October 8, 2011
Connecticut prisoners expressing concerns over new prison porn ban
This lengthy new AP article, which is headlined "Connecticut prisoners express anger over porn ban," raises interesting issues at the intersection of prison policies and First Amendment freedoms. Here are the basics:
A group of prisoners has begun a letter-writing campaign to protest what they see as an unfair ban on pornography inside the state’s correctional institutions. The Department of Correction announced in July that it would be banning all material that contains "pictorial depictions of sexual activity or nudity" from the prisons beginning next summer.
The state says the ban is intended to improve the work environment for prison staffers, especially female staffers, who might be inadvertently exposed to pornography. "While it is not supposed to be displayed, it is still visible to staff, whether it be on the inside of a foot locker or underneath their bunks, so they are still exposed to it," said Correction Department spokesman Brian Garnett. "And secondarily, is the fact that this is contrary to our rehabilitative efforts, particularly when it comes to sex offenders."
The department has received about three dozen letters from inmates, many of them form letters, claiming the recently adopted ban violates the inmates’ First Amendment rights. Some of those letters also were sent to The Associated Press. They suggest either lifting the ban or providing inmates with alternatives such as "cable programming that offers and displays nudity, also sexual activity." The letters say the suggestions are being made to avoid litigation....
Bill Dunlap, a law professor at Quinnipiac University, said there is a constitutional argument to be made. But, he said the courts have generally sided with prison officials, as long as they can prove the ban has a legitimate goal other than to simply suppress material that some people might find objectionable — such as maintaining safety in the prisons, or keeping the material out of the hands of sex offenders....
Inmates were given a year to dispose of any pornography they might have, which will allow any current magazine subscriptions to run their course.... The total ban will take effect in July 2012. After that, material considered to be pornography will be taken as contraband and inmates found with it could face such punishments as a loss of commissary privileges, loss of phone or the loss of visits.
October 7, 2011
"A Judge’s Education, a Sentence at a Time"
The title of this post is the headline of this lengthy new article from the New York Times discussing part of former District Judge (and now Circuit Judge) Denny Chin's sentencing record. Judge Chin is best known, of course, for sentencing Bernie Madoff to the max, and this article is a must-read in part because it does not discuss the Madoff sentencing much at all. Here are just a few small excerpts from a nice piece that provides a number of interesting federal sentencing anecdotes:
Judge Chin, 57, who last year was elevated by President Obama to the United States Court of Appeals for the Second Circuit, in New York, after nearly 16 years on the trial bench, is best known for the 150-year sentence he gave Bernard L. Madoff, arguably the most prominent white-collar sentence in the history of American law....
But it has been largely anonymous defendants ... whose cases have influenced his thinking about how to balance punishment and rehabilitation, deterrence and compassion. “There’s no doubt that all of these cases shaped me,” Judge Chin said, “and shaped the way I think, and the way I respond to things.”
He took the bench in 1994 at age 40 with little experience in criminal law. He has since sentenced more than 1,100 defendants, including at least a dozen who received sentences of life or the equivalent, according to court statistics. He quickly learned, he said, that preparation was crucial and that he must not agonize over his decisions. One seasoned judge had advised: “Rule and roll.” Be decisive. Don’t second-guess yourself.
In a series of interviews conducted in person and through e-mail over the past year, Judge Chin discussed his most challenging sentencing decisions, cases that became essential parts of his education as a judge. The interviews were unusual; judges rarely agree to discuss cases, even closed ones, like these, outside court. The exchanges provided a revealing look at how one judge approached the task of sentencing, which he called “the hardest thing” about being on the bench.
“It is just not a natural or everyday thing to do,” Judge Chin explained, “to pass judgment on people, to send them to prison or not. I mean, there is so much at stake,” he added, “and there are so many different considerations that come into play.”...
Like most judges, Judge Chin faced defendants who promised to reform their ways. Some fulfilled that pledge; others let him down. He tried not to become jaded or cynical, he said, and retained hope that people who had made mistakes could turn their lives around.
“A good judge has to care,” he said. “He has to want to make the world better.” He also believed that rehabilitation, along with punishment, deterrence and healing victims, was a legitimate goal of sentencing. As he put it, “I don’t like to give up on people.”
Eighth Circuit panel unanimously affirms dismissal of challenges to Arkansas execution protocol
Earlier today, an Eighth Circuit panel handed down an opinion in Williams v. Hobbs, No. 10-1573 (8th Cir. Oct. 7, 2011) (available here), which rejects various claims by death row prisoners in Arkansas concerning the state's execution plans. Here is how the opinion starts:
Several Arkansas prisoners on death row challenged the state's Method of Execution Act (the Act) under 42 U.S.C. § 1983 arguing that it violates the ex post facto clause and their due process right to access the courts. The district court dismissed the prisoners' claims, finding that their arguments were merely speculative, that they had access to Arkansas's current execution protocol, and that they could submit a FOIA request to obtain information on future protocols. In this consolidated appeal the prisoners argue that the district court erred in dismissing their ex post facto clause and due process claims. Appellant Williams also appeals individually contending that the district court erred in denying his habeas petition as second or successive and by refusing to exercise supplemental jurisdiction over a state law claim. Appellant Jones and the prisoners that intervened in his suit appeal the denial of their motion to vacate the judgment. We affirm.
House Judiciary subcommittee to hold hearing on post-Booker realities next week
As detailed in this calender entry, next Wednesday morning (Oct. 12, 2011), the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee will be conduction a hearing to examine the post-Booker federal sentencing system. The hearing has been given this telling title: "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker."
Not yet listed are the scheduled witnesses for this hearing, but I assume that someone from the US Sentencing Commission (the Chair?) will be testifying. Usually these kinds of hearings include an invitation to some representative from the US Department of Justice, though that is less certain, especially given that the House Republicans get to run this show and they may want to spend much of their time beating up on DOJ.
Whomever ends up testifying, I am extremely pleased to see that the House is showing some interest in the current state and potential future of both the federal sentencing system and the USSC. On so many modern federal sentencing fronts — on issues ranging from mandatory minimums for drug and gun offenses, to crack/powder sentencing after the FSA, to fraud sentencing, to child porn sentencing (and restitution), to reasonableness review, to fast-track departures, to acquitted conduct and on and on — there is uncertainty not only as to whether justice is being served, but also as to just what the USSC is doing in response to all this uncertainty.
Though I doubt many members of the House Subcommittee share my perspectives on all federal sentencing issues issues, their eagerness to try to figure out what is really going on in the modern federal sentencing system merits praise and gets me excited. I eager to see what comes of this hearing, and will post more about it as more information becomes available.
October 6, 2011
"Feds target Calif. pot dispensaries for closure"
The title of this post is the headline of this new AP article, which get started this way:
Federal prosecutors have launched a crackdown on pot dispensaries in California, warning the stores that they must shut down in 45 days or face criminal charges and confiscation of their property even if they are operating legally under the state's 15-year-old medical marijuana law.
In an escalation of the ongoing conflict between the U.S. government and the nation's burgeoning medical marijuana industry, at least 16 pot shops or their landlords received letters this week stating they are violating federal drug laws, even though medical marijuana is legal in California. The state's four U.S. attorneys were scheduled Friday to announce a broader coordinated crackdown.
Their offices refused Thursday to confirm the closure orders. The Associated Press obtained copies of the letters that a prosecutor sent to at least 12 San Diego dispensaries. They state that federal law "takes precedence over state law and applies regardless of the particular uses for which a dispensary is selling and distributing marijuana."
Over at TalkLeft, Jeralyn in this post right takes Obama and AG Holder to task for this latest pot prohibition move in the wake of their prior comments on this issue.
Getting it just right on Governor Perry's full criminal justice record
I am pleased to see that NPR put together this piece discussing Texas Governor Rick Perry's record on criminal justice issues beyond the death penalty. Here are excerpts:
As the longest-serving governor of Texas, Rick Perry has overseen the application of the death penalty more than any other U.S. governor — 236 executions, and counting. While Perry is unquestionably a steadfast supporter of capital punishment, his overall record on criminal justice is more complicated than that....
There are criminal justice reformers in Texas who insist that Perry is anything but a hang-'em-high governor. "I think Rick Perry is really getting a bum rap if and when he's being portrayed as some sort of bloodthirsty tyrant that just likes to kill people," says Jeff Blackburn, chief legal counsel for the Innocence Project of Texas, which works to overturn wrongful convictions.
"What we're accustomed to, frankly, is the governor's office being the primary obstructer of reform and progress, and that has not been the case with Rick Perry," he says. "He's done some real good, and I think more good than any other governor we've had."...
Criminal justice advocates won't go so far as to call Perry a reformer, and indeed, the governor has done little to exercise clemency in death penalty cases in which there are clear procedural flaws.
But to judge him solely on the 236 executions on his watch is unfair, says Scott Henson, who writes the respected criminal justice blog Grits for Breakfast. "Capital punishment is a media fetish," he says. "It's not really something that stands out as a remarkable part of Rick Perry's criminal justice record."
This lengthy and effective post by Henson at Grits effectively captures the reality of the Perry criminal justice record, and here is a concluding excerpt:
IMO, Perry has latched onto the death-penalty issue so vehemently because it's virtually the only item in his portfolio that crosses partisan lines to grab independents and conservative Democrats (since the death penalty is widely supported across all those demographics). Indeed, polls show that even those who believe the state has already executed an innocent person still support the death penalty by roughly a 60-40 margin. From a purely Machiavellian political standpoint, there's simply no downside for politicians in Texas (or in the GOP primary) from being seen as an eager executioner.
Indeed, arguably death-penalty demagoguery has played an important strategic role in Texas' criminal justice reforms, diverting media focus from more workaday criminal justice issues to an area where pols can look "tuff," even as they enact more moderate or even progressive reforms in other areas. Perry has signed legislation diverting tens of thousands of criminals from prison, but because of the "most-ever executions" tag, it'd be impossible in the political arena to successfully label him "soft on crime."
All that said, ... [c]riminal justice reform has never been a Perry priority, but as support for reforms grew among Texas Republicans, quite a few good bills passed on his watch and with a few notable exceptions he usually signed them. Governors in Texas wield relatively little power save for vetoes and appointments, so not vetoing things gets him credit, in my book, but it doesn't mean he'd make criminal-justice reform any sort of priority if he were President. Indeed, I seriously doubt he would do so.
Rick Perry doesn't deserve demonization for his criminal-justice record; he's not the one-dimensional, execution-crazed nutjob that death-penalty abolitionists have portrayed. But... [t]olerating reform is different from championing it.
Some recent related posts:
- Might GOP start debating Texas crime and punishment with Rick Perry in the 2012 race?
- Rick Perry's death penalty record already a topic of press coverage inside the Beltway
- "Perry delivers on Texas death penalty"
- "Brother of exonerated prisoner praises Perry’s criminal justice record"
- Will tonight's Tea Party GOP Debate discuss costly government programs like the drug war and mass incarceration?
- Hoping (perhaps foolishly, yet again) latest GOP debate addresses crime and punishment
October 6, 2011 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (15) | TrackBack
In praise (I think) of Georgia's efforts to put prisoners to work on farms
The title of this post summarizes my (ambivalently) positive reaction to this notable and fascinating new Atlanta Journal-Constitution story, which is headlined "Georgia may use prisoners to fill farm labor gap." Here are the details:
State officials have set their sights on another potential pool of workers to help bridge Georgia’s severe farm labor gap: prisoners. The idea is to put nonviolent inmates -- who are spending the end of their prison terms at one of the state’s 13 transitional centers -- to work picking fruits and vegetables across Georgia.
This is at least the state’s second attempt to tackle the labor shortages since enacting a tough new immigration law many farmers blame for their problems. State officials started experimenting last summer by encouraging criminal probationers to work on the farms, but results are mixed.
State officials hope the nonviolent offenders would be motivated to learn new skills, earn money and eventually land steady jobs that would help them once they get out of prison. The prisoners would help fill open jobs in Georgia’s $68.8 billion agricultural industry, the state’s largest. And Farmers could become eligible for federal Work Opportunity tax credits by hiring the offenders once they finish their terms.
State Corrections Department officials confirmed the details of the latest plan Wednesday, calling it a joint effort between the agency, Gov. Nathan Deal and state agriculture and labor officials. They said the idea is still under development, and they have not set a start date.
The work would be voluntary for the prisoners. Pay would be set by farmers, though it would be at least minimum wage. Prisoners would pay for their transportation to and from the farms.... “Gov. Deal is interested in having an organized system to match a group that needs employment with employers who need labor,” Stephanie Mayfield, a spokeswoman for the governor, said. “It’s not a cure-all, but it allows two groups with fixable needs to help each other.”
A state survey of farmers released in June showed they had as many as 11,080 jobs open. On Tuesday, the agriculture industry released a separate report documenting $74.9 million in crop losses tied to farm labor shortages. Some farmers blame Georgia’s new immigration law, House Bill 87, that targets illegal immigrants and those who harbor them. They say the measure is scaring away the Hispanic migrant workers that farmers depend on, putting their crops at risk....
Charles Hall, executive director of the Georgia Fruit and Vegetable Growers Association, said putting prisoners to work on the farms “may be a partial solution.” “I don’t think we are opposed to it,” he said. “We just have got to see how well it will work.”
Deal, who signed HB 87 into law in May, reacted to the labor shortages by proposing putting probationers to work on the farms. Hall said some of the probationers who worked on two vegetable farms in Sumter and Colquitt counties during this summer’s pilot program quit because of the heat, long hours and physically taxing jobs they got.
Agriculture Commissioner Gary Black summarized more results from the pilot program Tuesday while testifying before a U.S. Senate Judiciary Committee’s Subcommittee on Immigration, Refugees and Boarder Security. One farmer who participated in that program found the probationers to be half as productive as his other workers, Black said in written testimony. Another farmer found only 15 to 20 reliable workers out of 104 probationers.
“There were some obvious challenges with using probation labor,” Black said, “and the two producers found that the probationers were unable to harvest at the same rate as the other workers. At the end of the day, both producers agreed that the program had potential to meet the niche needs for farmers desperate for workers.”
"Why isn’t Mr. Obama exercising his pardon power?"
The title of this post is a question that regular readers know I have been asking for years. It is also the headline of this Washington Post editorial, which includes these excerpts:
A report from the Justice Department’s Office of Inspector General rightly takes the Obama administration to task for moving at a snail’s pace to answer the pleas of thousands of inmates seeking clemency or pardon.
The report notes that significant delays occur at virtually every step of the pardon process... But the greatest share of the blame for the slow speed resides with the White House. Mr. Obama did not issue a single pardon for nearly the first two years of his presidency. Once Justice Department recommendations are forwarded to the White House, they languish an average of nine months before the president acts. The administration has recently made headway in reducing the backlog of cases — from 4,700 to 2,000 — but only because it denied thousands of petitions.
While more timely processing is needed, the real travesty involves the president’s miserly use of his pardon power. Pardon is often an inmate’s last best chance for justice. It is meant to correct wrongs left unaddressed by the courts or legislature, and should be used wisely but unsparingly to give a second chance to those who have been wrongly convicted or sentenced to disproportionately and unjustifiably long prison terms.
Mr. Obama has thus far extended mercy to a mere 17 individuals, most of whom committed relatively minor offenses decades ago....
Mr. Obama need only look to the thousands of Americans — many of them young, African American men — incarcerated for inexcusably lengthy periods because of draconian crack cocaine laws. Mr. Obama joined with a bipartisan coalition in Congress to reduce the penalties and make them more proportional to the crime. Some inmates may benefit from a U.S. Sentencing Commission decision this summer that allows judges to resentence inmates under new guidelines reflecting the penalty reductions. But many nonviolent offenders worthy of relief will be out of luck because they were sentenced to mandatory minimum prison terms. This is exactly the kind of situation that cries out for presidential intervention.
Some recent and older related posts:
- Updated numbers on President Obama's disgraceful clemency record
- "Obama's Mercy Dearth"
- Los Angeles Times calls out our "no-pardon president"
- "A no-pardon Justice Department"
- Fascinating report on backstory behind presidential pardon problems
- DOJ resisting efforts to disinfect the federal celemency process with some sunlight
- "Grandmother Will Mark President's Day By Petitioning Obama To Commute Her 27-Year Prison Sentence For Non-Violent Crime"
- Effective USA Today coverage of President Obama's clemency stinginess
- "Obama should exercise the pardon power"
- NYTimes op-ed assailing Obama's pathetic pardon practices
- DOJ audit of federal clemency process with sound and fury signifying nothing
Vera Institute produces special Federal Sentencing Reporter issue: “Sentencing Within Sentencing”
I am so very pleased and proud to announce that the October 2011 issue of the Federal Sentencing Reporter is now complete and available on line. This is a special issues that was put together by the amazing folks at the Vera Institute of Justice, and here is how Vera describes the contents:
The October issue of the journal Federal Sentencing Reporter (FSR) examines the theme of “Sentencing Within Sentencing” — punishments defendants face in addition to those meted out by judges upon conviction. As Alison Shames, associate director of Vera’s Center on Sentencing and Corrections, writes in the “Editor’s Observations” column, “People involved in the criminal justice system are, in fact, punished at multiple points.”
The special Vera-edited issue presents new articles and reprints by staff, alumni, and associates that address a broad range of collateral penalties, including pretrial detention due to inability to afford bail, solitary confinement, and court fees and fines. The articles reflect Vera’s work since its founding 50 years ago, with a focus on the U.S. criminal justice, juvenile justice, and immigration systems.
You can read Alison Shames’s column and an article by Vera cofounder Herbert Sturz free of charge online. Vera will publish related guest blog posts and additional articles from the new issue of FSR on the website in the coming weeks.
Read a blog post about this issue of FSR by Vera’s director, Michael Jacobson.
Effective commentary providing the back-story on California prison problems
The Los Angeles Times has this effective new commentary by columnist George Skelton, headlined "Prison overcrowding and underfunding lead to more local burdens; Transfer of prisoners to local lockups was inevitable because voters want stiff sentences but won't pay for them." Here are excerpts:
The boring, bureaucratic word "realignment" masks the truly dramatic change in locking up California criminals that Gov. Jerry Brown just pulled off.
"A lot of people say, 'Hey, what's new in Sacramento?'" Brown told a news conference last week. "Well, this is new. It's bold. It's difficult. And it will continuously change as we learn from experience. But we can't sit still and let the courts release 30,000 serious prisoners. We have to do something."
In truth, the change was inevitable. Either the state began to dump thousands of its lower-risk prisoners onto local custody or it would have been forced by federal courts to dump them on the streets....
Complainers — such as Mayor Antonio Villaraigosa — are being disingenuous, at best. Villaraigosa called a news conference Monday to denounce the state for not providing "a single dollar to help with the burden" of incarcerating and monitoring more criminals. "That is not alignment. That is political malpractice."
Not quite. The state is sending financial help to the counties, including $124 million to Los Angeles County. It's up to the cities to request a share. The mayor has privately told people that he won't "go begging" to county supervisors for money, according to one state official who requested anonymity because he was reporting a private conversation.
My favorite hyperbole, however, comes from Republican State Sen. Sharon Runner of the Antelope Valley: "Now is the time for Californians to get a dog, buy a gun and install an alarm system. The state of California is no longer going to protect you."
Let's be honest: The politicians and the voters simply could not continue their decades-long insistence on increasing criminal sentences and enlarging the prison population without raising the money to pay for more cells and guards....
Prisons originally designed for 80,000 inmates ballooned to 170,000. Thousands were stacked like cordwood in barracks, gyms and hallways, some triple-bunked. There was little room for exercise and rehab: education, job training and drug treatment. The recidivism rate rose to 70%, twice the national average.
Actually, it all started back when Brown was first governor in the 1970s. He signed a bill that switched California to determinate sentencing, mandating a fixed term for each crime. Before that, sentencing and release were more flexible, depending a lot on the inmate's behavior behind bars.
"Things didn't prove out the way we expected," then-Atty. Gen. Brown told me two years ago, when he was preparing to run for governor again. "If a prisoner knows he's going to spend a determined amount of time for a crime, it may create a deterrent. But then once in prison, there's no incentive to do work programs, to improve yourself, no incentive that you can get out earlier. That's bad. That's very bad… I think the whole prison system needs to be changed."...
When Brown was governor in 1978, the prison population was roughly 21,000. It accounted for less than 3% of state general fund spending. Currently, there are approximately 160,000 inmates — 140,000 within state prison walls; the rest incarcerated out of state, in camps or locally — and they're consuming more than 11% of the general fund, or almost $10 billion.
Costs have skyrocketed as politicians tried to outdo each other in stiffening sentences while voters cheered. "Three strikes" has been a particular money-burner. Meantime, polls showed that prison spending was the first thing voters wanted to cut and the last thing they were willing to pay more taxes for. A survey in May by the Public Policy Institute of California found that 70% of likely voters favored reducing funds for prisons. Only 18% supported raising taxes to maintain the lockups....
Former Gov. Arnold Schwarzenegger and the Legislature stumbled around on the issue for years. Finally, the U.S. Supreme Court in May ordered California to empty its prison cells of 30,000 inmates. With a court gun to their heads, Brown and Democratic legislators acted.
Their solution: Those who commit nonviolent, non-serious and non-sex-related crimes will be incarcerated in county jails instead of sent to state prisons. Such current inmates, when released by the state, will be supervised by county probation officials. Parole violators won't be sent to prison, they'll be jailed locally and for less time than previously. The hope is that there'll be more rehab opportunities locally than in the packed pens.
Recent related posts:
- "California given strict deadline to reduce prison population"
- California to "start releasing thousands of female inmates who have children"
- Examining California's new prison placement law (and its possible impact on the King of Pop's doc)
- Los Angeles' DA predicting "doom" and huge "spike in crime" with prisoner transfer
October 5, 2011
"Face the federal death penalty in Michigan? Let state's laws decide"
The title of this post is the headline of this commentary in the Detroit Free Press authored by Professor Michael Mannheimer. Here are excerpts:
The full U.S. Court of Appeals for the 6th Circuit is considering whether to review the federal death sentence imposed on Marvin Gabrion II in Michigan in 2002. Gabrion is purportedly eligible for the federal death penalty because he committed murder in a national forest. A three-judge panel recently threw out Gabrion's death sentence because the trial judge refused to allow the jury to consider the absence of capital punishment in Michigan as a mitigating factor.
Although the panel came to the correct result, it did not go far enough. Because Gabrion committed his crime within a state that does not authorize the death penalty, his federal death sentence violates the Eighth Amendment's ban on "cruel and unusual punishment."...
The federal Bill of Rights was adopted under the assumption that state law would provide the standard to give the bill's provisions meaning. This view demands that we take a state-centered and state-specific approach to the Bill of Rights. Indeed, the fiercest advocates of a federal Bill of Rights were those whom we would today call the "states' rights" crowd....
In its original incarnation, the doctrine of states' rights operated to provide an additional layer of protection between individuals and government by using state norms to determine the limits of federal power. And the key word of the cruel and unusual punishments clause -- "unusual" -- cries out for a comparison between the punishments prescribed by the new federal government and those meted out by the states, which, by 1791, had extensive experience in administering criminal justice in North America, some for nearly two centuries....
There is good reason to think that Marvin Gabrion II should be executed. But there is also good reason to reject capital punishment wholesale. Ultimately, the question is not one of crime and punishment, but of who decides. The cruel and unusual punishments clause leaves in the hands of the people of Michigan the question whether men such as Gabrion should live or die.
Recent related posts:
- "Cruel and Unusual Federal Punishments"
- Split Sixth Circuit reverses federal death sentence on interesting grounds
- "The Racial Geography of the Federal Death Penalty"
Justice Scalia complains to Senate about too many federal drug prosecutions
Though I am embellishing a bit with the title I picked for this post, this AP story about Justice Scalia's testimony to Congress today reveals that I am not the only Blakely fan who thinks the federal war on drugs has negative collateral consequences. The Ap story is headlined "Scalia: Judges 'ain't what they used to be'," and it begins this way:
Supreme Court Justice Antonin Scalia says the quality of federal judges has suffered because there are too many of them. Testifying before a Senate committee Wednesday, Scalia blamed Congress for making federal crimes out of too many routine drug cases. In turn, that created a need for more judges.
"Federal judges ain't what they used to be," he said during a rare appearance before the Senate Judiciary Committee. The federal judiciary should be an elite group, said Scalia, who has served on the high court for 25 years. "It's not as elite as it used to be," he said.
He was responding to a question about what he sees as the greatest threat to the independence of judges.
What are criminal justice and drug war views of Herman Cain, the new GOP front-runner?
I am intrigued that the GOP field now seems to have a new front-runner in Herman Cain, and this development now has me wondering about Cain's perspective on criminal justice issues and especially the big-federal-government "war on drugs."
I cannot find anything about any criminal justice issues on Cain's website. A quick internet search likewise turned up little; this Think Progress posting links to a video clip in which Cain says that states should be in charge of gun control, but only after he said he was a strong supporter of Second Amendment rights.
I am curious about Cain's criminal justice views in part because, unlike the career politicians who make up most of the rest GOP field, he has no record on this front and probably has not even given much thought to these matters. Also, the undeniable realities of racial skews in the populations most impacted by and most concerned by federal and state criminal justice policies — on issues ranging from crack sentencing to felon disenfranchisement to the death penalty — has me wondering about Cain's perspective on these hot-button matters of crime and punishment.
October 5, 2011 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2) | TrackBack
One of these things is not like the others: Heller, Graham, Kennedy and Booker
The title of this post is inspired by an interesting footnote in the interesting dissent by Judge Kavanaugh in the interesting DC Circuit Second Amendment ruling yesterday (first blogged here). As readers of any TV generation should know, I am making reference to a classic Sesame Street segment (if you want hum along, go here or here) as a way to set up this interesting insight and discussion from Judge Kavanaugh in footnote 3 near the start of his lengthy dissent:
Heller was similar in its overarching practical and real-world ramifications to recent Supreme Court decisions such as Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729 (2011); Graham v. Florida, 130 S. Ct. 2011 (2010); Kennedy v. Louisiana, 554 U.S. 407 (2008); and Romer v. Evans, 517 U.S. 620 (1996). Those decisions disapproved novel or uncommon state legislative efforts to regulate beyond traditional boundaries in areas that affected enumerated individual constitutional rights — California’s law banning sale of violent video games, Florida’s law permitting life without parole for certain juvenile crimes, Louisiana’s law permitting the death penalty for certain rapes, and Colorado’s law prohibiting gay people from receiving protection from discrimination. Because those laws were outliers, the decisions invalidating them did not cause major repercussions throughout the Nation. Heller was a decision in that same vein, in terms of its immediate practical effects in the United States. By contrast, of course, some Supreme Court decisions interpreting the Constitution’s individual rights provisions not only are significant jurisprudentially but also have substantial practical impacts on common federal or state practices. See, e.g., Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009); Arizona v. Gant, 556 U.S. 332 (2009); United States v. Booker, 543 U.S. 220 (2005). Heller was not a decision of that kind.
As a descriptive matter, Judge Kavanaugh is spot on in noting that many of the most high-profile modern SCOTUS constitutional rulings involved invalidation of a "novel or uncommon" and "outlier" piece of state legislation, while a few others upset more common criminal justice practices. (Thus, the first answer to the Sesame Street question posed above is Booker, which Judge Kavanaugh rights asserts was more disruptive of traditional and common practices than Heller or Graham or Kennedy.) Critically, though, Judge Kavanaugh goes on to develop a jurisdictional approach to the Second Amendment based in the idea that the novelty or outlier status of any gun regulation makes it constitutionally suspect. I am tempted to call this a Sesame Street approach to the Second Amendment: if a particular jurisdiction's gun regulation is not like a lot of others, then it is (presumptively?) unconstitutional.
Of course, it make plenty of textual sense to assert that a novel or uncommon punishment is constitutionally suspect given the Eighth Amendment's prohibition on "cruel and unusual punishments." But it is hard to see just where and how a presumption against novel gun regulation finds expression in the text of the Second Amendment's prohibition on infringements of the right to keep and bear arms. Moreover, there is a competing constitutional tradition (based in federalism and the decentralization of power) to praise and protect efforts by individual states to try a unique approach to regulation in order to foster a laboratory for legislative innovation.
That all said, I find myself somewhat drawn to this Sesame Street approach to the Second Amendment, in large part because of its super-majoritarian quality and practical convenience. However, I suspect others may see more virtues than vices in Judge Kavanaugh's jurisprudential approach. Gosh knows this approach has proved controversial in the Eighth Amendment context, and there is has considerably more textual support than in the Second Amendment setting.
Interesting battle over guidelines and "gain" in Rajaratnam pre-sentencing hearing
This new New York Law Journal piece, headlined "Financial Gain Hotly Disputed in Galleon Presentence Hearing," provides a great review of some pre-sentencing sparring taking place in the run-up to a high-profile white-collar sentencing schedued for next week. Here are some excerpts:
Prosecutors and defense lawyers were miles apart yesterday as they argued how much financial gain should be attributed to Raj Rajaratnam when Southern District Judge Richard Holwell sends him to prison in the Galleon Group hedge fund scandal.
Special Assistant U.S. Attorney Andrew Z. Michaelson told Judge Holwell that Mr. Rajaratnam was guilty of "serial insider trading" that produced illicit gains of $72 million. That number, if accepted by the judge along with sentencing enhancements for taking a leadership role and obstructing justice, would mean a guidelines sentencing range of 19½ to 24½ years in prison.
But defense lawyer Terence J. Lynam of Akin Gump Strauss Hauer & Feld, one of a half dozen attorneys from Akin Gump who sat with Mr. Rajaratnam, said the government's number vastly exaggerated the alleged profits made by Mr. Rajaratnam and failed to acknowledge the movements in stock prices that were due to market forces or other events....
Yesterday, Mr. Rajaratnam, 54, watched impassively with Akin Gump's John M. Dowd by his side as Mr. Lynam argued against the government's math and the leadership-role enhancement, and co-counsel Samidh Guha argued Mr. Rajaratnam should not be penalized further for allegedly obstructing a probe into insider trading by the Securities and Exchange Commission.
Assistant U.S. Attorney Reed M. Brodsky, who prosecuted the case along with Mr. Michaelson and Jonathan M. Streeter, argued for both enhancements as he called Mr. Rajaratnam "by far and away the clear leader in organizing" a series of "interlocking conspiracies," in which he learned about earnings announcements and corporate transactions and then made millions from the stolen information....
But the bulk of the argument yesterday focused on the amount of the gain, as Mr. Michaelson told the judge that roughly $30 million of the $72 million in gains were racked up through trading ahead of mergers and acquisitions, and another $30 million trading ahead of earnings announcements for entities such as Google and Goldman Sachs. About $10 million came in the form of trading to avoid losses and the remainder came from trades the defense argues cannot be attributed to Mr. Rajaratnam.
Mr. Michaelson was challenged by Mr. Lynam on whether the government's method of calculating gains "sweeps up" other factors affecting stock prices. Mr. Lynam argued that the government should be forced to "back out" the other factors affecting pricing, but Mr. Michaelson said there were no "significant intervening" events that drove the stocks at issue either higher or lower after Mr. Rajaratnam had already placed his bets and the announcement of a merger earnings was made....
Mr. Rajaratnam's defense team is also seeking a break from Judge Holwell because of their client's poor health, but they have yet to publicly reveal his condition and documents relating to the issue remain under seal.
"Pretrial Incentives, Post-Conviction Review, and Sorting Criminal Prosecutions by Guilt or Innocence"
The title of this post is the title of this provocative new paper by Professor Samuel Gross, which is now available via SSRN. Here is the abstract:
A criminal defendant in the United States faces a stark choice: accept the conviction and punishment the prosecutor offers as a plea bargain, or go to trial and risk much worse. In most cases the defendant has an overwhelming incentive to plead guilty; that’s why very few criminal cases go to trial. Unfortunately that incentive is similar for defendants who are in fact guilty and for those who are not. As a result, some innocent defendants plead guilty. We know it happens — some innocent defendants who plead guilty are later proven innocent and exonerated — but we have no idea how often.
In this article I consider an alternative structure. We could offer defendants a different sort of pretrial option: not to plead guilty in return for reduced punishment, but to waive major procedural rights at trial in return for important procedural advantages on post-conviction review if they are convicted. In theory, this pretrial choice should be sufficiently more attractive to innocent defendants than to guilty ones that it will separate the two groups more effectively than our current practice. Along the way, if this option became regular practice, it might also reduce our reliance on plea bargaining, regain some lost ground for criminal trials, and improve the accuracy of fact finding in criminal cases.
Is this plan is practical? Is there a chance that it might be adopted somewhere? I wonder. I offer it as a thought experiment: an attempt to think through an alternative procedural universe in order to better understand the one we live in — which might lead to something useful.
October 4, 2011
Examining California's new prison placement law (and its possible impact on the King of Pop's doc)
I have not been closely following the on-going trial of Conrad Murray, the doctor charged with being criminally responsible for causing Michael Jackson's premature demise. I am intrigued and pleased to discover, however, that this new AP story finds a way to link that trial and Murray's potential sentencing to the new laws in California enacted in part to help the state comply with the Plata SCOTUS ruling concerning the state's overcrowded prisons. Here is how the lengthy new AP piece starts:
Gov. Jerry Brown and others who supported the dramatic shift in California's sentencing law that took effect this week have said it will send only those convicted of nonviolent or non-serious crimes to county jails instead of state prison, a change designed to save the state money and reduce inmate crowding.
Yet a review by The Associated Press of crimes that qualify for local sentences shows at least two dozen offenses shifting to local control that can be considered serious or violent. Among them: Involuntary manslaughter, vehicular manslaughter while intoxicated, killing or injuring a police officer while resisting arrest, participating in a lynching, possession of weapons of mass destruction, possessing explosives, threatening a witness or juror, and using arson or explosives to terrorize a health facility or church. Assault, battery, statutory rape and sexual exploitation by doctors or psychotherapists are also covered by the prison realignment law and carry sentences that will be served in a county jail instead of state prison.
"These crimes include a variety of offenses that would strike many civilians as far from trivial," Public Policy Institute of California researcher Dean Misczynski wrote in a recent analysis of the new law [available at this link]. A list of 500 criminal code sections to be covered by the law was compiled by the California District Attorneys Association and posted late last month to its website [at this link]. In response to a request by the AP, the state attorney general's office confirmed the association's review was accurate but said defendants with a previous felony conviction or those charged with enhancements would still be sent to state prison.
Among those who could be affected by the new law if convicted is Dr. Conrad Murray, who is on trial for involuntary manslaughter in the death of Michael Jackson. Legal experts said he would serve his maximum four-year sentence in a Los Angeles County jail instead of state prison.
The length of sentences won't necessarily change, but the realignment law does offer significant differences for inmates. Parole will disappear for offenders who serve their terms in county jails, including Murray, if he is convicted. Offenders who serve their full sentences behind bars will not be supervised once they are released. Parole officers will not be tracking their movements or making sure they comply with conditions such as substance abuse treatment.
Judges also have the discretion to impose "hybrid" or "split sentences" in which offenders serve part of their sentence in county jail and the rest on what is being called "mandatory supervision," overseen by probation officers.
Offenders convicted of more significant crimes still are likely to get lengthier sentences, even if they are served in jail instead of prison, said Scott Thorpe, chief executive officer of the state district attorneys association. But sentencing more serious offenders to jail rather than state prison will likely force counties that already have crowded jails to release less serious offenders who are serving time for crimes such as auto theft, burglary, grand theft, forgery, counterfeiting and drug crimes.
Los Angeles County District Attorney Steve Cooley is among those complaining that counties will be forced to release lower-level offenders by the thousands before they have served their full terms.
Next murderer scheduled for execution in Georgia gets stay for DNA testing
As detailed in this new Reuters article, a state judge in Georgia today "issued a stay of execution for a convicted killer whose attorneys seek a new trial and additional DNA testing." Here is more:
Marcus Ray Johnson, 46, was scheduled to be put to death by lethal injection on Wednesday for the rape and murder of Angela Sizemore in Albany, Georgia in March 1994.
But Dougherty County Superior Court Chief Judge W.E. Lockette delayed the execution and set a hearing for February to determine the merits of Johnson's request for more DNA testing. Johnson's attorneys say the evidence that should be tested includes blood, saliva, hair, clothing and fingernail clippings.
Prosecutors said in court filings that Johnson's contentions had already been rejected by state and federal courts. The state said, at best, the DNA test results would prove Johnson was still guilty as a party to the crimes.
New ACS issue brief on "right to counsel" cases this SCOTUS term
Via e-mail, I got this alert from the fols at ACS about this new Issue Brief:
The ‘Right-to-Counsel Term’: The Supreme Court has agreed to hear several cases this term that have the potential to “shape the Sixth Amendment right to counsel and related claims in such a way that recognizes the realities of our 21st century criminal justice system,” write The Constitution Project's Mary Schmid Mergler and Christopher Durocher in their ACS Issue Brief. In a comprehensive preview of the cases, the authors explain how plea negotiations, post-conviction proceedings, and other aspects of the modern criminal justice process have fallen through the right-to-counsel cracks.
Eleventh Circuit now to review en banc FSA pipeline sentencing issue
Regular readers may recall this post and this post from this past summer discussing the important Eleventh Circuit panel ruling in US v. Rojas declaring that the reduced statutory crack sentencing terms of the Fair Sentencing Act apply "to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter." Today, the Eleventh Circuit released this new order in Rojas indicating that this issue is now going to be examined by the full Eleventh Circuit en banc.
I am disappointed (but not all that surprised) that the full Eleventh Circuit does not have better things to do than to re-review the application of the FSA's new, more fair mandatory minimum terms to a few more federal defendants. After all, since the Rojas ruling, both the Attorney General (as detailed here) and the Third Circuit (in Dixon discussed here) have concluded that the Rojas panel got the law right.
Moreover, and more importantly, the Rojas panel ruling does not require that district judges give lower sentences to the most aggravated crack offenses, rather it simply allows district judges to consider lower sentences for the most mitigated crack offenses. But, apparently a majority of judges on the Eleventh Circuit are so fearful of even giving a few more federal defendants even the chance to argue at sentencing for the lower sentences that Congress has now deemed more fair that they have to turn this into a big en banc battle. (I wonder how much in federal tax dollars are going to be wasted on the federal criminal justice debate over this narrow issue of when exactly crack sentencing is supposed to become fair as Congress has commanded. Yeesh.)
Some prior posts on this FSA pipeline issue:
- Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?
- Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases
- Adding my two cents concerning application of the FSA to pending cases
- A few more thoughts on applying the FSA to not-yet-sentenced defendants
- New USDC opinion applying new FSA law to not-yet-sentenced defendants
- WSJ notes dispute over application of FSA to pending cases
- A (partial) account of deep split over application of FSA's new statutory terms to pipeline cases
- Seventh Circuit rejects FSA's application to defendants sentenced after it changed crack statutes
- Dissenting from denial of en banc review, Judge Williams makes strongest case for applying FSA to pipeline cases
- First Circuit affirms Douglas, holding lower FSA crack minimums apply in pipeline cases
- Eleventh Circuit panel rules FSA's lower crack terms apply to defendants sentenced after enactment
- Only a year late, AG Holder sees light and reverses course on FSA pipeline sentencing issue
- A (justifiably) sharp reaction to AG Holder's new position on FSA crack pipeline cases
- Third Circuit (joining First and Eleventh Circuits) applies FSA lower mandatory minimum terms to pipeline cases