November 2, 2013
"Bring Back the Guillotine"The title of this post is the headline of this new Slate commentary by John Kruzel. Here are excerpts:
A nationwide shortage of a key ingredient used in lethal injections has led some states to experiment with new, untested drug cocktails for executing death row inmates. The practice has raised moral and constitutional questions, and unleashed a wave of litigation. At this point, as a society, we should be asking whether we can stand by and watch as this barbaric practice continues. Are these iffy drug combinations really any better than the guillotine?
Bringing back the guillotine may sound crazy, but it’s certainly better than the current alternative. It’s better for prisoners because quickly severing the head is believed to be one of the quickest, least painful ways to die. And it’s better for organ recipients because the bodies of guillotined prisoners could be more quickly harvested for viable parts, unlike organs that may become unusable after lethal injection due to hypoxemia.
To be clear, I find capital punishment abhorrent in theory and practice. Even if you believe the death penalty is morally acceptable, evidence of wrongful executions and the large number of inmates having been condemned to death before being exonerated shows its undeniable failings. But until the Supreme Court overturns precedents saying that state-sanctioned executions are not cruel and unusual punishment, shouldn’t we strive to make executions the most humane that they can possibly be? Lethal injection — the current method of execution of the federal government and the 32 states with the death penalty — and the guillotine are both evils, but the guillotine is the lesser evil of the two....
One familiar position put forth by advocates of lethal injection is that the three-drug cocktail is far less offensive than the guillotine — to witnesses. Some state laws grant victims’ families the right to view executions. Would bringing back the guillotine fail to consider the feelings of those who would have to watch someone get his head severed?
In short, no. As Michael Lawrence Goodwin argues, there are two main reasons why victims’ families watch executions: out of a desire to represent a murdered family member at what they consider the ultimate stage of criminal justice, and because of a need for closure. A guillotine execution would not devalue someone’s symbolic presence, and it may actually better facilitate closure for certain witnesses....
Those who would be up for watching a state-sanctioned beheading should heed the warning of Albert Camus. The author and philosopher once told a biographer the story of his father’s experience witnessing the guillotine in action: “He got up in the dark to go to the place of execution at the other end of town amid a great crowd of people. What he saw that morning he never told anyone. My mother relates merely that he came rushing home, his face distorted, refused to talk, lay down for a moment on the bed, and suddenly began to vomit.”
As Camus made clear, capital punishment is always a barbaric practice. If we’re going to continue to allow it in the United States, maybe it makes sense to be confronted by how gruesome it really is.
Might public health be significantly improved by marijuana legalization?The provocative question in the title of this post is prompted by this notable op-ed by Jacob Sullum at Forbes headlined "Economists Predict Marijuana Legalization Will Produce 'Public-Health Benefits'." Here are excerpts:
In their 2012 book Marijuana Legalization: What Everyone Needs to Know, Jonathan Caulkins and three other drug policy scholars identify the impact of repealing pot prohibition on alcohol consumption as the most important thing no one knows. Are cannabis and alcohol complements, so that drinking can be expected to increase along with pot smoking? Or are they substitutes, implying that more pot smoking will mean less drinking? For analysts attempting to calculate the costs and benefits of legalizing marijuana, the question matters a lot, because alcohol is considerably more dangerous than marijuana by most measures. If the two products are complements, states that legalize marijuana can expect to see more consumption of both, exacerbating existing health and safety problems. But if the two products are substitutes, legalizing marijuana can alleviate those problems by reducing alcohol consumption.
Reviewing the evidence in the Journal of Policy Analysis and Management, Montana State University economist D. Mark Anderson and University of Colorado economist Daniel Rees find that “studies based on clearly defined natural experiments generally support the hypothesis that marijuana and alcohol are substitutes.” [Study Here] Increasing the drinking age seems to result in more marijuana consumption, for instance, and pot smoking drops off sharply at age 21, “suggesting that young adults treat alcohol and marijuana as substitutes.” Another study found that legalizing marijuana for medical use is associated with a drop in beer sales and a decrease in heavy drinking. These results, Anderson and Rees say, “suggest that, as marijuana becomes more available, young adults in Colorado and Washington will respond by drinking less, not more.”
That conclusion is consistent with earlier research in which Anderson and Rees found that enacting medical marijuana laws is associated with a 13 percent drop in traffic fatalities. [Study Here] That effect could be due to the fact that marijuana impairs driving ability much less dramatically than alcohol does, although the fact that alcohol is more likely to be consumed outside the home (resulting in more driving under its influence) may play a role as well....
Anderson and Rees note that UCLA drug policy expert Mark Kleiman, who co-wrote Marijuana Legalization and has been advising Washington’s cannabis regulators, recently described a worst-case scenario for legalization featuring an increase in heavy drinking, “carnage on our highways,” and a “massive” increase in marijuana consumption among teenagers. “Kleiman’s worst-case scenario is possible, but not likely,” they conclude. “Based on existing empirical evidence, we expect that the legalization of recreational marijuana in Colorado and Washington will lead to increased marijuana consumption coupled with decreased alcohol consumption. As a consequence, these states will experience a reduction in the social harms resulting from alcohol use. While it is more than likely that marijuana produced by state-sanctioned growers will end up in the hands of minors, we predict that overall youth consumption will remain stable. On net, we predict the public-health benefits of legalization to be positive.”
Notably, this commentary and the research it emphasizes appears only to consider the public health benefits that could result from folks substituting marijuana use for alcohol use. I have long thought that another possible public health benefit could flow from marijuana legalization if some heavy cigarette smokers end up smoking less in total because they sometimes substitute a few joints for a few packs of cigs. Similarly, one might further speculate that there might be a positive "reverse gateway" effect from marijuana legalization with respect to other dangerous drug use and abuse: perhaps fewer folks will try using, or end up harmfully abusing, harder drugs like ecstasy and heroin and meth and oxycodone if they can get always get a cheap and legal buzz from marijuana.
Of course, a lot of research about the use and abuse of various drugs will be needed in order to come to dependable conclusions about the full public health impact of modern marijuana reform developments. Still, especially when everyone is understandably all worked up about the Obamacare roll-out and broader health care reform realities, it is fun to speculate that modern marijuana reforms could end up being the most consequential and positive public health development of the Obama era.
I have long been drawn to the marijuana legal reform movement due to my general affinity for expanding personal freedom and my generally disaffinity for big-government programs like the war on drugs that seem very costly and mostly ineffective. But I have always respected the concerns expressed by serious people that pot prohibition is a public health necessity and that even modest moves toward marijuana legalization could prove costly and harmful in various ways. Without getting too much into the weeds of an empirical debate, I wonder if those who are vigorously opposed to (or even just generally resistant to) marijuana reform movements would still oppose reform if (and when?) empirical evidence starts to show that (some? many? all?) US public health measures and metrics are improved in the wake of marijuana legalization reforms.
Cross-posted at Marijuana Law, Policy and Reform
November 1, 2013
"Did a murderer and a sex offender just save Oklahoma $20 million?"The title of this post is the headline of this recent Washington Post report, which struck my fancy on a Friday morning. Here is the explanation:
Bobby Cleveland, an Oklahoma state representative, had some questions about the amount of money being spent at Joseph Harp Correctional Center. As chairman of the state House’s Public Safety Committee, state prisons fall under his jurisdiction. But on a tour of the prison facility, he and two fellow representatives found something they didn’t expect: a software program written by two inmates that could save the prison, and maybe the state, a lot of money.
The program tracks inmates as they proceed through food lines, to make sure they don’t go through the lines twice, Cleveland said in an interview. It can help the prison track how popular a particular meal is, so purchasers know how much food to buy in the future. And it can track tools an inmate checks out to perform their jobs. “It’s a pretty neat program. It’s all done by the direction of the supervisor, one of these guys who’s kind of, what do you call it, thinking outside the box,” Cleveland said.
Cleveland said the program, if implemented statewide, could save Oklahoma up to $20 million a year. It can also track incoming shipments of food and supplies — and catch discrepancies, like the one that raised red flags with Cleveland and his colleagues, state Reps. Scott Martin (R) and Jason Murphey (R). The software showed that Sysco, which supplies food to the state prison system, was charging the state different prices for the same food item sent to two different facilities....
The program came to lawmakers’ attention when Cleveland took a tour of the facility without the prison warden around. He brought his colleagues to a subsequent visit to hear about the program. “It does kind of expose the waste at all the other facilities. It was just one of those genuine, lightning-strikes things,” Murphey said....
The supervisor, William Weldon, worked with two technologically-savvy inmates to develop the program. Prisoners each have a bar code they can scan, which then shows prison officials who has eaten a meal, or checked out a spatula before a shift in the kitchen, or borrowed a pair of gloves to scrub dishes after a meal. Jerry Massie, a spokesman for the Oklahoma Department of Corrections, said prison officials at Joseph Harp have used the software for about two years.
The software could even help save the state from lawsuits. Cleveland said several prisoners have sued over being denied special meals, whether for medical or religious reasons. When an inmate’s bar code is scanned, prison officials would be alerted that they should receive a diabetic meal, or a Halal or Kosher meal....
The Department of Corrections wouldn’t identify the inmates who created the program, beyond saying that one of them is a sex offender and one is serving a sentence for murder. They may not be the most savory characters, but the program appears to be working. “They built a system that could save the state millions of dollars,” Cleveland said. “I want to get the state using this thing.”
Second Circuit panel halts NYC stop-and-frisk remedies and removes district judge from caseAs reported via this New York Law Journal article, headlined "Circuit Rebuffs Scheindlin on Stop/Frisk," yesterday brought an eventful order from a panel of Second Circuit judges in a high-profile lawsuit about police practices in New York City. Though not involving a sentencing issue, I suspect reader of this blog might have thoughts they wish to share on this notable criminal justice development. Here are the basics from the start of the NYLJ report:
Southern District Judge Shira Scheindlin has been ordered off the stop-and-frisk cases by the U.S. Court of Appeals for the Second Circuit.
The circuit said the judge had given the "appearance of partiality" in her handling of Floyd v. City of New York, 13-3088, and it stayed pending appeal Scheindlin's appointment of a monitor to reform New York City Police Department stop-and-frisk policies and practices she had held unconstitutional.
Two days after oral argument on whether to stay Scheindlin's appointment of monitor Peter Zimroth, a partner at Arnold & Porter, to help remedy police violations of the Fourth and Fourteenth Amendments, the Second Circuit said Scheindlin presented the appearance of partiality both in how she came to preside over the Floyd case in the first place and in interviews she gave to reporters.
Judges Jose Cabranes, Barrington Parker and John Walker, in a three-page order, stayed Scheindlin's Aug. 12 liability opinion in Floyd, where she found a top-down police department practice of making hundreds of thousands of stops without reasonable suspicion of criminal activity, and that blacks and Hispanics were targets of those stops.
The circuit also stayed Scheindlin's opinion and order issued on Jan. 8, 2013 in the related case of Ligon v. City of New York, 13-3123, where she issued a preliminary injunction ordering police to cease making stops for trespass without reasonable suspicion outside of privately-owned buildings in the Bronx.
Finally, the circuit stayed the remedies opinion she issued on Aug. 12 that applied to both Floyd and Ligon. In addition to the appointment of a monitor, Scheindlin directed several other measures be taken, including a one-year pilot program in which police in one precinct in each of the city's five boroughs wear body cameras to record stop encounters for one year.
October 31, 2013
"Sentencing and Prison Practices in Germany and the Netherlands: Implications for the United States"
The title of this post is the title of a notable new report from The Vera Institute of Justice available at this link. Here is a synopsis of the report's coverage via the Vera website:
Germany and the Netherlands have significantly lower incarceration rates than the United States and make much greater use of non-custodial penalties, particularly for nonviolent crimes. In addition, conditions and practices within correctional facilities in these countries — grounded in the principle of “normalization” whereby life in prison is to resemble as much as possible life in the community — also differ markedly from the U.S.
In February 2013 — as part of the European-American Prison Project funded by the California-based Prison Law Office and managed by Vera — delegations of corrections and justice system leaders from Colorado, Georgia, and Pennsylvania together visited Germany and the Netherlands to tour prison facilities, speak with corrections officials and researchers, and interact with inmates. Although variations in the definitions of crimes, specific punishments, and recidivism limit the availability of comparable justice statistics, this report describes the considerably different approaches to sentencing and corrections these leaders observed in Europe and the impact this exposure has had (and continues to have) on the policy debate and practices in their home states. It also explores some of the project’s practical implications for reform efforts throughout the United States to reduce incarceration and improve conditions of confinement while maintaining public safety.
October 31, 2013 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (2) | TrackBack
New report (from small government groups) urges Louisiana to reform its toughest sentencing lawsAs reported in this AP article, headlined "New study calls on La. to change sentencing laws," a notable group of libertarian-leaning organizations has produced a big report urging the state with the highest rate of incarceration to significantly scale back its most extreme sentencing laws. Here are the basics:
The full 36-page report, titled "Smart on Sentencing, Smart on Crime: An Argument for Reforming Louisiana’s Determinate Sentencing Laws," is available at this link. The reports executive summary can be accessed here, and it gets started this way:
Louisiana should shrink its prison population and costs by repealing minimum mandatory sentences for nonviolent crimes, said a study released Tuesday by several right-leaning policy organizations. The groups suggest that Louisiana could maintain public safety while also reducing a per capita incarceration rate that is the highest in the nation, by making changes to the habitual offender law and locking up fewer people for nonviolent offenses.
The Reason Foundation, a libertarian organization based in California, made the suggestions along with the Pelican Institute for Public Policy, a Louisiana-based conservative organization, and the Texas Public Policy Foundation. "Harsh, unfair sentences are putting too many Louisianans in jail for far too long, and at a terrible cost to taxpayers and society," Julian Morris, vice president of Reason Foundation and co-author of the study, said in a statement.
