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September 21, 2011

"Significant Entanglements: A Framework for the Civil Consequences of Criminal Convictions"

The title of this post is the headline of this interesting-looking new article by Professor Colleen Shanahan, which is now available via SSRN.  Here is the abstract: 

A significant and growing portion of our population is in or has recently been in prison. Nearly all members of this population will face significant obstacles as they struggle to reintegrate into society.  A key source of these obstacles is the complex, sometimes unknown, and often harmful collection of civil consequences that flow from a criminal conviction.  As the number and severity of these consequences have grown, courts, policymakers, and scholars have struggled with how to identify and understand them, how to communicate them to defendants and the public, and how to treat them in the criminal and civil processes.

Padilla v. Kentucky, heralded by some as a watershed and others as an anomaly, is a first step in matching the law to the practical reality of the civil consequences of criminal convictions.  This article examines Padilla and the context in which it was decided and suggests that, although the dissenters in Padilla may be correct that the opinion will be difficult to apply in a coherent way, the solution to this challenge can be found in the decision itself, which has laid the foundation for a legal doctrine of civil consequences that reflects the reality of these consequences.  The Supreme Court’s recent decision in Turner v. Rogers underscores that the Court’s approach in these two cases creates the opportunity for a more realistic, consistent, and just doctrine of civil consequences of criminal convictions.

This article begins the process of defining this doctrine by suggesting that instead of inquiring into whether consequences are direct or collateral, the test used in the past, courts should inquire into whether these civil consequences are “significant entanglements” of civil and criminal law.  First, courts should analyze whether the civil consequence is significant, in both an objective and subjective sense.  Second, courts should examine whether the consequence is entangled with the criminal process.  Where significant entanglements exist, corresponding protections should follow. The article goes on to suggest that the significant entanglement framework can be used to analyze whether Sixth Amendment protections should apply to a particular civil consequence at a particular stage of the criminal process.  Further, the significant entanglement framework applies outside the Sixth Amendment to understand the other constitutional protections that may be applied by courts to civil consequences of criminal convictions.  Thus, the significant entanglement framework is the next step in developing a new doctrine for the protections that apply to civil consequences of criminal convictions.

September 21, 2011 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Latest notable news in the Troy Davis case

This morning, with the scheduled execution of Troy Davis now only hours away, there are new developments in what has become perhaps the highest-profile capital case in a decade.  Here are the headlines reporting the new news:

The polygraph test request is an interesting new wrinkle, but I find curious that Davis and his defense team are only now talking about such a test.  The controversial nature and uncertain outcome of polygraphs results make it usually wise for advocates to avoid polygraphs unless and until they are very confident talking about the test can help their cause.  For that reason, I fully undersatnd why Davis and his defense team would not request such a test in conjunction with his 2010 innocence hearing in federal court.  But, once that proceeding went badly for Davis, and especially once the Georgia Board announced last week that it would give Davis one more shot at making his case for clemency, it seems to me Davis and his defense team should have started talking about a polygraph test rather than wait until after that Board denied clemency yet again.

September 21, 2011 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (25) | TrackBack

September 20, 2011

SCOTUS stays yet another Texas execution pending cert consideration

As detailed in this CNN report, which is headlined "Texas death row inmate granted another Supreme Court reprieve," the Justices have blocked a planned Texas execution yet again.  Here are the details:

The Supreme Court for the third time this year has stopped the pending capital punishment of a Texas inmate, giving lawyers for the man more time to file their appeals.

The justices on Tuesday issued an order granting a stay of execution for Cleve Foster, about 2 1/2 hours before his scheduled lethal injection. The Gulf War veteran was convicted along with another man of the 2002 murder of Nyanuer "Mary" Pal, a Sudanese immigrant he met at a Fort Worth bar.  The court indicated it would need more time to rule on the inmate's claims of prior ineffective assistance of counsel, and related claims of innocence of the murder.

This is the third time Foster, 47, has been granted a high court reprieve. His previous scheduled execution was stopped in January and April, once after he had already been given his last meal....

Foster has blamed his co-conspirator for the murder. His lawyers in their Supreme Court appeal presented letters from three fellow inmates who said co-defendant Sheldon Ward told them he acted alone in Pal's murder.  The state countered Ward's statements to a psychologist implicating Foster as the mastermind behind the killing.  They also said DNA from both men were found in the victim.

Texas has a planned lethal injection Wednesday. Lawrence Brewer, 44, was one of two white men convicted in the 1998 dragging death of James Byrd Jr., an African-American. That widely reported crime led to national movement to step up prosecutions and penalties for hate crimes.   Brewer has no pending appeals. It would be the 11th execution this year in Texas, the most active death-penalty state.

September 20, 2011 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Important sentencing ruling in favor of lobbyist involved in Abramoff scandal

As detailed in this new Washington Post piece, which is headlined "Judge slashes recommended sentencing guidelines for defendant convicted in Abramoff scandal," a high-profile case has resulted today in an important sentencing ruling.  Here are the basics:

A federal judge on Tuesday dramatically cut the Justice Department’s recommended sentencing range for a lobbyist convicted of bribing public officials in the Abramoff scandal and said prosecutors cannot retaliate against him for fighting his charges at trial.

The prosecutors had recommended ex-lobbyist Kevin Ring get a 17- to 22-year prison sentence for treating federal officials to meals and event tickets in exchange for favors. That would have exceeded the time served by all 20 other defendants in the conspiracy combined, including ringleader Jack Abramoff who was sentenced to four years.

The difference is that Ring, a 40-year-old from Kensington, Md., who worked for Abramoff, made the rare decision among defendants in the scandal to go to trial instead of reaching a plea deal.  He tried to argue his wining and dining of government officials was just standard lobbyist work to build relationships with government figures.  An initial jury could not agree whether he was guilty or not. He was convicted by a second jury trial in November.

Ring’s attorneys argue prosecutors’ sentencing recommendations were retaliation for exercising his constitutional right to trial.  U.S. District Judge Ellen Segal Huvelle wrote in an opinion that “it is easy to see why such an inference might be justified.”

“The notion that an ostensibly objective system of sentencing guidelines can produce such wildly varying results for essentially the same offense conduct is deeply troubling,” Huvelle wrote.  She ruled that Ring’s guideline range should be 3-5 years, but she is free to punish him outside that range at sentencing scheduled for Oct. 26....

Only in Ring’s case prosecutors are arguing he should get an enhanced sentence under the guidelines because of the grants and appropriations he and his co-conspirators were able to get for his clients at the Abramoff firm in exchange for his corrupt relationships with public officials.  They put that value at more than $14 million, including $7.3 million in increased funding for a jail for an Indian tribe client.

Prosecutors had argued at a hearing last month on the issue that they were not retaliating against Ring, but instead were free to be lenient toward defendants who agreed to plead guilty and cooperate with their investigation.  Huvelle wrote their argument was “unpersuasive.”

She said the prosecutors’ position could discourage defendants from exercising their right to trial.  She wrote that while there might be disparities in the ultimate sentence that cooperating defendants get, “the government cannot retaliate against defendant for exercising his rights.”

The full opinion handed down today in US v. Ring, No. 08-274 (D.D.C. Sept. 20, 2011), runs 40+ pages and is available at this link and has this additional appendix.

September 20, 2011 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Ninth Circuit rejects Second Amendment attack on criminalizing drug addict gun possession

In US v. Dugan, No. 08-10579 (9th Cir. Sept. 20, 2011) (available here), a Ninth Circuit panel needs only two pages to reject a federal defendant's Second Amendment challenge to a federal statute that makes it a felony for a drug addict to possess a firearm.  Here are excerpts from the brief opinion (with a bit of my emphasis added toward the end):

We consider the constitutionality of 18 U.S.C. § 922(g)(3) ... [and] uphold the statute against this Second Amendment challenge.

Defendant Kevin Dugan illegally grew and sold marijuana.  He also smoked marijuana regularly.  When police officers responded to a report of domestic violence at his home one afternoon, they discovered his marijuana operation and arrested Defendant.  Because Defendant also had a business of dealing in firearms, a jury convicted him of, among other things, shipping and receiving firearms through interstate commerce while using a controlled substance, in violation of § 922(g)(3).

Defendant argues that § 922(g)(3) runs afoul of the Second Amendment because it deprives him of his constitutional right to possess and carry weapons in case of confrontation....  [But the Supreme] Court told us that “nothing in [its Heller] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”  Two of our sister circuits have taken that statement to mean that § 922(g)(3), which embodies a longstanding prohibition of conduct similar to the examples mentioned in Heller, permissibly limits the individual right to possess weapons provided by the Second Amendment.  United States v. Yancey, 621 F.3d 681, 687 (7th Cir. 2010) (per curiam); United States v. Seay, 620 F.3d 919, 925 (8th Cir. 2010), cert. denied, 131 S. Ct. 1027 (2011).  We agree.

Like our sister circuits, we see the same amount of danger in allowing habitual drug users to traffic in firearms as we see in allowing felons and mentally ill people to do so.  Habitual drug users, like career criminals and the mentally ill, more likely will have difficulty exercising self-control, particularly when they are under the influence of controlled substances.  Moreover, unlike people who have been convicted of a felony or committed to a mental institution and so face a lifetime ban, an unlawful drug user may regain his right to possess a firearm simply by ending his drug abuse.  The restriction in § 922(g)(3) is far less onerous than those affecting felons and the mentally ill.  Yancey, 621 F.3d at 686-87.  Because Congress may constitutionally deprive felons and mentally ill people of the right to possess and carry weapons, we conclude that Congress may also prohibit illegal drug users from possessing firearms.

I find the logic of this opinion quite suspect, though I fear the usual Second Amendment crowd will not be eager to assail the Ninth Circuit panel's ruling here.  Moreover, I cannot not help but notice that, in the second sentence of the last paragraph, the Ninth Circuit panel jumps from talking about felons to referencing "career criminals" (I have added the emphasis here).  Indeed, the very use of this legally irrelevant and inflamatory term is one of many reasons I find the logic of this opinion suspect.

Obviously, not all felons are "career criminals."  More to the point, perhaps, I find intriguing not only the notion that all criminals and mentally ill and habitual drug users are those "more likely [to] have difficulty exercising self-control," but also the suggestion that all those who are "more likely [to] have difficulty exercising self-control" can, consistent with Second Amendment, be subject to severe criminal punishment for merely possessing a gun for personal self-defense in the home.

Logic aside, this panel opinion is on solid ground when it notes that all persons who have committed any felony (including Martha Stewart and Scooter Libby any many others without any history of violence) are forever subject to stiff federal criminal penalties under current law for possessing a gun even in their homes for self-defense.  Whether that law and others of a similar ilk are so clearly free from serious Second Amendment scrutiny based on Heller's dicta is a question I will continue to raise in this space in response to opinions like the panel work today in Dugan.

September 20, 2011 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (13) | TrackBack

Georgia board denies clemency to Troy Davis

My students in class today will hear (yet again) how wrong I can be, as I had predicted to them last week that the Georgia Board of Pardons and Paroles would this time vote to commute Troy Davis's death sentence.   However, as this lengthy Atlanta Journal-Constitution article reports, this morning the "Board of Pardons and Paroles had declined to commute the death sentence of Troy Anthony Davis." Here is more from the AJC report:

"We've been here three times before," said Anneliese MacPhail, mother of Mark Allen MacPhail, who was shot to death while working a second job in 1989.  "This is our fourth time [to face an execution date] so you get kind of weary of it and [I] don’t know if I can believe this. We are ready to close this book and start our lives. This has been a long haul."

The board released its decision just after 8 a.m., after spending an entire day hearing from Davis' supporters and then prosecutors and MacPhail's relatives.

The Davis family said through a spokeswoman they were not ready to comment on the decision Tuesday morning but may hold a news conference later in the day. They are still planning to visit Davis at the Georgia Diagnostic and Classification Prison near Jackson, the location of the state's death row and execution chamber. "It’s the wrong decision," said one of Davis' attorneys, Jason Ewart. "It’s a mistake."

He said the five-member board ended its presentation after three hours while the other side -- prosecutors and the MacPhail family -- was given at least four hours. “It sounds like they [prosecutors and family members] just brow beat them [the board]," Ewart said.

The Davis legal team is considering a last-ditch effort in the courts even though Davis has exhausted his appeals, Ewart said.

Davis' case has already taken more unexpected turns than just about any death-penalty case in Georgia history and his innocence claims have attracted international attention. Its resolution was postponed once again when the parole board late Monday announced it would not be making an immediate decision as to whether Davis should live or die. Davis, 42, is scheduled to be put to death by lethal injection on Wednesday at 7 p.m. at the state prison in Jackson....

While some states give the governor the authority to commute a sentence of someone about to be executed that is not the case in Georgia; that power lies with the parole board. Three years ago, the board declined to commute Davis' death sentence to life with or without parole, but it has three new members since that decision. Over the past decade, the board has commuted three death sentences -- Alexander Williams in 2002, James Willie Hall in 2004 and Samuel Crowe in 2008....

Calls for Davis to be spared execution have been made by numerous dignitaries, including former President Jimmy Carter, Pope Benedict XVI, former FBI Director William Sessions, former Georgia Supreme Court Chief Justice Norman Fletcher and Larry Thompson, the former deputy U.S. attorney general. Davis' advocates, including Amnesty International and the NAACP, have used social media to rally worldwide support. Last week, Davis' supporters presented the parole board with the names of more than 663,000 people asking that Davis be granted clemency.

This is the fourth time the state of Georgia has set an execution date for Davis. On three prior occasions, he was granted stays -- twice just hours before his execution was to be carried out.

On one occasion, the U.S. Supreme Court stepped in and ordered an extraordinary hearing, giving Davis the chance to clearly establish he was an innocent man. But a Savannah judge, after hearing two days of testimony, ultimately ruled that while Davis’ new evidence “cast some additional, minimal doubt on his conviction, it is largely smoke and mirrors.”

A few older and recent posts on the Davis case: 

UPDATE:  The official statement from the Georgia Board of Pardons and Paroles is short and available at this link.  Here is the text in full:

Monday September 19, 2011, the State Board of Pardons and Paroles met to consider a clemency request from attorneys representing condemned inmate Troy Anthony Davis. After considering the request, the Board has voted to deny clemency.

Troy Anthony Davis was convicted in 1991 of the murder of 27-year old Savannah Police Officer Mark MacPhail. On August 19, 1989, MacPhail was working in an off-duty capacity as a security officer at the Greyhound Bus Terminal which was connected to the Burger King restaurant located at 601 W. Oglethorpe Avenue.  At approximately 1 a.m., on that date, Officer MacPhail went to the Burger King parking lot to assist a beating victim where MacPhail encountered Davis.  Davis shot Officer MacPhail and continued shooting at him as he lay on the ground, killing MacPhail.  Davis surrendered on August 23, 1989.

Davis is scheduled to die by lethal injection September 21, 2011, at 7 p.m., at the Georgia Diagnostic and Classification Prison in Jackson, Georgia.

Though not stated expressly, I assume the vote to deny clemency here was unanimous (5-0).  And, as the statement suggests, it would appear that not a single member of the Georgia Board of Pardons and Paroles has even residual doubts about Davis's guilt in the murder of MacPhail 22 years ago. 

September 20, 2011 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (51) | TrackBack

"Drug deaths now outnumber traffic fatalities in U.S., data show"

64829793 The title of this post is the headline of this effective and very interesting article from this past weekend in the Los Angeles Times.  After reading this piece and seeing the latest data, I am now wondering if we need to radically rethink our approach to the drug war to focus on big pharma as the most dangerous kingpin and doctors as their pushers:

Propelled by an increase in prescription narcotic overdoses, drug deaths now outnumber traffic fatalities in the United States, a Times analysis of government data has found.  Drugs exceeded motor vehicle accidents as a cause of death in 2009, killing at least 37,485 people nationwide, according to preliminary data from the U.S. Centers for Disease Control and Prevention.

While most major causes of preventable death are declining, drugs are an exception.  The death toll has doubled in the last decade, now claiming a life every 14 minutes.  By contrast, traffic accidents have been dropping for decades because of huge investments in auto safety.

Public health experts have used the comparison to draw attention to the nation's growing prescription drug problem, which they characterize as an epidemic.  This is the first time that drugs have accounted for more fatalities than traffic accidents since the government started tracking drug-induced deaths in 1979.

Fueling the surge in deaths are prescription pain and anxiety drugs that are potent, highly addictive and especially dangerous when combined with one another or with other drugs or alcohol.  Among the most commonly abused are OxyContin, Vicodin, Xanax and Soma. One relative newcomer to the scene is Fentanyl, a painkiller that comes in the form of patches and lollipops and is 100 times more powerful than morphine.  Such drugs now cause more deaths than heroin and cocaine combined....

Overdose victims range in age and circumstance from teenagers who pop pills to get a heroin-like high to middle-aged working men and women who take medications prescribed for strained backs and bum knees and become addicted.

A review of hundreds of autopsy reports in Southern California reveals one tragic demise after another: A 19-year-old Army recruit, who had just passed his military physical, took a handful of Xanax and painkillers while partying with friends.  A groom, anxious over his upcoming wedding, overdosed on a cocktail of prescription drugs.  A teenage honors student overdosed on painkillers her father left in his medicine cabinet from a surgery years earlier.  A toddler was orphaned after both parents overdosed on prescription drugs months apart.  A grandmother suffering from chronic back pain apparently forgot she'd already taken her daily regimen of pills and ended up double dosing....

The seeds of the problem were planted more than a decade ago by well-meaning efforts by doctors to mitigate suffering, as well as aggressive sales campaigns by pharmaceutical manufacturers.  In hindsight, the liberalized prescription of pain drugs "may in fact be the cause of the epidemic we're now facing," said Linda Rosenstock, dean of the UCLA School of Public Health.

In some ways, prescription drugs are more dangerous than illicit ones because users don't have their guard up, said Los Angeles County Sheriff's Sgt. Steve Opferman, head of a county task force on prescription drug-related crimes.  "People feel they are safer with prescription drugs because you get them from a pharmacy and they are prescribed by a doctor," Opferman said.  "Younger people believe they are safer because they see their parents taking them.  It doesn't have the same stigma as using street narcotics."

The triumph of public health policies that have improved traffic safety over the years through the use of seat belts, air bags and other measures stands in stark contrast to the nation's record on prescription drugs.  Even though more people are driving more miles, traffic fatalities have dropped by more than a third since the early 1970s to 36,284 in 2009.  Drug-induced deaths had equaled or surpassed traffic fatalities in California, 22 other states and the District of Columbia even before the 2009 figures revealed the shift at the national level, according to the Times analysis....

Drug fatalities more than doubled among teens and young adults between 2000 and 2008, years for which more detailed data are available. Deaths more than tripled among people aged 50 to 69, the Times analysis found.  In terms of sheer numbers, the death toll is highest among people in their 40s.  Overdose deaths involving prescription painkillers, including OxyContin and Vicodin, and anti-anxiety drugs such as Valium and Xanax more than tripled between 2000 and 2008.

The rise in deaths corresponds with doctors prescribing more painkillers and anti-anxiety medications.  The number of prescriptions for the strongest pain pills filled at California pharmacies, for instance, increased more than 43% since 2007 — and the doses grew by even more, nearly 50%, according to a review of prescribing data collected by the state.

Though I am not versed in this Manning this kind of CDC data, it is worth putting these fatality numbers in context with CDC assessments of death resulting from other drugs that are even more lightly regulated that prescription pain-killers: according to the CDC here and here, in the US "tobacco use is responsible for about one in five deaths annually (i.e., about 443,000 deaths per year, and an estimated 49,000 of these tobacco-related deaths are the result of secondhand smoke exposure)" and alcohol is responsible for nearly 40,000 deaths annually attributable to liver disease or alcohol-induced deaths excluding accidents and homicides.

Any and all efforts to spin all this data are both welcome and encouraged.  One might readily say these data show we waste far too much time worrying about the harms of illegal drugs and far too little time worrying about the harms of legal drugs.  But one might also say that these data show how much more effective we are in preventing "collateral damage" when governments prohibit or heavily regulate a drug's distribution rather than just leave matters largely in the hands of the marketplace as in the case of tobacco and alcohol.  And, of course, just where concerns about liberty and the pursuit of happiness should fit into a discussion of drug-related life and death calculations is always a worthy topic for additional debate.

September 20, 2011 in Data on sentencing, Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (7) | TrackBack

Disappointing neglect of crime and punishment among this year's MacArthur "geniuses"

Especially given the historic importance and enduring political salience of crime and punishment issues, I am disappointed (but not  surprised) that the latest group of MacArthur "genius" grant recipients does not include a single person focused on crime and punishment issues.   This New York Times report on the grants provides the basic background:

An economist whose investigations into student achievement examined the impact of rewards for good grades; a Pulitzer Prize winner who was the country’s 16th poet laureate; and a clinical psychologist seeking to pinpoint who is at risk for suicide were among the 22 recipients of the $500,000 “genius awards,” to be announced on Tuesday by the John D. and Catherine T. MacArthur Foundation.

This year, as in years past, the 12 men and 10 women selected are a mix of the well known and the little known, and they represent a broad swath of the arts and sciences. The MacArthur award, which has been bestowed on 850 people since the program began in 1981, comes in five annual payments of $100,000, with no strings attached....

Robert Gallucci, the president of the MacArthur Foundation, said many factors are considered when choosing fellows.  The secretive selection process relies on hundreds of anonymous nominators to help identify potential honorees. “Fellows are selected for their creativity, originality and potential to make important contributions in the future,” Mr. Gallucci said.

The full list of this year's MacArthur fellows, with bios about each, can be found at this webpage.  Though I failed to find any fellows with any apparent history concerning crime and punishment issues, I did find this mini-mission statement on the MacArthur Foundation: "[W]e work to defend human rights, advance global conservation and security, make cities better places, and understand how technology is affecting children and society." Regular readers should not be surprised that I strongly believe that a better understanding of modern crime and punishment trends is central and essential to defending human rights, advancing ... security, making cities better places, and assessing how technology is affecting children and society.

Notably, in prior years, folks with crime and punishment connections have gotten these genius grants  —  e.g., David Simon of Homicide and Wire fame got a grant in 2010; a journalist and a law professor working on criminal justice issues got grants in 2009.  Perhaps the real problem is not with how the MacArthur folks make grant selections, but rather a shortage of people working with "creativity, originality and [having the] potential to make important contributions in the future" in the arena of crime and punishment.

September 20, 2011 in Who Sentences? | Permalink | Comments (2) | TrackBack

A remarkable life-saving reentry story from pro hockey via a murder conspirator

This new AP story, headlined "Mike Danton Uses Prison Skills to Save Teammate," tells a story that sounds like the plot of a mediocre made-for-TV movie.  Here are the remarkable details:

Former NHL player Mike Danton was sent to prison for plotting to take a life.  In his return to professional hockey, the skills he learned in jail may well have saved one.

Danton, who served a five-year jail term for conspiracy to commit murder, was playing in his first game with Swedish third-division club Ore on Sunday when his linemate Marcus Bengtsson hit his head on the ice after a hard hit and started convulsing.  Using the first-aid training he received in prison, Danton dropped to the ice as well, waited for Bengtsson's jaw to unclench and then shoved his hand into his teammate's mouth to stop him from choking on his own tongue.

Danton was convicted in a failed murder-for-hire plot in 2004, and wrote on his blog that "one of the luxuries" of his jail stint was the chance to become a certified first aid responder.  "I have seen seizures before. In prison, druggies would come in off the streets and have withdrawals," he wrote.  "So, when the convulsions did not (stop) after a couple of minutes, I knew something was wrong."

After Danton stopped the choking, other teammates helped him put the 21-year-old Bengtsson on his side before an ambulance arrived and took him to a hospital, where he was diagnosed with a concussion and kept overnight....

Bengtsson told Tuesday's edition of local newspaper Dalarnas Tidning that the only thing he can remember from the incident is feeling his leg starting to shake before passing out — and then seeing Danton and other teammates standing over him when he woke up.  "I can't describe how thankful I am to Mike and all the others who helped me," Bengtsson said.  "It could have been a lot worse."

Danton said he realized quickly that Bengtsson was in danger of choking on his tongue. "With several players and other help surrounding (Bengtsson) on the ice, his face went from normal tone to Christmas red to snow white," he wrote.  "In that process, he was on his back and his jaw became locked while bubbles of blood began to spew between his teeth.  Only one thing came to mind.  His tongue, I thought."

Danton said he had to wait several minutes for Bengtsson's mouth to open before he managed to get his fingers inside "and clawed at his tongue."  When the jaw started to clamp down on his fingers again seconds later "I ripped them out before I lost them," he wrote.

Danton was sentenced to 7½ years in prison after pleading guilty in a plot that prosecutors said targeted David Frost, Danton's former junior coach who went on to become his mentor and agent.  However, he was released on parole in 2009 after admitting that the intended target had actually been his father, Steve Jefferson.

Danton was a fifth-round pick by New Jersey in 2000 and played 87 career NHL games for the Devils and St. Louis.  He was arrested while a member of the Blues in 2004 following a playoff game at San Jose.

September 20, 2011 in Reentry and community supervision | Permalink | Comments (1) | TrackBack

September 19, 2011

You make the (sentencing) call: does insider trading merit decades in prison?

This latest insider-trading installment of "You make the (sentencing) call" is prompted by this lengthy new piece from the New York Times, which is headlined "In Galleon Case, Prison Term Is Seen as Test." Here are excerpts:

Federal prosecutors want to send the convicted hedge fund chief Raj Rajaratnam to prison for as long as 24 years, which would be the longest insider trading sentence in history.  How a judge rules next week on Mr. Rajaratnam’s punishment is being seen in legal circles as a litmus test of whether the crime of insider trading justifies such a long prison term.

In May, a jury convicted Mr. Rajaratnam, the head of the hedge fund the Galleon Group, of 14 counts of securities fraud and conspiracy.  Prosecutors, calling him “the modern face of illegal insider trading,” placed him at the center of a vast insider trading ring, accusing him of using a global network of tipsters to gain about $64 million from illegal stock trading.

The question is whether such a sentence — longer than the average federal prison term for murder — is appropriate.     “Given the magnitude of the crimes, it’s hard to feel any pity for him,” said Harlan J. Protass, a defense lawyer who teaches a sentencing class at the Benjamin N. Cardozo School of Law.  “Still, there is a real question whether such a lengthy sentence is warranted for an insider trading offender.”...

Today, prison terms measured in decades are common for white-collar criminals. In 2005, Bernard J. Ebbers, the former chief executive of WorldCom, was sentenced to 25 years in prison for a huge accounting fraud. Earlier this year, Lee B. Farkas, a former mortgage company executive, received a 30-year term for his role in a fraud that the government says caused $2.9 billion in losses.  On Monday, a federal judge in Miami sentenced Marianella Valera, a former mental health company executive, to 35 years in prison for her role in a $205 million fraud at American Therapeutic; a 50-year sentence was earlier imposed on her co-defendant, Lawrence Duran.

For Mr. Rajaratnam, the government has requested a sentence from 19 years and seven months to 24 years and five months, based on federal sentencing guidelines. The government said he did not deserve leniency because he was a “fundamentally deceptive and dishonest person” who had lied under oath in a deposition and had tried to cover up his crimes.

If Judge Richard J. Holwell of the Federal District Court in Manhattan issues such a sentence on Sept. 27, it will be the longest prison term ever for an insider trading crime. A recent study by Bloomberg News of 43 defendants sentenced in federal court in Manhattan for insider trading in the last eight years found that the longest sentence was 10 years, to a Credit Suisse banker convicted in 2008 of leading a $7.8 million scheme.

Mr. Rajaratnam’s lawyers call the proposed sentence “grotesquely severe” and argue that “the advisory guidelines severely overstate the seriousness of the instant offenses, and would expose Mr. Rajaratnam to a sentence grossly out of proportion to the sentences imposed on other insider trading defendants.”

They point out that the sentence is not only disproportionate to the sentences imposed in other insider trading cases, but also greater than the average federal sentence for murder (23 years), kidnapping (14 years) or sexual abuse (nine years), according to the United States Sentencing Commission.

His lawyers also criticize prosecutors for comparing Mr. Rajaratnam’s crimes to the accounting fraud committed by Mr. Ebbers of WorldCom and the Ponzi scheme run by Bernard L. Madoff.  Those crimes “ruined the lives and livelihoods of scores of victims,” while Mr. Rajaratnam’s insider trading offenses victimized no one, his lawyers said.

Insider trading does not cause “the kinds of measurable losses to identifiable victims that conventional fraud causes,” Mr. Rajaratnam’s lawyers wrote in a court filing.

The government has countered that insider trading is not a victimless crime. “Rajaratnam betrayed Galleon’s investors, its employees, the counterparties to its trades, and the capital markets system upon which he built his wealth and success,” federal prosecutors said.  The government also urged Judge Holwell to impose a long sentence on Mr. Rajaratnam “to send a strong and clear message that the time for illegal insider trading to end is now.”

In July, Judge Holwell sentenced Danielle Chiesi, a co-conspirator of Mr. Rajaratnam, to two and a half years in prison, which was less than the minimum three-year sentence requested by the government.  Yet Ms. Chiesi pleaded guilty, whereas Mr. Rajaratnam fought the government’s charges and took his case to trial, a possible negative factor at sentencing.

Stuart P. Slotnick, a lawyer at Buchanan Ingersoll & Rooney in New York, predicts that Judge Holwell will impose a prison term of 12 to 15 years, which, while less than the government’s request, would still be a record insider trading sentence. That sentence, Mr. Slotnick said, in part reflects attitudes since the financial crisis.  “There is a ‘Wall Street is bad’ mentality that permeates the culture,” he said.  “It’s now in the social ether that financial crimes of whatever kind cause widespread damage and hurt everybody.”

Recent related posts:

September 19, 2011 in Federal Sentencing Guidelines, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2) | TrackBack

"Retributive Justice and the Demands of Democratic Citizenship"

The title of this post is the title of this new paper by Professor Dan Markel, which is now available via SSRN. Here is the abstract:

This article reveals and responds to the democracy deficit in certain retributivist approaches to criminal law.  Democracy deficits arise when we insufficiently recognize the moral authority of liberal democracies to create new moral obligations for us as individuals.  Specifically, I will argue, in contrast to the claims of some leading criminal law theorists, that conduct can be legitimately and justly criminalized even if the conduct is not morally wrongful prior to or independent of law.  In other words, once we understand the basis for our presumptive political obligations within liberal democracies, a more capacious approach to establishing criminal laws can be tolerated from a political retributivist perspective.

If I'm correct, then here are some of the implications: we are morally obligated (in a pro tanto way) to (1) conform our conduct, in our capacities as nonofficials, not only to “good” mala in se criminal laws but also many mala prohibita laws, laws that I call permissibly dumb but not illiberal; (2) to render, in our capacities as nonofficials, reasonable assistance to law enforcement of the previous categories of laws; and (3) to enforce, in our capacities as officials, these categories of laws.  While the implications of this "democratic fidelity" argument are extensive, there is no moral obligation to surrender one’s judgment entirely.  Indeed, officials and nonofficials have no moral obligation toward laws that are illiberal or what I call "spectacularly dumb," regardless of their valid legal status.

Like democratic criminalization choices, democratic sentencing laws must also be scrutinized.  To that end, I sketch two moral frameworks that should work in conjunction with each other and with the threshold criminalization question when deciding whether to enforce, conform to, or assist enforcement efforts of criminal laws within liberal democracies.

September 19, 2011 in Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

"Slain officer's family calls for Troy Davis' execution"

The title of this post is the headline of this new piece from the Atlanta Journal-Constitution providing a report on today's clemency hearing for death row inmate Troy Davis.  Here are some details:

The state Board of Pardons and Paroles has finished hearing testimony in the last-ditch clemency bid from Troy Anthony Davis, who is trying to be spared execution scheduled for Wednesday.  The board could still issue its decision today.

Surviving relatives of slain Savannah Police Officer Mark Allen MacPhail, some teary-eyed, stood before cameras after the hearing ended and expressed confidence the board will allow Davis' execution to go forward.  "What a travesty it would be if they don't uphold the death sentence," MacPhail's widow, Joan MacPhail-Harris, said.  "Troy is not innocent," she said.  As for claims that Davis was wrongly convicted, "It's been a lie."

MacPhail-Harris was flanked by her 23-year-old daughter, Madison MacPhail, and 22-year-old son, Mark MacPhail Jr.  The officer's mother, Anneliese MacPhail, also expressed confidence the board will deny clemency to Davis.  "It's time for justice today," MacPhail-Harris said. "My family needs justice.  He was taken from us too soon, too early."

Madison MacPhail, unable to hold back tears, said Davis must be executed.  "It is the correct form of justice," she said.  "Troy Davis murdered my father, no questions asked."

Earlier in the day, Davis' legal team presented its case to the parole board. "We believe we have established substantial doubt in this case," Stephen Marsh, one of Davis' lawyers, said after a three-hour hearing.  The execution should not be allowed to go forward, he said.

The five-member board began its hearing at 9 a.m. and finished hearing testimony after 5 p.m.  The board has not said whether it will issue its decision today as to whether Davis will be granted clemency or whether his execution should be carried out as scheduled on Wednesday at 7 p.m....

Davis, who has always maintained his innocence, is scheduled to be executed by lethal injection Wednesday at the state prison in Jackson.  Davis declined to request a special meal before the execution, prison officials say.

Davis’ case generated worldwide attention after a number of witnesses recanted or backed away from trial testimony that implicated Davis in the shooting.  Some people later pointed to another man at the murder scene as the killer.  But one court after another has rejected Davis' claims. His legal appeals appear to be exhausted, so the parole board could be his last chance to avoid execution.

A host of dignitaries have asked the parole board to grant Davis clemency.  These include former President Jimmy Carter, former FBI Director William Sessions, former Georgia congressman Bob Barr and former Georgia Supreme Court Chief Justice Norman Fletcher.

Among witnesses to testify today before the parole board was Brenda Forrest, a juror who voted to sentence Davis to death at the 1991 trial.  She now says she has doubt about her verdict and is asking the board to grant clemency.  Two other jurors who voted to sentence Davis to death have signed affidavits asking the board to spare Davis from execution....

This marks the second time the parole board will decide whether to grant Davis clemency. In September 2008, the board rejected his bid, but the five-member board has three new members since that decision.  The parole board has the sole authority in Georgia to grant or deny clemency to a condemned inmate.  If the board decides to commute Davis' death sentence, it could sentence him to life in prison with the possibility of parole or life without parole.

A few older and recent posts on the Davis case:

September 19, 2011 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (18) | TrackBack

Still more great news and data on the latest crime rates in the United States


The chart reprinted here comes from this FBI webpage that reports on the latest great news on crime rates.  This related press release provides more of the data and context for these heart-warming numbers, along with lots of other data of note for criminal justice policy wonks: 

According to the figures released today by the FBI, the estimated number of violent crimes in 2010 declined for the fourth consecutive year.  Property crimes also decreased, marking this the eighth straight year that the collective estimates for these offenses declined.

The 2010 statistics show that the estimated volumes of violent and property crimes declined 6.0 percent and 2.7 percent, respectively, when compared with the 2009 estimates.  The violent crime rate for the year was 403.6 offenses per 100,000 inhabitants (a 6.5 percent decrease from the 2009 rate), and the property crime rate was 2,941.9 offenses per 100,000 persons (a 3.3 percent decrease from the 2009 figure).

These and additional data are presented in the 2010 edition of the FBI’s annual report Crime in the United States [available here].  This publication is a statistical compilation of offense and arrest data reported by law enforcement agencies voluntarily participating in the FBI’s Uniform Crime Reporting (UCR) program....

In 2010, there were 18,108 city, county, university and college, state, tribal, and federal agencies that participated in the UCR program. A summary of the statistics reported by these agencies, which are included in Crime in the United States, 2010, follows:

■ Nationwide in 2010, there were an estimated 1,246,248 violent crimes.

■ Each of the four violent crime offenses decreased when compared with the 2009 estimates. Robbery had the largest decrease at 10.0 percent, followed by forcible rape with a 5.0 percent decline, murder and nonnegligent manslaughter with a 4.2 percent decrease, and aggravated assault with a 4.1 percent decline.

■ Nationwide in 2010, there were an estimated 9,082,887 property crimes.

■ Each of the property crime offenses also decreased in 2010 when compared with the 2009 estimates. The largest decline, 7.4 percent, was for motor vehicle thefts. The estimated number of burglaries decreased 2.0 percent, and the estimated number of larceny-thefts declined 2.4 percent.

■ Collectively, victims of property crimes (excluding arson) lost an estimated $15.7 billion in 2010.

■ The FBI estimated that in 2010, agencies nationwide made about 13.1 million arrests, excluding traffic violations.

■ In 2010, there were 14,744 law enforcement agencies that reported their staffing levels to the FBI. These agencies reported that as of October 31, 2010, they collectively employed 705,009 sworn officers and 308,599 civilians, a rate of 3.5 employees for each 1,000 inhabitants.

Some recent related posts:

September 19, 2011 in Data on sentencing, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (5) | TrackBack

"Judge sends therapist to prison for 35 years in massive Medicare-fraud case"

The title of this post is the headline of this new piece in the Miami Herald reporting on the "other shoe" dropping in a record-setting white-collar federal sentencing.  Here are the basics from the article:

A federal judge Monday issued another astonishing prison sentence in the nation’s biggest mental-health fraud case, sending a Miami therapist to prison for 35 years. Marianella Valera, 40, a naturalized U.S. citizen from Peru who ran Miami-based American Therapeutic Corp. with her boyfriend, received less time in prison than he did.

On Friday, Lawrence Duran, 49, a New York transplant, got 50 years as the mastermind of the massive Medicare-fraud scheme — accounting for more than $200 million in bogus billing to the taxpayer-funded program. [Previous blog coverage here.]

But in both instances, U.S. District Judge James Lawrence King gave out the longest prison sentences ever for a Medicare-fraud offender.  Previously, the longest sentence was a 30-year term imposed in 2008 on a Miami physician convicted in an HIV-therapy scam. This year, Duran and Valera pleaded guilty to a variety of conspiracy, fraud and money-laundering charges after they failed to reach plea deals with the Justice Department.

Prosecutors had pushed for a 40-year sentencing, but Valera’s lawyer, Arthur Tifford, sought considerably less time. Justice Department lawyer Jennifer Saulino argued that Valera abused her “position of trust” as the licensed owner of American Therapeutic. Duran had registered the company in her name to disguise his past ownership of a similar mental-health company, which had carried a $2 million debt....

The couple’s company, with clinics stretching from Miami to Fort Lauderdale to Orlando, collected $87 million in Medicare payments after submitting $205 million in false claims. The couple paid kickbacks to recruiters to supply patients suffering from dementia, Alzheimer’s and addictions, but they could not have benefited from the company’s purported group therapy sessions....

A total of 34 people, including American Therapeutic employees, doctors, therapists, nurses and recruiters, have been charged in the ongoing fraud case, which is being investigated by the FBI and Health and Human Services-Office of Inspector General. This year, about a dozen defendants have pleaded guilty.

The underlying offense facts certainly suggest that American Therapeutic was involved in record-sized frauds.  Still given that the loss amounts involved here are far below the losses in cases of mass financial fraud in which defendants have often received sentences of 25 years or far less — I am thinking of some of the usual suspects here (e.g., Bernie Ebbers, Jeff Skilling, Marc Dreier) — I find both notable and remarkable that these defendants (who pleaded guilty, unlike say Ebbers and Skilling) are now to due to spend decades more in prison for their offenses.

Especially in light of the Eleventh Circuit's apparent willingness to sometimes find sentences substantively unreasonable as too short (as evidenced by today's Padilla ruling), I wonder if there might still be some hope for these defendants if they appeal their sentences as unreasonably long.

Recent related post:

September 19, 2011 in Federal Sentencing Guidelines, Offense Characteristics, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (3) | TrackBack

"Electronic Monitoring Reduces Recidivism"

The title of this post is the title of this helpful new "In Short" publication from the National Institute of Justice that provides a summary of a notable new lengthy report on electronic monitoring and offenders’ risk of failing to meet the terms of their probation. Here is the start of the NIJ summary:

A large NIJ-funded study of Florida offenders placed on electronic monitoring found that monitoring significantly reduces the likelihood of failure under community supervision. The decline in the risk of failure is about 31 percent compared with offenders placed on other forms of community supervision.

Researchers from Florida State University’s Center for Criminology and Public Policy Research compared the experiences of more than 5,000 medium-and high-risk offenders who were monitored electronically to more than 266,000 offenders not placed on monitoring over a six-year period. The researchers worked with the Florida Department of Corrections to secure approval, obtain administrative data, and gain help in contacting local probation offices for interviews. The researchers interviewed offenders, probation officers, supervisors and administrators to uncover insights into the electronic monitoring process.

I think it is fantastic that NIJ is producing this brief research reviews, as I am much more likely to read and understand this NIJ publication, which runs 4 pages, instead of the underlying research study, which runs over 200 pages.  It is always nice to see my federal tax dollars going to such a good end, especially when it also provides me with helpful blog fodder.

September 19, 2011 in Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Technocorrections | Permalink | Comments (0) | TrackBack

Split Eleventh Circuit deems Jose Padilla's 17-year terrorism sentence substantively unreasonable

Thanks to David Oscar Markus and this post at his Southern District of Florida blog, I have seen that an Eleventh Circuit panel today has handed down this very-long opinion in a very high-profile terrorism case. Here is how David summarizes the basic holding:

Judge Dubina writes the majority, which Judge Pryor joins, affirming the conviction and reversing Jose Padilla's 17 year sentence as too low. Judge Barkett dissents on both the conviction and sentencing holdings.... This case seems destined for Supreme Court review.

And here from the start of the opinion are the issues in play as set forth at the start of the majority's opinion:

A federal grand jury in the Southern District of Florida indicted Appellants Adham Hassoun, Kifah Jayyousi, and Jose Padilla (referred to individually by name or collectively as “defendants”), along with Mohammed Youssef and Kassem Daher, for offenses relating to their support for Islamist violence overseas....

Trial commenced on April 16, 2007, and four months later, the jury returned a special verdict convicting defendants on all counts....  On Count 1, the district court sentenced Padilla to 208 months, Hassoun to 188 months, and Jayyousi to 152 months’ imprisonment.  On Count 2, the district court sentenced each defendant to the maximum 60 months’ imprisonment.  On Count 3, the district court sentenced Padilla and Hassoun to the maximum of 180 months’ imprisonment and sentenced Jayyousi to the maximum of 120 months’ imprisonment.  The district court made all sentences run concurrently and imposed a 20-year period of supervised release for each defendant.  The defendants appeal, and the government cross-appeals Padilla’s sentence.

Among the interesting aspects of the majority's sentencing ruling in this case is its conclusion that Padilla's sentence was procedurally sound but substantively unreasonable.  Here are a few (of many) interesting passages from the majority's sentencing discussion  (with some cites removed):

The district court did not commit procedural error.  Neither party contends that the district court failed to properly calculate the Guidelines range or treated the Guidelines as mandatory....  Furthermore, the district court adequately explained that it gave Padilla a sentence that was below the Guidelines range for several reasons: the conditions of Padilla’s prior confinement, his allegedly low risk of recidivism due to his age at the time of his anticipated release, the comparable sentences imposed on other terrorists, and the fact that Padilla did not personally injure anyone or target Americans in his conspiracy.

However, Padilla’s sentence is substantively unreasonable because it does not adequately reflect his criminal history, does not adequately account for his risk of recidivism, was based partly on an impermissible comparison to sentences imposed in other terrorism cases, and was based in part on inappropriate factors.  First, the district court acknowledged that Padilla had a criminal history but then unreasonably discounted this criminal history when it imposed a sentence....

Second, Padilla’s sentence unreasonably fails “to protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C).  The district court explained that given Padilla’s age when he is eligible to leave the criminal system, he will unlikely engage in new criminal conduct.  The government argues to the contrary that “the risk of recidivism upon release is very real.  That risk is greater because Padilla has literally learned to kill like a terrorist.”  We agree that the district court failed to consider the nature of Padilla’s crimes and his terrorism training.  Although recidivism ordinarily decreases with age, we have rejected this reasoning as a basis for a sentencing departure for certain classes of criminals, namely sex offenders.  See United States v. Irey, 612 F.3d 1160, 1213–14 (11th Cir. 2010) (en banc), cert. denied, 131 S. Ct. 1813 (2011).  We also reject this reasoning here....

Third, in considering “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” 18 U.S.C. § 3553(a)(6), the district court unreasonably failed to consider the significant distinctions between Padilla’s circumstances and the sentences of other offenders the district court referenced at the sentencing hearing....  On remand, we admonish the district court to avoid imposition of a sentence inconsistent with those of similarly situated defendants.  It should not draw comparisons to cases involving defendants who were convicted of less serious offenses, pleaded guilty, or who lacked extensive criminal histories, nor should it draw comparisons to cases where the government sought the imposition of the death penalty.

Judge Barkett's discussion of sentence issues is also interesting (and even longther than the majoity's discussion).  Here is the concluding passage from her sentencing discussion (with cites removed):

Much of what the majority takes issue with concerns the trial judge’s discretion in weighing the § 3553(a) factors, but the record simply cannot support the conclusion that Padilla’s sentence involves an abuse of such discretion.  Precedent from the Supreme Court and this Circuit recognize that trial judges may attach great weight to one factor over others, and remember that each convicted person is an individual and every case is a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.  The trial judge followed these principles such that her conclusion to sentence Padilla below the Guidelines is entitled to due deference, even by those who “might reasonably have concluded that a different sentence was appropriate.

UPDATE: For a press account of this ruling, here is a Reuters piece headlined "Court says Padilla prison sentence too lenient."

September 19, 2011 in Booker in the Circuits, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

The latest news (and helpful background) on the Troy Davis case

This lengthy Atlanta Journal-Constitution article, headlined Troy Davis’ life in board’s hands; World watches as group prepares to deliberate Wednesday execution," provides the latest news on what is the most-discussed and most-reviewed death penalty case in recent memory. Here is how the lengthy piece starts:

The condemned in Georgia always have a long and tortuous journey to the execution chamber. But the case of Troy Anthony Davis, whose execution is set for Wednesday, has been perhaps the most extraordinary and controversial legal odyssey in the state’s history.

It also has generated the most worldwide attention of any Georgia case. On Thursday, Davis’ supporters gave the state Board of Pardons and Paroles the names of 663,000 people asking Davis be spared execution. Advocates are using social media to rally support and organize protests around the world.

Davis’ case has taken one unexpected turn after another since he was sentenced to death 20 years ago for the murder of Savannah Police Officer Mark Allen MacPhail. On two occasions, the district attorney who put Davis on death row issued final statements believing nothing stood in the way of Davis’ execution, only to see the case reconsidered. On Monday, the parole board is scheduled to meet once again to determine whether Davis should live or die.

Even though Davis, 42, was condemned to die for killing a cop and prosecutors steadfastly stand behind his conviction, his innocence claims have attracted a host of dignitaries. Among them, former President Jimmy Carter, Pope Benedict XVI, former Georgia Supreme Court Chief Justice Norman Fletcher and former FBI Director William Sessions say Davis should be granted clemency.

“This case is extraordinary because there have been substantial questions of his innocence for almost a decade,” said death-penalty lawyer Stephen Bright, a professor at Yale Law School. “It has attracted attention from all around the world, and the extraordinary number of people supporting him — and the prominence of some of them — is unprecedented.”

This Wednesday marks the fourth time the state has set a date for Davis to be put to death by lethal injection. In July 2007, the state parole board granted Davis a stay after he’d said final goodbyes to visitors. A year later, the U.S. Supreme Court stepped in less than two hours before he was to be placed on the gurney. Seven months after that, the federal appeals court halted another planned execution, leading to an almost-unprecedented U.S. Supreme Court order that granted Davis a new hearing that ultimately proved unsuccessful.

Anneliese MacPhail, the mother of the slain officer, said she is cautiously optimistic the execution will be carried out this week. “I want to get it over with,” she said. “I want to have some peace.” After Davis’ new execution date was set, it appeared there was nowhere for him to turn because his appeals are exhausted. But the parole board quickly agreed to again consider Davis’ request for clemency. It set a hearing for Monday and did not say when it will issue its decision.

The parole board denied clemency to Davis three years ago, but the five-member board has three new members. The board is expected to hear from witnesses who did not testify in its prior hearings. This includes a woman who has signed an affidavit saying she heard Sylvester “Redd” Coles, who was at the crime scene, say he was the real killer. Davis’ lawyers are also expected to submit sworn statements from at least three jurors who sentenced Davis to death, but who are now asking that Davis be spared execution.

The AJC article provides a lot more background on Davis's conviction and the controversies surrounding it.  In addition, these prior posts from this blog on the Davis case (for which I have added the dates of the post) highlight just some of the more recent legal wranglings:

September 19, 2011 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

September 18, 2011

New study says life with parole in California really means, on average, about 20 years

This local piece from California reports on an interesting new study of what life sentences really mean in the state.  Here are snippets from the piece, which provides an effective summary of the new study:

Inmates serving life with the possibility of parole in California, mostly convicted murderers, spend an average of 20 years in prison and almost never commit new crimes after being released, a new study concludes.

The report by the Stanford Criminal Justice Center at the university's law school, issued Thursday, also found that the state Board of Parole Hearings has become increasingly willing to set release dates for "lifers" in the last few years. But those dates have often been vetoed by the governor, under a voter-approved law that has parallels in only three other states, the report said.

Release rates are likely to increase, however, under Gov. Jerry Brown. Through April, Brown had overruled fewer than 20 percent of the parole dates approved by the board, which is composed mostly of former law enforcement officers and prison officials. The comparable veto rates were 70 percent for Gov. Arnold Schwarzenegger and 98 percent for Gov. Gray Davis.

The study also found that prisoners who are denied parole must wait an average of five years for their next hearing, up from two years in 2007, mostly because of a new, voter-approved victims' rights law. The board is less likely to approve release at an inmate's first hearing than at future hearings, the study found, and is less than half as likely to grant parole when a victim's relative attends the hearing.

The report also cited a recent study of 860 convicted murderers paroled in California since 1995. Only five had been sentenced for new felonies since then, none for crimes carrying life sentences, the study said.

The parole board, appointed by the governor, has no authority over most prisoners, who serve fixed terms based on their crimes. But it decides when lifers - those convicted of murder, attempted murder and a few other crimes, such as aggravated cases of kidnapping and rape - are suitable for release.

Lifers constitute one-fifth of the state's prisoners, the highest percentage of any state and an increase from 8 percent of the inmates in 1990, the study said. In addition, California has 4,000 prisoners serving life without the possibility of parole and more than 700 sentenced to death, all for specific categories of murder, such as murder of a police officer, multiple murders and murder during a rape, robbery or burglary....

The parole board now approves release in 18 percent of the hearings, three times the approval rate in 2007, the study said. It said one reason was a 2008 state Supreme Court ruling that required parole decisions to be based on the risk to public safety and not, in most cases, solely on the facts of the crime.

The study issued by the Stanford Criminal Justice Center is titled "Life in Limbo: An Examination of Parole Release for Prisoners Serving Life Sentences with the Possibility of Parole in California." The full 28-page study is available at this link.

September 18, 2011 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Bureaucrats initially deny Pennsylvania prisoner access to state constitution

This local story, headlined "Pennsylvania's Department of State denies inmate's request for a copy of the state constitution," provides an amusing tale of state bureaucracy at its finest:

The state constitution ... should be readily available to anyone who wants it, right? That’s probably what Michael Baynard thought when he requested a copy of it from the Pennsylvania Department of State through the state’s Right to Know Law.

Instead, the 37-year-old prison inmate was told he couldn’t have it. Baynard, who is serving time at the State Correctional Institution at Coal Township for sex offenses, appealed to the state’s Office of Open Records. On Sept. 7, the Open Records Office ordered the State Department to send him a copy of the constitution.

When that appeal arrived at the Open Records Office, its executive director, Terry Mutchler, said she thought it was some kind of high jinks. Then she realized it was for real. “It almost leaves me speechless,” Mutchler said. “It encapsulates some of the derision that folks have for us in government because a copy of the constitution is clearly a public record.”

The Department of State argued that the constitution doesn’t qualify as a record that falls under its purview since it is not a record that the department made as a result of an action it took, spokesman Ron Ruman said. In defending its decision to the Open Records Office, the department also claimed it assigns act numbers to records and the request for the constitution failed to cite an act number and year.

But there is only one state constitution. Mutchler said she couldn’t imagine a state agency not providing it.... The State Department has decided not to appeal the Open Records Office decision, although the department’s staff counsel stands by the initial denial as correct and appropriate, Ruman said.

September 18, 2011 in Prisons and prisoners | Permalink | Comments (10) | TrackBack