September 10, 2011
"'Smart on Crime': How a Shift in Political Attention is Changing Penal Policy in America"
The title of this post is the title of this notable article by a professor of political science, Garrick Percival, which is now available via SSRN. Here is the abstract:
After decades of witnessing increasingly punitive sanctions to combat crime, U.S. penal policy has begun to reverse itself in the 2000s. Policy is trending toward “softer” alternatives that reduce criminal penalties, invest in human capital, and rely less on the prison as the primary mode of punishment. I ask how this unlikely set penal of policy reversals has managed to reach the governing agenda and become successfully adopted when policymakers for the most of the previous decades had rejected softer reform alternatives because of a pervasive fear of being labeled soft on crime.
Guided by theories of agenda setting this research develops a politically-centered explanation, placing emphasis on the emergence of what I call the “smart on crime” frame of American penology and policymaking. As discussed, smart on crime involves a shift in collective attention within two major dimensions of the crime issue. It moves the debate away from an emotionally-based understanding of crime that views punitiveness and the prison as essential crime fighting instruments, to a new understanding that emphasize the failings of the carceral boom on one hand, and on the other hand, the efficacy and moral justness of softer data-driven prison alternatives.
"American Prison Culture in an International Context: An Examination of Prisons in America, The Netherlands, and Israel"
The title of this post is the title of this interesting new article by Professor Lucian Dervan providing a comparative perspective on imprisonment. The piece is available via SSRN, and here is the abstract:
In 2004, British authorities arrested Abu Hamza al-Masri, an Egyptian born cleric sought by the United States for his involvement in instigating terrorist attacks. As authorities prepared to extradite him in July 2010, the European Court of Human Rights issued a stay. According to the court, al-Masri’s claims that maximum-security prisons in the United States violate European human rights laws prohibiting torture and degrading treatment warranted further examination.
Regardless of the eventual resolution of the al-Masri case, the European Court of Human Rights’ inability to summarily dismiss these assertions demonstrates something quite troubling. At a minimum, the court’s actions indicate that a perception has developed in the world that the American penal system has gone astray. But are prisons in the United States that much different from those found in other parts of the world?
In the spring and summer of 2010, I traveled to prisons in the United States, The Netherlands, and Israel to compare the way each country detains its most violent and culpable residents. The results of this research indicate something quite striking about what makes prisons around the world successful and offer a sobering examination of the deficiencies present in many under-funded American institutions.
This article will begin by examining the cultures of four prison facilities: two prisons in America (one federal and one state), a prison in The Netherlands, and a prison in Israel. For each institution, this article will offer a narrative of my observations regarding the prison’s structure and security, living conditions, and programming. In particular, the examination of each prison facility will include discussion of the apparent significant impact of each prison’s culture on the perceived rates of violence, the financial costs of administration, and the achievement of moral obligations regarding the treatment of prisoners.
Through this analysis, this article will first propose that prisons with cultures that create a sense of community within the inmate population benefit from lower rates of violence. Second, the article will contend that lower rates of violence also lead to reduced costs of administration. Finally, this article will argue that regardless of the above-described benefits it is also morally correct to create positive prison environments rather than permit prisons to become warehouses for societal outcasts.
Looking at mass incarceration as a kind of "new epidemic"
A new book published by The New Press brings a kind of "clinical" perspective to the phenomenon of mass incarceration. The book is titled "A Plague of Prisons: The Epidemiology of Mass Incarceration in America," and is written by Ernest Drucker, professor emeritus of family and social medicine at Montefiore Medical Center/Albert Einstein College of Medicine, and adjunct professor of epidemiology at Columbia University’s Mailman School of Public Health. The New Press website for the book is at this link, and the book has its own full website at this link. Here is part of an excerpt from the book's website:
Here are some of the things we know about this new epidemic:
• The population involved is diverse: men and women, adults and children, different social classes....
• The effects of the epidemic extend beyond actual cases -- over 30 million have been affected in the last thirty years.
• Young minority men have been affected most severely: although they make up only 3 percent of the U.S. population, young black and Hispanic men constitute over 30 percent of the cases.
• While this epidemic is nationwide, most cases have occurred in the poorest neighborhoods of America's urban areas -- in some communities, over 90 percent of families have afflicted members.
• Individuals who are afflicted are also socially marginalized and often become incapacitated for life -- unable to find decent work, get proper housing, participate in the political system, or have a normal family life.
• The children of families affected by this new epidemic have lower life expectancy and are six to seven times more likely to acquire it themselves than the children of families not affected.
The new epidemic is mass incarceration -- a plague of prisons.
Mass incarceration? The term seems out of place for America -- a nation premised on individual rights and freedom. It conjures up images of brutal foreign tyrannies and totalitarian despots -- widespread oppression and domination of individuals under regimes of state power built upon fear, terror, and the absence of effective legal protection. When we think of large-scale systems of imprisonment throughout history, we think of great crimes against humanity -- Hitler's network of diabolical concentration camps, or the vast hopelessness of Stalin's archipelago of slave labor prison camps. Stalin's system established a model for mass incarceration whose effects penetrated every corner of Russian society, shaping the experience of millions beyond those in the camps -- most immediately the prisoners' families. More broadly, it created an entire population living under the threat of arrest and arbitrary detention.
This model seems foreign to life in our democratic society -- a product of different times and faraway places. Yet the facts about current-day American incarceration are stark. Today a total of 7.3 million individuals are under the control of the U.S. criminal justice system: 2.3 million prisoners behind bars, 800,000 parolees, and another 4.2 million people on probation. If this population had their own city, it would be the second largest in the country.
"Behind the Death Penalty Cheers"
The title of this post is the headline of this intriguing column authored by James Henson for the Texas Tribune. Here is how it starts:
One of the oddest moments of the GOP presidential primary debate Wednesday night in California occurred when the audience burst into applause in response to moderator Brian Williams’ recap of Gov. Rick Perry’s record of presiding over 234 executions.
Williams had not yet even finished asking his question when the crowd erupted with clapping and even whistles. The effusive audience applause in response to both Williams’ mention of Perry’s record and the governor’s full-throated, guilt-free answer seems to reflect a Republican primary audience that, like the governor, is untroubled by the death penalty, either in principle or in practice.
Results from the University of Texas/Texas Tribune Poll and national polling confirm that one shouldn’t be surprised by the borderline atavistic response from an audience of Republican primary voters. It’s not news or even mildly shocking, of course, that Texas voters support the death penalty in substantial numbers, even in the face of doubts about the fairness of the process. Our polling regularly shows over 75 percent of self-reported registered voters support the death penalty either strongly or somewhat for those convicted of violent crimes. And there isn’t much ambivalence lurking in the distinction in support — the strong support is routinely over 50 percent. The overall levels of support in Texas are 10 to 15 percentage points higher than support for similar items in national polls....
In fact, Democratic identifiers in Texas also support the death penalty, or are ambivalent, in substantial numbers. In the same February 2010 survey, over 60 percent of self-identified Democrats expressed some support for the death penalty — again, a fairly common pattern in Texas, though about half of this support comes from the less enthusiastic “somewhat support” responses. Only 16 percent said they were “strongly opposed” to the death penalty. Compared to national surveys, the Texas numbers for Democratic support are again in the neighborhood of 10 or more points higher than national Democratic approval.
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"
- "Don’t Blame Perry for Texas’s Execution Addiction. He Doesn’t Have Much to Do With It"
- Will the death penalty come up in tonight's big GOP presidential candidate debate?
- "Perry draws applause in defending death penalty, hasn’t struggled over questions of innocence"
Record-long (but way below guideline) prison sentence for crooked Mass politician
As detailed in this Boston Globe article, headlined "Disgraced DiMasi is given 8 years; Judge calls former speaker’s fall from grace a ‘dream corrupted’," a high-profile defendants got a lengthy (but way below guideline) prison term in federal court yesterday. Here are the details:
Former Massachusetts House speaker Salvatore F. DiMasi was sentenced yesterday to eight years in federal prison for his conviction on political corruption charges, the longest federal sentence handed out to an elected official in Massachusetts history, climaxing a years-long scandal that had captivated the state’s political establishment.
DiMasi’s codefendant, Richard McDonough, a well-known State House lobbyist, was sentenced to seven years in prison for taking part in the conspiracy to help a software company win state contracts in exchange for kickbacks.
US District Court Chief Judge Mark L. Wolf called the sentence appropriate, saying he balanced the ages of both men, 66, and consideration for their families, against the fact that they had betrayed the public’s trust by orchestrating the criminal scheme....
Wolf asked that the Federal Bureau of Prisons send DiMasi to Fort Devens, allowing him to remain close to his wife, who is fighting breast cancer. DiMasi must serve two years of probation upon his release from prison and forfeit $65,000, the amount of money he directly received in the scheme. McDonough must also serve two years of probation, forfeit the $250,000 he received, and pay a $50,000 fine.
Both men must report to prison by noon Nov. 16, although the judge is still considering whether they should be allowed to remain free pending an appeal.
Wolf’s sentence fell far below the sentencing guidelines he had calculated on Thursday, which allowed for DiMasi to be sentenced to 19 to 24 years and McDonough to 15 years. But the judge -- indicating from the beginning that he would not go as far as the guidelines allowed -- also said he believes the sentence, which is longer than many issued in comparable cases, could serve as a deterrent to those seeking to sell their public office.
"Corruption has very real victims, generally, and in this case," the judge said. "I find the [sentence] is sufficient, but no longer than necessary, to send the message" against corruption.
Prosecutors had asked that DiMasi serve 12 to 15 years in prison and McDonough 10 years, while defense lawyers say both men should have to serve no more than three years in prison.
I always find notable in cases like this how one might "spin" the sentence imposed. I suspect the defense could complain that this 8-year-term is essentially life sentence for both DiMasi and his ill wife; the prosecution could complain that a sentence so far below the guideline range fails to send a strong enough message against political corruption. (Perhaps valuably, I do not think either spin would make a strong basis for a reasonableness appeal of this sentence to the First Circuit.)
September 9, 2011
Concerns about crowded prisons and Pepper in DOJ annual letter to US Sentencing Commission
A very kind reader sent me a copy of the letter sent by the Justice Department's Criminal Division to the US Sentencing Commission commenting on the operation of the federal sentencing guidelines and other matters. This eight-page letter has a number of interesting facets, but these two passages struck me as especially blog-worthy:
Prisons are essential for public safety. But maximizing public safety can be achieved without maximizing prison spending. A proper balance of outlays must be found that allows, on the one hand, for suffcient numbers of investigative agents, prosecutors and judicial personnel to investigate, apprehend, prosecute and adjudicate those who commit federal crimes, and on the other hand, a sentcncing policy that achieves public safety correctional goals and justice for victims, the community, and the offender. The Department of Justice has been under a general hiring freeze for some time, which means that vacant executive positons of all kinds — including investigators, prosecutors, forensic analysts, and more — cannot be filled. At the same time, the federal prison population - and therefore prison expenditures - have been increasing. In fact, the federal correctional population has jumped by more than 7,000 prisoners this fiscal year, the equivalent of about four prisons worth of inmates.
This is all relevant to federal sentencing, because prison spending to support these population increases has been rising for years and the prison population remains on an upward trajectory. Given the budgetary environment, that trajectory wil lead to a fuiiher imbalance in the deployment of justice resources. While this is a long term problem that requires a long term and systemic solution, there are also immediate concerns. As former Bureau of Prisons Director Harley Lappin testified before the Commission in March, the Bureau of Prisons is currently operating at 35% over rated capacity.... Even more troubling, former Director Lappin testified that the Bureau of Prisons estimates that its inmate population wil continue to grow by about 5,000 prisoners a year for the foreseeable future....
While we firmly believe that imnate rehabilitation and improving the rate of successful prisoner reentry are critical obligations for any correctional system, the Tapia court made clear that the prohibition on selecting a term of imprisomnent based on rehabilitative considerations — a prohibition put in place as part of the overall vision and strcture of sentencing under the SRA that discounts offender characteiistics — must remain a hallmark of federal sentencing post-Booker. At the same time, however, in Pepper, decided earlier in the term, the Court endorsed the notion that post-Booker sentencing must focus as much on the offender, his individual background, and his need for services and rehabilitation as on the offense committed.... This and other post-Booker jurisprudence now place an offender's personal history — including socio-economic status, educational achievement and family and community ties — on equal footing as sentencing factors with the offense committed.
We believe these two lines of thought and doctrine — one that insists that the length of federal imprisomnent terms be based primarily on the offense and criminal history, and one that insists that offender characteristics and rehabilitation be co-equal determinants of all aspects of sentencing — conflict with one another and must be reconciled in order to create a coherent, national system. We believe the post-Booker sentencing regime, which gives sentencing court's an unbounded menu of sentencing principles from which to devise the ultmate sentence, wil continue to lead, if not reformed, to unwarranted disparities in sentencing outcomes. Together with the Commission's study exposing an increase in unwarranted racial and ethnic disparities in post-Booker federal sentencing practice, we have real concerns that current policy is not meeting the long terms goals of the federal criminal justice system, including the goals of fostering trust and confidence in the criminal justice system and eliminating unwarranted disparities in sentencing.
September 9, 2011 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10) | TrackBack
Does Graham create constitutional problems for juve LWOP for murder accomplice?
The question in the title of this post is the one now facing the Arkansas Supreme Court, as detailed in this local article headlined "Teen’s life sentence unconstitutional, lawyer argues." Here is how the piece begins:
A lawyer for an Arkansas teenager serving a life sentence for capital murder argued today before the Arkansas Supreme Court that the sentence was unconstitutional because his client was only 16 at the time of the crime and did not fire the fatal shot. A lawyer for the state told the justices the sentence is consistent with federal and state case law.
The high court heard oral arguments but did not immediately issue a ruling in an appeal by Lemuel Session Whiteside, 19, who was convicted of capital murder and aggravated robbery and sentenced to life in prison without possibility of parole in the January 2009 shooting death of James London Sr., 30, in Little Rock.
Authorities never accused Whiteside of shooting London. Cambrin Sain Barnes admitted to being the gunman and pleaded guilty to first-degree murder and aggravated robbery in exchange for a 40-year sentence. But prosecutors said Whiteside — who declined to plead guilty — gave the murder weapon to Barnes and told him where to find London.
Tom Sullivan, attorney for Whiteside, told the justices today that in the case Graham v. Florida, the U.S. Supreme Court said a sentence of life without parole is too severe for a juvenile for any offense other than homicide. Such a sentence violates the Eighth Amendment protection against cruel and unusual punishment, the court said in that decision.
Sullivan said that as he interprets the decision, Whiteside should not have been sentenced to life without parole because he did not kill London. “In this case the defendant is not the shooter, and there has been no proof of an intent to kill,” he said.
Justice Robert Brown asked Sullivan if he was asking the justices to expand the Graham v. Florida decision. Sullivan said he was only asking them to interpret how the decision should apply to a defendant who is convicted of murder but did not kill anyone. The decision “leaves open this middle ground,” Sullivan said.
"The Geography of the Death Penalty and its Ramifications"
The title of this post is the title of this notable new paper from Professor Robert J. Smith available via SSRN. Here are portions of the abstract:
One hundred and twenty four people were sentenced to death in 2009; the fewest since the United States Supreme Court re-authorized capital punishment in 1976. This is not an aberration. Death sentences have dropped precipitously over the past fifteen years. The distribution of death sentences nationally demonstrates that a fragmented few counties sentence people to death while the vast majority of jurisdictions largely have abandoned capital punishment. There is nothing to suggest that the murders committed in those active death-sentencing counties are more heinous than murders committed in other counties. Nor is there evidence to suggest that the offenders in those counties are more incorrigible than those who commit crimes in other counties....
In Part I, I detail the geography of the death penalty. We traditionally gauge death penalty activity at the state level, but the county-level distribution of death sentences and executions between 2004-2009 is more revealing. Just 10% of counties nationally returned even a single death sentence. Even with the busiest death penalty states, the vast majority of counties did not return any death verdicts. The distribution of death sentences reveals a clustering of sentences around a narrow band of counties: roughly 1% of counties in the United States returned death sentences at a rate of one or more sentences per year. Similarly, less than 1% of counties in the country sentenced anyone to death (at any point since 1976) whom their respective state executed between 2004-2009. After exploring the distribution of both death-sentences and executions separately, I consider those (very few) counties that both sentence people to death regularly and are situated in states that regularly perform executions. This part concludes by briefly considering possible explanations for why the top death-sentencing counties are the top death-sentencing counties.
Part II addresses the doctrinal, litigation, and advocacy ramifications. The first section discusses the doctrinal implications that result from a focus on county-level death sentencing. The section begins by discussing the Eighth Amendment’s command that the death penalty not be imposed arbitrarily. Special attention is paid to the choice between heightened procedural regulation of capital trials (the path chosen by the Court) and outcome-based approaches (the path not taken). The purpose of the procedural regulation approach was the belief that such changes would result in consistently imposed punishment. The skewed geography of the death penalty suggests that it has not. This section next discusses two alternative methods for presenting challenges that seek to limit capital punishment or render its administration more equitable. It begins with the categorical exclusion approach (e.g. death-ineligibility for juveniles) and its limits, and then proposes a data-driven approach to presenting claims of arbitrariness that focus primarily on comparative sentencing within a single county.
In the second section, I discuss how litigants (as well as other interested parties) might take advantage of the clustering of death sentences around a narrow band of counties. Poor trial representation - brought on by over-burdened, under-resourced and under-trained defenders - is a hallmark of capital representation. New models of representation - including trial consulting offices and data-driven remedies to what I refer to as the “fire-hose” problem - are demonstrating the ability to drastically reduce new death sentences (even in places like Harris County, Texas). Given limited resources, interested parties might prioritize recreating these models in the counties with the highest absolute number of death sentences rather than focusing limited resources on state-based litigation campaigns.
The third section details how the geography of the death penalty might influence abolitionist advocacy strategies. Many of the counties that return the most death sentences are in locations where the state-level government is unlikely to repeal the death penalty. Rather than funneling limited resources to statewide efforts or ignoring these locations altogether, this section explores the benefits of focusing advocacy efforts on county-level actors. County-residents are the ones most affected by the decision to sentence someone to death. In many instances, these are not just moral questions, but also public safety questions that impact how counties spend scarce resources to make their residents safe. Also, local residents are able to wield more influence over local prosecutors or county-level government officials than with state-level officials. This is an especially important consideration where the local population contains a higher percentage of minority group members than in the state population generally.
Notable California report on (mis)use of prisoner rehabilitation assessment scores
This recent piece from California, headlined "State auditor calls for end to prisoner rehabilitation test," spotlights the persistent challenges of trying to make rehabilitation work within a prison system. Here are the details:
The state auditor is recommending that California’s corrections system shut down tests that determine what rehabilitation prisoners need, calling the tools unproven and little used.
Since 2006, the California Department of Corrections and Rehabilitation has developed and repeatedly revised the assessments, called Correctional Offender Management Profiling for Alternative Sanctions (COMPAS for short). It is composed of two tests. The first is given to incoming inmates, gauging levels of criminal thinking, violence, substance abuse and educational needs. The other assessment is for prisoners about to go on parole and is different from the first in that it measures housing and employment prospects on the outside.
In a report released yesterday, auditors found numerous shortcomings [PDF] in how prisons have used assessment scores. Rank-and-file officers within the corrections system show “a lack of buy-in on COMPAS” and doubt the tests are useful, the report states. The department often fails to use the scores when deciding where to place inmates, and few inmates even receive the exams
State prison officials acknowledge problems highlighted by the auditor, but strongly disagree with the overall conclusion. The department plans to continue, upgrade and expand the assessments. “We refuse to return to the method of simply placing an offender in the next slot available – regardless of their criminogenic needs,” Corrections Undersecretary Scott Kernan wrote in response to the audit.
The tests represent a major culture shift for California’s prison system, said Lee Seale, internal oversight and research director for the department. Such changes come hard. “Obviously, with over 60,000 staff, you’re going to find pockets of resistance here and there throughout the institutions and parole regions,” Seale said. “We’re not surprised by that.”
California is one of 19 states that assess inmates for both risk of criminal behavior and their criminogenic needs. Risk and need are two sides of the same coin. Prisons long have relied on risk assessments, based in large part on records like rap sheets, to decide where to house inmates. Needs assessments are a more progressive approach, relying on question-and- answer sessions with trained psychologists that are used to calculate how best to rehabilitate prisoners....
Contrary to the auditor’s argument that the state cannot afford the assessments, Seale contends California’s money woes make criminogenic needs assessments critical. “Now is the right time, more than ever, to make sure we’re prioritizing those resources correctly,” he said.
September 8, 2011
"Cost as a Sentencing Factor: A Theoretical Inquiry"
The title of this post is the title of this great-sounding new paper from Professor Chad Flanders available via SSRN. Here is the abstract:
In sentencing offenders, should judges take into account the different costs of possible punishments? In 2010, Missouri gave sentencing judges, in addition to information about the nature and severity of the offense and the criminal history of the offender, the price tag of various punishments: prison cost about $17,000 a year, compared to probation, which is much cheaper (about $7000 per year). Judges were allowed, even encouraged, to base their sentences on how much it each sentence would cost the state. The move was a subject of considerable national and local controversy.
This essay represents the first sustained look at Missouri’s new sentencing reform, and argues against the wisdom of allowing judges to consider costs when sentencing. Although it is too much to say that judges should be categorically prohibited from considering the costs of possible sentences, there are good arguments why cost should be a strongly disfavored category when it comes to criminal sentences. Desert should always be the primary consideration in sentencing for judges, and while other factors may make a difference at the margins, when judges base sentences on extrinsic, rather than intrinsic features of offenses and offenders, they risk creating unjust variations in sentences.
Interesting new information about US marijuana use and its potential benefits
These two notable new stories indicate that marijuana use is growing in the US and that this use might enable some individuals to stop growing:
- From Reuters here, "Marijuana use rising in U.S., national survey shows
- From Time here, "Marijuana Slims? Pot Smoking Linked to Lower Body Weight"
Here is the start of each of these two pieces, respectively:
Marijuana is increasingly becoming the drug of choice among young adults in the United States, while use of methamphetamines is waning, according to a national survey of drug use released on Thursday.
Overall, 8.9 percent of the U.S. population or 22.6 million Americans aged 12 and older used illicit drugs in 2010, up from 8.7 percent in 2009 and 8 percent in 2008, according to the survey by the Substance Abuse and Mental Health Services Administration.
Marijuana use appeared to be fueling the increase, with some 17.4 million Americans -- or 6.9 percent of the population -- saying they used marijuana in 2010, up from 14.4 million or 5.8 percent of the population in 2007.
Gil Kerlikowske, director of the Office of National Drug Control Policy in the United States, said increases are especially prominent in states in which medical marijuana use is legal. "Emerging research reveals potential links between state laws permitting access to smoked medical marijuana and higher rates of marijuana use," Kerlikowske said in a statement.
According to the survey, 21.5 percent of young adults aged 18 to 25 used illicit drugs in 2010, up from 19.6 percent in 2008 to 21.2 percent in 2009. "This increase was also driven in large part by a rise in the rate of current marijuana use among this population," Kerlikowske said.
If cannabis causes the munchies, how is possible that pot smokers are thinner than nonsmokers? A new study published in the American Journal of Epidemiology finds an intriguing connection between marijuana use and body weight, showing that rates of obesity are lower by roughly a third in people who smoke pot at least three times a week, compared with those who don't use marijuana at all.
More of the (interesting?) story behind T.I. getting sent back to federal prison
This AP story, headlined "Report: Feds transferred T.I. over business flap," provides more details on the mistakes made by a high-profile defendant during a high-profile trip to a halfway house:
Grammy-winning rapper T.I. was sent back to federal prison after corrections officials discovered a manager and a TV producer were traveling with him on a luxury bus as he transferred to a halfway house in Georgia, according to documents obtained today by The Associated Press.
The two were not authorized to travel or conduct business with T.I., whose real name is Clifford Harris, during the 375-mile journey from the Arkansas federal prison, the Department of Justice incident report said. It said T.I. indicated he was discussing a new reality series and book with the individuals but said he wasn't being interviewed.
T.I. was making the journey last week after he had been released a month early from a sentence for violating probation, and a VH1 reality show and book deal were announced within hours of his release. Attorney Steve Sadow said the rapper didn't violate prison rules because those deals already were finalized. "There wasn't any business to conduct," he said. "These were just two people riding back with him."
The Bureau of Prisons declined to comment. The performer remains in federal custody.
T.I. made the trip from Arkansas to Atlanta with his wife, Tameka Cottle Harris, manager Brian Sher and producer Cris Abrego, the co-president of 51 Minds Entertainment, a company that specializes in reality TV shows, according to letters provided to the AP....
T.I. had initially served about seven months in prison in 2009 after he was arrested for trying to buy unregistered guns and silencers from undercover federal agents. He was on probation after he was released and ordered not to commit another crime or to illegally possess any controlled substances. He then was arrested in Los Angeles in September 2010 after authorities said he was found with four ecstasy pills.
He was sentenced to 11 months in prison for that violation and had been set for release at the end of September, but he was allowed to transfer to an Atlanta halfway house about a month early. He was returned to federal prison a day later, and his attorneys say they will fight that move.
Second Circuit panel reverses child porn restitution award to "Amy"
The Second Circuit has today issued an important new opinion in the on-going saga concerning whether and how the kids victimized by being featured in illegal child pornography can secure restitution awards from defendants who downloaded these pictures via the internet. The panel opinion in US v. Aumais, No. 10-3160 (2d Cir. Sept. 8, 2011) (available here), gets started this way:
Gerald Aumais (“Aumais”) appeals from an Amended Judgment of Conviction entered on August 3, 2010 in the United States District Court for the Northern District of New York (Sharpe, J.). Aumais pleaded guilty to transporting and possessing child pornography in violation of 18 U.S.C. §§ 2252A(a)(1), and (a)(5)(B). The district court sentenced Aumais to 121 months’ imprisonment and ordered him, pursuant to 18 U.S.C. § 2259, to pay $48,483 in restitution to finance future counseling costs of “Amy” (a pseudonym), one of the victims depicted in the images and videos. Aumais challenges the restitution order on the ground that his possession was not a proximate cause of Amy’s loss. Aumais also argues that the district court committed procedural and substantive error in sentencing him to 121 months’ imprisonment. We conclude that: based on the facts in this case, Aumais’ possession of Amy’s images was not a substantial factor in causing her loss; and that the district court committed no procedural or substantive error in imposing the sentence of imprisonment. Affirmed in part and reversed in part.
And here are the key concluding paragraphs in the court's restitution analysis from the later part of Chief Judge Jacobs' opinion for the panel (with cites omitted and emphasis in original):
The magistrate judge found that “Amy had no direct contact with Aumais nor even knew of his existence.” Amy’s Victim Impact Statement makes no mention of Aumais (or any other possessor of her images for that matter). Moreover, Dr. Silberg’s evaluation of Amy, upon which the doctor’s testimony was based, took place on June 11-12, 2008, July 29, 2008, and November 10, 2008, whereas Aumais was not arrested at the border until November 16, 2008. While Dr. Silberg may describe generally what Amy suffers from knowing that people possess her images, Dr. Silberg cannot speak to the impact on Amy caused by this defendant.... Here, in the absence of evidence linking Aumais’ possession to any loss suffered by Amy, we cannot agree with the magistrate judge’s conclusion that “Aumais’ conduct remains a substantial cause of [Amy’s] harm.”
This opinion does not categorically foreclose payment of restitution to victims of child pornography from a defendant who possesses their pornographic images. We have no basis for rejecting Dr. Silberg’s findings that Amy has suffered greatly and will require counseling well into the future. But where the Victim Impact Statement and the psychological evaluation were drafted before the defendant was even arrested -- or might as well have been -- we hold as a matter of law that the victim’s loss was not proximately caused by a defendant’s possession of the victim’s image.
It will be very interesting to see whether prosecutors or the folks who have been representing "Amy" and other victims in seeking restitutional awards will pursue further review of this ruling. The forcefulness of this ruling (which comes on the heels of a similar pro-defendant ruling from the Ninth Circuit a few months ago) may lead many child porn defendants, and even those outside of the Second Circuit, to resist even more forcefully these kind of restitution claims in district courts. For that reason (and others), those who advocate for restitution awards in these kinds of cases may be especially eager to at least try to have Aumais further reviewed.
Some related recent federal child porn restitution posts:
- Federal sentence for receiving child porn includes forfeiture of home
- Federal judge imposes large restitution punishment for downloading child porn
- Notable report on latest developments in federal restitution awards in child porn downloading cases
- New student note on restitution sentences for child porn downloaders
"Perry draws applause in defending death penalty, hasn’t struggled over questions of innocence"
The title of this post is the headline of this AP report on the one notable sentencing and punishment issue that came up during Wednesday night's GOP debate. As I predicted in this post yesterday morning, the media folks could not resist asking Texas Governor Rick Perry about his state's execution record, and here is how the telling sequence unfolded:
The audience first applauded when NBC News anchor Brian Williams cited the number of executions in Texas. Perry says he believes that such a response reflects how much Americans support capital punishment for particularly heinous crimes....
Perry [assertively] defend[ed] the death penalty in Texas and [said] he’s never struggled with whether any of the inmates executed during his time as governor might have been innocent. When Perry defended capital punishment, he drew strong applause from the scores of people in the audience at the Republican debate Wednesday night at the Ronald Reagan Presidential Library.
As of today, 234 people have been executed in the 10-plus years that Perry has served as governor of Texas. That’s the highest number of any American governor.
I am not at all surprised, though I am definitely disappointed, that Brian Williams asked a death penalty question that was both weak and readily enabled Gov. Perry to provide a standard-issue pro-death penalty response. I am also not surprised that, unlike former Texas Gov George W. Bush who talking in 2000 about favoring the death penalty because he thought it saved lives, current Texas Gov Perry instead stressed retributive justice. And though Brian Williams seemed surprised that his mention of the number of executions in Texas under Perry's watch drew applause, anyone with a sophisticated understanding of the politics of this issue should not have been.
It will now be interesting to see if anyone else in the "lamestream" media tries to step-up their game on this issue. Much harder questions for Gov Perry on this issue would be easy to imagine: e.g.,
- "Why do you think a state like Massachusetts has a much lower murder rate than Texas even though it lacks the death penalty while Texas executes dozens of persons each year?";
- "Do you think the federal government should be actively involved in seeking death sentences for the most heinous murders committed in states without capital punishment?";
- "Do you agree with George W. Bush's statement in his 2005 State of the Union Address that 'we must make doubly sure no person is held to account for a crime he or she did not commit' and thus we should have the federal government involved in "fund[ing] special training for defense counsel in capital cases, because people on trial for their lives must have competent lawyers by their side"?
Asking important and challenging question about the death penalty (not only to Gov Perry, but also to all the other GOP candidates) is not that difficult. But, there is probably no sound reason to expect or hope that the traditional media will soon do any better on this front.
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"
- "Don’t Blame Perry for Texas’s Execution Addiction. He Doesn’t Have Much to Do With It"
- Will the death penalty come up in tonight's big GOP presidential candidate debate?
Might prison-friendly cell phones be a wiser response to contraband phones smuggled behind bars?
The question in the title of this post is prompted by this new item from the Washington Post, which is headlined "Illegal cellphone use by federal prisoners on the rise." Here is the back-story:
The number of cellphones smuggled into federal prisons has more than tripled in the past three years, posing a growing security risk, according to a new report. Federal law prohibits the use of cellphones by federal inmates, but the Federal Bureau of Prisons seized 8,656 cellphones from inmates in 2010, up from 1,774 in 2008, according to the report by the Government Accountability Office. More than three-quarters of the phones seized were from minimum-security prisons....
The growing use of cellphones makes it harder for prison officials to track calls made by inmates — in some cases allowing them to continue committing crimes, GAO said. In one case, a federal inmate used a contraband cellphone behind bars to operate an identity-theft ring that rang up more than $254,000 worth of fraudulent credit card charges. The inmate is now serving an additional 14 years in prison.
Prison officials are using X-ray machines and metal detectors to screen visitors and catch cellphones and other contraband — but some still slip through. In hopes of stopping the smuggling, BOP is testing new technologies — including hand-held cellphone tracking devices — to detect mobile phones. But the agency hasn’t established a way to determine whether the tests are working, GAO said.
Contraband cellphones are also common in state prisons: The GAO found that California prison officials seized 10,700 cellphones from inmates in 2010 — up considerably from about 900 in 2007. The Maryland state prison system confiscated 1,128 phones in 2010, up from 741 in 2007.
Prison officials cited in the report said inmates are also seeking out cellphones to avoid paying local and long-distance telephone rates on prison-operated phones. Most federal inmates are allowed to make 15-minute calls to family and friends, but the privilege is revoked if prison officials suspect an inmate is using call time inappropriately.
The BOP charges six cents per minute for local calls and 23 cents per minute for long distance. Revenues from the calls totaled $74 million in 2010 and are used to pay for prison amenities, including psychology, reading and arts programs and recreational activities, GAO said. Though BOP’s per-minute call rates are lower than military prisons and most state facilities, GAO said that lowering the rates might compel inmates to stop seeking out contraband cellphones.
The full GAO report on this issue, which has the thrilling title of " Improved Evaluations and Increased Coordination Could Improve Cell Phone Detection," can be accessed in full at this link. Among interesting parts of the report is this account of the current federal effort to combat this cell phone problem via a new federal criminal law:
In August 2010, the Cell Phone Contraband Act of 2010 was passed and amended 18 U.S.C. § 1791 to prohibit an inmate of a prison from possessing, obtaining, or attempting to obtain a cell phone. The Cell Phone Contraband Act also provided for punishing such possession with a fine or imprisonment for not more than 1 year, or both. BOP stated that cell phones are considered hazardous tools, as defined by BOP policy as tools most likely to be used in an escape attempt or to serve as weapons capable of doing serious bodily harm to others; or those hazardous to institutional security or personal safety. According to officials in BOP’s Correctional Programs Division, when an inmate is caught with a cell phone, an incident report is filed and the inmate is subject to BOP’s disciplinary process, which involves an administrative hearing. The inmate ultimately could face a range of sanctions from transfer to a higher-security institution to loss of “good time” or other privileges. BOP may refer the case to a law enforcement agency with criminal investigative authority for investigation, and/or to the local U.S. Attorney’s Office, which maintains discretion for prosecution.
Though I fully understand the problems that contraband cell phones can pose in prisons, I do not understand why anyone would be confident that this new federal criminal law would be likely to be effective at addressing these problems (or would even ever get seriously enforced by federal prosecutors).
As the title of my post hints, I think trying to provide inmates with controlled and closely monitored access to a prison-friendly cell phone may be a much more effective way to deal with a problem that seem likely to get even more profound if and when smart-phones and tablets and other small electronics become even cheaper and easier to pass to inmates who may just want no more than a cheap and easy way to keep up with the outside world.
Eleventh Circuit upholds LWOP for 17-year-old murderer who got pre-Roper death sentence
As detailed in this AP report, "federal appeals court on Wednesday held that juveniles convicted of murder can be sentenced to life in prison without parole." Here are more of the details of the ruling:
The decision came in the case against Kenneth Loggins, who was convicted in Alabama of killing a hitchhiker in 1994 and originally sentenced to die. He was 17 at the time of the killing, so his punishment was reduced to life without parole because the Supreme Court banned such executions in 2005.
His attorneys had urged the three-judge panel to broaden a 2010 Supreme Court by including murders as an offense that can't carry a life sentence. That 5-4 ruling held that juveniles cannot be sentenced to life in prison without parole if they haven't killed anyone, and ordered the courts to allow them a "meaningful opportunity to obtain release."...
The decision, written by Circuit Judge Ed Carnes, said "there's nothing in law or logic" to support the argument that a state shouldn't be allowed to impose the next most severe punishment if a death penalty sentence is banned. The 11th Circuit has jurisdiction over federal cases in Georgia, Alabama and Florida, but lawyers in other areas will likely use the opinion to back up their own arguments.
Carnes had been the head of Alabama's capital punishment unit before he joined the court in 1992. He also wrote that the state shouldn't be blocked from imposing the prison sentence because it "lacked the clairvoyance to know that the Supreme Court would do an about-face and rule out death sentences for seventeen-year-old murderers."
In the decision, he said only a few jurisdictions have repealed laws permitting life without parole sentences for homicides committed by juveniles, and that the national consensus seems to be in favor of keeping those laws on the books. "The long-term national trend is not away from life without parole sentences for homicides committed by juveniles but toward them," he said.
