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October 22, 2011

Clemency policy and practice as symbol of failed Obama presidency

Regular readers know I have long been critical of modern presidential failings in the use of the constitutional clemency authority.  Though I understand why President Bush and now President Obama have been disinclined to make real use of their clemency powers following Bill Clinton's out-the-door pardon debacles, prior abuse and misuse of a constitutional power by a former president does not justify disuse of that power altogether.  Moreover, as I have stressed in prior posts, it strikes me as not merely misguided but truly very bad politics for modern Presidents to fail to showcase leadership and their core values by essentially ignoring the many thousands of persons seeking better justice or merited mercy through their clemency requests.

Regular readers likely recall that during the early months of the Obama presidency, I was regularly urging the president to give symbolic expression to his campaign themes of hope and change via his clemency powers:  President Obama could have showed he meant what he said on the campaign trail simply by changing one crazy-long federal prison sentence and thereby showing the hope in a former offender's ability to become a productive law-abiding citizen.

The main point in making this provocative point is that, by placing short-term (and short-sighted) political calculations ahead of demonstrating actual leadership and core values in the exercise of his historic clemency power, President Obama through his clemency (lack of) action instead demonstrates that he apparently lacks the core convictions and political courage which I had hoped could and would enable him to be an increadibly successful President.

October 22, 2011 in Clemency and Pardons | Permalink | Comments (5) | TrackBack

Is everyone relatively happy with justice when serial killer dies relatively quickly serving LWOP?

The provocative (but also truly genuine) question I have put in the title of this post is prompted by this story in my local Columbus Dispatch.  The piece is headlined "Killer Dillon, who hunted outdoorsmen, is dead; Dillon, who was serving 5 life terms for 5 murders, dies after brief illness," and here are excerpts:

Ohio serial killer Thomas Lee Dillon has gone to his death.  Dillon, who stalked the woods of eastern Ohio and shot five outdoorsmen to death between 1989 and 1992, died yesterday, state prison officials said.

Former Franklin County Prosecutor Mike Miller, who served as special prosecutor in Dillon’s case, does not mourn the murderer.  “He killed purely for the pleasure of killing. He wanted the thrill. He was an evil man,” Miller said.  “I can’t say I have any sadness about him departing this Earth.”

Dillon, 61, died in the prison wing at the Ohio State University Medical Center in Columbus at 7:55 a.m. yesterday after an unspecified illness of nearly three weeks.  He was serving five consecutive life terms, with no possibility of parole for 165 years, after pleading guilty in 1993 to five counts of aggravated murder....

Dillon, from Magnolia in Stark County, drove the rural back roads with a high- powered rifle in his search for victims and also claimed to have set 160 fires during his journeys. His victims were: Donald Welling, 35 ...; Jamie Paxton, 21 ...; Kevin Loring, 30 ...; Claude Hawkins, 48 ...; Gary Bradley, 44 ....

Miller became involved in the case when the prosecutors in the four counties couldn’t agree how to handle the case and turned to him as a compromise.  The case was moving toward trial when Dillon and his lawyers offered a guilty plea if the death penalty was taken off the table. Miller accepted after the families of the victims agreed.

Miller’s most-chilling memory of Dillon came when the defendant was being questioned about fatally shooting a man who had very long hair.  Dillon was asked if he had considered the possibility that his victim could have been a woman.  “He said, “What do you think? I couldn’t care less.  It wouldn’t have made a difference to me,’” Miller said.

I presume that persons categorically opposed to the death penalty are happy that this serial killer got life sentences rather than a death sentence and, in turn, that Dillon died a "natural" death rather than being killed by the state.  The post-conviction sentencing, life and death that Dillon experienced is what, I would guess, all abolitionists view as the best and most just state response to mass murder.

Meanwhile, though avid proponents of capital punishment may be troubled that a death sentence was not delivered by the state here, they should be relatively happy that Dillon is dead now "only" 18 years after his convictions given that most Ohio murderers sentenced to death serve two decades or more on death row before facing execution.  Moreover, the very presence of the death penalty in Ohio help get this mass murderer an LWOP sentence (and with the apparent blessing of the victims' families).

Further, for those (like me) agnostic about both the cosmic justice and the cost/benefit profile of modern American capital punishment, this case seems to have probably achieved the most benefits at the least costs once Dillon was captured.  The life sentences were imposed here apparently with little court costs and apparently without victims' families being forced to suffer extra agonies.  Moreover, as recent high-profile trials in Connecticut and a recent federal death sentence reversal starkly highlight, even when guilt is not in doubt, there can be huge litigation costs and appellate uncertainty even when the state pursues a death sentence even for a mass murderer who would seem obviously deserving of a death sentence. 

October 22, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

New Huff Post pieces on presidential pot policy and politics

The Huffington Post has run these two notable recent piece on presidential policy and politics concerning marijuana.  Here are links and the leads of these pieces:

"Obama Must Explain His Broken Promise on Medical Marijuana, and Soon"

This week's news that support for the legalization of marijuana has reached a record high of 50% ought to bother Obama's re-election team a little bit.  No, not because pot's more popular than the president, although that really says a lot.  The problem, rather, is that Obama's heavily publicized and widely praised promise to respect state medical marijuana laws has recently been shattered into more pieces than the campaign can count.

In only a few short months, the Obama administration has presided over a vicious series of political assaults on medical marijuana patients and providers across the nation, carried out by numerous federal agencies.  The situation just continues to get more ugly and insane from one week to the next.

"What Republican Presidential Candidates Say About Legalizing Marijuana"

Fifty percent of Americans favor legalizing marijuana, according to a recently released Gallup poll. That number, up from just 36 percent in 2006, marks a record high and could have significant implications for candidates on the campaign trail, advocates say.

Republican presidential candidate Gary Johnson has already come out in favor of legalizing marijuana, announcing on Wednesday that he would even consider issuing a full presidential pardon for anyone serving a prison sentence for a nonviolent marijuana crime.  Such pardons are part of what he envisions as a broader "rational drug policy."

"Pot smokers may be the largest untapped voting bloc in the country," he said in an interview with Outside Magazine.  "A hundred million Americans have smoked marijuana. You think they want to be considered criminals?"

Though Johnson has been excluded from recent GOP debates and polls show he garners less than 1 percent of the national vote, recent surveys suggest that, if current trends persist, legalization of marijuana could indeed become a hot-button topic by election 2016.

As regular readers know, I am eager to see legalization of marijuana becoming a hot-button topic in election 2012.  I am very pleased to hear that candidate Gary Johnson is going bold on this issue, and a quick stop at this page on his official website suggests he is willing to go bold on this issue.  I may have to start doing a series of posts on Johnson's policy prescriptions because they deserve a lot more media attention than they have been getting so far.

October 22, 2011 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Notable report on notable comments by Justice Breyer on the death penalty

This local report by Laura Goldman on a recent speech by a sitting SCOTUS Justice, which is headlined "Justice Breyer Riffs On The Death Penalty, Citizens United, Bush v Gore," provides this account of some notable comments concerning the death penalty:

Last week, I had a chance to hear Supreme Court Justice Stephen Breyer speak at the World Affairs Council of Philadelphia. Breyer came to discuss his most recent book, "Making Our Democracy Work: A Judge's View....

The easygoing, affable Breyer only became defensive when the subject of the death penalty was raised.  "You have to understand that each death penalty case usually comes before the court three times.  The average defendant is on death row for 15 years," said Breyer.

He continued, "The recanting of witnesses is often raised.  That is not enough.  It is necessary to have proof that someone else has had to pull the trigger.  There would have to be something really wrong for the Supreme Court to hear anything significantly new that was not heard before by the lower courts.  We are presented with roughly the same arguments, just at the last minute."

Breyer explained that the court can not rule on the death penalty itself or address the racial disparity of its imposition since "it is mostly imposed by state law, rarely federal law.  Only the legislature can abolish the death penalty," said Breyer.

Citing the example of French President Mitterand, Breyer utilized his bully pulpit to urge the executive and legislative branches to abolish the death penalty in America.  "Europe is against the death penalty now," he said.  "In 1980, 2/3 of the French electorate supported the death penalty.  Still Mitterand, in a television interview, came out against the death penalty.  He immediately went up in the polls because he took a position of conscience. The same thing could happen here."

He doubts that abolition of the death penalty will happen.  "Politicians were in the popular club in high school.  They hold their finger up to the wind to measure popularity," opined Breyer.  "Judges are terrible politicians."

October 22, 2011 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

October 21, 2011

"Rajaratnam's kidney transplant could cost taxpayers $300,000"

The title of this post is the headline of this new CNNMoney story.  Here are the details:

Taxpayers could be bankrolling a kidney transplant for wealthy white-collar convict Raj Rajaratnam, who was recently sentenced to 11 years in federal prison for insider trading. The cost could exceed $300,000 if he's able to secure a kidney early in his sentence, including the price of the transplant and a decade's worth of post-operative therapy.

At Rajaratnam's sentencing on Oct. 13 in New York, federal Judge Richard Holwell described the former hedge fund manager as a diabetic with "imminent kidney failure" who needs a transplant. The judge also said he will ask the Federal Bureau of Prisons to place Rajaratnam in the Butner Federal Correctional Complex in North Carolina, which has a medical facility.  Incidentally, Butner is home to Ponzi schemer Bernard Madoff, who is serving a 150-year sentence.

All federal prisons have some level of medical care, according to Federal Bureau of Prisons spokesman Edmond Ross, but some prisons specialize in it.  Butner is one of six federal prisons that are considered medical centers, meaning that their mission is to deliver more enhanced medical care than what would normally be expected from a prison hospital.

Rajaratnam will probably get sent to Federal Medical Center Devens in Massachusetts, not Butner, because Devens specializes in kidney treatment, including dialysis, according to Ross....   But none of the hospitals in the prison system conduct transplants, said Ross. That work would be outsourced to a non-prison hospital....

[The costs all] fall on the taxpayers. Not that the former hedge fund manager and Galleon Group founder has a choice. Rajaratnam does not have the option of paying for his own treatment once his sentence begins on Nov. 28.

"No, he cannot pay for it himself," said Alan Ellis, an attorney, prison consultant and author of the Federal Prison Guidebook.  "No way. There's no such thing as rich man's medicine versus poor man's medicine in the Bureau of Prisons."

Ross would not say how much the bureau specifically spends on health care, but the U.S. Government Accountability Office estimates that the cost is growing, in tandem with the aging prison population.   "I don't know what the 2012 health care costs are going to be, but it wouldn't surprise me if it's approaching a billion dollars," said David Maurer, director of the Homeland Security and Justice Team of the GAO, which analyzes the federal prison budget.

October 21, 2011 in Prisons and prisoners, White-collar sentencing | Permalink | Comments (20) | TrackBack

Senate Republicans block Jim Webb's bill for creating National Criminal Justice Commission

As reported in this interesting piece from Politico, Republicans in the Senate yesterday got vocal and blocked Senator Jim Webb's bill proposing the creation of "National Criminal Justice Commission."  Here are the details:

Invoking “states rights” and the Constitution, Senate Republicans Thursday torpedoed an ambitious plan to create a national blue ribbon bipartisan commission to do a top-to-bottom review of the U.S. criminal justice system and report back potential reforms in 18 months.

The 57-43 roll call -- three short of the 60 supermajority needed -- dramatized again how politically divided the chamber has become.   Almost identical legislation cleared the House in the last Congress on a simple voice vote with Republican backing and had been approved with bipartisan support in the Senate Judiciary Committee last year as well.

Given endorsements from the American Bar Association and many police and sheriffs organizations, proponents had hoped to clear the 60 vote supermajority required in the Senate.  But under a barrage of last-minute attacks, Republican support wilted. And the chief sponsor, Sen. Jim Webb (D-Va.), found himself deserted by even his long time associate and fellow Vietnam veteran, Sen. John McCain (R-Ariz.)....

Republicans argued that the White House would have too much influence, effectively creating a 9-7 majority for the administration.  But Webb said the specific language that one set of commission seats be chosen “in agreement” with the White House had been the exact phrasing chosen by the GOP.  And Republicans are specifically promised control over one of the two co-chairs.

Sen. Kay Bailey Hutchison (R-Texas) took the lead in the GOP’s attacks, describing the commission as “an overreach of gigantic proportions” and “not a priority in these tight budget times.”

“We’re absolutely ignoring the U.S. Constitution if you do this,” said Sen. Tom Coburn (R-Okla.) in closing. “We have no role unless we’re violating human rights or the U.S. Constitution to involve ourselves in the criminal court system or penal system in my state or any other state…I would urge a no vote against this and honor our Constitution.”

The scene was in sharp contrast with events before the 2010 mid-term elections.  In July that same year, nearly identical legislation sailed through the House with the backing of Hutchison’s fellow Texan, Rep. Lamar Smith -- now chairman of the House Judiciary Committee.  Support was so strong that the bill was called up under expedited proceedings and passed without any member even demanding a recorded vote.

By contrast, just four Senate Republicans backed Webb Thursday: Sens. Lindsey Graham of South Carolina, Orrin Hatch of Utah, Olympia Snowe of Maine and Scott Brown of Massachusetts....

Individual Republican senators said they had come under pressure from local district attorneys and judges in drug courts to oppose Webb.  But the Democrat countered that he had strong support from the drug court judiciary and the model for his proposal was the influential presidential commission on crime and the judicial system in the mid 1960’s led by then-Attorney General Nicholas Katzenbach.

Webb said that 40 years later it is reasonable to have a second review, especially given the high incarceration rate in the U.S. at a time or relatively low crime rates. “Our criminal justice system is broken in many areas,” he told the Senate in his own floor comments. “We need a national commission to look at the criminal justice system from point of apprehension through reentry into society of people who have been incarcerated.”

October 21, 2011 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (21) | TrackBack

Interesting sex offender parole story (and parole data) from Kentucky

Folks like me who spend (too) much time obsessing about the federal sentencing system can (too) readily forget that parole remains an important part of many state sentencing systems.  And this local article, headlined "Laurel Co. sex offender paroled after serving 12 years of 100-year sentence," provides an interesting tale of parole (and some state parole from Kentucky.  Here are excerpts:

A Laurel County sex offender was paroled from prison earlier this month after serving less than 13 years of a 100-year sentence. Anthony L. Carroll, 53, was eligible for parole under the law that was in place when he committed the crimes in the early 1990s.

Still, the state Parole Board didn't have to let him out of prison, said Commonwealth's Attorney Jackie Steele, whose office opposed the parole.   Steele said a jury essentially said Carroll should spend the rest of his life in prison and noted the children involved have to live with what Carroll did to them the rest of their lives.

"For him to walk out in 12 years is an insult to the victims and the Commonwealth of Kentucky," said Steele, the felony prosecutor for Laurel and Knox counties. "There's no justice in that."  The mother of the boy Carroll was convicted of molesting said she thinks Carroll had somehow "gotten some strings pulled" to get released.  "It was something that was just crazy. How could this happen?" the woman said....

Verman Winburn, chairman of the board, said in a statement there was no outside influence or pressure to parole Carroll.  "The board took into consideration the fact that he has made changes in his life and taken responsibility for his crimes," Winburn said.

He said Carroll had completed sex-offender treatment, will receive aftercare treatment, and will be supervised for the rest of his life. Carroll must register as a sex offender.   "Our hope is that he will live a law-abiding life," Winburn said.

There has been a trend toward paroling more people as officials have looked for ways to cut prison costs.  In the 2005-06 fiscal year, 43 percent of eligible inmates were paroled, while 37 percent were deferred for later consideration, according to figures supplied by the Justice and Public Safety Cabinet.  In the 2010-11 fiscal year, 54 percent of eligible inmates were paroled, and the deferment figure had dropped to 28 percent.   In the rest of the cases, inmates were ordered to serve out their sentence.

Jennifer Brislin, spokeswoman for the state Justice and Public Safety Cabinet, said there has been a renewed focus on efforts such as substance-abuse programs and tailored parole supervision aimed at helping parolees stay out of trouble.   The Parole Board, which is independent of the Cabinet, also has better tools to assess who to parole, she said.  Parole decisions are made with public safety in mind, Brislin said.   She said state figures show the percentage of inmates paroled who commit a new crime within two or three years has gone down since 2007.

Carroll was convicted in 1999 of five counts of sodomizing a young boy.  The abuse had taken place in the early 1990s, but the boy didn't come forward until years later, after his half-sister told their mother about abuse by Carroll, their mother said.  Carroll was tried for molesting the boy, who testified in graphic detail, said Danny Evans, who prosecuted the case.

A judge followed the jury's wishes and sentenced Carroll to 100 years in prison.  There were indications the girl had been molested, as well, but Carroll was not tried for any alleged abuse of her, her mother said.  That was because officials felt it was not necessary to put the girl through the ordeal of testifying, given the 100-year sentence Carroll faced, the mother said.

Under the law in place at the time of his crimes, a person convicted of committing a violent crime had to serve half the sentence, or 12 years — whichever was less — before becoming eligible for parole. V iolent offenders must now serve at least 85 percent of their sentence.

October 21, 2011 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Noting the impact of life sentences on efforts to cut prison costs

USA Today has this little piece, headlined "Growing prison populations hinder budget cuts," which details how the massive increase in offenders serving life sentences in recent years adds an extra challenge for those states now eager to reduce prison populations and associated costs.  Here are excerpts:

The rising number of prisoners serving costly life terms across the country is complicating state officials' efforts to make dramatic cuts to large prison budgets, lawmakers and criminal justice officials said.

From 1984 to 2008, the number of offenders serving life terms quadrupled, from 34,000 to roughly 140,000, according to the most recent count by The Sentencing Project, which advocates alternatives to incarceration.  

One of the fastest-growing subgroups are inmates serving life without the possibility of parole.  Those numbers have jumped from 12,453 in 1992 to 41,095 in 2008 and represent the most costly inmates to house as the aging inmates require increased medical care....

In Texas, the second-largest state prison system in the country, with 156,000 inmates, the number of offenders serving life without parole has been increasing since the sentence was adopted by the state Legislature in 2005, from 47 in 2007 to 391 this year.  The number of Texas prisoners serving life with the possibility of parole — 8,665 — has increased in four of the past five years....

In California, the country's largest prison system with 164,000 inmates, the number of prisoners serving life terms has been steadily increasing, even as the state faces a federal court mandate to reduce the prison population by 30,000 by 2013.  More than 20% of the state's inmates are serving life terms or equivalent sentences.

Joseph Cassilly, a past president of the National District Attorneys Association, said there is concern that increasing budget pressures on state governments could drive officials to consider paroles for lifers in an attempt to reduce costs.   "How do you explain that to a victim of a crime or a surviving family member who thought life in prison really meant life in prison?" Cassilly said.

October 21, 2011 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

"Balanced Justice: Cost-Benefit Analysis and Criminal Justice Policy"


The title of this post is the title of this notable new research paper from NYU's Institute for Policy Integrity, which urges policymakers to apply more economic analysis and cost/benefit research to criminal justice policy. Here is how the report is described via this webpage

Crime and justice are not usually associated with cost-benefit analysis. But they should be, according to new research. This is especially true in an economic downturn, when government funding is scarce. In “Balanced Justice,” released jointly with the Center for the Administration of Criminal Law, author Jennifer Rosenberg reviews a growing body of research showing that counting the costs and benefits of our nation’s justice system can highlight areas of improvement that can save billions of taxpayer dollars without compromising public safety.

Instead of incarceration, behavioral therapy for young offenders is saving Washington State money and keeping citizens safer.  In Hawaii, intensive supervision is keeping parolees out of expensive penitentiaries and keeping cash in state coffers.  And all over the country, drug courts have proven cost-effective alternatives to standard prison sentences, lowering recidivism rates and earning taxpayers sizeable returns on investment.

These results show how powerful the use of economic analysis can be when applied to criminal justice policy.  Many of these initiatives cost less than incarceration and future benefits can dwarf the administrative costs of implementing new criminal justice programs.

Over at The Atlantic, Andrew Cohen has this effective follow-up commentary on this new report, which concludes with these insightful points:

It's been 23 years now since George H.W. Bush used the infamous "Willie Horton" campaign advertisement to portray Michael Dukakis as "soft on crime."  It's been nearly twice that long since the so-called "silent majority" took back the streets.  Violent crime is down.  But generations of Americans have come and gone accepting the shibboleth that the easiest answer about criminal justice -- lock 'em up and throw away the key -- is the best answer about criminal justice.

The price we have paid for this lazy calculus is dear: our prisons now are teeming with inmates, the highest population in the world, and many of our states can no longer afford to adequately house them.  Of course, many criminals deserve to be there.  But many do not.  For years there has been a strong economic case for legalizing (and taxing) marijuana.  And now, more broadly, there is a stronger economic case for keeping more criminals out of prison.

The NYU study represents a smart new way of looking at an old problem; an economic evaluation that strips away some of the emotion (and demagogeury) that surrounds any discussion of crime and justice.  It's easier to be "tough on crime" when you can pay the price, right?  But now we can't.  And the collective poverty within our criminal justice systems isn't going to ease on its own.  So bring in the economists! And let the stale, old law-and-order crowd step aside.

October 21, 2011 in Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

October 20, 2011

Alabama poised to complete record-fast(?) execution for child killer

As detailed in this Reuters article, Alabama has an execution scheduled for tonight that is notable in part because it is taking place "only" six years after the murder for which the punishment was imposed.  Here are the details:

An Alabama man who has spent just four years on death row for the suffocation and beating death of his infant son is set to die by lethal injection on Thursday.  The execution of Christopher Thomas Johnson, 39, is scheduled for 6 p.m. local time at the Holman Correctional Facility in Atmore.

Johnson made the rare move of pleading guilty to capital murder in the 2005 death of his 6-month-old son Elias Ocean Johnson.  The inmate requested the death penalty, which was granted in February 2007, and waived all appellate and intervention measures on his behalf.

One law professor said Johnson's brief stay on death row is unusual and could possibly be among the shortest on record nationwide.  Donald Q. Cochran, a former prosecutor and a professor at Samford University's Cumberland School of Law in Birmingham, said the only other case he could recall following such an abrupt timeline was that of confessed Oklahoma City bomber Timothy McVeigh.  McVeigh was executed in 2001, six years after committing his crime.

According to the Death Penalty Information Center, the average time an inmate spends on death row awaiting execution is 14 years, with many waiting longer than 20 years.   Johnson would be the sixth inmate executed in Alabama this year and the 38th put to death nationwide in 2011.

Johnson represented himself at trial.  He testified he killed his son because "he hated his wife, didn't want to be near her and didn't want to worry about her threats of putting him in jail for alimony or child support," according to documents filed by the state Attorney General's Office.  Johnson offered no mitigating circumstances for his crime, and the trial court found the "the heinous, atrocious and cruel" nature of the murder outweighed any justifications that could have been offered, records show....

The forensic pathologist who performed Elias' autopsy testified during the trial that the infant suffered at least 85 separate injuries.  Suffocation and head trauma were cited as the causes of death.

In a statement issued by Project Hope to Abolish the Death Penalty, executive director Esther Brown said even though the organization respects Johnson's right to have the death penalty imposed, they questioned his motives. "We are a prisoner organization and therefore respect a prisoner's wishes.  Nevertheless, we question Mr. Johnson's mental stability, which would allow him to make this kind of decision," Brown said.

Especially for anyone who hopes the death penalty may have a deterrent impact and who fears that capital delay may blunt that impact, it is telling and troubling that an execution taking place six years after the crime is still possibly a record-fast execution in the modern capital punishment era.

October 20, 2011 in Death Penalty Reforms | Permalink | Comments (76) | TrackBack

Federal death sentence tossed for serial killer due to juror's dishonesty

As detailed in this new AP article, which is headlined "Convicted killer Gary Sampson gets new trial," a notable federal death sentence for a notable murderer was overturned today for a notable reason.  Here are the basics:

A federal judge on Thursday threw out the death penalty against a man convicted of killing three people in Massachusetts and New Hampshire during a weeklong crime spree in 2001 and ordered a new trial.

Chief U.S. District Judge Mark Wolf ruled that Gary Sampson was denied his constitutional right to have his sentence decided by an impartial jury and that he is "entitled to a new trial to determine whether the death penalty is justified in his case."

Sampson, a drifter who was raised in Abington, pleaded guilty to carjacking two Massachusetts men after each picked him up hitchhiking.  He said he forced both men to drive to secluded spots, assured them he only wanted to steal their cars, then stabbed them repeatedly and slit their throats. He then fled to New Hampshire, broke into a house in Meredith and strangled a third man.

In a motion for a new trial, Sampson’s lawyers argued that three jurors had given inaccurate answers to questions they were asked during the jury selection process.  Wolf found that one of the jurors had intentionally and repeatedly answered questions dishonestly in an attempt to avoid talking about subjects that were painful to her.  She never disclosed, for example, that her husband had a rifle and had threatened to shoot her, that she had ended her marriage because of her husband’s substance abuse and that her daughter had served time in prison because of a drug problem.

Wolf said in his ruling that if the woman had disclosed those things during the jury selection process, the court would have found that there was a "high risk" that after listening to the evidence at Sampson’s trial, her decision on whether to sentence Sampson to death could have been influenced by her life experiences.  Wolf said the woman likely would have been excused from serving on the jury.

"In essence, despite dedicated efforts by the parties and the court to assure that the trial would be fair and the verdict final, it has now been proven that perjury by a juror resulted in a violation of Sampson’s constitutional right to have the issue of whether he should live or die decided by twelve women and men who were each capable of deciding that most consequential question impartially," Wolf wrote....

Former U.S. Attorney Michael Sullivan, who brought the case against Sampson, said he is disappointed that Sampson will get a new death penalty hearing.  "I feel horrible for the victims’ families," Sullivan said.

The ruling in US v. Sampson by Judge Wolf runs more than 100 pages and is available at this link.

October 20, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Rogue flight attendant gets probation after completing mental health program

ImagesCAA6Y6HEAccording to this new CNN report, which is headlined "Former JetBlue flight attendant sentenced to one year probation," a flight attendant who earned his 15 minutes of fame through a high-profile runway (or should I say runaway) crime has also now managed to avoid even 15 minutes of a prison term at sentencing.  Here are the details:

The former JetBlue flight attendant who soared to instant celebrity after deploying an emergency evacuation slide to dramatically exit an airplane in 2010 has been sentenced to a year of probation after completing a mental health treatment program.

In accordance with a plea deal reached in Queens Supreme Court in October 2010, Steven Slater withdrew his guilty plea on Wednesday to a felony charge of attempted second-degree criminal mischief and will serve a year of probation on a misdemeanor charge of attempted fourth-degree criminal mischief, according to a news release from the Queens County district attorney's office.

Slater, 39, must still pay $10,000 in restitution to JetBlue, the price of repairing or replacing the emergency evacuation chute. He made an initial payment of $500 and must continue to shell out $831.25 each month, the release said.

Slater faced up to four years in prison for the felony charge and up to six months in jail for the misdemeanor charge, the release said. Instead, he underwent a year of court-ordered treatment through the Queens Mental Health Court. "It's great to see that there is an alternate to hard time for cases that, in my mind, don't necessarily merit hard time," Slater told CNN. "This was a good alternative."

Slater called the past year "long" and "challenging." He said he spent much of it commuting to the New York treatment facility from Los Angeles, where took care of his ill mother, who died this year....

These days, Slater is spending his time completing a memoir about his years in the airline industry and the day that led to his rise to fame. "It was kind of a watershed moment," he said. "And now I know if I don't take care of myself, no one else will."

October 20, 2011 in Celebrity sentencings, Criminal Sentences Alternatives, Offense Characteristics | Permalink | Comments (2) | TrackBack

"Veterans Courts: Early Outcomes and Key Indicators for Success"

The title of this post is the title of this notable paper by Justin Holbrook and Sara Anderson, which is available on SSRN.  Here is the abstract:

The growing trend within the judicial, treatment, and advocacy communities toward specialized courts for military veterans raises important questions about the effectiveness of such courts in rehabilitating veterans.  Both principally and practically, veterans courts observers may take opposing positions regarding the appropriateness and effectiveness of placing veterans in a specialized, treatment-based court program simply because of their military service.  This chapter explores these challenging issues in two parts.

First, we undertake a discussion of first principle concerns related to veterans courts by reviewing research studies examining the link between veterans and criminal misconduct. The return of 1.6 million veterans from the wars in Iraq and Afghanistan has re-ignited the still unsettled controversy over whether veterans suffering from combat trauma are more likely than their non-veteran counterparts to commit criminal misconduct after returning home.  While firm conclusions may be difficult (and unpopular) to draw, the issue warrants attention in any serious discussion about the merits and best practices of veterans court programs.

Second, we present early findings from an assessment we conducted of the practices, procedures, and participant populations of certain veterans courts operating as of March 2011.  Of the 53 courts invited to participate, 14 provided a response by completing either an online or paper survey.  Of these, seven submitted sample policies and procedures, participant contracts, plea agreements, and mentor guidelines for our review. Drawing on these courts’ common practices and procedures, we identify key operational components courts should consider in implementing veterans court programs.  We also conclude that veterans court outcomes, at least at present, appear at least as favorable as those of other specialized treatment courts.

October 20, 2011 in Criminal Sentences Alternatives, Data on sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Soft-drink CEO gets 20 years of federal hard-time for $685 million fraud

As detailed in this local article, which is headlined "Podlucky sentenced to 20 years in prison," a corporate criminal was not so lucky today at his federal sentencing.  Here are the basics:

Having already shaved 35 years off his prison sentence through a plea agreement, a Ligonier businessman who masterminded a $685 million fraud didn't deserve any further leniency, a federal judge ruled today.

U.S. District Judge Alan Bloch sentenced Gregory Podlucky, 51, to 20 years in prison and five years of probation. Podlucky pleaded guilty in June to bank, wire and mail fraud for bilking investors and lending institutions out of about $856 million they thought he was investing in bottling company LeNature's Inc.

Bloch ruled that the loss was $685 million, but said he would set the amount of restitution that Podlucky owes at a later date after considering defense and government arguments for how much actual loss Podlucky's victims suffered.

A sobbing Podlucky asked the judge to reduce his sentence further. "I am nothing but a filthy rag," he told the judge. "The things that I did are abominable."  Podlucky said he has asked God for forgiveness and regrets his actions. "I feel so bad about what I did to the victims — the pain and suffering," he said.

Bloch said the federal sentencing guidelines recommended a sentence of 55 years and Podlucky's arguments for further leniency "have no merit whatsoever."

He specifically noted that Podlucky continued committing crimes, in the form of money laundering, while he was on pre-trial release for the fraud charges, and it was "frivolous" for Podlucky to argue that a "meticulously planned and executed fraud" that lasted for years represented aberrant behavior on his part.  "Breaking the law was a way of life for Podlucky for years," the judge said.

October 20, 2011 in Federal Sentencing Guidelines, Offense Characteristics, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (2) | TrackBack

Split Fifth Circuit deepens split over FSA's application to pipeline cases

I am not tickled to have to report than another circuit has now refused to allow the application of the Fair Sentencing Act's revised statutory sentencing minimums to defendants who committed crack offenses before the FSA became law, but were sentenced after it was signed by President Obama in August 2010.  The new ruling comes from the Fifth Circuit in US v. Tickles, No. No. 10-30852 (5th Cir. Oct. 19, 2011) (available here), and the per curiam majority opinion begins this way:

The court considered these cases jointly without oral argument because they raise a single issue: whether these defendants, who were convicted inter alia of possession with intent to distribute crack cocaine, were entitled to be sentenced according to the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111- 220, 124 Stat 2372, when their illegal conduct preceded the Act but their sentencing proceedings occurred post-enactment.  The issue is the retroactivity, or partial retroactivity, of the FSA, a statute intended by Congress to “restore fairness to Federal cocaine sentencing,” 124 Stat. at 2372, by reducing the previous 100:1 ratio between thresholds for sentences for crack and powder cocaine offenses. We are one among many circuit courts that have thoroughly vetted this issue, and we have little to add to the discussions of others.  As will be seen below, we side with those courts that have denied retroactive application.

The dissent by Judge Stewart ends this way:

The will of Congress, as expressed in the Fair Sentencing Act’s substance, preamble, and title, will be disregarded by the courts’ continued imposition of severe penalties which Congress has explicitly determined to be unfair.  Accordingly, I agree with a number of our sister circuits that the provisions of the Fair Sentencing Act apply to all federal cocaine offenders sentenced after the statute’s enactment, regardless of whether the underlying offense conduct occurred prior to the Act’s enactment.  See United States v. Douglas, 644 F.3d 39 (1st Cir. 2011); Rojas, 645 F.3d 1234 (11th Cir. 2011); United States v. Dixon, 648 F.3d 195 (3d Cir. 2011).

The majority opinion would continue to impose disproportionately harsh sentences of imprisonment on many crack cocaine offenders, despite Congress’s clear and obvious determination that such penalties are unfair. For this reason, I respectfully dissent.

October 20, 2011 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

"The Carceral State and the Crucible of Black Politics: An Urban History of the Rockefeller Drug Laws"

The title of this post is the title of this notable new paper by Michael Javen Fortner, which is now available via SSRN. Here is the abstract:

The expansion of the carceral state and the mass incarceration of African American males have been of great concern to academics and activists.  The dominant explanations for these outcomes emphasize white supremacy and the Republican law and order rhetoric that developed during the late 1960s.  This paper complicates this narrative: it examines the role that African-American activists played in the development of local and national drug policy.  

Tracing the discourse around crime and law enforcement within New York City’s African American community from 1950s until the 1970s, this papers finds that the “urban crisis” narrative did not develop in spite of black politics: it developed, in great measure, because of black politics.  The law and order rhetoric of the post-60s GOP might have been employed at the expense of racial minorities living in urban ghettos, but black politics played a preparatory role for this new Republican discourse.  This paper concludes that the carceral state and the mass incarceration of African American males is as much a result of black fears as it is a result of white racism.

October 20, 2011 in Drug Offense Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

October 19, 2011

VP Biden saying murders and rapes will increase without passage of job bill

This Fox News report, headlined "Biden Evokes Sexual, Violent Imagery Again in Push for $447 Jobs Bill," indicates that Vice President Joe Biden is saying some really dumb stuff in pushing for the Obama Administration's jobs bill.  Here is how the piece starts:

Vice President Biden is stepping up his argument that rapes and murders could increase if Congress does not pass President Obama’s $447 billion jobs bill -- evoking sexual and violent imagery in his sales pitch for the second time in a week.   Speaking to Philadelphia police officers Tuesday at the University of Pennsylvania,

Biden slammed Republican critics who say the jobs bill is just “temporary,” underscoring measures aimed at maintaining police force levels.  “Let me tell you, it’s not temporary when that 9-1-1 call comes in and a woman’s being raped.  If a cop shows up in time to prevent the rape, it’s not temporary to that woman,” Biden said with his voice rising. “It’s not temporary to the guy whose store is being held up and has a gun being pointed to his head if a cop shows up and he’s not killed. That’s not temporary to that store owner. Give me a break -- temporary.

“I wish these guys who thought it was temporary, I wish they had some notion what it’s like be on the other side of a gun or a 200-pound man standing over you telling you to submit,” he added.  “Folks, it matters. It matters.”

Last Wednesday, Biden suggested during a speech in Flint, Mich., that rapes and murders could rise if the jobs bill failed to pass Congress.

The Republican National Committee released a memo calling Biden’s comments “irresponsible and mean-spirited” and calling on the media and women’s groups to condemn the remarks.

“No victim of violent crime would ever wish that others were forced to experience the same trauma they went through -- especially to make a brazen political point. So why would the sitting vice president of the United States?”

“Our economy is hurting and the Obama administration’s policies have only prolonged the pain, but that is no excuse for Vice President Biden to wish his political opponents to be subjected to rape or have a gun held to their head,” the RNC said. “Victims of violent crime should never be used for political gain.”

Though I am not really a member of the media, I am still happy to rise to the call of the RNC:  I condemn these foolish remarks by the Vice President.  I am reminded here of when Ray Lewis said back in May that crime would go up if the NFL did not resolve its labor woes in time for the new football season.  And it is not a mark of greatness when remarks by the Vice President remind you of remarks by an NFL player.

October 19, 2011 in Who Sentences? | Permalink | Comments (10) | TrackBack

How much sentencing unfairness is resulting from Fair Sentencing Act pipeline disputes?

The question in the title of this post is prompted in part by this notable recent report by Michelle Olsen, which is headlined "Circuit Split Watch: Help Wanted for Crack Sentencing Appeals?" and which first appeared earlier this week in the National Law Journal’s Supreme Court Insider.  Here are background basics as set forth effectively in this piece:

Congress passed the Fair Sentencing Act of 2010 to reduce the vast and heavily criticized disparity between crack cocaine and powder cocaine sentences.  Implementing the FSA has not been easy, though, as federal appeals courts have split over when it applies.  Two of these cases could reach the Supreme Court soon as petitions for certiorari, and a third is already there.

In July, the 7th Circuit decided United States v. Holcomb, a consolidation of appeals involving four defendants.  Each committed crack offenses before the FSA became law, but were sentenced after, receiving lower FSA sentences. For one defendant, the difference was 33 months (within the FSA range) versus 120 months (pre-FSA mandatory minimum).

A three-judge 7th Circuit panel, citing prior circuit precedent, found that the FSA only applies to offenses committed after it became law and that the sentencing date is irrelevant.  As a result, the defendants would get the higher sentences.  This had been the federal government’s position.

About a week later, though, Attorney General Eric Holder issued a “Memorandum for All Federal Prosecutors” that rejected this approach.  Originally, prosecutors had been told that the FSA only applied to post-FSA offenses.  However, as Holder explained, confusion in the courts and “the serious impact on the criminal justice system of continuing to impose unfair penalties” had caused him to review and change the policy.  Going forward, the FSA would apply to post-FSA sentences, regardless of the offense date.

After the government notified the 7th Circuit of the policy change, the court denied rehearing en banc sua sponte. The vote was a tie, 5-5, leaving the earlier decision intact....  As both sides pointed out, there is a 3-2 split among the federal appellate courts on when to apply the FSA....

Because of the circuit split, and the practical implications for many defendants, the Supreme Court may decide to grant certiorari.  If so, the scenario will be different than most, since the winner in the 7th and 8th Circuits, the government, now disagrees with those decisions.  In such cases, the Court can appoint an attorney to defend the judgments below....

The government has not appealed its losses in the 1st, 3rd and 11th Circuits, but the latter is still pending.  On October 4, the 11th Circuit ordered rehearing en banc sua sponte.

Given that a key purpose of modern federal sentencing reform was to reduce nationwide sentencing disparities, any circuit split over any federal sentencing provision undermines a goal of modern reforms.  But the circuit split over application of the FSA here is especially significant and disconcerting because many hundreds of crack offenders are sentenced in federal courts every month AND because the only goal of the FSA was to finally make crack sentencings a little more fair nationwide. 

Congress perhaps deserves the most blame for this FSA application mess because it never specified an express effective date for the reduced mandatory minimum crack sentencing provisions in the FSA.  But I also want to blame the Justice Department for making a bad situation even worse.  As this article notes, AG Eric Holder and his Justice Department initially (and I think wrongly) decided that the FSA's application should be limited; then, a full year later, the AG decided (a day late and a few dollars short) that the government should advocate the FSA's application to pipeline cases.  As a matter of substance, I was pleased when DOJ finally read the FSA the way I think it should be read; as a matter of process, this AG flip-flop aggravated the confusion, uncertainty, disparity and unfairness that continues to fester in lower courts sentencing hundreds of crack defendants every month.

There is an additional reason I am grumpy about how the Justice Department is dealing with this FSA pipeline issue: to my knowledge, there has been no serious or significant effort by any Obama Administration officials to urge the Supreme Court to take up this issue ASAP.  These FSA pipeline concerns were lurking from the moment the House in July 2010 passed the FSA and sent it to the White House for signing by President Obama (as I noted in this post).  And the problematic split over application of the FSA in pipeline cases was already clear a year ago when the Douglas case (discussed here) became the first major district court ruling that the FSA should be applied to not-yet-sentence defendants.  Without an extra push from the feds, I fear SCOTUS may not get around to finally resolvingthis FSA pipeline issue until perhaps 2013, with more large and small sentencing unfairnesses likely taking place in lower courts each month along the way.  What a waste.

UPDATE AND CORRECTION: A helpful reader alerted me that earlier this month, the feds have asked SCOTUS to take up this issue through its response to a petition for cert from the defendant in a Seventh Circuit case. The discussion section of this filing (which can be downloaded below) begins this way: 

Petitioner contends (Pet. 7-17) that this Court’s intervention is necessary to resolve a conflict in the circuits about the applicability of the FSA’s revised statutory penalties to preenactment offenders.  The government agrees.  The court of appeals incorrectly concluded that defendants who committed their offenses before the FSA are still subject, in post-FSA sentencings, to heightened statutory penalties that Congress has repudiated as fundamentally unsound.  Although that conclusion accords with the Eighth Circuit’s, it conflicts with the holdings of the First and Third Circuits.  The Seventh and Eighth Circuits have cemented the circuit conflict by denying en banc review to consider adopting the government’s position.

Contrary to the Seventh and Eighth Circuit’s positions, both the text and the purpose of the FSA demonstrate Congress’s intent that the Act apply immediately at all initial sentencing proceedings.  The issue, which will potentially affect the sentences of thousands of current and future federal defendants, is squarely presented in this case. This Court should accordingly grant certiorari and reverse the court of appeals’ judgment.

Download 11-5721_Hill_v._United_States

October 19, 2011 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

"Lindsay Lohan Slammed: Probation Revoked, Jail Could Be Next!"

I consider it is bit perverse and certainly worrisome that I should consider any aspects of sentencing law and policy to be a "guilty pleasure." Nevertheless, as revealed by the headline of this post, which is drawn from this "Breaking News" report from E! Online, the sorrid stories surrounding Lindsay Lohan is sentencing catnip I just cannot resist.  Here are the latest details:

Looks like Lindsay Lohan's luck just ran out.  A ticked-off Los Angeles judge has just revoked the trouble-magnet actress's probation after determining that she screwed up one time too many times by failing to perform her community service.

A shocked Lohan was immediately cuffed and is currently being held on $100,000 bail. Lohan's attorney, Shawn Holley, informed the court that a bail bondsman was already on hand and tried to argue that her client not be cuffed in open court, but the judge said that was the decision of he Sheriff's Department.

Lohan was ordered to return to court for a Nov. 2 grilling to determine whether she'll wind up with another trip to jail. "Lindsay is hoping this matter will be resolved on November 2 and the Court will reinstate probation and allow her to continue fulfilling her community service," said Lohan's rep Steve Honig in a statement to E! News.

The drama all began this morning at 10:00 a.m. when Judge Stephanie Sautner made it clear that Lohan getting booted from her community service at the Downtown Women's Center violated the terms of her probation. The judge added that Lohan's reassignment to the Red Cross and the time she has spent working there will not count toward completing her community service. "No one has the power to change my sentence," Sautner said. "Not the volunteer center and not probation. She is not getting credit for any time at the American Red Cross."

Holley then spoke about how well her client has been doing as a volunteer at the Red Cross and that she was completing her Shoplifters' Avoidance class. According to a probation report, Lohan was "very cooperative at all times during the 12 hour program. She exhibited a very positive attitude and was more than willing to complete each and every written assignment on a timely basis. We believe that she has acquired new skills to resist the impulse to take things that don't belong to her."...

Holley argued that Lohan has a year to complete her probation. She revealed that Lohan had already called the morgue (the other portion of her community service) and was told her she could start tomorrow. Holley asked the judge to let Lohan do her 120 hours at the morgue and then her 380 hours at the Downtown Women's Center.

Judge Sautner proceeded to read the probation report in disbelief. "It says she is in compliance, but she has not done her sentence," Sautner said.  The judge then proceeded to revoke Lohan's probation.

October 19, 2011 in Celebrity sentencings, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Interesting grousings about former Justice Stevens' recent grousings

Thanks to How Appealing, I saw this interesting new essay by LawProf Richard A. Epstein, which is titled, "Uneven Stevens: The former justice's outbursts are doing a disservice to the Supreme Court." This dynamic essay covers lots of ground, and concludes with these notable complaints about former Justice Stevens' recent complaints about capital punishment doctrine and policy:

Justice Stevens has come to regret his earlier decision to reinstate the death penalty after the Supreme Court had placed a moratorium on capital punishment in the 1972 case, Furman v. Georgia.

His earlier vote to reinstate the death penalty depended on the assumption that the states "had narrowed the category of death-eligible offenses and would enforce procedures that would minimize the risk of error and the risk that the race of the defendant or the race of the victim would play a role in the sentencing decision." But three decades later, he concluded that the Court, led by the conservative justices, was prepared to sustain procedures that did not meet his notions of fair process, such that he eventually concluded that the death penalty was "pointless and needless."

On this issue, I have a great deal of sympathy with Justice Stevens’ uneasiness about the death penalty. But it is hard to trace the line between that attitude and the constitutional text. The basic purpose of the “cruel and unusual punishments” clause is to prohibit certain forms of punishment. Its precise scope is left unclear, but various forms of torture, e.g., drawing and quartering, seem to fall within its natural scope. The death penalty does not seem to fall within the clause, for elsewhere in the Bill of Rights, the death penalty is expressly contemplated in dealing with double jeopardy, the presentation of cases to grand juries, and due process protections against the deprivation of life, liberty, or property.

A most unfortunate line of Supreme Court cases, which first held that this decision on the use of the death penalty was unconstitutional, set the Court on the wrong path. In his recent musings, Justice Stevens’ argument against the death penalty boils down to his judgment that the possibility of error in death cases is enough to tip the case in favor of its abolition.

In this instance, it is hard to see how this particular observation, whether true or false, is anything other than a straight political judgment unmoored from the text or purpose of the Constitution. There are in fact many individual cases in which I have been deeply troubled by the application of the death penalty. In some cases, it strikes me as a clear violation of the right to due process for the state to refuse to use DNA evidence to resolve uncertainty over the identification of the proper offender. But it is a stretch to say that procedural concerns in some cases should lead to a constitutional ban on the death penalty in all, especially since (as against the federal government) both the prohibition against cruel and unusual punishments and the guarantees of due process are both found in the Bill of Rights.

Taken as a whole, what is so troublesome about Justice Stevens’ general views is the unmistakable sense that he has erased the line between what he thinks of as politically unwise and constitutionally required. Indeed, on his view of the world, constitutional law seems to depend on his own sense of right or wrong. That attitude is surely evident by his vote to concur in the decision of Justice Anthony Kennedy in Kennedy v. Louisiana to the effect that the Eighth Amendment prohibited the use of the death penalty for child rape on the ground that he, Justice Stevens, can best detect the evolving moral sentiments in the United States, when popular opinion runs pretty strongly the other way.

October 19, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack