Sentencing Law and Policy

Are quirky supervised release conditions getting out of hand?

A little unpublished per curiam opinion from the Eighth Circuit today in US v. Lacey, No. 07-2436 (8th Cir. July 8, 2009) (available here), prompts the question in the title of this post.   In Lacey, the defendant  "pleaded guilty to possession of child pornography ... and the district court sentenced him within the unobjected-to Guidelines range to 115 months in prison and 15 years of supervised release."  As the brief opinion reveals, this sentence included a "special supervised-release condition banning [Lacey] from gambling or entering any casino upon being released." 

The opinion does not explain how or why this quirky condition was added to the defendant's term of supervised release.  The Laceyopinion merely states that though "this condition may have been overbroad or unrelated to Lacey’s circumstances, we find its imposition did not amount to plain error requiring reversal."  Also, the opinion adds this cite: "United States v. Silvious, 512 F.3d 364, 371 (7th Cir. 2008) (recognizing as overbroad and arbitrary certain special conditions of supervised release, including ban on gambling where there was no evidence that defendant had gambling problem, but finding no plain error because there was no showing that conditions affected defendant’s substantial rights, and conditions were readily modifiable at defendant’s request)."

The Lacey case leads me to these (and other) questions:

• Does anyone know how or why a quirky anti-gambling condition is now being added to some supervised release terms? 
• Does this condition mean the defendant in Lacey cannot even participate in a neighborhood poker game (or an NCAA pool or a fantasy baseball league) for 15 years after he is released? 
• Are there other similar quirky supervised release conditions showing up in more cases these days? 

This inquiring blogger not only wants to know about this case, but also whether quirky supervised release conditions present a federal sentencing issue worthy of greater attention and concern.

Second Circuit blesses future medical expense restitution in child porn sentencing

The Second Circuit has an intriguing little restitution ruling today in US v. Pearson, No. 07-0142 (2d Cir. July 2, 2009) (availalbe here).  Here is how the opinion starts:

Defendant-appellant Abraham Pearson appeals from a judgment entered January 12, 2007, in the United States District Court for the Northern District of New York (McAvoy, J.) convicting him, following a guilty plea to multiple counts of producing, transporting, receiving, and possessing child pornography, and sentencing him, inter alia, to serve fifteen years’ imprisonment and to pay restitution to the child victims of his crime in the amount of $974,902.  Because we conclude that the defendant has not waived his right to appeal the restitution amount, we are called upon to consider whether a restitution order pursuant to 18 U.S.C. § 2259 may include an amount for estimated future medical expenses, and, if so, whether the amount of restitution ordered, which included an estimate of the victims’ future medical expenses, is reasonable.  We hold that a restitution order pursuant to 18 U.S.C. § 2259 may provide for estimated future medical expenses, but we find that the district court has not explained adequately its calculation of the restitution amount.  Therefore, we vacate that portion of the judgment and remand for further sentencing proceedings limited to that issue.

Notably, the estimated future medical expenses at issue in this case concerned the need for lifetime counseling due to the the victims’ mental health issues resulting from their underage involvement in sexual activity induced by the defendant.

New York Times complains (foolishly?) about creative writing sentence

I am intrigued and a bit troubled to see that the New York Times has this new editorial that appears to be complaining about the recent sentencing decision ordering a white-collar defendant to write a book (discussed here).  Here is most of the editorial:

We have not read the little monograph that James H. Lake, a Washington lobbyist at the time, wrote in the late-1990s.... In 1998, Mr. Lake pleaded guilty to making illegal campaign contributions.  The judge in the case, Ricardo M. Urbina of the United States District Court for the District of Columbia, ordered Mr. Lake to set down in writing his description of the criminal code that covered his crime.

Soon there will be another title in what might be called the Urbina canon.  Last week, he sentenced Dr. Andrew G. Bodnar — a former pharmaceutical executive who pleaded guilty to making a false statement to the federal government about the efforts of the company that he worked for to resolve a patent dispute — to write a book about his case as a warning to other executives.

We do see the possibility of justice in this sentence — if Dr. Bodnar hates to write.  But it feels like an invitation to insincerity.  In fact, it feels a little like asking an adolescent boy to explain, in front of his friends, why telling a lie is bad, bad, bad.

Many people in professional life believe they have a book in them.  Whether it ever gets out is usually a matter of passion, persistence and chance, not court decree.  We don’t know if there is any deterrent value in Judge Urbina’s approach (beyond deterring us from reading the product).

Given the vanity in publication, it might be better if he ordered white-collar defendants not to write books about what they did.  Now that would sting.

Though this editorial is not a robust rebuke of Judge Urbina's creative sentencing approach, it is another example of the tendency of the media and others to react too negatively to forms of punishment other than imprisonment.  The NY Times likely would not have even noticed had Dr. Bodnar been given a year in prison, and this editorial never confronts the important reality that most everyone would prefer that a parent order a boy to explain why lying is bad rather than lock that boy in a closet for days or weeks.

"Judge Orders Former Bristol-Myers Executive to Write Book"

The title of this post is the headline of this New York Times article discussing a creative sentencing term imposed by a federal judge on a white-collar offender.  Here are a few of the details:

On Monday, Judge Ricardo M. Urbina of the United States District Court for the District of Columbia, sentenced a former senior pharmaceutical executive to write a book. Earlier this year the executive, Dr. Andrew G. Bodnar, a former senior vice president at Bristol-Myers Squibb, had pleaded guilty to making a false statement to the federal government about the company’s efforts to resolve a patent dispute over the blood thinner Plavix.

The judge sentenced Dr. Bodnar to two years of probation during which he is to write a book about his experience connected to the case. Dr. Bodnar must also pay a $5,000 fine. Elkan Abramowitz, Dr. Bodnar’s lawyer, said he had never before heard of a case in which a judge sentenced a defendant to write a book.

But this is not the first time Judge Urbina has demanded written penance. In 1998, he sentenced a prominent Washington lobbyist to write and distribute a monograph to 2,000 lobbyists at the defendant’s own expense. The lobbyist, James H. Lake, pleaded guilty to making illegal corporate campaign contributions. Judge Urbina ordered him to pay a $150,000 fine and to write a monograph describing the criminal provisions of federal laws governing corporate campaign contributions.

In the sentencing hearing on Monday, Judge Urbina said he would like to see Dr. Bodnar write a book about the Plavix case as a cautionary tale to other executives. The case concerned accusations that Bristol-Myers had made false statements to federal investigators about the company’s attempt to resolve a patent dispute with a Canadian maker of generic drugs, Apotex.

The WSJ Law Blog has this useful follow-up post on the sentence, which is titled "Go Directly to . . . Authorship? More on Judge Urbina’s Odd Sentence" and includes an interesting Q&A with Dan Markel.

Notable Tenth Circuit ruling on restitution awards under the MVRA

The Tenth Circuit has a significant ruling today concerning restitution awards in US v. Dolan, No. 08-2104 (10th Cir. May 27, 2009) (available here).  Here is the start of the opinion:

Brian Dolan viciously attacked a hitchhiker, leaving his victim by the side of the road bleeding, unconscious, with a great many broken bones.  Eventually, officers found the hitchhiker and rushed him to a hospital.  He survived, but his medical expenses topped $100,000. When it came time to sentence Mr. Dolan for his assault, the district court ordered him not only to serve 21 months in prison but to pay $250 monthly in restitution.  Before us, Mr. Dolan doesn’t challenge his prison sentence but does say his victim should get nothing. He contends that the district court’s restitution order is void because it was entered too late, after a statutory deadline passed. Even if the district court had the power to enter an untimely restitution award, Mr. Dolan argues, $250 per month is more than he can afford.

We reject both arguments. The district court’s restitution order was undoubtedly late, coming after the deadline prescribed by the Mandatory Victims Restitution Act.  But a tardy restitution order is not an invalid one. Rather than creating a jurisdictional bar to untimely restitution orders, the MVRA’s deadline seeks to prod the government into ensuring victims swift compensation. Sometimes, of course, the government is not so easily prodded. When that happens — when the MVRA’s deadline passes without a restitution order entered — the affected victim may well have cause to complain, and may even seek a mandamus order compelling action.  But the defendant does not get off the hook. Neither can we say that the district court abused its discretion in pegging Mr. Dolan’s monthly restitution payments at $250, given the record before us.

Michael Vick now a free man... sort of

The latest news on the latest former federal prisoner can be found here at the top of the CNN's news feed:

Former Atlanta Falcons quarterback Michael Vick left a federal prison in Leavenworth, Kansas, early Wednesday, according to his publicist and the Federal Bureau of Prisons. He will serve the last two months of his 23-month sentence in home confinement in Virginia, his publicist Judy Smith said. He is a native of Newport News, Virginia....

He will return to professional football as soon as September if reinstated by the NFL, according to the sports agent who negotiated Vick's 10-year, $140 million contract with the Falcons. Meanwhile, Vick's attorneys have said he will work at a Newport News construction firm following his release, and he has also agreed to participate in a documentary for $600,000....

Vick plans to work with the Humane Society of the United States on anti-dogfighting campaigns, Humane Society President Wayne Pacelle told CNN on Tuesday. Vick will work on programs aimed at preventing youths from getting involved in dogfighting, and also on programs to assist young people who have already been involved in the blood sport.

Pacelle said the Humane Society was approached by Vick's representatives. He said he has traveled to Kansas twice to meet with the former quarterback, and during the second visit, the two discussed how Vick could use his sway over youths to discourage them from involvement in dogfighting, as well as help those who were apprehended in connection with it.

Some related recent posts:

• Are there broader lessons to be drawn from Michael Vick's up-coming prisoner reentry story?

• NFL update: More on Vick's release ... while wondering about Plaxico's fate

Should we force offenders to pay for the costs of their punishments?

This local article, headlined "N.J. lawmakers want inmates to pay jail, monitoring costs," prompts the question in this title of this post.  Here are some excerpts:

Some New Jersey lawmakers want convicted criminals to pay for their confinement or electronic monitoring. Two bills would pass the costs of state jails onto inmates and the expense of electronic monitoring devices onto sex offenders required to wear them.

A plan from State Sen. James Beach (D., Camden) would charge state prisoners for the cost of their incarceration, an average of $38,700 per year.  Beach said he had gotten the idea from within his district, where the Camden County Correctional Facility assesses a user fee of $5 per day for room and board and $10 per day for use of the infirmary.  The fees generate about $300,000 a year.

"There's a misperception that everyone in jail is poor, and that's just not true," Beach said. "Why should we as taxpayers foot the bill for someone that did something wrong and end up in jail?" With the cost of incarceration approaching $40,000 per year, Beach said, "I think we should be able to do pretty good."

A bill sponsored by State Sen. Joseph Pennacchio (R., Morris) and Senate Majority Leader Stephen Sweeney (D., Gloucester) would require those convicted sex offenders who must wear electronic monitoring devices to pay the costs of that equipment, or about $2,900 per year.  "It can be quite an expense for the state, an expense that, in my view, the state shouldn't have to deal with," Pennacchio said at a hearing on the measure.

About 209 sex offenders in New Jersey must be monitored.  They are generally those considered the highest threat to safety who can still be released from confinement.  Pennsylvania charges all people who require electronic monitoring, including sex offenders, for the cost, said Leo Dunn, a spokesman for the state's parole board.

At least eight other states make sex offenders pay for monitoring devices, according to the National Conference of State Legislatures.  There is also long-running movement among some county jails to charge inmates.  Pennsylvania does not do it statewide, but several counties do.

"It is popping up across the country," said Rick Neimiller, director of administration and communications for the American Jail Association. "Especially now they're looking at it, with the economy."

Critics, however, said charging inmates would put a burden on both the prisoners and their families, who are often poor.  "It discourages people trying to put their lives back together," said Elizabeth Alexander, director of the American Civil Liberties Union's National Prison Project. People heading to prison often owe fines, restitution, and child support, and have little income while incarcerated, said Ed Martone, director of public education and policy for the New Jersey Association on Correction.

"Car breath tests for 1st-time DUI offenders?"

The title of this post is the headline of this article from my local Columbus Dispatch.  As a few excerpt show, this short piece appeals to my affinity for technocorrections, for data-driven sentencing reforms, for alternatives to incarceration and for getting tougher on drunk driving:

Some Ohio lawmakers and Mothers Against Drunk Driving want the state to require anyone convicted of a drunken-driving offense to blow into an alcohol tester before his or her car can start -- the first step, opponents say, in requiring all drivers to submit to such a test.

MADD's national president, Laura Dean-Mooney, testified at the Ohio Statehouse yesterday in favor of a bill that would require ignition-interlock devices for first-time DUI offenders.

She said the 10 states that have such laws have had significant decreases in the number of drunken-driving accidents and deaths.  DUI-related accidents have decreased 35 percent in New Mexico since that state required ignition interlocks in 2005, she said.

"Despite the fact that this life-saving technology exists, it's not used very often," Dean-Mooney told the Ohio House's Criminal Justice Committee. "Ignition interlocks would reduce recidivism and save some of the 13,000 lives that are lost in drunk-driving accidents every year."

Last year, 466 people died in Ohio in DUI-related accidents, according to the State Highway Patrol.  About 9,000 others were injured.... Ohio law prescribes an ignition interlock for second-time offenders for whom judges restrict driving privileges.

In my view, unless and until there is empirical evidence indicating that ignition interlocks are ineffective, the answer to the question in the title of this post should be an emphatic YES.  Even If Ohio might only get half the accident decrease in New Mexico, the data still suggests we could save perhaps as many as 100 lives and thousands of injuries from simply requiring those convicted of drunk driving to prove they are not repeating their offense when they again get behind the wheel.  Unless one cares a lot more about some value other than innocent lives, I do not quite understand the basis for serious opposition to this proposal.

Of course, there was opposition expressed at the Ohio Statehouse yesterday, but those voicing the opposition is tellingly a group, the American Beverage Institute, that sees a loss of potential profits from this potentially life-saving bill:

A total of 27 states require repeat DUI offenders or first-timers with extremely high blood-alcohol concentrations to blow into the testers before their engines can start, said Sarah Longwell, managing director of the American Beverage Institute.

The trade group of alcohol-serving restaurants opposes efforts to require ignition interlocks for first-time offenders. "This bill mandates that people one sip away from 0.0799 receive a punishment normally reserved for high-(blood-alcohol-content), repeat offenders," Longwell told the House committee. "While both have committed a crime, they are very different types of criminals."

Some related posts on sentencing drunk drivers:

• Shouldn't we be much, much tougher with drunk drivers?
• Tougher (but still not tough enough?) on DUI
• Getting tougher on drunk driving
• Why do we worry so much more about sex offenders than drunk drivers?
• Technology versus toughness to combat drunk driving
• Undue leniency for drunk drivers?
• More discussion of leniency for drunk drivers
• Is capital punishment for drunk driving morally required?
• More examples of undue leniency shown to repeat drunk drivers
• Another drunk driving sentencing story we can follow on the sports pages
• NFL receiver charged with DUI manslaughter in Florida, while MLB pitcher gets wrist slapped in Nebraska

My kind of drunk driving sentence ... in Norway

I was intrigued and pleased to see this press report, headlined "Big fine follows short drive," discussing a noteworthy drunk driving sentence handed down recently in Norway:

A Norwegian businessman was ordered on Tuesday to pay a fine of 700,000 kroner for driving 400m while drunk, a court said.  Due to the man's wealth, the court in the southern Norwegian county of Aust-Agder handed down a heavier-than-usual sentence, which would normally be equivalent to a month-and-a-half's gross salary for the accused.

"The principle of proportionality implies that we should take into account the entire wealth of the person in cases where the defendant is more well off than most other people," a copy of the verdict obtained by AFP read.

The 49-year-old man is the heir of a rich shipping family.... The man was also ordered to take part in an alcohol rehabilitation programme — failing which he will have to serve 18 days in jail — and he had his driver's licence suspended for two years and three months.

The man was arrested in October 2008 after he was found to have more than nine times the permitted blood-alcohol level an hour after he was stopped by police. The man told the court that he had only driven 300 to 400m, and that, aware of his condition, he was going to meet friends to ask them to take him home.

As regular readers know, I am a fan of alternatives to incarceration and also a fan of tougher sentences for drunk drivers (primarily in the hope of achieving a measure of general deterrence for what seems like a deterable crime).  Thus, making a rich very guy pay over $100,000 even for a short drunk drive sounds about right (I think I the kroner/US dollar exchange rate is about 7:1).  Moreover, not only has this sentence made international news, it also has netted Norway's government a nice chunk of change that it can use on rehabilitation programming or other crime prevention measures.

"Ice cream man awaits sentencing"

The title of this post is the headline of this local articlethat I thought might provide the basis for a little friday tomfoolery.  Here are the basics:

An ice cream truck driver that admitted to exposing himself in front of a toddler in Sugar Grove is expected to be sentenced later this month. Douglas R. Jones, 48, of Aurora, has pleaded guilty to sexual exploitation of a child, a class four felony.

He faces between one and three years in prison, or could receive probation. He is expected to be sentenced May 21 by Circuit Judge Robert Spence, according to prosecutors.

Jones was arrested in June 2007 after police say a 3-year-old saw Jones exposing himself inside his ice cream truck.

At the time, Jones also was a substitute teacher in the Aurora East school district but was not allowed to continue his role following the arrest, according to district officials. Jones also had been elected to the Kane County Regional School Board.

I will get the silliness started by wondering if the new neighborhood chant is "You scream, I scream, we all scream, for the ice cream man to be lock up."  Or, maybe we should talk about possible alternative sentences: e.g., perhaps the defendant here should be ordered to keep a popsicle in his shorts for the duration of his sentencing term.

Another notable lean-times report on the prison economy

The Salt Lake Tribune has this interesting piece, headlined "Probation and parole officers stretched thinner: Corrections struggles to track offenders in tight budget times," providing another on-the-ground prespective of the criminal justice impact of lean economic times. Here are excerpts from the story:

[W]ith probationers and parolees now comprising one of every 136 people in the Salt Lake Valley, monthly checks are growing to be nearly impossible.  Officers are coping by downgrading more high-risk offenders and ending supervision earlier for others.

Recent Department of Corrections budget cuts have included a six percent job reduction and the closure of an offender diagnostic center that recommended sentences to help judges.  They have also thinned the number of courses offered at Adult Probation and Parole offices, such as anger management and parenting....

Some probationers and parolees pay $180 per month for ankle-monitoring devices and officers to track them.  But the bill is a tough sell for people with criminal records already struggling to find or keep jobs . And officers usually have to check on unemployed offenders more often since, Luke said, "free time can turn to drugs and deviant thoughts."

Banishment a popular (but uneven?) special punishment in Georgia

As detailed in this effective local article, headlined "More than 500 people have been banished from Houston County," one Georgia county makes banishment a (semi)regular punishment for certain offenders.  Here are the particulars:

More than 500 people have been banished in Houston County since 1998 when the District Attorney’s Office started tracking this sentencing option.  Still, that’s about one out of every 60 cases, comparing the 500 banishments to more than 30,000 cases for the same time frame, said Houston County District Attorney Kelly Burke....

Keeping a person out of the county where the crime was committed during the probationary period may actually help the offender, Burke said.  For example, banishment disrupts the network of a drug abuser or dealer, breaking the cycles of addiction and the criminal activity of buying and selling, Burke said.  “I believe banishment really works,” Burke said. “It provides a chance to get your life straight while on probation.”

In the case of domestic violence, often the victim doesn’t want the abuser to go to jail but to simply be left alone, Burke said.  Banishment gives the victim peace of mind that they can safely go to a restaurant or to a child’s soccer game without the offender showing up and claiming they didn’t know the victim was at the restaurant or the game — a common scenario that plays out in restraining orders, Burke said....

Jim Rockefeller, a criminal defense attorney in Warner Robins, said banishment can be a useful tool with someone who is involved in some sort of network of gang activity or drug dealers. However, wholesale use of banishment would result in simply shuffling people around the state, he said.  Also, if wrongly used, banishment can set up a person for failure by cutting them off from positive networks such as families and jobs, Rockefeller said.

Rockefeller said he believes it would be appropriate for the state General Assembly to develop uniform guidelines on the use of banishment. Another option that judges might consider would be requiring banishment consideration to be part of arguments during sentencing hearings, rather than part of negotiated pleas among prosecutors and defense attorneys, Rockefeller said.

In neighboring Bibb County, banishment is rare. “We have done it a few times since I’ve been in office but not a whole lot,” Bibb County District Attorney Howard Simms said.  “Some of our judges don’t like it.” Simms said he also has problems himself with the enforceability of banishment and other issues it creates, such as with child custody.

Superior Court Judge S. Phillip Brown said there are some practical considerations of why banishment wouldn’t work on a broad-based approach or as a routine matter.  What about doctor’s appointments, for example?, Brown said.  His concern is that banishment may set up an offender for failure when the justice system should encourage success.

With 500 cases of banishment over a fairly long period in a single Georgia country, we should be able to move past anecdote and be able to collect some empirical evidence about whether banishment is an effective sentencing provision for certain classes of offenders.  I fear that no serious banishment studies are underway, but this would be a valuable and important opportunity from criminology or sociology grad students looking to make a real impact with some ground-level research.

A reality TV twist on federal supervised release

Thanks to How Appealing, I saw this local article headlined "Hatch asks if he can serve end of sentence in Argentina."  Though political junkies might first think of Senator Hatch, TV junkies know that this article is about the first winner of Survivor, Richard Hatch.  Here are some of the amusing particulars:

If Survivor star Richard Hatch can’t be a free man, he wants to be free to serve his time on supervised release in Buenos Aires, Argentina, and travel wherever he pleases to make guest appearances on the popular CBS reality show.

Hatch filed a motion in U.S. District Court this week asking for travel freedom and to live in Argentina during his term under supervision because he is married to an Argentine national whose family is unable to travel to the United States.

He has asked the court to let him visit Argentina and pursue income opportunities abroad, should it deny his request to live in Argentina. He repeats his contention that he was wrongfully convicted of tax evasion.

"6-year-old sentenced to traffic school"

The title of this post is the title of this local article I found via a link from CNN. Here are the notable particulars:

Even though mom got the ticket a Los Lunas magistrate judge isn't letting her child off the hook for refusing to buckle up. The child's mother, who was ticketed for failing to restrain her child, asked Judge John "Buddy" Sanchez if he could help discipline her 6-year-old.

The boy always took his seat belt off despite her pleas, the mother said. "He took off his seat belt, I pulled over again and put it on and he took it off right in front of the cop," said Jessica who did not want to release her full name.

In January Jessica was stopped and ticketed. She landed in front of Judge Sanchez last month and asked him to talk to her son. "She didn't want to plead guilty to it because it was her son that was actually not obeying her," Sanchez said.

He agreed that it was Jessica's son who needed to learn a lesson so he ordered ther to take her young son to traffic school. "But there was nothing because of his age," said Jessica.

That's when the judge reached out to a Los Lunas driver's education instructor Avilio Chavez. "I thought he was kidding," Chavez said. "He wanted to send him to defensive-driving class or driver-improvement class."

After some discussion Chavez and Sanchez agreed on a simpler solution to teach the young lawbreaker a lesson. "Full seat-belt school," Sanchez said. Jessica agreed to take her son to a seat-belt safety class, which is expected to start in a month. They'll attend together and also learn other traffic safety measures.

States looking to capture fees through criminal justice systems

The New York Times has this interesting piece on real-world economics in some state courts.  The piece is headlined, "Pinched Courts Push to Collect Fees and Fines," and here is how it starts:

Valerie Gainous paid her debt to society, but almost went to jail because of a debt to Florida’s courts. In 1996, she was convicted of writing bad checks; she paid restitution, performed community service and thought she was finished with the criminal justice system. This year, however, she received a letter from Collections Court telling her that she was once again facing jail time — this time for failing to pay $240 in leftover court fees and fines, which she says she cannot afford.

Ms. Gainous has been caught up in the state’s exceptionally aggressive system to collect the court fines and fees that keep its judiciary system working. Judges themselves dun residents who have fallen behind in their payments, but unlike other creditors, they can throw debtors in jail — and they do, by the thousands.

As Florida’s budget has tightened with the economic crisis, efforts to step up the collections process have intensified, and court clerks say the pressure is on them to bring in every dollar. “I would say there is an even more dramatic focus on those funds now,” said Beth Allman, the spokeswoman for the Florida Association of Court Clerks.

Other states are intrigued by Florida’s success, and several, including Georgia and Michigan, have also cracked down on people who owe fines.  John Dew, the executive director of the Florida Clerks of Court Operations Corporation, said that when he attended national conferences about fees collection, states were “really looking to what we’re doing in Florida.”

Should we ban all repeat drunk drivers from ever driving again?

My local paper had this story about the sentencing of another repeat drunk driver guilty of killing another innocent victim.  These stories are all too common and fuel my general eagerness to get extra tough on repeat drunk drivers.  But a notable extra facet of the sentence is what prompted me to blog about this particular case:

A Columbus man was sentenced yesterday to four years in prison for a hit-and-run crash that killed a bicycle rider in 2007.  Spencer Andrews, 26, of Maxwelton Court, also is banned from driving for life, Franklin County Judge Richard S. Sheward ruled....

His attorney, Robert Krapenc, said Andrews regrets not stopping on the dark roadway after hitting Sonney. Andrews has sought counseling about the crash, Krapenc said, but was advised not to contact the Sonney family before sentencing.  "He knows he is going to spend time in prison and he's said he knows he deserves it," Krapenc told the judge.

Traci Sonney told the judge that her son wanted to be a teacher and planned to study art at the Columbus College of Art & Design.  "With his passion for life and the creativity he had, he would have been a powerful, powerful motivator," Mrs. Sonney said. "You left my son mowed down. You're never going to know what you did to my family."

She said Andrews didn't learn from his drunken-driving conviction three years ago. And she asked Sheward to send a message to other hit-and-run drivers.  But she left the courtroom in despair after she heard the sentence.  "It's not enough," she said, crying outside.

Though others can comment on whether a four-year prison sentence was enough for the defendant here, I found especially interesting that this relatively young defendant is now "banned from driving for life."  I do not think I can recall hearing of another sentence that included a lifetime driving ban, but it strikes me as a fairly sensible sentencing provision for some (perhaps all) repeat drunk drivers.

Of course, it may be hard to effectively enforce a lifetime driving ban on all repeat drunk drivers.  But it is also hard to enforce lifetime gun possession bans on all felons and to enforce broad living restrictions on all sex offenders, and yet we still continue with such restrictions because of the threats we believe are posed by felons with guns and sex offenders.  As this story reminds us, because we have good reason to worry about the threats of posed by drunk drivers to innocent lives, the challenges of enforcing lifetime driving bans on repeat drunk drivers should not alone dissuade us from considering this approach to keep the roads safe. 

"Rethinking Drug Courts: Restorative Justice as a Response to Racial Injustice"

The title of this post os the title of a new forthcoming article in the Stanford Law & Policy Review from Michael O'Hear. The piece is up at SSRN at this link, and here is the abstract:

Specialized drug treatment courts have become a popular alternative to more punitive approaches to the "war on drugs," with nearly 2,000 such courts now established across the United States. One source of their appeal is the belief that they will ameliorate the dramatic racial disparities in the nation's prison population -- disparities that result in large measure from the long sentences handed out for some drug crimes in conventional criminal courts. However, experience has shown that drug courts are not a "do-no-harm" innovation.  Drug courts can produce both winners and losers when compared to conventional court processing, and there are good reasons to suspect that black defendants are considerably less likely to benefit from the implementation of a drug court than white defendants. 

As a result, drug courts may actually exacerbate, rather than ameliorate, racial disparities in the incarceration rate for drug crimes.  Thus, the concerns of inner-city minority communities with the war on drugs may be better addressed through a different sort of innovation: a specialized restorative justice program for drug offenders.  Although treatment may be part of such a program, the real centerpiece is the "community conferencing" process, which involves mediated dialogue and collective problem-solving involving drug offenders and community representatives.  Where the drug treatment court gives a dominant role to criminal justice and therapeutic professionals, the community conferencing approach empowers lay community representatives, and is thereby capable of addressing some of the social capital deficits that plague inner-city minority communities with high crime and incarceration rates.

"Shaming and scaring johns into becoming average joes"

The title of this post is the headline of this interesting article in today's Los Angeles Times.  The sub-title of this article describes the basics: "L.A. tests a program for men caught soliciting prostitutes, giving them some reasons not to reoffend. It's like traffic school, but the stakes are higher and the presentations are squirm-inducing."  Here are snippets from the story:

This is john school, a new effort by law enforcement officials to stem prostitution in Los Angeles. Built on the belief that a heavy dose of in-your-face shame and scare tactics can do more to dissuade men from looking to the streets for gratification than traditional punishment, the class -- think traffic school with higher stakes -- offers first-time offenders leniency in exchange for a promise that they will change their ways. It is the latest example of how prosecutors and police around the country are rethinking their strategies in the age-old battle against prostitution.

"I've arrested hundreds of street walkers and busted countless tricks," said Margolis, who spent nearly three decades working in the Los Angeles Police Department's vice squad. "All those years, we'd send them to court, they'd pay a fine, spend maybe a day or two in jail and then be on their way.

"We're never going to arrest our way out of this problem and we're never going to stop it altogether. But we can try to educate johns about the dangers to themselves and about the violence the women face. Hopefully we can reduce the demand."

Launched recently by the Los Angeles city attorney's office, the Prostitution Diversion Program currently targets only those johns nabbed by the LAPD along a cheerless stretch of Figueroa Boulevard pockmarked by liquor stores and cheap motels -- one of the city's epicenters for street-walking prostitutes. There are tentative plans to expand the class citywide if the pilot program proves successful, said Sonja Dawson, the no-nonsense city prosecutor who helped start the program.

If this approach works effectively for those who seek illegal sex, perhaps someone smart will consider  expanding the program to also bring in those who seek illegal drugs and  illegal rock-and-roll.

Capturing the essence of the USSC's report on prison alternatives

As noted here, last week the US Sentencing Commission issued a new report providing an in-depth analysis of alternative sentences for federal offenders. The essence of that report is effectively discussed in this recent article by Marcia Coyle in The National Law Journal, which is headlined "New Report Shows Sharp Rise in Prison Time for Federal Offenders."  Here are excerpts from the article: 

The rate at which federal offenders are being sentenced to prison time has increased by 10 percentage points in the past 10 years — from 75.4 percent to 85.3 percent since fiscal year 1997 — while the use of alternative sentences, such as probation and probation with confinement, has decreased over the same period.

White, older citizens convicted of fraud, larceny or other white-collar crimes have a higher likelihood than other offenders of getting an alternative sentence, but they still are sentenced primarily to prison time, according to a new report by the U.S. Sentencing Commission....

The decline in the use of alternative sentences, according to the commission report, is largely due to noncitizen offenders who must be confined while awaiting deportation. In fiscal year 2007, more than one-third (37.4 percent) of offenders were noncitizens, the overwhelming majority of whom were illegal aliens. "The citizen/noncitizen issue is no small issue in terms of sentencing outcome," said Ryan King of the Sentencing Project. "If the offender is here illegally, the court is not going to release him."

Should we consider military service as an alternative to incarceration?

The Fall 2008 issue of the Justice Policy Journal includes this interesting article titled simply "Alternatives to Incarceration."  However, as this abstract reveals, the piece is focused on one particularly interesting alternative:

While previous research has sought to evaluate prisoners’ perceptions of various alternatives to imprisonment, most have centered on the prisoners perspective as to the perceived severity of the alternative punishment.  This research is quite different, as the proposed alternative does not seek to punish but rather to rehabilitate.  The proposed alternative argues that military enlistment be utilized as an alternative to incarceration we intend to determine if prisoners would welcome such an alternative.  Researchers have identified a correlation between military service and desistance from crime among youths, many of whom have had delinquent pasts.  This current project is intended to expand upon the life course perspective as the military can act as a “rehabilitative agent” which will act as a hook for change, thereby facilitating desistance from criminal behavior.

In the current study, we argue that military service can facilitate social bonds, promote prosocial network contacts, and teach skills necessary for successful integration into the dominant society.  Because of the benefits military service offers, it is hypothesized that prisoners will be receptive to such an alternative to incarceration.  Through our interviews with prisoners at a minimum security facility in Kentucky, we discovered that indeed prisoners overwhelmingly would welcome such an alternative.

UPDATE:  A terrific former student sent me this e-mail noting that there is historical precedent for military service as an alternative punishment:

One of the ways of avoiding a sentence of death during the middle ages was to accept a pardon from the King for service in the army for a year.  “The terms were readily accepted, and the King increased his force by a number of men who would perhaps be inferior to none in courage, though they might not improve the discipline of the army.”  Stanley Grupp, Some Historical Aspects of the Pardon in England, 7 Am. J.L. Hist. 51, 55 (1963).