May 31, 2014
"Why Republicans are slowly embracing marijuana"
The title of this post is the headline of this recent Los Angeles Times article, which includes these excerpts:
Marijuana is a political conundrum for the GOP, traditionally the stridently anti-drug, law and order party. More than half the voters in the country now live in states where medical marijuana is legal, in many cases as a result of ballot measures. The most recent poll by the Pew Research Center found most Americans think pot should be legal, a major shift from just a decade ago when voters opposed legalization by a 2-to-1 margin.
Most GOP stalwarts, of course, continue to rail against liberalization of the laws. Rep. Andy Harris of Maryland, a physician, declared during floor debate that medical marijuana is a sham. Real medicine, he said, “is not two joints a day, not a brownie here, a biscuit there. That is not modern medicine.”
But in a sign of how the times are changing, he found himself challenged by a colleague from his own caucus who is also a doctor. Rep. Paul Broun (R-Ga.) spoke passionately in favor of the bill. “It has very valid medical uses under direction of a doctor,” he said. “It is actually less dangerous than some narcotics prescribed by doctors all over the country.” Georgia is among the many states experimenting with medical marijuana. A state program there allows its limited use to treat children with severe epileptic seizures.
The rise of the tea party, meanwhile, has given an unforeseen boost to the legalization movement. Some of its more prominent members see the marijuana component of the War on Drugs as an overreach by the federal government, and a violation of the rights of more than two dozen states that have legalized cannabis or specific components of it for medical use.
Pro-marijuana groups have lately taken to boosting the campaigns of such Republicans, even those running against Democrats. A notable case is in the Sacramento region, where the Marijuana Policy Project recently announced it was endorsing Igor Birman, a tea partier seeking to knock out Democrat Ami Berra in a swing congressional district.
Cross-posted at Marijuana Law, Policy and Reform
Looking at some killers benefiting from SCOTUS Eighth Amendment ruling in Hall
As I noted earlier this week when the Supreme Court's handed down its ruling in Hall v. Florida (opinion here, basics here), the Justices' Eighth Amendment decision will be a big deal for the administration of capital punishment in those states with lots of murderers on death row and/or for those states that have been applying Atkins in restrictive ways. Following up these themes, today's New York Times has this lengthy front-page article looking at some of the death row defendants likely to be grateful for the decision. The piece is headlined "On Death Row With Low I.Q., and New Hope for a Reprieve," and here are excerpts:
For Ted Herring, who has spent 32 years on Florida’s death row for murdering a store clerk, signs of intellectual disability arose early and piled up quickly: He repeated first grade and got D’s and F’s through fourth grade. He read like a fourth grader at 14 and did not know that summer followed spring....
His intellectual disability was even obvious to a Florida judge, who found him “mentally retarded” and took him off death row 18 years after his original sentence. At 19, in 1981, Mr. Herring murdered a Daytona Beach 7-Eleven clerk, robbed the store and walked away with $23.84. But because Mr. Herring’s I.Q. scores were 72 and 74, just over the “bright line” cutoff of 70 used by Florida to determine intellectual aptitude, the Florida Supreme Court returned him to death row.
When the Supreme Court ruled this week that states can no longer rely on a fixed I.Q. score cutoff to decide intellectual competency, it increased the likelihood that Mr. Herring and other death row inmates like him will have a chance to avoid execution. Fewer defendants are also less likely to wind up on death row in the future because their claims of intellectual disabilities will be not be as readily discounted by the courts.
The ruling affects roughly 30 death row inmates. The number is low because the vast majority of states follow modern standards of determining intellectual disabilities, going beyond using a single number to be considered disabled. But in those states that will be affected, death row inmates with low, but not low enough, I.Q. scores that have been previously rejected or never put forward can now seek to have their sentences reconsidered....
In Florida, 15 to 20 inmates — perhaps the largest number in the country — will probably seek to overturn their death sentences because of the decision... “Florida has the third largest death row in the country and was the state that was the leader in doing this — the bright-line cutoff,” said William Henniss III, who said he had two clients who would most likely seek redress. “Expect there to be more cases like this.”
In Kentucky, five of 34 death row inmates are also likely to ask for new hearings based on the decision, said David Barron, an assistant public advocate who handles post-conviction cases.
Some of them, like Thomas Bowling, who was sentenced to death after killing a married couple in 1990, are likely to explore what the new I.Q. range will be in Kentucky, where 70 has been the cutoff. Mr. Bowling, who claimed on appeal that he was intellectually disabled, repeated the ninth grade several times before dropping out. But the appeals court rejected his claim because his most recent scores, the ones they viewed as most reliable, were in the 80s....
In Virginia, Alfredo R. Prieto is likely to seek a hearing based on is low I.Q. scores, which ranged between 70 and 75, said his lawyer, Cary B. Bowen. Those scores, Mr. Bowen said, “kind of fall in line” with the I.Q. range described in the Supreme Court decision as the kind that should not be rejected simply because they do not meet a cutoff. Mr. Prieto, who is from El Salvador and whose lawyers argued that he was scarred by the violence he saw there during the country’s civil war, is on Virginia’s death row for the 1988 murders of two people. He faces the death penalty for a murder in California, as well, and has been linked to others.
Recent posts on Hall:
- Big criminal justice decision day for SCOTUS, including 8th Amendment reversal of Florida's Aktins approach
- "Intellectual disability is a condition, not a number. See DSM–5, at 37."
- Will Hall have import or impact other then when states seek to execute the possibly disabled?
May 30, 2014
The Good, the Bad and the Ugly of mass incarceration analysis: John Pfaff tears apart NRC report
Astute readers who also follow closely a lot of broader media and political discussions of mass incarceration might have noticed that I have given relatively little attention on this blog to the massive report released late last month by the National Research Council (NRC) titled "The Growth of Incarceration in the United States: Exploring Causes and Consequences." To date, I only noted the report and some early reactions to it in this post.
One reason for my limited blog coverage is a result of the NRC report running more than 450 pages (accessible at this link); I am always disinclined to do in-depth analysis or commentary on a significant report unless and until I have had adequate time to read most of it. But the primary reasons I have not blogged much about the NRC report is because, as I found time to start reading key parts of the NRC effort, I found myself underwhelmed by the originality and sophistication of the report. I had hoped, for example, that the NRC report would take a close look at the relationship between lead exposure and crime rates and/or would systematically look at critical state and regional differences in US crime and imprisonment rates. Instead, rather than break any new ground, much of the NRC report reads like an effective and lengthy summary of a lot of conventional wisdom.
Fortunately, a leading legal academic and empiricist with a critical eye has started to bring a (very) critical perspective to the NRC report. Through a series of astute posts at PrawfBlawg (all so far linked below), Professor John Pfaff has started to pick apart a number of notable flaws and omissions in the NRC analysis. John's first post, titled "The Problematic National Research Council's Report on Incarceration: Some Initial Thoughts," previews his series this way:
The National Research Council, the well-respected research arm of the National Academy of Sciences, recently released a putatively authoritative report on the causes and implications of US incarceration growth. Sadly, it appears to be a deeply, profoundly flawed report. It is, in short, a rehashing of the Standard Story that I have argued time and again lacks real empirical support.
Dangerously, this report gives the Standard Story the NRC’s seal of approval, which will only increase its hold on policy-makers’ perceptions. The New York Times has already written an editorial pushing the NRC’s Standard-Story arguments, and no doubt it will be cited widely in the months to come.
So in the posts ahead, I want to dig into the report more deeply. I will certainly acknowledge what it gets right, but my sense so far is that it is one rife with errors.
