September 14, 2013
"No Prisoner Left Behind? Enhancing Public Transparency of Penal Institutions"The title of this post is the title of this intriguing looking new paper by Andrea Armstrong available via SSRN. Here is the abstract:
Prisoners suffer life-long debilitating effects of their incarceration, making them a subordinated class of people for life. This article examines how prison conditions facilitate subordination and concludes that enhancing transparency is the first step towards equality. Anti-subordination efforts led to enhanced transparency in schools, a similar but not identical institution. This article argues that federal school transparency measures provide a rudimentary and balanced framework for enhancing prison transparency.
Alabama Supreme Court reworks state law for juve killers after MillerAs reported in this effective local article, headlined "Alabama Supreme Court sets out how juvenile killers are to be sentenced," yesterday brought a major state court ruling on how juvenile murderers must be dealt with in the wake of the Supreme Court's Miller ruling. Here are the basics via the news report:
The unanimous 50+ page opinion from the Alabama Supreme Court is available at this link, and here is its critical closing paragraph discussing the factors that are now to be considered by Alabama sentencing judges in juve murder cases:
The Alabama Supreme Court [has] issued a ruling that says state judges can give juvenile killers sentences of life with the possibility of parole under Alabama's current capital punishment law. The court also set out 14 factors judges could use in determining whether to sentence a juvenile convicted of a capital crime to life with or without the possibility of parole.
"This is a great result for the state and its justice system," Alabama Attorney General Luther Strange said in a statement issued this afternoon. "The Court has unanimously agreed with our position that prosecutors can try juveniles for capital murder and seek sentences of life without parole in appropriate cases. This gives prosecutors and judges clarity going forward, and it eliminates the limbo that victims' families have been dealing with in recent months."
The court's ruling came in response to requests by two teens charged with capital murder in two Jefferson Count cases who sought to have their capital-murder indictments dismissed because of a ruling last year by the U.S. Supreme Court. Judges have had two options to sentence people under Alabama's capital punishment law -- death or life without the possibility of parole....
A bill had been presented this spring in the Alabama Legislature. That bill called for giving judges the option of a life sentence with one chance at parole after 40 years. Legislators, however, did not enact that bill before their session ended May 20.
Meanwhile attorneys for the two Jefferson County teens -- Rashad Stoves and Larry Henderson -- had argued before the Alabama Supreme Court to overturn circuit court judges rulings in their cases to dismiss the capital murder indictments pending against them because the courts did not yet have a new law in place....
"What they've done is legislate from the bench," Wendell Sheffield, an attorney for Stoves said this morning of the Alabama Supreme Court's ruling. "They are saying it is within their equitable powers ... They've taken an unconstitutional statute and have attempted to make it constitutional." Sheffield and law partner John Lentine said at this point they are reviewing the court's decision in depth and will decide whether to take the case further.
In its ruling, the court stated that it had the right to delete the portion of the law struck down by the U.S. Supreme Court. The Alabama justices stated that the U.S. Supreme Court did not give guidance on what factors judges should use in sentencing. "It is well settled that should a statute become invalid or unconstitutional in part, the part that is valid will be sustained where it can be separated from that part that is void," the court ruled....
The Alabama justices stated that with their ruling juveniles now will know that, if convicted, they face a sentence of life imprisonment without the possibility of parole as a "ceiling" and life with the possibility of parole as the "floor." To help judges decide whether the sentences should be life with or without parole, the Alabama Supreme Court set out 14 factors the judges should use based on a Pennsylvania court ruling....
Sheffield and Lentine also said that it appears from the ruling that the juvenile sentencing will be done by the trial judge, without a jury's recommendation. In capital cases involving adults in which the death penalty is an option, juries are asked to make a recommendation.
Today's ruling also will be of interest to a number of people already serving life without the possibility of parole sentences in Alabama who were considered juveniles when the crime occurred. Some of those prisoners have already filed appeals seeking to be have their sentences changed in light of last year's U.S. Supreme Court ruling.
We agree with the juveniles that the Miller Court did not delineate specifically which factors to use in sentencing a juvenile convicted of a capital offense. We find helpful Commonwealth v. Knox, 50 A.3d 732 (Pa. Super. Ct. 2012), which ordered that a juvenile sentenced to a mandatory life-without-parole sentence must be resentenced with a consideration of the principles annunciated in Miller. We hold that a sentencing hearing for a juvenile convicted of a capital offense must now include consideration of: (1) the juvenile's chronological age at the time of the offense and the hallmark features of youth, such as immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the juvenile's diminished culpability; (3) the circumstances of the offense; (4) the extent of the juvenile's participation in the crime; (5) the juvenile's family, home, and neighborhood environment; (6) the juvenile's emotional maturity and development; (7) whether familial and/or peer pressure affected the juvenile; (8) the juvenile's past exposure to violence; (9) the juvenile's drug and alcohol history; (10) the juvenile's ability to deal with the police; (11) the juvenile's capacity to assist his or her attorney; (12) the juvenile's mental-health history; (13) the juvenile's potential for rehabilitation; and (14) any other relevant factor related to the juvenile's youth. See generally Commonwealth v. Knox. We recognize that some of the factors may not apply to a particular juvenile's case and that some of the factors may overlap. Nevertheless, we believe that providing the trial court with guidance on individualized sentencing for juveniles charged with capital murder comports with the guidelines of Miller.
September 13, 2013
"After Kerlikowske, What’s Next for America’s ‘War on Drugs’?"
The title of this post is the headline of this lengthy new commentary by Ted Gest over at The Crime Report. Here are excerpts from a piece that draws in large part from a notable new article on the topic appearing in Volume 42 of Crime and Justice:
“No one is happy with American drug policy,” Peter Reuter of the University of Maryland declares in a new overview of a debate that hasn’t changed dramatically in the last three decades. Reuter’s assessment (“Why has American Drug Policy Changed so Little in 30 years”) appears in a sweeping review of U.S. criminal justice published this month: Crime and Justice in America, Volume 42, 1975-2025, University of Chicago Press, 2013)
With the U.S. government awaiting a new “drug czar” — President Barack Obama has nominated current National Drug Control Policy Director R. Gil Kerlikowske to head the federal border protection agency — The Crime Report takes a look at Reuter’s views in some detail. The following summarizes Reuter’s principal arguments, but also includes new material not included in his original essay. The entire book can be ordered here....
Reuter makes [these] major assertions:
Marijuana must be treated separately as a social and criminal justice problem. It hardly touches the central problem of American criminal justice — the high incarceration of minorities — nor does it cause significant health and social harms.
Harm reduction, the idea that governments should pay attention to the harmfulness of drug use (not just to the number of users of drugs) is a big idea that has importantly changed drug policy in much of the Western world. In the United States, among the core harm reduction programs, only methadone maintenance has been accepted.
Legalization, the idea that drugs such as cocaine and heroin should be treated like alcohol and be made available legally under substantial regulatory restrictions, deserves separate discussion. Though Reuter argues it has no appeal to the general public, it attracts a great deal of interest from the educated elite and from some Latin American presidents.
The prevalence of drug use, the most widely reported measure of drug problems, is not a good target for drug policy. Policy should be oriented toward reducing violence, dysfunction, and disease related to drug use and to reducing the use of incarceration and reducing racial disparities in incarceration....
Contrary to the assumptions of many policymakers, there is very little evidence that enforcement can raise prices or reduce availability, the mechanisms through which it might reduce the prevalence of use. During a period of massively increased enforcement intensity (1980-2008), the retail prices of heroin and cocaine both fell about 70 percent.
If drug policy cannot affect prevalence, what can it do? We do know, writes Reuter, that bad policy choices can make drug use, drug distribution and production more harmful. For example, if the police choose to use possession of prohibited syringes as the basis for targeting heroin injectors, they may accelerate the spread of HIV....
The drug problem changes in unforeseen ways with occasional epidemics that are unpredictable in their occurrence and magnitude. For example, the use of diverted prescription drugs constitutes a significant and disturbing public health problem.
Corporate official gets above-guideline sentence for conspiracy to hide safety violationsA helpful reader alerted me to this federal sentencing story from West Virginia which provides a useful reminder that federal judges sometimes use their increased post-Booker sentencing discretion to impose sentences above recommended guideline ranges (and may do so even for a defendant who has pleaded guilty and cooperating with authorities). Here are the notable particulars from a lengthy article about a notable white-collar sentencing that followed a high-profile workplace disaster:
A former longtime Massey Energy official will spend 3 1/2 years in prison for his admitted role in a decade-long conspiracy to hide safety violations from federal safety inspectors. David C. Hughart, 54, of Crab Orchard, was sentenced Tuesday afternoon to 42 months in jail and three years of supervised release after he pleaded guilty to two federal charges as part of an ongoing federal probe of Massey's safety practices.
U.S. District Judge Irene Berger ordered Hughart to serve a full year more than the high end of the 24- to 30-month recommended under advisory federal sentencing guidelines. The judge said the stiffer sentence was needed to account for the safety risks Hughart's crimes created and to serve as a warning to other mining officials not to put production before safety. "This sentence will promote respect for the law," Berger said.
The Hughart sentencing is another step forward as U.S. Attorney Booth Goodwin and his top assistant, Steve Ruby, continue what is likely the largest criminal investigation of a coal-mine disaster in modern times. The probe started with the deaths of 29 miners on April 5, 2010, in an explosion at Massey's Upper Big Branch Mine in Raleigh County, and has so far prompted four convictions and expanded well beyond Upper Big Branch....
Hughart is cooperating with prosecutors, having pleaded guilty to one felony count of conspiracy to defraud the government by thwarting U.S. Mine Safety and Health Administration inspections and one misdemeanor count of conspiracy to violate MSHA standards.
During a plea hearing in February, Hughart had implicated former Massey CEO Don Blankenship in the conspiracy, and Hughart's family has said Hughart is being wrongly scapegoated while Blankenship and other top Massey executives have faced no criminal charges. "He was a slave to this industry, and Don Blankenship will never see the inside of a courtroom," Hughart's son, Jonathan Hughart, told reporters after Tuesday's sentencing hearing.
Through his lawyer, Blankenship has denied any wrongdoing. And on his blog, Blankenship has said Hughart lied about him and was fired from Massey for drug use and stealing from the company.
Prosecutors have said that former executives and board members of Massey "may be, or may become" targets in the ongoing federal criminal investigation....
Earlier Tuesday, Hughart's $10,000 personal recognizance bond was revoked by U.S. Magistrate Judge R. Clarke VanDervort after Hughart was arrested on Aug. 30 on charges of possession of painkillers and anti-anxiety medication without a valid prescription. Hughart's bond required him to comply with all local, state and federal laws....
While Hughart hasn't been convicted of the drug charges, the arrest increased his recommended sentence under federal advisory guidelines by nine months. Hughart's lawyer, Michael R. Whitt, had urged Berger to issue a lighter sentence, arguing that Hughart's crimes could not be linked to any mining injury -- let alone to the Upper Big Branch Disaster -- and that his client was caught up in the "corporate culture" at Massey.
Whitt told Berger that Hughart's life has been ruined, with him going from an affluent lifestyle and a six-figure mine official salary to losing his home and becoming essentially destitute. "I think he has the message already," Whitt said. "He already knows without spending another day in jail."
Prosecutors, though, had asked for a stiff sentence, noting the "risk to human life and health" created by the conspiracies that Hughart participated in at Massey. "The defendant risked the lives and health of hundreds of coal miners," Ruby told Berger during Tuesday's hearing.
Previously in the Upper Big Branch probe, a former miner at the operation, Thomas Harrah, was sentenced to 10 months in jail after he admitted to faking a foreman's license when he performed key mine safety examinations at the mine between January 2008 and August 2009, and then lied to investigators about his actions.
Berger sentenced a former Upper Big Branch security director, Hughie Elbert Stover, to 36 months in jail after Stover was convicted of two felonies: making a false statement and obstructing the government probe of the mine disaster.
And in January, the judge sentenced former Upper Big Branch superintendent Gary May to 21 months in jail and a $20,000 fine after he pleaded guilty to plotting to skirt safety rules and cover up the resulting hazards....
During Tuesday's hearing, Hughart apologized for his actions and told Berger he had learned from his early days as a miner that "advance notice" of inspections was the way things were done. "I accepted that as the practice, and I understand now it is a serious issue, and it is against the law," Hughart said.
Berger noted previous evidence in the Upper Big Branch cases that suggested MSHA inspectors knew about -- and perhaps even cooperated with -- mine operators having pre-inspection notice. "Advance notice was apparently a common practice in the industry," Berger said. "It's difficult to believe that the only people who were unaware of these practices were the MSHA inspectors."
Terry Ellison, whose brother, Steve Harrah, died at Upper Big Branch, attended Tuesday's court proceedings. "I came for the 29 miners," Ellison said. "I don't want them to be forgotten. There was no reason they should have been killed that day."
September 13, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack
September 12, 2013
Judicial Conference writes to Prez Obama about crisis in funding court operationsAs reported via this Politico story, headlined "Judiciary sends Obama budget plea," the Judicial Conference of the United States has written directly to Prez Obama to lament the impact of sequestration and budget cuts. The letter to the Prez is available at this link, and here are passages from the letter which especially stress criminal justice concerns:
Several years of flat funding, followed by the sequestration cuts that took effect March 1, 2013, have had a devastating impact on court operations nationwide.....
The funding reductions have also put public safety at risk. Staffing in probation and pretrial services offices is down seven percent since 2011 at a time when the number of convicted offenders under the supervision of federal probation officers hit a record 187,311 in 2012 and is on pace to reach 191,000 in 2014. In addition, a 20 percent cut had to be made to the funding for drug, mental health, and sex offender treatment, as well as to drug testing services for offenders, searches, and electronic and GPS monitoring.
But the most significant impact of the budget cuts and sequestration thus far has been the reduction in funding for Defender Services. Federal defender organizations (FDOs) and private panel attorneys fulfill the mandate of the Sixth Amendment and the Criminal Justice Act (CJA). Because the Constitution requires that we must provide counsel for indigent defendants, the only options for absorbing the more than $50 million cut to the Defender Services account are reducing FDO staffing levels through layoffs and furloughs, or deferring or reducing payments to private CJA panel attorneys.
For FY 2013, the Judiciary applied the $51 million reduction to Defender Services by requiring a suspension of payments to private panel attorneys for the last three weeks of the fiscal year, while the FDOs had to make staffing reductions and impose furloughs on remaining employees for an average of 15 days over the last half of the fiscal year. Between October 2012 and June 2013, FDOs downsized by more than 6 percent. Since March, their remaining employees have been furloughed for over 12,500 days. We can already see the impact of FDO staffing reductions in our courts. As one example, the federal defender office in New York recently asked to postpone the trial of alleged terrorist Sulaiman Abu Ghaith, Osama bin Laden’s son-in-law.
Concerned about an impending shortfall of funding in FY 2014 for Defender Services, we recently took emergency action to preserve the indigent criminal defense function by committing to provide FY 2014 funding for federal defender organizations at a level sufficient to maintain nationwide the projected on-board staffing as of the end of September 30, 2013. Absent the receipt of additional funding in FY 2014, achieving this objective will require reductions to the private panel attorney program. Specifically, up to four weeks of panel attorney payments that otherwise would be payable in FY 2014 will have to be deferred into FY 2015. In addition, the panel attorney compensation rate, for work performed from September 1, 2013, through September 30, 2014, will be reduced on a temporary emergency basis, by $15.00 per hour, for capital and non-capital case representations.
Under Article III of the Constitution, the Federal Judiciary is responsible for fairly and effectively adjudicating criminal and civil cases. We do not have projects or programs to cut; for us, the cuts directly impact people. We must adjudicate all cases that are filed with the courts, we must protect the community by supervising defendants awaiting trial and criminals on postconviction release, we must provide qualified defense counsel for defendants who cannot afford representation, we must pay jurors for costs associated with performing their civic duty, and we must ensure the safety and security of judges, court staff, litigants, and the public in federal court facilities. Our workload does not diminish because of budget shortfalls.
Two decades into experimentation, what is really known about medical marijuana practices?Soon it will be a full twenty years since voters in California passed Proposition 215 to make that state the first to allow the medical use of marijuana. As of Fall 2013, a total of 20 states and the District of Columbia have passed similar laws. (Here is a very helpful NCSC list with links to all the legal basics.) And yet, even now that nearly half of all US jurisdictions have legalized medical marijuana, I am struck by how little is really known about about medical marijuana practices.
The website ProCon.org has via this web portal with lots and lots of helpful information and links on the topic of medical marijuana, and the site lives up to its claim of presenting "facts, studies, and pro and con statements on questions related to whether or not marijuana should be a medical option." But notably absent from this site (or really any others I could find) was any serious and balanced "on the ground" research concerning the practical realities of "medical" marijuana use and abuse in any particular jurisdiction or across the United States.
This ProCon.org webpage, titled "How Many People in the United States Use Medical Marijuana?," has a very interesting state-by-state accounting of "the actual number of patients holding identification cards in the states (and District of Columbia) with mandatory registration" which reports that there are over 1 million registered medical marijuana patients. But these basic registration numbers, of course, do not tell us anything about who are these registered patients and for what purposes and how often they use marijuana as medicine.Similarly, a lot of pro-reform organizations like Americans for Safe Access (ASA) and Marijuana Policy Project (MPP)and National Organization for the Reform of Marijuana Laws (NORML) have lots of information about medical marijuana laws and lots of resources and arguments for would-be advocates. But hard data on medical marijuana patients and their practices do not leap off the page at these locales.
As noted in this recent post at Marijuana Law, Policy & Reform, a prominent opponent of modern marijuana reforms called medical marijuana "a laughable fiction" noting that in California, a the typical user is a 32-year-old white man with no life-threatening illness but a long record of substance abuse; in Colorado, 94% of medical marijuana patients just pain as the justification for their pot prescription; and in Oregon, only 10 practitioners write the majority of all marijuana prescriptions in the state. And yet, many prominent doctors have come to acknowledge, as stated by the reknown Dr. Sanjay Gupta in this pro-pot CNN piece, that there are many "legitimate patients who depend on marijuana as a medicine, oftentimes as their only good option."
Because the medical and scientific communities are still vigorously debating the potential health benefits and harms of marijuana and its chemical compounds, and especially because all marijuana distribution and use remains illegal under federal law, I suppose I should not be too surprised that it is hard to find much "on the ground" research concerning the practical realities of "medical" marijuana use and abuse in any particular jurisdiction or across the United States. But I find this reality disappointing, and I know that I would sure like to know a whole lot more about medical marijuana patients and their practices. (And, in class today in my "Marijuana Law, Policy & Reform" seminar, I hope to steer our discussion of medical marijuana to the question of what students think the average likely voter would want to know about the practical realities of "medical" marijuana before supporting any reform to the legal status quo.)
Cross-posted at Marijuana Law, Policy and Reform.
US Sentencing Commission releases more documents in its great new "Quick Facts" seriesI am so very pleased to see and to be able to report that the US Sentencing Commission is continuing to produce a steady stream of documents as part of its terrific new series of reader-friendly "Quick Facts" publications. (Regular readers may recall from this prior post that the USSC describes these publications as a way to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.)
As I have said before, I think this is a very valuable new innovation coming from the USSC, and I have already learned a lot and benefited greatly from these latest two publications in the series:
- Marijuana Trafficking Offenses (September 2013)
- Methamphetamine Trafficking Offenses (September 2013)
September 12, 2013 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack
California legislature quickly approves new plan to deal with prison overcrowdingThe old saying is "Where there is a will, there is a way." The proper saying in California concerning prison overcrowding might be "Where there is a prisoner-release federal court order, there becomes the will needed to find a way." I say this based on this latest legislative news via the Los Angeles Times coming from the Golden State, headlined "Legislators give bill on prisons quick passage: Measure aimed at easing crowding by rehabilitating offenders goes to the governor." Here are excerpts:
A plan to ease prison crowding is on its way to Gov. Jerry Brown after winning swift approval Wednesday from both houses of the Legislature. The fast-tracked bill, announced Monday, addresses a federal court order requiring the state to shrink its prison population by about 9,600 inmates by the end of the year.
Lawmakers also completed work on measures that would further restrict firearms, increase penalties for sex offenders who remove their GPS monitoring devices and relax rules on billboard advertising.
Under the prison deal, brokered by the governor and legislative leaders, the state will seek extra time to comply with the court. If an extension is granted, officials will use it to expand rehabilitation programs aimed at keeping offenders from returning to prison after they have served their time.
If judges reject the request, the state will relocate thousands of inmates to privately owned prisons and other detention facilities. Moving the prisoners would cost $315 million in the current fiscal year and is projected to cost $415 million in each of the two subsequent years.
Senate President Pro Tem Darrell Steinberg (D-Sacramento), who initially had clashed with Brown and Assembly Speaker John A. Pérez (D-Los Angeles) over how to meet the court's demand, called passage of the bill a "pivotal moment," potentially shifting California's efforts toward a long-term solution to prison overcrowding.
Senate minority leader Robert Huff (R-Diamond Bar) said the proposal was needed to avoid the possible release of inmates before their sentences were up. "It gives us certainty that there is no early release," Huff told his colleagues.
Some Democrats pushed back on the price tag for housing in the bill, SB 105, by Steinberg and Huff. One of those Democrats, Sen. Noreen Evans of Santa Rosa, said during the debate that after years of state belt-tightening, "I simply cannot in good conscience give a $315 million blank check to the director of our corrections system. "I don't believe it is fiscally responsible," Evans said. "It will not provide the reforms that we want."
If the state does not relocate prisoners, at least $75 million of that money will go to rehabilitation programs such as drug treatment and mental health services. The rest of the $315 million will be divided between rehab programs and the state's general fund....
On another law-enforcement issue, legislators approved a measure, spurred by reports in The Times, about a growing number of sex offenders cutting off the electronic monitoring devices the law requires them to wear. Those who do so would face a mandatory 180 days in jail under SB 57 by Sen. Ted Lieu (D-Torrance), which went to Brown. Many such offenders get little or no time behind bars now.
September 11, 2013
Could GOP Senator John Cornyn be the next big advocate for reducing federal prison terms?The question in the title of this post is prompted by this very interesting new piece by Greg Sargent via the Washington Post under the headline "Where are Republicans on sentencing reform?." Here are excerpts:
When Eric Holder announced recently that he is pursuing an ambitious package of sentencing reforms, including proposals to reduce “mandatory minimum” sentences, there was a widespread sense it could attract broad bipartisan support. The thinking was that agreement cuts across party lines that our decades-long experiment in mass incarceration has been a huge policy failure.
Now Dem Congressional aides are asking: Will leading Republicans step forward and support reform?...
I can report a new development on this front. I’m told GOP Senator John Cornyn is working on a separate but related package of prison-reform legislation that could help bring more attention to the overall debate. According to his office, Cornyn is developing proposals designed to reduce recidivism rates and time served in prison. The ideas are not sentencing reform and would not reduce the sentences themselves — as would Holder’s proposals — but instead would give prisoners ways to reduce already-doled-out sentences.
The policies, which are modeled on similar reforms in Texas, would allow certain types of non-violent prisoners to do various programs — such as recidivism reduction programming, work programs, or other productive activities. Prisoners at low risk of recidivism could trade in the time they do in such programs to convert their remaining time in prison into time in halfway houses or home confinement.
While these ideas don’t attack the problem in precisely the same way the ideas pushed by Holder and Dems do, there is overlap. As Cornyn’s office notes, their goal would be to reduce the amount of time people spend in prison, reduce recidivisim, and reduce costs. Cornyn’s office says he will try to round up Republican and Democratic support for them and possibly introduce them this fall. If that happens, it could help ignite a conversation on the broader set of issues here....
But we have yet to hear from leading Republicans whose support would be required to push this debate forward, such as Senators Orrin Hatch and Jeff Sessions, both of whom are on the Judiciary Committee and (to my knowledge) have not seriously weighed in on Holder’s push. The question is whether establishment Republicans are going to have a real voice on this issue this fall. Let’s hope so.
I am pretty sure there are more than a few folks within the Justice Department who have advocated (both formally and behind the scenes) for expanding "good time" credits and creating "earned time" credits in order to make it much easier for nonviolent federal prisoners "to reduce already-doled-out sentences." Consequently, it is not so much the specifics of Senator Cornyn's working plan that are such a big deal, but rather that someone without a obvious Tea Party history is working on a federal prison reduction plan at all. Kudos to Senator Cornyn, and I hope joins the ever-growing chorus of GOP voices calling for federal criminal justice reforms.
Some old and newer related posts about AG Holder's speech and the "new politics" of sentencing reform:
- "With Holder In The Lead, Sentencing Reform Gains Momentum"
- Lots of (mostly positive) reactions to AG Holder's big sentencing speech
- Notable inside-the-Beltway discussion of modern sentencing politics
- "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?
September 11, 2013 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack
"The Geography of Mercy: An Empirical Analysis of Clemency for Death Row Inmates"The title of this post is the title of this quite-interesting looking empirical piece by Matthew Heise now available via SSRN. Here is the abstract:
Conventional wisdom notes persistent regional differences in the death penalty’s application with southern states’ appetite for capital punishment exceeding that of non-southern states. Scholars analyzing the distributions of death sentences and state executions find a geographic influence. Less explored, however, is a possible regional difference in the distribution of executive clemency even though clemency is an integral component of criminal justice system that includes capital punishment. If geography influences the distribution of the death penalty, geography should also influence the distribution of clemency.
Data, however, reveal some surprises. Using a recently-released data set of all state death row inmates from 1973-2010, this paper considers whether clemency is exercised in southern and non-southern states in systematically different ways. No statistically significant differences exist between southern and non-southern states when it comes to clemency, even though southern states were more prone to execute and less prone to disturb death sentences through reversal on appeal than northern states. When it comes to the influence of geography in the death penalty context, the findings provide mixed support and convey a complicated picture.
Controlled Substances # 5: Are Drug Crimes “Victimless”?Alex Kreit, guest-blogging on his new casebook, Controlled Substances: Crime, Regulation, and Policy (Carolina 2013):
My last post touched on some of the legal and policy questions that come with investigating crimes where there is no complaining witness. The absence of a complaining witness leads some to refer to drug crimes as “victimless.” This description is accurate in the narrow sense that parties to a drug transaction don’t have an incentive to report the crime to the police.
But does that fact have any moral relevance?
Drug prohibition offers a great platform for examining the theories of punishment. Though we may disagree about how much punishment a thief, a killer, or a drunk driver should receive, few question that theft, murder, and driving under the influence should be against the law. By contrast, a number of theorists, policy analysts, and (I’ve found) law students believe that the criminalization of some or all drugs is unjust and/or unworkable. Of course, many others think that punishing drug manufacture, use and sale is a moral imperative.
The diversity of student views on drug prohibition can make for some very fun and rewarding classroom discussion. The second chapter of my casebook focuses on this debate, with materials that mix the theoretical with the real world.
The book divides coverage into two sections, roughly tracking deontological and consequentialist arguments. The first section (which I’ll focus on in this post) engages the “victimless” crime debate and asks whether drug criminalization is just. The second section asks whether drug criminalization works.
I try to draw students into the “victimless” crime debate with a 2011 case — Wisconsin v. Hoseman — that presents the issue in an engaging and, I think, somewhat unexpected setting. The case centers on a marijuana grower who was thoughtless in more ways than one. Hoseman rented an 1885 Victorian home and converted it into a six-figure marijuana business. But there was one problem for Hoseman. Apparently between tending to the plants and selling the product, he forgot to pay the rent!
After several months, the home’s owner flew back to Wisconsin from Las Vegas (where he was living) with plans to start an eviction action. Once the owner discovered Hoseman’s marijuana grow operation, however, he decided to call the police instead. Hoseman was convicted of manufacturing marijuana and ordered to pay the home’s owner over $100,000 pursuant to Wisconsin’s victim restitution statute.
Despite overwhelming evidence of damage to the home, Hoseman argued that marijuana manufacture is a “victimless” crime and that the home’s owner was not a “victim” as the term is defined in Wisconsin’s restitution statute.
Hoseman isn’t a very sympathetic character. And, not surprisingly, the Court disposed of his arguments in short order, reaching the “inescapable conclusion that the actions taken in furtherance of the conspiracy to manufacture marijuana caused the damage to the resident.”
The case poses a real challenge for students who believe that drug crimes are victimless. Sure, Hoseman’s customers aren’t likely to call the police, but that doesn’t mean he isn’t causing harm to others. In this case, there’s no doubt that Hoseman’s marijuana operation harmed the owner of the Victorian home. In other cases, a drug user may harm their child through neglect. With all these victims, how can anyone say that drug crimes are “victimless” with a straight face?
After I present students with this take on things, I try to lead them to a possible counter-argument: the home’s owner was a victim of “vandalism,” not a victim of “marijuana manufacture.” It certainly would have been possible for Hoseman to grow marijuana without damaging the Burbeys’ home by, for example, growing a smaller number of plants or designing his operation with greater care. Similarly, Hoseman could have caused just as much damage to the Burbeys’ home if he had grown a legal plant (say, tomatoes) in the same fashion as he had grown the marijuana.
This discussion of Hoseman nicely sets up the deeper examination of these issues that follows, relying on more theoretical materials including the obligatory excerpt of On Liberty, as well as excerpts from articles by Bernard Harcourt, Doug Husak, Steven Calabresi, and Dan Kahan.
I always find these class sessions to be some of the most enjoyable in the course. But they can also be the toughest. Many students will come to this debate with firmly held views that are often driven by personal experiences (from a bad encounter with the police to seeing a loved one struggle with addiction.) For that reason, when I teach this material, my goal is always to try and gently challenge the students to better understand and critically reassess their own beliefs.
Prior post in series:
- Professor Kreit guest-blogging on "Controlled Substances: Crime, Regulation, and Policy"
- Controlled Substances # 1: Teaching Drug Possession
- Controlled Substances # 2: Identifying the Kingpin: Easier Said than Done
- Controlled Substances # 3: Measuring Culpability by Measuring Drugs?
- Controlled Substances # 4: Investigating "Victimless" Drug Crimes
Will second federal death sentence stick for cop killer Ronell Wilson?The question in the title of this post is prompted by this latest news about a high-profile (and already long-running) federal capital case. The New York Times headline for this story is "For the Second Time, a Killer of Two Detectives Is Sentenced to Death," and here are the details:
They sat in silent expectation on Tuesday afternoon, scores of people on the long wooden benches in the largest and most hallowed space in the federal courthouse in Brooklyn, all to witness the rare spectacle of a man, Ronell Wilson, being sentenced to death.
There were the police officers who had known the two undercover detectives killed by Mr. Wilson on Staten Island in 2003; members of Mr. Wilson’s family and the family of one of his victims; prosecutors and observers....
The judge, Nicholas G. Garaufis of Federal District Court in Brooklyn, turned to the prosecutors and then Mr. Wilson’s defense team. They declined to speak. And then he turned to Mr. Wilson, who stood and faced those relatives of the victims who were present.
“As I said in my previous allocution, how deeply sorry I am for the pain that I caused upon you and your family,” he said haltingly, referring to statements he made at his first sentencing. “I remain with the same feeling as before. I would like to end on this note: error is human but to forgive is divine.”
He used the rest of his time to criticize his lawyers, who were sitting on either side of him. He has 14 days to file a notice of an appeal.
At the trial in July, jurors learned how Mr. Wilson, 31, killed the detectives, James V. Nemorin and Rodney J. Andrews, shooting each in the back of the head during a botched gun sting operation. Prosecutors presented evidence that Mr. Wilson, whose previous death sentence, in 2007, was struck down, seemed to escape punishment during his time in jail, where he intimidated weaker inmates and sneaked into private rooms to have sex with a correction officer, with whom he fathered a child.
The jury sent him back to death row. H e is the only person in New York to be sentenced to the federal death penalty in more than 50 years. On Tuesday, Judge Garaufis read from a lengthy statement before formally issuing the sentence. He pointed to the “viciousness with which Mr. Wilson murdered Detectives Nemorin and Andrews and Mr. Wilson’s recent behavior in prison.” He said Mr. Wilson showed a “continuing lack of remorse and disregard for authority.”...
Outside court, a lawyer for Mr. Wilson, David Stern, approached several news cameras. “This demonstrates how little we’ve evolved since biblical times,” Mr. Stern said of the sentence. “This is a really sad day for me because of my failure.”
Sounds to me like one (of surely many) arguments that will be pursued in future appeals will be the claim that Wilson's lawyers were constitutionally ineffective. I doubt such claims will prevail, but I also doubt such claims will be conclusively rejected for a decade or longer. Federal capital justice may be sure in this case, but it certainly is not swift.
September 10, 2013
Reformers claim California three-strikes reform is reducing excessive imprisonment without endangering publicI am very pleased to see this new story out of California following up on an important example of voters directly embracing "smart" versus "tough" sentencing reform. The piece is headlined "Prop. 36's '3 strikes' change working, lawyers say," and here are excerpts:
Ten months after Californians voted to ease the state's "three strikes" law by exempting lesser offenders from life sentences, drafters of the ballot measure said Monday it's working just as they predicted -- reducing unnecessary imprisonment without endangering the public.
In fact, the 1,000 inmates released so far under Proposition 36 are committing new crimes at a far lower rate than other newly freed inmates in California, lawyers at Stanford's Three Strikes Center and the NAACP Legal Defense Fund said at a media briefing.
Those three strikes prisoners have been free for an average of four months, and fewer than 2 percent have been charged with new crimes, mostly misdemeanors and all relatively minor offenses, the report said. By contrast, it said, 16 percent of newly freed inmates in California are charged with new crimes in the first 90 days.
Opponents' prediction of "blood in the streets was hyperbole," said David Mills, a Stanford law professor who founded the Three Strikes Center. "Millions of dollars have been saved and many lives changed, hopefully for the better." He said the state provides some support for rehabilitation and training of other released prisoners, but offers no such assistance to those released under Prop. 36.
More than 2,000 additional people with third strikes have asked a judge for release under Prop. 36, including more than 850 in Los Angeles County, which is processing the cases slower than other counties, said Mike Romano of the Three Strikes Center.
The report was released on the same day that Gov. Jerry Brown and legislative leaders announced agreement on a proposal to reduce California's prison population by nearly 10,000 inmates over three years, rather than the Dec. 31 deadline set by a federal court. The plan would cost $200 million a year for local drug treatment and other rehabilitation programs, which are designed to lower the prison population over time, if the court agreed to extend the deadline. If not, Brown plans to spend $315 million a year to lease cells in jails and private prisons where current prison inmates would be transferred....
Prop. 36, passed with a 69 percent majority in November, abolished life terms for criminals whose third strikes were neither serious nor violent and instead sentenced them to twice the normal term. Those reductions did not apply, however, to defendants who had previous convictions for sexual assaults and some other crimes or violence or drug trafficking.
Inmates serving 25 years-to-life terms for third strikes that were neither violent nor serious can seek to have their sentences reduced. Before release, a judge must decide, based on the prisoner's record and prison conduct, that he or she does not pose an unreasonable risk to the public. Prosecutors can object to release but cannot veto it.
Though not made so clear in this article, the Stanford Law School Three Stikes Project has released this effective (and short) Progress Report (which was co-published by the NAACP Legal Defense and Eduction Fund) to mark the 1,000th inmate released under the Three Strikes Reform Act of 2012 ("Proposition 36"). Here is part of the report's abstract:
Fewer than ten months after the California electorate voted overwhelmingly in favor of Proposition 36 in November 2012, over 1,000 inmates have been resentenced and released pursuant to its provisions. Although many prisoners have been resentenced, there are still more than 2,000 eligible cases outstanding, including over 800 unresolved eligible claims in Los Angeles County alone.
This Report shows that the recidivism rate of prisoners released under the Proposition 36 (2 percent) is well below California's statewide average (16 percent). The Report also presents individual success stories of some of those resentenced and released.
Finally, this report proposes recommendations to address outstanding issues regarding the proposition’s implementation, including expediting the review of over 2,000 prisoners still waiting for their cases to be resolved under Proposition 36; ensuring that prosecutors and public defenders have adequate resources to litigate those cases; and providing better housing, drug treatment, and job training opportunities for prisoners reentering the community.
You be the federal sentencing judge: "Newlywed Admits to Pushing Husband off Cliff"The title of this post is drawn from the headline of this notable new local "real crime" story that is all the buzz this morning in lots of national media outlets. Based on the reported facts reprinted below, I am very interested in hearing reader instincts about what might be a fitting federal punishment for this killer bride (who is in federal custody because she committed her crime at a national park):
The wife of a 25-year-old Kalispell man, who was found dead in Glacier National Park in July, is now charged with his murder. Jordan Linn Graham, 22, appeared in federal court in Missoula on Monday on a charge of second degree murder in the death of her husband, Cody Lee Johnson.
Court documents allege the newlywed wife pushed her husband off a cliff in Glacier National Park during an argument just a week after they were married. Charging documents reveal Jordan Linn Graham told a friend she was having second thoughts about getting married to Cody Lee Johnson. Graham then told her friend she intended to discuss the matter with Johnson that night, Sunday, July 7. She followed up with a text message that read, "But dead serious. If you don't hear from me at all again tonight, something happened."
The next day, Monday, July 8, Johnson was reported missing when he failed to show up for work. Around 8:30 p.m. on Thursday, July 11, a Glacier National Park ranger was dispatched to the Lake Mcdonald Camp Store for a visitor reporting a dead body. The affidavit states that Graham was identified as the person who told the ranger she found a dead body.
Johnson's body was recovered the next day below a popular viewpoint on the Going-to-the-Sun Road called "The Loop." Graham was interviewed by FBI special agents on July 16, which was nearly one week after the disappearance of her new husband. It was then that she admitted to law enforcement that she lied about Johnson's death.
She told the FBI agent she and her husband were arguing on July 7 as they walked the Loop Trail. Documents say at one point, she turned to walk away, but Johnson grabbed her arm. Graham said she turned around and removed his hand from her arm. She went on to say that "she could have just walked away, but due to her anger, she pushed Johnson with both hands in the back and as a results, he fell face first off the cliff." During an initial interview with law enforcement, Graham said that Johnson left the house late with friends in a dark-colored car late on the night in question.
Graham faces a federal charge of second degree murder. If convicted, she could face life in prison.
The U.S. Sentencing Guidelines provide a base offense level of 38 for second-degree murder in section 2A1.2, which corresponds to an advisory guideline sentencing range of just under 20 to 25 years (assuming no significant criminal history). But I would expect a guilty plea here which alone, thanks to an acceptance of responsibility downward adjustment, could reduce the advisory range to 14 to 18 years. That said, the defendant's prior lies about the crime could lead to an obstruction of justice enhancement, and it is especially interesting to consider whether federal prosecutors could or should also argue for another offense level upward adjustment here based on abuse of a position of private trust.
Of course, the defendant might be able to secure a guilty plea to only a voluntary or involuntary manslaughter charge, which could and would alone dramatically reduce the applicable guideline sentence range (as evidenced here and here), perhaps even to a guideline level so low that the advisory range might even permit a within-guideline sentence involving an alternative to incarceration. And, of course, with the federal sentencing guidelines only advisory, a federal sentencing judge could surely develop under various 3553(a) factors various arguments to justify a sentence perhaps as high as life and as low as straight probation.
Though I am not teaching my upper-level sentencing course until next semester, I sincerely hope (and somewhat expect) that this case will stay in federal court and stay in the headlines for some time. As the discussion above is meant to highlights, this case serves as an interesting and accessible example of just how much discretionary sentencing play there is in the "joints" of the modern federal sentencing system for both litigants and judges.
UPDATE: The FBI affidavit which provided the basis for charges in this case is now available via this link.
September 10, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (22) | TrackBack
September 9, 2013
What questions should be central to Senate Judiciary Committee Hearing on "Conflicts between State and Federal Marijuana Laws"?Though perhaps overshadowed by foreign policy issues these days, on Tuesday September 10, 2013 at 2:30pm, as detailed at this official webpage, there will be a hearing before the United States Senate Committee on the Judiciary on “Conflicts between State and Federal Marijuana Laws.” Here is the official agenda/hearing list:
- The Honorable James Cole, Deputy Attorney General, U.S. Department of Justice
- The Honorable John Urquhart, Sheriff, King County [Washington] Sheriff’s Office
- Jack Finlaw, Chief Legal Counsel Office of [Colorado] Governor John W. Hickenlooper
- Kevin A. Sabet, Ph.D., Co-founder and Director, Project SAM Director, Drug Policy Institute, University of Florida
I am expecting and hoping that there will be written testimony from some or all of these witnesses posted via the Senate website within the next 24 hours, and I am planning to watch the webcast of the hearing (and perhaps even live-blog some of it at Marijuana Law, Policy and Reform).
Here at The Weed Blog one can see a whole bunch of very hard questions that might be asked of DAG Cole concerning federal policies and practices, which were set forth in a letter sent by the pro-reform group California NORML to Senator Dianne Feinstein. I doubt many of these questions will be asked verbatim, but they provide an effective pro-reform perspectives on various ways in which state and federal marijuana laws, policies and practices operate at cross-purposes.
As the title of this post suggests, I am eager for readers of this blog to indicate what kinds of questions they might be most eager to see addressed in tomorrow's scheduled Senate hearing.
Cross-posted at Marijuana Law, Policy and Reform.
Second Circuit panel provides fuller account of child porn restitution accountingThe Second Circuit today released a lengthy panel opinion in US v. Lundquist, No. 11-5379 (2d Cir. Sept. 9, 2013) (available here), providing a detailed discussion of the rules and standards for child porn restitution sentencing decisions. Here is how the opinion begins:
In this case, defendant-appellant Avery Lundquist was convicted of receiving and possessing child pornography. Among the images in his possession was one of "Amy," the pseudonym for a young woman who was sexually abused by her uncle when she was four years old. The uncle photographed his abuse of Amy, and disseminated those images on the Internet.
Amy is now in her twenties, and the pornographic images her uncle took of her continue to be traded on the Internet. Some 113 individuals -- including Lundquist -- have been convicted of possessing images of her. The questions presented are whether Lundquist may be ordered to make restitution to Amy and, if so, in what amount.
The district court (Suddaby, J.) concluded that Lundquist proximately caused $29,754.19 of Amy's losses, but decided he should be held jointly and severally liable, along with all others convicted of possessing Amy's images, for her total losses of $3,381,159. We conclude that there was sufficient evidence to support a finding of proximate cause and that the district court reasonably estimated the share of Amy's losses to be attributed to Lundquist as her total loss divided by the number of persons convicted of possessing her images at the time of the restitution request. The district court abused its discretion, however, by including in its calculations losses that Lundquist could not have proximately caused and by holding Lundquist jointly and severally liable for harm caused by defendants who were not before the court. Accordingly, we affirm in part, vacate in part, and remand for recalculation of the amount of restitution.
California killer claiming autism supports Atkins claim to preclude executionThis article from San Jose Mercury News reports on a notable effort by a killer on death row to raise a unique argument as part of an Atkins Eighth Amendment claim to prevent his execution. This piece is headlined "California death penalty and mental retardation: Condemned killer seeks reprieve," and here are excerpts:
More than six years ago, it appeared that condemned Santa Clara County killer David Allen Raley had run out of legal options to avoid execution. After two decades of appeals, the U.S. Supreme Court had rejected Raley's seemingly final challenge to his 1988 death sentence for murdering a Peninsula teenager and attempting to murder her high school friend.
But as is often the case for California's death row inmates, Raley's legal odyssey is far from over. Armed with a new order from the California Supreme Court, Raley has revived his appeals with a claim that he was mentally retarded at the time of his 1985 crime -- a finding that would spare him from execution under a 2002 U.S. Supreme Court decision.
On Monday, Santa Clara County Superior Court Judge Linda Clark will start a special two-week hearing in Raley's case, which among other evidence has raised the unique claim that he is autistic and therefore falls under the legal protections against executing the mentally retarded. Clark will issue a recommendation to the state Supreme Court, which will make a final decision on Raley's fate.
In the meantime, Raley's legal team argues the 51-year-old death row inmate should spend the rest of his life in prison for the 1985 murder of Jeanine Grinsell and the attempted murder of her close friend, Laurie McKenna, inside a deserted Hillsborough mansion. "It is very true that David Raley is significantly developmentally disabled," said Robert Bacon, one of Raley's lawyers....
In court papers submitted to Clark, prosecutors branded Raley's argument a belated legal Hail Mary to avoid lethal injection and scoffed at the suggestion he is mentally disabled, noting his IQ tests were never below the standard threshold for mental retardation. "(Raley) acted alone in committing these horrible crimes and the facts elicited at trial show evidence of premeditation, cunning and problem solving, all characteristics inconsistent with a diagnosis of intellectual disability," prosecutors wrote.
Raley's case is part of an increasingly common legal battle unfolding in recent years in California and other death penalty states, the result of the U.S. Supreme Court's ruling that it is unconstitutional to execute the mentally retarded. The high court left it to the states to sort out which death row inmates or defendants facing capital murder charges may fall under the murky definition of mental retardation, forcing courts to grapple with evaluating whether there is clear proof of the disability before the age of 18.
The California Supreme Court has issued orders in dozens of cases like Raley's in which death row inmates have made the claim, often decades after a crime and death sentence. These include Bay Area condemned killers Walter Cook, from San Mateo County, and Robert Young and Delaney Marks, sent to death row from Alameda County. Courts have also spared some murderers from the death penalty at trial, including convicted San Jose cop killer DeShawn Campbell, who was found to be mentally retarded and sent to prison for life....
Death penalty supporters say claims such as Raley's are contributing to the legal morass. "The fuzziness in the definition of retardation" has given death row inmates another avenue to contest their sentences, "even though generally meritless" said Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation.
But Raley's supporters say his case is an example of the state spending too much time and money on the death penalty. The American Civil Liberties Union cites his mental disability and costly appeals as reason to abandon capital punishment. "He's not the worst of the worst," Bacon added. "The interests of public safety could be served with life in prison without the possibility of parole."
September 9, 2013 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (11) | TrackBack
"Talking About Cruelty: The Eighth Amendment and Juvenile Offenders after Miller v. Alabama"The title of this post is the title of this notable new paper by Samuel Pillsbury now available via SSRN. Here is the abstract:
After setting out the issues and approach of the U.S. Supreme Court majority in Miller v. Alabama, the article develops cruelty as a constitutional norm. Initially cruelty as a norm for Enlightenment thinkers in the late 18th century and in the creation of the American penitentiary in the early nineteenth century is considered. Then the article examines cruelty as a modern norm that condemns both sadism and indifference towards the serious suffering of others. This norm supports the Miller conclusion that mandatory life without chance of parole sentences for certain juvenile offenders are cruel, because such sentences mandate a form of culpable indifference to individual value.
The article then describes how a cruelty norm may guide courts in resolving the constitutionality of a life without chance of parole sentence for juvenile by a judge who had discretion to order a lesser sentence. The cruelty norm described would find unconstitutional a life sentence for a juvenile unless a subsequent opportunity was provided for the offender to seek release based on personal reform. Otherwise, a life sentence would disregard the basic value of the offender in the person that he or she might become.