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August 27, 2012

"Beyond Finality: How Making Criminal Judgments Less Final Can Further the 'Interests of Finality'"

The title of this post of this notable new article now available via SSRN by Professor Andrew Chongseh Kim. Here is the abstract:

Courts and scholars often assume that granting convicted defendants more liberal rights to challenge their convictions and sentences would necessarily harm society's various interests in "finality," the most prominent of which are resource conservation, efficient behavior by defense counsel, and deterrence.  The extent to which convicted defendants should be allowed to challenge their judgments depends, according to the common analysis, on how much society is willing sacrifice those interests to validate defendants' rights. This article argues that although expanding defendants' rights on post-conviction review inherently makes criminal judgments less "final," it does not necessarily harm the interests "finality" presumes to protect.  Rather, when the financial costs of wrongful incarceration, resource constraints on defense counsel, and the effects of legitimacy on compliance are considered, it becomes clear that granting more liberal review can often conserve state resources, will rarely affect the behavior of defense counsel at trial, and can help reduce crime.

First, the assumption that defendants' post-conviction rights impose significant burdens on states ignores the costs of wrongful incarceration.  Although recent studies on innocence have demonstrated that successful post-conviction review can produce large incarceration savings, they offer little insight into how significant those savings are compared to the administrative costs of providing the many appeals by defendants who failed to obtain relief on appeal.  This article demonstrates, using the limited data available, that for direct appeals, the wrongful incarceration savings are generally quite substantial compared with the administrative costs of providing those appeals.  Indeed, it is quite possible that some states realize net cost savings by providing direct appeals. The article then identifies specific restrictions on defendants' rights, such as restrictions on relief from plain errors in sentencing that impose net costs on states.  This article argues the existence of such restrictions that harm defendants at net financial cost to states is partly the result of an agency problem in criminal appellate decision making.

Second, although limiting defendants' opportunities to seek relief from errors after conviction may increase incentives on defense counsel to prevent errors at trial, these increased incentives are unlikely to affect the actual behavior of counsel. With respect to strategic behavior or "sandbagging," this article argues that because harmless error rules prohibit relief from errors that did not, in retrospect, affect the outcome of a trial, defense counsel will rarely have incentives ex ante to intentionally sandbag errors. In addition, because most inadvertent mistakes are caused by resource constraints on public defenders, rather than inattentiveness, increased restrictions on post-conviction rights are unlikely to reduce inadvertent mistakes.  Moreover, to the extent that restricting review might actually compel defense counsel to take additional care at trial, because this care must be paid for by the state, it could actually be inefficient.

Finally, this article argues that the traditional finality deterrence argument, which depends heavily on the assumption that prisons effectively rehabilitate offenders, has been severely undermined by social science literature.  Liberalizing post-conviction review, however, could increase incentives on people to obey the law by reducing wrongful convictions and the punishment given to defendants wrongfully convicted.  Although the effects of reduced wrongful conviction are unlikely to affect the incentives of most people, for whom the risk of wrongful conviction is already negligible, they may be significant for at risk populations for whom the risk of profiling and wrongful suspicions are more salient. In addition, studies have demonstrated that the willingness of people to obey the law is influenced heavily on how "fair" or "legitimate" the legal system is perceived to be. Because many restrictions on post-conviction relief may be perceived as procedurally "unfair" by defendants, lifting these restrictions may actually encourage criminals and their associates to comply with the law.

I have long thought that the concept of finality has been badly under theorized, especially in the arena of sentencing law and policy.  Consequently, I am very much looking forward to finding time to read this significant new article on the concept.

August 27, 2012 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (7) | TrackBack

Second Circuit limits predicates triggerring 15-year child porn mandatory minimums

The Second Circuit has released today a lengthy and significant ruling concerning the application of mandatory minimum terms for those convicted of child pornography offenses. The panel opinion in US v. Beardsley, No. 11-2206 (2d Cir. Aug. 27, 2012) (available here) begins this way:

Defendant-appellant Wayne Beardsley appeals from a judgment of conviction entered in the Northern District of New York (Glenn T. Suddaby, Judge) following his plea of guilty to knowingly receiving and possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(a)(5)(B).  The district court sentenced Beardsley to fifteen years in prison, the mandatory minimum sentence established by 18 U.S.C. § 2252A(b)(1), which applies to defendants convicted of certain federal child pornography offenses who have a prior conviction “under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”  On appeal, Beardsley argues that the district court erred in employing the “modified categorical approach” to analyze the facts underlying his prior state conviction for endangering the welfare of a child, and that under the proper standard -- the “categorical approach” -- his prior state conviction does not qualify as a § 2252A(b)(1) predicate offense.  We agree, and therefore vacate his sentence and remand to the district court for resentencing.

August 27, 2012 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

What is strongest argument for making criminals of vets who seek marijuana to help with PTSD?

Ptsd-cannabis-fixThe question in the title of this post is prompted by this lengthy article from Oregon, which is headlined "Oregon medical marijuana backers trying again to add PTSD to list of qualifying conditions." Here are the basics:

Officially, Rick Fabian uses medical marijuana to relieve severe pain from a litany of health problems.  But more than pain, the 60-year-old Vietnam vet relies on the drug to blunt the debilitating symptoms of post-traumatic stress disorder.  "I was a crabby vegetable, my wife says," said Fabian, who lives in Corbett.  "I am still a little bit high maintenance, but I do better. ... I am not saying I am cured, but I am kinder and gentler to people. I am happier."

Oregon medical marijuana advocates are laying the groundwork to add PTSD to the list of conditions that qualify patients to use medical marijuana.  They say many with the disorder are already in the state program because they have other medical conditions that allow them to legally use the drug.  But as more veterans return home and struggle to resume their lives, advocates say it's time to recognize PTSD as a stand-alone condition....

Two previous attempts to add PTSD to Oregon's program have failed, and Colorado and Arizona officials recently rejected efforts to add the condition to their medical marijuana programs.  Law enforcement in Oregon generally opposes the expansion of the program. Some drug treatment providers caution against treating PTSD sufferers with what they view as an addictive drug.

Oregon is home to an estimated 300,000 veterans, including more than 20,000 from the Iraq and Afghanistan conflicts, according to the Oregon Department of Veterans' Affairs.  A 2008 Rand Corporation study found nearly 20 percent of Iraq and Afghanistan vets reported PTSD symptoms.

Jason Hansman, senior program manager for the Iraq and Afghanistan Veterans of America, said medical marijuana's potential to help sick veterans deserves serious examination.  "We treat it like any other new treatment technique: We want to see it studied.  We want to see increased research to see if it's a viable solution," said Hansman, whose group represents 145,000 veterans....

[S]ome veterans say they rely on medical marijuana to function. Jared Townsend, a 27-year-old Iraq War veteran, depends on the drug to help him sleep and, as he puts it, "balance life out a little bit better."

The Hillsboro man qualifies for medical marijuana due to severe pain from a ruptured disc and injured shoulder, injuries from his 2007-08 combat tour.  But the drug is a bigger help with his PTSD symptoms.  "If I get racing thoughts and real worked up, it can break a panic attack pretty quick," Townsend said.

Seventeen states and Washington, D.C., have medical marijuana laws, but only a few list PTSD as a qualifying condition. In New Mexico, which legalized medical marijuana in 2007, the inclusion of PTSD on the list has been significant.  The New Mexico Department of Health said 40 percent of medical marijuana patients list PTSD as their qualifying condition, far more than any other condition....

States considering whether to add PTSD to their medical marijuana programs face a lack of research on the topic, and that's not likely to change anytime soon.  Dr. John H. Halpern, an assistant professor of psychiatry at Harvard Medical School and researcher at McLean Hospital outside Boston, one of the country's leading psychiatric hospitals, said there's an "overabundance of case reports" suggesting marijuana aids PTSD sufferers.  In a recently published paper, Halpern presented a case study he helped conduct on a PTSD sufferer whose marijuana use dramatically eased his symptoms.

But the politics of marijuana bogs down any meaningful examination of its benefits, Halpern said.  Halpern is one of only a handful of U.S. researchers to conduct clinical research on humans using a so-called Schedule 1 drug.  That category of drugs, which includes marijuana, heroin and ecstasy, is defined as substances that have a "high potential for abuse" and "no currently accepted medical use."

Halpern said when it comes to research proposals involving Schedule 1 drugs, only marijuana studies are required to undergo an additional review by the National Institute on Drug Abuse.  The agency's research focus is on drug abuse and addiction.  "We are at this point because there are limited treatment options for people with PTSD," Halpern said.

One often hears that America's soldiers fight abroad to secure our freedoms here at home.  I subscribe to that concept, and thus I think it is especially important to give veterans as much support and freedom as possible upon their return from combat.  And though I am sure there are lots of medical options for PTSD which should be explored before vets turn to marijuana, I am equally sure that it is tragic to force our veterans to become federal criminals if and when they turn to marijuana to help with PTSD upon their return home.

I understand the assertion that it is extreme unlikely that a vet will ever be subject to federal criminal prosecution and punishment if and when he turns to marijuana to help with PTSD.  Nevertheless, for those persons who put their lives and health on the line for the benefit of all Americans, I believe all Americans should be troubled and disappointed that the federal government requires veterans to be willing to break the law merely in order to get treatment for service-related ailments. 

But maybe I am missing some great argument for existing federal law and policy here, and thus the basis for the genuine question in the title of this post.  I hope to see some honest efforts to answer the question (with limited snark, if possible).

August 27, 2012 in Offender Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing | Permalink | Comments (68) | TrackBack

August 26, 2012

Another local perspective on another state juve LWOP sentence Miller could impact

It has now been almost exactly two months since the Supreme Court declared that mandatory LWOP for juvenile murderers is constitutionally problematic.  And though I know of no full resentencings that have yet taken place in the wake of Miller, there have been lots of reports on juvenile offenders serving LWOP who might get some relief due to the ruling.  This lengthy local story from Pennsylvania, headlined "New fate for young killers?," provide just such a report and merits a full read.  Here are excerpts:

In 1978, an 80-year-old Allentown woman was bludgeoned to death in her bedroom, her wounds so grievous that she had to have a closed coffin at her funeral.  The age of Stella Bremmer's killers was as shocking as the brutality of their crime.  They were both Dieruff High School students, the youngest a 16-year-old boy who used a metal rod to beat Bremmer.

That kid, Joseph G. Romeri, remains behind bars at 50, a state prison inmate for two-thirds of his life.  But for the first time in more than three decades, he sits in jail with realistic hope that he will one day be freed.

Under a U.S. Supreme Court ruling in June, it is cruel and unusual punishment to sentence a juvenile to a mandatory term of life in prison without parole for murder, as Romeri and nearly 500 Pennsylvania prisoners were.

That means he — along with some of the Lehigh Valley's most infamous killers — could be eligible for a new sentencing hearing, and the possibility of winning a sentence that allows him the chance of release.

Romeri's case is the oldest of six in Lehigh County and one in Northampton County involving once-young murderers who were charged as adults and received life sentences. And cases like his represent the front lines of the highest court's decision: Because of how long Romeri has been incarcerated, any sentence less than life would mean he could soon be back on the streets, as Pennsylvania law never intended....

Romeri's supporters call him a model for why juveniles shouldn't receive life sentences.  In his time in prison, they say, Romeri has completed vocational and treatment programs, mentored and advocated for other inmates, and even gotten a Bachelor of Science degree from the University of Pittsburgh.  "You learn a lot about yourself in prison because you have a lot of time for yourself," said Romeri, who "wanted to change.  I didn't want to be that person in jail."

Romeri said he would do anything to undo what he did.  But he said he still has something to offer society, with his example one that could touch troubled youths before it is too late for them.  "Back then, I was just a really dumb kid and made a lot of bad decisions and didn't care about anyone but myself," Romeri said.  "All I want is one opportunity," Romeri said.

For the family of Bremmer, a woman who lived alone, attended Mass daily and "wouldn't hurt a fly," Romeri doesn't deserve another chance.  For them, any amount of time he serves is too little for the heartbreak he caused.  They oppose his ever being released, saying the only thing cruel and unusual was the crime he committed....

Pennsylvania leads the nation in the number of juveniles jailed for life, according to the Campaign for the Fair Sentencing of Youth, which opposes that penalty.  Pennsylvania has 444 such inmates, followed by Michigan at 346 and Louisiana at 332, the Washington-based group says.  The Juvenile Law Center of Philadelphia puts Pennsylvania's number closer to 480, including one inmate in Graterford state prison who has spent 59 years behind bars.

But what each of those prisoners can now expect remains unanswered.  The Supreme Court didn't establish guidelines for how states should proceed in light of its ruling.  It didn't even specifically say its decision was retroactive, though attorneys on both sides of the issue say they believe it is....

Bremmer was slain Nov. 9, 1978, after surprising Romeri during a burglary at her Oak Street home in which he and his co-defendant, 17-year-old Michael Reinhard, got away with $10 to $20, police said....  Reinhard pleaded guilty to third-degree murder and was sentenced to nine to 20 years.  He was released from prison in 1988, having spent 91/2 years behind bars.

In Reinhard's case, returning to the streets was not a problem.  He completed his sentence on Nov. 13, 1998 — 20 years to the day from his arrest — without ever violating the conditions of his parole, records from the Pennsylvania Board of Probation and Parole show.

Some related posts on Miller:

August 26, 2012 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (4) | TrackBack

A local iPad innovation in technocorrections for sex offenders

Though surely not as big a deal as a big patent win in court, Apple shareholders should be pleased by this local article from Georgia reporting on a new corrections use for one of its signature products.  The article is headlined "Sheriff deputies use iPads to make sex offender checks," and here are excerpts:

The Muscogee County Sheriff's office is stepping into the 21st century. Deputies working in the sex offender squad are getting new tools to make checks on sex offenders easier. It's out with the old and in with new technology. Muscogee County Sheriff Deputies with the Sex Offender Squad are using iPads to check up on sex offenders. Sheriff John Darr says the iPads will save time and eliminate an excessive paper trail.

"You've got some of these sex offenders that has files of fifty or more pages," Sheriff Darr said. "Now you are going to be able to put it all in one little area."

The new iPad fleet cost a little more than $2,000, which came from the U.S. Marshal's Department. For now, only two deputies will have access to the new technology. They will run checks on the 387 registered sex offenders in Muscogee County. "It makes it more persuasive in this day of technology juries expect us to be able to show them pictures of things, videos of things they want to see that," District Attorney Julia Slater said.

Each sex offender's information is logged into the iPad. Now all a deputy has to do is scroll through the pages of documents in each offender's file. If they break the law, District Attorney Julia Slater says they will be prosecuted.

August 26, 2012 in Criminal Sentences Alternatives, Sex Offender Sentencing, Technocorrections | Permalink | Comments (8) | TrackBack