September 27, 2011
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 26, 2011
"California To Allow Prisoners To Serve Sentences Online"
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
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.
Lamenting (yet again) extreme death penalty criticism and insufficient LWOP concerns
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:
- Executions number 1268 and 1269 of the modern US capital era go forward in Texas and Georgia
- Residual doubt, race, federalism and finality: which death penalty legal fronts might the Davis case impact?
- Lots and lots of notable death penalty headlines and commentary
- An insightful spin on reform and justice in the wake of the Davis case
- Why I obsess over courts and others obsessing about the death penalty
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..."
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.”
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.
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:
- Crime rates are at historic low levels and have been continuing to trend down since Booker (basics blogged here and here);
- 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);
- 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.
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:
- Convicting the Innocent: Where Criminal Prosecutors Go Wrong
- The Boundaries of the Criminal Law
- Retributivism: Essays on Theory and Policy
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.
"Sentencing Shift Gives New Leverage to Prosecutors"
The 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 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:
- SCOTUS orders innocence hearing in Troy Davis case (Aug 2009)
- "Innocence claim rejected: Troy Davis loses challenge" (Aug 2010)
- "Slain officer's family calls for Troy Davis' execution"
- Georgia board denies clemency to Troy Davis
- Executions number 1268 and 1269 of the modern US capital era go forward in Texas and Georgia
- Residual doubt, race, federalism and finality: which death penalty legal fronts might the Davis case impact?
- Lots and lots of notable death penalty headlines and commentary
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.
"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.