October 24, 2011
Five extra years in prison for cellphone call to celebrate parole offer!?!
I just saw this remarkable story from the Los Angeles Times, which tells a parole sentencing tale so sad and ridiculous that I am not even sure Kafka could have dreamed it up. The story is headlined, "Borrowed cellphone slams prison cell shut; An inmate says used a contraband phone to tell relatives he was about to be paroled. Caught, he gets five more years in prison." Here are the details:
Dwayne Kennedy threw a man from a moving car in 1988, but that's not what's keeping him in prison today. It's not the inmate he stabbed 17 years ago either; the state parole board forgave him that.
Instead, California prison officials are keeping Kennedy locked up for an extra five years — costing taxpayers roughly $250,000 — because guards caught him with a contraband cellphone he says he borrowed to tell his family he had just been granted parole and was coming home.
It was "just stupid on my part for even using it," Kennedy told a pair of parole commissioners convened in June 2010 to decide his punishment for breaking prison rules. But "cellphones are just everywhere in prison nowadays.... It's easy to borrow one from a guy," Kennedy said....
Phones are so prevalent in California prisons that even highly scrutinized inmates can get their hands on them. Charles Manson has been caught with two. Inmates have used cellphones to run drug rings, intimidate witnesses and order violent attacks on the outside. Despite state leaders' rising anxiety over inmates obtaining phones, smuggling them into prisons wasn't against the law until this month.
Gov. Jerry Brown signed a bill on Oct. 6 making it a misdemeanor punishable by up to six months in a county jail. Brown also issued an executive order that requires prison officials to increase the number of random searches of employees and to determine how much it would cost to send them through airport-style screening on their way into work.
Under the new law, most inmates caught with phones face losing 90 days of credit earned for good behavior. In Kennedy's case, using the cellphone derailed his parole bid and effectively lengthened his prison stay by at least five years. That's because a 2008 ballot measure extended the time inmates serving life sentences must wait for a new hearing when they are denied parole or their parole offer is revoked.
When the two parole commissioners met to decide his punishment for violating the cellphone rule, Kennedy said that he had made the calls because he was "overwhelmed and just happy" that he had been granted parole. "He was so happy.... We were crying and praying," recalled his sister, Yolanda Kennedy, one of the people he called.
But months later, parole commissioners John Peck and Dennis Smith found that Kennedy's willingness to violate the prison rule proved he is an "unreasonable risk of danger to society." They revoked his parole offer and imposed the five-year wait until his next hearing.
The commissioners' decision seemed a bit severe to Debbie Mukamal, executive director of Stanford University's Criminal Justice Center, who noted that the state is under a U.S. Supreme Court order to remove tens of thousands of inmates from its overcrowded prisons. "I wonder if they're punishing [cellphone use] more severely because it's something they feel like they can't control," Mukamal said.
Heidi Rummel, a former federal prosecutor who now advocates for inmates' rights as co-director of USC Law School's Post-Conviction Justice Project, said there should be some evidence of harm before imposing such a harsh penalty. "It would seem that why he had the cellphone would be a critical factor in deciding whether it made him a danger to society," Rummel said.
The Los Angeles County Superior Court and the 2nd District Court of Appeal have rebuffed Kennedy's efforts to get the decision overturned. His attorney, Keith Wattley, has filed a petition with the state Supreme Court. "There's never been any allegation he's done anything illegal with this phone," Wattley said.
Kennedy, 44, has been in prison since 1990, serving 15 years to life for kidnapping and conspiracy to commit murder. He's now at Chuckawalla Valley State Prison in Blyth. He became eligible for parole in 1999 but a decade passed before parole commissioners found he was no longer a threat to society and recommended his release. They noted that Kennedy had stayed out of trouble for seven years and had a stable home and good job waiting for him on the outside.
The cellphone bust changed everything. "Frankly, this panel didn't buy that you were going to call your supporters to thank them," said Peck, a parole board commissioner and recently retired prison guard who presided over the June 2010 hearing. "There is no way you would put your parole date at risk to make a thank-you call."
Federal prosecutor in Western NY (wisely?) recommending lots of capital prosecutions
This lengthy new piece out of Buffalo, which is headlined "William Hochul puts death penalty to frequent test: U.S. attorney uses federal charge often, unsuccessfully and at a significant cost," provides a fascinating perspective on the local operation of the federal death penalty. Here are the details:
It's hard to find a federal prosecutor anywhere in the nation who has filed as many potential death penalty cases as William J. Hochul Jr., the U.S. attorney for Western New York. So far, none of those cases has led to an execution. But they have cost taxpayers a bundle of money -- more than $661,000 in the past year.
Since taking office in March 2010, Hochul has filed potential death penalty cases against 24 people. That's more than those filed by federal prosecutors in Los Angeles, Chicago, Detroit, Miami or any city in Texas. In fact, among the 94 federal prosecutors throughout the land, only two others -- both from New York City-area districts far more populous than Western New York -- have filed as many potential death penalty cases with Washington as Hochul in the past two years....
The $661,000 is more than the combined amount spent by the region's four previous U.S. attorneys on death penalty-eligible cases over the previous 11 years. During those 11 years, a total of 12 death penalty-eligible cases were filed. Hochul has filed twice that many in less than two years.
"The numbers in Buffalo are not part of a national trend. It does not appear to be something that is coming out of Washington. It's something that Mr. Hochul does far more often than almost any other federal prosecutor," said James P. Harrington, one of a handful of Buffalo defense lawyers who are certified to handle death penalty-eligible cases. "It is a colossal waste" of court time, court resources and money, said Harrington, who also opposes the death penalty on moral grounds.
According to death penalty defense lawyer Kevin M. McNally, Hochul is one of a small number of federal prosecutors who file death penalty-eligible charges in cases involving drug gang members who kill other drug gang members. He said juries are rarely willing to pronounce the death penalty in "gangster-on-gangster" cases. "I seriously doubt whether any of [the Hochul] defendants will actually face the death penalty at trial," said McNally, of Frankfort, Ky., who heads the Federal Death Penalty Resource Counsel Project.
While some defense lawyers say Hochul is overzealous and is wasting taxpayer money, Hochul, 52, defends his record. He said he is enforcing federal law and trying to protect law-abiding people in neighborhoods terrorized by gang violence. Hochul said his office does elect to file murder and racketeering charges in some gang-murder cases, and it's the murder charge in the context of racketeering that makes the cases death penalty-eligible. But ultimately -- after a review process that usually takes months -- the final decision on whether to pursue the death penalty is made by Attorney General Eric Holder in Washington. And after a death penalty case goes to trial, a jury decides whether the defendant will face execution.
"I often go out and speak to block clubs in the inner city, and people come up to me and tell me they are afraid to go out for a walk in their own neighborhood, or sit in their own backyard," Hochul said. "We will continue to bring these cases against the most violent offenders and leave the ultimate decisions to the attorney general and juries."
Statistically, gang violence in the region has decreased over the past two years, and Hochul contends that prosecutions undertaken by his office with the FBI and other agencies helped. Buffalo Police Commissioner Daniel Derenda and Niagara Falls Police Superintendent John R. Chella agree.
"I would absolutely not want to see the [federal] death penalty taken off the books," said Chella. While such cases rarely lead to executions, they often lead to guilty pleas that put violent criminals in prison for decades, sometimes life, Chella said. "[Hochul] has helped us to take some very, very dangerous people off the streets," Derenda said....
Nationally, the Justice Department has authorized about 500 death penalty prosecutions -- only one in Western New York -- since Congress reinstated federal capital punishment in 1988. And since 1988, only three men in the nation have been federally executed. There have been no federal executions in more than eight years....
The last federal execution in America was that of Louis Jones Jr., another decorated Gulf War veteran, who kidnapped, raped and murdered a 19-year-old female soldier in Texas. He was executed in March 2003. Though hundreds of millions of dollars have been spent on such cases since Jones was put to death, no one has been executed under the federal death penalty since. At least 66 federal defendants have been sentenced to death since 1988, but their executions have been held off by legal appeals....
Hochul is filing these cases because "I believe he is an overzealous prosecutor," said Terry Granger, a Buffalo defense lawyer whose clients have included convicted murderer and gang-leader Donald "Sly" Green. "I do not see how even the staunchest supporter of the death penalty could argue that these prosecutions are an efficient use of taxpayer money," added David Kaczynzki, with New Yorkers for Alternatives to the Death Penalty.
Supporters of the death penalty say it is the kind of tough law enforcement measure that has helped deter violent crime in recent years, and they point to local, state and national crime statistics as proof. Officials said crime in the state was down 4.4 percent in the first six months of 2011, as compared with 2010. The rates of murder, rape, robbery and assault were all down.... In Buffalo, homicides were down 23 percent, shootings were down 25 percent and violent crime in general was down 18 percent in the first half of this year, Derenda said. Niagara Falls' crime rate is also down....
"We take these decisions very seriously," Hochul said. "We only file capital charges against those defendants who appear to be the worst of the worst."
Once a potential death penalty case is filed, each defendant is assigned two top defense attorneys, who are each paid $178 an hour by the federal courts. The usual rate for a court-appointed federal defense attorney is $125 an hour, and -- aside from death penalty-eligible cases -- defendants rarely get more than one.... Other support personnel for the defense attorneys are also hired, including "mitigation experts," who dig into the defendants' backgrounds seeking information that might convince the Justice Department not to pursue the death penalty. Mitigation experts get up to $100 an hour, plus travel expenses. In several local cases, mitigation experts traveled to Puerto Rico to interview friends and families of defendants....
"The federal system is good in that it usually guarantees that each defendant will get highly qualified representation," said Richard C. Dieter, executive director of the Death Penalty Information Center in Washington. "But it adds a whole new layer of costs that taxpayers have to pay."
How expensive can a single federal death penalty case become? According to the Death Penalty Information Center, the Justice Department's recent unsuccessful effort to execute New York City mobster and killer Vincent "Vinnie Gorgeous" Basciano cost taxpayers between $4 million and $10 million....
[A]ccording to District Court Clerk Michael J. Roemer, death penalty cases were by far the most costly in the region last year. Over the past year, more than $661,000 was spent by the court system on defense-related expenses for 24 death penalty-eligible defendants in the district, said Lisa G. Ball, chief financial officer for the district.
On average, that's more than $25,800 per case, and half of those cases are still pending. During the same time period, about $2.47 million was spent defending at least 230 other defendants who received legal aid. That's about $10,700 per case, and many of those cases have been completed....
The last time the Justice Department approved a local death penalty case for trial was the 1993 case of Darryl "Reese" Johnson, an enforcer for the LA Boys gang. Johnson was accused of multiple killings, assaults and kidnappings. Hochul handled the case as an assistant U.S. attorney. Rather than face such a trial, Johnson decided to plead guilty to murder and racketeering. He was sentenced to eight terms of life imprisonment -- believed to be the longest sentence ever handed down in a Buffalo courtroom -- in 1995. Hochul said that case took one of most violent criminals in Buffalo's history off the streets forever.
With all due respect to David Kaczynzki, I think the federal capital prosecution of Darryl "Reese" Johnson shows why even an agnostic supporter of the death penalty (like me) can claim that these new federal capital prosecutions are an efficient use of taxpayer money. If and whenever a capital prosecution prompts a murderer to plead guilty, the cost savings from avoiding a full-blown federal trial and appeals are significant and save many times more than gets spent at the outset of a federal capital prosecution. (Though federal capital trials surely cost millions more than non-capital trials, a full-blown non-capital trial in just one big federal criminal case is likely to cost much more than the $661,000 figure being stressed here.)
In addition, it is important to keep in mind that USA William Hochul's decision to seek a federal capital prosecution in these 24 cases results in the defendants receiving a "Cadillac" defense which should help ensure (1) there is no wrongful prosecution/conviction of an innocent defendant, (2) that prosecutors do not engage in any misconduct, and (3) that all relevant mitigating evidence is discovered as early as possible. In other words, the extra money being spent on defense costs because of USA Hochul's capital charging decisions likely benefit not only defendants, but also the entire federal criminal justice system, in lots of ways. Defendants receiving a great defense from the very outset of their prosecution are far less likely to be wrongfully convicted or over-punished, which can and should save significant federal resources in the long-run.
Further, and not to be overlooked here, there are likely great savings to New York taxpayers from having major murders handled in a major way in the federal system. Beyond the fact that New York no longer has a death penalty — and thus has no ready means for state prosecutors to induce multiple murderers to take a LWOP plea — most major prosecutions at the state level have additional layers of costs because defendants get two post-conviction bites at the apple through state and federal habeas review. In contrast, a federal defendant only get one bite via federal 2255 review.
I could go on and on explaining what seems sound, not wasteful, about how federal justice is being administered in Buffalo — largely because I have long thought that an exclusively federal death penalty system (which they now have in NY) would be the most just and most efficient way for this country to administer capital punishment. I understand fully why staunch death penalty abolitionists view these federal capital prosecutions to be unjust and unjustified. But I hope others might understand fully why anyone who is not a staunch death penalty abolitionists could find virtue and economic justifications in how USA William Hochul is doing his job up in Buffalo.
Some older and more recent related posts:
- The federalization of the death penalty
- More support for an exclusively federal death penalty
- Context-free ruminations on the federal death penalty
- Debating the death penalty as bargaining chip
- Research on capital punishment's impact on plea deals
- Another example of the death penalty as an effective plea bargaining tool
- Great new (though still dated) examination of the death penalty and plea bargaining
- A poster child for the (federal) death penalty?
- The federal law gap in the NJ death penalty report
- The federal death penalty in America's paradise
- The federal death penalty in NY and elsewhere
- Ashcroft's death penalty "legacy"
- Wondering about the state and fate of the federal death penalty
- Is the Obama Administration about to get the federal death penalty going again?
Is taking money less harmful to victims than a "punch in the face" or selling crack?
The question in the title of this post is prompted by a sentencing argument being made in a notable white-collar case from California. The back story appears in this interesting article, headlined "Former MoFo Partner Pleads Guilty to Bilking Insurers, San Francisco Schools," which first caught my eye because I happened to be law school classmates with one of the defendants. But the passages in the penultimate paragraph below generated today's sentencing question:
Jonathan Dickstein, a former Morrison & Foerster partner in San Francisco, could wind up in prison after pleading guilty Tuesday to 31 felony counts stemming from a $400,000 scam he and his wife concocted based on their autistic son's education and medical treatment.
Dickstein is scheduled to be sentenced November 15 following his conviction on charges including grand theft, forgery, insurance fraud, and conspiracy, a spokesman for the San Francisco District Attorney's office confirmed Friday.
Dickstein and his wife, Barclay Lynn, were arrested in August 2010 and charged with creating a fictitious in-home care and education provider for their autistic son. The couple used the fake company, Puzzle Pieces, to double bill their medical insurance providers, Anthem Blue Cross and MoFo's own self-insurance arm, and the San Francisco Unified School District. School district lawyers alerted authorities to the scam.
Dickstein — a Stanford University and Harvard Law School graduate and former cochair of MoFo's life sciences practice — resigned from the firm to launch a solo practice five months before he and his wife were arrested....
Lynn, who also pleaded guilty to 31 counts, was sentenced last month to one day in jail and received credit for time served, her lawyer, Douglas Rappaport, said Friday. She was also sentenced to five years probation, and, along with Dickstein, must repay the stolen money, Rappaport said.
Dickstein and Lynn pleaded "open to the court," according to a district attorney's office spokesman, meaning they rejected a plea bargain offer — which the spokesman would only say included prison time — and left sentencing to the judge's discretion....
San Francisco Unified School District general counsel Maribel Medina said Friday that Dickstein and Lynn have so far repaid $110,000 of the roughly $238,000 stolen from the schools. Medina said she hopes the couple's punishment doesn't end with restitution and that Dickstein winds up incarcerated. A harsher sentence, Medina says, would help deter other potential scam artists. "If you're thinking of stealing from the children of SFUSD, you better think twice," she says. "We're going to catch you and work hard to prosecute you."
Rappaport argues that jail time would be too harsh a sentence. "Even though, currently, we all love to punish white-collar criminals — it's the same reason why people are occupying Wall Street... the fact is, Jonathan has hurt nobody physically," Rappaport says. "When you take money from people, you hurt them indirectly. It's different if you punch somebody in the face and it's different if you sell crack."
Rappaport says the public shaming the couple has been forced to undergo and the damage that Dickstein has suffered to his career is punishment enough. Rappaport argues that, in a way, the school district reaped a windfall because under normal circumstances it would have had to cover at least part of the cost of educating Dickstein and Lynn's son, but instead have received full reimbursement.
October 23, 2011
"When life is too long: Debate over older prisoners"
The title of this post is the headline of this notable new AP article, which includes data and discussion on very lengthy prison terms. Here are excerpts:
Nationally, nearly 10 percent of more than 2.3 million inmates were serving life sentences in 2008, including 41,095 people doing life without parole, up 22 percent in five years, according to The Sentencing Project, which advocates alternatives to prison. The increase resulted from lawmakers "dramatically" expanding the types and repeat offenses that carry potential life terms, research analyst Ashley Nellis said.
"The theme is we're protecting society, then the question is: From what?" said Soffiyah Elijah, executive director of the Correctional Association of New York, a watchdog group. She said with the cost of keeping a state inmate $55,000 a year — a cost that grows as they age and their medical needs increase — a financial analysis shows that parole and probation are far cheaper punishments that can also satisfy the public need for retribution.
Meanwhile, data show new crimes by convicted felons steadily declining from their teens through their dotage. "Most criminal behavior is tied with impulse control. The section of the brain that controls impulse control is the last section of the brain that becomes fully developed," Elijah said. There's a large drop-off in criminal behavior and recidivism after 40 or 45, she said, a point seldom made in public discussion "because it's not convenient. It doesn't dovetail with the kind of tough-on-crime mentality that results in votes."
Patricia Gioia, whose daughter was murdered 26 years ago in California and who runs the Albany chapter of Parents of Murdered Children, said killers should spend their lives locked up, contemplating what they did, the person whose life they took and the lifelong suffering of families and friends. "They should in effect be punished for this and should not enjoy the freedom that other people have to wander the world," she said....
A Stanford University study in September showed the recidivism rate was less than 1 percent among 860 murderers paroled in California since 1995. Five returned to prison for new felonies, none for similar life-term crimes. By contrast, nearly 49 percent of all released California inmates were recommitted for new crimes.
"Not only are most violent crimes committed by people under 30, but even the criminality that continues after that declines drastically after age 40 and even more so after age 50," the study found. In New York, the number of lifers with few prospects for release has grown in the past decade, tracking a national trend and raising a new set of criminal justice policy questions.
"What kind of treatment programs should we be considering for the offenders who have a sentence of life without parole, or enter the system with sentences of 50 years to life?" Commissioner Brian Fischer asked recently on the 40th anniversary of the deadly riots at Attica, another maximum-security prison in New York. Since the state's 1996 sentencing amendments for capital crimes, establishing life without parole for first-degree murder, inmates with that sentence rose from four to 223, with 15 more expected each year, he said.
New York now has more than 800 prisoners who are 65 or older, double the total a decade ago. It has no death penalty, though 34 states and the federal government do. Federal prisons held 3,254 inmates age 66 or older in August, up from 1,326 in 2000. From 1985 to 2006 in New York, 72 prisoners released when they were over 65 were returned for new crimes, less than 5 percent.
Some recent related posts:
- New study says life with parole in California really means, on average, about 20 years
- "Balanced Justice: Cost-Benefit Analysis and Criminal Justice Policy"
- Noting the impact of life sentences on efforts to cut prison costs
Effective review of capital law ineffectiveness in Pennsylvania
Today's Philadelphia Inquirer has this very lengthy review of the copious errors by capital defense attorneys in Pennsylvania. Here is how the piece, which is headlined "In life and death cases, costly mistakes," gets started:
Willie Cooper, convicted of strangling his brother's girlfriend to death in a Germantown apartment, was awaiting a jury's decision on whether he should be sentenced to death, when his lawyer rose to speak on his behalf.
Citing the biblical passage "an eye for an eye," the lawyer told jurors that the ancient edict called for the death penalty only in the killing of a pregnant woman. Cooper had killed a pregnant woman. Inexplicably, his lawyer had forgotten that. The jury voted to impose the death penalty.
Cooper's case is among more than 125 capital murder trials in Pennsylvania --- 69 in Philadelphia alone -- that state and federal appeals courts have reversed or sent back for new hearings because mistakes by defense lawyers deprived the accused of a fair trial. That amounts to nearly one-third of the 391 capital convictions in Pennsylvania since the modern death penalty took effect in 1978.
An Inquirer review of death-penalty appeals spanning three decades found that defense lawyers in these high-stakes cases failed their clients in ways large and small. Lawyers fighting for defendants' very lives often spend little time preparing their cases and put on only the barest defense. They neglect basic steps, such as interviewing defendants, seeking out witnesses, and investigating a defendant's background.
The problem is particularly acute in Philadelphia, where legal experts say the lawyers who handle such cases -- typically at taxpayers' expense because defendants are indigent -- are often overworked and underpaid. Court-appointed lawyers get $2,000 for trial preparation and $400 a day in court to handle cases that a veteran defense attorney said required a minimum outlay of $35,000 to $40,000.
"The number of reversals on these cases is staggering," said Ronald L. Greenblatt, chairman of the Philadelphia chapter of the Pennsylvania Association of Criminal Defense Lawyers. "The attorneys who are doing this work, because of the low pay, are not doing it the right way. We really need it to stop."
The price of replaying such proceedings is costly. Death-penalty appeals consume hundreds of hours of work by dozens of lawyers, judges, police officers, and witnesses, and, even by modest estimates, cost taxpayers hundreds of thousands of dollars.
They take a toll on victims' families, who must revisit painful memories at multiple court hearings and often wait years for justice. And in rare instances, they force defendants to languish on death row, only to later be acquitted.
Former Justice Stevens reviews late Professor Stuntz's "The Collapse of American Criminal Justice"
In the new issue of the The New York Review of Books, Former SCOTUS Justice John Paul Stevens reviews the final book written Professor Bill Stuntz, which is titled "The Collapse of American Criminal Justice." This terrific and lengthy review is headlined "Our ‘Broken System’ of Criminal Justice," and here is how it starts and finishes:
William Stuntz was the popular and well-respected Henry J. Friendly Professor of Law at Harvard University. He finished his manuscript of The Collapse of American Criminal Justice shortly before his untimely death earlier this year. The book is eminently readable and merits careful attention because it accurately describes the twin problems that pervade American criminal justice today — its overall severity and its disparate treatment of African-Americans.
The book contains a wealth of overlooked or forgotten historical data, perceptive commentary on the changes in our administration of criminal justice over the years, and suggestions for improvement. While virtually everything that Professor Stuntz has written is thought-provoking and constructive, I would not characterize the defects in American criminal justice that he describes as a “collapse,” and I found his chapter about “Earl Warren’s Errors” surprisingly unpersuasive.
Rather than focus on particular criminal laws, the book emphasizes the importance of the parts that different decision-makers play in the administration of criminal justice. Stuntz laments the fact that criminal statutes have limited the discretionary power of judges and juries to reach just decisions in individual cases, while the proliferation and breadth of criminal statutes have given prosecutors and the police so much enforcement discretion that they effectively define the law on the street....
Professor Stuntz’s account of the “collapse” of an overgrown system of criminal law enforcement is well worth reading. It is full of interesting historical discussion. It accurately describes the magnitude of the twin injustices in the administration of our criminal law. It should motivate voters and legislators to take action to minimize those injustices.
The publisher's website for Stuntz's book has this summary overview of the book and its themes:
The rule of law has vanished in America’s criminal justice system. Prosecutors now decide whom to punish and how severely. Almost no one accused of a crime will ever face a jury. Inconsistent policing, rampant plea bargaining, overcrowded courtrooms, and ever more draconian sentencing have produced a gigantic prison population, with black citizens the primary defendants and victims of crime. In this passionately argued book, the leading criminal law scholar of his generation looks to history for the roots of these problems — and for their solutions.
The Collapse of American Criminal Justice takes us deep into the dramatic history of American crime — bar fights in nineteenth-century Chicago, New Orleans bordellos, Prohibition, and decades of murderous lynching. Digging into these crimes and the strategies that attempted to control them, Stuntz reveals the costs of abandoning local democratic control. The system has become more centralized, with state legislators and federal judges given increasing power. The liberal Warren Supreme Court’s emphasis on procedures, not equity, joined hands with conservative insistence on severe punishment to create a system that is both harsh and ineffective.
What would get us out of this Kafkaesque world? More trials with local juries; laws that accurately define what prosecutors seek to punish; and an equal protection guarantee like the one that died in the 1870s, to make prosecution and punishment less discriminatory. Above all, Stuntz eloquently argues, Americans need to remember again that criminal punishment is a necessary but terrible tool, to use effectively, and sparingly.