February 18, 2012
Lots of fascinating new stuff via The Crime Report
Regular readers may be tired of hearing me promote The Crime Report as a must-daily read, but this set of fascinating recent headlines and commentaries from that source make it essential for me to promote it once again:
Highlights from DOJ testimony to US Sentencing Commission about federal sentencing concerns
I cannot even hope to summarize all the interesting stories emerging from the US Sentencing Commission hearing on Thursday concerning the operation and potential reform of the modern post-Booker federal sentencing system. But, in addition to once again urging all federal sentencing fans to review all the written testimony from the hearing (linked via the official agenda here), I can also highlight some notable passages from this written testimony from the Justice Department. Though the entire testimony ought to be reviewed closely, these passages especially caught my attention:
We are now on a funding trajectory that will result in more federal money spent on imprisonment and less on police, investigators, prosecutors, reentry, and crime prevention. At the same time, state and local enforcement and corrections budgets are under severe strain. Taken together, and given the scale of current federal imprisonment penalties, we do not think this trajectory is a good one for continued improvements in public safety.
Prisons are essential for public safety. But maximizing public safety can be achieved without maximizing prison spending. And in these budget times, maximizing public safety can only be achieved if we control prison spending. A proper balance of outlays must be found that allows, on the one hand, for sufficient numbers of investigative agents, prosecutors and judicial personnel to investigate, apprehend, prosecute and adjudicate those who commit federal crimes, and on the other hand, a sentencing policy that achieves public safety correctional goals and justice for victims, the community, and the offender.
This is all relevant to federal sentencing, because the federal prison population remains on an upward path. Given the budgetary environment, this path will lead to further imbalances in the deployment of justice resources....
One way to reduce prison expenditures is to reduce the total number of prisonyears that inmates serve in the Federal Bureau of Prisons. To that end, the Department has proposed limited new prison credits for those offenders who behave well in prison and participate in evidence-based programs with proven records of reducing recidivism. We believe this is one example of a responsible way to control prison spending while also reducing reoffending....
We believe mandatory minimums in certain areas are not only reasonable, but are an essential law enforcement tool to increase public safety and provide predictability, certainty and uniformity in sentencing. At the same time, we recognize that when the severity of mandatory minimum penalties is set inappropriately, consistent application is often lost and just punishment may not be achieved. The Commission’s report reached the same conclusion.
There are also interesting passages about post-Booker disparities and the role of offender circumstances at sentencing in this DOJ testimony. And all of the themes in this testimony seem certain to play a role if (and when?) talk of significant sentencing reform (and even a big "Booker fix") moves forward in the US Sentencing Commission and/or in Congress.
Some recent related posts:
- Fascinating DOJ testimony to US Sentencing Commission about child porn sentencing
- "Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences"
- New paper say there "is no need for a 'Booker fix'; Booker is the fix"
- In DC for event on "The Relevancy and Reach of the U.S. Sentencing Commission"
- NPR covers latest debates over post-Booker federal sentencing systems
- Two big public hearings on tap for US Sentencing Commission next week
February 16, 2012
Many hats for this road warrior...
over the next few days. I have my policy work hat on today as I head to the US Sentencing Commission to testify this afternoon. Then I will be wearing a real lawyer hat in DC briefly tonight before changing into an ivory tower outfit as I head down to Miami to participate in a two-day death penalty conference.
I expect blogging will be light through the weekend, though I hope to have some mid-travel reports to share.
UPDATE Friday mid-day: I am on-line with my laptop for the first time since Thursday AM, and I have so much to say about the remarkable USSC hearing that took all day on Thursday. I fear I won't have time to share post-hearing comments until the weekend, but I recommend all federal sentencing fans find the time to review the testimony from the hearing (linked via the official agenda here).
I am now in sunny and warm Miami being hosted at this amazing symposium on "The Future of the Death Penalty." Perhaps later tonight (or perhaps not), I will tear myself away for a little late-night blogging.
February 15, 2012
"Teen killers get inconsistent sentences"
The title of this post is the headline of this notable piece from Massachusetts, which gets started this way:
Shrewsbury teen Valerie N. Hall pushed her mother down a flight of stairs in 2000, smashed her head in with a hammer and left Kathleen Thompsen Hall to die while she went for a ride with her boyfriend. For her mother's murder, Hall, a depressed and suicidal 16-year-old at the time, served nine years in prison.
Lincoln-Sudbury Regional High School student John Odgren, who suffers from depression and other mental ailments, fatally stabbed schoolmate James Alenson in the boy's bathroom in 2007 when he was 16, and after realizing what he had done, tried to get help. Odgren is serving life without the possibility of parole at Bridgewater State Hospital.
Both crimes were ghastly. Both teens suffered from mental illness. Both were charged with first-degree murder. But their punishments could not have been more different.
The dispositions of the Hall and Odgren cases illustrate the profound inequities that have grown up in the Massachusetts juvenile justice system since the passage of a tough sentencing law enacted 15 years ago and designed to punish the most depraved “super-predators” among teen killers.
An investigation by the New England Center for Investigative Reporting reveals, for the first time, that that law is not being applied consistently to the most horrific juvenile murder cases, as it was intended. The findings come as the U.S. Supreme Court prepares this spring to tackle whether it is “cruel and unusual” punishment to sentence juveniles 14 and under to life without parole for murder.
