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September 3, 2011

Ohio Gov Kasich postpones another execution based on lethal injection litigation

The fortuity of the setting of execution dates and the pace of lethal injection litigation has now led to an Ohio murderer getting a new two year lease on life.  The basics are explained in this local Columbus Dispatch story, headlined "Kasich postpones another execution; Judge’s criticism of lethal-injection protocol leads to delay until 2013":

Ohio’s third execution in a row has been postponed because of a court battle over lethal-injection procedures.  Gov. John Kasich yesterday postponed the scheduled Sept. 20 execution of Billy Slagle of Cuyahoga County until Aug. 7, 2013.  Slagle, 42, was sentenced to death for the 1987 murder of his neighbor, Mari Anne Pope.  He stabbed Pope 17 times with a pair of scissors after breaking into her house to rob her.

The nearly two-year delay is necessary because other executions are scheduled monthly, except in December, between now and that date.  The Slagle postponement is related to a lawsuit contesting Ohio’s lethal-injection protocol.  It is being heard by U.S. District Judge Gregory Frost. In blocking the July execution of Kenneth Wayne Smith, 45, of Hamilton, Frost criticized Ohio’s lethal-injection rules and procedures, calling them “haphazard” and unacceptable.

That prompted Kasich to postpone the Aug. 16 execution of convicted killer Brett Xavier Hartmann, 37, of Summit County, for 15 months.  The next scheduled execution is that of Joseph Murphy of Marion County, sentenced to death for murdering Ruth Predmore, 72, in 1987.  So far, there has been no delay in that case.

The Ohio Parole Board on Thursday recommended against clemency for Slagle, concluding that the excessively violent nature of the crime outweighed the mitigating effects of his turbulent childhood.

I find this latest postponement somewhat surprising given that, as reported in this prior post, Ohio a few weeks ago released a new lethal injection protocol.  But, given the inevitability of more litigation over this new protocol, perhaps Gov Kasich should simply be complimented for helping to ensure that the constitutional debates over the new protocol do not have to take place in the shadow of a September execution date.

Some recent related posts:

September 3, 2011 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (15) | TrackBack

September 2, 2011

Roger Clemens to have to face retrial in April 2012

As detailed in this Washington Post report, a "federal judge ruled Friday that prosecutors will have another chance to try former star pitcher Roger Clemens on charges that he lied to Congress about taking performance-enhancing drugs."  Here is more:

The ruling came during a hearing before U.S. District Judge Reggie B. Walton, who weighed whether a retrial would violate Clemens’ Constitutional rights.  Walton said the decision was not an easy one, but he felt that he had no choice but to allow prosecutors to move ahead.  He set an April 17 trial date....

“While I am very troubled by what occurred and it was something that should not have taken place,” Walton said, “I just think that the current state of the law would not justify me concluding on the record we have in this case that the double jeopardy clause bars reprosecution.”

Earlier in the hearing, Walton had castigated government lawyers, saying he had “a hard time reaching any other conclusion” than prosecutors had intentionally disobeyed one of his orders when they introduced the barred evidence.

September 2, 2011 in Celebrity sentencings, Who Sentences? | Permalink | Comments (18) | TrackBack

"Don’t Blame Perry for Texas’s Execution Addiction. He Doesn’t Have Much to Do With It"

The title of this post is the headline of this great new pieceby Professors Carol Steiker and Jordan Steiker appearing in The New Republic.  Here are excerpts:

Though governors are often depicted as “presiding” over state executions, as a matter of both law and recent tradition, the Texas governor’s office plays a quite limited role in the administration of the death penalty.  The decision to seek a death sentence is an entirely local prerogative — made by the district attorneys in Texas’s 254 counties (a majority of which have not sent anyone to death row since 1976). Thus, just as Governor Perry bears no responsibility for the size of the substantial death row he inherited, he cannot be credited or blamed for the significant decrease in capital sentencing over the past decade, a decrease mirrored in the rest of the country. The governor also plays no role in defending capital convictions in state and federal court (a job shared by the local district attorneys and the state attorney general — an independently-elected official).  As convicted death-sentenced inmates exhaust their appeals, the decision to set execution dates remains entirely with the trial judge who presided over the conviction and sentence. Again, unlike in some other states, the governor has no role — formal or informal — in deciding whether to move a case (and a defendant) to the precipice of an execution....

Although the Texas death penalty train runs largely without a conductor, Governor Perry’s few public moments involving capital punishment provide a revealing record of his executive role respecting the death penalty.... His veto of a ban on executing the mentally retarded has had little effect, given the Supreme Court’s conclusion that “evolving standards of decency” require such a ban as a matter of constitutional law.  But it does show Perry’s willingness to take an extreme position — and his unwillingness or inability to offer a thoughtful defense of that position.  In addition, Perry’s abdication of executive review of executions in the nation’s death penalty epicenter is regrettable and frightening, given the very real possibility of the wrongful execution of the innocent. Cameron Todd Willingham’s case is emblematic of that possibility — and here, Perry’s lack of transparency, coupled with his willingness to use his political muscle to deep-six a reasonable investigation, speak the most loudly about what his death penalty politics say about his political leadership.

Some recent related posts: 

September 2, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (39) | TrackBack

Should Ohioians wonder if we could have gotten more than $72.7 million in a prison sale?

The question in the title of this post is prompted by this Reuters report on the prison sale that went through in Ohio yesterday.  Here is the story:

Ohio said on Thursday it had gone through with a controversial plan to privatize a portion of the state's prison system, the latest step in Republican Governor John Kasich's campaign to shrink government and close the state's budget shortfall.

Officials said the state had sold the Lake Erie Correctional Institution, an 11-year-old prison housing about 1,500 nonviolent prisoners, to the Corrections Corporation of America for $72.7 million. The state will now pay the Nashville-based company to run the facility.

The privatization of parts of Ohio's prison system was one of the deficit-closing provisions contained in the budget Kasich signed into law earlier in June.  In all, Ohio hoped to sell five prisons, and raise as much as $200 million, in the privatization process.  But the bids on the other four facilities fell short of the state's hopes and they will remain in government hands for now....

Carlo LoParo, spokesman for the Ohio Department of Rehabilitation and Corrections, told Reuters the state of Ohio would pay CCA a per diem of $44.25 for each inmate at the Lake Erie prison.  He said CCA's operating costs will be eight percent less than estimated state operational costs, generating a projected $3 million in annual savings.

Ohio has used private companies to manage state-owned prisons since 2001.  Currently, Ohio has 31 correctional institutions housing approximately 51,000 inmates.

Ever the questioning blogger, I cannot help but wonder if Ohio might have even gotten more dollars out of this deal.  I am pleased to learn that the state refused to sell four other prisons because of concerns the offers were insufficient.  But how can I find out, as an interested blogger and Ohio voter, whether the deal that did go through was a good one for Ohio. 

Some recent related posts:

September 2, 2011 in Prisons and prisoners, Who Sentences? | Permalink | Comments (1) | TrackBack

A high-profile lesson in how not to show up to a federal halfway house

This amusing new item from the New York Times, which is headlined "U-Turn for T.I.: From Halfway House Back to Prison," makes for perfect Friday blog fare.  Here are the details:

The rap artist T.I. was sent back to prison Thursday after he showed up at a halfway house in Atlanta in a luxury bus with an entourage. He was sent to a federal prison in downtown Atlanta to continue serving his sentence on a parole violation a day after it was announced he had a book deal with HarperCollins and a television reality show lined up with VH1.

Federal prison authorities did not say why they had decided that T.I., whose real name is Clifford J. Harris Jr., should remain in a cell.  His lawyer, Steven H. Sadow, said they had taken issue with “T.I.’s method of transportation” from Forrest City, a low-security prison in Arkansas, to the Dismas House in Atlanta.

“We don’t comment on specific inmate behaviors,” said Chris Burke, a spokesman for the Bureau of Prisons. He said T.I., who is 30 and a native of Atlanta, would be released Sept. 29.

In 2009 T.I. was convicted of trying to buy unregistered guns and silencers from undercover federal agents and served about seven months in prison before being released on probation. He was arrested again in September 2010 in Los Angeles on drug charges after the authorities said he had been found with four ecstasy pills, and he received an 11-month sentence from a judge for violating his probation.

He was all set to spend the last month of that sentence at the halfway house, and posted a joyous note on Twitter as he was released Wednesday morning: “The storm is over & da sun back out.”

VH1 announced the same day that it would have television cameras follow him after he is released for a reality television show to be broadcast in December. MTV did a similar show on him in 2009 called “T.I.’s Road to Redemption.” He also has a novel called “Power & Beauty,” co-written with David Ritz, coming out. It tells of two childhood friends caught up in violence on the streets of Atlanta....

