October 19, 2013
Talk in Georgia about modifying its (too) tough approach to Atkins death penalty issueThis new AP article, headlined "Ga. to review tough death penalty provision," reports about talk of possible reform to Georgia's application of the constitutionally mandated death penalty exception for the mentally retarded. Here are excerpts:
The state that was the first to pass a law prohibiting the execution of mentally disabled death row inmates is revisiting a requirement for defendants to prove the disability beyond a reasonable doubt — the strictest burden of proof in the nation.
A state House committee is holding an out-of-session meeting Thursday to seek input from the public. Other states that impose the death penalty have a lower threshold for proving mental disability, and some don't set standards at all....
Georgia's law is the strictest in the U.S. even though the state was also the first, in 1988, to pass a law prohibiting the execution of mentally disabled death row inmates. The U.S. Supreme Court followed suit in 2002, ruling that the execution of mentally disabled offenders is unconstitutional....
Thursday's meeting comes against the backdrop of the case of Warren Lee Hill, who was sentenced to die for the 1990 beating death of fellow inmate Joseph Handspike, who was bludgeoned with a nail-studded board as he slept. At the time, Hill was already serving a life sentence for the 1986 slaying of his girlfriend, Myra Wright, who was shot 11 times. Hil
l's lawyers have long maintained he is mentally disabled and therefore shouldn't be executed. The state has consistently argued that his lawyers have failed to prove his mental disability beyond a reasonable doubt. Hill has come within hours of execution on several occasions, most recently in July. Each time, a court has stepped in at the last minute and granted a delay based on challenges raised by his lawyers. Only one of those challenges was related to his mental abilities, and it was later dismissed.
A coalition of groups that advocate for people with developmental disabilities pushed for the upcoming legislative committee meeting and has been working to get Georgia's standard of proof changed to a preponderance of the evidence rather than proof beyond a reasonable doubt. Hill's case has drawn national attention and has shone a spotlight on Georgia's tough standard, they say.
The process has taken an enormous amount of education, said Kathy Keeley, executive director of All About Developmental Disabilities. Rather than opposition to or support for the measure she's pushing, she's mostly encountered a lack of awareness about what the state's law says, she said. The groups are hoping to not only express their views at the meeting, but also to hear from others to get a broader perspective, Keeley said. The changes should be relatively simple and very narrow in scope, targeting only the burden of proof for death penalty defendants, she said.
Ashley Wright, district attorney for the Augusta district and president of the state District Attorneys' Association, said prosecutors question the logic of changing a law that they don't see as problematic and that has repeatedly been upheld by state and federal courts. "The district attorneys don't believe that you change a law for no reason and, in this case, the law appears to be working," she said. "Where has a jury done a disservice? Why are we putting all our eggs in the defendant's basket and forgetting that there's a victim?"
Prosecutors agree that the mentally disabled shouldn't be executed, and defendants are frequently spared the death penalty when there is proof of their mental disability supported by appropriate documentation from credible and reliable experts, she said.
But Hill's lawyer, Brian Kammer, argues that psychiatric diagnoses are complex, and "experts who have to make diagnoses do not do so beyond a reasonable doubt, they do it to a reasonable scientific certainty." Furthermore, he said, disagreements between experts make the beyond-a-reasonable-doubt standard nearly impossible to meet.... In Hill's case, a state court judge concluded the defendant was probably mentally disabled. In any other state, that would have spared him the death penalty, Kammer said.
October 18, 2013
Recommended reading (and hoping for more comments) at "Marijuana Law, Policy and Reform"As I have noted in this space before, I am now posting much less on marijuana law and reform issues here because my energies on this topic are now mostly channeled to my new blog Marijuana Law, Policy and Reform. While I continue to urge everyone who is especially interested in drug policy reform topics to regularly check out my work over there, I will continue to post links to some MLP&R highlights unless I hear complaints or concerns about the practice:
As the title of this post reveals, I have so far been a little disappointed by the absence of comments in response to most posts at MLP&R. The traffic at the site has been pretty robust for a new blog (e.g., my sitemeter reports a few hundred hits most weekdays, especially if I post new content). But given that the blog is dedicated to a topic so controversial and contestable, I had expected there to be more engagement by readers (at least via anonymous commentors).
Could it be that I have managed to make marijuana boring by actually treating it as a serious and important topic of law, policy and reform?
What the heck is NYC doing so right to reduce murders, and why can't Chicago replicate it?The question in the title of this post is prompted by this notable little news item from the New York Times headlined "New York Today: Murder Milestone." Here are the encouraging details:
The city’s murder rate keeps plummeting. So far this year, it’s down 26 percent, officials said.
If that trend holds, it would be the biggest one-year drop yet. And last year had the fewest murders in at least 50 years.
We asked the police bureau chief of The New York Times, Joseph Goldstein, to explain the decline. Some credit goes to a focus by the police on informal youth gangs known as crews, Mr. Goldstein told us.
The police, he said, “make the point that murders attributable to street violence are down even more significantly.” Last week, there were no murders at all.
The drop comes even as officers are doing only about half as many stop-and-frisks as they did at the beginning of last year.
Michael Jacobson, a former city correction commissioner and now a sociology professor at City University of New York, noted that last year’s total of 419 murders was down from 2,245 in 1990.
“If you asked any criminologist 20 years ago, ‘Can it go from 2,200 to 400?’ they would have thought you were insane,” he said. “But if it can go from 2,200 to 400, why can’t it go from 400 to 200?”
This wonderful reality should be celebrated by everyone, though it ought to be especially cheered by those who claimed that recent violent crime declines in the NYC were attributable primarily to very aggressive stop-and-frisk policies and practices. Also of note, especially for sentencing fans, is that this continuing decline in NYC murders is taking place within in a state without the death penalty and with a relatively low (and recently declining) prison population.
Of course, correlation does not mean causation, and a major city in a major state (Chicago, Illinois) is having continuing big problems with violent crime during the same period. Indeed, while folks in Chicago are now very busy having an interesting and robust debate over whether a law proposing mandatory minimum sentences for gun possession is a good way to fight violent crime (as documented in this effective op-ed and this prior post), I wonder if they might use their time and energy more effectively by trying everything they can to replicate everything that folks in NYC are doing lately.
Some related posts on modern crime rates, especially in urban areas:
- Is there really a simple explanation for record-low homicide rate in NYC (or the increase in Chicago)?
- So far in 2013, more investment in cops means less homicides in Chicago
- Is the great US crime decline now finally over?: BJS reports crime up in 2011
- FBI reports crime was down yet again in 2011 (though BJS said it was up)
- Should we thank unleaded gas and the EPA for the great modern crime decline?
- Still more (and still puzzling) crime rate declines reported by FBI
- Effective Washington Post commentary talks up great (and still puzzling) crime decline
October 17, 2013
Is it too early want the new Senator from NJ to get going on sentencing reform?Though Senator-Elect Cory Booker has not yet been sworn in, I am already eager to see if, when and how he might start trying to deliver on his campaign call for federal criminal justice reform. Linked via this page from his website, Senator-Elect Booker has championed an array of reform ideas in this white-paper titled "Reforming America's Criminal Justice System: Refocusing on Delivering Results, Aligning with Our Values, and Reducing the Burden on Taxpayers." Here is just a snippet of some of the sentencing-related reforms he is calling for in that document:
This all sounds good to me, Senator-Elect Booker. Feel free to let me know how I can help.
Increase federal funding for proven, evidence-based programs like drug and community courts, that divert low-level drug offenders from prison....
Facilitate a structured, national conversation about the decriminalization of marijuana...
Eliminate mandatory minimum sentences for low-level drug offenses...
Eliminate the disparity between crack cocaine and powder cocaine....
October 17, 2013 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (9) | TrackBack
"Is the Supreme Court only willing to work at the fringes of the Second Amendment?"The question in the title of this post is the main headline of this notable and effective new commentary by Lyle Denniston at the blog of the National Constitution Center. (Hat tip: How Appealing.) Here are excerpts:
The Constitution’s Second Amendment, the Supreme Court ruled five years ago, protects an individual’s personal right to have a gun for self-defense. It has returned to the Second Amendment only once since then, in a decision three years ago extending that personal right across the nation, so that it can be used to challenge state and local gun control laws as well as such laws at the federal level.
Since then, more than a half-dozen test cases on the issue have been filed at the court, and each one has been bypassed. It appears that no one on the court is pushing to return to the issue; it takes four votes on the bench to grant review, and there is no reliable indication that any case has drawn even one vote....
Although lower courts have issued an array of differing and sometimes conflicting decisions (the pattern that usually draws in the Supreme Court), the scope of the Second Amendment right is still in a kind of constitutional limbo. It remained there on Tuesday, when the Justices turned aside an appeal by a Maryland man, Raymond Woollard, who lives near Baltimore. He once had a permit to have a gun that he could carry outside his home, because he had shown he faced a potential threat from a son-in-law who had shown violent tendencies. But when he tried to get the permit renewed, he was turned down, on the premise that he had not proved that he still faced a threat to his safety. The court’s refusal to hear his appeal came quickly, after the Justices’ first fleeting look at the case. That has been the pattern for the past several years....
The message that the Supreme Court has seemed to be sending — at least up until now — is that it is in no hurry to resolve open questions about how far constitutional gun rights extend. It has not even agreed to spell out in a final way the constitutional test that it will apply to judge the validity of any specific gun control law.
As this trend continues, it tends to put an exaggerated emphasis on each new case that reaches the Supreme Court: Will this be the one that will finally get the Justices’ attention; if not, what will it take? Since the Supreme Court is the sole entity to determine the scope of the Second Amendment right (aside from the legislatures that can put together a clarifying constitutional amendment), judges and legislators across the country have to wonder when they will get new constitutional guidance.
Especially because the Supreme Court left so much unclear about the scope and application of the Second Amendment in Heller, and particularly now that these issues have been "percolating" in lower courts for a half-decade, I think it is getting to be past time for the Justices to take up some "Heller application" cases. In this setting, the SCOTUS is starting to seem a bit like too many others decision-makers inside the Beltway: apparently unwilling or unable to make hard decisions about how competing priorities ought to be balanced in the development of Second Amendment jurisprudence, the Justices so far are avoiding making any decisions at all.
Federal courts and defenders get a few extra shekels in budget dealAs reported here via The BLT, there was a little good news for the federal courts and defenders in the final budget deal hammered out yesterday:
The budget deal Congress approved late Wednesday to reopen the government and raise the debt ceiling provides $51 million in additional funding to the judiciary and to federal defenders.
Federal courts officials and members of the Senate Judiciary Committee greeted the increase as good news, although it is small when compared to $350 million in budget cuts earlier this year as part of sequestration.
In the bill, $1.012 billion would go to defender services, marking a $26 million annual increase over Fiscal Year 2013 for attorneys who represent indigent defendants, said Charles Hall, a spokesman for the Administrative Office of the U.S. Courts.
The extra funding would primarily go to pay the backlog of attorney fees under the Criminal Justice Act, which funds court-appointed private counsel. Payments were suspended in mid-September, when funding ran out two weeks before the end of the fiscal year.
The bill also includes $4.8 billion for judiciary salaries and expenses. That amounts to a $25 million annual increase over FY2013, court officials said. The legislation gives judiciary officials the ability to float those funds among accounts to respond to the most urgent budget needs as they arise, Hall said.
Overall, the judiciary budget would rise from about $6.65 billion to about $6.7 billion. The Senate first approved the bill by an 81-18 vote. The House then approved the bill by a 285-144 vote, sending it to the White House.
A spokesman for Senator Christopher Coons (D-Del.), chairman of the Senate Subcommittee on Bankruptcy and the Courts, said the funding levels should be sufficient to end the furloughs of federal defenders.
A few prior related posts:
- Should anyone eager to see federal criminal justice reform be rooting FOR the sequester?
- "Sequestration Will Wreak Chaos On U.S. Federal Prisons"
- Smarter Sequestration: simple statutory ways to save prison monies (and avoid federal furloughs?)
- "How the Sequester Threatens the U.S. Legal System"
- Sequester now requiring still more foolish cuts to federal criminal justice services
- New op-ed from former federal judges Paul Cassell and Nancy Gertner lament defender cuts
"The Federal Death Penalty and the Constitutionality of Capital Punishment"The title of this post is the title of this notable new article by Scott Howe recently posted to SSRN. Here is the abstract:
The federal death penalty results in few executions but is central to the larger story of capital punishment in the United States. In the last decade, federal statutes governing the federal death penalty seem to have exerted outsize influence with the Supreme Court in its development of “proportionality” doctrine, the rules by which the Justices confine the use of capital punishment under the Eighth Amendment. In three cases rejecting capital punishment for mentally retarded offenders, juvenile offenders and child rapists, the Court noted that federal death-penalty statutes would have conferred protection against federal death prosecutions.
These decisions, and current federal death-penalty law, suggest that the Court could resolve certain nuanced proportionality problems by restricting the death penalty in the states. However, for observers who hope to see the Court eventually use proportionality analysis to abolish the death penalty or greatly restrict its use, these developments seem to carry mostly negative implications. The relatively broad application of federal death-penalty law would weigh against sweeping proportionality restrictions on the death penalty for murder. However, the article explains why the Court’s proportionality analysis fails adequately to consider low execution rates and why the rarity of federal executions, if persistent, should undermine any notion that federal death-penalty law and practice supports a national consensus favoring capital punishment for ordinary murder.
October 16, 2013
Notable shots at federal prosecutorial efforts in special concurrence to Eleventh Circuit sentencing reversalI was intrigued to come across what stuck me as an unusual and sharp "special concurrence" from the pen of US District Judge Dudley Bowen Jr., who was sitting by designation and provided an additional panel vote to reverse a sentence in US v. Rodriguez, No. 11-15911 (Oct. 16, 2013) (available here). Here is the substantive reason for the reversal as explained by the main panel opinion:
Mr. Rodriguez argues that the District Court clearly erred when it found that his offense involved more than 50 victims. Although he acknowledges that the government presented 42 affidavits of victims who suffered a loss and a summary chart indicating that there were 238 victims total, he points out that the government provided no witnesses or underlying data to authenticate the government’s summary chart. For this reason, Mr. Rodriguez argues that the District Court’s finding is not supported by reliable and specific evidence. We agree.
A circuit decision finding insufficient the evidence relied upon by a district judge at sentencing is itself notable. But the substance and style of Judge Bowen's four-page concurrence really caught my attention. These excerpts highlight why:
I concur in the opinion in full. I write specially to comment on the Government’s treatment of the sentencing proceedings.
This is another case wherein the Government has failed to come forward with evidence at a critical time. Unfortunately, important objections made by a defendant at a sentencing hearing are often dealt with as an afterthought. The Government’s cavalier disregard for the need of further evidence, specific references to a trial transcript, or another basis upon which the district court may make sustainable findings is all too typical. In this case, after a laboriously conducted two-week trial, resulting in a conviction we readily affirm, the Government’s willingness to allow the matter to conclude resting upon extrapolation, conjecture, and innuendo left the district court stranded with a well-prepared Presentence Investigation Report, some commentary, and little else....
It is true that a sentencing proceeding is more flexible and less formalized than a trial to a jury.... I fear that the latitude allowed in sentencing proceedings often lulls the Government’s lawyers into a species of spectator. However, the lower standard of proof, the district court’s wide discretion, and the degree of informality in no way lessen the importance or the due process implications of the event....
In fairness to the district court, findings made at a sentencing hearing are often entered months after a trial, following other trials, adversary proceedings, contested matters, and numerous matters in litigation. The United States Probation officers correctly concentrate on the preparation of a Presentence Investigation Report, which may include evidentiary matters, opinions, conclusions, and recommendations based on subjective criteria. When facts in the Presentence Investigation Report are disputed, however, the district court needs more. No one is better positioned than trial counsel for the Government to anticipate and satisfy the need for articulation, protection, and supplementation of the record with the testimony of witnesses, necessary exhibits, or other evidence. Too often, energetic, successful prosecutors approach what is arguably the most important part of the case with a surprising level of inexactitude. Responsible advocacy demands more.
"Three myths about conservatives and criminal justice" ... which are really stories about (slowly) changing modern realitiesThe title of this post is drawn from the headline of this recent FoxNews opinion piece by Vikrant Reddy, a senior policy adviser for Right On Crime. Here are excerpts, after which I explain my addition to the headline:
Over the summer, Americans were embroiled in fierce debates about NSA surveillance, Syria, and — of course — ObamaCare. Attorney General Eric Holder’s August 12th address on criminal justice reform, however, hardly made a blip on the national radar.
Observers who were surprised by this fundamentally misunderstand conservative views on criminal justice. Indeed, Holder himself quite possibly misunderstands conservative views on the subject. Three bits of conventional wisdom on this topic are completely wrong.
1. The conservative position on criminal justice is simply “lock ‘em up and throw away the key.”
Prominent conservatives like Jeb Bush, Newt Gingrich, and Ed Meese are committed to reducing the incarceration of many nonviolent offenders while also enhancing public safety through effective community corrections and law enforcement. After Holder’s August policy address, Grover Norquist and Richard Viguerie essentially asked, “What took you so long?”
Increasingly, conservatives argue that prisons are necessary to incapacitate violent and career criminals but sometimes grow excessively large and costly like other government programs.... Conservatives appreciate the role that prison expansion has played in reducing crime, but they also recognize that incarceration has diminishing returns....
Citing recidivism rates of around 66% in some states, Newt Gingrich and Mark Earley observed: “If two-thirds of public school students dropped out, or two-thirds of all bridges built collapsed within three years, would citizens tolerate it?”
2. “Red states” are resistant to criminal justice reform.
In just the last three years, conservative legislatures and governors in Pennsylvania, South Carolina, and South Dakota enacted major reforms to avert future prison growth that redirect some nonviolent offenders to drug courts, electronic monitoring, and strong probation with swift and certain sanctions to promote compliance.
In 2012 and 2013, Georgia’s conservative legislature and Republican governor, Nathan Deal, passed perhaps the nation’s most sweeping adult and juvenile correctional reform bills. In 2011, an important prison reform bill was signed by John Kasich, the Republican governor of Ohio.
Texas, in particular, is a national reform model. A 2007 legislative estimate projected that over 17,000 new prison beds, at a cost of $2 billion, would be needed in Texas by 2012. State legislators instead expanded community-based options like probation, accountability courts, and proven treatment programs—for a fraction of the cost of prison expansion....
3. Conservative prison reforms are just a response to deficits and will be reversed once budgets are flush again.
Prison reform makes fiscal sense, especially in the wake of a recession that severely tightened state budgets, but this is not the only motivation behind conservative reform efforts. Texas, for example, began its reforms when it enjoyed a budget surplus.
Conservatives are principally concerned with public safety. Troubling recidivism statistics suggest that some low-level, nonviolent offenders who are incarcerated actually emerge from prison more dangerous than when they entered. Conservatives want to ensure that non-violent offenders amenable to rehabilitation can resume their lives as law-abiding citizens, productive employees, and responsible parents.
They are particularly concerned about the effect of sentencing policies on families, the bedrock institution of society. Overwhelming social science evidence — and common sense — indicates that children of incarcerated parents are more likely to perform poorly in school, engage in juvenile crime, and be incarcerated themselves.
Addressing this problem means using prison less for some nonviolent offenders and using community supervision more — but tough supervision that requires offenders to provide restitution to their victims, get drug treatment, keep stable jobs, and support their families.
I very much like this op-ed, but it strikes me as neither accurate nor fair to call the quoted claims "myths" as much as prior realities that are slowly changing. Indeed, the main reason so many "red states" have been leading some of the modern reform movement lately is because of the extreme and dire budget consequences now evidence in the wake of prior "lock 'em up and throw away the key" laws and practices long embraced by conservatives in these red states.
Perhaps the clearest proof that conservatives have been (and still tend to be) fans of the lock'em up approach to criminal justice comes from the latest statistics on state-by-state incarceration rates. This DOJ Bureau of Justice Statistics press release about the latest official data on incarceration rates highlights the following telling data:
In 2012, states with the highest imprisonment rates included Louisiana (893 per 100,000 state residents), Mississippi (717 per 100,000 state residents), Alabama (650 per 100,000 state residents), Oklahoma (648 per 100,000 state residents), and Texas (601 p er 100,000 state residents). Maine had the lowest imprisonment rate among states (145 per 100,000 state residents), followed by Minnesota (184 per 100,000 state residents), and Rhode Island (190 per 100,000 state residents).
Though there are lots of factors other than politics and policies that impact crime and incarceration realities in various states, these data demonstrate it is hardly mythical to believe that conservate policy-makers and opinion leaders have historically (and still today) favor lock'em up approaches to criminal justice.
Some recent and older related posts:
- When and how will state GOP leaders start cutting expensive criminal justice programming? (post from Nov 2010 right after elections predicting new Republican Govs would have to lead some reform efforts)
- Examining the politics of crime and punishment in modern gubernatorial settings
- "Right on Crime: The Conservative Case for Reform" officially launches
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- "Conservatives latch onto prison reform"
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Senators Durbin and Lee come together to introduce "Smarter Sentencing Act"
- Does Senator Ted Cruz agree with GOP Senators Mike Lee and Rand Paul about the need for federal sentencing reform?
- Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?
- "The most interesting part of [Rand Paul's] speech was his widely anticipated defense of drug law reform."
- "Prison-Sentence Reform: A bill to give judges flexibility to impose shorter sentences deserves conservatives’ support."
- Another notable GOP member of Congress advocating for federal sentencing reform
- Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform
Two notable SCOTUS criminal procedure cases up for argument todayThe government shutdown is not preventing the Supreme Court from doing its usual work, and today that work includes hearing oral argument in two criminal cases: Kansas v. Cheever, a state death penalty case concerning Fifth Amendment issues and Kaley v. United States, a federal case concerning whether and when an indicted defendant's assets can be frozen. As usual, SCOTUSblog has terrific argument previews, and here are links and excerpts:
The Fifth Amendment to the Constitution provides that no one in a criminal case can “be compelled… to be a witness against himself.” In the case of death penalty defendant Scott Cheever, that means that the state obviously cannot require him to testify in his capital murder trial. But what if Cheever’s defense includes the argument that the murder could not have been premeditated because he was intoxicated at the time of the murder? Can the state rebut that defense by introducing testimony from the psychiatrist who conducted a court-ordered examination of Cheever? That is the question before the Court in Kansas v. Cheever.
Kaley v. United States... before the Court arises from the (seemingly increasingly) common practice of the government freezing the assets of an indicted criminal defendant, who needs the assets to hire a lawyer. The question is whether the defendant can challenge the grand jury’s determination that there is probable cause to indict him, when the indictment is the basis for the freeze. At first blush, that question sounds fairly dry. But criminal forfeitures are a key part of the federal government’s efforts to prosecute crime -- including because, by limiting a defendant’s ability to fight the charges against him, the pretrial restraining orders enhance the government’s ability to get either a guilty plea or a guilty verdict. As such, a pro-defendant ruling in the case could shift the balance of power in many criminal proceedings back away from the federal government. Underscoring the significance of the case is the fact that Michael Dreeben, the Deputy Solicitor General with primary responsibility for criminal cases at the Court, will argue on behalf of the United States.
For reasons suggested in these previews, I suspect the Cheever case will generally get more public attention even though the Kaley case is plainly far more consequential and important for the modern administration of criminal justice systems.
UPDATE: thanks to SCOTUSblog, I see now that the transcript from oral argument in Kaley v. United States is now here at this link and the oral argument transcript in Kansas v. Cheever is now here at this link.
Intriguing controversy over victim involvement in Whitey Bulger sentencingThis new National Law Journal piece, headlined "Judge Asked to Trim Victim Statements in Bulger Sentencing," reports on a notable legal debate in the run up to a high-profile federal sentencing scheduled for next month. Here are the details:
Lawyers for accused mobster James “Whitey” Bulger and the Boston U.S. Attorney’s Office are facing off about whether victims of crimes for which he was acquitted should be allowed to speak out during his sentencing hearing next month.
The dispute highlights the wide discretion that federal judges hold in weighing evidence a jury rejected when passing sentence. In August, a jury found Bulger guilty of 11 of 19 murders that were predicate acts in the racketeering charges. Bulger also was found guilty of numerous additional racketeering and conspiracy offenses including extortion, narcotics, money laundering and firearms charges.
On Friday, prosecutors asked District of Massachusetts Judge Denise Casper to deny Bulger’s motion to exclude certain victim-impact statements from his November 13 sentencing hearing — specifically, those by family members of victims of crimes for which Bulger wasn’t convicted.
“Given the tumultuous history of this case and the backdrop of the inherent frailties of the Government’s witnesses, the Court should exercise its discretion by not considering acquitted conduct because to do otherwise is an insult to the jury process,” they wrote. “The jury has acquitted James Bulger of numerous murders he was accused of, and for which the government’s own cooperating witnesses are responsible. The sanctity of a jury's verdict should not suffer second guessing or be disrupted,” said Hank Brennan, of counsel to Boston’s Carney & Bassil, one of Bulger’s lawyers.
It’s relevant that Bulger was part of the criminal enterprise that killed all 19 victims, said Assistant U.S. Attorney Brian Kelly, chief of the public corruption unit in Boston.... “The fact that they found him guilty of [only] 11 murders doesn't mean that the other victims of the criminal group shouldn't have a say at sentencing,” Kelly said....
There’s very little case law on point and what there is grants courts wide discretion over what to consider at sentencing, said Jeff Steinback, a Chicago criminal defense lawyer who served on the U.S. Sentencing Commission’s practitioner advisory group between 2010 and 2012. “It’s always tricky, and there’s always a balancing act inherent in the process,” Steinback said.
This dispute seems very unlikely to have any substantive impact: given Bugler's age and the seriousness of his crimes of conviction, it is a near certainty that he will be getting a formal or functional life sentence. But, especially for those eager to have a chance to speak out against Bulger in court, this matter is surely of symbolic and emotional importance for the victims. For these reasons, I would be surprised if the district court precluded any victims from testifying at sentencing.
October 15, 2013
"Louisiana prisons expand inmate medical care through video conferencing"The title of this post is the headline of this notable new article discussing an interesting technocorrections development in the bayou. Here is how the piece begins:
The Louisiana Department of Corrections has drastically expanded an online medical program in which doctors treat prisoners through video conferencing.
The department plans to take the number of offenders treated by telemedicine from 3,500 to 20,000 in the coming year. The shift is part of Gov. Bobby Jindal's push to privatize state-run hospitals and medical clinics. Inmates traditionally received their more advanced or specialized treatment at those charity facilities.
The Department of Corrections provides primary physician care to offenders on site at state prisons. But officials now use video conferencing and other online services when inmates need to see medical specialists, like cardiologists and neurologists.
For example, an inmate who had recovered from a heart attack or cancer, and only needs routine check-ups to monitor their health, could seek treatment through telemedicine.
Dr. Raman Singh, medical director for the Department of Corrections, said telemedicine is supposed to supplement the traditional patient-doctor encounter. Offenders can go off site for doctor visits if needed, but a larger telemedicine program should cut back on the need for many outside medical trips.
Transporting prisoners to a clinic or hospital can be a complicated affair. Offenders require a secure vehicle and guards to accompany them on the journey, and the travel can also take several hours, since state prisons and medical facilities aren't necessarily near each other. In the case of one north Louisiana facility, offenders, had to make a three-hour round trip every time they needed more than very basic medical attention, said Singh.
Singh knows telemedicine works because LSU has been running an online doctor-offender program in south Louisiana facilities for years. Starting this month, Texas-based US Telehealth is providing online medical care to state prisons in central and north Louisiana, helping to cover the state's whole correctional system. The LSU School of Medicine had wanted to operate the prison contract statewide, but US Telehealth offered a better prices for its services, prompting the Department of Corrections to sign a partial system contract with the company.
Fascination and frustration with "finality fixation" in en banc Sixth Circuit Blewett argumentsAs mentioned in this recent post, I have so far resisted writing up my thoughts concerning last week's remarkable Sixth Circuit en banc Blewett oral argument on crack sentencing modifications. I have done so in part because I wanted to be able to devote a block of time to the task, and in part because via the Sixth Circuit website folks can (and should) listen for themselves to the audio recording of the hour-long argument via this link.
Now that I have had more time to think about last week's oral argument and the broader issues in Blewett, I continue to find myself (as the title of this post suggests) fascinated and frustrated by what I will call a "finality fixation" in the context of sentencing issues. A variation of this fixation made me a bit batty in the FSA pipeline debate that culminated in the Supreme Court's Dorsey ruling, and it also comes to play in the on-going dispute over whether the Supreme Court's Miller ruling will apply retroactively to final juve murder sentences. I am likely fixated on this notion of a "finality fixation" because I am currently working on a symposium article on this topic. Still, the tenor of much of the Blewett oral argument, and other arenas where concerns about sentencing finality seem often now to trump interests in sentencing fitness and fairness, have a way of driving me to fits of fascination and frustration.
At the risk of repeating parts of the brief on Eighth Amendment issues which I helped file on behalf of the NACDL (and which is discussed and linked via this prior post), let me try here to explain what still makes me a bit nutty about cases like Blewett.
Point 1: Each and every federal criminal justice policy-maker in the three branches of the federal government — Congress, the Prez and his Justice Department, and the US Sentencing Commission — have all expressly and formally declared that all 100-1 ratio pre-FSA crack prison sentences were unfair, excessive and ineffectual, AND Congress enacted the "Fair Sentencing Act" to lower all federal crack sentences by raising the trigger quantity for mandatory minimum prison terms and by mandated that the US Sentencing Commission significantly lower all crack guideline prison ranges.
Point 2: When it reformed modern sentencing rules and eliminated parole release, Congress created a express statutory sentencing modification mechanism — in 18 U.S.C. § 3582(c)(2) — through which offenders still in prison who were "sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission [can move for a court to] reduce the term of imprisonment," AND thousands of the most serious crack offenders sentenced before the FSA have had their prison sentences reduced through this stautory mechanism. (This latest USSC report indicates not only that 7,300+ pre-FSA crack offenders have had their prison terms reduced by an average of 29 months, but also that thousands of these crack offenders got reduced sentences despite having extensives criminal histories and/or having used a weapon in their offense and/or having a leadership role in the offense. See Table 6 of USSC report.)
Point 3: Congress, the Prez and his Justice Department, and the US Sentencing Commission have all ordered, authorized and/or not objected to thousands of more serious pre-FSA crack offenders being eligble for (and regularly receiving) reduced prison terms via the statutory sentencing modification mechanism of 3582(c)(2). The Blewetts and other less serious pre-FSA crack offenders whose sentences were impacted by the 100-1 mandatory minimum terms and who are still in federal prison serving (now-repealed) pre-FSA crack sentences that every federal criminal justice policy-maker in each branch of the federal government have expressly and formally declared unfair, excessive and ineffectual are now simply arguing that they, too, should be eligible to use the same statutory sentence modification mechanism that thousands of the most serious crack offenders have already benefitted from.
Point 4: Nobody has, to my knowledge, even tried to offer a substantive defense or penological justification as to why the Blewetts and only those less serious pre-FSA crack offenders should not even be eligible for the statutory sentencing modification mechanism of 3582(c)(2) and thus must serve the full duration of (now-repealed) pre-FSA crack sentences. Indeed, it seem to me at least that it is not just unjust, but irrational and cruel and unusual, to require only the least serious pre-FSA crack offenders to serve out prison terms that every federal criminal justice policy-maker in each branch of the federal government have expressly and formally declared unfair, excessive and ineffectual, especially given that thousands of the most serious pre-FSA crack offenders can and have already benefitted from the statutory sentencing modification mechanism of 3582(c)(2). (Critically, Congress has never stated nor even suggested, either expressly or implicitly, that it wanted the Blewetts and only those less serious pre-FSA crack offenders to be catergorically ineligible for sentence modification. Indeed, I think the fair implication of the express provisions of the FSA is that all pre-FSA crack offenders should at least have a chance for sentence modification pursuant to 3582(c)(2).)
In light of all these points, in my view the only plausible rationale for denying the Blewetts and other less serious pre-FSA crack offenders a chance for sentence modification is the oft-stated, but rarely thought-through, idea of "finality." And though I think finality is an important policy concern when defendants are attacking long-final convictions, I do not think this concept of finality historically has or now should be given great weight when a defendant is only seeking to modestly modify a sentence. Further, when a federal defendant is seeking only a modest prison sentence modification under an express statutory provision created by Congress, the comity and separation of powers concerns that might also give finality interests extra heft are not present.
Thus my contention that only a "finality fixation" fully accounts for why so many judges seem resistant to the various legal arguments that the Blewetts and other less serious crack offenders are making in these FSA cases. As I see it, given the text and purposes of the FSA and the text and purposes of 3852(c)(2), the eagerness of judges to deny relief to the Blewetts and other less serious crack offenders reflects a fixation on the notion that, even in this remarkable and unique setting, concerns about sentencing finality should still consistently and conclusively trump the need to achieving sentencing fitness and fairness. And that reality fascinates and frustrates me.
Am I silly, dear readers, to be so fascinated and frustrated by all this? I am hoping, especially from those eager to see the Blewett panel decision undone (which I now fear a majority of the Sixth Circuit is planning to do), for responses in the comments that might help me better see what my analysis above is missing and/or why I should not be so nutty about these "finality fixation" matters.Related posts on Blewett:
- On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences
- "Crackheaded Ruling by Sixth Circuit"
- How quickly can and will (hundreds of) imprisoned crack defendants file "Blewett claims"?
- Two weeks later, has there been any significant and noteworthy Blewett blowback?
- As expected, feds ask full Sixth Circuit to review and reverse Blewett crack retroactivity ruling
- Sixth Circuit calls for briefing on Eighth Amendment in Blewett crack sentencing retroactivity case
- My Sixth Circuit amicus brief effort now filed explaining my Eighth Amendment FSA views in Blewett
- Full Sixth Circuit grants en banc review in Blewett
- Audio of Sixth Circuit en banc Blewett oral argument available (and drinking game suggestion)
October 15, 2013 in Examples of "over-punishment", Implementing retroactively new USSC crack guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (1) | TrackBack
SCOTUS takes up another federal criminal gun case while dodging bigger Second Amendment contentions
The Supreme Court this morning granted review on a technical federal gun crime issue, but denied review on a Second Amendment case looking to figure out the reach of SCOTUS rulings in Heller and McDonald. Here is the SCOTUSblog summary of these developments:
The Court also granted review ... on the legality under federal law of the owner of a gun selling it to someone else, if the new owner can have a gun legally. That case is Abramski v. United States (12-1493). However, the Court followed its recent pattern of refusing to hear constitutional challenges to gun control laws under the Second Amendment, turning aside a Maryland case seeking to expand the personal right to have a gun beyond the home (Woollard v. Gallagher, 13-42).
Notably, Abramski is the second technical statutory federal gun crime case that the Supreme Court has decided to resolve this Term. Two weeks ago, the Court granted cert in US v. Castleman, which concerns whether a "Tennessee conviction for misdemeanor domestic assault by intentionally or knowingly causing bodily injury to the mother of his child qualifies as a conviction for a 'misdemeanor crime of domestic violence' under 18 U.S.C. § 922(g)(9)."
Based on a too-quick review of the cert briefing in these cases, I doubt that either Abramski or Castleman will result in a major ruling concerning federal criminal law or sentencing. But, especially given the relative dearth of significant sentencing cases on the SCOTUS docket so far, I will keep these cases on my persona watch-list. I think either or both cases could develop into Second Amendment sleepers if some of the briefing or some of the Justices contend that there is more at stake in these cases than just a technical federal statutory crime issue.
October 14, 2013
Intriguing research and debate surrounding talk of increasing mandatory minimum sentence for illegal gun possession in ChicagoThis new Chicago Sun-Times article, headlined "U. of C. study bolsters call for stiffer firearms sentences: police supt.," reports on some notable new crime research concerning a proposal to increase the mandatory minimum sentence for certain gun possession crimes. Here are excerpts:
Mayor Rahm Emanuel’s argument for stiffer firearms sentences is bolstered by a new study showing gun possession offenders placed on probation are more likely to get re-arrested for murder than other felons, his police superintendent says.
The University of Chicago Crime Lab studied whether those convicted of aggravated unlawful use of a weapon — a gun possession charge — have higher arrest rates for murders and non-fatal shootings than other felons. Using Chicago Police arrest data, the study found that aggravated UUW offenders were four times more likely to be re-arrested on murder charges and nearly nine times more likely to be locked up for nonlethal shootings than other felons.
The U of C study focused on all felons — and a subset of aggravated UUW offenders — who have been sentenced to probation between 2008 and 2011 in Cook County. The study tracked any re-arrests within two years of their probation date.
“This data makes clear that we have to treat illegal gun possession as the violent crime that it is,” police Supt. Garry McCarthy said on Friday.
A bill backed by the Emanuel administration and Cook County State’s Attorney Anita Alvarez would raise the mandatory minimum sentence for aggravated UUW from one to three years and would require offenders to serve 85 percent of their sentences — a “truth in sentencing” provision.
“No matter how you look at it, this bill will save lives,” McCarthy said. “Every illegal gun on our street is a potential murder and the bill pending in Springfield is narrowly tailored to stop violent criminals.”...
Todd Vandermyde, a lobbyist for the National Rifle Association in Illinois, said he remains opposed to the legislation because he’s concerned first-time offenders could get trapped in the same net as felons.
Meanwhile, the Illinois Department of Corrections last week warned of the steep cost of getting tougher on gun-possession offenders. The department said it would cost about $1 billion to house an additional 3,860 prisoners over 10 years. Those costs would include the $21,000 annual cost of housing each prisoner plus the cost of building new prisons or retrofitting existing ones to accommodate them....
Vandermyde said he doesn’t have a problem with boosting the penalties for felons caught with guns. But he’s worried about first-time offenders getting three-year prison terms....
Aggravated unlawful use of a weapon involves a person who possesses a gun on his person or vehicle, isn’t on his property, and one of the following circumstances exists: the gun is loaded and immediately accessible; the gun is uncased and unloaded, but the ammunition is immediately accessible; or the person doesn’t have a state Firearm Owner’s Identification Card.
The seven-page University of Chicago Crime Lab report referenced in this press article is available at this link (which a kind and helpful reader sent my way).
In addition, John Maki, Executive Director of the John Howard Association of Illinois, has authored a lengthy response here to the UC Crime Lab report titled "Mandatory Minimums Will Not Solve Chicago’s Epidemic of Gun Violence: A Response to the University of Chicago Crime Lab’s Support of HB2265." Here is how this interesting reponse starts and ends:
As Illinois’ only non-partisan prison watchdog, the John Howard Association (JHA) believes that the state needs to do everything in its power to use evidence-driven laws, policies, and practices to address Chicago’s epidemic of gun violence. This must include the appropriate use of the state’s prison system, particularly for the serious offense of illegal gun possession. However, as we debate how we should use prison, we should do so with a clear understanding that the deeper we send a person into the justice system, the more we trade the possibility of the long-term benefit of rehabilitation for the short-term effect of incapacitation....
JHA opposes HB2265 because we agree with the consensus of experts and practitioners who have found that the wise use of judicial discretion is more effective at preventing crime than mandatory minimum sentences. At the same time, it is clear that Mayor Emanuel’s administration and its supporters will continue to lobby for HB2265. JHA would therefore like to recommend two amendments. First, as supporters have argued that the costs of HB2265 will be minimal and that mandatory minimums could even save taxpayer money by deterring crime, JHA proposes that the City of Chicago should pay for the costs of increased incarceration that stem from the bill, which would otherwise fall entirely on the state. Second, if supporters believe that the law will work, they should demand a three-year sunset be placed upon the bill. This would allow analysts to isolate and evaluate its impact. In three years, if the evidence shows that HB2265 works in the way that the Crime Lab argues it will, no one will oppose re-authorizing it, including JHA.
Could (and should) all federal district court judges consider going on strike for a few days?
The question in the title of this post was the question which came to mind after seeing these recent press reports about how bad matters are getting in the federal trial courts as a consequence of the double-whammy of sequester and the government shut-down:
From the National Law Journal here, "Federal Judges Push Back: In some courts, all employees 'essential'"
From Politico here, "Government shutdown: 'It is time to tell Congress to go to hell'"
Having every federal district court judge refuse to show up for work seems much more likely to happen in a Fed Courts exam question than in reality. Interesting legal questions and issues aside, wouldn't it send an especially strong message to Congress and the President if a whole lot of federal judges started coming down with the blue flu?
In praise of student-assembled reading lists for law school seminars
I am using this space to promote and praise a law school teaching technique that I keep using to good effect in my "hot topic" seminars. Starting this week, the students in my Marijuana Law, Policy and Reform seminar are "taking over" the class and classroom by selecting topics of special interest to them and assembling readings to provide the basis for our classroom discussions of these topics. I am posting these student-assembled readings over at Marijuana Law, Policy and Reform, and the first set of readings covers tax issues.
I had students assemble readings for a death penalty seminar to great effect a few years ago, and I was moved by the first collection assembled in my marijuana seminar to do this post of praise. I am finding, yet again, that law students are consistently able to find lots of on-line, user-friendly readings on law and policy topics (and, wonderfully, often draw on primary materials other than SCOTUS cases and on secondary materials other than law review articles).
Cross-posted at PrawfsBlawg.
Florida legislature told to "End confusion on juvenile sentencing"The title of this post is drawn from the headline of this effective recent editorial from the Tampa Bay Times, which makes these points about the post-Miller mess in Florida:
By reinstating the original sentence of life in prison without parole for Nicholas Lindsey on Friday, a Pinellas-Pasco Circuit Court judge entered muddy legal waters. Lindsey and other juveniles convicted of murder continue to be sentenced under a state statute that is now unconstitutional as applied to them. There is no clear road map for judges, because the Florida Legislature has failed to bring state law into conformance with a U.S. Supreme Court ruling. Lindsey's reconsidered sentence for shooting and killing a St. Petersburg police officer will likely be challenged, wasting resources and prolonging the pain for the victim's family. Had the Legislature acted responsibly, the courts would not be operating in the dark and creating law as they go.
State courts are puzzling through what to do with juveniles who were convicted of first-degree murder and sentenced under state law that provides for a death sentence or life in prison without the possibility of parole. Minors cannot be sentenced to death because of a 2005 U.S. Supreme Court ruling. Last year, the court ruled that a life sentence without parole cannot be mandatory for juvenile offenders — people who committed their crime before reaching 18 years old. The court said that in light of a young person's lack of maturity and capacity to change as he grows up, courts must be permitted to take these circumstances into account in sentencing. Florida law gives judges no discretion to impose a lesser sentence....
Other circuit court judges have ruled inconsistently. A judge in Hillsborough County recently resentenced Amer Ejak, now 20 years old, to life without parole for clubbing and strangling a man in 2009 — the same sentence Ejak originally received. But compare that to a teen murderer in Pasco County who was sentenced last month to life in prison with the possibility of parole after 25 years, even though state law makes no provision for it. An August ruling by the 5th District Court of Appeal in Daytona Beach said that the only legal sentence for juveniles guilty of capital murder is life with the possibility of parole after 25 years, but that decision is only controlling precedent for part of the state.
The Florida Legislature surely knew that by not rewriting state law to reflect the U.S. Supreme Court ruling and giving judges the opportunity to impose lesser sentences it would cause confusion and result in disparate treatment of juvenile offenders across the state. Lawmakers shifted their responsibility to the courts. The Florida Supreme Court will have to bring clarity to the law. In the meantime, trial courts faced with resentencing some of Florida's more than 200 inmates who were convicted and sentenced on murder charges should follow the U.S. Supreme Court's ruling as best they can.
October 14, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
October 13, 2013
Parole precogs: computerized risk assessments impacting state parole decision-makingPredicting who is likely to commit a crime in the future is no easy task, as fans of "Minority Report" know well. But states that retain discretionary parole release mechanisms to some extent require its officials to do just that. And, as this lengthy Wall Street Journal article explains, state officials are (in my view, wisely) relying more and more on computerized risk assessment instruments when making parole decisions. The WSJ piece is headlined "State Parole Boards Use Software to Decide Which Inmates to Release: Programs look at prisoners' biographies for patterns that predict future crime," and here are excerpts:
Driven to cut ballooning corrections costs, more states are requiring parole boards to make better decisions about which convicts to keep in prison and which to release. Increasingly, parole officials are adopting data- and evidence-based methods, many involving software programs, to calculate an inmate's odds of recidivism.
The policy changes are leading to a quiet and surprising shift across the U.S. in how parole decisions are made. Officials accustomed to relying heavily on experience and intuition when making parole rulings now find they also must take computerized inmate assessments and personality tests into account.
In the traditional system, factors like the severity of a crime or whether an offender shows remorse weigh heavily in parole rulings, criminologists say. By contrast, automated assessments based on inmate interviews and biographical data such as age at first arrest are designed to recognize patterns that may predict future crime and make release decisions more objective, advocates of the new tools say.
In the past several years, at least 15 states including Louisiana, Kentucky, Hawaii and Ohio have implemented policies requiring corrections systems to adopt modern risk-assessment methods, according to the Pew Charitable Trusts' Public Safety Performance Project. California is using computerized inmate assessments to make decisions about levels of supervision for individual parolees. This year, West Virginia began requiring that all felons receive risk assessments; judges receive the reports before sentencing with the option to incorporate the scores into their decisions.
Such methods can contradict the instincts of corrections officials, by classifying violent offenders as a lower recidivism risk than someone convicted of a nonviolent robbery or drug offense. Criminologists say people convicted of crimes like murder often are older when considered for release, making them less likely to reoffend. Inmates convicted of nonviolent crimes like property theft, meanwhile, tend to be younger, more impulsive and adventurous—all predictors of repeat criminality....
Wider acceptance of computerized risk assessments, along with other measures to reduce state corrections budgets, has coincided with the first declines in the national incarceration rate in more than a decade.
The number of inmates in state and federal facilities fell nearly 1% in 2011 to 1.6 million, after edging down 0.1% in the prior year. The 2011 decline came entirely from state prisons, which shed 21,600 inmates, offsetting an increase of 6,600 federal prisoners. Preliminary 2012 data shows an even larger fall in state inmates of 29,000.
Experts say one reason for the decline is that fewer parolees are returning to prison. About 12% of parolees were re-incarcerated at some point in 2011 compared with 15% in 2006, representing the fifth straight year of decline, according to Justice Department data.
Texas, by reputation a tough-on-crime state, has been consistently using risk assessment longer than many states and is boosting the number of prisoners it paroles each year. With its current system, in use since 2001, it released 37% of parole applicants in 2012 versus 28% in 2005 — some 10,000 more prisoners released in 2012.
Officials in Michigan credit computerized assessments, introduced in 2006 and adopted statewide in 2008, with helping reduce the state's prison population by more than 15% from its peak in 2007 and with lowering the three-year recidivism rate by 10 percentage points since 2005.
Still, experts say it is difficult to measure the direct impact of risk prediction because states have also taken other steps to rein in corrections costs, such as reducing penalties for drug offenses and transferring inmates to local jails.
Michigan's assessments withstood a legal challenge in 2011, when prosecutors sought to reverse the parole of Michelle Elias, who had served 25 years for murdering her lover's husband. A lower court, siding with the prosecutor, ruled the parole board hadn't placed enough weight on the "egregious nature of the crime," court documents say. The Michigan Court of Appeals overturned the decision and upheld Ms. Elias's release.
Yet earlier this month, the same appeals court ruled the Michigan parole board had abused its discretion by releasing a man convicted of molesting his daughter. He hadn't received sex-offender therapy while in prison, but three assessments, including one using [the computer program] Compas, had deemed him a low risk of reoffending. The appeals court, in an unpublished decision that echoed a lower court, said that Compas could be manipulated if presented "with inadequate data or individuals who lie."
The Compas software designer, Northpointe Inc., says the assessments are meant to improve, not replace, human intelligence. Tim Brennan, chief scientist at Northpointe, a unit of Volaris Group, said the Compas system has features that help detect lying, but data-entry mistakes or inmate deceptiveness can affect accuracy, he said. The company says that officials should override the system's decisions at rates of 8% to 15%.
Many assessment systems lean heavily on research by criminologists including Edward Latessa, professor at the Center for Criminal Justice Research at the University of Cincinnati. Parole boards, typically staffed with political appointees, have lacked the information, training and time to make sound decisions about who should be released, Dr. Latessa said. The process, he said, is one factor contributing to the population surge in the nation's prisons, including a fivefold increase in the number of prisoners nationwide from 1978 to 2009, according to the Department of Justice.
"The problem with a judge or a parole board is they can't pull together all the information they need to make good decisions," said Dr. Latessa, who developed an open-source software assessment system called ORAS used in Ohio and other states. Ohio adopted ORAS last year as the result of legislation aimed at addressing overcrowded prisons and containing corrections spending. Dr. Latessa does paid consulting work with state corrections agencies but isn't paid for use of the system. "They look at one or two things," he said. "Good assessment tools look at 50 things."
Some assessments analyze as many as 100 factors, including whether the offender is married, the age of first arrest and whether he believes his conviction is unfair. In Texas, a rudimentary risk-assessment measures just 10 factors. Data gathered in interviews with inmates is transmitted to the offices of Texas parole board members, who vote remotely, often by computer.
Parole officials say assessment scores are just one factor they consider. Some experts say relying on statistics can result in racial bias, even though questionnaires don't explicitly ask about race. Data such as how many times a person has been incarcerated can act as an unfair proxy for race, said Bernard Harcourt, a University of Chicago professor of law and political science. "There's a real connection between race and prior criminal history, and a real link between prior criminal history and prediction," Mr. Harcourt said. "The two combine in a toxic and combustive way."
Christopher Baird, former head of the National Council on Crime and Delinquency, said statistical tools are best used to help set supervision guidelines for parolees rather than determine prison sentences or decide who should be released. "It's very important to realize what their limitations are," said Mr. Baird, who developed one of the earliest risk-assessment tools, for the state of Wisconsin in the late 1970s. "That's lost when you start introducing the word 'prediction' and start applying that to individual cases."
October 13, 2013 in Data on sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack
"Prison Accountability and Performance Measures"The title of this post is the title of this notable new paper by Alexander Volokh now available via SSRN. Here is the abstract:
A few decades of comparative studies of public vs. private performance have failed to give a strong edge to either sector in terms of quality. That supposed market incentives haven’t delivered spectacular results is unsurprising, since by and large market incentives haven’t been allowed to work: outcomes are rarely measured and are even more rarely made the basis of compensation, and prison providers are rarely given substantial flexibility to experiment with alternative models.
This Article argues that performance measures should be implemented more widely in evaluating prisons. Implementing performance measures would advance our knowledge of which sector does a better job, facilitate a regime of competitive neutrality between the public and private sectors, promote greater clarity about the goals of prisons, and, perhaps most importantly, allow the use of performance-based contracts.
Performance measures and performance-based contracts have their critiques, for instance: (1) the theoretical impossibility of knowing the proper prices, (2) the ways they would change the composition of the industry, for instance by reducing public-interestedness or discouraging risk-averse providers, and (3) potentially undesirable strategic behavior that would result, for instance manipulation in the choice of goals, distortion of effort away from hard-to-measure dimensions or away from hard-to-serve inmates, or outright falsification of the numbers. I argue that these concerns are serious but aren’t so serious as to preclude substantial further experimentation.
Lethal uncertainty: Mizzou Gov postpones execution due to novel drug concernsAs reported in this AP piece, headlined "Missouri gov. halts 1st US execution by propofol," the Show Me State has decided to delay its efforts to show whether a new drug might be used successful to executed condemned murderers. Here are the details:
Missouri Gov. Jay Nixon on Friday halted what was to have been the first U.S. execution to use the popular anesthetic propofol, following threats from the European Union to limit the drug's export if it were used for that purpose.
Nixon also ordered the Missouri Department of Corrections to come up with a different way to perform lethal injections without propofol, the leading anesthetic used in America's hospitals and clinics. Nearly 90 percent of the nation's propofol is imported from Europe.
"As governor, my interest is in making sure justice is served and public health is protected," Nixon said in a statement. "That is why, in light of the issues that have been raised surrounding the use of propofol in executions, I have directed the Department of Corrections that the execution of Allen Nicklasson, as set for October 23, will not proceed."
Nixon, a Democrat and staunch supporter of the death penalty, did not specifically mention the EU threat in his brief statement. Nixon was Missouri's longtime attorney general before he was first elected governor in 2008. During his 16 years as attorney general, 59 men were executed.
The leading propofol maker, Germany-based Fresenius Kabi, and anesthesiologists had warned of a possible propofol shortage that could impact millions of Americans if any executions took place.
In a statement, Fresenius Kabi applauded Nixon's move. "This is a decision that will be welcomed by the medical community and patients nationwide who were deeply concerned about the potential of a drug shortage," said John Ducker, CEO of Fresenius Kabi USA. The company said propofol is administered about 50 million times annually in the U.S....
Drug makers in recent years have stopped selling potentially lethal pharmaceuticals to prisons and corrections departments because they don't want them used in executions. That has left the nearly three dozen death penalty states, including Missouri, scrambling for alternatives. Missouri altered its execution protocol in April 2012 to use propofol. The drug gained some level of infamy in 2009 when pop star Michael Jackson died of a propofol overdose.
Nixon's decision also leaves uncertain the execution scheduled for next month for another convicted killer, Joseph Franklin. Soon after Nixon's announcement, Missouri Attorney General Chris Koster filed a motion with the Missouri Supreme Court to vacate the Oct. 23 execution date for Nicklasson and to set a new date "soon after" Franklin's execution date of Nov. 20. A spokeswoman for Koster declined comment.
In addition to concerns raised about how the EU would respond to the execution, Missouri's decision to use propofol prompted a lawsuit filed on behalf of nearly two dozen death row inmates claiming use of the unproven execution drug could result in pain and suffering for the condemned man.
Koster, a Democrat, and Republican Missouri state Sen. Kurt Schaefer have suggested that if the state can't execute by lethal injection it consider going back to the gas chamber, something that hasn't been used since the 1960s. Missouri no longer has a gas chamber but Schaefer recently wrote to Nixon, urging him to consider funding construction of a new one in his next fiscal year budget.
The corrections department on Wednesday agreed to return a shipment of propofol to Louisiana-based distributor Morris & Dickson Co. The company distributes propofol made in Europe by Fresenius Kabi and told the corrections department in November that its shipment was a mistake. Corrections spokesman David Owen said Wednesday that Missouri had a remaining supply of propofol, all of it domestically made. But Fresenius Kabi spokesman Matt Kuhn said even the use of domestically produced propofol in an execution could prompt the EU to impose export controls.
Meanwhile, Mercer Medical, a Kent, Wash.-based third-party vendor, said Friday in a news release it has asked for the 400 milliliters of propofol it sold to the corrections department in June be returned at the request of the manufacturer, Hospira. The website for Hospira says it is headquartered in Lake Forest, Ill....
Nicklasson's attorney, Jennifer Herndon, said she was pleased with the delay, but expects the state to move quickly to revise its execution protocol. "They're pretty anxious to execute people so I would think that the state would put something forward sooner rather than later," Herndon said.