March 9, 2013
"The Conservative Case Against More Prisons"The title of this post is the headline of this lengthy new piece authored by Vikrant Reddy and Marc Levin, senior policy advisers to the Right on Crime campaign, and now appearing in The American Conservative. Here is how it starts:
Since the 1980s, the United States has built prisons at a furious pace, and America now has the highest incarceration rate in the developed world. 716 out of every 100,000 Americans are behind bars. By comparison, in England and Wales, only 149 out of every 100,000 people are incarcerated. In Australia — famously founded as a prison colony — the number is 130. In Canada, the number is 114.
Prisons, of course, are necessary. In The Scarlet Letter, Nathaniel Hawthorne observed that “The founders of a new colony, whatever Utopia of human virtue and happiness they might originally project, have invariably recognized it among their earliest practical necessities to allot a portion of the virgin soil… as the site of a prison.” As long as there are people, there will be conflict and crime, and there will be prisons. Prisons, however, are not a source of pride. An unusually high number of prison cells signals a society with too much crime, too much punishment, or both.
There are other ways to hold offenders — particularly nonviolent ones — accountable. These alternatives when properly implemented can lead to greater public safety and increase the likelihood that victims of crime will receive restitution. The alternatives are also less costly. Prisons are expensive (in some states, the cost of incarcerating an inmate for one year approaches $60,000), and just as policymakers should scrutinize government expenditures on social programs and demand accountability, they should do the same when it comes to prison spending. None of this means making excuses for criminal behavior; it simply means “thinking outside the cell” when it comes to punishment and accountability.
This argument is increasingly made by prominent conservatives. Bill Bennett, Jeb Bush, Newt Gingrich, Ed Meese, and Grover Norquist have all signed the Statement of Principles of Right On Crime, a campaign that advocates a position on criminal justice that is more rooted in limited-government principles. They are joined as signatories by the conservative criminologist John Dilulio and by George Kelling, who helped usher in New York City’s successful data-driven policing efforts under Mayor Rudolph Giuliani. Some groups, like Prison Fellowship Ministries, approach the issue from a socially conservative perspective. Others, like the American Legislative Exchange Council and the State Policy Network, have fiscal concerns top of mind. Regardless, a sea change is underway in sentencing and corrections policy, and conservatives are leading it.
Interesting developments in "smart gun" discussions and debateI just came across this notable piece from California on my favorite firearms topic, namely smart gun technologies and policies. The report is headlined "Personalized guns touted as safety check," and here is how it starts:
In the latest James Bond movie, the hero is given a gun that recognizes the palm of his hand. Later, when a bad guy snatches the pistol away in a tussle, it won't fire, and Agent 007 lives to die another day. It may have felt like Hollywood fantasy, but the basic premise is very real — and very dear — to some lawmakers and gun control advocates.
They believe that in the age of smartphones and the aftermath of December's elementary school massacre in Connecticut, the time has come for a marriage of firearms — which have changed little for decades — and modern technology that allows all sorts of devices to be personalized to their user.
President Obama, in the anti-gun-violence plan he introduced in January, directed the attorney general to issue a report on "existing and emerging gun safety technologies." He also promised prizes to companies that develop the smart guns.
Sensing momentum, state Sen. Mark DeSaulnier, D-Concord, introduced legislation last month that would require all handguns sold in the state to be "owner-authorized." Under the bill, which is similar to one New Jersey passed in 2002, standard guns would become illegal for sale 18 months after the state Department of Justice determines personalized guns are readily available and function well.
The idea is that a gun should be useless if picked up by a child or a suicidal teen or stolen in a burglary. The weapons would feature biometric technology such as fingerprint or grip recognition, or radio-frequency identification, which is used in employee-access badges and the toll-collection system FasTrak.
The guns could be used only by their owner, who in some cases would have to wear a special watch or ring to be able to fire the weapon. The firearms could be configured to allow for multiple users, such as family members.
Skeptics of the technology point out that, despite years of research and high hopes, such guns are still not available in the United States. But that may be changing.
Belinda Padilla, the head of U.S. sales for a German company called Armatix, said the firm plans to sell a .22-caliber pistol in the United States by this summer that works only after its user activates it by entering a five-digit code into a wristwatch. The watch uses radio waves to communicate with the gun. "The bottom line is, this exists now," said Stephen Teret, founder of the Center for Gun Policy and Research at Johns Hopkins University, who has followed the progress of personalized guns for years. "The question isn't one of technological feasibility anymore, but one of policy."
No one doubts the tough politics around personalized guns, which have been studied and debated for more than two decades. Many gun owners oppose them, saying they fear the technology will fail them in a pinch. A major gun control group, the Violence Policy Center in Washington, D.C., also opposes the idea, arguing that personalized technology would save few lives, distract from more important efforts, and give a false impression that guns are safe, perhaps driving new sales.
Brandon Combs, who heads the Calguns Foundation, a gun rights organization, said personalized guns aren't close to being marketable or reliable. Even if they were, he said, a law mandating their sale would make guns much more expensive and difficult to use, infringing upon the constitutional right to bear arms. "We're creating laws now for a possible future that may or may not ever come to fruition, and to me that's silly," Combs said. "The reality is this would do nothing but create another opportunity for California to ban handguns and make them expensive for people."
A few recent and older related posts:
- Could latest tragic mass shooting prompt renewed consideration of "smart gun" technologies?
- "Smart Gun Technology Could Have Blocked Adam Lanza"
- Sentencing "highlights" in President Obama's new gun control push
- Technology, smart guns, GPS tracking and a better Second Amendment
- More on smart guns, dumb technologies and market realities
March 8, 2013
Smarter Sequestration: simple statutory ways to save prison monies (and avoid federal furloughs?)
I have been talking to a variety of federal criminal justice folks since sequestration became official on March 1, 2013, and there has been much buzz about possible furloughs. And in his Senate testimony Wednesday, AG Eric Holder closed with this ominous comments about the impact of sequestration:
[C]uts are already having a significant negative impact not just on Department employees, but on programs that could directly impact the safety of Americans across the country. Important law enforcement and litigation programs are being disrupted. Our capacity — to respond to crimes, investigate wrongdoing, and hold criminals accountable — has been reduced. And, despite our best efforts to limit the impact of sequestration, unless Congress quickly passes a balanced deficit reduction plan, the effects of these cuts — on our entire justice system, and on the American people — may be profound.
But, as my post title suggests, I think we could and should improve the administration of justice and save money if DOJ and BOP and others would use existing statutory mechanisms to reduce federal prison populations and costs. FPD Steve Sady recently reminded me that, a year ago, the federal defenders, drawing from data gathered by the Government Accountability Office, provided a simple roadmap of action that could and should be taken now to reduce excessive sentencing practices which is could save hundreds of millions of dollars just by better implementing certain "smart sentencing" statutes.
The title of the federal defender report, which is available here, sets the tone: "GAO Report Reveals Multiple Ways To End The Waste Of Millions On Unnecessary Over-Incarceration." The full report is a dense account of BOP policies that lead to longer periods of incarceration than necessary to accomplish sentencing goals; the key recommendations suggest we could achieve large savings simply by providing some relief to the least dangerous and most deserving of federal prisoners. This executive summary from the report makes these essentials clear:
First, the GAO identified three statutory programs that, if fully implemented, would save taxpayer dollars that are now being wasted on unnecessary incarceration:
• The BOP underutilizes the residential drug abuse program (RDAP) incentive for nonviolent offenders. If inmates had received the full 12-month reduction from 2009 to 2011, the BOP would have saved up to $144 million. Much more would be saved if all statutorily eligible prisoners were allowed to participate.
• The BOP underutilizes available community corrections so that inmates serve an average of only 4 months of the available 12 months authorized by the Second Chance Act. Just by increasing home confinement by three months, the BOP could save up to $111.4 million each year.
• The BOP underutilizes available sentence modification authority for “extraordinary and compelling reasons,” depriving sentencing judges of the opportunity to reduce over-incarceration of deserving prisoners whose continued imprisonment involves some of the highest prison costs.
Second, the GAO confirmed that amending the good time credit statute to require that inmates serve no more than 85% of the sentence would better calibrate actual time served with the assumptions underlying the sentencing guidelines consulted at sentencing. Both the Department of Justice and the BOP favor the amendment. After the release of about 3,900 inmates in the first fiscal year, the BOP would continue to save about $40 million a year once the amendment was enacted.
Third, the GAO identifies cost savings that the BOP could realize simply by using available rules for executing and calculating sentences. For example, the BOP unilaterally abolished the shock incarceration program, spending unnecessary millions by replacing sentence reductions and increased home detention with prison time for nonviolent offenders with minimal criminal history. The BOP also fails to treat defendants’ time in immigration custody as “official detention,” an unnecessary policy that increases custody costs by creating dead time. The BOP should act immediately to end these and other unnecessary and wasteful policies.
March 8, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23) | TrackBack
Is Miller an Eighth Amendment "bombshell or baby step"?I have the honor and pleasure of participating today in a fantastic Missouri Law Review symposium which is to explore the question in the title of this post. This webpage details today's schedule of panels and speakers, and this page reports on these essentials of today's event:
This year's Missouri Law Review Symposium will focus on constitutional, practical and policy matters, regarding juveniles and sentencing more generally, that now challenge courts, legislatures and attorneys in the opinion's wake.
On the constitutional front, in what ways are adult offenders who are subject to mandatory sentencing schemes asking lower courts to extend Miller, and how are those courts replying? The Miller opinion extends the Court's "death is different" doctrine to mandatory life-without-parole sentences for juveniles: should that doctrine, requiring individualized sentencing, apply in other contexts? How are state legislatures and Congress responding — and how should they respond — in designing sentencing procedures for juvenile homicide offenders? What special challenges will attorneys face when representing a juvenile in a life-without-parole sentencing trial? Morally, to what extent, if any, do recent discoveries in developmental psychology and neuroscience shed normative light for courts and legislatures on juvenile offenders.
Judge Nancy Gertner, Professor of Practice at Harvard Law School, will deliver the keynote address. She will be joined by eminent attorneys, inside and outside the academy, to explore these and other important questions regarding criminal sentencing in general and juvenile sentencing in particular.
March 8, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
March 7, 2013
Is a "model" medical marijuana law been concocted in the laboratory of Illinois?As all good law geeks know, in a renowned dissent in New State Ice, Justice Louis Brandies famously observed that "one of the happy incidents of the federal system [is] that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." This laboratory metaphor seems especially apt for what we see going on with marijuana reform in so many states; I especially like the notion that different states can and will refine their on-going social and economic marijuana experiments after seeing what works and does not work in other locales.
With that (social) science background, I found especially interesting this new local story from Illinois, which is headlined "House committee endorses medical marijuana pilot project." Here is how the piece starts:
An Illinois House committee on Wednesday endorsed a proposed four-year pilot project to legalize medicinal use of marijuana. State Rep. Louis Lang, D-Skokie, said if the project is approved, it would be the toughest medical marijuana law in the nation. Currently, 18 states and the District of Columbia have laws permitting medical use of marijuana.
Lang, who is sponsoring the current version, said a similar measure that he unsuccessfully proposed last year outlined the toughest regulations ever written on the subject, and this year’s proposal “goes many steps further.”
“This is clearly model legislation for the country, if we were to pass it,” Lang said.
The proposal would allow patients diagnosed with specific conditions — such as cancer, multiple sclerosis and HIV — to get a special ID card allowing them to buy limited amounts of medical marijuana from state-licensed dispensaries.
Patients and caregivers would have to buy marijuana from one of 66 state-licensed dispensaries, which would get the marijuana from one of 22 state-licensed growers. “The bill will allow very sick people to get a product that they need to feel better,” Lang said. “Their quality of life is at stake.”
Given that two states have now already legalized small quantities of marijuana for recreational uses and they only a few states have been eager to embrace very tough regulations for medical marijuana, I am not sure State Rep. Lang should be so confident that the legislation he has proposed is likely to be embraced by lots of other states. That said, if (and when?) there is a move in Congress to start to back away from federal pot prohibition, perhaps those states which experiment with the toughest medical marijuana laws will end up getting a special gold star for their laboratory reports.
DOJ agrees with US Sentencing Commission that child porn guidelines are badly brokenThanks to a helpful reader, I have learned that earlier this week a representative of the US Department of Justice sent a lengthy and detailed letter to the US Sentencing Commission concerning its recent huge child pornography federal sentencing report (basics here and here). Disappointingly, as of this writing, I cannot seem to find a copy of this important and interesting letter on the website of either the DOJ or the USSC. ButI have a pdf copy of the letter, which is dated March 5, 2013, and I have posted the full 7-page letter below.
The lengthy letter needs to be read in full by any and everyone concerning with federal child porn sentencing dynamics. And these sentences from the first page highlights that DOJ agrees with the USSC's basic conclusion that the current child porn federal sentencing guidelines are badly broken:
[T]he Department agrees with the Commission's conclusion that advancements in technologies and the evolution of the child pornography "market" have led to a significantly changed landscape -- one that is no longer adequately represented by the existing sentencing guidelines. Specifically, we agree with the Report's conclusion that the existing Specific Offense Characteristics ("SOCs") in USSG § 2G2.2 may not accurately reflect the seriousness of an offender's conduct, nor fairly account for differing degrees of offender dangerousness. The current guidelines can at times under-represent and at times over-represent the seriousness of an offender's conduct and the danger an offender possesses.
As I suggested in this recent post, now that the US Sentencing Commission has said that the current federal guidelines for child pornography are broken, it not longer seems proper for these guidelines to be given much weight and it seems plainly improper for within-guideline CP sentences to still carry a presumption of reasonableness on appeal. Now that the Justice Department has officially stated that it agrees with the USSC's position on these guidelines, I wonder if federal prosecutors will not be not merely authorized, but actually required, to agree with the common defense arguments in CP cases that the current guidelines should be afforded little or no weight in the broader 3553(a) analysis.
Indeed, in light of this DOJ letter, which details the many ways ways in which the current CP guidelines are broken, perhaps circuit courts should begin to adopt a blanket presumption of unreasonableness for any and every within-guideline child porn sentence. (Of course, that presumption could be rebutted if and when a district judge were to explain how other 3553(a) factors justified a within-guideline sentence in a child porn case. But, in light of what the USSC and DOJ are saying about the flaws of the current CP guideline, it would seem only logical now to view any within-guideline child porn sentence as presumptively flawed rather than presumptively sound.)
Recent related posts:
- US Sentencing Commission releases big new report on federal child porn sentencing
- Doesn't the new USSC report necessarily rebut any appellate "presumption of reasonableness" for within-guideline child porn sentences?
- The many (impossible?) challenges of federal child pornography sentencing
March 7, 2013 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack
"Medical marijuana businesses see opportunity in Mass."One need not remember this classic scene from a classic political movie to know that one of the best ways to understand and predict human behavior (of politicians and others) is to "follow the money." This fascinating new Boston Globe article, with the headline that is quoted in the title of this post, has me thinking about these realities and the many ways in which they seem sure to impact our nation's quickly evolving perspectives on marijuana use and distribution. Here are excerpts from the article:
Kayvan Khalatbari rings up more than $1 million in annual sales at Denver Relief, the medical marijuana dispensary he runs out of a downtown storefront, and business keeps getting better.
But rather than opening an additional store, Khalatbari, 29, is expanding in a different direction: He has been devoting more time to doing lucrative consulting work for about 15 fledgling cannabis entrepreneurs who are interested in setting up shop in Massachusetts.
Denver Relief is one of several companies in Colorado — the epicenter of the nation’s medical marijuana industry — eager to capitalize on the expected “green rush” as Massachusetts’ medical marijuana program gets off the ground this year.
There is lots of money to be made by the ancillary businesses — including consulting, accounting, law, and marketing — as well as in the treatment centers. “There is a great opportunity here in Massachusetts,” said Khalatbari, who charges $250 an hour for his services.
Tripp Keber, widely considered the king of cannabis-infused products, is also looking East. His Dixie Elixirs & Edibles enterprise earned more than $1 million in 2012 by selling medicated carbonated beverages, infused edibles such as chocolate truffles and fruit lozenges, and other items to roughly 500 medical marijuana dispensaries in Colorado, where medical marijuana has been legal since 2000. The medical marijuana business has spawned a variety of companies making products like drug-laced mints and containers. The bag at bottom right holds medicated drinks, balms, and salves.
Keber projects his company’s sales will more than triple this year as Dixie Elixirs strikes deals in Arizona, Washington, D.C., Connecticut, and Massachusetts. He is in discussions with six Bay State entrepreneurs, including one in Nantucket, to license the brand and technology.
At Dixie’s Colorado headquarters, molecular biologists wearing white lab coats work with mechanical engineers, chemists, food scientists, and a chef to create dozens of products in a Willy Wonka-like setting. They concoct a rainbow of elixirs, including sparkling pomegranate sodas formulated with up to 75 milligrams of THC (the active ingredient in marijuana) per 12-ounce serving and mandarin orange-flavored energy boosters with about 60 milligrams of THC and as much caffeine as a cup of premium coffee. The standard dose is about 10 milligrams, so such products are not intended to be single-serve.
Keber has more than 40 employees after acquiring four medical marijuana businesses and is negotiating to take over two more. To support the growing empire, Dixie has hired three law firms, five consultants, a graphic designer, and a security company.
“Medical marijuana has created a cottage industry. This business is growing exponentially,” Keber said during an interview in his office, where he proudly showcases Dixie’s most recent honor: a fake marijuana leaf in a snow globe emblazoned with the words “Most Valuable MMJ Business,” awarded by local cannabis consultants. (MMJ is industry shorthand for medical marijuana.)
“Two to three years ago, we couldn’t get someone to return our calls,” Keber said. “Now, on any day, we have three to five vendors calling, e-mailing, or knocking on our door wanting to do business with us.”
When states start medical marijuana programs, the business impact extends far beyond dispensaries and cultivation operations, said Chris Walsh, editor of the Medical Marijuana (MMJ) Business Daily, a trade publication based in Denver. Many other types of companies crop up to provide services, including hydroponics shops, software firms, and packaging vendors. For instance, MMC Depot, a Colorado company that sells high-end glass jars and colorful plastic prescription bottles to hold marijuana, is interested in opening an East Coast branch in Boston. “These other businesses generate millions of additional dollars in revenues and put more people to work,” Walsh said.
In Denver, Brian Vicente has built a law practice around medical marijuana. He helps start-ups across the country cope with local laws, negotiate leases, draw up mergers and acquisitions, and — if needed — represents them in court. The company is doing so well it recently moved from a modest office — with waiting room magazines that included The Hemp Connoisseur and High Times Medical Marijuana — to a brick mansion across the street.
Vicente’s firm has doubled its space and shares some with other medical marijuana firms. He was one of the first Denver professionals to set up an office in Massachusetts and hire a full-time lawyer, based in the Financial District, who helped organize the recently formed Massachusetts Medical Marijuana Association.
He estimates Massachusetts could enroll more than 100,000 patients within two years — similar to the patient base in Colorado. “We know this issue is going to be big, and we want to help it grow in the right direction,” Vicente said.
Noting the intersection of mental illness and gender in incarceration nation
This recent article in the Denver Post, headlined "Two of three women in Colorado prisons diagnosed with psychological disorders," provides a notable window into the impact and import of issues of mental illness and gender with regard to who commits crimes and gets sent to prison for their crimes. Here is how the piece starts:
The number of Colorado female prisoners diagnosed with psychological disorders has risen sharply to more than twice the level of male prisoners.
The women are almost without exception victims of severe sexual and physical abuse, experts say. They cycle through jail and prison, often because they don't get adequate treatment or community support.
"The trauma histories are extreme," said Theresa Stone, chief of mental health at Denver Women's Correctional Facility. "It's hard to hear what these women have been through."
While most women are incarcerated for nonviolent crimes, a certain percentage of them are committing increasingly violent acts, Stone said.
"Women are in many cases extremely violent," she said. "I think we're seeing the impact of abuse and mental illness."
The state prison system has in recent years taken great strides in diagnosing and addressing the needs of mentally ill women, Stone said. There is drug counseling, psychological treatment and group therapy. Some women live in highly structured therapeutic communities in special pods. The first step was identifying the true scope of the problem, Stone said.
In 2001, a Colorado Department of Corrections review determined that 39 percent of women incarcerated in Colorado were diagnosed with some type of mental illness. A Dec. 31 report says that 67 percent of those women are mentally ill.
That is slightly lower than the national rate of women incarcerated in prison. According to a December 2006 Department of Justice study, 73 percent of women in state prisons nationally have some type of mental disorder. Within the general population, 12 percent of women have a diagnosed mental disorder, the same report says.
The percentage of men in Colorado prisons with a diagnosed mental illness also increased dramatically in the same time frame — from 18 percent to 30 percent — but the ratio is less than half the level of female inmates.
The percentage of female prisoners suffering mental conditions, including schizophrenia, bipolar disorder and major depression, has always been high but many women hadn't been diagnosed, experts say. Many of the women also had declined to seek treatment until they were behind bars.
March 6, 2013
Notable commentary as Catholic University’s Columbus School of Law launches new clemency "partnership"I just came across this law school website account of an event last month launching an important new law school project in the Washington DC area. The discussion carries the heading "Law School to Host Clemency and Pardons Clinic in Collaboration with Former Governor Robert L. Ehrlich, Jr.," and here are some of the notable details from the launch event:
The Catholic University of America’s Columbus School of Law has been selected as the institutional home for “The CUA Law/Ehrlich Partnership on Clemency," among the country’s first law school-based clinics devoted to the research and study of executive clemency and the power of pardon.
The official announcement was made on at the National Press Club on Feb. 20 by Robert L. Ehrlich, Jr (above), who served as Maryland’s 60th governor from 2003-2007 and whose tenure was distinguished by the time he spent personally reviewing requests for pardons from convicted criminals.
Currently a senior counsel at King and Spaulding (which announced a $5,000 donation to the new partnership with another to follow next year), Ehrlich characterized the clemency project with the law school as a vital tool to educate and remind state chief executives of the vast power they possess but too often use infrequently.
“This is part of the job. But, your political courage quotient will be tested. It’s a strange issue, and neither Democrats nor Republicans seem to care very much about it,” Ehrlich said.
Under the auspices of its already established Innocence Project, the Columbus School of Law will expand the scope of its students’ current duties to include the preparation of pardon applications starting next August.
“We will also conduct a training program for newly elected state executives or their chiefs of staff, and we will provide a venue for educational and advocacy programs on executive clemency,” said law school Dean Daniel Attridge. “This is a splendid example of how our cooperative efforts can directly benefit our institution, our students, and our mission to serve the public.”
The announcement of the clemency clinic partnership came against the larger backdrop of a CUA Law sponsored symposium on the subject: “Smart on Crime: A New Era of Bipartisan Criminal Justice Reform,” that invited leading experts to dissect the shortcomings of the current system and suggest improvements.
Panelist Edwin Meese III, who served as served as the 75th Attorney General of the United States under President Reagan and currently holds a chair in public policy at The Heritage Foundation, said that California began improving its pardon policies dramatically back in the 1960s when Reagan served as governor. But a pardon can rest on a convict’s behavior behind bars, and Meese said that brutal prison conditions can make it hard to be a model inmate....
There would be much less of a need for gubernatorial pardons in the first place if fewer behaviors were criminalized, said Rep. Bobby Scott, (D-VA). Mandatory minimum sentences for non-violent drug offenses, he said, are a big part of the problem. “These sentences discriminate against minorities and violate common sense,” said Scott. “We can reduce crime or we can play politics. Unfortunately, we can’t do both.”
