Sentencing Law and Policy

T-shirt approach to shaming sanctions

Thanks to this post at TalkLeft, I see that renown Arizona sheriff Joe Arpaio has a new shaming punishment in the works.  This AP story provides the details:

Female inmates in Maricopa County have been on chain gangs since 1996.  Now, 15 of them will be wearing T-shirts that say, "I was a drug addict," as they remove trash from a Phoenix street today.

The Maricopa County Sheriff's Office said the move is designed to discourage young people from using drugs.  Sheriff's spokesman Capt. Paul Chagolla said nearly half the women on the chain gang were addicted to crystal meth.

Sheriff Joe Arpaio said the women have sad stories about what drugs have done to their lives and that they want to help others make better choices than they did.

Registration fever: it starts with sex, then meth, then guns, then ...?

As regular readers know, though registration requirements are now universal and federally required for sex offenders, some local jurisdictions are using or thinking about requiring other kinds of offenders to register their whereabouts.  As detailed in posts here and here, a couple of years ago meth offense registries were the hot idea.  Now, as detailed in this local article from Maryland, it appears that a gun offense registry is becoming the talk of the towns:

Four months after it took effect, Baltimore’s new gun offender registry is starting to yield results — including its first criminal charge.

As of Tuesday, 47 people have registered under the new city law — the first of its kind in Maryland — which is modeled after many states’ sex offender registries.  Late Thursday prosecutors filed their first criminal charge, when a Baltimore man’s Salisbury address didn’t check out.

“Extra attention on gun offenders is what we were looking for, and I think there’s reason to believe it’s going to have some effect,” said Sterling Clifford, spokesman for Mayor Sheila Dixon and the Police Department.... Margaret Burns, spokeswoman for the Baltimore City State’s Attorney’s Office, said prosecutors are “energized” to be working with police to crack down on gun offenders.

Burns said there are currently 76 people who have been convicted of gun crimes who will have to register upon release. Clifford said the office of the Gun Offender Registry is located next door to an office full of parole and probation officers, who work closely with the gun task force....

Dixon signed the Gun Offender Registry Act into law Sept. 20 of last year, and it took effect Jan. 1. The city ordinance requires gun offenders to register with the Police Department immediately upon release from imprisonment and every six months afterward for three years.

A gun offender who violates the act, which applies to every gun conviction in Baltimore, faces up to a year in prison or a $1,000 fine. Each day the violation continues constitutes a separate violation, prosecutors said.

House hearing on restitution reform

Folks like me who take a liking to crime victim compensation and non-imprisonment punishments may want to check out this afternoon's House hearing before the Subcommittee on Crime, Terrorism, and Homeland Security on "Legislative Proposals before the 110th Congress to Amend Federal Restitution Laws."  As detailed at this official website (where there is a webcast link), this all-star cast will be testifying starting at 2pm today:

• Senator Byron L. Dorgan
• Professor Jonathan Turley
• Andrew Weissmann, Esq.
• David B. Smith, Esq.
• Professor Paul G. Cassell

You make the call: what is a just and effective sentence for Sister Barbara Markey?

Since most judges likely have no experience sentencing nuns, I hope readers will use the comments to help out the Nebraska judge who will soon have to sentence Sister Barbara Markey.  Here is the AP story providing the background:

A Roman Catholic nun accused of stealing from the Omaha Archdiocese and gambling much of the money away has pleaded guilty to theft.  An attorney says Sister Barbara Markey pleaded Monday to theft of more than $1,500.  Defense attorney J. William Gallup says she also agreed to pay $125,000 in restitution.

Markey faces up to 20 years in prison when she is sentenced in July.

Markey is an internationally known speaker.  She was fired in 2006 as director of the archdiocese's family life office after an audit found irregularities. The audit found that Markey spent $307,545 for her own use or without documentation.  Prosecutors say Markey used the money to cover gambling forays, gifts and trips.

Regular readers will not be surprised to hear that I do not think a long prison term makes much sense for Sister Barbara Markey.  But I am still thinking about what would make sense.  Suggestions, dear readers?

Florida showcases felon franchise challenges

Writing in today's Wall Street Journal, Gary Fields has this strong piece headlined "Felons' Voting Requests Pile Up: Florida's Process To Restore Suffrage Illustrates Haze." Here are excerpts:

Republican Gov. Charlie Crist went against his party a year ago and made it easier for felons to regain their voting rights. The process has been slow, however -- stirring controversy in a state expected to be closely fought in this fall's elections.  Florida's clemency board has restored voting rights to nearly 75,000 residents.  But nearly 96,000 requests are pending, according to information through March 20.  Activists say there might be an additional 400,000 people who have been rejected without explanation, making it impossible for them to be reinstated.

The fate of these votes is especially sensitive in Florida, where George W. Bush claimed the presidency by a mere 537 votes in 2000.  But similar tensions are playing out across the country, with 5.3 million U.S. citizens unable to vote because of felony convictions -- including four million people who are no longer in prison, according to the Brennan Center for Justice at the New York University School of Law....

Restoring the rights of all five million felons who can't vote is complicated by this patchwork system, said University of Florida political scientist Richard Scher, who noted, "There is no uniformity."...

In Florida, churches are hosting rights-restoration sessions. The Florida Rights Restoration Coalition, a group of 40 organizations, is planning a daylong rally for April 1 in Tallahassee. The state's clemency board is trying to reach out to as many people as possible to tell them of the changes....

The change in Florida was controversial from the start. Mr. Crist's initial proposal was opposed by two Republicans who were members of the executive clemency board, Attorney General Bill McCollum and Secretary of Agriculture Charles Bronson.  Mr. Crist revamped the idea, limiting the scope to nonviolent offenders, and Mr. Bronson signed on.  To qualify, those felons must have completed their prison term, probation and parole, if applicable, and made any payments the court orders, including child support....

Roger Clegg, president and general counsel of the Center for Equal Opportunity, a conservative legal advocacy group, said the old system could have been improved, but the new system goes too far.  Each case should be reviewed, he said. "To assume someone has turned over a new leaf because they've walked out of prison doesn't make sense."

¡Hasta luego, amigos ... unless you learn English!

This creative sentencing story from CNN, headlined "Judge: Learn English or go to jail," is sure to generate some creative sentencing debates among all my favorite commentors on a Friday.  Here are the basics: 

A judge known for creative sentencing has ordered three Spanish-speaking men to learn English or go to jail. The men, who faced prison for criminal conspiracy to commit robbery, can remain on parole if they learn to read and write English, earn their GEDs and get full-time jobs, Luzerne County Judge Peter Paul Olszewski Jr. said.

The men, Luis Reyes, Ricardo Dominguez and Rafael Guzman-Mateo, plus a fourth defendant, Kelvin Reyes-Rosario, all needed translators when they pleaded guilty Tuesday. "Do you think we are going to supply you with a translator all of your life?" the judge asked them.

The four, ranging in age from 17 to 22, were in a group that police said accosted two men on a street in May.  The two said they were asked if they had marijuana, told to empty their pockets, struck on the head, threatened with a gun and told to stay off the block.

Attorneys for the men said they were studying the legality of the ruling and had not decided whether to appeal. One of the attorneys, Ferris Webby, suggested that the ruling was good for his client, Guzman-Mateo. "My client is happy," Webby said. "I think it's going to help him."

The judge sentenced the four men to jail terms of four to 24 months. But he gave the three men, who already had served at least four months, immediate parole.... Olszewski ordered the three to return with their parole officers in a year and take an English test. "If they don't pass, they're going in for the 24 [months]," he said.

Olszewski is known for outside-the-box sentencing.  He has ordered young defendants who are school dropouts to finish school. He often orders defendants to get full-time employment. But he also has his staff coordinate with an employment agency to help them find the jobs.

As a brilliant colleague pointed out to me this morning, the headline to this story used by CNN is just another example of what I now call the "wedge-issue media" turning a positive story into an inflamatory one.  It seems to me that the CNN headline turns what is really a valuable and creative alternative sentence here, which is focused on education and rehabilitation, into a hot-button story that will generate attention for all the wrong reasons.  Then again, the headline did get my attention and led to this post, so maybe I am also part the "wedge-issue media" I have recently come to deplore.  Hmmm. 

Sentencing justice through collateral consequences?

I encourage readers to comment on whether they feel as though justice has now been (better?) served in light of this AP story:

Former top White House aide I. Lewis "Scooter" Libby was banned Thursday from practicing law in the nation's capital following his perjury conviction in the case of a CIA operative's leaked identity.  The disbarment order of the U.S. Court of Appeals for the District of Columbia had been expected.

"When a member of the bar is convicted of an offense involving moral turpitude, disbarment is mandatory," the appeals court ruled. Last May, a court panel that oversees lawyer ethics recommended that Libby be stripped of his law license in Washington. The Board on Professional Responsibility then found that Libby's conviction for lying to the FBI about the case of former CIA operative Valerie Plame amounted to "crimes that involve moral turpitude."

"This action is required by the rules following a conviction regardless of the merits of the case, and for that reason Mr. Libby expected and did not oppose the court's order," said Libby attorney William Jeffress.

Perhaps federal defendants should consider taking the name "64,695 pounds of skark fins" . . .

. . . because, as detailed in a case handed down today, US v Approximately 64,695 Pounds of Shark Fins, No. No. 05-56274 (9th Cir. Mar. 17, 2008) (available here), over 32 tons of shark fins managed to prevail with a due process claim in a civil forfeiture case in the Ninth Circuit.  I wonder what David St. Hubbins might think about this ruling.

Shaming a child and the wisdom(?) of parental punishment

As detailed in this local Florida story, headlined "Teen Forced To Carry 'I Am Stupid' Sign After Speeding Ticket," a mother recently made headlines by imposing a shaming punishment on her reckless son.  Here are the basic details:

Adam Clark was pulled over going 107 mph in a 55-mph zone; neither the police nor his mother were pleased.  Adam's mother, Heidi Wisniewski, not only took his car away, but also made him a sign to show outside of his school every morning and every afternoon.

He was forced to hold a sign reading, "I was stupid. I drove over 100 mph and got caught. Thank God!  I could have killed me and my friends."  Adam said he got some strange looks and laughs from classmates at Orlando's Merritt Island High School, but said he accepts his punishment. Despite the humiliation, he said he isn't mad at his mother....

Wisniewski said her son would be in front of the school before and after school for a month, and added that she didn't think the punishment is over the line.  "I love my son very much," she said.  "I think more parents need to be tougher on their children."...

Adam said the punishment worked. "I've learned my lesson," Adam said.

As a fan of shaming punishments, I am quite pleased to hear about a mother willing to impose a (quite effective) type of punishment that the criminal justice system is often unwilling to impose.

Of course, I know that many (like Dan Markel) are adamantly opposed to shaming punishments.  I wonder if Dan or others consider the mother in this story to be unfit because she imposed a severe shaming punishment.  Or do those who oppose state-sponsored shaming punishments believe that parents can justifiably use these punishment even though the state should not?  If this is the view of anti-shaming advocates, are they fundamentally asserting that the state should never consider taking on a parental-type role in the operation of a criminal justice system?

Cross-posted at PrawfsBlawg

An economically astute(?) forfeiture approach to sex offenders

As this article spotlights, legislators in Kentucky are talking about an new way to punish sex offenders:

Two state representatives from Northern Kentucky want the property of sex offenders confiscated so that those who use the Internet to lure their victims lose their computers for starters. The bill, filed last month by Reps. Arnold Simpson, D-Covington, and Thomas Kerr, R-Taylor Mill, would “require the forfeiture of all real and personal property used in or acquired as a result of certain sexual offenses against minors.”

If passed, the measure would allow for the seizure of property used by convicted sex offenders, including their cars, money, computers, money, homes — any personal belongings they may have used during the sex crime against a minor....

Too often, Simpson said, the tendency in Frankfort is to enhance criminal penalties in ways that result in longer sentences. The problem with longer sentences, he said, is that they increase correctional expenses for the state and counties. “I feel the bill would be still another tool to attempt to combat crimes against our children and would have little or no budget impact,” said Simpson.

The proposed sex offender law would work much like those already on the books for taking the property of convicted drug dealers. “If they use an asset in a crime they run the risk of forfeiting their property,” Kerr said. Under the bill, officials would also be able to take the sex offender’s home, or other property, if that is where the sex crime took place.

“HB 210 may be unconstitutional in that the state cannot deprive a person of property without affording a prompt opportunity to reclaim it if it is unlawfully seized,” said Daniel T. Goyette, chief public defender for Louisville Metro Public Defender's Office. “The Constitution requires a remedy for all injuries done to property ‘without sale, denial or delay.’”...

Under the bill, property would be seized by law enforcement, held and then sold. The funds would go to police and prosecutors, minus any liens on the property, such as car loans. “This will help prosecutors by giving them additional funds to prosecute the offenders,” said Kerr. Kenton County Commonwealth’s Attorney Rob Sanders, who, according to Simpson, requested the bill, said that under the bill 15 percent of the money that comes from sex offenders’ confiscated property would be earmarked for prosecutors, who could use the funds for expert witnesses, forensic investigations and the like. Law enforcement agencies investigating such crimes would collect about 85 percent of the money brought in from sex offenders’ seized assets.

“It’s a great benefit to law enforcement and to the protection of children,” said Sanders. Goyette said the bill invites problems. “What people do not seem to understand about this is that if the government can seize a sex offender's property with impunity, there is nothing to prevent seizure of other property,” said Goyette.  “The government does not start exercising such power by seizing the property of citizens who have influence and positions of prominence in the community—they start with people everyone despises anyway.... I question whether this bill is even necessary, except to create a fund for prosecutors without imposing a tax for it,” Goyette said.

This article provides another great example of how prison costs are changing how states are thinking about crime and punishment.  It also spotlights why legislatures, because of the high cost of prisons, are always going to consider seriously ways to punish through deprivations of property rather than through deprivations of liberty.

I wonder if all the folks generally concerned about private property rights and the Supreme Court's Takings jurisprudence will speak out concerning this interesting Kentucky forfeiture proposal.  As regular readers know, I am generally a big fan of alternatives to imprisonment, and it seems that this Kentucky bill imagines forfeiture as a possible alternative (rather than an addition) to lengthening prison terms for certain offenders.  Consequently, I hope this bill gets some traction and that more jurisdictions start considering property deprivations (as opposed to liberty deprivations) as a way to get tougher on sex offenders (and all sorts of other offenders, too).

Some related posts:

• Sex offender laws as a "hot topic" for states in 2008
• A sober (and caffeinated) look at GPS tracking realities
• Is GPS tracking a better way?
• More on the pros and cons of GPS tracking
• New article examining incapacitation innovations
• Another brave new world innovation for dealing with sex offenders
• Tech folks concerned about NJ law banning sex offenders from internet
• Reacting to sentencing on the front page: It's the economy, stupid?!?!

Homeward bound, I'm glad juves are

With apologies to riffing from a great song from one of my all-time favorites, this piece from today's New York Times gives sentencing folks a reason to hum a happy tune.  The article is headlined "A Home Remedy for Juvenile Offenders," and here are highlights:

[A] new alternative sentencing program, which the city started in February 2007 ... called the Juvenile Justice Initiative, sends medium-risk offenders back to their families and provides intensive therapy.  The city says that in just a year, it has seen significant success for the juveniles enrolled, as well as cost savings from the reduced use of residential treatment centers....

The city said that in the year since the program began, fewer than 35 percent of the 275 youths who have been through it have been rearrested or violated probation.   State studies found that more than 80 percent of male juvenile offenders who had served time in correctional facilities were rearrested within three years of their release, usually on more serious charges....

Some states and other counties in New York, including Westchester, have been experimenting for years with intensive in-home and in-community therapy for children who have significant criminal records but are not psychopathic.  The basic idea is to reach and help borderline youths at a moment of crisis, and turn them away from a more serious criminal path. By treating them in the context of their families and environments rather than in isolation, officials found that recidivism was usually less than half that of residential correction programs. The city says that it hopes its program will be as successful, but that it will take many years before it can be sure.

Still, at roughly $17,000 per child, such in-home therapy programs cost a fraction of the annual expense of keeping a child in secure detention, which can be $140,000 to $200,000. In fact, the financial incentive is such that both the city and state are rapidly moving away from residential detention.

Arizona Supeme Court extends jury trial rights to misdemeanors leading to sex offender registration

In a very interesting opinion that covers a lot of very interesting modern criminal justice issues, the Arizona Supreme Court yesterday in Fushek v. State, No. CV-07-0251-PR (Ariz. Feb. 15, 2008), unanimously held that the Arizona state constitution requires a jury trial for misdemeanor charges that could lead to sex offender registration.  Here is the opinion's key conclusion:

[W]e conclude that the potential of sex offender registration reflects a legislative determination that Fushek has been charged with serious crimes.  As the Supreme Court noted in Blanton, “[t]he judiciary should not substitute its judgment as to seriousness for that of a legislature, which is far better equipped to perform the task.” 489 U.S. at 541-42....  We defer to the legislature’s determination that misdemeanor crimes involving sexual motivation are serious offenses and hold that when a special allegation of sexual motivation exposes a defendant to the possibility of sex offender registration, Article 2, Section 24 of our Constitution entitles the defendant to a trial by jury.

Download fushek_opinion.pdf

Sentencing, a love story

Who says sentencings cannot be romantic?  As highlighted by this local story, headlined "First the Wedding, Then Years in Prison," at least one lucky couple was able to arrange for both a sentencing and a wedding to fall on Valentine's Day:

A bittersweet story of love and the law developed Thursday when Cupid made a St. Valentine’s Day visit to an Ohio County courtroom. Circuit Judge James Mazzone officiated at the wedding of Misty Johnson and Kevin Felder just moments after Mazzone sentenced Felder to five to 18 years in prison for robbery.

Asked to comment on the unfortunate circumstances surround the marriage, Felder said, “It is a decision between the two of us. I am sorry for what I did, and I want to be a better man when I come home.” After saying goodbye to her new husband as he was escorted from the courtroom, the bride tearfully offered her assessment of the situation. “I love him that much,” she said. “That’s all I can say.”

Felder, dressed in an orange jail jumpsuit rather than a tuxedo, asked Mazzone if he could have his handcuffs removed during the wedding ceremony.  The judge declined. “I’m sorry, but I can’t allow that,” Mazzone said. “You are in custody.” Felder was escorted out of the courtroom moments after the couple exchanged wedding vows.

During the criminal hearing, Felder pleaded guilty to one count of second-degree robbery. Assistant Ohio County Prosecutor Steven Vogrin said Felder robbed the Wheeling Island Convenient store on Sept. 5.... During the sentencing phase of the hearing, Vogrin said Felder committed the robbery while he was on probation for a July 20 domestic violence offense involving Johnson, his then-girlfriend.  Vogrin said as part of the plea agreement, the state would not seek recidivist status against Felder, who has two previous felony convictions and could have been facing life in prison.

Is there no pressing non-sentencing business in South Dakota?

This local AP story has me wondering if the South Dakota legislature has solved all of the state's other pressing problems:

South Dakota House is scheduled to consider a measure Monday to eliminate an archaic judicial doctrine that wipes away criminal convictions if defendants die before they are sentenced. 

Representative Rich Engels of Hartford says many states already have abandoned the nearly century-old doctrine.  HB1271, offered by Engels, would add South Dakota to the list.  He says the doctrine developed in common law out of the view that a criminal conviction is not complete until an appeal has been completed or the time to appeal has passed. Engels says approval of HB1271 would allow crime victims to continue their quest for restitution.  Under the existing doctrine, restitution cannot be obtained if a criminal conviction is erased when someone dies before they are sentenced.

I understand the concern for victim restitution, but wouldn't a reform of tort law, rather than a a reform a sentencing law be a more appropriate way to address this concern?

Why tight budget times will speed path to technocorrections

I am so sorry that Mike at the CS blog is calling it quits, because a local story from my local statehouse highlights why he is so right in emphasizing that tight state budgets will increase affinity for technocorrections.  This local Ohio statehouse news story (which may require a subscription) is headlined "Senators Told GPS Electronic Monitoring Of Offenders Could Save State $148 Million."  Here are excerpts:

Housing inmates in prison costs $69 per day.  Tracking some of them electronically would cost $18 per day and, a Senate panel was told this week, could save the state at least $148 million. 

For the third time this session, the Senate Judiciary Criminal Justice Committee was briefed on an electronic monitoring system that tracks travel of individuals who may be subject to restraining orders or on parole. Chairman Timothy Grendell (R-Chesterland) took a test drive with one of the Global Positioning Satellite bracelets from I-Secure Trac of Ohio.  Results were presented to the panel in the form of a computer map display of the state that reflected his travel.

"I had the benefit of wearing this device for several days this week," Sen. Grendell said.  He drove to church, to the bakery he owns, to downtown Cleveland, and eventually to the Statehouse.  He was fitted with a device about the size of an iPod that continually tracked him via satellite at 20-second intervals.  He discovered it also measured the speed at which his car was moving. "I was driving down here on I-71 when I was notified I was speeding.  It's amazing technology," Sen. Grendell said....

Chairman Grendell views use of electronic monitoring technology not only for stalkers, sex offenders and other law enforcement applications, but also as a potential way to relieve crowding in prisons.  He met this week with Director Terry Collins of the Department of Rehabilitation and Correction, and a member of Gov. Ted Strickland's staff. "The administration is open to different solutions including the broader use of these technologies," said Keith Dailey, the governor's press secretary.

