September 8, 2012
"Retribution as Revenge and Retribution as Just Deserts"The title of this post is the title of this interesting looking new article now up at SSRN authored by Monica Gerber and Jonathan Jackson. Here is the abstract:
Public attitudes towards law-breakers shape the tone and tenor of crime-control policy. The desire for retribution seems to be the main motivation underpinning punitive attitudes towards sentencing, yet there is some confusion in the research literature over what retribution really means. In this paper we distinguish between retribution as revenge (as the desire to punish criminal offenders to retaliate a past wrong by making the offender suffer) and retribution as just deserts (as the preference to restore justice through proportional compensation from the offender).
Results from an online survey (n=176) provide evidence of two distinct dimensions of retribution, but we also show that these two dimensions have different ideological and motivational antecedents, and have different consequences in terms of the treatment of criminal offender. We find that retribution as revenge is associated with the motivation to enforce status boundaries with criminal offenders, as well as ideological preferences for power and dominance (as expressed by social dominance orientation) and in-group conformity (as expressed by right-wing authoritarianism). Endorsement of retribution as revenge also predicts the support of harsh punishment and the willingness to deny fair procedures. By contrast, retribution as just deserts is mainly predicted by a value restoration motive and by right-wing authoritarianism. After controlling for revenge, retribution as just deserts predicts support for procedural justice in the criminal courts. We conclude with the idea that beliefs about proportionality and compensation work as a buffer against the negative effects of revenge.
State legislator talking up bringing the death penalty back to IllinoisAs reported in this local piece, a "downstate lawmaker plans to introduce a bill to reinstate the death penalty in Illinois." Here are more of the interesting details:
Among other interesting aspects of this story, I find especially appealing the suggestion of bringing back only a streamlined death penalty in which it appears felony murder would not be a capital crime and which only would make the most aggravated of killers death eligible. Such confinements on the application of the death penalty can minimize many (though not all) of the problems with the administration of capital punishment stressed by many (though not all) death penalty opponents.
Sen. William Haine (D-Alton), tells the Illinois Radio Network he believes former Gov. George Ryan was “absolutely incorrect” when he commuted the sentence of all Death Row inmates before leaving office in 2003. He also tells the network that he believes Gov. Pat Quinn was “wrong” to support a statewide ban on the death penalty, which was passed last year.
Under the new death penalty Bill Haine is proposing, acts of terrorism, mass murder, and murder during rape would qualify for the death penalty. He says such crimes as the Aurora, Colo., movie theater massacre, the Sikh temple shootings outside Milwaukee, and the shooting in Tucson, Ariz., that killed six people and injured U.S. Rep. Gabrielle Giffords would warrant the death penalty under his plan, the network reported.
Haine also downplayed the wrongful convictions that led Ryan to place a moratorium on the death penalty in 2000, telling the network that there were only “some flaws in just 13 cases out of several thousand.”...
Haine told the Illinois Radio Network he may introduce the reinstatement bill during the fall veto session in November, and hopes to get enough votes to override a veto by Quinn.
September 7, 2012
Montana medicial marijuana activist gets (way-below-guideline?) probation sentenceAs reported in this local article, headlined "Medical marijuana activist Daubert gets probation in federal drug case," a high-profile federal defendant got a low-level punishment in Montana yesterday. Here are the details:
Tom Daubert, who led the push for the voter-approved law legalizing medical marijuana in Montana, was sentenced Thursday to five years’ probation in a federal drug case. “I’m feeling relieved and grateful for the judge’s mercy and leniency,” Daubert said. “ … I’m very glad he recognized the uniqueness of my particular case.”
Daubert was among several people charged after federal agents raided medical marijuana businesses, including the Helena-based Montana Cannabis, around the state last year. Daubert had ended his interest in Montana Cannabis before the raids, something U.S. District Court Judge Dana Christensen noted in imposing probation.
Daubert pleaded guilty in April to a charge of conspiracy to maintain drug-involved premises, which carries a maximum potential sentence of 20 years in prison. Assistant U.S. Attorney Joe Thaggard sought a prison term of six-and-a-half to eight years for Daubert, calling him “a talented man, (who) also used those talents to exercise leadership in a conspiracy.”
But Christensen noted that Daubert had lobbied long and hard for stricter state regulations of Montana’s medical marijuana industry, and -– while he was still with Montana Cannabis -– routinely conducted tours through the company’s Helena greenhouse for lawmakers and law enforcement officers....
Christensen also sentenced Daubert to pay a total of $50,000 in forfeiture and other fees, which he’s already paid, as well as a standard $100 fee.
Daubert formed Montana Cannabis with partners Richard Flor, Chris Lindsey and Chris Williams. Flor, of Miles City, pleaded guilty in April to maintaining drug-involved premises and was sentenced to five years in prison. But the 68-year-old Flor, who suffered from dementia and other serious medical conditions, died in custody last month after being moved to Nevada from a private prison in Montana.
Lindsey pleaded guilty Thursday to maintaining drug-involved premises. Christensen set his sentencing for Dec. 13. Williams’ trial is scheduled for Sept. 24.
Peter Lacny, of Missoula, one of Daubert’s defense attorneys, noted he’d submitted more than 70 letters attesting to Daubert’s character, more than in any other case he’s handled. Christensen noted Thursday that he’d read all of the letters and also watched two DVDs, one called “Medical Cannabis in Montana,” and the other a documentary called “Code of the West.” The latter focused on legislative attempts to reform Montana’s vague medical marijuana law, and prominently featured Daubert’s efforts.
Daubert’s work on behalf of medical cannabis patients began years ago as the head of the advocacy group Patients and Families United, which fought for the 2004 voter initiative. That work won Daubert a loyal following, and Thursday’s sentencing hearing was crowded with supporters, who mobbed him with bear hugs after it was over.
The longtime lobbyist who has spent years working the halls of the Montana Capitol said he’s not sure whether he’ll stay politically involved. “One of the many heartbreaking moments for me right after the raids” occurred when he returned to the Capitol, he said. “Every time I walked into the Capitol, I felt its grandeur and beauty.” But after the raids, he said, “I lost completely any kind of good feeling going in there.”
I cannot find any press report on this sentencing to confirm my suggestion in the title of this post that the probation sentence here was way below the applicable sentencing guidelines. But, absent evidence to the contrary, I have to believe that the prosecutor's recommendation of a sentence of 6.5 to 8 years came from a guideline calculation setting the suggested sentence at a range of 78-97 months (which comes from an offense level of 28 for a first offender).
I quite interested in this sentencing result not only because of my enduring concern about federal/state conflicts in the criminalization and regulation of marijuana, but also because the guideline calculation, the sentencing process and the departure/variance decision by the sentencing judge here all are notable beyond the specifics of this case and this kind of offense. (Especially if commentors express interest, I may try to track down the sentencing filings in this case and comment more on its more interesting legal elements.)
My sense is that, in many types of cases, federal prosecutors consider very seriously a sentencing appeal when a district judge varies so much from the applicable guideline as appears here. And given the enduring importance of these kinds of issues in the Ninth Circuit, which I believe is home to 8 of the 17 states to legalize medical marijuana, a strong argument could be made that the government ought to appeal in order to clarify the natural and proper application of the sentencing laws in this setting. That said, I would predict that federal prosecutors will not ultimately appeal because a fear of the consequences of a loss were they to take these matters to the Ninth Circuit in this particular high-profile setting.
September 6, 2012
Fourth Circuit finds clearly erronoues district court findings on federal sex offender civil commitment
The Fourth Circuit has a lengthy and intricate opinion concerning a sex offender federal civil commitment proceeding today in US v. Wooden, No. 11-7226 (4th Cir. Sept. 6, 2012) (available here). Here is how it begins and ends:
It is pretty rare to see a district court's detailed factual finding reversed as "clearly erroneous," but sex offender cases seem to have a way of bring out some legally rare events.
Approximately three months before Walter Wooden was to be released from federal prison, the government sought to commit him as a "sexually dangerous person," 18 U.S.C.A. § 4248(a) (West Supp. 2012), under the civil-commitment provisions of the Adam Walsh Child Protection and Safety Act of 2006 (the "Act"), Pub. L. No. 109–248, 120 Stat. 587 (codified as amended in scattered sections of 18 and 42 U.S.C.A.). After an evidentiary hearing, the district court held that the government failed to prove Wooden suffered from pedophilia and failed to prove he would have serious difficulty refraining from re-offending. The court therefore dismissed the government’s petition and ordered Wooden released. The government appeals. For the reasons set forth below, we reverse the district court’s order and remand for reconsideration of the government’s petition on the existing record.....
To summarize, we hold that the district court erred in its conclusion that the application of the Act to Wooden violated the Due Process and Equal Protection Clauses of the United States Constitution. We also conclude that the record does not support the district court’s determination that Wooden does not "suffer[ ] from a serious mental illness, abnormality, or disorder" because he no longer suffers from pedophilia, 18 U.S.C.A. § 4247(a)(6), nor does the record support the district court’s determination that Wooden would not have "serious difficulty refraining from sexually violent conduct or child molestation if released," id., and we hereby reverse those factual findings as clearly erroneous.
Accordingly, we reverse the district court’s judgment dismissing the government’s petition seeking to commit Wooden, and we remand the matter to the district court for reconsideration. On remand, the district court shall reconsider, on the basis of the existing record and in light of the questions about the district court’s original analysis and the concerns about the existing evidence raised in this opinion, whether Wooden is a sexually dangerous person within the meaning of the Act.
New report examines how prison spending impacts higher ed in CaliforniaAs reported in this local article, headlined "Prison Spending Affecting Higher Education in California: Report," a new report in California "looked at 30 years worth of data and crunched the numbers to show a long-term trend between state spending on prisons and on higher education." Here is more about the report (which I will post if/when I find it on-line):
California is spending 1,370 percent more money on prisons today compared to 1980 levels. NBC Bay Area got the first look at a report from Los Altos-based, non-partisan research group California Common Sense (CCS) published Thursday....
[A]ccording to Director of Research Mike Polyakov, California spent $592 million on corrections in 1980.... That spending has jumped to $9.2 billion in 2011.
Meanwhile, higher education spending has decreased. A trend in what University of California and California State University faculty is being paid was detected in the research. “What we found is faculty salaries have decreased about ten-percent since 1990,” Polyakov said.
At the same time, Polyakov said prison guard salaries reached a record high in 2006. “The average salary we calculated was somewhere in area of $100,000. Today, it’s closer to $75,000.” So their pay has come down in the last few years, but CCS researchers found that correctional officers are still making anywhere from 50 to 90 percent above market rate compared to the rest of the country.
California Correctional Peace Officers Association (CCPOA) spokesperson Ryan Sherman said it’s an unfair comparison because the cost of living in California is so high. “Buying a house in the Bay Area is extremely expensive. There’s a number of prisons in the Bay Area and so the officers need to be compensated appropriately in California. CHP officers are paid more than correctional officers and it’s the same standards, same hiring practices they go through so I don’t know that they’re paid too much. I think they actually deserve more," Sherman said....
Polyakov warns if this trend doesn’t reverse quickly and substantially enough, there could be major brain drain out of California because professors at public universities are getting paid too little. "They’re behind market rates," Polyakov said. "If you can’t pay your faculty as much as the other universities, as a comparable university does, well eventually they’re going to go there.”...
Gov. Jerry Brown was in office when the state spent five times more on higher education than on prisons. NBC Bay Area caught up with him at a rally for Prop 30, which would increase sales and income taxes to help fund higher education. Brown blamed the skyrocketing corrections spending on the prison-building boom.
“What happened in the intervening years is 23 prisons were built, and instead of getting three-percent of the general fund, it went as high as eleven-percent. We’re reversing that. Prisons are only going to get 7.5 percent, and that’s a real reduction in our prison system.”
Polyakov and CCS' point is that that may still not be enough. For example, the CCPOA is set to start salary increases again next year. “In 10 to 20 years, these are going to be really important issues. Everything from the higher education funding. Are we going to have enough college prepared students 10 years down the line?” Polyakov asked.
UPDATE: With thanks to the commentor who provided the link, the report discussed in this post is available here.
Lengthy New Yorker piece about confidential informantsThis new piece in The New Yorker discusses the harmful realities faced by some offenders working as confidential police informants. (And this NPR segment discusses the issue further). Here is an excerptfrom the piece:
Informants are the foot soldiers in the government’s war on drugs. By some estimates, up to eighty per cent of all drug cases in America involve them, often in active roles .... For police departments facing budget woes, untrained C.I.s provide an inexpensive way to outsource the work of undercover officers. “The system makes it cheap and easy to use informants, as opposed to other, less risky but more cumbersome approaches,” says Alexandra Natapoff, a professor at Loyola Law School in Los Angeles and a leading expert on informants. “There are fewer procedures in place and fewer institutional checks on their use.” Often, deploying informants involves no paperwork and no institutional oversight, let alone lawyers, judges, or public scrutiny; their use is necessarily shrouded in secrecy.
“They can get us into the places we can’t go,” says Brian Sallee, a police officer who is the president of B.B.S. Narcotics Enforcement Training and Consulting, a firm that instructs officers around the country in drug-bust procedures. “Without them, narcotics operations would practically cease to function.”
Every day, offenders are sent out to perform high-risk police operations with few legal protections. Some are juveniles, occasionally as young as fourteen or fifteen. Some operate through the haze of addiction; others ... are enrolled in state-mandated treatment programs that prohibit their association with illegal drugs of any kind. Many have been given false assurances by the police, used without regard for their safety, and treated as disposable pawns of the criminal-justice system.
September 5, 2012
Third Circuit requires more rigorous approach to supervised release conditionsThe Third Circuit handed down a notable opinion today in US v. Murray, No. 11-3196 (3d Cir. Sept. 5, 2012) (available here), which effectively reviews a good bit of doctrine and procedure concerning the imposition of supervised release conditions. Here is how the opinion gets started:
This opinion struck me as blog-worthy because litigation over supervised release conditions for sex offenders is sure to keep increasing in the years ahead, and because the Third Circuit panel was forced to remand largely because the district court was so ready to impose additional onerous conditions on the defendant without even bothering to make the necessary findings. For these reasons, I cannot help but wonder if this Murray ruling represents only the tip of a problematic supervised release iceberg.
In 2004 in the District of New Jersey, Charles Murray pleaded guilty to traveling interstate to engage in illicit sexual conduct with a minor. Later that same year, in a separate case in the Eastern District of Pennsylvania, he pleaded guilty to possession of child pornography. For these offenses, he was sentenced to an aggregate term of 95 months' imprisonment, to be followed by concurrent three-year terms of supervised release. Both of Murray's sentencing judges imposed upon him various special conditions of supervised release that, for example, require him to register as a sex offender and to submit to unannounced searches of his computer.
After Murray was released from prison in July 2010, he moved to the Western District of Pennsylvania. That District thus assumed jurisdiction over him for the remainder of his term of supervised release. Though Murray had not violated his existing supervised release conditions, the Probation Office sought to modify them to bring them in line with the conditions of release that are typically used in the Western District. Some of the Probation Office's proposed conditions were duplicative of those already mandated by the Eastern District of Pennsylvania and District of New Jersey, but others were new. The District Court granted the Probation Office's request and imposed several new, more stringent conditions on Murray. Murray now appeals. For the reasons that follow, we will remand this case to the District Court.
Should Prez Obama become much more aggressive on judicial appointments if he gets a second term? How exactly?The question in the title of this post is prompted by this commentary from Professor Pam Karlan in the Boston Review, which carries the headline "Empty Benches." Here are excerpts:
Recent Republican administrations have pursued a judicial nomination strategy that seeks to appoint young, deeply committed conservative lawyers to the federal district courts and courts of appeals. Republican activists pressed judicial nominations as a priority, and conservative presidents and senators worked hard to get these nominees confirmed. The result is not just a deep farm team of potential Supreme Court nominees, but also a host of conservative judges inscribing their views of constitutional law and their interpretations of statutes in thousands of cases that never reach the Supreme Court. If their cases are appealed to the top, then those judges’ opinions shape the terms of the debate in the high court.
By contrast, the Obama administration has done relatively little to bring the courts back into balance. When Obama was sworn into office, there were 55 vacancies on the federal bench. There are now more than 75, and Obama will likely “become the first president since Reagan, and possibly much earlier, to finish his first term with more vacancies than he inherited,” according to Alliance for Justice. (Vacancies weren’t tracked before the Reagan years.)
To be sure, much of the problem is conservative obstructionism. Several of the president’s most prominent nominees have been filibustered. Many others have been victims of “blue slips”—an internal Senate procedure that allows either senator from a nominee’s home state essentially to block a nomination. Even candidates who ultimately are confirmed by overwhelming votes have faced a series of procedural roadblocks. And the prospect of having to put their careers on hold has probably dissuaded many qualified candidates even from seeking nominations.
But conservative obstruction is not the only problem. During the period when Democrats held a filibuster-proof senate, the administration moved far too slowly to make nominations. Granted, it was a busy time, with the economic crisis, two Supreme Court openings, and health care reform occupying the administration’s attention. But the delay also reflects a sense that judicial appointments are less important than other policy levers and that the president’s base does not really care about the issue.
Moreover, while the current administration has achieved an admirable degree of gender and racial diversity among its picks (nominating roughly two times more women and persons of color, by percentage, than the preceding administration had), its court of appeals nominees are generally older than their conservative counterparts. And very few of them have backgrounds either as public-interest lawyers for liberal or progressive causes or as scholars who have responded to conservative legal thought.
The administration’s inability to fill vacant seats on the federal bench has both immediate and long-term effects. Right now, more than half of Americans live in jurisdictions facing what the Administrative Office of the U.S. Courts calls “judicial emergencies”: their empty benches can’t handle heavy caseloads. Because criminal prosecutions take priority, plaintiffs with civil claims — workers, victims of government misconduct, consumers, and others — face severe delays in vindicating their rights.
In the longer term, vacancies accrued during a liberal-leaning administration that remain open for succeeding conservative administrations to fill will ensure that courts continue to skew to the right, meaning that progressive legislation and regulations will be undercut when it comes time to enforce them. The lack of a vigorous judicial response to conservative versions of originalism and “strict construction” — which often means little more than a cramped reading of broadly worded statutes and constitutional provisions — will bias popular discussion and debate.
Professor Karlan's answer to the questions in the title of this post seem clear: via this commentary, she is essentially urging an Obama Administration to make a concentrated effort to "appoint young, deeply committed" liberal lawyers with a background as "public-interest lawyers for liberal or progressive causes or as scholars who have responded to conservative legal thought." (Notably, Karlan's own professional background fits her description, but at age 53 I wonder if she even considers her "generally older" than her own view of the ideal Obama nominee.)
I share Professor Karlan's view that President Obama and others in his administration probably ought to give more attention and emphasis to judicial nominees, especially given the large number of judicial emergencies that can negatively impact the administration of justice in so many ways. That said, I am more inclined to praise the Obama team's efforts to date, particularly for its ability to bring much greater gender and racial diversity to the federal bench. (My chief disappointment on this front has been Obama's apparent eagerness to elevate persons who are already judges rather than often seeking to bring in bold new perspectives into the judiciary.)
I wonder if readers have thoughts on this front (which, of course, impacts sentencing law, policy and practice in many ways). In particular, I wonder if anyone would urge the Obama Administration to start gearing up for a massive post-election judicial appointment push soon if Obama is elected to a second term. I do not know if any re-elected president has ever put forward a huge bunch of judicial nominations in the early days of a second term (or even in the closing period of his first term when a lame duck senate could perhaps be prodded into some confirmation activity). But it wold be quite an impressive spectacle if the Obama Administration could put up candidates for every open judgeship not long after the election. (The same might be said, for that matter, about a possible Romney Administration.)
Following the money surrounding medical marijuana initiative in ArkansasThis local story, headlined "Financial side of medical marijuana on ballot in Arkansas," provides a detailed account of investments on the competing sides in the Arkansas ballot initiative over medical marijuana. Here are the basic detail:
Thousands of dollars has been spent to put the Arkansas Medical Marijuana Act on the ballot and now with a lawsuit against the state of Arkansas to remove the act, thousands more will be spent to fight it.
It's an issue that is getting individuals and national organizations to open their checkbooks. "It's been a full on campaign for a little over a year now," says Chris Kell, spokesperson for Arkansans for Compassionate Care. It is a non-profit campaign instrumental in putting the Arkansas Medical Marijuana Act on the ballot.
"We've raised a lot of money from Arkansans from very generous support financially from Marijuana Policy Project," says Kell. The Marijuana Policy Project is a national non-profit agency that works to reform marijuana laws. So far, they've spent more than $250,000 to get medical marijuana legalized in Arkansas.
"We are entirely a member supported organization. We have over 50,000 dues paying members and basically when we go into these campaigns, we like to focus on whatever we can do to get the issue in front of the voters. In this case, paying for petition gatherers and public education," says Morgan Fox with MPP.
"Our funding comes from individuals and churches right here in Arkansas and that's what I would expect to be the case with this campaign as well," says Jerry Cox, Director of the Family Council Action Committee. It is a group formed by four Arkansas non-profit agencies (Family's First, The Arkansas Family Coalition, The Arkansas Faith and Ethics Council and Family Council) fighting to remove the Arkansas Medical Marijuana Act from the ballot. They recently filed a lawsuit against the state of Arkansas saying the ballot title did not adequately explain the measure.
Cox says fundraising has just begun and only a few thousand dollars is being used to fight the measure right now but he expects that number to change. "I would expect our funding to come from right here in Arkansas and it should because the people here in Arkansas are the ones most affected if this measure passes," says Cox.
Recent related post:
September 4, 2012
Despite legislative "future" repeal, Connecticut death penalty to face trialAs explained in this Hartford Courant article, headlined "Prosecutors Will Take Stand In Death Penalty Bias Trial," the application of the death penalty in Connecticut is due to go on trial in state court tomorrow. Here are the details:
Chief State's Attorney Kevin T. Kane is expected to be one of the first witnesses Wednesday in the long-awaited habeas corpus trial on claims by condemned killers that Connecticut's death penalty is racially, ethnically and geographically biased.
Kane and other state prosecutors -- including New Haven State's Attorney Michael Dearington, who successfully sought the death penalty for Cheshire home invasion killers Steven Hayes and Joshua Komisarjevsky -- will likely testify about their decisions to pursue death by lethal injection for certain accused murderers, and sentences of life in prison for others.
Starting Wednesday and for several weeks, the judge, lawyers, court staff and witnesses in the case will travel to Northern Correctional Institution in Somers where the trial is being held in a prison dayroom. Northern houses Connecticut's death row. The public can view the proceedings through a live video feed being shown at Superior Court in Rockville where habeas corpus petitions are usually heard. The unusual trial plan was created after correction officials expressed safety concerns about the death row inmates all being in the same courtroom at once in Rockville....
Repeal of the death penalty by lawmakers earlier this year raised questions about whether the discrimination trial should be put on hold until the state Supreme Court decides the constitutionality of the repeal for future crimes. The historic vote at the legislature in April abolished the death penalty for future crimes but allows executions for those who committed capital crimes before the new law was passed.
Superior Court Judge Samuel J. Sferrazza decided to move ahead with the case, which has languished for years. Sferrazza in July rejected requests by the death row inmates involved in the habeus corpus trial to amend their petition to raise new issues related to the state's decision to abolish capital punishment for future crimes. Sferrazza said those issues could be raised in a separate petition without delaying consideration of the discrimination claims.
Death row inmates' claims of bias date back to 1994 when Sedrick Cobb asked for the opportunity to present statistics to demonstrate that racial discrimination influenced the death penalty. Cobb, who is black, had been convicted in the December 1989 rape and killing in Waterbury of 23-year-old Julia Ashe of Watertown. Ashe was white. Cobb was eventually told by the state Supreme Court that he would have to lodge his claims about racial bias in a habeas petition.
Federal district court concludes sex-change operation medically necessary for transgender prisonerAs effectively reported in this new post at the WSJ Law Blog, "a federal judge in Boston has ordered Massachusetts authorities to provide a taxpayer-funded sex-change operation for a transgender prisoner." Here is more about the ruling from the WSJ Law Blog (which also provides this link to the opinion):
Chief U.S. District Judge Mark Wolf said he based his ruling on the recommendations of doctors at the commonwealth’s Department of Correction who prescribed sex-reassignment surgery as “the only form of adequate medical care” for Michelle Kosilek, who used to go by “Robert.”
Kosilek is serving life in prison without the possibility of parole for the 1990 murder of his wife.
Judge Wolf, describing his 126-page order as “unprecedented,” said that denying Kosilek the surgery was a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment. Prison officials opposed the operation, saying they couldn’t provide security for Kosilek were he to receive a sex change — an argument Judge Wolf described as “pretextual.”...
Specialists have diagnosed Kosilek with severe gender identity disorder, and since 2003 he has been receiving female hormones. Kosilek lives in the general population of an all-male prison in Norfolk, Mass. Despite the hormone treatment and psychotherapy, Kosilek has attempted to castrate himself and twice tried to commit suicide, according to court documents....
A spokeswoman for the Massachusetts Department of Correction, Diane Wiffin, said, ”We are reviewing the decision and exploring our appellate options.” A lawyer for Kosilek, Frances Cohen of Bingham McCutchen LLP, said she was “pleased and gratified that we got such a thoughtful and full decision from the chief judge.”
The ruling in this case is sure to engender lots of talk-show discussion, but I encourage readers of this blog to take the time to at least read the introduction to the opinion (which itself runs 23 pages) before expressing any views on the merits of the decision. Everyone should, of course, read all 126 pages of the full opinion before reaching any firm conclusion about the ruling and whether and how an appeal to the First Circuit might proceed. But I will be content to hear comments after a review of the introduction, which should be sufficient to allow at least informed initial judgments about whether this is just another example of Reagan-appointed federal judges going all crazy activist in a high-profile health care case.
Ninth Circuit opinion provides distinct perspective on "he said/she said" regarding prisoner rape allegationsThe Ninth Circuit released an interesting opinion today in Wood v. Beauclair, No. 10-35300 (9th Cir. Sept. 4, 2012) (available here), which gets started this way:
Plaintiff-Appellant Lance Conway Wood is a state prisoner in Idaho. Wood allegedly engaged in a romantic, but not sexual, relationship with a female prison guard, Sandra de Martin. Wood alleges that both during and after the relationship, Martin perpetrated sexual acts on him without his consent. He filed a civil rights complaint under 42 U.S.C. § 1983 alleging constitutional violations of the First, Fourth, and Eighth Amendments.
The district court granted summary judgment to defendants on Wood’s Eighth Amendment claims finding that the romantic relationship between Wood and Martin was consensual and, therefore, Wood implicitly consented to Martin’s sexual conduct. Having consented, the district court held, Wood could not state an Eighth Amendment claim. Wood appeals.
The appeal involves sexual abuse of prisoners by those supposed to protect them, the prison guards. Unfortunately, this is a serious problem in our prisons today but when prisoners seek redress for their abuse, often the state argues it has no liability because the prisoner consented to the sexual conduct. As we explain more fully below, because of the enormous power imbalance between prisoners and prison guards, labeling a prisoner’s decision to engage in sexual conduct in prison as “consent” is a dubious proposition.
Intriguing account of how Justices deal with last-minute capital appealsThis new Sidebar column by Adam Liptak in the New York Times, headlined "To Beat the Execution Clock, the Justices Prepare Early," provides details of how SCOTUS handles capital cases as a scheduled execution looms. Here are excerpts:
[The Supreme] court goes to extraordinary lengths to get ready, and its point person is a staff lawyer named Danny Bickell. “Cases where there is an execution date,” he said with a sigh, “that’s where I come in.” Mr. Bickell’s formal title is emergency applications clerk, but capital defense lawyers have an informal title for him, too. They call him the death clerk.
In remarks at a conference of lawyers specializing in federal death penalty work..., Mr. Bickell provided a rare inside look at the Supreme Court’s oversight of the machinery of death in the United States. It starts with a weekly update.
“Every Monday morning,” Mr. Bickell said, “I put out a list to the court of all the executions that are scheduled in the country in the next six or seven weeks, and that gets distributed to all of the justices.”
The Supreme Court clerk’s office is famously helpful to lawyers who have questions about the court’s rules and procedures, but in capital cases it goes further. “As the date approaches,” Mr. Bickell said, referring to impending executions, “I will be in touch with the attorney general’s office. I will be in touch with you, if you are representing the inmate, and with the lower courts, trying to figure out what is pending below and what is likely to make its way up to the Supreme Court.
“Once we make contact about 10 days or two weeks before the scheduled execution, I will start asking you to forward me everything that you file in the lower courts. Once you forward it to me, I forward it on to the law clerks and to the justices so that they can begin reviewing the case.”...
[I]ndividual justices almost never rule by themselves on requests to halt executions. “I would say 99.9 percent of the time the circuit justice is going to refer the application to the full court, and all nine justices are going to act on the application [for a stay],” Mr. Bickell said.
He added that the court always makes sure it can rule on such applications in time for its decision to matter, even in states not inclined to wait for word from the justices. “The court won’t always act on it by 7 o’clock,” he said. That hour, 7 p.m., is important because it is when Texas executes people, Eastern time. The state has executed seven inmates this year.
“If we’re getting to the point where we’re short on time — it’s 6:30 or 6:15 for a scheduled 7 o’clock execution — I will call my contact” at the state attorney general’s office to see “whether they’re going to go forward with the execution while the case is pending or if they’re going to hold off and wait,” Mr. Bickell said.
If the state will not wait, the court will give itself time to think and to vote. That responsibility again falls to the justice in charge of the judicial circuit. “If we’re told they’re going to go forward with it and they’re not going to wait,” Mr. Bickell said, “the practice of the court recently — this has happened with Justice Thomas a few times last term — is the justice will issue a temporary interim stay.” Justice Clarence Thomas oversees the 11th Circuit, which covers Alabama, Florida and Georgia.
"Sex Offender Exceptionalism and Preventive Detention"The title of this post is the title of this notable symposium paper by Professor Corey Rayburn Yung, which is now available via SSRN. Here is the abstract:
The emerging war on sex offenders, as typical of wartime mentality, has been marked by substantial deviations from established legal doctrine, constitutional protections, and the rule of law. Because of a high level of panic among the general population about sex offenders the use of preventative detention for sex offenders has received little attention or scrutiny. While the population of the detention facility at Guantanamo Bay has slowly decreased, the number of persons in state and federal detention centers dedicated to sex offenders has continued to climb. With the courts largely rubber stamping the federal civil commitment of sex offenders allowed under the Adam Walsh Child Protection and Safety Act (AWA) in 2006, the path has been cleared for an enormous expansion of sex offender detention.
Because of the limited attention given to these detentions, they represent a particularly dire threat to American liberties. The normal societal and institutional checks against government abuse embodied in the media, public, Constitution, and courts have essentially been removed. We authorize government to detain indefinitely those who are deemed “sexually dangerous” at our peril. Instead of waiting for someone to commit a wrong, the government acts to restrict liberty of persons who have yet to commit a wrong (but the government believes will likely do so in the future). The criminal justice system offers plenty of opportunities for the government to prosecute someone before harm is done using inchoate and conspiracy crimes. To go beyond those already broad tools, the circumstances should be highly exceptional, the danger should be real and imminent, and the net should be cast narrowly. In the case of sex offender civil commitment, the circumstances are no more dangerous than for other serious crimes, the risk is speculative based upon pseudo-science, and the net is far too broad. Because of these aspects of sex offender civil commitment laws, America should fundamentally reconsider its approach to fighting sexual violence. Laws like AWA, premised on myths that allocate substantial resources in a never ending war, do not create a just or better society.
Interesting report on how Florida prosecutor approaches Graham and MillerOver the long weekend, the Tampa Tribune had this interesting article about the impact and import of Graham and Miller for Florida's juvenile offender. The piece is headlined "Courts grappling with juveniles' life sentences," but I found most notable the discussion of a Florida prosecutor's approach to Graham and Miller in light of Florida law and procedure:
Prison inmates who committed murder when they were juveniles have a chance to one day walk free because of a U.S. Supreme Court ruling that overturned automatic life sentences without parole for juvenile killers. Now the courts have to figure out what to do with about 15 Hillsborough County convicts and hundreds in Florida.
The full impact of the June ruling — as well as a decision last year that barred all life without parole sentences for juveniles who commit crimes other than murder — remains to be seen. In answering the question about the constitutionality of such sentences, the court created a slew of other questions about what sentences would be considered appropriate.
"The only way we can get further clarification of what is permissible and what is not is through trial and error," said Michael Sinacore, felony chief for the Hillsborough County State Attorney's Office. "We have to have cases where sentences get imposed, and the sentences get appealed and the appellate courts will weigh in on whether whatever was done is proper."...
"With Graham, we're getting a pretty good feel for how the courts are treating it, but the Florida Supreme Court has not weighed in yet," Sinacore said. "The U.S. Supreme Court has not weighed in on what term of years would be appropriate. That could take years, if ever."...
Sinacore said the position of his office in these non-homicide cases is to calculate the life expectancy of defendants then advocate for a sentence that takes parole and prison credit into account, allowing a defendant to become eligible for release a few years before the end of his life.
The office takes a different approach in the homicide cases addressed in the June Supreme Court decision, Miller vs. Alabama. In those cases, the state attorney and Florida Attorney General Pam Bondi maintain that state law reverts to what it was before life without parole became the automatic sentence on May 1, 1994.
So, defendants convicted of first-degree murder for killings committed when they were juveniles would have their sentences become life with the possibility of parole after 25 years. Therefore, there would be no need to hold new sentencing hearings for them, if this position is upheld by the courts....
In a quirk of the law, this would not work with defendants convicted of second-degree murder, Sinacore said. "Under the former law you could not get life without parole for a first-degree murder, but you could for a second-degree murder and for a non-homicide offense." Sinacore said this happened because of the way the law developed with the death penalty. The 25-year parole requirement for first-degree convicted murderers who did not get a death sentence was an enhancement. At the time, defendants convicted of other crimes could be eligible for parole earlier, at the judge's discretion, or they could be required to serve life without parole.
"The 25-year parole eligibility was specific to capital offenses, which would be capital sexual battery and capital murder," Sinacore said. "Second-degree murder was a life felony; somebody could be sentenced to life in the judge's discretion. So if the judge used discretion, as opposed to a mandatory sentencing for life, you could get life without parole even under the previous version of the statute."
Because of that, he said, the Miller decision means juvenile killers convicted of second-degree murder will be entitled to new sentencing hearings "unless by some bizarre chance, the judge, at the time of sentencing, actually considered the status of the juvenile's development and how they would continue to develop in the future and all the issues that the Supreme Court says you have to take into consideration -- the maturity of the child basically."
September 4, 2012 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
September 3, 2012
"The GOP platform’s surprisingly progressive stance on crime"The title of this post is the headline of this astute recent Washington Post piece. Here are excerpts:
Four years ago, Republicans devoted a section in their platform to the War on Drugs, lamenting the “human toll of drug addiction and abuse” and vowing to “continue the fight against producers, traffickers, and distributor of illegal substances.”
That plank is conspicuously missing from the GOP platform this year. The fight against illegal drugs is only mentioned in passing, mostly with reference to drug cartels and the ban on using controlled substances for doctor-assisted suicide.
Policy experts agree that the omission is significant. “This is less a ‘tough on crime’ document than you would have expected. And leaving out the War on Drugs [is] quite astounding,” says Mark Kleiman, a crime policy expert and professor at UCLA. “It’s a bit more of a libertarian attitude,” says Marc Levin, who runs a conservative criminal justice reform project called “Right on Crime” that’s attracted the support of Newt Gingrich and Grover Norquist.
What’s more, the 2012 platform includes new provisions that emphasize the importance of rehabilitation and re-entry programs to help ex-prisoners integrate back into society — using language that Kleiman describes as “a lot less ‘lock ‘em up and throw away the key.’”
“While getting criminals off the street is essential, more attention must be paid to the process of restoring those individuals to the community,” the platform says. “Prisons should do more than punish; they should attempt to rehabilitate and institute proven prisoner reentry systems to reduce recidivism and future victimization.” The document also criticizes the “overcriminalization of behavior,” though it doesn’t elaborate on the point much further.
Both Kleiman and Levin believe it’s partly the outgrowth of a prison-reform push on the part of GOP governors whose state budgets have been saddled with high incarceration expenses. In recent months, Pennsylvania Gov. Tom Corbett, Ohio Gov. John Kasich, and Gov. Chris Christie have embraced crime reform legislation to support the kind of rehabilitation programs that the GOP platform now advocates, with some also reducing jail time for non-violent offenders....
To be sure, there are still some aggressively “law-and-order” provisions in the platform, some of which go farther than the 2008 version. The previous platform called for mandatory sentences for “gang conspiracy crimes, violent or sexual offenses against children, rape, and assaults resulting in serious bodily injury.” This year, the provision has been expanded to include all “gang crimes, repeat drug dealers, robbery, and murder.”
But overall, the platform reveals a notable policy shift for the GOP, although it’s hasn’t been one that either side has mentioned much in this year’s election.
Some recent and older related posts:
- Reform records notable (though not so far noted) at Republican National Convention
- Could Romney appeal to independents and minorities with bold crime and punishment vision?
- A Beastly articulation of my (foolish?) hope candidate Romney might embrace the Right on Crime movement
- Ohio's Republican legislature, prodded by Republican gov, enacts major felon reentry reforms
- "The Right Sentencing: Conservatives backtrack on long prison sentences"
- Is it really true that "conservatives and liberals are increasingly united" on criminal justice reform?
- "Right on Crime: The Conservative Case for Reform" officially launches
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- "Conservatives latch onto prison reform"
California Supreme Court details restrictions on successive habeas filingsAs reported in this effective piece from The Recorder, headlined "State Supreme Court Puts Strict Limits on Habeas Petitions," that California Supreme Court late last week issued this very lengthy unanimous opinion discussion the problem of excessive capital habeas filings. Here are excerpts from the press account of the ruling:
Frustrated by 500-page briefs in capital habeas corpus cases, the California Supreme Court issued its own 120-page ruling Thursday laying out strict new limits and warning of sanctions if they're not followed.
The court harshly criticized the defense lawyers in In re Reno, 12 C.D.O.S. 10049, labeling various portions of their petition "untimely," "improper," "patently meritless," "grossly misleading" and based on "stock justifications." But it stopped short of issuing sanctions, as it had threatened to do before argument in the case, which had caused a storm in the capital defense bar. Instead, the court cautioned that violating its new rules, which include a 50-page limit on successive habeas petitions, could lead to sanctions and State Bar discipline in the future.
Abusive habeas petitions "along with other factors have created a significant threat to our capacity to timely and fairly adjudicate such matters," Justice Kathryn Mickle Werdegar wrote for a unanimous court. "Some death row inmates with meritorious legal claims may languish in prison for years waiting for this court's review while we evaluate [other prisoners'] petitions raising dozens or even hundreds of frivolous and untimely claims."
The Sacramento-based victim rights group Criminal Justice Legal Foundation immediately hailed the new limits as "a first step to pare back the time and tax dollars wasted on unnecessary, repetitive appeals on claims that typically have nothing to do with the guilt of the murderer."
But one of the defense lawyers in the case, James Thomson of Berkeley, said the limits could lead to more litigation in federal court over unexhausted habeas claims. "When you go back to federal court you're going to be limited to what you raised in state court," he said. "It may cause a lot more problems than it solves."...
The court set out procedural rules for habeas petitions 18 years ago in In re Clark, Werdegar noted. But in the intervening years, "experience has taught that in capital cases, petitioners frequently file second, third and even fourth habeas corpus petitions raising nothing but procedurally barred claims." Those petitions require "several weeks if not months of dedicated work by members of the court" while rarely justifying their untimely filing.
Werdegar found those transgressions particularly troubling given what she described as California's generally favorable rules for habeas litigation. "Vis-à-vis other states, we authorize more money to pay post-conviction counsel, authorize more money for post-conviction investigation, allow counsel to file habeas corpus petitions containing more pages, and permit more time following conviction to file a petition for what is, after all, a request for collateral relief." At the same time, she acknowledged the court's ongoing challenge finding sufficient qualified counsel to take on death penalty habeas cases.
Consequently, the court announced that while there would continue to be no limit on initial habeas petitions, successive petitions must be limited to 50 pages. They also must spell out which claims have been raised and rejected before, which could have been raised earlier, which are "truly new," and which have been deemed unexhausted by a federal court. That information, the Supreme Court said, should be included in a table that may run an additional 10 pages.
While not imposing sanctions in this case, Werdegar added, "attorneys (and parties) in future cases are forewarned" that failure to observe the limits "may result in financial sanctions and/or having this court refer the offending attorney to the State Bar for potential discipline."
Thomson said he had a hard time imagining how counsel could observe the new limits in a complex death penalty case. Just setting out the statements of facts, procedural history, jurisdiction and unlawful restraint typically takes 20 or more pages, he said. "That's not going to leave much room to fully develop the new claims you have to raise," he said. When counsel return to federal court, many will face judges who want to know why all federal claims weren't fully exhausted, he said he expects.
Thomson stressed that in his case, the previous post-conviction lawyer for Reno declared that he'd failed to raise claims he should have, and an independent defense lawyer validated that admission. "I did what a lawyer is supposed to do when protecting a client's interest," he said.
In my view, the issues and problems facing the California Supreme Court might be labelled "the revenge of AEDPA." Before Congress via AEDPA put strict limits on successive habeas petitions brought in federal court, capital defense lawyers would usually be content to head over to federal court with habeas petitions right after a first state habeas action was unsuccessful. But now that capital defendants really only get one bite at the federal habeas apple, it makes sense for them to seek to keep biting off as much as they are allowed to chew in state courts. Add in the need for defense counsel to preserve constitutional issues under the Fifth, Sixth and Eighth Amendment that seem often to be "evolving" in recent years to benefit defendants, and it comes as little surprise that the California Supreme Court is tired of having to wade through all the stuff that defense counsel may feel compelled to throw against the habeas wall in the hope that something will stick.
For these reasons (and others), I have often thought a special kind of clemency-type administrative proceeding ought to be made available to state capital defendants after they complete a state habeas appeal but before they bring a federal habeas action. Often new information about a crime or a defendant can emerge in capital appeals which might prompt state authorities to be willing to take a defendant off death row if the defendant would be willing to stop challenging his conviction. Some formal mechanism to enable an "equitable" resolution to some death sentences before defendants head to federal court (perhaps combined with a complete prohibition on successive state habeas petitions) might bring a fair an efficient resolution to a lot of capital cases that otherwise seem destined to drag on in both state and federal courts for many years and even decades.
September 2, 2012
After six capital case reversals over two decades, should Kansas give up on the death penalty?The question in the title of this post is prompted in part by this AP piece headlined "Critics: Death penalty must go; Activist says growing number of people against capital punishment." Specifically, these excerpts from the story makes me wonder whether even strong supporters of capital punishment might conclude that, in the Jayhawk State, the capital punishment game just ain't worth the candle:
A leading death penalty opponent says it's time for Kansas to stop sentencing criminals to be executed after the latest appealed conviction was overturned, the sixth such reversal in six cases before the state's high court. Donna Schneweis, chairwoman of the Kansas Coalition Against the Death Penalty, says she realizes the odds of repealing the 1994 law are slim, but a growing segment of society is changing its view on capital punishment in the United States....
Attorney General Derek Schmidt said "it's always possible" that the law would get repealed, but he supports keeping it as an option. "I think that with each year that passes and an increasing body of case law that we are inching closer to a law that can be carried out," said Schmidt, a Republican and former state senator.
Republican Gov. Sam Brownback has spoken out in the past about the death penalty, including his presidential run in 2007 when he said the nation should strive to create a culture of life. He said at the time that it should be held out for special cases, such as Osama Bin Laden or other terrorist figures. Sherriene Jones Sontag, the governor's spokeswoman, said Friday that Brownback supports the death penalty "when there are no other options to protect society."...
The last execution in Kansas was in June 1965 by hanging. The latest case to be overturned was announced Aug. 24 when the court struck the conviction of Scott Cheever for the 2005 shooting death of Greenwood County Sheriff Matt Samuels. Cheever admitted to killing the sheriff at a southeast Kansas home but said it wasn't intentional and he was under the influence of methamphetamines.
The court struck down the conviction because of testimony given by an expert witness presented by prosecutors who divulged information about a psychological evaluation of Cheever when his case was originally filed in federal court. Cheever's case began at the federal level because the Kansas death penalty law was ruled unconstitutional by the state court, a decision reversed by the U.S. Supreme Court....
Sen. Terry Bruce, a Hutchinson Republican and member of the Senate Judiciary Committee, said the justices have been "hyper technical" when interpreting the state's death penalty law but that many of the errors identified would be found with any trial. "It may be that the judiciary is going to scrutinize these cases so much that we never will have an execution in Kansas," he said.
I wonder if a strong but sober capital punishment supporter might actually get behind repeal of the Kansas death penalty if hw were to agree with Senator Bruce's suggestion that the Kansas Supreme Court will likely continue to reverse any and every capital sentencing that comes its way. Notably, as the most recent reversal highlights, without a seemingly functional capital punishment system, the worst-of-the-very-worst murderers in Kansas (such as a Jayhawk version of Osama Bin Laden or similar terrorist) could and should be capitally prosecuted by the federal government. (Moreover, I suspect the Tenth Circuit would be generally less likely to reverse a capital sentence than the Kansas Supreme Court.)
Though every case is different and brings up different feelings for different families of victims, I would suspect that many victims' families would prefer the closure of an LWOP sentence than to an initial death sentence that is all but certain to be reversed and then perhaps require retrials. And an LWOP sentence is likely to be more cost-effective, too. Then again, if just the possibility of a death sentence may help Kansas prosecutors efficiently get deserving killers to agree to an LWOP sentence, perhaps one can consider capital punishment to still play a useful role even if there is a strong likelihood that the Kansas Supreme Court will never find a capital sentence it can approve.
New York claims success with prison shock campsAs detailed in this AP article, New York is citing to evidence of success at reducing its offender recidivism rate through the use of shock incarceration programs. Here are the details:
As this article highlights, slowly but surely we are learning more about what kinds of correctional programs are more likely to reduce recidivism among various offender populations.
New York corrections officials say they have graduated 45,000 inmates from military-style boot camp over the past 25 years and data shows that most don't commit new crimes. Established around the country in the 1980s as an alternative to regular prison, the so-called "shock camps" got mixed reviews and several states dropped them. New York kept three camps going with a model they say is effective and cutting down the rate of repeat offenses and saving money.
Only prisoners convicted of nonviolent crimes who volunteer and sign contracts go to the camps. Many drop out or are kicked out before completing the six months of mandatory physical training, manual labor, education and drug counseling, scrutinized by drill instructors. The prize for completing the course is a shortened sentence....
Some observers say the lower recidivism is predictable because it's a self-selected and motivated group of inmates who prove capable of finishing the program. They also note that the lower recidivism, far lower in the first year, starts rising after that. "Our view is that it's somewhat mixed, but there are definitely some positive elements to it," said Jack Beck, who directs the visiting project for the Correctional Association of New York. "The regimentation is so different from what these individuals will experience on the outside, it's very hard to translate those experiences into something when they return home."
New York has 1,087 inmates at the shock camps, Moriah in the Adirondacks, Lakeview in western New York's Chautauqua County, and Monterey in the Finger Lakes region. All are minimum-security without fences and set in rural areas. Before the state shut the Summit camp southwest of Albany in 2011 to save money, there were 1,284 offenders in the shock program. The system has some 56,000 inmates in 60 correctional facilities, down from a peak 71,600 in 1999.
Revisions in drug sentencing laws and diverting more inmates to treatment programs have reduced the available pool for shock programs. Initially intended for prisoners up to age 23, they have been opened to inmates up to age 50 with less than three years left on their sentences.
Corrections spokeswoman Linda Foglia said they estimate having saved $1.34 billion because of the shortened incarceration for 45,135 shock graduates, including 3,355 females, over the past 25 years. Meanwhile, New York data show 7 percent of those who completed the program from 2007 to 2009 returned to prison within one year, compared to 19.9 percent of all inmates released from state prison. Recidivism data after three years show a 26.4 percent return rate for those who completed shock in 2007, compared with 42 percent for all releases that year....
A 2003 National Institute of Justice research review said boot camps proliferated nationally starting in the late 1980s, with 75 adult programs by 1995. Five years later, one-third had closed and there was a 30 percent population drop in remaining state programs. While "almost universally successful improving inmates' attitudes and behavior during the course of the program," the review said those changes did not translate to reduced recidivism, with limited exceptions. Boot camps that lasted longer, like New York's six months, and offered more intensive treatment and post-release supervision, did better.
September 2, 2012 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (4) | TrackBack