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October 1, 2011

Is there any strong justification for keeping (first-offender) crack dealer in federal prison after 20 years?

The question in the title of this post is prompted by this lengthy new story appearing in the Chicago Tribune, which is headlined "Supporters seek freedom for convict serving life sentence for first-time conviction; Reynolds Wintersmith, 37, has served nearly 20 years on drug offense; his only hope may lie in presidential commutation."  Here is the factual set-up for the question in the title of this post:

Reynolds Wintersmith's first conviction was a costly one.  At 20 he was sent away for life after being convicted in a large-scale drug conspiracy.  It was a mandatory sentence that troubled even the judge, who questioned if lawmakers really intended this kind of outcome for someone so young....

In the nearly two decades since, Wintersmith has been fighting from inside federal prison to convince higher courts of the unfairness of his life sentence — the result of a decision he says he made at 17 to start peddling crack and cocaine after being raised in a family where drug dealing and addiction were part of daily life.

Now, in what seems a quixotic effort, because all his legal appeals have fizzled, a small group of supporters has rallied to his cause. There is his sister, who has stood by him from the beginning. The old friend who dropped back into his life last year and refused to accept that a life sentence was just. A new attorney who was moved to lead the legal fight after taking a phone call about Wintersmith's plight. And just last week, a lawyer who was the White House pardon attorney in the 1990s agreed to consult on the case.

At the time Wintersmith was sentenced, the country was still grappling with how to respond to the crack epidemic. The federal sentencing guidelines were mandatory, giving federal judges no real leeway. Under the guidelines, Wintersmith's crimes were churned through a mathematical formula that spit out a sentence for the judge to impose. A number of factors jacked up his punishment. He was convicted of being part of a Gangster Disciples-run drug conspiracy in Rockford. The law also held him accountable for being a leader in the gang and pushing large quantities of cocaine and crack on the street. The gang also used weapons to protect its drug trade. It all added up to mandatory life, a sentence in which the judge had no say.

For some attorneys and advocates of sentencing reform, Wintersmith's case illustrates the enormous risk behind strict, inflexible sentencing guidelines. They are particularly troubled by his young age and that it marked his first conviction. "There's even more reason to be discretionary in sentencing by not throwing away lives that could be turned around," said Kara Gotsch of the Sentencing Project.

And the federal judge who handed down the sentence lamented at the time that his hands were tied by mandatory sentencing guidelines. "Even though … other members (of the conspiracy) … seem to me to be more significantly involved, and there ought to be some latitude for the court to take that into consideration when you have a 17-year-old who gets involved … there is not another alternative available," U.S. District Judge Philip Reinhard said while sentencing Wintersmith. "It gives me pause to think that that was the intent of Congress, to put somebody away for the rest of their life, but in any event, it's there."

Since then, sentencing guidelines and laws have been changed to temper the stiff penalties in drug cases or give judges more discretion. But the changes came too late for Wintersmith, leaving him with little recourse.... Today, about 2,000 drug defendants — Wintersmith among them — are serving life with no chance of parole, according to the Federal Bureau of Prisons. Love cited a recent recommendation from the American Law Institute, a law-reform group, that calls for a review of lengthy prison sentences — from 15 years to life — to determine if the punishment is still appropriate....

In an interview, Wintersmith, now 37, described a childhood scarred by drugs. Virtually everyone in his family was either using or dealing, he said. He — as well as his sister, Rashonda, in a separate interview — recalled how their mother dragged them into social service agencies, coaching them to "act the fool" so she could get a Ritalin prescription to sell on the street. Wintersmith was 11 and his sister 9 when they woke one morning to find her cold to the touch, dead of a heroin overdose.

They and two younger brothers were then sent to live with their grandmother, but she dealt drugs out of the home, both said. She was arrested when Wintersmith was about 16, leaving him feeling responsible for caring for the three siblings. Under pressure to help pay the electric bill and the rent, he turned to the life he knew — dealing on the street. While he was 17 when he joined the conspiracy, he continued selling drugs for more than a year.

Wintersmith trafficked drugs in Rockford with the Gangster Disciples. The gang had introduced crack — and with it a plague of violence. Wintersmith knows his decisions led him to prison. He has spent almost 20 years understanding why he made them and what influenced him.

Today he has multiple degrees and certifications, earned through the Bureau of Prisons. He counsels suicidal inmates and mentors inmates about to be released — even though he has virtually no prospects for freedom himself. Relaxed as he recounted his story, Wintersmith clearly has spent time reflecting, but he has accepted his lot while still keeping hope for a second chance.

"I still see myself as outside of prison.  This is something I am traveling through.  And I don't want to waste my time. I want to get the things I need to get while I am here," he said of his education efforts in prison....

The best option for Wintersmith at this point would seem to be to petition the White House to commute the life sentence.  The argument would be that justice has already been served and Wintersmith's continued imprisonment would only add to the high cost of incarceration — tabbed at millions of dollars over his lifetime.

I can readily articulate a number of strong justifications for commuting Wintersmith's sentence.  Some are based in changes in the law:  given the SCOTUS rulings in Booker and also the passage of the Fair Sentencing Act, there is every reason to that a 2011 version of Wintersmith would face a much lower sentence than the LWOP term he received two decades ago.  Some are based in equity: given his rough childhood and good works in prison (as well as the constitutional principles articulated by the Supreme Court in cases like Graham and even Ewing), he seems to deserve a second chance at personal freedom despite his criminal activity when a teenager.  Articulated in statutory 3553(a) terms, Wintersmith's two decades in prison already seem sufficient to "reflect the seriousness of the offense" and "provide just punishment for the offense" and "afford adequate deterrence to criminal conduct" and "protect the public from further crimes of the defendant."

Meanwhile, I have a very hard time devising any strong justifications for Wintersmith having to serve perhaps another 40 years or more in federal prison.  Though the principle of "finality" has limited the ability of Wintersmith it get relief in courts based on changes in the law, that principle only provides a justification four courts not revising or revisiting long-ago rulings.  The clemency power in the US Constitution spotlights that the Framers recognized that concerns of finality and the limits of law should not preclude an accountable executive official from prioritizing other values and granting deserved relief or mercy in special situations.  

Perhaps my bleeding heart (not to mention the millions of tax dollars seemingly being wasted on Wintersmith's continued imprisonment) has blinded me to the best arguments for keeping him imprisoned until he dies.  So I hope readers will help me understand any strong justifications for Wintersmith's current fate.  I also hope readers who we especially concerned or moved by Troy Davis's plight will also help me understand why Reynolds Wintersmith's situation is not at least as compelling for national and international concerns as was Davis's.

October 1, 2011 in Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (24) | TrackBack

"Brother of exonerated prisoner praises Perry’s criminal justice record"

The title of this post is the headline of this interesting report, which begins this way:

Cory Session's brother Tim Cole died in the middle of a 25-year prison sentence for a crime he didn't commit. So it's somewthing of a surprise that Session, who serves a policy director for Texas' Innocence Project, has nothing but good things to say about Texas Gov. Rick Perry.

Perry is known as a tough-on-crime governor who heartily supports the death penalty. He's presided over more executions than any other governor since the death penalty was reinstated 35 years ago. When a special commission began to look into evidence that Perry could have presided over the execution of an innocent man, the governor abruptly removed three of its members and appointed allies in their stead, effectively quashing the probe.

But Session says Perry's support of other criminal justice reforms overshadow his record on the death penalty. "Governor Perry has done an exceptional job when it comes to criminal justice reform, more so than any other governor in Texas history," Session told The Lookout. "That's a record nobody can take away from him. His stance on the death penalty, well that's another thing. But we are very pleased with that record that he has."

Perry posthumously pardoned Cole after DNA evidence exonerated him and another inmate confessed to the sexual assault that produced Cole's conviction. Perry also signed legislation requiring police departments to develop policies around eyewitness identifications of suspects. (Cole was falsely identified after police showed a Polaroid photo of him to the victim, when all the other photos of suspects shown to her were in a different format. This is just one of many examples of investigative tactics that have lead to false identifications.)

Perry also signed into law the Tim Cole Exonerated Prisoner Act in 2009, which is the most generous compensation program for wrongly convicted men and women in the nation. When one exonerated man was denied compensation under the act due to a technicality, Perry worked to get a bill passed that provided him with the funds.

But despite this record, not everyone in the prison reform community is so happy to give Perry credit. "He has not been an obstacle for us but he has also not been a key leader," says Ana Yáñez-Correa, director of the Texas Criminal Justice Coalition.

Some recent related posts: 

October 1, 2011 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1) | TrackBack

September 30, 2011

Constitutional questions over Florida's drug offenses on fast track to state's Supreme Court

This local article, headlined "Florida Supreme Court to decide drug law's constitutionality," reports on an important development in the constitutional litigation concerning the Sunshine State's drug crimes. Here are the details:

On Wednesday, the state's 2nd District Court of Appeal issued an order asking the Florida Supreme Court immediately to resolve an issue that has sprung up in courtrooms statewide in recent months: whether Florida's Drug Abuse Prevention and Control law violates the due process clause of the U.S. Constitution's 14th Amendment. If the court strikes down the statute, the ruling would likely overturn thousands of convictions and exonerate hundreds of people recently charged with drug crimes.

In the past 31 years, only about a dozen times has the appellate court deemed an issue so important that it sent the case directly to the Supreme Court and requested an immediate ruling. The appellate court's order was in response to a recent ruling by Tampa-area Circuit Judge Scott M. Brownell, who earlier this month decided the law was unconstitutional.

"Until this important constitutional question is resolved by the Florida Supreme Court, prosecutions for drug offenses will be subject to great uncertainty throughout Florida," the appellate court opinion read. "It will be difficult to reach a final resolution in many of these cases until the issue is resolved."

Under the statute, which was created by the Florida Legislature in 2002, defendants can be convicted of a felony merely by possessing an illegal drug, regardless of what they meant to do with it or if they even knew what they had was illegal. Brown and other lawyers have argued that stipulation makes the statute unlawful. At least three Florida judges — one in federal court and two at the circuit level — recently ruled that the law was invalid.