In Massachusetts, there is no obvious pattern as to why some killers are sentenced to life without parole and others — who committed shocking, grisly crimes such as fatally beating a 2-year-old — escaped the harsh sentence. Juveniles whose crimes approach the cruelty of the teen whose case triggered the passage of the 1996 law, Edward O'Brien, have escaped the severe sentence, while spontaneous acts of violence by teenagers with little prior record are punished with life behind bars.
O'Brien was 15 in 1995 when he fatally stabbed his best friend's mother, slashing her more than 90 times. He was initially to be tried in juvenile court, but public outcry about the possibility of a lenient juvenile sentence led lawmakers to quickly pass the tough new law aimed at punishing “adult crime with adult time.” Under that law, a teen convicted of first-degree murder must serve life in prison without any chance of being released.
Before the change, juvenile killers could only be sentenced to serve until age 21 unless their case was transferred to adult court. Since 1996, dozens of teens between the ages of 14 and 16 have been charged with murder in Massachusetts, but only seven have been sentenced to life without parole. In only two cases — the fatal beating with a hammer and the stabbing of a stranger in a school restroom — did their crimes approach the depravity of O'Brien's murder of Janet Downing.
Four of the teenage lifers acted impulsively, settling petty disputes with lethal attacks, the review of murder cases shows. Only two of the seven lifers had a record of violent crime, the investigation found, and two had no criminal history at all. “We'd like to reserve the maximum penalty for the worst cases, for the most dangerous individuals,” said Northeastern University criminologist James Alan Fox, a critic of the current system. The seven teens that got life without parole “do not appear to be the worst cases.”
Fascinating DOJ testimony to US Sentencing Commission about child porn sentencing
As mentioned in this prior post, today was the first day for two big full-day public hearings before the US Sentencing Commission in DC. Today was "for the Commission to gather testimony from invited witnesses regarding the issue of penalties for child pornography offenses in federal sentencing."
I suspect a lot of interesting testimony was presented, and I hope any reader who were in attendance might consider posting a comment with any notable observations. Helpfully, the USSC has posted the submitted written testimony of the witnesses via links to the official agenda, and I just had a chance to review the joint submission by the witnesses from the Justice Department. There is much of interest in this testimony (and in all the other linked testimony), but I thought these passages were especially worth spotlighting in light of controversies over application of the current federal child porn guidelines:
We believe the sentencing guideline, U.S.S.G. § 2G2.2, poses some challenges to the successful handling and sentencing of child pornography cases. This guideline has existed in its current version more or less since 2003. Whether or not in 2003 it accurately calibrated the seriousness of the offenders, our experience today tells us two things: first, the guideline has not kept pace with technological advancements in both computer media and internet and software technologies; and second, there is a range of aggravating conduct that we see today that is not captured in the current guideline. As a result, prosecutors, probation officers, and judges are often assessing these cases using a guideline that does not account for the full range of the defendant’s conduct and also does not adequately differentiate among offenders given the severity of their conduct....
[T]he Commission should consider whether § 2G2.2’s existing specific offense characteristics should be revised and consolidated to bring them in line with today’s reality, and whether new specific offense characteristics should be added to better differentiate among offenders based on their offense severity and risk to children.
There are several characteristics that could be taken into account in a revised guideline. The Commission could add a provision that addresses the harm caused by distribution such as that by P2P technologies. The Commission could also consider adding specific offense characteristics for image severity that address images of bestiality as well as images of infants and toddlers. As for the enhancement for the quantity of images, the image table might be revised to reflect the plain reality that offenders today can amass collections, not of hundreds of images, but tens, or even hundreds, of thousands of images.
The Commission could consider adding new specific offense characteristics to better differentiate among offenders, such as by accounting for offenders who communicate with one another and in so doing, facilitate and encourage the sexual abuse of children and production of more child pornography, as well as for offenders who create and administer the forums where such communication is taking place. The Commission could also consider a specific offense characteristic that addresses the length of time the offender has committed the offense to distinguish those offenders who have gotten away with their crime for years from those who may have just begun committing these crimes. The Commission could also consider recognizing variations in the sophistication of the criminal conduct to appropriately address the more technologically sophisticated offenders who might use multiple internet technologies to collect child pornography, or who might use sophisticated measures to avoid being detected by law enforcement, or who are members of a group dedicated to child sexual exploitation. By considering these types of changes, the Commission could improve § 2G2.2’s ability to meaningfully differentiate among offenders based on the severity of their offense conduct and the risk they pose to children.
Extended account of Ohio justice's capital punishment change of heart
The AP has this notable new piece headlined "US justice rejects death penalty law he wrote," which provides background on an interesting aspect of Buckeye capital justice. Here are excerpts:
As a young state senator 30 years ago, Paul Pfeifer helped write Ohio's death penalty law. Today, as the senior member of the state Supreme Court, he's trying to eliminate it.
It's not uncommon for sitting judges to change their mind on the death penalty — U.S. Supreme Court Justice Harry Blackmun famously said in 1994 he would no longer "tinker with the machinery of death" — but Pfeifer may be the only one to argue so ardently against a capital punishment law he himself created, and yet continue to rule on death penalty cases.
"I have concluded that the death sentence makes no sense to me at this point when you can have life without the possibility of parole," Pfeifer said in his most recent public comments, testifying in December in favor a bill to abolish Ohio's law. "I don't see what society gains from that....
At least two county prosecutors say Pfeifer should stop ruling on death sentences, including Hamilton County prosecutor Joe Deters, who said that Pfeifer's actions were inappropriate. "It gives rise to a credible inference that he cannot be fair to both sides," Deters said recently.
Pfeifer's position is unusual but on solid legal ground as long as he keeps his opinions out of his rulings, said Marianna Bettman, a University of Cincinnati law professor and former state appeals court judge.
Ohio has 148 inmates on death row. Executions are temporarily on hold while federal courts review the state's lethal injection procedures, but that delay is not expected to last forever. The Democrat-sponsored bill to abolish the death penalty has little chance of passing....
In January 2011, Pfeifer made his strongest statements to date, calling on Kasich to empty death row. Pfeifer says he's required as a judge to take positions to make laws better, hence his current stand. He's also required to rule according to the law and the Constitution, which he says he does. Ohio Supreme Court Chief Justice Maureen O'Connor says she's comfortable Pfeifer is following the law and not showing bias.
Since 2001, Pfeifer has written the majority opinion upholding death sentences in five cases, dissented in two others, and upheld death sentences while disagreeing on aspects of the decision in four other cases. As recently as December, Pfeifer set an execution date, signing the order for a man who raped and killed his girlfriend's 3-year-old daughter.
Pfeifer's experience as a death penalty supporter turned opponent is not isolated. Gerald Kogan, a retired chief justice of the Florida Supreme Court who prosecuted death penalty cases early in his legal career, now says the death penalty should be abolished, with the possible exception of worst of the worst defendants such as Osama bin Laden or a mass serial killer.
Rudy Gerber helped write Arizona's death penalty law in the 1970s but now opposes capital punishment and represents death row defendants trying to escape the law he created. In California, Don Heller authored a 1978 ballot initiative that created the state's death penalty law. Thirty years later, with more than 700 inmates on death row, Heller has changed course and is advocating the law's demise, saying it's too prone to human error.
Controversy over new scarlet letter approach to properties searched for drugs in Big Easy
A helpful reader alerted me to an interesting new front in the drug war playing out New Orleans as reported in this local article headlined "NOPD to begin identifying properties investigated after drug tips." Here is how the story starts:
New Orleans Police Chief Ronal Serpas announced a new initiative to identify houses that have been investigated for narcotics activity based on citizen tips to Crimestoppers Inc. Officers will place a bright orange sticker on the property.
New Orleans Police Chief Ronal Serpas holds a sticker that he says officers will begin placing on properties that have been investigated in connection with Crimestoppers tips on drug activity. "We're going to start placarding every house that we do a search warrant on," said Serpas [Tuesday] morning during a press conference at the Old Metairie headquarters of Crimestoppers of Greater New Orleans.
Serpas made the announcement in conjunction with the crime-fighting organization's unveiling of a new smart phone application called Tip Submit that will allow iPhone and Android users to anonymously report tips using their portable telephones.
Unsurprisingly, not everyone thinks this new sticker policy is a great idea, as highlighted by this subsequent piece headlined "ACLU objects to NOPD plans to identify properties investigated after drug tips." Here are excerpts from that piece:
The new sticker-initiative was met with near instant criticism from the American Civil Liberties Union of Louisiana. "This is like a scarlet letter tattooed onto the homes of otherwise innocent people, giving them no presumption of innocence," said executive director Marjorie Esman. "People who have not even been arrested, let alone tried or convicted, will be singled out and have their homes marked."
The stickers can be removed at "any time by anyone," according to NOPD spokeswoman Remi Braden, and the glue used in the stickers is "said to cause no damage to property." Esman countered: "If anyone can take it off at any time, then what's the point? Why should taxpayers' money be spent on something that can just be peeled off right away."
February 14, 2012
"Private Prison Corporation Offers Cash In Exchange For State Prisons"
The title of this post is the headline of this notable and lengthy new piece recently posted on The Huffington Post. It gets started this way:
As state governments wrestle with massive budget shortfalls, a Wall Street giant is offering a solution: cash in exchange for state property. Prisons, to be exact.
Corrections Corporation of America, the nation's largest operator of for-profit prisons, has sent letters recently to 48 states offering to buy up their prisons as a remedy for "challenging corrections budgets." In exchange, the company is asking for a 20-year management contract, plus an assurance that the prison would remain at least 90 percent full, according to a copy of the letter obtained by The Huffington Post.
The move reflects a significant shift in strategy for the private prison industry, which until now has expanded by building prisons of its own or managing state-controlled prisons. It also represents an unprecedented bid for more control of state prison systems.
Corrections Corporation has been a swiftly growing business, with revenues expanding more than fivefold since the mid-1990s. The company capitalized on the expansion of state prison systems in the '80s and '90s at the height of the so-called 'war on drugs,' contracting with state governments to build or manage new prisons to house an influx of drug offenders. During the past 10 years, it has found new opportunity in the business of locking up undocumented immigrants, as the federal government has contracted with private companies in an aggressive immigrant-detention campaign.
And Corrections Corporation's offer of $250 million toward purchasing existing state prisons is yet another avenue for potential growth. The company has billed the "corrections investment initiative" as a convenient option for states in need of fresh revenue streams: The state benefits from a one-time infusion of cash, while the prison corporation wins a new long-term contract. In addition, supporters of prison privatization have argued that states can achieve cost savings through outsourcing, as prison corporations give fewer benefits to employees.
"We believe this comes at a timely and helpful juncture and hope you will share our belief in the benefits of the purchase-and-manage model," reads the letter from Harley Lappin, CCA's chief corrections officer, who was a former director of the Federal Bureau of Prisons.
Ohio sold off one of its largest prisons to Corrections Corporation last year as a way to plug holes in its budget, and government officials estimate that outsourcing the prison could save the state $3 million annually. Louisiana Gov. Bobby Jindal (R) proposed putting three state prisons on the block last year to generate one-time revenue, but he failed to persuade state lawmakers to endorse the plan.
By now we all should know the lessons of these kinds of stories: "Follow the money"
Some recent related posts:
- "Billions Behind Bars: Inside America's Prison Industry"
- ACLU of Ohio releases new report assailing Governor's plan to sell state prisons
- Might private prisons actually cost taxpayers more than public prisons?
- "Who Benefits When A Private Prison Comes To Town?"
- New ACLU report critical of private prisons
- "Too Good to be True: Private Prisons in America"
If a conservative is a liberal who has been mugged...
then defendants with cases before the US Supreme Court may now have extra reason to worry about Justice Stephen Breyer's vote. That is because of this news, headlined "Supreme Court justice, wife robbed in Caribbean." Here are the details:
U.S. Supreme Court Justice Stephen Breyer and his wife Joanna were robbed last week at their vacation home on the Caribbean island of Nevis by a man armed with a machete, a court spokeswoman said on Monday.
Spokeswoman Kathy Arberg said the robbery took place on the evening of Feb. 9, the intruder stole about $1,000, but no one had been hurt. Two unidentified guests also were present.
The robbery was reported to local authorities but Arberg said she did not know if there had been any arrests and added that she had no details about the investigation. She said the 73-year-old Breyer and his wife were no longer in Nevis....
A spokesman for the U.S. Marshals Service said the agency does not discuss the particulars of its judicial security operations, including those involving Supreme Court justices. "What I can confirm is that the Marshals Service is aware of the incident involving Justice Breyer on the Caribbean island of Nevis and is assisting the Supreme Court Police and local law enforcement authorities with the investigation as needed," spokesman Jeff Carter said.
Intriguingly, as the article goes on to note, it seems that the more defendant-friendly judges have been more likely to be the victim of these sorts of crimes:
[This] was not the first time that a crime has been committed against a member of the U.S. Supreme Court. In 2004, then-Supreme Court Justice David Souter suffered minor injuries when he was mugged by a group of young men as he jogged alone near his residence in Washington. In 1996, Justice Ruth Bader Ginsburg was the victim of a purse snatching as she walked home with her husband and daughter from the John F. Kennedy Center for the Performing Arts to their nearby residence in their Watergate apartment complex. No one was hurt.
Canadian judge resisting mandatory sentencing provisions
The Toronto Globe and Mail has this new article, headlined "In challenge to Ottawa, judge refuses to impose mandatory sentence" which provides a northern perspective on the classic concerns about federal judges forced to impose rigid mandatory sentencing terms. Here are excerpts from the piece:
An Ontario Superior Court judge has refused to impose a mandatory three-year sentence on a man caught with a loaded handgun, putting the courts on a collision course with the federal government’s belief in fixed sentences that provide judges with little discretion.
In a decision Monday, Madam Justice Anne Molloy added fuel to a rising sense of judicial anger over mandatory minimum sentences by striking down the compulsory term as cruel and unusual punishment. Instead, she sentenced the defendant, Leroy Smickle, to a year of house arrest. Judge Molloy concluded that Mr. Smickle, a 30-year-old Toronto man with no criminal record, had merely been showing off by striking a “cool” pose over the Internet when police happened to burst into an apartment on March 9, 2009, in search of another man.
The government has adamantly held to the view that mandatory minimums are a necessary restraint on judges who might impose inappropriately lenient sentences for certain offences. That is part of a larger tough-on-crime agenda that includes everything from harsher prison sentences to restricting parole and pardons.
Several months ago, in another major challenge in Ontario Superior Court, a similar sentencing provision was upheld in a firearms case, Regina v. Nur. That, combined with the Smickle ruling, could well result in a high-profile appeal that goes all the way to the Supreme Court of Canada.
Critics argue that a one-size-fits-all sentencing policy inevitably leads to unfair results. In her ruling Monday, Judge Molloy added her voice to those criticisms by saying there are an endless number of scenarios where a fixed sentence would be so cruel as to violate the Charter of Rights....
“In my opinion, a reasonable person knowing the circumstances of this case and the principles underlying both the Charter and the general sentencing provision of the Criminal Code, would consider a three-year sentence to be fundamentally unfair, outrageous, abhorrent and intolerable,” Judge Molloy said....
The judge noted that bad drafting was partially to blame for the legal straitjacket she found herself in. She took issue with a discrepancy in the firearms law, passed in 2008, which allows a judge to impose a more lenient sentence should the Crown choose to proceed summarily with a charge – an option that includes no jury and swifter resolution. She said that if the Crown instead proceeds by indictment, as it did in Mr. Smickle’s case, the minimum sentence automatically becomes three years.
The discrepancy created by the two sentence ranges is so “irrational and arbitrary” that it would shock the community were she to impose the mandatory sentence on Mr. Smickle, Judge Molloy said.
February 13, 2012
Fascinating NPR piece on how feds have ended local innovation on pot regulation
Driving home this evening, I heard this terrific segment on NPR concerning battles between local officials and federal authorities over pot policies in one California county. The piece is headlined "Mendocino Snuffing Medical Marijuana Experiment," and it merits a full listen. Here are some notable excerpts:
Mendocino County in Northern California is expected Tuesday to end an unusual program that put pot growing under supervision of the local sheriff. It was the first effort of its kind in the nation and proved a success, at least in the eyes of many locals. But federal officials had a different view.
For years, the county struggled to contain an explosion in pot growing — especially since the state legalized the use of medical marijuana. Two years ago, officials legalized medical marijuana production under strict conditions.
They gave the job to a barrel-chested sheriff's sergeant named Randy Johnson. The program earned the sheriff's department more than half a million dollars and enlisted nearly 100 growers....
But in October, federal prosecutors went on the offensive against California's marijuana industry, closing dozens of storefront dispensaries and seizing properties.
The U.S. Attorney for Northern California, Melinda Haag, says the system wasn't working. "The law has been hijacked by profiteers who are motivated not by compassion but by money," Haag says.
She also warned cities and counties that marijuana-licensing schemes were against federal law. Soon after, heavily armed Drug Enforcement Administration agents raided a farm in Mendocino owned by one of the county's legal growers.
Former federal prosecutor Joe Russoniello says allowing sick people to use medical marijuana is one thing, but it's quite another for a county like Mendocino to issue permits to marijuana growers and allow them to sell their product around the state. "As soon as you cross county lines, packaging it, suggesting you have a client base or patients or members, you are basically a commercial enterprise for profit and in violation of state and federal law," Russoniello says....
In the end, Mendocino officials concluded they couldn't afford a legal fight with the federal government, and agreed to gut the regulations. They're expected to formally end the program on Tuesday.
All of it left County Board Chairman John McCowen exasperated. "It means it's going to go back underground. It's going to become more dangerous. It's going to become more profitable for the black marketers," he says. "I just don't see that this represents progress."
As I recall, GOP Presidential candidate Mitt Romney stressed in a debate last month that there is "nothing wrong with profit" and that he was "someone who believes in free enterprise" and that he would "stand and defend capitalism across this country throughout this campaign." And yet, perhaps tellingly, I am not expecting anyone from the Romney campaign (or any other GOP candidates save Ron Paul) to assail the Obama Administration for spending federal prosecutorial time and federal taxpayer money to shut down this local industry in Mendocino County which had the temerity to be interested in making money as part of a local government program.
Some recent and older related posts:
- "Record-High 50% of Americans Favor Legalizing Marijuana Use"
- Notable new pot legalization poll numbers from two states
- GOP candidate Ron Paul assails Obama pot policy and garners applause calling federal drug war "a total failure"
- "Presidential candidate to Obama: end drug war & pardon jailed marijuana users"
- New Huff Post pieces on presidential pot policy and politics
- Two state govs request that feds reclassify pot to ease medical use
- "Marijuana questions dominate White House online chat -- again"
- "Pot legalization efforts forge ahead in key states"
"Department of Justice FY 2013 Budget Request"
The title of this post is the headline of this official Justice Department news release, which carries this lengthy subheading: "President’s Request Identifies Savings and Efficiencies, Sustains National Security Programs, Upholds Traditional Missions, Renews Focus on Financial and Mortgage Fraud, and Enforcement of Civil Rights While Maintaining State, Local and Tribal Support." Here are snippets from the release:
Attorney General Eric Holder announced today that President Obama’s FY 2013 Budget proposal totaling $27.1 billion for the Department of Justice identifies over $1 billion in efficiencies, savings and rescissions while providing resources to sustain critical national security programs, uphold the department’s traditional missions with an increased focus on financial and mortgage fraud and civil rights enforcement, invest in prisons and detention capacity, and assist our state, local and tribal law enforcement partners. The request represents a 0.4 percent decrease in budget authority from the FY 2012 enacted level....
The $27.1 billion budget request includes program increases for critical administration priorities, including $55 million to investigate and prosecute financial and mortgage crimes; $31.8 million to increase funding for traditional missions, including $5 million in new money to prevent human trafficking, hate crimes and police misconduct; and $141.2 million for prisons and detention to ensure prisoners and detainees are confined in secure facilities. The budget addresses the federal prison population by allowing eligible inmates to earn sentence reductions for good behavior and participation in certain reentry programs, freeing up federal prison space and reducing long-term costs. In addition, the budget provides $4 billion to sustain the department’s critical national security mission and nearly $2 billion in funding to maintain security along the Southwest Border. Finally, the budget continues to foster valued partnerships through state, local and tribal assistance to enhance public safety, protect women and children, and reduce recidivism.
The Department of Justice’s key priorities include:
- $4 billion to sustain national security;
- $55 million increase for investigating and prosecuting financial and mortgage fraud;
- $31.8 million increase to uphold traditional law enforcement, immigration and litigation-related missions;
- $8.6 billion for federal prisons and detention;
- $2 billion to maintain assistance to state, local and tribal law enforcement;
- Over $1 billion in administrative efficiencies, programmatic savings redirections in grant programs and rescissions from balances.
"Underwear bomber" arguing that mandatory LWOP sentence is unconstitutional
Perhpas in part because there is no other argument to make at his upcoming sentencing, a high-profile federal defendant is making a low-probability claim in his sentencnig briefs (no pun intended). This local story, headlined "Underwear bomber challenges life sentence," provides the basics, and it begins this way:
Confessed underwear bomber Umar Farouk Abdulmutallab is challenging his mandatory life in prison sentence, arguing in court documents filed today that a life sentence is “cruel and unusual punishment” and unconstitutional. Abdulmutallab, who is scheduled to be sentenced on Thursday, is facing a mandatory life in prison sentence after pleading guilty in October to trying to blow up a Detroit-bound airliner carrying nearly 300 people with a bomb hidden in his underwear. He pleaded guilty to numerous criminal charges, including attempting to use a weapon of mass destruction, and conspiracy to commit terrorism.
The plot was foiled when his bomb malfunctioned. “Given the circumstances and what did NOT occur in the instant matter it is fair to say that the mandatory minimum sentence of life is excessive and grossly disproportionate to the conduct,” Abdulmutallab wrote in court documents today. “Aside from the defendant no passengers suffered any serious injuries and there were no casualties.”
The government strongly disagrees, and has asked U.S. District Judge Nancy Edmunds to give him the maximum punishment of mandatory life in prison. “Defendant is an unrepentant, would-be mass murderer, who views his crimes as divinely inspired and blessed, and who views himself as under a continuing obligation to carry out such crimes,” prosecutors wrote on Friday in a sentencing memo. “He attempted to murder 289 individuals, no sentence other than life …. Could possibly reflect the seriousness of defendant’s conduct.”
In pushing for a stiff sentence, the government also disclosed on Friday details about Abdulmutallab’s relationship with a well-known al-Qaida figure.
Just why are the "waits" on Florida's death row so long?
The question in the title of this post is prompted by this local article, headlined "Inmate on death row since 1980 set to die" which discusses not only today's scheduled execution in Florida, but also the state's long history of having those condemned to death wait a long time for an actual date with the execution chamber. Here are excerpts:
A twice-convicted murderer who has lived on Florida’s death row for more than three decades is scheduled to die by lethal injection this week for killing a St. Petersburg mother — but like many executions, why he is being killed now and why it didn’t happen years ago are both something of a mystery.
If 65-year-old Robert Brian Waterhouse is executed Wednesday at Florida State Prison near Starke, he will have lingered on death row longer than any of the previous 276 people executed by the state, according to the Department of Corrections. He’s spent more than 31 years mostly by himself in a 6-by-9-foot cell as his various appeals worked their way through the courts.
Just 18 of the 395 people currently on death row have been there longer than Waterhouse, who was sentenced in September 1980 for raping and killing 29-year-old Deborah Kammerer.
No one in Gov. Rick Scott’s office would talk in detail about the process that led him to pick Waterhouse over others whose appeals have run their course. It’s the third death warrant Scott has signed since taking office in January 2011....
Asked about it at an appearance in Tampa last week, Scott said he sits down with a team of staffers and goes through the roster of death row inmates who have exhausted their appeals. “I spend a lot of time praying about it and thinking about it, and it’s a hard decision,” he said. “There is not ever one issue” that leads to an inmate being selected to die.
Others familiar with the process say that because many condemned inmates’ cases are in various stages of appeal and new litigation is filed all the time, there is never a clear choice for the governor.
The attorney general’s office is charged with keeping track of the status of cases, and generally responds to requests from the governor regarding individual inmates who’ve been through their major appeals and the clemency process, and would likely be unsuccessful with any appeals filed after the death warrant is signed. Typically, they’ re inmates who haven’t initiated any new litigation in years.
Craig Trocino, who handled death row appeals for years before going to work for a University of Miami law school clinic, said the “incredibly secretive” nature of the governor’s selection process has always disturbed death penalty opponents. “There was no logic to any it, as far as we could tell, and nobody was speaking about it,” Trocino said....
University of Florida law professor George R. “Bob” Dekle, a former prosecutor who sent notorious serial killer Ted Bundy to death row, said Florida governors have rarely been forthcoming about the reasons they select one inmate over all the others for execution.
Dekle said appellate lawyers do their best to make sure it’s not an easy choice for the governor. They file whatever they can for as long as they can to keep their cases alive in the courts. New issues based on recent court rulings and changes in the law provide new fodder for appeals all the time, he said. “It’s guerilla warfare,” Dekle said. “As long as you can put it off, as long as you can delay, as long as you can keep the thing going in any way, shape or form possible, that’s how much time you’ve got.”
The remarkable fact that Robert Brian Waterhouse has been on death row in Florida since the Carter Administration is made even more remarkable by the fact that there are 18 killers on Florida's death row who have been there even longer! Because apparently none of these 18 long-timers have a scheduled execution date, and because Florida has averaged only about two execution per year over the last decade, it seems quite possible (even likely?) that some Sunshine State murderer may end up living a full half-century on Florida's death row. Wow.
As regular readers know, so-called "guerilla warfare" in litigation by those who represent condemned inmates is not at all unique to Florida. Moreover, the Eleventh Circuit does not have a long record (as does, say, the Ninth Circuit) of reversing lots and lots of death sentences. Thus, I cannot help but think Florida's state courts and/or its prosecutors may best account for why capital justice drags on so very long in the state. But perhaps in-the-know readers have more informed insights on just what slows down so dramatically the march to the death chamber in Florida (and, for that matter, whether anyone really cares all that much about how slow this march has come to be).
New GAO report reviews back-end sentencing realities in federal system
Thanks to The Crime Report, I just saw that the US Government Accountability Office has released a notable new report to Congress titled "Eligibility and Capacity Impact Use of Flexibilities to Reduce Inmates' Time in Prison."
This report, which is summarized on this webpage and is available in full at this link, is a lot more interesting and important for federal sentencing junkies than its title might suggest. The report provides the most detailed account that I have seen concerning who gets the benefit of the few back-end sentencing mechanisms in the federal system that determine how much time offenders actually serve for their offenses. Here is part of the summary from the GAO:
BOP’s use of authorities to reduce a federal prisoner’s period of incarceration varies. BOP primarily utilizes three authorities — the Residential Drug Abuse Treatment Program (RDAP), community corrections, and good conduct time.
(1) Eligible inmates can participate in RDAP before release from prison, but those eligible for a sentence reduction are generally unable to complete RDAP in time to earn the maximum reduction (generally 12 months). During fiscal years 2009 through 2011, of the 15,302 inmates who completed RDAP and were eligible for a sentence reduction, 2,846 (19 percent) received the maximum reduction and the average reduction was 8.0 months. BOP officials said that participants generally do not receive the maximum reduction because they have less than 12 months to serve when they complete RDAP.
(2) To facilitate inmates’ reintegration into society, BOP may transfer eligible inmates to community corrections locations for up to the final 12 months of their sentences. Inmates may spend this time in contract residential re-entry centers (RRCs) — also known as halfway houses — and in detention in their homes for up to 6 months. Based on the most recently available data, almost 29,000 inmates completed their sentences through community corrections in fiscal year 2010, after an average placement of about 4 months; 17,672 in RRCs, 11,094 in RRCs then home detention, and 145 in home detention only....
(3) Most eligible inmates receive all of their potential good conduct time credit for exemplary compliance with institutional disciplinary regulations — 54 days taken off their sentence, per year served, if an inmate has earned or is earning a high school diploma; 42 days if not. As of the end of fiscal years 2009, 2010, and 2011, about 87 percent of inmates had earned all of their available credit.
BOP also has other authorities, such as releasing prisoners early for very specialized reasons, but has used these less frequently for various reasons.
Inmate eligibility and lack of capacity impact BOP’s use of certain flexibilities and programs that can reduce an inmate’s time in prison.
February 13, 2012 in Criminal Sentences Alternatives, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack
February 12, 2012
Timely discussion of federal judicial concerns with guideline sentences for kiddie porn downloaders
Today's Boston Globe has this notable article on a controversial component of the federal sentencing guidelines. The piece is headlined "US judges balk at rigid child porn sentences; Say guidelines often demand punishment beyond severity of crime." Here are excerpts:
In 2010, federal judges deviated below sentencing guidelines in child pornography cases 43 percent of the time, compared with 18 percent for all other crimes, according to data from the US Sentencing Commission, the agency that Congress established to set the guidelines....
Just last month, a federal court judge in Boston sentenced a Dedham man to 21 months in prison for possession of child pornography -- far lower than the 63 months he faced under sentencing guidelines, and even lower than the 30 months prosecutors had recommended as part of a plea deal. The judge who pronounced the sentence was US District Court Judge Patti B. Saris, who also happens to chair the Sentencing Commission. “As far as I’m concerned, there are some problems with the guidelines," she said in open court in issuing the sentence.
In another example, US District Court Judge Michael A. Ponsor sentenced a man in 2010 in Springfield to four years of probation, though prosecutors asked that he serve the 6-to-8-year sentence called for by the guidelines.
The judges’ persistent departure from the guidelines for child pornography offenses has caused such a stir that the US Sentencing Commission has agreed to examine them again, listing the endeavor as a priority. A public hearing is set for Feb. 15 in Washington....
Prosecutors acknowledge that the guidelines should be reconfigured to better reflect a defendant’s culpability. But they maintain that any changes to how the guidelines are calculated should not affect the actual scale of the sentences. They say Congress -- and society -- have called for the toughened penalties for the crime.
“There’s been recognition nationwide that there’s been an epidemic," said James Lang, chief of the criminal division for the US attorney’s office in Massachusetts. “There is an exploitation [of children] that goes on every time those photos are shared."
Congress has been so aggressive in its efforts to toughen child pornography sentencing guidelines over the last decade that it overrode the Sentencing Commission’s edicts for the first time in its history, in 2003. The changes effectively doubled what the average sentence for possession of child pornography had been in the two previous years, according to a Sentence Commission study, from 28 to 54 months.
But within the legal community, there has since been a growing chorus of criticism from those who say the punishment is too great, even for such a universally reviled crime. “The sentences are excessive, and the issue is one that could be modified," said former US senator Arlen Specter of Pennsylvania, who has also served as a prosecutor. He co-authored a journal in a law trade magazine in October calling for sentencing reforms. “It’s important to justice. But it’s hard to do, because child pornography is so highly emotional."...
Opponents of the guideline argue that the additional penalties -- known as enhancements -- are inherent factors in the crime, and unfairly increase the guidelines. The guidelines, for instance, call for additional penalties if a computer was used in the crime, and for a further enhancement if the child depicted in the images is prepubescent or under 12 years old -- factors that exist in more than 90 percent of the cases, according to Sentencing Commission data. Also, anyone using a file-sharing network could fall under the distribution category because their images are open to anyone, even if they do not purposely send them out.
With added enhancements for sadistic or violent images, and for increased penalties when more pictures are involved, a defendant could face a sentence of 20 years in prison for receiving child pornography -- higher than guidelines for crimes involving use of a gun or physical violence or abuse.
Federal prosecutors defend the length of prison time, arguing that it protects the young children who are the victims in such cases. Lang acknowledged that the sentencing enhancements should be reconfigured to reflect the way the crime is carried out. A defendant should face tougher penalties for running a chat group, rather than simply being involved in the chats, for instance. Defendants should also face tougher sentences according to the ages of the victims in the photos.
Prosecutors argue that the public, and judges, should make no distinction between those who possess pictures and those who produce them, pointing to a case out of Milford in which the discovery of child pornography images led to the prosecution of an international child porn production ring. More than 100 young children have been identified and removed from dangerous environments, according to prosecutors.
This companion piece in the Globe reports on a number of cases in which child porn offenders received sentences well below applicable guideline ranges. As noted in the main article, the US Sentencing Commission has a big public hearing scheduled for this coming Wednesday to discuss these and related issues concerning the child porn guidelines. I am especially interest to see what the Justice Department says to the USSC about these matters and how the guidelines might be modified to foster more judicial respect for the sentences recommended in these cases.
"California's death penalty law: It simply does not work"
The title of this post is the headline of this op-ed in the Los Angeles Times, which is authored by Ron Briggs, a member of the Board of Supervisors in El Dorado County. Here is how it starts and ends:
In 1977, my dad, former state Sen. John Briggs, my brother-in-law and I got together to discuss California's death penalty. We agreed it was ineffective and decided a ballot initiative was needed to expand the number of murder categories eligible for capital punishment. We felt such changes would give prosecutors better tools for meting out just punishments, and that a broadened statute would serve as a warning to all California evildoers that the state would deliver swift and final justice.
We thought we were creating a national model for capital punishment. On a shoestring budget we collected more than 1 million signatures to put the proposition on the ballot. Half the signatures came via first-class business reply mail, which my wife, Kelly, and I manually processed. We didn't have laptops or self-adhesive stamps then, although we did have a bomb scanner, which we'd been trained to use by the FBI after they discovered a terrorist plot to kill my dad.
On Nov. 7, 1978, California voters passed the Briggs initiative on the death penalty. Back then, my future brother-in-law was Dad's district chief of staff and I proudly served as my father's personal aide. Today Dad is retired, my brother-in-law is a California Superior Court judge and I am in my second term as a county supervisor representing rural District IV in the county of El Dorado, east of Sacramento.
Recently, the three of us sat together under a rose trellis in the quiet cool of morning to talk politics. Each of us remains a staunch Republican conservative, but our perspectives on the death penalty have changed. We'd thought we would bring California savings and safety in dealing with convicted murderers. Instead, we contributed to a nightmarish system that coddles murderers and enriches lawyers. Our initiative was intended to bring about greater justice for murder victims. Never did we envision a multibillion-dollar industry that packs murderers onto death row for decades of extremely expensive incarceration. We thought we would empty death row, not triple its population.
Each of us, independently, has concluded that the death penalty isn't working for California....
The Briggs death penalty law in California simply does not work.
Had I known then what we do today, I would have pushed for strong life sentences without the possibility of parole. I still believe that society must be protected from the most heinous criminals, and that they don't deserve to ever again be free. But I'd like to see them serve their terms with the general prison population, where they could be required to work and pay restitution into the victims' compensation fund.
There are few "do-overs" in life, especially in politics. With the death penalty, though, 34 years later I have an opportunity to set things right. The Briggs family has decided to endorse the SAFE California campaign, a fall 2012 ballot initiative that would replace the death penalty with a punishment of life without the possibility of parole. The state has another chance at real justice. We should embrace it.
A broader perspective on Barbour pardon spree and surrounding controversy
Professor P.S. Ruckman, who write the always effective Pardon Power blog, has this new commentary inMississippi's Clarion-Ledger running under the headline "Lessons from Barbour: When cooler heads prevail, very few changes may be made, though." Here are a few excerpts:
[W]hen all is said and done, more will be said than done. As these kinds of storms calm, cooler minds just about always conclude there are many more reasons to retain the pardon power as it is, than there are to abolish it, or even modify it in any significant way. The pardon power is not an archaic residue of monarchy that accidentally crept into state and federal constitutional schemes. It is a deliberately incorporated, necessary and appropriate check and balance in our system of separation of powers. Can the power be abused? Yes, as can any other. Is it anti-democratic in nature? Yes, as is the electoral college, judicial review and other features of the Constitution, which guarantees a "republic," not a "democracy" (Article IV, Section 4)....
Mississippi legislators should also take note of what Alexander Hamilton says in Federalist 74 regarding Haley Barbour-like pardoning. Hamilton argues the executive will rightly exercise "scrupulousness and caution" in granting pardons, and do so with "circumspection" if there is "dread" of being "accused of weakness or connivance" and the executive is in "apprehension of suspicion or censure" for pardons which are considered "injudicious" or "affected." Which is to say, the best check against the abuse of the pardon power is, and always will be, public scrutiny.
Mr. Barbour clearly did not experience anything at all like dread, apprehension or circumspection. Yet, Hamilton's analysis all but screams the solution: Mississippi gubernatorial candidates need to be asked about their view of pardons. Do they intend to grant them? If so, how often? Or, how little? And why? They also need to be questioned about last-minute pardons and what factors they would consider in granting pardons. Candidates should explain their view of the state Parole Board, how important they consider its work and whether they will generally follow its recommendations?...
In sum, Mississippi can address pardon fiascos without overhauling its Constitution or rejecting what the Founding Fathers considered an important feature of our system of checks and balances and separation of powers. Mr. Barbour well deserves his share of the blame. But dread and circumspection can (and should) be created by a well-represented public that cares, a process that is transparent and an attentive press.
I highlight these excerpts from Ruckman's commentary because I think the media and the public ought also be asking these kinds of questions of US Presidential candidates. The federal clemency power has been more often wickedly abused than wisely used over the last two decades, and in public debates and other political discourse, there ought to be questions raised about candidates' views of the federal clemency power and process.