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.
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.
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:
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.
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.
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 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.
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.”
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.
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.
"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 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.
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.
Rogue flight attendant gets probation after completing mental health program
According 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."
"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.
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.
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.
"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 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.
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.
"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.
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.
"Billions Behind Bars: Inside America's Prison Industry"
The title of this post is the title of this new CNBC special, which was first broadcast last night (while I was watching another crime-and-punishment-free GOP debate). The website for this program, which provides lots of video snippets, reports that there will be a rebroadcast at 8 pm this Friday, October 21. Here is how the network describes this notable show:
With more than 2.3 million people locked up, the U.S. has the highest incarceration rate in the world. One out of 100 American adults is behind bars — while a stunning one out of 32 is on probation, parole or in prison. This reliance on mass incarceration has created a thriving prison economy. The states and the federal government spend about $74 billion a year on corrections, and nearly 800,000 people work in the industry.
From some of the poorest towns in America to some of the wealthiest investment firms on Wall Street, CNBC’s Scott Cohn travels the country to go inside the big and controversial business of prisons. We go inside private prisons and examine an Idaho facility nicknamed the “gladiator school” by inmates and former prison employees for its level of violence. We look at one of the fastest growing sectors of the industry, immigration detention, and tell the story of what happens when a hard hit town in Montana accepts an enticing sales pitch from private prison developers. In Colorado, we profile a little-known but profitable workforce behind bars, and discover that products created by prison labor have seeped into our everyday lives — even some of the food we eat. We also meet a tough-talking judge in the law-and-order state of Texas who’s actually trying to keep felons out of prison and save taxpayer money, through an innovative and apparently successful program.
Feds want a lot more prison time for corrupt state pol Vincent Fumo
Sentencing briefs for the upcoming resentencing of former Pennsylvania State Senator Vince Fumo were filed yesterday. Comically, as detailed below, the headlines from various news sources reporting on the filings indicate quite different sentences purportedly being sought by federal prosecutors:
From the Philadelphia Inquirer here, "Prosecutors want Fumo jailed for 15 years"
From Newsworks here, "Prosecutors: Fumo should get at least 17 years for 'astonishing' corruption"
From the Philadelphia Daily News here, "Feds: Fumo should serve up to 21 years"
From Reuters here, "Former Pa. politician should serve up to 27 years: prosecutors"
Here is how the first of these pieces gets started:
Prosecutors Tuesday urged a federal judge to resentence former State Sen. Vincent J. Fumo to at least 15 years in prison, more than triple his current penalty, to properly punish him for "detestable" crimes that cost taxpayers and charities $4 million.
But in a rival filing, Fumo's defense team urged U.S. District Judge Ronald L. Buckwalter to simply reinstate the controversial 55-month sentence he imposed two years ago. They said Buckwalter should again grant Fumo a break for what the lawyers called his "extraordinary level" of public service, as well as for private acts of generosity. His attorneys described the 68-year-old Fumo as in poor health, facing the "real chance" of dying in prison, yet still mentoring fellow inmates.
In August, the U.S. Court of Appeals for the Third Circuit ordered Buckwalter to resentence Fumo. Without specifying what new sentence should be imposed, it said Buckwalter's legal reasoning had been shot through with errors, including a badly underestimated figure for the cost of Fumo's crimes. Buckwalter is to decide after a resentencing hearing Nov. 9.
October 19, 2011 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack
October 18, 2011
Fascinating claims about "Unintentional Punishment"
Professor Adam Kolber, who helped prompt a whole new line of theorizing about punishment through his piece on "The Subjective Experience of Punishment" (blogged here and here), has now up on SSRN this potent follow-up titled "Unintentional Punishment." Here is the abstract:
Theorists overwhelmingly agree that in order for some conduct to constitute punishment, it must be imposed intentionally. Some have argued that a theory of punishment need not address unintentional aspects of punishment, like the bad experiences associated with incarceration, because such side effects are not imposed intentionally and are, therefore, not punishment.
In this essay, I explain why we must measure and justify the unintended hardships associated with punishment. I argue that our intuitions about punishment severity are largely indifferent as to whether a hardship was inflicted purposely or was merely foreseen. Moreover, under what I call the “justification symmetry principle,” the state must be able to justify the imposition of the side effects of punishment because you or I would have to justify the same kind of conduct. Therefore, any justification of punishment that is limited to intentional inflictions cannot justify a punishment practice like incarceration because it cannot justify the side effects which necessarily accompany it.
I have previously discussed with Professor Kolber my view that his points and overall project can logically lead to a complete destruction of a retributivist defense of imprisonment (and perhaps all punishments). In this paragraph toward the end of the "Unintentional Punishment" paragraph, Professor Kolber reinforces my views here:
While some scholars have recognized that retributivism does not provide a complete justification of real-world institutions of state-imposed and -financed punishment,I make a more damaging claim: Even if we put aside cost and administrative concerns, principles of retributive proportionality cannot even justify the amount of prison time an offender should serve because they cannot justify the unintentional hardships of prison. I take it that even those retributivists who believe that retributivism fails to justify the allocation of resources in the criminal justice system or fails to provide a general justifying aim for punishment still believe that retributive principles of proportionality can tell us, at least in principle, how long to incarcerate deserving offenders. I show otherwise.
Important "fast-track" disparity reversal from the Eighth Circuit permits variances in non-fast-track districts
I have long wondered how many times the Supreme Court would have to reverse the Eighth Circuit concerning its tendency to place post-Booker restrictions on the sentencing discretion of district judges before the Eighth Circuit would get the message that the Justices are eager to emphasize the word "advisory" over the word "guidelines" in the modern sentencing system. An important new unanimous ruling today by an Eighth Circuit panel in US v. Jimenez-Perez, No. 10-3757 (8th Cir. Oct. 18, 2011) (available here) suggests that the Circuit has finally knows which way the federal sentencing winds have been blowing after Booker. Here are some snippets from Jimenez-Perez that explain what I mean:
In his first point on appeal, Jimenez-Perez contends that the district court procedurally erred when it concluded that it lacked the discretion to vary downward from the Guidelines advisory sentencing range based on the allegedly unwarranted sentencing disparity caused by the lack of Fast Track. The government attempts to rebut Jimenez-Perez's argument by relying on our unpublished per curiam decision in United States v. Rosario-Moctezuma, 411 F. App'x 942 (8th Cir. 2011), in which we held that Jimenez-Perez's "argument is squarely foreclosed by our decision in United States v. Gonzalez–Alvarado, 477 F.3d 648, 651 (8th Cir. 2007), abrogated on other grounds by Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed.2d 445 (2007), where we concluded that 'variances based on the absence of [F]ast-[T]rack programs are impermissible.'" Rosario-Moctezuma, 411 F. App'x at 943–44.
However, as Jimenez-Perez points out, we decided Gonzalez-Alvarado, upon which our unpublished Rosario-Moctezuma relied, before the Supreme Court decided Kimbrough v. United States, 552 U.S. 85 (2007), which held that district courts are permitted to vary downward from a properly calculated Guidelines range to compensate for the Guidelines' then-applicable 100:1 ratio governing powder- and crack-cocaine offenses. Our four-paragraph decision in Rosario-Moctezumamakes no mention of Kimbrough and, because it is unpublished, lacks controlling authority....
Upon review of these cases [from other circuits], we hold that Kimbrough undermines the rationale of our prior decisions that disallowed variances based on the unavailability of Fast- Track in a particular judicial district....
All four of our sister circuits that have concluded that a district court may vary downward to compensate for the sentencing disparities that Fast Track's unavailability creates in a given judicial district, have done so based on the observation that nowhere in the PROTECT Act does Congress purport to limit a district court's sentencing discretion under all § 3553(a) factors. These courts have based that conclusion on the Supreme Court's rejection in Kimbrough of the notion that Congress could effectuate such a limit on a district court's sentencing discretion implicitly....
We join the majority of our sister circuits to have addressed this issue.... Indeed, as stated earlier, the Supreme Court admonished that "[d]rawing meaning from silence is particularly inappropriate here, for Congress has shown that it knows how to direct sentencing practices in express terms." Kimbrough, 552 U.S. at 103 (emphasis added). The PROTECT Act lacks any such express directive....
In conclusion, we hold that the Supreme Court's decision in Kimbrough undermined this circuit's precedent holding that the PROTECT Act evinced a congressional intent to limit a district court's sentencing discretion to vary downward in recognition of the unavailability of Fast Track in a given judicial district.
Related posts on related issues and rulings:
- Significant new fast-track disparity ruling from Seventh Circuit
- Split Sixth Circuit expressly holds that fast-track disparity is proper basis for variance
- First Circuit blesses a variance based on fast-track disparity
- Ninth Circuit rejects variance based on fast-track disparity
- Eleventh Circuit panel splits over whether Kimbrough now allows consideration of fast-track disparity
- Third Circuit rejects sundry challenges to lack of fast-track sentencing programs in certain districts
- "Fast-Track Sentencing Disparity: Rereading Congressional Intent to Resolve the Circuit Split"
- The persistent problems with fast-track disparity after Booker and Kimbrough
- FSR issue, "Fast-Track Sentencing," now available on-line
Seeking better deterrence, should we try extensive shaming of white-collar criminals?
The question in the title of this post is the question I raise in this new "Ideas" column I put together upon the kind invitation of the folks at Time. In this forum, in which I thought it more important to be thought-provoking than path-breaking, I conclude my all-too-brief comments this way:
I wonder whether our legal system might better deter white-collar crime by imposing extensive shaming sanctions rather than extensive prison terms. What if, after perhaps a couple of years in prison, Rajaratnam was required every business day to ring the opening bell at the stock exchange while wearing his prison jumpsuit? What if Martha Stewart’s magazines and televisions shows had to include an image of Stewart eating in the federal prison’s cafeteria along with other convicted felons when she was imprisoned? What if all people convicted of a white-collar offense were required for decades to post a large sign on their lawns that highlighted to all that the resident inside did not always play by the rules?
A variety of shaming sanctions were widely used during the 18th Century in America, in part because prisons did not then exist and in part because shaming was viewed as a humane alternative to the death penalty, banishment or brutal physical punishments. More recently, academics have debated the potential virtues and vices of modern shaming sanctions — often after a judge has ordered a shoplifter to wear publicly a sign saying “I am a thief” or a police department has published drunk drivers’ names on billboards. Because we have never tried to make white-collar offenders “pay” for their crimes through extensive and prominent use of shaming sanctions, I cannot say with confidence that this alternative form of punishment will be more effective. But because deterrence research suggests very long prison terms for white-collar offenders may greatly extend their suffering (and taxpayer-funded imprisonment costs) with no corresponding benefit to society, I think it is time to start considering creative alternatives.
Long-time readers know I have long been supporter of the idea of trying shaming sanctions as an alternative to long imprisonment terms, and long-time academics know that Professor Dan Kahan and some others were discussing the idea of shaming sanctions for white-collar offenders many years before I started this blog. Still, in the wake of the record-long prison sentence given to Raj Rajaratnam for insider trading, I am grateful Time gave me a platform for putting out these shameful ideas again.
"Medicaid expansion seen covering nearly all state prisoners"
The title of this post is the headline of this interesting report from Stateline.org, which gets started this way:
The federal health law’s controversial Medicaid expansion is expected to add billions to states’ already overburdened Medicaid budgets. But it also offers a rarely discussed cost-cutting opportunity for state corrections agencies. Starting in 2014, virtually all state prison inmates could be eligible for Medicaid coverage of hospital stays—at the expense of the federal government.
In most states, Medicaid is not an option for prison inmates. But a little known federal rule allows coverage for Medicaid-eligible inmates who leave a prison and check into a private or community hospital. Technically, those who stay in the hospital for 24 hours or more are no longer considered prison inmates for the duration of their stay.
Under the 1965 law that created Medicaid, anyone entering a state prison lost Medicaid eligibility. The same went for people who entered local jails, juvenile lock-ups and state mental institutions. The reasoning was that states and local governments had historically taken responsibility for inmate health care so the federal-state Medicaid plan was not needed.
But an exception to that general rule opened up in 1997 when the U.S. Department of Health and Human Services wrote to state Medicaid directors saying inmates who leave state or local facilities for treatment in local hospitals can get their bills paid by Medicaid, if they are otherwise eligible. In addition to the incarcerated, those on probation or parole or under house arrest were among those who could participate.
Still, most state prisoners do not qualify for Medicaid. That's because all but a few states limit Medicaid to low-income juveniles, pregnant women, adults with disabilities and frail elders. The majority of people in lock-ups are able-bodied adults who do not qualify, even on the outside. In 2014, however, when Medicaid is slated to cover some 16 million more Americans, anyone with an income below 133 percent of the federal poverty line will become eligible. Since most people have little or no income once they are incarcerated, virtually all of the nation’s 1.4 million state inmates would qualify for Medicaid.
As the article goes on to explain, this could end up being very be good news for states struggling with prisoner health-care costs (and presumably bad news for anyone hoping federal spending will be reduced in the years ahead):
The 1997 ruling meant that even though a limited number of inmates would qualify, state corrections agencies could save millions in hospitalization costs because most hospital fees are lower for Medicaid patients and the federal government pays from 50 to 84 percent of the bill.
The problem was, few corrections agencies heard about the ruling. As a result, it took more than a decade for any state to take Washington up on its offer.... Even among corrections officials who did find out about the opportunity, many were reluctant to talk to Medicaid officials about the complex law, she says. Another barrier has been that many hospitals oppose the idea because it means lower fees for patients they are already serving.
So far, only Louisiana, Mississippi, Nebraska, North Carolina, Oklahoma and Washington State have taken advantage of the ruling. California is preparing to launch a statewide reimbursement program this year. Alabama, Michigan, New Jersey and Utah are studying the idea.
Mississippi was among the first to make the change. Launched in 2009, its program has already saved the state $10 million in inmate health care costs, says corrections commissioner Christopher Epps. The cost reduction comes partly from lower hospital fees and partly because 84 percent of the state’s Medicaid bills are paid by the federal government.... Out of 21,000 inmates in Mississippi, 242 have been approved for the program, and Medicaid reimbursements have paid for 2,088 days in the hospital. Perry says the most common reasons for hospitalization are childbirth, and treatment of cancer, liver and heart disease.
North Carolina launched a reimbursement program this year that includes all of the state’s 40,000 Medicaid-eligible prison inmates. According to a 2010 auditor’s report, the state corrections agency is likely to shave about $12 million from its $160 million annual health care bill by requiring hospitals and skilled nursing facilities to seek payment directly from Medicaid.
California, with about 160,000 inmates, is likely to be the next state to launch a Medicaid inmate reimbursement program. Corrections officials say they expect to have an enrollment system up and running by the end of the year. The state also plans to use Medicaid to fund hospital stays for some 6,000 inmates of state mental institutions. In 2014, of course, virtually all of the state's incarcerated will qualify for Medicaid-covered hospital stays.
Notable new data on the "crimmigration" front
The linkages between criminal justice law and policy and immigration law and policy has generated a new term, "crimmigration," and there are some notable blogs covering these intersecting issues (see here and here). And this news report from USA Today, headlined "Most illegal immigrants deported last year were criminals," adds some interesting data to these discussions. Here are the basics:
The U.S. deported nearly 400,000 illegal immigrants last year, and an increasing number of them were convicted criminals, according to figures set for release Tuesday by the Department of Homeland Security.
Deportations have been on the rise for the past decade, and the 396,906 illegal immigrants deported in fiscal year 2011 is the highest number yet, according to the figures.
Under the Obama administration, Homeland Security issued new priorities to focus deportations on convicted criminals, people who pose threats to national security and repeated border-crossers. Last year, 55% of those deported were convicted criminals, the highest percentage in nearly a decade.
Immigration and Customs Enforcement Director John Morton said the numbers reflect the administration's "focus on sensible immigration."... Critics say the numbers illustrate that the administration is intent on finding ways for illegal immigrants to stay in the country.
Obama last year endorsed the DREAM Act, which would have granted legal status to some children of illegal immigrants, but it failed to pass Congress. And Rep. Lamar Smith, R-Texas, chairman of the House Judiciary Committee, has questioned the reprioritizing of deportations, arguing that it amounts to a free pass for illegal immigrants who have not committed major crimes....
Others look at the numbers and wonder how they could be interpreted as leniency. "For billions of dollars to be spent so that 45% of the people we're deporting are not convicted criminals is not a good use of our enforcement dollars," said Ali Noorani, executive director of the National Immigration Forum, which supports a path for some of the nation's 11 million illegal immigrants to become citizens.
Of the convicted criminals deported last year, 1,119 were convicted of homicide, 5,848 of sexual offenses, 44,653 of drug-related offenses and 35,927 of driving under the influence, according to the Homeland Security figures. The number of illegal immigrants deported has risen from 116,782 in 2000. The percentage of criminal deportations was at 31% when Obama assumed office.
October 17, 2011
"Record-High 50% of Americans Favor Legalizing Marijuana Use"
The title of this post comes from this new release from the folks at Gallup in the wake of its latest polling on a subject of extra interest to those interested in a change in tactics in the war on drugs. Here are some highlights from this new Gallup report:
When Gallup first asked about legalizing marijuana, in 1969, 12% of Americans favored it, while 84% were opposed. Support remained in the mid-20s in Gallup measures from the late 1970s to the mid-1990s, but has crept up since, passing 30% in 2000 and 40% in 2009 before reaching the 50% level in this year's Oct. 6-9 annual Crime survey.
According to the National Institute on Drug Abuse, "Marijuana is the most commonly abused illicit drug in the United States." The National Survey on Drug Use and Health in 2009 found that "16.7 million Americans aged 12 or older used marijuana at least once in the month prior to being surveyed, an increase over the rates reported in all years between 2002 and 2008."...
A Gallup survey last year found that 70% favored making it legal for doctors to prescribe marijuana in order to reduce pain and suffering. Americans have consistently been more likely to favor the use of marijuana for medicinal purposes than to favor its legalization generally.....
Support for legalizing marijuana is directly and inversely proportional to age, ranging from 62% approval among those 18 to 29 down to 31% among those 65 and older. Liberals are twice as likely as conservatives to favor legalizing marijuana. And Democrats and independents are more likely to be in favor than are Republicans. More men than women support legalizing the drug. Those in the West and Midwest are more likely to favor it than those in the South.
I have added the emphasis to the portion of the report noting that levels of public support for ending pot prohibition is linked to age. This data seem uniquely important for the long-term political prospects of legalizing marijuana, in part because older people are generally more likely to vote and in part because many politicians are often looking for distinct issues through which to connect to younger voters.
Some recent and older related posts:
- California's largest association of doctors urges legalization of marijuana
- "Obama: From First to Worst on Medical Marijuana"
- Feds now talking about prosecuting media running medical marijuana ads!?!
- "Feds target Calif. pot dispensaries for closure"
- As criticisms of pot prohibition continues, new PBS documentary "Prohibition" is must-watch TV
- "Bummer: Barack Obama turns out to be just another drug warrior"
- New poll reports that large majority of Americans consider "War on Drugs" a failure
- Effective commentary concerning political discussion of pot policy and the drug war
- A list of themes for stopping drug war "madness"
October 17, 2011 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack
Washington Post editorial call for "Fair sentencing in the Abramoff case"
An inside-the-Beltway political scandal, which has led to a number of inside-the-Beltway sentencings, has now resulted in an inside-the-Beltway sentencing editorial from the Washington Post. This editorial is headlined "Fair sentencing in the Abramoff case," and here are excerpts:
Lobbyist Jack Abramoff pleaded guilty in 2006 to fraud and bribery charges as the leader of a scheme in which he ripped off Native American clients, plied public officials with all-expenses-paid luxury trips and pocketed tens of millions of dollars for himself. Mr. Abramoff, who agreed to pay millions in restitution, was sentenced to four years in prison.
Michael Scanlon, Mr. Abramoff’s right-hand man, and Robert Ney, a onetime Republican congressman implicated in the scandal, also entered guilty pleas. Mr. Scanlon was sentenced to 20 months, Mr. Ney to 30 months.
So what, according to the Justice Department, is the appropriate sentencing range for Kevin A. Ring, a lobbying associate of Mr. Abramoff who was convicted last year but never accused of personally benefiting from the scheme? A term of 17 to 22 years. One reason for the astronomical sentence, according to the government: Mr. Ring was the only lobbyist who went to trial instead of pleading guilty and cooperating with the United States.
The government backed off this assessment in a court filing last week, but only after a rebuke from Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia. “Defendant’s position is that the government is retaliating against him for exercising his Sixth Amendment right to trial,” the judge wrote. “It is easy to see why such an inference might be justified,” she added, especially when the government agreed to far lesser sentences for those who were clearly more culpable.
Individuals who plead guilty and cooperate with the government are often given lighter sentences. A willingness to accept responsibility and to help law enforcement officials identify others involved in wrongdoing promotes an important public purpose and saves the courts time and money. There is a fine line between rewarding someone who cooperates and punishing another who chooses to seek vindication in court. The Justice Department crossed that line in Mr. Ring’s case....
The government now says that 50 months — two months more than Mr. Abramoff’s sentence — would be fair. Mr. Ring is asking for five years’ probation. The judge has great latitude in this final stage of sentencing. Judge Huvelle, who is scheduled to formally sentence Mr. Ring at the end of this month, should ensure that he is held accountable for his serious crimes but not punished for choosing to challenge the government’s charges in court.
I am a bit disappointed that the Ring case, and especially Judge Huvelle's notable opinion in the case last month (blogged here), has not brought more attention to how common it is for federal prosecutors to urge remarkably more severe prison terms for those defendants who have the temerity to exercise their right to trial. But, of course, this phenomenon is just one of so many aspects of prosecutors' broad and unregulated sentencing discretion that gets rarely even noticed, let alone subject to criticism.
A comical complaint about laws and harsh guidelines
I am not a daily reader of the funny pages, and I am not sure I have ever before even seen the daily comic "Get Fuzzy." But I may need to start following this comic for professional reasons, because a kind reader alerted me to a sentencing-related punchline from today's Get Fuzzy strip.
The punchline from today's strip, which can be read in full at this link, is as follows: "I'm fine with the laws. It's the harsh minimum sentencing guidelines I'm having an issue with." I cannot help but wonder if the creator of Get Fuzzy has spent some time in federal courthouses; this line sound like it came straight from a federal sentencing transcript.
"In His Prior Life, Herman Cain Fought Stricter Drunk Driving Laws"
The title of this post is the headline of this notable new report from TPM2012. Here are the interesting particulars:
While leading the National Restaurant Association, Herman Cain served as the industry’s lobbyist-in-chief, leading the charge against laws that could harm the food service business. One of his signature causes: stopping stricter drunk driving laws.
When Cain took over as CEO of the NRA in 1996, anti-drunk driving groups were leading a campaign to lower the blood alcohol limit for a DUI to .08 across the country: the equivalent for a 170 pound-man of about five beers in two hours. The majority of states used a .10 limit as their standard, which advocates argued was an insufficiently tough deterrent and left plenty of still-dangerous drivers on the road.
Enter the restaurant industry, whose members with liquor licenses faced diminished business as a result of the changes. Led by Cain, they lobbied hard against .08 changes at the state and federal level, claiming that research showed little improvement in states that had made the switch already.
Cain himself took to the pages of his local Omaha World-Herald in 1998, where Godfather’s Pizza is headquartered, to argue with the paper’s editorial board against efforts to impose a federal law. "The problem is not the responsible drinker," Cain wrote in one letter to the editor. "It is the alcohol-abuser who gets behind the wheel of a car. In fact, according to the National Highway Traffic Safety Administration, two-thirds of all alcohol-related fatalities are caused by drivers with a BAC of 0.15 or higher."
MADD Vice President Diane Riibe responded with her own op-ed. “Mr. Cain suggests going after the ‘alcohol abuser’ rather than the ‘responsible drinker,’” she wrote. “In 1996, 17,126 people were killed in alcohol-related crashes. More than 3,700 people were killed in crashes in which the drivers’ blood-alcohol levels were under 0.10 percent -- Nebraska’s limit. Does Mr. Cain think that ‘responsible drinkers’ killed those 3,700 people?”
This prompted an angry response from Cain, who took offense at Riibe for impugning his industry’s motives. “It’s a shame that an organization that has done so much to save lives resorts to personal attacks and accuses the other side of using fudged numbers and having ill intentions,” he wrote. “MADD should channel its energy toward alcohol abusers, not people who respectfully and politely disagree with MADD.”
The NRA claimed vindication the next year when a report by the nonpartisan General Accounting Office determined that several studies cited to demonstrate the effectiveness of .08 laws relied on flawed methodology. But the report didn’t exactly shoot down the .08 idea either, concluding that it “can be an important component of a state’s overall highway-safety program, but a 0.08 BAC law alone is not a ‘silver bullet.’”
It was good enough for Congress at least, which sent a federal .08 law to President Clinton for his signature with strong bipartisan support in 2000. It’s now the limit in all 50 states....
A spokesman for Cain did not respond to requests for comment on the candidate’s current position.
Very interesting. As regular readers know, I think drunk driving is one of a few very risky and harmful criminal offenses often subject to sentences that are generally too lenient (especially for repeat offenders). That said, I also think there is something to the suggestion that the very toughest drunk driving laws and sanctions ought to be targeted to those with especially high BACs and to repeat offenders. Moreover, there is particular value in this setting at considering empirical evidence about what kinds of laws and what kinds of sanctions are most effective at reducing drunk driving harms.
For all these reasons, I am disinclined to assail Herman Cain for his past advocacy on this front. But I am now even more eager to hear not only what the GOP's hottest candidate thinks about drunk driving harms and sanctions, but also what he thinks about a range of other crime and punishment issues. Perhaps this TPM2012 report will even prompt some discussion of these kinds of policy issues in the next scheduled GOP debate, which happens to be located in a place (Vegas) where there is no shortage of drinking and driving.
Some recent and older related posts:
- What are criminal justice and drug war views of Herman Cain, the new GOP front-runner?
- Hoping (perhaps foolishly, yet again) latest GOP debate addresses crime and punishment
- Another GOP debate, another chance to (fail to) discuss drug war and mass incarceration
- Might GOP start debating Texas crime and punishment with Rick Perry in the 2012 race?
- "Do Sentencing Enhancements for Drunk Driving Decrease Recidivism? a Regression Discontinuity Approach"
- Why do we worry so much more about sex offenders than drunk drivers?
- Technology versus toughness to combat drunk driving
- State judge makes pitch for ignition locks for drunk drivers
- "Car breath tests for 1st-time DUI offenders?"
- A telling attack on mandating ignition interlocks for all drunk drivers
- Shouldn't we be much, much tougher with drunk drivers?
California's largest association of doctors urges legalization of marijuana
As detailed in this Los Angeles Times article, California's "largest doctor group is calling for legalization of marijuana, even as it pronounces cannabis to be of questionable medical value." Here is more:
Trustees of the California Medical Assn., which represents more than 35,000 physicians statewide, adopted the position at their annual meeting in Anaheim late Friday. It is the first major medical association in the nation to urge legalization of the drug, according to a group spokeswoman, who said the larger membership was notified Saturday.
Dr. Donald Lyman, the Sacramento physician who wrote the group's new policy, attributed the shift to growing frustration over California's medical marijuana law, which permits cannabis use with a doctor's recommendation. That, he said, has created an untenable situation for physicians: deciding whether to give patients a substance that is illegal under federal law.
"It's an uncomfortable position for doctors," he said. "It is an open question whether cannabis is useful or not. That question can only be answered once it is legalized and more research is done. Then, and only then, can we know what it is useful for."
The CMA's new stance appears to have as much to do with politics as science. The group has rejected one of the main arguments of medical marijuana advocates, declaring that the substance has few proven health benefits and comparing it to a "folk remedy."
The group acknowledges some health risk associated with marijuana use and proposes that it be regulated along the lines of alcohol and tobacco. But it says the consequences of criminalization outweigh the hazards. Lyman says current laws have "proven to be a failed public health policy." He cited increased prison costs, the effect on families when marijuana users are imprisoned and racial inequalities in drug-sentencing cases.
The organization's announcement provoked some angry response. "I wonder what they're smoking," said John Lovell, spokesman for the California Police Chiefs Assn. "Given everything that we know about the physiological impacts of marijuana — how it affects young brains, the number of accidents associated with driving under the influence — it's just an unbelievably irresponsible position."
The CMA's view is also controversial in the medical community. Dr. Robert DuPont, an M.D. and professor of psychiatry at Georgetown Medical School, said the association's call for legalization showed "a reckless disregard of the public health. I think it's going to lead to more use, and that, to me, is a public health concern. I'm not sure they've thought through what the implications of legalization would be."
Dr. Igor Grant, head of the Center for Medicinal Cannabis at UC San Diego, defended the drug's therapeutic use. "There's good evidence that it has medicinal value," he said. "Can you say it's 100% bulletproof? No. But the research we've done at the center shows it's helpful with certain types of pain."
The federal government views cannabis as a substance with no medical use, on a par with heroin and LSD. The CMA wants the Obama administration to reclassify it to help promote further research on its medical potential.
But Washington appears to be moving in the other direction. As recently as July, the federal government turned down a request to reclassify marijuana. That decision is being appealed in federal court by legalization advocates. In recent weeks, the Obama administration has begun cracking down on California's medical marijuana industry, threatening to prosecute landlords who rent buildings to pot dispensaries....
Opinion polls show that state voters continue to be in favor of medical marijuana but are divided on the question of total legalization. A recent survey by the Public Policy Institute of California found 51% opposed to complete legalization and 46% in favor.
If the CMA and other groups of doctors start becoming vocal advocates for ending pot prohibition, I think there is a pretty good chance public opinion may start tilting even more toward support for legalization efforts. Doctors are well positioned to bring more light and less heat to the discussion of these issues, especially if they emphasize the potential value of additional research on possible benefits from medical use of marijuana and also discuss more broadly the view that marijuana should be viewed principally as a public health concern rather than as a criminal justice concern.
I also wonder if the CMA or any others have explored the potential connections between pot use and abuse and prescription pain killer use and abuse. I keep seeing stories about the huge uptick in overdose deaths from oxycodone misuse and the problems created by "pill mills" selling prescription drugs. When I see these stories, I keep wondering if allowing more people to have more access to relatively mild drugs might actually help reduce the harms of prescription drug abuse.
Taking stock of New York's historic prison population drop
This lengthy AP article discusses the what and the how of New York's remarkable reduction in its state prison population in recent years. Here are highlights:
Nearly 40 years after tough new drug laws led to an explosion in prison rolls, New York state has dramatically reversed course, chalking up a 62 percent drop in people serving time for drug crimes today compared with 2000, according to a Poughkeepsie Journal analysis.
The steep decline — driven, experts said, by shifting attitudes toward drug offenders and lower crime — means that nearly 17,000 fewer minorities serve state time today than in 2000, groups that were hardest hit by the so-called war on drugs. Overall, the prison population declined 22 percent.
Hispanics and blacks are still vastly overrepresented in prisons but incarceration experts said the overall figures were impressive. "The drop itself is really quite extraordinary," said Michael Jacobson, director of the Manhattan-based Vera Institute of Justice, a nonprofit center for justice policy research....
Nationally, New York charted the biggest drop in its prison rolls from 2000 to 2010, a decade when 37 state prison systems had double-digit population hikes. Ironically, it was the state's 1973 drug laws, championed by then-Gov. Nelson A. Rockefeller, that helped kick off a massive national prison buildup — and the highest incarceration rate in the industrialized world.
Now — with state prison spending at $3.7 billion in fiscal 2010, or $55,000 per inmate — New York may be leading the way back. Nearly 7,700 fewer blacks are incarcerated in state prison in 2011 compared with 2000, the Journal study found. In addition, 35 percent fewer female inmates serve time — and 77 percent fewer women serve drug sentences as their top crime. Inmates were also older — by three years on average, according to the analysis, which used databases of the inmate population on one day each in February 2000 and March 2011.
The trend is an outgrowth, experts said, of factors including the diversion of more drug offenders to treatment, changes in drug laws and lower crime rates — especially in New York City, which currently ranks among the safest big cities in America. There, aggressive "stop-and-frisk," zero-tolerance and computer-driven anti-crime programs have been employed, some say, with remarkable results....
The decline in drug-convicted inmates means more of the type of inmate for which penitentiaries were constructed: violent offenders. Today, the No. 1 top crime of sentenced inmates is second-degree murder, with just over 8,000 convicts — about the same as in 2000. In 2000, the most common top crime for which inmates were incarcerated was third-degree criminal sale of a controlled substance — with almost 10,000 people sentenced. That's now down to about 3,000.
"I would argue that the right people are being sentenced to prison," said Brian Fischer, New York state's prison commissioner. "Was prison the best alternative for drug abusers? Clearly it was not."...
Before adoption of its drug laws in 1973, New York had built just 18 prisons in 140 years. Driven by mandatory drug sentences and other tough-on-crime statutes, the state opened 52 prisons from 1973 to 2000, raising the population from 13,400 to a historic peak, on Dec. 12, 1999, of 71,538 inmates. It was 55,599 last week....
Janet DiFiore, a former judge and current Westchester County district attorney ... ties the prison downturn both to drug law reforms — in 2004, 2005 and 2009 — and a recognition in law enforcement that alternatives like drug treatment were needed. Almost 200 drug courts have been opened statewide, most since 2000, that divert many otherwise prison-bound offenders to treatment.
The downsizing doesn't impress some reform advocates, who still see the system as hugely bloated, especially with blacks and Hispanics, now 77 percent of inmates and down from 84 percent in 2000. "The disparities have diminished somewhat and that's good news, but that does not put us as a state in a place that we can be proud of," said Donna Lieberman, executive director of the New York Civil Liberties Union, which has opposed city frisking policies as invasive and discriminatory. "We were starting at a pretty horrific place from which to decline."...
What's clear is that the downturn is continuing — equal to one or two large prisons in each of the last three years. And it may accelerate with most experts agreeing that the latest drug law reforms have yet to fully kick in. In 2009, amendments to the Drug Law Reform Act gave judges far broader discretion to divert offenders to drug treatment or sentence them to lesser, non-mandatory, terms. In 2004 and 2005, the act reduced the harshest sentences — 15 years to life for selling as little as two ounces of cocaine or possessing four ounces — but those reforms only marginally reduced the population, experts said.
The reforms are an outgrowth of something much larger than a drug-war backlash, according to close prison observers, among these ballooning prison budgets, the economic downturn and a realization that punishment isn't always the answer. "Prosecutors were recognizing that our job was not just about handcuffs and prison," said DiFiore. "It was a mindset change."
"In a time of economic recession it causes a rethinking," said Alan Rosenthal, director of justice strategies for the Center for Community Alternatives, a Manhattan-based sentencing reform group. "We had a shift from tough on crime to smart on crime," an acknowledgement, he added, that high prison rolls did not equate with lower crime.
Rates of major crime in New York state have dropped 63 percent since 1990 — a consistent decline even as the prison population rose an average 4 percent a year in the 1990s and declined an average 2 percent a year in the 2000s.
This important article not only highlights the links between the drug war and large prison populations, but also documents that state decisions to fight the drug war using smarter (and less costly) alternatives to imprisonment can facilitate a dramatic reductions in prison populations without obvious adverse public safety consequences.
I find it especially notable that New York managed to reduce is prison population over 20% during the same period in which California was fighting in court over court orders to fix its overcrowded prisons. I genuinely believe if the folks in California had embraced the creation of a sentencing commission that could have studied and implemented effective changes taking place in other states, the Plata litigation would have played out much differently and the massive prisoner release order that worries so many would never have come to pass.
October 17, 2011 in Data on sentencing, Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack
October 16, 2011
Could California have lots of executions once its death machinery is operational again?
The question in the title of this post is prompted by this effective new article from the San Jose Mercury News, which is headlined "California's execution machine could crank up." Here are excerpts:
Amid renewed efforts to repeal California's death penalty and nearly six years into a de facto moratorium on executions, San Quentin's death row has quietly piled up an unprecedented number of inmates who have exhausted their legal appeals and would face imminent death by lethal injection if the state resumes carrying out the ultimate punishment.
At least a dozen inmates could be executed in a span of a few months if an oft-stalled legal challenge to the state's lethal injection method is resolved, roughly the same number of condemned murderers California has put to death in more than three decades of capital punishment.
A Bay Area News Group review shows 12 death row inmates have been turned away in their appeals all the way through the U.S. Supreme Court, generally considered the final stage in the lengthy death penalty review process. At least two other inmates have lost their appeals through the 9th U.S. Circuit Court of Appeals, which ordinarily is the last, best hope to overturn a death sentence, while others are awaiting rulings from that court.
Three Bay Area condemned killers are among the 12 -- David Allen Raley, from Santa Clara County; Harvey Heishman, from Alameda County; and Douglas Mickey, sentenced in San Mateo County. The dozen inmates eligible for execution dates have averaged 27 years on death row, where 720 prisoners await their fate.
For a state where executions have been such a rarity, the prospect of a flurry of them could test California's appetite for the death penalty, possibly at a time when foes of capital punishment are working furiously toward a November 2012 ballot measure that would abolish death sentences altogether....
The timing of a resumption of executions is no sure thing. The lethal injection challenge continues to languish in the federal courts, but may get moving early next year because prison officials recently notified a federal judge they finally will have a new execution team in place by this coming week. Lawyers on both sides had been awaiting that development to proceed to a hearing.
But if the case continues to drag on, that will only add to the backlog of inmates who finish their appeals. Even the generally liberal 9th Circuit has been upholding more death sentences in recent years, and has found itself quickly reversed in several instances by the U.S. Supreme Court when it has attempted to overturn them....
Experts say there could be a variety of reactions and results if California becomes a state that regularly carries out executions, including further strains on the legal system. Ohio's state Supreme Court, faced with a similar rush a few years ago, has now scheduled one execution per month through 2013 to pace the process. In California, prosecutors would need to turn to judges in their counties to secure execution dates for each inmate, a scattered process that could take months or longer to unfold.
In addition, Gov. Jerry Brown and his approach to the death penalty would be quickly tested in a string of clemency requests; no California governor has commuted a death sentence in the modern death penalty era.
Death penalty advocates say executions would remove one common argument against capital punishment in California. "If we do actually start carrying out executions, it would undermine the argument that the death penalty is not being enforced and we should get rid of it," said Kent Scheidegger, director of the Criminal Justice Legal Foundation.
Penn Law Review presents “Sentencing Law: Rhetoric & Reality”
I have the great honor of having been invited to participate in this great sentencing conference taking place later this month at the University of Pennsylvania Law School. And I now have the great pleasure of providing a bit of promotion for this event by reprinting this e-mail text from the Articles Editor of the University of Pennsylvania Law Review
The University of Pennsylvania Law Review is hosting its 2011 symposium, “Sentencing Law: Rhetoric & Reality” at the Law School on October 28 and 29. The event will cover the current dynamic issues of this area of law with distinguished judges, legislators, scholars, practitioners, and nonprofit leaders.
The featured panel co-sponsored by the National Association of Criminal Defense Lawyers (NACDL) and Right on Crime will include Congressman Bobby Scott, former DEA Administrator Asa Hutchinson, the fourth director of the FBI William S. Sessions, and Pennsylvania State Senator Stewart Greenleaf, all of whom are in a position to effect real change.
The Hon. Denny Chin of the U.S. Court of Appeals for the Second Circuit, who as a district court judge presided over the guilty plea and sentencing of Bernie Madoff, will serve as our featured lunch speaker. The New York Times called the sentence he imposed–150 years imprisonment -- “the most stunning and widely discussed sentencing in the history of American white-collar crime.”
For more information about the schedule, speaker biographies, and registration, please visit http://www.pennumbra.com/symposia. Registration fees for the event are: $75 for professionals in private practice; $35 for government and nonprofit employees, and non-University of Pennsylvania academics; $10 for non-University of Pennsylvania students; and free for University of Pennsylvania faculty and students. Symposium attendees may receive up to 12 hours of Continuing Legal Education credit at $10 a credit.