January 26, 2013
Channeling Justice Brennan, new Ohio Supreme Court Justice dissents from order setting execution dateAs reported in this AP piece,the "Ohio Supreme Court has set an execution date for a condemned killer who stabbed a 10-year-old girl." That fact alone is not especially noteworthy, though the date scheduled and a dissent from a newly elected Justice makes this otherwise routine matter blogworthy:
That Ohio is now setting execution dates now nearly 30 months out (and only after decades of capital appeals) provides yet another interesting window on the realities of capital justice delayed. But even more interesting is that Justice O'Neill appears to indicating that he will dissent from any and every effort to implement the death penalty in Ohio. His full dissent is available at this link, and here are excerpts:
The Supreme Court on Friday set a May 14, 2015, execution date for [Jeffrey] Wogenstahl.
Justice William O'Neill dissented, saying the death penalty is "inherently both cruel and unusual" and is unconstitutional. The Democrat said it was time for Ohio to end what he called an outdated form of punishment. O'Neill's comments were unusual for what is usually a routine matter. Even Justice Paul Pfeifer, now a death penalty opponent who wants Ohio's law overturned, voted in favor of the date and sometimes upholds death sentences.
If there exists a case that is appropriate for the imposition of the death sentence, this case clearly qualifies. Appellant was convicted of kidnapping a ten-year-old girl from her home, taking her to a secluded area, and stabbing her to death. There can be no disputing that this was a horrific act that is deserving of the strongest penalty possible.
Without expressing an opinion as to appellant’s guilt or innocence, however, I would hold that capital punishment violates the Eighth Amendment to the Constitution of the United States and Article I, Section 9 of the Ohio Constitution. The death penalty is inherently both cruel and unusual and therefore is unconstitutional.
Capital punishment dates back to the days when decapitations, hangings, and brandings were also the norm. Surely, our society has evolved since those barbaric days. The United States is one of just a few civilized countries that still permit state executions.
To date, 17 states and the District of Columbia have eliminated the death penalty altogether. It is clear that the death penalty is becoming increasingly rare both around the world and in America. By definition it is unusual....
Additionally, death, even by lethal injection, is a cruel punishment. One need only look at the recent Ohio case of Romell Broom for a demonstration of that proposition. Although the executioners spent over two hours attempting to find a vein through which to administer the lethal injection, they ultimately failed. Subsequently, the governor granted a one-week reprieve....
Broom remains on death row today. A more chilling definition of cruel is hard to imagine....
The time to end this outdated form of punishment in Ohio has arrived. While I recognize that capital punishment is the law of the land, I cannot participate in what I consider to be a violation of the Constitution I have sworn to uphold. I must respectfully dissent.
Anonymous hacks USSC website to avenge Aaron Swartz's suicideAs reported in this new AP article, "Anonymous says it hijacked the website of the U.S. Sentencing Commission to avenge the death of Aaron Swartz, an Internet activist who committed suicide." Here is more on this intriguing (and somewhat misguided) bit of internet protest:
The website of the commission, an independent agency of the judicial branch, was taken over early Saturday and replaced with a message warning that when Swartz killed himself two weeks ago "a line was crossed." The hackers say they've infiltrated several government computer systems and copied secret information that they now threaten to make public.
Family and friends of Swartz, who helped create Reddit and RSS, say he killed himself after he was hounded by federal prosecutors. Officials say he helped post millions of court documents for free online and that he illegally downloaded millions of academic articles from an online clearinghouse.
The Justice Department had no immediate comment Saturday.
And thanks to How Appealing, I found here a fascinating statement purporting to explain the role and goal of this form of "hackivism." Here is one of many notable excerpts:
Last year the Federal Bureau of Investigation revelled in porcine glee at its successful infiltration of certain elements of Anonymous. This infiltration was achieved through the use of the *same tactics which lead to Aaron Swartz' death. It would not have been possible were it not for the power of federal prosecutors to thoroughly destroy the lives of any hacktivists they apprehend through the very real threat of highly disproportionate sentencing.
As a result of the FBI's infiltration and entrapment tactics, several more of our brethren now face similar disproportionate persecution, the balance of their lives hanging on the severely skewed scales of a broken justice system.
We have felt within our hearts a burning rage in reaction to these events, but we have not allowed ourselves to be drawn into a foolish and premature response. We have bidden our time, operating in the shadows, adapting our tactics and honing our abilities. We have allowed the FBI and its masters in government -- both the puppet and the shadow government that controls it -- to believe they had struck a crippling blow to our infrastructure, that they had demoralized us, paralyzed us with paranoia and fear. We have held our tongue and waited.
With Aaron's death we can wait no longer. The time has come to show the United States Department of Justice and its affiliates the true meaning of infiltration. The time has come to give this system a taste of its own medicine. The time has come for them to feel the helplessness and fear that comes with being forced into a game where the odds are stacked against them.
This website was chosen due to the symbolic nature of its purpose -- the federal sentencing guidelines which enable prosecutors to cheat citizens of their constitutionally-guaranteed right to a fair trial, by a jury of their peers -- the federal sentencing guidelines which are in clear violation of the 8th amendment protection against cruel and unusual punishments. This website was also chosen due to the nature of its visitors. It is far from the only government asset we control, and we have exercised such control for quite some time...
I think the US Justice Department's website or maybe the websites of various local US Attorneys' offices would have been a more fitting target for these hackers, especially since the federal sentencing guidelines are now advisory. (Notably, this Reuters article wrongly describes the US Sentencing Commission as part of the Justice Department. In fact, as the above AP article gets right, the USSC is an independent commission in the judicial branch.)
I suppose I should just be grateful that Anonymous et al. have not gone after my blog. But perhaps Bill Otis should be on high alert.
January 25, 2013
How will social conservatives react when medical marijuana meets parental rights?In this lengthy post, I suggested that positions on modern marijuana policies may now provide an effective means to distinguish bewteen social conservatives (who will generally oppose reforms and favor big government prohibition policies) and fiscal conservatives (who will be open and perhaps eager to get the cost savings from scaling back this seemingly inefficient part of the government's drug war). But this new local article from Oregon, which is headlined "Oregon family uses medical marijuana to manage son's autistic rage," prompts the question in the title of this post and lead me to think marijuana reform advocates might seek to sway some social conservatives by highlighting medical marijuana stories that implicate parental rights to raise and help their children as they see fit. Here are the basics of the story prompting this thinking:
An Oregon family has turned to medical marijuana to manage their son's severe autistic rage. "It was indescribable, it was horrifying," said Jeremy Echols, father of 11-year-old Alex. "When you've got no other options, are you honestly gonna say no?"
Eleven-year-old Alex Echols is severely autistic, and his doctor said Alex's self-destructive behavior is brought on by Tuberous Sclerosis, a rare, genetic disorder that affects about 50,000 people in the U.S. The disorder causes unregulated growth of non-malignant tissue in organs. In Alex's case, his neurologist said growths in Alex's brain have led to seizures and autism....
Echols said by the time Alex was 5, he exhibited intense, self-directed rage. Echols showed us home videos of the rage. He said they videotaped the episodes to show doctors the injuries were self-inflicted. Echols said Alex head butted anything he could. He said the boy bruised his forehead so badly, the blood would drain down until Alex's entire face was black and blue. His parents got him a helmet to protect his head, swaddled him like a newborn and tried mood-altering drugs to control the behavior, with little success.
Alex's daily, violent behavior became the Eugene family's new normal. When he was eight years old, the Echols made the heartbreaking decision to move Alex into a state-funded group home. "It was like we were throwing him away, like we were giving him to somebody else and saying, 'Sorry buddy, you're not part of the family anymore,'" he said. "It was pretty rough." But was there a way to help him?
In late 2009, the Echols said they saw a television news story about a California woman who was using medical marijuana to treat her autistic son. The Echols researched Oregon's medical marijuana program, and in 2010, a doctor approved Alex for medical marijuana use. "We tried the (marijuana) brownies, we tried butter for cookies," he said.
Alex is now one of 58 minors currently protected under the Oregon Medical Marijuana Act. While autism is not a qualifying medical condition like cancer or severe pain, in Alex's case, his seizures were. And after a few months of treatment, the Echols said they saw a dramatic improvement. "He went from being completely, yelling, screaming, bloodying his face, to within an hour, hour and a half, he would be playing with toys, using his hands," he said. "Something that at that time was almost unheard of."
Echols said Alex's group home will not administer the marijuana, so, about three times a week off-site, his parents give Alex a liquid form of the drug by mouth. The dosage is up to the parent and Oregon law does not require a doctor to monitor a child's medical marijuana use. In fact, Alex's neurologist didn't know about the alternative treatment, until we told him.
While Dr. Roberts did not condone the treatment, he said he understood the family's desire to help their child. "Alex's parents are wonderful people." he said. "I certainly am very much with them in my desire to help Alex. All of us want to help Alex."
The American Academy of Pediatrics has circulated a resolution that opposes the use of medical marijuana in children. Dr. Sharon Levy, an assistant professor of pediatrics at Boston's Children's Hospital and chairwoman of the AAP's committee on substance abuse, told FOX 12 marijuana is toxic to children's developing brains. She also said enough isn't known about the drug's long-term effects.
"For us, the long-term side effects that are unknown for something that can't kill him are a lot better than the long-term side effects of him beating himself bloody," Echols said. The Echols also said they're not advocating the use of medical marijuana for all autistic children, but they say those who walk a mile in their shoes may not consider the treatment so extreme. The Echols have set up a Facebook page that chronicles Alex's journey. You can find their blog at www.facebook.com/alex.autism.rage.mmj.
Among other issues that this interesting story raises is my enduring question/concern about whether and when we will ever hit constitutional limits on federal authority to enforce its steadfast commitment to pot prohibition. Though I certainly hope this is only a hypothetical question, I still wonder whether readers (particularly those supporting federal pot prohibition) would agree with my belief that the Echols would and should have some kind of federal constitutional defense — based on substantive due process, perhaps — if local federal prosecutors were to seek to prosecute and severely punish the Echols for knowingly and repeatedly distributing a Schedule I drug to their child.
A few recent and older related posts:
- Supporting pot prohibition as divining rod pointing toward social conservatives and away from fiscal conservatives
- Are there constitutional limits on severe mandatory federal punishments for those complying with state marijuana laws?
- If force to choose, would you legalize marijuana or prohibit tobacco?
- Intriguing new comments from President Obama on federal pot prohibition policy
- "Marijuana backers court conservatives with appeals on states’ rights, ineffective pot laws"
- Female voters seen as key to success of pot reform initiatives
- "Marijuana: A Winning GOP Issue?" ... and a lost 2012 Romney opportunity
- How can and should we assess the "success" of medical marijuana and pot prohibition reform efforts?
- "California inspired — and now inspired by — other states' marijuana legalization measures"
- Proof of prohibition's failings?: teens now smoke pot more than tobacco
- "Drugs, Dignity and Danger: Human Dignity as a Constitutional Constraint to Limit Overcriminalization"
- Is new brain science now suggesting football is more dangerous than marijuana for kids?
Important reminder that sentencing reform does not always complete offenders' need for helpThis notable new local article, headlined "Newly released California 'three-strikers' face new challenges," provides an intriguing report on the new problems facing certain offenders even after they receive the benefits of sentencing reform. Here are excerpts:
In an unforeseen consequence of easing the state's tough Three Strikes Law, many inmates who have won early release are hitting the streets with up to only $200 in prison "gate money" and the clothes on their backs.
These former lifers are not eligible for parole and thus will not get the guidance and services they need to help them succeed on the outside, such as access to employment opportunities, vocational training and drug rehabilitation. The lack of oversight and assistance for this first wave of "strikers" alarms both proponents and opponents of the revised Three Strikes Law -- as well as the inmates themselves.
"I feel like the Terminator, showing up in a different time zone completely naked, with nothing," said Greg Wilks, 48, a San Jose man who is poised to be released after serving more than 13 years of a 27-years-to-life sentence for stealing laptops from Cisco, where he secretly lived in a vacant office while working as a temp in shipping and receiving.
Experts say California voters didn't have this situation in mind when they approved Proposition 36 in November by an overwhelming margin. Under the new law, judges cannot impose a life sentence on most repeat offenders who commit minor crimes. But the law also allows about 3,000 inmates whose last strike was a minor crime to petition for early release or shorter sentences -- as long as a judge finds they don't pose a serious risk to public safety.
Because of the way the state's complex sentencing laws work, many of those strikers have already been locked up longer than their newly calculated terms and usual period of parole, leaving many to fend for themselves without supervision or assistance once they are released.
So far, none of three dozen or so strikers who have been resentenced since November or with the help of the Three Strikes Project before the election has been rearrested. But some say it's only a matter of time. "It's pretty clear if you release people early without any supervision, there's an increased ability of them to re-offend," said Mike Reynolds, a Fresno man who helped draft the Three Strikes Law after his daughter was slain in 1992 by two repeat offenders. "It's a very, very dangerous policy."
Supporters of the revised three strikes policy are concerned that a notable uptick in crime -- even minor crimes by strikers -- will make the new law look like an ill-advised failure.
To reduce the risk, the same Stanford University Law School instructors who co-wrote Proposition 36 are now organizing a statewide effort to create re-entry plans for strikers using a combination of public and private services. They're planning to meet with operators of homeless shelters and innovative transitional programs from around the state, like San Francisco's Delancey Street Foundation, one of the country's leading residential self-help organizations for former substance abusers, ex-convicts, homeless people and others who have hit bottom.
"We want these people to succeed," said Michael Romano, director of Stanford's Three Strikes Project. "We don't want them committing crimes and creating more victims." Proponents say the main reason they didn't foresee the situation is that the rules regarding parole changed significantly -- after officials had already approved the ballot language for Proposition 36....
Three-strikers face greater re-entry challenges than normal inmates, said Joan Petersilia, a Stanford law professor. About 38 percent receive some level of mental health treatment in prison, compared with 22 percent of the general population.
Romano and his group are hoping to turn to the same donors who funded Proposition 36 for help in creating a statewide re-entry program. A lot rides on the strikers' success. If they do well -- with the help of people like liberal billionaire George Soros, who donated heavily to Proposition 36 -- advocates could use their success to advance the cause of prison reform. If they fail, it could weaken the national effort to reduce mass incarceration.
January 24, 2013
New ACS issue brief on the the federal pardon processI just learned that the American Constitution Society (ACS) is putting out series of new Issue Briefs, under the heading “Toward a More Perfect Union: A Progressive Blueprint for the Second Term,” which seeks to offer ideas and proposals "to advance a vision consistent with the progressive themes President Obama raised in his second Inaugural Address." And I am pleased to see that one of the initial publications in this series is authored by Margaret Colgate Love and is available at this link. Here is how ACS describes this Issue Brief at this page:
ACS is pleased to distribute “Reinvigorating the Federal Pardon Process: What the President Can Learn from the States” by Margaret Colgate Love of the Law Office of Margaret Love and formerly of the Office of the U.S. Pardon Attorney.
The presidential exercise of the pardon power, or lack thereof, has been the subject of national conversation in recent months. As Margaret Colgate Love describes in her Issue Brief, this much discussed, but not often used, executive power and process "has lost its vigor, its integrity, and its sense of purpose.” The latest assessments of the federal pardon process suggest a process plagued by racial and class disparities, and in at least one case, misconduct on the part of the Pardon Attorney.
Rather than "live with a dysfunctional pardon process," Love identifies state pardon models that the President and federal justice system could adopt. Highlighted for their “authority,” “accountability,” and "transparency," Love explains that these models are necessary responses to the "hard to understand and even harder to penetrate, operating in secret and accountable to no one" Justice Department Pardon Office. According to Love, “there is not a single state whose pardon process is as poorly conceived and managed as the federal government’s.” The process must “evolve with the changing needs of the presidency and of the justice system,” Love concludes.
Some recent and a few older posts concerning federal clemency practices:
- Will Prez Obama's clemency record ever match his inaugural rhetoric?
- "Barack the Unmerciful: Obama's amazingly stingy clemency record"
- New York Times editorial assails Prez Obama's considerable clemency failings
- "Obama Has Granted Clemency More Rarely Than Any Modern President"
- Updated numbers on President Obama's disgraceful clemency record
- Noting President Obama's (still) stingy clemency record
- ProPublica reveals more ugliness in federal clemency process
- "Obama's Mercy Dearth"
- Los Angeles Times calls out our "no-pardon president"
- "A no-pardon Justice Department"
- Effective USA Today coverage of President Obama's clemency stinginess
- "Obama should exercise the pardon power"
- NYTimes op-ed assailing Obama's pathetic pardon practices
"Sentenced to Confusion: Miller v. Alabama and the Coming Wave of Eighth Amendment Cases"The title of this post is the title of this recently published essay by Craig Lerner, which gets started this way:
In Miller v. Alabama, the Supreme Court held unconstitutional roughly 2,000 life-without-parole sentences,which had been imposed on juveniles by twenty-eight states and the federal government. The nominal license for the exercise of this power was the Constitution’s Eighth Amendment, which proscribes “cruel and unusual punishments.” The astute (or perhaps naïve) reader will wonder: how can 2,000 sentences imposed by a majority of U.S. jurisdictions be unusual? For that matter, is it possible that a majority of U.S. jurisdictions countenance a “cruel” punishment?
These questions are premised on the now-quaint idea that the phrase “cruel and unusual punishments” was relevant to the Court’s decision in Miller. Although the Court has touted adherence to the Constitution’s text and its historical understanding as a basic interpretive principle in decisions examining the Second, Fourth, and Sixth Amendments, this even-numbered originalism collapses at“eight.” The jurisprudence of he Eighth Amendment was long ago untethered from its text, and as a consequence, the decision in Miller came as little surprise.
Lots of interest and interesting ideas in Washington forum concerning marijuana legization implementationHow Colorado and Washington seek to implement their new regimes of legalizaed marijuana should be a fascinating story to watch throughout 2013 and beyond. And this new local article from the Evergreen State, headlined "Washington Pot Forum Draws Standing Room Crowd," provides a window into the interesting discussions already taking place in one of these states:
The first public forum on how to implement Washington’s new marijuana law drew a capacity crowd Tuesday night in Olympia. The state’s Liquor Control Board is seeking input as it writes the rules for enacting Initiative 502 – Washington’s new pot legalization law.
They arrived early and in droves – the smell of marijuana clung in the air. First in line to get a seat for the forum was Leslie Tikka of Olympia. She mainly came to see a bit of history in the making. “I’ve thought about getting a license and holding it because I think it would be valuable because no one knows what’s going to happen with it," Tikka said. "But I don’t think I’d want to go in production. I don’t know enough.”
Inside, Liquor Control Board chair Sharon Foster had one reaction to the standing room only crowd: “wow.”... Foster told the audience Washington is about to go where no other state has gone before. The task over the next year: create a complex system to license marijuana producers, processors and sellers. And the audience had plenty of advice.
Justin Pitts came to Olympia all the way from Spokane. He has a felony conviction for pot and said that shouldn’t disqualify him from getting a license. “I’m one of the casualties that at 20 years old I got caught with a backpack full of pot and became a felon from it," Pitts explains. "Twenty years later now I’ve no other convictions, no problem, have multiple businesses and pay lots of taxes but yet I would be barred.”
Other suggestions: license as many producers as qualify in order to flood out the black market. Survey the public to see how much pot will be needed to meet demand – and then double it. Take into account the environmental impact of marijuana production.
It was mostly a ball caps and t-shirt crowd. But there was one guy in a pinstripe suit. Jamen Shively is a former Microsoft strategist. Now he plans to open high-end marijuana retail shops. “Our target market is baby boomers and so you’re going to have a lot of baby boomers. Maybe they tried the product 40 years ago, maybe they didn’t inhale," Shively says. "Well, now it’s safe to inhale. And the product has changed a lot.”...
The Liquor Control Board has five more public meetings scheduled around the state and plans to add more dates as needed.
January 23, 2013
More notable talk of more notable sentencing reforms (and a sentencing commission) in TexasFor many years and for many reasons, Texas has been among the most interesting and dynamic modern sentencing reform states. And this new article from the Austin American-Statesman, headlined "Prison reform outlook improves with business group’s involvement," details why the past, present and future of sentencing in the Lone Star State merits close attention from all sentencing fans. Here are snippets from this new article:
Now, with an influential business lobby group and a leading conservative organization leading the charge, some legislative leaders are wondering whether this year’s 140 days of lawmaking could rival the 2007 session. That year, lawmakers approved a historic $240 million initiative to provide addiction treatment and rehabilitation programs for convicts rather than building new prisons, a gamble that has since paid off — and become a national model.
This year, just two weeks into the legislative session, there are active discussions about expanding a variety of community-based corrections programs with state funds, changing state laws to rehabilitate low-level drug offenders in programs rather than in expensive state prisons, and even to ease laws that limit ex-convicts’ employment.
“The Legislature this year has an opportunity to take the next step,” said Marc Levin, director of the Center for Effective Justice at the conservative Texas Public Policy Foundation. Levin helped bring in the support of the Texas Association of Business to push the smarter-on-crime agenda. “The current system is a drag on our vitality as a state. The more people we can get into less costly treatment and rehabilitation programs that are successful, the better off we’ll be,” he said.
Bill Hammond, a former legislator who is president of the Texas Association of Business, agrees: “The current system costs too much. We’re looking at this from a business standpoint, that some changes are good public policy.” Even state Sen. John Whitmire, a Houston Democrat who is an architect of many of the previous reforms, says he is hopeful that meaningful reforms could be in the offing, thanks to an unexpected new ally....
Proposals sparking the most discussion so far include:
• Allowing more low-level offenders caught with small amounts of certain drugs to be sentenced to local rehabilitation and treatment programs instead of prison, and letting shoplifters and other petty criminals serve their sentences under community-based supervision. ...
• Making prostitution a misdemeanor offense, rather than a low-level felony. The change could eventually remove several hundred women from state lockups and place them in local rehab programs that have been highly successful elsewhere. The difference in cost: $15,500 a year for a state cell vs. $4,300 for a bunk in a community program.
• Creating a new commission of judges, prosecutors and other officials to review sentencing practices across the state. The panel was recommended by a recent government-efficiency report by the Legislature Budget Board. If adopted, it would be the first time the state’s criminal laws have been reviewed for streamlining since 1993....
• Allowing dozens of terminally ill and bedridden offenders to be more easily paroled, a move that could save the state millions of dollars in prison medical costs. At $700 million a year, the medical tab is one of the fastest-growing items in the state budget. The 10 sickest convicts in 2011 cost taxpayers nearly $2 million....
Crime victims and police groups that have campaigned to increase criminal penalties say they will be watching for any changes that might be too soft on crime. But some acknowledge that discussion of successful, less costly alternatives to prison is timely. “As long as public safety remains the most important priority, I’m sure there’s room for improvement,” said Kat Peterson, a Dallas resident who been a frequent fixture at legislative hearings over the past decade — both as a onetime victim of violent crime and an advocate for her cousin who is serving a long sentence in a state prison. “Even a good system can be reformed to make it better.”
I often look to Grits for Breakfast when I want to know more about the latest comingsand goings on Texas criminal justice issues, and Grits had had these recent notable posts on this front:
- LBB recommends sentencing commission to enhance consistency, contain costs of criminal sentences
- Central Unit not 100% closed: Targeting prison closures based on economic, budget benefits
- On ideology and overincarceration: Explaining conservative support for criminal-justice reform
"David Baldus and the Legacy of McCleskey v. Kemp"The title of this post is the title of this article by Samuel Gross, which I just came across via SSRN. Here is the abstract:
In McCleskey v. Kemp, 481 U.S. 279 (1987), the Supreme Court rejected a challenge to racial discrimination in the use of the death penalty. That challenge was based on a landmark study of race and capital sentencing in the state of Georgia by the late Professor David Baldus and colleagues. The legal holding in McCleskey stands, despite the fact that the author of the opinion, Justice Lewis Powell, later renounced it in retirement. It is sometimes described as the Dred Scott decision of the twentieth century. But on the empirical question that was as stake in McCleskey, Baldus has prevailed. Neither the Court in McCleskey, nor any justice at the time or since, has disputed his factual conclusion that many defendants in Georgia were sentenced to death because of their race, and especially because of the race of the victims of the crimes for which they were convicted. This was a remarkable achievement. It fundamentally changed our understanding of the role of race in criminal justice in the United States.
Seventh Circuit finds unconstitutional Indiana statute prohibiting sex offenders from social mediaThe Seventh Circuit today handed down a significant new media and sex offender First Amendment ruling in Doe v. Prosecutor, Marion County, Indiana, No. 12-2512 (7th Cir. Jan 23, 2013) (available here). Here is how the 20-page unanimous panel ruling gets started:
A recent Indiana statute prohibits most registered sex offenders from using social networking websites,instant messaging services, and chat programs. John Doe, on behalf of a class of similarly situated sex offenders, challenges this law on First Amendment grounds. We reverse the district court and hold that the law as drafted is unconstitutional. Though content neutral, we conclude that the Indiana law is not narrowly tailored to serve the state’s interest. It broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors.
I am pretty sure this is the first significant circuit court constitutional ruling on this kind of state sex offender internet prohibition, and a quick skim suggests that this Doe ruling is a fairly thorough and thoughtful review of the challenging legal and policy issues raised in this setting. I would guess that Indiana will seriously consider seeking en banc review and/or a cert petition in an effort to preserve its statute, but I would also predict that the Justice may think these issues ought to percolate more before granting review.
UPDATE: This Politco piece about the Doe ruling provides some information about similar rulings and a statement from the Indiana AG in reaction to the decision:
A similar law in Louisiana was thrown out in February of last year, though the state then passed a revised law requiring sex offenders to disclose their status on social networks, and a Nebraska judge in 2009 blocked parts of a sex offender law that restricted Internet access.
Indiana officials did not know Wednesday whether they would appeal the decision. “The Indiana Legislature made a policy decision in 2008 that the state’s reasonable interests in protecting children from predators outweighed the interest of allowing convicted sex offenders to troll social media for information. We have worked with county sheriffs and prosecutors in our defense of the legal challenges to these protections of our children, and we will need to review this 7th circuit ruling to determine the state’s next steps,” Indiana Attorney General Greg Zoeller said in a statement.
Talk in Vermont of requiring judges to consider directly costs of sentence
This local article, headlined "Sentencing in Vt: Factor in cost?," reports on an interesting sentencing debate now taking place in the Green Mountain State. Here are highlights:
As part of an effort to curb rising corrections budgets, the Senate is contemplating legislation that would require Vermont judges to consider the cost of a sentence before handing down jail time. Sen. Dick Sears, chairman of the Senate Judiciary Committee, said it would be up to individual judges to decide whether to allow the information to influence their sentencing decisions. But with the annual cost of incarcerating an inmate in Vermont at $45,000, Sears said judges at least ought to be aware of the financial consequences of their decisions.
“I’m not suggesting we shouldn’t lock somebody up for 20 years,” Sears said Tuesday. “But if we do, it’s going to cost us $650,000, in today’s dollars, and we need people in the system to be asking themselves: Is that a good investment?”
Requiring judges to consider the cost of their sentences is the most controversial provision in a bill that seeks broader reforms to the sentencing process. The bill would provide judges information about the average sentences for certain crimes — a measure aimed at remedying the disparity in sentencing across county lines. The bill also would institute a risk assessment for offenders, before sentencing, as a means of helping judges evaluate the merits of various options.
Bram Kranichfeld, the new executive director of the Department of State’s Attorneys and Sheriffs, said cost should have no bearing on sentencing. “You can end up with unfair results, you can end up with arbitrary results, if a judge is required in every case to take cost into account,” Kranichfeld said.
He said state’s attorneys support efforts to track the costs of various sentencing options, and to come up with metrics that might help determine how “successful” various sentences are. But he said issues of cost should be used to shape policy, not to influence the length of a sentence in a specific case.
“If a judge was otherwise going to give someone life in prison for a horrible crime, would it be appropriate to give them less than that solely because of the cost?” Kranichfeld said. “On lower-level cases, it’s the same sort of issue. Would it be appropriate for a judge to give someone 20 days in jail if he or she thought 30 days in jail was appropriate and equitable, simply because the 10 extra days is going to cost more?”
Sears said the issue of price shouldn’t play a role in sentencing for violent crimes.
“But it maybe should have some impact on some crimes that are nonviolent in nature, which is an area we’ve been working over the past eight years trying to lower recidivism,” Sears said. “OK, I can put this baggy-pant kid in jail for awhile and it’s going to cost me $75,000, or I can put him in drug treatment and it’ll cost me $10,000. If he’s been breaking into cars and stealing stuff, you need a punishment. But with such limited resources now, maybe cost ought to be a factor in what you want to do with him.”...
Defender General Matt Valerio, who oversees a public defense system that represents the vast majority of defendants in criminal cases, said lawyers in his office have in the past sought to use cost as a factor in sentencing. In every case, Valerio said, they have “roundly been … shot down.”
Valerio said cost should be a factor in sentencing, especially in instances when courts are weighing retribution versus rehabilitation. “If you feel like you want to take out society’s anger with a situation on a person, rather than getting them a rehabilitative sentence, then we ought to know what that’s going to cost so you know how much you’re going to spend for society to impose its punishment,” he said.
January 22, 2013
"Indonesia sentences British woman to death for drug smuggling"The title of this post is the headline of this notable international sentencing story which I suspect will get a significant measure of worldwide attention for various reasons. Here are the details:
A 56-year-old British woman caught smuggling blocks of cocaine in her suitcase has been sentenced to death in Indonesia. Prosecutors in Bali had asked for a 15-year sentence for Lindsay June Sandiford, who was arrested last May carrying what officials said was cocaine worth an estimated $2.6 million.
But a panel of judges opted Tuesday to hand down the death penalty. Their decision was based on the defendant having shown no regret for what she did, Indonesian state news agency Antara reported.
Sandiford, from northeast England, was found to have blocks of cocaine weighing 4.7 kilograms (10.4 pounds) in her suitcase when she arrived on the island of Bali in May, the court heard.
"We were surprised by the decision, because we never expected the death penalty," Ezra Karo Karo, a lawyer acting for Sandiford, is quoted by Antara as saying. He said the judge did not consider mitigating circumstances in his client's case, such as that she acted under the threat of violence to her family, the news agency reported.
The UK Foreign Office confirmed the sentence but said only that it would continue to provide consular assistance. "The UK remains strongly opposed to the death penalty in all circumstances," a Foreign Office statement said.
Indonesia, the world's most populous Muslim nation, has strict laws against drug trafficking. The head of Bali's Customs and Excise Agency monitoring division, Made Wijaya, warned at the time of her arrest that Sandiford could face execution if convicted.
"The main reason is because narcotics can massively endanger the young and, thus, whoever is caught with drugs should be severely punished. If three people can consume one gram of cocaine, then this operation has potentially saved up to 14,000 lives," he said....
Any appeal for Sandiford must be filed within 14 days.... Sandiford's lawyer told Antara that it was likely that his client would appeal the sentence.
DC Circuit rejects efforts to force DEA to consider "rescheduling" of marijuanaAs reported in this AP article, the DC Circuit earlier today "rejected a petition to reclassify marijuana from its current federal status as a dangerous drug with no accepted medical use." Here is more about the ruling and its context:
The appeals court panel denied the bid from three medical marijuana groups, including Americans for Safe Access, and several individuals. In 2011, the Drug Enforcement Administration had rejected a petition by medical marijuana advocates to change the classification.
In his majority opinion, Judge Harry T. Edwards wrote that the question wasn't whether marijuana could have some medical benefits, but rather whether the DEA's decision was "arbitrary and capricious." The court concluded that the agency action survived a review under that standard....
In the federal system, marijuana is classified as a controlled substance, categorized as having a high potential for abuse and no currently accepted medical use, together with drugs like heroin, LSD and ecstasy.
The court noted that the DEA denied the petition to change the classification after the Department of Health and Human Services gave the DEA its evaluation that marijuana lacks a currently accepted medical use in the United States. DEA regulations define "currently accepted medical use" to require, among other things, "adequate and well-controlled studies proving efficacy."
Americans for Safe Access cited more than 200 peer-reviewed published studies demonstrating marijuana's efficacy for various medical uses, including a 1999 study by the respected Institute of Medicine, a government adviser on health issues. "The IOM report does indeed suggest that marijuana might have medical benefits," the court conceded. "However, the DEA fairly construed this report as calling for 'more and better studies to determine potential medical applications of marijuana' and not as sufficient proof of medical efficacy itself."
The lengthy opinion in Americans for Safe Access v. DEA, No. 11-1265 (D.C. Cir. Jan. 22, 2013), is available at this link. There is a dissent from the panel ruling, though it is focused only on the question of standing and argues that the panel majority ought not have reached the merits. I presume there may be an effort to bring this issue to an en banc court or even to the Supreme Court, though upon first impression I am disinclined to predict any change in the outcome in this matter.
More proof mandatory sentencing laws are never really mandatory and can enhance disparitiesOne typical argument for mandatory sentencing provisions, whether in the form of statutory minimums or rigid guideline structures, is that they ensure all persons who commit a certain kind of crime will be sure to get a certain kind of sentence. But even if one believes such one-size-fits-all approach to sentencing can be justified normatively in some settings, real-world evidence reveals again and again and again that criminal justice actors will devise various ways (some hidden, some in the open) to avoid consistent application of these mandates. The latest proof of this reality appears in this lengthy article from yesterday's New York Times, which is headlined "Prison Isn’t as Mandatory as State’s Gun Laws Say." Here are excerpts:
The last time New York State’s gun laws were tightened, Mayor Michael R. Bloomberg rolled out a graphic reminder of what would happen to anyone caught carrying a loaded, illegal weapon. “Guns = Prison,” public service posters proclaimed categorically. In 2006, the mandatory prison sentence was increased to 3.5 years from 1 year.
Five years later, though, that equation seemed decidedly more equivocal. In 2011, the latest year for which sentencing statistics are available, fewer than half the defendants who had been arrested for illegal possession of a loaded gun in New York City received a state prison sentence, according to an analysis of criminal justice statistics by the mayor’s office. In the Bronx, as few as 31 percent were imprisoned. In Brooklyn the rate was 41 percent; in Staten Island it was 47 percent; in Manhattan it was 68 percent; and in Queens it was 76 percent.
Still, the proportion of defendants sentenced to prison represents an improvement over previous years, said John Feinblatt, the mayor’s chief policy adviser and criminal justice coordinator. “Before the new law in 2006, which required anyone convicted of felony possession of an unlicensed loaded gun to serve three and a half years, the prison rate was 28 percent,” he said. “We’ve made a lot of progress.”
But the fact that only half the suspects arrested wind up in state prison also demonstrates that the prerogatives of prosecutors and judges still create a lot of wiggle room, particularly in cases that are weaker or have mitigating circumstances. Mr. Feinblatt said the laws had what he called a “gigantic loophole”: prison sentences are mandatory except where the interests of justice would dictate otherwise. “You could drive a Mack truck through that,” he said.
Sometimes, he said, prosecutors reduce the charges appropriately as a result of plea bargaining, which spares the time and expense of going to trial in a marginal case, as when a weapon is found in a car carrying several people and it is difficult to prove who had physical possession, or the seizure is subject to constitutional challenges over its reasonableness. In pressing for a stricter assault weapons ban last month, Gov. Andrew M. Cuomo said the law had “more holes than Swiss cheese.”
Even some of the more stringent assault weapons provisions rushed through the Legislature last week, while raising minimum penalties, have left some prosecutors puzzled. For example, the new law says those penalties “shall” be imposed, not “must be.” The law also leaves some latitude if a judge, “having regard to the nature and circumstances of the crime and to the history and character of the defendant,” finds that meting out consecutive sentences for multiple offenses “would be unduly harsh and that not imposing such sentence would be consistent with the public safety and would not deprecate the seriousness of the crime.”
Richard A. Brown, the district attorney in Queens, has taken the word “mandatory” more literally. “The statistics bear out the effectiveness of the supply-and-demand strategy that we have been following for some time here in Queens,” he said. “On the one hand, we aggressively go after the gun supply by going after those who traffic in illegal weapons, and on the other hand we concentrate on controlling the demand for illegal guns by making it clear that if you illegally possess a gun in Queens County, there is a very strong likelihood that you are going to state prison.”...
The ratio of arrests to prison sentences is only one measure of the law’s effectiveness. By another measure, of the 448 defendants sentenced in New York State in 2011 after conviction on the top illegal gun possession charge, 437 received a term of at least three and a half years. That same year, 3,018 people were arrested on that charge in the state. State Division of Criminal Justice Services officials caution that comparisons between arrests and convictions can be imprecise because not all the cases are adjudicated in one calendar year.
Steven Reed, spokesman for the Bronx district attorney, said the comparison of arrests and prison sentences of three and a half years also did not account for the number of shorter prison sentences imposed after guilty pleas, or after the many convictions in the cases that prosecutors chose to try. “When those numbers are included, the incarceration rate for gun cases in the Bronx is nearly 85 percent,” he said. (In Queens that rate is 98 percent.)...
Still, Mr. Feinblatt, the mayor’s criminal justice coordinator, suggested that the 50 percent mandatory minimum imprisonment rate remained too low. “Maybe I can’t answer what should it be,” he said, “but when I look and see that one borough is doing 76 percent, I certainly see what it can be.”
Though a bit confusing in its data reporting, this article still is so very telling as to how the "prerogatives of prosecutors" ultimately determine whether and how mandatory sentencing provisions are applied and how the policies and practices of different local prosecutors can have more profound impact on sentencing outcomes in the shadow of mandatory sentencing laws than any other factor. And the final comment by the mayor’s criminal justice coordinator here is especially telling when he says he "can’t answer what should" be the imprisonment rate for offenders who break a law which is supposed to indicate a legislative and executive commitment to the principle that 100% of persons who commit a certain crime should get prison time.
Though sophisticated criminal justice participants already know this story well, this article provide still more evidence about the real import and impact of so-called mandatory sentencing laws: they dramatically impact the power of prosecutors to control sentencing outcomes and thus increase prosecutors' leverage to shape all prior stages of the criminal justice system. In turn, unless and until the discretionary decisions of prosecutors are subject to greater regulation, scrutiny, accountability and review, mandatory sentencing laws are likely to enhance (and hide from view) sentencing disparites.
January 21, 2013
Will Prez Obama's clemency record ever match his inaugural rhetoric?
Blogging four years ago during the last day in which a US President took the oath of office, I commented in this post about the tendency of chief executives to invoke great rhetoric and wax poetic about freedom and liberty in America despite our country's recent record of locking up a record number of persons in jails and prisons. I also asked in this follow-up post on the same day whether it was too early to start demanding President Obama use his clemency power to live up to our country's traditional commitment to personal freedom and liberty.
Sadly, as P.S. Ruckman effectively documents and highlights in this new post, President Obama's first-term record on the clemency front is at once disgraceful and disgusting:
Not surprisingly, this ugly clemency record did not prevent President Obama from kicking off his secord term with more empty inaugural rhetoric about freedom and liberty, and I found these particular phrases from Obama's speech today especially notable:
Barack Obama's first term has come to an end and we are now ready to report that his four-years as president represent the least merciful term for any modern president (Democrat or Republican) and, quite possibly, the least merciful in the entire history of the United States (see footnote below).
This is, of course, an incredible distinction for a president who repeatedly notes that America is a place where people get "second chances," from a president who complained bitterly about overly-harsh sentences given to criminal defendants simply because they were African-American, and from a president who promised us "hope and change."
We do not believe that in this country, freedom is reserved for the lucky, or happiness for the few....
[O]ur interests and our conscience compel us to act on behalf of those who long for freedom. And we must be a source of hope to the poor, the sick, the marginalized, the victims of prejudice — not out of mere charity, but because peace in our time requires the constant advance of those principles that our common creed describes: tolerance and opportunity; human dignity and justice.
We, the people, declare today that the most evident of truths — that all of us are created equal — is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great Mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth.
As all students of mass incarceration know too well, a large number of persons locked in the cages of our nation's jails and prisons are "the poor, the sick, the marginalized, the victims of prejudice"; and the fact that they have committed crimes does not mean they do not "long for freedom," nor does it mean our nation and its peoples should no longer be compelled by our conscience to be a "source of hope" to them. Indeed, as MLK said decades ago and as Prez Obama reminds us today, each and everyone one of us has "our individual freedom .. inextricably bound to the freedom of every soul on Earth" including those souls who have violated our criminal laws and now have their liberty curtailed.
Given his track record to date, I do not expect much change from President Obama on this important (but not politically popular) front. But I will continue to have hope, not so much because I have much faith in this President's merciful heart, but because I do have great faith in this nation's merciful soul.
Big business joins sentencing reform bandwagon in TexasA telling and important sign of modern sentencing reform times can be found in this recent article from the Austin American Statesman, which is headlined "Big-business lobby enters fray on criminal justice reforms." Here is how the article gets started:
I have long viewed incarceration as a costly and not-always-cost-effective public safety expenditure; it is nice to see an important big business lobbying group in what is thought to be America's toughest state to be in agreement and committed to sentencing reform efforts.
In a significant shift in lobbying clout, Texas’ most powerful business group has decided to make criminal-justice reforms a key focus of its priorities for legislative action, seeking ways to spend taxpayer money more efficiently and to improve the state’s economic future.
Bill Hammond, president of the Texas Association of Business, said the group plans to push to expand successful rehabilitation and community-based corrections programs; to change Texas’ drug-sentencing laws to put more low-level offenders in local treatment programs and reduce penalties for small amounts of drugs; and to modify state licensing laws that keep some ex-convicts from ever becoming certified for various trades.“We’re sending too many people to the slammer,” Hammond said. “The taxpayers and the business community are both being harmed.”
On Wednesday, the business group will meet to plan its strategy to persuade the Legislature to enact changes that Hammond said are designed to keep more low-level, nonviolent lawbreakers on probation and in treatment and rehabilitation programs in their communities, “rather than sending them all to Huntsville.”
The entry of an influential lobby group such as TAB — which represents many of the state’s largest employers — promises to change the likelihood that significant reforms could pass into law. It could also portend a showdown with some victims’ rights groups who lobbied for passage of many of the tough-on-criminals measures of the past 20 years.
Even so, the move is part of a national trend just beginning to emerge that has seen business executives weighing in on justice reforms — another sign that the tough-on-crime era, which saw a wave of “three-strikes” laws that put felons away for life and prison funding that was focused mostly on punishment, has ended.
Business leaders from Florida to Kentucky to Oregon have endorsed corrections reforms on limited issues within the past year. But TAB’s new role could be the biggest entry by a business group into systemic justice reform.
Will California ever have an active death chamber?The question in the title of this post is inspired by this new article from the San Jose Mercury News which is headlined "California death penalty: Will state follow Arizona, which has resumed executions after a long hiatus?". Here are excerpts:
When Arizona prison officials injected condemned rapist and murderer Richard Stokley with a single, fatal drug dose last month, it marked the state's sixth execution of the year in the nation's second busiest death chamber.
Now that California voters in November narrowly preserved the death penalty, Arizona's path could foreshadow the future for this state, where not a single one of the 729 death row inmates have marched to execution in seven years.
As in California, interminable legal tangles once shut down Arizona's death penalty system as the state executed only one inmate, who volunteered to die, from 2001 to 2010. But Arizona emerged from numerous court battles that removed all of the legal roadblocks....
The result has been 11 executions since October 2010, nearly the number California has carried out since it restored the death penalty in 1978. Significantly, the 9th U.S. Circuit Court of Appeals, often the last word for death penalty appeals in the Western states, has not intervened.
Now, legal challenges holding up California's executions are expected to resume this year. "I do think eventually the cases all come to an end," said Dale Baich, who heads a unit representing Arizona death row inmates. "But (in California) it might be later than sooner."
In fact, the timetable may still be measured in years, not months. Chief Justice Tani Cantil-Sakauye in December told reporters it could take three years for executions to resume, particularly because of the lingering legal cloud over the state's lethal injection procedures.
At least 14 inmates have exhausted all of their legal appeals and would be eligible for immediate execution if California resolves the broader legal challenges over the death penalty. Those include Bay Area condemned killers Harvey Heishman (Alameda County), Robert Fairbank (San Mateo County) and Royal Hayes (Santa Cruz). Several more are close to their last chance in the courts, as the 9th Circuit, which used to overturn death sentences with regularity, has after recent U.S. Supreme Court rulings made it tougher to tamper with death judgments....
Kent Cattani, head of death penalty appeals in the Arizona attorney general's office, notes that Arizona had it easier than California because prison officials could switch to the single-drug option with a stroke of a pen, rather than going through California's lengthy administrative process. But, he adds, if California resolves the lethal injection issue, it appears the 9th Circuit's decisions allowing Arizona executions to proceed would also apply in California.
Death penalty opponents, however, are not conceding California will become the next Arizona. Natasha Minsker, campaign manager for Proposition 34, which sought to repeal the death penalty, promises a return to the voters, although it may be a few years.
And Michael Laurence, head of the California agency that represents death row inmates, considers all of the roadblocks insurmountable. "We're stuck with this dysfunctional system."
Prosecutors and death penalty supporters disagree. Senior Assistant Attorney General Ronald Matthias, who heads the state's death penalty unit, said "there is no significant difference between Arizona and California" other than that Arizona has an approved execution method.
January 20, 2013
An execution repreive, with a trip to prison, for pups in TexasHere is a heartwarming story from a local paper in Texas running under the headline "Prison pups: Bully breeds given second chance at life." Here is how the lengthy story gets started:
“All dogs go to heaven,” as the saying goes. But in Venus, lucky pups go to prison. The fortunate few are sprung from kill shelters by Hewitt-based Happy Endings Dog Rescue. The Sanders Estes Unit in Venus is home to 1,040 prisoners of varying degrees of lawlessness, and at times, as many as 20 dogs, including the unit’s mascot, a three-legged mutt named King Tut.
And like prisoners — many of whom say they were just in the wrong place at the wrong time — the dogs deserve a second chance, said Lt. Christine Chaplin who oversees the Paws of Hope dog training program at Sanders Estes.
Started in 2009 as a way to rehabilitate prisoners and make “unwanted” dogs — such as pit bulls, pit bull-mixes and Rottweilers — more adoptable, the program has helped save more than 120 dogs that would have otherwise been euthanized in kill shelters.
“Pit bulls and Rottweilers are two dogs that have a horrible name,” Chaplin said. “They are over-bred and tossed aside ... I like the fact that they bring those because you can show people that they are great family dogs, that it’s not the dogs [that are bad] It’s the people.”
By the time they arrive at Sanders Estes, the dogs have already been through a “doggy boot camp” at Camp Diggy Bones, a boarding facility and shelter in Lavon, which works in conjunction with Happy Endings to ensure the pups are ready for adoption. The adoption fee for any dog is $100. Each is trained with basic commands, spayed or neutered and up to date on vaccinations. “Between training and all that stuff, they’re a several thousand dollar dog by the time they leave here,” Chaplin said.
Management and Training Corporation contracts the Sanders Estes facility through the Texas Department of Criminal Justice. Chaplin said the goal of MTC is to help offenders get back into society. Privilege programs like Paws of Hope benefit those serious about rehabilitation.
The dogs live prison cells with select trainers for 12 weeks and are around people 24 hours a day while they learn tricks, basic obedience and socialization. At the end of three months, the dogs and their trainers attend a graduation ceremony, after which, if not immediately adopted, the dogs return to a rescue facility to wait for their forever home.
For reasons that will be obvious to regular readers, I hope that a particular new resident of the New York prison system (discussed in this recent post) does not have a chance to participate in this kind of puppy prison programming.