September 24, 2011
NJ appellate ruling limits new GPS monitoring of past sex offenders
As detailed in this local article, this past week a New Jersey "state appeals court ruled that forcing a sex offender convicted more than 20 years ago to comply with GPS monitoring rules that were enacted about four years ago violates his constitutional rights." Here are the basics:
In the 2-1 decision, the Appellate Division of Superior Court reversed a state parole board decision that required George C. Riley, a Tier III sex offender, to wear a GPS ankle bracelet. The court said the requirements of the monitoring program constituted a level of punishment that violates the constitutional provision barring retroactive laws.
“We conclude that although the Legislature's intention in enacting the Sex Offender Monitoring Act was civil and nonpunitive, the act is so punitive in effect that it violates the ex post facto clause,” Judges Stephen Skillman and Marianne Espinosa said in their decision.
In his dissent, Judge Anthony J. Parrillo said while the GPS monitoring may be more burdensome than the yearly registration requirements for sex offenders, “it does not rise to the level of a direct and punitive disability or restraint,” and is far less restrictive than the involuntary civil confinement some sex offenders are subject to upon completion of their prison terms.
“Simply put, the majority's constitutional tolerance of laws that register, publicize, monitor and indefinitely institutionalize sex offenders after completion of their criminal sentences cannot logically be reconciled with its avowed distaste for a rule requiring the most serious sex offenders, who remain free to live, work and walk wherever they please, to submit to a form of electronic surveillance,” he wrote.
Because the appellate decision was split, if the state Attorney General’s Office files an appeal, the case would automatically be heard by the state Supreme Court.
The lengthy majority ruling (running 30+ pages) and the dissenting opinion (running 20+ pages) are available at this link. I suspect the New Jersey Supreme Court will get asked to review this ruling, and I further expect this kind of technocorrections issue to get all the way to the US Supreme Court eventually.
"Should pardoned felons have gun rights?"
The title of this post is the headline of this front-page article from yesterday's edition of The Tennessean. Here is how the piece starts:
David Scott Blackwell has repaid his debt to society, by Georgia standards. He served five years in prison for selling drugs. He successfully finished his probation. He was even granted a full pardon by the Georgia Board of Pardons and Paroles, which would allow him to possess a gun in that state.
But should Blackwell, now living in Franklin, be able to own a gun here? Blackwell is suing the state after being denied a gun permit in Tennessee, arguing that the Georgia pardon fully restored his rights — even the right to bear arms. It’s a battle being played out in other states as well, as lawmakers in places such as Alaska and Oregon have mulled over laws to loosen firearms restrictions on felons who have had some of their rights restored.
It also has brought out unusually vocal support from Second Amendment advocates, who in prior years have been hesitant to support some felons’ rights to possess firearms. Among those advocates is the Tennessee Firearms Association, which downplays the fact that Blackwell is a convicted felon, instead painting it as a conflict between the constitutional powers of the pardon and Tennessee lawmakers who have written laws to restrict felons’ rights.
This marks the first time in the association’s 16 years that it has filed a brief in any lawsuit. “Georgia’s pardon system granted him a full pardon, and it specifically says he has the right to purchase and acquire guns,” said John Harris, a Nashville attorney who serves as the volunteer executive director for the Tennessee Firearms Association. “This is a question of, can the Tennessee General Assembly pass a statute that restricts the constitutional authority of another branch of the government?”
Blackwell failed to convince a Davidson County Chancery Court judge, but has appealed. The Tennessee Court of Appeals recently heard arguments and is considering the case. “The pardon restores constitutional rights — that’s what a pardon does,” said Blackwell’s attorney, David Raybin. “Therefore, it restores his right to a firearm. That’s it, in its simplest terms.”
But the state is opposing Blackwell, saying laws passed by the Tennessee legislature prohibiting felons from possessing firearms apply to those whose rights have been restored. “It is reasonable for the legislature to determine that felony drug offenders, even those who subsequently receive a pardon, are likely to misuse firearms in the future,” wrote the Tennessee Attorney General’s Office. “This is due to the well-known connection between guns and drugs.”
The newspaper has this accompanying on-line poll asking whether "a pardoned ex-convict who is allowed to own fire arms in Georgia [and] now lives in TN [should] be allowed to own a gun in TN?". With just under 500 votes cast as of this writing, the vote has YES at 47%, NO at 45%, and a remaining 8% as Undecided. (I voted YES in part because I suspect a non-violent offender who has secured a pardon is probably less dangerous and less likely to misuse a gun than an average citizen.)
September 23, 2011
Ohio board recommends clemency for murderer based on his "deprived history"
As detailed in this new local article, which is headlined "Parole board recommends governor spare life of convicted killer," the "Ohio Parole Board today unanimously recommended to Gov. John Kasich that he spare the life of convicted killer Joseph Murphy of Marion." Here are the details:
By an 8-0 vote, the board concluded that Murphy, 46, should not be executed on Oct. 18 for the 1987 robbery and murder of Ruth Predmore, a 72-year-old widow from Marion. The board said Murphy’s “deprived history is not one previously seen” in Ohio capital punishment cases and that his abuse was “chronic and consistent from his own family."
“There is no evidence of consistent or meaningful love or support shown to this applicant during his entire existence,” the board concluded.
Kasich can use his executive clemency power to stop the execution, but he is not bound to honor the recommendation. Murphy also has an appeal pending as part of the ongoing lawsuit challenging Ohio’s lethal injection protocol.
Former Ohio Supreme Court Justice Herbert Brown and Predmore’s niece were among the witnesses who urged the board to grant clemency during a seven-hour hearing held last week.
Borderline mentally retarded, Murphy was beaten by his parents, starved, tied to a bed, raped and on one occasion left in a burning house. He spent time in a dozen mental hospitals and institutions before committing the crime that sent him to Death Row. His public defender attorneys noted that the life without parole sentencing option was unavailable when Murphy was tried and convicted.
Marion County Prosecutor Brent Yager and Brenda Leikala, of the Ohio attorney general's office argued that Murphy's upbringing, while tragic, did not outweigh the brutal circumstances of Predmore’s murder.
While robbing Predmore at knifepoint in her home on the night of Feb. 1, 1987, Murphy slashed the 5-foot, 120-pound woman from ear-to-ear, cutting so deep that he severed her jugular vein, esophagus and nicked her spinal cord. While his victim bled to death on the floor, Murphy stole her purse, credit cards, coat and a bowl of loose pennies.
Split Ninth Circuit affirms huge upward departure based on uncharged murder
A remarkable case produces today another remarkable reasonableness review outcome via a split Ninth Circuit that affirms a way above guideline sentence based on an uncharged murder. Here is how the majority opinion in US v. Fitch, No. 10-10607 (9th Cir. Sept. 23, 2011) (available here), gets started:
David Kent Fitch was convicted by a jury of nine counts of bank fraud, two counts of fraudulent use of an access device, two counts of attempted fraudulent use of an access device, two counts of laundering monetary instruments, and one count of money laundering. The applicable Sentencing Guidelines range was 41-51 months. At sentencing, however, the district judge found by clear and convincing evidence that Fitch had murdered his wife, and that her death was the means he used to commit his crimes. Relying on that finding, he imposed a sentence of 262 months.
Fitch appeals his sentence, arguing that the district court committed procedural error and that, in any event, its sentence was substantively unreasonable. Because Fitch has never been charged with his wife’s murder, his sentence is a poignant example of a drastic upward departure from the Guidelines range — albeit below the statutory maximum—based on uncharged criminal conduct. We have not had occasion to address a scenario quite like this, but are constrained to affirm.
Here is how the dissent concludes its opinion:
We simply do not know any of the circumstances of Bozi’s disappearance. We know that she has disappeared and that Fitch immediately exploited her disappearance for his own benefit. While Fitch may indeed have been played a causative, or a concealing, role in Bozi’s disappearance, the record contains no evidence that sheds light on the manner of his involvement or the degree of his involvement. There is certainly no clear and convincing evidence of premeditated murder. The district court’s finding is simply not supported by the record. The substantial departure applied pursuant to § 5K2.1 was therefore an abuse of discretion. Accordingly, I respectfully dissent.
Lots and lots of notable death penalty headlines and commentary
The media continues to buzz a lot about the Troy Davis case and execution; meanwhile lots of other death penalty developments continue to unfold throughout the United States. Here is just a sampling of some of the capital news and commentary that caught my eye this morning from a variety of sources:
From the New York Times here, "In Death-Penalty Debate, Execution Offers Little Closure"
From CNN here, "Troy Davis and constitutional virtues"
From the New York Times op-ed page here, "Silence from the Court"
From the Huffington Post here, "From Warren McCleskey to Troy Davis, History Repeats"
From Technorati here, "Anonymous Plots Revenge Against Georgia For Troy Davis
From the National Journal here, "Alec Baldwin and Michelle Malkin Both Lose Troy Davis Twitter Fight"
From CNN here, "How does a Christian support the death penalty?"
From FoxNews here, "Doctors and Death Penalty Cases"
From Reuters here, "Alabama carries out third U.S. execution this week"
From the AP here, "Georgia sets execution date for Albany man"
From the AP here, "Lawyers Seek Details on Ohio Executioner's Cancer"
From the AP here, "Texas prisons end special last meals in executions"
Should there be specialized criminal courts for older teens?
The question in the title of this post is prompted by this lengthy and fascinating article from the New York Law Journal, which is headlined "Lippman Urges Increased Age for Adult Prosecution of Teens." Here are excerpts:
Chief Judge Jonathan Lippman yesterday said that within the next three months he will establish adult criminal court parts exclusively dedicated to handling cases of 16- and 17-year-old offenders in an effort to demonstrate that the age of criminal responsibility can safely and economically be raised.
In those courts, specially trained judges will bring a Family Court/rehabilitation focus to cases involving non-violent teens. "The time has come" Judge Lippman said in an interview. "We have been studying this issue for 50 years and there is momentum for juvenile justice reform. We need an approach that is based on the best interests of the child and rehabilitation rather than an approach based on punishment and incarceration."
While an increase in the age threshold for adult crimes requires legislation, the court system can establish the experimental adult criminal parts on its own.
In a speech to the Citizens Crime Commission yesterday, Judge Lippman noted that New York is currently one of only two states—North Carolina is the other—that treat 16-year-olds as adult offenders, a policy that he said breeds "abuse and future criminality." He wants to increase that to 18 for youths who commit less serious crimes while not changing the statute under which 13-year-olds who commit murder and 14-year-olds who commit other violent felonies are adjudicated as adults.
The goal of raising the age threshold for adult crime, shared by many other advocates for juvenile justice reform, has proven elusive, but Judge Lippman said that now the "time is ripe." He has asked the New York State Permanent Sentencing Commission to prepare "on a fast-track basis" draft legislation in time for the 2012 legislative session, which begins Jan. 1.... "While it may be that we'll need more Family Court judges and a heftier probation entity, and while there are things that will cost more money, in the long run and probably short run it will save money," Judge Lippman said.
State reports indicate that New York spends roughly $266,000 per child per year to house young offenders in detention facilities — and the return on that investment is an 89 percent recidivism rate for boys and an 81 percent recidivism rate for girls over a 10-year period. Statistics show that of the 57 boys who were not re-arrested by the time they turned 28, 12, or 21 percent, are dead.
Judge Lippman noted that the number of youths incarcerated in New York has dropped from more than 2,200 to fewer than 700 over the past few years. As of yesterday, the Office of Children and Family Services reported 605 teens being held in state facilities, 212 of which were incarcerated for committing adult crimes.
Judge Lippman credited Governor Andrew M. Cuomo with "clos[ing] down a number of these failed youth prisons." Still, he said, up to 50,000 16- and 17-year-olds are arrested annually in New York, mainly for minor crimes, and prosecuted as adults in criminal courts. "I think the question of the day for all of us in New York is this: Are 16 and 17-year-olds arrested for less serious crimes better served by going to Criminal Court or Family Court?"
"Jaycee Dugard sues feds, citing Garrido parole failures"
The title of this post is the headline of this local article out of California, which reports on a tort suit that seems likely to warm the heart of Supremecy Claus and perhaps (many?) others. Here are the basics from the start of the article:
Attorneys for Jaycee Dugard sued the federal government Thursday morning, lambasting federal authorities' decision to cut short Phillip Garrido's prison sentence and their lackluster enforcement of his parole in the 1990s, when he kidnapped Dugard.
The complaint seeks unspecified damages and parallels state proceedings that netted Dugard and her two daughters fathered by Garrido a $20 million settlement from the Legislature last year. Nancy Seltzer, Dugard's Los Angeles-based publicist, said the complaint was filed after Dugard was twice denied mediation by the federal government.
In the filing, Dugard's attorneys reveal that a 35-minute interview with parole officials led to Garrido's release from federal prison in 1987, just 11 years into a 50-year sentence for the rape and kidnapping of a South Lake Tahoe woman in 1976. From there, the filing states, the shortcomings in assessing Garrido's danger to the public only got worse.
Garrido kidnapped Dugard in 1991 and in the course of sexual slavery carried out over the next few years fathered two daughters while keeping them hidden in a backyard compound of tents, sheds and a soundproofed studio that doubled as Dugard's birthing room.
The complaint argues that parole checks and psychiatric evaluations downplayed disturbing spikes in his personality and numerous parole violations, and that federal authorities did not share their full records with state parole agents who took over his supervision in 1999.
Many of the assertions made in the complaint were acknowledged in a federal report on Garrido's parole supervision released this year as well as a state audit in November 2009, about two months after Dugard resurfaced near Antioch.
In a statement, Seltzer said Dugard is not seeking money for herself but rather her nonprofit, the JAYC Foundation, which is aimed at providing treatment and support for victims of abductions and traumatic experiences.
I would be very interested in reader reactions to Dugard's tort suit against the federal government. I am interested not only view about whether Dugard's extreme case justifies a tort award from the feds, but also the broader question of whether tort suits against criminal justice officials for any gross recklessness in supervising dangerous criminals ought to be more common.
Interestingly, because parole was formally abolished in the federal for all crimes committed after 1987, a tort judgment based on failings of federal parole officials in the Dugard case might have only limited long-term impact in the federal system. But, of course, lots of states still have parole mechanisms and this high-profile suit could, at least indirectly, have a big impact on their workings. In addition, federal officials still have some post-prison-release supervision responsibilities under the modern structure of federal "supervised release." A big ruling for Dugard also could, at least indirectly, have a big impact on this part of the modern federal sentencing system.
Notable state fraud ruling affirming 54-year sentence for white-collar offender
A helpful reader alerted me to an interesting opinion from the Indiana Court of Appeals in Reeves v. Indiana, No. 77A01-1012-CR-646 (Ind. Ct. App. Sep. 19, 2011) (available here), which rejects a state white-collar defendant's various complaints about his convictions and his sentence of 54 years of imprisonment for running what turned into a kind of faith-based Ponzi scheme. This discussion of the sentencing issues provide background on the nature of the crime and why the long punishment was upheld in Reeves:
Although Reeves's crimes were property crimes, they were not ordinary property crimes, resulting in staggering losses to thousands of victims: $13,149,000 lost by 2904 victims, at least some of whom had their retirement savings wiped out. Among the victims was Steven Duncan, who lost $600,000, money that was intended to fund his retirement. Duncan testified that the loss ruined his marriage and his life and that his current blindness might have been avoided had he been able to afford medical insurance. Reverend Roger Wright, who had invested his entire retirement savings in Alanar, lost it all, a total of $179,152. Rev. Wright, like many ministers, had not paid into the Social Security system and so was completely dependent on his retirement income, which is now gone. Indeed, a large percentage of Reeves's victims were elderly, a group he targeted.
Moreover, the trial court found, and the record indicates, that Reeves exploited the religion and faith of his victims. After the terms of a bond issue were finalized, Alanar would organize a “kickoff” night at the church in order to start selling bonds. Alanar's sales presentations at the kickoffs included reminding potential bondholders of their “Christian responsibility” to support the church by buying bonds.... Many of Reeves's victims trusted him because they believed him to be a Christian and considered the fact that they were investing with a Christian company when deciding whether to invest. In light of the very large number of victims, the vast amount of their losses, and the elements of cynical exploitation to Reeves's scheme, we consider his crimes to be very egregious.
While Reeves's lack of a prior criminal history and expressions of remorse do him some credit, it certainly should be noted that evidence presented at trial does not. Reeves testified that he felt there was nothing wrong with what he was doing at Alanar. Two Alanar employees, however, testified that they faced retribution when they began to understand the true workings of Alanar.... Reeves's reckless disregard for bondholders' money was also expressed by his decision to purchase Porsche Boxsters for his three sons as a bonus. While there are some redeeming aspects of Reeves's character, the very egregious nature of his crimes and the negative aspects of his character fully justify his enhanced and consecutive sentences. Reeves has failed to establish that his fifty-four-year aggregate sentence in inappropriate.
September 22, 2011
Hoping (perhaps foolishly, yet again) latest GOP debate addresses crime and punishment
As reported in this FoxNews piece, tonight's GOP debate is sponsored in part by Google and "more than 18,000 questions and 100,000 votes have been offered via text and videos on YouTube." A quick poke around this website reveals that more than a few folks have posed questions about legalizing marijuana, and I also found these interesting questions posed about incarceration policies and the drug war:
Instead of putting our tax dollars into prisons, why not put them into rehabilitation centers for those who get caught with drug possessions?
America has the largest prison population per capita of any country in the world. Do you believe that we are arresting too many people?
Would you back a law to make prison time mandatory for anyone that employs illegal aliens, no exceptions?
The Federal Government spends $500 per second on the war on drugs, adding to the 90% of federal prisoners incarcerated for non-violent crimes. This is overshadowed by the cost of The War on Terror. As President, would you let these costly wars go on?
What will it take to end, in a timely decisive manner, the Global Drug War; a scheme of American Prohibition and world-wide U.S. Imperialism, that funds not only domestic violence and international terrorism, but also the Prison-Industrial Complex?
I am not especially confident that any of these questions will get posed tonight or at any of the forthcoming GOP debates, but I will continue hoping these issues might eventually get some attention at some point in this political/election cycle.
Some recent and older related posts:
- Will tonight's Tea Party GOP Debate discuss costly government programs like the drug war and mass incarceration?
- 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?
Is it wise for notorious defendants to write to their sentencing judges?
The question in the title of this post is prompted by this recent New York Times article headined "In 7-Page Note, Drug Lord Asks a Judge for Leniency." Here is an excerpt:
“Good day to you, sir,” the letter to the judge began. “I am humbly asking if you could be lenient on me.” Judges receive letters all the time from defendants who are about to be sentenced, but this letter, seven pages long and neatly handprinted, came from no ordinary prisoner.
The writer was Christopher M. Coke, described by United States prosecutors as one of Jamaica’s most brutal drug lords. He led a trafficking ring from an armed stronghold in Kingston, moving guns and drugs between Jamaica and the United States, prosecutors said, and his soldiers patrolled the streets and guarded stash houses. He ordered murders, shootings and beatings, and, when one man stole drugs, the prosecutors said, Mr. Coke killed him with a chain saw.
Last year, Mr. Coke was arrested and sent to Manhattan, where he has since pleaded guilty to conspiracy charges. He could receive a 23-year sentence. And it was in that context that Mr. Coke, 42, took it upon himself to send a polite letter to the judge, Robert P. Patterson Jr. of Federal District Court.
Addressing him as “Justice Patterson,” Mr. Coke said he accepted responsibility for his actions, although he did not apologize in the letter. And he asked that the judge use his “discretion” to sentence him “below the guideline range.”
In doing so, Mr. Coke offered a list of 13 reasons, with some broken into subcategories. For one thing, he said, he had lost his mother recently. “I was told that while she was on her deathbed, she was crying and kept calling my name.” And his 8-year-old son had been traumatized by his arrest, he said. “I was told that he is constantly asking for his daddy,” Mr. Coke explained, adding “He cries all the times since I am gone.”...
Federal prosecutors had no comment on the Sept. 7 letter, which was signed “Sincerely, C. Coke” and mailed from the Metropolitan Correctional Center, where Mr. Coke is being held. His lawyers said he wrote the letter without their assistance. One, Frank A. Doddato, said the letter “humanized” his client. The other, Stephen H. Rosen, said: “There are two sides to Christopher Coke. Everyone only talks about one side.”
Of course, Judge Patterson will hear about the other side, from prosecutors and victims. At least one victim has already written. Maxine Riley, who described herself as a resident of the western Kingston area, asked the judge to impose a life sentence. She contended that Mr. Coke was personally responsible for the deaths of hundreds of Jamaicans, including her son, Dexter, who she said was killed by Mr. Coke’s gunmen when he was 16. “I hope that you exercise your judicial discretion to put him away forever,” she wrote. “Mr. Coke is the Hitler of the Caribbean; this is an opportunity for him and his murderous organization to be permanently dismantled.”
Some comparative perspective on executions and the death penalty
Over at CNN is this new piece headlined "World shocked by U.S. execution of Troy Davis," which suggests that all or nearly all countries of the world find Gerogia's application of the death penalty shocking. A more accurate headline would focus on Europeans being shocked, as many countries in Middle East and Far East still use the death penalty regularly. In particular, as this new Atlantic piece highlights, China is still the world's capital punishment king:
Research by Amnesty International found that 23 countries used the death penalty in 2010. The U.S., ranked fifth, executed 46 prisoners. Iran, ranked second, executed at least 252. China, according to Amnesty International, executed "thousands." The exact number is a state secret. The Dui Hua Foundation, a U.S.-based human rights non-profit that focuses on China, estimates China kills about 5,000 prisoners annually. In absolute terms, that would be about 14 executions daily, or in three days what the U.S. performs in an entire year. Most executions in China are reportedly carried out by lethal injection or a single gunshot to the head, although, as in the U.S., there does not appear to be a uniform national policy.
The statistics are less unflattering for China when view per capita. China has the largest population on Earth with 1.3 billion people; 5,000 executions would mean one in every 260,000 residents. In the U.S., the rate in 2010 was one in every 6.7 million. Iran and North Korea executed about one in every 300,000 and 460,000, respectively.
Two of the factors apparently contributing to China's frequent use of the death penalty are the troubled court system and a national policy that permits capital punishment for crimes that are not considered capital in most other countries. Corruption, embezzling, drug-related crimes, and even theft on a large enough scale can all get you killed in China. Last month, a Chinese telecommunications executive was sentenced to death for accepting bribes. In March, China sparked a diplomatic incident by executing three Filipino citizens on drug trafficking charges. Other non-violent crimes punished by death have included, for example, 43-year-old Du Yimin, killed in March 2008 after he borrowed $100 million for investment schemes that never panned out.
In addition, Iran is often mentioned as a notable and notorious user of capital punishment, and this recent news report, headlined "Iran hangs convicted teen murderer, drug trafficker," highlights why:
Iran on Wednesday carried out two hangings, including the public execution of a teenage boy convicted of killing an athlete billed as "Iran's strongest man," local media reported.
Despite calls by human rights group Amnesty International for an 11th-hour stay of the 17-year-old's execution, Alireza Molla-Soltani was sent to the gallows at the scene of the crime in the city of Karaj, west of the capital.
A large crowd of people had gathered to witness the hanging and security forces were present "to ensure the sentence was carried out without any glitches," the official IRNA news agency reported. Molla-Soltani was sentenced to death last month for stabbing the popular athlete, Ruhollah Dadashi, to death in mid-July. The teenager said at his trial he had killed only in self-defence after a driving dispute led him and two other youths into a confrontation with Dadashi, according to Amnesty.
Prosecution spokesman Ali Ramezanmanesh said the boy had reached "religious maturity" and was over 18 years of age. "The law views religious maturity as its criterion which is calculated according to the lunar calendar, therefore the convict is over 18 and there are no legal impediments" in the way of the hanging, he told Fars news agency. The Islamic lunar calendar is some 11 days shorter than the solar calendar, with 354 days a year....
Also on Wednesday, a man convicted of drug trafficking was hanged in prison in the southern city of Minab, the state television website reported.
Along with China, Saudi Arabia and the United States, Iran has one of the highest numbers of executions each year. The latest hangings bring to 203 the number of executions reported in Iran so far this year, according to an AFP tally based on media and official reports....
Tehran says the death penalty is essential to maintain law and order, and that it is applied only after exhaustive judicial proceedings. Murder, rape, armed robbery, drug trafficking and adultery are among the crimes punishable by death in Iran.
Tucson shooter wants to attend his competency hearing against his lawyers' advice
This new AP article, which is headlined "Loughner wants to be at hearing," highlights just some of the challenges of representing a high-profile and mentally shaky murder defendant. Here are the specifics:
The suspect in the Tucson shooting rampage wants to appear at a court hearing next week in Arizona despite objections from his lawyers that traveling from a Missouri prison facility to their mentally ill client's hometown would be disruptive.
Jared Lee Loughner has been at a prison facility in Springfield, Mo., since May 27 after he was found to be mentally unfit to stand trial. Experts have concluded Loughner suffers from schizophrenia and are trying to make him psychologically fit to trial.
The disagreement between Loughner and his attorneys about his presence at a hearing Sept. 28 in Tucson surfaced in a transcript of a conference call between lawyers and the judge on Monday. The transcript was made available late Tuesday. In the end, U.S. District Judge Larry Burns, in a ruling released Tuesday, agreed with prosecutors that Loughner must attend the hearing.
Loughner has pleaded not guilty to 49 charges stemming from the Jan. 8 shooting that killed six and wounded 13, including Rep. Gabrielle Giffords. Prison officials have forcibly medicated Loughner with psychotropic drugs after concluding he posed a danger at the prison.
Defense lawyers had opposed a request by prosecutors to make their client attend next week's hearing where Burns will consider whether it's probable Loughner can be made mentally fit for trial and whether to extend his nearly four-month stay at the prison by another eight months.
Loughner's lead attorney, Judy Clarke, told the judge she didn't think Loughner can help her advocate against an extension. "He is on suicide watch. He has been described as gravely disabled. We think it's an unnecessary risk to bring him to a hearing," Clarke said, adding that she saw nothing in the law that requires him to be there.
Prosecutors said they couldn't go forward with the hearing without Loughner and cited a federal law that implies that Loughner has a right to be there and confront witnesses.
Dr. Christina Pietz, a psychologist treating Loughner, testified that Loughner wanted to attend the hearing and was disappointed when learning that it had been postponed from Wednesday to Sept. 28. She said she believes Loughner has an ulterior motive to be in Tucson. "He wants to visit his mother and father," Pietz said. "In addition to that, he understands that there is a hearing to make a determination if he can be having an extended stay in Springfield. And that would also mean that he would continue to be medicated."...
"If Mr. Loughner is incompetent, it appears to me he remains incompetent," Burns said. "I don't know what good it would do to have him present at a hearing," Burns said, noting that his lawyers can't look to him for assistance because he hasn't been mentally competent. Still, the judge ruled that federal law appears to require his presence and said he was reluctant to grant a waiver for Loughner's presence in court if he wants to be there.
On Wednesday night, Clarke filed a motion to obtain notes of Loughner's recent conversations with Pietz that "defense counsel had not previously been privy" to. Clarke said the Bureau of Prisons "has withheld from the defense, while sharing with the prosecution, information, opinions and conversations pertaining to issues surrounding Mr. Loughner's competency and commitment, including statements he has made in response to questioning."
The hearing will mark Loughner's first court appearance since a May 25 hearing in which he was removed from the court after an outburst. Less than an hour into that hearing, Loughner lowered his head to within inches of the courtroom table and then lifted his head and began a loud and angry rant. "Thank you for the free kill. She died in front of me. Your cheesiness," Loughner said before U.S. marshals whisked him out of the courtroom.
Pietz said Loughner has made improvements. Prior to being forcibly medicated, he didn't make eye contact, a symptom of psychosis. But now he maintains regular eye contact, his physical hygiene has improved and he paces less over the last few weeks, Pietz said.
"The Evolution of Unconstitutionality in Sex Offender Registration Laws"
The title of this post is the title of this notable new article by Professor Catherine Carpenter, which is now available via SSRN. Here is the abstract:
More is not always better. Consider sex offender registration laws. Initially anchored by rational basis, registration schemes have spiraled out of control because legislators, eager to please a fearful public, have been given unfettered freedom by a deferential judiciary.
This particular article does not challenge the state’s legislative power to enact sex offender registration laws. Instead, this piece posits that, even if sex offender registration schemes were initially constitutional, serially amended sex offender registration schemes -- what this piece dubs super-registration schemes -- are not. Their emergence over the last several years demands reexamination of traditionally held assumptions that shaped the original legislation.
Two intertwined causes are responsible for the schemes’ constitutional downfall. The first is a legislative body eager to draft increasingly harsh registration and notification schemes to please an electorate that subsists on a steady diet of fear. When combined with the second cause, a Supreme Court that has yet to signal much needed boundaries, the ensuing consequence is runaway legislation that is no longer rationally connected to its regulatory purpose. Ultimately, this article is a cautionary tale of legislation that has unmoored from its constitutional grounding because of its punitive effect and excessive reach.
September 22, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack
Residual doubt, race, federalism and finality: which death penalty legal fronts might the Davis case impact?
Even though Troy Davis has now been executed by the state of Georgia, there is plenty more to say about the case and all the attention it garnered. Because I expect lots of others to keep talking about the case's import and possible impact concerning the death penalty, I doubt I will blog that much about the case in the future. However, I did have a few (too quick?) thoughts about some legal issues implicated by the Davis case which might become a focus for attention and reform for those who feel strongly that justice was poorly served or that the legal system looked bad in Georgia last night.
1. Residual doubt: I suspect that even those persons strongly confident about Davis's guilt would at least acknowledge that it was reasonable for others to have "residual doubt" about his guilt. The problem for Davis and his supporters is that none of our current death penalty laws demand (or even arguably allow) a defendant to get a lesser sentence or to be taken off death row based solely on "residual doubt." Juries are told to convict unless they have a "reasonable doubt," and a juror or reviewing judges can sensibly assert they have a residual doubt but not a reasonable one. (In the hub-bub over the Casey Anthony verdict, I surmise that critics of the jury acquittal might recognize "residual" doubt about her guilt, but they still thought the jury should not have deemed any doubt to be "reasonable.")
Often governors or clemency boards can and will commute a death sentence based on what I am calling "residual doubt." Indeed, Ohio Governor John Kasich commuted a death sentence on this ground just three months ago (blogged here) in a case similar to the Davis case in some important ways. Perhaps reformers will want to respond to the Davis case by more formally authorizing or even requiring juries, judges and others involved in death sentence review to reject or undo a death sentence based on only "residual doubt."
2. Race and federalism: I suspect that few would deny that race and geography played a part at least in the way the Davis case was perceived, if not also in the way it was handled. I believe Davis's lawyer has already labeled the execution a "legal lynching," and one need not be a student of history to appreciate the many ways in which the fact Davis was black, the fact his victim was white, and the fact this was all going on in the deep south all contributed to the case's salience for so many.
Still, in the wake of Supreme Court's landmark McClesky ruling now a quarter century ago, only two states (Kentucky and North Carolina) have passed legislation enabling defendants charged or sentenced to death to attack their sentences based on claims of racial disparity. More broadly, in the context of the death penalty, many continue to cling to federalism concepts as a defense for why federal executive and legislative officials should have had no role or even any say in what Georgia wanted to do. (The Terry Schiavo hub-bub a few years back bears recalling here: the removal of life support seems to be clearly a state law matter, but Congress got involved based on a commitment to life in that case.) Perhaps reformers will want to respond to the Davis case by pushing harder for Racial Justice Acts or for more federal oversight of state capital systems (beyond judicial oversight via habeas).
3. Finality: The real fundamental issue in the Davis case was the issue of finality: the judicial system is understandably (and justifiably?) loathe to undo or even question the outcome of a fair and constitutional trial no matter what future evidence emerges suggesting that the initial outcome was flawed. The problematic practicalities (and costs) of allowing most anyone who claims innocence after a lawful conviction to obtain a new trial based on new evidence leads me to think that few reformers will seek after the Davis case to undercut our legal systems' strong commitment to finality after a fair and constitutional trial. But this critical and too often under-discussed judicial commitment to finality is where the rubber always really hit the road in the Davis case.
A few older and recent posts on the Davis case and the (similar?) Ohio case that led to clemency:
- SCOTUS orders innocence hearing in Troy Davis case (Aug 2009)
- A year after SCOTUS intervenes, Troy Davis innocence hearing about to start (June 2010)
- "Innocence claim rejected: Troy Davis loses challenge" (Aug 2010)
- Will third time clemency hearing be the charm for Troy Davis on eve of his latest execution date?
- "Slain officer's family calls for Troy Davis' execution"
- Georgia board denies clemency to Troy Davis
- Executions number 1268 and 1269 of the modern US capital era go forward in Texas and Georgia
- Uncertainty prompts Ohio Parole Board to make unanimous recommendation to commute death sentence
- With execution date looming, how will Ohio's new governor deal with innocence-based clemency recommendation?
- "Kasich commutes convicted killer's sentence to life without parole"
"Texas sex offenders scramble to take advantage of 'Romeo and Juliet' law"
The title of this post is the somewhat ironic headline of this notable local article reporting on the ability for some Texans previously prosecuted for consensual underage sexual encounters to get free from the label "sex offender" and the state's sex offender registry. Here are the details:
A North Texas man, who we will call "Austin", may be among the first in the state to drop his name from the sex offender registry, under the new "Romeo and Juliet" law. The measure allows young lovers to erase a teenage romance, that turned criminal.
"I have been associated with the worst kind of human beings," said the 28-year old man. Austin says he took a plea bargain almost ten years ago, that landed him on the state registry for sex offenders. The plea followed a relationship with a 16-year old girl, when he was 18. He says the two were in love and their parents approved, but the law didn't agree. "People want to know who did I rape and they think I am the one hiding out in the bushes."
But, Austin is hopeful that he will be able to get his name off the list because of the new law. "It feels like a big weight is about to be lifted off my shoulders. There is a lot of hope," he said.
Austin will petition a judge in West Texas, where his case is located to set a hearing where the judge will rule on whether or not his name can be dropped from the list. Under the law, young lovers can petition if there is fewer than four years age difference, the minor is at least 15 and the sex was consensual. Lawmakers who supported the change believe the updated measure will make a difference for a sliver of the state's sex offenders.
"We had testimony where people who had a teenage romance would get married, but because the husband is a sex offender he can't be around the kids," Dallas State Senator, Royce West, said. West sponsored the new legislation that he says will allow valuable resources to be used to keep tabs on the truly dangerous offenders. "We need to make sure the resources are used in the most hideous situations, as opposed to teenage love affairs," West said.
I suppose we should all look out for follow-up articles in this series under headlines like "Texas sex offenders pleased to take advantage of new law that lets them avoid the sex offender label" and "Texas sex offenders who have avoided the sex offender label continue to support law that advantaged them."
September 22, 2011 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack
"NYC stock trader 'Octopussy' gets decade in prison"
The title of this post is the headline of this BusinessWeek report on the latest sentencing news from a high-profile insider trading case. Here are the interesting details:
A stock trader dubbed the Octopussy because he reached for so much inside information was sentenced Wednesday to 10 years in prison by a judge who said a harsh punishment was necessary because insider trading is so difficult to detect.
Zvi Goffer was convicted with two others in June in a conspiracy to pay bribes to coax confidential information out of two shady lawyers at a Manhattan firm. "Insider trading is very, very hard to detect," U.S. District Judge Richard Sullivan said as he also ordered Goffer to pay more than $10 million in restitution. "Because of that, it has to be dealt with harshly." He added: "These crimes are not going to be tolerated, certainly not in my courtroom."
The 34-year-old Goffer told the judge in a pre-sentencing letter that he now realizes he had warped perceptions of "survival of the fittest." He said "everyone is doing it" is not a good excuse for doing wrong. Goffer was among more than two dozen people convicted in what prosecutors called the biggest hedge fund insider trading case in history.
Given a chance to speak, Goffer apologized first to investors in the stocks in which he had an unfair advantage, saying: "They didn't have the information I had." He began crying when he apologized to his brother, Emanuel, who was convicted at trial along with him and is awaiting sentencing. A third defendant, Michael Kimelman, also awaits sentencing....
The sentence, one of the longest ever given to someone convicted of insider trading, caused Goffer's wife to break down in sobs. "What am I going to do?" she called out in court at one point. "It's not fair!" A woman beside her then shouted a profanity, causing Sullivan to rise from the bench and threaten to bring in U.S. marshals to make arrests. "This is a courtroom, not a street corner," he said.
Goffer was convicted by a jury that viewed evidence that he had arranged to pay two attorneys nearly $100,000 in 2007 and 2008 for inside tips on mergers and acquisitions. During the two-week trial, prosecutors introduced evidence that Goffer gave conspirators prepaid cellular telephones in an effort to reduce detection by law enforcement.
The judge said the message of the prosecution to Wall Street has to be more than a warning that prepaid telephones are not the best way to dodge prosecution. He said Goffer had repeatedly demonstrated that he knew he was breaking the law and didn't care. "It's a game that you and others seem to find exciting," he said.
Before starting his own firm, Goffer worked for nine months for Raj Rajaratnam, a one-time billionaire who was convicted earlier this year of charges at his own insider trading trial... Rajaratnam and Goffer were among more than two dozen people convicted in a case that utilized an unprecedented number of wiretaps for a white-collar case. U.S. Attorney Preet Bharara has said the government was responding to the increased use of techniques more commonly used by drug dealers and mobsters to cover up their crimes.
This Bloomberg piece, headlined "Galleon Insider Trading Case Scorecard: Average Prison Term Is Three Years," provides an effective review of all the sentences so far imposed in this matter. The piece starts this way:
Galleon Group LLC co-founder Raj Rajaratnam will be sentenced on Oct. 13 for insider trading after being convicted by a jury in Manhattan federal court.
Prosecutors say Rajaratnam, who was convicted in May, should serve as long as 24 1/2 years in prison, calling him the “modern face of insider trading.” Yesterday, judges in Manhattan sentenced two other convicted insider traders -- Zvi Goffer and Winifred Jiau -- to prison terms of 10 years and four years, respectively.
Since Rajaratnam’s arrest in October 2009, judges in Manhattan federal court have sentenced 12 defendants in cases linked to Galleon. All but two pleaded guilty. The average prison term has been 35.75 months, or almost three years behind bars.
September 21, 2011
Executions number 1268 and 1269 of the modern US capital era go forward in Texas and Georgia
As detailed in this local article from Texas, just before 7:30pm east coast time "[w]hite supremacist gang member Lawrence Russell Brewer was executed Wednesday evening for the infamous dragging death slaying of James Byrd Jr., a black man from East Texas."
And, as detailed in this local article from Georgia, after a delay of more than three hours while the US Supreme Court considered and then turned down a final request to delay the execution, just after 11pm east coast time "[o]ne the most controversial death penalty cases in the state’s history ended Wednesday night as Georgia executed Troy Anthony Davis, a convicted cop killer who adamantly maintained his innocence."
As the title of this post spotlights, the executions of Lawrence Russell Brewer in Texas and Troy Anthony Davis in Georgia follow 1267 prior executions of convicted murderers over the last 35 years in the modern death penalty era in the United States. For a variety of reasons, execution number 1269 involving Troy Davis garnered more attention than any other execution in recent memory. Whether all the attention brought to this sentencing issue has any significant and enduring legacy remains to be seen. Civil comments on any lessons to be drawn from, or the likely legacy of, today's death penalty events are welcome.
Some late day pending execution headlines from all over (and a question)
I am about to go off-line for the next few hours (if not longer), and there are two high-profile executions scheduled to be scheduled during this time. Here are some recent headlines from an array of sources covering these stories:
From the Huffington Post here, "Troy Davis And Lawrence Brewer, A Tale Of Two Executions"
From CNN here, "Appeal to stay Troy Davis execution denied, court says"
From the Houston Chronicle here, "The city of Jasper still copes with racial tensions 13 years after dragging death"
From Reuters here, "Victim's son objects as Texas sets execution in hate crime death"
From the Atlanta Journal-Constitution here, "Kim Kardashian, Diddy, Big Boi, Indigo Girls and other celebs tweet to protest Troy Davis execution"
From The Nation here, "Wider Issues Surrounding the Execution of Troy Davis — and the Death Penalty in America"
In addition to hoping the comments to this post will stay civil, I would also like to hear thoughts or opinions on a few execution-related questions: Why hasn't the Troy Davis team sought to contest constitutionally aspects of Georgia's execution process and/or make a final request that the Davis execution be recorded?
As regular readers know, death row defendants in recent years have been quite successful at slowing down the "machinery of death" in numerous states by raising concerns about the way the states operate this machinery. I have been wondering all day today, especially as all sorts of other last-ditch legal efforts are being made to try to stop the Davis execution, whether the Davis defense team has tried or even considered the kind of 1983 lethal injection suit that has worked for other defendants in other states.
"Brown: Prisons give state ‘healthiest damn criminals in the world’"
The title of this post is the headline of this interesting new local report on what sounds like an interesting local speech given by California Gov Jerry Brown today. Here is how the piece starts:
Gov. Jerry Brown said Wednesday that California’s prison system, under pressure from the courts, has focused on turning inmates into “the healthiest damn criminals in the world” but has done little to make them less likely to commit another crime after they leave custody.
County sheriffs, probation officers and others at the local level could do a much better job if given the funding and the authority to supervise low-level offenders and try to rehabilitate them, Brown said.
The Democratic governor, speaking to a gathering of 500 local law enforcement officials, heralded the Oct. 1 beginning of a new program to shift responsibility for 34,000 inmates from the state to the counties. “This does put the problem closer to where people are,” he said. “When people commit a crime, they have a family and they have a neighborhood and there’s a history there.”
If they are sent to state prison, even for a short time, he said, they disappear into a system that operates under the authority of 19 separate court orders, with hundreds of overseers walking the grounds, “taking notes” and then going back to courts to force the state to change its policies. The biggest of them all was a recent order from the US Supreme Court requiring the state to reduce its prison population by more than 30,000 inmates by 2013.
“We have lots of cooks in the kitchen,” Brown said. “We are running an ongoing legal experiment without precedent.” Brown said all of those orders have resulted in the most expensive prison system in the world, one that is mandated to give inmates health care, dental care, mental health counseling and other support but does not focus enough on changing what they will do once they leave custody.
“The goal up to now has been not to try to change the lives of the criminal, but to make sure they are the healthiest damn criminals in the world,” he said. “That they live longer, they run faster, and they shoot straighter. That’s been the game plan. We are going to move beyond that. We are going to start focusing on what will work.”
County officials have been working with Brown since January to craft a plan that will help the state relieve prison overcrowding while giving local officials the tools they need to handle more inmates. The process will be gradual, with only new inmates going to county jails while felons now in state prison complete their sentences there.
While some local officials fear their jurisdictions will be overwhelmed by the new responsibilities, others have welcomed the challenge. “It’s our belief that with adequate funding, constitutionally protected funding, we can get the job done and do it better than the state of California,” said Riverside County Supervisor John F. Tavaglione, president of the California State Association of Counties.
Of sentencing note around the circuits yesterday
Teaching and the buzz over Troy Davis and other capital cases kept me from keeping up effectively with all the circuit sentencing rulings yesterday, but handed down were three notable (and notably different) opinions from three different circuits yesterday that I wanted to at least flag here:
From the Second Circuit, US v. Archer, No. 10-4683 (2d Sept. 20, 2011) (available here), discusses a bunch of important sentencing procedure issues in a fraud case.
From the Fifth Circuit, In re Sparks, No. 11-5044 (5th Sept. 16, 2011) (available here), holds that Graham's Eighth Amendment restriction on LWOP sentence is "a new and retroactive rule of constitutional law."
From the Sixth Circuit, Crump v. Lafler, No. 09-1073 (6th Sept. 20, 2011) (available here), holds (via a split panel with a spirited dissent) that Michigan's parole scheme does not create a constitutionally protected liberty interest.
As always, readers are encouraged to help me figure out if one or more of these opinions are especially important and merit extended blog consideration.