The ruling comes in a case involving the gruesome murder of Vickie Deblieux, who was picked up by Loggins and three other teens and taken to a secluded rural area as she was traveling to her mother's home in Louisiana. One of the men hit Deblieux in the head with a beer bottle and then tackled her when she tried to run away, and all four savagely kicked her, the court said. When they realized she was still alive after the vicious beating, Loggins stood on her throat until she died, the ruling said. Loggins and two others later mutilated the body by cutting off her fingers and thumbs and removing part of a lung. They were arrested after one of the teens was reported to have been showing one of the victim's severed fingers to friends.
The three others -- who were 19, 17 and 16 at the time of the killing -- were also convicted of the slaying and sentenced to either death or life in prison.
The unanimous panel opinion in Loggins v. Thomas, No. 09-13267 (11th Cir. Sept. 7, 2011) (available here), runs 61 pages and effectively covers lots of post-Roper and post-Graham ground.
I suspect the Supreme Court will eventually take up the issue of LWOP sentences for very young murderers. But, for many reasons, the case of a 17-year-old murderer involved in a brutal thrill kill is surely not the kind of case that advocates against juve LWOP should want to be getting a lot of continued attention.
"Ex Ante Fairness in Criminal Law and Procedure"
The title of this post is the title of this new paper from Professor Vincent Chiao available via SSRN. The piece discusses in interesting ways both death penalty and federal sentencing outcomes. Here is the abstract:
In Furman v. Georgia, the United States Supreme Court announced that it would not tolerate a capital sentencing regime that imposed death sentences in a seriously arbitrary fashion. The question I ask in this paper is whether we should in fact object to arbitrariness in punishment. The answer I propose is that under plausibly adverse conditions, we might not object to arbitrary penal outcomes, because under those conditions a fair distribution of punishment would be one equalizes chances across a class of similarly situated criminals. In particular, fairness may require no more than a rough equalization of ex ante chances under conditions of resource scarcity, an inability to reliably rank claims by comparative desert, and a pressing need for punishment to be imposed. I call this an ex ante theory of fairness.
The central virtue of ex ante fairness is that it is capable of reconciling parsimony in punishment with equity in its distribution, even when claims about who deserves what are deeply contested. Adopting an ex ante standard of fairness means that a concern for fair treatment of the guilty need not blind us to the realities of the severe resource constraints faced by American criminal justice, and vice versa.
After laying out the argument for ex ante fairness in general terms, I proceed to show how several prominent features of American criminal law and procedure -- the Supreme Court’s capital jurisprudence, prosecutorial discretion, non-capital sentencing post-Booker, and “strict” criminal liability -- all exhibit an implicit commitment to an equalization of chances rather than of outcomes.
September 7, 2011
Ohio Governor Kasich grants clemency to help mom who fraudulently registered school kids
As detailed in this local story, "Gov. John Kasich today gave a 'second chance' to an Akron mom jailed for fraudulently switching her children to a neighboring school district where they didn’t live." Here is more:
Kasich approved gubernatorial clemency for Kelley Williams-Bolar, reducing her felony conviction to a first-degree misdemeanor. The clemency was approved despite a unanimous negative recommendation from Ohio Parole Board, which decided she was "wholly undeserving candidate.”
In a statement, Kasich said, “When I first heard about this situation, it seemed to me that the penalty was excessive for the offense. In addition, the penalty could exclude her from certain economic opportunities for the rest of her life. So, today I’ve reduced those felony convictions to what I think are the more appropriate, first degree misdemeanors. No one should interpret this as a pass — it’s a second chance,” said Kasich.
The commutation has strings attached: Wiliams-Bolar must report to the Adult Probation Department, pay a $20-per-month fee, and abide by the department’s regulations; refrain from “ offensive conduct of every nature and obey all laws”; serve 10 days in the Summit County Jail, with credit for one day served; complete 80 hours community service; do a mentorship program with the NAACP or her church; maintain permanent full-time employment and/or attend school; not consume illegal drugs or alcohol; submit to “random and frequent urinalysis testing,” and pay the cost of prosecution....
Williams-Bolar, 41, spent nine days in jail early this year after being convicted of falsifying records by using her father's home address to enroll her daughters, Kayla and Jada, in Copley-Fairlawn schools. In fact, she and her daughters, now 17 and 12, respectively, live 2 miles away in the Akron city school district.
She said she wanted clemency so her record could be wiped clean, allowing her to pursue her goal of becoming a teacher of special-needs students. She could have trouble getting a teaching certificate with felonies on her record. The Parole Board last week issued a sharply worded decision disputing all of Williams-Bolar’s clemency arguments, calling her deceitful, and suggesting she faced problems no worse than "any other working parent."
This official press release provides all the details of Gov. Kasich's clemency decision in this high-profile case.
"Padilla v. Kentucky and the Evolving Right to Deportation Counsel: Watershed or Work-in-Progress?"
The title of this post is the title of this new article by Professor Daniel Kanstroom, which is now available via SSRN. Here is the abstract:
Though widely heralded by immigration and human rights lawyers as a “landmark,” possible “watershed,” and even “Gideon decision” for immigrants, Padilla v. Kentucky is perhaps better understood as a Rorschach test, than as a clear constitutional precedent. It is surely a very interesting and important U.S. Supreme Court case in the (rapidly converging) fields of immigration and criminal law in which the Court struggles with the functional relationship between ostensibly “civil” deportation proceedings and criminal convictions. This is a gratifying development, for reasons not only of justice, fairness, proportionality, and basic human decency, but also (perhaps) of doctrinal consistency. The Court’s choice to rely upon the Sixth Amendment is understandable and in many respects salutary. However, this choice is also in tension with the civil/criminal distinction, and it raises complex questions about the process that might be due deportees both in criminal courts and immigration proceedings.
Will the death penalty come up in tonight's big GOP presidential candidate debate?
This new piece at Politico, headlined "Debate presents crucial GOP test," provides a viewer's guide to tonight's big GOP presidential candidate debate. Here is how the piece sets up a list of issues to watch:
For the 2012 Republican hopefuls, Wednesday night is the first Fall Classic. Eight candidates are slated to take the stage at the Ronald Reagan Presidential Library in Simi Valley, Calif., for the POLITICO/NBC News debate — the first face-off as the campaign kicks into high gear.
It’s also the first debate that will include Texas Gov. Rick Perry, the new front-runner who has shaken up the slow-forming presidential contest and shifted the landscape for Mitt Romney, who’d been sitting atop the field for months.
As regular readers know, Gov. Perry's enterence into the Prez race has prompted the political media and some others to start giving more attention to death penalty issues. For yet another example, here is a notable new piece at The Atlantic under these headings: "Texas Toast: Rick Perry's Death Penalty Calendar; The governor has the authority to stay three pending executions so that the courts can be sure of the prisoners' guilt. But will he?"
I suspect that few (if any) of Perry's rivals think they can score major points by attacking his death penalty record, but I also suspect that media persons in charge of developing questions for tonight's GOP debate may not be able to resist bringing up the topic in some way. And, as highlighted by this recently-posted piece by Paul Giannelli available via SSRN, a shrewd way to raise the issue might be through questions about Perry's commitment to transparency in government and about his faith in (junk?) science. This piece is titled "The Execution of Cameron Todd Willingham: Junk Science, an Innocent Man, and the Politics of Death," and here is its abstract:
Cameron Todd Willingham was tried and executed for the arson deaths of his three little girls. The expert testimony offered against him to establish arson was junk science. The case has since become infamous, the subject of an award-winning New Yorker article, numerous newspaper accounts, and several television shows. It also became enmeshed in the death penalty debate and the reelection of Texas Governor Rick Perry, who refused to grant a stay of execution after a noted arson expert submitted a report debunking the “science” offered at Willingham’s trial. The governor has since attempted to derail an investigation by the Texas Forensic Science Commission into the arson evidence presented at Willingham’s trial.
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"
- "Don’t Blame Perry for Texas’s Execution Addiction. He Doesn’t Have Much to Do With It"
Newest federal sentencing data run from US Sentencing Commission now available
The US Sentencing Commission has some fresh new federal sentencing data just up on its website. The USSC's latest data report, which can be accessed here, is described this way:
Third Quarter FY11 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the third quarter of fiscal year 2011. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published September 6, 2011)
The new data largely show the continued trend of a very slow migration away from guideline ranges, with federal prosecutors, not federal judges, continuing to be the primary driving force behind below-range sentences. Indeed, the latest quarter of data reveal a record high percent of government-sponsored below-guideline sentences (27.7%), coupled with a relatively low percentage of judge-initiated below-guideline sentences (16.9%) .
The changes in the latest quarter of data could merely reflect changes in types of cases sentenced: e.g., the processing of relatively more immigration and non-crack drug cases will likely always drive up the relative percentage of government-sponsored below-guideline sentences because fast-track and cooperation departures are much more common that judge-initiated variance in those types of cases. Nevertheless, there is still an notable patter reflected in all of the last three quarters of data: government-sponsored below-guideline sentences increased roughly 10% over this period, while judge-initiated below-guideline sentences have decreased roughly 10% over this same period.
Effective coverage of California's (unique?) sentencing and correction realities
The Los Angeles Times has recently published two notable lengthy article discussing some of California's most notable sentencing and corrections policies. Here are links along with the headlines and subheadings of these pieces:
"After 17 years, three-strikes law is still hotly debated; Supporters of the tough sentencing rules say the law applies to a lifetime of crime, while opponents say tough punishments often are out of proportion to the underlying crimes."
- "Indefinite solitary confinement persists in California prisons; Long abandoned by many states, the practice is a last resort for California authorities struggling to thwart gang activity and extract information from the most hardened members. Critics say it amounts to torture."
These pieces have me thinking and wondering whether folks interested in a more progressive and humane modern criminal justice in California and nationwide ought to be more committed to and invested in three-strikes sentencing reform or solitary-confinement corrections reform.
Do readers California or elsewhere have strong opinions as to which "problem" is more deserving of advocacy attention and/or more politically viable for real and lasting legal reforms?
More than a decade later, has Justice Breyer finally accepted Apprendi?
The question in the title of this post is prompted by the latest great Sidebar piece in the New York Times by Adam Liptak. The piece is headlined "When Perpetual Dissent Removes the Blindfold," and this portion of the piece prompts the question I pose here:
Once an issue is decided, it is the law, and a justice on the losing side the first time around is obligated to follow the decision except in extraordinary circumstances. Yet the opposite approach is common. Whether as a matter of principle, pique or personal privilege, justices often assume that an initial dissent permits them to stick to their positions indefinitely, or at least for a long time.
In 2002 [in Harris], for instance, Justice Stephen G. Breyer acknowledged that the logic of a decision from which he had dissented two years before, Apprendi v. New Jersey, required juries, not judges, to determine the facts supporting some mandatory sentences. But, Justice Breyer wrote, “I cannot yet accept” the earlier decision.
By last year, Justice Breyer’s position seemed to be softening. “Well, at some point I guess I have to accept Apprendi, because it’s the law and has been for some time,” he said at an argument [in O'Brien].
On Sept. 26, the justices will decide which of the thousands of appeals that have piled up over the summer are worth their time. Among them is yet another case on the issue Justice Breyer was discussing.
It involves Jennifer Lynn Krieger, who pleaded guilty to giving a pain-medicine skin patch to a friend. The friend, Jennifer Ann Curry of West Frankfort, Ill., died after chewing the patch and taking an assortment of other drugs. The average sentence for a first-time offender who admits to distributing drugs like the one in the patch is seven months. The mandatory minimum sentence when “death results,” though, is 20 years.
Ms. Krieger was not charged with causing her friend’s death. She denied doing so, and no jury ever addressed that question. But Judge J. Phil Gilbert of the Federal District Court in Benton, Ill., looked at the evidence on this point in connection with sentencing Ms. Krieger and found it more likely than not that Ms. Curry’s death had been caused by the patch.
Judge Gilbert went on to say that he would have ruled differently had the government been required to prove beyond a reasonable doubt that the patch had caused Ms. Curry’s death. Reasonable doubt is, of course, the standard that juries are instructed to use in criminal trials.
Judge Gilbert did not seem happy about where all of this left him. He said he was required to impose the 20-year sentence even though it was “unduly harsh.”
“One cannot escape the conclusion that Krieger, while convicted of distribution” of drugs, he wrote, “is being sentenced for homicide.”
An appeals court upheld the decision even as it noted that the law in this area hangs by a “precariously thin” thread, partly because “Justice Breyer’s dedication to his position” in the 2002 case “may be waning.”
I have previously noted the remarkable Kreiger case in this post, and I would not be at all surprised if the Supreme Court takes up the case. And yet, as they did last year in the O'Brien case, the Justices could (and very well might) effectively dodge direct consideration of Apprendi and Harris and Blakely constitutional issues by ruling for the defendant on statutory interpretation grounds.
- A Harris test case?: Seventh Circuit affirms extraordinary sentencing factor enhancement
- Might the Harris limit on Apprendi be at risk with O'Brien cert grant?
- SCOTUS in O'Brien preserves (for now) McMillan precedent (to Justice Stevens' chagrin)
"First Thoughts About 'Second Look' and Other Sentence Reduction Provisions of the Model Penal Code: Sentencing"
The title of this post is the title of this great new piece authored by Cecelia Klingele and Margaret Colgate Love, which is available via SSRN. Here is the abstract:
The financial cost of mass incarceration has prompted states to pass legislation providing for early release of prisoners. Although early release laws are frequently in tension with principles underlying sentencing systems, most have been passed without any discussion of how they might be justified in theory. This lack of explicit theoretical foundation leaves the new laws vulnerable to criticism.
By contrast, the American Law Institute's ongoing revision of the Model Penal Code: Sentencing has resulted in the development of three model sentence reduction provisions, each providing a means of reducing an already-imposed sentence based upon a distinctive theoretical justification. This Article discusses each provision and argues that by confronting many of the difficult structural and theoretical questions underlying the practice of early release, the Model Penal Code's sentence reduction proposals provide a framework for resolving normative concerns when designing ways to mitigate the severity of already-imposed sentences.
September 6, 2011
Should we praise or assail those states leading the pack on "Executions Per Death Sentence"?
The question in the title of this post is inspired by this new item at the Death Penalty Information Center:
DPIC has updated its Executions Per Death Sentence page to reflect data through 2010. This page lists states in order of the percentage of death sentences resulting in an execution since the death penalty was reinstated in 1976. If every death sentence resulted in an execution, the state would be at 100%, or a rate of 1.00. Using this ratio of executions per death sentence, the first five states are Virginia (.725), Texas (.498), Utah (.368), Missouri (.347), and Delaware (.311).
Of those states that have carried out at least one execution, the five states with the lowest rate of execution are Pennsylvania (.008), California (.015), Idaho (.025), Oregon (.028), and Tennessee (.035). Four states with the death penalty during this time period had no executions: Kansas, New Hampshire, New Jersey, and New York. The latter two have abandoned the death penalty. Nationally, about 15% of death sentences have resulted in an execution (a rate of .150). Another measure of state execution rates is executions per capita (population). Under this standard, Oklahoma and Texas are the leading states.
I am grateful to the DPIC for this notable new statistic although I am a bit unsure just how they "count" here those defendants who get sentenced to death two or three or four times without or before getting executed. (I guess given Ohio's botched execution efforts in the Broom case a few years ago, I should also wonder about how to "count" a defendant who is sentenced to death once, but executed twice.)
To provide my answer to the question in the title of this post, I am strongly inclined to praise those states leading the pack on executions per death sentence on honesty, efficiency and consistency grounds. Arguably, only in Virginia can one say that a death sentence is an honest sentence, as that is the only state in which more than half of all death sentences actually have resulted in an execution. Moreover, as all informed readers know, all death sentences are very costly in economic and human terms, but it is difficult to find many benefits in death sentences imposed but not carried out. Finally, there is greater risks of post-sentencing disparity and discrimination if only some small (and not randomly selected) percentage of those sentenced to death are actually execution.
In short, I am inclined to state that responsible criminal justice officials and informed citizens in Virginia, Texas, Utah, Missouri, and Delaware should be generally pleased with where they appear on this list, while the same folks in Pennsylvania, California, Idaho, Oregon, and Tennessee should find this new DPIC data quite troubling. Yet I have a feeling that some readers will have a different perspective on this provocative issue.
"The Unconstitutionality of State Regulation of Immigration through Criminal Law"
The title of this post is the title of this timely article due to appear in the Duke Law Journal, which is authored by Professors Jack Chin and Marc Miller and now has a revised version posted on SSRN. Here is the abstract:
The “mirror image” theory of cooperative state enforcement of federal immigration law is a phenomenon, one of the most wildly successful legal movements and ideas in decades. The mirror-image theory proposes that states can enact and enforce criminal immigration laws based on federal statutes. The theory that it is unobjectionable for a state to carry out federal policy is the basis of Arizona’s SB1070, similar immigration laws already in force in seven states, and copycat bills pending in dozens more. The mirror-image theory has succeeded not only in legislatures, but also as an idea in the larger political culture: it has been embraced by dozens of U.S. Senators and Representatives, by policy groups, private citizens, and commentators including George Will, Sarah Palin, and the editors of the New York Post and Washington Times.
The mirror image theory is indeed appealing. But it is also fundamentally flawed. This article, the first to subject the mirror image theory to sustained scholarly scrutiny, demonstrates that the mirror image theory fails to identify a legitimate source of state power to legislate on immigration matters.
No one denies that Congress and the Federal executive have exclusive authority over the substance and procedure of admission, exclusion and removal of non-citizens, documented and undocumented. To the extent there has ever been any question, this proposition was firmly established by a pair of Supreme Court decisions from 1876. The mirror image theory does not challenge this deep-rooted idea head-on, but instead proposes that state legislative authority over immigration flows from cases and provisions of the Immigration and Nationality Act (INA) authorizing states to assist in the enforcement of federal immigration law. However, those authorities contemplated state assistance with enforcement only through arrests. Arrest authority does not imply the power to legislate or prosecute. To the contrary, other provisions of the INA make clear that federal agencies have exclusive power to make prosecutorial and administrative decisions after arrest, and to create supplementary regulations.
The mirror image theory rests on the erroneous premise that Congress has implicitly authorized state enforcement of federal immigration law. This article argues that state enforcement would be unconstitutional even if it were explicitly authorized by Congress. First, the federal immigration power is exclusive and non-delegable. Second, criminal prosecution and immigration enforcement is an executive power which Congress cannot remove from the President and share with non-Executive branch officials. Finally, the Supreme Court has held that states cannot prosecute crimes which affect only the sovereign interests of the United States. Accordingly, state immigration prosecutions are irremediably unconstitutional.
"OSU book thief sentenced to probation and restitution"
Because this new piece from the Columbus Dispatch, which has the same headline as this post, strikes very "close to home," I am not going to comment on the substance of this notable story of crime and punishment. But, especially because I am pretty sure I never met the now-sentenced former-OSU-law student, I am interested in reader reactions:
A former Ohio State University student avoided prison today but likely has forfeited his future as a lawyer for stealing books from the Moritz College of Law.
In a deal that allowed him to escape jail time, Christopher B. Valdes, 24, formerly of the University District but now living with his mother in Florida, was placed on five years of probation and ordered to pay $34,619.88 in restitution for books he sold online. As of this morning, Valdes has paid back $19,450.
Valdes also agreed that he “will not have or pursue employment or education in the field of law,” according to the details of his guilty plea in Franklin County Common Pleas Court.
Assistant Prosecutor John Litle said the ban on law school and practice is in place only for the five years of probation. But Valdes would have to pass character and fitness requirements to become a lawyer. “As a practical matter ... it’s unlikely that he can do that” because of the felony conviction, Litle said.
Valdes had been indicted on a fourth-degree felony count of theft that could have landed him in prison for up to 18 months. He pleaded guilty in June to a lesser fifth-degree felony punishable by up to a year in prison.
Valdes, who is no longer a student at Ohio State, was accused by campus police of stealing more than 200 books between November 2009 and last October after advertising them for sale online. Officers learned of the thefts in August 2010, when the university received an e-mail from a Brazilian lawyer who had bought a volume online and found a crossed-out OSU ink stamp on its inside front cover, according to court documents.
A check confirmed that the title had vanished from the shelves. Valdes was arrested after police set up a sting involving a hidden camera and a marked book.
September 6, 2011 in Collateral consequences, Criminal Sentences Alternatives, New USSC crack guidelines and report, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (2) | TrackBack
First big hearing on application of NC Racial Justice Act this week in Cumberland County
As detailed in this local article, which is headlined "Tuesday hearing in Fayetteville case is first under Racial Justice Act," anyone and everyone concerned about the intersection of race and the death penalty should this week keep an eye on a courtroom in Cumberland County, North Carolina. Here is why:
Marcus Reymond Robinson killed a teen in a robbery in 1991 and was sentenced to death in 1994. Still on death row 17 years after his conviction, Robinson is scheduled today to be the first condemned inmate in North Carolina to present statistical evidence of racism per the new Racial Justice Act to convert his sentence to life without parole.
"It's an historical hearing," said Ken Rose, senior staff attorney at the N.C. Center for Death Penalty Litigation. "This hearing will be about the prosecutors in Cumberland County, the prosecutors in the judicial division that Cumberland County is a part , and the prosecutors across the state. And it will be about their use of strikes in a disproportionate way to exclude African-American jurors from service."
The Racial Justice Act, enacted two years ago, gives death row inmates the opportunity to prove that their death sentences are the product of racism in the criminal justice system. Robinson is black. His victim, 17-year-old Erik Tornblom, was white.
According to the record, Robinson and another man conspired to rob Tornblom. They forced Tornblom at gunpoint to drive them to a side street. Robinson shot him in the face, and then Robinson and the other man split $27 from his wallet and took his car. The other man, Roderick Williams, is serving life in prison.
Robinson's lawyers have statistics that they say proves there is racism in the system. They say that in cases with white victims, the defendants, regardless of race, are more likely to be sentenced to death than in cases in which none of the victims were white. The law allows statistical trends to serve as proof of racism in the system.
In court papers, prosecutors deny that racism had anything to do with Robinson's death sentence. Robinson's motion makes no allegation of racism in his case, wrote Assistant District Attorney Cal Colyer in a motion filed Aug. 16, and provides no evidence of it. Colyer argued that Robinson therefore is not entitled to a hearing to present evidence of racism....
Statewide, 151 out of North Carolina's 158 death row inmates have Racial Justice Act claims pending.
Some related prior posts on the North Carolina Racial Justice Act:
- Robust legislative debate over NC Racial Justice Act
- NC Racial Justice Act going to governor's desk
- NC Gov signs new racial justice act concerning capital prosecutions
- Will NC's new Racial Justice Act effectively kill the state's death penalty?
- New research suggests race of victim impacts NC death penalty administration
- NC defender officer urging that racial bias claims be brought in every capital case
- NC prosecutors bring complaints about state's Racial Justice Act to court
- State judge refuses to overturn Racial Justice Act in North Carolina
- Upcoming MSU symposium to examine North Carolina Racial Justice Act
- Talk of profound changes to North Carolina's potent Racial Justice Act
- Pastor makes interesting pitch for preserving Racial Justice Act in North Carolina
"Nation's Jails Struggle With Mentally Ill Prisoners"
The title of this post is the headline of this recent NPR "cover story" story from All Things Considered, which get set-up on the NPR website this way:
Three hundred and fifty thousand: That's a conservative estimate for the number of offenders with mental illness confined in America's prisons and jails.
More Americans receive mental health treatment in prisons and jails than in hospitals or treatment centers. In fact, the three largest inpatient psychiatric facilities in the country are jails: Los Angeles County Jail, Rikers Island Jail in New York City and Cook County Jail in Illinois.
"We have a criminal justice system which has a very clear purpose: You get arrested. We want justice. We try you, and justice hopefully prevails. It was never built to handle people that were very, very ill, at least with mental illness," Judge Steve Leifman tells Laura Sullivan, guest host of weekends on All Things Considered.
If the money will benefit prisoners, is there virtue in Arizona's new inmate visitation fee?
The question in the title of this post is prompted by this fascinating recent story, headlined "Inmate Visits Now Carry Added Cost in Arizona," from the New York Times. Here are the highlights:
For the Arizona Department of Corrections, crime has finally started to pay. New legislation allows the department to impose a $25 fee on adults who wish to visit inmates at any of the 15 prison complexes that house state prisoners. The one-time “background check fee” for visitors, believed to be the first of its kind in the nation, has angered prisoner advocacy groups and family members of inmates, who in many cases already shoulder the expense of traveling long distances to the remote areas where many prisons are located.
David C. Fathi, director of the National Prison Project of the American Civil Liberties Union, called the fee “mind-boggling” and said that while it was ostensibly intended to help the state — the money will be used to repair and maintain the prisons — it could ultimately have a negative effect on public safety. “We know that one of the best things you can do if you want people to go straight and lead a law-abiding life when they get out of prison is to continue family contact while they’re in prison,” he said. “Talk about penny-wise and pound-foolish.”...
[S]everal dozen family members of inmates who complained to Middle Ground Prison Reform, a group based in Tempe, about the fee. In a lawsuit filed last month against the Corrections Department, Middle Ground said the fee was simply a pretext for raising money “for general public purposes” and as such was unconstitutional because it amounted to a special tax on a single group.
Middle Ground has also filed suit over another provision of the law, which imposes a 1 percent charge on deposits made to a prisoner’s spending account. Donna Leone Hamm, executive director of Middle Ground, said she thought that state legislators created the background check fee “out of sheer financial desperation” at a time when the state faces huge budget shortfalls. “This was a scheme — in my mind, a harebrained scheme — to try to come up with the money,” she said.
Wendy Baldo, chief of staff for the Arizona Senate, confirmed that the fees were intended to help make up the $1.6 billion deficit the state faced at the beginning of the year. “We were trying to cut the budget and think of ways that could help get some services for the Department of Corrections,” Ms. Baldo said.
She added that the department “needed about $150 million in building renewal and maintenance and prior to this year, it just wasn’t getting done and it wasn’t a safe environment for the people who were in prison and certainly for the people who worked there.” Ms. Baldo said the money would not actually pay for background checks but would go into a fund for maintenance and repairs to the prisons.
Barrett Marson, a spokesman for the Corrections Department, said in an e-mail that it was the department’s policy not to comment on pending litigation. Although there have been some calls and letters from potential visitors inquiring about the fee and how to pay it, no complaints had been reported from inmates, Mr. Marson said. The department has not determined whether the number of visitors to the prisons has changed since the charge went into effect, he added. “Maintenance funds for our buildings are scarce in this difficult economic time,” he said. “A $25 visitation fee helps to ensure our prisons remain safe environments for staff, inmates and visitors.”
I think it is fitting to consider and call this Arizona visitation fee a tax on those who wish to visit Arizona prisoners. But given that all state prisons need more operating revenues, and that severe cuts to corrections departments can often harm the inmates more than others, and that legislators are politically unlikely to raise taxes on the general population to allocate scarce dollars to "pro-prisoner" uses, perhaps this is the most politically viable and effective means to raise revenue to benefit prisoners.
Of course, raising revenue off the back of inmate visitors may well be "penny-wise and pound-foolish," especially if the money is allocated toward stuffing more bodies into prisons rather than making the prisons better for the prisoners. But bcause I suspect this Arizona innovation could end up real popular for struggling state and local governments desparate for politically-popular money-raising mechanisms, I think critics probably should start thinking about how to manage and focus this kind of tax to produce benefits rather than heavily invest in trying to have these kinds of schemes struck down in the courts.
September 5, 2011
"Do Exclusionary Rules Convict the Innocent?"
The title of this post is the title of this notable paper from Professors Dhammika Dharmapala, Nuno Garoupa and Richard McAdams, which is now available via SSRN. Here is the abstract:
Rules excluding various kinds of evidence from criminal trials play a prominent role in criminal procedure, and have generated considerable controversy. In this paper, we address the general topic of excluding factually relevant evidence, that is, the kind of evidence that would rationally influence the jury’s verdict if it were admitted. We do not offer a comprehensive analysis of these exclusionary rules, but add to the existing literature by identifying a new domain for economic analysis, focusing on how juries respond to the existence of such a rule. We show that the impact of exclusionary rules on the likelihood of conviction is complex and depends on the degree of rationality exhibited by juries and on the motivations of the prosecutor.
I have long thought that significant concern about wrongful convictions and significant support for the exclusionary rule were in some conceptual tension, and this paper appears to play out some of these kind of ideas. Though I certainly believe it can be a principled supporter of the exclusionary rule while expressing vocal concerns about wrongful convictions, I think supporters of the exclusionary rule should acknowledge that they sometimes favor putting procedural concerns ahead of trial accuracy.
Recognizing a tough reality for marijuana legalization advocates
I have in the past asked what is the best argument supporting broad and serious prohibitions on marijuana use (see this post), and I have come around to the view that it finds indirect expression in this Denver Post article headlined "Driving while stoned difficult to define, regulate in Colorado." Here are excerpts:
The number of drivers caught behind the wheel after using marijuana this year in Colorado is on pace to eclipse last year's total, adding fuel to cannabis critics' fears that the state is facing a growing problem of stoned driving.
But it is deeply in doubt whether the legislature next year will reconsider one proposal addressing the issue: creating a measurement by which drivers would be presumed too stoned to drive, which would make it easier for prosecutors to punish those who take the wheel while high....
The ultimate decision of whether to re-introduce a bill creating a "per se" limit of the amount of active THC drivers could have in their systems is still a ways off. THC is marijuana's psychoactive chemical. On Wednesday, a study group will present its research to a subcommittee of the state's Commission on Criminal and Juvenile Justice.... Significantly, the study group split sharply over whether a limit is appropriate. "There was considerable doubt whether there is enough science to set a per se limit for all people," said Sean McAllister, a medical-marijuana attorney who is part of the study group and who doesn't support a limit at this time.
Figures on motorists suspected of driving stoned hint at the debate. Last year, the state health department lab screened nearly 2,600 blood samples for THC, with about 1,600 of those coming back positive. Of the positive samples, about 500 had levels higher than 5 nanograms of THC per milliliter of blood — the amount that lawmakers earlier this year proposed as the per se limit. So far this year, the state has tested more than 2,200 samples, with about 1,000 positives and another 360 presumed positive but awaiting the required second confirmation. About 250 have registered above 5 ng/ml.
Meanwhile, medical-marijuana advocates like McAllister say some research suggests certain drivers who test above 5 ng/ml can still qualify as sober. And McAllister questioned the need for a per se limit — which eases the burden on prosecutors to prove impairment. He said prosecutors already have roughly a 90 percent success rate winning convictions when stoned-driving cases go to trial. "The science doesn't seem finished yet on the issue of DUI and marijuana," McAllister said.
Other statistics cloud the issue. In 2010, 32 drivers who tested positive for marijuana were involved in fatal accidents, according to the Colorado Department of Transportation — though it is unknown whether those drivers were at fault in the accident or were stoned enough to be impaired. In 2009, when fewer drivers total tested positive for pot, 37 drivers in fatal accidents were THC-positive. In 2008, the number was 31.
Arapahoe County Sheriff Grayson Robinson, who is also part of the study group, said he believes marijuana-impaired drivers are a serious danger and that a limit is needed. But he said the details of such a limit are difficult to agree upon. "The difficulties we're having," he said, "are the nuances."
I do not see merely the fact that some people drive stoned and even have serious car accidents while stoned to be a strong argument against marijuana legalization. After all, (many more) people get in accidents driving drunk or while texting, but that fact alone hardly support a climinal ban on all alcohol or smart phones. But, as this article suggests, pro-marijuana advocates are likely to be vocal and persistent advocates against any stringent marijuana regulations, which I fear risks turning off moderate voters who are not morally against marijuana legalization but are pragmatically concerned about its potential consequences. (And this debate is taking place in Colorado which, as detailed here, may have a pot legaltization initiative on the ballot in 2012.)
If pot prohibition supporters can showcase persistent resistance to what seems like reasonable "stoned driving" proposals and other similar regulations, it undercuts common claims that we could readily control legal marijuana's benefits and harms like we control alcohol's. Though this not really an argument supporting pot prohibition, my point is that these kinds of stories give more heft to the slippery-slope-type concerns that pot prohibition supporters often bring up in these discussions.
Some older and newer related posts on pot policy and politics:
- What are the strongest arguments against legalizing marijuana and regulating it like hard liquor?
- Path started to place pot legalization on Colorado ballot in 2012
- Ron Paul and Barney Frank introduce bill to let states set pot policy
- Why pot legalization fans are likely to try again in 2012
- Effective commentary concerning political discussion of pot policy and the drug war
- Big international report calling global drug war a failure
- "Would Legalizing Marijuana Cut Law Enforcement Costs?"
- "Tea Party = Pot Party?"
- American democracy getting a contact high from pot prohibition debate
- Making the conservative case for ending pot prohibition in California
- New "Just Say Now" campaign suggests growing marijuana legalization coalition
- Thoughtful academic thoughts on ending marijuana prohibitions
- How can and should we assess the "success" of medical marijuana and pot prohibition reform efforts?
- "Will Pot Be Legal By The End Of This Decade?
September 5, 2011 in Drug Offense Sentencing, Elections and sentencing issues in political debates | Permalink | Comments (5) | TrackBack
September 4, 2011
Should all prison inmates be offered meditation classes?
The question in the title of this post is prompted by this article appearing the the Houston Chronicle. The piece is headlined "Meditation helps inmates reach 'natural awareness',"and it begins this way:
Barefooted, eyes closed in reverie, bodies folded into lotus position, the men in white chanted the ancient Seven Line Supplication to Guru Rinpoche, who brought Buddhism to Tibet in the eighth century. As their voices swelled, their leader, Galveston artist Terry Conrad, swayed with the cadence. Pe ma gey sar dong pol la. Yam Tsen chog gi ngo drub nyey.
This could have been a scene from a 1960's love-in, with college-age acolytes - decked out in exotic garb -- paying fervid homage to the wisdom of the East. But these men were not students, and their attire was anything but exotic. They are inmates at Beaumont's Mark Stiles state prison; their duds, functional prison whites. And, under Conrad's gentle guidance, they were here to meditate.
Now in its eighth year, the weekly program offered through the prison chaplain's office, is designed to help prisoners, some guilty of the most heinous offenses, achieve "natural awareness."
"Meditation," Conrad said, "is not about creating a certain state. It's just an opportunity to be present to whatever is going on. Sometimes that's quiet and peaceful, other times the mind is going 100 mph." Such awareness can help the individual "become who they truly are -- innately good and wise and compassionate."
"How has this changed me?" said John Harrup, 39, of Magnolia, who has been part of the class since its inception. "I was a different person when I came in here. It has taught me to be more patient, how to deal with people. In laymen's terms, how to communicate better, how to understand another person's viewpoint, to realize that my way is not always the right way."
The title of this post is the title of this notable new paper by Professor William W. Berry III. Here is the abstract:
At the heart of the Eighth Amendment’s “cruel and unusual” punishment clause are two concepts of proportionality -- absolute and relative. Absolute proportionality (“cruel”) asks whether the sentence is commensurate with the state’s purposes of punishment. Relative proportionality (“unusual”), by contrast, asks whether the sentence is relatively similar to the outcomes of similar cases. Absolute proportionality sets limits on punishment based on the relationship between the punishment and the intended punitive goal; relative proportionality sets limits on punishment based on the sentencing outcomes in similar cases.
In recent years, the United States Supreme Court has utilized the concept of absolute proportionality to create categorical prohibitions for the use of the death penalty for minor offenders, intellectually disabled offenders, and for non-homicide crimes. The concept of relative proportionality, however, has received little attention recently. Indeed, ignoring this concept has perpetuated disparity in state court sentencing of death-eligible crimes.
This article argues for the restoration of relative proportionality under the Eighth Amendment and proposes a theoretical model for its application. Further, the article addresses the central problem of relative proportionality –- the inherent difficulty in applying it to individual cases –- by offering a practical framework for determining the relative proportionality of a given case.
This article first outlines the concept of relative proportionality and tracks its origins and jurisprudence. Part Two then explores the current applications of relative proportionality by various states and describes the unfortunate outcomes of these inadequate approaches. Part Three offers a theoretical model for “practicing” the concept of relative proportionality and describes its application. Lastly, Part Four illustrates the jurisprudential and sentencing benefits of practicing proportionality.