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June 29, 2013

"Exploding number of elderly prisoners strains system, taxpayers"

The title of this post is the headline of this lengthy new NBC News piece.  Here are excerpts:

Prisoners older than 55 make up the single fastest-growing segment of the U.S. prison community – a largely invisible shadow population. The number of elderly Americans doing hard time is swelling at a staggering rate and will only continue to balloon, researchers say.

An estimated 246,000 convicts above age 50 were in jail cells across the country last year, according to a June 2012 American Civil Liberties report.

By the year 2030, there will be upward of 400,000 elderly prisoners — nearly a third of the projected total penal population, said Inimai Chettiar, a director at the Brennan Center for Justice at NYU School of Law and the co-author of the ACLU report. “The number of elderly prisoners has absolutely exploded,” Chettiar said, adding that stringent sentencing policies and “overcriminalization” of historically low-priority offenses are to blame....

The expenditures associated with keeping elderly prisoners behind bars puts a significant strain on state and federal resources, with taxpayers bearing most of the burden, said David Fathi, the director of the ACLU’s National Prison Project. “Incarceration is expensive,” Fathi said. “And incarcerating the elderly is extraordinarily expensive.”

State and federal prisons spend an estimated $16 billion taxpayer dollars a year keeping elderly convicts in the clink, Fathi said. Nearly a quarter of that price tag – roughly $3 billion taxpayer dollars annually – is devoted to providing health care to sick or drying prisoners....

Although most elderly individuals are struck by poor health in their final years, prisoners are generally more predisposed to chronic medical conditions than the average person, which accounts for the great disparity in expenditures, said Tina Maschi, a Fordham University professor who has studied New Jersey’s aging prison population....

Chettiar said that certain conditions common to the elderly – from hearing loss and vision impairment to cardiac issues and dementia – are particularly common in U.S. prisons, slightly exceeding the national diagnostic average. "Prisons exacerbate the health problems that come with age," Chettiar said....

Although the ACLU's Fathi recognized that many older prisoners should not be eligible for an early reprieve, he said that a "cost-benefit analysis" of the exploding elderly prison population demands action. "We can't keep everyone locked up forever," he said.

June 29, 2013 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (13) | TrackBack

The great NYC homicide decline continues

As reported in this New York Times article, the "number of homicides on record in New York City has dropped significantly during the first half of the year — to 154 from 202 in the same period last year — surprising even police officials who have long been accustomed to trumpeting declining crime rates in the city." Here is more:

Police Commissioner Raymond W. Kelly attributed much of the drop to a new antigang strategy meant to suppress retaliatory violence among neighborhood gangs. Police officials also credited their efforts at identifying and monitoring abusive husbands whose behavior seemed poised to turn lethal.

The recent decrease in violence is all the more striking because last year the department recorded the fewest homicides since it began a reliable method of compiling crime statistics half a century ago. The police recorded 419 murders in 2012.

“By far, it was the lowest, and guess what?” Commissioner Kelly said Friday morning before going on to announce that the number of murders this year was running about 25 percent below even that record year. “In my business, in our business, this is miraculous. These are lives that are being saved.”

The relationship between the drop in murders and the department’s controversial policy of stopping, questioning and sometimes frisking people on the street was hard to immediately divine.

On the one hand, Mayor Michael R. Bloomberg and Mr. Kelly have cited the declining murder rate as a vindication of their policing strategies, which rely heavily on the stop-and-frisk tactic. On the other, stop-and-frisks have dropped off considerably in the last 15 months, suggesting that the drop in murders might have been a result of other factors.

In the first three months of 2012, police records indicate, there were 203,500 stops. But in the first three months of this year, the police recorded fewer than 100,000 stops.

Over the last two decades, the decline in murders in New York has been greater than in other parts of the country. (In the early 1990s, when Mr. Kelly spent a little more than a year as police commissioner, the first of his two stints in the job, the city was coping with about 2,000 murders annually.)...

Noting how the latest reduction of violence coincided with a diminishing number of street stops, some civil rights lawyers have grown more vocal in questioning not only the legality but also the effectiveness of stop-and-frisk tactics.

But police commanders point to what they say is the long half-life of the deterrent effect of stop-and-frisk, saying that criminals may decide to leave their guns at home because they have been stopped in the past, even if the odds of a stop have decreased in recent months. And the police say the decrease in violence has most likely led to a corresponding decrease in suspicious behavior, which results in fewer stops.

June 29, 2013 in Data on sentencing, National and State Crime Data | Permalink | Comments (5) | TrackBack

June 28, 2013

My Sixth Circuit amicus brief effort now filed explaining my Eighth Amendment FSA views in Blewett

As regular readers likely recall, a little over a month ago a split Sixth Circuit panel in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here), used equal protection principles to justify giving the new crack statutory sentencings levels of the Fair Sentencing Act retroactive effect.  In my first post about the Blewett ruling, I noted that I was unsure that a "Fifth Amendment equal protection theory provides a strong constitutional foundation" for Blewett, but I also suggested, "in the wake of the passage of the Fair Sentencing Act and the USSC's implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could and should provided a reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA." 

A couple of weeks ago, as reported in this post, the Sixth Circuit responded to the Government's en banc petition with a letter to the parties express seeking additional briefing "addressing whether the Blewetts’ punishment in this case based on a 100-to-1 ratio of crack to powder cocaine is constitutionally disproportionate in violation of the Eighth Amendment’s Cruel and Unusual Punishments Clause. "  Ever interested in sharing my perspectives in full glossy detail, I have spent the last few days finalizing an amicus brief on behalf of NACDL explaining my Eighth Amendment thinking and that brief was filed with the Sixth Circuit (and with the consent of the parties) this afternoon.

For those following the Blewett case or interested in FSA retroactivity arguments, I recommend reading my 15-page filing in full (and I have provided the full document for downloading below).  Here are a few passages that capture some of the themes to be found in the brief:

Through passage of the Fair Sentencing Act of 2010 (FSA), Congress significantly reduced the sentences mandated and recommended for all crack offenses (1) by raising by over 500% the quantity of crack triggering five- and ten-year minimum sentences, and (2) by ordering the U.S. Sentencing Commission to reduce all crack guideline sentences through emergency amendments to be promulgated “as soon as practicable.”  See Sections 2 & 8 of FSA.  As the Supreme Court has explained, this landmark legislation reflected Congress’ formal response to “the Commission and others in the law enforcement community strongly criticiz[ing] Congress’ decision to set” crack sentences so high relative to powder cocaine sentences and Congress having “specifically found in the Fair Sentencing Act that [each pre-FSA crack] sentence was unfairly long.”  Dorsey v. United States, 132 S. Ct. 2321, 2328, 2333 (2012).  In other words, passage of the FSA is a clear, bold and unmistakable legislative statement by our nation’s representatives that pre-FSA crack sentences were unnecessarily severe, unfair and excessively long.

While the text of the FSA provides the clearest objective evidence of the national consensus against the extreme pre-FSA crack sentencing provisions, federal practices, reflected in the work of other branches both before and after the FSA’s passage, confirm that the now-repealed 100-1 crack/powder cocaine sentencing scheme has long been rejected by all significant federal sentencing decision-makers....

It is not merely notable, but of great constitutional import, that virtually every federal criminal justice actor has in virtually every possible way acted in the last half-decade to demonstrate and vindicate the consensus view that pre-FSA crack sentences were excessively long.  Significantly, in recent Eighth Amendment cases such as Miller and Graham and Kennedy and Roper and Atkins, the Supreme Court found unconstitutional extreme sentences that were still being vigorously defended by the jurisdictions which imposed them.  Here, in sharp contrast, not only have the pre-FSA crack sentences imposed on the Blewetts been repealed by Congress, it is near impossible to find a single modern federal criminal justice decision-maker who will voice any substantive defense of the pre-FSA 100-1 crack sentencing structure.

Download Blewett Amicus NACDL

Related posts on Blewett:

June 28, 2013 in Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (13) | TrackBack

Oklahoma Supreme Court finds state's new sex offender registration requirements punitive and thus limited by ex post facto doctrine

As reported in this local article, headlined "Attorney says up to 3,000 registered Oklahoma sex offenders could benefit from ruling," the top court in Oklahoma handed down a major ruling this week limiting the reach of the state's sex offender registration law. Here are the basics:
[T]he court ruling said Corrections Department officials have been violating the Oklahoma Constitution by retroactively applying state sex offender laws, thereby dramatically increasing the time many convicted sex offenders must remain listed on the registry.

Rejoicing in Tuesday's ruling was convicted sex offender Brad Crawford, 58, of Oklahoma City. “It means a lot to me. It gives me freedom. It takes a monkey off my back,” said Crawford, who was convicted in 1998 in Canadian County on a charge of lewd or indecent proposals/acts to a child. “I'm tired of dealing with them and their harassment.”

Crawford lamented that being listed on the registry limits offenders from living where they want and watching their grandkids' baseball games. Registered sex offenders are not allowed to live close to schools, playgrounds or licensed child care centers....

Crawford's crime was peeking over the top of a tanning booth. He said Crawford thought he was sneaking a peek at a woman, which might have brought misdemeanor peeping Tom charges. The “woman” turned out to be a 15-year-old girl who was a day shy of her 16th birthday, so Crawford was convicted of the more severe felony charge of lewd acts with a child....

Crawford originally received a five-year suspended sentence, except for 30 days in the Canadian County jail. He also was placed on the sex offender registry for 10 years....

However, before the 10 years was over, the Oklahoma Legislature passed new laws in 2007 that created a three-tiered risk level assessment system. The law required convicted sex offenders to be placed on the sex offender registry for 15 years, 25 years, or life, depending on their assessment levels....

Jerry Massie, spokesman for the Corrections Department, said department officials are discussing the Court's ruling and expect to post something on the agency's website within the next day or two, explaining how the department will comply with the decision.

Preliminary discussions have centered on department officials reviewing the registry and removing the names of sex offenders who appear to qualify under the court's ruling. Massie said no time frame has been established for such a review, but it “might take a month or so.” At the end of the process, sex offenders who believe they were wrongfully kept on the registry could ask to have their cases reviewed, he said.

The full Oklahoma Supreme Court ruling is available at this link, and here are a few paragraphs from its closing sections:

Here we are not balancing the rights of sex offenders against the rights of their victims. We are making a determination as to whether the means chosen to protect the public have exceeded the state's valid interest in public safety and infringed on the Oklahoma constitutional prohibition against ex post facto laws.

Out of the seven Mendoza-Martinez factors we have reviewed herein, five favor a punitive effect. It is not the number that is important but the weight of these factors that leads us to our conclusion. SORA's obligations have become increasingly broad and onerous. We find there is clear proof that the effect of the retroactive application of SORA's registration is punitive and outweighs its non-punitive purpose. The retroactive extension of SORA's registration is inconsistent with the ex post facto clause in the Oklahoma Constitution.

This is not to say that Oklahoma's Sex Offender Registration Act (SORA) is unconstitutional on its face. A sex offender registry is a valid tool for the state to use for public safety. The State may impose registration duties and may publish registration information as part of its punishment of this category of defendants. The Oklahoma Constitution prohibits the addition of sanctions imposed on those who were already convicted before the legislation increasing sanctions and requirements of registration were enacted.

