November 5, 2011
"Who Benefits When A Private Prison Comes To Town?"
The title of this post is the headline of this new NPR story run on the program "All Things Considered." Here are excerpts from the written part of the segment:
Federal and state officials are increasingly contracting private companies to run prisons and immigration detention centers. Critics have long questioned the quality of private prisons and the promises of economic benefits where they are built. But proponents say private prisons not only save taxpayers money, but they also generate income for the surrounding community.
In 2004, officials in Hardin, Mont., agreed to a deal for a private prison to be built in town. The idea was that the county would pay for the prison and the state or federal government would fill it. Hardin would get tax revenues, new jobs and economic benefits while a private prison company would run the place and get a cut of the profits.
The Two Rivers Regional Detention Facility, a 464-bed $27 million private prison, was completed in 2007. Since then, the facility has remained empty and unused because the builder never landed a contract with the state or federal government for inmates. In 2009, the facility made national news when, in an attempt to recoup the money it had spent on the facility, the town offered to do something almost no other town in America was willing to do — house prisoners from Guantanamo Bay.
That didn't happen, but it's a testament to how desperate Hardin is to fill the prison, get it up and running, and create jobs for the town....
Despite the criticism private prisons face, as an industry they do very well. They make money, a little for some of the towns where they're built and a lot for shareholders and investors.
"This is an investment that we talk with investors about on a regular basis as a good idea," investment analyst Tobey Sommer tells Sullivan. Sommer, director of equity research at SunTrust Robinson Humphrey in Tennessee, says both CCA and Geo Group made more than $1 billion each last year and their CEOs took home multimillion-dollar bonuses.
The recession could actually make them more money, Sommer says. With budgets stretched thin, states might look to private prisons to house and secure even more inmates. Only 10 percent of all inmates in the U.S. are housed in private prisons, he says, so that other 90 percent could be seen as an opportunity for growth.
But not everyone sees opportunities for long-term growth. "Crime rates are declining, the prison population is declining, and many states, in large part motivated by the economic downturn, are realizing that they can't keep building their way out of the problem," says Michele Deitch, who teaches criminal justice at the Lyndon B. Johnson School of Public Affairs at the University of Texas.
Deitch says the new growth market for prison companies is immigrant detention, like the facility in Karnes County. New prisons, possibly for state inmates, like the one in Hardin, Mont., are on the decline.
Ohio on verge of getting its execution chamber operational again
As detailed in this local Ohio story, headlined "Inmate on Death Row loses two court appeals," it appears that officials have done enough to satisfy judges that Ohio should be able to get back to executions after a mini-moratorium for nearly half the year. Here are the particulars:
Condemned Cleveland killer Reginald Brooks’ bid to avoid execution on Nov. 15 was rejected yesterday by the Ohio Supreme Court and a federal judge. U.S. District Judge Gregory L. Frost denied a motion for a restraining order sought by attorneys for Brooks, 66. However, Frost said he was not ruling one way or the other on the constitutionality of Ohio’s lethal-injection process.
“Ohio has time and again struggled with competence and consistency, and the court remains wary,” Frost said in a decision. However, he said Brooks did not make the case that questions about lethal-injection protocol — which has caused problems in past executions — are sufficient reason to halt his execution.
Later yesterday, the Ohio Supreme Court denied Brooks’ motion seeking to postpone his execution, in part to allow a court-appointed task force to complete its yearlong task of studying the state’s capital-punishment system.
Carlo LoParo, spokesman for the Ohio Department of Rehabilitation and Correction, said the prison agency has “substantially bolstered its training, documentation and quality-review procedures to demonstrate Ohio’s commitment to a humane, dignified and professional implementation of” lethal injections. “Ohio’s revised lethal-injection policy and practices are the most comprehensive in scope and will be the best documented in the nation,” LoParo said.
Brooks was sentenced to death for fatally shooting his three sons, ranging in age from 11 to 17, while they slept in 1982. Two days earlier, his wife had him served with divorce papers. He would be the oldest Ohioan to be executed of the 45 who have been lethally injected since 1999.
"Life Sentence for Possession of Child Pornography Spurs Debate Over Severity"
The title of this post is the headline of this effective New York Times story discussing the remarkable case from Florida first blogged here. Here is how the piece starts:
Does downloading child pornography from the Internet deserve the same criminal punishment as first-degree murder?
A circuit court judge in Florida clearly thinks so: On Thursday, he sentenced Daniel Enrique Guevara Vilca, a 26-year-old stockroom worker whose home computer was found to contain hundreds of pornographic images of children, to life in prison without the possibility of parole.
But the severity of the justice meted out to Mr. Vilca, who had no previous criminal record, has led some criminal justice experts to question whether increasingly harsh penalties delivered in cases involving the viewing of pornography really fit the crime. Had Mr. Vilca actually molested a child, they note, he might well have received a lighter sentence.
November 4, 2011
Are you ready for some football ... Ponzi scheme sentencing news?
With apologies for the weak late Friday headline, here is part of this AP account on a notable long sentence imposed on a Ponzi schemer who bilked a number of notable clients:
The former CEO of a Texas-based investment firm was sentenced to 17 years in prison Friday for a scheme that used former NFL players to bilk hundreds of investors out of more than $50 million.
Several of his victims watched as Kurt Branham Barton, the former head of Triton Financial, gave a tearful apology at the hearing in Austin. "I never intended for any of this to happen," said Barton, 43, as he choked back tears. "I feel terrible about what's happened."
He was convicted in August on 39 counts, including more than a dozen each of wire fraud and money laundering.... Investors including Barton's family and church members thought their money was for real estate deals and business loans. Prosecutors say Barton spent much of the money on himself, using it to pay for such things as a luxury box at University of Texas football games and a $150,000 car.
Former NFL quarterback Ty Detmer testified during the trial that he considered Barton a close friend and lost most of this life savings, about $2 million. Other athletes who prosecutors said promoted or invested with Triton were Heisman Trophy winner Earl Campbell, former NFL quarterback Jeff Blake and NFL kicker David Akers. Akers said he lost more than $3 million. None of the athletes were accused of wrongdoing.
The Ponzi scheme bilked more than 300 investors over four years before ending in December 2009, prosecutors said. He was able to raise about $75 million from investors, only about $20 million of which went to legitimate business purposes, prosecutors said. Many of the investors lost their retirement savings in the scheme.
"He took my money for his fun ... and didn't do what he told me he was going to do," said Charles Dickens, one of Barton's investors. He said victims "wanted to just get by a little better, try to improve our lot. Now it's all gone."
Attorney Rip Collins said Barton was trying to run a legitimate yet mismanaged business and believed it could be turned around.... Speaking to U.S. District Judge Sam Sparks, Kurt Barton's father, Chuck Barton, said it had been "one of the most horrifying experiences of our life."...
Many of Barton's friends and family submitted letters in support, insisting to the court that Barton is a good father and upstanding citizen — not the vicious predator prosecutors had described.
One was from former Dallas Cowboy Tony Dorsett, who called Barton a friend and an "honest, hard-working, God-fearing family man that cares about people and community."
I know that people losing their life savings to a fraud is no laughing matter, nor is the sentencing of even a scoundral to nearly two decades in prison. Nevertheless, on a Friday afternoon before a big football weekend, I cannot help but want to encourage some readers to suggest fitting or funny headlines for the story of a man who robbed from the likes of Ty Detmer, Earl Campbell, and Jeff Blake. Also, the fact that one of the victims who testified at sentencing was named Charles Dickens(!?!) surely is a sign that this busy week should be concluded with some punny comments on this story.
"Presidential candidate to Obama: end drug war & pardon jailed marijuana users"
The title of this post is the headline of this press report on a speech given yesterday by GOP candidate Gary Johnson in California. Here is how the piece starts:
Citing growing public support for the legalization of marijuana and the costs of enforcing current marijuana laws, former New Mexico Governor Gary Johnson told a conference of the Drug Policy Alliance (DPA) Thursday that, as President, he would act immediately to remove cannabis from the classification under the Controlled Substances Act which makes it illegal under federal law. Johnson also pledged to expedite pardons for those convicted of non-violent marijuana offenses.
Speaking to the DPA in Los Angeles Thursday morning, Johnson said, “Polls show that at least half the American people today have come to the same conclusion I came to as Governor of New Mexico: That the prohibition of marijuana in this country makes no more sense than the last Prohibition did. Alcohol Prohibition in the last century accomplished nothing but the creation of Al Capone and amazing profits for organized crime. Today’s continuing prohibition of marijuana is accomplishing nothing but amazing profits for the cartels who are killing people by the thousands along our southern border.
“The President and the Attorney General have it within their power to end this madness by removing cannabis from Schedule I of the Controlled Substances Act and allowing it to be treated like alcohol and tobacco. President Obama has said a lot lately about having to bypass Congress to accomplish his agenda. While I’m not enthused about most of what he is trying to do administratively, I would strongly suggest that reclassifying marijuana to reflect common sense is one executive action the President should take. And if elected, I would direct the Attorney General to immediately commence the process for removing marijuana from Schedule I of the CSA.”
Johnson added, “Obviously, ‘rescheduling’ marijuana would not, with the stroke of a pen, undo 50 sets of state law. It would, however, remove the faulty justification for federal laws which make recreational and medicinal marijuana use criminal. I also recognize that some in Congress might very well try to ‘recriminalize’ marijuana if I changed its classification administratively. Whether they succeeded or not, at least we would finally have the debate we need to have.
“Each year, 700,000 people are arrested for marijuana possession. Those are 700,000 people who now have a record, for whose prosecution we have paid, and whose cases are clogging up our courts and law enforcement agencies – for no logical reason. Since 1970, almost 20 million Americans have been arrested for marijuana offenses, with the vast majority arrested for simple possession. After several decades, can anyone honestly say that our country is a better place as a result of having labeled those 20 million people as criminals? “
Notable USSC compilation of federal guideline departure provisions
Earlier this week, the US Sentencing Commission published this interesting new 18-page document which compiles all the provisions within the federal sentencing guidelines concerning departures. Here is how the document is described:
This compilation identifies provisions in the Guidelines Manual that indicate when a departure based on a specific ground may be warranted.
The compilation identifies the guideline provision and specifies the ground for departure contained in that provision. The ground for departure is printed in bold type if it involves a downward departure and italic type if it involves an upward departure. (Where the ground for departure could involve either an upward departure or a downward departure, depending on the circumstances, the ground for departure is printed in normal, roman type.)
By my very rough count, this document list nearly 40 guideline provisions that involve downward departures, but about three times as many guideline provisions involve upward departures.
November 3, 2011
Florida defendant gets LWOP sentence for mere possession of (lots of) kiddie porn
The lengthy sentences sometimes given to downloaders of child pornography in federal court often are much longer than those handed out for this crime in state courts. However, as detailed in this local piece from Florida, headlined "East Naples man sentenced to life in prison for child porn," some state sentences for child porn possession are even more extreme than federal law provides:
An East Naples man was sentenced to life in prison Thursday following his conviction last month in one of the county’s largest child pornography cases. The sentencing of Daniel Enrique Guevara Vilca, 26, came after a six-person jury found him guilty Oct. 6 on 454 counts of possessing child pornography. Collier County sheriff’s investigators seized a computer from Guevara Vilca’s Landover Court apartment in January 2010 and found about 300 sexually explicit pictures containing children and 38 hours of taped child pornography.
Guevara Vilca faced more than 300 years in prison. The minimum sentence under a state score sheet was 152 years in prison. Guevara Vilca turned down a 25-year plea agreement before trial....
The sentence is the most severe in county history for a child pornography possession case. In 2009, Naples resident Douglas Deering received a 25-year sentence as part of a plea deal on 197 child pornography possession counts.
This companion piece, headlined "East Naples man's life sentence for child porn too harsh, attorney says," reports that the defendant's attorney will challenge the constitutionality of this sentence on appeal:
His defense lawyer, Lee Hollander, argues that others in Collier County have committed crimes more serious and violent, yet received lesser punishment than Guevara Vilca, who had no prior criminal record.... “People who are actually creating child porn or molesting children are getting lighter sentences than people who are in possession of it,” Hollander said. “The guy is doing life in prison for looking at child porn. I’m sorry, but that just doesn’t compute.”
Less sympathetic Thursday was Assistant State Attorney Steve Maresca. He said it was “offensive” to claim possession of child porn is a nonviolent crime, adding that consumers such as Guevara Vilca keep alive a market for children to be sexually abused. “I think (the sentence) sends a message that this is a serious crime,” Maresca said. “This is a crime that continues on and on. Those images are there forever, which means some of those children have to deal with it forever.”
[Collier Circuit Judge Fred] Hardt had little choice but to follow state law in putting Guevara Vilca behind bars for life. A sentencing score sheet required a minimum sentence of about 152 years in prison — a far cry from the 25-year plea agreement Guevara Vilca rejected before the trial. The number and severity of the charges allowed Hardt to impose a life sentence under state law.
Hardt reviewed several factors that could have allowed him to depart from the minimum guideline, including the defendant’s mental health history and the constitutionality of the sentence. He found no reason to impose a lighter sentence. “The fact that this court might — and I’m not saying it does — believe that this sentence is disproportionate is not valid grounds for departure,” Hardt said.
Hollander said he plans to appeal the sentence, calling it a cruel and unusual punishment that violates the Eighth Amendment of the Constitution.
The principle of his claim — that a child porn consumer shouldn’t receive a life sentence when child sex abusers often receive lighter punishments — drew debate Thursday from state law professors.
“That argument can be made,” said Bob Dekle, a University of Florida law professor who spent about 15 years prosecuting sex crimes in northern Florida. “How good it is and how persuasive is another question. I don’t find it very persuasive.”...
Tamara Rice Lave, an associate law professor at the University of Miami with expertise in sex offender laws, suggested a life sentence for child pornography possession is excessive. “I don’t think somebody should get life in prison for possessing child pornography that they didn’t produce,” Lave said. “I don’t think it should be the same as somebody who commits first-degree murder or a string of violent crimes. Part of what the justice system needs to do is punish proportionally.”
Hollander said his appeal of the sentence “probably is going to end up in front of the Florida Supreme Court in some shape or form.”
Early press reports on the new 21-member Ohio Death Penalty Task Force
As I suggested in this prior post, I do not plan to blog too much about the work I am now starting to do as a member of the new 21-member Joint Task Force to Review the Administration of Ohio’s Death Penalty. But, in part because our meetings are public meetings and are likely to generate some press coverage, I will make an effort to blog about others' reports on the work of the Task Force. And, with the first meeting having taken place today, I can now report and link these effective press reports:
From the AP here, "Judge concerned by fairness of Ohio death penalty"
From the Columbus Dispatch here, "Task force questions when prosecutors should pursue capital punishment"
"The Right Not to Keep or Bear Arms"
The title of this post is the title of this terrifically-interesting new paper on SSRN by Professor Joseph Blocher. Here is the abstract:
Sometimes a constitutional right to do a particular thing is accompanied by a right not to do that thing. The First Amendment, for example, guarantees both the right to speak and the right not to speak. This Article asks whether the Second Amendment should likewise be read to encompass both the right to keep or bear arms for self-defense and the inverse right to protect oneself by avoiding them, and what practical implications, if any, the latter right would have.
The Article concludes -- albeit with some important qualifications -- that a right not to keep or bear arms is implied by what the Supreme Court has called the “core” and “central component” of the Second Amendment: self-defense, especially in the home. Recognizing such a right might call into question the constitutionality of the growing number of “antigun control” laws that make it difficult or illegal for private individuals to avoid having guns in their actual or constructive possession.
California lethal injection litigation now unlikely to be resolved until 2013!?!
This new little AP article, headlined "Cal's death penalty ban likely to extend into 2013," spotlights that the lawyers involved in the seemingly-never-ending battle over California's execution protocol are now on an even slower pace than before:
The moratorium on California's death penalty will likely extend into 2013. Government lawyers on Wednesday agreed to resume their court battle with inmate lawyers no earlier than September, which will push back any scheduled executions into 2013 because of the time it takes a judge to rule and the expected appeals by the losers.
A federal judge halted executions nearly six years ago after finding flaws in California's executions process. Prison officials have since revised their procedures, which death row inmates allege are still flawed and exposing them to cruel and unusual punishment.
Another judge in Marin County is scheduled to hear arguments Friday over whether prison officials followed proper procedures in revising the lethal injection process. There are 720 inmates on California's death row.
What has been going on in California in its lethal injection litigation serves as a great demonstration of the converse of the slogan "Where there is a will, there is a way." In California, there clearly is little or no will on the part of government lawyers or other state officials to get back in the execution business, and thus the state is unable to find a way to get its death chamber operational again. (Indeed, I would not be surprised if a number of state lawyers and officials are hoping that California's voters abolish the death penalty via referendum just so they no longer have to figure out how and when to executed the huge number of condemned persons on the state's death row.)
A few more recent related posts:
- "California's idea of the death penalty is to bore them to death"
- California gives up trying to get executions started until at least 2012
- Could California have lots of executions once its death machinery is operational again?
- Gearing up for "The Next Death Penalty Battleground" in California
"Changed crack sentencing rules leave a justice system in flux"
The title of this post is the headline of this effective article in today's Minneapolis Star Tribune which provides an in-depth review of all the challenges posed by the implementation of the new reduced federal sentencing guidelines for crack. Here are excerpts:
Carlos Lamont Cleveland, 39, was jailed in 1995 on charges that he was the "right-hand man to the leader of a large and violent drug-trafficking organization" that distributed crack cocaine in Minnesota. But his sister stood by him as he kept challenging his 300-month sentence. This week, she got the news from her brother she had been waiting for: Cleveland would be returning home on Friday.
New sentencing rules that took effect on Tuesday made Cleveland one of more than 1,800 prisoners eligible for release right away, federal officials said. Creature comforts of a full-size bed, a freshly painted room and a bouquet of welcome-home balloons will await him in his hometown of Detroit....
Nationwide, more than 500 people were released from custody on Tuesday, the Federal Bureau of Prisons said. In Minnesota, the change in the guidelines will mean an early release for 100 to 150 inmates who were convicted of crack cocaine crimes. The change is eventually expected to benefit 12,000 U.S. inmates, reducing sentences by an average of three years....
For the past few months, U.S. probation officers, federal defenders and federal prosecutors in Minnesota have been combing through hundreds of court files in an effort to find inmates who may be eligible for release under the new retroactive sentencing rules....
Hundreds of files fill a space in the federal public defender's office that they jokingly call the "crack room," Roe said. At least two lawyers review each file. "The last thing we want to do is miss somebody," she said.
So far, they've found 21 candidates for "immediate release," Roe said. But the number is still in flux. The U.S. attorney's office said it has identified 28 potential candidates for immediate release; the Probation Office said it might be somewhat fewer than that.
So far, orders have been signed for just four that reduced their sentences to time served. In addition to Cleveland, who got a 29- month reduction, they include Paris Lamar Wilson, sentenced in 1997 on charges of conspiracy to distribute crack cocaine, possession and use of a firearm related to drug trafficking; Bobby Woods, sentenced in 2001 on charges of conspiracy and possession of cocaine base, and Steven Mitchell Gant, who pleaded guilty in 2008 to charges of conspiracy and possession of cocaine base, cocaine and ecstasy.
The orders give the Bureau of Prisons 10 days to release the inmates. Jeanne Cooney, a spokeswoman for the U.S. attorney's office in Minnesota, said under the law, the bureau gets time to notify victims in some cases or even local law enforcement. The offenders will remain subject to post- prison "supervised release" even if, in effect, they served excess time under the new guidelines.
Some of the inmates affected by the changes have been imprisoned long after the time they would've been released had the new rules been in place when they were originally sentenced, Roe said. Two are already under electronic monitoring in their homes. Others are in half-way houses because they were already transitioning back into society as they neared the end of their original sentence.
Chief U.S. Probation Officer Kevin Lowry said some inmates who were released early after the first guidelines change experienced "a little bit of culture shock" at their sudden release. "Some did indicate that they had anxiety about being back in the community sooner than they expected," he said. Kerns said probation officers worked hard then and are working hard now to connect the outgoing offenders with social services to ensure they have a place to stay, as well as educational and employment opportunities. "That's what we'll continue to focus on, successful re-entry into the community and helping these folks turn back into successful, law abiding lifestyles," he said.
If you ever wonder why some have little understanding or respect for the criminal justice system...
then this headline of this article reporting on Lindsay Lohan's experience yesterday with the California justice system sums it up well: "Lindsay Lohan to serve 30 days in jail AFTER finishing $1m Playboy shoot (but could spend just minutes behind bars due to overcrowding)."
November 2, 2011
"Stanford law professors submit proposed initiative to limit Three Strikes Law"
The title of this post is the headline of this new piece out of California. Here is how the piece starts:
An effort to limit California's tough Three Strikes Law is gaining momentum, with a proposed ballot initiative that would reserve the toughest penalty -- 25 years to life -- for the baddest of the bad, including murderers, rapists and child molesters.
The initiative, now under state legal review, was carefully crafted by a group of Stanford University law professors and stops far short of the extensive changes proposed under a previous reform measure that narrowly failed in 2004.
The Legislature and voters passed the Three Strikes Law in 1994 after several high-profile murders committed by ex-felons sparked public outrage, including the kidnapping from her Petaluma home and strangling of 12-year-old Polly Klaas. Since then, the courts have sent more than 80,000 "second-strikers" and 7,500 "third-strikers" to state prison, according to the state Legislative Analyst's Office.
Though third-strikers make up just 6 percent of the prison population, they are responsible for a disproportionate share of the state's spiraling prison health care costs -- at least $100 million annually -- as they age and need more medical attention, according to the California auditor.
The previous measure, Proposition 66, sought to restrict felonies that trigger a "third" strike to violent or serious crimes. Under the existing law, life sentences have been issued for such relatively minor crimes as stealing a pair of socks, attempting to break into a soup kitchen to get something to eat and forging a check for $146 at Nordstrom.
In contrast, the new initiative allows certain hard-core criminals, including murderers, rapists and child molesters, to be put away for life for any felony, including shoplifting, while restricting the third strike to a serious or violent felony for everyone else. "We're making absolutely sure that these (hard-core) criminals get no benefit whatsoever from the reform, no matter what third strike they commit," said Dan Newman, a spokesman for the campaign.
New proposal in Chicago to decriminalize marijuana to save money
This new Reuters article, which is headlined "Chicago aldermen back marijuana decriminalization proposal," reports on the latest criminal justice reform effort driven by tight budget times:
A group of Chicago aldermen plan to introduce an ordinance at a Wednesday city council meeting that would decriminalize possessing small amounts of marijuana. Supporters say the measure would help raise revenue for the city, save money and free up police to pursue more serious crimes.
Cook County Commissioner John Fritchey said the city's 23,000 annual arrests for small amounts of marijuana cost the county $80 million a year, even though 90 percent of the cases are thrown out. "At a time when the city is searching for ways to maximize the resources of the police, it doesn't make sense to lose 80,000 man-hours a year for cases that are being dismissed," Fritchey said.
If the plan passes, people caught in Chicago with 10 grams or less of marijuana would get a $200 ticket, instead of facing a misdemeanor charge punishable by up to six months in prison.
Fourteen states and some U.S. municipalities, including Seattle, Washington, have already decriminalized possession of small amounts of marijuana, according to Allen St. Pierre, executive director of NORML, a lobbying group working to legalize the drug....
Opponents of decriminalization believe it normalizes drug use, said Amy Ronshausen, manager of congressional and legislative affairs for the Drug Free America Foundation. "If you're normalizing drug use, it means users are going to use it more," said Ronshausen. "It's not as harmless as the pro-drug lobby would have you believe."...
Chicago Mayor Rahm Emanuel was not immediately available for comment regarding the decriminalization proposal. Chicago Alderman Proco "Joe" Moreno, a supporter of the proposed ordinance, said in a Huffington Post editorial that anti-marijuana laws are used against minorities in Chicago more than whites, though whites use the drug as much as African-Americans and Latinos.
State mandatory minimum requires Oregon faith-healing parents to serve long term for manslaughter
Though I am still working my way through the important new US Sentencing Commission report on mandatory minimum sentences, this local article from Oregon is a reminder that many states have notable mandatory minimum sentencing rules that apply in many notable settings. Here are the details of this sad, yet interesting, state mandatory minimum sentencing tale:
A Clackamas County judge stunned a courtroom packed with supporters of Dale and Shannon Hickman Monday when he sentenced the couple, members of an Oregon City faith-healing church, to prison for six years and three months.
The Hickmans received the mandatory minimum prison term under Measure 11 sentencing guidelines, even though defense attorneys argued that their clients qualified for little or no prison time. Once released, they will be on post-prison supervision for three years.
"This is a sentence you have justly earned," said Presiding Judge Robert D. Herndon. He called incarceration "a modest penalty for causing the death of a vulnerable person. ... This was so preventable."
After Herndon left the courtroom, about 100 church members remained, sullen and many sobbing, as deputies handcuffed the Hickmans and led them away.
The Hickmans were convicted of second-degree manslaughter in September for failing to seek medical care for their son David, who was born two months prematurely and lived less than nine hours. An autopsy found he had staph pneumonia and underdeveloped lungs. Pediatric experts testified that the baby almost certainly would have survived if he had been taken to a hospital. The Hickmans sought no medical intervention even as the baby turned gray and struggled to breathe.
Under Oregon law in effect when the baby died in 2009, defense attorneys maintained that the Hickmans were eligible for a lesser sentence available to those who rely on spiritual treatment. The Legislature eliminated the exemption this year -- motivated by the long history of child deaths among the Followers – and the Hickmans will be the last Oregonians to attempt to benefit from the old law. Under the law in effect at the time of the crime, Herndon needed "substantial and compelling reasons" to depart from the sentencing guidelines, and he did not see any.
Had the Hickmans conceded at trial that David was sick -- but not gravely ill -- and that they relied on faith-healing rituals to cure him, they might have fared differently at sentencing. But instead of invoking a religious defense, the Hickmans said they saw no reason to call 9-1-1 or seek medical assistance because there was nothing wrong with their son, even as he grew weaker and died. "As the evidence unfolded and the witnesses testified, it became evident to me and certainly to the jury that this death just simply did not need to occur," said Herndon, noting that the jury reached a unanimous verdict in a "stunningly" short time.
Defense attorneys Mark Cogan and John Neidig urged Herndon to give the couple probation, assuring Herndon that the parents would take their children to the doctor and get training to help them determine when a child needs a doctor's care.
Shannon Hickman tearfully appealed for Herndon to not separate her from her two children, a 7-year-old daughter and an infant son. Dale Hickman, emotional but composed, asked the judge to "find in your heart mercy for my wife and above all else, our children."...
Prosecutor Mike Regan said the sentence sends a message to the church. The Followers are not fundamentally different from a black-robed pagan group that sacrifices a sick child in the dead of night, Regan told the court. In the Followers, "we have a religious group sacrificing children's lives, year after year, decade after decade," he said. "We have to do something."
November 1, 2011
Any advice for one member of the new 21-member Ohio Death Penalty Task Force?
As detailed in this official press release, Ohio has a new task force whose task is to review the state's death penalty and I have the honor of being one of 21 formal members of this force. Here are the basics as reported in the press release:
In a cooperative effort between the Supreme Court of Ohio and the Ohio State Bar Association, the Joint Task Force to Review the Administration of Ohio’s Death Penalty will meet for the first time Nov. 3.
The group of 21 judges, prosecuting and defense attorneys, and lawmakers will hold its first working session from 10 a.m. to 2 p.m. at the Ohio State Bar Association (OSBA), 1700 Lake Shore Drive, in Columbus.
Chief Justice Maureen O’Connor announced the formation of the Joint Task Force during the annual State of Judiciary in September.
During Thursday’s meeting, the task force will conduct a thorough review of capital punishment to ensure that Ohio’s death penalty is administered in the most fair and judicious manner possible. Members will examine the death penalty process and study current laws on the death penalty and procedures other states across the country use.
“The Joint Task Force will examine the current laws on the subject and the practices in other jurisdictions. It will review and identify areas in need of action and recommend the course of action,” Chief Justice O’Connor said. “The task force will not decide whether Ohio should or should not have the death penalty. It will not be on the table for discussion.”
“Our goal is to take a careful review of the administration of capital punishment in Ohio to ensure fairness in its application,” OSBA President Carol Seubert Marx said.
Once the task force develops a comprehensive set of recommendations over the course of several meetings, members will give their proposals next year to the state for consideration.
The Joint Task Force is chaired by the retired Hon. James A. Brogan of the Second District Court of Appeals in Dayton.
I am honored to have been asked to serve as a member of the Joint Task Force to Review the Administration of Ohio’s Death Penalty (and I am committed to making sure I do not make anyone sorry that they invited me to be a member of this Ohio DP Task Force). I am not yet sure if I will be able to or should be eager to blog about the public aspects of my service on this Task Force, but I am sure I would love to hear suggestions from readers about how best to serve this force.
A must-listen: NPR segment with researcher David Kennedy discussing violent crime
For lots of reasons, I urge everyone concerned about violent crime and punishment to find the time to listen to this lengthy NPR segment from the Fresh Air program. The piece is an extended interview with criminologist David Kennedy, which discusses some of his research and work discussed in his new book titled "Don't Shoot: One Man, A Street Fellowship, And The End of Violence in Inner-City America." Here are snippets from the written NPR segment to whet the appetite:
In 1985, David M. Kennedy visited Nickerson Gardens, a public housing complex in south-central Los Angeles. It was the beginning of the crack epidemic, and Nickerson Gardens was located in what was then one of the most dangerous neighborhoods in America.
"It was like watching time-lapse photography of the end of the world," he says. "There were drug crews on the corner, there were crack monsters and heroin addicts wandering around. ... It was fantastically, almost-impossibly-to-take-in awful."
Kennedy, a self-taught criminologist, had a visceral reaction to Nickerson Gardens. In his memoir Don't Shoot, he writes that he thought: "This is not OK. People should not have to live like this. This is wrong. Somebody needs to do something."
Kennedy has devoted his career to reducing gang and drug-related inner-city violence. He started going to drug markets all over the United States, met with police officials and attorney generals, and developed a program — first piloted in Boston — that dramatically reduced youth homicide rates by as much as 66 percent. That program, nicknamed the "Boston Miracle," has been implemented in more than 70 cities nationwide.
Today, Kennedy directs the Center for Crime Prevention and Control at John Jay College of Criminal Justice in New York City, but he still regularly goes out into the field. The drug world he works in now, he says, is a little better than the one in which he worked in 1985 — but not by much.
"Still, it's almost inconceivably awful in almost all of its dimensions," he tells Fresh Air's Dave Davies. "And no one likes to say this stuff out loud, because it's impolitic, but the facts are the facts. You get this kind of drug activity and violence only in historically distressed, minority neighborhoods. And it is far worse in poor, distressed African-American neighborhoods."
Those neighborhoods are also more likely to be deadly for African-American men — and they're getting worse, says Kennedy, citing grim statistics: Between 2000 and 2007, the gun homicide rate for black men between the ages of 14-17 increased by 40 percent. The rate for men over the age of 25 increased by 27 percent. In some neighborhoods, 1 in 200 black men are murdered every year....
But there are plenty of law-abiding residents in these neighborhoods that have been overtaken by drugs, says Kennedy. They outnumber the gang members and drug dealers by significant percentages. "What matters is that these offenders are in the communities in groups," he says. "They are in gangs, they are in drug crews, they are in chaotic groups. And those groups drive the action to a shocking degree."
In Cincinnati, for example, there are about 60 defined gang groups with about 1,500 members. "[The people] representing less than half a percentage point of the city's population are associated with 75 percent of all of Cincinnati's killings," he says. "And no matter where you go, that's the fact."
The national homicide rate is now about 4 per 100,000, but the homicide rate for members of gangs and neighborhood turf groups is dramatically higher: as many as 3,000 per 100,000 a year....
Kennedy's homicide-reduction program, called Operation Ceasefire, brought gang members into meetings with community members they respected, social services representatives who could help them, and law enforcement officials who told them that they didn't want to make arrests — they wanted the gang members to stay alive, and that they planned to aggressively target people who retaliated. The interventions worked to reduce the homicide rates.
"Sentencing Guidelines for Crack Cocaine Offenses Are Now Officially Less Appalling"
The title of this post comes from the fitting headline from this Reason entry, which summarizes today's major federal sentencing news with the fulsome (and fitting?) dose of cynicism:
For all the disappointment (or just low expectations confirmed) about the Obama administration and the drug war, especially with the current crack-downs on medical marijuana, it's nice to remember the one damn thing Obama has done on this front in his three years: reduce the harsh sentencing disparity of crack cocaine offenses compared with powder.
These guidelines, passed in June, are about to officially do some good for those already in jail -- hopefully.
Up to 1,800 inmates are immediately eligible to go free and prison officials are processing a growing number of release orders, said Chris Burke, a spokesman for the U.S. Federal Bureau of Prisons. "The pace has picked up in the last couple of weeks and we don't expect it to abate any time soon," he said.
The U.S. Sentencing Commission estimated this summer that about 12,000 inmates could be eligible to seek a reduced sentence, with the impact spread over decades. The average reduction in sentence would be 37 months.
People suffering three fewer years behind bars certainly is a cause for celebration. And the reduction of sentencing minimums for crack -- which, for example, treated 5 grams of crack the same as 500 grams of cocaine -- is decades overdue.
But don't get to optimistic about Obama. Crack is still worth 18 times what powder cocaine is, for some reason.
And none of these folks are out yet. There's still many exciting bureaucratic hoops to jump through before Hamedah Hasan and others get their lives back. The drug war continues, and the Obama White House isn't particularly interested in letting anyone's youthful experiments with substances -- besides the president's -- slide.
What might SCOTUS be doing with long-held cases involving 14-year-olds serving LWOP?
At SCOTUSblog, John Elwood does amazing work keeping up with the cases that the US Supreme Court is keeping in its midst for an unusually long time through his periodic post labelled "Relist (and Hold) Watch." And, in this latest installment, he notes that these two post-Graham challenges to LWOP sentences for 14-year-old murderers have now be relisted a fourth time:
Miller v. Alabama (relisted after the 9/26, 10/7, 10/14, and 10/28 Conferences)
Issue(s): Whether imposing a sentence of life without possibility of parole on an offender who was fourteen at the time he committed capital murder constitutes cruel and unusual punishment in violation of the Eighth Amendment.
Certiorari stage documents:
- Opinion below (Ala. Ct. Crim. App.)
- Petition for certiorari
- Brief in opposition
- Petitioner’s reply
Jackson v. Hobbs (relisted after the 9/26, 10/7, 10/14, and 10/28 Conferences)
Issue(s): Whether imposing a sentence of life without possibility of parole on an offender who was fourteen at the time he committed capital murder constitutes cruel and unusual punishment in violation of the Eighth Amendment.
Certiorari stage documents:
As Jon Elwood repeatedly explains, "if a case has been relisted once, it generally means the Court is paying close attention, increasing the chance of a grant. But once a case has been relisted more than twice, it is generally no longer a likely candidate for plenary review, and is more likely to result in a summary reversal or a dissent from the denial of cert." Neither Miller nor Jackson would be suitable for summary reversal, so I think the smart money is on one or more Justices putting together a dissent from the denial of cert (and perhaps also one or more Justices putting together a concurrence from the denial of cert). Of course, we are all just speculating here, but I think maybe some readers would like to be involved in this SCOTUS post-Graham Eighth Amendment speculation.
SCOTUS two for Tuesday dealing with civil liability in criminal contexts
As previously noted in this week in preview, this morning the US Supreme Court will hear arguments in Rehberg v. Paulk and Minneci v. Pollard, cases dealing with the potential limits on civil liability for prosecutors and and private prison operators. Neither case deals directly with sentencing, obviously, both both cases could have a consequential impact on actors involved with sentencing systems.
Though I have a variety of views on the pros and cons of tort liability for various criminal justice participants, I have long been troubled by court-created categorical limits on such liability. I think all tort liability should be subject to narrow and nuanced rules and I think most of these rules ought to be developed initially by legislatures and executive officials (with some subsequent common-law development in the courts). I often worry that too much modern tort immunity doctrines for criminal justice participants is created by judicial fiat. The oral arguments today may showcase in Rehberg v. Paulk and Minneci v. Pollard how some of the newer justices view some of these issues.
"Marijuana: An Answer From The White House"
The title of this post is the headline of this interesting new entry at the WSJ Law Blog. Here are excerpts:
So, the legalize-marijuana crowd finally got a thoughtful answer from the White House — but not one it wanted.
After being ignored or quickly dismissed on multiple occasions, Americans who want to see marijuana legalized found a way to get the White House to take their question seriously. The White House “We the People” project lets anyone submit a petition requesting government action. If the petition gets enough signatures, the White House promises a policy response.
A petition calling for legalization and regulation of marijuana “in a matter similar to alcohol” quickly vaulted into the top position, receiving nearly 75,000 signatures. Four others making similar requests were in the top 10. A total of eight marijuana-related petitions each received more than 5,000 signatures. It turns out that the White House still does not support pot legalization....
Gil Kerlikowske, director of the White House Office of National Drug Control Policy, offered the official White House response on marijuana, saying the administration does not support legalization. He said that research finds that marijuana is associated with addiction, respiratory disease and cognitive impairment and that pot is ever more potent, possibly affecting still-developing brains of people in their 20s. He went on to say that the White House drug control strategy is “balanced and comprehensive, emphasizing prevention and treatment” and “innovative law enforcement.”
Allen St. Pierre, executive director of NORML, which advocates for marijuana legalization and which organized at least one of these petitions, said he was not surprised by the response but said it’s “hard not to be disappointed that the White House solicits–consistently–the views of the general public about specific policy changes via the Internet, and with the same consistency completely rejects the public’s ever-growing wont to see Cannabis Prohibition end in our lifetimes.”
Sadly, from my perspective, I expect this is one (and only?) policy and statement coming from the Obama White House that will be immune from criticism by most of the GOP candidates (save Gary Johnson, perhaps) eager to be the next resident of the White House.
Might there be reason to praise "Lifelong Death Sentences"?
The question in the title of this post is prompted by this new Sidebar piece by Adam Liptak in the New York Times, which is headlined simply "Lifelong Death Sentences." Here are excerpts from a the piece:
In 1978, when he was 27, Manuel Valle killed a police officer in Coral Gables, Fla. In September, when he was 61, Mr. Valle was put to death for his crime. A couple of hours earlier, the Supreme Court had refused to stay his execution — with one dissent. Justice Stephen G. Breyer wrote that the 33 years Mr. Valle had spent on death row amounted to cruel and unusual punishment.
That line of reasoning strikes some supporters of the death penalty as perverse. “It is a very strange argument to say that a murderer can delay justice with protracted appeals for decades and then turn around and claim his own delay as a reason to escape his deserved punishment altogether,” said Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation.
But Justice Breyer’s approach has historical support, and it is in line with international opinion. “Our Constitution was written at a time when delay between sentencing and execution could be measured in days or weeks, not decades,” Justice Breyer wrote in another dissent on the same subject, this one in 1999. English law in the 18th century called for executions to take place on “the next day but one” after sentencing.
Foreign courts have ruled that living for decades under the threat of imminent execution is a form of psychological torment. “There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years,” the Judicial Committee of the Privy Council, which is based in London and hears appeals from former British colonies, wrote in a 1993 ruling in favor of two inmates who had spent more than five years on death row in Jamaica, commuting their sentences to life in prison.
Similarly, the European Court of Human Rights in 1989 ruled that extended periods on death row violated the provision of the European Convention of Human Rights that bars torture or “inhuman or degrading treatment or punishment.”...
Justice Clarence Thomas has said he is not impressed by these international rulings. “I am unaware,” he wrote in response to Justice Breyer’s 1999 dissent, “of any support in the American constitutional tradition or in this court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.”
That seeming contradiction misses a larger point, Justice Breyer wrote in his dissent in the Valle case. A capital justice system that cannot be administered without long delays, he said, points to “the difficulty of reconciling the imposition of the death penalty as currently administered with procedures necessary to assure that the wrong person is not executed.”
Here is what is clear: the average prisoner on death row has spent 13 years there, and his odds of growing old in prison are pretty good. About 3,300 inmates are on death row in the United States. Last year, there were 46 executions....
A system that takes 33 years to issue a final decision about whether a defendant should live or die would seem to be broken. “The incentives driving the nation’s process of imposing and reviewing death sentences,” Professor [Jim] Liebman wrote, “are skewed from stem to stern.”
I agree with Professor Liebman that the incentives driving the current system of capital punishment are skewed toward having many more death sentences than actual executions, but I am not sure that this reality — or the fact that most death row defendants in states other than Texas and Virginia are very likely to spend at least 15 years or more before seriously facing execution — means our system is "broken." In fact, given the strong affinity some have for LWOP sentences instead of death sentence AND the reality that the public and sometimes prosecutors and victims are more concerned about the normative symbolism of death sentences rather than the stark reality of executions, one might be able to plausibly assert that "lifelong death sentences" achieve the best of all possible capital punishment worlds.
For starters, I assume the juve and mentally-retarded murderers whose death sentences were finally deemed unconstitutional in Roper and Atkins were glad that a slow review process kept them alive until their sentences were ultimately ruled unconstitutional. Same obviously goes for wrongly convicted death row inmates who have been sure to have ample time to prove their innocence. And though some victims and prosecutors complain about protracted capital case review, some other victims and prosecutors acknowledge that new facts emerge during this lengthy process which impact their views on the appropriateness and value of the original death sentence.
I am not really asserting that the modern administration of the death penalty in the US is truly ideal and truly the best of all possible capital punishment worlds. But I also do not mean to completely mock the possibility of taking a Dr. Pangloss view of the lengthy period between death sentences and execution in most states: though there are obvious costs from these delays, there are also some benefits that ought not be ignored or completely discounted.
States reworking property crimes to reduce prison costs
This recent USA Today article, headlined "Some states rethink felony property crimes," highlights that it is not only low-level drug offenses getting revised to cope with excessive prison costs. Here is how the piece begins:
More than half a dozen states are reclassifying a range of property crimes from felonies to misdemeanors, a change that could spare prison terms for minor offenses and save states jail and prosecution costs.
The changes increase the threshold dollar amounts for crimes such as check kiting, theft and criminal mischief. California, Delaware, Illinois, Montana, Oregon and Washington, among others, have amended their criminal codes in the past two years, aimed partly at deferring hundreds of offenders from costly prison and jail sentences.
State officials and criminal justice analysts said budget crises have forced state lawmakers, sometimes at political risk, to enact less punitive measures for criminal offenders. "Clearly one of the motivating factors is cost," said Alison Shames, associate director of the Center on Sentencing and Corrections for the Vera Institute of Justice, an advocacy group. "States are looking at the numbers of people in prison for property crimes and asking themselves a simple question: Does everybody really need to be there?"
Crimes that do not meet the higher thresholds would be charged as misdemeanors or lower-level felonies. Prior to the new legislation, some offenders could have been prosecuted as felons for thefts of as little as $50 (in Oregon), less than the $62 per day average cost to house a state prisoner in the U.S. In Illinois, the threshold for general felony theft was raised from $300 to $500 and retail theft (theft specifically from retail stores) from $150 to $300.
October 31, 2011
"Court reluctant on plea bargains after sentencing"
The title of this post is the headline of this AP report on the oral arguments today in the big Sixth Amendment cases of Lafler v. Cooper and Missouri v. Frye (previewed here). Here are snippets from the AP account:
The Supreme Court seemed reluctant Monday to allow criminals to ask for a previously offered plea bargain after they've been sentenced, despite the inmates' claim of misconduct by their lawyers including neglecting to tell their clients that a deal had been offered.
Asking judges to go back and figure out on appeal whether a suspect would have taken a plea deal before a trial, whether a judge would have accepted it, whether a prosecutor would have withdrawn it or whether the negotiations would have fallen apart "is simply unworkable," said Justice Anthony Kennedy, who is often a tiebreaker votes on divisive issues....
In both cases, the criminals' lawyers are not arguing for new trials, a position the court seemed to agree with. "The remedy of giving a new trial when the person has already had a fair trial makes zero sense," Justice Samuel Alito said.
But Cooper's lawyer, Valerie Newman, said they should have a chance to go back and consider the plea offer. "I'm saying it's unfair to go to trial when your attorney tells you, 'You can't be convicted.'"
"You are saying it's unfair to have a fair trial; isn't that correct?" Kennedy said.
Several justices seemed concerned about how changing the plea system would affect prosecutors and judges. For example, it's easy for a criminal facing a decade in prison to say he would have taken a plea deal for one year after a judge has sentenced him to 10 years in prison, justices noted.
But the negotiations are going on before trial, and by "not accepting it he has a chance of going scot-free" if a jury finds him not guilty, Chief Justice John Roberts said. After conviction and sentencing, Roberts said, "presumably the defendant will always say, 'I would have taken that deal, because it's better.' So how is a judge supposed to go back and decide whether that's true or not" on appeal?"
Everyone can now read the full transcript in both these cases via this links provided by SCOTUSblog: the transcripts from today’s arguments in Lafler v. Cooper and Missouri v. Frye can be found here and here.
The US Sentencing Commission new mega-report on mandatory minimums now available
I am pleased to see that the US Sentencing Commission has succeeded in releasing its massive new report on mandatory minimums, which has the formal (and oh-so-exciting) title "Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System." This official press release provides the basics on this important report:
Today the United States Sentencing Commission submitted to Congress its 645-page report assessing the impact of statutory mandatory minimum penalties on federal sentencing.
Judge Patti B. Saris, chair of the Commission stated, “While there is a spectrum of views on the Commission regarding mandatory minimum penalties, the Commission unanimously believes that certain mandatory minimum penalties apply too broadly, are excessively severe, and are applied inconsistently across the country. The Commission continues to believe that a strong and effective guideline system best serves the purposes of sentencing established by the Sentencing Reform Act of 1984.”
In the report, the Commission recommends with respect to drug offenses that Congress reassess certain statutory recidivist provisions, and consider possible tailoring of the “safety valve” relief mechanism to other low-level, non-violent offenders convicted of other offenses carrying mandatory minimum penalties. It also recommends that Congress examine and reevaluate the “stacking” of mandatory minimum penalties for certain federal firearms offenses as the penalties that may result can be excessively severe and unjust, particularly in circumstances where there is no physical harm or threat of physical harm.
The Commission also addresses the overcrowding in the federal Bureau of Prisons, which is over-capacity by 37 percent. Saris noted, “The number of federal prisoners has tripled in the last 20 years. Although the Commission recognizes that mandatory minimum penalties are only one of the factors that have contributed to the increased capacity and cost of inmates in federal custody (an increase in immigration cases is another), the Commission recommends that Congress request prison impact analyses from the Commission as early as possible in the legislative process when Congress considers enacting or amending federal criminal penalties.”
The report was undertaken pursuant to a directive from Congress to examine mandatory minimum penalties, particularly in light of the Supreme Court’s 2005 decision in Booker v. United States, which rendered the federal sentencing guidelines advisory. The comprehensive report contains the most up-to-date data and findings on federal sentencing and the application of mandatory minimum penalties compiled since the Commission released its 1991 report. The Commission reviewed 73,239 cases from fiscal year 2010 as well as its data sets from previous fiscal years to conduct the data analyses in the report and support the findings and conclusions set forth.
Here are some of the report's key findings that are noted in the press release (with my emphasis added to spotlight data I found especially interesting and important):
- More than 27 percent of offenders included in the pool were convicted of an offense carrying a mandatory minimum penalty.
- More than 75 percent of those offenders convicted of an offense carrying a mandatory minimum penalty were convicted of a drug trafficking offense.
- Hispanic offenders accounted for the largest group (38.3%) of offenders convicted of an offense carrying a mandatory minimum penalty, followed by Black offenders (31.5%), White offenders (27.4%), and Other Race offenders (2.7%).
- Almost half (46.7%) of all offenders convicted of an offense carrying a mandatory minimum penalty were relieved from the application of such penalty at sentencing for assisting the government, qualifying for “safety valve” relief, or both.
- Black offenders received relief from a mandatory minimum penalty least often (in 34.9% of their cases), compared to White (46.5%), Hispanic (55.7%) and Other Race (58.9%) offenders. In particular, Black offenders qualified for relief under the safety valve at the lowest rate of any other racial group (11.1%), compared to White (26.7%), Hispanic (42.8%) and Other Race (36.6%), either because of their criminal history or the involvement of a dangerous weapon in connection with the offense.
- Receiving relief from a mandatory minimum penalty made a significant difference in the sentence ultimately imposed. Offenders subject to a mandatory minimum penalty at sentencing received an average sentence of 139 months, compared to an average sentence of 63 months for those offenders who received relief from a mandatory minimum penalty.
The full 645-page(!) report is linked from this USSC webpage, and a 25-page executive summary is available at this link. Lots and lots of posts about this report and the mass amount of data and analysis it reflects will follow through the days and weeks ahead.
October 31, 2011 in Detailed sentencing data, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (10) | TrackBack
Pam Karlan notes "The Cost of Death" for SCOTUS and the legal profession
Professor Pam Karlan has this notable new commentary in the Boston Review on "The Cost of Death" that puts an extra little spin on the arguments concerning the extraordinary resources spent (and arguably wasted) on capital cases in the United States. Here are excerpts:
Samuel Johnson famously remarked, “When a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.” But precisely because it so concentrates the public mind, capital punishment has distorted the criminal justice system. Over the past 40 years, while the Supreme Court has been “tinker[ing] with the machinery of death,” in Justice Harry Blackmun’s haunting phrase, other components of the system have broken down untended....
The [Supreme] Court’s rules single out capital cases for special treatment, directing that the notation “CAPITAL CASE” appear at the beginning of any such request for review and mandating that the government, which often waives its right to reply, file a response. The clerk’s office has a special staff attorney charged with overseeing the voluminous, often last-minute filings in death penalty cases. The justices and their law clerks often scrutinize the filings with great care. The bar has also responded: death row inmates typically receive superb legal assistance before the Supreme Court. Former Bush Administration Solicitor General Gregory Garre is now representing [Cory] Maples. Current Solicitor General Donald Verrilli previously represented several death row inmates pro bono before the Court.
But the concentration on capital cases comes at a cost. Ineffective trial lawyers, inconclusive evidence, inconsistent testimony, and impenetrable procedural thickets are hardly unique to capital cases. Nonetheless, the Court is far less likely to pay attention to these claims when the consequences to the defendant seem less harsh.... And while the Court has repeatedly considered whether a death sentence is proportionate to a particular class of crimes —for example, barring death sentences for non-homicide offenses or for juvenile or mentally retarded defendants — it has set virtually no limits on the severity of prison sentences. In the 40 years that the Court has been actively policing capital punishment, prison sentences have lengthened and the U.S. prison population has skyrocketed. With execution at the top end of the scale of punishment, a life sentence begins to look something like leniency, and other sentences are inflated in turn.
Capital cases also consume thousands of hours of legal services from some of the finest legal minds in America. The time those lawyers spend challenging death sentences of inmates whose guilt is not seriously in doubt could be spent preventing and remedying wrongful convictions, ensuring that all defendants receive prompt appointment of competent counsel, and attacking draconian prison conditions, not to mention providing civil justice to poor and disenfranchised people. But as long as the death penalty is with us, superb and committed lawyers at organizations such as the Southern Center for Human Rights, the Equal Justice Initiative, and the NAACP Legal Defense and Educational Fund will find themselves defending the lives of a few while the lives of many others continue to be ruined by pervasive flaws in our criminal justice system.
Regular readers know I have great affinity for the sorts of points that Professor Karlan is making here (and I am grateful she notes my work in a portion of this commentary I have not quoted). Regular readers also know that I express my concerns by often urging SCOTUS and others int he legal profession to try to avoid getting too obssessed with and/or distracted by capital cases. Of course, Professor Karlan is urging the most direct route to ensuring American lawyers stop too obssessed with and/or distracted by capital cases — namely, that through legislative repeal, we collectively stop having any American capital cases.
Split Eighth Circuit affirms reasonableness of 48-year sentence for juve who pleaded to second-degree murder
An interesting (and unusual) reasonableness appeal produced an interesting split of opinion today in US v. Boneshirt, No. 10-3108 (8th Cir. Oct. 31, 2011) (available here). Here are snippets from the relatively lengthy majority opinion authored by Judge Smith:
Brian Boneshirt pleaded guilty, pursuant to a written plea agreement, to one count of second degree murder, in violation of 18 U.S.C. §§ 1153 and 1111. The district court sentenced him to 576 months' imprisonment. On appeal, Boneshirt challenges the substantive reasonableness of his sentence. We affirm....
In his sentencing memorandum, Boneshirt objected to the allegation that he had participated in a plan to escape from jail. He also objected to the PSR's denial of the reduction for acceptance of responsibility and application of the enhancement for obstruction of justice. In addition, Boneshirt argued that the court should impose a below-Guidelines sentence in light of the 18 U.S.C. § 3553(a) factors. Specifically, he argued for leniency based on his youth and intoxicated state at the time of the offense, his difficult childhood, and his alcohol-related neurodevelopmental disorder....
After a careful review of the sentencing record, we conclude that the district court did not abuse its discretion in sentencing Boneshirt to 576 months' imprisonment. Both the sentencing hearing transcript and the court's statement of reasons explaining its sentence demonstrate that the court considered all of Boneshirt's arguments and the § 3553(a) factors, ultimately imposing the sentence based on the "nature of the offense, the nature of post-offense conduct, and the need to protect society from Mr. Boneshirt."...
In sum, the record indicates that, over the course of a six-hour sentencing hearing, the district court thoroughly considered all of Boneshirt's arguments, the facts, and the law in attempting to fashion an appropriate sentence. The resulting sentence is harsh but is within the calculated Guidelines range and hence may be considered presumptively reasonable. Frausto, 636 F.3d at 997. Presumptively reasonable, however, does not mean unassailable. Yet this record is lacking in a demonstration of sentencing error on the part of the district court. Many reasonable minds may have imposed a lesser sentence, but we conclude that the district court did not abuse its discretion and impose an unreasonable sentence by selecting a high but within-Guidelines sentence for a homicide offense.
Here is a passage from the relatively lengthy partial dissent authored by Judge Bright:
Boneshirt's forty-eight-year sentence is substantively unreasonable because the district court unreasonably weighed the facts at issue in the case. The district court failed to give proper weight to the fact that Boneshirt was a juvenile when he committed the crime, especially when his age is considered with his background and upbringing. And further, the district court’s sentence placed too much weight on a plan to escape by Boneshirt when he was pending sentencing.
Split SCOTUS summary reversal in California shaken-baby case involving sufficiency and habeas review
The Supreme Court this morning issued a summary reversal in Cavacos v. Smith, No. 10–1115 (S. Ct. Oct. 31, 2011) (available here), which starts and ends this way:
The opinion of the Court in Jackson v. Virginia, 443 U. S. 307 (1979), makes clear that it is the responsibility of the jury — not the court — to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury. What is more, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was “objectively unreasonable.” Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 5) (internal quotation marks omitted).
Because rational people can sometimes disagree, the inevitable consequence of this settled law is that judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold. The Court of Appeals in this case substituted its judgment for that of a California jury on the question whether the prosecution’s or the defense’s expert witnesses more persuasively explained the cause of a death. For this reason, certiorari is granted and the judgment of the Court of Appeals is reversed....
It is said that Smith, who already has served years in prison, has been punished enough, and that she poses no danger to society. These or other considerations perhaps would be grounds to seek clemency, a prerogative granted to executive authorities to help ensure that justice is tempered by mercy. It is not clear to the Court whether this process has been invoked, or, if so, what its course has been. It is not for the Judicial Branch to determine the standards for this discretion. If the clemency power is exercised in either too generous or too stingy a way, that calls for political correctives, not judicial intervention.
The decision below cannot be allowed to stand. This Court vacated and remanded this judgment twice before, calling the panel’s attention to this Court’s opinions highlighting the necessity of deference to state courts in §2254(d) habeas cases. Each time the panel persisted in its course, reinstating its judgment without seriously confronting the significance of the cases called to its attention. See Patrick v. Smith, 550 U. S. 915 (vacating and remanding in light of Carey v. Musladin, 549 U. S. 70 (2006)), reinstated on remand, 508 F. 3d 1256 (2007) (per curiam); 558 U. S. ___ (2010) (vacating and remanding in light of McDaniel v. Brown, 558 U. S. ___ (2010) (per curiam)), reinstated on remand sub nom. Smith v. Mitchell, 624 F. 3d 1235 (2010) (per curiam). Its refusal to do so necessitates this Court’s action today.
A lenthy dissent authored by Justice Ginsburg and joined by Justice Breyer and Sotomayor starts and ends this way:
The Court’s summary disposition of this case, in my judgment, is a misuse of discretion. I set out below my reasons for concluding that discretion, soundly exercised, would have occasioned denial of California’s petition for review...
In sum, this is a notably fact-bound case in which the Court of Appeals unquestionably stated the correct rule of law. It is thus “the type of case in which we are most inclined to deny certiorari.” Kyles v. Whitley, 514 U. S. 419, 460 (1995) (SCALIA, J., dissenting). Nevertheless, the Court is bent on rebuking the Ninth Circuit for what it conceives to be defiance of our prior remands. See ante, at 8. I would not ignore Smith’s plight and choose her case as a fit opportunity to teach the Ninth Circuit a lesson.
But even if granting review qualified as a proper exer cise of our discretionary authority, I would resist summary reversal of the Court of Appeals’ decision. The fact intensive character of the case calls for attentive review of the record, including a trial transcript that runs over 1,500 pages. Careful inspection of the record would be aided by the adversarial presentation that full briefing and argument afford. See, e.g., R. Fallon, J. Manning, D. Meltzer, D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 1480 (6th ed. 2009) (posing question whether summary reversal would “smack of unfairness to the losing party unless an opportunity were afforded for the filing of briefs on the merits”); Gressman, Supreme Court Practice §6.12(c), p. 417, and n. 46 (questioning the Court’s reliance on its own examination of the record in summarily reversing, without at least affording the parties, “particularly the respondent,” an opportunity to brief the critical issue and identify the relevant portions of the record). Peremptory disposition, in my judgment, is all the more inappropriate given the grave consequences of upsetting the judgment below: Smith, who has already served ten years, will be returned to prison to complete a sentence of fifteen years to life. Before depriving Smith of the liberty she currently enjoys, and her family of her care, I would at least afford her a full opportunity to de fend her release from a decade’s incarceration.
For some back-story on this remarkable case, check out this Los Angeles Times piece from last year headlined "A pawn in a legal chess match: Shirley Ree Smith spent 10 years behind bars for the death of her grandson before her conviction was overturned. Now she waits on skid row as the courts sort out whether a jury's verdict — even if wrong — must prevail."
Scary hard cases confronting bad plea advice, prejudice and Sixth Amendment remedies
As previously noted in this week in preview, this morning the US Supreme Court will hear arguments in Lafler v. Cooper (10-209) and Missouri v. Frye (10-444), two cases dealing with claims of ineffective assistance of defense lawyer for advice to reject a plea offer and either plead guilty or go to trial. Here are some effective previews from effective court reports:
- From SCOTUSblog here, "Argument preview: Remedy for ineffective assistance of counsel during plea bargaining?"
- From NPR here, "Cases Tied To Dubious Legal Advice Reach High Court"
- From the New York Times here, "Supreme Court to Weigh Effects of Bad Plea Advice"
Because 95% of all criminal convictions are obtained through plea deals (and because plea offers are usually proposed even in this 5% of cases resulting in convictions via trials), these cases have the potential to be blockbusters both as to of the number of past and future cases they could impact and also as to the future direction of the Sixth Amendment and constitutional regulation of the plea bargaining process. And, as the title of this post and the SCOTUSblog preview spotlights, these cases raise super-hard issues of prejudice and remedies that were conveniently dodged in Padilla v. Kentucky, the major Sixth Amendment plea advice ruling last year.
Especially because Chief Justice Roberts and Justices Alito, Sotomayor, and Kagan are relatively new voices and seem to be relatively uncertain votes on these hard issues of modern criminal procedure, I am going to be especially interested in reviewing the transcripts in Lafler and Frye to see how they all engage with this issue at oral argument today.
Trick or Treat?: What will new USSC report on mandatory minimums say and advocate?
Among the exciting activities I have planned for today, the last day of October, is to start reading the US Sentencing Commission's new report to Congress discussing mandatory minimum sentencing statutes in the federal sentencing system. This report has been in the works for two years, and is expected to be released later today.
According to Judge Patti Saris, the Chair of the US Sentencing Commission whom I had the pleasure to hear speak at an event in Ohio on Friday, this report is going to run more than 600 pages. Judge Saris also indicated that the report will assert that some mandatory minimum sentencing statutes apply too broadly and are too severe. But she also suggested that the report will not categorically assert that all mandatory minimum sentencing provisions are bad policy in all circumstances.
Remarkably, it has been more than two decades since the USSC issued a report to Congress on mandatory minimum sentencing. Way back in August 1991, the USSC produced this important document, titled "Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System," which reached these important conclusions:
Despite the expectation that mandatory minimum sentences would be applied to all cases that meet the statutory criteria of eligibility, the available data suggest that this is not the case. This lack of uniform application creates unwarranted disparity in sentencing, and compromises the potential for the guidelines sentencing system to reduce disparity....
In 35 percent of cases in which available data strongly suggest that the defendant's behavior warrants a sentence under a mandatory minimum statute, defendants plead guilty to offenses carrying non-mandatory minimum or reduced mandatory minimum provisions. Since the charging and plea negotiation processes are neither open to public review nor generally reviewable by the courts, the honesty and truth in sentencing intended by the guidelines system is compromised....
The disparate application of mandatory minimum sentences in cases in which available data strongly suggest that a mandatory minimum is applicable appears to be related to the race of the defendant, where whites are more likely than non-whites to be sentenced below the applicable mandatory minimum; and to the circuit in which the defendant happens to be sentenced, where defendants sentenced in some circuits are more likely to be sentenced below the applicable mandatory minimums than defendants sentenced in other circuits. This differential application on the basis of race and circuit reflects the very kind of disparity and discrimination the Sentencing Reform Act, through a system of guidelines, was designed to reduce.
Whereas the structure of the federal sentencing guidelines differentiates defendants convicted of the same offense by a variety of aggravating and mitigating factors, the consideration of which is meant to provide just punishment and proportional sentences, the structure of mandatory minimums lacks these distinguishing characteristics. Under the guidelines, offenders classified as similar receive similar sentences; under mandatory minimums, offenders seemingly not similar nonetheless receive similar sentences. It thus appears that an unintended effect of mandatory minimums is unwarranted sentencing uniformity.
Our analyses indicate that the guidelines system established by Congress, because of its ability to accommodate the vast array of relevant offense/offender characteristics, and its self-correcting potential, is superior to the mandatory minimum approach.... Accordingly, we conclude that the most efficient and effective way for Congress to exercise its powers to direct sentencing policy is through the established process of sentencing guidelines, permitting the sophistication of the guidelines structure to work, rather than through mandatory minimums. There is every reason to expect that by so doing, Congress can achieve the purposes of mandatory minimums while not compromising other goals to which it is simultaneously committed.
Of course, in 1991 the federal sentencing guidelines were mandatory; now they are advisory. Nevertheless, I do not think this change in the formal legal status of the guidelines should radically change the themes and prescriptions concerning mandatory minimum statutes that the USSC set forth 20 years ago. It will be interesting to just how the new MM report echoes or revises some of the conclusions stated the last time around.
October 31, 2011 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1) | TrackBack
October 30, 2011
Big coming week for sentencing geeks (like me)
This new week has so many events for which I have marked my calender, I am getting a bit concerned I might have a sentencing geek break-down before the week is through. Of particular note (as I will discuss in a subsequent post), I have on lots of good authority that the US Sentencing Commission on Monday will be releasing its long-awaited (and apparently 600+ page long) report to Congress on federal mandatory minimums. And, the next day, November 1, marks the day the new guideline revisions go into effect and the new reduced crack guideline become officially retroactive.
Meanwhile, as well detailed in this new SCOTUSblog post, a number of important criminal justice cases are to be argued before SCOTUS this coming week. Here is the schedule via that post:
Monday, Oct 31:
Lafler v. Cooper (10-209) — claim of ineffective assistance of defense lawyer for advice to reject a plea offer and either plead guilty or go to trial (new question on remedy added by the Court)
Missouri v. Frye (10-444) — issues parallel to those in Lafler; the cases are being argued in tandem by order of the Court
Tuesday, Nov. 1:
Rehberg v. Paulk (10-788) — scope of immunity for government official who initiates a criminal case then testifies falsely to a grand jury
Minneci v. Pollard (10-1104) — right to sue for damages for constitutional violations by private employees working for the government under contract
Wednesday, Nov. 2:
Perry v. New Hampshire (10-8974) — challenge to use of questionable eyewitness identification as criminal evidence
Gonzalez v. Thaler (10-895) — timing for appeal in federal habeas case after state conviction has become final
Is Mountain Dew really a lot more dangerous than mary jane?
The provocative question in the title of this post is prompted by provocative new research appearing in this forthcoming article due to be published in the peer-reviewed journal Injury Prevention. (Many thanks to a kind reader for forwarding to me the link to this piece.) The article carries the title "The ‘Twinkie Defense’: the relationship between carbonated non-diet soft drinks and violence perpetration among Boston high school students." Here is the abstract:
Objectives: To investigate the association of carbonated non-diet soft drink consumption and violence perpetration in a sample of Boston adolescents.
Methods: In a survey of Boston public high schools, respondents were asked how often they drank non-diet soft drinks and whether they had carried a weapon or engaged in physical violence with a peer. Regression analysis was used to determine the role of soft drink consumption in these behaviours.
Results: Adolescents who drank more than five cans of soft drinks per week (nearly 30% of the sample) were significantly more likely to have carried a weapon and to have been violent with peers, family members and dates (p<0.01 for carrying a weapon and p<0.001 for the three violence measures). Frequent soft drink consumption was associated with a 9–15% point increase in the probability of engaging in aggressive actions, even after controlling for gender, age, race, body mass index, typical sleep patterns, tobacco use, alcohol use and having family dinners.
Conclusions: There was a significant and strong association between soft drinks and violence. There may be a direct cause-and-effect relationship, perhaps due to the sugar or caffeine content of soft drinks, or there may be other factors, unaccounted for in our analyses, that cause both high soft drink consumption and aggression.
I do not recall having ever seen behavioral research that shows a "significant and strong association" between pot consumption (as opposed to pot sales) and violent behavior. That is why my post title seriously wonders whether those seriously concerned about reducing violent crime ought to be perhaps more interested in pop prohibition than pot prohibition.
At the very least, this research indicating a "significant and strong association between soft drinks and violence" could and should (1) provide some additional support for a "soda tax" added to all drinks with high sugar and caffeine content, and (2) prompt anyone who has previously criticized Michelle Obama's healthy eating campaign to recognize there could be important connections between reducing unhealthy consumption by young people and reducing violent behavior by young people.
UPDATE: A helpful reader points me to this 2004 Rand working paper on marijuana and crime, which reviews some prior research on pot and crime and makes lots of interesting additional points. Here was one notable portion of the Rand discussion:
Overall the findings from the reduced form models would suggest that marijuana use is positively associated with property and income-producing crimes and that no causal association exists between marijuana use and violent crime.
Another Texas execution and still another Texas pre-execution innocence debate
While I was on the road the last few days, two notable Texas death penalty stories made these headlines:
- From CNN, "Man convicted of killing cop, wife put to death in Texas"
- From the AP, "Prosecutors, lawmakers ask Perry, others for DNA tests for inmate before November execution"
I cannot help but speculate about how Texas Governor Rick Perry's recent drop in the GOP presidential polls might impact how he responds in the days ahead to the request for DNA testing by death row inmate Hank Skinner, who is now scheduled to be executed on November 9 for the 1993 killing of his girlfriend and her two sons. I suspect an effort by Perry to enable DNA testing might get him lots of good (liberal?) media attention, but that will not obviously help his cause (and could even hurt him) in the minds of GOP primary voters.
I think if Gov. Perry was slick and politically shrewd, he might try to make the Skinner case a topic of considerable attention in an effort to force his rivals like Mitt Romney and Herman Cain to speak on the death penalty. Gov. Perry has a record on death penalty issues that, when considered in total, should warm the hearts of most GOP voters, while Romney and Cain might make some political blunders if forced to talk about these kinds of issues at some length.
Sentencing Mad Max finally able to say thanks
After a whirlwind sentencing road warrior three days which included three amazing sentencing get-togethers in three different locations (in three different federal circuits), I am finally back at my home office with a few free moments that finally allow me to say a hearty thanks to all the amazing people who helped put together three amazingly effective and engaging events. My head is still swimming with all that I learned at each of the events; I am also still giddy not only about victories by the Cards and the Buckeyes while I was a road warrior, but also about the fact that I was able to get out of Philly and home to Ohio in the midst of the October(!?!) snowstorm that has hit the East Coast this weekend.
So much happened at each of the events — and so many people were responsible for treating me so well — that I am certain I will not be able to effectively blog about everything worthy of commentary nor will I be able to adequately thank and congratulate all the lovely people responsible for my terrific experiences. I can here report, however, something that ought to especially intrigue regular blog readers: for the very first time, I finally met the man behind Supremacy Claus in person (at the Penn Law Review event on Saturday)!