April 22, 2013
Law and Contemporary Problems devotes March 2013 issue to sentencing reform around the worldI am so very pleased to see that available on line here is the full March 2013 issue of the journal Law and Contemporary Problems, which is devoted to providing a "Global Perspective on Sentencing Reforms." The issue has a dozen articles, some of which are focused on state sentencing reforms, some of which are focused on federal sentencing reforms, and some of which are focused on sentencing reforms in the UK and Germany and elsewhere. And all of the article look like must reads for sentencing geeks like me. The Foreward to the Issue is authored by by Professor Oren Gazal-Ayal of the University of Haifa, and here are excerpts from the start and end of this introduction:
The articles published in this issue of Law and Contemporary Problems examine the effects of different sentencing reforms across the world. While the effects of sentencing reforms in the United States have been studied extensively, this is the first symposium that examines the effects of sentencing guidelines and alternative policies in a number of western legal systems from a comparative perspective. This issue focuses on how different sentencing policies affect prison population rates, sentence disparity, and the balance of power between the judiciary and prosecutors, while also assessing how sentencing policies respond to temporary punitive surges and moral panics.
The effects of sentencing guidelines are highly contested and debated among scholars. As a result, there are a number of outstanding questions regarding the actual effects of such guidelines. For instance, do sentencing guidelines transfer sentencing powers from the judiciary to prosecutors? Should the guidelines bear some of the responsibility for the surge in prison population in the United States? Has the lack of guidelines helped Germany constrain its prison population? Do sentencing guidelines help mitigate the effects of punitive surge, or, on the other hand, do they facilitate the punitive effect of moral panics? Do guidelines effect racial and ethnic disparity in sentencing? And how should guidelines be structured?...
The articles in this issue are the out come of a conference on sentencing reform that was held at the University of Haifa, Faculty of Law in February 2011. The conference and this issue address the effects of sentencing reforms from a global perspective, relying mainly on empirical research. The result is, as in most such attempts, incomplete. But we did come closer to answering some of the pressing questions — though only to find out that many new questions hide behind the answers to the old ones. It seems that sentencing, a topic that has been the focus of academic debate for centuries, will continue to attract this much needed attention for centuries to come.
Does Boston bombing provide still more support for my federal-only death penalty perspective?
As long-time readers know, I like to describe myself a "death-penalty agnostic" concerning the theoretical and empirical arguments that traditionally surround the the criminal punishment of death. But while I have long been uncertain about the "meta" arguments for and against capital punishment, as a matter of modern US policy and procedures I have a firm and distinctive view: given (1) persistent public/democratic support for death as a possible punishment for the "worst of the worst," and given (2) persistent evidence that states struggle in lots of ways for lots of reasons with the fair and effective administration of capital punishment, I believe that (1+2=3) as a policy and practical matter we ought to consider and embrace an exclusively federal death penalty.
Regular readers have seen and surely remember various prior post in which I have talked through this idea a bit, and I have linked some of these posts below. But, as the title of this post is meant to highlight, I think the soundness and wisdom of my distinctive view on the best modern way to administer capital punishment in the United States is now on full display in the wake of the Boston bombings.
Massachusetts, of course, does not have death as an available punishment. And yet, I have already seen reports of many local and state officials (not to mention Massachusetts citizens) who now say they are open to (if not eager to) have the bombing suspect(s) prosecuted in federal court in part because federal law includes the possibility of the death penalty. Moreover, there is every reason to view terror bombings like these, whether or not they have direct international connections and implications, as the kinds of crimes that ought to be investigated and prosecuted primarily by national authorities (assisted, of course, by state and local official and agents).
Stated in slightly different terms and with the events in Boston now making these ideas especially salient and timely, I believe that essentially by definition in our modern globally-wired and national-media-saturated American society (1) every potential "worst of the worst" murder is of national (and not just local) concern, and (2) every potential "worst of the worst" murder merits the potential involvement of federal investigators, and (3) federal authorities have constitutional and practical reasons for wanting or needing to be the primary "deciders" concerning the investigation and prosecution of every potential "worst of the worst" murder, and (4) state and local officials typically will welcome being able to "federalize" any potential "worst of the worst" murder, and thus (1+2+3+4=5) we should just make death a punishment only available at the federal level so that the feds know they can and should get involved if (and only when?) federal interests and/or the value of cooperative federalism are implicated by any potential "worst of the worst" murder.
Lots of (mostly older) related posts on the federal death penalty:
- The federalization of the death penalty
- More support for an exclusively federal death penalty
- Context-free ruminations on the federal death penalty
- Debating the death penalty as bargaining chip
- Research on capital punishment's impact on plea deals
- Another example of the death penalty as an effective plea bargaining tool
- Great new (though still dated) examination of the death penalty and plea bargaining
- A poster child for the (federal) death penalty?
- The federal law gap in the NJ death penalty report
- The federal death penalty in America's paradise
- The federal death penalty in NY and elsewhere
- Ashcroft's death penalty "legacy"
- Wondering about the state and fate of the federal death penalty
- "Cruel and Unusual Federal Punishments"
- Split Sixth Circuit reverses federal death sentence on interesting grounds
- "The Racial Geography of the Federal Death Penalty"
- Federal prosecutor in Western NY (wisely?) recommending lots of capital prosecutions
- Making the case for the use of the federal death penalty
- Notable commentary on "Christopher Dorner and the California Death Penalty"
UPDATE: This new DOJ press release reports on the initial charges brought against the surviving Boston bomber. Here is how the release starts:
Attorney General Eric Holder announced today that Dzhokhar A. Tsarnaev, 19, a U.S. citizen and resident of Cambridge, Mass., has been charged with using a weapon of mass destruction against persons and property at the Boston Marathon on April 15, 2013, resulting in the death of three people and injuries to more than 200 people.
In a criminal complaint unsealed today in U.S. District Court for the District of Massachusetts, Tsarnaev is specifically charged with one count of using and conspiring to use a weapon of mass destruction (namely, an improvised explosive device or IED) against persons and property within the United States resulting in death, and one count of malicious destruction of property by means of an explosive device resulting in death. The statutory charges authorize a penalty, upon conviction, of death or imprisonment for life or any term of years. Tsarnaev had his initial court appearance today from his hospital room.
Notable civil rights action victory for Iowa sex offenders subject to civil confinement
Because sex offenders rarely get court victories concerning impositions on their civil rights, I found noteworthy today's panel ruling in the Eighth Circuit in Arnzen v. Palmer, No. 12-3634 (8th Cir. April 2013) (available here). Here is how the opinion starts:
Patients at the Iowa Civil Commitment Unit for Sex Offenders (CCUSO) filed a complaint under 42 U.S.C. § 1983 challenging the placement of video cameras in CCUSO restrooms, and moved for a preliminary injunction to stop their use. The district court denied the motion as to cameras in the "dormitory style restrooms" (restrooms with multiple toilets, showers and sinks) but granted a preliminary injunction ordering that cameras in the "traditional style bathrooms" (bathrooms with a single toilet, sink, and shower) be pointed at the ceiling or covered with a lens cap. The administrators of CCUSO appeal and we affirm.
"Defensible Disenfranchisement"The title of this post is the title of this newly posted article by Mary Sigler now available via SSRN. Here is the abstract:
As many commentators have noted, the practice of felon disenfranchisement — denying the right to vote to some or all of those convicted of a felony — is widespread and familiar, but, at least in the modern context, also short of defenders. Indeed, apart from a handful of vocal public officials, a case for disenfranchisement is rarely articulated at all. Instead, critics have occupied the field largely unchallenged, arguing that felon disenfranchisement is illiberal and undemocratic, counterproductive, racist, and, in the United States, unconstitutional.
Against these claims, this paper outlines a form of felon disenfranchisement that is consistent with liberal-democratic values. In particular, I argue that felon disenfranchisement is best conceptualized not as a form or aspect of punishment but as a means of regulating electoral eligibility. On this view, felons render themselves liable to disenfranchisement because they have violated the civic trust that makes liberal democracy possible. Although the long history of disenfranchisement features extreme forms of exclusion and reflects a range of odious and unconvincing rationales, a more defensible version, grounded in the liberal and republican values of the Anglo-American tradition, would apply to a narrower range of offenders and include a meaningful opportunity for restoration. In this way, the temporary exclusion of serious offenders from the electorate has the potential to affirm, rather than betray, our commitment to liberal-democratic community.
Controlled Substances # 3: Measuring Culpability by Measuring Drugs?
Alex Kreit, guest-blogging on his new casebook, Controlled Substances: Crime, Regulation, and Policy (Carolina 2013):
The drug sentencing chapter in my casebook involved a bit of a balancing act. Students need to have some understanding of foundational sentencing principles in order to make sense of the sentencing problems specific to drugs. But, of course, there is a risk of wading too far into a subject as rich and complex as sentencing and going off-track.
Ultimately, I decided to keep the focus on drug sentencing issues as much as possible. I begin the chapter with a few pieces to contextualize modern sentencing practice, without getting into too many of the specifics. (I should add that one of the lead items in this section is an excerpt from Doug Berman’s excellent Reconceptualizing Sentencing, 2005 University of Chicago Legal Forum 1.) From there, the chapter moves right into the material drug sentencing.
Drug sentencing poses particularly difficult grading problems. For crimes like murder or robbery, the essence of what makes the conduct wrongful is easy to grasp. There may be disagreement about how to differentiate more and less serious homicides, for example, but the contours of the debate tend to present themselves more naturally. Few would disagree that a person who kills “recklessly” should typically receive a lower sentence than someone who kills “intentionally” and so on.
I believe there is much less agreement about what it is that makes drug crimes fundamentally wrongful. Is it the quantity of drugs involved? The role the defendant played in the specific offense? The defendant’s motive for becoming involved in drugs (for example, should a drug courier who is an addict be sentenced differently from one who is not)? The defendant’s overall position in the drug enterprise (to the extent this can ever be pinpointed)? (The argument that drug crimes are “victimless” and therefore not blameworthy at all is considered elsewhere in the casebook.)
Federal drug laws, and the laws of many states, have answered this problem by focusing largely on drug type and quantity. The chapter begins with materials that look at this phenomenon. Students will see the relationship between drug quantity and determinate sentencing laws. Determinate sentencing requires measurables to work effectively and drug type and quantity are two of the easiest things to measure. Certainly, weighing drugs is much easier than, for example, trying to define and prove someone guilty of being a “drug kingpin.” But, is drug quantity really an accurate measure of culpability? This is a theme that runs throughout the chapter with cases that continue to ask students to consider what factors should drive drug sentences.
Students also confront a number of practice-oriented problems. United States v. Hickman, 626 F.3d 756 (4th Cir. 2010), for example, centers on a drug conspiracy quantity calculation. The conspiracy was not sprawling by any means. It involved just a few discrete transactions, planned transactions, and confiscated drug amounts. But putting all of the numbers together to reach a quantity still proves to be quite a chore. Hickman displays some of the methods courts use to calculate drug quantity in a conspiracy.
Drug sentencing also provides a great vehicle for thinking about prosecutorial discretion. The issue comes up throughout the chapter, in cases on providing substantial assistance, drug sentencing and the Eighth Amendment, and the crack-powder sentencing disparity. Toward the end of the chapter, prosecutorial discretion becomes the focus in a section devoted to the issue.
The central case in this section is the 2012 decision, United States v. Dossie , which was almost released too late to make it into the book. I’m very glad I was able to include it. In Dossie, Judge Gleeson, urges the Department of Justice to adopt a policy to curtail the reserve mandatory minimum sentences for only a small subset of offenders. The decision is a great one for drawing students into a discussion about prosecutorial discretion. Dossie’s discussion of mandatory minimums and drug quantity also ties together a number of different points from the chapter.
Prior post in series:
- Professor Kreit guest-blogging on "Controlled Substances: Crime, Regulation, and Policy"
- Controlled Substances # 1: Teaching Drug Possession
- Controlled Substances # 2: Identifying the Kingpin: Easier Said than Done
April 21, 2013
Sixth Circuit panel finds reasonable 30-day contempt sentence for courtroom cell phone use by observerThe sentencing component of this local Ohio article caught my attention based on the headline "Tweeting and texting earns Cleveland man contempt of court charge, 30 days in jail." Here are the basics:
Cell phones are routinely used in classrooms and bathrooms — sometimes even in churches. But not in federal courtrooms, where all electronic devices are banned. But that didn’t stop Maurtez Prince, 22, of Cleveland, from trying to sneak in a few tweets and texts last year during a buddy’s sentencing hearing at the U.S. District Courthouse in Akron.
Prince will be able to contemplate his crime from behind jail bars, where he will spend 30 days for contempt of court.
On May 31, the day of the friend’s sentencing, an assistant U.S. marshal spotted Prince using his cell phone in the courtroom and ordered him to turn it off, according to court documents. Later, the marshal again caught Prince texting and confiscated the phone.
Then, when Prince went to reclaim his phone, the marshal pointed out the three signs outside the courtroom banning cell phones and any cameras or recording devices, the court documents state. That’s when Prince admitted having photographed his friend with the phone.
When U.S. District Judge John Adams heard about the incident he ordered Prince to appear before him and explain why he shouldn’t be held in contempt. Prince argued that he had not deliberately defied a court order against cell phones or taking photographs, his lawyer said. He claimed he hadn’t seen the signs, and had misunderstood the marshal, believing he simply had to silence his phone. "Mr. Prince was very apologetic to the judge and the marshal for what he did," said Assistant Federal Public Defender Edward Bryan. "He wasn’t cocky at all. It was his first time in federal court and he didn’t understand the seriousness of his actions."
But Adams was not persuaded and found Prince guilty, stating that "the most troubling part" of the crime was that Prince had continued using his phone after he had been ordered to stop. Adams sentenced Prince to 30 days in jail, but allowed him to remain free pending an appeal.
On Friday, a three-judge panel from the 6th U.S. Circuit Court of Appeals in Cincinnati released a six-page opinion affirming Adams’s sentence. Judge Deborah Cook wrote that Prince demonstrated "willful disobedience" and that "ample evidence supports the district court’s contempt finding."
A sentence of a month in jail for use of a cell phone in a courtroom struck me as quite severe, but the unpublished Sixth Circuit panel opinion in US v. Prince, No. 12-3789 (6th Cir. April 19, 2013) (available here), suggests to me there may be a lot more to the story. Specifically, the panel opinion highlights that Prince has a significant criminal history and that he may have been doing something quite nefarious when seeking to take pictures and send texts during another's federal sentencing proceedings. In other words, after reading the panel opinion in Prince, I was less troubled by the decision to sentence this defendant to a month in lock-up for his contempt of court.
But I remain curious and uncertain as to whether there are perhaps some First Amendment implications here given that the courtroom Prince was in was not sealed and that sentencings are generally to be public proceedings. I presume the First Amendment would generally preclude a courtroom spectator from being punished for writing/reporting on-line (say on a blog) about a public federal sentencing while that spectator has moved into the hallways of a public courthouse. Should I just view the courtroom ban/punishment here a proper time, place, manner restriction on the First Amendment, or do others agree there might be some important constitutional issues here?
April 21, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Technocorrections, Who Sentences? | Permalink | Comments (8) | TrackBack
Lots of death penalty headlines in wake of capture of one Boston bomber
Just as has taken place on this blog (via comments to this post), there is now lots and lots of media buzzing about seeking the death penalty for surviving boston bomber Dzhokar Tsarnaev. Here are some of the headlines and stories from various sources that caught my eye via Google news this morning:
Do recent California prison reforms demonstrate Plata ruling was a success or a failure?There was lots of debate, both within the Justices' opinions and in the outside punditry, about whether and why the Supreme Court was wise or foolish to uphold in its 2011 Plata ruling a federal judicial panel's "prisoner release order" based on California's dismal record in running its overcrowded prisons. Now, nearly two years later, this article from today's New York Times prompts the question in the title of this post. The article is headlined "California Tries to Regain Fuller Control of Prisons," and here are excerpts:
On the sprawling grounds of the state prison, built here in 1955, a new three-story, $24 million treatment center for mentally ill inmates stands out because of its freshly painted walls and rooftop solar panels. Inside, on a recent morning, psychologists and social workers were leading group therapy sessions for inmates in large, brightly lighted rooms while individual meetings were being held in smaller offices.
By all accounts, the opening of the new wing in January, as well as that of a crisis center and a housing unit for more troubled inmates in recent years, has improved the quality of mental health care in this prison, known formally as the California Medical Facility. In the past, the group sessions were held in a housing unit’s common room and left those not participating locked in their cells, unable to socialize or watch television....
California is arguing that the building here, just west of Sacramento, part of the $1.2 billion spent on improving mental health care in the last three years, is an example of why the state should be allowed to regain fuller control over its prisons, the nation’s largest correctional system. But federal judges recently issued stinging criticisms of the state, denying its bid for greater authority in two related cases and affirming the continuing need for federal overseers to achieve a level of care required by the United States Constitution.
Gov. Jerry Brown, who has been pressing strongly for the end of federal oversight since the beginning of the year, has said that the state will appeal the two decisions. Meanwhile, Mr. Brown and other state officials have been given until early May to submit a plan to further reduce overcrowding in the state prisons or be held in contempt of court....
The judges and lawyers representing inmates said that the improvements had been made only because of federal oversight. “We know they’ve needed treatment space for 20 years,” Michael Bien, a lawyer who has long represented inmates, said of the new building here. “It’s just an example of yes, they did it — great. They did it only under compulsion of the law. It wasn’t voluntary.”
Mr. Bien was involved in a class-action lawsuit regarding mental health care filed by inmates against the state more than two decades ago. In 1995, a federal court appointed a special master to carry out reforms in mental health care, which it found inadequate at the time and in violation of the Constitution. The court ruled this month that the federal overseer was necessary to remedy continuing constitutional violations behind problems like the high suicide rate.
The state is arguing that mental health care meets or exceeds constitutional standards. It is spending $400 million a year on mental health care in its prisons, and a dozen new facilities valued at a total of $1.2 billion have been built in the past three years or are under construction....
A special three-judge federal court also denied the state’s motion to overturn an order to reduce prison overcrowding from its current level of 150 percent of capacity to 137.5 percent by the end of this year.
In 2009, the court found that adequate mental and medical health care could not be delivered because of overcrowding — which reached more than 200 percent in 2006 — and ordered the state to reduce the prison population gradually. The Supreme Court upheld the order in 2011 after the state appealed.
California has already cut its prison population by 25,000 inmates to about 120,000 by sending low-level offenders to county jails in a policy known as realignment. Mr. Beard said that sending 10,000 more inmates to county jails — the number required to reach the court-mandated goal of 137.5 percent of capacity — would overwhelm the counties. Some county officials, forced to release inmates early from increasingly packed jails, have blamed realignment for a rise in break-ins and auto thefts.
Barry Krisberg, a law professor at the University of California, Berkeley, and an expert on California’s prisons who testified in the 2011 Supreme Court case, said it was unlikely the state would succeed in its appeals because of that 2011 ruling. “He can’t win these cases,” Mr. Krisberg said, referring to the governor. “In my view, it’s nearly impossible to go to the same Supreme Court and within a year ask them the same question.”
Instead of looking only to realignment, Mr. Krisberg said, the state must consider the politically difficult option of shortening sentences for good behavior, a policy that previous governors have carried out without an increase in crime. “If they were to restore good-time credits for the people who are doing everything we’re asking of them in prison, they could get these numbers,” he said, referring to the 137.5 percent goal.