officials don't know a motive. The former St. Lucie West Centennial High School student made no incriminating statements.
Kryak said the Facebook party invitation was posted about 1:15 p.m. or 1:30 p.m. Saturday — before the homicides occurred. Investigators suspect Tyler Hadley's mother was killed first, and then his father, and that the slayings happened outside the master bedroom door of the single-story home in the 300 block of Northeast Granduer Avenue.
In addition to providing a high-profile example of the impact of the Supreme Court's Roper limit on the application of the death penalty, I can imagine this disturbing case having some indirect impact on post-Graham legislative and litigation efforts to prevent LWOP sentences for even juvenile killers.
Split Ninth Circuit panel reverses conviction based on online threats to then-candidate Barack Obama
Though not exactly a sentencing decision, I suspect readers of this blog will be interested in a split opinion from the Ninth Circuit today in US v. Bagdasarian, No. 09-5052 (9th Cir. July 19, 2011) (available here). Here is part of the start of the majority opinion in Bagdasarian, which was authored by Judge Reinhardt and joined by Chief Judge Kozinski:
Here, we review a district court’s conviction under 18 U.S.C. § 879(a)(3), which makes it a felony to threaten to kill or do bodily harm to a major presidential candidate. The defendant Walter Bagdasarian, an especially unpleasant fellow, was found guilty on two counts of making the following statements on an online message board two weeks before the presidential election: (1) “Re: Obama fk the niggar, he will have a 50 cal in the head soon” and (2) “shoot the nig.” These statements are particularly repugnant because they directly encourage violence. We nevertheless hold that neither of them constitutes an offense within the meaning of the threat statute under which Bagdasarian was convicted.
Here is the start of the partial dissenting opinion in Bagdasarian, per Judge Wardlaw:
I concur fully with the majority’s analysis of the law of “true threats.” The First Amendment prohibits the criminalization of pure speech unless the government proves that the speaker specifically intended to threaten. Thus, in every threats case the Constitution requires that the subjective test is met. Virginia v. Black, 538 U.S. 343 (2003). In this case, the statute at issue, 18 U.S.C. § 879(a)(3), also requires that a reasonable person would foresee that his statement would be perceived as a threat to harm a presidential candidate. Because there is sufficient evidence supporting a finding of objective intent, Jackson v. Virginia, 443 U.S. 307, 319 (1979), and because even under the heightened standard of review that we apply to constitutional facts, Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058, 1070 (9th Cir. 2002) (en banc), the subjective intent requirement is also met, I conclude there is sufficient evidence to find Mr. Bagdasarian guilty of threatening harm against then-presidential candidate Barack Obama.
Are there First Amendment problems with California officials blocking media access to all hunger-striking prisoners?
The question in the title of this post is prompted by this new Los Angeles Times piece headlined "Prisoners' hunger strike in its third week." Here is the parts of this report prompting my inquiry:
More than 400 inmates at four California prisons are in the third week of a hunger strike to protest long, punitive stays in isolation cells.
Prison officials, who refuse to allow reporters into the institutions to interview the strikers, said 49 inmates who have lost at least 10 pounds each are "being monitored closely," including seven at Pelican Bay, the maximum-security prison near the Oregon border where the hunger strike began.
An inmate at the state prison in Tehachapi in Central California has lost 29 pounds, according to Nancy Kincaid, spokeswoman for the court-appointed receiver in charge of prison healthcare.
Inmate advocates say thousands of inmates have joined the strike, which began July 1. Many are beginning to show dramatic weight loss and collapse with the early signs of starvation, they say. Dozens have been sent to prison infirmaries because of irregular heartbeats and fainting, according to a statement issued Monday by a group calling itself California Prison Hunger Strike Solidarity, which represents attorneys and family members of inmates. "Most have lost 20-35 pounds," the statement said....
Despite repeated assurances that the situation is under control, the California Department of Corrections and Rehabilitation refused The Times' request to visit and interview striking inmates.
"At this time, we are not allowing media into the prison due to security and safety issues," prison spokesman Oscar Hidalgo said in an email. "This hunger strike signifies a disruption in normal operation of Pelican Bay and our operations staff are focused completely on resolving this issue."...
The inmates are protesting lengthy stays in Security Housing Units, known as prisons within the prison, where they are sent for violating rules. They are typically kept alone in their cells for 22 hours a day, allowed out for medical visits and for exercise in individual wire cages on the prison yard.
I know that the Supreme Court has repeatedly said that prisoners First Amendment rights are have significantly limited while they are behind bars, but these rights are not completely extinguished. In addition, I would think the traditional media might be able to assert some of its own First Amendment rights to try to get access to at least a few of the hunger-striking prisoners. Legitimate safety and security issues likely do not justify restricting access to every one of the hundreds of prisoners involved in this hunger strike.
Any free speech experts out there have any wisdom on this front?
Recent related posts concerning this hunger strike in California prisons:
- Can a hunger strike by state prisoners in SHU have an impact?
- Hunger strike among California prisoners growing
- "Barbarous Confinement"
"Changing Lives Through Literature: Bibliotherapy and Recidivism Among Probationers"
The title of this post is the title of this notable new piece by Russell Schutt now available via SSRN. Here is the abstract:
Although probation is the most common correctional disposition in the United States, research indicates that standard probation has little to no effect on recidivism rates. However, a growing body of evidence indicates that enhanced probation programs can reduce the likelihood of additional criminal offending. This paper examines a bibliotherapy program that is designed to reduce criminal offending and has been adopted in at least six states. Called Changing Lives Through Literature, the program reduces probation sentences in exchange for participation in a small discussion focused on a book and including probation officers and judges as well as probationers.
A limited multi-method qualitative study was used to investigate program process and a longitudinal probation database containing offense incidents was used to identify program effect on recidivism. Program participants (673) in five jurisdictions were compared to a comparison sample of 1,574 probationers in the same jurisdictions. The process analysis indicated that many program participants experienced the program as transformative. The impact analysis indicates a significant reduction in the rate of arrests before and after program participation as well as a significant decline in the maximum severity of the offense charged for those who were rearrested. Regression analysis indicates that these declines were independent of background factors, drug use, and years of criminal history and that they were particularly pronounced for drug users and those who were older. These results suggest the importance of a focus in enhanced probation programs on cognitive change and establishing new social relations.
July 18, 2011
A (justifiably) sharp reaction to AG Holder's new position on FSA crack pipeline cases
As set out in this post from Friday, I was very pleased to learn that Attorney General Eric Holder had sent a two-page memo to all federal prosecutors explaining that he now, finally, believed the FSA's new statutory sentencing terms should apply to all defendants sentenced after the effective date of the FSA. I also expressed my disappointment that the Justice Department argued a contrary (and, in my view, deeply misguided) position in courts around the nation for nearly a year. I thereafter received a sharp email from Dan Stiller, a Wisconsin federal public defender, which he has allowed me to reprint here in full:
The celebration of the Holder memo announcing the AG's flip-flop is justified but, thus far, short-sighted. The position taken in the memo is curative but only to a point. For 11 months now, AUSAs from coast-to-coast have, at the AG's command, stood before federal courts, arguing an arcane constitutional provision as a means of narrowing the FSA's reach. As a result, hundreds of defendants over those 11 months have been sentenced to no-longer applicable mandatory minimums.
Worse, the AG's position over those 11 months has resulted in law -- bad law -- being made and the AG's change-of-heart doesn't (and shouldn't) change the recent jurisprudence. Here in the Seventh Circuit, the court's stated reason for declining to apply the FSA to pre-enactment conduct being sentenced post-enactment was not "because such is the Government's position." Instead, the Seventh Circuit, acting upon the Government's now-abandoned suggestion, concluded that the savings clause precludes the FSA's application to pre-enactment conduct. The AG's flip-flop can't, to borrow Judge Walton's phrase from the Clemens trial, unring the relevant bell.
So while we celebrate the Holder memo, I fear the plight of my 170-gram pre-enactment client who appears for sentencing on Wednesday before a district court within the Seventh Circuit. While I will be waiving the Holder memo in the direction of the bench, I fear that the judge will waive the Seventh Circuit's decision in Fisher back at me. If so, my client will be sentenced to a defunct mandatory minimum that is nearly double the low-end of his post-enactment guideline range. So forgive me if my celebration of the Holder memo is muted.
Some prior 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
- 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
- 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
- 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
- Eleventh Circuit panel rules FSA's lower crack terms apply to defendants sentenced after enactment
- Only a year late, AG Holder sees light and reverses course on FSA pipeline sentencing issue
Perhaps the new Google+ service should promise to keep probation officers out
The silly (tech-savvy?) title of this post is prompted in part by the new Google+ service seeking to complete with Facebook, along with this lengthy effective piece from the Louisville Courier-Journal which is headlined "Busted by Facebook: Some on probation learn the hard way that online posts can backfire." Here are excerpts from the piece:
If you don't want to do the time, stay offline. Or at the very least, don't “friend” your probation officer.
Convicted of possessing methamphetamine and Ecstasy, Scott W. Roby learned that the hard way. The Louisville man had his probation revoked this month — and was sentenced to two years in prison — in part for violating conditions that required him to stay alcohol-free and out of bars and liquor stores.
Roby had invited his probation officer to be his friend on Facebook, then Roby posted pictures of himself drinking — including one in which he was holding a beer while posed next to “Buddy Bat,” the mascot for the Louisville Bats, said prosecutor Dinah Koehler. In another Facebook post, according to court records, Roby asked: “Anyone wanna go get smashed tonight one last time before the end of the Earth?”
Judges, prosecutors, defense attorneys and the Kentucky Department of Corrections say that with increasing regularity, offenders on probation are losing their freedom or incurring other sanctions after posting pictures online of themselves clubbing, using “beer bongs,” posing with firearms or bragging about out-of-town trips they've made without their probation officer's permission....
Kentucky is not the only place where offenders are getting kicked off probation for implicating themselves online.
In Connecticut, according to press accounts, a woman convicted of killing a teenager while driving drunk had three years added to her sentence in 2009, in part because she was shown posing with alcohol in virtually every picture on her Facebook page — “worshipping at the altar of alcohol, debauchery and lewd behavior,” a prosecutor said.
The ABA Journal recently reported that the first thing some criminal-defense lawyers tell clients now is to shut down their Facebook accounts....
Civil libertarians seem to have no problem with corrections officials monitoring social- media sites. “To the extent individuals voluntarily post information on social-networking sites that are accessible to others, the use of that information to establish a violation of probation or parole is likely to withstand any claims of invasion of privacy by the poster,” Bill Sharp, a staff attorney for the ACLU of Kentucky, said in an email.
He added, however, that courts must be careful to verify the defendant really was the poster. He cited a recent decision in which the Maryland Supreme Court held that a judge improperly admitted information from a social-networking site where the only evidence that the page belonged to a witness was that it contained his birth date and photograph.
"Colorado inmate sues prison for saving his life"
Convicted murderer Daniel Self has sued Sterling Correctional Facility, claiming that prison guards disregarded a do-not-resuscitate directive when they saved his life. It's not that he isn't grateful, he said. That's not even the point.
"I've been wrongfully convicted and called a baby-killer. Death would be welcome relief," Self said during an interview in a concrete visitor's room rimmed with rolls of razor wire. "Even if you die, they drag your ass back to prison."
From the 54-year-old's perspective, damages in his case are accruing "a million dollars" every day that he must live in the hell that is prison. "Maybe it's a million dollars a minute," he said.
Katherine Sanguinetti, spokeswoman for the Colorado Department of Corrections, said the state has not been served with Self's lawsuit and that she could not comment about the case because it is in litigation.
Self's attorney, Brett Lampiasi, recently filed the suit in U.S. District Court in Denver, claiming prison officials were deliberately indifferent to Self's right to refuse medical treatment.
Self's plight, he said, became more intolerable after he broke his wrist in a fall from his bunk and doctors botched an operation, leaving him in constant pain with a deformed wrist, the suit says. He went eight months before corrective surgery was performed, the suit claims, and he was not given prescribed pain medications.
Before he went to prison, Self lived in Colorado Springs and set up lighting for live band performances at nightclubs. He was convicted of fatally shooting his girlfriend, Leah Kathleen Gee, 24, in March 2003. Gee was pregnant. He claims that she shot herself.
New research shows positive outcomes from drug court programs
Via an email from the folks at the Center for Court Innovation, I have learned of important new research finding that drug courts are often successful at reducing substance abuse and crime. Here is an excerpt from the email describing this new research:
Researchers at the Urban Institute, the Center for Court Innovation, and RTI International have recently completed perhaps the most ambitious study of drug courts to date. Funded by the National Institute of Justice, the five-year multi-site study compared participants in 23 drug courts in seven states to similar defendants who went through conventional case processing. The results offer vivid evidence that drug courts are effective at reducing both substance abuse and crime.
Among other findings, the study documented that drug court participants were one-third less likely to report using drugs 18 months after their enrollment in the program. And they were responsible for less than half as many criminal acts as the comparison group after 18 months. Largely because of these reductions in criminal behavior, drug courts ended up saving an estimated $5,680 per participant — cost savings that closely resemble those found in previous studies in California and Washington State.
In examining why drug courts have succeeded, the evaluation focused in particular on the role of the judge and the value of procedural fairness. The fact that drug court participants generally had more favorable perceptions of the judge than the comparison group was among the most important factors explaining why drug courts reduced drug use and crime.
The title of this post is the headline of this new op-ed in the New York Times. Here are excerpts:
More than 1,700 prisoners in California, many of whom are in maximum isolation units, have gone on a hunger strike. The protest began with inmates in the Security Housing Unit at Pelican Bay State Prison. How they have managed to communicate with each other is anyone’s guess — but their protest is everyone’s concern. Many of these prisoners have been sent to virtually total isolation and enforced idleness for no crime, not even for alleged infractions of prison regulations. Their isolation, which can last for decades, is often not explicitly disciplinary, and therefore not subject to court oversight. Their treatment is simply a matter of administrative convenience.
Solitary confinement has been transmuted from an occasional tool of discipline into a widespread form of preventive detention. The Supreme Court, over the last two decades, has whittled steadily away at the rights of inmates, surrendering to prison administrators virtually all control over what is done to those held in “administrative segregation.” Since it is not defined as punishment for a crime, it does not fall under “cruel and unusual punishment,” the reasoning goes....
Officials at Pelican Bay, in Northern California, claim that those incarcerated in the Security Housing Unit are “the worst of the worst.” Yet often it is the most vulnerable, especially the mentally ill, not the most violent, who end up in indefinite isolation. Placement is haphazard and arbitrary; it focuses on those perceived as troublemakers or simply disliked by correctional officers and, most of all, alleged gang members. Often, the decisions are not based on evidence. And before the inmates are released from the barbarity of 22-hour-a-day isolation into normal prison conditions (themselves shameful) they are often expected to “debrief,” or spill the beans on other gang members....
Hunger strikes are the only weapon these prisoners have left. Legal avenues are closed. Communication with the outside world, even with family members, is so restricted as to be meaningless. Possessions — paper and pencil, reading matter, photos of family members, even hand-drawn pictures — are removed. (They could contain coded messages between gang members, we are told, or their loss may persuade the inmates to snitch when every other deprivation has failed.)...
Do we find our ethics by forcing prisoners to live in what Judge Henderson described as the setting of “senseless suffering” and “wretched misery”? Maybe our reaction to hunger strikes should involve some self-reflection. Not allowing inmates to choose death as an escape from a murderous fate or as a protest against continued degradation depends, as we will see when doctors come to make their judgment calls, on the skilled manipulation of techniques that are indistinguishable from torture. Maybe one way to react to prisoners whose only reaction to bestial treatment is to starve themselves to death might be to do the unthinkable — to treat them like human beings.
Recent related posts:
- Can a hunger strike by state prisoners in SHU have an impact?
- Hunger strike among California prisoners growing
July 17, 2011
"Man charged with DUI after winning demolition derby"
The title of this post is the headline of this amusing local article from Kentucky sent my way by a helpful reader. Here are the specifics:
Moments after winning the demolition derby at the Jessamine County Fair Wednesday night, a man ended up being taken to jail. Nicholasville Police say 36-year-old David Warner was drunk, so they charged him with DUI.
Police say during the demolition derby itself, they began receiving complaints about Warner, claiming he was under the influence. As soon as the derby was over, police say they approached Warner as he got out of his car.
Police say Warner was staggering, and having trouble standing up straight. Police then gave Warner a sobriety test. Officers said he was clearly drunk. Warner was immediately placed under arrest and charged with DUI....
Warner talked to NEWSFIRST Thursday afternoon saying he was unfairly treated, and called the charge ridiculous. "I mean, I'm not denying I wasn't drinking by no means, but I was not drunk. I was under the limit," said David Warner.
Warner claims he drank a few beers before hitting the track, to "loosen me up," but he said it wasn't enough to warrant a DUI. "I'm not perfect, but this has gone too far, and I will fight it," he said.
Fair officials say they're discussing their options. That could include stripping Warner of his trophy and prize money.
New ACLU report claims California's death penalty is already dead
The ACLU of Northern California has released this notable new report on the Golden State's death penalty system. The report his titled, "California's Death Penalty is Dead: Anatomy of a Failure," and here is part of the executive summary:
California’s death penalty is dead. Prosecutors, legislators and taxpayers are turning to permanent imprisonment with no chance of parole as evidence grows that the system is costly, risky, and dangerous to public safety. New polls also indicate that voters favor replacing the death penalty with life in prison without the possibility of parole, with a requirement for work and restitution paid to the Victims’ Compensation Fund.
Most significantly, only three death sentences were handed down in California from January to June 2011, compared with the same period last year when there were 13. This is the lowest number of new death sentences in a six month period since the death penalty was reinstated in 1978, and a clear indicator that district attorneys and jurors across the state are turning away from the death penalty. On average, 49% of death sentences are decided in the first six months of the year. This means that California may be on track for a total of less than 10 death sentences in 2011 -- the lowest number in 33 years.
Three other related developments reveal a system in total collapse:
California has not executed anyone since 2006 and there is no reason to believe that executions will ever resume.....
Death penalty promoters have been snubbed at the ballot box....
Death penalty costs are extraordinary and detrimental to public safety at a time of economic crisis.
Some recent related posts:
- "California's idea of the death penalty is to bore them to death"
- California legislative panel advances proposal to put state DP repeal on 2012 ballot
- Will cost arguments convince California voters to ditch the death penalty in 2012?