April 7, 2012
California Governor commutes sentence in shaken baby case which SCOTUS took up
This new Los Angeles Times article reports on the latest sentencing development in a high-profile state case that got the federal courts involved into legal debates over a potential wrongful conviction. The full headline for the piece provides a basic summary of the case and this latest development: "Brown commutes sentence of woman convicted of killing grandson; Shirley Ree Smith was serving time for the Van Nuys death when an appeals court freed her. Then the Supreme Court ruled she should return to prison. Questions over whether the baby was shaken arose." Here are more details from the start of the piece:
Gov. Jerry Brown on Friday commuted the potential life sentence of a woman convicted of killing her infant grandson 15 years ago, saying "it is clear significant doubts surround" her guilt.
Shirley Ree Smith, 51, who was freed in 2006 after nearly a decade in prison but was destined to be reincarcerated after a U.S. Supreme Court decision last year, said it "hasn't sunk in yet" that the threat of more prison time has been lifted. "I just can't believe this is finally over with," said Smith, choked with tears of relief, when reached at her daughter's home in Alexandria, Minn. "Everybody's so excited, but I just can't believe it."
Smith, who has always maintained her innocence, was convicted by a Van Nuys jury in 1997 of causing the death of 7-week-old Etzel Glass after testimony by coroner's officials that the infant died of a blow to the head. She was sentenced to 15 years to life in prison.
Smith's clemency petition had been bolstered by new findings disclosed last week by the Los Angeles County coroner's office and a prominent UCLA pediatrician. Deputy Medical Examiner Dr. James Ribe raised eight challenges to the 1996 autopsy, which concluded that the baby died from violent shaking, then called shaken baby syndrome and now diagnosed as abusive head trauma. Ribe asserted that the cause of death should have been ruled "inconclusive."
"In light of the unusual circumstances in this particular case, the length of time Ms. Smith has served in prison, and the evidence before me that Ms. Smith has been law-abiding since her release from prison, I conclude that reducing her sentence to time served is appropriate," Brown said in his order.
Smith was the subject of a five-year legal jousting match between the U.S. Supreme Court and the U.S. 9th Circuit Court of Appeals, which struck down her conviction in 2006, saying there was "no demonstrable support" for the prosecution's theory that she must have shaken the baby to death. She was released from prison after that ruling.
Recent related posts:
- Split SCOTUS summary reversal in California shaken-baby case involving sufficiency and habeas review
- New York Times editorial urges commutation for Shirley Ree Smith
- Is there any good reason for Governor Jerry Brown NOT to grant clemency to Shirley Ree Smith?
Interesting report on developments in prison consulting industry
Today's New York Times has this intriguing piece headlined "Making Crime Pay," which discusses industry developments in the prison consulting business. Here is how the lengthy piece gets started:
Larry Levine, heavyset and bald, runs a thriving business out of a gated apartment complex in Ventura County, Calif., a setting that’s not at all bad for a home office considering some of the prison cells he’s lived in. But as he drops into his plush beige and white sectional couch to talk business, something is nagging at him.
The trouble is the new competition. All these guys are setting up shop, marketing themselves on the Internet, claiming they know the ropes and cutting into his market share. To Mr. Levine, they’re a bunch of poseurs, with no street cred. After all, they’ve barely spent any time behind bars.
“Look at my résumé, I’ve got 10 years: high-security, medium, low,” said Mr. Levine, 50, who was in jail until 2007 on narcotics trafficking, counterfeiting and weapons charges. “These guys go in for a year and a half, maybe two. I’ve got more experience than all the rest of these guys combined.”
Mr. Levine is a prison consultant. The business — which entails advising people who are facing jail time on how to prepare for life on the inside, deal with medical issues, transfer to other prisons and even reduce their sentences — has been around for decades. It enjoys a burst of publicity when a boldface name like Bernie Madoff or Michael Vick hires a consultant.
But the business is changing. Behind the scenes, the profession is attracting a new crop of ex-cons who believe they can put their experience to work, rather than have it burden them in a tough job market. And more competition means rising tempers and flying accusations. Some prison consultants say that others are so lacking in expertise that their businesses are practically criminal enterprises. Rancor among thieves.
“This industry’s exploding,” mourned Mr. Levine, who operates two Web sites, American Prison Consultants and Wall Street Prison Consultants. He reached to a nearby coffee table and picked up a piece of paper listing the names of several dozen competitors and the length of their prison sentences. This is not a rap sheet, it’s market research. The business, he said, is “becoming saturated with people who don’t know what they’re doing.”
He and his competitors (some of whom find his prison time equally unimpressive) walk a fine marketing line, bragging about an extensive criminal record to attract customers. That can make it tough for potential clients to choose: How much incarceration time is enough? What kind of experience is right for the job — maximum security, solitary confinement, a knife fight?
To hear the consultants talk, most competitors aren’t worth the time of day. “Let’s put it this way: If I was in prison, I wouldn’t share a chow table with Larry Levine,” said William Mulholland, who founded the Real Prison Consultant in 2010. He and Mr. Levine have had words about Mr. Mulholland directing people to free online resources about the prison system.
He also said Mr. Levine routinely criticizes lawyers as money pits, which Mr. Mullholland said only alienates lawyers who could be crucial allies for the fledgling industry. (Mr. Levine said Mr. Mulholland is afraid to criticize lawyers.) "He’s like a used-car salesman,” Mr. Mulholland said of Mr. Levine.
April 6, 2012
"Moms support closure of Illinois supermax prison"
The title of this post is the headline of this notable article from the Chicago Tribune, which gets started this way:
A group critical of the treatment of prisoners at Tamms Correctional Center marched through downtown Chicago in support of Gov. Pat Quinn's proposal to close the southern Illinois prison.
Mothers of prisoners were among about 50 marchers at Wednesday's demonstration. They took aim at a union opposed to the prison's closure because it would mean layoffs for guards and other personnel. The mothers say the issue is about “human dignity, not jobs.” They marched through downtown, shouting, “No more torture, no more cages.”
Russian arms dealer gets below-guideline federal sentence of 25 years
As reported in this Bloomberg article, which is headlined "Viktor Bout Gets Minimum Prison Term of 25 Years for Weapon Plot," a notorious arms dealer actually got preety nice treatment at his federal sentencing yesterday. Here are the sentencing specifics:
Viktor Bout, the international arms dealer convicted of conspiracy for plotting to sell weapons to a Colombian terrorist group, was sentenced to 25 years in prison, the minimum term he faced.
A former officer in the Soviet Union, Bout, 45, was also sentenced yesterday to five years’ probation and ordered to forfeit $15 million by U.S. District Judge Shira Scheindlin in Manhattan.... Scheindlin rejected prosecutors’ arguments that Bout be jailed for life, saying he responded to the deal presented in the sting operation and otherwise wouldn’t have sought out an opportunity to sell weapons to be used against Americans....
Scheindlin said that while Bout “has sold weapons to some of the most vicious and violent regimes in the world,” it was unfair to impose an increased sentence applicable to terrorists. The judge said she would recommend that Bout serve his sentence near his lawyers in New York. She also said she would ask the Bureau of Prisons not to put Bout in solitary confinement.
Bout’s lawyer, Albert Y. Dayan, had urged the judge in a letter to refuse to punish Bout and not to become “an unwilling party in his wrongful prosecution.” In the hearing yesterday, he asked Scheindlin to give his client the minimum 25-year term. Federal sentencing guidelines, which are not binding, called for a life sentence, prosecutors said....
At Bout’s trial, Andrew Smulian, an associate who pleaded guilty and cooperated with the government, and two undercover agents testified that Bout offered to sell them millions of dollars in weapons, including surface-to-air missiles, armor- piercing rocket launchers and AK-47 rifles. Prosecutors said Bout, who also worked as an arms dealer in East Africa in the 1990s, controlled a fleet of as many as 50 cargo planes capable of transporting weapons and military equipment to Africa, South America and the Middle East.
During his address to the judge, which was translated by an interpreter, Bout thanked his lawyers and court officers who had shown him respect. He pointed to government agents in the courtroom and said, “Let God forgive you, and you will answer to him, not to me.”
April 5, 2012
"NY Moves to Ban Sex Offenders from Video Game Websites"
The title of this post is the headline of this news story, which includes this report on the latest effort to keep sex offenders from using the internet to have certain kinds of fun:
Registered sex offenders in New York state are being shut out of online gaming systems that have allowed them to interact with children anonymously under an agreement announced Thursday by state Attorney General Eric Schneiderman.
The deal applies only to sex offenders within state borders — boundaries that may not hold much weight in virtual gaming worlds where players young and old mix anonymously, conversing by voice and written message. "Online gaming is not just a digital playground. It has the potential to be a 21st century crime scene," Schneiderman said, citing a 2008 Pew Research Center study that found that 27 percent of teenagers acknowledge playing games online with strangers. Many games require players to interact virtually with others.
The deal may be the first of its kind to focus on online gaming; Schneiderman said he was aware of no other. Such precautions are frequently taken on more traditional social networking sites such as Facebook.
The agreement — dubbed "Operation: Game Over" by Schneiderman's office — has led companies including Microsoft and Apple to shut down or suspend communication privileges for more than 3,500 accounts. The attorney general declined to identify companies that have thus far declined to participate.
Schneiderman said his office was exploring ways in which the program could be expanded to other states. In New York, registered sex offenders are required to disclose all their email addresses and online accounts, allowing gaming companies to perform a weekly purge of player accounts associated with the offenders.
Earlier this month, Schneiderman said, a 19-year-old man pleaded guilty to sexual abuse charges after befriending a 10-year-old through Microsoft's Xbox LIVE and luring the boy to his home.
The companies that have agreed to participate in the program are Microsoft, Apple, Blizzard Entertainment, Electronic Arts, Warner Bros. and Disney Interactive Media Group.
Connecticut now far along path to abolish the death penalty after Senate vote
As reported in this local article, headlined "Death Penalty Repeal Clears Biggest Hurdle; Senate Passes Bill, 20-16," it is looking now ever more likely that the Nutmeg State will join the now sizable list of states to abolish the death penalty legislatively. Here are some interesting aspects of the legislative debate in CConnectivut:
Connecticut is poised to become the 17th state to abolish the death penalty after the Senate passed a bill early Thursday morning repealing capital punishment. The 20-16 vote came at 2:05 a.m., after more than 10 hours of debate. The measure now moves to the House of Representatives, where it has broad support. Gov. Dannel P. Malloy has pledged to sign the bill once it reaches his desk....
The fate of the repeal drive was sealed earlier this week, when several one-time supporters of capital punishment indicated they were switching their stance. Several of them spoke, often in bluntly personal terms, in the floor of the chamber.
"It's no secret I have agonized over this issue," said Sen. Edith Prague. A one-time supporter of the death penalty, the Democrat from Columbia has changed her position twice since 2009.... "I cannot stand the thought of being responsible for someone being falsely accused and facing the death penalty," Prague said, speaking slowly and deliberately as her colleagues listened. "For me this is a moral issue...I don't want to be part of a system that sends innocent people..to the death penalty."
Like Prague, Sen. Gayle Slossberg, D-Miford, said she has spent many sleepless nights wrestling with the moral implications of capital punishment. "Does a moral society execute people?'' she asked. "Haven't we then become the evil we're trying to eliminate?" Slossberg had been a defender of the death penalty but she, too, has come to reassess her position. "For me, the most compelling reason to reject the death penalty is to set ourselves on the path to the kind of society we really want for our future," she said....
The bill would replace the death penalty with life in prison without the possibility of release. It stipulates that the 11 men currently on Connecticut's death row would still face execution; capital punishment would only be abolished for those convicted of capital offenses in the future.
The measure passed largely along party lines, with two Democrats — Paul Doyle of Wethersfield and Joan Hartley of Waterbury — joining the Republicans in rejecting the bill. Prague and Slossberg were among the small circle of senators whose votes were considered key in winning passage for the bill....
Sen. Carlo Leone, a Democrat from Stamford, has also wavered on the issue. In the past, he had backed capital punishment, but a visit to the state's maximum security prisons, including death row, prodded him to reassess his view. "I wanted to dispel any rumors of people who would say it's recreational, there's luxuries, there's privileges," Leone said. "And let me be clear ... neither one is a happy place to be." Indeed, Leone described the prisons as dark and dreary places. "The cells are very small," he said, and there are no windows to speak of....
The prospective nature of the bill is a political compromise: Several lawmakers, including Prague, have said they would only back the repeal if it makes an exception for the current occupants of death row. And Gov. Malloy has said he will only sign a prospective bill. "What we're doing today is not intellectually honest," Doyle said. "Take the politics aside. It should be up or down, but this being a political world, that's what were voting on today."
In another bid to win support for the bill, Senate Democrats offered what one staff member called a "game-changing amendment" — it stipulates harsher sentences for those convicted of capital crimes. The amendment cleared the chamber on a 21-14 vote — with all Democrats in favor, and all Republicans opposed.... As described by Democratic proponents, such a system would essentially replicate life on death row, but without the possibility of execution looming....
Connecticut has executed one man — serial killer Michael Ross — since 1960. Ross ultimately waived his appeals and sought to be executed, an indication, said Sen. Toni Harp, that life in a maximum security prison is indeed a grim existence. "I disagree with those of you who believe that the death penalty is the ultimate punishment,"' said Harp, a New Haven Democrat. "Death is something that is the common denominator, it is something we all face in our lives one way or another." In contrast, life on death row was so bleak, Ross sought death as a remedy.
Recent related posts:
- Despite increased public support, Connecticut legislature again discussing death penalty repeal
- Marching bishops perhaps take Connecticut to verge of repealing its death penalty
April 4, 2012
Lengthy federal prison terms for some NOPD officers involved in post-Katrina shootings
As reported in this CNN piece, a "federal judge Wednesday sentenced five former New Orleans police officers to prison terms ranging from six to 65 years for the shootings of unarmed civilians in the chaotic aftermath of Hurricane Katrina." Here are the specifics:
The shootings occurred on the Danziger Bridge on September 4, 2005, six days after much of New Orleans went underwater when the powerful hurricane slammed into the Gulf Coast. The ex-officers were convicted in August on a combined 25 counts of civil rights violations.
U.S. District Judge Kurt Engelhardt imposed the stiffest sentence on former officer Robert Faulcon, who was handed a 65-year term for his involvement in shooting two of the victims. Former sergeants Kenneth Bowen and Robert Gisevius got 40 years for their roles in the incident, while ex-officer Robert Villavaso was sentenced to 38 years.
The lightest term went to former detective sergeant Arthur Kaufman, who was sentenced to six years for attempting to cover up what the officers had done, according to the U.S. attorney's office in New Orleans.
The men were accused of opening fire on an unarmed family, killing 17-year-old James Brissette and wounding four others. Minutes later, Faulcon shot and killed Ronald Madison, a 40-year-old man described by Justice Department officials as having severe mental disabilities and who was trying to flee the scene when he was shot, according to the Justice Department.
At the time, New Orleans police said they got into a running gun battle with several people. Prosecutors said Kaufman wrote the department's formal report on the incident, which concluded the shootings were justified and recommended the prosecution of two of the survivors "on the basis of false evidence."
During the trial, the defense asked the jury to consider the stressful circumstances the officers were operating under following Katrina. The shootings took place during a week of dire flooding, rampant looting and death by drowning, and police were strained by suicides and desertion among their ranks.
But U.S. Attorney Jim Letten said the prison sentences send the message that "when the crisis we face is the most threatening, that when the challenges are the greatest, the rules don't go out the window."...
Romell Madison, brother of victim Ronald Madison, told reporters after Wednesday's proceedings that his family was happy with the sentences, even though prosecutors had to enter into plea agreements with several other officers to obtain the convictions. "I think it made a big difference, even though they did give them lower sentences, that they did come forth and testify to get the truth out," Madison said. "At least we got to the truth."
Five other officers, including a lieutenant, have already pleaded guilty and been sentenced to prison terms of up to eight years in the case for conspiracy and obstruction of justice. Letten said the plea deals were necessary to break a "logjam" that had prevented investigators to get the whole story of what happened on the Danziger Bridge, in New Orleans East.
This lengthy DOJ press release about the case provides a lot more details about the crimes and evidence in this high-profile case. It also provides this accounting of the sentences given to the defendants who pleaded guilty:
The five former NOPD officers who pleaded guilty before trial, admitting that they had participated in a conspiracy to obstruct justice and cover-up what happened on Sept. 4, 2005, were all sentenced previously. Former Officer Mike Hunter was sentenced to serve eight years in prison; former officer Ignatius Hills was sentenced to serve six-and-a-half years; former officer Robert Barrios was sentenced to serve five years; former lieutenant Michael Lohman was sentenced to serve four years; and former detective Jeffrey Lehrmann was sentenced to serve three years.
For various reasons, this high-profle case presents an interesting case-study on the so-called "trial penalty" because it would appear that all officers involved in the shootings who pleaded guilty got sentences of 8 years or less while those officers involved in the shootings who exercised their trial rights all got sentences roughly five times longer.
Ohio apparently now allowed to restart (carefully) its machinery of death
As reported in this local article, which is headlined "Federal judge says execution of Portage County killer can move forward," a federal district judge who has blocked some recent Ohio execution plans has now changed the constitutional red light to yellow for the state's execution plans. Here are the details from the article:
A federal judge has cleared the way for this month’s execution of Portage County killer Mark Wiles. In a sternly worded decision April 4 that starts with the question “Can Ohio Be Trusted?” and ends with “some trepidation,” Judge Gregory Frost denied a temporary restraining order to block the April 18 lethal injection, essentially accepting a revised execution process outlined by the Ohio Department of Rehabilitation and Correction.
But in the 49-page ruling, Frost wrote that he was skeptical state prison officials would actually follow through on their execution protocols, and he gave a warning against future failures. “They must recognize the consequences that will ensue if they fail to succeed in conducting a constitutionally sound execution of Wiles,” Frost wrote. “They must recognize what performing a constitutionally sound Wiles execution and then returning to the flawed practices of the past would mean.”
The decision met with mixed reaction, with prosecutors saying Wiles’ execution is long overdue. “We’re encouraged that justice could finally be done in this case and that the family will finally have some closure,” said Portage County Prosecutor Vic Vigluicci. He added later, “Certainly, 26 years is more than adequate to ensure all of his rights of appeal and his constitutional rights have been protected. That’s too long, actually.”
But Attorney General Mike DeWine said he is considering appealing the ruling. Though the outcome is in the state’s favor, DeWine said he takes issue with Frost’s underlying argument. “We think the rationale is not legally correct,” DeWine said. “And even though we ‘won’ this case, we think it presents some huge problems from a practical point of view in the future. And so we’re looking at it. We have not decided we’re going to appeal, but we very well may appeal this decision.”
Wiles has been on Death Row for the knifing murder of Rootstown teen Mark Klima more than 25 years ago after the 15-year-old caught the Portage County man burglarizing his family’s home. Legal counsel for Wiles are seeking clemency in the case, saying that he has admitted his guilt, is remorseful over the killing and has displayed good behavior while in prison. But Wiles was uncooperative during the clemency process, and the state parole board unanimously recommended against a sentence commutation to life in prison without the possibility of parole. Gov. John Kasich has final say on the matter.
Pending other possible legal challenges, Wiles would be the first inmate to make the trip to the Death House at the Southern Ohio Correctional Facility since late last year. Earlier this year, Frost blocked the state from carrying out two executions, including one for Charles Lorraine, convicted in the heinous knifing murders of an elderly couple in Warren.
Some related posts concerning Ohio's recent lethal injection litigation:
- Federal district judge finds Equal Protection Clause violated by Ohio's injection processes
- New Ohio lethal injection ruling provides lessons in litigation realities, the rule of law and a law of rules
- Ohio decides not to appeal federal district court ruling in Smith halting execution
- Ohio ready to try to get its machinery of death back in operation
- Federal judge again halts Ohio execution because state not following its own protocol
- Sixth Circuit panel upholds stay of Ohio's next planned execution
- Ohio asks SCOTUS to vacate stay of state execution
- Another Ohio execution postponed due to execution protocol issues
- US Supreme Court refuses to vacate execution stay in Ohio
- Which elected official(s) should Ohio voters hold accountable for the legal mess with its execution process?
"Justice in the Shadowlands: Pretrial Detention, Punishment, and the Sixth Amendment"
The title of this post is the title of this notable new paper from Professor Laura Appleman now available via SSRN. This paper seems especially timely in light of the Supreme Court's ruling in Florence earlier this week concerning strip searching of arrestees (basics here). Here is the abstract from this paper:
In a criminal system that tips heavily to the side of wealth and power, we routinely detain the accused in often horrifying conditions, confined in jails while still maintaining the presumption of innocence. Here, in the rotting jail cells of impoverished defendants, are the Shadowlands of Justice, where the lack of criminal procedure has produced a darkness unrelieved by much scrutiny or concern on the part of the law.
This article contends that our current system of pretrial detention lies in shambles, routinely incarcerating the accused in horrifying conditions often far worse than those convicted offenders existing in prisons. Due to these punitive conditions of incarceration, pretrial detainees appear to have a cognizable claim for the denial of their Sixth Amendment jury trial right, which, at its broadest, forbids punishment for any crime unless a cross-section of the offender’s community adjudicates his crime and finds him guilty. This article argues that the spirit of the Sixth Amendment jury trial right might apply to many pretrial detainees, due to both the punishment-like conditions of their incarceration and the unfair procedures surrounding bail grants, denials and revocations. In so arguing, I expose some of the worst abuses of current procedures surrounding bail and jail in both federal and state systems. Additionally, I also propose some much needed reforms in the pretrial release world, including better oversight of the surety bond system, reducing prison overcrowding by increasing electronic bail surveillance and revising the bail hearing procedure to permit a community “bail jury” to help decide the defendant’s danger to the community.
Kansas Supreme Court rules that repeat dog molester can avoid sex offender registration
As reported via this local article, the Kansas Supreme Court "has decided that a Sedgwick County man who molested a rottweiler won’t have to register as a sex offender." Here is more about the ruling:
The state’s highest court overturned both Sedgwick County District Court Judge Joseph Bribiesca and the Kansas Court of Appeals, who had ruled Joshua Coman would have to register as a sex offender after his second conviction for sodomy involving a dog.
In his appeal, Coman argued that Kansas’s registration law did not apply to him because he was convicted of a misdemeanor that wasn’t on the list of felony offenses for which registration is required....
In 2008, a former roommate of Coman’s “discovered Coman in her garage with the dog in a compromising position,” the court record said. Police were called and Coman admitted to having penetrated the female rottweiler with his finger, the court record said. At the time, he was on probation after being prosecuted on a similar incident in Reno County the year before. Coman pleaded guilty and was sentenced to six months in jail.
But the question of whether he would have to register as a sex offender came down to interpretation of the way the law is worded. The statute lists several crimes where sex-offender registration is required, including felony sodomy. Misdemeanor sodomy is not on the list.
Prosecutors had argued that a “catch all” provision in the law would allow a judge to require offender registration of anyone convicted of a “sexually motivated” crime. The Supreme Court justices disagreed, concluding that the Legislature excluded misdemeanor sodomy on purpose.
The full opinion in Kansas v. Coman is available at this link.
I wonder if (when) PETA or similar animal groups in Kansas will soon urge the legislature to fix this registry loophole which, obviously, now places all the innocent dogs in Kansas at greater risk. (Indeed, I am glad Toto is not alive to learn of this notable jurisprudential development.)
April 3, 2012
Marching bishops perhaps take Connecticut to verge of repealing its death penalty
As reported in this local article, which is headlined "Senate To Raise Death Penalty Repeal Wednesday" and is accompanied by the picture reprinted here, it appears that Connecticut may be on the verge of repealing its death penalty. Here are some of the interesting details of the still-on-going legislative debate:
The state Senate is poised to raise a bill to prospectively abolish the death penalty during Wednesday’s session with the support of previously undecided Sen. Edith Prague. The news broke Tuesday as Bishops of the Episcopal Diocese of Connecticut led a march on the Capitol with group of about 120 people calling for the end of capital punishment. The state Capitol complex was the last stop on a “Stations of the Cross” trip, during which the Bishops depicted the events leading up to the Romans’ execution of Jesus.
Bishop James Curry said the idea was to take the annual Holy Week prayers to the streets of Hartford and to focus on repealing the death penalty. “We’re looking for justice for victims and victims’ families, and justice for our society. It’s truly about what we want to say we are as a society and I think the death penalty turns us to the worst we are: seeking revenge rather than just punishment,” he said.
Sources say the death penalty will come up for a vote during Wednesday’s session. The fact that lawmakers are considering raising the bill indicates they’re confident they have at least enough votes for an 18-vote tie in the sharply divided chamber. Lt. Gov. Nancy Wyman has announced her intention to break a tie vote in favor of repeal.
Prague, one of the three senators who has been on the fence over the issue this year, said Tuesday she would vote for repeal if she could be assured the legislation will not provide the grounds for appeals by the 11 inmates currently on death row. “I am fully prepared to vote for repeal with the caveat that I stand up on the floor and get documentation from the chair of the Judiciary Committee that this in no way gives judges any discretion to apply this repeal to the people who are currently on death row,” she said.
Prague said judges have a lot of discretion in their courts, so the legislation must “make it very loud and very clear that this repeal can not apply to anyone who is on death row.”
Senate Minority Leader John McKinney doubted anyone could give Prague such an assurance. Even if language is inserted into the bill stipulating the law was not intended to apply to inmates already sentenced to death, McKinney said the courts will view that as immaterial. “That’s a decision that will be decided in the courts,” McKinney said. “No one disputes that there will be a legal challenge brought by the public defender’s office and the weight of the legal experts is to say that a prospective death penalty won’t pass constitutional muster.”
Assuming Prague does support repeal, her vote alone won’t be enough to tip the scales of the chamber far enough to reach a tie. Sen. Andrew Roraback, who has previously supported repeal, has announced his intention to vote against the bill this year unless the legislature repeals a program which gives inmates the opportunity to reduce their sentences by participating in re-entry programs.
“The early release program, the more I have learned about it, the more committed I am to not letting us repeal the death penalty unless we repeal that as well,” Roraback said Tuesday. “The fact that nobody will give these people the time of day is a really sad commentary on the institution of the legislature and the relationship of the legislature and the Judicial Branch to victims of crime.”...
McKinney said he’s hoping tomorrow’s debate will convince anyone who is considering supporting the bill to abandon their support. Sen. John Kissel, R-Enfield, said he expects a long debate.
Kissel, a supporter of the death penalty, was tight-lipped Tuesday on what amendments he intends to offer during the debate, but in the past he has expressed interest in requiring that inmates convicted capital murder be held in solitary confinement. Kissel said he wouldn’t be surprised to see Democrats offer a similar amendment Wednesday. He said it was flattering they had embraced his idea but suggested it supports the notion that inmates currently on death row won’t be put to death if the bill passes. If the bill is truly prospective, why is there concern over the living conditions of those inmates, he asked.
McKinney said Republicans may offer another amendment that would make the death penalty more workable in the state rather than abolish it. Roraback likely will try to amend the bill to repeal the inmate early release program. Advocates in favor of repeal, like Executive Director Ben Jones of the Connecticut
Network to Abolish the Death Penalty, said he’s on pins and needles in anticipation of this year’s vote. Last year, efforts to repeal the death penalty died when the Senate was unable to come up with the necessary votes. It passed both chambers in 2009, but was vetoed by former Gov. M. Jodi Rell. “I will be nervous until it passes the House,” Jones said. While Jones said he isn’t as nervous about the votes in the House, where there’s a much more comfortable margin in favor of repeal, he said he’ll sleep a little better after both chambers vote.
Ohio Supreme Court finds required juve sex offender registration unconstitutional on numerous grounds
As reported in this lengthy official press release, the "Supreme Court of Ohio today voided as unconstitutional provisions of the Ohio Adam Walsh Act (AWA) that impose automatic lifelong registration and community notification requirements on certain juvenile sex offenders who were tried within the juvenile court system." Here is more on this significant state Supreme Court ruling which has national implications:
In a 5-2 majority decision authored by Justice Paul E. Pfeifer, the court held that applying automatic lifetime sex offender registration and community notification requirements imposed by the AWA against an Athens County 15-year-old violated the prohibitions in the U.S. and Ohio constitutions against cruel and unusual punishment, and also violated the defendant’s constitutional right to due process of law....
ustice Pfeifer’s opinion was joined by Chief Justice Maureen O’Connor and Justices Evelyn Lundberg Stratton, Judith Ann Lanzinger and Yvette McGee Brown. Justices Terrence O’Donnell and Robert R. Cupp entered separate dissenting opinions.
The full opinions in In re C.P., No. 2012-Ohio-1446 (Ohio Apr. 3, 2012) (available here), run 53 pages and they are all must reads for any and everyone who follows juvenile justice issue or sex offender registration issues or Eighth Amendment jurisprudence. Here is how the majority opinion gets started:
In this case we determine the constitutionality of R.C. 2152.86, which creates a new class of juvenile sex-offender registrants: public-registry-qualified juvenile-offender registrants. These offenders are automatically subject to mandatory, lifetime sex-offender registration and notification requirements, including notification on the Internet. We hold that to the extent that it imposes such requirements on juvenile offenders tried within the juvenile system, R.C. 2152.86 violates the constitutional prohibition against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution and the Ohio Constitution, Article I, Section 9, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the Ohio Constitution, Article I, Section 16.
April 3, 2012 in Assessing Graham and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
"Racial Disparities, Judicial Discretion, and the United States Sentencing Guidelines"
The title of this post is the title of this new empirical paper available via SSRN authored by Joshua Fischman and Max Schanzenbach on a topic that has already generated significant conflicting empirical analyses and that is always of interest to federal sentencing policy-makers. Here is the abstract:
The United States Sentencing Guidelines were instituted to restrict judicial discretion in sentencing, in part to reduce unwarranted racial disparities. However, judicial discretion may also mitigate disparities that result from prosecutorial discretion or Guidelines factors that have disparate impact. To measure the impact of judicial discretion on racial disparities, we examine doctrinal changes that affected judges’ discretion to depart from the Guidelines. We find that racial disparities are either reduced or little changed when the Guidelines are made less binding. Racial disparities increased after recent Supreme Court decisions declared the Guidelines to be advisory; however, we find that this increase is due primarily to the increased relevance of mandatory minimums. Our findings suggest that judicial discretion does not contribute to, and may in fact mitigate, racial disparities in Guidelines sentencing.
April 3, 2012 in Booker and Fanfan Commentary, Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Race, Class, and Gender | Permalink | Comments (0) | TrackBack
Arkansas parole board assessing total internet ban for all released sex offenders
As reported in this recent local story, headlined "Arkansas board eyes Internet ban for sex offenders," officials in the Natural State are considering a broad (unnatural?) restriction on all released sex offenders. Here are the basics:
Some freed sex offenders will be able to send e-mails and browse the Web for a while longer while the state Board of Parole researches whether it can adopt a policy that bars convicted sex offenders from using the Internet without infringing on their First Amendment rights.
The board had been scheduled to vote Thursday, at a meeting in Hot Springs, on a proposal to prohibit all paroled sex offenders from using the Internet -- at least for an initial period after their release from prison. The board now restricts sex offenders' Internet access on a case-by-case basis.
But the board put off discussing imposing the broader restriction at the request of Chairman John Felts, who said the state attorney general's office is researching whether such a ban would be constitutional. "We just want to make sure that we don't make a ruling that we have to back off of," Felts said....
At that meeting, Knoll said parole officers have found that offenders are frequently using the Internet to download child pornography and communicate with children. Under the proposal, all sex offenders would initially be barred from accessing the Internet, but they could request permission to use it for a specific purpose, such as for use in the workplace.
Felts said he discussed the proposal Monday with Graves and Assistant Attorney General Arnold Jochums, a legal adviser to the board, and Jochums requested more time for research. He said the board also contacted the Association of Paroling Authorities International, which agreed to survey states on their policies.
In a phone interview, criminal-defense attorney Jeff Rosenzweig of Little Rock said it's a "close question" on whether the board could bar offenders' Internet access. But he called the policy "ill-considered, particularly since so much of life and commerce and everything else like that has gone to the Internet. It would put them at even more of a disadvantage in trying to be law-abiding, to reintegrate back into society," he said.
In Louisiana, a federal judge ruled that a law prohibiting certain types of sex offenders from using social networking sites, chat rooms and peer-to-peer networks was an unconstitutional restriction on free speech. Unlike the Arkansas policy, however, the law made accessing the sites a crime and applied to offenders who were no longer under state supervision. Pam Laborde, a spokesman for the Louisiana Department of Public Safety and Corrections, said the state's Parole Board now imposes restrictions on a case by-case basis.
In Texas, a Board of Pardons and Paroles policy, adopted in 2009, prohibits certain sex offenders from using social-networking sites, using the Internet to gain access to obscene material, communicating through the Internet with anyone they know to be under 17 or communicating on the Internet about sexual topics with anyone under 17, whether the offender knows the person's age or not.
The Texas restriction applies only to offenders deemed to be at high risk of re-offending and whose convictions involved the use of a computer. Offenders can petition for an exception if the restriction interferes with the ability to attend school or perform duties at work.
As I have noted before, just whether, when, and how sex offenders can be prohibited from getting on-line is a challenging legal issue that seems certain to arise in many jurisdictions in many different ways. I suspect it is only a matter of when, not if, this issue in some variation eventually get to the Supreme Court.
Some related posts:
- Federal judge finds unconstitutional broad state law limiting sex offender internet activity
- Should all sex offenders be barred from Facebook and MySpace?
- Is it constitutional to criminalize having a Facebook page?
April 2, 2012
"Feds raid 'Princeton of Pot' in California"
The title of this post is the headline of this new Reuters article, which gets started this way:
Federal agents raided a cannabis cultivation college on Monday in the San Francisco Bay area widely known as the "Princeton of Pot" and the "Harvard of Hemp," authorities said, as the U.S. government pressed its clamp-down on medical marijuana.
The sweep turned the college, which offers courses in the growing and dispensing of marijuana, into the latest flashpoint between federal law enforcement and medical cannabis advocates in California and other states where pot has been decriminalized for medicinal purposes. "This is clearly an attack on regulation," Oaksterdam University Chancellor Dale Sky Jones said. "They just went after a school that tries to teach people how to do things legally."
Several dozen protesters gathered at the school after the raid, some of them openly smoking joints as they carried signs that read "End federal interference" and "Cannabis is medicine." Oakland police handcuffed at least one demonstrator, but the reason for the arrest was not immediately clear.
Jones said veteran medical marijuana activist and Oaksterdam founder Richard Lee was awakened on Monday morning by federal agents conducting a separate search of his home, but he was not arrested. Federal authorities said raids at Oaksterdam and other unspecified locations were carried out under a federal search warrant that was sealed by a judge, and they gave few details.
David McCullick, a faculty member at Oaksterdam, said a marijuana museum near the school and a medical cannabis dispensary run by Lee were also raided. He said the school's "grow lab" contained at most 80 to 90 small cannabis plants, while the museum contained a single plant encased in glass. "Here you've got a school that's licensed by the city," he said. "It's just a school. It's freedom of speech," he said.
Joycelyn Barnes, special agent for the U.S. Drug Enforcement Administration's San Francisco Division, said DEA officers were joined by personnel from the Internal Revenue Service and the U.S. Marshals Service in the operation.
I sure am glad to hear that crime is so low throughout the San Francisco Bay area that the feds have enough time and extra man-power to worry about what is being taught at the "Harvard of Hemp." I sure hope the mass shooting going on down the block (sad news story here) did not distract the federal authorities from having all the man-power they need to ensure we are all kept safe from the wicked weed!
Is it just me, or are this Term's SCOTUS opinions notably (and usefully) shorter?
The question in this title of this post is prompted by my pleasant discovery that both criminal justice opinions handed down by the Supreme Court this morning (basics here) were significantly shorter than I had expected them to be given how long they took to come out. (Rehberg was argued November 1, 2011; Florence way back on October 12.) Similarly, I was pleasantly surprised with the relative brevity of the Court's pronouncements (and the dissent's complaints) in the huge Sixth Amendment rulings of Frye and Lafler a few weeks ago (discussed here and here and here).
Because I do not read all of the opinions handed down by SCOTUS, nor do I keep systematic track of opinion authorship and word-count, I may be way off base in concluding that brevity is now becoming the soul of SCOTUS wit. Still, it would make lots of sense that in a Term so full of so many big cases requiring lots of reading and preparation (and internal discussion?) that there is precious little time and energy left for writing very long opinions. Moreover, in addition to just wondering aloud on this front, I also wonder if others share my sense that any move to shorter (and fewer) SCOTUS opinions is a change generally for the better.
New poll from Pew Center suggests significant public concerns with prison populations and costs
Via this website entry (which I discovered thanks to the The Crime Report), I see that the folks at The Pew Center on the States "collaborated with two of the nation's leading polling firms, The Mellman Group and Public Opinion Strategies, to explore public opinion on sentencing and corrections issues across the country." Here is more from the web description of the poll and its findings:
The firms conducted a national survey of 1,200 likely voters to measure underlying attitudes and support for specific policy changes. Download the summary of findings. (Adobe PDF)
• American voters believe too many people are in prison and the nation spends too much on imprisonment.
• Voters overwhelmingly support a variety of policy changes that shift non-violent offenders from prison to more effective, less expensive alternatives.
• Support for sentencing and corrections reforms (including reduced prison terms) is strong across political parties, regions, age, gender, and racial/ethnic groups.
A quick review of the full the summary of findings document suggests that there is a lot more to glean from this poll than just what Pew lists above as "Key Takeaways." In addition, it does not seem as though the poll asked any specific questions about marijuana law and punishment, which seems like a real missed opportunity give the detail in which this poll went into on other issues. Still, as Pew suggests, this survey can and should provide even more momentum to on-going efforts in various jurisdictions to reduce prison populations and associated costs.
April 2, 2012 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9) | TrackBack
Former US Attorney, and now District Judge, makes pitch to AG Holder on mandatory minimum charging
Thanks to a helpful reader, I just learned about the potent opinion issued late last week by US District Judge John Gleeson in United States v. Dossie, No. 11-CR-237 (E.D.N.Y. March 30, 2012) (available for download below). The opinion is a must-read for various reasons as these opening paragraphs suggest:
This case illustrates how mandatory minimum sentences in drug cases distort the sentencing process and mandate unjust sentences. In the substantial percentage of cases in which they apply, they produce a sentencing regime that is worse than the one the Sentencing Reform Act of 1984 was enacted to replace. They make opaque what that law was intended to make transparent. They strip criminal defendants of the due process rights we consider fundamental to our justice system. Most importantly, too many nonviolent, low-level, substance-abusing defendants like Jamel Dossie “lose their claim to a future” -- to borrow a phrase from Attorney General Eric H. Holder, Jr. -- because lengthy mandatory prison terms sweep reasonable, innovative, and promising alternatives to incarceration off the table at sentencing.
There is no need for new legislation to remedy this state of affairs. The Attorney General himself has it within his power to remedy it. He can do so by
- citing to the ten-year mandatory minimum in an indictment only when the government intends to prove that the defendant occupied a leadership role that warrants a four-level upward adjustment under U.S.S.G. § 3B1.1(a);
- citing to the five-year mandatory minimum only when the government intends to prove a managerial role worthy of a three- or two-level upward adjustment under § 3B1.1(b) or (c); and
- withdrawing the mandatory minimum provision from the case (or reducing it, as the case may be) if the corresponding aggravated role has not been proven by the government or admitted by the defendant.
I respectfully urge the Attorney General to implement such a policy. It is a modest request. It asks only that the Department of Justice (“DOJ”) refrain from dictating severe mandatory minimum penalties when it cannot prove by a preponderance of the evidence that the defendant was the kind of drug dealer for whom those penalties were enacted. By ensuring that the harsh, wooden mandatory minimum provisions are employed only in the circumstances to which Congress clearly intended to limit them, the government could reform an aspect of the criminal justice system that is in need of repair. The reform would promote transparency and accountability in sentencing and return to defendants the due process sentencing rights that are snuffed out in cases like this one. Finally, it would be consistent with the Attorney General’s public statements about how our criminal justice system ought to treat defendants like Dossie.
April 2, 2012 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9) | TrackBack
Lots more interesting criminal justice work from SCOTUS via orders and opinions
Though the Supreme Court will not be hearing argument for the next two weeks, the Justices provides still more reason for criminal justice folks to buzz about their work through the issuance of notable orders and opinions this morning. SCOTUSblog, of course, is the place to go for all the SCOTUS news, and here is the live-blogging summary of some of the Court's work this morning:
[A grant in] 11-702, Moncrieffe [v. Holder, which concerns whether state conviction that covers distribution of a small amount of marijuana without remuneration constitutes an "aggravated felony" for deportation purposes]...
First opinion: 10-788, Rehberg v. Paulk (Alito), affirmed 9-0. A governmental grand jury witness has the same absolute immunity as a trial witness. The opinion in Rehberg is here.
[Second opinion:] 10-945, Florence -- affirmed. Justice Kennedy writes the opinion, except as to Part IV. Roberts, Scalia, and Alito join the Kennedy opinion in full; Thomas in part. Breyer writes the lead dissent. The search procedures at the jails strike a reasonable balance. Roberts and Alito write concurring opinions. The part of the opinion that Thomas does not join says the Court leaves open what to do when the inmate will not be admitted into the general jail population. Here is the opinion.
The Alito concurrence joins the opinion but says it is limited to admission to the general population without physical contact. The Roberts concurrence draws attention to the fact that Florence was arrested on a warrant and had to be admitted to the general jail population. It's unclear how much the Court has decided.
Final opinion: 11-199, Vasquez [concerning harmless error review] -- dismissed as improvidently granted.
There is much of criminal justice interest in all of these ruling, though arguably nothing that significant to hard-core sentencing fans. Still, I suspect the ruling, the voting particulars and the dicta of Florence is a matter on which I will have later commentary. In the meantime, here is part of Lyle Denniston's first take on the Court's work regarding jails and strip searching:
Insisting that it has no expertise in how to run a jail or prison, the Supreme Court divided 5-4 Monday in ruling that every person arrested and held temporarily can be subjected to a routine strip search, so long as it involves only a visual inspection without touching or abusive gestures. The prisoner, however, may be told to manipulate some part of the body. A partial split within the five-Justice majority made it appear that the decision did not authorize jail officials to conduct a strip search unless the prisoner was to be placed among other prisoners at the facility. Two Justices wrote separately in an effort to narrow the ruling, and their votes were essential to the 5-4 result.
The decision was a clear defeat for challengers to strip searches as a general policy. The Court explicitly refused to limit the authority to use such searches only to situations in which a specific individual gave officers a reason to consider that prisoner to be dangerous or likely to be carrying a concealed weapon or drugs. The same kind of visual inspection of an arrestee’s naked body, the Court declared, can be applied to anyone placed in the general population of a jail or prison, even if only temporarily.
The ruling also was a personal defeat for a Burlington County, N.J., man, Albert W. Florence, who was subjected to strip searches at two county jails over a six-day period of confinement after he had been arrested while driving on a state highway, based upon an out-of-date warrant. The warrant was for failure to pay a fine, but he had actually paid the fine; court records had not been updated. Florence has contended in public comments that he believed he had been targeted because he was a black man driving an expensive car.
As if somehow to help justify its ruling against his challenge to the strip searches, the Court’s main opinion by Justice Anthony M. Kennedy opened with a description of Florence’s earlier run-in with police, seven years before the arrest that led to the strip searches.... Although the Kennedy opinion would later say that police need not make a strip search policy depend upon an arrested individual’s prior history in crime, the inclusion of the background material about Florence’s history appeared to be aimed at showing that police could not know the character of any individual they had brought in, and thus needed a policy applying to all to ensure that no threat would enter the facility with that prisoner.
April 1, 2012
Did severe sentence impact Arkansas Supreme Court's teacher-student "right to sex" ruling?
As noted in this Reuters article, the "Arkansas Supreme Court struck down a state law on Thursday that banned teachers from having sex with students under age 21, overturning a sexual assault conviction against a former teacher who had a consensual relationship with an 18-year-old student." The Arkansas Supreme Court's ruling in Paschal v. Arkansas, 2012 Ark. 127 (Ark. Mar. 29, 2012) (available here), is based on the Arkansas Constitution and a prior state ruling concerning right to sexual autonomy among consenting adults. Here is more on the ruling (with my emphasis added) via the Reuters report:
In a 4-3 decision, the court vacated the conviction against David Paschal, a former teacher in the Elkins School District in northern Arkansas, because the girl was legally an adult during the relationship.
For about five months, Paschal, then 36, had a consensual sexual relationship with the female student at Elkins High School, according to court documents. The girl had been a student of Paschal in tenth and eleventh grades, and she later became his classroom aide and offered to babysit his children. The two began their affair in 2009, when she was a senior, and Paschal was arrested the following year.
In 2011, he was convicted of four counts of second-degree sexual assault and one count of bribing a witness at a jury trial last year. He was sentenced to 30 years in prison.
"Regardless of how we feel about Paschal's conduct, which could correctly be referred to as reprehensible, we cannot abandon our duty to uphold the rule of law when a case presents distasteful facts," Chief Justice Jim Hannah wrote in the decision. The issue presented to the court hinged on "Paschal's fundamental right to engage in private, consensual, noncommercial acts of sexual intimacy with an adult. We hold that it does," the majority said.
In the dissent, Justice Robert Brown wrote that the decision "minimizes the role of a teacher." He also argued that the state has a general interest in the ensuring the welfare of children in school against teachers who abuse positions of trust and authority.
Neither the majority nor the dissent in Paschal makes any significant mention of the sentence that had been imposed on this defendant for having sex with his 18-year-old student. But, as suggested by the title of this post and the fact I stressed above, I suspect that the severe sentence given to David Paschal played a role — perhaps a large role — in convincing four Arkansas justices to strike down his convictions. I really wonder if this case comes down the same way had the defendant received, say, a prison term of only three years rather than a term of three decades.