May 19, 2012
"Data suggests drug treatment can lower US crime"
The title of this post is the headline of this notable new Reuters piece via Fox News. Here are excerpts:
U.S. crime statistics show illegal drugs play a central role in criminal acts, providing new evidence that tackling drugs as a public health issue could offer a powerful tool for lowering national crime rates, officials said on Thursday.
An annual drug monitoring report, released by the White House Office of National Drug Control Policy, also showed a decline in the use of cocaine since 2003, a sign that drug-interdiction efforts and public education campaigns may be curtailing the use of the drug's powder and crack forms. The rate of overall illegal drug use in the United States has declined by roughly 30 percent since 1979.
But Thursday's report, based on thousands of arrestee interviews and drug tests, showed that on average 71 percent of men arrested in 10 U.S. metropolitan areas last year tested positive for an illegal substance at the time they were taken into custody. The figures ranged from 64 percent of arrests in Atlanta to 81 percent in Sacramento, California, and were higher for nearly half of the collection sites since 2007.
U.S. officials held up the data as evidence to support President Barack Obama's strategy aimed at breaking the cycle of drugs and crime by attacking substance abuse with treatment rather than jail for nonviolent offenders. "Tackling the drug issue could go a long way in reducing our crime issues," Gil Kerlikowske, head of the office that issued the report, told Reuters in an interview. "These data confirm that we must address our drug problem as a public health issue, not just a criminal justice issue."
The arrest figures included men taken into custody on more than one charge as well as those arrested in drug busts. The data showed that on average about 23 percent of violent crimes and property crimes, including home burglaries, were committed by people who tested positive for at least one of 10 illegal drugs including marijuana, heroin and methamphetamines. Charlotte, North Carolina, had the highest proportion of drug-related violent crime offenses at 29 percent, while New York City had the highest for drug-related property crimes at 32 percent....
U.S. health officials says the link between drugs and crime is socially complex. But the effect drugs have on human behavior can seem more straightforward. "Drugs impact things like inhibitory control. And our ability to weigh risks and consequences of certain behaviors is severely effected by drug abuse," said Dr. Redonna Chandler of the National Institute on Drug Abuse.
Drug enforcement experts say the evidence strongly supports wider use of drug courts, which seek to impose treatment regimens instead of prison sentences on repeat criminals that are dependent on illegal drugs.
West Huddleston, of the Alexandria, Virginia-based National Association of Drug Court Professionals, said a convicted criminal who successfully completes a court-imposed treatment regimen is nearly 60 percent less likely to return to crime than those who go untreated. There are more than 2,600 drug courts operating in the United States. But they reach only a fraction of drug-addicted offenders.
According to Chandler, 5 million of an estimated 7 million Americans who live under criminal justice supervision would benefit from drug treatment intervention. But only 7.6 percent actually receive treatment.
The full official report serving as the basis for this story is available at this link, and it provides lots of interesting information about persons who get arrested, including these data:
Over half (55 percent) were not working either full or part time. Depending on the site, from 27 percent to 82 percent had no form of health insurance, either private, work related, or government subsidized. They were also a population very familiar with the criminal justice system: in 9 of the 10 sites, 80 percent or more of arrestees had been arrested before, and from 13 to 30 percent had been arrested more than two times in just the prior year.
Perhaps appropriately, I have not seen any effort to spin this 2011 arrestee information to assert that data suggest job growth or health care reform can lower US crime. More generally, I feel confident that the relationship(s) between drug use, employment, health care and crime rates are very complex and defy any simple solutions.
Still, this new arrestee data is interesting and important. And I am pleased to see the Obama Administration, via this White House post by drug czar Gil Kerlikowski, use the data to push for more drug treatment and not simply to push for still greater funding for the federal drug war.
Some recent and older related posts on drug courts and drug politics:
- New research shows positive outcomes from drug court programs
- "How Would Jesus Punish Drug Use?"
- Former president of Poland urges "Saying No to Costly Drug Laws"
- Drug policy discussed by President Obama after YouTube questions
- "Bummer: Barack Obama turns out to be just another drug warrior"
- Is the time right for candidate Ron Paul to lead withdrawal from the "war on drugs"?
- New poll reports that large majority of Americans consider "War on Drugs" a failure
- "Presidential candidate to Obama: end drug war & pardon jailed marijuana users"
Missouri AG pushing state to get serious about carrying out executions again
This interesting new AP article, headlined "Missouri attorney general urges state Supreme Court to schedule executions or explain why not," reports on efforts by Missouri Attorney General Chris Koster to get his state's machinery of death operational again. Here are the details:
Koster filed a motion on Thursday seeking execution dates for nine men. The motion also questions why the court has not set execution dates for 10 others whose execution dates were previously requested. "Silence is not an option in this matter any longer," Koster said in an interview on Friday. "The court needs to give us the word that we can move forward with these, or they need to articulate why not."
Beth Riggert, spokeswoman for the Missouri Supreme Court, declined to speculate on why execution dates have not been set for the 10 earlier inmates. As for the nine new ones, she said each has five business days to respond to Koster's call for execution dates. "The court will rule when it deems it appropriate," she said.
Meanwhile, Missouri's next execution will apparently use a new process. Previously, the state used a three-drug protocol. But a shortage of one of those drugs, sodium thiopental, has prompted the state to go to a single-drug method.
Between 1989, when executions resumed in Missouri, and 2005, the state put to death 66 convicted killers. But in the seven years since then, only two men have been executed — Dennis Skillicorn in 2009 and Martin Link last year....
In Missouri, the attorney general typically requests an execution date after traditional court appeals are exhausted. In years past, the state Supreme Court would then establish a date, setting in motion last-minute court appeals as well as a clemency request before the governor. But it has been six years since Koster's predecessor, now Gov. Jay Nixon, requested an execution date for Jeffrey Ferguson. Execution dates for five inmates have been pending since 2007.
Koster acknowledged that two issues may have made the Supreme Court reluctant to move forward. Death penalty opponents have filed several claims that lethal injection violates a constitutional guarantee against cruel and unusual punishment, saying it potentially causes extreme pain that the drug-induced inmate cannot articulate. A 2010 ruling by the U.S. Supreme Court cleared the use of the drugs. Then a shortage of one of the three drugs emerged. Some states halted executions because of the inability to obtain sodium thiopental, which renders the inmate unconscious....
Missouri has revised its protocol and will now use just one drug, propofol (marketed as Diprovan), which will be administered intravenously, Dave Dormire, director of the Missouri Department of Correction's Division of Adult Institutions, said in a statement on Friday. Corrections officials did not say when the new protocol was adopted.
Koster also noted that there has been a change in "political sentiment" toward the death penalty, with an increasing number of states reluctant to carry it out and prosecutors becoming more reluctant to seek it. Still, he said that as long as it is law in Missouri, there is an obligation to move forward with executions. "The political world doesn't affect the carrying out of these sentences until legislatures act," Koster said. "I have an obligation to strictly follow the letter of the law. The Supreme Court does as well."
May 18, 2012
What are the odds SCOTUS grants cert in the (in)famous Rubashkin case?
The question in the title of this post is prompted by this recent commentary by Harlan Protass in the Des Moines Register headlined "Jail sentence doesn't fit the crime." Here are snippets:
Sholom Rubashkin, a first-time, non-violent offender, was convicted in 2009 of bank fraud related to his operation of a kosher slaughterhouse in Postville. He is no Boy Scout. He committed financial fraud, was convicted at trial and deserves punishment. Like any defendant found guilty of having committed a federal crime, Rubashkin also was constitutionally entitled to consideration of all arguments for leniency, an explanation of the reasons for the sentence he received, and review of that punishment by a higher court.
But when Chief District Judge Linda R. Reade of the U.S. District Court for the Northern District of Iowa disregarded her obligation to consider Rubashkin’s grounds for mercy and instead just sentenced him to 27 years behind bars, she left the appellate judges who examined Rubashkin’s case with no means for determining whether the penalty she imposed was fair, just or reasonable. That’s why it’s so important for the U.S. Supreme Court to hear Rubashkin’s appeal....A series of recent Supreme Court decisions prohibit judges from mechanically adhering to federal guidelines. Rather, judges are supposed to use their own judgment when meting out sentences, including consideration of all factors that might mitigate the sentence suggested by the guidelines. Simply put, judges are required to impose sentences that fit both the offender and the offense and are supposed to jail defendants for only as long as is “sufficient, but not greater than necessary” to reflect a host of penal objectives.
In Rubashkin’s case, Judge Reade paid only lip service to these legal requirements. She dispatched her obligation to consider factors other than the federal guidelines in a mere four pages of her 52-page sentencing decision. She essentially gave the back of her hand to the mitigating detail presented by Rubashkin’s lawyers, including his responsibility for 10 children, his extensive charitable activities, the absence of any indication that he was motivated by greed, and, most significantly, the disproportionality of the sentence recommended by federal guidelines as compared to those handed down in fraud cases of similar size and scope.
On appeal, the U.S. Court of Appeals for the Eighth Circuit essentially ignored Judge Reade’s omissions, inaccurately stating that she had “explicitly discussed each possible basis” for a shorter sentence than that called for by federal guidelines. In doing so, that court failed to fulfill its own obligation to ensure that sentences conform with the constitutional standards set by the Supreme Court.
To ensure the promise of a fair and just criminal justice system, it is critical that the Supreme Court, which is currently considering his request for a hearing, review Rubashkin’s case. It should find that judges must state on the record — in a written statement of reasons or during the sentencing hearing itself — that they considered and how they accounted for each and every mitigating factor.
This is of particular importance to those who receive sentences measured in decades, not years, like the 27-year prison term that Rubashkin received. The alternative — silence by sentencing judges — is constitutionally unacceptable, not only for the likes of Rubashkin, but also for any other citizen who might one day run afoul of the law.
As detailed in an amicus brief on sentencing issues I authored to support Rubashkin's cert petition (discussed here), I concur with this commentary's advocacy for SCOTUS review in this case focused on sentencing issues. In addition, as detailed in this ABA Journal report, my amicus brief was one of six filed in support of cert. One amicus brief, authored by former SG Seth Waxman, concerns recusal issues based on the presiding judge's pre-trial involvement with prosecutors as "was signed by 86 former officials and judges, including former attorneys general and other prior Justice Department officials. They include former FBI directors Louis Freeh and William Sessions, former Attorneys General Edwin Meese and Dick Thornburgh, and former Solicitor General Kenneth Starr." And, other amicus briefs "were filed by the National Association of Criminal Defense Lawyers ..., the Association of Professional Responsibility Lawyers, a group of 40 legal ethics professors, and the Justice Fellowship. Some of the briefs deal only with the fairness of the sentence, while others deal with recusal issues and the 8th Circuit's new trial standard."
All this amicus support, together with the fact that former SG (and SCOTUS magician) Paul Clement is representing Rubashkin before the High Court, surely raises significantly the odds of a cert grant. But, while making a cert grant more likely, it is hard to ever assert that a cert grant in a federal criminal case is "probable." Indeed, in this effective Slate commentary focused upon the judicial bias issues raised by the case, Emily Bazelon concludes with this sober assessment:
The larger problem here is that, practically speaking, federal judges have enormous leeway in deciding whether to take themselves off a case because of potential bias or perceived bias. When they make a bad call, there are rarely any consequences. In all likelihood, the Supreme Court will turn Rubashkin down and refuse to intervene this time, too. The jury who convicted Rubashkin sat for 18 days and reviewed more than 9,000 exhibits, and the justices probably have as little appetite for a do-over as they do for smacking down Judge Reade. But even if you can’t bring yourself to care much about the fate of Sholom Rubashkin, the oddities of this case don’t sit well. Judges shouldn’t be able to make up their own rules for policing themselves.
As this Supreme Court docket sheet reveals, the feds will not be filing a response to all the cert advocacy until at least early July, and thus the Justices will not be considering this case directly until well into summer. To its credit, SCOTUS recently has not shield away from taking up high-profile criminal cases raising high-profile issues (see, e.g., US v. Skilling), and thus I am a bit more optimistic that Bazelon that SCOTUS will take up the Rubashkin case. But I am eager to hear from readers as to whether they think this might be just wishful thinking on my part.
May 18, 2012 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Gall reasonableness case, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack
North Carolina prosecutors convene to strategize about Racial Justice Act claims
This local piece from North Carolina, headlined "Prosecutors will learn how to fight Racial Justice Act," reports on the next chapter in the on-going story concerning the law and practices surrounding the state's Racial Justice Act. Here are the details:
A month after a Cumberland County judge ruled for the defendant in the first case under the Racial Justice Act, about 60 prosecutors from across North Carolina are coming to Forsyth County today to learn how to fight motions filed under the law.
Forsyth County prosecutors are preparing for two pending motions under the Racial Justice Act, a law adopted in 2009 that allows defendants and death-row inmates to use statistics and other evidence to prove that race played a significant role in their cases.
The motions filed under the act deal with statistics from a study by two Michigan State University law professors finding racial disparities in the application of the death penalty. Successful motions can lead to changing a death sentence to life in prison without the possibility of parole.
Forsyth County prosecutors are consulting with statistical experts and other witnesses who might be used in other Racial Justice Act cases across North Carolina. Forsyth County District Attorney Jim O'Neill said giving other prosecutors a chance to hear those experts in a one-day session saves money.
He declined to comment on specifics of the training because it deals with pending litigation, but he said in general that the Racial Justice Act has resulted in expensive legal actions.
O'Neill said he and other prosecutors tried to warn legislators that the Racial Justice Act would cost millions of dollars in taxpayer money, to no avail. "This training session is my attempt to save at least some money for the taxpayers," he said....
O'Neill and other prosecutors have opposed the Racial Justice Act, calling it a backhanded attempt to end the death penalty. They have also said the law would clog the court system. More than 95 percent of the people on death row have filed under the act....
Peg Dorer, executive director of the N.C. Conference of District Attorneys, said the Racial Justice Act cases are unusually complex because they deal with statistics. "It has nothing to do with the facts of the case," she said. "It has to do with statistical cases in the study."
Tye Hunter, executive director of the Center for Death Penalty Litigation in Durham, said he has no problem with prosecutors having a training session but hopes they also deal with the racial disparities the Cumberland judge said are inherent in the death penalty. "I think what Judge Weeks said in his order was that he hoped this would be an opportunity for prosecutors to look at what they had done in the past and avoid making the same mistakes in the future," he said.
Recent related posts on first NC Racial Justice Act ruling:
- 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?
- Reviewing the uncertain state of capital justice in the state of North Carolina
May 17, 2012
Juve priors, sentencing enhancements and Almendarez-Torres makes SCOTUS relist watch
Hard-core Apprendi/Blakely fans (and perhaps only hard-core fans) should be excited to discover this paragraph that lurks deep within this latest installment of John Elwood's always amusing reviews at SCOTUSblog of relisted and held cases on the Supreme Court docket:
Staunton v. California, 11-8851, involves whether the trial court’s use of a defendant’s prior juvenile adjudication, in which he was not afforded a jury trial, to trigger a sentencing enhancement that doubled his state prison sentence violated his right to due process and a jury trial under the Sixth and Fourteenth Amendments. The Court’s decision in Almendarez-Torres v. United States (holding that the fact of a prior conviction, used for a sentence enhancement, could be found by a judge rather than submitted to a jury) has lived sort of a shadow existence since the Court in Apprendi v. New Jersey said it was “arguabl[y] . . . wrongly decided” -– and since Justice Thomas, who provided the fifth vote for the rule in Almendarez-Torres, announced in an Apprendi concurrence that he had “succumbed” to error in that case. (In a later concurrence in part and in the judgment in Shepard v. United States, Justice Thomas observed that “a majority of the Court” -– the four Almendarez-Torres dissenters plus himself -– “now recognizes that Almendarez-Torres was wrongly decided.”) I have been amazed that even as Apprendi grew to engulf so much of sentencing, the Court has not revisited Almendarez-Torres –- despite relisting a couple of cases presenting the continuing validity of the case in January 2011, as discussed here. As Apprendi noted, Almendarez-Torres rested in part on the idea that the defendant enjoyed procedural protections at the time of the original conviction, and so the Constitution did not require that the fact of a prior conviction be tried to a jury when it was later used as a sentence enhancement. But Staunton did not receive that protection. Staunton is the third case this Term in which the Court has relisted notwithstanding that the respondent waived, and the Court has not requested, a response. The relist in those two cases was because of procedural wrinkles that needed to be ironed out; here, there is more of an indication that one or more Justices are taking a closer look — the Court here requested the record.
Two notable forthcoming FAMM events
I am happy to spotlight two notable events put together by Families Against Mandatory Minimums described to me via an e-mail:
The first event is at the National Press Club in Washington DC on Thursday, May 24, from 10-11am: a panel will discuss Dafna Linzer’s shocking Washington Post article on the failures of the Office of the Pardon Attorney (OPA) regarding Clarence Aaron’s commutation request. The panel will include Dafna, former OPA staffer Sam Morison, Debi Campbell (a former prisoner who did not receive a commutation), and Linda Aaron, Clarence’s mother. FAMM is calling on Congress to investigate OPA.
The second event happens on-line on Friday, May 18 (tomorrow): with a focus on Florida laws and the 20-year mandatory minimum Marissa Alexander received for defending herself against her abusive husband, FAMM us trying a “Facebook forum.” FAMM's Florida project director, Greg Newburn, will be taking live Q&A on the topic. This event is a bit of an experiment, and FAMM is hoping for a good turnout (via this link).
Notable Slate piece on gender disparities in sex crime sentencing
Last week in this post I discussed an Arizona case in which a female teacher's aide got a lifetime probation sentence for her sex offenses involving two young teenage boys. I noted that the case reinforced my sense that adult females sexually involved with under-age boys sometimes get much more lenient sentencing treatment than similarly situated males, and now Emily Bazelon has more to say on the subject in this notable new Slate piece. Here are a few paragraphs from her commentary:
Is [Gabriela Compton's] sentence of probation nonetheless justified because women molesting boys is just different than men molesting girls? There are salient differences between men and women when it comes to sex offenses. For starters, men are far more likely to commit sexual assault than women are, accounting for 96 percent of the total. They are also rearrested much more frequently.
The women who perpetrate this misconduct not surprisingly have serious problems. Like the men, they have poor coping skills and trouble showing empathy. This report by the Center for Sex Offender Management breaks female sex offenders into three types, based on clinical observations. The first group were coerced by men into abusing children, even their own. The second were themselves victims of incest or other sexual abuse — this kind of history is far more likely for women sex offenders than for men, and the women in this category also tend to victimize young children in their own families. The third type, labeled “teacher/lover,” sounds more like Gabriela Compton. They were “often struggling with peer relationships, seemed to regress and perceive themselves as having romantic or sexually mentoring ‘relationships’ with under-aged adolescent victims of their sexual preference, and, therefore, did not consider their acts to be criminal in nature.”...
I’d rather the law err on the side of caution and uniformity here. And I can’t really get my mind around probation for a woman who was facing nearly four decades in prison, even if it is probation for life that includes sex-offender registration. Thirteen-year-old boys should be shielded from predatory adults the same way girls are. If they don’t think they want the shield, well, maybe they don’t know what’s good for them.
Not surprisingly, as as true with my original post, this discussion of gender differences and sexual relations has generated a lot of diverse comments.
Prior related post:
- A gendered outcome?: lifetime probation for female teacher's aide engaged in sex acts with middle-schoolers
Judge Young's latest account of (and homage to) jury involvement in sentencing fact-finding
US District Judge William Young of the District of Massachusetts, who has produced a regular supply of interesting (and lengthy) opinions about the role of juries in the modern criminal justice system, today issued another interesting (and lengthy) opinion such in US v. Gurley, No. NO. 10-10310 (D. Mass. May 17, 2012) (available for download below). Judge Young's work always merits attention, and the 51-page sentencing opinion in Gurley does not disappoint. There is far too much ground covered in Gurley to allow a simple summary, but here is the start of the main legal discussion section -- which begins on page 24 of the opinion! -- to provide a flavor of why Gurley is today's federal sentencing must-read:
I am a district judge sitting in the First Circuit. I owe the utmost fidelity to the Acts of Congress, the decisions of the Supreme Court, and those of the First Circuit. Government waiver aside, I owe a duty to explain that my post-Booker insistence on keeping the jury-front-and-center is fully consonant with the controlling statutes and case law.
The issues presented to this Court are whether the Court “must” apply the ten-year mandatory minimum sentence to the basic sentencing range set out in 21 U.S.C. § 841(b)(1)(C) and whether the principle of juror lenity bears on determinations as to the authorized sentence range.
I answer to the first question in the negative because the statutory range authorized by the jury does not provide for a mandatory minimum sentence. As to the second question, Supreme Court precedent binds this Court to recognize the principle of juror lenity in determining the applicable sentencing range. In doing so, this Court does not abdicate its post-Booker discretion to decide a just sentence based on a fair preponderance of the evidence as counseled by the Sentencing Guidelines. Rather, this Court endeavors to harmonize the principle of juror lenity with the jury’s recognized authority to acquit a defendant should a sentencing range appear to it disproportionate.
May 17, 2012 in Blakely in Sentencing Courts, Booker and Fanfan Commentary, Booker in district courts, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Could Justice Breyer's affinity for sentencing guidelines make him a crime magnet?
The question in the title of this post is my silly reaction to this notable news report headlined "Justice Breyer’s Georgetown home hit by burglar." Here are the basics:
It’s been an unpleasant couple of months for Stephen Breyer. In February, the Supreme Court justice was robbed at his Caribbean vacation house by a man wielding a machete. And more recently, we’ve learned, he suffered a burglary at his Georgetown home.
A housekeeper discovered the break-in May 4. It appears no one was home when it happened, Supreme Court spokeswoman Kathleen Arberg confirmed to our colleague Robert Barnes. Arberg could not say what was stolen but confirmed that no material from the court was missing. D.C. police did not immediately provide information on the incident.
It all but certain that, in both recent incidents, the offenders involvedhad no idea that they were victimizing the Supreme Court Justice who wrote the Booker remedy opinion. Nevertheless, one cannot help but be a bit amused by the notion that some Greek God of Crime and Punishment (Nemesis, perhaps) has some comical vision of divine SCOTUS karma.
State judge makes personal plea for right to use medical marijuana
Today's New York Times has this remarkable new op-ed authored by Justice Gustin Reichbach, who serves on one of New York's state Supreme Courts in Brooklyn. The op-ed is headlined "A Judge’s Plea for Pot," and here are excerpts:
Three and a half years ago, on my 62nd birthday, doctors discovered a mass on my pancreas. It turned out to be Stage 3 pancreatic cancer. I was told I would be dead in four to six months. Today I am in that rare coterie of people who have survived this long with the disease. But I did not foresee that after having dedicated myself for 40 years to a life of the law, including more than two decades as a New York State judge, my quest for ameliorative and palliative care would lead me to marijuana....
My survival has demanded an enormous price, including months of chemotherapy, radiation hell and brutal surgery.... Nausea and pain are constant companions. One struggles to eat enough to stave off the dramatic weight loss that is part of this disease. Eating, one of the great pleasures of life, has now become a daily battle, with each forkful a small victory. Every drug prescribed to treat one problem leads to one or two more drugs to offset its side effects. Pain medication leads to loss of appetite and constipation. Anti-nausea medication raises glucose levels, a serious problem for me with my pancreas so compromised. Sleep, which might bring respite from the miseries of the day, becomes increasingly elusive.
Inhaled marijuana is the only medicine that gives me some relief from nausea, stimulates my appetite, and makes it easier to fall asleep. The oral synthetic substitute, Marinol, prescribed by my doctors, was useless. Rather than watch the agony of my suffering, friends have chosen, at some personal risk, to provide the substance. I find a few puffs of marijuana before dinner gives me ammunition in the battle to eat. A few more puffs at bedtime permits desperately needed sleep.
This is not a law-and-order issue; it is a medical and a human rights issue. Being treated at Memorial Sloan Kettering Cancer Center, I am receiving the absolute gold standard of medical care. But doctors cannot be expected to do what the law prohibits, even when they know it is in the best interests of their patients. When palliative care is understood as a fundamental human and medical right, marijuana for medical use should be beyond controversy....
Cancer is a nonpartisan disease, so ubiquitous that it’s impossible to imagine that there are legislators whose families have not also been touched by this scourge. It is to help all who have been affected by cancer, and those who will come after, that I now speak.
Given my position as a sitting judge still hearing cases, well-meaning friends question the wisdom of my coming out on this issue. But I recognize that fellow cancer sufferers may be unable, for a host of reasons, to give voice to our plight. It is another heartbreaking aporia in the world of cancer that the one drug that gives relief without deleterious side effects remains classified as a narcotic with no medicinal value.
Because criminalizing an effective medical technique affects the fair administration of justice, I feel obliged to speak out as both a judge and a cancer patient suffering with a fatal disease. I implore the governor and the Legislature of New York, always considered a leader among states, to join the forward and humane thinking of 16 other states and pass the medical marijuana bill this year. Medical science has not yet found a cure, but it is barbaric to deny us access to one substance that has proved to ameliorate our suffering.
Ever the would-be strategic litigator, I cannot help but wonder if anyone has given serious thought to bringing a federal declaratory judgment action with Justice Reichbach pressing the claim that it would be a violation of Fifth, Eighth and/or Tenth Amendments for him to be subject to criminal prosecution for his use of marijuana under these circumstances. The Supreme Court has ruling that federal prohibition of pot has no statutory exception for medical use and that this prohibition is a legitimate exercise of Congress's Commerce Clause powers. But the Justices have never ruled directly concerning whether there may be an individual liberty right for a very sick person to be able to obtain and use the only drug that seems to provide personal medical relief without fear of federal prosecution.
"Since When Don't We Put a Price Tag on Justice?"
The question in the title of this post is the headline of this new Huffington Post commentary by Professor Ty Alper, which advocates for California's ballot initiative to eliminate the state's death penalty. Here are excerpts:
Faced with unassailable evidence that the death penalty in California costs hundreds of millions of dollars per year, death penalty supporters tend to respond with what is intended to be a conversation stopper: "You can't put a price tag on justice."
But wait a minute. Don't we already? Only in a world with unlimited resources could we run government programs with no regard for their price tags....
My kids go to public school in California and I teach at a public law school. I would love to be able to say, "You can't put a price tag on an education." But that would be ridiculous. It happens all the time.
The implication in the death penalty context, of course, is that only the most heartless among us would relish telling the mother of a murder victim that the person who killed her child is not going to be executed because, well, it just costs too much.
But here's what we need to remember: about half of all rapes and murders in California go unsolved. A 2009 survey asked law enforcement officials what interfered with effective law enforcement. The number one answer was lack of resources. (Last on the list was "insufficient use of the death penalty.") Thousands of rape kits across the state sit unexamined, because there is no money to conduct DNA testing.
The victims of unsolved murders and rapes are no less deserving of justice than the victims of solved crimes. The SAFE California initiative that will be on the ballot in November would eliminate the death penalty, save $1 billion that we desperately need over the next five years, and create a "$100 million fund to be distributed to law enforcement agencies to help solve more homicide and rape cases."...
I'd love to live in a California with no price tags. Until then, the price tag on the death penalty is busting our state's budget.
NY Chief Judge pushing for new courts to try older teens for non-violent offenses
This article from the New York Law Journal discusses a prominent jurist advocating for a novel way for the criminal justice system to handle crimes by older teens. The article is headlined "Lippman Urges Passage of Bill to Up Age of Criminal Responsibility," and here is how it starts:
Chief Judge Jonathan Lippman has begun an aggressive campaign to achieve his top legislative priority: passage of a court system reform that would raise to 18 from 16 the age of criminal responsibility for non-violent crimes.
"You've got to sell it and you have to explain it and you've got to gather the support and build some momentum. That's how things get done in this state," Lippman said in an interview yesterday after he delivered his pitch on juvenile justice to about 150 prosecutors at the New York Prosecutors Training Institute's continuing legal education program in Brooklyn.
"We're continually talking to the different stakeholders," he said. "We're talking to everybody who is a part of this legislative process, both in Albany and the players around the state."
The bill, sent to the state Legislature last month, would establish a "Youth Division" in state superior courts — Supreme Court in New York City and County Courts upstate — to hear misdemeanor and non-violent felony charges against 16- and 17-year-olds (NYLJ, March 2). The hybrid court parts would blend the rehabilitative approach of Family Court with adult criminal courts procedure and protections.
Lippman said many stakeholders — such as prosecutors, probation departments, the defense bar and county government and municipalities — agree in essence with the courts' initiative. However, questions have been raised about its costs and mechanics.
May 16, 2012
"Death as bargaining chip? Ohio prosecutor slammed"
The title of this post is the headline of this notable new AP article. Here are excerpts:
Within days of a drug-related slaying in suburban Cleveland, six men were indicted on charges that carried the possibility of a death sentence. Six months later, all had been allowed to plead to lesser charges, including four who received probation and never went to prison.
In short, the men quickly went from facing the possibility of being strapped to a gurney and having 5 grams of pentobarbital injected into their veins, to prison sentences more typical for robbers and thieves. "It probably was a negotiating tool," said defense attorney Reuben Sheperd, who represented defendant Alex Ford. "You'll be more motivated than you were in other circumstances."
Such scenarios are typical in the county home to Cleveland, where prosecutor Bill Mason pursues dozens of offenders on capital charges each year at added expense to taxpayers and at the risk of some defendants ending up on death row for charges that would be minor elsewhere, even as the number of death penalty prosecutions plummets in Ohio and nationwide, according to an analysis of records by The Associated Press.
Elsewhere in Ohio, prosecutors are pursuing only the most heinous crimes as death penalty cases and are refusing to plea bargain, or are using a 2005 law that allows them to seek life with no chance of parole and never place capital punishment on the table. Mason denies he uses the death penalty as a negotiating tool but also says he never rules out the possibility of lesser charges as more information about a case comes to light....
Defense attorneys have long complained about the high number of capital indictments in Cuyahoga County, a practice that precedes Mason but that he continued after first taking office in 2000. But now one of the state's most conservative and pro-death penalty prosecutors is weighing in.
Joe Deters, prosecutor in Hamilton County, renewed questions about Cuyahoga County's approach during meetings of an Ohio Supreme Court task force. The group, which meets again Thursday, is looking for ways to improve the state's death penalty law. "To use the death penalty to force a plea bargain, I think it's unethical to do that," Deters said in an interview.
Hamilton County, home to Cincinnati, has sent the most inmates to Ohio's death row — 61 over 30 years — though the county has indicted fewer than 200 people in three decades. Deters doesn't accept plea bargains once he decides to pursue a death penalty case.
Mason says a committee of assistant prosecutors reviews the evidence of each death penalty case and encourages defense attorneys to produce reasons that could weigh against the death penalty. "When we seek the death penalty it is not to secure a plea bargain, but instead to equally apply the law," Mason said.
Despite the higher number of capital indictments, Mason's record of winning death sentences is no better than other counties, some of them smaller than Cuyahoga, with about 1.3 million residents. From 2009 to 2011, for example, Cuyahoga County indicted 135 defendants on charges that could result in a death sentence, according to records maintained by Mason's office.
Only two of those offenders were sent to death row, including Anthony Sowell, convicted in 2011 of killing 11 women. The rest either pleaded guilty, usually with the death penalty charges withdrawn, or were convicted but not sentenced to death. In six cases, charges were dismissed.
By contrast, Butler County in southwest Ohio, with 368,000 residents, recorded three death sentences during the same time but indicted just six people on capital charges. "The proof of guilt in a death penalty case has to be near absolute, not a crap shoot," said Butler County prosecutor Michael Gmoser. In addition, "The case has to shock the conscience of the community," he said....
Mason's approach runs counter to a 40-year-old U.S. Supreme Court decision that threw out the country's death penalty laws in part over the arbitrariness of the laws in place at the time, said Ohio state public defender Tim Young. The risk of someone ending up on death row for a crime that might be a far lesser offense elsewhere "seems like a wildly dangerous use" of the death penalty, Young added.
I have never quite fully understood just why it would be considered completely inappropriate for a prosecutor to use death penalty charges a lot, especially given that (1) death sentences are never mandatory, (2) death charges cannot be brought unless and until a defendant commits an especially bad form of murder, and (3) only the threat of a death sentence seems likely to encourage a very guilty murder defendant to be willing to plead guilty to an offense that carries a life or LWOP term.
In contrast, there is little doubt (and too little criticism) of the tendency of prosecutors to use severe mandatory prison terms charges as a bargaining chip not only to secure a plea, but also to force a defendant to become a cooperator against others. In many federal cases, I too often see examples of prosecutors using threats of mandatory prison terms to require non-violent drug and gun offenders to give up their rights in cases that are quite suspect and far more mitigated than any potential capital case.In other words, I worry more about overcharging more in the application of mandatory prison terms than in capital cases.
"The Ninth Circle of Hell: An Eighth Amendment Analysis of Imposing Prolonged Supermax Solitary Confinement on Inmates with a Mental Illness"
The title of this post is the title of this piece available via SSRN authored by Thomas Hafemeister and Jeff George. Here is the abstract:
The increasing number of inmates with a mental disorder in America’s prison population and the inadequacy of their treatment and housing conditions have been issues of growing significance in recent years. The U.S. Department of Justice estimates that “over one and a quarter million people suffering from mental health problems are in prisons or jails, a figure that constitutes nearly sixty percent of the total incarcerated population in the United States.” Furthermore, a person suffering from a mental illness in the United States is three times more likely to be incarcerated than hospitalized, with as many as forty percent of those who suffer from a mental illness coming into contact with the criminal justice system every year and police officers almost twice as likely to arrest someone who appears to have a mental illness. As a result, the United States penal system has become the nation’s largest provider of mental health services, a “tragic consequence of inadequate community mental health services combined with punitive criminal justice policies.”
This growth in the number of inmates with a mental disorder, combined with the recent rise of prolonged supermax solitary confinement and the increasingly punitive nature of the American penological system, has resulted in a disproportionately large number of inmates with a mental disorder being housed in supermax confinement. The harsh restrictions of this confinement often significantly exacerbate these inmates’ mental disorders or otherwise cause significant additional harm to their mental health, and preclude proper mental health treatment. Given the exacerbating conditions associated with supermax settings, this setting is not only ill-suited to the penological problems posed by the growing number of these inmates, but intensifies these problems by creating a revolving door to supermax confinement for many such inmates who may be unable to conform their behavior within the prison environment.
Housing inmates with a mental disorder in prolonged supermax solitary confinement deprives them of a minimal life necessity as this setting poses a significant risk to their basic level of mental health, a need “as essential to human existence as other basic physical demands . . . .”, and thereby meets the objective element required for an Eighth Amendment cruel and unusual punishment claim. In addition, placing such inmates in supermax confinement constitutes deliberate indifference to their needs as this setting subjects this class of readily identifiable and vulnerable inmates to a present and known risk by knowingly placing them in an environment that is uniquely toxic to their condition, thereby satisfying the subjective element needed for an Eighth Amendment claim. Whether it is called torture, a violation of evolving standards of human decency, or cruel and unusual punishment, truly “a risk this grave — this shocking and indecent — simply has no place in civilized society.”
Big win at polls for medical marijuana supporter in Oregon AG race
As highlighted in this Reuters article, which is headlined "Supporter of Oregon medical pot law wins attorney general race," a significant primary victory for a vocal supporter of medical marijuana suggests the 2012 election cycle might be a real turning point for pot policies. Here are the basics:
In a primary election race for Oregon's top law enforcement post, the candidate who pledged to protect medical marijuana patients scored a decisive victory Tuesday night over a rival who led a cannabis crackdown last year.
Retired judge Ellen Rosenblum, strongly backed by proponents of liberalized marijuana laws, captured 63 percent of the vote in the Democratic primary for state attorney general, trailed by former U.S. Attorney Dwight Holton with 36 percent, according to early returns.
Because no Republicans sought their party's nomination for attorney general, the Democratic primary victor, Rosenblum, becomes the presumptive winner in November's general election, making her the first woman to claim that office.
With Rosenblum and Holton taking similar stances on issues such as consumer protection, civil rights and the environment, their diametrically opposed views on medical marijuana emerged as a key point of contention in the race, so much so that the campaign was seen largely as a referendum on drug policy generally.
"As attorney general, I will make marijuana enforcement a low priority, and protect the rights of medical marijuana patients," Rosenblum said on her website before the election. By contrast, Holton called Oregon's medical marijuana law, which has left distribution and cultivation of pot largely unregulated, a "trainwreck" that was putting pot "in the hands of kids" and others who are using it for purposes other than pain management.
In a brief victory statement issued shortly after election officials began to tally the ballots, Rosenblum said she was "honored to have been selected by the voters of Oregon as their choice for the Democratic nominee (for) Attorney General of Oregon." She made no mention of marijuana or any other specific issues. Nor did Holton, who in his concession statement thanked, among others, the coalition of organized labor groups that backed his candidacy.
But medical marijuana advocates seized on Rosenblum's win as a sign that voters were at odds with the federal government's recent crackdown on storefront cannabis shops in states that have legalized personal use, possession and cultivation of pot for healthcare reasons....
The primary contest unfolded as two groups in Oregon are racing to collect enough signatures for two separate ballot initiatives seeking to legalize marijuana for recreational use in the state. If their efforts are successful, Oregon voters will join those in Colorado and Washington state who will decide on the matter in November. A total of 16 states, plus the District of Columbia, allow medical marijuana, though cannabis remains classified as an illegal narcotic under federal law.
Some experts predicted a Rosenblum triumph could resonate well outside of Oregon's largely Democratic-registered electorate. "A victory for Rosenblum could have symbolic power which would reach beyond the state into the national debate," said University of Oregon political science professor Joe Lowndes.
NY legislature, responding to contrary court ruling, quick to make CP viewing criminal
As reported in this new Reuters story, headlined "N.Y. Senate passes bill to make viewing child porn on Internet a crime," legislatures have a way of moving fast when it comes to going after people who view the wrong kind of porn. Here are the details:
The New York State Senate on Tuesday passed legislation to make it a crime to view child pornography on the Internet, as lawmakers rushed to close a loophole opened by a state appeals court just a week earlier.
State law currently prohibits the possession and promotion of child pornography. But a May 8 ruling by the New York Court of Appeals held that viewing child pornography on the Internet without taking further action such as printing or saving files does not necessarily constitute possession.
The ruling caused an instant furor among state lawmakers, who are acting with unusual speed to pass corrective legislation.
The bill passed by the Senate on Tuesday would make it a felony to "knowingly access with intent to view any obscene performance which includes sexual conduct by a child less than sixteen years of age."...
About 15 states have criminalized the viewing of child pornography, many of them in response to court decisions, according to the National Center for Missing and Exploited Children.
Continued great reporting on the toughest state in incarceration nation
As noted in this post from this past weekend, the New Orleans Times-Picayune is published a huge eight-part series on the severity of punishment and prison overcrowding in the Bayou state. This series is titled "Louisiana Incarceration: How We Built the World's Prison Capital," and every piece in the series merits a full read. Today's installment is headlined "Prison sentence reform efforts face tough opposition in the Legislature," and here are a few excerpts from the outset:
Even as prison populations have strained the state budget and prompted fiscal conservatives to join liberals in calling for changes, the political calculus in Louisiana has evolved slowly since a series of tough sentencing laws in the 1970s, '80s and '90s bloated the state's inmate counts.
If anything, the balance has remained tilted toward law enforcement. After a prison-building boom in the 1990s, Louisiana sheriffs now house more than half of inmates serving state time -- by far the nation's highest percentage in local prisons. Their financial stake in the prison system means they will lose money if sentences are shortened. They typically house the same drug pushers, burglars and other nonviolent offenders who will be the likely targets of any serious efforts to change the system.
"The three easiest votes for a legislator are against taxes, against gambling and to put someone in jail for the rest of their lives," said state Sen. Danny Martiny, R-Kenner, a veteran policymaker who has led the judiciary committees in both the House and Senate.
This lengthy piece goes on to detail how challenging it can be to forge a needed political consensus for any ameliorative sentencing reforms.
May 15, 2012
Ninth Circuit panel grudgingly allows Arizona execution to go forward
As reported in this AP article, the Ninth Circuit "is refusing to block an Arizona execution scheduled for Wednesday." Here is a quick summary of all the action:
Separate three-judge panels of the U.S. 9th Circuit Court of Appeals in San Francisco on Tuesday each denied an appeal filed on behalf of Samuel Villegas Lopez. One of the appeals challenged the state's execution procedures while the other argued that Lopez was denied effective legal representation.
Meanwhile, Lopez's lawyers have asked the Arizona Supreme Court to block his execution so a lower court can consider whether Lopez's rights to a fair clemency hearing have been violated.
Lopez is scheduled to be executed for the 1986 murder of Estefana Holmes of Phoenix.
I never cease to be amazed at all the eve-of-execution litigation that can take place more than a quarter-century after a murderer's offense. And, as detailed in opinions linked here, a panel of the Ninth Circuit seems amazed by how Arizona is going about administering its execution protocols (even as it ultimately concludes Arizona should be allowed to move forward with its execution plans).
"Can a sex-offender ever have a fresh start?"
The question in the title of this post is the headline of this notable commentary by Ronnie Polaneczky appearing in the Philadelphia Daily News. Here is how it begins:
Twenty-seven years ago, Dale Bickerstaff did a horrible thing. He was strung out on crack, so he’s sketchy on the details. But he admits he had sex with a female acquaintance whose apartment he broke into, with a friend, to steal a TV.
Bickerstaff maintains that the sex he had with the acquaintance, who was at home, was consensual. The victim and the court disagreed, and he went to jail in 1985 for rape. He was released from prison in 2001 eager for a fresh start. But a fresh start, he has learned, is often impossible once potential employers learn that you’ve been imprisoned for a sex crime.
“They say, ‘You can’t work here; you’re a rapist,’” says Bickerstaff, 52, who was recently offered good custodial jobs by two employers — including the Philadelphia International Airport — that then canceled the offers once his long-ago conviction came to light. “No one takes the time to know you. They see you on the Internet [sex-offender registry] and they slam the door.”
I won’t lie. When Bickerstaff asked me to tell his story, I flinched. What employer in his right mind, I wondered, would knowingly hire a convicted rapist? If something terrible happened, the employer would be held liable for a negligent hiring. And I can’t imagine many employees would happily work alongside Bickerstaff once they learned of his past.
Then again, the rape was in 1985, Bickerstaff did his time, and he hasn’t had a single infraction since leaving prison 12 years ago. So he has more than paid his debt to society. He has also married a good woman whose five grown children and grandchildren have provided him a level of stability and support he says he has never known.
What more does he need to convince an employer that he’s worth a chance? “Honestly, there’s no easy answer,” says William Hart, director of the city’s Re-Integration Services for Ex-offenders (RISE). The program helps newly released inmates who are most likely to re-offend (overwhelmingly, young men) find community and social supports to prevent them from re-terrorizing the public.
But RISE doesn’t work with either sex offenders or arsonists because the program hasn’t the professional staff to deal with clinical issues specific to those offenders. Still, Hart believes that Bickerstaff’s conviction, as time goes on, will play less and less a role in his employment.
Megan Dade, director of the Pennsylvania Sexual Offenders Assessment Board, is not so sure. “The problem is that many people still believe that ‘once a sex offender, always a sex offender,’ even though new research shows that for many people that is just not the case,” says Dade, whose board evaluates sex offenders for the courts.
Her organization is working to refine the state’s classification of sex offenders to distinguish those likely to re-offend from those who probably won’t. But she knows that, no matter the classification, sex offenders face huge employment hurdles. “It’s not easy for any former inmate to find work, especially in this economy,” she says. “For a sex offender, it’s doubly hard.”
But this local story, headlined "Registered sex offender wins election in small Texas town," reveals that at least in some places and with some jobs, a registered sex offender can get a second chance. Here are the basics:
Everywhere you look in Skellytown, there are signs of support for Warren "Red" Mills, which is why him winning one of the two open seats should come as no surprise.
But Mills is a registered sex offender with a history that includes jail time for sexual contact without consent and probation for separate allegations of sexual contact with two minors. That made him an unlikely candidate for city office. But according to city officials, Mills is allowed to hold the position because he does not have a felony conviction.
Some residents still don't like it. Some say it was inappropriate for him to run in the first place and even more inappropriate for him to win. Others are disappointed. But his supporters say he is a good man who will do good things for their city.
New report highlights inequities in Michigan’s JLWOP sentences
As reported in this new press release, the public policy group Second Chances 4 Youth along with the ACLU of Michigan has release a new report "documenting the systemic disadvantages facing juveniles in the adult criminal justice." This report, which it titled “Basic Decency: An Examination of Natural Life Sentences for Michigan Youth,” is summarized in the press releade this way:
The 38-page report explores the fiscal and human costs of juvenile life without parole sentences and the disproportionate punishments and documented racial disparities found in the plea bargaining process for youth accused of certain crimes. The findings rely on publicly available data produced by the Michigan Department of Corrections and survey responses from individuals originally charged with first-degree homicide in Michigan for crimes committed as youth since 1975. The report documents the many challenges youth face in the criminal justice system, including that:
• Race seriously affects the plea bargaining process for adolescents. Youth accused of a homicide offense where the victim was white were 22 percent less likely to receive a plea offer than in cases where the victim was a person of color. In addition, there are clear geographic disparities with Oakland, Calhoun, Saginaw and Kent Counties offering lessor sentences to youth at significantly lower rates than the state average.
• Juveniles reject plea offers at much higher rates than adults; therefore adults receive lessor sentences for comparable crimes. Juveniles are less equipped to negotiate plea offers because of their immaturity, inexperience, and failure to realize the value of a plea deal. Many report that they did not fully understand the nature of the charges they were facing, the crime they were on trial for, or the meaning of parole.
• Attorneys who have represented youth convicted and sentenced to life without parole in Michigan have an abnormally high rate of attorney discipline from the State Bar of Michigan. About 5 percent of all attorneys are reprimanded, however 38 percent of counsel representing youth sentenced to life without parole have been publicly sanctioned or disciplined for egregious violations of ethical conduct.
Michigan law requires that children as young as 14 who are charged with certain felonies be tried as adults and, if convicted, sentenced without judicial discretion to life without parole. Judges and juries are not allowed to take into account the fact that children bear less responsibility for their actions and have a greater capacity for change, growth and rehabilitation than adults.
The U.S. is the only country in the world that sentences youth to life without parole. In the last five years, there has been a downward trend in imposing such sentences across the nation. Michigan is one of only six states deviating from this national movement. Michigan currently incarcerates the second highest number of people serving life sentences without parole for crimes committed when they were 17 years old or younger.
Intriguingly, this new report does not at all discuss the pending SCOTUS cases of Jackson and Miller, which could possibly result in a ruling that all LWOP sentences for juveniles are unconstitutional under the Eighth Amendment. Perhaps that is wise; it remains hard to predict exactly what the Justices will end up doing in those cases when they hand down an opinion in the coming weeks before the end of the current Term.
Moreover, this new report categorically urges, inter alia, that Michigan "abolish Michigan’s sentence of life without the possibility of parole for children who commit homicide offenses prior to the age of 18" and "provide an opportunity for parole for any youth having served ten years of a life sentence with annual reviews thereafter and mandatory public hearing every five years." In part because the Jackson and Miller cases both involve offenders who committed murders at age 14, and in part because SCOTUS has never required a particular timeline for parole consideration, there is little chance that even a very broad SCOTUS ruling in Jackson and Miller will require many (or even any) of the reforms urged by this new report.