January 7, 2012
Will new federal definition of rape significantly impact approaches to sex crimes and punishments?
The question in the title of this post is prompted by this past week's news that the feds have officially adopted a new rape definition for FBI crime reporting purposes. The basics are well covered in this entry, headlined "Holder Makes It Official: New FBI Rape Definition Approved," coming from the folks at The Crime Report:
U.S. Attorney General Eric Holder today announced revisions to the Uniform Crime Report’s definition of rape, which the Justice Department says will lead to a more comprehensive statistical reporting of rape nationwide.
Holder said the new definition is more inclusive, better reflects state criminal codes, and focuses on the various forms of sexual penetration understood to be rape. The revision had been urged by women's advocacy groups and was approved by an FBI advisory committee. FBI Director Robert Mueller approved the new official definition on Dec. 21, 2011....
The change has been almost a decade in the making, as The Crime Report previously reported, with a series of advisory and listening meetings on a new definition. The old definition, which was proposed in 1927 and signed into law in 1929, defined rape as "the carnal knowledge of a female, forcibly and against her will." The new definition is: “The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” This new definition now includes men and boys to provide a fuller picture of rape in America.
A recent Centers for Disease Control Study reported that as many as 1 in 3 women have experienced rape, physical violence or stalking by an intimate partner in their lifetimes, and about 1 in 10 men.
In 2010, the FBI reported 84,767 rapes. The complete numbers for 2011 Uniform Crime Report have not yet been reported, but the FBI issued a preliminary report showing a 6.4 decrease in violent crimes during the first six months of 2011. In addition to forcible rape, violent crimes reported by the UCR also include murder, robbery, and aggravated assault. Experts expect the numbers of reported rape to increase over the next few years once the new tools are fully implemented.
Interesting global drug use data via new study in The Lancet
This New York Times article, which is headlined "Marijuana Use Most Rampant in Australia, Study Finds," reports on lots of interesting global illegal drug use data:
A study published Friday in a British medical journal may have finally uncovered the secret behind Australia’s laid-back lifestyle, and it turns out to be more than just sun and surf: The denizens Down Under, it turns out, consume more marijuana than any other people on the planet.
The study, an analysis of global trends in illegal drugs and their effect on public health published in The Lancet, a prestigious journal, found that Australia and neighboring New Zealand topped the lists globally for consumption of both marijuana and amphetamines, a category of drugs whose use the study found to be growing rapidly around the world.
The study’s co-authors, Professors Louisa Degenhardt of the University of New South Wales and Wayne Hall of the University of Queensland, reported that as much as 15 percent of the populations of Australia and New Zealand between the ages of 15 and 64 had used some form of marijuana in 2009, the latest year for which data were available.
The Americas, by comparison, clocked in at 7 percent, although North America batted above the neighborhood average with nearly 11 percent of its population partaking. Asia demonstrated the lowest global marijuana use patterns at no more than 2.5 percent, the study said, although difficulties in obtaining accurate data in less developed countries were cited as one possible reason for the low figures....
Stepping back for a global perspective, the study found that marijuana was the world’s most widely consumed illicit drug, with anywhere from 125 million to 203 million people partaking annually. Use of the drug far outstrips that of other illicit drugs globally, with 14 million to 56 million people estimated to use amphetamines, 14 million to 21 million estimated to use cocaine and 12 million to 21 million estimated to use opiates like heroin.
Still, despite marijuana’s significantly outpacing other illicit drugs in terms of the volume of use, the study found that it was the least likely of all illicit drugs to cause death. Additionally, barely 1 percent of deaths in Australia annually can be attributed to illegal drugs, the report said, compared with almost 12 percent from tobacco use.
This global study is actually part of a series of articles in The Lancet available at this link and set up with this executive summary:
A three-part Series assesses the global public-health toll and policy implications of drug addiction. The first paper summarises data for the prevalence and consequences of problem use of amphetamines, cannabis, cocaine, and opioids. In high-income countries, illicit drug use contributes less to the burden of disease than tobacco, but a substantial proportion of that burden is due to alcohol. Intelligent policy responses to drug problems need better prevalence data for different types of illicit drug use and the harms that their use causes globally. This need is especially urgent in high-income countries with substantial rates of illicit drug use and in low-income and middle-income countries close to illicit drug production areas. The second paper reviews existing drug policies and highlights the need for greater reliance on scientific evidence-based policy making. The final paper examines the value of international drug conventions in protecting public health.
January 6, 2012
"Criminal serving his sentence with monks pleads to be sent back to prison... because monastery life is too hard"
The title of this post is the headline of this amusing article from the UK, which was sent my way by a kind reader. Here is how the piece starts:
A convicted criminal who was serving out his sentence in a monastery has escaped for the second time and asked to be sent back to prison because life was too tough.
Thief David Catalano, 31, was sent to a Santa Maria degli Angeli community run by Capuchin monks in Sicily last November. But he found their austere lifetstyle too tough to handle and soon escaped. After a short while on the run he was caught by police and sent back.
On Monday he fled for the second time in six weeks, only to swiftly turn himself in at a police station and beg officers to send him back to jail in the nearby town of Nicosia. He told the stunned policemen: 'Prison is better than being at that hostel run by monks.'
A police spokesman said: 'Catalano arrived out of the blue and said there was no way he could stay on with the monks. He said it was too tough and he wanted to go back to prison, so we happily obliged and he is now back behind bars serving the rest of his sentence.'
Many states still resisting federal sex offender mandates
This new Stateline piece, which is headlined "States struggle with national sex offender law," provides an effective update on the continued state resistance to federal sex offender provisions from the Adam Walsh Act. Here are excerpts:
Six years ago, Congress passed what is known as the Adam Walsh Act, aimed at protecting children from predators by collecting sex offender data in a national public registry and requiring those people listed in it to report their movements to law enforcement. Adam’s law required states to place convicted sex offenders in one of three tiers, based on the severity of their crimes....
The vast majority of states did not comply on time. As the five-year deadline of July 2011 was approaching, only four had met the terms of the law. The Obama administration issued new guidelines earlier in 2011 that gave states more discretion in implementing the act and clarified how to share information, and in the past year, 12 more states have become compliant. But most still are not, even though they will lose 10 percent of their justice assistance grants from the federal government in fiscal year 2012 as a penalty for inaction.
It’s not that states are uninformed about the law; it’s that they have substantial objections to it. Many see it as an unfunded mandate requiring them to spend millions of dollars collecting information and placing it in the national registry. They are reluctant to bear the cost of updating their own technology to register digital fingerprints, palm prints and DNA, and of paying for the additional time that law enforcement officers would spend processing sex offenders who appear before them in person.
Advocates for juveniles also complain about what would be a lifetime listing for some juvenile sex offenders, which they say goes against any commitment to rehabilitate juveniles, rather than punishing them for long periods of time.
Last month, Pennsylvania became the 16th state to sign on to the act, just barely averting the federal aid penalty. Pennsylvania changed its previous law to add juveniles to its registry and require out-of-state and homeless people convicted of sexual offenses to register with law enforcement....
But many other states are continuing to voice their objections to what the federal law expects of them. Susan Frederick, senior federal affairs counsel at the National Conference of State Legislatures, expects states to continue to press Congress for more discretion about which offenders to place on the three-tiered national registry, and for how long. Currently the law requires that convicted sex offenders, including juvenile offenders, remain in the registry for anywhere from 15 years to life, depending on the severity of their crime.
To ask for modifications in Adam’s law to render it less strict is a politically difficult request. Even in the face of compelling evidence that the federal law needs to be amended if all states are to comply, Congress may be reluctant to make changes. “It’s a political argument, and nobody wants to be seen as soft on sex offenders,” says Frederick. “The parents of these children come to committee hearings and share their stories, and it’s very difficult to look those parents in the eye and say we need to have flexibility for registering offenders.”
In the absence of changes to Adam’s law, however, some states will argue that complying with it is simply not worth the costs. Even though they lose 10 percent of their justice assistance money, that is usually less than they would end up paying for compliance. Ohio, which was the first state to become compliant in 2007, had within two years spent about $10 million just defending itself against lawsuits from offenders sentenced to the registry, according to the Pittsburgh Tribune-Review. In contrast, Ohio would have lost only about $2 million for non-compliance during the same period.
These calculations may be the main reason why other large and budget-challenged states such as Texas, California, and New York have not taken steps to comply. A Texas Senate study conducted in 2010 found that implementing the act in that state would cost about $39 million, in comparison to a loss in federal grants of $1.4 million per year. Texas legislators have also argued that the state’s current sex offender system, which was handling 66,587 registered sex offenders as of June 2011, is already backed up and that imposing another layer of requirements would only add to the strain of struggling law enforcement agencies.
January 5, 2012
Oklahoma completes first execution of 2012
As reported in this local article, headlined "Ottawa County killer put to death at Oklahoma State Penitentiary," the first execution in the United States in 2012 took place earlier today. Here are the basics from the media account:
The state of Oklahoma executed Gary Roland Welch on Thursday evening for his role in a 1994 murder in Ottawa County. Welch was 49. He was 32 when he killed Robert Dean Hardcastle, 35, in Miami, Okla., in a dispute over drugs.
The execution began at 6:03 p.m. at the Oklahoma State Penitentiary, and Welch was pronounced dead at 6:10 p.m. Before the lethal injection started, Welch said: “Let’s get it on, because that’s what we’re here for.” He then chanted, “Vahalla, Odin, Slay the beast,” several times before losing consciousness. He offered no apology.
Prosecutors said Welch assaulted Hardcastle and then chased him when he fled. Welch and co-conspirator Claudie Conover continued assaulting Hardcastle in a ditch at the end of the street, where multiple witnesses saw Welch punch and stab the victim before slashing him with a broken beer bottle. Hardcastle had twin sons who were 2½ years old when their father was killed.
Conover was originally sentenced to death as well, but his sentence was later reduced to life without parole. Conover died in 2001 from natural causes while incarcerated at the Dick Conner Correctional Center in Hominy. Welch maintained that he killed Hardcastle in self-defense, and he appeared unrepentant and indignant at his clemency hearing in December....
Oklahoma Assistant Attorney General Robert Whitaker argued that the forensic evidence and court testimony in Welch’s case contradicted his claims of self-defense. Two hours before Welch killed Hardcastle, he had pulled a knife on someone else in the Miami area, demanding drugs, officials said....
Attorney General Scott Pruitt said in a statement that “Gary Welch had a 15-year history of violent crimes that included multiple assaults on women and police officers, burglary, stabbings and carrying concealed weapons before his conviction for murder. The punishment of death as chosen by a jury of Welch’s peers is reserved for the most heinous crimes. My thoughts are with Robert Hardcastle’s family and what they have endured for the past 17 years.”
"Four ways to relieve overcrowded prisons"
I just came across this opinion piece by Arjun Sethi published last week by the Christian Science Monitor. Here are excerpts of a piece that merits a full read:
Necessity can spur novelty. Even political novelty. As the need for fiscal austerity grows, an unlikely alliance has emerged between policymakers and public advocates who have long sought criminal justice reform. These policymakers are realizing what advocates have reiterated for years: The nation’s addiction to incarceration as a curb on crime must end. The evidence is staggering....
Prison overcrowding is ubiquitous and shows few signs of abating: Between 1970 and 2005, the nation’s inmate population grew by 700 percent. Besides impeding access to health care, overcrowding also creates unsafe and unsanitary conditions, diverts prison resources away from education and social development, and forces low- and high-risk offenders to mingle, increasing the likelihood of recidivism....
First, revamp habitual-offender laws, now in effect in more than 20 states, which regularly yield perverse sentences....
Second, implement misdemeanor reform by decriminalizing offenses such as feeding the homeless, dog-leash violations, and occupying multiple seats on the subway. Such reform is vital: between 1972 and 2006, misdemeanor prosecutions rose from 5 million to 10.5 million....
Third, limit the use of pre-trial detention....
Fourth, impose nonprison penalties on those arrested for technical parole and probation violations like missing a meeting or court appearance. This would dramatically ameliorate overcrowding and excessive case loads given that over a third of all prison admissions are for such types of violations. Texas is leading the charge here, and through such measures has significantly reduced its inmate population.
North Carolina legislature creates committee to study state's Racial Justice Act while considering veto override
As detailed in this local North Carolina article, which is headlined "Racial Act on Hold, Lawmakers Override Other Veto," the long-running debate over North Carolina's Racial Justice Act took another interesting turn in the state's legislature. Here are details from this news report:
The state House adjourned in the early morning hours Thursday unable to override the veto of the Racial Justice Act, but that did not stop them from overriding another governor veto. Around 1 a.m., the Legislature overrode Gov. Beverly Perdue's veto of a bill that would eliminate the ability of the state's largest teaching group to have voluntary membership dues deducted directly from teachers' paychecks.
The override capped a long day and night at the Legislative Building for a special session called by Perdue for lawmakers to consider her veto that blocked a bill that would eliminate key provisions of the 2009 Racial Justice Act. The Senate overrode that veto, but the House didn't, deciding instead to form a committee to study issues about the death penalty and racial bias....
Perdue condemned GOP leaders for taking up other legislation when she called the session only to consider the changes to dismantle the Racial Justice Act law. Republicans "didn't have the votes to get what they wanted legally. So, in the dark of night, they engaged in an unprecedented, unconstitutional power grab," Perdue said in a prepared statement after the vote. "I am saddened for the people of North Carolina that the Republicans abused their power and chose this destructive path."
As for The Racial Justice Act that Republicans were originally scheduled to debate and try to override, they say they might not have had the votes, but they are not finished with the issue. "Now we've established a committee to look at specific issues and see if we can resolve what I think are very valid and profound concerns that the DA has expressed, that DAs across the state have expressed about the Racial Justice Act," House Speaker Thom Tillis said.
The special committee will look at racial discrimination and how the death penalty is carried out. However, past that Republicans say the Racial Justice Act isn't likely to come up again soon.
Though it is hard to be certain what could come next on this matter, the NC House's decision to create a "special committee" to look at "racial discrimination and how the death penalty is carried out" may end up being the very best possible resolution for murder defendants sitting on North Carolina's death row and hoping to avoid execution. I would expect that this "special committee" may take many months, if not many years, to complete its study of these matters and in the meantime the Racial Justice Act remains the law in North Carolina and litigation under the act probably remain in suspended development.
In part because of lethal injection litigation and now in part because of RJA litigation, there has not been an execution in North Carolina in the past five years. With the RJA (barely) surviving this latest legislative reform effort through the creation of a study committee, I would be somewhat surprised if the state is able to move forward on any (non-volunteer) execution in the next five years.
Eighth Circuit affirms supervised release condition prohibiting "entering bars, taverns, or [similar] establishments"
The Eighth Circuit has an interesting ruling concerning an interesting supervised release condition in US v. Forde, No. 11-107 (8th Cir. Jan. 5, 2012) (available here). Here are the basics of the issue and the ruling:
Toliver challenges the district court’s imposition of a special condition prohibiting him from using alcohol and “from entering bars, taverns, or other establishments whose primary source of income is derived from the sale of alcohol.”...
Our precedent in reviewing alcohol prohibitions has “yielded mixed results.” United States v. Simons, 614 F.3d 475, 480 (8th Cir. 2010). “In general, we have upheld such bans for defendants with substance-abuse problems,” but have reversed “where the defendant’s history or crime of conviction did not support a complete ban on alcohol.” See id. (citing cases for this proposition). In Toliver’s case, there is no indication his crime of conviction — conspiring to distribute cocaine— was in any way related to alcohol or bars, taverns, or similar establishments. The question then is whether Toliver’s history justified prohibiting him from both using alcohol and entering bars and taverns. Though a close question, we conclude it does.
According to the PSR, Toliver, 26 years old at the time of sentencing, reported that he “started to consume alcohol when he was 18 years old,” and “considered himself a ‘social’ drinker ever since.” Toliver also “reported daily use of marijuana since he was 13 years old” and he had “completed a four-week outpatient drug program in Chicago.” The district court found Toliver was a substance abuser and in making an individualized assessment, explained it was “familiar with the addiction process and the fact that there is cross addiction, that drug users when they get off of drugs frequently abuse alcohol,” and the alcohol and bars and taverns restriction is “primarily . . . because [Toliver] is also a substance abuser when it comes to marijuana.”...
Toliver contends this aspect of the condition “imposes a greater deprivation of liberty than necessary to achieve the statutory purposes of supervised release” in violation of § 3583(d). But the district court expressly connected this aspect of the condition to Toliver’s rehabilitation from his drug dependency, and we have upheld such a restriction for purposes of rehabilitation before.... Considering the district court narrowed the scope of the prohibition to establishments “whose primary source of income is derived from the sale of alcohol,” we determine the restriction is not overbroad and its imposition was within the district court’s broad sentencing discretion.
"Texas Prisoner Burials Are a Gentle Touch in a Punitive System"
The title of this post is the headline of this intriguing New York Times article. Here are excerpts:
Kenneth Wayne Davis died at 54 as not so much a man but a number: Inmate No. 327320. Mr. Davis was charged, convicted, sentenced and incarcerated for capital murder by the State of Texas after taking someone’s life on Nov. 19, 1977. But when he died in November 2011, Texas seemed his only friend. His family failed to claim his body, so the state paid for his burial....
On this day, Mr. Davis’s funeral was one of seven at the Captain Joe Byrd Cemetery, the largest prison graveyard in the country, 22 acres where thousands of inmates who were executed or died while incarcerated are buried. All of them went unclaimed by their relatives after they died, but the cemetery is not a ramshackle potter’s field....
The state’s prison agency, the Texas Department of Criminal Justice, has been the steward of the cemetery since the first inmates were buried there in the mid-1800s, maintaining and operating it in recent decades as carefully and respectfully as any religious institution might....
In a state known for being tough on criminals, where officials recently eliminated last-meal requests on death row, the Byrd cemetery has been a little-known counterpoint to the mythology of the Texas penal system. One mile from the Walls Unit, which houses the state’s execution chamber, about 100 inmates are buried each year in ceremonies for which the state spends considerable time and money. Each burial costs Texas about $2,000. Often, as in Mr. Davis’s case, none of the deceased’s relatives attend, and the only people present are prison officials and the inmate workers.
Though all of those buried here were unclaimed by relatives, many family members fail to claim the bodies because they cannot afford burial expenses and want the prison agency to pay the costs instead. The same relatives who declined to claim the body will then travel to Huntsville to attend the state-paid services at the cemetery. “I think everyone assumes if you’re in a prison cemetery you’re somehow the worst of the worst,” said Franklin T. Wilson, an assistant professor of criminology at Indiana State University who is writing a book about the cemetery. “But it’s more of a reflection of your socioeconomic status. This is more of a case of if you’re buried there, you’re poor.”
Prison officials have verified 2,100 inmates who are buried at the cemetery, but they say there may be additional graves. Professor Wilson recently photographed every headstone and estimated that there were more than 3,000 graves.
January 4, 2012
Primary in "Live Free or Die" state heats up drug war talk among candidates
As suggested by these two new items via the Huffington Post, it appears that the primary season move to New Hampshire now has more GOP candidates talking about aspects of the war on drugs:
These developments make me a bit more hopeful (but still not optimistic) that the federal drug war, or at the very least federal pot policy and its relationship to state pot reform movements, may get some attention in the next GOP debate this coming weekend in New Hampshire.
Fourth Circuit suggests people must be "responsible" to get full Second Amendment protection
The Fourth Circuit has an interesting and notable Second Amendment ruling today in US v. Chapman, No. No. 10-5071 (4th Cir. Jan. 4, 2012) (available here). Here is how the opinion begins, the passage that prompts the title of this post, and the ends of the opinion:
Section 922(g)(8) of Title 18 of the United States Code prohibits a person who is subject to a domestic violence protective order issued under certain specified circumstances from, inter alia, possessing a firearm or ammunition in or affecting interstate commerce. 18 U.S.C. § 922(g)(8). The sole issue raised on appeal by Ronald Chapman (Chapman) is whether his conviction on one count of violating § 922(g)(8) survives his as-applied constitutional challenge under the Second Amendment, U.S. Const. amend. II. For reasons that follow, we affirm the judgment of the district court [which rejected the defendant's Second Amendment claim]....
Chapman’s claim is not within the core right identified in Heller — the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense. Assuming arguendo that Chapman was a law-abiding citizen at the time he possessed the six firearms and 991 cartridges of ammunition set forth in the indictment, he was, without a doubt, not a responsible citizen by virtue of: (1) a judicial finding that he likely committed domestic abuse; (2) his engaging in behavior causing him to be judicially prohibited for 180 days from using, attempting to use, or threatening to use physical force against his intimate partner that would reasonably be expected to cause bodily injury; (3) his serious attempts at suicide using firearms in the very home in which he claims to have possessed such firearms for self-defense and his endangering the life of his ex-wife in the process; and (4) his discharge of a firearm out of the bedroom window in the direction of his ex-wife. Accordingly, we conclude that intermediate scrutiny is the appropriate standard of scrutiny for Chapman and similarly situated persons....
We also recognize that the prohibitory net cast by § 922(g)(8)(A)-(B) and (C)(ii) may be somewhat overinclusive given that not every person who falls within in it would misuse a firearm against his own child, an intimate partner, or a child of such intimate partner, if permitted to possess one. This point does not undermine the constitutionality of § 922(g)(8)(A)-(B) and (C)(ii), however, because it merely suggests that the fit is not a perfect one; a reasonable fit is all that is required under intermediate scrutiny....
For the reasons stated, we hold that § 922(g)(8)(A)-(B) and (C)(ii), as applied to Chapman, satisfies the intermediate scrutiny standard in analyzing his Second Amendment challenge to such statute. We, therefore, affirm the judgment of the district court.
This ruling just further confirms my view that the Second Amendment right to keep and bear arms is a quirky one among those rights expressly recognized in Bill of Rights. I doubt that a court would hold that someone could, simply by virtue of being subject to a domestic violence protective order, be subject to federal criminal prosecution for, say, just going to church or writing a book or exercising other First Amendment rights. Perhaps more worrisome for those who care about gun rights, I wonder if and when folks deeply committed to gun control might claim that persons who are, say, unwilling to register their guns with the authorities are not responsible citizens entitled to full Second Amendment protection.
"Falling Crime Rates Challenge Long-Held Beliefs"
The title of this post is the headline of this 30-minute segment that played yesterday on NPR's Talk of the Nation. The guests were Charles Lane from the Washington Post and William Bratton, former chief of police in NYC and LA. Here is NPR's set up:
Crime rates dropped sharply in the past twenty years, according to FBI data, a trend that continues despite the recession and a recent decrease in prison populations. Criminologists see a clear trend, but can't fully explain what's driving the decline in violent and property crime rates.
Some related posts on the great modern crime decline:
- Effective Washington Post commentary talks up great (and still puzzling) crime decline
- Amazingly great new FBI data: crime down yet again in start of 2011!
- 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"
Will deterrence be well-served by jailing of "house party mom"?
The question in the title of this post is prompted by this notable local story from Florida, which is headlined "House party mom loses appeal, jailed; Santarelli sentenced to 364 days in jail." Here are the details:
A St. Johns woman who appealed her conviction for allowing minors to attend an open house party that resulted in the deaths of two participants was in the St. Johns County jail on Tuesday after the Florida State Supreme Court refused to hear her appeal.
Diane Katz Santarelli, now 54, was sentenced on July 5, 2010, but remained free pending the appeal. Her freedom ended Tuesday afternoon. “Bond was revoked and she turned herself in … to begin serving a 364-day sentence,” said St. Johns County Sheriff’s Office spokesman Kevin Kelshaw.
State Attorney R.J. Larizza said the 364-day sentence wouldn’t bring back the two teenagers, but it might “deter other adults from engaging in such potentially deadly activities.”
A jury found Santarelli guilty of hosting an open house party and contributing to the delinquency of a minor. The contribution to a delinquency charge is a first-degree misdemeanor and the hosting an open house party is a second-degree misdemeanor.
When the late Senior Circuit Judge Richard O. Watson sentenced Santarelli to the maximum on both counts in 2010, he called her conduct “probably the egregious case of contributing to the delinquency of a minor that I have had experience with in my 50 years as a lawyer — and as a judge, public defender and prosecutor.” Watson released Santarelli on her own recognizance, pending her appeal of a case in which “some sticky legal issues” were involved.
The misdemeanor trial came after Santarelli was found not guilty on two counts of manslaughter for the deaths of Jessy Calvin Pitts, 19, and Taylor Rae Brennan, 17. The two died in an auto crash on State Road 13 the night of Jan. 11, 2009, shortly after leaving a party at Santarelli’s home.
She was the first person in Florida to be charged with manslaughter for hosting a house party that resulted in the death of a minor. “Santarelli’s prosecution was the first of its kind in Florida,” Larizza said. “Underage drinking has deadly consequences and we must hold adults accountable that encourage and provide alcohol and/or drugs to our children.”
This seems like the kind of criminal activity that can be reasonably impacted by criminal prosecutions and tough sentencing. Of course, we all hope that parents will do their best to keep kids safe without criminal justice threats. But having the kicker of criminal consequences after something goes terribly wrong perhaps can help encourage adults to work that much harder to keep teenagers that much safer in these sorts of party settings.
New York Times editorial urges commutation for Shirley Ree Smith
Regular readers are familiar with the Shirley Ree Smith case from California, and today New York Times' readers are seeing this pitch from the paper's editorial board for Smith to receive clemency. Here are excerpts of the pitch:
The power to pardon is an essential means of justice, allowing a governor to right what the law got wrong. Gov. Jerry Brown of California has been asked to commute to time served the sentence of Shirley Ree Smith, who was convicted in 1997 of killing her grandson and has already served 10 years of a 15-years-to-life sentence. We urge the governor to commute her sentence so she does not now have to return to prison as a result of a misguided Supreme Court ruling.
Ms. Smith was convicted of shaking her grandson to death. When the United States Court of Appeals for the Ninth Circuit overturned her conviction in 2006, it found “no demonstrable support” for it. There was “no physical evidence” and “no other evidence” of the severe bleeding or swelling that are the most common signs of shaken baby syndrome. The court concluded “there has very likely been a miscarriage of justice in this case.”
This fall, however, five years after Ms. Smith was released, the Supreme Court overruled the Ninth Circuit, which means that she must complete her sentence unless it is commuted....
Ms. Smith has already served 10 years for a crime she likely did not commit. She should not now be made a victim of the Supreme Court’s pique.
I am not certain that the Supreme Court's ruling in Smith was "misguided," but I am certain that Gov. Brown would be wise and astute to commute Smith's sentence. Indeed, as I explained in this post, I have a very hard time coming up with any sound reason for not commuting her sentence at this point.
January 3, 2012
Is there a "growing gulf between the Supreme Court justices and the rank-and-file federal judges"?
The question in the title of this post is prompted by the subheading of this provocative new commentary by Andrew Cohen in The Atlantic. (Hat Tip: How Appealing) The piece's main headline is "A Federal Judge Responds Defiantly to Chief Justice Roberts"; it includes a reprinting of a sharp note authored by a federal court judge in reponse to the Chief Justice's recent report on the federal judiciary (noted here). The whole piece is a must-read for all federal court watchers, and here is a some of what Cohen adds to the discussion:
On Sunday, I wrote this piece criticizing United States Supreme Court Chief Justice John Roberts for his mealy-mouthed annual report on the judiciary. The chief justice copped out, I believe, by failing to even mention the fact that lower-court federal judges all over the country are sorely understaffed (because of Republican intransigence in the Senate) and under unwarranted, and sometimes just plain crazy, political attack from conservative politicians.
I also found it odd, though I didn't mention it Sunday, that the chief justice did not mention the late John M. Roll, the Chief District Judge of Arizona, who was shot and killed in Tucson last January -- literally in the line of duty -- in the attack on Rep. Gabrielle Giffords. Judge Roll was in line to talk to Rep. Giffords at the supermarket that day to discuss the "judicial emergency" in Arizona caused by too few federal judges trying to handle too many cases.
Instead, the Chief Justice devoted almost his entire 16-page message to defending the Court's recusal practices, which are not nearly as codified or transparent as they ought to be. I didn't analyze the merits of the chief justice's recusal argument because I think it's a dead-end issue. The justices are going to continue to play by their own recusal rules for the same reason they will continue to preclude cameras in their courtroom -- because they can....
There is always an inherent gulf between the justices, who hear a tiny fraction of all cases that come before them, and the rank-and-file federal judges who decide the merits of tens of thousands of cases each year. But that gulf is wider today in the wake of the chief justice's remarks. Amid the clamor over judicial independence, and with scores of judicial nominations left pending to the detriment of litigants everywhere, John Roberts decided that now was the time to devote virtually his entire annual message to an explanation of why the Supreme Court is different from the rest of the federal judiciary when it comes to recusal matters.
That's not leadership. That's trying to cover your butt. No wonder some federal judges are angry during these days of overloaded dockets and threats of judicial subpoenas. I would be, too, if the chief justice who was supposed to be speaking for me was instead reminding me how different the Supreme Court is from the rest of the judiciary.
Discussion of the high costs of the prison boom from coast to coast
The media is ringing in the new year with a number of notable pieces in a number of state newspapers discussing the need for sentencing and correction reforms in light of the high costs of large state prison populations:
From the Atlanta Journal-Constitution here, "Georgia rethinks its prison stance."
From the Kansas City Star here, "Tougher sentences boost cost of justice in Kansas; State officials consider early release, prevention methods in response to overcrowding and reduced funds."
From the Oregonian here, "Bring on the debate over corrections."
The ending paragraphs of the piece from Georgia highlights how the political environment surrounding these discussions have changed in modern times:
Stepping away from a lock-em-up philosophy might have been the equivalent of political suicide in the 1990s, but that’s hardly the case today. Many leading conservatives -- including Newt Gingrich and former Florida Gov. Jeb Bush and many others -- support an approach that de-emphasizes prison for non-violent offenders.
Texas was among the first states to change course. In 2007, facing the need to spend $540 million to build new prisons expected to cost another $1.5 billion to run, the state decided to spend a fraction of the anticipated prison costs on alternative programs for non-violent offenders. Since the change, both the crime rate and the incarceration rate have declined.
In 2010, South Carolina adopted a reform package after lawmakers found that prisons were packed with repeat and non-violent offenders. The changes, projected to save up to $175 million in prison construction costs and $66 million in operating costs over five years, are designed to improve public safety. North Carolina also adopted sweeping legislation last year that will reduce spending on corrections with the goal of increasing public safety through programs that should cut repeat offenses.
[Georgia Gov. Nathan] Deal said changes enacted in other states will give Georgia models to consider. And so far, he said, he is hearing positive responses from lawmakers of all stripes. “As members of the General Assembly continue to see demands placed on them to appropriate more money for incarceration and see the numbers of inmates continue to rise substantially every year,” Deal said, “I think they’re certainly willing to embrace these changes.”
Lamenting the case for scrapping the death penalty in California
Charles Johnson has this op-ed today in Los Angeles Times titled "California's death penalty: Unusual but not cruel; Capital punishment in California should be streamlined, not abolished." Here are excerpts:
Death penalty foes have seized on the cost issue for their latest attempt at killing it off. Led by Natasha Minsker of the ACLU of Northern California, they are gathering signatures to put the so-called SAFE California initiative on the November 2012 ballot. Minsker's co-written report, "California's Death Penalty Is Dead," concedes that it is the appeals process that clogs the courts, noting that "death penalty trials cost up to 20 times more than trials for life imprisonment without the possibility of parole.... Taxpayers are legally required to pay for numerous appeals in death penalty cases, unlike cases involving life without possibility of parole, where the prisoner gets only one taxpayer-funded appeal."
Only 13 death row inmates have been executed since Californians voted, by a 2-to-1 margin to reinstate capital punishment in 1978, over the objections of then-Gov. Jerry Brown, who had previously vetoed it. Californians, like most Americans, like the death penalty and favor it by roughly the same margin they did in 1978. Support softens when life without parole is considered as an alternative, perhaps because of expense issues. Nonetheless, according to a Field Poll in September, 68% of Californians support capital punishment.
One mark of its popularity is how often it is meted out. For all the supposed blood lust of Texans, where more inmates are executed (and more cheaply), California's jurors are twice as likely to sentence criminals to death. According to a Cornell University study, this is because Texas' death penalty sentencing criteria are far more objective than California's; juries in states with "subjective" death penalties — where they take into account heinousness, for example — are twice as likely to impose the death penalty than are states with stricter guidelines.
That subjectivity gives inmates, activists and lawyers just enough wiggle room. Take Robert Alton Harris, the first Californian executed in 25 years. Harris admitted to murdering two boys because he wanted their car for a crime spree. He even finished off the Jack in the Box burgers they were eating. But Harris' lawyers spent 13 years dragging out his appeals. Or consider Randy Kraft, convicted in Orange County's costliest trial of murdering and mutilating 16 young men. Among his contentions on appeal, he has argued that execution would force him to "actively participate in his own killing," violating his 1st Amendment religious protections. Kraft, suspected in 67 killings, has become a champion bridge player on death row....
Meanwhile some lawsuits countering the death penalty have gone from frivolous to farcical. One, filed against the Food and Drug Administration, argues that California's drug supply of sodium thiopental for executions was improperly obtained abroad. It's the FDA's job, the lawyers say, to make sure that even death penalty drugs are safe and reliable.
Those invented dangers don't concern serial wife-killer Jerry Stanley, who after living on death row for 28 years has volunteered to be executed using the three-drug protocol, despite Fogel's apprehensions. "I am willing to be the experimental guy to see whether or not they work," Stanley told The Times. Despite having recently been ruled competent by a judge, Stanley cannot decide how he should meet his end — thanks to what he calls the lawyers' gravy train that stands between him and execution. "I disagreed with trying to get me life when I deserved the death penalty," Stanley says of his court-appointed attorneys 30 years ago. In so arguing, Stanley displays rare sanity in the capital punishment debate.
"There is a point in the history of society when it becomes so pathologically soft and tender that among other things it sides even with those who harm it, criminals, and does this quite seriously and honestly," noted Nietzsche, writing in "Beyond Good and Evil." The voters may test whether we have reached that point, but in any case, we are close to it. Pity California.
This op-ed understandably expresses frustration about the operation of capital punishment in the Golden State, but it does not address the extraordinary political and legal challenges that would be involved in trying to "streamline" the death penalty in California. Given that the state has taken the better part of a decade just to figure out how to develop a constitutional legal injection protocol, I have no confidence it could work through a sound "streamline" in less than a half-century.
January 2, 2012
"Getting Prison Numbers Down — For Good"
The title of this post is the title of this effective, lengthy piece by Malcolm Young appearing at The Crime Report. The piece reviews in detail some state sentencing and corrections reforms, and here are excerpts making some important broader points:
Some commentators are celebrating the decrease in prison population numbers reported for 2010 by the U.S. Bureau of Justice Statistics (BJS) — and they should.
Any attention to mass incarceration is welcome in a nation where prison reformers, community groups, advocates from across the political spectrum, major foundations, and many policymakers favor reducing prison incarceration — currently at levels that have no peacetime historical or international precedent.
Yet despite evidence that the U.S. as a whole may at last have turned away from the annual increases in state prison incarceration that began in the early 1970s, it remains to be seen whether progress toward meaningful reductions will proceed at a pace necessary to have a significant impact on the phenomenon. The basis for broad-based and deep change in sentencing and corrections practices has not yet emerged....
Certainly, the recession has forced policymakers to look to corrections to reduce costs, prompting efforts to reduce incarceration in conservative as well as liberal states: Connecticut, Indiana, Texas, Michigan, New York, Louisiana, South Carolina and Mississippi to name a few.
But the economy as one factor is hardly the same as the economy as an underlying, broad-based engine driving reform. And against “tough on crime” political assaults, fiscal responsibility stands up like a candle in a hurricane....
Even if we apply these lessons from states that have succeeded in reducing prison incarceration, something is still missing. Except among highly committed corrections staff, advocates and a handful of political leaders, it is difficult to discern evidence of a genuine consensus favoring reductions in prison populations.
So far, neither the dollar nor human costs of a massive system of incarceration and its racial and class impacts, have ignited a widespread, energized political or social movement opposite of that which resulted in mass incarceration. This has to be a concern if there is any chance of reversing four decades of prison expansion.
Ripples of burst housing bubble felt now on Georgia's death row
This story from the Atlanta Journal-Constitution explains how "the steep decline in the real estate market and historically low interest rates are the primary causes" for funding problems impacting the representation of Georgia's death row inmates. Here are the details:
This legislative session, the Georgia Appellate Practice and Educational Resource Center will ask for a boost in its funding to keep it from having to lay off lawyers and investigators. The 12-person nonprofit, with spartan offices in the basement of an Inman Park pizza restaurant, represents or assists with the representation of most of the roughly 90 inmates on Georgia’s death row.
“If the resource center loses more employees, it will have to take fewer cases, and there will be some inmates who are unrepresented,” said Atlanta lawyer Rob Remar, chairman of the center’s board. “The likely outcome is that the system will grind to a halt for those people who don’t have lawyers.”
State Rep. Jay Powell, who heads a key House budget subcommittee, said he is aware of the problem. “My feeling is we can be penny wise or pound foolish, because if we don’t pay enough on the front end, we’ll pay more in the back end,” said Powell, a Republican from Camilla. “If appeals aren’t properly handled, the cases drag on.”....
For years, the Georgia Bar Foundation has provided grant money to the resource center and other programs, such as Atlanta Legal Aid and Georgia Legal Services. The foundation gets its funding from interest-bearing trust accounts set up by lawyers to handle real estate transactions and other deals.
Because of the economic downturn, the foundation’s collections have plummeted from more than $900,000 a month in 2007 to about $60,000 a month last year. Three years ago, the foundation gave more than $750,000 to the resource center, and that dropped to $186,917 last year. This year, the foundation was unable to provide any funding.
The Legislature had been providing $800,000 to the resource center annually, but, faced with a budget crisis beginning in 2008, it cut the center’s funding by more than $200,000. In the upcoming session, the center will ask lawmakers to restore its funding to the prior $800,000 level.
January 1, 2012
Some of the big sentencing stories to follow in 2012
Though there were a number of notable sentencing stories over the past 12 months (some year-end reviews can be found here and here), all told the year 2011 struck me as relatively quiet on the sentencing law and policy front. But 2012, in contrast, seems quite likely to include a number of big sentencing stories. Here, in no particular order, are the five biggest sentencing law and policy stories I expect to be following most closely in the months ahead:
1. SCOTUS review of juve LWOP for murderers in Jackson and Miller. The Supreme Court's Graham decision in 2010 declaring unconstitutional all LWOP sentences for juvenile nonhomicide offenders was a watershed ruling which suggested a majority of Justices are ready to give the Eighth Amendment some constitutional bite outside the death penalty. Just how much bite may be revealed through the Jackson and Miller cases to be argued in March in which LWOP sentences given to 14-year-olds convicted of murder will be before the Court. Justice Kennedy may be a key swing vote here, as usual, but Chief Justice Roberts may also play a big role in the wake of his concurring opinion in Graham.
2. USSC and congressional discussion of federal sentencing under advisory guidelines. A subcommittee of the House Judiciary Committee late last year held a hearing in which many Republicans expressed concern about how judges are exercising their post-Booker sentencing discretion. Rumor has it that the US Sentencing Commission has responded to the expressed concerns by planning a public hearing on these issue for February. I would be VERY surprised if any serious statutory sentencing reforms move forward in 2012, but just reform talk in Congress or within the USSC can often impact sentencing developments "on the ground."
3. Talk of crime and punishment (or the lack thereof) in Campaign 2012. The last few national election cycles have had a notable lack of discussion of major domestic crime and punishment issues. In part because Democrats have shifted to the right on the death penalty and other crime issues since the Clinton years, crime and punishment has largely been neutralized as a wedge issue and neither party has seemed too eager to make much of these topics. But 2012 could be different, especially if some of the anti-federal-drug-war libertarian sentiments of candidates like Ron Paul and Gary Johnson get any significant media attention or serious populist traction.
4. Federalism tensions as states continue to move away from pot prohibition. In 2012, it is possible that medical marijuana will be legalized in states with more than half of the US population, and voters in at least a handful of states will be considering ballot initiatives to legalize pot completely. In part because federal pot prohibition seems unlikely to change in 2012, the year-long story will be how state and federal officials interact as states seek to respect local interest in softer pot policies while the feds (sometimes) seek to enforce unbending federal criminal prohibitions.
5. Prison populations and crime rates. Probably the biggest story of 2011 was the report of the first modern (though modest) decline in the national prison population in the US (based on a 2010 accounting). A budget crunch at the state level, which prompted reforms big and small in many states, accounts for this decline, and there is reason to expect these forces will continue in play in the year(s) ahead. Meanwhile, national crime rates continue their historic decline, though some predict that what has been going down now for so long has to at some point start going back up.
Readers are, of course, welcomed and encouraged to comment on these issues and also to mention other big 2012 sentencing law and policy stories to follow.
Notable 2011 criminal caseload data in year-end report by the Chief Justice
The headlines generated by the traditional "Year-End Report on the Federal Judiciary" from the Chief Justice of the United States (collected here at How Appealing) are justifiably all about the Chief's extended discussion of the Court's ethics and recusal policies. But this year's report, which can be accessed here, also it includes these notable criminal justice caseload statistics:
In 2011, caseloads increased in the U.S. district courts and in the probation and pretrial services offices, but decreased in the U.S. appellate and bankruptcy courts. Total case filings in the district courts grew 2% to 367,692. The number of persons under post-conviction supervision rose 2% to 129,780. Cases opened in the pretrial services system also went up 2%, reaching 113,875....
Filings in the regional courts of appeals fell 1.5% to 55,126. Growth occurred in original proceedings and bankruptcy appeals. Appeals arising from the district courts decreased. Although civil appeals remained fairly stable, reductions occurred in many types of criminal appeals....
Although criminal case filings (including transfers) remained stable (up by 12 cases to 78,440), the number of criminal defendants increased 3% to set a new record of 102,931. Growth in filings occurred for defendants 15 charged with drug crimes, general offenses, firearms and explosives offenses, sex offenses, and property offenses.
Filings for defendants charged with immigration offenses fell for the first time since 2006, decreasing 3%. The southwestern border districts accounted for 74% of the Nation’s total immigration defendant filings, up from 73% in 2010....
The 129,780 persons under post-conviction supervision on September 30, 2011, represented an increase of 2% over the total from the previous year. The number of persons serving terms of supervised release after their departure from correctional institutions grew 2% to 105,037, and amounted to 81% of all persons under supervision.
Cases opened in the pretrial services system in 2011, including pretrial diversion cases, rose 2% to 113,875.