Some related posts on the costs and benefits of GPS tracking:

• Is the future parole with GPS and other techno-reentry devices?
• Every step you take, every move you make...
• Is GPS tracking a better way?
• More on the pros and cons of GPS tracking
• The devil's in the details of GPS tracking of sex offenders
• Are we willing to pay the costs of (effective?) technocorrections like GPS tracking?
• California commission considering costs of sex offender laws
• A practical challenge to GPS monitoring
• More reasons to expect a GPS-world of corrections

Fascinating Eighth Circuit case on restitution

A somewhat amusing set of facts leads to an Eighth Circuit opinion today addressing a very interesting set of legal issues in US v. Chalupnik, No. 07-1355P (8th Cir. Feb. 1, 2008) (available here). Here is how the opinion starts:

BMG Columbia House (“BMG”) sells CDs and DVDs by mail. Many BMG discs prove to be undeliverable. During the time in question, BMG arranged with the United States Postal Service (“USPS”) to gather and discard undeliverable discs, as it was less costly for BMG to produce replacement discs than to pay for the return and restocking of undeliverable discs. James Chalupnik, a janitorial supervisor at the downtown post office in Fargo, North Dakota, took several thousand undeliverable CDs and DVDs from the post office trash and sold them to used record stores. Initially charged with felony mail theft, Chalupnik pleaded guilty to misdemeanor copyright infringement in violation of 17 U.S.C. § 506(a) and 18 U.S.C. § 2319(b)(3). The district court sentenced Chalupnik to two years probation and ordered him to pay -2- BMG restitution in an amount equal to his documented sales proceeds, $78,818. Chalupnik appeals the restitution award. We conclude that the government failed to prove the amount of loss to BMG proximately caused by Chalupnik’s offense. Accordingly, we vacate the restitution award and remand for resentencing.

Are victims' rights at sentencing a distinctively Muslim concern?

Regular readers know that I find fascinating the connections between religion and sentencing, and thus I read with great interest a new article from renown federal judge Jack Weinstein in the Touro Law Review, titled "Does Religion Have a Role in Criminal Sentencing?". There are many interesting facets of this article (which I cannot find free on-line), but these passages really caught my attention:

The effect of religion on sentencing in the United States has been subtle, discreet, and indirect.... Religiously-based attitudes do influence the criminal law in our diverse society.  There is a constant struggle in our country to balance secularism and sectarianism.... 

This year I have three female law clerks. One is orthodox Jewish, one is Christian and one is Muslim.  I put to them the question: Can you briefly describe the effect of the Old Testament, the New Testament, and the Koran, respectively, on your view of sentencing?....

My Muslim clerk noted: Sentencing under Islamic law provides a greater role to the victim than mere exhortation.  For example, the sentence of death typically imposed for murder may be commuted if the victim's family agrees to accept a payment of money (known in Arabic as "diyah") in lieu of the murderer's life. This structure is typical of Islamic punishment: a strict sentence is imposed, which victims alone have the power to soften.

I agree with the underlying premise, which is that the most legitimate and enduring source of leniency is forgiveness by those who have been wronged. Like judges in the United States' system, victims are guided in their sentencing role by certain legislative principles set out in the Qur'an, which urge understanding and forbearance.  For example, the Qur'an states that the recompense of an evil deed is the like thereof, but whoever forgives and amends shall have his reward from God...

Interestingly, the Muslim approach represents the newest change in American sentencing. Under recent amendments to federal law, victims have a right to be heard during sentencing and restitution for economic losses must be provided. In death penalty cases the families of victims testify on the issue of capital punishment.

Before reading this article, I did not connect of the American victims' rights movement with Islamic theology.  Nevertheless, given that Judeo-Christian punishment philosophies tend to emphasize retribution (in the Old Testament) and redemption/rehabilitation (in the New Testament), concentrated concerns for crime victims' rights  may have a distinctively Muslin resonance. 

Who would of thought that Professor Paul Cassell left the federal bench (details here and here) to pursue legal interests that find distinct expression in the Qur'an?

A chilling alternative sentence

A kind reader sent me this news story discussing a notable altnerative sentence from a court known for creative sentencing.  Here are the highlights:

Nathen Smith sagged in a chair in the Lake County Sheriff's Office lobby, his jacket zipped tight and hands jammed in pockets to fight off his shivering. Seven hours into a 24-hour stint as one of the homeless, Smith was already tired, cold and a little hungry. But he had braced himself for a night of making this chair his home. "It's not that bad," he said. "But I'd hate to have to do this every day, especially in this weather.  It's too cold to do it in this."

Smith, 28, of Painesville is the latest to receive a creative sentence that Painesville Municipal Court Judge Michael Cicconetti has made his trademark.  As punishment for stealing one of the Salvation Army's iconic collection kettles shortly before Christmas, Smith was given the choice of the standard sentence of 90 days in jail or spending the next 24 hours as a homeless man.

When Smith chose the latter option, Cicconetti made him empty his pockets and turn over all his money and credit cards.  Court officers strapped a Global Positioning System device to his ankle to monitor his whereabouts.  And he was sent out onto the streets of Painesville with no advice or guidance. "He was like everyone else who finds themselves out on the street," Cicconetti said. "I didn't want him to have any money on him.  I want him to learn. It's not going to hurt to be a little cold."

Weather forecasts predicted 10-degree temperatures with wind chill as low as minus 5.  He was banned from going home or staying with friends.  The GPS system tracked his movements and a printout will be given to the judge when he returns at 11am to serve just three days in jail and learn what community service he must do.

"Lohan to Work in Morgue As Punishment"

From the truth-is-stranger-than-fiction department comes this AP story carrying the same headline as this post.  Here are more specifics:

Lindsay Lohan is about to see dead people. The 21-year-old actress will soon be working at a morgue as part of her punishment for misdemeanor drunken driving, her attorney, Blair Berk, told a judge Thursday.

She has also spent two months in rehabilitation and has done some community service, Berk said at a hearing on her progress toward fulfilling the terms of her plea bargain.  Her two four-hour days at the morgue are part of a court-ordered program to show drivers the real-life consequences of drinking and driving.  She must also spend two days working in a hospital emergency room.

After a long week, I cannot think of a good joke to go with this story.  Perhaps readers with more energy can lighten the morbid mood in the comments.

"Want to avoid Mr. Right Out of Jail?"

This little news story is the early front-runner for sentencing headline of the year. The full headline is, "Want to avoid Mr. Right Out of Jail?: California says background checks should be made simpler for daters," are here are the basics of the story:

Here's a new twist to the dating game — instant background checks. Asked out? Not so fast. Before saying yes or no, you could do a push-button check of domestic violence records under a new bill under consideration by California lawmakers.  The measure is believed to be the first of its kind.

"Obviously, knowledge is power," said Assemblywoman Fiona Ma, D-San Francisco. "If you encounter someone who you think is a little bit creepy, you would have the ability to check."

Ma's proposal would require the state attorney general to create a searchable Web site to identify people convicted of one felony or two misdemeanor domestic violence crimes.  The goal is to provide a resource similar to the state's existing Megan's Law Web site, which identifies sex offenders.

UK getting serious about GPS through microchip implants

I have long thought that the idea (and success?) of GPS offender tracking would lead to proposals for microchip implants.  Indeed, in this post last May, I asked "Are microchip implants for offenders inevitable?"  Consequently, I am not surprised to see this news from the UK:

Amid concerns about the security of existing tagging systems and prison overcrowding, the Ministry of Justice is investigating the use of satellite and radio-wave technology to monitor criminals.  But, instead of being contained in bracelets worn around the ankle, the tiny chips would be surgically inserted under the skin of offenders in the community....  The tags, labelled "spychips" by privacy campaigners, are already used around the world to keep track of dogs, cats, cattle and airport luggage, but there is no record of the technology being used to monitor offenders in the community....

The move is in line with a proposal from Ken Jones, the president of the Association of Chief Police Officers, that electronic chips should be surgically implanted into convicted paedophiles and sex offenders in order to track them more easily.  Global Positioning System (GPS) technology is seen as the favoured method of monitoring such offenders to prevent them going near "forbidden" zones such as primary schools....

The Government has been forced to review sentencing policy amid serious overcrowding in the nation's jails, after the prison population soared from 60,000 in 1997 to 80,000 today.... 

More than 17,000 individuals, including criminals and suspects released on bail, are subject to electronic monitoring at any one time, under curfews requiring them to stay at home up to 12 hours a day. But official figures reveal that almost 2,000 offenders a year escape monitoring by tampering with ankle tags or tearing them off....

Harry Fletcher, assistant general secretary of the National Association of Probation Officers, said the proposal would not make his members' lives easier and would degrade their clients.... "This is the sort of daft idea that comes up from the department every now and then, but tagging people in the same way we tag our pets cannot be the way ahead."

Though many may recoil from the Brave New World feel of any proposed microchip tracking system, I think these technologies could and should be used for progressive sentencing reforms.  I suspect many offenders at initial sentencing and when considered for parole would happily agree to microchip tracking over a longer term of incarceration.  Moreover, the fact that "we tag our pets" this way is not clearly a sign it is inhumane; after all, as noted here, those objecting to lethal injection generally want the criminal justice system to adopt the protocols we use for our pets.

Some related posts on GPS tracking:

• Are microchip implants for offenders inevitable?
• A sober (and caffeinated) look at GPS tracking realities
• The practical challenges of sex offender tracking
• Are we willing to pay the costs of (effective?) technocorrections like GPS tracking?
• The devil's in the details of GPS tracking of sex offenders
• Is GPS tracking a better way?
• More on the pros and cons of GPS tracking
• New article examining incapacitation innovations

Georgia Supreme Court considers banishment as punishment

Thanks to this post headlined "Virtual Banishment" from Of Counsel, I saw this interesting AP article entitled "Ga. court to hear challenge to state's banishment policy."  Here are some excerpts:

Georgia's judges are barred from banishing criminals from the state, but some use a legal maneuver to get around the ban: Restricting the offenders from all but one of the state's 159 counties.  That often means confining selected offenders to remote counties in rural Georgia, or hard-to-reach spots near the Okefenokee Swamp....

[This issue arises] Monday in Georgia Supreme Court as justices hear the case of Gregory Mac Terry, who was banished from every county but one after pleading guilty to assault and stalking charges.... Terry was sentenced to 20 years in prison and 10 more years on probation — with the condition that he be banned from all Georgia's counties except Toombs County in southeast Georgia. 

The banishment effectively blocked his release from prison in June 2001 when he was told he had a chance to be paroled if he completed a work release program. But he couldn't start the program because he was banned from living and working in Fulton County, a development that set his parole date back until June 2009, according to his lawsuit....

Terry's attorney, McNeill Stokes, said the [banishment] practice is an "unconstitutional outrage" that's aimed at getting his client — who has no family or job in Toombs County — to flee the state. "It's a throwback to the dark ages," said Stokes. "The whole point behind this is zealous prosecutors wanting to get rid of problems in their counties."

The unpaid costs of financial punishments

A helpful reader sent me this link to an effective AP article from the Pittsburgh Post-Gazette that highlights practical realities that surround financial punishments.  Here are excerpts:

A young burglar accused of burning down the St. Paul United Methodist Church 13 years ago was ordered to make $2.4 million in restitution. It was, at best, wishful thinking on the part of the court. A new church was built, but no thanks to him.  He coughed up a paltry $374.

Across the nation, billions of dollars in restitution, fines and court fees go unpaid, in part because the amounts are often symbolic -- so large that many defendants can't possibly pay up -- but also because many states and courts are ill-equipped to go after whatever money is available.

In Pennsylvania alone, the amount of unpaid fees, fines and restitution stands at a whopping $1.55 billion, including $187 million in Allegheny County, The Associated Press found.  Pennsylvania came up with the figure -- its first-ever statewide estimate -- after the AP asked it to run a query through a new court computer network.

"When you have a billion dollars' worth of outstanding restitution orders, you can see that the system is in collapse," said Philadelphia District Attorney Lynne Abraham. "It's a system that's fraught with inadequacies, improper checks and balances, no procedures in place. It's sort of a haphazard little dance that everyone dances around."

That is changing in some places. Many states have begun taking steps to force defendants to pay up, in some cases turning to outside companies for help, or ratcheting up their own in-house collection efforts. In Arizona, the amount of unpaid court costs, fines, fees and restitution totaled $831 million at last count. But the state has managed to bring in close to $90 million since it contracted four years ago with Affiliated Computer Services of Dallas, said Michael DiMarco, consolidated collections manager for Arizona's courts. Missouri and Minnesota also use Affiliated....

The total amount of fines and restitution owed in all 50 states is unclear. A national court organization and the U.S. Justice Department have no comprehensive figures.  The $1.55 billion in unpaid debt in Pennsylvania, accurate as of June 30, includes some orders that go back decades. The amount includes $638 million in restitution and $912 million in court costs, fees and fines.

About one-quarter of the total is owed by people who are in prison and generally can afford no more than token payments. Large amounts are owed by ex-cons and others who are struggling to make ends meet....

Prosecutors say collections would increase if judges would declare people who do not pay in violation of their probation, but that often falls behind other priorities, like trying to keep released criminals employed, drug-free and out of jail. To many judges, jailing people for nonpayment smacks too much of debtor's prison.

A sober (and caffeinated) look at GPS tracking realities

This week brought two strong pieces from Seattle ("where coffee reigns") that thoughtfully discuss the realities of the hottest development in technocorrections: GPS tracking. Here are links and excerpts from the pieces.

From the Seattle Post Intelligencer here, "GPS for state sex offenders gets split verdict":

More than 40 states use the Global Positioning System to track offenders.  At least 15 require some kind of lifetime monitoring. In California, voters passed a punitive law last year requiring all felony sex offenders -- about 4,000 people -- to wear a tracker for life.

"We have so much business that we can hardly keep up with manufacturing. We're exploding," said David Segal, vice president of software development for Florida-based Pro Tech Monitoring, the country's main provider of GPS correctional trackers.

In Washington, tracking was a largely unfunded, little-used program until September, when Gov. Chris Gregoire ordered immediate funding for it.

From the Seattle Times here, "Are GPS devices for sex offenders worth it?":

More than 20 of the state's most violent sex offenders are tethered to tracking devices that document their locations within a half-block.  The devices are at the heart of Gov. Christine Gregoire's promise to keep people safe from sex predators.

On Wednesday, the governor asked the state Legislature for $8.2 million to better monitor sex offenders.  Nearly $1 million would go toward purchasing the tracking sets for the Department of Corrections (DOC); about $5 million would pay for in-person visits of sex offenders by law enforcement.

But community corrections officers doubt whether the $1,500 devices — ankle bracelets, locator boxes designed to be strapped on people's belts and charging units — would ensure that sex offenders are abiding by the terms of their parole.

Ninth Circuit ruling provides (non)sober ending to quite a week

Since I plan to celebrate Repeal Day some more this weekend after quite a sentencing week, it is fitting that I'll do a last pre-weekend post noting the Ninth Circuit's ruling today in US v. Betts , No. 06-50205(9th Cir. Dec. 14, 2007) (available here).  Though there are lots of notable part to Betts (as AL&P and Sean note), I just like to highlight that the Ninth Circuit struck down a supervised release condition which required the defendant to "abstain from using . . . alcohol."  Here's a key passage from the court:

This is not to say that there is anything wrong generally with supervised release conditions requiring abstention from alcohol.  Many people commit crimes when they drink too much, and such conditions are often necessary to protect the public and provide correctional treatment. We have upheld abstention conditions where there is some indication in the record of a problem of abuse. Frequently the need for abstention is obvious from the defendant’s criminal history, and the court does not need any admissions from the defendant, because of such past offenses as drunk driving. But the decision has to be individualized, not a matter of policy applicable without regard to the individual defendant.

I'll drink to that!  (But don't drink and drive, or else you might soon see your picture on a billboard.)

Pretty in pink?

Though the graphic and headline in this post might suggest otherwise, I am not joining the Truly Bad Movie Meme (details here and here).  Rather, I am setting up this local article about a corrections innovation:

Those who paint Miami County red may wake up in a pink jail cell. It's not a bad dream, but the result of a paint job under way at the Miami County Jail in downtown Troy. The pink walls were the idea of Sheriff Charles Cox, but downtown jail administrator Dee Sandy selected the shade of pink for block walls and the accent colors for the metal bars, bunks and doors.... "It actually is really pretty," Sandy said.

Cox said the idea for the pink jail "basically came off the top of my head." He half jokingly suggested that "sometime we should paint the jail pink. It (the color pink) is supposed to have a soothing effect." Sandy said the first time the sheriff mentioned the concept to her, she thought he was joking. Inmates have found out otherwise.

A shameful break from all the FSG talk

Thanks to a number of kind readers, amidst all the federal sentencing excitement I still found time to read this interesting article from the New York Times headlined "A Starring Role for Drivers Who Drink."  As regular readers know, I tend to be a cautious supporter of shaming sanctions and I tend to worry that sentences for DWI are often too lenient given all the lives lost and persons harmed by drunk drivers.  Consequently, I am intrigued by the article's discussion of a new type of shaming sanction:

A conviction for driving under the influence of alcohol is something many people try to conceal, even from their families.  But now the bleary-eyed, disheveled and generally miserable visages of convicted drunken drivers here, captured in their mug shots, are available to the entire world via a Web site.

The hall of shame is even worse for drunken drivers convicted of a felony.  A select few will find their faces plastered on billboards around Phoenix with the banner headline: Drive drunk, see your mug shot here. 

The Web site and billboards, which began last month, are the brainchildren of Andrew P. Thomas, the county attorney here who has served as the prosecutorial counterpart to the county’s hard-edged sheriff, Joe Arpaio, who has been known to force inmates into pink underwear. The purposes of the billboards and the Web site, Mr. Thomas has said, are to inform the public about drunken-driving laws, and to serve as a deterrent. “People tend to like it, and it gets a message across to the offender,” said Mike Scerbo, a spokesman for Mr. Thomas, who declined to be interviewed. “We haven’t heard any complaints.”

There are five billboards near freeways in the Phoenix area, with Mr. Thomas’s name in bold letters, and more will be up soon, Mr. Scerbo said.  While other states have used shame tactics like forcing convicted drunken drivers to use special license plates or pick up roadside litter wearing a placard announcing their crimes, defense lawyers and the spokeswoman for the national chapter of Mothers Against Drunk Driving said they had never heard of billboards or the Internet being used as scarlet letters. The billboards will only feature convicted felons, whose crimes, which almost always involve someone’s death, are explained in detail on the Web site, StopDUIAZ.com.

Restitution, victim rights and judicial activism

Thanks to this post at Crime & Consequences, I see that earlier this week the California Supreme Court ruled in People v. Giordano, S138382 (Cal. Nov. 26, 2007) (available here), that a sentencing judge can order restitution to the spouse of a homicide victim for his or her future economic losses.  The majority opinion includes an effective overview of the evolution of the state’s restitution scheme.  And the lone dissenter, Justice Kennard, indirectly accuses the majority of inappropriate judicial activism based on their personal sympathies for the victim. Here is how the dissent begins:

The majority holds that in a criminal proceeding the sentencing court may order a defendant who has been convicted of a homicide crime to pay the deceased victim’s surviving spouse, as restitution, a portion of the estimated income that the deceased victim would likely have earned.  In the tragic circumstances of this case, that holding is certainly appealing. But the Legislature has established other methods by which a surviving spouse may obtain restitution for loss of economic support resulting from a homicide victim’s death — the surviving spouse may bring a civil wrongful death action (Code Civ. Proc., § 377.60) against the defendant or apply to the state Restitution Fund established for crime victims (Gov. Code, § 13950 et seq.).  A close review of the pertinent legislative scheme reveals several reasons to doubt that the Legislature has, in addition to these two clearly established methods for obtaining restitution for lost support, also authorized sentencing courts to include this category of loss in a direct restitution order.  It seems more likely that the Legislature reasonably decided that the criminal sentencing process is ill suited to making the often exceptionally complex damage calculations that are required.

Because I do not think the term "judicial activism" has any real meaning (and have been particularly troubled by its use as an epithet), I do think the California Supreme Court might be accused in this case of "making policy from the bench."  Apart from the specific ruling here (which also merits comment), I wonder what commentors think about the concern that the Justice here are letting personal policy views color their legal analysis.

Who will shape the future of technocorrections?

Among lots of great new posts at Corrections Sentencing is this item noting that the Baylor College of Medicine has a new program focused on some issues that may arise in many future debates of technocorrections.  The program's webpage is at this link, and here is part of its self-description:

Baylor College of Medicine’s Initiative on Law, Brains and Behavior addresses how new discoveries in neuroscience should navigate the way we make laws, punish criminals, and develop rehabilitation.  The project brings together a unique collaboration of neurobiologists, legal scholars, ethicists, medical humanists, and policy makers, with the goal of running experiments that will result in modern, evidence-based policy.

Emerging questions at the interface of law and neuroscience include: .... Can novel technologies such as brain imaging be leveraged for rehabilitation?  How should juries assess responsibility, given that most behaviors are driven by systems of the brain that we cannot control?

In conjunction with study and development of policy, the initiative will fuel the development of new technologies for diagnosis and rehabilitation — for example, describing neural signatures that predict recidivism, and deve