March 2, 2013
Congress not done asking hard questions about federal prosecution of Aaron SwartzAs reported in this lengthy Boston Globe article, headlined "Inquiry widens into Swartz prosecution," some members of Congress are not yet satisfied with the Justice Department's account of its prosecution of Aaron Swartz. Here is how the Globe article begins:
A congressional committee is broadening its investigation of the Boston-based prosecution of political activist Aaron Swartz, whose January suicide prompted questions about whether the Justice Department went too far in enforcing a 27-year-old law regulating computer use.
Darrell Issa, chairman of the House Committee on Oversight and Government Reform, said in an interview that he plans to expand his inquiry into how the office of US Attorney Carmen Ortiz of Massachusetts handled the case.
“Are we using excess prosecution, excess claims in order to force guilty pleas?” the California Republican asked. “Or are we trying to genuinely offer punishment fitting the crime? In the case of Aaron Swartz, it’s very clear that they were trying to send a message to people other than Aaron Swartz with what they were willing to offer him and what he was charged with.”
Issa said his committee is seeking information from the Massachusetts Institute of Technology, where Swartz hacked computers, and JSTOR, the scholar database whose files he downloaded. Issa’s staff was recently briefed by the Justice Department on the rationale for the prosecution of Swartz, but Issa said the committee was left with many questions that he hopes will be answered in an expanded inquiry.
Whatever happens in the investigation, the case has simultaneously pushed Congress to review whether to update the law under which Swartz was prosecuted. That has prompted a debate with potentially far-reaching consequences, as lawmakers ponder whether to revise a law enacted in 1986 — when the Internet as it is known today barely existed — without creating an opening for illegal hacking.
Obama grants 17 pardons ... could this signal a new (second term) approach to clemency?As reported in this Washington Post article, headlined "Obama grants pardons to 17 people for nonviolent offenses," President Obama late yesterday rediscovered his clemency powers. Here are the basics:
President Obama pardoned 17 people for nonviolent offenses Friday, a rare move that nearly doubled the number of pardons he has granted since taking office just over four years ago. The individuals came from 13 states and were sentenced years if not decades ago for such minor federal offenses as falsely altering a U.S. money order, possessing an unregistered firearm, embezzling bank funds and acquiring food stamps without authorization....
The pardons, the first of Obama’s second term, are significant because this president so infrequently grants clemency.
Before Friday, Obama had granted 22 pardons; he had received petitions from 1,333 individuals, according to the data maintained by the Department of Justice’s Office of the Pardon Attorney. He granted his first batch of pardons, totaling nine, in December 2010, and granted eight in May 2011 and five in November 2011.
By contrast, former president George W. Bush received 2,498 petitions and granted 189 pardons, while former president Bill Clinton received 2,001 petitions and granted 396 pardons, according to the data.
Dafna Linzer of ProPublica, a nonprofit investigative news organization, reported last year that Obama has granted clemency at a lower rate than any modern president. Among the hundreds of people who have been denied pardons by Obama, Linzer reported, are a former brothel manager who helped the FBI bust a national prostitution ring and a retired sheriff who inadvertently helped a money launderer buy land.
Obama has come under criticism for not using more frequently his constitutional powers to pardon people for federal crimes. Some academics argue that the president could have more impact by pardoning younger people with more recent crimes.
“He’s not only being extremely stingy, but he’s giving pardons to people who arguably need them the very least,” said P.S. Ruckman Jr., a political scientist at Rock Valley College in Illinois who blogs about presidential pardons. “The people who need pardons are people in their 30s and 40s and 50s who are trying to get jobs and raise families.”
Jeffrey Crouch, a political science professor at American University, said the pardons announced Friday mirror those Obama granted in his first term. “The president’s pattern has been pretty much to go for the safe route — look for older offenses, nonviolent offenses — and using the pardon power in some cases just enough to not be criticized for not using it at all,” said Crouch, author of “The Presidential Pardon Power.”
The White House on Friday offered no information about why Obama selected these 17 individuals for pardons other than that he believes they will lead productive lives. “As he has in past years, the president granted these individuals clemency because they have demonstrated genuine remorse and a strong commitment to being law-abiding, productive citizens and active members of their communities,” White House spokesman Matt Lehrich said.
Of course, the Pardon Power the place to go for all the pardon news and analysis via P.S. Ruckman, and this new post provides some more context for these latest grants:
Today, President Obama granted 17 pardons, the largest batch of pardons granted in his presidency. This brings his pardon total to 39 (22 in the first term and 17 in the second). He has also granted a single commutation of sentence (first term). According to the Office of the Pardon Attorney, Obama has received at least 8,000 clemency applications to date.
Recall, President Obama waited a whopping 682 days before granting the first pardon of his first term -- the longest delay for any president in American history, save George W. Bush. For Obama's second term, the wait has been a mere 39 days!
Regular readers know I have been very critical of President Obama for his failure to make any significant use of his clemency powers. Consequently, I am pleased to see any Presidential action on this front. But, as the title of this post suggests, what really matters is whether these initial pardons might be a sign of a lot more clemency action to come in months and years ahead.
Some recent and a few older posts concerning federal clemency practices:
- Will Prez Obama's clemency record ever match his inaugural rhetoric?
- "Why Has Obama Pardoned So Few Prisoners?"
- "Barack the Unmerciful: Obama's amazingly stingy clemency record"
- New York Times editorial assails Prez Obama's considerable clemency failings
- "Obama Has Granted Clemency More Rarely Than Any Modern President"
- Updated numbers on President Obama's disgraceful clemency record
- Noting President Obama's (still) stingy clemency record
- ProPublica reveals more ugliness in federal clemency process
- "Obama's Mercy Dearth"
- Los Angeles Times calls out our "no-pardon president"
- "A no-pardon Justice Department"
- Effective USA Today coverage of President Obama's clemency stinginess
- "Obama should exercise the pardon power"
- NYTimes op-ed assailing Obama's pathetic pardon practices
March 1, 2013
"Chinese TV Special on Executions Stirs Debate"The title of this post is the headline of this notable new New York Times article, which gets started this way:
During a two-hour television broadcast that was part morality play, part propaganda tour de force, the Chinese government on Friday sent four foreign drug traffickers to their deaths after convicting them of killing 13 Chinese sailors two years ago as they sailed down the Mekong River through Myanmar.
Although the live program ended shortly before the men were executed by lethal injection, it became an instantly polarizing sensation, with viewers divided on whether the broadcast was a crass exercise in blood lust or a long-awaited catharsis for a nation outraged by the killings in October 2011. Some critics said the program recalled an era not long ago when condemned prisoners were paraded through the streets before being shot in the head.
“Rather than showcasing rule of law, the program displayed state control over human life in a manner designed to attract gawkers,” Han Youyi, a criminal law professor, wrote via microblog. “State-administered violence is no loftier than criminal violence.” One prominent rights lawyer, Liu Xiaoyuan, insisted that the show, by the national broadcaster CCTV, violated Chinese criminal code by making a spectacle of the condemned. “I found it shocking,” he said in an interview.
The program largely focused on Naw Kham, the Burmese ringleader of a drug gang who was accused of orchestrating the brutal execution of the sailors and then making the crime appear drug related. In a nation where millions work overseas, sometimes in dangerous corners of the world, the killings were especially unsettling. Last April, six men, including Mr. Naw Kham, were apprehended in Laos by a team of investigators that included officers from China, Thailand, Laos and Myanmar.
Mr. Naw Kham and his accomplices were convicted last November during a two-day trial in China’s southwest Yunnan Province. The condemned men, including a Laotian, a Thai and a third of “unknown nationality,” reportedly confessed to the crime.
The two other men who escaped execution received long prison terms. Last month a Chinese public security official told a newspaper that Beijing had considered using a drone strike to kill Mr. Naw Kham but later decided to capture him alive. Given the considerable viewership on Friday, that decision proved to be a public relations coup.
The program included interviews with triumphant police officers, images of the condemned men in shackles and the sort of blustery talking heads that would be familiar to American cable television audiences. The graphic elements that flashed behind the CCTV news anchor featured the tagline “Killing the Kingpin.”...
In a commentary posted on Sina Weibo, the Chinese equivalent of Twitter, CCTV defended the program, saying it demonstrated China’s commitment to justice. “There were no glimpses of the execution. We only saw the drug ringleaders’ weaknesses and fear of death,” it said. “In contrast to brutal murder by his gang, the methodical court trial and humane injections have shown the dignity and civilizing effects of rule of law.”
Shortly before the men were led from their cells to the van that would take them to the death chamber, a reporter asked Mr. Naw Kham to talk about his family and then taunted him by showing him photos of the victims’ relatives. “I want to raise my children and have them educated,” Mr. Naw Kham said with a faint smile on his face. “I don’t want to die.”
I think one could have lots distinct reactions to this notable effort to make more public and prominent the administration of capital justice in China. But, especially in light of on-going US controversies concerning drone warfare, I find especially interesting the report that this programming was only made possible because China decided not using a drone strike to kill Mr. Naw Kham while he was in another country. I wonder if folks who are most troubled by the US use of drone strikes will be quick to praise China for employing a notable different (and much more public and transparent) means to achieve a form of international justice.
Proof of bad people or bad punishments or bad programming?The quirky question in the title of this post is prompted by this notable local article from Pennsylvania, which is headlined "6 in 10 will re-offend: State prison study sets baseline for progress." Here are the details:
Secretary of Corrections John Wetzel on Thursday morning released what he's calling a "landmark study" into recidivism rates at Pennsylvania's state prisons, and the study is noted not for the progress shown, but rather for the lack of change demonstrated.
For more than a decade, a consistent six in ten people released from Pennsylvania state prisons were either re-arrested or put back in prison within three years. What's "landmark" about the study is in part its scope -- more than 12 years -- but largely the fact is sets a "baseline" for going forward.
Wetzel said it marks the first step toward measuring progress. "Citizens of the Commonwealth should have every expectation of a corrections system that actually helps people correct themselves; one that is based on research, not on anecdotal stories and innuendo," said Wetzel.
While population and cost "remain essential measurements" in Gov. Tom Corbett's Corrections Reform initiative, he said, "The 'new normal' is to expect and require quantifiable results."
The study, which Wetzel called "the keystone of the Corbett Corrections Reform initiative," also helps the Department of Corrections and the Board of Probation and Parole understand who is most likely to re-offend and how. “To get a true picture of whether our state prison system is meeting its goal of reducing future crime, we need to look at more than just the reincarceration of an individual,” Wetzel said. “We need to look at re-arrests as well to see the whole picture of how and when individuals come into contact again with the criminal justice system.”
For example, the study found that more than half of those who will return to prison within three years after release will do so within the first years, which is by far the most risky period for recidivism. Younger offenders are more likely to recidivate than older offenders. Individuals most likely to reoffend appear to be property offenders. Individuals least likely to reoffend are those incarcerated for driving under the influence of intoxicants, rape and arson.
The study looked prisoners' background as well and found a released inmate who has 10 or more prior arrests is greater than 6 times more likely to recidivate than a released inmate with no prior arrest history other than the arrest for the current stay in prison.
According to the study, nearly two-thirds of all reincarcerations within three years of release from prison are for technical parole violations. Nearly three-fourths of rearrests within three years of release from prison are for less serious offenses.
The study also confirmed the damning portrait of Community Corrections Centers outlined in an earlier study performed by Dr. Edward Latessa of the University of Cincinnati. From 2005 through 2011, inmates paroled to a Community Corrections Center were actually more likely to be back in prison within a year as inmates paroled directly home.
Wetzel said the Department of Corrections can save taxpayers $44.7 million annually by reducing the one-year reincarceration rate by 10 percentage points.
The full 45-page report referenced in this article is available at this link, and the cool infographic that explains the reports key findings comes from the PA Department of Corrections website. One key finding reflected in the infographic is that less than one in five new arrests are for an act of violence. The majority of rearrests are for drug or public order offenses or parole violations.
Obviously, lots of different conclusions and responses can be based in this new recidivism data. But I think most important is to stay ever open-minded about what can be the most effective and efficient kinds of criminal justices responses. This report apparently reveals that for some offenders in some cases recidivism may be lower in the absence of a certain kind of punishment or programming. It is, of course, bad enough when the work of a department of corrections fails to actual help "correct" people. But the ultimate form of government waste exists when there is evidence that the taxpayer funded work of the criminal justice system may be making people worse criminals.
March 1, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Procedural rules now blocking efforts to undo convictions of federal defendants who are legally innocentAs reported in this new USA Today piece, headlined "Federal judge refuses to release innocent prisoners," a number of procedural issues are getting in the way of undoing federal convictions of defendants that the US Justice Department now recognizes are legally innocent. Here are the details:
Even the federal prosecutors who put Gordon Lee Miller in prison couldn't get him out. U.S. Justice Department lawyers took the unusual step in December of asking a federal judge to throw out Miller's conviction and free him because, they said, he had not actually broken the law.
But the judge's answer was still more unusual: No.
The judge's ruling against Miller is among the latest in a handful of court decisions blocking — at least temporarily — efforts by defense lawyers and prosecutors to overturn convictions in hundreds of cases in which the Justice Department agrees that people were sent to prison improperly because of a misunderstanding of federal law. The decisions raise for the first time the prospect that scores of prisoners still waiting for courts to decide their cases might remain locked up.
"It's very frustrating," said Chris Brook, legal director of the ACLU of North Carolina, which has been tracking the cases. "These are cases where everybody is on the same page. The government and the defense agree. The only one standing in the way is the judge." Miller finished his prison sentence while the case was being decided, but still must serve three years on supervised release.
The legal dispute stems from a misunderstanding about which North Carolina state convictions were serious enough to make having a gun a federal crime. A USA TODAY investigation last year identified 60 people who had been sent to prison on gun charges even though an appeals court later determined that it was not illegal for them to have a gun. The Justice Department had initially asked courts to keep the prisoners locked up anyway, but dropped that position last year "in the interests of justice," and is now asking courts to let them out.
In response, judges have so far freed 34 people and taken at least 16 others off supervised release, court records show. A Justice Department review last year identified 175 others in the smallest of the state's three judicial districts who are entitled to be released or have their prison sentences reduced.
But this month, U.S. District Judge Robert Conrad in Charlotte turned down petitions by Miller and another man seeking to have their convictions overturned, even though prosecutors said in court filings that they were "convicted for conduct that we now understand is not criminal." Another judge, Martin Reidinger, has expressed skepticism that he can free five other men, and has asked prosecutors and defense lawyers to prepare additional filings before he makes his decision.
