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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:

May 19, 2012 in Criminal justice in the Obama Administration, Data on sentencing, Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (6) | TrackBack

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 19, 2012 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (19) | TrackBack

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:

May 18, 2012 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

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.

May 17, 2012 in Almendarez-Torres and the prior conviction exception, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

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).

May 17, 2012 in Clemency and Pardons, Mandatory minimum sentencing statutes, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

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:

May 17, 2012 in Offender Characteristics, Race, Class, and Gender, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

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.

Download 10-cr-10310Gurley Mem

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.

May 17, 2012 in Celebrity sentencings, Offense Characteristics, Who Sentences? | Permalink | Comments (1) | TrackBack

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. 

May 17, 2012 in Drug Offense Sentencing, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (57) | TrackBack

"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.

May 17, 2012 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

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 17, 2012 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

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.

May 16, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

"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.”

May 16, 2012 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (0) | TrackBack

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.

May 16, 2012 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (12) | TrackBack

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.

May 16, 2012 in Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

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 16, 2012 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

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).

May 15, 2012 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

"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.

May 15, 2012 in Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (54) | TrackBack

New report highlights inequities in Michigan’s JLWOP sentences

JlwopmapAs 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.

May 15, 2012 in Jackson and Miller Eighth Amendment cases, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Sixth Circuit panel produces pair of notable opinions in CP sentencing reversal

Judicial administration fans, as well as sentencing fans, will want to find time to check out today's Sixth Circuit panel decision in US v. Aleo, No. 10-1569 (6th Cir. May 15, 2012) (available here). The start of the majority opinion highlights what the opinion covers and what it is notable:

In this case, we deal with two appeals arising out of the criminal conviction and sentencing of Craig Aleo. Craig Aleo appeals his sentence (Part I), and his trial attorney, John Freeman, appeals the sanction imposed upon him by the district court (Part II).

Craig Aleo was sentenced to the statutory maximum sentence of 720 months of imprisonment after he pleaded guilty to one count each of producing, possessing, and transporting and shipping child pornography. His guidelines range was 235–293 months. Because we cannot find a justification within the factors enumerated in 18 U.S.C. § 3553(a) to justify the variance imposed by the district court, we reverse and remand for resentencing.

Craig Aleo’s trial counsel, John Freeman, was sanctioned $2,000, based on the district court’s inherent power to sanction, because he filed a motion asking the court to compel the government to make a formal motion regarding any victim who wanted to speak at trial pursuant to the Crime Victim Rights Act (CVRA), naming the victim, and providing a preview of the victim’s statement.  Because there is no objective evidence that trial counsel filed this motion in bad faith, we reverse.

And the start of Judge Sutton's concurring opinion highlights why judicial administration aficianados ought also find Aleo of interest:

I join the court’s decision in full, including its conclusion that the district court abused its discretion when it invoked its inherent power to impose sanctions on defense attorney John Freeman for filing a frivolous motion.  I write separately to express skepticism about a lower federal court’s power ever to use inherent authority, as opposed to the contempt power established by statute (18 U.S.C. § 401) and implemented by rule (Fed. R. Crim. P. 42), to punish a defense attorney in a criminal case for filing a frivolous motion.

May 15, 2012 in Booker in the Circuits, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

"Carlos De Luna Execution: Texas Put To Death An Innocent Man, Columbia University Team Says"

The title of this post is the headline of this new Huffington Post piece, which reports on a team of notable researchers making the notable claim that they have concluded that Texas executed an innocent man way back in 1989.  Here are excerpts from the HuffPo report:

Columbia University law professor James Liebman said he and a team of students have proven that Texas gave a lethal injection to the wrong man. Carlos De Luna was executed in 1989 for stabbing to death a gas station clerk in Corpus Christi six years earlier. It was a ghastly crime. The trial attracted local attention, but not from concern that a guiltless man would be punished while the killer went free.

De Luna, an eighth grade dropout, maintained that he was innocent from the moment cops put him in the back seat of a patrol car until the day he died. Today, 29 years after De Luna was arrested, Liebman and his team published a mammoth report in the Human Rights Law Review that concludes De Luna paid with his life for a crime he likely did not commit. Shoddy police work, the prosecution's failure to pursue another suspect, and a weak defense combined to send De Luna to death row, they argued.

"I would say that across the board, there was nonchalance," Liebman told The Huffington Post. "It looked like a common case, but we found that there was a very serious claim of innocence."

Police and prosecutors treated the killing of Wanda Lopez at the Sigmor Shamrock gas station on February 4, 1983, like a robbery gone bad. A recording of the chilling 911 call from Lopez, a 24-year-old single mom working the night shift, captured her screaming and begging her killer for mercy.

De Luna, then 20, was found hiding under a pickup truck a few blocks from the gory crime scene. A wad of rolled-up bills totaling $149 was in his pocket. Eyewitness testimony formed the bedrock of the case against him. Now, that testimony is perhaps most contested aspect of his conviction....

Among the key findings in the Columbia team's report:

  • The eyewitness statements actually conflict with each other. What witnesses said about the appearance and location of the suspect suggest that they were describing more than one person.

  • Photos of a bloody footprint and blood spatter on the walls suggest the killer would have had blood on his shoes and pant legs, yet De Luna's clothes were clean.

  • Prosecutors and police ignored tips unearthed in the case files that Carlos Hernandez, an older friend of De Luna, who had a reputation for wielding a blade, had killed Lopez. The defense failed to track down Hernandez, who bore a striking resemblance to De Luna.

"If a new trial was somehow able to be conducted today, a jury would acquit De Luna" said Richard Dieter, executive director of the Death Penalty Information Center, who read a draft of Liebman's report. "We don't have a perfect case where can agree that we have an innocent person who's been executed, but by weight of this investigation, I think we can say this is as close as a person is going to come."...

One of De Luna's attorneys, James Lawrence, told HuffPost he doesn't count him among the clients who've been wrongfully accused of capital crimes. "The fact that he wouldn't help us and this was his life on the line -- that's the one thing that kept bothering the living daylights out of me," Lawrence said.

Since the Supreme Court reinstated capital punishment in 1976, there have been 1,295 executions, according to the Death Penalty Information Center. Texas leads with 482 executions.

The ease with which De Luna was prosecuted and the obscurity of his death are what makes his case so important, said Liebman. "There are many cases out there that nobody has ever looked at and are probably at risk of innocence," said Liebman. "It's a cautionary tale about the risks we take when we have the death penalty."

Intriguingly and helpfully, the details of this investigation and a lot of related materials can be accessed directly via a website maintained at this link by the Columbia Human Rights Law Review.   This Editors' Note page explains what one can find there:

In order to enhance the narrative-style of the prose and provide an uninterrupted version of the Article that would be easily accessible to a non-legal audience, HRLR is publishing Los Tocayos Carlos in print version without footnotes or endnotes.  Instead, at the conclusion of each Chapter of the Article (including the Foreword, Prologue, and Epilogue) we are including a source list that describes, in full citation form, the sources the authors used to research and write that section.

Accompanying the publication of this Issue is a website that features a version of Los Tocayos Carlos with standard footnotes.  The web version of the Article contains approximately 3,434 footnotes, each reviewed thoroughly by several members of HRLR’s Staff and Editorial Board, which provide the reader with a fuller understanding of the basis for the authors’ factual assertions and inferences. Furthermore, the footnotes provide hyperlinks to view the cited sources, allowing readers to access, download, and view for themselves the original sources instantaneously. Additional materials provided by the authors are showcased on the website as well. Included on the website are video and audio taped interviews of individuals closely involved in the narrative, family trees, diagrams, timelines, and charts. These materials are designed to enrich readers’ understanding of the events leading up to and surrounding Wanda Lopez’s murder on February 4, 1983 and Carlos DeLuna’s execution on December 8, 1989.  The web version of the article can be found on HRLR’s general website, www.hrlr.org.

May 15, 2012 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (34) | TrackBack

Detailing the ugliness of modern clemency practice in Arizona

Brewer-ObamaWhile the journalists at ProPublica continues to do great work exposing the ugliness of the clemency process in the federal system (details here and here), reporters at the Arizona Republic have detailed in this recent lengthy article that the clemency norms in that state are just as ugly.  Here are the basics from an article headlined "Arizona prisoners rarely granted clemency":

By his 14th birthday, Tommy Londo was addicted to crack cocaine. With both parents in prison, he grew up on the streets of Phoenix, homeless and uneducated. He spent his teens in and out of mental hospitals and shelters. After he was arrested in 2004 for selling a $20 lump of crack to an undercover police officer, prosecutor Eric Rothblum described him as "a clear societal liability." Londo was sentenced to 15 years and nine months in prison.

Seven years later, in 2011, Arizona's Board of Executive Clemency unanimously agreed that Londo had turned his life around. He was working on his GED, was drug-free and had earned a certificate for good behavior in prison.

The board recommended commuting Londo's sentence to five years, stating in a letter to Gov. Jan Brewer that Londo was someone who "has made outstanding progress." The board noted, too, that the judge who sentenced Londo had called the prison term required by Arizona's mandatory-sentencing laws "excessively harsh" given the situation.

Brewer denied Londo clemency without comment last June. Londo has plenty of company. Statistically, if you are convicted of a felony in Arizona, you are more likely to be struck by lightning than granted clemency by the governor. Excluding the cases of inmates nearing the end of a terminal illness, Brewer is on track to grant the fewest clemency cases in more than two decades -- even when a judge and unanimous board recommend a shorter sentence.

Recent board members interviewed by The Arizona Republic believe clemency will be granted even less frequently in the future. Indeed, Brewer's decision to replace three of the five clemency-board members at once last month has led to legal and political turmoil: Departing board members say they were ousted for voting to grant clemency; and attorneys for an inmate scheduled to be executed Wednesday will be in Maricopa County Superior Court on Monday, seeking a court order to nullify the appointments, arguing that they violated state laws. If the court agrees, it would invalidate dozens of board decisions from the past three weeks and could stall the clemency process....

Budget cuts have reduced the number of clemency cases the board can hear to one-fourth as many as three years ago, creating a nearly two-year, 900-case backlog. This withering of clemency brings both personal fallout, in ruined lives and separated families, and a financial cost to taxpayers, who pay to house and feed inmates who could otherwise be working and paying taxes. In Londo's case, it will cost taxpayers at least $200,000, based on Department of Corrections per-inmate prison-cost estimates of $22,166 a year....

From 1913, when Arizona established a board of pardons and paroles, until 1993, fewer than 60 inmates a year applied for commutation, on average. In 1993, the state adopted so-called "truth in sentencing" laws, which effectively abolished parole. The new code requires offenders to serve at least 85 percent of their sentence before becoming eligible for community supervision; for many felonies, 100 percent of the sentence must be served. The laws, along with mandatory minimums that took discretion in sentencing out of the hands of judges, left commutation as the only avenue for most offenders to seek a reduced sentence. By 2005, commutation applications soared to more than 1,200 a year....

Brewer is the first governor in at least 34 years who has not issued a single pardon. She has denied each of the clemency board's 13 recommendations. By comparison, Janet Napolitano issued 22 pardons over six years, Jane Dee Hull issued seven over 5.3 years, Fife Symington issued 13 over 6.5 years, and Rose Mofford granted 13 over three years....

There is an exception to Brewer's aversion to clemency: She has granted 19 requests to release inmates medically judged to have only days or weeks to live and who weren't considered a public-safety threat. Otherwise, in her three years and four months in office, she has routinely denied unanimous board recommendations for clemency, leaving scores of prisoners serving longer sentences than the board found they deserved.

Brewer declined requests for an interview. Her spokesman, Matthew Benson, issued a statement saying that every case is reviewed and that Brewer "fulfills this solemn responsibility with the seriousness owed, and always mindful of the victims harmed by these crimes."

Perhaps the most-debated commutation rejected by Brewer is the case of William Macumber, who was convicted in 1975 of a 1962 double homicide and sentenced to life in prison. In a unanimous recommendation three years ago, the board said he had served excessive time in prison and had a record of behavior showing he is not a threat to society. Most importantly, the board called his conviction a miscarriage of justice, saying that "the evidence that now exists certainly casts serious doubt on Mr. Macumber's conviction."

Former state Judge Thomas O'Toole told the board that another man confessed to committing the murders to him in 1967, but attorney-client privilege required him to remain silent about the confession until after his client died.

Montgomery's office strenuously opposed Macumber's clemency petition, calling his petition misleading. Brewer denied commutation in November 2009, sparking critical national-media coverage. In October 2010, Brewer fled her own televised news conference after Macumber's son asked the governor about her decision.

"The parole board says he's innocent, yet she still won't do anything," says P.S. Ruckman Jr., an Illinois political-science professor who publishes a blog on clemency, pardonpower.com. He is highly critical of Brewer and other governors who he says don't appear to take their pardon powers seriously. "Sometimes the law has a disproportionate impact and may be too rigid. That's what the pardon power is for," he says. "Brewer has the power and discretion to have a larger sense of justice and to do something about it. That's her duty."

Since taking office, Brewer has granted five commutations, aside from those for inmates at death's door. Four of these reduced sentences by less than 2.5 years. The biggest reduction was for Christopher E. Patten, who was sentenced to seven years for manslaughter as the driver of a vehicle in a 2005 drive-by shooting in Phoenix. The judge noted that Patten was forced at gunpoint to drive the vehicle, turned himself in to police and testified against the shooters at the risk of his life. He served just under two years before the governor granted a commutation in October 2009. Aside from those granted to dying inmates, Brewer hasn't granted any commutations in the last 17 months and has rejected 39 recommended by the board, out of 1,180 applications, according to board records. That does not include the nearly 900 cases in the backlog.

This story makes me wonder if there may have been a big misunderstanding concerning the (in)famous interaction between Gov Brewer and Prez Obama captured in the photo posted above.  Rather than having a testy encounters, perhaps Gov Brewer was telling Prez Obama how pleased and impressed she was that the Prez has been as much of a clemency scrooge as she has been.

Related posts concerning federal and state clemency practices:

May 15, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Fascinating DOJ report on number of prosecuted Wall Street executives

Yesterday's Wall Street Journal had this notable report on an exchange of letters between Senator Charles Grassley and the US Department of Justice concerning how many Wall Street executives have been prosecuted and convicted for financial crisis misdeeds.  The article is headlined "Missing: Stats on Crisis Convictions," and here are excerpts:

It is a question that has been asked time and again since the financial crisis: How many executives have been convicted of criminal wrongdoing related to the tumultuous events of 2008-2009?  The Justice Department doesn't know the answer.

That is because the department doesn't keep count of the numbers of board-level prosecutions. In a response earlier this month to a March request from Sen. Charles Grassley (R.,Iowa), the Justice Department said it doesn't hold information on defendants' business titles.  "Consequently, we are unable to generate the [requested] comprehensive list" of Wall Street convictions stemming from the 2008 meltdown, the letter from the Department of Justice to Mr. Grassley said.

The explanation raises eyebrows among legal experts.  Adding up the numbers of financial chief executives and chief financial officers put behind bars for their role in the crisis shouldn't be too difficult, they say.

"It's not a big number to count, that's for sure," said Chris Swecker, who ran the Federal Bureau of Investigation's criminal division from 2004 to 2006.  William Black, a former bank regulator, said the government used to keep these figures....

The Securities and Exchange Commission highlights on its website its civil crisis-related enforcement actions against senior corporate officers -- a total of 55 so far.  Mr. Black, an associate professor of economics and law at the University of Missouri-Kansas City, said it seems "smart" of the Justice Department to no longer keep score of boardroom prosecutions.  "I can tell you why you wouldn't keep the data," he said. "Because it would be really embarrassing."

A spokeswoman for the Justice Department said the numbers of financial-fraud cases being brought has increased since the crisis. "When we find sufficient evidence of criminal conduct, we will not hesitate to bring charges," she added....

In the three years since the crisis peaked in October 2008, the Justice Department has filed financial-fraud cases against 14,843 defendants, according to the letter to Mr. Grassley.  Over that time, it said, more than 1,100 people have been sentenced to prison for mortgage fraud.

The letter names 17 CEOs and other senior corporate officers convicted of significant financial crimes.  Most of the 17 committed frauds that weren't directly related to the financial crisis.  They include Allen Stanford, convicted in March of running a Ponzi scheme; Raj Rajaratnam, jailed last year for insider trading; and Zevi Wolmark, who pleaded guilty this year to bid-rigging in the municipal-finance market. Courtney Dupree, convicted last year of a $21 million bank fraud, makes the Justice Department's list.

But only one of the cases mentioned by the Justice Department in the letter to Mr. Grassley concerns alleged wrongdoing by a Wall Street firm directly related to the financial crisis: the criminal charges filed this year against three former Credit Suisse Group AG CSGN.VX +0.16% employees for allegedly inflating mortgage-bond values.

Mr. Grassley said the letter "substantiates my suspicion" the government "isn't going after the big banks, big financial institutions or their executives."  The Justice Department is instead "hiding behind a bunch of mortgage fraud prosecutions," Mr. Grassley said in a statement.

But officials said the scarcity of crisis-related prosecutions might reflect a lack of criminal behavior, rather than any failure of law enforcement.... The only criminal trial against Wall Street executives for alleged wrongdoing related to the crisis involved two former Bear Stearns hedge-fund managers. Their acquittal on all charges in 2009 was a significant setback for federal prosecutors.

The WSJ has provided links to Senator Grassley's letter and DOJ's response, both of which are interesting reading, though I think one needs an on-line subscription to get this access.

May 15, 2012 in Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

May 14, 2012

"Laissez-faire with strip-searches: America's two-faced liberalism"

The title of this post is the headline of this recent commentary appearing in The Guardian authored by Professor Bernard Harcourt.  The piece, which I have been meaning to post for some time, makes for a very interesting read and it gets started this way:

There is a deep tension in contemporary US political thought between the notion of freedom that tends to dominate in the socio-economic domain and the concept of liberty that predominates in the penal sphere.  In socio-economic matters, the idea of freedom tends to be shaped by classic economic liberalism: the belief that an invisible hand shapes favorable public outcomes, that individuals need robust protection from the government, that the state should refrain from interfering in commerce and trade.  In the law enforcement and punishment context, by contrast, the dominant way of thinking about liberty gives far more ground to the government, to the police and to the state security apparatus.

This tension, when it gets acute, gives rise to what I would call "two-faced" or "Janus-faced liberalism".  Over the last 40 years, during a period characterized by increased faith in free markets, in deregulation, and in privatization, America's Janus-faced liberalism has worsened and fueled the uniquely American paradox of laissez-faire and mass incarceration.  In the country that has done the most to promote the idea of a hands-off government, our government runs, paradoxically, the single largest prison system in the whole world.

This past month, the great American paradox took a distinctly dystopian turn, particularly at the US supreme court.  The oral argument on the constitutionality of President Obama's Affordable Care Act, in conjunction with the court's decision on the constitutionality of strip-searching all persons arrested even on the most minor traffic infractions, crystallize this worrisome trend.  My sense is that I am not alone in this assessment; there appears to be growing recognition across the US that this two-faced liberalism may, in fact, be pushing the country, inch-by-inch, in the direction of a police state.  This is surely true of the recent strip-search case, Florence v County of Burlington.

May 14, 2012 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

CJLF petitions to have death-penalty-repeal initiative taken off California ballot

As reported in this new local article, headlined "Bump California death penalty measure from November ballot, group says," a new legal challenge has been presented to the California ballot initiative concerning the death penalty. Here are the details:

A law-and-order organization on Monday asked a state appeals court to bump a measure off the November ballot that would repeal California's death penalty, arguing that it violates the so-called "single subject" rule because it proposes multiple reforms.

The ballot language is "deceptive" and conflicts with state rules that limit voter initiatives to a single subject the Criminal Justice Legal Foundation argues in a petition filed with the Sacramento-based 3rd District Court of Appeal.

The foundation brought the lawsuit on behalf of Phyllis Loya, the mother of a Pittsburg police officer fatally shot in 2005 whose killer was sent to death row by a Contra Costa County jury.

The SAFE California Act would abolish the death penalty, clear the state's death row and replace capital punishment with life in prison without the possibility of parole. But the measure also provides for shifting as much as $100 million used for death penalty costs to a fund that would pay for solving murder and rape cases.

The lawsuit argues that the measure contains conflicting proposals that combine unrelated reforms into a single ballot argument. "This kind of manipulation ... is exactly what the single-subject rule was put in the constitution to prevent," said Kent Scheidegger, the foundation's legal director.

Supporters of the ballot measure predicted the appeals court would reject the legal arguments.

May 14, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Professor Bowman's latest potent pitch for a Booker fix

I have long respected (and even have sometimes agreed with) Frank Bowman's informed perspectives on federal sentencing policy and practice.  Thus I am pleased to see his latest and greatest advocacy for reform of the post-Booker system now available on SSRN.  This latest piece, which is forthcoming in the Federal Sentencing Reporter, is titled "Nothing is Not Enough: Fix the Absurd Post-Booker Federal Sentencing System."  Here is the abstract:

This article is an elaboration of testimony I gave in February 2012 at a U.S. Sentencing Commission hearing considering whether the advisory guidelines system created by the Supreme Court’s 2005 decision in United States v. Booker should be modified or replaced. I argue that it should.

First, the post-Booker advisory system is conceptually indefensible.  It retains virtually every feature excoriated by critics of the original sentencing guidelines.  Its extreme ‘advisoriness,’ while partially ameliorating some problems with the original guidelines, reintroduces the very concerns about unreviewable judicial arbitrariness that spawned the structured sentencing movement in the first place.  More importantly, the post-Booker system does not solve the biggest problem with the pre-Booker system — that its architecture and institutional arrangements predisposed the Commission’s rule-making process to become a one-way upward ratchet which raised sentences often and lowered them virtually never.  Its sole relative advantage — that of conferring additional (and effectively unreviewable) discretion on sentencing judges — is insufficient to justify its retention as a permanent system.

Second, there exist a number of constitutionally permissible alternatives to the court-created Booker system, one of which — that originally proposed by the Constitution Project and more recently endorsed by Judge William Sessions, former Chair of the U.S. Sentencing Commission — is markedly superior to the present system.

Third, the difficult problem is not designing a sentencing mechanism better than either the pre- or post-Booker guidelines, but ensuring that such a system, once in place, does not replicate pre-Booker experience and become a one-way upward ratchet prescribing ever higher sentences.  I offer suggestions about how this difficulty might be solved. However, I concede both the difficulty of this problem and the justice of the concern that, however imperfect the advisory system, it may be the best that can be achieved given the present constellation of institutional and political forces.

May 14, 2012 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Intriguing victim rights' issues raised by 9/11 husband's anti-death penalty position

The New York Post has this interesting new exclusive story headlined "Husband of 9/11 victim goes to Gitmo to spare plotters from death sentence."  Here are excerpts:

The husband of a woman killed on 9/11 went to Guantanamo Bay on a shocking secret mission — to try to save the lives of the al-Qaeda monsters who planned the murder.

Blake Allison — one of 10 relatives of victims to win a lottery for tickets to the arraignment of confessed 9/11 mastermind Khalid Sheik Mohammed and four of his evil accomplices — had told people he was making the trip because "I wanted to see the faces of the people accused of murdering my wife."  But while there, the 62-year-old wine-company executive held a clandestine meeting with the terrorists’ lawyers, in which he offered to testify against putting their clients to death.

A vocal critic of capital punishment, Allison wants to convince the US government to spare the lives of KSM and his minions even if a military commission convicts them of a slew of death-penalty charges.  “The public needs to know there are family members out there who do not hold the view that these men should be put to death,” Allison told The Post. “We can’t kill our way to a peaceful tomorrow.”

Allison’s 48-year-old wife, Anna, was a software consultant on her way to visit a client in Los Angeles when her plane, American Airlines Flight 11, was smashed into World Trade Center Tower 1 on Sept. 11, 2001.

In a lengthy conversation from his home in New Hampshire, Allison explained his controversial view — one he admits is not shared by his late wife’s relatives or by the other family members of victims he met at Guantanamo.  “My opposition to the death penalty does not say I don’t want the people who killed my wife and [the other 911 victims] brought to account for their crimes,” he said.  “But for me, opposition to the death penalty is not situational.  Just because I was hurt very badly and personally does not, in my mind, give me the go-ahead to take a life.”

He said that “9/11 was a particularly egregious and appalling crime,” but added, “I just think it’s wrong to take a life.”

Allison, who has remarried, is under no illusion that the terrorists have reformed — and would not gladly kill more Americans.  After staring at the fiendish faces of KSM, Ramzi bin al Shibh, Walid bin Attash, Mustafa al-Hawsawi and KSM nephew Ali Abdul Aziz Ali, Allison said he is certain they have “no apparent remorse and would do it again.”

Still, he said, “I’ve been opposed to the death penalty for decades, before my wife was murdered on 9/11.  I’m still opposed to it.”

He said he spoke to other family members at Guantanamo and came to realize he was alone in his view. “I know they’re sincere in their beliefs,” he said. “They want what they perceive as justice for their loved ones. I would never tell anybody in my position what they should feel.”

The defense lawyers were pleased, but probably not terribly surprised to see him.  Allison had previously testified on behalf of 9/11 conspirator Zacarias Moussaoui — the so-called 20th hijacker — who had faced the death penalty but was sentenced to a life term, which he’s serving in the Supermax prison in Colorado....

He said his opposition to execution is rooted in his Episcopalian faith. “When Martin Luther was being asked to recant by the hierarchy of the Roman church for all his Protestant actions, he said, ‘Here I stand. I can’t do otherwise.’ That’s the way I feel. First and foremost, I don’t think it’s right to take a life. It’s grounded in my religious faith. The New Testament is very clear about this.”

As the title of this post highlights, I think there are some unique federal legal issues raised by Blake Allison's status as a crime victim and his vocal opposition to the death penalty when combined with the distinctive realities of the military commissions being used to try KSM and his ilk for the 9/11 mass murders.  As regular readers know, after the 2004 passage of the federal Crime Victims Rights Act (basics here), Allison has an distinct and enforceable right to notice about and a "right to be reasonably heard" in any and all "public court proceeding." But what being "reasonably heard" and even what qualifies as a "public court proceeding" is an uncertain legal issue in the context of the military commission process.  Among other interesting questions raised here is whether and how Allison could complain and/or appeal using the CVRA if he feels he is not having his rights as a victim respected by the feds through the military commission process.

May 14, 2012 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

May 13, 2012

ProPublica reveals more ugliness in federal clemency process

The Washington Post has published here the latest installment of ProPublica's on-going investigative reporting on the federal clemency system.  This lengthy piece is headlined " Clarence Aaron was denied commutation, but Bush team wasn’t told all the facts," and here are excepts:

Clarence Aaron seemed to be especially deserving of a federal commutation, an immediate release from prison granted by the president of the United States.  At 24, he was sentenced to three life terms for his role in a cocaine deal, even though it was his first criminal offense and he was not the buyer, seller or supplier of the drugs.  Of all those convicted in the case, Aaron received the stiffest sentence.

For those reasons, his case for early release was championed by lawmakers and civil rights activists, and taken up by the media, from PBS to Fox News.  And, ultimately, the prosecutor’s office and the sentencing judge supported an immediate commutation for Aaron.

Yet the George W. Bush administration, in its final year in office, never knew the full extent of their views, which were compiled in a confidential Justice Department review, and Aaron’s application was denied, according to an examination of the case by ProPublica based on interviews with participants and internal records.

That Aaron joined the long line of rejected applicants illuminates the extraordinary, secretive powers wielded by the Office of the Pardon Attorney, the branch of the Justice Department that reviews commutation requests.  Records show that Ronald Rodgers, the current pardon attorney, left out critical information in recommending that the White House deny Aaron’s application.  In a confidential note to a White House lawyer, Rodgers failed to accurately convey the views of the prosecutor and judge and did not disclose that they had advocated for Aaron’s immediate commutation.

Kenneth Lee, the lawyer who shepherded Aaron’s case on behalf of the White House, was aghast when ProPublica provided him with original statements from the judge and prosecutor to compare with Rodgers’s summary.  Had he read the statements at the time, Lee said, he would have urged Bush to commute Aaron’s sentence....

The work of the pardon office has come under heightened scrutiny since December, when ProPublica and The Washington Post published stories showing that, from 2001 to 2008, white applicants were nearly four times as likely to receive presidential pardons as minorities.  The pardon office, which recommends applicants to the White House, is reviewing a new application from Aaron.  Without a commutation, he will die in prison....

The number of pardons awarded has declined sharply in the past 30 years, as have commutations.  Obama has rejected nearly 3,800 commutation requests from prisoners. He has approved one.  Bush commuted the sentences of 11 people, turning down nearly 7,500 applicants.  A former pardon office lawyer said some applicants have been turned down “en masse”with little, if any, review, a claim the Justice Department disputes....

Between 1980 and 2010, requests for commutations rose sharply, reflecting lengthier sentences and the elimination of paroles for federal inmates, while the number of successful applicants plummeted.  Under Ronald Reagan and Bill Clinton, both two-term presidents, one applicant in 100 was successful.  Under Bush, approvals fell to barely better than one in 1,000.

Related posts concerning ProPublica series and federal clemency practices:

May 13, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24) | TrackBack

Profiling the top lock-up state in the top incarceration nation

Prison-referlogo-051312png-740cefbf65715ba5I am intrigued and pleased to see that the New Orleans Times-Picayune today starts this huge new eight-part series titled "Louisiana Incarceration: How We Built the World's Prison Capital." The first piece in the series is headlined simply "Louisiana is the world's prison capital," and it gets started this way:

Louisiana is the world's prison capital.  The state imprisons more of its people, per head, than any of its U.S. counterparts.  First among Americans means first in the world. Louisiana's incarceration rate is nearly triple Iran's, seven times China's and 10 times Germany's.

The hidden engine behind the state's well-oiled prison machine is cold, hard cash.  A majority of Louisiana inmates are housed in for-profit facilities, which must be supplied with a constant influx of human beings or a $182 million industry will go bankrupt.

Several homegrown private prison companies command a slice of the market.  But in a uniquely Louisiana twist, most prison entrepreneurs are rural sheriffs, who hold tremendous sway in remote parishes like Madison, Avoyelles, East Carroll and Concordia.  A good portion of Louisiana law enforcement is financed with dollars legally skimmed off the top of prison operations.

If the inmate count dips, sheriffs bleed money. Their constituents lose jobs.  The prison lobby ensures this does not happen by thwarting nearly every reform that could result in fewer people behind bars.

Meanwhile, inmates subsist in bare-bones conditions with few programs to give them a better shot at becoming productive citizens. Each inmate is worth $24.39 a day in state money, and sheriffs trade them like horses, unloading a few extras on a colleague who has openings. A prison system that leased its convicts as plantation labor in the 1800s has come full circle and is again a nexus for profit.

In the past two decades, Louisiana's prison population has doubled, costing taxpayers billions while New Orleans continues to lead the nation in homicides.

One in 86 adult Louisianians is doing time, nearly double the national average.  Among black men from New Orleans, one in 14 is behind bars; one in seven is either in prison, on parole or on probation.  Crime rates in Louisiana are relatively high, but that does not begin to explain the state's No. 1 ranking, year after year, in the percentage of residents it locks up.

In Louisiana, a two-time car burglar can get 24 years without parole.  A trio of drug convictions can be enough to land you at the Louisiana State Penitentiary at Angola for the rest of your life.

May 13, 2012 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Some Mother's Day sentencing headlines

In addition to encouraging everyone to hug a mom, I can honor today's Hallmark holiday with this set of links to some mother-themed sentencing stories:

May 13, 2012 in Offender Characteristics | Permalink | Comments (0) | TrackBack