December 24, 2011
Connecticut Supreme Court upholds use of Facebook photos to revoke probation
Yesterday the Connecticut Supreme Court issued an interesting ruling concerning sentencing procedures and social media via Connecticut v. Altajir, No. SC 18706 (Conn. Dec. 23, 2011) (available here). Here is how the opinion starts, some of the factual backgrouns and then notable excerpts from the substantive portion of the unanimous ruling:
In this certified appeal, the defendant, Alia K. Altajir, appeals from the judgment of the Appellate Court affirming the judgment of the trial court revoking the defendant’s probation and sentencing her to three years incarceration. See State v. Altajir, 123 Conn. App. 674, 689, 2 A.3d 1024 (2010). On appeal to the Appellate Court, the defendant claimed that the trial court had violated her right to due process under the fourteenth amendment of the United States constitution and article first, § 8, of the constitution of Connecticut by improperly admitting, during the dispositional phase of a probation revocation proceeding, a number of undated photographs gathered from Facebook, a social network website on which the defendant maintained a profile....
The record reveals the following undisputed facts and procedural history. In July, 2004, the then nineteen year old defendant operated an automobile while under the influence of alcohol. She lost control of her vehicle, which was carrying two passengers, and inadvertently drove off the road, down an embankment and into a river. One of the passengers drowned as a result of the accident. In October, 2006, the defendant pleaded nolo contendere to charges of misconduct with a motor vehicle in violation of General Statutes § 53a-57 and operating a motor vehicle while under the influence by a person under twenty-one years of age in violation of General Statutes § 14-227g. In accordance with a plea agreement, the trial court, Brunetti, J., imposed a sentence of five years of incarceration, suspended after one year, and five years of probation. The trial court also imposed a number of special conditions of probation, including that the defendant install an ignition interlock device on any vehicle she owned or operated and that she not operate a motor vehicle without a valid license. The trial court at sentencing "stress[ed] to this defendant that the treatment conditions, postincarceration, are very important and will certainly be enforced as aggressively as possible by the state." The court further specified that "[i]f you do ten out of eleven [special conditions of probation] that is not good enough. If you violate one of those conditions you could be violated and wind up serving the balance of the four years."...
The defendant was released from prison in 2008, after serving the nonsuspended year of her sentence. While on probation in 2009, she was involved in a minor motorvehicle accident. The accident did not involve alcohol use; police determined, however, that she was operating a vehicle without the requisite ignition interlock device and that she had notrestored her driver’s license following its temporary suspension. The defendant subsequently admitted to violating the special conditions of probation that prohibited her from engaging in that conduct.
At a subsequent dispositional hearing, the state recommended that the court revoke the defendant’s probation and impose the remaining four years left to serve on her underlying sentence. The state characterized the defendant as a "marginal probationer" who had failed to obtain a job, further her education or provide sufficient evidence of community service while on probation. The state proceeded to emphasize that the defendant is "maintaining [a] Facebook site, and this is put out on the public domain for people to see.... [and] in all of these pictures is again worshipping at the altar of alcohol and debauchery and lewd behavior. And why is that significant? It’s significant because the message didn’t get sent, and this individual refused to accept it."
The evidence of reliability proffered by the state here is, at best, limited, and certainly would not be sufficient under the rules of evidence at a trial. The state contends that under the much less stringent standard for admissibility at probation proceedings its uncontested representation to the court that the defendant had darker colored hair after her incarceration, consistent with her appearance in some of the photographs, coupled with the presence of upload dates on the photographs, provided an adequate basis for the court to rely on the photographs as depictions of the defendant’s behavior during probation. In refutation, however, the defendant has offered even less. At no point did the defendant deny the state’s clear and repeated assertion that these photographs represented her behavior while on probation. Strikingly, in her allocution the defendant made no attempt to counter the state’s accusation that she appeared in these photographs "again . . . worshipping at the altar of alcohol and debauchery and lewd behavior" or to respond to the court’s expressed bafflement that "she still has the audacity to go back on Facebook and show herself in a condition of being intoxicated." Instead, the defendant admitted, partially through counsel, that she continued to drink alcohol and denied only the suggestion that she ever drove after drinking....
Under these circumstances, because the state has articulated an uncontradicted basis for determining whether each of the challenged images depicted the defendant before or during probation and because the defendant has failed to contest that the photographs do in fact depict her while on probation, we hold that the photographs contained the minimal indicia of reliability necessary to pass constitutional muster in the context of a probation revocation hearing.
Ballot proposal to reform California's three-strikes law moves forward
As reported in this local article, which is headlined "Three strikes reform advances: Language OK'd for ballot; signatures needed," a proposal to bring sentencing reform to the California voters in 2012 continues to progress. Here are the details:
A proposed ballot measure aimed at reforming California's three strikes law has made it past an important hurdle. Attorney General Kamala Harris' office has approved the bill's language — crafted by Stanford law professors — allowing backers to begin collecting signatures to get the measure on the June 2012 ballot.
Supporters say the measure could end up saving taxpayers $100 million per year in reduced incarceration and prosecution costs. The proposed measure differs from past efforts to change the law that went into effect after voters approved it in 1994.
Under the three strikes law, offenders who commit serious, violent crimes can have their sentences doubled if convicted of a second "strike" and can receive 25 years to life in prison on their third strike. The third strike, unlike the first two, does not have to be a serious or violent crime — and it is that aspect that has drawn the most criticism....
The new proposed ballot measure requires that the third strike be a serious, violent crime. The only exception is in the case of convicted murderers, rapists and child molesters, who can still be sentenced to 25 to life for less serious felonies. The measure would also allow certain inmates convicted under non-serious third strikes to petition for re-sentencing....
More than 8,000 third strikers are serving life sentences in California, and officials estimate that one-quarter of them were convicted of non-serious, nonviolent crimes....
Proponents of the new measure, now officially titled "The Three Strikes Reform Act of 2012," must collect more than 500,000 valid signatures for it to qualify for the June ballot.
I am intrigued, and a bit puzzled, that this article talks about this three-strikes reform proposal appearing on the "June 2012 ballot" rather than on the ballot in November 2012. This entry at Ballotpedia explains that June 2012 is when California is scheduled to have its presidential primary vote, but it also suggests that the current plan is for most ballot initiative to show up on the November 2012 ballot. My guess is that this news report is just guessing about when this three-strikes reform proposal would come up for a vote, and I would offer the alternative guess that it is more likely to ultimately appear on the November 2012 ballot.
"Do we have a responsibility to use neuroscience to inform [sentencing] law?"
The question in the title of this post involves a minor tweak to the title of this interesting entry at the Practical Ethics blog at The University of Oxford, which concludes with a fascinating case-study and follow-up queries that should be of special interested to sentencing fans:
[C]onsider a case that has gained much exposure in the area of NeuroLaw, and was discussed at the beginning of the BBC segment as well as in the Royal Society report (adapted from the Royal society report):
[A man] was found to have developed unusual sexual arousal behaviours and had begun to secretly collect child pornography. He was eventually removed from the family home for making sexual advances towards his step-daughter, and was subsequently diagnosed with paedophilia and convicted of child molestation. […]
The evening before sentencing, the man was admitted to hospital with a headache and balance problems. Neurological examination, which included magnetic resonance imaging (MRI) revealed a cancerous tumour that displaced the right orbitofrontal cortex. The orbitofrontal cortex is involved in the regulation of social behaviour.... Disruption of this system can result in decision-making that emphasizes immediate reward rather than long-term gain, impairing the subject’s ability to appropriately navigate social situations.
Following examination the tumour was removed and after several days the patient’s balance improved and he was able to complete a Sexaholics Anonymous programme. Seven months later the patient was deemed to no longer be a threat to his stepdaughter and returned home.
Almost a year later, the man reported persistent headaches and that he had begun secretly collecting child pornography again. Tumour recurrence was revealed by MRI studies and surgery was performed to remove it for a second time. Once again the patient’s behaviour returned to normal after a couple of days.
If it matters to us (in terms of moral responsibility) that the man’s pedophilic behavior seems to result from the compression of his orbitofrontal cortex by the tumor, an interesting set of questions follow....
1) Before the age of brain scans, the man’s tumor would have gone unnoticed and he would have been punished to the full extent. Indeed, it is likely that tumors have gone unnoticed precisely like this. To what extent does the creation of the technology to detect these morally significant tumors create a responsibility to check for them?
2) Dr. Mackintosh pointed out in the podcast that it is important that the tumor could be removed: “if it had not been possible to remove the tumor, then one would, surely, at least consider the argument that he had to be kept in prison for public protection.” If, as Dr Mackintosh’s qualification and hesitation might suggest, this detainment is to some extent objectionable, then to what extent does the detection of a neurobiological factor in criminal behavior create a responsibility to quickly and vigorously search for ways to avoid this preventive detainment (in this case, develop medical techniques to remove the tumor)?
3) If it is likely that there exist other biological mechanisms that have a similar morally significant impact on criminal behavior, and that individuals are currently being locked away in prison without these mechanisms coming to light, then to what extent does this create a responsibility to research into these other biological mechanisms?
December 23, 2011
Tenth Circuit holds that sex offender's run for the border does not preclude registration requirements
The Tenth Circuit has an interesting sex offender opinion today in US v. Murphy, No. 10-4095 (10th Cir. Dec. 23, 2011) (available here), which gets started this way:
The Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. §§ 16911–29, requires a sex offender to register and keep the registration current in each state where he resides, works, or studies. Sex offenders who change their name, residence, employment, or student status, must appear in person in at least one “jurisdiction involved” to inform the state’s authorities of the change. In this appeal we must determine whether a sex offender violates SORNA by abandoning his residence and moving to a foreign country without notifying the authorities of the home state. We conclude he does. For SORNA purposes, a sex offender continues to reside in a state after a change in residence or employment, both of which trigger reporting obligations, even if the offender eventually leaves the state. Therefore, even if an offender abandons his current residence and job with the intention of moving out of the country, he must update his registration to reflect his new status.
Here is the factual back-story that set up this issue for the Tenth Circuit:
Kevin Daniel Murphy is registered as a sex offender in Utah, having been convicted by Utah state courts of aggravated sexual assault and aggravated sexual abuse of a child. Several times since his conviction, he has signed forms acknowledging his duty to notify the authorities upon any change of residence. In 2007, he was paroled from state prison to the Bonneville Community Correction Center in Salt Lake City. While residing at Bonneville, Murphy was allowed to work in the community on the condition of restrictive movement, meaning correctional officers transported him to and from his workplace each day.
Despite these precautions, Murphy fled Bonneville a few months after his arrival. Instead of reporting to his employer, he boarded a bus to California and then took a taxi into Mexico. He ended up in Belize, believing he could escape extradition under that country’s laws. After living in Belize for six months under the name Dan Murray, Murphy was arrested for lacking proper documentation. Belize deported Murphy to the United States, where he was returned to Utah.
Third Circuit holds that only help to prosecutors can influence sentence below mandatory minimum
The Third Circuit handed down a notable sentencing opinion today in US v. Winebarger, No. 11-1905 (3d Cir. Dec. 23, 2011) (available here). Here is how the opinion begins, and a paragraph from the body of the opinion showing why this ruling is not ground-breaking:
In this appeal, we are asked to determine what factors a district court may consider when sentencing a defendant below a statutory minimum term of imprisonment in order to take his assistance to the government into account pursuant to 18 U.S.C. § 3553(e). We hold that a district court cannot use factors unrelated to a defendant's substantial assistance to the government in order to reduce a sentence below the minimum called for under statute. We will therefore vacate the judgment of sentence and remand for resentencing....
We note that every circuit court of appeals to address the issue we face today has held that a court may not use factors unrelated to a defendant's assistance to the government in reducing the defendant's sentence below the statutory minimum.... Today, we join our sister circuit courts of appeals in so holding.
"Are you crying? Are you crying? ... There's no crying in the courtroom!"
With apologies to Tom Hanks, I could not help but think of his best scene in "A League of their Own" when reading this new piece in the New York Times headlined "When Tears Flow in Court, It’s Pass a Tissue and Just Wait for the Agony to End." Here is an excerpt:
Courthouse regulars know the signs: the trembling fingers, the sniffle, the telltale blow of the nose.
Another defendant is sobbing. Whether it is a politician owning up to corruption or a scam artist admitting frittered millions, the weep is a courthouse staple....
Which raises a question: What is the proper response to a courtroom wailer? Look away? Tell him or her to man up?
Defense lawyers, who are usually the ones within tissue-supplying range, say that in court, as in life, there is no easy answer. “You can’t do much about it,” said Ronald P. Fischetti, a defense lawyer who has handled his share of weeping politicians and red-eyed white-collar criminals. “You can put your arm around him,” Mr. Fischetti offered....
Of course, one man’s sincere tear is another man’s sniveling manipulation. So there are many perspectives to any courtroom cry fest. The most important one is likely to be the one from the bench. From up there, the emotion can look intense, said Stephen G. Crane, who was a judge in New York for 27 years. Still, he said he could not recall an instance in which tears changed his mind about how long an offender needed to be sent up the river.
But judges are people too. “You feel embarrassment for the defendant; I did, anyway,” Mr. Crane said. “What goes through your mind is: ‘He feels poorly because he got caught.’ ”...
From the prosecution side of the courtroom, weepers do not typically get much response, given the sphinxlike stare of most prosecutors. It is not that prosecutors fail to notice the waterworks, explained Rita M. Glavin, a white-collar defense lawyer and former Justice Department official. But, Ms. Glavin said, there are times when a prosecutor’s blank face masks disgust for crocodile tears. “The thought going through your mind is: ‘You got to be kidding me,’ ” she said. “But you don’t show it.”
Many lawyers say they would be shocked — shocked — at any suggestion of planned bawling, though some have been known to have had a “to cry or not to cry” conversation with a client. But some lawyers did concede that they were sometimes among the courtroom skeptics. Ira Lee Sorkin, best known for representing Bernard L. Madoff (who, Mr. Sorkin said, did not cry in court), mentioned that it can be uncomfortable to sit next to a client who is a crier. “In some cases,” he said, “your concern is whether he’s faking it.”
Several lawyers expressed disgust at the notion of strategic crying. Thomas C. Green, who has represented members of Congress and other officials in unfortunate circumstances, said such a strategy to win sympathy would lack finesse. “There’s a more elegant way than sobbing in the courtroom,” Mr. Green said.
Alan Vinegrad, a former United States attorney in Brooklyn who is now a defense lawyer, agreed. “Look,” he said, “the bottom line is it has to be genuine. If there’s any hint it’s anything other than completely genuine, it’s probably going to backfire.” But whatever the courtroom vantage point on a crying jag, there was general agreement in interviews this week that sitting through one is a moment when no one is sure what to do.
Sixth Circuit finds no constitutional problems with Ohio's judicial Blakely fix
A helpful reader alterted me to a new Sixth Circuit ruling today in Ruhlman v. Brunsman, 09-4528 (6th Cir. Dec. 23, 2011) (available here), which sorts through a habeas challenge to how Ohio courts dealt with its Blakely issues. Though these two paragraphs from the opinion may only make sense to hard-core Blakely fans, they capture the essence of the ruling:
We disagree and conclude that Ruhlman’s due-process rights were not violated. Foster did not alter the applicable sentencing range for attempted rape, which has consistently been two to eight years. See O.R.C. §§ 2923.02, 2907.02, 2929.14(A)(2). Nor did it alter the elements of the substantive offense of attempted rape. Further, when Ruhlman committed the offense, he was subject to a sentence in excess of two years by virtue of the fact that he had served a prior prison term. See id. § 2929.14(B)(1). In addition, at the time he committed the offense, Ruhlman was on notice that he was subject to a longer sentence contingent upon a trial-court finding that a minimum sentence would demean the seriousness of his conduct or would not adequately protect the public from future crimes, O.R.C. § 2929.14(B)(2), and a maximum eight-year sentence if the sentencing court found him to be a sexual predator who posed the greatest likelihood of recidivism. See id. § 2929.14(C). Therefore, pre-Foster, Ruhlman was on notice that he could receive an eight-year sentence for his actions if the court were to make certain findings. The court made these findings at Ruhlman’s first sentencing and imposed the maximum sentence. The fact that the court imposed that very sentence post-Foster was neither “unexpected [nor] indefensible by reference to the law” that applied when Ruhlman committed his offense. Bouie, 378 U.S. at 354 (citation omitted).
The Ohio Supreme Court’s determination that the relevant portions of Ohio’s statutory sentencing scheme violated Blakely and its decision to sever those portions does not in and of itself implicate ex-post-facto-type due-process rights. The court simply acknowledged that if a fact is necessary to support a particular sentence, that fact must be found by the jury, rather than a judge. The court remedied the problem by following Booker and severing and striking the provisions, with the result that any sentence within the range specified by statute for the offense could be imposed by the court if consistent with the remaining sentencing criteria. Defendants committing crimes before Foster cannot claim that they have an ex-post-facto-type due-process right to have sentencing elements found by a jury, because the unconstitutionality of the sentencing scheme does not negate its existence.
December 22, 2011
Latest OSJCL issue focused on mass incarceration
I am very pleased to report that the Fall 2011 issue of the Ohio State Journal of Criminal Law is now fully available on-line. There are an especially large number of terrific pieces in this issue, starting with this great group of pieces in the symposium titled "Mass Incarceration: Causes, Consequences, and Exit Strategies":
Carol Steiker, Introduction, 9 Ohio St. J. Crim. L. 1 (2011).
Michelle Alexander, The New Jim Crow, 9 Ohio St. J. Crim. L. 7 (2011).
David Cole, Turning the Corner on Mass Incarceration? , 9 Ohio St. J. Crim. L. 27 (2011).
Bernard E. Harcourt, Reducing Mass Incarceration: Lessons from the Deinstitutionalization of Mental Hospitals in the 1960s, 9 Ohio St. J. Crim. L. 53 (2011).
Mark A. R. Kleiman and Kelsey R. Hollander, Reducing Crime by Shrinking the Prison Headcount, 9 Ohio St. J. Crim. L. 89 (2011).
Louis Michael Seidman, Hyper-Incarceration and Strategies of Disruption: Is There a Way Out?, 9 Ohio St. J. Crim. L. 109 (2011).
Andrew E. Taslitz, The Criminal Republic: Democratic Breakdown as a Cause of Mass Incarceration, 9 Ohio St. J. Crim. L. 133 (2011).
December 21, 2011
Important (not-quite-circuit splitting) Seventh Circuit habeas ruling corrects too-long federal sentence
The Seventh Circuit has an interesting and important habeas ruling today in Narvaez v. USA, No. 09-2919 (7th Cir. Dec. 21, 2011) (available here). The start of the opinion and the final footnote highlights just some of the reasons this ruling is notable:
In 2003, Luis Narvaez pleaded guilty to bank robbery, a violation of 18 U.S.C. § 2113(a). The district court sentenced Mr. Narvaez as a career offender under the United States Sentencing Guidelines § 4B1.1 because his record revealed two prior escape convictions involving failure to return to confinement, violations of Wisconsin Statute section 946.42(3)(a). Mr. Narvaez later filed a motion to vacate his sentence under 28 U.S.C. § 2255(a); he asserted that imposition of the career offender status was illegal in light of the Supreme Court’s decisions in Begay v. United States, 553 U.S. 137 (2008), and Chambers v. United States, 555 U.S. 122, 129 S. Ct. 687 (2009). The district court denied Mr. Narvaez’s motion; it ruled that Begay and Chambers did not apply retroactively to cases on collateral review. The court then granted him a certificate of appealability. We conclude that Begay and Chambersapply retroactively to Mr. Narvaez’s case. Because Mr. Narvaez’s career offender sentence was improper, his period of incarceration exceeds that permitted by law and constitutes a miscarriage of justice. He is therefore entitled to relief under § 2255. Accordingly, we reverse the judgment of the district court and remand for resentencing without imposition of the career offender status....
The Government invites our attention to the Eleventh Circuit’s recent decision in Gilbert v. United States, 640 F.3d 1293 (11th Cir. 2011) (en banc), No. 11-6053 (U.S. Aug. 17, 2011). The Eleventh Circuit in Gilbert, however, explicitly did not address the issue in this case, namely whether a guidelines misapplication claim based on a new Supreme Court rule is cognizable in an initial collateral attack. The Eleventh Circuit concluded that it had “no reason to decide that issue because this is not [the defendant]’s first collateral attack on his sentence.” Id. at 1306.
The Government also invites our attention to the recent decision in Sun Bear v. United States, 644 F.3d 700 (8th Cir. 2011) (en banc). Unlike the defendant in Sun Bear, Mr. Narvaez’s sentence was not within the sentencing range had the career offender status not been applied. Nevertheless, to the extent a tension between this opinion and the Eighth Circuit’s reasoning in Sun Bear exists, we respectfully disagree with our colleagues on the Eighth Circuit.
Stiff sentence given to Cameron Douglas for drug possession while in prison
Lindsay Lohan's trouble with the law is small potatoes compared to what going on with Cameron Douglas as reported in this new Reuters piece:
The son of Oscar-winning actor Michael Douglas was sentenced on Wednesday to an additional 4 and a half years in prison for taking drugs while jailed on separate offenses of possessing and dealing narcotics.
Cameron Douglas, 33, who has long struggled with drug abuse, will begin serving that sentence only after he completes his current, five-year prison term he began in April 2010 for possessing heroin and dealing large amounts of methamphetamine and cocaine out of a New York hotel room.
Manhattan federal court Judge Richard Berman [no relation to this blog's author] handed down a stiff sentence that was more than double what prosecutors sought, despite a tearful and contrite Douglas asking the judge to consider his crime a consequence of drug addiction he has been unable to shake. "You see your honor, I cannot seem to find comfort in my own skin," Cameron said before sentence was imposed.
In October, Douglas pleaded guilty to possessing illegal drugs while detained in a federal prison -- a crime considered more serious when the defendant already is a federal inmate. Douglas was caught after a prison official noticed his cell window had been covered up. He was found with a pill and a piece of paper which he later admitted had contained heroin.
"I don't believe that I have had another case ever ... of a defendant who has so recklessly, and flagrantly and wantonly, and criminally acted in as destructive and manipulative a fashion as Cameron Douglas has," Berman said.
The judge said Douglas did not deserve any leniency for admitting to taking the drugs because he lied to investigators when they asked where he obtained them. A witness later told prison officials he delivered the drugs to Douglas.
In handing a heavier sentence than the 12 to 18 months the government had requested, the judge said a pattern of "reckless, disruptive and non-compliant" behavior by Douglas since his arrest in 2009 needed harsher punishment. In one instance, Douglas convinced a defense attorney to smuggle prescription drugs for him in her bra when she visited him in prison, the judge said....
At the time of his 2009 arrest, Douglas agreed to cooperate with agents of the U.S. Drug Enforcement Administration who are pursuing other cases. He recently testified in the Manhattan federal court trial of one of his drug suppliers.
Though I have not followed this case closely, I cannot quite understand what is going to be achieved or even what vision of retributive justice appears is served by having the feds confine and care for Cameron Douglas for essentially the next decade. It is not clear that Douglas poses much of a threat to anyone other than himself. When the judge here calls Douglas "destructive," what exactly is Douglas thought to be destroying other than his own life by feeding his drug addictions even while imprisoned?
Cameron Douglas would seem to be Exhibit A for why a public health approach rather than a criminal justice response to drug offending by addicts would likely be more effective and much more economical. But perhaps my disaffinity for the drug war colors my views here. Consequently, I am wondering if anyone can explain in the comments why having Cameron Douglas in a federal prison cell for the next decade (at federal taxpayers' expense) is likely to better serve our society's interests than if Cameron Douglas were, say, forced to spend the next few years at a private drug addiction facility (at the Douglas family's expense).
First Circuit to review en banc RI Governor's refusal to let feds have murderer for capital prosecution
A helpful reader altered me to this news report that the "full 1st U.S. Circuit Court of Appeals will consider whether Governor Chafee has the right to refuse to surrender an accused murderer to federal authorities." Here is more:
The majority of the Boston-based appeals court on Wednesday voted to consider the case of Jason Wayne Pleau, the career criminal who authorities say shot and killed a gas station manager about to make a deposit at a Woonsocket bank in September 2010. The hearing is April 4.
A three-judge appeals panel in a split decision in October upheld Chafee's authority to refuse to turn over Pleau to face federal prosecution. The governor has based his refusal on what he calls the state's longstanding opposition to the death penalty. Pleau, the alleged shooter, could face the death penalty under federal law.
Related prior posts:
- To resist capital prosecution, RI's Gov refusing to turn murderer over to feds
- Debate continues over whether RI will turn murderer over to feds
- Split First Circuit says state can refuse to turn over murderer to feds for capital prosecution
Heated debate continues in NC over state's Racial Justice Act
This local article, headlined "Resignation follows Perdue's veto: Lincoln, Cleveland counties DA leaves Governor's Crime Commission in protest," reports on the latest developments in North Carolina concerning the state's controversial and consequential Racial Justice Act. Here are excerpts:
District Attorney Rick Shaffer said he meant no disrespect to Gov. Bev Perdue when he recently sent a blistering letter resigning from the Governor's Crime Commission in protest over Perdue's veto of the bill that essentially repeals the Racial Justice Act.
But he knew it was strongly worded and he had no regrets. "It warranted a forceful explanation," said Shaffer, Democratic prosecutor for Cleveland and Lincoln counties. "This is an important issue. It was important for the governor to realize this side of the coin and the individuals involved in the criminal justice system daily trying to make the right decisions."
In the letter Shaffer sent Perdue on Dec. 15, he wrote: "You no longer have any moral authority to suggest that you strongly support the death penalty. Your action has shown that particular statement is untrue."
The (Raleigh) News & Observer reported that Perdue on Tuesday called the General Assembly back into session after the holidays to consider whether to override or let stand her veto of the bill gutting the Racial Justice Act.... The state Constitution requires that she reconvene the General Assembly to consider any vetoes that are issued while the body is out of session.
The Senate would have to take up the consideration first, since the bill originated in that chamber, and it intends to do so, according to Senate President Pro Tem Phil Berger's office. Republicans have enough votes there to override the veto. But it is highly unlikely that the House has the necessary three-fifths majority to overcome the veto....
Emotions over the issue are running high. "When I went to Raleigh in support of the legislation which would have amended the Racial Justice Act, it was with great sadness that I listened to the victims' families describe the facts and circumstances under which their loved ones were brutally murdered," Shaffer wrote in his letter to the governor.
"Some of the cases involved white victims who were killed by white defendants convicted and sentenced to death by predominantly white juries. One of the cases involved a black victim who was killed by a black defendant. At least one case involved the brutal killing of a police officer who died begging for his life. There is no reasonable person who can argue that the judgments entered in these cases were the result of racial discrimination. By your decision, you have at a minimum further delayed the victims' right to justice. If the worst case scenario takes place you will have helped unleash violent murderers back into society."
Shaffer was one of 44 members of the Governor's Crime Commission, which influences criminal justice grant funding in the state. It includes the heads of statewide criminal justice and human services agencies, and representatives of law enforcement, the courts, the legislature and the public....
Shaffer noted in his letter to the governor that while his district has no pending claims under the Racial Justice Act, "the impact of the law as it currently stands is tremendous and devastating." He wrote that the state Administrative Office of the Courts is helping to pay for statistical experts to help defendants with their claims, while that money should be going to help pay salaries for prosecutors across the state.
Shaffer wrote that state budget cuts have affected his office and that he had to fire two longtime, productive employees and can't give valued employees raises. "Why is this the case?" he asked. "In part because we are spending tens if not hundreds of thousands of dollars on statistical experts to help overturn death verdicts in cases where there is no question of guilt and no evidence of discrimination in the particular case in question."
Some older and newer related posts on the North Carolina Racial Justice Act:
- Robust legislative debate over NC Racial Justice Act
- NC Racial Justice Act going to governor's desk
- NC Gov signs new racial justice act concerning capital prosecutions
- Will NC's new Racial Justice Act effectively kill the state's death penalty?
- New research suggests race of victim impacts NC death penalty administration
- NC defender officer urging that racial bias claims be brought in every capital case
- NC prosecutors bring complaints about state's Racial Justice Act to court
- State judge refuses to overturn Racial Justice Act in North Carolina
- Upcoming MSU symposium to examine North Carolina Racial Justice Act
- Talk of profound changes to North Carolina's potent Racial Justice Act
- North Carolina DAs urge state legislature to repeal Racial Justice Act
- Will NC legislature soon repeal its groundbreaking Racial Justice Act?
- Veto debate follows NC legislature's vote to repeal state's capital Racial Justice Act
- NC Governor vetoes bill to repeal state's Racial Justice Act
Press reports on pot proposition progress in California and Washington
This morning's news wire has these two pieces suggesting progress on efforts to have marijuana initiatives on the ballot in two states:
From California here, "CA medical marijuana backers ready ballot measure."
- From Washington here, "Marijuana legalization initiative to turn signatures next week"
I believe Colorado and perhaps a few other western states are likely to have a major pot proposition on the ballot in 2012, and how these initiative far will be a huge story in the enduring debate on not just the drug war, but the balance of federal and state powers in drug policy and criminal justice enforcement.
"California Prisons Can’t Afford Costly Three Strikes Law"
The title of this post is the headline of this editorial from the Bloomberg editorial board. Here is how it begins:
The costly mess that is the California prison system has produced inmate strikes, violence and a Supreme Court ruling that its teeming institutions are unconstitutional. Now it may produce a welcome byproduct: justice.
Last week, the state gave the go-ahead to a proposed ballot initiative to modify California’s “three strikes” law, enabling backers of the initiative to begin gathering the signatures necessary to put it to a vote. Approved by voters in 1994 after the kidnapping and murder of 12-year-old Polly Klaas by a career criminal, the law reflected the public’s frustration with pervasive and seemingly ever-more-violent crime.
Two dozen other states adopted three-strikes laws as well, but none is as indiscriminately punitive as California’s, which allows any felony to qualify as a third strike. The state has imposed sentences of 25 years to life for third strikes such as shoplifting a pair of socks and prying open the door to a church food pantry.
Many of the more than 8,000 prisoners serving third-strike sentences in California are hardened, violent criminals who have earned lengthy terms, or life, behind bars. Their sentences would not be shortened by the ballot initiative. But more than 3,600 third-strikers have committed crimes that were neither violent nor serious. In addition, local prosecutors and judges exercise broad discretion on third-strike sentencing, producing vast disparities among the state’s counties.
The original three-strikes law was written too broadly to provide just punishment in the thousands of circumstances it covers. With the state buckling under the strain of chronic budget deficits and a sagging economy, it is now too expensive to maintain. According to the state auditor, the cost of imprisoning nonviolent three-strikes offenders for 25 years is $4.8 billion. (California will spend roughly $10 billion on prisons this year -- more than it spends on its once-renowned higher education system.) Backers of the initiative say it will save at least tens of millions of dollars a year.
December 20, 2011
Split Sixth Circuit panel spars over federal child porn sentencing as it affirms within-guideline sentence
Anyone who follows federal child porn sentencing decisions and trends will want to be sure to check out a split opinion handed down today by the Sixth Circuit in US v. Overmyer, No. 10-1716 (6th Cir. Dec. 20, 2011) (available here). The majority opinion authored by Judge Sutton includes these passages, which help explain the issue and the panel's holding:
Leonard Overmyer pled guilty to transporting child pornography and received an 87-month prison sentence. The district court addressed all of Overmyer’s arguments for a lower sentence and reasonably imposed a bottom-of-the-guidelines sentence. We affirm....
Overmyer moved for a downward variance, requesting a sentence near the statutory minimum on three grounds: he sought therapy on his own initiative; he expressed remorse for his actions; and he suffered from depression over the impact of the crime on his family. The court imposed an 87-month sentence, explaining that it agreed with the severity of the child-pornography sentencing guidelines — “that the guidelines themselves measure the appropriate harms” — and that it would not exercise its authority to vary downward based on a policy disagreement with them....
The parties do not dispute the applicable guidelines range, and the district court adequately addressed each of Overmyer’s arguments for a variance. The judge “recognize[d] that . . . [Overmyer’s] nuclear family has been shattered. . . . [and took] into account the fact that [Overmyer] now . . . understands the victimization of young children who are depicted in these images.” R.39 at 13. He also “fully underst[oo]d” that “Mr. Overmyer has lost his livelihood and his nuclear family,” but said that in his “judgment that merits a sentence at the lowest end of the advisory guideline range,” R.39 at 16, not a sentence below the range. The court addressed each of Overmyer’s arguments for a below-guidelines sentence, leaving nothing procedurally awry about the sentence....
Overmyer next raises a substantive-reasonableness objection — that his sentence is too long. A within-guidelines sentences is presumptively reasonable, Vonner, 516 F.3d at 389, and Overmyer points to nothing to displace the presumption. He claims that a shorter sentence is in order because he sought counseling on his own after the arrest and because he was unusually despondent over the collateral effects of his conduct. Although these considerations might support a lower sentence, they do not compel one, and that is all we have license to consider....
In the aftermath of United States v. Booker, 543 U.S. 220 (2005), Rita v. United States, 551 U.S. 338 (2007), and Kimbrough v. United States, 552 U.S. 85 (2007), it is trial judges, not appellate judges, who have considerable discretion in applying the § 3553(a) factors to an individual. Whether in a given case a district court agrees with the guidelines recommendation, varies downward from the guidelines range or varies upward from the range, we defer to their sentencing decisions unless those decisions are unreasonable. It follows that, while our colleague is correct that appellate judges may disagree with the sentencing judge about the appropriateness of a given sentence in a given case, mere disagreement is not by itself sufficient to warrant reversal. Something more — a disagreement that establishes the unreasonableness of the sentence — must be present....
Overmyer received and possessed at least 90 images (89 more than necessary for the imposition of the five-year minimum), including images that are more sadistic than the “ordinary” child pornography sufficient to trigger the mandatory minimum. He persisted in his criminal conduct even after it cost him his job, and he lied to investigators when they came looking for evidence of the crimes. Nor does anything in the record show that Overmyer is fully rehabilitated; it shows only that he sought treatment and made commendable progress in addressing his addiction. Whatever we might have done in sentencing Overmyer, it is difficult to say that the district court acted unreasonably in sentencing him to more than the statutory minimum.
The dissenting opinion authored by Judge Merritt includes these passages, which help explain his concerns with the panel's holding:
The problem in this pornography case is the gross disparity, inequality, and unfairness that exists in sentencing generally, but even more so in these child pornography viewer cases. It illustrates the continued sad dependence of federal judges on a harsh sentencing grid created by a distant bureaucracy....
Here the defendant also asserts that “a sentence in the 60 month range would be sufficient but not greater than necessary to punish him for his offense behavior.” (Appellant brief, p. 9.) My colleagues do not even discuss, much less take seriously, the parsimony provision....
As an appellate judge required by law to review and consider the sentence in this case, I assume I am permitted to disagree respectfully with the sentencing judge about the fairness of the guidelines policy and its application in this case. Like the judges in [the Third Circuit case of US v.] Grober, I would limit the sentence in such cases to the mandatory minimum of 5 years, as requested by defendant.... The Guidelines in this case, as in many cases, are too harsh, here “unconscionably” harsh, as the Third Circuit says.... In the end it is still supposed to be the Article III sentencing judges at the trial and appellate levels who are responsible for the sentence imposed, even though the grid system has given the prosecutor, a party to the case, a dominant role, as the Third Circuit district and appellate judges discussed in Grober.
My colleagues’ response to this line of argument is that it is irrelevant and unworthy of serious consideration: They say clearly that if a district court and the grid system are together on a sentence within the grid, a reviewing judge has no business interfering. Presumably, that is the reason my colleagues refuse to discuss the harshness of the sentence, the addictive and nonviolent nature of the crime, the parsimony provision of the Sentencing Act or the validity of the grid policy that the district judge discusses and accepts. No effort is made to rebut the views expressed in the Grober case or in the many opinions and articles discussed there which strongly disagree with the guideline policy, and no effort is made to discuss the elemental fact that most of the guidelines enhancements are inherent in the crime itself for which Congress established a mandatory minimum of five years. The only argument that persuades my colleagues is that the district court and the grid are in agreement. When that is the case, the policy and the sentence must be right and no further analysis or commentary is needed. The grid becomes a biblical command for the reviewing judges. I do not agree.
In part because I played a role as an expert witness in the Grober case (which itself gets a mention in the dissent), I am disinclined to weigh in concerning the child porn sentencing substance of this Sixth Circuit panel dispute. I am, however, inclined to assert that the true essence of the dispute in Overmyer is ultimately more about the nature and direction of substantive reasonableness review than about federal child porn sentencing.
New York Times makes room for three interesting debates
A helpful reader alerted me that the New York Times via its "Room for Debate" series has prompted discussion on these three topics that all should be of great interest to SL&P readers:
"Should Teenagers Get High Instead of Drunk?": Cocaine, tobacco and alcohol use are waning, just as a record proportion of high schoolers use marijuana on a near daily basis. Is that progress?
"Are Presidential Pardons Fair?": Some critics consider the selection process too subjective and opaque. How should presidents decide whom to pardon?
"Rethinking How the Law Is Taught": Does the Socratic method still have a role in law school?
I hope to find time in the days ahead to review all the commentaries that the NY Times has assembled on these topics, and I will aspire to highlight and highlights. Readers are encouraged, of course, to do the same via the comments to this post.
Maryland Governor talking about using budget tricks to thwart state's death penalty
This new Washington Post piece, headlined "O’Malley weighs budget restriction on death penalty," has me scratching my head about how Maryland's Governor tries to give expression to this opposition to the death penalty. Here are the basics of this latest story:
Maryland Gov. Martin O’Malley (D), a long-time death penalty opponent, in recent months has considered using the state budget to block executions in the coming fiscal year. The “idea of defunding executions” was discussed in a July meeting that included O’Malley and Del. Samuel I. Rosenberg (D-Baltimore), a leading death penalty foe in the legislature, according to O’Malley’s scheduling records.
In an interview, Rosenberg confirmed the meeting took place and said he and the governor had a “positive discussion” about the concept, which would apparently prevent the state from carrying out executions due to budget restrictions.
Rosenberg said O’Malley made no commitments at the time, and on Monday night, an O’Malley aide said the the governor remains unconvinced he should take that approach. “It’s not likely that the governor will do that, but no final decision has been made,” said O’Malley spokeswoman Raquel Guillory.
O’Malley, who must present a budget proposal to the General Assembly next month, unsuccessfully lobbied the legislature to repeal the death penalty during his first term. In 2009, lawmakers instead passed a bill tightening evidentiary standards in capital cases.
House Minority Leader Anthony J. O’Donnell (R-Calvert) said a budget provision on the death penalty would be unacceptable. O’Donnell compared the idea to efforts in Congress to undermine President Obama’s health care law by refusing to fund its key provisions. O’Donnell said he couldn’t imagine O’Malley would approve of such a tactic in Congress and should only pursue straight-up measures to alter the state’s death penalty law.
Maryland has had a de facto moratorium on executions since shortly before O’Malley took office in 2007, and it is unclear how much longer it might continue. In late 2006, Maryland’s highest court ruled that the state’s procedures for lethal injections had not been properly adopted and halted scheduled executions. Efforts since then by the O’Malley administration to craft new rules have been delayed several times....
Rosenberg and other death-penalty opponents are planning another push for repeal in the coming session, but they could be short of the votes needed in a key Senate committee to advance the measure to the full body. This year’s bill is expected to include funding for the families of murder victims.
A budget provision would not be subject to the scrutiny of the same Senate committee skeptical of the repeal legislation.
I find this story a head-scratcher because I believe that the Governor in Maryland has broad clemency authority, and thus I have never understood why Gov. O’Malley does not give expression to his capital punishment opposition by commuting to life the death sentences of the five murderers on the state's death row. Trying to thwart the death penalty by using legislative tricks like defunding executions (and/or engaging in foot-dragging on the developing a new lethal injection protocol) seems far less honest and consistent with the rule of law than simply using his clemency power and then explaining to the citizens of the state and other interested persons his reasons for exercising this power.
Perhaps I am wrong about the clemency authority held by the Governor in Maryland or perhaps there are some other legitimate legal reasons why Gov. O’Malley cannot or should not give expression to his capital punishment opposition by commuting all death sentences. On the surface, however, it seems like Gov. O’Malley is looking for a low-profile, back-door way to achieve something he apparently is unwilling to do in a high-profile direct way because of the potential political fall out. If this is what is going on, it is disappointing to learn that the governor not only lacks the courage of his anti-death-penalty convictions, but also that he is willing to seek a coward's route to still trying to get his way.
Sixth and Eighth Amendment cases as notable amuse-bouche for SCOTUS health care litigation
As reported here at SCOTUSblog, the Supreme Court has released its oral arguments calendars for its February and March sittings. Not surprisingly, the legal media is mostly talking about the court's decision to set arguments on the new federal health care law for all its sessions in the week of March 26. And, also not surprisingly, I find interesting the fact that the Court has scheduled for oral argument its Sixth Amendment Apprendi fines case (Southern Union Co.) and its two Eighth Amendment juve LWOP cases (Miller and Jackson) in the week just prior to the health care litigation.
As the title to this post suggests, I thin these constitutional criminal law and procedure cases will provide a notable tingler for the constitutional taste buds to prepare the Justices for the health care fight to follow. In Southern Union Co., the federal government will be urging the Justices not to read the Constitution to place any more procedural burdens on its efforts to impose criminal fines, and in Miller and Jackson, two states will be urging the Justices not to read the Constitution to place any more substantive limits on what punishments they can impose on juveniles convicted of murder. In these cases, some of the more conservative Justices will surely be sympathetic to assertions that an unelected judiciary should not find new constitutional problems with duly enacted criminal laws.
But, of course, the script will be (somewhat) flipped the following week with the health care litigation. The feds, of course, will still be defending federal law against constitutional attack. But now state will be urging an unelected judiciary should to find constitutional problems with duly enacted civil laws. And, so the thinking goes, now the more conservative Justices seem likely to be sympathetic to assertions that these duly enacted laws go to far.
December 20, 2011 in Blakely in the Supreme Court, Jackson and Miller Eighth Amendment cases, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
"Sentencing Proportionality in the States"
The title of this post is the title of this notable student note now available via SSRN by Gregory Schneider. Here is the abstract:
It seems axiomatic in a “society of laws and not of men” that a sentence ought to be generally proportioned in degree to the underlying criminal offense. Extreme sentences, when they appear disproportionate to the underlying offense, undermine public confidence in the justice system, are ineffectual as deterrents to an angry public who perceive them as unjust, and are not useful in reforming the criminal who can see no fairness in such an extreme sentence. This Note explores the principles and analytical tools several states’ judiciaries have expounded to analyze the proportionality of sentences, and concludes that these states have formulated a coherent and workable system of review that other jurisdictions can take advantage of by either legislative or judicial action.
December 19, 2011
Amazingly great new FBI data: crime down yet again in start of 2011!
This AP story reports on great holiday season news concerning crime rates in the United States for the start of 2011: "The FBI said Monday that violent and property crimes reported to police continue to drop despite tough economic times." Here is more:
"An FBI report states that violent crimes reported in the first half of 2011 were down 6.4 percent compared to the first six months of 2010. The number of property crimes, including burglary, larceny and vehicle theft, decreased 3.7 percent.
"All four offenses in the violent crime category — murder and non-negligent homicide, forcible rape, robbery, and aggravated assault — decreased between the first half of 2010 and 2011. Robbery experienced the biggest drop of 7.7 percent."
The full FBI crime report discussed in this article is available at this link, and that webpages is also the source for the graphic reprinted here.
What makes this news so amazing as well as great is that (1) crime rates were already at historic modern lows and there is good reason to worry that eventually crime rates will start moving up again, (2) incarceration rates likely declined in the first part of 2011 because many states were releasing prisoners and/or changing sentencing laws in order to cut their corrections spending, and (3) marijuana use by both teenagers and adults likely continued to rise during this period. I will not claim that these data show or even remotely suggests that reducing incarceration rates and increasing pot use actually reduces serious crime, but I will claim that these data undercut assertions that reducing incarceration rates and increasing pot use will result in an increase in serious crime.
Attorney General Holder released this official statement reacting to the FBI report, which (in)appropriately(?) takes credit for this amazing great news:
“Safe neighborhoods are the underpinning of our nation’s prosperity, and this Department of Justice has made protecting the American people from violent crime a top priority. The results of the 2011 Preliminary Uniform Crime Report show that the decline in violent crime in recent years continued in the first half of 2011.
“Working with our state, local and tribal partners, federal prosecutors and agents have increased community participation in our shared efforts to hold accountable those whose illegal activity spread fear into our communities. We have targeted violent criminals involved in gang-related activity from Florida to California, organized crime networks in cities across this country and drug trafficking organizations that extend beyond our borders."
We could (and perhaps should) have a huge debate over whether and how much credit the Obama/Holder administration merits for the continued decline in crime rates over the past few years. But this amazingly great news on national crimes rates confirm my view that calls from many on the right for AG Holder to resign are just a story about electoral politics and have nothing to do with effective criminal justice policies.
Some related posts on the great modern crime decline:
- Still more great news and data on the latest crime rates in the United States
- Remarkable drop in US violent crimes rates in 2010 according to latest BJS data
- Wonderfully puzzling violent crime rate continue to decline (despite NFL lockout)
- Some speculations about the great crime decline in Florida
- Despite death penalty's practical demise and a prisoner release order, California crime hit record low in 2010
- "Punishment Politics: Gubernatorial Rhetoric, Political Conflict, and the Instrumental Explanation of Mass Incarceration in the American States"