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January 25, 2014

"Bring back the firing squad for the death penalty: The best way to dispatch the monsters among us"

Sqaud_s640x499The title of this post is the headline of this interesting and provocative new commentary by Tammy Bruce appearing in the Washington Times. Here is much of the discussion:

Has the left’s attempt to use the lethal-injection process to ban the death penalty backfired? Consideration of firing squads for implementing the death penalty is not a fringe issue and would bring back the humaneness the left claims it wants in the process.

As often as I can, I laud the importance, value and decency of the death penalty. As a feminist, I’ve spent a great deal of my adult life as an advocate for women, educating on violence against women and agitating for justice for women in a system that far too often forgets the victims on the receiving end of a beast’s rage.

Wiping monsters from the face of the earth is a good thing, and the death penalty provides the ultimate statement from society that we refuse to pamper the heinous and cold-blooded among us. Victims’ families also deserve the closure and respect of a society that takes decisive action against those who dared to rip their worlds apart.

Now, with the use of DNA evidence to confirm guilt, the argument of mistakenly executing an innocent man is also off the table. We all want to eliminate doubt, and modern science now allows us to do just that.

So last week I was especially pleased to see lawmakers in Missouri and Wyoming arguing for the use of the ultimate in fast and humane executions — the firing squad. Finally, common sense is prevailing after years of trying to placate the left by doing everything possible to make an execution seem like a visit to the spa. The only thing we aren’t doing while “putting to sleep” the most craven among us was reading them a bedtime story and surrounding them with puppies.

This renewed call for firing squads hasn’t come out of the blue. A shortage of the drugs (owing to the one U.S. drug manufacturer responding to pressure from anti-death penalty activists) used in the three-drug execution cocktail has forced states to determine exactly how they can carry out the process while making sure the condemned doesn’t get too uncomfortable.

Me? I’d feed the jerks more than a few cocktails (martinis to be exact), put them behind the wheel of a Pinto and let them loose in one of those crash-dummy test ranges. I’d enjoy telling them freedom is just past that brick wall over there and invite them to hit the gas. Next.

A case in point just last week: Dennis Maguire was finally put to death after being found guilty of the torturous and sadistic murder of Joy Stewart in 1989. Joy was seven months pregnant when Maguire raped and sodomized her, slit her throat and stabbed her to death. Her body was then dumped in the woods.

The coroner thinks her unborn baby possibly survived the initial assault and could have lived hours more in his dead mother’s womb. Carl would have been his name. Joy’s husband, Kenny, unable to cope with the atrocity of what happened to his family, killed himself a week before Maguire’s trial.

Finally last week, Ohio got on with the business of execution a quarter of a century after Maguire had been sentenced to die. Yet the media and anti-death-penalty trolls were beside themselves when Ohio opted to execute Maguire with a two-drug cocktail instead of the usual three. The hand-wringing over the possibility that rapist-murderer-child-killer Maguire wouldn’t see kittens in his dreams before dying in his sleep was pathetic....

The lethal-injection system, by its very process, gives credence to the notion that executing someone is a bad thing and, therefore, needs to be made “nice.” Executing the evil among us is a necessary thing, but for those who insist it be compassionate, the firing squad is the answer. Quick, painless and inexpensive, it is, in fact, the ultimate in humane dispatching.

I can hear those, some of whom are well-meaning, who worry about the lives of monsters, appalled about the imagined cruelty and inhumanity of my argument. I’ll tell you what’s inhumane — forcing the innocent to watch society herald the murderers in our midst.

The inhumanity is ignoring the innocent whose worlds were destroyed by craven savages like Maguire, condemning their families to lives devoid of closure and whatever peace might be possible. The death penalty provides justice to those who deserve it. It’s time we take that seriously, end the atrocious delays in executions and bring back the humaneness of the firing squad.

Some recent related posts on Ohio's struggles and execution by firing squad:

January 25, 2014 in Baze lethal injection case, Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack

"Murder, Minority Victims, and Mercy"

The title of this post is the title of this interesting looking paper that just appears on SSRN and is authored by Aya Gruber.  Here is the abstract:

Should the jury have acquitted George Zimmerman of murder? Should enraged husbands receive a pass for killing their cheating wives? Should the law treat a homosexual advance as adequate provocation for killing? Criminal law scholars generally answer these questions with a resounding “no.”  Theorists argue that criminal laws should not reflect bigoted perceptions of African Americans, women, and gays by permitting judges and jurors to treat those who kill racial and gender minorities with undue mercy.  According to this view, murder defenses like provocation should be restricted to ensure that those who kill minority victims receive the harshest sanctions available.  Equality is thus achieved by ratcheting up punishment.

There is a similar bias in assessment of the death penalty, where those who kill racial minorities are treated more leniently than those who kill whites and are often spared execution.  But the typical liberal response here is to call for abolition rather than more frequent executions.  Equality is thus achieved by ratcheting down punishment.

This article asserts that the divergence between the accepted scholarly positions on the provocation defense and capital punishment can be explained by provocation critics’ choice to concentrate on spectacular individual instances of leniency toward those who kill gender minorities and death penalty theorists’ tendency to view the entire institution of capital punishment as racist and retrograde.  The article then provides the institutional sketch of noncapital murder law currently missing from provocation analysis by discussing sentencing practices, the demographic composition of murder defendants, and the provocation defense’s potential role as a safety valve.  It concludes that inserting institutional analysis into the critical assessment of provocation might undermine the prevailing scholarly dogma supporting pro-prosecution reform.

January 25, 2014 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (4) | TrackBack

January 24, 2014

How could AG Eric Holder justify refusing to authorize the death penalty process for Boston Marathon bomber, Dzhokhar Tsarnaev?

The question in the title of this post is my reaction to this new New York Times article headlined "U.S. Weighs Pursuit of Death Penalty for Suspect in Boston Bombing."  I really mean this question to be more of a friendly suggestion and challenge to readers who are strongly opposed to the death penalty in all cases, in part because I suspect AG Holder would have a hard time developing a sound (and politically effective) public justification for not starting the federal death penalty process.  So, abolitionists, use the comments to ghost write a speech for AG Holder to justify not authorizing a capital prosecution in this case.  Here is the start of the NY Times article to provide for all the essential background for this question and challenge:  

Since the federal death penalty was reinstated, in 1988, attorneys general have authorized it for about 500 defendants. By the end of the month there may be yet another: the accused Boston Marathon bomber, Dzhokhar Tsarnaev.

Attorney General Eric H. Holder Jr. must decide by Jan. 31 whether to pursue the death penalty, but even if he does so, it is far from certain that Mr. Tsarnaev would actually face execution.  Of those 500 defendants, only three have been executed, the last one a decade ago, according to the Federal Death Penalty Resource Counsel.

Still, Mr. Holder’s job is not to weigh the probabilities of Mr. Tsarnaev’s execution. Instead, he must decide whether the aggravating factors that might justify death in this case, like the indiscriminate killing and maiming of innocent people, outweigh any mitigating factors, such as the possibility that Mr. Tsarnaev, who was 19 at the time, was under the sway of his older brother.  

While Mr. Holder has said he does not personally support the death penalty, he has authorized its use several times, and many legal experts expect he will do so again in this case.

Some prior related posts:

January 24, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Notable early Massachusetts legislative response to elimination of juve LWOP

This Boston Globe article, headlined "Bill seeks at least 35 years for young killers," reports on a proposed statutory response to the recent ruling by the Supreme Judicial Court of Massachusetts (discussed here) which declared that that "all life-without-parole sentences for juvenile offenders, whether mandatory or discretionary, violate art. 26 of the Massachusetts Declaration of Rights." Here are the basics:

A group of state lawmakers is proposing legislation that would require juvenile murderers to serve at least 35 years in prison before being eligible for parole, in direct response to a Supreme Judicial Court ruling that struck down life sentences without the possibility of parole for young killers.

The bipartisan bill would also require the state Parole Board, in deciding whether to grant early release, to consider whether a teenager convicted of murder had the maturity and sense of responsibility of an adult when carrying out the crime.

The bill was based on the recommendation last week of the Massachusetts District Attorneys Association and was meant to fill a legal void left by the Supreme Judicial Court decision in December that eliminated sentences of life without parole for juveniles, even those convicted of the most horrendous crimes. “It’s about the injustice this would mean for the victims’ families,” said state Senator Barry Finegold, a Democrat from Andover and one of the sponsors of the legislation.

Senator minority leader Bruce Tarr, a Republican from Gloucester who cosponsored the bill, added that he has spoken with the families of murder victims and “their loss is no less because their suffering was at the hands of a juvenile.”...

According to state officials, approximately 66 prisoners who were sentenced to life without the possibility of parole for crimes they committed as juveniles could now be eligible for parole. No hearings have been scheduled.

Joshua Dohan — director of the youth advocacy division for the state Committee for Public Counsel Services, the state’s public defender agency — questioned how the state legislators reached the 35-year mark. Dohan pointed out that international standards, agreeing that teenagers have mindsets that are different from those of adults, call for juvenile sentences of, on average, no more than 20 years in prison, even for murder.

He said legislators are reacting quickly to a sensitive issue, but that they should slow down the process. He called for lawmakers to give judges discretion to hand out punishments, so they could consider a teenager’s culpability in a crime. “These are really important decisions that are going to affect the defendant, but also their families and the families of their victims,” he said....

Tarr and Finegold, flanked by a group of legislators who sponsored the bill, said the 35-year limit is a balance between holding a teenager accountable for his or her crimes and preserving the constitutional issues cited by the courts. Other states, reacting to the US Supreme Court decision, have passed a variety of laws: Wyoming, for instance, offers parole after 25 years.

“While it’s not an ideal situation, we hope this will bring a measure of comfort to the victims’ families,” said Finegold, who said he was working on behalf of Colleen Ritzer, the Danvers High School teacher who was killed in October, allegedly by a student.

A few other recent related posts:

January 24, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

January 23, 2014

Why the #@$%! is Justin Beiber's sentencing exposure so low for underage DUI?

The foul-mouthed question in the title of this post was my reaction to reviewing the details in this AP article concerning the charges brought and sentencing ranges in play following troubled pop star Justin Beiber's arrest for drunk driving early this morning.  Here are the basics:

Justin-bieber-mug-600A judge set pop singer Justin Bieber's bail at $2,500 Thursday after police say he drag-raced down a Miami Beach street while under the influence of alcohol. He was charged with DUI, driving with an expired license and resisting arrest.

Bieber was arrested after police said they saw him speeding down a residential street in Miami Beach in a yellow Lamborghini. Officers say he had an expired license, was initially not cooperative when he was pulled over and smelled of alcohol. Police say Bieber later admitted that he had been drinking, smoking marijuana and taking prescription medication....

R&B singer Khalil Amir Sharieff was arrested in the same incident. He is charged with driving under the influence, and his bond was set at $1,000. Police said Khalil was driving a Ferrari. Both Bieber and Khalil appeared briefly in court wearing bright red jail fatigues. They remained silent while defense attorney Roy Black negotiated bond.

Black, a high-profile lawyer whose clients have included Rush Limbaugh and William Kennedy Smith, said he thought the case would proceed "hopefully as any other case would" in light of Bieber's celebrity status.

Authorities say Bieber was arrested after police saw him and Khalil racing two luxury vehicles down the street at 4:09 a.m., with two other vehicles apparently being used to block off the area. Police say Bieber was clocked at 55 to 60 mph in a 30 mph zone. Earlier Thursday, police chief Ray Martinez said at a news conference that the singer was initially not cooperative when the officer pulled him over. Martinez said the singer also had an invalid Georgia driver's license and admitted to smoking marijuana, taking prescription medication and drinking.... Bieber failed a field sobriety test and was taken to the Miami Beach police station for a Breathalyzer, police said. Results haven't been released....

The street where police say Bieber was racing in mid-Miami Beach is a four-lane residential street divided by a grass median dotted with palm trees. Along one side of the street are small apartment buildings, and on the other side are a high school, a youth center, a golf course and a city firehouse....

Thursday's arrest is just the latest in a series of troubling incidents. Bieber has been accused of wrongdoing in California, but has never been arrested or charged. He is currently under investigation in a felony vandalism case after a neighbor reported the pop star threw eggs at his house and caused thousands of dollars of damage....

Under Florida law, people under the age of 21 are considered driving under the influence if they have a blood-alcohol content of .02 percent or more - a level Bieber could reach with one drink.

For a first DUI offense, there is no minimum sentence and a maximum of six months, a fine of $250 to $500, and 50 hours of community service. For anyone under 21, there is an automatic six-month license suspension. A first conviction for drag racing carries a sentence of up to six months, a fine of $500 to $1,000 and a one-year license suspension....

The Florida arrest likely won't affect Bieber's immigration status. According to U.S. immigration law, authorities do not revoke an individual's visa unless the person has been convicted of a violent crime or been sentenced to more than one year imprisonment.

Immigration attorney Ira Kurzban says neither driving under the influence nor driving without a license can make an individual eligible for deportation. Nor would either of those offenses keep Bieber from being readmitted into the U.S. "He's not subject to deportation because of a DUI offense," said Kurzban, "nor is driving with an expired license a deportable offense."

Long-time readers know that, while I think the scale of punishments for many offenses (especially nonviolent ones) in the US is often much too harsh, I have long viewed the scale of punishments for drunk driving to be way too lenient.  In my view based on the innocent lives ended and permanently damaged every day by drunk drivers, the offense of DUi is one of the most persistent and enduring threat to public safety and one that I think modern criminal justice systems out to be do a heck of a lot more to deter and prevent.

For reasons that should be clear from the above description of Justin Beiber's offense conduct, it would seem as though he has committed one of the most aggravated forms of DUI here: he is an underage drinker, was in a residential neighborhood, was going twice the speed limit, resisted arrest, and (I suspect) was very drunk on numerous intoxicants while drag racing. For all those reasons, I want the book thrown at this dangerous (and famous) criminal. But apparently the worst sentence he can possibly get is "six months [in jail], a fine of $250 to $500, and 50 hours of community service." Yeesh.

As I have said before and as I know I will say again: my interest in deterring and incapacitating drunk drivers makes me eager to see rich, celebrity offenders get slammed with every reasonable shaming and alternative sanction possible ranging from having to forfeit their cars to losing driving privileges for years to paying enormous fines IN ADDITION TO whatever prison term is thought to send the right kind of message concerning these kinds of offenses. Sadly, though, I suspect Beiber will end up just getting a slap on the wrist after Roy Black trains him to say he was sorry, and we all will have to worry about whether and when there will be a next time Beiber (and maybe some of his beiliebers) spill blood rather than just oil on a neighborhood road.

Some related posts on sentencing drunk drivers:

January 23, 2014 in Celebrity sentencings, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (28) | TrackBack

"How Colleges Are Preparing Students for a Country Where Pot Is Legal"

The title of this post is the headline of this notable new article appearing in The Atlantic.  I am pleased that my law school seminar, Marijuana Law, Policy and Reform, is discussed in the piece, and I am even more pleased to learn from the article that at least one other law school is now innovating in this interesting new legal space:

Professors who found an intersection between the cannabis issue and their own area of study are not the only ones pushing to introduce cannabis to higher education. Rehman Bhalesha, a South Texas College of Law student, approached the dean about wanting to establish a drug policy institute at the law school that concentrated on the legalization of cannabis. Instead, the school started a collaboration with Rice University's Baker Institute, which already focused on drug policy. The first class at South Texas College of Law, which covered cannabis legislation, was taught last spring semester. It is offered again this semester.

“Internally, the administration is really thrilled about it because it’s something innovative. And the students are excited because they get to feel like they’re putting their legal knowledge to use and to do something that might have a lasting impact in the real world. They’re not just taking exams and doing make-believe projects. We’re taking what they draft and turning it over to people who have been approached by state legislators asking for ideas,” said Dru Stevenson, the professor who teaches the legislation course.

Students in the legislation class have a range of personal feelings about cannabis. Some feel all drugs should be legalized, others think cannabis should be legalized for medical purposes only, while a few others think all drugs are bad. But Stevenson said even those who think no one should ever consume cannabis recognize the trend toward relaxing cannabis laws from a historical perspective.

“I teach a lot of courses, but I’ve never had one where people were emailing me months in advance wanting to make sure that I’m going to be offering the course and wishing they could reserve a seat ahead of time,” Stevenson said.

Cross-posted at Marijuana Law, Policy and Reform.

January 23, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing | Permalink | Comments (1) | TrackBack

How will Texas sentencing jury exercise its broad discretion after NFL player's intoxication manslaughter conviction

As reported in this lengthy local article, the conviction of a high-profile defendant in Texas state court now presents an interesting new case study in jury sentencing discretion.  Here are the detais:

Former Dallas Cowboy Josh Brent faces up to 20 years in prison after a Dallas County jury Wednesday found him guilty of intoxication manslaughter for a 2012 wreck that killed his best friend and teammate.

The verdict followed six days of testimony and arguments and approximately nine total hours of jury deliberations about whether Brent was actually drunk while driving in a Dec. 8, 2012, rollover wreck that killed 25-year-old Jerry Brown Jr., a Cowboys practice squad linebacker.  The jury will now have to determine how much time — if any — Brent will spend behind bars for the felony conviction.

Brent — who served 30 days in an Illinois jail in 2009 after being arrested for driving drunk on an expired license and speeding — is eligible for probation. The punishment phase of Brent’s trial is set to begin Thursday.... The judge sent the jurors home Wednesday evening after they had been sequestered in hotel rooms Tuesday night. But they are still not allowed to talk to anyone about the case or take in media accounts until after the sentencing....

Brent was originally arrested after the early morning single-car crash on a State Highway 114 frontage road in Irving.  He was driving at least 110 mph on a 45-mph stretch of road when his car hit a curb and spun out of control, according to court testimony. Neither Brent nor Brown wore their seat belts. An investigator testified during the trial that Brown’s body helped cushion Brent from more serious blows during the crash.

Tests showed Brent’s blood alcohol content after the wreck was 0.18 percent, which is more than twice the legal limit for driving of 0.08. A toxicologist testified that Brent, who weighs 320 pounds, would have had to drink 17 standard alcoholic drinks to reach that level.

Brent’s attorneys — George Milner III, Kevin Brooks and Deandra Grant — acknowledged that he was speeding, but tried to cast doubt on whether the ex-player was drunk at the time. “There is no proof in the record as to why he drove fast … He drove fast when he had nothing to drink,” Milner said in closing arguments.

January 23, 2014 in Celebrity sentencings, Who Sentences? | Permalink | Comments (10) | TrackBack

January 22, 2014

Highlights from Federal Sentencing Reporter issue on “White-Collar Sentencing”

I noted in this recent post that I have the honor of speaking this coming Friday morning at a sentencing seminar in New York City sponsored by Proskauer’s White Collar Defense & Investigations Group. This event has been planned in conjunction with the publication of Federal Sentencing Reporter's latest issue on “White-Collar Sentencing” (Vol. 26.1, October 2013). Helpfully, FSR's publisher has made these two articles from this issue available for download without a subscription:

January 22, 2014 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (1) | TrackBack

"Court struggles with restitution for child porn"

The title of this post is the headline of this AP report on this morning's SCOTUS oral argument in Paroline v. United States.  The AP article highlights the Justices' difficulties sorting through all the challenging competing issues in a case that regular readers know I find fascinating.

Similarly, Lyle Denniston at SCOTUSblog has an effective summary of today's argument in this new post which starts and ends this way:

The Supreme Court left no doubt on Wednesday that it is willing to do its part to make sure that victims of child pornography get paid money to offset the harm done to them. But it also found itself very much in doubt about just what that part would be. The answer in the case of Paroline v. United States may depend upon how the Court understands two words: “apportion” and “contribution.”...

The hearing ended where it began: in unresolved complexity.

I hope to find time in the next few days to read carefully and comment upon the substance of the argument today, and everyone can find now at this link the full transcript.

A few (of many) prior posts on Paroline and child porn restitution issues:

January 22, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

January 21, 2014

Lots of new talk about lots of new stufff to talk about at "Marijuana Law, Policy and Reform"

As some readers may already know, my Marijuana Law, Policy and Reform blog is really humming now as a great set of guest-bloggers adding their insights and perspective in that space have been providing lots more original commentary to that blog, a lot of which should be of continuing interest to sentencing fans.  Here is a sampling of some of the new posts from just the past week:

Among lots of other noteworthy matters, the last post linked above notes that tonight's episode of HBO's Real Sports examines pot use in the NFL.  This story about the story provides a preview:

HBO’s acclaimed Real Sports with Bryant Gumbel returns on Tuesday (10 p.m. ET/PT) with a closer look at marijuana use in the NFL....

The enlightening feature, reported by correspondent Andrea Kremer and produced by Chapman Downes, includes interviews with former NFL tight end Nate Jackson (Broncos 2003-2008); former NFL punter Chris Kluwe (Vikings 2005-2012); NFL Senior Vice President of Law and Labor Policy Adolpho Birch; Dr. Raphael Mechoulam of Hebrew University of Jerusalem; and former NFL player Daniel Davis (Real Sports happened to run into him at a Denver area dispensary while they were filming the segment).

According to the HBO report, players estimate that between fifty and sixty percent of today’s NFL players smoke pot. Former Broncos tight end Nate Jackson spoke candidly about self-medicating with marijuana during his playing days in Denver. “I weeded as needed,” Jackson told Kremer. “For me, personally, [marijuana as a painkilling alternative is] very viable. I prefer it. Marijuana was something that helped me, as the season wore on my body would start to break down. I was in a lot of pain.”

The Real Sports report also found that players prefer marijuana for pain management over opiate-based painkillers like Vicodin and Oxycodone which are legal and regularly prescribed by NFL team physicians to help players deal with the inevitable pain and injuries that result from the physically brutal sport.

“For a lot of guys, they see what happens with the older generation of players and how a lot of those guys got addicted to pain pills,” former NFL punter Chris Kluwe told Kremer. “You know - they have alcohol problems. And they're like, ‘Well, you know, is there an alternative? Is there something else we can do?’ And marijuana is an alternative.”...

Beyond pain management and relief, the Real Sports report also explores another potential benefit of marijuana -- effective treatment of traumatic brain injuries (another issue Real Sports has reported on for several years).  Nate Jackson discussed his use of marijuana to help ease concussion symptoms after a blow to his head and neck knocked him out of the second to last game of his career. “The weed helped me,” Jackson told Kremer.

Kremer interviewed Dr. Raphael Mechoulam of Hebrew University of Jerusalem, the doctor who discovered THC in 1964 and who has spent the last 50 years studying marijuana.  Mechoulam has researched marijuana’s efficacy in relieving not only chronic pain and inflammation but how traumatic brain injuries in mice react to marijuana.  Dr. Mechoulam allowed Real Sports to film his team in action as it worked with injured mice.  The results are remarkable.

January 21, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Sports, Who Sentences? | Permalink | Comments (2) | TrackBack

"'Friend to the Martyr, a Friend to the Woman of Shame': Thinking About the Law, Shame and Humiliation"

The title of this post is the title of this new paper by Michael L. Perlin and Naomi Weinstein now available via SSRN. Here is the abstract:

This paper considers the intersection between law, humiliation and shame, and how the law has the capacity to allow for, to encourage, or (in some cases) to remediate humiliation, or humiliating or shaming behavior.  The need for new attention to be paid to this question has increased exponentially as we begin to also take more seriously international human rights mandates, especially -- although certainly not exclusively -- in the context of the recently-ratified United Nations Convention on the Rights of Persons with Disabilities, a Convention that calls for “respect for inherent dignity,” and characterizes "discrimination against any person on the basis of disability [as] a violation of the inherent dignity and worth of the human person..."

Humiliation and shaming, we believe, contravene basic fundamental human rights and raise important constitutional questions implicating the due process and equal protection clauses.  Humiliation and shaming practices include “scarlet letter”-like criminal sanctions, police stop-and-frisk practices, the treatment of persons with mental disabilities in the justice system, and the use of sex offender registries.  Humiliation and shame are detrimental in the ways that lead to recidivism, inhibit rehabilitation, discourage treatment, and injure victims.  They also directly contravene the guiding principles of therapeutic jurisprudence, especially in the context of its relationship to the importance of dignity in the law, and potentially violate international human rights law principles as well.

In this paper, we will explore how humiliation and shaming are bad for all participants in the legal system, and bad for the law itself.  We will urge that humiliating and shaming techniques be banned, and that, this ban will enhance dignity for the entire legal system and society as a whole.  First, we consider the meaning of shame and humiliation.  Then, we briefly discuss principles of therapeutic jurisprudence (TJ) and its relationship to the significance of dignity, and then consider recent developments in international human rights law, both of which are valuable interpretive tools in this conversation. Next, we consider how the United States Supreme Court has considered these concepts in recent cases.  Following this, we consider several relevant areas of law and policy from the perspective of how overt shaming is employed: scarlet letter punishments, use of the police power, treatment of institutionalized persons with mental disabilities and elders, and sex offender registry law.  We then, using a TJ filter and drawing on international human rights law principles, examine why these shaming tactics are contrary to bedrock principles of the legal system: the mandates to honor dignity, to minimize recidivism, and to enhance rehabilitation.

January 21, 2014 in Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Notable early legislative responses to Ohio's recent lethal injection struggles

Ohio GAAs repotted in this new local article, headlined "Legislative Democrats push anti-death penalty bills following controversial execution," at least a few member of the Ohio General Assembly have a few ideas about how the state should respond to its recent execution challenges. Here are the basics:

In the wake of Dennis McGuire's controversial execution last week, legislative Democrats are ramping up efforts to halt —€” or at least modify — the death penalty in Ohio.

State Sen. Edna Brown, a Toledo Democrat, called for an immediate moratorium on the death penalty and announced she would introduce legislation to abolish its practice in the state. Brown sponsored a similar bill in 2011.

In addition, Democratic state Rep. Bob Hagan of Youngstown said in a release that he's introducing a bill that would require the governor and the state'€™s prisons chief to be personally present during all future executions.

Both bills come after McGuire, convicted of raping, choking and stabbing a 22-year-old woman in 1989, was the first person in the United States to be put to death using a new and untried lethal-injection cocktail involving midazolam, a sedative, and hydromorphone, a morphine derivative. McGuire made several loud snorting sounds during his execution last Thursday, which took more than 15 minutes and was one of the longest executions since Ohio resumed using capital punishment in 1999....

In addition, an already-introduced House bill to abolish the death penalty will come before the House Judiciary Committee on Wednesday. House Bill 385 would substitute capital punishment with life imprisonment, with parole options after 20 or 30 years for some of those who plead guilty to or are convicted of aggravated murder.

Cleveland-area Democratic Reps. Dan Ramos of Lorain and Nickie Antonio of Lakewood introduced the legislation last month. Ramos and Antonio have cited reasons such as DNA evidence testing and racial disparities in sentencing as reasons to abolish capital punishment.

All three Democratic bills face an uphill climb in the Ohio General Assembly, as Republicans have significant majorities in both the House and Senate....

The Department of Rehabilitation and Correction will conduct a review of Ohio'€™s death penalty procedures, as is standard policy after every execution, according to department spokeswoman JoEllen Smith. Smith said she wasn'€™t sure when that review would be completed, though she anticipated it would be done by March 19, when Gregory Lott of Cleveland is scheduled to become the next death row inmate to be executed.

Lott, convicted in 1987 of robbing and murdering an 82-year-old East Cleveland man, is also planning to file a federal lawsuit challenging the use of Ohio's new lethal-injection drugs, his attorney said last week.

As this article highlights, a number of political realities likely ensure Ohio is unlikely to abolish the death penalty anytime soon. But the national and international attention garnered by last week's Ohio execution surely means that those looking to repeal or curtail Ohio's capital punishment system will garner a lot more attention in the days and weeks ahead.

While I am not expecting too much of legal consequence to happen in Ohio on the legislative front, I expect there will be a lot of consequential developments in the weeks ahead emerging from the executive and judicial branches.  Governor john Kasich has shown a willingness to use his clemency powers to delay executions or commute death sentences for a number of reasons. And as this press release reveals, the ACLU of Ohio has already publicly urge the Governor to impose a moratorium on executions. Here is how the press release starts: "[On Sunday], the ACLU of Ohio sent a letter to Ohio Governor John Kasich, asking him to use his executive authority to declare an immediate halt to executions in Ohio. The letter comes on the heels of the state’s fourth botched execution in less than ten years."

Om the judicial side, there is still on-going federal litigation over the constitutionality of Ohio's execution methods (as well as a new lawsuit threated by the McGuire family).  Moreover, in the wake of all the new troubles with the new lethal injection protocol, I cannot help but wonder if advocates for death row prisoners or others interested in abolition of the death penalty might now try to bring some state civil rights litigation in order to require the Ohio Supreme Court to consider and addresss how the state is now administering the punishment of death. 

Recent related posts:

January 21, 2014 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

"Review for Release: Juvenile Offenders, State Parole Practices, and the Eighth Amendment"

The title of this post is the title of this informative and interesting new paper by Sarah French Russell now available via SSRN. Here is the abstract:

State parole boards have historically operated free from constitutional constraints when making decisions about whether to release prisoners. Recent Supreme Court decisions subject states to a new constitutional requirement to provide a “meaningful opportunity to obtain release” for at least some categories of juvenile offenders. Using original data collected through a survey, this Article provides the first comprehensive description of existing parole board release procedures nationwide and explores whether these practices comply with the Court's Eighth Amendment mandate.

The Court's recent decisions in Graham v. Florida and Miller v. Alabama prohibit sentences of life without the possibility of release (LWOP) for juvenile offenders in nonhomicide cases and forbid mandatory LWOP sentences in homicide cases. States must now provide nonhomicide juvenile offenders with a “meaningful opportunity to obtain release” and give judges the option of imposing a sentence with the chance of release on homicide offenders. Around the country, state courts, legislatures, and governors have started to respond to Graham and Miller. Yet there is little scholarship focusing on a central issue raised by these cases: What constitutes a meaningful opportunity to obtain release under the Eighth Amendment? The Court has declined to provide detailed guidance on the matter, stating that “[i]t is for the State, in the first instance, to explore the means and mechanisms for compliance.”

Viewed in the context of the Court's earlier Eighth Amendment jurisprudence, the meaningful opportunity for release requirement appears to encompass three distinct components: (1) a chance of release at a meaningful point in time, (2) a realistic likelihood of release for the rehabilitated, and (3) a meaningful opportunity to be heard. For the most part, states have responded to Graham and Miller by making juvenile offenders eligible for release under existing and long-standing parole board procedures. To date, the debate in the states has focused primarily on the first component of the meaningful opportunity requirement-when a juvenile offender should be eligible for release. Most states have paid little attention to whether existing parole board practices satisfy the other two components of the meaningful opportunity requirement. These practices, which were designed for a different purpose, may not offer a realistic chance of release and meaningful hearings for juvenile offenders.

Parole procedures in every state are different, and many parole boards operate under unwritten and unpublished rules. To understand existing practices, I sent a survey to every parole board in the country. The survey results revealed procedures that, while adequate for adult offenders, may not survive Eighth Amendment scrutiny when applied to juvenile offenders under Graham and Miller. Such procedures include (1) preventing prisoners from appearing before decision makers, (2) denying prisoners the right to see and rebut evidence, and (3) limiting the role of counsel. I conclude that some states may not be able to rely on their existing parole board practices to provide a meaningful opportunity for release, and may need to craft special rules for considering release of juvenile offenders serving lengthy sentences.

January 21, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Florida prisons struggling with extra costs of a hearty appetite for religion

This new New York Times article, headlined "You Don’t Have to Be Jewish to Love a Kosher," highlights the extra costs of respecting religious freedoms for the incarcerated. Here are excerpts:

Florida is now under a court order to begin serving kosher food to eligible inmates, a routine and court-tested practice in most states.  But state prison officials expressed alarm recently over the surge in prisoners, many of them gentiles, who have stated an interest in going kosher.

Their concern: The cost of religious meals is four times as much as the standard fare, said Michael D. Crews, who is expected to be confirmed as secretary of the Department of Corrections in March.  “The last number I saw Monday was 4,417,” Mr. Crews said of inmate requests at his recent confirmation hearing before a State Senate committee. “Once they start having the meals, we could see the number balloon.”...

Kosher food in prisons has long served as fodder for lawsuits around the country, with most courts coming down firmly on the side of inmates.  As long as inmates say they hold a sincere belief in Judaism — a deeply forgiving standard — they are entitled to kosher meals, even if takes a little chutzpah to make the request.

“Florida is an outlier,” said Eric Rassbach, deputy general counsel for the Becket Fund for Religious Liberty, which has represented inmates around the country.  “It’s a holdout. I don’t know why it’s being a holdout.  It is strange that Florida, of all places, is placing a special burden on Jewish inmates.  It’s just stubbornness.”

In Florida’s prison system. which faces a $58 million deficit, money is the easy answer for the battle against kosher food.  The cost of three kosher meals in Florida is $7 a day, a big jump from the $1.54 for standard meals, Mr. Crews said.  In New York State, where 1,500 inmates out of about 56,000 keep kosher, the cost of a kosher meal is $5 a person.  In California, where some prisons have kosher kitchens, the price tag is $8, and the meals are served to 0.7 percent of about 120,000 inmates.

Last April, facing an inmate lawsuit, Florida began a pilot program for the religious diet at Union Correctional Facility near Jacksonville. Initially, some 250 inmates signed up, Mr. Crews said. But once other inmates spied the individually boxed lunches, 863 expressed a sudden interest in keeping kosher....

But the question of who gets a kosher meal is tricky.  In all, less than 1.5 percent of the country’s 1.9 million inmates are Jewish, according to the Aleph Institute, a social services organization, and many do not even request kosher meals.  “Who is a Jew?” Mr. Rassbach said. “People disagree about who is a Jew.”

The courts steer clear of that perilous debate.  Instead, inmates need only say they have a “sincerely held” religious belief.  Attempts by prison officials and rabbis to quiz prisoners about the Torah and the rules of keeping kosher were ruled not kosher. Tracing maternal lineage was similarly viewed unfavorably....  Some states, like New York, do nothing to try to discern who is feigning Jewishness.  In California, inmates talk with a rabbi who will gauge, very generally, a prisoner’s actual interest.

But some Jewish groups in Florida are pushing for greater control, which may pose a difficult legal hurdle.  “There should be away to ascertain who really does require a kosher meal for their religious belief,” said Rabbi Menachem M. Katz, director of prison and military outreach for the Aleph Institute in South Florida, “and who is just gaming the system.”

January 21, 2014 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (9) | TrackBack

January 20, 2014

Explaining why I am rooting so hard for "Amy" in Paroline

Oral argument in the fascinating Supreme Court case of Paroline v. United States now is just a couple of days away, and this new AP article provides effective background on the case while also helping to spotlight some reasons I am rooting hard for "Amy" and her advocates to prevail:

The case being argued at the Supreme Court on Wednesday involves a Texas man who pleaded guilty to having images of children engaged in sex acts on his computer.  Doyle Randall Paroline is appealing an order holding him responsible for the full amount of losses, nearly $3.4 million, suffered by the woman known as Amy.  Of the several hundred incriminating images on Paroline's computer, just two were of Amy.

Advocates for child pornography victims say that holding defendants liable for the entire amount of losses better reflects the ongoing harm that victims suffer each time someone views the images online. The threat of a large financial judgment, coupled with a prison term, also might deter some people from looking at the images in the first place, the advocates say.

Thirty-four states, dozens of victims' rights and child advocacy groups, local prosecutors and members of Congress are urging the court to uphold the ruling against Paroline by the New Orleans-based 5th U.S. Circuit Court of Appeals.

No one has intervened on Paroline's behalf. But his lawyer, Stanley Schneider of Houston, said in court papers that there is no link between the restitution ordered by the appeals court and Paroline's conduct. "An award of $3.4 million against an individual for possessing two images of child pornography is punitive and grossly disproportionate," Schneider said....

The Obama administration is trying to steer a middle course. Solicitor General Donald Verrilli Jr. said the government agrees with Amy that her injury comes from the widespread viewing on the Internet of the assaults by her uncle. "The real question is whether ... a court must impose all of Amy's aggregate losses on each defendant. On that issue, Amy and the government take different views," Verrilli told the court. The administration said the correct answer is greater than zero and less than the entire amount and said trial judges should make the determination....

Regardless of the outcome of the court case, Congress could change the law. The U.S. Sentencing Commission recommended that lawmakers consider doing just that to eliminate confusion among federal judges about the right way to calculate restitution....

Since 2005, there have been about 2,000 prosecutions in federal court that, like Paroline's, included images of the rapes, for which Amy's uncle spent about 10 years in prison and paid a few thousand dollars for counseling sessions for Amy.... Courts so far have awarded restitution in 182 cases and Amy has collected $1.6 million. Of that total, $1.2 million came from one man.

Typically, the court-ordered awards and the amounts collected have been much smaller, as little as $50 in one case, according to Justice Department records. Many judges have ordered no payments at all, Marsh said. The restitution law does not allow Amy to receive more than the lifetime estimate of her losses, Marsh said. But until the 5th Circuit ruling, Marsh said, "She has been forced to go around the country endlessly seeking out defendants with assets. It's endless, and it takes a toll on the victim."

If upheld, the ruling would change the equation.  Courts would not have to determine exactly how much harm any one defendant caused Amy.  Instead, all defendants would be liable for the entire outstanding amount, raising the possibility that a few well-heeled people among those convicted might contribute most, if not all, of the remaining restitution. Marsh said such an outcome would be just, and wealthy defendants could fight among themselves about who should pay what. "It's really about shifting the burden from the innocent victim to the people who are responsible," Marsh said.

Long-time readers know that I take a consequentialist view on most sentencing and punishment issues, and I strongly believe better consequences will prevail if all persons convicted of unlawfully downloading Amy's picture are all jointly liable for the full amount of her documented economic losses.  As the AP article suggests, if Amy wins then only the richest porn downloaders will end up paying her the most money in restitution.  But if DOJ's vague approach prevails, the richest porn downloaders will likely end up spending lots of money on lawyers in order to aggressively argue at sentencing that they should not have to pay much or any restitution to Amy or other victims.

More broadly, I actually think better consequences can and will ultimately prevail for future federal defendants convicted of unlawfully downloading child porn if Amy prevails in this case.  This is because I think, in light of the instructions of 18 USC 3553(a), federal judges would in the future be fully justified (and arguably even required) to generally impose a shorter federal prison sentence on a child porn defendant if and whenever that defendant is to be held jointly liable for the full amount of documented economic losses.  (Intriguingly, Doyle Randall Paroline himself got sentenced only to two years in prison, while the average downloader of child porn prosecuted in federal court these days gets a prison term of nearly a decade.)    

In her reporting and commentary on this issue (noted here and here), Emily Bazelon has rightly suggested that having child porn downloaders pay for their crimes through full restitution award (rather than through very lengthy prison terms) makes for better outcomes not only for victims but also for society.  As she has explained:

[J]oint and several liability ... works like this: Other victims following in Amy’s footsteps would target the rich child-pornography defendants.  Then it would be up to those men to find the others who are also legally responsible.  This would allow many more victims to recover than the alternative: The victims have to sue the defendants they can find one by one, while courts award restitution in what would probably be relatively small amounts.  If the Justice Department is really worried about fairness, it could create a compensation fund defendants could pay into for the benefit of more victims.

Money can make a huge difference for victims of sexual abuse.  For Amy [and other like victims], it has meant access to counseling and a safety net when they have struggled with school and work, as they both have at times.  Restitution makes far more sense than the enormously long prison sentences men often serve for collecting child pornography. Congress was right to see the value of restitution.  The Supreme Court should too.  And then lawmakers and judges should also recognize that the prison terms for possession of child pornography have become too harsh.

Because DOJ is not completely on Amy's side, and because some of the more conservative Justices have in the past expressed some constitutional concerns about some victims getting big awards in tort suits, I do not think it a certainty that Amy will prevail in this matter.  But because this is technically a statutory interpretation case, and because the briefs on Amy's side have done such an effective job highlighting reasons to think Congress would want Amy to prevail in this battle of equities, I think she has a pretty good chance to prevail.

A few (of many) prior posts on Paroline and child porn restitution issues:

January 20, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (40) | TrackBack

Fittingly for MLK day, Prez Obama laments class and race disparities from pot prohibition

I MLK am intrigued and pleased to see that the New Yorker has just released this very lengthy article profiling President Obama that has a very interesting small section with quotes from the President concerning modern marijuana policies and reform. Though I expect to cover various aspects of what Prez Obama said a lot more over at Marijuana Law, Policy and Reform in the week ahead, these comments should be of special interest to sentencing fans: 

What clearly does trouble him is the radically disproportionate arrests and incarcerations for marijuana among minorities.  “Middle-class kids don’t get locked up for smoking pot, and poor kids do,” he said.  “And African-American kids and Latino kids are more likely to be poor and less likely to have the resources and the support to avoid unduly harsh penalties.”  But, he said, “we should not be locking up kids or individual users for long stretches of jail time when some of the folks who are writing those laws have probably done the same thing.”  Accordingly, he said of the legalization of marijuana in Colorado and Washington that “it’s important for it to go forward because it’s important for society not to have a situation in which a large portion of people have at one time or another broken the law and only a select few get punished.”

As is his habit, he nimbly argued the other side. “Having said all that, those who argue that legalizing marijuana is a panacea and it solves all these social problems I think are probably overstating the case.  There is a lot of hair on that policy. And the experiment that’s going to be taking place in Colorado and Washington is going to be, I think, a challenge.”

As the title of this post highlights, I think it is valuable and fitting that news of the President of the United States making these points hits the papers on the weekend we honor the work and legacy of Dr. Martin Luther King.  As students of history know, Dr. King was concerned about economic inequallity as well as racial inequality, and I think the stories of modern pot prohiibition reflect both.  More broadly, as I highlight in a new post over at my other blog, titled MLK marijuana mash-up: "I Have A Dream..." we are free at last from pot prohibition, I think MLK's most famous exhortations about freedom and equality are useful to consider at this unique moment of marijuana reform debates.

Some related recent posts (mostly from MLPR):

January 20, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences? | Permalink | Comments (29) | TrackBack

One tale (of thousands) of a juve LWOPer now with a glimmer of hope

Former federal judge and law professor Nancy Gertner authored this notable Boston Globe commentary concerning a former client of hers who might now benefit from how Massachusetts courts are responding to the Supreme Court's new Eighth Amendment jurisprudence.  The piece is headlined "Locking up kids for life?  A new court decision takes a step toward juvenile justice reform," and here are excerpts:

Three decades ago, Edward Palmariello, 17, and his 21-year-old friend Bruce Chambers were arrested in the murder of Edward’s mother, Marion.  Then a defense attorney, I represented Edward at trial. The jury found both men guilty and the sentence was mandatory  —  life in prison without any possibility of parole....

The Commonwealth’s story in court was simple: Edward and his mother fought all the time. He had said things to her like “Shut up or I’m going to cut you up and put you into the toilet bowl,” and he once waved an open switchblade at her....

There was another narrative about Edward and his mother, one the jury never heard. The mother had abused Edward’s sisters and brother.  The abuses were reflected in Department of Social Services records. In fact, each one had moved out  —  “escaped,” as one sister put it — as soon as he or she could.  Edward, the youngest, had no place to go. His mother abused him physically, but when he grew stronger than she was, her abuse became psychological.  Still, as a defense lawyer, I was reluctant to offer the complete DSS records (even if they were admissible).  While they explained the family’s dysfunction, there was a risk that a prosecutor, bent on conviction, would spin them as a motive for murder.

With the first-degree murder conviction, there would be no opportunity for testimony from the social workers who knew the family or even the family members themselves who had “escaped.”  Only one sentence was possible: life without parole. On appeal, the Supreme Judicial Court affirmed Edward’s conviction (one judge dissented).  All other appeals failed.

In most countries, Edward’s sentence would have been impossible.  Juvenile life without parole is prohibited by the UN Convention on the Rights of the Child, a measure that has been ratified by every UN nation except the United States and Somalia (Somalia announced in November that it will ratify).  Edward has spent the past 32 years in jail.  He had no hope, no future.  Perhaps, until now.

In 2012, in Miller v. Alabama, the US Supreme Court held that a mandatory sentence of life in prison without parole on any offender under 18 is contrary to the constitutional prohibition on “cruel and unusual punishments.”  While the decision’s implications were momentous, it focused only on the mandatory nature of the punishment.

But on December 24, 2013, the Supreme Judicial Court of Massachusetts went further.  In Diatchenko v. District Attorney for the Suffolk District, the court held that the state constitution barred the imposition of life without parole altogether for defendants under age 18 at the time they committed murder....

In language that resonates for Edward, the US Supreme Court criticized sentencing that “prevents taking into account the family and the home environment that surrounds [the offender] — from which he cannot usually extricate himself — no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him.” It “disregards the possibility of rehabilitation even when the circumstances most suggest it.”

Edwards’s case, along with some 60 others, will now go before the Massachusetts Parole Board. Will this be a real review or just a Kabuki ritual? Governor Deval Patrick dismissed five of the seven board members after a parolee killed a Woburn police officer in 2010. Parole rates have dropped dramatically. Perhaps that was why three SJC justices wrote a special commentary urging a “real meaningful opportunity to obtain release” for the juveniles affected by the decision. Parole Board, take heed.

At the very least, for Edward Palmariello, the board will finally hear the whole story.

Meanwhile, as this new front-page New York Times article highlights, the stories of hope for juve LWOPers in Massachusetts may be more of an exception than the rule in the wake of Miller.  That article, which is headlined "Juveniles Facing Lifelong Terms Despite Rulings" spotlights that "most states have taken half measures, at best, to carry out the rulings [in Graham and Miller], which could affect more than 2,000 current inmates and countless more in years to come, according to many youth advocates and legal experts."

January 20, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

"Obamacare Is a Powerful New Crime-Fighting Tool"

The title of this post is the headline of this notable recent article from The Atlantic. The subheading highlights its themes: "An astonishing two-thirds of the 730,000 prisoners released each year have substance abuse or mental health problems. But no one has been willing to pay for their treatment — until now."  Here is an excerpt:

An astonishing two-thirds of the 730,000 men and women released from America’s lockups each year have either substance abuse problems, mental health problems, or both. Very often, those problems were largely responsible for getting them locked up in the first place. Most addicted and mentally ill prisoners receive little or no effective treatment while they’re incarcerated or after they’re turned loose, so it’s little surprise that ... they soon wind up back in jail. But for some, that revolving door may stop spinning this year, thanks to a little-noticed side-effect of President Obama’s Affordable Care Act. Obamacare, it turns out, might be a crime-fighting tool.

Numerous studies support the common-sense notion that treating offenders’ drug addictions and mental illnesses helps keep at least some of them from going back to jail. Get that junkie off heroin, and maybe he won’t steal your car stereo for fix money; get that mentally ill homeless person on proper medications, and maybe she can find a job instead of turning tricks in alleys. “It’s not the drug itself, it’s the stealing and robbing they do to get the drug,” says Abbie Zimmerman, a therapist at Transitions Clinic, a program based in San Francisco’s hard-bitten Hunter’s Point area that treats former prisoners (including Sanders, who is now an outreach worker there). “If I can keep them sober, I can keep them out of jail.”

But no one has been willing to pay for such treatment for hundreds of thousands of ex-cons. And they certainly can’t afford it themselves: According to a recent report by the Council of State Governments, the vast majority of released prisoners re-enter society with little money and no health insurance. But now many of those former prisoners are eligible for insurance, courtesy of the federal government.

Among many other reforms, the ACA is drastically expanding Medicaid, the federal insurance scheme for the poor. Previously, able-bodied childless adults were generally not covered by Medicaid, regardless of how impoverished they might have been. But starting this year, any American citizen under age 65 with a family income at or below 138 percent of the federal poverty line — about $25,000 for a family of three — is eligible for Medicaid (at least in the two dozen states that have so far agreed to participate in this aspect of Obamacare). Meanwhile, citizens and legal immigrants earning between 138 percent and 400 percent of the poverty line are now entitled to subsidies to help pay for private insurance. Taken together, those two provisions mean that tens, perhaps hundreds, of thousands of the inmates released every year are now eligible for health insurance, including coverage for mental health and substance abuse services.

Providing treatment to those former prisoners could yield enormous benefits for all of us. The average cost to incarcerate someone for a year is roughly $25,000. That means if only one percent of each year’s released inmates stay out of trouble, taxpayers will save nearly $200 million annually — and the pool of troubled ex-cons looking to steal your car stereo will be that much smaller. “Success in implementing the Affordable Care Act has the potential to decrease crime, recidivism, and criminal justice costs, while simultaneously improving the health and safety of communities,” sums up a recent report by the federal Department of Justice.

It all looks great on paper. But there are significant obstacles to making this work in the real world. One is the simple fact that many former prisoners aren’t even aware of their new entitlements. “I don’t really know what Obamacare is,” says Ernest Kirkwood, a Transitions client who spent 29 years in prison, when I tell him I’d like to talk to him about the new health care regime. “I never read the newspaper.”

Making services available is one thing. Getting people whose judgment isn’t that great in the first place to actually use them is another. Plenty of drug users and mentally ill people don’t want to admit they have a problem. The stigma that persists around mental illness keeps some should-be patients away. Richard Rawson, a professor of psychiatry specializing in substance abuse at the University of California, Los Angeles, points out that an earlier experiment that provided residential treatment to just-released drug offenders didn’t work as well as hoped. “People said, ‘I just got out, I don’t want to be in rehab for another year,’” he says.

January 20, 2014 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (4) | TrackBack

January 19, 2014

Lots of notable reactions to and predictions after Ohio's latest struggles with lethal injection

20141813-firing-squad-2As reported here and here, Ohio's experiment with a new and novel two-drug execution protocol this past week did not look as peaceful as most everyone wants.  While the reaction by the family of the executed murderer is to talk up a possible lawsuit against the state of Ohio, reactions of lots of others are varied as evidenced in some of the quotes found within this sampling of recent media stories:

From the AP here, "Unclear Future for Executions After Ohio's Longest"

From the AP here, "Missouri, Wyoming lawmakers open to allowing executions by firing squad"

From CNN here, "Family, experts: Ohio execution snafu points to flaws in lethal injection"

From the Los Angeles Times here, "Prolonged execution renews debate over death by lethal injection"

From Reuters here, "U.S. states could turn to firing squads if execution drugs scarce"

From the New York Times here, "After a Prolonged Execution in Ohio, Questions Over 'Cruel and Unusual'"

Recent related posts:

January 19, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (9) | TrackBack

Terrific white-collar sentencing event highlighting terrific FSR issue on white-collar sentencing

FsrFor reasons that should be obvious, I may be showing a bit of bias in my positive description of an event in New York City at which I will be speaking this coming Friday and which is promoting this recent white-collar sentencing issue of a publication that I help manage.  Nevertheless, as highlighted by the invitation and links in this announcement of the event, I do not think my inherent bias undermines the validity of my excitement and praise for this event:

The Current State of White-Collar Sentencing 

Please join Proskauer’s White Collar Defense & Investigations Group and the Federal Sentencing Reporter (FSR) for a seminar on criminal sentencing, presented in conjunction with the publication of FSR’s latest issue “White-Collar Sentencing” (Vol. 26.1, October 2013). 

Friday, January 24, 2014 
Registration and Breakfast: 8:00 a.m. - 8:30 a.m. 
Program: 8:30 a.m. - 11:30 a.m. 

Proskauer 
Eleven Times Square (41st Street and 8th Avenue) 
New York, NY 10036
Register here

Program:
Featured speaker Professor Douglas A. Berman, of The Ohio State University Moritz College of Law, author of the nationally acclaimed Sentencing Law and Policy blog, will lead off the program with a discussion of current topics in white-collar sentencing.  This program will feature a review of recent developments in the field, the latest data and statistics, and proposals from distinguished thought leaders on potential improvements to current sentencing policies and procedures.  Our panelists will include current members of the U.S. Sentencing Commission’s Practitioners Advisory Group, academics, and practitioners:

January 19, 2014 in Federal Sentencing Guidelines, Offense Characteristics, Recommended reading, White-collar sentencing | Permalink | Comments (0) | TrackBack