December 21, 2013
"If our prisons were a country, what would Incarceration Nation look like?"
The title of this post is the headline of this fascinating commentary by lawprof Rosa Brooks, which merits a read in full. Here are just a few highlights from a very interesting piece:
You already know that the United States locks up a higher percentage of its population than any other country in the world. If you look at local, state and federal prison and jail populations, the United States currently incarcerates more than 2.4 million people, a figure that constitutes roughly 25 percent of the total incarcerated population of the entire world.
A population of 2.4 million is a lot of people -- enough, in fact, to fill up a good-sized country. In the past, the British Empire decided to convert a good chunk of its prison population into a country, sending some 165,000 convicts off to Australia. This isn't an option for the United States, but it suggests an interesting thought experiment: If the incarcerated population of the United States constituted a nation-state, what kind of country would it be?
Here's a profile of Incarceration Nation:
Population size: As a country -- as opposed to a prison system -- Incarceration Nation is on the small side. Nonetheless, a population of 2.4 million is perfectly respectable: Incarceration Nation has a larger population than about 50 other countries, including Namibia, Qatar, Gambia, Slovenia, Bahrain and Iceland....
Population Density: No matter how you look at it, Incarceration Nation is a crowded place. If we assume a land area of 2,250 square miles, it has a population density of roughly 1,067 people per square mile, a little higher than that of India. Of course, the residents of Incarceration Nation don't have access to the full land-area constituting their nation: most of them spend their days in small cells, often sharing cells built for one or two prisoners with two or three times that many inmates....
A nation of immigrants: Like many of the smaller Gulf States, Incarceration Nation relies almost entirely on immigration to maintain its population. You might even say that Incarceration Nation is a nation of displaced persons: most of its residents were born far away from Incarceration Nation, which has a nasty habit of involuntarily transporting people hundreds and sometimes thousands of miles away from their home communities, making it extraordinarily difficult for residents to maintain ties with their families. In New York, for instance, one study found that "70 percent of incarcerated individuals are in prisons over 100 miles from their homes" -- often in "isolated rural areas that are inaccessible by direct bus or train routes."...
Gender balance: International attention to gender imbalances has tended to focus on China, India and other states, but Incarceration Nation has the most skewed gender ratio of any country on Earth: men outnumber women by a ratio of about 12 to 1.
Racial and ethnic makeup: If Incarceration Nation were located in a geographical region matching its racial and ethnic makeup, it would probably be somewhere in the Southern Hemisphere, perhaps near Brazil. Roughly 40 percent of the incarcerated population is of African descent, another 20 percent is of Hispanic descent, and the remaining 40 percent are Caucasian or mixed....
Health: Incarceration Nation doesn't do so well here. One recent study found that the incarcerated are "more likely to be afflicted with infectious disease and other illnesses associated with stress."...
Per Capita Spending: Judged by per capita government spending, Incarceration Nation is a rich country: its government spends an average of about $31,000 per year on each incarcerated citizen. (State by state, costs vary. Kentucky and Indiana spend less than $15,000 on each inmate per year, while in New York State, the per capita cost per inmate is more than $60,000 a year. In New York City, per capita costs for jail inmates reach an astronomical $168,000 per year.) Internationally, only little Luxembourg spends as much on its citizens as Incarceration Nation; among the generally wealthy states of the Organization for Economic Cooperation and Development, average per capita spending is under $15,000, and Sweden, France, Germany, Canada, the United States and the United Kingdom all spend under $20,000 per year on each citizen.
Gross Domestic Product: Incarceration Nation doesn't have a GDP, per se, but that doesn't mean it doesn't turn a profit -- sometimes, and for some people. For American taxpayers, aid to Incarceration Nation is pretty expensive: looking at just 40 U.S. states, the Vera Institute of Justice found that the cost to taxpayers of incarceration in these states was $39 billion. Overall, federal and state governments spend an estimated $74 billion on prisons each year. (This doesn't count spending on state and local jails.) How much is $74 billion? It's higher than the GDP of more than half the countries in the world, including Lebanon, Paraguay, Nepal and Lithuania.
Some people make a lot of money from Incarceration Nation. Incarceration Nation employs about 800,000 people as prison guards, administrators and the like -- almost as many people as are employed in the entire U.S. automobile industry -- and in some rural areas, prisons are the main employers. But the real money goes to the operators of private prisons and the companies that make use of prison labor.
December 20, 2013
Just how many prominent, successful men are child porn fiends?
The question in the title of this post has been one kicking around in my head since the breaking of last week's news that Senator Lamar Alexander’s chief of staff arrested on child pornography charges (basics reported here). Days later, this child porn story broke in my town concerning a 23-year veteran of the Columbus police force admitting to collecting child porn for a decade. With those stories fresh in mind, I came across this morning this disturbing collection of headlines and stories concerning other prominent, successful men getting sentenced (disparately?) for child porn offenses:
New Sentencing Project policy brief on drug-free zones
I just received an e-mail promoting this new briefing paper from The Sentencing Project titled Drug-Free Zone Laws: An Overview of State Policies. Here is how the paper starts:
The premise behind drug-free zone laws was that drug trafficking near schools posed a danger to children. In order to protect children from drug activity, lawmakers established protected zones around the places where children were most likely to be present, including schools and public parks. Individuals caught using or selling drugs within the protected zone faced substantially higher penalties than others who engaged in the same conduct outside the zone.
The application of drug-free school zone laws has proved problematic for several reasons:
• First, in the sentencing schemes of several states defendants may face two distinct penalties for a single offense.
• Second, the laws are frequently drafted so broadly that they result in enhanced penalties for drug offenses that are a substantial distance from a school, that do not involve school children in the offense, or take place outside of school hours. In Alabama, for example, a drug sale that takes place as much as three miles from a school, college, or public housing project is subject to a mandatory five-year prison term.
• Third, because protected areas are clustered within urban, high-density population areas, the zones disproportionately affect people of color and economically disadvantaged citizens.
In recent years, these problems have led at least seven states, including Connecticut, Delaware, Indiana, Kentucky, Massachusetts, New Jersey, and South Carolina, to reform their drug-free zone laws. This briefing paper provides an overview of these statutes nationally and an assessment of reform activity in recent years.
"Sentencing Juveniles: Eliminate the Bright-Line Rule of Majority"
The title of this post is the title of this new article by Katie Ryan Van Camp just now appearing on SSRN. Here is the abstract:
The United States Supreme Court’s often stated view that “death is different” has led to a line of decisions in which the Court carved out categorical Eighth Amendment exceptions for certain groups. These cases hold that courts should not give the death penalty to individuals within those groups. In Atkins v. Virginia, for example, the leading case within the “death is different” line, the Court held that the death penalty was not an appropriate punishment for mentally retarded offenders because it constituted cruel and unusual punishment in violation of the Eighth Amendment. The Court continued to carve out exceptions for certain groups including juveniles.
Then the Court’s view regarding the Eighth Amendment’s prohibition against cruel and unusual punishment evolved. No longer was “death” the only “different;” now, juveniles could be considered “different.” Following Roper, in which the Court held that sentencing juveniles — those under the age of eighteen — to death constituted cruel and unusual punishment in violation of the Eighth Amendment, a line of cases emerged in which the Court continued to carve out more exceptions for juveniles.
In each of these landmark decisions, the Court has found that to be considered a juvenile, the individual must be under the age of majority. As found in Roper, and consistently followed in the other decisions within this line of cases, the age of majority is eighteen. Although the Court acknowledged that there are some juveniles under the age of majority who have attained a level of maturity “some adults will never reach” and “the qualities that distinguish juveniles from adults do not disappear when an individual turns 18,” the Court drew a line. Thus, the age of majority is a bright-line rule.
Heeding the Court’s own words, it should recognize that juveniles who are aged seventeen and those aged eighteen arguably are no different. Research also suggests this to be true. This article argues, therefore, that because of the uncertainty surrounding “juvenile” brain development and because the bright-line rule of majority prevents courts from determining if an individual under the age of eighteen, the age of majority, has the requisite culpability deserving of the categorically excluded punishments, the Court should eliminate the bright-line rule of majority. Further, although the majority of juveniles should not receive certain categorically excluded harsh punishments, a few should still receive those punishments, and it should be an option for all.
Part I of this article serves as background on the bright-line rule of majority and its application in “juveniles are different” cases. Part II of this article argues that the Court should eliminate the bright-line rule of majority. Part III of this article proposes a solution to the bright-line rule problem; that is, a case-by-case analysis should decide cases involving juveniles with age being another sentencing factor considered. Age will thus act as an aggravating or mitigating factor in the sentencing phase of the criminal proceeding. Finally, Part IV of this article explains why a case-by-case analysis considering age as a sentencing factor is better than a bright-line rule of majority and addresses the potential counter-arguments to this proposal.
Should elected officials be subject to drug tests? And then forced to resign if they fail?
The questions in the title of this post are prompted by this new Politico article headlined "Trey Radel likely won’t resign after leaving rehab." Here are excerpts:
Despite an eventful two months that saw an undercover cocaine bust and a stint in drug rehab, Florida Rep. Trey Radel (R) doesn’t sound like a man who is going to resign.
On the same day he walked out of a Naples, Fla., drug rehabilitation clinic, the freshman congressman — who pleaded guilty to possessing cocaine in November — said he is wrestling with what he describes as a problem with alcohol, and added that he loves “serving” his southwest Florida constituents. “I’m excited to begin this process of rebuilding your trust and doing what you elected me to do,” Radel said at the news conference.
Radel, a freshman member of the House, was caught buying cocaine from an undercover federal agent near Dupont Circle in October. Radel bought what’s commonly known as an “eight ball” of cocaine from a federal agent, according to court records. When he realized he was purchasing the drug from a federal agent, he tried to throw it away, the records detail. When those agents entered his D.C. apartment, Radel handed over more cocaine. He pleaded guilty to possessing the drug in D.C. court in November, and entered a rehabilitation facility on Nov. 21. He has been on leave from the House.
Radel pledged to answer all questions at the news conference, but declined to detail the timeline of his cocaine use, or answer questions about why he waited nearly a month between getting caught buying cocaine and revealing it to the public. Radel said he was not with any other member of Congress when he was caught buying cocaine, and said elected officials should be subject to drug tests. He said he only used cocaine a handful of times.
The court of public opinion isn’t his only judge. The House Ethics Committee is investigating the incident. Radel pledged to “cooperate” with that inquest “in every absolute possible way that I can.”
December 19, 2013
Clemency christmas miracle?: Prez Obama communiting 8 pre-FSA crack sentences and granting 13 pardons
As reported in this new article from the New York Times, "President Obama, expanding his push to curtail severe penalties for drug offenses, is expected on Thursday to commute the sentences of eight federal inmates who were convicted of crack cocaine offenses. Each inmate has been imprisoned for at least 15 years, and six were sentenced to life in prison." Here is more about this interesting and exciting news:
It would be the first time retroactive relief was provided to a group of inmates who most likely would have received significantly shorter terms if they had been sentenced under current drug laws, sentencing rules and charging policies. Most of the eight would be released in 120 days.
In a statement prepared for release when the commutations are announced, Mr. Obama said that each of the eight men and women had been sentenced under what is now recognized as an “unfair system,” including under a 100-to-1 sentencing disparity between crack and powder cocaine offenses that was significantly reduced by the Fair Sentencing Act of 2011.
“If they had been sentenced under the current law, many of them would have already served their time and paid their debt to society,” Mr. Obama said. “Instead, because of a disparity in the law that is now recognized as unjust, they remain in prison, separated from their families and their communities, at a cost of millions of taxpayer dollars each year.”
The recipients include several high-profile inmates who have received news media attention as examples of the effects of earlier tough-on-crime drug sentencing policies, in which the quantities of crack involved sometimes resulted in severe punishments. Many of them were young at the time of their offense and were not accused of violence.
Clarence Aaron of Mobile, Ala., for example, was sentenced to three life terms in prison for his role in a 1993 drug deal, when he was 22. Mr. Aaron’s case has been taken up by congressional critics of draconian sentencing and by civil rights groups, and has received significant media attention. Last year, the Justice Department’s inspector general issued a report criticizing the department’s pardon office for mishandling his clemency petition.
Margaret Love, a former Justice Department pardon lawyer who represents Mr. Aaron, said she received a call informing her of the decision on Thursday morning and called her client, who along with his family was “very grateful.”
“He was absolutely overcome,” she said. “Actually, I was, too. He was in tears. This has been a long haul for him, 20 years. He just was speechless, and it’s very exciting.”
Mr. Obama, who has made relatively little use of his constitutional clemency powers to forgive offenses or reduce sentences, is also expected to pardon 13 people who completed their sentences long ago. Those cases involved mostly minor offenses that resulted in little or no prison time, in line with previous pardons he has issued.
But the eight commutations opened a major new front in the administration’s criminal justice policy intended to curb soaring taxpayer spending on prisons and to help correct what the administration has portrayed as unfairness in the justice system. Recipients also include Reynolds Wintersmith, of Rockford, Ill., who was sentenced in 1994 to life in prison for dealing crack when he was 17, and Stephanie George of Pensacola, Fla., who received a life sentence in 1997, when she was 27, for hiding a boyfriend’s stash of crack in a box in her house. In both cases, the sentencing judges criticized the mandatory sentences they were required to impose by federal law at the time, calling them unjust.
In December 2012, The New York Times published an article about Ms. George’s case and the larger rethinking of the social and economic costs of long prison terms for nonviolent offenders. Mr. Obama mentioned the article in an interview with Time magazine later that day and said he was considering asking officials about ways to do things “smarter.”
Around that time, a senior White House official said, Mr. Obama directed Kathryn Ruemmler, his White House counsel, to ask the Justice Department to examine pending clemency petitions to assess whether there were any in which current inmates serving long sentences would have benefited from subsequent changes to sentencing laws and policy. The deputy attorney general, James M. Cole, returned the eight cases with positive recommendations from the department about six weeks ago, the official said....
Legislation pending in Congress, including a bill co-sponsored by Senators Richard J. Durbin, Democrat of Illinois, and Mike Lee, Republican of Utah, would make the Fair Sentencing Act retroactive for some offenders, and it would build into the system a process for inmates to apply to a judge for case-by-case review of whether a reduced sentence would be appropriate. The Obama administration supports that bill, the White House said, as a more orderly and regular way to ensure individualized analysis in addressing the broader inmate population.
According to the group Families Against Mandatory Minimums, about 8,800 federal inmates sentenced for crack offenses before the Fair Sentencing Act would be eligible to apply for a reduced sentence were the bill to become law. “Commuting the sentences of these eight Americans is an important step toward restoring fundamental ideals of justice and fairness,” Mr. Obama said. “But it must not be the last. In the new year, lawmakers should act on the kinds of bipartisan sentencing reform measures already working their way through Congress. Together, we must ensure that our taxpayer dollars are spent wisely, and that our justice system keeps its basic promise of equal treatment for all.”
I am quite pleased Prez Obama is finally, finally, finally using his constitutional clemency powers in a truly consequential and meaningful way, and I am especially pleased that there are now eight more defendants (and families) who get some relief from the unfair 100-1 pre-FSA crack sentences that nobody ever seeks to defend substantively. However, the numbers reported above highlight that for every new bit of post-FSA fairness achieved by these commutations, a thousand other defendants (and families) must continue to live with the consequences of a reform that has been interpreted only to prevent future injustices and not fix past ones.
More broadly, though I do not want to turn a praiseworthy act by Prez Obama into an excuse for more criticism, there is a cynical voice in my head that is not only eager to fault the limited reach of this new round of clemency, but also its timing. Perhaps intentionally, these grants could (and perhaps should) be marginalized as just a holiday tradition, not as a bold statement of executive priorities. Even more worrisomely, as there is on-going talk of statutory sentencing reforms in Congress, these grants might provide some basis for opponents of broader reforms to contend that truly troublesome cases can and should be just handled and remedied by the executive branch.
Better summing up my cynicism is a response to this news from Professor Mark Osler: "Good news... But just one lifeboat off the titanic. With no structural change, the ship is still sinking."
December 19, 2013 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (13) | TrackBack
Bureau of Justice Statistics releases a whole slew of notable new corrections data
I just received an e-mail reporting on these new data publications released today by the Bureau of Justice Statistics. Here are the bare basics (with analysis perhaps to follow if anything special jumps out from these materials):
Correctional Populations in the United States, 2012 is available at this link: Summarizes data from various correctional collections to provide statistics on the number of offenders supervised by the adult correctional systems in the United States.
Prisoners in 2012: Trends in Admissions and Releases, 1991-2012 is available at this link: Presents final counts on prisoners under the jurisdiction of state and federal correctional authorities on December 31, 2012, collected in the National Prisoner Statistics (NPS) program.
Probation and Parole in the United States, 2012 is available available at this link: Presents data on adult offenders under community supervision while on probation or parole during 2012.
Data Analysis Tool Corrections Statistical Analysis Tool (CSAT) - Prisoners (Updated) is available at this link: This dynamic analysis tool allows you to examine National Prisoner Statistics (NPS) on inmates under the jurisdiction of both federal and state correctional authorities.
UPDATE: For focus especially interested in incarceration data, this lengthy Trends in Admissions and Releases document looks like the most notable and interesting of these reports. Helpfully, this BJS press release provides a lot of the highlights from all these reports, and I found this accounting from the press release of prison developments especially interesting:
- The federal prison system had the largest sentenced prison population (196,600 inmates) in 2012, followed by Texas (157,900), California (134,200), Florida (101,900) and New York (54,100).
- California (down 10 percent) had the largest prison population decrease in 2012, followed by Arkansas (down 9 percent), Wisconsin and Colorado (down 7 percent each).
- Overall, black males were 6 times and Hispanic males 2.5 times more likely to be imprisoned than white males in 2012.
- Black males ages 18 to 19 were almost 9.5 times more likely than white males of the same age group to be in prison. Among new court commitments to state prison, more than a third each of black and Hispanic offenders, and a quarter of white offenders were convicted of a violent offense.
- Between 1991 and 2011, the number of females admitted to state prison for newly committed violent offenses increased 83 percent.
Another high-profile insider trading conviction tees up another high-profile federal sentencing
As reported in this New York Times article, headlined "Former SAC Trader Is Convicted of Insider Trading," federal prosecutors got another notable conviction yesterday in a high-profile setting:
Prosecutors lacked the incriminating wiretaps that underpinned past insider trading cases. The emails pointed to no smoking gun. And the government’s star witness, a felon who testified to avoid prison time, fumbled his way through five days of cross-examination.
And yet a federal jury in Manhattan on Wednesday still convicted Michael S. Steinberg, the highest-ranking employee at SAC Capital Advisors to stand trial for insider trading. The verdict, delivered minutes after Mr. Steinberg, 41, fainted in the courtroom, underscored the futility of challenging the government’s crackdown on some of Wall Street’s most vaunted hedge funds.
On the eve of trial, prosecutors conceded that the case was not a slam dunk. But tapping into an anti-Wall Street sentiment — in opening arguments the lead prosecutor claimed that Mr. Steinberg broke the law “to get an illegal edge over ordinary investors who played by the rules” — apparently resonated with a jury of nine women and three men, including two accountants and a former postal worker.
The verdict hands the government a signature victory in its pincerlike pursuit of SAC, the giant fund run by the billionaire stock picker Steven A. Cohen. Coming just weeks after SAC pleaded guilty to insider trading charges and agreed to pay a record $1.2 billion penalty, Mr. Steinberg’s conviction further clouds the future of a firm that was once the envy of Wall Street. And it may also embolden federal authorities in their decade-long investigation of SAC.
Here are the post-conviction and sentencing basics noted in this article:
Judge Sullivan set Mr. Steinberg free on bail until his April 25 sentencing. Mr. Steinberg faces a maximum of 85 years in prison, but will almost certainly receive a sentence of only a few years. Mr. Steinberg’s lawyer, Barry H. Berke, did not immediately comment on the verdict but is expected to appeal.
Death Penalty Information Center releases annual report on capital punishment developments in 2013
This morning, the Death Penalty Information Center released its annual report on death penalty developments under the sparkling title, "The Death Penalty in 2013: Year End Report." The eight-page report is available at this link, and here are its list of "key findings" followed by the first part of the report's conclusion:
There were 39 executions in 9 states: only the second time in 19 years there were fewer than 40 executions.
There were 80 death sentences in 2013, a slight increase from 2012, but near the lowest number since 1973.
Maryland abolished the death penalty in 2013, the 6th state in six years to do so.
Public support for the death penalty reached its lowest level in 40 years.....
The number of executions, the size of death row, and the number of death penalty states all declined in 2013. Death sentences were near their lowest level since the reinstatement of the death penalty in 1976. Even many southern states, including South Carolina, Virginia, Tennessee, and Louisiana, had no death sentences in 2013. With Maryland’s repeal of capital punishment, the number of states without the death penalty grew to 18. Public support for the death penalty is at a 40-year low.
It is likely these trends will continue as more state legislatures consider repealing what has become a very expensive and unpredictable punishment. Nevertheless, over 3,000 people remain on death row, and some states like Florida and North Carolina have taken measures to expand the use of the death penalty.
The problems of mistakes, unfairness, and even the method of execution have exasperated many supporters of the death penalty, contributing to less reliance on capital punishment. Death sentences in Texas have declined by almost 80% since 1999. When examined on a county basis, only 2% of U.S. counties are responsible for the majority of executions and prisoners on death row. Because of restrictions by drug manufacturers, states have been forced to try new combinations of lethal drugs, some obtained from questionable sources, to carry out executions.
Though the DPIC's work is always impacted by its anti-death-penalty perspectives, I am always impressed by and grateful for the various ways the group collected and disseminates important information about the application of the death penalty throughout the United States.
December 18, 2013
"Plea Bargaining: Some Comparative Observations"
The title of this post is the title of this notable new (and notably short) piece providing a useful perspective on plea bargaining by Jacqueline Hodgson, a UK-affiliated author. Here is the abstract:
Plea and sentence bargaining is characterized by several general features that we might recognize as common across a range of jurisdictions and procedural traditions. It requires an admission of guilt from the accused; the accused is offered some reward, incentive or advantage, either in exchange for, or as a result of the plea; and there is some benefit to the criminal justice system -- typically the avoidance of a more lengthy and expensive contested trial. The point in the criminal process at which these negotiations are initiated, the personnel involved, and the relative incentives and benefits available will of course differ. In some instances, explicit bargains are struck between prosecutor and defense lawyer; in others, there is direct judicial involvement; and in others, the system benefit may operate as an implicit reward, without any explicit bargaining taking place.
Task force recommends broad changes to sentencing and corrections in Mississippi
As reported in this local article, headlined "Sweeping prison reforms suggested in Mississippi: More judicial discretion among proposals," there is now big talk about big reforms in The Magnolia State. Here are the details:
A criminal justice task force on Tuesday recommended sweeping reforms to reduce Mississippi’s soaring prison population and costs, standardize sentences and reduce recidivism. “This is the first time in my career — 32 years — that we have taken a comprehensive look at corrections in this state,” said Mississippi Department of Corrections Commissioner Chris Epps. “… We all know the cost of doing nothing.”
The recommendations include providing more discretion for judges to impose alternatives to prison and creating “true minimums” on when violent and nonviolent offenders are eligible for release. They also call for defining what constitutes violent crime — something officials said isn’t clear in state law. Proposals also include increasing the threshold from $500 to $1,000 for felony theft and lowering drug sentences for possession of small amounts while cracking down on large drug dealers.
Epps headed the bipartisan, 21-member task force of lawmakers, judges, prosecutors, law enforcement and defense attorneys. The group, after working for seven months with assistance from the Pew Charitable Trust’s Public Safety Performance Project, developed recommendations for the 2014 Legislature.
Gov. Phil Bryant, Lt. Gov. Tate Reeves, House Speaker pro tem Greg Snowden and others voiced their support for the proposal after the task force adopted it. The task force was created by a bill Snowden authored this year. Bryant said the reforms “put victims first,” protect public safety and provide “clarity of sentencing.” Reeves praised the recommendations as “evidence-based, data-driven, fiscally sound criminal justice reforms.”
While the nationwide trend has been lower prison population, Mississippi’s has skyrocketed since it passed some of the toughest “truth in sentencing” laws in the 1990s. The state now has more than 22,600 prisoners and the second-highest incarceration rate in the nation. Prison costs have risen from $276 million in 2003 to $361 million, with unchecked growth expected to result in 2,000 more inmates and cost taxpayers another $266 million over the next 10 years.
The state has attempted unsuccessfully to reduce prison costs with a patchwork of release policies that created confusion in sentencing and a disconnect between the judges/prosecutors and corrections. Uncertainty about how long convicts would serve helped push sentence lengths by 28 percent the last decade....
State Sen. Willie Simmons, D-Cleveland, said the proposed reforms are “historical,” and “create a better system as opposed to a build it (prisons) and they will come approach.”
Is there a real problem with animal cruelty federal sentences being way too short?
The question in the title of this post was my reaction to seeing this essay, titled "Vulnerable Victims: Increasing Animal Cruelty Sentences to Reflect Society's Understanding of the Value of Animal Lives," recently posted on SSRN. Authored by Adam Lamparello and Megan Boyd, here is the abstract for this essay:
More should be done to deter animal cruelty. Crush videos, which depict horrific acts of animal cruelty, should be banned. The advisory Guidelines range — as well as the five-year statutory maximum sentence for animal cruelty cases — should be substantially increased. Additionally, courts should continue to impose severe sentences upon those who subject animals to senseless and deadly violence. In so doing, the law will recognize the intrinsic value of animals as conscious, living creatures worthy of legal and constitutional protection.
Candidly, I am not sure I fully understand or approve why many or even any animal cruelty should be prosecuted in federal courts. Though I can imagine settings in which dog-fighting, cock-fighting and other inter-state economic activities based on animal abuse implicate important federal interests, the underlying animal cruelty strikes me as typically a distinctly local activity that ought generally (if not always) be prosecuted in local courts to better reflect local needs and interests. My sense is that there are lots of local variations on what is regarded as criminal treatment of animals (e.g., hunting pigeons in a New York City park likely will be viewed by the local community as much different than hunting pheasants in a South Dakota park). For such behavior, I always think local juries and local judges ought always be the primary, and perhaps the exclusive, assessors of criminality and what constitutes fair and effective punishment.
December 17, 2013
"Mom's Photos of Kids Rules 'Obsessive' but Not Pornography"
The title of this post is the headline of this interesting report from the New York Law Journal about an interesting state ruling concerning the definition of child pornography. Here are the details:
Brooklyn Family Court Judge Steven Mostofsky suggested in a recent decision that he knows what's not pornography when he sees it, and the images a camera-ready Brooklyn mother took of her kids are neither lewd nor obscene. Rather, Mostofsky said, they are the product of a mom who is perhaps a little too eager to capture the family's Kodak moments.
"Any parent knows that you cannot raise a child without making a mistake in judgment from time to time," Mostofsky wrote in Matter of CW, NN-02628-6/13. "And unless that mistake endangers your child or you violate a statute you have the right to correct your mistake without government interference in your family life."
The case began when a man lost his BlackBerry last April. The person who found it noticed that there were numerous photographs of naked children and turned it into police. That resulted in a bench warrant, an investigation by the Brooklyn district attorney and the removal of four children, ranging in age from 7 to 1 based on allegations that the parents had promoted a sexual performance by a child and possessed obscene images.
In one of the photographs, a 4-year-old girl is sleeping, with her legs splayed and her private parts visible. In another, a child is wearing nothing but boots that are far too big. And in another, a child apparently undergoing potty training is depicted in the bathroom with her pants down. Others show the children playing in the bathtub.
The Brooklyn District Attorney's Office executed a warrant and seized various electronic equipment from the parents' home, but did not charge the parents with a crime. Rather, several months later, the district attorney aided the Administration of Children's Services in filing a child abuse case against the parents based on the same photographs, according to court records. ACS alleged that the parents had sexually explicit photographs of their children and failed to cooperate with the agency in its investigation.
But at a hearing, there was no indication the children were in any jeopardy, Mostofsky said. The children's pediatrician, who had cared for the children since birth, said the family was "one of the most normal high functioning families" in his practice and he never saw any signs of abuse. Even the ACS caseworker testified that the children were not in an imminent danger....
The court dismissed the petition, finding no evidence that the parents violated any laws. Mostofsky said the photographs in question do not meet the definition of lewd and the parents did not promote obscene sexual performances.
What are the best and worst drugs for daily use by teens?
The title of this post is the (perhaps silly) question that came to my mind upon reading this new report on some new research headlined "Heavy Pot Use Linked To Memory Loss, Schizophrenia Link." Here are the basics:
Heavy pot users — smoking marijuana daily for three years — had abnormal changes in their brain structures related to working memory, U.S. researchers say. Lead study author Matthew Smith, an assistant research professor at Northwestern University Feinberg School of Medicine in Chicago, said poor working memory predicts poor academic performance and everyday functioning.
The groups in the study started using marijuana daily at ages 16 to 17 for about three years. At the time of the study, they had been marijuana free for about two years. Almost 100 subjects participated, including matched groups of healthy controls, subjects with a marijuana use disorder, schizophrenia subjects with no history of substance use disorders and schizophrenia subjects with a marijuana use disorder. The subjects who used marijuana did not abuse any other drugs, the researchers said.
Of the 15 marijuana smokers who had schizophrenia in the study, 90 percent started heavily using marijuana before they developed the mental disorder. Marijuana abuse has been linked to developing schizophrenia in prior research, Smith said.
“The abuse of popular street drugs, such as marijuana, might have dangerous implications for young people who are developing or have developed mental disorders,” said co-senior study author Dr. John Csernansky of Northwestern University Feinberg School of Medicine and Northwestern Memorial Hospital.
“This paper is among the first to reveal that the use of marijuana may contribute to the changes in brain structure that have been associated with having schizophrenia.”... The paper was published in the journal Schizophrenia Bulletin.
Modern brain science research has long had me convinced that it would be wise for everyone under the age of 25 to avoid all dangerous substances while their brains are still developing. Consequently, I am not at all surprised by a finding that daily use of marijuana could hurts developing brains. I wonder, though, whether it is likely to hurt developing brains more than daily use of alcohol or even some prescription drugs.
That said, I hope the relaxation of modern marijuana laws in many jurisdictions will facilitate a lot more serious scientific research on the various potential harms and benefits of the use and abuse of this widely-used and seemingly widely under-researched drug.
Cross posted at Marijuana Law, Policy and Reform.
"We wish you 70 years in prison, we wish you 70 years in prison, and an unhappy new life"
The title of this post is inspired by this local sentencing story and the song I could imagine in some Texas jurors' heads as they decided to "celebrate" the holiday season by sentencing a woman with a notably long and ugly criminal record to a notably long and harsh prison term. The story is headlined "Parker County 'Grinch' Sentenced to 70 Years in Prison," and here are the details:
A woman known as the Christmas “Grinch” for stealing Christmas lights from a Parker County family’s home was sentenced to 70 years in prison on Friday after she was convicted of a separate burglary.
Dana Brock, 44, of Hurst, shook her head when the judge read the jury’s sentence. Prosecutors pushed for a long sentence because of her lengthy criminal record.
Brock gained notoriety in December 2012 when she was caught on surveillance video stealing Christmas lights from outside a family’s Aledo home while they were inside sleeping. She was arrested again in May after she stole a weed wacker and a power washer from another homeowner’s garage. She also was caught on video in that case.
"One of our deputies who responded out to this case and looked at the surveillance video at the homeowner's house saw her on the video and said, 'Hey, that's the Grinch,’” said assistant Parker County district attorney Jeff Swain. “He knew right away who it was." A jury deliberated just five minutes before convicting her on Thursday.
In the sentencing phase of her trial, prosecutors pointed to her long criminal history. Brock’s record dates to when she was a 17-year-old and was convicted in Arizona of solicitation to commit murder. Over the years she also was convicted of credit card abuse, injury to a child, theft, assault, and drug possession. Instead of two to 20 years in prison for burglary of a habitation, she faced 25 years to life under the "three strikes and you're out" law.
She shook her head as the judge read her 70-year sentence. "A 70-year sentence will knock the air out of your stomach,” said her attorney Raul Navarez. “She kept asking me, '70 years? Are you serious? 70 years?' Because 70 years is a pretty harsh sentence for this kind of a deal. And quite frankly, that's what I argued to the jury. But the jury decided and we have to respect that."
Navarez and prosecutors agree it didn't help her case when jurors saw the video of her stealing Christmas lights. "When you're known as the Christmas Grinch, people do remember you,” Swain said.
I am unsure whether Texas law ensures that this version of the grinch will have to serve most or nearly all of these 70 years in prison, though this defendant's lengthy record of not-so-petty crimes leads me to be less than too-sympathetic concerning her fate. That said, if she is really as smart as the "real" Grinch, she probably will be able to figure out some way to catch "affluenza" while serving her time in Texas prisons and thereafter convincingly claims at a parole hearing that her heart and her conscience managed to grow three sizes one day while she was incarcerated.
National Coalition to Abolish the Death Penalty lists top capital stories from 2013
Regular reasons may recall that I am a sucker for end-of-year lists and reports, and thus I was excited to see that the National Coalition to Abolish the Death Penalty has this extended blog post setting out a view of "important stories from 2013" concerning capital punishment in the United States. Here are the items on the list, and folks should click through to see the explanations provided by NCADP:
Maryland Repeals Death Penalty....
Death Penalty Support Drops....
New Report: 2% of Counties Responsible for Most Executions....
Reginald Griffin Exonerated....
Lethal Injection Drug Shortages Confound States....
Timely Justice Act Passes in Florida....
Texas Executes 500th Person....
Virginia Electrocutes Robert Gleason....
Delaware Senate Passes Repeal Bill....
U.N. Human Rights Council Passes Resolution on Behalf of Children of Death Row Prisoners....
I would add to this list the decision of the Supreme Court to finally take up the issue of permissible state procedures for implementing its Atkins Eighth Amendment ruling. But, since we will not get oral argument or a decision in this SCOTUS case until next year, I suppose this is more properly considered a 2014 story.
December 16, 2013
"Vermont's Chief Justice Is Speaking Out Against the Drug War: Is Anyone Listening?"
The title of this post is the headline of this lengthy and notable article I just came across from a Vermont independent paper, Seven Days. Here are excerpts:
In recent weeks, Vermont Chief Justice Paul Reiber has gone public with an unusually assertive critique of the war on drugs and the “tough on crime” approach that has defined criminal justice for decades.
Reiber, who holds an office in which occupants usually avoid saying anything remotely controversial, has stopped short of recommending policy or criticizing any individuals or government bodies. But in a pair of speeches and a brief interview with Seven Days, he has declared ineffective the current reliance on police and punishment, and touted the merits of treatment-based models for dealing with crime rooted in substance abuse.
“Even with our best efforts, we are losing ground,” Reiber told a crowd at Vermont Law School last month. “The classic approach of ‘tough on crime’ is not working in this area of drug policy. The public responds very well to this ‘tough on crime’ message, but that does not mean it’s effective in changing individual behavior. If the idea is law enforcement alone will slow and eventually eliminate drug use altogether, that isn’t going to happen … The criminal justice system can’t solve the drug problem.”
Experts note that Reiber’s stance isn’t exactly revolutionary, as judges across the country have become more comfortable in recent years speaking publicly about issues affecting the court system. But, backers say, his entrance into the politically fraught debate about drug policy lends a powerful voice to their cause....
Statistics from the Vermont judiciary show the root of Reiber’s concern. Felony filings have jumped nine percent in the past four years, and more than half of that spike came in the form of drug cases. Abuse and neglect cases, meanwhile, are up 33 percent in the same time frame. While difficult to pinpoint, experts say many of those cases are children suffering at the hands of drug-addicted parents. (Reiber said he recently observed a day in Addison County juvenile court, where the docket has grown in recent years, and watched parents who are about to be incarcerated give up their parental rights.)
But Reiber’s two speeches covered more than just Vermont’s swollen court docket. In his Boston speech, Reiber highlighted reforms in Portugal, which in 2001 abolished criminal penalties for possession of all drugs, and replaced incarceration with drug treatment. Vermont’s chief justice called the results of that experiment “astonishing,” citing a study from the libertarian Cato Institute showing that Portugal experienced a large drop in drug use and a spike in the number of people seeking treatment.
During that speech, Reiber even said that American drug courts — in which nonviolent defendants charged with drug possession are diverted out of the court system and given a chance to turn their lives around — don’t go far enough. Only broader changes, he said, will have an impact....
When asked if he supported a Portugal-style drug legalization in Vermont, Reiber demurred. “That’s not my job. That’s for somebody else to decide,” he said. But, as he is doubtless aware, Reiber’s job title assures his comments are assigned more importance by both insiders and the public.
You be the disparity judge: very different prison sentences for (similar?) fruadsters in different courts
One reason I never fully understand nor fully appreciate very aggressive efforts to try reduce sentencing disparities is because I never fully understand nor fully appreciate whether and when very different sentences for somewhat similar crimes represents warranted or unwarranted disparities. And these two notable headlines reporting on two notable white-collar sentences imposed today in two different courtrooms have me thinking about these matters yet again:
Here, respectively, are the basics of the crimes and punishments in these two cases taken from the above-link press accounts, the first of which is a report from a state court in Ohio:
Bobby Thompson, convicted mastermind of a national veterans charity scam that bilked donors out of an estimated $100 million, was sentenced to 28 years in prison this morning by Cuyahoga County Common Pleas Judge Steven Gall. Thompson is a stolen identity used by John Donald Cody, 67, to set up the U.S. Navy Veterans Association, based in Tampa, which solicited donations in Ohio and 40 other states from 2002-2010.
Gall, who addressed Thompson as Mr. Cody, additionally levied a $6.3 million fine against Thompson, plus a $330,778 judgement to cover the cost of prosecution by the Ohio Attorney General. The judge said factors he considered in determining the sentence included the eight-year duration of Thompson's charity "charade," the amount of money swindled from donors, the efforts Thompson made to hide his identity, and Thompson's lack of remorse or acceptance of responsibility for his actions.
Citing the damage done to veterans who could have been aided by the money that Thompson's charity raised, Gall also ordered that Thompson spend each Veterans Day in solitary confinement for the duration of his prison term....
Prior to the sentencing Joseph Patituce, Thompson's attorney, had suggested a possible sentence of 14 years. After his client got twice that number, Patituce said Thompson still denies that he committed a crime and will appeal.... Patituce said Thompson's refusal to testify in the trial on his own behalf was pivotal. "If he would have testified the verdict would have been different," Patituce said.
Brad Tammaro, an assistant attorney general prosecuting the case, argued against Patituce's suggested 14-year sentence for Thompson, calling that sentence "totally inappropriate." Tammaro also said that "the evidence in the case demonstrates a complete lack of remorse" on the part of Thompson.
And now, from a federal court in Rhode Island:
A federal judge sentenced a Rhode Island lawyer to six years in prison Monday for his role in a $46 million investment fraud that preyed on terminally ill people, calling him the architect of the scheme and saying he didn't seem to recognize the harm he had caused.
Joseph Caramadre was sentenced in Providence after pleading guilty to wire fraud and conspiracy. His lawyers asked for two years in prison and two years in home confinement. Prosecutors sought 10 years. Judge William E. Smith also ordered Caramadre to perform 3,000 hours of community service to help the elderly and terminally ill. He put off the question of restitution because Caramadre's lawyer has objected to the amount.
Caramadre was a prominent lawyer and philanthropist. Prosecutors say he and former employee Raymour Radhakrishnan paid terminally ill people cash, passing it off as charity, then used their personal information to purchase bonds and annuities that would pay out when the person died.
Caramadre pleaded guilty last year but a few months later tried to withdraw his guilty plea. He testified during a hearing on that request that he had committed perjury when he pleaded guilty, prompting the judge to say at the time: "It's amazing to watch a defendant perjure himself by saying he committed perjury the first time." Smith turned down his request to withdraw his plea in May and ordered him immediately into custody.
On Monday, Caramadre stuck with his contention that the plea was a lie, telling the judge he could not say he was sorry for anything although he felt terrible if some terminally ill people felt the investment strategy was not explained to them. "I wish I could play the game," he said, referring to his lack of contrition.
Still, he said, he took responsibility for his guilty plea. Smith said Caramadre seemed to recognize that people were hurt but didn't seem to recognize that he was the one that hurt them.
To the extent I can understand these stories, it seems that many millions of dollars were lost in the fraud on veterans over many years, whereas apparently a lot less money was lost in the fraud on the terminally ill during a shorter period. Also, of course, one defendant was convicted after a lengthy (state) trial and the other was convicted after a (now regretted) federal plea.
Still, is there really any sound way for anyone to assess whether the huge disparity in these two fraud sentences imposed today, one of which is nearly five times as long as the others, are warranted or unwarranted? More broadly, does anyone think it problematic that one defendant was prosecuted in Ohio state court and thus subject to Ohio's sentencing laws that are much different than the other defendant was subject to as a result of his federal prosecution?
DOJ Inspector General stresses "growing crisis" from growth of federal prison population
Thanks to The Crime Report, I have just come across this recently released memorandum from the US Department of Justice's Inspector General detailing the IG's views on the "six challenges that ... represent the most pressing concerns for the Department." Notably, as the cover letter to the memorandum stresses, concerns about the growth of the prison population is at the very top of the IG's list:
Attached to this memorandum is the Office of the Inspector General's (OIG) 2013 list of top management and performance challenges facing the Department of Justice (Department), which we have identified based on our oversight work, research, and judgment. We have prepared similar lists since 1998. By statute this list is required to be included in the Department's Agency Financial Report.
This year’s list identifies six challenges that we believe represent the most pressing concerns for the Department. They are Addressing the Growing Crisis in the Federal Prison System; Safeguarding National Security Consistent with Civil Rights and Liberties; Protecting Taxpayer Funds from Mismanagement and Misuse; Enhancing Cybersecurity; Ensuring Effective and Efficient Law Enforcement; and Restoring Confidence in the Integrity, Fairness, and Accountability of the Department. While we do not prioritize the challenges we identify in our annual top management challenges report, we believe that one of the challenges highlighted this year, which we also identified in last year’s report, represents an increasingly critical threat to the Department’s ability to fulfill its mission. That challenge is Addressing the Growing Crisis in the Federal Prison System.
The crisis in the federal prison system is two-fold. First, the costs of the federal prison system continue to escalate, consuming an ever-larger share of the Department’s budget with no relief in sight. In the current era of flat or declining budgets, the continued growth of the prison system budget poses a threat to the Department’s other critical programs -- including those designed to protect national security, enforce criminal laws, and defend civil rights. As I have stated in testimony to Congress during the past year, the path the Department is on is unsustainable in the current budget environment. Second, federal prisons are facing a number of important safety and security issues, including, most significantly, that they have been overcrowded for years and the problem is only getting worse. Since 2006, Department officials have acknowledged the threat overcrowding poses to the safety and security of its prisons, yet the Department has not put in place a plan that can reasonably be expected to alleviate the problem.
Meeting this challenge will require a coordinated, Department-wide approach in which all relevant Department officials -- from agents, to prosecutors, to prison officials -- participate in reducing the costs and crowding in our prison system. In that respect, the challenge posed by the federal prison system is reflective of all of the challenges on our list: each is truly a challenge to be addressed by the Department as a whole, not just by individual Department components.
As a policy matter, of course, it is not too difficult to devise a set of long-advocated reforms that would effectively help with this crisis: fewer federal drug prosecutions, more use of alternatives to incarceration for low-level federal offenders, greater judicial authority to reduce more unjust crack sentences based on FSA reforms, expanded good-time credits, new earned-time credits, greater use of compassionate release mechanisms, and greater use of executive commutations. The problems is, as a political matter, few in the current Obama Administration seem eager or willing to go beyond just talking the talk about these issues.
December 15, 2013
Is a "worst-case scenario" regarding marijuana reform and regulation already emerging in Colorado and Washington?
The question in the title of this post is my reaction to what strikes me as a "Chicken Little" comment appearing in this lengthy New York Times article about marijuana reform in Colorado and Washington. The article, which started on the front page of Saturday's Times is headlined "In 2 States, Corner Cannabis Store Nears Reality." And here are excerpts that provide some background and context for my query:
Starting early next year, any adult with a craving or curiosity will be able to stroll into a strip mall or downtown shop in Colorado or Washington State and do what has long been forbidden: buy a zip-lock bag of legal marijuana.
After landmark votes made marijuana legal for recreational consumption, users in these two states will no longer need doctors’ notes or medical reasons to buy the drug. Instead, they will simply show identification to prove they are at least 21, and with the cautious blessing of state and federal officials, they will be able to buy as much as an ounce of marijuana and smoke it in their living rooms.
It is a new frontier of drug legalization, one that marks a stark turn away from the eras of “Reefer Madness,” zero tolerance and Just Say No warnings about the dangers of marijuana. But it also raises questions about whether these pioneering states will be able to regulate and contain a drug that is still outlawed across most of the country — although medical marijuana can be sold legally in 20 states and the District of Columbia. The end of the prohibition of alcohol in the 1930s, by contrast, to which some historians and legal scholars are comparing this moment, came all at once across the nation.
On this never-traveled road, the outcome on many fronts is uncertain: Supporters predict an economic boom in new business activity, cannabis tourism and reduced public expense with fewer low-level drug offenders clogging jails and courtrooms.
Elected officials, parents’ groups and police chiefs worry that drug traffickers will exploit the new markets, that more teenagers will take up marijuana, and that two places with reputations for fresh air and clean living will become known as America’s stoner states.
Other states flirting with legalization are watching closely too, not least for the expected windfall in state revenue in stiffly taxing something that has never been taxed at all. Referendum drives modeled on Colorado and Washington are already underway for next year in Arizona, California, Oregon and Alaska, and others are expected to follow in 2016. So the pressures to get it right the first time, local and state officials said, are immense. “We are floating in uncharted waters here,” said Mayor Michael B. Hancock of Denver, where 149 businesses have applied to sell or grow retail marijuana.
Consider, for example, the strangely altered new role of the police, who in Washington are required to make sure all marijuana is of the legal, state-licensed variety. That could make for more crackdowns on illegal grow-and-sale operations, not fewer, a fact highlighted when federal agents raided several dispensaries in Colorado last month, smashing glass and hauling away hundreds of plants.
Practical questions about the legal, workaday drug trade have required reams of rules and regulations to answer: Should it be specifically taxed?... Can people give it away in public parks?...
But most important, Colorado and Washington must show skeptical federal authorities that they can control this new world of regulated marijuana, and keep it from flowing to underage consumers, into other states or into the grip of drug traffickers and violent cartels. Even as the Justice Department announced in August that it would not block states from regulating marijuana, it also warned that their enforcement rules “must be tough in practice, not just on paper.”
“We’re already seeing a worst-case scenario emerging,” said Kevin A. Sabet, an opponent of legalization and the co-founder of Project SAM, Smart Approaches to Marijuana. He said marijuana was already flowing from dispensaries into the hands of teenage users, and he predicted the social costs would only mount in the months ahead.
Though I genuinely hope that marijuana reform is successful in Colorado and Washington because it would provide more evidence that freedom and free markets tend to be superior public policy choices to big government, I am genuinely eager to see sensible and sober assessments of the on-the-ground pros and cons of what these two states are trying. But if anti-reform (or, for that matter, pro-reform) advocates are going to persistently scream that the sky is falling (or that all is nirvana), it is going to end up being very hard to come to a truly sound assessment of whether and how reform can be more or less successful.