« November 20, 2011 - November 26, 2011 | Main | December 4, 2011 - December 10, 2011 »

December 2, 2011

"Report shows fewer traffic fatalities after states pass medical-pot laws"

The title of this post is the headline of this recent press report, which gets started this way:

The passage of state medical-marijuana laws is associated with a subsequent drop in the rate of traffic fatalities, according to a newly released study by two university professors.

The study — by University of Colorado Denver professor Daniel Rees and Montana State University professor D. Mark Anderson — found that the traffic-death rate drops by nearly 9 percent in states after they legalize marijuana for medical use.  The researchers arrived at that figure, Rees said, after controlling for other variables such as changes in traffic laws, seat-belt usage and miles driven.  The study stops short of saying the medical-marijuana laws cause the drop in traffic deaths.  "We were pretty surprised that they went down," Rees said Tuesday.

The study was posted this month on the website of the Bonn, Germany- based Institute for the Study of Labor and has not yet been peer-reviewed.   Rees said the main reason for the drop appears to be that medical-marijuana laws mean young people spend less time drinking and more time smoking cannabis. Legalization of medical marijuana, the researchers report, is associated with a 12-percent drop in the alcohol-related fatal-crash rate and a 19-percent decrease in the fatality rate of people in their 20s, according to the study.

The study also found that medical- marijuana legalization is associated with a drop in beer sales. "The result that comes through again and again and again is (that) young adults . . . drink less when marijuana is legalized and traffic fatalities go down," Rees said.

December 2, 2011 in Offense Characteristics, Pot Prohibition Issues | Permalink | Comments (10) | TrackBack

Notable op-ed stresses that "The Bill of Rights Doesn’t Come Cheap"

Jeff Fisher, who famously won the landmark Blakely and Crawford cases in the same SCOTUS terms a little less than a decade ago, has this new op-ed appearing in the New York Times under the headline "The Bill of Rights Doesn’t Come Cheap."  Here are excerpts:

On Tuesday, the Supreme Court will hear oral arguments in Williams v. Illinois, the latest in a string of cases addressing whether the Sixth Amendment’s confrontation clause — which gives the accused in a criminal case the right “to be confronted with the witnesses against him” — applies to forensic analysts who produce reports for law enforcement. In other words, should an analyst responsible for, say, a fingerprint report have to show up at trial to face questions about the report?

A logical application of the law produces an easy answer: Yes. The court has defined a “witness against” a defendant as a person who provides information to law enforcement to aid a criminal investigation. That is exactly what forensic analysts do.

Subjecting forensic analysts to cross-examination is also good policy. According to a recent National Academy of Sciences study, forensic science is not nearly as reliable as it is perceived to be. DNA specimens, for instance, are sometimes contaminated; fingerprint, ballistics and even run-of-the-mill drug and alcohol analyses depend on human interpretation and thus are subject to error. Worse, investigations over the past decade have revealed outright incompetence and fraud in many crime labs. So it makes sense to subject the authors of lab reports to cross-examination — a procedure the court has called “the greatest legal engine ever invented for the discovery of truth.”

Despite all this, the Supreme Court has been sharply divided on the issue. In similar cases in 2009 and earlier this year, in which I represented the defendants, Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer and Samuel A. Alito Jr. accepted claims by state governments that, simply put, confrontation in this context costs too much. It is far more efficient, these justices contend, to let analysts simply mail their reports to court. Having to appear at trials pulls them away from their labs, and only occasionally proves more revealing than their written testimony. Hence, these justices maintain, “scarce state resources” are better committed elsewhere.

Given that several states have long required forensic analysts to come to court, one might think that this financial argument would not have gained much traction. Justice Antonin Scalia, in fact, called the argument a “bogeyman.” But the four dissenting justices not only accepted it but deemed it powerful enough to trump the commands of constitutional text and precedent....

[An] assertion [about the potential impact of the case on DNA forensics] in the Manhattan district attorney’s brief reflects — in a particularly dramatic way — some prosecutors’ belief that they can bully the court into refusing to enforce a constitutional guarantee simply by arguing that such enforcement would be an administrative and financial burden.

There’s nothing new here. In the 1963 case of Gideon v. Wainwright, Alabama and several other states filed a brief urging the court to refrain from interpreting the Sixth Amendment’s guarantee of the “assistance of counsel” to require states to provide lawyers to poor defendants accused of felonies. The brief said such a rule would impose on states “an unbearably onerous financial burden to pay the fees of attorneys.”

The court, of course, was not moved. States have adapted. And the Gideon case has become a cornerstone of American jurisprudence. It’s almost impossible now to imagine how a trial could be considered fair without that basic procedural guarantee.

The court should follow this lesson in Williams and refuse to be cowed by prosecutorial bogeymen. It unquestionably costs money to deliver the fundamental demands of justice. But the price is not nearly so high as the states usually claim. And the price of failing to enforce basic procedural rights is, in the long run, much higher.

December 2, 2011 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Examining flat-fee systems for indigent defense

This effective new piece from Stateline.org, which is headlined ""States beginning to rethink indigent defense systems," discusses the rise in flat-fee arrangements for indigent defense systems.  Here are excerpts:

Flat-fee contracting for indigent defense is used in more than a dozen states around the country. Fixed-rate contracts negotiated by governments with private attorneys are a common way for counties and states to save money in hard fiscal times.  But they have drawn criticism from a variety of quarters.  Nevada, Idaho, Michigan and Pennsylvania have all established special commissions to look at indigent defense in general and flat fees in particular....

Attorneys who take flat-fee contracts for indigent defense are often severely overburdened with cases — in one example in Lyon County, Nevada, an attorney who took over a public defense contract just weeks after passing his state bar exam was handling 200 indigent felony and 400 indigent misdemeanor cases during his first year as a practicing lawyer....

Critics argue ... that a flat-fee contracting system for indigent defense may actually cost more in the long run.  “It really is penny-wise and pound-foolish to use a flat-fee compensation system that doesn’t pay lawyers what they need for investigations and casework,” says Virginia Sloan, president of the Constitution Project, a Washington, D.C.-based group that focuses on right-to-counsel issues.  “You end up with a trial that is not done right, which can lead to potentially costly appeals, and you may have to retry the case, which is bad for the victims and very expensive.”...

Mary Schmid Mergler, senior counsel for the Constitution Project’s criminal justice program, says that amid the pressure of overall state and local budget cuts, flat-fee contracting is on the increase.  Still, there has been movement in the other direction. Washington State and Iowa have banned the practice outright.  Oregon uses a flat-fee system, but actively enforces caseload limits at the state level.  Public defenders in Oregon are limited to handling a set number of cases within the state-awarded contract, and every six months the caseloads are reevaluated.

December 2, 2011 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

December 1, 2011

Two state govs request that feds reclassify pot to ease medical use

Today's New York Times has this notable article, headlined "2 Governors Asking U.S. to Ease Rules on Marijuana to Allow for Its Medical Use," reporting on a development sure to raise still more debate about federalism issue and pot policy. Here are the basics from the start of the article:

The governors of Washington and Rhode Island petitioned the federal government on Wednesday to reclassify marijuana as a drug with accepted medical uses, saying the change is needed so states like theirs, which have decriminalized marijuana for medical purposes, can regulate the safe distribution of the drug without risking federal prosecution.

The move by the governors — Christine Gregoire of Washington, a Democrat, and Lincoln Chafee of Rhode Island, an independent who used to be a Republican — injected new political muscle into the long-running debate on the status of marijuana.  Their states are among the 16 that now allow medical marijuana, but which have seen efforts to grow and distribute the drug targeted by federal prosecutors.

“The divergence in state and federal law creates a situation where there is no regulated and safe system to supply legitimate patients who may need medical cannabis,” the governors wrote Wednesday to Michele M. Leonhart, the administrator of the Drug Enforcement Administration.

The letter from the governors can be accessed at this link.

December 1, 2011 in Drug Offense Sentencing, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

"Pope seeks end to death penalty"

The title of this post is the headline of this AP story, which gets started this way:

Pope Benedict XVI voiced support Wednesday for political actions around the world aimed at eliminating the death penalty, reflecting his stance as an opponent of capital punishment.

He made the comments during his weekly public audience to participants at a meeting being promoted by the Catholic Sant'Egidio Community on the theme "No Justice without Life."  He said he hopes "your deliberations will encourage the political and legislative initiatives being promoted in a growing number of countries to eliminate the death penalty."

December 1, 2011 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (6) | TrackBack

Once again, I would like to thank the ABA and the criminals and their lawyers...

12CVRimageAs I have said before and will say again, it is always an honor just to be nominated.  But, since the ABA's Blawg list nominations are not generally made public, it is even more exciting to win again -- for the fifth year in a row, I believe -- a (coveted?) place on the ABA's list of the best legal blogs. 

This report from the ABA Journal, titled "The 5th Annual ABA Journal Blawg 100," reports the background and the list:

On our 5th birthday, you’ll see some familiar faces at the party: bloggers who’ve been on our list in years past.

But 2011 also brought along a lot of newcomers, and we’re delighted that so many RSVP’d our invitation to nominate their favorites.  We received more than 1,300 Blawg Amici this year, and that made for a hard time narrowing the field to 100 law blogs in 12 categories.

As usual, we couldn’t help mixing things up a bit.  In print, you’ll find the blogs in alphabetical order, color-coded by category. And as always, you can vote for your favorites online through Dec. 30 at ABAJournal.com/blawg100.

Here is how this site gets described:

Sentencing Law and Policy: sentencing.typepad.com

Ohio State law professor Douglas Berman notes congressional hearings, scholarship and general trends related to sentencing, and sometimes handicaps the sentences that can be anticipated by those convicted in high-profile criminal cases. Unlike most criminal law bloggers, he writes with a fairly objective tone.

Speaking fairly objectively I kind of like this description of my writing: "with a fairly objective tone."  I wonder if all readers would agree.  And, via this ABA page, one can click through to see a bunch of other criminal law blogs making the list that, apparently, write in a fairly subjective tone.

December 1, 2011 in On blogging | Permalink | Comments (26) | TrackBack

"Rajaratnam Asks Circuit to Allow Him to Stay Free Pending His Appeal"

The title of this post is the headline of this article from today's New York Law Journal, which gets started this way:

Counsel for Raj Rajaratnam made a plea to keep him out of prison yesterday, arguing he should remain free on bail because he has a real shot of having his insider trading convictions vacated by the U.S. Court of Appeals for the Second Circuit.

Five days before the Galleon Group hedge fund founder is set to begin serving an 11-year prison sentence, attorney Patricia A. Millett told the Second Circuit that the prosecution should pay the price for omitting from its wiretap warrant application in 2008 that it had been interviewing witnesses, obtained millions of documents and had even deposed Mr. Rajaratnam himself while trying to build its case.

UPDATE:  This Reuters piece updates this story.  It is headlined "Rajaratnam loses bid to avoid prison during appeal."

December 1, 2011 in Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Conrad Black's latest harsh attack on the US criminal justice system

Notable federal felon Conrad Black has this potent new commentary on the US criminal justice system, which notably appears in the National Review Online. The piece is headlined "Justice Denied: The U.S. legal system is a disgrace," and here is how it starts and ends:

In the current issue of Commentary, there is a symposium of 43 knowledgeable people who discuss whether they are optimistic or pessimistic about America.  In the current edition of The New Criterion, the eminent British historian Andrew Roberts, now a U.S. resident, assesses similar points in a lead essay about how benign America has been as the superpower, and how keenly it will be missed if superseded in that role by China.

Nowhere in either interesting section of either magazine is the appalling state of the U.S. justice system mentioned as symbolic or indicative of the country’s problems.  Very adequate attention is given to the uncompetitive deterioration of American public education, to fiscal irresponsibility, and certainly to the shortcomings of popular culture and the media.

I try to rise above the fact, known to most readers, that I write from a federal prison where I have been sent for a total of 37 months, for crimes I did not commit, and after all 17 counts against me were abandoned, rejected by jurors, or vacated by a unanimous U.S. Supreme Court.  I have amply described my legal travails elsewhere and refer to them here only as disclosure.

The United States has six to twelve times as many incarcerated people per capita as Australia, Canada, France, Germany, Japan, and the United Kingdom, all prosperous democracies.  The U.S. has a much higher percentage of successful prosecutions, a lower hurdle to clear to prosecute (with rubber-stamp grand juries), a greater range of offenses, heavier sentences, and a higher recidivism rate than any of those other countries.

As Sen. Jim Webb of Virginia wrote in his essay “Criminal Injustice” two years ago, either those other countries are less concerned with crime than the U.S., or Americans are more addicted to criminal behavior — both preposterous suggestions — or the U.S. justice system is not working well.

There are 48 million people in the United States with a “record,” many of them based on ancient DUIs or disorderly behavior decades ago at a fraternity party and other unstigmatizing offenses, but still a severe inconvenience to them when they travel abroad or their names are fed to almost any information system; and millions have had their lives effectively ruined.  The U.S. has 5 percent of the world’s population, 25 percent of the world’s incarcerated people, and 50 percent of the world’s lawyers, who invoice almost 10 percent of U.S. GDP (around $1.4 trillion annually).  In the mid-1970s, the U.S. had about 650,000 people in mental institutions; today, it has only 50,000.  Prisoners cost $40,000 per year to detain, and some states can no longer afford it.  The conditions of hundreds of thousands of prisoners are grossly and shamefully inhumane. (My own are not.)

The Fifth, Sixth, and Eighth Amendment rights of assurance against capricious prosecution, due process, no seizure of property without due compensation, an impartial jury, access to counsel, prompt justice, and reasonable bail, don’t exist.  The ubiquitous plea bargain is just the wholesale subornation or extortion of inculpatory perjury in exchange for immunities or reduced sentences (often with people who are threatened, although there is no evidence against them).  Assets are routinely frozen on the basis of false affidavits in ex parte proceedings to deny defendants the ability to defend themselves.  Those who do exercise their constitutional right to a defense receive three times as severe a sentence as those who plead guilty; 95 percent of cases are won by prosecutors, 90 percent of those without trial.  The public defenders have no resources to conduct a serious defense and are usually just Judas goats of the prosecutors conducting the defendants to legal destruction.

Sentences are absurd: A marijuana deliverer is apt to be sentenced to 20 years in prison. There is minimal effort to rehabilitate nonviolent offenders.  Private-sector firms are increasingly active in the prison industry and they and the militantly unionized correctional officers, almost all unskilled labor, constantly lead public demands for more criminal statutes and more draconian penalties.

Unfortunately, the immense surge in American incarceration rates is largely credited with the decline in crime rates, though better police work, more general use of video cameras at potential crime sites, an aging population, and, for a long time, improving living standards, were responsible....

The state of American justice is shameful and unspeakable, literally so to judge from the hear-no-evil, see-no-evil, speak-no-evil insouciance of Commentary’s blue-ribbon high table of contemporary critics.  Many of them attacked the nihilistic, self-destructive anti-Americanism of the American campuses, absolutely correctly.  But if they noticed the fraudulence that has metastasized through the American legal system, their critique would carry greater weight.

The moral soul of America is rotting away and the only defense an individual American has is numbers: The prosecutocracy cannot send more than 1 percent of the entire adult population to prison at any one time, if only for budgetary reasons.