Margaret Love, who served as the U.S. Pardon Attorney between 1990 and 1997 and focuses her private practice on the issue today, could not understand the reluctance of many politicians who hold the power of pardon to use it. “It should be one of the happiest duties of an executive. It should be easy,” said Love, who expressed surprise and disappointment in President Obama’s record so far of issuing just 22 presidential pardons, the lowest total to date in American history.
Three follow-up comments concerning this exciting new clemency intitiative:
1. I hope this new project might develop some sore of web presence, as I continue to believe there should be a lot more new media coverage and discussion of modern clemency issues.
2. I suspect it was just a coincidence that only a few days after this event, President Obama granted a significant and somewhat unexpected new batch of pardons (details here). Nevertheless, if I was in some way involved with this new clemency project, I would be dang sure to at least speculate that the timing of project's launch and these new pardon grants might have been more than mere coincidence.3. Though never eager to look a gift horse in the mouth, I am a bit stunned that the massive King and Spaulding law firm only donated a measly $5,000 to this important endeavour. A quick bit of research reveals that K&S has over 300 partners who with average profits/partner recently approaching $2,000,000/year. If merely 1% of all the K&S partners had been willing to kick in just only 0.33% of their yearly profits to this important endeavor, this project would have gotten a donation twice as large. I do not mean to be overly critical of K&S here, but I do mean to highlight how hard it often can be to get even those folks with very deep pockets to be willing to give significant sums to any criminal justice initiative even when it is headed by a former Republican Governor.
US Sentencing Commission soon to be looking for a new staff directorBecause I have come to know and really like the current staff director of the United States Sentencing Commission, I am now really quite melancholy about having just discovered this new press release on the USSC's website. Here is how it begins:
Judith W. Sheon announced that she will retire on May 31, 2013, after serving for eight years as staff director of the United States Sentencing Commission. She retires as the longest serving staff director of the Commission, having served under three chairs of the bipartisan agency — Judge Ricardo H. Hinojosa of the Southern District of Texas, Judge William K. Sessions III of the District of Vermont, and most recently Judge Patti B. Saris of the District of Massachusetts.
Ms. Sheon’s tenure as staff director was marked by the Commission’s transition to advisory guidelines after the Supreme Court decision in United States v. Booker. She led the Commission’s efforts to modernize and expand its collection, analysis, and reporting of federal sentencing data, and oversaw the drafting of several major reports to Congress, including two reports on federal child pornography offenses and the continuing impact of Booker on federal sentencing that were issued last month. Among the Commission’s major policy accomplishments during her tenure are amendments that reduced the guideline penalties for crack cocaine offenses.
After state senate vote, Maryland appears poised to repeal its (already dormant) death penaltyAs reported in this extended Washting Post article, earier today the "Maryland Senate voted 27 to 20 to repeal the state’s death penalty Wednesday after four days of heated and emotional debate, putting Gov. Martin O’Malley (D) on the brink of a long-sought legislative victory." Here are more details and context:
Supporters of the legislation argued that capital punishment is not an effective deterrent, is costly and creates the risk of executing innocent people.... Opponents countered that the death penalty can be an important law-enforcement tool and should be kept on the books for heinous cases, several of which were recounted in graphic detail on the Senate floor....
The bill moves next to the House of Delegates, where repeal advocates say they are confident they have the votes. The Senate had long been viewed as the tallest hurdle for the legislation. O’Malley’s repeal bill was introduced this session with 67 co-sponsors in the House, leaving supporters just four delegates to sway to get a majority. Del. Samuel I. Rosenberg (D-Baltimore), a champion of the legislation, said he is confident his side has the votes to prevail in coming weeks.
Maryland voters could have the final say on the issue, however. If the bill passes the House, opponents have vowed to make use of a provision in the state Constitution that allows citizens to petition recently passed laws to the ballot, as happened with same-sex marriage last year. The outcome of a death penalty referendum would be far from certain.
A Washington Post poll released last week showed that a majority of Marylanders want to keep the death penalty on the books despite widespread skepticism across the state about whether capital punishment is a deterrent to murder or is applied fairly.
O’Malley’s bill would replace death sentences with life in prison without the possibility of parole. It would not affect the five inmates currently on death row in Maryland, leaving it to the governor to determine whether to commute their sentences....
Maryland would become the 18th state to abolish the death penalty, and the sixth in six years, reflecting new momentum for repeal efforts nationally. The NAACP has put a priority on the issue and is focused heavily on Maryland this year.
Maryland has has not carried out an execution since 2005, when O’Malley’s Republican predecessor, Robert L. Ehrlich Jr., was in office. The state has had an effective moratorium on capital punishment since December 2006, the month before O’Malley took office, when Maryland’s highest court ruled that regulations on lethal injection had not been properly adopted.
The O’Malley administration has yet to implement new regulations, and the shortage of a drug prescribed in Maryland for executions could complicate the efforts of any future governor to resume executions. Some opponents of the repeal harshly criticized O’Malley for failing to move forward during the past several years. “It’s hard to say something doesn’t work if you don’t use it,” Colburn argued.
Two Republicans joined 25 Democrats in the chamber in voting for the repeal on Wednesday. The measure was opposed by 10 Republicans and 10 Democrats.
Debate on the measure was dominated by efforts to create exceptions to the repeal. Bill supporters fended off more than a dozen amendments, including provisions that would have allowed executions to continue for people who kill law-enforcement officers, for people who kill while in prison and people who rape their victims before killing them.
Recent related posts:
- Maryland legislature moves one step closer to repealing state's death penalty
- New poll indicates most Maryland citizens do not support death penalty repeal efforts
"Sen. Leahy: Sequester should halt federal marijuana raids"The title of this post is the headline of this Washington Times account of some discussion about federal marijuana policy today in the Senate Judiciary Committee. Here are the details:
The Obama Justice Department is still trying to figure out how to handle the legalization of marijuana possession in Colorado and Washington state, but one senator on Wednesday said that in an era of stretched budgets, the feds should back off.
“I would suggest there are more serious things than minor possession of marijuana,” Sen. Patrick J. Leahy, Judiciary Committee chairman, told Attorney General Eric H. Holder Jr.
Minutes earlier, Mr. Holder had warned that the budget sequesters are forcing him to cut more than $1 billion from his department’s operations and said that could hurt national security.
Mr. Leahy, Vermont Democrat, said that’s all the more reason to not continue targeting marijuana users.
Mr. Holder is trying to figure out how the federal government, which still considers marijuana a major illegal drug, will deal with pot users in states where it’s been legalized. He said he expects to have a policy soon.
Ohio completes its 50th execution in modern eraAs reported in this new AP report, headlined "Ohio executes man who fatally shot security guard," my own great state of Ohio has this morning reach a notable modern death penalty milestone. Here are the basics:
A man who fatally shot an adult bookstore security guard in 1994 at the end of a multistate crime spree was executed on Wednesday.
Frederick Treesh received a single powerful dose of pentobarbital and was pronounced dead at 10:37 by Donald Morgan, warden of the Southern Ohio Correctional Facility in Lucasville. Treesh was sentenced to die for killing Henry Dupree in Eastlake east of Cleveland on Aug. 27, 1994.
Treesh, in a last statement, apologized for the death of Dupree, but said he wouldn't say he was sorry to family members of a video store clerk killed in Michigan who were witnessing the execution. "I've never been tried, I've never been charged," he said. After a few more comments he said, "If you want me murdered, just say it."
Treesh was the 50th inmate put to death by the state since it resumed executions in 1999.
Gov. John Kasich denied Treesh clemency last week, following the recommendation of the state parole board, which ruled unanimously last month that the evidence showed Dupree was seated when shot and hadn't shown any sign of being a threat to Treesh. The board also said Treesh's decision to shoot a clerk in the face as he left the store suggests Treesh's "murderous intent" when coming to the store. Treesh and his co-defendant "gratuitously brutalized, humiliated and killed innocent people, most of whom, like Dupree, posed no real or perceived threat to them," the board said.
Prosecutors say Treesh, 48, and the co-defendant robbed banks and businesses, committed sexual assaults, stole cars, committed carjackings and shot someone to death in a Michigan robbery during a spree that also took them to Indiana, Iowa, Minnesota and Wisconsin.
Just a decade ago, Ohio was among a number of large industrial and western states with a fairly large death row but few actual executions. States still in that category include California, Nevada and Pennsylvania and used to include Illinois.
But now Ohio in among the ranks of mostly southern states that have completed more than 50 executions in the post-Furman modern death penalty era. Via this page at the Death Penalty Information Center, here is a list of the states that Ohio has now joined (with their total modern executions in parentheses):
March 5, 2013
UN agency and former DEA officials complain about the end of pot prohibition in two statesAs reported in this notable Wall Street Journal article, headlined "Government Urged to Act Over Pot Laws," there are some notable new folks making noise about the efforts by two US states to end pot prohibition. Here are the interesting details:
A United Nations agency and a group of former U.S. Drug Enforcement Administration heads pressed the U.S. government Tuesday to challenge laws making recreational pot use legal in Colorado and Washington state.
The U.N.'s International Narcotics Control Board, which monitors implementation of U.N. drug-control conventions, said in its 2012 annual report that the states' pot laws violate international narcotics conventions and that it "urges the Government of the United States to take the necessary measures to ensure full compliance with the international drug control treaties on its entire territory."
Separately Tuesday, eight former DEA administrators issued a joint warning that the government must act now or lose the chance to nullify the Colorado and Washington laws. U.S. Attorney General Eric Holder said last week he is in the last stages of reviewing the laws.
"We are urging Attorney General Holder, as he did in the case of the Arizona immigration law, to file a lawsuit challenging the Colorado and Washington laws without delay," said one of former DEA Administrators, Judge Robert Bonner, in the statement.
"It's not up to the U.S. Attorney General to decide that he is going to abandon the law; it is his job to enforce the law," said Peter Bensinger, another of the former DEA administrators, in an interview.
Both states are working on rules to codify how marijuana's production, processing and sale will be regulated after voters in the states last November passed ballot measures letting adults use pot recreationally.
"It doesn't change what we're doing," said Brian Smith, spokesman for the Washington State Liquor Control Board, which is formulating pot-use rules there.
"This is an over-reach by outside entities," said Colorado state Rep. Jonathan Singer, a legalization advocate. A spokesman for Colorado Gov. John Hickenlooper said the office had no comment.
As political observers know, in nearly all other settings, folks on the right side of the aisle are typically quick to complain if and whenever either the United Nations or a federal agency tries to dictate whether and how an independent US state seeks to conduct its legal business. I sure hope, just because we are now dealing with state laws concerning the use and distribution of a plant — rather than, say, state laws concerning the use and distribution of firearms or state laws concerning the operation of the death penalty — that the folks on the right do not conveniently forget the usual states' rights mantra in opposition to UN meddling or big federal agency over-regulation of state business.
A few recent and older related posts:
- AG Holder indicates federal response to state marijuana reforms coming "soon"
- Supporting pot prohibition as divining rod pointing toward social conservatives and away from fiscal conservatives
- "What the Gun Lobby and the Marijuana Lobby Have in Common"
- If force to choose, would you legalize marijuana or prohibit tobacco?
- Intriguing new comments from President Obama on federal pot prohibition policy
- "California inspired — and now inspired by — other states' marijuana legalization measures"
- "Marijuana poll: Californians' support for legalizing pot at record level"
The many (impossible?) challenges of federal child pornography sentencingThe title of this post is inspired in part by the US Sentencing Commission's recent report, which highlights many of the flaws with the current child porn sentencing guidelines and set forth a number of ideas and needs for effective reform (basics here and here). But what is really driving it is this new local article reporting on a federal sentencing in Maine, headlined "‘There will be no more victims,’ judge tells man at child pornography sentencing." First, here are the basics of the sentencing story:
“There will be no more victims of Walter Mosher,” a federal judge told the 65-year-old convicted sex offender Monday in sentencing him to more than a dozen years in prison for possessing child pornography.
U.S. District Judge John Woodcock sentenced Walter A. Mosher Jr. of Hampden to 12 years and seven months behind bars. The judge also ordered him to remain on supervised release for life when he is released.
Mosher is scheduled to be sentenced Wednesday at the Penobscot Judicial Center on one count of gross sexual assault. Mosher reported to police through his attorney that he molested a boy under the age of 14 between Feb. 1, 2011 and March 1, 2012, according to the sentencing memorandum filed in federal court by his attorney, Jeffrey Silverstein of Bangor. Mosher pleaded guilty to the Class A crime Nov. 21 at the Penobscot Judicial Center.
Under the federal sentencing guidelines, Woodcock was allowed to consider Mosher’s recent guilty plea as “relevant conduct” in connection with the possession of child pornography charge, even though the victim was not depicted in the images found on Mosher’s computer. The federal judge focused on the sexual abuse of the child as he directed his comments at Mosher.
“There are some cases in this court that cry out for justice and yours is one of them,” Woodcock told Mosher shortly before sentencing him. “This was an inexplicable and hideous violation of trust. What we’ve seen today is just the tip of the iceberg of pain you have caused.” A parent of the victim told the judge that Mosher needed “to go away, and go away for a very long time.”
Mosher was required to register as a sex offender because he was convicted in 1986 in Aroostook County Superior Court in Houlton in connection with the molestation or abuse of 15 minors, according to the sentencing memorandum. Since serving 11 years on the 1986 charges, Mosher was not charged with another crime until he was indicted by a federal grand jury on March 15, 2012, according to court documents.
In an emotional statement, Mosher described in graphic detail how he was sexually abused as a child by a female relative. He said that when he committed his earlier crimes, he was going through a divorce and drinking heavily. “I am deeply ashamed and sorry for what I have done,” he told Woodcock. “I don’t know why I have done these things. I have no idea how I got to a place to do these horrible things.”
Mosher has been held without bail since his arrest the day after he was indicted. Mosher pleaded guilty to possession of child pornography in June in federal court. According to court documents, Mosher’s computer contained images of child pornography, specifically digital images and videos that were produced using minors engaged in sexually explicit conduct....
Because of his 1986 convictions, Mosher faced a minimum of 10 years in federal prison and a maximum of 20 years and a fine of up to $250,000. On the gross sexual assault charge, Mosher faces up to 30 years in state prison and a fine of up to $50,000.
Even without knowing any more that these most basic details about the defendant in this case or the particulars of his crime, it is easy to see all the tough questions facing Chief Judge Woodcock: e.g., should the defendant's federal child porn sentence here be longer (or shorter) given that he is surely soon to get a lengthy state sentence for gross sexual assault? should the defendant's recidivism at such an advanced age mean that a federal sentence now should try to ensure Mosher dies in prison, or should the sentence at least offer the defendant a glimmer of hope that he might be able to be free again in his 80s? With the facts of the criminal and the defendants criminal history so troublesome, should the defendant get much (if any) credit for pleading guilty and accepting responsibility?
I could go on and on highlighting all these challenges in this one case, but what really caught my attention when reviewing this article was these notably disparate headlines below the piece noting "similar articles":
- "New Gloucester man sentenced to 25 years on child porn charges"
- "Old Orchard Beach man gets 1 year and 1 day for possessing child porn"
In turn, a quick search for headlines from the same local Maine paper (the Bangor Daily News) revealed these additional sentencing headlines concerning the disposition of child porn charges over just the last 24 months:
- "Berwick man gets 7 years for possessing child pornography"
- "Bangor lawyer suspended from practicing gets six months for child pornography"
- "Former Newport man sentenced to 20 years in federal prison for having child pornography"
- "Fort Fairfield man sentenced to five years in federal prison for possessing child porn"
- "Sanford man gets nearly 30-year sentence on child porn charges"
- "Ex-kindergarten teacher gets 16 years on child porn charge"
- "Ex-state prosecutor sentenced to 16 years for child porn offenses"
A quick click through to a number of these article reveals that there are a number of striking parallels as well as a number of striking differences in the offenses and offenders in these cases. Nevertheless, I still find notable and telling that even in a small and seemingly homogeous federal district like Maine, here is an accounting of the number of months in prison given to 10 child pornography offenders (going from lowest to highest sentence):
6 months; 12 months; 60 months; 84 months; 151 months; 192 months; 192 months; 240 months; 300 months; 340 months
The point of my post here is not to assert or even suggest that any of these referenced sentences is right or wrong or should be higher or lower. Without spending a lot more time looking through the facts of all these cases, I think it is extremely hard to reach even a tentative conclusion about this pattern of sentencing result. But that is my main broader point: there is, of course, a pressing interest and enduring goal for everyone involved to try to determine the "right" sentence in federal child pornography cases not only in each individual case, but also across a range of cases. But, these cases all necessarily raise so many important and challenging issues, I wonder and worry if the goal to get federal child pornography sentencing "just right" is a kind of "fool's gold" that many will pursue at a great cost but ultimately with little of value to show from the pusuit.
Recent related posts:
- US Sentencing Commission releases big new report on federal child porn sentencing
- Doesn't the new USSC report necessarily rebut any appellate "presumption of reasonableness" for within-guideline child porn sentences?
March 5, 2013 in Booker in district courts, Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (26) | TrackBack
"Fearing Deluge of Litigation, Supreme Court Works the Floodgates"The title of this post is the headline of this fascinating new "Sidebar" column by Adam Liptak in today's New York Times. Here are excerpts:
February was flood season at the Supreme Court. On Feb. 20 alone, three justices used flooding as a metaphor in talking about the consequences of the court’s rulings. Justice Samuel A. Alito Jr. wrote that allowing some lawsuits from prisoners would not “prompt an unmanageable flood of litigation.” Justice Antonin Scalia countered that there was indeed a good reason to worry about “a flood of litigation.” Justice Stephen G. Breyer, in a second decision that day, said allowing the correction of plainly erroneous rulings late in the game “will not open any ‘plain error’ floodgates.”
Lawyers who argued before the court were using the same terms. On Feb. 27, one assured the justices that “we haven’t seen the floodgates opened” after a lower court allowed some kinds of class actions. The week before, another lawyer said that ruling against his position “would unleash a flood of suits by prisoners.” A lawyer on the other side responded: “If adopting a broader interpretation here would open the floodgates, the floodgates are already open, and they have been for 40 years in most of the country. And we haven’t seen a flood.”
In real life, floods are bad. But the metaphor of a flood in the context of litigation obscures more than it illuminates. If a legal theory is sound, is it a problem if it produces too much justice?
Marin K. Levy, a law professor at Duke University, has been tracking the rise of all of this talk of floods. “It’s a huge uptick,” she said. “This is clearly on their minds,” she said of the justices, “and it’s something that should give us pause.”
She found about 60 “explicit floodgates cases,” meaning cases using that term and its cousins. The first was in 1908. They reappeared in the 1940s and picked up in the 1970s. Nearly half are from 2000 or later, and 14 are from the last four terms....
In an article to be published in September in The University of Chicago Law Review, Professor Levy proposes a subtle taxonomy of floodgates arguments, approving of ones protecting executive branch officials and interpreting statutes to track Congress’s purpose. Those limits, she writes, are grounded in the separation of powers. She is also sympathetic to limits that affect the relationship between state and federal courts.
But about half of the cases are based on a more self-interested concern: the fear that federal courts will be inundated with new cases and judges may have to work too hard to keep up with them. The metaphor gained currency, Professor Levy writes, as many judges and law professors in the 1970s grew concerned that caseloads in the federal courts were becoming unmanageable. Justice Stevens said as much in a 1978 opinion, observing that appeals court judges were “struggling desperately to keep afloat in the flood of federal litigation.”
There are, to be sure, some kinds of lawsuits that are likely to be a waste of judicial time. As Justice Robert H. Jackson wrote in a 1953 concurrence, there was good reason to worry about “floods of stale, frivolous and repetitious petitions” from prisoners challenging their convictions.
“It must prejudice the occasional meritorious application to be buried in a flood of worthless ones,” he wrote. “He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search.”
Congress can certainly erect barriers against such problems, and it has. The Prison Litigation Reform Act of 1995, for instance, cut back on, in Justice Alito’s words in a 2006 opinion, “a flood of prisoner litigation in the federal courts.”
But allowing judges to close the courthouse door to a class of cases on the ground that they create too much work is, Professor Levy writes, “deeply troubling,” for two reasons. One is that judges are not particularly good at predicting the consequences of their decisions. The other is that this sort of thinking is not grounded in the law.
“Barring a true flood of tens or hundreds of thousands of cases,” she wrote, “no evident principle exists to support the court taking workload concerns into account when engaging in interpretation of the law.”
March 4, 2013
Does God care who wins when federal judges impose sentences?The silly question in the title of this post is prompted in part by last month's Sports Illustrated cover which asked "Does God Care Who Wins the SuperBowl?" Whatever your answer to that important ecumenical sports query, my version of the question above is a response today to this new local federal sentencing story from Vermont headlined "Virginia pastor credits 'the mercy of God' in custody dispute sentencing: Kenneth Miller sentenced to 27 months but released pending appeal." Here are the divine (and fascinating) particulars of a notable federal sentencing process:
A Mennonite pastor who helped a still-missing woman and her daughter flee the country — and a custody fight with the woman’s former lesbian partner — joined his supporters in song Monday evening in Burlington after learning his 27-month prison sentenced could be put on hold while he appeals his conviction.
Kenneth Miller was still wearing his prison jumpsuit when he left federal court in Burlington and met a crowd of about 100 supporters who came to Vermont from as far away as his home state of Virginia. “I am grateful for the mercy of God,” Miller said before joining his supporters in singing a hymn, “Our God, He is alive.”
During a two-hour sentencing hearing, Miller told U.S. District Court Judge William Sessions III he couldn’t promise he would not again aid in international parental kidnapping. Last summer a jury found him guilty of helping Lisa Miller and her now-10-year-old daughter, Isabella, travel from Virginia to the Canadian border and then on to Nicaragua via the Toronto airport. Lisa Miller and Isabella are still believed to be hiding in Central America. They are not related to the pastor.
Kenneth Miller, 47, of Stuarts Draft, Va., said he acted out of conscience and a religious belief that finds the idea of same-sex marriage offensive after a desperate Lisa Miller came to him in September 2009. Miller said the woman pleaded for help escaping a court order that Isabella spend time with her former partner, Janet Jenkins, of Fair Haven, Vt....
Sessions said he admired Miller for the depth of his convictions, but he could not allow him to choose God’s law over his country’s, saying the pastor had helped deprive Isabella of Jenkins’ love. “The horror of this cannot be overstated,” Sessions said.
Assistant U.S. Attorney Christina Nolan said Kenneth Miller’s actions were not those of someone full of love and compassion for other people — particularly Jenkins — as he and others have claimed. “He didn’t see her as a human being. He saw her primarily as a homosexual associated with the powers of darkness,” Nolan said.
Lisa Miller and Jenkins were joined in a Vermont civil union in 2000, and Isabella was born to Lisa in 2002. The couple split in 2003, and a Vermont family court gave custody of Isabella to Lisa Miller with regular visitation for Jenkins. Lisa Miller then returned to Virginia, became a conservative Christian, renounced homosexuality and sought full custody. Two months after Lisa Miller and Isabella fled the country, a Vermont family court judge transferred custody of the girl to Jenkins, who was not in court Monday.
Kenneth Miller had been jailed since Jan. 24 for contempt of court after refusing repeated orders to testify before a federal grand jury seeking information about others involved in the flight of Lisa Miller and Isabella. At the end of Monday’s hearing, Sessions released him from the contempt citation saying additional incarceration was unlikely to compel him to testify.
Kenneth Miller’s attorneys are planning to appeal. They argued the law that allowed Kenneth Miller to be tried in Vermont for a crime that neither occurred nor was planned in the state was likely to be overturned on appeal. Sessions, the judge, said the appeals process could take years.
A notable first echo from Ohio's notable new early release lawThis local AP article, headlined "Five should be freed, state prisons chief says," reaffirms my belief that Ohio is now a dynamic and important "state to watch" concerning modern sentencing law and practices. Here are the interesting details from this latest story in the important Buckeye chapter of modern sentencing reform:
Ohio’s prison chief has recommended the release of five inmates who have served 80 percent of their time. The recommendations, if approved, would mark the first use of a 2011 law meant to help reduce the state’s inmate population and save the state money.
Director Gary Mohr of the Department of Rehabilitation and Correction cited several reasons, including good behavior, for his recommendations in letters to judges, who have the final say. He also considered information from prison employees who are go-betweens with the prisons, the courts and the inmates.
The five inmates — two women and three men — are serving time mostly for low-level felonies, although one was convicted of aggravated vehicular homicide.
Prisons spokeswoman JoEllen Smith said the 80 percent release option encourages inmates to act responsibly in prison “and is significant in our effort to better communicate with courts and assist the eligible, suitable offenders in having a successful transition back into our communities.”
The 2011 law aims to save the state millions of dollars by shrinking the number of inmates and reducing the number of offenders who might return to prison as repeat offenders. By several measures, the law and other efforts are working.
Ohio’s prison population remains under 50,000 inmates, a level not seen since 2007. Also, the state reported on Feb. 22 that the number of inmates returning to Ohio prisons upon release has hit a new low, a trend officials attribute to a focus on keeping inmates in the community and the involvement of groups that work with inmates before their release.
Other factors Mohr considered in making his recommendations included little or no rule-breaking during incarceration; a history of participating in prison programs; and development of a plan for dealing with the release.
Inmate Mary Clinkscales of Summit County, sentenced to a seven-year prison term in 2007 for possession of drugs, is a prime candidate for release because of her activities in prison, according to a Feb. 15 letter from a go-between, called a justice reinvestment officer.
Clinkscales had just one rule infraction while imprisoned — wearing shorts that were not part of her state-issued clothing — said Suzanne Brooks, the agency’s Cleveland-area justice reinvestment officer.
Clinkscales has attended literacy, anger-management and family-values skills classes, worked on community service projects making hats and scarves and is not a gang member, Brooks said. All these factors, plus no previous prison sentence, make her a suitable candidate for release, Brooks said.
I am tempted at this point to jokingly suggest that it would make sense to expect that someone named "Clickscales" would at some point get sent to prison for a drug offense. But this new story about prison officials actually actively advocating for the early release of a few prisoners is too serious and important to make the basis of jokes about surnames. And speaking of serious and important, the five prisoners likely to get released first via this Ohio early release program ought to seriously understand how very important it will be for other prisoners and so many others throughout Ohio for them to fulfil the faith that Ohio's prison chief has in them.
There are lots of potential reactions and commentary justified by this story and the operationalization of the 2011 Ohio law meant to help reduce the state's inmate population and save the state money. For now, I want to focus on an important political reality in this Ohio "smart on crime" development: both houses of the Ohio General Assembly and the executive branch of Ohio were all in firm Republican control when Ohio enacted the broad-based sentencing reform that is now enabling at least five offenders to likely obtain early release from their prison sentences. For this reason (and others), I think prison reform is right now much better understood, at least at the state level, as a matter of avoiding the (budget) red rather than a matter of political debate among the blue and red sides of the aisle.
March 4, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (13) | TrackBack
"Constitutional Line Drawing at the Intersection of Childhood and Crime"The title of this post is the title of this intriguing looking new paper now available via SSRN. Here is the abstract:
Three cases have arisen in the first seven years of the Roberts Court in which concepts of childhood have played a key role. First came Graham v. Florida, a 2010 case in which the Court held that the Eighth Amendment's Cruel and Unusual Punishment's Clause prohibited sentencing of juveniles to life without parole for non-homicide offenses. Next was J.D.B. v. North Carolina, a 2011 case in which the Court held that a juvenile's age is a relevant consideration when determining whether a reasonable person would believe he was in custody for Miranda purposes. Finally, the Court decided Miller v. Alabama, a 2012 case in which the Court held that the mandatory imposition of life without parole in cases where juveniles were convicted of homicide was cruel and unusual punishment because it precluded consideration of age and its attendant consequences.
Though at first glance these three cases appear consistent -- they each result in some degree of enhanced constitutional protection for juveniles -- a closer look reveals significant jurisprudential tension because the opinions are riddled with contradictions. This Article explores those tensions and the need to resolve them, focusing in particular on two major line-drawing problems that have emerged in the juvenile cases. The first is inherent to but largely ignored in the cases: whether and where to draw the line between childhood and adulthood. The second line is judicially manufactured: the line between homicide and non-homicide offenses. The Article describes and critiques the Court's line drawing and offers proposed solutions to remedy flaws in the Court's reasoning.
March 4, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
"The left’s austerity strategy for the death penalty"The title of this post is the headline of this new MSNBC piece, which reports on a segment that ran on that network yesterday. Here are highlights:
In an age when trimming budgets and reducing deficits has become politically popular, some liberals are brewing a new strategy on old issues. Democrats and left-leaning groups are increasingly trying to use austerity arguments to pass their progressive agendas.
Maryland’s Democratic Gov. Martin O’Malley has long sought to have the death penalty abolished in his state. As a Roman Catholic, he has used a moral argument against the death penalty in the past. But now he is emphasizing the financial benefits of making the maximum sentence a life in prison without parole...
Rather than funnel all of their focus into moral and social arguments, the bill’s supporters have been making their point partly in economic terms. The cost of prosecuting a death row case in Maryland can be as much as three times what it costs for a case seeking a life sentence without parole.
A study by the Urban Institute in 2008 found that the average cost to taxpayers for one death sentence was $3 million, about $1.9 million more than it cost for a case when the death penalty wasn’t sought. These numbers include the criminal investigation, trial costs, appeals, and incarceration....
For elected officials who can’t be tough enough on crime, NYU law professor Bryan Stevenson said, “you need a narrative that allows people to retreat from that and cost is just a very effective one.”
On Sunday’s Up with Chris Hayes, Stevenson also addressed the fears of many voters that abolishing capital punishment could lead to a higher crime rate, explaining that the economic arguments could also benefit public safety:
“Maryland’s bill actually will give money and resources to the families of people who’ve lost loved ones. California’s bill was actually directly aimed at helping to solve the 34% of homicides that aren’t resolved in an arrest, 46% of rapes that aren’t resolved in an arrest, mostly in poor and minority communities. I think if you’re concerned about public safety, these economic arguments actually make links that we have to make.”
If it passes, Maryland will be the sixth state in six years to abolish the death penalty, after New Jersey, New Mexico, New York, Illinois, and Connecticut....
While they acknowledged the financial advantages, the Up with Chris Hayes panelists emphasized that decades of talking about the death penalty’s moral and social implications cannot be ignored.
“If the economic argument is the one that tips the scales, then I need not worry that we haven’t couched the debate enough in moral terms,” said Mattea Kramer of the National Priorities Project. “You keep your eyes on the prize.” Stevenson added, “I don’t actually think that the economic arguments would be effective today if we hadn’t shown over the last 15 years that we’re putting a lot of innocent people on death row.”
March 3, 2013
Drug courts come to federal system (and New York Times' front page)Regular readers know about the drug courts movement and its (varied but still very important) success as an alternative means to process certain drug offenders through the modern criminal justice system. But, thanks to this big new front-page article in today's New York Times, which is headlined "Outside Box, Federal Judges Offer Addicts a Free Path," the notable new story of drug court development in the federal criminal justice system is due to get a lot more attention. Here are extended passages from the Gray Lady's important coverage of this important federal sentencing story:
Federal judges around the country are teaming up with prosecutors to create special treatment programs for drug-addicted defendants who would otherwise face significant prison time, an effort intended to sidestep drug laws widely seen as inflexible and overly punitive.
The Justice Department has tentatively embraced the new approach, allowing United States attorneys to reduce or even dismiss charges in some drug cases. The effort follows decades of success for “drug courts” at the state level, which legal experts have long cited as a less expensive and more effective alternative to prison for dealing with many low-level repeat offenders.
But it is striking that the model is spreading at the federal level, where judges have increasingly pushed back against rules that restrict their ability to make their own determination of appropriate sentences. So far, federal judges have instituted programs in California, Connecticut, Illinois, New Hampshire, New York, South Carolina, Virginia and Washington. About 400 defendants have been involved nationwide.
In Federal District Court in Brooklyn on Thursday, Judge John Gleeson issued an opinion praising the new approach as a way to address swelling prison costs and disproportionate sentences for drug trafficking. “Presentence programs like ours and those in other districts mean that a growing number of courts are no longer reflexively sentencing federal defendants who do not belong in prison to the costly prison terms recommended by the sentencing guidelines,” Judge Gleeson wrote.
The opinion came a year after Judge Gleeson, with the federal agency known as Pretrial Services, started a program that made achieving sobriety an incentive for drug-addicted defendants to avoid prison....
The new approach is being prompted in part by the Obama administration, which previously supported legislation that scaled back sentences for crimes involving crack cocaine. The Justice Department has supported additional changes to the federal sentencing guidelines to permit the use of drug or mental health treatment as an alternative to incarceration for certain low-level offenders and changed its own policies to make those options more available.
“We recognize that imprisonment alone is not a complete strategy for reducing crime,” James M. Cole, the deputy attorney general, said in a statement. “Drug courts, re-entry courts and other related programs along with enforcement are all part of the solution.”...
The development of drug courts may meet resistance from some Republicans in Congress. “It is important that courts give deference to Congressional authority over sentencing,” Representative F. James Sensenbrenner Jr., Republican of Wisconsin, a member and former chairman of the Judiciary Committee, said in a statement. He said sentencing should not depend “on what judge happens to decide the case or what judicial circuit the defendant happens to be in.”
At the state level, pretrial drug courts have benefited from bipartisan support, with liberals supporting the programs as more focused on rehabilitation, and conservatives supporting them as a way to cut spending. Under the model being used in state and federal courts, defendants must accept responsibility for their crimes and agree to receive drug treatment and other social services and attend regular meetings with judges who monitor their progress. In return for successful participation, they receive a reduced sentence or no jail time at all. If they fail, they are sent to prison....
In interviews, the federal judges who run the other programs pointed to a mix of reasons for their involvement. Judge Ricardo S. Martinez ran a state drug court in Seattle before he was appointed to the federal bench. “People that have a serious addiction, you can put them in custody, but the minute you put them back in the community, they go back to the same thing and lo and behold you see them again,” Judge Martinez said in an interview.
Some of the most pointed criticism of the status quo has come from Judge Gleeson, a former federal prosecutor. The drug court he helped set up is open to defendants who committed a range of nonviolent crimes, like fraud and selling prescription pills, and whose addictions fueled their actions.
In a 35-page opinion he issued this week, he criticized the Justice Department for charging defendants with drug offenses that carry mandatory minimum sentences, urged the Sentencing Commission to reduce the guideline range for many drug offenses and called for more programs that divert defendants from prison time. The opinion chronicled the case of three graduates of the drug court....
Loretta E. Lynch, the United States attorney in Brooklyn, said she backed the program because drug courts elsewhere had lowered recidivism rates. “Our overall strategy of law enforcement and crime prevention isn’t just incarceration,” Ms. Lynch said.
At a sentencing hearing for Ms. Leitch last month, a prosecutor vacated her guilty plea and agreed to dismiss the charges if she did not use drugs or get arrested for 18 months. After the hearing, Judge Gleeson offered some encouraging words for the defendant, and then a hug. “I don’t know them as just the judge,” Ms. Leitch said later. “People see judges as the bad guy. They get deeper. They get to know who you are.”
Judge Gleeson's 35-page opinion in US v. Leitch et al, 11-CR-00609 (EDNY Feb. 28, 2013), not only merits NY Times front-oage coverage, but also a read in full. I have uploaded that opinion here.
Some older and newer related posts about drug court programs and research:
- Talk of drug courts, but not major policy changes, in drug war from Obama team
- Important new NACDL report critical of modern drug court movement
- New report on drug courts from The Sentencing Project
- "Rethinking Drug Courts: Restorative Justice as a Response to Racial Injustice"
- NJ commission endorsing expanding drug courts
- A religious pitch for drug courts
- New JPI report expressing concerns about drug courts and net widening
- New research shows positive outcomes from drug court programs
March 3, 2013 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack
"Should defendants’ age, health issues be sentencing factors?"The question in the title of this post is the sub-heading of this notable article appearing in my own local Columbus Dispatch, which carries the main headline "Seniors argue for less time in prison." Here are excerpts:
Is prison more of a punishment if a defendant is 50 rather than 20? Some defense attorneys are debating that issue in federal court as they seek to minimize prison sentences for defendants 50 or older.
“We’re seeing it a lot,” Assistant U.S. Attorney Deborah A. Solove said. The issue is at the heart of an unprecedented second appeal that Solove has filed over the prison sentence imposed by U.S. District Judge James L. Graham on a Knox County man, Richard Bistline.
Graham originally sentenced Bistline, 70, of Mount Vernon, in 2010. The sentence, for possessing child pornography, was one day in prison plus 10 years of supervised probation. Solove appealed, saying the sentence was too lenient. The 6th U.S. Circuit Court of Appeals ordered Graham to resentence Bistline, saying the original penalty “does not reflect the seriousness of his offense.”
In January, Graham ordered the same sentence but added three years of home confinement as part of Bistline’s probation. The judge said he didn’t order more prison time because he was concerned about Bistline’s age and health problems, which included two strokes and a heart attack a year ago. He questioned whether Bistline would get adequate medical care in prison.
Solove, who prosecuted the case, had asked for a five-year prison term, which was a bit less than is called for in the sentencing guidelines determined by the court. Graham maintained that would be “a life sentence, or more accurately, a death sentence,” for Bistline.
Graham said last week that judges can consider age and infirmity in sentencing, and he does that if a defendant is not a danger to the public. “I was completely satisfied in this case that he was not. Your job as a judge is to figure out which one of these defendants are the really bad guys you need to put away.”
In another case, Laura E. Byrum, an assistant federal public defender, is arguing that her 64-year-old client should get a prison sentence that’s shorter than the guidelines call for, in part because of his age and health problems. Robert W. Burke of 767 Bracken Court, Worthington, pleaded guilty to one count of receiving child pornography, and the guidelines call for a 20-year prison term.
Byrum has asked for a 10-year prison term followed by 20 years of supervised release. She argues that the life expectancy of a man Burke’s age is 18 years, and his is likely shorter because he has skin cancer and chronic obstructive pulmonary disease. Twenty years is a “virtual death sentence,” she wrote in her sentencing memorandum.
Assistant U.S. Attorney Heather Hill said the federal prison system can handle most of the typical health problems associated with aging. “Going to prison isn’t easy for anyone, but that is the consequence of breaking the law,” she said. “We’re not sure that being nearer to the grave gives you license to be a criminal.”
According to a 2012 report by Human Rights Watch, state and federal prisons held 124,440 prisoners who were 55 or older in 2010. That was a 282 percent increase from 1995, at a time when the total number of prisoners rose by 42 percent.
Prior related posts:
- Sixth Circuit finds substantively unreasonable a one-day of lock-up for child porn downloading
- District Judge at resentencing continues to resist federal child porn guidelines even after Sixth Circuit reversal