June 28, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack

"Five Reasons Cops Want to Legalize Marijuana"

The title of this post is the headline of this notable new article from Rolling Stone.  Here are excerpts from the start of the piece and the article's list of reasons:

Most people don't think "cops" when they think about who supports marijuana legalization. Police are, after all, the ones cuffing stoners, and law enforcement groups have a long history of lobbying against marijuana policy reform.  Many see this as a major factor in preventing the federal government from recognizing that a historic majority of Americans — 52 percent — favors legalizing weed.

But the landscape is changing fast.  Today, a growing number of cops are part of America's "marijuana majority."  Members of the non-profit group Law Enforcement Against Prohibition (LEAP) say that loosening our pot policy wouldn't necessarily condone drug use, but control it, while helping cops to achieve their ultimate goal of increasing public safety. Here are the five biggest reasons why even cops are starting to say, "Legalize It!"

1. It's about public safety....

2. Cops want to focus on crimes that hurt real victims....

3. Cops want strong relationships with the communities they serve....

4. The war on pot encourages bad — and even illegal — police practices....

5. Cops want to stop kids from abusing drugs....

June 28, 2013 in Pot Prohibition Issues, Purposes of Punishment and Sentencing | Permalink | Comments (9) | TrackBack

"Should child porn 'consumers' pay victim millions? Supreme Court to decide."

The title of this post is the headline of this new Christian Science Monitor piece discussing the Supreme Court's grant of certiorari yesterday in Paroline (noted here).  Here is how the piece gets started:

The US Supreme Court on Thursday agreed to examine whether anyone convicted of possessing images of child pornography can be required to pay a multimillion dollar restitution award to the abused child depicted in the illicit images — even if the individual had no direct contact with the child-victim.

Under the Mandatory Restitution for Sexual Exploitation of Children Statute, Congress said that a judge “shall order restitution” for the victim in a child pornography case in “the full amount of the victim’s losses.”  The law applies to those who personally engage in physical abuse of a child while producing pornographic images of the abuse. But the question in the appeal is whether the same law requires anyone who views or possesses the resulting child pornography to also pay the total amount of restitution.

The issue has arisen in hundreds of cases across the country involving possession of child pornography. The vast majority of courts have declined to require child pornography consumers (as opposed to producers) to pay the full amount of restitution.  Only one federal appeals court, the New Orleans-based Fifth US Circuit Court of Appeals, has ordered full restitution under such circumstances.

On Thursday, the Supreme Court agreed to examine a case from the Fifth Circuit and decide whether the government or the victim must be able to prove there is a causal relationship between the defendant’s conduct and harm to the victim and the victim’s claimed damages.

Recent related post:

June 28, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (9) | TrackBack

Two notable prison opinion pieces via the Washington Post

The Washington Post today has two notable opinion pieces concerning prison policies and practices.  Here are their headlines and first sentences:

June 28, 2013 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Effective discussion of "Responsible Prison Reform" at National Affairs

Eli Lehrer has this lengthy new piece in the latest issue of National Affairs, which is headlined "Responsible Prison Reform." As these excerpts from the start, middle and end of the lengthy essay suggest, the piece merits reading in full:

The evidence shows that this mass incarceration has performed more or less as advertised. By any measure, nearly every neighborhood, city, and state in the United States has become safer over the past two decades.  Crime rates in many categories are at less than half of their all-time highs.  But the costs of incarceration — both financial and societal — are also becoming increasingly clear.  The policies that were appropriate for a nation that had one of the highest crime rates among developed Western countries are not necessarily appropriate for a nation that now has one of the lowest.

Just as conservatives once led the way toward the tougher sentencing rules and other policies that increased imprisonment rates, they should lead the way in sensibly shrinking the prison population.  Reform of America's correctional system does not require abandoning a single conservative principle or returning to disproven and, frankly, disastrous policies that blamed society as a whole for crime and resulted in too few people held accountable for their misdeeds.  In fact, somewhat paradoxically, an increased emphasis on individual responsibility — which earlier prompted the move toward mass incarceration — also holds promise for a new conservative agenda for prison reform. Combined with a renewed emphasis on effective punishment, increased attention to circumstances within jailhouse walls, and a different social attitude toward ex-offenders, these sound, time-tested principles can shape the new vision for prison reform that America urgently needs....

Effective though mass incarceration is, however, the strategy is not without its costs. These costs can be measured in fiscal terms, in the failure of imprisonment to prevent certain repeat behavior, in the impact of incarceration on certain communities, and in the tension between high incarceration rates and democratic values.

The financial costs of large-scale incarceration are immense.  Housing an inmate for a year costs anywhere from $10,000 for a low-security inmate in a state where corrections officers are paid modestly to more than $100,000 for maximum-security inmates in states with high prison-guard salaries.  Nationwide, the Bureau of Justice Statistics estimated total spending on prisons and jails in 2010 to be nearly $50 billion, or nearly $500 a year for every American household.

But these costs represent only the tip of the iceberg.  Removing 2 million people from the labor force causes dislocations of all sorts.  People in prison and jail have a difficult time maintaining personal relationships.  This contributes to large numbers of children growing up in single-parent homes, or without any parents at all — which, in turn, correlates strongly with more of those children turning to crime.

The policy of large-scale incarceration has also failed to demonstrate lasting success in the area of rehabilitation.  Although recidivism has declined slightly in recent years, thanks in part to new re-entry programs, most studies show that about 40% of people who are released from prison will be re-arrested within three years.  Despite concerted efforts and millions of dollars in public spending, recidivism rates barely declined during the 2000s. Since vastly more people are serving time behind bars, this pattern of high recidivism suggests that prisons are fostering even more criminality....

Without casting aside the ethos of individual responsibility that has led to so many Americans being locked up — and without undertaking a wholesale revision of the nation's laws — the United States can and should reduce its prison population and make conditions more humane for those who serve time behind bars.  Such reforms, implemented wisely and cautiously, can mitigate the tremendous negative consequences of the explosion in the number of Americans in prison.  The United States can remain safe and, simultaneously, undo much of the social damage that results from large-scale incarceration.

Some recent and older related posts:

June 28, 2013 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Since the GOP was so troubled by ATF's work in Fast & Furious, will they now investigate drug-house stings?

Though perceived and perhaps intended as a political witch-hunt, the investigation by the GOP-led House of Representatives into the Fast & Furious program reveals some of the ugly realities of how our federal government commits crimes in order to try to go after criminals. Consequently, I hope there might be more Republican calls for hearings and investigation of ATF practices as a result of this important and huge new investigative report by USA TodayThis lengthy story in the report is headlined "ATF uses fake drugs, big bucks to snare suspects; The U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives has locked up more than 1,000 people using controversial sting operations that entice suspects to rob nonexistent drug stash houses. See how the stings work and who they target." Here are excerpts (and a video) from the USA Today report:

 

 

 

The U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, the agency in charge of enforcing the nation's gun laws, has locked up more than 1,000 people by enticing them to rob drug stash houses that did not exist. The ploy has quietly become a key part of the ATF's crime-fighting arsenal, but also a controversial one: The stings are so aggressive and costly that some prosecutors have refused to allow them. They skirt the boundaries of entrapment, and in the past decade they have left at least seven suspects dead.

The ATF has more than quadrupled its use of such drug house operations since 2003, and officials say it intends to conduct even more as it seeks to lock up the "trigger pullers" who menace some of the most dangerous parts of inner-city America. Yet the vast scale of that effort has so far remained unknown outside the U.S. Justice Department.

To gauge its extent, USA TODAY reviewed thousands of pages of court records and agency files, plus hours of undercover recordings. Those records — many of which had never been made public — tell the story of how an ATF strategy meant to target armed and violent criminals has regularly used risky and expensive undercover stings to ensnare low-level crooks who jump at the bait of a criminal windfall....

Most of the people the ATF arrested in drug-house stings last year — about 80% — already had criminal records that included at least two felony convictions before the agency targeted them. But 13% had never before been found guilty of a serious crime, and even some of those with long rap sheets had not been charged with anything that would mark them as violent.

ATF officials reject the idea that they should focus only on people with violent records. "Are we supposed to wait for him to commit a (obscenity) murder before we start to target him as a bad guy?" said Charlie Smith, the head of ATF's Special Operations Division, which is responsible for approving each sting. "Are we going to sit back and say, well, this guy doesn't have a bad record? OK, so you know, throw him back out there, let him kill somebody, then when he gets a bad record, then we're going to put him in jail?"....

[These stings] are dangerous because, if everything goes the way agents expect, they will be confronting a crew of heavily armed men amped up to commit an especially violent crime. To deal with that risk, the ATF steers the takedowns to remote places such as forest preserves or warehouses where it's easier to take suspects by surprise and where stray bullets won't endanger the public. Then it assembles a small army of federal agents and local police officers. Smith said he recalled one pre-arrest briefing with 170 officers.

Court records show ATF agents and local police officers working with them have shot at least 13 people during takedowns in drug-house stings since 2004, killing at least seven of them. Six were killed by local police officers conducting sting operations as part of an ATF task force. Most came after suspects fired at police or tried to run them down with cars....

The drug-house stings are engineered to produce long prison sentences, and they typically do precisely that. Using court records, USA TODAY identified 484 people convicted as a result of the stings, though there are almost certainly others. Two-thirds were sent to prison for more than a decade, a sentence longer than some states impose for shootings or robberies. At least 106 are serving 20-year sentences, and nine are serving life.

It's the drugs — though non-existent — that make that possible because federal law usually imposes tougher mandatory sentences for drugs than for guns. The more drugs the agents say are likely to be in the stash house, the longer the targets' sentence is likely to be. Conspiring to distribute 5 kilograms of cocaine usually carries a mandatory 10-year sentence — or 20 years if the target has already been convicted of a drug crime.

That fact has not escaped judges' notice. The ATF's stings give agents "virtually unfettered ability to inflate the amount of drugs supposedly in the house and thereby obtain a greater sentence," a federal appeals court in California said in 2010. "The ease with which the government can manipulate these factors makes us wary." Still, most courts have said tough federal sentencing laws leave them powerless to grant shorter prison terms.

To the ATF, long sentences are the point. Fifteen years "is the mark," Smith said. "You get the guy, you get him with a gun, and you can lock him up for 18 months for the gun. All you did was give this guy street creds," Smith said. "When you go in there and you stamp him out with a 15-to-life sentence, you make an impact in that community."

Because it is may be hard to generate too much public sympathy for the persons with criminal records being targeted by these ATF stings, I would be surprised if either Democrats or Republicans will start complaining anytime soon about what USA Today has uncovered about these ATF stings. But perhaps some libertarian leaning folks (paging Senator Rand Paul) will at least respond to this USA Today investigation with calls for greater transparency concerning these programs.

June 28, 2013 in Drug Offense Sentencing, Gun policy and sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

June 27, 2013

"Boston Bombing Suspect Is Indicted on 30 Counts"

The title of this post is the headline of this New York Times report on the legal news emerging today from the federal courts in Massachusetts.  Here is how the article begins:

A federal grand jury in Boston issued a 30-count indictment against Dzhokhar Tsarnaev, the surviving Boston Marathon bombing suspect, on Thursday, charging him with using a weapon of mass destruction to kill three people and injure more than 200 others, according to the Justice Department.

The grand jury also charged him in the killing of a Massachusetts Institute of Technology police officer, from whom he and his brother tried to steal a firearm, the authorities said, as they tried to elude the police after the F.B.I. released photos of them.

Mr. Tsarnaev faces life in prison or the death penalty on 17 of the charges, according to the Justice Department. He is scheduled to be arraigned on July 10.

The indictment provides the most detailed account from the authorities of the events leading up to and following the April 15 bombings. It says that Mr. Tsarnaev and his brother, Tamerlan, who was killed during a shootout with the police in Watertown, Mass., built the two explosive devices that they detonated at the finish line of the marathon using pressure cookers, explosive powder, shrapnel, adhesives and other items “designed to shred skin, shatter bone and cause extreme pain and suffering, as well as death.”

The authorities also provided a detailed account of how Mr. Tsarnaev killed his brother. The indictment says that after the brothers tried to “shoot, bomb and kill” the officers who were trying to apprehend them, Tamerlan Tsarnaev was tackled to the ground by three police officers. At that point, the indictment says, Mr. Tsarnaev drove the car that the brothers had been using “at the three police officers,” who were trying to drag his brother to safety. The car barely missed one of the officers but ran over Tamerlan, “seriously injuring him and contributing to his death.”

The US Justice Deprtment has issued this press release concerning the indictment, and the full 74-page indictment is available at this link.

Some recent prior posts:

June 27, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (10) | TrackBack

Sixth Circuit panel, again, finds substantively unreasonable a non-prison sentence child porn downloading in Bistline

As first reported in this post, a Sixth Circuit panel early last year in US v. Bistline, 665 F.3d 758 (6th Cir. 2012), ruled that is was substantively unreasonable to impose a non-prison sentence on a defendant who "pled guilty to knowingly possessing 305 images and 56 videos of child pornography on his computer" and faced a recommended guideline sentence of 63-78 months’ imprisonment."  Thereafter, just about a year later as reported in this post, U.S. District Judge James Graham resentenced this defendant to the same sentence imposed the first time around, but also ruled that the 70-year-old Richard Bistline must be confined to his Knox County home for the first three years of probation.

Today, via US v. Bistline, No. 13-3150 (6th Cir. June 27, 2013) (available here), the same Sixth Circuit panel has yet again deemed this sentence substantively unreasonable through an opinion that quotes a lot of what the panel said the first time around.  Here is how the lastest Bistline opinion concludes:

Throughout the process of imposing Bistline’s first sentence and then his second, the district court placed excessive weight on the few factors that favor a lesser sentence, while minimizing or disregarding altogether the serious factors that favor a more severe one.  The result once again was an abuse of the district court’s discretion. The sentence imposed on remand does not “reflect the seriousness of the offense”; it does not meet the retributive goal of “provid[ing] just punishment for the offense”; and it does not “afford adequate deterrence to criminal conduct[,]” among other deficiencies. 18 U.S.C. § 3553(a)(2)(A), (B).  Bistline’s sentence is substantively unreasonable.

The government also requests that we reassign the case to a different district judge for resentencing. In deciding whether to reassign a case, we consider, among other factors, “whether the original judge would reasonably be expected . . . to have substantial difficulty in putting out of his mind previously-expressed views or findings[.]”  United States v. Garcia-Robles, 640 F.3d 159, 168 (6th Cir. 2011) (first alteration in original) (quoting Bercheny v. Johnson, 633 F.2d 473, 476–77 (6th Cir 1980)).  The record in this case makes clear that the district judge would have such difficulty here.  Moreover, on remand, the district judge said the following: “If I have got to send somebody like Mr. Bistline to prison, I’m sorry, someone else will have to do it. I’m not going to do it.”  We therefore grant the government’s request to reassign the case.

Bistline’s sentence is vacated, and the case remanded for reassignment and resentencing.

At this stage, and with a reassignment now ordered, it will be interesting to see if the defendant here might seek en banc review or even certiorari in an effort to find a group of judges who might be prepared to conclude this sentence is reasonable despite being well below the calculated guideline range.

Prior related posts:

UPDATE:  Over at the Sixth Circuit Blog, Bradley Hall has this new lengthy post about the Sixth Circuit's work in Bistline which it titled "The Sixth Circuit is a Sentencing Court." It gets started this way:

In a troubling line of cases culminating in today’s decision in United States v. Bistline (Bistline II), the Sixth Circuit has engaged in "substantive reasonableness" review to impose an inflexible rule that in cases involving the possession of child pornography, district courts must impose prison sentences, regardless of whether their analysis of the 18 U.S.C. § 3553(a) factors tells them that prison would be "greater than necessary" to effectuate the statutory goals of sentencing, and regardless of the fact that Congress itself elected not to impose a mandatory minimum sentence.

The analysis in this post reinforces my sense that the defendant here ought to at least take a shot at en banc review before concluding that the Sixth Circuit has essentially mandated that he get sent to federal prison.

June 27, 2013 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack

SCOTUS grants cert on challenging child porn restitution issues that have deeply split lower courts

As reported here at SCOTUSblog, the Supreme Court wrapped up some business today via a final order list which included to criminal justice cert grants:

In a final round of orders for the Term, the Supreme Court on Thursday granted two new cases, and sent back a case on abortion rights back to an Oklahoma state court, asking for answers to specific questions on the impact of a new state law.

The Court agreed to hear, in its next Term, the cases of White v. Woodall (12-794) and Paroline v. United States (12-8561), limiting the question in that second case to a newly crafted question about restitution orders in child pornography cases. (Case page is forthcoming in Paroline.)

Woodall is one of those (always too popular) capital habeas/AEDPA cases that seems more about error-correction than changing the jurisprudential course of capital habeas review.  But Paroline has the Justices finally agreeing to take on the vexing, dynamic and very consequential issue of criminal restitution awards in federal child pornography sentencing.  Here is how the Justices' teed-up the issue in Paroline for consideration next term:

The petition for a writ of certiorari is granted limited to the following question: What, if any, causal relationship or nexus between the defendant's conduct and the victim's harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. §2259.

I will have lots and lots to say about the Paroline grant and the issues it raises in the weeksn and month ahead. But already making my head hurt is the intriguing question of just who can, will and should get a chance to present arguments in Paroline.

Obviously, Doyle Paroline, the criminal defendant who petitioned for cert and is seeking to avoid a restitution punishment, will be represented and make arguments to the Supreme Court contended he should not have to pay restitution as part of his criminal sentence for downloading child pornography. And United States, of course, is the respondent which will be represented by the Solicitor General's office and likely will make arguments for a possible restitution award as part of a federal criminal sentence for downloading child pornography.  But the real "parties of interest" in this new SCOTUS case (and hundred of other to be impacted by a ruling in Paroline) are the (many thousands of) victims of child pornography offenses.  

Thanks to the federal Crime Victims Rights Act, lawyers for the victims of child pornography offenses have often been able to play an active and vocal role in lower courts as they adress the difficult statutory interpretation issue now taken up by SCOTUS in Paroline.  Will these lawyers get a chance to argue before SCOTUS in Paroline?  Might the CVRA be read to suggest that the Supreme Court must, or at least really should feel compelled to, give one (some? many?) counsel on behalf of child porn victims a chance to present oral argument to the Court?  Should brief from lawyers or groups respresenting child porn victim be styled amicus briefs in the Supreme Court or are they really party briefs that need to be filed under the distinct rules and timeline for such filings?

June 27, 2013 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

June 26, 2013

"Texas carries out 500th execution with Kimberly McCarthy"

The title of this post is the headline of this new AP article, which gets started this way:

Texas marked a solemn moment in criminal justice Wednesday evening, executing its 500th inmate since it resumed carrying out capital punishment in 1982.  Kimberly McCarthy, who was put to death for the murder of her 71-year-old neighbor, was also the first woman executed in the U.S. in nearly three years.

McCarthy, 52, was executed for the 1997 robbery, beating and fatal stabbing of retired college psychology professor Dorothy Booth.  Booth had agreed to give McCarthy a cup of sugar before she was attacked with a butcher knife and candelabra at her home in Lancaster, about 15 miles south of Dallas.  Authorities say McCarthy cut off Booth's finger to remove her wedding ring.  It was among three slayings linked to McCarthy, a former nursing home therapist who became addicted to crack cocaine.

She was pronounced dead at 6:37 p.m. CDT, 20 minutes after Texas prison officials began administering a single lethal dose of pentobarbital.

Texas has carried out nearly 40 percent of the more than 1,300 executions in the U.S. since the Supreme Court allowed capital punishment to resume in 1976. The state's standing stems from its size as the nation's second-most populous state as well as its tradition of tough justice for killers.

June 26, 2013 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (20) | TrackBack

Defense team for Jodi Arias makes notable attack of Arizona jury's death elegibility finding

As reported in this new AP article, the lawyers for Jodi Arias in a high-profile Arizona capital case are making a notable new argument against the death penalty procedure used in her case.  Here are the basics:

Jodi Arias' attorneys have asked a judge to vacate the jury's decision in her murder trial that the 2008 killing of her boyfriend was "especially cruel," a finding that allowed the panel to consider the death penalty.

Defense attorneys argue in their motion that the definition of "especially cruel" is too vague for jurors with no legal experience to determine what makes one killing more cruel or heinous than another.

The filing also appears to challenge a landmark 2002 U.S. Supreme Court ruling that found a defendant has the right to have a jury, rather than a judge, decide on the existence of an aggravating factor that makes the defendant eligible for capital punishment.  The high court determined that allowing judges to make such findings violated a defendant's constitutional right to a trial by jury.

"Given the apparent difficulties that judges faced (prior to the ruling) in applying the statute in a uniform, consistent manner, juries are understandably even less equipped to do so," defense attorney Kirk Nurmi wrote in the motion filed late last week....

Nurmi argues the term "especially" when coupled with cruel, heinous or depraved in a murder case, was first used when judges had the authority to determine factors that could make a defendant eligible for the death penalty, before the 2002 Supreme Court ruling. "By including the word 'especially', the statute was designed to be employed by a judge, one presumed to have the depth and breadth of experience to identify those first degree murders 'above the norm,'" he wrote.  Nurmi added that under current law, "layperson jurors" are left to "muddle through" the definition, with a suspect's life in the balance.

Maricopa County Attorney Bill Montgomery called the motion a standard procedural move. "Those are defense attorneys doing their job advocating for their client," Montgomery said Wednesday. "Obviously, we disagree."...

The defense motion was filed as prosecutors are preparing to pursue the ultimate punishment again in a second penalty phase with a new jury.  Arias' murder conviction will stand.  Prosecutors also have the option of taking the death penalty off the table and avoiding another trial, meaning Arias would be sentenced to life in prison.

Taxpayers footed the bill for Arias' court-appointed attorneys throughout her nearly five-month trial at a cost so far of nearly $1.7 million, a price tag that will only balloon if the case moves forward.  Montgomery has declined to publicly release the cost his office incurred prosecuting the case, citing a court order that seals some, but not all, materials involved in the trial.  The county, meanwhile, has provided regular updates on Arias' defense costs.

Regardless, Montgomery said the cost to taxpayers will play no role in whether prosecutors decide to resolve the case without another trial, or move forward with the lengthy process of seating a new jury in an effort to secure a death sentence.  That process would involve retreading testimony and evidence to bring the new jury up to speed.

June 26, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

An argument that the "Leahy/Paul bill is a disaster" from Bill Otis

I was intrigued to see that frequent commentor and former Justice Department official Bill Otis has this lengthy new post over at Crime & Consequences explaining in detail why he believe that the Justice Safety Valve Act proposed by Senators Patrick Leahy and Rand Paul "is a disaster, both for US Attorneys Offices and, more importantly, for the country."  I recommend all readers head over to C&C to see all of what Bill has to say in opposition to a bill that would allow judges to sentence below applicable mandatory minimum statutes if and when they believed such a sentence would achieve the sentencing purposes Congress set forth in 3553(a).

To whet appettites, here are a few key sentences from a few the key paragraphs from Bill's commentary:

If adopted, some judges would continue to adhere to mandatory minimums, but some wouldn't. Judicial indiscipline would increase over time, just as the number and rate of non-government approved downward departures has increased over time since mandatory guidelines were overthrown eight years ago in Booker. For the reasons I shall now explain, the ensuing one-way ratchet downhill will produce at least three perverse results.

First, it will end the rule of law in sentencing. For those who believe that the rule of law is better than the rule of taste, this would be a loss of enormous magnitude....

The second perverse result is that this bill is certain to increase crime. One hardly need be a genius to understand that, when you have muggers, drug pushers and the rest of them in prison and off the streets, the streets are safer....

The third adverse effect of ending mandatory minimums is that it will increase the cost and litigiousness, and decrease the effectiveness, of the AUSA's work....

In a future post, I will explain why I think Bill's concerns are in some ways overstated and in other ways misguided.  But, perhaps more importantly, I am glad to see someone explain in detail the basis for possible opposition to the Justice Safety Valve Act.  And I hope that the debate over this important federal sentencing reform bill not only takes place on blogs, but also in the hall of Congress through formal hearings concerning the bill in the weeks and months ahead.

Some recent and older related posts:

June 26, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (33) | TrackBack

By wishing for end to legal proceedings, are Ariel Castro's victims urging a plea deal and no death penalty trial?

The question in the title of this post is my reaction to this new story, headlined "'Sordid details': Ariel Castro's alleged kidnapping victims want case to be over," coming today from the high-profile Cleveland kidnapping case. Here are the basics: 

The three young women allegedly held captive for a decade in a Cleveland home where they were raped and tortured want to get the case to court as quickly as possible, their attorneys said on Wednesday, adding that they want “this whole thing behind them.”

Amanda Berry, Gina DeJesus and Michelle Knight escaped Castro’s home on May 6 after Berry broke through a front door and screamed to neighbors for help. “The longer this process lasts, the more painful it is for them. And the more sordid details of this horror that get disclosed in this process, the more painful it is for them,” attorney Kathy Joseph, who is representing Knight, said in a statement....

“Again, they have faith in the process, but the simple, honest truth is they would like it to be over,” said James Wooley, attorney for Berry and DeJesus. “They want this whole thing behind them. Any date by which this may end is like light at the end of a tunnel.”

Ariel Castro has pleaded not guilty to 329 charges including kidnapping and rape.  On Wednesday, Judge Michael Russo in Cuyahoga County ordered Castro to undergo a competency evaluation regarding his ability to understand the trial proceedings and work with his attorney. Castro spoke twice during the 10-minute pre-trial hearing on Wednesday, both times affirming that he understood the judge.

As everyone who follows capital cases should know well, the most certain way to ensure that the prosecution of Ariel Castro does not get resolved quickly would be for the District Attorney to serious pursue a death sentence and to refuse to engineer a plea deal including a lesser sentence.  I have to believe the victims and their attorneys understand this, and thus I also believe that these new statements on behalf of the victims are, in essence, a request to key prosecutors to get to work on a quick plea deal to bring a form of closure to the legal proceedings ASAP.

Recent related posts:

June 26, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

June 25, 2013

"Medicaid for prisoners: States missing out on millions"

The title of this post is the headline of this notable and lengthy USA Today article, which gets started this way:

Only a dozen states have taken advantage of a long-standing option to stick the federal government with at least half the cost of hospitalizations and nursing home stays of state prison inmates.  The other states have left tens of millions of federal dollars on the table, either because they didn't know about a federal rule dating to 1997 or they were unable to write the laws and administrative processes to take advantage of it.

States and localities have a constitutional obligation to provide adequate health care to prisoners, and they must pay for it out of their own budgets.  However, a 1997 ruling says that care provided to inmates beyond the walls of the prison qualifies for Medicaid reimbursement if the prisoner is Medicaid eligible.  The federal government then pays 50 percent to 84 percent of Medicaid costs.

Ever since that ruling, it has made fiscal sense to get inmates who needed outside medical attention enrolled in Medicaid, said Aaron Edwards, a legislative analyst in California who helped get the state's program started, "but in 2014 it really becomes a no-brainer."

That's when the major elements of the Affordable Care Act take effect, and most prison inmates will be eligible for Medicaid if they need health services outside of prison.  The number of inmates in state prisons as of 2011 was nearly 1.6 million, according to the U.S. Justice Department.  An additional 745,000 were in local jails, a population that would also qualify for Medicaid benefits if they required outside medical care.

Right now, in most states, only prisoners who are pregnant, disabled or aged are eligible for Medicaid coverage when they need outside medical attention.  But most states and localities don't bother to seek Medicaid reimbursement for that limited class of prisoners, an omission that deprives them of millions of dollars in potential federal reimbursement. It's not the inmates themselves but rather the states and localities that are the beneficiaries of the federal Medicaid reimbursement.

So far, only Arkansas, California, Colorado, Delaware, Louisiana, Michigan, Mississippi, Nebraska, North Carolina, Oklahoma, Pennsylvania, Washington and some scattered local governments are tapping Medicaid to pay for inpatient medical and nursing home care.  A few more states are looking into it, including Georgia, Massachusetts, Minnesota, New Mexico, New York and Virginia.

June 25, 2013 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

"Equal justice: An appeals court wisely rules on drug sentencing"

The title of this post is the headline of this notable new editorial appearing in today's Pittsburgh Post-Gazette discussing and praising last month's Sixth Circuit ruling in Blewett (basics here).   Here are excerpts:

In the nation's long, costly and practically futile war on drugs, severe sentencing disparities between crack and powder cocaine stand out as an egregious and misguided policy that was stoked by near-hysteria.

Convinced that crack cocaine was 100 times more dangerous than powder cocaine, lawmakers in 1986 enacted a notorious 100-to-1 sentencing scheme that levied the same prison sentence for possessing 5 grams of crack as it did for 500 grams of powder.

A 2010 law, the Fair Sentencing Act, restored some sanity to federal sentencing laws by narrowing considerably the disparities in sentencing between crack and powder. Unfortunately, the law did not spell out whether the new standards applied retroactively to people who were sentenced before it was enacted.

This month, however, a federal appeals court in Cincinnati ruled correctly that those sentenced for crack cocaine violations before the 2010 law was enacted can be resentenced under the new law. The cleanest and best solution would be for Congress to amend the Fair Sentencing Act to make it fully retroactive.

Until then, the ruling by the appeals court opens the door for thousands of inmates to ask federal judges to shorten their prison sentences. It expands a U.S. Supreme Court ruling last year that applied the Fair Sentencing Act to people who committed crack cocaine crimes shortly before more lenient penalties took effect in 2010.

It's time to undo fully these unjust and irrational sentences, which treated powder cocaine users -- who were typically white and often affluent -- far more leniently than the mostly black and poor users of crack cocaine.

Related posts on Blewett:

June 25, 2013 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21) | TrackBack

June 24, 2013

NY Times editorial page gets on-board with Justice Safety Valve Act

Today's New York Times this new editorial headlined "Needed: A New Safety Valve." The piece draws on the encouraging bipartisan work in the House of Representatives concerning problems with the modern federal criminal justice systems and echoes some points stressed in a Wall Street Journal op-ed I co-wrote last month (noted here). Here are excerpts from the editorial:

Congress’s new bipartisan task force on overcriminalization in the justice system held its first hearing earlier this month. It was a timely meeting: national crime rates are at historic lows, yet the federal prison system is operating at close to 40 percent over capacity.

Representative Karen Bass, a California Democrat, asked a panel of experts about the problem of mandatory minimum sentences, which contribute to prison overcrowding and rising costs. In the 16-year period through fiscal 2011, the annual number of federal inmates increased from 37,091 to 76,216, with mandatory minimum sentences a driving factor. Almost half of them are in for drugs.

The problem starts with federal drug laws that focus heavily on the type and quantity of drugs involved in a crime rather than the role the defendant played. Federal prosecutors then seek mandatory sentences against defendants who are not leaders and managers of drug enterprises. The result is that 93 percent of those convicted of drug trafficking are low-level offenders.

Both the Senate and the House are considering a bipartisan bill to allow federal judges more flexibility in sentencing in the 195 federal crimes that carry mandatory minimums. The bill, called the Justice Safety Valve Act, deserves committee hearings and passage soon....

The proposed bill would apply to all federal crimes with mandatory minimums, not just drug crimes, so it would include theft of food stamps and miscellaneous other lesser crimes. It would also let judges consider less-lengthy sentences for drug offenders who don’t qualify for a reduction under the current law.

The case of Weldon Angelos has long stood for the injustice of mandatory minimums. Mr. Angelos received a 55-year prison sentence in 2004 for selling a few pounds of marijuana while having handguns in his possession, which he did not use or display. In an extraordinary opinion, the federal trial judge said he had no choice but to impose that “cruel, unjust, and irrational” sentence. The Justice Safety Valve Act would give courts more leeway to avoid that one-size-fits-all approach.

Some recent and older related posts:

June 24, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Big SCOTUS majority blesses congressional power to go after sex offenders through SORNA

Though Supreme Court anticipation now is mostly about matters tangential to the interest of truly hard-core sentencing fans, there was one last case dealing with federal regulation of sex offenders that SCOTUS handed down this morning.  Here is the early report via SCOTUSblog:

U.S. v. Kebodoeux. The Fifth Circuit is reversed and remanded.  Registration requirement under SORNA as applied to Kebodeaux falls within the scope of Congress's authority under the Necessary and Proper Clause.

Justice Breyer has the opinion for hte Court. Vote is 7-2.  Chief Justice files a concurring opinion (in the judgment only) joined by Alito; Justice Scalia dissents, for himself; Justice Thomas dissents in an opinion joined in part by Justice Scalia.

SORNA is the Sex Offender and Registration Notification Act....  Here is the opinion in Kebodeaux, the SORNA case.

June 24, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack