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January 19, 2013

State marijuana legalization realities: "Obama's promise could send you to prison"

The title of this post is drawn from this new column by Debra Saunders in the San Francisco Chronicle. Here are excerpts:

Like a lot of Californians, Stockton businessman Matt Davies, 34, expected that when Barack Obama was elected in 2008, the new administration would not prosecute medical marijuana dispensaries operating under a law passed by California voters in 1996.  After all, as a candidate, Obama contended that he saw federal enforcement against medical marijuana as a waste of resources.

On Oct. 19, 2009, Deputy Attorney General David Ogden released a memo that instructed the Department of Justice not to focus federal resources "on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana."  Davies took that memo as a green light to join the "green rush" and use his MBA expertise to run a taxpaying enterprise to distribute what he refers to as "medicine" to sick people.

Now that he faces a minimum sentence of seven years in prison if he pleads guilty, the father of two understands that he should have read the memo more carefully.  "Looking back and reading that now, you can drive a Mack truck through that," Davies told me in a meeting with his wife Molly and attorney Steven Ragland....

Davies says his grandfather died a painful death from stomach cancer.  He wanted to help others avoid excruciating pain.  But he also had seen people run dispensaries the wrong way — for example, not paying their fair share of taxes — and he thought his experience running a bistro and property-management firm would enable him to show how medical marijuana dispensing could be done right....

Paradise started to crumble on Sept. 22, 2011, when a burglar alarm went off.  A CHP officer stopped Davies and partner Lynn Smith, and Davies told the officer that the two were on their way to check on a Sacramento facility where they stored marijuana. In July, when a grand jury returned a two-count indictment for cultivating marijuana against Davies, Smith and Robert Duncan, 29, federal prosecutors reported that Davies' candor with the CHP started an investigation....

Seen in another light, however, Davies argued, his honesty shows that he believed his Medizen Collective was legit.... "It didn't used to be a crime to believe your government," attorney Ragland intoned.

Davies' other crime is standing up to federal prosecutors' excesses.  Davies' two co-defendants are pleading guilty in return for expected terms of three and five years.  But Eastern District of California U.S. Attorney Benjamin B. Wagner proposed a seven-year minimum sentence for Davies.  Wagner even wrote that seven years would be "extremely lenient" in light of Davies' "very significant commercial operation." One of Davies' several dispensaries alone grossed more than $3 million annually.

Davies' attorneys have appealed to Attorney General Eric Holder to stop this travesty.  On probation, Davies could continue to meet the payroll for his other businesses.  He could pay taxes and contribute to Stockton's ailing economy. 

In prison, Davies can serve as a testament to one truth alone: When you believe a politician, read the fine print.

A few recent and older related posts: 

January 19, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

January 18, 2013

Lots of technical criminal justice stuff in (final?) four SCOTUS cert grants

The Supreme Court handed down an orders list this afternoon which granted cert in four new cases, many of which have criminal justice elements.  Lyle Denniston has this lengthy new post about the grants, and here are some highlights:

After weeks of pondering what to do about a case with an unusual combination of criminal law and U.S. treaty obligations, the Supreme Court on Friday agreed to accept it for review — for a second time.   The case involves the appeal of a Pennsylvania woman prosecuted for trying to poison her husband’s lover.   She was prosecuted under a federal law that implemented a global chemical weapons treaty.  The case is Bond v. United States (12-158).  Friday’s grants came as the last round of selection of cases that have a chance of being heard in the current Term, ending in late June.   If any of the cases are going to be heard this Term, that would be in April.

The Court also said it would rule on the legal fallout from a major investment “Ponzi scheme,” on a case on the proof needed to show illegal retaliation under federal workplace discrimination law, and on a test of the power of state courts to abolish a defense that an individual accused of crime had previously had available.

In the “Ponzi scheme” case, the Court accepted for review questions raised in three separate petitions, all focusing on whether the Court will block securities fraud class-action lawsuits based on state law, when the fraud had misled investors about the alleged backing of the investment by quality securities traded on major exchanges. The cases involve civil lawsuits arising in the wake of the activities of Texas and Antigua financier Allen Stanford.... The cases, taken to the Court by two law firms and by insurance companies, will be heard together in one hour of oral argument. (Allen Stanford has been convicted of concocting and carrying out the scheme, and is serving a 110-year prison sentence.)...

The fourth new case is Metrish v. Lancaster (12-547), involving the constitutionality of Michigan’s retroactive withdrawal of a criminal suspect’s right to claim that the crime was the result of diminished mental capacity.   That defense was made famous by the so-called “Twinkie” claim — an insistence by an accused individual that his crime was the result of a form of depression that showed up in an inability to resist eating junk food.  “Twinkie defense,” now the popular label for a “diminished capacity” defense, originated in the trial of a San Francisco official who entered city hall and murdered the mayor and another city official.

In the new Michigan case, a mentally disturbed former Detroit police officer sought to use that defense when he was prosecuted for killing his girlfriend for lying to him.   When he committed the crime, in 1993, that defense was available to him.  By the time he went to trial (his second trial) on the murder charge, the state had withdrawn that defense.  The Sixth Circuit Court ruled that the cancellation violated his due process rights.   (The individual in the case is named Burt Lancaster, but is no relation to the Hollywood actor.)

January 18, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Seventh Circuit panel affirms 70-year sentence for "self-described 'kingpin' of child pornography"

Though not clearly breaking any new ground, a Seventh Circuit panel has a notable discussion of reasonableness review today in US v. Boroczk, No. 12-1022 (7th Cir. Jan. 18, 2012) (available here).  The unanimous panel ruling in Boroczk gets started this way:

Darrick C. Boroczk (“Boroczk”),a self-described “kingpin”of child pornography on the internet, created hundreds of sexually explicit images and videos involving two of his own children.  Boroczk pled guilty to four counts of manufacturing and one count of possessing child pornography.  After a day long sentencing hearing, the district court imposed four 15-year sentences on the manufacturing counts and a 10-year sentence on the possession count, to be served consecutively, for a total of 70 years’ imprisonment.  On appeal, Boroczk argues that the district court committed procedural error and imposed a substantively unreasonable sentence. Finding no merit in Boroczk’s arguments, we affirm the 70-year sentence.

January 18, 2013 in Booker in the Circuits, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

"African Americans suffer from high rates of incarceration and crime. Here’s how to drastically reduce both."

1301-coverThe title of this post is the provocative subheading of this lengthy new feature article in the latest issue of Washington Monthy. Authored by Professor Mark Kleiman, the article's main headline is "A New Role for Parole," and here is how the must-read piece starts and ends:

American crime rates, especially violent crime rates, and American incarceration rates are twin national disgraces.  We have five times the homicide rate and five times the incarceration rate of other economically advanced countries.  Both crime and incarceration are appallingly concentrated among poor African Americans; in the same neighborhoods where homicide is the leading cause of death for young men, more than half of those men will do prison time before they turn thirty.

The concentration of incarceration by race is by now a well-worn topic.  Some activists and scholars allege a concerted effort to replace older forms of racial oppression with the penitentiary.  The concentration of incarceration by social class is less well known, but no less worrisome.

What that critique leaves out is the concentration of crime.  Violent crime has fallen 67 percent from its peak in the early 1980s and early ’90s, but remains more than twice as common as it was before the great crime wave of the ’60s.  And crime is just as concentrated as incarceration: blacks are about six times as likely as whites to be imprisoned, and also about six times as likely to be murdered.  Almost all of those homicides are intraracial.  The Crips and the Bloods killed more African Americans in the last quarter of the twentieth century than the Ku Klux Klan killed in its entire history. Homicide rates have fallen sharply over the past two decades, but that may have more to do with improved shock-trauma medicine than with reduced criminality; the rate of gunshot wounds has not fallen.

The actual bloodshed may not be the worst of it.  The costs of crime are both enormous and underappreciated, because they consist primarily not of the direct losses to victims of crimes but of the costs people and businesses incur, and inflict on one another, in attempting to avoid victimization.  Every store that moves away from a poor neighborhood for fear of robbery takes with it both services and jobs, leaving the neighborhood that much poorer and more socially isolated....

A sensible crime-control agenda would satisfy neither the conservative impulse to punish as many people as possible as severely as possible nor the liberal impulse to substitute services for coercion and social reform for law enforcement.  Liberals will have to swallow the idea that improved coercion is as necessary as improved conditions. Conservatives will have to swallow the ideas that punishment is a cost and not a benefit and that the measure of the efficacy of a threat is how often it does not need to be carried out....

Criminal justice institutions need to give crime control priority over institutional comfort and habit. Public and nonprofit agencies that do not have crime control in their mission statements need to acknowledge that they are nonetheless in the crime-control business, whenever their actions and omissions can make the crime problem better or worse.

The bad news is that current policies leave us with unnecessarily and unforgivably high levels of both crime and incarceration. The good news is that we now know how to do better.

This same issue also has this lengthy piece by Professor Glenn Loury with this headline and subheading: "Prison’s Dilemma: Even if every convict were rightly sentenced, America’s vast, racially skewed incarceration system would still be morally indefensible."

January 18, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

"Is it ‘pleaded’ or ‘pled’?"

The title of this post is the headline of this amusing ABA Journal website piece concerning a linguistic issue with which I often struggle.  Here are parts of the article (which includes a poll):

An ABAJournal.com reader recently questioned the publication’s editorial judgment when a story told of two women who pleaded guilty to criminal charges. “This may be a hanged versus hung question,” said the reader using the name OKBankLaw, “but shouldn’t pleaded in the fourth paragraph be pled?"

That much-debated question is being aired in the Daily Report [available here].  On one side is John Chandler, a senior litigation partner at King & Spalding, who advocates “pled” despite the opinion of the editor of Black’s Law Dictionary. “I know, I know: Bryan Garner says that ‘pleaded’ is the ‘predominant form in American English,’ ” Chandler writes. “But does the guy listen to people talk? Nobody says ‘pleaded.’ ” The shorter form is also favored by readers of Above the Law responding to online polls, he argues, as well as the characters on Law & Order.

On the other side is Brian Boone, a senior litigation associate at Alston & Bird. He labels Chandler’s “everybody says it” claim as hyperbole. Boone cites his own Westlaw search showing the U.S. Supreme Court has used “pleaded” in more than 3,000 opinions and "pled" in only 26 — and in some of those instances the court was quoting others.

I tend to favor "pled" though I never feel confident using that form in formal writing. I would be grateful to hear the views of readers.

January 18, 2013 in Procedure and Proof at Sentencing | Permalink | Comments (14) | TrackBack

January 17, 2013

Notable new research exploring connections between incarceration and mental health

4.coverVia The Crime Report, I just learned that the December 2012 issue of the Journal of Health and Social Behavior has two notable new research articles concerning links between incarceration and psychiatric disorders. (Having just recently seen Silver Linings Playbook, which I recommend, I am tempted to call these articles companion pieces to that intriguing movie in which criminal justice realities play a more important role than football.)  Here are links to the articles, along with their abstracts:

Jason Schnittker, Michael Massoglia, & Christopher Uggen, "Out and Down: Incarceration and Psychiatric Disorders":

Psychiatric disorders are unusually prevalent among current and former inmates, but it is not known what this relationship reflects.  A putative causal relationship is contaminated by assorted influences, including childhood disadvantage, the early onset of most disorders, and the criminalization of substance use. Using the National Comorbidity Survey Replication (N = 5692), we examine the relationship between incarceration and psychiatric disorders after statistically adjusting for multidimensional influences.

The results indicate that (1) some of the most common disorders found among former inmates emerge in childhood and adolescence and therefore predate incarceration; (2) the relationships between incarceration and disorders are smaller for current disorders than lifetime disorders, suggesting that the relationship between incarceration and disorders dissipates over time; and (3) early substance disorders anticipate later incarceration and other psychiatric disorders simultaneously, indicating selection. Yet the results also reveal robust and long-lasting relationships between incarceration and certain disorders, which are not inconsequential for being particular.  Specifically, incarceration is related to subsequent mood disorders, related to feeling “down,” including major depressive disorder, bipolar disorder, and dysthymia.  These disorders, in turn, are strongly related to disability, more strongly than substance abuse disorders and impulse control disorders. Although often neglected as a health consequence of incarceration, mood disorders might explain some of the additional disability former inmates experience following release, elevating their relevance for those interested in prisoner reintegration.

Kristin Turney, Christopher Wildeman, & Jason Schnittker "As Fathers and Felons: Explaining the Effects of Current and Recent Incarceration on Major Depression":

Dramatic increases in the American imprisonment rate since the mid-1970s have important implications for the life chances of minority men with low educational attainment, including for their health.  Although a large literature has considered the collateral consequences of incarceration for a variety of outcomes, studies concerned with health have several limitations: Most focus exclusively on physical health; those concerned with mental health only consider current incarceration or previous incarceration, but never both; some are cross-sectional; many fail to consider mechanisms; and virtually all neglect the role of family processes, thereby overlooking the social roles current and former prisoners inhabit.

In this article, we use stress process theory to extend this research by first considering the association between incarceration and major depression and then considering potential mechanisms that explain this association. Results from the Fragile Families and Child Wellbeing Study (N = 3,107) show current and recent incarceration are substantially associated with the risk of major depression, suggesting both immediate and short-term implications.  In addition, consistent with stress proliferation theory, the results show the well-known consequences of incarceration for socioeconomic status and family functioning partly explain these associations, suggesting the link between incarceration and depression depends heavily on the consequences of incarceration for economic and social reintegration, not only the direct psychological consequences of confinement.

January 17, 2013 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

"Marijuana Possession Arrests Exceed Violent Crime Arrests"

0116marijuana_crime_arrestsThe title of this post is the headline of this new commentary at The Huffington Post.  Here are excerpts from the piece from which I obtained the reprinted graphic:

Americans are shifting on marijuana. More than half of them think it should be regulated like alcohol and cigarettes, 18 states have passed legislation approving it for medical use and Washington State and Colorado have legalized it for recreational use, but it remains illegal under federal law. And the arrests continue — one every 42 seconds, and 86 percent of those are simply for possession, according to the Marijuana Policy Project.

In 2011, marijuana possession arrests totaled 663,032 — more than arrests for all violent crimes combined. Possession arrests have nearly doubled since 1980, according to an FBI report, while teen marijuana use recently reached a 30-year high.

President Obama said last month that going after recreational pot users in states where it is legal is not "a top priority" for his administration, which echoes a promise he made in 2008 not to interfere with states' medical marijuana laws. Since then, his administration has aggressively targeted dispensaries that are in compliance with state law.

Taxpayers have shouldered the cost of arresting and incarcerating hundreds of thousands of people for the possession of marijuana, often in small quantities for personal use. Some national estimates put the annual cost of marijuana arrests above $10 billion, and low-level arrests for marijuana possession cost New York City alone $75 million in 2010. New York Gov. Andrew Cuomo proposed decriminalizing possession of 15 grams or less — even when flashed in public view — last week in his State of the State address.

A few recent and older related posts: 

January 17, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Does four years seem just and effective as federal sentence for high-profile obscenity convictions?

The question in the title of this post is prompted by this Los Angeles Times report on a lengthy and high-profile federal prosecution.  The piece is headlined "Maker of porn films gets 4 years in prison in federal obscenity case," and here are the case specifics:

A Los Angeles-based creator of pornographic fetish films was sentenced to four years in federal prison Wednesday for producing and selling obscene material.

Ira Isaacs, 61, received the sentence after a six-year prosecution that included two mistrials and led to the public admonishment of federal Judge Alex Kozinski, who recused himself from the proceedings after a Times investigation found that he placed pornographic images on an Internet server that could be accessed by the public.  Kozinski is the chief judge of the U.S. 9th Circuit Court of Appeals.

Doing business under the name L.A. Media, Isaacs produced, starred in, and distributed pornographic films through a website he advertised as "the Web's largest fetish VHS, DVD superstore."  Some of his films, which depict bestiality and sexual situations involving human excrement, were shown to the jury during his third trial last April.

Although the defense argued that Isaacs' work was protected by the 1st Amendment, there was a general consensus about the appeal of the films, which had titles such as "Hollywood Scat Amateurs No. 7."

"They were so disgusting I couldn't even watch them," said Isaacs' attorney Roger Diamond, who said he averted his eyes and read a book as the 90-minute films were played in court. "But that doesn't mean they're not free speech."

Isaacs said his films were supposed to shock and disgust people in a way that deconstructs their conception of art. He turned down a plea bargain that would have saved him from incarceration and said he had no regrets. "It makes people think, 'What is art? Can art be gross?' " he said....

Prosecutor Michael Grant said Isaacs had never mentioned artistic intentions until he was in front of a court. "Since 1999, he has operated a business with one goal in mind: make money off of individuals that enjoy sick materials," Grant said in court.

Diamond asked the judge to lighten the sentence to probation because he said Isaacs had accepted responsibility for his crimes. But Judge George H. King, who presided over the case, said Isaacs had sought to "cloak himself" in the 1st Amendment with a "cynical post-hoc justification" and was not "a defender of the 1st Amendment."

Addressing Isaacs directly, King said, "You are an abuser of the 1st Amendment. You cheapen the 1st Amendment." King said that because Isaacs continued selling the films, even plugging his website on a radio show two days after his conviction, incarceration was a necessary "deterrent." Isaacs must also pay more than $10,000 in fines, as well as submit to community supervision for three years after his release from prison.

Isaacs was asked to report to federal authorities by Feb. 19, but he plans to file an appeal. Clad in a fedora and a baggy gray suit after the sentencing, he appeared unfazed by the prospect of prison time. "That's the Academy Award I just won in there," Isaacs said. "That's an artist's dream."

In other press accounts of the sentencing, I have seen reported that the statutory sentencing range in this case was 0 to 20 years of imprisonment. And an extended account of the sentencing via this adult industry news website xbiz.com indicates that the four year sentence was a below-guideline sentence because, it appears, the calculated guideline range was 51 to 71 months.

January 17, 2013 in Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (25) | TrackBack

"Decoupling Federal Offense Guidelines from Statutory Limits on Sentencing"

The title of this post is the title of this notable new federal sentencing article by Professor Kevin Bennardo which is now available via SSRN. Here is the abstract:

When incorporating statutorily-mandated minimum and maximum sentences into offense guideline, the United States Sentencing Commission must strike a delicate balance between promulgating guidelines that are consistent with federal law and carrying out its characteristic institutional role of advising sentencing courts of proper punishment based on empirical data and national experience.

This article recommends that, in general, when a statutory limit on sentencing deviates from what the Commission deems to be fair punishment, the Commission should incorporate the statutory limit into the offense guideline to the least extent possible. Although this approach may lead to cliffs and plateaus in the Guidelines ranges and thereby diminish relative fairness between similarly-situated offenders, this approach maximizes the imposition of actually fair sentences (as viewed by the Commission) within the confines of the statutory scheme.

Controlled substance offenses, however, are an exception. In some instances, drug offenders are relieved from the application of an otherwise-applicable mandatory minimum sentence through the operation of the so-called “safety valve” or, in some circuits, because the government failed to plead the triggering drug quantity in the indictment or prove it beyond a reasonable doubt. To achieve actual fairness for these offenders, the Commission should apply a controlled substance offense guideline that takes no account of statutory limits on sentencing.

By amending offense guidelines that incorporate mandatory minimums to more closely reflect its own research and expertise, the Commission will better achieve offense guidelines that produce Guidelines ranges that the Commission views as actually fair.

January 17, 2013 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Judiciary Committee Chair Leahy expresses interest in mandatory minumum sentencing reform

At the end of this lengthy post at The BLT, I discovered some interesting and encouraging sentencing reform news coming from a speech given yesterday by Senator Patrick Leahy.  Here is the start and end of the post:

Senate Judiciary Committee will dedicate most of its time this spring to comprehensive immigration reform, including changes for technology companies and agricultural businesses, Senator Patrick Leahy (D-Vt.), the committee's chairman, said Wednesday.

"We have to find a way through the partisan gridlock to enact meaningful change on immigration laws, and that should include a path for citizenship," Leahy said at Georgetown University Law Center this morning. "I know I’m going to hear a lot of different views on this, but I hope that in the end we can honor those who came before us from distant lands in search of freedom and opportunity."...

The committee will also focus on promoting national standards and oversight for forensic labs and practitioners, as well as fiscal issues related to the high rate of imprisonment and mandatory minimum sentences, Leahy said.

The reliance on mandatory minimum sentences has been "a great mistake," Leahy said. "Let judges act as judges and make up their own mind what should be done. The idea we protect society by one size fits all…it just does not work in the real world."

Leahy also said there are too many young people, minorities, and people from the inner cities, who are serving time where others who do the same crime get lighter penalties.  He used the example of someone from the inner city buying $100 of cocaine could spend years in prison, while a Wall Street banker would only face reprimand, and maybe spend a week of public service on Park Avenue.

January 17, 2013 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (5) | TrackBack

January 16, 2013

Effective review and criticisms of modern big-government criminal justice in "The Power Of The Prosecutor"

AgiThe title of this post is drawn from the headline of this lengthy must-read new piece by Radley Balko in reaction to the controversy over the Swartz case.  Here is how the piece starts and ends, with the headings from what I have cut out is in-between:

The death of Internet activist Aaron Swartz has generated a lot of discussion about the power of prosecutors -- particularly federal prosecutors.  This is a good thing.  The conversation is long overdue. But the discussion needs to go well beyond Swartz and the Computer Fraud and Abuse Act.

Prosecutors have enormous power.  Even investigations that don't result in any charges can ruin lives, ruin reputations, and drive their targets into bankruptcy.  It has become an overtly political position -- in general, but particularly at the federal level.  If a prosecutor wants to ruin your life, he or she can.  Even if you've done nothing wrong, there isn't a whole lot you can do about it.

There are a number of factors that got us here, and it's worth looking at them in turn....

We have too many laws....

The laws are too vaguely and broadly written....

Prosecutors have perverse incentives....

Protections have morphed into weapons....

Bringing the hammer down.

The federal government in particular seems to be getting less tolerant of challenges to its authority, and more willing to use more force and more serious charges to make an example of people who defy the law.  You see this with the ridiculously disproportionate SWAT raids on medical marijuana dispensaries.  No one seriously believes the people running these businesses are a threat to federal law enforcement officers.  Sending the SWAT team is about sending a message.  The government is sending a similar message when it conducts heavy handed raids on farmers and co-ops that sell raw dairy products, or when it sends paramilitary teams to raid the offices of doctors suspected of over-prescribing prescription painkillers.  You see it when the feds throw the book at suspected copyright violators, or at the executives of online poker sites, threatening decades in prison.  The goal in these cases isn't to stop and punish someone who is a serious threat to other people.  It's to send a message to the rest of us: Defy the government as this person did, and here is what will happen to you.

The politicization of criminality.

When everyone is breaking the law, it becomes rather easy to use the law as a political weapon.  We saw this during the Bush administration with a number of targeted prosecutions aimed at prominent members of the other party, or at "sending a message" of some kind.  And of course the law and order instinct toward more power for cops and prosecutors has long been more associated with conservatives.

But the left is guilty, too.  The rush to publicly convict George Zimmerman for killing Trayvon Martin resulted in an indictment that most defense attorneys have since characterized as absurdly overreaching and aggressive.  Yet outside of legal commentators and pundits, most on the left seemed to be okay with it.  There have also been credible accusations of prosecutorial misconduct that have received little coverage outside the conservative media (which itself seems suddenly interest in protecting the rights of the accused).  When Elliott Spitzer was trouncing the constitution with aggressive tactics in his pursuit of corporate bigwigs, he was largely cheered by progressives and editorial boards who are traditionally more supportive of the rights of the accused.  When the Heritage Foundation first undertook its overcriminalization project, the progressive organization Media Matters actually mocked the conservative think tank for being soft on crime.

Too often, criticism of prosecutorial excesses isn't framed as this should never happen, but why isn't this also happening to the people I don't like?  Until that changes -- until partisans are willing to condemn abuses even by their own, or committed against their political opponents or people they personally find unsavory -- the problem is only going to get worse.

I'd suggest all of these factors (and probably a few I haven't thought of) have increasingly made us a nation ruled not by laws, but by politics (and by aspiring politicians).  And once criminality is influenced primarily by politics, we're all just potential criminals.

January 16, 2013 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Sentencing "highlights" in President Obama's new gun control push

Thanks to this helpful piece from the New York Times, which is headlined "What’s in Obama’s Gun Control Proposal," I see that at least a few of the latest idea on gun control coming from the White House involve sentencing matters.  Via the list provided by the Times, here is a partial account of the provisions likely to be of greatest interest to sentencing fans:

Proposed Congressional Actions

• Requiring criminal background checks for all gun sales, including those by private sellers that currently are exempt.

• Reinstating and strengthening the ban on assault weapons that was in place from 1994 to 2004....

• Increasing criminal penalties for "straw purchasers," people who pass the required background check to buy a gun on behalf of someone else.

• Acting on a $4 billion administration proposal to help keep 15,000 police officers on the street....

Executive actions...

• Directing the attorney general to review categories of individuals prohibited from having a gun to make sure dangerous people are not slipping through the cracks....

• Issuing a presidential memorandum to require federal law enforcement to trace guns recovered in criminal investigations.

• Releasing a report analyzing information on lost and stolen guns and making it widely available to law enforcement authorities.

• Maximizing enforcement efforts to prevent gun violence and prosecute gun crime.

• Issuing a presidential memorandum directing the Centers for Disease Control and Prevention to research gun violence.

• Directing the attorney general to issue a report on the availability and most effective use of new gun safety technologies and challenging the private sector to develop innovative technologies.

As regular readers know, the last listed item here is of particular interest to me because I continue to want to believe that smart gun technologies may be a much more effective and efficient means to reduce gun violence than lots of new prohibitions or increased sentences and other costly criminal justice investments.

Prior related posts following Newton masacre:

January 16, 2013 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (6) | TrackBack

Still more notable (and complicated) crime data from FBI for start of 2012

Ucr_logoLargely lost this week in all the debates — and (excessive?) media coverage of the debates — over gun control was this news via the FBI concerning its latest data on crime in the first six months of 2012.  The FBI press release is given the heading "Early 2012 Crime Stats: Slight Uptick in Crime," and one needs to drill down into specifics in order to see how dynamic this latest data story concerning reported crimes in this first half of 2012 vary by type and region:

Two of the four offenses in the violent crime category actually showed overall decreases when compared with data from the first six months of 2011 — murders dropped 1.7 percent and forcible rapes fell 1.4 percent.  But the number of robberies increased 2.0 percent and aggravated assaults 2.3 percent.

At a regional level, the West saw the largest overall jump in violent crime — up 3.1 percent — followed by a rise of 2.5 percent in the Midwest and 1.1 each percent in the South and the Northeast.  Despite these increases, the number of murders fell 4.8 percent in the South and 2.4 percent in the Northeast.

The only violent crime offense category that showed increases in all four regions of the country was aggravated assault, which was up 4.4 percent in the Midwest, 2.4 percent in the West, 1.7 percent in the South, and 0.8 percent in the Northeast.

On the property crime front, all three offense categories showed overall increases — 1.9 percent for larceny-theft, 1.7 percent for motor vehicle theft, and 0.1 percent for burglary.

Regionally, the West saw the largest rise in property crime — up 4.7 percent, followed closely by the Northeast at 4.0 percent. The Midwest was up 1.3 percent, but the South actually showed a decrease of 1.4 percent.

For individual property crime offense categories, statistics indicate that the West had the largest increase in the number of burglaries (up 6.7 percent) and motor vehicle thefts (up 8.1 percent). And the Northeast had the largest rise in the number of larceny-thefts, which were up 4.5 percent.

Notwithstanding the "crime is up" central story, I see the decline in murders and rapes nationally (and the very sizeable drop in the South in particular) to be an important bit of very good news.  To provide some rough numbers, I believe the nearly 5% decline in murders in the South means there are a couple hundred more persons in that region still alive than if murder rates had been merely stable. 

The uptick in robbery and property crimes is, of course, disappointing and perhaps distressing.  But I wonder, were we able to drill down further into these numbers, if we might find an especially warm start to 2012, along with the ever-growing popularity of easy-to-pilfer tablets and smart-phones, provides a relatively benign account of possible explanatory factors for the uptick.

Finally, as the must-read new Mother Jones article on crime rates still echoes in my brain, there may just be one simple explanation for this all: lead.

Some related posts on the great modern crime decline: 

January 16, 2013 in National and State Crime Data | Permalink | Comments (1) | TrackBack

"Punishment Without Culpability"

The title of this post is the title of this notable new paper on SSRN by Professor John Stinneford, which ought to be of special interest both to those who think of themselves as criminal justice "originalists" and to those eager for reform of strict liability elements of modern criminal law.  Here is the abstract:

For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor.

The Supreme Court’s inability to place meaningful constitutional limits on this aspect of legislative power is often described as a failure of courage or will. This Article will demonstrate that it is actually a failure of memory. Prior to the turn of the twentieth century, the Supreme Court’s jurisprudence was animated by two traditional common law ideas: (1) that there are real moral limits to what the government can do, and (2) that the most reliable way to tell whether the government has transgressed those limits is to analyze the challenged action in light of longstanding practice. In the first half of the twentieth century, the Supreme Court rejected these ideas in favor of instrumentalism, an approach to jurisprudence that sees law as a mere instrument through which government experts can solve social problems in light of new scientific insights. As a result, for several decades the Court seemed to approve a limitless legislative power to define and punish crime, which the Court treated as just another form of regulation.

This approach did not last. Criminal law does not merely regulate: it imposes moral condemnation on the offender in the name of the community. In recent decades, the Supreme Court’s constitutional criminal jurisprudence has moved toward reassertion of the old common law constraints, imposing either moral or precedential limits on the power of the legislature to define and punish crime. But because the Court no longer understands the relationship between morality and tradition, these efforts have mostly failed. This Article will suggest that the only way to develop a constitutional criminal jurisprudence that is coherent, just, and duly respectful of the legislature’s primacy in defining and punishing crime is to return to the common law synthesis of morality and tradition that underlies the constitutional law of crime.

January 16, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (6) | TrackBack

How do puppy rapists get treated in prison?

It is often reported that child rapists are often treated as pariahs even among the most hardened criminal is prison.   Consequently, this stunning local sentencing story prompted the (serious?) question in the title of this post. The article — which has an ending that led me to double-check it wasn't from The Onion — is headlined "N.Y. super who had sex with dog gets prison."  Here are the details:

An apartment building superintendent who was caught on tape entering a unit and having sex with the tenant's puppy was sentenced to prison Tuesday.

Kujtim Nicaj, 44, was sentenced Tuesday by Westchester County Judge Barry Warhit to 6.5 years in prison and 7 years' probation after pleading guilty in October 2012 to burglary and sexual misconduct charges.  "This case was unusual to say the least," Warhit said.  "You exhibited cruelty to the animal.  Your behavior was inexcusable."

Alan Kachalsky thought something in his apartment was amiss for months — blinds drawn that had not been, a window left open that he had left shut.  But nothing ever went missing, and, fearing he may come off as paranoid, Kachalsky never went to the police. Instead, he set up three cameras and waited.  Kachalsky shared his apartment at the Rye Colony Cooperative Apartments with a male Labrador puppy, Gunner, who, unbeknownst to Kachalsky, was the real target of the burglar.

The burglar, it turned out, wasn't there to steal anything, Kachalsky said Tuesday, but for something far more unimaginable.  Kachalsky, an attorney, said it never occurred to him that someone was returning to have sex with his dog.  Kachalsky turned over the video to police, who questioned and arrested Nicaj on Feb. 9, 2012, for sex acts against the 1-year-old dog committed the day before.

Nicaj, who wore a blue-striped gray sweater and blue jeans Tuesday in Westchester County Court, spoke little in court before his sentence, only telling Warhit that he had nothing to say.  Steven Davidson, a lawyer for Nicaj, indicated after the proceedings that he might appeal the sentence, calling it unfair.  "We'll do everything we can to protect his interests," Davidson said, adding that Nicaj was doing well under the circumstances, "other than what his family is going through."...

Nicaj, a 15-year resident of Rye, worked at the apartment complex for six years before his arrest, and Kachalsky said that the super seemed like a normal guy until one day, a few weeks before Kachalsky had set up the cameras, when the two had an odd run-in outside Kachalsky's apartment.   "He said he had stopped by to check the gas," Kachalsky said, even though the gas had been on for some time.

Finally, Kachalsky set up three cameras, which provided indisputable evidence — "a naked man, in your apartment, having sex with your dog," Kachalsky said.  "I was wondering why someone would keep coming in here," Kachalsky said. "I never noticed anything to make me think."

A subsequent examination of Gunner by a veterinarian revealed no permanent physical damage, Kachalsky said, and the vet even expressed surprise that the soon-to-be 2-year-old pup could still interact normally with men.  The dog had always eagerly greeted visitors at the door, Kachalsky said, and still does, but on the video, with Nicaj, Gunner was abnormally passive.  "Gunner just sat on the couch," Kachalsky said.  "He did not get up."

Now, Kachalsky said, Gunner is mostly back to his old self.  He turns 2 years old Jan. 25. "Anytime anyone comes in, he's all over 'em," Kachalsky said.  "He's a terrific dog."

Given the apparent happy ending for the victims of this crime, I am not sure whether to encourage off-color jokes about this case or to engage in serious analysis of the prosecution of this peculiar puppy rapist.  Thus, I pose this dilemma to readers:

January 16, 2013 in Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (16) | TrackBack

January 15, 2013

"Mass Incarceration in Three Midwestern States: Origins and Trends"

The title of this post is the title of this new paper now on SSRN authored by the ever-prolific Professor Michael O'Hear. Here is the abstract:

This Article considers how the mass incarceration story has played out over the past forty years in three medium-sized, Midwestern states, Indiana, Minnesota, and Wisconsin.  The three stories are similar in many respects, but notable differences are also apparent.  For instance, Minnesota’s imprisonment rate is less than half that of the other two states, while Indiana imprisons more than twice as many drug offenders as either of its peers.

The Article seeks to unpack these and other imprisonment trends and to relate them to crime and arrest data over time, focusing particularly on the relative importance of violent crime and drug enforcement as drivers of imprisonment growth.

January 15, 2013 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

"Neighbor states on guard against pot from Colo., Wash."

SoBThe title of this post is the headline of this notable new USA Today article, which gets started this way:

States neighboring Colorado and Washington are wondering how much marijuana will spill across their borders after voters in those two states legalized its recreational use in November. They vow to arrest and prosecute marijuana possessors even if the product is purchased legally across state lines.

Possession of any amount of marijuana is a misdemeanor under federal law, and selling it in any amount is a federal felony. President Obama said last month that "we have bigger fish to fry" than going after pot smokers in Washington and Colorado. The Justice Department has not said how it will respond or whether it is concerned about increased cross-border trafficking from the two states.

One drug-control advocate predicts that trafficking will increase into and out of Washington and Colorado, and that could drive down the cost of marijuana regionally. "The retail marijuana stores will be in business to make as much of a profit as possible," says Tom Gorman, director of the Denver-based drug-policy group Rocky Mountain High Intensity Drug Trafficking Area. "That means selling as much marijuana as they can to the largest number of people as they can. That will create a competitive market based on quality and the price of the product."

Law enforcement officials in neighboring states are watching as Colorado and Washington regulators decide how the product can be grown, processed and sold in their states. "Everyone is aware of the possibility that you could have an increase (in cross-border traffic), especially for some of our counties on the border of Colorado," says Lt. Josh Kellerman, a spokesman for the Kansas Highway Patrol. "People might not understand that while they bought it legally in Colorado, it is still illegal in our state."

Wyoming Attorney General Greg Phillips notes that the state's Supreme Court in 2011 ruled that marijuana bought for medical purposes in California still was illegal in Wyoming. "I think the same rule applies" for marijuana purchased in states that have legalized it, Phillips says.

I find these matters of special interest because, as the article highlights, there is no legal dispute that other states can criminalize and seriously punish what has been made legal in Colorado and Washington. But, as the article also highlights, there will likely be a significant market opportunity for legal marijuana businesses to set up shop near borders to draw customers from states in which the product is illegal. (In this context, I cannot help but think of all the fireworks stores I have passed just past the southern border of North Carolina on major highways headed toward Carolina beach communities.  Notably, the (in)famous South of the Border rest stop in South Carolina reflects this story perfectly, as it got its start just as a place to buy beer outside adjacent "dry" counties in North Carolina.)

Barring restraints put in place by Colorado and Washington, there will surely be some efforts (and some success) by marijuana businesses in attracting customers from other states.  Whether and how those states 9and the federal government) will respond to border business and cross-border customers, both formally and informally, will be very interesting to watch in the months and years ahead.

January 15, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Another perspective on Alleyne argument (predicting Harris's demise)

Experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here), who has already provided a terrific review of last week's meeting of the US Sentencing Commission for the blog here, now comes through with this lengthy guest-post concerning what he saw at yesterday's SCOTUS oral argument over the reach of the Apprendi:

In a rather spirited exchange between the Justices and counsel, the U.S. Supreme Court heard oral argument today in Alleyne v. United States, 11-9335. (Alleyne is pronounced “AH-lane,” by the way).   The question presented was whether the Court should over-rule its decade old plurality decision in Harris v. United States, 536 U.S. 545 (2002), which held that Apprendi did not apply to facts triggering mandatory minimum penalties. In Alleyne, the defendant was convicted of violating 18 U.S.C. § 924(c), which requires a 5-year mandatory minimum sentence for possession of a firearm in connection with another felony, but a 7-year mandatory minimum if the firearm was brandished, 10 years if discharged.   Moreover, such mandatory minimum penalties are to be imposed consecutive to any guidelines sentence for the underlying felony.   A special verdict form was used in Alleyne as to whether the defendant merely possessed or brandished the firearm; the jury found only that a firearm was possessed.   However, at sentencing, the district judge found by a preponderance of the evidence that the defendant in fact brandished the firearm.  And while reluctant to be a “reverser” of the jury, imposed the 7-year mandatory minimum sentence.

Somewhat surprisingly, the Court started off with a rather rigorous investigation into stare decisis.   Justices Alito and Scalia explored what the principle was for ignoring stare decisis in this case, and pondered the effect of prior opinions of the Court on Harris. Justice Ginsburg helpfully asked whether the issue simply was the degree of persuasiveness a plurality decision has vis-à-vis a unanimous opinion.  Still Justice Alito struggled with developing a constitutional principle that would support overruling Harris. Nevertheless, it did not appear that stare decisis would be an impediment to reversing Harris.

Moving on to the core issue, the Justices struggled with what the holdings in Apprendi and McMillan (upon which Harris rested) meant in terms of increased penalty exposure.  If the ceiling (statutory maximum) is increased, all agreed that that clearly increases a defendant’s exposure. T he issue was whether that also applied to the floor (mandatory minimum).  Justice Scalia repeatedly returned to the fact that if only the floor changes, say from 5 years to 7 years, it does not change what a judge “could have” imposed, and therefore does not increase a defendant’s exposure.  So, for example, if the ranges are 5 to 10 years, a judge could just as easily impose a 7 year sentences the same as if the range were 7 to 10 years.  The government framed the issue as whether a defendant has a constitutional right to judicial leniency. i.e., to a lower sentence than the mandatory minimum.

Interestingly, while there was a focus on the statutory maximum, there was little discussion of a penalty “range,” which to this observer would have seemed to address much of the concern.  A range, of course, implies both a ceiling and a floor.  Apprendi did, after all, discuss exposure not only in terms of an increased statutory maximum penalty, but expressly held that “[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed RANGE of penalties to which a criminal defendant is exposed.” (Emphasis added).  And as we all know, Booker, in holding the Federal Sentencing Guidelines unconstitutional, was concerned about “ranges” there as well.  So, if the argument had moved away from just the ceiling and to “range,” then it would have seemed to address some of the Court’s concerns.  Interestingly, Justice Breyer, who candidly admitted in Harris that he could not logically distinguish Apprendi from its application to mandatory minimum penalties, was silent throughout much of the debate.

Finally, there was some interesting discussions concerning statistics from Justices Kagan and Sotomayor.  Those Justices inquired as to the frequency of sentences imposed at the mandatory minimum in 924(c) cases.  Presumably if judges impose sentences at the mandatory minimum the majority of the time (and Petitioner’s counsel indicated that this is the case), such a finding presumably would tend to show that judges likely would impose a lower sentence if they could (and indeed, per the record below, that appeared to be the case in Alleyne).   However, the question was not framed quite right.  The penalties at 924(c) are imposed consecutive to any guideline sentence, so unless one knew what the underlying guideline sentence was, merely looking at the final sentence would not be instructive.  Further, and more importantly, the Commission does not provide any statistics on 924(c) that would be helpful to answering this question (although Ch. 9 of its recent report to Congress on Mandatory Minimum Penalties does provide some insight). Providing such statistics would be quite helpful, and the Commission’s database appears robust enough to provide reports on the same.

In the end, it appears to this observer that Harris will be overruled. Given that Harris will have little practical effect on sentencing practice because the government already includes in the indictment the facts that trigger a mandatory minimum, it is somewhat odd (to this observer) why the Court granted cert. in Alleyne.  Was it simply an academic exercise to clean-up Harris?  Perhaps, although it could be the start of a larger effort.  The Court recently asked the government to file a response to a petition of cert. in Stroud v. United States, 12-6877 addressing the controversial holding in Watts that courts may use acquitted and uncharged conduct at sentencing.

Recent prior posts on Alleyne case:

January 15, 2013 in Blakely in the Supreme Court, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Maryland Gov going all in on effort to repeal state's death penalty

As reported in this new Washington Post article, "Maryland Gov. Martin O’Malley plans to announce Tuesday that he will put the full weight of his office behind repealing the death penalty, a move that could tip the balance on an issue that has sharply divided the legislature for years." Here is more:

The governor has long opposed capital punishment, arguing that it is costly and an ineffective deterrent, but he has only once before sponsored a repeal bill, which fell short in 2009.  With the arrival of several new lawmakers since then, and a sense of renewed momentum, O’Malley (D) is set to try again, according to several aides, who spoke on the condition of anonymity to more freely discuss the planned announcement.

O’Malley will make the announcement, the aides said, at a noon rally Tuesday in Annapolis with leaders of the NAACP and other civil rights activists, who have made repeal of Maryland’s death penalty a priority this year. Though the governor’s decision does not guarantee passage, “it makes a huge difference,” said Sen. Brian E. Frosh (D-Montgomery), chairman of the Judicial Proceedings Committee, where repeal bills have stalled in past years, with members arguing that the death penalty should be available for the most egregious murder cases....

With O’Malley’s name on the bill, it is certain to get heightened media attention, as well as the focus of a team of lobbyists employed by the governor’s office and personal attention from O’Malley himself.

Maryland has not executed a prisoner since 2005, but perennial efforts to repeal the death penalty have fallen short. Meanwhile, other states have moved more decisively.  Last year, Connecticut became the fifth state in five years to abolish capital punishment....

But at a time when O’Malley is contemplating a run for national office in 2016, passage of a repeal bill in the Free State — which has five prisoners on death row — could burnish his credentials as a progressive leader with the ability to get things done.

O’Malley is coming off several victories at the ballot box in November, including voter ratification of an O’Malley-sponsored law that legalizes same-sex marriage and another measure, known as the Dream Act, to extend in-state college tuition rates to illegal immigrants....

In recent months, O’Malley has been coy when asked about his plans on the death penalty. The issue gained traction a couple of weeks ago when Senate President Thomas V. Mike Miller Jr. (D-Calvert) said he is willing to let the full body debate the bill, even if it lacks the vote to get out of committee....

Maryland has had an effective moratorium on executions since late 2006, when the Court of Appeals ruled that the state’s death penalty procedures had not been properly adopted, halting executions until new regulations were issued by the administration. O’Malley’s administration issued new rules in 2009, but they were withdrawn after legislators raised objections.  The rules have not been reissued.

As this article notes, Gov. O’Malley's abolitionist effort here is a national story because there is much buzz that O’Malley has national political aspirations.  Also, were Maryland to repeal the death penalty, it would be the state closest to the deep south to take capital punishment off the books in modern times.

January 15, 2013 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (7) | TrackBack

January 14, 2013

Notable new commentary about the Aaron Swartz's case and prosecutorial power

Via How Appealing, I just saw that Slate now has up this new essay by Emily Bazelon titled "When the Law Is Worse Than the Crime: Why was a prosecutor allowed to intimidate Aaron Swartz for so long?". The piece merits a full read; here is how it starts and ends:

I didn’t know Aaron Swartz, but I wish I’d followed the out-of-all-proportion charges the Department of Justice brought against him before his death.  Swartz, of course, is the Internet prodigy who took his own life over the weekend, a few days after prosecutors insisted, according to his lawyer, that he go to prison for allegedly committing computer fraud by downloading 4.8 million articles from the academic database JSTOR.

The causes of suicide are almost always complex, and Swartz suffered from depression. I’m glad that’s been a clear thread running through the coverage of his death.  But Swartz’s mental health history doesn’t change the fact that he was on the receiving end of blatant prosecutorial intimidation — an egregious overcharging of crimes by the U.S. attorney’s office in the name of setting an example.  If the prospect of prison and high legal fees contributed to Swartz’s decision to take his life, as his family and his girlfriend say, then that is a tragedy that should lead to some serious soul searching at the Justice Department.  Prosecutors wield enormous power over all of us.  This case is one terribly sad example of what can happen when they abuse it....

I’d like to tell you that the prosecutorial overreach that took place in Swartz’s case rarely happens.  But that’s not true.  There are many principled prosecutors who only bring charges they believe they can prove beyond a reasonable doubt.  But there are also some who bring any charge they can think of to induce a defendant who may be guilty of a minor crime to plead guilty to a major one.  These cases usually are hard to call attention to: They’re not about innocence, easy and pure.  They’re about the muddier concept of proportionality.  If any good at all can come from Swartz’s unspeakably sorrowful death, maybe it will be how this case makes prosecutors — and the rest of us — think about the space between guilt and innocence.

January 14, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (37) | TrackBack