September 29, 2012
Sex offenders claim First Amendment violated by local Halloween ordinance targeting themThe Ventura County Star has this interesting article, headlined "Lawsuit seeks to block Simi Valley's Halloween sex offender ordinance," reporting on a notable (and groundbreaking?) legal action against a common local law this time of year. Here are the details:
A federal lawsuit filed Friday seeks to block enforcement of Simi Valley's new Halloween sex offender ordinance, contending it is unconstitutional. The lawsuit alleges that the ordinance violates the First and 14th Amendments because it "suppresses and unduly chills protected speech and expression."
The suit was filed in U.S. District Court in Los Angeles by five registered sex offenders, three of their spouses and two of their children, all Simi Valley residents. They are identified only as John and Jane Does.
It's the first time one of the Halloween sex offender laws passed by a number of California cities, including Ontario and Orange, has been challenged in court, said Santa Maria attorney Janice Bellucci.
Bellucci, president of the board of a group called California Reform Sex Offender Laws, filed the suit, which also seeks unspecified financial damages, on behalf of the plaintiffs.
Simi Valley City Attorney Marjorie Baxter said the lawsuit is groundless. "We thoroughly researched the ordinance and I don't feel the lawsuit has any merit, and we will defend it vigorously," she said.
The Simi Valley City Council adopted the law — the only one of its kind in Ventura County — to prevent sex offenders from having contact with trick-or-treating children on Halloween. Championed by Mayor Bob Huber, a lawyer who is seeking re-election in November, the measure applies to the several dozen convicted child sex offenders who live in the city and are listed on the Megan's Law website.
The ordinance requires the offenders to post signs on their front doors saying, "No candy or treats at this residence." It also bars them from opening their doors to children on the holiday, displaying Halloween decorations or having exterior lighting on their property from 5 p.m. to midnight on Oct. 31....
The lawsuit argues that the ordinance prohibits "a discrete and socially outcast minority from expressing any publicly viewable celebration of Halloween" and "forces this group to impose a burden on their own safety and that of any person who resides with them by requiring them to turn off all exterior lighting at their residences on Oct. 31 every year." The ordinance also publicly shames the sex offenders "by mandating that they place a large content-specific sign on their door every year," the lawsuit contends.
But Councilman Mike Judge noted at the council's Aug. 20 meeting that the ordinance was limited to registered sex offenders on the Megan's Law website, which publicly lists their identities. "We're not branding them," Judge, a Los Angeles police officer, said. "They're already branded."
Bellucci argues that there are no reported instances of a child being molested while trick-or-treating. According to her group's website, the organization is "dedicated to restoring civil rights for those accused and/or convicted of sex crimes."
Two notably different new death penalty headlines
Here are links to two very different death penalty stories that broke yesterday:
September 28, 2012
"Crime not on presidential contest radar"The title of this post is the headline of this notable new USA Today piece, which includes these excerpts:
Presidents and lesser politicians have been delivered to victory more often than not for taking tough stands on crime. Yet during a year punctuated by mass shootings at a Colorado movie theater and temple in Wisconsin, crime has all but vanished from public discussion this campaign season.
In a presidential election cycle dominated by concerns for a faltering economy and unemployment, crime rated a forgettable asterisk earlier this month in a Gallup Poll, representing less than 1% of Americans who believed it was the nation's most pressing problem. "When the economy is as big a problem as it is, it kind of squashes out the others," said Frank Newport, Gallup's editor in chief....
According to polling data..., 2012 represents just one more presidential election in which the often-emotional issue of crime has ranked near the bottom of the public agenda. The last time crime rated as the top concern of the American public was in 1996, according to Gallup.
"The most important responsibility of an elected official is to provide for the safety of the people they represent, and we haven't heard much talk about that," said Jim Pasco, the FOP's executive director. "When there is the kind of violence that we have seen this summer, you do expect there to be a discussion about it," he said. "But it seems like it is the last thing on the public agenda."
Chuck Wexler, executive director of the law enforcement think tank Police Executive Research Forum, said the apparent lack of attention is "a sign of the times."
"Twenty years ago, the homicide rate was double what it is today," he said. "If we compare ourselves against ourselves, crime has declined fairly dramatically. But if we compare ourselves to countries like the United Kingdom, that's another story." There were more than 600 murders in Great Britain last year, compared to more than 13,000 in the U.S. "The gun issue is radioactive in this country for both Democrats and Republicans," Wexler said. "No one nationally has spoken about it. It's not even on the radar screen."
Long-time readers likely recall my laments that national crime and punishment issues failed to garner any significant attention in the 2004 or 2008 campaigns. Rather than curse this criminal justice darkness, I hope this weekend to do a post with timely federal crime and punishment questions that could be interesting and revealing during next week's first big presidential debate. In the meantime, I wonder if readers are inclined to complain or cheer the failure of any significant national politicians to give any real attention to these issues.
Some recent and older related posts:
- 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
- "The GOP platform’s surprisingly progressive stance on crime"
- When and how might pot prohibition or federal pot policy enter the 2012 Prez campaign?
Ninth Circuit orders hearing on bad plea advice over three-strikes sentencingThe Ninth Circuit today handed down a notable panel opinion in Miles v. Martel, No. 10-15633 (9th Cir. Sept. 28, 2012) (available here), concerning a possible Sixth Amendment violation based on bad plea advice concerning sentencing prospects. Here is how the opinion begins:
“[C]riminal justice today is for the most part a system of pleas, not a system of trials. . . . [T]he right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences.” Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012). Because of “[t]he reality [ ] that plea bargains have become so central to the administration of the criminal justice system . . . ,” Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012), the Supreme Court recently recognized that the Sixth Amendment right to counsel “extends to the plea-bargaining process. During plea negotiations defendants are entitled to the effective assistance of competent counsel.” Lafler, 132 S. Ct. at 1384 (internal citations and quotation marks omitted); see also Frye, 132 S. Ct. at 1407.
Petitioner-Appellant Tyrone Wayland Miles (“Miles”) claims that he received ineffective assistance of counsel during plea-bargaining process. He alleges that counsel advised him to reject a plea offer of six years’ imprisonment without alerting him that he was being charged with a crime that would qualify as a “third strike” under California law. He later entered an open plea and was sentenced to a three strikes sentence of twenty-five years to life in prison. Without granting an evidentiary hearing, the California Supreme Court summarily denied his state petition for a writ of habeas corpus. Following the United States Supreme Court’s recent decisions in Lafler v. Cooper and Missouri v. Frye, we reverse the district court’s denial of Miles’s petition for habeas corpus and remand to the district court to hold an evidentiary hearing on Miles’s claims.
State judge stays Pennsylvania execution scheduled for next weekAs reported in this local article, headlined "Judge stays execution of Terrance Williams," it now appears that Pennsylvania has hit a significant judicial road-block on the way to getting back to the business of executions. Here are the details:
Criticizing the prosecutor for "gamesmanship" and withholding evidence that would have likely convinced the jury not to impose a death sentence, Philadelphia Common Pleas Court Judge M. Teresa Sarmina today stayed Wednesday's execution of condemned killer Terrance Williams.
Sarmina, in a 45-minute oral opinion delivered to a courtroom packed beyond its 71-person capacity, said evidence that was withheld about the sexual proclivities of Williams' victim Amos Norwood, and the extent of the prosecution's deal with admitted accomplice Marc Draper had undermined confidence in the fairness of Williams' 1986 death sentence.
Sarmina, however, affirmed the guilty verdict against Williams in Norwood's murder. She said the District Attorney's office had the option of conducting a new penalty phase for Williams if it still wished to seek the death penalty.
Prosecutors had no comment after the judge's ruling although District Attorney Seth Williams was expected to make a public statement later today. Terrance Williams' attorney Shawn Nolan praised Sarmina's ruling and said it is "time for the District Attorney's office to end the appeals."
The prosecutors could file an emergency challenge to Sarmina's ruling with the state Supreme Court and the state's high court could reinstate Williams' Oct. 3 execution date. Andrea Foulkes, the assistant district attorney who prosecuted Williams in two murder trial in 1985 and 1986, could not be reached for comment....
In testimony last week before Sarmina, Foulkes insisted that she did not withhold evidence and that the information she had about the victim, a 56-year-old Germantown church volunteer who preyed on teenage boys, was nothing more than "bits and pieces." Sarmina, however, cited Foulkes' testimony that she suspected Norwood had sex with teenage boys and had a sexual relationship with the then 18-year-old Williams. "She was able to connect all the dots," Sarmina said. "Had a reasonable defense counsel been given all the dots, he also could have connected them."
Instead, the judge said, Williams' 1986 defense lawyer was given statements by Norwood's widow and minister that portrayed him as a kindly religious man. "They were sanitized statements," Sarmina added.
Sarmina's decision came a day after the state Board of Pardons agreed to hear for a second time Williams' plea for clemency plea, but put off any action in apparent deference to the court in Philadelphia. The board's action to rehear William's clemency plea reversed a Sept. 17 vote in which the panel failed to recommend that Gov. Corbett commute the killer's death sentence to life in prison without parole.
Related prior post:
Second Circuit reiterates that mandatory minimum statutes trump parsimony instruction of 3553(a)The Second Circuit has a brief sentencing opinion this morning in US v. Carter, No. 11-3605 (2d Cir. Sept. 28, 2012) (available here), which would have been huge news had it come out the other way. As resolved, the decision still seemed blog-worthy and here is how it begins:
This case reminds us of the tension in federal criminal law between two competing but overlapping systems for imposing a sentence. In most cases, a sentencing court computes the relevant range under the U.S. Sentencing Guidelines, now advisory under the teaching of United States v. Booker, 543 U.S. 220 (2005), before making its own determination of an appropriate punishment after considering the general sentencing factors in § 3553(a), including the “parsimony” provision that a sentence must not be “greater than necessary” to serve appropriate sentencing objectives. 18 U.S.C. § 3553(a). For certain criminal offenses, however, Congress has created a “mandatory minimum” term of imprisonment — a blunt directive that may require judges to give sentences that they consider unduly punitive. See Dorsey v. United States, 132 S. Ct. 2321, 2326–29 (2012) (describing the development of and relationship between these two sentencing regimes).
The question presented in this appeal is whether a statutory mandatory minimum provision binds a federal sentencing court when the relevant statute does not specify that it overrides the “parsimony” provision in § 3553(a). For the reasons stated below, we hold that a statutory mandatory minimum binds a sentencing court by explicitly providing a sentencing floor. The relevant statute need not specify that it overrides the “parsimony” provision or other general sentencing considerations in § 3553(a). Therefore, we affirm the judgment of the District Court.
"A Quantity-Driven Solution to Aggregate Grouping under the U.S. Sentencing Guidelines Manual"The title of this post is the title of this new paper by Kevin Bennardo now available via SSRN. Here is the abstract:
The United States Sentencing Guidelines Manual mandates the grouping of many multiple counts of conviction on an aggregate basis. In these instances, the Guidelines aggregate a specific quality of the multiple counts — often the amount of drugs or money — and determine the punishment based on the aggregated quantity.
This article first undertakes a review of the purposes of grouping under the Guidelines and concludes that grouping under the Guidelines’ other grouping provisions should precede grouping on an aggregate basis in order to minimize the influence of prosecutorial charging decisions. Second, the article analyzes the text, commentary, and effect of the aggregate grouping guideline and concludes that aggregate grouping is only appropriate when the offense level determination is based primarily on quantity or some other aggregable quality of the offense. Next, the article formulates a mathematical ratio by which to test whether the offense level for an individual offense guideline is determined based primarily on an aggregable or non-aggregable quality of the offense. The ratio is then applied to every offense guideline in the Manual as well as to the distribution of each controlled substance and listed chemical. This data is reproduced in a series of appendices. The article highlights anomalies in the data and identifies the specific offense guidelines that are improperly either subjected to or excluded from aggregate grouping under the current scheme. Lastly, in an appendix, the article sets forth the text of a proposed revised aggregate grouping guideline.
September 27, 2012
Intermediate Florida appeals court decides Miller is not to apply retoractivelyA helpful reader altered me to this (first?) significant ruling by Florida appeals court concerning the application of the Supreme Court's Miller holding to long final cases. Here are the basics from the starting portion of the extended opinion in Geter v. Florida, No. 3D12-1736 (3d Dist. App. Sept. 27, 2012) (available here):
On April 30, 2003, Geter was convicted of first-degree murder and sentenced to life imprisonment as a juvenile offender on June 23, 2003. On direct appeal, this Court affirmed Geter’s conviction and sentence on October 13, 2004. Geter’s three subsequent postconviction motions were denied by this Court without discussion, on October 28, 2005, September 2, 2009, and May 12, 2010, respectively. Geter now files this 3.800 motion seeking postconviction relief on the basis of the recent United States Supreme Court decision in Miller v. Alabama, 132 S. Ct. 2455 (2012). The issue before this Court is whether Miller applies retroactively to postconviction proceedings involving a juvenile homicide offender whose conviction of first-degree murder and sentence to life imprisonment was final prior to the Miller decision. We conclude that under Florida law, Miller cannot be applied retroactively to Florida postconviction proceedings where the life sentence was already final when Miller was rendered. Accordingly, we affirm the circuit court’s order that denied Geter’s motion for postconviction relief.
Some related posts on Miller and its potential impact in PA and eslewhere:
- All juvenile defendants get narrow procedural Eighth Amendment win in Miller
- Issue-spotting the mess sure to follow Miller's narrow (procedural?) ruling
- Basic mandatory juve LWOP head-count in light of Miller
- Data and resources to gear up for the coming Miller meshugas
- Guest post on Miller from Jennifer Bishop Jenkins, President of the National Organization of Victims of Juvenile Lifers
- Guest post on Miller from another thoughtful victim of a teenage killer
- Taking stock on what Miller is likely to portend
- "What is the fairest way for Pa. to deal with juvenile lifers petitioning for resentencing?"
- Another local perspective on another state juve LWOP sentence Miller could impact
- Pennsylvania Supreme Court hearing arguments on (first?) major Miller retroactivity cases
Arkansas Supreme Court rejects challenge to state medicial marijuana ballot initiativeThanks to How Appealing, I see via this AP article that the "Arkansas Supreme Court on Thursday upheld a proposed ballot measure that, if successful, would make the state the first in the South to legalize medical marijuana." Specifically, that court "rejected a challenge by a coalition of conservative groups who had asked the court to block the proposed initiated act from the November ballot or order the state to not count any votes cast on the issue." Here is more about the ruling and its import:
Arkansas will be the first Southern state to put the medical marijuana question to voters. Seventeen states and the District of Columbia have legalized it in some fashion. Massachusetts voters are also expected to vote on the issue this fall, while the North Dakota Supreme Court ruled a medical marijuana initiative can't appear on that state's ballot.
The conservative coalition argued that Arkansas' 384-word ballot question doesn't accurately describe other consequences of passing the 8,700-word law, including a provision that would allow minors to use medical marijuana with parental consent.
Justices disagreed and said the proposed law is fairly summarized in the question that will appear on the ballot. "Here, after reviewing the ballot title of 384 words, we conclude that the title informs the voters in an intelligible, honest and impartial manner of the substantive matter of the act," the ruling said....
Medical marijuana has never come before voters in the South partly because of the difficulty of getting such initiatives on the ballot. And conservative legislators throughout the region have not backed the efforts. The Washington-based Marijuana Policy Project has provided most of the funding for the campaign in Arkansas, contributing $251,000 to the effort.
Officials with the group said they stepped in after polling showed strong support for the measure in Arkansas. Group leaders also cite a "symbolic" value in passing a medical marijuana law in the South. "I think it's a sign that marijuana policy reform is an idea that is coming of age now across the nation, rather than just in the states where we've seen it so far," said Morgan Fox, the group's communications director. "It's really an important moment."
Gov. Mike Beebe, who is opposed to the proposal, told reporters on Thursday he doesn't believe the state's voters would legalize medical marijuana. Beebe said he's asked for an estimate of how much it will cost the state to regulate the dispensaries if the measure passes. "If I understand what I think I understand about it, if it passes, it's going to require a whole of administration from the health department," Beebe said. "I don't know where we're going to get it from."
The full unanimous ruling from the Supreme Court of Arkansas is available at this link.
New Amnesty International report assails California's use of solitary confinementAs reported in this Los Angeles Times piece, which is headlined "Report decries suicides, isolation cells in California prisons," a new report released today by Amnesty International details problems with California's use of segregated isolation. Here is part of the story behind the report:
California has more inmate suicides than any other state, a total that is rising even as its prison population falls. Almost half those deaths occurred in the system's segregation cells.
According to an Amnesty International report to be released Thursday, conditions within the state's security housing "breach international standards on humane treatment."
"It would crush you," said Tessa Murphy, an Amnesty International observer who was given unusual access to the isolation units at Pelican Bay and two other California prisons last November.
But California officials rebutted Amnesty's findings, insisting the state's security units "follow the national standard. They are clean. They are secure," said Terri McDonald, who is in charge of prison operations for the California Department of Corrections and Rehabilitation. She cited the constant monitoring of those units — the result of federal lawsuits over poor medical and mental healthcare in the state system. "We have not been inhumane," McDonald said.
There currently are more than 3,100 inmates living in California's maximum security segregation units, and thousands more in similar administrative segregation units. The windowless, 7- by 12-foot cells at Pelican Bay exceed international space standards for a single inmate. The only way in or out is through a perforated steel door that looks out onto a concrete wall.
Except for an unknown number of prisoners who have cellmates, Amnesty International reported that there was no contact with other inmates and little interaction with the guards — who monitor them via closed circuit cameras, open doors with remote switches and push food through slots.
Segregated prisoners do not have access to rehabilitation programs, the report said. They are permitted to exercise 90 minutes a day, inside a concrete enclosure through which a slice of sky is visible 20 feet overhead. Group therapy consists of inmates in individual holding cages lined up before a therapist; physicians examine ill inmates through the closed cell door.
According to state officials, the average stay in solitary confinement is 6.8 years — although California is set to begin a trial program next month that would allow compliant inmates out of isolation after four years. But Amnesty International reported that at least 500 prisoners have spent more than 10 years in isolation. Seventy-eight inmates have been segregated for more than 20 years. "There is no question … the conditions are among the worst in the nation," Murphy said.
The full AI report is titled "USA: The edge of endurance: Prison conditions in California's security housing units," and it is available via this link.
"California’s Proposition 34 and Proposition 36 expose red meat in a blue state"The title of this post is the headline of this notable commentary discussing the two big California sentencing inititative coming before voters this fall. Here is how the piece gets started:
Don’t believe the cable-news chatter about California being some bastion of weak-tea liberal values. When it comes to our criminal-justice system — and its penchant for mandatory-sentencing guidelines, gang enhancements and the death penalty — the Golden State is as red meat as they come. “It’s remarkably out of sync with the rest of the country,” contends University of the Pacific McGeorge School of Law professor Michael Vitiello.
Which is why two initiatives on this November’s ballot are rustling some eyebrows. The impressively funded, broadly supported Proposition 36 aims to modify a three-strikes law that voters overwhelmingly adopted way back in 1994. Specifically, Prop. 36’s authors want to make sure that anyone going away for 25 years to life on a third-strike conviction is being prosecuted for a serious or violent offense rather than for stealing videotapes....
Proposition 34, meanwhile, is taking on the death penalty itself — not because it’s unethical for a government to execute its own citizens, but because it’s too damn expensive. A study last year by former prosecutor and federal judge Arthur L. Alarcon says it cost California roughly $4 billion to snuff out 13 death-row inmates since voters reinstated capital punishment in 1978. Prop. 34 promises to save hundreds of millions of dollars a year, and put a chunk of that toward solving more murders and rapes.
Likewise, Prop. 36 makes its case on largely pragmatic grounds, with proponents dangling the juicy carrot of $70 million to $90 million in projected annual savings if the measure passes.
With two ballot initiatives that fly in the face of the accepted “tough on crime” paradigm, the question becomes whether California is experiencing something of a sea change when it comes to its counterintuitively hard-assed stance on crime and punishment.
The short answer is: nah. “I see only a weak trend, not one that’s going over a cliff,” observed Vitiello, an expert on sentencing reform.
Relatedly, last week the legal newspaper The Recorder had this lengthy article on Prop. 36 under the headlined "Third Try at Shrinking the Strike Zone Likely to Succeed."
September 26, 2012
Linking state pot initiatives to prior push back against ProhibitionJacob Sollum has this new piece on state marijuana reform efforts at Reason.com under the headline "The Marijuana Rebellion: State ballot initiatives aimed at legalizing pot pose a new challenge to prohibition." The piece begins with a reminder of state-level rejections of alcohol prohibition, as well as the latest polling numbers on pot initiatives:
By the time the 21st Amendment ended national alcohol prohibition in December 1933, more than a dozen states had already opted out. Maryland never passed its own version of the Volstead Act, while New York repealed its alcohol prohibition law in 1923. Eleven other states eliminated their statutes by referendum in November 1932.
We could see the beginning of a similar rebellion against marijuana prohibition this year as voters in three states — Washington, Colorado, and Oregon — decide whether to legalize the drug's production and sale for recreational use. If any of these ballot initiatives pass, it might be the most consequential election result this fall, forcing both major parties to confront an unjust, irrational policy that Americans increasingly oppose.
With six weeks to go before Election Day, Oregon's Measure 80, which would establish a commission charged with licensing growers and selling marijuana through state-run stores, seems to be in trouble. In a SurveyUSA poll this month, only 37 percent of respondents said they planned to vote yes, while 41 percent were opposed and 22 percent were undecided.
But the other two initiatives are polling strongly. According to a SurveyUSA poll conducted two weeks ago, 57 percent of Washington voters favor Initiative 502, which would authorize private pot stores regulated by the state liquor commission; only 34 percent were opposed. A SurveyUSA poll completed on September 12 found that 51 percent of Colorado voters support Amendment 64, which would allow home cultivation of up to six plants and create a licensing system for growers and retailers; 40 percent were opposed.
Neither of these measures is a sure thing by any means. California's Proposition 19, a marijuana legalization measure that was ultimately supported by 47 percent of voters in November 2010, polled above 50 percent in several surveys. But while the SurveyUSA approval number for Proposition 19 peaked at 56 percent in April 2010, dropping to 47 percent by September, support for the Washington and Colorado initiatives appears to be growing.
Some recent and older related posts:
- When and how might pot prohibition or federal pot policy enter the 2012 Prez campaign?
- VP candidate Paul Ryan says states should have right to legalize medical marijuana
- New astute articles on the modern realities of pot politics, policies and practices
- Prominent conservative Tom Tancredo supporting marijuana legalization initiative in Colorado
- Colorado the new "ground zero" for debates over pot prohibitions and policies
- Latest Colorado poll showing majority support for marijuana legalization ballot initiative
- "Medical Marijuana in Colorado and the Future of Marijuana Regulation in the United States"
A review of the year that was 2011 in federal sentencingThe US Sentencing Commission has this week released this basic report "Overview of Federal Criminal Cases, Fiscal Year 2011." Though there is no new remarkable data in this report, this overview provides an effective reminder of what the (still growing) massive federal sentencing system is all about. Here is part of the start of the report:
The United States Sentencing Commission received information on 86,361 federal criminal cases in which the offender was sentenced in fiscal year 2011. Among these cases, 86,201 involved an individual offender and 160 involved a corporation or “organizational” offender....
The vast majority of the cases reported to the Commission involve an individual defendant. Over the last decade, the number of these cases has increased every year except one. In fiscal year 2011, the increase was 2.7 percent over the number of such cases in fiscal year 2010. Cases involving immigration, drugs, fraud, or firearms continue to be the most common federal criminal cases and make up the vast majority of federal felonies and Class A misdemeanors. These four crime types have been the most common for the last decade. In fiscal year 2011, these crimes accounted for 83.0 percent of all cases reported to the Commission.
Immigration cases continued to be the fastest growing segment of cases in the federal system. In fiscal year 2011, there were 29,717 immigration cases reported to the Commission, an increase of 1,213 cases from the prior fiscal year. In the last ten fiscal years, the number of cases of this type has increased by 153.2 percent, while the total federal caseload has grown by 33.9 percent....
The number of drug cases has been relatively stable over the last five fiscal years, but because of the overall increase in federal cases, the portion of the criminal caseload attributable to those cases decreased to 29.1 percent in fiscal year 2011.... Firearms cases were 9.2 percent of the caseload in fiscal year 2011, a decrease of 2.4 percentage points from five years ago. The proportion of fraud cases over that period also was relatively stable at 9.8 percent in fiscal year 2011, but has declined slightly from 10.7 percent in fiscal year 2007....
The vast majority of convicted defendants plead guilty. In fiscal year 2011, more than 96 percent of all offenders did so, a rate that has been largely the same for ten years. When offenders pled guilty, 44.0 percent received a sentence below the applicable sentencing guideline range, either at the request of the government, at their own request, or initiated by the court. Approximately 61 percent (61.5%) of these below range sentences were requested by the government, usually because the defendant had provided substantial assistance to the government or had agreed to have his or her case handled as part of an early disposition program.
A little simple division brings a little more perspective to these number: with more than 86,000 federal sentencings of individuals in FY2011, the system averaged over 1,650 sentencings per week and thus more than 330 federal sentencing per federal work-day. Put even more starkly, in the 15 minutes it took me to put together this post, on average 10 more persons were sentenced by the federal district judges.
"Juvenile Offenders in Limbo under Outdated State Laws"The title of this post is the headline of this effectivenew report from the Juvenile Justice Information Exchange concerning some state struggles following the Supreme Court's recent Eighth Amendment rulings in Graham and Miller. Here are excerpts:
The Washington Court of Appeals ruling referenced above was announced in this "unpublished" state habeas opinion handed down last week. In addition, this local article, headlined "Rebuffed by Michigan Supreme Court, Attorney General Bill Schuette presses forward to keep juvenile lifers behind bars," provides more background on the efforts by the Michigan AG to prevent the Miller ruling from applying retroactively. It starts this way:
More than two years after U.S. Supreme Court decisions started throwing out mandatory death and life sentences for minors, judges in Washington, Illinois and dozens of other states still lack guidance on what to do with juveniles past and present convicted of murder and some other serious felonies.
“Courts are uncomfortable in trying to figure out what ‘life’ means in terms of years,” said Kimberly Ambrose, senior law lecturer at the University of Washington School of Law. She represented Guadalupe Solis-Diaz at the state’s Court of Appeals, arguing against a 92-year sentence he’s serving for six counts of first-degree assault and other charges for his role in a drive-by shooting. The then 16-year-old Solis-Diaz fired into a crowd in Centralia, Wash., in 2007, though did not injure his target or anyone else.
It’s not clear in Washington if those 92 years are equivalent to what the U.S. Supreme Court calls “life” sentences. The federal high court has definitively thrown out state sentencing laws that mandate life without parole for juveniles. Beginning with the 2005 Roper v. Simmons case and more recently with Graham v. Florida in 2010 and Miller v. Alabama in 2012, the court says that juveniles are not yet fully mentally developed, are less culpable and more capable of reform. Therefore, lower court judges must consider those and other mitigating factors when sentencing juveniles for both homicide and non-homicide offenses.
Solis-Diaz’ counsel at his original sentencing failed to mention that U.S. Supreme Court trend. That omission, said the state appeals court, was one of several mistakes that contributed to their decision this month to throw out Solis-Diaz’ 92 years, on grounds of ineffective counsel. “This is the first life-equivalent case to come before a Washington appellate court,” said Ambrose, speaking of non-homicide offenses.
But the court also noted it would not opine on any other sentence for Solis-Diaz. “The legislature is the appropriate body to define crimes and fix punishments. To the extent that Graham suggests that an opportunity for parole must be available for juvenile offenders convicted of non-homicide offenses, only the Legislature has the authority to amend the SRA [Sentencing Reform Act] to allow for such remedy,” the opinion reads....
Many judges are grappling with how to amend their current laws to comply with the U.S. Supreme Court rulings on juvenile sentences. Some state legislatures have yet to update laws to comply with the two-year-old Graham case. And most state legislatures have been closed since the June, 2012 Miller decision, so have had no chance to start thinking about it. Thus judges dealing with juveniles convicted of murder must figure out if it would apply to juvenile offenders sentenced before it, and how to handle appeals, all without legislative guidelines....
More than 100 people have been sentenced to life without chance of parole in Illinois for crimes committed as minors, according to a 2010 report by the National Conference of State Legislatures. Nationally, there are more than 2,500 juvenile offenders who have received this sentence in the states that did or do allow it, according to The Campaign for Fair Sentencing of Youth, an advocacy group....
Michigan’s Supreme Court declined to settle retroactivity in its state this month. Attorney General Bill Schuette asked the Court to rule out retroactivity on the life sentence of a man convicted of participating in an armed robbery as a 16-year-old. Instead, the court remanded the case for resentencing.
Attorney General Bill Schuette has lost his bid to have the state Supreme Court halt resentencing of juvenile lifers, so he is turning to the next best thing. Schuette will attempt to join a case currently before the state Court of Appeals, where judges will soon hear a request to reconsider the sentence of a man serving a mandatory life term for a killing at age 15.
The battle stems from a U.S. Supreme Court ruling in June that found mandatory life sentences for minors are unconstitutionally cruel. Schuette claims the ruling should not be retroactive. “This is the best opportunity we’re going to have to get an answer on retroactivity,” said Joy Yearout, spokeswoman for Schuette. “The decision will still be binding on all lower courts.”
Schuette argues the new mandate that mitigating circumstances, including age, must be considered before sentencing is not a “watershed event,” but a mere procedural change affecting only current and future cases.
The state Supreme Court on Sept. 1 rejected Schuette’s request to immediately settle the retroactivity issue in a 1993 murder case involving 16-year-old Cortez Davis, now 35. Instead, the court sent the case back to Wayne County Circuit Court for consideration, possibly forcing a long wait if the ultimate decision is appealed by either side.
September 26, 2012 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack
How might we define, assess and analyze judicial sentencing wisdom?The question in the title of this post is prompted by this intriguing looking new paper I came across on SSRN, titled "Judicial Wisdom: An Introductory Empirical Account and Research Agenda." The paper is by Jeremy Blumenthal and Daria Bakina, and here is the abstract:
We present the first empirical analysis of “judicial wisdom”: what it means to be a “wise judge.” We surveyed 40 federal judges; half listed characteristics of a “wise” judge and, to compare, half listed characteristics of an “excellent” judge. The factor models of judicial wisdom and of judicial excellence demonstrate the two concepts’ distinct nature. Judicial wisdom seems comprised of three traditional wisdom factors and one factor specific to the judicial role. We discuss the substantive models of judicial “wisdom” and “excellence,” and legal and policy implications, including the possibility of teaching judicial wisdom. We also raise directions for future research.
September 25, 2012
Prominent conservative Tom Tancredo supporting marijuana legalization initiative in ColoradoThe Huffington Post via this new entry headlined "Tom Tancredo Backs Legal Weed: 'Marijuana Prohibition Has Failed Us'," has alerted me to another prominent conservative voice speaking out in support of state marijuana reform efforts. Tom Tancredo is a former Republican congressman who is now endorsing Colorado's ballot initiative to legalize marijuana. Here is part of his explanation why in this commentary appearing in the Colorado Springs Gazzette:
Exactly 80 years ago, the people of this great state passed a ballot initiative declaring an end to the misguided big-government policy experiment that was alcohol prohibition. One year later, the federal government followed.
This November, the voters of Colorado have the opportunity to repeat history. On the ballot is Amendment 64, an initiative that would end marijuana prohibition in the state and regulate the production and sale of the substance.
In many ways, marijuana prohibition is very similar to alcohol prohibition. Nowhere is this more apparent than in their impact on public safety.
In the 1920s, alcohol prohibition led to the widespread proliferation of violent criminal organizations who corrupted politicians and law enforcement officials to illegally peddle booze to otherwise law-abiding citizens. Similarly, by keeping marijuana illegal for the last 75 years, we have created a black market that helps fuel some of the most dangerous terrorist organizations in the world....
I am endorsing Amendment 64 not despite my conservative beliefs, but because of them. Throughout my career in public policy and in public office, I have fought to reform or eliminate wasteful and ineffective government programs. There is no government program or policy I can think of that has failed in such a unique way as marijuana prohibition.
Our nation is spending tens of billions of dollars annually in an attempt to prohibit adults from using a substance objectively less harmful than alcohol. Yet marijuana is still widely available in our society. We are not preventing its use; we are merely ensuring that all of the profits from the sale of marijuana (outside the medical marijuana system) flow to the criminal underground.
Regardless of what ultimately happens on the federal level, we have an opportunity to stop pouring money into a failed system in Colorado. According to the Colorado Center on Law and Policy, we current spend anywhere from $25 to $40 million dollars per year arresting, citing, processing, and prosecuting marijuana offenders throughout the state. A recent report from the Colorado Center on Law and Policy found that savings achieved through eliminating these law enforcement costs, combined with increased tax revenues generated from the legal production and sale of marijuana, would net the state $60 million in the first year alone.
In addition to the economic and public safety arguments for ending marijuana prohibition, I also support Amendment 64 for a much broader, philosophical reason. Marijuana prohibition is perhaps the oldest and most persistent nanny-state law we have in the U.S. We simply cannot afford a government that tries to save people from themselves. It is not the role of government to try to correct bad behavior, as long as those behaviors are not directly causing physical harm to others....
Across the board, our current system of marijuana prohibition has failed. It has failed to protect our kids from drug dealers pushing other, far more dangerous drugs, it has failed to keep our borders safe, and it has failed to use taxpayer dollars in the most responsible and efficient manner possible. It is time to try something new.
Report from Council of State Governments indicates reduced recidivism in many statesI always enjoy reporting good crime and punishment news; I am thus pleased to highlight this press release from The Council of State Governments Justice Center’s National Reentry Resource Center discussing findings that "a number of states [are] reporting significant reductions in recidivism." The press release provides a summary of this policy brief, including these highlights:
The states profiled in the report show significant declines in their three-year recidivism rates based on data tracking individuals released from prison in 2005 and 2007. Texas and Ohio reported reductions of 11 percent, while the Kansas rate fell by 15 percent and Michigan’s rate dropped by 18 percent. Incorporating data through 2010 (and in some cases, through 2011), the report provides the most recent multi-state information available on recidivism....
US Senator Rob Portman (R, OH), a co-author of the Second Chance Act, applauded the states, including Ohio, for their accomplishments. “Second Chance Act programs, in collaboration with faith-based and community organizations and local reentry coalitions, have a proven record of helping inmates turn their lives around, and I applaud their continued good efforts to reduce recidivism. Encouraging people released from prison to become productive members of society not only strengthens communities, but also reduces the burden on taxpayers who shoulder the costs associated with incarceration.”
The brief, “States Report ReducAons in Recidivism,” highlights strategies that leaders in several states credit with helping drive down recidivism:
• In Ohio, state policymakers standardized the use of a validated risk assessment instrument to focus limited treatment and supervision resources on those individuals assessed at the highest risk for reoffending.
• In Kansas, state leaders awarded performance-based grants to community corrections agencies, partnered with local communities where recidivism rates were highest to improve post-release supervision, and enhanced housing and workforce development services to beaer meet the needs of people coming out of prison.
• Michigan officials invested heavily in the state’s Prisoner Reentry Program, prioritizing funding for housing, employment, and other transition support services in order to provide the most effective community-based programming for released individuals.
New poll suggests death penalty repeal has a chance on California ballotThis new San Francisco Chronicle piece, headlined "Death penalty repeal close in poll," reports that the latest polling shows a close contest for the California ballot initiative calling for repeal of the state's death penalty. Here are the details:
California voters are closely divided on a November ballot measure to repeal the state's death penalty law, with significant differences in support among regions and age groups, a new Field Poll reports.
The survey found that Proposition 34, which would make life in prison without parole the maximum punishment for murder, was opposed by 45 percent of likely voters and favored by 42 percent, with 13 percent undecided. The results amounted to a statistical tie, since the poll's margin of error was 4.3 percentage points.
The poll, released Tuesday, was conducted Sept. 6-18 among a random sample of 468 voters....
Prop. 34 will be California's first vote on capital punishment since 1978, when a 71 percent majority approved expansion of a death penalty law that had been passed the previous year over Gov. Jerry Brown's veto.
Backers of the Nov. 6 measure are focusing on the economic impact of the death penalty, citing studies that found the state spends as much as $184 million a year more than it would if the maximum sentence were life without parole. Prop. 34 would transfer $100 million over four years to law enforcement programs to solve murder and rape cases.
The new poll found that Prop. 34 was supported by Democrats, 50-37 percent, and even more strongly by unaffiliated and third-party voters, 54-33 percent, but opposed 23-65 percent by Republicans.
Residents of coastal counties favored the measure 45-41 percent, within the poll's margin of error, but inland residents opposed it 34-55 percent. The Bay Area provided the strongest regional support, 57-35 percent.
Men were evenly split, while women narrowly opposed the measure. Younger voters were about equally divided, but those ages 50 to 64 opposed Prop. 34 by 39 to 51 percent, and voters over 65 opposed it 38 to 46 percent.
Recent related posts:
- If money can really buy elections, the death penalty will be dead in California
- If major newspaper editorials matter, the death penalty will be dead in California
- New poll numbers (and polling techniques) surrounding California DP repeal initiative
Not much for sentencing fans (or Rubashkin supporters) in latest SCOTUS cert grants
As reported here by SCOTUSblog, the "Supreme Court, preparing to open a new Term next Monday, on Tuesday granted review of six new cases." Disappointingly, though the Court did take up a Fourth Amendment blood testing issue concerning drunk drivers in Missouri v. McNeely, none of the other cases I noted in this recent post are on the grant list. There is also an notable IFP grant in Millbrook v. US concerning the federal government's immunity in lawsuit by a federal prisonder subject to sexual assault by three guards.
A long list of cases in which cert was denied will not be released until next Monday. In all likelihood, the Rubashkin case will be on that list. If so, any and everyone aggrieved by the prosecution and sentencing in Rubashkin will need to turn their attention and energies toward a 2255 petition (or, I suppose, a clemency application).
Related posts on the Rubashkin case:
- "More Former AGs Question Sentence Sought in Bank Fraud Case"
- Can and should religious considerations influence bail decisions?
- Federal prosecutors now seeking 25-year prison term for Rubashkin
- Kosher plant chief Sholom Rubashkin sentenced to 27 years imprisonment
- An appellate amicus brief in the Rubashkin case on sentencing issues
- Rubashkin appeal raising more questions about high-profile federal fraud case
- Eighth Circuit panel unanimously affirms Rubashkin federal convictions and lengthy prison sentence
- "High court should hear Rubashkin to consider overzealous DOJ and judge who was essentially on prosecution team"
- Making a full-throated pitch for SCOTUS to again address reasonableness review
- What are the odds SCOTUS grants cert in the (in)famous Rubashkin case?
- Can a documentary impact odds of a cert grant in the (in)famous Rubashkin case?
"What Happens When the Amish Go to Prison?"The title of this post is the headline of this recent Slate piece, which is especially timely in the wake of last week's high-profile convictions of a large group of Amish beard-cutters on federal hate-crime charges. Here is how the piece starts:
Sixteen members of a breakaway Amish sect were convicted of hate crimes in Ohio on Thursday. The jury found them guilty of violently shaving the hair and beards of disfavored members of the community, and they now face up to 20 years in prison. How do American prisons accommodate the old-fashioned religious practices of Amish people?
They don’t, for the most part. State and federal prison systems don’t have special regulations for the tiny number of Amish serving extended sentences, many of them for sex offenses. The Amish reject most modern technology and dress. In prison, however, their cells have electric lighting and climate control, they wear orange jumpsuits, and they are transported between the prison and the courthouse in vans, just like other inmates. Prison administrators generally require prisoners to keep their beards trimmed, but wardens sometimes allow exceptions for religious reasons.
U.S. prisons are required to accommodate religious beliefs under the Religious Land Use and Institutionalized Persons Act, but inmates’ religious freedoms are tempered by security and cost concerns. Striking this balance has proven challenging for judges. In the case of facial hair, for example, courts have struck down outright beard bans, but agreed with wardens that excessively long or unkempt facial hair prevents guards from quickly identifying inmates. Prisoners who require special meals have also met with mixed responses. An inmate can demand a halal meal, but it is often just the prison’s vegetarian meal, because the facility refuses to pay the added expense of halal butchering.
Amish inmates who are forced by the state to use electricity or wear brightly colored clothing aren’t violating their religious beliefs in quite the same way as, for example, an Orthodox Jew who is fed non-kosher food. Amish are allowed to use modern technology under certain circumstances: Amish farmers often rent lighted stalls at farmers’ markets, and members of liberal communities hire drivers to transport them to supermarkets for weekly shopping. The prohibition has more to do with excessive engagement with modern technology. Amish people are not supposed to wire their homes or own automobiles, because those behaviors might distract them from the values of community, humility, and simplicity, and violate what they view as one of the Bible’s most central commandments: “Be not conformed to this world.”
Recent related posts:
- Ohio Amish hair-cutting incidents now a federal hate crimes sentencing matter
- Stark extremes for forthcoming debate over federal sentencing of Amish beard-cutters
Following up with killer saved from death via clemency by Ohio Gov KasichMy local Columbus Dispatch has this interesting story following up on an Ohio condemned inmate a year after his death sentence was commuted to LWOP. The piece is headlined "No future, but it beats death for spared man," and here are excerpts:
Joseph Murphy knows he will die in prison. He just doesn’t know when. He’s OK with that. “I have accepted the fact I will be here the rest of my life,” he said. “Whatever happens in here, it’s better than it was at home."
Murphy was supposed to be executed by the state on Oct. 18, 2011, for the 1987 throat-slashing murder of 72-year-old Ruth Predmore during a robbery at her home in Marion. Over 24 years, courts at all levels had rejected his appeals. His attorneys, public defenders Pamela J. Prude-Smithers and Kathryn L. Sandford, knew Gov. John Kasich was their client’s last hope.
On Sept. 26 last year, Kasich intervened, commuting Murphy’s death sentence to life without the possibility of parole. Kasich said considering Murphy’s “brutally abusive upbringing and the relatively young age at which he committed this terrible crime, the death penalty is not appropriate in this case.”
Murphy, 47, who spent most of his life — beginning at age 6 — in juvenile lockups, mental-health wards and prison, now faces the prospect of living the rest of his days with no hope of freedom. The third of Stella and Jerry Murphy’s six children, he was raised in a West Virginia tarpaper shack with no plumbing or electricity. His mother often failed to feed him as a child, and his father beat him and his siblings with switches, belts and extension cords.
Murphy was stabbed in the head with a steak knife by his brother, raped by a man who supplied Murphy’s father with moonshine and set on fire to prevent a children’s services worker from seeing welts on his back from recent beatings.
Prison is the only real home Murphy knows. He calls himself “state-raised.” After spending two decades alone in a cell, Murphy now has a cellmate and is housed in a unit with dozens of other prisoners. “It was mind-rattling,” he said during an interview last week at the Toledo Correctional Institution, where he was transferred from Death Row at the Ohio State Penitentiary at Youngstown. “ It was kind of hard being around a bunch of people. ... It’s hard getting used to the noise.”
In nearly a year in Toledo, Murphy hasn’t had an infraction, said Darlene Mitchell, assistant to the warden. He has corresponded with Peg Predmore Kavanagh, the 68-year-old niece of Murphy’s victim. Kavanagh testified via video in support of clemency for Murphy at the Ohio Parole Board hearing last year....
His abusive father is dead, and Murphy hasn’t had a single visit, letter or call from his mother or four brothers. “At first, I was upset. I wrote to them and said I was off Death Row,” he said. “I sent her more letters and cards at Thanksgiving and Christmas, but she didn’t write back. I love my mother to death and I always will. But it seems like she’s upset that I wasn’t executed.”
September 24, 2012
Of sentencing interest among SCOTUSblog's "Petitions to Watch"
Today the Supreme Court justices return from summer vacations and get back to work with the (famous?) long Conference during which they select some magical cert petitions to add to their "let's decide this one" to-do list for the coming Term. SCOTUSblog has its always helpful “Petitions to watch” list in three installments here, here, and here, and here are some petitions being watched that ought to be of extra interest to sentencing fans as listed by the folks at SCOTUSblog:
Rubashkin v. United States: (1) Whether Federal Rule of Criminal Procedure 33 requires a criminal defendant with newly discovered evidence that goes not to guilt or innocence but to the fundamental fairness of his criminal trial –- here, that the trial judge should have been recused under 28 U.S.C. § 455(a) -– to show nonetheless that the new evidence would probably lead to his acquittal; and (2) whether a sentence is unreasonable when a district court fails to consider and explain on the record, as required by this Court’s precedents, its basis for rejecting a defendant’s nonfrivolous argument for a below-Guidelines sentence –- resulting in, here, a twenty-seven-year sentence for a first-time, nonviolent offender that is significantly greater than sentences for similarly situated individuals.
Carter v. Louisiana: Whether the Court should reexamine its “death qualification” framework articulated in Witherspoon v. Illinois and Wainwright v. Witt because the Court announced that framework decades ago without any consideration of, or foundation in, the Framers' intent in protecting a defendant’s right to an “impartial jury” in the Sixth Amendment.
Missouri v. McNeely: Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.
Strutton v. Meade: Whether an individual, civilly committed for being a “sex offender,” or for otherwise exhibiting a mental abnormality posing a danger to others, has a substantive due process right to treatment that may ameliorate the danger posed by his abnormality, particularly where -- as here -- the withheld treatment was designed with the intention of providing a path to at least a conditional release from custody.
Martel v. Tuite: Whether a federal court may grant habeas corpus relief to a state prisoner without determining that the state court’s “harmless beyond a reasonable doubt” ruling was objectively unreasonable.
Ever eager to encourage betting on the SCOTUS cert pool, I will put the over/under on cert grants from this list at 1.5. (Interestingly, prop bets on cert grants need to get in earlier this year: SCOTUS has announced it will now start releasing order lists at 9:30am instead of 10am as it had in the past.)
I feel pretty confident that SCOTUS will be adding at least a few criminal justice cases to its docket, and I feel even more confident that the folks at SCOTUSblog are real good at spotting "top prospects" for a cert grant. That said, I am not confident SCOTUS will be eager to take up more than one of the cases/issues listed above, and I have a suspicion there might be one or more IFP cases (which SCOTUSblog does not typically review) that get the Justices attention as their summer tans begin to fade.
New report from Vera Institute reviews recent changes to prison populations and expensesLate last week I received this e-mail informing me of a notable new publication that should interest all sentencing fans:
The full 36-page report is available for download here, and a summary fact sheet can be foud here.
The fiscal crisis of the past several years has put the nation’s reliance on prisons under intense scrutiny. To reduce costs and improve public safety, states have begun to enact policies based on the large body of research showing that many offenders can be effectively handled within the community using evidence-based practices.
A new report from Vera’s Center on Sentencing and Corrections, in partnership with the Pew Center on the States’ Public Safety Performance Project, examines whether, in light of recent state-level policy changes and ongoing budget deficits, the expected shifts in population and spending from prisons to community corrections between 2006 and 2010 have been realized. The findings of Realigning Justice Resources: A Review of Population and Spending Shifts in Prison and Community Corrections are based on survey responses from 36 state prison agencies and 35 community corrections agencies; follow-up interviews with 24 states; a review of recent sentencing and corrections legislation; and an analysis of population counts from the Bureau of Justice Statistics at the U.S. Department of Justice.
Although Vera’s study demonstrates that there is not always a discernible relationship between population and spending shifts from one part of the system to another, several states — such as, Michigan, Rhode Island, South Carolina, Wisconsin, and Virginia — have successfully implemented policies that curb both prison populations and spending. The authors suggest that economic, political, and structural factors both within and outside the control of policymakers may have stymied many states’ ambitions. More time and research may be needed to observe the true impact of policy changes on correctional populations and spending.
Notable contrasts between Irish and US sentencing responses to child porn possession offensesThe Irish Examiner has this notable new piece, headlined "Sentences contrast in Ireland and US," discussing the very different punishment schemes for child porn downloaders in two not-so-different nations. Here is how the piece gets started:
What is an acceptable sentence for the possession of child pornography? That’s downloading and viewing the images, not being physically present when the abuse was carried out and the images made.
Consider two cases which progressed through the courts on opposite sides of the Atlantic within a year of each other.
In May, a British national, Simeon Betts, appeared in court in Ireland charged with a stash of child pornography which included 50 videos. The material found on three laptops included the rapes of children as young as four, and gardaí said the level of abuse was of the "upmost scale". Adult males were filmed raping the children, and in one instance an animal also featured in the abuse. For the possession of such sickening material, Betts, aged 45, was sentenced at Limerick Circuit Court to four years in prison, with the final two years suspended.
Now consider the case of Daniel Enrique Guevara Vilca, a 26-year-old who appeared in a Florida court room in November. Vilca had been caught with a significant stash of images — he faced 454 counts. Some of the videos and pictures showed boys aged between six and 12 years engaged in sexual activity with adults and each other. For possessing the images, Vilca was sentenced to life in prison without the possibility of parole....
These two cases show the extremes in which different jurisdictions view the crime of child pornography — and how the leniency or severity are both subject to significant scrutiny among their populations.
In America, the US Sentencing Commission is reviewing the sentencing guidelines for the crime. A survey of the country’s federal judges even found that 70% thought the sentences were too high. Many possession offences in the US carry a minimum tariff of five years and the average sentence handed down is seven years.
Here, sentencing for child pornography crimes falls under the Child Trafficking and Pornography Act, 1998. That legislation states that, for producing or distributing child pornography, the maximum sentence is 14 years in prison. For possession, the maximum sentence is five years.
September 23, 2012
Recent commentary on this election season's criminal justice initiatives
It is now just weeks until the election, and thus the time for full-throated pitches on the important criminal justice initiatives coming before voters in various states. Here are some recent commentary and editorials:
From Debra Saunders in California: "Save the death penalty"
Two from the Denver Post in Colorado: "Amendment 64: Should pot be legal in Colorado? No; Colorado can't put our kids at risk" and "Amendment 64: Should pot be legal in Colorado? Yes; End senseless marijuana prohibition"
- From the Seattle Times in Washington: "Approve Initiative 502 — It’s time to legalize, regulate and tax marijuana"
Newt Gingrich urging Gov Jerry Brown to sign law to allow resentencings for juve LWOP in CaliforniaI am pleased and intrigued to see that Newt Gingrich, now that he is off the Presidential campaign trail, is back to his "Right on Crime" advocacy for a more sensible and softer sentencing system. In this op-ed written with Pat Nolan, he urges Governor Jerry Brown to sign California's Senate Bill 9 ("The Fair Sentencing for Youth Act"), which authorizes resentencing opportunities for juveniles sentenced to life imprisonment without parole. Here are excerpts from the potent op-ed:
We did some dumb things as teenagers that might have caused a lot of harm. You probably did, too. Fortunately, we didn’t hurt anyone too badly, but we cringe now at how clueless we were about the possible consequences of what we did.
Teenagers often don’t make very good decisions. Our laws take this into account in many ways: We don’t let young people drink until they are 21, and they can’t sign contracts, vote or serve on juries until they are 18.
But there is one area in which we ignore teens’ youth and impulsiveness: our criminal laws. Our laws often ignore the difference between adults and teens, and some youngsters are sentenced to life in prison without parole (LWOP). Despite urban legends to the contrary, this law has no exceptions: A teen sentenced to LWOP will die in prison as an old man or woman. No exceptions for good behavior, no exceptions period. No hope.
You might expect that these LWOP sentences are limited to the “worst of the worst,” but that is not the case. A young teen can be a bit player in a crime, e.g., act as a lookout while his buddies go in to steal beer from a convenience store.... About 45 percent of the inmates serving LWOP for a teenage crime were not the person who caused the death. Yet they will die in prison of old age, with no chance for release.
But should these youngsters die in prison for something they did when they were so young? Wouldn’t it be better to re-evaluate them after serving a long stretch in prison and consider whether they have matured and improved themselves?
We are conservative Republicans, and we believe that some people are so dangerous that we must separate them from our communities. That is what prisons are for. But sometimes we overuse our institutions. California’s teen LWOP is an overuse of incarceration. It denies the reality that young people often change for the better. And it denies hope to those sentenced under it.
Of course, not every young person going through the system turns his or her life around. But wouldn’t it be better to at least consider whether these inmates have matured and improved themselves after a long stretch in prison? SB 9, which is now on Gov. Jerry Brown’s desk, would allow the court to give this narrow group of inmates convicted of a crime while a teen a chance to apply for parole -- after serving 25 years in prison. That is no “easy stretch.”
And even then, they will not be automatically released. They must show the parole board that they have participated in programs that prepare them to support themselves and stay on the straight and narrow when they are released. They must convince the parole board that they are remorseful and have changed so they no longer pose a threat to the community. Only then might they be given a parole date.
Jesus told us to “Do unto others” as we would have them do unto us. Shouldn’t we give the kids and grandkids of others the same second chances that we would want for our own families?
An inherent principle of justice is that the punishment should never exceed the harm done by the crime. It is wrong to condemn these inmates to die in prison for being the teenage accomplice to the terrible acts of another. We urge Gov. Brown to sign SB 9, and thereby restore the chance for these inmates to transform their lives and become good citizens.
This new article from the Los Angeles Times, headlined "Political lines drawn on life sentences for teen killers," reports on some of the others coming out for and against this intriguing legislation:
In a letter to the governor, [Nancy] Pelosi contended that "civilized societies are increasingly prohibiting life-without-parole sentences for juveniles, recognizing that juveniles do not possess the same mental development as adults.”
Brown is hearing plenty from the other side as well. California Assembly Republican leader Connie Conway earlier this month sent the governor a letter seeking veto of the "unnecessary" bill. "California already has a carefully balanced statutory scheme that appropriately balances the need to hold the most serious juvenile murderers accountable for their crimes, while recognizing different levels of maturity and culpability based on the age of the offender, and retains judicial discretion," she wrote.
Indeed, some victim advocates contend that because judges already rejected the possibility of allowing eventual parole for the state's 309 inmates sentenced as minors, there is no reason to revisit the issue. They have political support from lobbyists for prison guards and prosecutors.
The battle lines are not universally inclusive. Mothers Against Murder, for instance, has refused to take an official stance on the bill even though its membership includes families of those killed by juveniles. "We tend not to take a stand due to our respect for different families' wishes," said Executive Director Margaret Petros.
Related recent posts:
- California legislature passes intriguiging and novel resentencing bill for juve lifers
- Newt Gingrich says "criminal justice system is broken, and conservatives must lead the way in fixing it"
- "Right on Crime: The Conservative Case for Reform" officially launches
September 23, 2012 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack