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May 17, 2014

"Could This Be the Year for a House Reversal on Medical Marijuana?"

Congress and cannabisThe title of this post is the headline of this intriguing article from Roll Call.  Here are excerpts:

The last time Rep. Dana Rohrabacher offered an amendment on the House floor to protect states rights when it came to legalization of medical marijuana, it was defeated 163–262. Since that vote in 2012, four states — Illinois, Massachusetts, New Hampshire and Maryland — passed laws or regulations allowing for the use of medical marijuana, bringing the total to 21 states and the District of Columbia.

Now, supporters of medical marijuana anticipate the strongest vote yet on a states-rights amendment when the fiscal 2015 Commerce-Justice-Science appropriations measure (HR 4660) comes to the House floor in a few weeks, while lawmakers are weighing offering additional marijuana provisions on appropriations measures. Most, but not all, of the proposals lawmakers are considering bringing up are aimed at protecting state laws and programs on medical marijuana use.

The chief provision, which will be offered as an amendment to the appropriations bill funding the Commerce and Justice departments, would prohibit the federal government from prosecuting medical marijuana users and providers who are abiding by their state’s law. The House has voted on similar proposals six times since 2003, with about 150 to 160 members supporting it each time. But advocates expect that more lawmakers than ever will support the bipartisan proposal this year, which will likely be introduced by two California lawmakers, Rohrabacher, who is a Republican, and Democrat Sam Farr. Boosters expect to win new backers this year because of the increasingly high poll numbers supporting legalization....

That increasing support may lead lawmakers to hold additional marijuana policy votes on other appropriations bills. Rep. Ed Perlmutter, D-Colo., may consider offering an amendment to the Financial Services appropriations measure that would help marijuana businesses get access to banking by updating federal rules, according to his office. An aide for Colorado Democrat Jared Polis said he also may offer marijuana policy amendments, although he has not made a decision yet....

The backers of the Rohrabacher amendment are an unusual group of social liberals and conservatives who see legalization as a states’ rights issue. Lawmakers including Blumenauer, Michigan Republican Justin Amash and Texas Republican Steve Stockman have voted for it in the past.

Georgia Republican Paul Broun, a physician who supports the amendment, said in a statement that the provision makes sense “from both a medical perspective and a Constitutional perspective.” He added, “This amendment would ensure that medical marijuana patients adhering to their state’s laws would not be punished by an overreaching federal government.”

Cross-posted at Marijuana Law, Policy & Reform

May 17, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (7) | TrackBack

May 16, 2014

Lots of intriguing "show me" litigation as Missouri prepares for next execution

As reported in this Kansas City Star article, a number of news organizations, "including The Kansas City Star and The Associated Press, filed suit Thursday against the Missouri Department of Corrections over its refusal to reveal the source of drugs used to carry out executions." Here is more about the suit:

The suit, filed in Cole County Circuit Court in Jefferson City, alleges that the Corrections Department is violating the Missouri Sunshine Law by denying repeated requests for information about the “composition, concentration, source and quality of drugs used to execute inmates in Missouri.” By withholding access to information that historically has been publicly available, the department also is violating the First and Fourteenth amendments of the U.S. Constitution, according to the suit....

Thursday’s suit [claims] that public disclosure of the information “reduces the risk that improper, ineffective or defectively prepared drugs are used.”

“The constitution thus compels access to historically available information about the type and source of drugs used in lethal injection executions because disclosure promotes the functioning of the process itself and is essential for democracy to function,” according to the suit.

Joining The AP and The Star in the suit are Guardian US, the New York-based digital news service of England’s The Guardian; the St. Louis Post-Dispatch; and the Springfield News-Leader.

Meanwhile, over in federal court has detailed in this new Reuters report, a "Missouri death row inmate is asking a federal court to allow videotaping his execution, scheduled for next week, to record any evidence of cruel and unusual punishment in violation of the U.S. Constitution." Here is more on this other legal front:

A lawyer filed a motion on Friday in Kansas City on behalf of Russell Bucklew, 45, who is scheduled to die by lethal injection on May 21 for the 1996 murder of Michael Sanders in southeast Missouri. Last week, Bucklew filed a motion in the same court to halt his execution because of a rare health condition that his lawyer, Cheryl Pilate, said would cause him extreme pain and possible suffocation.

A videotape would preserve evidence if he survives and wants to oppose another execution or is injured and wants to file a claim, the motion states. It further states that if the inmate dies but suffers "prolonged and excruciating execution or chokes and suffocates to death," the video would be evidence for a claim by his estate. "If Missouri officials are confident enough to execute Russell Bucklew, they should be confident enough to videotape it," Pilate said in a news release. "It is time to raise the curtain on lethal injections."

May 16, 2014 in Baze lethal injection case, Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

Federal judge splits the difference in sentencing former SAC money manager to 3.5 years

As reported in this Wall Street Journal article, a federal district judge in a high-profile white-collar sentencing today imposed a prison term roughly half-way between what federal prosecutors and the defense sought.  Here are the basics:

A federal judge sentenced former SAC Capital Advisors LP portfolio manager Michael Steinberg to three and a half years in prison Friday, saying he hoped Wall Street would learn from this case. The term was well below what prosecutors had sought.

U.S. District Judge Richard Sullivan called the former senior SAC employee "a basically good man," citing evidence of his character supplied in 68 letters sent by his family and friends. But he also pointed to the seriousness of Mr. Steinberg's insider trading.  "They are crimes that go to the heart of living in an honest society and having a market system," he said during a hearing in Manhattan federal court.  Wall Street, he hoped, would "derive lessons."

Mr. Steinberg, 42 years old, is SAC's most senior former employee to be convicted of insider trading.  Prosecutors had asked for a sentence of 5¼ to 6½ years to send a strong deterrent message to the market.  Mr. Steinberg's lawyers had requested less than half that amount.

Mr. Steinberg was convicted in December on four counts of securities fraud and one count of conspiracy for trading on confidential information, handing prosecutors the first verdict from a federal jury to back up their allegations that there was insider trading at SAC.  There is a chance Friday's sentence won't stick.  A pending appeal in a related insider-trading case could bolster Mr. Steinberg's chances to overturn his conviction.

May 16, 2014 in Booker in district courts, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (0) | TrackBack

Form, function and finality of sentences through history: the Modern Era

As explained here, I am "celebrating" the official publication of my new article titled "Re-Balancing Fitness, Fairness, and Finality for Sentences" (which is available in full via this SSRN link) through a series of posts exploring sentence finality doctrines and practice.  And, as set forth in this prior post, a central theme of my piece is that different conceptual, policy, and practical considerations are implicated when a defendant seeks only review and reconsideration of his final sentence and does not challenge his underlying conviction.  

As noted in prior posts, my theme is developed descriptively in the first part of my article as I showcase (perhaps too briefly) how the forms and functions of different punishment systems throughout US history provide different frameworks for the legal and practical relationship between conviction finality and sentence finality.  In this post, I will reprint my article's final historical observations about sentence finality during the "Modern Era" stretching from the the 1970s through today.  At the start of this period, U.S. sentencing philosophies, policies, and practices changed dramatically.  Legislatures through this period have embraced determinate sentencing laws that require prison sentences for most offenses and require very lengthy prison terms for nearly all serious offenses and repeat offenders.  These modern sentencing realities, in turn, has considerably changed the nature and stakes of issues surrounding sentence finality:

[Modern incarceration] statistics suggest there may now be more individuals condemned to die in America’s prisons based on their current “final” sentences than the total prison population in the 1960s when courts and scholars began earnestly discussing the importance of finality for criminal judgments.  As explained before, the then-prevailing practices of indeterminate sentencing and parole entailed that the vast majority of 300,000 persons incarcerated in 1970 could take comfort in the then-prevailing reality that the duration of and justification for their ongoing prison terms would be regularly reviewed and reconsidered by corrections officials.  Today, in sharp contrast, the majority of the 2.25 million incarcerated individuals in the United States cope with the now-prevailing reality that their prison sentences are fixed and final and not subject to any regularized means of review or reconsideration for any purposes.

In sum, the transformation of the sentencing enterprise and embrace of mandatory sentencing schemes throughout the United States over the past four decades has been remarkable and remarkably consequential for the considerable number of offenders sentenced to significant terms of imprisonment.  The highly discretionary indeterminate sentencing systems that had been dominant for a century have been replaced by an array of sentencing structures that govern and control sentencing decisionmaking.  Most pertinent to the topic of this Essay, prison sentences that had for more than a century been defined by a lack of finality are now fixed and final in the vast majority of all serious criminal cases at the moment they are announced by a sentencing judge.  Consequently, two centuries of U.S. criminal justice experience in which sentence finality was not a distinct concern has given way, due to dramatic changes in sentencing laws, policies, and practices, to a modern era of mass and massive terms of incarceration that makes the treatment of final sentences arguably the most important issue for hundreds of thousands of current prisoners and for the tens of thousands more defendants being sentenced to lengthy prison terms each year throughout the United States.  Sentence finality, in short, has gone from being a non-issue to being arguably one of the most important issues in modern American criminal justice systems.

Prior posts in this series:

May 16, 2014 in Mandatory minimum sentencing statutes, Recommended reading, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

New commentary highlights why DOJ's new clemency initiative is not enough of a good think

Megan Quattlebaum has this notable new commentary up at Huffington Post under the headline "2,785 Petitioners for Clemency Need All of the Mercy Obama Can Give."  It highlights one of many cases not formally covered by the new DOJ clemency guidelines but still subject to what seems like an unfair federal drug sentencing system. Here are excerpts:

Shortly after high school, Michael Keating fell in with a bad crowd in his rural hometown in Missouri, and began experimenting with meth. By the age of 20, he was hooked and using the drug on a daily basis.  He met a man who said that if Michael allowed him to use the woods behind his house to produce drugs, he would give the young addict some of what he made.

Soon thereafter, police officers received information that meth was being made at Michael's home. They searched his property and found a bucket of waste water in the backyard. Although the waste water contained less than a gram of methamphetamine, pursuant to the Eastern District of Missouri's practice (which has been rejected by the majority of federal circuit courts and the U.S. Sentencing Commission) Michael, the sole defendant in the case, was charged as though the entire weight of the water in the bucket -- more than 2,700 grams -- was a marketable drug. He was sentenced to serve more than 11 years in federal prison.

Late last month, the Department of Justice announced a laudable initiative to seek out nonviolent drug offenders with long prison sentences whom it will consider for clemency. The initiative is open to federal prisoners who meet six criteria, including that they have served at least ten years of their sentence and likely would have received a substantially lower sentence if convicted of the same offense today. The goal, according to President Obama, is to help "restor[e] fundamental ideals of justice and fairness" to our penal system by releasing those who "would have already served their time and paid their debt to society" had they been sentenced under current law.

This is a tremendous step forward, but it won't help Michael Keating. He has only served seven and a half years in prison, not ten, as the initiative requires. And the law under which he was sentenced hasn't changed -- in Missouri, possession of the un-ingestible by-product of drug production is still punished just as harshly as possession of the same amount of marketable drugs. Michael's case is emblematic of our need to go even further to right the wrongs of failed sentencing policies.

Still, some who have commented on the initiative seem to view it as too much justice. One group of critics fears the "early" release of convicted felons into our communities. But, as Michael's story demonstrates, we need to take a hard look at individual cases before we assume that those with past convictions pose a present danger....

[W]hile President Obama is right to search out new candidates for sentence mitigation, he shouldn't neglect those meritorious individuals whose cases are already before him. Michael Keating's application has been pending for over two years; it is one of the 2,785 sentence commutation petitions on which the Pardon Attorney has not yet acted. In addition to seeking out new submissions, the President should take a close look at those he has in hand. On the path to saner sentencing policy, we will need all of the mercy that he can give.

May 16, 2014 in Clemency and Pardons, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Record-long sentence?: 81-year-old child molester gets 935- to 1,870-year prison sentence

As reported in this local article, in order to "serve as a warning to other child predators," Pennsylvania Judge Albert Cepparulo "has imposed a 935- to 1,870-year prison sentence to an 81-year-old man who sexually abused a girl for four years and videotaped nearly every assault."  Here is what led the judge to require an elderly offender to remain imprisoned until at least the year 2949:

Thomas Holliday was convicted in January of 234 crimes, including hundreds of counts related to creating and possessing child pornography.  Prosecutors said Holliday began abusing the girl in 2009, when she was 14.

Holliday was a family friend who offered to help the girl's mother financially and the girl was sent to live with him. He denied the charges, telling the judge that he and the teen were in love. 

May 16, 2014 in Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

May 15, 2014

Intriguing Second Circuit opinion concerning which priors trigger 10-year child porn mandatory

Today in US v. Lockhart, No. 13-602 (2d Cir. May 15, 2014) (available here), a Second Circuit panel resolves a notable statutory question concerning what prior sex offenses serve as predicates triggering a 10-year mandatory minimum prison term for a child porn possession offense.  Here is how the opinion in Lockhart starts along with a later paragraph highlighting why this issue could perhaps get Supreme Court attention:

In this case, we must decide whether a sentencing provision that provides for a ten‐year mandatory minimum term of imprisonment if a defendant was previously convicted “under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward,” 18 U.S.C. § 2252(b)(2), requires that an “aggravated sexual abuse” or “sexual abuse” conviction involve a minor or ward, or whether only “abusive sexual conduct” is modified by the phrase “involving a minor or ward,” such that a sexual abuse conviction involving an adult victim constitutes a predicate offense. We conclude that the statutory text and structure indicate that the latter reading is correct and therefore affirm the district court’s imposition of a ten‐year sentence on Defendant‐Appellant Avondale Lockhart....

Looking at § 2252(b)(2) as a whole, we find, as a number of other circuits have explained, that “it would be unreasonable to conclude that Congress intended to impose the enhancement on defendants convicted under federal law, but not on defendants convicted for the same conduct under state law.” United States v. Spence, 661 F.3d 194, 197 (4th Cir. 2011).... This reasoning compels us to conclude that “involving a minor or ward” modifies only prior state convictions for “abusive sexual conduct,” not those for “sexual abuse” or “aggravated sexual abuse,” each of which would constitute a predicate federal offense if committed against an adult or a child.

We acknowledge that the Sixth, Eighth and Tenth Circuits have reached the opposite conclusion, namely, that the phrase “involving a minor or ward” modifies all three categories of state sexual abuse crimes.  However, the Eighth and Tenth Circuits have drawn this conclusion without elaborating on their reasoning. Indeed, these circuits appear merely to have assumed that a prior state‐law sexual abuse conviction requires a minor victim for purposes of the sentencing enhancement, an assumption that made little difference in those cases since the predicate violations at issue involved minor victims.... The Sixth Circuit has reached this conclusion most explicitly, although it did so because it found that another panel of that court had “already considered the proper construction of the statutory language at issue,” and that that prior decision bound the current panel, even though the earlier opinion did not engage in any express analysis of the statutory language.  United States v. Mateen, 739 F.3d 300, 304–05 (6th Cir. 2014) (citing United States v. Gardner, 649 F.3d 437 (6th Cir. 2011)), reh’g en banc granted, opinion vacated (Apr. 9, 2014).  We are not compelled to follow such unexplored assumptions in coming to our conclusion here.

May 15, 2014 in Mandatory minimum sentencing statutes, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

AG Holder assails solitary for juves with mental illness

As highlighted by this DOJ press release, "Attorney General Eric Holder on Wednesday called for an end to the excessive use of solitary confinement for youth that suffer from mental illness." Here is more about AG Holder's latest use of his criminal justice bully pulpit:

“Across the country, far too many juvenile detention centers see isolation and solitary confinement as an appropriate way to handle challenging youth, in particular youth with disabilities. But solitary confinement can be dangerous, and a serious impediment to the ability of juveniles to succeed once released.

“In a study released last year by the Office of Juvenile Justice and Delinquency Prevention, 47 percent of juvenile detention centers reported locking youth in some type of isolation for more than four hours at a time. We have received reports of young people who have been held in solitary confinement for up to 23 hours a day, often with no human interaction at all. In some cases, children were held in small rooms with windows that were barely the width of their own hands.

“This is, to say the least, excessive. And these episodes are all too common.

“This practice is particularly detrimental to young people with disabilities – who are at increased risk under these circumstances of negative effects including self-harm and even suicide. In fact, one national study found that half of the victims of suicides in juvenile facilities were in isolation at the time they took their own lives, and 62 percent of victims had a history of solitary confinement....

“We must ensure in all circumstances – and particularly when it comes to our young people – that incarceration is used to rehabilitate, and not merely to warehouse and forget. Our nationwide effort to end the unnecessary or excessive seclusion of youth with disabilities will not be completed solely with one settlement or court filing. But as a department, we are dedicated – and as Attorney General, I am committed – to doing everything possible to ensure the effectiveness and integrity of our criminal and juvenile justice system. In the days ahead, we will continue to make good on our commitment to the best practices of law enforcement and the highest ideals of our nation.” 

May 15, 2014 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

"Crime, Teenage Abortion, and the Myth of Unwantedness"

The title of this post is the title of this intriguing new empirical paper by Gary Shoesmith available via SSRN. Here is the abstract:

This study shows that varying concentrations of teenage abortions across states drive all of Donohue and Levitt’s (2001, 2004, 2008) crime and abortion results, narrowing the possible link between crime and abortion to mainly 16 percent of U.S. abortions.  The widely promoted and accepted claim that unwantedness links crime and abortion is false. Across all states, there is a near one-to-one correspondence between ranked significance of abortion in explaining crime and ranked teenage abortion ratios.  The results agree with research showing teenage motherhood is a major maternal crime factor, while unwantedness ranks fifth, behind mothers who smoke during pregnancy.  The results are also consistent with the reasons women have abortions by age group.

For future research, a specific means is proposed to reconcile recent papers that apply alternative methods to DL’s data but find no link between crime and abortion link.  Given a 2013 Census Bureau report showing that single motherhood is the new norm among adult women, the results suggest the need to reeducate adult women about unwantedness and crime.

May 15, 2014 in Data on sentencing, National and State Crime Data, Offender Characteristics | Permalink | Comments (4) | TrackBack

Poll after ugly execution highlights enduring death penalty support and openness to various execution methods

As highlighted by this NBC News article, headlined "Americans Back Death Penalty by Gas or Electrocution If No Needle: Poll," a new poll seems to confirm my suspicion in this recent post that the ugly execution in Oklahoma would not change many modern capital perspectives. Here are the results of this poll:

A badly botched lethal injection in Oklahoma has not chipped away at the American public's support of the death penalty, although two-thirds of voters would back alternatives to the needle, an exclusive NBC News poll shows.

One in three people say that if lethal injections are no longer viable — because of drug shortages or other problems — executions should be stopped altogether, according to the survey of 800 adults by Hart Research and Public Opinion Strategies for NBC News. But many others are open to more primitive methods of putting prisoners to death: 20% for the gas chamber, 18% for the electric chair, 12% for firing squad and 8% for hanging....

The most recent example of what can go wrong [with lethal injection] is the April 29 execution of Clayton Lockett, who appeared to regain consciousness and writhe in pain midway through. The procedure was halted but Lockett, convicted of rape and murder, died anyway. The details of his death were condemned by the White House and provoked fresh debate over capital punishment and how it's carried out.

Most people polled said they knew about the uproar, but it did not appear to change minds about whether the government should kill murder convicts. A comfortable majority of those questioned — 59% — said they favor the death penalty as the ultimate punishment for murder, while 35% said they are opposed.

That split is in line with surveys done before Lockett's death in the last two years, and also reflects the erosion of support for capital punishment since the 1990s, when it was more than 70%. "I don’t think this fundamentally altered views about the death penalty," said Bill McInturff of Public Opinion Strategies.

Republicans, whites, Protestants and older people were more likely to favor execution than Democrats, blacks and Latinos, Catholics and young people. More than a third of those in favor said the strongest argument for the death penalty is that it's an "appropriate consequence." A similar proportion of those against it said the risk of killing someone who had been wrongly convicted was the most powerful argument....

All 35 capital punishment states use lethal injection as their primary method, although eight of them would allow electrocution, gas, hanging or firing squad in some cases, according to the Death Penalty Information Center. But lethal injections are becoming increasingly difficult to carry out because pharmaceutical companies don't want their products used, some compounding pharmacies are getting out of the execution business, and inmates are trying to force states to reveal their suppliers.

Some state lawmakers have introduced measures that would bring back the older methods, but some pro-execution advocates believe that would lower support from a public that has gotten used to "medicalized" deaths.

A few recent related posts:

May 15, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

May 14, 2014

"Federal Judges Are Cutting Rich Tax Cheats Big Sentencing Breaks"

The title of this post is the headline of this lengthy and interesting new piece at Forbes by Janet Novack.  Here are excerpts:

Increasingly, federal judges are going easy on tax cheats, or at least easier than the U.S. Sentencing Commission’ s guidelines say they should. The trend has been quietly building since 2007, but was given a high profile Forbes 400 face in January when a Chicago federal judge let billionaire H. Ty Warner off with probation for hiding as much as $106 million in UBS AG and a smaller Swiss bank for more than a decade and evading at least $5.5 million in tax on his secret accounts.  According to the sentencing guidelines, the 69-year-old Warner, who made his fortune by creating Beanie Babies, should have gotten 46 to 57 months in the federal pen.  Prosecutors have appealed Warner’s sentence, asserting, among other things, that the judge was unreasonably impressed by his “not so extraordinary” charity and by gushing letters from employees, and business associates....

[I]n 2005, the Supreme Court ruled in U.S. v Booker that the guidelines were merely advisory.  Subsequent Supreme Court and appellate decisions have made it clear that trial judges have broad discretion to depart from the guidelines and will only be overturned if they’ve failed to properly consider the guidelines or their decision is clearly unreasonable.  “Once they make the noises about calculating the guidelines, they can come up with their own numbers, and they can base it on anything they want,” says Scott A. Schumacher, a professor at University of Washington Law School who has written a new paper on tax-sentencing post-Booker that is being published in the Villanova Law Review.  While the percentage of all sentences that fall within the guidelines has steadily declined since Booker, the change in tax sentences has been particularly dramatic, he adds.

For example, in fiscal 2013, judges gave below guideline sentences, without buy-in from prosecutors, to 45% of those sentenced for tax crimes, but just 28% of those sentenced for embezzlement; 26% of those sentenced for fraud; and 22% of those sentenced for forgery or counterfeiting. (Another 20% of tax offenders got sentence reductions which prosecutors sponsored, usually as a reward for providing “substantial assistance” to the government.)

While the light sentencing of some offshore cheats has gotten attention, the larger leniency-for-tax crimes trend has been mostly obscured by Internal Revenue Service reports, which show the average prison term for “tax and tax related crimes” rising from 21 months in 2004 to 31 months in 2013.  The IRS numbers, however, are skewed by the long prison sentences (some more than 10 years) being meted out to those convicted in the recent epidemic of identity theft refund fraud — a crime Kathryn Keneally, U.S. Assistant Attorney General for the Tax Division described at an American Bar Association Tax Section meeting last week as “more like street crime.”

The Sentencing Commission’s statistics, by contrast, count only pure tax crimes and not those in which identity theft, public corruption, drug dealing or some other charge is considered the primary offense and tax evasion is thrown in.  By the USSC’s figuring, the average sentence for a tax convict last year was just 14 months, with a median of 12 months.  In those cases where sentencing judges handed out a downward departure citing the Booker decision, the commission’s data shows, the median sentence was cut by 78.5%; in such cases the most lenient within-guideline sentence would have been a median of 16 months and the lucky convicts got a median sentence of just four months. (A side benefit: such short sentences can be served in community facilities, instead of the federal pen.)

Surprisingly, the average sentence for tax crimes hasn’t changed much, even as the percentage of tax cheats getting a sentencing break has risen.  The likely explanation is found in the way the sentencing guidelines work, ratcheting up prison terms as the amount of tax the government was cheated out of rises.  As prosecutors have focused more on wealthier tax cheats and bigger dollar cases involving both onshore and offshore evasion, the sentences tax offenders are supposed to get have risen too. Last Friday, for example, a federal judge sentenced Patricia Hough, a 67-year-old Fort Myers, Fla. psychiatrist, to 24 months in jail.  That might sound like a lot, except her guideline sentence was 80 to 100 months....

These days, sentencing judges routinely give lip service to that need for general deterrence, but still seem sympathetic to the argument that by being prosecuted, individual defendants have already suffered more than their chiseling peers.  In offshore cases, defendants’ lawyers never fail to point out that tens of thousands of people (the last count released by the IRS was, 43,000) with undeclared foreign accounts have escaped prosecution through the Offshore Voluntary Disclosure Program....

Sentencing judges also tend to be sympathetic to other arguments typically made by wealthy and successful convicts: that they have given a lot to charity; have already been publicly humiliated; have paid heavy fines (in Warner’s case a $53 million penalty for failing to file required reports of Foreign Bank and Financial Accounts ); and even that they are simply too valuable as either job creators or community volunteers to be sitting in jail. Chicago Federal District Court Judge Charles P. Kocoras, before giving Warner probation, cited all those considerations....

[S]ince the Supreme Court’s Booker decision, only one tax sentence has been reversed on appeal. In that case a sentencing judge gave probation to Frederick L. Engle, who had evaded his taxes for 16 years using shell corporations.  According to sentencing guidelines, he should have gotten 24 to 30 months.  The sentencing judge’s stated reason for the leniency was that Engle, a high earning sales rep for shoemaker Nine West who had relationships with Wal-Mart, Target and J.C. Penny, would be able to earn good money to pay back the IRS if he was kept out of jail and allowed to travel abroad.

In overturning the sentence, a three judge panel of Fourth Circuit Court of Appeals wrote: “Reduced to its essence, the district court’s approach means that rich tax-evaders will avoid prison, but poor tax-evader will almost certainly go to jail. Such an approach, where prison or probation depends on the defendant’s economic status, is impermissible.”

After Engle failed to appear for his new sentencing hearing and continued to evade tax, he was sentenced in absentia to 60 months in jail.  When U.S. Marshals caught up with him, he got an additional year for failure to appear.  Now 73, Engle is serving his time at the Butner, N.C. federal correctional institution and is not scheduled for release until October 2015.

May 14, 2014 in Booker in district courts, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Form, function and finality of sentences through history: the Rehabilitative Era

As explained here, I am "celebrating" the official publication of my new article titled "Re-Balancing Fitness, Fairness, and Finality for Sentences" (which is available in full via this SSRN link) through a series of posts exploring sentence finality doctrines and practice.  As explained in this prior post, a central theme of my piece is that different conceptual, policy, and practical considerations are implicated when a defendant seeks only review and reconsideration of his final sentence and does not challenge his underlying conviction.  

As explained in this prior post discussing Founding Era realities, my theme is developed descriptively in the first part of my article as I showcase (perhaps too briefly) how the forms and functions of different punishment systems throughout US history provide different frameworks for the legal and practical relationship between conviction finality and sentence finality.  In this post, I will reprint my article's observations about the dynamics of conviction and sentence finality during the so-called Rehabilitative Era stretching from the mid 19th Century to the latter part of the 20th Century.  During this period, prisons were constructed from coast to coast as American criminal justice systems nationwide embraced rehabilitation as the central punishment concern, and a highly discretionary “medical” model came to dominate criminal sentencing procedures and practices.  This punishment model, as explained here, had a considerable impact on sentence finality and its relationship to conviction finality:

This rehabilitative model of sentencing and corrections was avowedly disinterested and arguably disdainful of sentencing finality, at least with respect to the traditional sentences of prison and probation.  After a sentencing judge had imposed a prison term, which sometimes would be set in a range as broad as one year to life, prison and parole officials were expected and instructed to consistently review offenders’ behavior in prison to determine if and when they should be released to the community.  All imprisoned defendants would have regular parole hearings at which time their sentence terms were, formally and functionally, subject to review and reconsideration by corrections officials. Even after officials decided to set free a prisoner on parole, or if a defendant was sentenced to probation rather than prison in the first instance, correctional supervisors still kept close watch on offenders to assess their behavior in the community again with an eye toward reviewing and modifying sanctions as needed to fit the needs of the offender and society. Release on parole or probation was never really a final sentencing disposition: government officials readily could and often would revoke parole or probation to remand those who misbehaved in the community back to prison.

Significantly, this rehabilitative model of sentencing and corrections with its fundamental disaffinity for treating any sentencing term as final was still dominant in the 1960s when courts and scholars began earnestly discussing the importance of treating criminal judgments as final.  This historical reality should inform consideration of this period’s debate over the finality of criminal judgments in two critical ways: (1) because it was widely understood (and still well-accepted) that all sentences were indeterminate and subject to review and reconsideration by corrections officials, advocates stressing the importance of treating criminal judgments as final were necessarily focused only on the finality of criminal convictions; and (2) any problems or harms resulting from giving too much weight to the interests of finality for criminal convictions were necessarily mitigated by parole mechanisms which allowed reconsideration of any and all criminal sentences that might later be considered unfit or unfair based on subsequent legal or social developments.

Prior posts in this series:

May 14, 2014 in Procedure and Proof at Sentencing, Recommended reading, Sentences Reconsidered | Permalink | Comments (12) | TrackBack

How do we reconcile Senator Jeff Sessions' vocal support for the FSA and strong opposition to the SSA?

SessionsThere are many interesting claims and notable contentions in the letter sent by Senators Grassley, Cornyn and Sessions to their colleagues explaining their opposition to the Smarter Sentencing Act (first reported here).  Most notable, I think, are the essential ideas set out at the start and end of the letter: despite a decades-long federal drug war that has grown the size of the federal government and has long included severe mandatory minimums prison terms, we still find ourselves in the midst of a "historic heroin epidemic" which apparently calls for "redoubling our efforts." I believe that the sensible response to ineffective federal government drug policies and practices would be to consider changing some of these policies and practices, not "redoubling our efforts" (and thereby redoubling the size of an apparently ineffective federal government bureaucracy).

But, as the question in the title of this post suggests, I am now especially wondering how Senator Jeff Sessions, who was a vocal supporter of Congress's decision in 2010 to reduce crack mandatory minimum sentences through the Fair Sentencing Act, has now signed on to a letter forcefully opposing a proposal to reduce other drug mandatory minimum sentences through the Smarter Sentencing Act.   Notably, in this March 2010 statement, Senator Sessions stated that he has "long believed that we need to bring greater balance and fairness to our drug sentencing laws" and that the FSA's change to crack mandatory minimums will "achieve needed fairness without impeding our ability to combat drug violence and protect victims." In his words, the FSA's reforms to crack mandatory minimums "strengthen our justice system."

But now, four years later, Senator Sessions has signed on to a letter opposing the Smarter Sentencing Act which claims that this proposal to "reduce sentences for drug traffickers would not only put more dangerous criminals back on the streets sooner, but it would send the message that the United States government lacks the will or is not serious about combatting drug crimes." This letter also asserts that "lower mandatory minimum sentences mean increased crime and more victims."

Critically, the SSA changes federal drugs sentencing laws significantly more than the FSA: the SSA cuts the minimum prison terms for all drug offenses rather than just increasing the amount of one drug needed to trigger existing mandatory prison terms as did the FSA.  Consequently, one can have a principled basis to have supported the FSA's reduction of crack sentences (as did nearly every member of Congress when the FSA passed) and to now oppose the SSA's proposed reduction of all federal drug sentences.  However, back in  2010, Senator Sessions recognized and vocally stated that reducing some federal drug sentences would actually "strengthen our justice system" by helping to "achieve needed fairness without impeding our ability to combat drug violence and protect victims."  I believe (like a majority of the Senate Judiciary Committee) that the SSA would likewise "strengthen our justice system," but Senator Sessions now seem to think it will "mean increased crime and more victims."

Some prior posts about the SSA and debates over federal sentencing reform:

May 14, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (12) | TrackBack

Another week with lots of marijuana developments covered at MLP&R

Continuing a recent tradition of a mid-week review of activities on marijuana law and policy fronts, here is a round up of recent notable posts from Marijuana Law, Policy and Reform:

May 14, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (2) | TrackBack

May 13, 2014

Fifth Circuit panel grants last-minute capital stay due to key IQ evidence hidden by Texas prosecutors

As reported in this AP article, headlined "Court halts execution over mental health claims," the Fifth Circuit "halted a convicted Texas killer's scheduled execution Tuesday so his attorneys can pursue appeals arguing he's mentally impaired." The reason this is coming up in this way now, as the Fifth Circuit explain in In re Campbell, No. 14-20293 (5th Cir. May 13, 2014) (available here) is because Texas prosecutors hid key IQ evidence from the defense for a decade. Here is how the Campbell opinion starts and a key paragraphs from its closing pages:

Robert James Campbell, a death-row prisoner whose execution is scheduled for Tuesday, May 13, 2014, contends that he is intellectually disabled (formerly called “mentally retarded”) and is, therefore, constitutionally ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002).  He has filed with this court a motion for authorization to file a successive federal habeas corpus petition asserting his Atkins claim and a motion for stay of execution pending the resolution of that claim. For the reasons that follow, we grant both motions....

The evidence presented by Campbell at this stage indicates that, in 2003, the District Attorney’s office had in its possession evidence reflecting Campbell’s IQ score of 68, yet the State opposed Campbell’s 2003 motion to authorize a successive habeas claim based on Atkins on the basis that the “sparse” school records failed to establish intellectual disability.  The State also asserted that there was no “credible evidence” of intellectual disability.  Also in 2003, Campbell sought funds for intellectual-function testing, which the State opposed even though the District Attorney had evidence of the IQ score of 68.

Moreover, according to Campbell, the Texas Department of Criminal Justice informed Campbell’s prior attorney that, during Campbell’s earlier robbery incarceration, he received an IQ test result of 84.  As Campbell now argues, that was not true and contrary to the actual evidence.  It is not facially unreasonable that Campbell’s prior attorney relied upon the department’s statement and was persuaded that it was fruitless to pursue this claim further.  Indeed, as Judge Alcala of the Texas Court of Criminal Appeals stated in her dissent, “it would be unjust to penalize an applicant for not uncovering such a falsehood previously when he had no basis to believe that a falsehood had been conveyed to him.”...

It is regrettable that we are now reviewing evidence of intellectual disability at the eleventh hour before Campbell’s scheduled execution.  However, from the record before us, it appears that we cannot fault Campbell or his attorneys, present or past, for the delay.  According to Campbell, in the period immediately after Atkins was decided, his attorney diligently searched for evidence of intellectual disability.  And, when the Texas Department of Criminal Justice failed to turn over the results of the intelligence test they had administered on Campbell upon the attorney’s request for “any and all intellectual functioning tests,” the State gave the attorney incorrect and incomplete information. Thus, although the delay is regrettable, we do not see it as militating against a stay of execution in this case

May 13, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Another notable letter expressing opposition to SSA ... on US Senate letterhead

As noted here in this prior post, Bill Otis at Crime & Consequences broke the news yesterday that a significant number of significant former federal prosecutors signed on to a public letter to Senators Harry Reid and Mitch McConnell to express publicly their opposition to any reform of federal drug mandatory minimums.   This morning I discovered that late yesterday Bill Otis put up here at C&C more notable news about opposition to drug sentencng form:  apparently this week, Senators "Chuck Grassley, John Cornyn and Jeff Sessions [have written] an all-colleagues letter explaining why the Smarter Sentencing Act should be defeated." 

(Side note: I use the term "apparently" concerning the report from Bill Otis regarding this letter because his reprinting of the letter at C&C here includes only the contents of the letter without any date or reprinted signatures.  In addition, Bill provide no link to the actual letter in any form, nor can I find any public resource or news media reporting on this letter.  Also, and a check/search of the official websites of the US Senate and of Senators Grassley and Cornyn and Sessions so far has produced no copy of the letter.   I assume this letter really exists, and I hope to be able to provide a link to an official public release of this letter shortly.  But I am finding it now more than a bit peculiar and troublesome that Bill Otis and Crime & Consequences has seemingly become the (un)official reporter of official opposition to the Smarter Sentencing Act.   These developments reinforce my fear that Bill Otis and perhaps some other unnamed lobbyists and partisans are playing a very significant and cloistered role in seeking to derail any new federal sentencing reforms in Congress.)

Notably, the substance of the letter reprinted at C&C echoes a lot of the themes that have been stressed by opponents of any federal sentencing reform, and it restates some of the points forcefully stated by Senator Grassley in this Senate floor speech last month.  But the letter is now the strongest collection of many of the strongest arguments against some (but not all) of the provisions of the Smarter Sentencing Act.  I recommend everyone read the letter, and I hope to be able to provide a link to a copy of the actual document from an official source before too long.

Some prior posts about the SSA and debates over federal sentencing reform:

UPDATE:  I am pleased and grateful that I was able to receive from a helpful reader a pdf copy of the original letter sent by the Senators referenced in this post and reprinted originally at C&C.   Minus the footnotes, here are the first two paragraphs of the letter followed by a downloadable copy:

The nation is in the midst of an historic heroin epidemic that is wreaking havoc in cities and towns from New England to the Pacific Northwest. According to the Drug Enforcement Administration (DEA), the amount of heroin seized at the southwest border has increased nearly 300% from 2008 to 2013, while heroin-overdose deaths have increased by 45%. At the same time, approximately 4.3 million people abuse or are dependent on marijuana. In 2012, almost 32 million people ages 12 and older reported using marijuana within the past year and, in 2013, one out of every 15 high school seniors reported being a near daily user. According to the 2013 National Survey Results on Drug Use, 50% of high school seniors reported having used illegal drugs at some point in their lives.

It is against this grim backdrop that we write to express our concerns with S. 1410, the "Smarter Sentencing Act of 2014," which would benefit some of the most serious and dangerous offenders in the federal system by cutting in half (or more) mandatory minimum sentences for high-level drug trafficking offenses. The proponents of S. 1410 claim that it will reduce sentences for so-called "low-level, non-violent" drug offenders. These terms, as well as the bill's claimed effect, are highly misleading. In fact, nothing in this bill will affect the lowest level federal drug offenders at all.

Download Senators letter to Colleagues on SSA

May 13, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

"Modifying Unjust Sentences"

The title of this post is the title of this notable new paper by E. Lea Johnston now available via SSRN. Here is the abstract:

The United States is in the midst of an incarceration crisis. Over-incarceration is depleting state budgets and decimating communities. It has also led to the overfilling of prisons, which has degraded conditions of confinement, increased violence, and reduced access to needed medical and mental health care. Judicial sentence modification offers a means to address both the phenomenon of over-incarceration and harsh prison conditions that threaten unjust punishment. Indeed, some legislatures have framed states’ early release provisions as fulfilling goals of proportionality and just punishment. Proportionality is also an express purpose of the proposed Model Penal Code provisions on judicial sentence modification.

This paper explores whether the tools available to judges at sentence modification hearings are adequate to respond to the unjust punishment experienced by prisoners. In examining this question, the article focuses on one population particularly likely to experience disproportionate or inhumane punishment: inmates with serious mental disorders. A deep literature suggests that individuals with serious mental illnesses are especially likely to be victimized by staff and inmates, to be housed in isolation, and to experience an exacerbation of mental illness while incarcerated. This article’s analysis reveals a gap in remedial coverage for some members of this population. In particular, existing remedies are inadequate to respond to the plight of those prisoners who must remain incarcerated, but for whom incarceration in current conditions constitutes a disproportionate or inhumane punishment.

To remedy this shortcoming, the article proposes that states authorize judges, upon a finding of past and likely future unjust punishment, to modify a mentally disordered prisoner’s conditions of confinement. Only with such expanded authority will the process of sentence modification allow judges to reserve prison for those who deserve it and ensure that continued confinement will be a just and appropriate sanction.

May 13, 2014 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Corruption nets former Israeli prime minister a six-year prison sentence

As reported here via CNN, Israel's former "Prime Minister Ehud Olmert was sentenced Tuesday to six years in prison for taking bribes while mayor of Jerusalem."  Here are more details concerning this high-profile crime and punishment from the promised land:

Olmert was also fined 1 million shekels (about $289,000), Israeli state radio IB reported.

Olmert was convicted in March of receiving about $161,000 in bribes related to a controversial Jerusalem housing project called Holyland. The judge acquitted Olmert on a third count of bribery. The developer of Holyland, Hillel Cherney, had been previously convicted of bribing Olmert and other high-level officials in exchange for Holyland approvals.

Olmert was mayor of Jerusalem from 1993 to 2003. Olmert, an attorney who in 1973 became the youngest person ever elected to Israel's parliament, the Knesset, served as prime minister from 2006 to 2009. He announced his resignation shortly after police recommended corruption charges against him.

In August 2012, he was convicted of breach of trust and acquitted on two corruption-related charges after a trial that lasted nearly three years. He was given a 3-month suspended jail sentenced and fined about $19,000 in that case....

Prosecutors accused him of double-billing government agencies for travel, taking cash from an American businessman in exchange for official favors and acting on behalf of his former law partner's clients.

May 13, 2014 in Celebrity sentencings, Sentencing around the world, White-collar sentencing | Permalink | Comments (0) | TrackBack

May 12, 2014

Despite execution problems elsewhere, Texas poised to carry out another death sentence on Tuesday

As highlighted by this new New York Times article, headlined "Facing Challenge to Execution, Texas Calls Its Process the Gold Standard," problems encountered by other states has not led official in Texas to question how it runs its machinery of death. Here are excerpts from the lengthy Times piece about modern Lone Star State capital punishment realities:

If Texas executes Robert James Campbell as planned on Tuesday, for raping and murdering a woman, it will be the nation’s first execution since Oklahoma’s bungled attempt at lethal injection two weeks ago left a convicted murderer writhing and moaning before he died.

Lawyers for Mr. Campbell are trying to use the Oklahoma debacle to stop the execution here.  But many in this state and in this East Texas town north of Houston, where hundreds have been executed in the nation’s busiest death chamber, like to say they do things right.

For two years now, Texas has used a single drug, the barbiturate pentobarbital, instead of the three-drug regimen used in neighboring Oklahoma.  Prison administrators from other states often travel here to learn how Texas performs lethal injections and to observe executions.  Texas officials have provided guidance and, on at least a few occasions, carried out executions for other states.

Even the protesters and TV cameras that used to accompany executions here have largely dissipated.  “It’s kind of business as usual,” said Tommy Oates, 62, a longtime resident who was eating lunch at McKenzie’s Barbeque last week, about one mile from the prison known as the Walls Unit.  “That sounds cold, I know. But they’re not in prison for singing too loud at church.”

More than any other place in the United States, Huntsville is the capital of capital punishment.  All of the 515 men and women Texas has executed since 1982 by lethal injection and all of the 361 inmates it electrocuted from 1924 to 1964 were killed here in the same prison in the same town, at the redbrick Walls Unit.  Over all, Texas accounts for nearly 40 percent of the nation’s executions....

Gov. Rick Perry is a staunch defender of the state’s record, saying that “in Texas for a substantially long period of time, our citizens have decided that if you kill our children, if you kill our police officers, for those very heinous crimes, that the appropriate punishment is the death penalty.”  On “Meet the Press” recently, he added, “I’m confident that the way that the executions are taken care of in the state of Texas are appropriate.”...

David R. Dow, a law professor at the University of Houston who has represented more than 100 death row inmates during their appeals, explained the state’s record of seeming success simply.  “When you do something a lot, you get good at it,” he said, adding archly, “I think Texas probably does it as well as Iran.”...

Some of those who work in the system are proud of their expertise.  Jim Willett, who was the warden at the Walls prison from 1998 to 2001, oversaw 89 executions.  Staff members who prepare prisoners for execution are trained and skilled, he said. The “tie-down team” that straps the prisoners onto the table, “can take that man back there and put those straps on perfectly and easily in 30 seconds.  This may sound odd to an outsider, but they take pride in what they do.” He added, “They’ve done it so often that it’s almost second nature to them.”...

Since 1976, Texas has carried out more executions than six other states combined — Alabama, Florida, Georgia, Missouri, Oklahoma and Virginia — all of which have some of the busiest death chambers.

On Monday, an appeal by Mr. Campbell's lawyers to stop the execution reached the United States Court of Appeals for the Fifth Circuit in New Orleans. The lawyers cited the execution in Oklahoma, where Clayton D. Lockett writhed and moaned on the table until prison officials halted the procedure.  Mr. Lockett died 43 minutes after the delivery of drugs into a vein in his groin began. Oklahoma has declared a six-month stay of the next execution.

The argument in the original complaint in the Campbell case, filed in federal court in Houston, tracks arguments in several current lawsuits challenging Texas’ execution process.  It focuses on efforts by Texas, Oklahoma and other states to restrict information about the source of the drugs.  Texas has declined to disclose such information as how its drug is tested for potency and purity, among other details of the process.  The lawyers for Mr. Campbell argue that “to permit this execution to proceed in light of the eye-opening events in Oklahoma should not be countenanced by a civilized society, nor tolerated by the constitutional principles that form the basis of our democracy.”

State officials say Texas is not like Oklahoma partly because it uses a single drug, the barbiturate pentobarbital, instead of the three-drug series employed north of the Red River.  This approach, along with other protections for prisoners in the process, was favored by a new report on the death penalty from The Constitution Project, a group that includes supporters and opponents of capital punishment....

Greg Abbott, the Texas attorney general, has opposed the request to stop the execution, stating that “recent problems in another state following an entirely different execution procedure do nothing to change this fact.”  The state argued that pentobarbital has been used successfully in 33 executions in Texas, and that testing showed the batch of the drug to be used, which came from a compounding pharmacy, was potent and “free of contaminants.”...

Support for the death penalty in Texas runs higher than in the rest of the country; a May 2012 University of Texas-Texas Tribune online poll showed that 53 percent of Texas voters said they supported the death penalty for murder over life imprisonment without the chance for parole. A Quinnipiac University telephone poll conducted in May 2013 found that 48 percent of American voters favored the death penalty over a life term for people convicted of murder.

May 12, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (7) | TrackBack

Form, function and finality of sentences through history: the Founding Era

As explained here, I am "celebrating" the official publication of my new article titled "Re-Balancing Fitness, Fairness, and Finality for Sentences" (which is available in full via this SSRN link) through a series of posts exploring sentence finality doctrines and practice.  As explained in this prior post, a central theme of my piece is that different conceptual, policy, and practical considerations are implicated when a defendant seeks only review and reconsideration of his final sentence and does not challenge his underlying conviction.  

This theme is developed descriptively in the first part of my article as I showcase (perhaps too briefly) how the forms and functions of different punishment systems throughout US history provide different frameworks for the legal and practical relationship between conviction finality and sentence finality.  I recount this historical story (too quickly) in three parts in my paper — discussing separately the Founding, Rehabilitative and Modern Eras — and will use three blog posts to set out this story here.  Starting with the Founding Era, here are some of my article's observations:

The distinct nature of sentencing and punishment in the Founding Era adds additional dimensions to the finality story in early American criminal justice systems.  At America’s founding, differentiating between convictions and sentences was largely unknown because a defendant’s conviction and sentence were generally one and the same. As the Supreme Court has explained, during this period the “substantive criminal law tended to be sanction-specific; it prescribed a particular sentence for each offense [and a] judge was meant simply to impose that sentence.”  This era’s “invariable linkage of punishment with crime” meant that there were generally no special sentencing doctrines or court proceedings distinct from the doctrines and procedures that attended traditional criminal trials. The early history of American law, in other words, did not generally distinguish between convictions and sentences for any purpose, let alone with respect to how these two components of a criminal judgment ought to be treated for finality purposes.

[In addition,] until the development of penitentiaries in the mid-nineteenth century, the capital and corporal punishments typically employed in early America were completed upon imposition and thus beyond review or reconsideration once imposed.  After a convicted criminal defendant was executed or banished or pilloried or whipped or placed in the public stocks, there were no practical means or opportunity to review or modify the imposed sanction.  An executed or banished defendant was, obviously, no longer present in the community to seek reconsideration of either his conviction or sentence; a defendant who was whipped or subject to other public corporal punishment could not have reversed or modified the pain or shame he experienced after such a sanction was first imposed.

Prior posts in this series:

May 12, 2014 in Recommended reading, Sentences Reconsidered | Permalink | Comments (7) | TrackBack