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.
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:
- Is Barry Bonds going to have to worry soon about federal sentencing realities?
- Is it clear that Barry Bonds would have a 15-21 months guideline range?
- Barry Bonds convicted of obstruction, jury deadlocked on perjury counts
- Barry Bonds convictions upheld by district judge... next stop sentencing(?)
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.
"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.
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.
"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 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?
"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.
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.
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.
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 28, 2011
Notable new reporting on the US military's (mis)use of the death penalty
- "Many death sentences in U.S. military overturned"
- "Study: Racial disparities taint military's use of death penalty"
- "Military capital cases deserve better defense, critics say"
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.
"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.
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.