Nonviolent offenders account for the majority of the state's inmates, the report says. By shrinking its prison population, the study says Louisiana could invest more money in rehabilitation programs for those who remain in jail.
Gov. Bobby Jindal's administration said it has asked the state's sentencing commission to review the report's recommendations. Any changes would need approval from state lawmakers.
Over the past several decades, Louisiana legislators have passed a number of determinate sentencing laws aimed at reducing crime and incapacitating certain types of offenders. Because these laws have been disproportionately applied to nonviolent crimes, nonviolent offenders now account for the majority of inmates and admissions to prison in the state. This has produced a number of unfortunate consequences, such as an increase in the state’s prison population from 21,007 in 1992 to 39,709 in 2011 and a $315 million increase in correction expenditures during the same time period, from $442.3 million (in 2011 dollars) in 1992 to $757.4 million in 2011. Meanwhile, there is little evidence that the laws have done anything to reduce Louisiana’s violent crime rate, which remains considerably above both the national average and the rates in its neighboring states. Today, Louisiana has the highest incarceration rate in the country, with 868 of every 100,000 of its citizens in prison.
Louisiana’s citizens could benefit considerably from changes to the way in which convicted criminals are sentenced. As things stand, nonviolent offenders who pose little or no threat to society are routinely sentenced to long terms in prison with no opportunity for parole, probation or suspension of sentence. In most cases, this is a direct result of the state’s determinate sentencing laws. These prisoners consume disproportionate amounts of Louisiana’s scarce correctional resources, which could be better utilized to ensure that violent criminals are more effectively kept behind bars.
"Can the system curb prosecutorial abuses?"The title of this post is the headline of this article in The Arizona Republic capping its series of article on the problems of prosecutorial misconduct. Here is how this piece starts:
For three days, The Arizona Republic has examined prosecutor conduct and misconduct, citing cases in which prosecutors stepped over the line without suffering consequences to themselves or the convictions they win. The question remains: What can be done about it? Options already are in place.
When a prosecutor steps over the line, it’s up to the defense attorney to call it to the court’s attention, and it’s up to the judge to decide whether an offense has been committed and whether it affects the defendant’s right to a fair trial. Yet, neither likes to do so.
Prosecutors are arguably the most powerful people in the courtroom: They file the charges and offer the plea agreements. They determine whether to seek the death penalty, and, given mandatory sentencing, predetermine the consequence of a guilty verdict.
Defense attorneys worry that if they cross a prosecutor, future clients could be treated more harshly the next time they face that prosecutor in court. Judges worry about prosecutors who use court rules to bypass those judges who rein them in. Both know that prosecutors are rarely sanctioned by the court or investigated by the State Bar of Arizona for ethical misconduct.
So overly aggressive prosecutors continue to have their way in the courtroom – as long as they win cases, experts say. “It comes from this ‘end-justifies-the-means mentality,’” said Jon Sands, the federal public defender for Arizona. “We’ll do anything we can to bring someone to justice.”
Here are links to the other article in the series:
- "Prosecutorial misconduct alleged in half of capital cases"
- "Prosecutorsunder scrutiny are seldom disciplined"
- "Objections raised to Juan Martinez's conduct in Jodi Arias trial"
October 30, 2013
Split Pennsylvania Supreme Court rules that Miller does not apply retroactively
Thanks to How Appealing, I see that the Supreme Court of Pennsylvania today finally handed down its long awaited ruling as to whether the hundreds of state teens given mandatory LWOP before the Supreme Court's Miller ruling would get any retroactive benefit from that decision. The 4-3 split decision consists of a this majority opinion, this concurring opinion, and this dissenting opinion.
Here is how the majority opinion concludes:
All Justices of this Court and the United States Supreme Court share the sentiment that “[d]etermining the appropriate sentence for a teenager convicted of murder presents grave and challenging questions of morality and social policy.” Miller, ___ U.S. at ___, 132 S. Ct. at 2477 (Roberts, C.J., dissenting, joined by Scalia, Thomas, and Alito, JJ.). Our role in establishing social policy in the arena is a limited one, however. Here, applying settled principles of appellate review, nothing in Appellant’s arguments persuades us that Miller’s proscription of the imposition of mandatory life-without-parole sentences upon offenders under the age of eighteen at the time their crimes were committed must be extended to those whose judgments of sentence were final as of the time of Miller’s announcement. See generally Geter, 115 So. 3d at 377 (“Clearly and unequivocally, the Supreme Court distinguished between the substantive determinations of a categorical bar prohibiting a ‘penalty for a class of offenders or type of crime,’ as in Roper and Graham, and the procedural determination in Miller that merely requires consideration of mitigating factors of youth in the sentencing process.” (quoting Miller, ___ U.S. at ___, 132 S. Ct. at 2471)). See generally LAFAVE, 1 CRIM. PROC. §2.11(e) (“Teague has made new rulings very rarely applicable retroactively on habeas review[.]”).
Here is a key part of start of the concurring opinion by the Chief Justice: "I write separately to express my own view of what, if anything, might be done to mitigate the seeming inequity that is a result of the High Court’s ruling in Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455 (2012). The 'seeming inequity' here arises from the fact that the prospect of an individualized, discretionary judicial determination of whether a juvenile murderer should ever be afforded parole eligibility depends solely upon the happenstance of the moment that the defendant’s conviction became final."
And here is the first sentence of the dissent: "While I find merit in much of the Majority’s analysis, I ultimately conclude that Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455 (2012), should apply retroactively to juveniles sentenced to life without parole on timely collateral as well as direct review because I find Miller to be an effectively substantive rule."UPDATE: How Appealing provides links via this posting to some local media coverage of this Cunningham ruling, including this Allentown Morning Call article which provides some sense of the impact and reactions to the ruling:
The decision upholds the sentence of Ian Cunningham, a man serving life in prison for a murder he committed when he was 17. It also affects as many as 450 Pennsylvania inmates including six from Lehigh County.
Ultimately, the question will have to be decided by the federal courts, and may end up back before the U.S. Supreme Court, said Kimberly Makoul, an Allentown attorney who represents Joseph G. Romeri, who is 35 years into a life sentence for bludgeoning to death an 80-year-old city woman in 1978, when he was 16. "There is still hope," Makoul said. "It's not over yet and all hope certainly isn't lost."
Marsha Levick, an attorney with the Juvenile Law Center in Philadelphia, said the Pennsylvania high court's decision misses the ethical importance of the federal decision. "When the U.S. Supreme Court puts down a marker … it is morally unconscionable to leave any juvenile offender on the other side of that marker," she said....
The Pennsylvania court's decision was welcomed by families whose loved ones were killed by juveniles. Since the federal decision, they have been bracing for new sentencing hearings that they feared would reopen old wounds by forcing them to relive painful memories. "It's really good to hear. Really," said Darryl Romig, whose 12-year-old daughter, Danni Reese, was raped and strangled in 2003 in Allentown by a 17-year-old killer who received an automatic life sentence.
Brian A. Bahr, now 27 and jailed at the State Correctional Institution-Mahanoy, is among six once-young killers in Lehigh County whose appeals were put on hold pending Cunningham's case. "I'm just glad that he doesn't have the chance to be resentenced," Romig said in a telephone interview. "He did what he did and he deserved what he got."
Baltimore Sun praises federal sentencing judge for his part in a "national conversation about pot"I am intrigued and pleased to see this new Baltimore Sun editorial noting and praising the recent work by a Maryland federal district judge when sentencing a set of marijuana traffickers (first noted here). The editorial carries the headline "A national conversation about pot; Our view: Court's ruling in drug-smuggling case reflects the federal government's changing role in enforcing marijuana laws." Here is an excerpt:
A ruling handed down by a federal court this week strongly suggests that recent changes in state laws governing marijuana are now being reflected in how federal drug laws are enforced and will further change the conversation about marijuana use in America.
U.S. District Judge James K. Bredar acknowledged that new reality when he sentenced Scott Russell Segal this week to nearly five years in prison for his role in smuggling hundreds of kilograms of marijuana to Howard and Anne Arundel counties from California and New Jersey. Under federal sentencing guidelines Mr. Segal could have received eight to 11 years behind bars.
But the judge used his discretion to cut that penalty nearly in half, saying the federal government's response to the legalization of marijuana in some states had raised concerns of "equal justice" if federal law mandated significantly harsher punishments than state laws for the same crime. In doing so he clearly had in mind the Justice Department's recent announcement that it would not seek to block state laws legalizing marijuana for medical or recreational use....
Judge Bredar briefly wondered aloud whether underground sales of marijuana were comparable to the black market in untaxed cigarettes in terms of the seriousness of the threat posed to society. But the truth is that, unlike black market cigarettes, the gangs that deal in illegal marijuana have gotten a lot more violent in recent decades, a function of the widespread continuing limited supply and high demand for pot as well as of the easy availability of guns. That's a direct consequence of the drug's prohibition, just as the gang wars of the 1920s and '30s were a result of attempts to ban legal sales of alcohol. Part of the wisdom of Judge Bredar's ruling lies in the recognition that we don't want to repeat the same mistake again.
Overall, the court's decision was a reasoned attempt to take into account all these factors in order to balance the strict requirements of the law against changing public perceptions of marijuana's impact on public health and safety. Ultimately some new consensus about the benefits and dangers of legal marijuana will emerge and be codified in a coherent body of law. But we are not there yet, and until that happens cases like this will provide the forums through which our national conversation on the subject is conducted.
Recent related post:
- Do nationwide reforms now call for federal judges to sentence below the guidelines in all marijuana cases?
"Gimme Shelter: Mass Incarceration and the Criminology of the Housing Boom"The title of this post is the title of this intriguing new short paper by the always intriguing Jonathan Simon from a book intriguingly titled "Architecture and Justice." Here is the abstract:
Mostly when we think about the intersection of architecture and justice we think of the connections between buildings, like courts, prisons, jails, and the ideas, ideologies, and policies that shape both the scale and aspirations of these buildings. Here I want to propose a different kind of connection. Just as buildings belong to a ‘built environment’, and policies emerge not directly from interest groups but out of broader ‘political rationalities’. We can learn something by reflecting on how these influence each other.
Do lead exposure realities continue to best explain modern crime-rate realities?Every time I see reports new reports about crime rates in the United States or in certain regions, I cannot avoid continuing to think about the interesting research connecting crime rates and childhood exposure to lead. Against that backdrop, I was pleased that Rick Nevin, a Senior Economist at ICF International, sent me this lengthy e-mail discussing his research and writing on this topic:
I want to thank you for yourJanuary blog about the Mother Jones article discussing my lead and crime research. I also want to let you know that I have several posts at www.ricknevin.com that update my earlier analyses, and are closely related to recent posts:Your October 28 post about the NYT editorial on "Why Prisons Are Shrinking" is related to my paper on The Plummeting USA Incarceration Rate showing that the recent incarceration rate decline reflects much steeper declines for younger adults (ages 18-30) born across years of declining lead exposure, partly offset by rising incarceration rates for older adults born across years of pandemic lead poisoning.
Your October post on NYC murder rates is directly related to my post on Why is the Murder Rate Lower in New York City?You had two posts in October about 2012 FBI and BJS data showing relatively stable crime rates related to my recent Lead Poisoning and Juvenile Crime Update paper showing that juvenile arrest rates are falling to record lows since 1980, reflecting ongoing declines in lead exposure over the 1990s, while arrest rates since 1980 have increased for older adults. This paper also updates my crime trend graphs for Britain and Canada showing the predictive power of earlier lead exposure trends, with the same relationship between lead exposure and crime trends and the same shifts in arrest rates by age observed in the USA. I also have a recent paper showing how lead exposure trends can explain Juvenile Arrest Rate Trends by Race and Gender
I also have a post on Lead Exposure and Murder in Latin America and a longer paper called The Answer is Lead Poisoning that updates and integrates findings from several of my related peer-reviewed studies. All of the questions at The Questions link to this same paper.
I know the Kevin Drum story in Mother Jones seemed new and speculative to most readers, but there is actually a large body of research now supporting this relationship, and I have links to many peer-reviewed studies in my posted papers. I don’t know of any other criminology theory that can explain both the rise and fall of crime in so many places -- and different trends by age, race, and gender -- or any theory that has so accurately predicted ongoing crime trends in so many different places for so many years. I hope you will consider bringing some of this information to a broader audience through your blog, and I would welcome your use of any text or graphs from my posted papers.
Some recent related posts:
- Should we thank unleaded gas and the EPA for the great modern crime decline?
- Effective Washington Post commentary talks up great (and still puzzling) crime decline
- Uh-oh: BJS reporting significant spike up in violent and property crime for 2012
- FBI releases 2012 crime statistics showing stability in relatively low crime rates
- New National Academy of Sciences effort seeking to unpack the crime decline
October 29, 2013
Latest Gallup poll indicated slight decrease in (still strong) support for death penaltyAs reported in this new Gallup page, which is headlined "U.S. Death Penalty Support Lowest in More Than 40 Years: Sixty percent of Americans favor death penalty for convicted murderers," new polling data provides an array of mixed messages concerning public opinion regarding the death penalty. Here are the basic details of the latest polling data:
Sixty percent of Americans say they favor the death penalty for convicted murderers, the lowest level of support Gallup has measured since November 1972, when 57% were in favor. Death penalty support peaked at 80% in 1994, but it has gradually declined since then.
Gallup first asked Americans their views on the death penalty using this question in 1936, and has updated it periodically since then, including annual updates since 1999.
Americans have typically favored the death penalty; in fact, support has exceeded opposition in all but one survey, conducted in May 1966, during an era marked by philosophical and legal challenges to the death penalty from the mid-1950s through the early 1970s. Americans' support for the death penalty waned during that time. The culmination of that era was the Supreme Court's 1972 Furman v. Georgia decision, which invalidated all state death penalty statutes on technical grounds but stopped short of declaring the practice itself unconstitutional. Four years later, the court ruled that several newly written death penalty laws were constitutional, and executions resumed in the U.S. shortly thereafter.
From then until the mid-'90s, death penalty support climbed, reaching 80% in 1994, a year in which Americans consistently named crime as the most important problem facing the United States.
The current era of lower support may be tied to death penalty moratoriums in several states beginning around 2000 after several death-row inmates were later proven innocent of the crimes of which they were convicted. More recently, since 2006, six states have repealed death penalty laws outright, including Maryland this year.
Politics is a major dividing line in Americans' death penalty views -- 81% of Republicans currently favor it, compared with 47% of Democrats. Independents' 60% support matches the national average.
Support among all three party groups has declined in the last 25 years, with the largest drop among Democrats. Democrats' level of support is currently down 28 percentage points from its 1994 peak and has fluctuated around the 50% mark for the last several years. Independents' support has generally been in the 60% range since 2000, but was consistently above 70% from the late 1980s through 1999. Republicans' support has averaged 80% since 2000, but averaged a higher 85% from 1988-1999....
A separate question asking about the frequency of use of the death penalty finds 44% of Americans saying the death penalty in the U.S. is not imposed often enough -- rather than too often or the right amount of time. Americans have always been most likely to say the death penalty is not imposed often enough, consistent with their generally favoring the death penalty. However, the current percentage holding that view is among the lowest Gallup has measured. Exactly half as many, 22%, believe the death penalty is imposed too often....
Gallup's nearly 80-year history of measuring death penalty attitudes shows that Americans generally favor the practice, but there have been distinct eras of higher or lower support. And state and federal laws, as well as legal rulings, have tended to move in concert with public opinion. Support is now the lowest in four decades, and a growing number of states have taken action to abolish the death penalty.
Do nationwide reforms now call for federal judges to sentence below the guidelines in all marijuana cases?The question in the title of this post is one that I have been thinking about for quite some time, but it has now taking on some real-world salience in the wake of a couple hearings and sentencing decisions by a federal district judge in Baltimore. Two recent reports from the Baltimore Sun, headlined "Federal judge weighs shift on marijuana sentences," and U.S. judge says government view on marijuana raises 'equal justice' issue" (available here and here, respectively), suggests that at least one federal district judge believes the answer to the question in the title of this post is yes. Here are details drawn from both press reports:
Cross-posted at Marijuana Law, Policy and Reform.
A federal judge said Friday he would consider lighter-than-normal sentences for members of a major suburban marijuana smuggling organization — the latest fallout of the drug's legalization in several U.S. states.
U.S. District Judge James K. Bredar noted that federal authorities announced this summer they would not pursue criminal cases against dispensaries and others legally handling marijuana in states where the drug has been legalized.
Bredar, who called the hearing to discuss the issue, said it might be more appropriate to compare the defendants in the Maryland marijuana case to smugglers of improperly taxed cigarettes rather than treat them as hardened drug traffickers. "It's a serious thing," Bredar said of the group's operation, "but it's not the same as dealing heroin."...
Friday's hearing involved defendants convicted of running a smuggling operation that imported large quantities of marijuana to Howard and Anne Arundel counties from California and New Jersey and laundering the proceeds through an eBay business located in a Jessup warehouse. Twenty-two of the 23 people charged in the case have been convicted; charges against one were dismissed.
Earlier this month, Bredar canceled all of the scheduled sentencings in the case and announced his plan to hold a hearing on changes in Justice Department policy that allow marijuana handlers such as dispensaries and cultivation centers to operate openly in states where marijuana is legal....
At issue in the Maryland case, Bredar said, is whether that shift means the government has decided the drug is less serious now than when federal sentencing guidelines were formulated. "Has the federal government changed its enforcement policy?" Bredar asked.
Assistant U.S. Attorney Andrea L. Smith said the topic was an appropriate one to discuss, but argued that marijuana remained a serious drug and noted that the case involved guns and violence. She suggested it might be more appropriate to compare marijuana dealing to trafficking in illegally obtained prescription pain pills rather than to cigarette smuggling....
And on a sliding scale of regulated substances, Bredar said, he thought marijuana had moved away from hard drugs and toward tobacco.
Sentences in federal cases are based on guidelines that take into account drug quantities and other circumstances in advising judges on the appropriate prison time. Those rules already recognize that dealing heroin is much more serious than dealing marijuana.
For example, all else being equal, a defendant convicted of dealing between one and three kilograms of heroin would face between nine and 11 years in prison, as would someone who sold between 1,000 and 3,000 kilograms of marijuana. At the same time, a cigarette trafficker would have to evade $100 million in taxes to face that length of prison sentence — a vastly greater weight in tobacco.
The guidelines are advisory and judges can take other factors into account when deciding a sentence. Bredar said he would take particular note of two of those factors when sentencing the defendants: He wants to make sure that defendants around the country are being treated equally and that the sentences reflect the seriousness of the offense....
A federal judge in Maryland handed down lighter prison sentences Monday to defendants in a huge marijuana distribution case, saying that such offenses are "not regarded with the same seriousness" as they were just a few decades ago.
U.S. District Judge James K. Bredar said the federal government's response to marijuana legalization in some states — notably the decision not to pursue criminal cases against dispensaries and others handling the drug in accordance with those states' laws — raises concerns of "equal justice."
In handing down a nearly five-year sentence, Bredar said he felt Scott Russell Segal had committed a significant crime for his role moving hundreds of kilograms of marijuana and laundering the proceeds.
But the judge used his discretion to ignore federal guidelines, which equate marijuana with harder drugs like heroin and called for Segal to receive eight to 11 years in prison. A second defendant also got a shorter sentence than called for in the guidelines. "It's indisputable that the offense is not regarded with the same seriousness it was 20 or 30 years ago when the sentencing guidelines … which are still in use, were promulgated," Bredar said.
October 29, 2013 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack
Detailing new state reform efforts to ensure kids get treated as kids by criminal justice systemToday's New York Times has this big story about modern juvenile justice reforms under the headline "A Bid to Keep Youths Out of Adult Prisons." The piece is mostly focused on a recent reform in Colorado, but here is an excerpt discussing the national trends:
In a reversal of the tough-on-crime legislation that swept the nation in the late 1980s and ’90s, nearly half of the states have now enacted one or more laws that nudge more young offenders into the juvenile justice system, divert them from being automatically tried as adults and keep them from being placed in adult jails and prisons.
Sarah Brown, a director of the criminal justice program at the National Conference of State Legislatures, said the shift stems from a decline in juvenile crime, concerns about the costs of adult prisons and a growing understanding of adolescent brain development showing that the young have a greater potential for rehabilitation.
The Supreme Court has increasingly taken neurological research into account on juvenile justice issues — most recently in a 2012 case, Miller v. Alabama, which barred mandatory life sentences without the possibility of parole for those who committed their crimes before they turned 18. Justice Elena Kagan’s majority opinion in the case cited adolescents’ “diminished culpability and heightened capacity for change.”
Eleven states, including Pennsylvania, Texas and Virginia, have passed laws that keep most young offenders out of adult jails and prisons. Eight states, including California, Missouri and Washington, passed laws that alter mandatory minimum sentencing for young offenders charged as adults. Four — Connecticut, Illinois, Massachusetts and Mississippi — have broadened the powers of their juvenile courts, enabling them to take cases of juveniles who would have automatically been tried as adults. And 12 states, including Arizona, Nevada, Ohio and Utah, have adjusted the laws governing the transfer of young offenders into the adult system in ways that make it more likely that they will be tried as juveniles.
Many of these bills have passed with bipartisan support in states both Republican and Democratic and with the testimony of the young who are affected and their families, said Liz Ryan, the president of Campaign for Youth Justice, which recently issued a report on the shifts.
October 29, 2013 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack
Jesse Jackson Jr. unable to check in early to federal prison systemThis new story from the Chicago Tribune about the failed attempt by a fallen prominent politician provides some further evidence that few get special treatment from the federal Bureau of Prisons. The piece is headlined "Jackson Jr. turned away after showing up at prison early," and here are the (amusing?) details:
Convicted former Rep. Jesse Jackson Jr. tried to report Monday to a federal prison in North Carolina but was turned away, a prison spokesman said this morning.
Chris McConnell, executive assistant at Butner Federal Correctional Complex near Durham, declined to specify why Jackson was not allowed to surrender to the prison, but the ex-congressman did appear at Butner days earlier than expected. The sentencing judge had told Jackson to report no earlier than Friday, court documents show.
McConnell said the former lawmaker was turned away during the afternoon hours. He said press accounts in which Rep. G. K. Butterfield, D-N.C., described a paperwork problem being worked out at the prison were “very accurate.” Butterfield reportedly accompanied Jackson to the prison.
At the Bureau of Prisons in Washington, spokesman Ed Ross said this morning he could confirm that Jackson was not in bureau custody. He declined to elaborate on what occurred Monday or to say what is expected to happen next. It was not immediately clear when Jackson would be able to start his 30-month prison sentence.
Jackson was sentenced in the U.S. District Court for the District of Columbia after pleading guilty. Sheldon Snook, the administrative assistant to its chief judge, said today that he reviewed Jackson’s court docket and saw no change from a judgment entered in August indicating the former congressman shall surrender “no earlier than Nov. 1, 2013.” That is Friday....
The confusion over Jackson's whereabouts began Monday when his lawyer's spokeswoman said the ex-congressman had reported to prison. Bunnie Jackson-Ransom, an Atlanta publicist for Jackson lawyer C.K. Hoffler, said Jackson arrived at the Butner Federal Correctional Complex in North Carolina sometime after 2 p.m. Chicago time Monday. But McConnell, contacted late Monday afternoon, denied Jackson was in custody. And Ross cited the "inmate locator" on the prison system's website, which listed Jackson as "not in BOP custody" -- a status that remained as of 7 a.m. today Chicago time....
Jackson, 48, who was convicted of looting his campaign fund of $750,000, has been given an inmate number: 32451-016. Jackson is expected to join other high-profile felons at Butner. It is home to rogue financier Bernard Madoff; spy Jonathan Pollard; Omar Ahmad Rahman, the "blind sheik" convicted for plotting to blow up New York City landmarks; and Jon Burge, the former Chicago police commander under whose watch African-American suspects were tortured into making false confessions to rape and murder, records show....
Jackson, the son of civil rights leader the Rev. Jesse Jackson, reportedly has depression and bipolar disorder. Jackson Jr. pleaded guilty to stealing $750,000 from his campaign from 2005 to 2012 to pay for vacations, furs, celebrity memorabilia and even two elk heads. He was ordered to pay $750,000 in restitution. According to a court filing last week, the ex-congressman will pay $200,000 by Friday and then sell his Washington home. By May 15, attorneys will give the judge a report on how much he has paid.
Some prior related posts on Jackson prosecution and sentencing:
- You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?
- Jacksons plead guilty and federal prosecutors recommend significant prison terms for both
- Months before scheduled sentencing, lawyers buzzing about Jesse Jackson Jr.'s mental health
- "Will the Jacksons get a slap on the wrist, or will their heads be mounted?"
- "Both Jacksons get prison terms, Jackson Jr. to serve first"
California judge now criticized by victim's family for marrying defendant after sentencing him to lifeIn this post from earlier this month, I highlighted a local story headlined "Judge sentences killer, performs wedding," involving a defendant having two notable (and surely life changing) experiences on one sentencing day. This new story, headlined "San Diego judge criticized for officiating at wedding of killer," now provides this follow-up:
A San Diego judge is being criticized for officiating at the marriage of a convicted killer just minutes after sentencing him to prison. A lawyer representing the family of the defendant's victim has requested that Superior Court Judge Patricia Cookson apologize for officiating at the wedding just minutes after family members had testified "about the devastating impact (of) the murder of their loved one."
Cookson sentenced Danna Desbrow, 36, of Lemon Grove to 53 years to life in prison for his conviction in the killing of Kevin Santos. After having the courtroom cleared of members of the Santos family, Cookson then married Desbrow and his longtime girlfriend at the latter's request. The judge also provided the couple with slices of cake, but it is unclear whether she baked it herself.
The incident, which occurred in the East County branch of the court, was reported Sept. 30 by the U-T San Diego. The newspaper last night posted on its website a letter to Cookson from attorney Paul Kamenar, representing the Santos family.
Cookson, 60, a former deputy district attorney and a judge since 1992, has declined to discuss the incident with reporters or the Santos family.
In his letter, Kamenar told Cookson that her conduct has caused "emotional pain" to the Santos family and "clearly violated" judicial ethics that call for judges to avoid "undermining public confidence in the integrity and impartiality of the judiciary." The Santos family did not know of the wedding until reading about it in the newspaper, Kamenar said.
"You stepped down from the bench, Bible in hand, and performed a full ceremony in your judicial robes, while the defendant was uncuffed, thereby putting yourself and court personnel in danger," according to the letter.
October 28, 2013
"Criminals and Campaign Cash: The Impact of Judicial Campaign Spending on Criminal Defendants"The title of this post is the title of this notable new report released today by the Center for American Progress. At this link, one can find a summary of the report's highlights, from which I have drawn this excerpt:
As state supreme court campaigns become more expensive and more partisan, the fear of being portrayed as “soft on crime” is leading courts to rule more often for prosecutors and against criminal defendants.
That is the disturbing finding of this Center for American Progress study, which explores the impact on the criminal justice system of the explosion in judicial campaign cash and the growing use of political attack ads in state supreme court elections, which have increased pressure on elected judges to appear “tough on crime.” In carrying out this study, CAP collected data on supreme courts that, between 2000 and 2007, saw their first election in which the candidates and independent spenders spent more than $3 million. This includes high courts in Illinois, Mississippi, Washington, Georgia, Wisconsin, Nevada, and West Virginia. For each of these courts, CAP examined 4,684 rulings in criminal cases for a time period starting five years before a given state’s first $3 million high court election and ending five years after that election.
The findings reveal a clear trend: As campaign cash increased, the courts studied began to rule more often in favor of prosecutors and against criminal defendants....
These results suggest that, just as judges are more likely to rule against criminal defendants as elections approach, state supreme courts are more likely to rule for the state as the amount of money in high court elections increases.
These findings have important implications for the debates over reforming our criminal justice system. In the past 50 years, the U.S. government has cracked down on drug crimes and provided financial incentives for states to do the same. The so-called War on Drugs has resulted in over-incarceration and the growth of private prisons, which has given certain companies a financial incentive in maintaining this status quo. But as the financial cost of the nation’s drug war has become clear, Americans are debating whether our punitive approach is working. The federal government is scaling back the use of harsh mandatory minimums, and some states, including Georgia, are experimenting with alternative sentencing. If reformers want to stop over-incarceration and ensure that criminal defendants are treated fairly, they must also speak out about the politicization of judicial elections and the tarring of judges as being soft on crime in attack ads, a practice that compels courts to rule for the state and against defendants.
The enormous sums of money spent in recent judicial elections have fueled an increase in attack ads targeting judges. State supreme court candidates raised more than $200 million between 2000 and 2009 — two and a half times more than in the 1990s. A record $28 million was spent on television ads in 2012 high court elections, with half of this money coming in the form of independent spending, according to Justice at Stake and the Brennan Center for Justice. These independent spenders are more likely than the candidates’ campaigns to run attack ads.
Most of these attack ads allege that a certain judge is soft on crime, telling voters that he or she ruled in favor of a violent criminal without any context or discussion of the legal issue at stake. A single ruling in a case, replete with gruesome facts, can provide fodder for an attack ad. A 2012 candidate for the Ohio Supreme Court, for example, was attacked by the state Republican Party, which alleged in an ad that the judge — Democrat Bill O’Neill — had “expressed sympathy for rapists” in one of his opinions. During the 2004 West Virginia Supreme Court election, a group funded by coal mogul Don Blankenship warned that an incumbent justice “voted to release” a “child rapist” and then “agreed to let this convicted child rapist work as a janitor in a West Virginia school.” Another campaign ad, this one in the 2012 Louisiana Supreme Court race, claimed that one of the candidates had “suspended the sentence of a cocaine dealer, of a man who killed a state trooper, two more drug dealers, and over half the sentence of a child rapist.”
These attack ads distort rulings in criminal cases to play on voters’ fears, and they create political pressure on judges to rule in favor of the state. Moreover, judicial candidates themselves are running ads that proclaim their tough-on-crime approach, even though judicial ethics rules prohibit candidates from expressing a bias for or against certain litigants, including criminal defendants.... [T]his report briefly outlines how media images shape attitudes on crime and describes how these attack ads became more prevalent. The report then looks at the special interests bankrolling these ads and profiles four of the states studied — Illinois, Mississippi, Washington, and Georgia — and the experiences of each high court with attack ads and their fallout.
"Is Guilt Dispositive? Federal Habeas after Martinez"The title of this post is the title of this notable new article about federal habeas corpus law and practice available via SSRN and authored by Justin Marceau. Here is the abstract:
Federal habeas review of criminal convictions is not supposed to be a second opportunity to adjudge guilt. It has been said, by Oliver Wendall Holmes among others, that the sole question on federal habeas is whether the prisoner’s constitutional rights were violated. By the early 1970s, however, scholars criticized this rights-based view of habeas and sounded the alarm that post-conviction review had become too far removed from questions of innocence. Most famously, in 1970 Judge Friendly criticized the breadth of habeas corpus by posing a single question: Is innocence irrelevant? In his view habeas review that focused exclusively on questions of rights in isolation from questions of innocence was misguided.
Over the last forty years the habeas landscape has changed so dramatically — both through statutory and common law limits on the writ — that it is appropriate to ask a very different question: Is guilt dispositive? Both substantive law and habeas procedure has evolved so as to substantially disadvantage a guilty habeas petitioner. In many cases regardless of the merits of the constitutional claim, strong evidence of guilt is dispositive in ensuring that relief is denied. A recent trilogy of cases from the last couple of years — Holland v. Florida, Maples v. Thomas, and most importantly, Martinez v. Ryan — signal a potential shift in the Court’s innocence orientation. This Article explores the potential impact of these decisions and in particular argues that they may provide a roadmap for a proceduralist approach to modern habeas — that is, habeas review that prioritizes fair procedures over innocence. The impact of Friendly’s call for greater focus on innocence was gradual but profound, and this Article argues that the Martinez-trilogy may be similarly important in reversing habeas’ four-decade-long infatuation with innocence.
NY Times editorial (poorly) urges better assessments of "Why Prisons Are Shrinking"Today's New York Times has this new editorial headlined "Why Prisons Are Shrinking" making these important points:
The mandatory sentencing movement that swept the United States beginning in the 1970s drove the state prison population up from less than 200,000 to about 1.4 million today and made corrections the second-fastest-growing state expense after Medicaid. But bipartisan sentencing reforms in a growing number of states are starting to reverse that trend — causing the prison population to decline by about 3.8 percent since 2009.
Underlying the state reforms is a relatively new and more sophisticated way of using data about the offender — including criminal history, drug abuse and instances of antisocial behavior — to assess the likelihood of that individual’s committing a new crime. And by examining arrest, sentencing and probation data, the states can revise policies that might be driving people back into prison unnecessarily....
Despite the merits of a risk-assessment approach, a report issued earlier this year by the Council of State Governments Justice Center said that many states are still flying blind, because they don’t have the resources to gather data. Moreover, the study noted, handling high-risk and low-risk offenders in the same way is a big mistake, because “low risk individuals have an increased likelihood of recidivism when they are oversupervised or receive treatment or services in the same programs as medium- and high-risk individuals.”
There are proven ways to move away from discredited, ruinously expensive corrections policies. More states need to adopt these approaches.
I am fully supportive of the ideas and themes in this editorial, but a lot more could and should be said at this dynamic moment of sentencing and corrections reform. For example, in the wake of the lastest crime data indicating a spike up in national violent and property crimes (discussed here), this editorial should be stressing the need and importance of a careful state-by-state examination of where crime is going up and whether new (and still emerging) data on changes imprisonment rates and crimes rates provide critical new lessons concerning what we can now conclude about the connections between crime and punishment.
In addition, I think this editorial (and other advocacy concerning these critical issues) ought to be urging sustained examination and analysis of a handful of big jurisdictions in which stories of crime and punishment have been especially dynamic over the last few years. Specifically, I strongly believe that the big states of California, Illinois, New York and Texas, all of which have diverse urban and rural regions and all of which have changes its sentencing laws in diverse ways in recent years, should be a special focal point for sorting through and fairly assessing "proven ways to move away from discredited, ruinously expensive corrections policies."
Last but not least, federal sentencing realities and reform discussions — as well as the interesting "new politics" of criminal justce reform — should be brought into these discussions ASAP. The federal prison population continues to grow despite the reforms ushered in by the Fair Sentencing Act, and it is now unclear whether or when any additional proposed federal sentencing reforms will get through Congress and if any of these reforms will effectively incorporate "proven ways to move away from discredited, ruinously expensive corrections policies." More broadly, I think this editorial (and other advocacy concerning these critical issues) should be urging Congress — and especially those eager to support state rights and state-level solutions — to help provide states with the "the resources to gather data" and build on successful reform efforts. (For example, I have long believe the feds ought to be conducting a kind of "race to the top" federal funding competition to motivate the better development and analysis of state-level crime and punishment data.)
Just a few of many recent related posts:
- Uh-oh: BJS reporting significant spike up in violent and property crime for 2012
- FBI releases 2012 crime statistics showing stability in relatively low crime rates
- New National Academy of Sciences effort seeking to unpack the crime decline
- "Conservatives latch onto prison reform"
- Alabama rolls out new presumptive sentencing guidelines (which prosecutors mostly oppose)
- Guess which state has the highest rate of incarceration of black men in the entire US?
- "Three myths about conservatives and criminal justice" ... which are really stories about (slowly) changing modern realities
- Federal sentencing reform: an unlikely Senatorial love story and a Booker double-dose?
- Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?
October 28, 2013 in National and State Crime Data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack
"No Drugs, No Executions: The End of the Death Penalty"The title of this post is the headline of this lengthy new article in The National Journal. The piece, which carries the sub-heading "As states scramble to find new cocktails of death, could a lack of options spell the end of capital punishment?," merits a full read. Here are a few excerpts:
On Oct. 15, Florida executed William Happ, a man who most agreed deserved little sympathy. Happ kidnapped 21-year-old Angela Crowley in 1986 from outside a convenience store in Crystal River and raped and strangled her before dumping her tormented body into the Cross Florida Barge Canal....
Happ died for his crimes committed 27 years ago. Like hundreds before him, Happ's death was administered through an intravenous injection of a lethal drug cocktail. Like no one before him, Happ was injected with midazolam hydrochloride, a sedative that had never before been used for an execution in the United States.
Happ's execution reflects an American death-penalty system in crisis: States are running out of the drugs they rely on to carry out death sentences as alternatives for how to secure them quickly diminish. And no one wants to innovate in the execution industry. As the medical community works to distance itself from the science of killing people, states are attempting to forge a difficult road ahead, one fraught with litigation, international tension, and uncertainty....
Florida is just one of several states scrambling to update or refine its capital-punishment protocol amid a sudden shortfall of its lethal injection drugs, resulting in an unprecedented inconsistency in the way inmates are executed in the United States. Even as a steady majority continues supporting the death penalty, the difficulty in obtaining new lethal drugs, associated legal hurdles, and a gaping void of better execution alternatives has left capital punishment in America with an uncertain future....
Eight days after Florida executed Happ, Missouri planned to put Allen Nicklasson to death with propofol. The anesthetic, which contributed to Michael Jackson's death by overdose in 2009, had also never been used before for a human execution. But buckling from pressure from the medical community, which argued propofol could inflict inhumane levels of pain, Gov. Jay Nixon halted Nicklasson's execution to ensure "justice is served and public health is protected." But a more practical matter was likely weighing on Nixon's mind: German manufacturer Fresenius Kabi had threatened to stop shipping propofol to the U.S. if the drug was allowed to be used for executions....
Doctors and researchers aren't exactly clamoring to develop new methods of killing people, and no one is advocating a regression to older forms of execution, like the electric chair or gas chamber. But even if a new, cutting-edge technique was developed somewhere, that too would almost certainly provoke a torrent of litigation.
UPDATE: Just this afternoon, I saw this local story from my own Columbus Dispatch reporting that a "shortage of pentobarbital will force Ohio prisons officials to rely on two drugs they have never used before for the scheduled Nov. 14 execution of Ronald Phillips of Summit County."
Given Ohio's history with lethal injection litigation, I would expect there to be some court action concerning this development in the next few weeks. Whether that court action is likely to delay any scheduled executions is hard for me to predict.
October 27, 2013
Federal sentencing in Kansas to focus on "market value of deer" illegally killedAs reported in this unavoidably amusing article, headlined "Value of deer key in Kansas hunting camp sentencing," a federal district judge is going to be required to do a market analysis of illegally hunted deer in order to properly calculate the federal guideline range of a couple of hunting scoundrels. Here are the details:
For years, hunters trekked to Camp Lone Star near Coldwater where prosecutors say they paid thousands of dollars to illegally kill deer in Kansas. On Monday, what is believed to be one of the largest criminal investigations involving the illegal taking of deer draws to a close with the re-sentencing of two Texas brothers who ran the operation from 2005 to 2008.
James Bobby Butler Jr., the owner and operator of the hunting camp, and his brother, Marlin Jackson Butler, who worked as a guide, admitted in 2011 to violating the Lacey Act, a federal law that prohibits the interstate transport of any wildlife taken in violation of state regulations. The brothers, both from Martinsville, Texas, pleaded guilty to felony charges of conspiracy to violate the Lacey Act and violation of the Lacey Act....
The 10th Circuit Court of Appeals, in its decision last year, said the district court made a mistake in 2011 in calculating sentences based on the full price of a guided hunt, rather than the actual retail value of the animals.
U.S. District Judge Monti Belot is expected to hear testimony at Monday’s hearing about the market value of deer as well as the conduct of the Butler brothers in other uncharged poaching incidents to come up with new sentences. He must also rule on the appropriateness of a hunting and guiding ban for James Butler.
John Brooks, the agent from the U.S. Fish and Wildlife Service who led the investigation, is expected to take the stand for the government. The defense plans to call several people who hunted at the camp. Both sides are also bringing in expert witnesses to testify as to the market value of antlers and other deer parts....
James Butler was initially sentenced by the late U.S. District Judge Wesley Brown to 41 months in prison and ordered to pay a $25,000 fine and $25,000 in restitution. Marlin Butler was initially sentenced to 27 months in prison and ordered to pay a $10,000 fine and $10,000 in restitution. Those initial sentences were thrown out by the appeals court when it sent the case back for re-sentencing.
"Democracy on Display: A Case for Public Sanctions"The title of this post is the headline of this intriguing new piece by Zachary Baron Shemtob now available here via SSRN. Here is the abstract:
This article begins by discussing the work of Jason Brennan, who argues that voter ignorance is inherently and instrumentally problematic to democratic governance. I then apply this point to the contemporary criminal justice system and penology. I argue that voters’ lack of knowledge here is both unjust on those punished and, using the recent work of William J. Stuntz and others, has resulted in egregious consequences.
The majority of the article focuses on the advantages and disadvantages of public punishments, concluding that such sanctions have great potential to challenge citizens’ ignorance of our penal system. Ultimately, the goal is not to offer any sort of definitive conclusion, but to begin a long-overdue discussion on the role of public ignorance in our broken prison system, and one way in which such ignorance might be dispelled.