Thursday, April 23, 2015

Florida Supreme Court reverses cop killer's death sentence on proportionality review

As reported in this local article, the "Florida Supreme Court has overturned the death sentence of Humberto Delgado, who was convicted of gunning down Tampa police Corporal Mike Roberts in 2009." Here are the details of why:

In an opinion issued Thursday, a unanimous court ruled that Delgado's extreme mental illness, coupled with the circumstances of the crime, made a death sentence disproportionate as compared with other murder cases. The court sent the case back to the circuit court, where Delgado will be resentenced to life in prison with no chance of release....

Delgado, 40, who once worked as a police officer in his native Virgin Islands, was sentenced to death in 2012. At his trial, doctors testified about Delgado's history of delusions and psychotic behavior. All diagnosed him with bipolar disorder with varying degrees of psychosis.

Their examinations revealed that in his early adulthood, Delgado was plagued by a belief that police were out to kill him and that people were following him and sitting in trees outside his home. He also told his family that he had to cut off his children's legs because they were "goat legs" and they were "evil." He was known to wander the streets at night, saying that demons, the Masons, and the rapper 50 Cent were trying to kill him.

Delgado had been hospitalized multiple times before he ended up living with relatives in Oldsmar. On Aug. 19, 2009, he walked 15 miles from there, pushing a shopping cart that held four guns, on his way to a veterans hospital in Tampa. That night, Roberts stopped Delgado near the corner of Nebraska Avenue and Arctic Street. Delgado gave Roberts his identification. When Roberts started to search his belongings, Delgado tried to run. Roberts then shocked Delgado with a Taser. Delgado hit Roberts several times before shooting him....

In its opinion, the Supreme Court noted that the death penalty is intended for cases in which the aggravating factors greatly outweigh any mitigating factors presented by the defense. "We do not downplay the fact that Corporal Roberts lost his life as a result of Delgado's actions," the justices wrote. "However ... we are compelled to reduce Delgado's sentence to life imprisonment because death is not a proportionate penalty when compared to other cases."...

Mentally ill inmates are rarely executed in Florida, due to the length of the appeals process and the moral, ethical and legal issues associated with executing the insane. Recently, courts have trended away from capital punishment for the mentally ill.

The full opinion is available at this link.

April 23, 2015 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

Should judge follow federal prosecutors' recommendation of no prison time for CIA leaker David Petraeus?

Petraeus-broadwellThe question in the title of this post is prompted by the sorted story surrounding the criminal misdeeds of former CIA director David Petraeus.  This press report, with the subheadline "Former CIA director and military commander expected to plead guilty to sharing government secrets with his biographer and lover, Paula Broadwell," provide the backstory leading up to this afternoon's sentencing of a high-profile federal defendant:

A scandal that began to unravel in Charlotte ends in Charlotte on Thursday when former CIA Director David Petraeus is expected to admit sharing top government secrets with his biographer and lover.

Under a February agreement with prosecutors, Petraeus, 62, will plead guilty to one count of unauthorized removal and retention of classified material, a misdemeanor that carries a maximum sentence of one year in prison and a $100,000 fine. The government will recommend that punishment for the former commanding general in Iraq and Afghanistan be limited to two years’ probation and a $40,000 fine.

U.S. Magistrate Judge David Keesler, who will preside over Petraeus’ hearing, is not bound by the plea deal. But legal experts say judges typically give great weight to such agreements.

Critics say the retired general is getting off light, given how zealously the Obama administration has pursued government leaks. By comparison, CIA analyst and case officer John Kiriakou, the whistleblower who revealed the secret CIA torture program, is serving a 30-month sentence. Open-government groups say President Barack Obama’s lieutenants have prosecuted more leakers than the rest of U.S. administrations combined.

“It’s hard to reconcile cases like that, and it leads to the conclusion that senior officials are held to a different and more forgiving standard than others,” said Steven Aftergood, director of the Project on Government Secrecy for the Federation of American Scientists in Washington, D.C.

The case against Petraeus, a former Obama confidant, has apparently troubled the administration from the start. The New York Times reported earlier this year that Attorney General Eric Holder was resisting the recommendations of his staff to charge Petraeus with a felony that could have led to possible prison time.

Petraeus resigned three days after Obama’s 2012 re-election. Up to then, the retired four-star general was among the most respected military leaders of modern times. He was sometimes mentioned as a future presidential or vice presidential candidate.

That all began to change three years ago. Paula Broadwell of Charlotte had already written “All In,” Petraeus’ biography. But in May 2012, the West Point graduate began sending a series of anonymous emails disparaging Jill Kelley of Tampa, Fla. Kelley was a friend of Petraeus and other military leaders. Broadwell, documents say, considered her a romantic rival.

Using “Tampa Angel” and at least one other pseudonym, Broadwell sent some of her emails from the old Dilworth Coffee shop on East Boulevard. Within weeks, the FBI had traced the messages back to Broadwell. In June 2012, agents visited the Dilworth home she shares with her husband, radiologist Scott Broadwell, and their two children. A search of her email accounts uncovered the affair. Prosecutors say Broadwell’s computer housed classified information that went far beyond her security clearance as a major in the Army Reserve.

Petraeus resigned as CIA director on Nov. 9, 2012. Court documents filed by acting U.S. Attorney Jill Rose of Charlotte and others say Petraeus shared eight “black books” with Broadwell that he compiled in Afghanistan. Prosecutors say the books held everything from secret codes and the identities of covert officers, to war strategy and notes from National Security Council meetings. Broadwell kept the books for at least four days beginning in August 2011, prosecutors say. The FBI later seized the books during an April 2013 raid on Petraeus’ home.

Petraeus lied to investigators about both having classified information and sharing it with Broadwell, according to court documents. Prosecutors say none of the classified material appeared in Broadwell’s book.

I am troubled by the appearance of disparate favorable treatment being shown to Petraeus, especially given how serious his offense conduct seems and his lies to investigators (which could have been charged as obstruction of justice).  Unfortunately, I do not think federal prosecutors have ever explained — or will ever have to explain — just why they gave Petraeus a seemingly "sweetheart" deal (every pun intended there).  Without any such explanation from federal prosecutors concerning how they exercised their charging and bargaining discretion in this case, it is difficult for me to make an informed judgment on the sentence being recommended by prosecutors for the former CIA director.

UPDATE: This CNN piece reports on the outcome via its headline: "Petraeus sentenced: 2 years probation; $100K fine." By Theodore Schleifer,

April 23, 2015 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Tuesday, April 21, 2015

"Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality"

The title of this post is the title of this notable new and timely paper concerning the potential impact of the Supreme Court case re-argued yesterday.  The piece is authored by Leah Litman, and here is the abstract:

This Essay examines the impact a favorable decision in Johnson v. United States could have at the various stages of post-conviction relief for three categories of prisoners -- prisoners whose convictions have not yet become final; prisoners whose convictions have become final but who have not yet filed a petition seeking post-conviction relief; and prisoners whose convictions have become final and who have already filed at least one petition seeking post-conviction relief.  In doing so, it offers a reading of the relevant cases and statutes that permits any defendant sentenced under the Armed Career Criminal Act to obtain relief based on a decision invalidating the residual clause.  It also highlights some under-explored statutes and doctrinal questions that courts will confront as they determine which prisoners should be resentenced in light of Johnson.

April 21, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, April 19, 2015

Highlighting the mental illness underbelly of modern incarceration

The front-page of my own Columbus Dispatch today has this effective article about my state's prison population headlined "Ohio’s prisons hold 10 times as many mentally ill as its psychiatric hospitals do." Here are excerpts:

The largest provider of mental-health services in Ohio is easy to find: Look no farther than the nearest state prison. More than 10,500 people in Ohio prisons, more than 1 in 5, have a diagnosed mental illness. And 1 in 12 has a serious and persistent condition such as schizophrenia or bipolar disorder. There are 10 times as many mentally ill inmates as there are patients in Ohio’s six psychiatric hospitals.

The numbers are higher for females: 41 percent of 2,510 inmates at the Ohio Reformatory for Women in Marysville are on the mental-health caseload.

Terry Russell, executive director of the National Alliance on Mental Illness Ohio, said these alarming figures are no accident. “These people are generally not in prison because they are criminals,” he said. “Most people that end up there are the most severely mentally disabled who get into trouble because they are untreated or resistant to treatment. Families many times desert them or don’t know how to help. They end up in the street, which puts them in harm’s way. In most cases, law enforcement gets involved.”...

Taxpayers pay the hefty tab for the 10,596 mentally ill inmates. The Ohio Department of Rehabilitation and Correction spent $41.7 million on mental-health care and medications in fiscal year 2014 and is projected to spend $49 million this year. That is on top of the $22,836 annual overall cost per inmate.

Gary Mohr signed up to run state prisons, not mental-health facilities, but he’s doing both. Cognizant of the issues, and the costs related to mentally ill inmates, Mohr opened residential treatment units at four prisons, including the Marysville facility. He is opening a fifth at the Grafton Correctional Institution. And he is hiring 27 more mental-health staffers and adding beds at the Allen Oakwood Correctional Facility in Lima, where seriously mentally inmates are housed.

Mohr said he is relaxing the long-standing policy of segregating mentally ill inmates with behavioral problems. “We are coming up with a policy where we do not keep inmates who are mentally ill in long-term isolation. Segregation is our default sanction, but our goal is to ensure that the behavior that got them there doesn’t happen again. This is going to be a major reform in Ohio and across the U.S."

Mohr also is pushing for greater support and more funding for mental-health courts, currently in just eight of 88 counties, to divert mentally ill people to less-costly, more-effective programs. “If these courts become familiar with the issues and can find suitable placements, particularly with Medicaid, we ought to be doing that instead of just launching them into prison.”

Dr. Kathryn Burns, chief psychiatrist in the prison system, said people with mental illnesses typically get arrested more often because their untreated behavior brings them into conflict with law enforcement. In the legal system, they have fewer chances of getting community treatment or probation because judges have limited options. The offenders have burned bridges with family members and in the community. Prison is often the last resort....

The expansion of the federal Medicaid program by Gov. John Kasich’s administration is making a big difference.... While Medicaid can’t be used to treat inmates in prison, it applies once they are discharged. The state has signed up all female prisoners for Medicaid and is working to enroll the men.

While there are encouraging developments, NAMI Director Russell remains troubled that prisons have become asylums for the mentally ill. The organization’s statewide conference on Friday and Saturday at the Hyatt Regency will focus on “criminalization” of the mentally ill. “We just have no place for those individuals who are ill enough to be in harm’s way but are not ill enough to end up in a hospital,” he said. “Criminalizing the mentally ill just makes no sense from a treatment and economic standpoint.”

April 19, 2015 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (2) | TrackBack

Friday, April 17, 2015

US Sentencing Commission releases data report on illegal reentry offenses

Late yesterday, the US Sentencing Commission released this 30-page report, titled "Illegal Reentry Offenses," which provides a details statistical accounting of the composition and sentencing of a huge chuck of cases in the federal criminal justice system. Here is how this report gets started:

This report analyzes data collected by the United States Sentencing Commission concerning cases in which offenders are sentenced under USSG §2L1.2 — commonly called “illegal reentry” cases.  Such cases are a significant portion of all federal cases in which offenders are sentenced under the United States Sentencing Guidelines.  In fiscal year 2013, for instance, illegal reentry cases constituted 26 percent of all such cases.  As part of its ongoing review of the guidelines, including the immigration guidelines, the Commission examined illegal reentry cases from fiscal year 2013, including offenders’ criminal histories, number of prior deportations, and personal characteristics.

Part I of this report summarizes the relevant statutory and guideline provisions.  Part II provides general information about illegal reentry cases based on the Commission’s annual datafiles.  Part III presents the findings of the Commission’s in-depth analysis of a representative sample of illegal reentry cases.  Part IV presents key findings.

Among the key findings from analysis of fiscal year 2013 data: (1) the average sentence for illegal reentry offenders was 18 months; (2) all but two of the 18,498 illegal reentry offenders — including the 40 percent with the most serious criminal histories triggering a statutory maximum penalty of 20 years under 8 U.S.C. § 1326(b)(2) — were sentenced at or below the ten-year statutory maximum under 8 U.S.C. § 1326(b)(1) for offenders with less serious criminal histories (i.e., those without “aggravated felony” convictions); (3) the rate of within-guideline range sentences was significantly lower among offenders who received 16-level enhancements pursuant to §2L1.2(b)(1)(A) for predicate convictions (31.3%), as compared to the within-range rate for those who received no enhancements under §2L1.2(b) (92.7%); (4) significant differences in the rates of application of the various enhancements in §2L1.2(b) appeared among the districts where most illegal reentry offenders were prosecuted; (5) the average illegal reentry offender was deported 3.2 times before his instant illegal reentry prosecution, and over one-third (38.1%) were previously deported after a prior illegal entry or illegal reentry conviction; (6) 61.9 percent of offenders were convicted of at least one criminal offense after illegally reentering the United States; (7) 4.7 percent of illegal reentry offenders had no prior convictions and not more than one prior deportation before their instant illegal reentry prosecutions; and (8) most illegal reentry offenders were apprehended by immigration officials at or near the border.

In 2013, there were approximately 11 million non-citizens illegally present in the United States, and the federal government conducted 368,644 deportations.  The information contained in this report does not address the larger group of non-citizens illegally present in the United States and, instead, solely concerns the 18,498 illegal reentry offenders sentenced under §2L1.2 of the United States Sentencing Guidelines in fiscal year 2013. Therefore, the information should not be interpreted as representative of the characteristics of illegal immigrants generally.

April 17, 2015 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (0) | TrackBack

Thursday, April 16, 2015

Notable defendant gets 10 years after 10th DWI in Texas as part of plea deal

Dent_hero_1500This story from the Dallas Morning News tells the remarkable story of a remarkable defendant with a remarkable inability to stop drinking and driving.  The piece is headlined "Author Jim Dent gets 10-year prison sentence after 10th DWI," and here are the basics:

Best-selling author Jim Dent was sentenced Wednesday to 10 years in state prison as part of a plea deal with Collin County prosecutors. The author of such books as The Junction Boys and Manziel Mania had pleaded guilty in November 2013 to two driving while intoxicated charges – his ninth and 10th such convictions that spanned more than three decades and four states.

But Dent fled to Mexico rather than attend his sentencing hearing at the McKinney courthouse in February 2014. He said he spent a year south of the border before hitting rock bottom and deciding to return to the states. He was arrested crossing the border into San Diego in late January and transported to Collin County in February to face the charges.

Dent worked as a sports writer covering the Dallas Cowboys for more than a decade for the Fort Worth Star-Telegram and the Dallas Times Herald. In 1991, he quit the newspaper business and became a nationally syndicated radio talk show host. He also started writing books. His status in sports circles and his bigger than life personality paved the way for his access to big names and exclusive events.

Because of the plea agreement, Thursday’s previously scheduled sentencing hearing was canceled as was the testimony from several witnesses. Instead, Dent appeared on video from the Collin County jail before District Judge James Fry for his sentencing. The video jail appearances are routine in cases that have been previously settled and save the county the costs of transporting inmates from the jail to the courthouse....

As part of the plea deal, Dent was sentenced to the previously agreed upon eight years in prison on the DWI charge from October 2012 in Allen. In that instance, Dent’s ex-girlfriend called police because Dent was trying to force her out of her car. He then rammed her car into her neighbor’s garage door with his F150 pickup. He was also sentenced to the maximum penalty of 10 years for the DWI charge from May 2013. In that case, a passer-by reported Dent driving recklessly in Allen before stopping at a Walgreens. Police were waiting for Dent when he came out of the store carrying a case of beer and a bottle of wine.

Because he skipped out on his sentencing hearing, Dent was also charged with two counts of bail jumping and failure to appear. He pleaded guilty Wednesday to both third-degree felony charges and was sentenced to the maximum 10 years in prison. All four prison sentences will be served at the same time. Dent will also get credit for time served.

As part of the plea agreement, prosecutors were able to declare Dent’s vehicle as a deadly weapon in both DWI charges. That finding means Dent will be required to serve at least half of his prison sentence before he is eligible for parole. Dent still has a DWI charge pending in Williamson County after he failed to appear for sentencing. In that case, Dent crashed into a tollbooth along State Highway 45 in Austin. He also has an active warrant in Garland County, Ark., for failing to comply with court orders after his DWI conviction there in 2007.

Dent’s drunken driving convictions date back to 1983 and include convictions in Arkansas, Oklahoma and Nevada as well as the Texas counties of Denton, Dallas, Brazos, Williamson and Collin. His court records over the years include multiple references for failing to appear in court, violating provisions for community supervision and continuing to drink alcohol. He drove while his driver’s license was suspended. And on several occasions, the only thing that kept him from driving drunk was the court-ordered ignition interlock device that prevented his vehicle from starting when it detected alcohol on his breath. Bonds were revoked, he got re-arrested and he posted new bonds....

In a jail interview last week, Dent said he was an alcoholic. He also declared he’d had his last drink before crossing the border. This will be his third entry in the state prison system. Dent was previously sentenced to eight years in prison after violating probation on a felony DWI charge out of Brazos County. He served nearly 22 months before being paroled. He was re-incarcerated for another three months after violating the terms of his parole.

Dent’s 10 convictions stood out largely because they came during his successful book career. But he’s far from alone. More than 1.1 million people were arrested across the country on charges of driving while intoxicated in 2013, according to the latest FBI crime statistics.

For an even fuller account of this defendant's life and times, the Dallas Morning News recently published this profile headlined "Jim Dent: The man, his books and the bottle."

April 16, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

Wednesday, April 15, 2015

Former NFL star Aaron Hernandez convicted of first-degree murder and to get mandatory LWOP

An this CNN piece reports, "former New England Patriots' star Aaron Hernandez nodded no as jurors in his Massachusetts trial found him guilty Wednesday of first degree murder, which carries a penalty of life imprisonment without the possibility of parole."  Here is more:

Hernandez was also found guilty of unlawful possession of a firearm and unlawful possession of ammunition. He will be sentenced Wednesday morning....

Hernandez was on trial for the shooting death of Odin Lloyd, whose body was found in a Massachusetts industrial park in June 2013. Lloyd's family appeared anxious in the Fall River, Massachusetts, courtroom prior to the verdict, as did the mother of Hernandez....

The sensational trial started in late January, just days before the Patriots' Super Bowl victory over the Seattle Seahawks. Prosecutors took months to present more than 130 witnesses to build their case. The defense wrapped up its witnesses in less than a day.

Prosecutors say Lloyd was seen June 17, 2013, around 2:30 a.m. with Hernandez and Hernandez's friends, Carlos Ortiz and Ernest Wallace, in a rented silver Nissan Altima. Later that day, a jogger found his body riddled with gunshots. Wallace and Ortiz, who were also charged with murder, have pleaded not guilty, and will be tried separately.

Hernandez's attorney, Sultan, told jurors that Hernandez "witnessed" Lloyd's killing, "committed by somebody he knew," and that the former NFL player "really didn't know what to do, so he put one foot in front of another" and moved on with his life. Two other men who were drug dealers allegedly killed Lloyd, Sultan told the jury.

Because this murder conviction carried a mandatory life without parole sentence under Masschusetts law, the sentencing process is something of a formality and thus can (and will) take place on the same day as the verdict was reached.

April 15, 2015 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (2) | TrackBack

Tuesday, April 14, 2015

Tough (and record-long) sentences for cheating Atlanta school administrators

Images (7)As reported in this lengthy USA Today article, "3 in Atlanta cheating scandal to serve 7 years prison," today was final sentencing day in a high-profile and seemingly unique state white-collar criminal case from Georgia.  Here are the details (with my emphasis added):

In a testy courtroom Tuesday, a judge presided over the sentencing of 10 former Atlanta public school educators convicted of participating in a widespread conspiracy to cheat on state tests, telling three defendants that they would serve seven years in prison.

Despite the contentions from Sharon Davis-Williams' and Tamara Cotman's lawyers that they had maintained their innocence and are first offenders, Judge Jerry Baxter of Fulton County Superior Court said that each is being sentenced to 20 years in prison, will serve 7 years of incarceration with the balance as probation and also must do 2,000 hours of community service and pay a $25,000 fine.

"She's convicted, and she's at the top of the food chain," Baxter said of Davis-Williams, who along with Cotman and Michael Pitts were regional directors in the city's school system during one of the country's largest cheating scandals. "Your client ran numerous fine educators out. She non-renewed them."

Pitts received the same sentence and also was sentenced to five years, to run concurrently, on a charge of influencing a witness. The sentences were higher than prosecutors' recommendations.

Although Baxter initially did not want to consider the top administrators as first offenders, he decided to allow that status for all 10. That will allow each to have their convictions erased upon completion of their sentences.

Two of those convicted, former testing coordinator Donald Bullock and former teacher Pamela Cleveland, decided to take a plea deal that prosecutors had offered. Cleveland became the only one of the former educators to elude jail time.

Any deals required an acceptance of responsibility from the former educators, District Attorney Paul Howard said. Bullock, who took the deal before Tuesday's hearing, was sentenced to five years probation, will serve six months in jail on weekends, give 1,500 hours of community service and pay a $5,000 fine.

Cleveland, who apologized in court, was sentenced to five years probation including one year 7 p.m.-to-7-a.m. home confinement, 1,000 hours of community service and a $1,000 fine. Prosecutors took into consideration her elderly parents, so she will be able to serve her home confinement at their house or any hospital where either might be a patient.

Bullock also will apologize and both waived their right to appeal. All were sentenced Tuesday after the judge in the case gave them extra time to negotiate deals with prosecutors.

The former educators' community service will be served at Atlanta's jail teaching inmates, some of whom are the victims of the problems in Atlanta's school system, Baxter said. "I think there were hundreds, thousands of children who were harmed," the judge said. "That's what gets lost in all of this."

Some of the defendants' lawyers pushed back at the expectation of a deal being reached, causing Baxter to cut them off and say he was ready to deliver his sentences immediately. He had delayed sentencing after learning that Howard had been talking to defense attorneys and thought the case could be resolved with sentencing deals. "I just wanted them to get a taste of it," Baxter said of the sentences he had in mind after he quickly delivered Davis-Williams' and Cotman's punishment. "Apparently, that didn't quite move them."

In an exchange with Pitts' lawyer, Baxter said he was worried that some of those convicted were more remorseful that they were caught than they were about cheating young students out of an education. "They should have rose up and said no," the judge said of pressure to alter standardized test scores. "They didn't, and here we are."

The former educators were convicted April 1 on a racketeering charge. Some faced additional charges. They had been accused of falsifying test results to collect bonuses or keep their jobs in Atlanta Public Schools. In all, 35 educators were indicted in 2013 on charges including racketeering, making false statements and theft. Many pleaded guilty and some testified at the trial.

A state investigation found that as far back as 2005, educators fed answers to students or erased and changed answers on tests after they were turned in. Evidence of cheating was found in 44 schools with nearly 180 educators involved, and teachers who tried to report it were threatened with retaliation.

This is fascinating stuff both with respect to sentencing procedure and sentencing outcomes, especially because it seems that the failure to show remorse and waive rights to appeal explains the length of the various sentences as much, if not more, than the actual criminal conduct.  Wowsa (and perhaps the basis for some interesting future appeal issues).

As the title to this post indicates, I would guess these sentences are harshest ever given to cheating school administrators.  That said, it does seem the behavior here was maybe the worst, long-running examples of school cheating ever prosecuted criminally.

April 14, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Monday, April 13, 2015

Blackwater guards who shot Iraqi civilians all given lengthy federal sentences

As reported in this new Washington Post piece, a "federal judge in Washington handed down prison terms of 30 years to life behind bars to four Blackwater Worldwide guards convicted in a deadly 2007 shooting that killed 14 unarmed Iraqis and injured others in a Baghdad traffic circle."  Here are the basic details:

U.S. District Judge Royce C. Lamberth sentenced Nicholas A. Slatten of Sparta, Tenn., to life in prison. Slatten is the only of the four guards convicted of murder in the incident, in which American security contractors fired assault rifles and grenades into halted noonday traffic, a low point of the U.S. war in Iraq that sent relations between the two countries into a crisis.

Three other guards, Paul A. Slough of Keller, Tex.; Evan S. Liberty of Rochester, N.H.; and Dustin L. Heard of Knoxville, Tenn., were convicted of multiple counts of manslaughter and attempted manslaughter in the Sept. 16, 2007, incident at Baghdad’s Nisoor Square. All three were sentenced Monday to 30 years plus one day in prison.

April 13, 2015 in Offender Characteristics, Offense Characteristics | Permalink | Comments (1) | TrackBack

Sunday, April 12, 2015

Considering one defendant getting a second look due to Miller retroactivity

10juvenile-1-master675One big reason I believe the Supreme Court's Eighth Amendment ruling in Miller v. Alabama ought to be fully retroactive is because doing so will not be any kind of windfall for juve murderers given a mandatory LWOP.  Rather, as this new New York Times article highlights, all that Miller retroactivity entails is that an offender get a new sentencing hearing in which a judge will consider whether an LWOP sentence was truly justified in light of the nature and circumstances of the offense and the full history and characteristics of the defendant.  The article, headlined "A Murderer at 14, Then a Lifer, Now a Man Pondering a Future," merits a full read, and here is a teaser from the start of the piece:

Adolfo Davis admits he was a swaggering thug by the age of 14 as he roamed and dealt drugs with a South Side gang.

He also describes a childhood of emotional and physical deprivation: a mother fixated on crack, an absent father, a grandmother’s overflowing and chaotic apartment.

From the age of 6 or 7, he often had to buy his own food or go hungry, so he collected cans, pumped gas for tips and shoplifted. At 10, he went to juvenile hall for wresting $3 worth of food stamps and 75 cents from a girl. At 12, he fell in with the Gangster Disciples. “I loved them, they protected me, they were my family,” Mr. Davis said in a recent interview.

At 14, in 1990, he was out with two gang members when they robbed a rival drug house and shot the occupants, leaving two dead.  Now 38, he has spent the last 24 years in prison on a mandatory sentence of life without parole.

But his future will be reconsidered in a new sentencing hearing here on Monday. It is one of the first such proceedings in Illinois to result from the Supreme Court’s landmark ruling in Miller v. Alabama that juvenile murderers should not be subject to mandatory life without parole....

The 2012 decision did not say whether the new rules should apply retroactively, to cases long closed. Since then, state and lower federal courts have disagreed, creating drastic differences for prisoners depending on where they live.

Ten states, including Illinois, are applying the standard to pre­2012 cases and have started the process of resentencing. Four states — Louisiana, Michigan, Minnesota and Pennsylvania, with about 1,130 prisoners who could be affected — have declined to make the ruling retroactive.  The Supreme Court is expected to clarify the issue next fall, when it hears the appeal of a convict in Louisiana....

Here and around the country, victim rights groups have strongly opposed the reopening of past sentences.  “The families of the victims will suffer the most,” said Jennifer Bishop-Jenkins, a co­founder and board member of the National Organization of Victims of Juvenile Murderers.

She became a champion of victim rights 25 years ago when her pregnant sister and her sister’s husband were murdered in Winnetka, Ill., by a 16­-year-old who received a mandatory life sentence. “When I started thinking of the possibility that we’d have to go back to court, I couldn’t sleep for four months,” she said.  “Our mother was devastated.”

A new sentencing hearing in that case is scheduled for this month. While Ms. Bishop­-Jenkins feels confident that the killer, because of the particulars of his acts, will have the life sentence renewed, she noted that the transcript of his original sentencing hearing was missing and that key witnesses were dead or gone. 

Re­creating a fair sentencing process is often impossible in old cases, she said, and there are ample existing ways to pursue what seem to be unwarranted life sentences, such as executive clemency or other petitions.

Mr. Davis’s supporters said they had not been able to find any relatives of the two murder victims in his case; none have come forward to comment on his resentencing....

Before the hearing on Monday, Mr. Davis’s lawyers — Patricia Soung of the Loyola Law School in Los Angeles and Rachel Steinback, a lawyer with the civil rights law firm Loevy & Loevy in Chicago — prepared a sentencing memo calling for his release because of his remorse, his growth and his mentoring of others while in prison.

The Cook County prosecutors have not prepared a written statement, but they are expected to argue for a new life sentence.  Opposing the 2012 clemency bid, the prosecutors said young Adolfo had been “an active and willing participant in the murders” and “was not simply a naïve child being led astray by older friends.”...

The two sides will present their cases orally before Judge Angela Petrone of the Cook County Circuit Court.  During or after the hearing, the judge could order anything from a new life term to an immediate release for time served.

April 12, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, April 10, 2015

Based on "discovery violation," Florida appeals court reverses convictions for defendant given LWOP sentence for first child porn possession conviction

Long-time readers may recall the remarkable state sentencing story, covered here and here,  involving Daniel Enrique Guevara Vilca.  In 2011, a Florida circuit court judge sentenced Vilca, then aged 26 and without any criminal record, to LWOP based on a laptop containing hundreds of pornographic images of children.  On appeal, Vilca challenged his trial and his severe sentence, and he prevailed in an opinion released just today.  Here are part of the opinion in Guevara-Vilca v. Florida, No. 2D11-5805 (Fla. App. 2d Dist. Apr. 10, 2015) (available here), with a few cites omitted):

Daniel Guevara-Vilca appeals his convictions for possession of child pornography.  Owing to a discovery violation by the State, we reverse and remand for a new trial....

During the trial, the State introduced 206 photographs and 248 videos containing child pornography, each of which was charged in a separate count.  The file names generally contained descriptive terms.  All of the material had been downloaded to the laptop from January 2009 to January 2010 using LimeWire, a file-sharing program.  The files were found in thirteen different folders on the computer, including the recycle bin....

The jury returned guilty verdicts on all 454 counts.  Although Guevara-Vilca had no prior criminal record, under his sentencing scoresheet the minimum permissible sentence was 152.88 years in prison; the scoresheet contained enough points to permit a sentence as severe as life imprisonment.  The trial court sentenced Guevara-Vilca to 454 concurrent life terms....

Guevara-Vilca raises multiple issues on appeal.  We agree with his assertion that the trial court erred in its handling of the State's discovery violation.  The State was required to disclose Guevara-Vilca's pre-Miranda response to the detective's question, see Fla. R. Crim. P. 3.220(b)(1)(C), and it admittedly did not do so.... The record cannot be said to affirmatively reflect that the discovery violation caused no prejudice to the defense; to the contrary, the record strongly supports the opposite conclusion....

We reverse Guevara-Vilca's convictions and remand for a new trial.  This renders moot, for now, the sentencing issue raised on appeal.  Guevara-Vilca argued, below and on appeal, that a life sentence violated the constitutional prohibition against cruel and unusual punishment.  Our analysis of the sentence at this point would be dicta, and it is not our intention to prejudge an issue that may be raised in a subsequent appeal if Guevara-Vilca is convicted on remand.  But the issue, if raised, deserves serious consideration by the sentencing court.  Indeed, it is noteworthy that if Guevara-Vilca had been charged with possession of child pornography with intent to promote, he could have been convicted and sentenced for only one second-degree felony count rather than 454 third-degree felony counts.

Also, if Guevara-Vilca is again convicted and sentenced on remand, defense counsel will not be limited to the arguments previously raised and he may, if justified, advance grounds for a downward departure. Guevara-Vilca's mother testified at sentencing that her son was born prematurely and that, at ages five and around thirteen, he had surgeries to remove brain tumors.  Expert testimony may illuminate the ramifications of this medical history. Guevara-Vilca stated in his interview that while he graduated from high school, his grades were "D's and E's."  Cf., e.g., § 921.0026(c), (d), Fla. Stat. (2008) (providing for downward departures when defendant's capacity to appreciate criminal nature of conduct or conform to law was substantially impaired; or when defendant requires, and is amenable to, treatment for mental disorder unrelated to substance addiction).

Prior related posts:

April 10, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Thursday, April 09, 2015

"Reality check: Is sex crime genetic?"

ImagesThe question in the title of this post is the headline of this interesting new Science piece that a helpful reader sent my way.  Here are excerpts:

A splashy headline appeared on the websites of many U.K. newspapers this morning, claiming that men whose brothers or fathers have been convicted of a sex offense are “five times more likely to commit sex crimes than the average male” and that this increased risk of committing rape or molesting a child “may run in a family’s male genes.”  The study, published online today in the International Journal of Epidemiology, analyzed data from 21,566 male sex offenders convicted in Sweden between 1973 and 2009 and concluded that genetics may account for at least 40% of the likelihood of committing a sex crime. (Women, who commit less than 1% of Sweden’s sexual offenses, were omitted from the analysis.) The scientists have suggested that the new research could be used to help identify potential offenders and target high-risk families for early intervention efforts.

But independent experts — and even the researchers who led the work, to a certain degree — warn that the study has some serious limitations. Here are a few reasons to take its conclusions, and the headlines, with a generous dash of salt.

Alternate explanations: Most studies point to early life experiences, such as childhood abuse, as the most important risk factor for becoming a perpetrator of abuse in adulthood. The new study, however, did not include any detail about the convicted sex criminals’ early life exposure to abuse.  Instead, by comparing fathers with sons, and full brothers and half-brothers reared together or apart, the scientists attempted to tease out the relative contributions of shared environment and shared genes to the risk of sexual offending....

Data on sexual crimes are tricky to obtain and parse: It’s extremely difficult to collect sufficient data about sexual offenders and their families to detect statistically robust patterns.  Sweden is unusual because its nationwide Multi-Generation Register allows researchers to mine not only anonymized criminal records, but also to link them with offenders’ family records as well.  Even with access to a nationwide database, Seena Fazel, of the University of Oxford in the United Kingdom, and colleagues had to include a very diverse range of offenses, from rape to possession of child pornography and indecent exposure, to maintain a large sample size.

The team did do some analysis by type of offense, separating rape from child molestation, for example.  But some researchers worry that attributing a genetic basis to such a wide swath of behaviors is premature.  There are also problems with relying on conviction records: Many more sexual crimes are committed than reported, and the proportion of those that go to trial is even smaller.

In addition, families with one member who has been convicted of a sexual offense are likely to be under much higher scrutiny by social services and law enforcement, leading to potential detection bias that artificially enhances the perception that sex crimes run in families, says Cathy Spatz Widom, a psychologist at the City University of New York who studies the intergenerational transmission of physical and sexual abuse.  In a recent study, for example, Widom found that parents with a formal record of being abused as children were 2.5 times more likely to be reported to Child Protective Services for abusing their own children than parents in a control group who admitted to abusing their children, or whose kids said they had been mistreated.

The absolute risk of becoming a sex offender is very low: One of the study’s more dramatic-sounding findings is that brothers and fathers of sex offenders are four to five times as likely as men in the general population to commit sex crimes themselves. That statistic seems pretty striking until you look at the low prevalence of sex offense convictions in Sweden overall....

In summary, there’s no doubt that some families are at a higher risk for abuse and criminal behaviors, including sexual offenses.  But we’re a long way from pinning down genes that can explain why a person commits rape or any other sex crime.

April 9, 2015 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Tuesday, April 07, 2015

"Miller V. Alabama and the Retroactivity of Proportionality Rules"

The title of this post is the title of this very timely new article by Perry Moriearty just now available via SSRN.  Here is the abstract:

In its 2012 decision in the companion cases of Miller v. Alabama and Jackson v. Hobbs, the Supreme Court declared that it was unconstitutional to sentence children to mandatory life without parole because such sentences preclude an individualized consideration of a defendant’s age and other mitigating factors.  What Miller did not address, however, and what has confounded lower courts over the last two years, is whether the ruling applies to the more than 2,100 inmates whose convictions were already final when Miller was decided.  In all but one case, the question has come down to an exercise in line drawing. If, under the Court’s elusive Teague retroactivity doctrine, Miller articulated a “substantive” rule of constitutional law, it is retroactive; if the rule is merely “procedural,” it is not.  The Supreme Court is all but certain to decide the issue in the near future.

I make two primary arguments in this Article.  The first adds to the growing body of commentary concluding that, while Miller has “procedural” attributes, they are components of a constitutional mandate that is fundamentally “substantive.”  The second argument applies broadly to all new constitutional rules which, like the Miller rule, are grounded in the Eighth Amendment’s proportionality guarantee.  As even those who favor of limitations on retroactivity have acknowledged, there is a normative point at which interests in “finality” simply must yield to competing notions of justice and equality.  I argue that finality interests may be at their weakest when the Court announces a new proportionality rule, because the practical burdens of review and theoretical concerns about undermining the consequentialist goals of punishment are simply not as pronounced with sentences of incarceration as they are with convictions. The risks of offending basic notions of “justice” may be at their most pronounced with new proportionality rules, however, because to deny relief to those whose sentences have been deemed “excessive” (or at a high risk of excessiveness) is to undermine the very principles of proportionality and fundamental fairness in which such rules are grounded.  Proportionality rules should therefore be afforded something close to a presumption of retroactivity.

Regular readers and SCOTUS fans know this article is timely because the Supreme Court has recently taken up a new case to finally resolve the lower court split over Miller's retroactivity. But I call this piece very timely because this very afternoon I am in Cambridge to talk about these exact issues with Judge Nancy Gertner's Harvard Law School sentencing class.  Coincidence?

April 7, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

New Urban Institute report examines challenges posed by mentally ill offenders

The Urban Institute today released this significant new report titled "The Processing and Treatment of Mentally Ill Persons in the Criminal Justice System: A Scan of Practice and Background Analysis." Here is an excerpt from the first few paragraphs of the report's executive summary (with few references omitted):

Mentally ill offenders possess a unique set of circumstances and needs. However, all too often, they cycle through the criminal justice system without appropriate care to address their mental health.  According to the Bureau of Justice Statistics, individuals with mental health needs make up a large proportion of the US correctional population.  An estimated 56 percent of state prisoners, 45 percent of federal prisoners, and 64 percent of jail inmates have a mental health problem.  These individuals often receive inadequate care, with only one in three state prisoners and one in six jail inmates having received mental health treatment since their admission.  Offenders with severe mental illness place even more strain on the criminal justice system as a whole, in terms of their unique case-processing requirements and treatment needs and their increased risk of recidivism. Housing mentally ill offenders in the criminal justice system is costly.  In addition to high health care costs, mentally ill inmates tend to have higher rates of prison misconduct and recidivism.

Despite the evidence that mental illness in the criminal justice system is a pressing concern, our comprehensive effort to identify cost-effective, evidence-based programs and policies for managing and treating mentally ill persons in the criminal justice system brought to light how limited current knowledge is on this topic.  There have been only a few rigorous evaluations of criminal justice programs and policies targeted at mentally ill offenders.  This limitation, in and of itself, is a notable finding, as it shows what more needs to be done to better understand how to effectively alleviate the costs and challenges of treating and processing offenders with mental illness in the criminal justice system. Given these challenges and their financial consequences for society and governments, it is important to understand how to identify and provide early intervention for those who suffer from mental illness in the criminal justice system.

This report focuses on the societal and economic costs of holding mentally ill offenders in jails and prisons.  It also presents a detailed discussion of how mentally ill offenders are processed in the criminal justice system, highlighting the diversity of protocols and practices outlined in state statutes to address these challenges.  Further, it discusses several promising criminal justice interventions and policies for mentally ill offenders....

April 7, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Friday, April 03, 2015

Should age matter at sentencing of elderly child molester?

The question in the title of this post is prompted by this local article headlined "Sentencing delayed for 89-year-old child molester in Santa Cruz County." Here are excerpts:

An 89-year-old Felton man is expected to be sentenced in May for molesting a girl younger than 9, but her supporters fear that his advanced age might play a role in a reduced sentence.

Thursday, Santa Cruz County Superior Judge Stephen Siegel delayed a sentencing for Eric Frank Greene, who already pleaded no contest to a felony charge of lewd acts with a minor. The crimes took place in 2004....  Prosecutor Rafael Vazquez said he does not believe there are other victims.  

Greene faces a wide range of sentences, from probation to up to eight years in prison. “I haven’t made an ultimate decision, but I am contemplating probation,” Siegel said in court Thursday.

More than 15 supporters of the victim attended the hearing, and Siegel said he received a folder full of letters about the case from many of them Wednesday that he needed to review. Because probation is his indicated sentence, the law requires Greene to be evaluated by a psychologist and by County Probation leaders to see if he would benefit from probation....

Greene, who has no criminal record in Santa Cruz County, remained out of jail. He said in court that he has severe hearing problems, but he walked without a cane or other aid and appeared in good health.

Vazquez said outside court that Greene caused ongoing psychological harm to the victim. “It doesn’t matter that he’s that old,” Vazquez said of Greene outside court.  “The fact is that he’s committed this egregious act. They want him to be held accountable just like any other person.”

April 3, 2015 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Thursday, April 02, 2015

You be the judge: what state sentence for unstable 1% whose reckless driving killed young family?

This AP story from Vermont, headlined "Victims' Family at Exec's Crash Sentencing: You're Heartless," reports on the first day of a dynamic sentencing hearing in a very sad case. Here are the details:

Family members of a Vermont couple killed in a car crash were unflinching during a sentencing hearing Wednesday as they poured out their anger toward a New Hampshire man who admitted causing the wreck, which also killed their unborn fetus.

Prosecutors have said Robert Dellinger told investigators he was trying to kill himself in December 2013 when he drove his pickup truck across an Interstate 89 median and smashed into an SUV carrying 24-year-old Amanda Murphy, who was 8 months pregnant, and her fiance, 29-year-old Jason Timmons.

The Valley News of West Lebanon reported that relatives of Murphy and Timmons tore into Dellinger during the first of the two-day sentencing hearing.  "I have been robbed and violated. I will never see or touch my child ever again," the newspaper quoted Timmons' mother, Debbie Blanchard, as saying, reporting that she fought back tears. "How could you be so heartless? You still have a family; you have taken mine from me."

Dellinger appeared to be deeply remorseful during the hearing, the newspaper reported. "You have my deepest, most heartfelt apology, condolences and remorse for your loss. I am so sorry," the 54-year-old Dellinger said through sobs. "My guilt and remorse will be with me forever. I ask for your forgiveness, and I pray for your healing."

Dellinger, of Sunapee, New Hampshire, was a senior vice president and chief financial officer at PPG Industries Inc. when he left in 2011 because of health problems. He also held high-level posts at Sprint Corp., Delphi Corp. and General Electric Co.  He pleaded guilty in February to negligent homicide for the deaths of the couple, who were from Wilder, Vermont, and to assault for the death of the fetus.  He faces 12 to 24 years in prison when sentencing resumes Thursday....

Defense lawyers have said Dellinger was suffering from delirium due to a "toxic regime" of prescription medications for multiple sclerosis and depression. In asking for a shorter sentence, they also contend he was suffering from withdrawal of a sleeping aid. Attorney Steven Gordon wrote in a sentencing brief they now know "a medical event" was the main cause "of this accident."

Dellinger has been jailed since his arrest in December. His lawyers want a sentence that would see him serve only about eight months in prison after being given credit for time already served.

Investigators say Dellinger told them that on the day of the accident he "had a disagreement with his wife and went to Vermont to drive around. He said he was very depressed and gloomy and wanted to have a car wreck and kill himself." On Wednesday, Dellinger told the court: "I have never been suicidal."

Assistant Attorney General Geoffrey Ward said in court that Dellinger's truck reached 101 mph in the seconds before the crash and was going 87 mph one second before he hit the SUV. His truck sheared off the top of the SUV. The medical examiner's report compared the injuries suffered by Murphy and Timmons to those of plane crash victims. Dellinger suffered cuts and bruises.

April 2, 2015 in Offender Characteristics, Offense Characteristics | Permalink | Comments (5) | TrackBack

Monday, March 30, 2015

"Monitoring Youth: The Collision of Rights and Rehabilitation"

The title of this post is the title of this notable and timely new paper by Kate Weisburd now available via SSRN. Here is the abstract:

A monumental shift in juvenile justice is underway, inspired by the wide recognition that incarceration is not the solution to youth crime.  In its place, “electronic monitoring” has gained widespread support as a new form of judicial control over youth offenders. Supporters herald it as “jail-to-go”: a cost-efficient alternative to incarceration that allows youth to be home while furthering rehabilitative and deterrent goals.  But despite electronic monitoring’s intuitive appeal, virtually no empirical evidence suggests its effectiveness.  Instead, given the realities of adolescent development, electronic monitoring may cause more harm than good.

This Article is the first to examine the routine, and troubling, use of electronic monitoring in juvenile courts.  After describing the realities of the practice and its proffered justifications, this Article refutes three key misperceptions about the practice: (1) that it lowers incarceration rates because it is used only on youth who would otherwise be detained; (2) that it effectively rehabilitates youth; and (3) that it is cost-effective.

Yet because of the deference afforded to judges in crafting terms of probation and pretrial release, the rehabilitative rhetoric of juvenile court, and the perception of electronic monitoring as non-punitive, electronic monitoring is subject to virtually no judicial oversight or scrutiny.  The result is that the practice exists in a legal and policy netherworld: wielded and expanded with almost no limits.  This Article concludes by arguing that electronic monitoring should be categorized as a form of punishment, warranting a new doctrinal framework that more rigorously evaluates, and circumscribes, monitoring and other forms of non-carceral control.

March 30, 2015 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (1) | TrackBack

Sunday, March 29, 2015

Oregon Supreme Court to consider constitutionality of LWOP sentence for public pubic promotion

This local article from the Beaver State, headlined "Oregon Supreme Court to consider: Is it 'cruel and unusual' to imprison public masturbator for life?," reports that the top court in Oregon is taking up a notable sentencing issue in a notable setting. Here are the details:

William Althouse is serving a life prison sentence -- but not because, like many in that situation, he killed someone.  Althouse, 69, has repeatedly exposed his genitals in public with sexual intent. In 2012, after a Marion County jury found him guilty of that conduct again, a judge sentenced him to life without any hope of being released.

The Oregon Supreme Court, however, announced Thursday that it will consider if that amounts to cruel and unusual punishment.  The sentence is disproportionate to the offense, said Daniel Carroll, the defense attorney who represented Althouse at trial, told The Oregonian/OregonLive on Friday. "No one died," he said.

The high court's consideration of the case seems particularly timely given another lengthy sentence -- 18 years -- handed down to a 49-year-old Sherwood man last week who was found guilty of masturbating or exposing himself eight times at the drive-through windows of fast-food restaurants and coffee shops.

In Althouse's case, the state likely will point out that he isn't only a serial flasher -- his life sentence was meant to reflect a long and concerning history of sex offenses. His sex crime convictions include sexual abuse in 1982 and kidnapping, sodomy and sexual abuse in 1993.

Typically, first-time public indecency offenders receive probation and counseling. It's unclear from court records how many times Althouse has been convicted of public indecency, but when he was convicted in 2002 of the crime, court records indicate that he had at least one earlier conviction.

Althouse, who was living in Salem, was arrested in his last case after a female jogger reported seeing him exposing his genitals -- the prosecution contended masturbating -- along a walking path next to the Salem Parkway in October 2011.  After a jury found him guilty in 2012, Marion County Circuit Judge Lindsay Partridge sentenced Althouse to the life term under an Oregon law meant to get tough on sex offenders after their third felony sex conviction.

One of many interesting aspects of this case is the import and possible impact of the age of the offender. In recent SCOTUS rulings, some Justices seemed sensibly influenced by the reality that an LWOP sentence for a juvenile offender can be functionally worse than even a no-parole 50-year sentence. But for an offender in his late 60s, an LWOP sentence is arguably functionally no worse than a no-parole 50-year sentence. Whether and how that should matter for constitutionally purposes is an issue still not yet resolved in debates over LWOP sentences that have been described as "living death sentences."

March 29, 2015 in Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Saturday, March 28, 2015

Notable effort by "World’s Worst Mom" to take on sex offender registries

This new Salon piece provides an interesting Q&A with notable author who has become famous for criticizing overprotective parenting and who is now criticizing what she sees as ineffective sex offender registries.  The piece is headlined "Stop the sex-offender registry panic: 'A lot of those dots on the map would never hurt your kids'," and here is how the Q&A is introduced:

Lenore Skenazy came to fame for letting her 9-year-old son ride the New York subway home by himself.  Or rather, she came to fame by letting him ride the subway home alone and then writing about it for the New York Sun.

The piece led to an outcry — she was dubbed “America’s worst mom” — which, of course, meant that the essay had to become a book: “Free-Range Kids, How to Raise Safe, Self-Reliant Children (Without Going Nuts With Worry).”  In the five years since its publication, the book has inspired a movement among parents who want to give their children the freedom to do things like walk home from school alone.  It’s a backlash to our age of “helicopter” and “bubble wrap” parenting. (If you suspect these monikers are exaggerations, consider that a Skenazy devotee recently had five police cars arrive at his house after his 10- and 6-year-old were seen walking alone.)  Now Skenazy has a show on the Discovery Life channel, “World’s Worst Mom,” which sees her swooping into homes and coaching overprotective parents in a style reminiscent of the ABC reality-TV show “Suppernanny.”

Recently, Skenazy has taken on a new, albeit related, cause: reform of the sex offender registry. Clearly, this lady is not afraid of controversy. On Sunday, she held a “Sex Offender Brunch” at her house to introduce “her friends in the press to her friends on the Registry.” One of her guests was Josh Gravens, who at age 12 inappropriately touched his 8-year-old sister and landed on the registry as an adult.... The materials accompanying her press release contend that the sex offender registry, which was created to “let people identify dangerous individuals nearby…has failed to have any real impact on child safety, and may actually do more harm than good.”  

She’s effectively flinging open the closet door and saying, “See? There’s no boogeyman in there” (or, if you will, flipping on the lights to offer assurance that the “monster” in the corner is actually just a lamp that made some mistakes when it was younger and means no harm).  This is entirely consistent with her “Free-Range Kids” activism, but she’s taking it a step further now, moving beyond just squashing parental fears about stranger danger to helping those who have been unfairly labeled as dangerous strangers.

March 28, 2015 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Thursday, March 26, 2015

"Mandating Discretion: Juvenile Sentencing Schemes after Miller v. Alabama"

The title of this post is the title of this notable new and timely paper available via SSRN authored by Jennifer Breen and John Mills. Here is the abstract:

Miller v. Alabama established that “children are different” and it required profound changes in the way states adjudicate juveniles within the criminal justice system.  This Article moves beyond standard interpretations of this significant decision and argues that Miller requires much more than abolition of mandatory juvenile life-without-parole sentences.  In addition to that sentence-specific ban, Miller establishes a right for juveniles to have their young age taken into consideration during sentencing.

This holding demands individualized consideration of a child’s age at sentencing, akin to sentencing procedures demanded by the Court in death penalty cases.  At the very least, it is clear that states may no longer treat a juvenile defendant as an adult without any opportunity to consider the impact of youth upon the defendant.  Yet this Article identifies eighteen states that continue to utilize these now unconstitutional sentencing schemes, contravening the most basic holding of the Court in Miller: “[C]hildren are constitutionally different from adults for purposes of sentencing.”

After contextualizing both the Miller decision and the process of transferring juveniles to adult court, this Article identifies a subset of states that fail to allow for consideration of the unique qualities of youth at any stage of the juvenile adjudication process.  These states are outliers and defy both the national consensus on juvenile adjudication and the Court’s mandate in Miller.  This Article concludes by proposing reforms to aid states in accommodating the implications of Miller while increasing reliability in juvenile sentencing. 

March 26, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack