February 4, 2011
"Empirical Desert and the Moral Economy of Punishment"
The title of this post is the title of this new piece by Professor Zachary Calo available via SSRN. Here is the abstract:
This paper considers Paul Robinson's theory of empirical desert as an argument for moving beyond the debate between utilitarian and retributivist accounts of punishment. It is argued that empirical desert, in its attempt to replace philosophy with the insights of the social and biological sciences, fails to ground the foundational act of punishment in an adequate theoretical warrant. A particular problem confronting empirical desert is that while Robinson shifts the locus of punishment from theory to the intuitions of the relevant community, he does not adequately account for the dynamic process by which communities shape and structure their internal moral life. As such, the normative nature of punishment is lost in an attempt to salvage it.
Intriguing little Sixth Circuit ruling on clemency procedure
Ralph Baze, the Kentucky death row prisoner whose name is attached to the leading Supreme Court ruling on modern execution methods, helped make a little more sentencing law today. In Baze v. Parker, No. 10-5584 (6th Cir. Feb. 4, 2010) (available here), a Sixth Circuit panel today addressed Baze's effort to get federal court help with his clemency application. Here is how the opinion in this case begins:
Ralph Stevens Baze, Jr., a Kentucky inmate on death row, wishes to interview prison personnel to support his application for clemency. After the Kentucky Department of Corrections (“KDOC”) denied Baze’s request for unfettered access to these personnel, Baze sought relief in district court with a motion to order KDOC to allow him to conduct his desired interviews. The district court denied Baze’s motion for a want of jurisdiction, and we affirm.
February 3, 2011
"The Economist’s Guide to Crime Busting"
The title of this post comes from the title of this article appearing in the Winter 2011 issue of The Wilson Quarterly. The issue has a series of article on mass incarceration with this lead-in: "Seven million Americans are in prison or on probation or parole. Crime is down, but state prison budgets have ballooned. A new war on crime must focus on reducing repeat offenses by ex-inmates and steering more young people away from crime."
The folks at The Crime Report have made the article linked above available via this post where they summarize the article's three chief innovative ideas: " raise the minimum age at which adolescents can legally leave school, encourage more 'business improvement districts,' and increase taxes on alcoholic beverages." And here is the piece's closing paragraph:
These and similar ideas represent a new frontier in thinking about crime. Whatever one thought of the old formula of putting more and more people behind bars, it is simply no longer affordable. Likewise, the old debate between hard and soft approaches to crime has been exhausted. The line between those false extremes is being blurred by new approaches that recognize that we can deter crime by improving peoples’ life chances, and that coercion can in some cases be a key element of such efforts, as with compulsory schooling laws. As in medicine, an ounce of prevention is worth a pound of cure. We must learn to think of programs as various as preschool education and drug treatment as elements of our crime-fighting strategy. America’s next war on crime must look at the full spectrum of solutions and pay special attention to giving those people who are most likely to turn to crime the skills and incentives to make a better choice.
Charlie Manson (and lots of other California prisoners) getting access to cell phones
I am having a hard time avoiding giving some humorous spin to the news that mass murderer Charlie Manson and many others in California's prisons apparently have little problem getting access to cell phones. This lengthy Los Angeles Times article, headlined "Lawmakers say guards union is a key obstacle in effort to keeping cellphones out of prisons," provides some interesting backstory:
Lawmakers struggling to keep cellphones away from California's most dangerous inmates say a main obstacle is the politically powerful prison guards union, whose members would have to be paid millions of dollars extra to be searched on their way into work.
Prison employees, roughly half of whom are unionized guards, are the main source of smuggled phones that inmates use to run drugs and other crimes, according to legislative analysts who examined the problem last year. Unlike visitors, staff can enter the facilities without passing through metal detectors....
Brown, whose campaign received generous financial support from the union and who made one of his few public appearances between the November election and his January inauguration at the union's annual convention in Las Vegas, would not say whether searches are under review. "Our office does not discuss the details of pending contract negotiations," said Brown spokesman Evan Westrup, who noted that the prison system is testing technology to block cellphone calls in prisons.
More than 10,000 cell phones made their way into California prisons last year -- up from 1,400 in 2007, said corrections spokeswoman Terry Thornton. Two of those wound up in the hands of Charles Manson, who is serving a life sentence for ordering the ritualistic murders of actress Sharon Tate and six others in 1969.
The phones can fetch as much as $1,000 each behind prison walls, according to a recent state inspector general's report, which detailed how a corrections officer made $150,000 in a single year smuggling phones to inmates. He was fired but was not prosecuted because it is not currently against the law to take cellphones into prison, although it is a violation of prison rules to possess them behind bars....
Prison officials added 30 days to Manson's sentence after guards found an LG flip phone under his mattress in March 2009. They found him with a second phone, equipped with a camera, on Jan. 6, Thornton said. She declined to provide details about where Manson got the phone, saying the case is still under investigation.
My desire to add some levity to this serious story comes from thinking about the kind of iPhone or Droid commercial that might be imagined with Manson as a spokesperson. Or, alternatively, maybe somebody can devise an especially fitting new phone app for the apparently burgeoning prisoner cell-phone marketplace (especially since Angry Birds might give prisoners some bad ideas).
Given that Audi is previewing a Super Bowl ad features Kenny G as prison warden, the idea of turning this Manson story into a marketing ploy may already be on the minds of the folks on Madison Avenue. Perhaps Manson keeps trying to get a cellphone so he can call an agent.
Another litigation front, now involvign the FDA, in the battles over lethal injection drugs
As detailed in this USA Today piece, yesterday lawyers who represent "six death row prisoners sued the U.S. Food and Drug Administration ... in an attempt to block the importation of a key drug used by states to perform executions by lethal injection." Here is more:
The lawsuit, filed on behalf of prisoners in Arizona, California and Tennessee, alleges that the FDA allowed states to import unapproved supplies of sodium thiopental in violation of federal regulatory laws....
"Because unapproved sodium thiopental has not been shown to work as intended, using it in executions creates unacceptable risks that prisoners will not be properly anesthetized before the other drugs used in lethal injection protocols stop the prisoners' breathing and induce cardiac arrest," attorney Bradford Berenson said. "Whatever one's views may be on the death penalty, no reasonable person is in favor of botched or inhumane executions."
The lawsuit alleges that large amounts of unapproved sodium thiopental have been imported by at least six states: Arkansas, Arizona, California, Georgia, Nebraska and Tennessee.
The death-row inmates are represented by powerhouse law firm Sidley Austin and partner Bradford Berenson, a former associated counsel to president George W. Bush. “The FDA is improperly allowing drugs into the United States even though it won’t stand behind their safety and efficacy,” he said.
Berenson notes that he’s “never had a moral problem with the death penalty.” But, he said, thiopental serves a critical role in executions of rendering condemned inmates unconscious, so that they do not suffer severe pain during the process. “What we are trying to prevent with the suit are inhumane executions,” he said.
Ohio on path to turning to treatment over prison for non-violent drug offenders
As detailed in this local article, Ohio is yet another state with newly elected conservative leadership getting behind sentencing and prison reform programming. Here are the basics:
A proposed overhaul of Ohio's criminal-justice system rolled out yesterday, supported by top officials in all three branches of government, contains elements that politicians and voters flatly rejected in the past: shortened sentences for inmates who complete certain programs in prison, and diverting nonviolent drug offenders to treatment instead of prison.
The state's much-heralded 1996 Truth in Sentencing Law banished "good-time" provisions and established fixed-term sentences for most offenses. In 2002, Ohio voters soundly rejected a statewide ballot issue advocating "treatment instead of incarceration" for nonviolent drug offenders. However, since then the prison population has grown to nearly 51,000 (33 percent over design capacity) and state money for prisons has shrunk.
As a result, a sweeping criminal-justice reform plan submitted by the Council of State Governments and other groups was enthusiastically embraced yesterday by state officials. Senate Bill 10, a version of the proposed reform plan, was introduced Tuesday with bipartisan support. A mirror version of the bill is to be introduced in the House.
State Sen. Bill Seitz, R-Cincinnati, who has advocated similar prison reforms for the past two legislative sessions, was an enthusiastic cheerleader at a Statehouse news conference. "My mother used to tell me you can't fit 10 pounds in a 5-pound bag. That's what we're trying to do in Ohio," Seitz said. "The time for talk is over. No more sticking our heads in the sand."...
If fully implemented, the plan promises savings of $62million over four years ($20million of that would be spent to improve probation programs) and a reduction in the state prison population to its 2007 level. It also would avoid the need to spend hundreds of millions on prison construction and operations when the state faces a potential $8billion budget shortfall....
Seitz said the Kasich administration supports the proposal, as do the American Civil Liberties Union, the Buckeye Institute and the Ohio Chamber of Commerce.
However, the Ohio Prosecuting Attorneys Association still has concerns, principally because of the earned-credit provision. John Murphy, head of the association, said he is sympathetic to financial concerns, but that provision violates the Truth in Sentencing Law. "Public safety is the first responsibility of the state of Ohio," Murphy said. "You don't write sentences to fit the budget."
The full report can be accessed online at this link.
