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:
- Federal district judge finds Equal Protection Clause violated by Ohio's injection processes
- New Ohio lethal injection ruling provides lessons in litigation realities, the rule of law and a law of rules
- Why Smith Equal Protection ruling and execution stay in Ohio is a huge (and national?) new death penalty story
- Ohio's queue for executions now 11 deep and more than a year long
- Ohio decides not to appeal federal district court ruling in Smith halting execution
- In wake of lethal injection ruling and stay, Ohio Governor postpones next execution (for 18 months!?!)
- "Ohio and the Death Penalty"
- Ohio ready to try to get its machinery of death back in operation
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.
"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:
- Might GOP start debating Texas crime and punishment with Rick Perry in the 2012 race?
- Rick Perry's death penalty record already a topic of press coverage inside the Beltway
- "Perry delivers on Texas death penalty"
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:
- "5 prisons to be put on block by state"
- ACLU of Ohio releases new report assailing Governor's plan to sell state prisons
- Robust debate in Ohio over Governor's plan to sell prisons to private company
- Might private prisons actually cost taxpayers more than public prisons?
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.
"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.
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 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.
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.
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.
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.
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?
"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:
August 31, 2011
Two new pieces in Journal of Law & Econ examine efficacy of sex offender registries
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?".
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.
"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!”
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.
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.
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.
"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:
- "Executions Should Be Televised"
- Why shouldn't Georgia lethal injection — and all executions — be recorded on video?
- NYT piece on lethal injection
- Shouldn't all executions now be recorded on video?
- A call for truly public executions?
- The uncut Saddam's execution video and death penalty aesthetics
- "Video of a Lethal Injection Reopens Questions on the Privacy of Executions"
- Are there any compelling arguments against now recording all executions?