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August 16, 2011

Documenting the high costs of pursuing the ultimate punishment in Washington state

This recent article from the Seattle Times, which is headlined "King County's death-penalty dilemma: Soaring cost worth it?," provides a local perspective on this economics of the modern death penalty in one region.  Here are excerpts:

The cost of prosecuting two men and a woman accused of two of the most heinous crimes in King County in recent years is $656,564 and counting. The cost of defending them is even higher: $4.3 million, and also climbing.

Like other counties in the state, King County is struggling with the rising cost of criminal justice, which has forced Prosecutor Dan Satterberg to eliminate the jobs of 36 prosecutors since 2008.  But while budget constraints have forced some counties to all but abandon death-penalty cases, King County currently has two active capital cases.  A third, last year's prosecution of Conner Schierman for killing a Kirkland family of four in 2006, has thus far cost the county $2.4 million.

The county's current death-penalty cases include the prosecution of Christopher Monfort, who is accused of ambushing two Seattle police officers, killing one, on Halloween night 2009.  Two other defendants, Michele Anderson and Joseph McEnroe, could also face execution if convicted of the slayings of six members of Anderson's family on Christmas Eve 2007.

While trials for the three defendants are months off, defense lawyers are racking up costs for expert witnesses, investigators, forensic analysis and other elements crucial for death-penalty trials.  In the meantime, prosecutors, police officers and crime-lab analysts are also tallying up costs while prepping for the trials.

Portland-based defense attorney Jeff Ellis, who handles death-penalty cases across the country, said the high costs of prosecuting death-penalty cases — which can also include years of appeals — has resulted in a drop in death-penalty cases.  King County, with two cases, is an anomaly, he said. "There is a downturn in the number of death-penalty sentences being sought and imposed because of the costs associated with them," Ellis said. "What's happening now [in King County] is a reverse of what's happening nationwide."....

Satterberg defends the county's filing of death-penalty cases despite the high cost.  He blames much of the increased costs on what he calls an "industry" that has been created by death-penalty attorneys.  "It is the law of our state and a punishment we reserve for the worst of the worst offenders," he said of the death penalty. "If people want to change the policy they should do so through their elected representatives.  It shouldn't be done by defense attorneys running up the bill."

The most recent study of state death-penalty costs indicated that a death-penalty case generates roughly $470,000 more in costs at the trial level than a murder case in which the death penalty is not sought — plus an additional $70,000 or so in court costs, a figure that includes courtroom personnel.  The same study, released by the Washington State Bar Association in 2006, found that more than $200,000 on average is spent on appeal costs.

August 16, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

"Trend to Lighten Harsh Sentences Catches On in Conservative States"

The title of this post is the headline of this New York Times piece from last week covering a story that should be already well known to long-time readers of this blog.  Here is how the piece begins:

Fanned by the financial crisis, a wave of sentencing and parole reforms is gaining force as it sweeps across the United States, reversing a trend of “tough on crime” policies that lasted for decades and drove the nation’s incarceration rate to the highest — and most costly — level in the developed world.

While liberals have long complained that harsh mandatory minimum sentences for nonviolent offenses like drug possession are unjust, the push to overhaul penal policies has been increasingly embraced by elected officials in some of the most conservative states in the country.  And for a different reason: to save money.

Some early results have been dramatic. In 2007, Texas was facing a projected shortfall of about 17,000 inmate beds by 2012.  But instead of building and operating new prison space, the State Legislature decided to steer nonviolent offenders into drug treatment and to expand re-entry programs designed to help recently released inmates avoid returning to custody.

August 16, 2011 in Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

August 15, 2011

When and how will (or should) SCOTUS next address Second Amendment rights?

The question in the title of this post is prompted by this new article from today's Washington Post, which is headlined "Cases lining up to ask Supreme Court to clarify Second Amendment rights." Here is how the piece starts:

A funny thing has happened in the three years since gun-rights activists won their biggest victory at the Supreme Court.  They’ve been on a losing streak in the lower courts.

The activists found the holy grail in 2008 when the Supreme Court’s 5 to 4 decision in District of Columbia v. Heller said the Second Amendment guaranteed an individual right to own a firearm unconnected to military service.  The court followed it up with McDonald v. Chicago two years later, holding that the amendment applies not just to gun control laws passed by Congress but to local and state laws as well.

The decisions were seen as a green light to challenge gun restrictions across the country, and the lawsuits have come raining down — more than two a week, according to the anti-gun Brady Center to Prevent Gun Violence.  But it is the Brady Center that is crowing about the results.

“Three years and more than 400 legal challenges later, courts — so far — have held that the Supreme Court’s ruling in Heller was narrow and limited, and that the Second Amendment does not interfere with the people’s right to enact legislation protecting families and communities from gun violence,” the center said in a report optimistically titled “Hollow Victory?”

Even those challenging gun restrictions acknowledge that the courts have been unwilling to expand upon the basic right that most people agree Heller bestowed: the ability to keep a handgun in one’s home for self-defense purposes.

The subsequent rulings “clearly highlight the struggles lower courts are having after receiving the Supreme Court’s guidance in Heller and McDonald,” said Antigone Peyton, an Alexandria lawyer.  “They’re afraid to be out front on the law.” As Maryland’s highest court, the Court of Appeals, put it: “If the Supreme Court . . .meant its holding to extend beyond home possession, it will need to say so more plainly.”

August 15, 2011 in Second Amendment issues, Who Sentences? | Permalink | Comments (13) | TrackBack

Attica, Attica, Attica ... law conference four decades after the infamous prison riot

Attica As detailed in this official press release, next month brings a notable law conference titled "40 Years After the Attica Uprising: Looking Back, Moving Forward," which is being sponsored by the University at Buffalo Law School and its Baldy Center for Law and Social Policy. Here is more about the upcoming event:

Forty years ago, the deadliest prisoner rebellion in U.S. history occurred.  Next month, a major conference will bring together prisoner advocates, legislators, policymakers, corrections professionals, activists and people who were on the front lines of the conflict, on both sides....

The two-day event marks the anniversary of the uprising at Attica State Prison, about 40 miles east of Buffalo, that brought the world's attention to long-festering problems in the U.S. prison system. The Attica Uprising began on Sept. 9, 1971, and ended four days later when then-Gov. Nelson Rockefeller ordered state troopers to storm and retake the prison from the inmates who had taken control.  Twenty-nine prisoners and 11 security and civilian staff died.

To open the conference, the documentary "Ghosts of Attica" will be shown at the Burchfield Penny Art Center (Buffalo State College) on Sunday, Sept. 11.  Over the next two days, Sept. 12-13, conference events will be held on UB's North and South campuses and at a downtown Buffalo church.  The schedule of events is posted on the conference website.

"It's about healing, in part," says UB Law Professor Teresa A. Miller, conference organizer. "This is the last decade in which these people are going to be able to sit down together and reflect upon Attica's turbulent past.  This conference is unique in that it creates a dialog between stakeholders with diverse ideological perspectives on the Attica Uprising.  For the Buffalo community, this is one of the last opportunities to hear firsthand from people who were there."

In addition to looking back at the uprising, the conference will feature several influential policymakers, including New York State Assemblyman Jeffrion Aubrey, chair of the Committee on Corrections and a vocal advocate for prison reform.  Miller says it comes at a time when the corrections industry, an entrenched part of the state's and the nation's economy, is undergoing reconsideration.

August 15, 2011 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

"Taking Plea Bargaining Seriously: Reforming Pre-Sentence Reports after Padilla v. Kentucky"

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

This essay proposes two reforms to the pre-sentence report (PSR) in light of increasing recognition that plea bargaining, not trial, is the major decision point in criminal prosecutions.

PSRs are important to plea bargaining and sentencing because they contain the critical information that will be used in imposing a sentence.  The sentence will sometimes be mandated by the criminal record and other information in the PSR; for example, a record may mean that there is a mandatory minumum sentence, or that probation is unavailable. In most other cases, the sentence will be highly influenced by the contents of the PSR. Given the importance of the PSR, in a rationally designed system, the PSR would be available before critical decisions about the case are made.  Yet, under current practice, the PSR is generally not prepared or available until after entry of a guilty plea.  This means that all parties are pleading in the dark –- they can be surprised by a mandatory or presumptive sentence based on ignorance or misunderstanding of the defendant's criminal record or other important, pre-existing facts.  While deferring preparation of the PSR until after disposition might have made sense in an era when many cases went to trial, it is unacceptable when virtually all cases are pleaded.  Accordingly, PSRs should be prepared in advance of pleas, so that all parties can make a deal knowing the facts that reveal what the bargain actually means.

This essay also suggests that, in accordance with existing law, PSRs should identify collateral consequences and other legal restrictions which are not nominally part of the criminal sentence, in order to provide a guide for a defendant's conduct (18 U.S.C. 3563(d)), and to establish the defendant's post-release financial condition for purposes of calculating restitution and fines. (Fed. R. Crim. P. 32(D)(2)(A)(ii).).

August 15, 2011 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (19) | TrackBack

The persistent challenges of sentencing reform efforts on display in Arkansas

This interesting local article from Arkansas, which is headlined "New sentencing law already being questioned; hearing set," spotlights that opponents of legislative sentencing reform rarely go away after enactment and will sometimes clamor for reform of reforms even before the ink is dry.  Here is hw the piece starts:

Less than a month old, state prison reforms intended to ease overcrowding and slow the rise of prison costs are already being criticized as overly burdensome and, in come cases, too lenient.   A legislative hearing is scheduled for Sept. 23 to field concerns.  The most vocal critics are lawmakers who opposed legislation during this year’s regular session that became Act 570 of 2011.

“We knew all along that change scares people,” said Matt DeCample, spokesman for Gov. Mike Beebe, who pushed the new guidelines.  “I doubt that they’re going to get much useful information, but we’re not going to resist anyone’s efforts to meet and talk about things.”

Critics complain some of new guidelines pose potential hardships for county sheriffs while others, including reducing the penalty for possession of less than a half-ounce of marijuana from a felony to a misdemeanor, are just not right.  “I continue to believe that this is not the best route for us to take to reduce our prison costs,” said Rep. Nate Bell, R-Mena.  He and Rep. David Sanders, R-Little Rock, asked for a hearing next month before the Legislative Joint Performance Review Committee.

Bell said it’s not too soon to start asking questions about the law, which took affect July 27.   “It is too early to assess the affects of the law, obviously, but I believe that the folks that are directly impacted with having to implement it … ought to have their voices heard at this point,” he said.

Supporters of Act 570 say they welcome the opportunity to meet discuss the new law, but they questioned the timing.  Sen. Jim Luker, D-Wynne, who sponsored the bill, said he hopes Bell and Sanders don’t revisit arguments against the law they raised during the session.  “I could see this as being a positive if they want to know where we are,” Luker said.  “Now if they’re coming at us from a totally negative point of view, if they are rejecting something before it’s even had the opportunity to be implemented, I think that’s rather short-sighted.”

The sentencing reforms were enacted in response to a 2010 study by the Pew Center’s Public Safety Performance project, which found that the state’s prison population has doubled in the past 20 years to more than 16,000 and that housing ever more inmates could cost the state $1.1 billion over the next decade.  The reforms and new guidelines could save the state about $875 million over the next decade, the Pew study said.

Act 570 provides for lesser sentences for some nonviolent offenders and mostly drug-related crimes.  The law also makes some nonviolent offenders eligible for parole earlier, with electronic monitoring as a condition of early release in some cases.

August 15, 2011 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

August 14, 2011

Might GOP start debating Texas crime and punishment with Rick Perry in the 2012 race?

Regular readers know that I always find fascinating when national political discussions and debate turn to issues of crime and punishment.   And, because the record of Texas on such issues is so dynamic, I am both hopeful and intrigued that the addition of Texas Gov Rick Perry to the GOP nomination race might bring these issues into focus as Election 2012 takes shape.

I suspect most readers know that Texas has a remarkable modern history with the death penalty, and Gov Perry holds the notable record of having signed more death warrants presided over more executions than any other Governor in the US in at least the last 50 years.  Less well known, but no less notable, is Texas's record on non-capital sentencing: the state has pioneered smart on crime reforms, reduced incarceration levels, eliminated juveniles LWOP for murder and reduced crime all the while.

Whether and how the media and Perry's adversaries discuss these matter will be quite interesting to watch in the months ahead.

August 14, 2011 in Elections and sentencing issues in political debates | Permalink | Comments (15) | TrackBack

"Should severe childhood abuse spare a murderer the death penalty?"

The question title of this post is the headline of this lengthy article discussing an upcoming scheduled execution.  Here is an excerpt:

It took jurors less than two hours to convict Jackson and sentence him to die twice over: For murder while committing robbery, and murder while committing rape. Jackson, now 31, is scheduled for execution Thursday night.

His team of attorneys scrambled to convince Gov. Bob McDonnell to commute his sentence to life in prison without parole. In a statement Friday, the governor refused, having found "no compelling reason to set aside the sentence." They're also appealing to the U.S. Supreme Court.

They argue that Jackson's original attorneys failed to paint their own grim picture for jurors -- a picture of a childhood saturated with abuse so sadistic and pervasive that, they say, it likely would have moved at least one juror to vote for life in prison. In Virginia, one reluctant juror is all it takes to avoid the death penalty.

In an unusual move, a federal judge ruled in 2010 that Jackson's first attorneys should have put his brother and sister on the stand to provide vivid, firsthand testimony that might have led the jury to spare him. She ordered a new sentencing hearing. "The picture painted of Jackson by his own counsel," U.S. District Judge Leonie Brinkema wrote, "all but invited a death verdict."

Her ruling was reversed in April by the U.S. Fourth Circuit Court of Appeals, setting the stage for the execution. The Fourth Circuit upheld a Virginia Supreme Court ruling that said the siblings' testimony would be merely "cumulative" to other trial testimony, and that the law doesn't impose a "constitutional requirement that counsel uncover every scrap of evidence that could conceivably help their client."

August 14, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack