August 25, 2012
Following the money in ballot contests over marijuana legalizationThis new Reuters article, headlined "Legal marijuana backers raise $3 million in two US states," reports on the state of the ballot race (and the place of money in the race) concerning marijuana legalization. Here are excerpts from the piece:
Campaigns to become the first U.S. states to legalize marijuana for recreational use in Washington and Colorado have raised $3 million ahead of a November vote, far outpacing the opposition.
Proponents of pot legalization in Washington state have raised nearly $2 million since the initiative qualified for the ballot in January, and about $1 million in Colorado since its measure earned a place on the ballot the following month, according to the most recent state campaign figures.
In Oregon, where a voter referendum qualified in July, the legalization campaign reported less than $1,000 in contributions. All three state measures go on the ballot in November, when Americans vote for president and other offices.
With their war chests, backers of legalization drives in Washington state and Colorado have already bought television ads in a bid to convince voters, especially those who have never smoked pot, of merits of legalizing and taxing it....
"If one of these initiatives wins, it will really be a breakthrough," said Ethan Nadelmann, executive director of the Drug Policy Alliance, which seeks alternatives to the current U.S. policy to combat drug use. "And in the end, just as there has been a federal-state conflict involving medical marijuana, we anticipate there will be similar conflicts when states begin to legally regulate marijuana like alcohol," he said. "But the only way we think change can happen is through this process."
Polls indicate support in Colorado and Washington for legalizing pot. A July poll by Survey USA of 630 registered voters in Washington state said 55 percent backed the marijuana legalization ballot measure. The margin of error was 4 percent. Rasmussen Reports said its June poll of likely Colorado voters showed 61 percent supported legalizing and regulating pot. The survey had 500 respondents and a margin of 4.5 percent.
Billionaire Peter Lewis, the Ohio-based chairman of Progressive Insurance who helped finance successful state-level campaigns for medical marijuana, has emerged as the Washington state legalization measure's largest supporter with total contributions this year of $875,000.... Drug Policy Action, a group related to New York-based Drug Policy Alliance, has given $600,000 this year to the Washington legalization campaign.
The Washington, D.C.-based Marijuana Policy Project has given the two registered groups behind the Colorado campaign most of their roughly $1 million in funds, state records show. Lists of donors to Marijuana Policy Project and Drug Policy Action are not publicly available....
[O]pponents of legalization have so far fallen short in fundraising. State campaign figures show that Smart Colorado has raised the most of any anti-legalization group, but its 2012 total stands at less than $40,000.
Holcomb said her pro-legalization group bought more than $1 million in TV air time in Washington state this month. In Colorado, the Campaign to Regulate Marijuana Like Alcohol spent $800,000 for fall season television ads, said Mason Tvert, co-director of the group.
Gambia gets real serious about carrying out death sentences real fastAs reported in this AP article, the African country of Gambia has just completed nine executions and it gearing up for dozens more. Here are the details:
Gambia has executed nine convicted criminals, the Civil Society Associations reported Saturday as Amnesty International warned that dozens more on death-row are under imminent threat as the West African nation carries out its first death sentences in 27 years.
President Yaya Jammeh vowed earlier this month to execute all inmates sentenced to death "to ensure that criminals get what they deserve, that is, those who killed are killed and those who deserve to be put away from the society are put away from the society in accordance with the law."
A government statement issued late Friday night said "All persons on death row have been tried by the Gambian courts of competent jurisdiction and thereof convicted and sentenced to death in accordance with the law. They have exhausted all their legal rights of appeal as provided by the law."
It added "the peace and stability of our beloved nation as regards to protection of the lives, liberty and property of individuals must at all cost be preserved and jealously guarded."
Eight men and one woman were removed from their prison cells Friday night and executed, London-based Amnesty reported, quoting "credible sources." It said two of those executed are believed to be foreigners from Senegal.
A barrage of protests met the move, with expressions of shock coming from the African Union, the Economic Community of West African States, the French and Nigerian governments and human rights groups. It was not clear how the prisoners were executed, but Gambia's constitution says executions should be by hanging. "What is however clear is that inmates were rounded up at 9.30 p.m. Thursday August 23 and that by the morning of August 24, the bodies were actually lying in the Mile Two Prison yard," the Civil Society Associations of Gambia reported.
Amnesty warned "more persons are under threat of imminent executions today and in the coming days." Amnesty said the executions are the first in Gambia since 1987. Gambia reinstated the death penalty in 1995 but had not executed anyone, former minister Omar Jallow has told The Associated Press.
Amnesty said there were 47 inmates on death row before Friday's executions: government figures put the number at 42 men and two women and another three men reportedly also received the death sentence this year.
Capital punishment can be imposed in Gambia for murder and treason. Three of those reportedly executed had been sentenced for treason, Amnesty said. It's not known how many of those on death row have been sentenced for alleged coup-plotting, a treasonable offense that could indicate Jammeh is using the executions to get rid of political opponents.
Perhaps those deeply troubled by how California officials have handled its (now seemingly dormant) death penalty lately ought to try to get officials in Gambia to give some instructions to capital punishment colleagues on a very different west coast.
August 24, 2012
"Do the justices really deserve a three-month vacation?"As I try to keep up with the sizeable number of criminal law opinions that the federal circuit courts hand down this time of year, the question in the title of this post caught my eye as the sub-heading of this notable Slate commentary by Amanda Frost. Here are excerpts:
It’s August. Do you know where your Supreme Court is?
A good bet is that none of the nine justices are in Washington, D.C. As Chief Justice John Roberts once quipped: “Only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” (Roberts made that statement while serving as an attorney in the Reagan Administration.) The justices are free to leave town as soon as they issue their last decision of the term in late June, and they are usually not to be found back in the nation’s capital until the first Monday in October — the official start of the new Supreme Court term. Many of the justices use this chunk of free time to travel, lecture, write books, and teach, among other activities. This summer is no exception....
Should the leaders of the judicial branch be in a position to use “summer” as a verb, particularly when they take advantage of the time off to moonlight as law professors? Or is the summer break a harmless perk?
Either way, the summer recess comes with some significant costs. Because the justices do not meet to decide whether to grant or deny review in cases during the summer months, thousands of legal petitions pile up during their absence.... The impending summer recess can also force the court to rush decisions without taking the time to articulate their reasoning....
The three-month break is particularly galling at a time when the Supreme Court decides fewer cases than any other court in modern times. In recent years, the court has heard an average of about 80 cases a term, which is half the number they heard 20 years ago and makes up fewer than 1 percent of the approximately 10,000 review petitions they receive. The rest of the federal judiciary does not get the same extended summer vacation, and they handle a great deal more cases. It is also a little disconcerting that many of the justices use the time off to generate outside income. Shouldn’t their time be filled by the job they are paid (by all of us year-round working taxpayers) to do?
Of course, the summer recess probably offers some important psychological benefits. Hopefully, the justices use the break to reflect on the previous term and their role in our system of government. Visits to foreign countries will likely broaden what otherwise might become parochial perspectives....
Still, it’s worth remembering that the justices did not always have it so good. In 1789, Congress required the very first Supreme Court to meet in August for the start of its term — and this in an era without air conditioning. Worse, that Congress assigned the justices double-duty as circuit court judges: In addition to deciding cases as members of the Supreme Court, the justices were required to “ride circuit” around the United States to hear cases in their capacity as lower court judges. Circuit riding continued for the next 100 years.
So perhaps Congress should abolish the court’s three-month recess, and maybe even reinstate circuit riding, as a few scholars have already suggested. Of course, these hardships will make a job on the Supreme Court less attractive than it is today. That was certainly the case in 1801, when President John Adams was turned down by his first choice for chief justice before finally convincing John Marshall to accept the post. (Former Chief Justice John Jay declined Adams’ nomination to serve in that position again, saying that the office lacked “dignity.”) If nothing else, abolishing the justices’ summer vacation might lead to greater turnover on the high court — a possibility that might appeal to Democrats, Republicans, and any justice who’d rather spend more time on the Mediterranean.
Stressing AEDPA deference, Eleventh Circuit upholds Florida law requiring defendant to prove lack of mens rea for drug crimeLong-time readers may recall the news last year of a federal habeas ruling in Shelton v. Florida DOC, No. 6:07-cv-839-Orl-35-KRS (M.D. Fla. July 27, 2011), finding unconstitutional the operation of Florida's criminal drug laws because it made lack of mens rea an affirmative defense for a defendant to prove rather than require state prosecutors to prove a defendant was knowingly involved in an illegal drug transaction. Today's follow-up comes via this Eleventh Circuit ruling in Shelton, which starts this way:
A Florida state prisoner petitioned for federal habeas relief, challenging the constitutionality of a Florida statute that altered the mens rea requirement for state drug offenses. The district court, finding a due process violation, granted relief. We conclude that the state court did not unreasonably apply clearly established federal law, as determined by the U.S. Supreme Court, and reverse.
Here is a segment of the Eleventh Circuit panel's substantive analysis:
In order for Shelton to prevail here, he must be able to point to Supreme Court precedent clearly establishing that the Due Process Clause forbids the partial elimination of mens rea as an element of crimes analogous to those in Florida’s Drug Abuse Prevention and Control Act, beyond any possibility for fairminded disagreement. That is a tall order, and as it happens, an impossible one....
[A] fine-grained parsing of Supreme Court precedents is unnecessary to resolve our constricted inquiry. One very general principle can be distilled from the Court’s cases in this area: legislatures have “wide latitude . . . to declare an offense and to exclude elements of knowledge and diligence from its definition,” but they still must “act within any applicable constitutional constraints” when defining the elements of a criminal offenses. The Court has not drawn lines around this principle sufficient to dictate a particular result of the Florida court here, especially considering that Florida’s elimination of mens rea was only partial. The Supreme Court has acknowledged that its work in this area has only just begun, noting twice that no court “‘has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not.’” Absent a Supreme Court case directly on point or a case so closely analogous that fairminded jurists would agree that its rule must extend to the present scenario, the Court’s acknowledgment of uncertainty in this key principle effectively answers the AEDPA inquiry in Florida’s favor.
Today, we need not march through all Supreme Court cases to prove the negative that the Supreme Court has never addressed Shelton’s issue head-on, much less addressed it in his favor. It suffices to note that only once, in Lambert v. California, has the Supreme Court held a criminal provision unconstitutional under the Due Process Clause for failing to require sufficient mens rea. Lambert was an as-applied challenge to a Los Angeles municipal ordinance requiring felons to register with the city. The Court held that because failing to register is “wholly passive,” the defendant lacked any notice whatsoever of her wrongdoing, violating her due process rights. The actions criminalized by the Florida Act as amended are sufficiently distinguishable — requiring affirmative acts of selling, manufacturing, delivering, or possessing, in addition to knowledge of the presence of the substance, all with an affirmative defense of lack of knowledge available — that we cannot say the state courts were unreasonable not to import Lambert’s reasoning into this very different context.
Second Circuit discusses right to be physically present at sentencingThe Second Circuit issued a notable opinion today in US v. Salim, No. 10-3648 (2d Cir. Aug. 24, 2012) (available here), discussing the right to be present at sentencing. Here is how the opinion begins:
Defendant-Appellant Mamdouh Mahmud Salim appeals from a judgment of the United States District Court for the Southern District of New York (Deborah A. Batts, Judge) resentencing him for attacking a correctional officer while an inmate at the Metropolitan Correctional Center (the “MCC”). On appeal, Salim argues primarily that his resentencing by videoconference constituted a violation of his right to be physically present. We agree with Salim that the government has not satisfied its burden of proving that he waived his right to be present and that the district court erred in finding a valid waiver. But this error is subject to plain error review and, in these circumstances, Salim was not prejudiced. We also reject Salim’s arguments that his resentence was unreasonable. We therefore AFFIRM the judgment of the district court.
Did elderly child porn downloader seek to "retire" in federal prison?This local federal sentencing story, headlined "Nevadan Returns to Prison for Possessing Child Pornography," caught my eye because the specifics led me to wonder if an elderly offender repeated his child porn crimes because he wanted to return to prison for his twilight years. Here are the details of the story that prompts the question in the title of this post:
A Nevadan who served time behind bars for possessing and trading child pornography over the Internet is returning to prison for committing a similar crime, Nevada's U.S. Attorney Daniel Bogden said Thursday. William Greenfield, 70, of Cal-Nev-Ari was sentenced Wednesday to nearly 22 years in prison by U.S. District Judge Kent Dawson. Greenfield pleaded guilty May 23 to one count of transporting child pornography.
"Each time a person receives, views and downloads child pornography they re-victimize the children depicted in the images," Bogden said. "Despite a previous federal prison sentence, this defendant continued his victimization of children undeterred. For the sake of his many victims, the lengthy prison sentence is both warranted and justified."...
Greenfield was released from federal prison on Nov. 8 after serving a 37-month prison sentence for possession of child pornography over the Internet. But on Dec. 13 a Metro Police detective determined that an individual using email addresses traced to Greenfield's residence was receiving child pornography images and videos through two Yahoo email accounts. Law enforcement officials executed a search warrant at Greenfield's residence a week later and recovered computers and digital devices. A subsequent forensic analysis revealed that his computer contained more than 600 images and videos of child pornography, which had been received over the Internet....
Greenfield met with his federal probation officer in Las Vegas on March 14 and admitted he recently viewed child pornography. Greenfield said that child pornography is his "thing," and that he was sexually aroused by talking to pedophiles. He told his probation officer that he used the website Yahoo for his child pornography activities, and provided the officer his user name and password. Greenfield also said he had a computer at his hotel room in Las Vegas.
The probation officer retrieved the computer and found a pornographic image of an approximately 5-year-old child, and notified the FBI. Greenfield gave the FBI permission to operate his Yahoo account. The investigating agent found more child pornography in the Yahoo messaging account and determined that Greenfield transmitted images and videos of child pornography to other people over the Internet in February and March.
Perhaps the defendant in this case is so addicted to child porn that he can never not stop himself from downloading illegal dirty pictures. But the basic timelines and investigatory details lead me to suspect that the offender he was eager to get sent back to federal prison for a very long time.
To begin, it appears that within weeks (and perhaps days) of getting out of prison for downloading child porn, the defendant here was at it again. No matter the level of one's addiction to dirty pictures, I would think an offender eager to remain free after spending three years in prison for a crime would not right away commit the same crime again. Moreover, even after police searched his house in December, Geeenfield was up to his old illegal activities over the next few months even as he prepared to meet with his federal probation officer. Then he admits all his illegal computer activity to his probation officer and apparently makes it pretty easy for the FBI to gather still more evidence about his illegal computer usage.
Further, if it is true that Greenfield is "sexually aroused by talking to pedophiles," then federal prison might just be a relatively happy place for him. I suspect that during his stint in the federal pen, Greenfield may have received "treatment" in the form of group sessions with other incarcerated pedophiles. Combine that form of perverted "entertainment" with free room, board and medical care provided by the Bureau of Prisons, and I cannot help but speculate that Greenfield decided following his release from federal prison last year that he was eager to go back and thus did what he needed to ensure a lengthy "retirement" in the federal penitentiary system.
Please know, all the above "analysis" is pure speculation after a long week of teaching. It is quite possible (perhaps probable) that I have this case all wrong. But I do not think I am wrong to be a least a bit concerned that the offender here was able (and perhaps eager) to find a way to get federal taxpayers to pay for all his care for what seems likely to be the rest of his life.
"21-Year Sentence For Norwegian Killer Of 77; But He May Serve For Life"The title of this post is the headline of this NPR report on the sentencing in Norway of Anders Breivik. I selected this piece to link on the blog because it provided a seemingly more accurate (and reassuring?) headline than some other press accounts which perhaps suggest Breivik could be a free man within a decade. Here is how NPR explains matters:
At first the news may be a shock because of what would seem to Americans to be such a relatively light punishment considering the crime: Anders Behring Breivik, the "self-styled anti-Muslim militant" who killed 77 people in Norway on July 22, 2011, was sentenced today by a five-judge panel in Oslo to a minimum of 10 years in prison and a maximum of 21 years, as The Associated Press reports. Twenty-one years is the most Norwegian law would allow. There is no death penalty in Norway.
But, the wire service adds: "Such sentences can be extended as long as an inmate is considered too dangerous to be released. Legal experts have said that in Breivik's case that could mean he will spend the rest of his life in prison." The Norway Post puts it this way: the prison sentence can be "prolonged at a later date, five years at a time, if he is deemed to remain a danger to society."
Part of today's ruling also focused on the issue of whether Breivik is sane enough to be held criminally responsible for the slaughter. The court concluded he is. On Morning Edition today, New York Times correspondent Alan Cowell said the verdict and sentence is something of a victory for Brevik because he did not want to be declared insane. "If he'd been found insane, he could have been treated indefinitely," Cowell said. Also, in Breivik's mind the sanity judgment lends credibility to his crimes.
Recent related post:
August 23, 2012
NAACP gets behind marijuana legalization inititative in ColoradoAs reported in this local article, the "Colorado ballot initiative to legalize limited possession of marijuana for adults is set to pick up an endorsement from a civil rights organization Thursday." Here is more:
[T]he head of the Colorado, Wyoming and Montana conference of the National Association for the Advancement of Colored People is expected to announce the conference's support for the initiative, Amendment 64. The conference's president, Rosemary Harris Lytle, said Wednesday the endorsement comes not out of an interest in marijuana use but instead from a concern over the lopsided numbers of African-Americans arrested for marijuana offenses.
"In ending the prohibition against adult use of marijuana we might affect mass incarceration and its disproportionate impact on African-Americans and other people of color," Harris Lytle said.
In 2010, African-Americans accounted for roughly 9 percent of all arrests for marijuana possession in Colorado and 22 percent of arrests for marijuana sales or cultivation, according to figures advocates pulled from FBI data. African-Americans made up about 4 percent of the Colorado population that year.
The local NAACP endorsement follows a similar endorsement by the California NAACP of a marijuana-legalization measure there in 2010. And it is in line with the national NAACP's stance against the drug war. "The realization is that drug laws have been disproportionately enforced against communities of color," said Niaz Kasravi, the national NAACP's criminal justice director.
Adams County District Attorney Don Quick, who opposes the initiative, agreed that African-Americans are over-represented in the criminal justice system. "There's no denying it and that's wrong," Quick said. "But the answer to that isn't to make marijuana more available in the community."
Quick said a proliferation of marijuana among adults will trickle down to kids, resulting in lower graduation rates and more discipline problems.
"Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics"The title of this post is the title of this notable new paper by Margo Schlanger now available via SSRN. Here is the abstract:
Last year, a bare majority of the U.S. Supreme Court, in an opinion in Brown v. Plata by Justice Anthony Kennedy, affirmed a district court order requiring California to remedy its longstanding constitutional deficits in prison medical and mental health care by reducing prison crowding. The order the Supreme Court reviewed requires California’s state prisons to limit prison population to 137.5% of the rated capacity of California’s prisons by the end of 2013; absent construction, that works out to a bit under 116,000 prisoners — about equal to the state prison population in mid-1993. At its peak in 2007, California’s prisoner total was over 173,000, with prisoners who couldn’t fit in cells packed instead into congregate spaces such as gyms.
This Article explores the legal and political ecosystem in which the Plata order developed and is being implemented. The result illustrates the complex interplay of institutional reform litigation and political outcomes and processes. The Article proceeds in four parts.
Part I sets out crucial background how a 1996 anti-prisoners’ rights federal statute, the Prison Litigation Reform Act (PLRA), structures correctional civil rights litigation. Part II paints the litigation history in the district court and the Supreme Court, focusing on the interaction of court procedure and politics — describing, for example, how the litigation promoted a more explicit, open, and elaborate multiparty bargaining process over prison population and criminal justice policy; and how the focus during trial on public safety actually increased prisoners’ rights advocates’ effectiveness outside of litigation. It analyzes Governor Jerry Brown’s “realignment” plan — the state’s response to the Plata/Coleman population order, which shrinks the parole population and shortens parole revocation sentence terms, moves some classes of prisoners from state to county custody, and encourages counties to consider non-incarcerative penalties for crime. Part III looks at one of the key features of the environment in which realignment is being implemented: pre-PLRA jail population court orders, which have been very common in correctional civil rights cases, functioning for decades as county-specific bail and jail sentencing reform mechanisms. Part IV concludes, by examining the prospects of a litigation-focused response to what I call the “hydra risk” — the very real possibility that court intervention could succeed at chopping the head off of unconstitutional conditions of prison confinement in California, only to cause 58 counties to develop unconstitutional conditions of jail confinement. Going forward, it will be a huge challenge for prisoners’ rights advocates to find out what is going on in all the scattered county jails, much less to seek remedies for the problems that may be uncovered. Three types of litigation responses are likely: additional scrutiny of jails in ongoing statewide prison litigation; new jail litigation; and revival of existing but more-or-less orphaned jail cases.
Sixth Circuit panel rejects reasonableness challenge to below-guideline terrorism sentencesA unanimous Sixth Circuit panel today affirmed in a lengthy opinion the conviction and sentences given to a groups of terrorism defendants in US v. Amawi, et al, No. 09-4339 (6th Cir. Aug. 23, 2012)(available here). This snippet from the start of the majority opinion highlights why sentencing fans will want to be sure to check out at least part of the panel's work:
This appeal arises from a jury trial in which the three defendants were convicted of conspiracy to kill and maim persons outside the United States, in violation of 18 U.S.C. § 956(a)(1), and of conspiracy to provide material support to terrorists in furtherance of the killing of U.S. nationals, in violation of 18 U.S.C. § 2339A. In addition, Amawi and El-Hindi were each convicted of two counts of distributing information regarding the manufacture of explosives, destructive devices, and weapons of mass destruction, in violation of 18 U.S.C. § 842(p)(2)(A). Amawi, El- Hindi, and Mazloum were sentenced to below-Guidelines-range terms of 240, 144, and 100 of months of imprisonment, respectively.
There are ten issues on appeal.... Ninth, the government cross-appeals the sentences imposed, contending that they are both procedurally and substantively unreasonable.....
We affirm all opinions and judgments of the district court.
Can a plea deal with one murder defendant take death off the table for another?The question in the title of this post is prompted by this local story from Ohio in which it appears that one defendant is trying to get the death penalty blocked before his trial based on a plea deal purportedly made with a co-defendant. Here are the particulars:
The judge in the William Inman Sr. murder trial says he'll decide Thursday whether to take the death penalty off the table. Inman is charged with killing his daughter-in-law, Summer, then dumping her body in a septic tank in 2011.
Defense attorneys are questioning those involved in initial plea negotiations involving Inman's wife, Sandra, for her role in the murder. Sandra Inman eventually agreed to testify against her husband in exchange for a 15-years-to-life prison sentence.
Inman Sr.'s lawyers say prosecutors' initial deal with Sandra Inman included an assurance that neither she, nor her co-defendants (William Sr. and the couple's son, William Jr.) would face the death penalty.
Prosecutors say that deal was invalidated when Sandra Inman cut an interview short, declined to provide truthful answers, and initially pleaded not-guilty by reason of insanity, before changing her plea to guilty.
A former Sandra Inman attorney, Bill Henderson, testified Monday that he was involved in plea negotiations that included a sentence of 12-years-to-life for Sandra Inman, as well as an assurance that "the state will not pursue the death penalty against the co-defendants."
In cross examination, prosecutors asked Henderson why he would make such a deal, since the prison term is three years less than the 15-years-to-life mandatory murder sentence in the state of Ohio. Henderson testified that he anticipated the deal would be "tweaked" when the case went to court -- and was then told he breached the deal early on when his client first pleaded not guilty by reason of insanity, instead of guilty to murder.
A jury found William Inman Jr., guilty in June for the murder of his wife; he was sentenced to life in prison with no possibility of parole. Jury selection in William Sr.'s trial is expected to begin Thursday, after the judge rules on the motion to remove the death penalty from consideration.
Beyond the factual questions of what kind of plea deal might have been put together by the local prosecutors and various defendants in this case, I wonder more broadly about legal questions surrounding whether, when and why a plea deal with one defendant can and should categorically preclude a judge or jury from considering an otherwise lawful sentence for another defendant.
I vaguely recall from my 1L contracts class two decades ago some doctrines about when and how third-party beneficiaries can seek enforcement of a contract between two other parties. But even if basic contract law might enable one defendant to seek to secure a benefit from another defendant's plea deal, I think that such a deal to preclude consideration of a statutorily authorized punishment for a crime could be viewed as void against public policy.
In my view, as a matter of just and effective sentencing policy and practice, it is troublesome enough that defendants and prosecutors often can and will cut (seemingly enforceable) deals intended to revise the applicable legal process and sentencing options for that defendant (e.g., take away appeal rights, limit arguments for departures/variance, etc.). I think it could be even more worrisome if and when defendants and prosecutors could put together enforceable deals to revise the applicable legal process and sentencing options for any number of other defendants.
UPDATE: As this new local story now reports, "[a]fter hearing arguments this week, Hocking County Common Pleas Court Judge John T. Wallace this morning denied a defense motion to eliminate death as a possible penalty if William "Bill" Inman is convicted of aggravated murder in a trial beginning Tuesday."
"Mass killer's Norwegian prison cell has treadmill, computer access"The title of this post is the headline of this notable Fox News report providing a remarkable perspective on how some other nations treat their most notorious criminals. Here is how the lengthy story begins:
Accused mass murderer Anders Behring Breivik's Norwegian prison cell is more spacious than most New York City apartments. The confessed killer, who will receive his sentence Friday for killing 77 people in a bombing and shooting rampage at a youth camp, was transported Wednesday to Norway's Ila Prison, just outside Oslo.
The high-security prison offers Breivik not one, but three 86-square-foot cells. One cell functions as a bedroom, another as an exercise room, complete with treadmill, and the third is a study, where Breivik can use a laptop computer.
Officials at Oslo's Ila Prison say the goal is to eventually transfer Breivik to join other prisoners at section of the jail that offers access to a school that teaches from primary grades through university-level courses, a library, a gym, and allows inmates to work in the prison's various shops and participate in leisure activities. It's all about a philosophy of humane prison treatment and rehabilitation that forms the bedrock of the Scandinavian penal system. "I like to put it this way: He's a human being. He has human rights. This is about creating a humane prison regime," said Ellen Bjercke, a spokeswoman for Ila Prison.
Since Breivik's guilt is not in question, the key decision for the Oslo district court Friday is whether to declare him insane after two psychiatric teams reached opposite conclusions on his mental health. If found to be mentally fit, Breivik would face a sentence of "preventive detention." Unlike a regular prison sentence -- which can be no longer than 21 years in Norway -- that confinement option can be extended for as long as an inmate is considered dangerous to society. It also offers more programs and therapy than an ordinary prison sentence.
If declared insane, the confessed killer will be the sole patient of a psychiatric ward that Norway built just for him at the prison, with 17 people on staff to treat him. It cost between 2 million and 3 million kroner ($340,000-$510,000), according to Norway's Health Ministry. The facility, featuring a 100-square-foot cell with a bathroom, would offer Breivik some recreational and educational options with therapists from a psychiatric hospital, but not the breadth of options available to prison inmates. Bjercke estimated the cost of keeping Breivik there at 7 million-10 million kroner a year ($1.2 million-1.7 million).
While in isolation, Breivik has access to TV and newspapers and a computer, but no Internet connection. He has three cells instead of one in "compensation" for not having access to activities offered to other inmates, Bjercke said. In addition, prison staff and a priest come see him more often than other inmates, so that he has someone to talk to. "Isolation is torture," Bjercke said.
August 22, 2012
"Prosecutorial Administration"The title of this post is the title of this new paper now available via SSRN authored by Rachel Barkow. Here is the abstract:
It is by now well known that federal prosecutors hold the reins of power in individual federal criminal cases. They have almost unlimited and unreviewable power to select the charges that will be brought against defendants. Prosecutors have also been a driving force in the political arena for mandatory minimum sentences and new federal criminal laws.
But prosecutorial power over federal criminal justice policy goes deeper still. Because of the structure of the Department of Justice, prosecutors are involved in other areas of criminal justice policymaking. Indeed, we are living in a time of “prosecutorial administration,” with prosecutors at the helm of every major federal criminal justice matter.
This Article describes the current regime of “prosecutorial administration” and explains why its consequences should concern anyone interested in a rational criminal justice regime that is unbiased in any particular direction. It focuses on three areas of criminal justice policy -- corrections, clemency, and forensics -- and describes how these matters came under the aegis of the Department without much concern about the conflicts they would create with the Department’s law enforcement mission. It is a well-established feature of institutional design that agencies with competing mandates will adhere to the dominant one. In the case of the Department of Justice, that dominant mandate is undoubtedly law enforcement and obtaining convictions in particular cases. As a result, whenever conflicts arise (or appear to arise) between this mission and other functions such as corrections, clemency, or forensic science, the law enforcement interests (as perceived by the Department’s prosecutors) will dominate.
Thus, if decisions about corrections, forensics, and clemency are being made by prosecutors -- and thus through the lens of what would be good for prosecutors and their cases -- it is possible that these decisions are not accounting for what would be good policy overall, taking into account interests other than law enforcement. Indeed, even if the goal is law enforcement, prosecutors are not well-suited to take into account the long-term goals of law enforcement because they are focused on the short-term pressure of dealing with current cases.
The Article thus turns to the question of how institutional design could help create more of a balanced approach in these areas that is not so tilted to law enforcement concerns. After making the case that institutional change is feasible in at least some areas, the Article tackles the question of what changes could yield positive results in each of these areas and what tradeoffs they entail.
Condemned Texas killer gets last-minute reprieve from SCOTUSAs reported in this AP article, the "U.S. Supreme Court again halted the scheduled execution of a Texas inmate convicted of a triple murder less than an hour before he could have been taken to the death chamber Wednesday." Here is more:
Justices decided to stop the punishment of John Balentine, condemned for fatally shooting three teenage housemates in Amarillo in 1998. Balentine also came within an hour of receiving the lethal injection a year ago and the high court took the same action on an appeal that ultimately was rejected. In 2009, he won a reprieve a day before his death date.
The high court said in a one-paragraph ruling Wednesday that it was giving the reprieve so it could consider Balentine's petition for a review. Attorneys said the appeal would be discussed by the court at a conference late next month. If the request for review is rejected, the reprieve would end and prosecutors again could ask for a judge in Amarillo to set another execution date.
Effective review of three-strikes initiative battle taking place in CaliforniaThe Sacramento Bee has this lengthy new article providing an effective overview of the 2012 election season debate over an effort to reform California's three strikes law. The piece is headlined "'Three-strikes' battle returns to fall ballot in California," and here are excerpts:
Proposition 36 gives the state's electorate another opportunity to weigh in on California's 18-year-old "three-strikes" law, the toughest career-criminal sentencing statute in the nation. Twice in as many decades, voters have sided in favor of a three-strikes law that allows judges to impose a life prison term for offenders who commit a third felony -- no matter how minor -- if they have two previous serious or violent criminal convictions on their records.
Proposition 36 proponents want to change the law to restrict the 25-years-to-life sentences, with some exceptions, to criminals whose third felony was serious or violent; nothing less than a residential burglary would qualify as a strike.
The measure would enable an estimated 3,000 of the 8,873 prisoners serving 25-years-to-life terms in the state as of June 30 to apply for resentencing hearings. If their motions for new terms are granted, a good number of those 3,000 prisoners could go free. The Legislative Analyst's Office estimates passage of Proposition 36 could save the state anywhere from $70 million to $90 million a year in reduced prison costs.
The initiative has had huge cash infusions from two sources. Billionaire financier George Soros, the international hedge fund manager who has contributed millions over the years to change drug laws and other statutes he believes are too harsh, kicked in $500,000, according to the secretary of state's records. David W. Mills, a Stanford law professor and private investment manager, matched and raised the contribution. Mills, a co-chair of the NAACP's Legal Defense Fund, put in $878,000. The money Soros and Mills contributed paid for the $1.4 million signature-gathering effort that qualified Proposition 36 for the Nov. 6 ballot.
In an interview, Mills, 65, said his involvement in California's three-strikes law stems from his long-term interest in civil rights. It is Mills' view that the sentencing measure's "dramatic effect on poor people and African Americans" makes it one of the leading civil rights issues of the day. "The notion I can live in a state in a country where we would send somebody to jail for 25-to-life for stealing a loaf of bread, a pair of gloves, a piece of pizza, for a gram of cocaine, or whatever, to me is incomprehensible," he said.
Opponents of the measure include the California Police Chiefs Association. Sacramento Police Chief Rick Braziel signed the ballot rebuttal argument against Proposition 36 in his capacity as president of the California Peace Officers Association, arguing that thousands of criminals would be released from prison. Top victims' rights organizations, such as Crime Victims United of California, also have lined up to fight the measure....
Mike Reynolds, the Fresno photographer whose daughter was murdered by a repeat offender, has served as guardian of the three-strikes law since its 1994 birth. In an interview, Reynolds noted steep declines in the California crime rate in the 18 years that the law has been in effect. He wonders why anyone would want to change it, and is angry at the thought of 3,000 career criminals getting out of prison.
"One hundred percent of them would have at least two prior serious or violent convictions," Reynolds said. "Make no mistake. We're talking about the bad boys. These are the guys who are responsible for the worst of our crimes, the most active by definition. And you want to put them back on the streets and not expect them to come back with new convictions?"
Another Proposition 36 opponent, Sacramento County District Attorney Jan Scully, sneers at the suggestion that the three-strikes change would save taxpayers' money by releasing people from prison. "This assumes they're not going to commit any more crimes," Scully said. "Trust me, they are. Then we'll have to prosecute them again, so they'll be taking up just as many resources as before, except they'll have new victims in their path."
August 22, 2012 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Seventh Circuit talks through reasonableness review of above-guideline sentencesIn part because it is an opinion by Judge Posner, and in part because it concerns an issue that arises with relative frequency, federal sentencing practitioners will want to be sure to check out the Seventh Circuit's work today in US v. Castillo, No. 11-2792 (7th Cir. Aug. 22, 2012) (available here). Here are excerpts from the panel opinion (with most cites omitted):
We write to clarify an ambiguity concerning the scope of appellate review of an above-guidelines sentence. We have said that “the farther the judge’s sentence departs from the guidelines . . . the more compelling the justification based on factors in section 3553(a) that the judge must offer in order to enable the court of appeals to assess the reasonableness of the sentence imposed.” United States v. Courtland, 642 F.3d 545, 550 (7th Cir. 2011).... The ambiguity is in the word “farther.” It can be conceived of in either relative or absolute terms. A sentence of 60 months is 30 percent longer than a sentence of 46 months (the top of the applicable guidelines range in this case); and a 30 percent increase is large in relative terms. But in absolute terms, given the severity of federal criminal punishments, it is a smallish 14 months; the average federal prison sentence in 2009 was 57 months.
It seems to us that the relative is generally more important than the absolute, as is implicit in a number of our previous decisions. The guidelines range is the Sentencing Commission’s estimate of the reasonable range of punishments for the defendant’s offense. Usually (an important qualification, as we’re about to see), a judge who imposes a sentence far above the top or far below the bottom of that range is challenging the Commission’s penal judgment, and given that the Commission’s knowledge of penology exceeds that of most judges, the judge needs to provide more in the way of justification than if he were departing incrementally.
Guidelines ranges are inherently arbitrary, so had the judge in this case sentenced the defendant to 47 months instead of the guideline maximum of 46 it would not have been a significant challenge to the Commission’s penal judgment and so would not have required much in the way of justification. A 30 percent departure requires more; “substantial variances from the Sentencing Commission’s recommendations require careful thought.” United States v. Kirkpatrick, supra, 589 F.3d at 415. Yet less thought is necessary when the applicable guideline is “not the product of the Commission acting in ‘its characteristic institutional role,’ in which it typically implements guidelines only after taking into account ‘empirical data and national experience.’ ” United States v. Reyes-Hernandez, 624 F.3d 405, 418 (7th Cir. 2010), quoting Kimbrough v. United States, 552 U.S. 85, 109 (2007).
We acknowledge that focus on the sentencing judge’s percentage deviation from the guidelines range can mislead, at least when the sentence is below rather than, as in this case, above the sentencing range.... But it’s hard to see how a court can carry out the command of Gall to require a justification “sufficiently compelling to support the degree of the variance,” 552 U.S. at 50 (emphasis added) — “degree” being a relative rather than absolute measure — without at least considering the percentage deviation.
"Meaningless Opportunities: Graham v. Florida’s 'Meaningful Opportunity for Release' for Juvenile Offenders and the Reality of De Facto LWOP Sentences"The title of this post is the title of this forthcoming Comment by Mark Freeman available now via SSRN. Here is the abstract:
In 2010 the United States Supreme Court decided Graham v. Florida, which held that LWOP sentences for juvenile, non-homicide offenders were unconstitutional. This Comment argues that de facto LWOP sentences, lengthy term of years sentences that exceed a juvenile's natural life expectancy and effectively guarantee the offender will die in prison, are also unconstitutional for juvenile non-homicide offenders.
Part II provides a brief overview of the Supreme Court’s Eighth Amendment jurisprudence and how lower courts have responded to Graham. Part III explains why de facto LWOP sentences for juveniles who commit non-homicide crimes will fail the Supreme Court’s traditional Eighth Amendment tests and argues for a categorical ban against these sentences. Part IV discusses the practical implications of this Comment and whether juvenile offenders will see any meaningful change if courts adopt a categorical ban. Part V concludes that courts should embrace the spirit of Graham’s holding and provide a meaningful opportunity for juvenile offenders to experience life outside of prison before they die.
August 22, 2012 in Assessing Graham and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (4) | TrackBack
August 21, 2012
Split Ninth Circuit faults district judge for failing to ensure defendant was competent at sentencingToday the Ninth Circuit handed down an interesting split panel decision on an interesting sentencing issue in US v. Dreyer, No. 10-50631 (9th Cir. Aug. 21, 2012) (available here). Here is how the majority opinion (per Judge Reinhardt) starts:
At the age of 63, Joel Dreyer experienced the onset of frontotemporal dementia, a degenerative brain disorder that causes changes in personality and behavior, impairs social interactions, and causes disinhibition and a loss of insight and impulse control. He was a practicing psychiatrist at the time. From the age of 66 to 69, despite having no criminal history, Dreyer participated in a conspiracy to distribute controlled substances, and in December 2010, at the age of 73, he was sentenced to ten years imprisonment after he pleaded guilty to charges related to that conspiracy.
At the sentencing hearing, the district court was provided with three expert reports: all three diagnosed Dreyer with frontotemporal dementia and noted that he exhibited textbook manifestations of the condition since its apparent onset in 2001, three years before his participation in the controlled substance conspiracy, and that his symptoms persisted into the present. Dreyer did not allocute at sentencing and defense counsel informed the court that his client would not address it due to the dementia’s effect on his behavior. Defense counsel did not move for a competency hearing and the district court did not order a hearing sua sponte. The court sentenced Dreyer to 120 months. Dreyer appeals his sentence, contending that the district court erred by failing sua sponte to order an evidentiary hearing to determine his competency at the time of sentencing.
We hold that the record before the district court at sentencing was sufficient to cause a genuine doubt as to the defendant’s competence and that the court committed plain error by failing to order a hearing sua sponte. Accordingly, we vacate Dreyer’s sentence and remand for the district court to evaluate Dreyer’s competency on the basis of an evidentiary hearing. In light of the additional circumstances of this case, we also direct that all further proceedings be assigned to a new judge on remand.
Here is how the lengthy dissent (per Judge Callahan) gets started:
I respectfully dissent. I cannot agree that it was plain error for the district court not to sua sponte order a competency hearing after Joel Dreyer pleaded guilty and received the benefit of his plea agreement but before sentencing. Dreyer was represented by competent counsel and had been examined by a number of doctors. Although all agreed that he suffered from frontotemporal dementia (“FTD”), none opined that Dreyer was not competent to participate in his sentencing. Moreover, although Dreyer chose not to allocute, he was responsive when the district judge addressed him personally, stating that he respected the judge and appreciated her comments. Even if the trial judge might have issued a sua sponte order for further psychiatric and medical evaluations, failure to do so was not plain error. Moreover, the majority’s unrequested reassignment of the case on remand to another judge is contrary to our norm of remanding to the original sentencing judge and is unsupported in fact or law.
New plea deal in place for child porn defendant after federal judge rejected prior deal with appeal waiverThis Denver Post article, headlined "Colorado child porn suspect pleads guilty on second try," provides an interesting follow-up to a federal sentencing story about plea deals and appeal waivers. Here are the new details:
A child pornography suspect who reached a plea deal with federal prosecutors only to see that agreement rejected by the judge has finally pleaded guilty after striking a new deal.
Earlier this month, Timothy Vanderwerff pleaded guilty to one count of receipt of child pornography. As part of the deal, prosecutors agreed not to seek more than 12 years in prison for Vanderwerff, though he could receive as much as 20 years or as little as 5 when formally sentenced.
Under his first deal, Vanderwerff would have pleaded guilty to the less-serious charge of possession of child pornography and would have likely faced no more than 10 years in prison. That deal, though, also contained a waiver of Vanderwerff's right to appeal, except in limited circumstances.
It was that last detail that tripped up Senior U.S. District Judge John Kane, who rejected the deal in June by explaining that, "Indiscriminate acceptance of appellate waivers undermines the ability of appellate courts to ensure the constitutional validity of convictions and to maintain consistency and reasonableness in sentencing decisions."
Appellate waivers have become commonplace in federal plea bargains, and both sides in the case argued that the waiver was a valuable bargaining chip in negotiations. But Kane said neither side gave him enough information to determine whether the waiver was appropriate. He wrote it is questionable to sacrifice "constitutional rights at the altar of efficiency."
Vanderwerff's attorney soon appealed the plea-deal rejection, arguing that the decision put Vanderwerff in a tight spot. After Kane's ruling, federal public defender Edward Harris wrote in a case filing, prosecutors refused to offer Vanderwerff the same deal minus an appellate waiver, instead pushing a much tougher bargain. The plea agreement Vanderwerff ultimately signed does not contain an appellate waiver.
Prior post on the Vanderwerff case and a few older appeal waiver posts:
- Appeal waiver prompts federal judge to reject child porn plea deal
- The fate and future of appeal waivers?
- Important new paper on appeal waivers
- "Stemming the Tide of Postconviction Waivers"
August 20, 2012
Federal magistrate orders(!?) Minnesota to convene Task Force to reform state's sex offender civil commitment
I just came across this interesting local story coming out of Minnesota last week, headlined "Minnesota must change sex offender program, judge orders." The story's report on a recent judicial order concerning Minnesota's civil commitment program strikes me as notable both as a matter of substance and procedure. Here are the details:
A federal judge has ordered Minnesota to reform its system for civilly committing and confining paroled sex offenders to indefinite treatment, a controversial practice that has drawn international criticism because almost no one has gotten out.
Chief U.S. Magistrate Judge Arthur Boylan on Wednesday ordered state Human Services Commissioner Lucinda Jesson to convene a task force of experts to recommend options less restrictive than the state's prison-like treatment centers and to suggest changes in how offenders are selected for civil commitment, as well as how they might earn release from the program. The order came during pretrial discussions in a class-action lawsuit brought by patients who argued that their indefinite detention after completing their prison sentences is unconstitutional.
Critics of the Minnesota Sex Offender Program (MSOP) hailed Boylan's order as an unprecedented and significant step toward changing a system that has been a magnet for controversy since its creation in 1994 with the construction in Moose Lake of a sprawling campus surrounded by razor wire.
The program was created to treat small numbers of the state's worst sex criminals who had completed their prison sentences but were deemed too dangerous to release. But the 2003 killing of college student Dru Sjodin by a rapist newly released from prison prompted a surge of commitments of all types of sex criminals, from rapists to nonviolent molesters. The state went from committing an average of 15 per year before 2003 to 50 per year after that pivotal year.
The program's population has soared to more than 600 -- the most sex-offender civil commitments per capita in the country. Only two have won provisional discharge. One of those, Ray Hubbard, was pulled back into a treatment lockup because a psychiatrist thought he might reoffend. He died shortly thereafter....
Former state Sen. Don Betzold, chief author of the 1994 Sexually Dangerous Persons Act that created the current civil commitment system and MSOP, said the courts have repeatedly upheld the law as constitutional because judges believed the confinement was for treatment and that the public has been reassured that a subset of dangerous sex offenders are not free to strike again. However, even Betzold, a lawyer, said the lack of releases is a problem because it invites the conclusion that the program's only purpose is confinement....
The lead attorney for the patients, Dan Gustafson, called Boylan's order "a significant step" toward making the MSOP more effective and fair. "If you're going to commit these folks, you have to give them legitimate treatment and the legitimate opportunity to get out," said Gustafson, adding that unless the state reforms the system, it risks that the courts will declare the program unconstitutional and order releases, or mandate program improvements more expensive than the state can afford....
Boylan ordered that the state try to pack the task force with experts in the civil commitment system and the MSOP, including current or former legislators, prosecutors, judges, police, attorneys for patients, and state and local officials who deal with offenders....
[S]tate Rep. Tony Cornish, R-Good Thunder, who has studied the MSOP and civil commitment system as chair of the House committee on Public Safety and Crime Prevention Policy and Finance, ... said that when he and other legislators examined issues with the program this year, they found "there was no appetite in the Legislature for letting anyone out. They'd rather spend millions of dollars keeping people locked up than take the chance of something bad happening."
Now that a federal judge has ordered the state to look at other alternatives, policymakers may have to make decisions they find difficult to stomach, Cornish said, although the court mandate also may give them more of the political cover they need to make changes. "The die has been cast," Cornish said. "Now we have to find a blend that will satisfy the court but still protect the public."
Based on this press account, it is hard to tell if the order in this case from Chief U.S. Magistrate Judge Arthur Boylan is part of a consent agreement or some other negotiated settlement of the on-going lawsuit. Whatever the formalities, I think it is unusual (and perhaps even inappropriate) for a federal magistrate judge to "order" a state official "convene a task force of experts to recommend" changes to a program which may be constitutional and to further demand that this task force be packed "with experts in the civil commitment system and the MSOP, including current or former legislators, prosecutors, judges, police, attorneys for patients, and state and local officials who deal with offenders."
I am all for expert task forces to examine and address seemingly problematic areas of a state's criminal justice system. (Indeed, as noted here, I am a member of just such a task force in Ohio.) That said, I have never heard of a federal judge ordering the creation and staffing of such a task force as part of the adjudication of a constitutional challenge to a state criminal justice practice. Perhaps this kind of order is not unusual or inappropriate for this kind of litigation, but it sure seems noteworthy all the same.
August 20, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack