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February 8, 2014

"On drug sentencing, a growing number of Republicans are ready to shed the party’s law-and-order image in favor of reform"

Jeff FlakeThe title of this post is part of the headline of this notable new Slate piece.  Among other astute points, this piece highlights the generational differences between the members of the GOP who continue to embrace tough (and big) federal criminal justice approaches and other GOP members now embracing reform efforts. Here are excerpts:

“As Christians, we believe in forgiveness,” said [Senator Rand] Paul [in his keynote at the annual American Principles Project conference]. “I think the criminal justice system should have some element of forgiveness.”  There are, sure, human terrors who need to be locked up. “But there are also people who make youthful mistakes who I believe deserve a second chance. In my state, you never vote again if you’re convicted of a felony. But a felony could be growing marijuana plants in college. Friend of mine’s brother did 30 years ago. He has an MBA. But he can’t vote, can’t own a gun, and he’s a house-painter with an MBA, because he has to check a box saying he’s a convicted felon.”

Paul’s audience, consisting of social conservatives, congressional candidates, and radio hosts, listened or nodded along. “These are ideas not many Republicans have talked about before,” Paul said. “I think if we talk about these ideas, we take them to the minority community, often the African-American and sometimes the Hispanic community — 3 out of 4 people in prison are black and brown! But if you look at surveys on who uses drugs, whites and blacks and Hispanic use at about the same rate.  You don’t have as good an attorney if you don’t have money.  Some of the prosecution has tended to go where it’s easier to prosecute people.”

The crowd stayed with him. “I think these are things we should look at. I’m not talking about legalization. I’m talking about making the criminal justice system fair and giving people a second chance if they served their time,” Paul said.

That line earned a long burst of applause.  Paul was in no danger of losing this crowd. Conservatives were ready to talk about lighter sentences for some criminals and for the restoration of felons’ rights.  Just one week earlier, the Senate Judiciary Committee had approved the Smarter Sentencing Act, co-sponsored by Illinois Sen. Dick Durbin and Utah Sen. Mike Lee.  If signed by the president, it would slash the 30-year-old mandatory minimums for drug crimes.  Ten-year sentences would become five-year sentences.  Five-year sentences would shrink to two years.

Every Democrat had voted “aye” — as had three of the committee’s eight Republicans. The bill isn’t as far-reaching as Paul’s own Justice Safety Valve bill, but it’s moving, and there’s already companion legislation waiting in the House.  The most partisan Congress in anybody’s memory may actually come together to go easier on nonviolent drug offenders....  The U.S. Sentencing Commission, which is being heavily lobbied to change standards, now consists mostly of Obama appointees.  Even the conservative appointees like William H. Pryor Jr., whose judicial nomination was filibustered by Democrats for two years, are advocates for reform.

This is more than a trend. This is a reversal of a trend that helped create the modern Republican Party. After bottoming out in the 1964 election, Republicans surged back in 1966 and won the presidency in 1968.  They cracked the old Democratic coalition, in part because rising crime rates and visions of urban riots sent voters sprinting away from liberalism....

For three more decades, Republicans could win tight elections by capitalizing on the fear of crime.  Democrats met them where they could, to neutralize the issue, because to be called “soft on crime” was to be exiled with Michael Dukakis.  As recently as 2012, a pro-Mitt Romney super PAC could dunk on Rick Santorum by warning voters that the senator “voted to let convicted felons vote.”...

Arizona Sen. Jeff Flake, one of the Judiciary Committee members who voted for the sentencing reform bill, acknowledged that the GOP had long been the “law and order” party.  “But we’ve also been the rational party,” he said. “We’ve been the party of fiscal discipline.  It’s tough to justify some of these incarcerations and the cost.  I understand the argument that it gives law enforcement another card to play, plea bargains — I understand that.  But we’ve gone too far.”

In the Judiciary Committee, the average age of the Republicans who voted for reform —Sens. Ted Cruz, Jeff Flake, and Mike Lee — was 45.  The average age of the Republicans who voted no — Sens. John Cornyn, Lindsey Graham, Chuck Grassley, Orrin Hatch, and Jeff Sessions — was 69.  The elder Republicans didn’t want to patronize the new class and didn’t doubt that, in Sessions’s words, “there are some areas where we could reduce the length of incarceration without adversely impacting crime rates.”  But they remembered the bad old days, and the young guys didn’t....

Idaho Rep. Raul Labrador, age 46, sponsored the House companion to the Durbin-Lee reform bill.  He was an immigration lawyer before he entered politics.  “I spent 15 years working in the criminal defense business and seeing people, nonviolent offenders, going to prison,” he explained.  “Then, when I was in the state legislature, I was seeing these budgets continue to grow.  In federal court, you can know a drug dealer, and just the fact that you knew he was about to make a deal, you’d be charged with the entire conspiracy. You’d have a person who was a low-level offender who really had no participation in the conspiracy, and he’d be charged with everything the top trafficker was charged with.  And I don’t think that’s right.  Our Founding Fathers wanted to make it difficult for people to be prosecuted.”

And here’s one of the paradoxes of the new Republican divide. The older class, hewing to law and order, points to the nightmares of the 1970s and 1980s. This isn’t a theoretical discussion. It’s about undoing minimums and social norms that have, sure, generated some awful stories but have played at least some role in plunging crime rates.  “I think the president made a big mistake when he spoke cavalierly about drug use,” said Sessions. “There’s a national effort that saw drug use by high school seniors go from over 50 percent to under 25 percent.  The more we talk about it, the more it goes on television, the more it goes on jokesters’ programs, you’re going to see young people use drugs more.”

The new Republicans, people like Paul, have their own anecdotes, about people their own age — about themselves. Then they skip past the law-and-order era, 200 years back, to the intent of the founders.  Here is a cause whose time should have come many, many years ago.

Some recent and older related posts:

February 8, 2014 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (61) | TrackBack

Lethal injection concerns leads Ohio Gov Kasich to postpone next execution for 8 months

As reported in this local article, "unresolved concerns about the drugs used to execute Dennis McGuire last month prompted Gov. John Kasich yesterday to postpone the scheduled March 19 lethal injection of Gregory Lott."  Here is more:

Without comment, Kasich rescheduled Lott’s execution, delaying it for eight months, until Nov. 19.  Kasich spokesman Rob Nichols said the governor wants to give the Ohio Department of Rehabilitation and Correction time to complete its internal review of McGuire’s Jan. 16 execution.  “Gregory Lott committed a heinous crime for which he will be executed,” Nichols added.

It was the second execution that Kasich had postponed in recent months. On Nov. 13, Kasich pushed back Ronald Phillips’ execution to July 2 to give him an opportunity to pursue organ donation to a family member....

Attorneys for Lott, 51, quickly challenged his upcoming execution, arguing that the drugs could cause “unnecessary pain and suffering” in violation of the Eighth Amendment to the U.S. Constitution. A hearing has been scheduled for Feb. 19 in U.S. District Judge Gregory L. Frost’s court.

The next question involves what happens to four other convicted killers scheduled to be put to death before November. They are Arthur Tyler, May 28; Phillips, July 2; William Montgomery, Aug. 6; and Raymond Tibbetts, Oct. 15.

Lott was convicted and sentenced to death for killing John McGrath, 82, by setting him on fire in his Cleveland-area home in 1986. McGrath survived in a hospital for 11 days before dying. Lott came close to execution in 2004, but the U.S. Supreme Court blocked it to give his attorneys time to examine evidence they said had been withheld. “We are very grateful for the governor’s decision,” said Dana C. Hansen Chavis, an assistant public defender from Knoxville, Tenn., who is one of Lott’s attorneys.

Kevin Werner, executive director of Ohioans to Stop Executions, praised Kasich for showing “ leadership and careful consideration” by issuing a reprieve. State Rep. Nickie J. Antonio, D-Lakewood, urged Kasich to “use his executive power to grant a full moratorium on executions until the state can guarantee that humane and constitutional policies will be utilized. Ultimately, I think such guidelines would lead to the abolishment of the use of the death penalty.”

I see little reason why it should take more than a few weeks for the Ohio DRC to conduct a complete review of the execution of Dennis McGuire. In addition, I expect more delay before conducting the next Ohio execution will end up facilitating still more litigation over Ohio's latest execution protocols and its new use of a two-drug execution cocktail.

That all said, I wonder if this delay is primarily designed to give Ohio officials more time to try to secure Ohio's preferred execution drug, pentobarbital, from a compounding pharmacy. Missouri a few weeks ago completed an execution using just a batch of pentobarbital manufactured by a compounding pharmacy, and I suspect Ohio would prefer to find a way to follow that execution approach rather that try again with the two-drug approach use to put down McGuire.

As has been the reality in Ohio for a number of years now, it seems that legal and practical uncertainty will continue to surround the state's efforts to carry out death sentences. But now the next execution date to watch closely will be in May rather than March thanks to Gov. Kasich giving Lott at least eight more months to be alive.

A few recent related posts:

February 8, 2014 in Baze lethal injection case, Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (11) | TrackBack

Is anyone making a broadside constitutional attack against private prisons?

The question in the title of this post is prompted by this notable new blog post by Professor Michael Tigar over at his blog TigarBytes.  The post is titled "Private Prisons Are Unconstitutional," and here is an excerpt:

In Tumey v. Ohio, 273 U.S. 510 (1927), the Supreme Court invalidated a system whereby the mayor who presided as a judge of minor offenses received a percentage of fines and fees that he levied on defendants. In Ward v. Monroeville, 409 U.S. 57 (1972), the fines assessed in the "mayor's court" provided a significant share of the town's financial resources. The mayor had a major role in the administration of town finances. The Court held this arrangement violated due process.

The due process evil of occupancy guarantees [in private prison contracts] works on two branches of government. The judge who sentences a defendant is an agent of the state, and awareness of the contractual obligation inevitably skews her judgment. It is but a small step from Tumey and Monroeville to such a conclusion.

However, there is an additional evil here. The prosecutors who choose whom to prosecute and for what offenses, and to advocate for particular sentences, have the most direct influence on incarceration, given that 90% or more criminal cases are resolved with guilty pleas. One must assess the influence -- direct and indirect -- on prosecutors to make sure that those prison beds are filled....

A case more directly on point is Young v. U.S. ex rel. Vuitton et fils, S.A., 481 U.S. 787 (1987). In New York, there was a federal injunction against sellers of fake Vuitton merchandise. Courts would allow Vuitton to select and pay special prosecutors, who would conduct contempt cases against violators. There are several opinions in the case, but the upshot is that without strict judicial supervision, the "Vuitton system" posed too great a danger that the special prosecutors would pay more attention to Vuitton's interests than to their ethical obligation to prosecute fairly.

Young is one case among many that result from the movement away from private prosecution to the system that prevails today in the United States.  Prosecutors are public officials, and while their choices of defendants and charges are entitled to considerable deference, influences other than the impartial public interest in punishing and deterring crime are suspect.

I do not pretend, in this post, to explore all the relevant case-law.  I simply express a hope that somebody will start to litigate these issues.

February 8, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

February 7, 2014

Ohio prison officials now struggling with array of death penalty administration issues

This new Columbus Dispatch article, headlined "Execution legal issues put prisons in quandary," has me really feeling badly for the various well-meaning state government workers in Ohio who now have a unique set of unique challenges in discharging Ohio's capital punishment laws and regulations.  Here are the basics of the latest dynamic chapter in a long-running story of death penalty difficulties:

Ohio prisons officials are faced with unique circumstances in the 15 years since the state reinstated the death penalty, dealing simultaneously with legal issues from a past execution, one scheduled next month and one being held up over organ transplants.  The outcome of each case could be critical to the future of capital punishment in Ohio.

A preliminary staff review of Dennis McGuire’s execution on Jan. 16 concluded that the “process went very well” and found “no reasons for revision of policy for future executions.”  However, the reports by Warden Donald R. Morgan at the Southern Ohio Correctional Facility, who observed McGuire’s execution, and Joseph Andrews, a former prisons official now with the Department of Public Safety, are not the final word on the execution, an agency official said.  The final report is pending....

Meanwhile, the organ-transplant controversy, also a first in the U.S., involves inmate Ronald Phillips, 40, whose scheduled execution last Nov. 4 was postponed by Gov. John Kasich to allow time for Phillips to donate nonvital organs to his ailing mother.  Kasich postponed his lethal injection until July 2 to allow time for the complicated surgery.

In the intervening two months, the state has received no documents or requests to proceed. Tim Sweeney, Phillips’ Cleveland lawyer, said the transplant procedure is under discussion, but he declined to elaborate.

Ohio Department of Rehabilitation and Correction officials have informed Phillips about transplant restrictions.  Prisons policy allows a living organ donation only to a member of Phillips’ family, not to someone in the general public.  The family member must be on a list maintained by the United Network for Organ Sharing, the national organization that oversees transplants.  The procedure must be done at Ohio State University’s Wexner Medical Center, where the state has a health-care contract.  Taxpayers would not pay for the surgery.  Phillips would be returned to Death Row after recovering to allow the execution to proceed....

The third contested case involves Gregory Lott, 51, scheduled to be executed on March 16. A hearing opposing use of the same drugs for Lott that were used to kill McGuire will be held in U.S. District Court in Columbus on Feb. 19.

Lott, 51, was convicted and sentenced to death for killing John McGrath, 82, by setting him on fire in his Cleveland-area home in 1986.  McGrath survived in a hospital for 11 days before dying.  Lott came close to execution in 2004, but the U.S. Supreme Court blocked it.

Execution dates have been set for 10 other convicted Ohio killers, extending through January 2016.

February 7, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

February 6, 2014

Opposition by NAAUSA to Smarter Sentencing Act now garnering (too?) much attention

Late last week, Bill Otis over at Crime & Consequences complained in posts here and here about the lack of media coverage regarding the expressed opposition by the National Association of Assistant United States Attorneys (NAAUSA) to statutory sentencing reforms endorsed by Attorney General Eric Holder.  Based on this new reporting from The Huffington Post, headlined "Drug Warriors Reject Obama Administration's Call For Softer Sentences," it seems that NAAUSA's actions are now garnering considerable media attention.  Here is part of the HuffPost story with this new media reality highlighted:

A group of federal prosecutors is criticizing the Department of Justice’s support for legislation that would soften U.S. drug sentencing policies.

The National Association of Assistant United States Attorneys, an organization representing about 1,300 of the 5,600 federal prosecutors, sent a letter to Attorney General Eric Holder last week objecting to his endorsement of the Smarter Sentencing Act. The bipartisan Senate bill would lighten prison sentences for people convicted of nonviolent drug offenses.

The letter, signed by NAAUSA president and assistant U.S. attorney Robert Gay Guthrie, argues that the U.S. should resist calls to reform its mandatory minimum laws, which require judges to sentence certain drug defendants to lengthy prison terms, even if the judge considers those sentences excessive.

In the letter, Guthrie insists that the “merits of mandatory minimums are abundantly clear," insisting that they reach "only to the most serious of crimes" and "target the most serious criminals."...

Guthrie did not respond to an interview request, and a NAAUSA representative told HuffPost that the organization had been overwhelmed with media attention and wouldn't be able to respond until Friday at the earliest.

I fear I may be part of the media that is overwhelming NAAUSA with attention, as I made a request late last week through the NAAUSA website for more information about its survey of federal prosecutors concerning federal mandatory minimum sentencing provisions.  As of this writing, I have not heard back from NAAUSA, nor have I been able to find out any new information about the survey.

Interestingly, though, this HuffPost article seems to have gotten some special access to the results of the NAAUSA survey.  Specifically, the HuffPost piece reports on the NAAUSA survey with a number of details that I have not previously seen publicly reported (and about which I am a bit suspicious):

An online poll conducted by the group [NAAUSA] found that just 15 percent of the nearly 650 federal prosecutors surveyed supported the Smarter Sentencing Act, while more than 60 percent opposed it....

The group dove into the debate over mandatory minimums after conducting its online survey in early November.  According to that survey, more than 80 percent of assistant U.S. attorneys interviewed don’t believe the criminal justice system is "broken," as Holder suggested in a speech in 2013.  And more than three-quarters of those surveyed said they don’t believe that the justice system disproportionately punishes people of color.

I am a bit suspicious about this recounting of the NAAUSA survey results because I think the survey may have asked generally about mandatory minimum reforms being proposed in Congress and not only about the Smarter Sentencing Act.  The SSA, significantly, does not eliminate any mandatory minimums, it just cuts their lengthy in drug cases; other bills about which NAAUSA may have asked call for much more significant reform of all existing federal mandatory minimums.  I remain eager to actually see the actual survey and the result assembled by NAAUSA because I want to be sure that the specifics of the SSA, and not just mandatory minimum reforms in general, were a focal point of the responses now that the SSA appears to be the main sentencing reform bill getting traction in Congress.

A few recent related posts:

February 6, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (32) | TrackBack

"Profiting from Probation: America's 'Offender-Funded' Probation Industry"

The title of this post is the title of this notable new report from Human Rights Watch. Here is the start of the report's summary:

The United States Supreme Court has ruled that a person sentenced to probation cannot then be incarcerated simply for failing to pay a fine that they genuinely cannot afford. Yet many misdemeanor courts routinely jail probationers who say they cannot afford to pay what they owe — and they do so in reliance on the assurances of for-profit companies with a financial stake in every single one of those cases.

Every year, US courts sentence several hundred thousand people to probation and place them under the supervision of for-profit companies for months or years at a time.  They then require probationers to pay these companies for their services.  Many of these offenders are only guilty of minor traffic violations like speeding or driving without proof of insurance.  Others have shoplifted, been cited for public drunkenness, or committed other misdemeanor crimes.  Many of these offenses carry no real threat of jail time in and of themselves, yet each month, courts issue thousands of arrest warrants for offenders who fail to make adequate payments towards fines and probation company fees.

This report, based largely on more than 75 interviews conducted with people in the states of Alabama, Georgia, and Mississippi during the second half of 2013, describes patterns of abuse and financial hardship inflicted by the “offender-funded” model of privatized probation that prevails in well over 1,000 courts across the US.  It shows how some company probation officers behave like abusive debt collectors.  It explains how some courts and probation companies combine to jail offenders who fall behind on payments they cannot afford to make, in spite of clear legal protections meant to prohibit this.  It also argues that the fee structure of offender-funded probation is inherently discriminatory against poor offenders, and imposes the greatest financial burden on those who are least able to afford to pay.  In fact, the business of many private probation companies is built largely on the willingness of courts to discriminate against poor offenders who can only afford to pay their fines in installments over time.

The problems described in this report are not a consequence of probation privatization per se.  Rather, they arise because public officials allow probation companies to profit by extracting fees directly from probationers, and then fail to exercise the kind of oversight needed to protect probationers from abusive and extortionate practices.  All too often, offenders on private probation are threatened with jail for failing to pay probation fees they simply cannot afford, and some spend time behind bars.

February 6, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (4) | TrackBack

Another round of "affluenza" discourse as juve judge order rehab for teen DUI that killed four

As reported here via this CNN piece, headlined "Judge orders Texas teen Ethan Couch to rehab for driving drunk, killing 4," the Texas juvenile case which brought the term "affluenza" into the sentencing lexicon was formally completed yesterday.  Here are some of the latest details:

A judge on Wednesday ordered that Ethan Couch -- who drove drunk and caused a crash, killing four people and injuring two -- go to a lock-down residential treatment facility. State District Judge Jean Boyd had already decided the Texas teenager would serve no jail time. He was sentenced last year to 10 years' probation.

His story made national headlines after a witness claimed Couch was a victim of "affluenza" -- the product of wealthy, privileged parents who never set limits for the boy. That particular defense, however, played no part in the judge's decision, Couch's lawyer told reporters on Wednesday. Court proceedings were closed to the public.

"She (Boyd) said it (affluenza), and specifically mentioned that that was not a basis for her decision," said attorney Reagan Wynn. "She heard all the evidence and she made what she thought was the appropriate disposition." The judge ordered that Couch's parents pay for the treatment facility, which was not identified. It was also unclear how long Couch might stay there.

As part of his probation, the teen must refrain from using drugs or alcohol. He will also not be allowed to drive. If Couch violates the terms of his probation, he could face up to 10 years behind bars. "I think he can be rehabilitated given intensive therapy and I hope that he gets it," Wynn said about the teen. "The juvenile system is about rehabilitation and if it's going to be about rehabilitation, she (Boyd) absolutely made the right decision."

Eric Boyles, who lost his wife and daughter in the crash, disagrees. He told reporters he has no doubt that money played a role in the case. "Had he (Couch) not had money to have the defense there, to also have the experts testify, and also offer to pay for the treatment, I think the results would have been different," he said Wednesday after the proceedings....

Prosecutors were similarly disappointed with the judge's decision. They had asked for the maximum of 20 years behind bars. "This has been a very frustrating experience for me," said prosecutor Richard Alpert. "I'm used to a system where the victims have a voice and their needs are strongly considered. The way the system down here is currently handled, the way the law is, almost all the focus is on the offender."

Prior related post:

February 6, 2014 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (12) | TrackBack

Tennessee now has more scheduled execution dates than it has had modern executions

Tennessee has only had six executions in the modern death penalty era, and it has not completed an execution in nearly five years.  But, as reported in this local article, it now has 10 new execution dates scheduled:

The state of Tennessee plans to execute 10 death row inmates over the next two years after changing the drug protocol to be used in lethal injections, officials said Wednesday.  The state is scheduled to execute the condemned prisoners between April 22, 2014, and Nov. 17, 2015, the Tennessee Administrative Office of the Courts confirmed. Three executions are scheduled this year and seven in 2015.

Gov. Bill Haslam, noting that three execution orders were handed down Friday by the state Supreme Court, told The Tennessean Wednesday that the decision to seek the executions didn’t go through him.  But he said he agrees with it.  “The death penalty has been approved by the state,” he said.  “It’s been our policy. When I ran, I got asked that question, and I said I will follow what the juries decide.”...

Kelley Henry, who supervises capital punishment defense cases with the Federal Public Defender’s Office in Nashville, said it was unfortunate that so many death row inmates were being grouped together.  Henry and other attorneys have asked a Davidson County judge to halt the executions over questions about the drug the state now plans to use. “Each and every one of these cases has a story that is an example of how the death penalty system in Tennessee is broken,” she said Wednesday.  “They each have different stories of ineffective counsel, of evidence that was suppressed by the state, stories of trauma and mental abuse that were never presented to a jury or a judge.”

February 6, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (5) | TrackBack

"Justices Asked to Define 'Mentally Retarded' in Death Cases"

The title of this post is the headline of this new article by Marcia Coyle in The National Law Journal previewing the biggest SCOTUS capital case of the current Term. Oral argument in the case is less than a month away, and here is how this article begins to set the table in a very interesting and important procedural Eighth Amendment case:

Freddie Lee Hall sits on Florida's death row for the 1978 abduction and murder of a 21-year-old woman who was seven months pregnant. He should not be executed because, he claims, he is "mentally retarded."

Twelve years after the U.S. Supreme Court held in Atkins v. Virginia that execution of mentally retarded persons violates the Eighth Amendment, the justices will use Hall's case to examine how states determine who is "intellectually disabled" (now the preferred term for mentally retarded) and whether Florida's test is too narrow.  The court will hear arguments in Hall v. Florida on March 3.

Florida and its supporters want the court to hold fast to its language in Atkins giving states "the task of developing appropriate ways to enforce the constitutional restriction."

"This case turns on whether Atkins truly left any determination to the states or whether, as Hall contends, states are constitutionally bound to vague, constantly evolving — and sometimes contradictory — diagnostic criteria established by organizations committed to expanding Atkins’s reach," Florida solicitor general Allen Winsor wrote.

Most states have developed appropriate standards, according to death penalty scholars and some national psychological and disability organizations.  However, they and Hall argue the justices need to tell Florida and some other states that their tests ignore generally accepted clinical definitions of mental retardation.

Nothing in Atkins "authorizes the states to narrow the substantive scope of the constitutional right itself by defining mental retardation in a way that excludes defendants who qualify for a diagnosis of mental retardation under accepted clinical standards," said Hall's counsel, Eric Pinkard of the Capital Collateral Regional Counsel in Tampa.  "Yet that is precisely what Florida has done here."

February 6, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Senator Rand Paul telling fellow conservatives to focus on criminal justice reform

Regular readers know I have become a huge fan of Senator Rand Paul because he seem eager to highlight that his principled disaffinity for big government extends to modern criminal justice system.  In turn, I was excited, but not all that surprised, to see this Politico report concerning a recent speech by Senator Paul in which he preached about the importance (and political value) of conservatives giving serious attention to criminal justice reforms:

In the speech sponsored by the American Principles Project, a deeply conservative organization with a special focus on social issues, Paul offered up jokes and wry commentary. But he also sought to bridge the oft-perceived gap between libertarians and strict social conservatives.

“‘Libertarian’ …doesn’t mean ‘libertine,’” he said. “To many of us libertarian means freedom and liberty. But we also see that freedom needs tradition.”

He added: “I don’t see libertarianism as, you can do whatever you want. There is a role for government, there’s a role for family, there’s a role for marriage, there’s a role for the protection of life.” Paul stressed that the value of marriage is economic, as well as “moral” and “religious,” and that those virtues can be communicated through families and communities as well as through the government.

He also singled out criminal justice reform as one area that could help the Republican Party expand and improve its brand. “I think there are things we can and should talk about, as Christians, who believe in forgiveness,” he said. “I think the criminal justice system should have some element of forgiveness.”

Paul, who was elected to the Senate in 2010, has been a crusader on the issue of reforming sentencing for drug-related crimes and finding alternative methods for dealing with non-violent drug offenders. He noted that that’s not a typical Republican policy priority, but advocated talking “about these issues” and taking them to minority communities, where, he said, disproportionate numbers of people are hit hard by tough drug policies.

“I think these are things we can look at,” Paul said. To applause, he continued, “I’m not talking about legalization. I’m talking about making the criminal justice system more fair and giving people a second chance when they serve their time.”

Some recent and older related posts:

February 6, 2014 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

February 5, 2014

"The Perverse Effects of Efficiency in Criminal Process"

The title of this post is the title of this great-looking new paper by Darryl Brown now available via SSRN.  Here is the abstract:

The need for greater efficiency in legal process is an undisputed premise of modern policy, and efficiency’s virtues hardly merit debate, notably by the U.S. Supreme Court. A central part of the story of modern adjudication is the steady gains in case processing efficiency. This, above all else, explains the “vanishing trial” and its replacement by civil settlement and, in criminal courts, by plea bargaining.

Defining efficiency in any context, however, is a more complicated endeavor than courts, policymakers, and many commentators commonly acknowledge. It requires first defining ends and means, and even whether a given practice is an end or a mean. Jury decision making, for example, was once an end of trial process that served public interests beyond rendering verdicts. Over time it has become merely a means; case resolution became the overriding dominant goal. Making a process more efficient can thus change both its nature and purposes. Moreover, efficiency’s consequences are more ambiguous than is often recognized. Producing any product more cheaply — including criminal convictions — can have a range of effects. It can reduce production costs if demand is constant; it can help to meet rising demand without a rise in production costs; it can also generate greater demand for the good.

This Essay develops these ideas in criminal adjudication and links adjudication’s efficiency-driven transformation to the expansion of criminal law enforcement and punishment in recent decades. By lowering the unit-cost of convictions, efficient adjudication can encourage more prosecutions and marginally subsidize more incarceration. In the process, efficiency has redefined adjudication’s aims and reordered its priorities, valuing clear, measurable aspects such as numbers of convictions and devaluing qualitative components related to juries, participation, the substantive nature of judgments, and perhaps factual accuracy.

February 5, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (5) | TrackBack

First Circuit rejects feds request for remand for a sentencing jury make finding to trigger mandatory term

Both Sixth Amendment fans and sentencing fans are going to want to check out a fascinating decision by the First Circuit today in US v. Herrerra Pena, No. 12-2289 (1st Cir. Feb. 5, 2014) (available here). The start of the opinion makes clear why:

In federal prosecutions, under the requirements of Alleyne v. United States, 133 S. Ct. 2151, 2158 (2013), if the distribution of drugs is proven beyond a reasonable doubt to a jury to have resulted in a death, a defendant will face a 20-year mandatory minimum sentence. See 21 U.S.C. § 841(b).  But if the government does not meet that burden before conviction, a defendant will face a different mandatory minimum -- either 10 years, 5 years, or no minimum, depending on the drug type and quantity. See 21 U.S.C. § 841(b)(1)(A), (B), (C).  When, as here, there is Alleyne error resulting in the imposition of a mandatory minimum sentence based on judicial findings on a lesser standard of proof, the circuit courts usually have merely remanded for resentencing by the district courts.

The prosecution here asks us to depart from that usual practice.  We are asked, after an Alleyne error and following a conviction based on a straight guilty plea to drug dealing but not to "death resulting," to permit the prosecution on remand to empanel a sentencing jury to allow the government to now prove beyond a reasonable doubt that a death resulted from the defendant's drug dealing.  Because Alleyne was decided after sentencing and while the case was on appeal, the situation in this case will not frequently occur.  We hold that the government's proposed course of action is foreclosed on the facts of this case, is unfair, and would raise troubling constitutional questions that can be avoided by denying the government's request.

February 5, 2014 in Blakely in Appellate Courts, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Distaff side death penalty developments in Texas and Arizona

Women-death-rowI always find gender differences and disparities quite interesting in the administration of the modern death penalty, and thus these two news stories from two states captured my attention this morning.

From Texas via the AP here, "Woman Set to Be Executed in Texas for 1998 Killing," gets started this way:

A woman convicted of torturing and killing a mentally impaired man she lured to Texas with the promise of marriage was scheduled to be executed Wednesday in a rare case of a female death-row inmate.

If 59-year-old Suzanne Basso is lethally injected as scheduled, the New York native would be only the 14th woman executed in the U.S. since the Supreme Court allowed capital punishment to resume in 1976.  By comparison, almost 1,400 men have been put to death. Texas, the nation's busiest death-penalty state, has executed four women and 505 men.

Basso was sentenced to death for the 1998 slaying of 59-year-old Louis "Buddy" Musso, whose battered and lacerated body, washed with bleach and scoured with a wire brush, was found in a ditch outside Houston.  Prosecutors said Basso had made herself the beneficiary of Musso's insurance policies and took over his Social Security benefits after luring him from New Jersey.

The 5th U.S. Circuit Court of Appeals refused to halt the execution in a ruling Tuesday, meaning the U.S. Supreme Court is likely her last hope.  A state judge ruled last month that Basso had a history of fabricating stories about herself, seeking attention and manipulating psychological tests.

Leading up to her trial, Basso's court appearances were marked by claims of blindness and paralysis, and speech mimicking a little girl.  "It was challenging, but I saw her for who she was," said Colleen Barnett, the former Harris County assistant district attorney who prosecuted Basso.  "I was determined I was not going to let her get away with it."

Basso's attorney, Winston Cochran Jr., had asked the appeals court to overturn the lower court's finding that Basso was mentally competent to face execution.  He argued that Basso suffered from delusions and that the state law governing competency was unconstitutionally flawed.  Her lawyer said a degenerative disease left her paralyzed, but Basso, who uses a wheelchair, blamed her paralysis on a jail beating years ago.  At a competency hearing two months ago, she testified from a hospital bed wheeled into a Houston courtroom and talked about a snake smuggled into a prison hospital in an attempt to kill her. But she acknowledged lying about her background, including that she was a triplet, worked in the New York governor's office and had a relationship with Nelson Rockefeller.

From Arizona via The Republic here, "5 Arizona Women Face Rare Death Penalty" gets started this way:

Women make up less than 2 percent of death-row populations in the United States. There are two women on death row in Arizona, and no woman has been executed here since Eva Dugan was hanged in 1930. So, it’s a peculiar confluence of fate that five capital-murder cases against women are working through Arizona courts in these early months of 2014:

On Jan. 17, the Arizona Supreme Court upheld the death sentence for Shawna Forde, a self-styled anti-immigration vigilante convicted of killing two people southwest of Tucson in 2009.

On Jan. 23, a Maricopa County Superior Court judge refused to reconsider her decision to allow a former Phoenix police detective to invoke the Fifth Amendment in the Debra Milke case, putting Milke’s potential retrial on hold until prosecutors can file a special action appeal. Milke was freed after 23 years on death row when the 9th U.S. Circuit Court of Appeals granted her a new trial.

Wendi Andriano, who was sent to death row in 2004 for murdering her husband, is back in Maricopa County Superior Court for the next two weeks in a stage called post-conviction relief, arguing that she deserves a new trial because her defense attorneys did not represent her effectively.

Marissa DeVault’s trial starts Thursday on charges of killing her husband with a hammer in 2009. And Jodi Arias will go back to trial on March 17 to determine if she should be sentenced to death or to life in prison for the 2008 murder of her lover Travis Alexander.

Death-penalty cases are rarely clear-cut; less so when the defendants are women. Last spring, a first jury could not reach a decision as to whether to let Arias live or die.

In 2010, a Superior Court jury balked at sending Marjorie Orbin to death row, even though it found her guilty of killing her husband and cutting him in pieces. One chunk of his torso was found in a plastic tub in the desert in north Phoenix.

And in 2002, the Arizona Supreme Court threw out a death sentence for Doris Carlson, who paid two men to kill her mother-in-law in 1996, after determining that the murder was not committed in an especially cruel, heinous or depraved manner. That is one of the aggravating factors alleged in the DeVault case, and the Arias argument on the death penalty is based on the murder being considered especially cruel.

Capital cases against women also are often more complex because the crimes are often more passionate and more intimate.  “The death penalty is mostly about crimes against strangers. That really frightens people,” said Elizabeth Rapaport, a law professor at the University of New Mexico. Those crimes often include rapes and robberies, “and women just don’t do those kind of crimes,” Rapaport said.  Women who kill tend to kill spouses, lovers, children and family members. “Those cases are rarely capital cases,” she said.

February 5, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (3) | TrackBack

Michigan legislature nearing enactment of Miller fix without retroactivity

As reported in this AP article, headlined "Mich. House OKs Sentencing Rules For Young Killers," a state that has imposed LWOP on a very large number of juvenile murderers is getting close to revising its laws in response to the Supreme Court's constitutional concerns with mandating this punishment.  Here are the details:

Young killers could no longer be sentenced to mandatory life without parole under legislation nearing final approval in Michigan, but those now incarcerated for crimes committed under age 18 would stay locked up despite pleas for a second look.

The Republican-controlled state House voted 62-48 Tuesday, mostly along party lines, to approve the new sentencing rules, 19 months after the U.S. Supreme Court struck down mandatory no-parole sentences for juveniles. The Senate is expected to send the bill to Gov. Rick Snyder; it approved an earlier version in the fall.

The Supreme Court’s June 2012 decision – based on the constitutional prohibition against cruel and unusual punishment – is silent on retroactivity, and courts across the country have been divided ever since on the issue. It is especially relevant in Michigan, home to around 360 juvenile lifers, the second-highest number in the U.S.

House Criminal Justice Committee Chairman Kurt Heise said he wishes the high court had settled the retroactivity question, but lawmakers put guidelines in place in case it does in the future. The bill includes a “trigger” so prisoners now behind bars would be resentenced if the U.S. Supreme Court or Michigan Supreme Court determines the 2012 ruling should apply retroactively....

Juveniles can still be sentenced to life without parole after the high court’s decision. The sentence just cannot be mandatory on judges, who also must consider factors such as defendants’ immaturity, rehabilitation chances, family and home environment, peer pressures and inability as youths to navigate possible plea deals.

If Michigan juveniles charged as adults commit first-degree murder or other serious crimes causing death and do not receive life without parole, judges would have to sentence them to a minimum of at least 25 years and a maximum of at least 60 years under the bill....

It is estimated that 150 prisoners serving life without parole for crimes committed as juveniles were accomplices, not the actual killers.

Over objections from Michigan Attorney General Bill Schuette, U.S. District Judge John Corbett O’Meara in November directed the state to give juvenile lifers an opportunity to apply for release or face the appointment of a special master to oversee the process. His ruling was appealed.

Jody Robinson’s brother was killed by a 16-year-old and 20-year-old in Pontiac in 1990, and she later co-founded the National Organization of Victims of Juvenile Lifers. “This legislation will not only put Michigan laws in compliance with the U.S. Supreme Court, but it also gives victims’ families the hope that legal finality is a possibility and the nightmare of repeatedly reliving their loved one’s murder may soon come to an end,” Robinson said in a statement released by Schuette’s office.

February 5, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

February 4, 2014

"Prosecutors Wrong to Oppose Sentencing Reform"

The title of this post is the headline of this new commentary appearing at Main Justice and authored by Jamie Fellner, who is a senior advisor to the US Program of Human Rights Watch and the author "An Offer You Can't Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty" (discussed here).   Here are excerpts:

Sentencing reform efforts are finally getting some traction after three decades mandatory minimum drug sentencing laws that crammed federal prisons with low-level drug offenders.  A bipartisan bill pending in the US Senate would reduce mandatory minimums for certain drug crimes and give judges some discretion to impose lighter sentences.  Attorney General Eric Holder has endorsed the legislation, saying it "could ultimately save our country billions of dollars in prison costs while keeping us safe."

Some federal prosecutors diagree.  The National Association of Assistant United States Attorneys (NAAUSA) has sent a letter to Holder saying mandatory minimums “reach only to the most serious of crimes.  They target the most serious criminals.  They provide us leverage to secure cooperation from defendants.  They help to establish uniformity and consistency in sentencing.  And foremost, they protect law-abiding citizens and help to hold crime in check.”

An impressive set of claims -- but mostly false.

Mandatory minimums reserved for the most serious criminals?  Hardly.  According to the United States Sentencing Commission, 93 percent of federal drug defendants come from the lower or middle tiers of the drug business; 40 percent were couriers or street level dealers....  As a former US Attorney told me, "The public simply does not realize how many low-level guys are in [federal] prison.... We lock up the lowest fruit in drug conspiracies."...

Nor is it true that mandatory minimums "establish consistency in sentencing."  Mandatory sentences were introduced in the 1980s and 90s amid complaints that judges in different districts were meting out wildly varying sentences for the same crimes.  But mandatory minimum sentencing laws simply shifted the source of disparities from judges to prosecutors.  In some federal districts, prosecutors always charge everything they can throw at the defendants and refuse to negotiate; in other districts, they're more willing to negotiate a lower sentence.  Because of differences in prosecutorial charging and plea bargaining practices, the average drug sentence ranges from a low of 25 months in some districts to a high of 128 months in others.

What mandatory minimums do -- and here we get to the heart of NAAUSA’s opposition --is provide prosecutors with "leverage" to extract guilty pleas and cooperation from defendants.  Leverage is a polite word for coercion.... 

Those who refuse the deal and go to trial get hammered.  The average sentence of drug offenders who don't plead is three times as long those who do.  And in many cases, the “trial penalty” -- the difference between the sentence a defendant would have received if she had pled versus the sentence imposed after trial -- is extraordinarily cruel.  To cite just one case, a Florida woman named Sandra Avery rejected a plea offer of a ten-year mandatory minimum for dealing small quantities of crack.  The prosecutors punished her with a mandatory sentencing enhancement that sent her to prison for the rest of her life....

But what if the threat of high mandatory minimum sentences were the only way prosecutors could get defendants to plead or to cooperate.  Would that be good reason to keep them?  We think not, since securing pleas -- or even encouraging cooperation – has never been considered a legitimate purpose of punishment. Punishment should fit the crime -- not a defendant’s willingness to plead or snitch. How is it justice to convert a refusal or inability to cooperate into a much higher sentence than a particular crime deserves?

The real issue is that prosecutors do not want judges to set sentences.  Mandatory minimum sentencing laws tie judges’ hands, leaving prosecutors with the enormous power to dictate minimum sentences through their charging decisions.  Confronted with that power, 97 percent of federal drug defendants today plead guilty.  Prosecutors are able to rack up convictions without the expense, risks and burdens of trial.

No one likes to relinquish power -- so it is not surprising that at least some prosecutors want to retain the advantages of mandatory minimum sentencing laws.  Cutting back on mandatory minimums would not, however open the floodgates to crime: judges are quite capable of ensuring serious criminals get serious sentences.  But sentencing law reform would make it harder for prosecutors to coerce defendants into pleading guilty. It would deprive prosecutors of a plea bargaining cudgel they never should have been given in the first place.

A few recent related posts:

February 4, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Is there a faith-based perspective on modern marijuana laws and reforms?

God potThe question in the title of this post is prompted by this interesting article from the Washington Post headlined "Faith leaders wrestle over growing support for marijuana." Here are excerpts:

Sunday’s Super Bowl was dubbed by some as the “pot bowl,” as the Denver Broncos and Seattle Seahawks hail from the two states where fans can soon get marijuana as easily as they can get pizza. As public opinion has shifted in support of legalized marijuana, religious leaders are wrestling over competing interests, including high prison rates and legislating morality.

According to a 2013 survey from the Public Religion Research Institute, 58 percent of white mainline Protestants and 54 percent of black Protestants favor legalizing the use of marijuana. On the other side, nearly seven-in-10 (69 percent) white evangelical Protestants oppose it.

Catholics appear to be the most divided Christian group, with 48 percent favoring legalization and 50 percent opposing it. Opinions on how states should handle those who possess or sell marijuana varies among Christian leaders.

Caught in the middle of the debate are pastors, theologians and other religious leaders, torn over how to uphold traditional understandings of sin and morality amid a rapidly changing tide of public opinion.

Mark DeMoss, a spokesman for several prominent evangelicals including Franklin Graham and Hobby Lobby founder Steve Green, admits he takes a view that might not be held by most Christian leaders. “When 50 percent of our prison beds are occupied by nonviolent offenders, we have prison overcrowding problems and violent offenders serving shortened sentences, I have a problem with incarceration for possession of marijuana,” he said. “None of that’s to say I favor free and rampant marijuana use. I don’t think it’s the most serious blight on America.”

Alcohol abuse, he said, is a much more serious issue. President Obama suggested something similar to The New Yorker recently when he said that marijuana is less dangerous than alcohol.

But don’t expect pastors to start preaching in line with DeMoss, who said he has not seen much comment from religious leaders on the issue. “If a pastor said some of what I said, there would be some who would feel the pastor was compromising on a moral issue,” he said. “No one wants to risk looking like they’re in favor of marijuana. I’m not in favor, but I think we should address how high of a priority it should be.”...

Laws on marijuana have disproportionately impacted minorities, said the Rev. Samuel Rodriguez, president of the National Hispanic Christian Leadership Conference. “There are community programs that can better engage young people than incarceration,” he said. “Many black and brown lives are destroyed because of incarceration.”...

Most Christians are still reluctant to favor legalization, Rodriguez said, since the effects of marijuana aren’t much different from getting drunk, which is a biblical no-no. “It has the ability of diluting reason, behavior, putting your guard down,” he said. “We are temples of God’s Holy Spirit, and it has the ability of hindering a clear thought process.”

Some who favor legalized marijuana liken the Christians who oppose it to be like the early 20th-century evangelicals and fundamentalists who supported a federal prohibition on alcohol. Part of a move in the Republican Party toward a loosening on marijuana legislation could be coming from people who also would sympathize with the Tea Party, said Russell Moore, head of the Southern Baptist Convention’s Ethics & Religious Liberty Commission.

“I definitely think there’s been a coalition of ‘leave us alone’ libertarians and Woodstock nation progressives on this issue of marijuana,” Moore said. “I do think there has been an effort to stigmatize those with concerns as Carrie Nations holding on to prohibition.”

Cross-posted at Marijuana Law, Policy and Reform

February 4, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences? | Permalink | Comments (28) | TrackBack

Reflecting on Obama Administration's latest "half-way" approach to clemency

Mark Osler authored this effective commentary concerning the recent comments coming from the Department of Justice concerning a new focus on granting clemency.  The piece carries the headline "Only half-way there on mercy," and here are excerpts:

In an extraordinary speech to the New York State Bar Association earlier this week, Deputy Attorney General James Cole did two significant things.

First, he announced that when President Obama used the pardon power in December to commute eight lengthy federal sentences for narcotics trafficking, this was only a “first step,” and that there is “more to be done.”  Second, he outlined how a much more extensive round of commutations might happen.  The first of these was historic, remarkable, and right. The second part is more problematic.

The good news is that this administration, unlike its most recent predecessors, intends to use the pardon power in a vigorous and principled way....

The method Cole outlined to produce more commutations is where the problem lies.  The administration intends to have the Bureau of Prisons spur inmates to seek commutations and then encourage state bar associations to direct their members to prepare petitions for those inmates.

Cole made this appeal to deputize lawyers in a very direct way during his New York speech  — telling the bar association there that “this is where you can help.”  The hope is that, in the end, this will produce a wave of good candidates for commutation.

Unfortunately, this solution doesn’t address the actual problem with federal clemency. No one has suggested that what is broken with the pardon power is that there aren’t enough petitions in the system — to the contrary, there is a backlog of some 3,500 clemency petitions awaiting a decision.

The problem is that the process doesn’t work.  The pipeline is clogged, and the solution can’t be simply to jam more things into it.  The present structure for consideration of these often-complicated petitions has done a terrible job handling the workload it has now; it’s unclear how giving the pardon attorney and the others who consider these petitions even more work is supposed to solve the problem. Increasing the size of the clog does nothing to clear out a pipe....

Critics hailing from such diverse corners as the Heritage Foundation and the American Constitution Society have called for wide-ranging reform of the pardon process.  This might be the time to implement significant changes, such as removing many levels of review and giving the person or committee charged with making recommendations on clemency much more frequent and direct access to the president.

Even if systemic reform of the process isn’t undertaken or doesn’t take immediate effect, a shorter-term solution is available.  Obama could empanel a presidential clemency board for a period of 12 to 18 months to consider the mass of petitions that may be generated through the process Cole described.

This pop-up agency would push through the egg in the snake, make its recommendations, and disband.  Their efforts would be revenue-positive (because of savings in incarceration costs), further an important policy goal that has been embraced by members of both parties and all three branches of government, and avoid the dangers presented when a new, permanent bureaucracy is established. What’s not to like about that?

Some recent and older posts concerning federal clemency practices:

February 4, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

February 3, 2014

Should there be a death penalty exemption for combat veterans with PTSD?

The provocative question in the title of this post is the issue raised in this intriguing article from The Crime Report authored by Curtis Stephen and headlined simply "The Death Penalty and Combat Vets." Here are excerpts:

At the sprawling Allan B. Polunsky Unit — which houses some 300 people on death row in Livingston, TX — John Darrell Thuesen awaits word of a Texas Court of Criminal Appeals ruling that he hopes will spare his life.  The appeal is being closely watched across the country.

Before Thuesen, 30, was convicted on capital murder charges following a highly publicized trial in 2010, and became Inmate No. 99957, he was a decorated U.S. Marine lance corporal in Iraq, where he served from August 2004 to September 2005.  The trauma he suffered in combat, Thuesen argues, left him with impaired mental capacity — and should therefore exempt him from capital punishment.

Many legal experts agree.  “If someone has combat-related post-traumatic stress disorder (PTSD) or a traumatic brain injury (TBI) related to something that occurred in war, (he or she) should be entitled to a categorical exemption from the death penalty,” argues Anthony Giardino, an Atlanta attorney and Iraq war veteran who proposed the exemption in an article published in The Fordham Law Review in 2009....

As America’s military presence in Iraq and Afghanistan draws down, the argument has become part of an emotional — and contentious — national debate about PTSD, with some experts claiming that it is just one of a number of factors that may drive violent criminality....

There is no current data on the number of American military veterans on death row; nor are there figures on the number of former soldiers incarcerated nationwide, including those who served in Iraq and Afghanistan.  The most recent U.S. Department of Justice statistics date to 2004, when 140,000 veterans — most of whom fought in Vietnam — were held in federal and state correctional facilities.  In that year, about 18,000 ex-soldiers were either serving life sentences or facing capital punishment.

But the impact of a proposed veterans’ exemption from the death penalty is potentially broad.  To date, more than two million Americans have, at some point, been deployed to Afghanistan and Iraq since the conflicts began in 2001 and 2003, respectively.  And while the vast majority of returning soldiers won't be diagnosed with PTSD, a 2008 RAND study found that some 300,000 veterans met the criteria for it....

Veterans advocates say the presence of veterans on criminal court dockets — including for violent, capital offenses — isn't surprising.  “You're talking about survivors who had multiple tours in war and are coming back with symptoms of layered PTSD,” says Shad Meshad, founder of the Los Angeles-based National Veterans Foundation.  “It's like a bomb waiting to go off for some people.”...

“We should be drawing short of taking the life of someone who was suffering mentally at the time of the crime,” says Bill Pelke, a Vietnam veteran and co-founder of the anti-violence advocacy group, Journey of Hope.

Nevertheless, critics argue there is no justification for excluding combat veterans from capital punishment on the grounds of health disabilities arising from their service.  “I am unaware of any case law, legal, medical or moral reasoning that could establish that all of those with PTSD or TBI should be exempt from the death penalty,” counters Dudley Sharp, a Texas-based victim's rights advocate.

Bret A. Moore, a former military psychologist, is similarly skeptical about the tendency to cite PTSD in criminal cases.  “It gives us an opportunity to blame the violence on something, he says.  “But there's no significant data showing that people with PTSD are any more violent than people without it.  My concern is that veterans are getting tagged as violent, which isn't accurate and does a disservice to those who are suffering from the disorder.”

February 3, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (18) | TrackBack

"Research on [lead]’s effects on the brain bolsters the hypothesis that childhood exposure is linked to criminal acts"

LeadRegular readers know I am intrigued by the possibility that lead exposure could be a very important part of the very important modern story of US violent crime rates.  This new piece on lead and crime, appearing in Chemical & Engineering News, carries the subheadline I have used in the title of this post. Here are excerpts of a piece that merits a full read by anyone and everyone concerned about US violent crime rates and what might significantly impact them: 

When crime rates began to drop across the U.S. during the 1990s, city officials and criminologists were thrilled — but baffled.  Violent acts, most often committed by young adults, had reached an all-time high at the start of the decade, and there was no sign of a turnaround.

By the close of the ’90s, though, the homicide rate had declined more than 40% throughout the country.  Economists and criminologists have since proposed reasons for the unexpected plummet.  Some have pointed to an increase in police officers.  Others have suggested a rise in the number of offenders put behind bars.  Economist and “Freakonomics” coauthor Steven D. Levitt famously hypothesized that the legalization of abortion in 1973 even played a role....

But recently, experts have been kicking around another possible player in the crime drop of the ’90s: lead.  Cars burning leaded gasoline spewed the heavy metal into the air until 1973, when the Environmental Protection Agency mandated the fuel’s gradual phaseout. Lead-based paint was banned from newly built homes in 1978.  Because of these actions, children born in the mid- to late-1970s grew up with less lead in their bodies than children born earlier.  As a result, economists argue, kids born in the ’70s reached adulthood in the ’90s with healthier brains and less of a penchant for violence....

As the lead-crime hypothesis gains traction in economics circles, critics are invoking the “correlation does not equal causation” mantra.  But scientists argue that there is evidence that lead exposure increases aggression in lab animals.  And even though lead, one of the oldest known poisons, affects the brain in a dizzying number of ways, researchers are beginning to tease out some of the mechanisms by which it might trigger violence in humans....

Looking for explanations of the ’90s crime drop in the U.S., economists and crime experts latched onto ... epidemiology studies. “We saw these correlations for individuals and thought, ‘If that’s true, we should see it at an aggregate level, for the whole population,’ ” says Paul B. Stretesky, a criminologist at the University of Colorado, Denver.  In 2001, while at Colorado State University, Stretesky looked at data for more than 3,000 counties across the U.S., comparing lead concentrations in the air to homicide rates for the year 1990.  Correcting for confounding social factors such as countywide income and education level, he and colleague Michael J. Lynch of the University of South Florida found that homicide rates in counties with the most extreme air-lead concentrations were four times as high as in counties with the least extreme levels.

Others have found similar correlations for U.S. cities, states, and even neighborhoods. In 2000, Rick Nevin, now a senior economist with ICF International, saw the trend for the entire country.  In general, these researchers see blood-lead levels and air-lead levels increase, peak in the early 1970s, and fall, making an inverted U-shape.  About 18 to 23 years later, when babies born in the ’70s reach the average age of criminals, violent crime rates follow a similar trajectory....

Research has shown that lead exposure does indeed make lab animals — rodents, monkeys, even cats — more prone to aggression.  But establishing biological plausibility for the lead-crime argument hasn’t been as clear-cut for molecular-level studies of the brain.... On the brain development side of things, lead interferes with, among other things, the process of synaptic pruning....

“If you have a brain that’s miswired, especially in areas involved in what psychologists call the executive functions — judgment, impulse control, anticipation of consequences — of course you might display aggressive behavior,” says Kim N. Dietrich, director of epidemiology and biostatistics at the University of Cincinnati College of Medicine.

Dietrich and his colleagues have been studying lead’s effects on the developing brain for more than 30 years. In the late 1970s, he and a group of other investigators recruited some 300 pregnant women for what would become the Cincinnati Lead Study.  At the time, these women lived in parts of Cincinnati — typically the inner city — that had experienced historically high numbers of lead-poisoning cases.  Once the recruits’ babies were born, Dietrich and his group began monitoring the newborns too.

From the time they were born until they were six-and-a-half years old, the young participants had their blood-lead levels measured 23 times.  The average childhood concentration for the whole group was 13 µg/dL.  Now adults in their 30s, the subjects are having their brains scanned and behaviors analyzed.  And the results are eerie.  As of 2008, 250 members of the lead study had been arrested a total of 800 times.  The participants’ average blood-lead levels during childhood also correlated with their arrest rate, Dietrich’s team found....

Most kids in the U.S. today have a blood-lead level of 1 or 2 µg/dL.  But there are nearly a half-million children between the ages of one and five with a blood-lead level above the 5-µg/dL threshold.  These are mostly kids who are growing up in dilapidated inner-city houses with lead paint still on the walls or in neighborhoods with elevated levels of lead in the soil.

Despite progress in lowering lead levels in the environment, these kids would benefit from the reevaluation of crime policies and reinvigoration of cleanup efforts, says U of Colorado’s Stretesky. “People who are suffering the most from lead exposure are those that tend to be poor, minority, and low income.”

Some related posts:

February 3, 2014 in Data on sentencing, National and State Crime Data, Offender Characteristics | Permalink | Comments (4) | TrackBack

February 2, 2014

Heritage Foundation apparently endorsing Smarter Sentencing Act; where do other conservative groups and media stand?

A conservative friend alerted me to this notable entry from the blog of The Heritage Foundation authored by Evan Bernick and headlined "Time to Reconsider Mandatory Minimum Sentences."   Here are excerpts: 

The Smarter Sentencing Act is narrowly tailored to address one of the most pressing problems with mandatory minimums — arbitrary, severe punishments for nonviolent offenses— while leaving for another day the question of whether mandatory minimums should apply to violent crimes....

Mandatory minimums were intended to address widely acknowledged problems with the criminal justice system. But good intentions don’t necessarily give rise to good results. In particular, some drug offenses, which make up a significant proportion of mandatory minimums, can give rise to unduly severe punishments. The difference between a drug quantity that triggers a mandatory minimum and one that does not will often produce a “cliff effect.” For example, someone with 0.9 grams of LSD might not spend much time incarcerated, but another fraction of a gram will result in a five years behind bars. It is difficult to conclude that the additional one-tenth of a gram demands a minimum sentence of five years’ imprisonment in every case, regardless of its facts.

The Smarter Sentencing Act would allow judges to sentence nonviolent drug offenders below a mandatory minimum if the court finds that the defendant is not a serious offender (that is, the defendant has a limited or no criminal history, as defined by the U.S. Sentencing Guidelines, and no prior firearm, racketeering, terrorism, or sex offense convictions). The act would also make retroactive the Fairness in Sentencing Act of 2010, which prospectively reduced the disparity between the amount of crack cocaine and powder cocaine needed to trigger mandatory minimum sentences.

Mandatory minimum sentences have wrought terrible injustices in certain cases.  Granting district courts some additional limited sentencing discretion would improve the status quo without returning us to the era of unbounded judicial discretion.  It’s encouraging that, at a time when bipartisan consensus is difficult to come by, there is broad agreement that there are some problems with our federal criminal laws that ought to be addressed.  Too many mandatory minimums for nonviolent drug offenses committed by low-level offenders do not serve the ends of justice and leave no room for mercy.

I am not sure if this blog post represents the official view of The Heritage Foundation and therefore amounts to an official endorsement of the SSA.  But I am sure that those eager to see the SSA move forward in Congress should be encouraged to see this kind of sentiment being expressed on the website of a very influential think tank which says here that its "mission is to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense." 

I am hopeful, based in part on the calls for reform represented by the votes and voices of Senators Ted Cruz, Mike Lee and Rand Paul, that a number of other groups and media with a mission "to formulate and promote conservative public policies" will also be vocal supporters of the Smarter Sentencing Act. If other prominent conservative groups echo the sentiments expressed above, my optimism about serious sentencing reforms being passed through this Congress may start to grow considerably.

A few older and more recent related posts:

February 2, 2014 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (41) | TrackBack