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July 28, 2012

George Will assails "abuse of criminal law for capricious bullying" in whale of federal tale

George Will has this notable new commentary in the Washington Post , headlined "Blowing the whistle on the federal Leviathan," about one extreme federal prosecution.  Here are excerpts:

The huge humpback whale whose friendliness precipitated a surreal seven-year — so far — federal hunt for criminality surely did not feel put upon.  Nevertheless, our unhinged government, with an obsession like that of Melville’s Ahab, has crippled Nancy Black’s scientific career, cost her more than $100,000 in legal fees — so far — and might sentence her to 20 years in prison.  This Kafkaesque burlesque of law enforcement began when someone whistled.

Black, 50, a marine biologist who also captains a whale-watching ship, was with some watchers in Monterey Bay in 2005 when a member of her crew whistled at the humpback that had approached her boat, hoping to entice the whale to linger.  Back on land, another of her employees called the National Oceanic and Atmospheric Administration (NOAA) to ask if the whistling constituted “harassment” of a marine mammal, which is an “environmental crime.” NOAA requested a video of the episode, which Black sent after editing it slightly to highlight the whistling. NOAA found no harassment — but got her indicted for editing the tape, calling this a “material false statement” to federal investigators, which is a felony under the 1863 False Claims Act, intended to punish suppliers defrauding the government during the Civil War.

A year after this bizarre charge — that she lied about the interaction with the humpback that produced no charges — more than a dozen federal agents, led by one from NOAA, raided her home. They removed her scientific photos, business files and computers. Call this a fishing expedition. She has also been charged with the crime of feeding killer whales when she and two aides were in a dinghy observing them feeding on strips of blubber torn from their prey — a gray whale....

Never mind. This pursuit of Black seems to have become a matter of institutional momentum, an agent-driven case. Perhaps NOAA, or the Justice Department’s Environmental Crimes Section, has its version of Victor Hugo’s obsessed Inspector Javert. In any event, some of the federal government’s crime-busters seem to know little about whales — hence the “whistle-as-harassment” nonsense.

Six years ago, NOAA agents, who evidently consider the First Amendment a dispensable nuisance, told Black’s scientific colleagues not to talk to her and to inform them if they were contacted by her or her lawyers.  Since then she has not spoken with one of her best friends.  To finance her defense she has cashed out her life’s savings, which otherwise might have purchased a bigger boat.  The government probably has spent millions. It delivered an administrative subpoena to her accountant, although no charge against her has anything to do with finances.

In 1980, federal statutes specified 3,000 criminal offenses; by 2007, 4,450. They continue to multiply. Often, as in Black’s case, they are untethered from the common-law tradition of mens rea, which holds that a crime must involve a criminal intent — a guilty mind. Legions of government lawyers inundate targets like Black with discovery demands, producing financial burdens that compel the innocent to surrender in order to survive.

The protracted and pointless tormenting of Black illustrates the thesis of Harvey Silverglate’s invaluable 2009 book, “Three Felonies a Day: How the Feds Target the Innocent.” Silverglate, a civil liberties lawyer in Boston, chillingly demonstrates how the mad proliferation of federal criminal laws — which often are too vague to give fair notice of what behavior is proscribed or prescribed — means that “our normal daily activities expose us to potential prosecution at the whim of a government official.” Such laws, which enable government zealots to accuse almost anyone of committing three felonies in a day, do not just enable government misconduct, they incite prosecutors to intimidate decent people who never had culpable intentions. And to inflict punishments without crimes.

By showing that Kafka was a realist, Black’s misfortune may improve the nation: The more Americans learn about their government’s abuse of criminal law for capricious bullying, the more likely they are to recoil in a libertarian direction and put Leviathan on a short leash.

July 28, 2012 in Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (34) | TrackBack

"Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches and Specialized Community Integration"

The title of this post is the title of this new paper on SSRN by Heather Cucolo and Michael Perlin. Here is the abstract:

The public’s panic about the fear of recidivism if adjudicated sex offenders are ever to be released to the community has not subsided, despite the growing amount of information and statistically-reliable data signifying a generally low risk of re-offense.  The established case law upholding sex offender civil commitment and containment statutes has rejected challenges of unconstitutionality, and continues to be dominated by punitive undertones. We have come to learn that the tools used to assess offenders for risk and civil commitment still have indeterminate accuracy, and that the availability of meaningful treatment for this population remains uncertain in its availability and debatable as to its effectiveness.  Yet, society continues to clamor for legislation confining this cohort of offenders for “treatment,” and, ostensibly, protection of the community, and legislatures respond quickly to these calls.  This “reform legislation” often includes strict and demeaning post-release restrictions that track offenders and curb their integration into society.  These “reforms” continue to show no benefit either to the public or to the individual offender.  The absence of meaningful and effective treatment during confinement, combined with inhumane conditions upon release, make it far less likely that this cohort of individuals will ever become productive members of society.  Only through therapeutic jurisprudence, a focus on rehabilitation, and a dedication to authentically treating individuals who have committed sexual offenses with humanity, will it be possible to reduce recidivism and foster successful community reintegration.

This article takes a new approach to these issues.  It examines sex offender laws, past and present, looks at this area of sex offender commitment and containment through a therapeutic jurisprudence lens, and suggests basic policy changes that would optimally and constitutionally minimize re-offense rates, while upholding and protecting human rights of all citizens.  It highlights the failure of community containment laws and ordinances by focusing on (1) the myths/perceptions that have arisen about sex offenders, and how society incorporates those myths into legislation, (2) the lack of rehabilitation offered to incarcerated or civilly-committed offenders, resulting in inadequate re-entry preparation, (3) the anti-therapeutic and inhumane effect of the laws and ordinances created to restrict sex offenders in the community, and (4) the reluctance and resistance of courts to incorporate therapeutic jurisprudence in seeking to remediate this set of circumstances.  It concludes by offering some modest suggestions, based on the adoption of a therapeutic jurisprudence model of analysis.

July 28, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

July 27, 2012

"The Right Sentencing: Conservatives backtrack on long prison sentences"

The title of this post is the headline of this notable piece by Michael Barone via the National Review Online. Here are excerpts:

Conservatives in increasing numbers are moving away from their decades-long support for long prison terms for criminals. Last year, Newt Gingrich, William Bennett, and Reagan attorney general Edwin Meese endorsed a “right on crime” initiative, calling for rehabilitation measures rather than prison sentences for nonviolent offenders. They joined liberals who have been dismayed that America has just about the highest rate of incarceration of any nation in history.

There’s little question that the vast increase in prison populations from the lows of the 1960s to the highs of recent decades has resulted in reduced crime. Violent offenders who are locked up can’t attack people outside. But it’s also true that crime rates stayed high for a couple of decades after prison populations started their vast increases. Better police tactics, pioneered by Rudy Giuliani and William Bratton in New York City and adapted by many others, played a major role.

Meanwhile, laws requiring mandatory minimum sentences have resulted in lengthy terms for many who are likely to be no threat to society. This has led conservatives such as anti-tax crusader Grover Norquist to endorse the Families Against Mandatory Minimums organization. It seems particularly unfair to many conservatives, as well as to liberals, that judges must sentence people possessing small amounts of marijuana to five-year terms when states with medical-marijuana dispensaries have de facto legalized the substance.

Some conservatives have taken such stands after serving in prison themselves, including the late Charles Colson, founder of the Prison Fellowship, and Pat Nolan, a former Republican California legislator. Nolan points out that conservatives such as Texas governor Rick Perry have turned down proposals to build new prisons and have stepped up drug-treatment programs instead....

[T]here’s a strong case to be made that stringent anti-crime measures that were, after some years, effective at reducing crime are no longer necessary now that violent-crime rates have gone down. So just as facts have prompted liberals to abandon stricter gun control, facts seem to be persuading conservatives to abandon tough anti-crime laws they once championed.

July 27, 2012 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Fascinating deal cut in federal habeas action brought by California pot dispensary owner

A helpful reader alerted me to this Sacramento Bee story from earlier this week, headlined "Plea cuts prison term for medical pot seller Bryan Epis," which reports on a remarkable resolution to a remarkable federal criminal justice matter in California. Here are the highlights:

Bryan James Epis, the first person associated with a California cannabis dispensary to duke it out at trial with federal prosecutors over medical marijuana, has had 2 1/2 years whacked off his mandatory 10-year prison term.

Epis, who has been locked in a pitched battle with law enforcement over his cultivation and use of marijuana for almost 20 years, is an inmate at the Terminal Island Federal Correctional Institution in Southern California.  He now should be released in early 2014 instead of September 2016, and will be supervised by probation officers for 10 more years.

The 45-year-old Epis established a cannabis club in Chico, one of the first in the state after passage in 1996 of a California ballot initiative permitting medicinal use of marijuana with a doctor's recommendation.  At the conclusion of a highly publicized trial a decade ago in Sacramento federal court, he was found guilty of conspiring to produce 1,000 or more plants at his home within 1,000 feet of Chico High School.  The crime carries a mandatory minimum 10 years behind bars.  He was free for much of the intervening time pending efforts to overturn the conviction.

The rare agreement, which was approved Tuesday by U.S. District Judge Garland E. Burrell Jr., is surprising on multiple levels:

• Federal prosecutors signed off on it, yet they have zero tolerance for defendants who do what they say Epis did -- grow pot out of a greedy hunger for huge profits.

• The government had argued for years that Epis deserved no reduction because he was less than forthcoming at a debriefing by prosecutors and agents.

• The original sentence is statutorily mandated and had been upheld on appeal.

• The trial prosecutor, Samuel Wong, is known as one of the toughest in the business on pot growers, yet he agreed to the reduction....

A common thread that has run throughout the case, starting with the trial, is Epis' claim that Wong relied heavily on false and misleading evidence, and arguments regarding a spreadsheet seized during a search of his home that the prosecutor knew had nothing to do with the charges in the indictment.  Wong heatedly denies the accusation, arguing an appeals panel rejected the claim.

In April, Hollows scheduled an evidentiary hearing on the issue for June 13. At a pre-hearing conference on June 4, Epis attorney John Balazs and Wong informed Hollows they had reached an agreement....

U.S. Attorney Benjamin Wagner said Tuesday a recent U.S. Supreme Court opinion may have made Epis' challenge more viable.   "As set forth in the settlement agreement, Bryan Epis claimed that his trial attorneys rendered ineffective assistance to him with respect to their advice concerning the United States' pretrial plea offer," Wagner said in a prepared statement. "As also detailed in the agreement, his trial attorneys did not refute that claim, and under recent Supreme Court precedent, Epis therefore might have been entitled to some relief."...

Epis, who has a law degree, said Monday that, "given the risks involved in further litigation and the low track record of success in habeas cases in general, I accepted the government's offer despite all its conditions."

One of the conditions Wong insisted on was that Epis give up his constitutional right to speak out in favor of medical marijuana and across-the-board legalization through the end of his supervised release. Epis stands as a symbol among marijuana advocates of the sacrifices they feel have been made in the face of an intractable federal stance on the drug.

"Although we had strong claims, I understand and concur in Bryan's decision to accept the government's offer … in order to get back to his family as soon as possible," Balazs said Monday.  "At the same time, it seems un-American for the government to insist … that Bryan give up his First Amendment right to advocate for the reform of our country's marijuana laws."

The helpful reader who alerted me to this story was Epis attorney John Balazs, who has also told me that Bryan Epis has given him permission to share info and comments about his case and that he may provide some additional "blog copy" about this fascinating case in the near future.

July 27, 2012 in Mandatory minimum sentencing statutes, Pot Prohibition Issues, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack

July 26, 2012

Taking stock on what Miller is likely to portend

This new piece from The Crime Report, which is headlined "A Reprieve for Juvenile Lifers?," provides an effective review of what the Supreme Court's recent Eighth Amendment work in Miller could prompt. Here is how it gets started:

The U.S. Supreme Court’s recent decision banning mandatory life without parole for juvenile criminals gave inmates like Christine Lockheart a glimmer of hope. In response to the Court’s ruling, the Iowa Court of Appeals earlier this month overturned Lockheart’s mandatory life sentence for a murder committed when she was 17 and ordered a judge to hold a new sentencing hearing.

But less than a week later, Iowa Gov. Terry Branstad commuted the sentences of all state prisoners serving mandatory life terms for crimes committed as juveniles, and instead gave them life with the possibility of parole after 60 years.

Lockheart’s lawyer says he plans to challenge Branstad’s order in court, arguing that it violates the Supreme Court’s decision in Miller v. Alabama. That ruling said that sentencing judges should consider the individual circumstances of crimes committed by juveniles, including “how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”

Lockheart’s case is among the first of what criminal justice experts say will be numerous and lengthy legal battles as courts and state legislatures across the country determine how to comply with the Supreme Court’s ruling—and what to do with the estimated more than 2,000 prisoners currently serving mandatory life sentences for crimes committed when they were under the age of 18.

“This is very clean at the wholesale level and very messy at the retail level,” said Mark Osler, a professor at the University of St.Thomas Law School, in Saint Paul, MN. “It’s very clear from 10,000 feet that children are different.” Osler, who specializes in sentencing law, added: “But with these 2,000 cases, it’s going to be pretty messy with a lot of different outcomes.”

Though the Court barred mandatory life sentences for juveniles, experts said it left unanswered a host of legal issues that could impact who is eligible for a new sentence and what rights they have. It remains unclear whether the Court’s ruling is retroactive, whether prisoners who petition for a new sentence are entitled to a lawyer, and what standards should be used in handing down sentences for juveniles.

“I expect this will be bounced back up to the Supreme Court multiple times because all those questions have to be answered,” said Frank Bowman, a professor at the University of Missouri and a former federal prosecutor and special counsel to the U.S. Sentencing Commission. “We will be litigating this for years.”

Related recent posts on Miller:

July 26, 2012 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Notable en banc doings in Fifth and Ninth Circuits

Thanks to the always helpful How Appealing, I see that this week has brought some significant criminal justice en banc action from a few big circuits. 

The Fifth Circuit, as reported in this Reuters article, issued a "splintered en banc decision" concerning the application of plain error standards in which it "joined the majority of other circuits that consider the law as it existed at the time of appeal rather than at the time of trial."  The ruling, which runs 65 pages, is available at this link.

The Ninth Circuit, as reported in this Los Angeles Times article, has decided to reconsider en banc "a California law that requires police to collect DNA from people who are arrested on suspicion of felonies, regardless of whether they are convicted."

July 26, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Annual DOJ letter to USSC urges making "our public safety expenditures smarter and more productive"

A helpful reader informed me that the annual letter sent by the Justice Department's Criminal Division to the US Sentencing Commission commenting on the operation of the federal sentencing guidelines and other matters is now available on-line at this link. This 11-page letter has many extraordinary passages and interesting facets; the letter demands to be read in full.  Here are just parts of the first section of the letter a few that struck me as especially blog-worthy:

As a country, over several decades, we steadily increased funding for criminal justice agencies at all levels of government, supporting numerous programs and initiatives that changed the way the nation approached crime and criminal justice. According to data from the Bureau of Justice Statistics, state and local criminal justice spending (including law enforcement, criminal prosecution, courts, and corrections) rose from approximately $32.6 billion to $186.2 billion between 1982 and 2006.... Similarly, federal justice system expenditures steadily increased from $4.5 billion in 1982 to $41 billion in 2006.... These investments have meant more police on the streets, more court personnel of all kinds, more offenders behind bars, more treatment, prevention and intervention programs, and greater research and innovation across the criminal justice system.

The result of these and many other policy changes and investments has been the mirror image of the violent crime increases of the 1960s, 70s and 80s. Last month, the Federal Bureau of Investigation reported that in 2011, the number of violent crimes fell by 4 percent across the country, and the number of murders fell by 1.9 percent.  These are the latest bits of extraordinarily good news about violent crime in the United States that span back to 1992.  The good news — a massive reduction in violent crime — marks a tremendous achievement of government. Violent crime in the United States is now at the lowest levels in generations, when only 20 years earlier, we were experiencing the highest levels of violent crime in the post-war period....

While not every U.S. city experienced the reduction in violent crime numbers, the broad trend touched most of the country.  Our two largest cities have seen among the biggest drops in violent crime over the past two decades.... In 2011, 64 percent of all large U.S. cities reported a decrease in violent crime.... In a stunning and all-too-easily forgotten way, our governmental collaboration has improved the day-to-day safety of communities large and small, rich and poor, and the day-to-day lives of men, women and children throughout the nation.

Recently, though, the situation has changed. As has been well documented, the financial crisis of 2008 — and the recession that followed — brought steep cuts in state and local government spending. As a result, state and local investments in criminal justice programs have been declining for several years.... At the federal level, the Budget Control Act sent a clear signal that the steady growth in the budgets of the Department of Justice, other federal enforcement agencies, and the federal courts experienced over the past 15 years has come to an end.  Overall budgets have mostly been flat over the past three years.  However, as prison and detention spending has increased, other criminal justice spending, including aid to state and local enforcement and prevention and intervention programs, has decreased.  In fact, the trend of greater prison spending crowding out other criminal justice investments goes back at least a decade and has caused a significant change in the distribution of discretionary finding among the Department's various activities....

Taken together, reductions in public safety spending that have already occurred and that are likely to continue in the coming years mean that the remarkable public safety achievements of the last 20 years are threatened unless reforms are instituted to make our public safety expenditures smarter and more productive.  In late 2011 and early 2012, we have already seen some cities experience increases in violent crime.  The question our country faces today is how can we continue to build on our success in combating crime and ensuring the fair and effective administration of justice in a time of limited criminal justice resources at all levels of government?  In other words, how will the country ensure sufficient investments in public safety, and how will those involved in crime policy ensure that every dollar invested in public safety is spent in the most productive way possible?

July 26, 2012 in Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

A comparative perspective on "The Life Sentence and Parole"

Especially given changes to LWOP sentencing in the United States now required by the Supreme Court's Eighth Amendment work in Graham and Miller, this new article appearing on SSRN provides interesting and important comparative insights on long prison terms.  The article by Diarmuid Griffin and Ian O'Donnell is titled "The Life Sentence and Parole," and here is the abstract:

Taking the life sentence as the new ‘ultimate penalty’ for many countries, this paper explores the factors associated with the release of life-sentence prisoners on parole. The Republic of Ireland is selected as a case study because it is in the unusual position of being influenced by European human rights norms as well as by the Anglo-American drive towards increased punitiveness.  As an apparent outlier to both the human rights and punitive approaches, or perhaps as a hybrid of sorts, the relative impact of the two models can be elucidated.  The article also provides an example of how small penal systems can be resistant to broader trends and the value of directing the criminological gaze upon countries where it seldom falls.

July 26, 2012 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sentencing around the world | Permalink | Comments (0) | TrackBack

Every Greek prisoner now has to get out of the fancy new pool

As reported in this AP article, "Greece’s largest maximum security prison won’t get to keep its waterfall-adorned, barbecue-equipped pool." Here is why:

The Justice Ministry on Tuesday ordered the destruction of a 7.4-meter (24-foot) long pool in the yard of Korydallos prison’s psychiatric wing, saying the structure was built without permission and did not comply with health and safety standards.

The pool’s existence at the jail near Athens was reported by a newspaper Sunday. The ministry said the structure, reportedly built last year, includes a small rock waterfall and a poolside barbecue installation.

Greece’s Prison Officers Association said the pool was built using money the group raised and was restricted to staff and inmates at the psychiatric wing. Korydallos houses some 2,300 inmates, with about 300 receiving some form of psychiatric care.  The association expressed disappointment over the order to destroy the pool, which it called part of an attempt "to change things for the better — viewing inmates at those facilities as human beings and not numbers."

Overcrowding at Greek prisons has worsened since the start of the country’s major financial crisis in late 2009, according to the Justice Ministry and the prison officers association, due to a spike in violent crime and prosecutions for tax-related offenses.

In addition to finding this story comparatively intriguing and also amusing, I think it is notable that the Greek equivalent of our prison guards' union expressed disappointment over the destruction of this fancy prison facility.

July 26, 2012 in Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

July 25, 2012

Massachusetts Gov asked to sign mixed sentencing reform bill

As reported in this local article, headlined "While called ‘balanced,’ sentencing bill lacks provisions sought by Gov. Patrick," the governor of Massachusetts now has on his desk a dynamic state sentencing reform bill.   Here are the details:

Advocates on all sides of the crime and sentencing debate continue to speak out about the habitual offender and sentencing reform bill on Gov. Deval Patrick’s desk, urging him to sign it, veto it or send it back to the Legislature with amendments.

In a WBZ-AM radio interview Monday night, Les Gosule, an activist who has pressed for a habitual offender law for about a decade following the rape and murder of his daughter Melissa, said parties disgruntled over issues left unaddressed by the legislation can pursue those initiatives anew in the next session beginning in January.  “I want the pen,” Gosule said, urging Patrick to put his signature on the bill.

Patrick has until Sunday to act on the legislation and proponents and opponents of the bill are mindful that formal legislative sessions end for the year at midnight next Tuesday. Patrick can sign the bill, veto it, or send it back with amendments.  An eleventh hour amendment from Patrick would force lawmakers to either deal immediately with the amendment or risk seeing their work on the bill go for naught....

While the bill last week cleared the House 139-14 and the Senate 31-7, its supporters and opponents since then have raised concerns about it, with some arguing it lacks crime-fighting tools sought by law enforcement and others arguing that it takes discretionary power in sentencing away from judges and would lead to prison overcrowding.

Among other provisions, the bill reduces mandatory minimum sentences for non-violent drug offenders and eliminates parole eligibility for certain violent offenders upon their third conviction.

While supporters say the bill represents the “balanced” approach Patrick called for, the legislation appears to lack key policies Patrick highlighted in his State of the State speech in January, giving extra weight to the idea that the bill might be returned with amendments....

The lack of judicial discretion in the bill’s habitual offender initiative drew criticism outside the capital Tuesday. “Who has discretionary power? The prosecutor,” said Rev. George Walters-Sleyon, who was joined by other Boston clergy and Boston City Councilor Charles Yancey in front of the Shaw Memorial on Boston Common Tuesday morning.  He said black people and Latinos comprise less than 17 percent of the state’s population but more than 55 percent of those serving time behind bars....

Criticism has also been levied from state prosecutors.  Six of the state’s 11 district attorneys signed onto a letter Friday criticizing the bill for leaving out provisions that would strengthen gun laws, and for including “no supervision” of drug traffickers released into the community.

July 25, 2012 in Mandatory minimum sentencing statutes, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Second Circuit rejects sex offender's effort to expand Padilla to undo plea

The Second Circuit handed down an interesting panel opinion earlier this week in US v. Youngs, No. (2d Cir. July 23, 2012) (available here), which gets started this way:

Defendant Mark Allen Youngs (“Youngs”) appeals from his judgment of conviction. On August 27, 2008, Youngs waived indictment and pleaded guilty in the U.S. District Court for the Western District of New York to a two-count Superseding Information that charged him with producing child pornography in violation of 18 U.S.C. § 2251(a) (“Count One”); and possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2) (“Count Two”). Youngs argues that his plea was defective because the district court did not advise him of the possibility of civil commitment as a sexually dangerous person at the end of his prison term. We hold that the district court was not required by due process or Rule 11 of the Federal Rules of Criminal Procedure (“Rule 11”) to advise Youngs of the possibility of civil commitment and affirm the conviction.

These paragraphs from the Youngs opinion explain why the Supreme Court's recent ruling in Padilla does not help carry the day for the defendant here (some cites and footnotes omitted):

While Youngs refers to Padilla as representing a “trend away from the distinction between direct and collateral consequences,” Appellant Br. at 22, Padilla’s holding was limited to the requirement of counsel to advise of deportation pursuant to their Sixth Amendment responsibilities.  These Sixth Amendment responsibilities of counsel to advise of the advantages and disadvantages of a guilty plea are greater than the responsibilities of a court under the Fifth Amendment.  See Libretti v. United States, 516 U.S. 29, 50-51 (1995) (holding that counsel, not the court, bears the responsibility of advising a defendant of the consequences of a guilty plea, apart from the “small class of rights” enumerated in Rule 11).  Thus, the Padilla Court's unwillingness to apply the direct/collateral distinction in the Sixth Amendment context does not demonstrate the Court’s intention to do away with that distinction entirely in the Fifth Amendment context....

While the Court in Padilla did not discard the direct/collateral distinction for due process, we recognize that Padilla may create some uncertainty as to the usefulness of categorizing certain consequences as either “direct” or “collateral” in the Fifth Amendment context. We nonetheless conclude that advising of the possibility of civil commitment under the Act does not fall within the scope of a district court’s due process obligations because the concerns expressed by the Supreme Court in Padilla as to deportation in the context of adequate counsel under the Sixth Amendment do not apply to such a remote and uncertain consequence as civil commitment.

In deeming deportation a “virtually inevitable” result of a noncitizen’s conviction for certain offenses, the Supreme Court pointed out in Padilla that the only way for such defendants to avoid deportation is the “possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses.”  Padilla, 130 S. Ct. at 1478, 1480.  Because deportation under these circumstances is nearly automatic, the Court concluded that deportation must be reviewed by counsel. Id. at 1482-83.  As discussed above, however, future civil commitment under the Act is not nearly as certain.  The Act provides discretion to the Government in choosing whom to certify for possible civil commitment.  Unlike deportation, the district court ultimately determines whether a defendant is civilly committed.  While the qualifying misconduct here is likely a predicate to consideration for civil commitment, once the Government decides to certify an inmate — Youngs or anyone else — for civil commitment, the Government will still have to establish by clear and convincing evidence that the inmate suffers from a condition that will make him sexually dangerous to others.  Thus, the likelihood of Youngs’s civil commitment is uncertain, both at the time of his plea and at the completion of his period of incarceration.

July 25, 2012 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

July 24, 2012

"For James Holmes, Death Penalty is Far from a Certainty"

The title of this post is the headline of this new Reuters article, which includes these excerpts:

James Holmes, the man charged in the Colorado shootings at the "Dark Knight" premiere, appeared in court for the first time Monday. Many observers said he looked confused and out of it....

While Colorado still has the death penalty, it will be interesting to see if Holmes will face it. The death penalty is rarely used in Colorado. Only one inmate has been executed since 1977, and only three inmates are on death row...

Generally, if someone is convicted of murder in the first degree in Colorado, that person faces either life imprisonment or the death penalty. At a separate sentencing hearing, a jury then determines if there are any aggravating factors that justify the death penalty or if there are mitigating factors that justify life imprisonment.

Typically, aggravating factors that favor the death penalty can include the defendant having a previous record of violent felonies, killing a police officer, killing by use of a bomb, especially cruel crimes, killing two or more people, and killing a child.

Mitigating factors that would favor life imprisonment can include the defendant's mind state (even if it doesn't reach the level of insanity as a defense to prosecution), unusual and substantial stress or duress, emotional state of the defendant, the defendant's clean criminal record.

James Holmes' case is unusual as there are so many aggravating factors that would favor the death penalty, and yet there are many mitigating factors that would favor life imprisonment. The key to Holmes' defense for both the crime and sentencing appears to be his mental health.

Recent related posts (with lots of comments):

July 24, 2012 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Philadelphia Monsignor gets years in prison for covering up clergy sexual abuse

As reported in this local Philadelphia article, headlined "Msgr. Lynn sentenced to three to six years in prison," today involved a noteworthy sentencing of a notable defendant in a sex abuse scandal. Here are the basics:

Msgr. William J. Lynn was sentenced to 3 to 6 years in state prison Tuesday by a judge who said he turned a blind eye while "monsters in clerical garb" sexually abused children, devastating families and shaking the Catholic church across Philadelphia and beyond.

Common Pleas Court Judge M. Teresa Sarmina said she believed Lynn was once the kind and selfless parish priest that his suppporters so passionately described. But as the aide Cardinal Anthony J. Bevilacqua tapped to investigate clergy-sex abuse, Lynn instead chose to protect the church over victims, she said. "You knew full well what was right, Monsignor Lynn, but you chose wrong," she told him.

The sentence, the first for a Catholic leader for enabling clergy sex abuse, fell just short of the maximum seven-year term Philadelphia prosecutors sought. It was hailed by victims and advocates who had complained church officials long eluded justice for accomodating or concealing priests' attacks on children.

Lynn's lawyers wanted a probation or a county jail term, and were disappointed at a sentence they said was disproportionate to the defendant and his crime, a single count of child endangerment. The Archdiocese of Philadelphia, which paid for Lynn's defense but has been largely silent about his case, also questioned the term. "We hope that when this punishment is objectively reviewed, it will be adjusted," it said in a statement....

Under state guidelines, Lynn will have to serve at least three years in prison before being eligible for parole. Even then, his chances at getting out after serving the minimum could be slim. The state parole board has been reluctant to grant early release to inmates convicted of sex-crimes involving children.

On June 22, a jury found Lynn guilty of endangering children by not removing a priest in the 1990s after discovering the cleric once molested a teen. That priest, Edward Avery, later sexually assaulted a 10-year-old altar boy. The jury acquitted Lynn of two other charges, including that he had conspired with church leaders to endanger children. But Sarmina declared him a risk to flee, revoked his bail and sent him straight to prison.

His sentencing hearing unfolded in a courtroom crammed with representatives from each of the groups touched by a decade of scrutiny on clergy-sex abuse in Philadelphia. They included prosecutors and investigators who long portrayed Lynn as a gatekeeper for the archdiocese.

Evidence they culled from secret church files and produced during his three-month trial showed that Lynn catologued dozens of abuse complaints between 1992 and 2004. But he was often slow to seek out other victims, share information with accusers, or press the cardinal to remove priests who had been accused or even admitted abusing children.

Lynn's relatives, friends and former parishioners also packed several rows in the courtroom, and hundreds more sent letters to the judge, defending him as an undeserving scapegoat for flaws of church leaders. A half-dozen took the stand and, at times tearfully, described the 61-year-old cleric as a kind, caring priest who mentored young clerics, consoled troubled mothers, rushed to the bedside of the dying and, at least later in his career, was vigilant about protecting children.

July 24, 2012 in Offender Characteristics, Offense Characteristics | Permalink | Comments (7) | TrackBack

Georgia Supreme Court grant stay on protocol litigation, not MR issues, for Warren Hill

As reported in this Atlanta Journal-Constitution article, the ""Georgia Supreme Court on Monday stayed the execution of condemned killer Warren Hill, but not for the reason his case attracted national attention." Here are the basic details:

For more than a decade, Hill’s lawyers have sought to halt the execution on grounds the 52-year-old is mentally disabled. But Monday, with less than two hours to spare, the state high court unanimously granted the stay to determine whether a recent change to Georgia’s lethal-injection protocol violates state law. The court agreed to hear Hill’s appeal of a Fulton County judge’s decision issued earlier in the day.

Separately, by a 6-1 vote, the court declined to hear Hill’s appeal challenging the state’s standard to determine whether an inmate is mentally disabled and thus ineligible for execution. Justice Robert Benham, the lone dissenter, said he would not allow the execution because Hill has been found to have a mental disability.

Hill is on death row for the 1990 bludgeoning death of a fellow inmate at a southwest Georgia prison. At the time, he was serving a life sentence for killing his 18-year-old girlfriend in 1985. Hill’s case attracted the attention of national and state advocacy groups for the developmentally disabled, who had asked for Hill to be allowed to serve the rest of his life in prison without parole. Former President Jimmy Carter and his wife, Rosalynn, had made a similar plea for mercy....

Hill learned his 7 p.m. execution had been called off after he had already eaten what he must have thought was going to be his final meal. He had decided to eat the same fare served Monday to inmates at the state prison in Jackson: bean and beef burrito, rice, corn, collard greens and cookies. He was given his pre-execution physical and had been taken to a holding cell near the death chamber.

“I’m just profoundly grateful the Supreme Court granted this stay,” Brian Kammer, one of Hill’s lawyers, said. “A terrible miscarriage of justice was avoided, for now.” It could be months before the state Supreme Court decides Hill’s appeal. The court’s self-imposed deadline calls for a decision by April 14 of next year, perhaps enough time for advocates for the developmentally disabled to ask the state Legislature to change the state’s burden of proof for “mental retardation” claims.

July 24, 2012 in Baze lethal injection case, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (9) | TrackBack

Is an insanity defense a constitutional right?

The question in the title of this post is prompted by this effective Washington Post article, which is headlined, "Supreme Court is asked to find that insanity defense is a constitutional right." Here is how it gets started:

There’s no doubt John Joseph Delling knew what he was doing. His carefully planned 2007 crime spree lasted weeks, covered 6,500 miles and culminated in two people dead and one seriously wounded.

He had his reasons, too. Delling, then 21, had become “a type of Jesus,” he later explained, and the men he attacked, two of them former classmates he had not seen in years, were stealing his “energy.” An MRI of his brain would have revealed the damage the men had already caused, he told authorities. “I had to defend myself,” he said.

As the nation confronts another act of unfathomable madness, Delling’s story is one chapter in a distressing and violent genre: the loner who tries to impress a movie star by shooting the president; the mother who drowns her children to save them from damnation; the black-clad shooter who seems to step from the movie screen to kill.

But Delling’s case presents an intriguing legal question as well. He committed his crimes in Idaho, which is one of only four states — Kansas, Montana and Utah are the others — in which a defendant may not use insanity as a defense to criminal charges.

Delling’s lawyers are now at the Supreme Court, asking the justices to rule that the Constitution mandates that such a defense be available for those who, because of mental illness, are not responsible for the mayhem they create. “For centuries, the moral integrity of the criminal law has depended, in part, on the insanity defense,” Stanford law professor Jeffrey L. Fisher wrote in a petition on Delling’s behalf.

Punishment is traditionally justified on the basis of an individual consciously choosing evil over good, Fisher wrote. “Laws such as Idaho’s abandon that basic tenet,” he said. Fisher contends that Idaho’s law violates the Constitution’s guarantee of due process of law, as well as the Eighth Amendment’s prohibition of cruel and unusual punishment.

All states and the federal government once allowed the insanity defense. But that changed with the public outrage over John W. Hinckley Jr.’s acquittal for reasons of insanity in his assassination attempt on President Ronald Reagan in 1981. Many states and the federal government reacted by shifting the burden of proving insanity to the defense. But five states, including Nevada, abolished the insanity plea.

The highest courts in four of those states have upheld the laws. The Nevada Supreme Court, however, struck down that state’s statute, saying that the insanity defense recognizes a “fundamental principle” that people cannot be convicted of crimes when mental illness prevents them from knowing that their conduct is wrong. The other state supreme courts have found otherwise, and so far, the U.S. Supreme Court has not found reason to accept appeals in any of those rulings.

Despite its prominence in television crime dramas, the insanity defense is rarely invoked and is successful only about a quarter of the time, according to the most widely quoted study of its use. In its last examination of the issue in 2006, the court ruled that Arizona could narrow the insanity defense to exclude some defendants. The justices said they did not need to address the more fundamental question of whether an insanity defense is constitutionally mandated.

Especially in the wake of the Supreme Court's recent juvenile Eighth Amendment jurisprudence, I could readily imagine SCOTUS saying severe mental illness must be considered at trial OR sentencing in some way.  And, whatever the Justices might think on the merits, this issue surelt seems worthy of its consideration.

July 24, 2012 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (7) | TrackBack

July 23, 2012

Notable crime and sentencing reform talk in latest speech from AAG Lanny Breuer

A few helpful readers made sure I did not miss this prepared speech delivered today by US Asistant Attorney General Lanny Breuer Speaks to the National District Attorneys Association Summer Conference. Here are just some of the scrime-and-punishment highlights from a speech that should be read in full.:

This morning, I submitted, along with a colleague, the Criminal Division’s annual report to the U.S. Sentencing Commission.   In that report, we argue that recent reductions in public safety spending mean that the remarkable public safety achievements of the last 20 years are threatened unless reforms are instituted to make our public safety expenditures smarter and more productive. In short, we are at a crossroads....

According to data from the Bureau of Justice Statistics, state and local criminal justice spending rose from approximately $32.6 billion in 1982 to $186.2 billion in 2006. Federal criminal justice spending increased even more dramatically, from approximately $4.2 billion in 1982 to $41 billion in 2006.

The net result of these reforms and investments has been a steep decline in violent crime across the country -- essentially the opposite of what occurred in the 1960s, ’70s, and ’80s.  According to the Bureau of Justice Statistics, approximately 10 million Americans were victims of violent crime in 1991, whereas less than half that many -- approximately 3.8 million -- were victims of violent crime in 2010....  The steep decline in violent crime over the past 20 years is a law enforcement success story worth dwelling on and worth celebrating.

The fiscal climate of the past several years, however, has led to significant cuts in state and local government spending, including on criminal justice initiatives.  At the Justice Department, our budget has remained essentially flat.... At the same time that federal criminal justice spending has stayed roughly flat, the number of federal prisoners has increased, and our prison and detention spending has increased along with it. This has resulted in prison and detention spending crowding out other criminal justice investments, including aid to state and local law enforcement and spending on prevention and intervention programs....

Our collective challenge, in my view, is to figure out how to control prison spending without compromising public safety, so that we can afford to fund other measures that are proven to lower crime rates, including prevention and intervention programs, and initiatives designed to assist prisoners reentering society with finding employment after they get out.  Indeed, I believe that our ability to increase the productivity of public safety spending of all kinds will largely determine whether we build on the reductions in crime that we’ve experienced since the early 1990s, or whether we see setbacks.

<P>There are no easy answers. Particularly in a time of declining public safety budgets, striking the right balance between prison and detention spending and other criminal justice spending requires thoughtful solutions.

The Justice Department recently put forward two legislative proposals that aim to maximize public safety while also controlling prison costs.

The first of these, the Federal Prisoner Recidivism Reduction Programming Enhancement Act, would allow prisoners who successfully participate in programs that have been demonstrated to reduce recidivism to earn an incentive of up to 60 days per year of credit toward completion of their sentence....

In addition, we have put forward the Federal Prisoner Good Conduct Time Act, which would increase the amount of time a federal prison inmate could earn off his or her sentence, for good behavior, by approximately seven days per year -- from roughly 47 days to 54 days....

These are just two proposals. But, as we told the Sentencing Commission this morning, federal sentencing policy should be reviewed systematically and on a crime-by-crime basis through the lens of public safety productivity.  Looked at through such a lens, it is clear that there are many areas of sentencing policy that can and should be improved.

July 23, 2012 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Federal prisoner claims need for medical care prompted escape

As reported in this AP article, a federal "inmate with Mafia ties is asking a judge to have a heart, claiming his own ticker is in such bad shape, he just had to escape from federal custody to seek help."  Here is more:

Derek A. Capozzi, convicted in a gangster-related killing in Massachusetts, said he kicked out the back of a U.S. Marshals transport van in April 2010 because he can't get the medical care he needs while behind bars.

Prosecutors said when he was on the lam for several days, he didn't seek any treatment. And when he was captured in a Dairy Queen parking lot in central Kentucky, marshals said, he had a different excuse for escape: "I'm pulling 53 years."

Capozzi is to appear before U.S. District Judge Joseph M. Hood on Monday in Lexington on a federal escape charge.  Capozzi is in prison for his role in the 1996 killing and dismemberment of 19-year-old Aislin Silva.  She was ordered killed by the leader of the Mafia-affiliated gang that Capozzi belonged to, so she wouldn't be able to cooperate with federal investigators, prosecutors said.

Capozzi claimed in court documents that several doctors have determined he needs to have his heart repaired after he was stabbed in the chest in 2008 while in a federal prison in California. "In the time leading up to his escape and subsequent to his apprehension, (Capozzi) experienced irregular heartbeats and restrictions of breath," his attorney, Steven Milner, wrote in court documents. Capozzi contends he has repeatedly been assured his heart problem will be addressed, but each time he is transferred to another state before anything is done.

The judge has not been persuaded by Capozzi's medical pleas, ruling the inmate may not argue that he tried to escape to seek medical attention....  Motions filed Friday indicate Capozzi intends to plead guilty but reserve the right to appeal the judge's rejection of his medical necessity defense.

Assistant U.S. Attorney Patrick Malloy has said Capozzi didn't seek medical help after his escape. "He hid out in a dentist's office," Malloy wrote in court documents.

July 23, 2012 in Offense Characteristics, Prisons and prisoners | Permalink | Comments (21) | TrackBack

July 22, 2012

Do US civil commitment procedures risk a "flagrant denial" of human rights?

The question in the title of this post is my response to this (slightly dated) article from the UK's Independent, which is headlined "Court blocks Shawn Sullivan's US extradition."  (Many thanks to the helpful reader who altered me to a story that developed the same day as the SCOTUS health care ruling).  Here is the basic back story:

US government attempts to extradite from Britain a man accused of child sex crimes were blocked by the High Court.... [as] judges sitting in London allowed an appeal against extradition by fugitive Shawn Sullivan, 43, after the American authorities refused to give an assurance that he would not be placed on a controversial sex offenders treatment programme in Minnesota.

Sullivan has been described as one of the US's most-wanted alleged sex criminals, and has also been convicted of sexually assaulting two 12-year-old girls in Ireland. His lawyers argued he could be declared "sexually dangerous" and placed on the US programme without a trial and with no hope of release.

Lord Justice Moses and Mr Justice Eady ruled on June 20 there was a real risk that, if extradited, Sullivan would be subjected to an order of civil commitment to the treatment programme in a "flagrant denial" of his human rights. The judges then gave the US government a last opportunity to provide an assurance that there would be no commitment order made.

Today Lord Justice Moses announced it had been confirmed by the Americans in a post-judgment note that "the United States will not provide an assurance", and Sullivan's appeal under the 2003 Extradition Act was therefore allowed. "The appellant will be discharged from the proceedings," said the judge.

Sullivan, who has joint Irish-US nationality, is wanted to stand trial for allegedly abusing three American girls in the mid-1990s. He was arrested in London in June 2010 while living with Ministry of Justice policy manager Sarah Smith, 34, in Barnes, south-west London. They married while he was held at Wandsworth Prison, before he was granted bail.

His counsel Ben Brandon said at a one-day hearing in April that no one had been released from the treatment programme, operated by the Department of Human Services in Minnesota, since it began in its current form in 1988. Commitment usually followed a person completing a prison sentence but a criminal conviction was not necessary for it to take place, said Mr Brandon. Aaron Watkins, appearing for the US government, told the court Sullivan did not satisfy the criteria for civil commitment but agreed no assurances had been given.

The judges ruled there was a real risk Sullivan would face commitment and a flagrant denial of his right not to suffer loss of liberty without due process, a right protected by Article 5.1 of the European Convention on Human Rights.

Lord Justice Moses said under the programme "there is no requirement that the offences took place recently nor, indeed, that the misconduct resulted in conviction, provided that the misconduct is substantiated by credible evidence". Mr Justice Eady said the risk of a flagrant denial of human rights was "more than fanciful".

The full ruling referenced in this news account is available at this link, and here are key passage from the ruling:

Civil commitment is unknown to European law, but is a process available in 20 states in the United States. Minnesota's law is said to be more draconian than many others.... [The] Office of the Legislative Auditor (OLA) for the State of Minnesota ... reports that the standard for commitment is relatively low, and many sexual offenders qualify for commitment.......[and] of the 600 committed since 1988, the evidence suggests that not one has been released, even on a conditional, supervised basis....

[T]he essential and justifiable purpose of these proceedings is to ensure that the appellant faces the trial he ought to face in respect of the serious allegations made against him. It is plainly in the interests of justice that he should face such a trial. Extradition is not being sought for the purposes of civil commitment....

[But] I conclude that there is a real risk that if returned Mr Sullivan will be the subject of an order of civil commitment ... [and] that there is a real risk that if extradited the appellant might be subject to an order for civil commitment within Minnesota and that that amounts to a risk that he would suffer a flagrant denial of his rights enshrined in [Art. 5 of the European Convention on Human Rights].

July 22, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentencing around the world, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack

Offense/offender distinctions in first-cut punishment reactions to Batman mass murder

Not surprisingly, my first post about the horrific mass murder in Colorado this past week has generated lots and lots of strong comments from all sorts of perspectives.  I do not wish to respond or even engage with all the commentary (which, helpfully, has been at least a bit more respectful and measured than seen in some comment threads here), but I do want to encourage a bit more precision in how people understand my first-cut reaction and also in how they discuss this case.  I hope to do so by using what I consider an important (and too rarely stressed) distinction between offense conduct and offender characteristics in the assessment of crimes and punishments.

I suspect all would agree that, short of crimes of genocide and mass terrorist killings, the offense conduct involved in the Batman mass murder is among the worst kinds of offenses one can imagine.  Without any apparent justification or provocation, an adult has slaughtered in cold blood a dozen innocent individuals and did so in a manner indicating he hoped to kill many more persons (both at the scene of the crime and back at his booby-trapped apartment full of explosives).  And though we still are learning more about the offense, we already know enough to make some first-cut, informed judgments about the offense conduct.

Meanwhile, I suspect all would also agree that, absent some magical comprehensive indisputable report about the shooter's life history and mental issues, the offender characteristics surrounding the Batman mass murderer could take a long time to understand and assess.  Though early reports about the shooter allow us to imagine various theories to explain his behavior, we must discover a whole lot more about his history and characteristics before we could even begin to make even first-cut, informed judgments about the impact and import of the shooter's offender characteristics. 

Finally, I suspect all would agree that fair, fitting and effective punishments must give some weight to both offense conduct and offender characteristics.  But there is great disagreement as to how much weight to give to these (often divergent) factors AND as to whether and when some factors can and should overwhelm others in the assessment of fitting punishments.  Putting all this together, it is not at all surprising that some are eager to reach first-cut punishment assessments based on the Batman mass murder mostly known offense conduct, while others are eager to resist any such assessments based on the shooter's mostly unknown offender characteristics.

July 22, 2012 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics | Permalink | Comments (100) | TrackBack