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July 30, 2011

Lansing medical marijuana shop giving away pot to folks who register to vote

Especially because it has been a bit too serious on this blog lately, I want to challenge commentors to come up with comical (or semi-serious) responses to this local story from Michigan, which carries the headline "Register to vote, get free pot."  Here is the basic story:

Lansing, Michigan residents who register to vote could get free pot.  One medical marijuana shop in Lansing is using that incentive to entice its clients. The clinic claims it's just doing its civic duty, but is it going too far?

"It wasn't ever to lure patients or try to buy their votes -- no, not at all," says Shekina Pena, the owner of "Your Healthy Choice Clinic."  For the past month and a half she and other dispensaries in the area have been running a voter registration campaign.

She says she's been educating patients and caregivers on the medical marijuana ordinance and who on city council supports it.   "We let them know how we feel, we don't tell them who to vote for," says Pena. "We definitely want to support the ones who are supporting us."  On the Site, the clinic offers half a gram or a free medible, which is one of their food products, as a thank you for registering.

Lansing City Clerk Chris Swope says the clinic is treading on a very fine line because the giveaway seems to be too closely tied to which candidates the clinic supports.... "There are very clear prohibitions in the law about giving someone any type of consideration for voting or voting a certain way or you can't give someone an enticement for not voting," says Swope.

Swope says if the clinic gave people pot and explicitly told them who to vote for or who not to vote for then, without question, they'd be breaking the law, but Pena says that's not what the clinic is doing.  "We really got to fight to get the voters out there because the polls are showing there's 4-5,000 people in Lansing that are patients or caregivers so we need those 4-5,000 people to come forth to the polls and vote for whomever they feel is in support of what they want for access," she says....

Swope says this is not a clear cut issue, which his office will continue to investigate. State Senator Rick Jones says he believes the clinic is using marijuana to influence voting and has contacted the attorney general's office to look into the issue.

So, to get the jokes started, I will say that this "get out the vote" campaign might end up especially successful if the dispensaries follow-up by offering free munchies at the polls on election day.  (I know that's pretty lame, so do better in the comments, dear readers.)

July 30, 2011 in Drug Offense Sentencing, Elections and sentencing issues in political debates | Permalink | Comments (4) | TrackBack

"''The Mess We’re In': Five Steps Towards the Transformation of Prison Cultures"

The title of this post is the title of this new paper by Professor Lynn Branham, which is available now via SSRN. Here is the abstract:

Few dispute that conditions in prisons need to be improved -- that, for example, prisoners with mental-health problems need to have those problems addressed, and addressed effectively, while they are confined.  But the more fundamental question is whether prisons can be, not just improved, but transformed.  Transformation in this context means deep and sustained changes in the ethos of those who work and live in prisons. That ethos would reflect at least four precepts: (1) hope as an imperative; (2) the viability of renewal; (3) the catharsis that attends personal responsibility and accountability; and (4) the duty and call, extending to prisoners and correctional employees alike, to respect human dignity.

This article rests on the proposition that such “culture busting” in prisons is possible and describes five key steps that need to be taken by each state and the federal government to effectuate the envisioned transformation in their prisons.  Those steps include: (1) Establish a maximal limit on the per-capita imprisonment rate in the jurisdiction that is at least 50% lower than the current national rate and adopt mechanisms to responsibly implement and enforce the limit; (2) Adopt a comprehensive plan to bring transparency and accountability into the operations of the jurisdiction’s prisons, in part through an independent public entity’s monitoring of, and issuance of public reports on, conditions within those prisons; (3) Modify prison policies, practices, and programs to reflect and inculcate a restorative-justice ethos within the prisons; (4) Ensure that a trained and dedicated mentor is assigned to each prisoner at the outset of his or her incarceration; and (5) Implement procedures to accord prisoners a central role in the development of their individualized reentry plan, whose implementation would commence upon their incarceration.

July 30, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (14) | TrackBack

NJ Supreme Court expresses concerns about victim-impact videos at sentencing

As detailed in this lengthy local piece, headlined "Court ruling troubling for victim-impact videos," last week a "New Jersey Supreme Court decision in the case of a Burlington Township woman who killed her police-officer husband in 1999 addressed the issue of victim-impact statements at sentencing hearings, in particular the 'video tributes' played in court for homicide victims."   Here is more about the ruling and its possible impact:

In its July 21 ruling, the high court said defendant Marie Hess was denied her constitutional right to effective assistance of counsel when her defense attorney did not object to a video played at her sentencing that included popular and religious music, a photo of James Hess' tombstone, and footage of his funeral.

"At sentencing, no one questions that a family member can make a statement about a homicide victim or present photographs or even a video showing the victim as he or she lived in the time before his or her death.  The issue is whether there are any limits to the type of video that can be displayed at sentencing," the court wrote.

The court found "the music and the photographs of the victim's childhood and of his tombstone, and the television segment about his funeral, do not project anything meaningful about the victim's life at the time of his death," the opinion said, adding that they should have been redacted because they had "little to no probative value (but) instead have the great capacity to unduly arouse or inflame emotions."

The decision had immediate impact on the trial courts.  In Burlington County, Superior Court Judge Jeanne T. Covert referenced the decision during a vehicular-homicide sentencing, saying she had viewed a video produced by the victim's family and, because it was short and did not include music, she would allow it to be played in the courtroom....

Richard Pompelio, executive director of the New Jersey Crime Victims' Law Center, called the Supreme Court decision troubling.   Pompelio said part of the victims' rights laws, passed in New Jersey in 1991, are a way to give the victim "a voice, a face, and a presence in the courtroom," not influence or prejudice a sentencing.

"I wish the Supreme Court knew the history and understood the importance of victim rights," he said. "Sentencing is really the only time the victim and his survivors have that voice, and they have been able to do that at the sound discretion of the trial judge.  And it has worked."  Even before the high court decision, a trial judge could order a video to be edited....

Advocates worry that a cautious judiciary without clear guidelines of what is allowed and what isn't could shelve victim-impact videos in some courtrooms.  "Judges tend to err on the side of caution, and they do not want to be overturned and, for the matter, to come back for re-sentencing," Pompelio said.  "The question is, will they throw the baby out with the bath water? That would be unfair and unjust."

The full New Jersey Supreme Court ruling in this Hess case is available at this link.

July 30, 2011 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack

DOJ changing lethal injection protocol, further delaying federal executions

Over at Politico, Josh Gerstein has this notable new piece headlined "Feds plan changes to death penalty procedure." Here are excerpts:

It's increasingly likely that President Barack Obama will serve out his entire first-term without presiding over the execution of a prisoner on federal death row, after the federal government decided to move forward with revisions to its death penalty procedures.

The Justice Department informed a federal judge Thursday about its plans to revise the so-called protocol for executions.  Government lawyers gave no reason for the changes, but they likely stem from a shortage of the key drug used in most lethal injection executions in recent decades, sodium thiopental.

"The Federal Bureau of Prisons has decided to modify its lethal injection protocol but the protocol revisions have not yet been finalized," government lawyers wrote in a court filing in a case challenging the constitutionality of the federal execution process.  The Justice Department offered no timeline for completing the new protocol, but offered to update the court monthly on the progress.  A spokeswoman for the department said she had no information beyond the brief statement in the court filing.

Federal executions have been effectively halted since 2006, when a judge blocked executions for three inmates.  Three additional prisoners have been subsquently added to the injunction....

Since the Justice Department agrees that the prisoners who brought the challenge to the current protocol will be entitled to detailed information about the protocol and how it was developed, it seems likely that the legal process of green lighting it could extend through next fall's election....

Just last December, the Justice Department said it was ready to move forward with setting an execution date for Jeffrey Paul, who was convicted in 1997 of the shooting death of a retired, 82-year-old National Park Service employee, Sherman Williams.  However, no execution date was ever set for Paul, who is not covered by the injunction....

Unlike his two predecessors who had served as governors before coming to the White House, Obama has never presided over an execution or the question of whether to grant a reprieve to someone on death row. He does have some familiarity with the issue, though, since he pursued death penalty reform as a state legislator in Illinois.

July 30, 2011 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

July 29, 2011

Tenth Circuit reverses long sentence based on failure to address disparity concerns

The Tenth Circuit released today a fascinating opinion addressing post-Booker sentencing decision-making and review in US v. Lente, No. 10-2194 (10th Cir. July 29, 2011) (available here). The first and the penultimate paragraphs provides the basics of the 34-page panel opinion:

Camille Suzanne Lente challenges her sentence as procedurally and substantively unreasonable.  Ms. Lente killed three young men and seriously injured a young woman in a car accident that occurred when she was driving while intoxicated. She entered a guilty plea to three counts of involuntary manslaughter and one count of assault resulting in serious bodily injury.  She was originally sentenced to 216 months (18 years) in prison, a significant upward variance from her proposed Guidelines range of 46 to 57 months’ imprisonment.   A divided panel of this court vacated her sentence and remanded for resentencing in a per curiam, unpublished decision with no majority opinion.   See United States v. Lente, 323 F. App’x 698, 699 (10th Cir. 2009).  On resentencing, a different district court judge sentenced Ms. Lente to 192 months (16 years) in prison.  She now appeals from her resentencing.  We conclude the district court’s failure to address Ms. Lente’s argument about the need to avoid unwarranted sentencing disparities constitutes reversible procedural error.  Exercising our jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(3), we reverse and remand....

The need to avoid unwarranted disparities is a critical sentencing factor.  Equal justice is a core goal of our constitutional system.  We require courts to justify sentences to meet that goal.  When justification is not forthcoming, the credibility of the sentence suffers. Whether the sentence is five years, ten years, or sixteen years, we insist on the procedural safeguard of explanation to assure us that justice has been done.  We make no judgment about the proper length of Ms. Lente’s sentence.  We remand for proper procedural foundation.

July 29, 2011 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

"Punishment Politics: Gubernatorial Rhetoric, Political Conflict, and the Instrumental Explanation of Mass Incarceration in the American States"

The title of this post is the title of this new piece on SSRN by two researchers at the University of North Carolina. Here is the abstract:

The tension created by the drop in violent crime and the sustained increase in mass incarceration in the American states represents a phenomenon of great theoretical and policy relevance. Previous accounts of that tension have centered on theories of group conflict and instrumentalism.  We argue here that the use of aggressive political rhetoric by state governors to communicate the crime problem is an important correlate of mass incarceration boom.

Using data derived from content analysis of state-of-the-state addresses of governors from all 50 states, we test this rhetoric theory and evaluate its implications alongside instrumental and conflict-based explanations of mass incarceration.  We find that gubernatorial rhetoric has strong effect on mass incarceration but that this effect is moderated by the institutional power of the governor. Instrumentalism is not supported. The key implication of our findings is that mass incarceration is overwhelmingly a policy consequence of the punitive political rhetoric employed by state leaders to exploit the crime problem and mobilize political support.

July 29, 2011 in Data on sentencing, Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

USA Today reports on national differences in punishment for drunk drivers

USA Today has this notable article on drunk driving punishments nationwide.  The piece is headlined "Drunken-driving penalties could depend on your location," and here are excerpts:

When former NBA star and ESPN analyst Jalen Rose was sentenced for a March drunken driving incident this week, one of the biggest factors in his punishment was the location of his arrest: the Detroit suburb of West Bloomfield.... If Rose had been arrested a few miles away in Pontiac, Mich., his chances of going to jail would have been almost zero, Michigan state statistics show.

The case showed the inconsistent punishment meted out for drunken driving in Michigan and across the country. Drunken driving penalties are a lot like real estate values; they depend on location, location, location.

Alaska, Tennessee and Georgia are among the states with mandatory jail time for first offenders, locking up drunks for three, two and one day respectively, a survey of state laws shows. California, Connecticut and Indiana don't require jail for first timers. In Wisconsin, first-offense drunken driving isn't even a crime. It's a civil infraction that results in a ticket.

"There are no set guidelines on this. There's no national standard on this," said Alex R. Piquero, a criminology professor at the University of Texas-Dallas, who has studied drunken driving for more than 20 years. "There is a lot of discretion. It's like a ref on the football field. Everyone holds on every play. Which one is the most egregious of the offense?"

No one doubts the frequency of the problem.  Drunken driving is blamed for 12,744 traffic deaths in 2009, according to National Highway Traffic Safety Administration.  More than 1.4 million drivers are arrested for it annually, according to FBI statistics.

So what to do with them? Different courts use different means, from fines, probation, education classes and jail time , and the court a driver ends up in often is a big factor in the type of punishment handed down.

National research suggests jailing first-time offenders doesn't influence whether they will do it again, said James Fell, senior program director for the Alcohol, Policy and Safety Research Center in Maryland. "The studies show it has no impact," Fell said. "Jail is really only an effective tool if it is used as a threat to make the drunk driver comply with other orders for probation, treatment, community service, alcohol testing."

Federal highway officials and National Institute on Alcohol Abuse and Alcoholism issued sentencing guidelines in 2006 that are used by drunken-driving courts nationwide. "The available evidence suggests that as a specific deterrent, jail terms are extremely costly and no more effective in reducing (drunken-driving) recidivism," the manual notes, adding that one study found "two days in jail may have a specific deterrent effect and may be more effective than a two-week sentence … for first-time offenders."

Instead, the manual suggests several sanctions, including the use of ignition interlock devices that require offenders to blow into a device that prevents the car from starting if the driver has been drinking.

Mothers Against Drunk Driving (MADD) said those devices are the leading tool in stopping drunken driving.  "There needs to be that threat of incarceration because drunk driving is a crime," said Frank Harris, the state legislative affairs manager for the national MADD office.  "But we are finding the most effective way is to have the ignition interlock." Piquero said the jury is still out on the effectiveness of the devices because researchers haven't had the chance to study them yet.

Still, some judges like Small, insist nothing sends a stronger message, to the driver and to other drinkers, than the inside of a jail cell.  Rose's lawyer, Keith Davidson, disagreed, noting Rose has done community service for years, and funded a soon-to-open charter school in Detroit and medical facilities in the Congo.

If research and evidence consistently shows that two days in jail is more effective than two weeks or two months in deterring these crimes, then I hope more judges will give two days in jail.  All along in my commentary on this important matter, I am eager to reduce in whatever ways possible the nearly 13,000 deaths of innocent persons (not to mention many more injuries and probably billions in property damage) that are the result of this crime every year.

July 29, 2011 in Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

"Crack cocaine: One woman's tale"

The title of this post is the headline of this first-person account of the impact of the new crack federal sentencing guidelines appearing in the Chicago Tribune (and forwarded to me by a helpful reader). This piece is authored by Stephanie Nodd, who is in prison in the Coleman Federal Correctional Institution in Florida, and here are excerpts:

Looking back, I know I did something wrong, but I am also sure that I did not need 30 years in prison to learn my lesson.  I am due a second chance, and I plan to make the best of it....

In 1988, just after my 20th birthday, I met a man named John who promised me cash if I helped him set up his new business.  His business was selling crack cocaine. I helped him for a little over a month in return for money I used to pay bills and buy groceries.  After about six weeks, I cut off all ties with John and moved myself and my kids to Boston to start a new life.

We were living in Boston when I was indicted on drug charges in Alabama.  I returned to take responsibility for my mistake.  I prayed I would not have to serve any time because of my clean record and limited involvement.  I could not have been more wrong....

I could not give the prosecutors any information because I did not know anyone.... Meanwhile, John cooperated against everyone, including me. I was eventually charged as a manager in the drug conspiracy and found guilty at trial.  Even though I did not have a criminal record, I was sentenced to 30 years in federal prison.  The year was 1990. George H.W. Bush was president, and no one knew what email was.  I was 23 years old.

I have spent the last two decades behind bars.  Whenever new corrections officers ask me what my sentence is and I tell them 30 years, their first question is always the same: "Who did you kill?"

Earlier this year, the U.S. Sentencing Commission voted to reduce penalties for crack cocaine crimes.  On June 30, the commission voted to apply the new reforms to people serving the long prison sentences required by the old law.  Some people, including some members of Congress, are against retroactivity because they think it will give dangerous criminals a break.  As someone who has already served 21 years in federal prison for a first-time, nonviolent crack offense, I think it's important for the public to get a different perspective.

The truth is that many people are serving sentences that are far longer than I believe is necessary.  I have met women whose husbands, after getting caught selling drugs, turned around and cooperated against their wives in exchange for shorter sentences.  Some of these women had little or no involvement in the drug offense for which they are serving decades in federal prison....

I have tried to stay positive and make the best of a bad situation.  I received my GED, completed college courses and earned other licenses that will allow me to compete for a job when I am finally released.  Thanks to the U.S. Sentencing Commission's vote, I could be released by the end of this year.  I can finally see the light at the end of the tunnel. I know I am not the same woman who kissed her babies goodbye 21 years ago, but I can't wait to be reunited with my children and to meet my new grandchildren.

July 29, 2011 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report | Permalink | Comments (48) | TrackBack

Notable discussion of possible marijuana reforms in Indiana

This local article, headlined "State urged to legalize marijuana," reports on a notable legislative discussion in Indiana.  Here are excerpts:

Reducing or eliminating penalties for minor marijuana possession and legalizing industrial hemp production could add more than $250 million a year to Indiana's bottom line.

According to economic impact estimates presented Thursday to a legislative committee studying the state's marijuana laws, decriminalization would save up to $200 million a year in reduced police, court and prison expenses, while legalizing and taxing marijuana could bring in $50 million of new sales tax revenue. "There's a lot of money and time to be saved in our court system," said state Sen. Karen Tallian, D-Ogden Dunes.

For more than four hours, a panel of state representatives and senators listened attentively as several Hoosiers spoke emotionally of their need for marijuana as medicine -- despite its illegality -- as no other drug or treatment can relieve their chronic pain.

In addition, lawyers and academic experts testified to the selective prosecution of many marijuana possession cases in Indiana, while others spoke of the new jobs and tax revenue that would come by having farmers plant industrial hemp, a form of marijuana that can be turned into everything from clothing to diesel fuel.

State Sen. Brent Steele, R-Bedford, the committee chairman, said he purchased a hemp shirt on a lark last summer and after wearing it repeatedly it's still soft, wrinkle-free and "the best shirt I ever bought."

Tallian said based on the positive response of state lawmakers to Thursday's testimony she expects to sponsor legislation in 2012 to change Indiana's marijuana laws, most likely altering criminal sanctions. Currently possession of any marijuana can result in a one-year prison sentence and a $5,000 fine, while a second possession conviction or possession of more than 30 grams, enough for about 30-40 marijuana cigarettes, nets up to a three-year prison term.

July 29, 2011 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

July 28, 2011

"Can Norwegian punishment fit the crime?"

The question in the title of this post is the headline of this notable piece in USA Today.  Here are excerpts:

[I]n the days since the world learned that Breivik could face a maximum 21-year prison sentence for the killings there has been some criticism of the Norwegian justice.

Anti-Breivik Facebook groups have appeared such as Anders Behring Breivik Haters and Hang Anders Behring Breivik.  One group asked members to vote on whether Norway should reintroduce capital punishment, abolished for civilian crimes in 1902 and banned completely in 1988 (after briefly being used on World War II Nazi collaborators).  The Norwegian daily newspaper Aftenposten reported that 71,000 of 97,000 members replied no.  

But some say Norway may be too easy on criminals even though its crime rates now are low compared with those in the United States.  "Yes, there will be more momentum for those who opine that the Norwegian penalties are too lenient," said Helge Lurås, a terrorism expert at the Norwegian Institute of International Affairs.

Lurås said polls show 25% of Norwegians are in favor of the death penalty; among Progress Party members, who are conservative, the figure is 50%.  But even the right wing in Norway is not prepared to look toward the U.S. system of life sentences without parole for murder.  "My sense is that people tend to feel that the penitentiary system and the penalties are insufficiently punitive" in Norway, Lurås said.  "But I think most Norwegians perceive the U.S. criminal system to be far too harsh."

Since Friday's twin terror attacks in Oslo and the nearby island of Utaya, there have been no street protests in this otherwise usually tolerant Nordic society.  Police attorney Christian Hatlo says it is possible that Breivik might be charged for crimes against humanity and face a 30-year sentence.  And if convicted, he could be held beyond his term's expiration if he is deemed to still be a danger to society, perhaps for life.

Many say Norway's justice system should reflect Norway's values.  "Today, most of the people will say that no penalty is too strong for a mass murder," said Harald Stanghelle, political editor at Aftenposten, in a commentary Wednesday. "It's important then to be aware that we are a just society.  He wanted to crush that just society, while we others want to preserve it."...

Norway has refused to deport foreigners if they could face the death penalty at home, as is the case with Mullah Krekar, founder of terrorist group Ansar al-Islam, who lives in Norway. "I think the American system is based on a value other than the norm in Norway," said Arne Brusgaard, 66, an independent consultant. "In the U.S., the focus is not just on freedom of movement, but also on making the punishment regime tough. As far as I can understand, there is too little focus on rehabilitation and reintroduction into society."

John Christian Elden, a criminal defense lawyer and partner at the law firm Elden, said Norway is being practical in not stacking accumulating sentences for each killing. "A penalty beyond 21 years would neither help society nor the criminal in moving on after release," he said. "It has not been considered to have any greater deterrent effect if one threatens with 21 or 30 or 50 years in prison in preventing someone from committing a crime."

Providing a fitting companion to this report from USA Today is this new op-ed in the New York Times, which is headlined "Justice? Vengeance? You Need Both." Here is how it begins:

Norway, a nation far removed from the wickedness of the world, is now facing one of its greatest moral challenges: What to do with Anders Behring Breivik, the man who has confessed to massacring 76 people, many of them children.  Norway does not allow for capital punishment, and the longest prison sentence a killer can usually receive there is 21 years.  A country of such otherwise good fortune and peaceful intention is now unprepared — legally and morally — to deal with such a monstrous atrocity.

The United States, unfortunately, is much more familiar with this problem. Americans have spent several recent weeks in a vengeful fury over the acquittal of Casey Anthony, who partied for an entire month while her 2-year-old daughter, Caylee, was supposedly missing but might have actually been murdered — by Ms. Anthony.  Many believe that Caylee was denied justice; her mother, meanwhile, has been released from prison and remains hidden in an undisclosed location, largely to protect her from vigilante justice.

The inadequacy of legal justice is one thing, its outright failure is quite another.  But in both cases the attraction of a nonlegal alternative is a powerful one.  Are these vengeful feelings morally appropriate?  The answer is yes — because the actual difference between vengeance and justice is not as great as people think.

Related recent post:

July 28, 2011 in Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (19) | TrackBack

If you always dreamed of owning your own prison...

get out your checkbook and head down to Texas ASAP, as explained in this interesting local article:

Littlefield residents hope to lighten a heavy tax burden with the crack of an auctioneer’s gavel.  The city’s Bill Clayton Detention Center will go on the block today at 11 a.m. for an opening bid of $5 million in the first known auction of a prison in the state.

Littlefield hopes to claw out from under more than $9 million in debt tied to the more than 94,000-square-foot complex, which has remained empty for two years....  [T]he bonds to construct the center have put heavy pressure on the city’s tax rates, and sale proceeds would help buy down the debt.

The detention center was supposed to be an economic boon.  City officials had dreams of it employing up to 150 with a $2.7 million payroll as they prepared to break ground in 1999.

Ultimately, the project expanded to its present 30-acre site in 2005 and housed adult prisoners on contract from the Idaho Department of Corrections, instead of the juvenile offenders they had once planned.

GEO Group Inc., a for-profit prison corporation, laid off all 74 contract workers when it cancelled its contract with the city in 2009.  The group had lost its contract with Idaho because of concerns over prisoner safety.

Inmate Randall McCullough died in Littlefield after spending roughly a year in solitary confinement for an assault on a prison officer.  His son filed a wrongful death lawsuit against the GEO Group last year. That lawsuit is pending in Comal County.     McCullough alleged negligence, fraud and public corruption in his father’s death....

Littlefield has had four visits with six interested parties over the last two months, [the realtor] said.  About half of the prospective bidders would be on site, with the other half participating live via the Internet, he said.  All of the interested buyers are private detention companies.

UPDATE:  This new local piece, headlined "Littlefield prison sells at auction for $6 million," reports on the results of the jail auction.

July 28, 2011 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Noting high cost, and little use, of Pennsylvania's death penalty

The (Allentown) Morning Call has this lengthy piece on the use of capital punishment in the Keystone State. The article is headlined "Pa. death penalty rarely used, but costly," and here is how it begins:

It has been 12 years since Pennsylvania executed a convicted killer, but in that time, death row has still cost taxpayers more than $27 million.

Every year, the state Department of Corrections spends an estimated $10,000 more for each inmate on the country's fourth largest death row compared to other prisoners. That's despite a de facto halt on capital punishment in Pennsylvania for all but prisoners who voluntarily go to their executions. The last person put to death against his will was in 1962, half a century ago.

The most recent to be executed, in 1999, was Philadelphia torture-murderer Gary Heidnik — and only because he bowed to it by waiving his appeals. Since then, the state has housed on average 227 inmates a year facing death sentences, for an additional cost of $27.24 million, or $2.27 million annually. And this when executions have ceased.

The numbers, provided after a request by The Morning Call, offer a peek into the expense of a system in which a death row prisoner is far more likely to die of old age or illness than by lethal injection. They represent the added security costs involved with isolating the inmates in prison. But they are just a fraction of capital punishment's total cost for taxpayers, given the staggering legal bills also tied to putting someone to death.

The accounting comes as unsteady finances have rocked Pennsylvania and local governments, causing layoffs and cuts to services that have affected everything from safety-net programs for the poor to public schools and higher education. The Department of Corrections' budget, at $1.86 billion, remained flat this year.

The death penalty hasn't been part of the budget debate, though some lawmakers say it should be looked at considering the lack of executions. Other states have reconsidered capital punishment in part over its expense, including New Jersey, New Mexico and Illinois, which have repealed the death penalty in the past four years.

For death-penalty opponents, the price tag underscores how much society spends in the unreasonable expectation of exacting the ultimate punishment. For supporters, it shows how a runaway appeal process has kept murderers from their deserved fates, thwarting the will of juries and state lawmakers.

July 28, 2011 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

July 27, 2011

"Federal Judge Rules Florida’s Drug Laws Unconstitutional"

The title of this post is the headline of this press release from the NACDL reporting on a notable habeas ruling handed down today.  Here are highlights of the ruling in Shelton v. Florida DOC, No. No. 6:07-cv-839-Orl-35-KRS (M.D. Fla. July 27, 2011) (available here), as described by the NACDL the press release:

A federal judge in Orlando has declared Florida’s strict-liability controlled substances act unconstitutional on the ground that the law could convict an innocent person of drug distribution who unknowingly possessed, transported or delivered a controlled substance. The laws’ fatal flaw is the lack of a criminal intent requirement, which the legislature purposely removed from the statutes in 2002.

U.S. District Judge Mary S. Scriven found that Florida stands alone among the states in its express elimination of mens rea -- the common-law “guilty mind” requirement -- as an element of a drug offense.

The petitioner, Mackle Vincent Shelton, was convicted of delivery of a controlled substance and traffic charges.  The jury was instructed that “to prove the crime of delivery of cocaine, the state must prove the following two elements beyond a reasonable doubt: that Mackle Vincent Shelton delivered a certain substance; and, that the substance was cocaine.”  The state did not have to prove that he knew he was carrying or distributing cocaine or any controlled substance at all.

In granting Mr. Shelton’s petition for habeas corpus, the court found that Florida’s drug distribution law violates due process because it “regulates inherently innocent conduct.” Indeed, with no intent requirement, a Federal Express delivery person who unknowingly delivers a parcel containing a controlled substance, would be presumed a felon under Florida’s drug law.  Such a criminal statute runs afoul of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution and is also inconsistent with centuries of common law, sound public policy, and the norms of international legal systems and principles generally embraced by the United States.

July 27, 2011 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

ESPN analyst Jalen Rose (sort of) gets max jail sentence for drunk driving

This new AP article, headlined "Jalen Rose gets 20 days in jail for drunk driving," reports on a high-profile (and tough?) DWI sentencing in Michigan today.  Here are the details:

Jalen Rose was sentenced Wednesday to 20 days in jail for a March drunken-driving crash near Detroit, despite a recommendation that the ESPN analyst and former NBA player not serve jail time and the public support of several prominent figures, including Detroit's mayor.

When he pleaded guilty to driving while intoxicated in May, Rose told the judge he drank six martinis before crashing his SUV along a snowy road in West Bloomfield Township. He apologized in a brief statement after Wednesday's hearing. "I'm humbled, I'm embarrassed, and I'm very apologetic. I can assure everyone that nothing like this will ever happen again," he said.

One of his attorneys, Keith Davidson, wasn't so contrite, railing against the sentence handed down by 48th District Court Judge Kimberly Small.  "This was nothing less than an elected judge legislating from the bench," said Keith Davidson.  "This is a man who has given millions of dollars to charity, started schools around the world and worked endlessly for the community, yet her average sentence is 17 days, and she sentenced Mr. Rose to 20 days."

Small, who is known for coming down hard on drunken drivers, lectured the former University of Michigan star for 15 minutes before delivering her sentence.  "I don't think you have an alcohol problem, and I sincerely believe you when you say this will not happen again," she said.  "But there are issues of punishment and deterrence.  The one thing that people never want -- that they will hire expensive lawyers to avoid -- is jail time. That's why I believe it is the right punishment."...

When another of Rose's attorneys, James Burdick, pointed out that the probation department did not recommend jail, Small wasn't having any of it. "The people have hired me, not my probation department," the judge replied.

Rose's actual sentence is 92 days in jail and one year's probation, but Small suspended 72 days of the sentence.  The maximum penalty for the charge is 93 days, but Rose received credit for the night he spent in jail after the crash.

Rose is scheduled to begin serving his 20 days in jail on Tuesday, although Davison said they might appeal before then. "There were two crimes committed in this case.  The first was when Jalen got behind the wheel, and the second one was today," Davidson said.

As regular readers know, I generally fear that drunk driving sentence are often too low for effective deterrence of this potentially very harmful crime.  Thus, I am pleased this high-profile case involves some jail time for Rose.  And I find it quite troubling that Rose's attorney's response is to use silly rhetoric to attack a prison that his client can (and should) complete in a few weeks.

July 27, 2011 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (21) | TrackBack

"Pa., N.J. officials question costs of tough sentencing"

The title of this post is the headline of this local article, which starts this way:

As states across the country struggle with anemic revenue, officials are taking a harder look at one subset of government that eats huge chunks of taxpayer money: prisons.

Corrections officials on both sides of the Delaware say the "get tough on crime" philosophy that has governed prison operations since the early 1980s must change.  It's expensive and, in many cases, it's not working.

"The fact that our budget is $1.86 billion has a lot of people rethinking some of the assumptions we've made in the past," said John E. Wetzel, Pennsylvania's secretary of corrections. "When we over-incarcerate individuals -- and there is a portion of our population that we over-incarcerate -- we're not improving public safety.  Quite the opposite."

Advocates of prison reform say Pennsylvania and New Jersey could be well-positioned for change. Both governors are Republican former prosecutors, credentials that buffer accusations that whittling down the prison population means going "soft" on crime.

And Govs. Corbett and Christie have picked corrections chiefs who support a more rehabilitative approach to corrections, a method that, studies show, can reduce recidivism.

Wetzel and New Jersey's corrections commissioner, Gary M. Lanigan, want to keep nonviolent offenders out of prison, diverting them to drug rehabilitation or other programs instead.     "People are realizing that there is a huge cost to incarceration, and there's ways to do it smarter," Lanigan said.  "There are people who belong in prison and there's people who are better served in the community."

Recidivism remains a problem nationwide; roughly half of those released in New Jersey and Pennsylvania return within three years.

But while New Jersey's prison population has declined 11 percent to 21,182 department inmates since its peak in 1999, Pennsylvania's population continues to increase.  Since 1999, Pennsylvania's prison population has increased 41 percent, and the state now holds more than 51,000 people.  In 2009, Pennsylvania incarcerated more people than any other state that year, according to the U.S. Department of Justice.

July 27, 2011 in Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

State editorials set out (different?) views on death penalty's future

One scheduled and one delayed execution in Delaware and Florida, respectively, has prompted newspaper editorials with very different headlines, but somewhat similar themes:

Though the Delaware editorial reflects more abolitionist sentiments, it makes more pragamatic cost arguments, rather than moral arguments, against the modern administration of the death penalty.  Similarly, the Florida editorial speaks of the need to limit the number and length of death row appeals, but then suggests that "[i]f the state can't fix this system, the death penalty should be abolished."

July 27, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

New JPI report on overburdened of US public defender systems

Coverfinal-full As detailed in this press release,the Justice Policy Institute has today released a new report titled "System Overload: The Costs of Under-Resourcing Public Defense."  According to the press release, this report details that "public defense systems across the country are overburdened, and considers how the busting-at-the-seams systems affect state and county budgets, the lives of those behind bars, the impact on their families, and the challenges of re-entering communities after serving time."  Here is more from the press release:

According to the report, 73 percent of county-based public defender offices lacked the requisite number of attorneys to meet caseload standards; 23 percent of these offices had less than half of the necessary attorneys to meet caseload standards. With an increasing overload of cases, lack of quality defense and a shortage of resources, the report argues, justice is not being served and the wellbeing of millions of people is at stake....

“More resources must be devoted to our nation’s public defense systems. When we fail to invest in quality defense, we pay greater costs down the road -- the costs of more incarceration, less public safety and fewer resources to build healthier communities.  A lack of investments on the front end is creating significant costs in terms of incarceration and the lost contributions of those negatively affected; ultimately taxpayers bear the burden,” said Tracy Velázquez, executive director of the Justice Policy Institute (JPI). “People who, with appropriately resourced counsel, would not serve prison or jail time are disproportionately serving longer, unnecessary sentences: For every $1 we spend on public defense, we are currently spending nearly $14 on corrections. We need to make smarter investments that will keep us safe and not empty our wallets.”

National standards recommend that public defenders handle no more than 150 felony, 400 misdemeanor, 200 juvenile, 200 mental health, or 25 appeals per year. Only 12 percent of county public defender offices with more than 5,000 cases per year had enough lawyers to meet caseload standards.  Nearly 60 percent of county-based public defender offices do not have caseload limits or the authority to refuse cases due to excessive caseloads.  This lack of authority is particularly evident in larger offices with higher caseloads.

July 27, 2011 in Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

More evidence that the US is losing war on pot

I am a believer in the seemingly simple notion that when something is not working, it should be stopped. Thus, articles like this one in the Houston Chronicle make me think we ought to stop out pot prohibition policies.  The piece is headlined "Mexico's cartels rely on their cash crop; Ease of production, high demand make pot a sure bet for gangs," and here is how it begins:

But for its problematic pedigree, Mexico's marijuana might be hailed as a marketing miracle.

The much-maligned weed has suffered decades of punishment — burned, poisoned, ripped from the earth by its roots. Customers have been jailed, suppliers battered by literally cutthroat competition. Better products from Colombia, California and countless suburban back-rooms have somewhat eroded its popularity. Governments refuse to make it honest.

Yet, this pot has persevered. Production grows, quality improves and exports northward hum along. Despite decades of U.S. officials' efforts against it, Mexican marijuana remains widely available, frequently used and commonly disregarded as a danger. "

They are never going to stop it," said Dan Webb, a recently retired anti-narcotics lieutenant with the Texas Department of Public Safety, who now teaches drug enforcement at Sam Houston State University. "It is just like Prohibition," Webb said, comparing Mexico's cannabis trade to the boom in liquor smuggling after the U.S. government outlawed alcohol sales decades ago. "As long as there is a demand, somebody is going to come up with a supply."

Then again, there's that dark legacy. Marijuana sales to American consumers largely finance the gangster warfare that's killed upwards of 40,000 Mexicans in less than five years.

July 27, 2011 in Drug Offense Sentencing, Offense Characteristics | Permalink | Comments (2) | TrackBack

July 26, 2011

"Guns, Crime Control, and a Systemic Approach to Federal Sentencing"

The title of this post is the title of this interesting and provocative article by David Patton, which is available via SSRN.  Here is the abstract:

Recent scholarship about the role of sentencing reform in reducing high levels of incarceration has focused on evidence-based, offender-specific solutions, such as how to better assess offenders' risk of recidivism and their amenability to diversionary programs. This Article proposes a new, systemic approach.  In particular, it suggests that in cases where the primary rationale for steep sentences is crime reduction, as opposed to retributive notions of harm and blameworthiness, judges ought to engage in an evidence-based examination of how the government is making “use” of the sentences it seeks in its law enforcement efforts.  And where the government's efforts fall short, so too should the sentences.  The proposal would not only result in more rational and just sentences, it also has the potential to enhance public safety.

Although law enforcement and prosecutorial strategy have conventionally been viewed as the exclusive territory of the Executive Branch, this Article contends that judges are in fact appropriate and competent institutional actors to examine them.  This Article explores these issues in the context of the federal government's most formal and direct intervention into the prosecution of street crime, Projects “Triggerlock” and “Safe Neighborhoods,” which, in the name of crime control, have resulted in a ten-fold increase in the number of federal “felon-in-possession” prisoners over the past twenty years.

July 26, 2011 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

"Norway killer could be held in 'luxury prison'"

The title of this post is the headline of this report from The (UK) Telegraph, which starts this way: 

Anders Behring Breivik could be jailed in one of the world's most progressive prisons, where inmates enjoys cells equipped with flat screen televisions, minifridges and designer-style furniture.  Halden Fengsel prison was opened last by King Harald V and is home to some of Norway's most hardened criminals, including murderers and rapists.

The jail is spread over 75 acres of woodland just outside Oslo and facilities include a sound studio, jogging trails and a two-bedroom house separate from the main facility where convicts can stay with their families during overnight visits.

Guards move around the prison unarmed and often play sports or eat meals with the men they are tasked with watching.  Half of the prison staff are women, a policy based on research which shows a female presence induces a less aggressive atmosphere.

In a far cry from the brutalist set up of British or American prisons, there is even a "kitchen laboratory" where inmates can take specialist cooking courses.

Speaking at the opening of the jail last year, governor Are Hoidal said: "In the Norwegian prison system, there's a focus on human rights and respect.  We want to build them up, give them confidence through education and work and have them leave as better people."

There is some evidence that the Norwegian approach to prison works, with only around 20 per cent of offenders ending up back behind bars within two years of release, compared to around half of British convicts. 

Related recent post:

July 26, 2011 in Prisons and prisoners, Sentencing around the world | Permalink | Comments (22) | TrackBack

Second Circuit holds prosecutors cannot refuse extra acceptance point based on PSR dispute

The Second Circuit issued an important little guideline-sentencing decision today in US v. Lee, No. 10-493 (2d Cir. July 26, 2011) (available here), which is effectively summarized in this paragraph from the opinion:  

We hold that the government's refusal to move for a third-point reduction under § 3E1.1(b) in this case was based on an unlawful reason, as the government could not refuse to move on the grounds that it had been required to prepare for a Fatico hearing.

July 26, 2011 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Debate continues over whether RI will turn murderer over to feds

In this post last month I reported on Rhode Island Governor Lincoln Chafee's refusal to turn over a suspected murderer in state custody to the federal government because of concern that he would be subject to the federal death penalty.  This new local piece, headlined "Lawyers in D.C. debating death penalty in R.I. murder case," provides the latest news on this interesting federalism battle:

Federal prosecutors and defense lawyers met before the Capital Case Unit of the Justice Department in Washington, D.C., on Monday in the case of Jason Wayne Pleau, who was indicted by a federal grand jury in the robbery and fatal shooting of a Woonsocket gas station manager.

It is the role of the Capital Case Unit, comprising senior Justice Department lawyers, to consider whether federal prosecutors will seek the death penalty or life in prison for Pleau....  The capital unit, after reviewing the positions of the prosecutors and defense lawyers, will make a recommendation to U.S. Attorney General Eric Holder.  He can accept or reject the recommendation.

Pleau, of Providence, is charged with conspiracy, armed robbery and murder for allegedly plotting with a Massachusetts couple to rob David D. Main, 49, of Lincoln, as he tried to make a deposit of $12,500 in gas station receipts at a Citizens Bank branch in Woonsocket on the morning of Sept. 10.  Under the federal Hobbs Act, conspiracy and robbery can carry sentences of life imprisonment or death if a firearm was used in a crime that results in death.

On Thursday, federal prosecutors and lawyers from Governor Chafee’s office will square off before the 1st Circuit Court of Appeals in Boston.  Last month, Chafee refused a request by Neronha’s office to transfer Pleau from the Adult Correctional Institutions to federal custody, citing the state’s longstanding opposition to the death penalty....

Public defender John J. Hardiman told prosecutors May 17 that Pleau would admit to murder and robbery in state court in exchange for a sentence of life without parole in state prison.  Six days later, Attorney General Peter F. Kilmartin’s office dismissed the state charges, so the prosecution is now only by federal authorities....

On June 23, Chafee announced that he would not surrender Pleau, now being held at the Adult Correctional Institutions as a parole violator, because it could expose Pleau to the death penalty.  He says the state justice system is “capable of ensuring that justice is served in this matter.”

On June 30, acting on a petition by the U.S. Attorney’s office, U.S. District Court Judge William E. Smith ordered the governor to turn over Pleau to federal authorities, ruling that under the Constitution’s so-called Supremacy Clause, federal law trumps state law.  The governor said he would comply with the order.

Mann and Hoose then asked the Appeals Court to stay Smith’s order, arguing the case raised questions about a conflict between the powers of the governor in the transfer of defendants and those of federal authorities.  On July 7, a three-judge panel of the Appeals Court stayed the surrender order until it can hear arguments July 28.

Related post:

July 26, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

"The Innocence Effect in Plea Bargaining"

The title of this post is the title of this new article by Professors Oren Gazal-Ayal and Avishalom Tor available via SSRN.  Here is the abstract:

About 95% of all felony convictions in the United States are the result of guilty pleas.  To maintain such a high guilty plea rate, plea bargain offers have to be very attractive, compared to trials.  Most legal scholars argue that these offers are attractive to guilty and innocent defendants alike.  Innocent defendants who cannot signal their innocence to the prosecutor are unable to signal their innocence in a trial too.  Hence, like guilty defendants, they will bargain in the shadow of the trial, and accept plea bargains that reflect the probability of conviction and expected jury-trial sentence.  Plea bargains, so we are told, lead to wrongful convictions.

Many scholars argue that plea bargains should be curtailed because they facilitate wrongful convictions.  Others contend that plea offers can only benefit innocent defendants, by offering them an alternative to the risky trial, which may lead to a much harsher sentence. Yet even while drawing contradictory conclusion regarding this practice, both camps in the debate agree that plea bargains often lead innocents to plead guilty.  They simply argue about the normative implication of this result.

The decades-long plea bargaining debate is based on a combination of scholarly beliefs and theoretical models, with little systematic evidence to support either position.  The present article draws on a diverse set of empirical findings to reveal the innocence effect, whereby innocents are significantly less likely to accept plea offers than their guilty counterparts, even when these offers appear objectively attractive in light of the evidence against them and the expected sanction at trial.  After substantiating the innocence effect, we examine its implications for the plea bargaining debate, showing it requires both camps to reevaluate their policy prescriptions and offering some new proposals of our own to minimize false convictions, better to protect the innocent, and improve the plea bargaining process.

July 26, 2011 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Florida Supreme Court delays execution to allow hearing on new drug in protocol

As detailed in this AP article,a "sharply divided Florida Supreme Court stayed the execution of convicted killer Manuel Valle on Monday so a judge can hear evidence and rule on whether he may feel pain from the use of a new lethal injection drug."  Here is more:

The justices, in a 4-3 decision, delayed Valle's execution for a month, from Aug. 2 until Sept. 1, absent further order of the high court. Valle, 61, was convicted of fatally shooting 41-year-old Coral Gables police officer Luis Pena during a traffic stop 33 years ago.

Florida and several other states have been forced to seek alternatives to sodium thiopental, part of a three-drug cocktail used in lethal injections, because the sedative's sole U.S. manufacturer has stopped making it.

Florida last month adopted a new procedure that substitutes pentobarbital, which would be injected first to render the convict unconscious before the next two drugs are administered. Oklahoma began using the drug last year and other states have followed suit. It has been employed in 18 executions this year but none so far in Florida. Valle's lawyers contend the new drug's use will subject him to "substantial risk of harm" because it has never been tested on humans for purposes of inducing an anesthetic coma.

"The court has determined that Valle's claim as to the use of pentobarbital as an anesthetic in the amount prescribed by Florida's protocol warrants an evidentiary hearing," the majority justices wrote in an unsigned order....

Chief Justice Charles Canady wrote in dissent that Valle is not entitled to a fact-finding hearing because his claims about pentobarbital are not based on hard evidence. "Based on speculation and conjecture, Valle claims the right to judicial micromanaging of the execution process," Canady wrote. "He has no such right."

The relatively brief opinions from the Florida Supreme Court are available at this link.

July 26, 2011 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (9) | TrackBack

July 25, 2011

Fascinating split Ninth Circuit opinion holds federal courts must respect modified state sentence

The majority opinion in a fascinating federal sentencing ruling from the Ninth Circuit today in US v. Yepez, No. 09-50271 (9th Cir. July 25, 2011) (available here), begins this way:

“[C]omity between state and federal courts . . . has been recognized as a bulwark of the federal system.” Allen v. McCurry, 449 U.S. 90, 96 (1980).  California Penal Code § 1203.3 permits state judges who are supervising individuals placed on state probation to terminate retroactively the terms of probation to which they had previously sentenced those defendants.  Each of the defendants in these consolidated appeals was serving such a probationary sentence when he committed and pleaded guilty to the charge of smuggling methamphetamine into the United States.  Before sentencing on the federal charge, however, each defendant obtained a modification order retroactively terminating his state-court probationary sentence as of the day before he committed his federal crime. Each argued to the state judge supervising him that failure to terminate the state probationary term would substantially increase his federal sentencing exposure by rendering him ineligible for safety-valve relief from the otherwise applicable ten-year statutory mandatory minimum. Though each federal district court judge observed that the mandatory minimum sentence was grossly excessive, the judge in Acosta-Montes’s case deferred to the state court’s nunc pro tunc termination of probation while the judge in Yepez’s case did not.  We must determine whether, given the California state courts’ wide latitude to modify ongoing probationary terms under California state law, the federal district courts in calculating criminal history points for purposes of safety valve eligibility must credit state orders terminating probationary sentences. We concluded that they must.

A dissent by a district judge sitting by designation makes these points (among others):

I would hold that United States v. Alba-Flores, 577 F.3d 1104 (9th Cir. 2009), cert. denied, 130 S. Ct. 3344 (2010), controls here in both Yepez and Acosta-Montes.  The Alba-Flores panel held that, because the defendant was serving a sentence of probation of more than one year at the time he committed his federal offense, he was properly assigned two criminal history points pursuant to U.S.S.G. § 4A1.1(d) and was disqualified from obtaining safety valve relief from the mandatory minimum sentence.  577 F.3d at 1111.  The Court reached that holding by concluding that the concrete fact that the defendant was serving a sentence of probation of more than one year at the time of his federal offense was not altered by a state court’s subsequent nunc pro tunc order shortening his term of probation to less than one year....

Nor do I find persuasive the majority’s reliance on principles of comity and federalism. The conduct in these cases by trial counsel for Yepez and Acosta-Montes reeks of the “same odor of gaming the federal sentencing system” that Judge Fernandez noted in Alba-Flores. 577 F.3d at 1111....

The troubling effect of the majority’s holding is that, where convicted federal defendants are facing imposition of federal statutory mandatory minimum sentences in upcoming sentencing proceedings in federal court, it is a state court that will decide whether imposing that mandatory minimum is appropriate.

It will be interested to see if the feds seek en banc or even cert review of this ruling.

July 25, 2011 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

"The factor of faith in crime reduction"

More_god-e1306873932279 The title of this post is the headline of this recent op-ed in the Houston Chronicle by Byron Johnson, a Professor at Baylor University who is the author a notable new book titled "More God, Less Crime: Why Faith Matters and How it Could Matter More." (2011).  Here are excerpts from the op-ed:

[U]nderstanding the nature of the relationship between religion and crime may provide much needed insights to help decision-makers and practitioners operate a more effective criminal justice system.  For example, rigorous research can yield important data assessing the role of thousands of faith-motivated individuals, houses of worship and other faith-based groups interested in crime reduction and offender-rehabilitation programs.  Faith-based approaches to mentoring at-risk youth, drug treatment, restorative justice, cognitive restructuring of offenders or spiritual transformation of prisoners already exist in most communities.  Thus, understanding how religion might prevent crime, or help youth from bad neighborhoods to be resilient in spite of their surroundings, is an important and policy-relevant matter.

Research can help us not only understand how faith might matter, but how these faith-informed approaches can be modified and improved to have greater impact on common civic goals — like crime reduction and public safety — valued by all....

[My research has found that] active participation in a church plays a critical protective role and helps youth to be resilient to the negative influences of living in economically impoverished environments.... I recently completed the most exhaustive systematic review conducted to date of the relevant research literature on religion and crime.  This review located 273 studies on religion and crime that were published between 1944 and 2010. Ninety percent of the studies (247 of 273) find increasing religiosity to be associated with decreases in various measures of crime and delinquency.  Only two out of 273 studies report religion was associated with a harmful outcome....

Put simply, increasing religiosity tends to be associated with decreasing crime. The weight of this evidence is especially intriguing in light of the fact that religion continues to be overlooked by so many. For example, one will look in vain to find any references at all to religion in criminology and criminal justice textbooks.  This is because many social scientists go out of their way to overlook or dismiss the role religion plays in crime reduction in spite of the evidence showing religion is an important protective factor.  Stated differently, religion insulates youth from harmful outcomes like suicide or crime, and helps them to be resilient within communities of disadvantage.  Even more compelling is the fact that most faith-based interventions tend to be volunteer-driven and consequently are cost-effective. In an age of evidence-based government and unprecedented economic struggles, it would seem to be prudent to give more thoughtful attention to the many possibilities that religion and faith-based approaches can bring to bear on matters of crime and justice. 

July 25, 2011 in Offender Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Accuser tells Newsweek she wants to see DSK in jail

Nafissatou Diallo, the woman whose rape accusations led to the arrest of former IMF director Dominique Strauss-Kahn, has now identified herself and described the incident in this Newsweek story. Here is one sentencing highlight from the Newsweek account:

In her interview with NEWSWEEK, Diallo didn’t disguise her anger at Strauss-Kahn.  “Because of him they call me a prostitute,” she said.  “I want him to go to jail. I want him to know there are some places you cannot use your power, you cannot use your money.”  She said she hoped God punishes him.  “We are poor, but we are good,” she said.  “I don’t think about money.”

It is interesting to speculate whether and how these statements by Diallo might make it that much harder for DSK to make the most serious criminal charges he is facing go away by some offer of a monetary settlement (or even a restitution punishment after a plea to a lesser charge). 

Prior posts on DSK charges:

UPDATE:  A helpful reader forwarded to me this on-point recent commentary by Professor Leonard Orland which appeared in The National Law Journal under the headline "How should an ethical prosecutor deal with a high-publicity rape case?"

July 25, 2011 in Celebrity sentencings, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

"Can California Save its Death Sentences? Will Californians Save the Expense?"

The title of this post is the title of this new piece by Professor Scott Howe, which is now available via SSRN.  Here is the abstract:

Imposing a death sentence in California has become symbolism with a staggering price. From 1973 through 2009, California sentenced 927 persons to death but executed only thirteen.  No executions have occurred since 2006.  There are presently 714 persons on death row.  Average delays between death sentences and executions are among the worst in the nation and in some cases will reach 30 years.  One recent study estimated that taxpayers have spent more than $4,000,000,000 on the California death penalty since 1978 and more than $184,000,000 in 2009 alone.

This Article addresses two major questions about the future of California’s death penalty. First, it asks whether California can save its pending death sentences and answers negatively.  I conclude that the courts are unlikely in the near future to declare most of the death sentences unconstitutional due to delay.  Yet, I also conclude that the state is not able to institute reforms that can soon achieve a large and regular flow of executions, which means that a large portion of the pending sentences will not be carried out.

The Article then asks whether Californians will soon take steps to avoid the expense of trying to save all of the death sentences.  I discuss the possibilities and the doubts. Governor Brown has stated that he will not grant blanket commutations.  The options for the legislature are also limited, because the state constitution requires voter approval to amend the death-penalty statutes.  Because of the growing recognition that the current death-penalty system is not sensible, California may be headed toward a public referendum in which the voters will decide.  I present the competing perspectives on the causes of the current malfunction and the solutions that will vie for public acceptance.  Putting aside the view that the death penalty is inherently wrong, I conclude that there will be three non-abolitionist accounts plus one that favors abolition.  I explain why they are all flawed. Because the California death-penalty system is unavoidably hemmed in by economic, cultural and legal constraints that create difficult trade-offs, voters can only try to find the lesser evil among bad options.  I believe that abolition is the lesser evil in California, but the lesser-evil argument is disquieting in that it calls for real sacrifice, and it may not soon win out.

July 25, 2011 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack

Sentences of a few weeks for drunk driving makes Michigan judge uniquely tough

The Detroit Free Press has this follow-up piece to this prior piece on DUI sentencing disparities headlined "Oakland County judge among toughest in nation on 1st-time drunken driving offenders." Here is how it begins:

Judges, as a rule, don't toss first-time drunken drivers in jail for weeks.  But that rule doesn't apply in the courtroom of 48th District Judge Kimberly Small, who routinely jails such offenders -- often for 14 to 30 days or more -- even when they have relatively low blood-alcohol levels.

Small, who has been on the bench in Oakland County for 15 years, is an anomaly nationwide.  She isn't the only judge who orders jail for drunken drivers, but her sentences are longer.

A Free Press survey of all 50 states found that most judges sentence first-time drunken drivers to time served (from their arrest), work release or a weekend in jail, along with probation and community service.  Some states mandate jail time, but never longer than a few days.

In metro Detroit, a handful of judges order jail time for first-time offenders, particularly those with high levels of alcohol in their blood.  But the sentences almost never stretch into weeks or a month.

Small makes no apologies. "Nobody ever thinks you're going to kill somebody," she told the Free Press.  "To me, it's all about protecting the public."

But Small's critics say her approach is excessive and her sentences aren't an effective deterrent for keeping first-time offenders from repeating their mistake.  "It's so that she can say she's tough on crime," said veteran defense attorney Cyril Hall, who says he will no longer represent clients in Small's courtroom because he can do nothing to help them.

Regular readers know that I worry that drunk driving sentences are too often too lenient for such a dangerous and harmful crime.  In addition, as detailed in some prior posts detailed below, a specific technocorrection, namely ignition locks, may be the most effective and most just response to first drunk driving offenses.

Some related posts on sentencing drunk drivers and advocacy for ignition locks:

July 25, 2011 in Criminal Sentences Alternatives, Offense Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

July 24, 2011

Norway mass murderer facing no more than 21 years in (cushy?) prison

As detailed in this press report, which is headlined "Norway killing suspect may get 21 years in jail," it appears that the maximum sentence that could be given to the terrorist who murdered nearly 100 people in Norway is only 21 years in prison:

The person suspected of carrying out terrorist attacks in Norway will be charged for terrorist activity, while the maximum prison sentence in Norway is 21 years, Norway police said Saturday.

Over ninety people have been killed in the two attacks since Friday.

Police have confirmed that arrested 32-year-old Norwegian, Anders Behring Breivik, was involved both in the explosion in Oslo, and in a shooting at a youth summer camp on Utoya Island.  Police did not link the tragedy to any international terrorist organisations but said the suspect was connected with right-wing extremism.

As detailed in prior posts linked below, Norway crime and punishment has previously been noted on this blog because of various press reports on its relatively cushy forms of incarceration.  I do not know if Anders Behring Breivik would be eligible to serve his 21 years in one of these "cushy" Norway prisons, but I do know that a significant number of American criminals involved in relatively minor crack deals and child porn downloading and corporate crimes face much longer prison terms in the US than does a mass murderer in Norway.  Remarkable.

Related prior posts on Norway's prisons:

UPDATE:  Anders Behring Breivik appeared in court this morning, and the details are report in this CBS News piece headlined "Judge: Massacre suspect wanted to 'save Norway'."

July 24, 2011 in Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (45) | TrackBack

"Video of a Lethal Injection Reopens Questions on the Privacy of Executions"

The title of this post is the headline of this new piece in the New York Times.  Here are excerpts:

For decades in the United States, what goes on inside the execution chamber has been largely shrouded from public view, glimpsed only through the accounts of journalists and other witnesses.

But the video recording of Mr. DeYoung’s death, the first since 1992, has once again raised the possibility that executions might be made available for all to see.  In the process, it has reignited a widespread debate about how bright a light to shine on one of the most secretive corners of the criminal justice system.

Legal experts say the decision by Judge Bensonetta Tipton Lane of Fulton County Superior Court to allow the taping in Mr. DeYoung’s case opens the way for defense lawyers across the country to push for the video documentation of other executions.  And it is inevitable, many experts believe, that some of those recordings will make their way onto television or even YouTube, with or without the blessings of a court.

Brian Kammer, a defense lawyer who argued for allowing Mr. DeYoung’s execution to be recorded, said that documenting the death was essential because of the controversy over the drugs used in lethal injections.  “We’ve had three botched lethal injections in Georgia prior to Mr. DeYoung, and we thought it was time to get some hard evidence,” Mr. Kammer said....

In pushing for the video, the lawyers argued that there were problems with an execution in June in Georgia that used the drug; the condemned man, Roy Blankenship, was described by a medical expert as jerking, mumbling and thrashing after the injection was administered.  According to an account of the execution in The Atlanta Journal-Constitution, Mr. DeYoung “showed no violent signs in death.”

Lawyers for the state attorney general opposed the recording, saying that it would threaten security and that “in this day and age of almost thoughtless dissemination of information, there exists a credible risk of public distribution.”  After Mr. DeYoung’s execution, the video was sealed and sent to a judge’s chambers for safekeeping, and Mr. Kammer, for one, said he hoped it stayed hidden.  “It’s a horrible thing that Andrew DeYoung had to go through, and it’s not for the public to see that,” he said....

Whether [public access to a recording of an execution] would be beneficial or harmful has for years been a subject of much contention.  Deborah W. Denno, a professor at Fordham Law School who is an expert on the death penalty, says videotaping executions is important because it provides objective evidence that is not dependent on eyewitness accounts.  The decision to allow the recording of Mr. DeYoung’s death was a sign of the courts’ growing awareness of the need for transparency, Ms. Denno said.

“Presumably,” she said, court officials “are going to act responsibly, and the tape will never see the light of day.”  But if such videos become public, she said, it might not be such a bad thing.  She noted that television cameras are allowed in courtrooms and that the public can take tours of prisons.  “Most of what we do in the criminal justice system in terms of punishment is something that is allegedly open to the public,” Ms. Denno said, “and this is the ultimate form of our process.”

Recent and older related posts:  

July 24, 2011 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Documenting drunk driving sentencing disparities in Detroit

BildeThe Detroit Free Press has this lengthy new piece on sentencing disparities in drunk driving cases.  The piece is headlined "Arrest location could determine the outcome for a drunken-driving penalty," and here is how the piece starts:

More than how much a driver has had to drink or the courtroom skills of his or her lawyer, what most decides the punishment a driver gets for drunken driving in metro Detroit is where he or she gets busted.

South of 8 Mile in Detroit, there's almost no chance a driver will go to jail on a first offense. North of 14 Mile Road in Birmingham and Bloomfield, the same driver can count on a visit to the slammer, a Free Press analysis of local court records shows.

Between the extremes of Detroit and Birmingham, sentencing outcomes run the gamut in metro Detroit. The reason: Michigan law doesn't set guidelines for judges in such cases, beyond limiting the maximum penalty. That gives judges broad discretion to decide the penalty for a crime that led to about 39 arrests a day in Wayne, Oakland and Macomb counties in 2010.

The toughest judges say the consequences of drunken driving can be so great that a strong message must be sent; others say that few first-time offenders repeat and there's no evidence that harsh sentences deter future violations.

Officials of Mothers Against Drunk Driving worry about inconsistent sentences. The group advocates that even first-time offenders be required to have ignition locking devices on their vehicles that won't allow operation if alcohol is detected on the driver's breath. Such devices are "sure and swift punishment," said Frank Harris, the state Legislative Affairs manager for MADD's national headquarters.

Without sentencing guidelines in state, judge's philosophy could determine outcome in drunken-driving cases. Ford Motor heiress and executive Elena Ford got two years probation and community service for driving drunk in April with her 11-year-old son in the car in Ferndale.

On Wednesday, former University of Michigan and NBA basketball star Jalen Rose faces a likely jail sentence after pleading guilty to driving drunk in a one-car crash in March in West Bloomfield. District Judge Kimberly Small, who has a reputation as the toughest sentencing judge in metro Detroit on drunken-driving cases, will choose his punishment. Even for first offenses, she almost always orders jail time.

Why the difference between Ford and Rose? Without state sentencing guidelines, judges throughout the state can and do treat the misdemeanor crime differently.

Like Ford, Detroit Lions president Tom Lewand avoided a jail sentence when he was arrested on drunken driving charges last summer near Houghton Lake. He pleaded guilty to impaired driving and was sentenced to six months probation and community service.

A Free Press examination of state and local records and interviews with many judges and attorneys found that more than any other factor in drunken-driving cases, location matters. "One courtroom away can be totally different," said Robert Larin, a Bloomfield Hills defense attorney who has handled more than 5,000 cases across the state.

July 24, 2011 in Data on sentencing, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

"As Criminal Laws Proliferate, More Are Ensnared"

The title of this post is the headline of this new Wall Street Journal piece, which was run with this companion piece headlined "Many Failed Efforts to Count Nation's Federal Criminal Laws."   Both pieces are interesting reads, and here is the start of the main piece:

Eddie Leroy Anderson of Craigmont, Idaho, is a retired logger, a former science teacher and now a federal criminal thanks to his arrowhead-collecting hobby. In 2009, Mr. Anderson loaned his son some tools to dig for arrowheads near a favorite campground of theirs. Unfortunately, they were on federal land. Authorities "notified me to get a lawyer and a damn good one," Mr. Anderson recalls.

There is no evidence the Andersons intended to break the law, or even knew the law existed, according to court records and interviews. But the law, the Archaeological Resources Protection Act of 1979, doesn't require criminal intent and makes it a felony punishable by up to two years in prison to attempt to take artifacts off federal land without a permit.

Faced with that reality, the two men, who didn't find arrowheads that day, pleaded guilty to a misdemeanor and got a year's probation and a $1,500 penalty each. "We kind of wonder why it got took to the level that it did," says Mr. Anderson, 68 years old. Wendy Olson, the U.S. Attorney for Idaho, said the men were on an archeological site that was 13,000 years old. "Folks do need to pay attention to where they are," she said.

The Andersons are two of the hundreds of thousands of Americans to be charged and convicted in recent decades under federal criminal laws—as opposed to state or local laws—as the federal justice system has dramatically expanded its authority and reach.

As federal criminal statutes have ballooned, it has become increasingly easy for Americans to end up on the wrong side of the law. Many of the new federal laws also set a lower bar for conviction than in the past: Prosecutors don't necessarily need to show that the defendant had criminal intent.

These factors are contributing to some unusual applications of justice. Father-and-son arrowhead lovers can't argue they made an innocent mistake. A lobster importer is convicted in the U.S. for violating a Honduran law that the Honduran government disavowed. A Pennsylvanian who injured her husband's lover doesn't face state criminal charges—instead, she faces federal charges tied to an international arms-control treaty.

The U.S. Constitution mentions three federal crimes by citizens: treason, piracy and counterfeiting. By the turn of the 20th century, the number of criminal statutes numbered in the dozens. Today, there are an estimated 4,500 crimes in federal statutes, according to a 2008 study by retired Louisiana State University law professor John Baker.

There are also thousands of regulations that carry criminal penalties. Some laws are so complex, scholars debate whether they represent one offense, or scores of offenses. Counting them is impossible. The Justice Department spent two years trying in the 1980s, but produced only an estimate: 3,000 federal criminal offenses.

July 24, 2011 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack