March 31, 2012
Lengthy fights in California over lengthy stays in solitary
A helpful reader altered me to this new piece in the New York Times, headlined "Fighting a Drawn-Out Battle Against Solitary Confinement." Here are excerpts:
Ernesto Lira is not a murderer. He has never participated in a prison riot. The crime that landed him behind bars was carrying three foil-wrapped grams of methamphetamine in his car. But on the basis of evidence that a federal court later deemed unreliable, prison officials labeled Mr. Lira a gang member and sent him to the super-maximum-security unit at Pelican Bay State Prison, the state’s toughest correctional institution.
There, for eight years, he spent 23 or more hours a day in a windowless 7.6-by-11.6-foot cell, allowed out for showers and exercise. His view through the perforated steel door — there were 2,220 holes; he counted them — was a blank wall, his companions a family of spiders that he watched grow, “season by season, year by year.”
Mr. Lira insisted that he was not a gang member, to no avail. He was eventually vindicated and is now out of prison, but he still struggles with the legacy of his solitary confinement. He suffers from depression and avoids crowds. At night, he puts blankets over the windows to block out any light. “He’s not the same person at all,” said his sister Luzie Harville. “Whatever happened, the experience he had in there changed him.”
California has for decades used long-term segregation to combat gang violence in its prisons — a model also used by states like Arizona with significant gang problems. Thousands of inmates said to have gang ties have been sent to units like that at Pelican Bay, where they remain for years, or in some cases decades. But California corrections officials — prodded by two hunger strikes by inmates at Pelican Bay last year and the advice of national prison experts — this month proposed changes in the state’s gang policy that could decrease the number of inmates in isolation.
Depending on how aggressively California moves forward — critics say that the changes do not go far enough and have enough loopholes that they may have little effect — it could join a small but increasing number of states that are rethinking the use of long-term solitary confinement, a practice that had become common in this country over the past three decades.
The changes in California’s system would represent one of the largest shifts in how it handles prison gangs since officials began pulling gang leaders, known as shot-callers, out of the general population in the late 1970s. Prison reform advocates say that if California, with the largest prison population in the nation, changes its practices, states like Arizona that have similar policies might follow suit....
Few dispute the threat posed by prison gangs, or the murders, assaults, drug smuggling and other mayhem they are responsible for. In 2011, there were 1,759 gang-related homicides, attempted homicides and violent attacks on staff members or other inmates inside state prisons, the California Department of Corrections and Rehabilitation said.
Most states identify inmates who are members of prison gangs, and gang members account for a large percentage of the prisoners held in solitary confinement around the country. But California’s policy has been among the most severe, sending not only full gang members but also inmates found to associate regularly with gangs to one of the state’s three super-maximum-security facilities. More than 3,000 prisoners judged to have gang ties are held in such conditions. Of the inmates sent to the unit at Pelican Bay for gang affiliation, 248 have been there for 5 to 10 years; 218 for 10 to 20 years; and 90 for 20 years or more....
But civil rights lawyers have long been critical of California’s gang policy. The procedures used to identify gang members are flawed and lacking in due process, they say, leading to mistaken identifications like the one that sent Mr. Lira — who was vindicated by a civil rights lawsuit resolved last year, long after he was paroled — to Pelican Bay.
The piece in accompanied by this slideshow titled "A Legacy of Solitary."
The Machinery of Criminal Justice #7: Collateral Consequences and Reentry
[Stephanos Bibas, guest-blogging]
In my last guest-blog post about my new book, The Machinery of Criminal Justice, I advocated requiring military service as a punishment for able-bodied convicts without serious violent tendencies. Today, in my final guest-blog post, I'll make a pitch for reducing collateral consequences and facilitating prisoners' reentry into society.
Making inmates quit drugs, learn, and work can better prepare them to reenter society. But even after they have supposedly paid their debts to society and victims, our laws are remarkably unwilling to give them a second chance. Ex-cons face a web of laws and prejudices. Some exclude them from the polity symbolically, by forbidding them to vote, serve on juries, or hold public office.
Other laws harm them more tangibly by limiting where they can live and how they can work. After conviction, inmates are often shipped to distant prisons at the other end of the state, impeding family visits and straining or breaking family bonds. Even after they are released from prison, sex offenders and others are often forbidden to live within a thousand feet or so of schools, day-care centers, playgrounds, churches, and hospitals. In many urban areas, these residency restrictions rule out most of the city, in effect exiling or banishing ex-cons entirely. Likewise, licensing laws limit felons' employment not only as police or schoolteachers, but also as embalmers or septic-tank cleaners.
The net is quite broad: sex offenders include not only child molesters, but also flashers, public urinators, or teenage lovers. And the effects are often perverse: Ex-cons may not be able to live with their families and neighbors, who might keep an eye on them. Instead, they may have to crowd into the same motels on the wrong side of the tracks and build new criminal networks. Likewise, when we deny felons the right to work in the profession for which they have trained, we may be consigning them to unemployment or crime.
There is little evidence that these laws make us safer. Predators on the prowl can easily travel a mile or two to commit their crimes. On the contrary, residency restrictions probably make us less safe, by clustering ex-cons and preventing them from reintegrating into their families. Thus, even one prosecutors' group (the Iowa County Attorneys' Association) has vocally opposed a residency law as ineffective and distracting from the core mission of preventing crime.
The point of punishment is not to ostracize wrongdoers into a permanent, embittered underclass, but to exact retribution and prepare them to return to the fold. Shame, embarrassment, even modest degradation are fitting so long as they are temporary, so wrongdoers can repudiate their wrongs and be seen to suffer enough to discharge their debts to society and victims. Only a small fraction of predators are hardened and dangerous enough to require permanent confinement or execution; most will return someday.
The left and the right ought to be able to unite behind a combination of restorative punishment followed by forgiveness. Indeed, one prominent group associated with the religious right has already come out against many collateral consequences on just this ground. The Prison Fellowship, founded by Chuck Colson, draws on Biblical language of forgiveness to support a dramatic narrowing of collateral consequences. Governments, they argue, should abolish all restrictions that are not related to the crime of conviction and not needed to protect the public. Though a powerful political ratchet keeps toughening collateral conseuqneces, conservative groups such as the Prison Fellowship can give politicians cover for ameliorating them.
Now, forgiving does not require forgetting. One can legitimately worry about the sincerity of a wrongdoer's remorse or a sincerely repentant wrongdoer's ability to resist future temptations. It is one thing to restore a drug dealer's right to work as a bartender or plumber; it is another to license him as a pharmacist with access to prescription narcotics. Restoring rights requires difficult judgment calls about how severe the wrongdoer's crimes were, how trustworthy he has become, and how sensitive the right in question is. But we should not be so afraid that we refuse to take any chances at all.
Finally, public-private partnerships can promote successful reentry. Public reentry programs remain woefully inadequate; many inmates are released from prison with no support other than a bus ticket and a few dollars. In response, some private groups such as Prison Fellowship's InnerChange Freedom Initiative run reentry programs. Volunteers, often from local church congregations, mentor inmates and help to arrange for housing and jobs upon release.
Contact with mentors and congregations, empirical studies suggest, are crucial in holding ex-cons accountable and keeping them on a lawful path. The Establishment Clause issues with offering religious programming are manageable, so long as prisons are open to secular alternatives, state dollars don't directly fund specifically religious activities, and religious programs receive no better facilities or perquisites.
Governments should try harder, but public reentry programs are woefully underfunded and unprepared to help the masses of released inmates. As long as there is no religious coercion, we should welcome all manner of private assistance to bring inmates home and give them the mentoring, accountability, and community reintegration they need.
Well, thank you all for having me guest-blog here for the past two weeks. I certainly can't match Doug Berman's speed or volume, but I hope you've enjoyed hearing about some different historical and contemporary angles on punishment and corrections, and hope you'll consider taking a look at the book, which covers much more.
March 30, 2012
"Ohio's execution process, Death Row inmates face uncertain future"
The title of this post is the headline of this new piece from my own Columbus Dispatch. Here are excerpts:
With Ohio’s execution process tied up in court, 153 inmates on Death Row face an uncertain future. The 2011 Capital Crimes report, issued today by Ohio Attorney General Mike DeWine, summarizes the status of the death-penalty process, including the 12 inmates with scheduled execution dates and 46 inmates lethally injected since 1999. The report, required annually by state law, goes to the governor, state lawmakers and the courts.
What DeWine’s report does not say is when, or if, executions will resume. Reginald Brooks, a Cuyahoga County man who murdered his three sons in their beds, was the last person executed, on Nov. 15 last year.
Since then, the state has been tied up in federal court on a legal challenge to the lethal injection process. U.S. District Judge Gregory L. Frost has been highly critical of the state’s lethal-injection protocol and stopped an execution; Gov. John Kasich postponed others, anticipating federal court entanglements....
DeWine reported there are 14 convicted killers with scheduled death dates, although the number is now 12 with two having been postponed. The death dates run through Jan. 16, 2014. The 46 men who have been executed were responsible for killing 76 people, 17 of them children.
UPDATE: This follow-up article, headlined "Ruling is near on capital punishment," suggests a ruling in to be coming soon concerning Ohio's lethal injection process:
U.S. District Judge Gregory L. Frost said this week that he will make a decision “in due course” on a legal fight over Ohio’s lethal-injection protocol. Frost recently finished a seven-day hearing on the case of Mark W. Wiles of Portage County. He is set to be executed on April 18.
Because of continued litigation over the lethal-injection process, there has not been an execution in Ohio since Nov. 15 when Reginald Brooks, a Cuyahoga County man who murdered his three sons, was put to death. Frost found flaws in state procedures in that case, effectively putting executions on hold.
In addition, the full 2011 Capital Crimes report issued yesterday by Ohio Attorney General Mike DeWine is avaiable via this link.
Interesting appeal by federal prosecutors of interesting white-collar sentence
This local press report, headlined "U.S. appeals sentence of Michael Peppel, former MCSi executive," reports on federal prosecutors' decision to appeal an interest white-collar sentence that gave a maximum fine but minimum jail time to a corporate criminal. Here are the basic details:
Federal prosecutors are challenging the seven-day jail sentence given last year to Michael E. Peppel, former top executive of MCSi Inc., for his guilty pleas to felony crimes related to the company’s 2003 collapse and insolvency.
Peppel’s sentence failed to reflect the seriousness of his offenses, provide just punishment, promote respect for the law or send a message of deterrence for those who would commit similar crimes, U.S. Attorney Carter Stewart argued in his written arguments filed with the 6th U.S. Circuit Court of Appeals on Tuesday.
Stewart asked the Cincinnati-based appeals court to throw out the seven-day punishment and order resentencing by U.S. District Judge Sandra Beckwith, who sentenced Peppel on Oct. 24.... Peppel was also fined the legal maximum of $5 million, must disclose his criminal record to all employers, must submit to random drug testing and must do community service, according to his sentencing terms. He has already served his seven days behind bars.
His lawyer, Ralph Kohnen, said the defense will fight efforts to impose a longer term of incarceration on Peppel, who was MCSi’s president and chief executive officer. “The government’s decision was unfortunate,” Kohnen said Thursday. “Judge Beckwith’s sentence was thoughtful and appropriate. Her sentence was just, proper and fair.”
Under a court-approved agreement that took effect this month, Peppel has committed to pay $3,000 per month toward his $5 million fine. At that rate, it would take him 50 years to pay $1.8 million of the fine and 100 years to have paid $3.6 million of it.
Peppel, 44, avoided trial in August 2010 by pleading guilty to willful false certification of a financial report by a corporate officer; money laundering, and conspiracy to commit securities fraud. He could have faced up to 50 years in prison. The government said his crimes helped sink MCSi, a Kettering-based computer and audiovisual equipment company. Its failure cost 1,300 employees their jobs, benefits and retirement income and left investors holding worthless stock.
Beckwith initially determined that, under federal sentencing guidelines, a prison term for Peppel of eight to 10 years would be appropriate. But after the defense presented 113 letters of support from Peppel’s family and friends, and argued that he had already been publicly humiliated and agreed to a lifetime ban on his ever serving again as a corporate chief executive, the judge imposed the seven-day jail term. Beckwith said she does not believe Peppel is likely to repeat his crimes and does not represent a threat to the public.
For a variety of reasons, in cases like this in which there appears to be no threat to public safety, I see as quite reasonable a judge's decision to impose a huge fine (which makes a defendant essentially an indentured servant to federal taxpayers for life) rather than requiring a lengthy prison term (which requires federal taxpayers to pay for a defendant's room-and-board while he catches up on reading at Club Fed). But, obviously, federal prosecutors have a different view and I will be very interested to see how this appeal ends up playing out in the Sixth Circuit.
March 30, 2012 in Booker in district courts, Booker in the Circuits, Criminal Sentences Alternatives, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack
March 29, 2012
The Machinery of Criminal Justice #6: Military Service, Education, Treatment
[Stephanos Bibas, guest-blogging]
In my last guest-blog post about my new book, I suggested making prison more pro-social by requiring able-bodied convicts to work. In today's post, I'll extend the idea, first by suggesting military service for convicts without serious violent tendencies or major disabilities.
Throughout history, many societies have sentenced convicts to military service, offering them a concrete way to work off their debts and earn freedom. Currently, however, most of the American military services forbid enlistment as an alternative to criminal prosecution or as a form of punishment. The rigors of military service are vivid and easy to visualize: think of boot camps, with bugles at dawn, shouting drill sergeants, and strenuous calisthenics. The public sees military service as rigorous, demanding labor. Yet these rigors would be productive and prosocial, inculcating work habits and discipline that wrongdoers often lack.
Now, readers from both sides of the political spectrum will doubtless object. Those on the left may complain that military service would put defendants in harm's way and degrade them. Those on the right may fear that using military service would demean the honorable service of law-abiding men and women who choose to serve their country. And military leaders might well resist the change, both for reasons of honor and for concerns about administering unruly convicts.
But a properly crafted program could allay all three sets of concerns. To satisfy those on the right, prisoners would be compelled to join, not free to choose. They would come in at lower ranks and lower wages than ordinary enlistees. Garnishment and restitution would further reduce their take-home pay, and GI Bill benefits would not vest for some time. They could wear different uniforms and enjoy fewer privileges, by for example being confined to base. They would have to endure the lowliest of jobs, even cleaning latrines, and suffer push-ups and other punishments for the smallest infractions. In other words, prisoners would not start out equal.
On the other hand, those on the left might note that the military has one of the best records of racial equality and meritocratic advancement in America. Integrating minority prisoners into the military, full of minority officers, would be far less vulnerable to charges of racism than exiling them to prisons. Integrating prisoners into barracks would also reduce the crmiminogenic clumping and self-segregation that prisons breed. Any harms faced would be prosocial, in the service of their country and as payment of their debts to society, offsetting the harms they threatened or caused to others.
Any humbling would be productive and temporary. Inmates could prove themselves and in time earn promotions and restoration to full equality, including equal rank, pay, and benefits. After a time, their families could come to live with them on military bases, helping to reintegrate them. Convicts would learn productive, marketable skills, and employers view military service as a valuable credential, paving the way for reentry and future employment.
Military leaders might note that military service in lieu of criminal punishment has a long history and has hardly dishonored the law-abiding soldiers who served alongside wrongdoers. At least if one screens out problem candidates, the disciplinary problems have historically been manageable and may have been improved by the structure, rigor, and sense of purpose in military life.
Nevertheless, the military almost certainly will resist being asked to take on a social purpose in addition to fighting wars and defending against attacks. Moreover, the current all-volunteer ethos of the American military may conflict with effectively drafting convicts. If military opposition proves insurmountable, the military could at least repeal its bans and selectively admit convicts who are most compatible with military life. Or one could experiment with creating a civilian analogue to the military, something like the Civilian Conservation Corps, with uniforms, ranks, strict discipline, and a mission, to build character and skills.
That's all for now. In my next post, I'll discuss other possible measures to facilitate reentry.
Stephanos Bibas, guest-blogging
Japan gets back into death penalty business with three hangings
Recent political developments in Japan had led me and others to think that country might remove itself from the short list of developed nations still making regular use of the death penalty. However, this new Reuters story, headlined "Japan hangs 3 murderers in first executions since 2010," suggests that capital punishment is not yet dead in the Land of the Rising Sun. Here are the details:
Japan hanged three convicted multiple murderers on Thursday, the Justice Ministry said, its first executions in almost two years putting it back alongside the United States as the only leading developed nations to carry out the death penalty. Justice Minister Toshio Ogawa authorized the executions of the three men and they were hanged in jails in Tokyo, Hiroshima and Fukuoka, the ministry said.
They were the first executions in Japan since two death row inmates were hanged in July 2010. Those executions marked the first time capital sentences had been carried out since the Democratic Party of Japan took power in late 2009.
There are currently 132 inmates on death row in Japan, Kyodo news agency reported. They include 13 members of the doomsday cult that staged deadly gas attacks on the Tokyo subway in 1995.
Japanese media reported that one of the men executed on Thursday had killed five people at a train station in western Japan in 1999.
A government survey in 2009 showed that 86 percent of Japanese people supported the death penalty. Despite the delay between executions, there has been no formal moratorium on capital punishment.
Former justice minister Keiko Chiba, an opponent of the death penalty, authorized and attended the 2010 hangings and later allowed the media into the death chamber in an attempt to stir up public debate. Ogawa, who took office in a cabinet reshuffle in January, has said he would order executions of those on death row because the Japanese people supported capital punishment....
Japan and the United States are the only countries in the Group of Eight leading economies to carry out the death penalty. Both have been the target of strong criticism by Amnesty and other human rights groups.
Could the "Walmart of Weed" in DC impact political perspectives on pot policy?
The question in the title of this post is prompted by this interesting new AP piece headlined "'Walmart of weed' opening store in Washington, D.C." Here are excerpts:
A company dubbed the "Walmart of Weed" is putting down roots in America's capital city, sprouting further debate on marijuana — medical or otherwise.
Just a few miles from the White House and federal buildings, a company that candidly caters to medical marijuana growers is opening up its first outlet on the East Coast. The opening of the weGrow store on Friday in Washington coincides with the first concrete step in implementing a city law allowing residents with certain medical conditions to purchase pot.
Like suppliers of picks and axes during the gold rush, weGrow sees itself providing the necessary tools to pioneers of a "green rush," which some project could reach nearly $9 billion within the next five years. Admittedly smaller than a big box store, weGrow is not unlike a typical retailer in mainstream America, with towering shelves of plant food and vitamins, ventilation and lighting systems. Along with garden products, it offers how-to classes, books and magazines on growing medical marijuana.
