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March 27, 2012

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."

March 27, 2012 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

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:

March 27, 2012 in Offense Characteristics, Technocorrections, Who Sentences? | Permalink | Comments (8) | TrackBack

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:

NEW 2011 Annual Report and Sourcebook of Federal Sentencing Statistics

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.  

View the Final FY11 Quarterly Sentencing Update.

March 26, 2012 in Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

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

Asset_upload_file954_10684The 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

March 26, 2012 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

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. CooperMissouri v. Frye [and] Martinez v. Ryan.

March 26, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

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."

March 25, 2012 in Federal Sentencing Guidelines, Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (17) | TrackBack

"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:

March 25, 2012 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (57) | TrackBack