In almost every case brought before circuit courts, prosecutors have argued that judges must rule that the statute is valid because two district courts of appeal — including the 2nd — had previously determined that the law is constitutional.

Recent related posts: 

September 30, 2011 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

New NY parole law changes considerations for infamous murderer

Today's New York Law Journal has this interesting new article headlined "Law Requires Board to Access Rehabilitation in Parole Rulings," which starts this way:

Nearly half a century after the Kitty Genovese murder shocked the conscience of New York City and became a national symbol of urban apathy, her killer is coming up for parole for the 15th time. But this year the deal is a bit different for Winston Moseley, her assailant.

For the first time since he became eligible for parole in 1984, Mr. Moseley will appear before a parole board that now is being directed to look beyond his crime and criminal record, and consider if the 76-year-old who committed hideous crimes 47 years ago is the same person seeking freedom.

Nestled into budget legislation this year was a revision of Executive Law §259(c) that requires the parole board to establish and apply "risk and needs principles to measure the rehabilitation of persons appearing before the board" and the likelihood of success should the offender be released.  In the past, the board "could" consider those factors; as of today it "must" consider them.

Mr. Moseley will be among the first inmates evaluated under the revised system when he meets the parole board the week of Oct. 31.  Advocates who have long promoted parole reform are watching the process closely.  "We have always had a list of factors the board was supposed to consider, such as the seriousness of the crime, criminal history and participation in [rehabilitative] programs," said Philip M. Genty, a professor at Columbia Law School and director of its Prisoners and Families Clinic who has written about the new law for the New York Law Journal ("Changes to Parole Laws Signal Potentially Sweeping Policy Shift," Sept. 2).

The new law requires the parole board to adopt procedures that incorporate a growing body of social science research about assessing post-release needs and recidivism risks, according to Mr. Genty.  "The devil is in the details and it will depend on what regulations actually get written, but the change both rationalizes and modernizes the parole laws in ways that are long overdue," said Mr. Genty.

September 30, 2011 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

September 29, 2011

Another notable example of a (seemingly massive) white-collar sentencing trial penalty

This press report on a set of federal fraud sentencings in Virgina highlights, yet again, what a steep sentencing price some federal white-collar defendants will end up paying if they exercise the right to go to trial and get convicted.  Here are the basics from this press report:

Two Houston men have been sentenced to lengthy jail terms for their part in a $100-million life settlement fraud scheme that victimized 800 victims people the U.S. and Canada.

Adley H. Abdulwahab, 36, a hedge fund manager and part owner of A&O Resource Management Ltd., was sentenced to 60 years in prison.  Co-founder and vice president of A&O, Christian Allmendinger, 40, was sentenced to 45 years in prison.  Many of the victims were looking for safe, conservative investments but lost their entire retirement savings, said U.S. Attorney for the Eastern District of Virginia Neil H. MacBride.

"These defendants used the savings of their unsuspecting, often elderly, investors to live the high life—luxury houses, fancy cars and even a 15-karat diamond ring," said Assistant U.S. Attorney General Lanny A. Breuer.  "Having wiped out the life savings of many of their victims and stolen funds marked for retirement, Mr. Abdulwahab and Mr. Allmendinger appropriately now face significant prison terms."...

Five others in the scheme, including David White, 41, the former president of A&O, who received 60 months in jail, were sentenced after pleading guilty.  Abdulwahab and Allmendinger were found guilty at trial.

The principals at A&O misrepresented such things as A&O's prior success, its size and office locations, its number of employees, the risks of its investment offerings and its safety and use of investor funds, according to court and trial records.  When regulators began looking into the investment scheme, the principals invented two sham companies to hide behind, Blue Diamond and Physician's Trust, court records say.

I do not know any details about this fraud or about the relative roles of the various defendants.  Still, the passage I have highlighted above reports that the president of the corrupt company got a sentence of only 5 years after having pleaded guilty, while the defendants who went to trial received, in essence, LWOP sentences. 

I ass assume that the defendant who pleaded guilty got lots of sentencing credit and benefits for accepting responsibility and (I assume) helping secure the convictions of the other fraudsters.  But still, the remarkable gap between a post-plea sentence of 5 years and the post-trial sentences of 60 and 45 years for (I assume) roughly the same fraudulent behavior provides yet another stark reminder of the extraordinary sentencing consequences than can flow from putting the federal government to its budern of proof at trial in a white-collar case.

September 29, 2011 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

"Dead man appeals his murder conviction"

The title of this post is the headline of this remarkable story from the Seattle Times.  Here are the details:

A convicted killer who committed suicide four days after he was sentenced to life in prison is appealing his case from the grave — at taxpayers' expense.

Christopher Harrison Devlin, a 57-year-old long-haul truck driver, was convicted a year ago of killing a man who had been set to testify against him in an assault trial, and was sentenced to life in prison. Devlin's attorneys immediately appealed his conviction. But on Sept. 20, 2010, Devlin was found dead of an overdose in his Spokane County Jail cell.

Despite his death, Devlin's attorneys and his sister, who had herself appointed trustee of his estate, are moving ahead with the appeal in hopes of clearing his name. They also insist the state should pay for it because Devlin was broke when he died. "She believed he was innocent and unless she continued his appeal, his innocence wouldn't be established," said Robert Lamp, a Spokane probate attorney who represents Leslee Devlin, of New York City. Leslee Devlin could not be reached for comment.

For nearly a century, under a common law known as abatement ab initio, convictions like Devlin's were automatically dismissed in Washington and most other states if the defendant died before sentencing or before exhausting all of his appeals. In 2006, for example, a federal judge in Texas tossed out former Enron chief Kenneth Lay's convictions for conspiracy, securities fraud and wire fraud because he died before sentencing.

But Gregory Link, an attorney for Devlin, contends that a recent decision by the state Supreme Court, which overruled abatement ab initio in a Seattle case, should clear the way for the appeal to move forward. And since Devlin's estate is insolvent, Link said, the appeal should be funded by the state.

On the other side is Mark Lindsey, senior deputy Spokane County prosecutor, who insists that Devlin's constitutional rights are not transferrable to another person after his death. "The right to appeal a criminal conviction is solely for an individual," said Lindsey. He also opposes efforts to have the state pay for the appeal, which he estimates could cost tens of thousands of dollars.

September 29, 2011 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Effective NY Times editorial assailing mandatory minimum sentencing laws

Today's New York Times has this effective editorial criticizing mandatory minimum sentencing provisions headlined "An Invitation to Overreach."  Here are excerpts:

The rise in mandatory minimum sentences has damaged the integrity of the justice system, reduced the role of judges in meting out punishment and increased the power of prosecutors beyond their proper roles.

A Times report this week shows how prosecutors can often compel suspects to plead guilty rather than risk going to trial by threatening to bring more serious charges that carry long mandatory prison terms.  In such cases, prosecutors essentially determine punishment in a concealed, unreviewable process — doing what judges are supposed to do in open court, subject to review.

This dynamic is another reason to repeal mandatory sentencing laws, which have proved disastrous across the country, helping fill up prisons at a ruinous cost.  These laws were conceived as a way to provide consistent, stern sentences for all offenders who commit the same crime.  But they have made the problem much worse.  They have shifted the justice system’s attention away from deciding guilt or innocence.  In giving prosecutors more leverage, these laws often result in different sentences for different offenders who have committed similar crimes.

Mandatory minimums have created other problems.  As the United States Sentencing Commission concluded, such sentences have fallen disproportionately on minorities.... These laws have helped fill prisons without increasing public safety.  In drug-related crime, a RAND study found, they are less effective than drug treatment and discretionary sentencing.

The American Bar Association, the Judicial Conference of the United States and every major organization focusing on criminal justice opposes mandatory minimum sentences. The federal and state governments should get rid of them — and the injustices they produce.

September 29, 2011 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

What do Second Amendment and states' rights fans think about feds latest gun memo?

As detailed in this new AP piece, which is headlined "ATF: Illegal to sell guns to med marijuana users," a new memo/letter from the feds restates the US Justice Department's view that gun dealers violate federal law if and when they sell a firearm to anyone who uses medical marijuana consistent with state law.  Here are excerpts from the AP report:

Federal law already makes it illegal for someone to possess a gun if he or she is "an unlawful user of, or addicted to" marijuana or other controlled substances. A Sept. 21 letter from the Bureau of Alcohol, Tobacco, Firearms and Explosives, issued in response to numerous inquiries from gun dealers, clarifies that medical marijuana patients are included in that definition....

"There are no exceptions in federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by state law," said the letter by Arthur Herbert [available here], the ATF's assistant director for enforcement programs and services....

The clash between state and federal drug laws has led to lawsuits and criminal cases in some of the 16 states that have legalized medical marijuana use. Officials in two Oregon counties have said they'll appeal to the U.S. Supreme Court after state judges said sheriffs couldn't deny concealed handgun licenses for medical marijuana patients.

The Oregon Court of Appeals and the Oregon Supreme Court said the state law that authorizes concealed handgun permits is separate from the federal law that outlaws gun possession by drug users, and the state gun law doesn't address medical marijuana use.

Federal authorities also raided dozens of medical marijuana operations across Montana this spring, chilling a once-booming pot industry and leading to sweeping changes in Montana law. The Department of Justice followed up with a warning letter to political leaders in many states that federal prosecutors will pursue marijuana distributors but not individual patients who are following state law....

Pro-marijuana and gun groups said the policy clarification amounts to rescinding the gun rights for the thousands of people licensed to use medical marijuana laws. And it appears to contradict a 2009 Department of Justice memo that said the Obama administration would not pursue prosecution of individual medical marijuana users who obey state laws.

Besides that, the government is putting an additional burden on gun dealers to police their customers, said Montana Shooting Sports Association Gary Marbut. "Their business is to be merchants, not to be cops. Unfortunately, the federal licensing scheme complicates that," Marbut said. "It sounds as if the (ATF) is expecting them to drift further into the cop role."

I would be very interested to hear what various Republican candidates for president would have to say on this issue, especially Rick Perry and Michele Bachmann given their vocal support for the Second Amendment and for states' rights.

A few related posts:

September 29, 2011 in Drug Offense Sentencing, Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Justice Stevens indicates he was wrong to uphold special Texas approach to death sentencing

This new ABC News report on a George Stephanopoulos interview with former SCOTUS Justice John Paul Stevens provides this interesting account of the Justice's latest thinking about various death penalty matters.  Here is how the piece starts:

Retired Justice John Paul Stevens is a man of few regrets from his nearly 35 years on the Supreme Court, except one – his 1976 vote to reinstate the death penalty.   “I really think that I’ve thought over a lot of cases I’ve written over the years.  And I really wouldn’t want to do any one of them over…With one exception,” he told me.  “My vote in the Texas death case.   And I think I do mention that in that case, I think that I came out wrong on that,” Stevens said.

At the time he thought the death penalty would be confined “to a very narrow set of cases,” he said.  But instead it was expanded and gave the prosecutor an advantage in capital cases, according to Stevens.   The retired associate justice has been an outspoken opponent of the death penalty, but his admission of that 1976 Jurek v. Texas vote comes at a time when the country appears to be revisiting its stance on the death penalty, in light of Troy Davis’ execution last week.

He writes in his book, “Five Chiefs,” that he regretted the vote “because experience has shown that the Texas statute has played an important role in authorizing so many deaths sentences in that state.”

In a recent Republican presidential debate there was a burst of applause after the moderator mentioned the 234 executions that occurred under Gov. Rick Perry.  Stevens said he was “disappointed” when he saw that reaction.   “Maybe one believes, and certainly a lot of people sincerely do, that it is an effective deterrent to crime and will in the long run will do more harm than good.   I don’t happen to share that view,” he said. “But there are obvious people who do.   And, of course, being hard on crime has been --always is politically popular, let’s put it that way.”

I interpret these comments as an indication that Justice Stevens still believes a narrow capital statute and a well-designed death sentencing process remains constitutional, but that he also has concluded that Texas legislators (and those of other states?) have failed to ensure their capital statute is sufficiently narrow and that their death sentencing process is well-run.

September 29, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (21) | TrackBack

"Evolving Standards of Reasonableness: The ABA Standards and the Right to Counsel in Plea Negotiations"

The title of this post is the title of this timely new paper by Margaret Colgate Love now available via SSRN. Here is the abstract:

The ABA Criminal Justice Standards have been recognized by the Supreme Court as one of the most important sources for determining lawyer competence in Sixth Amendment right to counsel cases.  Because the constitutional test is whether defense counsel’s performance was “reasonable” under “prevailing professional norms,” it is necessarily an evolving one.  Padilla v. Kentucky underscores the defense bar’s stake in participating in the ABA standard-setting process to guide the development of their obligations in plea negotiations. In addition, to the extent the courts give the ABA Standards credence in judging ineffective assistance claims, they can be powerful catalysts for changing the behavior of other actors in the plea process, as well as system norms.  The Standards can also be leveraged to help the defense bar gain access to the additional resources necessary to comply with the constitutional obligations of defense lawyers post-Padilla.

Two developments give this problem particular urgency: One is the proliferation of status-generated “collateral” penalties affecting every activity of daily life, penalties that are frequently more severe than any sentence potentially imposed by the court.  The other is the broad applicability of these collateral penalties to misdemeanants and other minor offenders who in the past would have been spared the reduced legal status and stigma reserved for convicted felons.

Part I of this Article analyzes the Supreme Court’s treatment of the ABA Standards in Sixth Amendment cases, and Part II discusses the manner in which the Standards are developed and approved as ABA policy.  Part III describes the provisions of the Standards that govern plea negotiations, and proposes their expansion in light of the new mandate given defense lawyers by Padilla.  It concludes by urging greater defender participation in the Standards process to shape how the Sixth Amendment standard evolves, and to maximize Padilla’s systemic effect.

September 29, 2011 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

September 28, 2011

Arizona locality approves ordinance banning sex offenders from all public facilities

As detailed in this local story, which is headlined "Huachuca City bans sex offenders from public facilities," a locality in Arizona has enacted a uniquely broad ban on sex offenders in public spaces.   Here are the details:

In a bold and unprecedented move for an Arizona jurisdiction, the town of Huachuca City is cracking down on registered sex offenders by banning them from all public facilities. Mayor and council unanimously approved the ordinance last Thursday, which is set to take effect late October.

“As a town and as a community, we have to protect our children. As a council, we have to make the right calls,” Mayor Byron Robertson told KGUN9 News. “Our police chief indicated that we were having a serious problem with some pedophiles that were being a nuisance and we took steps to overcome that.”

The ordinance creates “child safety zones,” by banning all registered sex offenders from schools, parks, libraries, pools, gymnasiums, sports fields and sports facilities. Sex offenders must pay $100 fine per violation; repeat offenders will be charged with trespassing.

Police say they’ll rely on tips from the community as well as heavy patrolling to enforce the ordinance. “I don’t want to make it sound like Big Brother is watching, but we do have a file on sex offenders in the area, complete with photographs, so our officers will hopefully recognize them,” said Lt. Jennifer Fuller, a spokesperson for the Huachuca City Police Department.

Fuller said the impetus for the ordinance stems from a recent incident, in which a registered sex offender spent time loitering around the public pool and taking photographs, making parents and children uncomfortable....

There are exceptions: Sex offenders may enter public facilities to pick up their children, vote in an election, or to discuss with someone their kids’ health or education.

September 28, 2011 in Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

"As Federal Crime List Grows, Threshold of Guilt Declines"

P1-BC675_MENSRE_NS_20110926180027 The title of this post is the headline of this lengthy article from yesterday's Wall Street Journal.  Here are excerpts:

Back in 1790, the first federal criminal law passed by Congress listed fewer than 20 federal crimes. Today there are an estimated 4,500 crimes in federal statutes, plus thousands more embedded in federal regulations, many of which have been added to the penal code since the 1970s.

One controversial new law can hold animal-rights activists criminally responsible for protests that cause the target of their attention to be fearful, regardless of the protesters' intentions.  Congress passed the law in 2006 with only about a half-dozen of the 535 members voting on it.

Under English common law principles, most U.S. criminal statutes traditionally required prosecutors not only to prove that defendants committed a bad act, but also that they also had bad intentions. In a theft, don't merely show that the accused took someone's property, but also show that he or she knew it belonged to someone else.  Over time, lawmakers have devised a sliding scale for different crimes.  For instance, a "willful" violation is among the toughest to prove.

Requiring the government to prove a willful violation is "a big protection for all of us," says Andrew Weissmann, a New York attorney who for a time ran the Justice Department's criminal investigation of Enron Corp.  Generally speaking in criminal law, he says, willful means "you have the specific intent to violate the law."     A lower threshold, attorneys say, involves proving that someone "knowingly" violated the law.  It can be easier to fall afoul of the law under these terms.

In one case, Gary Hancock of Flagstaff, Ariz., was found guilty in 1999 of violating a federal law prohibiting people with a misdemeanor domestic violence record from gun ownership. At the time of his domestic-violence convictions in the early 1990s, the statute didn't exist—but later it was applied to him. He hadn't been told of the new law, and he still owned guns. Mr. Hancock was convicted and sentenced to five years' probation.

His lawyer, Jane McClellan, says prosecutors "did not have to prove he knew about the law. They only had to prove that he knew he had guns." Upholding the conviction, a federal appellate court said that "the requirement of 'knowing' conduct refers to knowledge of possession, rather than knowledge of the legal consequences of possession."

In 1998, Dane A. Yirkovsky, a Cedar Rapids, Iowa, man with an extensive criminal record, was back in school pursuing a high-school diploma and working as a drywall installer. While doing some remodeling work, Mr. Yirkovsky found a .22 caliber bullet underneath a carpet, according to court documents. He put it in a box in his room, the records show.

A few months later, local police found the bullet during a search of his apartment. State officials didn't charge him with wrongdoing, but federal officials contended that possessing even one bullet violated a federal law prohibiting felons from having firearms. Mr. Yirkovsky pleaded guilty to having the bullet. He received a congressionally mandated 15-year prison sentence, which a federal appeals court upheld but called "an extreme penalty under the facts as presented to this court." Mr. Yirkovsky is due to be released in May 2013....

Overall, more than 40% of nonviolent offenses created or amended during two recent Congresses — the 109th and the 111th, the latter of which ran through last year — had "weak" mens rea requirements at best, according to a study conducted by the conservative Heritage Foundation and the National Association of Criminal Defense Lawyers. The study, one of the few to examine mens rea, was extended to include the most recent Congress at the request of The Wall Street Journal.

Earlier this year, Justice Antonin Scalia, in a dissent from a Supreme Court decision upholding a firearms-related conviction, wrote that Congress "puts forth an ever-increasing volume" of imprecise criminal laws and criticized lawmakers for passing too much "fuzzy, leave-the-details-to-be-sorted-out-by-the-courts" legislation.

Lawmakers on both sides of the aisle worry about the weakening of mens rea. "Over my six years in Congress there have been many times when in discussions with members of Congress I say, 'Look, I know you want to show people how serious you are about crime, but don't put anything on the books that doesn't require criminal intent,'" says Rep. Louie Gohmert, (R., Tex.) a former state judge who wants the federal system reworked....

F. James Sensenbrenner, a Wisconsin Republican and chairman of the House crime subcommittee, said he wants to clean up the definition of criminal intent as part of a broader revamp of the criminal-justice system. There are crimes scattered among 42 of the 51 titles of the federal code, with varying standards of criminal intent. Still others are set by court decisions. "How the definition of mens rea is applied is going to be one of the more difficult areas to figure out a way to fix," he said.

The WSJ also has this very cool and very useful "Interactive Graphic", headlined "Tracking the Growth of Federal Criminal Sentences" which makes it much easier and much more fun to understand and assess federal sentencing patterns than anything I have ever seen put together by the US Sentencing Commission.

September 28, 2011 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (14) | TrackBack

Florida poised to get back to the business of lethal injections

As detailed in this Reuters article, which is headlined "Florida set to execute man for 1978 police killing," the Sunshine State appears close to resume executions after a significant hiatus prompted by lethal injection challenges. Here are the details:

A man convicted of killing a Coral Gables police officer in 1978 is scheduled to die on Wednesday, the first inmate in Florida to be executed since the state changed its lethal injection procedure.

Barring a last-minute reprieve, Manuel Valle, 61, will be administered a lethal series of drugs at 4 p.m. local time at Florida State Prison near Starke. He will be the first inmate executed in the state since Republican Governor Rick Scott took office in January.

Attorneys for Valle have filed a number of unsuccessful appeals, many of them arguing that the state's mode of execution is unconstitutionally cruel.  Earlier this year, Florida prison officials substituted one of the drugs used in the three-drug protocol after its Dutch manufacturer stopped making the product to protest its use in executions.

In August, the Florida Supreme Court unanimously rejected arguments by Valle's attorneys that the substitution of pentobarbital into the procedure would not render their client unconscious, thus subjecting him to undue pain and suffering when the next two drugs were administered.  In an opinion that cleared the way for future executions using pentobarbital, the court said it found no credible evidence that administering the drug at 10 times the normal sedation dosage would not render Valle unconscious....

Valle was sentenced to death in 1981 for the murder of Coral Gables Officer Louis Pena, gunned down after stopping Valle's car.  Valle was originally scheduled to die August 2, but the execution was postponed to allow for a hearing on his concerns about the new drug. Valle would be the 70th inmate executed in Florida since the reinstatement of the death penalty in 1976 and the first since February 2010.

I suspect 33 years from the time of the crime until a state executed an execution has to be something close to a record.  Because many states had to keep revamping their death penalty statutes in response to Supreme Court rulings in the 1970s, I would guess there are now precious few folks still on death row who committed their crime in the 1970s and even fewer likely to ever really face execution.  

I cannot recall another recent execution resulting from a crime committed when disco was popular.  Can anyone confirm or refute my instinct that Florida is about to make history if it now finally gets around to executing someone who has been on its death row for three full decades?

September 28, 2011 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (26) | TrackBack

"Megan's Laws as a Case Study in Political Stasis"

The title of this post is the title of this new piece from Professor Wayne Logan now available via SSRN. Here is the abstract:

Sex offender registration and community notification laws, today commonly known as Megan's Laws, are typically seen as consumate products of legislative panic.  Unlike many other panic-driven laws, however, the political forces motivating Megan's Laws have not dissipated, and the laws have grown exponentially over time, despite research casting considerable doubt on their public safety efficacy.  This symposium contribution examines how and why Megan's Laws have endured -- even thrived -- notwithstanding concerns over their utility, and reflects upon their likely continued political impregnability in the years to come.

September 28, 2011 in Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Defendant sentenced by judge gone bad gets no resentencing relief

As reported in this new Atlanta Journal-Constitution article, a "federal judge on Tuesday emphatically rejected a request by an inmate for a steep sentence reduction on claims he may have been the victim of racial bias from former Judge Jack Camp, who resigned in disgrace because of crimes he committed with a stripper."  Here are the basics:

"Judge Camp did a lot of bad things and he's paying the price," U.S. District Judge Timothy Batten told Mark Anthony McBride.  "But it sure doesn't appear to me this sentence in any way was based on racial animus."

Batten then unloaded on McBride for his crimes, saying he had destroyed lives and orchestrated some of the fraud while living in a halfway house after being released from prison on a previous fraud conviction.

"I think you're a liar, and I think you're a crook," Batten told McBride, who sat at the defense table.  As for the breadth of McBride's fraud, Batten said, "It fits in the category of ‘You've got to be kidding me.' "

Batten said if he, not Camp, had initially been assigned McBride's case he would have given him an additional 40 months behind bars -- the maximum recommended by the federal sentencing guidelines....

As for Camp, at the time he handed down his sentence, Batten said: "I have no idea what was going through his mind. I can't believe he gave you 170 months for this.  It's just unbelievable to me."  Batten then resentenced McBride, 45, of East Point, to the same prison time that Camp gave him, saying he thought it would have been "unfair, but not unjust," to impose a harsher sentence.

September 28, 2011 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

September 27, 2011

DOJ audit of federal clemency process with sound and fury signifying nothing

Over at Pardon Power, P.S. Ruckman has this great new post noting and linking to this lengthy new Justice Department internal reporttitled "See "Audit of the Department of Justice Processing of Clemency Petitions."  Here are highlights from Ruckman's review:

This Report finds that there was a time when the pardon power of the president was not in complete atrophy, but, in recent years very few pardons and commutations of sentence have been granted.  At the same time, the number of petitions has increased and the number of unaddressed petitions in the Office of the Pardon Attorney (backlog) has increased as well.

In the past three years, a record number of clemency applications (over 6,000) have denied - more than the number denied in the previous 13 years! As a result, some have suspected that applications have not been given serious review. Nonetheless, the Report does conclude that the Office of the Pardon Attorney (OPA) -- while having "few written polices and procedures for processing clemency applications" -- utilizes "a reasonable approach" in its investigation of the "merits" of clemency applications and to "develop its recommendations."  It also notes that the current pardon attorney has "increased the number of unpaid law student interns" in his office and brought the OPA support staff to six attorneys....

What the hand-wringing analysis of paper-pushing fails to recognize is the fact that the final decision is the president's and 1 out of ever 2 pardons granted over the last 39 years has been granted in a single month, December.  Why?  This Report sheds no light on the matter at all, at least not directly, or intentionally.  It only notes that petitions were "at the White House," on average, for 9.4 months, before a decision was made.

UPDATE:  The New York Times has this report on the report, which is headlined "Backlog Found in Action on Presidential Pardons," and begins this way: "The president’s power to reduce sentences and grant pardons is infrequently used, and backlogs in responding to clemency petitions are common, according to a new audit report from the Department of Justice."

In addition, Margaret Colgate Love sent me these astute comments on the report:

In focusing only on the efficiency with which clemency petitions are processed, the IG report ignores the quality of advice the President is getting from the Justice Department. For example, the report notes that the Pardon Attorney is handling all commutation petitions himself, without referring them to OPA staff lawyers.   It is hard to see how one lawyer, even assisted by support staff, could possibly have investigated and prepared a meaningful report on the over 3000 prisoner petitions that have been denied by President Obama in the past year.   (The report indicates that another 1000 petitions have been sent forward by the Pardon Attorney, likely to the same fate.)   This goes a long way toward explaining why this President has not granted a single commutation to date.

September 27, 2011 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

"Church or Jail? An Alabama Alternative to Incarceration Program on Hold"

The title of this post is the headline of this ABC News report on a controversial local sentencing program first discussed in this recent post.  Here is the latest:

A Bay Minette, Ala., alternative to incarceration program that asks first-time, nonviolent offenders to choose between church or jail, was slated to start today but is being delayed for legal review by city officials, said Bay Minette Mayor Jamie Tillery.

"The city will ask the Alabama Attorney General to review the program as well. The city will reserve further comment until these reviews have been completed," Tillery wrote in an email to ABCNews.com.

The Restore Our Community program, called Operation ROC, was developed for those convicted of first-time misdemeanors, offering them the opportunity to either attend church once a week for a year and answer questions about the services, or go to jail and pay a fine.  Right away, the program sparked controversy.

While Tillery said the first-time misdemeanor offenders would be offered a "menu of options," including community service, the American Civil Liberties Union stepped in to say church should not be among them.  "Even if the city offers other sentencing alternatives that are comparable to Operation ROC, which is far from clear, the First Amendment still prohibits the government from becoming entangled in core religious exercise, which includes attending church," ACLU attorney Heather Weaver told ABCNews.com.  "The government may not serve as a conduit for church recruitment."

The ACLU would continue to investigate ROC, Weaver said, "to determine what additional steps should be taken."  On Monday, the ACLU sent a letter to Tillery, Bay Minette city council members and the chief of police, asking that the city end the ROC program and consider nonreligious alternatives to incarceration.

Both federal and state courts have ruled that government officials "can't make going to church or participating in religious activities part of an offender's probation, parole or sentence," said Weaver....

Judges in Kentucky, Louisiana, Mississippi and Virginia have offered offenders the opportunity to go to church instead of jail, but state courts have ruled those decisions unconstitutional.

If Alabama does permit the ROC program to offer church as an alternative to fines and jail, Weaver said the ACLU might pursue litigation. "We're going to keep all the options on the table at this point," she said.

Recent related post:

September 27, 2011 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Reflections on federal prison costs through the lens of "muffin-gate"

As detailed in this story from The Hill, which is headlined "Grassley keeps pressing on government conference costs," a recent audit indicating that the Justice Department may have (like everyone else) paid too much for hotel food continues to be a source of inside-the-beltway buzz.  Here are the basics:

Muffin-gate isn’t going anywhere.  Sen. Chuck Grassley (R-Iowa) is pressing the Obama administration for more answers on federal conference expenses, following last week’s audit that found the Justice Department paid $16 a muffin, as well as other exorbitant prices, at recent agency gatherings.

In a message sent Monday [available here], Grassley specifically asks Jacob Lew, President Obama’s budget director, why Justice’s conference spending rose by more than 50 percent from 2008 to 2009, the first year of the Obama administration.

“As I have been saying, this kind of spending is unacceptable given the economic realities most Americans are facing right now,” wrote Grassley, the ranking member on the Senate Judiciary Committee.  Grassley has been one of the leading critics of the government’s conference spending in recent days, saying on Thursday that heads needed to roll within the executive branch....

But the Justice Department –- as well as Hilton Hotels, which served the muffins in question –- have also pushed back against the report.  In a statement, Hilton said that, as if often the case, the receipt for the event discussed in the audit didn’t tell the whole story.  In fact, the hotel chain said, it served muffins, fruit, coffee and juice, as well as tax and gratuity, for $16 a person.  A Justice spokeswoman seconded Hilton’s take on the event, saying in a statement last week that “the abbreviated banquet checks did not reflect all of the food and services provided.”

While I am pleased to see that at least one Senator has enough time to double-check that DOJ is not wasting money on muffins, I continue to be disappointed (but not surprised) that nobody on Capitol Hill seems too concerned with the recent DOJ account (in its recent letter to the USSC) of how expensive and overcrowded federal prisons are right now.  Every single one of the 217,000+ prisoners in the federal system — more than half of whom are there serving time for federal drug offenses —  are each costing the American taxpayer $70 per day every day.  Some (much? most?) of that considerable federal prison expense — which totals more than $15 million every single day — is not obviously much more beneficial to the public than a few $16 muffins.

Of course, exploring whether taxpayers' money was wasted on some muffins scores political points; exploring whether taxpayers' money is wasted on keeping federal offenders in prison long than needed to serve public safety requires dealing with a lot of chalenging issues of public policy.  I guess we should not be surprised what ends up garnering congressional attention these days.

September 27, 2011 in Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Following Ohio Parole Board's recommendation, Gov Kasich commutes another murderer's death sentence

As detailed in this Columbus Dispatch article, which is headlined "Kasich spares killer's life; Governor cites abusive childhood in decision to alter death sentence," the Governor of the state of Ohio is making modern history through regular use of his clemency powers to spare the lives of condemned murderers. Here are the details of the latest notable act of clemency by Republican Governor John Kasich:

Convicted killer Joseph Murphy has a list of people to thank for sparing his life — Gov. John Kasich, the Ohio Parole Board, his public-defender attorneys. But perhaps more than anyone else, Murphy may owe his life to Ohio Supreme Court Judge Thomas J. Moyer, whose words played a pivotal role — even though he died 17 months ago.

Yesterday, Kasich commuted Murphy’s death sentence to life without the possibility of parole. Murphy, 46, was to have been executed on Oct. 18 for the 1987 murder of Ruth Predmore, a 72-year-old widow from Marion, Ohio. The governor concurred with an 8-0 parole-board recommendation that Murphy should not be executed, largely because of his abused, neglected childhood growing up in Ohio and West Virginia.

Moyer, a Republican, was the longest-serving state chief justice in the U.S. at the time of his death on April 2, 2010. He was a conservative jurist not easily swayed to support inmate arguments in death-penalty cases, his colleague, former Justice Herbert Brown, recalled at a clemency hearing two weeks ago.

That made Moyer’s dissent even more striking in a 4-3 Ohio Supreme Court decision in 1992 supporting Murphy’s death sentence. “In all of the death penalty cases I have reviewed, I know of no other case in which the defendant, clearly guilty of the crime as the defendant is here, was as destined for disaster as was Joseph Murphy as a direct result of the conditions to which he was exposed by his family,” Moyer wrote in opposing death for Murphy.

Murphy’s attorneys highlighted the late chief justice’s comments in their presentation to the parole board; the board echoed the quote in its favorable recommendation to the governor; and Kasich repeated Moyer’s words in his clemency decision.

Calling Predmore’s murder “heinous and disturbing,” Kasich said that despite a traumatic childhood, Murphy deserves severe punishment. But the governor said he agreed that considering Murphy’s “brutally abusive upbringing and the relatively young age at which he committed this terrible crime, the death penalty is not appropriate in this case.  Thus, I have commuted his sentence to life in prison with no chance for parole. I pray for peace for all who have been impacted by this crime.”...

It was the second time this year that Kasich commuted a killer’s death sentence. In June, he granted clemency to Shawn Hawkins, 42, of Cincinnati, because the details of his role in a drug-related double slaying were “frustratingly unclear.”  Like Murphy, Hawkins’ sentence was commuted to life without parole.

Not only has Governor Kasich recently commuted two death sentences, he also granted clemency earlier this month to Kelley Williams-Bolar, the Akron mom who fraudulently enrolled her kids in a different school district (basics here).  Cheers to Governor Kasich and his staff for understanding the importance and potency of his clemency authority, and jeers to the media and the usual criminal justice pundits if they fail to recognize and laud Ohio's Governor for his now already impressive clemency record.

I am not sure whether to be incredibly proud or deeply troubled that Ohio's Governor Kasich has now in the last three months made more profound and effective use of his state clemency authority in just the last three months than US President Barack Obama has in over the last three years.  I am sure that this latest capital commutation, and the broader story of Governors making good use of clemency powers, merits a lot more attention than it is likely to receive from either the media of the punditry.

Recent related posts:

September 27, 2011 in Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (17) | TrackBack

California counties usefully struggling through what to do with incoming inmates

This new front-page article in the Sacramento Bee, headlined "Here come the inmates -- county debates where scarce funding should go," documents the productive incarceration debates and challenges now facing localities in the wake of the California state prison population reduction plans.  Here are excerpts:

In less than two weeks, Sacramento County will start assuming responsibility for thousands of inmates and parolees now watched over by the state.  The pending shift has touched off a debate within the county over how to spend millions of dollars also coming from the state -- whether to create more jail beds or fund treatment programs aimed at keeping convicts from offending again.

The state budget approved earlier this year gave counties responsibility for lower-level offenders released from prison or sentenced under new requirements.  Counties will get offenders convicted of crimes called the "triple-nons": nonserious, nonviolent and nonsexual.

Sacramento County expects to receive about 200 parolees and newly sentenced offenders next month. When the transition is complete in four years, the county can expect responsibility for 2,300 additional inmates and parolees....

County law enforcement officials have spent months discussing how to divvy up $13.1 million the county will receive from the state for this year.  They don't expect to take a plan to the Board of Supervisors for final approval until late October....

Counties with completed plans have taken different approaches.  In Fresno County, where a crowded jail has led to thousands of early releases, officials have decided to use the bulk of their new funds to reopen part of the jail.  San Francisco County plans to spend some of its funding on jails, but most of the money will go to alternatives to incarceration, including drug treatment and work training.

Edward Latessa, a nationally recognized expert on community corrections, told a crowd of California probation officers earlier this year that treatment is more effective than punishment at keeping offenders from committing new crimes.  He also said punishment alone doesn't work.  He said the most effective programs work on changing attitudes -- which is what Sacramento County's Probation Department hopes to achieve with one of its proposals.  The department wants to use cognitive behavioral therapy for offenders who report to a day center.

Such an approach would be more effective than simply putting people in jail, said Don Meyer, the county's chief probation officer.  "This county has been successful at locking people up," he said. "This county has not been successful at stopping the problem (of crime)."...

Gov. Jerry Brown made it a cornerstone of his budget to shift responsibility for lower-level inmates to counties.  Since then, state corrections and county probation officials have pushed for more treatment programs as an alternative to locking people up.  But some Sacramento County officials said they aren't ready to let more offenders out on the street.

September 27, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Sensible sentencing alternatives for high-profile defendant involved low-level fraud

I want to praise the district judge involved in this notable federal sentencing story, headlined "Former UCA president avoids prison time for fraud," for saving taxpayer money on wasteful prison costs.   Here are the details:

Former University of Central Arkansas president Lu Hardin said Monday that he was hooked on the slots the first time he played them more than a decade ago, and that his gambling compulsion and mounting debts led him to lie to school trustees to tap into bonus money he had been promised.

U.S. District Judge James Moody sentenced the one-time rising political star to five years of probation and 1,000 hours of community service, but no prison time.  Hardin, 60, pleaded guilty earlier this year to falsifying a document that persuaded trustees to give him early access to a $300,000 bonus so he could pay off gambling debts.

Moody said he was convinced Hardin was "genuinely remorseful and humiliated" by his own actions.  Federal sentencing guidelines suggested a sentence of nine to 12 months in prison, but Moody was not bound by that recommendation.

A major factor in Hardin's reduced sentence was his cooperation on a separate federal investigation. Hardin has spoken to the FBI and agreed to testify if the investigation, which a prosecutor would not detail, leads to any charges.  An FBI spokesman also declined to comment.

After a career as an Arkansas state senator and the state's higher education director, Hardin became president of the Conway university in 2002.  During a six-year tenure, he oversaw dramatic growth in the university's enrollment, endowment and prestige.  Trustees approved the $300,000 bonus in full public view....

Only his wife knew about the thousands of dollars of gambling debts he racked up, Hardin said. To pay them off, he made what he called a "horrendous mistake" by forging letters to persuade trustees that he could draw early on the bonus, which was supposed to have been paid to him over five years, according to federal court documents....

Hardin's attorney, Chuck Banks, said his client is a "model person" who paid back the almost $200,000 he collected from the scheme on his own.  He argued that Hardin's history of public service and his past medical problems, including a melanoma that left him blind in his right eye, merited leniency.

Moody sided with Banks.  Although Hardin's actions were criminal, he had a history of good behavior and he didn't believe Hardin would commit another crime, Moody said.  As part of his community service, Hardin will be required to continue attending Gamblers Anonymous meetings and to teach classes about fraud.

Hardin was president of UCA for six years before he resigned in 2008 after the scandal broke.  He received a much-criticized $670,000 contract buyout, and became president of Palm Beach Atlantic University in June 2009, but resigned from that job a week before pleading guilty in March....  After pleading guilty, he surrendered his law license and lost his right to vote. 

This is a great example of a low-level white-collar offense in which the direct and collateral consequences of the federal prosecution and conviction are themselves likely sufficient punishment in light of the nature of the crime and history of the offender.  I often believe a very big fine and lots of community service would be both adequate and effective punishment for low-level white-collar frauds, and I wonder if any readers have any problems with a non-prison, below-guidelines sentence in a case like this.

September 27, 2011 in Booker in district courts, Criminal Sentences Alternatives, Offense Characteristics, White-collar sentencing | Permalink | Comments (3) | TrackBack

September 26, 2011

"California To Allow Prisoners To Serve Sentences Online"

Onion The title of this post is the amusing headline of this story in The Onion:

Faced with a mandate to cut the state's prison population by 30,000, the California Department of Corrections and Rehabilitation announced Monday it would begin allowing prisoners to serve their sentences online.

"Inmates are required to log in promptly every morning at 6 a.m.," CDCR secretary Matthew Cate said. "But make no mistake, this is not some online holiday resort prison. Offenders spend at least eight hours a day entering data and can only see visitors in the chat room once a week.  The real advantage of the Internet penitentiary is that it streamlines the entire corrections process, allowing a standard five-year sentence to be completed electronically in as little as three weeks."

Cate added that while there was still a problem with prison rape, inmates could report an assault or any other issue by clicking on the "Ask the Warden" button

September 26, 2011 in Technocorrections | Permalink | Comments (5) | TrackBack

Plans for modern leper sex offender colony in Florida

A helpful reader alerted me to this local story from Florida, which is headlined "Sex offender village planned for Lake County" and starts this way:

A Central Florida woman wants to house hundreds of sex offenders in rural Lake County. The planned sex offender village would start with 288 predators and offenders in a leased facility, but could expand to 1,100 on 500 acres.

Barbara Farris, head of a new organization called S.O Solutions, Inc., sees the remote spot as a solution to housing sex offenders she's been fighting to keep out of neighborhoods. "It's not right in city limits.  We're miles away between Sorrento and Sanford," she said.

The goal of the facility would be to take offenders away from the temptation to offend again by living near children. "They have an atmosphere where they're not looking out their window at kids in a park, not a mile away from your school," said Farris. She also says they would offer not only housing, but monitoring, counseling, help finding a job, and transportation.

"Honestly, I wanted to cry. I was absolutely furious," said mother of a year old girl Victoria Morris, who lives just outside Sorrento. "This can't happen to our neighborhood." The mother started a Facebook page and a petition she's just started to circulate online to fight the plans of a sex offender village.

September 26, 2011 in Collateral consequences, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (21) | TrackBack

Lamenting (yet again) extreme death penalty criticism and insufficient LWOP concerns

Gr-death-penalty-approve-462_custom This post returns me to my long-running concerns with abolitionist fervor reflected in yet another bout of media hand-wringing following yet another controversial execution.  This time round, of course, the Davis case is generating all the passion, and the most prominent recent example of MSM wailing is this new New York Times editorial headlined "An Indefensible Punishment."  Here are excerpts from the piece:

Sentencing people to death without taking account of aggravating and mitigating circumstances leads to arbitrary results.  Yet ... so does considering such circumstances because it requires jurors to weigh competing factors and makes sentencing vulnerable to their biases.

Those biases are driven by race, class and politics, which influence all aspects of American life.  As a result, they have made discrimination and arbitrariness the hallmarks of the death penalty in this country....

The problems go on: Many defendants in capital cases are too poor to afford legal counsel. Many of the lawyers assigned to represent them are poorly equipped for the job....

Politics also permeates the death penalty, adding to chances of arbitrary administration. Most prosecutors in jurisdictions with the penalty are elected and control the decision to seek the punishment.  Within the same state, differing politics from county to county have led to huge disparities in use of the penalty, when the crime rates and demographics were similar.  This has been true in Pennsylvania, Georgia, Texas and many other states....

All but a few developed nations have abolished the death penalty.  It is time Americans acknowledged that the death penalty cannot be made to comply with the Constitution and is in every way indefensible.

All of the problems highlighted by the NY Timesin this editorial apply at least as forcefully to the punishment of life without parole (LWOP) as to the punishment of death in the United States.   Moreover, while the death penalty is mentioned in the Constitution and has long been part of America's sentencing history, LWOP finds no support in either the Constitution's text or history (or really in any other "developed nations" for that matter).  Most important, as the chart above shows, strong public support for capital punishment readily supplies the key "defense" for the death penalty in America: our constitutional commitment to democracy — to "government of the people, by the people, for the people" — means that popular support for this ultimate punishment can (and will) keep it on the books.

Further, America's sentencing laws each year subjects only a few dozen aggravated murderers in a few states to the real prospect of a death sentence and execution.  And those aggravated murderers typically will face death as a punishment only if and when the victim's family, and a set of prosecutors, and a set of jurors, and a set of judges all independently decide that death is a fair and fitting punishment.  Asserting that "discrimination and arbitrariness [and] the hallmarks of the death penalty" fails to acknowledge that (1) only a small number of aggravated murderers are even eligible for a death sentence, and (2) lots of victims and prosecutors and juries spare most aggravated murderers from actually receiving a death sentence, and (3) lots of judges and executive officials spare the most of those sentenced to death from actually getting executed.

Meanwhile, America's sentencing laws each year subject thousands of lesser offenders to LWOP or functional LWOP sentences (six years ago the US lifer count was over 130,000, but that included folks serving life with parole).  And often it merely takes one charging decision by a lone prosecutor or one sentencing decision by a lone trial judge to forever extinguish the chance for many lesser offenders to ever have even a chance to regain their liberty before dying in prison.  Further, there are strong reasons to fear that wrongful convictions, racial and economic and geographic biases, and ineffective lawyering are far bigger problems for the huge numbers facing LWOP than for the relatively tiny number facing death sentences.  Moreover, while SCOTUS rulings have ensured that no juvenile or mentally retarded aggravated murderers are on death row, there are still thousands of juvenile offenders and probably even more mentally retarded offenders serving LWOP sentences throughout the United States (some of whom likely are wrongfully convicted and most of whom likely suffered from racial, economic and geographic biases and ineffective lawyering).  

The Supreme Court's important Graham ruling last year reveals that a majority of Supreme Court Justices are starting to appreciate that LWOP sentences are sometimes used for lesser crimes and for lesser offenders in a manner that really "cannot be made to comply with the Constitution and [are] in every way indefensible."  Moreover, I am always pleased to learn about savvy sentencing reformer working in Texas and elsewhere who appreciate that a lot of good can be done seeking to convince the public and legislators that lesser offenders at least get a chance in their old age to seek a last gasp of liberty.  

But it seems that hard-core abolitionists (like the editors at the New York Times) — whose cause I respect, but whose tactics, fervor and extreme rhetoric always trouble me — are still slow to appreciate the potential value and critical importance of greater concern for the greater number of greater LWOP injustices than for what they alone perceive to be the death penalty's unique (and uniquely democratic) immorality.  So I expect there will be more posts here (yet again) complaining about how much advocacy energy and extreme rhetoric is expended simply trying to help get a few dozen aggravated murderers moved from the death row parts to the LWOP parts of our massive modern prisons.  (A final irony here: most state death rows are safer, have better facilities, and are less crowded than most other part of modern state prisons.)

A few recent posts on the Davis case and older posts on capital obssesions:

September 26, 2011 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (17) | TrackBack

How should one sentence a "dead" man in Vegas?

Though the title of this post might sound like a pitch for a better sequal to The Hangover, the question is actually prompted by this local story headlined "Sentencing set for ‘dead’ man who was hiding in Las Vegas for decades." Here is the backstory:

For a man who has been legally dead for 25 years, Arthur Jones was decidedly alive this morning in a Las Vegas courtroom.  The former Chicago broker made his plea to a Class E felony fraud charge after having been in hiding for 32 years as a casino worker in Las Vegas....

Jones, 73, who is out of custody on $20,000 bail, originally had been charged with four felony counts of false identity, identity theft and fraud.  Jones pleaded to the reduced charges under a deal he worked out with the Nevada Attorney General’s office, which found that he had an interesting story — he disappeared from his Chicago-area home in 1979 and had moved to the Las Vegas area and assumed a new identity.

“He will receive probation, as mandated by law,” Jones’ attorney, Stephen Stein told the judge at the arraignment....  Under the agreement, Jones will make restitution to the Social Security Administration, which will be determined by the court, Stein said. Stein has said Jones could end up paying between $46,000 and $75,000 for Social Security fraud....

Jones was living in Las Vegas under the alias of Joseph Sandelli and is believed to have used that name since his disappearance from Highland Park, Ill., in 1979.  His arrest came after a complaint regarding the fraudulent use of a Social Security number.

The reason for his disappearance was unclear but authorities in Chicago said he might have met some trouble because of gambling debts and possible organized crime affiliations.  Stein said the reasons for his disappearance will be revealed later.

Jones was declared legally deceased in 1986 and his wife and children collected Social Security benefits as a result.  Investigators say Jones obtained a false Illinois driver's license, birth certificate and Social Security number he claims to have purchased in 1979 for $800 in Chicago.  He allegedly used the documents to get a Nevada driver's license in 1988.

Readers are, of course, highly encouraged to suggest both sentencing terms and/or sentencing jokes for Mr. Jones.  Perhaps we should have a blog contest to finish the sentence "What happens in Vegas..."

September 26, 2011 in Criminal Sentences Alternatives, Offense Characteristics | Permalink | Comments (2) | TrackBack

Federal sentencing postponed from former Gov. Blagojevich

As detailed in this local article, "Former Gov. Rod Blagojevich’s sentencing next month on his sweeping corruption charges has been postponed, according to a court order Monday." Here is more:

No new date has been set. The Oct. 6 date has always been tentative, and the postponement is not surprising largely because Blagojevich’s co-defendant, William Cellini, is scheduled to go on trial next Monday in the same courtroom.

U.S. District Judge James Zagel, who will preside over both Blagojevich’s sentencing and Cellini’s trial, said in a written order on Monday that the former governor’s sentencing has been postponed “until a further order of the court.”

September 26, 2011 in Celebrity sentencings, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Has the Seventh Circuit essentially abolished substantive reasonableness review?

The question in the title of this post is prompted by the Seventh Circuit's ruling today in US v. Vance, No. 10-3245 (7th Cir. Sept. 26, 2011) (available here), which seems to indicate, in substance and style, that the circuit will always affirm a within-guideline absent a procedural error.  In Vance, a defendant with a long criminal history appealed a within-guideline sentence of nearly 22 years for offenses involving a small amount of crack.  The panel majority set up the issues for review this way:

In this case, the defendant has conceded that the range of 262 to 327 months’ imprisonment was computed correctly.  We therefore apply the presumption of reasonableness and consider whether (1) the defendant’s arguments for a below-Guidelines sentence were given meaningful consideration and (2) the factors that formed the basis of the judge’s sentence were adequately communicated at the hearing.  If these requirements are satisfied, we conclude that the sentence imposed was a reasonable exercise of the sentencing judge’s broad discretion.

As I read this paragraph, it seems the Seventh Circuit really does not merely presume the (substantive) reasonableness of within-guideline sentences.  Rather, this paragraph suggests the Seventh Circuit will consider any and all within-guideline sentences  per se reasonable if the sentencing record below reflects "meaningful consideration" of the defendant's arguments and the district judge's sentencing ruling was "adequately communicated."

To its credit, the Seventh Circuit has applied the most rigorous form of procedural reasonableness review among the circuits: Seventh Circuit panels have often remanded for resentencing after finding that a district judge failed to give "meaningful consideration" to arguments or that a sentencing decision was not "adequately communicated."  But the US Supreme Court in Rita indicated that circuits must conduct substantive reasonableness review as well as procedural reasonableness review after Booker even for within-guideline sentences.  It also hinted in Rita that only a presumption of reasonableness, not a per se affirmance rule, would comply with the Sixth Amendment part of the Booker ruling.

Notably, Judge Williams had a brief dissent in Vance, though she asserts merely that "the proper course of action is a limited remand to ask the judge whether he would have sentenced Vance any differently in light of the disparity in crack and powder career offender guideline ranges in this case."  In other words, she takes no issue with the lack of any substantive review of a 22-year prison sentence for small-fry crack offenses, but rather just urges a limited remand to ensure the district court knew what it was doing. 

Especially given that the defendant in this cases was sentenced after the passage of the Fair Sentencing Act lowered crack sentences dramatically, but before the guidelines were amended to reflect the FSA's reduced sentencing terms, there is a lot that could and probably should be said about the substantive (un)reasonableness of the defendant's sentence here.  But it seems the Seventh Circuit is not merely content, but actually eager, to treat the guidelines as a "sentencing safe-harbor" so that within-guideline sentences are immune from the substantive reasonableness review that the Supreme Court has purportedly required after Booker.  Sigh.

September 26, 2011 in Booker in the Circuits, Drug Offense Sentencing | Permalink | Comments (0) | TrackBack

New call for a (long overdue?) legislative and USSC fix to Booker

Matt Miner, who not long ago served as former Republican staff director for the Senate Judiciary Committee (and now is a partner at White & Case), has this notable new commentary on federal sentencing in today's National Law Journal.  The piece is headlined "It's time to fix our sentencing laws; Years after the Supreme Court put the ball in Congress' court, commission can finally spur action."  Here are excerpts:

The U.S. Sentencing Commission is confronting a challenge to its own existence.  Critics of the commission's budget and inaction on sentencing reform have begun to call for massive cutbacks and even full elimination of the commission.  Yet unlike other agencies that face similar crises, the commission has the power to propose reforms to justify and strengthen its role.

For more than six years — since the U.S. Supreme Court invalidated parts of the federal law governing sentencing policy in Booker v. U.S. — courts have increasingly disregarded the federal sentencing guidelines.  At the same time, racial disparities have increased. The Supreme Court called for policymakers to respond, stating, "The ball now lies in Congress' court."  But more than a half-decade later, neither Congress nor the commission has acted.

The time for action is now, and the commission has the opportunity to urge changes to restore order to our system.  Given the impact of the commission's reports on crack-cocaine sentencing — resulting in passage of the Fair Sentencing Act — a commission-led Booker-fix proposal could be a game changer....

Since Booker, courts have drifted farther from guideline-based sentences, with many courts applying the guidelines less than half the time.  Even more troubling, racial disparities in federal sentencing are on the rise.  According to a recent commission report on demographic disparities post-Booker, the difference in sentences given to black versus white defendants has "been increasing steadily since that decision."

Sadly, racial and educational disparities have grown in a system that is increasingly determined by the judge a defendant draws.  Making matters worse, appellate judges find themselves out of the sentencing business due to the lack of a meaningful appellate standard and the broad discretion retained by district courts....

The appetite for reform appears to have returned.  Conservative law professor William Otis has called for a rewrite of the 1984 Sentencing Reform Act to once again make the guidelines mandatory, albeit with certain enhancements decided by a jury.  And past commission chairman William Sessions, a federal judge, has proposed a grand reform to broaden the discretion given judges under the guidelines, while also restoring certainty and consistency to the system by making the guidelines "presumptive" rather than merely "advisory."

Although such reforms may take time, the commission should immediately recommend basic reforms such as codifying an appellate standard to replace the language struck down by Booker.  The Supreme Court made clear that the standard that existed before the 2003 Feeney amendment would withstand constitutional challenge, and that standard is a worthwhile place to start.  More recent Supreme Court decisions, including U.S. v. Rita, provide further components that could be added to the old appellate review standard, including a presumption of reasonableness for properly calculated sentences within the guidelines.  Additionally, the commission should dem­and reforms that require judges to provide a heightened justification for any major departure from the prescribed guideline sentence.

In the absence of congressional action, federal courts will continue to struggle to apply constitutional principles to fill gaps in the sentencing statute.  In essence, courts will be left to legislate from the bench.

I share Mr. Miner's interest in having the US Sentencing Commission and Congress playing a much more active role in managing and bringing greater legal order to the post-Booker sentencing system.  I also think the "lack of a meaningful appellate standard" is a part of the systemic problem with the status quo.  But I think this commentary overlooks at least three critical realities that must play a central role in any future sentencing reform work by the USSC and Congress:

  1. Crime rates are at historic low levels and have been continuing to trend down since Booker (basics blogged here and here);
  2. Federal prison populations are at record high levels, and the resulting overcrowding and costs must be addressed as soon as possible (as the US Justice Department stressed in its recent letter to the USSC);
  3. Before Booker and perhaps now even more after Booker, the defendant's luck in which prosecutor he draws matters a lot more than what judge he draws (which, as noted here, USSC stats always show).

For me, these three critical realities suggest (at least) three essential guideposts for future federal sentencing reform: (1) "Do no harm": we cannot figure out what is "working" with crime reductions, but we should make extra sure any federal sentencing changes do not reverse national crime trends; (2) "Reduce federal incarceration": we cannot afford stuffing a lot more federal prisoners into limited (and expensive) prison space, and thus we should make extra sure any federal sentencing changes do reverse the system's hyper-incarceration tendencies; (3) "Better regulate prosecutors first": initial USSC efforts to limit the impact of prosecutorial discretion have not really worked, and the USSC and Congress ought to start with prosecutorial guidelines/regulations if there is a genuine concern with enduring federal sentencing disparities.

September 26, 2011 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Great new Rutgers resource reviewing crim books

Via Professor Stuart Green, I am please to be able to relay this notice concerning what looks like a great new criminal justice researcher and reader resource:

Rutgers Law School-Newark and the Rutgers School of Criminal Justice are pleased to announce the launch of a new website called Criminal Law and Criminal Justice Books.   We aim to publish high-quality, timely, and concise on-line reviews of important and interesting new books in criminal law, criminal procedure, and criminal justice. 

Among the great looking new books subject to great looking reviews are:

September 26, 2011 in On blogging, Recommended reading | Permalink | Comments (0) | TrackBack

Noting the significant costs (and unclear benefits) of tracking lots of sex offenders

The economic costs and uncertain benefits of tracking lots of sex offenders is spotlighted by this lengthy local piece out of Ohio, which is headlined "Keeping track of sex offenders costly: Sheriff puts the low end of costs at about $179,000 annually."  Here are excerpts:

Change in laws in the past five years have forced counties to spend thousands of dollars on registering and tracking sex offenders and the way cases are handled in court.   The Butler County sheriff predicts the number of sexual offenders his office must monitor will double in five years, but despite budget woes, he believes keeping vigilant is a high priority.

On average, Sheriff Richard Jones’ office monitors 460 sex offenders. That number jumps to around 700 if juveniles and offenders who only work in the county are included.   The increase in the number of sex offenders will raise the cost of monitoring sex offenders for counties, and some law experts said it will continue to clog the court system....

A low estimate of the cost of dealing with sex offenders is $179,000 annually, Jones said. That number includes salaries for the assistant prosecutor, who handles all cases involving children, the sheriff’s deputies who monitor offenders once they leave prison, mailing costs for notifications that go out to neighbors when a sex offender moves into town and costs to hunt down offenders who have skipped the state and violated reporting requirements....

The across the board changes, with reporting requirements for even the least severe of sex crimes, have also permeated the court system.  Chris Pagan, a defense attorney who has represented people accused of sex crimes, says the law is clogging the docket.  “It is certainly a lot more difficult to settle sex cases now than it was before,” he said.  “People who are truly innocent, the fact that there would be a registration requirement is a deal stopper most of the time.”

Some question why sex offenders are required to register and submit to monitoring, but murderers, robbers, burglars and other criminals remain virtually invisible once they are released from prison.   Matt Kanai, general counsel for law enforcement for the state attorney general’s office, said registration isn’t meant to punish the offenders; it is a tool for the public.  Sex offenders, he said, are viewed as people who will likely attack again, so keeping tabs on them and providing their locations to the public is a service.

“Sex offenders do tend to operate in their neighborhood. Crimes like murder aren’t neighborhood specific.  They are not necessarily looking at everyone that’s mowing their yard or walking down the sidewalk as their next potential victim,” Kanai said.  “Murders happen in the heat of the moment or in a bar or liquor store.  Those people aren’t thinking when I see people walking down the street I want to go murder that person, but sex offenders we do have that concern, that every person is a potential victim.”

However, a study by J.J. Prescott of the University of Michigan and Jonah Rockoff of Columbia University in 2010 found while registering sex offenders appears to be a good, notifying the public is not always a good thing. Public notification may scare away those inclined to be future offenders.  But it appears to actually increase the likelihood that convicted sex offenders will offend again, the study shows analyzing national crime data.

September 26, 2011 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

"Sentencing Shift Gives New Leverage to Prosecutors"

26prosecute-graphic-popupThe title of this post is the headline of this lengthy front-page article appearing in today's New York Times. Here is how it gets started:

After decades of new laws to toughen sentencing for criminals, prosecutors have gained greater leverage to extract guilty pleas from defendants and reduce the number of cases that go to trial, often by using the threat of more serious charges with mandatory sentences or other harsher penalties.

Some experts say the process has become coercive in many state and federal jurisdictions, forcing defendants to weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence. In effect, prosecutors are giving defendants more reasons to avoid having their day in court.

“We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”

One crucial, if unheralded, effect of this shift is now coming into sharper view, according to academics who study the issue. Growing prosecutorial power is a significant reason that the percentage of felony cases that go to trial has dropped sharply in many places.

Plea bargains have been common for more than a century, but lately they have begun to put the trial system out of business in some courtrooms.  By one count, fewer than one in 40 felony cases now make it to trial, according to data from nine states that have published such records since the 1970s, when the ratio was about one in 12.  The decline has been even steeper in federal district courts....

The decrease in trials has also been a consequence of underfinanced public defense lawyers who can try only a handful of their cases, as well as, prosecutors say, the rise of drug courts and other alternative resolutions.

The overloaded court system has also seen comparatively little expansion in many places, making a huge increase in plea bargains a cheap and easy way to handle a near-tripling in felony cases over the past generation.

But many researchers say the most important force in driving down the trial rate has been state and federal legislative overhauls that imposed mandatory sentences and other harsher and more certain penalties for many felonies, especially those involving guns, drugs, violent crimes and repeat offenders.

Stiffer punishments were also put in place for specific crimes, like peddling drugs near a school or wearing a mask in certain circumstances.  And legislators added reams of new felony statutes, vastly expanding the range of actions considered illegal.

These tougher penalties, by many accounts, have contributed to the nation’s steep drop in crime the past two decades.  They have also swelled the prison population to levels that lawmakers in some states say they can no longer afford, and a few have rolled back some laws.

September 26, 2011 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

September 25, 2011

An insightful spin on reform and justice in the wake of the Davis case

I found interesting and compelling today's New York Times op-ed by Ross Douthat, headlined "Justice After Troy Davis."   Here are excerpts:

For many observers, the lesson of [the Troy Davis] case is simple: We need to abolish the death penalty outright.  The argument that capital punishment is inherently immoral has long been a losing one in American politics.  But in the age of DNA evidence and endless media excavations, the argument that courts and juries are just too fallible to be trusted with matters of life and death may prove more effective.

If capital punishment disappears in the United States, it won’t be because voters and politicians no longer want to execute the guilty.  It will be because they’re afraid of executing the innocent.

This is a healthy fear for a society to have.  But there’s a danger here for advocates of criminal justice reform.  After all, in a world without the death penalty, Davis probably wouldn’t have been retried or exonerated.  His appeals would still have been denied, he would have spent the rest of his life in prison, and far fewer people would have known or cared about his fate.

Instead, he received a level of legal assistance, media attention and activist support that few convicts can ever hope for.  And his case became an example of how the very finality of the death penalty can focus the public’s attention on issues that many Americans prefer to ignore: the overzealousness of cops and prosecutors, the limits of the appeals process and the ugly conditions faced by many of the more than two million Americans currently behind bars.

Simply throwing up our hands and eliminating executions entirely, by contrast, could prove to be a form of moral evasion — a way to console ourselves with the knowledge that no innocents are ever executed, even as more pervasive abuses go unchecked.  We should want a judicial system that we can trust with matters of life and death, and that can stand up to the kind of public scrutiny that Davis’s case received.  And gradually reforming the death penalty — imposing it in fewer situations and with more safeguards, which other defendants could benefit from as well — might do more than outright abolition to address the larger problems with crime and punishment in America.

This point was made well last week by Pascal-Emmanuel Gobry, writing for The American Scene.  In any penal system, he pointed out, but especially in our own — which can be brutal, overcrowded, rife with rape and other forms of violence — a lifelong prison sentence can prove more cruel and unusual than a speedy execution.  And a society that supposedly values liberty as much or more than life itself hasn’t necessarily become more civilized if it preserves its convicts’ lives while consistently violating their rights and dignity.  It’s just become better at self-deception about what’s really going on.

Fundamentally, most Americans who support the death penalty do so because they want to believe that our justice system is just, and not merely a mechanism for quarantining the dangerous in order to keep the law-abiding safe.  The case for executing murderers is a case for proportionality in punishment: for sentences that fit the crime, and penalties that close the circle.

Instead of dismissing this point of view as backward and barbaric, criminal justice reformers should try to harness it, by pointing out that too often our punishments don’t fit the crime — that sentences for many drug crimes are disproportionate to the offenses, for instance, or that rape and sexual assault have become an implicit part of many prison terms.  Americans should be urged to support penal reform not in spite of their belief that some murderers deserve execution, in other words, but because of it — because both are attempts to ensure that accused criminals receive their just deserts.

Abolishing capital punishment in a kind of despair over its fallibility would send a very different message.  It would tell the public that our laws and courts and juries are fundamentally incapable of delivering what most Americans consider genuine justice.  It could encourage a more cynical and utilitarian view of why police forces and prisons exist, and what moral standards we should hold them to.  And while it would put an end to wrongful executions, it might well lead to more overall injustice.

The important points made well here by Douthat ought to sound familiar to my former students, as well as to long-time readers of this blog and my traditional scholarship.  The first major symposium I organized a decade ago at Ohio State was titled "Addressing Capital Punishment Through Statutory Reform," and the foreword I authored for the Ohio State Law Journal concluded this way:

[John Stuart] Mill’s insight about capital punishment’s “impression on the imagination” still merits considerable attention, especially when contemplating the potential for, and direction of, future reforms of the death penalty and the entire criminal justice system. Though the punishment of death may not significantly impact the behavior of potential killers, the awesomeness of this punishment indisputably does impact the behavior of our criminal justice institutions.  In particular, we are seeing today the ways in which the drama of the death penalty — the fact that we are, in Mill’s words, “so much shocked by death” — fuels a genuine and considerable interest in legislatures and legislators, and in the public at large, to be particularly cautious and conscientious before fully embracing and comfortably imposing the punishment of death.

The new public awareness of errors in capital cases combined with the death penalty’s “impression on the imagination” is what now is allowing legislators to speak and act more soberly and realistically about a range of criminal justice issues pertaining to capital punishment.  Moreover, because all the major problems identified in the administration of the death penalty — for example, wrongful convictions, racial and other disparities, poor quality and funding of defense counsel — are not unique to capital punishment, but actually plague the entire criminal justice system, advocates who have traditionally opposed  the death penalty because of due process and equal protection concerns should consider taking advantage of the unique opportunity presented by capital punishment’s “impression on the imagination” to work toward developing legislative reforms which would be a step toward remedying problems that infest the entire criminal justice system.

In other words, I am suggesting that Mill’s insight may actually point to a different sort of pragmatic, utilitarian argument for supporting (or at least tolerating) the death penalty.  In modern America, capital punishment’s “impression on the imagination” may be needed to ensure that our legal institutions do not get complacent about problems that pervade our criminal justice system, and may even provide a critical means to engineer remedies to system-wide problems through well-crafted legislative reforms.

A decade after I wrote up these ideas, I still find them compelling and I am very pleased to see the op-ed page of the New York Times reflecting similar sentiments.

A few older and recent posts on the Davis case: 

September 25, 2011 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (28) | TrackBack

Can a sentencing judge give low-level offenders a choice between jail and church?

The question in the title of this post is prompted by this notable local piece from Alabama, which is headlined "Serve Time In Jail...Or In Church?".   Here are the details of a new local faith-based alternative sentencing program:

Non-violent offenders in Bay Minette now have a choice some would call simple: do time behind bars or work off the sentence in church. Operation Restore Our Community or "ROC"...begins next week. The city judge will either let misdemenor offenders work off their sentences in jail and pay a fine or go to church every Sunday for a year.

If offenders elect church, they're allowed to pick the place of worship, but must check in weekly with the pastor and the police department. If the one-year church attendance program is completed successfully, the offender's case will be dismissed.

Bay Minette Police Chief Mike Rowland says it costs his department about 75 bucks per inmate per day. Rowland says the ROC program will be cost-effective and could change the lives of many people heading down the wrong path. So far, 56 churches in North Baldwin County are participating in ROC.

Rowland says the program is legal and doesn't violate separation of church and state issues because it allows the offender to choose church or jail...and the church of their choice.

Perhaps unsurprisingly, not every agrees with the local police chief's assessment of the constitutionality of this program.  As this follow-up piece reports, the "American Civil Liberties Union says Bay Minette must stop a program that will soon allow offenders to choose whether they serve a jail sentence or attend church every Sunday for a year."   Here is more:

The ACLU of Alabama has sent Bay Minette a letter demanding it stop a program that's supposed to start next week. Offenders who successfully complete it would have their cases dismissed.

State ACLU Executive Director Olivia Turner says the alternative sentencing program "flagrantly" violates the Constitution. She says the government cannot force someone to attend church. She says that when offenders must pick between prison or religious services, they do not have a true choice.

September 25, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

"The Place of Repentance in Retributive Sentencing"

The title of this post is the title of this new paper by Itay Lipschits and Rinat Kitai available via SSRN. Here is the abstract:

This manuscript sets forth the normative reasons for taking repentance into account in the frame of criminal retributive sentencing. It claims that change that takes place in people should be recognized as a relevant measure for our attitude toward them. The web of social relations among offender, victim, and society needs to permeate the criminal justice system and the considerations of punishment that it includes. Moreover, repentance may change not only one's future but also illuminate her past. If a person has a right to be punished as a consequence from her being a rational moral agent she may also repent her offense as an autonomous person.

September 25, 2011 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack