December 15, 2012
Just Sentencing # 3: A restated and expanded limiting retributive model
In my last guest-blog post I discussed existing sentencing theories and the need for a new (or restated) hybrid model. In this post I’ll summarize the punishment purposes, limitations, and other core principles embodied in my book’s sentencing reform model. (The next two posts will examine procedural issues.)
As I explained last time, traditional punishment purposes often yield conflicting results when applied to particular cases. For example, the goals of efficiency and public safety are well served when medium- and low-risk offenders are given reduced penalties. Such reductions conserve scarce correctional resources (as well as court resources, if more of these offenders plead guilty), take advantage of community-based supports and treatment options, and reduce the risk of worsening these offenders’ life chances and thus making them more crime-prone. Reduced custodial penalties also leave more room for community service and other restorative justice measures. But when high–risk offenders who have committed the same crimes receive more severe punishments, the resulting disparities violate traditional retributive uniformity and proportionality principles; a low-risk offender’s reduced penalty also risks depreciating the seriousness of his offense, thus undercutting expressive punishment goals.
The solutions to conflicts like these that have been proposed by retributive theorists are inadequate. To accommodate variations in offender risk and other non-retributive considerations, strict retributivists propose to merely vary the form of punishment, not its severity. But loading up lower-risk offenders with onerous probation conditions is expensive and virtually guarantees high failure rates; such failures must then be sanctioned, resulting in more expense, and potentially imposing undeserved severity (since, by hypothesis, the onerous probation conditions have already given the offender his just deserts, and many probation violations are not blameworthy enough to justify much if any added punishment).
Limiting retributivism avoids these problems by positing a range of retributively-permissible penalties, within which risk management and other non-retributive goals may be pursued. This is a better solution, and it has recently been adopted as the theory underlying the revised Model Penal Code sentencing provisions. Norval Morris is the best-known proponent of this theory but, as I show in my book, many other writers, as well as most modern sentencing systems, have adopted some version of it.
The hybrid set of sentencing principles proposed in my book represents a restated and expanded version of Morris’s limiting retributive theory. My model is designed to clarify critical ambiguities in Morris’s theory, incorporate additional important principles that he did not address, and make the restated version of his theory more consistent with the normative premises adopted or implicit in the best existing sentencing systems (thus encouraging the preservation and expansion of those systems). The remainder of this post summarizes the core principles of my proposed model.
Definite but Asymmetric Desert Limits. Some writers, including Norval Morris, have argued that assessments of deserved punishment are inherently imprecise, even in relative terms (this offender versus that one). Other writers assume that judgments of relative degrees of desert can be made, at least for typical cases of each crime, but argue that desert limits should be viewed as asymmetric, setting definite upper limits on sanction severity and more flexible lower limits — offenders may not be punished more than they deserve, but they can and often should be given less than their full deserts in order to conserve resources and better achieve other sentencing goals. My book agrees with the latter view. And as will be explained in a later post, when state guidelines systems have adopted a desert-based sentencing system the structure and especially the operation of these systems has been more consistent with a definite-asymmetric conception of desert limits. On the issue of definiteness, I argue that we must try to state upper desert limits as precisely as possible because imprecise limits provide scant protection against pressure to escalate penalties. Definite typical-case desert assessments also provide a better starting point for judges, and convey more effective expressive messages: “this is how seriously we view crimes of this kind.” As for asymmetry, I argue that upper and lower desert limits raise different moral issues. Punishment in excess of an offender’s desert is fundamentally unfair and an abuse of government power. Below-desert penalties (in my view, but also supported by widespread practice) raise less compelling issues — of arguable unfairness to victims, law-abiding persons, other offenders, and this offender (the “right to be punished” argument).
Recognition of Expressive Goals, Symbolic Censure, and Conditional Hard Treatment. Current limiting retributive theory gives insufficient weight to norm-reinforcement and other expressive punishment goals. And most writers who have endorsed such goals claim that they require actual “hard treatment.” But other writers recognize that suspended prison or jail sentences and other forms of conditional hard treatment can convey useful expressive messages about relative crime seriousness. Such measures also provide an efficient tool for risk management, and they are widely used in most modern systems.
Recognition of the Ends-Benefits Proportionality Principle along with Parsimony. A very important component of Morris’s theory is the utilitarian and humanitarian principle of parsimony — measures should be no more severe than necessary to achieve their purposes. But utilitarian philosophy also recognizes another important limiting principle, which I have termed ends-benefits proportionality — the direct and collateral public and private costs and burdens of a penal measures (or of a more severe measure) should not exceed its likely crime control and other practical benefits (or added benefits).
Social Equality as a Further Limiting Principle. One significant collateral cost of punishment is its tendency to reinforce and perpetuate disadvantage, especially for nonwhite offenders, their families, and communities. These impacts are unfair, and they cause more crime. A sentencing system cannot eliminate entrenched racial disparities in our society, but it also should not worsen them. (I discuss the problem of disproportionate racial impact in chapter 5 of my book, and in the 7th post in this series.)
Within-Desert Adjustments Based on Offender Risk and Needs but Not on Deterrence. Norval Morris was highly skeptical of offender-specific risk assessments, but endorsed case-level enhancements based on needs for greater deterrence. My model takes the opposite approach, viewing such deterrence enhancements as unreliable but encouraging the use, within desert limits, of validated risk assessments.
Retention of Substantial Sentencing Discretion and Control by Judges. The case-level application of sentencing laws should not be tightly controlled by the legislature, sentencing commission, prosecutors, or correctional authorities by means of mandatory-sentence laws, inflexible guidelines, or parole release discretion. Sentencing by judges is, and will be seen as, more impartial, more transparent, and more readily subject to the rule of law and appellate review.
Front-End, System-Wide Management of Correctional Resources. Correctional resources must be carefully managed so as to set appropriate priorities, avoid overcrowding, and maintain program effectiveness. These fundamental punishment-policy and resource-use decisions should be made on a comprehensive basis by the legislature or sentencing commission, and should not be left to correctional authorities on a case-by-case basis for the subset of offenders received by each corrections agency.
That's all for now. In my next post (#4) I'll discuss the widely varying sentencing structures that currently exist in American state and federal jurisdictions, and the need for a new procedural model inspired by the best state sentencing guidelines systems.
Split Ohio Parole Board recommends capital clemency based on attorneys failingsAs reported in this local AP article, which is headlined "Divided parole board backs clemency in killing: Past lawyers’ errors cited; Kasich will decide on execution," the Ohio Adult Parole Authority issues a notable clemency recommendation to Ohio's Governor for the next condemned killer scheduled to executed next month. Here are the basics:
Gov. John Kasich must decide in about a month whether to spare a condemned inmate who weighs 450 pounds, and whether the inmate’s health should be part of his decision. The state parole board recommended mercy for Ronald Post yesterday based on claims raising doubts about his legal representation, not because he says he’s so fat he can’t be humanely executed.
The board rejected arguments made by Post’s attorneys that he deserves mercy because of lingering doubts about his “legal and moral guilt” in a woman’s death, but it said it couldn’t ignore perceived missteps by his lawyers.
The board’s recommendation, by a vote of 5-3, goes to Kasich, who has the final say. Post is scheduled to die on Jan. 16 for killing Elyria motel clerk Helen Vantz in a 1983 robbery.
“Post took Vantz’s life, devastating the lives of her loved ones in the process,” the board said. But it also said a majority of its members agreed that his sentence should be commuted to life in prison without chance of parole because of omissions, missed opportunities and questionable decisions made by his previous attorneys and because that legal representation didn’t meet expectations for a death-penalty case.
Post never raised his weight issue with the board but instead is arguing in federal court on Monday that he would suffer “a torturous and lingering death” as executioners tried to find a vein or use a backup method where lethal drugs are injected directly into muscle.
Kasich can consider anything he wants, regardless of court rulings or whether a claim — in this case Post’s weight — was made as part of the clemency petition, said Dan Kobil, a Capital University law professor and expert on clemency....
Post’s current attorneys said the parole board’s recommendation pleased them. “In the nearly 30 years since his case began, Ronald Post has too often been failed by the attorneys assigned to represent him, beginning at his trial,” public defenders Joe Wilhelm and Rachel Troutman said in a statement.
Vantz’s sons, William and Michael, have said they believe Post is guilty. William Vantz characterized Post’s obesity claim as “another way for a coward to try and get out of what debt he owes to society.”... The dissenting parole-board members said it’s clear that Post killed Vantz and that questionable moves by his attorneys don’t outweigh the circumstances of the case.
Doubt about Post’s guilt lingers because of the involvement of two other men in the shooting, Post’s attorneys argue. Post pleaded no contest to the crime on the advice of his attorney in expectation of a life sentence, they said. Even after his plea, he told a psychologist “he was not a murderer,” the lawyers said.
The full clemency report released yesterday by the Ohio Adult Parole Authority is available at this link. The split nature of the board's ruling provides a ready justification for any type of decision coming from Gov. Kasich, who has already commuted three death sentences to LWOP during his two years as governor to date (while also having presided over eight executions). Governor Kasich's track record suggests he takes capital clemency decision-making very seriously, and he will have a lot of factors to chew on in this particular case.
With a focus only politics and practicalities, I probably would be inclined to urge the Governor to commute Post's sentence to LWOP sometime before the end of this month just to make this ugly capital case go away. The issues concerning Post's weight and the execution process ensure that this case will get (too) much attention and be subject to much litigation in the weeks leading up to the mid-January execution date. And, with a lingering set of innocence claims and now a recommendation of clemency based on lousy lawyering, it would be easy and reasonable to justify a commutation because of the questions surrounding the fairness and accuracy of the process which led Post to be sentenced to death. And a communitation here would likely garner more praise from Gov. Kasich's usual critics than criticisms from his usual allies.
That all said, if one's vision of retributive capital justice necessarily ecliples these kinds of practical and political concerning, then a denial of capital clemency here become an easier decision. Because I rarely have strong retributive instinct here (or elsewhere), I tend to see these issues in more pragmatic and procedural terms. But I certainly can understand and respect how Gov. Kasich and others might have a much different perspective.
December 15, 2012 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack
"Peeking Behind the Plea Bargaining Process"The title of this post is the title of this new paper by Laurie Levenson now available via SSRN. Here is the abstract:
The Supreme Court’s rulings in Missouri v. Frye and Lafler v. Cooper, which recognized a defendant’s Sixth Amendment right to effective assistance of counsel in plea bargaining, creates new responsibilities for judges, defense counsel and prosecutors. This article explores what those responsibilities are in light of the history and role of plea bargaining in the United States.
December 14, 2012
Intriguing new comments from President Obama on federal pot prohibition policyAs reported in this notable new Washington Post piece, the President of the United States had some notable new things to say about marijuana reform policy in a notable new interview slated to be broadcast this evening. Here are the details:
In an interview with ABC News, President Obama told Barbara Walters that recreational pot smoking in states that have legalized the drug is not a major concern for his administration. “We’ve got bigger fish to fry,” Obama said of marijuana smokers in Colorado and Washington, the two states where recreational use is now legal.
“It would not make sense for us to see a top priority as going after recreational users in states that have determined that it’s legal,” he said.
Under Obama, the Drug Enforcement Administration has aggressively gone after medical marijuana dispensaries in California, where they are legal. In September, federal officials raided several Los Angeles shops and sent warnings to many more.
“This is a tough problem, because Congress has not yet changed the law,” Obama told Walters of the legalization in Colorado and Washington. “I head up the executive branch; we’re supposed to be carrying out laws. And so what we’re going to need to have is a conversation about, how do you reconcile a federal law that still says marijuana is a federal offense and state laws that say that it’s legal?”
Attorney General Eric Holder said in a speech Wednesday that he would announce a policy on the new state laws “relatively soon.” The president, who smoked pot often in high school, told Walters that he does not support general legalization “at this point.”
“There are a bunch of things I did that I regret when I was a kid,” Obama told Walters. “My attitude is, substance abuse generally is not good for our kids, not good for our society.”
The phrases I have highlighted above suggest to me that Prez Obama is most eager to (and in my view, most wise to) take a "wait and see" approach to federal marijuana policy reforms. This approach, I suspect, is likely to pay particular attention to any and all evidence about whether and how state marijuana legalization impacts substance abuse realities.
Supporters of pot prohibition reform would be wise now to try to document whether and how marijuana legalization in Colorado and Washington has an impact on substance abuse dynamics. Any evidence that legalization of marijuana actually makes it easier to restrict drug access to kids or to get heavy drug users into treatment could go a long way toward making it easer for the Obama Adminstration to embrace federal reforms. In addition, and in line with recent data trends in this area (as reported in this post), supporters of pot prohibition reform would be wise to document any and all evidence that marijuana legalization leads folks to use/abuse less frequently other legal but risky drugs like tobacco and alcohol and pain killers.
In short, I read Obama's comments as early evidence that his administration is prepared to adopt an evolving public health approach to these matters rather than a rigid crime and punishment view. I hope I am right in this assessment, because that is how I think these complicated and contingent social and legal issues should be considered.
A few recent and older related posts:
- New report on feds' on-going debate over response to pot legalization
- "Marijuana backers court conservatives with appeals on states’ rights, ineffective pot laws"
- Female voters seen as key to success of pot reform initiatives
- "Marijuana: A Winning GOP Issue?" ... and a lost 2012 Romney opportunity
- Will there be a "constitutional showdown" if a state legalizes pot? And would that be so bad?
- Timely new Cato policy analysis on federal supremacy and pot prohibition reform
- "Will the Feds Crack Down on Pot or Look the Other Way?"
- How can and should we assess the "success" of medical marijuana and pot prohibition reform efforts?
"Federal prisoners use snitching for personal gain"The title of this post is the headline of this big new article appearing in USA Today concerning the general operation of 5K substantial assistance sentencing departures in the federal courts. The lengthy piece gets started with a notable tale of a "pay-to-snitch" scheme emerging from Atlanta's federal courts and local jails. Here is how the article begins:
In addition to additional cool graphics and charts and more information about how this "pay-to-snitch" schemes operated it Atlanta, USA Today also has produced this great dynamic interactive graphic, titled "Informants trade for shorter sentences." The graphic (which I sure wish could be replicated by the US Sentencing Commission for all federal sentencing data) allows one to see basic cooperation statistics in each and every federal district just by moving around the map.
The prisoners in Atlanta's hulking downtown jail had a problem. They wanted to snitch for federal agents, but they didn't know anything worth telling. Fellow prisoner Marcus Watkins, an armed robber, had the answer.
For a fee, Watkins and his associates on the outside sold them information about other criminals that they could turn around and offer up to federal agents in hopes of shaving years off their prison sentences. They were paying for information, but what they were really trying to buy was freedom. "I didn't feel as though any laws were being broken," Watkins wrote in a 2008 letter to prosecutors. "I really thought I was helping out law enforcement."
That pay-to-snitch enterprise — documented in thousands of pages of court records, interviews and a stack of Watkins' own letters — remains almost entirely unknown outside Atlanta's towering federal courthouse, where investigators are still trying to determine whether any criminal cases were compromised. It offers a rare glimpse inside a vast and almost always secret part of the federal criminal justice system in which prosecutors routinely use the promise of reduced prison time to reward prisoners who help federal agents build cases against other criminals.
Snitching has become so commonplace that in the past five years at least 48,895 federal convicts — one of every eight — had their prison sentences reduced in exchange for helping government investigators, a USA TODAY examination of hundreds of thousands of court cases found. The deals can chop a decade or more off of their sentences.
How often informants pay to acquire information from brokers such as Watkins is impossible to know, in part because judges routinely seal court records that could identify them. It almost certainly represents an extreme result of a system that puts strong pressure on defendants to cooperate. Still, Watkins' case is at least the fourth such scheme to be uncovered in Atlanta alone over the past 20 years.
Those schemes are generally illegal because the people who buy information usually lie to federal agents about where they got it. They also show how staggeringly valuable good information has become — prices ran into tens of thousands of dollars, or up to $250,000 in one case, court records show.
John Horn, the second in command of Atlanta's U.S. attorney's office, said the "investigation on some of these matters is continuing" but would not elaborate. Prosecutors have said they were troubled that informants were paying for some of the secrets they passed on to federal agents. Judges are outraged. But the inmates who operated the schemes have repeatedly alleged that agents knew all along what they were up to, and sometimes even gave them the information they sold. Prosecutors told a judge in October that an investigation found those accusations were false. Still, court records show, agents kept interviewing at least one of Watkins' customers even after the FBI learned of the scheme.
The risks are obvious. If the government rewards paid-for information, wealthy defendants could potentially buy early freedom. Because such a system further muddies the question of how informants — already widely viewed as untrustworthy — know what they claim to know, "individual cases can be undermined and the system itself is compromised," U.S. Justice Department lawyers said in a 2010 court filing.
Overruling trial court, split Mississippi Supreme Court reverses death sentence on Atkins claimAs reported in this local article, which is headlined "Death penalty thrown out for mentally disabled man," yesterday brought a notable capital ruling from the Mississippi Supreme Court. Here are the details:
The Mississippi Supreme Court has thrown out the death sentence of Howard Dean Goodin on grounds that he’s mentally disabled. Goodin, now 58, was sentenced to death in the November 1998 robbery and fatal shooting of Union store owner Willis Rigdon.
The court ruled Thursday that a “preponderance of the evidence” shows Goodin is mentally disabled. The justices returned the case to Newton County Circuit Court for resentencing.... “We find the trial court’s conclusion that Goodin is not mentally retarded to be clearly erroneous,” Presiding Justice George C. Carlson Jr. wrote in the court’s opinion.
Three justices weren’t convinced. Justice David Chandler, writing the dissenting opinion, said “Goodin’s crime, in which he calculated and executed a robbery of a store and restaurant, provides facts that belie his claim of mental retardation.”...
Court records say Goodin had been in and out of prison and detention centers since his teens and had been free for five months when he was arrested for the armed robbery and murder of the 64-year-old Rigdon.... Goodin’s lawyer, Teresa L. Norris, argued before the Supreme Court in October that testing over 40 years showed Goodin to be mentally disabled. Norris has said Goodin has taken five IQ tests and never had a high score.
Though I do not following state court litigation over Atkins claims too closely, I feel confident asserting that it is pretty unusual for a state appellate court to rule that a trial court erred when concluding that a defendant was not mentally retarded. The full opinion of the Mississippi Supreme Court in this matter is available at this link, and I cannot help but wonder if the prospect of a inevitable federal capital habeas action (and reversal even in the Fifth Circuit?) helped prod a majority of Mississippi Justices to rule here in the defendant's favor.
December 13, 2012
Does the last decade add support for "more guns, less crime" claims?The question in the title of this post is prompted by this new USA Today story, which is headlined "Federal gun checks surge as violent crime ebbs." Here is how the piece starts:
The number of federally required background checks of prospective gun purchasers has nearly doubled in the past decade — a time when violent crime has been in long decline in many places across the USA, according to FBI records.
The bureau's National Instant Check System (NICS) does not track actual firearms sales — multiple guns can be included in one purchase. But the steady rise in background checks — from 8.5 million in 2002 to 16.8 million in 2012 — tracks other indicators that signal escalating gun sales.
Advocates on both sides of the gun-rights debate disagree over what is driving the trend. Gun-rights groups attribute the steady increase to the growing popularity of hunting and other gun-recreation uses, the impact of state laws allowing citizens to carry concealed handguns and concerns that the Obama administration will push for laws restricting weapons purchases.
Gun-control advocates, led by the Brady Campaign to Prevent Gun Violence, say existing gun owners are responsible for most new purchases (about 20% of gun owners possess 65% of the nation's guns, according to a 2006 Harvard study). Brady Campaign President Dan Gross said concerns about new gun-control laws are part of a "marketing ploy" to keep firearms moving.
No gun-control legislation was passed in President Obama's first term and no major proposal was offered during the 2012 presidential election campaign. Still, there is an "expectation" that new gun-control proposals will surface in Obama's second term, said National Rifle Association Executive Vice President Wayne LaPierre. "People expect a siege on the Second Amendment (right to bear arms).''
Larry Keane, senior vice president of the National Shooting Sports Foundation, said gun-related recreation — from hunting to target shooting on the range — is growing, too. From 2006 through 2011, spending on hunting equipment grew by nearly 30%, according to a national survey published in August by the U.S. Fish and Wildlife Service.
Keane said the overall firearms industry has thrived despite the sputtering economy and the decline in violent crime. "Personal safety still is a big reason people purchase firearms," Keane said. "The economic downturn, I think, raised fears that crime would eventually go back up."
New Urban Institute reports examine increases in federal prison populationI received via e-mail today news of a new report by the Urban Institute’s Justice Policy Center concerning increases in the size of the federal prison system. Here is a snippet fromt the e-mail, which includes reactions from key federal legislators:
The Growth & Increasing Cost of the Federal Prison System: Drivers and Potential Solutions states that federal prisons currently house 218,000 inmates, which is almost ten times the number incarcerated in 1980. Drug offenders make up more than half of the prison population, and the length of drug offender sentences is a major driver of population growth and prison costs.
“Overcrowded prisons do more than just jeopardize the safety of prisoners and staff: they also restrict the ability to offer rehabilitative programs designed to reduce reoffending,” noted Nancy La Vigne, director of the Urban Institute’s Justice Policy Center and a lead author of the paper....
In the report, the authors note that state justice systems demonstrate useful examples of how to trim spending without detracting from public safety. Adjusting sentencing practices and prison release policies for drug offenders, for example, could alleviate some stress on the federal prison system.
"This report demonstrates the need to address the safety and cost issues caused by the growth of the federal prison population. Republicans and Democrats in Congress and in the administration need to come together to address this issue in a bipartisan effort," said Rep. Frank Wolf (R-VA), chairman of the House Appropriations Commerce, Justice, Science, and Related Agencies Subcommittee.
“The unsustainable growth in federal prison costs is crowding out other law enforcement priorities. I welcome this new, important report, which shows the need for common sense reforms that protect the public safety while minimizing corrections costs for taxpayers,” said Sen. Sheldon Whitehouse (D-RI), chairman of the Senate Judiciary Crime and Terrorism Subcommittee.
The full report discussed in this e-mail is available at this link and runs only eight pages. Some of its coverage appears to build off this related Urban Institute publication, which is titled "Examining Growth in the Federal Prison Population, 1998 to 2010," and is 34 pages long.
New ruling under NC Racial Justice Act takes three more defendants off death rowAs reported in this local article, which is headlined "N.C. judge finds racial bias in 3 death penalty cases," there has been another notable development in the saga of North Carolina's Racial Justice Act. Here are the details:
A Cumberland County judge has sentenced three death row inmates to life in prison without possibility for parole after finding that racial discrimination in jury selection played a key role in securing their death sentences.
Judge Gregory Weeks issued the ruling on Thursday for Tilmon Golphin, Christina Walters and Quintel Augustine after the three challenged their sentences under the 2009 Racial Justice Act.
Walters was convicted of killing two women in a gang initiation ritual. Golphin was convicted of murdering two law enforcement officers at a traffic stop. Augustine was convicted of killing a Fayetteville police officer.
The judge's ruling means that sentences for four death row inmates now have been changed to lifetime prison sentences with no possibility for parole. In April, Weeks converted the death sentence for Marcus Reymond Robinson, the first of more than 150 death row inmates seeking relief under the law.
In Robinson's case, Weeks issued a strongly worded order, saying hearings had shown evidence that the jury selection process in capital cases, both statewide and locally, had systematically excluded blacks.
Then this summer, the legislature made sweeping changes to the Racial Justice Act, hoping to limit the use of statistics to the judicial district in which the inmate's case was tried. The governor vetoed the overhauled act, but the legislature overrode her veto.
The legislature, in its overhaul of the Racial Justice Act, said the changes to the law did not apply to Robinson's case since it was ruled on before the changes. But death penalty critics and advocates of using statistics in bias claims have argued that it would be unfair for all the death row inmates who filed bias claims under the 2009 law to not have a chance to argue their cases under that law....
Ken Rose, a senior staff attorney at the Center for Death Penalty Litigation, said Thursday that he expected challenges of Weeks' decisions.... The three inmates whose death sentences were abandoned filed their challenges in 2010 before the legislative overhaul of the Racial Justice Act. Critics of the changes and advocates for them agree that Weeks' ruling could lead to lawsuits that take years to settle.
New report on the state of capital punishment in Texas at year endThis new piece in the Texas Tribune, headlined "Death Row Population at Its Lowest Since 1989," reports on a few of the highlights from a new report concerning the administration of capital punishment in Texas. Here is how the piece starts:
The population on Texas' death row is at its lowest in more than 20 years, and the number of new death sentences, though slightly up in 2012, continues a downward trend even in the nation's busiest death penalty state, according to a report released Wednesday by the Texas Coalition to Abolish the Death Penalty.
As they have nationally, death sentences in Texas have declined over the last decade. The state has seen a 75 percent drop in death sentences since 2002. And according to the coalition, the Texas death row population, at 289, is at its lowest point since 1989. According to the coalition's report, juries in the state issued nine new death sentences in 2012, a slight increase from the number issued in each of the two previous years.
But the distribution of new death sentences is uneven, the coalition reported. For the third time in five years, there were no new death sentences out of Harris County, which once sent more people to death row than any other Texas county. Meanwhile, the Dallas-Fort Worth area accounted for four of the new death sentences in 2012, and Dallas County alone contributed nearly 20 percent of death sentences in the last five years, according to the report. Dallas County also led the state in executions: Five of the 15 Texans executed in 2012 were from there.
The full 16-page new report by the Texas Coalition to Abolish the Death Penalty is available at this link. The report is titled "Texas Death Penalty Developments in 2012: The Year in Review."
December 12, 2012
Just Sentencing # 2: Existing sentencing theories are inadequateRichard Frase, guest-blogging on Just Sentencing: Principles and Procedures for a Workable System (Oxford 2012):
In my first guest-blog post I provided a summary of my book’s main features and arguments. Although most articles and books on sentencing are primarily either theoretical or practical, my book presents a fully-developed sentencing model that integrates theory and practice. In this post and the next one I’ll discuss issues of principle (procedural issues will be addressed in posts four and five). This post examines existing sentencing theories and the need for a new (or at least, restated) hybrid theory. The next post will show how the model in my book meets that need.
Punishments require clear and convincing normative justification — by definition, they impose unpleasant and usually harmful consequences on offenders and their families, and they also consume scarce public resources. But the most widely-accepted purposes of punishment often conflict in particular cases. To further complicate matters, there are other important normative questions embedded in the choice of sentencing procedures, in particular: what official(s) or agency(ies) should make case-specific sentencing decisions? And who should decide how to make the best use of limited available punishment resources?
The most widely-accepted purposes of punishment are crime control and retribution. Punishments have the potential to achieve crime control through several mechanisms: rehabilitation of offenders, to address the causes of their offending; incapacitation of higher-risk offenders, usually by means of secure custody; specific and general deterrence of this and other would-be offenders, by instilling fear of punishment; and moral education to define and reinforce societal norms that restrain criminal behavior even when (as is often true) the chances of detection and punishment are slight — the sentence sends a message to the offender and the public that the punished behavior was wrong, and the severity of the sentence shows how wrong it was.
The other major traditional punishment goal, retribution (or “just deserts”), views punishment as justified because of its inherent value as a good thing in itself, regardless of whether it yields effective crime control or any other desired consequences. Under the stronger versions of retributive theory offenders should be punished simply because they deserve it, the severity of their punishment should closely match their degree of blameworthiness (retributive proportionality), and equally blameworthy offenders should receive equally severe punishments (retributive uniformity). A competing retributive theory — “limiting” retributivism — merely sets outer limits on punishment imposed to achieve other goals (especially crime control), thus producing a range of retributively permissible severity for any given case. Finally, some desert-based theories justify punishment in terms of its expressive or communicative value; on this view, conveying deserved censure to offenders, and inviting an appropriate response from them, are viewed as good things for society to do whether or not any such response is obtained.
There are a number of other widely-recognized punishment theories, purposes, and limitations. Utilitarian philosophers have long argued that sentencing in proportion to crime seriousness deters offenders from committing a more serious crime, and helps to match punishment costs with crime-control benefits. Sentencing uniformity also has practical benefits: it permits more accurate forecasts of future prison populations and other correctional resource needs. And to the extent that the public subscribes to these values, making sentences more uniform and proportional improves the moral-education effects of penalties and maintains critically needed public respect and support for the criminal law and law enforcement. Other practical goals of punishment include promoting satisfaction, closure, and compensation for crime victims and communities (restorative justice); reassuring the public that something is being done about crime; and facilitating the offender’s successful reintegration into society following his or her release from incarceration. Finally, various administrative purposes and limitations must be taken into account in any theory of punishment, in particular: the need to encourage guilty pleas and other forms of offender cooperation; and the necessity to avoid prison and jail overcrowding and prioritize the use of these and other correctional resources.
Other sentencing goals are (like retribution) deemed to be good things in themselves. These include the avoidance of disparities based on race or other clearly illegitimate criteria; the requirement that punishment respect norms of humane treatment and human dignity; and procedural fairness. The lengthy list of punishment principles above virtually guarantees that, in many cases, the principles will yield conflicting results. For example, if two equally blameworthy offenders commit the same crime but one poses a much higher risk of reoffending, putting the low-risk offender on probation and sending the high-risk offender to prison saves scarce correctional resources while effectively promoting public safety. But doing so produces sentencing disparity from the perspectives of retributive proportionality and uniformity, risks depreciating the seriousness of the low-risk offender’s crime, and undercuts other practical values served by uniform and proportionate punishments. Restorative justice measures provide another example: they may produce sanctions that, from retributive, crime-control, and/or efficiency standpoints, are either too severe (e.g., because of vengeful victim or community views) or not severe enough.
How can these various conflicts be resolved? Some retributive theorists argue that different forms of punishment (prison for high risk offenders; probation with onerous conditions for lower risk offenders) can still have equal punitive “bite,” thus maintaining proportionality. But as I show in this book, such an approach poses many practical problems (greater cost; little reserved punishment power to handle violations of release conditions), and no jurisdiction has ever implemented such a system.
Limiting retributivists have generally resolved crime-control-versus-desert conflicts by positing a broad range of “not-undeserved” penalties based on the supposed inherent imprecision of desert judgments. But imprecise limits may result in no real limits at all. And states with desert-based sentencing guidelines have not had difficulty reaching consensus about relative degrees of typical-offense desert, and about the factors that make a case atypical. But these states, and indeed virtually all modern punishment systems, have in effect adopted an asymmetric model, giving greater emphasis to upper than to lower offense-proportionality limits.
In my next post (#3) I’ll discuss principled arguments in favor of an asymmetric model. I’ll also discuss my hybrid model’s other sentencing principles, purposes, and limitations.
Fourth Circuit affirms (stat-max) five year sentence for dog-fighting when guideline range at 0-6 monthsIn part because so very few sentences get reversed (or even seriously engaged) under modern reasonableness review, I rarely blog on rulings concerning the post-Booker standards of appellate review. But both the facts and the ruling today by a Fourth Circuit panel in US v. Hargrove, No. 11-4818 (4th Cir. Dec. 12, 2012)(available here), struck me as blog-worthy. Thes snippets highlights why:
The government describes Hargrove as being a "legend" in the dogfighting community. By Hargrove’s own admission, he has been involved in dogfighting activity for over four decades, and at one time he had approximately 250 fighting dogs on his property. Information in the record shows that offspring from one of Hargrove’s fighting dogs, Midnight Cowboy, sold for large sums of money across the country because of its aggressiveness and propensity for fighting. Hargrove advertised his dogs in various dogfighting-related publications, and he is famous in the dogfighting industry for his dogfighting, his breeding activities, his training regimen, and his ability to produce aggressive fighting dogs. His prior criminal history includes a 1983 Georgia felony dogfighting conviction, a 1993 North Carolina animal fighting misdemeanor conviction, and a 2001 North Carolina animal cruelty misdemeanor conviction.....
The district court announced that it was prepared to sentence Hargrove both under the guidelines and with an upward departure and upward variance. The court expressed its dissatisfaction with the "irrationality" of the dogfighting guideline provision, noting with respect to the guideline calculation of 0-6 months that Hargrove advocated: "I would say that other than the criminal dog fighters in America, every other person in America would be shocked beyond belief that you could do what [Hargrove] did and come out with a federal sentence of zero to six months. . . . No one could defend that. No judges. No legislators. No president." J.A. 135.
The court then heard from Hargrove’s counsel, who emphasized that Hargrove was a highly decorated military veteran who had been changed by his experience in Vietnam. Counsel also noted that in cases cited by the government involving similar activities, the defendants received imprison- ment sentences of between 12 and 24 months....
The court then announced that its guidelines calculations led to a sentencing range of 41-51 months, and it stated that it would sentence Hargrove to 51 months if imposing sentence under that range. However, the court further stated that an upward departure and an upward variance to 60 months were appropriate....
In short, the court made abundantly clear that even if Har- grove’s sentencing guideline range was 0-6 months, it believed a 60-month sentence was necessary to accomplish the objectives of sentencing. Given the record before us, we cannot conclude that the court’s exercise of its sentencing discretion in imposing a 60-month sentence is unreasonable.
Is the US Sentencing Commission soon to be dominated by district judges?The question in the title of this post is prompted in part by this new post at The BLT, which is headline "Senate Questions D.C. Federal Court Nominee on Sentencing Guidelines." Here are snippets from the post providing some background for my question:
At a confirmation hearing this morning before the Senate Judiciary Committee, U.S. District Court for the District of Columbia judicial nominee Ketanji Brown Jackson fielded questions about her views on how she would handle terrorist detainee cases and how she would use federal sentencing guidelines.
Jackson, vice chair of the U.S. Sentencing Commission since early 2010, was nominated by President Barack Obama in September to fill the seat vacated by now-retired U.S. District Judge Henry Kennedy Jr. If confirmed, she would fill the sole open judgeship on the court.
Jackson didn't encounter opposition during today's hearing. Even her introduction was bipartisan: she was introduced by Representative Eleanor Holmes Norton (D-D.C.), who recommended Jackson to the White House, and Representative Paul Ryan (R-Wisc.), who is related to Jackson and offered his "unequivocal" support. Before her appointment to the sentencing commission, Jackson was of counsel at Morrison & Foerster. She served as a federal public defender from 2005 to 2007 and as an assistant special counsel to the sentencing commission from 2003 to 2005.... Senator Chuck Grassley (R-Iowa) asked ... Jackson about sentencing practices in the D.C. court, saying he was under the impression that local judges were frequently issuing sentences the departed from federal guidelines. Jackson said the commission was finishing a nationwide analysis of sentencing data, but added that the commission was "concerned" about the trend of more judges issuing sentences outside of the guidelines in certain types of cases. She didn't speak specifically to the D.C. court.
Senator Richard Blumenthal (D-Conn.) asked Jackson about the commission's decision in 2011 to retroactively apply reduced sentencing guidelines for cases involving crack cocaine. She said that the commission is required to consider retroactivity whenever it comes out with reduced guidelines and found that it was appropriate for those cases.
Blumenthal then asked about how Jackson would decide whether to depart from sentencing guidelines. Jackson replied that she didn't find any one factor more persuasive than another — the nature of the offense or a defendants' history, for instance — and would individually evaluate each case.
If — and I sincerely hope when — Commissioner Jackson becomes US Distict Court Judge Jackson, the US Sentencing Commission will then have four federal district judges among its six current commissioners. Though I believe the Commission had four judges as Commissioners for a brief period in the early 1990s, I believe one was a Circuit judge and I am sure the USSC has never had two-thirds of its members serving as active sentencing judges.
I do not think it is a huge problem to have so many district judges on the Commission at once, especially because the current crop is a diverse lot both in terms of experience and perspective. Nevertheless, because it only takes four votes on the seven-member commission to make decisions, and because there are so many different stakeholders who should have a formal voice in USSC decision-making, I hope President Obama will consider seriously a non-judge nominee for the current open spot on the Commission and for future opennings.
IMPORTANT UPDATE: A helpful reader reminded me (1) that I had totally forgotten that Prez Obama nominated US District Judge Charles Breyer to the open slot on the USSC earlier this year, though he still awaits full Senate confirmation, and (2) that District Judge Howell and Vice Chair Will Carr are now serving now only in hold-over status and will no longer be on the Commission as of the start of the new Congress.
Assuming District Judge Breyer is confirmed to the USSC and Commissioner Jackson is confirmed as a judge in short order, then as of the start of 2013 the US Sentencing Commission will have four district judges among five active members. If neither is confirmed, then the USSC will have three district judges among four active members.
In accord with sentiments above, I hope not only that all the pending nominations get Senate confirmation, but also that Prez Obama will very early in 2013 name new nomination to fill the soon-to-be empty slots in the Commission with some more great folks who are not now federal district judges.
Big new New York Times series on social science of incarcerationI am very excited to see that the today's New York Times has a pair of big articles as part of a new series on incarceration policies and practices. The series appears to be called "Time and Punishment: Tossing the Key," and it is described this way: "John Tierney, the Findings columnist for Science Times, is exploring the social science of incarceration. Future articles in this series will look at the effects of current policies on families and communities, and new ideas for dealing with offenders." Kudos to the Times for giving these important legal and social issues the extended attention they merit.
Here are the headlines and links to today's two NY Times pieces that kick of this series: "For Lesser Crimes, Rethinking Life Behind Bars" and "Life Without Parole: Four Inmates’ Stories." Here is a key portion from the start of the first of these articles:
Three decades of stricter drug laws, reduced parole and rigid sentencing rules have lengthened prison terms and more than tripled the percentage of Americans behind bars. The United States has the highest reported rate of incarceration of any country: about one in 100 adults, a total of nearly 2.3 million people in prison or jail.
But today there is growing sentiment that these policies have gone too far, causing too many Americans like Ms. George to be locked up for too long at too great a price — economically and socially.
The criticism is resonating with some state and federal officials, who have started taking steps to stop the prison population’s growth. The social scientists are attracting attention partly because the drop in crime has made it a less potent political issue, and partly because of the states’ financial problems.
State spending on corrections, after adjusting for inflation, has more than tripled in the past three decades, making it the fastest-growing budgetary cost except Medicaid. Even though the prison population has leveled off in the past several years, the costs remain so high that states are being forced to reduce spending in other areas.
Three decades ago, California spent 10 percent of its budget on higher education and 3 percent on prisons. In recent years the prison share of the budget rose above 10 percent while the share for higher education fell below 8 percent. As university administrators in California increase tuition to cover their deficits, they complain that the state spends much more on each prisoner — nearly $50,000 per year — than on each student.
Many researchers agree that the rise in imprisonment produced some initial benefits, particularly in urban neighborhoods, where violence decreased significantly in the 1990s. But as sentences lengthened and the prison population kept growing, it included more and more nonviolent criminals like Ms. George.
Half a million people are now in prison or jail for drug offenses, about 10 times the number in 1980, and there have been especially sharp increases in incarceration rates for women and for people over 55, long past the peak age for violent crime. In all, about 1.3 million people, more than half of those behind bars, are in prison or jail for nonviolent offenses.
Researchers note that the policies have done little to stem the flow of illegal drugs. And they say goals like keeping street violence in check could be achieved without the expense of locking up so many criminals for so long.
While many scholars still favor tough treatment for violent offenders, they have begun suggesting alternatives for other criminals. James Q. Wilson, the conservative social scientist whose work in the 1970s helped inspire tougher policies on prison, several years ago recommended diverting more nonviolent drug offenders from prisons to treatment programs.
Two of his collaborators, George L. Kelling of the Manhattan Institute and John J. DiIulio Jr. of the University of Pennsylvania, have joined with prominent scholars and politicians, including Jeb Bush and Newt Gingrich, in a group called Right on Crime. It advocates more selective incarceration and warns that current policies “have the unintended consequence of hardening nonviolent, low-risk offenders” so that they become “a greater risk to the public than when they entered.”
These views are hardly universal, particularly among elected officials worried about a surge in crime if the prison population shrinks. Prosecutors have resisted attempts to change the system, contending that the strict sentences deter crime and induce suspects to cooperate because the penalties provide the police and prosecutors with so much leverage.
Some of the strongest evidence for the benefit of incarceration came from studies by a University of Chicago economist, Steven D. Levitt, who found that penal policies were a major factor in reducing crime during the 1990s. But as crime continued declining and the prison population kept growing, the returns diminished.
“We know that harsher punishments lead to less crime, but we also know that the millionth prisoner we lock up is a lot less dangerous to society than the first guy we lock up,” Dr. Levitt said. “In the mid-1990s I concluded that the social benefits approximately equaled the costs of incarceration. Today, my guess is that the costs outweigh the benefits at the margins. I think we should be shrinking the prison population by at least one-third.”
Some social scientists argue that the incarceration rate is now so high that the net effect is “crimogenic”: creating more crime over the long term by harming the social fabric in communities and permanently damaging the economic prospects of prisoners as well as their families. Nationally, about one in 40 children have a parent in prison. Among black children, one in 15 have a parent in prison.
Florida closed out capital punishment in 2012 with execution of mass murdererAs reported in this local article, headlined "Florida executes ex-cop for killing 9 in 1986," in the Sunshine State a "former Sweetwater police and Florida Highway Patrol officer convicted of nine murders was executed on Tuesday night." Here are some details:
Manuel Pardo, 56, was pronounced dead at 7:47 p.m., about 16 minutes after his execution by lethal injection began. The execution was originally scheduled for 6 p.m. but was delayed by last minute appeals to the Florida Supreme Court, which were denied.
Pardo was convicted of killing nine people during a 1986 crime spree in Miami. At the time, officials said Pardo's victims were killed over a span of three months and most were involved with drugs. Pardo said he was doing the world a favor with the murders. After his arrest, he called himself a soldier and asked for the death penalty, according to published reports....
In a statement handed out after the execution, Pardo apologized to his family for the "pain and grief I have caused all of you." He wrote that he wished to set the record straight. "I accept full responsibility for killing the 6 men," he wrote, "but I never harmed those 3 women or any female. I took the blame as I knew I was doomed and it made no difference to me, at the time, having 6 or 9 death sentences. I don't want this hanging over my head, especially these last few minutes of life, because my war was against men who were trafficing (sic) in narcotics, and no one else."...
Back outside of the prison, a man named Frank Judd, nephew of victim Fara Quintero, read a statement. He said the loss of his aunt may have happened long ago, but the pain from it always lingers. He also said the execution was only a mild recompense for the loss. "I don't feel it's enough justice for the atrocities this man committed," he said. "This man was not a soldier."... Before he left, Judd offered his condolences to the families of other victims. "We understand their suffering," he said. "And that today may serve as an end to a terrible darkness."
According to statistics kept here by the Death Penalty Information Center, this Florida execution was the 43rd death sentence carried out in the United States in 2012. No more executions are scheduled for 2012, and it also seems unlikely that many (or perhaps any) death sentences will be handed down over the next few weeks. Consequently, the machinery of death would appear done for another year.
There appears to be two serious January execution dates scheduled for before inauguration day on January 20, 2013. If those executions go forward, there will have been a total of 186 executions throughout the United States during President Barack Obama's first term, the most executions for any modern President's first term other than George W. Bush. Notably, the total number of executions nationwide went way up during President Bill Clinton's second term (from around 180 to well over 300), and went down during Bush's second term (from over 260 to under 200). It is hard to predict where executions numbers may trend over the next four year, though a move up in the number of executions seems likely if a few states with large death rows like California and Pennsylvania get back into the execution business anytime soon.
Noting the potency of voter initiatives in pot prohibition reformI have long been a big fan of direct democracy, not only because some forms of legal reform often seem only possible through the initiative process, but also because often officials seem to be more respectful of these reforms because they represent the direct voice of the people. This reality is reflected in a quote from a Republican member of Congress in this new piece from The Hill, which is headlined "New marijuana laws cause confusion." Here are excerpts:
Marijuana has been a centerpiece of the federal government’s “war on drugs,” aimed at cracking down on drug use in the United States. But the growing number of people who support the decriminalization of pot — which is still legally classified nationally in the same category as heroin — has some policymakers in Washington, D.C., rethinking their approach.
“The voters of Colorado have spoken,” said Rep. Mike Coffman (R-Colo.) in an interview with The Hill. “I’m certainly opposed to the direction that the state is going, but I respect the will of voters and the process.
“Either the Justice Department needs to recognize, in its enforcement, the state’s right to choose, or we need conforming legislation at a federal level.”...
The Drug Enforcement Agency (DEA) told The Hill that while it has not received any revised investigatory directives from the administration since the laws were enacted, the agency prioritizes large-scale cultivation and distribution networks over smaller personal use and distribution when it considers which cases to spend time and money on....
Former President Jimmy Carter said on Tuesday, during a CNN forum, that he supports legalizing marijuana. On the several occasions Obama, through social networks, has asked the public for its questions, participants have voted overwhelmingly in favor of marijuana legalization as the leading topic. But the administration has been quiet for the past month, holding several private discussions with the governors of Colorado and Washington while maintaining a public approach of wait-and-see....
Both Colorado Gov. John Hickenlooper (D) and Washington Gov. Christine Gregoire (D) have talked with either Attorney General Eric Holder or Deputy Attorney General James Cole within the past month, but have received no assurances of any progress, according to spokesmen for the governors.
A looming concern for the governors is that their states will spend a good deal of time and money in an effort to conform with the new laws — building a new tax and regulatory structure, incorporating the sale of marijuana into commerce laws and training law enforcement officers to test the THC levels of drivers — only to have the DOJ continue to prosecute criminal marijuana cases involving their voters. “We don’t want to get so far down the road and then have the process stopped,” said Cory Curtis, a spokesman for Gregoire. “If we’re stopped in the eleventh hour and we’ve already put in the money, which is several million dollars, we’d rather know on the front end. And for citizens, they should be able to know what the ground rules are,” Curtis said....
Anticipating their role in helping to iron out the differences between the state and federal law, a small group of members is supporting a legislative fix put forward by Rep. Diana DeGette (D-Colo.) that would allow a state’s marijuana laws not to be trumped by federal drug laws.
DeGette has been talking with Hickenlooper at length, as well as with Republicans, about a bill she introduced two weeks ago, which already has Coffman and Rep. Ron Paul (R-Texas) as co-sponsors. Rep. Dana Rohrabacher (R-Calif.), an avid supporter of decriminalizing marijuana, told The Hill that he would also be in favor of backing the bill.
But not all Republicans are convinced that legalizing marijuana is the correct approach. A spokesman for Rep. Scott Tipton said the Colorado Republican has “serious concerns” about the damaging effect the law could have on children, and is waiting for the DOJ and Hickenlooper to finish their discussions on the issue.
I am fairly certain that federal representatives would not be working quite so hard to accomodate these state reforms if they did not so obviously represent the will of the majority expressed in a big election. Indeed, I think it is a telling and significant contrast in politics and policy in how the feds are now responding to state pot reform passed by initiative as opposed to how the feds responded previously to state immigration reforms based by representative.
December 11, 2012
Just Sentencing #1: OverviewHello everybody. I’m Richard Frase and I’d like to thank Doug Berman for inviting me to blog about my new book, Just Sentencing: Principles and Procedures for a Workable System, published last week by Oxford University Press and available here.
Of course, I can’t fully convey the whole book in a few blog posts, especially a book with the broad scope describe below. All I can do is provide a summary of what I think are the book’s main features and arguments. Whether you agree or disagree with what I say in these summaries, I hope you’ll consider the fuller statements contained in the book.
My book presents a hybrid sentencing model that combines clearly-stated normative principles with procedures that have proven successful in practice in the most fully-developed state sentencing guidelines systems.
The model’s theoretical structure is an expanded version of limiting retributivism that sets desert-based limits on sentence severity, within which crime control and other non-retributive purposes and limitations of punishment are applied. The latter include: expressive sentencing goals; parsimony (least restrictive alternative); utilitarian proportionality; social (and especially, racial) equality; retention of substantial judicial sentencing discretion; and front-end, system-wide management of correctional resources. The model provides a role for all traditional and emerging purposes and limitations of punishment, and resolves the conflicts that often arise when those principles are applied to specific cases. I argue that a hybrid sentencing theory is normatively superior and practically necessary. Any purely retributive or purely crime-control model would fail to recognize widely-shared competing values, and would not succeed in practice. Indeed, all modern sentencing systems with which I am familiar are hybrids of one kind or another, combining retributive principles with crime-control goals.
A sentencing theory, no matter how well it resolves important normative concerns, is of little utility without an accompanying set of workable procedures designed to implement the chosen sentencing principles. Indeed, pure theory is incomplete even on normative grounds; concrete structures and decision rules help to illustrate and clarify theoretical concepts and the normative choices being made.
But sentencing procedures must likewise achieve an acceptable balance, especially between two competing procedural ideals — rule versus discretion — each of which has important advantages. Rules promote consistency and predictability; discretion promotes flexibility and efficiency. Procedures must also strike a workable balance in the use of custodial and non-custodial sentencing options, and in the powers of systemic policy makers (the legislature and sentencing commission) and case-level decision makers (judges, attorneys, and correctional officials).
Although sentencing guidelines are often seen as reflecting strong preferences for rules over discretion, and for system-wide over case-level policy-making, that is not how the best state guidelines systems actually work. Like the proposed model, these systems structure sentencing discretion but leave judges and other officials with a substantial degree of discretion to tailor the form and severity of sanctions to the facts of particular cases. My book shows how the core principles and procedures of the proposed model have been implemented in several states, and endorsed in model sentencing codes and standards.
The proposed model fills the need for a workable new sentencing rationale and structure to replace the once-monolithic indeterminate model which is now widely discredited because of its reliance on unfettered judicial and parole discretion. My book also forthrightly addresses and resolves some of the most difficult challenges faced by American sentencing policy, including: overuse of prison sentences; racial disparities in prison and jail inmate populations; and the justification for and degree of sentence enhancements for repeat offenders.
The principles and procedures of any viable new model will, of necessity, be more complex than the indeterminate model that dominated American sentencing for most of the 20th Century. The new model must harmonize and provide suitable roles for multiple, often-conflicting principles (indeterminate sentencing only needed to harmonize rehabilitation and public protection). And the new model’s procedures must strike a better balance between rule and discretion (indeterminate sentencing’s procedures were simple but very unbalanced — all discretion, no rules).
But the model described above is not actually that hard to design. As I show in this book, my “new” model already exists to a great extent in several state systems, some of which have been in operation for decades. My book gives particular emphasis to and draws its greatest inspiration from the guidelines systems in Minnesota, Washington, Oregon, Kansas, and North Carolina. By the mid-1990s it seemed likely that the sentencing reform model adopted in these states would continue to spread, but then sentencing reform lost momentum and direction. I argue that the virtues of this model remain, and that the perceived barriers to its broader adoption have disappeared or were always exaggerated.
Aside from the fragmented and often incoherent state of American sentencing, there are further reasons to return to the project of sentencing reform. The massive recent increases in the size and cost of American prison populations, and their persistently high rates of racial disproportionality, provide reasons enough to seriously reexamine the sentencing principles and procedures that drove or at least allowed such increases and disparities.
I argue that states that have adopted my model should recognize its virtues and seek to maintain and improve their systems. States that have not yet tried this model (or tried and then abandoned an incomplete version) should give this approach serious consideration. The benefits of the model can be quite substantial, given the high individual and societal costs imposed by contemporary U.S. sentencing systems, and the modest expense of even a well-funded guidelines reform. Beyond material costs and benefits, the proposed model can help states achieve what may be the most important product of a sentencing system — just punishments that are perceived as just by offenders, victims, and the public. The model can achieve just sentencing because it embodies clearly articulated and widely shared principles, combined with proven procedures well-suited to implementing those principles.
That's all for now. In my next post I'll discuss existing sentencing theories, and the need for a new (or restated) hybrid model.
Timely new Cato policy analysis on federal supremacy and pot prohibition reformI was pleased to learn via e-mail that the Cato Institute has just released a new policy analysis by Vanderbilt law prof Robert Mikos concerning the interplay between federal law and state law concerning marijuana policy reforms. The Cato paper, available via this link, is titled "On the Limits of Federal Supremacy: When States Relax (or Abandon) Marijuana Bans," and here is the executive summary:
The American Constitution divides governmental power between the federal government and several state governments. In the event of a conflict between federal law and state law, the Supremacy Clause of the Constitution (Article VI, Clause 2) makes it clear that state policies are subordinate to federal policies. There are, however, important limitations to the doctrine of federal supremacy.
First, there must be a valid constitutional basis for the federal policy in question. The powers of the federal government are limited and enumerated, and the president and Congress must always respect the boundary lines that the Constitution created.
Second, even in the areas where federal authorities may enact law, they may not use the states as instruments of federal governance. This anticommandeering limitation upon federal power is often overlooked, but the Supreme Court will enforce that principle in appropriate cases.
Using medical marijuana as a case study, I examine how the anti-commandeering principle protects the states’ prerogative to legalize activity that Congress bans. The federal government has banned marijuana outright, and for years federal officials have lobbied against local efforts to legalize medical use of the drug. However, an ever-growing number of states have adopted legalization measures. I explain why these state laws, and most related regulations, have not been — and cannot be — preempted by Congress. I also develop a new framework for analyzing the boundary between the proper exercise of federal supremacy and prohibited commandeering.
Although I focus on medical marijuana, the legal analysis applies to any issue pitting permissive state laws against restrictive federal regulations. Recent referenda in Colorado and Washington that legalize the recreational use of marijuana for adults will likely prompt federal officials to respond by touting the supremacy of the federal ban and challenging the constitutionality of state efforts at legalization. Such state reforms should carry the day in the event of such a legal challenge.
Split Seventh Circuit panel extended Second Amendment rights to outside homeI have not blogged much of late on Second Amendment jurisprudence, in part because it seems all lower courts have no qualms about saying the the purported "fundamental right" to "keep and bear arms" recognized by the Supreme Court in Heller and McDonald has no application whatsoever to non-violent felons or certain misdemeanants. Still, a big Second Amendment ruling today from a Seventh Circuit panel in Moore v. Madigan, No. 12-1269 (7th Cir. Dec. 11, 2012) (available here), struck me as blog-worthy. Here is the close of the majority opinion (per Judge Posner):
We are disinclined to engage in another round of historical analysis to determine whether eighteenth-century America understood the Second Amendment to include a right to bear guns outside the home. The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside. The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense. Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden. The Supreme Court’s interpretation of the Second Amendment therefore compels us to reverse the decisions in the two cases before us and remand them to their respective district courts for the entry of declarations of unconstitutionality and permanent injunctions. Nevertheless we order our mandate stayed for 180 days to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.
NTSB calls upon all states to require ignition locks for all drunk driversAs reported in this new AP article, today the National Transportation Safety Board has officially urged every state to "require all convicted drunken drivers, including first-time offenders, to use devices that prevent them from starting a car’s engine if their breath tests positive for alcohol." Here is more:
The ignition interlock devices — already required for all convicted drunken drivers in 17 states — are the best currently available solution to reducing drunken driving deaths, which account for about a third of the nation’s more than 32,000 traffic deaths a year, the board said.
Drivers breathe into breathalyzers mounted on the vehicle’s dashboard. If their breath-alcohol concentration is greater than the device’s programmed limit — usually a blood alcohol concentration of .02 percent or .04 percent — then the engine won’t start.
The board also urged the National Highway Traffic Safety Administration to speed up its research effort with automakers to develop systems that can determine a driver’s blood alcohol concentration using infrared light when the driver presses an ignition button. The vehicle won’t start if the alcohol concentration is too high.
The technology, which is sometimes breath-based rather than touch-activated, is already in use in some workplace drug-testing programs. If the technology were incorporated into all new vehicles, eventually all drivers would be alcohol-tested before driving. That could potentially prevent an estimated 7,000 drunken-driving deaths a year, the board said.
The five-member board made the unanimous recommendations after receiving a new study from its staff that found an average of 360 people a year are killed when drivers turn the wrong way into the face of oncoming traffic on high-speed highways. The board’s study analyzed data from 1,566 crashes from 2004 to 2009, as well as nine wrong way collisions NTSB directly investigated. In 59 percent of the accidents, wrong-way drivers had blood alcohol levels more than twice the legal limit, researchers said. In another 10 percent of the crashes, drivers had alcohol levels between .08 and .14. The limit in most instances is .08....
Reducing drunken driving is perhaps the most obvious way to reduce wrong-way driving fatalities and injuries. The board hosted a forum earlier this year on the problem of drivers impaired by alcohol and drugs. Alcohol-impaired crashes overall accounted for nearly 31 percent motor vehicle fatalities 2010. And, that percentage has remained stuck between 30 and 32 percent of overall highway fatalities since 1995, board members said.
Safety advocates have been lobbying states to pass more laws requiring ignition interlock devices for first-time offenders. According to the Governors Highway Safety Association, states that already have such laws on the books are: Alaska, Arizona, Arkansas, Colorado, Connecticut, Hawaii, Illinois, Kansas, Louisiana, Missouri, Nebraska, New Mexico, New York, Oregon, Utah, Virginia and Washington. Missouri’s law does take effect until next fall. Also, four California counties — including Los Angeles — have ignition interlock laws.
Lots and lots of prior posts on sentencing drunk drivers and advocacy for ignition locks:
- Getting tougher on drunk driving
- Why do we worry so much more about sex offenders than drunk drivers?
- Technology versus toughness to combat drunk driving
- Undue leniency for drunk drivers?
- More discussion of leniency for drunk drivers
- More examples of undue leniency shown to repeat drunk drivers
- "Some Coloradans drive until they kill"
- New York about to require ignition locks as mandated punishment for drunk driving
- Sentences of a few weeks for drunk driving makes Michigan judge uniquely tough
- Effective commentary complaining about undue leniency for drunk drivers
- Alcohol industry resistant to federal support for more DUI prevention technology
- Notable report on Oregon's use of technology to combat drunk driving
- Ignition lock law in Kansas seeming responsible for huge drop in DUI fatalities