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December 13, 2011

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