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August 27, 2011

"Perry delivers on Texas death penalty"

The title of this post is the headline of this provocative commentary by Debra Saunders appearing in the San Francisco Chronicle. Here is how it starts and ends:

As Texas governor, GOP presidential hopeful Rick Perry has presided over 234 executions. It's a record number, which, the Washington Post reported last week, bestows on Perry "a law-and-order credential that none of his competitors can match -- even if they wanted to."

Watch how pundits will try to turn that statistic into a political negative -- and paint Perry as the governor with blood on his spurs -- even though American voters overwhelmingly support the death penalty....

I think the death penalty could be a much bigger problem for President Obama as he seeks re-election. Obama says that he supports the death penalty, but his administration opposed Texas' scheduled execution of Humberto Leal -- who was convicted in the 1994 rape-murder of a 16-year-old -- because Leal, a Mexican citizen raised in San Antonio, had not been advised that he was entitled to consult with the Mexican Consulate.  Perry would not oblige, and Leal was executed.

Also, under the Obama administration this year, the Drug Enforcement Administration seized the lethal-injection drug sodium thiopental from Georgia, Kentucky and Tennessee on the grounds that the Food and Drug Administration has not approved drugs intended to execute convicted killers.

Yes, folks, those are your tax dollars at work in the Obama administration - funding federal law enforcement raids designed to undermine state laws.  It doesn't matter that the U.S. Supreme Court upheld lethal injection by a 7-2 margin in a 2008 ruling.  If there is one way Democrats know how to use the federal government successfully, it is to sabotage state laws they don't like.

Some recent related posts: 

August 27, 2011 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (14) | TrackBack

Should guidelines actually call for a sentence increase if a defendant apologizes?

The provocative question in the title of this post is prompted by this provicative new paper available via SSRN by Professor Murat Mungan.  The paper is titled "Don't Say You're Sorry Unless You Mean it," and here is the abstract:

Remorse and apologies by offenders have not been rigorously analyzed in the law and economics literature.  This is perhaps because apologies are regarded as 'cheap talk' and are deemed to be non-informative of an individual's conscious state.  In this paper, I develop a formal framework in which one can analyze remorse and apologies.

I argue that legal procedures can be designed to price apologies, such that only truly remorseful individuals apologize. Hence, apologies would not be mere 'cheap talk' and could send correct signals regarding an offender's true conscious state, making them credible.  This will lead victims, upon receiving apologies, to forgive offenders more frequently.  Moreover, pricing apologies does not negatively impact the possibility of achieving optimal deterrence.  An (arguably negative) effect of pricing apologies is its elimination of insincere apologies.  If it is assumed that apologies, even if insincere, carry rehabilitative and/or palliative benefits, than the optimality of pricing apologies depends on a trade-off between achieving credibility and increasing such rehabilitative and palliative benefits.

August 27, 2011 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (6) | TrackBack

Barry Bonds convictions upheld by district judge... next stop sentencing(?)

As detailed in this Bloomberg piece, headlined "Bonds’s Obstruction Conviction in Steroids Probe Upheld by Federal Judge," late yesterday "U.S. District Judge Susan Illston in San Francisco [denied Barry Bonds'] request for an acquittal and refus[ed] to grant a new trial." Here is more:

Illston rejected Bonds’s argument that there was no crime in his 146-word answer to a grand jury about whether his trainer Greg Anderson ever gave him anything that required an injection with a syringe. His attorney, Dennis Riordan, said at an Aug. 25 hearing before Illston that the former San Francisco Giants outfielder took about 75 seconds to respond to prosecutors’ direct question and eventually answered “no.”

“Defendant repeatedly provided nonresponsive answers to questions about whether Anderson had ever provided him with injectables, resulting in the prosecuting attorneys asking clarifying question after clarifying question, and even once resulting in one prosecutor interrupting another who was about to move on to a new topic in order to clarify defendant’s mixed responses,” Illston wrote in her ruling. “An evasive answer about an issue material to the grand jury is not necessarily rendered immaterial by the later provision of a direct answer, even if that direct answer is true.”

Bonds, 47, was convicted in April by a federal jury in San Francisco of obstructing a U.S. probe of steroid use by professional athletes. Jurors were unable to agree on whether Bonds lied when he told a grand jury in 2003 that he didn’t knowingly take steroids, didn’t take human growth hormone and didn’t receive injections by Anderson. A mistrial was declared on those counts.

