Wednesday, May 27, 2015
"Will Mike Huckabee's Forgiveness of Joshua Duggar Extend to Other Youthful Offenders?"
The question in the title of this post is the headline of this provocative Huffington Post commentary authored by Steve Drizin. Here are excerpts:
I confess that I had never heard of Josh Duggar before Friday. I never watched TLC's 19 Kids and Counting show, never knew that Duggar was the eldest son of the Duggar family clan which includes ten boys and nine girls, never knew that Duggar worked for the Family Resource Council, the influential conservative Christian lobbying group. Mr. Duggar's name didn't register with me until the news broke this week that he had molested young girls, including several of his sisters, when he was a 14-year-old.
Now he matters to me. Not because of who he is or what he has done, but because Republican Presidential candidate Mike Huckabee came to Mr. Duggar's defense. While other potential Republican conservative candidates, many of whom have been pictured with Duggar over the years or have publicly supported his family's values, stayed silent on the sidelines, Mr. Huckabee moved quickly to call for forgiveness for Mr. Duggar....
Mr. Huckabee's statements have aroused the ire of many of his supporters. His Facebook page lit up with angry comments from fans. But I am not writing to join those who want to bury Mr. Huckabee. As someone who has represented many teenage offenders, I want to praise him.
Mr. Huckabee's call for mercy in this age of retribution is an act of political courage. Although his recognition that youthful offenders are less culpable for their crimes due to their immature judgment and more amenable to rehabilitation is, in the words of the United States Supreme Court, something that "every parent knows" and a matter of "common sense," few politicians -- conservatives, moderates, or liberals -- have echoed his words. In my book, he gets points for being willing to take a risk, even if he is simply stating the obvious when talking about young people who commit crimes.
But the book is not yet closed on Mr. Huckabee with regard to the Duggar affair. Will Mr. Huckabee stand silent on these issues in his run for the Presidency? O r will he use this case as a "teachable moment" and engage other conservatives (and moderates, liberals and progressives) in a debate about juvenile justice reform?
Will Mr. Huckabee's endorsement of forgiveness and privacy for Mr. Duggar, extend to the thousands of other adolescent sex offenders, who unlike Mr. Duggar, were convicted of sex offenses and are paying the price by being required to register as sex offenders. Will he call for mercy for these young men and women as well? Will he support efforts to allow them to prove that they are no longer a danger and no longer need to register? ...
Will Mr. Huckabee's recognition that "being a minor means that one's judgment is not mature" lead him to oppose prosecuting juveniles as adults, housing them in adult jails and prisons, or sentencing them to mandatory prison sentences? If he truly believes that young people are capable of rehabilitation, will he oppose life without parole and other draconian sentences for juveniles? Will he support greater funding for programs aimed at rehabilitating them? ...
Just how far will Mr. Huckabee's grace extend? Does he believe in second chances only for wealthy, white, or religious teenagers who use their influence and connections to get diverted from our juvenile and criminal justice systems or will he support the same second chances for the poor, mostly black and brown teenagers who fill our juvenile and criminal jails and prisons?
Is this true political courage or one-off favor for a politically connected friend and his family? Only time will tell.
Thursday, May 21, 2015
Examining what qualifies as an LWOP sentence for purposes of Graham and Miller
This new piece at The Marshall Project, headlined "Life Expectancy: How many years make a life sentence for a teenager?," spotlights an Eighth Amendment issue that has been engaging lower courts in the five years since SCOTUS in Graham began putting limits of LWOP sentences for juvenile offenders. Eventually the Supreme Court will have to resolve the issue of just what qualifies as an LWOP sentence, and here is an account of issue (with some links to notable rulings):
James Comer was 17 when he, an older cousin, and their friend made a series of violent and irreversible decisions: One night in April 2000, they robbed four people at gunpoint. They followed one of their victims for miles as she drove home from her night shift as a postal worker, then pointed a gun at her head outside her house. Comer’s friend, 17-year-old Ibn Ali Adams, killed their second victim when he discovered the man had no money.
Comer’s youth, his lawyers argue, was at least partly responsible for his poor judgment and impulsive behavior. And it is his youth that may save him from dying in prison. Earlier this month, an Essex County, New Jersey, judge ordered a new sentencing hearing for Comer in light of Miller v. Alabama. ...
But Comer isn’t serving life without parole, at least not technically. For felony murder and multiple counts of armed robbery, he was sentenced to 75 years. He will be eligible for parole, but not until his 86th birthday — more than 20 years past his life expectancy, according to actuarial data his lawyers cited. This sentence “amounts to de facto life without parole and should be characterized as such,” the judge wrote.
Miller v. Alabama was the third in what’s come to be known as the “Roper/Graham/Miller trilogy” of cases in which the Supreme Court ruled, essentially, that kids are different. Teenagers’ still-developing brains make them more impulsive, more susceptible to peer pressure, and less able to understand the consequences of their actions. This makes them less culpable than adults and more amenable to rehabilitation as they mature, the court said.
With Roper, the court outlawed the death penalty for juveniles. With Graham, it struck down life-without-parole sentences for non-homicide crimes. With Miller, the justices forbid mandatory life-without-parole sentences, even for murder. Life sentences for juveniles are allowed only if the judge first has the chance to consider how youth and immaturity may have contributed to the crime....
Now a growing number of courts are interpreting the trilogy even more broadly, applying their principles to cases, like Comer’s, that aren’t explicitly covered by the court’s rulings.
“When read in light of Roper and Graham,” Miller v. Alabama “reaches beyond its core holding,” the Connecticut Supreme Court held last month in State v. Riley. In that case, 17-year-old Ackeem Riley was sentenced to 100 years in prison after he shot into a crowd in a gang-related incident, killing one teenager and wounding two children. The court ordered a new sentencing hearing, finding that the sentencing judge had not adequately considered Riley’s youth. Though Miller specifically targeted mandatory life without parole sentences — technically, Riley’s sentence was neither mandatory nor life without parole — the Supreme Court’s reasoning “counsels against viewing these cases through an unduly myopic lens,” the Connecticut court said.
In Brown v. Indiana, the state supreme court ordered a new sentencing hearing for Martez Brown, who was 16 when he and two friends killed a couple in a botched robbery. Quoting Miller, the court ruled that “similar to a life without parole sentence, Brown’s 150 year sentence ‘forswears altogether the rehabilitative ideal.’” Although Brown’s sentence was not formally a life-without-parole sentence, they wrote, “we focus on the forest — the aggregate sentence — rather than the trees — consecutive or concurrent, number of counts, or length of the sentence on any individual count.”
May 21, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3) | TrackBack
"How America Overdosed on Drug Courts"
The title of this post is the headline of this lengthy and critical analysis of the modern drug courts movement appearing in the Pacific Standard magazine. The subheadling highlights its main themes: "Hailed as the most compassionate way for the criminal justice system to deal with addicts, drug courts were designed to balance punishment with rehabilitation. But after 25 years, the verdict is in: Drug courts embolden judges to practice medicine without a license—and they put lives in danger." I consider this piece a must-read for all those interested in drug sentencing reform, and here are excerpts:
The first drug court opened in Florida’s Miami-Dade County in 1989, near the height of the hysteria in this country over drugs, particularly crack cocaine. Both conservatives and liberals found something to love: Conservatives liked the potential for reduced prison spending, and liberals liked the emphasis on therapy. From the start, however, critics voiced concerns about “cherry picking,” because the courts only allowed into the program defendants who seemed likely to succeed whether or not they received help. This sort of selectivity was built into the system: The federal laws that determine eligibility for grants to create new drug courts (ongoing funding is primarily state and local) require that the courts exclude people with a history of violent crime. Many drug courts also bar people with long non-violent criminal histories. Predictably, this eliminates many of those who have the most serious addictions — the very people the courts, at least in spirit, are supposed to help.
Proponents of drug courts celebrate the fact that those who participate do better than similar defendants who are simply incarcerated or given standard probation. This is unquestionably true. “The average effect is to reduce new crimes by 10 to 15 percent,” says Douglas Marlowe, the chief of science, policy, and law for the National Association of Drug Court Professionals. (Those crimes include not only drug sales and possession but also crimes committed to pay for drugs, such as burglary and robbery.) “The vast majority of evaluations show that they work,” says Ojmarrh Mitchell, an associate professor of criminology at the University of South Florida, “and the effect size is larger than any other large-scale criminal justice intervention.”
These improvements are seen mainly in people who graduate, however, which is only roughly half of those who participate — a fact that the NADCP and other advocates tend to play down. Worse, defendants who start but do not complete drug court often serve longer sentences, meted out by judges as punishment, than they would have had they simply taken a plea and not tried to solve their drug problem. That strikes many critics as a manifest injustice. “This is intensifying the drug war on half of the people,” says Kerwin Kaye, an assistant professor of sociology at Wesleyan University. “It’s not stopping the drug war, it’s continuing it by other means.” Not only that, many people who fail to graduate drug court often go on to become worse offenders, compared to both graduates and to similar defendants who do not participate in drug courts. According to a 2013 study of New York’s drug courts conducted by the Urban Institute and the Center for Court Innovation, which included data on more than 15,000 defendants, 64 percent of non-graduates were rearrested within three years, whereas only 36 percent of graduates were. Among comparable defendants who did not participate in drug courts, just 44 percent were re-arrested in that period, suggesting that those who tried but flunked drug court did worse than those who served their time.
May 21, 2015 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack
Sunday, May 17, 2015
"Does Michigan's sex offender registry keep us safer?"
The question in the title of this post is the headline of this lengthy new Detroit Free Press article. The piece carries this subheadline: "Experts say such registries can be counterproductive; courts question constitutional fairness." Here are excerpts of a must-read piece for any and everyone concerned about the efficacy of sex offender regulations:
It has been 10 years since Shaun Webb, a married father and caretaker at an Oakland County Catholic church, was convicted of groping a teenage girl over her sweater, a claim Webb vehemently denies. Webb, then-37 with a clean criminal record, was convicted of misdemeanor sexual assault and sent to jail for seven months.
Though a misdemeanor, state law demanded Webb be listed on the same public sex offender registry as hard-core rapists, pedophiles and other felons. It has meant a decade of poverty, unemployment, harassment and depression for him. Under current state law, he'll be on the list until 2031. "It's destroyed my life," Webb said from his rural home in Arenac County, where he now lives alone with his dog, Cody.
Webb is one of 43,000 convicted sex offenders in Michigan, most of which appear on the state online sex offender registry managed by the State Police. Each state has a digital registry that can be searched on the Internet with a total of about 800,000 names. The registries are widely monitored by parents, potential employers and cautious neighbors.
To be sure, registries in Michigan and across the nation help track violent sexual offenders and pedophiles who prey on children, and they're also politically popular and get lots of traffic online. But Michigan's law — and some others across the nation — have come under fire lately as overly broad, vague and potentially unconstitutional. For example, Michigan has the fourth-highest per capita number of people on its registry and is one of only 13 states that counts public urination as a sex crime.
Research also suggests registries do little to protect communities and often create ongoing misery for some who served their sentences and are unlikely to re-offend....
Even some early advocates have changed their minds about registries, including Patty Wetterling, the mother of Jacob Wetterling, who went missing when he was 11 and was never found. Police suspect Jacob was abducted by a convicted pedophile who was living nearby unbeknownst to neighbors. No one was charged.
At the time, Wetterling lobbied passionately for a federal law authorizing registries and was at the White House in 1994 when President Bill Clinton signed legislation into law. But she now advocates revisiting the laws, saying some juveniles and others who made mistakes are unnecessarily tarred for decades or life. "Should they never be given a chance to turn their lives around?" she said in a published 2013 interview. "Instead, we let our anger drive us."
But some legislators and law enforcement officials say registries are useful because they help keep track of potentially dangerous people. The supporters also dismiss the research, saying it's impossible to determine who might re-offend. They caution against narrowing the definition in Michigan's law of who should be listed and are against adopting a new recommendation by some that defendants should be judged case by case by who is most likely to re-offend.
"The problem I have is should we go back and say only pedophiles have to register?" said state Sen. Rick Jones, a former sheriff who helped draft some of Michigan's sex offender registry laws. "Do we want violent sex offenders on the school grounds? Do we want public masturbators on the school grounds? I'm not prepared to change the way the list operates."
Many parents say the registries makes them feel safer. Lori Petty, a legal secretary, has been logging on regularly over the years as she raised her two sons in Commerce Township. "If they were going over to a friend's house to visit, I would look to see who lived nearby, if there was a high concentration," she said. "Not that there was anything I could do, but it helps to know." Her sons are now 18 and 25, and she monitors the site less frequently, using it to see who may have moved close by, she said. "I want to know who is living in my neighborhood."
Sex offender registry laws were first passed in the 1990s following a string of horrific child murders. The registries were originally accessible only by police, allowing them to track the most dangerous offenders. But lawmakers in Michigan and other states expanded the laws over the years — they are now public record and include teenagers who had consensual sex, people arrested for public urination, people who had convictions expunged at the request of their victims, and people like Webb who have no felony convictions.
Earlier this month, a Florida couple was convicted of lewd behavior after having consensual sex on a public beach. They will have to register as sex offenders for the rest of their lives. In Michigan, most of those convicted of sex offenses are listed online and show up with just a few key strokes on a website managed by the Michigan State Police....
Convicted sex offenders don't generate much public sympathy, but research in the last two decades shows they might not be very effective. And higher courts recently called registries harsh and unconstitutional, including a ruling last month that says parts of Michigan's law are vague and unconstitutional, making it impossible in some instances for offenders to know whether they are following the law. For many, there is also a question of fundamental fairness when, for example, a 19-year-old is convicted of having sex with his underage girlfriend or somebody convicted of public urination is grouped on the same list as a serial rapist.
Despite the court rulings and the research, it's doubtful public sex offender registries are going away, although it seems apparent Michigan and other states might be pushed into making some changes. A big question, though, is whether Michigan's expansive definition of who should be on the sex offender registry is fair to people like Webb....
Nationally, there are about 800,000 people registered as sex offenders across the 50 states. Michigan is particularly aggressive, ranking fourth in the nation with the number of offenders on the registry, following only California, Texas and Florida. It also ranks fourth per capita, with 417 registrants per 100,000 citizens. It is one of only 13 states that count public urination as a sex crime, although two convictions are required before registration. And Michigan continues to require registration for consensual sex among teenagers if the age difference is greater than four years....
Michigan legislators are reviewing [the recent federal court] ruling and considering reforming the laws to make them compliant. Some, though, think tougher laws are in order. And they dismiss critics who say the registries cause unnecessary misery to those who have already served their sentences. "I say if you do the horrible rape, or if you have sex with a child, you deserve the consequences," said state Sen. Rick Jones, who helped draft some of Michigan's sex offender registry laws.
Jones questions the research that shows sex offenders are much less likely to re-offend and that the majority of those on the registry pose no threat. "I have 31 years of experience in police work, and as a retired sheriff in Eaton County I formed some very strong opinions that the science is still not clear for pedophiles. I believe it is society's duty to keep pedophiles from children so that the temptation isn't there. So I say you need to stay a thousand feet from schools."
A 2010 study by the American Journal of Public Health, examining sex offender laws nationwide and the best way to reduce recidivism, noted: "Research to date indicates that after 15 years the laws have had little impact on recidivism rates and the incidence of sexually based crimes. " Instead, the study found, "The most significant impact of these laws seems only to be numerous collateral consequences for communities, registered sex offenders — including a potential increased risk for recidivism — and their family members."
J.J. Prescott, a law professor at the University of Michigan and a nationally recognized expert on sex offender registry laws, agrees. He has done statistical analysis of the impact the laws have on crime rates. "I believe that if a sex offender really wants to commit a crime, these laws are not going to be particularly effective at stopping him," he said, noting that there is no evidence that residency restrictions or "school safety zones" have had any positive impact on the rate of sexual assault on children, according to studies nationwide....
While his research also shows that the mere threat of having to publicly register may deter some potential offenders from committing their first crime, this effect is more than offset in states with large registries by higher levels of recidivism among those who have been convicted.
May 17, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (14) | TrackBack
After reversal of most serious charges, elderly nun and fellow peace activists released from federal prison
As reported in this AP article, headlined "3 anti-nuclear activists released from federal prison," a notable federal civil disobedience case has taken some notable new turns this month. Here are the details:
An 85-year-old nun and two fellow Catholic peace activists who vandalized a uranium storage bunker were released from prison on Saturday, their lawyer said. Attorney Marc Shapiro says Sister Megan Rice was released just hours after 66-year-old Michael Walli and 59-year-old Greg Boertje-Obed also were let out of prison.
The trio was ordered released by a federal appeals court on Friday. The order came after the 6th U.S. Circuit Court of Appeals in Cincinnati last week overturned their 2013 sabotage convictions and ordered resentencing on their remaining conviction for injuring government property at the Y-12 National Security Complex in Oak Ridge.
The activists have spent two years in prison. The court said they likely already have served more time than they will receive for the lesser charge.
On Thursday, their attorneys petitioned the court for an emergency release, saying that resentencing would take weeks if normal court procedures were followed. Prosecutors responded that they would not oppose the release, if certain conditions were met. "They are undoubtedly relieved to be returning to family and friends," said Shapiro, who represented the activists in their appeal.
Rice, Walli and Boertje-Obed are part of a loose network of activists opposed to the spread of nuclear weapons. To further their cause, in July 2012, they cut through several fences to reach the most secure area of the Y-12 complex. Before they were arrested, they spent two hours outside a bunker that stores much of the nation's bomb-grade uranium, hanging banners, praying and spray-painting slogans....
Rice was originally sentenced to nearly three years and Walli and Boertje-Obed were each sentenced to just over five years. In overturning the sabotage conviction, the Appeals Court ruled that their actions did not injure national security.
Boertje-Obed's wife, Michele Naar-Obed, said in a phone interview from her home in Duluth, Minnesota, she hoped her husband would be released from prison by Monday, which will be his 60th birthday. Naar-Obed previously served three years in prison herself for anti-nuclear protests. She said that if their protests open people's minds to the possibility of life without nuclear weapons, then "yeah, it was worth it."
Prior related posts:
- You be the judge: should guidelines be followed in federal sentencing of elderly nun and two other peace activists?
- Sentencing round two for elderly nun and two other peace activists for breaking into a federal defense facility
- After she asked for life sentence, Sister Megan Rice gets 35 months' imprisonment and her co-defendants get 62 for sabotage
May 17, 2015 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack
Friday, May 15, 2015
You be the judge: what sentence for Georgetown's video voyeur Rabbi?
This Washington Post article provides background on a notable sentencing in a DC local court today in which, as highlighted below, the prosecution and defense have radically different sentencing recommendations. Here are the details:
Sentencing for Barry Freundel, the once-influential Orthodox rabbi who pleaded guilty to secretly videotaping dozens of women as they prepared for a ritual bath, is scheduled for Friday in D.C. Superior Court. The hearing is expected to be an emotional one as many of the victims are expected to speak to Senior Judge Geoffrey Alprin on the impact of Freundel's crime on their lives.
Freundel, 64, was arrested in October on charges that he videotaped six women in the nude while he was at Kesher Israel synagogue in Georgetown. Prosecutors said a review of his computer equipment revealed that many more women had been recorded by Freundel as they prepared for the bath known as a mikvah — used as part of a purification ritual.
Freundel ultimately pleaded guilty to videotaping 52 women, and the punishment proposed by prosecutors would translate to four months for each victim. The longtime rabbi had recorded about 100 additional women, prosecutors have said, but those alleged crimes occurred outside the three-year statute of limitations. The videotaping occurred between 2009 and 2014....
On Thursday, the judge sent out a procedures memo in which he said alerted prosecutors, Freundel and his attorney and victims, as to how the hearing will be conducted. Each victim who wishes to speak will be allowed only five minutes. To ensure anonymity for the victims, each woman will be identified by an alphabetical or numerical identifier. Some victims are scheduled to fly in from Israel to speak.
Prosecutors have asked the judge to sentence Freundel to 17 years in prison. Freundel’s attorney, Jeffrey Harris, urged against prison and instead asked the judge to sentence Freundel to community service. Alprin can adopt either recommendation, or craft another punishment.
Freundel has not spoken publicly about the charges. He is also likely to speak and because he pleaded guilty, he waived his chance to appeal. In the memo his attorney wrote to the judge, Harris said Freundel “recognizes and regrets” his actions. “His conduct has brought shame upon Judaism, the synagogue he once served, his family, and himself,” Harris wrote.
Among the many interesting aspect of this sentencing is whether and how a judge ought to consider the impact of this Rabbi's crimes on those whom he served over many years as a religious leader. This prior Washington Post article, headlined "For those who revered him, D.C. rabbi’s sentencing for voyeurism will not bring closure," highlights their stories. It starts this way:
This week, a D.C. Superior Court judge is scheduled to hand down a penalty for Barry Freundel, a powerful Orthodox rabbi who for years secretly videotaped his female followers as they prepared to submerge in the mikvah, a ritual bath. But in the Orthodox world where Freundel was once a giant, the fallout of his crimes will continue unspooling.
Some of the hundreds who studied or worshiped with Freundel have stopped going to the mikvah, a ritual that is considered so important in Judaism that women are commanded to use it monthly before sharing any physical intimacy with their husbands. Others who converted with Freundel are terrified that their status as Jews will forever be in question in their law-focused communities. Some people have stopped going to synagogue. Others suffer nightmares in which they are spied upon — and feel complicit.
Tuesday, May 12, 2015
Is it unseemly I wish I could watch the Boston bombing closing arguments?
The question in the title of this post reflects my (perverse?) frustration with the absence of cameras in federal courtrooms, especially in cases in which the work of advocates seem so significant in the sentencing decision-making process. From the start of the Tsarnaev trial, I have long thought that the sentencing outcome would turn on how well the prosecution keeps the jury's focus on the horrible crime (which surely seems death-worthy) and how well the defense turns the focus to mitigating personal factors which perhaps led Tsarnaev to commit the horrible crime. I am expecting that the closing arguments would capture and encapsulate the debate over this crime, criminal and his punishment in a fascinating way. But, to my disappointment, I will only get to read accounts of the arguments rather than see and hear them directly.
For those eager for a bit of a preview, this new Boston Globe article, headlined "Lengthy, complex checklist awaits Tsarnaev jurors," explains the formal death sentencing process the jury will soon be facing:
In the end, the punishment of Dzhokhar Tsarnaev will come down to one question: Have federal prosecutors proved that the Boston Marathon bomber’s crimes were so heinous he deserves to be sentenced to death?
But before jurors weigh that singular decision they will first have to wade through a complex checklist in a lengthy verdict sheet to show that they have indeed weighed all the factors in the case — those identified by prosecutors, known as aggravating factors, as well as those presented by defense attorneys, called mitigating factors.
Legal analysts say the thoroughness of the process is meant to assure that jurors focus on relevant factors and ignore prejudicial and arbitrary circumstances in determining a defendant’s fate. “The jury has to consider the circumstances that the government says is relevant, that justifies a death sentence, and then the jury makes a reasoned, morally responsible response to that evidence,” said George Kendall, a New York lawyer who has handled hundreds of death-penalty cases. “The idea is we want to have a system of accountability.”
Unlike typical criminal cases, the jury that determined Tsarnaev’s guilt in the first phase of his trial is also tasked with deciding his punishment during this second phase of his trial. And in deciding which sentence to bestow, the jurors will weigh the aggravating factors — or reasons why Tsarnaev’s crimes were so heinous he deserves death — against the mitigating factors, or arguments that seek to explain and soften his culpability in the crimes.
The formula of arguing aggravating vs. mitigating factors in capital crimes was upheld by the US Supreme Court in 1976, in a case originating in Georgia, and it became the basis for modern federal death penalty laws. The decision ended an unofficial moratorium on the death penalty that had begun four years earlier after the Supreme Court ruled that death penalty laws were unconstitutional because they were being applied arbitrarily.
Now, under the modern application of the death penalty, jurors must consider aggravating factors and mitigating factors for each defendant — and they must record their conclusion on each of those factors on the verdict slip. They must then repeat the process for each count. Tsarnaev faces 17 charges that carry the possibility of the death penalty.
US District Judge George A. O’Toole Jr. has not released a copy of the verdict slip, but prosecutors have already identified aggravating factors in the case: That Tsarnaev intentionally sought to kill and inflict bodily injuries; that he targeted vulnerable victims, including children and spectators at the Marathon finish line; Tsarnaev has shown no remorse; the attacks were in the name of jihad, or terrorism; one of his victims was a police officer; and the attack was premeditated.
Jurors will have to be unanimous in finding that each of the aggravating factors was proven. They also must be unanimous if they choose to sentence Tsarnaev to death. A split jury would result in a life sentence.
But jurors will also vote on the defense team’s mitigating factors, and they do not have to be unanimous on each one. “The defense doesn’t have the same kind of burden, it’s the prosecutors who have the burden to prove this beyond a reasonable doubt, that death is the only appropriate sentence,” Kendall said.
Jurors will then weigh the totality of aggravating and mitigating factors before deciding on a sentence. O’Toole has already instructed jurors that choosing a sentence isn’t a matter of simple math of how many aggravating factors were proven vs. how many mitigating factors the defense presented, but a “reasoned, moral response” to the overall case. “A single mitigating factor can outweigh several aggravating factors,” O’Toole told jurors.
The defense team has not publicly disclosed the mitigating factors it will list on the verdict sheet, but they will likely draw from the themes they have sought to crystallize in the trial: That Tsarnaev was an impressionable teenager who was manipulated by a dominating older brother; that brain science shows that teenagers do not have a fully matured brain; that he came from a troubled upbringing, and was looking for guidance in a vulnerable time in his life; and that his family held to old cultural tradition that he obey the direction of his older brother....
Kendall said jurors in Tsarnaev’s case are likely to weigh each argument seriously, having sat through 27 days of testimony in both phases of the trial, and listening to more than 150 witnesses. “It’s not just paperwork,” Kendall said. “It’s after all this evidence that the decision is being based on factors the law considers prudent and right ones.”
Jurors are scheduled to hear closing arguments Wednesday morning and could begin their deliberations Wednesday afternoon.
A few prior related posts:
- Now on to the real trial: "Dzhokhar Tsarnaev Is Guilty of All 30 Counts in Boston Marathon Bombing"
- "Sister of slain MIT officer opposes death penalty for Tsarnaev"
- Parents of Boston bombers' young victims: "To end the anguish, drop the death penalty"
- Anyone have predictions for the penalty phase of the Boston Marathon bombing trial?
- As penalty phase continues, new poll reveals local disaffinity for death penalty for Boston bomber
- Will and should famed abolitionist nun, Sister Helen Prejean, be allowed to testify at Boston bombing sentencing trial?
Ohio legislators moving forward on recommended death penalty reforms
As reported in this local article, headlined "Lawmakers want to exclude mentally ill from death penalty," a number of recommendations made by a death penalty task force on which I served here in Ohio are emerging in notable bills. Here are the basics:
Killers diagnosed as “seriously mentally ill” at the time of the crime could not be executed in Ohio under proposed legislation expected to be introduced Tuesday in the Ohio Senate. If passed, the bill sponsored by Sens. Bill Seitz, R-Cincinnati, and Sandra Williams, D-Cleveland, would be a major change in Ohio, which now prohibits the execution of mentally disabled people but not the mentally ill.
Seitz and Williams have been jointly developing legislation based on recommendations from the Ohio Supreme Court Death Penalty Task Force, released in April 2014. About a dozen task force recommendations are expected to be introduced in the General Assembly.
The bill would bar execution of people who, when they committed the crime, suffered from a serious mental illness that impaired their ability to “exercise rational judgment in relation to their conduct, conform their conduct to the requirements of the law, or appreciate the nature, consequences or wrongfulness of their conduct,” according to the National Alliance on Mental Illness Ohio, which supports the legislation....
Several of the 53 inmates executed in Ohio since 1999 could possibly have been excluded under the proposed change. Wilford Berry, the first person to be executed when Ohio resumed capital punishment on Feb. 19, 1999, was considered to have mental illness with delusions. At one point, Berry said he saw the angel of death sitting with him in his prison cell.
NAMI and the Ohio Psychiatric Physicians Association wrote a letter to lawmakers seek support for the legislation. “We believe that those who commit violent crimes while in the grip of a psychotic delusion, hallucination or other disabling psychological condition lack judgment, understanding or self-control. Until such time as the U.S. Supreme Court decides on this question, the responsibility for prohibiting the execution of such individuals in Ohio rests with the Ohio General Assembly.”...
Other task force proposals to be unveiled in the legislature in the future are establishing a statewide indigent death-penalty litigation fund in the Ohio Public Defender's office; requiring certification for coroner's offices and crime labs; and prohibiting convictions based solely on uncorroborated information from a jailhouse informant.
“Callous and Cruel: Use of Force against Inmates with Mental Disabilities in US Jails and Prisons”
The title of this post is the title of this big new Human Rights Watch Report which documents worrisome use of force against prisoners with mental health problems in the United States. Here is an excerpt from the report's introduction:
Across the United States, staff working in jails and prisons have used unnecessary, excessive, and even malicious force on prisoners with mental disabilities such as schizophrenia and bipolar disorder.
Corrections officials at times needlessly and punitively deluge them with chemical sprays; shock them with electric stun devices; strap them to chairs and beds for days on end; break their jaws, noses, ribs; or leave them with lacerations, second degree burns, deep bruises, and damaged internal organs. The violence can traumatize already vulnerable men and women, aggravating their symptoms and making future mental health treatment more difficult. In some cases, including several documented in this report, the use of force has caused or contributed to prisoners’ deaths.
Prisons can be dangerous places, and staff are authorized to use force to protect safety and security. But under the US constitution and international human rights law, force against any prisoner (with mental disabilities or not) may be used only when — and to the extent — necessary as a last resort, and never as punishment.
As detailed in this report, staff at times have responded with violence when prisoners engage in behavior that is symptomatic of their mental health problems, even if it is minor and non-threatening misconduct such as urinating on the floor, using profane language, or banging on a cell door. They have used such force in the absence of any emergency, and without first making serious attempts to secure the inmate’s compliance through other means. Force is also used when there is an immediate security need to control the inmate, but the amount of force used is excessive to the need, or continues after the inmate has been brought under control. When used in these ways, force constitutes abuse that cannot be squared with the fundamental human rights prohibition against torture or other cruel, inhuman, or degrading treatment or punishment. Unwarranted force also reflects the failure of correctional authorities to accommodate the needs of persons with mental disabilities.
There is no national data on the prevalence of staff use of force in the more than 5,000 jails and prisons in the United States. Experts consulted for this report say that the misuse of force against prisoners with mental health problems is widespread and may be increasing. Among the reasons they cite are deficient mental health treatment in corrections facilities, inadequate policies to protect prisoners from unnecessary force, insufficient staff training and supervision, a lack of accountability for the misuse of force, and poor leadership.
It is well known that US prisons and jails have taken on the role of mental health facilities. This new role for them reflects, to a great extent, the limited availability of community-based outpatient and residential mental health programs and resources, and the lack of alternatives to incarceration for men and women with mental disabilities who have engaged in minor offenses.
According to one recent estimate, correctional facilities confine at least 360,000 men and women with serious conditions such as schizophrenia, bipolar disorder, and major depression. In a federal survey, 15 percent of state prisoners and 24 percent of jail inmates acknowledged symptoms of psychosis such as hallucinations or delusions.
What is less well known is that persons with mental disabilities who are behind bars are at heightened risk of physical mistreatment by staff. This report is the first examination of the use of force against inmates with mental disabilities in jails and prisons across the United States. It identifies policies and practices that lead to unwarranted force and includes recommendations for changes to end it.
Monday, May 11, 2015
"Brain Science and the Theory of Juvenile Mens Rea"
The title of this post is the title of this notable new paper by Jenny Carroll now available via SSRN. Here is the abstract:
The law has long recognized the distinction between adults and children. A legally designated age determines who can vote, exercise reproductive rights, voluntarily discontinue their education, buy alcohol or tobacco, marry, drive a car, or obtain a tattoo. The Supreme Court has repeatedly upheld such age-based restrictions, most recently constructing an Eighth Amendment jurisprudence that bars the application of certain penalties to juvenile offenders. In the cases of Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, the Court's jurisprudence of youth relies on emerging neuroscience to confirm what the parents of any teenager have long suspected: adolescents' cognitive abilities and thought processes differ from their adult counterparts. Children are different than adults.
In these rulings, the Court recognized that brain development affects the legal construct of culpability and so should affect punishment. The Court reasoned that without mature thought processes and cognitive abilities, adolescents as a class fail to achieve the requisite level of culpability demonstrated in adult offenders. As such, juveniles were categorically spared the death penalty and, in some instances, a sentence of life in prison without the possibility of parole. To date, the Court has limited the application of this principle to punishment. The logic of the Court's decisions, however, applies just as strongly to the application of substantive criminal law. Just as modern neuroscience counsels against the imposition of certain penalties on juvenile offenders, so it counsels toward a reconsideration of culpability as applied to juvenile offenders through the element of mens rea. In this paper I argue that the failure to extend this jurisprudence of youth to the mental element undermines the very role of mens rea as a mechanism to determine guilt.
You be the judge: what federal sentence for latest CIA media leaker?
As explained via this Washington Post article, headlined "Judge faces choices in sentencing CIA leaker," a federal judge in Washington DC has a tough sentencing call to make this afternoon:
The way prosecutors see it, ex-CIA officer Jeffrey Sterling is a devious malcontent who spread classified half-truths to a New York Times reporter, seriously harming national security. By defense attorneys’ telling, Sterling is a compassionate, hardworking man whose misdeeds have been greatly exaggerated.
Which account U.S. District Judge Leonie M. Brinkema believes will ultimately shape the sentence she imposes Monday on the 47-year-old Missouri man, who was convicted in January of giving away sensitive information about an operation to thwart Iran’s nuclear ambitions. The range of options she has to consider is broad.
Defense attorneys are arguing for a sentence in line with other convicted leakers — including former CIA director and retired general David Petraeus, who was sentenced last month to two years of probation and a $100,000 fine for leaking classified information to his mistress and biographer. Prosecutors are advocating a “severe” penalty, and they have noted that federal sentencing guidelines call for 19 years and seven months at the low end and 24 years and five months at the high end.
Neither side has offered a specific recommendation on prison time. Experts say a sentence approaching two decades is unlikely: The sentencing guidelines, they say, seem to be intended for spies nefariously helping foreign governments — a characterization that does not fit Sterling’s case.
Prosecutors have argued such spies are charged under a different statute, and they have noted the U.S. Sentencing Commission “has not seen fit to carve out any exception or departure for disclosing national defense information to the media or the public.”
But experts say Brinkema is likely to impose a penalty well below what the sentencing guidelines call for. “Frankly, I can’t imagine her not departing downward here,” said Dan Schwager, a former federal prosecutor now in private practice at Martin & Gitner.
But Sterling, experts say, should probably expect a tougher sentence than Petraeus, even though his defense attorneys assert that the two men are not all that different. “It’s hard to put something like that completely out of your mind. It’s hanging out there,” former federal prosecutor Randall Eliason, who teaches law at George Washington University Law School, said of Petraeus’s recent sentence. “At the same time, at the risk of sounding cliche, every case is different, and there are some significant differences — at least to me — between the cases.”
Sterling was convicted of nine criminal counts for providing New York Times reporter James Risen with classified information about the CIA operation, which involved giving faulty nuclear blueprints to Iran. Prosecutors argued Sterling was a disgruntled employee with a vendetta against the CIA because of employment grievances, and he fed Risen a misleading story with some accurate, classified details to paint the agency as inept. As as result, prosecutors argued, the United States was forced to abandon one of its few mechanisms to keep Iran’s nuclear ambitions in check.
Experts say Brinkema is likely to weigh two key factors as she assesses prosecutors’ request for a harsh sentence: Sterling’s motive, and the harm his illegal disclosures caused. Eliason said those factors might separate Sterling from Petraeus, who did not seem to have any malevolence and whose leaks never wound up in any published material. “There’s kind of this spectrum of possible conduct, and I think someone like Sterling falls somewhere in the middle,” Eliason said.
Prosecutors themselves asserted in a recent filing that Sterling’s case stood apart from other recently convicted leakers, including Petraeus; former CIA officer John Kiriakou, who revealed the name of a covert officer and was sentenced to 30 months in prison; and former State Department arms expert Stephen Jin-Woo Kim, who leaked classified information to a Fox News reporter and was sentenced to 13 months in prison....
Brinkema, though, might disagree with the government’s assessments, experts said. Schwager said that, not unlike other recent leak cases, “ego” seemed to play a key role in motivating Sterling. And the damage Sterling’s disclosures caused, Schwager said, was hard to point to explicitly — a fact that would not be lost on the judge. “She knows the difference between specific harm and speculative harm,” Schwager said.
Prior related posts:
- Should judge follow federal prosecutors' recommendation of no prison time for CIA leaker David Petraeus?
- Attorneys for another convicted CIA leaker urges judges to follow Petraeus sentencing lead
Thursday, May 07, 2015
Inspector General report highlights problems posed by aging federal prison population
As reported in this USA Today piece, headlined "Feds struggle to manage growing number of elderly inmates," a new report highlights an "old problem" in federal prisons. Here are the basics:
Aging inmates remain the fastest-growing segment of the federal prison population and authorities are struggling to manage their increasing medical care and assistance with daily living, an internal Justice Department's review found. Between 2009 and 2013, the number of inmates 50 and older grew by 25% to 30,962, while the portion of younger prisoners declined by 1%, the Justice Department's inspector general reported.
The review is part of a continuing series of examinations of the federal government's costly prison system. And while the federal Bureau of Prisons last year relaxed its policy on the release of elderly or medically compromised inmates who are 65 and older, the review found that only two inmates without medical conditions had been freed during the first year of the revised policy (August 2013 to September 2014) aimed at trimming an overall prison population of more than 200,000.
In a written response, the Justice Department said that 18 prisoners had been freed under the new compassionate release policy from August 2013 to the present. "The department is committed to continued implementation of its compassionate release program ... and it will carefully consider the inspector general's recommendation to further expand the program,'' the Justice statement read.
Largely due to increasing health care needs, the average annual cost to house older inmates (defined as 50 and over) is $24,538 or 8% more than younger prisoners. "BOP institutions do not have appropriate staffing levels to address the needs of aging inmates, and they provide limited training for this purpose,'' the inspector general's report concluded, adding that the prison facilities are "inadequate'' for those inmates with compromised mobility or other physical limitations.
The full 70+ page report, titled "The Impact of an Aging Inmate Population on the Federal Bureau of Prisons," is available at this link.
Wednesday, May 06, 2015
Now what for Frank Freshwaters, captured 56 years after walking away from Ohio honor camp in 1959?
This lengthy Washington Post article provide these amazing details of the real-life (and ready-for-TV) tale of a recently-captured fugitive who was been on the lam since the Eisenhower administration:
For a week, U.S. marshals staked out the trailer park at the swampy edge of the world. They watched as an old man with a white ponytail, glasses and beard slowly shuffled around his Melbourne, Fla., mobile home. The name on the mailbox said William Harold Cox, but the marshals knew better. After seven days of surveillance, they confronted Cox with a mug shot of a much younger man, dated Feb. 26, 1959.
“He said he hadn’t seen that guy in a long time,” said Maj. Tod Goodyear of the Brevard County Sheriff’s Office, which assisted in the stakeout. “Then he admitted it and basically said, ‘You got me.'”
As the marshals suspected, the old man was actually Frank Freshwaters, a felon on the lam for 56 years. His arrest on Monday brings to an end a half-century saga that reads like a Hollywood script, complete with a deadly crime, dramatic prison escape and a cunning trap to catch a wanted fugitive. The tale even includes a tie-in to the movie it already resembles: “The Shawshank Redemption.”
Freshwaters’s story is one of spurned second chances. Back in the summer of 1957, he was a 20-year-old kid with a full head of dark hair and a lead foot. One night in July, he was speeding through Ohio when he hit and killed a pedestrian. Freshwaters was sentenced to up to 20 years in prison only to have the sentence suspended, according to the Associated Press.
But Freshwaters squandered his good fortune. He violated probation by climbing back into the driver’s seat and was locked up in February 1959 in the Ohio State Reformatory. It would prove to be a fitting setting for Freshwaters. After its closing in 1990, the reformatory would be used as a set for “The Shawshank Redemption,” a 1994 movie about a wrongfully convicted man who escapes from prison.
Freshwaters never escaped from the reformatory, however. Instead, he secured a transfer to a nearby “honor camp,” according to the AP. It was from there that Freshwaters disappeared on Sept. 30, 1959.
The 22-year-old didn’t disappear without a trace, however. In 1975, he was arrested in Charleston, W.Va., after allegedly threatening his ex-wife. He was found hiding under a sink in his house, the AP reported. At the time, investigators said Freshwaters had fled to Florida and obtained identification and a Social Security number under the alias William Harold Cox. Then he moved to West Virginia, where he drove a mobile library for the state government and worked as a trucker.
But Freshwaters caught a second break. The governor of West Virginia refused to extradite him to Ohio. Freshwaters was freed from jail and disappeared once again.
It now appears as if he made his way down to Florida, where he continued to live under his alias, even receiving Social Security checks. Back in Ohio, meanwhile, his file gathered dust until earlier this year, when a deputy marshal reopened the 56-year-old case....
Authorities took the senior citizen into custody. During a court appearance on Tuesday, a wheelchair-bound Freshwaters waived extradition, freeing the way for him to return to Ohio and finish the up-to-18 years remaining on his manslaughter sentence. Barring another escape, he could be as old as 97 upon his release.
As far as second lives go, Freshwaters’s Florida hideout was no beachfront home in Zihuatanejo, Mexico, the location where the wrongfully convicted character Andy Dufresne settles down after escaping from Shawshank. But it was far better than an Ohio prison.
The kind reader who sent me the link to this account of the Freshwaters' story added this query: "So is it really worth it for the the state of Ohio to incarcerate an ill 79 year old rehabilitated felon for the rest of his life?"
Tuesday, May 05, 2015
"What can one prosecutor do about the mass incarceration of African-Americans?"
The question in the title of this post is the subheadline of this lengthy and timely New Yorker article authored by Jeffrey Toobin. For many reasons (as perhaps the highlights below suggest), the full article is a must-read:
Like many people in the criminal-justice system, John Chisholm, the District Attorney in Milwaukee County, has been concerned for a long time about the racial imbalance in American prisons. The issue is especially salient in Wisconsin, where African-Americans constitute only six per cent of the population but thirty-seven per cent of those in state prison. According to a study from the University of Wisconsin-Milwaukee, as of 2010 thirteen per cent of the state’s African-American men of working age were behind bars — nearly double the national average, of 6.7 per cent. The figures were especially stark for Milwaukee County, where more than half of African-American men in their thirties had served time in state prison. How, Chisholm wondered, did the work of his own office contribute to these numbers? Could a D.A. do anything to change them?
The recent spate of deaths of unarmed African-Americans at the hands of police officers has brought renewed attention to racial inequality in criminal justice, but in the U.S. legal system prosecutors may wield even more power than cops. Prosecutors decide whether to bring a case or drop charges against a defendant; charge a misdemeanor or a felony; demand a prison sentence or accept probation. Most cases are resolved through plea bargains, where prosecutors, not judges, negotiate whether and for how long a defendant goes to prison. And prosecutors make these judgments almost entirely outside public scrutiny.
Chisholm decided to let independent researchers examine how he used his prosecutorial discretion. In 2007, when he took office, the Vera Institute of Justice, a research and policy group based in New York City, had just begun studying the racial implications of the work of the Milwaukee County District Attorney’s office. Over several years, Chisholm allowed the researchers to question his staff members and look at their files. The conclusions were disturbing. According to the Vera study, prosecutors in Milwaukee declined to prosecute forty-one per cent of whites arrested for possession of drug paraphernalia, compared with twenty-seven per cent of blacks; in cases involving prostitution, black female defendants were likelier to be charged than white defendants; in cases that involved resisting or obstructing an officer, most of the defendants charged were black (seventy-seven per cent), male (seventy-nine per cent), and already in custody (eighty per cent of blacks versus sixty-six per cent of whites).
Chisholm decided that his office would undertake initiatives to try to send fewer people to prison while maintaining public safety. “For a long time, prosecutors have defined themselves through conviction rates and winning the big cases with the big sentences,” Nicholas Turner, the president of the Vera Institute, told me. “But the evidence is certainly tipping that the attainment of safety and justice requires more than just putting people in prison for a long time. Prosecutors have to redefine their proper role in a new era. Chisholm stuck his neck out there and started saying that prosecutors should also be judged by their success in reducing mass incarceration and achieving racial equality.” Chisholm’s efforts have drawn attention around the country....
Chisholm reflects a growing national sentiment that the criminal-justice system has failed African-Americans. The events in Baltimore last week drew, at least in part, on a sense there that black people have paid an undue price for the crackdown on crime. Since 1980, Maryland’s prison population has tripled, to about twenty-one thousand, and, as in Wisconsin, there is a distressing racial disparity among inmates. The population of Maryland is about thirty per cent black; the prisons and local jails are more than seventy per cent black....
Chisholm decided to move to what he calls an evidence-driven public-health model. “What’s the most effective way to keep a community healthy?” he asked. “You protect people in the first place. But then what do you do with the people who are arrested?” There are two basic models of prosecutorial philosophy. “In one, you are a case processor,” he said. “You take what is brought to you by law-enforcement agencies, and you move those cases fairly and efficiently through the system. But if you want to make a difference you have to do more than process cases.”
So Chisholm began stationing prosecutors in neighborhoods around Milwaukee. “If people view prosecutors as just the guys in the courthouse, who are concerned only with getting convictions, then you are creating a barrier,” he said. He and his team started asking themselves in every instance why they were bringing that case. “In those that were seen as minor, it was the least experienced people who were deciding whether to bring them. And these people saw that we had generally brought those cases in the past, so they went ahead with them again. But we started to ask, ‘Why are we charging these people with crimes at all?’ ”
May 5, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack
Sunday, May 03, 2015
The never-aging (and ever-costly) story of ever-aging US prison populations
Today's Washington Post has this extended front-page story about the graying of America's prison populations. This will feel like an old story to regular readers of this blog, but these prison realities will remain timely as more and more offenders "age into" the decades-long sentences that became far more common even for lesser offenses over the last quarter-century. The piece is headlined "The painful price of aging in prison: Even as harsh sentences are reconsidered, the financial — and human — tolls mount," and here are a few excerpts:
Twenty-one years into his nearly 50-year sentence, the graying man steps inside his stark cell in the largest federal prison complex in America. He wears special medical boots because of a foot condition that makes walking feel as if he’s “stepping on a needle.” He has undergone tests for a suspected heart condition and sometimes experiences vertigo. “I get dizzy sometimes when I’m walking,” says the 63-year-old inmate, Bruce Harrison. “One time, I just couldn’t get up.”...
In recent years, federal sentencing guidelines have been revised, resulting in less severe prison terms for low-level drug offenders. But Harrison, a decorated Vietnam War veteran, remains one of tens of thousands of inmates who were convicted in the “war on drugs” of the 1980s and 1990s and who are still behind bars. Harsh sentencing policies, including mandatory minimums, continue to have lasting consequences for inmates and the nation’s prison system. Today, prisoners 50 and older represent the fastest-growing population in crowded federal correctional facilities, their ranks having swelled by 25 percent to nearly 31,000 from 2009 to 2013.
Some prisons have needed to set up geriatric wards, while others have effectively been turned into convalescent homes. The aging of the prison population is driving health-care costs being borne by American taxpayers. The Bureau of Prisons saw health-care expenses for inmates increase 55 percent from 2006 to 2013, when it spent more than $1 billion. That figure is nearly equal to the entire budget of the U.S. Marshals Service or the Bureau of Alcohol, Tobacco, Firearms and Explosives, according to the Justice Department’s inspector general, who is conducting a review of the impact of the aging inmate population on prison activities, housing and costs....
“Prisons simply are not physically designed to accommodate the infirmities that come with age,” said Jamie Fellner, a senior advisor at Human Rights Watch and an author of a report titled “Old Behind Bars.”
“There are countless ways that the aging inmates, some with dementia, bump up against the prison culture,” she said. “It is difficult to climb to the upper bunk, walk up stairs, wait outside for pills, take showers in facilities without bars and even hear the commands to stand up for count or sit down when you’re told.”
For years, state prisons followed the federal government’s lead in enacting harsh sentencing laws. In 2010, there were some 246,000 prisoners age 50 and older in state and federal prisons combined, with nearly 90 percent of them held in state custody, the American Civil Liberties Union said in a report titled “At America’s Expense: The Mass Incarceration of the Elderly.”
On both the state and federal level, the spiraling costs are eating into funds that could be used to curtail violent crime, drug cartels, public corruption, financial fraud and human trafficking. The costs — as well as officials’ concerns about racial disparities in sentencing — are also driving efforts to reduce the federal prison population.
For now, however, prison officials say there is little they can do about the costs. Edmond Ross, a spokesman for the Bureau of Prisons, said: “We have to provide a certain level of medical care for whoever comes to us.”
A few (of many) recent and older related posts:
- Examining the sources of an ever-aging US prison population
- New major report documents costs and concerns with aging prison populations
- Big new ACLU report highlights the high cost of high numbers of elderly prisoners
- "Aging Prisoners, Increasing Costs, and Geriatric Release"
- What should Florida and other states do with all their old sex offenders?
- Are all states going to need to create old-age prisons?
- The high costs of an aging prison population
- The story of prisons becoming nursing homes in Virginia
- "Frail and Elderly Prisoners: Do They Still Belong Behind Bars?"
Saturday, May 02, 2015
"Re-Examining Juvenile Incarceration: High cost, poor outcomes spark shift to alternatives"
The title of this post is the title of this notable issue brief released this past week by Pew's Public Safety Performance Project. Here is how the document starts and concludes:
A growing body of research demonstrates that for many juvenile offenders, lengthy out-of-home placements in secure corrections or other residential facilities fail to produce better outcomes than alternative sanctions. In certain instances, they can be counterproductive. Seeking to reduce recidivism and achieve better returns on their juvenile justice spending, several states have recently enacted laws that limit which youth can be committed to these facilities and moderates the length of time they can spend there. These changes prioritize the use of costly facilities and intensive programming for serious offenders who present a higher risk of reoffending, while supporting effective community-based programs for others....
In recent years, a number of states have passed laws excluding certain juveniles from being placed in state custody, reflecting a growing recognition of the steep cost and low public safety return of confining juveniles who commit lower-level offenses in residential facilities. Some states also have modified the length of time juveniles spend in custody. Because research shows little to no recidivism reduction from extended stays for many offenders, a handful of states have adopted mechanisms to evaluate youth placements and shorten them when appropriate.
Seventh Circuit, in 6-5 en banc ruling, allows new federal 2241 review of Atkins claim based on new evidence
If you love to spend a spring weekend thinking through the statutes and policies that govern federal collateral review of federal death sentences — and really, who doesn't? — then the en banc Seventh Circuit has a great ruling for you. Dividing 6-to-5, the Seventh Circuit in Webster v. Daniels, No. 14-1049 (7th Cir. May 1, 2015) (available here), decided that a federal death row inmate was "not barred as a matter of law from seeking relief under section 2241" to continue to pursue based on new evidence his claim that he was "so intellectually disabled that he is categorically ineligible for the death penalty under Atkins and Hall."
This following paragraph from the dissent authored by Judge Easterbrook highlights why this ruling took the majority many pages to reach and is controversial:
Whether Webster is “retarded” was the principal issue at his trial and sentencing. He raised his mental shortcomings as a mitigating factor, and four jurors found that they mitigate his culpability, but the jury still voted unanimously for capital punishment. The sentencing hearing spanned 29 days, with abundant evidence. The district judge found that Webster is not retarded within the meaning of §3596(c) and sentenced him to death. The Fifth Circuit affirmed on the merits and later affirmed a district court’s decision denying a petition under §2255 addressed to retardation. If Webster is retarded, he is ineligible for the death penalty. Whether he is retarded has been determined after a hearing, collateral review under §2255, and multiple appeals. What Webster now wants is still another opportunity to litigate that question. The majority gives Webster that opportunity in a new district court and a new circuit, setting up a conflict among federal judges. Section 2255 is designed to prevent that, and prudential considerations also militate against one circuit’s disagreeing with another in the same case.
Friday, May 01, 2015
"Baltimore prosecutor charges police with murder, manslaughter in death of Freddie Gray"
The title of this post is the current headline of this notable breaking FoxNews report. Here are the basics:
Prosecutors charged six Baltimore police officers Friday with crimes ranging from murder to assault in the death of Freddie Gray, the 25-year-old black man whose death last month of injuries apparently suffered in police custody touched off peaceful protests that degenerated into a night of rioting, looting and chaos Monday.
State's Attorney Marilyn Mosby, speaking at a Friday news conference, blasted the six police involved in Gray's arrest on April 12, during which he suffered a broken neck that proved fatal a week later. Mosby said the police had no basis for arresting Gray, who police said avoided eye contact and was carrying a switchblade. One police officer, identified as Caesar Goodson, 45, was charged with second-degree murder, while others were charged with crimes including manslaughter and assault.
"No one is above the law," declared Mosby, who said she comes from three generations of law enforcement and has been on the job for four months.
Recent related posts:
- Inspiring remarks from the new Attorney General in DC ... while Baltimore burns to the north
- David Simon connects Baltimore's woes to the drug war
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.
Should judge follow federal prosecutors' recommendation of no prison time for CIA leaker David Petraeus?
The 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,
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.”
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.
Thursday, April 16, 2015
Notable defendant gets 10 years after 10th DWI in Texas as part of plea deal
This 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."
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.
Tuesday, April 14, 2015
Tough (and record-long) sentences for cheating Atlanta school administrators
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.
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.
Sunday, April 12, 2015
Considering one defendant getting a second look due to Miller retroactivity
One 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:
- Florida defendant gets LWOP sentence for mere possession of (lots of) kiddie porn
- "Life Sentence for Possession of Child Pornography Spurs Debate Over Severity"
Thursday, April 09, 2015
"Reality check: Is sex crime genetic?"
The 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.
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?
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....
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.”
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.
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.
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."
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.
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 (1) | TrackBack
Is it constitutional to "offer" juve offenders the alternative sentence of writing a bible essay?
The question in the title of this post is prompted by this local article about a novel alternative sentence being utilized by a judge in Mississippi. Here are the details:
Dozens of tickets are written every month in South Mississippi for minors in possession of alcohol. It is an offense that could not only cost the person charged hundreds of dollars, it could also cause them to lose their license for up to 90 days, and even worse; it can follow them the rest of their lives. "If you enter a plea of guilty, it's on your record," Harrison County Justice Court Judge Albert Fountain said.
Fountain knows everyone makes mistakes, and instead of letting one mistake follow a young person for the rest of their life, the judge has come up with an alternative way to sentence children charged with minor in possession of alcohol. "A 1,000 word essay on The Book of Revelations and also the effects from drinking alcohol," Fountain said. "I don't force them to do that. It's their choice. That's just my recommendation. They can write it on anything they want to."
He also takes their license for 10 days and places them on a 90 day non-reporting probation with conditions of good behavior. "It just felt like I had to do something different," Fountain said. "There is more to it than just sentencing someone, and I felt I needed to make a difference."
While he knows it can be considered controversial, Fountain feels it is right. "Separation of church and state is a big topic, and I understand some people have their beliefs, but I think what's wrong with the country today is that we've taken Christ and God out of everything," Fountain said.
The judge has been sentencing children this way for the past eight to 10 years. He said about one in every 20 children choose to write an essay on something other than The Book of Revelations. "Some of the things I have gotten from them is that the fear, really reading the essays, what they ought to face in the future if they don't do the right things," Fountain said. "It's pleasing to me to see that."
Wednesday, March 25, 2015
You be the judge: what federal sentence for modern sheriff playing Robin Hood?
In the legend of Robin Hood, the Sheriff of Nottingham is the tale's primary villain. But this sentencing story out of South Carolina raises the question of what federal sentence ought to be given to a local sheriff who was committing fraud as a kind of modern Robin Hood. The press report is headlined "Convicted Williamsburg sheriff asks for sentencing leniency," and here are the details:
The convicted former sheriff of Williamsburg County should be sentenced to less than the three years in prison recommended by federal officials because he succeeded despite a troubled upbringing and is being treated for a painkiller addiction, his lawyer said.
Ex-sheriff Michael Johnson faces a judge Wednesday to learn his fate after a federal jury convicted him in September of mail fraud. Prosecutors said Johnson created hundreds of fake police reports for a friend who ran a credit repair business so people could claim their identities were stolen and get out of credit card debt. The sentencing recommendation for Johnson is 30 months to 37 months in prison, according to court papers filed this week.
Johnson's attorney said that is too harsh for a man with no criminal record who cooperated with authorities. Johnson's request asks for a lesser sentence, but is not specific. Johnson has suffered from depression and anxiety the past four years. He also has migraines, high blood pressure and insomnia, lawyer Deborah Barber said in court papers.
The former sheriff also was raised in a broken home, saw his mother abused by a boyfriend and left at age 17 to relieve her of financial burden, Barber said. "He resided in a poverty-stricken area in Kingstree, South Carolina, with the family not having enough money to adequately survive," Barber wrote....
Johnson joined the Williamsburg County Sheriff's Office in 1997, two years after graduating high school and rose to chief deputy, becoming sheriff in April 2010 when the former sheriff, Kelvin Washington, was named U.S. Marshal for South Carolina.
He is one of nine sheriffs in South Carolina's 46 counties to be charged or investigated while in office since 2010. Seven have pleaded guilty or been convicted, and another died while under investigation. Only two of those sheriffs so far have been sentenced to prison.
Intriguingly, this long earlier article explains some of the details of the fraud, and it suggests that sheriff Johnson may not have made any money from the scheme designed to help people to (falsely) improve their credit rating. I am disinclined to assert that sheriff Johnson is as noble or heroic as Robin Hood, but it does seem like his fraud involved trying to help some folks down on their luck by pulling a fast one on the (big bad monarchy?) credit companies. Given that the federal sentencing guidelines still call for a prison term of at least 2.5 years, I am now wondering what the real Robin Hood might have been facing in a federal fraud guideline range if he were facing sentencing today.
March 25, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2) | TrackBack
Tuesday, March 24, 2015
Should prison terms end once criminals seem "too old" to recidivate?
The question in the title of this post is prompted by this intriguing recent New York Times piece headlined "Too Old to Commit Crime?". Here are excerpts:
Dzhokar TsarnaevV is facing the death penalty or life in prison for the Boston Marathon bombing. But what if, instead, the maximum prison sentence were just 21 years? That was the sentence that Anders Behring Breivik received in 2012 after killing 77 people, most of them teenagers attending a summer program, in Norway in 2011. It was the harshest sentence available. That doesn’t mean Mr. Breivik will ever walk free. Judges will be able to sentence him to an unlimited number of fiveyear extensions if he is still deemed a risk to the public in 2033, when he is 53.
The idea of a 21-year sentence for mass murder and terrorism may seem radically lenient in the United States, where life without parole is often presented as a humane alternative to the death penalty. Yet in testimony last week to a congressional task force on reforming the federal prison system, Marc Mauer, the director of the Sentencing Project, an advocacy group, suggested exactly that approach. He made the case for a 20-year cap on federal prison terms with an option for parole boards or judges to add more time if necessary to protect the public. Such a policy would “control costs” in a system that is now 40 percent over capacity, Mr. Mauer told the task force, and would “bring the United States more in line with other industrialized nations.”
This proposal has little chance of becoming law. But a compelling case can be made for it nonetheless. Research by American social scientists shows that all but the most exceptional criminals, even violent ones, mature out of lawbreaking before middle age, meaning that long sentences do little to prevent crime....
Some crimes are simply too physically taxing for an older person to commit. Regardless of why offenders age out of trouble, American sentencing practices are out of whack with the research on criminal careers. Between 1981 and 2010, the average time served for homicide and nonnegligent manslaughter increased threefold, to almost 17 years from five years. Over 10 percent of federal and state inmates, nearly 160,000 people, are serving a life sentence, 10,000 of them convicted of nonviolent offenses. Since 1990, the prison population over the age of 55 has increased by 550 percent, to 144,500 inmates. In part because of this aging population, the state and federal prison systems now spend some $4 billion annually on health care.... [A] sentence that outlasts an offender’s desire or ability to break the law is a drain on taxpayers, with little upside in protecting public safety or improving an inmate’s chances for success after release. Mr. Mauer’s proposal for a 20-year sentence cap, applied retroactively, would free 15 percent of federal prisoners — some 30,000, except for those few whom judges or parole boards might deem unfit to re-enter society.
This is much more aggressive than the Smarter Sentencing Act, a bipartisan proposal in Congress which would lower mandatory minimum sentences only for nonviolent drug crimes. Both the House and Senate versions of the bill keep mandatory minimum sentences of 20 or 25 years for third-time drug offenders, and most of the bill’s provisions would not benefit current inmates. Of course, for many Americans the prison system is not only about preventing crime by getting criminals off the street, but also about punishment. Long sentences send a clear message that certain acts are unacceptable. Some conservatives who support sentencing reform say that Mr. Mauer’s proposal goes too far, offering a one-size-fits-all leniency to even violent offenders.
Mr. Mauer responds that given the immense scale and cost of incarceration, “modest reforms” would be insufficient. “How much punishment is enough?” he asked. “What are we trying to accomplish, and where does redemption come into the picture?”
March 24, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack
Monday, March 23, 2015
"A Commentary on Statistical Assessment of Violence Recidivism Risk"
The title of this post is the title of this timely paper by Peter Imrey and A. Philip Dawid now available via SSRN. The piece, as evidenced simply by the abstract, seems quite technical. But it seems that the piece is making an especially important technical point. Here is the abstract:
Increasing integration and availability of data on large groups of persons has been accompanied by proliferation of statistical and other algorithmic prediction tools in banking, insurance, marketing, medicine, and other fields (see e.g., Steyerberg (2009a;b)). Controversy may ensue when such tools are introduced to fields traditionally reliant on individual clinical evaluations. Such controversy has arisen about "actuarial" assessments of violence recidivism risk, i.e., the probability that someone found to have committed a violent act will commit another during a specified period.
Recently Hart et al. (2007a) and subsequent papers from these authors in several reputable journals have claimed to demonstrate that statistical assessments of such risks are inherently too imprecise to be useful, using arguments that would seem to apply to statistical risk prediction quite broadly. This commentary examines these arguments from a technical statistical perspective, and finds them seriously mistaken in many particulars. They should play no role in reasoned discussions of violence recidivism risk assessment.
March 23, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (0) | TrackBack
Supreme Court takes up a replacement juve LWOP retroactivity case from Louisiana
As reported in this AP piece, the US Supreme Court this morning found a replacement for the prior resolved case (Toca) dealing with the retroactivity of its 2012 Miller decision. Here are the basics:
The Supreme Court is adding a new case to decide whether its 3-year-old ruling throwing out mandatory life in prison without parole for juveniles should apply to older cases. The court was scheduled to hear arguments in a case from Louisiana in late March, but the state released inmate George Toca after 30 years in prison.
The justices on Monday said they would consider a new Louisiana case involving a man who has been held since 1963 for killing a sheriff's deputy in Baton Rouge. Henry Montgomery was a 17-year-old 10th grader who was playing hooky from school when he shot Deputy Charles Hurt at a park near the city's airport. The officer and his partner were looking to round up truants.
The case will be argued in the fall.... The case is Montgomery v. Louisiana, 14-280.
Some SCOTUS-related posts on the prior Toca case and Miller retroactivity:
- Supreme Court grants cert to (finally!?!) resolve whether Miller applies retroactively
- George Toca now a free man ... and SCOTUS now lacks a live Miller retroactivity case
- The back-story of George Toca's case (and its impact on other juve LWOPers)
- "Elevating Substance Over Procedure: The Retroactivity of Miller v. Alabama Under Teague v. Lane"
- Examining "sentence finality" at length in new article and series of posts
Saturday, March 21, 2015
"Sentencing Enhancement and the Crime Victim's Brain"
The title of this post is the title of this interesting new article now available via SSRN authored by Francis X. Shen. Here is the abstract:
Criminal offenders who inflict serious bodily injury to another in the course of criminal conduct are typically sentenced more harshly than those who do not cause such injuries. But what if the harm caused is “mental” or “psychological” and not “physical”? Should the sentencing enhancement still apply? Federal and state courts are already wrestling with this issue, and modern neuroscience offers new challenges to courts’ analyses. This Article thus tackles the question: In light of current neuroscientific knowledge, when and how should sentencing enhancements for bodily injury include mental injuries?
The Article argues that classification of “mental” as wholly distinct from “physical” is problematic in light of modern neuroscientific understanding of the relationship between mind and brain. There is no successful justification for treating mental injuries as categorically distinct from other physical injuries. There is, however, good reason for law to treat mental injuries as a unique type of physical injury. Enhancement of criminal penalties for mental injuries must pay special care to the causal connection between the offender’s act and the victim’s injury. Moreover, it is law, not science, that must be the ultimate arbiter of what constitutes a sufficiently bad mental harm to justify a harsher criminal sentence, and of what evidence is sufficient to prove the mental injury.
Thursday, March 19, 2015
Sentencing judgment days this week in federal court for two pols behaving very badly
Two prominent politician faced federal sentencing for two distinct crimes this week. Here are headlines reflecting the outcome for each on judgment day along with links to stories providing the details:
Florida Supreme Court decides unanimously that Miller applies retroactively to all mandatory juve LWOP sentences
As reported in this local piece, the "Florida Supreme Court unanimously ruled Thursday that all of the state’s juvenile killers who received automatic sentences of life in prison must be resentenced under a law passed in 2014." Here is more:
The long-awaited ruling answers the question of whether the U.S. Supreme Court’s 2012 decision in Miller v. Alabama, which effectively banned automatic life sentences for juvenile killers, applies retroactively. An estimated 250 state prisoners, 17 of them from Lee and Collier counties, are serving life sentences for murders committed before they turned 18.
Under Florida’s 2014 law, passed to conform with the U.S. Supreme Court decision, only juveniles who committed homicides after July 2014 were subject to a revised sentencing structure, which required a judge to consider several factors before determining a prison term. For about 20 years before the law’s passage, Florida mandated a life sentence for juveniles convicted of first-degree murder.
Since the state’s law was passed, Florida trial and appeal courts have grappled with whether juveniles who killed before July 2014 and received automatic life sentences should also receive the same consideration. After the state’s five appeals courts gave conflicting opinions, the Florida Supreme Court weighed in Thursday.
The seven justices found that the U.S. Supreme Court’s ban “constitutes a development of fundamental significance,” the standard used to determine whether changes to Florida law apply retroactively. “The patent unfairness of depriving indistinguishable juvenile offenders of their liberty for the rest of their lives, based solely on when their cases were decided, weighs heavily in favor of applying the (U.S.) Supreme Court’s decision in Miller retroactively,” Justice Barbara J. Pariente wrote in the opinion....
Under Florida’s new law, juveniles can still receive life behind bars. That sentence, however, must be made after a judge considers several factors, including the juvenile’s personal background, maturity and criminal history. At a minimum, a juvenile convicted of first-degree murder who committed the homicide must receive 40 years in prison.
The full ruling in Falcon v. Florida, No. SC13-865 (Fla. March 19, 2015), is available at this link.
Monday, March 16, 2015
"How Prison Stints Replaced Study Hall: America’s problem with criminalizing kids."
The title of this post is the headline of this lengthy new Politico magazine article. Here are excerpts from the start of the piece:
Police officers in Meridian, Mississippi, were spending so much time hauling handcuffed students from school to the local juvenile jail that they began describing themselves as “just a taxi service.” It wasn’t because schools in this east Mississippi town were overrun by budding criminals or juvenile superpredators — not by a long shot. Most of the children were arrested and jailed simply for violating school rules, often for trivial offenses....
For many kids, a stint in “juvie” was just the beginning of a never-ending nightmare. Arrests could lead to probation. Subsequent suspensions were then considered probation violations, leading back to jail. And suspensions were a distinct possibility in a district where the NAACP found a suspension rate that was more than 10 times the national average.
In 2012, the U.S. Department of Justice filed suit to stop the “taxi service” in Meridian’s public schools, where 86 percent of the students are black. The DOJ suit, still unresolved, said children were being incarcerated so “arbitrarily and severely as to shock the conscience.” We should all be shocked.
The reality, though, is that Meridian’s taxi service is just one example of what amounts to a civil rights crisis in America: a “school-to-prison pipeline” that sucks vulnerable children out of the classroom at an alarming rate and funnels them into the harsh world of police, courts and prison cells.
For many children, adolescent misbehavior that once warranted a trip to the principal’s office — and perhaps a stint in study hall — now results in jail time and a greater possibility of lifelong involvement with the criminal justice system. It should surprise no one that the students pushed into this pipeline are disproportionately children of color, mostly impoverished, and those with learning disabilities.
The story of Meridian is more than an example of school discipline run amok. It’s a key to understanding how the United States has attained the dubious distinction of imprisoning more people — and a larger share of its population — than any other country. It’s one reason why the United States today has a quarter of the world’s prisoners—roughly 2.2 million people — while representing just 5 percent of its total population. And it helps explain an unprecedented incarceration rate that is far and away the highest on the planet, some five to 10 times higher than other Western democracies....
The origins of the school-to-prison pipeline can be traced to the 1990s when reports of juvenile crime began to stoke fears of “superpredators” — described in the 1996 book Body Count as “radically impulsive, brutally remorseless youngsters” with little regard for human life. The superpredator concept, based on what some critics have derided as junk science, is now known to be a complete myth. Former Princeton professor and Bush administration official John DiIulio, the Body Count co-author who coined the term, admitted to The New York Times in 2001 that his theory of sharply rising juvenile violence had been wrong.
But the damage had been done. As these fears took root and mass school shootings like the one at Columbine made headlines, not only did states enact law laws to increase punishment for juvenile offenders, schools began to adopt “zero-tolerance” discipline policies that imposed automatic, pre-determined punishments for rule breakers.
At the same time, states across America were adopting harsh criminal laws, including long mandatory prison sentences for certain crimes and “three strikes” laws that led to life sentences for repeat offenders. The term “zero tolerance” was, in fact, adopted from policing practices and criminal laws that focused on locking up minor offenders as a way to stem more serious crime.
Somewhere along the way, as local police departments began supplying on-duty “school resource officers” to patrol hallways, educators began to confuse typical adolescent misbehavior with criminality. Schools became, more or less, a part of the criminal justice system. With police officers stalking the halls and playgrounds, teachers and principals found it easy to outsource discipline. Almost overnight, a schoolyard scuffle could now land a kid in a jail cell.
The results have been disastrous.
Wednesday, March 11, 2015
"Trial Defense Guidelines: Representing a Child Client Facing a Possible Life Sentence"
The title of this post is the title of this notable new report/guidelines from The Campaign for Fair Sentencing of Youth . As this webpage notes, these new guidelines draw from the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases in the capital context and the NJDC National Juvenile Defense standards in the juvenile court context. Here is the introduction to the report/guidelines:
The objective of these guidelines is to set forth a national standard of practice to ensure zealous, constitutionally effective representation for all juveniles facing a possible life sentence (“juvenile life”) consistent with the United States Supreme Court’s holding in Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012) that trial proceedings “take into account how children are different, and how those differences counsel against irrevocably sentencing [children] to a lifetime in prison.”
The representation of children in adult court facing a possible life sentence is a highly specialized area of legal practice, therefore these guidelines address the unique considerations specific to the provision of a zealous trial defense. These guidelines set forth the roles and responsibilities of the defense team for the duration of a trial proceeding and outline child-specific considerations relevant to pre-trial, trial, and sentencing representation. Direct appeal and collateral review are not explicitly addressed in these guidelines.
These guidelines are premised on the following foundational principles:
children are constitutionally and developmentally different from adults;
children, by reason of their physical and mental immaturity, need special safeguards and care;
children must not be defined by a single act;
juvenile life defense is a highly specialized legal practice, encompassing the representation of children in adult court as well as the investigation and presentation of mitigation;
juvenile life defense requires a qualified team trained in adolescent development;
juvenile life defense requires communicating with clients in a trauma-informed, culturally competent, developmentally and age-appropriate manner;
juvenile life defense is based on the client’s expressed interests, informed by meaningful and competent child client participation;
juvenile life defense counsel must ensure that child clients and their families are treated with dignity and respect;
juvenile life defense counsel must ensure that victims’ families are treated with dignity and respect;
juvenile life defense counsel must litigate for a presumption against life sentences for children; and
juvenile life defense counsel must litigate to ensure a meaningful individualized sentencing determination, in which defense counsel is able to fully and effectively present mitigation to the court.
Monday, March 09, 2015
What is SCOTUS reviewing in Hurst as it considers Florida's capital sentencing process?
As noted in this post, this morning the US Supreme Court today finally decided to decide whether Florida's capital sentencing scheme is constitutional in light of Apprendi and Ring. But, as this new SCOTUSblog post about the cert grant spotlights, it actually is not entirely clear just what the Supreme Court has decided to decide:
The Florida death penalty case now up for review involves Timothy Lee Hurst of Pensacola, who faces a death sentence for the 1998 murder of a woman who was an assistant manager at a Popeye’s fast-food restaurant where Hurst also worked.
Hurst’s public-defender lawyers asked the Court to rule on two broad questions: one about the jury’s role when an accused individual claims a mental disability, and one about the jury’s role in the death-sentencing process, including an issue of whether its verdict must be unanimous. (His jury split seven to five in recommending death.) The second question was based on a claim that Florida courts fail to follow a 2002 Supreme Court decision on death sentencing, Ring v. Arizona.
In agreeing to rule on the case, the Court rewrote the question it will consider in an apparent attempt to simplify it: whether Florida’s approach to death sentencing violates either the Sixth Amendment or the Eighth Amendment “in light of this Court’s decision in Ring v. Arizona.”
Because the Ring decision is all about the Sixth Amendment, and the role of the jury in deciding whether a murder was committed in an “aggravated” form, it is not clear just what the Court had in mind in linking an Eighth Amendment issue to the Ring precedent. It could be, although this was not plain from the order, that the Court is looking at Hurst’s case on Eighth Amendment grounds on his claim of mental disability, on the lack of jury unanimity, and on the general fairness of a death sentence for this particular individual. Presumably, that will become clearer as the briefs are filed in the case in coming months.
Helpfully, this extended post at Crime & Consequences reviews some of the legal background and possible implication of the Hurst case, which includes these observations:
The U.S. Supreme Court only rarely specifies the question for review itself and that often occurs when the Court wants the latitude to consider overruling prior precedent. This case is on direct appeal from a re-sentencing trial at which Hurst challenged the constitutionality of Florida's capital sentencing procedure. Therefore, there is no limitation on the Court's authority to create new law in this case. The Florida capital sentencing procedure is substantially different from the procedure employed by most death penalty States. Therefore, the Court's ruling in this case is not likely to affect death penalty cases in those other States. However, we can expect that attorneys representing prisoners in capital cases will argue the contrary.
Because of the maelstrom of potential legal issues raised by this particular Florida case, I am not sure what to expect from the Justices. I am sure any and everyone who does not like how Florida does its capital sentencing (including the nearly 400 murderers currently on Florida's death row) may be inclined to present varied constitutional arguments to SCOTUS to urge a reversal of the death sentence in this intriguing new case.
Profile of one (of thousands) of the juve LWOP stories full of post-Miller uncertainty
Thanks to How Appealing, I saw this interesting article from North Carolina about the history of an offender long serving an LWOP sentence for a juvenile murder who still awaits resolution of whether he can benefit from the Supreme Court's work three years ago in Miller v. Alabama. The piece is headlined "Convicted of murder at 16, Anthony Willis is hoping a Supreme Court decision will overturn his sentence," and merits a full read for those following post-Miller developments closely. Here is an excerpt from the lengthy piece:
[I]f nothing else, prison gives a man time to reflect. Willis slowly came to realize — even though he was expected to die behind bars — that he needed his life to matter. The best way to do that, he decided, was to lean on God and to educate himself. After earning his GED, Willis began taking anger- and stress-management classes and attending prison fellowship seminars.
He earned back-to-back-to-back associate degrees from Western Piedmont Community College and a bachelor's degree from California Coast University. His mother attended his graduation ceremony for his first associate degree. "That's my baby," Brenda Willis yelled as Willis walked down the aisle. She was so proud of her son.
That's a big part of Willis' motivation today. He wants his mother to know that his actions as a teenager were never her fault.... Now 35, his appearance and demeanor are nothing like one might expect from a man who has spent slightly more than half his life in prison. Most of the other prisoners call him Smiley, a nickname that has transferred with him from prison to prison.
Thin, polite, boyish and articulate, Willis seems to have been transformed by prison into a man who has gained respect by learning to stop following the herd. Willis said he has found comfort in the Lord and teaches those virtues to other prisoners. He said he regularly leads prison fellowship seminars and takes pride in his role as a mentor and recreational leader. Willis said he often counsels new prisoners almost as soon as they get off the bus. Most mistake his optimism for someone who is about to get released — anyone but a lifer....
Willis acknowledges that serving a life sentence isn't easy. "It's hard to hold onto hope in here," he said. "It's like holding onto a ledge by your fingertips." But he endures the best he can, buoyed by his faith, his new-found purpose in life and a U.S. Supreme Court ruling called Miller vs. Alabama.
On June 25, 2012, the Supreme Court ruled that mandatory life in prison without parole for people who committed murder as juveniles constitutes cruel and unusual punishment. The ruling effectively struck down laws in 28 states, including North Carolina....
The court did not bar mandatory life sentences without parole in all juvenile homicide cases. It said lower courts could impose such a sentence only after examining mitigating factors, including family environment, the circumstances of the offense and the possibility of rehabilitation. But the court didn't make its order retroactive, so it does not apply to Willis and 87 other murderers convicted as juveniles and now serving life sentences in North Carolina.
In December, the Supreme Court agreed to consider whether the Miller ruling should be made retroactive in a Louisiana murder. But the case was resolved at the state level, leaving no issue for the federal court to hear. So making Miller retroactive remains in limbo, at least in North Carolina.
Less than two weeks after the Miller ruling, North Carolina's General Assembly responded by approving a law that requires a parole review after a juvenile murderer has spent a minimum of 25 years in prison. But again, the law applies only to sentences handed down after the Miller ruling. Courts in at least nine states — including South Carolina — have ruled that the ruling will be applied retroactively. Five other states have ruled that the decision is not retroactive. North Carolina's appellate courts continue to consider the issue.