A snow job suggestion for Illinois Governor Pat Quinn on the death penalty
Illinois Governor Pat Quinn has now had a death penalty repeal bill sitting on his desk for nearly a month now, and I found notable and amusing this new commentary via the Chicago Tribune. The piece is headlined "Death penalty bill: Time for Quinn to employ the 'in other news' strategy," and here are excerpts:
This would be an excellent time for Gov. Pat Quinn to announce his decision on the bill to abolish capital punishment in Illinois. He's allegedly been pondering this long and well-pondered issue since the proposal landed on his desk Jan. 11, as if there's some new angle that a sentient politician in Illinois hasn't considered as this issue has raged here in the past decade....
[M]any people are going to be outraged and disappointed by Quinn's decision, no matter what it is (and I still think he'll sign the bill). This extended period of alleged contemplation isn't going to make them any less outraged or disappointed. In fact, they may be more outraged and disappointed (You had all these weeks and you still didn't grasp the fundamental righteousness of our position?!?).
Announcing a decision this week, when the snowstorm is just about all anyone is talking or thinking about, would be good theater and good politics, or at least the best theater and politics he can hope for.
Some recent related posts:
- Illinois state prosecutors lobbying to preserve state's death penalty
- Illinois house in close vote approves death penalty ban
- Possible death penalty repeal in Illinois now in hand of Governor Pat Quinn
- Illinois Gov. Pat Quinn not yet telling (and perhaps not yet sure?) whether he will sign death penalty repeal
- Is there growing momentum behind death penalty repeal efforts?
- "Illinois death penalty decision leaves uncertainty"
- Illinois judge calls Governor Pat Quinn "grossly irresponsible" for dithering on death penalty
February 2, 2011
Health care is a "budget buster" ... for inmates in Minnesota
As detailed in this local article, health care costs keep rising for the incarcerated. The piece is headlined "Inmate health care is a budget buster; Demands for medical and dental care are straining jails as never before, and sheriffs are looking for answers." Here is how it begins:
A Washington County jail inmate, ill with cancer, is driven to a nearby hospital every week for chemotherapy, accompanied by a corrections officer likely to be working on overtime. In Ramsey County, two inmates needed emergency medical care last year that rang up $445,000 in hospital bills and busted the county's budget. Hennepin County was paying so much for jail inmate dialysis that it bought its own machines to do the job.
As lawmakers in Minnesota and Washington, D.C., debate health care and human service programs, county taxpayers wind up footing the bill for people in county custody -- regardless of whether they're convicted of a crime. Authorities note a rise in the number of inmates who have mental health problems, expensive medications and treatments, and a general increase in health care costs. For instance, medicine costs at the Hennepin County jail were $156,000 in 2005 and jumped to $300,000 in 2009. "Add all those things together, and you have a collective mess," said Jim Franklin, executive director of the Minnesota Sheriffs Association.
Federal and state medical assistance programs and many private insurance plans cease once someone enters jail, putting the cost on counties. It's an ongoing issue magnified as government budgets get tighter and funding is slashed or obliterated. "Trying to budget for these costs is a little like roulette because you don't know who's going to be booked for what or who's going to be how ill," said Ramsey County Commissioner Victoria Reinhardt. "We just don't know."
What county officials do know is that they're required by law to pay for inmate medical care, even though they likely won't be reimbursed. They're required to provide essential and reasonable medical and dental care, not things like elective procedures. And when an inmate goes to a hospital, an officer has to be along to guard him or her 24 hours a day, forcing juggling of schedules that often leads to overtime costs. The mandate thrust upon counties also forces them to strike a delicate balance between providing adequate care and making sure they don't open themselves up to legal action for neglect.
I have often joked with my students that the United States already has universal health care; the problem is, one has to commit a crime in order to access this system.
"Massachusetts killing shines light on state parole boards"
The title of this post is the headline of this lengthy and effective article from Stateline.org. Here are excerpts:
The six members of the Massachusetts Parole Board who voted to release Dominic Cinelli from prison in 2008 knew at the outset that he posed a potential danger to society.... “You’re a very, very, very high risk,” Thomas Merigan told Cinelli during their face-to-face meeting, according to video footage obtained by The Boston Globe.
Any misgivings about Cinelli, however, were absent in the parole board’s final vote. Merigan and the other five board members unanimously agreed to release him, finding that he was ready for a transition to society under the supervision of a parole officer. He walked out of a state penitentiary in March 2009.
The parole board’s decision would prove to be a fatal one. On the day after Christmas last year, Cinelli and an accomplice allegedly attempted to rob a Kohl’s department store north of Boston. When police arrived at the scene, Cinelli reportedly drew a gun, and in the shooting that ensued, both the parolee and the officer — a 60-year-old father of three on the verge of retirement — were killed....
All six parole board members who voted to free Cinelli have resigned, and the state has limited parole pending the appointment of a new board. Meanwhile, Governor Deval Patrick and lawmakers from both parties are moving hastily to pass major reforms to ensure a similar crime never happens again. “The outrage is universal,” says Bruce Tarr, the Republican leader in the state Senate.
At the center of the furor over Cinelli is the provision in Massachusetts sentencing law that allows some “lifetime” prisoners to become eligible for parole as long as they have served at least 15 years and did not commit first-degree murder. That provision soon could be rewritten.
But the Cinelli case also calls attention to a different aspect of parole: the qualifications of those who decide whether prisoners should be freed or remain behind bars. Tarr and a bipartisan group of state senators have introduced legislation that would require at least three of Massachusetts’ parole board members to have five years of law enforcement experience apiece. None of those who released Cinelli had previously served in law enforcement — something Tarr sees as a major problem. “History has taught us that a parole board decision can be as important as the original sentence,” he says. “We need to be looking at these people’s qualifications.”
While many states have eliminated parole boards or limited their powers over the years, others still grant them enormous responsibility to manage the prison population. In Massachusetts alone, the parole board held 8,828 face-to-face parole hearings in 2009, granting release to two-thirds of the applicants, according to a report ordered by Patrick following the Cinelli case.
Despite giving parole boards sweeping authority over inmate releases, many states do not require board members to have any specific criminal justice qualifications, according to a 2004 survey by the Association of Paroling Authorities International, the only known overview of state statutes on board member qualifications.
Arizona, for instance, requires only that board members “must have expressed an interest in the state’s corrections system.” Texas law states that members “must be a representative of the general public and must reside in the state two years before appointment.” Nebraska requires that appointees “shall be of good character and judicious temperament,” and Missouri says a parole board member “shall be a person of recognized integrity and honor, known to possess education and ability in decision-making through career experience or other qualifications for the successful performance of their official duties.”
Even states that demand certain academic or professional qualifications typically do not require specific knowledge of parole issues. New Jersey, for example, requires that appointees “shall have training in law, sociology, criminal justice, juvenile justice, or related branches of social services.” West Virginia says they “shall have a degree in criminal justice or like experience and academic training.”
US Sentencing Commission forecasts impact of making new crack guidelines retroactive
I just notice this important new document posted on the US Sentencing Commission's website, which is a USSC memorandum titled "Analysis of the Impact of Amendment to the Statutory Penalties for Crack Cocaine Offenses Made by the Fair Sentencing Act of 2010 and Corresponding Proposed Permanent Guideline Amendment if the Guideline Amendment Were Applied Retroactively." The details of this 60+ page memo are as intricate as the title, though the basic story concerns how many offenders sentenced under the old 100-1 crack guidelines (and the amended version applicable from 2007 to 2010) would benefit from retroactive application of the new 18-1 crack guidelines that the passage of the Fair Sentencing Act produced.
The detailed analysis in this memo defies simplistic summary, especially because lots of assumptions and alternative ideas are built into the crack re-sentencing number-crunching. But these two passages provide the highlights of one key part of the analysis:
This section of the memorandum provides an analysis of the estimated impact of New Crack Amendment BOL 26, should it be made retroactive, on offenders incarcerated as of October 1, 2010, in the federal prison system. This analysis was prepared by the Commission's Office of Research and Data (ORD). ORD estimates that 12,835 offenders sentenced between October 1, 1991, and September 30, 2009 (fiscal years 1992 through 2009), would be eligible to receive a reduced sentence if New Crack Amendment BOL 26 were made retroactive. If these offenders were to receive reduced sentences pursuant to New Crack Amendment BOL 26, the dates on which they would be released would span more than thirty years....
Based on [additional] assumptions, the average sentence reduction for all impacted offenders with sufficient information to perform this analysis would be 22.7 percent (or 37 months, from 163 months to 126 months). Table 6 shows that 7,612 offenders (76.9%) would receive a sentence reduction of 48 months or less. Conversely, 286 offenders (2.9%) would receive a sentence reduction of more than 10 years.
It is interesting to compare this forecast of the impact making the new FSA-inspired crack guidelines retroactive with the USSC's detailed data concerning the actual impact of the 2007 crack guideline reduction being applied retroactively (with the USSC's latest data run here). The 2007 reduction benefited over 15,000 crack prisoners, though the amount of sentence reduction was only around 2 years of imprisonment. Thus, its seems making the FSA-inspired crack guidelines retroactive will actually effect a slightly smaller number of defendants, but could have an even greater impact on those defendants' sentencing terms.
February 2, 2011 in Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack
"Reducing Mass Incarceration: Lessons from the Deinstitutionalization of Mental Hospitals in the 1960s"
The title of this post is the title of this notable new piece available via SSRN from Professor Bernard Harcourt. Here is the abstract:
In 1963, President Kennedy outlined a federal program designed to reduce by half the number of persons in custody in mental hospitals. What followed was the biggest deinstitutionalization this country has ever seen. The historical record is complex and the contributing factors are several, but one simple fact remains: This country has deinstitutionalized before. As we think about reducing mass incarceration today, it may be useful to recall some lessons from the past.
After tracing the historical background, this essay explores three potential avenues to reduce mass incarceration: First, improving mental health treatment to inmates and exploring the increased use of medication, on a voluntary basis, as an alternative to incarceration; in a similar vein, increasing the use of GPS monitoring and other biometric monitoring, and moving toward the legalization of lesser controlled substances. Second, encouraging federal leadership to create funding incentives for diversionary programs that would give states a financial motive to move prisoners out of the penitentiary and into community-based programs. Third, encouraging impact litigation of prison overcrowding, as well as documentaries of prison life, as a way to influence the public perception of prisoners. With regard to each of these strategies, however, it is crucial to avoid the further racialization of the prison population and merely transferring prisoners to equally problematic institutions.
Iowa lawmakers get price-tag for serious sex offender monitoring
As detailed in this local article, headlined "Tracking Iowa sex offenders to cost millions," the price of expanded monitoring of sex offenders is starting to come into focus for legislators in at least one state. Here are the details:
Iowa lawmakers received new evidence Tuesday that the cost and consequences of tracking sex offenders in the next decade will be at least $30 million more than is now spent, unless officials find better ways to curb costs while guarding public safety.
A report from Iowa’s Division of Juvenile and Justice Planning shows that special, post-prison sentences for sex offenders will increase parole caseloads in Iowa by more than 50 percent by 2020. An estimated 2,300 additional sex offenders will have to be monitored for 10 years or life, according to an Iowa law passed in 2005. That rising number of offenders will increase the state’s minimum monitoring costs each year by $3.05 million, through 2020.
The new research was conducted for Iowa’s Sex Offender Research Council, an advisory group that is recommending the state begin examining best practices for supervising sex offenders. The goal would be to curb, where possible, monitoring if someone is unlikely to commit new crimes.
But leaders of public safety and judiciary committees in the Legislature said Tuesday that no major changes to existing sex offenders laws are being discussed this year. Tweaking special sentences is — in the short-term, at least — unlikely for political reasons, they said. “Really, I don’t think that would ever happen,” said Rep. Clel Baudler, R-Greenfield, chairman of the House Public Safety Committee.
Iowa was one of more than 20 states that created special sentences in the past decade to track sex offenders after their release from prison using corrections officers and technology such as GPS monitors. The move came in response to public outrage over the highly publicized murder of Jetseta Gage, 10, of Cedar Rapids in 2005 by a sex offender.
A 2009 investigation by The Des Moines Register found the flood of new sex offenders under supervision would cost taxpayers a minimum of $168 million over 20 years, or about $8.4 million a year. The study released Tuesday tallied only the minimum monitoring that would be required under the 2005 law and excluded other costs the Register considered.
Budget numbers show the full cost of treating, supervising and monitoring sex offenders has mushroomed substantially — from $3.3 million in 2005 to $11.5 million last year, according to Iowa’s Legislative Services Agency....
Anyone in Iowa convicted of a felony sex crime will receive lifetime probation. But these harsher post-prison sentences for the vast majority of Iowa’s sex offenders will mean other convicts — drunken drivers, stalkers, even people convicted of murder — are likely to receive less supervision over time, corrections officials have said.
Is it gender bias (or gender equity?) making Oklahoma #1 in female prisoners?
The question in the title of this post is prompted by this recent story from Tulsa World, which is headlined "Oklahoma leads nation in female incarceration." Here are excerpts:
It’s ironic that the state history of Oklahoma’s female prisoners begins with a reproach to the Kansas penal system. Although corrections officials say that rates of crimes by women and convictions in both states are comparable, today Oklahoma women end up in prison approximately three times as often as women in Kansas.
And while Kansas lawmakers are earning accolades for prison reforms that have reduced prison populations by creating alternatives for some offenders, in Oklahoma, the number of incarcerated women is at a historic high.
Mike Connelly, head of the evaluation and analysis unit at the Oklahoma Department of Corrections, calls it “the hockey-stick look.” That’s the shape of a graph charting the number of women in the state’s prison over the decades, with a long, stable line that suddenly takes a swooping upward turn in the early 1980s.
How sharp? From 1910 to 1980, women made up an average of 3.5 percent of the state’s prison population. By 2010, that percentage was nearly 11 percent, and the population had climbed to 2,760.
The “hockey-stick” pattern is not unique to Oklahoma’s female prison population, or to the state. Between 1987 and 2007, the number of prisoners in the U.S. nearly tripled; in 2008, there were more than 2.3 million adults in prison, more by sheer number, as well as per capita rate, than any other country in the world. The same factors that criminologists point to as having contributed to the growth in prison populations are present in Oklahoma: decades of “tough on crime,” politics, the deinstitutionalization of the mentally ill, the war on drugs and a federally financed prison construction boom.
What the graphs don’t explain, however, is why those factors have operated so severely on women. The nation’s female prison population grew by 832 percent between 1997 and 2007, while the male population grew only half as much. Nor do they explain why Oklahoma women, in particular, are so much more likely to go to prison. In 2004, the state imprisoned more than 10 times as many women per capita as Massachusetts or Rhode Island.
Extensive coverage of "Women in Prison" in Oklahoma can be found at this multi-media webpage.
February 1, 2011
The title of this post, in addition to sounding like the title of a screenplay for former California Governor Arnold Schwarzenegger's return to action blockbuster movies, is the title of this great-looking new piece from Professor Meghan Ryan that is now available via SSRN. Here is the abstract:
An essential element of the theory of retribution has been missing from courts’ and legal scholars’ analyses. While they have outlined a number of varieties of the theory and fleshed out their nuances, courts and scholars have largely neglected to examine which harms flowing from a criminal offender’s conduct should be considered in determining that offender’s desert. The more remote harms caused by offenders’ conduct, such as the effect of their offenses on the families and friends of their victims or the effects of criminal conduct on communities in general, are pervasive in communities across the nation.
This Article takes a first look at this neglected issue of the role that more remote harms should play in sentencing and asserts that accounting for these more remote harms would better reflect the basic tenets of retributivism. The Article acknowledges some of the challenges of embracing the totality of the theory of retribution and concludes that a legal limitation akin to the theory of proximate causation is necessary to reign in criminal liability under the theory.
Study suggests we should focus on red-light cameras more than the death penalty
Though division on death penalty policy and practice is often deep and heated, advocates and opponent of capital punishment typically share a serious and genuine commitment to the unique value of human life (of murder victims and/or of those who murder). The title of this post, inspired by this new USA Today article, is meant to encourage all those with a serious and genuine commitment to the unique value of human life to start focusing less attention on the death penalty and more on red-light cameras. Here is why:
The national debate over red-light cameras is heating up again as a new analysis from a traffic safety group argues that the controversial devices saved 159 lives in 14 cities during a five-year period.
The Insurance Institute for Highway Safety (IIHS) says red-light cameras reduced the rate of fatal red-light running by 24% from 2004 to 2008. Had the cameras been installed in all U.S. cities with populations above 200,000, 815 deaths would have been prevented, says the Insurance Institute, a group funded by auto insurers that aims to reduce deaths, injuries and property damage caused by crashes on the nation's roads. "The cities that have the courage to use red-light cameras despite the political backlash are saving lives," IIHS President Adrian Lund says.
The research was immediately challenged by camera opponents. Gary Biller, executive director of the National Motorists Association, a drivers' rights group, says cameras increase crashes in some areas and that other strategies are more effective in making intersections safer. "Lengthening the duration of the yellow cycle can reduce red-light running by 50% or more," Biller says, citing a 2005 study by the Texas Transportation Institute, a research arm of Texas A&M University.
"Doing nothing is better than putting up cameras," says Greg Mauz, a researcher for the Best Highway Safety Practices Institute, which studies traffic-safety laws. "There are about 700 additional deaths since cameras have proliferated, from 2001 on. The whole idea that cameras can prevent fatalities and crashes is total nonsense."
Mauz noted that cameras have never been approved by voters in 16 tries. Camera opponents such as Mauz argue that their only purpose is to generate revenue.
I cannot readily weigh in on this empirical debate over whether red-light cameras save innocent lives, but my instinct has long been that effective traffic rules and regulations has the potential to save many more innocent lives at a much lower cost than the modern administration of capital punishment. For this reason and many others, I wish many of lawyers, researchers and public policy groups that invest so much time and energy to debates over the death penalty would invest some of these resources to figuring out how best to maximize the innocent lives we could save on our nation's roadways.
State Commission reports that Illinois minorities get stiffer sentences for drug offenses
As detailed in this AP report, "minority populations in Illinois face stiffer and more frequent punishment for low-level drug offenses than whites, a government commission reported Monday." Here are the specifics:
The Illinois Disproportionate Justice Impact Study Commission said 19 percent of blacks arrested for Class 4 drug felonies end up in prison, compared to 4 percent of white offenders. The study found a disproportionate number of minority arrests for drug-related crimes in 62 of 102 Illinois counties.
The commission said providing alternatives to prison could cut costs and help get people off drugs. The alternatives include substance abuse treatment and educating offenders on the consequences of prison time, such as hurting their chances of getting a job.
Pam Rodriguez, president of the Treatment Alternative for Safe Communities, said she believes minorities often accept plea agreements that involve prison time instead of alternative sentencing. That might be because they don't know about options other than prison, or poor communities may not have the money to offer alternatives. Difficulties hiring lawyers also may contribute to the disparity, she said.
Some members of the commission filed a dissenting opinion questioning the report's conclusions. Cook County State's Attorney Anita Alvarez said the report neglected to investigate why some people commit crimes repeatedly and others don't. She said repeat offenders are more likely to end up in prison and that a larger percentage of minorities arrested are repeat offenders compared to whites.
State Rep. Dennis Reboletti, R-Elmhurst, joined in the dissent. He said variables such as gang affiliation were not taken into account, making it difficult to conclude that trends were based solely on race. Reboletti said he would like to see more money devoted to alternatives for low-level drug offenders, most of whom are addicts.
January 31, 2011
Spending the day at John Jay...
in the Big Apple to participate in the 6th Annual H.F. Guggenheim Symposium sponsored by The Center on Media, Crime and Justice at the John Jay College of Criminal Justice. I suspect I will be off-line most of the day, but I hope to get a chance to blog about the event upon my return home tonight.
UPDATE: A liveblog summary of the great activities as this event yesterday can be found on this page at The Crime Report.
Another capital classic: Washington prisoner serving LWOP suspected in guard murder
A sad story involving the murder of a prison guard from the state of Washington provides fodder for advocates of the death penalty now that the suspect has been revealed to be a prisoner already serving a life without parole sentence. This local article reports on the details:
The inmate suspected of killing a corrections officer in Western Washington is a sex offender serving life in prison for the abduction and rape of a Spokane-area real estate agent in 1995.
Byron Scherf, 52, who has a long history of violent sexual assault, is in an isolation facility after Correctional Officer Jayme Biendl, 34, was found dead Saturday night by fellow officers in the chapel lobby of the Monroe Correctional Complex, according to the Department of Corrections. Biendl reportedly had complained to supervisors about working alone in the chapel....
Scherf was reported missing during a routine count at 9:14 p.m. Saturday. He was found three minutes later in the chapel lobby and authorities say he told officers he had planned to escape. An hour later at shift change, staff members saw that Biendl hadn’t turned in her keys and radio, so they went to the chapel. Staff found her unresponsive, performed CPR and called 911.
Emergency responders were called and Biendl was declared dead at 10:49 p.m. She had been strangled with a microphone cord. The prison was in lockdown on Sunday as law enforcement officers investigated the killing. Department of Corrections spokesman Chad Lewis confirmed Scherf was the suspect.
Scherf was sentenced in 1997 by Spokane County Superior Court Judge Neal Rielly to a life sentence without chance of parole after a three-day, nonjury trial in which he was convicted of the kidnapping and rape two years earlier of a 37-year-old woman near Spangle....
Labeled a “persistent offender,” Scherf became the fifth person in Spokane County to be locked away under the three-strikes law. Scherf appealed the conviction, which was upheld by the state Court of Appeals....
In 1978, Scherf was convicted of second-degree assault in Pierce County and paroled after serving two years of a 10-year sentence. In 1981, he was convicted of raping a Pierce County woman before dousing her with gasoline and setting her on fire. The woman escaped by wriggling, bound, through a second-story window. After being married while in prison, Scherf was paroled in 1993....
“I don’t forgive you,” the victim said at Scherf’s sentencing hearing. “I feel like I’ve gone through hell, but I also feel like a hero” knowing that “he won’t hurt or maybe kill anyone else.”
Biendl’s death is the first killing of a corrections officer at Monroe and the first of a corrections officer in a state prison since 1979. “We have a lot of rattled staff members, a lot of tears,” Lewis told The Spokesman-Review. “It hit them hard.”
It is sad cases like this one that make it really, really hard for me to favor a categorical ban on the death penalty. Without the death penalty, there is no punishment that can be imposed on LWOP offenders for extreme prison crimes (unless one endorses torture as a punishment). Consequently, I would be especially interested in hearing in the comments from readers who oppose the death penalty what kind of punishment can and should be imposed on an LWOP prisoner who kills.
January 30, 2011
Is it constitutional to criminalize having a Facebook page?
The question in the title of this post is prompted by this local story from North Carolina, which is headlined "Lawyers take on Net predator law." Here are excerpts:
Registered sex offenders aren't allowed at schools, churches, shopping malls or other places where children may gather in the real world. But what about Facebook and other spots in the virtual world? Two local lawyers say it's unconstitutional to bar registered sex offenders from such social networking sites, and they're seeking to overturn a state law passed by the legislature three years ago.
Across the state last year, 75 offenders were charged under the law, which targets social networks such as MySpace and Facebook that allow minors as members. Eight men were charged by the Durham police and sheriff's departments last summer after an investigation determined that the men were maintaining accounts on the sites.
Two of those men -- Christian Martin Johnson, 34, and Lester Gerard Packingham, 29 -- are now challenging the Information Age statute. "The regulation does not just keep a registered sex offender from engaging in obscene speech with a minor," wrote Johnson's lawyer, Glenn Gerding of Chapel Hill, in a motion filed late last month. "It prohibits any and all speech, however innocent, even if it's a religious conversation between the offender and his priest, or a discussion of family matters between the offender and his mother."...
But Lt. Gov. Walter Dalton, who sponsored the law as a state senator, says there are other ways registered sex offenders can communicate. "We do have the mail," he said. "We do have telephone."
Dalton said the Internet restriction is no different from a sex offender being prohibited from running a food vending cart on a school campus. "When you are deemed to be a sexual predator, sometimes you do not have all the full rights of every citizen out there," Dalton said. "It's got a good public purpose. We don't need sex offenders engaging with minors."
But online communication is not the same as physical proximity, said Rebecca Jeschke, a spokeswoman for the Electronic Frontier Foundation, a San Francisco-based organization committed to Internet freedom. "Speech is very well-protected under the Constitution," she said. "It's definitely a problem to say certain classes of people can't talk on the Internet."...
Johnson's underlying sex offenses were two counts of taking indecent liberties with a child in Franklin County. He pleaded guilty to those after initially being charged with more serious crimes. After serving his sentence, Johnson worked as a computer software developer, but Gerding said the law has kept his client from integrating his company's product with Facebook and MySpace.
"Mr. Johnson was unable to perform those work-related assignments," the attorney wrote. "[He] was ultimately fired from his job in part because of the restrictions and in part because of the charge in this case."
Gerding said the law is so broad that it prevents registered sex offenders such as Johnson from accessing websites such as Google or amazon.com, because these sites allow a user to create a profile and to share information and photos with other members. "That could include sharing a recipe on BettyCrocker.com, exchanging information about heart disease on MedHelp.com, or speculating about the University of North Carolina Tar Heels sports teams on www.Scout.com," Gerding said....
Dalton said that if evidence shows an offender had no bad intent in accessing a site, a judge could consider that in meting out punishment. Still, Dalton said, that doesn't mean the law is unconstitutional.
"'Death is Different’ No Longer: Graham v. Florida and the Future of Eighth Amendment Challenges to Noncapital Sentences"
The title of this post is the title of this new paper now available via SSRN authored by Alison Siegler and Barry Sullivan. Here is the abstract:
In Graham v Florida, a Florida state prisoner asked the Supreme Court to hold that the Cruel and Unusual Punishments Clause of the Eighth Amendment categorically precludes the imposition of life-without-parole sentences for any juvenile offender who has committed a nonhomicide offense. There was no Supreme Court precedent to support such a holding. Indeed, the relevant Supreme Court jurisprudence seemed clearly to preclude Graham’s argument. Remarkably, however, the Court accepted Graham’s invitation and left behind more than thirty years of consistent Supreme Court jurisprudence, seemingly without a second thought or backward glance. Indeed, the Court did not even acknowledge that the law had changed, still less that it had changed substantially and dramatically. The result reached in Graham was consistent with sound constitutional policy and could have been supported with many good reasons, but the Court failed to provide a candid explanation for its decision. Death was different no longer, but the Court did nothing to explain why that was the case.
The first Part of this article will discuss the evolution of the Court’s two lines of Eighth Amendment jurisprudence leading up to Graham, those relating to noncapital and capital cases, respectively, and will discuss the two distinct frameworks the Court has applied to the two categories: a balancing test for noncapital cases and a categorical approach for capital cases. It will also distill three factors that underlie both tests. The second Part will discuss the Court’s decision to apply the categorical approach to Graham, even though it was a noncapital case. The second Part will then analyze the Court’s holding and the principal alternative opinions (authored by Chief Justice Roberts and Justice Thomas) to determine why the Court was willing to break so fundamentally with its prior jurisprudence. The third Part will consider the ramifications of Graham and will make some predictions about where the doctrinal innovation of Graham may lead. In particular, the third Part will consider what Graham bodes for three subsets of offenders: mentally retarded defendants, juvenile offenders who commit homicides, and adult defendants who commit nonhomicides.