March 26, 2016
Wouldn't (severe? creative?) alternatives to incarceration be the best response to animal cruelty convictions?
The question in the title of this post is prompted by this local story of a high-profile sentencing of a high-profile defendant convicted of multiple misdemeanor counts of animal cruelty. The piece is headlined "Former Raven Terrence Cody sentenced to nine months in Baltimore County animal cruelty case," and here are the details:
Baltimore County judge sentenced former Ravens player Terrence Cody on Thursday to nine months in jail in an animal cruelty case that drew interest across the country. Cody, 27, was convicted in November of multiple misdemeanors in connection with the death of his dog, Taz, last year, as well as two misdemeanor drug charges. Prosecutors said Taz starved to death.
Cody faced the possibility of more than two years of incarceration. More than 5,000 people signed an online petition urging Judge Judith C. Ensor to impose the maximum sentence. Ensor said that she did not discount the petition but that she had to make an independent decision based on the case. "My responsibility is to listen and to make the best decision I can," she said at the sentencing hearing.
Defense attorney Joe Murtha acknowledged that Cody neglected Taz but said that Cody loved the animal and didn't intend for it to die. He said that Cody was emotionally incapable of caring for the dog and that he suffers from depression. "His level of depression is so significant that he's become just isolated," said Murtha, who added that his communication with his client has been limited because of Cody's depression.
Prosecutor Adam Lippe discounted the idea that Cody was depressed. He argued for the maximum amount of jail time — 905 days. "I'm sure every defendant awaiting sentencing is depressed," Lippe said.
Lippe said during the trial that the dog starved to death at Cody's former home in Reisterstown over a period of at least a month. Cody testified at the trial that he believed Taz was suffering from worms.
Cody spent $8,000 to buy and import Taz, a Canary mastiff, from Spain. He took the animal to a Reisterstown animal hospital a few hours before it died. The dog, which once weighed at least 100 pounds, was down to less than 50 pounds at that point. Cody — whose nickname at the University of Alabama was Mount Cody — was drafted by the Ravens as a defensive lineman in 2010. The team released him when he was indicted last year.
After the trial last year, Cody was acquitted of two felony counts of aggravated animal cruelty. Ensor, who presided over the bench trial, said Thursday she was convinced that Cody did not torture Taz intentionally. "I remain firm" in that belief, she said.
The judge also sentenced Cody to probation before judgment for illegally possessing an alligator and for possessing drug paraphernalia. Police found a gas-mask bong and a 6-foot-long green glass bong in the home. She imposed suspended sentences for several counts, including a marijuana charge. She also sentenced Cody to 18 months of supervised probation and said he must undergo mental health treatment. During the probation period, he is not allowed to own or possess an animal. Cody will serve the sentence at the Baltimore County Detention Center in Towson.
Cody's girlfriend, Kourtney J. Kelley, 28, was also convicted in the animal cruelty case. She was sentenced last month to 60 days and has since been paroled. She was found guilty of five counts in connection with neglecting Taz. Cody, wearing a black hoodie and jeans, briefly addressed the court, saying he accepted responsibility. He also said he believed Kelley should not have been punished in the case....
Lippe said he was satisfied with the sentence. He said Cody had other dogs that were "fat and happy," but for some reason he treated Taz differently. "I can't explain to you why he decided to kill this animal," Lippe said. "It makes no sense at all."
I am huge aminal lover within a family which has always cared greatly about pets both usual (e.g., my dog and cat are hanging with me as I type this) and unusual (e.g., I have a bunch of parrot, angel fish and hermit crab stories). Consequently, I fully understand how emotional so many folks get about animal cruelty and why there is often strong support for imposing the harshest possible sentences on those persons who get convicted of animal cruelty crimes.
Nevertheless, as the question in the title of this post suggests and to parrot the words of the local prosecutor in this case, it really makes so sense at all to me to view lengthy terms of incarceration as the most efficacious response to these sorts of crimes. Specifically, to focus on this case, did prosecutor Adam Lippe really think the citizens of Baltimore would be better off if former NFL player Terrence Cody served nearly 3 years in a local jail (at significant taxpayer expense) rather than, say, spending the next few years trying to get back into the NFL to make large sums of money that could be donated to animal protection societies or working publicly on helping animals as a part of community service program?
I fully understand the potential incapacitative benefits of incarceration for dangerous people with a history of seriously risky or harmful behaviors. But unless there is strong reason to believe Terrence Cody is a real danger to others, I think the the citizens and animals of Baltimore could and would be much better served through severe and creative alternatives to incarceration in a case like this. But, problematically in the US and as part of our transformation into "incarceration nation," it seems that nearly all prosecutors and most members of the general public embrace the notion that the only way to be tough is through extended (and costly) periods of incarceration.
Japan conducts two old-school executions despite international criticisms
As reported in this Guardian article, headlined "Japan executes two prisoners amid protests," the land of the rising sun continues to raise its modern execution totals. Here are the details:
Human rights campaigners have condemned Japan’s use of the death penalty after two inmates were hanged, bringing the number of executions to 16 since the prime minister, Shinzo Abe, took office in late 2012. The executions were carried out on Friday, just weeks before Japan is to host the G7 leaders summit: Japan and the US are the only two G7 nations that retain the death penalty, while European countries are among the most vocal critics of Japan’s secretive executions.
Yasutoshi Kamata, 75, was hanged in Osaka for the murders of five people — including a nine-year-old girl — between 1985 and 1994, according to Japanese media. Junko Yoshida was convicted of killing two men in the late 1990s to obtain life insurance payments. The 56-year-old, who was executed in Fukuoka, is the first woman to be hanged in Japan since 2012.
Campaigners accused Japan of resisting the global trend towards the abolition of the death penalty in the mistaken belief that the punishment acts as a deterrent. “Despite the fact that about 140 countries in the world have already abandoned or have stopped executions for more than a decade, the Japanese government is turning its back on the trend,” said Hideki Wakabayashi, secretary general of Amnesty International Japan.
Opinion polls in Japan show high levels of public support for the death penalty, although campaigners say the surveys are worded in such a way as to play on the public’s fear of crime. In a 2010 poll, 86% of respondents said the use of the death penalty was “unavoidable” — a sentiment that strengthened after a doomsday cult carried out a sarin gas attack on the Tokyo subway in 1995, killing 13 people and injuring thousands more.
Friday’s executions mean the number of inmates facing the death sentence in Japan now stands at 124. The hangings also highlighted the long periods — on average more than five years between 2005 and 2014 — that inmates are forced to wait to be executed. Kamata’s sentence was finalised 11 years ago, and Yoshida’s almost six years ago, according to Japanese media.
Death row inmates are typically given only a few hours’ notice of their execution, with relatives and lawyers informed only after it has been carried out. In a damning 2009 report, Amnesty claimed Japan’s death row inmates were being driven insane and exposed to “cruel, inhuman and degrading” treatment.
March 25, 2016
"Poor white kids are less likely to go to prison than rich black kids"
The title of this post is the headline of this Wonkblog posting via the Washington Post discussing some recent empirical research on sentencing outcomes appearing in the latest issue of the journal Race & Social Problems. Here is the post's discussion of the research:
It's a fact that people of color are worse off than white Americans in all kinds of ways, but there is little agreement on why. Some see those disparities as a consequence of racial discrimination in schools, the courts and the workplace, both in the past and present. Others argue that economic inequalities are really the cause, and that public policy should help the poor no matter their race or ethnicity. When it comes to affirmative action in college admissions, for example, many say that children from poor, white families should receive preferential treatment, as well.
In some ways, though, discrimination against people of color is more complicated and fundamental than economic inequality. A stark new finding epitomizes that reality: In recent decades, rich black kids have been more likely to go to prison than poor white kids. "Race trumps class, at least when it comes to incarceration," said Darrick Hamilton of the New School, one of the researchers who produced the study.
He and his colleagues, Khaing Zaw and William Darity of Duke University, examined data from the National Longitudinal Survey of Youth, a national study that began in 1979 and followed a group of young people into adulthood and middle age. The participants were asked about their assets and debts, and interviewers also noted their type of residence, including whether they were in a jail or prison.
The researchers grouped participants in the survey by their race and their household wealth as of 1985 and then looked back through the data to see how many people in each group ultimately went to prison. Participants who were briefly locked up between interviews might not be included in their calculations of the share who were eventually incarcerated.
About 2.7 percent of the poorest white young people — those whose household wealth was in the poorest 10th of the distribution in 1985, when they were between 20 and 28 years old — ultimately went to prison. In the next 10th, 3.1 percent ultimately went to prison.
The households of young people in both of these groups had more debts than assets. In other words, their wealth was negative. All the same, their chances of being imprisoned were far less than those of black youth from much more affluent circumstances. About 10 percent of affluent black youths in 1985 would eventually go to prison. Only the very wealthiest black youth — those whose household wealth in 1985 exceeded $69,000 in 2012 dollars — had a better chance of avoiding prison than the poorest white youth. Among black young people in this group, 2.4 percent were incarcerated.
Hispanic participants who were less affluent in 1985 were more likely to be eventually incarcerated than their white peers with similar wealth, but less likely than black participants....
It could be that the white participants in the study still had other advantages over their black peers, even if they had been incarcerated. Perhaps they went to better schools, or lived in areas where it was easier to find work. At the same time, another reason for the disparity between black and white wealth could be that employers make negative inferences about black workers' pasts, even those who have never been to prison....
In a way, untangling economic and racial inequalities is a chicken-and-egg problem. In criminal justice, though, you can't just explain away the disproportionate rates at which black and Hispanic youths end up in prison by pointing out that many people of color did not grow up with the same economic advantages as their white peers.
The full research article discussed here, which is titled "Race, Wealth and Incarceration: Results from the National Longitudinal Survey of Youth," can be accessed at this link.
Florida has first capital case head to jury sentencing after Hurst-required reforms
Roughly 10 weeks after the Supreme Court declared unconstitutionally Florida's death sentencing procedures in Hurst v. Florida, No. 14–7505 (S. Ct. Jan. 12, 2015) (available here), a group of jurors have the chance to create a new capital test case as to whether the Florida's now-revised death sentencing procedures can survive another constitutional attack. This local article, headlined "Hawkins test of new sentencing rules," explains:
For the first time since the Florida Legislature revised capital punishment sentencing guidelines — requiring a favorable vote by 10 of 12 jurors — a defendant could get the death penalty.
Antowan Hawkins was convicted Thursday of felony first-degree murder, robbery, arson, tampering with physical evidence and grand theft of a motor vehicle in the death of 24-year-old Aaron Goodwin. Today, jurors will return to determine Hawkins' sentence.
But prior to his week-long trial, his attorneys filed motions calling the new jury guidelines unconstitutional. “This scheme leaves Florida as one of only two states that authorize the imposition of the death penalty on less than a unanimous jury verdict,” Hawkins attorney David Collins wrote in a March 21 filing. “This scheme is contrary to evolving standards of decency regarding the humane imposition of capital punishment.”
Jurors Thursday found Hawkins guilty of felony murder instead of premeditated murder, a decision that could play into the sentencing guidelines introduced in court today. "That can be perceived that you’re not quite sure who is actually the one who killed Mr. Goodwin," said Chuck Collins, Hawkins' attorney, during his opening statement. "Are you prepared to sanction the execution of someone not knowing beyond a reasonable doubt that he is the actual person who killed him?"
Prosecutors said in court Friday Hawkins took measures to conceal the killing of Goodwin by setting his South Adams Street sneaker shop on fire and driving his car to Jefferson County to set it ablaze. Testimony in the trial also suggested Hawkins may have gone to the store prior to the crime. "We see a pattern of destroying evidence to avoid being caught," said Assistant State Attorney for the 2nd Judicial Circuit Eddie Evans. "There was evidence the victim had seen the defendant before."
UPDATE: If you click through to the local article linked above, it now reports that jurors sentenced this capital defendant to life in prison without the possibility of parole after only an hour of deliberation. Consequently, some other case is going to become the test case for Florida's new capital sentencing procedures.
March 24, 2016
Pew develops new "punishment rate" metric to provide more nuanced perspective on state incarceration levels
Via email today I learned of this intriguing new report from the folks at Pew Trusts titled "The Punishment Rate: New metric evaluates prison use relative to reported crime." Here is the short data-heavy report starts and ends:
Researchers, policymakers, and the public rely on a variety of statistics to measure how society punishes crime. Among the most common is the imprisonment rate — the number of people in prison per 100,000 residents. This metric allows for comparisons of prison use over time and across jurisdictions and is widely seen as a proxy for punishment. States with high imprisonment rates, for example, are considered more punitive than those with low rates.
A more nuanced assessment of punishment than the ratio of inmates to residents is that of inmates to crime— what The Pew Charitable Trusts calls the “punishment rate.” This new metric gauges the size of the prison population relative to the frequency and severity of crime reported in each jurisdiction, putting the imprisonment rate in a broader context.
Using the punishment rate to examine the U.S. criminal justice system, Pew found that all states became more punitive from 1983 to 2013, even though they varied widely in the amount of punishment they imposed. The analysis also shows that the nation as a whole has become more punitive than the imprisonment rate alone indicates....
The long-term rise in U.S. imprisonment is a familiar story. Although the imprisonment rate is an essential tool in understanding correctional trends, it paints an incomplete picture of the nation’s and individual states’ punitiveness because it does not take crime rates into account. The punishment rate provides a more nuanced assessment by placing each jurisdiction’s imprisonment rate in the context of the severity and frequency of its crime.
Analysis of punishment rates over time and across jurisdictions makes clear that the nation has become more punitive. What’s more, many states punish crime significantly more—or less—than their imprisonment rates alone indicate. States with particularly high or low punishment rates and those that experienced significant increases in their punishment rates over time may benefit from identifying and examining the policy choices responsible for their rankings and trends.
Helpfully, the folks at The Marshall Project have this interesting piece discussing what the new Pew metric does and does not tell us. That piece is headlined "The Tricky Business of Measuring Crime and Punishment: Pew researchers release a new prison scorecard, but it ain’t perfect," and here are excerpts:
We’ve grown accustomed to a quantified world of ever more complicated data available at our fingertips, on everything from how we sleep and eat to how often left-handed pinch hitters hit ground rule doubles on rainy days. “The incredible databases of what we have for sports just blow away anything there is in criminal justice. It's kind of crazy,” said Adam Gelb, director of Pew’s Public Safety Performance Project, adding, “We can't answer some of the most basic questions about one of the most important functions of a society.”
Nearly five years ago, Gelb and Pew started by looking at recidivism — how often people released from prisons are arrested again for new offenses. But using recidivism alone to compare how states are doing at rehabilitating prisoners fell short. One state could have a lower recidivism rate simply because it tended to have more low risk offenders in its prisons. So then, Gelb said he began thinking about how to assess whether the “right” people are in prison, that is the serious, violent and repeat offenders most likely to commit new crimes.
Pew’s punishment rate focuses on the most serious felony offenses that lead to a year or more in state prison. The calculation divides each state’s imprisonment rate in a given year by the rate of crimes reported there, using the FBI’s Uniform Crime Reporting system. To account for some crimes being more serious and more likely to lead to longer prison sentences, Pew weights the annual crime rates by calculating the average time served for those crimes each year. After all of these calculations, Pew found that as America's imprisonment rate has gone up in the past three decades and as crime has dropped, the “punishment rate” rose by 165 percent.
While the methodology makes sense and is probably the best available considering the shortcomings of federal crime data, the punishment rate is not yet the magic metric. Unpacking the components of Pew’s punishment rate illustrates how tricky measuring criminal justice progress can be. The punishment rate depends on the number of crimes reported by the FBI. But the Uniform Crime Report, created in the 1920s, tracks only seven key crimes: murder, assault, rape, robbery, arson, burglary, larceny, motor vehicle theft. It excludes dozens of offenses — most notably drug crimes, which have been a major factor in the growth of prison populations. Pew’s report readily acknowledges that the Uniform Crime Report omits crimes for which roughly one-fifth of state prisoners are serving time.
“What that means is not to say that drug trafficking is not a serious crime, just that it's not reported and tracked in a way that you can support adding it to this formula,” Gelb said. “It does mean that — other things being equal — a state that has a lot of drug enforcement activity and stiff sentencing for drug offenses will have a higher punishment rate.”
The other trouble with the punishment rate is in the lag between crime and judgment. Pew is comparing the crime rate each year to the current prison population at that moment. It doesn't account for the people being sentenced each year or the prison intakes. It also doesn't look at what crimes those in prison were convicted of. So there is an inherent lag between when crimes happen and when someone might go to prison for them. Despite plummeting crime since the 1990s, the growth in the punishment rate didn’t overtake the rise in imprisonment until 2011. That may be partially explained by the gap in time between crime and incarceration, though Gelb contends that effect is ameliorated by calculating rolling averages for offense severity (but not the crimes themselves or the imprisonment rate). He said the adjustment is meant to be a barometer of the seriousness of crimes in a year rather than a “fine-tuned calculation.” But that lack of precision could undercut Pew’s implicit argument that in some states we are “punishing for punishment’s sake.”
I find especially important and notable Gelb's astute comment that the "incredible databases of what we have for sports just blow away anything there is in criminal justice." Especially as I am starting to prepare for my upcoming fantasy baseball draft, it is more than a bit disconcerting that I can easily find dozens of statistical projections for the Cleveland Indians' battery but no on-line sources to help predict how many batteries might be committed in Cleveland.
"To change the world, start with prisons"
The title of this post is the headline of this notable FoxNews commentary authored by Christian Colson. Here are excerpts:
One Easter weekend, I accompanied my father, Charles Colson, to a prison in South Carolina. We held a worship service on Death Row, and about 20 men came out of their cells to sing songs and listen to my dad give a message about the resurrection of Jesus.
My father, whose books on Christian life and thought have sold more than 5 million copies, could have spent Easter weekend in more influential pulpits. He could have commanded an audience of thousands of Christians who were well-resourced and well-connected, rather than men in prison jumpsuits. But instead, every Easter for decades following his release from prison in 1975 for a Watergate-related crime until his death in 2012, he chose to go back behind bars to celebrate with the incarcerated. My father understood that if we want to change the world, we must start behind bars.
The criminal justice system may not seem like the place to initiate cultural renewal, but no place could be better. When our nation’s 2.2 million prisoners are held in conditions that do little to help address the roots of criminal behavior, they remain likely to continue in a criminal lifestyle after they are released.
Prisoners might seem like improbable standard bearers for cultural transformation, but my dad believed wholeheartedly that whenever prisoners are transformed, they will transform the culture of their prisons and society at large....
Prisons are full of untapped potential. Under the right conditions, many people — like my father — can pay their debt to society, prepare for a new future and make the most of their second chance. A variety of prison programs that address the roots of criminal behavior through education, mentoring, substance-abuse treatment and more have been shown to reduce recidivism.
Legislation based on restorative values can support this goal. The Sentencing Reform and Corrections Act, now making its way through Congress, would require the Federal Bureau of Prisons to implement and incentivize programming to reduce rates of re-offense. This is good news not just for prisoners but for everyone affected by crime and incarceration. When recidivism rates go down, more children grow up seeing their parents outside of a prison waiting room. There are fewer victims. Communities have a chance to flourish as they benefit from the contributions of members who are successfully reintegrating.
At the first Easter, mourners gathered at the tomb of a man who had been executed with criminals. There seemed to be no future for his followers, a small group of poorly educated misfits with no worldly power or influence. And yet, the nascent Christian movement transformed the culture of the Roman Empire and the entire modern history of the world.
When my dad spent “Resurrection Sunday” behind bars with prisoners, including those condemned to die, he often invoked that first Easter, where the hope of the Gospel emerged from a sealed tomb that was supposed to be as secure as any prison.... As Easter reminds us, the change the world most needs sometimes comes from unexpected places.
Fascinating issues emerging in run up to federal sentencing of former House Speaker Dennis Hastert
This new Politico article, headlined "New Hastert accuser emerges: Judge acknowledges that the case against the former House speaker involves alleged sex abuse," flags some of the notable issues emerging as the federal sentencing of a notable former member of Congress approaches. Here are the details:
A previously unidentified victim of alleged sexual abuse by former House Speaker Dennis Hastert has come forward to federal prosecutors and may seek to testify next month when Hastert faces sentencing in federal court in Chicago. The new accuser, labeled as "Individual D" in court papers, is not the "Individual A" to whom Hastert agreed to pay $3.5 million, setting off a series of events that led to the former speaker pleading guilty to illegally structuring $900,000 used in payments to the man.
Up until now, public court records and courtroom proceedings in the case have danced around the fact that the case stems from alleged sexual impropriety, reportedly from Hastert's years as a teacher and wrestling coach. But U.S. District Court Judge Thomas Durkin gave up that pretense Tuesday and made clear that the case is linked to the widely reported allegations of sexual misconduct.
"Let's not beat around the bush. If 'Individual D' wants to come in and talk about being a victim of sexual abuse, he's entitled to do so because that informs my decision about the history and characteristics of the defendant. It's that simple," Durkin said, according to a transcript POLITICO reviewed of a brief court hearing.
Hastert entered his guilty plea last October, acknowledging that he withdrew nearly $1 million in cash in increments of less than $10,000 to avoid reporting requirements, paying the money out to a longtime associate. The indictment against Hastert doesn't name the person he was paying, referring to him only as "Individual A."
Durkin agreed Tuesday to delay Hastert's sentencing by about three weeks at the government's request so that a witness who may wish to testify at the hearing can appear. "Individual D" is "not 100 percent certain he wants to [testify] but has been moving in that direction," prosecutor Steven Block told the judge.
The government apparently did not know of "Individual D" when the indictment was filed against Hastert last May. But sources said investigators were aware of at least two living victims at that time. Since the indictment, Hastert has been mum about the sexual abuse allegations that have swirled in the press. However, Hastert defense attorney John Gallo said Tuesday that the former speaker doesn't plan to contest "Individual D"'s claims.
Durkin also said he's willing to hear at sentencing from a Montana woman, Joanne Burdge, who claims her late brother had a sexual relationship with Hastert while her brother was an equipment manager on the wrestling team Hastert coached. "If the sister of a victim of sexual abuse wants to come in and talk about her interactions with her brother and talk about that, that is something that would inform my decisions about the history and characteristics of the defendant," the judge said.
Hastert's lawyers opposed delaying the hearing and said the proposed witnesses aren't victims under federal law because the crime Hastert pled guilty to was a bank reporting violation. "They're not classic victims, and so they have no statutory entitlement to appear," Hastert attorney Thomas Green said during Tuesday's hearing. He also said their submissions should be taken in writing, not through live testimony.
But Durkin rejected that position. "If they want to come in and they're willing to testify as live witnesses, they're absolutely entitled to do so, and the government's entitled to call them as live witnesses," the judge said.
In an interview, Burdge confirmed her desire and plan to speak at the sentencing. "I'm going to it. I feel like it's crossing the finish line and I need to do it," she told POLITICO Wednesday. "I've waited over 30 years for this."
In Hastert's plea deal, the defense and prosecutors agreed that sentencing guidelines call for the former speaker to receive between zero and six months in custody. However, after his guilty plea last year, the 74-year-old Hastert suffered a stroke and sepsis. Given the health issues, it's unclear whether Durkin will sentence Hastert to any jail time at all.
Some prior related posts:
- You be the federal defense attorney: would you urge Dennis Hastert to cut a plea deal?
- Did former House Speaker Hastert get a sweetheart sentencing deal from federal prosecutors?
March 24, 2016 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (6)
Am I crazy to really like the "White Collar Crime Offender Registry" now being developed in Utah?
The question in the title of this post is prompted by this notable new Wall Street Journal article headlined "Financial Crime: a New Twist on the Sex-Offender Registry: Utah is most aggressive jurisdiction in publicly shaming financial criminals." Long-time readers likley know that I tend to be a supporter of shaming sanctions as an alternative to imprisonment in some settings, and I see financial crimes as an especially useful arena to explore alternative punishments. Here are details on how Utah is engaged in an alternative sanctions experiment:
States have taken the idea of the sex-offender registry and applied it to everything from kidnapping to animal abuse. Utah is expanding it into new territory: financial crime. An early version of the White Collar Crime Offender Registry, which has been online since February, includes more than 100 people convicted of tax, credit-card or insurance fraud; thefts from employers or friends; and bilking investors.
They include 41-year-old Kenneth Ray Wagner. “Eye Color: Blue. Hair Color: Blonde … Targets: Insurance company.” The registry displays Mr. Wagner’s mugshot and explains that he was convicted in 2008 of fraud for dismantling his motorcycle, hiding the parts in a storage locker and claiming to his insurance company that it had been stolen.
The list makes Utah the most aggressive jurisdiction in the country when it comes to publicly shaming financial criminals. No other state operates such a list. The Securities and Exchange Commission often shields the identities of offenders. The agency last month refused a public-records request by The Wall Street Journal for information on sanctions paid by specific individuals, saying that providing such information would be “a clearly unwarranted invasion of personal privacy.”
The Financial Industry Regulatory Authority does require disclosure of events like some criminal convictions, regulatory actions and customer complaints. But it only applies to securities professionals, and the disclosures are intermingled in a database that includes more routine facts like work history.
Utah lawmakers say their list, which is being administered by the state’s attorney general, will help protect investors by offering easy access to information about con artists. It could also create leverage to get felons to make their victims whole. Convicts who comply with court orders on time and pay restitution in full won’t appear on the list. “That’s the carrot,” Utah Attorney General Sean Reyes said.
The new policy plunges the state into a broader debate about using name-and-shame tactics to punish convicts who have already served their time. Registries have proliferated rapidly in the U.S., experts say. While some lists restrict access to law-enforcement agencies or fire officials, others can be viewed online by anyone, according to the National Conference of State Legislatures. In addition to the 50 states that publicly track sex offenders, five states including California require registration for arson. Minnesota, Illinois and six others maintain lists of methamphetamine producers. In Indiana, a public website lets visitors use Google Maps to find the location of homes that have been used as meth laboratories. Tennessee requires registration for animal abuse— something nine other state legislatures are debating. Florida law requires registration by anyone convicted of a felony of any kind for up to five years after completing the sentence.
Utah itself maintains a sex-offender and kidnap-offender list, as well as its new financial-crimes registry. In all, the number of Americans on such lists will soon approach a million, if it isn’t already there, said J.J. Prescott, a law professor at the University of Michigan. He warned of possible unintended consequences from applying a public alert designed for sex offenses to other crimes, such as the risk of drug-offender registries being used by addicts to find suppliers....
Utah’s white-collar registry will include anyone convicted of second-degree frauds or other financial felonies since January 2006. A total of about 230 people are expected to be on the registry when it is formally launched in a few months, officials said. The state will generally keep people registered for 10 years after a first offense. A second offense adds another decade, and people with three convictions never get off.
Mr. Wagner’s lawyer, Tara Haynes, said he already has paid a considerable price for his crime. He appeared on the list after serving 90 days in county jail and being ordered to pay more than $16,000 in restitution. “He is not a white-collar criminal,” Ms. Haynes said. "He’s a blue-collar construction worker.”
Utah lawmakers voted last year to create the registry to stem what they called a growing tide of white-collar crime in the state, particularly by con artists preying on its close-knit religious communities. Convicts need to fill out a form to register, arrange to have a photo taken and update their address and phone number if they change. All but one entry in the early version of the registry includes a photo, typically a mugshot, while some also list aliases such as “ Missy Moniker” or “Connie.”
The site has some glitches. It included one man who died of cancer last year—he was removed after The Wall Street Journal sent officials a link to his obituary—and another where the wrong offense was initially shown. Mr. Reyes said the state is still vetting the registry, including by asking offenders to check the accuracy of their entries. “We want to be fair,” he said.
Some legal experts say Utah’s approach could be an improvement on federal efforts to encourage restitution.... The SEC has yet to collect $9.4 billion of $17.7 billion of sanctions it has imposed in the last five fiscal years, according to data on its website.
The question of whether Utah’s registry violates defendants’ rights could end up in court. Clair Rulon Hawkins, a former employee of a Utah real-estate firm, was convicted in 2013 of defrauding an investor who lost $852,000 deposited on two lots of land that Mr. Hawkins helped sell. Mr. Hawkins served four months in Salt Lake County jail and a halfway house. He remains subject to a restitution order for more than $1.4 million. The 50-year-old is appealing his conviction. He also plans a legal challenge to his inclusion on the Utah registry, arguing it violates his constitutional rights to due process, privacy and economic liberty, his lawyer said.
State lawmakers and other officials hope their idea will catch on nationally. Mr. Reyes, the attorney general, said his office has been contacted by legislators in several states as well as by federal prosecutors interested in replicating the experiment. “I know we’re the first in the nation for doing it,” said Michael McKell, a Republican who sponsored the bill in the Utah House to create the white-collar registry. “I certainly don’t think we will be the last.”
March 23, 2016
Notable new comments and commitments on criminal justice reform from GOP House Speaker Paul Ryan
This notable new article about a notable new speech by Speaker of the House Paul Ryan, headlined "Paul Ryan just gave a remarkably candid speech and admitted one of his biggest policy mistakes," has significantly increased my optimism about some form of federral sentencing reform moving forward in Congress this year. Here are the details:
House Speaker Paul Ryan gave a candid speech about the "State of American Politics" on Wednesday, during which he admitted that he too hasn't always lived up to what he believes is a high-standard of political discourse.
A member of the audience asked Ryan after the speech if he had been persuaded differently on any policy position he has held and was willing to admit he was wrong.
Ryan — who earlier repeated an apology he had made in 2014 for a past statement about America's supposed "makers and takers" when discussing poverty in the country — said he had been wrong about criminal justice. "One of the things that I learned is that there are a lot of people who've been in prison that committed crimes that were not violent crimes," he said. "Once they have that mark on their record, their future is really bleak."
He said that, when he came to Congress in the late 1990s, he was a staunch supporter of tough crime laws. He admitted that both his own party and Democrats overcompensated at the time. The policies, he said, "end up ruining their lives and hurting their communities where we could've have alternative means of incarceration, instead of basically destroying someone's life. I've become a late convert."
"Criminal-justice reform is something I never thought of when I was younger," he continued. "Be tough on crime, be tough on crime." Ryan said criminal-justice reform bills would be brought to the House floor soon. He pledged to "advance this."
"I didn't necessarily know this before, but redemption is a beautiful thing. It's a great thing," he said. "Redemption is what makes this place work. We need to honor redemption. We need to make redemption something that is valued in our culture and our society and in our laws."
Ryan's candid comments on poverty and criminal-justice reform came at the end of a powerful speech about the current discourse in American politics, which he lamented would end up making Americans "distrust institutions" and "lose faith in government."
Lots of food for marijuana reform thought via Marijuana Law, Policy and Reform
The biggest news this week in the marijuana reform space was the "dog-not-barking" decision by the Supreme Court to deny the "motion for leave to file a bill of complaint" brought by Nebraska and Oklahoma against Colorado for its recreational reforms (basics here). But, as highlighted by students in my semester-long OSU Moritz College of Law seminar on marijuana laws and reform via readings assembled for in-class presentations, there are lots of other topics for marijuana reformers (and their opponents) to be concerned with these days.
Here is a round up of just some of the many interesting reform-related stories flagged recently over at Marijuana Law, Policy & Reform:
"Why Dylann Roof is a Terrorist Under Federal Law, and Why it Matters"
The title of this post is the title of this notable new article authored by Jesse Norris now available via SSRN. Here is the abstract:
After white supremacist Dylann Roof killed nine African-Americans at a Charleston, South Carolina church, authorities declined to refer to the attack as terrorism. Many objected to the government’s apparent double standards in its treatment of Muslim versus non-Muslim extremists and called on the government to treat the massacre as terrorism. Yet the government has neither charged him with a terrorist offense nor labelled the attack as terrorism.
This Article argues that although the government was unable to charge him with terrorist crimes because of the lack of applicable statutes, the Charleston Massacre still qualifies as terrorism under federal law. Roof’s attack clearly falls under the government’s prevailing definition of domestic terrorism. It also qualifies for a terrorism sentencing enhancement, or at least an upward departure from the sentencing guidelines, as well as for the terrorism aggravating factor considered by juries in deciding whether to impose the death penalty.
Labelling Roof’s attack as terrorism could have several important implications, not only in terms of sentencing, but also in terms of government accountability, the prudent allocation of counterterrorism resources, balanced media coverage, and public cooperation in preventing terrorism. For these reasons, the Article contends that the government should treat the Charleston Massacre, and similar ideologically-motivated killings, as terrorism.
The Article also makes two policy suggestions meant to facilitate a more consistent use of the term terrorism. First, the Article proposes a new federal terrorism statute mirroring hate crime statutes, which would enable every terrorist to be charged with a terrorist offense. Second, simplifying the definition of terrorism to encompass any murder or attempted murder meant to advance an ideology would avoid the obfuscation invited by current definitions. However, even without such changes, the government still has the authority and responsibility to treat attacks such as Roof’s as terrorism for nearly all purposes.
A few prior related posts:
- Should it be the state or feds (or both!?!) that capitally prosecute racist mass murderer Dylann Storm Roof?
- Thanks to death penalty, one of worst racist mass murderers gets one of best defense lawyers
- South Carolina prosecutors begin pursuit of death penalty again Charleston church mass murderer
- Attorney for Dylann Roof, Charleston church mass murderer, suggests plea to avoid death sentence
- Just why is DOJ still uncertain about seeking death penalty against Charleston mass murderer Dylann Roof?
State judge in Missouri decides state DOC purposely violated state law to avoid execution drug disclosure
As reported in this local article, headlined "Missouri Corrections Department Violated Sunshine Law In Execution Case, Judge Rules," a state judge reached some sharp conclusions about what the state DOC failed to show concerning execution drugs in the Show Me state. Here are the details:
The Missouri Department of Corrections purposely violated the state’s Sunshine Law when it refused to turn over records revealing the suppliers of lethal injection drugs for executions, a state court judge ruled late Monday. Cole County Circuit Judge Jon E. Beetem’s decision came in three parallel cases, including one brought by five news organizations: The Kansas City Star, The St. Louis Post-Dispatch, the Springfield News-Leader, The Guardian and the Associated Press.
Beetem last July ordered the DOC to disclose the names of the pharmacies from which it buys lethal injection drugs. But the issue remained moot while he reviewed the records in question to see if they needed to be redacted in order to protect the identities of members of the execution team.
On Monday, Beetem ruled that while an exemption in the Sunshine Law protects the identities of the doctor and nurse who are present during the execution as well as non-medical personnel who assist with the execution and are also present, it does not protect the identity of the pharmacists who supply the execution drugs. He ordered the DOC to produce those records without redactions. He also ordered the DOC to pay the plaintiffs’ costs and attorneys’ fees. In the news organizations' case, that amounted to $73,335.
The state has already indicated it plans to appeal. The Department of Corrections did not immediately return a call seeking comment on Beetem's decision. "At this point, it has cost the state of Missouri more than $100,000 to assert a frivolous position," said Kansas City attorney Bernard Rhodes, who represented the news organizations. "At what point will the state realize that they're wrong and at what cost to the taxpayers will it take before the state realizes they are wrong?"
The other lawsuits challenging officials' refusal to provide information about the state's execution protocols were filed by former Missouri legislator Joan Bray, a death penalty opponent, and by the Reporters Committee for Freedom of the Press, the American Civil Liberties Union and Christopher S. McDaniel, formerly of St. Louis Public Radio.
Missouri, like other states, has had difficulty finding lethal injection drugs after European and American drug makers began refusing to provide them. The state has resorted to using largely unregulated compounding pharmacies, often keeping the sources of the drugs secret. In their lawsuit, the five news organizations said that public disclosure of the source, quality and composition of the drugs “reduces the risk that improper, ineffective, or defectively prepared drugs are used; it allows public oversight of the types of drugs selected to cause death and qualifications of those manufacturing the chosen drugs; and it promotes the proper functioning of everyone involved in the execution process.”
March 22, 2016
"Looking Forward: A Comprehensive Plan for Criminal Justice Reform in Ohio"
The title of this post is the title of this notable new report produced by the ACLU of Ohio and the Ohio Justice and Policy Center. Here is the report's introduction:
Ohio has a mass incarceration crisis. There are currently 50,600 Ohioans in prisons designed to hold 38,600; that’s at least 12,000 too many of our neighbors and fellow citizens in cages. And beyond these inhumane numbers, there is a fundamental misuse of criminal-justice tools to attack social and health problems. We have responded to poverty, drug and alcohol addiction, mental illness, or an overall lack of opportunities with punishment.
Instead of treating people with mental illness, we criminalize them and block access to the care they so desperately need. We allow low-income people to be victimized by steep fines and costs, with many languishing in local jails because they cannot afford to pay a court fine or make bond. People who have a small amount of drugs are not given treatment for their addiction, but instead offered prison sentences and a felony conviction. Those who try to re-enter society have the door slammed shut by mounting collateral sanctions that prevent them from getting a job, housing, education, reliable transportation, and more.
The result is a system that is costing our state in every sense of the word. Ohio has the sixth largest prison population in the nation. In the last decade, the prison population has increased 12 percent despite the fact that the violent crime rate has reached a 30-year low. In 2014, taxpayers spent over $1.7 billion to operate the state prison system alone. Every dollar spent on prisons is a dollar not spent on crime-survivor services, schools, addiction treatment, mental healthcare and other services that enrich our communities and that keep people out of the criminal justice system in the first place. Nowhere are the negative effects of mass incarceration felt more than in communities of color. African Americans account for nearly half the state’s prison population but only a little more than a tenth of the total state population. Mass incarceration has decimated neighborhoods, leaving many communities of color with countless people unable to find employment and cycling in and out of the justice system.
State leaders have begun to recognize that mass incarceration is simply not working and must be dismantled. In 2011, a bi-partisan group of legislators, along with advocates and activists, passed House Bill 86 (HB 86). This legislation was part of the federal Justice Reinvestment Initiative that sought to reform state criminal justice systems and provide resources for strategies that depopulate prisons and jails. While HB 86 promised modest reforms, it was never fully implemented or funded, and despite a short plateau, Ohio’s prison population is growing.
The time for modest, incremental steps is over. We must challenge ourselves to imagine a fundamentally different justice system that is truly just, and not merely focused on punishment. We must usher in an era of being smart on crime, not just tough on crime, where accountability does not mean punishment for punishment’s sake. We can create forms of accountability that restore the law-breaker to being a productive member of society while also offering more robust healing and restoration to crime victims.
Currently, the Ohio General Assembly has created a Criminal Justice Recodification Committee that is tasked with rewriting our criminal laws. Once again, state leaders have invited members of that committee to use this opportunity to change our justice system. However, the problem does not begin or end simply with the contents of Ohio’s criminal code, nor does the solution reside solely with the Committee. Their work represents a meaningful opportunity to bring about substantive reform — that opportunity must not be squandered on narrow, technical edits to statutory language. Now is the chance for the legislature to precisely identify and fundamentally change the policies that drive excessive incarceration. It is with this approach that we can perhaps finally begin looking forward to a new justice system that makes our communities stronger and lifts up the people of Ohio, rather than keeping them down.
Federal district judge interprets Nebraska law to preclude placing juve on its public sex offender list
As reported in this local article, a "federal judge has blocked Nebraska from putting a 13-year-old boy who moved here from Minnesota on its public list of sex offenders." Here is more about this notable ruling:
Senior U.S. District Judge Richard G. Kopf said if the boy had done in Nebraska exactly what he did in Minnesota he would not have been required to register as a sex offender "and he would not be stigmatized as such." "It therefore makes no sense to believe that the Nebraska statutes were intended to be more punitive to juveniles adjudicated out of state as compared to juveniles adjudicated in Nebraska," the judge wrote in a 20-page order.
In Nebraska, lawmakers opted to exclude juveniles from the Nebraska Sex Offender Registration Act unless they were prosecuted criminally in adult court, even though it meant losing thousands in federal funding. But the way the law is written made it appear that all sex offenders who move to Nebraska must register.
When the Minnesota boy in this case moved here to live with relatives, the Nebraska State Patrol determined he had to register because of a subsection of the law....
In this case, the boy was 11 when he was adjudicated for criminal sexual conduct in juvenile court in Minnesota. A judge there ordered him to complete probation, counseling and community service, and his name went on a part of that state's predatory offender list that is visible only to police. Even before that, the boy had moved to Nebraska to live with relatives.
In August 2014, the Nebraska probation office notified his family he was required to register under the Nebraska Sex Offender Registry Act or could be prosecuted. That same month, the boy's family filed a federal lawsuit seeking to block the patrol from putting him on Nebraska's registry, which is public.
In Monday's order, Kopf concluded that the boy wasn't required to register in Minnesota because he was adjudicated in a juvenile court, not convicted in adult court, so Nebraska's act doesn't apply. He cited Nebraska Juvenile Code, which specifically says juvenile court adjudications are not to be deemed convictions or subject to civil penalties that normally apply. An adjudication is a juvenile court process through which a judge determines if a juvenile committed a given act.
Kopf's order said it was apparent that the purpose was to identify people guilty of sex offenses and to publish information about them for the protection of the public. "It is equally apparent that the Nebraska Legislature has made a policy determination that information regarding juvenile adjudications is not to be made public, even though this has resulted in the loss of federal funding for non-compliance with (the federal Sex Offender Registration and Notification Act)," he said.
Late Monday afternoon, Omaha attorney Joshua Weir said the boy's grandmother was so excited when he called with the news she had to pull over in a parking lot. "They were very, very relieved," he said. Weir said the boy is a healthy, happy kid now and flourishing in school. "It would've been a tragedy if he would have been branded a sex offender," he said. "That's something that sticks with you for the rest of your life."
The state could choose to appeal the decision within the next 30 days.
Unanimous Supreme Court suggests Second Amendment can preclude state felony prosecution for public weapon possession
I wanted a chance to review closely the Supreme Court's notable Second Amendment work yesterday in Caetano v. Massachusetts, No. 14-10078 (S. Ct. March 21, 2016) (available here), before blogging about what strikes me as a significant constitutional ruling. But even after doing some more review, I am still scratching my head a bit regarding both the Court's brief per curiam opinion and the lengthy and forceful concurring opinion authored by Justice Alito and joined by Justice Thomas.
Caetano strikes me as significant primarily because the Supreme Court has not ruled on the merits in a Second Amendment case since the 2010 McDonald ruling, and also because both McDonald and its landmark precursor, the 2008 Heller ruling, left so much uncertain about the reach and limits of the Second Amendment. In addition, the merits of the Caetano case seem significant because it involved (1) possession of a weapon other than a traditional firearm (a stun-gun), and (2) a state criminal conviction affirmed by a state Supreme Court based on possession of this weapon outside the home. Finally, as the title of this post suggests, it seems significant that not a single Justice dissented from the the Caetano per curiam ruling to vacate the judgment of the Supreme Judicial Court of Massachusetts based on the Second Amendment.
But Justice Alito's concurrence, which seems like it might have been initially drafted to serve as an opinion for the full Court, reasonably complained that the Court’s per curiam opinion was "grudging" because it seems open to the possibility that the defendant might still have her felony conviction for possession of a stun-gun outside her home affirmed on some other grounds. Thus, as the title of this post is meant to indicate, I think the Caetano ruling only suggests a broadened application of the Second Amendment to limit a state felony prosecution.
This Lyle Denniston post at SCOTUSblog captures these themes in its title: "The Second Amendment expands, but maybe not by much." And here is a telling excerpt from that post:
The Court set aside the state court ruling, and told that tribunal to take another look. The decision left in doubt whether the conviction in the case would stand, and whether the state could come up with other reasons to support its ban. It is possible that the state’s highest court will call for new legal briefs or a hearing on what to do about the Boston woman in the case, Jaime Caetano.
Her defense lawyer, Boston public defender Benjamin H. Keehn, said after the ruling Monday that he would seek to have her conviction vacated. Although she was found guilty of a serious crime (a felony) under the Massachusetts procedure used in her case, she was not given a jail sentence or a fine. Keehn said he was “not positive” what the Supreme Court ruling meant, and said he was studying whether there had been comparable situations in other cases returned to lower courts without specific instructions.
DOJ bragging about Smart on Crime initiative focusing on "more significant drug cases"
Yesterday the Department of Justice issued this official press release titled "New Smart on Crime Data Reveals Federal Prosecutors Are Focused on More Significant Drug Cases and Fewer Mandatory Minimums for Drug Defendants." Here is how the release gets started:
The Justice Department today revealed new data from its innovative Smart on Crime Initiative that show charging decisions by federal prosecutors in fiscal year 2015 resulted in prosecutors' focusing on more serious drug cases and fewer indictments carrying a mandatory minimum. Meanwhile, prosecutions of high-level drug defendants have risen and cooperation and plea rates remained effectively the same.
“The promise of Smart on Crime is showing impressive results,” said Deputy Attorney General Sally Q. Yates. “Federal prosecutors are consistently using their discretion to focus our federal resources on the most serious cases and to ensure that we reserve harsh mandatory minimum sentence for the most dangerous offenders. By ensuring fair and proportional sentencing, these policies engender greater trust in our criminal justice system, save federal resources and make our communities more safe. "
As part of the department’s Smart on Crime Initiative — announced in August 2013 — federal prosecutors were instructed to ensure the department’s finite resources are devoted to the most important law enforcement priorities implicating substantial federal interests and to promote fair enforcement of our laws, especially for low-level, non-violent drug offenders.
Since that announcement, prosecutions of serious drug defendants — such as those involving a weapon or leaders of a conspiracy — have increased, and there has been virtually no change in the rates at which defendants cooperate with the government or plead guilty. During the same time, the department has seen steady reductions in charges that trigger mandatory minimums and fewer federal drug charges for low-level, non-violent offenders.
Notably, this Politico article reports that not everyone may think these developments represent good news:
Some lawmakers have sounded skeptical that lowering the number of federal drug prosecutions is something the Obama administration should be celebrating. "I've heard that argument that 'we're always focusing on higher people that's why the numbers are down' for over 25 years. I do not believe that," Sen. Jeff Sessions (R-Ala.) said at a Senate Judiciary Committee hearing earlier this month. "
Sessions acknowledged that the federal prisons are saving money as a result of fewer convicts coming their way, but he questioned the wisdom of that approach as heroin use has picked up dramatically across the country. "The prison population is declining at a rapid rate. It was 5,000 down last year. The budget for the prisons is being reduced as a result of a substantial decline in population. And at the same time, the drug use is surging and death are occurring. And on my opinion, it's going to get worse," Sessions said.
However, Yates said Monday she remains hopeful that Congress will pass criminal justice reform legislation that will give federal prosecutors and judges even more discretion in drug cases. "At the risk of sounding maybe naïve and overly optimistic, I really believe we have a very good chance of getting sentencing reform because it’s one of the few things out there for which there really is bipartisan support," the deputy attorney general said. "We have people on both ends of the spectrum that actually agree that this needs to happen, so you got to hope that when you have that, that we can actually bring this over the finish line.”
March 21, 2016
Some interesting recent discussions of religion and the death penalty
Long-time readers know I have long been intrigued by (and uncertain about) the intersection of strong religious beliefs and strong opinions on the death penalty. For that reason, these recent pieces caught my eye:
From the New Yorker here, "The Catholic Movement Against Capital Punishment"
From Patheos here, "Why Authentic Christians Must Oppose the Death Penalty"
From RawStoy here, "Bible: 6 Ways Jewish Bernie Sanders Is More Like Christ, Christian Donald Trump More Like Anti-Christ"
The last of these pieces talks about a lot more than the death penalty, but I figured it might help generate some extra fun comments.
SCOTUS rejects original lawsuit brought by Nebraska and Oklahoma against Colorado over marijuana reform
Legal gurus closely following state-level marijuana reforms have been also closely following the lawsuit brought directly to the Supreme Court way back in December 2014 by Nebraska and Oklahoma complaining about how Colorado reformed its state marijuana laws. Today, via this order list, the Supreme Court finally officially denied the "motion for leave to file a bill of complaint" by Nebraska and Oklahoma against Colorado. This is huge news for state marijuana reform efforts, but not really all that surprising. (It would have been bigger news and surprising if the motion was granted.)
Notably, Justice Thomas authored an extended dissent to this denial, which was joined by Justice Alito. Here is how this dissent stats and ends:
Federal law does not, on its face, give this Court discretion to decline to decide cases within its original jurisdiction. Yet the Court has long exercised such discretion, and does so again today in denying, without explanation, Nebraska and Oklahoma’s motion for leave to file a complaint against Colorado. I would not dispose of the complaint so hastily. Because our discretionary approach to exercising our original jurisdiction is questionable, and because the plaintiff States have made a reasonable case that this dispute falls within our original and exclusive jurisdiction, I would grant the plaintiff States leave to file their complaint....
Federal law generally prohibits the manufacture, distribution, dispensing, and possession of marijuana. See Controlled Substances Act (CSA), 84 Stat. 1242, as amended, 21 U. S. C. §§812(c), Schedule I(c)(10), 841–846 (2012 ed. and Supp. II). Emphasizing the breadth of the CSA, this Court has stated that the statute establishes “a comprehensive regime to combat the international and interstate traffic in illicit drugs.” Gonzales v. Raich, 545 U.S. 1, 12 (2005). Despite the CSA’s broad prohibitions, in 2012 the State of Colorado adopted Amendment 64, which amends the State Constitution to legalize, regulate, and facilitate the recreational use of marijuana. See Colo. Const., Art. XVIII, §16. Amendment 64 exempts from Colorado’s criminal prohibitions certain uses of marijuana. §§16(3)(a), (c), (d); see Colo. Rev. Stat. §18–18–433 (2015). Amendment 64 directs the Colorado Department of Revenue to promulgate licensing procedures for marijuana establishments. Art. XVIII, §16(5)(a). And the amendment requires the Colorado General Assembly to enact an excise tax for sales of marijuana from cultivation facilities to manufacturing facilities and retail stores. §16(5)(d).
In December 2014, Nebraska and Oklahoma filed in this Court a motion seeking leave to file a complaint against Colorado. The plaintiff States — which share borders with Colorado — allege that Amendment 64 affirmatively facilitates the violation and frustration of federal drug laws. See Complaint ¶¶54–65. They claim that Amendment 64 has “increased trafficking and transportation of Coloradosourced marijuana” into their territories, requiring them to expend significant “law enforcement, judicial system, and penal system resources” to combat the increased trafficking and transportation of marijuana. Id., ¶58; Brief [for Nebraska and Oklahoma] in Support of Motion for Leave to File Complaint 11–16. The plaintiff States seek a declaratory judgment that the CSA pre-empts certain of Amendment 64’s licensing, regulation, and taxation provisions and an injunction barring their implementation. Complaint 28–29.
The complaint, on its face, presents a “controvers[y] between two or more States” that this Court alone has authority to adjudicate. 28 U. S. C. §1251(a). The plaintiff States have alleged significant harms to their sovereign interests caused by another State. Whatever the merit of the plaintiff States’ claims, we should let this complaint proceed further rather than denying leave without so much as a word of explanation.
Cross-posted at Marijuana Law, Policy & Reform.
Rounding up commentary highlighting why I am just not that into SCOTUS nomination of Chief Judge Merrick Garland
In this initial post about Prez Obama's selection of Chief DC Circuit Judge Merrick Garland as his latest and likely last SCOTUS nominee, I expressed some reasons I was initially disappointed by the selection. Since that time, I have read a little bit of the copious commentary about Chief Judge Garland and much of it suggests Judge Garland is a first-rate jurist who would make a perfectly fine Justice.
But I remain troubled that Prez Obama, after he has talked and talked and talked about the importance of criminal justice reform and of "life experience earned outside the classroom and the courtroom," decided to nominate to the Supreme Court yet another former federal prosecutor and long-time DC Circuit judge who seems to have garnered nearly all of his professional experiences inside the classroom and the courtroom. Of particular concern for me, I suppose, is that Chief Judge Garland's professional experiences have come from inside all the same classrooms and courtrooms in which all the other Justices learned.
Because I am generally assuming GOP Senate leaders will be keeping their oft-stated promise not to even hold a hearing to consider Chief Judge Garland, I do not plan to blog much about his nomination in the weeks ahead. But, having seen already a bunch of old and new commentary that captures some of my thoughts about the nomination, I thought it useful here to do a mini-round up:
From Bloomberg View here, "Obama Picked a Stellar Judge. He Could Have Done Better."
From Salon here, "Inside Merrick Garland’s troubling record: Why he could take the Supreme Court right in one very important regard; No one is saying that Merrick Garland is a conservative, but his stance on criminal justice is cause for concern"
From Vox here, "Is Merrick Garland more conservative than Antonin Scalia on criminal justice issues?"
From Grits for Breakfast here, "In praise of do-nothing Republicans on SCOTUS nominee"
The first of these linked pieces, authored by Noah Feldman, astutely comments on the symbolism of the nomination of Chief Judge Garland that has me most put off:
[E]ven if Garland is blocked, there’s a symbolic message in his nomination. That message is that diversity isn’t very important on the Supreme Court, and that what matters is a career of legal excellence from which one emerges unscathed by the taint of controversy, risk, or (God forbid) strong opinion strongly expressed.
That hasn’t always been the case. The Supreme Court was one of the first institutions in American life where it was widely agreed that diversity counted — and that included diversity of background, experience, and viewpoint. Nearly a century ago, people were already speaking of the court as having a Western seat, a Catholic seat, a Jewish seat, and a scholar’s seat — evidence for the time of a fairly broad spectrum of desirable representation.
Franklin Delano Roosevelt’s justices came from the Senate, the Securities and Exchange Commission, governorships, private practice, and the academy. They had staked out controversial, risky positions on the most important issues of the day. William O. Douglas had crusaded against the New York Stock Exchange. Hugo Black was considered the most radical Senator. Think Elizabeth Warren, not Merrick Garland.
To his credit, Obama has aimed at diversity in picking two women, one of them Latina. Their professional experiences weren’t all that varied from the other justices, but that was fine, considering their other virtues.
But was it really necessary for the president to go so far as to nominate possibly the safest candidate in the entire U.S. judiciary? I like and respect Garland, and I’m sure he’d make an excellent justice. He embodies many of the legal virtues that I try to teach. Yet the basis for his selection depends on his plain-vanilla career. It manifests the extreme care that he’s exercised in a long and distinguished professional path....
The contrast with Antonin Scalia, whom Garland would replace, is striking. Scalia, who died in February, was also a white, male, Harvard Law graduate who’d worked in the Department of Justice. But as a law professor, he’d staked out strong opinions and earned a reputation as a conservative intellectual leader.
It’s old news that Robert Bork’s confirmation process changed the rules of the game, driving presidents of both parties to stealth nominees. But it’s still worth noting that Garland’s nomination is the new high water-mark of non-controversial court appointments.
This time, a fight was inevitable. Obama could’ve used the chance for a nomination that would make the fight interesting. He didn’t. That may be a testament to his shrewd political mind, but it's still cause for reflection and regret.
March 20, 2016
High-profile NYC cop-killer getting off death row spotlights continued challenges SCOTUS jurisprudence
This new AP article, headline "NY Killer Off Death Row as Definition of Disabled Gets Tweak," reports on a notable capital ruling in a high-profile federal capital case and details how the case taps into broader issues surrounding the Supreme Court's Eighth Amendment limits on the application of the death penalty. Here are the details:
Prosecutors say Ronell Wilson is a calculating murderer. Since his imprisonment for killing two New York City police detectives, he has been able to dash off emails, memorize passages from books and seduce a female guard. But Wilson's lawyers were able to convince a judge that he is a person of such a low intelligence that he can't function in society, and therefore can't legally be put to death.
Wilson, 32, and others like him are at the center of a debate over how to enforce a nearly two-year-old U.S. Supreme Court ruling that adds more specificity to the concept that it is cruel and unusual punishment to execute killers who are intellectually disabled. It says courts should go beyond mere IQ scores to consider the person's mental or developmental disabilities. A federal judge in New York who revisited Wilson's case based on the ruling tossed out his death sentence, just three years after finding that Wilson's IQ score was high enough to make him eligible to be executed.
A similar review led a judge in California last November to reduce a death sentence given three decades ago to Donald Griffin, a man who raped and murdered his 12-year-old stepdaughter. A third appeal based on the ruling, that of a Virginia serial killer with a borderline IQ score, failed. Alfredo Prieto was executed in October.
Legal scholars say similar death row decisions are likely to follow, depending on how the high court's ruling is applied around the country. "We should see courts more carefully considering whether defendants have an intellectual disability ... that doesn't mean we will," said Robert Dunham, the executive director of the nonprofit Death Penalty Information Center.
Wilson is a case study in the difficulty of determining who fits the court's definition of someone too intellectually limited to qualify for capital punishment.... U.S. District Court Judge Nicholas Garaufis said in his ruling Tuesday that he had no sympathy for Wilson and also doubted most clinicians would consider him disabled. But he said he had "significant deficits in adaptive functioning" - enough to make him ineligible for the death penalty. Garaufis imposed a new punishment of life in prison.
"Black Kids Less Likely To Use Hard Drugs Than Whites, Still Go To Jail More"
The title of this post is the headline of this recent posting at Medical Daily providing a summary this new research paper titled "Health Disparities in Drug-and Alcohol-Use Disorders: A 12-Year Longitudinal Study of Youths After Detention" published in the American Journal of Public Health. Here are excerpts from the summary:
The United States is plagued with many forms of substance abuse, and youth leaving juvenile detention are especially vulnerable. Many think African Americans in this group are especially prone to drug use, but a new study says this stereotype is unfounded. According to researchers at Northwestern, abuse of and dependence on cocaine, hallucinogens, amphetamines, and opioids is less common among African Americans than among non-Hispanic whites.
The thorough study is the first of its kind. Researchers followed the youths into their late 20s, for up to 12 years after release. At that point, non-Hispanic whites had 30 times the odds of becoming addicted to cocaine as African Americans did. “Those findings are striking, considering the widely accepted stereotype of African Americans as the most prevalent abusers of ‘hard drugs,’” said Linda A. Teplin, senior author of the study and professor of Psychiatry and Behavioral Sciences at Northwestern University Feinberg School of Medicine, in a press release.
Though whites were more likely to abuse or depend on hard drugs, their incarceration numbers didn’t follow the same pattern. According to an estimate by the U.S. Department of Justice, among males born in 2001, one in three African Americans and one in six Hispanics will be incarcerated at some point in their lives, compared with just one in 17 Caucasians. “We must address — as a health disparity — the disproportionate incarceration of African Americans,” Teplin said.
In terms of differences between the sexes, the study found that 91.3 percent of previously delinquent male youths and 78.5 percent of females had had a substance abuse disorder by their late 20s. However, males were more likely to abuse alcohol and marijuana, and females were more likely to exhibit opiate, cocaine, amphetamine, and sedative addiction.
South Dakota bans all juve LWOP sentences
As reported in this local article, as of last week "South Dakota has banned the practice of sentencing children to life in prison without the possibility of parole." Here is more about this notable legislative development:
Gov. Dennis Daugaard signed SB 140 sponsored by Sen. Craig Tieszen, into law on Wednesday. In making this change, South Dakota joins states such as Wyoming, Nevada and West Virginia in implementing less punitive accountability measures for children.
“Every year I try to bring at least one bill that I truly believe in while knowing it will be a struggle,” said Sen. Tieszen. “I believe that children, even children who commit terrible crimes, can and do change. And, I believe they deserve a chance to demonstrate that change and become productive citizens. In the end, I gathered a very diverse set of legislators from across the political spectrum and passed the bill with solid margins.”
SB 140 eliminates all life sentences for people who were younger than 18 at the time of their crimes. Fifteen states now ban life-without-parole sentences for children.
“South Dakota is helping to lead important change in the ways that we hold our children accountable,” said Jody Kent Lavy, director and national coordinator at the Campaign for the Fair Sentencing of Youth. “Teenagers who commit serious crimes will now have an opportunity after several years to demonstrate that they have been rehabilitated and are ready to re-enter society. Jurisprudence and adolescent development research document that appropriate sentences consider children’s age at the time of a crime, the trauma they have experienced and their capacity for change.”
Making an empirical case for the relative efficacy of post-Plata realignment in California
A trio of criminologists make a data-driven case for some positive aspects of California's experiences with realignment in this Washington Post opinion piece headlined "Releasing low-level offenders did not unleash a crime wave in California." Here are excerpts (with a link to the report that provides the empirical basis for its claims):
Some fear that reducing sentences for nonviolent crimes and letting low-level offenders back on the streets — key components of prison reform — could produce a new and devastating crime wave. Such dire predictions were common in 2011 when California embarked on a massive experiment in prison downsizing. But five years later, California’s experience offers powerful evidence that no such crime wave is likely to occur.
In 2011, the Supreme Court ruled that California’s wildly overcrowded prisons were tantamount to cruel and unusual punishment and ordered the state to reduce its prison population by some 33,000 people in two years. In response, the state enacted the controversial California Public Safety Realignment law, known in legislative shorthand as AB 109.
With a budget of more than $1 billion annually, “realignment” gave each of the state’s 58 counties responsibility for supervising a sizable class of offenders — the “triple nons,” or non-serious, nonviolent, non-sex offenders — formerly housed in state prisons. Each county received unprecedented flexibility and authority to manage this population as it saw fit.
Recently, we brought together a group of distinguished social scientists to do a systematic, comprehensive assessment of California’s prison downsizing experiment. The results, published this month in the Annals of the American Academy of Political and Social Science, show that California’s decision to cede authority over low-level offenders to its counties has been, for the most part, remarkably effective public policy and an extraordinarily rich case study in governance....
To answer questions about the relationship between prison reform and crime rates, we not only compared statewide crime rates before and after the downsizing but also examined what happened in counties that favored innovative approaches vs. those that emphasized old-fashioned enforcement.
Clearly, our most important finding is that realignment has had only a very small effect on crime in California. Violent crime rates in the state have barely budged. We’ve seen no appreciable uptick in assaults, rapes and murders that can be connected to the prisoners who were released under realignment. This makes a lot of sense when you think about it; by and large, these offenders were eligible for release because of the nonviolent nature of their crimes.
On the other hand, a small uptick in property crime can be attributed to downsizing, with the largest increase occurring for auto theft. So is this an argument against realignment and against prison reform more broadly? We think not. The cost to society of a slight increase in property crime must be weighed against the cost of incarceration.
Take the example of auto theft. Our data suggest that one year served in prison instead of at large as a result of realignment prevents 1.2 auto thefts per year and saves $11,783 in crime-related costs plus harm to the victims and their families. On the other hand, keeping someone behind bars for a year costs California $51,889. In purely monetary terms — without considering, say, the substantial economic and social hardship that imprisonment can create for prisoners’ children and other relatives — incarcerating someone for a year in the hope of preventing an auto theft is like spending $450 to repair a $100 vacuum cleaner.
Turning to the question of which counties’ strategies were most successful, we have another important early finding: Counties that invested in offender reentry in the aftermath of realignment had better performance in terms of recidivism than counties that focused resources on enforcement. As other states and the federal government contemplate their own proposals for prison downsizing, they should take a close look at what these California counties are doing right.
I have long been saying that California is a critical state to watch in the sentencing reform discussion, and I am pleased to see that a "group of distinguished social scientists" have so far concluded that the state's realignment experiences in the wake of the Supreme Court's Plata "has been, for the most part, remarkably effective public policy." But, critically, thanks to voter initiatives, California's recent sentencing reform efforts have not been confined to realignment: in 2012, California voters passed reforms to the state's three strikes laws via Prop 36, and in 2014 California voters passed reforms to what crimes are treated as felonies via Prop 47. And, notably, though some in law enforcement were quick to complain after AB 109 that realignment was responsible for a uptick in property crimes in the state, of late the focus of crime concerns and criticism has been Prop 47.
As I have repeatedly said in this space and others, I think it is especially problematic that California does not have the help of a independent sentencing commission that could and should seek to track and assess all these moving sentencing reform parts in the state. In the absence of such a body, we all will have to rely on empirical and advocacy work done by outside researchers and policy groups concerning the effects of sentencing reform on the west coast.