After he was released from prison in 2009 he spoke frequently to schoolchildren about the dangers of drugs and gangs as part of more than 1,000 hours of community service he was required to perform. A federal judge declared that experiment in rehabilitation had failed when the authorities in Los Angeles discovered that he was carrying ecstasy.

September 2, 2011 in Celebrity sentencings, Criminal Sentences Alternatives, Prisons and prisoners | Permalink | Comments (10) | TrackBack

"Delinquent by Reason of Indigency"

The title of this post is the title of this interesting new piece by Professor Tamar Birckhead which is now available via SSRN. Here is the abstract:

This Essay, written for the 12th Annual Access to Equal Justice Colloquium, introduces the concept of needs-based delinquency, a theory that challenges basic presuppositions about the method by which the United States juvenile justice system determines whether a child is delinquent.  It argues that at each stage of the process -- from intake through adjudication to disposition and probation -- the court gives as much or more weight to the perceived "needs" of the child and her family than to the quality of the evidence against her or the ability of the state to prove its case.  Typical features of the juvenile code, including the procedures for intake and diversion and the use of bench rather than jury trials, combine to shift the system's emphasis from an evaluation of a child's criminal responsibility to an assessment of a family's social service needs.  The standard of proof, therefore, is determined in large part by the socioeconomic class of the accused rather than the nature of the forum, an orientation that lowers the standard for indigent juveniles while heightening it for affluent youth.  The result is that children from low-income homes do not have to be as "guilty" as those from families of means in order to be adjudicated delinquent, thereby widening the net of court intervention for poor children.

The Essay illustrates the variety of ways in which modern juvenile code provisions and delinquency court practice privilege consideration of juveniles’ needs over the weight of the evidence against them.  It argues that the juvenile court’s traditional focus on the needs of destitute youth continues to be reflected in the system's practices and procedures, despite the court’s shift in dispositional philosophy from rehabilitation to youth accountability and public safety.  It examines the structural and institutional causes of this development, beginning with the most common points of entry into the juvenile court system -- public schools, local businesses, and neighborhood police presence.  The Essay suggests that the juvenile court's continued emphasis on families’ needs when adjudicating delinquency has a disproportionate effect on low-income children, resulting in high rates of recidivism and perpetuating negative stereotypes based on class.  It offers strategies for confronting and reversing this trend, including data collection that records the income-level of juveniles’ parents and raising awareness of needs-based delinquency among police, prosecutors, judges, and agency personnel.  It challenges the view that in tight budgetary times, juvenile court involvement is the only way for poor children to access services, and concludes by proposing a service delivery model that cuts across public child welfare boundaries, with the goal of increasing fairness for all youth in the juvenile justice system.

September 2, 2011 in Offender Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2) | TrackBack

Discussion of notable federal civil suit against (over-zealous? malicious?) local DA

A number of regular commentors on this blog sometimes suggest that prosecutors ought to be subject to civil liability at least in cases involving extreme prosecutorial misconduct.  Those commentors (and others, I hope) should be especially interested in this local story out of San Diego that a helpful reader forwarded to me.  The story is headlined "Cynthia Sommer's suit against Dumanis proceeds; The widow is seeking $20 million in case that could play out during DA's mayoral run," and here is how the piece starts:

The sample of U.S. Marine Sgt. Todd Sommer’s liver and kidney was full of arsenic, more arsenic than had ever been found in a human tissue sample before — by 1,250 percent, according to a court complaint. It was a level that one Canadian toxicology expert said should have raised flags about whether the sample was contaminated.

Despite the improbability, and the medical examiner’s official finding that Sommer died of natural causes, San Diego County District Attorney Bonnie Dumanis mounted an unsuccessful murder prosecution of Sommer’s wife, Cynthia. The death was in 2002, but one aspect of the case remains.

A $20 million federal lawsuit filed by Cynthia Sommer says that Dumanis’ office should have known better, and that the prosecution amounted to misconduct and a violation of the woman’s civil rights.

Prosecutors proceeded because they believed that Sommer stood to gain from a $250,000 life insurance policy. They said that her behavior following his death — she got a breast augmentation, partied and slept with other men — bolstered their argument. Dumanis says her office acted appropriately, that it dropped the prosecution once reasonable doubt was raised.

The Sommer lawsuit, filed in September 2009, has proceeded. The suit originally named Naval Criminal Investigative Services officials and scientists with a federal laboratory that made the arsenic finding. A judge has dropped them from the suit, leaving Dumanis, County Medical Examiner Glenn Wagner and the federal government as defendants. Also remaining as a defendant is Deputy District Attorney Laura Gunn, who once told the media, “This is the coldest homicide I’ve had, in terms of being absolutely coldblooded.” Dumanis and Gunn lost a bid to dismiss the complaint against them in May 2010.

Dumanis, who is running for mayor of San Diego, could be in a federal courtroom as early as March for conferences and pretrial hearings in the case. A settlement conference and a pretrial conference are tentatively scheduled for March 14 and April 23, respectively. The election is June 5....

Cynthia Sommer was convicted in 2007 of the first-degree murder of Todd Sommer five years earlier. She was granted a new trial after a judge ruled that her defense attorney made mistakes that deprived her of a fair trial. She was released in 2008 after prosecutors dropped charges against her when new tests of arsenic-free tissue cast doubt on whether Todd Sommer was poisoned.

Cynthia Sommer’s lawsuit contains allegations that Dumanis’ office colluded with Naval investigators to wrongfully charge and prosecute Sommer. At the heart of her attorney’s charges is the allegation that the parties knew the chief evidence was tainted. Those samples had extraordinarily high levels of arsenic — levels never seen in the history of reported arsenic testing, according to the complaint.

A former director of a lab in Quebec that determined there was no arsenic in the second samples called the original results “physiologically improbable,” and possibly contaminated. “It is our position that, in spite of the evidence that was there that clearly suggested this was not a murder, the parties continued to maliciously pursue my client’s arrest and conviction,” said Robert Rosenthal, one of several attorneys representing Cynthia Sommer.

Five county attorneys have worked on the case, spending more than 1,280 hours since it was filed to defend the officials, at a cost of more than $100,000 to taxpayers.

September 2, 2011 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

September 1, 2011

"Mom who sold $31 in pot seeks reduction to 12-year sentence"

A helpful reader alerted me to this notable local sentencing story from Oklahoma, which carried the same headline as the title of this post.  Here are the details:

A Kingfisher County woman profiled in a Tulsa World story earlier this year examining the state's high female incarceration rate has a hearing for a sentence modification set for Oct. 6.

Patricia M. Spottedcrow, 26, received a 12-year prison sentence last October for selling a total of $31 in marijuana to a police informant in December 2009 and January 2010. Her mother, Delita Starr, 51, was also charged.

In blind guilty pleas before a judge, Spottedcrow received prison time, and her mother received a 30-year suspended sentence. Neither had prior criminal convictions.

[A]ttorney Josh Welch said he has requested Spottedcrow be present to speak directly to the judge.  "Patricia wants to let the judge know what she has learned and been through," Welch said.  "She wants him to know she's remorseful, accepts responsibility and it will not happen again.  She doesn't want a free pass or makes excuses for her conduct.  With all things said, we disagree with the 12-year sentence, with it being excessive for this case."

Spottedcrow was featured in a Tulsa World article on Feb. 20, published in media across the state through the nonprofit journalism group Oklahoma Watch.  The judge, who is now retired, said in a previous interview that Spottedcrow's decade-long sentence was imposed because her four young children were in the home at the time of the drug buys.  She said first-time offenders usually do not go to prison and alternatives including treatment are typically sought.

When Spottedcrow was booked into the jail after sentencing, some marijuana was found in a jacket she was wearing.  She pleaded guilty to a drug possession charge and was given a two-year sentence to run concurrent with her other sentence.

The judge said she gave Starr a suspended sentence so she could care for Spottedcrow's children, who are now 10, 5, 3 and 2....

While in prison, Spottedcrow has taken parenting classes, finished her GED and participates in a grief/loss recovery program, a behavior course, Alcoholics Anonymous/Narcotics Anonymous and a faith-based program. She is on the waiting list for some other programs and would like to go to college for a business degree, according to her court filing. She would have to spend at least 50 percent of her sentence in prison before being eligible for parole. "I am asking for a second chance at life, my chance to be a positive role model and a mother to my children," she wrote.

In response filed by prosecutors, they state the sentence is within the range of punishment allowed under the law and do not feel a modification is warranted.

Spottedcrow's case led to a groundswell of support through online petitions, donations to help her children and an Oklahoma City rally featuring Wayne Coyne of The Flaming Lips. Welch said her case has attracted people for different reasons such as reform of drug laws, issues surrounding incarceration of women/mothers and excessive sentencing.

A prison reform bill was signed into law by Gov. Mary Fallin in May. It will increase the eligibility for offenders who can be considered for GPS monitoring and community sentencing, enforce a 30-day deadline for the governor to sign paroles for low-risk nonviolent offenders, and add criteria for Pardon and Parole Board members. Welch said he is not sure any of the changes would have been a benefit to Spottedcrow or Starr.

"They have to be implemented, and judges and prosecutors must believe in them," Welch said. "This is a case screaming for help. The function of a judge is not just to punish people but to help people. That was lost in her case.

"It is time to change the mentality of judges that punishment is not always the best option. It's easy to step up to the podium and say, 'I'm tough on crime.' But it has consequences."

UPDATE The FAMM folks blogging at Sentencing Speak (who tipped me to this remarkable story) ask some good follow-up question in this post.

September 1, 2011 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (12) | TrackBack

Different results as Eighth and Ninth Circuits consider different Apprendi claims

In recent years, juicy cases raising Sixth Amendment Apprendi cases seem (too?) infrequent.  But today, both the Eighth Circuit and the Ninth Circuit handed down decisions involving Apprendi issues.  as the opening paragraphs reprinted below review (and as might be predicted by those knowing the Circuits' tendencies), the defendant in the Eighth Circuit lost and the defendant in the Ninth Circuit prevailed.

US v. Brown, No. 10-2747 (8th Cir. Sept. 1, 2011) (available here),  gets started this way: 

On Easter Sunday evening, fourteen-year-old Justin Timbear May (Timbear) was stabbed to death outside a home on the Red Lake Indian Reservation in northern Minnesota. A short time later, two other boys, FJW and CJH, were stabbed outside a nearby home. After a four-day trial, a jury convicted Patricia Brown of second-degree murder for the stabbing of Timbear, and of assault with a dangerous weapon for the stabbing of FJW, in Indian country.  See 18 U.S.C. §§ 113(a)(3), 1111, 1153.  The jury acquitted Brown of assaulting CJH. The district court imposed concurrent sentences of thirty years for the murder and ten years for the assault with a dangerous weapon.  Brown appeals, arguing the court erred in imposing mandatory minimum sentences under 18 U.S.C. § 3559(f) because age is an element of the offense that must be found by the jury, and in denying her motions to suppress evidence and to sever counts of the indictment for trial. We affirm.

US v. Hunt, No. 09-30334 (9th Cir. Sept. 1, 2011) (available here), gets started this way:

The district court sentenced Appellant Stacy Hunt to 180 months in prison after he pled guilty to attempting to possess a controlled substance with the intent to distribute in violation of 21 U.S.C. §§ 841(a), 846.  Hunt appeals his sentence but not his conviction. He alleges that the district court erred under Apprendi v. New Jersey, 530 U.S. 466 (2000), by sentencing him for attempted possession with intent to distribute an unspecified amount of cocaine even though he never admitted that he attempted to possess cocaine. We conclude that the district court erred under Apprendi and that the error was not harmless. Accordingly, we reverse and remand for resentencing.

September 1, 2011 in Blakely in Appellate Courts, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Defense raising notable race claims for Texas death row inmate soon scheduled for execution

This new Austin American-Statesman piece, which is headlined "Petition: Condemned man's sentence racially tinged," reports on a notable race-based argument being used to try to stop a scheduled Texas execution.  Here is how the piece starts:

In 2000, then-Texas Attorney General John Cornyn said seven death row inmates had been unfairly sentenced to death because improper racial testimony had been presented at their trials.  "It is inappropriate to allow race to be considered as a factor in our criminal justice system," Cornyn, now a U.S. senator, said at the time.

Six of those inmates later got new sentencing hearings. But a seventh — Duane Edward Buck, convicted of a 1995 Harris County double murder — did not.  Buck, 48, is scheduled to die Sept. 15. On Wednesday, Buck's lawyers petitioned the Texas Board of Pardons and Paroles and Gov. Rick Perry to stop the execution.

Buck's lawyers with the Texas Defender Service have also asked current Attorney General Greg Abbott and Harris County District Attorney Pat Lykos to agree to cancel the execution date, said Andrea Keilan, director of the service.  "It's very rare to see an attorney general concede error in a capital case, much less a series of capital cases," Keilan said.  "It shouldn't be controversial, and yet no one has stepped forward" to give Buck a new sentencing trial.

The seven cases identified by Cornyn were all tainted by testimony by psychologist Walter Quijano, who regularly told juries that defendants were more likely to commit future criminal acts because they were black or Hispanic.  He based his testimony on the fact that blacks and Hispanics are overrepresented in the Texas prison system when compared with the state's general population.

September 1, 2011 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

Dude, ... it is only worshipping Mother Mary, not mary jane, that gets protected by RFRA

The sad effort at stoner talk in the title of this post is my weak attempt to make humor in response to today's interesting decision by the Ninth Circuit in US v. Lafley, No. 10-30132 (Sept. 1, 2011) (available here), which gets started this way:

This appeal presents the question whether a convicted methamphetamine dealer is entitled, under the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. §§ 2000bb-2000bb-4, to use marijuana during his period of supervised release.  In the circumstances presented by this case, the district court declined to suspend the mandatory supervised release condition prohibiting such use.  We affirm.

And in case anyone is interest, the religious group to which the defendant in Lafley claimed to belong is Montana Cannabis Ministries.  Unfortunately, this ministry does not appear to have a website to which I can link, but I did find this notable Wikipedia entry on THC Ministry which starts this way:

The THC Ministry, founded by Roger Christie from the Religion of Jesus Church, is a religion which considers cannabis to be a sacrament.  Members base their practices on what they see as an eclectic mixture of ancient wisdom, modern science, and the enlightening and healing properties of cannabis sacrament.  Its mission includes "liberating the cannabis hemp plant and the minds of those who do and of those who do not revere it," and is actively involved in the legal and social discussions surrounding cannabis use in society.

September 1, 2011 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Would greater state and federal spending for public defenders actually save money?

The question in the title of this post is prompted in part by a passage coming from the recent Judicature piece by Christopher Durocher and Adrienne Lee Benson.   The piece is titled "A reform roadmap for the criminal justice system," and is an effective review/promoition of the February 2011 report titled "Smart on Crime: Recommendations for the Administration and Congress," produced by the bipartisan Smart on Crime Coalition (blogged/linked here).  The full article is worth a read, but this paragraph prompted this post seeking reader reactions:

Improving indigent defense systems is, in itself, a step towards increasing cost-efficiency in the broader criminal justice system.  Our adversarial system of justice only operates properly when both prosecutors and indigent defenders have the resources available to zealously advocate their side.  As Attorney General Holder observed, “Every taxpayer should be seriously concerned about the systemic costs of inadequate defense for the poor.  When the justice system fails to get it right the first time, we all pay, often for years, for new filings, retrials, and appeals.  Poor systems of defense do not make economic sense.”   Reforms to indigent defense are fundamental to creating a more cost-effective system of justice.

I agree with this statement in principle, though this paragraph dodges the essential political problem that improving indigent defense costs (lots of?) money right now for future (and unquantifiable?) savings later.  Moreover, I suspect that there may be some readers of this blog that do not agree with this statement in principle because they believe (or know) that spending more money on criminal defense functions just leads to more (and more costly) criminal defense efforts.

A more provocative (and less responsible?) way to perhaps cast this question would be to wonder if anyone really thinks that the Supreme Court's Gideon ruling and its progeny actually have helped create "a more cost-effective system of justice."  Thoughts, dear readers?

September 1, 2011 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

"It is capricious, barbaric and discriminatory, and should be abolished."

The title of this post is a sentence assailing  capital punishment from this editorial, headlined "The Military and the Death Penalty," appearing in this morning's New York Times.  Here is the context:

Racism in the application of capital punishment has been well documented in the civilian justice system since the Supreme Court reinstated the penalty in 1976.  Now comes evidence that racial disparity is even greater in death penalty cases in the military system.

Minority service members are more than twice as likely as whites — after accounting for the crimes’ circumstances and the victims’ race — to be sentenced to death, according to a forthcoming study co-written by David Baldus, an eminent death-penalty scholar, who died in June.

The analysis is so disturbing because the military has made sustained, often successful efforts to rid its ranks of discrimination. But even with this record, its failure to apply the death penalty fairly is more proof that capital punishment cannot be free of racism’s taint. It is capricious, barbaric and discriminatory, and should be abolished.

Recent related post:

September 1, 2011 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

August 31, 2011

Two new pieces in Journal of Law & Econ examine efficacy of sex offender registries

Cover This new press release from the University of Chicago Press Journals reports on two newly published articles examining the effectiveness of modern sex offender laws. Here are highlights:

Two studies in the latest issue of the Journal of Law and Economics cast doubt on whether sex offender registry and notification laws actually work as intended.

One study, by J.J. Prescott of the University of Michigan and Jonah Rockoff of Columbia University, found that requiring sex offenders to register with police may significantly reduce the chances that they will re-offend. However the research also finds that making that same registry information available to the broader public may backfire, leading to higher overall rates of sex crime.

Meanwhile, another study by University of Chicago Ph.D. student Amanda Agan finds no evidence that sex offender registries are at all effective in increasing public safety....

Using data from 15 states over more than 10 years, Prescott and Rockoff examine the evolution of sex offense rates as states passed and began to enforce their registration and notification laws....

Prescott and Rockoff find that a registration requirement without public notification reduces reported sex crime substantially, most likely through better police monitoring and more effective apprehension of recidivists. For a state with an average-sized registry, a registration requirement reduces crime by about 13 percent from the sample mean. The drop in crime gets larger as registries grow larger, indicating that registry laws lower crime by discouraging registered offenders from re-offending, as opposed to discouraging potential first-time offenders.

In contrast, public notification laws, such as the listing of released offenders on the Internet, may actually undo some or all of a registry's crime-reducing power. While Prescott and Rockoff discover that the threat of being subjected to notification deters some potential first-time sex offenders from committing crime, released offenders appear to become more likely to do so. In fact, adding public notification to an average state's registration law leads to slightly higher levels of total reported sex crime. Taken as a whole, the research shows that while police registration discourages sex offender recidivism, public notification actually encourages it.

Why would public notification encourage sex offenders to re-offend? Perhaps because they have little else to lose. In particular, notification can make the threat of prison less effective....

Agan finds no evidence that sex offender registries are effective in increasing public safety. Her study used three different types of analysis to test the effectiveness of sex offender laws. First, she compared arrest rates for sex crimes in each U.S. state before and after registry laws were implemented and found no appreciable changes in crime trends following the introduction of a registry.

Second, Agan tested whether registries discourage convicted offenders from re-offending. To do that, she looked at data on over 9,000 sex offenders released from prison in 1994. About half of those offenders were released into states where they needed to register, while the other half did not need to register. She could then compare crime rates in the two groups.

She found little difference in the two groups' propensity to re-offend. In fact, those released into states without registration laws were slightly less likely to re-offend. "The results show that an offender who should have had to register appears to behave no differently, or possibly worse, than on who did not have to register," she writes. "If anything, registered offenders have higher rates of recidivism."

Third, Agan looked at census blocks in Washington D.C. to see if higher numbers of sex offenders in a given block correspond to higher rates of sex crime arrests. She found that crime rates in general, and sex crimes in particular, do not vary according to the number of sex offenders in the area....

She concludes that sex offender registries do little to increase public safety, "either in practice or in potential."

Both these pieces appear in the February 2011 issue of the Journal of Law and Economics.  The Prescott and Rockoff piece, which is available on-line here, is titled "Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?".   The Agan piece, which is available on-line here, is titled "Sex Offender Registries: Fear without Function?".

August 31, 2011 in Criminal Sentences Alternatives, Data on sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (13) | TrackBack

News and notes on the sentencing of Galleon insider traders

The new Bloomberg article, which is headlined "Ex-Galleon Trader Drimal Sentenced to 5 ½ Year Term for Insider Trading," reports not only on today's high-profile white-collar federal sentencing but also on related sentencings past and future. Here are the highlights:

Former Galleon Group LLC hedge fund trader Craig Drimal, who admitted taking part in an insider-trading scheme that stretched from technology firms to pharmaceutical companies, was sentenced to 5-1/2 years in prison.

Drimal, 55, pleaded guilty in April to six counts of conspiracy and securities fraud, admitting that he and others at Galleon traded on inside information obtained from lawyers working on transactions involving 3Com Corp. and Axcan Pharma Inc. Drimal said the tips came from Arthur Cutillo and Brien Santarlas, lawyers at Boston-based Ropes & Gray LLP....

Prosecutors had asked Sullivan, who handed down the 66-month term today in Manhattan, to sentence Drimal within federal guidelines, which Sullivan said call for a sentence of 57 to 71 months.  Drimal asked for a sentence below the guideline range.   In addition to the prison sentence, Sullivan ordered Drimal to forfeit $11 million and to serve three years of supervised release.

Cutillo, who pleaded guilty in January, was sentenced to 30 months in prison in June. Santarlas, who pleaded guilty and testified at the Goffer trial, hasn’t been sentenced....

Drimal met with government representatives after Federal Bureau of Investigation agents approached him before his arrest in November 2009 and sought his cooperation, the government said.  Drimal then contacted former Galleon Group trader Zvi Goffer and told him about the probe, against instructions, prosecutors said.  Drimal also lied to SEC personnel in July 2008 when they interviewed him about the reason why he bought Axcan stock, prosecutors said.

Goffer was convicted of all 14 counts against him in June, in the second trial of defendants charged in a nationwide investigation of insider trading at hedge funds. In a sentencing memorandum filed today, Goffer told a judge he’s a changed man and asked to be sentenced to less than the 10 years in prison called for under U.S. sentencing guidelines....

Goffer’s former boss, Galleon Group co-founder Raj Rajaratnam, was convicted of insider trading in May. Prosecutors are seeking a sentence of more than 24 years when Rajaratnam is sentenced Sept. 27.

August 31, 2011 in Offense Characteristics, White-collar sentencing | Permalink | Comments (0) | TrackBack

"Is California’s Cunningham fix finally going to see the sun set?"

Lawyer and sentencing guru Mark Allenbaugh (firm website here) alerted me to an important developing issue in the revision and reform of California's sentencing law. At my request, Mark kindly wrote this post's title and this terrific guest-post on the topic:

In 2007, the U.S. Supreme Court in Cunningham v. California ruled that California’s three-tiered determinate sentencing scheme (known as the Determinate Sentencing Law or DSL) was unconstitutional per Apprendi v. New Jersey and Blakely v. Washington, ostensibly ending its 30-year reign.   Like its far more robust federal counterpart, DSL has been met with constant criticism.

Under California’s DSL, the presumptive sentence was the so-called mid-term sentence. For example, if the three terms available were 16, 24 and 36 months (and this is generally how the terms are spread, i.e., over a definite period of years), the sentencing judge would have to sentence the offender to 24 months (which really means a prison term of 12 months, since California is a half-time state, i.e., one can get up to 50% good time credit unlike the pithy 15% at the federal level) unless the judge found certain factors in mitigation, which would allow for a sentence at the low term (16 months in this case) or factors in aggravation, which would allow a sentence at the high term — 36 months.   Of course, this latter example was exactly the problem with California’s DSL, or so thought the U.S. Supreme Court — the presumptive mid-term sentence of 24 months really was the statutory maximum, which, since it could be raised to 36 months by judicial fact-finding, violated Apprendi.

Shortly after Cunningham the California legislature passed S.B. 40, which supposedly would provide a “Cunningham fix” by eliminating the mid-term presumption.   The legislation simply provided that a judge had discretion to sentence to any of the three terms, thereby ostensibly making the high-term the statutory maximum term.   Wisely, the legislature put a sunset provision into the 2007 law, which is now set to expire on January 1, 2012.

In light of the current financial crises effecting so many government institutions in the state (it was not that long ago when the “Governator” had to pay state employees with IOUs), coupled with the recent U.S. Supreme Court decision in Brown v. Plata upholding a federal three-judge panel’s order that California must significantly reduce its prison population, it is surprising that a new piece of legislation — S.B. 576 — that will, if passed, extend the Cunningham fix’s sunset provision to 2014, hasn’t received more attention. Just last week, on August 25, the bill was unanimously voted out of committee and may soon be on Governor Brown’s desk.  Sources indicate that the bill could be on the Governor’s desk as early as the end of this week!

An easy way, it would seem, to begin addressing California’s prison over-crowding crisis would be to let the Cunningham fix die a dignified death.   Making aggravating facts that must be proved to a jury to get the high-term obviously will make it more difficult to sentence offenders to the high-term, but will also ensure the due process rights that concerned the Supreme Court in Cunningham are met.  What California needs is not clever sentencing legislation to do an end-run around due process, but, as even President Obama has championed through the Fair Sentencing Act, smarter sentencing schemes that do not result in over-crowded prisons, which breed a culture of recidivism.

Ironically, it was Governor Brown (aka “Governor Moonbeam” for the disco generation) who signed California’s DSL into law in 1977.   He too has been a vocal critic of the DSL even while serving as the State’s Attorney General.   Now once again in the Governor’s seat, if presented with the bill to sign into law by the legislature, and in consideration of the fiscal, legal and humanitarian realities facing California’s prison system, Governor Brown would be wise to heed the words of his former girlfriend Linda Ronstadt and say to the bill “You’re no good! You’re no good! You’re no good! Baby, you’re no good!”

August 31, 2011 in Blakely in Legislatures, Blakely in the States, Who Sentences? | Permalink | Comments (1) | TrackBack

Severe "trial penalty" seemingly urged by feds in sentencing of Jack Abramoff aide

A helpful reader altered me to this new AP piece on a high-profile federal sentencing recommendation.  As the article explains, the severe sentence being urged by prosecutors has the sentencing judge already expressing concern that the feds want to punish the defendant for exercising his right to go to trial:

Prosecutors are recommending that a little-known defendant in the Abramoff lobbying scandal get 17 to 22 years in prison for treating government officials to meals and event tickets — a sentence that would exceed the time served by all 20 other defendants in the conspiracy combined.   The reason for the discrepancy?  Ex-lobbyist Kevin Ring refused to admit his guilt and unsuccessfully fought charges at trial.

"That's a pretty big penalty for exercising a constitutional right," U.S. District Judge Ellen Segal Huvelle remarked during a hearing Tuesday over Ring's sentencing recommendation.

Justice Department attorney Nathaniel Edmonds responded that a stiff sentence would not be a punishment for going to trial.  He said that cooperating defendants are rewarded with leniency, a distinction repeatedly upheld by the Supreme Court and frequently used in prosecutions.  "It's not retaliation," Edmonds insisted over grumbling from Ring's supporters in the courtroom's public benches.

The government's recommendation for Ring would dwarf the sentences of even the leading figures in the influence-peddling conspiracy that shook up Washington.   The ringleader, Jack Abramoff, was sentenced to six years in prison.  Michael Scanlon, Abramoff's partner in a kickback scam bilking clients out of tens of millions of dollars, was sentenced to 20 months.  Bob Ney, a six-term Ohio Republican congressman and the only lawmaker convicted in the scheme of trading gifts for favors, got 30 months.

Ring, an Abramoff deputy from Kensington, Md., was convicted after two trials of five felony counts including conspiracy, payment of a gratuity and honest services wire fraud. The first jury couldn't agree on his guilt so he had a second trial that led to his conviction in November.  He was accused of bribing public officials with meals at fancy restaurants and tickets to sporting events and concerts, but he tried to argue he was only doing a lobbyist's work of building relationships with government figures.

Other lobbyists who worked for Abramoff and were accused of similar conduct usually got off with probation, fines or time in a halfway house.  None of the public officials — two Capitol Hill aides and a special assistant for legislative affairs in the Bush administration's Justice Department — who accepted nights out with Ring and admitted doing favors for him in exchange were given any time in jail.

But those defendants all reached plea deals with prosecutors in which they admitted their guilt in exchange for a negotiated charge.  "He is the only lobbyist who went to trial and chose not to plead guilty and cooperate with the United States," Edmonds said.

Prosecutors justified their recommendation by using a different calculation for Ring than any other defendant in the case under federal sentencing guidelines.... Only in Ring's case prosecutors are arguing he should get an enhanced sentence under the guidelines because of the grants and appropriations he and his co-conspirators were able to get for his clients at the Abramoff firm in exchange for his corrupt relationships with public officials. They put that value at more than $14 million, including $7.3 million in increased funding for a jail for an Indian tribe client.

Ring attorney Timothy O'Toole argued that the sentencing guidelines are supposed to provide consistency in punishment for similar conduct.  "If the guidelines can be manipulated like that, they are meaningless," he said.

Huvelle questioned whether prosecutors should be able to use a different calculation for Ring.  She pointed out that the sentencing guidelines already consider a defendant's level of cooperation to compensate for his refusal to plead guilty.  "It does undercut the whole idea of the guidelines, you must admit," Huvelle said to Edmonds.  He responded that it's a legitimate tool to encourage cooperation and avoid the high taxpayer cost of a trial.

Huvelle is taking the issue under consideration before sentencing Ring on Oct. 26.  She can give him a sentence that is less than the guideline range if she deems it appropriate.

Even if the prosecutors' distinct guideline calculations were accepted, this case would seem to be a strong example of why 18 USC § 3553(a)(6) — which demands consideration of "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct" — may sometimes require a below-guideline sentence.

Some courts and commentators have been heard to claim that § 3553(a)(6) is always best served by a within-guideline sentence.  But I believe there are a considerable number of settings (such as this one, it seems) in which the "avoid unwarranted disparity" concern of § 3553(a)(6) is only served by a non-guideline sentence.

August 31, 2011 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Are Ventura County prosecutors involved in a kind of "kids for cash" scheme by trying more juves as adults?

The provocative question in the title of this post is prompted by this recent report on juvenile case processing in California issued by the Center on Juvenile and Criminal Justice. (Hat tip: The Crime Report.)   This local article, headlined "Is Ventura Trying More Kids As Adults Than Any Other County….for the Money?," provides this summary of the report and its disturbing implications:

This week the Center on Juvenile and Criminal Justice released a brand new report that shows, surprisingly, that Ventura and Orange counties are trying way, WAY more kids as adults than is LA County, particularly kids 15 and under.  However, the real surprise came when the study’s researchers concluded that the impetus behind those outsized numbers may have more to do with fiscal incentives than public safety....

In trying to figure out why certain counties filed so much more than others, the researchers noticed something interesting: a possible financial incentive.  As noted earlier, counties like Ventura and Orange not only direct-filed at a much higher rate than their neighbors like LA and San Diego County, they direct-filed on the youngest kids who qualified — 12, 13 and 14-year-olds — at an even higher rate.

But here’s the intriguing little secret: if you try a 13-year-old as a juvenile, he or she will be sentenced to a county juvenile facility — meaning the county will pay the kid’s hotel bills.  However, if those same kids are tried and sentenced as adults, they are sent to a state youth facility — and the state taxpayers, not the county, picks up the tab — at a rate of $200,000 per year per kid.

The researchers began to conclude that the DA’s in high filing counties were using the post Prop 21 mechanism simply to pass on the cost of locking up kids to the state — regardless of whether trying the kid as an adult was really warranted.   In other words, to hell with the health and well being of the kid or the community.  It’s all about the money.

Here, from the report itself, are some of the researchers' main findings:

• California counties vary widely in prosecutorial use of direct adult criminal court filing.

• During the 2003-09 period, California prosecutors direct-filed 4,045 youth in adult criminal court, with rates per qualifying felony offense in major counties ranging from 1.5 in San Francisco, 6.2 in Alameda, and 8.2 in Fresno to 122.1 in Ventura, 106.9 in Yolo, and 84.7 in Kings.

• The 30 counties that used direct-filing at rates higher than the state average experienced a lesser reduction in juvenile crime trends, both for qualifying felonies and other serious offenses, than the 28 counties that used the procedure at lower than average rates. Thus, prosecutor predilection towards direct adult criminal court filing is not founded upon any demonstrable effect of reducing juvenile crime rates.

• A youth committing a qualifying felony offense is five times more likely to be subject to direct-filing in Ventura County than in other counties.

August 31, 2011 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Notable comments from Justice Ginsburg concerning her work on the Court

Via this post at the Tex Parte Blog, I saw this interesting report on some recent comments by Justice Ginsburg concerning her work on the Court:

On the court, Ginsburg said the toughest part of her job always has been death penalty cases. To prepare for oral arguments in all cases, Ginsburg said she reads all the prior opinions and part of the record before opening the lawyers’ briefs.  She follows that order so she may spot inaccuracies in the briefs.  “Lawyers should know, if they try to distort the record, they will be found out,” she said.  Writers of amicus briefs face other concerns: “I have to confess, I don’t read all of those.  In fact, I don’t read most of them,” Ginsburg said.

August 31, 2011 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack

"Let public see executions"

The title of this post is the headline of this editorial from Newsday.  Here are excerpts:

Executions in the United States used to be carried out in the public square for all to see. They should be again, which in this digital age means on video.

The death penalty is barbaric, risks killing people who are not guilty, and provides no deterrent to those who would commit heinous crimes.  The nation should abandon the practice. But as long as people are being executed, the machinery of death shouldn't be hidden.  The criminal justice system operates in the open for a reason: It's the best way to ensure what it does is fair, just and acceptable to the public.

The issue of public executions arose recently when Georgia, one of 34 death penalty states, executed convicted killer Andrew DeYoung by lethal injection.  His lawyers wanted his death videotaped because a man executed in June using the same, three-drug cocktail was seen jerking, mumbling and thrashing after the injection, an indication the method may be inhumane....

Widely available images of executions carried out in this country might make people indifferent to the spectacle.  But they just might make people recoil instead -- and lead them to put an end to the grisly business of government-sanctioned killing.

Recent and older related posts:   

August 31, 2011 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (6) | TrackBack

August 30, 2011

"The Ballot as a Bulwark: The Impact of Felony Disenfranchisement on Recidivism"

The title of this post is the title of this interesting looking new paper by Guy Padraic Hamilton-Smith and Matthew Vogel, which is now available via SSRN. here is the abstract:

Felony disenfranchisement – the exclusion of individuals convicted of felonies from the voting rolls -- is a practice that is commonplace in the United States.  In 2010, approximately 5.3 million Americans were ineligible to vote because of a prior felony conviction.  Despite the fact that the justifications for disenfranchisement in a democratic society could be characterized as dubious, disenfranchisement has withstood various legal challenges and remains a widespread practice in almost every state.  One argument which has never been examined empirically is the notion that disenfranchisement hampers efforts to rehabilitate offenders, which is what this article does.

First, this article explores the history and philosophy that underlies disenfranchisement along with theoretical mechanisms by which disenfranchisement can be thought to have an impact on recidivism.  Second, the legal challenges that have been made against disenfranchisement are discussed with a particular focus on challenges under the Equal Protection Clause of the Fourteenth Amendment as well as the Voting Rights Act.  A novel constitutional argument under principles of congruence and proportionality is also examined.  Third, this article uses re-arrest data collected by the United States Department of Justice to examine the impact of felony disenfranchisement on recidivism. These results are discussed along with implications for future inquiries.

August 30, 2011 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Barry Bonds' federal sentencing now set for December

As detailed in this MLB.com report, a "sentencing date of Dec. 16 has been set for Barry Bonds, whose conviction for obstruction of justice was upheld in federal court last week."  Here is more background:

A seven-time Most Valuable Player who set the single-season and career home run records during his 22-year career, Bonds was convicted of obstruction but the jury could not come to a consensus on any of three counts of making false declarations.  The charges were based on Bonds' 2003 testimony before the Bay Area Laboratory Co-Operative (BALCO) grand jury, in which he denied knowingly using performance-enhancing drugs.

According to the indictment against Bonds, the maximum penalty for the obstruction charge is "10 years maximum imprisonment, $250,000 fine, three years supervised release, $100 special assessment fee."  But federal sentencing guidelines reportedly suggest 15-21 months, and previous BALCO sentences suggest Bonds could be given house arrest.

Illston, who has presided over the cases brought by the BALCO investigation, previously sentenced cyclist Tammy Thomas to six months of home confinement and track coach Trevor Graham to one year of home confinement.  Thomas was convicted of three counts of making false statements and one count of obstructing justice but was acquitted of two perjury charges.  Graham was convicted of one count of giving false statements, and the jury deadlocked on two other charges.

Illston ruled Friday that the record showed Bonds "endeavored to obstruct the grand jury" when he rambled and talked about friendship, fishing and being a "celebrity child" when asked whether trainer Greg Anderson ever had injected him with anything.  The defense still could appeal the conviction.

The government has yet to announce whether it will retry any of the charges that wound up in a hung jury.  While two wound up in favor of acquittal, according to jurors, Count Two -- also relating to whether Bonds received injections from Anderson -- was 11-1 in favor of conviction.

I am going to mark the December 16 date on my calendar in pencil; these high-profile sentencings have a tendency to get postponed for various reasons.  But I am already looking forward to seeing how the parties seek to apply 3553(a) to Bonds in their sentencing submissions. 

Related recent Bonds posts:

August 30, 2011 in Booker in district courts, Celebrity sentencings | Permalink | Comments (1) | TrackBack

Tenth Circuit panel decides Padilla v. Kentucky is not retroactive

In a decision similar to one handed down last week by the Seventh Circuit (blogged here), a unanimous Tenth Circuit panel today in US v. Hong, No. 10-6294 (10th Cir. Aug. 30, 2011) (available here), has decided that the Supreme Court ruling in Padilla v. Kentucky does not apply to the benefit of defendants whose conviction was final before the decision was handed down. Here is how the Hong opinion begins:

Chang Hong seeks to appeal the district court’s denial of his motion for relief under 28 U.S.C. § 2255 as untimely.  He asserted claims of ineffective assistance of counsel, alleging his counsel failed to advise him of the immigration consequences of his guilty plea as required by Padilla v. Kentucky, 130 S. Ct. 1473 (2010).  Hong argues Padilla is a new rule of constitutional law that applies retroactively to cases on collateral review, making his § 2255 motion timely.  We construe Hong’s notice of appeal and opening brief as a request for a certificate of appealability (COA) to appeal the district court’s order.

Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we find Padilla is a new rule of constitutional law, but it does not apply retroactively to cases on collateral review. Therefore, Hong’s § 2255 motion was untimely, and we conclude Hong has not made a substantial showing of the denial of a constitutional right.

August 30, 2011 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

"The Missing Jury: The Neglected Role of Juries in Eighth Amendment Punishments Clause Determinations"

The title of this post is the title of this interesting new piece by Professor Meghan Ryan, which in now available via SSRN. Here is the abstract:

A recent study of death penalty cases has revealed that judges, who are ordinarily thought of as the guardians of criminal defendants' constitutional rights, are more likely to impose harsher punishments than jurors.  This may be unsettling in its own right, but it is especially concerning because judges are the individuals charged with determining whether punishments are unconstitutionally cruel and unusual under the Eighth Amendment, and these determinations are supposed to be based on "the evolving standards of decency that mark the progress of a maturing society."  The study suggests that judges are out of step with society's moral norms, raising the question of why judges, rather than juries, are entrusted with resolving constitutional questions of cruel and unusual punishments.

This Article argues that juries are better equipped to make these determinations and that charging juries to employ their own moral values to decide these matters is consistent with the underlying purpose and history of the ratification of the Eighth Amendment. This shift in power would also be in line with the Supreme Court's recent elevation of the jury in criminal cases such as Apprendi v. New Jersey and United States v. Booker.

August 30, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

New push in California for 2012 ballot initiative to abolish the state's death penalty

As reported in this article in the Sacramento Bee, "advocates of abolishing the death penalty in California announced a new effort Monday to take the matter directly to voters next year."  Here is more:

Organizers say they will push for a ballot measure to focus the public's attention on the high cost of keeping inmates on death row -- $4 billion since 1978, according to one estimate -- and offer guarantees that condemned prisoners could never win release from prison....

Under the plan offered by the group, which calls itself Savings Accountability and Full Enforcement, or SAFE, condemned inmates would be given life without the possibility of parole and would be required to work in prison.  Contending that $184 million is spent annually in California on the death penalty, the group said the initiative would take savings from abolishing it and instead spend $30 million a year in the first three years on unsolved murder and rape cases....

Kent Scheidegger, legal director for the Criminal Justice Legal Foundation in Sacramento, said the people pushing for abolition are the ones who have contributed to the high cost of the death penalty. "The death penalty doesn't need to cost anywhere as much as it does," he said. "The only reason it does is that the very same people who are complaining about costs have succeeded in killing every reform we have." Scheidegger contends reforming the appeals process could cut years off the average time it takes from sentencing to execution, eventually cutting that time down to five years.

Currently, death row houses more than 700 inmates, some of whom have been there for decades. Since the death penalty was reinstated in 1978, 13 inmates have been put to death at San Quentin, two by cyanide gas and 11 by lethal injection....

Advocates of repealing the death penalty say they will need up to $1.5 million to gather the more than 500,000 valid signatures needed to get the measure on the ballot.

August 30, 2011 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (6) | TrackBack

"Alaska's 'Hot Sauce' Mom Sentenced to 3 Years of Probation, Fine, for Child Abuse"

Fans of Dr. Phil already know all about the "Hot Sauce Mom," and this ABC News article provides this interesting report on her crimes and sentencing:

A judge sentenced an Alaska mother of six to three years probation for child abuse for forcing her adopted son to drink hot sauce and take cold showers on a taped segment of the "Dr. Phil" show.

Calling the woman's actions "an extremely serious offense" and a "premeditated and gratuitous act," District Judge David Wallace today sentenced Jessica Beagley to 180 days in jail and a $2,500 fine, then suspended both sentences and told her she need the time and money to help rebuild and heal her family.

Beagley could have been sentenced to as much as one year in prison.  She must continue to receive counseling until professionals decide it is no longer needed.  Last week Beagley, 36, was found guilty of one count of misdemeanor child abuse by a jury of three men and three women.

