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August 2, 2011

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.

Fittingly, Alexandra Natapoff at her Snithcing Blog has more about this development in this new post.

August 2, 2011 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

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.

August 2, 2011 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

"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.

August 2, 2011 in Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

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.

August 2, 2011 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

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 2, 2011 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0) | TrackBack

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.

August 1, 2011 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

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.

August 1, 2011 in Prisons and prisoners, Sentencing around the world | Permalink | Comments (1) | TrackBack

"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:

August 1, 2011 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

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.

August 1, 2011 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (5) | TrackBack

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.

August 1, 2011 in Federal Sentencing Guidelines, Technocorrections, Who Sentences? | Permalink | Comments (7) | TrackBack

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.

July 31, 2011 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

"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:  

July 31, 2011 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (9) | TrackBack