September 18, 2012
Another day of prison (over)populations headlines
Just about any morning I could fill this blog with stories about overcrowded prisons, but this morning these three headlines from three major news sources really caught my eye:
From the AP, "Ill. prison population all-time high"
From the Los Angeles Times, "California calls prison release plan unsafe"
From the Philadelphia Inquirer, "Prison population soaring on stiffer punishment, straining city budget"
September 17, 2012
"Ohio inmate says he's too obese for execution"I am not sure I need to add much the to above-quoted headline from this new Columbus Dispatch story, but full story actually includes a number of weighty details:
A condemned Ohio inmate who weighs at least 480 pounds wants his upcoming execution delayed, saying his weight could lead to a "torturous and lingering death."
Ronald Post, who shot and killed a hotel clerk in northern Ohio almost 30 years ago, said his weight, vein access, scar tissue and other medical problems raise the likelihood his executioners would encounter severe problems. He's also so big that the execution gurney might not hold him, lawyers for Post said in federal court papers filed Friday. "Indeed, given his unique physical and medical condition there is a substantial risk that any attempt to execute him will result in serious physical and psychological pain to him, as well as an execution involving a torturous and lingering death," the filing said.
Post, 53, is scheduled to die Jan. 16 for the 1983 shooting death of Helen Vantz in Elyria....
Inmates' weight has come up previously in death penalty cases in Ohio and elsewhere. In 2008, federal courts rejected arguments by condemned double-killer Richard Cooey that he was too obese to die by injection. Cooey's attorneys had argued that prison food and limited opportunities to exercise contributed to a weight problem that would make it difficult for the execution team to find a viable vein for lethal injection. Cooey, who was 5-foot-7 and weighed 267 pounds, was executed Oct. 14, 2008.
In 2007, it took Ohio executioners about two hours to insert IVs into the veins of condemned inmate Christopher Newton, who weighed about 265 pounds. A prison spokeswoman at the time said his size was an issue.
In 1994 in Washington state, a federal judge upheld the conviction of Mitchell Rupe, but agreed with Rupe's contention that at more than 400 pounds, he was too heavy to hang because of the risk of decapitation. Rupe argued that hanging would constitute cruel and unusual punishment. After numerous court rulings and a third trial, Rupe was eventually sentenced to life in prison, where he died in 2006.
Ohio executes inmates with a single dose of pentobarbital, usually injected through the arms. Medical personnel have had a hard time inserting IVs into Post's arms, according to the court filing. Four years ago, an Ohio State University medical center nurse needed three attempts to insert an IV into Post's left arm, the lawyers wrote.
Post has tried losing weight, but knee and back problems have made it difficult to exercise, according to his court filing. While at the Mansfield Correctional Institution, Post "used that prison's exercise bike until it broke under his weight," according to the filing.
After too much previous sentencing success, lawyers for "Millenium Bomber" propose longer prison termAs reported in this AP article, headlined "As 3rd sentencing nears, Ressam’s lawyers suggest longer term — 30 to 34 years — in bomb plot," the lawyers representing the so-called "Millenium Bomber" are gearing up for their third round of sentencing after having been, according to the Ninth Circuit, unreasonably successful in their advocacy the first two times around. Here are the details and the backstory:
Ahmed Ressam, an Algerian terrorist arrested on the eve of the new millennium in a rental car packed with explosives, has been sentenced twice before by a federal judge. Each time, U.S. District Judge John C. Coughenour ordered him to serve 22-year terms for his plan to bomb Los Angeles International Airport.
Ressam is scheduled to be sentenced for a third time next month. The difference this time? He’s expected to get more than 22 years.
Each of Coughenour’s previous sentences was struck down after prosecutors appealed. Most recently, the 9th U.S. Circuit Court of Appeals held that 22 years was simply too low for the mass murder Ressam tried to commit, and the sentence would have led to his release at age 51 — young enough to still pose a danger to American citizens.
Ressam’s attorneys, who previously recommended he face as little as 12 years, have conceded that he should face at least three decades to satisfy the appeals courts, but no more than 34 years. They suggest that he poses little future danger to the public because his former confederates know that for a time, he cooperated with investigators....
The Justice Department is seeking a sentence of life in prison. In a document filed with the court, Assistant U.S. attorney Helen Brunner noted that in the 11-plus years since Ressam was convicted, “The United States has experienced the extreme misfortune of learning first-hand precisely what horrors Ressam’s plans would have unleashed if astute law enforcement and good fortune had not intervened.”...
Ressam’s case has been vexing because he started cooperating after he was convicted and was interviewed more than 70 times by terror investigators from the U.S., Canada, Great Britain, Spain, Italy, Germany and France. Information he provided helped convict several terror suspects; prompt the famous August 2001 FBI memo titled “Bin Laden determined to strike in U.S.,;” and contribute to the arrest of suspected Osama bin Laden lieutenant Abu Zubaydah, who remains in custody without charges at Guantanamo Bay, Cuba.
However, Ressam subsequently recanted all of his cooperation when it became clear that the prosecutors weren’t going to recommend that he serve less than 27 years in prison. The recanting forced the DOJ to drop charges against two suspected co-conspirators, Samir Ait Mohamed and Abu Doha.
In previously sentencing Ressam, Coughenour noted that before he went to trial, the government offered him a 25-year sentence if he would plead guilty — no cooperation necessary. Ressam refused, but Coughenour said that any discount for Ressam’s cooperation, while it lasted, should start from that 25-year offer. Hence, the 22-year sentence. The appeals court rejected that rationale.
Ressam has spent the past seven years in solitary confinement at the U.S. Penitentiary at Florence, Colo., where the bed, desk, sink, toilet and shower in his 87-square-foot cell are all made of poured concrete. His sentencing is set for Oct. 24.
Jerry Sandusky's sentencing scheduled for October 9, 2012This Reuters article reports on the latest scheduling information for what seems likely to be a closely watched, but somewhat unsuspenseful, forthcoming state sentencing in Pennsylvania. here are the basics:
I will be truly shocked if Sandusky does not get a sentence that ensures he will die in prison. The only real suspense will be how the state judge in this case chooses to structure the sentence and whether, like the federal sentencing judge in the Bernie Madoff case, considers maxing out the sentence in order to try to "send a message" to both the victims and society concerning this kind of offense.
Convicted child molester Jerry Sandusky will face sentencing immediately after an October 9 hearing to determine if the former Penn State assistant football coach is a sexually violent predator, a judge said on Monday.
The hearing will be held at the Centre County Courthouse in Bellefonte, Pennsylvania, Judge John Cleland said in an order published online. A sentencing conference will be held October 8.
Sandusky, 68, was convicted in June of 45 counts of child molestation as part of a scandal that shook college football and focused national attention on child sex abuse. He faces up to 373 years in prison for sexually abusing 10 boys over a period of 15 years, including while he was the highly regarded defensive coordinator at powerhouse Pennsylvania State University.
Designating Sandusky a sexually violent predator would put him under stringent reporting requirements if he is put on probation after release from prison. The court will consider the recommendation of the state Sexual Offenders Assessment Board. Normally a determination hearing takes place the same day as sentencing, but the scale of Sandusky's case could mean sentencing would take place later.
Dan Filler, a law professor at Philadelphia's Drexel University, said Cleland had options in sentencing, but the outcome would be the same for Sandusky. Cleland could have the 45 sentences run one after the other or at the same time. He also could impose the maximum or minimum under sentencing guidelines, and take Sandusky's lack of prior convictions into consideration, Filler said.
"In the end, however, judges are very politically sensitive in cases like this. Whatever the guidelines call for, I believe the judge will impose a sentence that is functionally life without hope of parole," he wrote in an email before the hearing date was set.
"Conservative group looks to abolish Montana death penalty"The title of this post is the headline of this notable new press report from the Treasure State. Here is how it starts:
A conservative political group opposed to the death penalty is calling for an end to capital punishment in the wake of a recent court ruling that found the state’s method of execution unconstitutional. “Conservatives dislike waste and inefficiency. That is why we should cast a critical eye when the state is involved with the business of executing people,” said former Republican state Sen. Roy Brown of Billings.
Brown is on the advisory committee of Montana Conservatives Concerned About the Death Penalty. “When it takes over 20 years and hundreds of thousands of tax payer dollars for extra legal fees and court costs, it is obvious that the process is full of waste and inefficiency,” Brown said. Brown worked across the aisle with Democrats in the state Senate in past legislative sessions to try to end the death penalty in Montana.
Montana State District Court Judge Jeffrey Sherlock of Helena ruled Sept. 17 that the protocols by which death row inmates are executed in Montana violate both state law and the Montana Constitution. Sherlock’s decision requires that both the Legislature and the Department of Corrections act to make changes to the rules that govern an inmate’s execution.
However, critics of the death penalty say the ruling should catalyze opposition to the death penalty in the halls of the Capitol. “The ruling shines a bright light on the ineffectiveness and inefficiencies associated with capital punishment. Couple that with strong conservative leadership on the issue, and we are optimistic that we will abolish the death penalty in 2013,” said Steve Dogiakos, director of the conservative abolition group. “On the national level, there are a growing number of conservatives who are vocal about the problems of the death penalty.”
How should the law respond to those who kill before they are teenagers?The question in the title of this post is prompted by this lengthy new AP article discussing the debate over how Florida is dealing with Cristian Fernandez, who at age 12 was charged last year with the murder of a 2-year-old half-brother. Here are excerpts from the piece:
A decade before he was charged with murder, a 2-year-old Cristian Fernandez was found naked and dirty, wandering a South Florida street. The grandmother taking care of him had holed up with cocaine in a messy motel room, while his 14-year-old mother was nowhere to be found.
His life had been punctuated with violence since he was conceived, an act that resulted in a sexual assault conviction against his father. Fernandez' life got worse from there: He was sexually assaulted by a cousin and beaten by his stepfather, who committed suicide before police investigating the beating arrived....
Now 13, Fernandez is accused of two heinous crimes himself: first-degree murder in the 2011 beating death of his 2-year-old half-brother and the sexual abuse of his 5-year-old half-brother. He's been charged as an adult and is the youngest inmate awaiting trial in Duval County.
If convicted of either crime, Fernandez could face a life sentence — a possibility that has stirred strong emotions among those for and against such strict punishment. The case is one of the most complex and difficult in Florida's courts, and it could change how first-degree murder charges involving juvenile defendants are handled statewide.
Underscoring the unusual nature of the case, Fernandez' defense attorneys said they aren't sure how to proceed since the U.S. Supreme Court threw out mandatory life in prison without parole for juvenile offenders in June. Another complication involves whether Fernandez understood his rights during police interrogations....
Supporters of local State Attorney Angela Corey say she's doing the right thing by trying Fernandez as an adult: holding a criminal accountable to the full extent of the law. But others, like Carol Torres, say Fernandez should be tried in juvenile court and needs help, not life in prison. "He should be rehabilitated and have a second chance at life," said Torres, 51. Her grandson attended school with Fernandez and she has created a Facebook page to support him.
In other states, children accused of violent crimes are often charged or convicted as juveniles. In 2011, a Colorado boy pleaded guilty to killing his two parents when he was 12; he was given a seven-year sentence in a juvenile facility and three years parole. A Pennsylvania boy accused of killing his father's pregnant fiancée and her unborn child when he was 11 was sent this year to an undisclosed juvenile facility where he could remain in state custody until his 21st birthday.
The Justice Department said that 29 children under age 14 committed homicides around the country in 2010, the most recent year for which the statistics were available...
Based on psychological evaluations, prosecutors say that Fernandez poses a significant risk of violence. That's why he is being detained pre-trial — and why they charged him with two first-degree felonies.
Yet difficult questions remain for Judge Mallory Cooper: Should a child so young spend his life in prison? Does Fernandez understand his crimes, and can he comprehend the complex legal issues surrounding his case?
In August, Cooper ruled that police interrogations of Fernandez in the murder and sexual assault cases are not admissible, saying Fernandez couldn't knowledgeably waive his rights to remain silent and consult an attorney. Prosecutors are appealing.
The defense wants the charges dismissed, saying the U.S. Supreme Court ruling banning sentences of life without parole for juveniles makes it impossible for them to advise Fernandez since the Florida Legislature has not changed state law. Prosecutors say they never said they would seek a mandatory life sentence — they say the old Florida law that called for a 25-year-to-life sentence could apply.
Mitch Stone, a Jacksonville defense attorney who is familiar with the case, said Corey and her prosecutors are in a tough position. "I know they're good people and good lawyers," he said. "But if a resolution short of trial doesn't occur, this case is on a collision course to sending Cristian Fernandez to life in prison. That's why this is one of those very difficult cases. It's hard to understand what the appropriate measure is."
Related post on Fernandez case:
September 17, 2012 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack
September 16, 2012
If money can really buy elections, the death penalty will be dead in CaliforniaThe title to this post is prompted by this new article from California, which is headlined "Rich and famous in Silicon Valley, Hollywood backing campaign to abolish California's death penalty." Here are excerpts:
Proposition 34, a ballot measure that would abolish the death penalty in California, faces long odds at the polls. But it has a major advantage over the opposing campaign -- wealthy donors, from Silicon Valley executives to Hollywood actors, willing to write fat checks.
With less than two months to go before the election, Proposition 34's campaign has amassed more than $5.4 million to persuade California voters to get rid of capital punishment, dwarfing the paltry $208,000 gathered by a pro-death-penalty coalition of law enforcement and victims' rights groups.
From Netflix CEO Reed Hastings and new Yahoo CEO Marissa Mayer to actor Ed Asner and rocker Jackson Browne, the Proposition 34 campaign has a glittering roster of the rich and famous putting money behind the first vote on whether to retain the death penalty in California since it was reinstated in 1978....
But anti-Proposition 34 forces say there is enough entrenched sentiment for the death penalty that they don't need as much to get the message out, as long as voters hear from police, prosecutors and victims' families. "We know we are going to be out-raised because we don't have Hollywood celebrities and liberal do-gooders on our side," said McGregor Scott, a former Sacramento U.S. attorney heading the campaign against the measure. "Ours will be an old-fashioned, word-of-mouth, grass-roots" campaign....
Pundits say that with an issue such as the death penalty, it's hard to evaluate whether the "money talks" advantage in most political campaigns applies. "Normally you see something like that and say it's a slam dunk," said Larry Gerston, a San Jose State political-science professor. "But in this case, it's such an emotional issue for people that I don't think they need a campaign against it. And it's always harder to get a 'yes' vote on something than a 'no' vote."
Others agree, but say that the substantial money difference could tip the scales if the polls show a tight race as the Nov. 6 election approaches. Indeed, the Proposition 34 campaign has plans to run statewide television ads in the final weeks before the election.
"If law enforcement opposes this and nobody knows, that would be a disadvantage," said Thad Kousser, a University of San Diego political-science professor. "If you look at the general literature on propositions, especially in California, money matters on both sides."...
The two biggest donors to Proposition 34 so far are Nicholas Pritzker, CEO of the Hyatt hotels chain, and the Atlantic Advocacy Fund, a New York-based philanthropy established by billionaire Charles Feeney. Both have chipped in $1 million.
Silicon Valley's wealthy are also well-represented. They include Hastings, the Netflix CEO, who donated $250,000, and the Emerson Collective, a nonprofit headed by Laurene Powell Jobs, the widow of Apple's Steve Jobs. Emerson contributed $150,000.
For his part, Hastings believes the main argument in favor of Proposition 34 -- that the death penalty is a waste of money -- is a good reason to back it. "In California, we will save tens of millions of dollars every year if we change from the death penalty to life in prison without chance of parole," Hastings told this newspaper in an email exchange. "That money would be better spent on educating kids instead."
I never cease to be amazed and, I suppose, impressed that so many persons are so willing to devote time, energy and now a huge amount of money in order to help ensure murderers spend the their full natural lives in a cage rather than be potentially be subject to execution by the state. (And given than more people die as a result of drunk drivers in California each year than are on California's death row, I cannot help but wonder how many more lives might be saved if all these "wealthy donors, from Silicon Valley executives to Hollywood actors, [were] willing to write fat checks" to MADD of California or to help fund passive ignition lock technologies.)
That said, I think rich donors eager to end the California death penalty might devise some more clever means to push their agenda. Rather than just give money to an ad campaign, perhaps these rich folks should offer to create a special private fund to help pay for the college education of children of murder victims which would make payouts only if the death penalty were repealed. Personally, I think the $5 million+ now already dedicated to try to sway voters "would be better spent on educating kids instead."
Deep thoughts on deep punishment theory via SSRNOne of many reasons I like finding time to read papers on punishment theory is to see if and how new deep thoughts can be presented on a deep subject that has been debated since the start of recorded history. And, thanks to SSRN, here are two more new entries with deep thoughts on deep punishment theory:
More on the Comparative Nature of Desert: Can a Deserved Punishment Be Unjust? by Ronen Avraham & Daniel Statman
From the Consulting Room to the Court Room? Taking the Clinical Model of Responsibility Without Blame into the Legal Realm by Nicola Lacey & Hanna Pickard