December 10, 2011
"Solving the Good Time Puzzle: Why Following the Rules Should Get You Out of Prison Early"
The title of this post is the title of this notable new piece by Professor Michael O'Hear, which is available via SSRN. Here is the abstract:
Good-time programs have long been an important part of the American penal landscape. At least twenty-nine states and the federal government currently offer prison inmates early release, sometimes by many years, in return for good behavior.
Written a generation ago, the leading scholarly article on the subject presented a strong case against good time, which has yet to be effectively addressed. Although good time is traditionally justified by reference to its usefulness in deterring inmate misconduct — credits can be denied or withdrawn as a penalty for violations of prison rules — the article questioned how it could possibly be just to impose additional incarceration based on mere violations of administrative regulations.
In response to this important challenge, the present Essay proposes a new way to conceptualize good-time credits, specifically, as a way to recognize atonement. Drawing on increasingly influential communicative theories of punishment, the Essay argues that good time can be seen as congruent with (and not, as is commonly supposed, in opposition to) the basic purposes of sentencing. The Essay then proposes reforms that would help good-time programs more fully to embody the atonement ideal.
Second defendant gets death sentence for multiple killings in Connecticut
As reported in this New York Times piece, late yesterday a jury finally reached a sentencing decision in a high-profile Connecticut capital case. Here are the basics:
One of Connecticut’s most agonizing courtroom dramas came to an end on Friday as a jury voted to impose the death penalty on the second of two killers of three family members after an ordeal of violence and sexual assault that challenged suburban ideals of safety.
Lawyers for the second convicted killer, Joshua Komisarjevsky, 31, had waged an aggressive fight to avoid a capital sentence since Oct. 13, when he was convicted of the crimes, which drew national attention in 2007. But the jury in New Haven unanimously voted for capital punishment on each of the six capital counts he faced.
Mr. Komisarjevsky’s trial in Superior Court followed the trial of his co-defendant, Steven J. Hayes, who was sentenced to death last year. The two men burst into the home of the Petits in Cheshire, Conn., beat and tied up the father, Dr. William A. Petit Jr., and wreaked havoc for hours before setting the house on fire with the family’s two girls tied to their beds....
One juror, Timothy Anderson, said jurors were sobbing on Friday as they reached the verdict. Mr. Anderson said he was the last to decide to vote for death, “but when you look at the whole thing, it’s so horrific.”
The defense lawyers presented a series of misfortunes that they said Mr. Komisarjevsky had suffered in his life as they worked to change perceptions of him that had been forged by revulsion at the killing of Jennifer Hawke-Petit, and her daughters, Hayley, 17, and Michaela, 11.
Mr. Hayes was convicted of raping and strangling Ms. Hawke-Petit and killing the daughters, who died of smoke inhalation. At his separate trial, Mr. Komisarjevsky was convicted of the killings and a host of other crimes, including sexually assaulting the 11-year-old and making prurient photographs of her on his cellphone.
In weeks of testimony, the defense lawyers worked to cast Mr. Komisarjevsky as a damaged person worthy of life, though one that would certainly be lived behind prison bars. The lawyers said that Mr. Komisarjevsky was sexually abused as a child, suffered mood disorders and head injuries, abused drugs and cut himself with glass, knives and razors, and that his evangelical Christian adoptive parents denied him proper care, relying instead on religion.
Connecticut's history in (not) carrying out executions suggest it will likely be decades before the two condemned defendants here get close to actually heading toward a death chamber. In the meantime, I hope all the surviving victims of this tragedy get some comfort and closure from this second symbolic death sentence.
December 9, 2011
Another super-sized federal prison term for super-sized Medicare fraud
As reported in this Reuters piece, another record setting white-collar sentence was handed down in Florida today. Here are the details:
A former Miami health care executive was sentenced to 35 years in prison for her role in a $205 million healthcare fraud scheme, authorities said on Friday.
Judith Negron, the owner of American Therapeutic Corp, a chain of mental health care centers shut down after a raid on its Miami headquarters in October 2010, was convicted in August on charges that she helped mastermind what prosecutors described in court documents as "one of the largest and most brazen healthcare fraud conspiracies" in U.S. history.
Her sentencing in federal court on Thursday by U.S. District Judge James Lawrence King followed the sentencing in September of her co-defendants and co-owners. Lawrence Duran received a 50-year sentence and Marianella Valera received a 35-year sentence.
The prison sentences have been described by prosecutors as the harshest ever for defrauding Medicare, the federal insurance plan for the elderly and disabled....
Before Judge King's sentencing of the American Therapeutic trio, the highest Medicare fraud sentence was 30 years. It was handed out in 2008 to a Miami physician, Ana Alvarez-Jacinto, convicted in an HIV-therapy scheme.
I certainly understand concerns with the costs and consequences of Medicare fraud, but I always worry that a prison sentence of multiple decades for a non-violent white-collar offense is going ultimately produce more (correction) costs than (crime-control) benefits.
In "Fast and Furious" grilling, AG Holder talks about federal marijuana prosecution policy
This new Huffington Post entry, headlined "Federal Interference In State Medical Marijuana Laws Is A Low Priority, Attorney General Affirms," notes the brief discussion of federal marijuana prosecution policy during the congressional hearing with Attorney General Eric Holder yesterday. Here are the highlights:
Attorney General Eric Holder on Thursday reiterated the Justice Department's support for the Ogden memo, which in 2009 declared that the sale and use of medical marijuana in states where it's legal are a low priority for federal prosecutors.
"What we said in the memo we still intend, which is that given the limited resources that we have, and if there are states that have medical marijuana provisions ... if in fact people are not using the policy decision that we have made to use marijuana in a way that's not consistent with the state statute, we will not use our limited resources in that way," Holder said.
The comments came in response to a question from Rep. Jared Polis (D-Colo.) during a hearing on the Justice Department's flawed and discredited gun-sting program. Polis also asked about the recent federal crackdown on medical marijuana shops in California, where U.S. attorneys have closed hundreds of medical marijuana dispensaries in just two months' time. She questioned whether Colorado could expect to get different treatment.
"It's my understanding," Polis said, "[California] did not have a functional state-level regulatory authority. Colorado does have an extensive state regulatory and licensing system for medical marijuana, and I'd like to ask whether our thoughtful state regulation ... provides any additional protection to Colorado from federal intervention."
Holder's response, though vague, offered Polis some assurance, while seeming to suggest that state-level regulation in California is inadequate. "Where a state has taken a position, has passed a law and people are acting in conformity with the law -- not abusing the law -- that would not be a priority with the limited resources of our Justice Department," Holder said.
Feds say it's "necessary" for Barry Bonds to serve 15 months in federal prison for his lies
As detailed in this local report, the government has filed its sentencing memo in the next high-profile federal sentencing and "prosecutors want home run king Barry Bonds to spend the next few seasons in prison." Here are the specifics:
In court papers filed late Thursday, government lawyers urged a federal judge to sentence Bonds to 15 months in prison for his conviction of obstructing justice by providing evasive testimony to a federal grand jury probing the Balco steroids scandal in December 2003. Prosecutors called Bonds' denials of ever using performance enhancing drugs "patently false."
"Bonds' actions were the product of a calculated plan to obfuscate and distract the grand jury from its role in getting to the truth in the Balco inquiry," prosecutors wrote.
A federal jury in April convicted the 47-year-old Bonds of one obstruction count, deadlocking on three other perjury charges against him. Federal sentencing guidelines call for a prison term of 15 to 21 months, but no other figure convicted of lying during the Balco probe has received such a harsh sentence. Even central players in the Balco scandal, including Balco mastermind Victor Conte, received only a few months in prison for spreading steroids in sports.
Earlier this week, Bonds' lawyers argued that Bonds should get probation, citing his clean criminal record and work in the community. But prosecutors argue his conduct was egregious enough to warrant a stay behind bars longer than any figure in the longrunning Balco scandal other than Troy Ellerman, a lawyer convicted of leaking secret grand jury transcripts to the media.
U.S. District Judge Susan Illston is scheduled to sentence Bonds on Dec. 16.
Federal probation officials have recommended probation for Bonds, but with "location monitoring" for an unspecified amount of time, which would likely be a sentence of home detention. Other athletes convicted of lying in the Balco investigation have drawn similar sentences, such as former world class cyclist Tammy Thomas and track coach Trevor Graham.
For a host of reasons, I think a lengthy prison term for Bonds in this case is "greater than necessary" to serve the statutory sentencing purposes set forth by Congress in 18 USC 3553(a). Indeed, though I am unsure if federal law would permit the imposition of a huge fine based on Bonds' offense of conviction, this kind of case strikes me as the perfect setting for use of a financial punishment rather than a confinement punishment.
A few related posts:
- Defense team for Barry Bonds urges sentence of home confinement
- Is it clear that Barry Bonds would have a 15-21 months guideline range?
- Still more on lying, Clemens, Bonds and equal justice
December 8, 2011
"Airline offers 'slammer sale' in honor of Blagojevich sentencing"
I have been debating in my mind whether and when to blog about various press stories discussing the aftermath of Rod Blagojevich's federal sentencing yesterday (details here). Ultimately, I just could not resist linking to this story from The Hill, which carries the headline that is the title of this post. Here is the story:
An airline is offering passengers a sale in honor of former Illinois Gov. Rod Blagojevich being sentenced to prison.
Spirit Airlines, based in Miramar, Fla., which offers flights out of a Chicago airport, said Thursday that it was offering flights for $14, which is the number of years Blagojevich was sentenced to serve in prison for his conviction on corruption charges.
After he was sentenced this week, Spirit said Thursday "you don't have to live in the 'Big House' to take advantage of these fares" to among other places, Chicago.
"But hurry... You don't want to get convicted for missing this seat-selling sale!" the airline's advertisement said.
Split Eighth Circuit panel affirms 10-year-max sentence despite guidelines range of 0 to 6 months
Today brings a fascinating split sentencing decision from the Eighth Circuit in US v. Richart, No. 10-1167 (8th Cir. Dec. 8, 2011) (available here). The majority opinion starts this way:
After a jury found Wanda Richart guilty of one count of conspiracy to make a false statement in violation of 18 U.S.C. § 371 and one count of making a false statement in violation of 18 U.S.C. § 1001, the district court sentenced her to sixty months' imprisonment on each count, to be served consecutively, and three years' supervised release. Richart appeals her sentence, arguing that the district court committed procedural error in imposing a two-level adjustment for her role in the offense, in imposing an upward departure, and in running the two sentences consecutive to each other. Richart also contends that the district court abused its discretion by imposing a substantively unreasonable sentence and by imposing special conditions of supervised release. For the reasons stated below, we affirm.
Though this starting description from the majority does not make the Richart case sound too exciting, these passages from the start of Judge Bye's dissent highlight why the Richart decision makes for an intersting read:
The district court here varied upward from the 0 to 6 months Guideline range and sentenced Richart to 120 months’ imprisonment—the statutory maximum—for making, and conspiring to make, false statements to an FBI agent....
The record demonstrates the district court’s decision to vary upward from the 0 to 6 months Guideline range, and impose a 120-month sentence, rested largely, if not exclusively, on the court’s desire to correct what it perceived to be an inadequate state sentence for Richart’s second-degree murder conviction. Specifically, the court gave significant weight to the nature of Richart’s state conviction, the length of her state sentence, and the uncertain amount of time she would actually serve in state prison.
December 8, 2011 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (19) | TrackBack
New ABA mega-study calls for moratorium on executions in Kentucky
As detailed in this local article, which is headlined "Lawyers: Kentucky should suspend executions until flaws fixed," the ABA has released another massive study of a state's death penalty system and — surprise, surprise — it does not like what it sees. Here are the basics:
There are serious flaws in Kentucky's administration of the death penalty, increasing the chance an innocent person could be executed, an American Bar Association team said in a study released Wednesday. The team recommended halting executions in the state until lawmakers and others correct problems cited in the study.
Those problems include a lack of protections against executing seriously mentally ill people; high case loads and low pay for public defenders who represent people accused of capital crimes; no rule to preserve evidence for as long as someone is in prison, meaning they might miss a chance for DNA tests that could exonerate them; and confusion among jurors about their role in deciding whether to recommend a death sentence.
The study found that of the 78 people sentenced to death in Kentucky since 1976, 52 later had that initial sentence overturned because of errors at the trial. "The underlying concern is that an innocent person not be put to death," said William T. Robinson III, a Northern Kentucky lawyer who is president of the ABA. "When a person's life is at stake, the guarantees of fairness and due process are absolutely paramount."
A poll commissioned by the ABA found that 62 percent of Kentuckians support a temporary halt to executions, the study team announced during a Frankfort news conference. Support for the moratorium topped 50 percent in every demographic group, including men, women, Democrats, Republicans and urban and rural residents, according to the poll of 405 likely voters contacted between Nov. 30 and Dec. 4.
It would be up to Gov. Steve Beshear to declare a moratorium on death sentences, said Linda Ewald, a University of Louisville law professor who co-chaired the study team. Beshear issued a statement saying his office will carefully review the 400-plus page report.... There are 33 men and one woman under a death sentence in Kentucky.
As with the death penalty itself, there were mixed reactions and strong feelings about the study. Public defenders and the Kentucky Association of Criminal Defense Lawyers backed the call for a death-penalty moratorium and for changes in the state's administration of the ultimate penalty....
However, Attorney General Jack Conway said in a statement that he disagreed that the state's legal system is broken. Conway said prosecutors carefully consider which people they'll seek a death sentence for. He said trial judges make sure defendants' rights are protected, juries take their job seriously, and appeals courts look over the cases carefully for errors. "I am reviewing it carefully," he said of the report, "but I do not at first glance believe its analysis warrants a suspension of the death penalty."...
John Minton, chief justice of the Kentucky Supreme Court, which automatically reviews death sentences, attended the news conference and said he and the other justices will review the study to see if there are changes the court system might need to make.
But Minton said the percentage of death sentences overturned shows appellate courts are doing thorough reviews. "My interpretation of that statistic is that, at least at the appellate level, it demonstrates that the system is working," Minton said....
The study in Kentucky came as part of a larger project to assess the death penalty in a number of states. Kentucky was the ninth completed.
The full ABA study of Kentucky's capital system is available at this link. I have commented before concerning the ABA assessment reports in other states that I fear these mega-documents, though containing lots of useful information about a state's experiences with the death penalty, have not been developed or presented in ways that could have maximum practical impact. In particular, the failure of these ABA reports to assess the concrete financial expenses involved in the administration of capital punishment means that these documents cannot provide a tangible accounting of the direct fiscal costs of a broken death penalty system.
Notable NJ appellate reversal of 30-year sentence for drunk driving homicide
This local article, headlined "Appellate panel orders reconsidering 30-year sentence in Lower Township drunken-driving death," reports on an interesting state appellate sentencing ruling from New Jersey. Here are the basics:
A state appellate panel ruled Wednesday that a judge should reconsider the 30-year prison term imposed on Philadelphia resident John J. Lawless in the death of Lower Township resident Frederick Shelton Sr.
Lawless, 39, was sentenced for first-degree aggravated manslaughter in November 2010, more than a year after Lawless, with a blood-alcohol content of .229, crashed into the car Shelton was driving on Route 9 in Lower Township. The Sept. 12, 2009, crash killed Shelton, 50, and left his wife and daughter with serious injuries.
At sentencing, Superior Court Judge Raymond Batten said several aggravating factors played a part in his decision to sentence Lawless to 30 years in state prison. Those included the gravity and seriousness of the harm inflicted by Lawless, and the extent of the defendant’s prior criminal record and the seriousness of the offenses of which he had been convicted. The appellate panel found that those two factors should not have been given weight in the sentencing.
According to the appellate panel’s written decision, the judge cited both Shelton’s death and the injuries suffered by his wife and daughter during the sentencing. Lawless argued that because he was only sentenced for the crime against Shelton, aggravated manslaughter, that the injuries of the car’s other passengers should not be considered.
The appellate court agreed noting that “a distinction must be drawn between the direct harm inflicted on the victim of the particular charge to which the defendant pleads and the direct harm inflicted on third parties.”
In the case of “aggravating factor six,” the appellate panel found that the judge considered Lawless’ extensive drunken-driving history in Pennsylvania, but Lawless argued those cases should not have played a part in his sentencing. Because they were out-of-state convictions, the New Jersey court also found those Pennsylvania convictions should also not have been considered under aggravating factor six.
The court did find, however, that Batten appropriately applied aggravating factors related to the risk Lawless would commit another crime and the need to deter him and others from violating the law.
The rull written opinion in this case is available at this link.
December 7, 2011
"The Early Demise of Early Release"
The title of this post is the title of this new paper by Professor Cecelia Klingele now available on SSRN. I suspect that former Gov. Rod Blagojevich — who is now looking, after today's sentencing, at a likely federal prison release date sometime in the year 2024 even if he earns the maximum good time credits — is not the only defendant now subject to a long prison sentence who might hope that many legislators give serious consideration to this article's advocacy for greater use of early release mechanisms. Here is the article's abstract:
Reversing the tough-on-crime policies that have defined American criminal justice for the past two decades, cash-strapped states across the nation have begun reducing the number of people they confine in prisons and jails. In their efforts to reduce correctional populations, numerous states have passed laws that allow parole boards, prison officials, or judges to shorten the sentences of people already serving time in custody. These so-called "early release" laws have proven highly controversial, and in at least three states have been repealed outright. In others, they remain on the books but have provided less savings than anticipated because of the failure of decision-makers to utilize their newly-conferred authority.
This Article examines the early demise of early release in several jurisdictions, identifying practical, political, and moral obstacles to the practice of early release that may account for the failure of recent legislation. Responding to those concerns, I suggest principles to guide future efforts to reduce custodial populations through the use of early release. These include drafting laws that respect the limits of institutional capacity, adopting principled rules about who may be released early and for what reasons, and emphasizing the moral concerns that justify efforts to reduce prison populations.
(In)famous Pennsylvania cop killing case is no longer a capital case
This AP story, which is headlined "Death penalty dropped against Mumia Abu-Jamal," reports on the end of an extraordinarily long-running capital case. Here are the details:
Prosecutors on Wednesday abandoned their 30-year pursuit of the execution of convicted police killer Mumia Abu-Jamal, the former Black Panther whose claim that he was the victim of a racist legal system made him an international cause celebre.
Abu-Jamal, 58, will instead spend the rest of his life in prison. His writings and radio broadcasts from death row had put him at the center of an international debate over capital punishment.
Flanked by Officer Daniel Faulkner's widow, Philadelphia District Attorney Seth Williams announced his decision two days short of the 30th anniversary of the white policeman's killing. He said continuing to seek the death penalty could lead to "an unknowable number of years" of appeals, and that some witnesses have died or are unavailable after nearly three decades.
"There's never been any doubt in my mind that Mumia Abu-Jamal shot and killed Officer Faulkner. I believe that the appropriate sentence was handed down by a jury of his peers in 1982," said Williams, the city's first black district attorney. "While Abu-Jamal will no longer be facing the death penalty, he will remain behind bars for the rest of his life, and that is where he belongs."
Abu-Jamal was originally sentenced to death. His murder conviction was upheld through years of appeals. But in 2008, a federal appeals court ordered a new sentencing hearing on the grounds that the instructions given to the jury were potentially misleading. After the U.S. Supreme Court declined to weigh in two months ago, prosecutors were forced to decide whether to pursue the death penalty again or accept a life sentence without parole.
Williams said he reached the decision with the blessing of Faulkner's widow, Maureen. "Another penalty proceeding would open the case to the repetition of the state appeals process and an unknowable number of years of federal review again, even if we were successful," the district attorney said.
Widener University law professor Judith Ritter, who represented Abu-Jamal in recent appeals, welcomed the move. "There is no question that justice is served when a death sentence from a misinformed jury is overturned," Ritter said. "Thirty years later, the district attorney's decision not to seek a new death sentence also furthers the interests of justice."...
Faulkner's widow labored to ensure her husband was not forgotten. "My family and I have endured a three-decade ordeal at the hands of Mumia Abu-Jamal, his attorneys and his supporters, who in many cases never even took the time to educate themselves about the case before lending their names, giving their support and advocating for his freedom," she said Wednesday. "All of this has taken an unimaginable physical, emotional and financial toll on each of us."
Amnesty International, which maintains that Abu-Jamal's trial was "manifestly unfair and failed to meet international fair trial standards," said the district attorney's decision does not go far enough. Abu-Jamal still has an appeal pending before the Pennsylvania Supreme Court over the validity of ballistics evidence. " Amnesty International continues to believe that justice would best be served by granting Mumia Abu-Jamal a new trial," said Laura Moye, director of the human rights group's Campaign to Abolish the Death Penalty.
Members of Philadelphia's police community stood with Williams and Maureen Faulkner as the decision was announced. Former police union president Rich Costello criticized the courts for ordering a new sentencing hearing. "Where do Maureen and the Faulkner family go for a reduction in their sentence?" Costello said. "For 30 years now, they have been forced to suffer grief, anguish, abuse, insults, intimidation, threats and every other sort of indignity that can be visited on a family already in grief."
Faulkner lashed out at the judges who overturned the death sentence, calling them "dishonest cowards" who, she said, oppose the death penalty. The widow also vowed to fight any special treatment for Abu-Jamal behind bars, saying he should be moved to the general population after being taken off death row.
As Faulkner's widow understandably "remains eager to ensure her husband was not forgotten," I wonder if Mumia Abu-Jamal might himself now soon be forgotten now that he no longer faces the death penalty.
Instead of being among the roughly 3,200 persons on death row in the United States, Abu-Jamal now is just one of tens of thousands of persons in the US serving a life sentence. (I assume, given the comments by the Philadelphia DA, that Abu-Jamal's sentence now is LWOP and not life with parole.) My sense is that defendants on death row rarely have a difficult time getting media and worldwide attention, whereas persons serving life sentences find it much harder to get folks to be deeply concerned about their plight. But, of course, the long controversial history of Mumia Abu-Jamal's case and his claims of innocence might help keep him in the news.
"Ex-Gov. Rod Blagojevich sentenced to 14 years"
The title of this post is the headline of this local story reporting on the outcome of the highest-profile federal sentencing proceeding in recent months. Here is how the piece starts:
Disgraced former Gov. Rod Blagojevich was sentenced Wednesday to 14 years in prison after he made a final plea for leniency, acknowledging his guilt and saying, “I am unbelievably sorry.”
“I believe he did, in fact, accept [responsibility],” U.S. District Judge James Zagel said in announcing how long Blagojevich should spend in prison after being convicted of 18 corruption charges that included attempting to sell or trade an appointment to fill the U.S. Senate seat left vacant by the election of President Barack Obama.
But the judge said the entire state suffered from his actions. “When it is the governor who goes bad, the fabric of Illinois is torn and disfigured and not easily or quickly repaired,” Zagel said. “You did that damage.”
Blagojevich slightly sunk his head after the sentence was read. Wife Patti put her hand up to her mouth, but did not cry, as she has done in previous hearings. Blagojevich walked up to her and asked, “You OK? Stay strong.” After court was over, the two embraced in the courtroom and she buried her head in his chest.
Blagojevich will have to surrender Feb. 16. Under federal sentencing rules, Blagojevich will have to serve 85 percent of his sentence, or just under 12 years in prison, at a minimum. The ex-governor turns 55 on Saturday.
In deciding the sentence, the judge said he had given credit to Blagojevich for accepting responsibility for his crimes in remarks made Wednesday morning. “It’s clear he is not blaming” the people around him, said Zagel, adding that he also gave Blagojevich credit for his work on behalf of children while governor in creating the state’s All Kids health-care program.
Referring to comments from Blagojevich’s lawyers in asking for a sentence of no more than 3½ years, Zagel said: “I don’t doubt his devotion to children, but this is not ... exceptional, in my own experience. I see case after case where good fathers are bad citizens. There is no question that the innocent children of felons suffer. This is tragic, but, as he admits, the fault of this lies with the defendant alone. Now, it is too late. “If it is any consolation to his children, he does not stand convicted of being a bad father.”
But Zagel noted the damage caused by Blagojevich “is not measured in the value of money and property. The harm is the erosion of the public trust in government; [people’s] confidence in and trust in government.”
UPDATE: This press release from the US Attorney's Office for the Northern District of Illinois provides a bit of (curious?) explanation for the application of the guidelines by Judge Zagel:
During the sentencing hearing, Judge Zagel agreed with the government that the properly calculated advisory federal sentencing guidelines provided for a sentencing range of 30 years to life. He also agreed with the government that the range was not appropriate within the context of this case, and found an “effective” guideline range of 188 to 235 months in prison, which was proximate to the government’s recommended sentence of 15 to 20 years. The judge further reduced the range to 151 to 188 months after finding that Blagojevich accepted responsibility for his crimes at sentencing.
I hope through future media coverage of this case that I come to better understand just how and why Judge Zagel "agreed with the government that the [30 year to life calculated guideline] range was not appropriate within the context of this case, and found an 'effective' guideline range of 188 to 235 months in prison." Specifically, I wonder (1) if Judge Zagel formally justified this decision on a "traditional" departure ground or on 3553(a) variance concepts (or both), and (2) just how Judge Zagel decided to move down six offense levels on the USSG Sentencing Table in order to settle on the range of 151 to 188 months.
I also find notable and interesting that, after giving Blago this six-level downward adjustment under the guidelines AND giving him an extra two-point reduction by giving him (surprising?) credit for acceptance of responsibility, Judge Zagel than decided he should give Blago a sentence in the middle of the then-applicable guideline range. (For those of you math-challenged like me, I used a calculator to figure out that a 14-year sentence equals 168 months.)
"Avenging 'Amy': Compensating Victims of Child Pornography Through 18 U.S.C. § 2259"
The title of this post is the title of this new paper by Steven Joffee now available via SSRN. Here is the abstract:
Child Pornography is a vicious and heinous crime that preys on the most vulnerable and innocent members of our society. In recognition of the devastating impact that child pornography can have on its victims, Congress has enacted multiple anti-child-pornography statutes designed to address the problem. Among these statutes is the Mandatory Restitution for Victims of Sex Crimes Act, codified at 18 U.S.C. section 2259. Section 2259 was specifically enacted to ensure that victims of any defendant convicted of producing, distributing, or possessing child pornography would receive restitution for the full amount of the victim’s losses.
Although Congress intended for Section 2259 to apply in any case in which a victim has “suffered harm” as a result of a defendant’s conduct, its inclusion of the term “proximate result” in the Act’s catchall loss provision has created much confusion amongst federal courts. As a result of this confusion, several courts have simply ignored the mandatory language of Section 2259 and have flatly refused to award victims of child pornography with restitution, ultimately rendering the Act mere rhetoric.
To resolve this debate, and to end the further victimization of child pornography victims by courts refusing to grant restitution, the United States Supreme Court should grant certiorari to resolve this issue, or alternatively, Congress should amend the Act to make the requisite level of causation more clear. Only by resolving this issue will Congress’ intent to provide all victims harmed by child pornography with full compensation be achieved, ensuring that those who harm the “Amys” of this world will be held fully responsible for their abhorrent conduct.
Defense team for Barry Bonds urges sentence of home confinement
As detailed in this local article, which is headlined "Barry Bonds' lawyers seek home confinement," the first filing for the upcoming federal sentencing of Barry Bonds was submitted yesterday. Here are the particulars:
Barry Bonds' lawyers asked a federal judge Tuesday to sentence him to home confinement for obstruction of justice in his testimony about steroids, saying Bonds has a laudable but little-known record of public service and should be sentenced no more severely than other sports figures.
The former Giants star, baseball's all-time home run leader, was convicted in April of trying to thwart an investigation into steroid distribution by giving evasive answers to a federal grand jury in 2003. The jury deadlocked on three charges that Bonds committed perjury in denying he had knowingly used steroids, and prosecutors have decided not to retry him.
Defense lawyers plan to appeal the conviction. In the meantime, U.S. District Judge Susan Illston of San Francisco is scheduled to sentence Bonds on Dec. 16 and could send him to prison for a year or more - but is unlikely to do so, based on her sentencing in earlier cases.
For example, as Bonds' lawyers noted Tuesday, Illston sentenced former cycling champion Tammy Thomas to six months of house arrest for four convictions of lying about steroids. The judge gave track coach Trevor Graham a year of home confinement for a perjury conviction after evidence that he had supplied drugs to athletes.
A court-appointed probation officer has recommended that Bonds be given probation and home confinement for some period below six months, and Illston should follow that proposal, defense lawyer Allen Ruby said. He did not specify the recommended period and said the officer's report was confidential.
"Mr. Bonds does not dispute that he was convicted of a serious offense," Ruby said. But he cited the probation officer's conclusion that his conviction appears to be "an aberration when taken in context of his entire life."
Prosecutors have not yet submitted their sentencing recommendation....
In Tuesday's filing, Ruby said Bonds should be given credit for "charitable and civic contributions" that "have taken place away from the public eye." He quoted a letter to the court from a nurse at UCSF Children's Hospital, where a new family playroom bears Bonds' name.
Bonds has made numerous "unannounced and unpublicized visits" and is "always unfailingly kind and attentive to the many young children who flock to his side," the nurse said. "Frequently he will go to the bedside of a particularly ill child and gently give him/her words of encouragement to 'never give up.' "
Because I suspect Barry Bonds' residence is pretty darn nice, I am wondering what I might do to get sentenced to home confinement at the Bonds residence. All kidding aside, I wonder if readers think a home confinement sentence is generally less appropriate for a defendant like Bonds who (a) has a really nice home, and (b) likely is happy to stay out of the public eye. A number of interesting recent law review articles are debating the theoretical significance of the subjective experience of punishment, and I would be especially eager to hear how folks interested in this issue think through the Bonds case.
December 6, 2011
Effective review of the enduring challenge of cutting prison costs
This local article from Texas, which is headlined "Prison cuts prove fleeting: Critics say state can't afford to lock up so many people," highlights that even those states that have been effective at reducing the growth of its prison population will still often struggle to actually reduce its prison costs. Here are excerpts from this effective piece:
Last summer, when tough-on-crime Texas closed its first prison ever, legislative leaders were jubilant over downsizing one of the nation's largest corrections systems by more than 1,000 beds. It was a first big step, they said, toward saving taxpayers tens of millions of dollars in coming years.
Meanwhile, prison officials were adding bunks to the other 111 state prisons, which house more than 156,000 convicts. By last week, Texas had about 2,000 more prison bunks than it did a year ago, thanks to a state law that requires the prison system to maintain some excess capacity as a cushion against crowding.
Because those beds will likely fill up — empty prison beds almost always do — Texas taxpayers could be in line for some whopping additional costs come 2013. The situation illustrates how difficult it is to significantly reduce prison costs in a fast-growing state like Texas without confronting a tough political question: Can society afford to keep so many criminals behind bars?
"This is the adult discussion that the Legislature is going to have to have," said Scott Medlock, an Austin attorney with the Texas Civil Rights Project. "Ultimately, the problem is that we're incarcerating too many people for too long."
State Sen. John Whitmire, a Houston Democrat who for more than a decade has headed the committee that oversees prisons, echoes the sentiment: "At some point, because of the costs, we have to recognize that we don't need to waste one dollar incarcerating one person that doesn't really need to be behind bars. We're at that point."
To significantly reduce the number of people in prison, state laws could be changed to reduce penalties for some crimes or to limit local judges' discretion to mete out long prison sentences for nonviolent crimes — both of which would be unpopular politically. About 35 percent of the convicts in prison are serving time for nonviolent crimes, according to a prison system statistical report for 2010....
Expecting that an even tighter budget may be ahead, even as prison costs — especially medical costs — increase, a variety of advocacy groups are pushing for fewer Texans in prison. Medlock suggests that the state Board of Pardons and Paroles should release Texas' "most medically expensive and least criminally dangerous" prisoners — a group that could include several hundred.
Ten convicts alone racked up more than $6.1 million in medical bills during 2010 — including one 45-year-old prisoner whose treatment cost more than $1.2 million, internal prison-system statistics show. Under current law, prisoners are not eligible to receive Medicaid. Parolees, however, can.
"Texas inmates aged 55 and older make up about eight percent of the state's prison population, but account for more than 30 percent of the system's hospital costs," Jim Harrington, director of the Texas Civil Rights Project wrote in a letter to the Texas Sunset Advisory Commission, which is reviewing the operations of the prison and parole systems with an eye toward overhaul in 2013.
What should (and what will) be the applicable guideline range for Blago?
What is expected to be a two-day sentencing hearing for former Gov. Rod Blagojevich has now gotten started in a federal district court in Chicago. The action can be followed via live tweets at this link being authored by Chicago Tribune reporter Annie Sweeney in the courthouse for the Blagojevich sentencing hearing. According to her early postings, a few folks were in line at the federal courthouse at 3am this morning to be able to see all the action.
I assume that 99.9% of folks are only interested in the final sentencing term to be imposed by Judge James Zagel on Blago (which is expected to be announced on Wednesday). But, for reasons partially explained in prior posts here and here, I am perhaps most interested from the outset to see how Judge Zagel calculates the guideline range. My guess, without having given any serious attention to any of the guideline calculation disputes, is that he will end up largely splitting the difference in some manner between the extreme ranges calculated by the parties. (A calculation winding up in the neighborhood of 10 to 15 years would be my bet, and then an ultimate sentence imposed somewhere slightly above or below the calculated range.)
As the title of this post suggests, I am eager to hear from any and all hard-core federal sentencing fans about just what they think the "right" guideline calculation is. Importantly, guideline calculations are not supposed to be matters of discretion: the applicable guidelines law and findings of fact should completely script the guideline calculation outcome. In reality, though, these calcultions in contested cases always involve judgment calls by judges as fact-finders that often seem a lot more like the exercise of discretion and a lot less like the application of sentencing law.
Some recent and older related posts on the Blagojevich case:
- You make the sentencing call: What sentence should Blago get?
- Early buzz that feds think Rod Blagojevich's guideline range is 30 years to life in prison
- Feds asking for prison term of 15 to 20 years for Rod Blagojevich
- Insightful commentary questions why Blago is getting huge break from federal prosecutors
- "Prison is too good for Blago"
- Bold (and misguided?) prediction of 20-25 years in the federal pen for Blago
- Do would-be white-collar offenders actually "get the message" from long sentences?
- Blagojevich sentencing and the failings (and limits?) of the federal sentencing guidelines
New scholarship looks at Mitt Romney's efforts to create a "foolproof" death penalty for Massachusetts
I am intrigued and pleased to see this new piece by Russell Murphy posted on SSRN, which is titled "Execution Watch: Mitt Romney’s 'Foolproof' Death Penalty Act and the Politics of Capital Punishment." I have long thought there was much to learn about both Mitt Romney and about the death penalty from a look at then-Massachusetts Governor Romney's efforts to bring the death penalty back to the Bay State. This article looks like it will be covering all this ground according to this abstract:
This article presents a legal and political analysis of the 2003 - 2005 effort of Governor Mitt Romney to make the death penalty available as a sentencing option in Massachusetts. It begins with a description of the history of capital punishment in the state as context for Mr. Romney’s creation of the Governor’s Council on Capital Punishment. The Council’s mandate, recommendations, and Final Report are set forth, followed by a summary of proposed legislation based thereon.
Public, media, and academic reactions to the Governor’s plan are the basis for an analysis of the political implications of this undertaking, framed by the question “Was Governor Romney primarily interested in making good public policy or in advancing his political ambitions to be President of the United States?” The article then takes an objective look at the merits of the Romney plan in terms of current understandings about the practice and policy of capital punishment in the United States. With the defeat of the Romney bill and the strength of the legislative rejection of the death penalty in Massachusetts as a backdrop, the article concludes with a focus on what this process teaches about Mr. Romney’s governing style and the strength of his political beliefs.
New corrections report from Minnesota shows positive impact of positive visits
This local article from Minnesota, which is headlined "Visits paid to prison pay off: Inmates who get visitors are less likely to commit crimes again, a Corrections study finds," reports on some positive findings from a recent state study. Here are the basics:
It turns out [inmate] visits, though they seem mundane, play a significant role in improving public safety and reducing corrections costs. Inmates who receive regular visits from family, friends and volunteers are much less likely to be convicted of a felony once they leave prison because they develop strong support networks while imprisoned, according to a study just completed by the state Department of Corrections (DOC).
Although it may seem obvious, the finding could trigger changes across Minnesota's state prison system. It will likely prompt the Corrections Department to extend visiting hours, address decrepit conditions in visiting areas and reach out for volunteers to spend time with prisoners who've been abandoned by family.
"The ability to make a successful transition from prison to rebuilding a normal life can be measured by visits and shows there are significant savings in public safety costs," said Grant Duwe, DOC's director of research. "Just going back to prison for a technical violation of probation violation costs $9,000 a pop, so you can see how it becomes expensive."
Using a sample of 16,400 prisoners released from Minnesota's correctional system between 2003 and 2007, Duwe evaluated the relationship between prisoner visits and recidivism. He found that inmates who get regular visits are 13 percent less likely to wind up back in prison because of new felonies and 25 percent less likely to commit probation violations that would put them back behind bars.
"We're trying to get past the point in corrections where we just used our intuition about what works," said David Crist, assistant Corrections commissioner. "In today's state government, that is not enough to make changes a reality."
At the same time, the study exposed a glaring issue Corrections officials realize they must address: Roughly four in 10 inmates in the sample never received a visitor. Such offenders face huge obstacles to creating a new life after prison because they haven't developed a network of people who can help with jobs, housing and transportation. "Because many offenders have burned bridges with loved ones by the time they reach prison, facilitating visits from friends and family may not be an option,'' Duwe observed.
Among other key findings:
• It matters who shows up. Visits from siblings, in-laws, fathers and clergy were most likely to cut recidivism. Visits by mentors and clergy cut the risk of reconviction by more than 25 percent.
• Conversely, visits by ex-spouses actually increased the chance that a prisoner would re-offend. That may reflect conflict in severed relationships, which can create instability in an ex-offender's life.
• Frequency matters. Inmates visited more often were less likely to wind up back in prison after their release. The average number of visits per inmate was 36, nearly two visits each month. And visits closer to an offender's release date did more to reduce criminal behavior later.
"Innocence Commissions and the Future of Post-Conviction Review"
The title of this post is the title of this newly revised paper on SSRN authored by Professor David Wolitz. Here is the abstract:
In the fall of 2006, North Carolina became the first state to establish an innocence commission — a state institution with the power to review and investigate individual post-conviction claims of actual innocence. And on February 17, 2010, after spending seventeen years in prison for a murder he did not commit, Greg Taylor became the first person exonerated through the innocence commission process. This article argues that the innocence commission model pioneered by North Carolina has proven itself to be a major institutional improvement over conventional post-conviction review.
The article explains why existing court-based procedures are inadequate to address collateral claims of actual innocence and why innocence commissions, due to their independent investigatory powers, are better suited to reviewing such claims. While critics on the Right claim that additional review mechanisms are unnecessary or too costly, and critics on the Left continue to push for a court-based right to innocence review, the commission model offers a compromise that fairly balances the values of both finality and accuracy in the criminal justice system.
At the same time, I argue, the North Carolina commission suffers from the tension – inherent in all expert agencies — between efficiency and discretion, on the one hand, and procedural fairness and accountability, on the other. I offer several suggestions for reform of commission procedures to help insure that none of these values is overwhelmed by the others. Overall, the record of the North Carolina commission demonstrates that the commission approach can provide justice where the traditional court system has failed, and, with the reforms I suggest here, it ought to be a model for states across the country.
December 5, 2011
Blagojevich sentencing and the failings (and limits?) of the federal sentencing guidelines
Though I mentioned this point in this post with links to the latest sentencing filings in US v. Blagojevich, on the eve of the high profile sentencing of former Gov. Rod Blagojevich, I want to highlight again the profound failings of the federal sentencing guidelines in this matter. While much has and will be said about just what might be a fair and effective sentence for Rod Blagojevich, my point in this post is to highlight the abject failure (and perhaps the inevitable failure) of the federal sentencing guidelines to really help resolve this issues.
As all readers of this blog likely know, the primary reason and goal of modern federal guideline sentencing reform was to develop a set of detailed sentencing rules that would facilitate greater certainty and consistency in federal sentencing. This legal reform project has been controversial and contested for decades now, and the Supreme Court's landmark ruling in Booker only added to the controversial and contested nature of modern debates over federal sentencing processes and outcomes. The focal point of much of this debate has been the soundness of the substantive sentencing rules set forth in the guidelines and the authority of both federal prosecutors and federal judges to decide whether and when sentences would be imposed outside the guideline rules.
But in the Blagojevich case, a case in which all significant facts have been (thoroughly?) developed in the course of two trials and through an extraordinarily extensive and high-profile investigation, we are presented in full relief the inability of just the guidelines themselves to effectively narrow the legally viable sentencing possibilities. When the federal prosecutors "run the numbers" under the guidelines, they believe the law calls for a (now advisory) guideline range of 30 years to life; when defense attorneys run the same legal numbers, the come to the view that the law advises a guideline range of 41 to 51 monthsin prison. The Probation Office prepared a presentence report that has yet a different calculation between these extremes, and it is possible (perhaps probable) that the sentencing judge at tomorrow's sentencing will arrivae at yet another distinct understanding of what the applicable guideline law formally advises as a sentencing range.
All legal rules, especially in hotly contested cases like US v. Blagojevich, will have some variation in their application based on partisan perspectives. But when the sides can and do run the numbers in such extremely disparate ways (from a recommendation of just over three years to life in prison!), and when neutral adjudicators are seeing the law in still other different ways, seeking greater certainty and consistency from "sentencing law" is really shown to be just a pipe dream. And though one might assert that "better" sentencing guideline could and would produce more certainty and consistency, I want to suggest here that there may be limits on what sentencing law can every reasonably expect to achieve in these sorts of settings.
My point here is not to assail the entire reform project of sentencing guidelines, but rather to highlight that the Blago sentencing showcases that the current federal guidelines are problematic regardless of whether they are "mandatory" or "advisory." In this case, and perhaps in far too many others, the legal rules themselves fail to really provide real guidance (let alone true wisdom) concerning what a fair and effective sentence might actually be.
Some recent and older related posts on the Blagojevich case:
- You make the sentencing call: What sentence shouldBlago get?
- Early buzz that feds think Rod Blagojevich's guideline range is 30 years to life in prison
- Feds asking for prison term of 15 to 20 years for Rod Blagojevich
- Insightful commentary questions why Blago is getting huge break from federal prosecutors
- "Prison is too good for Blago"
- Bold (and misguided?) prediction of 20-25 years in the federal pen for Blago
- Do would-be white-collar offenders actually "get the message" from long sentences?
December 5, 2011 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack
US Sentencing Commission releases fourth quarter of FY 2011 federal sentencing data
The US Sentencing Commission has some fresh new federal sentencing data just up on its website. The USSC's latest data report, which can be accessed here, is described this way:
Fourth Quarter FY11 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during fiscal year 2011. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published December 5, 2011)
As I have noted repeatedly in prison posts with other federal sentencing data runs, these data showcase the enduring reality that federal prosecutors, not federal judges, continue to be the primary driving force behind below-range sentences. The latest quarter of data reveal a government-sponsored below-guideline sentencing rate of 26.2% and a judge-initiated below-guideline sentencing rate of 17.1%. In other words, during the latest quarter for which we have sentencing data, federal district judges decided to go below the guidelines on their own in only about one out of every six case, but they went below the guidelines upon a recommendation by prosecutors in more than one out of every four cases.
These cumulative data also show that for certain types of offenses, most notably child pornography and money laundering offenses, a within-guideline sentence is much less likely than a below-guideline sentence. The data indicate that in these categories and a few others, only roughly about one in three offenders get a within-guideline sentences while nearly two-thirds get a below-guideline sentence. (That fact alone would seem to provide a sound reason for the US Sentencing Commission to consider revising these guidelines downward; but, any downward adjustment in the guidelines is always much easier to propose than to make happen.)
Ninth Circuit applies Tapia rule to supervised release revocation sentences
It is possible (probably?) that only hard-core federal sentencing fans will understand either the title of this post or the significance of the Ninth Circuit's work today in US v. Grant, No. 10-10245 (9th Cir. Dec. 4, 2011) (available here). With luck, these final substantive paragraphs from the Grant (with footnote cites removed) opinion will explain in more detail what this post is all about and why this issue might be of interest to at least a few folks beyond hard-core federal sentencing fans:
Two of our sister circuits have divided on whether Tapia applies to imprisonment on revocation of supervised release. The First Circuit held in United States v. Molignaro that courts are not permitted to consider rehabilitation when they are revoking a term of supervised release, just as they are not permitted to do so when they initially sentence a defendant to prison or lengthen his prison sentence. Molignaro takes special note of the incapacity of the sentencing court to require the Bureau of Prisons to enroll a prisoner in a particular rehabilitation program after revocation of supervised release, the same reason that Tapia noted in the context of an initial sentence. The Fifth Circuit in United States v. Breland goes the other way, noting that the supervised release statute directs a court to certain Section 3553 factors, including rehabilitation, and does not include the “recognizing that . . .” prohibition.
We think that the First Circuit has the better of the arguments. The point in Molignaro about the incapacity of the revoking court to order what it considers to be appropriate rehabilitative measures outweighs the cross-referencing argument in Breland. The “recognizing that . . .” phrase does not limit itself, by its words, to initial sentencing, but appears to embrace all sentences of imprisonment. We recognize that sentencing judges may have a hard time following Tapia’s command: “Do not think about prison as a way to rehabilitate an offender.” “[R]etribution, deterrence, incapacitation, and rehabilitation,” the “four purposes of sentencing,” sound more distinct than they really are. A judge may reasonably think that retribution and incapacitation will most effectively rehabilitate the criminal being sentenced. Punishment for wrongdoing is “classical conditioning whose effects we ordinarily identify as conscience,” so the verbal difference between punishment and rehabilitation may obscure the fact that they are often the same thing. We make a child behave by telling him to go to his room, and we make an adult behave by telling him to go to his room, only his room has bars. Hopefully both the child and the adult will internalize a sense of wrongdoing attached to whatever conduct caused their confinement.
Nevertheless, Tapia is the controlling statutory construction. So prison, whether as an initial sentence or on revocation of supervised release, can be imposed and the duration selected only for purposes of retribution, deterrence, and incapacitation, not rehabilitation. When a judge imposes prison, he may wisely believe that it will have rehabilitative benefits, but those benefits cannot be the reason for imposing it. On revocation of supervised release, district judges must make and articulate their imprisonment decisions in terms of the other legitimate sentencing criteria. This rule applies both when determining whether to impose imprisonment and when determining the length of the prison sentence.
Professor Becker and Judge Posner examine mass incarceration in the US
This week's topic on "The Becker-Posner Blog" is the question "Does America Imprison Too Many People?." Regular readers likely know that I think the answer to the question in yes, and Professor Gary Becker and Judge Richard Posner also seem to come to this conclusion. Here are the concluding paragraphs from Professor Becker's analysis of the question:
Elsewhere I have discuss why the US should decriminalize and legalize drugs (see, for example, my post on 3/20/2005 called “The Failure of the War on Drugs”). If the US were to do that, the prison population would eventually fall by over 30%. The imprisonment of blacks and women would fall by even larger percentages since these groups are more likely to be in prison on drug-related charges. Such a policy change would also release police and other resources that have been used to catch and punish drug dealers to concentrate on crimes where victims suffer great harm. These crimes would then fall, perhaps because more offenders would be caught and imprisoned. The US might still imprison a larger fraction of its population than peer countries, but the differences would become much smaller than at present.
Imprisonment should be rarely used also for other victimless crimes, for crimes that do not greatly harm victims, and for crimes where victims can be adequately compensated by fines and other monetary punishments. In these cases, punishment should consist of fines, probation, and other ways that do not require imprisonment. Eliminating imprisonment for drugs and other victimless crimes,and for many other crimes would cut greatly the US’ bloated prison population, reduce the spending on prisoners, and cut down the depreciation of the market skills of offenders who did not commit serious crimes.
Here are the concluding paragraphs from Judge Posner's analysis of the question:
There are a number of other possible explanations for the conjunction of a high rate of imprisonment with a high crime rate. One is not enough police, or intelligent enough police, to prevent and detect crime effectively. Another is a high elasticity of supply for criminal activity, so that discouraging or preventing one person from committing crimes induces someone else to enter the crime industry. Another (suggested above) is that we define crime too broadly, criminalizing activities that in other countries are lawful; our high rate of sexual offenses against minors is a function in part of a high age of consent (18). Or we may make too little use of fines, and of regulatory and private-litigation alternatives to criminal punishment. The prevalence of gun ownership may be a factor, along with the proximity to the United States of countries in Latin America that are large producers of illegal drugs. And finally crime rates are particularly high in the southern states of the United States, and that may have deep cultural roots.
Reform is difficult when the causes of a problem are multiple or unknown. And because the direct monetary costs of the criminal justice system are not very great by current standards (only about $40 billion a year), and there is strong hostility among the general public to criminals (another cultural fact, perhaps), and because our huge prison system provides a great deal of employment, there is no pressure for reform. Yet the indirect costs of high levels of incarceration must be very great, in the form of the lost output of the large number of prisoners, most of whom are of working age.
Investigation reveals (shockingly?!?!) that politicians and politics impact federal pardons
As noted here yesterday, ProPublica has now produced this series of important new articles under the banner "Presidential Pardons: Shades of Mercy." Today's installment is headlined "Pardon Applicants Benefit From Friends in High Places," and here are excerpts from data reported in the piece:
Since 2000, a total of 196 members of Congress — 126 Republicans and 70 Democrats — have written to the pardons office on behalf of more than 200 donors and constituents, according to copies of their letters obtained through the Freedom of Information Act. Many of the letters urged the White House and the Justice Department to take special note of felons whom lawmakers described as close friends.
A statistical analysis of nearly 500 pardon applicants during the Bush administration suggests that advocacy makes a difference. Applicants with a member of Congress in their corner were three times as likely to win a pardon as those without such backing. Interviews and documents show a lawmaker’s support can speed up a stalled application, counter negative information and ratchet up pressure for an approval.
[Roger] Adams, who ran the Justice Department’s pardons office from 1998 to 2008, acknowledged the potential value of congressional letters. “If the official does know the person,” Adams said, “it gives it some weight.”
A Justice Department spokeswoman said that the agency would not comment on any individual cases but added that the process is not subject to influence. “Any third party is free to express support for a pardon request, and those letters are part of the executive clemency file,” the spokeswoman said. “The title or position of the third party who expresses his support does not play a role in the review process.”
A ProPublica analysis of presidential pardons published Sunday revealed a pattern of racial disparities in pardon awards. The review found that white applicants were nearly four times as likely to receive pardons as all minorities combined. Congressional influence did not account for the racial disparity.
Of the 54 applicants with congressional support for whom ProPublica was able to determine race, 47 were white, five were black and two were Hispanic.
I am not at all surprised to see data confirming the well-known anecdotes of prominent politicians playing a prominent role in helping a pardon applicant. Indeed, I would be much more shocked if the ProPublica research revealed that politicians and politics had little impact on this process.
I find a bit curious the assertion in this piece that "[c]ongressional influence did not account for the racial disparity" in clemency grants given the subsequent indication that congressional support was very disproportionately brought to bear on behalf of white applicants. I assume ProPublica sought to control for congressional support when it "ran" the race data, but I wonder whether the intersection of congressional support AND criminal history AND socio-economic realities may together help explain some of the racial disparity data.
I will comment more on the ProPublica reports after I have a bit more time to consume and review all the data and extraordinary documents that appear on the web now. But nothing I have seen so far has change my long-standing view — which I have expressed on this blog and in a recent law review article — that there ought to be a federal clemency commission set up to be entirely distinct from the Justice Department with the responsibility and obligation to recommend a (large?) number of cases to the President for which clemency ought to be granted. I have long thought the federal pardon process (and not just the result) was badly broken, and these new reports about the results only confirm my views here.
When might media (or GOP opponents) discuss Newt Gingrich's "Right on Crime" positions?
Today's USA Today has this new piece on the GOP presidential campaign headlined "All eyes on Newt Gingrich in GOP race." The piece would be misleading if it were titled "Eyes looking at all of Newt," however, because there has not been yet any mention — let alone any extended examination — of Newt Gingrich's prominent position within the important new "Right on Crime" organization.
Regular readers may recall my emphasis on Gingrich's active and vocal involvement in the Right on Crime Campaign a little more than a year ago, and my excitement when he 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." My hope was that, especially as Gingrich announced his interest in the presidency, that Gingrich's role in "Right on Crime" would foster a more dynamic and politically balanced discussion of a number of important crime and justice issues in the presidential campaign. So far, though, despite Gingrich's rising poll numbers, the "Right on Crime" campaign has not even made a blip on the media radar. (I have not seen any new media discussion of these matters; this post is meant as a criticism of not just the MSM on this front.)
Regular readers are likely already tired of hearing me whine about the failure of the GOP candidates to engage with any crime and punishment issues on the campaign trail. But when Bachmann and Cain were flavors of the month, this was more understandable because of a lack of a real record on these issue. But Gingrich not only has a record, he has made important (and controversial?) comments on these fronts that should be getting at least some media attention as part of Newt-mania.
Perhaps Gingrich's opponents will be the one who see an opportunity here. I would certainly not put it past Romney or others to try out some old "soft on crime" rhetoric if/when they decide they cannot get other attacks to stick in the weeks ahead. Sadly, because of the media's failure to cover these important public policy matters, I am almost hoping that they do.
Some recent and older related posts on Gingrich and the modern politics of sentencing issues:
- Newt Gingrich says "criminal justice system is broken, and conservatives must lead the way in fixing it"
- Will Newt Gingrich's statements about a "broken" criminal justice system get attention as he launches a run for President?
- New GOP front-runner Newt Gingrich talking up death penalty for drug kingpins
- "Right on Crime: The Conservative Case for Reform" officially launches
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- "Conservatives latch onto prison reform"
- When and how will state GOP leaders start cutting expensive criminal justice programming?
- New poll reports that large majority of Americans consider "War on Drugs" a failure
- Can GOP "Pledge to America" be read to suggest drawing down federal involvement in the drug war?
- What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
December 4, 2011
"Path to execution swifter, more certain in Va."
The title of this post is the headline of this lengthy article, which gets started this way:
Serving life in prison without possibility of parole, Robert C. Gleason opted to die by execution instead of old age and is Virginia's newest death-row inmate.
He earned the distinction by killing fellow prisoners in the state most likely to grant his wish. Since executions resumed in 1977, nearly three out of four condemned prisoners in Virginia have been put to death, the nation's highest rate.
Texas, which leads the United States in number of executions, is second to Virginia, carrying out less than half its death sentences. In most death-penalty states, the ratio is fewer than 1 in 10.
While Virginia's record is clear, its causes and implications are in dispute.
Authorities say Virginia's capital-murder law was tightly written and that trial and appeal courts here do a better job than elsewhere; critics argue Virginia trials have plenty of errors and that unlike elsewhere, appeals courts fail to catch them.
"I think the answer is that there is a little truth in both views," said Richard J. Bonnie, director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia. "Virginia's law was indeed more tightly drafted, but post-conviction review is less aggressive than in other states."
Insightful commentary questions why Blago is getting huge break from federal prosecutors
Alison Siegler, who directs the Federal Criminal Justice Clinic at the University of Chicago Law School (and who once honored me with an invite to her class there), has this fantastic new op-ed in the Chicago Tribune, which is headlined "The advantage of being Blago." Here is the text, every line of which merits emphasis:
Rod Blagojevich is a lucky man. He is lucky that the U.S. attorney's office is asking U.S. District Judge James Zagel to send him to prison for only 15 to 20 years. He is lucky that the prosecution is not asking for him to do 30 years to life in prison, which is the amount of time called for by federal sentencing guidelines — the laws that set punishment in federal cases based on the severity of the crime.
Blagojevich is especially lucky that he is not my recent client, a drug-addicted man who grew up on the South Side and pleaded guilty to selling two ounces of drugs to a government informant for $200. I represented this man, and the same U.S. attorney's office asked Zagel to follow the sentencing guidelines strictly and send him to prison for up to 27 years. Luckily for Blagojevich, the prosecutors filed a motion asking for a far lighter sentence for the former governor who, they themselves contend, deeply damaged the integrity of the political system by trying to hand over a U.S. Senate seat in exchange for $1.5 million in donations and then blatantly lied about his conduct on the stand.
The U.S. attorney's office is treating Blagojevich shockingly differently than it treats poor, minority defendants charged with less serious crimes. I have been representing indigent defendants in Chicago for nearly a decade, and in almost every one of the hundreds of cases I have litigated, the U.S. attorney's office has asked for the guidelines sentence, which is usually quite harsh. But in Blagojevich's case, the prosecution has asked the judge to chop the guidelines sentence in half.
It might be different if the prosecution's request for a sentence below the guidelines were supported by facts about Blagojevich or his offense that merit leniency. But the prosecution argues strenuously that Blagojevich's personal circumstances do not warrant mercy and that his crimes were heinous and driven by greed. They wax rhapsodic about his "extensive corruption of high office." And then they inexplicably request a sentence that is fully 10 to 15 years lower than the sentence they would request if this were an ordinary case.
Perhaps the prosecution's request in the Blagojevich case is driven by a sense that the guidelines sentence is not always the just sentence. If so, the prosecutors should also take a hard look at their practice of requesting guidelines sentences for indigent defendants, and should question whether it is fair to demand that a man spend up to 27 years in prison for selling a small amount of drugs to their own informant.
Otherwise, the prosecution's sentencing request is not fair. The inescapable message the request sends is that the lives of privileged defendants who have been given every opportunity and have nevertheless flagrantly violated the public's trust are worth more than the lives of impoverished defendants who have caused far less societal harm. This message undermines the public's faith in the fairness of the system and reinforces the perception that there are two very different kinds of justice, one for the haves and the other for the have-nots.
Before sentencing day(s) this coming week, I will have a series of addition posts that will discuss some of the additional insights we can and should take away from the run up to Blago judgment day.
"Presidential Pardons Heavily Favor Whites"
The title of this post is the headline of this main article in a new investigative report from Pro Publica. The piece is the lead story in this series of important new articles under the banner "Presidential Pardons: Shades of Mercy." Here is the start of the lead piece:
White criminals seeking presidential pardons over the past decade have been nearly four times as likely to succeed as minorities, a ProPublica examination has found.
Blacks have had the poorest chance of receiving the president's ultimate act of mercy, according to an analysis of previously unreleased records and related data.
Current and former officials at the White House and Justice Department said they were surprised and dismayed by the racial disparities, which persist even when factors such as the type of crime and sentence are considered.
"I'm just astounded by those numbers," said Roger Adams, who served as head of the Justice Department's pardons office from 1998 to 2008. He said he could think of nothing in the office's practices that would have skewed the recommendations. "I can recall several African Americans getting pardons."
The review of applications for pardons is conducted almost entirely in secret, with the government releasing scant information about those it rejects.
ProPublica's review examined what happened after President George W. Bush decided at the beginning of his first term to rely almost entirely on the recommendations made by career lawyers in the Office of the Pardon Attorney.
The office was given wide latitude to apply subjective standards, including judgments about the "attitude" and the marital and financial stability of applicants. No two pardon cases match up perfectly, but records reveal repeated instances in which white applicants won pardons with transgressions on their records similar to those of blacks and other minorities who were denied.
Senior aides in the Bush White House say the president had hoped to take politics out of the process and avoid a repetition of the Marc Rich scandal, in which the fugitive financier won an eleventh-hour pardon tainted by his ex-wife's donations to Democratic causes and the Clinton Presidential Library.
Justice Department officials said in a statement Friday that the pardon process takes into account many factors that cannot be statistically measured, such as an applicant's candor and level of remorse.
"Nonetheless, we take the concerns seriously," the statement said. "We will continue to evaluate the statistical analysis and, of course, are always working to improve the clemency process and ensure that every applicant gets a fair, merit-based evaluation."
Bush followed the recommendations of the pardons office in nearly every case, the aides said. The results, spread among hundreds of cases over eight years, heavily favored whites. President Obama -- who has pardoned 22 people, two of them minorities -- has continued the practice of relying on the pardons office.
"President Obama takes his constitutional power to grant clemency very seriously," said Matt Lehrich, a White House spokesman. "Race has no place in the evaluation of clemency evaluations, and the White House does not consider or even receive information on the race of applicants."
I will have a lot of opinion about this important series of pieces in some later posts after I get a chance to consume of the information that is hear. I will begin (for the benefit of commentor Paul and others) by suggesting that this report should prompt the Justice Department to commit itself to understanding the troublesome disparities evident in the exercise of executive sentencing discretion before it spends any more time complaining about the post-Booker exercise of judicial sentencing discretion.