The full 20-page ruling denying the motions for acquittal and a new trial in US v. Bonds is available at this link.  And, as the title of this post hints, I am not sure if this ruling means that sentencing is now to be the next stage of the long-running Bonds legal saga.

Related 2011 Bonds posts:

August 27, 2011 in Celebrity sentencings | Permalink | Comments (4) | TrackBack

August 26, 2011

"Sushi and whisky: hard time in Russia's VIP prisons"

The title of this post is the headline of this report from The Independent newpaper, which gets started this way:

For most people, spending years in a Russian prison camp would be a living nightmare. But one ex-prisoner has described how it can be a time of whisky, sushi and relative freedom -- if you have enough money.

Andrei, a former assistant to a Russian member of parliament who was sentenced to nine years in jail in 2006 for embezzlement, says that from day one of his time in the camps, money was the only language.  In an interview with Russian newspaper Moskovsky Komsomolets, the former prisoner explains in detail how he paid his way through his years in jail, where he says that anything can be bought for the right price.

"We had whatever we wanted. I even ate sushi every day," he told the paper, to which he showed photographs that backed up his claims.  "We had a great table laid on for us in the camp -- sushi, champagne, whisky."

His allegations come just a month after photos were published of prisoners partying in a prison just outside Moscow.  The photos showed inmates dressed up in togas, sitting down to a lavish meal and having McDonald's delivered to their cell.  The governor of the prison was sacked after the photos appeared on the internet.  Both incidents show how corruption, endemic in Russia, has also engrained itself in the Russian prison system.

August 26, 2011 in Prisons and prisoners, Sentencing around the world | Permalink | Comments (1) | TrackBack

"Minority Practice, Majority’s Burden: The Death Penalty Today"

The title of this post is the title of this lengthy new article by Professor James Liebman and Peter Clarke, which is now available via SSRN and is forthcoming in the Ohio State Journal of Criminal Law. Here is the abstract:

Although supported in principle by two-thirds of the public and even more of the States, capital punishment in the United States is a minority practice when the actual death-sentencing practices of the nation’s 3000-plus counties and their populations are considered.  This feature of American capital punishment has been present for decades, has become more pronounced recently, and is especially clear when death sentences, which are merely infrequent, are distinguished from executions, which are exceedingly rare.

The first question this Article asks is what forces account for the death-proneness of a minority of American communities?  The answer to that question -- that a combination of parochialism and libertarianism characterizes the communities most disposed to impose death sentences -- helps to answer the next question addressed here: Why so few death sentences end in executions?  It turns out that the imposition of death sentences, particularly for felony murder (a proxy for the out-of-the-blue stranger killings that generate the greatest fear among parochial communities), provides parochial and libertarian communities with a quick and cheap alternative to effective law enforcement. And that alternative is largely realized whether or not death sentences are ultimately carried out.  This explanation sheds light on two other criminal law conundrums -- the survival of the most idiosyncratic manifestation of the felony murder doctrine (which mysteriously transmogrifies involuntary manslaughter into capitally aggravated murder) and the failure of the death penalty to have a demonstrable deterrent effect (which is not surprising if the death penalty operates as a weak substitute for, rather than a powerful addition to, otherwise effective law enforcement strategies).  The explanation also reveals a number of costs the capitally prone minority imposes on the majority of citizens and locales that can do without the death penalty, including more crime, a cumbersome process for reviewing systematically flawed death sentences whose execution is of less interest to the death sentences’ originators than their imposition, and a heightened risk --to the judicial system as well as individual defendants -- of miscarriages of justice.

These explanations, in turn, beg the most important and difficult question considered here.  Why do the majority of communities and citizens who can live without the death penalty tolerate a minority practice with serious costs that the majority mainly bears? With a bow towards Douglas Hay’s famous explanation for the survival over many decades of eighteenth century England’s no less universally vilified death-sentencing system --which likewise condemned many but executed few -- we offer some reasons for the minority’s success in wagging the majority.  In response to recent evidence of a (thus far largely counterproductive) majority backlash, we conclude by offering some suggestions about how the majority might require the minority of death-prone communities to bear more of the costs of their death-proneness without increasing the risk of miscarriage of justice.

August 26, 2011 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (6) | TrackBack

Feds seeking (within-guideline) sentence of 70-80 months for high-profile insider trader

As detailed in this Bloomberg piece, "Craig Drimal, the former Galleon Group LLC trader who pleaded guilty to insider-trading charges, should get a prison term of 70 to 80 months, which is within federal sentencing guidelines, the U.S. said in a court filing."  Here is more about this high-profile white-collar case, which is scheduled for sentencing next week:

Drimal, 55, pleaded guilty in April in federal court in New York charges of conspiracy and securities fraud. Drimal admitted that he and others at Galleon traded on inside information obtained from lawyers working on transactions involving 3Com Corp. and Axcan Pharma Inc. in 2007.  Drimal said the information was obtained from Arthur Cutillo and Brien Santarlas, lawyers at Boston-based Ropes & Gray LLP.

Drimal has suggested that the court impose community service or home confinement in lieu of a “substantial” prison term, prosecutors said.  The request should be denied in order to send a “strong message of deterrence to others in the hedge fund community” and because the “nature and extent of his criminal conduct doesn’t warrant community service,” prosecutors said.

“Drimal has no excuse for his illegal conduct,” prosecutors said in the sentencing memo, which was filed yesterday.  “He grew up in a stable, loving family with no financial difficulties.  He is a college graduate.  He has a loving and supportive family.  He fully understood that insider trading was illegal and yet repeatedly disregarded the law to make a lot of money.”...

Drimal’s attorney, Jane Anne Murray, said she filed a memorandum last week asking the judge impose a sentence below the federal guidelines. “We’re not surprised by their position; it’s been consistent,” Murray said in a phone interview.  “We disagree with the government on a number of issues including the applicable guidelines.  And we’re seeking a sentence that is substantially lower than the one the government is seeking.”

August 26, 2011 in Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (0) | TrackBack

Bill to put California death penalty on ballot stalls

As detailed in this local piece, which is headlined "California Death Penalty Won't be on Ballot," a state bill "that would have allowed voters to decide whether or not to get rid of the death penalty was killed on Thursday, sort of." Here is more:

SB 490 would have eliminated the death penalty and replaced it with life in prison without the possibility of parole. The Assembly Appropriations Committee was supposed to vote on SB 490 on Thursday but the bill’s author, Sen. Loni Hancock (D-Oakland), withdrew the bill because, “The votes were not there.”

Despite the move, Hancock said she still believes in the bill, "The death penalty is not tough on crime. It's tough on the tax payers.”... Hancock added that money could be better spent on things like education, keeping police on the streets, and infrastructure.

The death penalty was approved by voters in 1978, and if SB 490 had been approved it would have gone back to the voters.... Even though the bill was withdrawn, Gov. Jerry Brown made somewhat of a statement about SB 490 and said that he would be in favor of it going to a vote of the people.

August 26, 2011 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

August 25, 2011

Split Florida Supreme Court finds fundamental due process error with sentencing judge's "round-up" policy

The Florida Supreme Court has a notable little sentencing ruling today in Cromartie v. Florida, No. SC09-1868 (Fla. Aug 25, 2011) (available here), that perhaps math majors should enjoy even more than others: the case concerns a sentencing judge's policy to round-up a suggested prison term to a whole number based on the applicable state guideline score.  In this case, the defendant ultimately "scored" a sentence of 6.16 years under the applicable guidelines, but the sentence judge gave him 7 years in prison based on her "round-up" policy.

A majority of the Florida Supreme Court found troublesome this approach to sentencing, and here is the key concluding paragraph from the per curiam majority opinion:

Here, the sentence imposed was within the legal guidelines — it was above the minimum required by the scoresheet and below the statutory maximum, but the trial judge’s stated policy "improperly extended" Cromartie’s incarceration in an arbitrary manner.  Because we find that this policy of "rounding up" violated Cromartie’s right to due process, we quash the decision below and remand with directions that the trial court be directed to enter a sentence at the bottom of the guidelines and consistent with the reasoning we have expressed herein.

Two Justices dissented, and the Chief Justice expressed the disagreement on these terms:

Because I conclude that the comments of the sentencing judge which are at issue here do not constitute fundamental error, I dissent.  The minor impact of the sentencing judge’s "rounding-up" methodology on Cromartie’s sentence does not rise to the level of error "that affects the determination of the length of the sentence such that the interests of justice will not be served if the error remains uncorrected."  Maddox v. State, 760 So. 2d 89, 100 (Fla. 2000).

We have warned that the fundamental error doctrine applies only rarely, Harrell v. State, 894 So. 2d 935, 941 (Fla. 2005) — that is, "where a jurisdictional error appears or where the interests of justice present a compelling demand for its application." Smith v. State, 521 So. 2d 106, 108 (Fla. 1988).  The error asserted here is not of this magnitude. Although I do not agree with the First District’s characterization of the asserted error here as "a denial of due process," I agree with the First District’s decision to affirm the sentence.  Cromartie v. State, 16 So. 3d 882, 883 (Fla. 1st DCA 2009).

August 25, 2011 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

"Deterrence key issue" says editorial about Fumo case, but just how much prison time is needed to deter?

The Scranton Times-Tribune has this new editorialresponding to the decision by the Third Circuit to reverse and remand the 55-month sentence given to former corrupt state pol Vincent Fumo.  The piece is headlined "Deterrence key issue," and here are excerpts:

As U.S. District Judge Ronald Buckwalter sentenced Vincent Fumo in 2010, it was hard to tell whether the former state senator from Philadelphia had been convicted of 137 fraud and obstruction of justice crimes against the people of Pennsylvania or a traffic violation.

After praising Mr. Fumo for his "good works," Judge Buckwalter sentenced him to 55 months in federal prison, far below the sentencing guidelines based on the offenses, including millions of dollars in fraud and destruction of evidence.

Tuesday, a majority of a three-judge panel of the U.S. 3rd Circuit Court of Appeals found that Judge Buckwalter owes an explanation for his leniency. The prosecution claimed in its appeal that Judge Buckwalter had failed to properly calculate $4 million worth of fraud by Mr. Fumo in abandoning the sentencing guidelines.

That doesn't necessarily mean that Mr. Fumo will receive a higher sentence from Judge Buckwalter, even though Judge Julio Fuentes wrote: "This evidence of Fumo's intent to divert the funds was overwhelming, and the district court's refusal to apply a two-level enhancement was an abuse of discretion." Prosecutors had sought a sentence of at least 121 months....

In corruption-plagued Pennsylvania, the ultimate outcome of this case is very important for the sake of deterrence. Several state legislators await trial on state charges. State Sen. Jane Orie awaits retrial on local charges in Allegheny County. Former state Sen. Raphael Musto of Luzerne County has been charged with corruption by federal authorities, who also are investigating former state Sen. Robert Mellow.

It's unfortunate that the web of corruption in so many aspects of governance in the commonwealth must be unspun by federal prosecutors rather than by elected representatives. It's vital, for the sake of clean government, that the courts recognize the need for deterrence when sentencing those who abuse their public offices for personal gain.

I largely agree with the basic theme of this editorial -- namely that deterrence can and should be a key issue in the sentencing of corrupt public officials.  That said, I would hope that Fumo's now reversed sentence of "55 months imprisonment, a $411,000 fine, and $2,340,839 in restitution," would generally be a severe enough sanction to make public officials think twice before going crooked. Moreover, it is well known that the certainty and swiftness of a punishment often matter much more than severity in serving the goal of deterrence.

I do not mean these comments to be a blanket defense of the sentence that Fumo initially received.  But I do mean to highlight the difficulty of turning a general concern for deterrence into a specific sentencing outcome and also to question whether any pol is likely to be more deterred if (and when?) Fumo's prison term gets a little (or a lot) longer.

Related posts on Fumo sentencing and appeal:

August 25, 2011 in Booker in the Circuits, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Split Sixth Circuit panel reverses Ohio death sentence based on IAC at sentencing

As revealed via today's opinion in Foust v. Houk, No. 08-4100 (6th Cir. Aug. 25, 2011) (available here), yet another capital case has the judges of the Sixth Circuit in yet another disagreement over habeas review. Here is how the majority opinion in Faust (per Judge Moore) concludes:

Despite Foust’s gruesome crime, there is a reasonable probability that, had the three-judge panel heard the true horror of Foust’s childhood, at least one of the judges would not have sentenced Foust to death.  The Ohio Court of Appeals’s conclusion to the contrary was unreasonable, and the district court erred when it denied Foust’s petition.   On the issue of ineffective assistance of counsel, we REVERSE the judgment of the district court and GRANT a conditional writ of habeas corpus vacating Foust’s death sentence, unless the State of Ohio commences a new penalty-phase trial against Foust within 180 days from the date on which this judgment becomes final.

Here is how Chief Judge Batchelder's dissenting opinion in Faust begins:

This case involves heinous wrongdoing, both on the part of Foust and on the part of those who were charged with his care as a young child.  There is no doubt that Foust endured a truly horrific childhood. And I cannot disagree with the majority’s conclusion that his counsel performed deficiently for failing to conduct further investigation during the mitigation phase.  However, I do not agree with the majority that the Ohio Court of Appeals’ conclusion that Foust was not prejudiced as a result of his counsel’s performance was unreasonable.

August 25, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Sixth Circuit affirms 30-year sentence for CEO responsible for losses of over $2 billion

A notable white-collar appeal was resolved by the Sixth Circuit today via a lengthy opinion in US v. Poulsen, No. 08-4218 (6th Cir. Aug. 25, 2011) (available here).  Most of the 30-page opinion is about trial issues, though there is some notable discussion of loss calculations toward the end of the opinion.  In addition, this sharp paragraph at the very end of the opinion explains the panel's rejection of the defendant's substantive unreasonableness claim concerning his 30-year prison term:

Finally, Poulsen argues that his sentence was substantively unreasonable because the district court failed to properly consider unwarranted sentencing disparities.  Poulsen submits that he should not have been compared to the CEOs of infamous companies such as WorldCom and Enron.  He asserts that every defendant should receive an individualized assessment based upon the specific facts of his particular case.  Conversely, Poulsen cites a number of sentences given to those whom he refers to as “the most notorious financial fraudsters in corporate America.” These defendants received shorter sentences for similar crimes.  Poulsen inconsistently argues that he deserved individualized treatment and then compares himself to other corporate offenders.  Poulsen presents no coherent argument as to why his sentence is substantively unreasonable.  We affirm the district court’s sentence in all respects.

August 25, 2011 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (0) | TrackBack

"Parents Blame Python Sentencing on Casey Anthony"

The title of this post comes from the headline of this local piece discussing a unique homicide case out of central Florida. Here is the explanation:

A man and woman in Central Florida are going to jail for manslaughter after their pet snake killed a toddler. And the man's attorney says it's all because of Florida mom Casey Anthony's acquittal....

Charles Darnell and Jaren Hare were both sentenced to 12 years in prison for manslaughter after 2-year-old Shaianna Hare was strangled to death by their pet python. Their defense attorney said the jury was influenced by what happened during the Anthony trial.  "The jury wanted to make an example after Casey Anthony," says Rhiannon Arnold, Charles Darnell's defense attorney.

This Orlando Sentinel piece, which is headlined "Reptile-loving couple sentenced to 12 years in prison in killer python case," provides more background on the case and the sentencing outcome:

Darnell, 34, and his live-in girlfriend, Jaren Hare, 21, faced a possible 45 years in prison for manslaughter and child neglect. They turned down a pretrial plea offer that would have capped their prison time at 10 years. They also will have to serve five years probation upon their release from prison.

Arnold's claim was brushed away by assistant state attorney Pete Magrino, who argued that the couple had "abdicated" their responsibility not only to 2-year-old Shaianna Hare but also to Gypsy, the 8-foot-6-inch Burmese python. "Unfortunately some criminal defense practitioners will say anything to justify in their own mind their position," Magrino said. "The jurors took an oath, and I firmly believe the jurors followed their oath with regard to this case and their findings of fact. The evidence presented to them in this case was overwhelming."

The couple's case was decided a week after jurors in Orange County found Anthony not guilty of murder in the death of her toddler daughter, Caylee. Arnold and fellow defense lawyer Ismael Solis Jr. called the death of Shaianna Hare a terrible "accident," pointing out the pet python had never attacked anyone in the home.

The toddler was bitten and strangled in her crib by the exotic constrictor snake which slithered from a glass tank in the couple's mobile home in Oxford, a rural community located about 60 miles northwest of Orlando. A medical examiner testified that the snake was trying to eat the child.

The snake, which, at 13 1/2 pounds, was grossly underweight, repeatedly escaped the 200-gallon tank, which had a quilt as a lid, before the fatal attack on July 1, 2009.  A snake expert testified during the couple's trial that an albino Burmese python of Gypsy's age should have weighed about 150 pounds....

Circuit Judge William "Bud" Hallman, who imposed the sentence on the couple, said he mulled over defense arguments that the tragedy could have happened to anyone who keeps a big dog, a horse or other large animal.

"Horses eat grass, they eat oats — that's different from a wild animal that unfortunately, based on the testimony, eats small mammals," he said.  "The child was a small mammal, which is on the menu for a wild animal, which a snake is."  The judge compared keeping the python to keeping an alligator in the house.

August 25, 2011 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (9) | TrackBack

August 24, 2011

"The Child Pornography Crusade and its Net Widening Effect"

The title of this post is the headline of this new article by Professor Melissa Hamilton, which is now available via SSRN. Here is the abstract:

The criminal justice system’s effort to combat child sexual exploitation has taken on a primary and aggressive focus toward prosecuting those who violate child pornography laws.  The deontological policy labels all child pornography offenders, whether they are producers or merely viewers, as morally bankrupt and a threat to the nation’s children.  Yet the basis for the policy bears fundamental flaws, and this article explores them.  The article first summarizes legislative efforts to bolster child pornography laws and lengthen sentences for violators.  It then provides a synthesis of criminal justice initiatives that are expending substantial resources targeted toward investigating, prosecuting, and punishing child pornography offenders.  The policy and the initiative rely on a presumption that child pornography consumers are in reality undetected pedophiles and child molesters who are at high risk of sexually abusing children.

This article challenges the presumption by comprehensively analyzing certain of the most commonly cited studies that purport to empirically support correlations between child pornography, pedophilia, and child molestation.  It also highlights other empirical evidence, as well as some practical considerations, that instead tend to show that most child pornography offenders are at low risk of committing contact sexual offenses.  In sum, the concentration on child pornography crimes appears to be a misinformed policy that fails to directly protect real children from harm. 

August 24, 2011 in Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (17) | TrackBack

Seventh Circuit judges explain their latest views on FSA pipeline cases

Regular readers know that district court and circuit courts have been struggling through (and splitting) on whether the new crack mandatory minimum sentencing provisions of the Fair Sentencing Act apply in cases involved offenses pre-dating the new law but not yet sentenced.  The Seventh Circuit was the first, and remains the only, circuit to rule expressly that the old harsher 100-1 mandatories still apply to these pipeline cases.  Today, though a set of opinions in US v. Holcomb, No. 11-1558 (7th Cir. Aug. 24, 2011) (available here), a number of Seventh Circuit judges explain at length their latest thinking on this issue in opinion that accompany an order refusing to reconsider this issue en banc.

There is a lot of interest in these opinion for those like me who have been following this debate closely.  Here are a few snippets, first from the end of Judge Easterbrook's 16-page opinion:

If the President wants to apply the lower min imum and maximum penalt ies to all cases, pending and closed, he has only to issue a general commutation. The pardon power permits the President to achieve retroactive lenience if he is willing to pay the political price. By contrast, the judiciary must implement compromises faithfully, even when most judge s wi sh that the political decision had been different. I have therefore voted not to hear these appeals en banc.

Now from the second paragraph of Judge Williams' 20-page opinion:

Our circuit should have heard this case en banc.  Three other circuits have ruled that judges no longer must impose unfair sentences after the Fair Sentencing Act.  This issue affects pending cases and many c ases to come in light of the five-year statute of limitations on drug prosecutions. There were equal votes to grant and deny rehearing en banc.  So our circuit’s law stands, and it is wrong.

Some prior posts on this FSA pipeline issue: 

August 24, 2011 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

"Psychopathy and Culpability: How Responsible is the Psychopath for Criminal Wrongdoing?"

The title of this post is the title of this new paper by Professor Reid Fontaine (and two co-authors), which is now available via SSRN.  Here is the abstract:

Recent research into the psychological and neurobiological underpinnings of psychopathy has raised the question of whether, or to what degree, psychopaths should be considered morally and criminally responsible for their actions.  In this article we review the current empirical literature on psychopathy, focusing particularly on deficits in moral reasoning, and consider several potential conclusions that could be drawn based on this evidence.  Our analysis of the empirical evidence on psychopathy suggests that while psychopaths do not meet the criteria for full criminal responsibility, they nonetheless retain some criminal responsibility.  We conclude, by introducing the notion of rights as correlative that even if psychopaths were to be fully non-responsible, it would still be warranted to impose some form of civil commitment.

August 24, 2011 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack

Montana death penalty process assailed as unconstitutional based on Sixth Amendment

As detailed in this local article, headlined "Attorney says death penalty unconstitutional," lawyers for a Montana double-murderer are pressing a Sixth Amendment attack on the state's administration of capital punishment.  Here are the details:

An attorney for accused double murderer Tyler Michael Miller argued that Montana’s death penalty statutes are unconstitutional Tuesday during a brief hearing in Flathead District Court.

Miller, formerly known as Cheetham, was arrested on Christmas Day 2010 hours after allegedly gunning down his ex-girlfriend Jaimi Hurlbert and her 15-year-old daughter, Alyssa Burkett.   Miller’s attorney Ed Sheehy reiterated his written arguments included in a June filing opposing the state’s practice of allowing judges rather than juries to issue capital sentences.

He also noted that Montana law dictates that there must be a presence of aggravating factors and an absence of mitigating factors for a court to pronounce the death penalty to a defendant.  “It is only when there are no such circumstances that the death penalty can be imposed and that is a decision that must be made by a jury and sadly not by the court alone,” Sheehy said.

One such mitigating factor potentially could be mental deficiency or disease, an avenue being explored by Miller’s defense.   Experts retained by Miller’s defense have concluded that Miller has long abused drugs and suffered from various mental disorders....

[District Judge Stewart] Stadler did not provide a timetable for when he might rule on Miller’s motion.   He said the timing of future rulings and hearings will be contingent on whether or not Miller is ruled competent to stand trial.  Two mental health professionals from the Montana State Hospital recently were scheduled to evaluate him.

This press report suggests that competency issues might get in the way of this case becoming an importance vehicle for exploring the echoes of the Supreme Court's Ring ruling concerning the impact of the Sixth Amendment on death penalty sentencing.  Also, I do not know if Montana's rarely-used death penalty is clearly problematic in light of Ring.  But I do know that eventually, the Supreme Court is going to have to address some of the Sixth Amendment questions raised but not resolved a decade ago in Ring.

August 24, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Uh-oh, looks like the internet is a gateway drug for teeenagers..

based a new study reported in this Chicago Tribune article which details that teens who use "social networks are considerably more likely to smoke, drink or use marijuana than teens who don't visit the sites."  Here is more from the press report:

The National Center on Addiction and Substance Abuse at Columbia University in New York found that teens who spend time on the social networks are likely to see images of their peers drinking or using drugs — images that could help to convince them that substance abuse is a normal, acceptable activity.

"We're not saying (social media) causes it," said Joseph Califano, the center's chairman. "But we are saying that this is a characteristic that should signal to (parents) that, well, you ought to be watching."

The findings are in keeping with a new wave of research into how social networks might affect teen decision-making. Several studies have suggested that Facebook, Myspace and other sites have created a new form of peer pressure, exposing young people to risky behaviors they could be tempted to emulate.

That conclusion rings true to some teens and parents. "The Internet puts it in your head," said Dana Cichon, 16, a junior at Bartlett High School. "You think everyone else is having more fun than you."

But some experts warn that the research, like social media itself, is still in its infancy, and that the correlation between social networking and teen substance abuse could be disguising more relevant risk factors. Others contend that bad influences in the real world are much more potent....

The National Center on Addiction and Substance Abuse does an annual survey to track teens' attitudes on drinking, smoking and drug abuse, and this year it added questions about social media. It found that, compared to young people who avoid the sites, teens who regularly visit them are twice as likely to use marijuana, three times more likely to drink alcohol and five times more likely to use tobacco.

The survey also found that about half of those who use social media have seen online pictures of teens getting drunk or high or passed out, Califano said. Many saw the images before age 14. "I think there's no question there's a relation there," he said.

Other research has also suggested a link between social media and teen substance abuse. Dana Litt, a psychologist at the University of Washington in Seattle, did an experiment last year where she showed teens Facebook profiles that depicted adolescents drinking. "I found that even in a fairly brief exposure … individuals who saw these alcohol images said they were more willing to get drunk in the future and thought the type of person who got drunk was more favorable," she said.

While she cautioned that more research is needed — something other than social media could turn out to be the true risk factor — she said the sites might indeed have an outsize influence on what teens think is normal. "Instead of simply knowing what your best friends do, you can see what your 500 Facebook friends do," she said. "I think that it might possibly change their ideas of how common behavior is."...

Myspace did not respond to a request for comment, but a spokesman for Facebook said the site removes content that promotes illegal drug use when its reviewers become aware of it. The company also referred to the work of Mike Males, a researcher at the Center on Juvenile and Criminal Justice in San Francisco who is unconvinced of the link between social media and teen substance abuse.

Males said the research hasn't sufficiently controlled for other factors that could prove far more decisive, such as a parent's use of drugs or alcohol. "I'm not discounting that media may play a part … but you have to assess how important a factor that is when teenagers see drunken people in their real lives," Males told the Tribune. "That's something the studies don't address."

Obviously, with tounge-in-my-cheek, I think the only proper response to this troublesome study would be for legislators to make all social media illegal and also to create special sentencing provisions providing strict mandatory minimums for anyone who might seek to expose any teenagers to social media.  (Though I am joking here, my facetious legislative proposal sadly does echo how in other settings some lawmakers respond to any evidence that something new might be somehow hurting kids.)

August 24, 2011 in Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (67) | TrackBack

August 23, 2011

Florida Supreme Court approves state's new execution protocol

As detailed in this UPI report, "Florida's Supreme Court ruled Tuesday a barbiturate can be used in the state's lethal injection cocktail and the execution of a convicted killer can proceed." Here is more:

The drug, pentobarbital, came into question when lawyers representing Manuel Valle, who was scheduled to be executed Aug. 2, argued that the use of the drug could constitute cruel and unusual punishment...

A Miami-Dade judge rejected the argument, but the Florida Supreme Court postponed the execution so Circuit Judge Jacqueline Hogan Scola could hold a hearing on the effectiveness of pentobarbital....  The high court ruled Tuesday that the use of the drug is constitutional and declined to hear oral arguments.

Valle, who was convicted and sentenced to death for the 1978 shooting and killing of a Coral Gables police officer, is now scheduled to be executed Sept. 1.

The per curiam unanimous opinion in this case from the Florida Supreme Court runs 43 pages and can be accessed at this link.

August 23, 2011 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Split Seventh Circuit panel decides Padilla v. Kentucky is not retroactive

Interesting ruling today by a split Seventh Circuit panel today in Chaidez v. US, No. 10-3623 (7th Cir. Aug. 23, 2011) (available here), starts this way:

In Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010), the Supreme Court held that an attorney provides ineffective assistance of counsel by failing to inform a client that a guilty plea carries a risk of deportation.  The district court concluded that Padilla did not announce a new rule under the framework set forth in Teague v. Lane, 489 U.S. 288 (1989), and consequently applied its holding to Petitioner Roselva Chaidez’s collateral appeal.  Because we conclude that Padilla announced a new rule that does not fall within either of Teague’s exceptions, we reverse the judgment of the district court.

A lengthy dissent by Judge Williams begins this way:

At the time Roselva Chaidez, a lawful permanent resident since 1977, entered her plea, prevailing professional norms placed a duty on counsel to advise clients of the removal consequences of a decision to enter a plea of guilty.  I would join the Third Circuit in finding that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), simply clarified that a violation of these norms amounts to deficient performance under Strickland v. Washington, 466 U.S. 668 (1984). See United States v. Orocio, ___ F.3d __, 2011 WL 2557232 (3d Cir. June 29, 2011).  As such, Padilla did not announce a “new rule” under Teague v. Lane, 489 U.S. 288 (1989), and is therefore retroactively applicable to Chaidez’s coram nobis petition seeking to vacate her guilty plea on the grounds that her counsel was ineffective.  For the reasons set forth below, I dissent.

In the wake of this ruling on the heels of a contrary ruling by the Third Circuit, it would seem like the question going forward is not whether, but just when and how the Supreme Court will take up and resolve this issue.

August 23, 2011 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

What sentence is deserved (and not disparate) for mass horrific stash of downloaded kiddie porn?

The question in the title of this post is prompted by this eye-pooping local story out of Ohio, which is headlined "More than 177,000 child-porn images found at London man's home."  Here are the details:

A London man has been charged with possession of what a prosecutor describes as the largest cache of computerized child pornography ever uncovered in Madison County.

Donald Lemasters, 43, was charged with 15 counts of pandering sexually oriented material involving minors, nine counts of possessing sexually oriented material involving minors and one count of possession of criminal tools.

Assistant Prosecutor Eamon Costello said authorities found more than 177,000 images of nude children and minors involved in sexual activities on a computer and CDs at Lemasters’ home.  Lemasters is not accused of producing the pornography....

Lemasters appeared yesterday in Madison County Common Pleas Court. Judge Robert D. Nichols released Lemasters on his own recognizance and placed him under house arrest.

Madison County Prosecutor Steve Pronai said the case is easily the worst he has handled. “This is some of the most disgusting stuff I have ever seen. You can’t even look at it,” he said. “We’re talking just babies here.”

He said a Franklin County task force that trolls the web to target child pornographers received a hit on a file-sharing website that linked thousands of images to Lemasters.

Regular readers are surely aware of examples of federal defendants getting sentences that run into decades for downloading only a few hundred picture of the worst kidde porn, and the enhancements that are imposed under the federal sentence guidelines based on the number of images top out at 600.  How then should the criminal justice system (and in this case it for now appears to be the Ohio state system) deal with an offender who has literally hundreds of thousands of more images?

August 23, 2011 in Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack