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July 7, 2012

"Numbers Tell of Failure in Drug War"

The title of this post is the headline of this recent New York Times piece. Here are excerpts:

When policy makers in Washington worry about Mexico these days, they think in terms of a handful of numbers: Mexico’s 19,500 hectares devoted to poppy cultivation for heroin; its 17,500 hectares growing cannabis; the 95 percent of American cocaine imports brought by Mexican cartels through Mexico and Central America.

They are thinking about the wrong numbers.  If there is one number that embodies the seemingly intractable challenge imposed by the illegal drug trade on the relationship between the United States and Mexico, it is $177.26.  That is the retail price, according to Drug Enforcement Administration data, of one gram of pure cocaine from your typical local pusher. That is 74 percent cheaper than it was 30 years ago.

This number contains pretty much all you need to evaluate the Mexican and American governments’ “war” to eradicate illegal drugs from the streets of the United States.  They would do well to heed its message.  What it says is that the struggle on which they have spent billions of dollars and lost tens of thousands of lives over the last four decades has failed....

[C]onceived to eradicate the illegal drug market, the war on drugs cannot be won. Once they understand this, the Mexican and American governments may consider refocusing their strategies to take aim at what really matters: the health and security of their citizens, communities and nations....

The only dimension along which the war on drugs might be conceived as a success is political. If you ask Americans how concerned they are about drugs, they will give you roughly the same answer they have given for years: not so much.

In a Gallup poll, only 31 percent of Americans said they thought the government was making much progress dealing with illegal drugs, the lowest share since 1997.  But fewer people say they worry about drug abuse than 10 years ago.  Only 29 percent of Americans think it is an extremely or very serious problem where they live, the lowest share in the last decade.

But the government has spent $20 billion to $25 billion a year on counternarcotics efforts over the last decade.  That is a pretty high price tag for political cover, to stop drugs from becoming a prominent issue on voters’ radar screen.  It becomes unacceptably high if you add in the real costs of the drug wars.  That includes more than 55,000 Mexicans and tens of thousands of Central Americans killed by drug-fueled violence since Mexico’s departing president, Felipe Calderón, declared war six years ago against the traffickers ferrying drugs across the border.

And the domestic costs are enormous, too.  Almost one in five inmates in state prisons and half of those in federal prisons are serving time for drug offenses. In 2010, 1.64 million people were arrested for drug violations.  Four out of five arrests were for possession.  Nearly half were for possession of often-tiny amounts of marijuana....

Jeffrey Miron, an economist at Harvard who studies drug policy closely, has suggested that legalizing all illicit drugs would produce net benefits to the United States of some $65 billion a year, mostly by cutting public spending on enforcement as well as through reduced crime and corruption.

A study by analysts at the RAND Corporation, a California research organization, suggested that if marijuana were legalized in California and the drug spilled from there to other states, Mexican drug cartels would lose about a fifth of their annual income of some $6.5 billion from illegal exports to the United States....

Legalization may carry risks, too.  Peter H. Reuter, one of the authors of the RAND study, who is now a professor of public policy in the department of criminology of the University of Maryland, said he worried that legalizing drugs would vastly expand drug abuse, leading to other potential social and health costs.  Supporters of the war on drugs insist that without it, consumption would have soared to the heights of the 1980s and perhaps beyond.

There are other options.  The Global Commission on Drug Policy, whose membership includes former presidents of Mexico, Colombia, Chile, Brazil and Poland, has called on national governments to “depenalize” if not necessarily legalize drug possession and sales....

A war on drugs whose objective is to eradicate the drug market — to stop drugs from arriving in the United States and stop Americans from swallowing, smoking, inhaling or injecting them — is a war that cannot be won. What we care about is the harm that drugs, drug trafficking and drug policy do to individuals, society and even national security. Reducing this harm is a goal worth fighting for.

July 7, 2012 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (33) | TrackBack

Documenting the extremes of stacked federal gun mandatory sentences

This recent Reuters article, headlined "Florida man sees 'cruel' face of U.S. justice," details an extreme (but not all that uncommon) federal sentencing story resulting from stacked mandatory gun minimums. Here is how it starts:

Quartavious Davis is still shocked by what happened to him in federal court two months ago.  "My first offense, and they gave me all this time," said Davis, a pudgy African American with dreadlocks who spoke with Reuters at the Federal Detention Center in Miami.  "Might just as well say I'm dead."

Davis was convicted of participating in a string of armed robberies in the Miami area in 2010.  His accomplices testified against him, saying he carried a gun during their crimes and discharged it at a dog that chased them after one of their burglaries.  But Davis was not convicted of hurting anyone physically, including the dog.

Davis would occupy no place at all in the annals of crime if not for his sentence.  Now 20 years old, he was sentenced to 1,941 months -- almost 162 years -- in prison without the possibility of parole.

On the day of Davis's interview with Reuters, the U.S. Supreme Court decided that life sentences without parole for defendants under the age of 18 constituted "cruel and unusual punishment" even in cases of murder.  Unfortunately for Davis, he was 18 at the time of his crimes.

Nonetheless, Davis's attorney will argue that Davis's sentence to die in prison also constitutes "cruel and unusual punishment" on the grounds that Davis is a "first offender," having never before been charged with a crime.

"Just as the Supreme Court recently held that the Constitution bars taking away all discretion from judges in sentencing juveniles to life imprisonment for committing murder," said the attorney, Jacqueline Shapiro, "so also is it cruel and extreme to allow unfettered prosecutorial discretion to force a sentencing judge to impose a life sentence on a teenage first offender convicted of lesser charges."

Davis's unusually long sentence results from a controversial practice known as "stacking," in which each count of an indictment is counted as a separate crime, thus transforming a first-time defendant into a "habitual criminal" subject to multiple sentences and mandatory sentencing guidelines.

"Any law that provides for a mandatory term of imprisonment for a 19-year-old first offender that exceeds a century has got to be unconstitutional," said Michael Zelman, the court-appointed attorney who represented Davis at his trial.  Zelman resigned from Davis's case after filing a notice of appeal.  If Davis's new lawyer, Shapiro, has her way, the Supreme Court may ultimately decide the issue.  The case will be appealed first to the Eleventh Circuit Court of Appeals in Atlanta.

Until then, Davis's story will be a prominent case in point for both sides in an increasingly heated debate, pitting those who would protect society from the prospective dangers posed by serial criminals against those who see the United States -- whose overcrowded prisons house fully one-quarter of all the prisoners in the world, most of them black -- as a bastion of injustice.

July 7, 2012 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (38) | TrackBack

New report in Minnesota documents success of drug court model

This local editorial, headlined "Drug courts are proving their value," discusses a new state study providing additional support for the use of drug courts. Here are excerpts:

Drug courts work. For years, Judge Robert Rancourt of Chisago County, a leader in the National Association of Drug Court Professionals, has come to the State Capitol with that message about the specialized courts that offer willing nonviolent drug offenders an alternative to prison. For years, skeptical legislators have asked him to produce Minnesota-specific numbers to prove his point.

Now he can. The results of a two-and-a-half-year study are in. They confirm what Rancourt and his drug court judicial counterparts have been saying: Intensive, treatment-centered drug court programs are more likely than are traditional correctional measures to improve lives marred by illicit drug use -- and they save taxpayers money to boot.

That's welcome and timely news. It runs counter to skepticism about government's ability to respond effectively to social problems. It speaks to the worth of a judicial branch that has come in for more than its share of politically motivated deprecation of late.

And it arms that branch with the best lobbying weapon -- hard data -- with which to fend off funding cuts when the next state budget squeeze comes. That's likely to be as soon as next year. (The report itself illustrates what tight money has meant for Minnesota's judiciary. It explains that it lacks a thorough cost-benefit analysis because the funding that would have made that possible was cut by the Legislature.)

The report compared the experiences of 535 drug court offenders with 644 offenders with similar profiles who did not opt for the drug court's regimen of treatment, intensive supervision, incentives for good behavior and sanctions for reoffending. Among the findings: ... [years later] 26 percent of the drug court cohort had been charged with a new offense, compared with 41 percent in the comparison group.... [And] drug court participants show gains in employment, educational achievement, home rental or ownership, and payment of child support over the run of the program....

Fifteen years after their Minnesota debut, drug courts are both a work in progress and a work producing progress.

The full 157-page detailed report is available at this link.

July 7, 2012 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

July 6, 2012

"Time to deal on life sentences for kids"

The title of this post is the headline of this notable new commentary now up at CNN authored by Jeanne Bishop and Mark Osler. Here are excerpts:

The Supreme Court has now [found LWOP for juvenile murderers unconstitutional], at least in cases where the sentence of life without parole was mandatory.  (About 80% of the 2,500 inmates who are serving life sentences for crimes committed when they were juveniles were sentenced under mandatory sentencing systems, according to the National Conference of State Legislatures.)  Now the question is what an alternative to juvenile life without parole should look like, particularly in states without adult parole or with restricted adult parole.

It's tricky, emotional terrain, but we must now go there.  And it will not be easy.  Too often, the discussion surrounding the issue has been strident.  Victims' groups, such as the National Organization of Victims of Juvenile Lifers, have depicted some advocates for juveniles as callous to the trauma of victims.  Some opponents of juvenile life sentences, such as Mary Ellen Johnson of the Pendulum Foundation, have characterized life without parole as pure retribution.

Neither side has made much effort to find a middle ground between justice and mercy.  We need a new model, one that provides a meaningful opportunity for juveniles who have served an appropriate amount of time for taking a human life to seek release, while at the same time weighing public safety and ensuring that the voices of victims' families are sought out and heard.

And now that the Supreme Court has forced our hand, we call on those who have opposed one another to come together and talk.  The important questions are not the ones behind us, but the ones in front: Who gets to decide on releasing these convicts, and when?

What notification and resources, if any, should be provided to victims' family members whose loved ones were murdered by a juvenile?  How often and under what conditions should a murderer who was a juvenile at the time of his crime be able to seek release?

What should inform the decision of whether to release him?

The range of factors in making such a decision is vast: It could include observations about the juvenile made by guards and social workers in correctional facilities who come into contact with him every day; input from childhood teachers, neighbors and family members; psychological and medical information; anything that would shed light on future dangerousness.

We need at the table experts in child psychology and brain development, prison staff, counselors, academics, murder victims' family members -- all important voices that have too often been left out of the process.

Other reforms should include eliminating mandatory transfers of defendants from juvenile to adult courts and shifting funds from incarceration to crime prevention programs and victims' services.

As the Supreme Court's decision reflected, juvenile life without parole strikes to the core of key definitional issues for our society: the meaning of childhood, the role of rehabilitation and redemption in criminal law, and the searing pain caused by senseless murders.

These issues have been important enough to divide us; now that the Supreme Court has ruled, they should unite us.

Related recent posts on Miller:

July 6, 2012 in Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10) | TrackBack

Federal sentencing data junkies rejoice: USSC creates new "Research and Statistics Page"

DC fireworksA helpful reader reminded me that I had not yet spotlighted with the justified fanfare and blog firework that the US Sentencing Commission has just rolled out this awesome new page on its website, which is excitingly titled the "Research and Statistics Page."  Here is how the USSC explains the new website offering: "This page contains content from the Commission's former Research and Data and Statistics pages. It also features new content, including the Commission's annual individual offender datafiles and prison and sentencing impact assessments."

Helpfully, the reader who made sure I posting these USSC developments, also sent me this terrific and insightful account of why the "prison and sentencing impact assessments" (which appear on this new special webpage) merit significant attention:

The Commission finally is publishing prison impact assessments.  While it only has the assessments for this amendment cycle, hopefully it will publish retroactively (and should be encouraged to do so).

Such data are very useful, if for nothing else than to get some idea of the real-world effects amendments to the FSGs have.  If data show very little impact, then not a lot of fuss should be given to them (and frankly, we should wonder why such amendments even would be necessary).  In contrast, those amendments with a projected significant impact should be more thoroughly vetted/reviewed/criticized, and the actual prison effects should be followed (most especially where there is a net impact on prisons, i.e., more beds needed).  And, of course, when a politically unpopular amendment is under consideration, if it also lowers the number of beds to be utilizied, then the cost-savings can make an otherwise bitter pill easier to swallow.

BTW, from what I understand, the model used to do these assessments goes all the way back to the late 80s and hasn’t been update since (nor an empirical assessment of how well the model predicts the impact).  So, with such data available now, this additional area of study is available.

I agree completely with these sentiments, and I will add that another exciting aspect of the USSC's new data page is an icon which indicates that the Commission is developing an "Interactive Sourcebook."  I am hopeful and cautiously optimistic that such a resource can and will make it much easier for both academics and practitioners to get quick and helpful federal sentencing data on an array of intricate subtopics.

Kudos to everyone at the USSC for getting this new data page up and running and also (in advance) to any and everyone else who helps me identify the latest and greatest data to mine from the page.

UPDATE:  A different helpful reader has told me that the penultimate sentence in the quoted e-mail above contains misinformation and that the USSC's prison impact model is, in fact, regularly updated. Troublesomely, I cannot effectively assess who has the story right about this "insider" debate over the USSC data. But I can say that even questionable data is better than no data, so I just care that the USSC has made this data available no matter its precision.

July 6, 2012 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

A decade after the crime, high-profile capital case finally gets to California Supreme Court

This AP article reports that "Scott Peterson on Thursday filed the automatic appeal of his 2004 death sentence to the California Supreme Court, maintaining as he always has that he had nothing to do with the murders of his wife Laci and unborn son Connor."  I find this story notable not only because the Peterson case was very high-profile at the time of the crime and trial (long ago), but also because it spotlights various dysfunctional realities of capital appeals.  Here are some particulars:

Peterson's attorney, noted death penalty lawyer Cliff Gardner, filed the 423-page document eight years after a San Mateo County jury found the former fertilizer salesman guilty of suffocating a Laci and dumping her in the San Francisco Bay on Christmas Eve 2002....

Peterson has always maintained his innocence and his appeal to the Supreme Court is no different.  Gardner claims that the overwhelming publicity Peterson's trial received, incorrect evidentiary rulings and other mistakes deprived him of a fair trial.  Peterson was convicted in 2004 after a trial that his attorney argues surpassed the O.J. Simpson murder trial in terms of publicity....

Gardner argues that the intense publicity the case generated almost from the moment Laci disappeared deprived Peterson of a fair trial.  The trial was ordered moved from Stanislaus County of the Petersons' home, to San Mateo County.  Gardner argued that the trial should have been moved yet again because of the crush of publicity in San Mateo County....

Beyond issues with the publicity, Gardner argues the judge made several erroneous evidentiary decisions and other rulings that led to Peterson receiving an unfair trial. Gardner complains the judge automatically excluded prospective jurors who said they opposed the death penalty.  Gardner argued that those jurors should have been questioned more about whether they could still decide the case fairly....

The thick legal brief delves into numerous other issues alleging incorrect rulings, juror misconduct and other errors.

All death penalty cases are appealed to the California Supreme Court, which is struggling to keep up with the pace of cases.  There are 725 inmates on Death Row and no prisoner has been executed in California since January 2006. Lawsuits in federal and state courts have temporarily halted executions.  The appeal is expected to take months, if not years, to be resolved.

This story arguably highlights everything that can be viewed as broken and wrong with US capital criminal justice, whether one's concern is potential wrongful convictions, or undue media sensationalism of crimes and trials, or the slow pace of capital appeals, or the tendency (and necessity) of capital defendants to allege all kinds of errors in a massive brief (which is longer in this case (with 423 pages) than the original Harry Potter volume), or the fact that California's death penalty now truly exists only in theory in courtrooms, not in reality in the state's (new and unused) execution chamber. 

The fact that this case took nearly a decade to just get to the very first brief being filed in the California Supreme Court suggests to it could be another decade or two before all of Peterson's appeals are exhausted even if he fails to win on any appeal issue in any court.  If he gets some kind of reversal at some stage in the appellate process, then his appeals are likely to outlive him so that his death sentence turns into a functional life sentencing (as has ultimately proven to be the case with all but a dozen of the roughly 1000 California murderers whom have been sentenced to die in the state over the last few decades).

July 6, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23) | TrackBack

July 5, 2012

NY Times editorial on Miller puts Gideon cart before the Teague horse

I continue to be intrigued that so many commentators seem so quick to assume that all the juvenile murderers sentenced to mandatory LWOP long ago will be sure to get resentenced as a result of the Supreme Court's Miller ruling.  A high-profile example of commentary that appears to make this (harmful?) assumption comes from this New York Times editorial, which is headlined "A Moral Right to Counsel."   Here is the editorial in full, with commentary to follow:

About 2,000 juvenile offenders serving life sentences without parole can now seek new sentencing hearings to challenge their punishment.  The Supreme Court ruled last week that it is unconstitutional to impose such a sentence on a juvenile convicted of murder without an individualized finding that considers the defendant’s characteristics and the details of the crime.

But without capable lawyers to handle the hearings, the court’s humane ruling is unlikely to matter for those serving a mandatory life sentence received as a juvenile.

The constitutional right to counsel in criminal trials does not apply to these sentencing reviews because the offenders have already been convicted.  But they can’t initiate a review if they cannot afford a lawyer.  That’s why the federal government and the 28 states affected need to provide them with lawyers as a moral right.

And not just any lawyer.  The court said juveniles have a less developed sense of responsibility and should not necessarily get the same punishment as adults.  The hearings will require lawyers with training in psychology and human development to argue convincingly that an offender’s record supports reducing a life sentence — including what Justice Elena Kagan, in her majority opinion, called a juvenile offender’s “immaturity, recklessness, and impetuosity” at the time of the crime.

In addition, states must provide funds for expert witnesses to help the lawyers do their job, as is now required in the sentencing phase of death penalty cases, where mitigating factors are weighed.

Almost one-quarter of those serving mandatory life sentences have been in prison for 21 years or longer.  For them, Justice Kagan said, a state must provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”

In many cases, the offender’s young age and a history of being abused, for example, were so striking that judges said during sentencing that they were imposing mandatory life without parole because they had no choice.  States should ensure that these offenders receive new hearings and the assistance of effective counsel.

There are so many assertions in this editorial that are flat-out wrong or deeply misguided, I am not sure where to start.  To begin, as my post headline and introduction highlights, this editorial seems to assume that all long-ago sentenced juve murderers will get the benefit of the new procedural rule of Miller.  But, as I stressed in my very first Miller aftermath post here, states can (and will?) argue that Miller is inapplicable to final juve LWOP sentences imposed long ago because it is a new rule of criminal procedure that should not apply retroactively under Teague.

This editorial also seems misguided when it asserts that the Sixth Amendment right to counsel "does not apply to these sentencing reviews because the offenders have already been convicted."  It is true that there is no constitutional right to counsel for a habeas petition, but if/when a defendant were to secure a true, full trial court "resentencing" after Miller through a successful habeas petition, the Sixth Amendment right to counsel arguably would apply just as it does at an initial sentencing.  (Indigent federal defendants often get their sentences reversed on direct appeal in the federal system and I have never seen a claim that they lack a right to counsel at a true, full trial court "resentencing".)

This editorial also seems misguided when it asserts that mandatory LWOP sentenced defendants "can’t initiate a review if they cannot afford a lawyer."  These defendant surely can (and should) initiate a habeas petition pro se; a lawyer is not absolutely necessary here (or ever) to bring a habeas petition.  Though it is surely true that a high-quality lawyer will likely be better able to develop a stronger habeas claim (and make stronger points at any full resentencing), it is certainly not true that review cannot be initiated without a lawyer.

This editorial also seems misguided when it suggests that the mandatory LWOP sentenced defendants who have already "been in prison 21 years" or longer now must be given "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation."  In fact, even if these long-serving LWOPers get the benefit of Miller's new rule, they still can be constitutionally resentenced to LWOP and thus can still be sentenced to die in prison as long as that decision is made individually by a judge or jury bases on the specific case facts.

Last but certainly not least, this editorial also seems misguided when it suggests governments have a "moral" obligation to providing enough funding so that these juve murderers now get the best lawyers to help them argue for a second bite at the sentencing apple.  I think it would be very appropriate and valuable if the NY Times had asserted that all the highly (over?)paid corporate lawyers in NYC have a moral obligation to provide pro bono assistance to the roughly 2000 juvenile defendants who might be able to benefit from Miller.  (I suspect there are well over 2000 lawyers in NYC alone making a seven-figure salary, so a real pro-bono commitment for major law firms should mean every one of the juve defendants potential impacted by Miller could have a million-dollar lawyer.)

But with states now strapped to find taxpayer resources to help hungry kids and sick old people and so many other innocent persons struggling in this down economy, I find disconcerting the notion that there is moral obligation on states to take money away from other urgent priorities in order to (excessively) fund lawyers to help get these juve murderers another bite at the sentencing apple.  (Of course, I would be happy to bill in full for all my lawyering time to help out these defendants if and when any state steps up to the plate with a big pile of funding for lawyers as the New York Times says they should.)

July 5, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (22) | TrackBack

U.N. Secretary-General calls for worldwide abolition of capital punishment

As reported in this AP article, "U.N. Secretary-General Ban Ki-Moon has called for the death penalty to be abolished."  Here is more:

Ban told a panel on the issue convened Tuesday by the U.N. High Commissioner for Human Rights: "The taking of life is too absolute, too irreversible, for one human being to inflict on another, even when backed by legal process."

Since the General Assembly endorsed a call for a death penalty moratorium in 2007, several nations have abolished the death penalty, including Argentina, Burundi, Gabon, Latvia, Togo and Uzbekistan.  The U.N. says 150 nations have either abolished the death penalty or do not practice it.

Ban said he was especially concerned that the death penalty is still used for juvenile offenders, and 32 nations use it for drug-related offenses.

For a host of reasons, I do not expect US officials to echo this UN call for worldwide abolition of the death penalty.  But I could imagine the US agreeing to a UN resolution which says the death penalty should be reserved for only the very worst crimes such a intentional murder, treason and acts of terrorism.  I wonder if both opponents and supporters of the death penalty inside the US would be willing and even eager to have the US serve as a potent international advocate for limiting the use of the death penalty in this way worldwide.

July 5, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (34) | TrackBack

"Exonerations in the United States, 1989–2012"

The title of this post is the title of this notable new paper by Samuel Gross and Michael Shaffer now up at SSRN.  Here is the abstract:

This study presents and analyzes data on the first 873 exonerations reported by the National Registry of Exonerations, exonerationsregistry.org, a new project of the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law.  The Registry assembles and posts information on exonerations of people who were convicted of serious crimes in the United States.

The database, which includes exonerations from January 1989 through February 2012, is larger and more diverse than any comparable collection.  Over 60% of the cases did not involve DNA evidence.  Earlier datasets were limited almost entirely to rape and murder cases, but more than 150 of these exonerations were for convictions that did not involve homicide or sexual assault, and more than 100 of the sexual assault exonerations were from child sex abuse convictions.

The study also describes over 1100 additional 'group exonerations' that occurred in the aftermath of 12 scandals around the country in which police officers systematically planted or fabricated evidence to frame defendants for non-existent crimes, usually drug crimes.

The major findings of the study include:

(1) The composition and distribution of the exonerations we know about lead to the inescapable conclusion that they are a small fraction of all false convictions for serious felonies.  (Exonerations for lesser felonies and misdemeanors are almost entirely absent from the data.)  The known cases also strongly suggest that most exonerations escape notice as well.

(2) The causes of false convictions vary greatly by crime.  For homicides, which account for nearly half of all exonerations in the study, the leading cause of error was perjury and other false accusations -- usually deliberate false identification of the defendant as the criminal.  Homicide exonerations also include a high rate of official misconduct and three-quarters of all false confessions in the study.  For adult sexual assault cases, and for the much smaller number of robbery exonerations, the leading cause of error was mistaken witness identifications.  Sexual assault exonerations also include a large number of cases with false or misleading forensic evidence.  Most child sex abuse exonerations, by contrast, were based on fabricated crimes: the defendants were accused and convicted of crimes that never occurred.

Judging from these data, the conviction of innocent defendants is not a single problem but several distinct problems, depending on the nature of the underlying crime.

Recent related post:

July 5, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

July 4, 2012

Judge down under laments mandatory 20 years (with parole) for brutal contract killer

The debates on this blog over the Supreme Court's recent work in Miller finding unconstitutional a mandatory LWOP sentence for a juvenile killer (see comments to posts here and here) have been robust and at times (over)heated.  With the Miller case and controversy fresh in mind, I found this new local story from Australia quite interesting and comparatively telling.  The story is headlined "Judge slams mandatory sentencing laws as 'unjust'," and here are excerpts:

A Supreme Court judge has criticised the Northern Territory sentencing regime as "unjust and unfair".  Justice Dean Mildren made the comment after sentencing Darren Jason Halfpenny to 20 years in jail for the contract killing of a man in Katherine.

Justice Mildren said he was required to impose a minimum 20 year prison term because of the mandatory sentencing regime in the Territory.   "It is unjust and unfair, and contrary to the public interest, that prisoners who plead guilty ... and are remorseful ... are left in a situation where their earlier release is left in the hands of the executive (government)," he said.

Russell Golflam of the Criminal Lawyers Association of the Northern Territory agrees. "Mandatory sentencing is, in principle, obnoxious," he said.  Mr Golflam says judges should be given the power to do the job that they're paid to do; impose appropriate penalties according to the circumstances of the case.  "Parliament and governments should not take that job away from judges," he said. He is calling for the Sentencing Act to be amended.

Justice Mildren recommended that Halfpenny be released on parole after 14 years because he will testify against his co-accused in the murder....

During the trial, the court heard Darren Halfpenny and two friends, Christopher Malyschko and Zac Grieve, donned shower caps and gloves before entering the Katherine house where Ray Niceforo lived.  The court was told Mr Niceforo, 41, was struck in the head with a blunt object seven times, then had a rope tied around his neck.

His body was wrapped in a tarpaulin and put into a van before being dumped in bushland. The body was found the following day and an autopsy found Mr Niceforo died from a blunt force head injury or asphyxiation.

Halfpenny was questioned by police a few days later and confessed.  He later agreed to testify against his co-accused, Malyschko and Grieve, who have been charged with murder.

The court was told the three men carried out the killing for a payment of $5,000 each. Crown prosecutor Jack Karzevski, QC, said the contract killing was commissioned by Bronwyn Buttery, the ex-partner of Mr Niceforo, who has also been charged with murder.

So, let's do a little compare/contrast concerning judicial sentencing attitudes in the land down under and in the land of the free: 

--- in Australia, a sentencing judge is bemoaning as "unjust and unfair" a legislative requirement to impose a 20-year prison term with parole on an adult who intentionally committed a brutal contract murder.  This kind of homicide in the US would clearly qualify as first-degree murder in just about every US state and in most would make the defendant eligible for the death penalty.  The defendant's decision to plead guilty and cooperate would likely prompt most US prosecutors to take the death penalty off the table but likely still would make a (perhaps mandatory) LWOP sentence still possible (even probably) for the premeditated and henious crime.

--- in the United States, four Justices of our Supreme Court in Miller have bemoaned the majority's ruling that the US Constitutional prohibits a legislative requirement to impos a life prison term without parole on a 14-year-old who unexpectedly had a role in the another's lethal shooting of a store clerk during an intentional robbery.  This kind of homicide in Australia, I suspect based on this somewhat dated report on homicide sentencing patterns, would likely result in the offender getting a prison sentence of just over 10 years with the possibility of parole a few years soon.

For a host of reasons, I am strongly disinclined to assert that Australia's sentencing approach to murder offenses is to preferred to the US system, and that kind of claim is not the point of this post.  Rather, my goal here is just to highlight (especially on July 4th, the day we most celebrate America as the land of the free and the home of the brave) the reality that a judge in Australia is quick to lament having to impose a 20-year prison term with parole on a brutal adult contract killer, while in Miller we see four Justices being quick to lament our Constitution being interpretted to giving a 14-year-old convicted of felony murder just the chance to seek a sentence less than life prison term without parole.

July 4, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentencing around the world, Who Sentences? | Permalink | Comments (25) | TrackBack

July 3, 2012

Guest post on Miller from another thoughtful victim of a teenage killer

A few days ago, I posted here the reaction of Jennifer Bishop Jenkins, the President of the National Organization of Victims of Juvenile Lifers (NOVJL), to the Supreme Court's opinion in Miller. Today I received an email from Dr. Linda White proposing another guest post which, in her words, "provides a different opinion from the victims community on juvenile life-without-parole sentencing."  Here is her commentary, posted in full form:

On June 25, the Supreme Court ruled in Miller v. Alabama and Jackson v. Hobbs that it is cruel and unusual to impose mandatory life-without-parole sentences on children.  As a mother whose daughter was murdered by two teenage boys, I speak for many victims’ family members who support the Court’s sound decision.

I certainly never imagined that I would become a passionate advocate against life imprisonment without parole for juvenile offenders. I had never confronted the issue until November 18, 1986, the day my world was forever changed when my 26-year-old daughter Cathy, then pregnant with her second child, was killed by two teenage boys.

This tragedy set me on an unlikely path that led me to discover that even youths who commit the worst crimes have the capacity to grow into mature, redeemed adults.  I know this because I watched my daughter’s killer, Gary, become such an adult.

I spent the years following Cathy’s death studying to become a grief counselor.  I became involved in a restorative justice program, Bridges to Life, that allows convicts and crime victims to open a dialogue and work toward reconciliation.  In 2000, I opened myself up to this dialogue with Gary.

When I met Gary, I found that he was a very different person from the boy who once committed a horrible act.  He was a remorseful grown man desperately seeking forgiveness and a chance to make up for the hurt he caused.  My decision to forgive Gary does not mean that what happened is OK.  It can never be OK, and Gary knows that as well as I do.  But keeping him in prison for a longer period would not bring my daughter back.

Gary has now been out of prison for over a year.  He has since dedicated himself to being a positive influence in his community, including working with drug and alcohol addicts at his church.  He regularly tells me that he wants to live a good, impactful life as a “memorial” to my daughter.

Gary is a poster child for why I believe life sentences are so unjust for juveniles.  I have seen that youth have enormous potential to change, and that we should not lock them up without giving them a second chance.

I have also seen that my story is not unique.  I was one of many victims’ family members who appealed to the Supreme Court to do away with juvenile life-without-parole sentences.  While each of our experiences are different, we are united in our belief that keeping children like Gary permanently locked away only compounds the ugliness of crime with the ugliness of hopeless prison sentences.

I strongly believe that young offenders need to be held accountable for their actions. But it is wrong to sentence them to punishments that fail to take into consideration their age and capacity for change.  By denying children the opportunity to someday earn release, you are telling these kids, as Justice Ginsburg stated, that they are throwaway kids.  As they go before judges for resentencing, factors that were dismissed before, such as their age at the time of the crime, their histories of abuse and neglect and their roles in the crime must be considered.  I will feel a sense of calm that children who made tragic mistakes will have an opportunity to be judged by more than their worst act.

Even though he committed an unspeakable crime, Gary was not a throwaway kid.  Had he been sentenced to life-without-parole, he would never have been able to become a living memorial to Cathy.

“I forgive you, and God will, too.” These were the last words Cathy spoke before her death.  I know Cathy would be gratified to see Gary have a second chance and become the positive member of society that he is today.

Stories of redemption like Gary’s are testaments to why the Supreme Court got it right by prohibiting mandatory life-without-parole sentences for children.  The Court has taken an important step in upholding America’s promise to never give up on our children.

Related recent posts on Miller:

July 3, 2012 in Assessing Miller and its aftermath, Offender Characteristics, Who Sentences? | Permalink | Comments (60) | TrackBack

NC legislatue overrides Gov veto of its changes to state's Racial Justice Act

A very interesting, dynamic and long-running legal debate concerning race and the death penalty in North Carolina, which has already drawn all three government branches into the discourse, has taken yet another important turn today as reported in this AP article.  The piece is headlined "NC Legislature overrides death penalty bill veto," and here are excerpts:

The North Carolina Legislature on Monday cancelled Gov. Beverly Perdue's veto of legislation that rolled back a state law giving death row prisoners a way to seek a reduced sentence because of racial bias.

The House and Senate voted separately to override Perdue's veto of changes to the 2009 Racial Justice Act. The bill now becomes law because at least 60 percent of the legislators in each chamber voted to override.

The measure was approved despite arguments it would turn a blind eye to racism in the criminal justice system. Most local district attorneys and other death penalty supporters argue the scaled-back law will rely less on statistics they say were misleading and untie a log jam over the carrying out of executions in North Carolina. North Carolina's last execution was in 2006.

"With today's override of the governor's veto, the end of the moratorium is in sight," House Majority Leader Paul Stam, R-Wake, the bill's chief proponent in the chamber, said in a statement. "The basic principle of justice is restored: individual responsibility."

Lawmakers who supported the Racial Justice Act said the changes gutted the law and will make it impossible for defendants to prove discrimination in the sentencing of a convicted murderer or in the composition of jurors hearing a case. A judge who finds race was a significant factor could reduce a death sentence to life in prison without parole....

The new law limits defendants' use of statistics they think prove racial bias from a time span 10 years before a slaying and two years after a sentence. There had been no time limit. The new law also says statistics alone cannot prove race was a significant factor in a death row inmate's conviction or sentence. Statistics also are now limited to conduct of prosecutors near where the murder occurred, rather than anywhere in the entire state as the previous law allowed.

The one death penalty case ruled on by a judge under the Racial Justice Act will be allowed to continue under the law. A Cumberland County judge found that condemned killer Marcus Robinson's 1991 trial was so tainted by the racially-influenced decisions of prosecutors that he should be removed from death row. Prosecutors plan to appeal his decision.

Weeks made the decision after reviewing a study of North Carolina death penalty cases that found prosecutors eliminated black jurors more than twice as often as white jurors and that a defendant is nearly three times more likely to be sentenced to death if at least one of the victims is white.

"By gutting the Racial Justice Act, our Legislature has turned its back on the overwhelming evidence of racial bias in our state's death penalty system," said Sarah Preston with the state chapter of the American Civil Liberties Union.

All of these legislative developments now set up some interesting (though probably unavailing) ex post facto arguments for condemned NC defendants who brought claims under the RJA before it was reformed.  In addition, I cannot help but wonder if Gov Perdue might be pressured to use her clemency powers to aid defendants who would have had stronger arguments to get off death row under the pre-reform version of the RJA.  In short, this (now-in-the-books) reform of the RJA in North Carolina does not end a significant number of notable legal and policy question surrounding the administration of capital justice in the Tar Heel State.

A few older and more recent posts on NC Racial Justice Act:

July 3, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (18) | TrackBack

Los Angeles DA's long history with California three-strikes reform efforts

This great new piece at The Crime Report, which is headlined "Three Strikes: the California Challenge," details the unique role of the DA of Los Angeles in efforts to reform the state's broad three-strikes law. Here are excepts:

On June 20, The Three Strikes Reform Act officially qualified for the upcoming California ballot. Come November, voters will have the chance to amend the 1994 law that has condemned approximately 3,600 inmates to a 25-to-life sentence for nonviolent, non-serious crimes.

The law was intended to take serious repeat offenders who pick up a third felony charge off the streets for good — the idea being to protect the public from career super-criminals who would likely offend again if allowed to go free.

But more than a third of all Three Strikes lifers in the state system fit the definition of “non-violent” or “non-serious” — some of whom have infamously been put away for life for crimes as trivial as stealing a slice of pepperoni pizza.  California taxpayers spend more than $100 million annually to house these inmates. When the nonviolent lifers get older and start to need more medical care, the tab goes much higher.

The last time voters had the chance to vote to reform the law — the harshest 3-strikes statute in the nation — was in 2004 with Prop 66.  That initiative was on its way to sailing through the ballot process, until a last-minute offensive from Los Angeles District Attorney Steve Cooley, along with then-Governor Arnold Schwarzenegger and others, turned the tide against the initiative in the waning hours of the campaign.

Ironically, despite his role in the death of Prop 66, no California politician is more closely associated with Three Strikes reform than Steve Cooley.  Certainly no one in public office has a more complicated relationship with the statute.

In a conversation with WitnessLA, Cooley maintains that he won his first Los Angeles District Attorney race in 2000, largely thanks to his support of relaxed Three Strikes sentencing guidelines. “It was the defining issue in the race,” he says.

Within two weeks of taking office, Cooley stayed good to his campaign promise, crafting a policy that allowed his attorneys to use discretion in pursuing 25-to-life sentences for non-violent third strikers — the first DA in the state to do so. “It was a very modest reform,” he says. “It was not sweeping.”

According to Cooley, the two most important ethical considerations when it comes to sentencing are evenhanded application and proportionality. “Two-bit forgery and drug possession could be the predicate for 25 to life—the same sentence we often reserve for murderers,” he explains. “People will only respect the laws when they feel punishment is handed out fairly and proportionally. We’ve had a great deal of success with this policy in LA.”

But when Cooley had the chance to back sweeping statewide reform of Three Strikes in 2004 — via Prop 66 — he balked. In May of 2004, polls showed that voters favored Prop 66 by a margin of 76 percent to 14 percent. And then came the 11th hour Cooley, Schwarzenegger and company scare campaign.  Practically overnight, the polls did a 180. Prop 66 went down in flames, by a 53-47 percent margin.

“I don’t think Cooley being against the bill was a deciding factor,” says journalist and author Joe Domanick, whose book Cruel Justice is considered the authoritative work on the history of Three Strikes laws in California.  “The entire law enforcement establishment was against the bill.”...

Cooley is unapologetic about the role he may have played in Prop 66’s demise. “From a public safety standpoint, 66 was scary,” he says. “Once I crunched the numbers and saw how many people would be released and how quickly, I was strongly, openly, publicly against it. In Los Angeles County alone, 12,000-14,000 would have been released within a year.”...

Two years after Prop 66’s demise, the Republican DA teamed with Democrat State Senator Gloria Romero to craft a more modest Three Strikes reform measure — S.B. 1642 — based on the relaxed Three Strikes guidelines he’d developed in the LA DA’s office. “Three Strikes is a powerful tool for prosecutors if used properly,” Cooley explains.  “Prop 66 was a wake-up call: ‘OK, these folks have some arguments that appeal to the public.  Let’s take those arguments away.’ In order to avoid a future Prop 66, we had to make people feel good about how Three Strikes was being applied.”

S.B. 1642, however, died in committee. “The only reason it failed is because five Democrats didn’t vote for it,” Cooley says. “They made a political decision based on their own political careers. It absolutely would have passed otherwise.

The bill’s defeat marked the end of Cooley’s public activism on the issue of Three Strikes. But his positions have followed him throughout his political career....  “During the Attorney General race, both of my Republican opponents made my Three Strikes views an issue. I won the primary by a landslide. My adversary tried the same tact in 2000 and I won by something like 28 points.”

Although an ameliorating law has yet to make it to the books, Three Strikes reform is exceedingly popular in California. A June 2011 Field Poll revealed that nearly 75 percent of California voters favor reform. Field director Mark DiCamillo says his organization won’t take a poll on the initiative itself until the Secretary of State certifies the ballot language sometime next month....

When WitnessLA spoke to him last week, [Cooley] played coy about his support for the current initiative. “I have not taken an official public position yet,” he says. “I do like the concept. I’ve read a number of analyses [of the proposed measure] but I need time to study. I plan on taking a public position soon.”

Cooley readily concedes that the current initiative is based on the policies he implemented in Los Angeles in 2000. He also admits that some of his main deputies were an active part of the conversation when the initiative was being drafted. “People in my office were involved,” he says. “I think this particular product is better than what was proposed in 2006. It’s workable. And I think it will prevent Three Strikes from being attacked by another 66-type effort.

July 3, 2012 in Mandatory minimum sentencing statutes, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

"Poor Land in Jail as Companies Add Huge Fees for Probation"

The title of this post is the headline of this front-page article from the New York Times.  Here are excerpts:

[Recent years have seen] the mushrooming of fines and fees levied by money-starved towns across the country and the for-profit businesses that administer the system. The result is that growing numbers of poor people ... are ending up jailed and in debt for minor infractions.

“With so many towns economically strapped, there is growing pressure on the courts to bring in money rather than mete out justice,” said Lisa W. Borden, a partner in Baker, Donelson, Bearman, Caldwell & Berkowitz, a large law firm in Birmingham, Ala., who has spent a great deal of time on the issue.  “The companies they hire are aggressive.  Those arrested are not told about the right to counsel or asked whether they are indigent or offered an alternative to fines and jail.  There are real constitutional issues at stake.”

Half a century ago in a landmark case, the Supreme Court ruled that those accused of crimes had to be provided a lawyer if they could not afford one.  But in misdemeanors, the right to counsel is rarely brought up, even though defendants can run the risk of jail. The probation companies promise revenue to the towns, while saying they also help offenders, and the defendants often end up lost in a legal Twilight Zone....

In Georgia, three dozen for-profit probation companies operate in hundreds of courts.... In one, Randy Miller, 39, an Iraq war veteran who had lost his job, was jailed after failing to make child support payments of $860 a month. In another, Hills McGee, with a monthly income of $243 in veterans benefits, was charged with public drunkenness, assessed $270 by a court and put on probation through a private company.  The company added a $15 enrollment fee and $39 in monthly fees.  That put his total for a year above $700, which Mr. McGee, 53, struggled to meet before being jailed for failing to pay it all.

“These companies are bill collectors, but they are given the authority to say to someone that if he doesn’t pay, he is going to jail,” said John B. Long, a lawyer in Augusta, Ga., who is taking the issue to a federal appeals court this fall.  “There are things like garbage collection where private companies are O.K. No one’s liberty is affected. The closer you get to locking someone up, the closer you get to a constitutional issue.”

The issue of using the courts to produce income has caught the attention of the country’s legal establishment.  A recent study by the nonpartisan Conference of State Court Administrators, “Courts Are Not Revenue Centers,” said that in traffic violations, “court leaders face the greatest challenge in ensuring that fines, fees and surcharges are not simply an alternate form of taxation.”

J. Scott Vowell, the presiding judge of Alabama’s 10th Judicial Circuit, said in an interview that his state’s Legislature, like many across the country, was pressuring courts to produce revenue, and that some legislators even believed courts should be financially self-sufficient.

In a 2010 study, the Brennan Center for Justice at the New York University School of Law examined the fee structure in the 15 states — including California, Florida and Texas — with the largest prison populations.  It asserted: “Many states are imposing new and often onerous ‘user fees’ on individuals with criminal convictions.  Yet far from being easy money, these fees impose severe — and often hidden — costs on communities, taxpayers and indigent people convicted of crimes.  They create new paths to prison for those unable to pay their debts and make it harder to find employment and housing as well as to meet child support obligations.”

Most of those fees are for felonies and do not involve private probation companies, which have so far been limited to chasing those guilty of misdemeanors.  A decade or two ago, many states abandoned pursuing misdemeanor fees because it was time-consuming and costly.  Companies like Judicial Correction Services saw an opportunity.  They charge public authorities nothing and make their money by adding fees onto the bills of the defendants.

July 3, 2012 in Criminal Sentences Alternatives, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10) | TrackBack

July 2, 2012

Questioning forceful (but suspect) claims by the varied Miller dissents: Alito/legislative judgment concerns

As previously explained here, in a series of posts I am trying to explain briefly what I see as a suspect judgment or assertion or conclusion at the heart of each dissenting opinion to the Supreme Court's recent Eighth Amendment SCOTUS Miller ruling (opinion here, basic questions here and here and here).  In the first post here, I questioned number-crunching in the Roberts/textualism dissent.  In the second post here, I questioned claims about LWOP as a method of punishment in the Thomas/originalism dissent.  This final post in the series now will question the core lament in Justice Altio's dissent that the Miller majority is to be faulted for "arrogation of legislative authority" by countermanding "questions of sentencing policy to be determined by Congress and the state legislatures."

Justice Alito's Miller dissent, which intriguingly was joined only by Justice Scalia, merits praise at the outset for his effective review of modern Eighth Amendment jurisprudence with a special focus on how the "staple of this inquiry was the tallying of the positions taken by state legislatures." He concludes this review by lamenting where he sees the Miller majority taking this jurisprudence: "What today’s decision shows is that our Eighth Amendment cases are no longer tied to any objective indicia of society’s standards.  Our Eighth Amendment case law is now entirely inward looking."

For starters, as a matter of Eighth Amendment interpretation and broader constitutional theory concerning the limits imposed on legislatures by the Bill of Rights, one might reasonably respond to Justice Alito's laments here by saying simply "So what?"  Rarely does anyone assert or even suggest that interpretations of the individual rights protected by the First or Second or Fourth or Fifth or Sixth Amendments should be concerned principally with "tallying of the positions taken by state legislatures."  Indeed, Justice Alito's own votes to find violations of the Bill of Rights in cases like Citizens United (involving the First Amendment) or McDonald (involving the Second Amendment) or Jones (involving the Fourth Amendment) seem based on his own "inward looking" judgments about the reach of these constitutional provisions without any serious inquiry into or evident concerns about "the positions taken by state legislatures" as to campaign finance or gun control or GPS tracking. 

Though there is a textured history of "state-by-state head-counting" in the Supreme Court's modern Eighth Amendment cases, the constitutional soundness of this approach to interpreting a Bill-of-Rights limit on legislative power has always seemed suspect to me.  Our constitutional structure with judicial review arguably not only reasonably expects, but arguably demands, judges to make certain constitutional judgments about individual rights by "looking inward" to define counter-majoritarian principles enshired in the Constitution.  To assert in this context that judges ought always embrace and endorse whatever majoritarian legislative judgments find expression in a good number of states is a recipe for making the Eighth Amendment almost nonjusticiable.

Moreover, even if one embraces the notion that legislative judgments merit special respect and deference in the application of the Eighth Amendment, one still must concede that judges have some independent (aka "inward looking") work to do here. Justice Alito acknowledges as much via key language (which I have highlighted) at the start of the penultimate paragraph of his dissent: "The Eighth Amendment imposes certain limits on the sentences that may be imposed in criminal cases, but for the most part it leaves questions of sentencing policy to be determined by Congress and the state legislatures — and with good reason."

Perhaps because I cannot recall a single Eighth Amendment case in which Justice Alito has found there to be an Eighth Amendment violation, I am left wondering just what Justice Alito considers to be the "certain limits" imposed by the Eighth Amendment which require judges, for some part (but not "the most part), to remove questions of sentencing policy from elected lawmakers.  In other words, while Justice Alito uses language that concedes judges are to impose some kind of ("inward looking") limits on criminal punishments, he has never provided any indication or even a hint of what he thinks those Eighth Amendment limits might be.

Finally, Justice Alito's complaints about the purported "arrogation of legislative authority" seem especially misguided in the context of a Miller ruling in which not a single Justice declared per se unconstitutional any LWOP sentence for a juvenile murderer.  Rather, the ruling in Miller invalidated only mandatory LWOP sentences, which really serves only to vindicate judicial authority in light of the reality than mandatory LWOP schemes only apply if and when prosecutors exercise their broad discretion in certain ways.  (Notably, one does not hear -- especially from former prosecutors like Justice Alito -- any serious laments that prosecutors are arrogating legislative authority in this realm if and whenever they seek temper the application of mandatory punishment schemes through use of their discretionary (and entirely unreviewable) charging and bargaining powers.)

Given that mandatory sentencing schemes are never really mandatory for executive branch prosecutors and especially given that Miller just requires that the judicial branch have some decision-making role in juve LWOP sentencing systems, I do not find especially convincing Justice Alito's contention that Miller involves the Supreme Court countermanding "questions of sentencing policy to be determined by Congress and the state legislatures."  Rather, I think Miller is more accurately viewed as an effort by the Supreme Court to make sure judges, and not just prosecutors, get to make some judgment about whether a juvenile's crime is so awful that he ought never even get a chance to seek release from prison.  In other words, Miller really seems to involve the Court countermanding -- justifiably, in my view -- judgments as to sentencing procedure rather than as to matters of sentencing policy as lamented by Justice Alito.

Related post in this series and other notable posts with opinions on Miller:

July 2, 2012 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Record big criminal fine for big drug company involved in big fraud

This new AP article, headlined "GlaxoSmithKline to pay largest health care fraud fine in U.S. history," reports on a notable financial punishment for a corporate criminal. Here are the details:

GlaxoSmithKline will pay $3 billion and plead guilty to promoting two popular drugs for unapproved uses and to failing to disclose important safety information on a third in the largest health care fraud settlement in U.S. history, the Justice Department said Monday.

The $3 billion fine also will be the largest penalty ever paid by a drug company, Deputy Attorney General James M. Cole said. The corporation also agreed to be monitored by government officials for five years to attempt to ensure the company's compliance, Cole said....

"For far too long, we have heard that the pharmaceutical industry views these settlements merely as the cost of doing business," Acting Assistant Attorney General Stuart F. Delery, head of Justice's civil division, said at the news conference. "That is why this administration is committed to using every available tool to defeat health care fraud."...

Prosecutors said GlaxoSmithKline illegally promoted the drug Paxil for treating depression in children from April 1998 to August 2003, even though the FDA never approved it for anyone under age 18. The corporation also promoted the drug Wellbutrin from January 1999 to December 2003 for weight loss, the treatment of sexual dysfunction, substance addictions and attention deficit hyperactivity disorder, although it was only approved for treatment of major depressive disorder.

Justice Department officials also said that between 2001 and 2007 GlaxoSmithKline failed to report to the FDA on safety data from certain post-marketing studies and from two studies of the cardiovascular safety of the diabetes drug Avandia. Since 2007, the FDA has added warnings to the Avandia label to alert doctors about potential increased risk of congestive heart failure and heart attack.

The drug corporation also agreed to resolve civil liability for promoting the drugs Paxil, Wellbutrin, Advair, Lamictal and Zofran for off-label, non-covered uses. The company also resolved accusations that it paid kickbacks to doctors to prescribe those drugs as well as the drugs Imitrex, Lotronex, Flovent and Valtrex....

Of the penalties, $1 billion covers criminal fines and forfeitures and $2 billion is for civil settlements with the federal government and the state governments of Massachusetts and Colorado.

July 2, 2012 in Criminal Sentences Alternatives, Offense Characteristics, White-collar sentencing | Permalink | Comments (3) | TrackBack

"Lawyer: More $ for capital cases; Judge: No way"

The title of this post is the headline of this notable local article discussing on-going debates in Ohio concerning ensuring adequate funding for death penalty defense. Here is how the piece gets started:

If you were on trial literally for your life, would $16,760 be enough to get the legal representation you deserve?  That was the average cost to provide a taxpayer-paid defense for capital murder cases in Hamilton County in the last fiscal year, an Ohio Public Defender report shows.

That amount is shameful when someone’s execution is contemplated, Cincinnati civil rights attorney Bob Newman said, so he’s on a crusade to raise it.  But he’s getting resistance from at least one long-time Hamilton County judge who insists the current system is fine.

Newman asked five Hamilton County judges to appoint him to death penalty cases -- for free. He’s not trying to win an acquittal or defeat a death sentence. Newman wants to be appointed only so he can fight for more money to defend capital cases.

In Hamilton County, lawyers appointed to represent someone in a death-penalty case who can’t afford a lawyer are paid $45 per hour with a theoretical cap of $22,500 per case. All of that is taxpayer money. Often, though, judges approve funding above that cap.  Even when that happens, though, Newman insists that’s not enough to do the job correctly when a lawyer can invest 2,000 hours on capital cases.

“The system is not working well because $45 per hour translates into a lawyer who has two competing obligations -- his obligation to represent his client and his obligation to survive and provide for his family,” Newman said.

Taxpayers already are sacrificing to pay for those publicly appointed lawyers, and the system works, Common Pleas Court Judge Norbert Nadel countered.  “I have found court-appointed attorneys representing indigent defendants in capital murder cases to be of the highest caliber” and work “in an extremely competent, high quality and zealous manner,” Nadel wrote in rejecting Newman’s request to be appointed to a death-penalty case pending before him.

Tell that to someone facing a trip to death row, who may get a sub-par attorney simply because of cost, Newman said. “In some jurisdictions in Ohio, it is literally lawyers at the bottom of the barrel who are appointed. Or a brand new lawyer who is seeking some experience or doing a judge a favor,” Newman said.

Hamilton County pays well compared to some rural Ohio counties but more money is needed, said Ohio Public Defender Tim Young.  While Hamilton County’s Public Defender caps death-penalty cases at $22,500 per defense attorney, Champaign County’s cap is $5,000 and Knox County’s is $6,000.  Hamilton County’s cap hasn’t increased in eight years, Young added. “Even in this economy, who hasn’t received a raise in eight years?” Young asked.

Dennis Will, the Lorain County Prosecutor and head of the Ohio Prosecuting Attorneys Association, supports Young.  Defense lawyers in capital cases need to be paid fairly “on a scale with what private individuals can afford,” Will said.

Money is important to provide the best defense in a life-and-death case, defense attorney Norm Aubin said.  “It’s a lot of money, but it’s not for a capital case,” Aubin said of the $22,500 cap per attorney on death-penalty cases.  “If it were a private (attorney on the) case, it would cost hundreds of thousands of dollars.”

July 2, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Widows and orphans win over prisons in Illinois budget

A great example of how prison spending can become a low priority once its opportunity costs become clear in a tight budget comes today from this state budget story out of Illinois, headlined "Illinois governor signs budget, vetoes prison funds." Here are the basics:

llinois Governor Pat Quinn said on Saturday he signed a $33.7 billion budget for fiscal 2013 after vetoing spending for prisons that he plans to close.   Quinn said public pensions, which lawmakers have so far failed to reform, will eat up $5.2 billion of the fiscal 2013 budget, compared to $1.8 billion in fiscal 2008....

The Democratic governor said he also planned to work with lawmakers later this year to reallocate the vetoed prison funding to the Department of Children and Family Services, which lawmakers cut by $50 million.  He said he was choosing vulnerable children over "outdated, half-full facilities."

Quinn said the new spending plan, which aims to save $82 million through the closure and consolidation of 57 state facilities, makes progress on fixing Illinois' ailing finances by cutting spending, paying bills and reforming Medicaid, the state and federally funded healthcare program for the poor.

I am not sure if anyone has ever tracked whether pension and health care expenditures reduce crime, but I am sure that wise investments in children (through education and other services for at-risk youths) can have a significant long-term public safety benefit.  Thus, IF Illinois ends up spending the prison monies saved on effective programming for kids, Gov Quinn has made a "smart on crime" budget call here.  (I have placed the if in the prior sentence in all caps, of course, because this is always a big if.)

July 2, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (12) | TrackBack

July 1, 2012

Guest post on Miller from Jennifer Bishop Jenkins, President of the National Organization of Victims of Juvenile Lifers

A few weeks ago at the US Sentencing Commission's annual conference, I had the great pleasure of meeting Jennifer Bishop Jenkins, the President of the National Organization of Victims of Juvenile Lifers (NOVJL). With the juve LWOP cases then still pending before SCOTUS, Jennifer and I had a fascination conversation about how victims of juve lifers would be impacted by a SCOTUS ruling declaring some juve LWOP sentences unconstitutional. Then, after the ruling, I asked Jennifer if she would write a guest-post for this blog, and here is what she kindly sent me for posting, reprinted in full:

Victims families' primary concern in the wake of the Miller v Alabama, Jackson v Hobbs ruling this week from the Supreme Court is for those like us who do not yet know about the case.  We have been calling on all those involved to devote themselves now to outreach to affected victims families, hopefully delivering to them all the information and support they need to cope with the new legal realities just created by the Court.  We already know that well-funded offender advocates are busily working already to assist many teen killers to file their new legal challenges.  We have long been troubled by the significant staff and funding available to help those who murdered our family members, while there has been no assistance whatsoever to the victims families left behind.

But we also are confident that very little in these offenders' prison sentences will actually change, and here's why:

While striking down all “mandatory” JLWOP sentences for teen killers, retroactive application of this ruling will be legally challenged in many killers’ sentences.  This matter will obviously be heavily litigated (see legal analysis at our website here).  Cases still under direct appeal will be re-sentenced, but state legislatures will likely weigh in first, and victims families, along with the general public, can help shape how state legislatures decide to comply with the ruling.

State legislatures can simply make the LWOP sentences optional -- then judges can still give them to the offenders.  Many will do just that.  After the legal tussles shake out, many victims’ families may only have to undergo only ONE additional proceeding with the killer -- a new sentencing hearing replacing the mandatory life sentence with what will likely be a virtually equally serious alternative.

While any encounter with the offender in a courtroom will be seriously re-traumatizing for victims families, they will have a right in all 50 states and federally to be notified of these proceedings, to be present, and to make a statement about the impact that the crime had on them before the new sentence is given.

Most offenders that get a re-sentencing opportunity will receive either an optional life without parole sentence (exact same sentence as they got before) or a lengthy term of years that constitutes a virtual life sentence, changing nothing for all intents and purposes. While we know a few will receive some relief, we are predicting that very few teen killers serving life sentences will likely ever be released early from prison.

The Supreme Court has now been asked multiple times to categorically ban JLWOP by attorneys for the offenders, and has repeatedly rejected that request.  There was not a SINGLE vote on the Supreme Court to find all life sentences for teen killers unconstitutional.  The Supreme Court has stated clearly that life without parole sentences for those rare most serious teen killers is completely constitutional as long as judges can consider the offender’s age as an optional factor in the sentencing process.

While NOVJL only exists to support and inform victims, and we take no specific stand on what sentencing should be (the purview of legislatures and courts) we did have some concerns with the majority opinion as written.

Justice Kagan in writing her majority opinion adopts the propaganda-laden word choice of offender advocates in her ruling calling these convicted murderers “children” (the correct legal term is “juvenile”) and uses the offender advocates’ propaganda line: “children sentenced to die in prison.”  We believe that Supreme Court Justices should not use advocacy language so inaccurate and so insensitive to victims.  The only people in this discussion with death sentences are our murdered loved ones.

To call a life sentence a death sentence is reminiscent of George Orwell’s futuristic warning novel 1984 in which language loses all meaning: war means peace, love means hate, and lies mean truth. A life sentence is NOT a death sentence.  It is a LIFE sentence. Only a death sentence where the offender is to be executed is a death sentence. The way Justice Kagan uses it, the words mean no more than what is true for us all: that we are living this life under a proverbial “sentence of death” -- someday.  Many victims families have complained of the insensitive lack of distinction between the offender who LIVES on, and our innocent murdered loves ones who suffered horribly and DIED.

Even serving a life sentence, offenders can experience life, love, joy, pleasure, family, relationships, and meaning.  They can grow wise, they can educate themselves, they can be helpful to others, they can make a difference, they can be creative, they can make a legacy for their lives, and they can impact others in a positive way.  They can choose each day to make good things happen, even from their cells.  Many inmates that we admire do just that.  They can even express remorse for their crimes and try to be helpful to victims everywhere.  They can live.  Even from behind bars.  They LIVE.  The language written in the majority opinion makes no such distinction, and we believe sadly diminishes the Court’s legacy of brilliantly written opinions.

Also, there was no recognition in the majority opinion whatsoever that there were dead victims at the heart of this whole huge discussion.  Thankfully, Justices authoring the minority dissent actually mentioned the word “victim”.  But the majority opinion gave no thought, apparently, to the impact of this decision on victims families.

Finally, some of us are actually feeling sorry for the families of the offenders affected by this ruling: right now they are likely very happy -- even celebrating -- feeling hope for the first time since these offenders were convicted of these murders and sent to prison for life.  Some are likely even planning the offenders’ homecoming.  We know that this is going to end in disappointment for almost all of them.  Most of these offenders will never be released from prison, even after all the legal wrangling that this SCOTUS ruling will allow.  They committed horrific murders.  Most will not likely ever qualify for release anytime soon, even if they are re-sentenced in a way that allows release possibilities.

Juvenile life without parole remains constitutional, rare, and available as a sentence when the facts of the offense and the offender demonstrate that it is appropriate.  Our focus remains where it should be: assisting people whose lives have been destroyed by the violent choices of others, and preventing future such tragedies.

July 1, 2012 in Assessing Miller and its aftermath, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (25) | TrackBack

Seeking commentary/guest-posts on the SCOTUS sentencing Term that was

This blog has already benefitted greatly from some terrific guest-posts about major rulings by the Supreme Court this past Term (examples here on Lafler/Frye and here on Miller), and I am very eager to bring  more voices into the mix throughout the summer.  I hope interested folks will consider sending me cut-and-paste-ready commentary not only on the big sentencing cases decided in the last few weeks (Dorsey, Miller and Southern Union), but also on any other big cases that could have surprising criminal justice implications and/or on trends one might identify as all four of the newer Justices on the Roberts Court are continuing to define their jurisprudential path.

For those inclined to take a look at the whole SCOTUS Term than just was, here is Adam Liptak's summary review from the New York Times, which is headlined "In Supreme Court Term, Striking Unity on Major Cases."  The piece includes these notable passages about a key swing Justice and the setting in which he swings the most:

What was striking this year was that Justice Kennedy, a moderate conservative, swung right and left an equal number of times. Since 2000, there have been only two terms in which Justice Kennedy did not vote with the conservatives at least 60 percent of the time in such ideologically divided cases.

Several of the cases in which Justice Kennedy joined the liberal bloc involved the rights of people accused and convicted of crimes. This year, the court turned its attention away from criminal trials, which are vanishingly rare, and toward the real world of criminal justice, in which plea bargains are the norm and harsh sentences commonplace.

“What the court really was doing this term was bringing the Constitution to previous blind spots in the criminal justice system,” said Jeffrey L. Fisher, a Stanford law professor who argues frequently before the Supreme Court.

In a 5-to-4 decision concerning sentences of life without parole for juvenile offenders, Justice Kennedy entrusted the majority opinion to Justice Kagan, highlighting a notable alliance.  Over all, the two voted together 83 percent of the time.

July 1, 2012 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack