March 10, 2012
"Breakthrough Science and the New Rehabilitation"
The title of this post is the title of this notable new article by Professor Meghan J. Ryan. Here is the abstract:
Breakthroughs in pharmacology, genetics, and neuroscience are transforming how society views criminals and thus how society should respond to criminal behavior. Although the criminal law has long been based on notions of culpability, science is undercutting the assumption that offenders are actually responsible for their criminal actions. Further, scientific advances have suggested that criminals can be changed at the biochemical level. The public has become well aware of these advances largely due to pervasive media reporting on these issues and also as a result of the pharmaceutical industry’s incessant advertising of products designed to transform individuals by treating everything from depression to sexual dysfunction. This public familiarity with and expectation of scientific advances has set into motion the resurrection of the penological theory of rehabilitation that has lain dormant since the mid-1970s. The New Rehabilitation that is surfacing, however, differs in form from the rehabilitation of the earlier era by effecting change through biochemical interventions rather than through attempting to change an offender’s character. This raises novel concerns about this New Rehabilitation that must be examined in light of the science that has sparked its revival.
March 9, 2012
How might newer Justices take on Apprendi jurisprudence in Southern Union?
A helpful e-mail from a reader reminded me that I have not blogged enough about the exciting Apprendi doctrine case that the Supreme Court will hear upon its return to oral argument action on March 19. The question presented in Southern Union v. US (SCOTUSblog coverage here) is simple enough: "Whether the Fifth and Sixth Amendment principles that this Court established in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, apply to the imposition of criminal fines." What is not simple is figuring out what the newer SCOTUS justices, particularly Justices Sotomayor and Kagan, think about the Supreme Court's somewhat tortured Apprendi jurisprudence and its application in this setting.
Notably, Chief Justice Roberts has been a consistent vote with those Justices inclined to expand Apprendirights (of which only Scalia and Thomas are still on the Court), as evidenced most clearly by his votes in Cunningham (with the majority) and Ice(with the dissent). Meanwhile, Justice Alito has been a consistent vote with those inclined to limit Apprendi rights, as evidenced most clearly by his votes in Cunningham (with the dissent) and Ice(with the majority). Justice Breyer and Kennedy have been consistent Apprendi haters, but maybe the doctrine will bother them less in this context. And who knows what to expect of Justice Ginsburg in this arena in the wake of Booker and Ice.
Southern Union will present the first crisp opportunity for the two newest Justices to indicate how they view ApprendiFifth and Sixth Amendment rules. If they both join the Roberts, Scalia, Thomas troika in Apprendi-land, Southern Union could possibly have profound long-term implications for all sorts of (financial and other) punishments beyond fines.
Muted version of "Caylee's Law" becomes reality in Florida
Perhaps the last formal legal echo of last year's sensationalized Casey Anthony case is now on the desk of the Governor of Florida, as detailed in this AP news report headlined "Fla. bill inspired by child's death goes to Scott." Here are the interesting specifics which suggest the lawmaking process has actually worked to avoid turning one high-profile case into bad law:
A bill inspired by one of the Florida's most notorious criminal cases, the disappearance and death of 2-year-old Caylee Anthony, went to Gov. Rick Scott on Thursday. The legislation would increase the penalty for making a false statement to police about a missing child from a year in jail to five years in prison.
Caylee's mother, Casey Anthony, last year was acquitted of murdering the toddler but convicted on four counts of lying to investigators about her missing daughter in 2008. She could have received a 20-year sentence if the bill had been in effect then, but she was credited with time served while in jail awaiting trial and released. The bill (HB 37) received a unanimous final vote from the Florida Senate without discussion or debate. It passed the House, also unanimously, on Feb. 29.
After public outrage over Casey Anthony's acquittal, Senate President Mike Haridopolos created the Select Committee on Protecting Florida's Children to determine if any changes should be made in Florida law.
The panel chaired by Sen. Joe Negron, R-Stuart, examined but rejected the idea of setting deadlines for reporting a missing child or the death of a child to authorities as proposed in several other bills, some of them titled "Caylee's Law." Caylee was not reported missing until 31 days after she vanished.
Law enforcement officials said a 24-hour or 48-hour deadline could result in unintended consequences. They were worried parents might misunderstand and think they could not call police until a child had been missing that long. That's already a common misunderstanding although current law does not require parents to hold off on reporting missing children for any period of time, Citrus County Sheriff Jeffery Dawsy told Negron's panel in October....
That hasn't stopped lawmakers in at least 16 other states from also considering Caylee's Law legislation setting such deadlines. As in Florida, though, many of those efforts have failed or stalled over worries the proposals were too broad, and in some cases, not necessary.
Law enforcement officials say it is rare that a missing or deceased child is not reported. It mainly happens when the parent or caregiver has some culpability, Manatee County Sheriff's Maj. Connie Shingledecker told the Senate panel.
Eighty-five percent of the 40,000 missing child reports received in Florida annually are due to runaways and many children generate multiple reports, said Mike Ramage, general counsel of the Florida Department of Law Enforcement. He said only 1 percent of missing children are under 10 and just 2 percent are endangered. "Prior to the Caylee situation we had not been hearing a great deal of fury of the need to change the law," Ramage told lawmakers, urging them not to react to a single case.
The Florida bill does not even use the term "Caylee's Law," and during his panel's hearings, Negron studiously avoided mentioning Caylee or Casey Anthony, referring to it only as "the Orlando case" or the "Orange County case." "Our charge was really to look at the whole system," Negron said. "Our purpose isn't to second-guess a particular jury."
Tipping point?: Pat Robertson joins crowd eager to end pot prohibition
I have long thought that true conservatives and not just libertarians ought to be drawn to arguments for ending modern pot prohibitions, and the news this week that Pat Robertson joined the chorus calling for marijuana legalization seems to confirm my political instincts here. This new Time piece provides some context for this story under the headline "How a Far-Right Icon Came to Embrace Marijuana Legalization: Pat Robertson wants to decriminalize the use of marijuana. Here's why.":
The other day, we got solid proof that the media is biased toward the left. On a cable-news show seen by millions, a white-haired host declared that although the U.S. has 5% of the world’s population, it detains a quarter of the world’s prisoners. “I just think it’s shocking to see how many of these young people wind up in prison,” he said. “And then they get turned into hard-core criminals because they have possession of a small amount of a controlled substance. The whole thing is crazy.”
It’s a sensible position. Strikingly, it came from the host of the Christian Broadcasting Network’s “700 Club” — right-wing icon Pat Robertson. He went on to say that mere possession of pot should be decriminalized. The 40-year-old “700 Club” isn’t known for advancing liberal causes....
Robertson has crept slowly into his pro-legalization position on marijuana. In 2010, he said on the “700 Club” that people shouldn’t get long prison terms for taking “a couple puffs of marijuana.” Shortly afterward, his New York City-based spokesman, Chris Roslan, issued a statement saying Robertson “unequivocally” opposes the use of any drugs. And yet when I spoke with Roslan on Thursday, he told me that Robertson now favors decriminalization of pot smoking.
“If people can go into a liquor store and buy a bottle of alcohol and drink at home legally, then why do we say that the use of this other substance is somehow criminal?” Robertson asked a New York Times reporter recently. He went on to say that imprisoning people made it more it more difficult to reach their hearts with a Christian message....
[T]here’s little evidence that marijuana is dangerous (and as Robertson points out, accurately, it’s certainly no more dangerous than alcohol). There’s also a decent body of evidence that pot has health benefits when used in moderation. In virtually every study, marijuana proves to be far less addictive than alcohol, let alone drugs like cocaine or heroin (here is one good summary — scroll down to the comparative ratings). Smoking marijuana does carry the same risks as smoking tobacco — lung and esophageal cancers — but there’s no good data showing that these risks outweigh the risks of liver problems from drinking....
Liberal advocates who work for a treatment-based approach to addiction rather than an incarceration approach have hailed Robertson’s comments as common sense in the debate over drugs. But most conservatives have remained silent since his call for legalization. The Christian-right group Focus on the Family released a quiet statement reiterating its opposition to drug legalization. Still, maybe Robertson’s comments will push some of his viewers to reconsider the hard-line approach to drug policy so dominant on the right since at least the ’60s, when “The 700 Club” first went on the air. If Pat Robertson can be convinced that marijuana should be decriminalized, that may give cover to G.O.P. members of Congress who are already wavering on the issue.
As the title to my post hints, I cannot help but wonder if (and hope that) Robertson's new advocacy on this front might serve as something of a tipping point on some of the recent modern debates over pot policy. If pot legalization advocate were shrewd, they can and should see what they can do to make Robertson the face of their movement, especially in places like Colorado where having significant evangelical support for ending pot prohibition might be the key to having a ballot initiative on this front succeed.
A variety of pot legalization advocates have done a good job pressing their issues in various on-line political settings, but the involvement of (one-time presidential candidate) Robertson presents lots of new advocacy potential. I certainly think all major GOP figures — ranging from candidates like Romney and Santorum to high-profile former candidates like Palin and Huckabee to current leaders like Boehner and Cantor — ought to be asked repeated and pointed questions about whether they agree with Robertson's views on pot policy and mass incarceration. (Perhaps they should also be asked, with tongue only party in cheek, whether think the Obama Administration's ugly record on pot policy is really just a key part of its "war on religion.")
Some recent and older related posts:
- Initiative to end state pot prohibition officially makes 2012 ballot in Colorado
- "Record-High 50% of Americans Favor Legalizing Marijuana Use"
- Notable new pot legalization poll numbers from two states
- New Huff Post pieces on presidential pot policy and politics
- Two state govs request that feds reclassify pot to ease medical use
- "Marijuana questions dominate White House online chat -- again"
- "Pot legalization efforts forge ahead in key states"
- Fascinating NPR piece on how feds have ended local innovation on pot regulation
- "Obama's War on Pot"
- Marijuana legalization advocate getting warm reception at CPAC
March 8, 2012
Via 6-3 vote, Mississippi Supreme Court upholds controversial pardon spree by outgoing Governor
As reported in this AP article, "The Mississippi Supreme Court on Thursday upheld the pardons issued by former Gov. Haley Barbour during his final days in office, including those of four convicted killers and a robber who had worked at the Governor's Mansion." Here is more about the ruling and some reactions to it:
In their 6-3 opinion, the Mississippi Supreme Court wrote "we are compelled to hold that -- in each of the cases before us -- it fell to the governor alone to decide whether the Constitution's publication requirement was met." The court also said it couldn't overturn the pardons because of the Constitution's separation of powers of the different branches of government.
"In this decision, the Supreme Court has reaffirmed more than a century of settled law in our state. But this was not only about the power of the pardon or even the power of the office, but about the ability of a governor to grant mercy," Barbour said in a statement.
The Supreme Court's ruling hit crime victims hard. "I hope Haley Barbour and the Supreme Court justices can sleep at night," said Joann Martin, a probation officer from Fort Worth, Texas, whose sister was killed by one of the pardoned trusties....
[Mississippi Attorney General Jim] Hood said in a statement that he will pursue an initiative to amend the Constitution "to make it very clear that the judicial branch is responsible for enforcing the 30-day notification period in the future" and called on victims groups, law enforcement and other volunteers to help obtain signatures to put a measure on the ballot. "We do respect the decision of the court, but feel deeply for how it must weigh on the victims and their families. It is these victims and family members who have lost today and the criminals who have won," Hood said.
"As Supreme Court Justice Mike Randolph wrote in his dissent, which was supported by Chief Justice William Waller and Justice Randy Pierce: 'Today's decision is a stunning victory for some lawless convicted felons, and an immeasurable loss for the law-abiding citizens of our State.'"
Barbour's statement said he understands "the natural feelings of victims and their families" and recognizes that pardons are generally unpopular. "Nevertheless, these were decisions based on repentance, rehabilitation, and redemption, leading to forgiveness and the right defined and given by the state constitution to the governor to offer such people a second chance," he said....
In the end, a majority of the Supreme Court said it was up to the governor to decide if the pardoned inmates did what they were supposed to do. In addition to the pardons issued in his final days in office, Barbour also granted medical release and conditional clemency to some inmates, but they weren't required to give public notice of their release.
All the opinions in this case from the Mississippi Supreme Court run 77 pages and can be accessed at this link.
Recent related posts:
- On way out door, Mississippi Gov. Haley Barbour pardons five serious offenders who worked at the Governor's Mansion
- "Did Haley Barbour's pardon spree go too far?"
- Mississippi state judge blocks some of out-going Gov. Barbour's controversial pardons
- "Barbour ‘At Peace’ with Pardons, but Scandal Rages On"
- Former Gov Haley Barbour explains "Why I released 26 prisoners"
Two more executions in Arizona and Texas
Readers with good memories may recall that Arizona and Texas closed out February with a pair of executions (as reported in this post). Now, as the following headlines and stories report, these two states have also been the first to conduct executions in March:
Despite the efforts by these two states, the United States is still on pace for a relatively low number of executions in 2012 unless and until Ohio and perhaps a few other states get back into the execution business.
The Constituton Project calls upon Congress to reform federal criminal discovery
I received today via e-mail a link to this new lengthy statement coming from a panel of experts assembled by The Constitution Project. The statement urges Congress to pass legislation to ensure federal prosecutors adhere to Brady obligations, and here are excerpts from the start and end of the statement:
We, the undersigned, are current and former judges, prosecutors, law enforcement officers, defense lawyers and others, all with substantial professional experience within the criminal justice system. We call upon Congress to address the persistent problems with discovery in the federal criminal justice system by immediately enacting legislation that clarifies federal prosecutors’ obligations to disclose information to the defense and that provides appropriate remedies when prosecutors fail to do so.
Over the past few years, we have seen a troubling number of cases involving failures to disclose evidence to the defense pursuant to Brady v. Maryland and its progeny....
We have concluded that Brady violations, whether intentional or inadvertent, have occurred for too long and with sufficient frequency that Congress must act. Self-regulation by the DOJ has been tried and has failed. It is ultimately not a solution to the injustices that continue to occur. Nor is an amendment to the Federal Rules of Criminal Procedure a solution. Such a proposal has been considered at least twice by the Advisory Committee on the Rules of Criminal Procedure, only to be rejected by either the Advisory Committee or the full Standing Committee on Rules of Practice and Procedure, at least partly in deference to the DOJ’s attempts to address the issue internally. But, again, DOJ’s own internal efforts have not remedied the problem.
Only federal legislation can adequately address these continued violations by federal prosecutors, creating a uniform standard for what must be disclosed and what remedies will exist for non-disclosure, and sending a strong message to the DOJ that there will be consequences when federal prosecutors violate their discovery obligations....
The time has come for Congress to act. Clarifying Brady obligations will ultimately strengthen effective law enforcement. All previous attempts to cure this problem — a problem that goes to the heart of the fairness and accuracy of the criminal justice system — have failed. Nothing short of the legislation described above is adequate, and we urge Congress to take immediate action to enact it.
"From Peer-to-Peer Networks to Cloud Computing: How Technology Is Redefining Child Pornography Laws"
The title of this post is the title of this new article now available via SSRN by Professor Audrey Rogers. Here is the abstract:
Child pornography circulating in cyberspace has ballooned into the millions. To punish this flood, the law must accurately delineate culpable conduct. Technology such as peer-to-peer networks has erased the divisions among traders of child pornography, and, therefore, the differentials in punishment have lost their underpinnings. The current sentencing controversy surrounding child pornographers is merely the tip of the iceberg of the larger need to revamp the offenses themselves.
This paper provides a framework for a normative critique of the offenses and their sentences. It suggests the law could better reflect technology by comporting with a refined harm rationale that rests on the fundamental injury to the victim’s dignity and privacy. Drawing on comparisons to diverse laws such as the Geneva Convention’s ban on photographs of prisoners of war, this paper states all traders in child pornography violate the rights of the children depicted and therefore inflict harm, albeit at different levels. Accordingly, the paper proposes three categories: producers, traders, and seekers of child pornography with base sentences varying accordingly. Starting at the same base level, the Sentencing Commission could then propose enhancements or departures to distinguish among the traders and their individual culpability.
March 7, 2012
Notable FPD fact sheet says "TRAC Analysis of Variations in Sentencing Misses the Mark"
The afternoon I received an effective brief "Fact Sheet" produced by some federal public defenders which discusses limits on the federal sentencing data released by TRAC earlier this week. The full two-page fact sheet, which is titled "TRAC Analysis of Variations in Sentencing Misses the Mark" and can be downloaded below, gets started this way:
On March 5, 2012, the Transactional Records Access Clearinghouse (TRAC) announced “Wide Variations Seen in Federal Sentencing.” The press release accompanying TRAC’s report stated it had discovered “extensive and hard-to-explain variations in the sentencing practices of district court judges.” Media reports claimed “widely disparate sentences for similar crimes.” (AP)
The data released by TRAC might in the future shed light on federal sentencing, but its initial analyses, and media coverage, demonstrate the danger of a little knowledge about a complex subject. TRAC’s analysis fails to meet minimal academic standards and should not be a basis for policy making.
The cases sentenced by the judges in the study are not similar.
- The only similarity among the cases sentenced in each district is that prosecutors categorized them as “drug,” “white collar,” etc. All other case differences are ignored. Heroin or marijuana cases, involving 1 gram or 1 ton, are all called “similar” drug cases. First-time offenders are lumped with lifetime criminals.
- Academic researchers studying disparity use data from the U. S. Sentencing Commission to categorize cases along dozens of different variables, but this data was not used in TRAC’s analysis.
The intra-district comparisons intended to control for differences among cases are flawed.
- The study compared median (half below, half above) sentences among judges in a particular district, on the assumption that these judges sentenced similar types of cases. But this is often untrue.
- Many districts have several courthouses in different cities, which sentence very different types of crimes. Average sentences should be different among judges who sentence different types of offenses and offenders.
- Academic researchers faced with this problem are careful to compare only judges in the same courthouse who are part of the same random case assignment pool. This helps compensate for individual case differences in the long run.
Recent related posts:
- New TRAC federal sentencing data (with judge identifiers!) highlights post-Booker variations
- "Surprising Judge-to-Judge Variations Documented In Federal Sentencing"
- Trying to unpack the new federal sentencing data from TRAC
"Drug Policy as Race Policy: Best Seller Galvanizes the Debate"
The title of this post is the headline of this interesting piece in today's New York Times concerning the public and scholarly discourse engendered by my OSU colleague Michelle Alexander's must-read book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness. Here are excerpts:
Garry McCarthy, a 30-year veteran of law enforcement, did not expect to hear anything too startling when he appeared at a conference on drug policy organized last year by an African-American minister in Newark, where he was the police director.
But then a law professor named Michelle Alexander took the stage and delivered an impassioned speech attacking the war on drugs as a system of racial control comparable to slavery and Jim Crow — and received a two-minute standing ovation from the 500 people in the audience. “These were not young people living in high-crime neighborhoods,” Mr. McCarthy, now police superintendent in Chicago, recalled in telephone interview. “This was the black middle class.”...During the past two years Professor Alexander has been provoking such moments across the country — and across the political spectrum — with her book, “The New Jim Crow: Mass Incarceration in the Age of Colorblindness,” which has become a surprise best seller since its paperback version came out in January. Sales have totaled some 175,000 copies after an initial hardcover printing of a mere 3,000, according to the publisher, the New Press.
The book marshals pages of statistics and legal citations to argue that the get-tough approach to crime that began in the Nixon administration and intensified with Ronald Reagan’s declaration of the war on drugs has devastated black America. Today, Professor Alexander writes, nearly one-third of black men are likely to spend time in prison at some point, only to find themselves falling into permanent second-class citizenship after they get out. That is a familiar argument made by many critics of the criminal justice system, but Professor Alexander’s book goes further, asserting that the crackdown was less a response to the actual explosion of violent crime than a deliberate effort to push back the gains of the civil rights movement.
For many African-Americans, the book — which has spent six weeks on the New York Times paperback nonfiction best-seller list — gives eloquent and urgent expression to deep feelings that the criminal justice system is stacked against them. “Everyone in the African-American community had been seeing exactly what she is talking about but couldn’t put it into words,” said Phillip Jackson, executive director of the Black Star Project, an educational advocacy group in Chicago....
The book is also galvanizing white readers, including some who might question its portrayal of the war on drugs as a continuation of race war by other means. “The book is helping white folks who otherwise would have simply dismissed that idea understand why so many people believe it,” said David M. Kennedy, director of the Center for Crime Prevention and Control at the John Jay College of Criminal Justice. “It is making them take that seriously.”
“The New Jim Crow” arrives at a receptive moment, when declining crime rates and exploding prison budgets have made conservatives and liberals alike more ready to question the wisdom of keeping nearly 1 in 100 Americans behind bars....Whatever Professor Alexander’s account of the origins of mass incarceration, her overall depiction of its human costs is resonating even with people who disagree with her politics.
Rick Olson, a state representative in Michigan, was one of the few whites and few Republicans in the room when Professor Alexander gave a talk sponsored by the state’s black caucus in January. “I had never before connected the dots between the drug war, unequal enforcement, and how that reinforces poverty,” Representative Olson said. “I thought, ‘Gee whiz, let me get this book.’ ” Reading it, he said, inspired him to draft a bill decriminalizing the use and possession of marijuana....
In an article to be published next month in The New York University Law Review, James Forman Jr., a clinical professor at Yale Law School and a former public defender, calls mass incarceration a social disaster but challenges what he calls Professor Alexander’s “myopic” focus on the war on drugs.
Painting the war on drugs as mainly a backlash against the gains of the civil rights movement, Professor Forman writes, ignores the violent crime wave of the 1970s and minimizes the support among many African-Americans for get-tough measures. Furthermore, he argues, drug offenders make up less than 25 percent of the nation’s total prison population, while violent offenders — who receive little mention in “The New Jim Crow” — make up a much larger share. “Even if every single one of these drug offenders were released tomorrow,” he writes, “the United States would still have the world’s largest prison system.”
To Professor Alexander, however, that argument neglects the full scope of the problem. Our criminal “caste system,” as she calls it, affects not just the 2.3 million people behind bars, but also the 4.8 million others on probation or parole (predominately for nonviolent offenses), to say nothing of the millions more whose criminal records stigmatize them for life. “This system depends on the prison label, not just prison time,” she said.
In a telephone interview, Professor Forman, a son of the civil rights leader James Forman, praised the book’s “spectacular” success in raising awareness of the issue. And some activists say their political differences with Professor Alexander’s account matter less than the overall picture she paints of a brutal and unjust system.
Craig M. DeRoche, director of external affairs at the Justice Fellowship, the advocacy arm of Prison Fellowship, a Christian ministry founded by the former Nixon aide Charles Colson, said he rejected the political history in “The New Jim Crow” but still considered it essential reading for conservatives. “The facts are the facts,” he said. “The numbers are the numbers.”
Some recent related posts:
- "The New Jim Crow: Mass Incarceration in the Age of Colorblindness"
- "Racial Critiques of Mass Incarceration: Beyond the New Jim Crow"
- NPR's Fresh Air celebrates MLK Day by discussing The New Jim Crow
Should sentencing fans support or oppose idea to scuttle judicial life tenure?
The question in the title of this post is prompted by this new opinion piece at Politico authored by Professor Herman Schwartz, which is headlined "Scuttle SCOTUS's life tenure." Here are excerpts from the potent piece:
Life tenure for Supreme Court justices does not belong in a democracy.
It gives an unelected public official immense power for decades over the lives of hundreds of millions of people without any accountability. It should be abolished and replaced with a single, nonrenewable term of approximately 15 years.
The justices are among the most powerful people on the planet. Their mandate reaches into every corner of American life — and even abroad. Much of the time, they operate in secrecy — some of it necessary, but in many respects not. They are treated with enormous respect, even awe, yet their lives are largely isolated from those they influence, making it hard for them to understand what most people deal with.
They can remain in office until they die or choose to leave. Congress has also given the justices virtually complete control over their workload. With few exceptions, they decide which cases they hear and how many. Since the 1980s, the court’s docket has shrunk from approximately 150 each term to the current 70-80 with no explanation....
Accidents of history have long concentrated Supreme Court’s power even more — often in just one justice. During the past 40 years, the conservative justices have usually had a narrow 5-4 majority on most controversial issues, but usually one particular conservative justice has occasionally voted with the liberals....
Yet justices are not accountable for their decisions to either the political branches or the electorate. Though Congress can theoretically overturn the court’s nonconstitutional decisions, it rarely does.
Such great, unaccountable power is anomalous in a democracy, but it is the price we pay for judicial independence. Independence does not, however, require that those who exercise such power do so until they die or choose to retire, which can be 30 to 40 years.
No other democracy in the world allows its judges such longevity. All mandate retirement at age 65 or 75, or a specific term of years. Every state but Rhode Island has also done so.
The price of life tenure is high. The last 10 justices to leave the court, either by death or by retirement, served an average of 26.4 years. Three served more than 30 years; four served 23 or more years, and one, David Souter, 19. Only Lewis Powell served a typical judicial term — 15 years.
By contrast, from 1789 to 1970, justices served an average of 15 years and retired at 68. The 10 most recent justices to leave court averaged 80.6 years. Six were 80 and older, Chief Justice Warren Burger was 79 and Sandra Day O’Connor and Byron White were 76. Only Souter left at a standard retirement age, 70.
No one, particularly not an unaccountable public servant in a democracy, should have such great power for so long. The Framers could not have foreseen that this would happen. Life expectancy in 1787 was far shorter and the job, which involved “riding circuit” on terrible roads over long distances, was not easy. The first 10 justices, for example, served an average of less than eight years.
The results of recent longevity have not been good. Power breeds arrogance — and Supreme Court justices are not immune.... Mental rigidity may accompany old age — which can make older people reluctant to understand the fast-moving technological, social and economic changes of the past 50 years. Mental capacities may also wane....
Life tenure can also produce an uneven allocation of appointments among presidents. It enables the justices to try to influence the appointment of like-minded successors by strategically timing resignations, which is now a common occurrence. When illness or death forces a departure, mere chance prevails. As a result, William Howard Taft had six appointments in his single presidential term, but Bill Clinton had only two during his eight years.
Many law professors, members of Congress, leading lawyers and even some Supreme Court justices have long called for an end to what University of Texas law professor Lucas Powe has called “the Framers’ greatest lasting mistake.” Many proposals set retirement at 70 or 75. But that won’t necessarily reduce lengthy tenures, because justices can be appointed in their 40s and early 50s.
The strongest suggestion is a single, nonrenewable term of approximately 15 years, a practice that many other courts with constitutional jurisdiction follow. The openings could be set at staggered intervals. Judicial independence is essential to a democracy, but life tenure is not. It is time we corrected the Framers’ mistake.
I find this argument pretty compelling on a number of fronts, although I fear there is little chance that a change along these lines can/will be happening any time soon. Still, if everyone outside the Beltway were to get behind this idea, one never knows. And, among the potential benefits, a fixed limited SCOTUS term for justices might calm down a bit the fights over judicial appointments.
In addition, as my post-title question suggests, I am interested in hearing from readers as to whether they also think this seemingly reasonable pitch for fixed 15-year appointment terms ought also apply to federal circuit and district judges. After all, I think concerns about arrogance and rigidity are also appropriate when considering circuit and district judges who have been on the federal bench for decades.
Washington Post calls for Maryland to end its "broken death penalty"
This morning's Washington Post has this editorial headlined "Maryland’s broken death penalty." Here are excerpts:
On paper, Maryland courts are empowered to impose the death penalty in certain murder cases. In practice, the state’s death penalty is in remission. Five convicts remain on death row, and defendants can be prosecuted for capital murder and sentenced to death, but the state lacks any legal method of carrying out executions. No one has been put to death in Maryland since 2005.
That status quo seems acceptable to the power brokers in Annapolis, who would rather not add to a list of controversies that now includes legalizing same-sex marriage and subsidizing higher education for illegal immigrants.
But by ducking the issue, they are leaving in place a costly, inefficient, unjust and dysfunctional system that exacts a terrible toll on the families of murder victims. Rather than legislating and leading, state lawmakers are in denial....
The broken system is particularly burdensome for the families of murder victims, who face years, even decades, of litigation. Three of the state’s five death-row prisoners were sentenced nearly 30 years ago; the others were sentenced in the mid-1990s.
Whatever moral convictions one holds about capital punishment — and we think it is wrong — Maryland has failed to find an evenhanded, just and fair-minded way to apply it. As a recent report by some of Maryland’s most prominent attorneys concluded, the state’s current law “is likely to increase the arbitrariness of the imposition of the death penalty because persons who commit the most heinous crimes — the ‘worst of the worst’ — are not necessarily the same people who will be eligible for the death penalty.”
A majority of the Maryland General Assembly favors an end to capital punishment in the state. Still, legislative leaders are reluctant to allow consideration of a bill that would repeal the death penalty and shift the anticipated savings in the state budget to programs to benefit victims’ families. The leaders would rather leave in place a system that is a disgrace to justice, and to Maryland.
March 6, 2012
RI judge imposes lifetime driving ban on teenager for serious reckless crash
I just came across this remarkable local story, headlined "RI teenager gets license revoked for life," of a harsh alternative sentence handed down by a judge in Rhode Island. Here are the basic details:
A judge in Rhode Island revoked a teenager's license forever after a serious car accident, saying his intent was to send a message about reckless driving. "If you're going to drive dangerously in Rhode Island and you're a young person, this court is going to respond accordingly," Chief Magistrate William Guglietta from the Rhode Island Traffic Tribunal said.
According to authorities, 17-year-old Lyle Topa crashed into a tree while driving in Charlestown, R.I., in October with three passengers in his vehicle. Police stated that the teenagers were at party where alcohol was consumed before the accident.
"The law in this case allows this court to impose that penalty," Guglietta said. "If they think that more stringent penalties are important for drunk driving, then I'm assuming at some point in time, those issues will be raised with the legislature."
While no one died in the accident, one passenger remained in a coma for weeks. Topa pleaded guilty in court to several charges, including driving over the speed limit and not wearing a seat belt. Guglietta dropped several charges as part of a plea deal.
This cursory story and some other follow-up pieces (like this one from Massachusetts) leave me somewhat uncertain about my view on this harsh and novel alternative sanction. As regular readers may guess, I like the deterrence-seeking toughness of this sentencing response to what appears to have been a tragic drunk driving incident and I like that toughness is being express in a form other than wasteful incarceration. But a lifetime ban on driving strike me as going a bit too far, especially because this ban seems potentially very restrictive to the defendant's long-term liberty and life prospects. Though I would want more facts and more of an understanding of the judge's sentencing options, I am inclined to call this alternative sanction to be too much of a good thing.
ACCA en banc denial splits Fourth Circuit 7-7 and produces sharp opinions
A helpful reader alerted me to the series of notable opinion emerging from the Fourth Circuit today to accompany this order denying rehearing en banc in a case involving application of the Armed Career Criminal Act. The first two paragraphs of a dissent by Judge Davis provides a window into the strong feelings that this case has obviously engendered:
Injustice comes in many forms. It is insidious. It chokes persons and their communities alike. It besmirches legislators, prosecutors, and yes, judges, alike. It undermines public confidence in government and its institutions. It mocks our national commitment to the ideal of evenhandedness and fairness. And, when it is the product of an unwarranted and inexplicable deviation from settled standards, it holds hands with iniquity.
I am persuaded that this case presents a profound exemplar of injustice, and I deeply regret the court’s refusal to rehear this case en banc. I am honored to join in the elegant dissenting opinion of my good colleague, Judge Motz. Judge Motz conclusively demonstrates that the panel majority in this case has deviated from Supreme Court precedent and thereby inflicted a grievous harm on Appellant Foster and, frankly, on the rule of law. I offer this additional critique of the panel majority’s handiwork as further illustration of how injustice so infects the outcome of this proceeding.
Obviously, a number of Fourth Circuit judges do not see this matter the same way as Judge Davis, and Judge Wilkinson provides this different perspective in the last two paragraphs of his concurrence in the denial of en banc review:
I recognize that interpreting the ACCA is not always easily accomplished, and I sympathize with the many jurists who have rightly pointed out its imprecise phraseology and interpretive difficulty. But such challenges come with the territory, and we lack the authority to declare war on statutes we may find distasteful. The dissenters decry the result here as "tragic." See post at 13 (Motz, J.). I certainly respect their right to hold this view, but it has no bearing on the legal question before us. Theirs is a policy disagreement with the ACCA to be taken up with Congress. If Congress wishes to permit felons to carry certain firearms or to disqualify certain predicate offenses after the passage of time, it can surely do so, but it has created no such exemptions applicable to this case. Congress had a legitimate purpose in mind when it sought to protect the public from violent acts committed by those with a violent criminal history. The statute has an awkward name and the means chosen to pursue its purpose have assuredly created headaches for this fine court and others, but that does not confer on us a warrant — constitutional or otherwise — to eviscerate its aims and displace with our own will the democratic legitimacy accorded by our founding document to others.
There are worse fates for a judicial decision than to have it align with the practical virtues of logic and common sense. The term "objective reasonableness" is much in vogue these days, and properly so. See, e.g., Davis v. United States, 131 S. Ct. 2419 (2011) (holding that a need "to prevent Fourth Amendment law from becoming ossified," id. at 2433, cannot overcome objectively reasonable reliance on the law in force at the time of a search). Objective reasonableness presupposes that courts do not allow the occasional medieval tendencies present in all professions to separate us so thoroughly from good logic that our decisions drive citizens to rubbing their eyes and scratching their heads. If one were to inquire of an objectively reasonable person on the street whether something named the Sunrise-Sunset Restaurant was a building or structure as opposed to a river craft or railroad car, the response would be "Of course. Why do you ask?" We ask because the generic approach of modified categorical analysis requires us to, and the Supreme Court has commended to us common sense in answering. That is precisely what the panel majority has done, and it is why I am pleased to concur in the denial of the petition for rehearing en banc.
Time to start gearing up for another high-profile mega Ponzi scheme sentencing
This New York Times article, headlined "Jury Convicts Stanford in $7 Billion Ponzi Fraud," reports on a high-profile federal conviction that creates the foundation for a future high-profile federal sentencing. Here are the basics:
A federal jury on Tuesday convicted R. Allen Stanford, a Texas financier, on 13 out of 14 counts of fraud in connection with a worldwide fraud that lasted more than two decades and involved more than $7 billion in investments.
The ruling came after jurors on Monday sent the judge a note, one of several since deliberations began Feb. 29, saying they were unable to reach a unanimous verdict on all 14 counts. The judge ordered them to continue deliberating.
The jury decision came three years after Mr. Stanford was accused of defrauding nearly 30,000 investors in 113 countries in a Ponzi scheme involving $7 billion in fraudulent high-interest certificates of deposit at the Stanford International Bank, which was based on the Caribbean island of Antigua. Prosecutors argued that Mr. Stanford had lied for more than two decades, promoting safe investments for money that he channeled into an unimaginably luxurious lifestyle, a secret Swiss bank account and half-baked business deals that consistently lost money.
The prosecutors heavily relied on James M. Davis, Mr. Stanford’s old roommate from Baylor University, who served as his chief financial officer. Mr. Davis testified that the Stanford business empire was a fraud complete with bribes for Antiguan regulators and schemes to cover up operations from federal investigators. He described how Mr. Stanford had sent him to London to send a fax to a prospective client from a bogus insurance company office to reassure him that his investment would be safe.
“There really is no dispute that Allen Stanford lied,” a federal prosecutor, William J. Stellmach, told the jurors in his closing argument, “lining his pockets with billions of dollars of other people’s money.” Another prosecutor, Gregg Costa, compared Mr. Stanford to Bernard L. Madoff, who is in a federal penitentiary for orchestrating an even larger Ponzi scheme until his empire collapsed four years ago.
The defense denied those charges, basing their case on the fact that Mr. Stanford’s clients were paid on schedule until the Securities and Exchange Commission made the first allegations three years ago, destroying the value of his businesses. His lawyers repeatedly pointed out that his investment literature said a loss of principal was possible and that Mr. Stanford’s assets still had value when his businesses were shut down by the federal government. In their opening arguments, they suggested that Mr. Stanford would testify in his own defense, but after days of preparing him, the defense decided to rest its case without putting Mr. Stanford on the stand....
Mr. Stanford is no longer the swaggering financier who only three years ago had an estimated fortune of more than $2 billion, a knighthood awarded by Antigua and a collection of yachts, jets and mansions. He even owned his own professional cricket team and stadium and, according to prosecutors, he treated Antigua like his personal business haven, with politicians and regulators in tow, through bribes and political campaign contributions....
It took three years to bring Mr. Stanford to trial because he was severely beaten in a 2010 brawl with another federal inmate in a prison outside Houston and then became addicted to prescription anti-stress drugs. He underwent a year of therapy before Judge David Hittner of United States District Court ruled that he was fit to stand trial. The defense had said he could not properly defend himself because he had lost much of his memory.
I predict that the feds will eventually seek a sentence in this case on par or even more severe than what Bernie Madoff received (because Stanford put the government up to its proof burden, while Madoff pleaded guilty). I further predict that Stanford's lawyers will request a sentence limited enough to at least give Stanford a chance at eventual relief. And, to complete the prediction, I expect the judge will ultimately impose a sentence that ensures Stanford, like Madoff, will die in federal prison.
Former Maryland Governor setting up law school pardon clinic and training program
As reported here by the Washington Post, in "former Maryland governor Robert L. Ehrlich (R) plans to launch the nation’s first law school clinic and training program devoted to pardons." Here is more from the article:
Ehrlich’s proposal takes aim at the inequities identified by ProPublica’s investigation into the dispensation of presidential pardons over the past decade. White applicants were nearly four times as likely to receive forgiveness as minorities, the ProPublica analysis showed. African Americans had the worst chances of being pardoned. Applicants with congressional support were three times as likely to receive pardons as those without it.
Ehrlich, who granted clemency to more than 200 convicts while in office from 2003 to 2007, said a pardons program would help disadvantaged applicants and give law school students experience dealing with people seeking a second chance, fostering “a sense of fairness and justice.”
“It would be a multi-pronged approach, including advocacy, public education and training,” said Ehrlich, who works in the D.C. office of King & Spalding, the Atlanta-based law firm. He also envisions the program as a place “where newly elected governors, their general counsels or chiefs of staff would also come and think about the pardon power.”
Ehrlich said he intends to contribute to the program and raise funds for it. He is working to find it a home, looking at Georgetown law school and George Washington University, as well as other institutions in the Washington area.
Gregory B. Craig, who served as President Obama’s first White House counsel, said Ehrlich’s plan could help level the odds for pardon applicants lacking financial means and might spur presidents and governors to dispense more pardons overall. “Pardons have fallen into disuse,” he said. “They have deteriorated and need to be restored.”
Craig advocated for pardon reform while in the White House, assigning a group of lawyers to design a process that would make pardons more attainable. Among the options discussed was support for a law school clinic.
But none of the pardon reforms formulated early in the administration have advanced. Kathryn Ruemmler, who became Obama’s third White House counsel in June, was among the lawyers who worked with Craig on them. Obama has turned down more pardon applicants, 1,019, and pardoned fewer, 22 — two of whom were minorities — than any modern president at this point in an administration....
Ehrlich’s proposal is modeled in part after the country’s only law school clinic for commutations, started a year ago at the University of St. Thomas law school in Minneapolis. The commutations program is run by Mark Osler, a former federal prosecutor who has argued numerous cases before the Supreme Court.
Osler’s students travel around the country interviewing federal prisoners, examining their criminal cases and filing applications on their behalf. Because pardon seekers must wait five years after completing their sentences before applying for presidential pardons, a law clinic to help them might face fewer hurdles, Osler said. “With pardons, you would have the advantage of not sending students into prisons,” he said.
Ehrlich’s program would put law students to work much in the way Osler has, but it also would host training seminars for governors and their staff members, along with an annual symposium on pardons.
Sounds like a great idea at a time when this kind of work and initiative is badly needed. Kudos to Gov. Erlich.
"Reallocating Justice Resources: a Review of 2011 State Sentencing Trends"
The title of this post is the title of this new report from the Vera Institute of Justice, which seeks to review the lessons from 14 states that have responded to the budget crunch by passing research-driven sentencing and corrections reform in 2011. Here is the start of the report's executive summary:
Most states are facing budget crises, and criminal justice agencies are not exempt. With fewer dollars available, they are challenged to increase public safety while coping with smaller budgets. This report distills lessons from 14 states that passed research-driven sentencing and corrections reform in 2011 and is based on interviews with stakeholders and experts, and the experience of technical assistance staff at the Vera Institute of Justice. It is intended to serve as a guide to policy makers and others interested in pursuing evidence-based justice reform in their jurisdiction.
Legislatures throughout the United States enacted sentencing and corrections policy changes in 2011 that were based on data analysis of their prison populations and the growing body of research on practices that can reduce recidivism. Although this emphasis on using evidence to inform practice is not new in criminal justice, legislators are increasingly relying on this science to guide the use of taxpayer dollars more effectively to improve public safety outcomes.
In highlighting important legislative changes enacted in the past year, this report documents a new approach to reform in which bipartisan, multidisciplinary policy groups are using analysis of state population and sentencing data, harnessing the political will emerging from the budget crisis, relying on decades of criminal justice research, and reaching out to key constituencies. The result is legislation that aims to make more targeted use of incarceration and to reinvest the cost savings into community programs geared toward reducing recidivism and victimization.
NY Times editorial calls for Chief Judge Cebull to resign over email incident
The New York Times has this new editorial, headlined "Judge Cebull’s Racist ‘Joke’," in which the paper's editorial board makes a direct recommendation as to what should happen with the brouhaha over racially charged emails forwarded by a federal judge in Montana. Here are excerpts from the editorial:
Richard Cebull, the chief Federal District Court judge in Montana, acknowledged last week that he had sent some of his friends an e-mail containing a joke based on sexual and racist slurs against President Obama. He apologized, directly to Mr. Obama, which is more than Mr. Limbaugh did to Ms. Fluke. But he did it in a way that only exacerbated doubts about his judicial temperament and whether he possesses the balance and impartiality essential for any federal judge.
To his credit, Judge Cebull, who was nominated to the bench by President George W. Bush in 2001, admitted that the joke was racist and that he displayed “very poor judgment.” But he also said he did not send the e-mail because it was racist but because it was “anti-Obama.”
His dislike of the president is so strong, apparently, he could not resist the urge to violate his ethical duty to avoid intemperate conduct that suggests racial and political bias and an appearance, at least, of impropriety. Although Judge Cebull did not intend for his e-mail to become public, his use of a government computer and an official e-mail account to spread the hateful message removes any claim that his action was purely private.
At Judge Cebull’s request, the Judicial Council of the Ninth Circuit Court of Appeals will now consider whether and to what degree to discipline him. It has the power, if it chooses, to reprimand him and temporarily suspend him from hearing cases.
It should not be necessary for the appeals court to do that. Judge Cebull has forfeited the trust Americans need to have in the impartiality and judgment of members of the federal bench. He should resign.
Recent related posts:
- Should Congress investigate federal judge who forwarded racially charged email about President Obama?
- Apologies, inquiries and calls for resignation involving Chief Judge Cebull
- "Blinded by the Hate: The Real Problem With Judge Cebull's Email"
March 5, 2012
Trying to unpack the new federal sentencing data from TRAC
As reported in prior posts here and here, the folks at the Transactional Records Access Clearinghouse (aka TRAC) have assembled important new data on federal sentencing outcomes which includes information (linked here, but requiring a subscription) on sentencing outcomes for nearly every federal judge over the last five years. The New York Times has this new article about the TRAC data, which is headlined "Wide Sentencing Disparity Found Among US Judges," and highlights some more of the backstory concerning why the new TRAC data is so notable:
The trove of data subjects individual district court judges to a level of scrutiny unprecedented in the history of the judiciary....
Until the release of the data on Monday, it was difficult to review a judge’s sentencing history over time, because public court records in criminal cases could not be searched by the names of judges, only by the names of criminal defendants or lawyers.
In addition, the United States Sentencing Commission excludes the name of the judge from its sentencing data, in part, experts said, because of the judiciary’s concern that such data could be used to single out judges, who were freed from restrictive sentencing guidelines in 2005.
The new data were obtained under the Freedom of Information Act and analyzed by the Transactional Records Access Clearinghouse, or TRAC, an organization based at Syracuse University that gathers data on the federal government.
The study covered each sentence imposed by federal district court judges in the past five years, for drug, white-collar and other kinds of crimes. Judges who had not sentenced at least 50 defendants were excluded, resulting in a pool of 885 judges who cumulatively had sentenced more than 370,000 defendants.
Unfortunately, based only on the publicly available materials set out by TRAC here in this simple report, I find it extremely hard to reach any new or refined views or conclusions about post-Booker sentencing practices. It seems that one must purchase a TRAC subscription to be only able even to understand the nature and potential limits of the data that TRAC has assembled concerning the sentencings of individual judges. Moreover, based on the TRAC reporting, I fear that the TRAC data only includes final sentencing outcomes and lacks any refined information about applicable mandatory minimums, calculated guideline ranges, offender criminal histories and other obviously relevant considerations that may be driving different sentencing patterns in different sets of cases.
Notably, at the end of the TRAC report, the folks at TRAC praise their justifiably praise their data compilation efforts with this comment: "TRAC has collected hundreds of thousands of required records, analyzed them in a new way and developed a sophisticated online system so that judges, law schools, scholars, public interest groups, Congress and others can easily access them and be better informed about the best ways to achieve the broad goal of improving the federal courts." I very much like this sentiment, and hope in the days and weeks ahead to see judges, law schools, scholars, public interest groups, Congress and others trying to unpack the TRAC data so we can all better understand and assess what it may be telling us.
Recent related posts:
- New TRAC federal sentencing data (with judge identifiers!) highlights post-Booker variations
- "Surprising Judge-to-Judge Variations Documented In Federal Sentencing"
Super Tuesday meets sex offender panic in Virginia
With Super Tuesday on my mind (and lots of political ads on my TV), I found notable this local article from Virginia headlined "Schools Take Precautions as Voters Head to the Polls." Here are excerpts:
When your child heads to school Tuesday, they could be coming dangerously close to a sex offender. The Republican presidential primary is Tuesday, and since schools often serve as polling places, they have to allow all registered voters in -- even sex offenders.
It's a touchy topic. Four schools in Charlottesville, two in Greene County, five in Orange County, and several more across the state are acting as voting precincts for elections, with schools in session.
But a lot of people wonder why sex offenders are allowed to vote on school property in the first place. When schools open their doors for classes, parents know the law prohibits sex offenders from coming in.
In Virginia, it's clear -- every adult convicted of a sexually violent offense is prohibited from entering or being present during school hours and during school-related activities. However, that law does not apply if the offender is registered and qualified to vote, and is coming on school property solely to cast their ballot.
It's a provision that has parents like Janet Ball worried. "As a mother and a grandmother, I do not want a sex offender anywhere near that school, no matter what," she said....
School officials don't anticipate any type of contact at all between their students and voters. Doors will be locked from the gym to the school and extra hands will be on deck to keep voters away from kids.
Jeck even went on to explain that they are using this as a teaching to tool to help kids understand what all goes into the voting process, but a lot of people say keeping voters away from students isn't good enough. They want the law changed to keep sexual predators away from schools at all times. "I think that they should be provided with an absentee ballot, that would take care of this issue," said voter Virginia Ferrell.
"But that's been the law, they have been allowed to in the state of Virginia for years, so hopefully that won't be an issue because you always worry you know, being a mother and grandmother myself, you constantly worry," said Greene County Registrar Sandra Shifflett.
On a positive note, the voting exception is only granted to those sexual offenders who have not been convicted of a felony. Anyone with a felony has their right to vote taken away all together.
This story strikes me as a truly great (aka truly terrible) example of sensationalized sex offender panic reporting. The first sentence asserts that kids on election day could be coming "dangerously close to a sex offender," but later the article notes that school official "don't anticipate any type of contact at all between their students and voters," and it ends by noting that anyone convicted of a felony is not even able to vote in Virginia. (That said, given all the SuperPAC commercials I have seen attacking one candidate for supporting ex-felon voting rights, perhaps the local media is wise to alert parents about the risk of hordes of disenfrachised Virginia sex offenders storming the polling places in Virginia to try to find a way to vote for Rick Santorum.)