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May 16, 2015

"Towards a Theory of Mitigation"

The title of this post is the title of this new paper on SSRN co-authored by me and Carissa Hessick. Carissa is rightly the first name on the article, as she did most of the hard (and good) work, and I am grateful for being able to come along for the ride. Here is the abstract:

Criminal sentencing was once an exercise in rehabilitation — judges imposed sentences on defendants based on their estimation of how likely a defendant was to reform her lawless ways and avoid committing future crime.  The rehabilitative model of sentencing was largely abandoned in the late twentieth century, and it has yet to be replaced by another theory of punishment.  The failure to replace rehabilitation with another theoretical approach has contributed to a dearth of mitigation in modern sentencing.

This Article seeks to restore mitigation to a prominent role in modern sentencing.  First it provides an account of mitigation consensus. Using a comprehensive survey of state sentencing statutes and guidelines, as well as surveys of judges and public opinion, the Article identifies eight mitigating factors that, if present, should always result in a mitigated sentence.  Second, the Article offers a theoretical approach to sentencing mitigation. Drawing on the mitigation consensus, the parsimony principle, and theories of limited government, the Article proposes that judges should impose less severe sentences whenever any of the prevailing punishment theories would support a reduction.

May 16, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (5) | TrackBack

May 15, 2015

Capital jury concludes character of crime matters most in death sentencing of Boston bomber

I was on the links on a lovely spring afternoon when this news broke (via CNN): "Boston Marathon bomber Dzhokhar Tsarnaev sentenced to death."  As the title of this post highlights and as I suggested in some prior posts, I long thought the sentencing in this case came down to whether the jury was concerned more about the horrific crime that Tsarnaev committed or about the explanations of his background emphasized by the defense.  In the end, it appears that the crime prevailed.

Lots of notable commentary about the notable sentencing verdict can already be found at Crime & Consequences:

UPDATE: Detailed post-verdict commentary keeps coming from Bill Otis at Crime & Consequences, who is obviously quite energized by the jury's condemnation of the Boston bomber:

May 15, 2015 in Death Penalty Reforms | Permalink | Comments (19) | TrackBack

Spectacular work on sex offender registration rules and other "collateral" stories at CCRC

Regular readers surely recall me highlighting all the great work still being done regularly over at the Collateral Consequences Resource Center.  The newest post by Margy Love there, "50-state survey of relief from sex offender registration," demostrates why CCRC must be a regular read for all would-be criminal justice fans.  Here is how it gets going:

We have prepared a new 50-state chart detailing the provisions for termination of the obligation to register as a sex offender in each state and under federal law.  This project was inspired by Wayne Logan’s recent article in the Wisconsin Law Review titled “Database Infamia: Exit from the Sex Offender Registries,”discussed on this site on April 15.  The original idea of the project was simply to present Professor Logan’s research in the same format as the other 50-state charts that are part of the NACDL Restoration of Rights Resource, supplementing it as necessary.  But getting all of the state laws condensed into a few categories turned out to be a considerably more complex task than we imagined, in part because we had to fill in a lot of gaps, and in part because of the extraordinary variety and complexity of the laws themselves.

We present it here as a work in progress in the hope that practitioners and researchers in each state will review our work and give us comments to help us make the chart most helpful to them and to affected individuals.

It is risky to try to generalize about the results of our study,  However, we found that registration laws seem to fall into three general categories:

  • 18 states provide a single indefinite or lifetime registration period for all sex offenses, but a substantial portion of these allow those convicted of less serious offenses to return to court after a specified period of time to seek removal;
  • 19 states and the District of Columbia have a two-tier registration system, which requires serious offenders and recidivists to register for life but automatically excuses those convicted of misdemeanors and other less serious offenses from the obligation to register after a specified period of time, typically 10 years;
  • 13 states and the federal system have a three-tier system, requiring Tier III offenders to register for life, and Tier I and Tier II offenders to register for a term of years, generally 15 and 25 years. 

And these other new posts from CCRC recently highlight the critical work being done at CCRC on topics beyond sex offender registration realities:

May 15, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

"America’s Deadliest Prosecutors"

150512_JURIS_deadliestprosecutors.jpg.CROP.original-originalThe title of this post is the main headline of this notable new Slate piece, which highlights the central role that different prosecutors can and do play in the administration of the death penalty.  Here are excerpts:

“I think we need to kill more people,” Dale Cox, a prosecutor in Caddo Parish, Louisiana, said recently. He was responding to questions about the release of Glenn Ford, a man with Stage 4 lung cancer who spent nearly three decades on death row for a crime he did not commit. Cox acknowledged that the execution of an innocent person would be a “horrible injustice.” Still, he maintained of the death penalty: “We need it more now than ever.”

Cox means what he says. He has personally secured half of the death sentences in Louisiana since 2010. Cox recently secured a death sentence against a father convicted of killing his infant son, despite the medical examiner’s uncertainty that the death was a homicide. Rather than exercising caution in the face of doubt, Cox told the jury that, when it comes to a person who harms a child, Jesus demands his disciples kill the abuser by placing a millstone around his neck and throwing him into the sea.

The nation suffered more than 10,000 homicides last year, yet only 72 people received death sentences — the lowest number in the modern era of capital punishment. The numbers have been steadily declining for the better part of a decade. Most states are abandoning the practice in droves. Even in states that continue its use, capital prosecutions are being pursued in only a few isolated counties.

What distinguishes these counties from neighbors that have mostly abolished the death penalty, in fact if not in law? Perhaps the biggest factor is the presence of a handful of disproportionately deadly prosecutors who represent the last, desperate gasps of a deeply flawed punishment regime. Most of their colleagues are wisely turning away from a practice that has revealed itself to be ineffective at deterring crime, obscenely expensive, inequitably administered, and not infrequently imposed upon the innocent. But America’s deadliest prosecutors continue to pursue death sentences with abandon, mitigating circumstances and flaws in the system be damned.

Cox is one of them.  Jeannette Gallagher of Maricopa County, Arizona, is another. She and two colleagues are responsible for more than one-third of the capital cases — 20 of 59 — that the Arizona Supreme Court reviewed statewide between 2007 and 2013.  Gallagher recently sent a 19-year-old with depression to death row even though he had tried to commit suicide the day before the murder, sought treatment, and was turned away. She also obtained a death sentence against a 21-year-old man with a low IQ who was sexually abused as a child, addicted to drugs and alcohol from a young age, and suffered from post-traumatic stress disorder.  She then sent a U.S. military veteran with paranoid schizophrenia to death row.  Her response to these harrowing mitigating circumstances has not been to exercise restraint, but rather to accuse each of these defendants of simply faking his symptoms.  The Arizona Supreme Court has found misconduct in three of her cases, labeling her behavior as “inappropriate,” “very troubling,” and “entirely unprofessional.”...

Meanwhile, in Duval County, Florida, Bernie de la Rionda has personally obtained 10 death sentences since 2008.  (He failed to secure the conviction of George Zimmerman, however, for chasing down and shooting teenager Trayvon Martin.)  The Florida Supreme Court reversed three of those cases; one for law enforcement misconduct and two after concluding that death was too severe a punishment.  That court also reversed an earlier death sentence because de la Rionda repeatedly harped about the defendant’s sexual preferences and views on homosexuality, despite the trial court’s warning that the evidence was irrelevant....

Not surprisingly, death sentences drop precipitously after these prosecutors leave office. Bob Macy sent 54 people to Oklahoma’s death row before retiring in 2001.  Over the past five years, Oklahoma County has had only one death sentence.  Lynne Abraham secured 45 death sentences as the Philadelphia district attorney.  Since she retired in 2010, the new district attorney has obtained only three death sentences.  Joe Freeman Britt, dubbed the deadliest prosecutor in America, secured 42 death sentences during his tenure in Robeson County, North Carolina.  Last year DNA evidence led North Carolina officials to release two intellectually disabled half brothers, Henry Lee McCollum and Leon Brown, each of whom served 30 years — with McCollum under a sentence of death — for a rape and murder they did not commit.  Britt is the prosecutor who sent McCollum, a man with the mental age of a 9-year-old, to death row.  Britt retired in the 1990s, and the county has imposed only two death sentences in the past decade.

May 15, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

You be the judge: what sentence for Georgetown's video voyeur Rabbi?

This Washington Post article provides background on a notable sentencing in a DC local court today in which, as highlighted below, the prosecution and defense have radically different sentencing recommendations.  Here are the details:

Sentencing for Barry Freundel, the once-influential Orthodox rabbi who pleaded guilty to secretly videotaping dozens of women as they prepared for a ritual bath, is scheduled for Friday in D.C. Superior Court. The hearing is expected to be an emotional one as many of the victims are expected to speak to Senior Judge Geoffrey Alprin on the impact of Freundel's crime on their lives.

Freundel, 64, was arrested in October on charges that he videotaped six women in the nude while he was at Kesher Israel synagogue in Georgetown.  Prosecutors said a review of his computer equipment revealed that many more women had been recorded by Freundel as they prepared for the bath known as a mikvah — used as part of a purification ritual.

Freundel ultimately pleaded guilty to videotaping 52 women, and the punishment proposed by prosecutors would translate to four months for each victim.  The longtime rabbi had recorded about 100 additional women, prosecutors have said, but those alleged crimes occurred outside the three-year statute of limitations.  The videotaping occurred between 2009 and 2014....

On Thursday, the judge sent out a procedures memo in which he said alerted prosecutors, Freundel and his attorney and victims, as to how the hearing will be conducted.  Each victim who wishes to speak will be allowed only five minutes.  To ensure anonymity for the victims, each woman will be identified by an alphabetical or numerical identifier. Some victims are scheduled to fly in from Israel to speak.

Prosecutors have asked the judge to sentence Freundel to 17 years in prison. Freundel’s attorney, Jeffrey Harris, urged against prison and instead asked the judge to sentence Freundel to community service.  Alprin can adopt either recommendation, or craft another punishment.

Freundel has not spoken publicly about the charges.  He is also likely to speak and because he pleaded guilty, he waived his chance to appeal.  In the memo his attorney wrote to the judge, Harris said Freundel “recognizes and regrets” his actions.  “His conduct has brought shame upon Judaism, the synagogue he once served, his family, and himself,” Harris wrote.

Among the many interesting aspect of this sentencing is whether and how a judge ought to consider the impact of this Rabbi's crimes on those whom he served over many years as a religious leader. This prior Washington Post article, headlined "For those who revered him, D.C. rabbi’s sentencing for voyeurism will not bring closure," highlights their stories. It starts this way:

This week, a D.C. Superior Court judge is scheduled to hand down a penalty for Barry Freundel, a powerful Orthodox rabbi who for years secretly videotaped his female followers as they prepared to submerge in the mikvah, a ritual bath.  But in the Orthodox world where Freundel was once a giant, the fallout of his crimes will continue unspooling.

Some of the hundreds who studied or worshiped with Freundel have stopped going to the mikvah, a ritual that is considered so important in Judaism that women are commanded to use it monthly before sharing any physical intimacy with their husbands.  Others who converted with Freundel are terrified that their status as Jews will forever be in question in their law-focused communities.  Some people have stopped going to synagogue.  Others suffer nightmares in which they are spied upon — and feel complicit.

May 15, 2015 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (6) | TrackBack

May 14, 2015

Any predictions about how long the capital jury will need to deliberate in the Boston bombing case?

Slider_2015-04-06T174208Z_174798518_GF10000051140_RTRMADP_3_BOSTON-BOMBINGS-TRIALAs this Boston Globe article reports, "jurors began deliberating Wednesday on the sentence of Dzhokhar Tsarnaev, sorting through a complex 24-page verdict slip meant to help them decide whether the Boston Marathon bomber should be sentenced to life in prison or death." Here is more details about where matters now stand as a set-up to the question in the title of this post:

The jurors were left with only 45 minutes to meet Wednesday after receiving instructions from the judge and hearing closing arguments from both sides. Prosecutors used their time to depict the 21-year-old defendant as a remorseless terrorist who participated in the bombing to make a political statement; defense attorneys portrayed Tsarnaev as the troubled follower of an older brother who brainwashed him into joining his violent plan.

Both sides also reminded jurors — the same panel that convicted Tsarnaev last month — of the emotionally charged testimony and graphic photos presented during the 10 weeks of testimony. Yet they recommended contrasting methods of weighing whether Tsarnaev deserved to be put to death.

In her closing argument, Judy Clarke, Tsarnaev’s attorney, delivered a surprising concession, telling jurors they could quickly endorse some of the sections of the verdict slip that refer to the factors that permit, but do not require, the imposition of the death penalty for her client. “Check them off,” she said with a dismissive flick of the wrist.

Clarke acknowledged there was ample evidence presented during the trial that Tsarnaev, among other things, intended to kill, that his crime was premeditated, and that it was especially cruel and heinous — all factors that make his offenses subject to capital punishment.

But prosecutors urged a more careful review of each section of the verdict form, calling on the 12 jurors to study the long list of Tsarnaev’s actions and each question they must answer in reaching their decision. They called on jurors to remember that they promised to remain open to the death penalty if the government proved its case. “I urge you to take your time with each one,” said prosecutor William Weinreb, who gave the rebuttal closing after Clarke’s statement.

But Clarke, as has been her style since the beginning of the trial, when she startled the courtroom by conceding that Tsarnaev committed the crimes, continued to try to show jurors that she was leveling with them and that she was a high-minded attorney looking to not waste their time with legal technicalities.

In her 90-minute statement, Clarke struck a more philosophical note, saying sometimes good kids emerge out of chaotic, troubled homes to become good young adults — but sometimes not.  She went through photos and evidence suggesting that Tsarnaev’s parents were emotionally, and later physically, absent from his life, and that Tsarnaev’s older troubled and radicalized brother, Tamerlan, filled the void.  The root cause of the violence that erupted on Boylston Street on April 15, 2013, was Tsarnaev’s older brother, Clarke said. “Dzhokhar would not have done this but for Tamerlan,” she said....

Echoing themes of war, prosecutors passionately argued before jurors that Tsarnaev was his own man and chose to become a jihadist warrior.  They portrayed him as part of a disturbing number of young anti-American terrorists who seek to kill to send a political message.  While the defense has cited Tsarnaev’s age — he was 19 when he planted the bombs — as a mitigating factor against the death penalty, prosecutor Weinreb rejected the notion.

“These weren’t youthful crimes,” he said. “There was nothing immature or impulsive about them. These were political crimes, designed to punish the United States . . . by killing and mutilating innocent civilians on US soil.”

He went on to say that while the defense case focused heavily on Tamerlan as the evil force who corrupted his younger brother, no evidence to back up the theory emerged in court. “Where is the evidence of brainwashing and mind control?” Weinreb asked.

Reaching their final decision will be more art than science, both sides said, telling jurors that it will not be a simple tabulation of how many aggravating factors they endorse against the number of mitigating factors they find. Those factors, among other things, are delineated on the verdict slip.

For the jury to impose the death penalty, all 12 members would have to unanimously agree on that sentence for at least one of the 17 death-eligible counts for which Tsarnaev was convicted. Anything short of that would require the judge to impose life in prison without parole. Jurors are scheduled to resume deliberations Thursday.

I have a nagging feeling that, because I am going to be off-line during most of the work day today and tomorrow with a variety of professional commitments, we are going to get a verdict from the jury before the end of this week. But perhaps because there are multiple formal elements to the capital verdict form, and perhaps also because the jurors may want ample time to talk through all their perspectives, it certainly seems possible we will not get a verdict until next week.

A few prior related posts:

May 14, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

"Is Burglary A Crime Of Violence? An Analysis of National Data 1998-2007"

The title of this post is title of this interesting federally funded empirical research. Here is the abstract:

Traditionally considered an offense committed against the property of another, burglary is nevertheless often regarded as a violent crime. For purposes of statistical description, both the Uniform Crime Reports (UCR) and the National Crime Victimization Survey (NCVS) list it as a property crime.  But burglary is prosecuted as a violent crime under the federal Armed Career Criminal Act, is sentenced in accord with violent crimes under the United States Sentencing Guidelines, and is regarded as violent in state law depending on varied circumstances.  The United States Supreme Court has treated burglary as either violent or non-violent in different cases.

This study explored the circumstances of crimes of burglary and matched them to state and federal laws. Analyzing UCR, NCVS, and the National Incident Based Reporting System (NIBRS) data collections for the ten year period 1998-2007, it became clear that the majority of burglaries do not involve physical violence and scarcely even present the possibility of physical violence.  Overall, the incidence of actual violence or threats of violence during burglary ranged from a low of .9% in rural areas based upon NIBRS data, to a high of 7.6% in highly urban areas based upon NCVS data. At most, 2.7% involved actual acts of violence.

A comprehensive content analysis of the provisions of state burglary and habitual offender statutes showed that burglary is often treated as a violent crime instead of prosecuting and punishing it as a property crime while separately charging and punishing for any violent acts that occasionally co-occur with it.  Legislative reform of current statutes that do not comport with empirical descriptions of the characteristics of burglaries is contemplated, primarily by requiring at the minimum that the burglary involved an occupied building if it is to be regarded as a serious crime, and preferably requiring that an actual act of violence or threatened violence occurred in order for a burglary to be prosecuted as a violent crime.

May 14, 2015 in Data on sentencing, Offense Characteristics | Permalink | Comments (2) | TrackBack

Extended coverage of messy Oklahoma execution and execution methods

960The just-released June issue of The Atlantic magazine has a lengthy cover story headlined "Cruel and Unusual: The botched execution of Clayton Lockett — and how capital punishment became so surreal."  This piece is a long and valuable read, and these excerpts provides a flavor of its coverage beyond the events of a single capital case:

Since the mid-1990s, when lethal injection replaced electrocution as America’s favored method of execution, states have found drug combinations that they trust to quickly and painlessly end a life.  They often use three drugs.  The first is an anesthetic, to render the prisoner unconscious.  The second is a paralytic.  The third, potassium chloride, stops the heart.

What many people don’t realize, however, is that choosing the specific drugs and doses involves as much guesswork as expertise.  In many cases, the person responsible for selecting the drugs has no medical training.  Sometimes that person is a lawyer — a state attorney general or an attorney for the prison.  These officials base their confidence that a certain drug will work largely on the fact that it has seemed to work in the past.  So naturally, they prefer not to experiment with new drugs.  In recent years, however, they have been forced to do so....

[In early 2014], Mike Oakley, the general counsel for the Oklahoma Department of Corrections, had returned from vacation to find the department in a near-frenzy. Before he’d left, the department had ordered pentobarbital from a compounding pharmacy for the executions of Clayton Lockett and Charles Warner, a 46-year-old man convicted in 2003 of raping and killing his roommate’s 11-month-old baby.  But compounding pharmacies had come under pressure to stop selling drugs for executions, and Oklahoma’s supplier had backed out.  With the executions scheduled for March 20 and March 27, one of Oakley’s deputies began driving around the state, walking into pharmacies and asking for pentobarbital, without success.

Oakley didn’t know why the task of finding drugs for executions fell largely to him: he had no medical training.  But he wanted to help his colleagues — especially the warden, whom he considered conscientious and hardworking — because he knew how much strain carrying out a death sentence put on them. He had gone into corrections, 25 years earlier, because Oklahoma was doing interesting work in mediation between victims and offenders. Now he was about to retire, and he found himself, as his swan song, developing a new execution cocktail.

The Atlantic also hasin its June issue this companion piece headlined "A Brief History of American Executions: From hanging to lethal injection." Here is how it starts:

Hanging is perhaps the quintessential American punishment.  In the pre-revolutionary era, criminals were also shot, pressed between heavy stones, broken on the wheel, or burned alive.  (An estimated 16,000 people have been put to death in this country since the first recorded execution, in 1608.)  But the simplicity of the noose triumphed, and its use spread as the republic grew.

In theory, a hanging is quick and relatively painless: the neck snaps immediately.  But hangings can be grisly.  If the rope is too short, the noose will slowly strangle the condemned.  If the rope is too long, the force of the fall can decapitate the person.

The Supreme Court has never struck down a method of execution as unconstitutional.  But states have at times tried to make the process more humane.  “Hanging has come down to us from the dark ages,” New York Governor David B. Hill told the state legislature in 1885. He asked “whether the science of the present day” could produce a way to execute the condemned “in a less barbarous manner.”

May 14, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

May 13, 2015

"What Private Prisons Companies Have Done to Diversify in the Face of Sentencing Reform"

The title of this post is this interesting Bloomberg Business article, and here are excerpts:

America’s overall prison population has increased by 500 percent over the last 40 years, and the U.S. incarcerates more people than any other country, by far.  State and federal authorities began turning to private prison companies in the 1980s to handle overflowing facilities, and today about 8 percent of prisoners in the U.S. are housed in privately run prisons. Almost all are run by the two largest providers: Corrections Corporation of America and GEO Group.

In September 2014, then-Attorney General Eric Holder announced that the federal prison population had declined for the first time since 1980.  There were nearly 5,000 fewer prisoners in federal prisons in the 2014 fiscal year, compared to the year before, he said. The latest figures for state prisons are only from 2013, which showed an increase of 6,300 prisoners from the previous year.

Both GEO Group and CCA — which last year pulled in a combined $3.3 billion in annual revenue — have taken moves in recent years to diversify into services that don't involve keeping people behind bars.  GEO Group in 2011 acquired Behavioral Interventions, the world’s largest producer of monitoring equipment for people awaiting trial or serving out probation or parole sentences.  It followed GEO’s purchase in 2009 of Just Care, a medical and mental health service provider which bolstered its GEO Care business that provides services to government agencies.

“Our commitment is to be the world’s leader in the delivery of offender rehabilitation and community reentry programs, which is in line with the increased emphasis on rehabilitation around the world,” said GEO chairman and founder George Zoley during a recent earnings call.  

For $36 million in 2013, CCA acquired Correctional Alternatives, a company that provides housing and rehabilitation services that include work furloughs, residential reentry programs, and home confinement.  “We believe we’re going to continue to see governments seeking these types of services, and we’re well positioned to offer them,” says Steve Owen, CCA’s ‎senior director of public affairs.

Brian W. Ruttenbur, a managing director at CRT Capital Group’s research division, says that neither GEO or CCA will be significantly hurt by sentencing reform in the near future. “The big growth in recent years has been with [U.S. Immigration and Customs Enforcement, or ICE] and both of these companies have historically made heavy investments there,” Ruttenbur says.  Immigration detainees are commonly held in the same private facilities that contain state and federal prisoners, and a Government

Accountability Office analysis of ICE data showed that immigration detentions more than doubled between 2005 and 2012. Alex Friedmann, associate director of the Human Rights Defense Center and managing editor of Prison Legal News, says sentencing reform will probably not affect immigration detainees. “Immigration reform might, but even under proposed reform legislation, detention will likely increase,” he says. In 2015, more than $2 billion in federal contracts are up for bid to run five or more prisons that meet the “Criminal Alien Requirements” and house non-U.S. citizens.

May 13, 2015 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Former Georgia Supreme Court Chief Justice call for absolute capital abolition

As reported in this Atlanta Journal-Constitution article, headlined "Former justice calls for end to death penalty," reports on a notable speech given by a notable former jurist.  Here are the details:

A former chief justice of Georgia’s highest court on Tuesday strongly renounced the death penalty and called for its abolition.  Norman Fletcher, who served 15 years on the Georgia Supreme Court, said the death penalty is “morally indefensible,” “makes no business sense” and is not applied fairly and consistently.

“Capital punishment must be permanently halted, without exception,” Fletcher said. “It will not be easy, but it can and will be accomplished.”

Fletcher, now a Rome lawyer, retired from the state Supreme Court in 2005.  Although considered one of the court’s more liberal members, he cast numerous votes upholding death sentences.  In more recent years, he has signed on to legal briefs urging courts to halt the executions of a number of condemned inmates.

Fletcher made his remarks Tuesday evening at the Summerour Studio near Atlantic Station, where he received the Southern Center for Human Rights’ Gideon’s Promise Award for his role in helping create a statewide public defender system.  In his acceptance speech, Fletcher said he was about to “shock” those attending the ceremony.

Lawyers who once criticized his decisions upholding death sentences were justified, he said. “With wisdom gained over the past 10 years, I am now convinced there is absolutely no justification for continuing to impose the sentence of death in this country,” Fletcher said....

Fletcher added, “There can be no doubt that actually innocent persons have been executed in this country.”  Too often, Fletcher contended, budgetary issues, race and politics factor into the decision-making of whether to seek the death penalty.

Fletcher cited the late U.S. Supreme Court Justice Harry Blackmun, who once said he could “no longer tinker with the machinery of death.”  Blackmun made this declaration before he retired from the high court in 1994. “It is time for us to quit the tinkering and totally abolish this barbaric system,” Fletcher said.

May 13, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Senator Cornyn highlights his plan to "ensure that prisons don’t become nursing homes behind bars"

This recent post spotlighted the Washington Post's extended front-page story about the graying of America's prison populations.  Notably, Senator John Cornyn has now penned this letter to the editor to explain what he is trying to do to deal with this issue:

A bipartisan proposal working its way through Congress would offer a path home for some nonviolent, elderly prisoners.

The Corrections Act, which I have introduced with Sen. Sheldon Whitehouse (D-R.I.), includes a provision that would make prisoners age 60 and older eligible for early release after serving two-thirds of their sentences.  This reform builds on an expired pilot program from a bipartisan prison reform law known as the Second Chance Act of 2007.  That program showed good results before it was canceled last year, and our proposal would save taxpayer money by treating seriously ill and dying individuals with compassion.

It is becoming increasingly clear that we must make bipartisan efforts to reform our criminal justice system.  Many of the issues involved are complex, but reforming the system to ensure that prisons don’t become nursing homes behind bars doesn’t need to be one of them.

May 13, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

May 12, 2015

Is it unseemly I wish I could watch the Boston bombing closing arguments?

The question in the title of this post reflects my (perverse?) frustration with the absence of cameras in federal courtrooms, especially in cases in which the work of advocates seem so significant in the sentencing decision-making process.  From the start of the Tsarnaev trial, I have long thought that the sentencing outcome would turn on how well the prosecution  keeps the jury's focus on the horrible crime (which surely seems death-worthy) and how well the defense turns the focus to mitigating personal factors which perhaps led Tsarnaev to commit the horrible crime.  I am expecting that the closing arguments would capture and encapsulate the debate over this crime, criminal and his punishment in a fascinating way.  But, to my disappointment, I will only get to read accounts of the arguments rather than see and hear them directly.

For those eager for a bit of a preview, this new Boston Globe article, headlined "Lengthy, complex checklist awaits Tsarnaev jurors," explains the formal death sentencing process the jury will soon be facing:

In the end, the punishment of Dzhokhar Tsarnaev will come down to one question: Have federal prosecutors proved that the Boston Marathon bomber’s crimes were so heinous he deserves to be sentenced to death?

But before jurors weigh that singular decision they will first have to wade through a complex checklist in a lengthy verdict sheet to show that they have indeed weighed all the factors in the case — those identified by prosecutors, known as aggravating factors, as well as those presented by defense attorneys, called mitigating factors.

Legal analysts say the thoroughness of the process is meant to assure that jurors focus on relevant factors and ignore prejudicial and arbitrary circumstances in determining a defendant’s fate. “The jury has to consider the circumstances that the government says is relevant, that justifies a death sentence, and then the jury makes a reasoned, morally responsible response to that evidence,” said George Kendall, a New York lawyer who has handled hundreds of death-penalty cases. “The idea is we want to have a system of accountability.”

Unlike typical criminal cases, the jury that determined Tsarnaev’s guilt in the first phase of his trial is also tasked with deciding his punishment during this second phase of his trial. And in deciding which sentence to bestow, the jurors will weigh the aggravating factors — or reasons why Tsarnaev’s crimes were so heinous he deserves death — against the mitigating factors, or arguments that seek to explain and soften his culpability in the crimes.

The formula of arguing aggravating vs. mitigating factors in capital crimes was upheld by the US Supreme Court in 1976, in a case originating in Georgia, and it became the basis for modern federal death penalty laws. The decision ended an unofficial moratorium on the death penalty that had begun four years earlier after the Supreme Court ruled that death penalty laws were unconstitutional because they were being applied arbitrarily.

Now, under the modern application of the death penalty, jurors must consider aggravating factors and mitigating factors for each defendant — and they must record their conclusion on each of those factors on the verdict slip. They must then repeat the process for each count.  Tsarnaev faces 17 charges that carry the possibility of the death penalty.

US District Judge George A. O’Toole Jr. has not released a copy of the verdict slip, but prosecutors have already identified aggravating factors in the case: That Tsarnaev intentionally sought to kill and inflict bodily injuries; that he targeted vulnerable victims, including children and spectators at the Marathon finish line; Tsarnaev has shown no remorse; the attacks were in the name of jihad, or terrorism; one of his victims was a police officer; and the attack was premeditated.

Jurors will have to be unanimous in finding that each of the aggravating factors was proven. They also must be unanimous if they choose to sentence Tsarnaev to death.  A split jury would result in a life sentence.

But jurors will also vote on the defense team’s mitigating factors, and they do not have to be unanimous on each one.  “The defense doesn’t have the same kind of burden, it’s the prosecutors who have the burden to prove this beyond a reasonable doubt, that death is the only appropriate sentence,” Kendall said.

Jurors will then weigh the totality of aggravating and mitigating factors before deciding on a sentence.  O’Toole has already instructed jurors that choosing a sentence isn’t a matter of simple math of how many aggravating factors were proven vs. how many mitigating factors the defense presented, but a “reasoned, moral response” to the overall case. “A single mitigating factor can outweigh several aggravating factors,” O’Toole told jurors.

The defense team has not publicly disclosed the mitigating factors it will list on the verdict sheet, but they will likely draw from the themes they have sought to crystallize in the trial: That Tsarnaev was an impressionable teenager who was manipulated by a dominating older brother; that brain science shows that teenagers do not have a fully matured brain; that he came from a troubled upbringing, and was looking for guidance in a vulnerable time in his life; and that his family held to old cultural tradition that he obey the direction of his older brother....

Kendall said jurors in Tsarnaev’s case are likely to weigh each argument seriously, having sat through 27 days of testimony in both phases of the trial, and listening to more than 150 witnesses. “It’s not just paperwork,” Kendall said. “It’s after all this evidence that the decision is being based on factors the law considers prudent and right ones.”

Jurors are scheduled to hear closing arguments Wednesday morning and could begin their deliberations Wednesday afternoon.

A few prior related posts:

May 12, 2015 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

"Solitary Confinement: Common Misconceptions and Emerging Safe Alternatives"

The title of this post is the title of this notable new report released today from the Vera Institute of Justice. Here is how the report is described on this Vera webpage:

Segregated housing, commonly known as solitary confinement, is increasingly being recognized in the United States as a human rights issue.  While the precise number of people held in segregated housing on any given day is not known with any certainty, estimates run to more than 80,000 in state and federal prisons — which is surely an undercount as these do not include people held in solitary confinement in jails, military facilities, immigration detention centers, or juvenile justice facilities.  Evidence mounts that the practice produces many unwanted and harmful outcomes — for the mental and physical health of those placed in isolation, for the public safety of the communities to which most will return, and for the corrections budgets of jurisdictions that rely on it for facility safety.

Yet solitary confinement remains a mainstay of prison management and control in the U.S. largely because many policymakers, corrections officials, and members of the general public still subscribe to some or all of the common misconceptions and misguided justifications addressed in this report.  This publication is the first in a series on solitary confinement, its use and misuse, and ways to safely reduce it in our nation’s correctional facilities made possible in part by the Robert W. Wilson Charitable Trust.

May 12, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Ohio legislators moving forward on recommended death penalty reforms

As reported in this local article, headlined "Lawmakers want to exclude mentally ill from death penalty," a number of recommendations made by a death penalty task force on which I served here in Ohio are emerging in notable bills. Here are the basics:

Killers diagnosed as “seriously mentally ill” at the time of the crime could not be executed in Ohio under proposed legislation expected to be introduced Tuesday in the Ohio Senate.  If passed, the bill sponsored by Sens. Bill Seitz, R-Cincinnati, and Sandra Williams, D-Cleveland, would be a major change in Ohio, which now prohibits the execution of mentally disabled people but not the mentally ill.

Seitz and Williams have been jointly developing legislation based on recommendations from the Ohio Supreme Court Death Penalty Task Force, released in April 2014.  About a dozen task force recommendations are expected to be introduced in the General Assembly.

The bill would bar execution of people who, when they committed the crime, suffered from a serious mental illness that impaired their ability to “exercise rational judgment in relation to their conduct, conform their conduct to the requirements of the law, or appreciate the nature, consequences or wrongfulness of their conduct,” according to the National Alliance on Mental Illness Ohio, which supports the legislation....

Several of the 53 inmates executed in Ohio since 1999 could possibly have been excluded under the proposed change.  Wilford Berry, the first person to be executed when Ohio resumed capital punishment on Feb. 19, 1999, was considered to have mental illness with delusions.  At one point, Berry said he saw the angel of death sitting with him in his prison cell.

NAMI and the Ohio Psychiatric Physicians Association wrote a letter to lawmakers seek support for the legislation.  “We believe that those who commit violent crimes while in the grip of a psychotic delusion, hallucination or other disabling psychological condition lack judgment, understanding or self-control.  Until such time as the U.S. Supreme Court decides on this question, the responsibility for prohibiting the execution of such individuals in Ohio rests with the Ohio General Assembly.”...

Other task force proposals to be unveiled in the legislature in the future are establishing a statewide indigent death-penalty litigation fund in the Ohio Public Defender's office; requiring certification for coroner's offices and crime labs; and prohibiting convictions based solely on uncorroborated information from a jailhouse informant.

May 12, 2015 in Death Penalty Reforms, Offender Characteristics, Who Sentences? | Permalink | Comments (0) | TrackBack

“Callous and Cruel: Use of Force against Inmates with Mental Disabilities in US Jails and Prisons”

The title of this post is the title of this big new Human Rights Watch Report which documents worrisome use of force against prisoners with mental health problems in the United States.  Here is an excerpt from the report's introduction:

Across the United States, staff working in jails and prisons have used unnecessary, excessive, and even malicious force on prisoners with mental disabilities such as schizophrenia and bipolar disorder.

Corrections officials at times needlessly and punitively deluge them with chemical sprays; shock them with electric stun devices; strap them to chairs and beds for days on end; break their jaws, noses, ribs; or leave them with lacerations, second degree burns, deep bruises, and damaged internal organs.  The violence can traumatize already vulnerable men and women, aggravating their symptoms and making future mental health treatment more difficult.  In some cases, including several documented in this report, the use of force has caused or contributed to prisoners’ deaths.

Prisons can be dangerous places, and staff are authorized to use force to protect safety and security. But under the US constitution and international human rights law, force against any prisoner (with mental disabilities or not) may be used only when — and to the extent — necessary as a last resort, and never as punishment.

As detailed in this report, staff at times have responded with violence when prisoners engage in behavior that is symptomatic of their mental health problems, even if it is minor and non-threatening misconduct such as urinating on the floor, using profane language, or banging on a cell door.  They have used such force in the absence of any emergency, and without first making serious attempts to secure the inmate’s compliance through other means.  Force is also used when there is an immediate security need to control the inmate, but the amount of force used is excessive to the need, or continues after the inmate has been brought under control.  When used in these ways, force constitutes abuse that cannot be squared with the fundamental human rights prohibition against torture or other cruel, inhuman, or degrading treatment or punishment.  Unwarranted force also reflects the failure of correctional authorities to accommodate the needs of persons with mental disabilities.

There is no national data on the prevalence of staff use of force in the more than 5,000 jails and prisons in the United States.  Experts consulted for this report say that the misuse of force against prisoners with mental health problems is widespread and may be increasing.  Among the reasons they cite are deficient mental health treatment in corrections facilities, inadequate policies to protect prisoners from unnecessary force, insufficient staff training and supervision, a lack of accountability for the misuse of force, and poor leadership.

It is well known that US prisons and jails have taken on the role of mental health facilities. This new role for them reflects, to a great extent, the limited availability of community-based outpatient and residential mental health programs and resources, and the lack of alternatives to incarceration for men and women with mental disabilities who have engaged in minor offenses.

According to one recent estimate, correctional facilities confine at least 360,000 men and women with serious conditions such as schizophrenia, bipolar disorder, and major depression.  In a federal survey, 15 percent of state prisoners and 24 percent of jail inmates acknowledged symptoms of psychosis such as hallucinations or delusions.

What is less well known is that persons with mental disabilities who are behind bars are at heightened risk of physical mistreatment by staff.  This report is the first examination of the use of force against inmates with mental disabilities in jails and prisons across the United States.  It identifies policies and practices that lead to unwarranted force and includes recommendations for changes to end it.

May 12, 2015 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (2) | TrackBack

May 11, 2015

Notable Ohio county prosecutor calls pot prohibition a "disastrous waste of public funds"

Images (9)As reported in this Cincinnati Enquirer article, headlined "Prosecutor Deters OK with legalizing pot," a high-profile prosecutor in Ohio is now publicly getting involved with efforts to reform the state's marijuana laws. Here are the details:

The campaign to legalize marijuana in Ohio found an unlikely friend Monday in Hamilton County Prosecutor Joe Deters.

Deters, a life-long Republican and law-and-order prosecutor, said he agreed to lead a task force on the potential impact of legalization in part because he's been unhappy for years with the state's marijuana laws. He said they waste taxpayer dollars and target people who typically are not much of a threat to society.

"I think they're outdated and ludicrous," Deters said of marijuana laws. "I don't use marijuana, but I know people who do use marijuana, and I'd rather deal with someone who smoked a joint than someone who drank a bottle of vodka any day of the week."

When asked if he favors legalization, Deters told The Enquirer: "I don't have any problem with it at all."

ResponsibleOhio, the group of wealthy investors campaigning for legalization, asked Deters to lead the task force. Deters said he's not being paid for his work on the task force and agreed to do it because he's interested in the issue and the potential impact on law enforcement.

He said finding an affordable and efficient way to test drivers who are suspected of being impaired by marijuana use is one of his concerns. "There is a public safety element to this," Deters said. His goal is to produce a report on the impact of legalization within a few months....

Deters said he doesn't buy the argument that prisons are filled with low-level drug offenders, but he does think the time and money devoted to marijuana enforcement could be better spent elsewhere. "It's been a disastrous waste of public funds," Deters said....

Deters said he's not taking a position on ResponsibleOhio's proposed business model, but he said it makes sense for the state to regulate and tax marijuana. "You can walk outside your building and buy marijuana in 10 minutes," Deters said. "The question is, do we want schools and local governments getting the money or the bad guys?"

He said it's also wise for the state to prepare for legalization, whether or not ResponsibleOhio succeeds, because voters seem more willing to support it and other states are adopting similar measures. "The days of 'reefer madness' are gone, because that's not the reality," Deters said, referring to the 1950s-era movies that vilified marijuana and those who used it.

He said he's reaching out now to academics, elected officials and law enforcement to participate in the task force.

I have long known and respected the work of Joe Deters, even though we have sometimes disagreed on various professional matters through our work on the Ohio Death Penalty Task Force and in other settings.  I had heard from various folks involved with the ResponsibleOhio campaign that they were seeking to have a prominent, knowledgeable person running a task force to examine these important marijuana reform topics, and I am especially pleased to see that Joe Deters is now officially and publicly at the helm.

Cross-posted at Marijuana Law, Policy and Reform

May 11, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

"Brain Science and the Theory of Juvenile Mens Rea"

The title of this post is the title of this notable new paper by Jenny Carroll now available via SSRN. Here is the abstract:

The law has long recognized the distinction between adults and children.  A legally designated age determines who can vote, exercise reproductive rights, voluntarily discontinue their education, buy alcohol or tobacco, marry, drive a car, or obtain a tattoo. The Supreme Court has repeatedly upheld such age-based restrictions, most recently constructing an Eighth Amendment jurisprudence that bars the application of certain penalties to juvenile offenders.  In the cases of Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, the Court's jurisprudence of youth relies on emerging neuroscience to confirm what the parents of any teenager have long suspected: adolescents' cognitive abilities and thought processes differ from their adult counterparts.  Children are different than adults.

In these rulings, the Court recognized that brain development affects the legal construct of culpability and so should affect punishment.  The Court reasoned that without mature thought processes and cognitive abilities, adolescents as a class fail to achieve the requisite level of culpability demonstrated in adult offenders.  As such, juveniles were categorically spared the death penalty and, in some instances, a sentence of life in prison without the possibility of parole.  To date, the Court has limited the application of this principle to punishment. The logic of the Court's decisions, however, applies just as strongly to the application of substantive criminal law.  Just as modern neuroscience counsels against the imposition of certain penalties on juvenile offenders, so it counsels toward a reconsideration of culpability as applied to juvenile offenders through the element of mens rea.  In this paper I argue that the failure to extend this jurisprudence of youth to the mental element undermines the very role of mens rea as a mechanism to determine guilt.

May 11, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Will and should famed abolitionist nun, Sister Helen Prejean, be allowed to testify at Boston bombing sentencing trial?

Images (4)The question in the title of this post is the interesting legal question to be resolved this week in federal court in Boston as the defense team finalizes its mitigation case on behalf of Boston Bomber Dzhokhar Tsarnaev.  This Boston Globe piece, headlined "Will judge allow nun to testify for Tsarnaev defense?," provides some context:  

While everybody in and around Boston is celebrating Mother’s Day and spring sunshine, George O’Toole has something weighing on him. O’Toole is a judge and has presided over the trial of convicted Boston Marathon bomber Dzhokhar Tsarnaev with his typical geniality. But even genial judges have to make tough decisions.

The trial, which began with jury selection in the first week of January, and testimony in the first week of March, is winding down. If all goes to plan, and it seldom does in trials, the jury could be sent away by the end of this week, ready to contemplate sentencing Tsarnaev to death or life in prison without the possibility of parole.

But before any of that happens, George O’Toole has to decide whether a 76-year-old Roman Catholic nun can testify as part of the effort to save a 21-year-old Islamic extremist from death. The nun in question is Helen Prejean, a Sister of St. Joseph, and if you ask what that means, you never had nuns.

Sister Helen Prejean is an icon of the antideath penalty movement, something of a celebrity. “Everybody knows Sister Helen,” said David Hoose, a Northampton defense attorney who has worked on death penalty cases. And it’s true, a lot of Americans do know her, at least vicariously. They know her as Susan Sarandon, the actress who won an Oscar for her portrayal of Sister Helen in the 1995 film “Dead Man Walking.”

Twenty years after Sister Helen became the face of the antideath penalty movement in America, she is here in Boston, poised, if O’Toole allows it, to be the last witness for the defense in the trial of Dzhokhar Tsarnaev.

No one saw this coming. As prominent as the New Orleans-based Sister Helen is in the antideath penalty movement, she is not known for testifying in death penalty cases. But she wanted to get involved in this case, somehow. Inevitably, she found herself in the defense camp....

[A]s someone who has counseled death row inmates, Sister Helen can impart [the] message ... that a death sentence hardly guarantees death.

Since 1988, when the federal government got back in the business of executing people, the government has sought the death penalty in nearly 500 cases. In 232 of those cases, there was a guilty verdict where jurors had to decide between life and death, and in 79 cases they chose death. Of those 79, only three have been executed. It’s possible that Dzhokhar Tsarnaev would be No. 4 if the jury sentences him to death, but the odds are against it.

In the meantime, Judge O’Toole has to decide on the government’s motion to exclude Sister Helen’s testimony. In death penalty cases, the defense is given a wide berth in calling witnesses as they present mitigating evidence.  Even if O’Toole is on the fence about the relevance of Sister Helen’s testimony, and is inclined to tightly limit the scope of what she can speak to, he might not want to risk a reversal of the whole trial over one final witness.

The defense may only want Sister Helen to repeat one of her stock lines: “People are more than the worst thing they have ever done in their lives.” That has been the underlying message of the defense all along. That Dzhokhar Tsarnaev, as a human being, is more than the unspeakable, unforgivable things he did one week in April 2013.

In this post at Crime & Consequences, Kent Scheidegger reasonably asks "What does Helen Prejean know that is relevant to the Tsarnaev case?".  I think Kent (and others in the comments) make sound points that could provide a legal justification for the district judge here precluding Prejean from being able to testify at the sentencing hearing on behalf of the Boston bomber.  But I also think, as the article above hints, judges are generally disinclined to preclude completely any offered defense testimony at the sentencing-phase of a capital trial.  I thus predict that the district judge here will allow Prejean to testify in some limited way if the defense presses aggressively for her to be a witness.

A few prior related posts:

UPDATE: Apparently Prejean started to testify not long after I wrote this post. This new USA Today article, headlined "Sister Helen Prejean: Tsarnaev 'genuinely sorry for what he did'," starts with this account of what transpired:

Sister Helen Prejean, the Catholic nun and anti-death penalty activist whose story came to fame with the 1995 film Dead Man Walking, took the stand on Monday in the penalty phase of convicted Boston Marathon bomber Dzhokhar Tsarnaev's trial. She said he is "genuinely sorry for what he did," and told her how he felt about the suffering he caused to the bombing's victims.

"He said it emphatically," Prejean said. "He said no one deserves to suffer like they did." She added, "I had every reason to think he was taking it in and he was genuinely sorry for what he did."

Prejean said she had met with Tsarnaev five times since early March and that he "kind of lowered his eyes" when he spoke about the victims. His "face registered" what he was saying. She interpreted his remorseful sentiment "as absolutely sincere," she said.

Prejean said she talked with Tsarnaev about both their faiths: his Islam and her Catholicism. "I talked about how in the Catholic Church we have become more and more opposed to the death penalty," she said, quickly drawing an objection from the prosecution.

Defense attorney Miriam Conrad, questioning Prejean, interjected, "Stop you right there." Conrad asked Prejean what she heard in Tsarnaev's voice she he spoke about the victims' suffering. "It had pain in it," she said.

May 11, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

You be the judge: what federal sentence for latest CIA media leaker?

As explained via this Washington Post article, headlined "Judge faces choices in sentencing CIA leaker," a federal judge in Washington DC has a tough sentencing call to make this afternoon:

The way prosecutors see it, ex-CIA officer Jeffrey Sterling is a devious malcontent who spread classified half-truths to a New York Times reporter, seriously harming national security.  By defense attorneys’ telling, Sterling is a compassionate, hardworking man whose misdeeds have been greatly exaggerated.

Which account U.S. District Judge Leonie M. Brinkema believes will ultimately shape the sentence she imposes Monday on the 47-year-old Missouri man, who was convicted in January of giving away sensitive information about an operation to thwart Iran’s nuclear ambitions.  The range of options she has to consider is broad.

Defense attorneys are arguing for a sentence in line with other convicted leakers — including former CIA director and retired general David Petraeus, who was sentenced last month to two years of probation and a $100,000 fine for leaking classified information to his mistress and biographer.  Prosecutors are advocating a “severe” penalty, and they have noted that federal sentencing guidelines call for 19 years and seven months at the low end and 24 years and five months at the high end.

Neither side has offered a specific recommendation on prison time.  Experts say a sentence approaching two decades is unlikely: The sentencing guidelines, they say, seem to be intended for spies nefariously helping foreign governments — a characterization that does not fit Sterling’s case.

Prosecutors have argued such spies are charged under a different statute, and they have noted the U.S. Sentencing Commission “has not seen fit to carve out any exception or departure for disclosing national defense information to the media or the public.”

But experts say Brinkema is likely to impose a penalty well below what the sentencing guidelines call for. “Frankly, I can’t imagine her not departing downward here,” said Dan Schwager, a former federal prosecutor now in private practice at Martin & Gitner.

But Sterling, experts say, should probably expect a tougher sentence than Petraeus, even though his defense attorneys assert that the two men are not all that different.  “It’s hard to put something like that completely out of your mind. It’s hanging out there,” former federal prosecutor Randall Eliason, who teaches law at George Washington University Law School, said of Petraeus’s recent sentence.  “At the same time, at the risk of sounding cliche, every case is different, and there are some significant differences — at least to me — between the cases.”

Sterling was convicted of nine criminal counts for providing New York Times reporter James Risen with classified information about the CIA operation, which involved giving faulty nuclear blueprints to Iran. Prosecutors argued Sterling was a disgruntled employee with a vendetta against the CIA because of employment grievances, and he fed Risen a misleading story with some accurate, classified details to paint the agency as inept. As as result, prosecutors argued, the United States was forced to abandon one of its few mechanisms to keep Iran’s nuclear ambitions in check.

Experts say Brinkema is likely to weigh two key factors as she assesses prosecutors’ request for a harsh sentence: Sterling’s motive, and the harm his illegal disclosures caused. Eliason said those factors might separate Sterling from Petraeus, who did not seem to have any malevolence and whose leaks never wound up in any published material. “There’s kind of this spectrum of possible conduct, and I think someone like Sterling falls somewhere in the middle,” Eliason said.

Prosecutors themselves asserted in a recent filing that Sterling’s case stood apart from other recently convicted leakers, including Petraeus; former CIA officer John Kiriakou, who revealed the name of a covert officer and was sentenced to 30 months in prison; and former State Department arms expert Stephen Jin-Woo Kim, who leaked classified information to a Fox News reporter and was sentenced to 13 months in prison....

Brinkema, though, might disagree with the government’s assessments, experts said. Schwager said that, not unlike other recent leak cases, “ego” seemed to play a key role in motivating Sterling. And the damage Sterling’s disclosures caused, Schwager said, was hard to point to explicitly — a fact that would not be lost on the judge. “She knows the difference between specific harm and speculative harm,” Schwager said.

Prior related posts:

May 11, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

May 10, 2015

"Too Many People in Jail? Abolish Bail"

The title of this post is the headline of this notable New York Times op-ed authored by Maya Schenwar. Here are excerpts:

How can we reduce the enormous populations of our country’s local jails?

Last month, Mayor Bill de Blasio of New York unveiled a plan to decrease the population of the Rikers Island jail complex by reducing the backlog of cases in state courts.  About 85 percent of those at Rikers haven’t been convicted of any offense; they’re just awaiting trial, sometimes for as long as hundreds of days.

Mayor de Blasio’s plan is a positive step.  Yet it ignores a deeper question: Why are so many people — particularly poor people of color — in jail awaiting trial in the first place? Usually, it is because they cannot afford bail....

This is a national problem.  Across the United States, most of the people incarcerated in local jails have not been convicted of a crime but are awaiting trial.  And most of those are waiting in jail not because of any specific risk they have been deemed to pose, but because they can’t pay their bail.

In other words, we are locking people up for being poor.  This is unjust.  We should abolish monetary bail outright.

Some will argue that bail is necessary to prevent flight before trial, but there is no good basis for that assumption.  For one thing, people considered to pose an unacceptable risk of flight (or violence) are not granted bail in the first place.  (Though the procedures for determining who poses a risk themselves ought to be viewed with skepticism, especially since conceptions of risk are often shaped, tacitly or otherwise, by racist assumptions.)

There is also evidence that bail is not necessary to ensure that people show up for trial.  In Washington, D.C., a city that makes virtually no use of monetary bail, the vast majority of arrestees who are released pretrial do return to court, and rates of additional crime before trial are low.

In addition to being unjust and unnecessary, pretrial incarceration can have harmful consequences.  Not only do those who are in jail before trial suffer the trauma of confinement, but in comparison with their bailed-­out counterparts, they are also more likely to be convicted at trial.  As documented in a 2010 Human Rights Watch report, the legal system is substantially tougher to navigate from behind bars.  People in jail face more pressure to accept plea bargains — often, ones that aren’t to their advantage — than do those confronting their charges from home.

Those who spend even a few days in jail can lose their jobs or housing during that time. Single parents can lose custody of their children.  By exacerbating the effects of poverty, and by placing people in often traumatizing circumstances, pretrial incarceration may actually lead to more crime.

Bail also raises issues of racial injustice.  A number of studies have shown that black defendants are assigned higher bail amounts than their white counterparts.  This discrepancy is compounded by the fact that black people disproportionately live in poverty and thus unduly face challenges in paying bail.

May 10, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0) | TrackBack

Florida prosecutor says he will not seek 15-year prison terms for sex-on-beach convictions

Images (2)As noted in this recent post, "Imprisonment for 15 years for sex on the beach?!?! Really?!?!," at least one member of an indecent couple in Florida seemed to be facing an indecent prison sentence for some shoreline dirty dancing. But this local article, headlined "State attorney won't seek 15-year prison sentences for Bradenton Beach sex-on-the-beach couple," now suggests that prosecutors are going to be seeking a much less extreme sanction for these miscreants. Here are the latest details:

State Attorney Ed Brodsky said Thursday he will not seek the maximum possible punishment — 15 years in prison — for the couple convicted of having sex in public on Bradenton Beach.

Brodsky, elected state attorney for the 12th Judicial District, said his office never intended to seek the maximum 15-year sentence against Jose Caballero, 40, or Elissa Alvarez, 20, for having sex on Cortez Beach in July.

The couple was found guilty Monday on charges of lewd and lascivious exhibition after a video played in court showed Alvarez moving on Caballero in a sexual manner. Witnesses testified a 3-year-old girl had seen the couple.

The charge carries a maximum sentence of 15 years in prison, and requires both to register as sex offenders. "It was never our intention to seek 15 years for either of them," Brodsky said. "That's not a reasonable sentence."

Defense attorney Ronald Kurpiers said because Caballero served a previous prison sentence for cocaine trafficking within the past three years and the prosecution had filed prison release reoffender paperwork, Caballero would be sentenced to the maximum sentence of 15 years under Florida's prisoner release reoffender law.

Kurpiers said if Brodsky was saying they weren't seeking 15 years, it meant they had withdrawn the PRR. "I've never experienced that before in all my years in law," Kurpiers said. "I'm honestly emotional about it. That was a huge hurdle."

Brodsky said he wasn't willing to discuss what kind of sentences they will seek and a sentencing hearing hasn't been scheduled. Kurpiers said the judge would now have some discretion instead of an automatic sentence for Caballero. Kurpiers said he would try to have the sentence lowered. "I need to get out my knee pads so I can get down and beg," Kurpiers said.

Brodsky refuted the claim he would be seeking the maximum punishment after Families Against Mandatory Minimums, a Washington, D.C.-based interest group that fights mandatory minimum prison sentences, said they called his office Thursday to urge prosecutors not seek 15 years in prison for Caballero.

"As outrageous as Mr. Caballero's behavior was, it would be even more outrageous for the state to make him spend 15 years in prison," said Julie Stewart, president and founder of the organization, in a release. "As a parent, I would not want my children to see people having sex on a public beach in the middle of the day. But as a taxpayer, I would be even more offended to waste hundreds of thousands of dollars to punish Mr. Caballero's irresponsible behavior."...

A campaign was also launched Thursday on Causes.com titled: "Free couple facing 15 years in prison for sex on the beach." Led by Vitor Ribeiro, whose Facebook account lists Portugal as home, the campaign received more than 500 signatures by early Thursday evening. "Having sex on the beach is not a crime worthy of such a barbaric sentence," reads the campaign's subtitle.

Stewart said the state plea offer to Caballero for two and a half years in prison prior to the trial was evidence it didn't believe he deserved 15 years for the crime. Brodsky confirmed they had made the plea offer, and Caballero chose to reject it to go to trial. Kurpiers said he "strongly recommended" his clients take the plea deal, but ultimately it was their choice to refuse....

Alvarez and Caballero are in the Manatee County jail awaiting sentencing.

Beyond its prurient elements, this case provides a notable case-study in the import and impact of mandatory minimum sentencing schemes and the sentencing power mandatory minimums necessarily place in the hands of prosecutors.

For starters, I doubt the defense attorney would have "strongly recommended" that one defendant accept a 2.5-year prison sentence for merely having sex on the beach absent the threat of a 15-year mandatory prison term if the defendant exercised his right to go to trial.  How could and would a defense attorney reasonably tell a client that a long prison term is a reasonable offer for this behavior and giving up all rights to challenge the state's case absent the threat of a much more extreme mandatory prison term if convicted after a trial?

Next, as I understand Florida law in this setting, the only reason now that defendant Caballero will not get 15 years in state prison is because the prosecutor now has decided to, in essence, nullify the Florida "prison release reoffender" (PRR) law by taking back the paperwork needed to invoke its mandatory sentencing consequences.  Absent the media scrutiny that this case has come to generate, would the prosecutor likely have been so quick to say he never sought an extreme 15-year PRR sentence for Caballero?.

Critically, if the prosecutor never thought this was a proper PRR case, why did the prosecutor initially file the PRR paperwork in the first instance against Caballero?   Is there likely any reason other than to to try to force a plea deal through the threat of an extreme mandatory prison sentence — a threat which would essentially require the defense attorney to "strongly recommended" that defendant Caballero accept the 2.5-year prison sentence offered by the prosecutor?

Finally, only when the defendants exercised their right to trial — and thereafter likely only because this case started to garner attention — do we now here the prosecutor say on the record that a 15-year term was never sought and would not be reasonable.  In other words,  only once the media saw the prosecutor with his hand in the extreme mandatory-sentencing cookie jar did he pull his hand out and say he never really wanted that 15-year prison term for Caballero.

It is reassuring to see that media attention can and will sometimes prompt a prosecutor in an individual case to exercise his power and discretion to take an extreme mandatory sentence of the table after a trial conviction.  But these problems only arise because of the existence of extreme and broad mandatory minimums, and that is why I generally believe such laws make for bad public policy because I think our sentencing system should incorporate true checks-and-balances rather than be functionally controlled  by executive branch fiat.

Prior related post:

May 10, 2015 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack