January 29, 2011
Second Circuit balks at genetic sentencing view of federal child porn offender
Though I think the child porn restitution decision by the Eleventh Circuit in McDaniel (discussed here) was the biggest federal sentencing story yesterday, today's New York Times has this piece reporting on another notable appellate ruling in a child porn sentencing setting. The piece is headlined "Court Rejects Judge’s Assertion of a Child Pornography Gene," and it starts this way:
A federal appeals court in Manhattan overturned a six-and-a-half-year sentence in a child pornography case on Friday, saying the judge who imposed it improperly found that the defendant would return to viewing child pornography “because of an as-of-yet undiscovered gene.”
The judge, Gary L. Sharpe of Federal District Court in Albany, was quoted as saying, “It is a gene you were born with. And it’s not a gene you can get rid of,” before he sentenced the defendant, Gary Cossey, in December 2009.
A three-judge panel of the United States Court of Appeals for the Second Circuit said in ruling on the defendant’s appeal, “It would be impermissible for the court to base its decision of recidivism on its unsupported theory of genetics.”
Judges Amalya L. Kearse, John M. Walker Jr. and Rosemary S. Pooler ruled that a sentence relying on findings not supported in the record “seriously affects the fairness, integrity and public reputation of judicial proceedings.”
The panel ordered that Mr. Cossey be resentenced by a different judge, a step it said was taken only where a judge’s fairness or the appearance of fairness was in doubt. “This is one such instance,” the panel said.
The Second Circuit's full work in US v. Cossey, No. 09-5170 (2d Cir. Jan. 28, 2011), is available at this link.
"Conservatives latch onto prison reform"
The title of this post is the headline of this terrific article in today's Los Angeles Times. Here are excerpts:
Reduced sentences for drug crimes. More job training and rehabilitation programs for nonviolent offenders. Expanded alternatives to doing hard time. In the not-too-distant past, conservatives might have derided those concepts as mushy-headed liberalism — the essence of "soft on crime." Nowadays, these same ideas are central to a strategy being packaged as "conservative criminal justice reform," and have rolled out in right-leaning states around the country in an effort to rein in budget-busting corrections costs.
Encouraged by the recent success of reform efforts in Republican-dominated Texas — where prison population growth has slowed and crime is down — conservative leaders elsewhere have embraced their own versions of the strategy. South Carolina adopted a similar reform package last year. Republican governors are backing proposals in Louisiana and Indiana.
The about-face might feel dramatic to those who remember the get-tough policies that many conservatives embraced in the 1980s and '90s: In Texas, Republican Clayton Williams ran his unsuccessful 1990 gubernatorial campaign with a focus on doubling prison space and having first-time drug offenders "bustin' rocks" in military-style prison camps.
Now, with most states suffering from nightmare budget crises, many conservatives have acknowledged that hard-line strategies, while partially contributing to a drop in crime, have also added to fiscal havoc. Corrections is now the second-fastest growing spending category for states, behind Medicaid, costing $50 billion annually and accounting for 1 of every 14 discretionary dollars, according to the Pew Center on the States.
That crisis affects both parties, and state Democratic leaders have also been looking for ways to reduce prison populations. But it is conservatives who have been working most conspicuously to square their new strategies with their philosophical beliefs — and sell them to followers long accustomed to a lock-'em-up message.
Much of that work is being done by a new advocacy group called Right on Crime, which has been endorsed by conservative luminaries such as former House Speaker Newt Gingrich, former Education Secretary William J. Bennett, and Grover Norquist of Americans for Tax Reform. The group has identified 21 states engaged in some aspect of what they consider to be conservative reform, including California.
On its website, the group concedes that the "incarceration-focused" strategies of old filled jails with nonviolent offenders and bloated prison budgets, while failing to prevent many convicts from returning to crime when they got out.... The right's embrace of ideas long espoused by nonpartisan and liberal reform groups has its own distinct flavor, focusing on prudent government spending more than social justice, and emphasizing the continuing need to punish serious criminals....
There are other conservative elements to the argument, including a criticism of the "overcriminalization" of business and a push for more incentive-based policies, like a 2009 California plan that pays cash bonuses to county probation agencies that lower recidivism.
Reform in Texas has been relatively well received among conservatives, in part because of the results, and in part because of a good sales job. Texas is among a number of states that have received guidance from the Pew Center's Public Safety Performance Project, which promises that reforms will be data-driven and not affect public safety.
In March, two research companies polled 1,200 U.S. voters and conducted focus groups for Pew, then suggested "effective messages" for lawmakers interested in reform. Among the tips: Focus on the success in Texas, given its "strong law-and-order reputation." And avoid arguments based on "racial justice concerns."
As detailed in prior posts linked below, I have been following this still-developing story for quite some time. There are two especially important "insider" points about the "Right on Crime movement" not stressed in this otherwise effective piece: (1) after the 2010 election, Republicans are in firm governing control in many states with the biggest prison budget problems, and thus this movement helps provide political cover for those Republican leaders who (sensibly?) prefer cost-cutting prison reforms to tax increases, and (2) Newt Gingrich has taken up this issue at the same time he seems to be talking serious about making a run for Republican nomination for President in 2012.
These two "insider" points are especially important because, in my mind, they minimize the prospect of this movement being only a short-term phenomenon for only a few libertarian-minded conservatives. Budget problems for red (and blue) states with large prison populations are not going away any time soon, and the political profile of Newt Gingrich does not seem likely to fade in the next few election cycles.
Meanwhile, as highlighted by this new New York Times article, which is headlined "As Republicans Resist Closing Prisons, Cuomo Is Said to Scale Back Plan," the Right on Crime movement has not yet transformed the usual left-right political debates over criminal justice reform in all regions of the country. Like politics generally, all prison reform politics is ultimately local.
Some recent and older related posts on the modern politics of sentencing issues:
- "Right on Crime: The Conservative Case for Reform" officially launches
- When and how will state GOP leaders start cutting expensive criminal justice programming?
- New poll reports that large majority of Americans consider "War on Drugs" a failure
- Examining the politics of crime and punishment in modern gubernatorial settings
- Do "mama grizzlies" have a particular approach to crime and punishment issues?
- "Pot and the GOP: Is the party of ‘Just Say No’ morphing into the party of ‘Just Say Grow’?"
- Can GOP "Pledge to America" be read to suggest drawing down federal involvement in the drug war?
- Green tea party: will Glenn Beck or Sarah Palin or other professed liberty lovers support ending pot prohibition in California?
- Why doesn't the new Liberty Central website say anything about mass incarceration or the drug war or any criminal justice issues?
- What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
AP finds most states running out of drugs for lethal injection executions
As detailed in this AP article, headlined "Most capital punishment states have run out of key injection drug, or will soon," some states may need to start looking for new ways to execute condemned murderers. Here are the basics:
Most of the 35 U.S. states with capital punishment have run out of a key lethal injection drug or will soon, according to an Associated Press review. And in many places, switching to another drug could prove a difficult, drawn-out process, fraught with legal challenges from death row that could put executions on hold.
The drug, an anesthetic called sodium thiopental, has become so scarce over the past year that a few states have had to postpone executions. Those delays could become widespread across the country in the coming months because of a decision last week by the sole U.S. manufacturer to stop producing it. States have begun casting about for new suppliers or substitute drugs. "We're wearing out our options," Mississippi Corrections Commissioner Chris Epps said.
Switching to another drug will take more than the stroke of a pen in most places: Several states have lengthy regulatory and review processes. Moreover, any change in the drug used — or the supplier — could lead to lawsuits from inmates demanding proof that the substance will not cause suffering in violation of the U.S. Constitution's ban on cruel and unusual punishment. Some inmates have already raised such arguments....
The AP review found that some states are well-stocked. Nebraska has amassed 500 grams from a company in India, and it doesn't expire until 2012. California, which has the nation's largest death row with 718 inmates and had to delay an execution last September in part because of the shortage of sodium thiopental, obtained from a British company 521 grams that won't expire until 2014.
Other states are in a more precarious position. Texas' supply of 118 grams expires in March, and the nation's busiest execution state has two executions set for February, one in May and one in July. Over the past decade, Texas has executed almost two dozen inmates a year on average. Mississippi's cache of 12 grams and Missouri's 40-gram supply also expire in March. While neither state has an execution scheduled, Missouri's highest court is considering requests to set execution dates for nine inmates, and Mississippi has one inmate who has exhausted his appeals....
Seventeen states that use the drug have no supply at all: Colorado, Connecticut, Delaware, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maryland, Montana, Nevada, New Hampshire, North Carolina, Oregon, Utah, Washington and Wyoming. None of those states has an execution scheduled. The federal government and several states, including Alabama, Arkansas, Florida, Illinois, Pennsylvania and Virginia, did not respond to the AP or refused to disclose details about their supply.
States don't have to look far for another option. Pentobarbital, a surgical sedative that is sometimes employed in assisted suicides and is commonly used to destroy dogs and cats, was adopted by Oklahoma last year as part of its three-drug combination and has been used for three executions. Ohio announced Tuesday it would become the first state to use pentobarbital all by itself to put inmates to death.
However, the use of pentobarbital in executions has yet to be reviewed by the U.S. Supreme Court, which last tackled the constitutionality of injection in 2008 when it approved the three-drug method.
In Kentucky, where the entire stockpile of sodium thiopental has expired, a switch requires an administrative process that typically lasts six months. Similar hurdles exist in California, Maryland and Nebraska. Even states that require only a prison official to sign off on a switch — including Texas, Ohio and Tennessee — could face a flurry of challenges.
Some recent related posts:
- US company, pressured by Italy, suspends production of lethal injection drug
- Ohio swiftly announces change to drug to be used in its lethal injections
- Oklahoma poised to complete last execution of 2010 with new drug in three-drug protocol
- "Anesthesia shortage may delay executions"
- A new kind of legal attack on lethal injection drug in Arizona
- "Drug expiration date pushes CA execution to brink"
January 28, 2011
Eleventh Circuit publishes (first?) circuit opinion affirming restitution in sentencing of child porn downloader
An Eleventh Circuit panel has an important ruling today in US v. McDaniel, No. 09-1503 (11th Cir. Jan. 28, 2011) (available here), concerning the federal law and practice of imposing restitution terms in sentences for downloaders of child porn. Here is how the McDaniel opinion begins along with some of the key legal determinations within the opinion:
Ricky Lee McDaniel was convicted of possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A). The district court sentenced him to 60 months of imprisonment and three years of supervised release and ordered him to pay restitution to “Vicky,” a child depicted in one of his images. McDaniel asks whether 18 U.S.C. § 2259 requires a showing of proximate cause, and if so, whether the district court clearly erred in ordering restitution. For the following reasons, we affirm....
First, we agree with the district court that McDaniel “harmed” Vicky under the meaning of section 2259(c) by possessing images of her sexual abuse as a minor.... Like the producers and distributors of child pornography, the possessors of child pornography victimize the children depicted within. The end users of child pornography enable and support the continued production of child pornography. They provide the economic incentive for the creation and distribution of the pornography, and the end users violate the child’s privacy by possessing their image. All of these harms stem directly from an individual’s possession of child abuse images. Thus the district court did not err in finding that Vicky was a victim of McDaniel’s possession of child pornography, and consequently, that she is eligible for restitution under section 2259....
Next, we hold that section 2259 limits recoverable losses to those proximately caused by the defendant’s conduct.... [T]he plain language of section 2259 ... covers, inter alia, “losses suffered by the victim as a proximate result of the offense.” § 2259(b)(3)(F)....
McDaniel next argues that his conduct did not proximately cause Vicky’s harm. Instead, he contends that her father and the distribution of the images caused her harm, and by the time he possessed the images, the harm had already been done. He asserts that restitution is appropriate only in cases where the defendant actually sexually abused a child or produced the child pornography because, in those cases, the defendant’s conduct actually harmed the child.
We disagree. Dr. Green explained that each NCMEC notification adds to the “slow acid drip” of trauma and exacerbates Vicky’s emotional issues. He testified that each notification is “extraordinarily distressing and emotionally painful” to Vicky and that Vicky suffers “each time an individual views an image depicting her abuse.” We are not “‘left with the definite and firm conviction that a mistake has been committed.’” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985).... Consequently, the district court did not clearly err in finding that McDaniel’s possession proximately caused Vicky’s losses.
As a policy matter, I favor child porn downloaders having to pay some restitution to the children harmed and depicted in the pictures they download. And, in this case, "the court ordered McDaniel to pay Vicky $12,700" to help cover the costs of therapy for Vicky, which does no seem like an unreasonable award under the circumstances. But, for two reasons articulated below, I am struggling somewhat with how the McDaniel opinion gets to its ultimate conclusions on proximate cause in order to affirm the restitution award imposed by the district court.
1. As the explained in the opinion, Vicky was notified that McDaniel had downloaded her picture onlybecause the "National Center for Missing and Exploited Children (NCMEC) compares images and identifies the children depicted within [and] notifies an identified victim every time someone is arrested who is found to possess his or her image [and] the Government submitted McDaniel’s collection of images and videos to the NCMEC for identification of known victims after McDaniel’s re-indictment in June 2008." In other words, Vicky would never have known McDaniel had possessed her picture but forthe feds submitting the picture to the NCMEC andthe NCMEC altering Vicky that yet another person had her picture. In lots of jurisdictions, the independent acts of the feds and the NCMEC might well be viewed as "breaking the chain" of causation between McDaniel's offense of possession and the "slow acid drip" harms she experiences.
2. Relatedly, given that "Vicky sought approximately $185,000 for past psychological services and future counseling and therapy, and $3,500 in attorneys’ fees," and given that a witness testified that "Vicky would need approximately $166,000 to $188,000 of future counseling or therapy because of the damages she incurred from the original abuse and her awareness of the images on the Internet," it is unclear how the district court decided the restitution award here should be $12,700. Why not an award of the full amount of the cost of her future therapy? Alternatively, why not find out from the NCMEC how many times they have notified Vicky about her picture (which I suspect is hundreds, if not thousands, of times), and apportion the award accordingly?
Intrguingly, in a footnote to support its holding that proximate cause is required, the McDaniel opinion cites a key Fifth Circuit ruling to stress that "if there was 'no proximate cause requirement in the statute, a restitution order could hold an individual liable for a greater amount of losses than those caused by his particular offense of conviction.' In re Amy, 591 F.3d 792, 794 (5th Cir. 2009)." In turn, shouldn't the Eleventh Circuit be worried that requiring McDaniel to pay $12,700 for possessing a picture that hundreds (and perhaps thousands) of persons have possessed does not in fact make liable for a greater amount of losses than those caused by his particular offense of conviction? (McDaniel may not have appealed the amount of restitution awarded, but lots of district court have struggled and split over these issues that quickly get implicated once proximate cause is held to be a required showing.)
Is it inhumane for a "giant" criminal to be incarcerated in a small cell?
The question in the title of this post might seem like an abstract query for those like Adam Kolber and the many others currently engaging in a robust theoretical debate about the significant of subjective experience to punishment theory and policies (see papers here and here and here and here and here and here for just a portion of this debate). In fact, as detailed in this new BBC article, the question is currently before a court at The Hague:
A Dutch prisoner described by his lawyer as a giant has gone to court over the size of his single cell, arguing that it is inhumanely small. The prisoner, 2.07m tall (6ft 9in) and 230kg (36st), says he cannot properly sleep or use the toilet.
Prison officials have tried to relieve his discomfort by adding a a 2.15m plank and an extra mattress to his bed. Named by his lawyer as Angelo MacD., he is asking to complete his two-year sentence for fraud under house arrest.
His lawyer, Bas Martens, told a court in The Hague that his client's conditions of detention violated the European Convention on Human Rights. He insisted that MacD. was not trying to get out of serving his time. "My client just wants to serve a comparable sentence without pain," Mr Martens told Radio Netherlands....
"He is 2.07m tall and a metre wide and a metre deep," he said. "He is not obese. He is a giant. He even walks like a giant, like out of the comic books."
MacD. began his sentence on 29 September and is not due for release until 12 April 2012. His cell in a prison in the south-western town of Krimpen aan de IJssel would probably be adequate for most prisoners but for him, the problems start in the doorway, where he must bow his head to pass through.
His bed, which is fixed to the wall, is 77cm wide and 1.96m long, according to a sketch provided by Mr Martens. This means that his client must sleep on his side ... [and] he now has to "sleep with one eye open in case he falls out of bed", Mr Martens said.
To take a shower, he must first wedge himself into the cubicle, then crouch down under the head. So tiny and low is his toilet, he complains, that "visits" must be kept to the absolute minimum.
Other alleged problems included a lack of adequate space for family visits and suitable seating in the prison canteen. Mr Martens pointed out that his client was unable to do prison work for similar reasons, despite this being a requirement of his sentence.
A court ruling on the case is expected early next month.
January 27, 2011
Drug policy discussed by President Obama after YouTube questions
As detailed in this CBS News piece, which is headlined "Obama: Drugs Should be Treated as a Public Health Problem," President Obama today gave a serious answer to some serious questions about federal drug policies:
Responding to a deluge of questions regarding marijuana and drug policy that came from YouTube, President Obama today said he is not in favor of drug legalization. However, acknowledging that the "war on drugs" has not been effective, Mr. Obama said he thinks of drugs as "more of a public health problem."
More than 140,000 questions were submitted to the president on the video website for his virtual question-and-answer session today. YouTube visitors cast more than 1 million votes, rating the questions positively or negatively. According to the Huffington Post, 198 of the 200 highest-rated questions related to drug policy.
While drug policy is hardly a top priority in Washington, Mr. Obama said it is an "entirely legitimate topic for debate."... Mr. Obama said ... that focusing the United States' drug policy on arrests, incarceration and interdiction has not had ideal results. Instead, he said, there should be more focus on decreasing demand for drugs, by treating them as other public health concerns like smoking or drunk driving. "Typically, we've made huge strides over the last 20 to 30 years by changing people's attitudes" on those issues, he said.
The same is not true for illegal drugs. The annual National Survey on Drug Use and Health released last year showed that the rate of illicit drug use rose from 8 percent in 2008 to 8.7 percent in 2009.
Mr. Obama said today that more resources could go towards drug rehabilitation so that those looking for help from a drug treatment program do not have to wait for months for assistance. He also said there should be a way of steering nonviolent, first-time drug offenders "into the straight and narrow."
Re-lists has experts pondering possible SCOTUS reconsideration of Almendarez-Torres
Anyone who has missed deep discussions of the Sixth Amendment and Apprendi jurisprudence in recent sentencing discussions — and you know who you are, fellow sentencing geeks — will likely get real excited upon reading this terrific new post by John Elwood at SCOTUSblog, which is titled "Re-list watch: Will the Court reconsider Almendarez-Torres?". The post merits a close read in full by all Apprendi aficionados, as this partial excerpt from the start and end of the post highlight:
In the landmark decision Apprendi v. New Jersey (2000), the Supreme Court held that a judge may increase a sentence only if the enhancement was based upon facts found by a jury beyond a reasonable doubt. The rule recognized only a single exception (and that grudgingly): the fact of a prior conviction, which the Court had narrowly upheld in Almendarez-Torres v. United States (1998), over the dissent of Justices Scalia, Stevens, Souter, and Ginsburg.
Almendarez-Torres has been subject to substantial criticism from the moment Apprendi was decided. The Apprendi majority itself acknowledged that “it is arguable that Almendarez-Torres was incorrectly decided.” And in a concurrence, Justice Thomas, who had been in the majority in Almendarez-Torres, said that he had “succumbed” to “error” in providing the fifth vote for that decision....
As noted here, the Court called for a response with respect to two petitions that ask the Court to reconsider Almendarez-Torres: Ayala-Segoviano v. United States, 10-5296, and Vazquez v. United States, 10-6117. Since the government filed briefs in opposition, the Court has relisted those cases three times, at the January 7, 14, and (apparently) 21 Conferences.
It is impossible to know with any certainty what the repeated relists mean. The relatively lengthy delay of three relistings suggests to me that someone has drafted an opinion dissenting from the denial of cert. — if the past is any indication, Justice Thomas, who has the zeal of the converted on this issue. I’ve discussed these cases with Tom, who thinks that Justice Kagan may be deciding whether to vote to grant. While on the Second Circuit, then-Judge Sotomayor noted the “tension between the spirit of [United States v.] Booker [(2005)] — that all facts that fix mandatorily a defendant’s sentence should be found by a jury or admitted by the defendant — and the Supreme Court’s decision in Almendarez-Torres,” but of course she was “bound by the Supreme Court’s ruling” in that case. United States v. Estrada (2d Cir. 2005).
Ayala-Segoviano and Vazquez will give us our first indication of what Justices Sotomayor and Kagan think about the validity of Almendarez-Torres — and about whether stare decisis warrants maintaining one of the most-criticized criminal law precedents still on the books. The change in the Court’s personnel (particularly the replacement of Justice Stevens with Justice Kagan) may mean there is finally a fourth vote to grant.
Pennsylvania auditor urging state sentencing reform to reduce prison costs
A sure sign of the modern budget and sentencing times is this local story from Pennsylvania which reports on the state auditor urging criminal justice reforms. The piece is headlined "Wagner endorses GOP bill to lessen Pennsylvania prison costs," and here are excerpts:
Calling for an end to new prison construction, Auditor General Jack Wagner today urged the Legislature to approve a Senate Republican's bill making it easier to send non-violent offenders to alternative-sentencing programs.
Wagner, a Beechview Democrat, issued a "special report" outlining the 500 percent growth in Pennsylvania's prison population from 8,243 in 1980 to 51,487 in 2010. In 2009, Pennsylvania had the highest number of new inmates — 2,122 — of any state.
The cost per inmate nearly tripled from $11,477 in 1980 to $32,059 in 2009, Wagner said. The overall cost to taxpayers increased from $1.17 billion to $1.6 billion over the past decade, a 37 percent increase, he said. As the state faces a $4 billion to $5 billion budget deficit, it's imperative that lawmakers consider reductions in Department of Corrections spending, which historically has been "sacrosanct," Wagner said....
The state plans to spend $862 million for four new correctional institutes and four new housing centers, and the 4,000 additional beds are expected to be filled as soon as construction is completed, Wagner said. Wagner suggested a moratorium on new construction after these are built.
Gov. Tom Corbett, a Shaler Republican, is better equipped than any other governor over the past 30 years to address corrections issues as former state attorney general, former U.S. attorney and one-time head of the Pennsylvania Commission on Crime and Delinquency, Wagner said.
"Century knocked off man's terror-support sentence"
The title of this post comes from the headline of this AP story, which gets started this way:
In the shadow of 9/11, the conviction and 155-year sentence handed down to Hezbollah supporter Mohamad Hammoud was considered a milestone in the fight against terrorism and a strong warning to people who sent money to support militant groups.
A federal judge knocked more than a century off that sentence Thursday, saying it turned out to be "grossly disproportionate" for the first man convicted under a key terror-fighting legal strategy.
Instead, Judge Graham Mullen ordered Hammoud to serve 30 years in prison for smuggling cigarettes and sending $3,500 of the profits to Hezbollah. The new sentence means the 37-year-old from Lebanon will spend an additional two decades in prison, then likely be deported to his homeland. "The crime represented here was not as serious as other terrorism cases," Mullen said.
His attorneys wanted Hammoud to walk out of the courtroom with a sentence of the more than 10 years he already served on charges that include providing material support to terrorists. They contend he sent the money to a wing of Hezbollah that helps provide Middle Eastern communities with clean water and good housing, not the military wing labeled terrorists by the United States government for numerous attacks on Israel.
Lots of notable new headlines on lethal injection practice and politics
The morning's papers are brimming with interesting stories about lethal injection practices:
From ABC News here, "Jared Loughner Researched Pain of Lethal Injection Before Alleged Attack:
From the AP here, "Drug maker asks Ohio, Oklahoma not to use sedative for putting inmates to death"
From The (UK) Independent here, "Execution using UK drugs 'may have gone wrong'"
From the Lincoln Journal Star here, "Nebraska bought enough lethal injection drug for 166 executions"
All these stories have interesting facets, though I find uniquely intriguing the reality that Nebraska now has a huge lethal injection drug supply even though it has only 12 murderers on its death row and has conducted only three executions in the last 40 years. Perhaps Nebraska will try to turn a profit by selling some of its supply to more active death penalty states states like Ohio, Oklahoma and Texas.
"Is the judicial system sexist when it comes to sex crimes?"
The provocative question in the title of this post is from the sub-headline of this local article from Florida, which carries the main headline "Do Female Sex Offenders Receive a Lighter Punishment Compared to Males?". Here is the story of the case prompting these questions:
Sentencing for an Okaloosa sex offender has sparked a lot of discussion. 31-year old Michelle Kemp had sex with a 15-year-old boy but she will not be going to prison. The lawyers on both sides of the case insist, when it comes to sex crimes, the judicial system is not sexist
Michelle Kemp was arrested back in August 2009 for having sex with a 15-year-old. The boy's family decided not to press charges if the relationship stopped -- but it didn’t. In December, Kemp drove more than 100 miles from her home in Crestview to pick the boy up at a drug treatment center in Bay County, where the two had sex again.
Kemp was arrested again and charged with 2nd degree felony lewd and lascivious battery. She faced up to 15-years in prison but walked away with just 2 years of house arrest and 3 years of probation. The case is strikingly similar to one that received national attention back in 2005 when former Tampa middle school teacher Debra Lafave had sex with a 14-year old boy. Lafave received house arrest and probation, but no prison time.
It was a very different case for Tim McGarry. The former Thomas Drive Fire Chief is serving a 40-year sentence for having sex with underage girls. The disparity in treatment makes some wonder if the judicial system is sexist when it comes to sex crimes.
District 1 Chief Assistant State Attorney Bill Bishop says no. "We don't make any distinction one way or another whether or not someone who commits a sexual offense is a male or a female. We make our decisions based on the evidence we have available and the witnesses we have available to prosecute" Bishop says.
In Kemp's case, the victim would not cooperate with authorities. Kemp’s attorney, Jonathon Dingus says gender did not play a role in her sentencing. "She was treated the same in a scenario like we have here where the complainant didn't want to go through the trial" Dingus says.
I am not at all surprised to hear the lawyers involved in a spotlighted case deny that gender had an impact at sentencing. But, based on my own impressions from blogging lots of sex offense sentencing outcomes, I would also not be at all surprised if a statistical study controlling for other factors showed that women typically get lower sentences for sex crimes than men, especially when the crime involves consensual sexual encounters with young teens. Of course, such a study would not necessarily provide proof of sexism: sentencing judges may generally (and correctly?) conclude that female sex offenders are generally less likely to recidivate than men.
January 26, 2011
Federal fiscal discipline at DOJ might mean increases in good-time credits
A helpful reader pointed me to this notable new Wall Street Journal article headlined "Budget Cutting Starts at Justice Department." Here are excerpts that ought to intrigue sentencing law and policy fans:
As President Barack Obama finalizes his proposals to increase federal funding for his priority programs, the White House is searching for ways to reduce spending elsewhere in the federal government.
At the Justice Department, officials are considering whether to shorten some federal prison terms and have already shut down a program that successfully encouraged fugitive criminals to turn themselves in. The department — which saw years of rapid growth after the 2001 terrorist attacks — is just one of the federal agencies facing significant belt-tightening at a time of rising worries about the federal budget deficit.
The president, in his State of the Union speech Tuesday, said he planned to seek more federal money for education, transportation and energy. At the same time, he called for a five-year freeze on non-security, discretionary government spending. To accomplish both goals, some other programs will have to go.
So the White House Office of Management and Budget, in discussions with departments and agencies, has proposed numerous cuts that could be included in the president's final budget proposal, to be sent to Congress in February. At Justice, according to internal documents reviewed by The Wall Street Journal, OMB's proposals include:
—Increasing the amount of time deducted from prison terms for good behavior, which would immediately qualify some 4,000 federal convicts for release, and another 4,000 over the next 10 years.
Pedophile who claimed child porn kept him from molesting kids gets two (consecutive!) life sentences for the porn
Especially in the wake of the recent robust debate on this blog concerning police stings and on-line child sex offenses (following this post), I found this new state sentencing story out of Texas quite intriguing. The piece is headlined "Child pornographer gets two life terms; Previously served 10 yrs in prison for molestation," and here are the specifics:
A 35-year-old Round Rock man is getting two life sentences -- to run consecutively -- after he pleaded guilty to two counts of promotion of child pornography.
The case surrounding Kevin Charles Baley came to light in April 2010 when an undercover investigator from New Hampshire contacted the Round Rock Police Department saying Baley had been corresponding online with the investigator -- who had been pretending to be a 13-year-old boy.
The investigator told police he met Baley on a website frequented by pedophiles and that Baley had sent sexually explicit messages and e-mailed pornographic photos. Based on this and additional information, Round Rock officers got a search warrant for Baley’s house and seized several computers, digital storage devices and printed materials.
Authorities said a forensic examination revealed more than 1,500 photographs and 50 video clips of graphic child pornography. Police also found printed child pornography materials in Baley’s bedroom.
During an interview with Round Rock police, Baley confessed to communicating with what he thought was a young boy. Police said he admitted he was a pedophile and preferred to talk with prepubescent children. According to police, Baley said: “I know it’s a messed up way of thinking, but looking at the pictures keeps me from reoffending or finding another victim."
Baley has previously been convicted of indecency with a child in Williamson County, serving 10 years in prison for molesting a 10-year-old girl in 1994.
I believe Texas still has parole, and thus this defendant may still have a chance at eventual release, though perhaps an expert on Texas sentencing law knows the potential impact of the fact that the life sentences here run consecutively. And if the defendant in fact now has little or no chance of ever getting paroled, there is obvious irony to the possibility that he might have ultimately gotten a lesser sentence had he actualy committed another actual molestation instead of taking his perversions on-line.
Notable comments about federal sentencing trends from Senator Charles Grassley
A helpful reader pointed out to me that US Senator Charles Grassley had these notable comments about federal sentencing law and practice at the end of this lengthy statement prepared for today's Senate Judiciary Committee hearing on fraud prosecutions:
Finally, Mr. Chairman, I'd like to note that regardless of the substantive laws we pass, the investigative and law enforcement resources appropriated, and the prosecutions brought so far, criminal fraud will not be adequately deterred unless we revisit the Supreme Court's decision in United States v. Booker. In that case, the Supreme Court held that mandatory Sentencing Guidelines violated the Sixth Amendment. Now that the Guidelines have been held to be merely advisory, the disparity and unfairness in judicially imposed sentences that we sought to eliminate on a bipartisan basis are returning, especially in two areas: child pornography and fraud cases of the type we are discussing today. If potential fraudsters view the lenient sentences now being handed down as merely a cost of doing business, efforts to combat criminal fraud could be undermined.
Supporting this position is a Reuters analysis of 15 insider trading cases that were brought by the United States Attorney in New York in 2009 and 2010, which concluded that in 13 of them, or 87 percent, the sentences imposed were lighter than the terms prescribed by the Sentencing Guidelines, and seven, nearly half, contained no prison term. By contrast, in other cases, New York federal judges issued sentences below those called for in the guidelines 57 percent of the time, in itself a shocking change from the system that the Sentencing Reform Act of 1984 created until the Supreme Court's Booker decision. Nationwide, 42 percent of all federal sentences were below the guidelines. Federal judges often seem not to understand the seriousness of these crimes. At one sentencing proceeding in an insider trading case, Judge Alvin Hellerstein said, "[T]here are no victims in this crime, at least not in any real sense." Rather than imposing a sentence in keeping with the guidelines of 37 to 46 months, he noted that the defendant was an accomplished academic with an autistic son, and gave three years' probation. Most of the defendants who received lenient sentences did not cooperate with the government. As a result, defense lawyers are now arguing that to avoid disparity, their non-cooperating insider trading clients should also receive sentences below the guidelines.
Iowa legislature considering response to Graham allowing juve parole eligibity after 25 years
This local story, headlined "Bill changes Iowa’s sentencing laws for some juvenile felons; Legislation would put state in compliance with a 2010 U.S. Supreme Court ruling," indicates that the Iowa legislature is working on what sounds like a sound response to last year's Graham Eighth Amendment ruling. Here are the basics:
Some juvenile offenders who were convicted of felonies and sentenced to life without parole would be eligible for release hearings after serving 25 years if a study bill now before the Iowa Senate Judiciary Committee becomes law.
The proposed legislation, reproduced in full below, comes in response to a 2010 U.S. Supreme Court ruling, Graham v. Florida. The high court ruled that sentencing juveniles who did not commit murder to terms of life without the possibility of parole constituted cruel and unusual punishment and was a violation of Eighth Amendment rights.
The decision has sparked appellate cases throughout the nation, and posed a significant problem in Iowa because current sentencing law does not provide minimum prison terms used to establish a timeline for parole. Absent such mandatory minimum sentences, state judges have set aside state laws that conflict with the federal ruling and found at least one such offender to be immediately eligible for release review....
The study bill now before Iowa lawmakers sets a mandatory minimum of sentence of 25-years for offenders who commit class A felonies (excluding homicide) while under the age of 18.
"Ohio Mom Kelley Williams-Bolar Jailed for Sending Kids to Better School District"
The title of this post is the headline of this new piece from ABC News covering a crime and punishment story that has been generating controversy in northeast Ohio and now is becoming a topic of national discussion. Here are the basics:
An Ohio mother's attempt to provide her daughters with a better education has landed her behind bars.
Kelley Williams-Bolar was convicted of lying about her residency to get her daughters into a better school district. "It's overwhelming. I'm exhausted," she said. "I did this for them, so there it is. I did this for them."
Williams-Bolar decided four years ago to send her daughters to a highly ranked school in neighboring Copley-Fairlawn School District. But it wasn't her Akron district of residence, so her children were ineligible to attend school there, even though her father lived within the district's boundaries.
The school district accused Williams-Bolar of lying about her address, falsifying records and, when confronted, having her father file false court papers to get around the system.
Williams-Bolar said she did it to keep her children safe and that she lived part-time with her dad. "When my home got broken into, I felt it was my duty to do something else," Williams-Bolar said....
The district hired a private investigator, who shot video showing Williams-Bolar driving her children into the district. The school officials asked her to pay $30,000 in back tuition. Williams-Bolar refused and was indicted and convicted of falsifying her residency records.
She was sentenced last week to 10 days in county jail and put on three years of probation. She will also be required to perform community service.
As a commentary at Salon highlights, many people have had many strong reactions to this case because of the race and class dimensions of a poor black mom being jailed for trying to ensure her kids have access to the same school opportunities as the kids of rich white parents. And a commentary at Reason rightly spotlights that another part of the story is the exercise of prosecutorial discretion, as state prosecutors were apparently unwilling to offer the mom the opportunity to plead guilty to only a misdemeanor.
Virginia state senator urging study of physical castration for sex offenders
As detailed in this AP piece, a "Virginia legislator is proposing castrating sex offenders as an alternative to the increasing costs to detain and treat them after they've served their prison sentences." Here is more:
Republican Sen. Emmett Hanger's bill would require the state to study the use of physical castration as an alternative to civil commitment for sexually violent predators. A similar proposal was vetoed four years ago.
The civil commitment program's budget grew from $2.7 million in 2004 to $24 million this year. Gov. Bob McDonnell has proposed spending nearly $70 million over the next two years to meet the increasing demands.
Eight other states allow for some form of castration for sex offenders, according to the National Conference of State Legislatures. Only Louisiana and Texas allow for physical castration.
Some related recent and older posts:
- "Cost of sex offender program shocks lawmakers"
- Isn't chemical castration worth trying if it works?
- "Sex-Offending Teacher Asks for Castration"
- Alabama legislators discussing castration and other novel punishments for sex offenders
- Are there reliable data on the efficacy of chemical castration?
- "Europeans Debate Castration of Sex Offenders"
- "Argentina province OKs chemical castration for rapists"
- Huff Post commentary urging stiffer sentences and chemical castration for sex offenders
January 25, 2011
Ohio swiftly announces change to drug to be used in its lethal injections
As detailed in this AP story, the Ohio Department of Rehabilitation and Correction today announced that it is "switching its lethal injection drug from a scarce anesthetic to one commonly used in surgery as a shortage of the drug normally used for executions has worsened." Here are more details:
Beginning in March, the state execution team will use a single, powerful dose of pentobarbital, a drug sometimes used to induce surgical comas. The drug replaces sodium thiopental, which was already scarce when its only U.S. manufacturer announced last week it would no longer produce it.
Ohio is following the lead of Oklahoma, which switched to pentobarbital last year and has since used it three times. However, Ohio, which uses only a single dose of anesthetic to execute inmates, would become the first state to use pentobarbital alone, without two additional drugs that paralyze inmates and stop their hearts.
Ohio prison officials say the version of pentobarbital the state is adopting is a different type of the drug than one used by veterinarians to euthanize pets. The prisons department said it will use its remaining supply of sodium thiopental for the scheduled execution Feb. 17 of Frank Spisak, who killed three people at Cleveland State University in 1982.
The first use of pentobarbital is planned for March's scheduled execution of Johnnie Baston of Lucas County, condemned to die for shooting the owner of a Toledo store in the back of the head during a 1994 robbery....
The state nearly ran out of the drug last spring and almost had to postpone an execution before obtaining some at the last moment. Ohio has no more executions currently scheduled, but prosecutors have asked the Ohio Supreme Court to set additional dates for 14 men whose appeals are concluded....
States across the country have scrambled to find supplies of sodium thiopental after Hospira Inc., of Lake Forest, Ill., the drug's lone U.S. manufacturer, stopped producing it more than a year ago....
Arizona, Arkansas, California and Tennessee are among states that found a supply of sodium thiopental in England, but that source dried up after the British government banned the drug's export for use in executions. Earlier this month, Nebraska announced it had obtained 500 grams from a company in India.
Former GTMO detainee gets LWOP federal sentence despite jury acquittal on hundreds of counts
As detailed in this CBS News report, which is headlined "Ghailani Gets Life Sentence for Embassy Plot," a high-profile defendants high-profile acquittal on lots and lots of charges did not do him much good at sentencing in federal court today. Here are the details:
The first Guantanamo detainee to be tried in a civilian court has been sentenced to life in prison. A federal judge in Manhattan imposed the term Tuesday on 36-year-old Ahmed Ghailani of Tanzania.
Ghailani was acquitted late last year of more than 200 counts of murder and dozens of other charges related to an al Qaeda attack in 1998 on U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. The jury convicted him of a single count of conspiring to destroy government buildings....
The defense sought to convince the judge Ghailani deserved leniency because he didn't have firsthand knowledge of the scheme. They also said the CIA tortured him after his capture. Prosecutors argued for a life sentence. They said Ghailani knew about the plot all along and was a key player....
Ghailani's five-week civilian jury trial last Fall was the first for a post-9/11 prisoner once held at the U.S. naval base in Guantanamo Bay, Cuba, and was seen as a test case for future prosecutions in federal court against other detainees, such as Khalid Shaiykh Mohammed and four others charged by the military in the September 11, 2001 terror attacks.
Reconciling the jury's acquittal on counts of carrying out the attacks, U.S. District Judge Kaplan said in his opinion opined, "The jury was not persuaded that Ghailani (1) knew the target and (2) knew it when he took any actions that ultimately proved to have furthered the bombing." But the judge concluded, "abundant evidence" and al Qaeda's premium on secrecy in its operations supported the jury finding of Ghailani's "knowing and willing participation in the conspiracy."
Four al Qaeda recruits convicted in the first embassy bombings trial in 2001, including a pair who rode in the bomb trucks, are serving life sentences in the U.S. "supermax" prison in Florence, Colo.
Life sentences were more recently doled out on men convicted for the thwarted or failed plots to bomb the U.S. embassy in Canada; to blow up an airliner with a shoe bomb; to explode fuel tanks at JFK International Airport in New York; and to detonate a car bomb in Manhattan's Times Square.
"Florida Senators Look to Texas for Prison System Cuts"
The title of this post is the headline of this interesting local article, which also carries the (somewhat amusing) sub-headline of "But money-saving programs could be too costly in tight budget year." Here is how piece starts:
Florida legislators were treated to a tutorial Monday in criminal justice, Texas-style. Not so much the death penalty Texas-style justice, but the money-saving, cost-reducing style of the criminal justice system that conservative Texas has become known for since instituting reforms in 2007.
“Texas has a notorious reputation. It’s a tough-on-crime state,” Texas Rep. Jerry Madden, R-Plano, told a joint meeting of the Senate Criminal Justice Committee and Criminal and Civil Justice Appropriations Subcommittee.
But that tough reputation now includes drug and alcohol treatment programs, less stringent penalties for parole and probation violations, and improved mental health care. The reforms stemmed from a desire to save money by reducing the need for more prisons and the political necessity of not appearing soft on crime.
“If your choice is not to build, your choice is either to let them out or to stop them coming in. Politically, you’re not going to open the door and let them out. The only option I had at that stage was how do I slow them down,” Madden told the senators.
Florida senators are wary of losing their tough-on-crime bonafides, but also of finding money for programs that will take three or four years to see budget savings, when the Legislature is facing a $3.62 billion deficit. “We have no money, this year, it’s worse than ever. We have no money now to do preventative programs,” said Sen. Evelyn Lynn, R-Ormond Beach.
But Madden said some reforms -- like initiating progressive sanctions for technical violations of probation (like being late or missing a meeting with a probation officer), and providing incentives for probation offices to keep felons in "the system" instead of sending them back to prison for a technical violation -- can be done with little or no immediate cost.
The Florida Department of Corrections currently has a budget of $2.4 billion and a prison population of 102,000. Business groups and tax-hawk advocates were on hand to applaud the efforts of Texas and Madden. Florida TaxWatch released a study last month recommending the adoption of many of the Texas reforms, which could save the state up to $4 billion.