May 24, 2014
Is nitrogen gas the best modern execution alternative to lethal injection?
The question in the title of this post is prompted by this Slate commentary by Tom McNichol headlined "Death by Nitrogen; If lethal injection falls out of favor, death penalty states could turn to a new method: nitrogen gas." Here are excerpts:
The Supreme Court ruled in 2008 that Kentucky's three-drug protocol for carrying out lethal injections was constitutional, but there’s no question that the method looks grimly suspect in the wake of Clayton Lockett’s apparently painful, botched execution in Oklahoma last month. Not so long ago, though, this was the method that represented progress. Hanging. Firing squad. The guillotine. The electric chair. The gas chamber. Lethal injection. Every age seems to feature a new and improved method of capital punishment, billed as more efficient and humane. The spectacle of Lockett’s death, and the Supreme Court’s hesitation, shines a spotlight on the latest idea — death by nitrogen.
This new proposed method, known as nitrogen asphyxiation, seals the condemned in an airtight chamber pumped full of nitrogen gas, causing death by a lack of oxygen. Nitrogen gas has yet to be put to the test as a method of capital punishment — no country currently uses it for state-sanctioned executions. But people do die accidentally of nitrogen asphyxiation, and usually never know what hit them. (It’s even possible that death by nitrogen gas is mildly euphoric. Deep-sea divers exposed to an excess of nitrogen develop a narcosis, colorfully known as “raptures of the deep,” similar to drunkenness or nitrous oxide inhalation.)
In late April, Louisiana Department of Corrections Secretary James LeBlanc suggested to a state legislative committee that Louisiana should look into using nitrogen gas as a new method of execution, since lethal injection has become so contentious. “It’s become almost impossible to execute someone,” LeBlanc complained to the Louisiana House Administration of Criminal Justice Committee.
“Nitrogen is the big thing,” LeBlanc told the committee. “It’s a painless way to go. But more time needs to be spent [studying] that.” The committee instructed LeBlanc to do some research on the subject and report back. In the meantime, Louisiana has delayed a pending execution. “I’m not taking anything off the table,” says state Rep. Joseph P. Lopinto III, chairman of the state’s Administration of Criminal Justice Committee. “If someone says nitrogen gas is the way to go, then we can debate that and do it if need be.”
As long as 32 states have capital punishment on the books, there should be a less reliably cruel method of execution than lethal injection. “If we’re going to take a life, then we should do it in the most humane, civilized manner as is possible,” says Lawrence Gist II, an attorney and professor of business and law at Mount St. Mary's College. “Right now, nitrogen is the best of the available options.” Gist, a death penalty opponent, runs a website dedicated to promoting nitrogen asphyxiation for state-sanctioned executions....
Nitrogen gas, unlike the lethal drugs that states have relied on, is widely available. The gas is used extensively in industrial settings, from aerospace to oil and gas production “Lethal injection is just fine if you can get the pentobarbital,” says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a group that favors capital punishment. “But if that’s not available, an alternative like nitrogen gas would work.”
In contrast to lethal injection, no medical expertise would be needed to introduce nitrogen gas into a sealed chamber. The gas chamber itself is technology that has been around since the 1920s. In fact, three states — Arizona, Missouri, and Wyoming — still authorize lethal gas as a method of execution (depending on the choice of the inmate, the date of the execution or sentence or the possibility that lethal injection is held unconstitutional).
The last gas chamber execution in the U.S. was in 1999 — the method fell out of favor because hydrogen cyanide is a poison causing suffering that lasts 10 minutes or longer. Lethal injection, of course, was supposed to be painless and better. What if it’s not? That’s the question the Supreme Court now finally seems to be returning to. The history of capital punishment suggests that as long as there’s a will to kill criminals, someone will come up with an improved way. The new tool in the executioner’s bag may turn out to be nitrogen, a better way to carry out a gruesome task.
If nitrogen gas is really an easy, effective and painless means for killing a condemned inmate, I hope Louisiana and other states might move to this method of execution in the near future. In recent years, the only folks truly well served by lethal injection are those who enjoy last-minute appellate litigation and the prospect of a painful execution. Moreover, as I have often said before, if Congress would have the good sense to care about helping both the feds and states find a better way to carry forth capital justice, perhaps they could consider having a hearing to explore what reasonable modern alternatives to lethal injection might be worth seriously considering.
A few recent related and older posts:
- Ugly Oklahoma execution leading to calls for national moratorium
- Shouldn't Congress be holding hearings to explore federal and state execution methods?
- Tennessee adopts electric chair as back-up execution method
- Poll after ugly execution highlights enduring death penalty support and openness to various execution methods
- A worldly perspective on different execution methods
- Should problems with lethal injection prompt return of other execution methods?
"Sentencing Debate Reveals Divide Among Republicans"
The title of this post is the headline of a recent article by John Gramlich via CQ News (which, I fear, is trapped behind a pay-wall). Here are excerpts:
A Senate proposal to cut mandatory minimum drug sentences in half has exposed a rift between senior, establishment Republicans who stress their law-and-order credentials and junior, more libertarian-minded members of the party who want to shrink the federal role in incarceration.
Sponsored by Sens. Richard J. Durbin, D-Ill., and Mike Lee, R-Utah, the bill (S 1410) is seen as a candidate for floor action following the Memorial Day recess after being approved by the Judiciary Committee, 13-5, in January. But the measure’s prospects are uncertain, with differences among Republicans becoming increasingly apparent. The bill’s six GOP cosponsors include five first-term senators: Lee, Jeff Flake of Arizona, Rand Paul of Kentucky, Ted Cruz of Texas and Ron Johnson of Wisconsin.
Several of those lawmakers have strong tea party support and view the proposal through a libertarian lens. They cast it as a way to cut taxpayer spending on prisons while preserving individual liberties by doing away with tough penalties for low-level, nonviolent drug offenders.
By contrast, the bill’s chief Republican opponents are a trio of establishment Republicans who have long pointed to their “tough on crime” bona fides. They are Majority Whip John Cornyn of Texas, a former state attorney general and judge; Jeff Sessions of Alabama, a former federal prosecutor, and Charles E. Grassley of Iowa, the Judiciary Committee’s ranking member and arguably the Senate’s staunchest defender of mandatory minimum penalties....
Beyond the philosophical disagreement, there also appears to be a generational split among Republicans when it comes to sentencing, said William G. Otis, a law professor at Georgetown University and former special counsel to President George H.W. Bush. The average age of the Republicans who voted for the bill in committee earlier this year was 45, as Slate magazine noted in February. The average age of the Republicans who opposed it was 69.
Otis, who opposes the bill, said older Republican senators may be basing their views of the legislation on their personal recollections of the national crime wave that led to tougher criminal sentencing laws. “For those of us that age, we remember what it was like, because we grew up in the ‘60s and ‘70s and the experience of the crime wave of those two decades is vivid,” Otis said. “My generation remembers that. Rand Paul’s generation, Jeff Flake’s generation and Mike Lee’s generation does not.”...
Paul, who is perhaps the Senate’s most prominent Republican supporter of shortening criminal sentences, so far has been unable to persuade Minority Leader Mitch McConnell, R-Ky., to back the plan....
Laurie A. Rhodebeck, a political science professor at the University of Louisville, said the two senators likely have different constituencies in mind. She noted that Paul may have higher political ambitions and has sought to broaden the appeal of the Republican Party by reaching out to minorities, who often face long criminal sentences for drug crimes. “The way I see the big picture is that Rand Paul seems to be speaking to a national audience right now, rather than a Kentucky audience,” Rhodebeck said. “I assume that’s in keeping with his possible interest in running for the GOP nomination in 2016.”...
To be sure, Democrats may not be united within their own ranks on the bill. Sen. Dianne Feinstein, D-Calif., and Charles E. Schumer, D-N.Y., both have expressed reservations about it, even though they agreed to advance the measure to the full Senate. GOP support for the proposal, meanwhile, is not limited only to first-term senators who are identified with the tea party. Sen. Johnny Isakson, R-Ga., is the sixth GOP cosponsor of the bill and has served in the Senate since 2005.
But the Republican split could be a consequential factor in whether the proposal reaches the floor in an election year in which control of the Senate is at stake. Majority Leader Harry Reid, D-Nev., has indicated he would like to bring up the proposal, but Durbin has suggested that there may be complications in rounding up the votes for passage. A divide among outside conservative advocates may be among the complications.
At a forum this week of conservatives in favor of overhauling the nation’s criminal justice policies, prominent figures including former House Speaker Newt Gingrich, R-Ga., and former National Rifle Association President David Keene made the case for a less punitive approach....
But a group of prominent former federal prosecutors, including two former Republican attorneys general, wrote to Reid and McConnell earlier this month to urge them not to bring the sentencing bill to the floor. Like Grassley and the other Senate Republicans, they warned it would threaten public safety.
I would put a slightly different spin than Bill Otis on the notable fact that the "average age of the Republicans who voted for the [SSA] in committee earlier this year was 45 [while the] average age of the Republicans who opposed it was 69." I would say that supporters of the bill understand that new political and legal realities may call for changing laws passed decades ago, whereas opponents of the bill see little need to update these sentencing laws for modern times.
Some older and recent posts on the "new politics" of sentencing reform:
- Notable talk of sentencing reform at CPAC conference
- "G.O.P. Moving to Ease Its Stance on Sentencing"
- Notable inside-the-Beltway discussion of modern sentencing politics
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Another notable GOP member of Congress advocating for federal sentencing reform
- Conservative group ALEC joins the growing calls for sentencing refom
- Will Tea Party players (and new MMs) be able to get the Smarter Sentencing Act through the House?
- Effective Heritage analysis of federal MMs and statutory reform proposals
- "Holder and Republicans Unite to Soften Sentencing Laws"
- "Right on Crime: The Conservative Case for Reform" officially launches
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- "Conservatives latch onto prison reform"
May 23, 2014
Conceptual considerations for differentiating sentence finality and conviction finality
As explained here, I have been "celebrating" the official publication of my 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. In prior posts (all linked below), I reviewed the first part of my article where I detail (perhaps too briefly) how the forms and functions of different punishment systems throughout US history have provided different frameworks for the legal and practical relationship between conviction finality and sentence finality.
With this post, I will start spotlighting the conceptual, policy, and practical considerations discussed in the second part of my article. Here I seek to detail my view that fundamental differences between trials and sentencings entail that final convictions and final sentences are necessarily and inherently "different legal creatures" which, in turn, should raise questions about any claims that convictions and sentences necessarily must or generally should be given the same kind of treatment for finality purposes. Here is some of my discussion about key conceptual differences between convictions and sentences:
Criminal trials are inherently backward-looking, offense-oriented events, and convictions reflect and represent binary factual determinations about legal guilt. Typically, trial disputes center on particular issues of historical fact; trials are designed and intended to achieve an accurate and specific legal determination that resolves these factual disputes in order to establish formally, for all pertinent legal purposes, whether the defendant in fact committed a criminal offense that calls for society’s condemnation and state punishment. At issue at trial may be whether the defendant was the person who committed a wrongful act, what the defendant’s mental state was, or whether the defendant used a weapon or inflicted a particular injury. Whatever the specific factual issue in dispute, in every criminal trial the advocates and the adjudicators can and should be given all the resources needed — and should be committed to and able to invest all necessary time, energies, and efforts — to marshal and review whatever evidence and information exists concerning the past historical events that are at the heart of the government’s accusations concerning a defendant’s alleged misconduct and wrongdoing. Every effort necessarily should be made to ensure — and every traditional constitutional and evidentiary rule is styled in order to ensure — that a criminal defendant is given a full and fair opportunity to raise a reasonable doubt about the government’s allegations, and trial decision-makers are required to choose from a fixed and limited set of possible trial verdicts as they resolve factual questions concerning guilt or innocence.... [When] the prosecution prevails at trial through a guilty verdict, this outcome of conviction justifiably merits a strong presumption of regularity and accuracy in light of all the time, energies, and efforts marshaled by the participants to get the fundamental guilt determination right initially.
Sentencings, in sharp contrast, involve assessing the future treatment and legal fate of only those offenders convicted after a trial or plea has resolved basic backward-looking factual disputes about guilt and degrees of criminality. No matter which modern punishment philosophies a jurisdiction principally embraces, sentencing determinations will necessarily always incorporate some offender-oriented considerations, many of which involve assessments of a defendant’s personal history and characteristics to make a forward-looking prediction of the offender’s likelihood of committing future crimes. Though sentencing proceedings may often incorporate some backward-looking considerations concerning how and why a particular crime was committed, the focus of the advocates and the adjudicators is always broader, always more multifaceted and multi-dimensional, and always more granular and nuanced than the basic binary issues of historical fact that are resolved at trial and reflected in a criminal conviction. The legal issue at sentencing is no longer simply what happened and who was involved in alleged criminal conduct, but what to do with the convicted criminal in light of his, the victims’, and society’s needs. Sentencing decisionmakers, even within modern determinate sentencing schemes, are presented with a wide array of information about both the offense and the offender, and these decisionmakers are also typically given at least some (and often lots of) discretion to consider an array of possible punishments and sentencing dispositions.
Prior posts in this series:
- Examining "sentence finality" at length in new article and series of posts
- Finality foundations: is it uncontroversial that "conviction finality" and "sentence finality" raise distinct issues?
- Is it fair to read the Constitution as evidence the Framers were not fans of finality?
- Form, function and finality of sentences through history: the Founding Era
- Form, function and finality of sentences through history: the Rehabilitative Era
- Form, function and finality of sentences through history: the Modern Era
"Treating Prisoners With Dignity Can Reduce Crime"
The title of this post is the headline of this notable new National Journal commentary authored by Nicholas Turner and John Wetzel. The piece's subheadline is "In Europe, prisoners work for real wages and even cook for themselves. And when they leave prison, they don't come back." And here are excerpts:
It sounds like the first line of a joke: "Three state corrections teams and some experts who are old hands at visiting prisons go to meet their warden counterparts in Germany and the Netherlands in mid-January to see what they could learn."
But it's a true story — and what high-level delegations from Colorado, Georgia, and Pennsylvania learned through the Vera Institute of Justice's European-American Prison Project is no laughing matter. What we learned, in fact, has serious and timely boots-on-the-ground implications....
For those of us who visited Germany and The Netherlands, the approach to sentencing and the prison philosophy we saw astonished and inspired us. Not only are far fewer people imprisoned, but even those who have committed serious violent crimes serve far shorter sentences.
In these European countries, prisons are organized around the belief that, since virtually all prisoners will return to their communities, it is better to approach their incarceration with conditions as close to "normal" as possible — with the addition of treatment, behavioral interventions, skills training, and needed education — and to remove them from communities for the shortest possible time so that institutional life does not become their norm.
Inmates live in rooms and sleep in beds, not on concrete or steel slabs with thin padding. Inmates have privacy — correctional officers knock before entering — they wear their own clothes, and can decorate their space as they wish. They cook their own meals, are paid for work that they do, and have opportunities to visit family, learn skills, and gain education. Inmates are required to save money to ensure that they are not penniless upon release. There are different expectations for their corrections officers — who are drawn primarily from the ranks of lawyers, social workers, and mental health professionals — to be part of a "therapeutic culture" between staff and offenders, and consequently receive more training and higher pay. There is little to no violence — including in communal kitchens where there are knives and other "dangerous" implements. And their maximum time in any kind of punitive solitary is eight hours.
Prison policies grounded in the belief that prisoners should be treated with dignity were startlingly effective — and have eminently pragmatic implications here at home. The adverse social and economic outcomes for former prisoners in the U.S. are severe — and they are concentrated in communities that are already struggling mightily. With 95 percent of our nation's incarcerated individuals eventually returning home from prison — and 40 percent going right back to prison within three years — we would do well to heed the strategies used in these nations to teach prisoners how to be good and productive citizens that can rebuild their communities....
Are there challenges to wholesale reform? Of course. Money. Infrastructure. Strains of racial division borne of our history and heterogeneity. And, cultural differences especially as relates to violence may mean that some European practices may not translate smoothly to the U.S. Yet we are at a moment of potential for significant shifts. It will require legislation and policy change, including rethinking sentencing for lower offenses and reducing the time for those who must be in prison. But the notion that we should strive to create an environment within our prisons conducive to our goal — to return good citizens to our communities — is a challenge we can and must meet.
Tennessee adopts electric chair as back-up execution method
As reported in this AP article, "Tennessee has decided to bring back the electric chair." Here are the details:
Republican Gov. Bill Haslam on Thursday signed a bill into law allowing the state to electrocute death row inmates in the event the state is unable to obtain drugs used for lethal injections. Tennessee lawmakers overwhelmingly passed the electric chair legislation in April, with the Senate voting 23-3 and the House 68-13 in favor of the bill.
Richard Dieter, the executive director of the Death Penalty Information Center, said Tennessee is the first state to enact a law to reintroduce the electric chair without giving prisoners an option. "There are states that allow inmates to choose, but it is a very different matter for a state to impose a method like electrocution," he said. "No other state has gone so far."
Dieter said he expects legal challenges to arise if the state decides to go through with an electrocution, both in terms of whether the state could prove that lethal injection drugs were not obtainable and on the grounds of constitutional protections against cruel and unusual punishment....
Republican state Sen. Ken Yager, a main sponsor of the electric chair measure, said in a recent interview that he introduced the bill because of "a real concern that we could find ourselves in a position that if the chemicals were unavailable to us that we would not be able to carry out the sentence."
A Vanderbilt University poll released this week found that 56 percent of registered voters in Tennessee support the use of the electric chair, while 37 percent are against it. Previous Tennessee law gave inmates who committed crimes before 1999 the choice of whether they wanted to die by electric chair or lethal injection. The last inmate to be electrocuted was Daryl Holton, a Gulf War veteran who killed his three sons and a stepdaughter with a high-powered rifle in Shelbyville garage in 1997. He requested the electric chair in 2007.
A provision to apply the change to prisoners already sentenced to death has also raised a debate among legal experts. Nashville criminal defense attorney David Raybin, who helped draft Tennessee's death penalty law nearly 40 years ago, has said lawmakers may change the method of execution but they cannot make that change retroactive. To do so would be unconstitutional, he said.
Supporters of the bill requested a legal opinion from state Attorney General Bob Cooper, who said the law would pass constitutional muster, but there was no guarantee it would not be challenged in court.... The Supreme Court has never declared a method of execution unconstitutional on the grounds that it is cruel and unusual. It upheld the firing squad in 1879, the electric chair in 1890 and lethal injection in 2008.
May 22, 2014
Newt Gingrich and Van Jones say "Prison system is failing America"
Not only has CNN brought together a 2012 Republican presidential candidate and a former advisory to President Barack Obama as co-hosts of "Crossfire," but it now has published this interesting joint commentary under the headline "Prison system is failing America." Here are excerpts from an interesting opinion piece that goes a bit beyond just the usual standard points about the various problems with modern mass incarceration:
Thirty-eight U.S. states are home to fewer people than live under the corrections system in this country. There are about as many people behind bars as live in Chicago. That's one in every 108 Americans. One in 35 are under some form of correctional supervision.
Among African Americans, the numbers are even more horrifying. According to the NAACP, one in three black males born in the United States today is likely to spend time in prison at some point in his life. That's compared with one in six Hispanic males or one in 25 white males.
It would be hard to overstate the scale of this tragedy. For a nation that loves freedom and cherishes our rights to life, liberty and the pursuit of happiness, the situation should be intolerable. It is destroying lives and communities.
Our corrections system is not correcting. Within three years of being released from prison, nearly half of prisoners are convicted of another crime with one out of every four ending up back in prison.
When a typical bureaucracy does its job this badly, it wastes money, time and paper. The corrections bureaucracy, in failing to correct the large majority of inmates in its charge, not only wastes money but also wastes lives, families and entire cities.
The current system is broken beyond repair. It's a human, social and financial disaster. We need a radical strategy of replacement of these huge bureaucracies that lack any meaningful oversight.... We need to rethink prisons, parole and probation for the 21st century.
At a time when high-quality education is increasingly digital and in many cases free, shouldn't we provide opportunities for prisoners to learn skills that will enable them to support themselves as upstanding citizens when they are released?
We know that inmates who earn a GED while incarcerated are substantially less likely to return to prison. There are readily available online tools that our prisons could use extensively for a minimal cost to increase the number of inmates receiving valuable education and skills training.
Khan Academy has replicated virtually the entire K-12 curriculum online for free. Udacity and other online education sites offer introductions to software programming for free. Our prisons should be using tools such as these extensively. They offer the opportunity to interrupt the cycle of poverty, a failing education system, crime and incarceration....
Technology should revolutionize more than just the prisons' rehabilitation programs. It should completely transform the corrections and criminal justice systems.... [T]echnology should enable much more effective probation and community supervision, especially new options that could allow nonviolent offenders to remain with their families living productive lives under an appropriate level of restriction.
Almost any activity to which we might sentence low-level offenders --apprenticeship programs, school, literacy or computer science boot camps, community service -- would be a better use of taxpayer dollars than sticking them idle in prison with hardened criminals. Unfortunately, the current corrections bureaucracy has embraced none of this innovation -- in part because it is captive to the prison guards' unions or the private prison lobby, and in part because it lacks any incentives or sufficient competition based on the right metrics....
Years ago, Van proposed that states give wardens a financial incentive to cut the rates of recidivism for inmates leaving their prisons. More than 65% of inmates in California return to prison within three years of their release, where they will again cost taxpayers an average of $47,000 each year.
Surely it is worth giving wardens a substantial portion of the savings for every inmate that leaves their prison and does not re-offend. Such incentives would spark dramatically more innovation and investment in rehabilitation, job training and job placement programs for prisoners. That would be a revolutionary change from prison administrators' current incentives, which are often to keep as many people in custody as possible.
Finally, we need real market competition that rewards success at every step of the process -- in probation and parole offices as well as prisons. That doesn't just mean privatizing prisons or rewarding probation services with the same failed metrics. We need competition of methods and ideas based on the right criteria: When we send prisoners home, do they have the skills to reintegrate in their communities as working, law-abiding citizens? Or do they end up coming back?...
We should start by opening our prisons and probation offices to innovation to save money, achieve better outcomes for individuals and ensure better safety for us all.
May 22, 2014 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Technocorrections, Who Sentences? | Permalink | Comments (6) | TrackBack
Has the ugly execution in Oklahoma succeeded in slowing US machineries of death?
The question in the title of this post is prompted by the notable new reality that, after Missouri's effort to carry out an execution on Wednesday was ultimately blocked by the Supreme Court (CNN story here), it now appears that there will not be an execution in the United States during the month of May. In addition, as detailed in this listing from the Death Penalty Information Center, it appears that only a handful of serious execution dates are scheduled for the coming summer months.
Of course, a host of factors both legal and extra-legal explain why in recent years the US has averaged only three to four executions a month, whereas 15 years ago the US averaged more than twice as many executions. Notably, though, in 2014 the pace of executions throughout the United States had ticked up with 20 executions completed in five different states over the first four months of the year. But in the wake of Oklahoma making very messy the execution of Clayton Lockett, it now seems that a set of various factors and actors are gumming up the works of machineries of death throughout the United States.
I suspect Texas and perhaps a few other states without a history of problematic executions will be able to carry out death sentences in the months ahead. So I do not think it is right to suggest that the ugly Oklahoma execution created a de facto moratorium. Still, it seems more than a coincidence that the US in 2014 was on pace for 60 executions for the first time in a decade until Oklahoma messed up and now we are on track to go perhaps a few months with very few executions.
A few recent related posts:
- First of two planned Oklahoma executions botched, though condemned dies of heart attack after getting execution drugs
- Ugly Oklahoma execution leading to calls for national moratorium
- Sampling of reactions and commentary in wake of Oklahoma's execution problems
- New details emerge concerning ugly Oklahoma execution
- Other than perhaps in Oklahoma, will this week's ugly execution change any death penalty dynamics?
- Shouldn't Congress be holding hearings to explore federal and state execution methods?
- Poll after ugly execution highlights enduring death penalty support and openness to various execution methods
"Remodeling American Sentencing: A Blueprint for Moving Past Mass Incarceration"
The title of this post is the title of this notable new piece by Michael Tonry now available via SSRN. Here is the abstract:
When and if the will to roll back mass incarceration and create just, fair, and effective sentencing systems becomes manifest, the way forward is clear:
-First, three-strikes, mandatory minimum sentence, and comparable laws should be repealed.
-Second, any three-strikes, mandatory minimum sentence, or similar laws that are not repealed should be radically narrowed in scope and severity.
-Third, any three-strikes, mandatory minimum sentence, and similar laws that are not repealed should be changed to include provisions authorizing judges to impose some other sentence “in the interest of justice.”
-Fourth, LWOP laws should be repealed, or radically narrowed.
-Fifth, truth-in-sentencing laws should be repealed.
-Sixth, criminal codes should be amended to set substantially lower maximum sentences scaled to the seriousness of crimes.
-Seventh, every state should establish a sentencing commission and promulgate a presumptive sentencing guidelines system.
-Eighth, any state that does not establish an effective set of presumptive sentencing guidelines should establish a system of parole guidelines.
-Ninth, every state and the federal government should reduce its combined rate of jail and prison confinement to half its 2014 level by 2020.
-Tenth, every state should enact legislation making all prisoners serving fixed terms longer than five years, or indeterminate terms, eligible for consideration for release at the expiration of five years, and all prisoners aged 35 or over eligible for consideration for release after serving three years.
These proposals are evidence-based, and mostly technocratic. Those calling for prison population targets and reducing the lengths of sentences being served may appear bold to some. Relative to the problems they address they are modest and partial. Reducing rates of imprisonment by half in the United States, a country with comparatively low crime rates, to a level that will remain 3 to 3.5 times those of other developed Western countries, can hardly be seen as overly ambitious.
May 21, 2014
Should I be hopeful Amy can now recover more restitution after major child porn bust in NYC?
The question in the title of this post is my (perhaps weak) effort to put some kind of positive spin on this depressing new story from CNN headlined "Cop, rabbi, scoutmaster among arrests in child porn bust." Here are just some of the ugly basics:
They are people children are supposed to trust: A New York Police Department officer, a Fire Department of New York paramedic, a rabbi and a scoutmaster were among more than 70 people arrested in a major child porn bust, authorities said Wednesday.
One of those arrested -- a supervisor with the Transportation Security Administration -- allegedly traveled to the Dominican Republic to have sex with children, a law enforcement official said. He allegedly made more than 50 trips there.
The investigation, involving agents from U.S. Immigration and Customs Enforcement as well as New York authorities, began as part of an undercover operation into peer-to-peer networks, authorities told reporters Wednesday. The suspects, who do not appear to know one another, were able to search files using graphic terms and descriptions. Software continuously scanned files and automatically uploaded images to personal computers, laptops and mobile phones.
Special Agent in Charge James Hayes, head of Homeland Security Investigations New York, called the arrests the largest enforcement operation in New York "targeting predators (who) possess, produce or distribute sexually explicit images of children." The activity, he said, has "reached epidemic proportions."
"The backgrounds of many of the individuals ... is shocking," Hayes said. "These defendants come from all walks of life ... This operation puts the lie to the classic stereotypical profile that child predators are nothing more than unemployed drifters. Many of the defendants are, in fact, well-educated and successful in private and professional lives. They work as registered nurses, paramedics, caretakers for mentally ill adults, computer programers and architects."
The continuing operation resulted in 71 arrests -- including one woman -- and the seizure of nearly 600 devices, including desktop and laptop computers, tablets, smartphones and thumb drives with tens of thousands of sexually explicit images and videos of children, Hayes said.
The pornographic images of children were shared at no charge, authorities said. About a third of the suspects remain in custody, and the others were released on bonds ranging from $30,000 to $500,000. Hayes said the January arrest of Brian Fanelli, chief of the Mount Pleasant Police Department in upstate Valhalla, New York, on child pornography violations helped lead to the other defendants.
A few months ago, I asked in the title of this post a serious question that comes to mind now again: "Just how many prominent, successful men are child porn fiends?". As the title of this post suggests, following the Supreme Court's messy "split-the-difference" approach to child porn restitution in its recent Paroline ruling (basis here), I am hoping a silver lining to this dark cloud might be that CP crimes committed too often by persons "well-educated and successful in private and professional lives" might now mean more restitution getting paid to the unfortunate victims of these crimes.
A few (of many) prior posts on Paroline and child porn issues:
- SCOTUS splits the difference for child porn restitution awards in Paroline
- Will Congress fix (quickly? ever? wisely?) the "puzzle of paying Amy" after Paroline?
- Fascinating NY Times magazine cover story on child porn victims and restitution
- "Pricing Amy: Should Those Who Download Child Pornography Pay the Victims?"
- Explaining why I am rooting so hard for "Amy" in Paroline
- Just how many prominent, successful men are child porn fiends?
May 21, 2014 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (11) | TrackBack
Fascinating exploration of modern data on modern mass incarceration
If you like data and like thinking hard about what to think about data about modern mass incarceration (and who doesn't), then you will be sure to like this interesting new posting authored by Andrew Cohen and Oliver Roeder at the Brennan Center for Justice headlined "Way Too Early to Declare Victory in War against Mass Incarceration." Here are excerpts (with some links retained) from an interesting and important bit of number crunching:
At The Week Monday, Ryan Cooper summarized some dramatic statistical work about mass incarceration undertaken by Keith Humphreys, the Stanford University professor and former Obama administration senior advisor for drug policy. The headline of the piece, “The plummeting U.S. prison admission rate, in one stunning chart,” was accompanied by Cooper’s pronouncement that “whatever the reason” for the drop it “is certainly great news.” Some of the same optimism was expressed over the weekend, in The New York Times Book Review section, by David Cole, the esteemed Georgetown law professor who has written so eloquently recently about many of the greatest injustices in American law. Reviewing Columbia University professor Robert Ferguson’s excellent book, “Inferno,” Cole proclaimed that “we may be on our way out of the inferno” and that “it is just possible that we have reached a tipping point” in the fight against mass incarceration.
Would that it were so. It is far too early, as a matter of law, of policy, and of fact, to be talking about a “plummeting” prison rate in the United States or to be declaring that the end is in sight in the war to change the nation’s disastrous incarceration policies. There is still far too much to do, far too many onerous laws and policies to change, too many hearts and minds to reform, too many families that would have to be reunited, before anyone could say that any sort of “tipping point” has been spotted, let alone reached. So, to respond to Humphreys’ work, we asked Oliver Roeder, a resident economist at the Brennan Center for Justice, to crunch the numbers with a little bit more context and perspective. What follows below ought to shatter the myth that America has turned a corner on mass incarceration. The truth is that many states continue to experience more incarceration than before, the drop in national incarceration rates is far more modest than Humphreys suggests, and the trend toward reform could easily stop or turn back around on itself....
[T]he incarceration rate is decreasing, but no, not by much. It’s down 5.5 percent since its 2007 peak. Since 2001, it’s up 1.6 percent. An unscientific word for this trend would be “flat.”
As for individual states’ incarceration rates, experiences over the past decade have varied greatly.... California, New Jersey, and New York have dipped over 20 percent from their 2001 levels, while West Virginia, Minnesota, and Kentucky have seen over 30 percent increases.
Incarceration is a state-specific issue in other senses as well. Clearly the trends can vary dramatically, but so can the rates themselves. In 2012, Louisiana’s incarceration rate was 873, while Maine’s was 159....
So what’s the story? Well one thing it isn’t is crime. There is a body of evidence that indicates that crime doesn’t really affect incarceration. Incarceration, rather, is a policy choice, largely independent of the actual level of crime in the world. (The incarceration rate is not a result of one single policy choice, of course, but rather is a function of many policy choices which compose essentially our willingness or propensity to incarcerate.) Admissions and thus incarceration were increasing because of increased willingness to incarcerate, or reliance on incarceration. I don’t have a good sense as to why admissions and incarceration have been dipping lately, but it does seem to be driven by a minority of (typically large) states.
"[A]nybody who’s a limited-government conservative can’t ignore the decades-long record of all of this money wasted and how ineffectual [the drug war has] been"
The quote that makes up the title of this post is one from this interesting and very lengthy recent profile of Michele Malkin from the Denver Post. The piece is headlined "Michelle Malkin: Conservative hero and marijuana advocate," and here are some excerpts:
Michelle Malkin is one of the most revered conservative voices in America, and yet the author, columnist and commentator also actively supports medical and recreational marijuana.
“The war on drugs has been a failure. Prohibition was also a failure,” Malkin said recently, drinking coffee at a diner near her Colorado Springs home. “And pointing out that mainstream hospitals are administering these far more pernicious narcotics to terminally ill patients undercuts this whole idea that marijuana is this dangerous gateway.”
Surprised to hear such progressive talk coming from a conservative? Join the club. If you’re not surprised you’ve likely been reading Malkin’s missives for years. The pro-marijuana conservative is a growing segment in the U.S. political spectrum, something we’ll see more of in the November elections. Malkin’s intensely personal story — dating from her time at the Seattle Times in the ‘90s to her mother-in-law’s current struggle with metastatic melanoma — is a potent example of why these two strange bedfellows are becoming increasingly familiar....
But Malkin didn’t always feel that way. When she left the LA Daily News for The Seattle Times in the mid-90s, she was as anti-marijuana as most Republicans were at that time. But after a chance debate with the late Seattle medical marijuana advocate Ralph Seeley, who died in 1998 of a rare bone cancer after suing the state to allow marijuana to be prescribed medically, she changed her mind on the issue. Seeley’s arguments were legitimate, Malkin said, and less than a year after his death Washington voters approved medical marijuana.
“People always ask me, ‘When have you ever changed your mind?’ I tell them, ‘Ralph Seeley changed my mind’,” said Malkin.... “I was on a local public TV debate, and at the time I was a fairly orthodox law-and-order, pro-war on drugs conservative columnist. I would accept at face value anything Bill Bennett had claimed about the war of drugs.”
“Of course it’s been an abysmal trillion-dollar failure, and anybody who’s a limited-government conservative can’t ignore the decades-long record of all of this money wasted and how ineffectual it’s been. But going back to the debate with Ralph Seeley: We were on the opposite side of the debate, him in his wheelchair and he had chordoma, an awful degenerative cancer in the spine. He was paralyzed with a trach. He was so articulate, and you couldn’t argue with his facts.”
Just like that Malkin — who jokingly refers to herself on occasion as a “right-wing nut-job” — switched over to the pro-marijuana side of the debate. And nearly two decades after her initial change of heart readers came across her recent “My trip to the pot shop” column on March 25, 2014....
There’s a philosophical and literary hook in Colorado’s mountainous landscape for Malkin, too. “For Libertarians, of course, Colorado is a special place because it’s Galt’s Gulch, in the Ayn Rand novels,” said Malkin. “The appeal is it’s the last, best sanctuary of the bulwark against the meddling state. And it’s real — it’s not just a fictional sanctuary. It’s real for many people, and those stories of those families moving here from New Jersey underscores that, and it resonates with me because that’s how we feel about Colorado.”...
Marisol Therapeutics is a recreational pot shop in Pueblo West, just 47 miles from Uncle Sam’s Pancake House — and Malkin’s nearby home. (Colorado Springs doesn’t allow recreational marijuana shops.) The shopping experience, from the initial decision to head south to the storm of comments that followed in the wake of the article, was a historic one for the Malkin family.
But what will Michelle remember the most from her first time buying legal weed? “What an incredible experience it was to walk into the shop and have the understanding and compassion of somebody in the business of providing healing,” Michelle said. “A lot of people from out of state, New York or DC, would parachute into our state and sneer at the so-called ‘medical veneer’ that a lot of these shops have. But there’s no denying the reality that these places provide the services that people want and need, and that was the upshot of the column.”
The column created a whirlwind of activity on Malkin’s website, both positive and negative. But the takeaways steeled her resolve and gave her a new found perspective. “When I was at the shop, I told my husband that the clerk seemed like a Libertarian to me,” Malkin said. “What were they doing? They were complaining about the regulations, the bureaucracy, the taxes. Here’s your natural outreach into a nontraditional constituency, right?”
Malkin splits from party-line mob mentality in that she doesn’t believe that marijuana is a gateway drug — “but speaking of gateway drugs, I think this is a gateway policy issue. It’s a gateway for getting people to start moving beyond traditional right and left politics. And I think that’s a good thing.”...
On protecting the Second Amendment and decriminalizing drugs: “There has been such an infantilization of citizens by the nanny state that it becomes easier and easier to swallow rationalizing increasing the power of government as a way to protect people from both social harm and self harm. And for people who think about liberty and how the power of the state should be limited, it bothers me greatly that we’ve redefined what social harm is and that there’s been this encroachment on people’s ability to do whatever they want and in their own homes as long as it doesn’t impose social harm outside of your home. As long as I’ve been thinking about these issues, dating back to my days in Seattle, it’s always seemed to me that there are similar arguments for fiercely protecting Second Amendment rights as there are for decriminalizing drugs, not just for medical marijuana but for recreational as well. And I have to say that my reservations are greater with regard to recreational marijuana, but the very simple point of my column was how grateful we were that the people of Colorado passed Amendment 64 because it provided an opportunity for us to circumvent the bureaucracy because we could just drop by and walk in. I’m absolutely against repealing it.”
On finding capitalism alive and well in the legal pot industry: “We were so sheepish at the pot shop. I’m sure we looked so goofy saying, ‘Are there brownies?’ And she whipped out the cheddar crackers. And for me, as someone who believes in capitalism, I was just amazed at how many different companies are involved in producing these different products. From the bakery to those (vape) pen things, some of it was a bit cliché — they had the Tommy Chong banner up top, the big ’70s heavy metal pounding when you went into the recreational side, but it also struck me how we felt safe. There were multiple ID checks and serious guards at the door — and contrast that with god knows what we would have had to do if we tried obtaining it on the streets.”...
On being pro-marijuana, cautiously: “While some people on the pro side who don’t ever want you to acknowledge that there are costs and consequences and abuses, I don’t have any problem with saying, ‘Of course we should be worried about what else can happen here.’ Of course I tell my kids, ‘Don’t you mess with this,’ as I would with any illicit, addictive substance. It’s not a weakness that there are always those concerns, and that’s why I stress the need for the cultural guardrails. It bothers me to see Snoop Doggy Dogg and this big haze around all these kids — just how irresponsible that is. And to the extent that the movement has grown up, it’s a tribute to people like Ralph Seeley, for whom it was a matter of individual liberty and principal all along. There will always be people on either side who exploit the extremes.
Just a few recent and older related posts:
- Supporting pot prohibition as divining rod pointing toward social conservatives and away from fiscal conservatives
- "Marijuana industry finds unlikely new allies in conservatives"
- "Nearly three-quarters of Americans (72%) say that, in general, government efforts to enforce marijuana laws cost more than they are worth"
- If you like paternalism and hate permissive freedoms and big business...
- Terrific (though incomplete) analysis of the state and future of modern pot politic
- "The most interesting part of [Rand Paul's] speech was his widely anticipated defense of drug law reform."
- NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)
- GOP leaders now getting what Mitt missed: drug war reform may make good politics (as well as being principled) for small-government conservatives
"Guilty and Charged": NPR investigation of charges and fees imposed on criminal defendants
As detailed in this series of new pieces, National Public Radio has conducted an in-depth investigation of how states charging criminal defendants and convicted offenders a range of fees. The start of this lead piece for the special series, headlined "As Court Fees Rise, The Poor Are Paying The Price," provides this description of the NPR efforts and findings:
In Augusta, Ga., a judge sentenced Tom Barrett to 12 months after he stole a can of beer worth less than $2. In Ionia, Mich., 19-year-old Kyle Dewitt caught a fish out of season; then a judge sentenced him to three days in jail.
In Grand Rapids, Mich., Stephen Papa, a homeless Iraq War veteran, spent 22 days in jail, not for what he calls his "embarrassing behavior" after he got drunk with friends and climbed into an abandoned building, but because he had only $25 the day he went to court.
The common thread in these cases, and scores more like them, is the jail time wasn't punishment for the crime, but for the failure to pay the increasing fines and fees associated with the criminal justice system.
A yearlong NPR investigation found that the costs of the criminal justice system in the United States are paid increasingly by the defendants and offenders. It's a practice that causes the poor to face harsher treatment than others who commit identical crimes and can afford to pay. Some judges and politicians fear the trend has gone too far.
A state-by-state survey conducted by NPR found that defendants are charged for many government services that were once free, including those that are constitutionally required. For example:
- In at least 43 states and the District of Columbia, defendants can be billed for a public defender.
- In at least 41 states, inmates can be charged room and board for jail and prison stays.
- In at least 44 states, offenders can get billed for their own probation and parole supervision.
- And in all states except Hawaii, and the District of Columbia, there's a fee for the electronic monitoring devices defendants and offenders are ordered to wear.
These fees — which can add up to hundreds or even thousands of dollars — get charged at every step of the system, from the courtroom, to jail, to probation. Defendants and offenders pay for their own arrest warrants, their court-ordered drug and alcohol-abuse treatment and to have their DNA samples collected. They are billed when courts need to modernize their computers. In Washington state, for example, they even get charged a fee for a jury trial — with a 12-person jury costing $250, twice the fee for a six-person jury.
There are already six stories assembled on this topic available here under the special series heading "Guilty and Charged." Particularly valuable for researchers may be this chart reporting the results of NPR's state-by-state survey of common fees charged to defendants.
Two new juve justice papers from The Sentencing Project
- Juvenile Life Without Parole: An Overview -- Recent Supreme Court rulings have banned the use of mandatory life without parole for juveniles, as well as in non-homicide cases. Still, the United States stands alone as the only nation that sentences people to life without parole for crimes committed before turning 18. This briefing paper documents the key legal cases in this area, as well as the impact on fiscal costs, racial disparities, and prospects for reform.
- Disproportionate Minority Contact in the Juvenile Justice System -- Despite declining numbers of juveniles held in confinement nationally, racial disparities in the juvenile justice system remain a persistent problem. This briefing paper provides an overview of disparity trends in recent decades, and an assessment of how policy and practice decisions contribute to racial disparities.
Eighth Circuit and SCOTUS staying (and then later unstaying?) Missouri's execution plans
As detailed in this AP story, now headlined "Missouri Inmate's Hopes Rest With Supreme Court," the federal judiciary has been getting in the way of Missouri's plans to execute a murderer today. Here are the details:
A Missouri inmate with a rare condition that affects the blood vessels was handed a reprieve less than two hours before his scheduled execution, but the state may end up killing him later Wednesday if the U.S. Supreme Court says it can.
Russell Bucklew was scheduled to be executed at 12:01 a.m. Wednesday for the 1996 killing of a romantic rival. He would have been the first U.S. inmate put to death since last month's botched execution in Oklahoma, in which the prisoner's vein collapsed while the lethal drugs were being administered.
Bucklew, 46, has a condition that causes weakened and malformed veins, and his attorneys say this and the secrecy surrounding the state's lethal injection drug combine to make for an unacceptably high chance of something going wrong during his execution.
After an 8th U.S. Circuit Court of Appeals panel suspended the execution Tuesday, only to be overruled hours later by the full court, Supreme Court Justice Samuel Alito issued his own stay, setting the stage for the full high court to weigh the appeal. If the Supreme Court rejects the appeal, Missouri would have until midnight to carry out the execution.
Mike O'Connell, a spokesman for the Missouri Department of Corrections, cautioned against reading too much into Alito's intervention. Alito handles emergency matters for states covered by the 8th Circuit, and two of the six inmates Missouri has executed since switching to a single-drug system in November had appeals that stretched well into the state's 24-hour execution window before the Supreme Court allowed the state to proceed. One of them was executed nearly 23 hours after he originally was scheduled to die....
Bucklew won't be getting help from Missouri Gov. Jay Nixon, a Democrat and death-penalty proponent who rejected Bucklew's clemency request late Tuesday....
Missouri switched from a three-drug protocol to the single drug pentobarbital late last year. None of the six inmates executed since Missouri made the change has shown outward signs of pain or suffering.
May 20, 2014
Texas teen facing 5-to-life for selling pot brownies(!) highlights prosecutorial sentencing powers
A drug war and severe sentencing story making the media rounds today emerged via this recent local report headlined "Texas man facing possible life sentence for pot brownies." Here are the basics (which have already been sensationalized a bit in some media accounts I have seen):
A Texas man accused of making and selling marijuana brownies is facing up to life in prison if convicted. That’s because officials in Round Rock have charged him with a first-degree felony.
It’s a move that the man’s family and attorney outraged. “It’s outrageous. It’s crazy. I don’t understand it,” Joe Lavoro, the man’s father said. Like many familiar with the case, Joe does not understand why his son is in so much legal trouble....
The 19-year-old is accused of making and selling pot brownies. He’s charged with a first degree felony. “Five years to life? I’m sorry. I’m a law abiding citizen. I’m a conservative. I love my country. I’m a Vietnam veteran, but I’ll be ****ed. This is wrong. This is ***n wrong!” the father said.
Lavoro’s lawyer agrees. “I was outraged. I’ve been doing this 22 years as a lawyer and I’ve got 10 years as a police officer and I’ve never seen anything like this before,” Jack Holmes, Lavoro’s attorney said.
The former high school football player has a clean record. The charge is so severe because the recipe includes hash oil. That allows the state to use the sugar, cocoa, butter and other ingredients to determine the weight of the drugs. “They’ve weighed baked goods in this case. It ought to be a misdemeanor,” Holmes said.
KEYE reached out to the district attorney to ask how they’re going to prosecute the case. Our call has not yet been returned....
Jacob’s father wants what’s right. “If he did something wrong, he should be punished but to the extent that makes sense. This is illogical. I’m really upset, and I’m frightened, I’m frightened for my son,” Joe said.
Jacob Lavoro's father is right to be frightened, in large part because it would seem that his son's fate is now almost entirely in the hands of local prosecutors. Though I do not know all the ins and outs of Texas drug laws, I assume that the local prosecutors can (and probably will) ultimately allow Lavoro to plead to some less charge rather than go to trial on a first-degree felony charge carrying a 5 to life sentence. But the fact that such a severe charge with a big-time sentence is even on the table all but ensures that the local prosecutor can extract a plea on whatever terms strikes his fancy.
May 20, 2014 in Drug Offense Sentencing, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10) | TrackBack
More useful discussion of the (under-discussed) lead-crime-rate connections
A helpful reader alerted me to this helpful and lengthy new article at the Juvenile Justice Information Exchange headlined "Is Lead Exposure the Secret to the Rapid Rise and Fantastic Fall of the Juvenile Crime Rate?". Here are excerpts from a piece worthy of a full read (and with lots of helpful links to the research discussed):
For the juvenile justice field, there is no larger question. It’s the elephant in the room, the great mystery, the trend that has changed everything — and seemingly without explanation. Why have juvenile crime rates, once predicted to rise inexorably, instead been falling for two decades? Falling... and falling... and falling.
What if the answer was readily available? What if it mostly boiled down to a single element, hiding in plain sight, and we just refused to notice? Well, compelling evidence suggests that much or most of the fluctuation in juvenile crime rates does boil down to a single element — a chemical element.
The element is lead, and a powerful body of research indicates that the recent declines in juvenile offending rates, like the rise in juvenile crime rates that preceded them, stem in large part from changes in children’s exposure to lead paint and exhaust from leaded gasoline. The idea may sound crazy, “like a bad science fiction plot,” quips Rick Nevin, one of the leading researchers documenting the link between lead exposure and crime. But the data don’t lie and here’s what they say.
For centuries it has been clear that lead is a potent poison. At extreme concentrations, lead poisoning causes anemia, blindness, renal failure, convulsions, abdominal spasms, insomnia, hallucinations, chronic fatigue and, ultimately, death. But only in the past four decades have researchers learned that lead exposure can severely damage the cognitive development of children, even at modest levels that produce no physical symptoms. And only through modern scanning technology have we learned that the lead molecule is perfectly designed to cripple young minds in ways that not only lower IQ, but also damage the very parts of the brain that oversee aggression, self-regulation, attention and impulse control.
As Kim Cecil, director of epidemiology and biostatistics at the University of Cincinnati College of Medicine, recently explained to the Chemical & Engineering News, “These are the parts of the brain that say, ‘Ooh, I’ve learned from before that I shouldn’t steal that, or if I do this, then the consequences are that.’” Even moderate levels of lead in the bloodstream of an infant or toddler significantly increase the odds that he will suffer behavioral disorders in childhood, and will engage in delinquency and criminal behavior later on. (Lead seems to affect boys more than girls.) A study published in 2008 tracked 250 children born in low-income Cincinnati neighborhoods between 1979 and 2004. It found that children with elevated levels of lead exposure (either in utero, or in early childhood) were significantly more likely to be arrested for both violent and nonviolent crimes than children with lower lead exposure. Earlier studies in Philadelphia and Pittsburgh also found a significant correlation between early childhood lead exposure and later conduct problems....
[T]he strength and consistency of the findings linking lead exposure and crime trends, plus the wealth of corroborating evidence from other disciplines (such as brain imaging studies and longitudinal studies of small population samples in selected cities) creates what Kevin Drum, a widely-cited blogger and journalist who has written extensively on the lead-crime connection, calls “an astonishing body of evidence.”...
“We now have studies at the international level, the national level, the state level, the city level, and even the individual level,” writes Drum. “Groups of children have been followed from the womb to adulthood, and higher childhood blood lead levels are consistently associated with higher adult arrest rates for violent crimes. All of these studies tell the same story: Gasoline lead is responsible for a good share of the rise and fall of violent crime over the past half century.”
By this point, readers of this column may be wondering: If the evidence linking lead exposure and crime is so strong, why haven’t we heard more about it? The primary reason is that the research has been largely ignored by academics. In 2008, a 250-page report on U.S. crime trends by the National Academies of Science included only one paragraph about lead exposure, drawing no conclusions. Late last year, a National Academies roundtable on crime trends did hold a session on lead exposure.
But even in that day’s session, the opening presentation — delivered by the renowned British criminologist, David Farrington — did not include a word about lead exposure. His talk on “Individual Differences in Antisocial Behavior, Delinquency, and Crime” discussed unemployment, parenting, poverty, family size, peer influences, substance abuse, and even an individual’s resting heart rate — none of which has seen changes in recent times consistent with the larger rise and fall in crime rates. Farrington said nothing about the introduction and subsequent removal of massive amounts of a toxic substance with a powerful known link to subsequent delinquency and criminality.
Drum suggests that the lack of attention to lead exposure is natural, given that the theory is new and unproven. Indeed, some critics have raised legitimate questions about the research — citing the small number of studies, questioning methodology and suggesting that other factors beyond lead (such as demographics, shifting drug markets and more) may also play an important role in determining crime rates over time....
Another factor behind the inattention to the lead exposure research is that most of the studies thus far have been conducted by economists and public health scholars, not criminologists, and the key papers have been published in environmental journals rather than criminology publications. Nevin also sees an element of self-interest: “Everyone has their own theory that they hold dear about why the crime decline has occurred,” he says. “There are a whole lot of people ... on both sides of the political spectrum who want to claim credit for this and don’t really like hearing about this unrelated powerful force.”...
[T]he lead data suggest that perhaps the most important thing our nation can do to reduce juvenile crime — and also to boost youth success in general — has nothing to do with juvenile courts or corrections systems. Maybe our first priority should be lead abatement — finishing the job by removing the last remnants of our tragic 20th century fetish with this terrible toxin.
Some recent related posts:
- Should we thank unleaded gas and the EPA for the great modern crime decline?
- Effective Washington Post commentary talks up great (and still puzzling) crime decline
- Do lead exposure realities continue to best explain modern crime-rate realities?:
- Uh-oh: BJS reporting significant spike up in violent and property crime for 2012
- FBI releases 2012 crime statistics showing stability in relatively low crime rates
- New National Academy of Sciences effort seeking to unpack the crime decline
"Save money, reduce crime: Alternative sentencing works, so Ohio needs to do more of it"
The title of this post is the headline of this notable lead editorial appearing in today's Columbus Dispatch. The Dispatch has a reputation as a pretty conservative paper (e.g., it has endorsed only GOP Prez candidates for nearly a century), so I see this editorial as further significant proof that more and more traditional conservative voices are seeing the value of (and now actively making the case for) sentencing and prison reforms. Here are excerpts from this editorial:
Ohio has made progress in easing prison crowding by offering alternatives for nonviolent offenders. But a look at the numbers shows that more can be done. The good news is, Ohio already knows what works: putting nonviolent felons in programs that make them better prepared to lead crime-free lives rather than in expensive prisons with hardened criminals. The challenge is to find the resources for the up-front investment.
Alternative-sentencing programs, such as the 18 community-based correction facilities and other programs based on drug-and-alcohol treatment and life-skills training, have a record of reducing recidivism. But the state hasn’t invested in them equally across the state, according to Ohio Division of Rehabilitation and Correction Director Gary C. Mohr....
A proposal contained in one of the mid-biennium budget-review bills would provide about $13 million to add 400 to 500 community-facility beds across the state. Because stays in such programs typically are three months, each of those beds could allow three people per year to get help and treatment rather than a prison stay. That saves taxpayers money and increases the chance that the offender will go on to a productive life — a double win.
As Ohio’s prisons grow more crowded and potentially more dangerous, the need for more alternatives becomes clearer. One in every 175 Ohio adults is in a state prison, and with nearly 51,000 inmates, the system has 30 percent more than it was designed for. Considering that each of those inmates costs taxpayers nearly $23,000 a year and that a large number are low-level, nonviolent offenders, it’s an expensive way to deal with societal problems.
A change to state sentencing law in 2011 aimed to ease the burden by steering more nonviolent offenders to community-based correction programs. The largest counties responded, and two years ago the prison population seemed to be on the decline. But Ohio’s wave of heroin and other opiate addictions, combined with too few alternative-treatment options, have swelled the prison population again.... But Mohr now finds himself with a new peak population and no reduction in sight unless the state invests more in alternatives.
Legislators should take note of the successful track record of alternative correction and steer available funds in that direction. Ohio won’t benefit from more prisons; putting low-level criminals in prison is a lousy business model with a poor return on investment. Spending less to provide the type of supportive correction that can turn around lives is a much smarter proposition. And it saves prison beds for those who pose the greatest threat to society.
Recent related post:
Occupy Wall Street activist sentenced to occupy jail for three months
As the New York Times reports here, a "woman whose assault case had become a cause célèbre, first among Occupy Wall Street supporters and then expanding well beyond the movement, was sentenced to three months in jail on Monday, as a judge rejected calls for her immediate release." Here is more about a high-profile state sentencing that occurred yesterday in Manhattan:
The woman, Cecily McMillan, 25, a graduate student at the New School and a volunteer labor organizer, was convicted two weeks ago of assaulting a police officer at Zuccotti Park in Manhattan in 2012. Before the sentence was delivered, Ms. McMillan remained mostly defiant, even as she characterized the encounter with the officer as “an accident.”.....
But Justice Ronald A. Zweibel, who had remanded Ms. McMillan on May 5 after the four-week trial, imposed the jail sentence that prosecutors had requested, rather than release her on probation, as her lawyers had urged. She could have faced a maximum of seven years for the second-degree assault. “A civilized society must not allow an assault to be committed under the guise of civil disobedience,” Justice Zweibel said....
Upon her conviction, Ms. McMillan’s supporters wrote scores of letters to Justice Zweibel, urging him to be lenient. Five City Council members delivered the same message on the steps of City Hall, and the Russian activists Pussy Riot, who were recently imprisoned for criticizing President Vladimir Putin, visited her on Rikers Island and called for her release. An online petition calling for leniency garnered 160,000 signatures....
Before sentencing, Shanda Strain, an assistant district attorney, said Ms. McMillan deserved a three-month stay in jail because she had falsely accused Officer Bovell of grabbing her breast, lying under oath “to avoid responsibility for her actions.”
“This trial was not a referendum on a large social cause or movement, though the defendant tried and continues to try to make it just that,” Ms. Strain said. Then she added, “In essence, she has repeatedly argued that the rules should not apply to everyone equally — that defendants who are politically motivated deserve special treatment.”...
Ms. McMillan’s lawyer, Martin Stolar ... told the judge that the bruises and mental trauma that Ms. McMillan had suffered during her arrest were punishment enough. “You touch a police officer and get the hell beat out of you,” he said outside court. “That’s what happened to her. That’s enough of a deterrent.”
Ms. McMillan also received five years of probation, and was ordered to undergo a mental-health evaluation and treatment. Mr. Stolar said he had filed a notice of intent to appeal the verdict, and had asked that his client be granted bail pending the appeal.
Georgia Supreme Court rejects attack on execution drug secrecy
As reported in this local article, yesterday the Georgia Supreme Court "upheld the constitutionality of a state law that keeps secret the identities of the makers and suppliers of Georgia’s lethal-injection drugs." Here is more about the ruling:
The court, in a 5-2 decision, rejected a challenge to the statute filed by lawyers for condemned killer Warren Hill. The ruling should clear the way for a number of executions, which have been on hold while the case was pending.
The reasons for offering privacy are “obvious,” Justice Harris Hines wrote for the majority. These include avoiding the risk of harassment or retaliation from persons related to the prisoners or from others who might disapprove of the execution “as well as simply offering those willing to participate whatever comfort or peace of mind that anonymity might offer,” Hines wrote.
In addition, “we believe that the same logic applies to the persons and entities involved in making the preparations for the actual execution, including those involved in procuring the execution drugs,” Hines wrote. “(W)ithout the confidentiality offered to execution participants by the statute … there is a significant risk that persons and entities necessary to the execution would become unwilling to participate.”
Benham, who authored the dissent, noted the recently botched execution in Oklahoma of inmate Clayton D. Lockett, who died of a heart attack after he writhed, gasped and struggled to lift his head after being declared unconscious on the lethal-injection gurney. “I write because I fear this state is on a path that, at the very least, denies Hill and other death row inmates their rights to due process and, at the very worst, leads to the macabre results that occurred in Oklahoma,” wrote Benham, who was joined by Justice Carol Hunstein. “There must be certainty in the administration of the death penalty.”...
In a statement, Hill’s attorneys said the ruling “effectively affords the state of Georgia to alter (its) lethal-injection protocol in any way it sees fit and to conceal from the public and even the courts the identity and provenance of the chemicals it intends to use to carry out executions.” Benham’s dissent, the statement said, “correctly found that this decision conflicts with basic requirements of due process.”
The full Georgia Supreme Court ruling in Owens v. Hill is available at this link.
Sorry for all the tech problems, which I hope are now fixed
It seems the tech folks behind the typepad software had a terrible, horrible, no good, very bad Monday. I spent all day trying to access the blog, and I suspect I was not the only one. It now seem that all is better, and so I plan to return to regular programming. But I first wanted to extend my apologies to any and all reader who, like me, got really tired of seeing loading errors instead of this blog yesterday.
May 18, 2014
Identifying better DOJ prosecutorial priorities than low-level drug crimes
Perhaps the main reason I am a supporter of the Smarter Sentencing Act is my desire to have Congress send an important message about federal criminal justice priorities to the US Justice Department and others through a relatively modest revision of existing mandatory minimum sentencing provisions. Notably, the preamble to the SSA makes express mention of this goal, describing the purpose of the Act as designed to "focus limited Federal resources on the most serious offenders." By reducing (though not eliminating) mandatory minimums for various drug crimes, Congress would be effectively saying that federal prosecutors ought not prioritize federal prosecutions of first offenders who may have been involved in dealing only a few ounces of crack or meth or heroin.
Critically, under current law and after the SSA were to become law, if and whenever a drug offender has even a single prior drug offense or just possesses a firearm or causes any significant bodily harm, additional heightened mandatory sentences kick in. Thus, the only drug dealers likely to benefit significantly from the SSA are true first-offenders who deal only a few ounces of crack or meth or heroin. I feel confident that major dealers, repeat dealers, and those who use or threaten violence will still be a priority for federal prosecutors after passage of the SSA, and that the feds will still have plenty of prosecutorial tools to take down serious drug traffickers. And by making sure that lengthy prison terms are mandated only for the most serious offenders, federal prosecutorial and corrections resources can and should be better focused on other crimes, especially crimes that only federal prosecutors can effectively and efficiently prosecute.
What kinds of other crimes, you might ask, would I want federal prosecutors to prioritize over going after first offenders involved in dealing only a few ounces of crack or meth or heroin? Helpfully, old pal (and forner federal prosecutor) Bill Otis in a pair of new posts over at Crime & Consequences identifies two classes of federal fraud and corruption that ought to be a signal concern for federal prosecutors. Here I will provide links and highlights from these two posts:
A New Prosecution Priority for DOJ: "The lead story in the Washington Post today reports that possibly a million applicants for Obamacare subsidies may have 'misstated' their income.... DOJ should not allow something like that to happen again. Whether one loves Obamacare or hates it, no one has the right to bilk it by cheating. A few hundred highly publicized false statement prosecutions would go a long way toward keeping applicants honest and, therefore, keeping the program as solvent as it's going to get."
Another Prosecution Priority for DOJ: "My last post suggested that the Justice Department prosecute at least some of the thousands of Obamacare applicants who have intentionally falsified statements of their income in order to bilk the taxpayers for even more than they're being bilked out of already. There is second priority I would suggest for DOJ examination -- a priority that, it seems, the Department may have taken up. As the New York Times reports: 'The Department of Veterans Affairs' inspector general is working with federal prosecutors who are trying to determine whether criminal violations occurred at a medical center in Phoenix accused of falsifying data or creating secret waiting lists intended to hide months long delays for veterans to see doctors, a top official told a Senate committee on Thursday.'"
I suspect Bill would be quick to assert that the federal government in general and DOJ in particular has plenty of resources to keep going after all drug offenders and to now start going after Obamacare cheats and federal executive branch liars. Though it is surely true that federal prosecutions are not a zero-sum game, the fact remains that the sentencing laws on the books necessarily serve to structure and greatly influence the exercise of prosecutorial discretion for this Administration and others. Plus, state prosecutors can (and still do) go after low-level (and high-level) drug dealers, whereas state prosecutors cannot go after after Obamacare cheats and federal executive branch liars.
In short, I heartily endorse Bill's suggestion that AG Holder and his prosecutorial agents start going after Obamacare cheats and federal executive branch liars. And that endorsement of DOJ prosecutorial priorities provides an additional reason for my support of the SSA and its effort to reorient federal prosecutorial priorities accordingly.
Some prior posts about the SSA and debates over federal sentencing reform:
- Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote
- Are "hundreds of career prosecutors" (or mainly just Bill Otis) now in "open revolt" over AG Holder's support for the Smarter Sentencing Act?
- Forecasting the uncertain present and future of federal legislative sentencing reform
- House Judiciary Chair suggests Smarter Sentencing Act still facing uphill battle on the Hill
- Effective Heritage analysis of federal MMs and statutory reform proposals
- Significant collection of significant former federal prosecutors write to Senators to oppose SSA
- Another notable letter expressing opposition to SSA ... on US Senate letterhead
- How do we reconcile Senator Jeff Sessions' vocal support for the FSA and strong opposition to the SSA?
Detailing the death-penalty abolitionist's strategy and vision for the path to aboilition
This local article from Oregon, headlined "Death penalty opponent sees tough legal fight ahead," provides a helpful accounting of the current game-plan embraced by many hard-core death-penalty abolitionist. Here are excerpts:
A professor at American University made no secret of what he hoped to accomplish on a four-city visit to Oregon this week. Richard Stack, author of two books critical of the death penalty, wants to move Oregonians closer to abolishing it. Though Oregon is among the 32 states with it, the number that have abolished it grew from 12 to 18 in the past six years.
“We have a strategy of picking off a state at a time,” he said in an interview prior to a talk at Portland State University. “As we add states to the repeal column, when we hit No. 26, we will have a majority that do not have it.”
Then, he said, the NAACP Legal Defense Fund will go to the U.S. Supreme Court to argue that the death penalty violates the federal constitutional guarantee against “cruel and unusual punishment” under the 8th Amendment. “It’s the only way that some states will fall into line” such as Texas, which has executed 515 people since 1982 when current death-penalty laws were in place. Texas leads the states in executions.
Stack, an associate professor of public communication at the university in Washington, D.C., has written “Dead Wrong” and in 2013, “Grave Injustice: Unearthing Wrongful Executions.” He also spoke at events in Monmouth, Eugene and Corvallis.
Gov. John Kitzhaber, who let two executions proceed in 1996 and 1997 during his first term, has vowed there will be no further executions while he is in office. His temporary reprieve in 2011 of Gary Haugen, an inmate who sought to waive his appeals and be executed, was upheld by the Oregon Supreme Court last year.
Kitzhaber’s current term ends Jan. 12, 2015. If he is re-elected Nov. 4, that term will end Jan. 14, 2019. Washington Gov. Jay Inslee took a similar stance on Feb. 11.
Among other potential states for repeal advocates are Colorado, Delaware, Kansas, Montana and New Hampshire.
Oregon voters would have to repeal the death penalty, which since the state assumed responsibility for executions in 1903, voters have repealed twice and reinstated three times. The most recent vote was on a pair of ballot measures in 1984. They were necessitated when the Oregon Supreme Court overturned a 1978 ballot measure on grounds that juries, not trial judges, had to impose the penalty after determining guilt....
Lawmakers heard but failed to advance a proposed repeal measure in their 2013 session. Ron Steiner, who spoke for Oregonians for Alternatives to the Death Penalty, said repeal advocates seek to qualify an initiative measure for the 2016 general election ballot.
Three former Oregon chief justices dating back three decades – Edwin Peterson, Wallace Carson and Paul De Muniz – have announced their opposition to the death penalty, as has Frank Thompson, who as superintendent of the Oregon State Penitentiary oversaw the 1996 and 1997 executions. Steiner acknowledges that Oregonians sampled in a straight up-or-down poll say they support the death penalty. But he also said that support softens when they are asked more specific questions about it – including the substitution of a true life-without-release option.