A Justice Department spokeswoman, Allison Price, declined to comment on the specifics of those cases, saying only that "the court is empowered with great discretion and we respect the court's decision." The department has until next week to tell Reidinger whether it still believes the men can be freed.
Miller was sent to federal prison under a law that bars people from owning guns if they have already been convicted of a crime that could have put them in prison for more than a year. But Miller's prior North Carolina convictions could have put him in jail for no more than eight months. Conrad — the former chief federal prosecutor in Charlotte — said in a Feb. 15 order that he could not upend Miller's conviction. Miller, he wrote, was "lawfully sentenced under then-existing law," and an appeals court's 2011 decision that changed that understanding of the law did not apply to cases that were already concluded.
Miller's lawyers, who declined to comment, have appealed Conrad's order. If an appeals court upholds the decision, it could effectively block other judges from overturning convictions in similar cases that are still pending in federal courts throughout North Carolina.
Related prior posts:
- "Scores in N.C. are legally 'innocent,' yet still imprisoned" due to federal gun laws
- Wrongful federal gun convictions finally getting undone in North Carolina
- More wrongful federal gun convictions and sentences being remedied in North Carolina
- Still more stories of wrongful federal gun convictions and sentences from North Carolina
February 28, 2013
"The right way to regulate pot"The title of this post is the headline of this notable new Los Angeles Times editorial. Here is how it starts and ends:
Political movements like the tea party may come and go, but the pot party seems to get stronger with every national election, putting the federal government in an increasingly untenable position.
To date, more than one-third of the states and the District of Columbia have legalized marijuana, at least for medical purposes, and, according to Americans for Safe Access, eight other states are considering bills to do the same. As a result, we're getting close to the point where half the country will have legalized a drug designated a Schedule 1 controlled substance by the federal government, meaning it has no known medical uses and is as dangerous as heroin. This has been an overly restrictive classification since it was imposed in 1970, yet what's remarkable about the anti-prohibition movement is that it still hasn't prompted the government to reconsider its stance. A bill in Congress would do just that, but it also points out that there's a right way and a wrong way to proceed....
Regulatory failures have made it all too easy for recreational pot smokers to get their hands on the drug, even though that's not what California voters intended when they legalized medical marijuana in 1996. What we'd like to see is federal legislation that would treat marijuana like an ordinary prescription drug, complete with FDA oversight. Anything less would probably just add to the confusion and abuse.
You be the prosecutor: what state sentence should be sought for Joan Orie Melvin and her sister?
Regular readers know that, often on the eve of a high-profile or unique sentencing proceeding, I urge folks to imagine being the judge and to propose a just and effective sentence for the defendant. (See, e.g., prior "you be the judge" posts involving a rouge federal judge, a Ponzi schemer, the "Spam King", and an NBA star.) Earlier this month, however, I generated a notable sentencing debate by changing the script via this post in which I encouraged folks to imagine being a federal prosecutor tasked with recommending a federal sentence for Jesse Jackson Jr. and his wife after it was clear that they intend to plead guilty to political corruption charges stemming from their misuse of campaign finance monies. (See "You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?".)
As the title of this post reveals, I think it valuable to encourage readers again to think as a prosecutor about sentencing recommendations for political corruption. But, as explained via this local story, "Judge sets May 7 sentencing for Joan Orie Melvin," the high-profile upcoming sentencing I have in mind is in state court and concerns a prominent state jurist and her sister after a trial conviction on multiple charges:
Allegheny County Judge Lester Nauhaus has scheduled suspended Supreme Court Justice Joan Orie Melvin's sentencing for May 7, the judge's staff said Wednesday.
A jury on Feb. 21 found Melvin, 56, of Marshall guilty on six criminal charges dealing with her misuse of state-paid employees to campaign for a seat on the high court in 2003 and 2009. The jury deadlocked on a seventh charge of official oppression.
The jury also convicted her sister and former staffer, Janine Orie, 58, of McCandless on six related charges. Information on her sentencing date wasn't available. A third sister, former state Sen. Jane Orie, 51, of McCandless is serving 2 1⁄2 years to 10 years in state prison on similar charges.
Obviously, the exact specifics of the crimes and the political positions of Jesse Jackson Jr. and Joan Orie Melvin are quite different. Nevertheless, the underlying criminal behavior is arguably similar, as is the basic background of the offenders in relevant respects (e.g., both convicted defendants came from prominent political families, had a record of electorial success, and have considerable parental responsibilities). Of course, Jackson Jr. and his wife are due to be sentenced in the federal no-parole system in which judges must impose exact sentences subject only to a 15% reduction for good prison behavior, whereas Melvin and her sister are to be sentenced in the Pennsylvania with-parole system in which judges general impose sentences in term of broad ranges. Further, the Jacksons pleaded guilty and have expressed remorse, whereas Melvin and his sister both execised their trial rights and were found guilty on nearly all charges by a jury.
Differencea aside, I am eager to hear what readers think state prosecutors ought to be recommending as a sentence for Joan Orie Melvin and her sister. Do you think they merit a longer or shorter sentence that what the Jacksons are facing? Do you think the fact that state sentencing in Pennsylvania involves possibility of parole should lead to state prosecutor to urge for a much longer sentence in the Melvin case than federal prosecutors are urging in the Jackson case? Do you disagree with my general notion that these crimes are in some ways comparable given that they were prosecuted in different jurisdictions (even though, I think, the feds could have prosecuted both cases)?
I raise these points not only because I see high-profile, white-collar sentences as provide a great setting for debating sentencing issues, but also because I think efforts to compare the sentencing treatment of seemingly similar defendants can often distract from the task of seeking to impose the most just and effective sentence for a singular defendant. Ergo my interest in reader views on both the upcoming sentencing in this high-profile state political corruption case and how it should be compared to the upcoming sentencing of the Jacksons in federal court.
Recent related posts:
- 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
February 28, 2013 in Celebrity sentencings, Purposes of Punishment and Sentencing, Race, Class, and Gender, State Sentencing Guidelines, White-collar sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack
New Sentencing Project report notes recent changing racial make-up of prison populationsAs summarized in this New York Times article, "[i]ncarceration rates for black Americans dropped sharply from 2000 to 2009, especially for women, while the rate of imprisonment for whites and Hispanics rose over the same decade, according to a report released Wednesday" by The Sentencing Project. Here is more:
The full 26-page report from The Sentencing Project is titled "The Changing Racial Dynamics of Women’s Incarceration," and it is available at this link.
The declining rates for blacks represented a significant shift in the racial makeup of the United States’ prisons and suggested that the disparities that have long characterized the prison population may be starting to diminish.
“It certainly marks a shift from what we’ve seen for several decades now,” said Marc Mauer, the executive director of the Sentencing Project, whose report was based on data from the federal Bureau of Justice Statistics, part of the Justice Department. “Normally, these things don’t change very dramatically over a one-decade period.”
The decline in incarceration rates was most striking for black women, dropping 30.7 percent over the ten-year period. In 2000, black women were imprisoned at six times the rate of white women; by 2009, they were 2.8 times more likely to be in prison. For black men, the rate of imprisonment decreased by 9.8 percent; in 2000 they were incarcerated at 7.7 times the rate of white men, a rate that fell to 6.4 times that of white men by 2009.
For white men and women, however, incarceration rates increased over the same period, rising 47.1 percent for white women and 8.5 percent for white men. By the end of the decade, Hispanic men were slightly less likely to be in prison, a drop of 2.2 percent, but Hispanic women were imprisoned more frequently, an increase of 23.3 percent.
Over all, blacks currently make up about 38 percent of inmates in state and federal prisons; whites account for about 34 percent. More than 100,000 women are currently incarcerated in state or federal prisons. The overall rate of incarceration varies widely from state to state, as does the ratio of blacks to whites and Hispanics.
But the trend is clear, Mr. Mauer said, adding that no single factor could explain the shifting figures but that changes in drug laws and sentencing for drug offenses probably played a large role. Other possible contributors included decreasing arrest rates for blacks, the rising number of whites and Hispanics serving mandatory sentences for methamphetamine abuse, and socioeconomic shifts that have disproportionately affected white women.
Alfred Blumstein, an expert on the criminal justice system at Carnegie Mellon University, said his own findings from research he conducted with Allen J. Beck of the Bureau of Justice Statistics also indicated that the rate of incarceration for blacks was declining compared with that for whites. “A major contributor has been the intensity of incarceration for drug offending,” Dr. Blumstein said, “and that reached a peak with the very long sentences we gave out for crack offenders, stimulated in large part by the violence that was going on in the crack markets.”
But crack cocaine has become far less of an issue in recent years, he noted, a fact reflected in revisions of federal sentencing laws. And inmates serving time for crack offenses are now emerging from prison, “so there would be a disproportionate black exodus from prison that as a result would be reflected in a lowering of the incarceration-rate ratio,” he said.
Mr. Mauer said that especially for black women, the drop in incarceration compared with whites was “all about drug offenses.” In New York State, for example, where the overall prison population has dropped substantially, for women “virtually the entire decline was a decline in drug offenses,” he said. Increasingly severe drug laws and stiff sentences for drug offenses resulted in disproportionate numbers of black women going to prison, he said, “and now they are disproportionately benefiting from reductions in that area.”
February 27, 2013
Doesn't the new USSC report necessarily rebut any appellate "presumption of reasonableness" for within-guideline child porn sentences?Regular readers know that I have never been a fan of the so-called "presumption of reasonableness" for within-guideline sentences adopted by some circuit courts after Booker . This is because, despite its repeated reference and application in the circuits which have adopted it, there has yet to be any appellate rulings which explores — or, for that matter, even expressly discusses — when and how this “presumption” can be rebutted on appeal of a within-guideline sentence and what might be the legal consequences of any such (phantom) rebuttal. In actuality, this purported "presumption" is really just the means some circuits use to declare that any and every within-guideline sentence is functionally immune from substantive reasonableness review: notably, in the eight+ years since Booker, not a single within-guideline sentence has ever been found substantively unreasonable in the circuits that have embraced this so-called “presumption.”
That I said, I remain ever hopeful that those circuits which embrace the so-called "presumption of reasonableness" for within-guideline sentences will try to give some sensible and functional meaning to this appellate review standard. And, as the question in the title of this post suggest, I think the US Sentencing Commission's new report on federal child pornography sentencing (basics here), provides a unique opportunity to give the review standard some real meaning. I come to this conclusion after seeing this key passage (from p. xviii) in the executive summary of the new report:
The current sentencing scheme in §2G2.2 places a disproportionate emphasis on outdated measures of culpability regarding offenders’ collecting behavior and insufficient emphases on offenders’ community involvement and sexual dangerousness. As a result, penalty ranges are too severe for some offenders and too lenient for other offenders. The guideline thus should be revised to more fully account for these three factors and thereby provide for more proportionate punishments.
In short, the US Sentencing Commission is saying that the current federal guidelines for child pornography are broken because they give too much significance to some offense factors and too little to others, and thus guideline-calculated ranges for child porn offenses are "too severe for some offenders and too lenient for other offenders." Put even more directly, the USSC is here declaring that the existing child porn guidelines are not a reasonable means to ensure just, effective and proportionate punishment.
This basic reality in turn prompts my query, which is designed to promote circuits which generally apply the "presumption of reasonableness" for within-guideline sentences to now recognize (and expressly hold) that this appellate presumption does not apply in any case involving the child porn guidelines. In saying this, I am not asserting that this new USSC report necessarily connoted that any and all within-guideline child porn sentence must be declared (or even presumed) substantively reasonable. But I am asserting that, because the USSC has now clearly declared that the existing guidelines now set forth "penalty ranges [that] are too severe for some offenders and too lenient for other offenders," it would be both unjust and obtuse for a circuit court to now presume any within-guideline child porn sentence is substantively reasonable.
Recent related post:
February 27, 2013 in Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentencing around the world, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack
"Marijuana poll: Californians' support for legalizing pot at record level"The title of this post is the headline of this notable new local report on a notable new poll in California. Here are highlights (with a few details emphasized):
This poll is significant for any number of reasons, especially with word coming from AG Eric Holder that the US Justice Department would issue "soon: some guidance on how it plans to treat states that have legalize marijuana (details here). The fact that a heavy majority of voters in California do not like the "tough love" approach taken by the Obama Administration to date before will help that Administration consider alternatives.
Californians support legalizing pot in greater numbers than ever -- and they want the federal government to cool it with the crackdowns on medical marijuana dispensaries.
In a Field Poll released Wednesday, California voters, by a margin of 54 percent to 43 percent, supported allowing legal sales of marijuana, as long as restrictions are in place on age, driving under the influence of the drug and licensing those who sell it. That represents the highest level of support since the Field Poll began asking the question 44 years ago, when most California believed pot was the gateway drug to more hurtful substances.
Only 13 percent of California adults supported legalizing marijuana in 1969 -- the year of Woodstock. "Now, we're getting to the point where baby boomers have lived with this stuff for most of their lives," said Mark DiCamillo, director of the Field Poll.
Two-thirds of 834 registered voters said they opposed the Obama administration's raids on medical marijuana outlets, in which nearly 200 dispensaries -- most in California -- were targeted in President Barack Obama's first term. Local governments have taken cues from the administration: Two hundred cities and counties have banned medical marijuana dispensaries. The state Supreme Court is poised to issue a ruling on whether local governments can shut down dispensaries.
Nearly three-fourths -- 72 percent -- of Californians back the state's existing medical marijuana law, approved by voters in 1996. And a strong majority -- 58 percent -- would support allowing medical marijuana dispensaries in their own community. "Certainly, it's a rebuke of the Obama administration's tactics," said Kris Hermes, a spokesman for Oakland-based Americans for Safe Access, a medical marijuana advocacy group. "It should indicate that the Justice Department's tactics are unacceptable and should be reconsidered."
Obama once criticized President George W. Bush for his aggressive approach to shutting down medical marijuana dispensaries. But Obama is on pace to exceed Bush's record of medical marijuana busts.
Though voters support medical marijuana, just over two years ago they rejected a ballot measure to legalize pot, Proposition 19, by a 53 to 47 percent margin. Legalization had only narrow support -- 50 to 46 percent -- in a Field Poll four months before that election, and the measure's chances for success were derailed by what political analysts called a lackluster campaign and a vague regulatory plan. Well-run campaigns and more detailed regulatory plans led to pot legalization last November in Colorado and Washington state.
A coalition of Proposition 19 supporters met in December to discuss potential future California ballot measures. They've said that they're targeting the 2016 presidential election ballot, though they haven't ruled out putting it on the ballot in 2014.
A younger and more tolerant electorate is changing the political landscape. Among voters between the ages of 18 and 29, legalization has a 58-39 edge; among 30- to 39-year-olds, it has a 61-38 percent advantage. Voters 65 or older are the least likely to support legalization, with only 43 percent in favor and 52 percent against.
Independent voters most strongly support legalization, at 59 percent, closely followed by Democrats, at 58 percent. Only 42 percent of Republicans favor legalization. And Latinos are just as against it, with only 41 percent in favor. But Latinos between the ages of 18 and 39 support it, 53 to 47 percent. Only 30 percent of Latinos 40 and older support legalization....
The poll, taken Feb. 5 to 17, has an overall margin of error of plus or minus 3.5 percentage points.
The poll data points I have highlighted are meant to stress reasons why I think all political candidates on all sides of the aisle will soon start realize that strong support for strong federal pot prohibition efforts is now full of political risks. Younger and independent voters are critical constituencies for winning elections now and especially into the future, and there is especially good reason to believe that views on pot policy will be quite salient and important to these constituencies in coming elections. As I have said in prior posts, any and all Republicans concerned about their "national brand" might be very wise to start talking up (as Paul Ryan did in the last election cycle) the idea of leaving pot policies up to the states and getting the feds out of the pot prohibition business.
Sixth Circuit weighs in with instructions on restitution sentencing in child porn casesA helpful reader alerted me to a notable ruling by a Sixth Circuit panel today in US v. Gamble, No. 11-5394 (6th Cir. Feb 27, 2013) (available here). Here is how the majority opinion gets started:
Judge Kethledge adds a brief and very interesting sepearate opinion which starts and ends this way:
In unrelated child pornography convictions, both James Gamble and Shawn Crawford were ordered by their respective district courts to pay over $1,000,000 in restitution to “Vicky,” the pseudonym of one of the individuals depicted in the images they possessed or received. Restitution was ordered jointly and severally under 18 U.S.C. § 2259, which makes restitution mandatory for “the full amount of the victim’s losses” in child exploitation cases. Because the district courts did not require a showing of proximate cause between the losses and the defendants’ offenses, and this circuit’s case law requires such a showing, the cases must be remanded so that this analysis can take place. On remand, moreover, the district court must reconsider the extent to which the defendants must pay restitution where they share responsibility for Vicky’s injuries with hundreds of other child pornography viewers. Finally, while Gamble additionally appeals his within-Guidelines prison sentence, it is substantively reasonable.
I join all but part II.B of the Court’s thought ful opinion. I do not join that part because I would direct the district court to make a more flexible and open-ended determination of each defendant’s share of responsibility for Vicky’s losses....
In determining the amount of a restitution award under § 2259, the courts can only do their best. It seems to me that a more flexible inquiry, focused on moral fault, and using all the evidentiary tools at the c ourt’s disposal, is the way to accomplish that end.
As I have stressed before, it is only a matter of time before the Supreme Court has to take up these issues, and this Sixth Circuit opinion provides the Justices with additional thoughtful reading for when they do.
February 27, 2013 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (1) | TrackBack
US Sentencing Commission releases big new report on federal child porn sentencingAs reported in this official press release, this morning "the United States Sentencing Commission submitted to Congress its comprehensive report examining federal sentencing policy in child pornography cases." Here is more from the press release, which serves as a partial summary of the 468-page(!) report (which is available in full here):
All the pieces of this important new report are available via this link. The press release summary alone suggests there is considerable food for sentencing thought in this important new USSC report, and I am going to start my view by reading closely the 26-page executive summary available here.
Although still only a small percentage of the overall federal caseload, child pornography prosecutions have grown significantly during the past decade and now account for nearly 2,000 federal cases each year. That growth reflects the increasing role of the Internet in child pornography offenses. Before the Internet, law enforcement officers had significantly curtailed the child pornography market in the United States.
Significant technological changes in offenders’ conduct have occurred since the federal penal statutes and sentencing guidelines for child pornography offenses were last amended comprehensively a decade ago. Child pornography offenders today typically use Internet technologies such as peer-to-peer file-sharing programs that enable offenders to distribute, receive, and collect child pornography images more easily and in greater quantities than when the current penalty structure was established. Several penalty enhancements in the guidelines for child pornography offenses,such as use of a computer, now apply to typical offenders. As a result, prison sentences for efendants convicted of federal child pornography offenses have almost doubled in the last decade to approximately five years for possession and 11 years for receipt and distribution.
Judge Saris concluded, “Because of changes in the use of Internet-based technologies, the existing penalty structure is in need of revision. Child pornography offenders engage in a variety of behaviors reflecting different degrees of culpability and sexual dangerousness that are not currently accounted for in the guidelines.”
The Commission’s study found that approximately one in three federal child pornography offenders had a known history of engaging in illegal sexual misconduct prior to or in conjunction with their federal child pornography offenses. Such illegal behavior ranged from sexual assaults against children to “non-contact” sex offenses such as soliciting self-produced sexual images from minors in on- line communication. The Commission’s recidivism study also concluded that approximately 7 percent engaged in illegal sexual misconduct after serving their sentences for federal child pornography offenses. Both figures should be considered conservative because such offenses are underreported....
Judge Saris stated, “The Commission will continue to study child pornography sentencing practices, and looks forward to working with Congress on developing a sentencing scheme that serves to better distinguish offenders, thereby reducing unwarranted sentencing disparities in these serious crimes.”
I expect a lot more posts on this topic will following the days ahead. And in addition to digging into the substance of this report, I also will be keeping on eye on how federal officials in other branches and the media respond to what the USSC has to say.
February 27, 2013 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack
AG Holder indicates federal response to state marijuana reforms coming "soon"As reported in this piece from The Hill, "Attorney General Eric Holder promised Washington and Colorado state attorneys general on Tuesday that the Justice Department would issue its verdict 'soon' on how it plans to treat the states’ recent moves to legalize marijuana." Here is more from the report:
“We’re still in the process of reviewing both of the initiatives that were passed,” said Holder, speaking at the National Association of Attorney General annual conference in Washington, D.C.
“You will hear soon. We’re in the last stages of that review and we’re trying to make a determination as to what the policy ramifications are going to be, what our international obligations are — there are a whole variety of things that go into this determination — but the people of [Colorado] and Washington deserve an answer and you will have one soon.”
Holder was responding to Colorado state attorney general John Suthers, who asked the nation’s top law enforcement official when the DOJ would be weighing in on the state laws that have been in effect for nearly two months. The DOJ is charged with enforcing the federal prohibition on marijuana, and the state laws run counter to the long-existing ban, creating a debate over which law should be enforced and which law is most responsive to the will of the people.
Marijuana has been a centerpiece of the federal government’s “war on drugs,” aimed at cracking down on drug use in the United States. But the growing number of people who support the decriminalization of pot — which is still legally classified nationally in the same category as heroin — has some policymakers in Washington, D.C., rethinking their approach.
On Monday, nearly a dozen House Democrats introduced several bills that would decriminalize marijuana and remove the drug from the list of controlled substances, while requiring the federal government to regulate it and impose penalties on tax-evaders.
"Sequestration Will Wreak Chaos On U.S. Federal Prisons"The title of this post is the headline of this very interesting new piece from Business Insider. Here are excerpts:
Sequestration will hit each and every aspect of the U.S. government, but for the Bureau of Prisons, the impact could be horrifying. According to the Attorney General's office, the federal Bureau of Prisons (BOP) will have to handle a rising number of inmates with a major budget reduction, a cut of $338 million.
And while other agencies can find ways to do more with less — for example, by reducing procurement, enacting hiring freezes or cutting services — BOP has to maintain constant security at federal prisons around the country with even less money. The solutions will not be pretty.
In an email to Business Insider, a spokesperson from the Department of Justice said that they are "acutely concerned about staff and inmate safety should sequestration occur." The Department indicated that it may at times maintain a minimum level of staff for security purposes, and that lock-downs may be required.
The Bureau oversees 188 facilities and contracts 16 facilities out to private prison companies. Currently, there is a grand total of 217,249 inmates in the federal prison system, a number BOP expects to rise to 229,300 by the end of 2013. In 2012, the BOP had a budget of $6.6 billion, with 41,310 employees. Correctional officers make up around half of the staff, with 19,756 employees in 2012.
According to DOJ, the sequester budget cuts will result in 5 percent reduction in the Bureau's workforce, which will be achieved by freezing future hiring and furloughing 36,700 staff for an average of 12 days. This means that almost every employee will have to go home without pay for some time, leaving BOP to function at unnecessarily low security levels.
Attorney General Eric Holder indicated that this reduction in force would endanger the lives of staff and inmates. According to the Attorney General, the BOP will have to implement full or partial lock downs across the board. In a letter to Senate Appropriations Chair Barbara Mikulski (D-Md.), Holder said "This would leave inmates idle, increasing the likelihood of inmate misconduct, violence, and other risks to correctional workers and inmates."
Complicating all of this is the fact that the federal prison system is already severely overcapacity. According to the 2012 Justice Department annual report, the system is 38 percent overcapacity, a problem that the Department has identified as a major weakness. But efforts to find a solution will be thwarted by the sequester.
In 2013, the BOP was slated to activate 5 new prisons throughout the system, alleviating the crunch with 8,100 new beds. In addition to cuts in guards, those projects will have to be delayed, exacerbating the overcrowding problem further. On top of these issues, Holder reported that the BOP will be forced to curtail or cancel some of the crucial rehabilitation programs that bring long term savings to the criminal justice system....
Jesselyn McCurdy, an attorney at the American Civil Liberties Union who specializes in civil liberties in the criminal justice system, is very concerned about the impact that the cuts will have on inmates. "Sequestration could result in disaster for people in federal prisons who already live in dangerously overcrowded conditions," McCurdy said.
The private prison industry, which is largely dependent on federal contracts, is also worried about the cuts. Damon Hininger, CEO of Corrections Corporation of America, one of the largest private prison companies, voiced these concerns on a February 14 call to investors.
Through not mentioned in this article, it is interesting to consider that the passage of reduced crack guidelines which were made retroactive likely has help prevent this bad situation from being even worse. Absent the sentencing reductions from reduced crack guidelines passed in 2007 and 2010, the current federal prison population would perhaps already be creeping up near 250,000.
Recent related post:
February 26, 2013
New poll indicates most Maryland citizens do not support death penalty repeal efforts
This new article, headlined "Washington Post poll finds most Marylanders in favor of death penalty," reveals that the on-going effort by many elected Maryland representatives to repeal the state's death penalty runs contrary to current public opinion in the state. Here are the basic (which includes a link to the poll data):
A majority of Marylanders want to keep the death penalty on the books despite widespread skepticism across the state about whether capital punishment is a deterrent to murder or is applied fairly, a new Washington Post poll has found.
Sixty percent of adults in the poll say that Maryland law should allow for the death penalty, while 36 percent support replacing it with life in prison without the possibility of parole....
Gov. Martin O’Malley (D) has made repeal of the death penalty a top priority in the 90-day legislative session. Debate could begin in earnest on the issue later this week in the Senate, where a narrow majority of members are on record supporting O’Malley’s repeal bill. Prospects in the House of Delegates are also considered strong.
Some of the arguments O’Malley is making appear to resonate among Marylanders. By nearly 2 to 1, those polled say that the death penalty is not a deterrent to murder and does not lower the murder rate. And most who respond that way say they feel strongly about their view. Moreover, nearly one-third of Marylanders — including nearly a half of African Americans — say capital punishment has been applied unfairly in the state. That’s another argument O’Malley has advanced in a state where five men sit on death row but no executions have taken place since 2005.
Yet even when those arguments are stated explicitly, as well as questions that critics have raised about the morality of capital punishment, support for repeal is tepid among the public — which could ultimately decide the issue. If a repeal bill passes the General Assembly, opponents are expected to take advantage of a provision in the state Constitution that allows citizens to petition new laws to the statewide vote. If enough signatures are collected, the issue would appear on the ballot in November 2014....
There are deep divisions over the death penalty based on party affiliation, race, gender and other demographics. More than half of Democrats oppose capital punishment, while three-quarters of Republicans support it. About six in 10 men support the death penalty, while women are nearly evenly divided. Whites support capital punishment by a margin of about 2-to-1, while a majority of African Americans are opposed....
The Post poll was conducted Feb. 21-24, among a random sample of 1,156 adult residents of Maryland. The results from the full survey have a margin of error or plus or minus 3.5 percent.
Another big SCOTUS criminal justice day on tapAs reported in this prior post, yesterday proved a notable SCOTUS day for fans of intricate federal criminal procedure (though likely for few others). But today is one I had long noted on my calendar because these two cases (summaries/previews via SCOTUSblog) due to be argued should be of special interest for sentencing fans:
Issue: Whether a sentencing court violates the Ex Post Facto Clause by using the U.S. Sentencing Guidelines in effect at the time of sentencing rather than the Guidelines in effect at the time of the offense, if the newer Guidelines create a significant risk that the defendant will receive a longer sentence.
Issue: Whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged with serious crimes.
Argument preview: Crime, technology, and privacy
February 25, 2013
"Mass Incarceration at Sentencing"The title of this post is the title of this interesting looking new paper by Anne Traum now available via SSRN. Here is the abstract:
Courts can address the problem of mass incarceration at sentencing. Although some scholars suggest that the most effective response may be through policy and legislative reform, judicial consideration of mass incarceration at sentencing would provide an additional response that can largely be implemented without wholesale reform. Mass incarceration presents a difficult problem for courts because it is a systemic problem that harms people on several scales — individual, family, and community — and the power of courts to address such broad harm is limited.
This Article proposes that judges should consider mass incarceration, a systemic problem, in individual criminal cases at sentencing. Sentencing is well suited to this purpose because it is a routine phase of a criminal case when courts have great flexibility to individualize punishment based on individual and systemic factors. In this phase, judicial discretion is at its highest, the judges’ contact with defendants is most direct, and the court can consider the broadest information relevant to sentencing options and impacts.
Mass incarceration can be viewed as a systemic concern that is relevant to both the defendant’s history and the traditional sentencing purposes — including the need to benefit public safety and to ensure that sentences are fair and just. Information about mass incarceration would enhance courts’ understanding of the impacts of sentencing on the defendant and others in the local community. This Article articulates how this can be accomplished in federal sentencing and suggests doctrinal and practice changes that would enhance courts’ capacity to consider and mitigate the harms of mass incarceration in individual cases.
Another notable sign of our modern legal on-line times (and a suggestion)Via the always timely How Appealing, I came across this new Harvard Crimson piece headlined "Harvard Law Review Increases Online Presence." Here is the heart of the report:
The Harvard Law Review will more than double the number of editors focusing on online content for the publication next year in an effort to expand its web presence.
Increasing the online staff from two to five, these new editors will join the Forum Committee, which is responsible for developing the website and editing the material published online. In the next year, the Law Review hopes to enhance the functionality and design of its website in addition to increasing the quantity of published content, according to second-year Law School student Gillian S. Grossman ’10, the recently elected president who will lead 127th Volume of the organization....
The majority of returning editors voted to add two additional students to this year’s pool of rising editors in order to expand the online content while maintaining the quality of the current print operations, according to Grossman.
The Law Review will also grow the amount of material published online in an effort to increase the resources available for scholarly research. “The Law Review recognizes that legal conversations and legal scholarship are taking place online in addition to print mediums,” Grossman wrote in an email. “The Law Review’s Forum provides a platform for authors to engage with the articles we publish in our print issues and to engage with current legal developments through various forms of online scholarship.”
In line with this mission, the Law Review began publishing its print materials online in 2006. The organization also created a “Forum” section on its website where contributors can write exclusively online content. In the past, these articles have come in the form of “Responses,” approximately 2,500 word pieces written in response to articles published in the print journal. With the new push towards expanding the Law Review’s web presence, the “Forum” will also begin publishing “Reactions,” shorter pieces commenting on recent developments in the law, as well as other scholarly essays.
I am always quite pleased to see any and all efforts from the folks at Gannett House to continue to innovate with the form and function of modern legal scholarship. And, ever eager to encourage my favorite kinds of engagement "with current legal developments through various forms of online scholarship," I will make one big suggestion for the new HLR leaders: try to use the new on-line spaces to try to cover much more state "developments in the law" both legislative and judicial (and, to make me really giddy, give special attention to state criminal justice developments).
Big SCOTUS Monday for fans of intricate federal criminal procedure issues
It is always a bit of a challenge to get the legal blood flowing on a mid-winter Monday (especially if you are, like me, groggy from a late-Sunday-night family Oscar gathering in which you came in last in your pick pool). But anyone for whom complex issues of federal criminal procedure get you excited, the Supreme Court made Monday a day of near non-stop excitement. Specifically, in addition to oral arguments in two complicated habeas cases, the Justices also granted cert on two new complicated criminal procedure issues.
SCOTUSblog, of course, has all the highlights, including links in this post to the transcripts from today's oral argument in McQuiggin v. Perkins and Trevino v. Thaler. In addition, this lengthy post by Lyle Denniston provides a detailed account of the two new criminal cases on the SCOTUS docket and some other notable morning action. Here are highlights from that post:
The Supreme Court agreed on Monday to try to clarify further when the rights of an accused are violated because of faulty advice from a defense lawyer about a plea bargain, and separately took on a case testing the tactics prosecutors may use to counter a claim that the accused lacks the mental capacity to commit a crime. Both cases will be heard and decided at the Court’s next Term, starting in October....
The two newly granted cases are Burt v. Titlow (12-414) and Kansas v. Cheever (12-609). In both cases, the issues are raised by state officials, protesting lower court rulings that favored the rights of the defendants.
The Burt case involves a Troy, Michigan, woman, Vonlee Nicole Titlow, who was convicted of second-degree murder for the suffocation of her uncle, Donald Rogers, in August 2000. While she was being held in jail after she had pleaded guilty under a plea bargain, but before she was sentenced, a sheriff’s deputy told her she should not have pleaded guilty if she believed she was innocent.
Titlow got a new attorney and claimed innocence, and the lawyer told her to withdraw her guilty plea, thus nullifying the plea bargain. She was facing a sentence of seven to fifteen years on a manslaughter charge, and the attorney said that was too long. Titlow was then tried on the more serious charge of murder, and was convicted of second-degree murder. She was then sentenced to twenty to forty years in prison.
The Sixth Circuit Court ruled that her Sixth Amendment right had been violated by the attorney’s advice to withdraw the guilty plea, an action which led to her receiving the longer prison sentence for murder. That is the issue that state officials challenged in their petition to the Supreme Court. The key issue is the proof that must be offered to show that the accused would have accepted the offer if the advice from the defense lawyer had not been faulty. The case basically turns on the scope of two Supreme Court rulings last year enhancing the rights of the accused in the plea-bargaining context — Lafler v. Cooper and Missouri v. Frye.
In the Cheever case, Kansas officials raised the issue of what prosecutors may do when an accused individual puts before a jury a defense of mental incapacity to commit a crime. The state contended that prosecutors should be allowed to counter that claim by presenting the testimony of a psychiatrist who had examined the individual’s mental health, under court order....
[Some] comments by Justices Sotomayor and Breyer on a Texas prosecutor’s racial remarks in a drug conspiracy trial came as the Court denied review in Calhoun v. United States (docket 12-6142). The two Justices did not dissent from that denial, but said they were commenting “to dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutors’ racially charged remark. It should not.”
California unable to keep up with sex offender who disable GPS tracking devicesThe Los Angeles Times has this new article highlighting yet another dysfunction in California's operation of its criminal justice system. The full headline provides an effective summary of the lengthy piece: "Paroled sex offenders disarming tracking devices: Thousands of high-risk parolees are removing GPS monitors, often with little risk of serving time, because jails are too full to hold them. Some have been charged with new crimes." Here is how the article gets started:
Thousands of paroled child molesters, rapists and other high-risk sex offenders in California are removing or disarming their court-ordered GPS tracking devices — and some have been charged with new crimes including sexual battery, kidnapping and attempted manslaughter.
The offenders have discovered that they can disable the monitors, often with little risk of serving time for it, a Times investigation has found. The jails are too full to hold them. "It's a huge problem," said Fresno parole agent Matt Hill. "If the public knew, they'd be shocked."
More than 3,400 arrest warrants for GPS tamperers have been issued since October 2011, when the state began referring parole violators to county jails instead of returning them to its packed prisons. Warrants increased 28% in 2012 compared to the 12 months before the change in custody began. Nearly all of the warrants were for sex offenders, who are the vast majority of convicts with monitors, and many were for repeat violations.
The custody shift is part of Gov. Jerry Brown and the legislature's "realignment" program, to comply with court orders to reduce overcrowding in state prisons. But many counties have been under their own court orders to ease crowding in their jails. Some have freed parole violators within days, or even hours, of arrest rather than keep them in custody. Some have refused to accept them at all.
Before prison realignment took effect, sex offenders who breached parole remained behind bars, awaiting hearings that could send them back to prison for up to a year. Now, the maximum penalty is 180 days in jail, but many never serve that time. With so little deterrent, parolees "certainly are feeling more bold," said Jack Wallace, an executive at the California Sex Offender Management Board.
Rithy Mam, a convicted child stalker, was arrested three times in two months after skipping parole and was freed almost immediately each time. After his third release, his GPS alarm went off and he vanished, law enforcement records show. The next day, he turned up in a Stockton living room where a 15-year-old girl was asleep on the couch, police said. The girl told police she awoke to find the stranger staring at her and that he asked "Wanna date?" before leaving the home.
Police say Mam went back twice more that week and menaced the girl and her 13-year-old sister, getting in by giving candy to a toddler, before authorities recaptured him in a local park. He is in custody on new charges of child molestation.
Californians voted in 2006 to require that high-risk sex offenders be tracked for life with GPS monitors strapped to their bodies. The devices are programmed to record offenders' movements and are intended, at least in part, to deter them from committing crimes. The devices, attached to rubber ankle straps embedded with fiber-optic cable, transmit signals monitored by a private contractor.
They are easy to cut off, but an alarm is triggered when that happens, as it is when they are interfered with in other ways or go dead, or when an offender enters a forbidden area such as a school zone or playground. The monitoring company alerts parole agents by text message or email.
Arrest warrants for GPS tamperers are automatically published online. The Times reviewed that data as well as thousands of jail logs, court documents and criminal histories provided by confidential sources. The records show that the way authorities handle violators can vary significantly by county.
I am pleased that the LA Times is looking into how GPS tracking of sex offenders is working (or not working) in California these days. But I am disappointed that this article, which is quick to present a few ugly examples of bad criminals committing more crimes because of the failings of GPS, does not even try to explore whether overall sex offender recidivism rates are down since GPS tracking got started in California.
Whether it is the innocent person wrongly convicted or the guilty pedophile wrongly freed, it is always going to be easy for reporters to find anecdotes to document a singular failing of any part of a massive criminal justice system. It is much harder to determine — and yet ultimately much more important for making sound reforms — whether and how any particular part of a massive criminal justice system is doing more harm than good and thus needs to be drastically reformed or just tweaked.
February 25, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack
"Marijuana dealers get slammed by taxes"
The title of this post is the headline of this new piece over at CNN Money. Here is how it begins:
Thanks to a decades-old law targeting drug runners, entrepreneurs in the nascent medical marijuana industry face a unique burden: an effective federal income tax rate that can soar as high as 75%.
The hefty levy is the result of a 1982 provision to the tax code, known as 280E, that stemmed from a successful attempt by a convicted drug trafficker to claim his yacht, weapons and bribes as businesses expenses, according to 280E Reform, a group working to overturn the statute. Enacted in the wake of that PR debacle, the rule bars those selling illegal substances from deducting related expenses on their federal income taxes.
It may have been effective against cocaine dealers and smugglers of other hard drugs, but the law now means purveyors of medical marijuana in the 18 states that have legalized the drug can't can't take typical things like rent or payroll as a business expense. That's taking a heavy toll on this new field.
"I'd personally love to give my employees a raise," said Kayvan Khalatbari, co-owner of Denver Relief, a medical marijuana center in its namesake city. "But because of the industry we're in, that's not always possible." Khalatbari said Denver Relief does just over $1 million a year in sales, and that not being able to take some standard business deductions costs him tens of thousands of dollars annually. He estimates his effective federal tax rate is about 50%.
For Denver Relief -- one of the largest marijuana dispensaries in Colorado, with a full-time staff of 15 -- the burden isn't killing the business. But for others, it's been lethal. Jim Marty, an accountant in Colorado specializing in medicinal marijuana tax law, said he has one client that didn't turn a profit in 2009, 2010 or 2011. In 2012, though, she was handed a $300,000 tax bill from the IRS for those three proceeding years.
Entrepreneurs whose businesses are legal under state laws are getting hammered by outdated federal tax rules. "If you have a license from the state hanging on your wall, that doesn't fit the definition of trafficking," Marty said. "Yet the IRS is aggressively auditing this industry." He said he often sees clients facing effective tax bills of 65% to 75%. That compares to 15% to 30% for businesses in general.
I generally favor high "sin" taxes, based in part on the reality that many "sin" products result in significant taxpayer costs from collateral harms. But in the arena of new state marijuana businesses, I fear that the uniquely heavy federal tax burden might prompt some to operate in the grey or black markets rather than under a regulated state regime. Chalk this up to another important matter that the states and feds are going to need to work through as the modern marijuana laboratories of democracy continuing with their real-time experiments.
Notably, this new commentary by Christopher Matthews at Time, headlined "Will High Marijuana Taxes Encourage Black Markets?," talks through the connection between tax rates and market realities. Here is how it concludes:
For opponents of prohibition, taxes are the one of the best tools to convince citizens and governments of the benefits of a well-regulated marijuana industry. But the marijuana industry in America — in all its various stages of legality — is large and well-developed. Some even estimate it to be the single largest cash crop in the country. Given that fact, one can’t expect the black market to dissapear overnight if taxes and regulations make legal marijuana prohibitively expensive. And as legislators continue the process of setting up a tax and regulatory structure for this budding industry, it’s a reality they had better take into account.
February 24, 2013
Welcome to the blogosphere Judge Richard Kopf via "Hercules and the Umpire"
I am so very pleased and intrigued to be able to report that one of my very favorite district judges has now decided to get more actively involved in one of my very favorite activities. Specifically, U.S. District Court Judge Richard G. Kopf has started this notable new blog under the notable name "Hercules and the Umpire."
Judge Kopf's first big post is titled "The Who, the Why and the Title of this Blog," and here are excerpts which highlight why I am so excited to follow what Judge Kopf does in his new cyber-space:
About seven years ago, a bright law student asked me about blogging and that exchange became part of a blog. See Ian Best, Judge Richard Kopf (D. Nebraska): Legal Blogs Will Fill the Practicality Gap,
The student asked me whether I would consider blogging. I answered this way: “If I were to write my own blog, it would have something to do with what it means to be a federal trial judge on a day-to-day basis. I am not sure, however, that I want to reveal that much about myself.”
I am now on senior status, and with that change in status (plus advancing age) my reticence to blog has lessened. I think I have something worth writing about.
I am very interested in the role of judges and particularly the role of federal trial judges. So, that is what I will write about in this blog.
As an aside, even though I am a senior judge, I still have an active caseload. Thus, I must not comment upon pending or impending matters. I will strive hard to live up to that restriction. Fair warning: nothing I write about in this blog should be taken as a comment upon those forbidden areas.
I hope the title evokes an image of two poles.
On the north, we have the late great Ronald Dworkin’s all knowing judge, Hercules.
On the south, we have Chief Justice Roberts’ formulation of the judge as umpire.
I am interested in knowing (1) which pole is the better and (2) whether there is a longitude and latitude between those poles that locates the proper role of a federal trial judge.
"Two Moral Mistakes in the American Criminal Justice System"The title of this post is the title of this notable book chapter by Eric Blumenson now available via SSRN. Here is the abstract:
A state’s criminal justice system must serve two masters: it must protect the security of persons and property, and it must respect the liberties of the people. It is bound by both duties and must strike the morally correct balance between them. In this paper, I discuss some principles that I believe must be elements in that balance. I defend these principles as a necessary part of any effective, liberty-respecting criminal justice system; describe the extreme departure from those principles in the United States; and note some recent interest in reforms that, should they take root, could mark the beginning of an American transition towards a safer, less incarcerated and more liberty-affirming country.