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December 17, 2011

Has there been a big new crime wave in California in recent months?

The question in the title of this post is prompted by this local article headlined "California prison population drops by 8,000 since realignment." Here is how the article starts:

The number of inmates in California prisons has dropped by 8,000 since “realignment” took effect Oct. 1. Court papers state officials filed Thursday indicate the change. Officials reported the new numbers Thursday under a federal court order to reduce crowding in the prisons. In its monthly status report to the court, officials said the state prison population dropped by 8,218 between Oct. 5 and Dec. 7.

California prison officials say the transfer of low-level felons to county officials that began in October will allow the state to meet a court-ordered reduction a month after a Dec. 27 deadline.

The state’s prison population has declined from a record high of 173,000 in 2006 to the current population of 135,000. But many prisons remain packed with almost twice the number of inmates they were designed to hold.

The court order resulting in these prison reductions is the one upheld by the Supreme Court in Plata earlier this year despite strenuous objections and dire warnings of Justices Alito and Scalia and others about a likely spike in crime as a result. I am thus wondering, given that it appears that California is going to be soon complying with this court order, if there is developing evidence of a new crime wave.

I sincerely hope that there is an on-going effort to track the public safety impact of the prison population reductions in California, especially because it seems that different localities are responding to the influx of former prisoners in different ways. The process of prison realignment is thus creating a kind of post-prison community reentry natural experiment, and I would expect spikes in crime to vary in different localities based on both the nature of the offenders returning to the community and also how the communities are responding to the return of these offenders.

Only a few months into the realignment plan, it is surely to early to have clear or conclusive evidence on the public safety consequences of Plata and its aftermath. Still I am very eager to hear any early reports, especially from anyone actively working on these issues, about what we might know on this front so far.

December 17, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Ohio condemned to have new place to await their execution

I found interesting this morning this article in my local Columbus Dispatch about the impact of Ohio's decision to relocate its death row.  The article is headlined "Death Row prisoners will gain a few perks when they’re moved to Chillicothe," and here is how it gets started:

Prisoners on the “ new” Death Row at the Chillicothe Correctional Institution are taking a step back in time, to 1926. The move from the Ohio State Penitentiary at Youngstown, to be completed by the end of the month, means prisoners will have smaller cells in a wing of an old federal prison that once housed notorious killer Charles Manson, among others.

But there are advantages: a gymnasium with a basketball court, a small outdoor recreation area and an indoor area where “contact” visits with family members will be permitted. All are Death Row firsts.

Some members of the news media got a rare look inside Death Row yesterday before inmates are moved into the “prison within a prison.” Once the condemned men arrive, tight security restrictions will make it off-limits to the media except for interviews in designated areas, and for the 2,600 prisoners in the general population.

There is a sense of foreboding about the 85-year-old Chillicothe prison, with its stone-pillared administration building, compared with the stripped-down modernity of the 13-year-old Youngstown facility, known as a “super-max” facility because it was designed to house the “worst of the worst” offenders.

December 17, 2011 in Death Penalty Reforms, Prisons and prisoners | Permalink | Comments (1) | TrackBack

December 16, 2011

All the world's a sentencing, and all the kids and judges merely players

ImagesCAZX1079With only slight apologies to the Bard of Avon, the title of this post is my peotic riff in response to this local sentencing story from Wisconsin. The piece is headlined "County OKs Shakespeare program for young offenders," and begins this way:

Apparently, the play's the thing. The Milwaukee County Board on Thursday approved a $65,000 Shakespeare program that judges could use as an alternative to jail for young offenders.

Supervisors backed the measure, 11-8, after a lengthy debate in which supporters called on others to have the courage to support something that conservative talk radio and Sheriff David A. Clarke Jr. have vilified.

The Shakespeare in the Courts program, however, faces an uncertain fate with yet another foe surfacing. County Executive Chris Abele said he'll veto the measure. It would take 13 votes from the 19-member County Board to override. "Spending money without conclusive evidence or a thorough process seeking out the best diversion programs is not something I can support," particularly given financial pressures on the courts, Abele said in a written response.

The program would train court-referred teenagers to mount an abbreviated Shakespeare play after a six week session, under supervision of University of Wisconsin-Milwaukee theater faculty. Modeled after a Shakespeare program in Massachusetts, the local version would help boost self-esteem for participants and teach them to work collaboratively, according to advocates for the program. Diverting just one youth from a year of state incarceration would more than make up for the cost of the program, Supervisor Gerry Broderick said.

Supervisor Patricia Jursik quoted Shakespeare in ribbing Clarke, suggesting his criticism was linked to 2012 budget cuts dealt to the sheriff. Jursik described Clarke as "scrambling on the budget battlefield, shamefully dismounted, yelling: 'My horse, my horse, my kingdom for a horse.' " Jursik noted Clarke uses county money for horses in parades.

Clarke called the Shakespeare program "a stupid and insane idea," especially at a time his budget is getting cut. Clarke said no tax money is used for his department's horse rentals. He pays a flat fee for horses that are used in park patrols and parades from asset forfeiture funds, Clarke said.

Opponents said evidence the Shakespeare in the Courts program worked to divert wayward youth from future crimes was lacking and questioned the spending at a time when the overall county courts budget faces a deficit. Critics also said juveniles who have committed crimes such as assault and battery deserve tougher sentences than the Shakespeare program.

Though I do not expect all the comments to this post to be set in iambic pentameter, I do think some Shakespearean riff would be nice to read over the weekend. (some ideas for classic Bard quotes to borrow can be found at this link.) 

December 16, 2011 in Criminal Sentences Alternatives, Offender Characteristics, Who Sentences? | Permalink | Comments (2) | TrackBack

Barry Bonds sentenced to two years of probation and is grounded for a month

Somewhat fittingly, Barry Bonds today got a kind of sentence that is more like what teenagers face when they misbehave than what most federal felons receive.  This local story, which is headlined "Barry Bonds sentenced to two years probation, 30 days home confinement," provides the specifics:

Home run king Barry Bonds was sentenced Friday to two years probation and 30 days home confinement for obstructing justice during his December 2003 testimony before a federal grand jury probing the Balco steroids scandal.  But U.S. District Judge Susan Illston immediately stayed her sentence while Bonds appeals his conviction. Prosecutors objected to the stay.

During a hearing that lasted less than an hour in San Francisco, Illston imposed the sentence on the 47-year-old Bonds, who was convicted in April by a jury that was torn over allegations he repeatedly lied about his own steroid use under oath, deadlocking on three other perjury counts against him. The sentenced also includes 250 hours of community service.

Bonds did not take the opportunity to address the judge before the sentencing. Afterward, he hugged supporters outside the courtroom and then left amid a crush of reporters without saying a word publicly.  The jury concluded Bonds obstructed justice by providing a rambling, evasive answer to a question about whether he'd ever been supplied with steroids or injected by his former personal trainer, Greg Anderson.

Federal prosecutors sought to imprison Bonds for at least 15 months, which would be one of the harshest punishments meted out against a defendant convicted in the Balco case. Defense lawyers pushed for probation, arguing that Bonds had a clean criminal record and a quiet pattern of doing charitable work in the community during his long career in Major League Baseball.

Federal probation officials recommended that Bonds be put on probation, although with some period of "location monitoring," which in other Balco cases resulted in home detention. Tammy Thomas, a former world class cyclist convicted of perjury, received probation and a home confinement sentence, as did former track coach Trevor Graham, convicted of lying to federal agents.

But Bonds was always the most high-profile name linked to Balco, a now-defunct Peninsula laboratory that sprouted the largest doping scandal in sports history.  The former San Francisco Giant was hauled in front of the grand jury probing the lab in 2003 as he chased baseball's all-time home run records, asked to explain records that appeared to link him to steroid use, Balco, Anderson and Balco founder Victor Conte. Bonds repeatedly denied knowingly using performance enhancing drugs, prompting years of further investigation that led to his indictment on perjury and obstruction charges nearly five years ago.

To critics, including Conte, the government's case was a waste of taxpayer money to go after a superstar whose legacy was already tarnished by strong evidence he used performance enhancing drugs in the latter stages of a surefire Hall of Fame career.  But to the government, it was a case designed to show that no one can undermine the grand jury process by lying under oath, regardless of their fame.

I am very glad that no federal tax dollars are going to be wasted on keeping Bonds imprisoned for an offense that was, in my opinion, perhaps the most mitigated federal felony that I can even imagine.  That said, I think this case provides yet another example of the failure of American justice system to hit white-collar offenders in the pocketbook at sentencing. 

Suppose, instead of grounding Barry Bonds for a month through home confinement, what if his sentence were set to be an  amount equivalent to one-month of his salary in 2003 when he committed his offense of conviction.  In that year, he earned over $15 million, so his "month fine" would be in the neighborhood of a cool $1.25 million.  That probably would not even cover the costs of his prosecution, but it would send an interestingly distinct signal to other well-to-do white-collar offenders, perhaps.

December 16, 2011 in Celebrity sentencings, Criminal Sentences Alternatives, White-collar sentencing | Permalink | Comments (10) | TrackBack

"Three men get 1-year sentences for medical marijuana operations"

As helpful reader sent me this local article from Montana, which has the headline that serves as the title of this post.   I am quoting extensively from this piece, in part because there are so many notable elements to this story:

Three men who openly operated medical marijuana businesses in Helena and Great Falls were sentenced in federal court Thursday to a year in prison.

In an emotionally charged hearing, Senior U.S. District Court Judge Charles Lovell handed down the prison terms to Joshua Schultz, Jesse Leland and Jason Burns.  About 75 friends and family members who packed into the federal courthouse in Helena were hoping the judge would take the recommendation of probation made by the men’s attorneys, but also feared that the judge might impose a mandatory minimum sentence of five years or even the maximum of 40 years.

Yet judges are allowed discretion when it comes to sentencing, even with mandatory minimums.  Since the men had admitted their guilt, cooperated with the U.S. Attorney’s Office, had minimal if any criminal records and believed they were in compliance with state laws governing medical marijuana, court officials recommended a guideline sentencing range of 24 to 30 months.

But Lovell lowered the sentences even further, noting that this was a highly unusual case, pitting state against federal laws regarding marijuana.   “The sentencing range that established the guidelines has been, in the judgment of the court, excessive for utilization in this particular case under what I find to be very unusual circumstances,” Lovell said. “While it is true that the law was violated and while it is true that the computation set forward by the U.S. Probation Office complies with the guidelines in an ordinary case, this is not an ordinary case as to each of the three defendants.”...

Still, the 12-month sentences to a federal penitentiary shook the courtroom, with mothers, wives and friends breaking into tears, sighs of “no” ringing out and men dropping their heads into their hands....

In 2004, 62 percent of Montana voters passed an initiative removing criminal penalties under Montana state law related to the medicinal use, possessing and cultivation of marijuana for qualifying patients and registered caregivers.

Few people registered with the state as patients or caregivers until 2009, when the “Ogden Memo” was issued to federal prosecutors by then U.S. Deputy Attorney General David Ogden.  Generally, it said prosecution of marijuana cases in states with medical marijuana laws should be low on the priority list.

But many people who read the memo thought it said the federal government wouldn’t prosecute medical marijuana cases, and the number of caregivers and patients skyrocketed in Montana. Leland, 28, and Burns, 40, formed Queen City Caregivers LLC and registered the business with the Secretary of State’s office.

The men maintained records regarding the eligible patients for which they could manufacture marijuana under the state law and even met with local law enforcement officials, who counted 749 plants growing at their nursery on Westhaven Road in Helena.

The officials determined that Burns and Leland were in compliance with state laws and didn’t issue any citations.   Meanwhile, Schultz, 38, opened Natural Medicine of Great Falls, which operated like a broker, buying and selling marijuana among caregivers.

“As (Schultz’s) character letters attest, he is a good family man and a productive member of the community,” defense attorney Michael Donahoe wrote on behalf of his client in court documents. “Absent the government’s publication of the Ogden Memo, there is no evidence to support the conclusion that (Schultz) would have engaged in the business of selling marijuana. “… And under the Ogden Memo it was more than reasonable for (Schultz) to assume that he would not be targeted for federal prosecution, so long as he was making a good faith effort to remain in compliance with Montana’s medical marijuana laws.”

But in March, the federal government carried out dozens of raids in Montana, including at the three men’s businesses.  They were arrested and jailed on about 25 charges each including manufacturing and distributing marijuana and money laundering.

In court Thursday, Assistant U.S. Attorney Joseph Thaggard reiterated that the Ogden Memo only spoke about prioritization of crimes, and federal prosecutors in Montana felt a need to corral the state’s exploding medical marijuana industry.  He added that the memo also said people wouldn’t be prosecuted when there was “clear and unambiguous compliance” with state law, and the three men didn’t fall into that category....

“The memo didn’t say sort of comply or try to comply or attempt to comply … and the use and distribution of medical marijuana is still against federal law,” Thaggard said. “So it’s a little disingenuous for these defendants to come forward saying they didn’t believe they would be fair game for prosecution.”

The court received dozens of letters from supporters of all three men, who noted that they were upstanding fathers, uncles and friends, as well as caring individuals who were only trying to help people who were ill.  Thaggard noted that while that may be true, the men also made quite a bit of money — around $1.3 million by the government’s accounting.

Burns, who also owns a construction business in Helena, pleaded guilty in September to growing marijuana and money laundering.  Leland pleaded guilty to manufacturing marijuana and Schultz pleaded guilty to distribution of marijuana. In exchange for the guilty pleas, the other charges were dropped Thursday and the defendants agreed not to appeal the sentences.

Leland and Burns each forfeited $454,666 in a bank account that was seized and Schultz paid the government $110,000 prior to the sentencing. He also forfeited a 2001 Mercedes Benz.  All three men were set free Thursday, but will have to report to federal prison as soon as they’re ordered to begin their sentences. After the release, Burns will be on supervised probation for three years and Leland and Schultz will be supervised for four years.

Beyond lots of other reactions to this prosecution and sentencing, I am uniquely disappointed to read that "the defendants agreed not to appeal the sentences."  I can think of a number of important constitutional and statutory arguments that might well be made (and that I surely wish would be made) to the Ninth Circuit in an effort to overturn the prosecutions and especially the prison sentences given to these three (upstanding?) Montana businessmen.  

Because federal prosecutors are (justifiably) afraid of what might happen on appeal of a case like this (both in terms of PR and in terms of a legal ruling), I guess I am not surprised to hear that the feds sought a waiver of appeal in the plea deal.  And, I have little doubt that the prosecutors were able to used the threat of an potentially applicable mandatory minimum sentence of five years to secure such a plea term.  I sincerely hope that, if the language of the appeal waiver has any limits, these defendants will consider trying to appeal at least their federal prison term (and I will here already offer to help on any such appeal to the Ninth Circuit pro bono).

December 16, 2011 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (39) | TrackBack

California state judge finds more problems with state's lethal injection plans

As detailed in this local article, which is headlined "Judge plans on tossing California's death penalty," a state judge appears poised to make it still harder for California to ever get back in the death penalty business.  Here is the start of the piece:

A Marin County judge will decide Friday whether to finalize his decision to toss out California's newly adopted lethal injection procedure after he ruled prison officials failed to properly adopt the state's new procedures for lethal injection execution. In a tentative ruling Thursday, Marin County Superior Court Judge Faye D'Opal found prison officials failed to properly consider a one-drug alternative to the three-drug lethal injection cocktail used to execute inmates.

Attorneys representing the California Department of Corrections and Rehabilitation will get a chance to change the judge's mind during a hearing Friday morning. CDCR spokeswoman Terry Thornton said Thursday the department was reviewing the lengthy ruling and declined to comment.

If the judge upholds his ruling, it would throw California's stalled capital punishment system into further doubt. Prison officials would either have to appeal or again revise their lethal injection procedures and submit them to public comment, a process that took more than a year last time.

It also could become the second court ruling barring executions in California. A federal judge imposed a de facto moratorium on executions in 2006 after finding the lethal injection process flawed in the state.   One of the state's responses to that finding was to adopt the new regulations, which D'Opal's tentative ruling said was severely deficient.

D'Opal said that prison officials failed to properly explain why they rejected a one-drug process using only a barbiturate, even though one of their experts recommended it as being superior to the three-drug cocktail CDCR adopted. The judge wrote that critics of the three-drug lethal injection submitted comments to the CDCR saying that one of those three drugs -- pancuronium bromide -- "is unnecessary, dangerous, and creates a risk of excruciating pain."

D'Opal said that the CDCR also failed to disclose the costs of executions, all of which are conducted at San Quentin Prison in Marin County.   The judge noted that former San Quentin Prison Warden Jeanne Woodford said each execution costs the state between $70,000 and $200,000 in overtime for staff, crowd control, training, security and other expenses with carrying out lethal injections.   D'Opal also took exception to three new procedures introduced without explanations in the new protocols.

December 16, 2011 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (12) | TrackBack

December 15, 2011

NFL player arrested by feds for big-time drug dealing

As the weather turns ever colder, perhaps it is fitting that federal crime and punishment stories are about to turn from a baseball player like Barry Bonds (to be sentenced tomorrow) to a football player like the Chicago Bears' receiver Sam Hurd. And unlike in the Bonds case, this time around (as reported via this Chicago Tribune piece), the federal crime at issue is a big ticket one:

Chicago Bears receiver Sam Hurd was arrested Wednesday night outside a Chicago restaurant after he accepted a kilogram of cocaine from a confidential informant and an undercover federal agent posing as a drug supplier, according to federal charges filed Thursday in Dallas.

Hurd was charged with one count of conspiring to possess half a kilogram of cocaine with the intent to distribute it.  Hurd appeared in federal court in Chicago in late afternoon and will remain in custody overnight while his attorney arranges bond....

At the Wednesday night meeting, authorities allege that Hurd negotiated to buy five to 10 kilograms of cocaine and 1,000 pounds of marijuana a week for distribution in the Chicago area.  He agreed to pay $25,000 for each kilogram of cocaine and $450 a pound for the marijuana, according to the charges.  Hurd said at the meeting that he plays for the Bears, gets out of practice at about 5:30 p.m., and would pay them on the next day, authorities said. Bears players are paid on Thursdays.

Hurd told the undercover agent and informant that he and someone else distributed about four kilograms of cocaine each week in the Chicago area but that their supplier wasn't able to meet their needs, according to the criminal complaint....

Hurd, who played at Northern Illinois, signed a three-year contract with the Bears this offseason after playing the previous five seasons with the Dallas Cowboys. The veteran receiver has been primarily a special teams contributor for the Bears. Bears receiver Roy Williams, who played with Hurd for three seasons with the Cowboys, said he was "shocked" by the news....

The complaint alleged that Hurd first came to the attention of federal authorities in July when the confidential informant tipped off agents that a man -- later learned to be a Hurd associate -- was attempting to coordinate the purchase of about four kilograms of cocaine in the Dallas area. The associate wanted to complete the deal that day so the buyer could transport the cocaine to a northern destination that same day, authorities charged....

Hurd's three-year contract with the Bears had a maximum value of $5.15 million ($4.15 million base total), and Hurd received a $1.35 million signing bonus. His base pay this season was $685,000. The Bears could pursue trying to recover some of the signing bonus.

Wowsa!  And, thanks to this link via ESPN, we can already read the criminal complaint stemming from the Northern District of Texas in US v. Hurd

If Hurd's really was involved in a big conspiracy to deal a huge amount of cocaine and marijuana — did he really negotiate "to buy five to 10 kilograms of cocaine and 1,000 pounds of marijuana a week"!?!? — he might soon be starting down a federal guidelines recommendation of an LWOP sentence and a mandatory minimum sentencing term of at least a decade.  This matter will thus be a very interesting case to watch in terms of the ultimate charges filed against Hurd and also any ensuing plea deal talk.

(P.S. to all big-time football fans: I was tempted to add a joke in this post about Tim Tebow or Michael Vick or Plaxico Buress, but the story is amazing enough on its own.  That said, good NFL jokes in the comments are always appreciate.)

UPDATE:  Professor Michael McCann, who is a sports law blogger and columnist, has this new piece at SI.com, which includes these notable snippets about how other NFL players may get involved in Hurd's federal criminal justice mess:

Early reports indicate that Hurd provided, or had in his possession, a list of clients. The list supposedly includes a sizable group of NFL players. Those players will likely be investigated by law enforcement and, upon threat of prosecution, encouraged to cooperate -- that is, implicate Hurd and others connected to the drug ring. Whether or not they cooperate, the players could be subpoenaed to testify against Hurd.

Alternatively, prosecutors could offer Hurd a plea deal. If he accepted a deal, Hurd would agree to plead guilty to a lesser crime or the crime he's facing, with prosecutors agreeing to recommend a relatively light sentence. In exchange, Hurd would be expected to tell law enforcement everything he knows and implicate everyone connected to his drug dealing, including any international contacts. In either scenario, the named players could be at risk of prosecution, subpoena or public naming.

December 15, 2011 in Celebrity sentencings, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics | Permalink | Comments (12) | TrackBack

Seeking guest posts for 2011 sentencing "Year in Review" posts

When time and energy permits, I have had a habbit around the holiday season to develop some "Year in Review" kinds of posts for this blog (often with always-fun Top 10 lists).  Examples can be found from 2004 here and from 2005 here and here and from 2006 here and from 2007 here and from 2009 here and from 2010 here (I am not sure what the heck happened in 2008).

Time and energy may allow another such post in the weeks ahead, but this year I thought it might be fun and informative to encourage interested folks to send me fodder for guest posts in the "Year in Review" spirit.  I neither expect (nor really even desire) folks sending me comprehensive lists on all sentencing fronts, but I would especially welcome targeted year-end review (or even next-year preview) posts on particular topics. 

With luck, lots of different folks can and will send me via e-mail some (cut-and-paste- friendly) copy that reviews, say, the federal sentencing year or the drug sentencing year or the celebrity sentencing year or the legislative developments of the year or whatever else you might be interested in sending my way. 

December 15, 2011 in On blogging, Recap posts | Permalink | Comments (0) | TrackBack

"Blagojevich seeks drug treatment in prison"

The title of this post is the headline of this notable new Chicago Tribune article, which gets started this way:

Convicted former Gov. Rod Blagojevich wants to enroll in a substance-abuse program at a federal prison outside of Denver, a move that could shave up to a year off of his prison sentence.

Blagojevich’s legal team, however, has downplayed the request, briefly mentioning the drug program by only its acronym in court Tuesday, resulting in hardly anyone noticing among a throng of reporters. And then, a day later, the attorneys declined to comment at all. But the move raises questions about whether Blagojevich suffers from a real substance-abuse problem or is simply angling to reduce his stiff 14-year sentence.

Two former associates of another convicted former Illinois governor, George Ryan, said Wednesday that they remember it didn’t take much to get into the Residential Drug Abuse Treatment Program — as little as regularly consuming five alcoholic drinks a week before they had been incarcerated.

“Any defense lawyer in town that’s worth their salt all know about this and they all try to get their clients in,” said Scott Fawell, Ryan’s former chief of staff who cut his sentence by about 8 months by completing the drug program at a federal prison in Yankton, S.D. “(A lot) of the people who go through the system now ask for it or attempt to get in. How many actually need it, I couldn’t tell you.”

U.S. District Judge James Zagel agreed this week to recommend Blagojevich for the counseling program at a low-security prison in Littleton, Colo., but the ultimate decision will be made by the U.S. Bureau of Prisons. According to the agency’s guidelines, inmates must have “a verifiable substance-use disorder.”

“The bottom line is that we look for evidence that the inmate has a documented substance-abuse history before their arrest,” said Chris Burke, a spokesman for the Bureau of Prisons. “If that is five drinks a week and there is something to verify that beyond that inmate’s statement, that might qualify.”

At the Littleton facility, inmates are given an initial screening by medical and psychological staff on their arrival at the institution but are not screened for admittance into the substance-abuse program until three to four years before their release date. Inmates must have a proven history of substance abuse within the 12-month period before their arrest.

Big moral of this story: if you start getting investigated by the feds, it might well be in your best interest to start driving heavily.

Big concern about this story: recidivism data suggests the RDAP program in the federal system does lots of good, and I sincerely hope that Blago does not become a bad apple that ruins the RDAP bunch.

December 15, 2011 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Stacked 924(c) counts leads to another very long federal mandatory minimum sentence from Utah

This new piece from The Salt Lake Tribune, headlined "Reluctant Utah judge orders man to 57 years in prison for gang robberies," reports on another case involving stack gun mandatory minimums producing an extremely long federal mandatory minimum sentence. Here are the basics:

Kepa Maumau stared at the courtroom ceiling, fighting to keep his compsure as his father sobbed while giving the 24-year-old man a bear hug on Thursday. It would be the last chance for father and son to embrace after U.S. District Court Judge Tena Campbell ordered Maumau, a once promising running back with plans to play football at Weber State University, to spend 57 years in prison for committing three armed robberies on behalf of the Tongan Crip Gang.

A reluctant Campbell handed down the sentence, which is dictated by federal mandatory minimum guidelines associated with gun crimes.

Maumau’s sentencing in federal court was fourth completed for six members of TCG convicted by a jury in October for a variety of crimes dating back to 2002. The jury convicted Maumau of racketeering conspiracy, robbery, assault with a dangerous weapon and multiple counts of using or carrying a firearm during a violent crime.

Although Maumau’s federal charges marked the first time he’d ever been charged with a felony as an adult, he is subject to a mandatory 57 years for repeatedly using a gun during the robberies.Maumau’s defense attorney, Rebecca Skordas, said she plans to appeal the sentence and used the hearing as a chance to speak out against mandatory minimum sentences.

"This is absurd. It’s just not right," Skordas said. "We as a society have failed when we send a young man to prison for 57 years."

Campbell said the law gives her no alternatives in Maumau’s case. "I can’t change it," she said matter-of-factly.

This case may remind hard-core sentencing fans of another notable federal sentencing case from the same district, which the article goes on to discuss:

Kepa Maumau’s case isn’t the first where a mandatory minimums have come under fire. Earlier this year, the U.S. Supreme Court declined to hear the case of Utah music producer Weldon Angelos, who wanted the high court to throw out the 55-year prison sentence he received for drug and weapons crimes despite having no prior criminal record.  The decision ended appeal options for Angelos, 32 -- the founder of hip-hop label Extravagant Records -- who had unsuccessfully argued that his trial attorney mishandled plea negotiations during his court proceedings and that the sentence handed down was unfair.

Angelos sold marijuana to a police informant three times in May and June 2002, each time charging $350 for 8 ounces. He was indicted in federal court on one gun possession count, three counts of marijuana distribution and two lesser charges....

U.S. District Judge Paul Cassell sentenced Angelos to a minimum mandatory 55-year sentence: five years on the first weapons conviction and 25 years each for the next two counts, as required by law. Cassell, frustrated that his hands were tied by the mandatory guidelines, asked former President George Bush to commute the sentence, calling it "unjust, cruel and irrational."

Because I represented Weldon Angelos throughout his unsuccessful 2255 proceedings, I will not comment further on this matter except to note that I am not certain that Angelos is wholly without any more appeal options.

December 15, 2011 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (7) | TrackBack

Any predictions (or suggestions) for tomorrow's sentencing of Barry Bonds?

Another high-profile federal white-collar sentencing is scheduled for tomorrow, this time in the case of US v. Bonds.  What one should expect could vary depending on which of these two new media stories are reviewed:

Not surprisingly, each article linked here includes a quote from an expert explaining why Bonds very well might, and why Bonds likely will not, get a federal prison term at his sentencing before US District Judge Susan Illston.

Here is one (legally irrelevant?) wrinkle that perhaps adds some extra intrigue into the proceedings: I think the sentence Bonds received might impact not only whether he appeals his conviction, but also his chances for success on appeal.  Ultimately, I expect Bonds will appeal his conviction even if he were to get a very lenient sentences of, say, one year of probation; and if he gets any serious prison time, it would seem to be a near given that he would appeal (and be able to be free pending his appeal, too).  But if he only gets a year of probabtion and he has completed that sentence by the time of his appeal is fully briefed, the real stakes of the outcome of that appeal are much less than if he gets, say, the 15 months of prison sought by prosecutors and that term is still hanging over Bonds' head when his appeal is being considered.  (Of course, these kinds of real-world sentencing consequences should not be germane to the trial issues that Bonds would likely be raising on appeal; and yet, I often suspect that these kinds of real-world sentencing consequences are sometimes hard for appellate courts to completely disregard.)

A few related posts:

December 15, 2011 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Latest official BJS numbers show historic modern decrease in prison population

Proving once again the aphorism that what goes up (and up and up and up) must eventually come down, this new press release reports on a notable new development concerning modern prison populations:

The Bureau of Justice Statistics (BJS) reported today that the number of offenders under adult correctional supervision in the U.S. declined 1.3 percent in 2010, the second consecutive year of decline since BJS began reporting on this population in 1980. At yearend 2010, about 7.1 million people, or 1 in 33 adults, were under the supervision of adult correctional authorities in the U.S.

In addition, the total U.S. prison population fell to 1.6 million at yearend 2010, a decline of 0.6 percent during the year, the first decline in the total prison population in nearly four decades. This decline was due to a decrease of 10,881 in the number of state prisoners, which fell to just under 1.4 million persons and was the largest yearly decrease since 1977. The federal prison population grew by 0.8 percent (1,653 prisoners) to reach 209,771, the smallest percentage increase since 1980....

During 2010, prison releases (708,677) exceeded prison admissions (703,798). The decrease in commitments into state prison, especially the 3.3 percent decrease in the number committed from the courts on a new sentence, was responsible for the decline in the state prison population. The time that offenders entering state prison could expect to serve on a commitment, about 2 years, remained relatively stable between 2009 and 2010, which indicates that the decline in the state prison population during the year was the result of a decrease in admissions.

Half of state departments of corrections reported decreases in their prison population during 2010. California (down 6,213) and Georgia (down 4,207) reported the largest decreases, followed by New York (down 2,031) and Michigan (down 1,365). Illinois (up 3,257) reported the largest increase, followed by Texas (up 2,400) and Arkansas (up 996).

In 2010, the U.S. imprisonment rate dropped to 497 inmates per 100,000 residents, continuing a decline since 2007, when the imprisonment rates peaked at 506 inmates per 100,000 residents. The national imprisonment rate for males (938 per 100,000 male U.S. residents) was about 14 times the imprisonment rate for females (67 per 100,000 female U.S. residents).

Among offender age groups, about 3.1 percent of black males in the nation were in state or federal prison, compared to just under 0.5 percent of white males and 1.3 percent of Hispanic males. Also, an estimated 7.3 percent of all black males ages 30 to 34 were incarcerated with a sentence of more than 1 year.

All of these interesting data and lots and lots more appear this pair of new documents:

I cannot overstate how excited I am to learn that, at the same time that US crime rates continue to hit record modern lows, we are also seeing a decrease in the number of persons incarcerated throughout the country.  And I hope and trust that all readers, no matter what their perspective on sentencing law and policy, will also see this news as cause for celebration.

December 15, 2011 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

DPIC year-end report indicates record-low number of US death sentences in 2011

The Death Penalty Information Center has just released its always notable year-end report for 2011, which can be accessed here.   The report carries this lengthy sub-title: "Illinois Abolition, Oregon Moratorium, and Troy Davis Execution Highlight Growing Concerns About Death Penalty; Executions Decline, Death Sentences Fall Well Below 100."   As the title to this post reveals, I think the most notable and important part of the 2011 story is the significant decline in death sentences as discussed in these passages from the report:

Death sentences continued their sharp decline since the 1990s. The number of new death sentences imposed in 2011 stands at 78, a decline of about 75% since 1996, when 315 inmates were sentenced to death.  This is the lowest number of death sentences in any year since the death penalty was reinstated in 1976. Texas, which had 48 new death sentences in 1999, had only 8 this year.

California, the state with the largest death row, saw its death sentences drop by more than half this year -- 10 compared with 29 in 2010 (at least 2 other cases resulted in a jury verdict of death, but the judge has not imposed the sentence).  Many death penalty states, such as Maryland, South Carolina, Missouri and Indiana had no new death sentences in 2011.  The South and West combined for 87% of the death sentences, while the Midwest and Northeast had 12%.

The annual number of death sentences began declining after 1998.   In the 1990s there were close to 300 death sentences annually.  Since then, the number has dropped steadily, as the risks of executing the innocent grew more apparent and life without parole sentences became more common.  In every region of the country, death sentences have declined, which eventually will affect the number of executions.

Couple points of follow-up to detail some of my thoughts about this part of the story:

1.  Though innocence concerns and an LWOP alternative definitely help explain why the national death sentences have declined "about 75% since 1996," these factors do not alone strike me as a sufficient explanation for the big dip in death sentences from 2010 (with 112 death sentences nationwide) to 2011 (with only 78 death sentences).  As reflected in this effective Wall Street Journal article about this DPIC report, I suspect the high costs of prosecuting capital cases is prompting fewer prosecutors to seek death sentences and/or more prosecutors being willing to accept plea deals that take death off the table after a capital indictment.

2.  I seriously doubt that a decline of the national number of death sentences, unless and until the number gets into teens, "will affect the number of executions" anytime soon.  There are still well over 3000 murderers on death row right now, which means the US could have more than five decades of executions at the now-common pace of around 50 executions (and 10 death sentence reversals) each year even if there were zero new death sentences over the next half-century.  In addition, there are reasons to believe that many of the newer death sentences in recent years are "better" (i.e., less likely to be reversed) because prosecutors, jurors and judges are not seeking or imposing  death sentences in more questionable cases.  

3.  Speaking of execution rates and death sentences, the latest DPIC data highlight that the yearly execution numbers lately are principally a function of how quickly and how often Texas, Ohio, Alabama, Georgia, Florida and a few other serious death penalty states get murderers from death row to the execution chamber.  These five states alone already have nearly 1200 murderers condemned to die, which means these five states alone could sustain a pace of, say, thirty executions per year until the year 2050 without the imposition of any new executions over that time.  And if California with its more than 700 condemned murderers were ever to get seriously back into the execution business (which I very much doubt)....

December 15, 2011 in Death Penalty Reforms, Detailed sentencing data, Who Sentences? | Permalink | Comments (3) | TrackBack

Vice or virtue?: teen pot use up, while teen drinking and tobacco smoking falls

As my post title hints, I am interested in reader reactions to the latest survey data from the National Institute on Drug Abuse.   This CBS News piece, headlined "Marijuana use up, alcohol use down among U.S. teens: Report," provides the data basics:

The findings are based on a survey of 47,000 eighth-, 10th- and 12th-graders conducted by researchers at the University of Michigan on behalf of the NIDA. The researchers found one out of every 15 high school seniors smokes pot on a daily or near-daily basis. That's the highest rate since 1981.

The percentage of teens saying they see "great risk" in using marijuana has dropped in recent years. "One thing we've learned over the years is that when young people come to see a drug as dangerous, they're less likely to use it," said survey author Dr. Lloyd Johnston, a distinguished senior research scientist at the University of Michigan. "That helps to explain why marijuana right now is rising."

It's the fourth straight year marijuana use grew among teens compared with last decade when pot use declined among teens. The survey found more than 36 percent of 12th-graders used marijuana in the past year, compared to nearly 32 percent in the 2007 survey. Almost 29 percent of 10th-graders and 12.5 percent of eighth-graders used marijuana in the past year, the survey showed.

The teen students are also turning to the fake stuff. One of every nine high school seniors said they've used synthetic marijuana, sometimes called Spice or K2, within the previous 12 months. This is the first year the survey asked about synthetic pot use. Fake marijuana, sometimes sold on the internet or in drug paraphernalia shops as "potpourri," contains leaves coated with chemicals that provide a similar high when smoked....

Alcohol use continued its steady decline since 1980s and hit a historic low for the survey, which began in the 1970s for 12th-graders. Forty percent of 12th-graders reported drinking in the previous 30 days during the 2011 survey, compared to 54 percent in 1991. Declines were reported in other grade levels.

The survey also showed a decline in teen cigarette smoking this year. The number of those who reported smoking in the previous 30 days for the three grades combined was 11.7 percent, compared to 12.8 percent in 2010.

Among other reactions, I conclude from this data that there is something of a zero-sum quality concerning which substantances teens will illegally use and that lately pot is becoming more popular again while booze and cigs are les popular.  In terms of long-term harms to individuals and society, I think this recent move in teen substance use is not a big deal and could well have long-term net benefits on various public health indicators.  In terms of sentencing law and policy, these data further suggest that moves to legalize pot has had an impact on teen substanve use (and are likely to gain still more strength in the years ahead).

December 15, 2011 in Offense Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing | Permalink | Comments (10) | TrackBack

December 14, 2011

Fifth Circuit, taking issue with Second Circuit's work in Dorvee, affirms 220-month sentence for child porn downloading

The Fifth Circuit has a lengthy new opinion in discussing federal child porn sentencing in US v. Miller, No. 10-50500 (5th Cir. Dec. 13, 2011) (available here).  Here is how the opinion starts, along with some snippets from what is an extended substantive discussion of the federal child porn guidelines:

Aubrey Miller pled guilty to one count of transportation of child pornography in violation of 18 U.S.C. § 2252(a)(1).  The district court sentenced Miller to 220 months of imprisonment (18 years and 4 months), a term within the advisory Guidelines range and less than the statutory maximum of 240 months of imprisonment.  The district court also imposed a twenty-five-year term of supervised release. Miller appeals his sentence and elements of his supervised release.  We affirm....

The Second Circuit discussed at considerable length in Dorvee the history of the sentencing Guidelines that apply to child pornography offenses and the role of Congress in that history.  The Second Circuit surveyed writings that have expressed disapproval of these Guidelines and congressional actions regarding them. That court was highly critical of the child pornography Guidelines, concluding that “[a]n ordinary first-time offender is therefore likely to qualify for a sentence of at least 168 to 210 months, rapidly approaching the statutory maximum, based solely on sentencing enhancements that are all but inherent to the crime of conviction.”  The Second Circuit asserted that “adherence to the Guidelines results in virtually no distinction between the sentences for defendants like Dorvee, and the sentences for the most dangerous offenders who, for example, distribute child pornography for pecuniary gain and who fall in higher criminal history categories.” That court declared, “[t]his result is fundamentally incompatible with § 3553(a).”...

With great respect, we do not agree with our sister court’s reasoning.  Our circuit has not followed the course that the Second Circuit has charted with respect to sentencing Guidelines that are not based on empirical data.  Empirically based or not, the Guidelines remain the Guidelines.  It is for the Commission to alter or amend them.  The Supreme Court made clear in Kimbrough v. United States that “[a] district judge must include the Guidelines range in the array of factors warranting consideration,” even if the Commission did not use an empirical approach in developing sentences for the particular offense.  Accordingly, we will not reject a Guidelines provision as “unreasonable” or “irrational” simply because it is not based on empirical data and even if it leads to some disparities in sentencing.  The advisory Guidelines sentencing range remains a factor for district courts to consider in arriving upon a sentence....

In the present case, the district court expressly considered and rejected reasoning similar to that in Dorvee to the effect that those who “merely” possess or transport child pornography should not receive the same or more severe sentences than those who have actual sexual contact with a child....  The district court considered the policies underpinning the child pornography Guidelines.  It concluded that the sentence imposed, 220 months of imprisonment, was not greater than necessary to accomplish the purposes set forth in 18 U.S.C. § 3553.

Miller contends that punishment for his offense should have been mitigated by his personal characteristics and history, including his difficult childhood, his service in the Navy (prior to his other-than-honorable discharge), and the empathy for child pornography victims and remorse he attained after he was raped in prison. The district court considered each of these factors.  Miller’s disagreement is with the weight that the court gave to each.  The district court did not fail to give sufficient weight to Miller’s characteristics and history.

Some related posts on related rulings from other circuits:

December 14, 2011 in Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

"Check Out Lindsay Lohan's Praiseworthy Probation Report!"

The title of the post is the headline of this "Exclusive" from E! Online, which gets started this way:

We heard the glowing details, now read them for yourself!

E! News has exclusively obtained a copy of Lindsay Lohan's probation reports, the documents that resulted in Judge Stephanie Sautner heaping praise on the actress in court this morning.

So what do they say?  Among other things, that Lindsay has so far ponied up $100 of her $3,900 legal bill, leaving her with a balance of $3,800 (odd though it may seem, she's right on time — the report notes that the starlet is on a payment plan of $100 per month).

It also echoed what Sautner said in court today: Lohan has made good on the terms of her probation thus far, completing five sessions with a therapist and logging 120 hours of community service at the morgue.

Because this is an E! News exclusive, I won't link to the report directly, but instead encourage LiLo fans to click through to the E! Online site.  The three-page report is not much of a read, though it appears on page one of the report that Lohan's $3,900 obligation is technically a "fine" not a "legal bill." 

December 14, 2011 in Celebrity sentencings, Criminal Sentences Alternatives, Who Sentences? | Permalink | Comments (3) | TrackBack

NC Governor vetoes bill to repeal state's Racial Justice Act

This AP story reports on an interesting (though I think anticipated) new development in the controversy over North Carolina's Racial Justice Act.  Here are the details:

North Carolina's governor on Wednesday halted a Republican effort to dismantle a law that gives death row inmates a new way to use racial bias as an argument for appealing their sentences. Gov. Beverly Perdue vetoed a bill that would have essentially repealed 2009's Racial Justice Act, which was designed to address concerns that race has played a role in sentencing prisoners to death.

The law says a judge must reduce a death sentence to life in prison without parole if he determines race was a significant factor to impose the penalty. It creates a new kind of court hearing where prisoners can use statistics to make their case to a judge. North Carolina and Kentucky are the only states with laws like it.

The Democratic governor had signed the 2009 bill into law. In a statement Wednesday, she said that "it is simply unacceptable for racial prejudice to play a role in the imposition of the death penalty in North Carolina."

Prosecutors who pushed the repeal said the act is clogging the courts with new appeals and, in effect, halting capital punishment. Nearly all of the 158 prisoners currently on death row — both black and white inmates — have filed papers seeking relief under the Racial Justice Act.

Perdue's veto means she must call lawmakers back to Raleigh to consider an override by Jan. 8. Lawmakers say it will be difficult to override the veto, especially in the House, where it passed in June along party lines. Republicans are a few votes shy of a veto-proof majority in the chamber. "I am disappointed in yet another decision by Gov. Perdue to put politics ahead of principle," House Speaker Thom Tillis, R-Mecklenburg, said in a prepared statement. He said she's let down families of victims and prosecutors "who need every available resource to crack down on violent criminals."...

The governor's veto came two days after she met with relatives of murder victims. Some of those relatives asked her to keep the 2009 act on the books. "We applaud her for understanding that racially-biased justice is not justice at all and for reaffirming that she values the lives and the safety of all citizens regardless of race," said a statement from Murder Victims' Families for Reconciliation, a Washington-based group that opposes the death penalty.

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

December 14, 2011 in Death Penalty Reforms, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12) | TrackBack

DC jury awards $2.3 million to man imprisoned a decade after wrongful parole revocation

As reported in this post at The BLT, a federal jury "awarded a Washington man $2.3 million in damages on Monday for the 10 years he spent in prison after his parole was wrongfully revoked." Here are the basics:

Charles Singletary was released on parole in 1990 after serving seven years in jail for an armed robbery conviction.  In July 1996, however, the District of Columbia Board of Parole -- a body that no longer exists -- revoked his parole and re-imprisoned Singletary after he was accused of being involved in a murder.

After several failed attempts to challenge the revocation in Washington's local and federal courts, the U.S. Court of Appeals for the D.C. Circuit sided with Singletary in 2006, finding that he had been denied due process at his parole-revocation hearing.  Singletary sued the city (PDF) in U.S. District Court for the District of Columbia in 2009.

In August, U.S. District Judge Amy Berman Jackson found that the District was liable for the violation of Singletary’s constitutional rights.  The trial on damages began Dec. 6.  The jury began deliberating on Monday and returned a verdict in the afternoon.

“We think that it fairly compensates Mr. Singletary for what was a terrible wrong and we were happy with the decisions along the way,” said Edward Sussman, a Washington solo practitioner and one of Singletary’s attorneys.  “It’s 10 years of a man’s life and unfortunately the only thing we have to give back is money.”

Singletary’s 10-year quest for justice began with his arrest in 1995 for the murder of Leroy Houtman. Singletary, who denied any involvement with the murder, was never indicted and the charges were dropped. In July 1996, according to the complaint, the D.C. Board of Parole held a hearing to decide whether to revoke Singletary’s parole from the earlier armed robbery case.

The board heard what was later determined to be hearsay evidence linking Singletary to the murder. His parole was revoked in August 1996 and he was sent back to jail. According to the complaint, Singletary “was subjected to harsh living conditions” and, because of inadequate medical treatment, went blind from untreated glaucoma.

Singletary first filed a challenge to this parole revocation in Superior Court in 1997, which was denied and upheld on appeal to the District of Columbia Court of Appeals. He tried again in 2000 in the same courts, unsuccessfully. Later in 2000, Singletary petitioned unsuccessfully for a writ of habeas corpus in Washington federal court. He appealed.

In July 2006, the D.C. Circuit reversed the District court’s denial of Singletary’s petition. The appeals court found that the board relied on testimony from police and a prosecutor that was based on hearsay reports from two individuals without first-hand knowledge of the crime.

“Yet though the government is not required to carry a heavy burden in such proceedings, it cannot return a parolee to prison based on a record as shoddy as this one,” the appellate judges wrote in their opinion (PDF).   By the time Singletary had a new parole-revocation hearing in October 2006, the duties of the D.C. Board of Parole had been transferred to the U.S. Parole Commission. The commission found that there was no evidence linking Singletary to the murder and released Singletary the following month.

Singletary sued the city in April 2009, seeking $20 million in damages.

While there are many interesting elements of this story that merit commentary, I would be especially interested to hear reader reactions to the amount of the jury damages award.  

My first reaction to the jury award was that $2.3 million for 10 years in prison is a pretty good pay-day: in this lean economy, I suspect some people might be excited about the prospect of "working" in prison for a $230,000 annual salary (even if we think of the imprisoned as working 24/7, that still works out to an hourly rate of more than $25/hour for all the time spent in prison).  And yet, thinking about the award as an offer, I suspect few if any would accept an offer of $2.3 million in order to spend the next 10 years in prison.   (That said, I suspect more than a few persons might seriously consider an offer of $20 million -- what Singletary sought in damages -- for a decade behind bars.)

One follow-up question (which I will pose to Paul Caron at TaxProf): Does Singletary now get to enjoy this $2.3 million award free from all federal and local taxes?  I believe that there has been some new rules and litigation of late concerning what parts of a compensatory tort award are still tax-free, and this case and the general damages verdict rended by the jury here could present an interesting set of issues concerning the nature of the harm(s) Singletary suffered from his wrongful imprisonment.

December 14, 2011 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8) | TrackBack

December 13, 2011

"Newt Gingrich A Hypocrite For Supporting Death Penalty For Marijuana Smugglers, Gary Johnson Says"

The title of this post is the heading of this new piece at The Huffington Post, which manages to get pot policy, the death penalty, and two notable GOP Prez candidates all into one headline.  Here are exceprts, which end with some interesting details about some prior comments about federal pot prohibition from the latest GOP front-runner:

Longshot GOP presidential candidate Gary Johnson attacked frontrunner Newt Gingrich for supporting the death penalty for marijuana smugglers even though he has admitted to smoking the drug himself during graduate school.

Gingrich "proposed the death penalty for marijuana -- for possession of marijuana above a certain quantity of marijuana -- and yet he is among 100 million Americans who smoke marijuana," Johnson told MSNBC’s Alex Witt over the weekend.

An outspoken critic of federal drug control policy, Johnson added he "would love to have a discussion with [Gingrich] on the fact that he smoked pot, and under the wrong set of circumstances, he proposed the death penalty for something, potentially, that he had committed?"

That's not quite right.  Even under Gingrich's draconian proposal, nobody could be sentenced to death for smoking pot.  But Johnson does effectively highlight one of the more outrageous pieces of drug policy to be introduced before Congress, and pushed by the GOP presidential front runner no less.  In 1996 the former House Speaker sponsored the Drug Importer Death Penalty Act, under which importing more than two ounces of certain illegal substances -- including marijuana -- can be punishable by life imprisonment or the death penalty.

Johnson, the former New Mexico governor, has been open with the media about his own experiences smoking pot.  After a paragliding accident in 2005, Johnson asserted "marijuana really helped [him] deal" with the pain, and in an interview with the New Republic he joked, "I never exhaled."  His policy position on medical marijuana flows naturally from that experience.

But Gingrich, who smoked pot while in graduate school in the '60s, wants to have it both ways.  "That was a sign we were alive and in graduate school in that era," he told New York magazine in 1995 of his illegal drug use.  And in 1982, he penned a letter to the Journal of the American Medical Association calling for the legalization of medical cannabis.  Federal law, he wrote, "continues to define marijuana as a drug 'with no accepted medical use,' and federal agencies continue to prohibit physician-patient access to marijuana.  This outdated federal prohibition is corrupting the intent of the state laws and depriving thousands of glaucoma and cancer patients of the medical care promised them by their state legislatures."

Some recent and older related posts:

December 13, 2011 in Death Penalty Reforms, Drug Offense Sentencing, Elections and sentencing issues in political debates, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3) | TrackBack

Eleventh Circuit addresses interesting SORNA and ex post facto issues

The Eleventh Circuit has an interesting decision today on federal sex offender registration rules and ex post facto concerns in US v. WBH, No. 09-13435 (11th Cir. Dec. 13, 2011) (available here). The unanimous panel ruling begins this way:

The Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16901, et seq., which was enacted in 2006, requires criminals who have been convicted of a sex offense to register as sex offenders.  In 1987, nearly 20 years before that Act was enacted, the defendant in this case was convicted of first degree rape.  If he had ended his criminal career back then, he might not have had to register under SORNA.  Instead of giving up crime, however, the defendant branched out into another field of criminality and in 2009 was convicted in this case for conspiracy to violate federal drug laws.  Because of the defendant’s earlier youthful offender adjudication on the rape charge, in sentencing him on this federal drug charge the court imposed as a condition of supervised release that he register as a sex offender under SORNA.  This is the defendant’s direct appeal from that sentence, challenging the requirement that he register as a sex offender.

The issue is whether it violates the Ex Post Facto Clause to require a defendant who is convicted of a post-SORNA crime that is not a sex offense to register as a condition of supervised release because of a pre-SORNA, Alabama Youthful Offender Act conviction that is a sex offense.  See U.S. Const. Art. I, § 9, cl. 3. The answer, as we will explain, depends on whether the SORNA registration requirements are civil or criminal in nature for ex post facto purposes. As we will also explain, those registration requirements are, on the whole, civil in nature.

December 13, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (22) | TrackBack

NBA's Ben Wallace gets Michigan drunk driving break not afforded to ESPN's Jalen Rose

Regular readers may recall a bit of controversy this past summer when  ESPN analyst and former NBA player Jalen Rose was given 20 days jail sentence for drunk driving in Michigan.  As reported in this blog post, one of Rose's lawyers called it a crime that Rose got such a "harsh" sentence and both the local press and national media ran stories about how persons sentenced in different areas of Michigan and the nation often will get stakly different sentences for drunk driving offenses.

Now, this new local sentencing story out of Michigan state court concerning another professional basketball player provides another interesting data point in the disparity story.  The piece is headlined "Detroit Pistons' Ben Wallace gets probation on drunken driving, gun charges," and here are the basics:

Ben Wallace was sentenced to a year's probation this morning and ordered to spend 30 hours coaching kids basketball following his plea earlier this year for drunk driving and having an unlicensed hand gun....

His attorney, Steven Fishman, noted that Wallace had been very cooperative with police when he was pulled over in the early morning hours of Sept. 24, driving erratically on Telegraph, near Long Lake in Bloomfield Township.  Police also found a handgun in the car, and live ammunition.

Wallace was initially charged with carrying a concealed weapon, a five year felony, but under a plea deal with prosecutors, he was allowed to plead to carrying a weapon while driving intoxicated, a 93 day misdemeanor, and also one count of driving while intoxicated.  The judge also ordered he pay a $600 fine, plus court costs.

Wallace is expected to hold a basketball clinic for the Boys And Girls Club of Royal Oak. The details have not be set, including dates.

On the surface, it would appear that Wallace committed a (much?) worse offense but ultimately got a (much?) lighter sentence than Rose.  Of course, maybe there are some specific differences in the cases not obvious on the surface that justify this seeming disparity.  And, perhaps more importantly, the mere fact that can be (and often is) a lot of "low-level" sentencing disparity in this arena does not, in an of itself, necessarily establish that the applicable sentencing law is either unjust or ineffective.

A few related posts on sentencing drunk drivers in Michigan and elsewhere:

December 13, 2011 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines | Permalink | Comments (6) | TrackBack

"The Limits of Bigger Penalties in Fighting Financial Crime"

The title of this post is the headline of this new entry in the Dealbook section of the New York Times.  The piece is authored by Professor Peter Henning, and here are excerpts:

President Obama, in a speech last week, called for strengthened oversight and accountability of financial firms by increasing the punishments that can be imposed for criminal violations. This comes on top of a recent proposal by Mary L. Schapiro, the chairwoman of the Securities and Exchange Commission, to ratchet up the available civil penalties for violating the securities laws.

Seeking greater punishments for white-collar offenders gives the impression the government is taking steps to prevent crime, but there is a substantial question whether these proposals will have any appreciable impact on deterring future violations. The problem is not so much the penalty that can be imposed but proving a violation so that the punishment can be meted out. The paucity of criminal prosecutions from the financial crisis shows that the real difficulty lies in gathering evidence to prove a crime took place....

Before any punishment for financial misconduct can be imposed, the government must prove an intentional violation, which in a criminal case requires proof beyond a reasonable doubt. That is often the rub, because the perceived financial “crimes” committed by Wall Street firms and others believed responsible for the financial crisis would involve showing intent to defraud, a difficult standard to meet....

Substantial prison terms have been imposed for violations of the antifraud laws in the last few years.  The hedge fund manager Raj Rajaratnam received 11 years for insider trading, the longest sentence for that violation ever given, and Zvi Goffer, a former trader at Mr. Rajaratnam’s Galleon Group, received 10 years for the offense. In the most prominent mortgage fraud prosecution to date, Lee B. Farkas, the former chairman of Taylor, Bean & Whitaker, received a 30-year prison term for causing losses the government estimated at $2.9 billion.

Along the same lines, in a $205 million health care fraud case, in September a federal judge in Miami gave a 50-year sentence to a former executive of a mental health company.  And Bernard L. Madoff received perhaps the highest sentence ever for fraud: 150 years.

It is difficult to conclude the penalties available under the law for committing financial crimes are somehow lacking.  Most financial frauds involve multiple violations that can be charged as separate crimes, so the potential punishment is often quite high, even for corporations that can only be subjected to fines.  But corporate cases rarely even get to court because prosecutors are willing to allow companies to enter into deferred or nonprosecution agreements in which the punishment is agreed to in advance.

Congress has already pushed for higher sentences through Section 1079A of the Dodd-Frank Act, which directed the United States Sentencing Commission to review the sentencing guidelines for securities and financial crimes to ensure they reflect the impact of the offenses.  So there is already pressure to ratchet up the recommended punishment for corporate fraud.

Higher recommended sentences may not result in great punishments because not all federal judges are willing to impose significant prison terms on white-collar offenders who often have otherwise sterling reputations and present little threat of future violations.  The sentencing guidelines are not mandatory, so judges are largely free to draft sentences they consider appropriate.

Just increasing potential prison terms or fines may not have any appreciable impact in deterring fraud, given the difficulties of proving a financial crime and the differing views of judges on the appropriate punishment for a white-collar offender.  That is especially true in cases like insider trading where it is hard to identify any individual victims and the defendant may be an executive with a record of charitable contributions.

Although President Obama asserted that Wall Street firms have violated “major antifraud laws,” the assumption that crimes occurred is easy to make but much more difficult for prosecutors to prove. And even if a crime can be established, it is not clear that just authorizing even greater punishments will have any real effect in deterring wrongdoing.

December 13, 2011 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (1) | TrackBack

Should we celebrate news that the number of executions in China has decreased dramatically in recent years?

The question in the title of this post is prompted by this news report headlined "China halves executions to about 4,000 a year: NGO." Here are the new data from the article:

China has halved its executions since 2007, when its high court began reviewing death row cases, but still puts around 4,000 people to death every year, a US campaign group said on Tuesday.   The exact number of people executed in China every year is a state secret, but according to Amnesty International, the country puts more people to death than the rest of the world put together.

The rare data, compiled by San Francisco-based campaign group Dui Hua, is partly based on a claim by a Chinese legal scholar at the quasi-governmental think tank, the Chinese Academy of Social Sciences, that executions have been halved.  It comes in the same week China executed a South African woman by lethal injection for drug smuggling after rejecting last-minute pleas for clemency from her government.

Dui Hua executive director John Kamm said the figure, which is nearly eight times the 527 Amnesty International says were executed outside China in 2010 -- was still far too high. "China has made dramatic progress in reducing the number of executions, but the number is still far too high and declining far too slowly," he said....

Beijing has taken measures in recent years to rein in the use of capital punishment, including requiring the country's supreme court to review all such sentences before they are carried out. Most executions are imposed for violent crimes such as murder and robbery, state media have said, but drug trafficking and some corruption cases are also punishable by death.

Earlier this year, China eliminated capital punishment for some economic crimes, including tax fraud, as it moved to curb use of the death penalty.   The amendment, which took effect on May 1, also exempted from capital punishment anyone over the age of 75 at the time of trial, unless they had committed murder "with exceptional cruelty".   Previously, only convicts younger than 18 or pregnant at the time of trial were exempt.

Executions in China have traditionally been carried out by shooting, but lethal injections are increasingly being used.

I am never sure how to react to stories about the administration of capital punishment in other countries, so I am eager to hear reader reactions to this news.  I am especially curious to hear if ardent supports of the death penalty in the United States are worried about the endurance of this punishment if (and when?) other countries with a local capital punishment record start moving away from this death as a sanction.

December 13, 2011 in Death Penalty Reforms, Sentencing around the world | Permalink | Comments (3) | TrackBack

New report assails Illinois' juvenile justice system

As detailed in this local article, which is headlined "Illinois' juvenile justice system is failing, state report says," a new state study is assailing how justice is delivered to kids in the Prairie State. Here are the basics:

Illinois' juvenile justice system is failing to rehabilitate offenders and help them return to life in their communities, according to a state commission's study to be released Tuesday.

More than half of the people released from state Department of Juvenile Justice facilities are later incarcerated again in the juvenile system, according to the study by the Illinois Juvenile Justice Commission. The report also says the state's juvenile justice system "is, in many ways, the 'feeder system' to the adult criminal justice system and a cycle of crime, victimization and incarceration."

The commission was ordered by law to develop recommendations to help youth offenders successfully transition back into their communities. The commission's members found a system that is in desperate need of an overhaul, said its chairman, Judge George W. Timberlake, retired chief judge of the 2nd Judicial Circuit....

Incarcerating a juvenile offender for one year in a state youth facility costs more than $86,000, according to the report. In contrast, community-based rehabilitation programs that the report says are more effective cost $3,000 to $8,000 per person a year.

The juvenile justice system also fails offenders once they are released from custody, the report says. About 40 percent of incarcerated juvenile offenders are being held for parole violations such as skipping school or violating curfew, behavior that "likely poses no threat to public safety" and taxes the system's resources, according to the report....

Rather than locking up children for relatively minor parole violations, the youth parole system should rely on re-entry strategies that are better tailored to juveniles' needs, the report says.

December 13, 2011 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

December 12, 2011

Is it time for Texas to consider making drunk driving a potential capital offense?

NA-BO494_DRUNK_NS_20111211161802The question in the title of this post is prompted by this new Wall Street Journal article, which is headlined "Texas Blood Test Aims at Drunk Drivers."   The focus of the piece concerns the trend in Texas for local official to demand "that drunken-driving suspects who refuse to take breathalyzer tests submit to blood tests that measure the amount of alcohol in their systems."   But the chart reprinted here and some stats from the article, combined with the historical affinity of Texas for capital justice and my own belief that drunk driving is a kind of crime that could (and should) be readily deterred, prompts the question.  Here are the stats:

Over the July 4 weekend, almost 500 law-enforcement agencies in Texas participated in a no-refusal campaign that netted about 1,500 DWI arrests. Bexar County, which includes San Antonio, recently implemented mandatory blood testing year-round....

Last year, about 800 traffic deaths in Texas involved a legally intoxicated driver, and that number has steadily increased in recent years, according to the Texas Department of Transportation. In 2009, Texas had the most people killed in alcohol-impaired crashes, according to the most recent data from the National Highway Traffic Safety Administration.

Perhaps Grits for Breakfast or some other Texas criminal justice bloggers can help me understand why there have been hundred more drunk driving death in the Lone Star State in recent years. Whatever accounts for this trend, the fact that there is evidence that thousands of drunks drive on Texas roads over a holiday weekend suggest to me that getting tougher on this offense is needed in order to try to save innocent lives.  I have often said to my students that I think simply making just one repeat drunk driver who kills someone in an accident simply eligible for a death sentence might greatly reduce the number of drunk driviers and potentially save a significant number of lives.  With a number of holiday weekends coming soon, perhaps it is time for Texas to test my hypothesis.

UPDATE:  In response to some early comments expressing constitutional concerns with my suggestion, let me articulate a bit more fully what kind of drunk driving offense I think might be subject to being a potential capital offense.  I am imagining a drunk driver with a lengthy criminal history who, with a very high BAC and perhaps also with a minor in his car and with no possible need to be driving after heavy drinking, drives very recklessly and kills multiple people. 

Though I do not know Texas capital murder law very well, it seems possible that the existing state felony murder laws might already be read to make such an extremely reckless and deadly case of drunk driving a capital offense.  (I think Texas law makes driving drunk with a minor in the car and a third DWI offense a felony, which in turn could be the basis for a felony murder capital charge if/when such a drunk driver were also to kill multiple victims.)  And, under existing SCOTUS jurisprudence, I think it is constitutional to make a capital offense of any felony that causes a death as long as the defendant's underlying felonious behavior involves extreme recklessness with respect to human life.

Notably, though not even involving a death, this ABC News article from last year discusses a case in which a repeat drunk driver received a life sentence for his ninth DWI offense.  I think capital punishment might be constitutionally permissible for an offender like this who caused multiple deaths.

December 12, 2011 in Death Penalty Reforms, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (27) | TrackBack

"Saving Grace: Salvaging the Pardon Advisory System"

The title of this post is the title of this notable new guest post at the ACS Blog by Samuel Morison, a former staff attorney at the Office of the Pardon Attorney. Here is how it starts and ends:

For most of this country’s history, the practice of executive clemency has quietly functioned as an ancillary feature of the criminal justice system, without attracting much attention.  The purpose of the pardon power, as the Founders envisioned it, was to fill the inevitable gaps in the just and humane infliction of punishment. In addition to being a failsafe to correct injustices that escaped judicial scrutiny, executive clemency was conceived as an equitable vehicle for bestowing legal “forgiveness” in appropriate cases....

Beginning in the 1970’s, however, under the influence of the “new retributivism,” the prevailing rehabilitative paradigm began to collapse, along with the traditional practices of discretionary sentencing and parole....  As many commentators have noticed, the prevalence of determinate sentencing has not eliminated the exercise of discretion, but merely shifted the balance of power from judges and juries to prosecutors.  Not surprisingly, the Justice Department also sought to control the pardon power, the last remaining bastion of unfettered discretion in the criminal justice system.

This was possible because the hornbook account of the pardon power as a nearly absolute prerogative of the President is actually a bit misleading.  In fact, the President’s immediate legal staff does not have the resources to properly evaluate the hundreds of clemency cases that are filed annually.  Instead, by longstanding practice, the President has delegated this responsibility to career officials in the Justice Department’s Office of the Pardon Attorney.   Pursuant to rules promulgated by the President, clemency applicants are required to submit their petitions to the pardon office, which, in turn, exercises firm control over the flow of information to the White House.

Having served as a staff attorney in the pardon office for more than a decade, I can say with some confidence that the office does not view its role as a neutral arbiter.  Instead, it exploits the asymmetry of information to protect the Department’s institutional prerogatives, churning out a steady stream of almost uniformly negative advice, regardless of the merits of any particular case.   In effect, this amounts to little more than an effort to restrain (rather than inform) the President’s exercise of discretion.   The implicit message is clear: you will either do as we suggest, Mr. President, or you’re on your own....

[A]s revealed in last Sunday’s Washington Post, President Bush did not know that the clemency advice rendered by the pardon office was infected with an implicit racial bias. Remarkably, according to a statistically rigorous study of previously unavailable data conducted by ProPublica, black applicants are four times less likely to receive a pardon than similarly-situated white applicants, even after controlling for a variety of relevant variables, including age, gender, marital status, offense, and sentence.  This is an astonishing finding.  While the Attorney General has spoken with some eloquence about the need to revitalize the mission of the Civil Rights Division, he should perhaps begin by putting the Department’s own practices in order.

Tellingly, the Department was given advance notice of the ProPublica study, but made no effort to take issue with the validity of the analysis prior to its publication.  Instead, it merely issued a statement asserting that controlling for such “objective” factors fails to capture the “subjective” element in the evaluation of a clemency application, such as “an applicant’s candor and level of remorse,” or their perceived “attitude” or “stability.”  But this is hardly a convincing reply, because it seems to concede that the “subjective” evaluation of applications by the pardon office accounts for the dramatic racial disparity reflected in the data, which is precisely the point of the study.

The White House’s response to the story is also unpersuasive, albeit for a different reason.  The Counsel’s Office insists that the President’s evaluation of pardon cases “does not consider the race of the applicants,” and that the White House doesn’t “even receive information on the race of applicants.”  This is undoubtedly true, but is nevertheless a non-sequitur, because the authors of the advice are aware of the race of each applicant.  The fact that the President is kept in the dark makes the situation worse, not better.

The fundamental issue is this: who will exercise effective control over this broad discretionary power, the President or a small cadre of anonymous bureaucrats in the Justice Department?  Historically, the pardon advisory function has been housed in the Department entirely as a matter of administrative convenience, pursuant to the President’s authority under the Pardon Clause.  Whatever utility this arrangement once had, the structural deficiencies in the existing advisory system have rendered it dysfunctional.  Under the circumstances, I submit that the President has a constitutional obligation to remove the advisory role from the Justice Department, and reconstitute it within the Executive Office of the President, where it can operate without the burden of an entrenched conflict of interest. 

Even before the recent study revealing racial disparity in the federal pardon process, I had come to believe it was bad policy and bad practice to have the Justice Department serve as functional gate-keeper for clemency petitions.  This commentary (along with the recent evidence of racial disparity) inspires me to claim that it may also be unconstitutional.  I wonder if anyone might have the energy and inspiration to make a creative (but I think viable) constitutional argument to this effect on behalf of a uniquely deserving clemency petitioner.

Some rrelated posts:

December 12, 2011 in Clemency and Pardons, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (19) | TrackBack

Why the wasteful(?) Eighth Circuit affirmance of FSA pipeline sentence with Hill and Dorsey pending?

As regular readers know (and as reported here), last month the Supreme Court via cert grants in Hill and Dorsey took up the issue of whether the Fair Sentencing Act's reduce crack mandatory minimums apply to initial sentencings that take place after the statute’s effective date if the offense occurred before that date.  Because this circuit-splitting issue will now be resolve by the Supreme Court within a matter of months, I find notable and a bit worrisome this ruling today in US v. Duncan by an Eighth Circuit panel which affirms a "old" 5-year mandatory minimum term against a defense challenge that the new law should apply.

The ruling in Duncan notes the circuit split on this FSA application issue and the fact that the Supreme Court has taken up this matter, but it then affirms the sentence by noting existing circuit precedent that forecloses the defendant's argument that the reduced FSA mandatory minimum terms apply to this pipeline case.  But I cannot help but wonder why the Eighth Circuit did not simply hold on to this case awaiting guidance from SCOTUS rather than resolve it against the defendant and thereby require her to file a cert petition to keep the issue preserved.

I assume there are right now dozens, if not hundreds, of similar cases pending in the circuits courts that have rejected the FSA applicability in this situation, and I also assume that the most efficient (and arguably just) way to handle these cases right now is to just keep them on the circuit docket until the Supreme Court rules so that additional filings are not required by the parties until we get a SCOTUS decision.  The approach taken by the Eighth Circuit, however, will now require (1) a SCOTUS cert filing by the defendant, (2) consideration by the SG concerning any possible SCOTUS response, (3) a GVR by SCOTUS if it issues a ruling in Hill and Dorsey with any pro-defendant elements.  And, assuming the defendant in Duncan has a court appointed attorney (as do the vast majority of crack defendants) each one of these steps will be taking place entirely on the federal taxpayers' dime.

Given the size of the federal budget, the thousands of dollars that seem likely now to be wasted in this Duncan case is hardly going to be noticed.  But I still wonder what benefits might be gained by the Eighth Circuit's (too) quick disposition while this matter is pending before SCOTUS.  And I also wonder if (and hope that) other circuits are thinking through these matters before being too quick to resolve cases that seem likely to be back on their docket in only a matter of months.

December 12, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Deep thoughts about thoughts and punishment

Via SSRN, I just saw this interesting new article titled "Neuroscience, Normativity, and Retributivism" by Michael Pardon and Dennis Patterson, which comes with this abstract:

Advocates for the increased use of neuroscience in law have made bold and provocative claims about the power of neuroscientific discoveries to transform the criminal law in ways large and small.  Perhaps the boldest and most provocative of these claims are made in an influential article by Joshua Greene and Jonathan Cohen.  They claim that neuroscience will reveal that criminal defendants are not morally responsible for their actions and that this revelation will thereby undermine retributivist justifications for criminal punishment. In the process of resolving previously intractable debates between consequentialism and retributivism, neuroscience will also, they contend, resolve age-old debates about free will.

In this essay, we discuss several serious problems with their argument. We maintain that no neuroscientific discoveries will lead to the sorts of changes predicted by Greene and Cohen and, even if they did, those changes would not be the product of neuroscientific insight but result from unwarranted and problematic inferences which ought to be resisted 

December 12, 2011 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack

Another SCOTUS summary reversal again stresses AEDPA deference

The Supreme Court issued a per curiam summary reversal this morning in Hardy v. Cross, No. 11-74 (S. Ct. Dec. 12, 2011) (available here), to once again correct a federal circuit court that did not show sufficient deference in federal habeas review to a state court decision upholding a criminal conviction. Here is how the seven-page unanimous opinion starts:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254, “imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.”  Felkner v. Jackson, 562 U. S. ___, ___ (2011) (per curiam) (slip op., at 4) (internal quotation marks omitted).  In this case, the Court of Appeals departed from this standard, and we therefore grant certiorari and reverse.

December 12, 2011 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

"No Change in Sight for Sentencing Guidelines"

The title of this post is the headline of this recent piece by Professor (and former federal prosecutor) Wes Porter appearing in the legal newspaper The Recorder.  Here are excerpts:

The past decade has brought dramatic and progressive change to criminal sentencing in federal court. The continued utility of the United States Sentencing Commission and its sentencing guidelines miraculously survived this change.  The Supreme Court, in its 2005 decision in U.S. v. Booker, rescued the guidelines from obscurity in order to continue to promote the sentencing policy goals of uniformity and proportionality.  However, the next important change needed is the least likely to occur — the Sentencing Commission itself must steward the "evolution" of its guidelines.

District judges routinely reject certain provisions of the guidelines as unhelpful.  The Sentencing Commission must reinvent itself by reshaping its guidelines post-Booker.  To start, the commission should remove the provisions in the guidelines that courts regularly exercise their discretion to disregard.  And examples of routinely disregarded guideline provisions are not hard to find.

For example, the guidelines still require district judges to calculate and consult artificially enhanced punishments based upon often uncharged — and sometimes acquitted — conduct called "relevant conduct."  The guidelines still require courts to consult its recidivism (re-)classifications such as the "career offender" provision.  Here, the judge has all the details of the defendant's criminal history and resulting (already severe) sentencing range, yet the guidelines require the court to consider a more severe sentence because of its recidivism label.  The guidelines still require parties to litigate, and judges to find, whether conduct qualifies for other guideline-created labels, such as whether it is "serious," "violent" or "sophisticated."...

[Since] Booker, district judges generally have embraced the sentencing policy goals, consulted the guidelines and imposed "reasonable" sentences.  Congress fortunately has not attempted to legislate a fix to a sentencing process that is not yet broken.  The federal sentencing process has played out as intended by the Supreme Court and as well as could have been expected for the Sentencing Commission.  Yet, with respect to these unhelpful guideline provisions, district judges are required to make findings about them and consult the resulting calculation, but they then may exercise their discretion to ignore the provisions when imposing a sentence....

Many provisions in the guidelines do not provide any helpful information to the court at sentencing.  Only the resulting calculation is helpful to the court as an "anchoring" reference for its sentence....

There are many explanations for the lower sentences since Booker.  Many believe that the guidelines were skewed too high. Others argue that district judges, particularly guideline-era judges, have gained greater comfort with sentencing discretion and accounting for individual circumstances. The explanation, however, also may reflect the district judges' exercise of their discretion to disregard unhelpful provisions in the guidelines.  The sentencing commission should review these trends and remove generally disregarded provisions of the guidelines to promote continued uniformity and proportionality....

Many provisions in the guidelines involve wholly unhelpful manipulations and recategorizations of information already available to the court.  In fact, certain problematic provisions skew the "anchoring" guideline calculation and mislead the district court's sentencing decision. The Sentencing Commission should endeavor to weed these provisions out of the guidelines....

The Sentencing Commission should appreciate that only a meaningful guideline calculation assists the court when exercising its discretion, and that only a meaningful anchoring reference continues to promote uniform and proportional sentences in federal court.  The anchoring guideline calculation could have sustained meaning in the post-Booker sentencing process if the Sentencing Commission evaluated trends and trimmed the guidelines back.  Without a dramatic change, the post-Booker sentencing process will become increasingly inefficient and largely a waste of time and resources.

December 12, 2011 in Advisory Sentencing Guidelines, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Notable new pot legalization poll numbers from two states

This piece at the Drug War Chronicle, headlined "Marijuana Legalization Fares Well in CO, MA Polls," reports on some new pot polling. Here are excerpts:

Two polls released late last week show strong support for marijuana legalization in Colorado and Massachusetts. Both states have already decriminalized the possession of small amounts of pot, and activists in both states are working toward legalization. In Colorado, an effort to put a legalization initiative on the ballot next year is well underway, while in Massachusetts, this year's emphasis is on legalizing medical marijuana.

In Massachusetts, a DAPA Research poll conducted for the Massachusetts Cannabis Reform Coalition/NORML found that 58% support legalizing marijuana and regulating it like other agricultural commodities with sales prohibited to underage persons. The figure was 69% for Democrats, 44% for Republicans, and 54% for "other."

Support for legalization rose to 62% when respondents were asked if a proposed law would tax and regulate the cultivation and distribution of marijuana to adults like the state currently regulates alcohol. The figure was 70% for Democrats, 56% for Republicans, and 60% for "other."

The poll also found that 54% opposed the federal government disregarding state laws in states that legalize marijuana, while only 35% supported the federal government disregarding state law....

In Colorado, a Public Policy Polling survey asked "in general, do you think marijuana usage should be legal or illegal," and legal won by a margin of 49% to 40%. A similar question about medical marijuana showed support at 68%, with only 25% saying it should be illegal. No cross tabs were available for the poll....

The poll sends a mixed message for Colorado legalizers. It demonstrates that marijuana legalization is more popular than pot prohibition in the Rocky Mountain State, but not quite popular enough to win at the polls next year. The conventional wisdom among initiative experts is that they should be polling at 60% or above before the campaign begins.

December 12, 2011 in Pot Prohibition Issues, Who Sentences? | Permalink | Comments (8) | TrackBack

December 11, 2011

What benefits might Californians be getting for $120 million/year in capital costs?

The question in the title of this post is prompted by this very lengthy piece appearing in the Ventura County Star under the headline "Death penalty's cost to California more than $120 million a year."   Here are snippets from the article:

Since the death penalty was reinstated in California in 1978, judgments of death have been rendered 812 times.  The resolution of those cases to date: 718 inmates are incarcerated on San Quentin's death row, 55 condemned inmates have died of natural causes, 19 have committed suicide, six died from other causes, one was executed in Missouri for a separate crime. And California has carried out just 13 executions. As of 2008, there were 30 people who had been on death row for more than 25 years.

The cumulative cost for all this, above what taxpayers would have borne had the ultimate penalty been a life sentence without possibility of parole, is estimated at $4 billion. Just this year the cost of having the death penalty on the books is estimated at from $120 million to $184 million.

The record leads to one blunt conclusion, expressed by the authors of an exhaustive study published earlier this year in the Loyola of Los Angeles Law Review: "California has the most expensive and least effective death penalty law in the nation."

That reality has been enough to make a convert of [former LA County DA Gil] Garcetti, who has joined with other past participants in carrying out the death penalty such as former San Quentin warden Jeanne Woodford and Don Heller, the attorney who wrote the state's death penalty law, to say the system just doesn't work — not for taxpayers and not for public safety.  "You have people involved in the process who have reached the same conclusion," he said.  "It's ineffective, and we can't afford it.".

Garcetti has become the lead spokesman for a group called SAFE California.  It is sponsoring a ballot initiative, now in the signature-gathering phase, that would ask voters next fall to eliminate the death penalty and replace it with a sentence of life in prison without possibility of parole....

All death sentences are automatically appealed directly to the California Supreme Court, which is swamped with such cases.  Although the court is now keeping pace with its caseload — over the last decade it has issued opinions in 232 death penalty appeals and taken on 233 new cases — its backlog remains daunting.  From 1996 through 2001 the court decided 52 cases while 192 new ones came onto its docket....

Backers of the initiative are hoping Californians — including many of those who agree in concept with capital punishment — can be persuaded that administration of the death penalty in this state has become so inefficient and so costly it ought to be abandoned, freeing up $120 million or more annually that they assert could be spent much more productively.

They are aware it will be a tough sell politically.  Historically, Californians have strongly supported the death penalty.  The ballot measure that re-established capital punishment in 1978 passed with 71 percent support.  Eight years later, 67 percent of voters decided to boot off the Supreme Court the late Chief Justice Rose Bird and two associate justices, based almost entirely on their perceived categorical opposition to the death penalty....

Garcetti said backers of the initiative hope to make voters aware of what it's costing taxpayers to sustain the system.  "People do not know this, and when they learn this they are dumbfounded by the costs," he said.  "Circumstances have changed so dramatically in terms of our economy that people are desperate to find more efficient ways to spend our tax money."

I think I have indicated previously that I am very hopeful that the potential abolition of the death penalty be put to the voters in California, and I am especially excited that the focal point of the political dialogue may be a matter of costs and benefits.  This local article does a very nice job detailing the considerable costs to California to running its capital system, but my post seeks to urge readers to try to set forth potential benefits the state may get from this system.  Even though (too) many are often quick to say that one "cannot put a price on justice," I wonder if readers might be able to articulate some distinct benefits they percieve from California's efforts to administer capital punishment. 

December 11, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (33) | TrackBack

Reflections on Blago's sentencing, deterrence and the privilege of privilege

The New York Times has published two lengthy pieces by columnist James Warren that effectively capture some of my (final?) thoughts about Rod Blagojevich's federal sentencing this past week.  Here are the headlines, with links and excerpts:

"What Blagojevich’s Sentence Says About Corruption and Greed":

As for a link between a tough sentence and deterrence, the key distillation came earlier from Reid Schar, part of a prosecution team that deserves credit for taking a confusing set of tactics in the first trial, which ended in a hung jury on 23 of 24 counts, and streamlining a successful retrial.

Mr. Schar argued that tough sentences work particularly well with white-collar criminals, like Mr. Blagojevich, given how such a class of bad actors is smart, educated and driven by greed, as opposed to ideology. “And greed,” he said, “can be deterred.”

Really? After the verdict, I ran into two federal judges and told them about those comments. One was a Republican, the other a Democrat; both are fair-minded public servants — and both laughed. “Deter greed, eh?” said one. “Good luck!”

When I told Jeffrey Seglin, an ethicist and director of the communications program at the Kennedy School at Harvard, he said people’s values did not change much once they reached adulthood. He also doesn’t buy into the logic of deterrence for most politicians.

Since the greatest corruption, both legal and illegal, is found in the financial sector, I asked Jim Cramer, the brainy host of CNBC’s “Mad Money,” what Wall Street thinks of tough sentences for white-collar criminals. He’d been on a conference call with bankers when word of the Blagojevich sentence arrived. “It took their collective breaths away,” Mr. Cramer said.

“They are still reeling from the Raj sentence,” he added, referring to the 11-year term given in October to Raj Rajaratnam, a hedge fund kingpin convicted of insider trading. “Nothing scares these guys more than jail time,” he said, referring to the Wall Street world.

Will a new, cleansing fear among the political class be the true Blagojevich legacy? I’d like to think that Mr. Cramer is on the mark. But most politicians will probably conclude that Blago’s real error was stupidity and will seek similar ends in a subtler fashion.

"Let’s Do Something About Privilege, Donors, Corporations and the Constitution"

In wondering what lessons are to be drawn from Mr. Blagojevich’s fall, I’m drawn to ... technical realities involving the administration of justice.  Some of the latter were suggested by Alison Siegler, a defense lawyer who runs the federal criminal justice clinic at the University of Chicago Law School.

Early this year, District Judge James Zagel, who sentenced Mr. Blagojevich to 14 years in prison, sentenced Brian Brown, a South Side drug addict Ms. Siegler represented, to 10 years and 8 months.  He had pleaded guilty to selling two ounces of crack cocaine to a government informant for $200.

In the Blagojevich case, the sentencing guidelines meant he should get from 30 years to life. The prosecution conceded those were onerous and urged a 15-to-20 year range, with the judge ultimately lowering the low end and giving him 14 years.  The guidelines for Mr. Brown’s drug offense, even after he accepted responsibility and pleaded guilty, were 22 to 27 years.  The government stuck to that range but Ms. Siegler and her students persuaded Mr. Zagel to go lower.

She showed me other cases of hers in which the government insisted on holding to stiff parameters of federal sentencing guidelines that many concede are harsh and inconsistent, especially when drugs are involved. Her clients included an 18-year-old drug courier who got a no-mercy sentence for importing heroin from Nigeria to Chicago in his stomach and a Mexican landscaper who pleaded guilty to illegal re-entry to this country. The landscaper was raised here illegally by his parents and, after his deportation, returned for 12 years during which he bought a home, raised three children and even paid taxes.

The pattern she outlined is clear: a certain type of defendant, whose case probably won’t elicit public attention, isn’t cut the same slack as Mr. Blagojevich and other white-collar defendants. Several federal judges privately agreed with her.  “Blagojevich highlights the way in which the prosecution creates sentencing disparities based on privilege,” Ms. Siegler said.

I would throw into the (final?) reflective mix here a few other notable white-collar federal sentencing stories that unfolded just this week with less fanfare (except on this blog):  a major Medicare fraudster getting a prison term of 35 years in Florida (details here), the affirming of a 10-year prison sentence for lying to FBI agents (details here), and a prosecutorial recommendation that he serve 15 months in prison for being evasive about his steroid use in grand jury testimony (details here).  

I am not sure what to make of all these (disparate?) sentencing data points, but I am sure that they reinforce my view that it is especially hard to assess with confidence whether and when a white-collar prison sentence is just and/or effective.  That reality, in turn, highlights why having truly sound and balanced white-collar sentencing guidelines, rather than current guidelines which actually recommend life without parole for a first offender like Blago seems to me especially important.)

Some recent and older related posts on the Blagojevich case:

December 11, 2011 in Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (5) | TrackBack