October 25, 2014
"Jury Says Castrated Sex Offender Should Be Freed"
The title of this post is the headline of this notable AP story out of California. Here are the intriguing details:
A Southern California jury on Friday found that a castrated sex offender who preyed on young girls should no longer be considered a sexually violent predator and is eligible for release. Jurors in Orange County determined that Kevin Reilly, 53, does not need to remain locked up at a state mental hospital. He could be released as early as Friday, his lawyer said, but online jail records show he remained in custody as of mid-afternoon.
"There was simply no evidence he was likely to reoffend," said Holly Galloway, deputy public defender. "What the jury did was amazing because they followed the law and that's a hard thing to do with someone with his history, but it's the right thing to do."
Reilly served time in prison for sex offenses committed in the 1980s and 1990s and has been locked up in a state mental hospital since 2000 under a California law that enables authorities to forcibly commit sex offenders they believe will reoffend. He paid to be surgically castrated in 2003 to help control his pedophilia and completed a treatment program for sex offenders in 2010. State-appointed evaluators found he was not likely to reoffend, Galloway said, adding that Reilly also completed a bachelor's degree and master's degree.
Prosecutors argued that Reilly is still dangerous and that the effects of his castration, which aimed eliminate his sex drive, can be mitigated through testosterone injections. Michael Carroll, deputy district attorney, said Reilly did not confess to molesting one of his victims until three years ago and there were conflicting reports about what he told his evaluators and the court.
"I don't think he was honest during his treatment," Carroll said. "I think he continued to lie and attempted to manipulate because his ultimate purpose, I think, is to get out of the hospital, not necessarily to prevent creating any future victims." Reilly served time for committing lewd acts on four young girls over more than a decade, and later conceded he had abused at least three others, Carroll said. Most of the girls were between 4 and 8 years old.
He is required to register as a sex offender once he is released, and is planning to move to Utah, where he will participate in an outpatient treatment program for sex offenders and look for an accounting job, Carroll said.
Stories like this one provide support for my general view that juries, serving often as the conscience of a community, can and should be more often trusted to make difficult sentencing-type determinations and should not be relegated only to serving as a limited (and infrequently used) fact-finder in the operation of modern criminal justice systems.
October 25, 2014 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack
Due to Alleyne, Kansas Supreme Court requires resentencing of murderer of abortion provider
As reported in this local article, headlined "Kansas Supreme Court vacates Roeder's 'Hard 50' sentence," the top court in the Sunflower State reversed a state mandatory minimum sentence in a high-profile murder case. Here are the details:
The Kansas Supreme Court on Friday upheld the premeditated first-degree murder conviction of Scott Roeder, convicted in the 2009 church killing of Wichita abortion provider Dr. George Tiller, but vacated his “Hard 50” life sentence.
In ordering Roeder’s sentence remanded to the Sedgwick County District Court, the Kansas high court noted the 2013 U.S. Supreme Court decision that deemed a sentence of 50 years without the possibility of parole must be levied by a jury as opposed to the trial judge.
The Kansas court has vacated and remanded at least five other Hard 50 sentences in light of the U.S. Supreme Court decision in Alleyene vs. United States....
The court rejected all of Roeder’s other arguments in his bid for a new trial. Among those arguments was that Sedgwick County District Court Judge Warren Wilbert declined to allow Roeder to present a voluntary manslaughter defense based on the “imperfect defense of others” concept. Roeder never denied at trial that he intended to shoot and kill Tiller in the vestibule of the doctor’s Wichita church before services on Sunday, May 31, 2009, but said he did so to prevent the abortion provider from taking the lives of unborn children.
Roeder, who testified that his anti-abortion activities began after his 1992 conversion to Christianity, said his frustration grew after Tiller was acquitted in 2009 of 19 charges brought by former Kansas Attorney General Phill Kline alleging that Tiller broke state law in performing late-term abortions. Roeder testified that upon learning of Tiller's acquittal, he believed that “nothing was being done” and the legal process had been exhausted....
But the district court ruled that Roeder wasn’t entitled to use a necessity defense, based in part on a previous Kansas Supreme Court ruling — also involving an anti-abortion case — that a person isn’t entitled to a such a defense if the activity they were trying to stop was a legal activity....
“Even for Roeder's professed purpose of stopping all abortions, not just illegal abortions, the Draconian measure of murder was not the only alternative,” Justice Lee Johnson wrote in the unanimous decision. The district court also ruled, and the Supreme Court agreed, that Roeder wasn’t entitled to a voluntary manslaughter defense because no imminent threat existed on that Sunday morning to justify the use of lethal force....
The Kansas Legislature, responding to the U.S. Supreme Court decision in Alleyene, rewrote the Kansas law on Hard 50 sentencing during a special session in 2013. The new law says a jury must determine whether special circumstances exist to impose the increased minimum sentence. But how such new sentencing will be conducted has yet to be determined, as none has yet been conducted in the cases where a Hard 50 sentence has been vacated. Sedgwick County District Attorney Mark Bennett said Friday after the Roeder decision that he intended to conduct such a hearing.
The full 50+ page opinion of the Kansas Supreme Court in Kansas v. Roeder, No. 104,520 (Kansas Oct. 24, 2014), is available at this link.
October 24, 2014
Election season round-up of posts on pot politics from Marijuana Law, Policy and Reform
For various reasons and in various ways, I find the politics of modern marijuana reform even more interesting than its policies and practicalities. Consequently, a number of my recent posts at Marijuana Law, Policy and Reform have focused on political developments and discourse in those states with significant reform proposals on the ballot in 2014. As this election season now kicks into its final stretch, I thought it useful to collect some of these posts in this space:
As time and energy permits, I am hoping soon to start a series of posts on pot politics circa 2014 over at Marijuana Law, Policy and Reform in order to explain why I think the results of this election season in a Alaska, Florida and Oregon are likely to have a huge impact on marijuana policy and national politics in the coming years.
Unpacking the reasons given for public support and opposition to the death penalty
Gallup now has published this intriguing piece, headlined "Americans: 'Eye for an Eye' Top Reason for Death Penalty," which provides some interesting additional insights concerning Gallup's latest polling data on support for capital punishment (reported here). Here are some of the highlights:
Americans who favor the death penalty most often cite "an eye for an eye" as the reason they hold their position, with 35% mentioning it. "Save taxpayers money" and "they deserve it" tie as the second-most-popular reasons Americans volunteer in this open-ended measure, at 14% each....
This is the fourth time Gallup has probed Americans to state, in their own words, why they hold the position they do on the death penalty. Americans who say they support the death penalty have given a variety of responses over the years, but the biblical phrase "an eye for an eye," or retaliation, consistently has been named as the No. 1 reason why the death penalty should be applied. However, this reason's pre-eminence has waned since Gallup first asked this question in 1991, when half of Americans who favor the death penalty mentioned it....
While a majority of Americans tilt in favor of the death penalty, the one in three Americans who oppose it also have a diversity of views as to why the ultimate penalty should not be used. "Wrong to take a life" has been the top reason for opposing it since 1991, by comfortable margins.
In two of the three times Gallup has asked this question, "persons may be wrongly convicted" has been the No. 2 justification Americans give for opposing the death penalty, along with reasons grounded in religious beliefs, including that "punishment should be left to God." Yet "wrong to take a life" is still the most popular open-ended response by a more than 2-to-1 margin.
Over at Crime & Consequences, Kent Scheidegger has an extended discussion of what these results should help us understand about modern death penalty perspectives and arguments. Here is how that post finishes up:
Most folks make up their minds on justice and morality. These positions are largely undebatable. One who believes that executing Ted Bundy was fundamentally right and reducing Charles Manson's sentence to life was fundamentally wrong isn't going to change his mind, and the person who believes the opposite isn't going to change his either.
The utilitarians are a minority, but a substantial one. That is where the people who might change their minds based on data and arguments are, so that is where the arguments are directed.
ACLU flies suit against Florida county's latest sex offender residency restrictions
As reported in this local article, headlined "ACLU sues over rule on where sex offenders can live in Miami-Dade," a notable new lawsuit has been brought against a community that has a long sad history of difficulties with sex offender residency realities. Here are the details:
For five years, Miami-Dade County’s sex offender law has sparked national headlines, as homeless parolees have been forced to move from street corners to parking lots because of a law that prohibits them from squatting near public spaces where children gather. Now, the dozens of homeless sex offenders — shuffled from under the Julia Tuttle Causeway to a Shorecrest street corner and finally to a parking lot near train tracks and warehouses just outside Hialeah — have a voice arguing on their behalf.
On Thursday, the national chapter of the American Civil Liberties Union filed a lawsuit in federal court reasoning that Miami-Dade County and the state Department of Corrections have violated the offenders’ basic rights to personal safety, and to maintain a home. The suit doesn’t name the ACLU’s clients, referring to them as John Doe 1, 2 and 3.
“It undermines public safety. It’s harder to find a job and maintain treatment. Housing stability is just as critical to these folks as to anyone else,” said Brandon Buskey, staff attorney for the Criminal Law Reform Project at the ACLU in New York City.
But the man behind the controversial county ordinance said no one has the right to demand where they live. Ron Book, the powerhouse state lobbyist and chair of the Miami-Dade Homeless Trust, said the courts have upheld the residency restrictions, and the ACLU is simply regurgitating an issue that’s been dealt with. “The U.S. Supreme Court has said they’re entitled to live places that don’t endanger the health, safety and welfare of law-abiding citizens of the U.S. But they’re entitled to take their $350 to the courthouse,” Book said of the ACLU. “I don’t support those with sexual deviant behavior living in close proximity to where kids are.”
The 22-page lawsuit, filed in the U.S. Court’s Southern District, calls the county ordinance vague, says it doesn’t allow sex offenders their due process, and adds that it leaves them in a vulnerable position and unsafe. “These individuals, who frequently subsist on meager incomes after being released from prison, are unable to locate stable, affordable housing in Miami-Dade County. This transience is primarily because the ordinance arbitrarily renders off-limits broad swaths of housing,” according to the complaint....
At the center of the battle between the ACLU and Miami-Dade is a law approved in 2010 called the Lauren Book Safety Ordinance. Lauren Book, Ron Book’s daughter, was sexually molested by a trusted nanny for six years, starting when she was 11. Lauren Book-Lim, now married and 29, is an advocate for the sexually abused. The 2010 ordinance was created after nearly 100 offenders were sent scrambling from squalid living conditions under the Julia Tuttle Causeway. The new law doesn’t allow offenders on parole within 2,500 feet of schools, parks, bus stops, or any other place children might congregate. Before the law, Miami-Dade followed a less restrictive state-created 1,000-foot law.
But the county ordinance had unintended consequences: It left sex offenders with few living options and almost immediately became a hot-button issue around the nation, even the world. There’s even a Wikipedia page about it.
Miami-Dade’s sexual offender homelessness issue first came to light in late 2009, when images of 92 homeless sex offenders living in plywood and cardboard sleeping quarters tucked under the Julia Tuttle Causeway at the height of the recession were splashed across TV. At the time, the county was still following the 1,000-foot state law.
Though the homeless offenders had been living there for about three years, embarrassed officials put up “No Trespassing” signs under one of the main causeways linking Miami and Miami Beach, and tore down the rickety structures. A promise to spend $1 million to find housing for the offenders didn’t solve the problem. The new, tougher, 2,500-foot ordinance was created mainly because of the Julia Tuttle fiasco....
Howard Simon, executive director of the Florida chapter of the ACLU said no entity should be allowed to strip anyone of their basic rights and force them into “dangerous and squalid conditions.”
“This is the second chapter of the same sad story,” he said. “The county provoked international outrage when it forced people to live under the Julia Tuttle bridge. Now it’s forcing people to live alongside railroad tracks.”
More details about the lawsuit and links to the filings are available at this ACLU page.
October 24, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (11) | TrackBack
Split Minnesota Supreme Court rules lenient sentence in rape case was abuse of discretion
As reported in this local article, headlined "Minnesota Supreme Court criticizes probation sentence in rape case," the top appellate court in Minnesota recently took the unusual step of overruled a trial judge's sentencing decision as an abuse of discretion. Here are the details:
In a rare and harshly worded ruling, the Minnesota Supreme Court said Wednesday that a lower court judge erred in sentencing a particularly violent rapist to probation rather than the recommended 12 years in prison.
Justice David Lillehaug opened his 21-page opinion by saying that district courts have a great deal of discretion in sentencing. And the state high court rarely holds that it has been abused, he said. “But rarely is not never,” he continued. “This is such a rare case.”
The state Supreme Court vacated the sentence of 30 years’ supervised probation given to Jose Arriaga Soto Jr. Polk County District Judge Jeffrey Remick now must conduct additional fact-finding on whether the recommended 12-year sentence should be imposed or if a departure from the guidelines is justified.
Soto was 37 when he beat and raped a woman for two hours after drinking all night in an East Grand Forks apartment in 2012. Soto pleaded guilty to first-degree criminal sexual conduct. A co-defendant who was involved in the rape to a lesser degree than Soto received 12 years in prison, the opinion noted in its many criticisms of the ruling.
A presentencing report said Soto had minimized his actions without taking responsibility and blamed the victim. At his sentencing, he apologized to her. The opinion notes, in a tempered outrage, the horrors of the assault for the victim: “Soto committed a forcible and violent assault against an intoxicated and thus particularly vulnerable person. The assault lasted approximately 2 hours and the victim was repeatedly subjected to multiple penetrations by two men. Soto slapped the victim’s face, choked her, and caused several injuries.”
The opinion noted the Legislature and the Sentencing Guidelines Commission have determined a sentence of 12 years in prison is “presumed to be appropriate” for someone with Soto’s criminal history who commits such a rape. The victim’s vulnerability, the multiple forms of penetration and other particular cruelty that may be involved suggests that an upward departure on the case could have been appropriate, the opinion says. The opinion also noted that Soto’s co-defendant, Ismael Hernandez, was “arguably less culpable than Soto — he left the room shortly after the sexual assault began,” but he went to prison for the presumptive sentence of 12 years....
Three of the seven justices dissented from Lillehaug’s opinion. Alan Page wrote that the district court relied on factors generally recognized by the higher court as potentially relevant considerations in determining whether probation was appropriate for Soto. “While another [district] court or the members of our court might have arrived at a different conclusion, that alone does not make this situation the ‘rare case’ warranting our intervention,” wrote Page, who was joined in his dissent by Chief Justice Lorie Gildea and G. Barry Anderson....
Even though probation wasn’t recommended in Soto’s pre-sentence report by a probation officer or an evaluator from a sex offender treatment program, Remick placed him on supervised probation for 30 years. The judge emphasized Soto’s age, lack of serious criminal record and family support. He also said the crime was primarily caused by alcohol and that Soto’s attitude in court was largely respectful and that “this particular type of event seems largely out of character.”
Lillehaug’s opinion challenged all the factors Remick listed for Soto’s amenability to probation, finding that he drew false or inappropriate conclusions in considering them. He said the judge should have argued that Soto was “particularly” amendable, the legal standard used to justify the departure of staying a presumptive sentence.
The full majority and dissenting opinion in Minnesota v. Soto, No. A13-0997 (Minn. Oct. 22, 2014), can be accessed at this link.
October 24, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack
October 23, 2014
"How Changes in American Culture Triggered Hyper-Incarceration: Variations on the Tazian View"
The title of this post is the title of this notable new paper by Christopher Slobogin now available via SSRN. Here is the abstract:
American imprisonment rates are far higher than the rates in virtually every Western country, even after taking into account differing rates of crime. The late Professor Andrew Taslitz suggested that at least one explanation for this puzzle is the relative lack of “populist, deliberative democracy” in the United States.
This article, written for a symposium honoring Professor Taslitz, examines that thesis from a comparative perspective, looking in particular at how differences between American and European attitudes toward populism, capitalism, religiosity, racial attitudes and proceduralism may have led to increased incarceration rates. It also tries to explain another puzzle that has received little attention: why these cultural differences, which have existed for some time, only had an impact on incarceration rates after the 1960s.
Pope Francis now advocating for total abolition of LWOP sentences as well as the death penalty
As reported in this story from the Catholic News Service, the leader of the Catholic Church can now be added to the list of persons vocally advocating against life without parole sentences. Here are the details:
Pope Francis called for abolition of the death penalty as well as life imprisonment, and denounced what he called a "penal populism" that promises to solve society's problems by punishing crime instead of pursuing social justice.
"It is impossible to imagine that states today cannot make use of another means than capital punishment to defend peoples' lives from an unjust aggressor," the pope said Oct. 23 in a meeting with representatives of the International Association of Penal Law.
"All Christians and people of good will are thus called today to struggle not only for abolition of the death penalty, whether it be legal or illegal and in all its forms, but also to improve prison conditions, out of respect for the human dignity of persons deprived of their liberty. And this, I connect with life imprisonment," he said. "Life imprisonment is a hidden death penalty." The pope noted that the Vatican recently eliminated life imprisonment from its own penal code.
According to the Catechism of the Catholic Church, cited by Pope Francis in his talk, "the traditional teaching of the church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor," but modern advances in protecting society from dangerous criminals mean that "cases in which the execution of the offender is an absolute necessity are very rare, if not practically nonexistent."...
The pope denounced the detention of prisoners without trial, who he said account for more than 50 percent of all incarcerated people in some countries. He said maximum security prisons can be a form of torture, since their "principal characteristic is none other than external isolation," which can lead to "psychic and physical sufferings such as paranoia, anxiety, depression and weight loss and significantly increase the chance of suicide." He also rebuked unspecified governments involved in kidnapping people for "illegal transportation to detention centers in which torture is practiced."
The pope said criminal penalties should not apply to children, and should be waived or limited for the elderly, who "on the basis of their very errors can offer lessons to the rest of society. We don't learn only from the virtues of saints but also from the failings and errors of sinners."
Pope Francis said contemporary societies overuse criminal punishment, partially out of a primitive tendency to offer up "sacrificial victims, accused of the disgraces that strike the community." The pope said some politicians and members of the media promote "violence and revenge, public and private, not only against those responsible for crimes, but also against those under suspicion, justified or not."
He denounced a growing tendency to think that the "most varied social problems can be resolved through public punishment ... that by means of that punishment we can obtain benefits that would require the implementation of another type of social policy, economic policy and policy of social inclusion." Using techniques similar to those of racist regimes of the past, the pope said, unspecified forces today create "stereotypical figures that sum up the characteristics that society perceives as threatening."
Gallup polling shows "Americans' Support for Death Penalty Stable"
Gallup has this new report highlighting that "[s]ix in 10 Americans favor the death penalty for convicted murderers, generally consistent with attitudes since 2008." Here is more:
Americans' support for the death penalty has varied over time, but apart from a single reading in 1966, the public has consistently favored it. Support ebbed from the 1960s to the mid-1970s, when the application of the death penalty was questioned and ultimately led to the Supreme Court's invalidating state death penalty laws. Subsequent to that, newly written laws passed constitutional muster and states began to use the death penalty again in the late 1970s, with support among Americans increasing to 70% or more in the mid-1980s to the late 1990s.
The broader trend over the last two decades has been diminished support for the death penalty, including a 60% reading last year, the lowest since 1972.
Over the last two decades, Democrats' support for the death penalty has dropped significantly, from 75% to 49%. Now, Democrats are divided on whether it should be administered to convicted murderers. Republicans' and independents' support is also lower now -- down nine and 18 percentage points, respectively -- though both groups still solidly favor the death penalty.
Gallup's long-standing question asks about basic support for the death penalty, but does not explicitly mention an alternative punishment for murderers. Gallup separately asks Americans to choose between the death penalty and "life imprisonment with absolutely no possibility of parole" as the better punishment for murder. Support for the death penalty has been significantly lower using this approach, but Americans still tilt in favor of it by 50% to 45%. These attitudes are similar to recent years, but show reduced support for the death penalty from the 1980s and 1990s.
Americans' support for the death penalty has stabilized at a lower level than was the case prior to 2008, and is well below the highs from the mid-1980s to mid-1990s. And in recent years the public has shown only a slight preference for the death penalty over life imprisonment as the better penalty for murder. These trends toward diminished support seem to be reflected in state death penalty laws, as six U.S. states have abolished the death penalty since 2007, and no new states have adopted it.
Democrats are mostly responsible for this shift in attitudes, and thus it is not surprising that most of the states that have abolished the death penalty in recent years are Democratic leaning. The death penalty is another example of how Democrats' and Republicans' opinions on political matters have become increasingly divergent compared with recent decades, including their views of the job the president is doing and on issues such as global warming and labor unions.
October 22, 2014
Graphic representation of female prisoners around the world
I just tripped across this interesting piece and infographic published last month via Forbes. The piece is headlined "Nearly A Third Of All Female Prisoners Worldwide Are Incarcerated In The United States," and here is the text that goes along with the infographic:
According to the International Centre for Prison Studies, nearly a third of all female prisoners worldwide are incarcerated in the United States of America. There are 201,200 women in US prisons, representing 8.8 percent of the total American prison population.
China comes a very distant second to the United States with 84,600 female prisoners in total or 5.1% of the overall Chinese prison population. Russia is in third position -- 59,000 of its prisoners are women and this comes to 7.8 percent of the total.
Across the world, 625,000 women and children are being held in penal institutions with the female prison population growing on all five continents.
"The Death Penalty’s 'Finely Tuned Depravity Calibrators': Fairness Follies of Fairness Phonies Fixated on Criminals Instead of Crimes"
The title of this post is the title of this new article by Lester Jackson available via bepress SelectedWorks. Here is the abstract:
It has been loudly and repeatedly proclaimed by opponents that capital punishment is “unfair.” In their view, it is unfair because (1) only some murderers receive the ultimate sentence and (2) they are not the most deserving. Underlying this view is the remarkable assumption that fairness is subject to “fine tuning” and “moral accuracy.”
It is argued here that this assumption is indefensible both in theory and in practice. As a theoretical matter, it is insupportable to suggest that matters of conscience, right and wrong, are subject to calibration or “accuracy.” Right and wrong are not determined in the same manner as taking blood tests. Moreover, and this lies at the heart of the fallacy, there simply is no agreement upon what is fair punishment for unlawful intentional killing. Regarding the death penalty, the values chasm is unbridgeable.
In practice, this is clearly demonstrated by the considerations employed by those who allege unfairness. Using chicanery, outright falsehood and abuse of power, they have a laser focus on convicted criminals with no concern for past -- and future -- victims. It is easy to worry about criminals when the suffering of victims is left out of so-called fairness calibrations. When the assessment of fairness is confined to comparing the fate of one criminal against another, the reductio ad absurdum is that there should be no punishment for any violent crime.
This is the inevitable result of what is nowhere found in the actual written Constitution but, nevertheless, has been ordered by anti-capital punishment United States Supreme Court justices: “individualized sentencing.” That mandate, which places a heavy focus upon a criminal’s background and record, should be reconsidered.
Penal codes make certain conduct criminal. It is conduct that should be the prime (and perhaps exclusive) consideration. In determining punishments, the focus should be on crimes and not on the criminals who commit them. Based on such determinations, another view of fairness is presented.
Does new DOJ appointee want to decriminalize all drug possession ... and would that be so bad?
The questions posed by the title of this post are prompted by this recent commentary authored by Cully Stimson and titled "The New Civil Rights Division Head Wants to Decriminalize Possession of All Drugs." Here are excerpts:
So who supports decriminalizing cocaine, heroin, LSD, methamphetamine, ecstasy and all dangerous drugs, including marijuana? No, it’s not your teenage nephew. It’s President Obama’s new acting head of the Justice Department’s Civil Rights Division, Vanita Gupta. In 2012, Gupta wrote that “states should decriminalize simple possession of all drugs, particularly marijuana, and for small amounts of other drugs.” (Emphasis mine).
Last week, President Obama appointed Vanita Gupta to the position of acting head. According to the Washington Post, the administration plans to nominate her in the next few months to become the permanent assistant attorney general for the Civil Rights Division. Her views on sentencing reform – a bi-partisan effort in recent years – have earned her qualified kudos from some conservatives. But her radical views on drug policy – including her opinion that states should decriminalize possession of all drugs (cocaine, heroin, LSD, ecstasy, marijuana etc.) should damper that support of those conservatives, and raise serious concerns on Capitol Hill....
To begin, she believes that the misnamed war on drugs “is an atrocity and that it must be stopped.” She has written that the war on drugs has been a “war on communities of color” and that the “racial disparities are staggering.” As the reliably-liberal Huffington Post proclaimed, she would be one of the most liberal nominees in the Obama administration.
Throughout her career, 39-year old Gupta has focused mainly on two things related to the criminal justice system: first, what she terms draconian “mass incarceration,” which has resulted in a “bloated prison population, and second, the war on drugs and what she believes are its perceived failures.
She is particularly open about her support for marijuana legalization, arguing in a recent CNN.com op-ed that the “solution is clear: …states could follow Colorado and Washington by taxing and regulating marijuana and investing saved enforcement dollars in education, substance abuse treatment, and prevention and other health care.”...
But Gupta does not stop with marijuana. In calling for all drugs to be decriminalized – essentially legalizing all dangerous drugs – Gupta displays a gross lack of understanding of the intrinsic dangers of these drugs when consumed in any quantity.
Heroin, LSD, ecstasy, and methanqualone are Schedule I drugs, which are defined as “the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence.” Cocaine, methamphetamine, Demerol and other drugs are Schedule II drugs, defined as “drugs with a high potential for abuse…with use potentially leading to severe psychological or physical dependence.”
Sound public policy must be based on facts, not radical unsafe, and dangerous theories.
I concur 100% with the statement at the end of this commentary that "sound public policy must be based on facts," and that it why I am more than a bit troubled that this commentary quite false asserts that Gupta's seemingly reasonable suggestion that persons should not be deemed criminals for possessing a small amount of a narcotic is tantamount to advocacy for "legalizing all dangerous drugs."
The term "decriminalize" in this context means to treat in a less-serious regulatory manner like we treat traffic offenses. Nobody would assert that we have "essentially legalized" all speeding and other traffic offenses because we only respond to the offense with fines and limited criminal sanctions. Likewise, advocacy for decriminalizing simple possession of small amounts of drugs is not the equivalent of endorsing a fully legalized marketplace for drugs comparable to what we are seeing in a few states now with marijuana.
That all said, I think Vanita Gupta's suggestion that states decriminalize simple possession of drugs as a way to de-escalate the drug war, as well as Cully Stimson's obvious concerns with such a suggestion, are very legitimate issues for engaged political and public policy debate. (For the record, I would generally support most state drug-decriminalization efforts, though I also would generally advocate that criminal sanctions kick in based on possession of larger dealer-size quantities of certain drugs.) I am pleased to see this commentary, even in a effort to assail a new DOJ nominee, start to bring overdue attention to these important modern drug-war issues. But I hope in the future Mr. Stimson and others will make and understand the important distinction between advocating for decriminalization and advocating for full legalization.
October 22, 2014 in Drug Offense Sentencing, Offense Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (7) | TrackBack
Seventh Circuit affirms stat-max 90-year sentence for child molester despite ugly childhood
An interesting Seventh Circuit sentencing opinion yesterday in US v. Horton, No. 14-1559 (7th Cir. 2014) (available here), highlights that a horrible criminal offense can (and often likely) will lead to an extremely long prison sentence even when a defendant can presenting evidence of an unusual (and seemingly mitigating) personal history. Here are the basics of the defendant's crime and his personal history as discussed in the Horton opinion:
During a 9-month period while Horton was employed at Three Tigers Karate in Belleville, Illinois, Horton created 37 videos depicting himself engaging in sexually explicit conduct with three of his male students (ages 6,7,and 10),and another video showing himself trying to convince another student (age 7) to display his genitals. Horton created the videos in various places: his home, the karate studio, a public park, and the San Antonio home of one the victims....
During his formative years, Horton recounted to [psychologist] Dr. Cueno, his mother worked as a stripper and escort and would leave pornographic magazines, sex toys, and drug paraphernalia strewn around the house. His father was as an alcoholic and drug abuser. Horton watched a XX-rated movie when he was seven and acted out what he saw in the movie by having oral sex with other children. In first grade he was forced to perform oral sex on a classmate, and he began having consensual intercourse when he was 12. According to Dr. Cueno, the “roots for [Horton’s] difficulties can be traced back to a childhood where he was sexualized at an early age, had little stability, and was raised by a drug abusing, stripper/escort mother who provided him with little, if any stability.”
And here is how the Horton court explains its conclusion that a statutory maximum sentence of 90 years in prison was not substantively unreasonable in light of these facts and factors:
Horton has not demonstrated that his de facto life sentence is unreasonable. Although a sentence that is effectively for life “is not to be ordered lightly,” we have upheld such sentences where the sentencing judge recognized “the likelihood of a defendant’s death in prison, but concluded that other factors warranted the particular sentence.” United States v. Vallar, 635 F.3d271,280 (7th Cir. 2011).... Here,the district court appropriately weighed Horton’s age and difficult upbringing,see 18 U.S.C. § 3553(a)(1), against the “extremely serious nature of this crime” and the vulnerability of the victims, see id. § 3553(a)(1), (a)(2)(A); New York v. Ferber, 458 U.S. 747, 758–60 & n.9–10 (1982), the need to protect the public from a dangerous child molester, see 18 U.S.C. § 3553(a)(2)(A),(C), and the availability of sex-offender treatment in prison, see id. § 3553(a)(2)(D). And though Horton would have preferred the district court to have given more weight to his dysfunctional childhood, the court had the discretion to assign it less weight than the other § 3553(a) factors.
October 21, 2014
"Skewed Justice: Citizens United, Television Advertising and State Supreme Court Justices’ Decisions in Criminal Cases"
The title of this post is the title of this intriguing new empirical study authored by Joanna Shepherd and Michael Kang. Here is the study's summary:
The explosion in spending on television attack advertisements in state supreme court elections accelerated by the Citizens United decision has made courts less likely to rule in favor of defendants in criminal appeals. State supreme court justices, already the targets of sensationalist ads labeling them “soft on crime,” are under increasing pressure to allow electoral politics to influence their decisions, even when fundamental rights are at stake.
Citizens United (which removed regulatory barriers to corporate electioneering) has fundamentally changed the politics of state judicial elections. Outside interest groups, often with high-stakes economic interests or political causes before the courts, now routinely pour millions of dollars into state supreme court elections. These powerful interests understand the important role that state supreme courts play in American government, and seek to elect justices who will rule as they prefer on priority issues such as environmental and consumer protections, marriage equality, reproductive choice and voting rights. Although their economic and political priorities are not necessarily criminal justice policy, these sophisticated groups understand that “soft on crime” attack ads are often the best means of removing from office justices they oppose.
This study’s two principal findings:
The more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to vote in favor of criminal defendants. As the number of airings increases, the marginal effect of an increase in TV ads grows. In a state with 10,000 ads, a doubling of airings is associated on average with an 8 percent increase in justices’ voting against a criminal defendant’s appeal.
Justices in states whose bans on corporate and union spending on elections were struck down by Citizens United were less likely to vote in favor of criminal defendants than they were before the decision. Citizens United changed campaign finance most significantly in 23 of the states where there were prohibitions on corporate and union electioneering prior to the decision. In these states, the removal of those prohibitions after Citizens United is associated with, on average, a 7 percent decrease in justices’ voting in favor of criminal defendants.
The study is based on the work of a team of independent researchers from the Emory University School of Law. With support from the American Constitution Society, the researchers collected and coded data from over 3,000 criminal appeals decided in state supreme courts in 32 states and examined published opinions from 2008 to 2013. State supreme courts are multi-judge bodies that decide appeals collectively by majority vote; the researchers coded individual votes from over 470 justices in these cases. These coded cases were merged with data from the Brennan Center for Justice reporting the number of TV ads aired during each judicial election from 2008 to 2013. A complete explanation of this study’s methodology is below.
The findings from this study have several important implications. Not only do they confirm the influence of campaign spending on judicial decision making, they also show that this influence extends to a wide range of cases beyond the primary policy interests of the contributors themselves. Even more troubling, the findings reveal that the influence of money has spread from civil cases to criminal cases, in which the fundamental rights of all Americans can be at stake.
Koch Industries give "major grant" to NACDL to help with indigent defense
I noted in this post back in April that the Koch Brothers have a history of supporting criminal justice reform groups and efforts. That interesting story now has another interesting chapter as evidence by this new press release headlined "NACDL Selected to Receive Significant Grant from Koch Industries, Inc. to Address Nation's Profound Indigent Defense Crisis." Here is how the press release gets started:
The National Association of Criminal Defense Lawyers (NACDL), the nation's preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing, has been selected by Koch Industries, Inc. to receive a major grant in support of NACDL's efforts to address the nation's profound indigent defense crisis.
There are two components to this generous and critical initiative:
- Significant expansion of access to training through an ambitious combination of scholarship support for indigent defenders, web-based training via the Internet, and targeted on-site training for indigent defense providers who lack adequate resources to provide comprehensive continuing education for line attorneys and supervisors.
- Examination of state level indigent defense delivery systems in order to ascertain strengths that can be replicated elsewhere as well as weaknesses and the ways in which those can be rectified.
Both components will seek to achieve the goals set forth in the American Bar Association's Ten Principles of a Public Defense Delivery System, which are widely recognized as providing a comprehensive framework for the effective delivery of legal services for the indigent accused.
Arizona prosecutors getting started at second (costly) run at death sentence for Jodi Arias
A high-profile (and high-cost) capital case starts its next big phase as reported in this new AP article headlined "Opening statements expected in Jodi Arias sentencing retrial." Here are the basics:
Jurors in Phoenix will once again be asked to decide whether Jodi Arias should be executed for the gruesome murder of her former boyfriend. Lawyers are expected to make opening statements Tuesday at the sentencing retrial, more than a year after a jury found her guilty of killing Travis Alexander in June 2008. The first jury deadlocked on whether to sentence her to life imprisonment or death.
A new jury that was picked over the past several weeks will be sworn in as the former waitress tries to make another case that her life should be spared. They won't consider whether or not she's guilty -- that's already been decided. The retrial is expected to last into December....
Arias stabbed and slashed Alexander nearly 30 times, slit his throat so deeply she nearly decapitated him and shot him in the forehead. She left his body in his shower where friends found him about five days later at his suburban Phoenix home. She acknowledged she killed Alexander, but claimed it was self-defense after he attacked her. Prosecutors said it was premeditated murder carried out in a jealous rage after the victim wanted to end their affair and planned a trip to Mexico with another woman.
Weeks after Arias was convicted, the jury failed to reach a unanimous decision on her punishment. Her attorneys have since sought, unsuccessfully, to dismiss the death penalty as an option. If another deadlock occurs, the death penalty would automatically be removed as an option, leaving a judge to sentence Arias to one of two options: life in prison or life in prison with the possibility of release after 25 years.
The sentencing retrial will be a mini-trial of sorts to get a fresh jury up to speed on the case. Four hundred people were called as prospective jurors. Many of them were cut after they said they either made up their minds about the case or knew too much to be impartial. Some jurors cited their objection to the death penalty.
At her last trial, she testified for 18 days, describing for jurors an abusive childhood, cheating boyfriends, dead-end jobs, a shocking sexual relationship with Alexander, and her contention that he was physically abusive....
The costs of defending Arias have topped $2.5 million and will mount during a second penalty phase. Prosecutors have declined to provide their costs to try the case.
I am pleased this AP article ends with a discussion of the economic costs of this notable case. Because it is unlikely Arias will ever be executed even if she is sentenced to death, and because imposition of a death sentence will ensure years of state and federal appeals at taxpayer expense, I think prosecutors in this case are likely to do more harm to Arizona taxpayers than to Jodi Arias via this retrial.
Some prior posts on the Arias case:
- After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP
- Are there (and/or should there be) special death penalty rules for female murderers?
- Arizona jurors quickly make finding for Jodi Arias to be formally death eligible
- Jodi Arias now pleading for a life sentence before sentencing jury
- Arizona prosecutors say they are still planning to try again to get Jodi Arias sentenced to death
- Noting the high costs of seeking to give Jodi Arias death penalty fame rather than LWOP pain
- Arizona poised to take second (costly) run at death sentence for Jodi Arias
Bladerunner Oscar Pistorius sentenced to five years in prison for killing girlfriend
As reported in this lengthy CNN piece, "Oscar Pistorius' fall from grace culminated Tuesday with a five-year sentence in the shooting death of his girlfriend." Here is more:
The sentence was imposed for the charge of culpable homicide, which in South Africa means a person was killed unintentionally, but unlawfully. Under South African law, he will have to serve at least one-sixth of his sentence -- 10 months -- before he can ask to be placed under correctional supervision, usually house arrest, instead....
During his trial, the double-amputee sprinter often sobbed at the mention of his girlfriend Reeva Steenkamp's name. He insisted that he mistook her for an intruder when he shot her through a toilet door on Valentine's Day 2013. But there was very little visible reaction from Pistorius as the sentence was read out in the Pretoria court.
Speaking to CNN's Robyn Curnow in the last few weeks before his sentencing, Pistorius told her that he would respect and accept the decision of the court and that he was not afraid of imprisonment. He said he hoped to contribute while in prison by teaching people how to read or start a gym or running club. "Oscar will embrace this opportunity to pay back to society," his uncle, Arnold Pistorius, told reporters. "As an uncle, I hope Oscar will start his own healing process as he walks down the path of restoration. As a family, we are ready to support and guide Oscar as he serves his sentence."
The Steenkamp family's lawyer, Dup De Bruyn, said in a statement: "The family is satisfied. They are glad that it is over and are satisfied that justice has been done."
The prosecution had asked for a minimum prison sentence of 10 years for Pistorius. After the ruling Tuesday, South Africa's National Prosecuting Authority said it had not yet decided whether to appeal Judge Thokozile Masipa's verdict that he is not guilty of murder. Pistorius' defense had called for a sentence of house arrest and community service. There was no immediate reaction from the defense team on the sentencing. Both sides now have a 14-day period in which they can choose to lodge any appeal, according to CNN legal analyst Kelly Phelps....
Giving her reasoning Tuesday, Masipa emphasized that the decision on sentencing would be "mine and mine alone." She pointed out that sentencing is not an exact science but relies on an assessment of elements, including the nature and seriousness of the crime, the personal circumstances of the accused and the interests of society.
She said she would also take into account the factors in sentencing of retribution, deterrence and rehabilitation. In any case, she said, "sentencing is about achieving the right balance."
In her final remarks, Masipa dismissed evidence given by probation officer Annette Vergeer that prison would not be able to accommodate Pistorius' disability, saying her testimony was based on outdated information and sketchy. She said Pistorius would not present the prison system with an "insurmountable challenge."
The judge added that she felt that Pistorius' vulnerability had been overemphasized in the evidence given and that his excellent coping strategies -- shown in his ability to compete with able-bodied athletes -- had been overlooked. He would be able to continue treatment for physical problems and mental health issues while in prison, she said.
In terms of the seriousness of the offense, Masipa said Pistorius had shown gross negligence in shooting into a small toilet cubicle, knowing there was someone inside who could not escape. He also knew how to handle firearms, she said, adding that these were "very aggravating" factors.
On the other hand, mitigating factors include that Pistorius is a first offender and remorseful, Masipa said. She also mentioned his contribution to society in giving his time and money to charities and inspiring others with disabilities to believe they could succeed.
Perhaps seeking to preempt criticism from those who'd like to see either a tougher or more lenient sentence, Masipa pointed out that the purpose of the court is to serve the public interest, not make itself popular. She also indicated that her sentence wasn't affected by Pistorius' fame. "It would be a sad day for this country if the impression was to be created that there was one law for the poor and disadvantaged and another for the rich and famous," she said.
The judge also highlighted the loss suffered by Steenkamp's family, which has had a negative effect on her father's health. Steenkamp was young, vivacious and full of life at the time of her death, she said. "The loss of life cannot be reversed. Nothing I say or do today can reverse what happened," she said.
Previous related post:
October 21, 2014 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (2) | TrackBack
October 20, 2014
New top Justice in Massachusetts urges repeal of mandatory minimums for low-level drug offenders
I just came across this notable Boston Globe article discussing this notable speech delivered late last week by the new Chief Justice of Massachusetts Supreme Judicial Court. Here is how the Globe article starts:
The head of the state’s highest court called for an end to mandatory minimum sentences for low-level drug offenders on Thursday, saying they interfere with judges’ discretion, disproportionately affect minorities, and fail to rehabilitate offenders.
Citing the opioid-addiction crisis, Supreme Judicial Court Chief Justice Ralph D. Gants said the state needs to find better ways to treat addicts than sending them to jail. In 2013, 674 people died of opioid overdoses, compared with 338 in 2000. “To those who favor the status quo in the so-called war on drugs, I ask: How well is the status quo working?” Gants said.
Gants, selected as chief justice by Governor Deval Patrick, called on the Legislature to pass laws to abolish mandatory sentencing. His remarks, in his first State of the Judiciary speech, were part of a call for broader changes in the court system. “We need our sentences not merely to punish and deter, but also to provide offenders with the supervision and the tools they will need to maximize the chance of success upon release and minimize the likelihood of recidivism,” he said.
Sworn in just 80 days ago, Gants said he will convene a group of judges, probation offices, prosecutors, and defense attorneys to study best practices to ensure what he called “individualized, evidence-based sentences.” That means considering mental health or substance abuse treatment as well as time in prison. Mandatory minimum sentences are automatic prison terms for those convicted of certain crimes, limiting judges’ discretion.
Gants’s proposal drew quick praise from members of the Massachusetts Bar Association, his audience at the association’s annual Bench-Bar Symposium in the John Adams Courthouse. Marsha V. Kazarosian, president of the bar association, called Gants’s call to action “a gutsy move.” She said there are “no cookie-cutter remedies” for drug defendants, and that an offender’s background should taken into consideration, and “that’s exactly what a judge is supposed to do.”
Anthony Benedetti, chief counsel for the Committee for Public Counsel Services, the state’s public defender agency agreed. “So many people involved in the criminal justice system have substance abuse and mental health issues,” Benedetti said. “That’s the root of the problem, and this gets back to individual, evidence-based sentencing.”
The proposal was criticized by Essex District Attorney Jonathan Blodgett, head of the Massachusetts District Attorneys Association, who argued that the laws are designed to target drug traffickers, not merely drug users. “The midst of an opiate overdose epidemic is not the time to make it easier for drug traffickers to avoid accountability and incarceration,” Blodgett said. “An experienced trial judge should know that the drug defendants sentenced to incarceration are the ones who carry and use firearms, who flood communities with poison, and who commit the same distribution offenses over and over again.”
Supreme Judicial Court Chief Justice Gants' full speech is worth reading, and here is a notable excerpt from the text:
Mandatory minimum sentencing in drug cases has had a disparate impact upon racial and ethnic minorities. In fiscal year 2013, 450 defendants were given mandatory minimum sentences on governing drug offenses. In that year, which is the most recent year for which data are available, racial and ethnic minorities comprised 32% of all convicted offenders, 55% of all those convicted of non-mandatory drug distribution offenses, and 75% of all those convicted of mandatory drug offenses. I do not suggest that there is intentional discrimination, but the numbers do not lie about the disparate impact of mandatory minimum drug sentences.
The impact of mandatory minimum drug sentences is far greater than the number of defendants who are actually given mandatory sentences. Prosecutors often will dismiss a drug charge that carries a mandatory minimum sentence in return for a plea to a non-mandatory offense with an agreed-upon sentence recommendation, and defendants often have little choice but to accept a sentencing recommendation higher than they think appropriate because the alternative is an even higher and even less appropriate mandatory minimum sentence. For all practical purposes, when a defendant is charged with a drug offense with a mandatory minimum sentence, it is usually the prosecutor, not the judge, who sets the sentence.
I have great respect for the prosecutors in this Commonwealth, and for the exercise of prosecutorial discretion that comes with the job; I was a prosecutor myself for eight years. But where there is a mandatory minimum sentence, a prosecutor's discretion to charge a defendant with a crime effectively includes the discretion to sentence a defendant for that crime. And where drug sentences are effectively being set by prosecutors through mandatory minimum sentences, we cannot be confident that those sentences will be individualized, evidence-based sentences that will not only punish and deter, but also minimize the risk of recidivism by treating the root of the problem behind many drug offenses -- the problem of addiction.
SCOTUS order list gets week off to exciting start for criminal justice fans
As reported here and here at SCOTUSblog and here at How Appealing and here at Crime & Consequences, the Supreme Court this morning issued this order list which included one notable GVR and three grants of certiorari. All of this SCOTUS action has a direct or indirect connection to criminal justice issues; these excerpts from Lyle Denniston's SCOTUSblog reporting highlights the basics of the cert grant:
The Supreme Court, taking on an issue that reaches hotels and motels across the nation, agreed on Monday to rule on the power of city governments to require commercial lodgings to open their guest lists to the police. In agreeing to hear a Los Angeles case, the Justices also said they would rule on whether a lawsuit can be filed to use the Fourth Amendment to strike down a police inspection law in its entirety, whatever the factual situation in a given case.
The case of Los Angeles v. Patel was one of three new cases the Justices accepted for review.... Other issues in the newly granted cases focus on whether federal courts have power to order that guns taken from an individual during a drug prosecution should be transferred when the case is over to a neighbor and a friend to whom the owner wanted to sell them (Henderson v. United States), and whether it is unconstitutional for a state court to exclude an accused individual and defense lawyers from a hearing to examine the legality of prosecutors’ exclusion of minority jurors from serving (Chappell v. Ayala).
In addition, the notable GVR involved the application of the Burrage causation issue resolved last SOCTUS Term in a criminal prosecution involving a doctor convicted of four counts of unlawful distribution of a controlled substance leading to death. Justice Alito, joined by Justice Thomas, concurred in a written opinion to make clear that "nothing in today’s order should be understood as suggesting that petitioner is entitled to acquittal."
"Why Did the Supreme Court Sidestep Sentencing Dispute?"
The title of this post is not merely the question I had for a few Justices after the denial of cert last week in Jones v. US (lamented here and here), it is also the headline of this new National Law Journal article about this decision authored by Tony Mauro. Here are excerpts:
The U.S. Supreme Court's refusal to add a Washington drug case to its docket would not ordinarily get much notice. But when the court did just that on Oct. 14, it drew wide criticism for missing an opportunity to resolve a long-running dispute over judicial discretion in sentencing.
The court denied certiorari in Jones v. United States, which asked the court to rule that in deciding on a sentence, federal judges should not be able to take into consideration conduct for which the defendant was acquitted. In the Jones case, the trial judge significantly increased the sentences of three defendants by factoring in drug conspiracy charges that the jury had rejected.
"It is really hard to understand why the court ruled as it did," said University of Illinois College of Law professor Margareth Etienne, a sentencing expert. "It goes against everything the Supreme Court has said for the last 15 years."
Cato Institute senior fellow Ilya Shapiro said, "It's not just high-profile culture-war issues like same-sex marriage and the right to bear arms that the Supreme Court is avoiding like the plague." Shapiro said the court's action was "another opportunity lost by the Court, another responsibility shirked. "The issue has been raised in numerous lower court decisions, and in a 2007 Supreme Court case, several justices said it should be taken up if the right case came along. As recently as Oct. 1, the U.S. Court of Appeals for the First Circuit mentioned the Jones case in a ruling that criticized the "questionable practice" of basing sentences on uncharged or unproven offenses.
An unusual lineup of three justices — Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg — took the rare step of dissenting from the denial of review. "This has gone on long enough," Scalia wrote. "The present petition presents the non-hypothetical case the court claimed to have been waiting for."
In the case the court denied, a District of Columbia jury found Antwuan Ball, Desmond Thurston and Joseph Jones guilty in 2007 of selling between two and 11 grams of cocaine, relatively small amounts. They were acquitted on racketeering and other charges that they were part of an extensive narcotics conspiracy. Yet, when U.S. District Judge Richard Roberts sentenced the three, he said he "saw clear evidence of a drug conspiracy," and sentenced Ball, Thurston and Jones to 18, 16 and 15 years in prison, respectively — four times higher than the highest sentences given for others who sold similar amounts of cocaine, according to filings with the Supreme Court....
Stephen Leckar, of counsel to Kalbian Hagerty in Washington, who represented the defendants in the petition denied last week, said he was disappointed that the petition fell "one vote short" of being granted certiorari. The fact that conservatives Scalia and Thomas dissented — along with liberal Ginsburg — "ought to be a fire bell in the night" signaling that the issue should be resolved, Leckar said....
The University of Illinois' Etienne speculated that some justices may have felt the facts of the Jones case were "too good" to be a vehicle for making a broad pronouncement on the issue. She explained that Jones involved a judge ignoring an actual acquittal by a jury, whereas a more common scenario is a judge basing an enhanced sentence on conduct that may or may not have been charged or was not part of a plea agreement. Ruling on a case involving an actual acquittal might leave the broader issue unresolved. "It is going to take a while" for the court to revisit the issue, Etienne added. "Until it does, the old adage that one is 'innocent until proven guilty' will continue to have little meaning."
Previous related posts on the Jones case:
- Extended examination of ugliness of acquitted conduct enhancement
- Latest chapter in notable federal acquitted conduct case from DC
- "When Acquitted Doesn't Mean Acquitted"
- DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims
- Notable follow-up thoughts on acquitted conduct and the sentencing of Antwuan Ball
- Rooting for acquitted conduct petition grant from SCOTUS long conference
- Trying not to get too excited about SCOTUS relist in Jones/Ball acquitted conduct case
- Three Justices dissent from denial of certiorari in Jones/Ball acquitted conduct case
- Refusing to take up acquitted punishment, passive virtues, SCOTUS reputation, and cert-denial-deal speculation
October 19, 2014
Judicial misconduct complained against Fifth Circuit Judge Jones based on provocative death penalty speech dismissed
Thanks to recent posts at Hercules and the Umpire and at Crime & Consequences, I see that the judicial misconduct complaint filed against US Circuit Judge Edith Jones of the Fifth Circuit based on a provocative speech she gave concerning the death penalty at a law school. The lengthy dismissal order is available here, and this AP article reviews the basics:
A council of federal judges has dismissed a misconduct complaint against a conservative appellate judge who was alleged to have made racially discriminatory remarks at a lecture on the death penalty.
Judge Edith Jones ... allegedly said at a speech in February 2013 at the University of Pennsylvania law school that certain racial groups like African-Americans and Hispanics are predisposed to crime, and are prone to commit acts of violence and to be involved in more violent and heinous crimes than people of other ethnicities.
Thirteen individuals and public interest groups filed a judicial misconduct complaint against Jones, and Chief Justice John Roberts assigned the case to the appeals court in Washington at the request of the chief appeals judge in New Orleans. The dismissal, which took place in August, was publicly disclosed Wednesday.
In a lengthy inquiry, a three-judge panel of the judicial council was unable to find any recording of Jones' remarks, forcing them to rely on varying recollections of audience members about precisely what Jones said. "It appears likely that Judge Jones did suggest that, statistically, African-Americans and/or Hispanics are `disproportionately' involved in certain crimes and `disproportionately' present in federal prisons," said the panel. "But we must consider Judge Jones' comments in the context of her express clarifications during the question-and-answer period that she did not mean that certain groups are `prone to commit' such crimes," the panel of judges said.
"In that context, whether or not her statistical statements are accurate, or accurate only with caveats, they do not by themselves indicate racial bias or an inability to be impartial," said the panel. "They resemble other albeit substantially more qualified, statements prominent in contemporary debate regarding the fairness of the justice system."
Attorney Maurie Levin, who represents the complainants, said the ruling "essentially credits Judge Jones' stale recollections over the testimony of a lawyer and five law students who set down their recollections not long after the lecture. There is simply no way to understand that as a fair weighing of the evidence." The complainants are appealing to the Committee on Judicial Conduct and Disability of the judicial council.
I especially recommend Judge Richard Kopf's analysis and reactions in his post at Hercules and the Umpire, and I found noteworthy and important these particular reactive insights from Judge Kopf:
The work of the Special Committee and Professor Jeffrey Bellin makes me proud to be a federal judge. The clarity, tone, thoroughness and objectivity which is evident in the Report of the Special Committee is remarkable....
In my opinion, the essential allegations of the complaint lack a credible factual basis. With the aid of Professor Bellin’s searching investigation, the Report of the Special Committee, in restrained terms, explains why that is so.
I fear that complaints like this one will chill, and may even be intended to chill, judicial speech concerning the law, the legal system, and the administration of justice, particularly when the judge does not share the jurisprudential or ideological views of the listeners, and despite the fact that federal judges are expressly encouraged under the Code to speak about the law and how to improve it.
As distinguished from my fears expressed in the preceding paragraph, the Report of the Special Committee does a skillful job of explaining why controversial speech by a federal judge in the context of a talk on the law does not violate the Code.
Prior related posts:
- Complaint filed against notable (notorious?) Fifth Circuit judge based on comments about death penalty
- "A Tale of Sound & Fury (But No Transcript): In Defense of Judge Edith Jones"
UPDATE: Judge Kopf now has this additional interesting post on this matter titled "On being 'uncomfortable' and 'offended' — the ethics complaint against Judge Jones and the student affiants."
"Good Conduct Time for Prisoners: Why (and How) Wisconsin Should Provide Credits Toward Early Release"
The title of this post is the title of this notable new paper by Michael M. O'Hear. Here is the abstract:
Wisconsin is one of about twenty states not offering good conduct time (GCT) to prisoners. In most states, prisoners are able to earn GCT credits toward accelerated release through good behavior. Wisconsin itself had GCT for more than a century, but eliminated it as part of a set of reforms in the 1980s and 1990s that left the state with what may be the nation’s most inflexible system for the release of prisoners. Although some of these reforms helpfully brought greater certainty to punishment, they went too far in eliminating nearly all meaningful recognition and encouragement of good behavior and rehabilitative progress.
This article explains why and how Wisconsin should reinstitute GCT, drawing on social scientific research on the effects of GCT, public opinion surveys in Wisconsin and across the United States regarding sentencing policy, and an analysis of the GCT laws in place in other jurisdictions. Although the article focuses particularly on Wisconsin’s circumstances, the basic argument for GCT is more generally applicable, and much of the analysis should be of interest to policymakers in other states, too.
Reviewing Alabama's (somewhat successful) use of sentencing guidelines to reduce prison growth
As highlighted in this lengthy local article, headlined "Sentencing reform has slowed, not stopped, inmate growth," sentencing and sentencing reform in Alabama has been a dynamic process that includes sentencing guidelines intended to steer more offenders away from prison. Here are some details:
The state's sentencing structure has a huge impact on the prison population, which is at about 190 percent the capacity it was designed for. A 24-member panel — the Prison Reform Task Force — is working with the Council of State Governments Justice Center to analyze the system and find ways to reduce overcrowding, reduce recidivism and improve public safety.
Andy Barbee, research manager of the CSG's justice center, said Alabama's switch in October 2013 to presumptive guidelines — which judges are required to use unless there's a mitigating or aggravating factor to be considered — has accelerated a downward trend in the number of sentences to prison and the lengths of those sentences. Those guidelines, however, only apply to drug and theft cases.
That trend started in 2006, when voluntary guidelines were made available for judges to use. Judges still had the option to choose existing sentencing laws, but had to acknowledge for the record that voluntary guidelines were considered, Barbee said. The state took those guidelines a step forward when they approved legislation in 2012 that established the presumptive guidelines....
The new guidelines use a point system that weighs factors such as past criminal history and facts of the crime to impose a sentence, said Bennet Wright, executive director of the Alabama Sentencing Commission. The commission is the research arm of the criminal justice system. It's responsible for implementing changes when laws change and making annual recommendations for improvements to the governor, Legislature, chief justice and attorney general.
Wright said the purpose of creating the presumptive guidelines was to provide uniform sentencing practices across Alabama counties, and to make sure the system is fair, effective and encourages community supervision for nonviolent offenders.
But because there are scarce drug rehabilitation and mental health resources and those vary county by county, more structured and uniform assessments of those in the criminal justice system need to be in place to make sure services are effective. "At some point, the state will have to make a bigger investment in community services and supervision programming," Wright said. "Matching offenders with the right services lowers the likelihood that they'll commit more crimes."
The presumptive guidelines are binding unless a judge decides to downgrade the sentence based on facts, or unless an aggravating factor that might warrant a harsher sentence is proved, Wright said. Barbee said the switch to presumptive guidelines was a bold move in the right direction that took political courage, but the next step is to make sure the structure in place continues to evolve. He said similar changes need to happen with parole.
Although the number of arrests, sentences to prison and lengths of sentence are decreasing, the prison population is still on the rise. However, the presumptive guidelines are projected to slow the tremendous growth that the prison population would have seen otherwise, Wright said. "The presumptive guidelines are not going to drastically lower the prison population," Wright said. "It would be a modest reduction at best, but more than likely, it would result in a stabilization. The point is, if you didn't have them, the prison population would just grow, grow, grow."
Much of the current prison population was punished under a set of laws that provided more serious punishments to a larger class of offenses, Barbee said. "Simply waiting on the guidelines to have an effect won't get the system where it wants to be until many years out," Barbee said. "Therefore it's critical, if the state wants to have a near-term impact on the crisis level of overcrowding, it looks beyond sentencing."
Barbee said there are some caveats with the state's sentencing guidelines. Burglary is considered a violent crime, regardless of whether anyone else was involved during the burglary.... He also said Alabama has one of the lowest felony theft thresholds in the country at $500. The threshold was recently raised from $250, he said, and most states are at about $1,000 or $2,000.
The fact that the state's laws don't consider weight or amount when it comes to drug crimes also makes it more likely that punishment might not match the crime. He said any amount of drug possession other than marijuana — whether it's one pill or a pound of cocaine — is a felony.