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September 7, 2011

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.

September 7, 2011 in Booker in district courts, Data on sentencing, Detailed sentencing data, Who Sentences? | Permalink | Comments (7) | TrackBack

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:

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?

September 7, 2011 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

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.

Related posts:

September 7, 2011 in Blakely Commentary and News, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

"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 7, 2011 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

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.  

September 6, 2011 in Data on sentencing, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12) | TrackBack

"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.

September 6, 2011 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

"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: 

September 6, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

"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.

September 6, 2011 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (7) | TrackBack

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 6, 2011 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (6) | TrackBack

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.

September 5, 2011 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (7) | TrackBack

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:

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."

September 4, 2011 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (16) | TrackBack

"Practicing Proportionality"

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.

September 4, 2011 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack