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March 1, 2011

Are death penalty fans pleased or disappointed when a death row defendant dies of natural causes?

The question in the title of this post is prompted by this local news item from California, headlined "Hammer murderer is latest to die naturally on Death Row." Here is the background:

You'd think the biggest cause of death on California's Death Row would be execution.  After all, that's what the 712 prisoners on the row are there for, right?  Turns out it doesn't work that way.

Robber-murderer Richard Ray Parson on Monday became the latest example illustrating that natural causes, not execution, are the leading cause of death on Death Row.  Since the death penalty was reinstated in 1978, California has executed 13 prisoners, while 53 have died of disease, old age or other natural reasons.  Another 18 have committed suicide.

Executions have been on hiatus in the state since 2006 while a federal judge assesses whether the lethal injection method is humane.  The last person to die on the injection gurney was Clarence Ray Allen, 76, in January 2006.

Parson, 67, was sent to Death Row from Sacramento County in 1996 for robbing and killing Theresa Schmiedt two years earlier.  Schmiedt, a 59-year-old nurse, was beaten to death with a hammer in her Sacramento apartment.  Parson stole her purse, prosecutors said.

Parson died Monday morning at a hospital, said the state Department of Corrections and Rehabilitation. It gave no further information.

I could imagine some death penalty fans pleased by this kind of news: another convicted murderer no longer is on the planet and the state no longer has to pay the expenses for keeping this killer alive or for litigating any of his claims that his death sentence is illegal or otherwise flawed.  And yet, I could also imaging death penalty fans feeling some disappointment because this news means another murderer escaped the formal punishment of death and in essence served a life without parole sentence.

Some related posts:

March 1, 2011 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (16) | TrackBack

"You Can Have Sex With Them; Just Don't Photograph Them"

The title of this post is the headline of this notable commentary by Radley Balko at Reason, which carried the sub-heading "A former cop's 15-year prison sentence illustrates the absurdity of federal child porn laws." Here is how it gets started:

In the spring and summer of 2006, Eric Rinehart, at the time a 34-year-old police officer in the small town of Middletown, Indiana, began consensual sexual relationships with two young women, ages 16 and 17.  One of the women had contacted Rinehart through his MySpace page.  He had known the other one, the daughter of a man who was involved in training police officers, for most of her life.  Rinehart was going through a divorce at the time.  The relationships came to the attention of local authorities, and then federal authorities, when one of the girls mentioned it to a guidance counselor.

Whatever you might think of Rinehart's judgment or ethics, his relationships with the girls weren't illegal.  The age of consent in Indiana is 16.  That is also the age of consent in federal territories.  Rinehart got into legal trouble because one of the girls mentioned to him that she had posed for sexually provocative photos for a previous boyfriend and offered to do the same for Rinehart.  Rinehart lent her his camera, which she returned with the promised photos.  Rinehart and both girls then took additional photos and at least one video, which he downloaded to his computer.

In 2007 Rinehart was convicted on two federal charges of producing child pornography. U.S. District Court Judge David Hamilton, who now serves on the U.S. Court of Appeals for the 7th Circuit, reluctantly sentenced Rinehart to 15 years in prison.  Thanks to mandatory minimum sentences, Hamilton wrote, his hands were tied.  There is no parole in the federal prison system.  So barring an unlikely grant of clemency from the president, Rinehart, who is serving his time at a medium-security prison in Pennsylvania, will have to complete at least 85 percent of his term (assuming time off for good behavior), or nearly 13 years.

Hamilton was not permitted to consider any mitigating factors in sentencing Rinehart.  It did not matter that Rinehart's sexual relationships with the two girls were legal.  Nor did it matter that the photos for which he was convicted never went beyond his computer. Rinehart had no prior criminal history, and there was no evidence he had ever possessed or searched for child pornography on his computer.  There was also no evidence that he abused his position as a police officer to lure the two women into sex.  His crime was producing for his own use explicit images of two physically mature women with whom he was legally having sex. (Both women also could have legally married Rinehart without their parents' consent, although it's unclear whether federal law would have permitted a prosecution of Rinehart for photographing his own wife.)

"You can certainly conceive of acts of producing actual child pornography, the kind that does real harm to children, for which a 15-year sentence would be appropriate," says Mary Price, general counsel for the criminal justice reform group Families Against Mandatory Minimums.  "But this is a single-factor trigger, so it gets applied in cases like this one, where the sentence really doesn't fit the culpability."

March 1, 2011 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (15) | TrackBack

February 28, 2011

Washington Post editorial on "Repeat offenders" and best practices

This morning's Washington Post includes this interesting editorial headlined "Repeat offenders."  Here are excerpts:

The numbers are staggering.  Some 5.1 million individuals are out on probation or parole. If national trends hold up, roughly 40 percent of them will be returned to prison for a future offense.  Yet many of the approaches relied on by state and local corrections officials to keep prisoners from committing new offenses are not just ineffective but counterproductive.

Take, for instance, community supervision of inmates deemed at low risk of reoffending. When these parolees are sentenced to halfway houses and other relatively rigid forms of community supervision, their tendency to commit new offenses increases.  That is because they often are forced to spend a significant part of their day at the facility -- time that would be better spent with family, obtaining skills or seeking employment.  Forcing low-risk individuals to spend time in close quarters with more hardened offenders often works to undermine a smooth and crime-free reintegration into society at large.  Placing high-risk offenders in more structured residential programs, on the other hand, reduces their chances of recidivism.

Consider also that drug treatment programs in prison tend to be less effective than those conducted when the offender has been released.  And putting the onus on offenders to travel to often-distant corrections offices to check in with supervisors undermines compliance and positive reintegration, especially compared with success rates when parole and probation officers are stationed in neighborhoods with a high concentration of released offenders.

These observations are contained in a recently released report that grew out of congressional hearings led by Rep. Frank R. Wolf (R-Va.) and then-Rep. Allan B. Mollohan (D-W.Va.). Just as helpful as pointing out commonly made mistakes are the cutting-edge practices identified in the report....  Not every new approach will work throughout the country.  But there are plenty of good ideas, many of which could be tailored to the specific needs of jurisdictions.  The report, in other words, should be required reading.

February 28, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Second Circuit affirms conviction and sentence of creator of morphed child porn

The Second Circuit today handed down an interesting and notable child porn ruling in US v. Hotaling, No. 09-3935 (2d Cir. Feb. 28, 2011) (available here), which gets started this way:

Defendant-Appellant, John Hotaling, appeals from a judgment of the United States District Court for the Northern District of New York (Mordue, J.) of conviction for violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(C) and imposition of a sentence based on a specific offense characteristic sentencing enhancement pursuant to U.S.S.G. § 2G2.2(b)(4).  The district court concluded that the statute prohibiting possession of child pornography was not unconstitutionally overbroad as applied to defendant, nor unconstitutionally vague, and also applied a sentence enhancement on the basis of a photograph depicting sadistic or masochistic imagery.  United States v. Hotaling, 599 F. Supp. 2d 306, 322 (N.D.N.Y. 2008).  We conclude that the district court was correct in holding that child pornography created by digitally altering sexually explicit photographs of adults to display the face of a child is not protected expressive speech under the First Amendment.  We also conclude that the application of the sentence enhancement based on a photograph that has been modified to portray a partially nude minor, restrained by handcuffs, a dog collar and leash, tied to a dresser was proper.  Accordingly, we affirm.

February 28, 2011 in Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

"A Critical Appraisal of the Department of Justice’s New Approach to Medical Marijuana"

The title of this post is the title of this new paper by Rob Mikos now available via SSRN.  Here is the abstract:

The Obama Administration has embarked upon a much-heralded shift in federal policy toward medical marijuana. Eschewing the hard-ball tactics favored by earlier Administrations, Attorney General Eric Holder announced in October 2009 that the Department of Justice (DOJ) would stop enforcing the federal marijuana ban against persons who comply with state medical marijuana laws. Given the significance of the medical marijuana issue in both criminal law and federalism circles, this Article sets out to provide the first in-depth analysis of the changes wrought by the DOJ’s new Non Enforcement Policy (NEP).

In a nutshell, it suggests that early enthusiasm for the NEP is misguided; on close inspection, the NEP represents at most a very modest change in federal policy.  First, the NEP won’t necessarily stop federal agents from pursuing criminal prosecutions of marijuana dispensaries. In a twist of irony, the non-enforcement policy itself is not enforceable.  It doesn’t create any legal rights a court could invoke to dismiss a criminal case. And the DOJ itself will have a difficult time ensuring that federal prosecutors comply with the agency’s stated policy. Second, even assuming the NEP would block criminal prosecutions, federal law could still obstruct state medical marijuana programs by imposing -- or enabling others to impose -- a wide range of civil and private sanctions on medical marijuana users and their suppliers.  The problem is the NEP doesn’t repeal the federal ban on marijuana.  Marijuana technically remains illegal under federal law, and the possession, cultivation, or distribution of the drug trigger a host of civil sanctions not addressed by the NEP. For example, the Department of Housing and Urban Development (HUD) can deny federal housing subsidies to medical marijuana users, and pharmaceutical companies could potentially bring civil RICO actions against marijuana dispensaries. What is more, the federal ban arguably preempts states from shielding marijuana users and dispensaries from sanctions imposed by private parties.  For example, employers can likely skirt liability under state law for discriminating against employees who use marijuana for medical purposes.  Metaphorically, the federal ban is a hydra, only one head of which has been severed by the NEP (and one that could too easily be regrown). The labor of ending federal prohibition is not yet complete.

February 28, 2011 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

SCOTUS limits reach of confrontation clause in Michigan v. Bryant

Because the Sixth Amendment's Confrontation Clause has been held not to apply at sentencing, today's SCOTUS ruling about the reach of the clause today in Michigan v. Bryantis not technically an issue of sentencing law and policy.  Nevertheless, the authors of today's opinions -- Justice Sotomayor for the Court, Justice Thomas with a separate concurrence, and Justices Scalia and Ginsburg in dissent (and Justice Kagan not participating) -- and the opinion itself are likely of great interest to all criminal justice participants.  Here is how the opinion for the Court gets started:

At respondent Richard Bryant’s trial, the court admitted statements that the victim, Anthony Covington, made to police officers who discovered him mortally wounded in a gas station parking lot.  A jury convicted Bryant of, inter alia, second-degree murder. 483 Mich. 132, 137, 768 N.W.2d 65, 67–68 (2009).  On appeal, the Supreme Court of Michigan held that the Sixth Amendment’s Confrontation Clause, as explained in our decisions in Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006), rendered Covington’s statements inadmissible testimonial hearsay, and the court reversed Bryant’s conviction.  483 Mich., at 157, 768 N.W.2d, at 79.  We granted the State’s petition for a writ of certiorari to consider whether the Confrontation Clause barred the admission at trial of Covington’s statements to the police.  We hold that the circumstances of the interaction between Covington and the police objectively indicate that the “primary purpose of the interrogation” was “to enable police assistance to meet an ongoing emergency.”  Davis, 547 U.S., at 822.  Therefore, Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements, and their admission at Bryant’s trial did not violate the Confrontation Clause. We vacate the judgment of the Supreme Court of Michigan and remand.

UPDATE:  Over at The Volokh Conspiracy here, Orin Kerr has this post on the Bryant decision titled "Michigan v. Bryant and the Future of the Confrontation Clause."

February 28, 2011 in Procedure and Proof at Sentencing | Permalink | Comments (12) | TrackBack

SCOTUS to finally consider whether "cocaine base" means more than crack

The Supreme Court this morning is hearing a sentencing case, DePierre v. United States, in which the Justices seem finally willing to resolve a long-debated issue of whether Congress was only referencing crack or other versions of cocaine when it used the term "cocaine base" in federal sentencing statutes. SCOTUSblog has a preview here, which starts this way:

The Controlled Substances Act, 21 U.S.C. § 841(b)(1), distinguishes between “coca leaves,” “cocaine, [and] its salts” on the one hand, and “cocaine base” on the other.  As originally passed in 1986, the Act mandated the same minimum ten-year sentence for offenses involving either fifty grams of cocaine base or five kilograms of cocaine in other forms.  (It was recently amended to raise the trigger to 280 grams of cocaine base.)  On Monday the Court will hear argument in DePierre v. United States (No. 09-1533), which presents the narrow statutory question of just what Congress meant by “cocaine base.” Six circuits have held that this language encompasses all chemically basic forms of processed cocaine, while four have ruled that it refers only to crack cocaine.

February 28, 2011 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Sentencing memo for former federal judge urges probation and stresses mental health issues

This local article, headlined "Atlanta Fed Judge Busted With Drugs and Stripper Suffered Depression and Brain Damage, Sentencing Memorandum Says," reviews some notable sentencing arguments being made by a high-profile criminal defendant.  Here are details:

Ex-Federal Judge Jack Camp is hoping to stay out of prison, hoping a judge considers his sentencing memorandum that focuses on his mental health and problems in life on March 11.

In a memo filed in federal court in Atlanta on Friday, Camp’s attorney William Taylor of Washington writes that Camp has suffered from acute depression, brain-damaging from a bicycle accident and personal family tragedy that may have contributed to him getting busted for buying cocaine for a stripper he was having an affair with.

“They do not excuse his conduct,” his attorney wrote.”  They do help explain, however, how in May of 2010 a lonely man in the twilight of his life became entangled with a seductive prostitute more than willing to take advantage of his needs and of his misguided impulse to be her friend and protector.”

The memo notes that Camp entered a psychiatric hospital after his arrest last year.  The physician in charge of his evaluation and treatment, Dr. Miles Quaytman talked to the probation office....

On Nov. 19, Camp, who was on senior status, pleaded guilty to aiding a felon in possessing illegal drugs, possessing illegal drugs and giving his government issued lap top to the stripper he was having an affair with.  He has resigned as a federal judge, which is lifetime presidential appointment.  Camp bought drugs for the stripper, who was cooperating with authorities.

The papers also noted that Dr. Qaytman found that Camp suffered serious head injury in a bicycling accident in 2000 and he has no memory of that.  “In addition to his mood cycling disorder and the physical damage to the brain, Mr. Camp has faced a number of difficult and stressful personal challenges,” the sentencing memorandum said.

Plus, he had prostrate cancer, his mother has dementia and his sister has stage four colon cancer.  The document asked that he be sentenced to probation and community service. “No one can assess precisely how these features of his personal mental health and the sorrows and stress of his life interacted,” the filing said.

These kinds of offender-based sentencing arguments for leniency are not at all uncommon, especially since Booker made the guidelines advisory. But I believe that former Judge Camp was known for being not especially influenced by these types of arguments when he was the one doing the sentencing. But now that the sentencing tables have turned...

Related prior posts (which generated lots of notable comments):

February 28, 2011 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (11) | TrackBack

February 27, 2011

Interesting debate in Nevada over preparation of presentence reports

Rarely does the preparation of presentence reports garner much attention from the media or the legal academy.  For that reason and others, I found really notable this new piece from Nevada headlined "Judges criticize plan on pre-sentence reports."  Here is how the piece begins:

Judges across Nevada have banded together against a plan by Gov. Brian Sandoval, himself a former judge, to make the counties responsible for producing pre-sentence investigation reports on felons -- reports used to determine whether an offender is a threat to the community or safe enough to be released.

Calling the idea "potentially dangerous," the judges say counties can't afford to take over the job of writing these reports, called PSIs, and they would likely disappear, leaving judges without the critical information they need to decide whether an offender should remain behind bars or be let out.

"Sentencing in felony cases would be impossible without the presentence report," said Washoe District Judge Brent Adams.  "Every single trial judge in Nevada opposes this idea.  As a former judge, the governor is well aware of the critical nature of those reports because he relied upon them in every sentencing he did as a federal judge."

"It's dangerous in my mind," added District Judge Andrew Puccinelli of Elko, who, as president of the Nevada District Judge's Association, has written letters to lawmakers on behalf of all of the state's judges blasting the plan.  "I'm not aware of any judge who was contacted by anybody on this."

Heidi Gansert, Sandoval's chief of staff, said the reports are important tools, but said "it's a matter of funding."  Under the governor's proposal, the Division of Parole and Probation would eliminate 77 positions and save $10.4 million over the biennium by moving the investigations to the district courts and ultimately the counties.

"We're streamlining.  We're in the process of prioritizing how we're spending," Gansert said.  "We agree the investigations are important and we recognize it will be difficult for the counties, but we believe the counties should be funding the costs."

Bernard Curtis, director of the Division of Parole and Probation, agreed.  "Everybody's broke.  The state is broke," he said.  "We're not saying the system should go away.  We're not saying it won't be done. Just not by P&P."

But Washoe District Chief Judge Connie Steinheimer said the money simply isn't there at the court or county level.  "I don't know how we could do it," she said.  "We've got a $15 million budget (for the Washoe District Court).  How are we supposed to add another $2 million?"

February 27, 2011 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack