September 17, 2011
"Fort Worth man gets life sentence in shoplifting case that ended in death"
The presidential candidacy of Texas Governor Rick Perry has brought extra attention to his state's record with capital punishment. But this local Texas article reporting on the imposition of a life(!) sentence on a Walmart shoplifter has me hoping the media might find some time to ask Governor Perry some questions about some other aspects of Texas justice. (Hat tip: Scott Henson from Grits for Breakfast.)
The title of this post comes from the the headline this Fort Worth Star-Telegram article, and here are the remarkable offense and sentencing details:
A 38-year-old man has been sentenced to life in prison in a shoplifting case that ended in the death of a Walmart employee. Although William Alan Kennedy was never charged with causing the death of Bruce Florence, a Tarrant County jury found the Fort Worth man guilty of aggravated robbery for knocking Florence, 56, down while trying to run out of the Westworth Village Walmart with a stolen TV worth $348 on June 11, 2010.
Florence, who hit his head on the floor, was hospitalized and died June 20. The Tarrant County medical examiner's office, however, ruled that end-stage liver cirrhosis -- not the head injury -- caused Florence's death.
"After conscientious deliberations, the jury agreed that Kennedy's actions were a serious threat to Bruce Florence," Nelda Cacciotti, who prosecuted the case with Mark Thielman, said in a news release issued by the Tarrant County district attorney's office Thursday. "We hope that all shoplifters get the message that store thefts may have long-term consequences for the victim and the defendant."
The jury deliberated almost three hours before finding Kennedy guilty of aggravated robbery. State District Judge Mike Thomas then sentenced Kennedy to life in prison. Kennedy has appealed the case....
Besides aggravated robbery, court records show that Kennedy was also convicted Wednesday on five state-jail-felony charges of theft of property in similar shoplifting cases in Fort Worth, four of which involved Walmarts.
The applicable Texas robbery law makes a robbery "aggravated" if the defendant "causes serious bodily injury to another," but the potential Texas statutory punishment range for such a first-degree felony appears to be 5 years to life. Given the fact that the defendant here, though apparently a serial shoplifter, did not obviously intend to seriously hurt the store employee who tragically died, I do not see the justification for maxing out this defendant's punishment to life in prison!?! (I believe this particualr form of a life term includes the possibility of parole in Texas, though I also believe lifers in Texas are not even statutorily eligible for parole for 35 years!)
Record-long 50-year prison sentence for Medicare fraud imposed in Florida
As detailed in this Miami Herald article, late yesterday a "federal judge socked a convicted Miami healthcare executive with a 50-year prison sentence, the longest term ever imposed on a Medicare fraud offender." Here are the notable details:
New York transplant Lawrence Duran once ran a multimillion-dollar mental health company in Miami, lobbied Congress for his industry and tooled around town in a Maserati. His next stop: federal prison — likely for the rest of his life.
On Friday, a federal judge slammed Duran, 49, with a 50-year prison sentence for orchestrating a staggering $205 million scam at his Miami-based chain of mental health clinics. The sentence may end up being the longest prison term ever imposed on someone convicted of Medicare fraud.
Duran’s lawyer, Lawrence Metsch, had urged the judge to be realistic and give him a sentence between 20 and 25 years, arguing that 50 years means a “death sentence because he would die in prison.” But the judge, after a three-day sentencing hearing, sided with the government’s push for the extraordinarily high sentence, saying there is a “critical need for deterrence against healthcare fraud” in South Florida, the nation’s capital of Medicare corruption.
Previously, the highest Medicare fraud sentence was 30 years — given in 2008 to a Miami physician, Ana Alvarez-Jacinto, convicted in an HIV-therapy scheme.
After the sentencing, Duran shook his lawyer’s hand and then smiled to tearful relatives, as he shuffled in shackles out of the courtroom escorted by U.S. marshals. His ex-wife, Carmen Duran, and his only sibling, Kenia Duran Ramirez, said the judge’s sentence was not a “fair assessment” of the former executive’s life, saying his work for the mentally ill was “not all bad.”
This year, Duran and his girlfriend, Marinella Valera, co-owners of American Therapeutic Corp., pleaded guilty to a variety of conspiracy, fraud and money-laundering charges after they failed to reach plea deals with the Justice Department.
Duran, in custody since his arrest last October, was probably his own worst enemy during the sentencing hearing. Although he showed remorse for running American Therapeutic as a criminal enterprise for eight years, he also admitted he tried to steal as much money as he could from the taxpayer-funded Medicare program.
His company collected $87 million in Medicare payments after submitting $205 million in bogus bills, which he generated by paying kickbacks to recruiters to supply patients suffering from dementia, Alzheimer’s and addictions. He admitted they could not have benefited from his company’s purported group therapy sessions. Justice Department attorney Jennifer Saulino called Duran a “cold, calculating man” who exploited both vulnerable patients and the government’s healthcare program for the elderly and disabled....
Duran’s girlfriend, Valera, 40, a therapist, is scheduled to be sentenced Monday. Prosecutors plan to urge the judge to give her a 40-year prison sentence. A total of 34 people, including American Therapeutic employees, doctors, therapists, nurses and recruiters, have been charged in the massive fraud case, which is being investigated by the FBI and Health and Human Services-Office of Inspector General.
September 17, 2011 in Booker in district courts, Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (2) | TrackBack
The exact price of federal confinement in FY 2010
A helpful e-mail alerted me to this page of the Federal Register putting a precise dollar figure for federal confinement last year as calculated by the US Bureau of Prisons:
The fee to cover the average cost of incarceration for Federal inmates in Fiscal Year 2010 was $28,284. The average annual cost to confine an inmate in a Community Corrections Center for Fiscal Year 2010 was $25,838....
We calculate this fee by dividing the number representing Bureau facilities’ monetary obligation (excluding activation costs) by the number of inmate-days incurred for the preceding fiscal year, and then by multiplying the quotient by 365.
September 16, 2011
"ACLU endorses marijuana legalization in Colorado"
The title of this post is the title of this news report out of the Centennial State. Here are the basics:
The ACLU of Colorado Thursday announced it has endorsed the Campaign to Regulate Marijuana like Alcohol.
“In Colorado we believe our laws should be practical and they should be fair. Yet we are wasting scarce public resources in our criminal justice system by having police, prosecutors and the courts treat marijuana users like violent criminals. It is unconscionable for our state to spend tax dollars to arrest, prosecute and crowd the courts, and jail people for possession of a small amount of marijuana, especially when those being arrested and jailed are disproportionately people of color,” said the ACLU in a statement on its web site.
“The war on drugs has failed. Prohibition is not a sensible way to deal with marijuana. The Campaign to Regulate Marijuana Like Alcohol will move us toward a more rational approach to drug laws,” the statement continued.
Rosemary Harris Lytle, communications director at the ACLU of Colorado, said legalizing small amounts of marijuana for adults is a civil rights issue. “Current drug laws contribute to the mass incarceration of people of color, especially young people of color.” She said that drug use is roughly equal among ethnic groups in the U.S., but that a disproportionate number of those incarcerated for possession of small amounts of drugs are people of color.
Moreover, she said the effort to legalize small amounts of marijuana is in keeping with the ACLU’s mission of promoting and defending individual rights and freedom. “We believe that prosecuting people for low-level possession of marijuana is a waste of the taxpayers’ resources,” Harris Lytle said.
The full ACLU of Colorado statement is available at this link.
Justice Ginsburg expresses fondness for Furman's halt to capital punishment
This new article from the San Francisco Chronicle, headlined "Justice Ginsburg discusses equality, death penalty," reports on some notable comments by Justice Ruth Bader Ginsburg concerning the death penalty and the Supreme Court's four-decade effort to provide constitutional regulations for its administration:
Supreme Court Justice Ruth Bader Ginsburg, speaking to law students in San Francisco, called Thursday for equality for gays and lesbians and said the court should return to a 1972 ruling that halted executions nationwide....
The subject of capital punishment came up when Hastings Professor Joan Williams, who conducted the 90-minute question-and-answer session, asked the 78-year-old justice what she would like to accomplish in her remaining years on the court. "I would probably go back to the day when the Supreme Court said the death penalty could not be administered with an even hand, but that's not likely to be an opportunity for me," Ginsburg said.
She was referring to the ruling in a 1972 Georgia case that overturned all state death penalty laws, which had allowed judges and juries to impose death for any murder. Four years later, the court upheld another Georgia law that prescribed death for specific categories of murder and gave guidance to juries, a model that California followed when it renewed capital punishment in 1977.
Ginsburg described review of impending executions as "a dreadful part of the business," and said she has chosen not to follow the path of the late Justices Thurgood Marshall and William Brennan -- who declared in every capital case that they considered the death penalty unconstitutional -- so that she could maintain a voice in the debate.
Eighth Circuit panel unanimously affirms Rubashkin federal convictions and lengthy prison sentence
The Eighth Circuit has handed down an opinion today in US v. Rubashkin, No. 10-2487 (8th Cir. Sept. 16, 2011) (available here), a high-profile white-collar case out of the heartland involving financial frauds at a kosher meat-packing plant. The panel has unanimously affirmed the Sholom Rubashkin's conviction and sentence; I have followed this case closely, in part because I helped file an amicus brief complaining about what I considered to be an unreasonable of 27-year (within-guideline) federal prison sentence for the defendant's offense conduct.
Though disappointed with the ruling here, I am not especially surprised given the Eighth Circuit's history in sentencing appeals. (That history, along with the frequency with which the Supreme Court has reviewed and reversed the Eighth Circuit's work since Booker, might well mean this case will get more appellate attention in the future). Here is an excerpt of the Rubashkin panel's sentencing discussion:
Rubashkin argues that his 324 month sentence was substantively unreasonable given his age, nonviolence, lack of criminal history, unlikelihood of recidivism, family obligations, and the principal motives for his acts,. We review the imposition of a sentence under "a deferential abuse-of-discretion standard." United States v. Hayes, 518 F.3d 989, 995 (8th Cir. 2008) (quoting Gall, 552 U.S. at 41). Sentences within the guideline range are presumed to be substantively reasonable. United States v. Robinson, 516 F.3d 716, 717 (8th Cir. 2008).
Not only was Rubashkin's sentence of 324 months within the guideline range, it was at the low end of it. Rubashkin argues that because of his past charitable acts and his family obligations he should have been granted a downward departure. These are the very characteristics that the district court properly took into account when considering the § 3353(a) factors. The court weighed Rubashkin's past charitable acts, nonviolence, and the needs of his family against his involvement in multiple fraudulent schemes and the millions of dollars in damage they caused. The cases Rubashkin cites in favor of his unreasonableness argument illustrate instances where downward departures based on charity or family needs have been affirmed. Nothing requires a sentencing court to depart on such grounds. Under all the circumstances the district court did not abuse its considerable discretion in imposing a 324 month sentence.
Related posts on the Rubashkin case:
- "More Former AGs Question Sentence Sought in Bank Fraud Case"
- Can and should religious considerations influence bail decisions?
- Federal sentencing hearing starting in high-profile Rubashkin white-collar case
- Federal prosecutors now seeking 25-year prison term for Rubashkin
- Kosher plant chief Sholom Rubashkin sentenced to 27 years imprisonment
- An appellate amicus brief in the Rubashkin case on sentencing issues
Wiccan Witch of Wisconsin prison now in big trouble
This amusing but still sad story from ABC News seems tailor-made for a Friday post on this blog. The piece is headlined "Wisconsin Witch Accused of Sex Assault in Alleged Prison Hostage Plot," and here is how it starts:
A Wiccan prison chaplain who allegedly hatched a plan to fake a hostage situation with an inmate is now facing close to 60 years in prison, accused of sexual assault and providing narcotics to an inmate.
Jamyi Witch, 52, of Omro, Wis., who became the first Wiccan prison chaplain in the state amid controversy in 2001, is accused of sexual role-playing with an inmate, plying him with sleeping pills and telling the prison she was assaulted so both individuals could be transferred to a new facility.
On Aug. 10, Witch, who changed her last name from Welch because of her religion, told police that an inmate came into her office, barricaded the door with shelving and her wheelchair, and held her hostage, according to court documents. The situation ended peacefully, with the inmate being removed after being fed sleeping pills by Witch.
Two weeks later, however, police said they intercepted a letter from the inmate to his mother describing a different scenario in which Witch hatched a plan for a fake hostage situation in order to get them both transferred to other facilities, according to the criminal complaint.
SCOTUS halts Texas execution at last minute in case raising racial issues
As detailed in this MSNBC rport, the "U.S. Supreme Court Thursday halted the execution of a black man convicted of a double murder in Texas 16 years ago after his lawyers contended his sentence was unfair because of a question asked about race during his trial." Here is more:
Duane Buck, 48, was spared from lethal injection when the justices, without comment, said they would review an appeal in his case. Two appeals, both related to a psychologist's testimony that black people were more likely to commit violence, were before the court. One was granted. The other denied.
"Praise the Lord!" Buck told Texas Department of Criminal Justice spokesman Jason Clark. "God is worthy to be praised. God's mercy triumphs over judgment. "I feel good."... The reprieve came nearly two hours into a six-hour window when Buck could have been taken to the death chamber....
Buck's case is one of six convictions that the state's then-top attorney reviewed in 2000 and said needed to be reopened because of the racially charged statements made during the sentencing phase of the trial. A psychologist told jurors that black criminals were more likely to pose a future danger to the public if they are released....
Buck was convicted in 1997 of capital murder in connection with the deaths of Debra Gardner and Kenneth Butler, who were shot to death with a shotgun one night as they were hanging out with friends at Gardner's house....
Buck's guilt is not being questioned, but his lawyers say the jury was unfairly influenced and that he should receive a new sentencing hearing. The Texas Board of Pardons and Paroles ... had denied Buck's clemency request Wednesday, and the 5th U.S. Circuit Court of Appeals subsequently rejected his appeal.
Buck's lawyers contend the case was "tainted by considerations of race" after psychologist Walter Quijano testified in response to a question from lead prosecutor Joan Huffman that black criminals are more likely to be violent again in the future. Whether or not someone could be a continuing threat to society is one of three questions Texas jurors must consider when deciding on a death sentence.
Critically, the Supreme Court's stay and order in this case (available here) does not include a grant of certiorari, it just gives the Justices more time to decide if they should grant cert.
September 15, 2011
Remarkable drop in US violent crimes rates in 2010 according to latest BJS data
More amazingly great news on crime rates today as reported in this press release from the folks at the Bureau of Justice Statistics:
During 2010, U.S. residents age 12 or older experienced a double-digit drop (down 13 percent) in the rate of violent victimization, the Bureau of Justice Statistics (BJS) announced today. Violent crime includes rape or sexual assault, robbery, aggravated assault and simple assault. The rate of property victimization, which includes burglary, motor vehicle theft and household theft, also declined by six percent during the year.
The drop in violent victimization, from about 17 victimizations per 1,000 residents in 2009 to 15 per 1,000 in 2010, was three times the average annual rate of decline experienced over the last nine years. The property victimization rate dropped from 127 victimizations per 1,000 households in 2009 to 120 per 1,000 in 2010, which was about two times the average annual rate of decline from 2001 to 2009. During the 10-year period from 2001 to 2010, the overall violent victimization rate decreased by 40 percent and the property victimization rate fell by 28 percent.
These declines in violent and property victimizations continued a larger trend of decreasing criminal victimization in the United States. In 2010, violent and property victimization rates fell to their lowest levels since the early 1990s. From 1993 to 2010, the violent crime victimization rate decreased 70 percent, dropping steadily from about 50 victimizations per 1,000 persons age 12 or older in 1993 to about 15 per 1,000 in 2010. The property crime victimization rate fell 62 percent, from about 319 victimizations per 1,000 households in 1993 to 120 per 1,000 in 2010.
Overall, U.S. residents age 12 or older experienced an estimated 18.7 million violent and property crime victimizations during 2010, down from 20.1 million in 2009. This included 3.8 million violent victimizations, 1.4 million serious violent victimizations (rape or sexual assault, robbery and aggravated assault), 14.8 million property victimizations and 138,000 personal thefts (picked pockets and snatched purses).
The new 20-page publication from BJS with all this and lots more data can be downloaded here. I remain incredibly happy (and continue to be stunned) by these wonderful crime rate trends despite all the economic doom-and-gloom and broader discussion of the US in decline and the failings of government. Many like to say that a primary goal, if not the central role, of all government is to ensure the safety of its citizens. Though nobody can seem to figure out just how or why, it seems that the governments in the US over the last few decades are continuing to get better and better and better at succeeding in making its citizens safer from crime.
Regular readers are used to hearing me respond to this kind of data by asserting that academics and researchers of all stripes should be doing whatever they can to try to figure out what is working with respect to crime these days. As stressed in this prior post, all the usual tropes about the impact and importance of incarceration rates and broader economic realities seem to fail to explain what is going on these days. Some new (and perhaps unappealing) theories need to be explored (such as those I set forth in this lengthy post, include my (tongue-in-cheek?) favorites that ample carbs/calories and the availability of "medical" marijuana and prescription opiates are leading relatively crime-prone individual to get so fat or to self-medicate so that they become relatively less crime-prone).
One final (crazy?) point: criminologists and others often used to worry that elevated unemployment levels would result in more crime, but lately I am wondering if reduced crime levels might be resulting in more unemployment. This crime data surely suggests that there are fewer so-called "career criminals" and that in turn means more people out looking for legitimate work. Add in the reality that, partially due to less crime, in recent years fewer persons are being sent to prison and thus fewer persons are hired to build and work inside prisons, and we may have a (viable?) criminal justice explanation for the modern stubbornness of the US unemployment rate.
Mandatory life (with parole) sentence for "lewdness with child under 14" before Nevada Supreme Court
The folks at Families Against Mandatory Minimums have this new press release spotlighting that a very interesting state mandatory minimum sentencing case is to be heard by the Nevada Supreme Court this afternoon. Here are the basics:
[Michelle Lyn] Taylor, 34, was convicted under Nevada’s “life-for-lewdness” law in November 2009 for drunkenly forcing a 13-year-old boy to touch her breast and demanding (unsuccessfully) that the boy engage in sex. Neither the judge, nor one of the original legislative sponsors of the lewdness law, felt the punishment fit the crime. Still, the existence of the mandatory minimum law forced the court to sentence Taylor to life in prison with possibility for parole in 10 years....
FAMM noted in its [amicus] brief [available here] that Nevada is the only jurisdiction in the country that requires a mandatory life sentence for lewd conduct. The majority of states provide punishment of between several months to five years in prison. The minority of states that permit more severe penalties do so without utilizing mandatory minimum sentences anywhere near the life sentence required under Nevada law. Indeed, only two states even allow, in the broad exercise of a sentencing court’s discretion, that a life sentence might be imposed for such conduct in the most egregious cases.
In addition to the remarkable facts involved in this Nevada case, I find the legal issues here quite fascinating in part because there is a claim here pressed based on the Nevada Constitution's prohibition of "cruel or unusual" punishment as well as one based on the Eighth Amendment prohibition on "cruel and unusual" punishments. In addition, for modern Eighth Amendment jurisprudence in the wake of the Supreme Court's recent ruling in Graham, it is unclear just how much constitutional significance there is to the fact (1) that this life term was a result of a mandatory sentencing provision, and (2) that the defendant is eligible for (and probably would receive) parole before the end of this decade.
- A life sentence for a woman who forces a teenage boy to touch her breasts!?!?!
- FAMM amicus brief assails life (with parole) sentence for woman who let teen touch breasts
UPDATE: A helpful reader wisely suggested I tweak the title of this post to clarify that the offense of conviction in this notable case concened "lewdness with child" under the age of 14. In addition, I thought it useful to link to the applicable Nevada statute and reprint its basic provisions:
Nevada Revised Section 201.230: Lewdness with child under 14 years; penalties.
1. A person who willfully and lewdly commits any lewd or lascivious act, other than acts constituting the crime of sexual assault, upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of that child, is guilty of lewdness with a child.
2. Except as otherwise provided in subsection 3 [providing for mandatory LWOP for repeat offender], a person who commits lewdness with a child is guilty of a category A felony and shall be punished by imprisonment in the state prison for life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served, and may be further punished by a fine of not more than $10,000.
September 15, 2011 in Assessing Graham and its aftermath, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack
Is Congress to make unauthorized use of coffee-makers (and even some commenting on this blog) a federal felony?
The seemingly crazy question in the title of this post is prompted by this new op-ed appearing today in the Wall Street Journal and authored by computer-crime guru Orin Kerr. The piece is headlined "Should Faking a Name on Facebook Be a Felony? Congress contemplates draconian punishment for Internet lies," and here are excerpts:
Imagine that President Obama could order the arrest of anyone who broke a promise on the Internet. So you could be jailed for lying about your age or weight on an Internet dating site. Or you could be sent to federal prison if your boss told you to work but you used the company's computer to check sports scores online. Imagine that Eric Holder's Justice Department urged Congress to raise penalties for violations, making them felonies allowing three years in jail for each broken promise. Fanciful, right?
Think again. Congress is now poised to grant the Obama administration's wishes in the name of "cybersecurity."
The little-known law at issue is called the Computer Fraud and Abuse Act. It was enacted in 1986 to punish computer hacking. But Congress has broadened the law every few years, and today it extends far beyond hacking. The law now criminalizes computer use that "exceeds authorized access" to any computer. Today that violation is a misdemeanor, but the Senate Judiciary Committee is set to meet this morning to vote on making it a felony.
Breaching an agreement or ignoring your boss might be bad. But should it be a federal crime just because it involves a computer? If interpreted this way, the law gives computer owners the power to criminalize any computer use they don't like....
If that sounds far-fetched, consider a few recent cases. In 2009, the Justice Department prosecuted a woman for violating the "terms of service" of the social networking site MySpace.com. The woman had been part of a group that set up a MySpace profile using a fake picture. The feds charged her with conspiracy to violate the Computer Fraud and Abuse Act. Prosecutors say the woman exceeded authorized access because MySpace required all profile information to be truthful. But people routinely misstate the truth in online profiles, about everything from their age to their name. What happens when each instance is a felony?
In another case, Justice has charged a defendant with violating workplace policies that limited use to legitimate company business. Prosecutors claimed that using the company's computers for other reasons exceeded authorized access. The Ninth Circuit Court of Appeals recently agreed....
Remarkably, the law doesn't even require devices to be connected to the Internet. Since 2008, it applies to pretty much everything with a microchip. So if you're visiting a friend and you use his coffeemaker without permission, watch out: You may have committed a federal crime.
Until now, the critical limit on the government's power has been that federal prosecutors rarely charge misdemeanors. They prefer to bring more serious felony charges. That's why the administration's proposal is so dangerous. If exceeding authorized access becomes a felony, prosecutors will become eager to charge it. Abuses are inevitable.
Real threats to cybersecurity must be prosecuted. Penalties should be stiff. But Congress must narrow the Computer Fraud and Abuse Act before enhancing its penalties. There's no reason to make breaching a promise a federal case, and certainly not a felony crime.
I am, of course, eager to assume that everyone who visits and comments on this blog is doing so from a computer on which they have authorized access. And yet, I also suspect that a hard-headed federal prosecutor, perhaps one who does not think former federal prosecutor Bill Otis gets all the respect he deserves in this forum, might be eager to investigate if some commentors who regularly attack Bill are possibly exceeding their authorized access when posting comments. Or perhaps this new proposed Computer Fraud and Abuse Act would even allow a hard-headed federal prosecutor to go after commentor "federalist" simply because that chosen commentor has been using a "fake" name which (falsely?) suggests he has some link to the authors of The Federalst Papers.
Despite death penalty's practical demise and a prisoner release order, California crime hit record low in 2010
I missed this AP report from a few days ago detailing that California's crimes rates hit record low levels in 2010. Here are the basic details:
State officials report that incidences of violent crime decreased 6.9 percent in California last year, reaching the lowest level since 1968.
The annual "Crime in California" report released Friday shows that the crime rate went down in every category of violent or property offenses in 2010. It was the fourth year in a row that violent crime decreased.
Homicides were down 7.8 percent, robbery dropped 10 percent and motor vehicle theft fell 7.6 percent. Officials say since peaking in 1989, the motor vehicle theft rate has decreased 62 percent. Homicide and forcible rape rates are the lowest since 1966.
The yearly report is compiled by the California Department of Justice and is based on data from police and sheriff's departments in all of the state's 58 counties.
As the title of this post highlights, I think it is valuable to keep in mind that this great news about California crime rates comes during a period federal litigation has resulted in the state having zero executions and having to figure out ways to significantly reduce its state prison population.
Critically, I mean to make no cause-and-effect claims here; indeed, I think it would be deeply misguided to assert based on just this crime data that the state is obviously "safer" without the death penalty and without an ever-growing prison population. But I do mean to highlight that this important and good news on the California crime rate front suggests that the many obvious dysfunctions in California's sentencing laws, policies and practices does not (yet?) appear to be having an obviously negative impact on public safety in the state.
September 14, 2011
"Family of alleged hate-killing victim opposes death penalty in case"
The title of this post is the headline of this CNN report which provides a notable example of a situation in which respecting the wishes of crime victims would result in potential (undue?) sentencing leniency. Here is how the piece starts:
The family of an African-American man who died after allegedly being beaten by a group of white teens and run over by a truck is asking state and federal officials not to seek the death penalty in the case.
Relatives of James Craig Anderson, who died shortly after receiving his injuries on June 26, sent a letter with their request to the prosecutor in the case, Hinds County District Attorney Robert Shuler Smith. "We ask that you not seek the death penalty for anyone involved in James' murder," the letter states; the letter is signed by Barbara Anderson Young, James Craig Anderson's sister who is in charge of, and speaks for, his estate.
The letter states that the family is opposed to the death penalty partly for religious convictions. "Our opposition to the death penalty is deeply rooted in our religious faith, a faith that was central in James' life as well," the letter states. But the family goes on to explain that there is another reason for their opposition, one that is tied to Mississippi's racial past.
"We also oppose the death penalty because it historically has been used in Mississippi and the South primarily against people of color for killing whites," the letter states. "Executing James' killers will not help to balance the scales. But sparing them may help to spark a dialogue that one day will lead to the elimination of capital punishment."
The family has been mostly private in its grief, but the letter sent to the DA's office alludes to what the family is going through. "Those responsible for James' death not only ended the life of a talented and wonderful man. They also caused our family unspeakable pain and grief. But our loss will not be lessened by the state taking the life of another," it says.
The death of James Craig Anderson, 48, occurred early June 26 in Jackson, allegedly at the hands of white teens who, after a night of partying and drinking, decided to go looking for black people to assault, law enforcement officials have said, quoting one of the suspects in the case.
Anderson's death drew national attention after CNN first reported it and aired exclusive surveillance video of the actual killing, captured by a parking lot security camera in a Jackson suburb. Smith, the district attorney, has called it "vicious" and a "premeditated hate crime."
"We have a racially motivated killing," said Smith, asserting that the group of white teens sought out a black person to kill. "The teens came to Jackson and they picked out a black man, an innocent victim. They assaulted that victim, and then they just killed him."
Early buzz that feds think Rod Blagojevich's guideline range is 30 years to life in prison
I am a bit skeptical of, though still quite intrigued by, this new story from the Chicago Sun-Times headlined "Feds say Rod Blagojevich could get 30 years to life in prison." Here are the basics:
Federal prosecutors argue Rod Blagojevich could serve 30 years to life in prison, sources say — a sentencing range that will be bitterly disputed by the former governor’s defense lawyers.
Blagojevich attorney Sheldon Sorosky called the government’s numbers “harsh and cruel,” Wednesday but said he wouldn’t discuss them. The prosecution’s calculation was submitted in private. Sorosky said the defense would put forth its own version that is a far cry from the government’s.
“We are preparing a submission to Judge Zagel, which is far, far, far under those draconian and harsh and cruel numbers,” Sorosky said. “We are making our own guideline calculation which is fair and based on facts and the evidence at trial.”
Blagojevich, 54, who is now scheduled to be sentenced Oct. 6, was convicted in June on 17 of 20 counts of corruption, including charges that he schemed to sell President Obama’s vacant U.S. Senate seat. Blagojevich was also convicted last year of one count of making false statements to the FBI....
U.S. District Judge James Zagel will have wide discretion over the former governor’s prison term, as sentencing guidelines for federal judges are advisory. Judges typically listen to all sides and then decide, based on a number of factors that make up the sentencing range....
“While that may be the government’s calculation, it’s good to keep in mind that Judge Zagel has ultimate discretion,” said Patrick Collins, a former prosecutor in the Ryan case. “I would be shocked if he would consider a sentence anywhere near that.”
In the prosecution’s calculations, the government says Blagojevich faces more time because he took the witness stand and allegedly obstructed justice, sources said. As governor, he was also leader of an enterprise, they will argue. The U.S. Attorney’s office had no comment.
Court filings involving Blagojevich’s sentencing are expected on Friday. Though his sentencing is set to begin Oct. 6, Sorosky has previously questioned whether it would begin on time since the same judge is set to begin the corruption trial of Springfield power broker William Cellini three days earlier.
It is not unusual for federal guideline sentencing ranges to go crazy high in white-collar cases in which a lot of money was lost or gained. But I cannot recall any political corruption cases in which the government ran the numbers to get such a high range. This press report may reflect the fact that the government's filing with the probation office suggested the potential applicability of lots of guidelines enhancements even if the PSR is unlikely to find all the enhancements applicable. Whatever the particulars, it seems we can and should expec the feds to be seeking some serious prison time for Blago.
Some related posts following Blago's convictions in June:
- "Jury Convicts Blagojevich"
- You make the sentencing call: What sentence should Blago get?
- Bold (and misguided?) prediction of 20-25 years in the federal pen for Blago
- Do would-be white-collar offenders actually "get the message" from long sentences?
"The Early Release Revolution: Early Assessments and State-Level Strategies"
The title of this post is the title of this timely new piece by Jesse Norris which is available via SSRN. Here is the abstract:
Reacting to widespread budget crises, many states are experimenting with early release legislation to help cut correctional costs. This early release revolution is a stark reversal of earlier trends toward determinate sentencing. Implementing early release policies appropriately could help bring about a new sentencing era characterizing by lower rates of incarceration and higher levels of public safety. However, early release is potentially vulnerable to abuse and prone to backlash, and must be planned and implemented carefully to avoid endangering the public, fostering injustice, or failing to realize hoped-for budgetary savings.
This Article outlines a set of principles for making early release successful, using Wisconsin as a case study because of its unusually large number of early release mechanisms. After evaluating Wisconsin’s recent early release legislation, this Article presents four principles for an effective early release system. Specifically, state policymakers dealing with early release legislation should a) prevent injustice by monitoring for bias and requiring structured, recorded decision-making; b) provide for effective implementation through strategic governance; c) ensure early release is compatible with public safety; and d) complement early release with other measures designed to decrease incarceration.
The Article also uses preliminary data to respond to recent work on early release and sentence modification. First, in response to arguments for the superiority of judicial rather than administrative sentence modification, the Article provides evidence that judicial sentence modification mechanisms may widen racial disparities. Second, addressing the charge that risk assessment-aided early release will exacerbate racial disparities, I show that this has not occurred so far in Wisconsin. Finally, contesting the claim that early release has no role to play in reducing prison populations, I show that a non-trivial proportion (12%) of the recent drop in the Wisconsin prison population was due to recent early release reforms. While this shows that early release does have some role to play in reducing prison populations, the relatively low proportion reinforces the Article’s argument for supplementing early release with other incarceration-lowering policies.
Even if banning sex offenders from public libraries is constitutional, is it a reasonable policy?
I responded yesterday to a Tennessee story about a new criminal prohibition on registered sex offenders setting foot in a public library by asking in this post, "Is it constitutional to ban sex offenders from public libraries?". I sent the post to First Amendment guru Eugene Volokh, and he responded with two great posts on his great blog here and here explaining his view that (1) this new Tennessee ban is constitutionally permissible under the First Amendment, but (2) there could be a problem with it under federal regulatory law for libraries that get federal benefits.
In addition to expressing how grateful I am for Eugene's input and analysis, I wanted to do this follow-up post asking for reactions to this ban as a matter of policy. I tend to have a negative reaction to the ever-growing and seemingly never-ending list of what registered sex offenders must and must not do. And yet, public libraries are places where not only do I want patrons to be 100% safe, but I want even the most fearful of potential patrons to believe they are 100% safe.
Before condemning this new Tennessee law, it is worth considering how a local mayor or town council member should be expected to respond if some (many? a few?) constituents assert that they genuinely would feel safer with their kids at the local library if sex offenders were barred. Though many might say it is silly to have an undue fear about registered sex offenders while at the public library, I think it must be hard for an elected official to say just that directly to a person expressing such a fear and urging the kind of ban now in place in Tennessee.
"Of Speech and Sanctions: Toward a Penalty-Sensitive Approach to the First Amendment"
I just came across this interesting paper by Michael Coenen, which has the same title as the title of this post, which has become my must-read for today because the piece touches on a few topics I have been thinking about a lot in recent years in two particular sentencing settings. Let me here quote the SSRN abstract and then briefly explain my particular sentencing law spin:
Free-speech adjudicators seldom scrutinize the severity of a speaker’s sanction. Embracing a “penalty-neutral” understanding of the free-speech right, courts tend to treat an individual’s expression as either protected, in which case the government may not punish it at all, or unprotected, in which case the government may punish to its heart’s content. There is, however, a small body of “penalty-sensitive” case law, which runs counter to the penalty-neutral norm. On the penalty-sensitive approach, the severity of a speaker’s punishment affects the merits of her First Amendment claim, thus giving rise to categories of expression that the government may punish, but only to a certain extent.
This Article defends the penalty-sensitive approach and calls for its expanded use within First Amendment doctrine. Pulling together existing strands of penalty-sensitive doctrine, the Article identifies five ways in which penalty sensitivity can further important constitutional objectives: (1) increasing fairness for similarly-situated speakers; (2) mitigating chilling effects on protected speech; (3) facilitating the “efficient breach” of constitutionally borderline speech restrictions; (4) rooting out improper government motives; and (5) giving effect to certain “hybrid” speech rights. The Article also considers potential objections to the penalty-sensitive approach, concluding that, while the utility of the approach will vary from case to case, penalty sensitivity can provide effective solutions to difficult First Amendment problems.
I am draw to this paper because I have long worried that the "true problem" with modern extreme federal prison terms for merely downloading some child porn or for illegally possessing a gun under certain settings is a lack of "penalty sensitivity" given the sometimes close relationship between constitutionally protected First (or Second) Amendment behavior and unprotected behavior that can now land a defendant in prison for decades. (if/when I get a chance to read this new paper closely, I may have a lot more to say on this topic.)
Will third time clemency hearing be the charm for Troy Davis on eve of his latest execution date?
The media buzz around Georgia's latest scheduled execution date for Troy Davis is increasing, as highlighted by these new piece:
- From the Columbus Ledger-Enquirer here, "Columbus NAACP chapter plans rally to try to halt Georgia death row inmate Troy Davis’ execution"
- From the Savannah Morning News here, "Barr: Troy Davis merits clemency"
- From the Washington Post here, "Swell of clergy rallies around Ga. death row inmate"
Importantly, as detailed in this Atlanta Journal-Constitution piece from last week, "Davis has been granted a third clemency hearing by the state Board of Pardons and Paroles, which will hear his renewed claims of innocence two days before his scheduled execution." Davis' execution is now scheduled for 7 pm on Sept. 21, but Georgia's "parole board will hear presentations from Davis' legal team and prosecutors on Sept. 19." Importantly, though this "parole board denied Davis' clemency request in September 2008," as of now "the five-member board has three new members."
Not surprisingly, traditional opponents of the death penalty are growing ever more vocal in their call for Davis to receive clemency based on enduring questions about his guilt. And this snippet from the commentary by former Georgia federal prosecutor Bob Barr highlights why I believe truly shrewd death penalty supporters would be wise to root for Davis to be granted clemency this time around:
I am a longtime supporter of the death penalty. I make no judgment as to whether Davis is guilty or innocent. And surely the citizens of Savannah and the state of Georgia want justice served on behalf of Officer MacPhail.
But imposing an irreversible sentence of death on the skimpiest of evidence will not serve the interest of justice. By granting clemency, the Georgia Board of Pardons and Paroles will adhere to the most sacred principles of American jurisprudence, and will keep a man from being executed when we cannot be assured of his guilt.
Just as the innocence of (now executed) Cameron Todd Willingham has become an article of faith for death penalty abolitionists, the innocence of Troy Davis will always be assumed by death penalty opponents. Consequently, Davis' ultimate execution would quickly become another loud talking point in abolitionist advocacy, and Davis' case has additional salience because of his race and the hard-to-dispute reality that his factual guilt can at least reasonably be questioned. But if Davis is granted clemency, then his case then becomes a talking point for death penalty supporters who are often eager to assert that this punishment will not be used "when we cannot be assured of [a defendant's] guilt."
"Prison work crews cut in cost-savings move"
The title of this post is the headline of this new USA Today article, which gets started this way:
Prison inmate labor programs, long considered a lower-cost option for needed public work projects such as clearing debris and cutting weeds on highways, are increasingly facing elimination or reduction because of budget issues.
Michigan and North Carolina are the latest to completely eliminate their programs, and Florida reduced its program by nearly 40% this year.
Michigan lawmakers stopped funding the Michigan Department of Corrections' 15 crews this year, even as more requests for inmate labor poured in from communities. "We actually stopped all but one work crew (which the requester fully funded) in September 2010," according to Michigan Department of Corrections spokesman John Cordell.
It cost Michigan taxpayers $10 million last year to operate the crews. Most of that cost was for transportation and supervision of the inmates, he said. Cordell said there are plans to reinstate inmate crews Oct. 1, but with a major difference. "We will have to charge the entities who use the crews," Cordell said. "We just can't subsidize the program anymore."
September 13, 2011
Is it constitutional to ban sex offenders from public libraries?
The (challenging?) legal question in the title of this post is prompted by this local story out of Tennessee, which is headlined "Knox bans registered sex offenders from county libraries." Here are the details:
People listed on the Tennessee Sex Offender Registry are banned from visiting county libraries under an executive order issued Monday by Knox County Mayor Tim Burchett.
He said they can still use the county library system's online services and have a proxy check out and return materials on their behalf. But, they face arrest if caught inside the buildings. "I just don't want them anywhere around our kids," Burchett said. "The ultimate decision is how we pursue it. I want to get out in front of this. There's no need to toil around with it. I don't want them anywhere around our kids."
The administration said the library system, which has 19 locations, is the first of the state's big four metropolitan library systems to put such a policy in place. The county, Burchett said, is taking advantage of a state law that went into effect July 1 that gives public library directors the authority "to reasonably restrict the access of any person listed on the sexual offender registry."
Officials will compare a list of registered offenders to its 150,000 active cardholders and then mail them notices, advising them of the change. State law says that a sex offender who enters a library five days after the notice is mailed can be prosecuted for criminal trespass. In addition, the county also will post notices on the entrances to all its public library buildings.
Listed offenders on the state's registry include those convicted of sex crimes against children, rape, statutory rape, attempted rape, sexual battery, criminal attempt to commit statutory rape and solicitation to commit aggravated prostitution. "People will say they've paid their debts to society, but they've given some of those kids a life sentence," Burchett said. "(Some of the) kids have been abused and they carry it with them for the rest of their lives. And I don't want to give (the offenders) a chance to be anywhere near them again."
Knox County Sheriff Jimmy "J.J." Jones agreed, saying he was pleased with the new policy. "I applaud the state of Tennessee for putting tougher regulations on these dirt bags who prey on our children," he said. Officials say they can't recall an incident at the library that involved a sex offender, but communications manager Michael Grider said the Knoxville Police Department is investigating a complaint made roughly a month to six weeks ago....
Sixth Judicial District Public Defender Mark Stephens said Monday he doesn't question the county's purpose of ensuring public safety, but he questioned whether the move was constitutional. "A regulation like this proposes too broad a ban to include people who impose no threat to library goers," he said. "A ban like this would have to be so narrowly tailored to avoid infringing on the rights of those people who don't present a risk, and the Knox County proposed ban doesn't meet that test."
Stephens said a New Mexico district court recently ruled that a similar ban in Albuquerque was unconstitutional. Additionally, he said courts have held that public libraries are limited public forums, which means the First Amendment protects peoples' rights to use them.
When asked whether the county's plan unfairly punished those whose crimes were not child-related, Burchett said: "Sometimes people plead down to lesser offenses. My main concern is protecting innocent people, and all we're doing is enforcing state law and going after it very aggressively. I don't know how you'd differentiate. The state can work that out."
"Bummer: Barack Obama turns out to be just another drug warrior"
The title of this post is the title of this lengthy and sharp new piece by Jacob Sullum, which is the cover story in the October 2011 issue of Reason magazine. This title provides an effective summary of the piece, and here are some snippets from the piece's introduction and conclusion:
It is not hard to see how critics of the war on drugs got the impression that Barack Obama was sympathetic to their cause. Throughout his public life as an author, law professor, and politician, Obama has said and done things that suggested he was not a run-of-the-mill drug warrior....
[But] Obama’s drug policies ... by and large have been remarkably similar to his predecessor’s. With the major exception of crack sentences, which were substantially reduced by a law the administration supported, Obama has not delivered what reformers hoped he would. His most conspicuous failure has been his policy on medical marijuana, which is in some ways even more aggressively intolerant than George W. Bush’s, featuring more-frequent raids by the Drug Enforcement Administration (DEA), ruinous IRS audits, and threats of prosecution against not only dispensaries but anyone who deals with them. “I initially had high hopes,” says Marsha Rosenbaum, “but now believe Obama has abdicated drug policy to the DEA.”
It would be going too far to say that Obama has been faking it all these years, that he does not really care about the injustices perpetrated in the name of protecting Americans from the drugs they want. But he clearly does not care enough to change the course of the life-wrecking, havoc-wreaking war on drugs....
We know how Obama responds when the question of marijuana legalization comes up in public: He laughs. The highest-rated questions submitted for his “virtual town meeting” in March 2009 dealt with pot prohibition. “I don’t know what this says about the online audience,” Obama said with a smirk, eliciting laughter from the live audience, “but…this was a fairly popular question.”
Obama’s dismissive attitude was especially galling in light of his own youthful pot smoking, which he presents in Dreams From My Father as a cautionary tale of near-disaster followed by redemption. “Junkie. Pothead,” he writes. “That’s where I’d been headed: the final, fatal role of the would-be black man.” Judging from the reports of friends interviewed by The New York Times in 2008, Obama exaggerated his brush with addiction for dramatic effect. More important, he has never publicly acknowledged the plain truth that people who smoke pot rarely become junkies or suffer any other serious harm as a result — unless they get caught.
As Richard Nixon’s National Commission on Marihuana and Drug Abuse pointed out when Obama was all of 10 years old, the biggest risk people face when they smoke pot is created by the government’s attempts to stop them. In 1977, when Obama was a pot-smoking high school student in Honolulu, President Jimmy Carter advocated decriminalizing marijuana possession, telling Congress that “penalties against possession of a drug should not be more damaging to an individual than the use of the drug itself.”
That is hardly a radical position. Polls indicate that most Americans think pot smokers should not be treated like criminals...
In New York City, where marijuana arrests have increased dramatically since the late 1990s, blacks are five times as likely to be busted as whites. The number of marijuana arrests by the New York Police Department (NYPD) from 1997 through 2006 was 11 times the number in the previous 10 years, despite the fact that possession of up to 25 grams (about nine-tenths of an ounce) has been decriminalized in New York....
Obama attended Columbia University in the early 1980s, well before the big increase in marijuana arrests that began a decade later. There were about 858,000 pot arrests nationwide in 2009, more than twice the number in 1980, and the crackdown has been especially aggressive in New York City under Mayors Rudolph Giuliani and Michael Bloomberg (another former pot smoker). “The odds are not bad,” observes Ethan Nadelmann, “that a young Barry Obama, using marijuana at Columbia, might have been arrested had the NYPD been conducting the number of marijuana arrests then that it is now.”
A misdemeanor marijuana conviction could have been a life-changing event for Obama, interrupting his education, impairing his job prospects, and derailing his political career before it began. It would not have been fair, but it would have spared us the sorry spectacle of a president who champions a policy he once called “an utter failure” and who literally laughs at supporters whose objections to that doomed, disastrous crusade he once claimed to share.
Though I had never expected the Obama Administration to seek a withdrawal from the "war on drugs," I was hoping this Administration might seek to foster a broader national conversation about the obvious costs the traditional federal approaches to fighting a "war" that seems impossible to really "win" or complete. In addition to being disappointed that the Obama Administration seems eager to avoid such a conversation, I am saddened that this area of federal law and policy appears to be the only one in which President Obama's opponents are silent with any criticisms.
Some recent and older related posts on the modern politics of the drug war:
- Top House Republican complaining that Obama administration is not fighting drug war hard enough
- Is the time right for candidate Ron Paul to lead withdrawal from the "war on drugs"?
- New poll reports that large majority of Americans consider "War on Drugs" a failure
- Effective commentary concerning political discussion of pot policy and the drug war
- Newt Gingrich says "criminal justice system is broken, and conservatives must lead the way in fixing it"
- A list of themes for stopping drug war "madness"
- When and how will state GOP leaders start cutting expensive criminal justice programming?
- Can GOP "Pledge to America" be read to suggest drawing down federal involvement in the drug war?
- Green tea party: will Glenn Beck or Sarah Palin or other professed liberty lovers support ending pot prohibition in California?
- What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
Will a more diverse federal bench result in a more diverse sentencing jurisprudence?
The question in the title of this post is prompted by this new AP article, which is headlined "Obama increases number of female, minority judges," and begins this way:
President Barack Obama is moving at a historic pace to try to diversify the nation's federal judiciary: Nearly three of every four people he has gotten confirmed to the federal bench are women or minorities. He is the first president who hasn't selected a majority of white males for lifetime judgeships.
More than 70 percent of Obama's confirmed judicial nominees during his first two years were "non-traditional," or nominees who were not white males. That far exceeds the percentages in the two-term administrations of Bill Clinton (48.1 percent) and George W. Bush (32.9 percent), according to Sheldon Goldman, author of the authoritative book "Picking Federal Judges."
"It is an absolutely remarkable diversity achievement," said Goldman, a political science professor at the University of Massachusetts at Amherst, who is only counting judges once, even if they fit more than one category.
Some related older and newer posts on judicial appointments and sentencing jurisprudence:
- Noticing the biggest bias in the federal judiciary
- Should President Obama practice ageism when making judicial nominations?
- Does the ages of federal judges impact sentencing jurisprudence and decision-making?
- Why federal sentencing reformers must focus on the USSC and lower courts
- Judging, politics, sentencing and elections
California to "start releasing thousands of female inmates who have children"
The quote in the title of this post is drawn from the lead of this new Los Angeles Times article, which is headlined "Prison officials are set to let some female inmates out early; Women who have children and are convicted of 'non-serious, non-sexual' crimes could start going home as early as next week as the state seeks to relieve overcrowding." Here is how the article begins:
Drastically redefining incarceration in California, prison officials are about to start releasing thousands of female inmates who have children to serve the remainder of their sentences at home.
The move, which could affect nearly half the women held in state facilities, will help California meet a court-imposed deadline to make space in its chronically overcrowded prisons. The policy could be extended to male inmates in the near future, administrators said Monday.
Mothers who were convicted of non-serious, non-sexual crimes — and have two years or less remaining on their sentences — could start going home as early as next week, prisons spokeswoman Dana Toyama said. The women would be required to wear GPS-enabled ankle bracelets and report to parole officers.
The program is "a step in breaking the intergenerational cycle of incarceration," state prisons Secretary Matthew Cate said, arguing that "family involvement is one of the biggest indicators of an inmate's rehabilitation."
But skeptics abound, including prosecutors and crime victims' advocates who opposed the idea as it worked its way through the Legislature last year. "If they were such great mothers to begin with, they never would have committed the heinous crime that got them sent to state prison," said Harriet Salarno, founder of Sacramento-based Crime Victims United. In many cases, the children might be better off in foster care, Salarno said.
Reuniting families clearly was not the only consideration that led prison officials to opt for home incarceration. In May, the state lost a U.S. Supreme Court appeal of a ruling that had found California's prison overcrowding and the resulting lack of access to medical care amounted to cruel and unusual punishment.
"Prisons Do Not Reduce Recidivism: The High Cost of Ignoring Science"
One of the major justifications for the rise of mass incarceration in the United States is that placing offenders behind bars reduces recidivism by teaching them that “crime does not pay.” This rationale is based on the view that custodial sanctions are uniquely painful and thus exact a higher cost than noncustodial sanctions. An alternative position, developed mainly by criminologists, is that imprisonment is not simply a “cost” but also a social experience that deepens illegal involvement.
Using an evidence-based approach, we conclude that there is little evidence that prisons reduce recidivism and at least some evidence to suggest that they have a criminogenic effect. The policy implications of this finding are significant, for it means that beyond crime saved through incapacitation, the use of custodial sanctions may have the unanticipated consequence of making society less safe.
Will any scheduled executions in Texas soon become a political talking point?
As detailed in this UPI article, "Texas is to execute two inmates this week, including one who now has a prosecutor trying to get the sentence stayed because of racially tinged testimony." Here are the details:
Linda Geffin, among the prosecutors in the 1997 trial of Duane Buck and now a supervisor in the Harris County attorney's office, said she now agrees with his attorneys, who argued the sentencing hearing was unfair because of the testimony, the Austin American-Statesman reported.
Buck, who is black, was among seven death-row inmates who then-Texas Attorney General John Cornyn said in 2000 had been unfairly sentenced to death because of improper racial testimony. Six of the inmates were again given the death penalty after receiving new sentencing trials but Buck, who is scheduled to be executed Thursday for a 1995 Harris County double murder, was not afforded a re-sentencing....
In the other death-penalty case, Steven Woods, 31, is to die Tuesday for the deaths of a man and a woman who had their throats slashed and had been shot repeatedly near a Denton County golf course in 2002, the Forth Worth Star-Telegram reported.
Unless the U.S. Supreme Court intervenes, Woods is to be executed by lethal injection in Huntsville for the killings of Ronald Whitehead, 21, and Bethena Brosz, 19. It would be the 10th execution this year in Texas.
Recent debates and subsequent poll numbers suggest that the large number of Texas executions under Governor Rick Perry's watch is a kind of merit badge so far serving Gov. Perry well in his pursuit of the GOP nomination for president in 2012. And yet, as last night's GOP debate revealed, Gov. Perry's rivals are all eager to take shots at the current GOP front-runner.
Especially with the always sensitive issue of race in the mix in the Buck case, I wonder if anyone will try to make a national political issue of his scheduled execution this week. In addition, with high-profile condemned inmates like Troy Davis in Georgia and Henry Skinner in Texas making innocence claims as their execution dates approach, I suspect these issues will continue to garner (too?) much attention as long as Gov. Perry is a prominent candidate for the GOP nomination.
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"
- "Behind the Death Penalty Cheers"
"The Misuse of Life Without Parole"
The title of this post is the headline of this editorial appearing in today's New York Times. Here are excerpts:
The Supreme Court ruled last year that it is cruel and unusual punishment to sentence a juvenile to life without parole when the crime is short of homicide. In the majority opinion, Justice Anthony Kennedy noted that life without parole shares “some characteristics with death sentences that are shared by no other sentences” in altering “the offender’s life by a forfeiture that is irrevocable.”
The sentence is no less severe when applied to adults. Yet life without parole, which exists in all states (Alaska’s version is a 99-year sentence), is routinely used, including in cases where the death penalty is not in play and where even an ordinary life sentence might be too harsh.
From 1992 to 2008, the number in prison for life without parole tripled from 12,453 to 41,095, even though violent crime declined sharply all over the country during that period. That increase is also much greater than the percentage rise in offenders serving life sentences.
The American Law Institute, a group composed of judges, lawyers and legal scholars, has wisely called for restricting the use of the penalty to cases “when this sanction is the sole alternative to a death sentence.”... The overuse of the sentence reflects this excessively punitive era. But as the institute’s report explains, an “ordinary” life sentence is “a punishment of tremendous magnitude” whose “true gravity should not be undervalued.” In the past 20 years, the average life term served has grown from 21 years to 29 years before parole.
Interestingly, even the institute’s approach to sentencing reflects the times. In 1962, when it last revised its Model Penal Code on sentencing, which is a blueprint for states to follow in shaping their laws, the group called for prisoners sentenced to life to be considered for parole after 1 to 10 years. Now the group calls for them to be reviewed by a judge within 15 years, with the expectation that many will “never regain their freedom.”
Still, the group’s view about the proper relationship between crime and punishment is dispassionate and correct. A fair-minded society should revisit life sentences and decide whether an offender deserves to remain in prison or be released on parole. And a fair-minded society should not sentence anyone to life without parole except as an alternative to the death penalty.
September 12, 2011
Lawyers spar in briefing before Rajaratnam's sentencing for insider trading
This New York Times piece, headlined "Rajaratnam Lawyers Call Sentence Request ‘Grotesquely Severe’," reports on the last round of briefing before the scheduled sentencing of convicted trader Raj Rajaratnam. Here are some details:
Federal prosecutors and lawyers for Raj Rajaratnam filed their second round of sentencing briefs on Friday, setting the stage for later this month when a federal judge will announce the former hedge fund manager’s prison term.
Mr. Rajaratnam is set to appear before Judge Richard J. Holwell in Federal District Court in Manhattan on Sept. 27. The government has requested a term of 19 and a half to 24 and a half years. “Rajaratnam is arguably the most egregious offender of the insider trading laws prosecuted to date,” federal prosecutors said in their court filing.
Defense lawyers said the government is overreaching by requesting a “grotesquely severe” sentence. “The government asks the court to ignore Raj Rajaratnam the human being and to sentence a caricature instead,” Mr. Rajaratnam’s lawyers said. “This court’s role is not to validate a prosecutorial public relations effort, nor is it to single out one man to serve as the whipping boy for Wall Street misdeeds.”
In May, a jury convicted Mr. Rajaratnam, the co-founder of the Galleon Group hedge fund. He was found guilty of generating illegal gains of $64 million by trading on confidential information about publicly traded companies including Intel and Goldman Sachs.
Mr. Rajaratnam’s lawyers at Akin Gump Strauss Hauer & Feld made several arguments in asking Judge Holwell for leniency. They said that the illegal trades in question accounted for only 1 percent of his trading activity. They argue that the sentence is disproportionate to the sentences imposed in other insider trading cases, and greater than the average sentence for violent crimes, including kidnapping and sexual abuse. They also insist that the government’s requested sentence “would guarantee Mr. Rajaratnam’s death in prison” because of the 54-year-old’s medical issues.
The government urged Judge Holwell to reject the arguments presented by Mr. Rajaratnam’s lawyers. On the issue of the Mr. Rajaratnam’s health, the government challenged the defense to disclose exactly what medical issues would justify a lenient sentence.
I found the defense reply sentencing memo, which runs more than 50 pages, available at this link. I cannot yet find a link to the Government's filing.
"One Book, Two Sentences: Ex Post Facto Considerations of the One-Book Rule after United States v. Kumar"
The title of this post is the title of this new piece by Andrew Adams appearing now on SSRN. The piece discusses what I view as one of the most challenging enduring doctrinal issues still unresolved in the wake of Booker, and here is the abstract:
This article addresses the ongoing discord among the Courts of Appeals with respect to the implications of the U.S. Sentencing Guidelines’ “One-Book Rule” and its constitutionality under the Ex Post Facto Clause. A recent decision by the Second Circuit, United States v. Kumar, produced the most extreme position in a three-way split among the circuits by holding that the application of a single Guidelines manual to multiple offenses -- even offenses predating that manual’s publication -- is always permissible under the Ex Post Facto Clause. The issue brings together two separate and difficult areas of jurisprudence applying the Ex Post Facto Clause: the permissibility of allowing one crime to “trigger” heightened punishments for previous crimes, and the ongoing circuit split over the Ex Post Facto Clause application to the Sentencing Guidelines.
The article explores the history of the application of the Ex Post Facto Clause in order to establish that, contrary to the assertions of courts and commentators, the single concern of the Ex Post Facto Clause has been putting people on notice of the consequences of their actions. The article then argues that Kumar, though an outlier amongst the circuits, was indeed correct in its constitutional analysis of the One-Book rule. Nevertheless, the same constitutional concepts at work in Kumar ultimately imply that the One-Book rule runs counter to the goals of the Sentencing Guidelines themselves -- uniformity of sentencing --even if its application is ultimately constitutional. The article concludes by advancing two potential resolutions to the problems left unresolved by Kumar, the Courts of Appeals, or the Sentencing Guidelines themselves.
Police and prosecutors lamenting juve crime wave in Florida
Any and everyone down in Florida (whether for a football game or a GOP debate tonight) apparently needs to be on the watch for teenage career criminals, at least according to this recent South Florida Sun-Sentinel report headlined "Hard-core juveniles at heart of property crime wave." (Hat tip: The Crime Report). Here is the start of the report:
A new type of career criminal is emerging — neighborhood teens. They're breaking into cars, burglarizing homes and robbing people on the street.
Police and prosecutors across South Florida say they are seeing hard-core youth committing burglaries and robberies over and over again and that they are largely helpless to stop what's happening. Some have been arrested dozens of times in the span of their short life, often while they are on probation or awaiting trial for earlier charges.
In just Fort Lauderdale, a Police Department crime analysis shows that a small group of teens — just 50 youths; some as young as 13 — were charged with almost 700 crimes last year. They accounted for more than half of all the juvenile arrests in the city. Police brass believe the youths are partly to blame for a recent increase in property crime.
Fort Lauderdale is not alone. Prosecutors in Palm Beach County were recently surprised when a youth who faced more than a dozen burglary and property crime charges was sentenced to about six months in a state residential treatment facility.
Then, there was the case last week of a 15-year-old from Pompano Beach. He was charged with robbing two people, punching a behavioral specialist at school and throwing rocks at cars and houses. Despite a rap sheet that included previous cases of assault and theft, the teen was sentenced to probation and 80 hours of community service.
"We aren't talking about kids arrested for the first time and whether they can be rehabilitated," Fort Lauderdale Police Chief Frank Adderley said. "These are prolific offenders, and there is no incentive for them to stop. They have no fear and know the justice system is a revolving door."
The concern comes even though Florida has long had a get-tough reputation on juvenile offenders. The state has come under intense criticism for incarcerating high numbers of youths and doling out more life sentences to juveniles for non-murder cases than all other states combined.
Still, prosecutors in Broward and Palm Beach counties say teens who commit property crime usually are sentenced to probation. At most, they are sent to a residential treatment facility for about six months. Juveniles also cannot be held for more than 21 days while awaiting trial regardless of the charges or their history and then have limited state supervision.
Dare one even suggest that this new Floridian juve crime problem is, perhaps just in some very indirect way, somehow a consequence of the Supreme Court's ruling in Graham prohibiting LWOP for even repeat juve nonhomicide offenses? I would be very skepitcal of anyone making such a causal claim, but it is hard not to think of the Graham Eighth Amendment ruling in light of this press report.
Will tonight's Tea Party GOP Debate discuss costly government programs like the drug war and mass incarceration?
I am genuinely excited and intrigued that tonight's scheduled GOP debate in Florida is co-sponsored by the Tea Party Express. (It is also co-sponsored by CNN, which has me decidedly less excited and intrigued.) Though Social Security and health care and the economy are sure to be the main topics for discussion, I am (naively?) hopeful that the tea party involvement might prompt at least a little bit of criminal justice discussion.
This debate page on the Tea Party Express website provides notable context for its sponsorship and involvement (with my own emphasis added):
The Tea Party Debate is a truly historic, first-of-its-kind event that will bring conservative candidates for President together to discuss tea party principles, and determine which candidate has the best solutions to lead the United States of America and her people into greater freedom and prosperity.
The debate demonstrates that the tea party, which began as a small grassroots movement, has grown tremendously in size and influence to become a powerful force in American politics. The Tea Party Debate will focus only on the core principles and values of the tea party movement: limited government, free markets, and fiscal responsibility....
The Tea Party Debate has tremendous significance because it is powered by engaged tea party activists. The Tea Party Debate will be coordinated by Tea Party Express and CNN, with participation and involvement from co-host local tea party groups in every state across the country. The questions asked of the candidates will all come from the tea party groups and their members — to ensure the debate is about the issues that matter most to the tea party movement.
The poorly-considered and poorly-delivered question about the death penalty from Brian Williams to Governor Rick Perry at the last debate (lamented here) has me exicted to learn that tea party groups — and not the "lamestream" media — are to ensure questions in this debate focus on the "core principles and values of the tea party movement: limited government, free markets, and fiscal responsibility." And yet, as the title of this post highlights, I am unsure (but perhaps foolishly hopeful) that at least a few debate questions tonight might reflect the application of these Tea Party "core principles" to our modern, massive and costly, government-run criminal justice systems and programs.
Regular readers know that I believe that anyone with a truly serious and sustained commitment to "limited government, free markets, and fiscal responsibility" must start asking a number of tough questions about huge federal and state government spending on the drug war and mass incarceration. Here, as just a couple of examples, is how these tough questions might find expression in the tonight's Tea Party Debate:
Do you support the bill introduced by Ron Paul and Barney Frank to get the federal government out of the marijuana regulation business (basics here)? Would you sign or veto such a bill as president if it came to your desk?
Do you consider the modern "War on Drugs" — a federal government program started by Richard Nixon and increasingly funded at the federal level by every President since — to be a classic example of a failed big government program or a notable example of big government success?
According to a Pew Center report in 2009, state criminal correction spending has quadrupled in the past two decades, outpacing budget growth in education and transportation (basics here). Meanwhile, the Justice Department recently wrote to the US Sentencing Commission about federal prison spending and overcrowing (basics here). Does this data concern you and what do you think this nation's president can or should do about the pure economic costs to taxpayers of modern mass incarceration?
Though I would love to hear the GOP candidates' response to all of these questions, I will be pleasantly surprised if even a single question about the drug war or big-government criminal justice spending comes up tonight. If there are not any such questions during the Tea Party Debate, I will continue to wodern if the "core principles and values of the tea party movement" really are "limited government, free markets, and fiscal responsibility."
Some recent and older related posts:
- Ron Paul and Barney Frank introduce bill to let states set pot policy
- 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
- 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"
- Path started to place pot legalization on Colorado ballot in 2012
- 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?"
- Might Sarah Palin's sensible points about pot get Tea Party types to push for sensible drug reforms?
- Thoughtful academic thoughts on ending marijuana prohibitions
- Green tea party: will Glenn Beck or Sarah Palin or other professed liberty lovers support ending pot prohibition in California?
A Fifth Circuit reminder that not all federal defendants like the guidelines being merely advisory
One (of many) under-discussed aspects of the post-Booker system is that, in percentage terms, the number of above-guideline sentences have gone up more than the number of below-guideline sentences since the guidelines became adviosry. Roughly speaking, though the number of below-guideline sentences have increased about 50% post-Booker, the number of above-guideline sentences have increased nearly 100% post-Booker.
Though the absolute number of above-guideline sentences remain relatively small, the decision late last week from the Fifth Circuit in US v. Pizzolato, No. 10-30729 (5th Cir. Sept. 9, 2011) (available here), provides a useful reminder that not all federal defendants benefit from the guidelines now being merely advisory. Here is how the Pizzolato opinion starts:
Defendant-Appellant Matthew B. Pizzolato pleaded guilty to multiple crimes related to his conduct in running a fraudulent “Ponzi” scheme. The plea agreement recommended an applicable sentencing range of 151 to 188 months under the Federal Sentencing Guidelines (the “Guidelines”). The district court disregarded the plea agreement’s recommendation and imposed the statutory maximum sentence of 360 months. Appellant argues that the Government breached the plea agreement by providing the district court with facts and arguments supporting a longer sentence than the parties agreed upon. We find no merit to defendant’s arguments and affirm.
September 12, 2011 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (2) | TrackBack
An interesting update on Senator Webb's (so-far failed) last crusade
It has been quite some since I blogged about Senator Jim Webb's proposal for creating a national crime commission (which, as reported here, was introduced as a Senate bill way back in March 2009). I had assumed that Senator Webb's pending retirement was one of many reasons why the Senate was likely to pass Webb's bill. However, this new Newsweek piece, headlined "Jim Webb's Last Crusade," not only explains the genesis of Webb's proposal but also suggests it may still have some life in it:
“The problem with Congress is that you can get stalled solving any one small aspect of this problem,” Webb says. “Crack alone took 16 years.” At the same time, he reasoned that sweeping legislation would polarize rather than galvanize, and would become a target for Republicans and an albatross for Democrats. Webb settled, instead, on a stepping-stone strategy: a bipartisan panel tasked with conducting a head-to-toe review of the U.S. criminal-justice system and then recommending cost-effective, data-driven, state-based reforms. Asked about the obvious objection — that legislators will simply ignore whatever inconvenient truths his blue-ribbon board exhumes — Webb is unmoved. “We’re not looking for a debating society here,” he snaps. “This is a $14 million bet. And the alternative — addressing one piece at a time — doesn’t work.”
For the past two and a half years, Webb’s legislation has lingered in Senate limbo; Oklahoma Sen. Tom Coburn blocked the initial version, and a later iteration was included in last year’s failed omnibus spending package. (A mirror bill passed the House in 2010.) But time may be on Webb’s side. Initially, conservatives “assumed this was all about drugs,” the senator says, “so there was hesitation.” As the recovery faltered, however, Republicans began to realize that prison spending, which is the fastest-growing state budget item behind Medicaid, was ripe for a trim. As a result, influential GOP governors such as Bobby Jindal and Mitch Daniels are now working to reduce recidivism, soften sentences, and save money in their home states, while Right on Crime, a new conservative group backed by Newt Gingrich, Jeb Bush, and Grover Norquist, is championing reform on the national stage. “People who would’ve been skeptical have gotten on board,” says Webb, noting that he has convinced Republican Sens. Lindsey Graham, Jeff Sessions, and Orrin Hatch to support his bill. “And deficits brought them in.” The fact that America’s violent-crime rate has continued to decline during the recession — it’s now at its lowest level in 40 years — only helps Webb’s cause, as does his looming retirement. “There was a lot of concern among Republicans about whether passing this bill would help me win reelection,” he says, grinning. “So that’s off the table.”...
Webb believes he has “two thirds” of the Senate on his side, and that his only remaining roadblock is “getting the bill to the floor.” He’s probably right: so far, his plan has earned the backing of 39 cosponsors and more than 100 outside organizations, including the National Sheriff’s Association, and President Obama has been “supportive.” (In February they “discussed doing it as a presidential commission” should the bill fail.) But even if the National Criminal Justice Commission Act were to pass tomorrow, its author would leave office long before any recommendations rolled in. The timing suggests a last crusade of sorts: an old soldier’s final fight. On his way out of the Fairfax facility, Webb dismisses this interpretation with a characteristic grunt. “I don’t do last acts,” he says. But it is clear, as he continues, that criminal-justice reform has, for him, become something larger than just another piece of legislation. “I didn’t do this for political reasons,” Webb says. “I’m a novelist, basically. What do you do with a novel? You take a complex issue and you think your way through it. I’ve taken on the same types of issues as a senator and worked to sort them out. This is one that needs to be done.”
Some related older posts:
- House approves creation of National Criminal Justice Commission
- "A Blue-Ribbon Look at Criminal Justice"
- Senator Webb's bill for criminal justice reform commission getting some House attention
- "Senate Committee Passes National Criminal Justice Commission Act of 2009"
- Senator Jim Webb takes his concerns about prison nation to the next level
- NY Times editorial backs Senator Jim Webb's reform plans
September 11, 2011
Open thread for reflections on crime and punishment a decade after 9/11/01
I am inclined to call the terror attacks of 9/11 the worst and most horrible of crimes in US history. And yet I know it remains somewhat controversial to call the mass murder conspiracy that was carried out 10 years ago today merely a "crime" rather than something else. However, other than a "terror attack," I am not sure what label provides an accurate description of the mass murder that too place other than horrific crime.
Whatever one's opinion on this issue of semantics, I know that many readers surely have thoughts today about US crime and punishment. These thoughts may be a reaction to, and/or are informed by, what happened 10 years ago and also US and international responses to this mass murder over the last decade.
My thoughts are too scattered and sad to justify a useful post on this topic or really on other topics on his day of remembrance. But if others have fitting thoughts to share, or perhaps just want a place to express their grief or their optimism, this post is intended to open a thread for discussion of these and related topics.