"The more that businesses start to push the envelope by showing that this is a legitimate industry, the further we're going to be able to go in changing people's minds," said weGrow founder Dhar Mann.
Although federal law outlaws the cultivation, sale or use of marijuana, 16 states and the District of Columbia have legalized its medical use to treat a wide range of issues from anxiety and back pain to HIV/AIDS and cancer-related ailments. Fourteen states also have some kind of marijuana decriminalization law, removing or lowering penalties for possession.
Nearly 7% of Americans, or 17.4 million people, said they used marijuana in 2010, up from 5.8%, or 14.4 million, in 2007, according to the Substance Abuse and Mental Health Services Administration. A Gallup poll last year found a record-high of 50% of Americans saying that marijuana should be made legal, and 70% support medical uses for pot....
[A] recent push from the federal government to crack down on medical marijuana dispensaries has led several states to delay or curtail their dispensary programs for fear of prosecution. It means some medical marijuana users may seek to grow their own — paving the way for companies like California-based weGrow to open a budding number of locations across the country to help legal users and larger cultivators grow their own pot plants.
WeGrow doesn't sell pot or seeds to grow it. The store, however, makes no secret that its products and services help cultivators grow their own plants for personal use or for sale at dispensaries. Selling hydroponic and other indoor growing equipment is legal, but because those products are used to cultivate a plant deemed illegal under federal law the industry has tried to keep a low profile....
Mann, who opened the first store in Sacramento last year, said he started his venture after he was kicked out of a mom and pop hydroponics store in Berkeley, Calif., just for mentioning marijuana. WeGrow has since opened a location in Phoenix and also will open stores in San Jose and Flagstaff, Arizona, in the near future. The company has franchisees in New Jersey, Delaware, Pennsylvania, and plans to expand into Oregon, Washington state and Michigan.
The frankness of the business comes as public attitudes toward marijuana use and legalization in the U.S. transform. But federal pressure on customers means companies catering to the marijuana industry could take a hit — in their wallets and with jail time. "There's a whole host of risks associated with investing and opening up shop here," said Jason Klein, a D.C. attorney who represents medical marijuana operators. "These entrepreneurs see themselves as doing yeoman's work, putting themselves in personal risk … to get medicine to the sick people who deserve it."
D.C. officials on Friday are set to announce those eligible to apply for permits to grow and sell medical marijuana to dispensaries under the district's 2010 law. Applicants must sign a statement saying they understand a license doesn't authorize them to break federal law.
"They do so at their own peril because I can't imagine that the federal government is going to allow marijuana selling for any purpose right in their backyard," said Kevin Sabet, a former senior adviser to the president's drug czar and an assistant professor in the College of Medicine at the University of Florida. "Whether it's D.C. or all the way out in California, the government's been pretty clear that medical marijuana doesn't pass the giggle test." Sabet said the idea of dispensaries trying to be passed off as a medical establishment is a joke, adding that the grow store will be the first in a series events where people are going to try to "make big money off an illegal drug."
The national medical marijuana market was estimated to be worth $1.7 billion in 2011 and is projected to reach $8.9 billion within five years, according to an economic analysis done for the American Cannabis Research Institute. The study also says that nearly 25 million Americans are potentially eligible to use medical marijuana based on current state laws.
"There's great potential for the industry across the country," said Steve Fox, a spokesman for the National Cannabis Industry Association, a D.C.-based trade group representing marijuana-related businesses. He said support for the businesses has emerged in states like California, Colorado and Washington state. "They are showing that just like any other industry, there's a demand for a product and these businesses are sprouting up to address the need."...
For Alex Wong, the franchisee of the D.C. weGrow store, his involvement in the industry is both personal and professional. The mid-40s entrepreneur was drawn to the business after seeing the firsthand effects of his mother's colon cancer and learning that medical marijuana might have made her more comfortable during treatment. "It is a viable medicine," said the. "All I can do is use my small business expertise to lend a hand in this movement."
Rafael Lemaitre, spokesman for the Office of National Drug Control Policy, issued a statement saying science and research — not politics — should drive the approval process for medicine, and to date the "smoked form of marijuana has not met the modern standard" established by the Food and Drug Administration.
"Chronically ill and suffering patients deserve access to modern medicine that is proven to be effective and safe," Lemaitre said. "We ardently support continued research into medical uses for the components of marijuana and will continue to do so."
Mann, however, says medical marijuana cultivation and distribution is going to happen with or without federal government approval. "Regardless of how rigorously they want to enforce intervention, it's not going to stop the industry," Mann said.
As regular readers know, I keep hoping that a time will come when those on the political right live up to their appealing advocacy for liberty, free markets and limited government by embracing those marijuana entrepenuers who are trying their best to serve a (reasonable?) human demand for a natural product. I doubt that the coming of the Walmart of Weed to the DC area will move the political needle overnight, but I do think this is one more step to what is seeming like an inevitable march toward an eventual end to pot prohibition.
"Putting The Compassion Into 'Compassionate Release' With A Little Help From Setser"
The title of this post is the title of this great new post by Federal Public Defender Steve Sady over at the Ninth Circuit Blog, which discusses one (of many) interested aspects of the Supreme Court's sentencing ruling in Setser yesterday (basics here). The post demands a full read, but here are key excerpts:
Your client from years ago calls you with terrible news.....he has a terminal illness; his family suffered a tragedy; an injury or illness renders him no longer able to care for himself. You look through the statute book and see that Congress anticipated this type of issue. Under 18 U.S.C. § 3582(c)(1)(A), the sentencing judge has the authority to reduce the federal sentence at any time based on “extraordinary and compelling reasons.” Congress assigned to the Sentencing Commission the task of defining “extraordinary and compelling reasons,” including examples, in 28 U.S.C. § 994(t). The Bureau of Prisons (BOP) acts as the gatekeeper, filing a motion where such reasons exist, leaving to the sentencing judge the decision whether, considering all the factors under 18 U.S.C. § 3553(a), the motion should be granted. Great theory; horrible reality.
The BOP hardly ever files § 3582(c) motions and when it does, the standard is imminent death or what we call “the death rattle rule.” In about 24% of the cases where a motion is filed, the prisoner dies before the sentencing judge has a chance to rule. Although the Sentencing Commission has broadly defined “extraordinary and compelling reasons” in U.S.S.G. § 1B1.13, the BOP expressly refuses to implement the Commission’s standard in its so-called “compassionate release” program, as the Government Accountability Office confirmed in its February 2012 report....
[T]he Supreme Court just gave our § 3582(c) litigation a big boost in Setser. First, in holding that the power to run sentences concurrently or consecutively resided in the Judicial Branch, not the Bureau of Prisons, the Court rejected the BOP’s usurpation of sentencing authority: “But the Bureau is not charged with applying 3553(a).” Exactly. The BOP’s practice of only filing § 3582(c) motions that it believes should be granted now runs contrary to Supreme Court authority. But there’s more. During oral argument, the attorney defending the district court’s authority to order a federal sentence to run concurrently with a not-yet-imposed state sentence asserted that the federal court could review subsequent state court action through § 3582(c). Didn’t he realize that the BOP only allowed consideration of imminent death (see 21 Federal Sentencing Reporter 167 (February 2009))? Although the statute is nowhere in the briefing, the Setser opinion states, “[W]hen the district court’s failure to ‘anticipat[e] developments that take place after the first sentencing,’. . . produces unfairness to the defendant, the Act provides a mechanism for relief,” then sets out the text of § 3582(c)(1)(A). The BOP’s stingy reading of the statute is completely inconsistent with the Supreme Court’s broad reading, and the Court has added to the Sentencing Commission’s recognition of factors “other than, or in combination with” its listed factors that should now include subsequent state sentencing proceedings.
I likewise found notable and valuable the SCOTUS comments about § 3582(c)(1)(A) in Setser v. US, No. 10-7387 (S. Ct. March 28, 2012) (available here). In addition to the important comments stressed in Steve Sady's post linked above, I also thought it important that at the very end of the Setser opinion the Court indicated that an imprisoned defendant who fails to get requested relief from the BOP adminstrative review process "may seek a writ of habeas corpus. See 28 U.S.C. §2241." Because I am not often involved in BOP-related issues, I am unsure if it is well known and/or common for imprisoned federal defendants to seek habeas review via 28 U.S.C. §2241 of BOP decisions that adversely impact them. If not, the Setser ruling might, in this additional way, prove to be a very positive development for those already serving legnthy federal prison terms.
Prior related posts:
- Fascinating and surprising opinion from SCOTUS in Setser
- New GAO report reviews back-end sentencing realities in federal system
- Re-examining compassionate release
- Great primer on federal compassionate release
Vermont exploring racial disparties in its prison population
Few people likely think first of Vermont when concerned about racial disparties in the operation of criminal justice systems, but this local article from the Green Mountain State highlights that Vermont's legislators are (justifiably) concerned on this front. The piece is headlined "Vermont bill calls for study of prison population by race," and here are excerpts:
It’s been a vexing puzzle for years, and Vermont lawmakers have decided to take a step at trying to solve it: Why do African-Americans make up 10.3 percent of Vermont’s prison population when they are just 1 percent of residents in the nation’s second-whitest state?
Traffic stops and roadside searches have been studied for years as a possible source of race-based bias among Vermont law enforcement. A new study, contained in a bill given preliminary approval by the House on Tuesday, will look at whether bias enters the picture when defendants are sentenced in court.
“There’s a dramatic disparity between those who are incarcerated and what our census data show,” said Rep. William Lippert. The Hinesburg Democrat chairs the House Judiciary Committee and described the bill to his House colleagues Tuesday. It won preliminary approval on an overwhelming voice vote and was up for final House action Wednesday before moving to the Senate.
The figures are striking: African-Americans make up just 1 percent of the population of a state that is 95.3 percent white, yet they make up 10.3 percent of Vermont inmates. Put another way, a Vermont inmate is more than 10 times as likely as a resident at large to be African-American.
According to the legislative findings at the beginning of the bill, a statistical technique called regression analysis indicated that black men were 1.5 times more likely, and women 2.6 times more likely, to be arrested in Vermont than their white counterparts....
The bill requires that a key part of the study look at prior criminal records of defendants, including prior convictions from out of state. Appel said there is widespread belief — but not enough data to back it up — that African-Americans frequently get into trouble in Vermont when they bring illegal drugs from elsewhere to sell in the state.
“Is it racial profiling, or black men preying on our kids by selling drugs in our communities? It’s long overdue for us to get a handle on what’s driving these disparities,” Appel said. “That’s what this study is designed to answer.”
Don't severability difficulties suggest the ACA individual mandate is constitutional?
As the title suggests, I am going off-topic in this post because I am puzzled after reading Dahlia Lithwick's discussion here at Slate concerning the final day of the SCOTUS health care reform litigation. (Arguably, I am not straying too far off-topic given not only the discussion of the Booker remedy in the argument, but also Justice Scalia's joking suggestion it would violate the constitutional ban on cruel and unusual punishment to force the Justices to read all of ACA.) Specifically, if the ACA challengers assert and many Justices believe that none of the indisputably constitutional parts of ACA can stand without the individual mandate, doesn't that notion itself indicate that the mandate has to be a "necessary and proper" adjunct to how Congress has through ACA sought to regulate commerce in health care and insurance?
I raise this point because my understanding of the Raich decision, and especially Justice Scalia's Raich concurrence, was that it was "necessary and proper" for Congress to prohibit private growing and possession of a plant on private property because doing so was a permissible adjunct to how Congress sought to regulate (i.e., prohibit) any and all commerce in that plant. In other words, I read Raich to mean that, absent some other express constitutional prohibition on state action, Congress can tell people what they can and cannot do (even concerning noneconomic private actions) if doing so is essential to its legitimate regulatory powers.
Thus, when ACA challengers argue that all of ACA must fall because the individual mandate is the essential heart of the whole regime, I cannot help but thinking this very potent severability claim itself provides a basis for finding the individual mandate a constitutional exercise of Congressional power.
Am I missing something here?
Recent related posts:
- Liberty, commerce, the federal drug war, health care reform and the Constitution
- A little talk about Booker remedy when debating ACA severability
UPDATE: A number of commentors sensibly suggest that the key issue here may be how to read and apply the term "proper" in the "Necessary and Proper" clause. The ACA challengers who believe the whole law should come down may well be arguing — or at least may be very willing to concede — that the individual mandate is "necessary" to the operation of other (constitutiuonal) parts of ACA, but the mandate is still not constitutional because that mandate is not "proper" because it unduly infringes on individual liberty and/or improperly realigns the relationship between "the people" and the federal goverment, which is supposed to be a government of limited powers.
I find this textual hook for the argument appealing, but this approach to striking down the individual mandate would still seem to require repudiating the holding and logic of Raich. Raich held that it was necessary and proper for Congress, in service to promoting a heathier population and/or to prevent a harmful market in pot, to make it a crime for a private person to grow and possess a plant on their own property. That conclusion surely seem to suggest that it is also necessary and proper for Congress, in service to promoting a heathier population and/or to promote a helpful market in insurance, to penalize a private person if he decides he does not want to purchase health insurance.
Readers should understand, as perhaps they already do, that I am setting out this argument because I am "rooting" for the individual mandate to be upheld. I am genuinely unsure about what I hope SCOTUS will do in the ACA cases. But I am sure that Raich still strikes me as a horrible ruling if one genuinely believes in the importance of a sacred sphere individual liberty and/or that the federal goverment must be a government of limited powers. Thus my argument really is that, if (and when?) SCOTUS is going to strike down all or lots of ACA, logic and principle suggest it ought also reverse Raich along the way.
March 28, 2012
The Sentencing Project provides "Felony Disenfranchisement: An Annotated Bibliography"
I received an e-mail earlier this week from The Sentencing Project announcing this new publication, titled "Felony Disenfranchisement: An Annotated Bibliography," which "provides an overview of more than 80 journal articles and books on felony disenfranchisement over the past two decades." Here is the introduction of the document:
While the right to vote is a cornerstone of American democracy, a substantial and growing population of citizens is restricted from participation in the electoral process. Current estimates suggest that about five million Americans are ineligible to vote as a result of having a felony conviction. Depending on the state in which they have been convicted, these people may be disenfranchised while incarcerated, on probation or parole, or even after completing a sentence. As a result of the dramatic expansion of the criminal justice system in recent decades, the number of people with convictions, and hence disenfranchised, is at a record high.
Since the first modern-day estimates of the disenfranchised population were developed in the late 1990s, there has been a surge of policy reform activity around the country. Two dozen states have enacted various policy and practice reforms designed to either scale back the number of persons disenfranchised or remove some of the barriers to rights restoration.
Along with this movement has come a new generation of scholarship on the issue of felony disenfranchisement. A wealth of studies and analyses have been produced in recent years that examine disenfranchisement from a variety of perspectives -- law, social science, history, and journalism. Overall, these writings provide new estimates of the statistical impact of disenfranchisement, assess legal and moral perspectives on the policy, and place the issue in a comparative international context.
This bibliography provides an overview of the scholarship on felony disenfranchisement over the past two decades. We hope that it will prove useful to policymakers, scholars, journalists, and others engaged in examining this fundamental issue of democratic participation.
Latest USSC quarterly data show slight downtick in within-guideline sentences
I am pleased to report that the US Sentencing Commission, fresh on the heels of releasing lots of complete Fiscal Year 2011 federal sentencing data (as reported here), today has released on its website the latest, greatest, freshest new quarterly sentencing data. The USSC's latest data report, which can be accessed here, is described this way:
First Quarter FY12 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the first quarter of fiscal year 2012. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published March 28, 2012)
The new data continue to show the same basic story lines and relatively stability in the operation and application of the advisory federal guideline sentencing system: these data show, yet again, that just under 55% of all federal sentences are within the calculated guidelines range, with prosecutors requesting a below-range sentence in over 25% of all cases.
Most notably, after the last two quarters revealed a slight uptick in the total number of within-guideline sentences (mostly as a result of a slight decrease in the number of judge-initiated below-guideline sentences), these 1st Quarter FY12 data shows a new downtick in within-guideline sentences, though mostly as a result of an increase in the number of prosecutor-initiated below-guideline sentences.
A timely article urging prosecutors to be "color-conscious" rather than "color-blind"
With all the controversy and media attention surrounding the shooting of Trayvon Martin by George Zimmerman and the response of the Florida criminal justice system, I think this article recently posted on SSRN is especially intriguing and timely. The piece is titled "Re-Imagining Criminal Prosecution: Toward a Color-Conscious Professional Ethic for Prosecutors," and is authored by Justin Murray. Here is the abstract:
Prosecutors, like most Americans, view the criminal-justice system as fundamentally race neutral. They are aware that blacks are stopped, searched, arrested, and locked up in numbers that are vastly out of proportion to their fraction of the overall population. Yet, they generally assume that this outcome is justified because it reflects the sad reality that blacks commit a disproportionate share of crime in America. They are unable to detect the ways in which their own discretionary choices — and those of other actors in the criminal-justice system, such as legislators, police officers, and jurors — contribute to the staggering and unequal incarceration of black Americans.
In this article, I aim to undermine this color-blind assessment of criminal justice and explain why prosecutors should embrace a color-conscious vision of their professional duties. Color consciousness is complex and multi-dimensional. It involves understanding the ways in which America’s long history of segregation generated the harsh socioeconomic conditions that lead so many young black males into a life of crime. It also demands awareness of the frequency of racial profiling and acknowledgment of widely shared stereotypes that lead so many Americans to automatically perceive black men as potentially dangerous, violent and criminal. Finally, color consciousness recognizes the exclusion of blacks from political power and how this exclusion shapes the substantive content of the criminal law. Prosecutors should not only strive to acquire insight into how race operates in the criminal-justice system, but also to allow these insights to guide relevant aspects of their practice, including the ways in which they interact with police, charge crimes, negotiate plea agreements, present their case to jurors, and more.
Taking these steps, particularly when they redound to the benefit of criminal suspects and defendants, would depart from the adversarial norm that largely defines the professional ethics of American lawyers. Normally, attorneys are expected to zealously represent the interests of their clients and to leave ultimate decisions about what is fair and true to the judge and jury.
Prosecutors are different. They have a dual obligation to serve both as vigorous advocates within adversarial relationships and as officers of justice. Currently, no uniform guidelines exist as to the relative weight of the two components of prosecutors’ dual role, so they must make complex judgments about how to negotiate the intrinsic dissonance of their professional identity in a range of different situations. This article advances a context-specific argument that prosecutors and the institutions that supervise them should be more concerned with pursuing justice than with being a vigorous adversary when dealing with the subtle racial dimensions of their work.
This article, which surely was written well before the Martin-Zimmerman tragedy took place, appears focused mostly on how prosecutors ought to be conscious of racial realities in cases involving young black male defendants. In the Martin-Zimmerman situation, the twist is whether and how prosecutors who might be inclined to "embrace a color-conscious vision of their professional duties" should change their approach to a case when it involves a young black male victim.
Recent related post:
- Should Florida's Gov have appointed a black (or Hispanic) prosecutor to take over the Trayvon Martin case?
"How Would Jesus Punish Drug Use?"
The title of this post is the headline of this recent Huffington Post commentary authored by Molly Gill, who is the Director of Special Projects for Families Against Mandatory Minimums. Here are some excerpts from a potent piece discussing the always interesting connections between religious convictions and criminal justice doctrine:
The first and only time I heard evangelical mega-figure Pat Robertson speak in public, he wasn't calling for the legalization of pot. I was 21, a junior at Oral Roberts University, playing endless rounds of "Pomp and Circumstance" on my viola with the school orchestra. Robertson was present to give the commencement address to that year's graduates. I can't remember what he exhorted them to do, but I'm positive it didn't involve toking up.
Robertson still isn't spreading that message, but his recent comments about legalizing pot, the cruelty and irrationality of mandatory minimum prison sentences for drug crimes, and the expensive and failed War on Drugs are refreshing. Our harsh mandatory prison terms for drug offenses are incompatible with Christian principles of justice. This conviction -- and the faith I and Robertson share -- drove me first to law school and then to Washington, D.C. to work on criminal sentencing reform for Families Against Mandatory Minimums (FAMM), a secular organization. I join Robertson in posing a question all evangelicals should be striving to answer:
How would Jesus want us to punish?
Most Christians would start with Exodus 21's command that "an eye for an eye" is the right approach. Sadly, this verse has been cited to justify heartless vengeance in our criminal laws: "do the crime, do the time." The verse isn't a license to punish, but a limitation on punishment: the time must fit the crime and not be excessive. Giving either less or more punishment than the crime or the offender deserves is an injustice....
Jesus turned the "eye for an eye" concept on its head in Matthew 5, when he said, "You have heard that it was said, 'Eye for eye, and tooth for tooth.' But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also." Anyone can hit back, but it takes real Christian love to show compassion to criminals -- in Jesus' words, to love our law-breaking neighbors as ourselves and to treat them as we would like to be treated....
Our lawmakers are to blame. Too many Christian legislators wear their faith like a badge of honor and proclaim a belief in redemption and forgiveness, but vote for more mandatory minimum prison sentences in election years. These lawmakers would do well to remember James 2:17: "Faith by itself, if it is not accompanied by action, is dead." (James 2:13 is another good reminder. That verse tells believers to show others the same mercy they've received: "Judgment without mercy will be shown to anyone who has not been merciful. Mercy triumphs over judgment.")
The Book of James also teaches that a true mark of our faith is caring for widows and orphans. Every time we lock up a breadwinner, we create a widow. Every time we incarcerate a parent, we create an orphan. The Christian organization Prison Fellowship does wonders in recruiting the faithful to care for prisoners and their families, but it also urges legislators to reform the laws that are at the root of the problem. Both prison ministry and sentencing reform advocacy are essential. Christians should support reforming mandatory sentencing laws that perpetuate an over-reliance on prisons and fail to deliver the compassion, services and opportunities for redemption that prisoners and their families need.
More leaders like Robertson should tell Congress to remove the thumb of mandatory minimum sentences from our scales of justice. Our judges need flexibility and discretion to require an eye for an eye -- nothing less and nothing more. They also need more compassionate, redemptive -- I daresay Christian -- sentencing options that treat offenders like the valuable children of God we all are.
Some related older and newer posts:
- Tipping point?: Pat Robertson joins crowd eager to end pot prohibition
- Religious group advocating against juve LWOP
- Is Jesus the answer to overcrowded prisons?
- "Jail and Jesus"
- WWJD about the conflict between religion and restrictions on sex offenders?
- Candidates asked "what would Jesus do" about the death penalty
March 28, 2012 in Drug Offense Sentencing, Pot Prohibition Issues, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (12) | TrackBack
A little talk about Booker remedy when debating ACA severability
I am listening to the oral arguments of this morning's health care litigation (available at this link), in which the question on tap concerns whether and how SCOTUS ought to strike down other parts of the Affordable Care Act if it strikes down the individual mandate as unconstitutional. In two parts of that argument, the remedy adopted in Booker gets mentioned. Not surprisingly, the Justices and the advocates seem to give different spins to what the Court did in the remedy portion of Booker and what that means for severability doctrines.
Fascinating and surprising opinion from SCOTUS in Setser
The Supreme Court this morning handed down an interesting sentencing opinion in Setser v. US, No. 10-7387 (S. Ct. March 28, 2012) (available here), with Justice Scalia authoring the opinion of the Court and Justice Breyer issuing a dissenting opinion (in which Justices Kennedy and Ginsburg joined). The 6-3 outcome (with all four of the newer Justices along for the ride with Justice Scalia) showcases, yet again, that the Supreme Court's work in sentencing cases is always intriguing and defies the usual left-right divide that often defines the Court's work in other areas. But the ruling is especially surprising because the Court rejected the position advocated by both the defendant and the US government, and it is especially fascinating because the opinions have a lot more "sentencing dicta" than I had expected this little case to produce.
To understand the Setser basics, here is the concluding paragraph of the majority opinion and the dissenting opinion:
Opinion in Setser: Because it was within the District Court’s discretion to order that Setser’s sentence run consecutively to his anticipated state sentence in the probation revocation proceeding; and because the state court’s subsequent decision to make that sentence concurrent with its other sentence does not establish that the District Court abused its discretion by imposing an unreasonable sentence; we affirm the judgment of the Court of Appeals.
Dissent in Setser: Because the Court does not ask why the “multiple sentencing” provision leaves out the authority at issue — concerning the not-yet-imposed sentence — it reaches what I believe is the wrong result. Consequently, with respect, I dissent.
As these final sentiments highlight, it may be only hard-core sentencing geeks like me who see reason to get worked up about this Setser ruling. Still, I recommend even the casual federal sentencing fan to take the time to review these opinions closely; it seems to me that there is a lot of "there there" upon careful reading.
March 27, 2012
The Machinery of Criminal Justice #5: From Idle Imprisonment to Work
[Stephanos Bibas, guest-blogging]
In my previous posts about my new book, The Machinery of Criminal Justice, I've sketched out a few of the ways in which punishment has changed in recent centuries and how modern punishment has become mechanistic, insulated, and hidden. In my last few posts, I'll propose a few reforms to make punishment more visibly pro-social, by encouraging work, accountability, reform, and reintegration. Today I'll focus on prison labor.
When we convict defendants of moderately serious crimes, we usually imprison them. American prisons, however, are deeply flawed. Prison severs inmates from their responsibilities, hides their punishment, and does little to train or reform them. Victims and the public do not see wrongdoers being held accountable, paying their debts to society and victims, and learning disciplined work habits. Instead, they visualize lives of idleness, funded by taxpayers. Thus, wrongdoers are unprepared to reenter society. And victims and the public, believing that wrongdoers have neither suffered enough nor learned their lessons, are loath to welcome them back.
The vast majority of prison inmates spend their days in idleness, with endless television and little labor. The minority of prisoners who do some work in a prison laundry, cafeteria, or license-plate shop rarely cultivate skills that are in demand in the outside world. Even prisoners who are able to work earn far less than the minimum wage, not enough to support a family or repay victims.
Nor is life inside most prisons structured to teach good habits such as self-discipline or productivity. On the contrary, prison encourages listless dependence on institutional routine, setting prisoners up for failure upon release. Healthy habits, such as the orderly work envisioned by prison reformers, broke down long ago.
Perhaps the most troubling aspect of imprisonment is its hiddenness. It is out of sight behind high prison walls and thus out of mind. It is too easy for the public to forget about it, to overlook the sporadic prison stabbings and rapes, or simply to discount the terrible soul-destroying, idle monotony.
Because the punishments are invisible and idle, the public never sees justice done. Voters may clamor for higher sentences to express outrage at crimes. But, because they do not see and appreciate the punishment, they have less sense of how much is enough and when inmates have paid their debts to society and to victims. Sunlight is the best disinfectant in a democracy, but prisons are shrouded in gloom.
Prisons must change from dens of idleness and crime to places of public accountability, mandatory work, and sustained reform. First and foremost, prisons must force all able-bodied prisoners to work. Governments could abolish restrictions on trade in prison-made goods and prevailing-wage requirements, relying on competitive bidding to raise wages. While medium- and maximum-security inmates would have to work in prison for security reasons, minimum-security inmates could transition back to the outside by working outside of prison, as many already do in halfway houses. Inmates might even be able to prove themselves to employers and so have jobs waiting for them upon release.
To make their work pro-social and accountable, inmates should have to use their wages to pay at least a portion of their moral and monetary debts. Perhaps a quarter of their wages could go to the government to defray the costs of investigation, conviction, and imprisonment. Perhaps a quarter could go to victims to make restitution and pay for medical care. Perhaps a quarter could go to inmates' families, requiring inmates to support their spouses and children. And the remaining quarter might go to inmates themselves, to encourage their efforts. Though these earnings might never fully repay the state or victims of serious crimes, even partial repayment would be materially and symbolically important.
Certainly there are practical obstacles. Most prisoners have few skills and many have disciplinary problems, so their unskilled labor is not especially valuable. Many law-abiding businesses and workers will fear that competition will undercut their wages and cost jobs. The political and practical hurdles are substantial enough to make this proposal a long-term hope rather than a realistic short-term goal.
That's all for now. Next I'll discuss possible military service, educational and vocational training, and drug treatment.
Stephanos Bibas, guest-blogging
Georgia poised to "nestle [its] miscreants in a down-filled feather bed of comfort"
The title of this post is drawn from an amazing line in an amazing email reportedly sent by a local sherrif to county residents in reaction to a state sentencing reform bill that just received unanimous approval from the Georgia Senate. This Atlanta Journal-Constitution piece, headlined "Senate unanimously approves sentencing reform bill," provides the details of this latest example of tight budgets prompting significant (cost-saving) sentencing reforms in a "red" state:
The state Senate on Tuesday unanimously approved legislation to reform Georgia's criminal sentencing laws to divert nonviolent drug and property offenders away from costly prison beds, saving the state tens of millions of dollars in projected corrections spending.
House Bill 1176, approved by a 51-0 vote, is intended to steer some low-level offenders to pretrial diversion programs such as drug and mental health courts and reserve the prison system for the state's most dangerous criminals.
The initiative is a top priority of Gov. Nathan Deal. The legislation must be approved once more by the House before it goes to the governor's desk for Deal's signature. House passage is a near certainty, as it initially passed the chamber with almost unanimous support.
"HB 1176 outlines much-needed reforms that will improve public safety, lower recidivism rates and bring real costs savings to Georgia taxpayers," Sen. Bill Hamrick, R-Carrollton, who handled the bill in the Senate, said. "Without action, taxpayers would have paid $264 million over the next five years to accommodate a rising prison population."...
If the bill is enacted, Georgia would follow a number of other conservative southern states -- including Texas and South Carolina -- that have already adopted so-called "smart on crime" sentencing reform legislation.
Some who have followed the legislation said it would go too far in lessening punishment for some crimes, while others said the initiative does not do enough to reform the criminal justice system.
In an email last week to Putnam County residents, Sheriff Howard Sills strongly criticized HB 1176. "Every thief, burglar, check forger and hoodlum from Trenton to Tybee, from Bainbridge to Blue Ridge will be grinning from ear to ear if this passes," Sills wrote. "When it comes to being soft on crime, this legislation will nestle our miscreants in a down-filled feather bed of comfort they never remotely thought they could slumber in."
Sara Totonchi, director of the Southern Center for Human Rights in Atlanta, disagreed. The bill, she said, "implements a very modest slice" of the reforms recommended by a special council of judges, lawyers and other officials that held meetings and issued a report on the initiative. "If Georgia is to realize the crucial cost-saving and public safety benefits that have been promised, future reforms must be far more bold and innovative than what we've seen in 2012," Totonchi said.
A key provision of HB 1176 would create new categories for drug possession crimes, with less severe penalties for those caught with small amounts of narcotics and the most severe penalties for those found with large quantities. It also would increase the felony thresholds for theft and shoplifting crimes.
"U.S. judge bars import of drug used in death penalty"
The title of this post is the headline of this new Reuters report on a seemingly significant ruling coming from the DC federal district court today. Here are the details:
A U.S. judge on Tuesday barred U.S. authorities from importing an anesthesia drug used in carrying out death sentences because the Food and Drug Administration never approved the drug for use in the United States, and he ordered supplies be confiscated.
A group of death row inmates had sued the FDA last year over improperly allowing shipments into the country of sodium thiopental, a sedative used as the first of three drugs administered in carrying out executions.
A year ago, state officials in Tennessee and Kentucky turned over their supplies of the drug to the FDA amid an investigation into how it was imported. U.S. authorities seized a supply of thiopental from state of Georgia. The FDA had sought to have the challenge dismissed, arguing that it was using its discretion by allowing the shipments into the country and also that it deferred to law enforcement with respect to the drugs used for executions.
U.S. District Judge Richard Leon sided with the inmates, criticizing the FDA for departing from its longstanding practice of not allowing unapproved drugs into the United States. "The FDA appears to be simply wrapping itself in the flag of law enforcement discretion to justify its authority and masquerade an otherwise seemingly callous indifference to the health consequences of those imminently facing the executioner's needle. How utterly disappointing!" Leon wrote in his 23-page opinion.
He also ordered that the FDA notify all state correctional departments with thiopental made overseas that they are not allowed to use it and that they must return their supplies to the agency immediately. With the supply of thiopental dwindling, Leon noted, some states have switched to pentobarbital to sedate death row inmates before they are injected with the cocktail of other drugs used to carry out death sentences....
Fordham University law professor Deborah Denno called the decision "very important" and said if the thiopental was obtained from overseas, "we don't know the conditions under which those drugs were housed and transported, which could affect their quality."
A spokesman for the Justice Department, which represented the FDA in the case, declined to comment. The agency could appeal. Bradford Berenson, a lawyer for the death row inmates, said: "It's unfortunate that FDA behaved as if there were some kind of death penalty exception to the clear requirements of federal law but gratifying that a federal judge recognized that no such exception exists."
The case is Beaty et al v. Food and Drug Administration et al in U.S. District Court for the District of Columbia, No. 11-cv-289.
Via this post about the ruling appearing at The BLT, I can here link to the full Beaty opinion. As the opinion notes, a few of the states with the most upcoming serious execution dates (Ohio, Oklahoma and Texas) have recently stopped using thiopental, so the impact of this ruling may not be profound nationwide. But it will be interesting to see if the FDA will appeal and/or if state who still rely on thiopental in their execution protocols will now be subject to inquiry and litigation concerning the source of this drug.
Amusing(?) dissent from Ninth Circuit panel's affirmance of federal sentences of over 700 years
Ninth Circuit Judge John Noonan via a short dissenting opinion today in US v. Major, No. 10-10478 (9th Cir. March 27, 2012)(available here), provides an amusing postscript to a lengthy opinion that, inter alia, rejects a constitutional challenge to a pair of extremely long federal sentences. First, via the majority opinion, here is the factual set-up (with my emphasis added):
Between December 24, 2005, and July 24, 2006, retail establishments in Fresno and Madera, California, were plagued by a string of armed robberies. Major and Huff were arrested on July 24, 2006, while attempting to flee from the scene of the robbery of Bulldog Liquor....
Major and Huff were tried together with other codefendants, and on December 22, 2009, the jury returned guilty verdicts on all counts against both Major and Huff. The district court sentenced them on March 25, 2010. Huff’s sentence included prison terms of: 121 months for each of the conspiracy and robbery counts (Counts 1, 2, and 33 through 62), to be served concurrently; 120 months for the first count of discharging a firearm (Count 3), to be served consecutive to the conspiracy and robbery sentences; and 300 months for each of the remaining 29 discharging and brandishing offenses (Counts 4 through 32), with each term to run consecutively. Major’s sentence was identical except that he was sentenced to concurrent terms of 135 months for Counts 1, 2, and 33 through 62. Thus, Huff was sentenced to 8,941 months (745 years, 1 month) and Major to 8,955 months (746 years, 3 months) imprisonment.
And here is the full text of Judge Noonan's notable separate opinion:
I concur in the opinion of the court except as to the sentences of over 700 years. The court says, “No one could dispute that a sentence of almost 750 years is harsh.” No one would bother to characterize such a sentence as “harsh.” It is simply incapable of execution.
No known human being has the capacity to live 700 years. No living human being is likely to live 700 years. On its face, the sentence is impossible to execute.
The United States asks us to affirm this sentence. It asks us to affirm a sentence that cannot be carried out. I do not believe that we should participate in this utterly empty gesture.
Liberty, commerce, the federal drug war, health care reform and the Constitution
I have not paid all that much attention to the health-care-reform litigation, although it is hard for a law professor who dabbles in constitutional theory to avoid giving the basic issues some thoughts. And now that the case is being argued before the Supreme Court (and with the buzz from yesterday's argument suggesting that the Justices are eager to get to the substantive constitutional issue at the heart of the case), I cannot help but express my two (superficial?) cents on the legal issues at the heart of the cases.
In short form, I remain deeply disappointed that the bipartisan affinity for the federal war on drugs produced the 2005 Gonzales v. Raich decision, which held that Congress had constitutional authority based on the Commerce Clause to punish via federal criminal law the "intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes." If Congress has constitutional authority under the Commerce Clause to threaten someone with a year in federal prison simply for growing and consuming a plant on their own property in an effort to feel better (and thereby seek to avoid having to purchase health care resources from others), it is hard for me to understand why Congress lacks the authority to require someone to pay a fine if he does not purchase health insurance and yet still will consume health care resources (funded in part by the Congress) if he has an emergency medical condition.
Put more directly, whether the constitutional concern is personal liberty or limits on federal power, I think it is much harder to justify the reach of the federal drug war in Raich than to justify the reach of federal health care reform and the individual mandate. But, sadly, while so many are energized and eager (mostly for political, not leagl reasons) for SCOTUS to strike down all of federal health care reform, so few in 2005 were energized and eager for SCOTUS to strike down the most extreme application of the federal drug war. This is not only disappointing, in my view, but also another great example of the old aphorism "what comes around, goes around."
Alcohol industry resistant to federal support for more DUI prevention technology
This interesting new article from Politico, which is headlined "Fight brews over DUI technology," provides another clear example why I think parents (and others) should worry much more about the harms fostered by the alcohol industry than by the marijuana industry. As these excerpts highlight, the lobbies for booze peddlers are hard at work trying to prevent the development and more widespread use of new technologies to prevent drunk driving:
Safety advocates and alcohol interests are squaring off over legislation intended to reduce alcohol-related traffic deaths through the use of devices that prevent drunken drivers from starting their cars. Tucked into the Senate’s transportation bill is a provision that directs the National Highway Traffic Safety Administration to study “more widespread deployment of in-vehicle technology” that would prevent drunken driving....
The idea is to develop some kind of nonintrusive technology based around touch or breathing that would be able to sense when a driver is drunk and disable the car. Technology on the market now — called “ignition interlocks” — require a driver to blow into a Breathalyzer device attached to the car’s dashboard and then wait 30 seconds until the sample is analyzed. Only then will the car start.
The research is trying to develop a “far less intrusive” technology more acceptable to the general public, which consumers eventually would be able to choose as an option on a new car — similar to picking leather seats or a sunroof.
Sarah Longwell, managing director of the American Beverage Institute, a group that represents alcohol distributors and restaurants that serve alcohol, said the provision is the proverbial camel’s nose under the tent that could lead to mandating these devices on all new cars. “They’re developing it for all cars as original equipment. The bill doesn’t mandate anything, but ultimately that’s what they want,” Longwell said.
But J.T. Griffin, senior vice president of public policy for Mothers Against Drunk Driving, said all the program would do is enable research. “Car companies right now are trying to figure out how to do it and if it can even be done. The goal is this would be a voluntary technology,” Griffin said. “MADD’s perspective is, we think every parent in America is going to want this on their vehicle.”...
On this portion of the bill, the American Beverage Institute is waging a pretty lonesome war. The research provision has the support of the Distilled Spirits Council of the United States, the National Beer Wholesalers Association and the Wine and Spirits Wholesalers of America.
The other provision in question — which is in both the House and the Senate versions of the surface transportation bill — has drawn more opposition. The language stipulates that if states want about 5 percent of their regularly allocated safety money, they must enact a law that requires first-time DUI offenders to install an ignition interlock device if they want to continue driving.
“Both bills take a little bit of a different approach to safety, but at the end of the day, the states that pass ignition interlocks for all convicted offenders will receive additional money,” said Griffin of MADD. “This is a huge component of MADD’s campaign to eliminate drunk driving.”...
At present, 16 states have this sort of “all-offender” mandate for ignition interlocks on their books, and an additional 22 states require them for repeat offenders or those whose blood-alcohol content was especially high. These programs generally require an offender to install an ignition interlock in order to avoid a complete driver’s license suspension for a period of time.
And, according to research by the Insurance Institute for Highway Safety, the all-offender mandate seems to be making a difference. The study examined drivers in Washington state — one of the states that has an ignition interlock mandate for first-time offenders — and concluded that recidivism fell by 12 percent among first-timers who installed an interlock.
In New Mexico — the first state to mandate an ignition interlock — expanding the mandate to include first-time offenders reduced DUI-related fatalities by 35 percent over four years, according to data made available by the office of Sen. Tom Udall (D-N.M.).
Longwell of the American Beverage Institute said her group opposes the language because it would apply to first-time offenders no matter what their blood-alcohol content was. ABI is pushing for the devices to be required only for repeat offenders or those whose blood alcohol content is .15 and higher. If a first-time offender should be given an ignition interlock, “a judge should be involved” in the decision, she said. “We treat different types of offenders differently, so we still want some kind of proportional response there,” Longwell said.
On this issue, ABI has some company. The Distilled Spirits Council, for instance, also does not support an ignition interlock mandate for first-time offenders. “We continue to strongly support the use of judicial discretion and education” for offenses involving something other than “hard-core” offenders — those who are repeat violators or who blow high alcohol levels on a Breathalyzer test, the Distilled Spirits Council said in a statement.
Udall said the proof of the all-offender interlock mandate’s effectiveness is in the statistics. “We made a dramatic difference in eight years with this,” Udall said, noting that he has been involved with pushing for policies that reduce drunken driving deaths since his time as New Mexico’s attorney general in the early 1990s. “People shouldn’t be losing their lives as a result of drunk drivers. The thing you really learn more than anything is these are preventable deaths; it’s not like they have to happen,” Udall said.
Some related posts on sentencing drunk drivers and advocacy for ignition locks:
- Getting tougher on drunk driving
- Why do we worry so much more about sex offenders than drunk drivers?
- Technology versus toughness to combat drunk driving
- Undue leniency for drunk drivers?
- More discussion of leniency for drunk drivers
- More examples of undue leniency shown to repeat drunk drivers
- "Some Coloradans drive until they kill"
- New York about to require ignition locks as mandated punishment for drunk driving
- Sentences of a few weeks for drunk driving makes Michigan judge uniquely tough
- Effective commentary complaining about undue leniency for drunk drivers
March 26, 2012
US Sentencing Commission releases new annual report and sourcebook of federal sentencing stats
Though I continue to have a severe case of March Madness thanks to my Buckeyes making it to the Final Four, the US Sentencing Commission has just posted some new goodies on its website that would also enable me to have a severe case of federal sentencing data madness. Specifically, here's what now available for download via the USSC's website:
The 2011 Annual Report presents an overview of major Commission activities and accomplishments for fiscal year 2011. See the Commission's 2011 Sourcebook of Federal Sentencing Statistics for descriptive figures, tables, and charts, and selected district, circuit, and national sentencing data.
I hope to see if there are any interesting stories to mine from these new federal sentencing materials in the next few days. Readers/commentors are welcome and encouraged to help the effort, as there is more of note in these new USSC documents.
UPDATE on 3/27: I just received this email notice of an additional release from the USSC concerning its most up-to-date full-year data runs:
The United States Sentencing Commission's Final Quarterly Data Report for fiscal year 2011 is now available on the Commission's website. The report includes an extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during fiscal year 2011. The report also provides an analysis of sentencing trends over five years for several key sentencing practices.
The Machinery of Criminal Justice #4: The Decline of Mercy
[Stephanos Bibas, guest-blogging]
In one of last week's posts on my new book, The Machinery of Criminal Justice, I noted that colonial criminal justice left room for mercy. Today I'll contrast how justice over the past two centuries has grown increasingly mechanistic and squeezed mercy out of the system.
Colonial justice embraced mercy as unfettered sovereign grace and individualized moral assessment. But to Enlightenment minds and scientists, mercy was arbitrary. Rational criminal justice, they thought, demanded equal, predictable deterrence, and mercy undercut deterrence.
Sustained criticism of exective clemency gradually restricted its use, and states gradually regulated pardons and commutations, making hearings more formal, closed to the public, and even ex parte. The clemency power, like jury nullification, came to seem lawless and unpredictable. The administrative ideal of equality across cases seemed to conflict with individualized justice and compassionate mercy. Thus, both executive clemency and jury nullification dwindled.
Another limit on mercy was the trend from indeterminate or unstructured sentences to structured sentencing guidelines. Reformers decried the dangers of arbitrariness, bias, and disparity in sentencing judges' unfettered discretion. Thus, the federal and more than a third of state sentencing systems enacted guidelines and mandatory minimum penalties to cabin harshness and mercy. The main discount available under the federal guidelines that could have related to mercy is an acceptance-of-responsibility discount. In practice, it has little to do with remorse or repentance and everything to do with whether a defendant pleads guilty.
Back in the colonial era, penalties were fixed and so nominally even less flexible than they are today. In practice, however, the rule-bound system was far more flexible than it seemed. Jurors frequently acquitted or convicted defendants of lesser offenses, and judges procured clemency for sympathetic defendants. Jurors knew the sentencing consequences of their decisions; indeed, judges advised them to take sentences into account in deciding whether to convict and for which crimes.
Today, however, jurors usually do not know the penalties, and judges instruct them to disregard sentencing in reaching their verdicts. Jurors cannot serve as the conscience of the community when they do not know what punishments they are authorizing (except in capital cases, where jurors must at least find the defendant death-eligible).
The one substantial source of leniency left is prosecutorial discretion. Prosecutors can decline to charge, drop charges, sign cooperation agreements, and recommend mercy in various other ways. Particularly sympathetic defendants may receive mercy as a result. More often, however, prosecutors use these tools as plea-bargaining chips, rewarding guilty pleas and punishing protracted litigation irrespective of the usual grounds for mercy.
This discretion hardly corresponds to the colonial model of transparent, accountable, individual moral evaluation. Unlike executives and juries, prosecutors retain discretion in part because their decisions are hidden from criticism and in part because they are supposedly making expert decisions about ranking priorities. Far from serving substantive justice and mercy, the discretion that remains in the system drives the plea-bargaining machinery.
So, that's all for now on the descriptive account of the historical changes from the colonial through the modern eras. In my last few guest posts this week, I'll offer several suggestions about how to make our punishments more transparent, pro-social, and reintegrative.
Stephanos Bibas, guest-blogging
March 26, 2012 in Clemency and Pardons, Criminal Sentences Alternatives, Guest blogging by Professor Stephanos Bibas, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack
Notable new ACLU of California report on state's prison realignment efforts
The ACLU of California has recently released this significant new report titled "Public Safety Realignment: California at a Crossroads," examining and assessing recent California efforts to deal with its prison overcrowding problems. Here is the start of the report's executive summary:
California is at a criminal justice crossroads. After decades of “tough on crime” policies and draconian sentencing practices, the state correctional system — one of the largest incarcerators in the largest incarcerating country in the world — finally buckled under its own weight. Faced with a historic U.S. Supreme Court order requiring the state to reduce overcrowding, California made a momentous decision: it would no longer take into state facilities or under state custody most people convicted of low-level, non-violent offenses, instead tasking counties with dealing with these individuals at the local level.
Legislatively codified as the Public Safety Realignment Act, or Assembly Bill 109 (AB 109), this major policy shift has put California’s 58 counties in the driver’s seat. Each county will choose its own path, but their futures are intertwined. Poor implementation in one county will inevitably affect others. All will affect California taxpayers.
The ACLU has conducted an in-depth review of all 53 available county realignment implementation plans, and we have analyzed the statutory changes and related state laws and budget allocations. We have identified four major interrelated themes:
• A troubling lack of state monitoring, data collection, outcome measurements and funding incentives to help counties successfully implement realignment.
• A dramatic increase in spending on county jails — facilitated by billions of dollars in state funding — particularly in those counties that have historically sent more people to state prison for low-level, non-violent offenses.
• A shockingly high number of people who present no real threat to public safety being held in county jails before having their day in court, incarcerated without trial simply because they cannot afford bail.
• A promising commitment — though not yet realized — by many counties to adopt alternatives to incarceration and evidence-based practices to reduce recidivism. A few counties are adopting innovative programs and approaches that can serve as models for the rest of the state, but all too often our analysis revealed few, if any, resources allocated for such programs
A dog-sniff cert grant and lots of GVRs after last week's SCOTUS criminal justice action
While most eyes and ears focused on the Supreme Court this week have a health-care-reform focus, the Justices today released an order list with some criminal justice doings (along with a couple civil case opinions). Here are the basics via this SCOTUSblog post:
The court announced orders today from its March 23 conference. The Court granted certiorari in one case, Florida v. Harris, involving the question of whether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is sufficient to establish probable cause for the search of a vehicle. The Court also issued orders granting, vacating, and remanding ten other cases in light of its prior decisions. A number of the GVRs were in light of decisions the Court issued last week in Lafley v. Cooper, Missouri v. Frye [and] Martinez v. Ryan.
March 25, 2012
Another effective review of federal sentencing severity for child porn downloaders
The Louisville Courier-Journal has this lengthy and effective article (and a few companion pieces) discussing a topic familiar to regular readers of this blog: the severeity of federal sentencing rules for those who download child pornography from the internet. The main article is headlined "Are child porn laws unfair? Viewers' sentences can be worse than molesters'," and here are excerpts:
Born with spina bifida and dependent on a wheelchair, 26-year-old Jon Michael Fox cannot hurt a soul, his mother and lawyer say. But after being caught with more than 1,200 images of child pornography on his computer, some of which he traded with others, Fox was sentenced in 2009 by a federal judge in Louisville to 14 years in prison — with no option of early release.
The Justice Department says that long sentences for offenders such as Fox — even if they have had no contact with children — are vital in slowing the demand for child porn and the abuse of children exploited in making it.
But Fox’s attorney, Frank Campisano Jr., called Fox’s sentence “ludicrous,” saying his client “never could be a threat to anyone, including a child.” Fox’s mother, Kathy, said, “He could have killed someone and got less.”
The facts appear to back her up. In 2010, about 1,800 offenders sentenced nationally for child pornography crimes in federal courts received longer average sentences than those convicted of arson, robbery, assault or even manslaughter, according to the U.S. Sentencing Commission.
In Kentucky’s Western District, the average federal sentence for child pornography was twice that for drug trafficking. Offenders released from prison also are required to submit to longer periods of supervision — sometimes for the rest of their life.
Federal offenders in the Western District of Kentucky were sentenced to an average of 10 years in prison from 2006 through last year for downloading and trading child pornography. That was nearly four times longer than offenders in Jefferson Circuit Court got for sexually abusing children, according to Courier-Journal research.
Such facts help explain a growing chorus of critics taking issue with what they say are Draconian penalties for those caught with child pornagraphy — even as they acknowledge, as do Campisano and Kathy Fox, that it is harmful....
U.S. Chief District Judge Joseph McKinley Jr. of Owensboro has said in sentencing hearings that the penalties often don’t fit the crime. “This is the first time that most of them have ever been in trouble,” McKinley Jr. s aid of such perpetrators. “And then, boom, here they are looking at 16 years in prison for engaging in their dark secret in the privacy of their own home.”
Those receiving the longest sentences in Western Kentucky had prior convictions involving sexual contact with children — including one man sentenced to life in prison. But 56 of 70 had no prior history of sexual contact with children.
The newspaper’s review found only three cases over the five-year period in which an offender was prosecuted for producing child pornography. “By and large, we never get the actual pornographers,” McKinley said at a hearing....
Former federal prosecutors in Louisville say that penalties for child pornography offenses are inordinately severe. “These are horrible crimes, but the sentences are way too long,” said Kent Wicker, a former U.S. attorney now in private practice.
Brian Butler, another former federal prosecutor, who called the penalties “insane,” cited a client he defended, Arthur Wayne Kniffley, 37, who was sentenced in 2010 to 17½ years in prison for possession and distribution of child pornography. That was more than three times the five- year sentence he got in state court 13 years earlier for molesting three children. Kniffley told authorities that he viewed child pornography to suppress his urges to commit other acts against children.
Companion pieces to this lead article are headlined "By the Numbers: Child pornography vs. other federal crimes," and "Do viewers of child porn also molest?" and "Prosecutions of child porn producers are rare."
"When lifers kill in prison, is it a waste to prosecute them?"
The question in the title of this post is the headline of this interesting piece appearing in the Denver Post. Here are excerpts:
When Dominic Stewart was found guilty this month of killing a fellow prisoner at the Supermax prison in Florence, he was already serving a life term for another murder. At sentencing, Stewart is likely to have another life term added on, raising questions about whether it was worth the government's time to pursue the case.
Prosecuting homicides is expensive and uses up government resources at a time when the economy is down, according to critics. Darren Cantor, a Denver defense lawyer who represents high-profile murder suspects, said it can cost about $500,000 to go to trial on a murder case, depending on a variety of factors. The expense can be much less, but it can also go up, costing millions if the death penalty is pursued, he said....
But prosecutors counter that you can't put a price on justice for victims, and punishing people for their crimes sends a message to other inmates that violence won't be tolerated in prison. "Sometimes justice is not an accounting exercise," said 13th Judicial District Attorney Robert Watson. "Justice isn't always measured in dollars and cents. There are still family members of victims who want to see the process run through."
Watson, whose district encompasses a prison in Sterling where four murders occurred in two years, said even smaller crimes, such as a lifer found possessing drugs in his cell, need to be punished. "We are sending the message to the guy in the cell next to him who is only doing five years," Watson said.
Mark Collins, spokesman for the Supermax prison in Colorado, agreed. "It is necessary to maintain the security and order of our institutions or a level of normalcy to the best of our ability," he said. Collins said there are a variety of methods that corrections employees can use to keep order among lifers who may think they have nothing to lose. "They could lose their visiting privileges, phone privileges, access to the prison commissary," he said.
In Colorado state prisons, 16 inmates were murdered by another prisoner from 2002 through 2010. In Colorado federal prisons, five homicides have been reported in the past seven years....
First Assistant U.S. Attorney Robert Troyer, who prosecuted Stewart, said victims — even if they were inmates with violent records of their own — deserve justice. "If you don't prosecute a murder — especially if you have a pattern of not prosecuting a murder because someone is serving a life sentence — it can be an encouragement to that dangerous segment of society to commit murder with impunity because they feel they are not going to be prosecuted," he said. "You have anarchy if you do not prosecute these crimes."
Murderers serving life sentences also have seen their convictions overturned on technicalities, and another violent conviction in prison can help ensure they will never get out. "A life sentence isn't always forever. There is no limitation on how much further down the road they can attack the conviction," Watson said.
When a murderer kills again behind bars, prosecutors will usually seek the death penalty, depending on the evidence, Troyer said. Federal prosecutors are already pursuing death sentences in the cases of Richard Santiago and Gary Watland....
If prosecutors don't seek convictions, inmates might believe that the U.S. attorney doesn't care, Troyer said. "That is a hall pass to kill anyone you want," he said.
The substance of this article provides an easy answer to the question as phrased in the title of this post taken from the article's headline: no. The much harder question is "What are the most effective and just ways to punish likers who kill?" As we have debated on this blog before, this refined question is much more challenging, especially for anyone categorically opposed to the death penalty.
A few related prior posts:
- Another tough case — murder of guard by murderer serving LWOP — for death penalty abolitionist crowd
- California seeking death for inmate murder by murderer already serving life