The first line of defense of society as a whole are those whose vocation is to study and espouse public policy.  Failure on this scale will make them complicit in this vast crime of the state, if it continues.  I am listening for Jefferson’s firebell in the night and all I hear is Gertrude Stein’s sound of one hand clapping.

Wowsa!  I assume that Bill Otis and perhaps other readers will perceive these assertions by Conrad Black to be just another anti-criminal-justice rant from another hater of America. That may be accurate, but I think Bill and others tend to assume that these folks come to hate America from the left and only get attention from liberal-leaning media. But I do not think Conrad Black is fairly considered a lefty, nor do I think the National Review can be fairly blasted for being part of the left-leaning media.

December 1, 2011 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (13) | TrackBack

November 30, 2011

Feds asking for prison term of 15 to 20 years for Rod Blagojevich

As detailed in this local press account, "federal prosecutors asked a judge Wednesday to sentence convicted former Gov. Rod Blagojevich to as much as 20 years in prison."   Here is more from the press report on the feds' sentencing filing:

“In light of Blagojevich’s extensive corruption of high office, the damage he caused to the integrity of Illinois government and the need to deter others from similar acts, the government suggests a sentence of 15 to 20 years imprisonment is sufficient but not greater than necessary,” prosecutors said in a court filing Wednesday.

Blagojevich, 54, who was convicted of 18 corruption charges, is set to be sentenced next week. His sentencing hearing will be Dec. 6 and 7 before U.S. District Judge James Zagel. Blagojevich’s lawyers have said they will seek probation. They’re expected to file their suggested sentence later Wednesday.

Blagojevich was found guilty of charges that included allegations he tried to sell or trade an appointment to the U.S. Senate seat vacated by President Barack Obama. Prosecutors said Blagojevich deserves stiffer sentences than the 6 1/2 years given to former Gov. George Ryan and the 10 years given to Tony Rezko, a former Blagojevich adviser and onetime top campaign fund-raiser. They noted that Rezko got that stiff term even though he didn’t hold public office, wasn’t involved in the attempted sale of the Senate appointment in 2008 and immediately turned himself in to begin serving his prison time after his 2008 conviction....

Blagojevich needs to be hit with a tough sentence to deter others, prosecutors said, pointing out that the six and a half years given to Blagojevich’s predecessor, Ryan, did little to persuade Blagojevich not to misuse his public office. “The six-and-a-half-year sentence did nothing to stop Blagojevich, as the very next governor, from engaging in significant and ongoing bribery, extortion, and fraud,” prosecutors wrote.

The 21-page Government Sentencing Memorandum in this case is available at this link.

UPDATE: I am still looking for a copy of the sentencing filing of the defense team, but this local article, headlined "Blago Defense Asks for Leniency in Sentencing," reports on some of its points:

[D]efense lawyers argued that Blagojevich “received no monetary gain, and caused no public harm,” and that he deserved a lenient sentence.

Defense attorneys said by their analysis of federal sentencing guidelines, Blagojevich faced at the extreme, 41 to 51 months in prison.  Prosecutors argued that the correct range should be 30 years to life, but suggested a term of between 15 and 20 years behind bars.

"Mr. Blagojevich followed the law as he understood it to be," wrote defense lawyer Carolyn Gurland. "Mr. Blagojevich’s profound devotion to his wife and young children, and the devestation that his absence will cause his family, provide further support for the exercise of leniency in his sentencing."

For their part, prosecutors cited what they called Blagojevich’s "extensive corruption in office, the damage he caused to the integrity of Illinois government, and the need to deter others from similar acts."

I have highlighted a segment of the article which reports the wildly disparate guideline calculations being peddled by the adversaries in this case: the feds think the guidelines recommend  30 or more years, while the defense say they recommend less than 4.3 years.  (In a future post, I will discuss in more detail why this guideline-calculation reality itself highlights that an undue focus or concern with disparities resulting from departures or variances tends to distract and distort any truly sophisticated analysis of modern federal sentencing realities.) 

ANOTHER UPDATE: Thanks to one of my students, I have now found here a copy of the defense filings for former Gov. Rod Blagojevich. 

November 30, 2011 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

"Racial Critiques of Mass Incarceration: Beyond the New Jim Crow"

The title of this post is the title of this new piece now available via SSRN from Professor James Forman Jr. Here is the abstract:

In the five decades since black Americans won their civil rights, hundreds of thousands have lost their liberty.  Blacks now make up a larger portion of the prison population than they did at the time of Brown v. Board of Education, and their lifetime risk of incarceration has doubled.  Mass incarceration’s racial dimensions have led an emerging group of scholars to call the American criminal justice system a new form of Jim Crow.  This Article examines the New Jim Crow analogy.  I begin by pointing out that the analogy is extraordinarily compelling in some respects — for example, the analogy effectively draws attention to the injustices created by a facially race-neutral system that severely ostracizes offenders and stigmatizes young, poor black men as criminals.

But despite its contributions, the Jim Crow analogy ultimately leads to a distorted view of mass incarceration.  First, the Jim Crow analogy oversimplifies the origins of mass incarceration by highlighting the role of politicians seeking to exploit racial fears while minimizing other historical factors.  Second, the analogy has too little to say about black attitudes towards crime and punishment, masking the nature and extent of black support for punitive crime policy.  Third, the analogy’s exclusive focus on the War on Drugs diverts our attention from violent crime — a troubling oversight given the toll that violence takes on low-income black communities and the fact that violent offenders make up a plurality of the prison population.  Fourth, the Jim Crow analogy obscures the fact that mass incarceration’s impact has been almost exclusively concentrated among the most disadvantaged African-Americans.  Fifth, the analogy draws our attention away from the harms that mass incarceration inflicts on other racial groups, including whites and Hispanics.  Finally, the analogy diminishes our understanding of the particular harms associated with the old Jim Crow.

November 30, 2011 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Could Setser case be a SCOTUS sleeper rather than a sentencing snoozer?

This morning, the Supreme Court is to hear oral argument in a sentencing case, Setser v. United States, which the folks at SCOTUS blog have effectively previewed here.  As that preview explains, at issue "is whether a federal district court may direct that a criminal defendant’s sentence run consecutively with a yet-to-be-imposed sentence that the defendant is expected to receive for a state crime."

I wrote up a preview of the Setser case for the ABA's SCOTUS Preview publication, and I tried to figure out how the statutory construction issue in the Setser case might have broader implications for sentencing law and policy.  I failed, because resolution of the technical statutory issue that produced the circuit split at issue in Setser seems very unlikely to have implications for a broad range of cases.  Maybe others (or today's oral argument) can suggest how Setser could be a sentencing sleeper; for now, I see it as more of a sentencing snoozer.

UPDATE:  The transcripts from today’s oral argument in Sester is now available at this link.  In addition, I received from a kind reader via e-mail this insightful explanation concerning who may care a bunch about Sester:

I suspect that district judges in districts [with federal prisons] would appreciate a decision in Setser that will provide some much needed guidance in consecutive vs. concurrent sentence situations.

I don't know whether Setser will implicate the Bureau of Prisons at all, but the BOP, via 18 U.S.C. § 3621(b) and its internal pro nunc tunc regulations, has a large amount of discretion in determining how sentences from different jurisdictions are served.  It is not uncommon for federal inmates with state and federal sentences to file 2241 petitions when the BOP fails to honor the judgment from one of the sentencing judges that the specific sentence from that judge be served concurrent to the sentence from the judge in the other jurisdiction. I've seen cases where, for example: (1) An inmate had been serving state and federal sentences consecutively when both the state and federal sentencing judges called for concurrent sentences, and (2) the reverse fact pattern of Setser: A case where an inmate was first given a state sentence that was ordered to be served consecutively to a not-yet imposed federal conviction and sentence.... [O]n behalf of the judges and clerks who deal with these issues, hopefully the eventual Setser opinion will provide some guidance on such fact patterns.

November 30, 2011 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Veto debate follows NC legislature's vote to repeal state's capital Racial Justice Act

As reported in this local article from North Carolina, debate over the repeal of the state's controversial Racial Justice Act has now shifted from the state's legislature to the state's Governor's office.  Here are excepts of the story:

The state's prosecutors and Republican lawmakers rejoiced at Monday's Senate vote to repeal the heart of the Racial Justice Act.  Now attention turns to the governor.  Will she veto it or not?

In 2009, Gov. Bev Perdue signed the bill into law in a public ceremony flanked by key Democratic lawmakers, members of the African-American caucuses in the General Assembly and the NAACP.  She proclaimed that the new law, which allowed convicted murderers to use statistical arguments to get off death row, would help prevent racism in prosecution and sentencing.

Perdue, speaking at an event Tuesday in Charlotte, did not tip her hand. She said she would be talking to crime victims' families. "I'm a real strong supporter of the death penalty," Perdue said. "We should not allow discrimination based on race, poverty or any other factor to infect the criminal justice system. I'm thinking about it hard."

Even though the governor faces a tough re-election bid next year and wouldn't want to appear soft on crime, supporters of the Racial Justice Act are cautiously optimistic that will she stay firmly in the territory she staked out two years ago.

House Minority Leader Joe Hackney, in a statement Tuesday, said Perdue probably would veto the bill.  Democratic Sens. Doug Berger of Youngsville and Floyd McKissick of Durham said Tuesday they are optimistic she will use her veto stamp.  "We're fairly sure she's going to veto," NAACP attorney Al McSurely said. "Her support was critical in getting (the Racial Justice Act) passed."

Perdue has 30 days to decide.... If she vetoes, then the General Assembly probably will be ripe for another override fight.  It's not certain legislators can muster the votes, however.  The Senate might not have any trouble overriding the veto....  A party-line vote with everybody present would give senators more than enough to override.  

It would be harder in the House, where 72 votes are needed. The House mustered 64 Republican votes in favor of the bill, while all 52 Democrats voted against it; three Republicans were absent. House GOP leaders would need a scenario in which they retain all those votes and perhaps woo all five renegade Democrats who have broken ranks with their party on other issues. That would eke out 72 votes, but it's unlikely.

Campaigns are under way already to sway the governor.  The NAACP called on her to veto and also called on the House Democrats to stick together to resist an override.  People of Faith Against the Death Penalty issued a public statement Tuesday night calling on Perdue to veto.

The N.C. Conference of District Attorneys has been working for a long time to take the statistical evidence wording out of the Racial Justice Act.  The prosecutors will ask Perdue to sign the bill, SB9, Executive Director Peg Dorer said Tuesday.

Some older and newer related posts on the North Carolina Racial Justice Act: 

November 30, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Some speculations about the great crime decline in Florida

This local article, headlined "Florida crime keeps falling, and experts and law enforcement search for why," provides some interesting local perspectives on the decline of crime in the Sunshine State. Here are excerpts:

Although Florida's economy continues to sputter four years after the start of the Great Recession, the state's financial and unemployment woes can't slow down one impressive trend: Crime continues to plunge.

Crime in Florida has plummeted nearly 33 percent since 1999, including nearly 13 percent since shortly after the recession began in late 2007.  Tampa Bay's crime rate also has fallen during that time — about 25 percent in Hillsborough, 8 percent in Pinellas and 14 percent in Pasco.

A declining crime rate in times of economic despair — especially when law enforcement budgets are shrinking as officers fight a burgeoning prescription drug abuse epidemic — seems counterintuitive.  But the crime drop is fairly consistent nationwide, and experts even say the trend is occurring globally.

Although no one can say for sure why crime is lessening, some theories are coming into focus: Technology is helping police prevent crime.  The population is getting older.  Even low inflation — of all things — is likely playing a role....

"The world we live in is much different than decades ago," said Eric Baumer, a criminologist at Florida State University. "Life has changed a lot."...  People tend to connect economic disadvantage to crime, Baumer said.  "But the truth is, the economic downturn can have these countervailing effects," he said.  For example, he said, when people are out of work, they tend to spend more time at home.  That may decrease the opportunity for the average thief who wants to break in....

Still, it's not hard to see why people may have a perception of high crime.  "You can show people stats all day long," said Clearwater police Chief Tony Holloway, "but the next day they may see someone out there selling drugs. …From their perception, they still see crime, so for them it can't be down."

Zoom out, though, and the picture looks quite different.  Thus far, crime in the state is down 2 percent from last year, according to the Florida Department of Law Enforcement, which recently released data from the first half of this year.

In Tampa Bay, it fell even more.  There was a drop of more than 10 percent in Pinellas, nearly 15 percent in Hillsborough and 6 percent in Pasco County.  Hernando was the only local county to see an increase — about 13 percent.

Law enforcement officials make it clear they're happy with numbers like these. But even they admit they're not sure exactly what's behind them.  "I think it's got to be a combination of factors," said St. Petersburg police Chief Chuck Harmon.  "I just don't think that anybody knows what they all are."

Holloway said one reason may be that police have become more attuned to patterns and cycles in crime.  For example, many departments beefed up patrols around malls and shopping centers this weekend since burglaries typically rise around Thanksgiving.  The Florida Highway Patrol put more troopers on the roads.

Police also have many more tools at their disposal.  Departments these days routinely report that Internet and social media sites are helping them solve crimes.  And many use data to track and even predict crime.  In St. Petersburg, officers a few years ago started monitoring the movements of the city's most notorious juvenile and adult criminals.  It has led to a decrease in auto thefts, officials said.  "I think we're getting smarter," Holloway said.

November 30, 2011 in Data on sentencing | Permalink | Comments (1) | TrackBack

Justice for Jackson?: Conrad Murray get maxed out (sort of?) with four-year sentence

As reported in this CNN piece, "Conrad Murray has been sentenced to four years in jail for involuntary manslaughter in connection with Michael Jackson’s 2009 death." Here are the details:

On Tuesday morning, Judge Michael Pastor handed down the maximum sentence possible for the charge. It is unclear how much of the four-year sentence Murray will actually end up serving in Los Angeles County Jail, but he was credited 46 days for time served and good behavior.

Prosecutor David Walgren had sought incarceration because he argued that Murray submitted Jackson to a “pharmaceutical experiment” and “the defendant was playing Russian roulette with Michael Jackson’s life every single night.”

He also focused on one of the comments Murray made in a documentary that aired after the trial. In it, according to Walgren, nine days before he was convicted, Murray was asked if he felt guilty for what he had done and he responded, “I don’t feel guilty because I did not do anything wrong.”...

Defense attorney Ed Chernoff focused on Murray’s life prior to his two months as Jackson’s personal physician, pointing out all of the other people he helped and saved during his career in medicine. He submitted 35 letters of recommendation and support from friends, family and former patients. “Does any of that matter to the court at all?” Chernoff asked.

In delivering the sentence, Pastor said that Murray’s treatment, or lack of treatment, of Jackson is more significant than the good deeds he did prior to that. He said one piece of evidence that stood out to him was the recording Murray made of Jackson apparently under the influence of drugs that was played early in the trial, which he called a “horrific violation of trust.”

He also said it did not appear from Murray’s comments that he had any remorse about what happened and that makes him “dangerous.” “Why give probation to someone who is offended by the whole idea that that person is even before the court?” he asked.

He said the maximum punishment was necessary because the “experimental medicine” and “money-for-medicine madness” that Murray engaged in with Jackson cannot be tolerated.

The issue of restitution to Jackson’s family will be dealt with at a later hearing because the judge and defense wanted more information about the more than $100 million that prosecutors were seeking. 

November 30, 2011 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

November 29, 2011

Texas now has "lifer" row larger than its death row

As reported in this new Houston Chronicle piece, which is titled "Nearly 400 capital murder convicts get life without parole," Texas after just a few years after creating LWOP as an alternative to the death penalty now has more inmates slated to die in prison from old age rather than from a trip to the executions chamber. Here are the details, which include some very interesting statistics:

In six years, Texas has built a "lifer's row" filled with 398 prisoners who will never be released through parole - a fast-growing group that already has outpaced the number of inmates serving a death sentence in the Lone Star State, a Houston Chronicle analysis of prison records shows.

Harris County prosecutors, who historically have led the state in seeking death sentences, have so far also been the most aggressive in pursuing capital murder charges and obtaining mandatory life without parole sentences in capital cases.

Texas became the last of the death penalty states to approve life without parole in September 2005, after Harris County prosecutors dropped their opposition to the change. The law applies only to offenders convicted of capital murder.

For the first time, it gave jurors and prosecutors a non-death sentence that guaranteed someone convicted of killing a child, killing multiple victims, slaying a police officer or committing another capital crime could not be released on parole.

In all, 110 Harris County offenders have been sentenced to life without parole since the law took effect, compared with 11 death sentences. "Harris County is a tough law and order county on the really bad actors. That hasn't changed," said First Assistant District Attorney James Leitner.

The change has led to fewer death sentences in Texas and nationwide. Fifty-one people were sentenced to life without parole in Dallas County. Tarrant County had 26; Bexar County had 22.

Texas offenders convicted of capital murder were six times more often sentenced to life without parole than to death: 66 people got death sentences compared with the 398 lifers. The life without parole law has been used in about one third of all Texas counties at least once, the Chronicle's analysis of state prison records shows....

From September 2005 to September 2009, Texas allowed life without parole prison sentences for juvenile offenders who had been certified to stand trial as adults. The law was subsequently changed to bar such punishment. By then, 21 people sentenced for crimes they committed before age 18 had been sentenced, including eight from Harris County....

Seventeen women are serving life without parole. Two were juvenile offenders. One is Ashley Ervin, a former Harris County area honor student sentenced for her role at 17 as the driver for a murderous robbery ring led by older males....

Marc Mauer, executive director of The Sentencing Project, a nonprofit critical of the national explosion in such sentences, argued the offenders are more likely to come from impoverished minority groups who sometimes get unfairly targeted by police. "We see that around the country that the race differences in life sentences are generally more extreme," he said. So far in Texas, 76 percent of the state's "lifers" are minorities, compared with 70 percent of death row inmates.

November 29, 2011 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Noting some notable denials of cert by SCOTUS on gun rights and CP restitution

As regular readers know, I was giddy yesterday concerning two cert grants by the Supreme Court on sentencing issues (background here): the Justices took up Apprendi's applicability to fines in Southern Union (basics here) and the application of the Fair Sentencing Act in two "pipeline" crack cases (basics here).  However, as well reported in a pair of articles by Warren Richey of the Christian Science Monitor, the Justices denied cert on a couple of notable criminal justices issues as well:

Given that the current SCOTUS Term is already chock full of hot-button issues, I am not very surprised nor very troubled that the Justices decided not to take up new gun and kiddie porn cases.  Still, on both fronts, the only real question seems to be when and how, not whether, these matters will garner Supreme Court review.

November 29, 2011 in Criminal Sentences Alternatives, Gun policy and sentencing, Procedure and Proof at Sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (0) | TrackBack

"A Crisis in Federal Habeas Law"

The title of this post is the title of this new piece by Professor Eve Brensike Primus, which is now available via SSRN. Here is the abstract:

Everyone recognizes that federal habeas doctrine is a mess. Broad change is necessary, but to be effective, such change must be animated by an overarching theory that explains when federal courts should exercise habeas jurisdiction. In their recent book, "Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ," Professors Nancy King and Joseph Hoffmann offer such a theory.  Drawing on history, current practice, and empirical data, Professors King and Hoffmann find unifying themes that not only explain our past use of the Great Writ but also give guidance regarding how we should interpret the writ going forward.

Habeas for the Twenty-First Century is nuanced while still being thorough, and it explains fairly technical material in an engaging and interesting way. Its breadth, however, is also the source of one of its problems.  Professors King and Hoffmann want both to identify the overarching themes that can explain habeas in all of its diverse forms and to make concrete proposals for reform that have a reasonable chance of being adopted.  These two goals, however, are often in tension. What is politically feasible is not always consistent with their interpretive approach.  Rather than admit this tension and explain why they choose one goal over the other, Professors King and Hoffmann sometimes stretch their definition of what constitutes a crisis worthy of habeas intervention in an attempt to make it fit their reform proposals.

This is particularly true in the context of their approach to federal review of state criminal convictions.  In that context, King and Hoffmann use history to argue that habeas’s primary role is to intervene whenever a federalism crisis places the balance of power between the federal and state governments in jeopardy.  Such a federalism crisis exists, they say, only when a state rejects federal law because it is federal.  Nonetheless, King and Hoffmann’s own proposal for reform contains provisions that would allow state prisoners to file habeas claims, such as claims alleging actual innocence, even when there is no evidence that the states are hostile to these claims because of their federal nature. So if King and Hoffmann’s proposals for reform are sound, their statement of the circumstances in which federal habeas review is appropriate is too restrictive.

In this Review, I will argue that King and Hoffmann should expand their concept of what constitutes a crisis worthy of federal habeas intervention to include situations in which a state systematically violates criminal defendants’ federal rights or systematically fails to provide defendants with adequate opportunities to vindicate those rights.  A state’s entitlement to autonomy and respect is at its nadir when the state routinely flouts federal law, whereas the federal interest in using habeas review to catalyze structural reform in such a case is at its zenith.

Some related posts:

November 29, 2011 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

November 28, 2011

Some notable responses to recent DOJ post-Booker disparity complaints

Regular readers with a special interest in federal sentencing may recall this posting from a few weeks ago noting a public speech by Assistant Attorney General Lanny Breuer in which he lamented increasing federal sentencing disparity and asserted that "many prosecutors, defense lawyers, and judges agree that more and more, the length of a defendant’s sentence depends primarily on the identity of the judge assigned to the case, and the district in which he or she is in."  I have gotten a sense that this speech has generated some extra amounts of notable buzz in the federal sentencing world, and it has also now also generated some notable responses.

One such response comes from Mary Price, the Vice President and General Counsel of Families Against Mandatory Minimums (FAMM), via this commentary piece at the website Main Justice.  The piece carries the headline "It's Not the Judges," and here are the four numbers points that appear in this piece:

  1. Prosecutors share responsibility for different guideline adherence rates among districts
  2. Different federal districts are just that: different
  3. Flawed guidelines, not flawed judges, drive variance rates
  4. Sentencing rules drive racial disparity

Another response comes via a letter put together by a set of federal public defenders which can be downloaded below and starts this way:

As Federal Public Defenders, we read with interest the remarks you made before the American Lawyer/National Law Journal Summit in Washington, D.C. on November 15, 2011. We were heartened to see that you believe, as we do, that the significant prison population in both federal and state facilities is a tremendously important issue for all legal practitioners, whether or not they practice criminal law. But we read with some concern your statements regarding sentencing disparities between federal districts, particularly the three districts in which we serve....

We write because, as experienced practitioners in the districts you mention, we disagree that the disparities you identify have much at all to do with the sentencing judges involved.  Instead, we believe that these disparities have far more to do with the types of cases that arise in each district, and the prosecution policies that local federal prosecutors have chosen to address these cases.

Download Letter to Lanny Breuer from defenders

November 28, 2011 in Booker and Fanfan Commentary, Booker in the Circuits, Federal Sentencing Guidelines, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2) | TrackBack

Lots of details on the new SCOTUS sentencing cases

Via SCOTUSblog at this post, I can provide here more information and links to key documents in the exciting new sentencing cases taken up by the Supreme Court this morning:

[T]he Court had been holding one of today’s granted petitions, Hill v. United States, to be considered alongside several other petitions that raise the same issue:  whether the Fair Sentencing Act (which reduced the crack-powder sentencing differential) applies in an initial sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date.... Hill has been consolidated with Dorsey v. United States (case page forthcoming), for a total of one hour of argument....

Hill v. United States (Granted)

Docket: 11-5721
Issue(s): Whether the Fair Sentencing Act of 2010 applies in an initial sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date.

Certiorari stage documents:

 

Southern Union Company v. United States (Granted)

Docket: 11-94
Issue(s): Whether the Fifth and Sixth Amendment principles that this Court established in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, apply to the imposition of criminal fines.

Certiorari stage documents:

Recent related posts on the new SCOTUS cases:

November 28, 2011 in Blakely in the Supreme Court, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Notable Ninth Circuit ruling questioning residency restriction as supervised release condition

While on the road for the holiday weekend, I missed a notable Ninth Circuit ruling handed down on Wednesday concerning the creation of a residency restriction as a supervised release condition for a sex offender. The panel opinion in US v. Rudd, No. 10-50254 (9th Cir. Nov. 23, 2011) (available here), gets started this way:

William Newton Rudd appeals the district court’s imposition of a residency restriction as a special condition of supervised release, following his conviction and sentencing for one count of violating 18 U.S.C. § 2423(c), which prohibits U.S. citizens from traveling to a foreign country and engaging in illicit sexual conduct.  The special condition prohibits Rudd from residing “within 2,000 feet of school yards, parks, public swimming pools, playgrounds, youth centers, video arcade facilities, or other places primarily used by persons under the age of 18.”  We have jurisdiction pursuant to 18 U.S.C. § 3742.  Because the district court did not provide any explanation for its imposition of the 2,000 foot residency restriction, and none is apparent from the record, the district court committed procedural error.  Thus, we vacate the special condition and remand to the district court to explain or reconsider the 2,000 foot residency restriction. 

November 28, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack