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August 11, 2012

Might Pennsylvania finally get serious about carrying out death sentences?

The question in the title of this post is prompted by this recent local story, which is headlined "Execution warrant issued for ex-Phila. man." Here are the details:

Thirteen years after Pennsylvania last executed a person, a 46-year-old former Philadelphia man has been ordered put to death by lethal injection Oct. 3. The death warrant for Terrance Williams -- convicted in a 1984 robbery-murder when he was an 18-year-old college freshman -- was signed Thursday by Gov. Corbett.

Experts say Williams' execution is likely to happen.  He has exhausted three appellate avenues through state and federal courts, and the U.S. Supreme Court rejected his last appeal June 29.

Williams' only legal hope is an emergency petition asking a Philadelphia judge to stay execution based on newly discovered evidence that Williams had been sexually molested throughout his life -- including for five years by the man he murdered.

Williams' lawyer, Shawn Nolan, assistant chief of the death-penalty unit at the Federal Defender's Office in Philadelphia, said the victim, Amos Norwood, 56, had a sexual relationship with Williams that began when Williams was 13.  And in January, Nolan said, Williams' admitted accomplice recanted his original testimony that Norwood was killed in a robbery.  In a Jan. 9 sworn statement, Marc Draper said Williams killed Norwood because of the abusive nature of their sexual relationship.  Police coerced him into saying robbery was the motive, he said.

None of that information -- including background on Williams' physical abuse by his mother and stepfather, and childhood sexual abuse by a neighbor and a teacher -- was presented to the Common Pleas Court jury that condemned Williams to death in February 1986.  "The jury didn't know about any of these things," Nolan said.  "And it's important.  A number of jurors have told us that if they had known about it, they wouldn't have sentenced him to death."

August 11, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (12) | TrackBack

"Marijuana Legalization Ballot Shows To Be Favored By Colorado Voters"

The title of this post is the headline of this notable new report on a notable new poll from the state which may soon become known as the highest state for a new reason.  Here is how the story starts:

Public Policy Polling released a new poll this week showing that likely voters in Colorado are in support of Amendment 64.

Colorado Amendment 64 is an amendment to Article 18 of the Colorado state constitution. If the amendment passes, it will permist a person 21-years of age or older to consume or possess limited amounts of marijuana.  The intent of the amendment is for marijuana to be regulated in a manner similar to alcohol.

The new survey presented by PPP was of 779 likely Colorado voters.  The Huffington Post reports that the survey, conducted between the dates of August 2nd and August 5th, shows that 47% would vote for Amendment 64 to pass if the election were held right now. 38% of the voters would vote against it, and 15% of voters remain uncertain in their decision.

Back in June, the PPP conducted a similar poll. The votes for passing Amendment 64 barely outpaced the opposition 46 percent to 42 percent.  Now two months later, support for the amendment has grown to 47-38.  According to PPP, the reason for this are the independent and young voters who are increasingly in favor of legalization.

As I have suggested in prior posts, Colorado is shaping up to be ground-zero for debate and discussion about pot policy.  These new polling data, and especially the apparent affinity that independent and young voters have for pot legalization, confirms my belief that national candidates in both political parties would be wise to develop ASAP a nuanced set of policy positions concerning how the federal government might respond if (and when?) this Colorado ballot initiative were to pass.

Some recent and older related posts on pot policies and politics: 

UPDATE:  Another state to watch on this front is Washington, and here is a notable new AP article on its marijuana reform ballot initiative.  The piece is headlined, "Legalizing marijuana could bring in $2 billion for Washington," and here is how it begins: "The state's latest financial analysis says legalizing and taxing marijuana could bring Washington as much as nearly $2 billion over the next five years — or as little as nothing."

August 11, 2012 in Drug Offense Sentencing, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (29) | TrackBack

August 10, 2012

Intriguing (and questionable) commentary on what Miller says and means

Via the ABA Journal, I just saw this new commentary authored by Erwin Chemerinsky discussing the Supreme Court's work in the Miller case and its potential impact.  Most of the commentary is a pretty standard discussion of the ruling, but some passages from the commentary struck me as interesting and somewhat questionable.  Here is how the piece starts along with the passages that caught my attention as worthy of some blog debate:

In Miller v. Alabama, the U.S. Supreme Court held in June that it is cruel and unusual punishment to have a mandatory sentence of life without the possibility of parole for homicide crimes committed by juveniles. At first glance, the decision seems to follow from other recent Supreme Court decisions that have limited the punishments imposed on juvenile offenders.

But in a key respect this case is different: previous cases prohibited the imposition of certain punishments under any circumstances, whereas Miller holds only that there cannot be a mandatory sentence. This distinction is going to matter enormously and raise important issues that are sure to be litigated....

Miller does not make it unconstitutional in all circumstances for a state to impose a sentence of life without parole for a homicide committed by a juvenile. Rather, it only holds that such a sentence cannot be mandatory.

This is going to require changes in the criminal justice system and pose difficult issues that must be resolved. First, if prosecutors wish to seek a sentence of life without parole for a homicide crime committed by a juvenile, there will need to be a proceeding to determine if this is warranted.

This will necessitate a penalty phase after conviction to make this decision. After the Supreme Court held that there cannot be a mandatory death sentence in homicide cases, the practice of the penalty phase developed for a determination of whether capital punishment is warranted based on the facts in each case. The same type of penalty phase will be required when life without parole is sought for a homicide crime committed by a juvenile.

In Ring v. Arizona, decided in 2002, the Supreme Court held that it is for the jury, not the judge, to decide in the penalty phase whether the aggravating factors sufficiently outweigh the mitigating circumstances to warrant a death sentence. Likewise, it will be for the jury to decide whether to impose a sentence of life without parole for a homicide committed by a juvenile....

[T]here is sure to be litigation over whether Miller applies retroactively. What about those now serving life without parole for homicides committed as juveniles? There is a strong argument that Miller should apply retroactively: It says that it is beyond the authority of the criminal law to impose a mandatory sentence of life without parole. It also would be terribly unfair to have individuals imprisoned for life without any chance of parole based on the accident of the timing of the trial.

On the other hand, if Miller is seen as just requiring a new procedure–a penalty phase before a sentence of life without parole is imposed for a crime committed by a juvenile – then it is unlikely to be applied retroactively. Procedural changes rarely apply retroactively. In fact, the Supreme Court held that Ring did not apply retroactively. In 2004’s Schriro v. Summerlin, the court concluded that Ring was a procedural change and not a "watershed" rule of criminal procedure that warranted retroactive application.

Ultimately, this is a question that will need to be resolved by the Supreme Court. My sense is that the Miller court did more than change procedures; it held that the government cannot constitutionally impose a punishment. As a substantive change in the law which puts matters outside the scope of the government's power, the holding should apply retroactively.

I see a whole lot I could nitpick about the analysis of Miller here, but for now I just want to get some reactions in the comments to what Chemerinsky seems to be saying Miller says or suggests.

August 10, 2012 in Assessing Miller and its aftermath, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

ABA Journal looking for nominations for its Blawg 100

I received via e-mail this request from the ABA Journal:

We're working on our annual list of the 100 best legal blogs, and we'd like your advice on which blawgs you think we should include.

Use the form at this link to tell us about a blawg ... that you read regularly and think other lawyers should know about.  Or if you don't have particular blawgs in mind but think blawgs from a certain practice areas should be represented in the Blawg 100, you can use this form to let us know. 

Send us a separate message for each blawg you want to support.  We may include some of the best comments in our Blawg 100 coverage. But keep your remarks pithy — you have a 500-character limit. 

Friend-of-the-blawg briefs are due no later than 7 p.m. ET on Friday, Sept. 7, 2012 [and] by all means tell your readers about Blawg 100 Amici and invite them to send us messages....

August 10, 2012 in On blogging | Permalink | Comments (0) | TrackBack

When and how might pot prohibition or federal pot policy enter the 2012 Prez campaign?

With the summer winding down and the political conventions not far away, I am already giving thought to whether, when and how crime and punishment issues could become part of the 2012 Presidential campaign.  One notable and distinguishing feature of recent big national elections has been the lack of engagement with domestic crime and justice issues, due in part probably to a combination of declining crime rates, declining differences in the policies of the major parties, and the focus on terrorism as the chief public safety concern to get national political attention in the wake of 9/11.

For various reasons, I expect Obama and Romney to both make the (wise? safe?) decision to avoid significant discussion of many serious domestic criminal justice issues.  Neither candidate has an exemplary record on these issues, but neither has an obvious political vulnerability on this front that the other might seek to exploit.  Thus, I will be very surprised if either campaign brings up crime and punishment issues or if there is any discussion of them at the conventions.

But, as the question in the title of this post suggests, I suspect it may prove very hard for the candidates to completely dodge some engagement with pot prohibition or federal pot policy over the next three months.  This is so for various reasons: (1) there are state pot legalization initiatives on the ballot in three states, including the swing state of Colorado, (2) Libertarian candidate Gary Johnson may work hard to get these issues into the campaign mix; (3) many local candidate are engaging with these issues in state campaigns (see, e.g., this recent story from Vermont); and (4) pro-legalization forces are very effective at pushing these issues when given a chance to post questions on YouTube or via other open avenues.

I doubt pot policy will ever become a "big" issue in the fall campaign, but I would be working hard on a nuanced answer to the many potentially tough marijuana questions if I were working for one of the campaigns.  Indeed, if Romney really needs and is looking for a "Sister Souljah Moment," as this recent New Republic commentary argues, he might consider going after Obama for seemingly breaking his 2008 campaign promise to leave states alone to do their own thing on medical marijuana fronts.  (Though were Romney to talk about reformed pot policies, we might now call this a Pat Roberson moment.)

Some recent and older related posts on pot policies and politics: 

August 10, 2012 in Campaign 2012 and sentencing issues , Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Pot Prohibition Issues | Permalink | Comments (7) | TrackBack

Man beats dog, gets long prison term and very long pet ban

LhasaThis local sentencing story from the Chicago Tribune, headlined "Man gets 30 months in prison for beating dog," caught my eye for a number of reasons.  Here are the basics:

A Des Plaines man pleaded guilty today to animal cruelty charges for beating a dog outside his house in June.  James Robert Wesolaski, 51, was sentenced to 30 months prison and ordered not to own a pet or live in a residence with any animal for 20 years.

Wesolaski, of the 1100 block of South Wolf Road, entered a guilty plea on felony animal torture and cruelty charges for pinning his small brown dog to the ground in front of his home in early June and punching the dog four or five times as hard as he could, prosecutors said.  After the beating ended, witnesses reported, Wesolaski picked up the limp dog by the scruff of his neck and took it inside, prosecutors said.

Police, called to the home by witnesses, found the dog with swollen, bleeding eyes and broken capillaries, which authorities said indicated the animal had been choked. They said that Wesolaski told police that he was having a bad day and beat the dog because it got outside....  Wesolaski was bleeding from apparent dog bites on his hand and face when officers arrived, authorities said.

Authorities also said Wesolaski's June arrest violated his probation from an incident earlier this year in which he admitted to trying to wrest a Taser from a police officer.

Wesolaski did not speak during today’s hearing at the Skokie Courthouse other than to say understood the plea deal.  He has been jailed since his arrest.  Judge Lauren Edidin told Wesolaski that his 20-year ban on having a pet is “a very serious part of this agreement.”  The judge also advised Wesolaski to get anger-management counseling and treatment for alcohol abuse.

The beaten dog, a Lhasa Apso named Teddy, has made a full recovery.  Teddy and Wesolaski’s other two dogs have been adopted into new homes, Cook County prosecutors said.

I am a huge pet lover, and I even had a beloved Lhasa Apso in my childhood home (her name was Cleo, if anyone cares).  Nevertheless, I cannot help but wonder if this stiff prison sentence goes a bit further than necessary, and I also wonder whether a two decade ban on living in a residence with any animal is really enforceable or constitutionally problematic.

For a little context here, recall that Michael Vick only got 23 months for his dog-fighting related federal convictions, all of which included far mor horrific acts of animal abuse than what (surely cute) Teddy endured here.   Perhaps there was evidence in the record in this case that Teddy suffered greatly, though the reported fact that the little guy "has made a full recovery" leads me to wonder whether the beating was all that extreme. 

Absent any other evidence of the defendant being an unusual or extreme threat to people, taking up a scarce and expensive prison cell for this dog-beating loser until 2015 seems like a relatively poor use of Illinois taxpayer resources.  The idea of anger-management classes and treatment for alcohol abuse seem wise, but I think Illinois would get more band for its incapacitation buck if it made this kind of rehabilitative programming required and monitored, rather than placing the defendant in an (often criminogenic) incarceration setting.

And does this sentence now mean that Illinois probation officials need to be checking in on Wesolaski until 2035 to make sure he is not living in any residence with a pet turtle or hamster?  If Wesolaski needs to be placed in an assisted living facility in his early 70s, will probation officers need to make sure nobody else in the facility has a pet parrokete?

I suspect there may be more to this story than this press report indicates, though I cannot help but wonder if prosecutors were uniquely aggressive based on Wesolaski's prior trouble with police or if his defense attorney was uniquely unable or unwilling to develop any mitigating evidence for sentencing.  (Indeed, as a joking aside, I am inclined to suggest that if Wesolaski's dog was less cute and cuddlely that a Lhasa, he might have tried to assert that his doggie assault was in self defense after he tried to corral the wayward pooch inside.)

Lest I be misunderstood, I do not mean or want to suggest that Wesolaski merits sympathy or that extreme animal cruelty should not be a criminal justice matter.  But I do mean and want to suggest that the sentencing response here to relatively minor crime, involving a significant prison term and behavior restriction, could do more harm than good (and will cost taxpayers a lot) because it does not appear either evidence-based or reasonably crafted to help ensure this defendant does not go on to do more harm in the future.

August 10, 2012 in Criminal Sentences Alternatives, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (46) | TrackBack

August 9, 2012

Is anyone eager to lament the death penalty as bargaining chip in Tucson shooting?

The question in the title of this post is prompted by this effective commentary piece by Debra J. Saunders, which is headlined "The Death Penalty and Jared Lee Loughner."  Here are excerpts:

Jared Lee Loughner pleaded guilty Tuesday to 19 counts involving a 2011 shooting in Tucson, Ariz., that left six dead and 13 others, including then-Rep. Gabrielle Giffords, wounded. As part of the deal, Loughner will receive a sentence of life without parole. Victims' families have been spared the rigors of a trial, and prosecutors can be sure that Loughner will never again endanger the general public. Thank the federal death penalty, which applied because Loughner shot people at a federally protected political event.

Defense attorney Gerald L. Shargel wrote on The Daily Beast that though it would have been a steep climb, Loughner could have won an insanity defense given his "long and tortured history of mental illness."  What could prosecutors have done to prevent litigation that would have spanned decades?  "Obviously, the prosecutors have to give something up in order to get the plea," Shargel told me.  Not that he sees this as a game, but "the only card to play was taking the death penalty off the table."

Giffords and her husband, Mark Kelly, issued a statement in support of the outcome.  "We don't speak for all of the victims or their families, but Gabby and I are satisfied with this plea agreement. ... Avoiding a trial will allow us -- and we hope the whole Southern Arizona community -- to continue with our recovery and move forward with our lives."

Death penalty opponents often argue that eliminating capital punishment in favor of life without parole would provide swifter resolution for victims' families, who would not have to endure years of appeals regarding pending executions.  Kent Scheidegger of the law-and-order Criminal Justice Legal Foundation says he likes swift resolution, too, but "it only happens when the death penalty's available."...

In the end, while Loughner was too mentally impaired to rate capital punishment, he also was too culpable to escape sure punishment for a well-planned killing spree.  Prosecutors took the death penalty off the table, and Loughner agreed not to appeal the results. Justice will be served.

Robert Hirschhorn, an attorney and jury consultant, does not support the death penalty, but he agreed that without it, there would have been no deal.  "You really want to use the death penalty as a bargaining chip?" Hirschhorn asked.

I don't see Giffords or Kelly complaining.

Very few folks, and especially the abolitionist community, are keen to celebrate or even acknowledge the plea bargaining benefits that the availability of the death penalty may provide in cases like the Tucson shooting (or the Unibomber case or for the Green River Killer or for so many other cases in which a plea to an LWOP sentence would not even be seriously considered by a defendant and his attorneys if death was not potentially on the table).

I am pleased that this commentary not only highlights, but actively praises, the role that the death penalty played in what seems like a just and effective (and certainly efficient) resolution of this high-profile mass murder case.  But maybe others, especially those in the abolitionist community, have a different view on this case and the role of the death penalty in its resolution.  Thus the question in the title of post, for which I welcome responses from all possible perspectives.

UPDATE after 17 comments:  A few commentors seem to view this post (wrongly) as asserting that the death penalty is always justified in order to always encourage guilty pleas in murder cases.  That is not the point of this post nor a claim I wish to make generally.  Rather, I mean via this post to wonder whether anyone is deeply troubled in the Loughner in particular --- or in other mass murder cases in which factual guilt is not reasonably in doubt --- that the death penalty has helped achieve what would appear to be a just and effective (and certainly efficient) resolution of a case that could otherwise have dragged on in court for decades (and cost taxpayers huge sums and give victims no real closure). 

In other words, this post does not ask whether the death penalty might sometimes be an unjust or misguided plea bargaining chip in some other settings, but rather asks if anyone is truly and deeply troubled that in the Tucson case the death penalty ended up playing this role.

August 9, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (37) | TrackBack

Graham crackers?: Florida judge "reduces" juve LWOP sentence to 100 years

The bad play on words in the title of this post is prompted by this fascinating local article from Florida headlined "Hillsborough judge gives 'juvenile' offender 100-year-sentence." Here are the details:

For a day of terror 24 years ago that started with near-murder and ended with rape, Jere Walker will not leave prison at least until he is an old man — even though the five life sentences he got when he was 17 have been ruled unconstitutional by the U.S. Supreme Court.

Walker, now 41, came before Hillsborough Circuit Judge Debra Behnke on Wednesday, asking her to let him put behind him the crimes he committed as a youth that he now realizes were "life-shattering" and "soul-crushing."  His victims included a former state attorney who went on to become an appellate judge, his wife and their widowed friend, and a Texas tourist who said rape ruined her life.

Behnke took only minutes to resentence. She said Walker's crimes occurred in the same year she became a judge — 1988.  Since then, she said, "I've seen thousands of cases, very few with facts like this. That's the only speech I have." She then gave Walker 100 years....

Because of a 2010 Supreme Court ruling that said juveniles who don't commit murder can't be given life sentences with no hope of parole, Walker had a chance of a new sentence and possible release.  His attorney argued that Walker already has served the equivalent of a 47-year sentence, factoring in gain time.  The attorney asked the judge to sentence Walker to two years of community control and allow him to live with his family. They would provide work for him at a pressure-cleaning business.

The prosecutor sought an 80-year sentence that he said would keep Walker in prison until at least his early 60s. Behnke's sentences Wednesday went beyond what the prosecutor sought.  She gave Walker two consecutive 30-year sentences for robbery and attempted first-degree murder.  She added to those a 40-year sentence for two counts of sexual battery.  They added up to 100 years.

To determine a release date, the state Department of Corrections now has to calculate how much gain time Walker has earned.  At the time of his convictions, the state allowed prisoners to earn up to 20 days per month in gain time, but he had disciplinary problems that could affect that. He also would have to behave for decades to come to earn more gain time.   Assistant State Attorney Douglas Covington said he could only estimate that Walker will remain imprisoned into his elder years.

Whether such long sentencings meet the Supreme Court's guidelines is being debated throughout the country.  "It's an evolving area of the law," said Tampa defense attorney John Fitzgibbons.  "Where is the line drawn between a sentence that conforms to the Supreme Court's holding that there must be a possibility of parole versus a sentence of years so lengthy that the defendant will die in prison?"  He predicted that question will be battled in courts for years to come.

August 9, 2012 in Assessing Graham and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (17) | TrackBack

"Engendering Rape"

The title of this post is the title of this new article on SSRN discussing prison rape policies and reform efforts. Here is the abstract:

This article highlights a systematic bias in the academic, correctional, and human rights discourse that constitutes the basis for prison rape policy reform. This discourse focuses almost exclusively on sexual abuse perpetrated by men: sexual abuse of male prisoners by fellow inmates, and sexual abuse of women prisoners by male staff. But since 2007, survey and correctional data have indicated that the main perpetrators of prison sexual abuse seem to be women. In men’s facilities, inmates report much more sexual victimization by female staff than by male inmates; in women’s facilities, inmates report much higher rates of sexual abuse by fellow inmates than by male or female staff. These findings contravene conventional gender expectations, and are barely acknowledged in contemporary prison rape discourse, leading to policy decisions that are too sanguine about the likelihood of female-perpetrated sexual victimization.

The selective blindness of prison rape discourse to counterstereotypical forms of abuse illuminates a pattern of reasoning I describe as “stereotype reconciliation,” an unintentional interpretive trend by which surprising, counterstereotypical facts are reconciled with conventional gender expectations. The authors of prison rape discourse tend to ignore these counterstereotypical facts or to invoke alternative stereotypes, such as heterosexist notions of romance or racialized rape tropes, in ways that tend to rationalize their neglect of counterstereotypical forms of abuse and reconcile those abuses with conventional expectations of masculine domination and feminine submission.

August 9, 2012 in Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (9) | TrackBack

August 8, 2012

Florida courts struggling with what Graham means for long juve term-of-years sentences

As reported in this local article, headlined "Courts ponder: When is juve’s long prison term effectively ‘life’?," a notable court ruling from Florida today spotlights an on-going struggle for state courts in the wake of Graham.  Here are the basics:

A district appeals court urged the state Supreme Court on Wednesday to weigh in on how long is too long when sentencing a juvenile for crimes other than murder, since the U.S. Supreme Court has said such kids can’t spend their entire lives in prison.

A three judge panel of the 1st District Court of Appeal noted that the lower courts have disagreed on just how long a juvenile would have to be sentenced for it to be a “de facto life sentence.”  The U.S. Supreme Court ruled in 2010 in Graham v. Florida that it was unconstitutional to sentence juveniles to life sentences for non-homicide crimes.

Since then, appeals courts have found that in some cases where the sentence wasn’t technically life, the juvenile would still be likely to spend life in prison, because the term of years was longer than their life expectancy.

That was exactly what the DCA found in the particular case at issue Wednesday. The court ordered a new sentence for a 16-year-old, Demahgio Adams, who robbed and shot someone multiple times – but without killing the victim -- and was given a sentence that would require him to serve at least 58 and a half years, meaning he wouldn’t be released until he is nearly 76.  That would exceed his life expectancy, the court said, finding the sentence a “de facto” life sentence that is unconstitutional.

But at least one other DCA in the state has held differently, so the judges said the state Supreme Court should decide whether the Graham opinion applies to long sentences that aren’t technically life sentences, and “if so, at what point does a term-of-years sentence become a de facto life sentence?”

The case referenced in this article, Adams v. Florida, No. 1D11-3225 (Fla. 1st Dist. Aug 8, 2012) (available here), makes for an interesting read and spotlights an issue that could face many state courts in the wake of Graham (and also now that Miller may raise the same kind of issue for any juves given very long mandatory sentences for homicide offenses).

August 8, 2012 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Ohio op-ed laments that capital cases "waste a lot of taxpayers' money"

Just in time for my return to Ohio after six weeks overseas, my own Columbus Dispatch has this new editorial about the costs of death penalty cases.  The piece is authored by Jack D’Aurora of The Behal Law Group, and here are excerpts:

When Mark W. Wiles was executed on April 8, Ohio was set to execute 11 more Death Row inmates, one every two months through January 2014. If you’re a social conservative, this is good thing, though you’re disappointed that Gov. John Kasich commuted the death sentences for Abdul Hamin Awkal and John J. Eley, who were scheduled to be executed this summer.

If you’re a fiscal conservative, you’re wondering why we spend so much time and money on the death penalty. Wiles was executed for a 1985 murder. Awkal and Eley committed murder in 1992 and 1986, respectively. Of the nine other inmates, four committed their crimes between 1983 and 1989, three between 1993 and 1994, and two in 1997 and 1998. That comes out to a minimum of 14 years between homicide and execution and an average of over 21 years. Another 133 Death Row inmates await execution dates.... I spoke with U.S. District Court Judge Gregory Frost about the time he and his staff spend on death-penalty cases. Like all federal judges, Frost presides over habeas corpus cases. To assist with the review of these cases, each of the three federal courts in the Southern District of Ohio employs a full-time law clerk (all licensed attorneys), and the court here in Columbus employs a part-time clerk, as well. The law clerks in Columbus handle about 25 cases, which may consist of anywhere from two boxes of documents to tens of thousands of pages.

Judge Frost also is involved in two other aspects of the death penalty. He reviews the very detailed protocol that begins 30 days prior to each execution and presides over a civil action concerning the death penalty, filed in 2004 on behalf of about 87 Death Row inmates....

Hearings are attended, at a minimum, by three assistant attorneys general, three attorneys for the inmate, the Lucasville prison warden, the director of the Department of Rehabilitation and Correction, counsel and other officials from the department, Frost and his two law clerks. These people all are paid by either the state or the federal government. Hearings can last from a few hours to multiple days....

Frost estimates that he and his staff spend 40 to 60 hours per month on some aspect of death-penalty cases.

The hidden cost of executing murderers reminds me of a commercial a few years back, where corporate executives are not allowed to leave a conference room until they devise a way to cut the company budget. After various ideas are tanked, one executive waives his hand over the binders and reams of paper that cover the table and asks, “How much does all this stuff cost?” The financial guy responds, “Time, people and material — it could be millions.” Everyone’s eyes open wide in astonishment.

Shouldn’t our state be equally concerned about time and money? Life sentences without parole would serve us much better, but we are fixated on a process that drains government resources. And to what advantage?

August 8, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Texas executes inmate after SCOTUS declines to intervene on Atkins issue

As reported in this AP article, a "Texas man convicted of killing a police informant was executed Tuesday evening after the U.S. Supreme Court rejected arguments that he was too mentally impaired to qualify for the death penalty."  Here is more from the article about this case and Texas's capital campaigns this year:

Marvin Wilson, 54, was pronounced dead 14 minutes after his lethal injection began at the state prison in Huntsville. Wilson's attorneys had argued that he should have been ineligible for capital punishment because of his low IQ.

In their appeal to the high court, his attorneys pointed to a psychological test conducted in 2004 that pegged Wilson's IQ at 61, below the generally accepted minimum competency standard of 70.

But lower courts agreed with state attorneys, who argued that Wilson's claim was based on a single test that may have been faulty and that his mental impairment claim isn't supported by other tests and assessments of him over the years.

The Supreme Court denied his request for a stay of execution less than two hours before his lethal injection began....

Wilson was the seventh person executed by lethal injection in Texas this year.  At least nine other prisoners in America's most active death penalty state have execution dates in the coming months, including one later this month.

August 8, 2012 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (17) | TrackBack

August 7, 2012

Pennsylvania Supreme Court expedites consideration of post-Miller juve LWOP issues

As reported in this AP article, "Pennsylvania's highest court is moving quickly to determine how the state should respond to a recent U.S. Supreme Court ruling that mandatory life-without-parole sentences for juveniles are unconstitutional." Here is more:

The state Supreme Court on Monday scheduled oral arguments for Sept. 12 in a pair of cases that will determine what to do about the hundreds of people already serving such sentences, as well as how to handle the issue going forward.

The defendants are Ian Cunningham, serving life for a second-degree murder conviction out of Philadelphia, and Qu'Eed Batts, convicted of first-degree murder in Northampton County.  Cunningham's case concerns lifers who have exhausted direct appeals and want to bring up the high court's ruling as a new matter.  In the Batts case, the justices directed lawyers to address what the appropriate remedy is, as a general matter, for those sentenced to life without parole....

The state Department of Corrections lists 373 lifers who were under age 18 at the time they were sentenced.  Others say the number of juvenile lifers is actually closer to 500, because the department's number excludes people who turned 18 before they were sentenced.  A March report by The Sentencing Project, an advocacy group in Washington, D.C., said Pennsylvania had the most juvenile lifers of any state, and by some estimates the national total is about 2,500....

The state prosecutors' association offered testimony at a state Senate hearing on the topic last month in Harrisburg, arguing that the Supreme Court ruling should not be retroactively applied and suggesting a new sentencing scheme in which juveniles convicted of first- or second-degree murder would be ineligible for release before age 60.

August 7, 2012 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

"Jared Lee Loughner Pleads Guilty to Federal Charges in Tucson Shooting"

The title of this post is the heading of this press release coming today from the U.S. Department of Justice.  Here are excerpts:

Jared Lee Loughner, 23, of Tucson, Ariz., pleaded guilty today in federal district court to charges stemming from the January 8, 2011 shooting outside a supermarket that killed six people and wounded 13 others.  Under the terms of the plea agreement, Loughner will be sentenced to life in prison with no eligibility for parole.

“It is my hope that this decision will allow the Tucson community, and the nation, to continue the healing process free of what would likely be extended trial and pre-trial proceedings that would not have a certain outcome.  The prosecutors and agents assigned to this matter have done an outstanding job and have ensured that justice has been done,” said Attorney General Eric Holder.  “In making the determination not to seek the death penalty, I took into consideration the views of the victims and survivor families, the recommendations of the prosecutors assigned to the case, and the applicable law.”

“Given the defendant’s history of significant mental illness, this plea agreement, which requires the defendant to spend the remainder of his natural life in prison, with no possibility of parole, is a just and appropriate resolution of this case,” said U.S. Attorney John S. Leonardo.  “I hope that today’s resolution of this case will help the victims, their families, and the entire Tucson community take another step forward in the process of healing and recovering from this sad and tragic event.”...

Through a plea agreement, Loughner pleaded guilty to 19 counts of the superseding indictment handed down March 3, 2011....  Under the terms of the plea agreement, Loughner will be sentenced to seven consecutive life sentences, followed by 140 years in prison....

Convictions for the attempted assassination of a member of Congress, the murder of a federal employee, and causing the death of a participant in a federally-provided activity each carry a maximum sentence of life in prison ( or death in the case of murder), a $250,000 fine or both.  A conviction for the attempted murder of a federal employee carries a maximum penalty of 20 years in prison, a $250,000 fine or both. A conviction for injuring a participant in a federally-provided activity carries a maximum penalty of 10 years in prison, a $250,000 fine or both.

In determining an actual sentence, U.S. District Judge Larry A. Burns will consult the U.S. Sentencing Guidelines, which provide appropriate sentencing ranges.  The judge, however, is not bound by those guidelines in determining a sentence.  Sentencing is set before Judge Burns on November 15, 2012, at 10:00 am in Tucson.

August 7, 2012 in Celebrity sentencings, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Will women be the key swing voters for state marijuana ballot initiatives?

The question in the title of this post is prompted by this interesting local story from Washington, which is headlined "A mellow $1 million marijuana campaign."  Here are excerpts:

A group supporting Initiative 502, which would legalize, tax and regulate sales of marijuana in Washington, is up, up and away with a $1 million advertising campaign and a 30 second spot you’ll see on early morning TV news.  “It’s definitely targeted to women who tend to be less supportive of marijuana reform than men,” said Alison Holcomb, coordinator for the New Approach Washington campaign.

The marijuana campaign is mellow, featuring a woman looking into the TV screen and saying: “I don’t like it personally, but it’s time for a conversation about legalizing marijuana.  It’s a multimillion dollar industry in Washington State and we get no benefit. What if we regulate it?”  The end message:  A “new approach” to cannabis is needed.

New Approach is dealing with a tricky political climate ... [and] the country is polarized. Law enforcement has become addicted to its “War on Drugs” despite evidence that the war is being lost.  The 1930′s-vintage movie “Reefer Madness” is still taken seriously, and the careers of students, park rangers and Olympic athletes get permanently blighted if they test positive or admit to taking a toke.  At the other end of the spectrum are ... “Free the Weed” advocates, the pothead constituency deeply suspicious of city attorneys and former FBI agents and police chiefs signing on to the legalization cause....

New Approach Washington has been laying groundwork for more than a year.  At last check with the Washington State Public Disclosure Commission, it has raised $2.95 million and spent $1.4 million.  Still, both major candidates for Governor — Republican Rob McKenna and Democrat Jay Inslee — have come out against Initiative 502.  So have several major police organizations.

As regular readers know, I find the on-going legalization campaigns in a few Western states to be fascinating and useful for sentencing fans to follow closely.  The local, state and national mood concerning the pros and cons of the drug war are always difficult to guage, and I expect the advertising and polling over theese initiatives to provide an important window into what the most passionate advocates (and monied interests) view as key elements in the broader drug war battlefield.

Some recent and older related posts on pot policies and politics: 

August 7, 2012 in Drug Offense Sentencing, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (18) | TrackBack

"Child Pornography and the Restitution Revolution"

The title of this post is the title of this new paper by Cortney Lollar now available via SSRN.  Here is the abstract:

Victims of child pornography are now successfully seeking restitution from defendants convicted of watching and trading their images.  Restitution in child pornography cases, however, represents a dramatic departure from traditional concepts of restitution.  This Article offers the first critique of this restitution revolution.

Traditional restitution is grounded in notions of unjust enrichment, and seeks to restore the economic status quo between parties by requiring disgorgement of ill-gotten gains. The restitution being ordered in increasing numbers of child pornography cases does not serve this purpose.  Instead, child pornography victims are receiving restitution simply for having their images viewed.  This royalty-type approach to restitution amounts to a criminal version of damages for pain and suffering and loss of enjoyment of life.  To justify this transformation of restitution, courts have come to rely on several commonly accepted, but flawed, theories about the impact of child pornography.  Because these theories are unsupported by social science or law, they divert attention from remedies that could better alleviate the harms of child pornography.

Rather than restoring victims and encouraging them to move forward with their lives, restitution roots victims in their abuse experience, potentially causing additional psychological harm.  Restitution in its new form also allows the criminal justice system to be a state-sponsored vehicle for personal vengeance.  This Article calls for an end to the restitution revolution, and proposes several alternative approaches that better identify and address the consequences of child pornography.

August 7, 2012 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (4) | TrackBack

August 6, 2012

Will Texas go forward with scheduled execution of inmate with recorded IQ of 61?

Last month, Georgia was poised to execute Warren Hill, who has a pretty strong claim that he is mentally retarded and thus ineligible for execution under the Supreme Court's 2002 Atkins ruling.  That execution was ultimately stayed based on concerns about Georgia's lethal injection protocols (some blog reporting on the case can be found here and here and here).  Now, as reported in this detailed article, Texas is the state seemingly ready to execute a condemned defendant  who who has a pretty strong claim that he is mentally retarded.  Here are the basics:

Death row inmate Marvin Wilson's attorneys petitioned the U.S. Supreme Court to stay his execution, set for Tuesday, arguing the convict's date with a lethal injection runs contrary to a 2002 ruling by the nation's highest court.  The catch, and what Wilson's lawyers hope will spare his life, remains his I.Q. of 61 coupled with a medical diagnosis of mental retardation.

Texas' counter?  Wilson is wholly dissimilar to a fictional character created by novelist John Steinbeck.

The 54-year-old was convicted in 1992 of murdering a police drug informant.  His planned execution is becoming another linchpin in the exhaustive battle over capital punishment, this time calling into question who or what exactly determines "mental retardation."...

The [Supreme Court's Atkins] decision lacked a formal definition for "mentally retarded," which the Supreme Court intentionally ignored to avoid codifying a means to test mental retardation.  "The Supreme Court doesn't like to micromanage," said Richard Deiter, Executive Director of the Death Penalty Information Center.  "Still, it's not a blanket recipe for 'do anything want.'"...

The Texas Court of Criminal Appeals ... used the absence of strict orders as license to set a threshold which ignores recognized medical testing; ... it concocted seven criteria called "Briseno factors," which were based upon the character Lennie Small from Steinbeck's novel Of Mice And Men.  In short, the measuring stick allows executions to be carried out if a judge determines the crime was complex enough to require forethought, planning and intricate execution.  Wilson met all the criteria....

During his stint in prison, Wilson was subjected to a battery of tests to determine the borders of his mental limitations, including a 2004 report by Dr. Donald Trahan with the Center for Behavioral Studies in Texas.  "It is evident that the deficiencies in general intelligence and adaptive behavior have been present since early childhood and well before the age of 18," Trahan wrote.  "My evaluation of Mr. Marvin Lee Wilson reveals that he does meet the criteria for a diagnosis of mild mental retardation."

His ultimate medical I.Q. of 61 puts him in the lowest percentile of the population, with the literacy level of a 7-year-old.  "If Wilson is executed on Tuesday, Texas will be rendering the US supreme court's Eighth Amendment prohibition on the execution of mentally retarded prisoners a prohibition in name only," said Lee Kovarsky, Wilson's lawyer...

Several factors could change Wilson's fate over the next 24 hours.  The Supreme Court could offer a stay of execution, a lower court could push back as well.  Texas Gov. Rick Perry could also intervene -- though the prospect remains unlikely.  He vetoed a bill that would have banned the execution of mentally retarded inmates, as well as defined the term, in 2009.

August 6, 2012 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Split Eighth Circuit opinion explains when plotting to kill an informant does not allow obstruction enhancement

Federal sentencing practitioners get accustomed to defendants being subject to an obstruction of justice enhancement under the federal guidelines for all sorts of seemingly tame behavior.  Given that reality, today's ruling by a split Eighth Circuit panel in US v. Galaviz, No. 11-2396 (8th Cir. Aug. 6, 2012) (available here) caught my eye because it reverses such an enhancement despite the defendant's not-so-tame behavior.   Here is the heart of the majority's ruling in Galaviz:

The district court found on a sufficient record that while in prison, after pleading guilty, Mr. Galaviz engaged in a conspiracy to murder Ubeldo Lopez-Gonzalez, who was a confidential informant in the case.  The district court also found, again on a sufficient record, that Mr. Galaviz's motive for entering the conspiracy was to retaliate against Mr. Lopez for his cooperation with the government.  But because Mr. Galaviz had already pleaded guilty, he could not have intended to obstruct justice "with respect to the instant offense" by plotting to kill Mr. Lopez unless he thought that Mr. Lopez was going to testify against him at sentencing, and that indeed was the government's theory in the first brief that it filed in this court.  The infirmity of this position is that the record will not support a finding that Mr. Galaviz had reason to think that Mr. Lopez would be a witness against him at sentencing.

Taking a different view, the dissenting opinion by Judge Smith in Galaviz gets started this way:

The majority holds that the district court erred in finding that Galaviz obstructed justice by participating in a conspiracy to kill the government's confidential informant and principal witness in the prosecutorial process used to convict Galaviz and who provided testimony at Galaviz's subsequent sentencing hearing. The court thus interprets U.S.S.G § 3C1.1 in such manner that it cannot be used to enhance a defendant's sentence for obstruction of justice for conspiring to murder the government's principal witness because Galaviz's motive was simply retaliation for the witness being a snitch and 1 not an effort to prevent the witness's availability for his pending sentencing hearing. Because I believe that the district court did not err in finding that Galaviz's attempt to kill the government's confidential informant amounted to an obstruction of justice, I respectfully dissent.

August 6, 2012 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Seventh Circuit panel rejects unreasonableness claim from sex offender given 30-year sentence

A Seventh Circuit panel has an intriguing discussion of child sex offense sentencing in the course of affirming a 30-year prison term in US v. Reibel, No. 11-3416 (7th Cir. Aug. 6, 2012) (available here). Here is how the per curiam opinion gets started:

Cory Reibel sexually molested his girlfriend’s three-year-old daughter and took pornographic photos of her.  He pleaded guilty to two counts of producing child pornography in violation of 18 U.S.C. § 2251(a) and received concurrent prison sentences of 360 months, the bottom of the Guidelines range but also the statutory maximum. Reibel argues on appeal that his sentence is unreasonable in two ways: it punishes him as severely as the worst child pornographers, and the judge based it on mere speculation about sex offenders and their victims rather than on evidence.  But we have repeatedly rejected the idea that the maximum sentence for child-pornography offenses must be reserved for the worst offenders, and the district judge had sound reasons for choosing the sentence he imposed. We therefore affirm the district court’s judgment.

Among other notable portions of the Reibel ruling, I found these passages especially interesting:

Reibel next challenges the reasonableness of his sentence by arguing that the district judge based it on mere speculation about sex-offender recidivism rates and the severity of damage suffered by sex-abuse victims rather than on dependable evidence....  In support of this contention he provides quotations from his sentencing hearing and cites several sex-offender studies finding comparatively low recidivism rates for first-time offenders, for perpetrators who were not themselves victims of sexual abuse, and for men who molest female rather than male children.  He also cites a study finding that the psychological repercussions of sexual abuse are influenced by the victim’s age at the time of the abuse (younger children tend to recover faster) and its duration, which in this case was relatively short thanks to the victim’s conscientious mother.

We are unpersuaded that the judge based Reibel’s sentence on speculation and ignored evidence that should have been taken into account....  Besides, to tie sex offenders’ sentences to the statistics Reibel presents in his brief would be repugnant: offenders would be able to secure a shorter sentence by molesting girls rather than boys; offenders who were once victims would receive longer sentences than those who were not; and abusers of young children would receive shorter sentences than those whose victims were older.

August 6, 2012 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Notable report on "decarceration laboratory" taking place in California

Today's New York Times has this interesting new article, headlined "In California, County Jails Face Bigger Load."  The piece discusses how one big county in the largest state in the US has been responding to the Plata ruling, which has required California to reduce its prison populations to remedy  the Eighth Amendment problems created by severe overcrowding.  Here is an excerpt:

Ordered by the United States Supreme Court to reduce severe overcrowding in its prisons, California began redirecting low-level offenders to local jails last October in a shift called realignment. Its prison population, the nation’s largest, has since fallen by more than 16 percent to 120,000 from 144,000; it must be reduced to 110,000 by next June.

Counties with already tight budgets are scrambling to house the influx of newcomers in facilities that were never designed to accommodate inmates serving long sentences, like a man who began serving 15 years for fraud recently in the Fresno jail.

Fresno County — a sprawling agricultural area surrounding the city, which is also facing financial problems and became a punch line for Conan O’Brien recently — is adding 864 beds to its chronically overcrowded jail. Under a longstanding federal consent decree that requires the Sheriff’s Department to release inmates when the jail reaches capacity, 40 to 60 people are let go early every day.

In a move watched by other states also facing prison overcrowding, California is handing its 58 counties money and leeway to decide how to handle the new arrivals. Liberal communities like San Francisco are using a greater share of the state money on programs and alternatives to incarceration. But most counties, particularly here in the conservative Central Valley, have focused on building jail capacity.

That troubles organizations on both sides of the political spectrum. Sheriff Keith Royal of Nevada County, the president of the California State Sheriffs’ Association, said members were worried about their capacity to provide “adequate treatment” in jails and about “litigation at the location level.” The American Civil Liberties Union warned that instead of making fundamental improvements to the criminal justice system, many counties risked simply repeating the state’s mistakes by reflexively putting people behind bars....

Allen Hopper, a lawyer with the A.C.L.U. who co-wrote a study on the shift to jails, said the population at county jails could be significantly reduced by overhauling pretrial procedures. Many inmates, who present no risk, remain in jail simply because they cannot afford bail, he said, adding that alternatives like electronic monitoring and day reporting could free up jail space and save counties money.

But in counties where elected officials are afraid of appearing soft on crime, such alternatives are particularly sensitive. “Everything is political,” said Sheriff Margaret Mims of Fresno County. Sheriff Mims said she had become “less optimistic” about the shift to jails because of rising crime in the county, including burglaries and car thefts. Though law enforcement officials acknowledge that rising crime cannot be linked directly to the realignment policy, they say people engaging in nonviolent offenses like property crime no longer fear being sent to prison.

Despite Fresno County’s conservative attitude toward crime, the policy shift has fueled a debate about alternatives to incarceration by grouping various agencies in the committee overseeing the change, said Emma Hughes, a criminologist at California State University, Fresno, who is working as a consultant for the county.

Linda Penner, the chief probation officer and chairwoman of the realignment committee, said that having secured money to reopen two jail floors, the committee had the political room to approve the $848,000 for the rehabilitation program. “Do I think we’re all getting on the same page in reckoning with the fact that we have to create alternatives to detention?” she said. “Yes.”

This piece, and other like reports on what has been going on in California over the past year since the Plata ruling, confirms my belief that it will likely take a lot of time and a lot of sophisticated reseach before we will be able to reach any confident conclusions concerning the true impact of the Plata ruling and the ways in which California's political and legal system has responded.

August 6, 2012 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack