August 6, 2011
"How Many Medical Marijuana Patients Are Fakers? Does It Matter?"
The questions in the title of this post come from the headline of this interesting new piece over at Reason.com posted by Jacob Sullum. Here are excerpts:
A recent survey of 1,746 patients at nine medical marijuana evaluation clinics in California indicates that "the patient population has evolved from mostly HIV/AIDS and cancer patients to a significantly more diverse array." University of California at Santa Cruz sociologist Craig Reinarman and his colleagues, who report their results in the Journal of Psychoactive Studies, say "this trend toward increasing therapeutic uses is bringing marijuana back to the position it held in the U.S. Pharmacopeia prior to its prohibition in 1937."
Reinarman et al. found that "relief of pain, spasms, headache, and anxiety, as well as to improve sleep and relaxation, were the most common reasons patients cited for using medical marijuana." The top three reasons physicians gave for recommending marijuana were "back/spine/neck pain" (31 percent), "sleep disorders" (16 percent), and "anxiety/depression" (13 percent). Although those may sound like easy-to-fake symptoms, four-fifths of the patients reported trying other, doctor-prescribed medications (most commonly opioids) before marijuana. They could have been malingering then too, of course, and it may be easier to get a recommendation for marijuana than it is to get a prescription for Vicodin or Valium. But on the whole, it does not look like allowing the medical use of marijuana has fundamentally changed the nature of the doctor-patient relationship. Doctors do, after all, commonly prescribe psychoactive pharmaceuticals to treat not only pain but also sleep disorders, anxiety, and depression — all with the government's blessing. If some people find that marijuana works better for these purposes, there is no rational reason to prevent them from using it....
The authors are keenly aware of the widepread impression that a large portion of California's medical marijuana patients are using phony or exaggerated ailments as an excuse to get high. They note that it is hard to measure the extent of such "diversion" and that the phenomenon is not limited to marijuana. More fundamentally, they suggest that the distinction between medical and nonmedical use of drugs is becoming increasingly difficult to draw....
If you believe the government has no business drawing or policing this line, it is hard to get worked up about people who fake their way to a medical marijuana recommendation. But as I argued back in 1993, reformers could pay a price if all the talk about relieving the suffering of cancer and AIDS patients is perceived as a cover for recreational use. Politicians in other states commonly cite the California example as a reason to block medical use or restrict it to a short list of conditions. Then again, the perception that California's current law encourages dishonesty (much as the medical and religious exceptions to alcohol prohibition did) may strengthen support for outright legalization, which last fall attracted support from 46 percent of California voters.
UPDATE: This new item from the paper Haaretz in Israel provides an interesting international perspective on these issues. The piece is headlined "Israeli government approves guidelines for medical marijuana," and here are the specifics:
The Israeli government approved on Sunday arrangements and supervision regarding the supply of cannabis for medical and research purposes. A statement from Prime Minister Benjamin Netanyahu's media adviser said "the Health Ministry will -- in coordination with the Israel Police and the Israel Anti-Drug Authority -- oversee the foregoing and will also be responsible for supplies from imports and local cultivation."
Of approximately 6,000 Israelis currently being treated with medical cannabis (aka medical marijuana), most suffer from chronic pain and terminal illnesses. The therapeutic potential of cannabis has been known for many years and is recognized by the Health Ministry.
But many patients -- such as sexual assault victims suffering from post-traumatic stress disorder (PTSD), who have been recommended psychiatric treatment with medical cannabis -- encounter bureaucratic obstacles.
California not yet on track to reduce prison population as much as court ordered
This front-page article in the San Francisco Chronicle, headlined "Report: Prison population reductions insufficient," indicates that California is not yet doing quite enough to reduce its prison population to the levels required by federal court orders. Here are the details:
Gov. Jerry Brown's plan to keep tens of thousands of low-level offenders in county jails instead of state prisons won't reduce the inmate population enough to fully comply with a federal court order, the nonpartisan Legislative Analyst's Office said Friday.
A report released by the analyst's office said the state will likely fall several thousand inmates short of the 34,000-man reduction ordered by the court. The report urges officials to ask a judge for more time, look at other ways to reduce crowding and consider sending more prisoners to private prisons in other states. "Asking for a court extension is probably the most important thing," said analyst Paul Golaszewski, the report's author.
A federal judge ruled five years ago that substandard health care in California prisons was leading to the deaths of about 50 inmates a year. A three-judge panel then appointed a health care receiver to oversee medical care and ordered the state to reduce its prison population.
The state appealed to the U.S. Supreme Court, which ruled in May that California must cut the number of prisoners from 143,500 to 110,000 by 2013. The state was given a series of benchmarks for that reduction, including an initial deadline of 10,500 fewer inmates by Dec. 27.... Prison officials recently acknowledged that they do not expect to reach that required reduction until Jan. 27. The analyst's report recommends that the state ask for more time....
State officials believe the plan to move more offenders to county jails, known as realignment, will reduce the state prison inmate population by nearly 40,000 within four years. The report outlines several other ways that state projections might not pan out. For example, district attorneys might seek more serious charges to keep some offenders out of county jails and in state prisons, the report says.
Still, realignment will "likely" shrink the state prison population by tens of thousands of inmates over the next two years and "will go a long way toward reducing overcrowding in the next several years," the report said.
August 5, 2011
Another special issue of Criminology & Public Policy examines mass incarceration
As noted in this prior post, the February 2011 issue of Criminology & Public Policy was devoted to the idea that society would be well served to reallocate resources from mass incarceration to targeted policing. Today I discovered that the August 2011 issue of Criminology & Public Policy explores various other aspects of the modern story of mass incarceration. Here is an excerpt from start from the editorial introduction to the issue authored by Marie Gottschalk:
The United States is the world’s warden, incarcerating a larger proportion of its people than any other country. Since the 1970s, the U.S. inmate population has increased by more than sixfold (Manza and Uggen, 2006: 95). A staggering 7 million people –- or approximately 1 in every 31 adults -— are either incarcerated, on parole or probation, or under some other form of state supervision today (Glaze, 2010; Pew Center on the States, 2009). These figures understate the enormous and disproportionate impact that this bold and unprecedented social experiment has had on certain groups in the United States. If current trends continue, one in three Black males and one in six Hispanic males born recently are expected to spend some time in prison during their lives (Bonczar, 2003).
Since the late 1990s, the phenomenon of mass incarceration has been a growing source of scholarly interest. Today the carceral state is a subject of rising public interest. In 2009, Wired magazine included emptying the country’s prisons on its “Smart List” of “12 Shocking Ideas that Could Change the World,” and Parade magazine featured Sen. Jim Webb’s (D-Va.) call to end mass incarceration on its front page (Webb, 2009).
Two related questions have long dominated discussions of mass incarceration: Why did the U.S. incarceration rate, which had been reasonably stable for much of the 20th century, shoot up in the 1970s and continue to climb for decades despite a fluctuating and then plummeting crime rate? And what precisely is the relationship between the incarceration rate and the crime rate? Today a scholarly consensus is congealing that the dramatic rise in the incarceration rate contributed to only a modest dent in the crime rate. Although identifying the causes of mass incarceration in the United States remains a central concern, the focus is shifting.
This special issue of Criminology & Public Policy showcases several emerging frontiers in research on mass incarceration that have enormous public policy implications: penal developments at the state and local levels; the collateral consequences of the carceral state, especially for already disadvantaged individuals, families, and communities; and the possibilities for trimming or dramatically reducing the incarcerated population and downsizing prisons.
"On the Chopping Block: State Prison Closings"
The title of this post is the title of this timely new little report from The Sentencing Project. The report spotlights that at least 13 states have closed or are considering closing correctional facilities this year, and includes a detailed chart on state prison closings. The report begins this way:
As a result of recent policy changes and pressures brought on by the fiscal crisis, state lawmakers are closing prisons after 40 years of record prison expansion. Declining prison populations in a number of states have resulted in excess prison capacity. During 2010, the Bureau of Justice Statistics reported the first decline in the overall state prison population since 1977 and found 24 states had reduced prison populations during 2009. In 2011 at least thirteen states have closed prison institutions or are contemplating doing so, potentially reducing prison capacity by over 13,900 beds. Since 2002, Michigan has led the nation in this regard. The state has closed 21 facilities, including prison camps, as a result of sentencing and parole reforms. Overall, the state has reduced capacity by over 12,000 beds for a total cost savings of $339 million.
Other states, including New Jersey and Kansas, have also closed prisons in recent years amid changes in sentencing policy and parole decision making that have resulted in a decline in state prison populations. Maryland also reduced prison capacity when it closed the Maryland House of Corrections in 2007 by transferring 850 prisoners to other prisons.
Is it public defenders or public prosecutors who are more overworked and underpaid?
The provocative question in the title of this post is prompted by this news report via the ABA Journal headlined "Assistant State’s Attorney Starting Pay May Jump from $40K to $53K in One Chicago Burb." Here are the details from this story (with commentary to follow):
Government entities are belt-tightening throughout the country, but there's good news for young lawyers in one suburban Chicago location. Saying that he's tired of seeing seasoned prosecutors move to other collar counties with higher pay and lower caseloads, the Kane County State's Attorney is proposing to raise starting salaries in his office, the Courier-News reports.
The proposed salary hike is significant — starting pay would leap from $40,000 to $53,000 under the plan announced today at a press conference by Kane County State’s Attorney Joe McMahon. He also wants to see upward adjustments for those with experience. McMahon says starting salaries for prosecutors in neighboring counties are: $54,100, DuPage; $53,700, Lake; $51,600, McHenry; and $51,600, Will.
Despite the downturn, "we have to be aware the failure to pay a competitive wage will lead to our talented and experienced assistant state’s attorneys going to other counties," he said. "I want the best and brightest to work here in Kane County. That has a direct impact on public safety.”
Though I do not know the cost-of-living realities around suburban Chicago, I do know that many law students leave law school with more than $50,00 dollars in debt. (This recent article suggests that the average debt for a law school graduate is now approaching $100,000.) This reality means that even a starting salary of more than $50K seems unlikely to be much more than a living wage for an ASA in Kane County, and it is especially hard to imagine many top-flight students (the "best and brightest") who have a chance of landing a six-figure private law job would readily be able (or eager) to afford to become a public prosecutor.
Of course, as the question in title of this post is meant to suggest, this problem is surely not unique to Kane County, nor to the offices of county prosecutors. Relatively speaking, most public-sector legal jobs pay much less than private-sectors alternatives, and this is probably especially true among the so-called best and brightest. But, because I share the view that the quality of lawyering in the criminal justice system has a "direct impact on public safety," this strikes me as a crime and punishment issue as much as it is a labor and employement issue. Do others agree?
"As Britain debates the death penalty again, studies from America confirm that it works"
The title of this post is the headline of this notable new commentary from across the pond authored by Tim Stanley, a research fellow in American History at Royal Holloway College. Here are some excerpts from a provocative (and somewhat one-sided) piece:
Britain is talking seriously about the death penalty for the first time in over a decade.... We can expect anti-death penalty campaigners to point to America as an example of why it should stay banned. The usual images will be invoked of pot-bellied, racist, white judges sentencing innocent saints to death by chainsaw in some Alabama charnel house. Accepting the many obvious injustices in the US legal system, there is an instinctive British snobbery towards Americans that renders any comparison between our two countries unflattering. Amnesty International, Liberty and the New Statesman will probably ask, “Why would we endorse a system of retribution practiced by those knuckle-dragging, Bible bashing, toothless crazies over in Texas?” Well, here’s one good reason: it works.
From 2001 to 2007, 12 academic studies were carried out in the US that examined the impact of the death penalty on local crime rates. They explored the hypothesis that as the potential cost of an action increases, so people are deterred from doing it. Nine out of twelve of the studies concluded that the death penalty saves lives. Some of their findings are stunning. Professors at Emory University determined that each execution deters an average of 18 murders. Another Emory study found that speeding up executions strengthens deterrence: for every 2.75 years cut from an inmate’s stay on death row, one murder would be prevented. Illinois has just voted to stop executions across the state. According to a University of Houston study, that could be a fatal mistake. It discovered that an earlier Illinois moratorium in 2000 encouraged 150 additional homicides in four years.
Opponents will point out that the death penalty is practiced in the states with the highest murder rates. This is true, but it doesn’t mean that executions don’t work -- it just means that they take place where they are needed most. The states without the death penalty historically have lower than average levels of crime. When the death penalty was suspended nationwide from 1968 to 1976, murder rates went through the roof -- except in those states. When the ban was lifted, the states that reintroduced the death penalty saw an astonishing 38 per cent fall in their murder rate over twenty years....
There are many failings in the US justice system; the use of the death penalty can be symptomatic of them, but it is not a cause. For example, it is incredibly costly to execute a criminal.... But the reason for the decades criminals spend waiting for their execution is simple: money-hungry lawyers and sympathetic liberals keep on appealing their sentences. Another complaint is that the death penalty is biased toward black defendants. Tragically, this is true: 42 per cent of death row inmates are black. However, this reflects appalling indices of poverty, social dysfunction and racism. It is not necessarily a comment upon the appropriateness of the sentence. Many states have taken the decision that, on balance, justice should not be suspended altogether just because it is applied unevenly. That’s tough and needs addressing, but law and order trumps abstract notions of equality in the minds of most voters.
But for anyone who wallows in the superiority of the UK justice system, with its human rights legislation and touchy-feely approach to child murderers, it is worth bearing in mind that our rate of violent crime is actually far higher than that of the United States. According to a 2009 study, there were 2,034 offences per 100,000 people that year in the UK, putting Britain at the top of the international league table. America recorded just 466. The US seems to be getting something right: executing cold-blooded killers might be part of it.
August 4, 2011
Texas state jury now in charge of sentencing after convicting Warren Jeffs of child rape
As detailed in this new AP report, this afternoon a "Texas jury convicted polygamist sect leader Warren Jeffs of child sexual assault Thursday in a case stemming from two young followers he took as brides in what his church calls 'spiritual marriages'." Here are more details:
The 55-year-old head of the Fundamentalist Church of Jesus Christ of Latter Day Saints stood stone-faced as the verdict was read. Jeffs, who acted as his own attorney, faces up to life in prison. The jury went immediately into sentencing proceedings. They had deliberated on a verdict for more than three hours.
Police had raided the group's remote West Texas ranch in April 2008, finding women dressed in frontier-style dresses and hairdos from the 19th century as well as seeing underage girls who were clearly pregnant. The call to an abuse hotline that spurred the raid turned out to be a hoax, and more than 400 children who had been placed in protective custody were eventually returned to their families.
But authorities brought charges against several men from the group, with Jeffs by far the highest-profile defendant. Prosecutors used DNA evidence to show Jeffs fathered a child with a 15-year-old girl and played an audio recording of what they said was him sexually assaulting a 12-year-old girl. They also played audio recordings in which Jeffs was heard instructing young women on how to please him sexually.
Jeffs has claimed he was the victim of religious persecution. The FLDS, which has at least 10,000 members nationwide, is a radical offshoot of mainstream Mormonism. The church believes polygamy brings exaltation in heaven and that Jeffs is God's spokesman on earth. Jeffs stood mute and expressionless, staring at the floor, for all but a few seconds of the half hour he was allotted for a closing argument on Thursday. At one point he mumbled, "I am peace," and said no more....
Jeffs represented himself after firing seven attorneys in the six months leading to the trial. He broke his courtroom silence with an objection marked by a nearly hourlong speech defending polygamy, and twice threatened the judge and the court with warnings of punishment from God....
The lone defence witness Jeffs called, church elder JD Roundy, spent about 10 minutes on the stand Thursday discussing FLDS history after 4 1/2 hours of testimony Wednesday evening....
Eleven other FLDS men were charged with crimes including sexual assault and bigamy. All seven of those who have been prosecuted were convicted, receiving prison sentences of between six and 75 years.
Any advice for, or predictions about, what the sentencing jury should or will do here?
"Strategic Segregation in the Modern Prison"
The title of this post is the title of this new paper by Professor Sharon Dolovich now available via SSRN. Here is the abstract:
For more than three decades, the L.A. County Jail has been systematically separating out the gay men and trans women who come through the Jail and housing them wholly apart from the general population. This is to protect them from sexual victimization, to which they are especially vulnerable. This article draws on original research to provide an in-depth account of this segregation unit, which is known as K6G. The aim is both descriptive and evaluative -- to describe the mechanics of the program and its implications for residents, and to assess a variety of objections to it.
As the article shows, L.A. County has managed to create a surprisingly safe space for the high-risk populations K6G serves. That it has done so in a carceral system that is severely overcrowded and notoriously volatile makes the success of the program even more remarkable. There is, however, no getting around it: with K6G, L.A. County is engaged in a process of state-sponsored, identity-based segregation. Equally troubling, K6G is woefully underinclusive, leaving unprotected many vulnerable people who are neither gay nor trans. This article carefully considers and responds to these objections. It also addresses a third, constitutional objection: that, even should prison administrators in L.A. County or elsewhere wish to follow a K6G model, they would be precluded from doing so on Equal Protection grounds. Two appendices accompany the article: a detailed description of the research methodology and a reproduction of the 176-question instrument used to structure the 32 formal interviews conducted with K6G residents.
New Amnesty International paper urges all US officials to seek to abolish or block executions
Via this entry by the Death Penalty Information Center, I see that Amnesty International has a new report discussing recent lethal injection controversies in addition to reflecting on the modern US death penalty era. This new AI report, entitled "An Embarrassment of Hitches: Reflections on the Death Penalty, 35 Years After Gregg v. Georgia, As States Scramble for Lethal Injection Drugs," covers lots of ground, and I found especially notable this introductory direct pitch to all US officials to seek to bring an end to executions:
Amnesty International urges officials in the USA –- at local, state and federal level -– to work for abolition. Pending abolition, they should make every effort to bring about an immediate moratorium on executions.
The federal government has a leadership role to play in this. It should acknowledge that although international human rights law recognizes the existence of the death penalty in some countries, international standards are abolitionist in outlook and therefore place an expectation on governments that they will work towards abolition. The federal government should lead by example, with a view to ending the USA’s increasing isolation on this fundamental human rights issue.
The US Attorney General should stop authorizing federal prosecutors to seek death sentences. The Justice Department should no longer intervene in favour of state-level executioners in litigation in federal court. The US Department of Commerce and other federal agencies should oppose any trading in drugs for use in lethal injection executions. The Convening Authority for military commissions should not forward any charges as capital in prosecutions at the US Naval Base in Guantánamo Bay in Cuba. Military prosecutors should cease any pursuit of death sentences. Congress and the administration should work to withdraw all reservations and understandings filed by the USA upon ratification of treaties impacting on the death penalty.
New Heritage Foundation paper urges all states to adopt federal SORNA rules
A notable new paper concerning the federal efforts to have national sex offender notification rules and regulations appears here via The Heritage Foundation. The paper is authored by Charles Stimson and Maya Noronha, and is titled "Get SMART: Complying with Federal Sex Offender Registration Standards." Here is the abstact:
Just before Christmas 2009, 11-year-old Sarah Haley Foxwell was brutally raped and murdered by a convicted high-risk sex offender, Thomas J. Leggs. Although Leggs was classified as a high-risk offender in Delaware, because of inconsistencies in sex offender classification between states, Maryland identified Leggs as “compliant.” Congress passed the Sex Offender Registration and Notification Act (SORNA) in 2006 to provide minimum registration and notification standards for all jurisdictions. Yet, for several years, jurisdictions have made flimsy excuses — often the product of misinformation — for not implementing SORNA. The time for excuses is past. Not only are the reasons for delaying implementation of SORNA invalid, but the dangers of allowing this nation’s sex offender laws to remain so inconsistent are extraordinary.
Some recent related posts:
- Years later, Adam Walsh Act not a real fix for sex offender registries
- States persist in resistance to Adam Walsh Act sex offender rules five years latter
- Ohio Supreme Court finds new Ohio SORNA-compliant sex offender requirements punitive
- "Sex Offender Registration and Notification Laws at Home and Abroad: Is an International Megan’s Law Good Policy?"
- Noting state resistance to federal law on sex offender registries
"Adversarial Inquisitions: Rethinking the Search for the Truth"
The title of this post is the title of this interesting-looking new piece by Professor Keith Findley, which is now available via SSRN. Here is the abstract:
The growing number of exonerations of wrongly convicted individuals has fostered new interest in alternative mechanisms for factfinding in criminal cases, including some recent suggestions for special "innocence procedures." Such procedures would be optional, and available only in cases in which the defendant claims factual innocence. Discussion about alternative methods of investigating and adjudicating facts in criminal cases inevitably renews longstanding debates about the relative merits of inquisitorial versus adversarial system.
This article analyzes and critiques some of the recent suggestions for "innocence procedures," concluding that most do both too much and too little to enhance adjudicative reliability. The article then draws on the strengths of both the adversary and inquisitorial systems to propose an alternative model that might promise enhanced reliability, and thus both better justice and public safety.
En banc Ninth Circuit to consider reasonableness of millennium bomber sentence
As detailed in this Seattle Times piece, headlined "Court to reconsider Ahmed Ressam's sentence in millennium plot," the federal sentencing debate over a terrorist is going en banc in the Ninth Circuit. Here are the details:
The 9th U.S. Circuit Court of Appeals will once again consider whether the 22-year prison sentence imposed on would-be millennium bomber Ahmed Ressam by a federal judge in Seattle was adequate.
Last year, a divided three-judge panel of the court voted to reject the sentence imposed — for the second time — by U.S. District Judge John Coughenour, questioning his impartiality and saying that the sentence failed to protect the public from the al-Qaida-trained terrorist.
An order by Circuit Chief Judge Alex Kozinski, issued late Tuesday vacated that ruling and sent the case to be reheard by a larger panel of judges.
Ressam was arrested in Port Angeles by the U.S. Border Patrol on Dec. 14, 1999, in a rental car loaded with bomb-making materials. Coughenour presided over Ressam's trial in the spring of 2001. Ressam later credited the fairness of the proceedings when he decided to cooperate with federal authorities after he was convicted of attempting to plant a powerful suitcase bomb at the Los Angeles International Airport in 1999.
Ressam became a crucial source of information about al-Qaida in the months after the Sept. 11 attacks, and as a result federal prosecutors initially suggested a sentence of around 35 years for crimes that could have resulted in life in prison, including a count of conspiracy to commit an act of international terrorism. Sentencing guidelines suggested a 65-year sentence.
Prosecutors appealed when Coughenour first imposed the 22-year sentence in 2005.
Ressam has been held in solitary confinement and over years of repeated questioning had soured on his cooperation. When the case was sent back to Coughenour for a procedural error in 2008, prosecutors urged the judge to impose the life sentence, saying Ressam had reneged on his deal. Ressam, in the meantime, fired his lawyers and recanted everything he had ever said....
Even so, Coughenour imposed the same sentence, saying that the information Ressam provided when he was cooperating almost certainly stopped other attacks and saved lives. The government appealed that sentence, which resulted in Tuesday's order.
Last year's 72-page ruling said Coughenour's decision failed to protect the public. Ressam, an Algerian who trained with al-Qaida in Afghanistan, already has completed nearly half of his sentence and will be 53 years old when he is released.... Federal public defender Thomas Hillier, who has represented or advised Ressam since his first court appearance in 1999, applauded the court for granting his request to reconsider the earlier decision, which not only exposed Ressam to many more years in prison but also stripped Coughenour, the trial judge, of the case. "We were concerned about its impact on the evolution of federal sentencing, as well as how it might impact Ahmed," he said. "We're grateful for another shot at it."
August 3, 2011
Split Eighth Circuit affirms big sentence increase for girlfriend whose drugs led to boyfriend's OD death
An sad set of facts resulting in an interesting debate in US v. Nossan, No. 10-2502 (8th Cir. Aug. 3, 2011) (available here), about a large federal sentencing increase for a woman who mailed drugs to her boyfriend (at his request). The big debate arises in Nossan because, though the advisory Guidelines range for the defendant's offense of conviction was 10-16 months, the district judge imposed a 60-month sentence because the boyfriend died of a drug overdose using the drugs she had sent him.
The panel majority finds the 5-year sentence reasonable, while Judge Bye in dissent concludes that "while [the boyfriend's] death due to his use of narcotics is surely tragic, [he does] not believe the 44-month upward departure imposed by the district court is reasonable in light of the stark contrast between our relevant case law and Nossan’s limited involvement in this case." (Beyond the specifics of the substantive issue, I also find Nossan interesting because the Sixth Amendment concerns that prompted the Blakely and Booker constitutional rulings do not even garner a mention despite that all sorts of judicial fact-finding was central to the district court's decision to enhance the defendant's sentence here.)
Laboratory of the states, particularly in Florida, running notable experiment with private prisons
The notable new entry at Stateline.org, which is headlined "Public, private prisons to go 'head to head' in Florida," spotlights an emerging prison experiment in the laboratory of on of the states. Here are the interesting details:
Are private prisons more efficient and better at reducing crime than their public counterparts? The new secretary of the nation’s third-largest correctional system believes that a major prison outsourcing in his state could help answer that long-debated question.
Ed Buss, who took over Florida’s corrections department this year, is overseeing one of the biggest — and fastest — prison privatization efforts in history. By the end of this year, 30 state prisons, road camps and work release centers in an 18-county region of south Florida will be turned over to a single private operator.
According to The Miami Herald, the initiative has set up a “high-stakes competitive battle” between the nation’s two largest private prison operators, Corrections Corporation of America and the GEO Group, both of which are already active in Florida and are now competing to win the huge new contract.
In the meantime, Buss, a well-known corrections administrator who previously was in charge of Indiana’s prison system, tells the News Service of Florida that the privatization of so many facilities will help provide crucial information in the back-and-forth over whether private prisons are more cost-effective — and result in better outcomes for inmates — than their public counterparts. “This will provide some competition so that the public and private sector can go head-to-head,” Buss says.
Under the legislation calling for Florida’s prison privatization, the winning contractor must ensure savings of at least 7 percent beyond what the state currently pays to run its facilities. But the legislation also calls on the contractor to keep recidivism down by relying on research-guided practices to keep inmates from returning to prison. Buss says he will be watching the private facilities closely to see whether they are effective for inmates as well as for taxpayers.
“It takes three to five years to get any meaningful data on recidivism,” Buss says. “I wouldn’t recommend any future private prisons until we get the data and we see if it does actually work.”
Split Sixth Circuit reverses federal death sentence on interesting grounds
A long and quite interesting Sixth Circuit opinion handed down today in US v. Gabrion, No. 02-1386 (6th Cir. Aug. 3, 2011) (available here), covers a lot of issues relating to the federal death penalty in the course of affirming a conviction and revering the death sentence. This start to the partial dissent by Chief Judge Batchelder provides an effective summary of the majority ruling and the enduring points of disagreement within the panel:
I would affirm the district court in its entirety — both conviction and sentence. Therefore, I concur generally in the portions of the majority’s decision that affirm the judgment of the district court without necessarily joining the majority’s reasoning or discussion. I agree that we need not reach the issue contained in Section XIV but I do not join in the associated dicta. I respectfully dissent from those portions of the majority’s decision that reverse the district court, specifically Sections II and III.
In Section II, the majority conducts a de novoreview of Gabrion’s claim that the district court misinterpreted or misapplied certain provisions of the Federal Death Penalty Act of 1994 (FDPA), 18 U.S.C. §§ 3591—3598. By reading the word “any” in § 3592(a) (“any mitigating factor”) and § 3593(c) (“any information relevant to a mitigating factor”) as unqualified and unlimited, the majority holds that these provisions mandate that a capital defendant may offer to the jury any “mitigating” evidence or argument, i.e., any evidence or argument that could conceivably make a juror question the appropriateness of the death penalty. Reading “any” as unlimited necessarily requires the inclusion within these two provisions of Michigan’s policy against the death penalty. The majority therefore concludes that the district court erred by excluding reference to Michigan law.
In Section III, the majority considers Gabrion’s claim that the district court violated his constitutional right to due process by misinstructing the jury on the burden of proof in the weighing of aggravating and mitigating factors, and again conducts a de novo review. The district court instructed the jury that it need only find that the aggravating factors “sufficiently outweigh” the mitigating factors, which is language quoted directly from the statute. See § 3593(e). The majority finds the statutory language unacceptably vague, and therefore constitutionally infirm, and holds that a sentencing court must instruct the penalty-phase jury that it may impose the death penalty only if it finds beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors.
I must respectfully disagree with both of these holdings. I would hold that a reasonable reading of §§ 3592(a) and 3593(c) allows a sentencing court to impose some limits on the evidence or argument the defendant may offer in mitigation, and that the district court properly did so in this case. Similarly, I would hold that the Constitution does not dictate the manner in which death-penalty aggravating and mitigating factors are to be weighed, and therefore the district court could not and did not violate the Constitution in the way it instructed the jury. I would affirm the district court.
"U.S. says online child pornography network dismantled"
The title of this post is the headline of this Reuters piece. Here are the basics:
U.S. authorities said on Wednesday they have dismantled an online bulletin board allegedly used by 600 people in the United States and abroad to trade graphic images and videos of child sex abuse.
They said more than 70 people have been charged in the United States with taking part in the alleged child pornography network dubbed "Dreamboard," a private, members-only online bulletin board....
U.S. officials called it the largest prosecution of individuals who participated in an online child exploitation enterprise operated for the purpose of promoting child sexual abuse, disseminating child pornography and evading law enforcement.
Of those charged in the United States, 43 have been arrested in this country and nine foreign nationals have been arrested overseas, including accused bulletin board administrators located in Canada and in France, they said.
The board's administrators required prospective members to upload child pornography when applying for membership. They also used encryption and aliases rather than their real names in an effort to avoid detection, the officials said.
The bulletin board, created in 2008, folded in the spring of this year when members became aware of the U.S. government's investigation, Justice Department officials said. The 600 members offered to trade images and videos of infants and children 12 and younger, contained in some 27,000 posts, the authorities said. The criminal charges carry sentences ranging from 20 years to life in prison.
I am always pleased to see these kinds of reports indicating that the federal good guys have captured a whole bunch of baddies. But I fear that, given the depressingly large number of individuals involved in child pornography offenses, this may amount to just a few more buckets of smut being bailed from this revolting ocean.
"Rod Blagojevich may get off easy while others rot in prison"
The title of this post is the headline of this provocative new commentary from the Washington Times. Here are excerpts:
Former Illinois governor and convicted felon Rod Blagojevich will have his sentencing hearing on Oct. 6. He faces up to 300 years in prison on various corruption charges. He will probably receive between 6-1/2 and 15 years. Raping, pillaging, and plundering the public trust is not treated the same as other heinous crimes.
The hirsute governor’s attorney claims Blagojevich will testify at his sentencing hearing. What is he going to say? He worked hard for the people of Illinois? He was the people’s governor? We’ve heard all that before.
There are indications that people will testify on his behalf. Who? There are no Friends of Blagojevich. Where were these people when he needed to pay his legal bills? The U.S. Government, us, the people, the tax payers, had to pay for his attorneys.
For some reason politicians do not have to sell their homes, other real estate, or empty their bank accounts and retirement funds to pay their legal bills. Unlike the rest of us, politicians don’t have to be bankrupted when accused of federal crimes. They are a protected class....
This slubberdegullion, and all political scoundrels, rapscallions, and scalawags, should get the maximum sentence for any crime they commit. They should be held to the highest standards of conduct and the highest levels of justice. If Blagojevich is facing 300 hundred years then 300 hundred years he should get. There should be no mitigating circcumstances for political corruption.
Bernie Madoff is in prison until the day he dies, and probably beyond, for violating the trust of people who should have known better. Bernie Madoff was held to a higher standard than pedophiles and serial killers. But, he did not violate the public trust. If Madoff could be sentenced to eternal life in prison why can’t politicians?
Why should they get a break? Why should there be mitigating circumstances? Who cares how many people he allegedly helped? Who cares if he loved his parents, is a good husband and father, helps elderly people cross the street, and goes to church on Sunday? Who cares about his record of achievements as an elected official? He was convicted of corruption. He should go down hard.
Rod Blagojevich, and any elected official, should get the maximum sentence if they are convicted of corruption. A violation of the public trust is a heinous crime. They should get these draconian sentences to set an an example for others. Others who may, just may, think twice before sticking our their grubby hands for the kachingos. There should be no pity, no mercy, and no humanity.
In addition to welcoming comments about what others hoep or believe Blago should get at his federal sentencing on October 6, I would love to hear what readers think about the basic proposition set forth in this commentary that every elected official "should get the maximum sentence if they are convicted of corruption."
Shouldn't we be surprised Baze settled so little about lethal injection protocols?
The question in the title of this post is prompted by some new headlines and stories out of Florida and Tennessee reports on-going lethal injection litigation: from Florida here we have "Judge hearing challenge to Fla. execution drug"; from Tennessee here we have "Tennessee Executions on Hold." Moreover, as regular readers know, both the federal government and Ohio are in the midst of a de facto execution moratoria as they seek to shore up their lethal injection protocol and practices (background here and here). And California, the state with the largest death row, seems no closer to resuming executions today than it did five years ago.
I am not at all surprised that attorneys for murderers on death row continue to press vigorously any and all plausible constitutional challenges to lethal injection protocols a full three years after the Supreme Court seemingly important Baze ruling which approved Kentucky's execution protocol. But I am quite surprised that these constitutional challenges continue to be having so much traction in lower courts and continue to hinder the ability of so many states to resume executions.
In short, though I knew the Baze ruling wouldn't resolve or shut down most lethal injection litigation, I expected that this litigation would be a much smaller part of the national death penalty story over time. And yet, the opposite almost seems to be the case (though this may be more a product of recent practical challenges in getting key lethal injection drugs rather than litigation realities).
Do readers share my surprise on this front? Was I just wrong to suspect the 2008 Supreme Court ruling in Baze could and would be a significant turning point in this uniquely modern death penalty story? Are there some important broader lessons — concerning the administration of the death penalty in the United States or concerning the limits of SCOTUS jurisprudence — to be drawn from these realities?
August 2, 2011
"Graham on the Ground"
The title of this post is the headline of this interesting new piece by Professor Cara Drinan discussing various aspects of the legal aftermath in the wake of the Supreme Court's landmark Eighth Amendment ruling in Graham v. Florida. Here is the abstract:
In Graham v. Florida, the Supreme Court held that it is unconstitutional to sentence a non-homicide juvenile offender to life in prison without parole. While states need not guarantee release to these juvenile offenders, they cannot foreclose such an outcome at the sentencing phase. Scholars have identified several long-term ramifications of Graham, including its likely influence on juvenile sentencing practices and on retributive justice theory. What has yet to be examined are the thorny legal issues raised by Graham that judges and lawmakers need to address in the very short term. To whom does the Graham decision apply? What is the appropriate remedy for those inmates? What affirmative obligations does the Graham decision impose upon the states? These and other pressing questions are before judges and legislators today, and in this Article I endeavor to answer them.
In Part I, I briefly describe the Graham opinion and survey what scholars to date have identified as salient aspects of the decision. In Part II, I seek to provide a blueprint for lower courts and legislatures implementing the Graham decision. Specifically, I argue that: 1) Graham is retroactively applicable to all inmates who received a life-without-parole sentence for a non-homicide juvenile crime; 2) those inmates entitled to relief under Graham require effective representation at their resentencing hearings; 3) judges presiding over resentencing hearings should err in favor of rehabilitation over retribution to comport with the spirit of Graham; and 4) long-term legislative and executive action are necessary in order to make the promise of Graham a reality. Finally, in Part III, I situate Graham in the context of our nation’s ongoing criminal justice failings. While the sentence challenged in Graham ought to be viewed as a symptom of such failings, the Graham decision may offer a window of hope for reform on that same front.
Lots of diverse crime and punishment news at The Crime Report
I have often mentioned that one of my daily web-stops for criminal justice news and commentary is The Crime Report, and this fascinating and diverse set of recent entries under its Crime and Justice News banner helps highlight why:
- Second-Strike Penalties Account for 32,000 California Prison Inmates
- Utah Sees Gains in Stubborn Problem of Prisoner Recidivism
- Next Legal Gun Fight May Be the Right to Bear Arms in Public
- 'Social Impact Bonds' Touted for Criminal Justice Investments
- HuffPost: More College Students Paying Bills Through Prostitution
California enacts new legislation preventing convictions based solely on jailhouse informants
I am pleased to see, as reported in this local article headlined "Law requires corroboration of cellmate's testimony," that California has now finally enacted a prohibition on convictions based solely "on the uncorroborated testimony of an in-custody informant." Here are the basics, along with a bit of the legislative history:
Testimony by jailhouse informants will no longer be enough to convict criminal defendants in California under hotly contested legislation signed today by Gov. Jerry Brown.
SB687 by Sen. Mark Leno, D-San Francisco, applies to cases in which an inmate, often in exchange for leniency, testifies that a cellmate confessed to a crime. The bill, effective next year, will require prosecutors to corroborate that testimony.
Similar laws are in effect in 17 other states. But Gov. Arnold Schwarzenegger vetoed the same proposal twice at the urging of the California District Attorneys Association, which also opposed Leno's bill.
The prosecutors' group argued that there was no need for such a law, since judges already tell juries to consider an informant's testimony with caution. The association also said a ban on uncorroborated informant testimony would make jailhouse crimes harder to prosecute.
But Leno said informant testimony is often self-serving and unreliable and can lead to convictions of the innocent. Defense lawyers and civil-liberties advocates who supported SB687 were joined by the district attorneys of San Francisco and Los Angeles, who say a requirement of corroboration, already in effect in their offices, actually leads to stronger prosecutions....
The informant measure was one of several proposed by a statewide commission, headed by former Attorney General John Van de Kamp, that the state Senate established in 2004 to look into the causes of wrongful convictions.
Other measures backed by the commission would have required police to tape-record interrogations of violent felony suspects, set guidelines for police lineups and made it easier for wrongfully convicted prisoners to get compensation from the state. Schwarzenegger vetoed those as well.
Tenth Circuit rejects defendant complaint about not being allowed to present evidence he killed someone
The Tenth Circuit handed down today a notable little through-the-looking-glass opinion in US v. Fraser, No. 10-8049 (10th Cir. Aug. 1, 2011) (available here). This first paragraph explains the crazy reality that is this case and is the basis for the title of this post.
James Fraser shot and killed Milton Brown. That much is not disputed. What is disputed is whether the district court should have allowed Mr. Fraser to present evidence of the homicide as part of his defense against a federal weapons charge. How could evidence that he killed a man have helped Mr. Fraser? Mr. Fraser says that the facts and circumstances surrounding the shooting would have demonstrated how and why he needed to possess a gun — even if it meant breaking federal law to do so. But whether or not a necessity defense can be raised to a federal gun charge — a premise subject to several and significant questions — Mr. Fraser can’t establish that defense on its own terms as a matter of law. Accordingly, the district court’s decision to exclude evidence of Mr. Brown’s killing was no abuse of discretion and we affirm.
"The Eleventh Circuit's Selective Assault on Sentencing Discretion"
The title of this post is the title of this notable new article focused in large part on the Eleventh Circuit's notable reasonableness decision in the controversial Irey case (basics here and here). Here is the abstract:
Ever since the Supreme Court declared that the sentences which district courts impose on criminal defendants are to be reviewed on appeal for “unreasonableness,” the standard’s contours have remained elusive and mired in controversy, despite the Court’s repeated attempts at elucidation. In few instances is this confounding state of affairs more apparent and acute than in the Eleventh Circuit’s recent lengthy and factious en banc decision in United States v. Irey.
This article explores Irey’s merits, mistakes, and lessons, trying to locate each within the broader context of the Eleventh Circuit’s sentencing jurisprudence. In doing so, the article advances three principal arguments. First, Irey represents a serious and unlawful encroachment on district courts’ sentencing discretion, one based in part on misguided notions of culpability, mental illness, deterrence, the severity of supervised release, and obeisance to the Sentencing Guidelines. Second, Irey’s lasting impact is likely an increased yet largely unjustified pressure on district courts to sentence defendants more harshly, particularly for sexual offenses. Third, Irey and its predecessors demonstrate that in reviewing for unreasonableness, the Eleventh Circuit unnecessarily and unfairly wields a single-edged sword, capable of striking what is perceived as an unduly lenient sentence yet impotent against an unduly harsh one. Recognizing the pretextual nature of much sentencing discourse — in which stakeholders inconsistently advance varyingly deferential degrees of appellate review suspiciously consonant with the practical sentencing outcomes they desire — the article concludes with a call for appellate judges to transcend such partisanship and exercise dispassionate, reasoned, and balanced (i.e., double-edged) sentencing review.
Maine symposium on the law of post-conviction review
Upon request, it is my pleasure to post this announcement concerning an interesting upcoming legal symposium:
The Maine Law Review, in consultation with the Maine Supreme Judicial Court, is pleased to announce plans for a spring 2012 live symposium on the law of post-conviction review, and an invitation for article proposals to be considered for publication in the spring edition of the Law Review.
The symposium will offer both national and Maine specific perspectives on post-conviction review issues, and will feature a nationally prominent keynote speaker along with other distinguished presenters. Each speaker will submit an article to be published in the spring issue. While the live symposium will feature three or four primary speakers due to time constraints, the book will contain additional articles.
We seek submissions on a broad range of topics relating to post-conviction review, including its appropriate goals and the efficacy of current state and federal procedures in accomplishing those goals. Moreover, convictions carry a myriad of significant consequences of conviction such as deportation and deprivation of public assistance benefits. We seek articles that assess whether and how these consequences should inform the optimum scope of post-conviction review, and how they affect the process by which guilty pleas are presented in courts.
The deadline for submissions is September 15, 2011. Submitted abstracts should be no longer than three (3) pages, double-spaced, with standard margins and font size. For additional information, please contact Emma Bond at emma.bond at maine.edu, or by phone at (207) 619-3662.
Significant Tenth Circuit ruling on meaning and application of "intended loss"
The Tenth Circuit yesterday released a thoughtful new decision about the application of the important federal sentencing guidelines concept of "intended loss" in US v. Manatau, No. 10-4101 (10th Cir. Aug. 1, 2011) (available here). Though the stakes in the Manatau case itself are small, I suspect a lot of white-collar defense practitioners will find the ruling significant. Here is the start of the opinion and a few key excerpts (with emphasis in the original):
When calculating an advisory guidelines sentence for an economic crime a district court naturally must take account of the losses the defendant caused others. But the guidelines instruct that, when fashioning a sentence, a court should also account for the losses the defendant “intended” but was unable to realize. The question we face in this case is what counts as an “intended” loss? Unsurprisingly, we hold that the term means exactly what it says: to be included in an advisory guidelines calculation the intended loss must have been an object of the defendant’s purpose....
We hold that “intended loss” means a loss the defendant purposely sought to inflict. “Intended loss” does not mean a loss that the defendant merely knew would result from his scheme or a loss he might have possibly and potentially contemplated....
[T]he district court should examine what losses Mr. Manatau intended. Of course, in answering this question the court is free, as we have explained, to make reasonable inferences about the defendant’s mental state from the available facts. In the sentencing context, too, the government need only prove Mr. Manatau’s intent by a preponderance of the evidence, and the court need only make a “reasonable estimate” of the intended loss.... The available credit limits on the convenience checks in question and the defendant’s knowledge (or lack of knowledge) of them may well be relevant evidence bearing on what loss a defendant did (or didn’t) intend. But a court cannot simply calculate “intended loss” by toting up credit limits without any finding that the defendant intended to inflict a loss reasonably approaching those limits.
August 1, 2011
"A Rational Post-Booker Proposal for Reform of Federal Sentencing Enhancements for Prior Convictions"
The title of this post is the title of this new piece available via SSRN from Caleb Mason and Scott Lesowitz. Here is the abstract:
In this article we propose a solution to one of the more vexing problems in current federal sentencing jurisprudence: applying the sentencing enhancements for one of the most commonly-prosecuted federal crimes – re-entry after deportation, in violation of 8 U.S.C. Section 1326. We argue that the current categorical approach to classifying crimes for purposes of applying the enhancements is unnecessary, creates absurd results, and contravenes the Sentencing Commission’s mandate to promulgate empirically-grounded real-offense guidelines. We urge a systematic classification of state crimes based on empirical surveys of state caselaw and charging practices, and a revised enhancement guideline that recognizes differences in relative severity. We give examples of the kind of surveys that would be required, and set out proposed guidelines revisions.
Venezuela's notable response to prison overcrowding and violence
This new article from the Christian Science Monitor provides a notable international perspective on prison overcrowding problems and how they can be addressed. The piece is headlined "Venezuela promises to release thousands of prisoners: The new prisons minister, appointed in the wake of a deadly riot at El Rodeo prison outside Caracas, says that she will let 20,000 nonviolent criminals go." Here are excerpts:
Just a month after a deadly prison siege in El Rodeo prison outside Caracas, Venezuela in which some 30 people died, Venezuelan authorities have announced plans to release 40 percent of the country's prison population. Varela said that the release of some 20,000 prisoners would ease overcrowding, a major issue in jails across Venezuela and the entire region.
“Of the country's 50,000 prisoners, 20,000 should be out of jail," Ms. Varela told a local newspaper. The country's 30 prisons are designed to hold around 12,500 inmates. "In prison there are people that do not pose a danger to society, such as shoplifters who have no history of violence. They can be handled outside prison," she said.
But the new minister is likely to face criticism, even as overcrowding in jails is one of the issues for which Venezuelan President Hugo Chavez constantly gets panned. Venezuela is considered one of the region's most dangerous countries, with the murder rate in Caracas comparable to that of warzones such as Baghdad. While many prisoners may have gone into jail for minor crimes such as shoplifting, they will no doubt have been hardened by the “Dante-esque" conditions inside, according to Humberto Prado, who helps run the Venezuelan Prison Observatory.
Varela sought to dispel concerns of mass chaos. "I want to promise the Venezuelan people that we won't let the wolves loose," added Varela who was appointed by President Chavez last week....
Riots at El Rodeo jail, in Guatire just east of Caracas, left around 30 dead in a siege that lasted for 27 days. Thousands of troops attempted to regain control against inmates armed with AK47s, machine guns, and hand grenades. Family members waited outside a kilometer-wide perimeter for news of their loved ones, as shooting was heard from the complex.
"Woman who sprayed breast milk at deputies sentenced"
The title of this post is the headline of this afternoon story from the Columbus Dispatch. Here are the details:
After generating a flurry of media attention and being fired from her teaching job, the woman who drunkenly sprayed her breast milk at deputy sheriffs will spend two years on probation after pleading guilty to two misdemeanors.
Stephanie Robinette, 30, appeared in Delaware Municipal Court this morning and was sentenced by Judge David Gormley for the misdemeanors, assault and obstruction of official business. She will also have to pay $200 in fines and serve 40 hours of community service. She pleaded guilty last month. Three other misdemeanor charges were dismissed.
The incident began with a domestic dispute between Robinette and her husband on June 25 at the Bridgewater Banquet and Conference Center on Sawmill Parkway in Delaware County.
That night, after fighting with her husband, Robinette locked herself in the car. When deputies arrived, she began yelling profanities and refused to get out. She then told them she is a breastfeeding mother, removed her right breast from her dress and began spraying deputies and the car with her breast milk.
Robinette was fired from her teaching job at Summit Academy on Columbus’ East Side less than a week later. In the report sent to state officials for review of her license, school officials cited the media attention and included reports published online from as far away as India and Canada.
“If there is a form of punishment associated with public shaming, I think Stephanie’s case would qualify,” said her attorney, Brad Koffel. Koffel added that Robinette has been sober — also part of her probation — and that she and her husband have filed for divorce. The Robinettes have a 9-month-old child....
In addition to the probation, community service and fines, Gormley ordered Robinette to attend anger management classes and abstain from alcohol. “I feel teachers are in a position of public trust and I really think you seriously violated that public trust in the way you behaved on June 25,” Gormley told Robinette. “Foul language, and obviously, the behavior that has become so infamous. Shameful.”
Just and effective punishment, dear readers? Does and should the fact that the defendant was publically shamed and lost her teaching job factor into the formal sentencing judgment here? Should the judge here have ordered the defendant to stop breast-feeding in order to reduce the risk of imprisonment? (I am just kidding with this last question.)
August 1, 2011 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (7) | TrackBack
Continued controversy over defendant gettting jailhouse access to kiddie porn he created
Regular readers may recall this post last month discussing an interesting local criminal procedure story out of Washington, headlined "Accused sex offender allowed to watch child porn in jail." The story has developed further and has now hit the New York Times via this piece headlined "Furor Over Giving Rape Suspect Explicit Tapes." Here are excerpts:
[Weldon Marc] Gilbert created more than 100 videos of the boys, sometimes turning the camera on himself. In 2009, he pled guilty in federal court to 31 counts of producing child pornography involving 17 victims and was sentenced to 25 years in prison.
While Mr. Gilbert sits in jail here, he is preparing for another trial next month, this time on state charges of rape and molestation. In this case, he is acting as his own lawyer. And as such, he is allowed to review the evidence against him — including the pornographic videos — and watch them as often as he likes. Restricting his access could result in a mistrial.
Local law enforcement officials are furious, but there is not much they can do about it. “It’s absurd and maddening,” said Mark Lindquist, the prosecutor for Pierce County, which includes Tacoma, where the state trial is to begin Sept. 19. While defendants normally can view evidence against them, Mr. Lindquist said, they are not usually allowed to possess it, particularly when it is contraband like pornography.
“Defense attorneys typically ask to see some portion of the pornography that will be used as evidence, review a nominal amount of it and leave,” Mr. Lindquist said. “I have never had a case where a defense attorney wanted to possess the pornography. We don’t turn cocaine over to defendants for them to personally check out.”
After a local television station, KOMO, reported the situation last month, there was a public protest at the jail here where Mr. Gilbert is being held. Many state legislators have vowed to change the law but they cannot do so in time to affect Mr. Gilbert’s case. Mr. Lindquist said his office would draft language that would “pass constitutional muster,” though he expects challenges from defense lawyers concerned about the rights of defendants.
Unlike most inmates, who follow their lawyers’ advice not to discuss their cases with the news media, Mr. Gilbert, 50, who flew for U.P.S., is speaking out from behind bars. He sent a four-page handwritten letter to Mr. Lindquist early last month, denouncing him and others for stirring up the outcry against him. He blamed officials for giving the public the impression that he was reviewing the tapes for his own prurient interests and noted that this was “ludicrous” since he had to look at them in a separate room monitored by corrections officers and with his private investigator present.
He told Mr. Lindquist to drop the charges because he was not guilty. He also suggested that Mr. Lindquist was pursuing the case for his own political advantage. “Who, beside yourself, benefits from the second round of prosecution?” Mr. Gilbert asked. In response, Mr. Lindquist said he did not give “a free pass” to criminals just because they were already serving time....
Federal prosecutors have described Mr. Gilbert, who lived in an expensive house in Lake Tapps, just east of Tacoma, as a “master manipulator” who would groom his victims to gain their trust before abusing them. “Gilbert saw each of the dozens of boys that he sexually abused as sex objects he could obtain by giving them things,” federal prosecutors wrote a few years ago. He gave them money, cellphones, flying lessons, trips overseas, strippers and alcohol, they said — even help with their homework. “His sexual sadism and his fascination with boys was the center of his life,” they wrote.
John Henry Browne, a lawyer from Seattle who represented Mr. Gilbert on the federal charges and helped arrange the deal under which Mr. Gilbert pleaded guilty, is acting as standby counsel in the state case. He said in an interview that Mr. Gilbert was exercising his constitutional rights and that they should be protected.
Mr. Browne also said that he — and Mr. Gilbert — had watched the videos a few years ago in preparing for the federal case. He said 90 percent of them were “silly” and described them as “birthday spankings.” The remaining 10 percent, he said, were “problematic.”
Recent related post:
Two notable white-collar rulings from the Second Circuit
The Second Circuit gets August off to a note start with two big (and important?) opinions in white-collar cases. Here are the basics, with the summaries taken the the start of each opinion:
US v. Ferguson, No. 08-6211 (2d Cir. Aug 1, 2011) (available here): "The defendants, four executives of General Reinsurance Corporation (“Gen Re”) and one of American International Group, Inc. (“AIG”), appeal from judgments of the United States District Court for the District of Connecticut (Droney, J.), convicting them of conspiracy, mail fraud, securities fraud, and making false statements to the Securities and Exchange Commission. The charges arose from an allegedly fraudulent reinsurance transaction between AIG and Gen Re that was intended to cure AIG’s ailing stock price. We vacate the defendants’ convictions and remand for a new trial."
US v. Feldman, No. 10-2275 (2d Cir. Aug 1, 2011) (available here): "Appeal from a judgment of the United States District Court for the Northern District of New York, David N. Hurd, Judge, convicting Jerome H. Feldman of one count of health care fraud, see 18 U.S.C. § 1347; five counts of wire fraud, see 18 U.S.C. § 1343; and sentencing Feldman to 188 months in prison and three years of supervised release. Affirmed."
As the first sentence of this post hints, I cannot tell from a quick read whether either of these opinions are especially jurisprudentially important. But anytime the Second Circuit reverses a significant white-collar conviction (as in Ferguson) or affirms significant white-collar sentence (as in Feldman), the feds and/or the NY defense bar usually find ways to make the ruling consequential.
Seeking reviews for apps/programs that help calculate federal guideline ranges
This new Forbes blog entry, headlined "How Much Prison Time? -- There’s an App For That," has me wondering about whether federal practitioners use and benefit from any programs that help guestimate guideline sentencing ranges. Here is a snippet from the Forbes posting on this topic:
The federal U.S. Federal Sentencing Guidelines calculator was developed by an innovative lawyer who was looking to develop a tool to help lawyers do the calculation for their clients. The calculator covers crimes ranging from Alien Smuggling to Wire Fraud. I told the developer, who wished to not be named here, that he needed to add “Securities Fraud”, which was missing from the menu, to the selection of crimes as it has become more popular. He told me that a good substitute for Securities Fraud was to use Wire Fraud in the calculation….good to know. Besides being available on line, there is a mobile version of the prison calculator that is easier to see on your smart phone, www.sentencing.us/m. I am sure this version could be helpful in case you’re on the run and need to find out what enhancement (more months in prison) there might be for being a fugitive.
The developer cautions that this is a professional tool, though it is available to anyone. It is meant to be used by lawyers or professionals as an estimating tool. Again, it is only a guide. After all, the judge can sentence someone outside the guidelines.
Once on the site and you determine that you might be looking at some serious time, there is a link to connect you with a lawyer. You just click on a state and get information that can put you in touch with a defense counsel. No running around and going through the embarrassment of asking people, “I have a friend who needs a lawyer, you know one?” You can do all this in the privacy of your home. Technology is a wonderful thing.
I agree, of course, that technology is a wonderful thing, but I have not tried this particular guideline calculator nor tried to do guideline math with the help of a computer program. But I suspect others have, and I would be grateful to get some recommendations or reviews in the comments.
July 31, 2011
Years later, Adam Walsh Act not a real fix for sex offender registries
As effectively reported in this lengthy CNN piece, headlined "5 years later, states struggle to comply with federal sex offender law," an attempt by Congress to bring national order to sex offender registries has not been a complete success. Here are highlights from a must-read for anyone follwing these issues:
Five years ago this week, President George W. Bush signed the Adam Walsh Child Protection and Safety Act with the intention of making it the law of the land for keeping tabs on sex offenders.
Named for the 6-year-old whose slaying by a stranger galvanized child safety reforms and turned his father, John Walsh, into one of the nation's most recognizable victims' advocates, the law set forth the most comprehensive national standards to date for monitoring sex offenders in America's communities.
This week also marks a key deadline for states, tribes and U.S. territories to meet the act's requirements or face a 10% cut in federal justice assistance funding, not exactly small change in tight economic times.
As of Wednesday, the 30th anniversary of Adam Walsh's disappearance from a Florida department store, 14 states, nine tribes and the territory of Guam had "substantially implemented" what's known as the Sex Offender Registration and Notification Act, or SORNA, provisions of the Adam Walsh Act. On the eve of the July 27 deadline, last-minute submissions were pouring into the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking, known as the SMART office.
The law expanded the categories of crimes eligible for registration and increased the period and frequency of registration for certain adults and juveniles, effectively growing registries by as much 500% in some states. It called for jurisdictions to retroactively register some adult offenders who'd already done their time on the registry. It also called for registration of certain juveniles who'd been shielded from the registry in the past, based on the notion that confidentiality offers them a greater likelihood of rehabilitation.
The goal was to corral the information into a national public registry and FBI database. But the act is still very much a work in progress.... Many states don't want to change their laws; others believe the legislation's cost outweighs its predicted benefits, she said. Texas has put the estimated federal funding cuts at $1.4 million, compared to a cost of $38.7 million....
Controversial legal issues like retroactive registration -- requiring an offender who was sentenced before the legislation to follow the new rules -- and juvenile registration get the most notice. For most states, however, the biggest hurdles are implementing technology and adjusting statutes, said Linda Baldwin, director of the SMART office....
The effectiveness of registries -- for sex crimes and other offenses -- has long been a topic of debate. Supporters ... tout their public safety benefits, while critics say they can have the unintended consequence of destabilizing sex offenders....
Some states have attempted to evaluate the benefits of SORNA. In Texas, home to more than 60,000 registered sex offenders, a 2010 report from the Senate Criminal Justice Committee concluded, "It is clear registries do not provide the public safety," noting the issue contained "gray areas." The California Sex Offender Management Board also recommended against implementing the provisions of the Adam Walsh Act, stating, "California state law and practice related to offender risk assessment, juvenile registration and sex offender monitoring is more consistent with evidence-based practice that can demonstrate real public safety outcomes."
People on both sides of the debate agree that truly dangerous sexual predators, such as pedophiles and rapists, need to be monitored closely if they're going to be released into communities....
Laws vary from state to state, but examples of offenses under SORNA that could land someone on the registry range from sexual contact with a minor or rape of an adult, non-parental kidnapping or false imprisonment to possession or distribution of child pornography. The so-called "Romeo and Juliet" cases, or consensual sex involving at least one person under 18, do not require registration if neither person is more than four years older than the other, but discretion lies with law enforcement and prosecutors.
Each offense is tied to a specific tier that designates whether an offender registers for 15 years (Tier I), 25 years (Tier II) or for life (Tier III). Critics say that using offense-based registration instead of an approach based on risk-assessment -- favored by states like Texas and California -- pulls too many offenders onto the registry and overburdens law enforcement, preventing police from keeping a close eye on the worst of the worst....
Besides Ohio, states that have adopted SORNA are Alabama, Delaware, Florida, Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nevada, South Carolina, South Dakota, and Wyoming. The number of offenders on Wyoming's registry increased from 125 to 1,450 after the state moved from risk-based assessment to a tier system for registration, said Kevin R. Smith, deputy director of the state's Criminal Justice Information Services.
This front-page article in today's Columbus Dispatch, headlined "Ohio sex offender registry a mess; Supreme Court has twice ruled it unconstitutional," details many of the challenges Ohio has faced upon being the first state to adopt the registries rules of the Adam Walsh Act.
"Executions Should Be Televised"
The title of this post is the headline of this op-ed piece in today's New York Times by Zackary Shemtob and David Lat. Here are excerpts:
Earlier this month, Georgia conducted its third execution this year. This would have passed relatively unnoticed if not for a controversy surrounding its videotaping. Lawyers for the condemned inmate, Andrew Grant DeYoung, had persuaded a judge to allow the recording of his last moments as part of an effort to obtain evidence on whether lethal injection caused unnecessary suffering.
Though he argued for videotaping, one of Mr. DeYoung’s defense lawyers, Brian Kammer, spoke out against releasing the footage to the public. “It’s a horrible thing that Andrew DeYoung had to go through,” Mr. Kammer said, “and it’s not for the public to see that.”
We respectfully disagree. Executions in the United States ought to be made public.
Right now, executions are generally open only to the press and a few select witnesses. For the rest of us, the vague contours are provided in the morning paper. Yet a functioning democracy demands maximum accountability and transparency. As long as executions remain behind closed doors, those are impossible. The people should have the right to see what is being done in their name and with their tax dollars.
This is particularly relevant given the current debate on whether specific methods of lethal injection constitute cruel and unusual punishment and therefore violate the Constitution. There is a dramatic difference between reading or hearing of such an event and observing it through image and sound. (This is obvious to those who saw the footage of Saddam Hussein’s hanging in 2006 or the death of Neda Agha-Soltan during the protests in Iran in 2009.) We are not calling for opening executions completely to the public — conducting them before a live crowd — but rather for broadcasting them live or recording them for future release, on the Web or TV....
Cameras record legislative sessions and presidential debates, and courtrooms are allowing greater television access. When he was an Illinois state senator, President Obama successfully pressed for the videotaping of homicide interrogations and confessions. The most serious penalty of all surely demands equal if not greater scrutiny....
Ultimately the main opposition to our idea seems to flow from an unthinking disgust — a sense that public executions are archaic, noxious, even barbarous. Albert Camus related in his essay “Reflections on the Guillotine” that viewing executions turned him against capital punishment. The legal scholar John D. Bessler suggests that public executions might have the same effect on the public today; Sister Helen Prejean, the death penalty abolitionist, has urged just such a strategy.
That is not our view. We leave open the possibility that making executions public could strengthen support for them; undecided viewers might find them less disturbing than anticipated.... A democracy demands a citizenry as informed as possible about the costs and benefits of society’s ultimate punishment.
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
- "Video of a Lethal Injection Reopens Questions on the Privacy of Executions"
- Are there any compelling arguments against now recording all executions?