From the start, here are John's posts to date highlighting some of the NRC errors he sees:
- The Flawed NRC Report: No Mention of Realignment!
"Photos from a Botched Lethal Injection"
The title of this post is the headline of this notable lengthy new piece by Ben Crair in The New Republic which carried the subheadline "An exclusive look at what happens when an execution goes badly." Here is how the piece starts, including its "preamble":
Warning: This article contains graphic images from the autopsy of an executed prisoner.
On December 13, 2006, the state of Florida botched the lethal injection of Angel Diaz. The execution team pushed IV catheters straight through the veins in both his arms and into the underlying tissue. As a result, Diaz, who was convicted of murder in 1986, required two full doses of the lethal drugs, and an execution scheduled to take only ten to 15 minutes lasted 34. It was one of the worst botches since states began using lethal injection in the 1980s, and Jeb Bush, then the governor of Florida, responded with a moratorium on executions.
Other states hardly heeded Diaz’s death at all. Since he died, states have continued to botch lethal injections: A recent study by Austin Sarat at Amherst College estimated that at least 7 percent of all lethal injections have been visibly botched. The most controversial was in Oklahoma this past April, when the state executed a convicted murderer and rapist named Clayton Lockett using a three-drug protocol, like most other death-penalty states. The execution team struggled for 51 minutes to find a vein for IV access, eventually aiming for the femoral vein deep in Lockett’s groin. Something went wrong: Oklahoma first said the vein had “blown,” then “exploded,” and eventually just “collapsed,” all of which would be unusual for the thick femoral vein if an IV had been inserted correctly. Whatever it was, the drugs saturated the surrounding tissue rather than flowing into his bloodstream. The director of corrections called off the execution, at which point the lethal injection became a life-saving operation. But it was too late for Lockett. Ten minutes later, and a full hour-and-forty-seven minutes after Lockett entered the death chamber, a doctor pronounced him dead.
Witnesses to the execution say Lockett writhed, clenched his teeth, and mumbled throughout the procedure. We won’t better understand what happened until Oklahoma releases an autopsy report some time this summer. But we do know what happened to Angel Diaz, who died under similar conditions. While the details of his execution have been known since 2006, The New Republic is publishing for the first time photographs of the injuries Diaz sustained from the lethal injection. I discovered the photographs in the case file of Ian Lightbourne, a Florida death-row inmate whose lawyers submitted them as evidence that lethal injection poses an unconstitutional risk of cruel and unusual punishment.
US House hearing on "Penalties" as part of Over-Criminalizaiton Task Force
Taking place as I write this post is a notable hearing (which I am watching live via this link) of the Over-Criminalizaiton Task Force of the Judiciary Committee on the topic of "Penalties." Here is the witness list, with links to their written statements:
- Mr. Eric Evenson, National Association of Assistant United States Attorneys, Evenson Testimony.pdf
A quick scan of the submitted testimony linked above reveals that regular readers of this blog will not find all that much which is new from the witness. But the submitted statements still provide a very effective review of all the essential elements of the modern debate over federal mandatory minimum sentencing provisions.
UPDATE: TheHouse hearing adjourned just before 11am, after most of the usual suspects had the opportunity to stake out their usual positions. I doubt this hearing moved the needle in any significant way, though I still found notable and telling that the US House Representatives arguing against the modern drug war and sentencing status quo generally seemed much more passionate and animated than those eager to support the status quo.
A "true political game changer" as House votes to preclude feds from going after state-legal medical marijuana?!?!?
The question and/or statement in the title of this post is my reaction to Alex Kreit's reaction here at MLP&R to the notable vote late last night in the US House of Representatives concerning an amendment to an appropriation bill. This MSNBC story provides the context and head-count:
It had all the markings of a measure that would no one notice: an obscure amendment to a low-profile bill, receiving a vote after midnight, the same week as a national holiday. It’s hardly a recipe for generating national headlines.
But the U.S. House of Representatives nevertheless did something overnight that Congress has never done. The House passed an amendment late Thursday night to restrict the Drug Enforcement Administration from targeting medical marijuana operations in states where it is legal.
The 219-189 decision came on a bipartisan appropriations amendment spearheaded by California Republican Rep. Dana Rohrabacher and California Democrat Sam Farr. The amendment still faces several procedural hurdles before it is ratified, but this is the first time such an amendment has succeeded in the House.
The roll call on the vote is here. Note that it passed largely with Democratic support – the vast majority of Dems voted for it; a clear majority of Republicans voted against it – but the measure was backed by a bipartisan group of co-sponsors.
At issue is a routine spending bill: providing federal funding for a variety of agencies, including the Justice Department, which occasionally enforces federal drug laws by raiding marijuana facilities in states where medical pot sales are legal. The amendment intends to block federal law enforcement from doing so in the future.
In the process, as German Lopez reported, the House acted without precedent: “The bill is the first time in history that any chamber of Congress has acted to protect medical marijuana businesses and users.” As Lopez’s report makes clear, the practical effect of the amendment means the House now believes that if states want to implement their own medical marijuana laws, they shouldn’t have to fear interference from the FBI.
“Congress is officially pulling out of the war on medical marijuana patients and providers. Federal tax dollars will no longer be wasted arresting seriously ill medical marijuana patients and those who provide to them,” Dan Riffle, director of federal policies at the Marijuana Policy Project, said in a statement. “This is a historic vote, and it’s yet another sign that our federal government is shifting toward a more sensible marijuana policy.”
Looking ahead, it’s not yet a done deal. The same spending bill has not yet been taken up by the Senate, and we don’t yet know how the upper chamber will feel about the DEA amendment. The measure would also need President Obama’s signature.
I share Dan Riffle's perspective that this is a historic vote, but I am not sure it really is a "game changer" as much a sign of the modern drug-war times. Whatever labels are used for the vote, though, it is certainly interesting and exciting for those eager to see a move away from the status quo with respect to federal pot prohibition and the broader federal drug war.
May 29, 2014
Report on how Chicago makes it nearly impossible for some sex offenders to register
A helpful reader alerted me to this notable local report from Chicago headlined "Chicago police fail to register sex offenders 601 times in just three months." Here is how the story starts:
On February 13 of this year, Bruce Harley went to the Chicago Police Department Headquarters to register as a sex offender. He was one of 22 people who were turned away that day because the office was simply too busy. That’s according to police records. A month later, on March 21, Bruce Harley was approached by Chicago police officers on the West Side of Chicago.
According to an arrest report, Harley wasn’t doing anything illegal but was “loitering in an area known for narcotic activity.” Officers ran Harley’s name and found he had failed to register. Harley told the officers he had tried to register on February 13 but had been turned away. He was arrested anyway and is now in the Cook County Jail, where it costs taxpayers $52,000 a year to house him.
I first heard about sex offenders being prevented from registering a few months ago. I spent several days waiting in line with offenders outside the criminal registration office at Chicago police headquarters. I couldn’t believe it when officers came out of the office and told dozens of men who had been waiting for hours that they might as well go home because the office was too busy to register them all. Then the officers warned the men that they could be arrested for failing to register even though they’d just waited for hours in line to do just that.
I went back several times and saw the same scenario play out.
"Funding Favored Sons and Daughters: Nonprosecution Agreements and 'Extraordinary Restitution' in Environmental Criminal Cases"
The title of this post is the title of this recent article authored by Paul Larkin that a helpful reader altered me. Here is the abstract:
Over the past eight years, the federal government has entered into more than two hundred nonprosecution agreements with corporations in white-collar crime cases. In such agreements the government promises to cease its investigation and forego any potential charges so long as the corporation agrees to certain terms. And there’s the rub: given the economic realities of just being charged with a white-collar crime these days, corporations are more than willing to accept nonprosecution agreements.
Prosecutors are cognizant of this willingness, as well as of the fact that these agreements are practically insulated from judicial review. This results in the prosecution possessing a seemingly unfettered discretion in choosing the terms of a nonprosecution agreement. The breadth of this discretion is nowhere more apparent than in environmental criminal cases. Nonprosecution agreements in such cases have begun to require corporations to donate monetarily to a nonprofit of the government’s choosing. Indeed, in 2012 British Petroleum agreed to pay more than $2.394 billion to nonprofit agencies.
This Article critiques this practice by highlighting the inconsistencies between nonprosecution agreements and plea bargaining — the latter are subject to judicial review while the former are not — and unearthing the differences between these payments and any common-law understanding of restitutionary principles. The Article then suggests that the practical result of these nonprosecution agreements is that prosecutors are diverting money that ought to be paid to the Treasury to government-chosen nonprofit agencies, a power constitutionally granted to legislative actors. Finally, the Article concludes by suggesting a modest reform: judicial review by a United States magistrate judge, so as not to run into any Article III concerns, to ensure that prosecutors do not take advantage of the nonprosecution agreement process.
May 29, 2014 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack
Terrific Posnerian disquisition on supervised release challenges and "best practices"
The always-interesting Judge Richard Posner has another one of his always-interesting discussions of federal sentencing policies and practices today on the Seventh Circuit's opinion in US v. Siegel, No. 13-1633 (7th Cir. May 29, 2014) (available here). The topic du jour is federal supervised release, and the full Siegel opinion is a must-read for all who work within the federal criminal justice system. And this paragraph from the start of the opinion and then a later passage highlight why:
We have consolidated these two criminal appeals because (with an exception discussed at the end of the opinion) both challenge only conditions of supervised release, imposed by the district court, and because the challenges raise closely related issues concerning such conditions. The issues ramify far beyond these two cases, however, which exemplify common but largely unresolved problems in the imposition of such conditions as a part of federal criminal sentencing....
In summary, these cases must be remanded for reconsideration of the conditions of supervised release imposed on these defendants that we have raised questions about. And for the future we recommend the following “best practices” to sentencing judges asked to impose (or minded on their own to impose) conditions of supervised release:
1. Require the probation service to communicate its recommendations for conditions of supervised release to defense counsel at least two weeks before the sentencing hearing.
2. Make an independent judgment (as required in fact by 18 U.S.C. § 3553(a)) of the appropriateness of the recommended conditions—independent, that is, of agreement between prosecutor and defense counsel (and defendant) on the conditions, or of the failure of defense counsel to object to the conditions recommended by the probation service.
3. Determine appropriateness with reference to the particular conduct, character, etc., of the defendant, rather than on the basis of loose generalizations about the defendant’s crime and criminal history, and where possible with reference also to the relevant criminological literature.
4. Make sure that each condition imposed is simply worded, bearing in mind that, with rare exceptions, neither the defendant nor the probation officer is a lawyer and that when released from prison the defendant will not have a lawyer to consult.
5. Require that on the eve of his release from prison, the defendant attend a brief hearing before the sentencing judge (or his successor) in order to be reminded of the conditions of supervised release. That would also be a proper occasion for the judge to consider whether to modify one or more of the conditions in light of any changed circumstances brought about by the defendant’s experiences in prison.
"Collateral Damage: America’s Failure to Forgive or Forget in the War on Crime"
The title of this post is the title of this important new report released this morning by the National Association of Criminal Defense Lawyers. The genesis of the report and its essential elements are well summarized via the text of an e-mail I received from NACDL about this report. Here is the start of this e-mail:
At an event this morning at the Open Society Foundations in Washington, DC, the National Association of Criminal Defense Lawyers (NACDL) is releasing a major new report -- Collateral Damage: America’s Failure to Forgive or Forget in the War on Crime – A Roadmap to Restore Rights and Status After Arrest or Conviction. With more than 65 million people in America having some form of a criminal record, the universality and import of the problem this nonpartisan report tackles is tremendous. NACDL's Task Force on the Restoration of Rights and Status After Conviction held hearings all over the country, featuring testimony from more than 150 witnesses from every corner of the criminal justice system, as part of the research leading to this report. Included among the witnesses were those who have faced unfair, irrational, and often life-altering barriers arising from a brush with the criminal law. Many of their stories are captured in the report. And many more are available in the complete transcripts of the Task Force’s hearings.
With more than one in four adults in the United States having some form of a criminal record, and more than 2.2 million people currently behind bars in the United States, more than any other nation in the world, the vast impact of the problem of collateral consequences and legal barriers to reentry is undeniable.
- More than 19 million people in America have a felony conviction on their record.
- There are 14 million new arrests each year.
- The burden of the collateral consequences of a conviction, just as arrests figures and so much else about America’s criminal justice system, is racially and ethnically disparate. For example, a criminal record hits black job seekers harder than white job seekers.
- The U.S. lags behind other countries in the area of the restoration or rights and status.
- Giving people the opportunity to move beyond a criminal record enhances public safety and saves money.
- These secret collateral consequences are frequently the result of legislative bodies reflexively and irrationally creating laws as a response to the crime-du-jour, most often without seeking out the appropriate data to craft sound policy.
- At last count, the American Bar Association’s National Inventory of the Collateral Consequences of Conviction (http://www.abacollateralconsequences.org/) has identified more than 45,000 separate collateral consequences in existence.
Often without any nexus whatsoever to the offense charged and/or for which an individual has been convicted, many people who have a brush with the law lose everything from their voting rights and their Second Amendment right to bear arms, to access to federal student loans. Some even lose their homes as a result of draconian laws designed to exclude entire families from public housing as a result of the alleged misdeeds of a single family member.
AG Holder urges fellow prosecutors to back his sentencing reform advocacy
This new NPR piece reports that "Attorney General Eric Holder took his case for overhauling the criminal justice system to an unlikely location on Wednesday — a closed-door conference of prosecutors, who were meeting at their national training center in Columbia, South Carolina." Here is more:
According to a person familiar with Holder's unpublicized remarks, Holder urged an audience of criminal division chiefs from U.S. Attorney's offices to support Smart on Crime initiatives that would reduce some drug sentences and to open up the clemency process to hundreds of inmates with clean records in prison.
Earlier this year, the Senate Judiciary Committee approved a bill that would cut some mandatory minimum penalties for non-violent drug offenders. But in recent weeks at least three prominent groups have attacked the legislation, including nearly 30 former Justice Department officials who served under Republican administrations; longtime Sens. John Cornyn, R-TX, Charles Grassley, R-IA, and Jeff Sessions, R-AL; and even Holder's own DEA administrator.
The attorney general addressed those concerns by pointing out that the bill, known as the Smarter Sentencing Act, would leave in place tough mandatory minimum sentences for most drug traffickers, with add-ons for people who possess weapons, are repeat offenders, or those who are considered leaders of an ongoing criminal racket.
"These changes represent anything but a softening of our stance against crime and those who perpetrate it, or a relaxing of our unwavering commitment to combat the drug-fueled violence that plagues far too many communities," Holder said, according to a law enforcement source in the audience. "On the contrary: in all our activities, we remain committed to the robust enforcement of federal anti-drug laws, and to focusing federal resources on the most significant threats to our communities," he said, according to the source.
May 28, 2014
"Judge orders temporary moratorium on Ohio executions"
The title of this post is the headline of this notable capital news emerging in my local legal arena. Here are the basics:
A federal judge has ordered a temporary moratorium on executions in Ohio while legal issues related to new lethal injection protocol are worked out. The order issued yesterday by U.S. District Judge Gregory L. Frost stops the scheduled July 2 execution of Ronald Phillips of Summit County and the Aug. 6 execution of William Montgomery of Lucas County. Two other executions scheduled later in the year are not affected for the time being, but Frost left his order open-ended.
Frost said an execution can be scheduled no earlier than Aug. 15. The delays are repercussions from the troubled execution of Dennis McGuire on Jan. 16. Witnesses observed that McGuire, 53, gasped, choked, clenched his fists and appeared to struggle against his restraints for 10 minutes after the administration of two drugs, midazolam and hydromorphone, before being pronounced dead at the Southern Ohio Correctional Facility near Lucasville.
As a result, the Ohio Department of Rehabilitation and Correction announced April 28 that it would use the same drugs, but in higher doses in future executions.... Frost ordered the attorneys representing condemned inmates and the state to “work together to coordinate efforts so that the court can set necessary deadlines following expiration of the stay.”
Paul Ryan joins chorus of GOP young guns supporting sentencing reform and Smarter Sentencing Act
Tucked within this interesting Daily Beast discussion of (former VP candidate) Representative Paul Ryan's war on poverty tour is the revelation that Ryan is now the latest prominent GOP official to support reform of federal mandatory minimum sentencing laws. As the article recounts:
I asked the representative from Janesville, Wisconsin, if he could reflect on a previously held ideological view that had changed over the course of his learning tour.
Without hesitation, Ryan delved into the need to reform federal sentencing guidelines. “I think our sentencing guidelines need to be revisited with an eye towards what actually works to make sure a person can hit their upward potential,” Ryan said. “Is it better to send someone to a successfully proven drug rehab program so they can knock the habit and get back on their feet again, or is it [better to] put them away for 16 years?”
Reflecting on past congressional efforts to limit discretion on the part of federal judges in imposing strict sentences—a reflection that will be sure to raise eyebrows in the House Republican Cloakroom—Ryan said: “I think we had a trend in America for a long time on mandatory minimums where we took away discretion from judges. I think there’s an appreciation that that approach has some collateral damage—that that approach is missing in many ways…I think there is a new appreciation that we need to give judges more discretion in these areas.”
Specifically, Ryan hailed the bipartisan work of Sens. Mike Lee (R-UT) and Dick Durbin (D-IL) to dramatically overhaul the federal sentencing guideline structure now in place. Dubbed the “Smarter Sentencing Act,” the legislation, which passed the Senate Judiciary Committee this year, would cut mandatory minimum sentences in half for certain drug offenses. It also would reduce crack cocaine penalties retroactive to 2010 and expand the discretion of federal judges to sentence defendants in certain cases to less time in jail than mandatory minimum guidelines permit.
Some older and recent posts on the "new politics" of sentencing reform:
- "Sentencing Debate Reveals Divide Among Republicans"
- 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 28, 2014 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1) | TrackBack
"Candidates for Maryland governor seek votes by helping ex-convicts"
The title of this post is the headline of this recent Baltimore Sun article which serves as more proof that the modern politics of crime and punishment have changed. Not long ago, candidates for governor would seek votes by talking up who could hurt lawbreakers more. Now the theme is helpping, and here is how this article starts:
When Democrat Douglas F. Gansler stopped by a Baltimore sports bar recently, the ex-convict behind the bar struck up a conversation. It's a tough road, the worker told Gansler, to get any job.
"I'm trying to turn my life around," he said. "I've got a newborn son." Gansler nodded emphatically, and dove into the wonky details of a seemingly unconventional plank in a former prosecutor's platform for governor. Gansler, like all the Democrats vying for the state's top political job, has a detailed plan to ensure ex-offenders do not go back to prison. The issue resonates in heavily Democratic Baltimore.
As public perception shifts about whether the "war on drugs" has succeeded, and as prison populations rise to unprecedented and costly levels, political experts say many candidates across the country have traded a tough-on-crime attitude for a more nurturing approach.
The three Democrats in Maryland's primary race for governor emphasize proposals for programs such as job training to help inmates successfully rejoin their communities. At forums, in policy papers, to community groups and on the campaign trail, each is pushing ideas to reduce recidivism.
"Compared to the candidates four years ago, it's a very different tone," said Jason Perkins-Cohen, executive director at Job Opportunities Task Force, which tries to help ex-offenders get work. "Candidates are sensing the mood has changed."
Nationwide, re-entry has become a bipartisan talking point, though Maryland's Republican candidates for governor have not made helping former inmates a top issue leading up to the June 24 primary.
May 27, 2014
Will Hall have import or impact other then when states seek to execute the possibly disabled?
Hall is a very big deal for the administration of capital punishment (opinion here, basics here), especially for those states with lots of murderers on death row and/or for those states that have been applying Atkins in restrictive ways. Nevertheless, while a big round of new Atkins/Hall litigation is sure to churn in a number of states in the months and years ahead, in the end the fate of probably only a few dozen capital defendants will be significantly impacted by the holding in Hall.
But, of course, the dicta and direction of the Supreme Court's Eighth Amendment work in Hall could be a big deal in lots of other setting if lower courts conclude that the import and impact of this ruling should extend beyond capital cases involving intellectionally challenged defendants. Here is a sampling of some (mostly new) Eighth Amendment language from the majority opinion in Hall that I could envision having some bite in some other settings:
The Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be. This is to affirm that the Nation’s constant, unyielding purpose must be to transmit the Constitution so that its precepts and guarantees retain their meaning and force....
No legitimate penological purpose is served by executing a person with intellectual disability. To do so contravenes the Eighth Amendment, for to impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being....
[A]ggregate numbers are not the only considerations bearing on a determination of consensus. Consistency of the direction of change is also relevant.... The rejection of the strict 70 cutoff in the vast majority of States and the “consistency in the trend,” Roper, supra, at 567, toward recognizing the SEM provide strong evidence of consensus that our society does not regard this strict cutoff as proper or humane....
The actions of the States and the precedents of this Court give us essential instruction, but the inquiry must go further. The Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment. That exercise of independent judgment is the Court’s judicial duty....
The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution. Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world. The States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects.
As these quotes highlight, the majority opinion per Justice Kennedy in Hall makes much of the "Eighth Amendment’s protection of dignity." (For those into counts, the term dignity is used nine times in Justice Kennedy's majority opinion, while the term is not used even once in Justice Alito's dissent.) Needless to say, I can identify a number of non-capital punishments that states and the federal government have been known to experiment with that seem to "deny the basic dignity the Constitution protects" (such as LWOP for non-violent offenders). I am hopeful that not only the Supreme Court but also lower courts continue to be open to arguments that it is not only some capital punishment provisions that can and sometimes do "contravene our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world."
Today's posts on Hall:
- Big criminal justice decision day for SCOTUS, including 8th Amendment reversal of Florida's Aktins approach
- "Intellectual disability is a condition, not a number. See DSM–5, at 37."
Effective Sentencing Project and HRW responses to Senators' letter opposing the Smarter Sentencing Act
I was very pleased to learn from helpful readers that Antonio Ginatta, the US Program Advocacy Director for Human Rights Watch, and Jeremy Haile, federal advocacy officer for The Sentencing Project, have now both authored effective and distinct responses to the May 12th letter sent by Senators Grassley, Sessions, and Cornyn to their Senate colleagues voicing opposition to the Smarter Sentencing Act (reported here). Haile's response appears here at The Hill under the headline "Last stand for the drug warriors." Here are excerpts:
In a letter to colleagues, Sens. John Cornyn (R-Texas), Chuck Grassley (R-Iowa) and Jeff Sessions (R-Ala.) wrote that the legislation “would benefit some of the most serious and dangerous offenders in the federal system.” The xenators raised the specter of a violent crime wave if minimum penalties for nonviolent drug offenses are reduced.
Describing the Smarter Sentencing Act as a sort of “get out of jail free card” for dangerous criminals is highly misleading. The bill would not eliminate a single mandatory minimum, nor would it reduce any maximum penalties. Instead, it would allow judges greater discretion in low-level cases, while preserving long sentences for the most serious offenders....
Unfortunately, some longtime drug warriors seem intent on throwing cold water on the sentencing reform movement just as it is heating up. Michele Leonhart, head of the Drug Enforcement Agency, recently testified that rather than unwinding the drug war, “we should be redoubling our efforts.” A number of former federal law enforcement officials have argued that current drug sentencing penalties should be preserved.
But we have tried incarcerating our way to a drug-free America, and that approach has failed. Three decades later, evidence is mounting that federal drug laws have led to skyrocketing prison populations without making communities safer. Meanwhile, illegal narcotics are as pure and as readily available as ever.
Rather than caving in to the “tough on crime” rhetoric of another era, Congress should seize a rare opportunity for reform. State after state has reduced drug sentencing penalties without jeopardizing public safety. Polls show that Americans, Republican and Democrat, favor treatment over prison for nonviolent offenders.
The old playbook on crime and punishment is worn out. It’s time to take a new approach to nonviolent drug sentencing.
Ginatta's response appears in an open letter available here to Senators Grassley, Sessions, and Cornyn detailing with hard data why so many of their claims are misguided. I urge ervery to read the HRW reponse in full, and here is an excerpt:
Your letter states that drug-related mandatory minimums “are used almost exclusively for high-level drug traffickers.” Data from the United States Sentencing Commission tells a much different story. According to the Commission, 40 percent of federal drug defendants were couriers or street dealers. In fact, nine out of ten federal drug defendants come from the lower or middle tiers of the drug business. Because mandatory minimums are triggered by the quantity of drug involved, a street-level dealer can face the same minimum sentence as the head of a large drug trafficking organization. A typical federal drug offender is someone like Jamel Dossie, a 20-year-old, small-time street-level drug dealer’s assistant who received a five-year mandatory minimum sentence for working as a go-between in four hand-to-hand sales totaling 88.1 grams or 3.1 ounces of crack (the weight of an average bar of soap)....
You next cite in your letter that “those who would benefit from these reduced sentences are not ‘non-violent’ — they would include repeat drug traffickers and criminals with a history of violence.” This is only part of the story. Almost half (49.6 percent) of all federal drug offenders imprisoned in Fiscal Year 2013 fell under the lowest criminal history category (zero or one criminal history point under the federal sentencing guidelines). And 83.8 percent of federal drug offenders during the same period were found to not have a weapon involved in their crime. A small percentage of drug offenders may have used a weapon in their offense, but the mandatory minimums you defend are wilfully blind to the vast numbers of those who didn’t. To brand all drug offenders as violent is too broad a sweep — no sane sentencing policy should make that assumption.
Some prior posts about the SSA and debates over federal sentencing reform:
- Another notable letter expressing opposition to SSA ... on US Senate letterhead
- Significant collection of significant former federal prosecutors write to Senators to oppose SSA
- 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
- "Some prosecutors fighting effort to eliminate mandatory minimum prison sentences"
- "Law Enforcement Lobby Quietly Tries To Kill Sentencing Reform"
- Effective Heritage analysis of federal MMs and statutory reform proposals
- "Prosecutors Wrong to Oppose Sentencing Reform"
- Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote
May 27, 2014 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack
"Intellectual disability is a condition, not a number. See DSM–5, at 37."
The title of this post is the sentence and cite that perhaps best summarized the work of the majority of the Supreme Court this morning in Hall v. Florida (opinion here, basics here). In Hall, the Court rejects as violative of the Eighth Amendment Florida's use of a bright-line IQ test cut-off set at 70 for defining who is eligible for execution (while dodging whether a cut off set at 75 would be okay) based principally on the medical community's consensus view that IQ tests are just one factor in assessing intellectual disability and are necessarily imprecise. Here are just a few excerpts from the majority opinion in Hall that highlight these themes:
That this Court, state courts, and state legislatures consult and are informed by the work of medical experts in determining intellectual disability is unsurprising. Those professionals use their learning and skills to study and consider the consequences of the classification schemes they devise in the diagnosis of persons with mental or psychiatric disorders or disabilities. Society relies upon medical and professional expertise to define and explain how to diagnose the mental condition at issue....
Florida’s rule disregards established medical practice in two interrelated ways. It takes an IQ score as final and conclusive evidence of a defendant’s intellectual capacity, when experts in the field would consider other evidence. It also relies on a purportedly scientific measurement of the defendant’s abilities, his IQ score, while refusing to recognize that the score is, on its own terms, imprecise....
It is the Court’s duty to interpret the Constitution, but it need not do so in isolation. The legal determination of intellectual disability is distinct from a medical diagnosis, but it is informed by the medical community’s diagnostic framework. Atkins itself points to the diagnostic criteria employed by psychiatric professionals. And the professional community’s teachings are of particular help in this case, where no alternative definition of intellectual disability is presented and where this Court and the States have placed substantial reliance on the expertise of the medical profession....This Court agrees with the medical experts that when a defendant’s IQ test score falls within the test’s acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.
Not surprisingly, the dissent in Hall recognizes and criticizes the majority's heavy reliance on the medical community's approach to determining intellectual disability. Here is a snippet of this criticism from the dissent:
Under our modern Eighth Amendment cases, what counts are our society’s standards — which is to say, the standards of the American people — not the standards of professional associations, which at best represent the views of a small professional elite....
The Court’s reliance on the views of professional associations will also lead to serious practical problems.
US Sentencing Commission releases two significant research reports concerning drug sentencing reform and retroactivity
I just received a notice from the US Sentencing Commission which highlights that the USSC has some new research that can and should help inform the on-going discussion of whether and how the new reduced drug guidelines ought to be made retroactive. Here is the text of this notice I got via e-mail, which includes links to two important new research documents:
As previously noted, the Commission is seeking public comment on the issue of whether to apply its recent amendment to the drug quantity table retroactively. The Commission will receive public comment on this issue through July 7, 2014. Public comment can be emailed to email@example.com. To facilitate public comment on this issue, the Commission is making available the following materials:In April, Commissioners directed staff to analyze the impact of retroactivity should the Commission vote to authorize retroactive application of the 2014 drug guidelines amendment.The Commission also released an updated recidivism analysis of crack cocaine offenders who were released early after implementation of a 2007 guidelines amendment which retroactively reduced by two levels the base offense levels assigned by the Drug Quantity Table for crack cocaine. In this five-year study, these offenders were compared with similarly situated offenders who served their original sentences.
Fascinating research on federal mortgage fraud prosecutions and sentencing in Western PA
I am pleased and excited to have learned over the long weekend that the Pittsburgh Post-Gazette and the Duquesne University School of Law collaborated on an innovative Fact Investigations class, led by associate professor and Criminal Justice Program director Wesley Oliver, to study the modern work of Western Pennsylvania's federal prosecutors in response to modern mortage fraus. As explained in this first article of a series about this work, this group "identified 144 prosecutions alleging mortgage-related crimes in the Pittsburgh area ... [and then] analyzed 100 prosecutions in which sentence had been pronounced and for which the federal sentencing guidelines could be discerned." Before getting into the findings, I want to heap praise on everyone involved in this project because it shows what valuable work can be done when law schools and traditional media team up to examine intricate and dynamic issues concerning the federal criminal justice system.
Here, from the start of the first article in the series, are the basic findings of this terrific project:
In 2008, as the housing market dragged the world economy down, orders came from Washington, D.C., to federal prosecutors nationwide: Bust the people whose lies contributed to the mess.
Six years later, the effort by Pittsburgh's federal prosecutors to punish fraudulent mortgage brokers, appraisers, closing agents, property flippers and bank employees can claim 144 people charged, more than 100 sentenced and no acquittals.
That undefeated record, though, came at a price: Some of the worst offenders got extraordinary deals in return for their testimony against others.
A review by the Pittsburgh Post-Gazette and Duquesne University School of Law students of 100 completed cases showed that the sentences of mortgage-related criminals in the Pittsburgh area were driven more by their degree of cooperation with prosecutors than by the number of people they scammed, the dollars they reaped or the damage they did to the financial system. Some of the most prolific offenders used their central places in the fraud conspiracy to secure light sentences.
• Leniency for cooperation was doled out liberally. At least 30 of the 100 defendants were the beneficiaries of prosecutorial motions to reward "substantial assistance" to the investigation. That cooperation rate is nearly double that seen in fraud cases nationwide, suggesting that prosecutors here rewarded more defendants than normal.
• Most of the mortgage criminals who assisted prosecutors got no prison time, and the average amount of incarceration for those 30 defendants was a little more than three months. By contrast, defendants who pleaded guilty but didn't provide substantial assistance to prosecutors, got average sentences of three years in prison. Those few who went to trial faced an average of 6½ years behind bars.
• Several of the figures most central to the region's mortgage fraud problem cooperated with prosecutors, and got non-prison sentences. For instance, Kenneth C. Cowden, formerly of McKees Rocks and now of Florida, performed unlicensed appraisals that exaggerated real estate values in the region to the tune of hundreds of millions of dollars. He cooperated and got nine months in a halfway house. Jay Berger of Fox Chapel, who recruited Cowden and lived lavishly from fraudulent mortgages, was sentenced in 2012 to 15 months in prison, but died this month at age 49 without serving time.
Here are links to all the article in the series:
- Mortgage fraud assault a Pyrrhic victory
- Rewards uneven in mortgage fraud cases
- She fought charges, got 10-year term
- Pleading guilty could cut defendant's sentence
Regular readers will not be at all surprised to hear me say that I view this terrific bit of investigative journalism as further proof that those who are really concerned about suspect disparities in federal sentencing ought to be much more focused on the application of (hidden and unreviewable) prosecutorial sentencing discretion than about the exercise of (open and reviewable) judicial sentencing discretion.
May 27, 2014 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack
Big criminal justice decision day for SCOTUS, including 8th Amendment reversal of Florida's Aktins approach
Clearly the Justices decided to celebrate the Memorial Day week by reminding everyone that the Bill of Rights has a lot of provisions concerning the administration of our criminal justice systems. Returning from the long weekend, the Supreme Court handed down five opinions this morning (four in argued cases, one per curiam), and all but one of the rulings has a criminal justice element. The big one for sentencing fans is the 5-4 Eighth Amendment ruling in Hall v. Florida, No. 12–10882 (S. Ct. May 27, 2014) (available here), which gets started this way:
This Court has held that the Eighth and Fourteenth Amendments to the Constitution forbid the execution of persons with intellectual disability. Atkins v. Virginia, 536 U. S. 304, 321 (2002). Florida law defines intellectual disability to require an IQ test score of 70 or less. If, from test scores, a prisoner is deemed to have an IQ above 70, all further exploration of intellectual disability is fore closed. This rigid rule, the Court now holds, creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.
The other criminal justice rulings in argued cases today concern police use of force and immunity, and the per curiam concerns when jeopardy attaches for the application of the Double Jeopardy clause. How Appealing has its always terrific review of all the essentials (with links) assembled here, and SCOTUSblog is sure to have a lot on all this action in coming posts.
Once I have a chance to read the Hall decision in full, I am sure I will have one or more substantive posts about the decision later today.
May 26, 2014
California DA tries to make sure marijuana crime does not pay by making the criminals pay for reduced charges
The Los Angeles Times has this fascinting new article on a fascinting drug war innovation being utilized by a local districy attorney in California. The article is headlined "Mendocino County D.A. takes a new approach to marijuana cases," and here are excerpts:
When David Eyster took over as Mendocino County district attorney, felony marijuana prosecutions were overwhelming his staff and straining the public coffers.
With hundreds of cases active at any one time, taking an average 15 months to resolve, there were few victories to show for all the effort. "The system hadn't broken yet," Eyster said, "but it was dangerously close."
That was a little over three years ago. These days marijuana cases clear in about three months and the Sheriff's Department is flush with cash, thanks to what some are calling "the Mendocino model." To others, it's the Mendocino shakedown.
The transformation began when Eyster dusted off a section of the California health and safety code, intended to reimburse police for the cost of cleaning up meth labs and pot grows, and retooled it for a modern Mendocino County. In exchange for paying restitution, which Eyster sets at $50 per plant and $500 per pound of processed pot seized, eligible suspects can plead to a misdemeanor and get probation. (The law says restitution is reimbursement for actual enforcement costs, but defendants waive an itemized accounting and state the amount owed is "reasonable.")
The relinquishing of allegedly ill-gotten gains seized in separate civil forfeiture actions — cash, trucks and the occasional tractor — also might be part of the deal offered under Eyster's "global resolutions."
The restitution program is available only to those without troublesome criminal backgrounds who have not wildly overstepped California's somewhat gray laws on medical marijuana. Those who trespass, grow on public lands or degrade the environment need not apply.
Eyster said it's a complex calculation that he jots out himself, by hand, on the back of each case file. The size of a grow is not necessarily the deciding factor: In one current case, the defendants have records indicating they are supplying 1,500 medical users, Eyster said. Another case involved just four pounds of processed marijuana, but evidence indicated the defendant was selling for profit. Participants must agree to random searches while on probation, comply with medical marijuana laws and grow only for personal use.
Restitution funds, which have topped $3.7 million since early 2011, go directly to the investigating agencies. Asset forfeitures — the $4.4 million in cash and goods seized in 2013 was nearly double the previous year — are shared by the state, the district attorney's office and local law enforcement.
Among those who have criticized the program is Mendocino County Superior Court Judge Clay Brennan, who during a restitution hearing last year for a man with an 800-plant grow blasted it as "extortion of defendants."
A federal grand jury investigating county programs that derive revenue from marijuana enforcement has subpoenaed accounting records on the restitution program, Eyster confirmed. The reason is unclear, as the U.S. attorney's office declined to comment on the probe.
Legal analysts also have raised concerns about the potential for unequal treatment of defendants and the incentive for officers to focus on lucrative targets at the expense of those more menacing to public safety....
Eyster teamed with Assemblyman Tom Ammiano (D-San Francisco) in 2011 to try to make pot cultivation a "wobbler," prosecuted as either a felony or misdemeanor. The effort failed, but he had devised another way to thin the caseload.
He drew on past experience with welfare fraud, where considering restitution before making a filing decision was routine. Convinced that not all defendants were created equal — the mastermind behind a for-profit grow is more culpable than hired trimmers — he decided to evaluate each case, consider potentially exculpatory evidence and cut deals as he saw fit.
He offers defendants guidance on how to stay within the law, and said paying restitution "shows a step toward rehabilitation." "A month doesn't go by when someone doesn't say: 'Thank you for handling it this way,'" Eyster said.
Since he took office, 357 defendants have decided to pay restitution. About 20 of those violated their probation, resulting in 180-day jail stints and new charges. (On a second round, a straight misdemeanor charge is off the table.)
Eyster never accepts seized cash as payment of restitution, but his approach does throw such assets into the bargaining mix. It is unclear how many probationers paid restitution and forfeited seized cash or goods, but Eyster conceded the practice is common. "One hundred percent of the time, the defense wants to do a global resolution," he said. "It's saving a lot of time and costs."...
Defense attorney Keith Faulder, who practices in Mendocino County, is circumspect when discussing Eyster's program. The district attorney, Faulder said, is "an innovator" who he believes is "operating in good faith when it comes to settling marijuana cases." However, Faulder said, Eyster "has a real policy of settling cases for civil forfeiture ... I think it gets a lot of dolphin with the tuna." That program has exploded in recent years, with law enforcement officials attributing the increased seizures to a pot trade that permeates the county....
Mendocino County Sheriff Tom Allman said his deputies do not have the time or inclination to police for profit: "If I wanted to use this as a business plan, I'd have 12 people on my eradication team," he said. He has two. But he credits restitution and forfeitures for a sheriff's budget that is $600,000 in the black, and said he has also been able to expand a resident deputy program and purchase a new fleet of cars.
Despite the criticism, Eyster said he was confident in the legality and effectiveness of his approach. He said that he had offered Melinda Haag, U.S. attorney for the Northern District, "first dibs on the prosecution of all marijuana cases in Mendocino County" but that she declined. So "they should please leave us alone and let local enforcement tackle our own marijuana problems."
Regular readers should not be at all surprised that I am inclined to praise Mendocino County DA for engineering a seemingly more efficient and perhaps more effective way to wage the modern drug war. Indeed, given the muddled mess that is both California's medical marijuana laws and the opaque federal enforcement of prohibition in that state, this "Mendocino model" for modern marijuana enforcement for lower-level marijuana cases strikes me as a very wise way to use prosecutorial discretion and triage prosecutorial resources.
I would like to believe that the federal grand jury investigating the "Mendocino model" is focused on seeing if a local success story can be turned into a national program. But I fear that the feds are looking into what DA Eyster is doing because they fear even the prospect of somebody inventing any better drug war mousetraps.
Finally, though I suppose I should be concerned about the potential for prosecutors extorting criminal defendants in this setting, this form of extortion troubles me much less that when prosecutors demand that defendants give up various rights to avoid a crazy-long mandatory prison sentences in traditional plea bargaining. When DA Eyster seeks money from marijuana defendants as part of the plea process, it seems he is only seeking to have them relinquish what were likely ill-gotten gains (much of which might end up going to defense attorneys' pockets without such a deal available); when other prosecutors seek pleas and cooperation from other defendants facing extreme prison terms, these prosecutors are demanding that defendants relinquish constitutional and statutory rights created specifically to limit and check the power of government officials.
Cross-posted at Marijuana Law, Policy and Reform
May 26, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack
"Is public shaming fair punishment?"
The title of this post is the headline of this recent Los Angeles Times commentary by Patt Morrison on an alternative punishment topic I always find interesting. Here are excerpts:
You play the judge: How would you sentence a man who spent 15 years picking on his neighbor and her handicapped children? A Cleveland judge sentenced just such a man, Edmond Aviv, to jail, community service, anger management and mental health counseling — and to spend five hours alongside a busy street on a Sunday in April with a great big sign branding him an intolerant bully.
The 8th Amendment bans cruel and unusual punishment. Is this either one? Or can justice be fairly meted out in something other than years and months behind bars?
In 2012, a different Cleveland judge gave a woman a choice of going to jail or spending two days standing on a street corner with a sign reading: "Only an idiot would drive on the sidewalk to avoid a school bus." The woman chose to hold the sign.
Puritan punishments like locking someone's head and hands in the stocks seem like retribution, not justice. In "The Scarlet Letter," Hester Prynne, was an adulterer, not a thief. Puritans believed in shame as a behavior corrector. But Prynne flaunted and even co-opted the "A" she was condemned to wear.
Should shame be a component of punishment? Does taking someone down a peg set a miscreant straight, any more than locking him up? And should it be at a judge's discretion?...
Judges have sentenced a La Habra slumlord to live in his own run-down building under house arrest for two months, and made an Ohio woman who abandoned 33 kittens spend a night alone in the woods. In a case that made the legal textbooks and withstood appeal in 2005, a San Francisco mail thief was ordered to stand on the post office steps with a sign that read: "I stole mail and this is my punishment."
It's hard to track the deterrent effect of such creative punishments because they happen so rarely. And judges have so much power and discretion that creative sentencing could mean wildly and unfairly different punishments for the same crime between one courtroom and the next — one reason that sentencing guidelines and laws exist in the first place.
Daniel Markel, the D'Alemberte professor of law at Florida State University and an expert on sentencing, points out that if these punishments didn't have some efficacy, "there probably wouldn't be much resistance" from miscreants, but "in fact defendants typically don't want to be publicly shamed because they realize there is something publicly humiliating about being exposed in the streets."...
The element of choice that comes up in some kinds of creative sentencing might also give us pause. In California and elsewhere, convicted sex offenders have requested castration — chemical and actual — to get out of prison. Civil libertarians object on "cruel and unusual" constitutional grounds, because it amounts to no choice, and because it gets dangerously close to the medieval notion of cutting off a thief's hands. Markel adds another objection to asking the guilty to pick their poison: "We punish to communicate censure and condemnation. It's for a democracy to make those decisions. We ought not empower defendants to be deciding their punishments."
Edmond Aviv apparently wasn't given a choice. Will public humiliation change his behavior? He had been convicted of harassment before, so it's hard to fault the judge for trying something different. And even though we don't live in Hester Prynne's world anymore, I'll cautiously side with the slice of democracy that told a Cleveland.com reporter they approved the sentence. After all, it "communicated censure and condemnation." In this case, it seems, a bad guy got his just deserts.
A few recent and lots of older posts on shaming sentences:
- Another notable (and astute?) local shaming sentence for elderly bully
- A shameful suggestion for how to make NYC roads and walkways safer
- New commentary calls "creative" shaming punishments "terrible" (on curious grounds)
- Public shaming instead of incarceration in Pennsylvania theft case
- Shaming t-shirts ordered as part of community service sentence
- What punishments really undermine human dignity?
- Shaming punishments and communitarianism
- A proper case for shaming?
- New article on shaming sanctions
- More shame, shame on you
- The state of shaming punishments (with lots of links)
"Disarming the Dangerous: Preventing Extraordinary and Ordinary Violence"
The title of this post is the title of this new paper by Mary Fan now available via SSRN. Though posted on line a few weeks ago, this piece strikes me as distinctly and depressingly timely in the wake of the mass shooting in California a few days ago. Here is the abstract:
Recent mass shootings at Navy Yard, Newtown, Aurora and elsewhere have jolted Congress and the states into considering gun violence prevention. More than 1,500 gun-related bills have been introduced since 2013, after the slaughter in Newtown of twenty elementary school children and six adults. Current legislation and debates are shaped by the specter of a heavily armed, mentally ill individual hunting in public places such as schools, businesses, and workplaces. In the states, the most successful type of legislation involves firearms restrictions for the mentally ill. In Congress, the legislation that garnered the most debate was a ban on assault weapons and large-capacity magazines. While the national attention to firearms violence prevention is salutary, for law and policy to tackle the core of the problem it is important to address two empirical questions: Who are the dangerous individuals committing most firearms homicides and why do the law’s current screens miss them?
This article draws on data from the National Violent Death Reporting System to answer the crucial foundational questions of who poses a danger and why the dangerous slip through existing legal screens. Presenting data on the most prevalent place of shooting, victim-shooter relationship, and the shooter’s prior history, the article shows that prevention of extraordinarily devastating firearms violence calls for attention to how the nation addresses “ordinary” violence. By ordinary violence, this article means violence that is often viewed as mundane, such as altercations between family members, friends and intimates in the home. Many perpetrators of firearms homicide have a history of such prior events -- yet a substantially smaller proportion of these violent episodes have been adjudicated, thereby slipping through existing screens for firearms restrictions. Based on these findings, the article discusses how discretion in dealing with “ordinary violence” can improve detection of the dangerous regardless of whether proposed firearms restrictions survive the gauntlet for new gun laws.
May 25, 2014
Detailing the Keystone State's enduring Alleyne problems
This local AP story from Pennsylvania, headlined "Supreme Court ruling snarls sentencing minimums," provides another review of the headaches that state courts are facing with its sentencing scheme in the aftermath of the US Supreme Court's Sixth Amendment ruling in Alleyne last year. Here are some excerpts:
A U.S. Supreme Court decision last year has prompted dozens of appeals in criminal cases across Pennsylvania and left judges scratching their heads on how to apply state laws on mandatory minimum sentences. The confusion has prompted meetings among judges, forced some judges to try out new jury instructions and even led some jurists to conclude that whole sections of state law are unconstitutional.
Legal experts say what happens next will be driven largely by cases already on appeal to the Pennsylvania Supreme Court. “No appellate court in Pennsylvania has gotten around to definitively deciding the question, and everybody, it seems, is waiting for someone else to decide it,” said St. Vincent College law professor Bruce Antkowiak, a former federal prosecutor and defense attorney.
The stumbling block is Alleyne v. United States, a high court decision stemming from a Virginia federal court case that found that juries, not judges, should decide whether a defendant committed crimes that trigger a mandatory minimum sentence. But Pennsylvania law says a jury decides a person’s guilt or innocence of the underlying crime, such as drug possession or robbery. A judge then uses a lower standard of proof to decide whether the mandatory sentencing “triggers” were proved — such as being in a school zone when drug dealing or brandishing a gun during the robbery.
Judges in at least one jurisdiction, Blair County in central Pennsylvania, recently decided to stop imposing mandatory minimum sentences altogether until the General Assembly rewrites the statutes. The judges made the decision after hearing arguments from prosecutors and a defense attorney for two men facing five-year mandatory minimums — one accused of dealing drugs in a school zone; the other charged with having a weapon while in possession of marijuana....
Since the Alleyne ruling, some Pennsylvania judges have begun asking juries to determine whether certain mandatory minimum triggers have been proved, even though state law doesn’t allow that. Other judges have ruled that Alleyne makes Pennsylvania criminal statutes containing mandatory minimum sentencing provisions unconstitutional in their entirety.
In eastern Pennsylvania, Lycoming County District Attorney Eric Linhardt said judges there first allowed juries to decide mandatory minimum sentences before reversing course and ruling the statutes illegal. “Ten cases are presently on appeal, and many others will soon follow,” Linhardt said, adding the impasse could affect 100 pending drug cases in his office.
Recent related post:
Detailing the high costs of an aging prison population
This lengthy story in the Omaha World-Herald, headlined "Prisons: pricey nursing homes for Nebraska's aging inmates," highlights the expensive realities of an aging prison population. Here are excerpts:
At age 84, Larry Ortiz is like many senior citizens, dealing with the aches and pains of old age. He uses a cane to steady his slow, shuffling gait. He battles arthritis in his bony fingers, bronchitis and dry eyes. He takes four medications and has trouble remembering names. He has had prostate surgery, been fitted for dentures and had cataracts removed. He has two artificial knees.
But Ortiz is different. He’s spending his twilight years behind bars, serving a life sentence for beating a 29-year-old woman to death in 1970, then cutting off her hands to mask her identity before dumping her body. And the cost of his old-age maladies is being picked up by taxpayers.
Ortiz is part of an ever-rising number of aging inmates who occupy prison cells in Nebraska and other states — nationwide, they are the fastest-growing segment of the prison population. In Nebraska, the graying of prisons has contributed to chronic overcrowding and has been a major factor in rapidly rising health-care costs.
Dealing with older inmates is not cheap. Nationally, they are twice as expensive to house on average as younger prisoners because of their increased medical needs — such as Ortiz’s titanium knees, which together cost upward of $90,000.
Prisons have become de facto nursing homes for more and more inmates. Unit 1 at the Nebraska State Penitentiary in Lincoln, where Ortiz lives, houses many senior citizen inmates. It’s designed to accommodate wheelchairs and has wider doors and handrails. The state corrections system also has 31 skilled nursing beds, like those found in a nursing home. The state is looking at building a 240-bed prison to consolidate housing for inmates who are older, as well as those with mental illnesses.
Prison administrators say that by law they must provide the “community standard of medical care” or risk federal intervention. In California, for example, the U.S. Supreme Court cited substandard medical care and overcrowding in ordering the release of thousands of inmates. “It may frustrate taxpayers,” Nebraska prison Director Mike Kenney said of the medical care, “but constitutionally, ethically and morally, we cannot cut corners with inmates.”
The ACLU and other groups recommend increased use of “medical” or “geriatric” parole for medically incapacitated inmates and “conditional releases” for inmates over age 50, if they have served a certain number of years and no longer are threats to society. “Geriatric” or “medical” parole can save states money, said Marc Levin, a corrections authority with the Texas Public Policy Foundation, which has studied Nebraska’s prison system. At least 36 states, including South Dakota, have such laws, Levin said. California granted medical parole to 47 inmates from 2010 to October 2012 and reduced its health care expenses more than $20 million.....
The increase in older inmates was a key driver in a request to the Nebraska Legislature
last fall for $9 million to cover additional medical expenses this year and next....Generally, criminal offenders show signs of aging earlier than the typical person, in part because of their riskier lifestyles, which can lead to higher rates of hypertension, arthritis, sexually transmitted diseases, hepatitis and diabetes. About 1 in 3 inmates in Nebraska’s state prisons — about 1,600 — receives “chronic care,” which involves regular medication and follow-up checks for conditions such as hypertension and asthma.
A report by the ACLU projects that by 2030, 1 in 3 prisoners in the nation will be 55 or older. As of October of last year, nearly 18 percent of the inmates in Nebraska prisons were 50 or older. In Iowa, about 12 percent of the state’s 8,215 prison inmates are over 50. Nationally, get-tough-on-crime policies and the general aging of the U.S. population have been blamed for the explosion of silver hairs behind bars.
In Nebraska, there is an additional factor: Fewer inmates serving life sentences are being given a chance at release. Three decades ago the State Board of Pardons was more likely to commute a life sentence for murder to a specific number of years once an inmate had served 20 or 30 years. That provided a chance to gain a release on parole. But such commutations have occurred only four times in the past 23 years, so more lifers are spending the rest of their days in prison, racking up medical and prescription expenses.
The National Institute of Corrections estimates that it costs $60,000 to $70,000 a year to house an elderly inmate, compared with $27,000 to $34,000 for the average prisoner....
During the 2012-13 fiscal year, 16 inmates died in state prisons; 12 were over age 50. Releasing elderly, infirm inmates would present some problems. Win Barber, a penitentiary spokesman, said many would have to go to nursing homes — which may not want to house someone like a convicted murderer.
Gov. Dave Heineman, who sits on the State Pardons Board, said he would be cautious about releasing elderly inmates, though it’s probably something worth studying as part of the overall study of the state prison system’s spending and policies. “They’re in prison for a reason,” he said.