January 25, 2011
Some news and notes from the medical marijuana world
I have not be following the news and debates surrounding pot policy since the defeat of legalization proposition in California back in November. Still, as evidenced by these recent headlines and stories, medical marijuana debates and practices still are raising lots of interesting policy issues:
From the Denver Post here, "Medical-marijuana dispensaries' effect on crime unclear"
From the Nevada Appeal here, "Board reviews medical marijuana abuse by parolees"
From the OCRegister here, "Conference markets medical marijuana to seniors"
From the Washington Post here, "Montel Williams seeks medical marijuana bill in Md"
States figuring out that helping ex-cons find jobs can be a budget boon
This New York Times piece, headlined "States Help Ex-Inmates Find Jobs," spotlights another benefit of states trying to get smarter on crime in the face of budget crunches. Here is how the piece begins:
Faced with yawning budget gaps and high unemployment, California, Michigan, New York and several other states are attacking both problems with a surprising strategy: helping ex-convicts find jobs to keep them from ending up back in prison.
The approach is backed by prisoner advocates as well as liberal and conservative government officials, who say it pays off in cold, hard numbers. Michigan, for example, spends $35,000 a year to keep someone in prison — more than the cost of educating a University of Michigan student. Through vigorous job placement programs and prudent use of parole, state officials say they have cut the prison population by 7,500, or about 15 percent, over the last four years, yielding more than $200 million in annual savings. Michigan spends $56 million a year on various re-entry programs, including substance abuse treatment and job training.
“We had a $2 billion prison budget, and if you look at the costs saved by not having the system the size it was, we save a lot of money,” said Patricia Caruso, who was Michigan’s corrections commissioner from 2003 through 2010. “If we spend some of that $2 billion on something else — like re-entry programs — and that results in success, that’s a better approach.”
All told, the 50 states and the federal government spend $69 billion a year to house two million prisoners, prompting many budget cutters to see billions in potential savings by trimming the prison population. Each year, more than 600,000 inmates are released nationwide, but studies show that two-thirds are re-arrested within three years.
“An exorbitant amount of money is dedicated to incarcerating people,” said Nancy La Vigne, director of the Justice Policy Center at the Urban Institute. “There are ways you can go about reducing the number of people incarcerated. The best way to help them successfully integrate into society and become independent, law-abiding citizens is to make sure they get a job.”
Pushed by faith-based organizations and helped by federal stimulus money, California, Michigan, New York and other states expanded jobs programs in recent years to give prisoners a second chance and to reduce recidivism. The nation’s overall jobless rate is 9.4 percent, but various studies have found unemployment rates of 50 percent or higher for former prisoners nine months or a year after their release.
Many states remain enthusiastic about the re-entry programs, but in a few states facing deficits, like Kansas, officials are cutting them back, partly because of the curtailment of federal stimulus dollars that helped finance them.
January 24, 2011
Illinois judge calls Governor Pat Quinn "grossly irresponsible" for dithering on death penalty
A state judge in Illinois has called out Governor Pat Quinn for having dithered so long concerning the bill to repeal the death penalty passed by the Illinois legislature nearly two weeks ago. This local story provides the interesting details:
A DuPage County judge said it’s “grossly irresponsible” for Gov. Pat Quinn to stay silent on whether he’ll sign legislation that would abolish the state’s death penalty. Circuit Judge John Kinsella made a plea from the bench Monday for Quinn to end the uncertainty over Illinois’ death penalty. “He’s got to tell us if he’s going to sign the bill and make it law,” Kinsella said.
The judge’s remarks came as he set a May 3 trial date for an Addison man accused of killing his mother and a prostitute five years ago. Gary Schuning, 28, may face the death penalty if he is convicted of the Feb. 26, 2006, double-stabbing. Schuning’s attorney said he would be better prepared for trial if it were known that the bill recently passed by the Illinois General Assembly would abolish the death penalty as of July 1....
Kinsella said it would help prosecutors and defense attorneys across Illinois to know Quinn’s decision about capital punishment. “He needs to state his position one way or another,” said Kinsella, adding several times that he considered the governor’s silence to be “irresponsible.”
Quinn spokeswoman Annie Thompson disagreed. The governor is in the process of reaching out to individuals on both sides of the issue “to try to gather as much information as possible” to make an informed decision. “Given the importance and significance of this legislation and what this law would mean for Illinois, we think it would be irresponsible not to be reviewing it before acting on it,” Thompson said.
Quinn has until March 18 to sign or veto the legislation. If he doesn’t act by that date, the legislation becomes law. While Quinn hasn’t said when he will make a decision, Thompson said it will happen before the deadline.
Because state law apparently contemplate giving the Illinois Governor over two months to make a veto decision here, I am not sure it is "grossly irresponsible" for Quinn to have not announced his decision in only two weeks. That said, it is hard to think that either the basic policy issues or the politics surrounding this decision are likely to change in any significant way over the next few weeks. Thus, for reasons suggested by the judge, I do think Quinn ought to indicate what he plans to do as soon as possible.
Some recent related posts:
- Illinois state prosecutors lobbying to preserve state's death penalty
- Illinois house in close vote approves death penalty ban
- Possible death penalty repeal in Illinois now in hand of Governor Pat Quinn
- Illinois Gov. Pat Quinn not yet telling (and perhaps not yet sure?) whether he will sign death penalty repeal
- Is there growing momentum behind death penalty repeal efforts?
- "Illinois death penalty decision leaves uncertainty"
President Obama nominates Donald Verrilli for Solicitor General position
As detailed in this post from The BLT, "President Barack Obama has tapped White House Deputy Counsel Donald Verrilli Jr. to serve as Solicitor General of the United States." Here is more about the nomination and an account for why Acting SG Neal Katyal may not be getting the nod:
If confirmed by the Senate, Verrilli would fill the position now held by acting Solicitor General Neal Katyal, who stepped into the job when Solicitor General Elena Kagan was nominated to the Supreme Court.
Verrilli was the former co-chair of the Supreme Court and Appellate practice group in the Washington office of Jenner & Block from 2000 until he joined the Obama Department of Justice in 2009 as an associate deputy attorney general. While at the Justice Department, Verrilli focused on domestic and national security policy issues.
Verrilli is a veteran Supreme Court advocate. He has argued 12 cases before the justices and participated in more than 100. His cases have ranged from the intricacies of intellectual property, such as his defense of music industry copyrights in 2005, to the complexities of the death penalty, such as his pro bono work in Wiggins v. Smith....
A former clerk to Justice William Brennan Jr., Verrilli is a graduate of Columbia Law School....
Since the confirmation of Kagan, there has been considerable speculation within the Supreme Court bar community about her replacement. Katyal’s chances, some said, were dimmer than others because his Supreme Court representation of alleged terrorist Salim Hamdan could create controversy during a confirmation hearing. Katyal, who handled that case while he was on the faculty of Georgetown University Law Center, won his high court case — a major defeat for the Bush Administration and military tribunals.
Sixth Circuit rejects constitutional attacks on 10-year mandatory minimum for kiddie cruising
The first two paragraphs of today's Sixth Circuit decision in US v. Hughes, No. 09-5787 (6th Cir. Jan. 24, 2011) (available here), tells a story that is as depressing as it may be common. In reverse order, here are these paragraphs:
On July 7, 8, 13, and 24, 2008, [Nathan] Hughes exchanged online communications with someone he thought was a 14-year-old girl. In reality, his online companion was not a child, but rather an undercover detective. In their last exchange, Hughes proposed meeting at a local park in Louisville, Kentucky for the purpose of engaging in sexual intercourse and/or oral sex. When Hughes arrived at the park, officers recognized him from online photos and the description of his vehicle. He was arrested by the Louisville Metro Police Crimes Against Children Unit, and indicted on the charge of attempting to persuade, induce, or entice a 14-year-old girl to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). The statute carries a mandatory minimum sentence of ten years of imprisonment. 18 U.S.C. § 2422(b).
Nathan Hughes was sentenced to prison for the mandatory minimum term of ten years after pleading guilty to attempting to entice a minor to engage in a criminal sexual act, in violation of 18 U.S.C. § 2422(b). On appeal, Hughes argues that his mandatory minimum sentence violates the Eighth Amendment because it is grossly disproportionate to his crime, and that it violates the Fifth Amendment’s due process and equal protection guarantees because similarly situated defendants charged under 18 U.S.C. § 2423(b) are not subject to a mandatory minimum. Because these arguments are without merit, we affirm the district court’s sentence.
Notably, the Hughes opinion does not discuss how old the defendant is or whether he presents a threat to society beyond his misguided interest in hooking up with underage girls. Based on the nature of his constitutional claims (and the panel's decision to issue a published opinion), I suspect the defendant in this case is relatively sympathetic but for his illegal interest in "jailbait" and his stupid decision to pursue this interest.
But the Sixth Circuit is on solid ground when it rules that existing constitutional jurisprudence presents no barriers to Congress's decision to "reward" stupid losers like Nathan Hughes with a minimum of a decade in the federal pen. What I worry about, however, is whether stupid losers like Nathan Hughes may end up a bigger threat to society after he serves this mandatory minimum prison term. If there was good reason to believe that this 10-year mandatory minimum generally deters this kind of on-line kiddie cruising, I would not worry too much about the fate and future of Nathan Hughes. But I have yet to see any firm data on this important front.
UPDATE: Kudos to all commentors on a really interesting dialogue in the comments to this post.
Lots of interesting prison and prisoner law activity by SCOTUS today
The Supreme Court Justices have started a month break from oral argument this week. But, on their way out of town, the Court gave prison jurisprudence fans a going away gift. Specifically, the Justices via a summary reversal in Swartout v. Cooke (available here) told the Ninth Circuit that it must not be reviewing the substance of parole decisions in California. Here is a key snippet from the per curiam ruling:
The liberty interest at issue here is the interest in receiving parole when the California standards for parole have been met, and the minimum procedures adequate for due-process protection of that interest are those set forth in Greenholtz....
Because the only federal right at issue is procedural, the relevant inquiry is what process Cooke and Clay received, not whether the state court decided the case correctly. The Ninth Circuit’s questionable finding that there was no evidence in the record supporting the parole denials is irrelevant unless there is a federal right at stake, as §2254(a) requires. See id., at 67. The short of the matter is that the responsibility for assuring that the constitutionally adequate procedures governing California’s parole system are properly applied rests with California courts, and is no part of the Ninth Circuit’s business.
In addition, though technically a civil case with its real impact on civil lawyers, the Justices also handed down an opinion today in Ortiz v. Jordan (available here), which concerns "a procedural issue arising in a civil rights action brought under 42 U.S.C. §1983 by Michelle Ortiz, a former inmate at the Ohio Reformatory for Women."
And, not to be overlooked, the Court granted cert in two cases involving prison and post-prison criminal procedural concerns. The issues in these two new SCOTUS cases are well explained in this new SCOTUSblog post:
The Supreme Court agreed on Monday to clarify when prison or jail officials must give an inmate warnings about his rights under Miranda v. Arizona, any time they take the prisoner out of a cell for questioning about another crime. The issue arises in a Michigan child sex abuse case, Howes v. Fields (10-680). The Court’s ruling on the case — expected in its next Term — will clarify the scope of the Court’s ruling in 1968 in Mathis v. U.S. That was one of two cases granted review before the Justices began a four-week recess.
In the second granted case, the Court will decide whether an individual convicted of violating a 2006 federal sex offender law has a right to go to court to challenge the U.S. Attorney General’s decision to apply that law to those who were convicted of sex crimes before the law’s enactment. That issue is posed in Reynolds v. U.S. (10-6549). The Court declined to review issues raised in the petition about the constitutionality of the federal law.
Should Justice Scalia urge Congress members to work on Booker and ACCA fixes at the inaugural Conservative Constitutional Seminar?
As detailed in this New York Times piece, "United States Supreme Court Justice Antonin Scalia is scheduled to speak Monday on Capitol Hill in a closed-door session with a group of conservative lawmakers that has drawn scrutiny for its ideological tone." The piece properly notes that it "is not unusual for Supreme Court justices and members of Congress to mingle," and I generally think it is beneficial, not sinister, for judges and justices to speak to legislators about constitutional history and principles.
While various pundits and politicos are complaining about Justice Scalia's willingness to accept an invitation to speak from the Tea Party Caucus, I am hopeful that the Justice will use this opportunity to get legislators to pay more attention to problematic parts of the federal sentencing system. Justice Scalia has long been a vocal constitutional critic of many parts of the the federal sentencing system (from Mistretta to Almendarez-Torres to Booker), and I hope he helps members of Congress better appreciate jury trial rights and the importance of a constitutionally sound federal sentencing structure. (It would also be great if he would at least briefly channel Justice Alito to explain to federal legislators why the Armed Career Criminal Act is in desparate need of a rewrite.)
January 23, 2011
Tough discussions in California about how to handle serious juve offenders
This piece via the New York Times, which is headlined "Whither Young Offenders? The Debate Has Begun," spotlights the challenging discussions in California concerning what to do with a distinct set of challenging offenders. Here is an excerpt:
Gov. Jerry Brown’s recent proposal to eliminate California’s Division of Juvenile Justice was billed as a way to cut $242 million from the state budget. It was also the culmination of a decade-long effort to shut the state’s troubled youth prison system, which for years has been plagued by violence, abuse and decaying facilities.
Much of that effort has been centered in the Bay Area after accusations of abuse and neglect at the institutions surfaced in a 2003 Alameda County lawsuit. In recent years, some local judges often refused to send young offenders to state institutions, preferring to confine them in county facilities regarded as safer and more effective.
Mr. Brown’s initiative would take that unofficial policy further. It would scrap the state juvenile justice system and shift responsibility for confining the most violent young offenders to the local level, where they are nearer to family and have more community treatment options. The move would affect the 1,300 youths in state care, down from 10,000 in 1996.
Even among critics of the Division of Juvenile Justice, the proposed shift has set off a new debate over whether counties are equipped to handle an influx of severely troubled young people. “I’m disgusted with myself to think of defending D.J.J. with all the things that have happened over the years,” said Sue Burrell, a lawyer at the Youth Law Center in San Francisco, “but if you ask me right now, I would opt for keeping a very, very small D.J.J. open and not throwing the kids to the wolves.”
Ms. Burrell said she was concerned that prosecutors might see counties as unfit to handle serious offenders and thus try many juveniles as adults, forcing teenagers into adult prisons.
Barry Krisberg, a senior fellow at the University of California, Berkeley, School of Law, said that keeping young offenders at the county level might offer them fewer rehabilitation options. “I would bet that those kids would end up in juvenile hall, in isolation, getting fewer services,” Mr. Krisberg said. “I don’t think we can shut down the entire state system.”
But Dan Macallair, executive director of the Center on Juvenile and Criminal Justice, a nonprofit group in San Francisco, said he believed young offenders could receive better support at the local level. “In county juvenile halls, you don’t have the entrenched gang culture and violence you have at the state youth authority,” Mr. Macallair said. “The counties can offer a continuum of options — maximum security, minimum security, intensive services in the community — that the state could never come close to matching.”
Mr. Macallair, who has called the state institutions “relics of the 19th century,” agreed that the proposed state closings presented challenges, but he said too much hand-wringing would keep resources at the state level and prevent needed changes. “The state system is not set up for major change,” he said. “If the money won’t be flowing to counties, counties won’t get any better, and you’ll be left with the status quo.”
"President Obama: Why no clemency for Hamedah Hasan?"
The question in the title of this post is from the headline of this commentary from the Washington Times. Here are excerpts:
More than two years into his term, President Obama has granted only nine pardon requests and no petitions for clemency, despite extremely strong candidates for the Presidential action....
Commuting a sentence is rare. The public views a pardon, re-establishing rights such as voting after serving a sentence, as more palatable than granting commutation, because the individual has served out his sentence. Commuting a sentence sometimes is seen as unjustly letting a criminal out of jail and overriding the judicial system....
One stand-out in the more than 3,000 requests for Presidential commutation is Hamedah Hasan, a mother and grandmother serving her 17th year of a 27 year federal prison sentence for non-violent crack cocaine conviction. She has no prior criminal record.
In 1991, Ms. Hasan was arrested for conspiracy to distribute crack cocaine, after three other known drug traffickers implicated her as the “manager” of the conspiracy to sell 5.9 kilograms of crack cocaine. They received lighter sentences for their cooperation with authorities. Police never found any drugs on Ms. Hasan, nor did they find any drugs in her house. Despite repeated steak-outs, they did not observe her selling, using, or possessing drugs of any kind.
Mandatory federal sentencing guidelines put Ms. Hasan in jail for life. The requirements at the time included a 100:1 ratio for crack cocaine to regular cocaine. In other words, if you had one gram of crack, your punishment was equal to having 100 grams of cocaine. Changes in the Sentencing Guidelines later reduced her sentence to 27 years.
Ms. Hasan has applied for Presidential commutation of her sentence, and has received an outpouring of support. The ACLU now represents Ms. Hasan due to the strength of her argument. The application included more than 50 letters of support from community leaders, prison chaplains, advocates, friends and family. One letter is from the federal judge who sentenced Ms. Hasan, the Honorable Richard G. Kopf, U.S. District of Nebraska....
The petition includes additional objective information supporting commutation. For example, If Ms. Hasan had been convicted of the same crime for the powder form of the drug, she would have already completed her sentence. Of her 17 years in jail, she has an outstanding behavior and work performance record for 16 years. So far, no one has publicly opposed Ms. Hasan’s release. Ms. Hasan’s commutation petition materials are available here: www.dearmrpresidentyesyoucan.org
Further justification for Ms. Hasan’s petition comes from the Obama administration itself, which has stated that the crack sentencing guidelines are too harsh. Shortly after taking office, President Obama published his “Blueprint for Change,” in which he stated, “...the disparity between sentencing crack and powder-based cocaine is wrong and should be completely eliminated." Moreover, last year, President Obama signed the Fair Sentencing Act, in an effort to change those laws. Although political bargaining made it impossible to eliminate the disparity completely, the new law did reduce the disparity from 100:1 to 18:1. It did not, however, apply to individuals already sentenced under previous crack guidelines.
Despite the strong rational for Presidential clemency, Ms. Hasan remains in jail. The only person who can rectify the wrong is President Obama.... President Obama, please do your best. Grant clemency to Ms. Hasan and the others who deserve it. No one else can.