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November 28, 2011

New GOP front-runner Newt Gingrich talking up death penalty for drug kingpins

Newt Gingrich's surge in the GOP presidential polls should be exciting for sentencing fans due to his recent and vocal involvement in the Right on Crime Campaign, in which he has stated explicitly in a co-authored commentary that the US "can no longer afford business as usual with prisons" and that the "criminal justice system is broken, and conservatives must lead the way in fixing it."  However, this new item from The Daily Caller reveals that Gingrich is now making sentencing headlines of a different sort.  The piece is headlined "Newt: Give the death penalty to drug cartel leaders," and it begins this way:

Republican presidential candidate Newt Gingrich says he supports using the death penalty as punishment for leaders of drug cartels who bring drugs into America.

Gingrich made the comments when asked in an interview with Yahoo! News if he still stands by a bill he introduced in Congress in 1996 allowing those convicted of smuggling drugs to be put to death. “I think if you are, for example, the leader of a cartel, sure,” Gingrich told reporter Chris Moody. “Look at the level of violence and the level of violence that they’ve done to society.”

Elaborating, he said: “You can either be in the Ron Paul tradition and say there’s nothing wrong with heroine and cocaine or you can be in the tradition that says, ‘These kind of addictive drugs are terrible, they deprive you of full citizenship and they lead you to a dependency which is antithetical to being an American.’”

“If you’re serious about the latter view, then we need to think through a strategy that makes it radically less likely that we’re going to have drugs in this country.”

I wonder if any readers of this blog can seriously accept the notion that even a relatively active federal death penalty for drug kingpins would help make it "make[] it radically less likely that we’re going to have drugs in this country." I also wonder if there are any traditional GOP fans of smaller government really like hearing talk of ramping up the federal drug war to an even higher sentencing gear.

November 28, 2011 in Death Penalty Reforms, Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (38) | TrackBack

SCOTUS to decide whether Apprendi applies to criminal fines via Southern Union

Sentencing fans have their SCOTUS cups running over this morning: in addition to the cert grants on a pair of cases dealing with the application of the statutory crack sentences in Dorsey and Hill (basics here), the Supreme Court also grant cert on a long-simmering Apprendi issue: namely whether standard of proof jury trial rights set forth in Apprendi and its progeny apply to the imposition of criminal fines.   This issue is to be reviewed in Southern Union Company v. United States, No. 11-94.  Wowsa!

With the juve LWOP homicide cases of Jackson and Miller to give more content to the Eighth Amendment, and now this Southern Union case to further unpack the meaning and reach of Apprendi and Blakely, the current SCOTUS Term is shaping up to be huge for sentencing fans.  Can you tell I am already giddy with anticipation?

P.S.: On the Sixth Amendment front, the Supreme Court also granted cert today on a case dealing with the application of harmless error review for the admission of hearsay statements in a case named Vasquez v. US.  I am not sure Vasquez has any likely sentencing bite, but I am sure the Justices seem interested in resolving a significant number of criminal justice issues this Term.)

November 28, 2011 in Blakely in the Supreme Court, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

SCOTUS to review FSA pipeline issue via Dorsey and Hill grants

As indicated on this Supreme Court order list released this morning, the Justice have taken up a pair of cases, Hill v. United States11-5721, and Dorsey v. United States11-5683, to address the circuit split over whether the new Fair Sentencing Act new mandatory minimums for crack offenses apply to defendants who committed crimes but were not yet sentenced when the FSA became law.  Kudos to the Court and huzzah!

Regular readers know that I have be following this intricate "crack-cases-in-the-pipeline" sentencing issue closely for nearly two years (starting way back in March 2010 when the Senate passed its version of the FSA).  I have lots of thoughts on this matter, and I am already thinking about authoring an amicus brief in Hill and Dorsey to address some statutory construction canons that, in my view, have not been fully briefed in the lower courts.

Though I will have more on these cases in the weeks and months ahead, I sure hope for the sake of lots of defendants that lawyers have been effectively preserving this issue in cases that have been in the pipeline all this while.  This issue is now on track to be conclusively resolved by June, and perhaps even sooner (though not a moment too soon).

November 28, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2) | TrackBack

"One prisoner worthy of presidential pardon"

The title of this post is the headline of this commentary by Debra Saunders, which makes this pitch:

[Last] Monday, the president finally got serious.  He issued five pardons, but also his first (and only) commutation.  The recipient, Eugenia Jennings of Illinois, was sentenced to 22 years in prison in 2001.  That's a long sentence, you might think; Jennings must have been a true crime kingpin to have rated such treatment from federal authorities.  To the contrary, the 23-year-old mother got that hard time for selling 13.9 grams of crack cocaine  — about the size of six sugar packets — to a confidential police informant.

Because Jennings sold crack — not powder — cocaine, a federal judge was required to boost her prison time. Because Jennings had been prosecuted twice previously for dealing small amounts of crack, the feds pegged her as a career criminal, another sentencing add-on. Thus the federal government used its awesome weight to bring to heel a pathetic young drug-addicted woman.

The Department of Justice did not elaborate as to the thinking behind Obama's commutation. But Families Against Mandatory Minimums issued a news release with a few hints. Sen. Dick Durbin, D-Ill., advocated for her release. Jennings, who is African American, has been diagnosed with cancer, but has been responding well to treatment. When she is released Dec. 21, she will be able to see her eldest daughter graduate from high school....

I have an even worse criminal-justice horror story.  In 1993, Clarence Aaron received three sentences of life without parole as a first-time nonviolent drug offender.  Aaron broke the law and earned time in prison.  But he received a longer sentence because he didn't know enough to turn on the bosses behind two large cocaine deals.  He foolishly pleaded not guilty and lied under oath.  Because the buyer had planned to convert the powder cocaine into crack, his sentence was extended....

Molly Gill of Families Against Mandatory Minimums believes Eugenia Jennings is an "extraordinary case."  But also, Gill says, Obama should be "bold" and "unafraid" to do more. "This isn't political scandal, it's just doing justice."

Aaron has taken responsibility for the actions that put him in prison.  He has a good prison record, and he's ready to start leading a normal life among a supportive and anxious family.  Readers of this column know how tough I can be on violent career criminals. Vicious crimes deserve serious time.  But career criminals aren't doing hard time, their small-time subordinates are.  Besides, it is obscene that a young African-American man will spend the rest of his natural life in prison for a nonviolent, first-time offense committed when he was 23 years old.

Next month, Aaron will have spent 18 years in prison. As his commutation application notes, Aaron shows promise to be a law-abiding citizen, but he "continues to serve his life sentences, while all those who testified against him are now out of jail."  President Obama should free him.

Some recent and older related posts:  

November 28, 2011 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

November 27, 2011

Will NC legislature soon repeal its groundbreaking Racial Justice Act?

The question in the title of this post is prompted by this local report from North Carolina, which is headlined "Senate may void North Carolina's racial bias law."  Here is how the piece starts:

All but three of North Carolina's 157 death row inmates are waiting for their day in court to argue that racial bias played a role in their case. But the law that gives them hope is on shaky ground.

State lawmakers are scheduled to congregate in Raleigh tonight for the start of a three-day session that could result in the gutting of the historic Racial Justice Act.

Prosecutors made a push several weeks ago for a major tweaking of the 2-year-old law before any inmate awaiting execution has an opportunity to be heard in court.  Public defenders responded with pleas of their own: Give the law a chance, they said.  Let one case go all the way through the court system before giving up on a process being watched by legal scholars across the country.

The public back-and-forth between prosecutors and defense attorneys has resulted in a flurry of letters to influential legislators and accusations that some district attorneys are using misleading fear-mongering tactics to make their case.

A Senate judiciary committee is set to take up the topic in the Legislative Office Building on Monday afternoon.  That could lead to a full vote in the Senate this week.  The House has already voted to pull the teeth from the law.

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

November 27, 2011 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5) | TrackBack

Setting my DVR for "Weed Wars"

DownloadAs detailed on this official website, the Discovery Channel will begin broadcasting this coming week a new four-part series titled "Weed Wars."  Here is how the website describes the series:

Oakland's Harborside Health Center is the nation's largest medicinal cannabis dispensary. Founder and executive director Steve DeAngelo has made twin missions of providing the best possible product to the patients who make up his client base, and educating the rest of the country about the regulation and taxation of those goods.  WEED WARS takes an up close and personal look at the reality of running a controversial medicinal cannabis business.

And here is a notable Viewer Advisory for the series:

Weed Wars contains scenes depicting the cultivation, sale and consumption of medical marijuana in California.  While selling and using marijuana for medicinal purposes with a valid permit is legal under California law, it is a crime under Federal law and could result in jail time and other penalties.  Viewers should not attempt the activities depicted in this program. Viewer discretion is advised.

I wonder if the US Attorney in California who talked about going after media that ran medical marijuana ads (story blogged here) has thought about going after the Discovery Channel for producing and airing this show.  US Attorney Laura Duffy said last month that she was troubled by media advertising of the medical marijuana industry,  complaining: "It’s gone mainstream.  Not only is it inappropriate — one has to wonder what kind of message we’re sending to our children — it’s against the law.”  On that theory, she should be especially concerned about the message being sent by the Discovery Channel through this show, and perhaps these is a set of indictments in the works awaiting the airing of this show.  I hope not, but one never knows how the feds war against pot will find expression in California these days.

Some recent related posts:

November 27, 2011 in Pot Prohibition Issues, Television | Permalink | Comments (4) | TrackBack

Noting the impact of three strikes on plea practices in California

This local article from California, headlined "The hidden impact of three strikes: State law is widely used to coerce plea bargains," does a very effective job spotlighting the relationship between a consequential state mandatory minimum sentencing provision and plea practices.  Here are excerpts:

Across California, hundreds of criminals convicted of non-serious, non-violent, non-sexual crimes last month were no longer sent to prison under the state's massive inmate realignment — but this group of "low level" offenders does not include more than 2,200 inmates currently imprisoned for the exact same crimes.  They are serving life sentences under California's three-strikes law.

It is this incongruity that again has inspired a reform effort aimed at requiring that an offender's third strike be a serious, violent offense.  "Most people don't realize a petty theft with priors is a third strike and can get you life in prison," said Salinas-based defense attorney Brian Worthington.

Men in Monterey County have been sentenced to 25 years to life for crimes ranging from petty theft to drug possession to second-degree burglary, the same offenses that now qualify others for county jail, probation and rehab programs.  A third strike doesn't have to be serious, violent or sexual. It can even be what criminal attorneys call a "wobbler" — a crime that's allowed to be prosecuted as either a misdemeanor or a felony.

In Monterey County, where the overall numbers are small, such relatively minor crimes have put more than 10 percent of the county's third-strikers in state prison for life.  Of the county's 41 third-strikers in state prison as of June, five are serving life terms for offenses that fall squarely under realignment's definition of non-serious, non-violent and non-sexual....

Worthington and other defense attorneys acknowledge that Monterey County prosecutors tend to reserve a third strike for serious, sexual or violent crimes.  But what third-strike conviction numbers don't reflect is how often the mere threat of applying the law — and therefore, a life sentence — is used to coerce plea agreements and prison time in low-level cases that otherwise could have ended with a few years' probation.

That, says Worthington, is the hidden impact of three strikes.  "I think people would also be surprised to know that you can get multiple strikes in one offense.  They think it's for someone who has a long, illustrious career (in crime).  But it could be one event with no prior record and it doesn't have to be their third or fourth time in front of a judge."...

Monterey County public defender Jim Egar calls three strikes "an overwhelming coercive tool.  It discourages innocent people from going to trial.  The risk of conviction and punishment causes people to plead guilty....  You have a situation that is ripe for unfair results.  Mistakes happen because people are afraid of the risk."

"I don't discount that they may feel leverage," said Monterey County District Attorney Dean Flippo, who has been "heavily involved in the political wars" over three strikes through the years.  Flippo said he and other district attorneys initially remained neutral when three strikes became law, but became supportive after they noted its popularity and saw that higher courts upheld it.  "We were concerned about the third strike being non-serious and non-violent. But it picked up steam, and we embraced it."...

Flippo acknowledges that in the early years there were some abuses, "the kind that would shock the conscience."  But within two years, judges were given the ability to dismiss a strike, in an act known as the Romero decision.  "The first reform was the Romero decision," Flippo said. "Three strikes gave us discretion to say 'You've had as many breaks as the community can give you.' If the judge disagrees with the prosecutor, he has the power to strike the strikes."

Unlike some district attorneys in California, Flippo has had a written three-strikes policy for years.  While it encourages prosecutors to file strikes whenever possible, the policy also allows them to dismiss strikes if there are "compelling" considerations, such as multiple strikes stemming from the same incident, if many years have passed since the strikes occurred, or if the defendant has had a crime-free record for 10 years.  Attorneys also can decline to file a strike if the new offense is possessing a small amount of drugs.

Still, Flippo doesn't hesitate to credit the law with lowered crime rates around the state. "Crime rates have been going down, down, down. I attribute it to harsher sentencing... along with mobilization of communities" toward prevention and intervention efforts.

Generally, there has been no agreement among criminologists about why crime rates continue to decline, and Worthington cited research that concludes just the opposite.  "You will not find any link between the harshness of the sentence and declining crime rates," he said.

November 27, 2011 in Mandatory minimum sentencing statutes, Offender Characteristics, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (14) | TrackBack

"The Real Prison Industry"

The title of this post is the headline of this notable commentary by Jonah Goldberg over at Townhall.com. Here are excerpts:

I've long thought the notion of a prison-industrial complex to be laughable left-wing nonsense peddled by Marxist goofballs and other passengers in the clown car of academic identity politics.

For those who don't know, the phrase "prison-industrial complex," or PIC, is a play on the military-industrial complex. The theory behind PIC is that there are powerful forces -- capitalist, racist, etc. -- pushing to lock up as many black and brown men as they can to maintain white supremacy and line the pockets of big-prison CEOs and shareholders with profits earned not just from the taxpayer but from the toil of prison-slave labor....

Self-described "abolitionists" in the anti-PIC cause seek to get rid of prisons altogether. Indeed, they want to abolish punishment itself. That goes for murderers, rapists and pedophiles....

Personally, I think that is just bat-guano crazy. Still, the state of our prisons has become something of a scandal. We have more prisoners today than we have soldiers, and more prison guards than Marines.

Our prisons have become boot camps for criminals. That's one reason why I'm sympathetic to Peter Moskos' idea to bring back flogging. A professor at John Jay College of Criminal Justice, Moskos argues in his book, "In Defense of Flogging," that flogging -- aka the lash -- is more humane than prison and much, much cheaper. He suggests that perpetrators of certain crimes -- petty theft, burglary, drug dealing -- be given the option of receiving one lash instead of six months in prison....

Moskos' motive is to reduce the size, scope and influence of prisons while keeping them around for the people who truly must be locked up: murderers, rapists, terrorists, pedophiles, etc. I might disagree with where he would set the ideal size of our prison population (I think incarceration rates have reduced crime more than he does), or how many lashes criminals should get, but he makes a compelling case, and his objective is reasonable.

But it's not an objective shared by the California Correctional Peace Officers Association (CCPOA). This was the outfit that essentially destroyed then-Gov. Arnold Schwarzenegger's attempt to fix the state budget. In a state where more than two-thirds of crime is attributable to recidivism, CCPOA has spent millions of dollars lobbying against rehabilitation programs, favoring instead policies that will grow the inmate population and the ranks of prison guard unions. In 1999, it successfully killed a pilot program for alternative sentencing for nonviolent offenders. In 2005, it helped kill Schwarzenegger's plan to reduce overcrowding by putting up to 20,000 inmates in a rehabilitation program. It opposes any tinkering with the "three strikes law" that might thin the prison rolls.

According to UCLA economist Lee E. Ohanian in a illuminating paper for The American, "America's Public Sector Union Dilemma," California's corrections officers have exploited their monopoly labor power to push policies that will expand the prison population and, as a result, the demand for more guards who just happen to be the best-paid corrections officers in the country. That's why, contrary to what the Marxist sages would expect, they've successfully kept privately run prisons out of the state.

Meanwhile, incarceration costs in the essentially bankrupt state are exploding. California spends $44,000 per inmate, compared with the national average of $28,000. A state prison nurse exploited overtime rules to earn $269,810 in one year.

Also contrary to left-wing expectations, these policies have been implemented not so much by the hard-hearted captains of industry and their Republican lackeys, but by a Democrat-controlled state legislature lubricated with donations from a powerful public-sector union....

Still, I suppose I owe the folks in the clown car at least a small apology. They're still nuts, but they're right about the existence of a prison-industrial complex. They were just looking in the wrong direction.

November 27, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack