June 19, 2012
"Who's Guarding the Henhouse? How the American Prosecutor Came to Devour Those He is Sworn to Protect"
The title of this post is the title of this provocative new paper appearing on SSRN authored by Jonathan Rapping. Here is the abstract:
Every day, all across America, prosecutors charge people with crimes that the criminal justice system is not sufficiently funded to handle. Most of the accused are indigent citizens forced to rely on the services of over-burdened public defenders. In a system that lacks the resources to resolve these cases at trial, or even to spend the requisite capital at the pre-trial stage, prosecutors have found creative ways to process the vast majority of these cases without the expense associated with providing the accused actual justice.
With an ever-expanding list of behaviors and actions deemed criminal, and increasingly harsh sentencing options for these offenses, prosecutors are able to put pressure on most criminal defendants to give up many of their most fundamental Constitutional rights and plead guilty to avoid potentially draconian outcomes. While many prosecutors see this as a cheap and effective way to justly punish wrongdoers, this course of action has largely replaced our reliance on principles of justice such as the right to counsel, the right to trial by jury, and the role of an independent judiciary determining a punishment that fits the crime. By undermining basic principles of justice so crucial to our legal system, one might ask whether this way of handling criminal cases is antithetical to the prosecutor’s critical role as minister of justice.
This article argues that when a prosecutor charges more cases than he knows the system can justly resolve due to resource limitations, he violates his ethical obligation to seek justice. It further argues that many prosecutors fail to appreciate how they violate their duty to justice because of a culture that promotes this behavior. Finally, it suggests that prosecutors must be trained to resist these systemic pressures, and to act in accordance with values consistent with justice, if they are to fulfill their intended role in the criminal justice system.
June 18, 2012
South Dakota murderer says his "sentence of death is justly deserved ... and should be carried out"
The AP has this notable new piece, headlined "AP Exclusive: Inmate says death will bring justice." Here are excerpts:
A convicted murderer said in a letter written from death row that the South Dakota Supreme Court owes it not only to him but to the family of the prison guard he killed to allow his execution to take place in a timely manner. It's the only way, he said, the guard's family can get justice.
Eric Robert, 50, pleaded guilty to killing Ron Johnson during a botched prison escape at the South Dakota State Penitentiary and asked to be put to death. A judge determined in October that the crime merited the death sentence, and Robert was scheduled for execution the week of May 13.
But the state Supreme Court postponed the date in February to allow more time for a mandatory review to make sure the death penalty was proper, even though Robert hadn't appealed the conviction or sentence. The review could take up to two years.
In a three-page letter to the Associated Press, Robert detailed why he believes the death sentence is appropriate in his case and described his aggravation with the delay. The letter represented Robert's first public comments since his October sentencing. He said justice works differently in death penalty cases than in others.
"Victims of non-capital offenses receive their justice when the perpetrator is placed in custody. Victims in capital cases receive their justice when the perpetrator is executed. Give the Ron Johnson family their justice, they have been forced to wait too long. I finish where I started — I deserve to die," he said, alluding to a statement he read during his trial that started with "I deserve to die."...
In his letter, Robert noted that everyone agrees he is mentally competent. "Yet, as recently as May 8, 2012, the (South Dakota Supreme Court) was still nosing around this issue. They just can't seem to fathom that a defendant would accept a just fate," he wrote, later adding he has a right to plead guilty and receive the death penalty. "I am free to admit my guilt, as well as acknowledge and accept society's punishment just as I am free to proclaim innocence in defiance of a verdict. I believe that the sentence of death is justly deserved in any murder and should be carried out."
Another big loss for feds at trial: Rogers Clemens acquitted on all counts
As reported in this New York Times piece, "Roger Clemens, whose hard throws intimidated even the toughest batters and turned him into one of the best pitchers in baseball history, was acquitted Monday of charges that he lied to Congress in 2008 when he insisted he never used steroids or human growth hormone during his remarkably lengthy career." Here is more:
The verdict, which was rendered by a panel of eight women and four men who are largely uninterested in baseball. It was a major, especially painful, defeat for the government in its second failed attempt at convicting a player whose legal problems highlighted baseball’s continuing drug woes.
Last spring, Clemens’s initial trial ended in a mistrial on only the second day of testimony when prosecutors bungled by showing the jury inadmissible evidence. Critics said the prosecution of an athlete like Clemens — a seven-time Cy Young Award winner — was a waste of government time and money, but the United States attorney’s office in Washington pressed forward anyway.
This time, the trial lasted much longer. The jurors heard from 46 witnesses over more than eight weeks before retreating into deliberations last Tuesday afternoon. They had their work cut out for them.
Clemens had been charged with one count of obstructing Congress, three counts of making false statements and two counts of perjury in connection with his testimony to a House committee about his drug use. Under the obstruction count, the jury had to review 13 statements Clemens made to Congress to determine whether he was innocent or guilty of each one. To convict him on that count, the jury needed to find that he had lied only one of those 13 times. He was acquitted of all charges.
When the jurors emerged from their debate, they delivered news that came as a ravaging blow to prosecutors, who had spent more than four years and likely millions of dollars on their case against him.
For Clemens, 49, and his family the verdict was a huge victory — and an obvious relief. If he had been convicted on all counts, he would have faced 10 years in federal prison. Still, all along, Clemens said that even a complete acquittal would not salvage his reputation, which he said has been permanently damaged by the government’s accusations that he cheated by using performance-enhancing drugs to prolong his career.
I wonder what Clemens' total fee for all his lawyers (who clearly earned their keep).
Williams v. Illinois, the latest SCOTUS Confrontation Clause ruling, finally handed down by deeply divided Court
Thanks to the LiveBlogging over at SCOTUSblog, I can report that we are finally getting some criminal justice action from the Justices this morning. To begin, we finally have the long-awaited ruling in Williams v. Illinois, the latest case dealing with the reach of the Sixth Amendment's Confrontation Clause. Here is the early report on the ruling from the SCOTUSblog folks:
Williams v. Illinois, the Confrontation Clause case. The decision is to affirm the Illinois S. Ct. It is a divided decision. Justice Alito's opinion represents four Justices. The form of testimony in this case does not violate the Confrontation Clause....
Alito opinion is joined only by Chief Justice and Justices Kennedy and Breyer. Justice Breyer has a concurring opinion; Justice Thomas concurs in the judgment only.
Justice Kagan dissents, joined by Justices Scalia, Ginsburg, and Sotomayor. So the overall vote is 5-4.
The full opinion is Williams is now available at this link and it runs 98 pages in total. I hope to find the time and energy to read all the opinions and see what we might glean from it all. And (fortunately?), this is the only criminal justice action from the Court today and so we still have a bit more waiting for the sentencing trio still pending.
UPDATE: A (too) quick read of the four opinions in Williams leads me to this simple conclusion: "What a bloody mess!" Though I have long believed that the Confrontation Clause ought to apply to proof offered at sentencing, I am strangely pleased that a sentencing geek like me does not now need to perfectly figure out what the heck is going to happen in this arena with Williams and its aftermath.
Is effort to reform North Carolina's Racial Justice Act a "Test of Racial Justice"?
The question in the title of this post is drawn from the headline of this new editorial from the New York Times. Here are excerpts:
North Carolina’s Legislature is moving shamefully to gut the state’s 2009 Racial Justice Act. The statute is the first in the nation to allow death row inmates to have their sentence reduced to life without parole if they show that the sentence was tainted by racial bias.
Last year, the Legislature passed a bill to repeal the law, but Gov. Bev Perdue wisely vetoed it and the lawmakers failed to override the veto. She needs to show the same steadfastness and veto the new measure, which has already passed the State House and is expected to be approved by the Senate this week.
The bill would not repeal the Racial Justice Act, but would so severely limit the proof an inmate could use to show race bias as to render the law ineffective....
This spring, in the first case challenging a death sentence under the act, Superior Court Judge Gregory Weeks issued a 167-page opinion finding that Marcus Robinson, a death row inmate, was the victim of clear discrimination in jury selection. The judge found “highly reliable” statistical evidence from a study by the Michigan State University College of Law showing racial discrimination in the removal of blacks from juries in all but four of the state’s 100 counties.
Until the death penalty is abolished, as it should be, the Racial Justice Act is a pragmatic way to address the state’s stark history of racial discrimination in its criminal justice system. Governor Perdue must stop the latest effort to undo the law.
I must take issue with this editorial's assertion that NC's Racial Justice Act is a "pragmatic" way to do much of anything other than to provide an apparently effective means to achieve a nearly de facto retroactive repeal of the state's death penalty. The NC RJA only applies in capital cases and it might be interpreted as now written to require reversal of every death sentence imposed in the state over the last 30 years. Thus, the NC RJA does not really address "the state’s stark history of racial discrimination in its criminal justice system" except for the very worst murderers sentenced to death, and it appears that all of those murderers could get relief from this Act.
It is certainly possible that the voters of North Carolina truly want every state death sentence nullified because of extant statistical evidence that race may have played a role in many (most? all?) capital case jury selection proceedings. If so, there should be political support for the current version of the NC RJA and public opposition to any proposed reform. But it is also possible that voters do not now support those provisions of the RJA which may functionally serve to repeal the state's death penalty. If so, then the on-going work by the NC legislature would appear to be a proper expression of representative democracy.
A few older and more recent posts on NC Racial Justice Act:
- NC Gov signs new racial justice act concerning capital prosecutions
- Will NC's new Racial Justice Act effectively kill the state's death penalty?
- New research suggests race of victim impacts NC death penalty administration
- NC defender officer urging that racial bias claims be brought in every capital case
- NC prosecutors bring complaints about state's Racial Justice Act to court
- State judge refuses to overturn Racial Justice Act in North Carolina
- Talk of profound changes to North Carolina's potent Racial Justice Act
- North Carolina DAs urge state legislature to repeal Racial Justice Act
- Veto debate follows NC legislature's vote to repeal state's capital Racial Justice Act
- NC Governor vetoes bill to repeal state's Racial Justice Act
- North Carolina legislature creates committee to study state's Racial Justice Act while considering veto override
- NC death row defendant prevails in first case decided under state's Racial Justice Act
- Reviewing the uncertain state of capital justice in the state of North Carolina
- NY Times editorial on "Race and Death Penalty Juries"
- North Carolina legislature trying again to cut back on state's consequential Racial Justice Act
June 17, 2012
Kansas prisoners still serving long terms based on now-reformed "old" sentencing laws
This interesting new article from the Wichita Eagle reports on how and why hundreds of offender sentenced before Kansas sentencing reform two decades ago are still serving prison terms that would have been much shorter under the reformed law. This piece is headlined "Hundreds of ‘old law’ Kansas inmates serving longer sentences," and it begins this way:
Rick Redford will go before the Kansas Prisoner Review Board this month after serving more than 27 years in prison. Had he been sentenced under today’s laws, he probably would have been released years ago. “Here I am doing 27 years just to see the parole board,” Redford said in a telephone interview from the Norton Correctional Facility. “Had I been convicted in 1993, I would have been out in 2005 without even seeing a parole board.”
Redford, whose most serious conviction was for aggravated kidnapping, is one of hundreds of Kansas prison inmates serving sentences for crimes committed before July 1, 1993, the day the Kansas Sentencing Guidelines took effect. Many of these “old law” inmates are serving sentences that would have been much shorter under today’s law.
“I’m on my 26th year right now,” said Sherman Wright, who figures he would have been released after 15 years had he been sentenced under the guidelines as they became law in 1993. Instead he’s serving a 69-year-to-life sentence on burglary and aggravated robbery convictions that will keep him in prison at least until 2024.
Wright’s sister, Cynthia Crawford, said her brother’s crimes were relatively minor compared with those committed by some of his fellow inmates. “He never used any kind of a weapon; he never hurt anybody,” she said. “I don’t understand how they can let him sit in there and rot like that when people keep going in for killing or raping kids and getting right back out. I know that hurts him to see people come and go, come and go, for crimes that were way past his.”
The 1992 Sentencing Guidelines Act, which was designed to eliminate racial and geographical disparities in sentencing, established a sentencing system based on the type of crime committed and the defendant’s previous criminal history. The guidelines generally called for shorter sentences for property crimes and longer ones for crimes of violence.
The Kansas Legislature decided to apply the guidelines retroactively to more than 2,000 inmates who were serving time for relatively minor offenses. But more than 4,000 inmates convicted of more serious crimes were left to serve out their original sentences. Many of those inmates had more than one conviction and were serving multiple sentences consecutively. Some who had prior convictions saw their sentences doubled or even tripled under what was known as the Habitual Criminal Act.
The sentencing guidelines law in effect created two classes of prison inmates, but the Kansas Supreme Court ruled in 1994 that it did not violate any inmate’s right to equal protection of the law, guaranteed by the 14th Amendment. Today, about 400 of those “old law” inmates remain behind bars.
"Valuable" cooperation gets con man's sentence recommendation reduced from LWOP to 5+ years
Federal sentencing practioners know that defendants involved in very serious federal crimes, even those with very long and very serious criminal histories, can escape very long prison terms by making nice with the government and helping the feds go after others. The latest notable example of this reality is reported in this new Chicago Tribune article, which is headlined "Prosecutors: Levine among 'most valuable' witnesses in 3 decades." Here are the details:
Prosecutors called their key witness against former Gov. Rod Blagojevich and two top advisers "one of the most valuable cooperators" in three decades of public-corruption prosecutions in a late-Friday filing arguing for a light sentence.
Stuart Levine could have faced life in prison under federal sentencing guidelines but prosecutors agreed to recommend a sentence of 5 years and 7 months in exchange for Levine's cooperation. Friday's filing comes after U.S. District Judge Amy St. Eve, during a hearing in April, asked for a "lengthy recitation of Levine's cooperation."...
"The government not only used information provided initially by Levine in the case against Blagojevich, it was Levine's decision to cooperate that set in motion the series of events that led directly to the government obtaining the evidence and witnesses it needed to prosecute Blagojevich," prosecutors wrote.Friday's filing, in advance of Levine's June 28 sentencing, recognizes both Levine's cooperation and his extensive criminal history.
More background on the man getting this (justified?) sentencing break from federal prosecutors comes from this local article from a few month ago headlined "How Stuart Levine — a thief and con man — became star witness." Here is a snippet from that article:
On a recent day in federal court, a quiet settled over the courtroom as Stuart Levine answered questions about his past. It wasn’t just the drug-binge parties and snorting 10 lines of animal tranquilizer mixed with crystal meth at the Purple Hotel that stunned the courtroom. It was an interminable list of scams that one man was able to pull off for decades.
Did he steal $6 million from one charity, keep half and never pay it back? “Yes,” he said plainly. Levine, wearing an ill-fitting suit and glasses, was asked if he rewarded a dying friend who entrusted him with his estate by stealing $2 million from the dead man’s children. “Yes,” he said.
He’d answer “yes” to handing out bribes to politicians, to school board members, to a postal union worker and to using his position on state boards to work kickback deals amounting to millions of dollars. Levine even admitted that once the FBI caught him and he swore to tell the truth, he initially lied about Vrdolyak. Was that because, even while under FBI scrutiny, he still wanted to secretly take part in a $1.5 million kickback scheme with Vrdolyak? Levine answered predictably: “Yes.”
June 17, 2012 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack
"As Escapees Stream Out, a Penal Business Thrives"
The title of this post is the headline of this notable front-page New York Times article, which is the first of a three-part series of articles concerning New Jersey’s system of large halfway houses. Here is how the very-lengthy first piece gets started:
After serving more than a year behind bars in New Jersey for assaulting a former girlfriend, David Goodell was transferred in 2010 to a sprawling halfway house in Newark. One night, Mr. Goodell escaped, but no one in authority paid much notice. He headed straight for the suburbs, for another young woman who had spurned him, and he killed her, the police said.
The state sent Rafael Miranda, incarcerated on drug and weapons charges, to a similar halfway house, and he also escaped. He was finally arrested in 2010 after four months at large, when, prosecutors said, he shot a man dead on a Newark sidewalk — just three miles from his halfway house.
Valeria Parziale had 15 aliases and a history of drugs and burglary. Nine days after she slipped out of a halfway house in Trenton in 2009, Ms. Parziale, using a folding knife, nearly severed a man’s ear in a liquor store. She was arrested and charged with assault but not escape. Prosecutors say they had no idea she was a fugitive.
After decades of tough criminal justice policies, states have been grappling with crowded prisons that are straining budgets. In response to those pressures, New Jersey has become a leader in a national movement to save money by diverting inmates to a new kind of privately run halfway house.
At the heart of the system is a company with deep connections to politicians of both parties, most notably Gov. Chris Christie. Many of these halfway houses are as big as prisons, with several hundred beds, and bear little resemblance to the neighborhood halfway houses of the past, where small groups of low-level offenders were sent to straighten up.
New Jersey officials have called these large facilities an innovative example of privatization and have promoted the approach all the way to the Obama White House. Yet with little oversight, the state’s halfway houses have mutated into a shadow corrections network, where drugs, gang activity and violence, including sexual assaults, often go unchecked, according to a 10-month investigation by The New York Times.
Perhaps the most unsettling sign of the chaos within is inmates’ ease in getting out. Since 2005, roughly 5,100 inmates have escaped from the state’s privately run halfway houses, including at least 1,300 in the 29 months since Governor Christie took office, according to an analysis by The Times. Some inmates left through the back, side or emergency doors of halfway houses, or through smoking areas, state records show. Others placed dummies in their beds as decoys, or fled while being returned to prison for violating halfway houses’ rules. Many had permission to go on work-release programs but then did not return.
While these halfway houses often resemble traditional correctional institutions, they have much less security. There are no correction officers, and workers are not allowed to restrain inmates who try to leave or to locate those who do not come back from work release, the most common form of escape. The halfway houses’ only recourse is to alert the authorities. And so the inmates flee in a steady stream: 46 last September, 39 in October, 40 in November, 38 in December, state records show.
“The system is a mess,” said Thaddeus B. Caldwell, who spent four years tracking down halfway house escapees in New Jersey as a senior corrections investigator. “No matter how many escaped, no matter how many were caught, no matter how many committed heinous acts while they were on the run, they still kept releasing more guys into the halfway houses, and it kept happening over and over again.” By contrast, the state’s prisons had three escapes in 2010 and none in the first nine months of 2011, the last period for which the state gave figures.
UPDATE: The second piece in this series is headlined "At a Halfway House, Bedlam Reigns," and is now available at this link.