May 5, 2012
"The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion"
The title of this post is the title of this very timely new piece by Professors Robert J. Smith and Justin D. Levinson, which is now available via SSRN. I call this piece "very timely" not only because of last month's landmark ruling concerning the North Carolina Racial Justice Act (basics here and here), but also because of all the significant recent empirical scholarship linking federal sentencing disparities principally to the exercise of prosecutorial discretion (examples discussed here and here). Here is the abstract of this important new piece:
The disproportionate incarceration of minorities is one of the American criminal justice system’s most established problems. In spite of a societal backdrop in which descriptive claims of a “post-racial” America prosper, the problematic racial dynamics of criminal justice persist. The numbers are stark and clear: one out of every twenty-nine black adult women and men are currently incarcerated compared with only one out of every 194 whites. But less clear are the causes of these disparities. For decades, scholars have struggled to understand why America prosecutes and incarcerates minorities at such massive rates. Perspectives on this troubling issue cover an incredibly wide range of themes, spanning from racist discussions of “biological differences” to thoughtful considerations of structural racism. A scientific revolution, however, has generated new interest with regard to how upstanding people — including judges, jurors, lawyers, and police — may discriminate without intending to do so. This implicit bias revolution has created new opportunities to empirically investigate how actors within the legal system can perpetuate discrimination in ways that have been — until now — almost impossible to detect.
The idea that prosecutors might be partially responsible for propagating inequality in the criminal justice system is far from new. Until now, however, it has been difficult to explain in detail why prosecutors — the vast majority of whom would never intend to hold double-standards based on race — might nonetheless be unwitting propagators of bias. From the arrest of a suspect to the sentencing of a defendant, consider the range of discretion-based decisions that prosecutors must make on a daily basis: Should an arrested citizen be charged with a crime? At what level should bail be recommended? Should bail be opposed? What crime or crimes will be charged? Should charges be dropped? Should a plea bargain be offered or negotiated? Which prosecuting attorney will prosecute which alleged crime? What will the trial strategy be? Will minority jurors be challenged for cause or with peremptory challenges? What sentence will be recommended?
This range of discretion offers a starting point from which to investigate how implicit bias might infect the prosecutorial process. In this Article, we examine implicit bias in the daily decisions of prosecutors, focusing on prosecutorial discretion points and specifically connecting each of them to implicit bias. We argue that implicit racial attitudes and stereotypes skew prosecutorial decisions in a range of racially biased ways. We then conclude by suggesting possible avenues for future research and considering potential remedies aimed at reducing the impact of implicit racial bias on prosecutorial decision-making.
A few recent related posts:
- "Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences"
- "Don't Blame Judges for Racial Disparity"
- A judicious perspective on recent federal racial sentencing disparity research
- "Racial Disparities, Judicial Discretion, and the United States Sentencing Guidelines"
- Vermont exploring racial disparties in its prison population
- "Race, Prediction & Discretion"
- A timely article urging prosecutors to be "color-conscious" rather than "color-blind"
- NC death row defendant prevails in first case decided under state's Racial Justice Act
- Should NC prosecutors stall appeal of first Racial Justice Act ruling and focus on a "better" test case?
- "Drug Policy as Race Policy: Best Seller Galvanizes the Debate"
- "Racial Critiques of Mass Incarceration: Beyond the New Jim Crow"
- NPR's Fresh Air celebrates MLK Day by discussing The New Jim Crow
Call for papers/panelists for Valparaiso University Law School drug sentencing conference
I am pleased to be able to fulfill a request to post a "Call for Papers" in conjunction with a timely conference at scheduled for Valparaiso University Law School on November 9, 2012, entitled "Exploding Prison Populations and Drug Offenders: Rethinking State Drug Sentencing." Here is the call:
Frequently, state sentencing approaches to drug offenses fail to distinguish between serious traffickers and low-level violators. For example, in Indiana, a person selling $40 worth of crack cocaine faces the same sentence (i.e., 20 to 50 years in prison) as a major drug dealer. Indiana’s framework presents an extreme example of this phenomenon, but Indiana is not alone in its approach; many other states are experiencing unintended consequences of similar policies. Long-term sentences for low-level drug offenders have contributed to the exponential growth in many states’ prison populations. Frequently, commentators question whether the expenses of this non-differentiating methodology are warranted in human and other costs. Among other topics, the conference will examine (1) whether the current system can be justified; (2) the deterrent effect on drug usage of long-term incarceration and widespread imprisonment; and, (3) whether the likelihood of apprehension and conviction affects the market for drugs. Submissions relating to drug sentencing are welcomed, especially submissions on the following subjects:
- The costs and benefits to taxpayers of incarcerating low-level drug offenders
- The impact of drug sentencing laws on minority groups and other affected communities
- Whether the science of addiction can inform decisions regarding optimal responses to drug use and sales
- Legislative approaches to the challenges of incarceration for drug offenses
Selected conference papers will be published in a special issue of the Valparaiso University Law Review. To submit a paper for presentation at the conference, please provide an abstract of you work by email submission no later than Monday, August 27, 2012. It should be addressed to Melissa Mundt, Associate Director of Academic Services, Valparaiso University Law at Melissa.Mundt AT valpo.edu.
Dharun Ravi, Rutgers student convicted in webcam spying, seeking probation sentence
This local article concerning an upcoming sentencing in high-profile New Jersey case reports that "lawyers for the Rutgers University student who spied on his gay roommate kissing a man have asked that he receive probation rather than a jail term." Here is more:
In a 33-page motion loaded with positive personal accounts of Dharun Ravi’s character and lack of bias, attorneys urged Judge Glenn Berman to depart from sentencing guidelines that require a jail term for a bias-intimidation conviction. They argued that the judge could apply a legal doctrine known as “the serious injustice standard” to impose a lighter sentence.
Ravi, 20, of Plainsboro, N.J., is scheduled to be sentenced May 21. He was convicted of bias intimidation, invasion of privacy, and several related charges in a trial that attracted international attention. The media attention, his lawyers argue, produced a distorted picture of Ravi as “the face of cyberbullying and homophobia” after his arrest in October 2010.
Ravi was accused of setting up his laptop computer and streaming webcam images of his dorm roommate, Tyler Clementi, as Clementi engaged in a sexual encounter with a man.... Clementi, 18, committed suicide by jumping off the George Washington Bridge on Sept. 22, 2010, days after learning of the spying incident. His death, while not part of the case against Ravi, became the focal point of the debate about gay-bashing and intimidation.
The motion asking for a lighter sentence includes dozens of comments from friends and family members of Ravi’s who maintain he is not homophobic and had no bias against Clementi. “Not one person ever perceived of Dharun Ravi as a hatemonger,” his lawyers wrote, noting that the jury found that Ravi had not acted to intimidate Clementi, but that Clementi had perceived Ravi’s actions as intimidating.
Ravi, who has been taking college courses online since withdrawing from Rutgers, has been the subject of “a number of threatening and negative voice mails and e-mails,” his lawyers wrote. The motion also included a plea from Ravi’s mother, Savitha, who told the court: “When it all started and the media was ripping him apart with misleading facts and the statements of people made about his moral values, he really broke into pieces."...
Lawyers argued that probation was an appropriate sentence given the nature of the case, pointing out, among other things, that bias-intimidation hate-crime legislation was written with the assumption that threats and acts of violence would be prosecuted under the law. There were no threats and there was no violence in this case, Ravi’s lawyer’s wrote. “Dharun Ravi lacked hatefulness,” they argued.
They also pointed out that if Ravi is sentenced to a jail term of more than year, he could later be deported. A native of India who came to the United States with his parents as a 3-year-old, Ravi has permanent-residence status. That can be revoked.
This AP story about the filing also includes these interesting legal details about Ravi's upcoming sentencing and arguments for probation:
Some prominent gay pundits, including former Gov. Jim McGreevey, also have said publicly that they do not think the Plainsboro resident should be sent to prison. Clementi’s parents issued a statement last year saying Ravi should not be punished “harshly.” Ravi exposed himself to the possibility of prison when he chose to go to trial rather than accept a plea offer in which prosecutors would have recommended no jail time.
A major issue for those who say Ravi should not go to prison is the nature of the four bias intimidation charges of which he was convicted. In considering those charges, jurors were asked to consider not only the defendant’s actions but also his state of mind — and the victim’s. Two of the bias intimidation charges are the only ones he faced that include the presumption of incarceration, which means the judge could sentence him to probation for them, but would have to offer an explanation for deviating from sentencing guidelines.
Recent related posts:
- "Ravi found guilty on 24 of 35 charges in webcam case"
- "Ravi media tour carries risks at sentencing, experts say"
May 4, 2012
How should we assess disparate sentences for very disparate crimes?
The question in the title of this post is prompted by this new Washington Post article, which is headlined "Washington area judges wrestle with how much time for wildly different crimes." Here is how the article starts:
Who is the worse person — the mother who drywalls her three little girls into a bedroom for several hours, or the politician who steals $350,000 from children? Who is more deserving of severe punishment — the trusted archivist who steals hundreds of the nation’s treasured historical objects and hawks them on eBay, or the developer who stuffs politicians’ pockets with more than $400,000 in bribes intended to win support for building projects?
In one 24-hour period in Washington area courtrooms, wildly different offenses in prominent cases produced extremely varied punishments, raising the question: What crimes deserve greater punishment than others, and how should that be determined?
Readers are encouraged to guess, before clicking through to find the answer from the article, which of these four DC-area scoundral will be serving the longest period in prison. These additional comments from the article provides more food for thought along the way:
Michele Roberts, a longtime defense lawyer in the District, [says] "sentencing is the most difficult part of a judge’s job: No matter what, someone will think each of today’s sentences is too harsh or too lenient.”
By popular consensus, violent crimes receive harsher punishment than white-collar offenses. “When you shoot, kill or rape someone, that’s very serious conduct and different from corruption,” Roberts says. “But there’s a class element involved in a lot of these distinctions. Murder is still murder; it doesn’t matter what your class is if you’re convicted of it. But the robber of a convenience store is likely to get a lot more time than someone who committed accounting fraud, even if it involved a million dollars.”...
Punishments for nonviolent crimes have increased dramatically in recent years, yet “the rationales used by judges in their decisions are all over the map,” says Erin Kelly, a philosophy professor at Tufts University who studies theories of justice and punishment.
“Most people would find the idea of stealing money with a weapon more threatening than embezzling money from a business,” Kelly says, “but if you think of the social damage caused by stealing huge amounts of money, you can see a real discrepancy in the punishments we assign.”...
Even King Solomon, whose judging, according to the Bible, caused God to call him the wisest of kings, had mainly to discern good from bad; he didn’t have to measure out his justice in months of prison.
"Delineating Sexual Dangerousness"
The title of this post is the title of this new article from Professor Fredrick Vars, which is now available via SSRN. Here is the abstract:
Only “dangerous” individuals may be indefinitely detained. Is a one percent chance of a future crime clear and convincing evidence of dangerousness? For sex offenders, fear and uncertainty in case law leave open this passage to limbo. This article closes it.
The due process balancing test used to evaluate standards of proof provides the framework. This article explains the relationship between the standard of proof and the definition of “dangerous” and argues that only an approach combining the two is consistent with the Constitution.
Applying decision theory with assumptions favoring the government, this article calculates a minimum likelihood of recidivism for commitment. Of the 20 jurisdictions with sex offender commitment, just one requires something close to that constitutional floor. Thousands have been detained applying unconstitutional standards, and the vast majority remains so.
"Pelosi blasts crackdown on medical marijuana"
The title of this post is the headline of this new piece in the San Francisco Chronicle, which begins and ends this way:
House Democratic leader Nancy Pelosi has joined critics of the Obama administration's campaign against medical marijuana suppliers in California, saying the government is endangering patients and undermining its own proclaimed policy of deferring to states on the issue.
"I have strong concerns about the recent actions by the federal government that threaten the safe access of medical marijuana to alleviate the suffering of patients in California," the San Francisco congresswoman said in a statement Wednesday.
It was Pelosi's first public criticism of the actions announced in October by U.S. Attorney Melinda Haag of San Francisco and federal prosecutors in the state's other three regions to crack down on marijuana dispensaries by going after their landlords.
The prosecutors accused pot suppliers of using California's 1996 medical marijuana law as a cover for making huge profits. They said they would notify dispensaries' landlords that they were violating federal drug laws and could lose their property or face criminal prosecution.
Since then, about 300 marijuana dispensaries in California have shut down because of fears of prosecution or eviction, including five in San Francisco, said Kris Hermes, spokesman for the advocacy group Americans for Safe Access. He said more than 1,000 medical marijuana suppliers are still operating.
Critics of the policy accuse President Obama of breaking a campaign pledge not to interfere with states' enforcement of their medical marijuana laws, and a 2009 Justice Department memo discouraging federal prosecutors from charging people who were complying with state laws....
Pelosi, in her statement, said the administration's actions were hurting seriously ill patients. "I have long supported efforts in Congress to advocate federal policies that recognize the scientific evidence and clinical research demonstrating the medical benefits of medicinal marijuana (and) that respects the wishes of the states in providing relief to ill individuals," she said.
Pelosi's full statement on this topic is available at this link.
May 3, 2012
Significant sentencing reform passes (nearly unanimously) in yet another red state
As reported in this local article, headlined "Missouri Legislature passes sentencing, parole guidelines," yet another so-called red state has now enacted a significant piece of sentencing reform legislation. Here are the basics:
During three decades as a St. Louis police officer and FBI agent, Gary Fuhr worked to lock up lawbreakers. As he puts it: "I spent my entire career trying to make sure all our correctional facilities operated at maximum capacity."
But after becoming a member of the state House last year, Fuhr participated in an eye-opening study of who is in state prisons and why. Now, the south St. Louis County Republican is the chief sponsor of a bill designed to keep some nonviolent offenders out of prison by beefing up community supervision alternatives. "It keeps our beds available for the folks who truly need to be locked up," Fuhr said.
The Legislature passed the bill on Wednesday and sent it to Gov. Jay Nixon, who is expected to sign it. The bill is projected to save the state an estimated $168,657 next year and potentially more in future years. The House passed the bill on a vote of 151-0. The Senate approved it 24-3.
While the bill is not as far-reaching as prison-closing measures passed in some states, its overwhelming, bipartisan approval stands out in a legislative session marked by gridlock and election-year politics. It garnered support from prosecutors as well as public defenders, staunch law-and-order legislators as well as social welfare advocates, domestic violence workers as well as civil libertarians....
At the heart of the plan is more intensive community supervision. For example, probation officers could mete out immediate, 48-hour jail stays when an offender violates a rule of supervision, such as failing a drug test. Backers say swift punishment would get the message across better than the current system, in which minor violations pile up, get mired in court backlogs and then result in an offender being shipped to the penitentiary.
The bill had its beginnings in a "State of the Judiciary" speech given in 2010 by Missouri Supreme Court Judge William Ray Price. He told legislators that incarcerating nonviolent offenders — without treating their underlying drug and alcohol problems — was costing billions and wasn't making a dent in crime.
Missouri spends more than $660 million a year to keep 31,130 people behind bars and 73,280 offenders on probation and parole. More than 11,000 employees, or one out of every five people on the state government payroll, work for the Department of Corrections.
Last year, Nixon, a Democrat, and the Legislature's top Republican leaders teamed with court officials to set up a working group to analyze prison data and make recommendations. Crunching the data was the Pew Center on the States and staff from its Public Safety Performance Project, which has done similar work in about 20 states. "The idea is, we can get more public safety at less cost," said Brian Elderbroom, a project manager at the Pew Center.
The most striking finding in Missouri's study: 71 percent of prison admissions resulted from probation or parole violations. And about 43 percent of the incoming prisoners had committed "technical" violations, such as failing to report a move or missing an appointment with a probation officer.
The bill aims to keep those offenders on track while they're on probation so they don't wind up in prison. The state would award points for following the rules, shortening an offender's supervision period by 30 days for every 30 days of compliance. "It motivates them to do the right thing," Fuhr said....
The new system would apply only to people convicted of certain drug offenses and lower-level C and D felonies, such as stealing, bad checks and forgeries. Prosecutors insisted that felonies such as aggravated stalking and sexual assault be excluded. "We're very happy with the bill as it is now," said McCulloch, president of the Missouri Association of Prosecuting Attorneys.
Some states, such as Kentucky, went too far, McCulloch said, by requiring that the state's prison population be reduced by several thousand people. "The easiest thing is to empty prisons," the prosecutor said. "You just start paroling people. But that hurts public safety. We wanted to make sure we stayed away from that."
Sharp comments about sentencing guidelines from district judge concerned about vets
I just came across this local article which, as a companion to a story about the struggles of returning combat veterans, provides some sharp quotes from a federal district judge who made headlines (as noted here and here) when sentencing such a vet. The local article is headlined "How Fair Are Federal Sentencing Guidelines? One Skeptical District Judge Weighs in," and here are excerpts:
John Brownfield Jr., a young combat vet who ... showed post-deployment symptoms of PTSD and got caught smuggling tobacco into the federal prison where he worked. But instead of sentencing Brownfield to a prison term, as was called for by federal sentencing guidelines, Senior U.S. District Judge John L. Kane gave him five years' probation and ordered that he undergo counseling and an alcohol treatment program. With that decision, not only did Kane buck the sentencing guidelines, he also ignored the deal (recommending a prison sentence of 366 days) that the prosecuting attorney and defense attorney brokered earlier that year.
Judge Kane's 30-page sentencing memo, which can be found here, went above and beyond the more drab, pedestrian court orders associated with sentencing hearings. Heavily researched, rich in context and chock-full of legal citations and footnotes, the memo received significant recognition after Kane filed it in December 2009....
In an interview with Daily RFT, Judge Kane opens up about why the Brownfield case was probably the most meaningful of his 35-year career, his qualms with the way the government treats veterans, and why he thinks some of the concepts behind federal sentencing guidelines are "bullshit."
"Too many judges follow the guidelines as they were written on Mount Sinai," says Kane, who was nominated to the federal bench by President Jimmy Carter in 1977. By ignoring the guidelines in the Brownfield case, says Kane, he simply was following the advice of the Supreme Court following its opinion in Gall v. United States, which he cited in his memo.
"Then and especially now, we're told not to deviate from those guidelines, but [in the Brownfield case] it didn't matter to me," says the judge. "I did what I thought was the right thing. You cannot reduce human conduct to a matrix. I think the guidelines help recognize what are normative sentences, but that doesn't mean all people can fit into the same slot ... there's something Orwellian about them."...
In the Brownfield case, says Kane, the sentencing guidelines failed to address two factors: the first was Brownfield's veteran status; the second was his PTSD-like condition. Brownfield, says Kane, wasn't getting much help from his own lawyers, which prompted the judge do his own research. When he called the local VA he discovered there was a six-month waiting list for patients, including those suffering from PTSD-like symptoms. Kane called the revelation "despicable."...
After going through probation and undergoing treatment, Brownfield is doing well, says Kane. His case, he adds, was probably the most important case he ever heard....
"They ought to get rid of the entire double grid," Kane says now, suggesting the guidelines should serve as one of many sentencing factors. "To say all cats are black is bullshit," he adds. "There are different shades of gray, and that's what these guidelines don't take into consideration."
Kane takes care to note that ignoring federal guidelines should not equate with being soft on crime. One of his nicknames, he says, is "Maximum John" because of his tough stances on certain offenders that cross his path.
Kane says he's received complimentary letters from members of the legal community following his memo. But he never heard back from the Sentencing Commission. Kane suspects the members didn't appreciate his message.
Some related posts on sentencing vets:
- Notable new resource from USSC concerning federal sentencing of veterans
- "Judge suggests more sentencing options for war veterans"
- Can downloading of child porn be blamed on post-traumatic stress disorder?
- "Judges Consider New Factor at Sentencing: Military Service"
- Prior military service as a sentencing mitigator gets a big boost from SCOTUS
- Should prior military service reduce a sentence?
- Kansas legislature considering bill for PTSD-based sentence reductions for veterans
Los Angeles DA also suing to get California to resume executions with one-drug protocol
As reported in this post from a few weeks ago, the brother of a California murder victim recently brought suit asking a state judge to order the state to move forward with the long-stalled execution of his sister's killer by adopting the one-drug lethal injection method currently used in some other state. Now, as reported in this recent Reuters piece, which is headlined "Prosecutors seek to resume California executions after 6-year ban," this strategy is being tried by a prominent California district attorney. Here are the basics:
Los Angeles prosecutors asked a judge on Wednesday to order the execution of two condemned killers using a single drug for lethal injections, a move intended to end a 6-year hold on the death penalty in California over the method used by the state.
The move comes days after Democratic Governor Jerry Brown told prison officials to consider using the single-drug execution protocol, and ahead of a November ballot measure that seeks to repeal capital punishment in the state.
A federal judge halted all California executions in 2006 after finding that the three-drug method that has been used for lethal injections in the state carried the risk of causing the inmate too much pain and suffering before death. California revised its protocol, but an appeals court has blocked a resumption of executions over the same objections.
Motions filed by Los Angeles District Attorney Steve Cooley's office in Los Angeles Superior Court on Wednesday asked that the warden of San Quentin State Prison put convicted murderers Mitchell Carleton Sims and Tiequon Aundray Cox to death by the single-drug protocol or show cause why the executions cannot proceed. Sims, 52, and Cox, 46, have both been on California's death row at San Quentin, near San Francisco, for more than a quarter century....
Sandi Gibbons, a spokeswoman for Cooley, said the district attorney had been working with prosecutors across the state for months on the strategy, and that it would soon be used against other convicted murderers in California.... Gibbons said both men had exhausted their appeals and that only the ruling against California's three-drug protocol was stopping the state from putting them to death....
Richard Dieter, executive director of the nonprofit Death Penalty Information Center in Washington, was skeptical that prosecutors could persuade a judge to approve executions by a protocol that had not been fully vetted by the courts. "The D.A. can file and request this but the larger question is whether California has a working protocol for carrying out executions, and I don't think it has," Dieter said. "It's not as simple as just changing to one drug." Dieter said the move could force courts to more quickly take up the issue of using the single-drug protocol in California.
Some recent related posts:
- "Murder victim’s family sues to enforce California death penalty"
- State judge oreders Kentucky to consider one-drug protocol for lethal injections
- Defense lawyer in Arizona troubled by shaking of condemned during one-drug execution
- Ohio completes "the most documented execution in the United States"
"Debunking Claims of Over-Federalization of Criminal Law"
The title of this post is the title of this notable new piece now up on SSRN by Professor Susan Klein and Ingrid Grobey. Here is the abstract:
Virtually all criminal law scholars, and many jurists, Republican legislators, and special interest groups bemoan the over-federalization of criminal law, which they perceive as the inevitable result of too many federal laws being enacted and enforced at the whims of Congress and federal prosecutors. This uncontrolled growth, they argue, disrupts the delicate balance between state and federal law enforcement systems by draining resources and attention away from local law enforcement.
We believe that such claims are largely unfounded or misdirected. While it is true that there are more federal criminal laws in existence than ever before, empirical evidence indicates that the size of the federal criminal code has little (if anything) to do with the annual number of federal prosecutions. In fact, as we demonstrate in Part I, while federal criminal caseloads have grown in recent decades almost all of the growth can be attributed to tougher federal drug and immigration enforcement policies, and not to a creeping federal encroachment upon areas traditional state concern. A review of federal criminal caseload data from 1940 onward reveals that rates of prosecution for most offense types remained stable, indicating there’s been no seismic change in the balance between federal and state law enforcement systems. In fact, most indicators suggest that federal resources continue to be expended primarily to vindicate and protect federal interests, while states remain the first line of defense against violent crimes, sex crimes, property crimes, and the like.
In Part II, we explore and analyze scholars’ condemnation of federal criminal law enforcement as arbitrary or disruptive of states’ ability to craft local solutions to local problems. We respond directly to concerns over sentencing disparities between the state and federal systems, and the perception that some defendants are arbitrarily selected for prosecution. We argue that, in the vast majority of cases, federal prosecutors make reasoned, sensible decisions when selecting cases for federal prosecution. Even assuming arguendo that selection for federal prosecution was random, we find no support in case law for the proposition that random selection would be unjust or violate constitutional principles. The very nature of Our Federalism not only permits but encourages state and federal entities to identify and protect their (frequently overlapping) interests as they see fit.
Finally, in Part III, we respond to the criticism that the over-federalization of criminal law has created an explosion of regulatory offenses without culpability, and a series of overbroad and vague federal criminal prohibitions. There are few if any unwitting individuals wrongly imprisoned because of unfair prosecutions. Instead, Congressional drafting deficiencies have been resolved by our long history of Supreme Court intervention in cases where federal statutes might otherwise raise due process concerns. The Court has successfully imposed extra-textual mens rea requirements to public welfare offenses, and similarly narrowed the interpretation of mail fraud, obstruction, and RICO.
A few recent related posts:
- Justice Scalia bemoans "nickel and dime" criminal cases in federal courts
- Does everyone agree that feds ought not bother prosecuting "ordinary drug crimes"?
- Justice Scalia complains to Senate about too many federal drug prosecutions
- Notable new data on federal criminal caseload in FY11
Notable new study reporting increased marijuana use by teens
A helpful reader alerted me to an important new survey released yesterday by The Partnership at Drugfree.org concerning an increase in teenager use of marijuana. This AP story provides some of the basics:
More teens are smoking dope, with nearly 1 in 10 lighting up at least 20 or more times a month, according to a new survey of young people. The report by The Partnership at Drugfree.org, being released Wednesday, also said abuse of prescription medicine may be easing a bit among young people in grades 9 through 12, but still remains high.
Partnership President Steve Pasierb says the mindset among parents is that it’s just a little weed or a few pills — no biggie. “Parents are talking about cocaine and heroin, things that scare them,” said Pasierb. “Parents are not talking about prescription drugs and marijuana. They can’t wink and nod. They need to be stressing the message that this behavior is unhealthy.”
Use of harder drugs — cocaine and methamphetamine — has stabilized in recent years, the group’s survey showed. But past-month usage of marijuana grew from 19 percent in 2008 to 27 percent last year. Also alarming, says Pasierb, is the percentage of teens smoking pot 20 or more times a month. That rate went from 5 percent in 2008 to 9 percent last year, or about 1.5 million teens toking up that frequently....
The findings on marijuana track closely with those in a recent University of Michigan study sponsored by the National Institute on Drug Abuse, part of the National Institutes of Health. That study also found marijuana use rising among teens the past few years, reversing a long decline in the previous decade.
The partnership study suggests a link between teens who smoke pot more regularly and the use of other drugs. Teens who smoked 20 times or more a month were almost twice as likely as kids who smoked pot less frequently to use ecstasy, cocaine or crack.
Other findings [include the fact that] one in 10 teens reports using prescription pain medication — Vicodin or OxyContin — in the past year. That’s down from a peak of 15 percent in 2009 and 14 percent in 2010....
The Marijuana Policy Project, which advocates legalization, says making pot legal for adults might help cut teen usage. “We definitely don’t think that minors should be using marijuana any more than they should be drinking or using tobacco, but arresting people for doing that never stops minors,” said Morgan Fox, a spokesman for the group. “If we remove marijuana from the criminal market and have the market run by responsible business people that have an incentive to check IDs and not sell to minors, then we might see those rates drop again.”
The Partnership’s study was sponsored by the MetLife Foundation. Researchers surveyed 3,322 teens in grades 9-12 with anonymous questionnaires that the youngsters filled out at school from March to June 2011.... Based in New York, The Partnership at Drugfree.org is formerly The Partnership for a Drug-Free America — perhaps best known for the “this is your brain on drugs” ads of the 1980s and 1990s. The nonprofit group launched its new name in 2010 to position itself as more of a resource to parents and to avoid the misperception the partnership is a government organization.
The full study released on Wednesday is available at this link.
As I have said before in response to similar data, it seems there might be something of a zero-sum quality to which substantances teens will illegally use and that pot is now becoming more popular while other substances are declining in popularity. What these kinds of trends may mean for long-term harms to individuals and society is, in my view, an open and important question in the broader debate concerning the war on drugs and especially state efforts to legalize marijuana.
Some recent related posts:
- Vice or virtue?: teen pot use up, while teen drinking and tobacco smoking falls
- Two notable new pieces on pot policy debates coming to mainstream politics
- "Medical Marijuana in Colorado and the Future of Marijuana Regulation in the United States"
May 2, 2012
DOJ conducts "nationwide takedown" of 100+ persons involved in Medicare fraud
I just received a whole bunch of e-mails from the US Justice Department concerning what it is calling a "nationwide takedown" of lots and lots of persons involved in Medicare fraud. This primary (and very lengthy) official press release provides the basics:
Attorney General Eric Holder and Health and Human Services (HHS) Secretary Kathleen Sebelius announced today that a nationwide takedown by Medicare Fraud Strike Force operations in seven cities has resulted in charges against 107 individuals, including doctors, nurses and other licensed medical professionals, for their alleged participation in Medicare fraud schemes involving approximately $452 million in false billing....
This coordinated takedown involved the highest amount of false Medicare billings in a single takedown in strike force history.
HHS also suspended or took other administrative action against 52 providers following a data-driven analysis and credible allegations of fraud. The new health care law, the Affordable Care Act, significantly increased HHS’s ability to suspend payments until an investigation is complete.
The joint Department of Justice and HHS Medicare Fraud Strike Force is a multi-agency team of federal, state and local investigators designed to combat Medicare fraud through the use of Medicare data analysis techniques. More than 500 law enforcement agents from the FBI, HHS-Office of Inspector General (HHS-OIG), multiple Medicaid Fraud Control Units, and other state and local law enforcement agencies participated in the takedown. In addition to making arrests, agents also executed 20 search warrants in connection with ongoing strike force investigations....
The defendants charged are accused of various health care fraud-related crimes, including conspiracy to commit health care fraud, health care fraud, violations of the anti-kickback statutes and money laundering. The charges are based on a variety of alleged fraud schemes involving various medical treatments and services such as home health care, mental health services, psychotherapy, physical and occupational therapy, durable medical equipment (DME) and ambulance services.
According to court documents, the defendants allegedly participated in schemes to submit claims to Medicare for treatments that were medically unnecessary and oftentimes never provided. In many cases, court documents allege that patient recruiters, Medicare beneficiaries and other co-conspirators were paid cash kickbacks in return for supplying beneficiary information to providers, so that the providers could submit fraudulent billing to Medicare for services that were medically unnecessary or never provided. Collectively, the doctors, nurses, licensed medical professionals, health care company owners and others charged are accused of conspiring to submit a total of approximately $452 million in fraudulent billing....
In Miami, a total of 59 defendants, including three nurses and two therapists, were charged today and yesterday for their participation in various fraud schemes involving a total of $137 million in false billings for home health care, mental health services, occupational and physical therapy, DME and HIV infusion....
Seven individuals were charged today in Baton Rouge, La., for participating in a fraud scheme involving $225 million in false claims for CMHC services....
In Houston, nine individuals, including one doctor and one nurse, were charged today with fraud schemes involving a total of $16.4 million in false billings for home health care and ambulance services....
Eight defendants, including two doctors, were charged in Los Angeles for their roles in schemes to defraud Medicare of approximately $14 million. In one case, two individuals allegedly billed Medicare for more than $8 million in fraudulent billing for DME.
In Detroit, 22 defendants, including four licensed social workers, were charged for their roles in fraud schemes involving approximately $58 million in false claims for medically unnecessary services, including home health, psychotherapy and infusion therapy.
In Tampa, Fla., a pharmacist was charged with illegal diversion of controlled substances. One defendant was charged last week in Chicago for his alleged role in a scheme to submit approximately $1 million in false billing to Medicare for psychotherapy services.
Georgia joins ever-growing red states enacting sweeping sentencing reforms
As reported in this Atlanta Journal-Constitution article, headlined "Governor to sign sweeping justice reform bill," the "way Georgia punishes thousands of nonviolent offenders will forever change when Gov. Nathan Deal signs landmark legislation Wednesday." Here is more:
Deal told The Atlanta Journal-Constitution he will also sign an executive order continuing the work of a special council that studied the state's prison system and recommended sweeping changes to control unimpeded growth in prison spending. The reforms in House Bill 1176, to be signed at a ceremony at the Capitol, are projected to save taxpayers $264 million over the next five years....
Years ago, Georgia was among the states leading the nation in tough-on-crime sentencing laws. But Georgia now joins a host of other states -- including Texas, Mississippi, North Carolina and South Carolina -- that have enacted legislation to address soaring prison spending that was doing little to reform offenders. The legislation enjoyed extraordinary bipartisan support, with the final version being approved unanimously by both the House and Senate.
The sentencing reform package, which takes effect July 1, is part of a broader criminal justice initiative pushed by Deal. The Legislature also approved the governor's recommendation to quintuple funding to $10 million for "accountability courts" that require defendants to work, seek treatment and stay sober.
"As we reserve more of our expensive [prison] bed space for truly dangerous criminals [we] free up revenue to deal with those who are not necessarily dangerous but are in many ways in trouble because of various addictions," Deal said. "Our system is feeding on itself with our recidivism rate being as high as it is. We have the opportunity now to make a difference in the lives of future generations of Georgians."
Deal said he will ask the Special Council on Criminal Justice Reform for Georgians, comprised of lawmakers, lawyers, judges and other officials, to continue its work and focus on getting inmates ready to be contributing members of society before they leave prison.... The special council is also expected to be called on to address two initiatives the Legislature did not take up this year -- decriminalizing many of the state's traffic offenses and allowing "safety valves" for some mandatory minimum sentences.
Georgia criminalizes minor traffic offenses -- more than 2 million a year -- while most other states treat them as violations with a fine as the penalty, the council said in a November report.... The special council also suggested judges should be allowed to depart from minimum mandatory prison sentences, such as those for drug trafficking. A number of states, including Connecticut, Florida and Maine, have "safety valves" for various drug and habitual violator offenses.
"In Georgia, it's an issue that's not going to go away," said State Bar of Georgia President Ken Shigley, a member of the special council. "To have a one-size-fits-all sentence for crimes that can be so different in terms of the offense and the offender doesn't always serve the best interests of justice."
Kelly McCutchen, president of the Georgia Public Policy Foundation, the think tank that strongly supported H.B. 1176, predicted the process will take years. Safety valves, he said, could help inmates with their transitions back into society. "As a private citizen, I would feel a whole lot better if maybe we cut a few months off their sentence, put them in a half-way house, provide them some supervision, some training and if they're not ready yet, pull them back into prison."
State Rep. Rich Golick, R-Smyrna, who sponsored the sentencing reform bill, said the law reflects a new "smart on crime" approach in Georgia. "More non-violent offenders will be directed toward drug courts and rehabilitation where that is possible, and that will reserve more prison beds for violent offenders who need to be kept away," he said. "Public safety is enhanced and taxpayer money is saved."
House Bill 1176, to be signed into law today, would:
- Create new categories of punishment for drug possession crimes, with less severe penalties for those found with small amounts.
- Increase the felony threshold for shoplifting from $300 to $500 and for most other theft crimes to $1,500.
- Create three categories for burglaries, with more severe punishment for break-ins of dwellings by burglars who are armed and cause physical harm to a resident, with the least severe penalties for those who break into unoccupied structures or buildings.
- Create degrees of forgery offenses, with graduated punishment for the type of offense and amount of money involved.
A (Swiftian?) proposal for reforming the prosecutorial function
James Doyle, a Boston attorney and a 2012 Visiting Fellow at the National Institute of Justice, has this interesting new commentary at The Crime Report under the headlined "Why (and How) We Need to Improve America’s Prosecution System." Here is how it gets started:
Here’s a modest proposal in the spirit of Jonathan Swift from someone who has spent a career at the criminal defense bar: let’s divide American prosecutors into two separate and independent offices.
One will be an office of solicitors, who handle the misdemeanors, prepare the serious cases and determine how many years of incarceration the taxpayers will fund to punish, incapacitate, and rehabilitate each offender.
If they can dispose of a case for the price they’ve set, they will dispose of the case. If they can’t, they will pass it on to the second office, an office of barristers, who try the felony cases in court when they have to be tried.
If we do this, we will improve prosecution performance and prosecution accountability. We will also improve the lives of individual prosecutors.
May 1, 2012
Indiana legislators (over?)reacting to pair of sex offenders earning early prison release
This new AP story, headlined "Early prison release for sex offenders irks lawmakers," provides a telling and notable how sex offenders can get into trouble and prompt a harsh legislative response for, in essence, just being good prisoners. Here are the details:
Indiana lawmakers are planning changes to the state’s early release law in response to this week’s slated release of two convicted sex offenders who significantly shortened their prison terms by earning college degrees.
Republican Sen. Jim Merritt of Indianapolis said Tuesday the law’s shortcoming is illustrated by the case of Christopher Wheat, a former high school swim coach convicted of having a sexual relationship with a 14-year-old female swim student.
Wheat, 38, is scheduled for release Thursday from the New Castle Correctional Facility after serving less than two years of his eight-year sentence. Merritt said Wheat “manipulated the system” to cut his sentence to about 20 months by earning two computer science degrees behind bars. “I think he gamed the system. And we need to make sure nobody does that anymore,” Merritt said. “We all believe education in prison should be for the rehabilitation of one’s character and preparing them for their life as an ex-offender.”...
Wheat was sentenced to eight years in September 2010 following his conviction on two counts of sexual misconduct with a minor and one count of child solicitation. His victim was a then-14-year-old student he coached at Lawrence North High School in Indianapolis.
Doug Garrison, a spokesman for the Indiana Department of Correction, said Wheat was sentenced to 15 years in prison, with five years suspended and another two years in community corrections, leaving him with an eight-year sentence. It was cut to four years for good behavior and another two years and three months were removed when he earned an associate degree and a bachelor’s degree. Garrison said Wheat must wear a GPS-monitored ankle bracelet following his release from prison.
Merritt said he’s working with Sen. Randy Head, R-Logansport, to draft legislation for the next General Assembly that would likely include making convicted sex offenders unable to shave time off their sentences by earning degrees in prison. It might also seek to prevent inmates from using previously accumulated college credits toward their degrees, as Wheat had done....
Merritt said the slated release of another convicted sex offender -- also Thursday from the New Castle prison -- demonstrates that changes are needed to the state’s early release law. Daniel J. Moore, a 53-year-old former New Whiteland Baptist Church pastor, pleaded guilty in March 2010 to child solicitation and sexual misconduct with a minor for a sexual relationship with a 15-year-old girl who was a church member. His 10-year sentence was cut to five for good behavior, and he earned associate and bachelor’s degrees in human services, further paring his sentence to about two and a half years.
State Sen. Pat Miller, R-Indianapolis, said she also will push for changes to the early release law “to fix this terrible situation.” “Sexual predators are a menace to our society. The pain they inflict upon their victims lasts a lifetime, and it makes no sense that these violent offenders are being released early from prison,” Miller said in a statement.
May 1, 2012 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack
"Illinois panel of lawmakers: Don't close prisons, mental facilities"
The title of this post is the headline of this new AP article which highlights some of the challenges, even in lean budget times, of making dramatic cuts to the big government prison-industrial complex supported by taxpayer dollars. Here are excerpts:
A panel of Illinois lawmakers recommended against closing two prisons and a developmental center Tuesday, a vivid illustration of how difficult it will be for officials to slash state spending this year.
Closing the facilities would save the state tens of millions of dollars at a time when the governor and legislative leaders want to cut billions. But the closures also would eliminate hundreds of jobs, deliver painful blows to downstate communities... Legislators were unwilling to endorse that trade-off.
The Commission on Government Forecasting and Accountability voted 7-3 against closing the Tamms "supermax" prison and a women's prison in Dwight, as Gov. Pat Quinn has proposed.... The commission also gave a thumbs-down to closing two Department of Corrections halfway houses and a juvenile prison.
The votes were only advisory. The Democratic governor is still free to close the institutions if he wants.
Rep. Patricia Bellock, a top budget negotiator for House Republicans, rejected all the proposed closures. The amount of money involved may be small, she said, but the impact would be huge. "I don't feel it's minor when you're dealing with people's lives," said Bellock, co-chair of the commission.
Some Democrats on the commission supported closing the major facilities. Republicans generally opposed them.
The Tamms prison is a relatively new facility that houses the state's most dangerous and disruptive prisoners. Human rights advocates criticize it for holding prisoners in solitary confinement, keeping them in their cells 23 hours a day. Quinn says moving those inmates to other prisons and shutting Tamms would save about $26 million a year.
Closing the Dwight prison and moving inmates to a penitentiary in Lincoln would save about $37 million. Shutting the halfway houses and youth camps that the commission rejected Tuesday would cut spending by roughly $27 billion.
Comments on Breivik commentary saying "Sometimes the death penalty is warranted"
I am intrigued to see this interesting new commentary in the Washington Post authored by the always interesting Charles Lane under the headline "Sometimes the death penalty is warranted." Here are excerpts:
If anyone personifies evil, it is Anders Breivik. The 33-year-old Norwegian violently disrupted his country’s usual peace on July 22, 2011, by gunning down 69 mostly young people at a summer camp. A bomb he planted in Oslo killed eight others. He did it all to defend Norway against multiculturalism, he later raved.
Yet, on one point, Breivik is not talking crazy. At his trial, which began April 16, he pronounced the maximum penalty for his actions — 21 years in prison, or longer if the government meets certain conditions — “pathetic.” He “would have respected” the death penalty, Breivik said. Of course, he won’t get it; Norway abolished capital punishment long ago.
Norway has suffered deeply because of Breivik, and I don’t mean to add insult to injury. But this situation illustrates what’s wrong with banning the death penalty in all cases. If executing an innocent man is the worst-case scenario for proponents of the death penalty, then threatening Breivik with prison is the reductio ad absurdum of death-penalty abolitionism.
Anti-death-penalty sentiment is hardly limited to Europe. Last week Connecticut Gov. Dan Malloy signed a bill abolishing capital punishment, which means that no future Anders Breivik need fear execution in that state. Sixteen other states have no death penalty; California voters will get a chance to join them in a November referendum.
In the United States, abolitionist arguments are gaining traction, especially claims about the high cost of lengthy death-penalty litigation and the risk of executing people by mistake. Malloy also cited a “moral component” to his decision. Such practical and moral concerns are at their most understandable in run-of-the-mill convenience-store murder cases, where the risk of error seems relatively high compared with the benefits of punishing murder with death.
But Breivik’s was no ordinary crime. It presents the special case of a cold-blooded massacre of children by a political terrorist whose guilt is unquestionable and who remains utterly unrepentant; indeed, he told the court that he would kill again if given the opportunity.
What is morally worse: putting the author of this bloodbath to death or letting him live, with the accompanying risk — however small — that he might broadcast his message to receptive audiences from jail, or escape, or one day litigate his way to freedom?...
The stubborn fact is that death-penalty abolitionism runs counter to one of humanity’s oldest and most persistent moral intuitions: that there should be condign retribution for the most monstrous transgressions.
Even in Norway, Breivik’s rampage caused some second thoughts. Immediately after his crimes last summer, a man named Thomas Indrebo observed online that “the death penalty is the only just sentence in this case!!!!!!” Indrebo was later assigned as a lay judge in Breivik’s trial and had to be dismissed because of his comment. That was the right call, legally. But I wonder if the Breivik case will cause more people in Europe to ask whether there really is no place in civilization for capital punishment.
Both abroad and at home, we need less polarized debate, less moralizing — and more honest legislative efforts to reconcile valid concerns about the death penalty with the public’s clear and consistent belief that it should remain available for the “worst of the worst” offenders.
For a host of reasons, I praise Lane for connecting Breivik's crimes and Norweigian punishment to America's constant capital conundrums. But there is a lack of important nuance in this commentary, especially when Lane asserts that political terrorists need not fear execution in Connecticut.
As recent developments in Rhode Island have shown (basics here and here), federal prosecutors are often eager to pursue federalcapital charges for murders committed in states without the death penalty. I would be advise any "future Anders Breivik" that the federal criminal justice system can and likely will use its authority to seek the death penalty for any political mass murderer. I could point any "future Anders Breivik" to the past and present federal capital prosecutions of recent US political terrorist in the form of Jared Loughner and Ted Kaczynski and Timothy McVeigh and Terry Nichols and Eric Rudolf.
I stress this point in part because I think a truly "less polarized debate" about the death penalty would make its way toward my long-stated view (see posts here and here from 5+ years ago) that that states should rarely bother to pursue capital cases and instead should regularly request that federal authorities assume primary responsibility for pursuing the death penalty in the most horrific murder cases. Moreover, as highlighted by the reality of the federal capital case outcomes of recent US versions of Breivik, a "less polarized debate" about the death penalty's true value and import would give much more attention to its role in helping ensure the obviously guilty murderers accept a plea deal to take the death penalty off the table. (That's how political terrorists Kaczynski and Rudolf escaped any possible execution, and I would wager that Loughner's cases ultimately cashes out this way, too.)
Regular readers know that I am a death penalty agnostic, largely because my own consequentialist moral philosophy makes my opinion on any form of punishment highly contingent on the circumstances of the crime and the administration of the punishment. Particularly at this very contingent moment in American crime and punishment practices, I view any extreme absolutist positions, either for or against the death penalty, as appealing mostly to those who care more about feeling righteous than being wise.
Recent and older related posts:
- The federalization of the death penalty
- More support for an exclusively federal death penalty
- Context-free ruminations on the federal death penalty
- Debating the death penalty as bargaining chip
- Research on capital punishment's impact on plea deals
- Another example of the death penalty as an effective plea bargaining tool
- Great new (though still dated) examination of the death penalty and plea bargaining
- A poster child for the (federal) death penalty?
- The federal law gap in the NJ death penalty report
- The federal death penalty in America's paradise
- The federal death penalty in NY and elsewhere
- Ashcroft's death penalty "legacy"
- Wondering about the state and fate of the federal death penalty
- "Cruel and Unusual Federal Punishments"
- Split Sixth Circuit reverses federal death sentence on interesting grounds
- "The Racial Geography of the Federal Death Penalty"
- Federal prosecutor in Western NY (wisely?) recommending lots of capital prosecutions
- Making the case for the use of the federal death penalty
Two notable new pieces on pot policy debates coming to mainstream politics
Two publications known for political and social commentary have these two new pieces on the modern politics of pot policy:
From The Atlantic here, "Gary Johnson and the End of Marijuana As a Fringe Issue
From The Huffington Post here, "The Marijuana Vote"
Both of these pieces merit a full read, and here is a notable excerpt from the latter one:
The "marijuana vote" is something that is virtually impossible to demographically study. It cuts across all the standard groupings of age, sex, occupation, living situation, ethnicity, race, religion, and economic status. It can't be studied, because its members are perpetually underground: What they do is illegal, after all, and who is going to admit to a random pollster on the telephone: "Sure, I smoke pot... I smoke a bunch of pot!" The marijuana vote does not advertise itself on bumper stickers ("I smoke pot, and I VOTE!") or with any organized political movement. When people can lose their jobs (or worse) by admitting they're part of a demographic, then compiling stats on the group becomes impossible. They are invisible, and their aim (under our current laws) is to stay that way.
In public life, admitting to smoking marijuana used to be an automatic disqualification for a candidate for just about any office. Now, it is not. Politicians are given a free pass on the issue; "When I was young and irresponsible... in college... I smoked some pot" does not disqualify anyone anymore from any office. What I keep waiting for some intrepid reporter to ask one of these public figures is: "Do you think you would be where you are today if you had gotten busted for your marijuana use back then?" It's all about not getting caught, in other words. If you smoked pot in a frat house and never got busted, that is one thing. If you did get nabbed, well, sorry, but nobody's going to vote for you. How twisted is the logic behind that? Politicians who skated by when they were young now approve a crackdown on the very same things they used to do (but escaped punishment for). The stench of hypocrisy is impossible to avoid.
Yale Law Journal sponsoring prisoner writing contest
A helpful reader altered me to the interesting news that the Yale Law Journal is now, as detailed on this webpage, welcoming submissions for its first Prison Law Writing Contest. Here are some of the details:
If you are or recently have been in jail or prison, we invite you to write a short essay about your experiences with the law. The three top submissions will win cash prizes, and we hope to publish the best work....
The Contest offers people in prison the chance to share their stories with people who shape the law and to explain how the law affects their lives. Where permitted by state law, the authors of the winning essays will receive prizes: $250 for first place, $100 for second place, and $50 for third place.
Here are just some of the interesting topics concerning which the Yale Law Journal seeks submissions:
- What does fair treatment look like in prison?
- Tell us about a notable or surprising experience you’ve had with another person in the legal system — whether a judge, a lawyer, a guard, or anyone else. What did you learn from it?
- The goals of criminal punishment include retribution (giving people what they deserve), deterrence (discouraging future crimes), and rehabilitation (improving behavior). What purpose, if any, has your time in prison served? Should one of these purposes be emphasized more?...
- If you have been released from prison, what challenges did you face in reentering society?...
- How, if at all, do you maintain relationships with your family while in prison? Describe the prison rules that govern how much contact you can have with your family. How has being in prison affected your family relationships?
Here are the basic rules: "You may submit an essay if you have been an inmate in a prison or jail at any point from January 1, 2010 through September 30, 2012. We welcome essays of about 1000-5000 words, or roughly 4-20 pages."
Kudos to the students at Yale for running this interesting writing contest. I hope they will consider reporting on the number of submissions they receive and consider making many of them widely available for public consumption (at least on-line).
Making a pitch for exempting the severely mentally ill from capital punishment
The website Jurist has this new commentary by Olga Vlasova headlined "Towards Exempting the Severely Mentally Ill from the Death Penalty." Here is how it begins and ends:
According to Mental Health America, about 10 percent of all death row inmates suffer from a serious mental illness. Although a severely mentally ill inmate on death row may have his execution delayed due to incompetency, once the individual has regained competence, he can be executed. The Supreme Court has never ruled that the US Constitution prohibits sentencing the mentally ill to death. However, both the Eighth Amendment and the Fourteenth Amendment provide grounds to challenge the use of capital punishment on severely mentally ill offenders....
According to the Supreme Court, the Constitution does not prohibit sentencing the severely mentally ill to death, and Fourteenth Amendment arguments relying on equal protection and due process have not yet convinced the Court to create an exemption for this group. However, in Atkins and Roper, the Supreme Court has recognized that the interpretation of the Eighth Amendment's ban on cruel and unusual punishment must comport with our society's evolving standards of decency. The emerging trends in state legislatures, as well as recommendations of the American Bar Association and other prominent organizations, could open the door for an eventual Supreme Court ruling that finds the Eighth and Fourteenth Amendments to prohibit imposing the death penalty on those suffering from severe mental illness.
April 30, 2012
Remarkable new trial order in remarkable federal prosecution over house cleaner
A helpful reader altered me to a remarkable 50-page order issued last week by Judge Douglas Woodlock in US v. Henderson, No. 09-10028 (D. Mass. Apr. 25, 2012) (available here). The underlying case seems drawn from a Kafka novel, though Judge Woodlock references other authors (ranging from Emerson to Macaulay to Shakespeare to Thucydides) in the course of ordering a new trial. The full opinion merits a full read, and here is how it gets started:
In this criminal case the heedless, hapless, and negligent hypocrisy of the defendant confronts the stern, solemn, and implacable sanctimony of the government over a matter of household employment: the periodic engagement of a cleaning lady.
Now before me is the question whether a jury verdict supporting a felony conviction should stand in a case where an unmarried professional woman -- with supervisory responsibility for the government in enforcing immigration laws -- employed a person she came to learn was an illegal alien to clean her home from time to time and, when asked, advised the cleaning lady generally about immigration law practices and consequences. The question is framed by the defendant’s renewed motion for a judgment of acquittal and, in the alternative, by her motion for a new trial.
The cleaning lady’s employment was not itself illegal under regulations promulgated by the Attorney General of the United States. And the empathetic advice that the defendant gave her cleaning lady about immigration law practices -- induced from the defendant as part of the script contrived for an elaborate undercover investigation involving surreptitious electronic recordings into her relationship with the cleaning lady -- did not advise the cleaning lady to engage in fraud or commit some other crime.
Yet Customs and Border Protection administrative rules prohibit CBP personnel like the defendant from employing an illegal alien, sanctioning such conduct on a spectrum from a fourteen day suspension to removal. And, more menacingly, a federal criminal statute carrying a five year maximum incarcerative sentence makes it a felony to “encourage or induce” an illegal alien “to reside” in this country.
The defendant's employment of an illegal alien as an intermittent cleaning lady in her home coupled with the immigration advice she gave her was considered sufficient by an earlier administration of the United States Attorney’s Office to mount this felony prosecution. The Office determined to exercise its considerable discretion, despite the fact that the parallel misdemeanor provision treats even more significant conduct as de minimis and consequently not meriting criminal sanction, to initiate this unusual prosecution under a felony statute designed to address conduct so serious that it provides a predicate for application of the blunderbuss Racketeering Influenced and Corrupt Organizations (“RICO”) statute...
I view the pursuit of this case to have been overkill through the improvident invocation of federal criminal felony process when alternative administrative sanctions more closely tailored to the significance of the misconduct are available and adequate. And I am puzzled by the dogged consistency which causes this prosecution to continue. However, my responsibilities at this point are limited to determining whether the federal criminal law can permit such a prosecution and, if so, how a fair trial of such a prosecution may be managed.
After careful and extended review of the serious felony criminal statute the government invokes, I must conclude -- under principles of statutory construction applicable to criminal provisions -- that the government has the power to pursue such a prosecution. However, I also must conclude -- in light of case law developing in the federal appellate courts while I have had this matter under advisement -- that my instructions to the jury as to the elements of the crime were inadequate, and that a new trial is warranted in which appropriate jury instructions fashioned in response to recent developments in the case law will be delivered.
I suppose we all should be pleased to learn that federal criminal offending is so rare in Massachusetts that the federal prosecutors have ample time to go after folks for mistakes they make in hiring someone to clean their townhouse every few weeks. But given my sense that federal tax dollars could and should be put to more pressing matters, I cannot take much pleasure in learning just what some folks in Boston decided should be made a federal felony case.
"High court should hear Rubashkin to consider overzealous DOJ and judge who was essentially on prosecution team"
The title of this post is drawn from the subheading of this new commentary in the National Law Journal by Alan Dershowitz and Ronald Rotunda, which carries a main headline of "Prosecutorial and judicial misconduct." Regular readers are likely familiar with the Rubashkin case because I have blogged a lot about its sentencing elements. (As reported here, with the help of the Washington Legal Foundation (WLF), last year I filed an amicus brief on sentencing issues when this case was before the Eighth Circuit; as I will discuss in some future posts, I have lately been working up an amicus brief urge SCOTUS to take up the case to resolve splits over reasonableness review in the circuits.)
Here are excerpts from the Dershowitz and Rotunda commentary:
Lawyers for Sholom Rubashkin — Paul Clement and Nathan Lewin — filed last month a petition for writ of certiorari with the U.S. Supreme Court. Rubashkin is seeking relief from the Supreme Court because the U.S. Court of Appeals for the Eighth Circuit refused to consider evidence that Rubashkin first discovered after the trial that made the trial fundamentally unfair.
Indeed, during the past few years, a series of federal judges have criticized the U.S. Department of Justice for prosecutorial misconduct. Judge Emmet Sullivan of D.C. district court, who ordered a criminal investigation into the actions of prosecutors in the trial of former Alaska Senator Ted Stevens, suggested that the case reflected deeper problems at the Justice Department. Chief Judge Mark Wolf of the District of Massachusetts found that he regularly presided over cases where federal prosecutors withheld important evidence, about every other year for the past two decades.
It's happened again, but this time the judge herself is part of the problem rather than part of the solution. When Agriprocessors, an Iowa kosher processing plant, learned that the Immigration and Customs Enforcement Agency (ICE) was concerned about its hiring practices and planned a raid, it hired a law firm to contact ICE and offered to cooperate with the authorities in terminating undocumented workers. ICE did not reply. Instead, on May 12, 2008, it launched a highly publicized raid, with about 600 agents in riot gear, accompanied by a Blackhawk helicopter. Agents arrested 389 workers. Five months later, the government arrested the plant's manager, Sholom Rubashkin, on charges of harboring illegal immigrants, but ICE's case had problems. For example, it turned out that an undercover ICE agent had twice tried to secure employment at this plant, but he was turned away because he did not have the proper papers. It would not do to have such a dramatic raid and nothing to show for it. The Justice Department filed seven superseding indictments charging bank fraud. The indictments included a creative theory — that Rubashkin falsely certified to the bank that Agriprocessors was complying with all the laws even though it was employing undocumented aliens. The federal jury did convict on the bank fraud charges, and the federal government dropped all immigration charges....
Federal prosecutors recommended life imprisonment. After widespread criticism of such a harsh sentence by many people (including six former U.S. attorneys general), the government asked for a 25-year sentence. Judge Linda Reade, the trial judge, imposed 27 years instead.
But Reade did more than impose a disproportionate sentence. After Rubashkin's conviction and sentence, defense lawyers learned that Reade, over a six-month period, had been actively engaged in planning the Agriprocessors raid. E-mails and affidavits showed that, long before the raid occurred, Reade met with ICE agents to discuss "charging strategies, numbers of anticipated arrests and prosecutions, logistics, the movement of detainees, and other issues related" to the investigation and operation. At one meeting, which law-enforcement personnel attended at the judge's request, the judge stated that she was "willing to support the operation in any way possible, to include staffing and scheduling." She was essentially part of the prosecution team....
The judge and the prosecutors should have notified Rubashkin's lawyers that she had participated in planning the raid so that they could move to recuse her. Failure to do so was prosecutorial and judicial misconduct.
Related posts on the Rubashkin case:
- "More Former AGs Question Sentence Sought in Bank Fraud Case"
- Can and should religious considerations influence bail decisions?
- Federal sentencing hearing starting in high-profile Rubashkin white-collar case
- Federal prosecutors now seeking 25-year prison term for Rubashkin
- Kosher plant chief Sholom Rubashkin sentenced to 27 years imprisonment
- An appellate amicus brief in the Rubashkin case on sentencing issues
- Rubashkin appeal raising more questions about high-profile federal fraud case
- Eighth Circuit panel unanimously affirms Rubashkin federal convictions and lengthy prison sentence
Florida cases support(?) DOJ's expressed concerns about white-collar sentencing disparities
In a speech last month (reported here), AAG Lanny Breuer continued the Justice Department's tendency to lament what it sees as growing post-Booker sentencing disparities, especially in white-collar sentencing. Specifically, in this speech, Breuer complained that "with increasing frequency, federal district courts have been sentencing fraud offenders -- especially offenders involved in high-loss fraud cases -- inconsistently." Assuming DOJ is keeping a file with examples of this disparity, this new sentencing story from Florida, headlined "Marian Morgan sentenced to 35 years in prison," provides seemingly strong support for these concerns. Here is how the local story gets started:
Convicted in September for running a multimillion-dollar Ponzi scheme from her Sarasota mansion, Marian Morgan on Friday was sentenced to 35 years in federal prison.
That's more than twice as long as the sentences for two other notorious Sarasota-based fraud perpetrators — Arthur Nadel and Beau Diamond — even though Morgan's scheme involved fewer victims and less money overall....
Defense attorney Todd Foster argued that Morgan, 57, would be unlikely to turn to crime again if released after 15 to 20 years. The judge countered that recidivism would not be an issue because of the length of the sentence.
A federal pre-sentencing report recommended Morgan's prison time be based on the size of the fraud; the number of victims; and the sophistication of the crime, among other criteria. Morgan and her husband, John, stole roughly $28 million from 87 victims, prosecutors said during trial.
Of course, what looks on the surface to be an ugly example of so-called sentencing disparity might upon closer examination really turn out to be more of an ugly example of the so-called trial penalty. Consider these additional details:
Morgan and her husband were indicted last summer on 22 felony counts that included wire and mail fraud, money laundering and conspiracy. Their Ponzi scheme came to light shortly after two others that were also hatched in Sarasota — Nadel's Scoop Management and Beau Diamond's Diamond Ventures scams.
Diamond was convicted at trial of stealing more money than the Morgans and from more investors. He is currently serving a 15-year sentence in federal prison in Miami. Nadel robbed more than 400 investors of $162 million, prosecutors determined. Instead of going to trial, Nadel plead guilty to 15 felony fraud counts and was sentenced to 14 years in prison in October 2010. He died earlier this month in North Carolina at age 79.
In contrast to his wife, John Morgan received a 10-year sentence after pleading guilty to a pair of felony counts. He also agreed to co-operate with prosecutors — which included providing information against his wife....
Marian Morgan, who as managing director of Morgan European Holdings had the most interaction with investors, was defiant to the end. She turned down a plea deal last fall that would have limited her sentence to 18 years, choosing instead to go to trial....
[Morgan's] victims were lured by the promise of monthly double digit returns, with payoffs as short as three months in some cases. Instead, investors received only frequent emails from Marian Morgan, which promised payments were to arrive soon. She also offered detailed explanations concerning delays, and later in the scheme threatened that investors would never see their principal again if they contacted authorities....
Morgan plans to appeal her sentence through Tampa defense attorney Barry Cohen. Long and other victims have alleged the money to pay both Cohen and Foster may have come from investors in the Ponzi scheme. Morgan will likely be imprisoned well into her eighties, even with time already served in Pinellas and time off for good behavior.
Based on this article, it would seem that the "going rate" at sentencing for a significant Ponzi scheme in south Florida is somewhere around 15-years in federal prison. With this number in mind, the 10-year prison term given to the cooperating Mr. Morgan seems roughly in line with local norms with a five-year discount for cooperation. And the plea offer capping Ms. Morgan's sentencing exposure at 18 years coming from the feds also seems reasonable under the circumstances.
And yet Ms. Morgan gets with a 35-year prison term (and I suspect that the recommended guidelines range may have been even higher). If DOJ is truly concerned about unwarranted sentencing disparity in financial fraud cases — rather than, as I fear, really just concerned about the post-Booker potential for unwarranted sentencing leniency or about some defendants who have the temerity to exercise their trial rights not having to pay an extra heavy sentencing price — then federal prosecutors ought to consider supporting Ms. Morgan's sentencing appeal to the Eleventh Circuit. But I would bet a whole lot of money that on appeal federal prosecutors will defend this extremely long white-collar sentence as reasonable even though it surely does appear out of line with the sentences given to similar defendants convicted of similar crimes.
Do capital repeal and three-strikes reform initiatives help or hurt each other in California?
As noted in this prior post, it became official last week that Californians will get a chance to vote this fall on a ballot initiative to repeal the state's death penalty. In addition, as reported in this effective press story from late last week headlined "Three Strikes Law initiative likely to qualify for Nov. ballot," it also now appears that voters at the same time will have a chance to reform the state's (in)famously harsh three-strikes sentencing law. Here are the basics on that front:
An initiative written by Stanford University professors to scale back California's tough Three Strikes Law has garnered more than 830,000 signatures of support, virtually ensuring the measure will make the November ballot and triggering the state's latest struggle over how harshly criminals should be treated.
California is the only one of the 26 states with three strikes laws to allow prosecutors to charge any felony as a third strike -- and then to lock up the offenders for 25 years to life. The proposed initiative would reserve that penalty for the baddest of the bad, including murderers, rapists and child molesters.
Supporters turned in more than 830,000 signatures to state election officials Thursday -- 504,760 more than needed. They also announced the endorsement of Los Angeles County District Attorney Steve Cooley -- a Republican -- marking a crucial step toward a bipartisan coalition.
"The Three Strikes Reform Act is right for California," Cooley said. "It will ensure the punishment fits the crime. Dangerous recidivist criminals will remain behind bars for life, and our overflowing prisons will not be clogged with inmates who pose no risk to public safety."
Under the existing Three Strikes sentencing scheme, offenders who have committed such relatively minor third strikes as stealing a pair of socks, attempting to break into a soup kitchen to get something to eat and forging a check for $146 at Nordstrom have been sentenced to life in prison.
Cooley's support is particularly notable because he has taken a conservative position on two other criminal-justice controversies in California. He opposes a November ballot measure that would scrap the death penalty and has sharply criticized the Legislature's massive "realignment" program, which started in October to relieve prison overcrowding, for effectively reducing the amount of time low-level offenders spend behind bars.
But Mike Reynolds, a Fresno man who helped draft the Three Strikes Law after his daughter was slain in 1992 by two repeat offenders, said prosecutors like Cooley should have more discretion over how to charge anyone with two strikes on their record who commits another felony, no matter how minor. "It's easy if you live in Palo Alto, where Stanford is and where it's safe, to be for this," Reynolds said. "The only question voters need to answer is which of these offenders with at least two serious or violent convictions on their record would you like to have living next door to you? And if you wouldn't want them next door to you, why would you put them next to any California family?"...
The new measure would allow only certain hard-core criminals to be put away for life for any felony offense, including shoplifting, while restricting the third strike to a serious or violent felony for everyone else. It also does not include changing the rules for second-strikers, which currently call for sentences to be doubled in many cases, even if the second offense is not serious or violent. Although an effort to alter the law in 2004 required third-strikers whose last offense was nonviolent and nonserious to be resentenced, the new initiative would allow only third-strikers to ask the courts to resentence them.
District attorneys in the Bay Area are expected to support the initiative, though several were noncommittal about it Thursday. A spokeswoman for Alameda County District Attorney Nancy O'Malley said she doesn't take a position on pending initiatives. Steve Wagstaffe, San Mateo's top prosecutor, said he would "not be bothered if it won" because it already is extremely rare for his office to seek life sentences for people who commit nonviolent or nonserious offenses, with the exception of sex crimes.
Santa Clara County District Attorney Jeff Rosen said he'll make a final decision after a meeting in June of the California District Attorneys Association. "I believe the Three Strikes Law should be reformed," Rosen said through a spokesman. "The Stanford initiative contains some good ideas."...
Advocates predict the savings will prove persuasive, particularly with critical swing voters, though they also plan to frame the campaign in terms of public safety and fairness. A previous measure in 2004 failed by about 3 percentage points after a last-minute media blitz by then-Oakland Mayor Jerry Brown, then-Gov. Arnold Schwarzenegger and former Gov. Pete Wilson. Brown has declined to comment on the current effort.
Opposition to the new measure is expected to come largely from the Central Valley and parts of Southern California. The previous measure, Proposition 66, sought to limit felonies that trigger a third strike to violent or serious crimes in every case.
This latest effort to reform California's three-strikes law via inititative is fascinating and worth watching closely in its own right. But the fact that this reform effort will appear on the ballot (and likely get less attention both nationwide and within California) at the same time as an inititative to repeal yhe state's death penalty adds an extra important (and distorting?) element to the public discourse.
I can readily imagine some (many? most?) criminal justice reform advocates urging a "yes" vote on both the death penalty repeal and the three-strike reform initiatives. For example, this recent editorial from the San Francisco Examiner, headlined "Time to end the death penalty, reform three-strikes law," wastes little time getting on record support for both initiatives.
But, as the report above highlights, there is reason to expect some (many? most?) California prosecutors will be fine with the three-strikes reform initiative but will oppose repeal of the death penalty. In addition, I would not be surprised if some hard-core death penalty abolitionists will express no more than luke-warm support for three-strikes reform if (when?) any polling data suggest that voters may be likely to vote for only one and not both of these sentencing reform proposals.
For a whole bunch of reasons, I do not think these distinct California reform initiative should necessarily stand or fall together. And yet, I will not be surprised if they do, and I also cannot figure out if this reality makes me extra excited or extra concerned about crime and punishment debates in California over the next sixth months.
SCOTUS grants cert to consider Padilla's retroactivity
Hard-core criminal procedure fans have to be giddy this morning based on the news in this Supreme Court order list: the Justices have granted cert in Chaidez v. US concerning whether the decision in Padilla applies retroactively to persons whose convictions became final before its announcement. This is not a huge surprise, in part because the SG's office had urged SCOTUS to grant cert on this issue.
SCOTUSblog has this helpful case page on the Chaidez case. I suspect and expect this case will end up generating lots of intriguing amicus briefing on both sides, in large part because Chaidez has the potential to be the most significant Teague retroactivity ruling in many years.
Maryland's distinctive (and mysterious) approach to sentencing review
A recent high-profile and sad drunk-driving case has brought new attention to a low-profile and distinctive aspect of Maryland's sentencing system. This recent local article, headlined "'Endless' sentencing hearings in Maryland take toll on victims, families," discusses the cases and surrounding proceedings that have generated significant attention in the Old Line State:
In January, Carolyn Hoover sat in a packed Montgomery County courtroom to watch a judge sentence the young man who drunkenly crashed his car into a telephone pole and trees, killing her son and two others.
Less than four months later, her family was back in court for another sentencing hearing, and a three-judge panel cut 21-year-old Kevin Coffay's prison term from 20 years to eight.
"I felt sick inside," said Hoover, whose 20-year-old son, John, was killed. All involved in the crash attended Magruder High School or were recent graduates. "Every time we have to go to another hearing, it sets us back months."
The case has raised questions about an unusual and little-known Maryland law that lets defendants ask for a new sentence from a three-judge panel, even if there was nothing illegal about their original punishment. The result can be an agonizing process for victims and their families, who are often taken by surprise and must endure numerous court dates yet never feel like a case has reached its end....
It's difficult to tell how often panels review sentences and reduce them. David Soule, executive director of the Maryland State Commission on Criminal Sentencing Policy, said the commission does not keep data on sentencing review panels. A Maryland courts spokeswoman and local state's attorney's offices also could not provide that data.
In addition to the panels, defendants can also ask their sentencing judge to reconsider a sentence. It's routine for defendants to request a new sentence through at least one of those avenues, said Seth Zucker, spokesman for the Montgomery County State's Attorney's Office.
Most requests for sentencing panels are denied without a hearing and the sentences remain unchanged, said Byron Warnken, a Maryland lawyer who specializes in post-conviction work. But when a hearing is granted, the sentence is reduced about three-quarters of the time, he estimated.
The three-judge panels are most likely to reduce lengthy sentences, Warnken said. "They can throw you a bone without letting you walk away from prison," he said....
Combined with parole and other appeals, prosecutors and victims advocates say, there's often no end in sight. "Our concern here is the virtually endless review process for even legal sentences," Zucker said.
Hoover said the process has made it nearly impossible to move forward after her son's death. "I would rather have had a lighter sentence to begin with and not go through what we had to go through," she said.
This companion article, headlined "Panels created to quell controversy," provides this brief backstory concerning Maryland's sentence review panels:
The sentencing review panels now under fire in Maryland due to a recent drunken-driving case in Montgomery County were created in hopes of quelling controversy over sentences.
A law creating the three-judge panels was enacted after a 1965 report on criminal sentences in the state found "alarmingly disparate" penalties, according to Maryland Court of Appeals opinions that address the act and its history.
I tend to be a strong proponent of strong mechanisms for appellate review of sentencing decisions by individual judges, and thus I am very drawn to the structure of Maryland's means for reviewing sentences. But such a review system ought to bring greater regularity and transparency to the sentencing process, and yet this article suggested Maryland's practice seems wrapped in irregularity and uncertainty.
April 29, 2012
"Debate rages over severity of child-porn sentences"
The AP has this lengthy new piece, sharing the headline of this post, on what is now a fairly old story: federal judges and others highlighting that the guideline sentences for child porn downloaders seem often unduly harsh. I am not aware of any major new developments on this front, but these excerpts from the AP piece effectively review recent parts of this long-running debate over federal sentencing law and practices:
Their crimes are so loathsome that some hardened courtroom veterans recoil at viewing the evidence. Yet child-pornography offenders are now the focus of an intense debate within the legal community as to whether the federal sentences they face have become, in many cases, too severe.
By the end of this year, after a review dating to 2009, the U.S. Sentencing Commission plans to release a report that's likely to propose changes to the sentencing guidelines that it oversees. It's a daunting task, given the polarized viewpoints that the commission is weighing. The issue "is highly charged, both emotionally and politically," said one of the six commissioners, U.S. District Judge Beryl Howell.
On one side of the debate, many federal judges and public defenders say repeated moves by Congress to toughen the penalties over the past 25 years have badly skewed the guidelines, to the point where offenders who possess and distribute child pornography can go to prison for longer than those who actually rape or sexually abuse a child. In a 2010 survey of federal judges by the Sentencing Commission, about 70 percent said the proposed ranges of sentences for possession and receipt of child pornography were too high. Demonstrating their displeasure, federal judges issued child porn sentences below the guidelines 45 percent of the time in 2010, more than double the rate for all other crimes.
On the other hand, some prosecutors and members of Congress, as well as advocates for sexual-abuse victims, oppose any push for more leniency. At a public hearing in February, the Sentencing Commission received a victim's statement lamenting that child pornography offenders "are being entertained by my shame and pain."...
Once completed, the Sentencing Commission report will be submitted to Congress, which could shelve it or incorporate its recommendations into new legislation. Already, the commission has conveyed some concerns. In a 2010 report on mandatory minimum sentences, the commission said the penalties for certain child pornography offenses "may be excessively severe and as a result are being applied inconsistently."
However, similar misgivings voiced by the commission in previous years failed to deter Congress from repeatedly ratcheting up the penalties - including legislation in 2003 that more than doubled average sentences for child pornography crimes....
In a recent article for the journal of the National Association of Criminal Defense Lawyers, former Sen. Arlen Specter of Pennsylvania and former federal prosecutor Linda Dale Hoffa criticized the approach by Congress. "The fact that child pornography offenders can be given longer sentences than child abusers or violent offenders reflects a lack of care by Congress," Specter and Hoffa wrote. "In the rush to prove itself hostile to individuals who possess or distribute child pornography, Congress has obscured the real distinctions between different offenders."...
As a backdrop to the sentencing debate, Internet-based child pornography has proliferated, and the crime is an increasingly high priority for federal law enforcement agents. According to the Justice Department, federal prosecutors obtained at least 2,713 indictments for sexual exploitation of minors in 2011, up from 1,901 in 2006....
There's one point of agreement in the sentencing debate: All parties agree that penalties should remain severe -- or be toughened -- for those who produce and promote child pornography. A key point of contention, by contrast, is the degree to which offenders charged with receipt and possession of child porn pose a risk of physically abusing children themselves, as opposed to looking at images of abuse....
Susan Howley, public policy director for the National Center for Victims of Crime, has been urging those involved in the debate to keep the victims in mind. She says they face higher risk of developing mental health disorders, sexual dysfunction and substance abuse problems. "While sentencing does not appear to be the perfect tool to reduce the market for child abuse images, it is one of the few tools available," Howley told the public hearing in February. "Through sentencing we express to society, and to the individual victims and family members harmed, that we recognize the seriousness of this offense."
A few related older and more recent child porn prosecution and sentencing posts:
- Outstanding local media coverage of the crime, prosecution and punishment of kiddle porn downloaders
- "The Efficacy of Severe Child Pornography Sentencing: Empirical Validity or Political Rhetoric?"
- Fascinating data on recent trends and circuit specifics for federal child porn sentences
- Effective local reporting on realities and debates surrounding federal sentencing guidelines for child porn
- "Most federal judges not comfortable with tough guidelines"
- Timely discussion of federal judicial concerns with guideline sentences for kiddie porn downloaders
- Fascinating DOJ testimony to US Sentencing Commission about child porn sentencing
- "From Peer-to-Peer Networks to Cloud Computing: How Technology Is Redefining Child Pornography Laws"
- Another effective review of federal sentencing severity for child porn downloaders
Open thread for reflections the 20-year anniversary of the LA "acquittal" riots
I can hardly believe it has already been two decades since the sad and stunning multi-day riots in Los Angeles, which followed the (surprising?) acquittal by an all-white state jury of four white LA police officers who were videotaped severely beating Rodney King following a traffic stop. There were so many elements to the role of race and media and criminal justice surrounding the Rodeny King events, and sentencing fans also know that the subsequent federal prosecution of the officers involved in the videotaped beating led to Koon v. United States, the most important and consequential Supreme Court ruling about the operation of the federal sentencing guidelines in the period post-Mistretta and pre-Booker.
I suspect many readers of this blog remember many (different) aspects of all the Rodney King events, and I welcome reflections of all sorts on this 20th anniversary of the most violent and remarkable moment in what was ultimately a multi-year saga. Ever the sentencing nerd, and because the SCOTUS ruling in Koon was the focal point of much of my pre-Booker scholarly writing about the federal sentencing system, I am tempted to opine at length about what the Supreme Court did right and did wrong in Koon. But readers really interested in that part of the story can and should just check out my (still timely?) article on this topic, Balanced and Purposeful Departures: Fixing A Jurisprudence That Undermines the Federal Sentencing Guidelines, 76 Notre Dame Law Review 21 (2000).
Rather than focus on federal sentencing (and its enduring challenges), perhaps here it is worthwhile to recall Rodney King's famous quote when asked to comment about the riots and the seemingly positive subsequent tales of race relations in LA. King famously asked back in 1992, “Can we all get along? . . . I mean, we're all stuck here for a while. Let's try to work it out.” And this Wall Street Journal article, headlined "Twenty Years Later, L.A.'s Divisions Fade: Attitudes Toward Police and Race Relations Have Turned Positive Since Devastating Riots; Economy Is Big Concern Now," suggests we now have a decent answer to this query.