August 10, 2013
"Parole: Corpse or Phoenix?"The title of this post is the title of this very interesting looking new paper authored by Paul Larkin Jr. of The Heritage Foundation and now available via SSRN. Here is the abstract:
For most of the twentieth century, the federal government used an indeterminate sentencing system at the front end of the correctional process and a parole system at the back end in order to determine when an offender should be released from prison. In 1984, Congress sought completely to revise the federal sentencing and correctional processes. Congress adopted a mandatory sentencing guidelines system in order to restrain the discretionary sentencing authority that federal courts traditionally had enjoyed. Congress rejected an advisory guidelines system because Congress believed that such a process would not eliminate the sentencing disparities that had plagued the federal criminal justice system for decades. Because the new mandatory guidelines would both regularize the sentencing decision and determine when a prisoner would be released, Congress repealed the federal parole laws as being unnecessary. The Supreme Court upheld the constitutionality of the new system over separation of challenges in Mistretta v. United States, 488 U.S. 361 (1989), and parole seemed to have passed into history.
Sixteen years later in United States v. Booker, 543 U.S. 220 (2005), however, the Court held that the same mandatory sentencing guidelines system upheld in Mistretta violated a defendant’s rights under the Sixth Amendment Jury Trial Clause. Booker and later decisions have made the federal sentencing guidelines advisory. The problem is that Congress rejected an advisory guidelines system and would not have repealed the parole laws if the federal sentencing process did not strictly constrain district courts’ sentencing authority. One of the consequences of the Booker decision, accordingly, is that federal sentencing now is susceptible to the same disparities that Congress sought to remedy with mandatory determinate sentencing guidelines in 1984. The article discusses the question whether the Booker decision has breathed new life into the federal parole laws now that the condition precedent for their repeal, adoption of a mandatory sentencing guidelines system, is no longer in effect.
August 9, 2013
How would you advise California to deal with its lingering prison problems?The question in the title if this post is prompted by this new Los Angeles Times article headlined "California prisons could free 1,000 to ease crowding: The state scrambles to relocate thousands of inmates to comply with a court order." Here is the set-up:
So, dear readers, just how would you advise California's policy-makers and law-makers to make sure they finally fix this final prison problem right?
Under court orders to ease prison crowding by the end of the year, California officials are scrambling to relocate 9,600 inmates but may be forced to free roughly 1,000 of them before they have completed their sentences.
Officials say most offenders are likely to remain locked up, in privately owned prisons, county jails and other facilities. But some low-level criminals, as well as seriously ill and elderly inmates, could be released, state plans show.
Last week, the U.S. Supreme Court let stand a three-judge ruling that the prisons remain too crowded and inmate numbers must drop. Gov. Jerry Brown has appealed the judges' order, saying the results could harm public safety, but in the meantime his administration must comply.
Putting inmates on the street would present thorny political problems for Brown, who is widely expected to run for reelection next year and insists that California has done enough to relieve overcrowding. But "the closer we get to the end of the year, the more difficult it becomes" to avoid releases, Brown's corrections secretary, Jeffrey Beard, said in an interview.
The state is working on a deal to move hundreds of prisoners to Alameda County jails in coming weeks, and officials are in talks to rent space at a private prison in Kern County. They are considering reopening two low-security detention centers, also in Kern County. Thousands of other inmates would be in firefighting camps or would be confined in other states.
Many of those steps would be costly — and the state would still need to shed about 1,000 more prisoners. So corrections officials and prison medical personnel are reviewing discharge rules and evaluating inmate cases to determine who could be released. No releases have been scheduled. Officials have not yet detailed all of their plans with the court and are identifying more potential candidates than they may need.
They have already developed new criteria for allowing seriously ill prisoners to be let out. Previously, an inmate needed 24-hour care to qualify; now, officials say, prisoners would no longer have to be bedridden. They could qualify if they have a terminal illness or a severe disability such as Alzheimer's disease or paralysis. Those sentenced to death or life without parole would be ineligible, regardless of medical condition.
About 900 inmates meet the new standards for medical release, according to Joyce Hayhoe, a spokeswoman for the court-appointed receiver who runs prison healthcare. But it is unclear how many of their cases could be vetted by the end of the year or how many would be approved by the state parole board....
New rules for paroling elderly inmates are also in the works, according to the state's court filings. Prisoners could qualify if they are at least 60, have served at least 25 years of their term and are not sentenced to death or life without parole. Others who could be considered for release are prisoners who committed low-level, nonviolent crimes and are not sex offenders required to register their whereabouts after discharge. The process for releasing them could involve expanding credit for good behavior.
Officials say they've identified about 1,200 low-level inmates who have less than a year left in their sentences and are considered less likely than others to commit new crimes. About 500 similar inmates with more than a year left to serve could also be considered for release. If necessary, other prisoners serving time for minor offenses but who are gang members or committed serious infractions behind bars could also be considered, court papers show.
James Austin, a prison consultant working with lawyers who have sued the state over crowding in its lockups, said that with fewer than five months left to meet the judges' order, authorities are unlikely to avoid early releases. "There's no escaping it now," he said.
But even high-risk inmates are routinely released when their sentences end, Austin noted. Letting prisoners go a few months ahead of time won't change their likelihood of reoffending, he said. Beard said he is still hoping to avoid releases altogether, but officials are unsure whether the state can spend money on alternative housing without legislative approval — even though the judges waived any local or state laws that could hamper compliance with their order....
Brown should be building or reopening prisons rather than sending any more inmates to counties, said Abel Maldonado, a Republican former lieutenant governor who may challenge Brown next year and is pushing for a ballot measure to undo some of the governor's prison policies....
The legal and political pressures have put a harsh spotlight on California prisons, long a magnet for controversy. "The nation is watching," said San Bernardino County Dist. Atty. Michael Ramos, a critic of Brown's prison policies. "We better get it right."
August 9, 2013 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20) | TrackBack
Brennan Center assembles lots of note on new mass incarceration webpageI was pleased to just learn that the Brennan Center for Justice at NYU School of Law has this notable new mass incarceration page page on its website. Here is how the page explains the Brennan Center's concerns and efforts:
With 2.3 million Americans behind bars, the criminal justice system is larger than ever. Its growing tentacles have caught almost every demographic subset of our country. The U.S. has less than five percent of the world’s population, yet incarcerates nearly a quarter of the world’s prisoners. The system also has massive hidden economic and societal costs that reverberate throughout society, affecting all of us.
The Brennan Center seeks to reduce mass incarceration through policy and legal reforms to create a more rational system that protects public safety and communities. The Center seeks to eliminate the criminalization of minor behavior, reform selective enforcement policies, institute a proportional system of punishment, and holding all actors in the criminal justice system accountable by ensuring that government dollars are spent on effective, evidence-based programs.
Among the many interesting items already to be found via this page are this Brennan Center letter expressing support for the recently-introduced Smarter Sentencing Act and this Brennan Center letter urging the US Sentencing Commission to focus on incarceration-reducing priorities.
August 8, 2013
A preview of (big?) sentencing news coming soon from AG Eric HolderI am intrigued to see this notable new CNN report headlined "Justice plans sentencing changes for non-violent criminals." The report appears to provide a preview, of sorts, of a big speech discussing sentencing issues that Attorney General Eric Holder is expected to be making on Monday. Here are some of the details:
The Justice Department is preparing an overhaul of how federal prosecutors deal with non-violent criminal offenders in a move that could mark the end of the tough-on-crime era, which began with strict anti-drug laws in the 1970s and accelerated with mandatory minimum prison sentences and so-called three-strikes laws.
The idea is to change the type of sentences that prosecutors seek in cases where instead of prison, offenders could benefit from alternatives such as drug court, a Justice Department official said.
While more flexible approaches to crime have long held support among liberal Democrats, fear of being tarred as weak on crime by Republican opponents has long caused moderate Democrats, particularly those running for president, to avoid the issue.
In recent years, however, some conservatives have begun pushing for some changes, using some of a few of the same buzzwords -- prison-industrial complex, for one -- to describe the inflexibility of the current criminal justice system. That's in part because reducing the prison population also could be a way to reduce budgets and reduce the size of government. More than a third of the Justice Department's annual budget is spent on prisons and detention.
Attorney General Eric Holder is expected to announce the initiative at a speech in San Francisco on Monday. Obama administration officials say the changes they are pursuing will not require congressional approval, although some lawmakers are pushing proposals to take similar steps....
The administration plans to highlight how states such as Texas and Georgia, led by Republicans, are using alternatives to prison to address the issue. By leading the effort, Holder, who has been the focus of criticism for conservatives during his more than four years in office, could find himself on the same side as many of his fiercest Republican critics.
Critics say the current criminal justice system has become bloated with many offenders locked up for non-violent drug offenses or technical probation violations such as not checking in with probation officers, not for committing new crimes.
Holder in an April speech noted the huge economic burden that incarceration carries for federal, state and local budgets: $83 billion in 2009 alone.... Holder, in his April speech to the National Action Network founded by Rev. Al Sharpton, highlighted many of the problems conservatives also cite in the criminal justice system. He noted that many prisoners aren't rehabilitated in prison and reoffend within years of serving their sentences.
"Why I changed my mind on weed"The title of this post is the headline of this lengthy new commentary by Dr. Sanjay Gupta, CNN's Chief Medical Correspondent. Here is how it gets started:
Over the last year, I have been working on a new documentary called "Weed." The title "Weed" may sound cavalier, but the content is not. I traveled around the world to interview medical leaders, experts, growers and patients. I spoke candidly to them, asking tough questions. What I found was stunning.
Long before I began this project, I had steadily reviewed the scientific literature on medical marijuana from the United States and thought it was fairly unimpressive. Reading these papers five years ago, it was hard to make a case for medicinal marijuana. I even wrote about this in a TIME magazine article, back in 2009, titled "Why I would Vote No on Pot."
Well, I am here to apologize. I apologize because I didn't look hard enough, until now. I didn't look far enough. I didn't review papers from smaller labs in other countries doing some remarkable research, and I was too dismissive of the loud chorus of legitimate patients whose symptoms improved on cannabis.
Instead, I lumped them with the high-visibility malingerers, just looking to get high. I mistakenly believed the Drug Enforcement Agency listed marijuana as a schedule 1 substance because of sound scientific proof. Surely, they must have quality reasoning as to why marijuana is in the category of the most dangerous drugs that have "no accepted medicinal use and a high potential for abuse."
They didn't have the science to support that claim, and I now know that when it comes to marijuana neither of those things are true. It doesn't have a high potential for abuse, and there are very legitimate medical applications. In fact, sometimes marijuana is the only thing that works. Take the case of Charlotte Figi, who I met in Colorado. She started having seizures soon after birth. By age 3, she was having 300 a week, despite being on seven different medications. Medical marijuana has calmed her brain, limiting her seizures to 2 or 3 per month.
I have seen more patients like Charlotte first hand, spent time with them and come to the realization that it is irresponsible not to provide the best care we can as a medical community, care that could involve marijuana.
August 7, 2013
"With Holder In The Lead, Sentencing Reform Gains Momentum"The title of this post is the headline of this notable new NPR piece, which includes lots of notable quotes from Attorney General Eric Holder. Here are excerpts:
Sit down with the attorney general to ask him about his priorities, , and he'll talk about voting rights and national security. But if you listen a bit longer, Eric Holder gets to this: "I think there are too many people in jail for too long and for not necessarily good reasons."
This is the nation's top law enforcement officer calling for a sea change in the criminal justice system. And he's not alone. Over the past few weeks, lawmakers have introduced bipartisan measures that would give judges more power to shorten prison sentences for nonviolent criminals and even get rid of some mandatory minimum terms altogether.
"The war on drugs is now 30, 40 years old," Holder said. "There have been a lot of unintended consequences. There's been a decimation of certain communities, in particular communities of color."
That's one reason why the Justice Department's had a group of lawyers working behind the scenes for months on proposals the attorney general could present as early as next week in a speech to the American Bar Association in San Francisco.
Some of the items are changes Holder can make on his own, such as directing U.S. attorneys not to prosecute certain kinds of low-level drug crimes or spending money to send more defendants into treatment instead of prison. Almost half of the 219,000 people currently in federal prison are serving time on drug charges.
"Well we can certainly change our enforcement priorities, and so we have some control in that way," Holder said. "How we deploy our agents, what we tell our prosecutors to charge, but I think this would be best done if the executive branch and the legislative branch work together to look at this whole issue and come up with changes that are acceptable to both."
Late last week, two senators — Illinois Democrat Dick Durbin and Utah Republican Mike Lee — moved in that direction. Their bill, called the Smarter Sentencing Act of 2013, would give judges more discretion to sentence nonviolent criminals below the so-called mandatory minimums. It would also lower mandatory minimums for several drug crimes to lower costs and cut down on crowding in a prison system that's estimated to be operating at 40 percent over capacity.
The chairman of the Senate Judiciary Committee, Vermont Democrat Patrick Leahy, says he'll hold a hearing on mandatory minimums next month. "They all sound like a great stop-crime idea when they were passed," Leahy said on the C-SPAN Newsmakers program Sunday. "Most of them sound better on paper than in practice."
His partner in that effort is Republican Rand Paul, a Tea Party favorite from Kentucky. They've introduced their own legislation, the Justice Safety Valve Act of 2013, to give judges more power to impose lower sentences — and not just in drug crimes. "Doing away with mandatory minimums, giving more discretion to judges, that shouldn't be Republican or Democrat," Leahy added. "It just makes good sense."
The idea has already taken off in nearly two dozen states including Arkansas, Kentucky and Texas, where it won support from prominent conservatives including Grover Norquist, part of a coalition known as Right on Crime. "It's easier to say, 'Let's spend a few dollars a day managing you at your home where you can spend time with your family, where you can work, instead of hundreds of dollars a day, keeping you in a cell,'" Norquist said in a video on the group's web site.
And the Justice Department explicitly pointed to state reform efforts in a letter to the U.S. Sentencing Commission in July. The old system, wrote official Jonathan Wroblewski, is being replaced with the idea that budgets are "finite," prison is a power that should be "exercised sparingly and only as necessary" and that "reducing reoffending and promoting effective reentry are core goals."
August 7, 2013 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (20) | TrackBack
Should prisoners all get iPads?The question in the title of this post is prompted by this intriguing Baltimore Sun story, which is headlined "Gansler proposes tablet computers for inmates: Gubernatorial hopeful says idea would help keep offenders from returning to jail." Here are the details:
Maryland Attorney General Douglas F. Gansler pushed a novel solution Monday for closing what he called the "revolving door" of ex-offenders returning to prisons.
Give inmates tablet computers.
As Gansler envisions it, the proposal would help offenders build both education credentials and social support before they leave prison. The gubernatorial hopeful says the wireless devices would replace brick-and-mortar libraries and classrooms in the state's prison system, providing each inmate with an Android tablet that could connect with e-books, the state's library system, law resources and online learning programs.
They would also allow limited — and monitored — email access, so inmates could connect with family members. "It has to work," Gansler said. "It's common sense that it will work."
The tablet idea is one element of Gansler's 10-part proposal for integrating former inmates into communities. Statistics show that roughly half of the offenders who are released will return to the state's prison system within three years. The most recent state data available puts the rate at 43 percent. Gansler, who presented his plan in Baltimore at the latest in a series of meetings outlining his platform for governor, called the state's approach to re-entry a "policy mess."
The Android proposal drew concern from some in the corrections world, particularly in light of the recent federal indictment of a dozen Baltimore City Detention Center guards, who are accused of smuggling in cell phones to help the Black Guerrilla Family gang run a drug ring.
"There's a lot of challenges with providing Internet access to inmates," said Nancy G. La Vigne, director of the Justice Policy Center at the Urban Institute. "There's a real concern — I think a valid one — that access to the outside can threaten both inmates and staff.
"While it's innovative to think about delivering education with new technology, a lot of things need to be sorted out."
In a presentation to the Corrections Technology Association in June entitled "iPads for Inmates", the Virginia firm HomeWAV LLC listed what it said were the positive benefits: social and job skills, mentoring and rehabilitation. The cons: "gangs," "nudity," "corruption."
"It's a fascinating concept," said Robert Coombs, spokesman for the National Reentry Resource Center, a policy group.
Only a few inmates in Maryland have Internet access, state corrections spokesman Rick Binetti said. All are low-security, pre-release inmates who are permitted to use the Internet only to look for jobs, and only under the direct supervision of correctional officers.
Several states have set up Web kiosks that give limited access to inmates. A company called JPay sells a $49.99 mini-tablet to inmates in prisons in Virginia and Louisiana. Access is limited to music, games and a few other applications.
A New York startup called American Prison Data Systems has been shopping the idea of an indestructible 7-inch Android tablet that states would purchase for inmates' personal use. CEO Christopher Grewe said he expects to finish negotiating pilot projects in three states by the end of 2013. He proposes giving one to each inmate in a low or medium-security prison to limit potential fights. He said they would be designed so that they couldn't be converted into weapons. Each device would come with free access to libraries and legal resources, and cost $500 per year per inmate.
Maryland spends an average of $38,383 per year per prisoner, the Vera Institute of Justice reported last year. Grewe has pitched his idea as a way for states to improve education opportunities for inmates and save money on maintaining expensive classrooms and libraries....
Grewe said that algorithms and a 24-hour center in Ohio would scan all outgoing and incoming email on a 12- to 24-hour delay, and that devices could be heavily restricted or shut off remotely. "We can filter it five ways to Sunday," he said. Prisons, he said, "can't postpone dealing with the digital revolution any longer."
Gansler, in pitching his idea to a room full of people who work with offenders, suggested anyone who has seen the Oscar-nominated film "The Shawshank Redemption" knows libraries can be used as a means of transporting contraband. Replacing them with more secure tablets, he said, would save money and make sense.
"We have the ability in the 21st century to educate children online," Gansler said. "You can learn a language online. … Why can't we educate our offenders?"
August 6, 2013
Eighth Circuit panel, though requiring more explanation, suggests probation could be reasonable sentence when guideline range was 11-14 yearsBecause the Eighth Circuit has a well-earned reputation for being pretty tough on criminal defendants in sentencing appeals in the post-Booker era, I find especially notable its nuanced ruling today in US v. Cole, No. 11-1232 (8th Cir. Aug. 8, 2013) (available here). The start of the panel opinion in Cole sets out the basics of the ruling:
A jury found Abby Rae Cole guilty of conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. § 1349; tax evasion, in violation of 26 U.S.C. § 7201; and conspiracy to commit tax fraud, in violation of 18 U.S.C. § 371. The mail and wire fraud conspiracy conviction stems from her company’s theft of nearly $33 million from Best Buy over a four-year period. The tax fraud conspiracy and tax evasion convictions stem from understating tax liability by more than $3 million between 2004 and 2007 by using various schemes to conceal her company’s true profitability. Cole’s advisory Guideline range was 135 to 168 months imprisonment, but the district court varied downward and sentenced her to three years probation on each count, with all terms to be served concurrently. The government appeals Cole’s sentence, arguing it is substantively unreasonable. Cole cross-appeals, challenging her convictions. We affirm Cole’s convictions but remand her case to the district court to provide a fuller explanation of her sentence.
Co-conspirators much more responsible than Cole for the big fraud here got lengthy sentences (15 and 7.5 years), which seems to help explain why the district court decided to give this defendant such a big break. And, as this final key paragraph of the sentencing discussion reveals, the panel here thinks such a big downward variance could be justified, but needs to be more fully explained:
Because Cole’s probationary sentence represents a “major departure” from the advisory Guidelines range, the court’s brief and contradictory explanation of Cole’s sentence is not sufficient “to allow for meaningful appellate review and to promote the perception of fair sentencing.” See Gall, 552 U.S. at 50. Consequently, we cannot evaluate the government’s claim of substantive unreasonableness at this time, and we remand for the district court to more fully explain the defendant-specific facts and policy decisions upon which it relied in determining that the probationary sentence is “sufficient, but not greater than necessary,” § 3553(a), to achieve the sentencing objectives set forth in section 3553(a).
August 6, 2013 in Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1) | TrackBack
Conservative group ALEC joins the growing calls for sentencing refomAs reported in this Daily Caller piece, headlined "Conservative group advocates sentencing reform,"a notable new public policy group has joined the chorus of right-leaning advocates for significant sentencing reforms. Here are the basics:
Wow. It would now seem that it may only be Bill Otis (and, I fear, still some members of the Obama Administration) who resistant to serious efforts to reform federal sentencing statutes.
A major conservative policy organization has endorsed criminal justice reform, lending further bipartisan support to a bill in Congress that would lessen mandatory minimum sentencing for nonviolent offenses.
The American Legislative Exchange Council, a free-market advocacy group that works with legislators and businesses to craft model legislation, gave its approval to the Justice Safety Valve Act on Monday.
The bill would allow judges to depart from imposing mandatory minimum sentences on nonviolent criminals when they believe different sentences are appropriate. Such a policy would save money by ensuring that only truly dangerous criminals spend decades in prison on the taxpayer’s dime, wrote Cara Sullivan, a legislative analyst at ALEC.
“This helps ensure lengthy sentences and prison spaces are reserved for dangerous offenders, allowing states to focus their scarce public safety resources on offenders that are a real threat to the community,” she wrote in an email to The Daily Caller News Foundation. “This approach, as opposed to simply throwing more dollars at corrections, reduces prison overcrowding while still holding offenders accountable.”
Many of the people sentenced under mandatory minimums were convicted of selling drugs, and committed no violence. Some were found guilty of breaking federal marijuana laws, even though they resided in states where growing and selling marijuana are legal under state laws.
While many conservative lawmakers once held to a “tough on crime” approach to criminal sentencing, the inefficiency and financial waste of imposing harsh sentences on low-level drug offenders has pushed libertarian-leaning elements of the GOP to embrace the Justice Safety Valve Act. Conservatives are also concerned that federal laws interfering with judges’ abilities to set appropriate sentences — and states’ rights — are just another example of overreach on the part of the Obama administration....
Families Against Mandatory Minimums, a criminal justice advocacy group, praised ALEC’s decision to add its voice to the call for sentencing reform. “There is nothing conservative about inefficient, one-size-fits-all sentencing laws that cost billions in tax dollars and offer no public safety benefit in return,” wrote Greg Newburn, Florida project director for FAMM, in an email to TheDC News Foundation. “ALEC’s adoption of a model safety valve reflects the growing consensus among conservative lawmakers that mandatory minimums are ripe for reform.”
Some recent and older related posts about the new federal politics of sentencing:
- "Right on Crime: The Conservative Case for Reform" officially launches
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- "Conservatives latch onto prison reform"
- NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)
- "Prison-Sentence Reform: A bill to give judges flexibility to impose shorter sentences deserves conservatives’ support."
- Wall Street Journal pitch for the Prez to get behind the Justice Safety Valve Act of 2013
- Justice Safety Valve Act gets bipartisan introduction in House of Representatives
- "Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Another notable GOP member of Congress advocating for federal sentencing reform
- "As Prisons Squeeze Budgets, GOP Rethinks Crime Focus"
- Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?
August 6, 2013 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack
August 5, 2013
Dying in federal prison, Lynne Stewart now arguing for compassionate releaseAs reported in this notable new New York Times piece, headlined "Dying Lawyer Asks Judge to Free Her From Prison," the last case being argued by a famous defense lawyer appears to be her own effort to avoid dying in prison. Here are the details:
Lynne F. Stewart, the outspoken former defense lawyer and a polarizing figure in the criminal justice system, is fighting her final battle.
In her long career as a lawyer, she came to be known as a brash and tireless champion of unpopular clients, including Mafia hit men like Salvatore Gravano and terrorist defendants like Sheik Omar Abdel Rahman, the blind cleric convicted of conspiring to blow up the United Nations and other New York City landmarks.
It was that case that led to her own incarceration: she was convicted of smuggling messages from the imprisoned sheik to his violent followers in Egypt, and was sentenced in 2010 to 10 years in prison.
Now, 73 years old and dying from cancer in a prison hospital in Texas, Ms. Stewart has asked a judge to vacate her sentence after the Federal Bureau of Prisons rejected her request for a “compassionate release” under a program for terminally ill inmates.
“Isolated, in hospital, as I now am, I have time to contemplate life and death,” Ms. Stewart said recently in 12-page handwritten letter to the judge. “I do not intend to go ‘gently into that good night,’ as Dylan Thomas wrote. There is much to be done in this world.”
“I do know,” she added, “that I do not want to die here in prison — a strange and loveless place. I want to be where all is familiar — in a word, home.”
The release of a dying inmate must follow a request by the bureau that seeks a compassionate release from a judge. In weighing the issue, the bureau considers the inmate’s condition and whether the inmate could pose a threat outside prison, and also consults with prosecutors, said Ed Ross, a prisons spokesman.
But with the bureau’s rejection, Ms. Stewart’s lawyer, Jill R. Shellow, has gone directly to the judge who sentenced her client, John G. Koeltl of Federal District Court, asking for his help. In court papers, Ms. Shellow says that the circumstances of her client’s imprisonment — having to use a walker to get around, and being placed in shackles, a belly chain and handcuffs when she is transported to an outside cancer center — are “cruel and unusual and excessive” punishment, one of the grounds for which she is seeking Ms. Stewart’s release.
“This is not about the underlying crime,” Ms. Shellow said in a phone interview. “It has nothing to do with Lynne’s conduct. This has to do with how we as a society treat human beings who are dying.”
A spokeswoman for the United States attorney’s office declined to comment. In a brief proceeding last week, which was packed with Ms. Stewart’s supporters, a prosecutor, Andrew S. Dember, said a Bureau of Prisons decision about whether to ask a judge for a compassionate release “is totally their discretion, and is unreviewable by a court.” Judge Koeltl said he would hear arguments on the matter on Thursday....
Mr. Ross, the prisons spokesman, declined to comment on Ms. Stewart’s case, but he said that under new guidelines, prisons officials could now consider for compassionate release inmates with a “terminal, incurable disease whose life expectancy is 18 months or less.” The old policy was 12 months or less, he said.
Ms. Stewart was found to have breast cancer in November 2005; she underwent surgery and a course of radiation followed by hormone therapy that lasted for five years, her lawyer said in court papers. In July 2012, the medical staff at her prison, the Federal Medical Center Carswell, in Fort Worth, detected a mass in her left lung; doctors eventually determined that she had metastatic cancer that had spread to her lungs, lymph system and bones, the papers say.
In April of this year, she filed a formal request with Carswell’s warden for compassionate release, citing her illness and proposing that she be sent to Brooklyn to live with her son and his wife. Under the policy, the Bureau of Prisons must find “extraordinary and compelling” circumstances to justify making such a request to a judge, who has the final say.
In May, the warden recommended that Ms. Stewart’s request be granted, but it was rejected by the bureau in June. It said she was responding well to treatment, was ambulatory and was not suffering from a condition that was terminal within 18 months, the papers say.
Ms. Stewart is asking the bureau to reconsider, Ms. Shellow said on Monday. In her papers, Ms. Shellow argued that the bureau should have given Judge Koeltl the opportunity to act on Ms. Stewart’s application. The papers also cite a recent report by the Justice Department’s Office of the Inspector General, which criticized the Bureau of Prisons for its management of the compassionate release program and said it lacked standards for how much time it took to review inmate requests.
Mr. Ross said the agency had taken steps to expedite the handling of cases. He said that in 2012, the bureau submitted about 40 requests for compassionate release to judges, and all were approved.
Two sharp crime and punishment commentaries from Andrew CohenAndrew Cohen always has sharp and important things to say on a variety of legal and criminal justice issues. But today he is in especially strong form in these two potent commentaries appearing today via The Atlantic:
The Irony of Justice Scalia's California Prison Rant; His dissenting opinion on Brown v. Plata has nothing to do with the subject at hand: prisoners and the Eighth Amendment.
On the Death of John Ferguson; When the sun rose this morning you had every reason to believe that the Eighth Amendment precludes the execution of the insane. When the sun sets tonight you have no such reason to so believe.
Though I am not sure I agree with everything that appears in both of these columns, I am sure that I appreciate the passion and forcefulness with which Andrew Cohen is writing on topics that call for considerably more attention than they are given by most of the media punditry.
"Va. gun crime drops again as firearm sales soar"The title of this post is the headline of this notable big article recently appearing in the Richmond Times-Dispatch. Here are excerpts:
Gun-related violent crime continues to drop in Virginia as the sales of firearms continue to soar, a pattern that one local criminologist finds interesting “given the current rhetoric about strengthening gun laws.”
Major gun crime collectively dropped for a fourth consecutive year statewide, while firearms sales climbed to a new record in 2012 with 490,119 guns purchased in 444,844 transactions — a 16 percent rise over 2011, according to federally licensed gun dealer sales estimates obtained by the Richmond Times-Dispatch.
The proliferation of guns occurred as the total number of major reported crimes committed with all types of firearms in Virginia dropped 5 percent, from 4,618 offenses in 2011 to 4,378 last year, according to Virginia State Police data. Looking back over seven years, total firearm sales in Virginia have risen a staggering 101 percent from 2006 to 2012, while gun-related crime has dropped 28 percent during that period.
“This appears to be additional evidence that more guns don’t necessarily lead to more crime,” said Thomas R. Baker, an assistant professor at Virginia Commonwealth University’s L. Douglas Wilder School of Government and Public Affairs who specializes in research methods and criminology theory.
“It’s a quite interesting trend given the current rhetoric about strengthening gun laws and the presumed effect it would have on violent crimes,” Baker added. “While you can’t conclude from this that tougher laws wouldn’t reduce crime even more, it really makes you question if making it harder for law-abiding people to buy a gun would have any effect on crime.”
But Josh Horwitz, the leader of a national gun-control group, does not find the comparison of gun crime to legal gun sales particularly significant, and views any perceived correlation between the two sets of data as essentially meaningless. “Guns sold incident to a background check are less likely to be involved in crimes than guns sold without a background check,” said Horwitz, executive director of the Coalition to Stop Gun Violence. “So the real question — which I don’t think we really know — is what’s the level of gun sales without a background check?
“In other words, if people who buy those guns and have a background check, and keep those guns and don’t sell them, then you would not expect that those guns would affect the crime rate,” Horwitz said. “The important analysis is not the total number of guns sold with a background check, but rather the number of guns sold without a background check.”...
Baker cautioned against drawing any conclusions that more guns in the hands of Virginians are causing a corresponding drop in gun crime, as some academics and gun-rights supporters have argued. “To substantiate (that) argument, you would need to eliminate a number of other factors that could potentially explain away the relationship of more guns, less crime in Virginia,” Baker said. “Only if the relationship remained after controlling for additional factors could a researcher be more comfortable making the claim that more guns lead to less crime. But what the data does show is that the ‘more guns, less crime argument’ is certainly possible.”...
Although overall gun-related crime dropped 5 percent last year, murders and non-negligent manslaughter deaths committed with firearms rose 6 percent from 190 in 2011 to 201 last year. But killings with handguns dropped 3 percent. Killings involving firearms of unknown type increased 42 percent, from 62 in 2011 to 88 in 2012.
Robberies accounted for the largest drop in gun-related crime, falling 11 percent from 2,935 offenses in 2011 to 2,508 last year. Robberies involving handguns dropped 7 percent from year to year....
Although expansion of background checks is the main goal of the Coalition to Stop Gun Violence, Horwitz said his group supports the tighter controls on firearms that were enacted into law in Colorado and New York after the Sandy Hook Elementary School massacre in Connecticut that killed 26.
He acknowledged that those measures — aside from the background checks — will not affect the gun-related crime rate. “It won’t reduce crime,” Horwitz said. “The point is that it decreases the lethality of crime.” He was referring to so-called assault weapons and high-capacity magazines.
After Reuters report about secret DEA group, should every federal drug prisoner now file new Brady claims?The question in the title of my post is my first reaction to this exclusive new Reuters report, which is headlined "Exclusive: U.S. directs agents to cover up program used to investigate Americans." Here are excerpts:
A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.
Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin - not only from defense lawyers but also sometimes from prosecutors and judges.
The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial. If defendants don't know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence - information that could reveal entrapment, mistakes or biased witnesses.
"I have never heard of anything like this at all," said Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011. Gertner and other legal experts said the program sounds more troubling than recent disclosures that the National Security Agency has been collecting domestic phone records. The NSA effort is geared toward stopping terrorists; the DEA program targets common criminals, primarily drug dealers. "It is one thing to create special rules for national security," Gertner said. "Ordinary crime is entirely different. It sounds like they are phonying up investigations."
The unit of the DEA that distributes the information is called the Special Operations Division, or SOD. Two dozen partner agencies comprise the unit, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security. It was created in 1994 to combat Latin American drug cartels and has grown from several dozen employees to several hundred.
Today, much of the SOD's work is classified, and officials asked that its precise location in Virginia not be revealed. The documents reviewed by Reuters are marked "Law Enforcement Sensitive," a government categorization that is meant to keep them confidential.
"Remember that the utilization of SOD cannot be revealed or discussed in any investigative function," a document presented to agents reads. The document specifically directs agents to omit the SOD's involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony. Agents are instructed to then use "normal investigative techniques to recreate the information provided by SOD."
A spokesman with the Department of Justice, which oversees the DEA, declined to comment. But two senior DEA officials defended the program, and said trying to "recreate" an investigative trail is not only legal but a technique that is used almost daily.
A former federal agent in the northeastern United States who received such tips from SOD described the process. "You'd be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.' And so we'd alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it," the agent said. After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training document reviewed by Reuters refers to this process as "parallel construction."
The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods. "Parallel construction is a law enforcement technique we use every day," one official said. "It's decades old, a bedrock concept."
A dozen current or former federal agents interviewed by Reuters confirmed they had used parallel construction during their careers. Most defended the practice; some said they understood why those outside law enforcement might be concerned. "It's just like laundering money - you work it backwards to make it clean," said Finn Selander, a DEA agent from 1991 to 2008 and now a member of a group called Law Enforcement Against Prohibition, which advocates legalizing and regulating narcotics.
Some defense lawyers and former prosecutors said that using "parallel construction" may be legal to establish probable cause for an arrest. But they said employing the practice as a means of disguising how an investigation began may violate pretrial discovery rules by burying evidence that could prove useful to criminal defendants. "That's outrageous," said Tampa attorney James Felman, a vice chairman of the criminal justice section of the American Bar Association. "It strikes me as indefensible."
Lawrence Lustberg, a New Jersey defense lawyer, said any systematic government effort to conceal the circumstances under which cases begin "would not only be alarming but pretty blatantly unconstitutional." Lustberg and others said the government's use of the SOD program skirts established court procedures by which judges privately examine sensitive information, such as an informant's identity or classified evidence, to determine whether the information is relevant to the defense.
"You can't game the system," said former federal prosecutor Henry E. Hockeimer Jr. "You can't create this subterfuge. These are drug crimes, not national security cases. If you don't draw the line here, where do you draw it?"...
The SOD's role providing information to agents isn't itself a secret. It is briefly mentioned by the DEA in budget documents, albeit without any reference to how that information is used or represented when cases go to court. The DEA has long publicly touted the SOD's role in multi-jurisdictional and international investigations, connecting agents in separate cities who may be unwittingly investigating the same target and making sure undercover agents don't accidentally try to arrest each other....
Since its inception, the SOD's mandate has expanded to include narco-terrorism, organized crime and gangs. A DEA spokesman declined to comment on the unit's annual budget. A recent LinkedIn posting on the personal page of a senior SOD official estimated it to be $125 million.
Today, the SOD offers at least three services to federal, state and local law enforcement agents: coordinating international investigations such as the Bout case; distributing tips from overseas NSA intercepts, informants, foreign law enforcement partners and domestic wiretaps; and circulating tips from a massive database known as DICE. The DICE database contains about 1 billion records, the senior DEA officials said. The majority of the records consist of phone log and Internet data gathered legally by the DEA through subpoenas, arrests and search warrants nationwide. Records are kept for about a year and then purged, the DEA officials said....
As a practical matter, law enforcement agents said they usually don't worry that SOD's involvement will be exposed in court. That's because most drug-trafficking defendants plead guilty before trial and therefore never request to see the evidence against them. If cases did go to trial, current and former agents said, charges were sometimes dropped to avoid the risk of exposing SOD involvement.
Current and former federal agents said SOD tips aren't always helpful - one estimated their accuracy at 60 percent. But current and former agents said tips have enabled them to catch drug smugglers who might have gotten away. "It was an amazing tool," said one recently retired federal agent. "Our big fear was that it wouldn't stay secret." DEA officials said that the SOD process has been reviewed internally. They declined to provide Reuters with a copy of their most recent review.
Condemned Ohio inmate takes care of his own execution a few days earlyIt is likely unfair to criticize (or praise) Ohio corrections officials for the news reported in this local article, headlined "Inmate hangs self in his cell." Still, as the report highlights, the timing of this notable prison suicide is conspicuous:
Why convicted Cleveland killer Billy Slagle hanged himself early yesterday isn't known, but he apparently knew he had little time to act. Slagle, 44, was found in his Death Row cell at the Chillicothe Correctional Institution about 5 a.m., only hours before he was scheduled to go on a round-the-clock watch before his scheduled execution on Wednesday.
He was pronounced dead about an hour after he was found. No other details were released by state prison officials. “We will be conducting a complete investigation,” said JoEllen Smith, spokeswoman for the Ohio Department of Rehabilitation and Correction.
Slagle was scheduled to die by lethal injection at 10 a.m. Wednesday in the Southern Ohio Correctional Facility near Lucasville for the 1987 murder of 40-year-old Mari Anne Pope. Slagle stabbed Pope, a neighbor, 17 times with scissors while she was baby-sitting two young children.
Under state prison protocol, inmates facing the death penalty are placed on around-the-clock watch 72 hours before their scheduled execution — 10 a.m. yesterday for Slagle. Before they are moved to Lucasville, Death Row inmates are required to be observed on regular rounds by corrections officers, with staggered visits not to exceed 30 minutes, Smith said....
Slagle’s defense team was shocked and had no clue he might commit suicide, said one of his attorneys, Vicki Werneke. “We were still litigating in court and had hoped that the execution would have been stopped. There was oral argument scheduled for Monday afternoon,” she told the Associated Press in an email.
Although Cuyahoga County Prosecutor Timothy McGinty sought clemency for Slagle — arguing that, under current law, he would have been given life without parole and not the death penalty — the courts, Ohio Parole Board and Gov. John Kasich disagreed.
Kasich declined clemency, which was Slagle’s best hope to avoid execution. McGinty and Slagle’s attorneys had cited his age — at 18, he was barely old enough for execution in Ohio — and his history of alcohol and drug addiction.
It was the first time a killer about to be executed had killed himself since Ohio resumed capital punishment in 1999. Another inmate, Lawrence Reynolds Jr., 43, of Akron, hoarded and took an overdose of anti-depressant pills that delayed his execution in 2010. He survived and was executed nine days later.
As a fan of personal liberty and autonomy, I tend to favor permitting those prisoners condemned to be executed or to die in prison the opportunity, if clearly competent, the means to commit suicide. But I have no basis for concluding the prisoner here was making a truly informed and competent decision, nor do I fully understand how he had the ready means to hang himself just before going on a pre-execution suicide watch. That all said, and to be especially crass and consequentialist, I suppose as an Ohio taxpayer I ought to a bit be grateful for all the tax-funded time and energy of state employees now saved by there no longer being a contested scheduled Ohio execution this week.