February 19, 2011
Great new article "celebrating" a quarter century of federal sentencing under the SRA
Inspired in part by my recent (serious!?!) post suggesting we ought to consider how IBM's Watson computer could aid sentencing decision-making, a couple of helpful readers pointed out this new article by J.C. Oleson in the University of Richmond Law Review titled "Blowing Out All the Candles: A Few Thoughts on the Twenty-Fifth Birthday of the Sentencing Reform Act of 1984."
There are many aspect of this piece that make in a must-read this long weekend (even though there is something a bit mathematically peculiar about celebrating the 25th birthday of the SRA in 2011). In light of my Watson post, I especially liked the passage spotlighting that "sociologist Max Weber imagined a kind of sentencing computer that would collect relevant facts and dispense a just sentence," and that "Marvin Frankel, the patron saint of sentencing guidelines, acknowledged that computers could be useful in bringing parity and fairness to sentencing." The piece also includes these concluding thoughts:
Instead of basing federal sentences on political intuitions, the Commission could provide sentencing judges with meaningful data about which available sentences are most effective in reducing recidivism. Improvements in risk assessment and technology have made it possible for the Commission to provide judges with data that were scarcely imaginable twenty-five years ago.
Even five years ago, given the acrimonious climate between Congress and the courts, it was difficult to envision a system of this kind. But much has changed. Given the Feeney Amendment, Booker and its progeny, and a growing interest in evidence-based policy, an actuarial sentencing information system is not only intellectually conceivable, but socially and politically viable.
So that, Sara, is my wish for your birthday: an actuarial sentencing information system that allows federal judges to impose data-driven sentences that are effective, efficient, and fair. It is something that, at twenty-five, you might become.
February 19, 2011 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack
Upcoming MSU symposium to examine North Carolina Racial Justice Act
As detailed here, in early April 2011 the Michigan State University College of Law is having a symposium entitled "Moving Beyond 'Racial Blindsight'? The Influence of Social Science Evidence after the North Carolina Racial Justice Act." This webpage includes an introduction and an invitation for this upcoming event:
The North Carolina Racial Justice Act of 2009 (RJA) broke new ground in its recognition of the role that social science research can play in identifying racial discrimination in the criminal justice system.
The RJA expressly authorizes a claimant to rely on statistical evidence of race of defendant discrimination, race of victim discrimination, or racial discrimination in jury selection. This directly confronts the legacy of McCleskey v. Kemp(1987), which foreclosed the possibility of meaningful analysis of the role of race in death penalty systems by denying claimants the possibility of bringing claims based on social science research. McCleskey left defendants in search of the ever-elusive smoking gun....
By allowing capital defendants to assert race discrimination through statistical evidence encompassing more than a single defendant’s case, the North Carolina legislature demonstrated a willingness to move beyond the McCleskey straightjacket when addressing claims of race discrimination. This symposium addresses not only the implication of such a remarkable shift for the death penalty in North Carolina, but also the possibility that the RJA heralds a new openness to the use of social science research to inform questions obscured through exclusive reliance on direct evidence.
The exact contours of the symposium are still taking shape. We are delighted to have confirmed participation from a number of scholars already, including David Baldus, Jeffrey Fagan, Sam Gross, and Michael Radelet. If you have work that would contribute to this discussion, please consider participating.
Some 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
Florida still dealing with the fall-out and challenges of Graham
This local article, headlined "After U.S. Supreme Court ruling, local juveniles seek to have sentences thrown out," spotlights some of the issues that Florida continues to confront as a consequence of the Supreme Court's Eighth Amendment decision last year in Graham. Here are excerpts:
Nine months after the U.S. Supreme Court ruled that juveniles can't be sent to prison for life without parole for crimes other than murder, two convicted rapists will be in Palm Beach County court next week seeking to have their sentences thrown out.
David Slocum and Emmanuel Paul were convicted of raping a 17-year-old student from Switzerland after grabbing her at gunpoint on Flagler Drive in 1994. Because they were 17 when the grisly crime was committed their sentences are no longer valid. Their cases will be considered Wednesday.
Florida leads the nation in the number of youths serving life sentences for non-homicide crimes. Resolving the issue is complex because the Legislature abolished parole in 1983. Identical bills have been filed in the Florida House and Senate to establish parole for juveniles who are sentenced to life in prison for non-homicide crimes. However, it would only impact those sentenced in the future.
Even so, Rep. Michael Weinstein, R-Jacksonville, says he doubts the measure he is sponsoring will pass. Having slammed the door on criminals' hopes for early release, many lawmakers don't want to give anyone — even those sentenced as juveniles — the chance for parole, said Weinstein, a Duval County prosecutor.
To make it more palatable, Weinstein is suggesting that teen criminals serve 25 years before they could be considered for parole. Further, they would be required to have exemplary prison records, completed educational courses and taken other steps to prove they could live outside prison walls. Still, Weinstein said, "I would be surprised if it gets done."
A lawyer who has long fought injustice in the criminal justice system told a group of attorneys and judges in West Palm Beach on Friday that Florida's record is disturbing. A staggering 79 percent of the 77 teen criminals in Florida who are serving life sentences for non-homicide crimes are either black or Latino, attorney Bryan Stevenson told members of the F. Malcolm Cunningham Bar Association.
February 18, 2011
How might IBM's "Watson" do as a sentecing judge (or a law clerk)?
The provocative question in the title of this post is inspired in part by all the discussion of evidence-based sentencing decision-making during the great Toledo sentencing symposium and also by this information technology article headlined "IBM, Nuance to Tune Watson Supercomputer for Use in Health Care." First, here is part of the "Dr. Watson" discussion:
IBM will incorporate Nuance CLU speech-recognition applications into the Watson supercomputer to provide information that assists doctors as they make diagnoses.
IBM will continue its longtime collaboration with speech-recognition software developer Nuance Communications to bring the analytics capabilities of supercomputer Watson into the health care field. Under a research agreement announced Feb. 17, Nuance will feed its CLU (Clinical Language Understanding) applications into IBM's Watson hardware....
Combining the CLU language capabilities of Nuance in a supercomputer such as Watson could lead to the next generation of EHRs (electronic health records) and decision-support applications, according to Dr. Eliot Siegel, director of the Maryland Imaging Research Technologies Laboratory (MIRTL) at the UMD School of Medicine. "We believe that this has the potential to usher in a new era of computer-assisted personalized medicine into health care to improve diagnostic accuracy, efficiency and patient safety," Siegel said in a statement....
The supercomputer will be used to help doctors make diagnoses and analyze a vast amount of health care resources, including EHRs and medical journals, in ways that doctors and nurses may not be able to.
"What it can do much faster than a person is collect that information, analyze it and use it as an additional resource this huge array of health care literature or most-recent journals and provide feedback on that information to the physician," Dr. Marty Cohn, associate director for IBM Healthcare Analytics, told eWEEK.
"Just as Watson collects information and understands the questions on 'Jeopardy' — the subtlety of the puns — it looks at the language, understands what it really means and can bring information from the vast array of health care literature that is relevant to the physician's and patient's joint effort to come up with a proper diagnosis," Cohn said....
With Watson's ability to understand natural language and respond in a humanlike manner, it will be able to understand patients' verbal descriptions of their symptoms, such as chest pains or dropping blood pressure, as well as collect medical data from EHRs, physician notes and family history to help doctors make recommendations on a patients' condition, Cohn explained.
Watson will also prove helpful in spotting potential drug interactions and highlighting missing test results, according to IBM. In addition, the supercomputer can guard against the bias of a particular doctor's past experiences. Information overload from all the resources available contributes to 15 percent of inaccurate diagnoses, according to Harvard Business Review. For Watson, however, the more data it's fed, the smarter it will get, Janet Dillione, Nuance's executive vice president and general manager of health care, told eWEEK....
Watson won't replace doctors, just provide additional relevant information for them to make diagnoses in a timely manner, Cohn stressed. In fact, Watson may not be used in emergency rooms, a setting where time is life or death, he added.
"Watson has the potential to help doctors reduce the time needed to evaluate and determine the correct diagnosis for a patient," Dr. Herbert Chase, professor of Clinical Medicine at Columbia University College of Physicians and Surgeons, said in a statement. Watson could help doctors personalize treatment according to a patient's needs, Chase added.
Though there are, obviously, lots of differences between diagnosing a patient and sentencing a defendant, there are also lots of similarities. Judges considering how to sentence a particular offender who has committed a particular offense — as well as prosecutors, defense attorneys and probation officers considering what sentencing recommendation to put forward — need to collect lots of factual and legal information, need to analyze and assess this data, and need to consider a huge array of sentencing data and criminal justice literature in order to discharge their sentencing responsibilities.
Is it crazy to imagine a "Judge Watson" — or, perhaps more properly, a "Sentencing Law Clerk Watson" — that could and would regularly provide additional relevant information to help make sentencing decisions? Especially as more and more researchers and public policy advocates talk about the importance and value of "evidence-based" sentencing practices, I do not think it is that crazy to imagine cutting-edge computer technologies helping to collect and assess the evidence needed to engage in these practices.
"Prosecutors fear losing death penalty in Illinois"
A fast internet connection and a break in the great Toledo symposium panels provides me with an opportunity to link to this interesting new Chicago Tribune article which shares a headline with the title of this post. Here is an excerpt that really caught my attention:
Across the state, prosecutors fear that with the stroke of a pen Gov. Pat Quinn could make their jobs harder if he agrees to sign a measure that would outlaw the death penalty, sparing the 15 inmates on the state's death row and the defendants who prosecutors want to put there.
As Quinn weighs the matter, saying he wants to "follow my conscience" and consult widely, the states' attorneys say the move would rob them of an important bargaining chip -- the threat of death to get guilty pleas from suspects who opt for life in prison. Take that off the table, they say, and there'll be more trials because defendants facing only the prospect of life behind bars would be less inclined to deal.
"When we go to battle in the most serious, heinous cases, we have to have every weapon available to us," said Thomas Gibbons, the state's attorney in southwestern Illinois' Madison County. "Let's say you're playing cards and you lose your ace -- you're one step behind."
Prosecutors also argue that repealing the death penalty would take away their access to the Capital Litigation Trust Fund, the pool of state money that pays for death penalty trials, likely forcing already cash-strapped counties to absorb the entire cost of murder trials. The money would be used instead for services for families of homicide victims and law enforcement training.
February 17, 2011
In Toledo to talk about Ohio sentencing policies and practices
I am pleased and honored to be in Toledo tonight and tomorrow to participate in a terrific symposium sponsored by the University of Toledo Law Review titled "Ohio’s Sentencing Policies and Practices, Costs and Consequences." This webpage provides some backstory:
Ohio has more than 50,000 inmates confined in more than thirty penal institutions. The average cost per inmate year is more than $25,000. Even in robust economic times asking whether the budgetary impact is bearable would be worthwhile. In times of economic distress and unprecedented scarcity of fiscal resources, it is imperative to ask whether Ohio’s taxpayers can continue indefinitely to bear the costs and consequences of incarceration of so many inmates — especially those who have committed non-violent offenses and are demonstrably low-risk. The 2011 Toledo Law Review Symposium will address this and related questions, including what alternatives may exist to provide safety to Ohio’s citizens while making more resources available for other crucial public needs.
A bunch of folks have worked to put together an amazing program with all sorts of amazing speakers, and I expect to learn a lot throughout the day. Indeed, I have already learned a lot from this terrific and timely sentencing reform resource list assembled by the Toledo folks.
Some recent and older related posts:
- Ohio on path to turning to treatment over prison for non-violent drug offenders
- Incoming Ohio Governor Kasich having to face over-crowded prisons and tight budgets
- "Prison-reform bills would save money, improve public safety"
- ACLU of Ohio produces major report on prison growth and problems
- "Ohio lawmakers mull sweeping reform to cut prison populations"
- An Ohio example of how the prison economy budget can mix up the usual political rhetoric
"The State of Sentencing 2010: Developments in Policy and Practice"
Today, 7.2 million men and women are under correctional supervision. Of this total, five million are monitored in the community on probation or parole and 2.3 million are incarcerated in prisons or jails. As a result the nation maintains the highest rate of incarceration in the world at 743 per 100,000 population.
The scale of the correctional population results from a mix of crime rates and legislative and administrative policies that vary by state. In recent years, lawmakers have struggled to find the resources to maintain state correctional systems; 46 states are facing budget deficits in the current fiscal year, a situation that is likely to continue, according to the National Governors Association. Many states are looking closely at ways to reduce correctional costs as they seek to address limited resources. States like Kansas, Michigan, New Jersey, and New York have successfully reduced their prison populations in recent years in an effort to control costs and effectively manage prison capacity. Overall, prison populations declined in 24 states during 2009, by 48,000 persons, or 0.7 percent.
During 2010, state legislatures in at least 23 states and the District of Columbia adopted 35 criminal justice policies that may contribute to reductions in the prison population and eliminate barriers to reentry while promoting effective approaches to public safety. This report provides an overview of recent policy reforms in the areas of sentencing, probation and parole, drug policy, the prison census count, collateral consequences, and juvenile justice.
Ohio completes long-awaited execution (and the seventh in six different states in 2011)
As detailed in this local article, Ohio got its machinery of death up and running earlier today. Here is the backstory of a particularly notable execution:
When Frank Spisak was going on "hunting parties" targeting blacks in Cleveland, Ronald Reagan was president, a stamp cost 20 cents and the Cincinnati Bengals played in the Super Bowl XVI.
More than 10,000 days later, Spisak, 59, a triple murderer, was executed today at the Southern Ohio Correctional Facility near Lucasville. The time of death was 10:34 a.m. The 27 years between the murders on the Cleveland State University campus in 1982 and Spisak's final punishment was the longest gap in Ohio's 42 executions since 1999....
Spisak, who blamed mental illness for his hatred of gays, blacks and Jews, was the last person in Ohio to be lethally injected with sodium thiopental. The state will no longer use the drug because the sole U.S. manufacturer stopped making it. Beginning with the execution of Johnnie Baston on March 10, the state will use pentobarbital, a fast-acting barbiturate that is more readily available.
Between February and August of 1982, Spisak shot and killed the Rev. Horace Rickerson, 57; Timothy Sheehan, 50; and Brian Warford, 18. He said he was going on "hunting parties" and hoped to spark a race war in Cleveland. He shot Hardaway and shot at but missed a woman on the urban university campus.
Spisak was an admirer of Nazi leader Adolf Hitler. He carried a copy of Mein Kampf and grew a Hitler mustache during his 1983 trial. Spisak suffered from bipolar disorder and had a lifelong struggle over his sexual identity. He referred to himself as Frances and in 1999 sued the state for "keeping her locked up on Death Row in an all-male prison environment where she cannot receive appropriate hormonal and surgical treatment for her physical and mental defects."
Spisak lost all his appeals, including the last one to the U.S. Supreme Court in which he argued that he should not be executed because of Ohio Supreme Court Justice Paul E. Pfeiffer's comments about the unevenness of the death penalty's application.
As the title of this pose is meant to spotlight, I find this latest execution notable in part because it make Ohio the sixth state to conduct an execution in just the first two months of 2011. (This DPIC page provides the basics on this year's executions to date.) It is sometimes easy to believe that the death penalty is on its last legs in the United States and that only Texas keep capital punishment in the headlined. But we have now averaged an execution per week in the United States in first couple months of 2011, and we have done so because five states other than Texas have gotten condemned defendants all the way to the execution chamber.
Timely student note on 11(c)(1)(C) pleas and sentence modifications
Next wednesday, the Supreme Court will hear argument in Freeman v. USconcerning whether a defendant sentenced pursuant to 11(c)(1)(C) plea may be able to get a sentence modification based on new retroactive guidelines. And, just in time for the argument, I see that there is this new student note by Joshua Asher on this topic available via SSRN titled "Unbinding the Bound: Reframing the Availability of Sentence Modifications for Offenders Who Entered into 11(c)(1)(C) Plea Agreements." Here is the abstract:
On March 3, 2008, the United States Sentencing Commission retroactively amended U.S.S.G. § 2D1.1, reducing the base offense level for most crack cocaine offenses. Accordingly, defendants who had been sentenced under the old guidelines could now seek to have their sentences modified under the amended guidelines. In order for a court to even consider granting such a motion, however, defendants must meet the requirements described in 18 U.S.C. § 3582(c)(2), which permits modifications of prison terms “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”
Although the terms of the statute appear straightforward, courts have not always agreed on whether a defendant’s term of imprisonment was based on a guidelines sentencing range. The problem has proved particularly acute in cases involving plea agreements formed pursuant to Rule 11(c)(1)( C) of the Federal Rules of Criminal Procedure. Under this type of agreement, the parties include the proposed sentence in the written plea presented to the judge. Then, if the judge accepts the guilty plea, she may not alter the sentence as she could in cases in which the prosecutor simply recommends a particular sentence to the court. As a result, many courts have denied motions for sentence modifications under the amended crack cocaine guidelines, relying on a per se rule that a district court lacks subject matter jurisdiction to consider a § 3582(c)(2) motion if the sentence was imposed pursuant to a binding plea agreement. These courts hold that the plea agreement, rather than the Guidelines, constituted the basis for the sentence, thus making such defendants ineligible for a reduction.
Contrary to the majority of circuit court precedent, this Note argues that a per se rule denying such motions misinterprets the relevant statute, undervalues the effects the Guidelines had in transferring sentencing discretion away from judges, and undermines Sentencing Commission policies. Finding that courts should not employ a per se denial rule, however, does not mean that any defendant who entered into a binding plea agreement will meet the jurisdictional requirement for a sentence reduction. Rather, district courts should exercise jurisdiction over the § 3582(c)(2) motions of defendants who entered into binding plea agreements only when the Guidelines played a determinative role in the ultimate sentence agreed upon by the parties as evidenced by the plea agreement.
Illinois Attorney General urging Gov Quinn to veto death penalty repeal
I just learned from this report that Illinois' "Democratic Attorney General Lisa Madigan [is] urging Gov. Pat Quinn not to sign a bill on his desk to abolish the death penalty." Here is the start of the letter AG Madigan sent to Gov Quinn last month:
I am writing in response to the request from your office for my views on Senate BiII 3539. I continue to believe that the death penalty is an appropriate and just punishment when a defendant commits multiple murders or murders a victim in a particularly heinous manner or circumstances.
My work as Attorney General for the past eight years has only served to strengthen that view. Our office provides trial assistance to State's Attorneys throughout the state to prosecute murder cases. We have co-prosecuted three of the defendants who are currently sentenced to death, and we are now part of the prosecution teams in two multiple murder cases. Each of these brutal murder cases demonstrates circumstances in which it is appropriate to ask a judge or jury to consider and carefully weigh a sentence of death.
Some recent related posts:
- Illinois state prosecutors lobbying to preserve state's death penalty
- Illinois house in close vote approves death penalty ban
- Possible death penalty repeal in Illinois now in hand of Governor Pat Quinn
- Illinois Gov. Pat Quinn not yet telling (and perhaps not yet sure?) whether he will sign death penalty repeal
- Is there growing momentum behind death penalty repeal efforts?
- "Illinois death penalty decision leaves uncertainty"
- Illinois judge calls Governor Pat Quinn "grossly irresponsible" for dithering on death penalty
February 16, 2011
Should more (and male) inmates be permitted (and even encouraged) to raise babies behind bars?
The provocative question(s) in the title of this post is prompted by this local storyout of Washington, which is headlined "8 babies behind bars at Washington womens prison." Here are the basics that prompt my query:
Right now, at Washington's largest corrections center for women, 871 inmates are serving their sentences. Among them are 8 babies being raised right in the middle of it all. It's a trailblazing program pioneered by Washington and now being adopted in other states. But, is prison a safe place to raise a child?
Little Deegan's hands tell so much about the eight-month old boy. He's playful, curious and always reaching out to his mother Sunny. "We're all in this and it's hard," Sunny Van Cleave explained. "Deegan makes people happy."
Deegan is surrounded every day by everything he needs; he has his books and toys, his mom and the caregivers who love him. But, outside his home at the Washington Corrections Center for Women, razor wire separates Deegan from the reality of where he's been raised since he was born....
"We're promoting a healthy bond between incarcerated women and their children," explained Sonja Alley, who supervises the [Residential Parenting Program]. On the day we visited last week, the RPP housed 10 women and 10 kids, with the youngest child just two weeks old.
Sheri Pam's son Quincey is 20-months old, the oldest in the unit right now. Pam is serving time for Second Degree Robbery; she was six months pregnant when she was sentenced. Like every room in the unit, Pam's room has a bed for her, a bed for Quincey and the toys and books you'd see in any toddler's room. Women here have to meet strict criteria to qualify: they have to be minimum-security offenders, CPS history is considered and mental health is evaluated.
While there are exceptions, the women typically have to be serving a sentence of 30 months or less. It's a short time in prison terms, but a lifetime for these infants and toddlers. The program is designed to keep moms and babies from ever coming back. "Children of incarcerated parents are five to seven times more likely to be incarcerated themselves," Alley explained. "So, we're really trying to break that chain."...
Most women allowed in the program never set foot in prison again. But, what about the kids? It may help the moms to have their babies with them in prison, but is it fair to the kids who have to live here? How do they tell their child years later that they spent their first birthday and had their first steps just yards away from convicted killers?...
The per-inmate cost of the program is the same as other minimum security offenders here -- about $123 a day. DSHS money pays for toys, books and food. It's money the families would qualify for outside of prison, so there's no additional cost to taxpayers. Doctors come in once a month for well-baby checks and vaccinations.
Many of the women say they're receiving care for themselves and their babies they had no idea how to access when their other children were born outside of prison. Like their moms who work or go to school in prison, these babies are busy, too. Every day, they head across the prison yard to a sanctuary. It's the Early Head Start Program, staffed with educational professionals.
As my parentheses are meant to explore, I wonder if this kind of "Residential Parenting Program" might have unique and uniquely important rehabilitative potential for new fathers as well as new mothers. If so, perhaps Washington and other states should consider having this sort of program available in more settings than just their women's prisons.
Georgia's Chief Justice talks up the need for state sentencing reform
As detailed in this local article, "Chief Justice Carol Hunstein says it's time for Georgia to reform its tough criminal sentences." Here's more:
In her annual State of the Judiciary address to a joint session of the state Legislature on Wednesday, Hunstein said many inmates clogging Georgia's prisons "are a greater threat to themselves than to society."
Hunstein said rather than locking up drug addicts and the mentally ill, "we must reserve our prison beds for our most serious criminals." Alternative sentences should be offered to improve public safety and save taxpayer dollars.
And part of the plan afoot appears to involve the creation of something akin to a sentencing reform commission: "Later Wednesday, Hunstein is set to appear with Gov. Nathan Deal to announce plans for a panel that would make recommendations on sentencing changes next year."
Somali pirate gets sentence of nearly 34 years in federal prison
As detailed in this Bloomberg report, "Somali pirate Abduwali Muse was sentenced to 33 years and nine months in prison for hijacking the container ship Maersk Alabama in the Indian Ocean in 2009." Here is more:
U.S. District Judge Loretta Preska in New York handed down the sentence today. Muse pleaded guilty in May to two counts of hijacking maritime vessels, two of kidnapping and two of hostage taking. Prosecutors said he led pirates who captured the Maersk Alabama and held its captain, Richard Phillips, for five days.
The sentence is at the top of a range in an arrangement between Muse’s lawyers and prosecutors. The defense asked for the minimum, 27 years. The government sought the maximum because of what it called the “extraordinarily depraved and violent nature of Muse’s crimes.”
Muse and his companions boarded a ship in the Indian Ocean and took hostages, with Muse threatening to kill everyone aboard with an improvised explosive device if the authorities came, according to prosecutors....
Muse was captured by authorities after the arrival of the USS Bainbridge. Snipers killed his three accomplices, and the Federal Bureau of Investigation brought Muse to New York.
His attorneys, Fiona Doherty and Philip Weinstein, said that their client grew up in poverty in Somalia, where his father sometimes tied him to a tree as punishment. Muse worked in fishing communities in the coastal area known as Puntland, where pirate gangs have their roots, his attorneys said. He was driven to piracy by poverty, they said.
Muse was 16 at the time of the hijacking, his lawyers said, A U.S. magistrate judge rejected the claim that he was underage. Assistant U.S. Attorney Brendan McGuire said last year that he told one of his hostages he was 24.
USSC holds public hearing on its proposed guideline amendment
As detailed in this official notice, today the US Sentencing Commission has been conducted a public hearing "to gather testimony from invited witnesses regarding proposed amendments to the federal sentencing guidelines and issues for comment." Helpfully, this official agenda not only lists the invited witnesses, but also provides links to their written testimony.
For those listening to the federal sentencing AFDA web program today...
apologies for the technical glitch. Apparently, too many people tried to sign on to the program at once, and we managed to crash the Adobe server (which said it could handle 500 folks). I am flattered to discover more than 500 people tried to log-on hear what I had to say with the help of the AFDA, but I am really sorry that we got cut offjust over half-way into the 90 minute program.
Thankfully, the folks at AFDA are going to put this program together again next week so I can finish discussing all topics we had planned to cover. As of this writing, the plan is to try again next week (Wednesday, Feb. 23) at 12noon EST.
February 15, 2011
Full Eleventh Circuit examining Georgia's procedure for capital defendants under Atkins
As detailed in this Atlanta Journal-Constitution article, which is headlined "Court considers death-penalty standard for mental retardation claims," all the judges of the Eleventh Circuit heard argument today on an interesting and important issue of constitutional capital procedure. Here are the details:
Warren Hill sits on Georgia's death row, even though a state court judge has found him mentally retarded, which the nation's highest court says bars him from execution.
Hill's problem is that he was found to be mentally retarded under the lowest legal threshold but not the toughest -- beyond a reasonable doubt. Even though Georgia became the first state in the country over 20 years ago to ban executions of mentally retarded people, it is now the only state that sets the highest barrier for defendants raising such claims to escape execution.
On Tuesday, Hill's lawyer told the federal appeals court in Atlanta that instead of protecting the mentally retarded from execution, Georgia has done just the opposite. By erecting such a stringent burden of proof, inmates who are erroneously found not to be mentally retarded are going to be put to death, Mark Olive said.
The U.S. Supreme Court did not give states "carte blanche authority" to impose barriers that are impossible to clear, he said. During lively arguments in a packed courtroom, a number of judges seemed to agree.
Among states with the death penalty, 22 require defendants raising mental retardation claims to prove it by the lowest threshold, a preponderance of the evidence. Four states have adopted a tougher test, the clear and convincing evidence standard. Three states have not set a burden of proof.
The 11th U.S. Circuit Court of Appeals did not issue an immediate ruling. About 10 Georgia death-row inmates who failed to prove mental retardation beyond a reasonable doubt could receive new hearings if the court finds Georgia's standard unconstitutional....
State attorney Beth Burton refused to concede the possibility that mentally retarded inmates will be executed in Georgia. She told the court that when the U.S. Supreme Court banned the execution of the mentally retarded, it left it up to the states to decide how to evaluate retardation claims.
This prompted questions from judges who wondered whether it would be acceptable if Georgia made it all but impossible for a defendant to prevail in a mental retardation claim. What about a law that says only defendants with IQs below 30 can be found to be mentally retarded, asked Judge Stanley Marcus. An IQ of about 70 is generally considered to be the upper limit for a diagnosis of mental retardation. "I think they could do that," Burton responded.
What if the state required defendants to prove retardation beyond a shadow of a doubt, Judge Charles Wilson asked. Would that make a difference? "I can't say that it would, as crazy as that sounds," Burton replied, noting the U.S. Supreme Court could ultimately overturn such a law. So as long as there is no Supreme Court decision that forbids a certain way of evaluating the claims, Georgia could set the burden so high no one could ever prove they were mentally retarded, Wilson said.
This prompted Judge J.L. Edmondson to wonder what the state planned to do with Hill, noting he had been found to be mentally retarded. "If you get the chance, is Georgia going to execute this man?" he asked. "Yes," Burton replied.
Hill sits on death row for bludgeoning a fellow inmate to death with a nail-studded board in 1990. At the time, he was serving a life sentence for killing his girlfriend.
On appeal, Hill's lawyers claimed he was mentally retarded, but Superior Court Judge John Allen of Columbus found Hill could not prove it beyond a reasonable doubt. After the U.S. Supreme Court banned the execution of the mentally retarded in 2002, Allen reconsidered his initial decision. Allen subsequently found Hill had proven by a preponderance of the evidence -- more likely than not -- that he was mildly mentally retarded. The judge also found the "beyond a reasonable doubt" standard unconstitutional.
The Georgia Supreme Court subsequently overturned Allen in a ruling that was under close scrutiny during Tuesday's arguments.
Washington state bill proposes branding of license plates of drunk drivers
As detailed in this local story, a state legislator in Washington is proposing a vehicular scarlet letter for drunk drivers. Here are the details:
Representative Norma Smith of Clinton wants to require drivers convicted of DUI after 2012 to have a special license plate designated with the letter Z. "It provides a tool for law enforcement… just to be aware that the car is registered to someone with a dui conviction and to provide a little extra scrutiny,” says Smith.
She believes the plates would also serve as an incentive to avoid repeat offenses. Several states like Minnesota have a similar law in place, calling them “whiskey plates.”
But defense attorneys say the bill is a scarlet letter, putting unfair scrutiny for the majority of first time offenders never offend again. "This is a once in a lifetime incident, they have learned a profound and painful lesson already and to stigmatize them further isn't necessary and doesn’t serve any useful purpose,” says attorney Stephen Hayne....
House Bill 1955 has already received support of the Washington Council of Police and Sheriffs.
Prosecutors win one round of the sentencing reform debate in Indiana
This interesting new story from Indiana, headlined "Daniels-backed prison reform is dealt a blow by prosecutors," spotlights how readily a legislature can morph a sentence-reducing reform proposal into a sentence-enhancing reform proposal. Here are the details:
A criminal justice reform bill that Gov. Mitch Daniels hoped would save more than $1 billion by reducing the number of people held in prison is headed to the Senate floor. But the bill, approved 8-2 by a Senate committee Monday, has changed so much because of pressure from prosecutors that it's no longer clear whether it will save any money in the long term.
"We just don't accept the idea that because the Department of Correction has a bed problem that we should be releasing serious felons back on the street," said Sen. Sue Glick, R-LaGrange, a member of the Senate's Corrections, Criminal and Civil Matters Committee. Despite the setback, the governor's office pointed out that Senate Bill 561 could easily change again. Both the full Senate and the House will have opportunities to amend it....
Many of the provisions of the original bill -- aimed at diverting low-level drug offenders to treatment and community corrections -- still remain in some form. But the bill's overhaul is a major victory for prosecutors, who persuaded lawmakers to add a provision ensuring serious violent felons serve at least 85 percent of their sentences. Currently, most offenders have to serve only half their sentences because they earn a day of credit for each day of good behavior....
Prosecutors also headed off an effort in the original bill to reduce the "drug-free zones" -- the 1,000-foot areas around schools, apartment complexes, public parks and housing projects where drug transactions carry an enhanced sentence -- to 200 feet. A study by DePauw University students found that 53 percent of the area inside I-465 is in a drug-free zone. Sometimes, the students found, offenders facing the enhanced charges had been selling drugs in their own apartments with no children present.
Daniels and Chief Justice Randall Shepard had strongly endorsed the reforms, and in his State of the State speech this year, Daniels told lawmakers the package aimed for "smarter" incarceration and urged them to "seize this opportunity." But those savings are called into question by the prosecutors' 85 percent provision, which will force the Department of Correction to house serious felons much longer than the think tanks had anticipated. The researchers' analysis also anticipated that reducing the 1,000-foot drug-free zones would lead to fewer sentence enhancements.
The bill somewhat accomplishes one of its original key goals -- bringing some of Indiana's unusually harsh penalties for low-level offenses more into line with neighboring states. Theft of less than $750 would no longer be a felony; it would be a misdemeanor. Prison time for selling and possessing cocaine and methamphetamine would be shorter. "There's a lot of things in that bill that are good," said Larry Landis, executive director of the Indiana Public Defender Council.
Lawmakers also added an effort to help low-level felons rejoin society, though prosecutors expect to target that provision for elimination. A person convicted of a nonviolent felony crime could petition the court to make that conviction invisible to employers -- though not to police -- after waiting eight years from the end date of their sentence.
New student note on restitution sentences for child porn downloaders
A helpful reader pointed me to this timely new student note by Dennis DiBari titled "Restoring Restitution: The Role of Proximate Causation in Child Pornography Possession Cases Where Restitution is Sought." Here is the abstract:
The issue of causation is the central reason why possession cases are so problematic for many district courts. Unlike cases involving direct abuse or actual production of child pornography, defendants in possession cases usually have had no contact with the victims. The defendants often do not know the victim's true identity. In fact, the victims usually do not know the defendants exist until only after they are alerted by notices from the federal government. The only link defendants have to their victims is, of course, the physical possession of their image. It is difficult for courts to even begin to quantify the amount of harm done to the victim by the defendant's possession of their depiction. In addition, most victims have experienced the trauma of multiple crimes and therefore have different layers of victimization; isolating the damage done by the original abuse, the production, the distribution, and end-use possession has been described as an “evidentiary nightmare.” Simply put, courts are stumbling over causation before they award restitution in possession cases because they are having great difficulty linking the defendant's act to the victim's harm.
This Note will examine the developing split between district courts across the nation over the ordering of restitution in child pornography possession cases. Part I of this Note will provide a brief primer on the developments leading up to the creation of the problem. Part II will provide a comprehensive analysis of how federal courts have been approaching restitution in possession cases, specifically focusing on the role proximate causation plays in a court's final disposition on restitution. Part III will discuss the calculation of restitution awards in possession cases and derivative issues, such as the propriety of using a joint and several liability theory. Part IV will explore the constitutional dimensions of these restitution awards, evaluating the risk of violating the Eighth Amendment's ban on excessive fines. Finally, Part V recommends a principled approach to ordering restitution in possession cases, founded in the underlying concepts of criminal restitution. This Note will conclude that a district court can avoid punishing defendants for harm they did not cause.
"Budget Crunch Forces A New Approach To Prisons"
The title of this post is the headline of this NPR story which rant today and starts this way:
Budget problems are forcing states and the federal government to rethink their approach to prisons. More than 2 million people are incarcerated in the United States, and the cost is getting unbearable.
Even conservatives who describe themselves as tough on crime are starting to call for the release of some inmates. That's in part because the numbers are speaking louder than ever. States spend about $50 billion a year to house prisoners, and experts say incarceration is the fastest-growing expense in state budgets, except for Medicaid.
February 14, 2011
A list of themes for stopping drug war "madness"
Ethan Nadelmann has this notable new essay titled "The Disastrous War on Drugs Turns 40: 5 Ways to Stop the Madness." I am interested in reader reactions to his suggested five key themes stressed at the end of this essay:
Count on five themes to emerge over and over during this anniversary year.
1. Marijuana legalization is no longer a question of whether but when and how....
2. Over-incarceration is the problem, not the solution....
3. The war on drugs is "the new Jim Crow."...
4. Politics must no longer be allowed to trump science -- and compassion, common sense and fiscal prudence -- in dealing with illegal drugs....
5. Legalization has to be on the table.
"Deadly Dilemmas III: Some Kind Words for Preventive Detention"
The title of this post is the title of this notable new paper from Professors Larry Laudan and Ronald Allen, which is now posted on SSRN. Here is the abstract:
This paper explores the role of assessments of dangerousness in the criminal law, arguing that they are ubiquitous not only in setting sentences and guiding bail and parole decisions but, far more importantly, in determining which activities are criminalized and which are not. While many theorists of the criminal law continue to assert that prospective judgments of dangerousness have no legitimate role in the criminal law (since persons are to be punished supposedly only retrospectively for harms already committed), we argue that it is entirely appropriate to punish people for harms that they are likely to commit, provided that pertinent due process demands are satisfied. More generally, we deny both the existence and the desirability of a sharp distinction between the aims of criminal law and the aims of other forms of legal control and regulation.
Criminal justice cuts in President Obama's proposed budget
President Obama's proposed federal budget for the year starting Oct. 1, issued today, calls for a 2 percent increase in the Justice Department's spending but a major cut in the Office of Justice Programs and Community Oriented Policing Services (COPS) office, both of which provide state and local anticrime aid. Describing the reductions as "tough choices," the White House still seeks $600 million to hire "first responders," including police officers and sheriff's deputies.
The proposed budget includes a solid increase for the FBI but a reduction for the Drug Enforcement Administration. It would cut funding for juvenile justice and child safety programs. The proposed budget calls for $50 million in cuts, "refocusing many formula and other grants into a new $120 million Race to the Top style grant that rewards states for tangible improvements in juvenile justice systems." For many programs the Obama budget may signify a maximum potential allocation, because Republicans in Congress will seek further cuts in many federal programs.
February 13, 2011
"Mass Incarceration and the Paradox of Prison Conditions Litigation"
Thanks to the always great Prison Law Blog, I just discovered the very interesting article that shares a title with this title of this post. This piece is by Heather Schoenfeld in a recent issue of Law & Society Review. Here is the abstract:
In this article I examine how prison conditions litigation in the 1970s, as an outgrowth of the civil rights movement, inadvertently contributed to the rise of mass incarceration in the United States. Using Florida as a case study, I detail how prison conditions litigation that aimed to reduce incarceration was translated in the political arena as a court order to build prisons. Drawing on insights from historical institutionalist scholarship, I argue that this paradox can be explained by considering the different historical and political contexts of the initial legal framing and the final compliance with the court order.
In addition, I demonstrate how the choices made by policy makers around court compliance created policy feedback effects that further expanded the coercive capacity of the state and transformed political calculations around crime control. The findings suggest how “successful” court challenges for institutional change can have long-term outcomes that are contrary to social justice goals. The paradox of prison litigation is especially compelling because inmates' lawyers were specifically concerned about racial injustice, yet mass incarceration is arguably the greatest obstacle to racial equality in the twenty-first century.
Missouri prison breaking in new geriatric wing
This new piece, headlined "Aging inmates challenge Missouri prison system," concerning a new wing of a Missouri prison reports on what is becoming old problem for states dealing with old inmates. Here are excerpts:
A prison in Missouri's capital now has a geriatric wing as state officials confront an increasingly elderly inmate population. The "enhanced care unit" opened Jan. 1 at the Jefferson City Correctional Center....
The 36-bed unit is designed as a miniature nursing home, a place where elderly convicts in wheelchairs, strapped to oxygen tanks or struggling with dementia can be segregated from the general prison population. Prisoners older than 50 represented 6 percent of Missouri state inmates in 1998; two decades later, that figure increased to 15 percent.
State officials plan to open similar units in five more state prisons and eventually build a separate prison hospital for elderly inmates, complete with a dementia unit and a dialysis lab.
Missouri Supreme Court Judge Michael Wolff questions whether the state can afford such specialized care. "I don't think the public is really all that keen on spending hundreds of millions of dollars on running nursing homes in prison for old — dare I say — harmless guys," he said....
The rapid growth in the state's aging prison population — as well as the overall prison population — has been driven not by an uptick in crime but by state sentencing policies...
Medical and corrections officials say that due to a variety of factors — including backgrounds that often include drug and alcohol abuse, high-stress lifestyles and a chronic lack of proper medical care — prisoners tend to age more quickly than people on the outside. That's why most state corrections agencies classify inmates as "geriatric" at age 50 or 55, the common age when inmates' health begins deteriorating.
Across the country, older inmates pose a much lower risk of recidivism than their younger counterparts, statistics show. According to the Missouri Department of Corrections, people released from prison at age 20 or younger have a recidivism rate of 23 percent for new crimes after two years. For those older than 70, only 3.5 percent commit new crimes.
Some related posts:
- "Aging Prisoners, Increasing Costs, and Geriatric Release"
- What should Florida and other states do with all their old sex offenders?
- "Aging inmates straining prison systems"
- The story of prisons becoming nursing homes in Virginia
The drug offense (and drug court) part of the story of women in Oklahoma's prisons
As noted in this prior post, a collection of news outlets have come together in Oklahoma to assemble extensive coverage of "Women in Prison" in that state (all of which can be found at this multi-media webpage.) The latest group of pieces zeroes in on drug offenses, starting with this lead piece headlined "Half of women in prison there for drugs." Here are excerpts:
Drug-related offenses account for about 12 percent of arrests among females in Oklahoma, and about 50 percent of women in prison are there on drug-related convictions, according to federal and state crime data.
The average sentence in the state for women in drug-related convictions is 5.5 years, according to a Tulsa World analysis of prison sentences since 2000. Drug court participation in Oklahoma has increased from about 1,500 in 2005 to about 4,200 currently, as more counties add programs....
Oklahoma implemented specialty courts as a method to decrease the number of people going to prison, said Terri White, commissioner of the Oklahoma Department of Mental Health and Substance Abuse Services. The agency has been pushing the more comprehensive program "Smart on Crime," which promotes specific programs before and after a person is incarcerated.
"We took a step back by one phase," White said. "We're saying we can step back even further to when contact with law enforcement is made initially or prevent any contact with law enforcement." The courts are designed to give each participant an individual plan for graduation, which includes home visits, weekly progress reports, random drug testing, and support for obtaining treatment and job skills training.
White said the low re-arrest rate and increases in employment and income among drug court graduates have convinced officials in the criminal justice system that specialty courts work. But the drawback is a lack of treatment beds statewide. Between 600 and 900 people are on a waiting list for mental health services each day, White said.
"Drug court offenders do not cut in line because that would not be fair to those who haven't committed a crime and are wanting to get treatment," White said. "So you may be a person who can't get treatment because you're No. 700. By the time you get in, you are now in the throes of using again, have stopped taking your medications, have committed a crime or have had contact with law enforcement."
Companion pieces with this story in the Tulsa World are headlined "Tough-on-drugs stance puts more in prison" and "Meth maker turns her life around after prison release."