At the sentencing, Beagley addressed the court, saying she felt that it was her most important job as a mother to care for and teach her children.  "I have three little boys all with special needs. I have one little boy who is much more special ... who came to me with special needs that I didn't know how to handle," she said.  Her husband, Gary, who is an Anchorage police officer, also addressed the court....

According to court documents, police began to investigate Beagley after she appeared with "Dr. Phil" McGraw in November 2010 of last year on a segment called "Mommy Confessions."  Beagley told McGraw about her difficulty disciplining her 7-year-old son, Kristoff. Video shot by her 10-year-old daughter showed Beagley at home in Alaska disciplining the boy.

Beagley and her husband adopted twin boys from Russia when they were 5 years old, the Anchorage Daily News reported.  The boy seen drinking the hot sauce is one of the adopted children. "We've tried a lot of different things to punish the kids," she said on the show.

On camera, Beagley is seen pouring hot sauce down the boy's throat as punishment for lying. Beagley, leaning over the boy as he sits on the bathroom counter, says, "don't spit it."  The boy can be heard screaming when Beagley forces him to take a cold shower....

Prosecutors had argued that Beagley performed the abuse to get a spot on the show. Her defense team argued that she came on the show in a desperate move to find ways to help her son.

August 30, 2011 in Celebrity sentencings, Offense Characteristics | Permalink | Comments (1) | TrackBack

August 29, 2011

Should every intersection be monitored by a red-light camera?

The question in the title of this post is prompted by this local article, headlined "Pa. governor's panel advises more red-light cameras."  Here are excerpts:

Cameras that catch people who run red lights have been spreading across the country, along with controversy. Now a panel appointed by Gov. Tom Corbett has recommended that Pennsylvania cities be allowed to deploy them to reduce crashes at dangerous intersections.

"It's using technology to affect behavior, reduce the cost of enforcement and improve enforcement," said state Transportation Secretary Barry Schoch, who chaired the governor's Transportation Funding Advisory Commission. The 40-member volunteer panel also recommended that the Legislature authorize speed cameras in road construction zones.

Currently, only Philadelphia is allowed to use red light cameras, under a pilot program that began in 2005. They are in place at 19 intersections and generate more than 100,000 citations a year....

Officials of the Philadelphia Parking Authority, which administers the program, say it has been hugely successful. Over a span of months, the cameras typically cause a 50 to 60 percent reduction in red-light running, said Christopher Vogler, the authority's manager of red light photo enforcement. On Roosevelt Boulevard, a "unique and very dangerous roadway" where the first cameras were set up, "there is a definite difference and positive difference in driver behavior," he said.  At the highway's intersection with Grant Avenue, monthly citations have declined from more than 4,000 shortly after deployment to fewer than 300.

More than 500 cities in 25 states use the cameras, and the number is growing, said David Kelly, president and executive director of the National Coalition for Safer Roads, formed to advocate for the systems and a recipient of funding from companies that market them.

The Insurance Industry for Highway Safety says its study showed a 24 percent decline in fatalities from red-light running in cities where the cameras are used, and reductions of 40 to 96 percent in violations.  It has estimated that 150 lives were saved over five years in the 14 biggest cities that use them.  "The greatest determining factor in getting people to change their behavior is the threat of a ticket," Mr. Kelly said.

The cameras have critics who say they don't reduce crashes and are deployed primarily to raise revenue. Some also have questioned the legality of citations issued without a police officer personally observing the violation.  In Los Angeles and Houston, the city councils have voted recently to remove the cameras.  The action in Houston followed a referendum in which voters by a small margin opted to eliminate them. Mr. Kelly said the opponents are a "vocal minority who are very loud and good at getting attention."...

State Rep. Paul Costa, D-Wilkins, who is sponsoring legislation to allow the cameras in Pennsylvania cities other than Philadelphia, said "this is not about money for me. They raise revenue, sure, but that's not what I'm about. This is about saving people's lives."... The cameras would be placed only at intersections with demonstrated safety and crash problems, he said. "We're not just having these things pop up everywhere."

Assuming the data reported here on lives saved is accurate (a big if), I am inclined to be a vocal advocate for greater use of red-light cameras.  Indeed, as long as these cameras do not increase traffic accidents, I still favor a policy that raises revenue through what is essentially a local tax on law-breakers. 

Especially if monies collected from traffic violations properly recorded by red-light camera are used on other public safety fronts, these cameras seem to me to be a win-win for all fans of utilitarian approachs to crime and punishment.  Or, dear readers, am I missing something important in this roadway safety cost/benefit analysis?

August 29, 2011 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (36) | TrackBack

"Baked Sale? Troopers find weed-laced treats after crash"

The title of this post is the headline of this local story from Ohio, which was just far too amusing not to blog. Here are the particulars:

Ohio State Highway Patrol troopers found four and a half pounds of marijuana-laced treats during a traffic crash investigation last Thursday in Boardman. While on the scene of a crash, troopers detected a strong odor of marijuana on one of the drivers.

They conducted a probable cause search of that driver's vehicle, and found individually wrapped Rice Krispies-like treats with a strong odor of marijuana. Further investigation revealed that the treats were laced with a liquid form of marijuana.

Patrick Altier, 22, of Boardman was charged with possession of marijuana and trafficking in marijuana, both third-degree felonies. He was also charges with OVI.

August 29, 2011 in Drug Offense Sentencing, Offense Characteristics | Permalink | Comments (0) | TrackBack

Botched Ohio capital prosecution produces split jurisdictional federal habeas ruling

The first paragraphs from the majority and dissenting opinions from the Sixth Circuit today in D’Ambrosio v. Bagley, No. 10-3247 (6th Cir. Aug. 29, 2011) (available here), tell more stories than I could effectively summarize.  Here is the first paragraph from the majority (per Judge Rogers):

This case requires this court to resolve whether a federal court has jurisdiction to bar the reprosecution of a criminal defendant when the court determines that the state has failed to comply with an earlier order issuing a conditional writ of habeas corpus.   Margaret Bagley, warden for the State of Ohio, appeals the district court’s decision to vacate a prior order and issue an unconditional writ that bars the reprosecution of Joe D’Ambrosio, an Ohio death row inmate.  Bagley argues that the district court lacked both subject-matter and Article III jurisdiction to make this ruling.  However, because the state failed to comply with the district court’s conditional writ, because the district court was acting pursuant to a Federal Rule of Civil Procedure 60(b) motion, and because this clearly presents a case or controversy, the district court had both subject-matter and Article III jurisdiction. 

Here is the first paragraph from the dissent (per Judge Boggs):

For more than twenty years, the State of Ohio has displayed a remarkable inability to competently prosecute Joe D’Ambrosio.   In 1988, the state botched D’Ambrosio’s trial by violating Brady v. Maryland, 373 U.S. 83 (1963), an error that later came back to bite it in federal habeas review.  D’Ambrosio v. Bagley, 527 F.3d 489 (6th Cir. 2008). Then, after D’Ambrosio was issued a conditional writ of habeas corpus, the state misunderstood the district court’s clear, binary order and attempted to simultaneously comply with both of the two alternatives it was given: retry D’Ambrosio within 180 days or vacate his conviction and release him.   After failing to complete only the prompt-retrial option, the hapless state marched back to district court and, making D’Ambrosio’s argument for him, conceded that it failed to comply with the conditional writ.   Ever since, the state has asserted a variety of confused jurisdictional arguments in both the district court and in this court, and it is now in the position where it may have to let a man it believes to be a murderer go forever free.   Whether D’Ambrosio deserves that windfall I cannot say, although, after more than twenty years of bungling his criminal proceedings, surely the state deserves that penalty.  But this is a case about jurisdiction.   Whatever the equities in D’Ambrosio’s favor, the state of Ohio — by sheer luck and nothing more — managed to do just enough to strip the district court of its power to decide the issue.  Accordingly, I would reverse the district court and dismiss the case.

August 29, 2011 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

A surprising prison echo resulting from mass murder in Norway

Even after seven plus years of blogging about crime and punishment, I still find myself surprised and intrigued by unexpected consequences that can often flow from particular crimes or particular punishments.  Today's example comes from this international story, which is headlined "Norway prison vacancies rise."  The subheading to the piece is titled "Police are so busy concentrating on the Anders Behring Breivik terror case many criminals are escaping going to jail," and here is more:

Politicians usually complain Norwegian prisons are overcrowded, but there are currently plenty of bunks for potential prisoners since the 22 July massacre.  Oslo District Court reports remand hearings are down 40 percent on the same period last year, admitting the Breivik case has affected numbers.  Many cases are shelved temporarily.

“We now have 25 vacant cells out of 392, so we have the capacity to accommodate remand prisoners from police custody,” said prison director Stig Storvik to NRK.

Underlining Oslo Police are still capable of carrying out their tasks with help for their district colleagues, however, Deputy Police Chief Hans Halvorsen says people must understand their “challenging situation”, despite the drop and recent criticism of the force.   “Of course this is a challenging situation for Oslo police.  There is not much doubt about it. We use large resources.  We have approximately 140 people just focusing on investigating the case alone” he said.

Meanwhile, NRK reports police may consider transferring indicted Anders Behring Breivik, to whom women around the world are sending fan mail, from his solitary confinement in Ila prison to special high-security prisons Skien or Ringerike.

Seems like it really should be petty criminals in Oslo, rather than "women around the world," sending Breivik fan mail.

August 29, 2011 in Offense Characteristics, Prisons and prisoners, Sentencing around the world | Permalink | Comments (3) | TrackBack

New US Sentencing Commission reviews of sentencing jurisprudence

Undaunted by earthquakes or hurricanes or the unnatural disasters that are even more common inside the Beltway these days, the US Sentencing Commission this summer has completed and now posted new documents that "present specific decisions by the U.S. Supreme Court and U.S. circuit courts of appeals regarding the federal sentencing guidelines and related sentencing issues."

Specifically, at this link everyone can find a lengthy document with brief summaries of nearly every major Supreme Court ruling on federal sentencing issues over the last 25 years.  And, on this page, everyone can find links to circuit-by-circuit reports on guideline interpretation and post-Booker jurisprudence.

August 29, 2011 in Federal Sentencing Guidelines, Recommended reading, Who Sentences? | Permalink | Comments (0) | TrackBack

August 28, 2011

Notable new reporting on the US military's (mis)use of the death penalty

HXz8c.Sm.91 McClatchy Newspapers has produced a series of new article concerning the modern operation of the death penalty in the US military. Here are links to these pieces:

Here are excerpts from the first and second pieces in this series:

Of the 16 men sentenced to death since the military overhauled its system in 1984, 10 have been taken off death row.  The military's appeals courts have overturned most of the sentences, not because of a change in heart about the death penalty or questions about the men's guilt, but because of mistakes made at every level of the military's judicial system.

The problems included defense attorneys who bungled representation, judges who didn't know how to properly instruct a jury and prosecutors who mishandled evidence.  In all of the cases, the men have been resentenced to life in prison. Eventually, they could be eligible for parole.

Yet by many measures, they're the military's worst of the worst. Convicted of crimes such as serial murder and rape, they're the kinds of criminals that many people would agree the death penalty should be reserved for.  Then why have they been spared?

Critics say the military botched the cases because its judicial system lags behind civilian courts and isn't equipped to handle the complex legal and moral questions that capital cases raise.

Civilian courts have demanded that experienced lawyers be appointed in capital cases and have pushed for a more uniform application of the death penalty.  The military, however, hasn't made any major institutional changes to address such problems in more than 25 years.  At almost every level — from trial to appeals — young, inexperienced lawyers routinely have been appointed to represent capital defendants....

Ten of the 16 men whom the military has sentenced to death in the last 27 years share another common characteristic: They're all minorities. The racial imbalance in the military's death penalty isn't new. As far back as the early 1970s, the military has acknowledged racial bias in its judicial system.  The civilian court systems have similar disparities.

But one recent statistical analysis has found that the problem endures and is in some ways worse than on the civilian side.   A study by a group of law and statistics professors found that minorities in the military were twice as likely to be sentenced to death as their white counterparts, a statistic higher than is known to exist in most civilian court systems.

August 28, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (7) | TrackBack

"Texas' newest seminary is opening inside a state prison"

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

Texas' newest seminary will launch Monday -- inside a Texas prison. It starts with 40 inmates who will be trained at the Texas Department of Criminal Justice's Darrington Unit in Rosharon, about 300 miles southeast of Fort Worth.

Fort Worth's Southwestern Baptist Theological Seminary will play a big role in the seminary, as will the Southern Baptists of Texas Convention and the Heart of Texas Foundation, as co-sponsors of the nondenominational program.

After inmates finish the 125-credit-hour program over four years, they receive bachelor's degrees in biblical studies and are sent to other Texas prisons, where they "minister to their fellow offenders," according to a release.

"The opportunity to provide education and growth for those in a prison unit .. is the opportunity to enable these inmates to discover a significant new way that through study will change life, perspective and hope for hundreds," said Paige Patterson, president of the Fort Worth seminary.

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

Shouldn't we celebrate a reduced federal caseload in western Virginia due to less crime?

The question in the title of this post is prompted by this interesting local piece which is headlined "Less crime also doesn't pay in Western Virginia's federal courts."  The subheading of the piece is "Lighter criminal and civil caseloads in Western Virginia may result in the need for fewer courthouses and less staffing," and here are excerpts:

The number of cases in Western Virginia's federal courts is falling, bucking a national increase and raising the possibility that in a time of tight federal budgets, the region could be headed for vacant judgeships and closed courthouses.

The region's caseload, including criminal prosecutions and civil lawsuits, has dropped every year except one since 2002, when the caseload peaked in the sprawling federal district that covers Virginia west of Charlottesville.  Since 1996, the number of cases filed each year in district court has fallen by a third.  "We're all being asked to do more with less," said U.S. Attorney Tim Heaphy, the district's top federal prosecutor. "We're all braced for what that's actually going to look like," he said.

Crowded federal dockets in metropolitan districts have driven an overall increase in cases in the United States. Since 2005, the number of cases filed in the nation's district courts has climbed every year.  The number of cases filed in 2010 increased more than 25 percent from 15 years earlier.

Glen Conrad, chief judge of the Western District of Virginia, said most rural districts around the country have not shared the growth of their urban counterparts.  But most have at least maintained caseloads, he said. If the caseload here keeps dropping, the district could be barred from hiring a new judge the next time a judgeship comes open, Conrad predicted....

Further into the future, federal courthouses could even be shuttered, as the U.S. District Court in Big Stone Gap was from the 1930s to the 1970s, Conrad said.  Big Stone Gap remains one of the least used of the district's federal courts, along with Danville, Conrad said....

The declining caseload in the Western Virginia district has been offset for probation officers by increased supervision duties resulting from the resentencing and release of people incarcerated on crack cocaine charges, said Phil Williams, who leads the district's federal probation office.

At one point early in the decade, the Western District of Virginia had more crack cocaine cases per capita than anywhere else in the U.S.  That has not been true for years, and the cocaine-sentencing boost for probation officers is short term, Williams said in an email. If the district's caseload doesn't increase, the probation office likely will face cuts, Williams said....

Roanoke Circuit Court figures for the past three years show a similar decline in civil and criminal caseloads.

The decline in crime, the slack economy and federal court rules that some lawyers find daunting may be driving the federal drop. "My guess is that lawyers generally feel unfamiliar with all the federal court rules and thus feel more comfortable in state court," Bill Poff, a Roanoke attorney with decades of federal experience, said in an email....

Heaphy said the number of white-collar criminals pursued by his office has remained stable. But drug and gun cases have fallen, he said. Three elements may be affecting that slowing criminal caseload, Heaphy said.

First, more cases are staying in state court rather than being supplanted by federal charges, Heaphy said. At one time, local law enforcers tried to maneuver criminal cases into federal court, where mandatory sentences tend to be harsher. At the same time, budget cuts at the U.S. Drug Enforcement Administration and Bureau of Alcohol, Tobacco, Firearms and Explosives have limited investigators' reach. "The DEA and ATF task forces that are our bread-and-butter case generators are down people," Heaphy said. Similarly, local police are "pulling all their resources just to keep the streets patrolled," he said. The final factor "is fairly obvious," Heaphy said. "Crime is just down."...

Conrad said federal judges discussed Western Virginia's falling caseload at a conference this summer.  There was agreement that the use of sentencing guidelines, which add a measure of certainty to the outcome of a criminal case, and mediation, which can resolve civil litigation without expensive trials, were reducing the number of jury trials, he said. But there was no consensus about why the district's numbers are falling more than others with similar rural characteristics.

Conrad said the most dramatic effects of the falling caseload, such as courthouse closings, likely are distant.  But as the trend continues, it prompts growing concern, he said.  "We want to be overutilized.  We want to be a place where people feel comfortable bringing disputes," Conrad said.

Especially with the chief federal judge expressing "concern" about the falling federal caseload, I cannot help but channel SC and the tea party when commenting on this piece.  Specifically, I find remarkable andf telling that the falling caseload is being discussed here in dour terms.  Rather than being excited that crime is on the decline and that both civil and criminal litigants and courts seem to be able to do less with more, all the lawyers and government employees seem quite depressed that government here is shrinking rather than continuing to expand as it is doing elsewhere.

August 28, 2011 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack