November 12, 2011
"L.A. County jails may be out of room next month" (which could really help Conrad Murray)
The title of this post is the headline of this new piece from the Los Angeles Times, which gets started this way:
Los Angeles County's jails could run out of space as early as next month because of an influx of state prisoners, prompting officials to consider releasing potentially thousands of inmates awaiting trial.
The state's new prison law, which establishes a practice known as realignment, is expected to send as many as 8,000 offenders who would normally go to state prisons into the L.A. County Jail system in the next year.
Currently, defendants awaiting trial account for 70% of the jail population, but Sheriff Lee Baca said that might need to drop to 50%. The department is studying a major expansion of its electronic monitoring and home detention programs to keep track of inmates who are released.
Baca said the department is also developing a new risk-assessment system designed to better identify which inmates are the best candidates to leave the jails. Additionally, the department is looking at ways to channel more offenders into education and substance abuse programs rather than jail.
An internal report produced by the L.A. County district attorney's office and obtained by The Times estimated that the county jails would be full by the end of the year. The Sheriff's Department has the funding to open only an additional 1,800 beds, far below the number needed to accommodate the tide of state prisoners coming its way, the report said.
The realignment plan, developed to comply with a U.S. Supreme Court decision on overcrowding in the state prison system, has generated dire warnings from local police and prosecutors who fear the shift will place more offenders on the streets and increase crime. Los Angeles Police Chief Charlie Beck has predicted that the city could see a 3% increase in crime because of realignment.
There is special concern about releasing more defendants before trial, with prosecutors fearing that some might not show up in court. Dist. Atty. Steve Cooley said he also worries that inmates on electronic monitors could intimidate witnesses or take other actions to disrupt their trials.
Cooley used the conviction of Michael Jackson's personal physician for involuntary manslaughter to highlight the risks realignment brings. Conrad Murray faces up to four years in prison. But under the realignment law, he would spend that sentence in a county jail rather than a state prison. That's because under the law, involuntary manslaughter as well as crimes such as drug offenses and identity theft no longer require state prison time.
Cooley said that if the County Jail system reaches capacity, Murray could be a candidate for early release. "There is going to be a tremendous number of people that should be in jail and will not be incarcerated," he said. "This is the kind of story that will play out over and over again."
Yikes, Conrad Murray might be back on the California streets sooner because of L.A. jail overcrowding?!?! Oh my, goodness! Gracious land sakes alive! Sound the alarms, get your kids inside right away, and be extra sure to lock-down all of your propofol!! We all should start worrying that Murray could be a threat all by himself to cause the 3% increase in crime being predicted by the LA police chief.
Obviously, my tongue was planted firmly in my cheek when writing the prior paragraph. Though there may be lots of reasons we might think it unjust if Conrad Murray ultimately ends up getting a significant sentencing windfall because of prison and jail overcrowding in California, I do not think many folks should be deeply worried about Murray (or other similar persons who get an early release from California incarceration) going on a post-release crime spree. Of course, other persons who get early release in California because the jails have no more room may be much more of a threat to public safety, but crime increases may be as much the result of a local officials having a poor plan for who gets early release rather that the fact that Californians have been unwilling to spend a lot more money to construct a lot more prisons and jails.
Debates over a healthy diet now an Eighth Amendment issue
I often tell my students that every matter of importance in society is, in some way and at some time, a matter of concern in debates over sentencing law and policy. The latest proof of this claim comes from this New York Times article, which is headlined "Soy Diet Is Cruel and Unusual, Florida Inmate Claims," and starts this way:
One too many bouts of flatulence and cramping has led a Florida inmate to sue the Department of Corrections, arguing that the prison’s soy-based turkey dogs and sloppy Joes amount to cruel and unusual punishment.
Eric D. Harris, 34, who is serving a life sentence for sexual battery on a child, said the soy in his prison chow is threatening his health by endangering his thyroid and immune system. Florida prisons serve meals with 50 percent soy and 50 percent poultry three times a day, a mixture that costs half as much as using beef and pork, the Department of Corrections says. The cost per meal: $1.70 a day for each inmate. Florida prisons first began serving soy-based meals in 2009.
As an inmate at the Lake Correctional Institution, near Orlando, Mr. Harris, a former paralegal, has few culinary choices. He can eat 100 grams of soy protein a day, use his own money to buy food at the commissary or eat a vegan diet, he said in the lawsuit, which was filed in state court in Tallahassee and which The Orlando Sentinel reported on this week.
Gretl Plessinger, a spokeswoman for the Florida Department of Corrections, said inmates can choose an alternative vegan meal if they do not want soy. “We have a constitutional obligation to feed them healthy, nutritious food, but we don’t have an obligation to feed them beef,” she said.
“Excessive soy can be toxic to the thyroid gland,” said Sally Fallon Morell, the president and treasurer of the Weston A. Price Foundation, a nonprofit group that advocates a diet of whole, largely unprocessed foods and food high in saturated fats, and is publicizing the lawsuit. “It can have hormonal effects.”
It turns out that Mr. Harris is not alone in his objection. Nine inmates at the Danville Correctional Center in Illinois filed a similar lawsuit there in 2009, which is pending. That lawsuit is being financed by the Price Foundation.
Prisoners who have soy allergies or other ailments are especially at risk, said Ms. Fallon Morell, who added that her organization has received hundreds of calls from inmates and their relatives in Illinois and Florida who complain about the ill effects from too much soy. Illinois switched to soy-based meals in 2004 to save money. Ms. Fallon Morrell said Illinois prisons serve more than 100 grams of soy protein a day — much more than the 25 grams the government recommends.
"The Dark at the Top of the Stairs: Four Destructive Influences of Capital Punishment on American Criminal Justice"
The title of this post is thew title of this new paper by Professors Frank Zimring and David T. Johnson now available via SSRN. Here is the abstract:
State execution is not a major part of America's system of criminal punishment, but it casts a long shadow over the principles and practices of the rest of criminal justice. This essay discusses four negative impacts of the death penalty on the larger system: (1) The hyper-extension of the substantive criminal law; (2) The symbolic transformation of harsh punishment to a private reward; (3) The creation and overuse of Life Without Possibility of Parole (LWOP) sentences; and (4) The diversion of legal and judicial resources from other pressing problems in the criminal system.
November 11, 2011
New SLR Online gets started with great piece on "California's De Facto Sentencing Commissions"
I am pleased and honored to have been asked to help spread the word about today's launch of the Stanford Law Review Online, which aspires to "offer a flexible outlet for our publication of short, original pieces of scholarship and commentary on timely topics." I am also pleased and excited that the first piece in the first issue of the SLR Online is by one of my very favorite sentencing scholars, Robert Weisberg, in the form of this thoughtful commentary titled "California's De Facto Sentencing Commissions." Here are a few excerpts from the piece which should help highlight why the full article is a must-read:
The concept of a sentencing commission as a mechanism for governance of a jurisdiction’s criminal justice system has achieved great prominence in recent years and been the subject of much important commentary. In light of California’s recent passage of A.B. 109, legislation that drastically overhauls the state’s sentencing and correctional systems, now is an ideal time to evaluate California’s adoption and implementation of the commission model.
Readers who are familiar with California criminal justice will pause quizzically at that last sentence, observing that the California Legislature has steadfastly refused to create a sentencing commission. But my argument here is that there is now, in effect, a California sentencing commission even if not by explicit law. Indeed, I will argue that collectively the branches of our state government have, whether intentionally or not, created a number of sentencing commissions....
[W]hile the commission idea failed de jure, it “succeeded” de facto. This is because the legislature in effect did cede power to the “sentencing commission” constituted in the United States District Courts for the Northern and Eastern Districts of California. These courts have taken over much of the administration of the prison system. They have ordered the state’s Department of Corrections and Rehabilitation to exhaustively study and, where necessary, change sentencing and corrections practices without legislative participation, and they have directly drawn on the state treasurer’s bank account to pay for it....
[T]he much-publicized A.B. 109, the Criminal Justice Realignment Act of 2011, ... is the most significant change in the California Penal Code since the DSL was passed. But it operates more indirectly than any straightforward rewriting of the Penal Code. The gist of the new law is to shift control over thousands of prisoners from the state to the counties....
So who is in charge of all these operations? A.B. 109 requires each county to create a Community Corrections Partnership (CCP) to develop and recommend to the county Board of Supervisors a comprehensive plan for carrying out all the demands of the new realignment mandate. Each CCP is to consist of the chief probation officer, the sheriff, local police chiefs, the district attorney, the public defender (or head of the relevant defense organization), the presiding judge of the superior court, and representatives from such agencies as social services, mental health, and alcohol and substance abuse programs....
I submit that by virtue of its membership and functions, the CCP is a sentencing commission. The CCPs are now scrambling to figure out how to survive this massive transfer of authority with what might prove to be insufficient funds and without clear data to predict the size and nature of its new inmate, probationer, and parolee populations...
So now California has fifty-eight sentencing commissions (or fifty-nine if you count the federal judiciary). California could have had just one, and it could have made that commission a responsible and well-coordinated branch of state government. Perhaps recklessly, it chose this other path. The lesson: a criminal justice system in sufficient crisis will have a sentencing commission — one way or another.
"Blind Goddess": a new reader on race and criminal justice
Via an e-mail for the folks at The Sentencing Project, I have learned of this new book on note titled "Blind Goddess: A Reader on Race and Justice." The book has edited selections from a broad range of scholars and advocates discussing racial dynamics intersect with the criminal justice system. Here is a summary of the work from the publisher's website:
Blind Goddess brings together the most significant writings of practitioners, professors, and advocates to make sense of what is perhaps the nation’s most astonishing and shameful achievement: the highest per-capita incarceration rate anywhere in the world compounded by the shockingly disproportionate imprisonment of poor people of color. Although there is growing awareness of the huge fiscal cost of mass incarceration, the moral, human, and social devastation of racially skewed law enforcement remains largely unrecognized.
Featuring many of today’s premier legal scholars, experts, and writers—among them David Cole, Glenn C. Loury, Bob Herbert, and Lani Guinier—here is a boundary-pushing book that elucidates the impact of race on each stage of the criminal process. From policing and prosecuting to jury selection, sentencing, prison conditions, and reentering society, Blind Goddess is an essential volume for the general reader and an ideal reality check for students of criminal law. With selections from critically acclaimed contemporary works including Michelle Alexander’s The New Jim Crow, Paul Butler’s Let’s Get Free, Amy Bach’s Ordinary Injustice, and Robert Perkinson’s Texas Tough, Blind Goddess provides easy access to a wealth of cutting-edge analyses and concrete solutions.
Santa Clara in the midst of (dangerous?) crime experiment in laboratory of California
As a deep believer in the benefits of laboratories of democracy, I have long hoped that there would be more local and state criminal justice innovations in this modern era of less crime and more punishment. Consequently, I am pleased and intrigued by this local story out of California, headlined "On crime policy, Santa Clara County takes a cutting-edge -- some say risky -- approach." Here are excerpts:
Long overshadowed by freethinking San Francisco, Berkeley and now protest-roiled Oakland, Santa Clara County has been eclipsing its lefty neighbors lately -- with criminal justice policies that critics blast as risky but supporters call cutting-edge.
From its controversial stand against a federal policy on detaining jailed illegal immigrants to its open-arms, welcome-home stance toward newly freed state prisoners, Santa Clara County has struck the kind of permissive chord that puts Fox News pundits in a lather. "The county is shaping up to be one of the most progressive in the state on reforming the criminal justice system," said Allen Hopper, police practices director of the ACLU of Northern California.
To be sure, prosecutors and judges in Santa Clara County are still filing stiffer charges and putting people behind bars longer than in San Francisco. But on the immigration front, the Board of Supervisors late last month approved a policy that made Santa Clara County only the second jurisdiction in the nation to defy U.S. Immigration and Customs Enforcement, known as ICE. Chicago's Cook County was the first.
Now, the Santa Clara County sheriff releases illegal immigrants with a history of committing serious or violent crimes onto the streets unless ICE pays to detain them -- and so far the feds are refusing to cough up the money. Even San Francisco County has retreated from its previous extremely lenient illegal-immigration policy after undocumented juveniles it protected went on to commit well-publicized murders.
In addition, Santa Clara County's willingness to experiment with rehabilitating rather than simply locking up nonviolent felons under the state's massive new "realignment" of the criminal justice system is generating such interest that Stanford and Santa Clara universities are holding law school seminars this year devoted to studying it. The county, for example, is the only one in the state reaching out to prison inmates before they return home under the new supervision of county probation officers. Local officials are showering the prisoners with offers of job training, places to live and even free medication.
"I'm proud of the county," said Supervisor Dave Cortese. "I feel we are moving as much as we can toward a system of restorative justice rather than punitive" justice.
But some think the county is going too far -- particularly with its new immigration policy, which passed on a 3-1 vote.... After the vote, District Attorney Jeff Rosen and Sheriff Laurie Smith warned that freeing illegal immigrants whose previous records include violent crimes, instead of holding them 24 hours for ICE, poses a risk that they may go on to victimize others. "I think they're just playing with dynamite," said Don Gage, a former longtime Republican county supervisor who represented South County. "I wouldn't have voted for it either."
Advocates, on the other hand, say any alliance with ICE in the face of anti-immigrant laws in Arizona, South Carolina, Georgia, Utah, Indiana and Alabama -- as well as the recent presence of two ICE agents on a San Jose police gang unit -- could create an even bigger risk by undermining immigrant communities' trust in the police, making people afraid to report crimes as witnesses or even as victims. In a recent local case, two San Jose brothers who are illegal immigrants badly beat a man who molested an 8-year-old girl in their household rather than call the police, partly out of fear of being deported....
On realignment, the county was able to draw on its previous positive experience with juvenile-justice reform programs, which have reduced the number of kids in juvenile hall and shifted the emphasis at youth ranches from punishment to rehabilitation. So when the state set out to trim its prison population and costs by unloading responsibility this fall for incarcerating and rehabilitating thousands of lower-level felons on local governments, Santa Clara County was ready.
November 10, 2011
Effective new report on effective state-level sentencing and corrections reforms
Thanks to this post at Right on Crime, I discovered that the "National Governor’s Association (NGA) recently released an analysis of state-level sentencing and corrections reforms." This analysis is a 26-page Issue Brief titled "State Efforts in Sentencing and Corrections Reform," and here is the report's executive summary:
States continue to struggle during what is the most difficult fiscal environment since the Great Depression. Projections are that the economic recovery will be slow, forcing states to think longterm about how to do more with less. Full economic recovery may not happen until the end of the decade. With corrections among states’ largest expenditures, many are rethinking their approaches to sentencing and corrections practices as they seek to constrain spending.
Between 2009 and 2010, at least 40 states made cuts to general fund expenditures for corrections. They are reducing staff salaries, benefits, or overtime, eliminating prison programs, and making food-service changes. Furthermore, states have been increasingly focused on finding ways to decrease overall prison populations. Given that the average prison bed now costs $29,000 a year, they are looking for ways to reduce the number of nonviolent and low-risk individuals going to prison, to move offenders who can be safely managed in the community out of prison sooner, and to keep ex-offenders out of prison through improved prisoner reentry practices.
Ultimately, states aim to reduce prison populations enough to allow them to close prisons. States are accomplishing reductions through sentencing reform, efforts to reduce offender recidivism, and parole and probation reform. For example:
- South Carolina approved a sentencing reform package in 2010 that the state estimates will reduce the need to build and operate new prison beds by 1,786, saving up to $241 million by reducing incarceration of nonviolent offenders and more closely supervising released inmates to reduce recidivism;
- Nevada saved $38 million in operating expenditures by FY 2009 and avoided $1.2 billion in new prison construction by making key sentencing reforms, including expanding the number of credits inmates could earn for “good time” and the number of credits those on community supervision could earn for complying with conditions; and
- Kentucky passed legislation expected to save the state $422 million over the next decade by diverting certain drug offenders into treatment rather than prison and reserving prison space for violent and career criminals.
The challenge to states is to make cuts in corrections spending while maintaining public safety. Fortunately, there now exists a significant body of research about which sentencing and corrections practices work and which do not. Research shows that implementation of evidence-based practices leads to an average decrease in crime of between 10 percent and 20 percent. Programs that are not evidence-based, on the other hand, tend to see no decrease or even a slight increase in crime.
States can use that knowledge to make more informed decisions about which policies and programs to support as they seek to reduce spending on corrections. This Issue Brief provides an overview of the cost drivers behind corrections expenditures and identifies critical decision-points for states to consider as they take action to reduce costs. It also examines challenges to enacting reforms and makes recommendations for states looking to improve public safety with fewer resources. Those recommendations include:
- Pursue an approach to reform that involves coordination and collaboration among state executive, legislative, and judicial branches;
- Adopt evidence-based practices proven to reduce recidivism and eliminate programs shown to be ineffective or harmful;
- Target high-risk offenders and tailor sentencing, treatment, and release decisions to individual risk factors;
- Support mandatory supervision and treatment in the community; and
- Use real-time data and information for decision-making.
"US judge: Prosecutors overcharged ex-Pa. Sen. Fumo in 137-count corruption case" ... UPDATE: Fumo resentenced to 61 months
The title of this post is the headline of this interesting AP report on developments during day two of the resentencing hearing for a corrupt state politician. Here are excerpts:
A federal judge re-sentencing Vincent Fumo says the powerful former Pennsylvania senator was overcharged in the sprawling corruption case. Senior U.S. District Judge Ronald Buckwalter says Thursday he thinks federal prosecutors violated their own policy manual in filing 137 counts against Fumo.
Fumo was convicted of all of them, including fraud, obstruction and tax counts. The jury found he defrauded the senate and two charities of millions.
The Philadelphia Democrat faced about 20 years under federal guidelines at his 2009 sentencing, but Buckwalter sentenced Fumo to 4-1/2 years. A federal appeals court threw out the sentence.
Defense lawyers are now asking for a break based on the 68-year-old Fumo's age and health problems. Prosecutors say he is preparing to leave prison and exact revenge — and become a statehouse lobbyist.
Recent related posts:
- "Court orders resentencing of ex-Pennsylvania state senator"
- Feds want a lot more prison time for corrupt state pol Vincent Fumo
- Old corrupt pol facing new federal sentencing after Third Circuit reasonableness rejection
UPDATE: As detailed in this follow-up AP piece, Fumo now "has been re-sentenced to 61 months in prison in a sprawling corruption case, up from 55 months."
Three decades after shooting the President, John Hinckley's freedom still debated
As reported in this post from The BLT, "prosecutors are urging a judge in Washington to reject expanding the conditional release of John Hinckley Jr., the man who more than 30 years ago attempted to assassinate President Ronald Reagan." Here is more:
Judge Paul Friedman of U.S. District Court for the District of Columbia will preside over a hearing Nov. 28 to determine whether to allow Hinckley greater freedom, including some trips during which law enforcement officers would not know his whereabouts.
Friedman in July 2009 granted Hinckley twelve visits to his mother’s hometown in addition to allowing him certain periods of unaccompanied time. Earlier this year, the judge extended the current conditional release program, giving Hinckley, who lives at St. Elizabeths Hospital in Southeast Washington, the chance to continue to visit his mother.
The hospital’s lawyers with the D.C. Office of the Attorney General proposed in late July expanding Hinckley’s conditional release.
Hinckley, according to the U.S. Attorney’s Office for the District of Columbia, would be granted two visits of 17 days and six visits of 24 days. The hospital also asked for sole discretion to place Hinckley on convalescent leave after the eight trips. “The hospital’s proposal for expanded conditions of release is premature and ill-conceived,” assistant U.S. attorneys Sarah Chasson and Colleen Kennedy said in court papers (PDF).
The proposal, prosecutors said, “fails to adequately address the risks presented by Hinckley’s clinical record.” The government contends Hinckley’s record “reveals the persistence of several behaviors that universally have been recognized as risk factors for Hinckley’s future violence.”
Hinckley’s attorney, Barry William Levine, a Dickstein Shapiro partner in Washington, was not immediately reached for comment this morning. Levine has said that Hinckley no longer poses a danger to himself or others.
Prosecutors concede that Hinckley’s mental health is better. But the government maintains that his core psychiatric diagnoses, including narcissism, remain.
When I teach insanity law to 1Ls, I often use John Hinckley's confinement as an example of the possibility that the confinement consequences of being found not guilty by reason of insanity can sometimes be worse for a defendant than a guilty verdict. I suspect that Hinkley may have received a sentence of (much?) less than 30 years imprisonment for shooting President Reagan following a guilty verdict in the (pre-guidelines) 1980s or at the very least would have had a decent chance of being granted parole a few decades into his term even if he had gotten a longer prison sentence. Instead, he has been confined to a mental hospital for now nearly three decades.
Of course, spending decades in a mental hospital might be (much?) nicer than spending decades in prison, and Hinkley's treatment and development for his obvious mental issues might have been much better in the hospital than in prison. Still, it is interesting to speculate what might have become of Hinckley if he accepted a plea of guilty rather than sought (and won) an insanity acquittal. And, with similar types of issues abounding and already in the Jared Loughner Tucson shooting case, these issue remain very timely and relevant to defending persons with mental illness who commit terrible crimes.
Former DA of LA says "Death penalty cases not a smart use of limited funds"
This new commentary by Gil Garcetti, headlined "Death penalty cases not a smart use of limited funds," starts and ends this way:
I served 32 years in the District Attorney's Office in Los Angeles. I've been gone for nearly 11 years. In those accumulated 43 years, only two people sent to Death Row from an L.A. court have been executed, despite decades of agony for the families of murder victims and hundreds of millions of dollars in costs to taxpayers.
I have concluded that the death penalty law should be replaced with life imprisonment without the possibly of parole. Why? Because the death penalty serves no useful purpose. It is not a deterrent. It is horrendously expensive, and we cannot afford it.
There also are too many instances, nationwide, where people have been on Death Row until new evidence determined their total innocence. I would not be shocked if one or more of the 720 prisoners on Death Row in California were innocent of the crime for which he or she awaits execution.
Even proponents of the death penalty agree that the current system brings no finality or closure to the family and friends of the murdered victim and that it is outrageously expensive. They argue that it can all be done faster or for less money. They don't fully understand California's laws or justice system....
Not all murders are death penalty eligible cases. But the families of those murder victims deserve finality and closure as much as the grieving families in death penalty cases. In 2000, the last year I was D.A., there were 1,000 murders in Los Angeles County. Of those, only 370 cases were solved
In 2009, the last year for these figures, there were 699 murders but just 362 cases were solved. So even though today there are fewer homicide cases overall, the number of murder cases solved in L.A. has barely changed. Statewide, 46 percent of murders remain unsolved.
By replacing the death penalty with life imprisonment, we save $1billion over the next five years -- money that can then be used for productive purposes including keeping our teachers, police and firefighters in their jobs.
We cannot bring back a murdered loved one. But we can help prevent future similar tragedies by using our very limited financial resources in smarter ways than to finance a law that serves no useful purpose.
November 9, 2011
Notable early prediction on what SCOTUS will do with juve LWOP in Jackson and Miller
As first noted here, this last Monday the Supreme Court grant cert in two cases, Miller v. Alabama and Jackson v. Hobbs (which comes from Arkansas), involving life without parole sentences imposed on two defendants convicted of murders committed when they were only 14-years-old. In this Boston Globe commentary about the cases, which is headlined "Supreme Court should rule against JLWOP," Professor James Alan Fox has this notable prediction about these cases:
If I were a betting man, I would wager heavily that the petitioners will indeed prevail. In earlier cases before it, the Court has ruled that executing juveniles is unconstitutional as is life without parole for non-homicide juvenile cases. In both instances, the Court was convinced that teenagers are different from adults in terms of emotional maturity and cognitive development, making them less culpable no matter how heinous the crime. Clearly, “adult time for adult crime” is little more than a catchy slogan.
In my view, the question is not so much whether the Court will overturn the sentences given Jackson and Miller, but how broadly the ruling will apply. The Court could limit its decision to the youngest of defendants rather than all juveniles. It also could apply its ruling to a narrow set of circumstances, such as only felony-murder, joint ventures, or cases with compelling mitigation.
This prediction and follow-up question seem spot-on to me, and I would add the predictive observation that not just Justice Kennedy, but also Chief Justice Roberts, are likely to prove to be key swing votes determining the outcome and scope of the decisions in Jackson and Miller.
A few recent related posts on Jackson and Miller and related issues:
- What might SCOTUS be doing with long-held cases involving 14-year-olds serving LWOP?
- Supreme Court grants cert on two Eighth Amendment LWOP challenges for 14-year-old murderers!
- Basic background on Jackson and Miller, the new SCOTUS juve LWOP cases
- "Graham on the Ground"
- Does Graham create constitutional problems for juve LWOP for murder accomplice?
- "The Supreme Court and the Sentencing of Juveniles in the United States: Reaffirming the Distinctiveness of Youth"
- "Juvenile Criminal Responsibility: Can Malice Supply the Want of Years?"
November 9, 2011 in Assessing Graham and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (15) | TrackBack
"Marriage as Punishment"
The title of this post is the title of this forthcoming article by Professor Melissa Murray now available on SSRN. As the abstract reveals, this piece a serious discussion of interesting issues (though the title might sound like the punchline of a bad joke among rowdy bachelors):
Popular discourse portrays marriage as a source of innumerable public and private benefits, happiness, companionship, financial security, and even good health. Complementing this view, our legal discourse frames the right to marry as a right of access, the exercise of which is an act of autonomy and free will. However, a closer look at marriage’s past reveals a more complicated portrait. Marriage has been used -- and importantly, continues to be used -- as state-imposed sexual discipline.
Until the mid-twentieth century, marriage played an important role in the crime of seduction. Enacted in a majority of U.S. jurisdictions in the nineteenth century, seduction statutes punished those who 'seduced and had sexual intercourse with an unmarried female of previously chaste character' under a 'promise of marriage.' Seduction statutes routinely prescribed a bar to prosecution for the offense: marriage. The defendant could simply marry the victim and avoid liability for the crime. However, marriage did more than serve as a bar to prosecution. It also was understood as a punishment for the crime. Just as incarceration promoted the internalization of discipline and reform of the inmate, marriage’s attendant legal and social obligations imposed upon defendant and victim a new disciplined identity, transforming them from sexual outlaws into in-laws.
The history of marriage as punishment offers important insights for contemporary discussions of marriage. It reveals the way in which our current discourses of marriage are naïve and incomplete, emphasizing marriage’s many attributes while downplaying its role as a vehicle of state-imposed sexual discipline. In view of this history, our contemporary jurisprudence on the right to marry can be reread to reveal the disciplinary strains that continue to undergird marriage and the right to marry. Most importantly, this history reveals that state regulation of sex and sexuality has been a totalizing endeavor, relying on marriage and criminal law as two essential domains for disciplining and regulating sexuality.
With this in mind, the recent struggle for marriage equality seems unduly narrow. While achieving marriage equality is important, this history underscores an equally important interest in defining and preserving spaces for sexual liberty that exist beyond the disciplining domains of the state.
Old corrupt pol facing new federal sentencing after Third Circuit reasonableness rejection
As discussed in this effective local article, which is headlined "Former State Sen. Vincent J. Fumo's resentencing shines spotlight on judge," a high-profile federal resentencing is scheduled for today. Here are some of the particulars:
Former State Sen. Vincent J. Fumo is back in Philadelphia to be resentenced Wednesday, but the real focus will be on a 74-year-old federal judge who must wrestle with how to respond to a rebuke from his bosses.
Ordered by the U.S. Court of Appeals for the Third Circuit to resentence Fumo, U.S. District Court Judge Ronald L. Buckwalter must now decide whether to give Fumo more time or simply fix his legal errors and reinstate Fumo's hotly debated 55-month sentence.
The defense wants the judge to stand pat. The prosecutors want Buckwalter to impose at least 15 years; Fumo has already served two years and two months.
In an e-mail released Friday by his lawyers, Fumo, now 68, cried out at the prospect of a tripling of his sentence. "That's a death sentence for me," he wrote. "This is really scary." From his prison camp in Ashland, Ky., Fumo wrote that the uncertainty about his future had been excruciating. "This is EXTRA punishment!" he wrote in a recent e-mail. "The emotional roller coaster of not knowing is and has been horrible!"...
After a five-month trial that ended in 2009, a jury found Fumo, a Democratic state senator for three decades, guilty on all 137 counts he faced. Jurors convicted him of defrauding the state Senate by using his aides as personal servants and partisan operatives. They said he defrauded a South Philadelphia nonprofit organization, then known as Citizens Alliance for Better Neighborhoods. They said he took luxury yacht cruises and stuck a maritime museum with the bill. And they said he tried to stage a coverup once he learned he was under investigation....
Last month, in the one hearing in the Fumo case after the Third Circuit court's August ruling, Buckwalter, his genial demeanor firmly restored, gave no hint as to what he might do. But he did take steps to dim the spotlight a bit. In 2009, Buckwalter staged the sentencing in the big ceremonial courtroom on the first floor of the federal courthouse, accommodating a larger crowd that way. This time around, Buckwalter has announced, the hearing will be in his regular, smaller courtroom on the 17th floor. The session starts at 10 a.m. Wednesday.
He also told prosecutors and the defense team he might not rule until the next day, giving himself the evening to think through his sentencing and what to say publicly about it.
The problem facing Buckwalter is the yawning gap between 55 months and the recommended sentence under federal guidelines. Unless the judge cuts Fumo a break for such factors as his age or health, prosecutors and the defense now agree the advisory range would be at least 17½ years behind bars. The prosecutors' recommendation -- at least 15 years -- is lower than the guideline.
In 2009, Buckwalter had computed the advisory range to be at least 11 years and then imposed less than half that. But the Third Circuit court told him he failed to properly compute the extent of Fumo's crimes. Prosecutors and defense also now agree that, under the appellate ruling, Fumo's fraud cost taxpayers and two nonprofits about $4 million.
November 9, 2011 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
November 8, 2011
"Child-Abuse Reporting Law Is Challenge to Prosecutors"
The title of this post is the headline of this Wall Street Journal report, which ends with a notable sentencing spin on the stunning sex abuse scandal emerging from the Penn State football program. Here are excerpts:
Ambiguity in a state law on reporting child abuse could complicate the prosecution of Pennsylvania State University administrators in the Jerry Sandusky case.
Tim Curley, Penn State's athletic director, and Gary Schultz, vice president for business and finance, were charged on Monday with failing to report to the authorities allegations that Mr. Sandusky, formerly Penn State's defensive coordinator, had sexually assaulted a minor on campus. Pennsylvania Attorney General Linda Kelly said the university sat on information that could have prevented further abuse. The two men have also been accused of lying to a grand jury about what they knew of the allegations. They have denied the charges. Mr. Sandusky has denied any wrongdoing.
It is unclear if the officials were obligated to report the allegations in the first place, legal experts said. Messrs. Curly and Schultz could argue they aren't covered by the reporting law, which requires professionals "who, in the course of their employment, occupation or practice of their profession, come into contact with children" to report any suspected abuse....
Whether or not the "failing to report" charges survive, the two are each charged with one count of perjury, which carries a punishment of up to seven years in jail. Under sentencing guidelines, they would likely face one to 12 months.... The "failing to report" charge carries a maximum of 90 days in jail and a $200 fine. Some observers wonder why lying to a grand jury about knowledge of child-abuse allegations carries a stiffer punishment than failing to report them in the first place.
"Frankly, we need to take a look at whether the penalties need to be increased for failing to report," said Pennsylvania state representative Todd Stephens (R.), a former assistant district attorney who used to prosecute sex crimes.
Lots of notable new SCOTUS criminal justice action
A busy teaching day has prevented me from blogging about today's busy criminal justice day at the Supreme Court. Fortunately, I can crib highlights from reporting by SCOTUSblog on three events of note:
1. A unanimous AEDPA ruling for the state: "The first opinion of the Term is in Greene v. Fisher. Justice Scalia wrote the opinion for a unanimous Court, which held that for purposes of the Antiterrorism and Effective Death Penalty Act, 'clearly established federal law' is limited to the Supreme Court’s decisions 'as of the time of the relevant state-court adjudication on the merits.'”
2. A hint during oral argument in US v. Jones (transcript here) that GPS tracking might require a warrant: "Midway through a federal government lawyer’s plea Tuesday for unrestricted power for police to use new GPS technology to track cars and trucks on public roads, Chief Justice John G. Roberts, Jr., sketched out just how the Court may well restrict the practice. Despite an unqualified prior statement by the Court that one moving about in public has absolutely no right to expect privacy, the Chief Justice said that such a right might exist, after all, and it could trump the fact that the movement was in public. If the Court can find a way to say just that, police almost certainly would have to get a warrant before using GPS to monitor where suspects go."
3. A suggestion during oral argument in Smith v. Cain (transcript here) that SCOTUS that sometimes prosecutors should stop defending hinky convictions: "There may be many ways for a lawyer to realize that an argument before the Supreme Court is falling flat, but none can top this: a Justice asking if the counsel had ever considered simply forfeiting the case. That is what happened on Tuesday to Donna R. Andrieu, an assistant district attorney in New Orleans, as her argument lay all about her, in shambles."
I am not sure if any today's SCOTUS criminal justice action has huge bite for sentencing fans, although I am going to read the Jones transcript to see if any of the Fourth Amendment GPS debate could have implications for the use of GPS to keep track of persons under criminal justice supervision following a conviction.
You make the call: what is a fitting sentence for Conrad Murray?
The latest celebrity trial resulted yesterday in a guilty verdict, meaning it is now time to start talking about sentencing of Conrad Murray, the doctor deemed criminal responsible for the death of the King of Pop. This AP article sets forth the California state sentencing background:
Dr. Conrad Murray faces a sentence ranging from probation to four years in prison in the death of Michael Jackson. Some of the factors related to sentencing:
— Superior Court Judge Michael Pastor would have complete discretion to decide the sentence. He would receive a probation department report on Murray recommending a sentence. Both prosecution and defense attorneys also would file recommendations. But the decision would be his and his alone.
— The judge could consider that Murray is a defendant with no prior criminal record, a circumstance that might mitigate in favor of probation.
— Because of AB109, a recent California prison realignment bill, Murray probably would not go to state prison. If given a prison sentence, he would most likely serve it in the county jail because of prison overcrowding. There has been speculation that he would be allowed to serve a term of house arrest.
— The penal code calls for a convicted defendant to be sentenced in 20 days, but he could waive that time while his attorneys prepare a motion for new trial and an appeal. He could remain free on bail during that period.
— Murray would lose his medical license.
New ACLU report critical of private prsions
As spotlighted on this webpage, the ACLU late last week released this big new report on the private prison industry. The report is titled "Banking on Bondage: Private Prisons and Mass Incarceration." Here are excerpts from the webpage's summary of the 50+ page report:
The imprisonment of human beings at record levels is both a moral failure and an economic one — especially at a time when more and more Americans are struggling to make ends meet and when state governments confront enormous fiscal crises. This report finds, however, that mass incarceration provides a gigantic windfall for one special interest group — the private prison industry — even as current incarceration levels harm the country as a whole. While the nation's unprecedented rate of imprisonment deprives individuals of freedom, wrests loved ones from their families, and drains the resources of governments, communities, and taxpayers, the private prison industry reaps lucrative rewards. As the public good suffers from mass incarceration, private prison companies obtain more and more government dollars, and private prison executives at the leading companies rake in enormous compensation packages, in some cases totaling millions of dollars....
Part One of this Report traces the rise of the for-profit prison industry over the past 30 years, demonstrating that private prisons reaped lucrative spoils as incarceration rates reached historic levels. Part Two focuses on the supposed benefits associated with private prisons, showing that the view that private prison companies provide demonstrable economic benefits and humane facilities is debatable at best. Part Three discusses the tactics private prison companies have used to obtain control of more and more human beings and taxpayer dollars.
The time to halt the expansion of for-profit incarceration is now. The evidence that private prisons provide savings compared to publicly operated facilities is highly questionable, and certain studies point to worse conditions in for-profit facilities. The private prison industry helped to create the mass incarceration crisis and feeds off of this social ill. Private prisons cannot be part of the solution — economic or ethical — to the problem of mass incarceration.
Texas appeals court stays pending execution to allow DNA testing
As detailed in this CNN report, a "Texas court granted a stay of execution for convicted murderer Henry "Hank" Skinner on Monday, giving Skinner time to pursue DNA testing his lawyers say could prove his innocence." Here are the basics:
Skinner had been scheduled to die by lethal injection Wednesday evening for the New Year's Eve 1993 killings of his live-in girlfriend, Twila Busby, and her two adult sons in the Texas Panhandle town of Pampa. But the state Court of Criminal Appeals halted the proceeding Monday afternoon, ruling that it needed time to review the state's revised law on DNA testing.
In a written statement, Skinner's lawyer, Rob Owen, said the decision "has ensured that Mr. Skinner's request for DNA testing will receive the thorough and serious consideration it deserves."
Skinner, now 49, has strongly denied any involvement in the crime and claims that the DNA analysis of untested evidence will not only show him innocent but help determine the real killer. He came within 45 minutes of execution in March 2010 before the U.S. Supreme Court stepped in and handed him a legal reprieve.
November 7, 2011
Tenth Circuit elaborates on authority to vary from guidelines based on fast-track disparity
A Tenth Circuit panel has today issued a details opinion discussion a district court's authority to vary from the guidelines based on fast-track disparities. The opinion in US v. Lopez-Macias, No. 10-1494 (10th Cir. Nov. 7, 2011) (available here), gets started this way:
In the 1990s, federal prosecutors handling large numbers of illegal re-entry and other immigration offenses developed early disposition or “fast-track” programs in states along the United States border with Mexico. In 2003, Congress endorsed such programs, apparently for border districts and elsewhere, in a broadly-worded provision of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (“PROTECT Act”). Pub. L. No. 108-21, 117 Stat. 650 (2003). Congress specifically instructed the United States Sentencing Commission to promulgate “a policy statement authorizing a downward departure of not more than 4 levels if the Government files a motion for such departure pursuant to an early disposition program authorized by the Attorney General and the United States Attorney.” Pub. L. No. 108-21, § 401(m), 117 Stat. at 675. In response, the Sentencing Commission promulgated U.S.S.G. § 5K3.1: “Upon motion of the Government, the court may depart downward not more than 4 levels pursuant to an early disposition program authorized by the [Attorney General] and the United States Attorney for the district in which the court resides.”
This sentencing appeal presents us with two questions related to the presence of fast-track programs in some federal districts, but not others. The first question is whether a sentencing court in a non-fast-track district has the discretion to consider sentence disparities caused by the existence of fast-track programs in other districts, and, based thereon, vary from the applicable guideline range for a defendant charged with an immigration offense. If so, the second issue is whether the apparently nebulous eligibility requirements for fast-track programs relieve a defendant charged with an immigration offense in a non-fast-track district of the burden of showing entitlement, at least in some sense, to sentencing consistent with a fast-track program. We hold that (1) where the circumstances warrant, a district court in a non-fast-track district has the discretion to vary from a defendant’s applicable guideline range based on fast-track sentence disparities, but (2) a defendant bears the initial burden of showing entitlement, in some sense, to a variance based on fast-track sentence disparities. Given the facts presented here, however, we need not now decide the precise extent of a defendant’s burden.
Basic background on Jackson and Miller, the new SCOTUS juve LWOP cases
This AP story, which reports on the Supreme Court's important decision today to grant review in two cases involving Eighth Amendment challenges to life without parole sentences (basics here), provides this background on the defendants and crimes now to be assessed by the Justices:
The justices will examine a pair of cases from the South involving young killers who are serving life sentences for crimes they committed when they were 14.
Both cases were brought by the Equal Justice Initiative in Montgomery, Ala. The institute said that life without parole for children so young “is cruel and unusual” and violates the Constitution. The group says roughly six dozen people in 18 states are under life sentences and ineligible for parole for crimes they committed at 13 or 14.
Kuntrell Jackson was sentenced to life in prison in Arkansas after the shooting death of a store clerk during an attempted robbery in 1999. Another boy shot the clerk, but because Jackson was present he was convicted of capital murder and aggravated robbery.
Evan Miller was convicted of capital murder during the course of arson. A neighbor, while doing drugs and drinking with Miller and a 16-year-old boy, attacked Miller. Intoxicated, Miller and his friend beat the man and set fire to his home, killing the 52-year-old man. Miller’s friend testified against him, and got life in prison with the possibility of parole.
The picture posted here comes from this EJI slide show of a number of youngsters who were sentenced to LWOP for crimes committed at age 14 or younger. The picture is of Evan Miller, though his age in this picture in not clear and the slide show caption indicates Miller has just turned 18. A later slide in the slide show reports that "over 60% of all 13 and 14-year-old children sentenced to death in prison in the U.S. are people of color."
I will be doing lots of posting with background on these two cases in the run-up to oral argument (which I expect will be in March). In the meantime, here are links to the state court rulings to be reviewed by the Justices: Miller v. Alabama and Jackson v. Hobbs. Both rulings provide a bit more background on the defendants' crimes and both rejected the Eighth Amendment arguments that these defendants have now before the Supreme Court.
"The GOP and Criminal Justice"
The title of this post is the headline of this notable new piece of reporting by Steve Yoder and published at The Crime Report. Here is how the lengthy piece gets started, along with a snippet discussing where the tea party movement fits (or does not fit) into this important political story:
To understand the distance that the Republican Party has traveled on criminal justice, observe the record of Texas’ longest-serving governor. In 2001, just after Rick Perry assumed the job, he vetoed a bill that would have ended the practice of arresting those suspected of class C misdemeanors—fine-only crimes that don’t require jail time, such as traffic offenses.
But fast-forward to 2007. That year, he signed a law allowing police officers to issue citations instead of making arrests for certain class A and B misdemeanors, including marijuana possession. Perry’s reversal came about in part because the state faced a projected shortfall of 17,000 inmate beds.
In Texas and other red states, formerly law-and-order GOP lawmakers are taking the lead in reforming criminal justice systems. That shift is the result of two curves sloping in opposite directions — a dramatic fall in crime rates and exploding state spending on corrections (the second-fastest-growing category of state spending behind Medicaid).
So should a Republican win the presidency, a return to get-tough approaches seems unlikely. Yet ill-targeted budget cuts or sensational crimes linked to reforms still could take policy in the other direction....
Last December, conservative reformers launched a new vehicle for their efforts — Right on Crime, a statement of principles signed by leaders like Newt Gingrich, Jeb Bush, Bill Bennett, and Ralph Reed....
To date, the Tea Party wing ... hasn’t taken a general position on criminal justice policy. “I've not heard the issue discussed much in the movement,” says Mark Meckler, national coordinator for the largest group, the Tea Party Patriots. [Pat] Nolan says there have been no formal discussions between the Right on Crime group and the Tea Party.
Some recent and older related posts:
- When and how will state GOP leaders start cutting expensive criminal justice programming?
- Examining the politics of crime and punishment in modern gubernatorial settings
- Might GOP start debating Texas crime and punishment with Rick Perry in the 2012 race?
- Will Tea Party GOP Debate discuss costly government programs like the drug war and mass incarceration?
- "Right on Crime: The Conservative Case for Reform" officially launches
November 7, 2011 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3) | TrackBack
SCOTUS denies cert (with comments) in Texas capital case raising racial bias issues
As report in this AP article, this morning the Supreme Court "turned away the appeal of Duane Buck, who wanted them to consider whether race played an improper role in his sentencing." With an assist from How Appealing's coverage, here are the details of and links to some of the Justices' comments on this denial of cert:
The Court's denial of certiorari in Buck v. Thaler, No. 11-6391, produced two opinions. Justice Samuel A. Alito, Jr. issued a statement respecting the denial of certiorari in which Justices Antonin Scalia and Stephen G. Breyer joined. And Justice Sonia Sotomayor issued a dissent from the denial of certiorari, in which Justice Elena Kagan joined.
Here is how Justice Altio's statement in Buck starts:
One morning in July 1995, petitioner Duane E. Buck went to his ex-girlfriend’s house with a rifle and a shotgun. After killing one person and wounding another, Buck chased his ex-girlfriend outside. Her children followed and witnessed Buck shoot and kill their mother as she attempted to flee. An arresting officer testified that Buck was laughing when he was arrested and said “[t]he bitch deserved what she got.” 28 Tr. 51 (May 6, 1997).
Buck was tried for capital murder, and a jury convicted. He was sentenced to death based on the jury’s finding that the State had proved Buck’s future dangerousness to society.
The petition in this case concerns bizarre and objectionable testimony given by a “defense expert” at the penalty phase of Buck’s capital trial. The witness, Dr. Walter Quijano, testified that petitioner, if given a noncapital sentence, would not present a danger to society. But Dr. Quijano added that members of petitioner’s race (he is African-American) are statistically more likely than the average person to engage in crime.
Dr. Quijano’s testimony would provide a basis for reversal of petitioner’s sentence if the prosecution were responsible for presenting that testimony to the jury. But Dr. Quijano was a defense witness, and it was petitioner’s attorney, not the prosecutor, who first elicited Dr. Quijano’s view regarding the correlation between race and future dangerousness.
Here is how Justice Sotomayor's dissent in Buck starts:
Today the Court denies review of a death sentence marred by racial overtones and a record compromised by misleading remarks and omissions made by the State of Texas in the federal habeas proceedings below. Because our criminal justice system should not tolerate either circumstance — especially in a capital case — I dissent and vote to grant the petition.
SCOTUS summarily reverses Sixth Circuit reversal of Ohio death sentence
As detailed in this new AP story, in a per curiam opinion this morning the "Supreme Court says a lower court was wrong when it threw out the death penalty and conviction of a man accused of beating his roommate and burying him alive." The ruling came in Bobby v. Dixon, No. 10-1540 (S. Ct. Nov. 7, 2011) (available here), which starts this way:
Under the Antiterrorism and Effective Death Penalty Act, a state prisoner seeking a writ of habeas corpus from a federal court “must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 13). The Court of Appeals for the Sixth Circuit purported to identify three such grievous errors in the Ohio Supreme Court’s affirmance of respondent Archie Dixon’s murder conviction. Because it is not clear that the Ohio Supreme Court erred at all, much less erred so transparently that no fairminded jurist could agree with that court’s decision, the Sixth Circuit’s judgment must be reversed.
Just as the Eighth Circuit is coming to understand that Booker et al. means something for federal sentence review thanks to lots of SCOTUS reversals, I suspect and hope that the Sixth Circuit is coming to understand thanks to rulings like Dixon that AEDPA et al. means something for state death sentence review.
Supreme Court grants cert on two Eighth Amendment LWOP challenges for 14-year-old murderers!
In this post last week, I asked "What might SCOTUS be doing with long-held cases involving 14-year-olds serving LWOP?". This morning we got an answer via the Supreme Court's new order list: getting ready to grant cert and thereby tee up the biggest constitutional sentencing cases for the current SCOTUS Term!!
I do not yet know the details that surround the crimes and administration of LWOP punishments in Miller v. Alabama and Jackson v. Hobbs (which comes from Arkansas). But I do know that that Miller and Jackson are now the two most important sentencing cases now on the Supreme Court's docket for the current Term.
I will have lots and lots and lots to say about these cases in the weeks and months ahead, but I will start by simply affording kudos to the Justices for taking on this important post-Graham issue head-on rather than dodging it for a few more years.
A few recent related posts from just the last few months:
- What might SCOTUS be doing with long-held cases involving 14-year-olds serving LWOP?
- "Graham on the Ground"
- Does Graham create constitutional problems for juve LWOP for murder accomplice?
- "The Supreme Court and the Sentencing of Juveniles in the United States: Reaffirming the Distinctiveness of Youth"
- "Juvenile Criminal Responsibility: Can Malice Supply the Want of Years?"
November 7, 2011 in Assessing Graham and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (4) | TrackBack
"Guidelines Gone Awry"
The title of this post is the headline of this notable new commentary by Alan Vinegrad and Jason Levine. It appears in today's New York Law Journal and gets started this way:
On Oct. 12, the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security held its first hearing on federal sentencing since March 2006. The title — "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years After U.S. v. Booker" — apparently reflects the subcommittee majority's views on post-Booker1 sentencing. Representative James Sensenbrenner, chairman of the subcommittee, stated that he is "deeply concerned" with federal sentencing due to the "increasing frequency of downward departures." Those who commit child pornography or fraud offenses "are in luck," he added, explaining that these crimes have seen particularly high rates of below-guideline sentences.
Proposals to address these concerns have run the gamut. One witness recommended that the Sentencing Reform Act be repealed and the Sentencing Commission abolished. Another proposed that sentencing guidelines once again be presumptively applicable, circumventing Booker by relying on juries to make findings on aggravating factors. And Judge Patti Saris, chair of the Sentencing Commission and Massachusetts district judge, testified about the problems sentencing courts have encountered in the post-Booker sentencing regime and recommended a more robust system of appellate review.
The commission's proposals, although understandable, did not address the real culprit — the guidelines themselves. In several areas, the guidelines, primarily as a result of congressional directives, no longer fairly reflect the varied purposes for which they were created.
Some recent related posts about the House Booker hearing:
- Witnesses identified for House hearing on post-Booker federal sentencing
- Webcast of House hearing on federal sentencing after Booker available
- "Should sentences reflect the will of the public?"
- "Should the USSC publish sentencing data for individual judges?"
- Early reactions to the (too) quick House hearing on post-Booker sentencing
Detailed coverage of Michigan's juve LWOP policies and practices
Michigan's newspaper are collectively doing an amazing job providing both depth and breath to their coverage of Michigan's recent history and continuing practice of sentencing a significant number of serious juvenile offenders to life without the possibility of parole. This lead article in this series, headlined "Why Michigan has more juvenile life sentences than almost any other state," has lots of background and data on this notable sentencing phenomenon, and the piece gets started this way:
They were teenagers once, and did horrible things, or were in horrible places. People died. Sometimes at their hands; sometimes not. But they were present. And for that, they were told they will die, too, in prison.
These are Michigan’s “juvenile lifers,” although most are much older now, sentenced to life in prison without chance of parole. And there are more in this state than in almost any other.
There is Keith Maxey, wounded in a drug theft gone bad. He was unarmed and fled, but another man was killed. A jury found the 16-year-old just as responsible as if he had pulled the trigger. Except the shooter got a lighter sentence.
There, too, are identical twins David and Michael Samel, arrested at 17 for beating a pool hall worker to death. Michael pleaded to a reduced charge and was released in 2009. David took his chances with a jury. He is in the 30th year of life without parole.
And there is Cedric King, 14 when he helped set up a marijuana thief to be killed. Except the court thought he was a year older, and the victim survived. Still, confusion has persisted for years over whether he was given the state’s severest punishment, or something less, a Booth Michigan investigation found.
As a federal judge in Detroit weighs whether such sentences are unconstitutional, reporters from seven newspapers and MLive.com spread out across the state. They interviewed nearly two dozen inmates, including some who committed their crimes before they could drive. They also talked to victims’ families, prosecutors, judges and lawmakers. What they found was regret and bitterness, anger and forgiveness. They also found an issue measured more in shades of gray than black and white.
Ask Shirley Schwartz what her brother would think of imprisoning juveniles for life, and she pauses. “That’s a really difficult question,” she finally says. Her college professor brother was “very liberal,” she recalls, an advocate for his urban neighborhood in Grand Rapids’ Heritage Hill. That was where he met his killers; Jerry Freid died after being beaten to death with a baseball bat during a burglary by a 16- and a 17-year-old.
Ask Schwartz the same question, what she thinks of life sentences for juveniles, and she does not hesitate. “I never believed in the death penalty,” she says. “After this happened, I was pretty sure I could pull the switch. You can afford to be a liberal when it doesn’t touch you.” Told one of her brother’s killers died in prison, Schwartz says one word. “Good.”
Michigan spends more than $10 million a year to house more juvenile lifers than all but one other state, Pennsylvania. In all, 358 inmates are serving life sentences for crimes committed from ages 14 to 17. One in five has been in prison 25 years or longer. The oldest is 67, now that two older lifers have died.
All this could change. A federal lawsuit pending in Detroit claims life without parole for juveniles 17 and younger constitutes cruel and unusual punishment. It seeks mandatory parole reviews when young inmates reach 21, then every five years after. The lawsuit has had early success. A judge in July threw out the claims of eight inmates imprisoned since their teens, ruling too much time had passed. But he allowed one inmate to move forward — Keith Maxey.
Deborah LaBelle, the lawsuit’s lead attorney, says she has met with about 100 of the inmates and corresponded with more than 300. She blames a “toxic combination” in Michigan of juvenile reforms, mandatory sentences and immature judgment she says puts minors at a disadvantage in adult courts.
I find the the stories of— and constitutional challenges to — juve LWOP in Michigan to be especially interesting and important because Michigan was the first US state to abolish the death penalty way back in the 1840s. It seems notable that the state's historic disaffinity for the ultimate punishment of death did not prevented it from embracing its functional equivalent in modern times. Against this backdrop, one can also argue that the Supreme Court's Eighth Amendment rulings in Roper and Graham ought to have even more bite in Michigan: if those rulings are understood dynamically to prohibit giving juvenile offenders the most severe sentences available to adult, then arguably juvenile should not be able to receive LWOP for any crime in any state that does not have capital punishment.
"Moral Imagination in Judging"
The title of this post is the title of this interesting new paper now posted on SSRN by Professor Susan Bandes. Though not discussing sentencing directly, I have long thought that discussion of theories of judging — and particular debates over whether judges are like umpires or should have empathy — are especially interesting when considered through the lens of sentencing law, policy and practice. Here is this paper's abstract:
The debate over the role of empathy in judging has revealed a tenaciously hardy folk conception of judicial deliberation and the judicial role. This concept is most crudely captured in Chief Justice Roberts’ well-known “umpire” metaphor, in which judges leave all their preconceptions and values behind and simply discover and apply the law “as written.” This conception is the legal variant of the hardy philosophical notion that moral reasoning is the process of discovering and applying a system of universal moral laws, and that these laws exist in a realm that transcends individual subjectivity. If laws are universal, timeless and discoverable, then a decision-maker’s attributes, beliefs and values; his or her situatedness in a tradition, a culture, a historical time and place, can only be impediments to rational decision-making.
This notion of rationality has long been a subject of criticism, but few of its critics have had kind words for the role of empathy or moral imagination in the judicial process. Yet empathy and moral imagination implicate questions that go to the heart of longstanding jurisprudential debates. What role should a judge’s prior assumptions and values play in decision-making? What factors are relevant to principled adjudication? How do judges give meaning to spacious, indeterminate terms like due process and equal protection of law? What institutional reforms might serve to improve the quality of the deliberative process? I will argue that the denial of indeterminacy and the myth of the omniscient judge pose significant barriers to the rule of law. The widespread reaction against the role of empathy is based on unrealistic and largely undefended notions of the judicial role and the process of judicial deliberation. More broadly, it reflects assumptions about deliberation that are increasingly out of synch with developing understandings of moral cognition. Empathy and moral imagination, properly understood, are part of the solution to the problem of unaccountable judges interpreting indeterminate law, rather than part of the problem.
November 6, 2011
Add Washington to states with serious marijuana legalization efforts afoot
I have long assumed that California and Colorado would be the two states to watch very closely in 2012 for efforts to legalize marijuana via citizen initiative or some other means. This article from the Seattle Times, headlined "Pro-pot campaign gets big names, deep pockets," suggests that another western state also has a serious chance to end pot prohibition. Here is how the piece starts:
Marijuana legalization in Washington has been an activist's pipe dream for decades, but a new campaign with deep pockets and prominent supporters is poised to force the state Legislature to vote on the issue or send it to the 2012 presidential ballot.
The group, New Approach Washington, is the strongest mainstream campaign to date. Since former federal prosecutor John McKay backed the campaign this summer, supporters with impressive résumés emerged, from wealthy investment analysts and businessmen to white-shoe attorneys and, this week, philanthropist Harriet Bullitt.
But absent from the list are some longtime advocates of legalization. In fact, a growing group of activists is pledging to campaign against New Approach's Initiative 502 if it makes it to the ballot. I-502 would legalize possession of one ounce of marijuana and heavily tax a state-licensed production and distribution chain, from grower to newly created retail pot stores. It would generate an estimated $215 million a year, more than half of it dedicated to law enforcement and treatment.
In a bid to sway skeptical voters, I-502 would continue to ban pot possession for people under the age of 21 and set a new standard for driving while stoned, based on blood tests to detect recently consumed THC. Questions about the science behind that test, as well as the mechanics of the state regulation, drove Vivian McPeak, co-founder of Hempfest, to oppose I-502. "I cannot, in good conscience, support New Approach Washington," he said this week.
Alison Holcomb, campaign director of New Approach, acknowledged the infighting, but said compromise is necessary to woo undecided voters toward a huge shift in social policy. "When you're making big changes, you need to take incremental steps," she said.
Despite headwind from activists, New Approach appears to be succeeding where previous legalization campaigns failed. With more than $1 million in donations, the campaign hired fleets of paid signature-gatherers. Holcomb said the campaign is confident they'll get the required 241,000 signatures and give voters a choice on legalization for the first time.
Reduced crack sentences help reduce of federal prison population for first time in long time
A helpful reader alerted me to the fact that, according to official US Bureau of Prisons data, the federal prison population dropped recently for the first time in a very long time. Based on various year-end report by the Bureau of Justice Statistics and more recent Weekly Population Reports from BOP, here is an accounting of total federal prison populations in past and recent times:
Year end 1992: 80,259
Year end 1996: 105,544
Year end 2000: 140,064
Year end 2004: 180,328
Year end 2007: 197,285
Feb. 2009: 201,280
May 2009: 203,692
June 2010: 211,438
July 28, 2011: 217,444
Oct. 20, 2011: 217,908
Nov. 3, 2011: 217,660
Lots for different factors play a role in the total federal prison population head-count, but I have to assume that the earlier release of some crack offenders based on the new guideline played a big role in this (historic?) federal prison population decline. It will be interesting to see if what has previously always been going up might continue to move down. I somewhat doubt it, but time will tell.