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October 16, 2012

Only 18 months after murder, South Dakota executes prison guard's killer

South Dakota completed an execution early this morning, which (thanks to the murderer) took place a very short time after the crime.  Here are the details from this Reuters report:

South Dakota on Monday executed an inmate convicted of beating a prison guard to death during a failed escape attempt, in the state's first execution in five years. Eric Robert, 50, was put to death by lethal injection at the state prison in Sioux Falls. He was pronounced dead at 10:24 p.m. (11:24 p.m. EDT), the corrections department said.

Robert's execution came 18 months after authorities say he and fellow inmate Rodney Berget beat guard Ronald Johnson to death with a lead pipe and attacked other officers in an escape attempt on Johnson's birthday in April 2011....

Robert pleaded guilty to first-degree murder in the killing of Johnson, waived a jury for sentencing, told the judge during sentencing that he would kill again if he did not receive the death penalty and opposed efforts to halt his execution. Corrections officials said his last words were: "In the name of justice and liberty and mercy I authorize and forgive Warden Douglas Weber to execute me for my crimes. It is done."

According to court records, Robert was five years into an 80-year sentence for kidnapping a young woman when he and Berget planned their escape from the prison in Sioux Falls. The men entered an area of the prison they were not allowed to be in and attacked Johnson with a lead pipe. Robert then put on the guard's pants, shoes, jacket and baseball cap and Berget hid on a cart, court documents show. Robert tried to push the cart with Berget inside through a prison exit, but was challenged by an officer, setting off a fight with several guards before they surrendered, they show....

Executions have been rare in South Dakota -- there have only been two since 1913. "In this case, Eric Robert admitted to his crime and requested that his punishment not be delayed," South Dakota Governor Dennis Daugaard said in a statement.

But the state might have a second execution in October.  South Dakota is scheduled to execute Donald Moeller for the 1990 rape and murder of 9-year-old Becky O'Connell the week of October 28 to November 3.  The prison warden schedules the specific date and time.

Before Robert's execution, 31 prisoners had been executed in the United States in 2012, according to the Death Penalty Information Center.

Though I am not an expert on such things, I suspect the relatively short period between crime and execution in this case might be a modern death penalty record.

October 16, 2012 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (24) | TrackBack

October 15, 2012

Without fanfare, Louisiana Supreme Court gives retroactive effect to Miller via brief order

According to at least one accounting I have seen, Louisiana has nearly 250 persons serving LWOP for offenses committed when they juveniles.  I believe this makes Louisiana fifth among all states in total juve LWOP prisonder (and the leading state if judged on a per-capita basis).  Thus, a little ruling on Friday from the state Supreme Court in Louisiana v. Simmons, No. 11-KP-1810 (La. Oct. 12, 2012) (available here), seems like quite a big deal.  Because the per curiam ruling is just one paragraph long, I will reprint the whole thing here:

Writ granted.  Relator is presently serving a sentence of life imprisonment at hard labor without possibility of parole for a second degree murder committed in 1995 when he was 17 years old.  The sentence was mandated by the penalty provision of the statute establishing the offense.  La.R.S. 14:30.1(B).  In 2011, relator filed a motion to correct an illegal sentence in which he contended that a sentence of life imprisonment without parole for a juvenile offender is no longer constitutionally permissible under developing legal standards, and in particular in light of Graham v. Florida, 560 U.S. __, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (Eight Amendment precludes sentencing juvenile offenders to life imprisonment without parole for non-homicide crimes).  The district court denied relief. While review of that judgment was pending, the United States Supreme Court determined that mandatory life imprisonment without parole for those offenders under the age of 18 years at the time they committed a homicide offense violates the Eighth Amendment prohibition of “cruel and unusual punishments.”  Miller v. Alabama, 567 U.S. ____, ____,132 S.Ct. 2455, 2466, 183 L.Ed.2d 407 (2012).  Unlike the case in Graham, the Miller court did not prohibit life imprisonment without parole for juveniles, but instead required that a sentencing court consider an offender’s youth and attendant characteristics as mitigating circumstances before deciding whether to impose the harshest possible penalty for juveniles who have committed a homicide offense. Therefore, we grant to remand to the district court for reconsideration after conducting a sentencing hearing in accord with the principles enunciated in Miller and stating the reasons for reconsideration and sentencing on the record.

Because of the date of the underlying conviction, this Simmons ruling seems like a big deal because it suggests that the Louisiana Supreme Court has, without pause, ordered giving retroactive effect to the Miller ruling.  A little research indicates that Louisiana has a statutory provision providing for motion to correct an illegal sentence at any time, so perhaps it is neither surprising nor that big a deal that the state Supreme Court has here been quick to order what might be called a Miller resentencing hearing.  Still, because there are so many Louisiana juve LWOPers, and because this order calls for "reconsideration after conducting a sentencing hearing in accord with the principles enunciated in Miller," this little ruling seems to me to be a big deal.

Some prior major posts on Miller and its potential impact:

October 15, 2012 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Will there be a "constitutional showdown" if a state legalizes pot? And would that be so bad?

The question in the title of this post are prompted by this new piece at the Huffington Post, which is headlined "States Legalizing Marijuana Will Violate Federal Law, Trigger Constitutional Showdown: DEA, Drug Czars." The piece starts this way:

On a Monday teleconference call, former Drug Enforcement Agency administrators and directors of the Office of National Drug Control Policy voiced a strong reminder to the U.S. Department of Justice that even if voters in Colorado, Oregon and Washington pass ballot measures to legalize marijuana use for adults and tax its sale, the legalization of marijuana still violates federal law and the passage of these measures could trigger a "Constitutional showdown."

The goal of the call was clearly to put more pressure on Attorney General Eric Holder to make a public statement in opposition to these measures. With less than 30 days before Election Day, the DOJ has yet to announce its enforcement intentions regarding the ballot measures that, if passed, could end marijuana prohibition in each state.

"Next month in Colorado, Oregon and Washington states, voters will vote on legalizing marijuana," Peter Bensinger, the moderater of the call and former administrator of DEA during Ford, Carter and Reagan administrations, began the call. "Federal law, the U.S. Constitution and Supreme Court decisions say that this cannot be done because federal law preempts state law."

Bensinger added: "And there is a bigger danger that touches every one of us -- legalizing marijuana threatens public health and safety. In states that have legalized medical marijuana, drug driving arrests, accidents, and drug overdose deaths have skyrocketed. Drug treatment admissions are up and the number of teens using this gateway drug is up dramatically."

Bensinger was joined by a host of speakers including Bill Bennet and John Walters, former directors of the While House Office of National Drug Control Policy; Chief Richard Beary of the International Association of Chiefs of Police (IACP); Dr. Robert L. DuPont, founding director of the National Institute on Drug Abuse (NIDA) and who was also representing the American Society of Addiction Medicine (ASAM) and several others.

The position being pushed here by past and current drug warriors seems to have a little bit of a "chicken little" sky-is-falling quality to it.  Nevertheless, the apparent urgency of these respected voices confirms my strong belief that this is a topic very worthy of discourse on the Presidential campaign trail.  I am cautiously (and perhaps foolishly) optimistic that the next Prez debate's town hall format has the best chance to bring these issues into national discourse.  But even if it does not, I hope some members of the media might follow-up on these matters in interviews with both of the presidential contenders.

Some recent and older related posts:

October 15, 2012 in Campaign 2012 and sentencing issues , Drug Offense Sentencing, Elections and sentencing issues in political debates, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (15) | TrackBack

"John Paul Stevens, Originalist"

The title of this post is the title of this intriguing paper now on SSRN by Professor (and former Stevens clerk) Diane Marie Amann. Here is the abstract:

Commentators, including the author of a recent book on the Supreme Court, often attempt to give each Justice a methodological label, such as "practitioner of judicial restraint," "legal realist," "pragmatist," or "originalist." This Essay first demonstrates that none of the first three labels applies without fail to Justice John Paul Stevens; consequently, it explores the extent to which Justice Stevens's jurisprudence paid heed to the fourth method, "originalism."  It looks in particular at Justice Stevens's opinions in recent cases involving firearms, national security, and capital punishment.  Somewhat at odds with conventional wisdom, the Essay reveals Justice Stevens as a kind of originalist -- as a Justice duty-bound to identify and enforce principles, such as liberty and fairness, that the Framers embedded in the Constitution.  To do so, Justice Stevens has practiced a fifth methodology, one that synthesizes many sources and interpretive techniques in an effort to reach a decision that serves a contemporary understanding of justice.

I must note that this Essay mentions Baze in its discussion of Justice Stevens as an originalist, but makes no mention of Apprendi.  For that reason, I suspect that this piece is more provocative than comprehensive in making the case for a special kind of Stevens-filtered originalism.  Still, with the last section of the Essay headed "Justice Stevens, Justice Scalia, and the Substance of Liberty," I think this is still a must-read.

October 15, 2012 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (2) | TrackBack

With Texas schools now RFID tracking, is broad criminal justice use of this technology on the horizon?

Long-time readers may recall that more than half a decade ago I was asking in this post whether microchip inplants to track offenders might be an unavoidable inevitability.  To some extent, broad GPS tracking of sex offenders in many states has begun a move in this direction. 

I have long thought the increased use of this technology for non-criminals would be a key social development that could make more people more inclined to be more comfortable with this kind of Big Brother approach to criminal justice.  Consequently, this recent media story coming from Texas about a new use of RFID tracking caught my attention.  The story is headlined "RFID chips let schools track students -- and retain funding -- but some parents object," and here are excerpts:

Two San Antonio schools have turned to radio frequency identification (RFID) technology to help administrators count and track the whereabouts of students on campus.

Students at Anson Jones Middle School and John Jay High School are required to wear ID cards imbedded with electronic chips, similar to highway toll tags, which allow schools to more accurately record daily attendance.  Public school funding is often tied to the number of students attending class each day....

Pascual Gonzalez, Northside’s communications director, estimates the entire district has been losing about $1.7 million a year because of underreported attendance. He says the RFID system, which costs $261,000, should pay for itself in the first year....  Principal Wendy Reyes says the system has the added benefit of allowing her to find a particular student instantly. “Sometimes it’s difficult to locate a student in a sea of 1,200 others, so this helps locate them in an emergency,” she said. The ID tags can only be read on campus, so students cannot be tracked outside the building.

Some parents and students fear the radio ID tags are just too much Big Brother.  Steve Hernandez, whose daughter is a sophomore, objects to the tags on Biblical grounds. He compared the badges to the “mark of the beast” as described in the Book of Revelations.... The American Civil Liberties Union calls the RFID tags “dehumanizing.”

“What kind of lesson does it teach our children if they’re chipped like cattle and their every movement tracked?” asks Jay Stanley, senior policy analyst with the ACLU’s Washington, D.C. office. “It doesn’t create the kind of independent, autonomous people that we want in our democratic society.”

Gonzalez, Northside’s spokesman, says school administrators have no intention of spying on students.  “There’s a misconception that somebody’s sitting in a room with a bank full of monitors looking at where 1,200 kids are here at Anson Middle School. That’s not true,” he said.  “It’s not even feasible.  We’re not staffed nor are we interested in knowing where all the kids are at a particular moment.”

What the RFID system does do, according to Gonzales, is provide an accurate, daily census of students, which helps the district make money.  Based on early results, the district may consider expanding the RFID system to its other 109 schools, encompassing nearly 100,000 students.

I find the quotes from various folks in this story especially notable given the potential application of this technology in criminal justice setting: I suspect many policy-makers would be glad, not troubled, to adopt a technology which might be viewed as "dehumanizing" for certain types of offenders, and I am certain there is some policy interest (and some public benefits) from having the every movement of high-risk offenders tracked.  And though some are quick to object to any further monitoring of sex offenders, I wonder if there would be the same concerns about using RFID to track potentially violent men who are subject to a restraining order due to a history of domestic violence.

Some older related posts on tracking technologies:

October 15, 2012 in Criminal Sentences Alternatives, Technocorrections | Permalink | Comments (4) | TrackBack

October 14, 2012

"The Skeptic's Guide to Information Sharing at Sentencing"

The title of this post is the title of this notable new article by ProfessorRyan Scott, which is now available via SSRN. Here is the abstract:

The “information sharing model,” a leading method of structuring judicial discretion at the sentencing stage of criminal cases, has attracted broad support from scholars and judges.  Under this approach, sentencing judges should have access to a robust body of information, including written opinions and statistics, about previous sentences in similar cases.  According to proponents, judges armed with that information can conform their sentences to those of their colleagues or identify principled reasons for distinguishing them, reducing inter-judge disparity and promoting rationality in sentencing law.

This Article takes a skeptical view of the information sharing model, arguing that it suffers from three fundamental weaknesses as an alternative to other structured sentencing reforms. First, there are information collection challenges.  To succeed, the model requires sentencing information that is written, comprehensive, and representative.  Due to acute time constraints, however, courts cannot routinely generate that kind of information.  Second, there are information dissemination challenges.  Sharing sentencing information raises concerns about the privacy of offenders and victims.  Also, the volume and complexity of sentencing decisions create practical difficulties in making relevant information accessible to sentencing judges.  Third, the model’s voluntariness is an important drawback.  The information sharing model rests on the heroic assumption that judges will respond to information about previous sentences by dutifully following the decisions of their colleagues.  That is unrealistic.  Judges just as easily can disregard the information, ignore it, or even move in the opposite direction.

Despite those grounds for skepticism, information sharing can play a valuable role as a supplement to other sentencing reforms.  In particular, information sharing would benefit from a system of sentencing guidelines, whether mandatory or advisory, and from open access to the information on the part of defense counsel and prosecutors.

October 14, 2012 in Data on sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Never mind the buttocks, here's the sentencing pistols

220px-Never_Mind_the_BollocksThe title of this post represents my lame-ass attempt to devise a post title that is as humorous and as dirty as this federal criminal justice story sent to me by a kind reader.  The headline of the story is "Feds Bust Man Who Returned Used Enemas; Floridian indicted for tampering with CVS product," and here is the disturbing tale of the tail:

A Florida man has been indicted on a federal product tampering charge for allegedly returning used enemas to the shelves of the CVS pharmacy where he purchased the items.  Ronald Eugene Robinson is accused in an indictment unsealed ... in U.S. District Court in Jacksonville....

According to prosecutors, Robinson bought several “pre-packaged CVS Pharmacy Ready-to-Use enemas” between April and June of this year.  After using the enemas, he placed them back into their boxes, resealed the containers, and returned the products for refunds.

The used enemas, reshelved by CVS workers, were subsequently sold to unsuspecting customers. The federal indictment charges that Robinson acted with “reckless disregard” and placed others “in danger of death or bodily injury.”...

The tampering probe was launched in June when a CVS employee told Jacksonville Sheriff’s Office deputies that a male customer -- who had bought and returned enemas on several occasions -- had tampered with a box.  The pharmacy worker, Dustin McDonald, said that the customer claimed that he purchased the enemas for his mother, but “she no longer needed them,” according to a Jacksonville Sheriff’s Office report.

When the suspicious McDonald decided to “check the box of enemas to be sure that they were not tampered with,” he “observed that all the enemas were used.”  The worker also noticed that, “the unknown white male…re-glued the bottom of the box so that it appeared that it had not been opened.”

McDonald then opened three other six-pack enema boxes on the store’s shelves and found that “all the enemas in each of the 3 boxes were previously used,” deputies noted.  An analysis of the used products revealed that, “fecal matter was located on some of the returned enema bottles.”

If convicted of the felony rap, Robinson faces a maximum of ten years in prison and a $250,000 fine.  Robinson, who is currently on state probation, has a lengthy rap sheet that includes arrests for burglary, battery, passing bad checks, damage to property, and criminal mischief.

The reader who sent me the link to this story asked, "What will the Guidelines be for such a crappy offense?". In turn, I could not help butt wonder if the accused might be getting a bum rap. Some other posterior jokes in the comments to the linked story include: "He got what was coming to him in the end" and "Good detective work by the CVS employee, flushed him out" and "Public Enema #2."

Of course, everyone is encouraged to come up with additional crappy jokes about the crime and potential sentencing in this case.

October 14, 2012 in Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (6) | TrackBack

"Notice-and-Comment Sentencing"

The title of this post is the title of this intriguing-looking new article by Professors Richard Bierschbach and Stephanos Bibas, which is now available via SSRN.  Here is the abstract:

As the real policymakers of criminal justice, prosecutors and other criminal-justice professionals resolve many of the complex debates about justice in sentencing by deciding what charges to file, what plea bargains to strike, and what sentences to recommend.  But they make those value-laden decisions out of sight, with little public input into or oversight of the tradeoffs involved.  This gap between prosecutors as agents and the public as their principal leaves prosecutors free to pursue their own self-interests, risking arbitrary outcomes, endangering the legitimacy of criminal justice, and undercutting public confidence and respect.  Administrative law has long grappled with similar issues, seeking to constrain and legitimate agency decisions made in the public interest by soliciting and responding to public input.  But criminal justice has no comparable mechanisms for public participation.

We propose a system of “notice-and-comment sentencing,” modeled loosely on notice-and-comment rulemaking, to review the range of decisions that cash out at sentencing. That approach would provide the public with advance notice, solicit a broad range of views, require responses to significant criticisms, and elicit statements of reasons to ground appellate oversight.  Notice and comment would operate at the wholesale level on prosecutors’ charging and plea-bargaining policies, as well as sentencing commissions’ guidelines and possibly police enforcement policies.  It might also operate at the retail level within categories of especially significant crimes, soliciting factual information and possibly policy views about individual cases and creating feedback loops on the application of wholesale policies in concrete contexts.  Notice-and-comment sentencing would not only better constrain agents and blend expert and lay perspectives, but also enhance legitimacy and increase public confidence in seeing justice done.

October 14, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

One of thousands of post-Miller personal (and sentencing) stories

The front page of today's New York Times includes this notable account of one set of stories surrounding one Pennsylvania juvenile murder case dealing with the potential impact of the Supreme Court's Miller ruling. The piece is headlined "Juvenile Killers and Life Terms: a Case in Point," and here is how it gets started:

To this day, Maurice Bailey goes to sleep trying to understand what happened on Nov. 6, 1993, when as a 15-year-old high school student he killed his 15-year-old girlfriend, Kristina Grill, a classmate who was pregnant with his child.

“I go over it pretty much every night,” said Mr. Bailey, now 34, sitting in his brown jumpsuit here at the Fayette State Correctional Institution in western Pennsylvania, where he is serving a sentence of life without parole for first-degree murder.  “I don’t want to make excuses. It’s a horrible act I committed. But as you get older, your conscience and insight develop. I’m not the same person.”

Every night, Bobbi Jamriska tries to avoid going over that same event.  Ms. Jamriska, Kristina’s sister, was a 22-year-old out for a drink with friends when she got the news. Ten months later, their inconsolable mother died of complications from pneumonia.  Weeks later, their grandmother died.  “During that year, I buried four generations of my family,” Ms. Jamriska said at the dining room table of her Pittsburgh house, taking note of her sister’s unborn child.  “This wrecked my whole life. It completely changed the person I was.”

When the Supreme Court in June banned life sentences without parole for those under age 18 convicted of murder, it offered rare hope to more than 2,000 juvenile offenders like Mr. Bailey.  But it threw Ms. Jamriska and thousands like her into anguished turmoil at the prospect that the killers of their loved ones might walk the streets again.

The ruling did not specify whether it applied retroactively to those in prison or to future juvenile felons.  As state legislatures and courts struggle for answers, the clash of the two perspectives represented by Mr. Bailey and Ms. Jamriska is shaping the debate. Resentencing hearings have begun in a few places, but very slowly.

The governor of Iowa commuted the mandatory life sentences of his state’s juvenile offenders but said they had to stay in jail for 60 years before seeking parole, which critics said amounted to life in prison.  Some Iowa resentencing is starting in courts despite that proclamation.

In Florida, a few hearings are in early stages even though an intermediate court ruled that juveniles serving mandatory life terms did not have the right to be resentenced.  In North Carolina, life without parole has been changed from a requirement to an option, with a 25-year minimum sentence for those seeking parole.

Here in Pennsylvania, which has the most juvenile offenders serving life terms — about 480 — the State Supreme Court is examining retroactivity while the legislature works on a bill that would put felons like Mr. Bailey behind bars for a minimum of 35 years.

The United States Supreme Court decision said that sentences of life without parole for juveniles failed to take account of the role of the offender in the crime (killer or accomplice), the family background (stable or abusive) and the incomplete brain development of the young.  Recent research has found that youths are prone to miscalculate risks and consequences, and that their moral compasses are not fully developed.  They can change as they get older.

UPDATE: I just came across this separate article from the Detroit Free Press providing a Michigan perspective on these post-Miller issues.   The piece is headlined "Supreme Court ruling may give those sentenced to life as juveniles a chance at freedom," and it highlights that "[w]ith 358 juvenile lifers, Michigan ranks second in the country behind Pennsylvania, which has 475 juvenile lifers ... [and] accounts for nearly 14% of the more than 2,600 prisoners serving life sentences without parole for crimes committed when they were juveniles."

October 14, 2012 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack