Sunday, March 29, 2015

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

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

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

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

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

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

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

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

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

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

Saturday, March 28, 2015

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

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

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

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

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

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

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

Thursday, March 26, 2015

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

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

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

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

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

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

March 26, 2015 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, March 25, 2015

You be the judge: what federal sentence for modern sheriff playing Robin Hood?

ImagesIn 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:

March 23, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

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.

March 21, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

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:

March 19, 2015 in Offender Characteristics, White-collar sentencing | Permalink | Comments (1) | TrackBack

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.

March 19, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

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.

March 16, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

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.

March 11, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

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.

March 9, 2015 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

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.

March 9, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, March 05, 2015

Should there be a presumptive incarceration "retirement age" to deal with the graying of prisons?

The question in the title of this post is my latest provocative (but very serious) thought about how to deal with the aging US prison population and the costs that incarcerating the elderly places on taxpayers.  This thinking is prompted today by this new commentary from New York titled "Address the Graying of Prisons," which makes these points:  

In New York, roughly 17 percent of the state's prison population is elderly. By 2030, the aging are expected to account for one third of the prison population. This large-scale incarceration of the elderly is enormously expensive. The United States spends over $16 billion annually on incarceration for individuals aged 50 and older — approximately double the cost of incarcerating a younger person.

But cost is not the only reason to address this crisis. Prisons were not designed to meet the basic needs of elderly individuals. Wheelchair inaccessibility and bunk beds make daily life difficult for people with mobility impairment; cognitive impairments and hearing loss exacerbate the challenges. When the health ward proves incapable of providing care, prisoners must be cared for at an outside hospital — with expensive around-the-clock guards.

Weigh this against the following fact: many "long-termers" are so old, sick, and frail that they pose virtually no safety risk to the public, with a national recidivism rate of only 4 percent for those over 65.

But, if we release more of the aging, as we should (of the 2,730 requests for compassionate release in New York between 1992-2002, only 381 were granted), we will need to address the dearth of community-based services to support them. The majority of those released after serving long sentences face fading social and family networks, a struggle to access health care and housing, and a lack of skills required to live independently. Nursing homes often won't take them, they are ineligible for Medicare while on parole, and many haven't paid enough into Social Security to receive benefits....

And the solution cannot be left only to those of us in criminal justice and corrections. We need the fields of gerontology, mental health treatment and senior services, working together to develop better solutions to the complex, multifaceted problems faced by aging formerly incarcerated individuals....

Here in New York, the Osborne Association will soon begin a pilot project to provide discharge planning and case management support for elders released to New York City. It is a start. But ultimately, any systemic and sustained change is contingent upon our collective willingness to deal with the looming crisis of a graying prison population in ways that reduce costs and improve lives while recognizing the inherent dignity of all people.

Given that the recidivism rate for those over 65 is so low (and I suspect especially lower for elderly prisoners without a long criminal record and not previously involved in serious sex or drug offenses), why not a national policy that any and all prisoners who have already served a certain number of years in prison and reach 65 ought to be presumptively considered for immediate parole? We could have data-driven risk-assessment instruments that help officials decide which older offenders are likely to pose no real safety risks at their old ages.

Among other benefits, a national "presumptive prison release at 65 scheme" could and would bring all jurisdictions in compliance with the Eighth Amendment rules set forth in Graham and Miller. In addition, both offenders and victims (and lawyers and judges) could/would all know that "life" sentences really mean serving for sure in prison until the offender is 65 at which point the offender would have a chance to seek release.  And victims and others could plan and gear up to explain why they would oppose or support release at that date certain.

Especially in light of improving life expectancies, even for those imprisoned, I could image tweaking this proposal to set the presumptive prison retirement age at 70 or even 75.  But, whatever the selected retirement age, I think our sentencing and prison systems might be improved by having some national presumptive norms about being "too old to jail."   Indeed, just as many employers and employees believe it is not just or efficient to expect elderly individuals to work full-time until they drop dead, I suspect many prison officials and prisoners may believe it is not just or efficient to expect elderly individuals to remain imprisoned full-time until they drop dead.

March 5, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (16) | TrackBack

Monday, March 02, 2015

Georgia scheduled to execute only female murderer on its death row

As reported in this AP piece, headlined "After weather delay, Georgia ready to perform rare execution of a woman," the Peach State appears poised this evening to end the life of a bad apple notable for her gender. Here are the details:

After getting a temporary reprieve when her execution was postponed because of winter weather conditions forecast to hit the state, the only woman on Georgia's death row is again set for execution Monday. Kelly Renee Gissendaner, 46, was scheduled to be executed Wednesday at the state prison in Jackson, but the Department of Corrections postponed it to Monday at 7 p.m., citing the weather and associated scheduling issues.

Gissendaner was convicted of murder in the February 1997 stabbing death of her husband, Douglas Gissendaner. Prosecutors said she plotted his death with her boyfriend, Gregory Owen.... Kelly Gissendaner repeatedly pushed Owen in late 1996 to kill her husband rather than just divorcing him as Owen suggested, prosecutors said. Acting on Kelly Gissendaner's instructions, Owen ambushed Douglas Gissendaner at the Gissendaners' home, forced him to drive to a remote area and stabbed him multiple times, prosecutors said

Owen pleaded guilty and received a life prison sentence with eligibility for parole after 25 years. He testified at Gissendaner's trial, and a jury convicted her and sentenced her to death in 1998.

The State Board of Pardons and Paroles, the only entity in Georgia authorized to commute a death sentence, on Wednesday denied Gissendaner clemency. A federal judge in Atlanta rejected a request to halt her execution, and her lawyers have appealed that decision to the 11th U.S. Circuit Court of Appeals.

If Gissendaner's execution happens, she will be the first woman executed in Georgia in 70 years. Lena Baker, a black maid, was executed in 1945 after being convicted in a one-day trial for killing her white employer. Georgia officials issued her a pardon in 2005 after six decades of lobbying and arguments by her family that she likely killed the man because he was holding her against her will. Baker was the only woman to die in the state's electric chair. P>Execution of female inmates is rare with only 15 women put to death nationwide since the Supreme Court in 1976 allowed the death penalty to resume. During that same time, about 1,400 men have been executed, according to the Death Penalty Information Center.

Prosecutors offered Gissendaner the same plea deal that was offered to Owen, but she turned it down. Post-conviction testimony from her trial lawyer, Edwin Wilson, gives some insight into why, Gissendaner's lawyers argued in a clemency petition. They quote Wilson as saying he didn't think a jury would sentence Gissendaner to death. "I guess I thought this because she was a woman and because she did not actually kill Doug," Wilson is quoted as saying, adding that he should have urged her to take the plea.

Victor Streib, a retired Ohio Northern University law professor and an expert on the death penalty for women, said it's clear that women are condemned to die far less frequently than men, but that there are so few cases that it's tough to draw any general conclusions. "Statistically, yes, if you've got two cases and everything about them is exactly the same and one case is a woman and the other case is a man, the man is more likely to be sentenced to death," Streib said, but added that he wouldn't count on that as a legal strategy.

One reason women aren't sentenced to death as often is that they don't commit as many murders and when they do they generally aren't the "worst of the worst" murders that lead to the death penalty, Streib said. Juries may also be more likely to believe a woman was emotionally distressed or not in her right mind at the time of a killing, which can spare them a death sentence, he said.

March 2, 2015 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5) | TrackBack

Resentencing on tap in Ohio beard-cutting federal assault cases

As reported in this local article, headlined "Judge to re-sentence defendants in Amish beard-cutting case," today brings another sentencing proceeding in a high-profile civil-rights case prosecuted in Ohio's federal courts. Here are the basics:

Federal prosecutors believe that the 16 Amish people who will be re-sentenced by a federal judge this afternoon for a series of beard-cutting attacks in 2011 still have not shown that they understand the harm that they caused.

A memo filed Friday by Kristy Parker, deputy chief of the civil rights division of the Department of Justice, reiterated that U.S. District Judge Dan Polster should give Bishop Sam Mullet and his followers the same sentences he gave them in February 2013, even if they do not stand convicted of carrying out religiously-motivated hate crimes because of an appellate court's decision.

"Simply put, there has also been no indication over the past two years that the time the defendants have served up to this point has in any way caused them to re-evaluate the propriety or the gravity of their behavior other than their acknowledgment that the government takes the matters seriously (even if they do not) and their obvious unhappiness at having been caught and punished," the filing says....

Polster will re-sentence all 16 defendants -- who come from the small farming community of Bergholz in Jefferson County -- at 1:30 p.m. at the federal courthouse in Cleveland. Eight of those defendants have already served out their original sentences, and Polster said in an email to attorneys last week that he intends to sentence them to time served.

At the original sentencing, the judge handed down prison terms ranging from a year and a day to 15 years for Mullet, the community's leader. Prosecutors are expected to ask for the same sentences today because Polster's original ones were lower than those recommended by the U.S. probation office. Defense attorneys are asking the judge to sentence the defendants to time served and to release the eight who remain in prison.

The defendants are members of a breakaway sect of the Amish community made up of 18 families. They were convicted of multiple crimes in September 2012 for carrying out five nighttime raids. In the attacks, members of the community rousted five victims out of bed and chopped off their beards and hair with horse mane shears and battery-powered clippers. The attackers documented the attacks with a disposable camera....

A sentencing memo filed for Mullet says that its unlikely that Mullet would ever do something similar again, and that the Bergholz Amish community is still shunned by other Amish communities because of the case and its surrounding publicity.

In a memo filed Friday, prosecutors say that "it is the defendants themselves who created these circumstances through their own lawless conduct, yet they continue to blame the government and their properly imposed prison sentences for the harms they feel they have suffered. "The defendants' sentencing memoranda leaves the impression that they are the victims in this case, not the people they violently assaulted during nighttime raids and orchestrated attacks," the memo continues.

Some related prior posts:

March 2, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Friday, February 27, 2015

Split Connecticut Supreme Court works through Miller application issues

Images (3)As reported in this local AP piece, headlined "Connecticut court tosses 100-year sentence imposed on teen," the top court in the Nutmeg State issued a notable and significant ruling on juvenile sentencing in the wake of recent SCOTUS Eighth Amendment jurisprudence. Here are the basics:

The Connecticut Supreme Court on Friday overturned a 100-year prison sentence that was imposed on a Hartford teenager in a murder case, saying juveniles cannot be treated the same as adults when being sentenced for violent crimes.

In a 5-2 ruling, justices ordered a new sentencing hearing for Ackeem Riley, who was 17 in November 2006 when he sprayed gunfire into a Hartford crowd from a passing car. Three bystanders were shot, including 16-year-old honor student Tray Davis, who died....

The Miller decision was one of three U.S. Supreme Court rulings since 2005 that “fundamentally altered the legal landscape for the sentencing of juvenile offenders to comport with the ban on cruel and unusual punishment,” Connecticut Justice Andrew McDonald wrote in the majority decision. The rulings also barred capital punishment for all juvenile offenders and prohibited life imprisonment without the possibility of parole for juveniles in non-homicide cases.

McDonald wrote in Friday’s ruling, which overturned a state Appellate Court decision, that it didn’t appear trial Judge Thomas V. O’Keefe Jr. adequately considered Riley’s age at the time of the shooting. “The court made no mention of facts in the presentence report that might reflect immaturity, impetuosity, and failure to appreciate risks and consequences,” McDonald wrote. “In the entire sentencing proceeding, only defense counsel made an oblique reference to age.”

Justices Carmen Espinoza and Peter Zarella dissented....

State lawmakers are now considering a bill that would revamp Connecticut’s juvenile sentencing rules to conform to the U.S. Supreme court rulings. A similar measure failed last year. There are about 50 Connecticut prisoners serving sentences of 50 or more years for crimes committed when they were under 18, and most are not eligible for parole. Defense lawyers say they expect more appeals involving the juvenile sentencing issue.

The extended majority ruling in Connecticut v. Riley is available at this link, and it gets started with these passages:

The defendant, Ackeem Riley, was seventeen years old when he committed homicide and nonhomicide offenses for which the trial court imposed, in the exercise of its discretion, a total effective sentence of 100 years imprisonment. The defendant has no possibility of parole before his natural life expires. In his certified appeal to this court, the defendant claims that his sentence and the procedures under which it was imposed violate Graham and Miller, and, hence, the eighth amendment....

We agree with the defendant’s Miller claim. Therefore, he is entitled to a new sentencing proceeding at which the court must consider as mitigation the defendant’s age at the time he committed the offenses and the hallmarks of adolescence that Miller deemed constitutionally significant when a juvenile offenderis subject to a potential life sentence. We decline, however, to address the defendant’s Graham claim. As we explain later in this opinion, the legislature has received a sentencing commission’s recommendations for reforms to our juvenile sentencing scheme to respond to the dictates of Graham and Miller. Therefore, in deference to the legislature’s authority over such matters and in light of the uncertainty of the defendant’s sentence upon due consideration of the Miller factors, we conclude that it is premature to determine whether it would violate the eighth amendment to preclude any possibility of release when a juvenile offender receives a life sentence.

The dissenting Riley opinion is available at this link, and it starts this way:

I disagree with the majority’s conclusion that the total effective sentence of 100 years imprisonment imposed by the trial court on the defendant, Ackeem Riley, violates the eighth amendment to the United States constitution. I agree with the Appellate Court’s conclusion that, "[b]ecause the court exercised discretion in fashioning the defendant’s sentence, and was free to consider any mitigating evidence the defendant was able to marshal, including evidence pertaining to his age and maturity"; State v. Riley, 140 Conn. App. 1, 4, 58 A.3d 304 (2013); the sentence complied with the decision of the United States Supreme Court in Miller v. Alabama, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), which held that "the [e]ighth [a]mendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." (Emphasis added.) Id., 2469. To be clear, therefore, Miller applies only to mandatory sentencing schemes. Accordingly, I respectfully dissent.

February 27, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, February 25, 2015

"Rape in the American Prison"

The title of this post is the title of this lengthy new Atlantic article about a part of the subjective experience of imprisonment for all too many prisoners despite notable efforts by Congress to address the problem of prison rape.  Here are excerpts:

In 2003, ... Congress passed the Prison Rape Elimination Act, now usually known as PREA. It was intended to make experiences [of rape in prison] far less likely.  But like many ambitious pieces of legislation, its promise has proved difficult to realize.  The law required studies of the problem that took far longer than initially intended, and adoption of the guidelines they produced has been painfully slow, resting on the competence and dedication of particular employees.  PREA has not been a complete failure, but it is also far from delivering on its promise....

Reports about prison rape by advocacy groups led to occasional efforts by federal lawmakers to address the problem. None of those initiatives gained any wide support until 2001, when Human Rights Watch released “No Escape: Male Rape in U.S. Prisons,” which focused less on perpetrators than on failures by correctional staff and policies to prevent rape.  The report included harrowing first-person accounts.  “The opposite of compassion is not hatred,” wrote one Florida prisoner, describing the violence he’d endured. “It’s indifference.” The revelations brought together liberal human rights activists, government-distrustful libertarians, and Christian conservatives. PREA was passed unanimously....

After PREA passed in 2003, the bipartisan commission announced it would obtain data on prison rape, write a report, and recommend a set of policy proposals “after two years.” The complexity and scope of the problem proved daunting, and it took nearly six; the report was released in 2009.

The next stop was Attorney General Eric Holder’s Department of Justice, which spent three years (two more than they had initially planned) deliberating over the law and translating its recommendations into final standards....

PREA specifically barred the commission from recommending standards “that would impose substantial additional costs” for prison administrators, and many told the commission that placing youth who were convicted as adults in their own facilities would be impossibly expensive. “We must house adolescents and adults separately,” Martin Horn, head of the New York City Department of Correction, said at a 2006 hearing in Miami. “This takes time, this takes staff, and this takes money. And you must ask Congress to provide it.”

Today, states only have to promise that they’re working to comply with PREA’s many requirements, including the separation of youth under 18 from older prisoners.  If they fail to do so or simply refuse to certify their compliance, as the governors of seven states have done, they stand to lose 5 percent of their grant funding from the DOJ. While most states, including Michigan, are still assuring federal authorities that they are addressing prison rape, prisoners remain at risk.

February 25, 2015 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (6) | TrackBack

Monday, February 23, 2015

"What rights do felons have over their surrendered firearms?"

The question in the title of this post is the substance of the title of this helpful SCOTUS argument preview of Henderson v. US authored by Richard Re over at SCOTUSblog.  Here are excerpts which highlight why I think of Henderson as an interesting and dynamic sentencing case:

Tuesday, the Court will hear argument in Henderson v. United States, a complex case that offers a blend of criminal law, property, and remedies, with soft accents of constitutionalism. The basic question is this: when an arrested individual surrenders his firearms to the government, and his subsequent felony conviction renders him legally ineligible to possess those weapons, what happens to the guns?

The petitioner, Tony Henderson, was a Border Patrol agent convicted of distributing marijuana, a felony offense. Shortly after being arrested in 2006, Henderson surrendered his personal collection of firearms and other weapons to federal agents as a condition of release during the pendency of his criminal case. According to Henderson, his weapons collection included valuable items that had long been in the family, as well as an “antique.” Moreover, the collection was and remains Henderson’s lawful property. So, starting in 2008, Henderson asked authorities to transfer his weapons collection to someone else. But prosecutors and courts alike declined. Understandably enough, Henderson didn’t want his collection to escheat to the government like so much feudal property. So he’s pressed his rights to the Supreme Court.

The legal issues start with a conflict between a procedural rule and a federal statute. Under Federal Rule of Criminal Procedure 41, the government usually has to “return” a defendant’s lawful property. But that can’t happen in Henderson’s case because a federal criminal law (18 U.S.C. § 922(g)(1)) prohibits convicted felons, including Henderson, from possessing firearms. So if Rule 41 were allowed to operate according to its terms, Henderson would instantly be in violation of Section 922(g)(1). The courts below recognized that result as contrary to federal law and policy. (In a footnote in its merits brief, the federal government acknowledges that some of Henderson’s long-withheld weapons collection actually doesn’t consist of firearms at all. The government accordingly assures the Court that the “FBI is making the necessary arrangements to return the crossbow and the muzzle-loading rifle to petitioner.”)

To get around Section 922(g)(1), Henderson asked the government to transfer his firearms to third parties who are permitted to possess such items – specifically, either his wife or a friend who had promised to pay for them. Those proposed transfers, Henderson points out, wouldn’t result in his own possession of the firearms. And, critically, the proposed transfers would honor Henderson’s continued ownership of the weapons.... While Rule 41 by its terms may authorize only the “return” of property, Henderson argues that the federal district courts have “equitable” authority to direct transfers to third parties....

Without questioning that federal equitable authority operates in this area, the courts below apparently rejected Henderson’s transfer request in part based on the ancient rule of “unclean hands.” Under this venerable maxim, a wrongdoer (whose hands are figuratively dirty) may not seek relief at equity in connection with his own wrongful act. Based on a broad view of that precept, the courts below seemed to say that convicted felons are categorically barred from equitable relief as to their government-held property. Henderson contends that this holding revives ancient principles of “outlawry,” whereby criminals lose the protection of the law, while also running afoul of the Due Process Clause, the Takings Clause, and other constitutional provisions. However, the Solicitor General disputes that the decision below actually rested on this ground and — more importantly — has declined to defend it.

Instead, the federal government defends the result below on the ground that Section 922(g)(1) should be read to prohibit not just felons’ actual possession of firearms, but also their “constructive possession” of such weapons. On this view, impermissible constructive possession occurs when a convicted felon can exert some control over the next physical possessor of a particular item of property. Thus, Henderson would exert constructive possession – barred by federal law – if he could direct the transfer of his firearms to any particular person, including his wife or friend. Such direction, the government contends, would also create an unacceptable risk of letting the firearm find its way back to the felon. A permissible approach, in the government’s opinion, would be for it to transfer weapons to a licensed firearms dealer for sale, with proceeds going to the convicted felon.

Having gotten the federal government to endorse some remedial third-party transfers – a significant development in itself – Henderson asks why a convicted felon can’t at least nominate specific third parties, like a museum or a relative, to receive previously surrendered firearms that double as historical artifacts or family heirlooms....

While the ultimate outcome may turn in part on case-specific facts, the case touches on a number of important public debates. This becomes most obvious when the parties peripherally joust over the Second Amendment. The case has also drawn a number of amici. For instance, the Institute for Justice connects the case to public debate over forfeitures by asserting an aged canon against such forfeitures. Meanwhile, the National Association of Criminal Defense Lawyers and the National Rifle Association of America respectively argue from the Excessive Fines Clause and, of course, the Second Amendment. The Brady Center to Prevent Gun Violence, the government’s only amicus, also joins issue.

February 23, 2015 in Fines, Restitution and Other Economic Sanctions, Gun policy and sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Urging more media coverage of the "truly guilty and violent"

Via consistently helpful Marshall Project, I came to see this interesting recent piece by Steve Bogira titled "Guilty As Charged" at the Social Justice News Nexus site. Here are extended excerpts:

The mainstream media and “social justice” journalists treat criminal justice subjects compassionately at times, but the beneficiaries of their compassion diverge. The mainstream media focus on the victims of crime, while social justice journalists focus on victims of the criminal justice system.

The former task is easier, because readers are quick to sympathize with crime victims. The latter task is commendable, because it involves telling the stories of outcasts.  Yet, even those of us who take on the latter task still tend to stick to the easier parts of the topic. Our favorite subjects are innocent people who are wrongly convicted.

When we do write about the guilty, we prefer they be nonviolent offenders.  We’re particularly partial to petty drug offenders. Among violent offenders, we prefer juveniles.

We fear our readers can’t possibly develop compassion for anyone who robs, beats, rapes, or kills.  We ourselves have trouble feeling compassion for such offenders; to do so violates a taboo.  Only if the violent offender has the mitigating factor of youth, or sometimes mental illness, are we likely to take on his or her story.

But this means we neglect much that is immensely significant.  There are too many drug offenders in prison, but prisons are not mainly holding drug offenders or the nonviolent. Seventeen percent of the 49,000 inmates in Illinois prisons were serving terms for controlled substance crimes, and another 1.6 percent had violated the cannabis control act, as of June 2013 (the most recent figures), according to the Illinois Department of Corrections.  That’s less than 19 percent in all who were doing time for drug offenses–compared with 54 percent who’d been convicted of violent offenses. Nationally, the proportion of prisoners serving sentences for violent crimes in 2012 was also 54 percent, according to the Bureau of Justice Statistics.

Stories about the wrongly convicted, and about the drug war, and about juvenile and mentally ill offenders, can lead to much-needed reforms of the criminal justice system. But stories about the truly guilty and violent can have a larger target: our nation’s structural inequality, and the wounds it inflicts every hour, every day, on African-Americans more than any other group, in segregated cities throughout the nation.

Concentrated poverty – resulting from the virulent mix of poverty and racial segregation – yields many poisoned fruits, not the least of which is violence. Children growing up amid concentrated poverty are more likely to witness violence in their neighborhoods, and to experience it in their homes, than children in more advantaged areas. And children growing up amid violence are far more likely to become violent themselves.

There’s a crying need for stories that make the crucial connections between concentrated poverty and violence, and that shift the focus from individual responsibility to our collective culpability. In the context of criminal justice stories, it’s not a connection journalists can make when their subjects are innocent or nonviolent.

February 23, 2015 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, February 22, 2015

"PTSD in the Prison System"

The title of this post is the title of this paper by Julie Ann Davis now available via SSRN. Here is the abstract:

The treatment of Veterans with post-traumatic stress disorder in the federal prison system has fallen in quality, if it can ever be said to have been sufficient.  This work presents an analysis of PTSD in Veterans, identifies the deficiencies in prison systems to address the mental health aspects of PTSD, and presents solutions to address the needs of our soldiers.

February 22, 2015 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (1) | TrackBack

Saturday, February 21, 2015

"Who Watches the Watchmen? Accountability in Federal Corporate Criminal Prosecutions"

The title of this post is the title of this new paper by Michael Patrick Wilt now available via SSRN.  Here is the abstract:

The Department of Justice entered into hundreds of deferred and non-prosecution agreements (DPAs and NPAs) with corporations over the last twenty years, and continues to increase the use of these agreements every year.  However, there is no academic scholarship that explores whether the DOJ has grounded these criminal settlements in traditional criminal sentencing procedures.  Specifically, do these agreements — which can often include hundreds of millions of dollars in penalties — follow the carefully considered principles of the U.S. Sentencing Guidelines for Organizations?

This article considers this question in light of the public choice theory of criminal procedure and concludes that the DOJ is not utilizing the Sentencing Guidelines in a manner consistent with basic notions of government accountability in the criminal justice system.  The article uses data collected from over three hundred deferred and non-prosecution agreements and finds that only a small percentage include an analysis of a monetary penalty based on the Sentencing Guidelines.  The government’s use of a non-traditional process to resolve corporate criminal cases should be concerning in the absence of an institutional check such as the Sentencing Guidelines.  The article urges the DOJ to adopt standardized procedures for future criminal settlements, including a demonstration of the Sentencing Guidelines analysis typically found in plea agreements.

February 21, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, February 20, 2015

Virginia's former first lady facing sentencing after hubby got only two years

Today brings another high-profile white-collar sentencing in the federal court in Virginia as Maureen McDonnell, former first lady, is to come before the same judge who sentenced former Virginia Gov Robert McDonnell to two years' imprisonment last month. Helpfully, Randall Eliason at the Sidebars Legal Blog provides this preview, titled "What to Expect at Maureen McDonnell’s Sentencing." Randall provides this refined summary of the guideline basics and the parties' recommendations:

The Presentence Report prepared by the U.S. Probation Department concludes that the Sentencing Guidelines call for a sentence of 63-78 months in prison. The prosecution agrees with those calculations but recommends the judge sentence her to only 18 months in prison to avoid an unwarranted disparity between her sentence and that of her husband. Mrs. McDonnell’s attorneys argue that, properly calculated, the Sentencing Guidelines call for only 33-41 months, but urge the judge to depart even further from the Guidelines and sentence her to probation along with 4000 hours of community service.

In addition, the Washington Post has this article headlined "Everything you need to know about Maureen McDonnell’s sentencing." But that piece does not set out these guideline basics, so the headline is not accurate for hard-core federal sentencing geeks like me.

UPDATE:  As this Washington Post piece reports, "Maureen McDonnell was sentenced Friday to a year and a day in federal prison after an emotional, hours-long hearing in which the former first lady of Virginia apologized publicly for the first time since she and her husband were accused of public corruption."

As all competent federal sentencing lawyers know, a sentence of a year and a day for the former first lady is actually better than a sentence of one year. That extra day makes her formally eligible to earn good-time credit, which nearly all non-violent offenders earn. So, practically, Ms. McDonnell is now likely to be released from federal custody after only 10.5 months in the federal graybar hotel.

February 20, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (1) | TrackBack

Thursday, February 19, 2015

The back-story of George Toca's case (and its impact on other juve LWOPers)

George TocaThis new Bloomberg article authored by by Matt Stroud provides an interesting account of the stories behind what was, until it was settled a few weeks ago, the case the Supreme Court had planned to use to resolve the retroactive application of its Miller Eighth Amendment ruling. The piece is headlined "Prisoners Sentenced to Life as Kids Just Lost Their Best Chance for Freedom: How the criminal justice system failed George Toca — and 1,500 others like him," and it is a must-read and a must-watch based on the video linked to the story. Here are excerpts:

In 1984, when Toca was 17, he was charged with accidentally shooting and killing his best friend, Eric Batiste, during a failed carjacking.  Victims picked him out of lineups, despite initial statements to police describing an older, heavier shooter who was at least five inches taller than Toca and who did not have four gleaming gold caps on his top front teeth.

Largely on the basis of eyewitness testimony, Toca was convicted of second-degree murder in 1985 and given a mandatory sentence of life in prison without the possibility of parole. He has spent most of the last 31 years in Louisiana’s notorious Angola state penitentiary....

Toca has had an interesting winter.  In addition to denying responsibility for his friend’s killing — and working with lawyers at the Innocence Project New Orleans since 2003 to prove his case — Toca appealed to be resentenced based on his age at the time of the alleged crime. The U.S. Supreme Court selects less than 2 percent of the cases presented to it. In December, it agreed to hear Toca’s appeal....

[I]n 2012, in Miller v. Alabama, the court ruled that a mandatory sentence of life without parole, handed down in 29 states’ murder cases as well as those in federal court, is unconstitutional for offenders younger than 18.  The decision left a question on the table: What about those who had already been convicted?  Should they be resentenced?

Some states have said that all juveniles sentenced to mandatory life without parole should have a new sentencing hearing. Others — Louisiana, Pennsylvania, Michigan, and Minnesota — have decided against retroactivity.  The exact numbers are in dispute, but according to figures from Human Rights Watch and estimates from the Juvenile Law Center in Philadelphia, that means about 1,500 sentences nationwide hang in the balance.  By agreeing to hear and decide Toca’s appeal, the Supreme Court planned to end the uncertainty of those cases.

But in the weeks after the court agreed to hear the case, Toca was approached by Orleans Parish District Attorney Leon Cannizzaro with a tempting offer.  Toca had long maintained his innocence in the shooting, but now the D.A. had a deal for him. If he signed a plea agreement admitting to armed robbery, Cannizzaro would drop the original conviction and Toca would be paroled immediately....

Since he agreed to a plea deal, though, the Supreme Court dismissed his case and he is no longer standing in for 1,500 juvenile lifers like him in front of the nation’s highest court.

For those who believe juveniles sentenced to life behind bars should be forced to spend their lives there, Toca’s release is actually good news.  “This shows me that the system works,” said Bobbi Jamriska, whose pregnant sister was brutally beaten and stabbed to death in 1993 by a 16-year-old in suburban Pittsburgh.  “They went back and they questioned his case and raised their concerns, and [Toca] ended up being let out of jail.”

Jamriska has fought hard to keep both the death penalty and life without parole on the table for juvenile offenders.  As Pennsylvania director of the National Organization of Victims of Juvenile Murderers, she said her organization didn’t want Toca’s case in front of the Supreme Court anyway.  His case is “an extreme,” she said. “Even the victim’s family is saying, ‘Get him out of jail,’ ” Jamriska said.  “We’d prefer to have a case that’s more representative of some of the horrific crimes juveniles commit.”...

Will the Supreme Court [take up] another [case]?  Marsha Levick, deputy director and chief counsel of the Juvenile Law Center in Philadelphia, believes it will.  At least five cases —three in Louisiana, two in Michigan — have been sent for Supreme Court review and could replace Toca’s, but not until the next term at the earliest. That's in October.

Levick doesn’t blame Toca for his decision. “First and foremost, good for him,” she said. “I don’t think anybody who has been waiting for the retroactivity issue to be ruled upon would in any way question the decision that George Toca made. How could he not walk out of prison after 30 years?” For the other juvenile lifers nationwide, “obviously it was disappointing,” she said. “They’re still waiting, just as they have been for 30, 40, 50 years. And they think it’s time for them to get out as well.”

Toca hopes they do, too. Sitting outside with the sun shining above him, he looked down and offered an apology. “I know they was really relying on my case to get the retroactivity of the Miller case resolved,” he said. “All I can say is, I’m sorry that I let ’em down. This was all I could do.”

February 19, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, February 16, 2015

Feds assert, despite reversal of hate crime convictions, Amish beard-cutters should get same sentences

As reported in this AP piece, headlined "Federal prosecutors want same sentences in Amish beard-cutting case when they are resentenced," the feds are claiming that the reversal on appeal of the most-serious charges against a group of Amish defendants (details here) should not impact their sentence one whit.  Here are the details:

Sixteen Amish men and women whose hate crime convictions in beard- and hair-cutting attacks were overturned still should receive the same sentences, federal prosecutors told a judge who will resentence the group.

The members of the eastern Ohio Amish group are scheduled to be resentenced March 2 after the 6th U.S. Circuit Court of Appeals overturned only their hate crimes convictions. New sentences are required because the original sentences were based both on hate crimes convictions and convictions on other charges but did not differentiate between them.

The attacks were in apparent retaliation against Amish who had defied or denounced the authoritarian style of Sam Mullet Sr., leader of the Bergholz community in eastern Ohio. The U.S. Attorney's Office, in a court filing on Friday, said Mullet should be resentenced to 15 years for concealing evidence and making false statements to the FBI. Both of those charges were not overturned.

The other defendants should also be given the same lesser sentences. Those defendants who have already been released should be sentenced to time served, the prosecutors said.

Prosecutors argued that the conduct that led to the hate crime charges, which included kidnapping, should still be considered even if the defendants are no longer convicted of a hate crime.

Defense attorneys are expected to file their response next week.

I am neither surprised or troubled that the feds want the same sentences imposed on the less culpable defendants who have already finished serving their prison time. But I struggle to see how urging the same exact sentence for Sam Mullet Sr. despite reversal of the most serious convictions against him serves to "promote respect for the law" as 18 USC 3553(a)(2)(A) requires.

Related prior posts:

February 16, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, February 13, 2015

Texas sentencing jury finally brings needed sanction to recidivist drunk driver

A helpful reader, knowing I have long expressed concern about under leniency often shown to dangerous repeat drunk drivers at sentencing, altered me to this notable state sentencing story out of Texas.  The story, headlined "Texas man sentenced to two life terms after 10th DWI," reinforces my view that juries can sometimes be wiser than judges at sentencing:  

Bobby Gene Martin’s brushes with law reinforcement for driving drunk date to 1981. But this week, his 30-year streak of DWI arrests came to an abrupt end.

A Texas jury convicted the 64-year-old of his 10th drunk driving offense along with a retaliation charge for threatening to harm the arresting officer and his family. They gave him two life sentences.

The jury came back with its guilty verdict after three hours of deliberation. And throughout the proceedings, the jury had no idea that Martin had already been arrested nine other times for drunk driving. They only knew that this was at least his third. “You could see they were actually shocked that he’d had 10 DWIs and was still out and about driving around,” Montgomery County Assistant District Attorney Kyle Crowl said.

Martin was also convicted of threatening to kill the arresting deputy, his wife, his children and his mother, according to the prosecutor. It also wasn’t the first time he had made such threats, Crowl noted. During a 1999 incident, Martin was accused of threatening to kill the officer who arrested him and “everything he ever loved.”...

Martin will be 80 before he is eligible for parole, according to Crowl.

UPDATE:  I just noticed this Houston Chronicle article which asserts that Bobby Gene Martin is the "33rd [Texas] inmate serving life in state prison for drunk driving" as a result of multiple drunk driving convictions. Though I do not know Texas law well, I presume that most (if not all) of these recidivist drunk drivers were given these life sentences by juries and that they are eligible for parole at some point like Bobby Gene Martin. I make this point because it highlights some contrast between these recidivist alcohol offenders and the hundreds of recidivist drug offenders serving life without parole in federal prison due to a mandatory LWOP statutory minimum sentencing term.

February 13, 2015 in Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, February 11, 2015

"Incarceration’s Front Door: The Misuse of Jails in America"

Incarcerations-front-door-infographicThe title of this post is the title of this notable new report produced by the Vera Institute of Justice. This New York Times article, headlined "Jails Have Become Warehouses for the Poor, Ill and Addicted, a Report Says," provides a helpful summary of and context for this report:

Jails across the country have become vast warehouses made up primarily of people too poor to post bail or too ill with mental health or drug problems to adequately care for themselves, according to a report issued Wednesday.

The study, “Incarceration’s Front Door: The Misuse of Jails in America,” found that the majority of those incarcerated in local and county jails are there for minor violations, including driving with suspended licenses, shoplifting or evading subway fares, and have been jailed for longer periods of time over the past 30 years because they are unable to pay court­imposed costs.

The report, by the Vera Institute of Justice, comes at a time of increased attention to mass incarceration policies that have swelled prison and jail populations around the country. This week in Missouri, where the fatal shooting of an unarmed black man by a white police officer stirred months of racial tension last year in the town of Ferguson, 15 people sued that city and another suburb, Jennings, alleging that the cities created an unconstitutional modern­day debtors’ prison, putting impoverished people behind bars in overcrowded, unlawful and unsanitary conditions.

While most reform efforts, including early releases and the elimination of some minimum mandatory sentences, have been focused on state and federal prisons, the report found that the disparate rules that apply to jails is also in need of reform.

“It’s an important moment to take a look at our use of jails,” said Nancy Fishman, the project director of the Vera Institute’s Center on Sentencing and Corrections and an author of the report. “It’s a huge burden on taxpayers, on our communities, and we need to decide if this is how we want to spend our resources.”

The number of people housed in jails on any given day in the country has increased from 224,000 in 1983 to 731,000 in 2013 — nearly equal to the population of Charlotte, N.C. — even as violent crime nationally has fallen by nearly 50 percent and property crime has dropped by more than 40 percent from its peak.

Inmates have subsequently been spending more time in jail awaiting trial, in part because of the growing reluctance of judges to free suspects on their own recognizance pending trial dates, which had once been common for minor offenses.  As a result, many of those accused of misdemeanors — who are often poor — are unable to pay bail as low as $500.

Timed with the release of the Vera Institute report, the MacArthur Foundation announced Wednesday that it would invest $75 million over five years in 20 jurisdictions that are seeking alternatives to sending large numbers of people to jail.  The jurisdictions, which could be cities, counties or other entities that run local jails, will be announced this spring.  Nationwide, the annual number of jail admissions is 19 times higher than the number of those sent to prison, and has nearly doubled since 1983, from about 6 million to 11.7 million. A significant number are repeat offenders, the report said.

Via this link, the Vera Institute has available the full Incarceration’s Front Door report, a helpful summary and the infographic I have tried to reproduce here.

February 11, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

New bipartisan federal prison reform bill introduced (with good chance of passage?)

This article from The Hill, headlined "Senators unveil prison reform bill," reports on the latest iteration of a bipartisan federal criminal justice reform proposal.  Here are the details: 

Two members of the Senate Judiciary Committee are reintroducing a prison reform bill they say will achieve a major goal of criminal justice reformers: reducing the size of the federal inmate population. Sens. John Cornyn (R-Texas) and Sheldon Whitehouse (D-R.I.) pushed the Corrections Oversight, Recidivism Reduction, and Eliminating Costs for Taxpayers in Our National System (CORRECTIONS) Act at a press conference Tuesday.

The law is meant to reduce the number of people — currently just over 210,000 — incarcerated in federal prisons.  The package proposed by the two senators takes a more moderate approach to reducing prison populations than other proposals that would implement reductions to mandatory sentences.  It also supports programs that help prisoners avoid returning to crime after being released.

Prisoners would undergo a risk assessment to determine whether they present a low, medium or high risk of committing another offense.  Prisoners determined to have a low or medium risk of offending again would be eligible to earn time off of their sentences by participating in recidivism reduction programs, including drug counseling or vocational training, a release from Whitehouse’s office said.

In total, prisoners can earn 25 percent of their sentence off through the law. The bill, though, prevents certain types of prisoners, like those serving time for sex offenses or terrorism, from benefiting from the law. "We want to go forward with what's passable without subjecting the bill to the kind of Willie Horton-type critique that it might receive,” Whitehouse said of the decision not to have the law cover some types of prisoners....

Cornyn and Whitehouse said they are open to debating additional measures, including changing the mandatory minimum sentences for nonviolent drug crimes. But they touted their measure as a good starting point for a larger conversation about criminal justice. “This is a debate that we welcome,” Cornyn said when asked whether sentencing reform could conceivably be added to the bill. “There's a lot of things we can do to improve our criminal justice system, and there's a lot of it being discussed. Things like mandatory minimums, sentencing reform, over criminalization, particularly of the regulatory environment. There are a lot of things we can do better.”

"Given the new open amendment process in the United States Senate, anybody who's got a good idea and 60 votes — 59 plus theirs — can offer it by way of an amendment," he added.

Whitehouse said that having a criminal justice bill moving through the Senate could buoy other ideas for reforming the criminal justice system.  "I think if this bill proves to be a catalyst for further legislation in the area of sentencing reform and criminal justice reform, John and I would have no objection to that,” he said....

Some, including Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), have been reluctant to support changes to the mandatory sentences. But Grassley recently expressed an openness to having his committee consider the idea in an interview at a conservative event last month.

As the title of this post highlights, I have little idea if this CORRECTIONS Act has a real chance at passage. But I am keeping my fingers crossed.

February 11, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, February 10, 2015

ABA resolution calls for elimination of juve LWOP in the United States

DownloadAs reported in this Robina Institute press release, yesterday "the American Bar Association (ABA) approved a resolution calling for an end to the practice of sentencing children to life-in-prison-without-parole and urging meaningful periodic opportunities for release.”  Here is more from the press release:

The United States stands alone in permitting sentences of life without parole for juveniles. It is the only country other than Somalia that has not yet ratified the Convention on Rights of the Child, which prohibits life without parole sentences for children.  Passage of this resolution signals the ABA’s commitment to reforming U.S. juvenile sentencing laws and aligns with recent rulings by the U.S. Supreme Court affirming that children are “constitutionally different” from adults, and that because children have diminished culpability and greater prospects of reform, they should not be routinely subject to our nation’s harshest penalties.

“With the adoption of Resolution 107C, the American Bar Association has sent a clear message to the legal community and policymakers across the country that children should never be sentenced to die in prison,” said ABA President, William C. Hubbard.  “As the world’s foremost leader and defender of human rights, the United States should ban life without parole sentences for children — a severe violation of human rights. The ABA applauds those states that have already taken steps to reform their laws and urges other states to pass similar reforms as soon as practicable.”

“For any one individual, if over time that person continues to pose a significant risk to public safety, a life sentence may be appropriate,” said Robina Institute Executive Director Kelly Mitchell.  “What this resolution is saying is that the moment of sentencing is not the time to make the judgment that a person is forever irredeemable.”

The control and administration of the ABA is vested in the House of Delegates, which is the 560-member policy-making body of the association.  The House of Delegates meets twice each year, at ABA Annual and Midyear Meetings.  Action taken by the House of Delegates on specific issues becomes official ABA policy.

The full text of ABA Resolution 107C and its assoiated report is available at this link.

February 10, 2015 in Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, February 07, 2015

Ohio Gov John Kasich advocating significant resources devoted to addiction services for prisoners

As reported in this local article, headlined "Addiction programs for incarcerated included state budget," Ohio's GOP Governor John Kasich is now showing through his latest budget proposal that he remains deeply committed to "smart on crime" sentencing and prison reforms. Here are the details:

Eight of 10 people come to Ohio prisons with a history of abusing drugs and alcohol.  Most leave without treatment or a recovery plan, with predictable results. On the outside, they return to old addictive habits that often trigger criminal behavior.

Gov. John Kasich’s proposed state budget calls for a $61.7 million collaboration by two agencies to treat offenders both behind bars and once they are released. “This is not tinkering with recovery programs. This is going to be a remarkable leap forward, addressing a large group of people coming to our prisons who in many cases aren’t being served at all,” said Gary Mohr, director of the Ohio Department of Rehabilitation and Correction.

The big-picture goal is to help ex-offenders succeed outside prison and, in the long run, to cut prison costs charged to taxpayers. Statistics show that about 10 percent of inmates who get alcohol and drug treatment later return to prison, compared with about 27 percent of those who don’t get treatment.

The change pushed by Kasich would shift responsibility for inmate-recovery services from Rehabilitation and Correction to the Department of Mental Health and Addiction Services. It involves moving 120 people who work for prisons to the mental-health agency budget at a cost of $12.5 million annually. They will, however, continue working in the same jobs.

Prison officials estimate that about 4,500 of the roughly 30,000 inmates with moderate to severe addiction problems are getting recovery services. Officials from the two agencies won’t predict how many more inmates will be treated until the program is in place, but Stuart Hudson, prison chief of medical services, said it will be a “substantial increase.”...

Mental-health director Tracy Plouck said much of the $61.7 million, beyond the $25 million to absorb the DRC staff, will go for community recovery services once inmates return home.

Prison officials have struggled for years with an influx of inmates who commit nonviolent crimes, many of them related to their addictions.  For about 20 percent of new prisoners, a drug charge is their most serious offense.  Many are in and out of prison so quickly there isn’t time or resources to get them involved in recovery programs, Mohr said.

“We’re not reaching enough people and we’re not reaching them early enough,” Mohr said. “Ohioans are paying $22,500 a year for each prisoner, and we should be doing more than warehousing them. We are committed to helping people improve their lives.” Ohio’s recidivism rate of 27.1 percent is far better than the national average of over 40 percent.

February 7, 2015 in Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (3) | TrackBack

Split Washington Supreme Court decides accomplices must receive distinct sentencing treatment

As reported in this local article, headlined "Washington Supreme Court alters sentencing structure for accomplices," the top court in the Evergreen State earlier this week issued an interest opinion concerning how the state's sentencing structure should be applied to those found guilty as accomplices. Here is a summary from the press report:

In a 5-4 opinion released Thursday, the state’s high court ruled that convicted identity thief Larry Hayes should have received a standard-range sentence after being convicted of a host of felonies in 2009.  Instead, he got a 15-year term under a provision that allows prosecutors to seek extra punishment for egregious offenders. The majority ordered the case back to Pierce County for re-sentencing.

At issue is how people charged as accomplices should be treated under the law at sentencing. For years, Washington law has prescribed that accomplices and principle actors in a crime be exposed to the same culpability, a concept Pierce County Prosecutor Mark Lindquist on Thursday called “in for a penny, in for a pound.”

In an opinion written by Justice Charles Johnson and signed by Justices Charles Wiggins, Susan Owens, Mary Fairhurst and Sheryl Gordon McCloud, the majority ruled that should not always be the case, especially where sentencing is concerned.

Until Thursday, when a prosecutor sought an exceptional sentence for a criminal defendant, he or she had to prove to a jury that certain aggravating factors made the crime worse than usual. The requirement applied to principle actors and accomplices alike. Thursday’s majority opinion said the blanket application to accomplices is improper.

Accomplices should be judged for their specific role in the crime and not just on the crime itself, the majority ruled. An accomplice, to qualify for an exceptional sentence, must have knowledge that the crime he or she is involved in is worse than usual, Johnson wrote, and prosecutors now must prove that knowledge to a jury. “...this finding of knowledge ensures that the defendant’s own conduct formed the basis of the sentence,” Johnson wrote....

Justice Debra Stephens authored the dissent, which was signed by Chief Justice Barbara Madsen and Justices Mary Yu and Steven Gonzalez. Stephens argued that the majority was turning decades of case law on its head for no good reason. “It makes no sense that a principal should be punished regardless of whether he or she knew the crime was a major economic offense but an accomplice, who committed the same crime, should not be,” she wrote.

She went on to say the ruling would have far-reaching impacts. “It is no exaggeration to say that the way co-participants have long been tried in this state will need to change in order to accommodate the knowledge finding the majority superimposes on the enhancement statute,” Stephens wrote.

Lindquist agreed with Stephens’ assessment and said he would consider asking state lawmakers to pass legislation clarifying what they want to happen to accomplices. “They could say, ‘We meant what we wrote: Principals and accomplices are equally culpable,’” Lindquist said.

Appellate attorney Nancy Collins, who worked on Hayes’ appeal, said she thinks the majority got it right and that the application of the ruling would not be onerous. “I don’t see it as a change in the law at all,” Collins said. “The majority said the jury needs to consider the defendant’s individual conduct.”

The full opinion in Washington v. Hayes, No. 89742-5 (Wash. Feb. 5, 2015), is available at this link.

February 7, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Wednesday, February 04, 2015

A positive perspective on possible prison reform emerging from Congress

This lengthy new article in The National Journal provides an interesting and informative look at the politics and people at the center of federal sentencing and prison reform discussions. The piece's headlined highlights its themes: "This Is How Justice Reform Can Actually Happen This Year: Chuck Grassley's power will change the dynamics of sentencing reform. But there's still a bipartisan way forward in the Senate." The full piece is a must-read for anyone closely following congressional reform realities, and here is how the article starts:

The rise of Sen. Chuck Grassley to the head of the Judiciary Committee has made a lot criminal-justice reform advocates nervous.

Four months ago, before Republicans took back the Senate, it appeared that reducing mandatory minimums had overcome crucial hurdles.  The Smarter Sentencing Act, which would reduce mandatory minimums for some drug offenders, passed out of committee in January 2014 and attracted a roster of high-profile backers, from former GOP vice presidential nominee Paul Ryan to progressive leader Elizabeth Warren of Massachusetts. Potential 2016 presidential candidates such as Sens. Rand Paul and Ted Cruz had decried mandatory minimums.  Even President Obama and the Koch brothers, who have spent millions against him, agreed the sentencing requirements had to be reduced.

But, like many conservatives who came to power in an era when Republicans branded themselves as the "tough on crime" party, Grassley has made it clear that he sees the steady reduction in violent crime in the United States over the last 30 years as a direct reflection of more-effective policing strategies.  And he believes that mandatory minimum laws that ensure criminals stay locked up have been key to that progress.

Grassley's posture toward mandatory minimums has given some advocates pause. "I do think we can work with him," Sen. Jeff Flake, R-Ariz., a member of the Judiciary Committee, said of Grassley.  "He knows some changes need to be made, but it does influence how far you can go if the chairman stands opposed."

In a Democratic-controlled Congress, many saw a clear path for reducing mandatory minimums.  A handful of vocal GOP supporters have continued to say justice reform should remain a key priority in the new Senate.  But with Grassley in charge, the path forward for criminal-justice reform will likely look very different.

And we may get our first true glimpse of it next week — when GOP Sen. John Cornyn of Texas introduces a rare bill that could actually get through Congress and be signed by the president.  That legislation would be similar to what was known as the Recidivism Reduction and Public Safety Act in the 113th Congress.  That bill was also bipartisan but far less contentious than the Smarter Sentencing Act among the Republican rank-and-file. Even Grassley voted it out of committee last year, where it passed 15 to 2.  Many of the same members are still sitting on the committee with a few GOP additions, including Thom Tillis of North Carolina and David Perdue of Georgia.

The bill next week will focus on transitioning prisoners back into the community after they have served their time. It requires that each inmate undergo a risk assessment to evaluate his or her propensity for recidivism.  Then it allows those deemed medium- and low-risk to earn credits for participating in programs such as job training or substance abuse counseling.  Certain well-behaved and low-risk offenders could then use those credits to serve out the final days of their sentences under some kind of community supervision.

Grassley's office insists that it is early, and no decisions have been made on what bills will make it through the committee.  There is an attorney general to confirm and more on the committee's docket that comes before discussions about far-reaching justice reform.  But, shuffling down the hallways of the Dirksen Senate Office Building in January, Grassley rattled off his top three goals for the committee. "Juvenile-justice reform, patent trolling, and ... prison reform," he said.  "There are some things where there is a pretty good shot of getting some bipartisan agreement."  And, if the Senate GOP's No. 2 introduces the bill, it will make it harder for Grassley to ignore.

February 4, 2015 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, February 03, 2015

"How to Stop Revolving Prison Doors With Books"

The title of this post is the title of this extended piece in the Harvard Political Review authored by Alice Hu.  Here is how it starts and ends: 

Education reduces crime.  This connection seems like common sense, and indeed it has been researched, analyzed, and affirmed countless times.  According to a 2007 collaborative study by Columbia University, Princeton University, and City University of New York, higher education reduces the crime rates of both juveniles and adults by impacting social behavior and economic stability.

The effect of education on crime-reduction is even more dramatic for a certain group within the population: the incarcerated.  To many, the idea of convicts receiving a free college education behind bars is confounding and, more often, infuriating.  When New York Governor Andrew Cuomo introduced a plan to publicly finance basic college education programs in state prisons, legislators in Albany called it “a slap in the face” for law-abiding citizens.

While this response is understandable, the arguments themselves neglect the actual effects of college-in-prison programs.  According to the U.S. Department of Education, inmates who participated in education programs had a 43 percent lower chance of returning to prisons than those who did not.  By drastically reducing the recidivism rate of former inmates, education in prisons returns a tremendous social benefit for all members of society.  Prison education programs not only save an enormous sum of tax dollars spent on prisons annually, but they also have a profound effect on thousands of families and communities.  The current resistance to college-in-prison is founded upon political rhetoric rather than any factual evidence. Indeed, this type of rhetoric by politicians is perhaps indicative of a large, troubling trend in education and incarceration....

College stops the revolving prison doors. It allows inmates the opportunity to reintegrate into society, to work, pay taxes, and contribute to society.  It saves the public billions of tax dollars, money that can go toward higher education aid for students rather than prison expansion.  The “tough on crime” rhetoric may have helped past politicians — Democrats and Republicans alike — to win elections, but it has done little to help the people inside or outside the prisons.  Indeed, the adverse effect of forgoing college programs for inmates cuts across partisan lines and prison bars.  Perhaps this is why President Clinton, who was once adamant about being “on the side of those who abide by the law,” has since commended Bard Prison Initiative as a “good investment in a safer, more productive society.”  Politicians can choose to neglect the evidence and paint college-in-prison programs as unfair to law-abiding citizens, but the true injustice lies in the continuation of ineffective and costly practices when a solution is readily available — education.  It is common sense, after all.

February 3, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Sunday, February 01, 2015

"Should Veterans With PTSD Be Exempt From the Death Penalty?"

The title of this post is the headline of this lengthy piece from The Atlantic. Here are excerpts:

PTSD is a severe mental disorder that can affect intellectual and adaptive functioning, trigger flashbacks to traumatic events, and impair one's judgment. As its name implies, it can develop after exposure to a life-threatening event.... About 20 percent of military personnel who served in war zones in Iraq and Afghanistan and up to 30 percent of Vietnam War veterans have experienced it in their lifetimes, according to National Center for PTSD statistics....

Despite the stigma attached to PTSD, the Department of Veterans Affairs emphasizes that most veterans suffering from the condition are not violent.... “Rambo is not the face of PTSD,” Paula Schnurr, executive director of the VA's National Center for PTSD, said in an interview with The Desert Sun. “It's extremely important that we recognize that the majority of people with PTSD don't engage in criminal and violent actions.”

The risk of criminal behavior isn’t necessarily higher among combat veterans than with civilians, according to mental health experts. "I am unaware of data showing that people with PTSD are more violent than other people," Richard McNally, the director of clinical training in Harvard University's psychology department, told Reuters.

But some legal scholars and mental health experts suggest the criminal justice system should treat convicted veterans suffering from war trauma differently than other criminals. In a 2009 Fordham Law Review article, Anthony Giardino, an attorney and former Marine, argued that veterans suffering from service-related PTSD and traumatic brain injuries should receive a categorical exemption from the death penalty. "If the death penalty is truly only for the worst offenders, justice requires that combat veterans suffering at the time of their offenses from service-related PTSD or TBI [traumatic brain injuries] not be executed or sentenced to death," he wrote....

Giardino isn’t alone in making this argument. Mental-health experts Hal S. Wortzel and David B. Arciniegas made a similar case for exempting veterans affected by war trauma from the death penalty. Military training and combat, combined with traumatic experiences, may have an impact on aggression and behavioral control, the authors said in a 2010 article....

It's difficult for the legal system to truly grasp what veterans with PTSD have experienced. This lack of empathy is a key obstacle to change.... Until society realizes how combat can change service members, the fate of capital defendants with combat PTSD will remain an open question.

February 1, 2015 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (3) | TrackBack

Thursday, January 29, 2015

George Toca now a free man ... and SCOTUS now lacks a live Miller retroactivity case

This local article from Louisiana, headlined "George Toca, La. inmate at center of debate on juvenile life sentences, to go free," reports on a remarkable turn of events in a case that was supposed to serve as the means for the Supreme Court to address the retroactivity of its Eighth Amendment Miller ruling. Here are the details:

A state prisoner from New Orleans who recently landed at the center of national legal debate about mandatory life sentences for youthful offenders won his freedom Thursday after 31 years in prison. Orleans Parish District Attorney Leon Cannizzaro’s office agreed to vacate his murder conviction.

George Toca, 47, is set to go free after pleading guilty instead to two counts of attempted armed robbery and one count of manslaughter from a 1984 stickup that ended with his best friend, Eric Batiste, fatally shot outside a convenience store on South Broad Street in Broadmoor.

Toca’s release almost certainly means the U.S. Supreme Court will scrap a scheduled hearing this spring on whether its 2012 decision in a case known as Miller v. Alabama, barring mandatory life sentences for juvenile convicts, is retroactive.  The high court in November took up Toca’s case, above others, to settle an issue that affects about 1,000 convicts in Louisiana and three other states that have refused to apply the court’s ruling to older juvenile lifers.

A spokesman for Cannizzaro’s office said the DA will join in a motion with Toca’s attorneys to withdraw the Supreme Court case.

Toca, appearing briefly in court Thursday morning, pleaded guilty to the manslaughter count under an “Alford” plea, meaning he did not admit guilt but conceded that strong evidence could have led to his conviction.  He returned to Angola State Penitentiary for processing, with his release expected late Thursday or Friday.

Newly elected Criminal District Court Judge Byron Williams granted the joint motion in a case that the Innocence Project New Orleans had pursued on Toca’s behalf for more than a decade.  DA’s Office spokesman Christopher Bowman credited a warming relationship with Innocence Project attorneys, along with Toca’s productive years behind bars, for the decision to let him go free on the reduced charges.

Bowman called it “a just outcome,” also citing the vehemence of Batiste’s family in urging Toca’s release and the fact he will remain on parole for another 30 years under the deal. “In light of all those facts, the district attorney believed he was no longer a public safety risk,” Bowman said. “The District Attorney’s Office ... is not afraid to take a look at older cases.”...

Bowman insisted that the DA’s decision to come to a deal on Toca’s release was unrelated to the pending U.S. Supreme Court case, in which Cannizzaro’s office had been gearing up to argue against the retroactive application of Miller v. Alabama.

The high court didn’t ban states from sentencing some young killers to life without parole. But the 5-4 majority opinion insisted that courts must first weigh a defendant’s youth, adding that “we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”  The court said “youth matters for purposes of meting out the law’s most serious punishments,” citing “children’s diminished culpability and heightened capacity for change” when compared with adults.

In legal filings, Cannizzaro’s office argued that it would be a fool’s errand to force local judges, years or decades later, to discern a long-ago juvenile’s capacity for change. Advocates for juvenile lifers argued that the task would be made easier because judges can review an inmate’s record while behind bars.  And they saw Toca’s case as a promising bellwether for what the high court justices might do....

According to the state, 272 Louisiana inmates had been sentenced as juveniles to life without the possibility of parole as of April 2013 — the bulk of them, like Toca, having been sentenced before the U.S. Supreme Court decision.  State Supreme Courts in Pennsylvania, Michigan and Minnesota also have found that Miller v. Alabama does not apply retroactively, setting up the fight at the U.S. Supreme Court.

Toca’s vacated conviction and release will leave the issue unresolved for now, said Cara Drinan, an associate professor of law at Catholic University of America.  Still, she expects the Supreme Court to take up the retroactivity question relatively soon in some other case, now that it has signaled its interest in settling the issue.  “For George Toca, this is a victory and a great thing,” Drinan said.  “For those of us looking at the bigger issue, and for the hundreds of people waiting for a resolution, we’ll have to wait.”

January 29, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Sentencing around the world | Permalink | Comments (7) | TrackBack

Examining the sources of an ever-aging US prison population

NA-CE465_AGING_9U_20150128190609This Wall Street Journal article, headlined "U.S. Prisons Grapple With Aging Population: More Middle-Age Offenders Are Entering or Re-entering Facilities, Research Shows," explores why and how the population of incarceration nation is aging.  Here are excerpts:

Criminal-justice experts often attribute the older prison population to harsher sentencing policies and antidrug laws adopted in the 1980s.  The conventional wisdom is that enforcement of these laws led to longer sentences and more time served, which, in turn, is rapidly driving up the average age of inmates.

New research, however, offers an alternative view: The population of graying prisoners has exploded in recent years largely because more offenders ... are entering or re-entering prison in middle age.  It is a finding that could force states to rethink their efforts to tamp down on the escalating costs of caring for older inmates.

“People are getting arrested and sentenced to prison at a higher rate in their 30s, 40s and 50s than they used to,” said Shawn Bushway, a public policy professor at the University at Albany who co-wrote a coming study on the aging of those incarcerated.

The average inmate generally costs $20,000 to $30,000 a year to incarcerate.  Elderly prisoners, often defined as those older than 50, cost as much as three times more, researchers estimate, because they are more likely to have chronic medical conditions that require expensive treatments.

The population of U.S. prisoners over the age of 44 grew more than 8% annually from 1991 to 2011 — four times the rate of prisoners under the age of 35, according to the Bureau of Justice Statistics, the research arm of the Justice Department.  The proportion of inmates 54 years or older nearly tripled in that time, from 3% to more than 8%.  At the end of 2013, about 270,000 U.S. inmates were 50 years or older, out of a total prisoner population of more than 1.5 million, according to BJS.

Mr. Bushway’s research, based on U.S. Census surveys of state prisoners spanning from 1974 to 2004, suggests the trend is linked to high rates of reported drug use among older inmates — particularly those who came of age in the 1980s ... and have cycled in and out of prison for much of their adult lives....

A separate study on aging prisoners, funded by the Bureau, analyzed data from South Carolina, North Carolina, New York and California, where the proportion of prisoners 50 years or older more than doubled since 2000.  The researchers, economist Jeremy Luallen and statistician Ryan Kling of consulting group Abt Associates, concluded that “rising admission age is the primary force driving the increase in the elderly group.”

The changing nature of offenses over time doesn’t explain the trend, nor do changes in sentencing severity, which had “virtually no impact” on the size of the group, they wrote. “Policy makers are missing an important part of the problem,” Mr. Luallen said in an interview. As states try to rein in costs of mass incarceration, Mr. Luallen said, they would do well to focus more on the flow of older people into the prison system than on reducing their sentences.

“Changing sentencing laws won’t affect” the increasing number of older prisoners, said John Pfaff, a professor at Fordham University School of Law, who studies mass incarceration. “You need to change the behavior of the district attorneys.”

The issue of recidivism continues to pose problems for state governments struggling to contain the costs of mass incarceration. A 2014 U.S. Bureau of Justice Statistics study that examined state prisoners released in 2005 found that about two-thirds were arrested for a new crime within three years.

Harsher laws, such as those that mandate a life sentence after a person is convicted of three felonies, indisputably have led to more time behind bars for some. Bryce Peterson, a researcher at the Urban Institute, said longer sentences have “some effect” on the aging prison population. “It would be misleading to downplay that too much.” Mr. Peterson said he believed that Messrs. Luallen and Kling would have found that the length of time served in prison played a larger role in the graying of the inmate population had their study looked back further than 2000.

January 29, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Tuesday, January 27, 2015

"Back to the Future: The Influence of Criminal History on Risk Assessment"

The title of this post is the title of this timely new paper by Melissa Hamilton now available via SSRN. Here is the abstract:

Evidence-based practices providing an empirical basis for predicting recidivism risk have become a primary focus across criminal justice decision points.  Criminal history measures are the most common and heavily weighted factors in risk assessment tools, yet is such substantial reliance fully justified?  The empirical and normative values placed on criminal history enjoy such commendation by criminal justice officials, practitioners, and the public that these practices are rarely questioned.  This paper fills the gap by introducing and exploring various issues from legal, scientific, and pragmatic perspectives.

As a general rule, a common assumption is that past behavior dictates an individual’s likely future conduct.  This axiom is often applied to criminal behavior, more specifically, in that prior offending is considered a primary driver to predict future recidivism.  Criminal justice officials have a long history of formally and informally incorporating risk judgments into a variety of criminal justice decisions, ranging from bail, sentencing, parole, supervisory conditions, and programming.  A more contemporary addendum represents empirically informed risk assessment practices that integrate actuarial tools and/or structured professional judgments.  Various criminal history measures pervade these newer evidence-based practices as well.  

Instead of presuming the value and significance of prior crimes in judging future recidivism risk, this Article raises and critically analyzes certain unexpected consequences resulting from the significant reliance upon criminal history in risk assessment judgments.  Among the more novel issues addressed include: (1) creating a ratchet effect whereby the same criminal history event can be counted numerous times; (2) resulting in informal, three-strikes types of penalties; (3) counting nonadjudicated criminal behaviors and acquitted conduct; (4) proportionality of punishment; (5) disciplining hypothetical future crime; (6) punishing status; and (7) inadequately accounting for the age-crime curve. In the end, criminal history has a role to play in future risk judgments, but these issues represent unanticipated outcomes that deserve attention.

January 27, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (8) | TrackBack

Friday, January 23, 2015

"Where Do We Go from Here? Mass Incarceration and the Struggle for Civil Rights"

The title of this post is the title of this recent essay by Robynn J.A. Cox  from the Economic Policy Institute.  Here is the essay's executive summary:

On the surface, crime and punishment appear to be unsophisticated matters.  After all, if someone takes part in a crime, then shouldn’t he or she have to suffer the consequences? But dig deeper and it is clear that crime and punishment are multidimensional problems that stem from racial prejudice justified by age-old perceptions and beliefs about African Americans.  The United States has a dual criminal justice system that has helped to maintain the economic and social hierarchy in America, based on the subjugation of blacks, within the United States.  Public policy, criminal justice actors, society and the media, and criminal behavior have all played roles in creating what sociologist Loic Wacquant calls the hyperincarceration of black men.  But there are solutions to rectify this problem.

To summarize the major arguments in this essay, the root cause of the hyperincarceration of blacks (and in particular black men) is society’s collective choice to become more punitive. These tough-on-crime laws, which applied to all Americans, could be maintained only because of the dual legal system developed from the legacy of racism in the United States. That is, race allowed for society to avoid the trade-off between societies “demand” to get tough on crime and its “demand” to retain civil liberties, through unequal enforcement of the law. In essence, tying crime to observable characteristics (such as race or religious affiliation) allowed the majority in society to pass tough-on-crime policies without having to bear the full burden of these policies, permitting these laws to be sustained over time.

What’s more, the history of racism, which is also linked to the history of perceptions of race and crime, has led society to choose to fight racial economic equality using the criminal justice system (i.e., incarceration) instead of choosing to reduce racial disparities through consistent investments in social programs (such as education, job training, and employment, which have greater public benefits), as King (1968) lobbied for before his assassination. In other words, society chose to use incarceration as a welfare program to deal with the poor, especially since the underprivileged are disproportionately people of color.

At the same time, many communities attempted to benefit economically from mass incarceration by using prisons as a strategy for economic growth, making the incarceration system eerily similar to the system of slavery. Given all of the documented social and economic costs of mass incarceration (e.g., inferior labor market opportunities, increases in the racial disparity in HIV/AIDS, destruction of the family unit), it can be concluded that it has helped to maintain the economic hierarchy, predicated on race, in the United States. In order to undo the damage that has been done, and in order to move beyond our racial past, we must as a nation reeducate ourselves about race; and then, as a society, commit to investing in social programs targeted toward at-risk youth. We must also ensure diversity in criminal justice professionals in order to achieve the economic equality that King fought for prior to his death. Although mass incarceration policies have recently received a great deal of attention (due to incarceration becoming prohibitively costly), failure to address the legacy of racism passed down by our forefathers and its ties to economic oppression will only result in the continued reinvention of Jim Crow.

January 23, 2015 in Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

US Sentencing Commission essentially giving up on fixing definition of "crimes of violence"

As noted in prior posts here and here, the US Sentencing Commission earlier this month publish proposed guideline amendments with some modest but significant possible revisions to the federal fraud sentencing guidelines.  One reason these modest proposed guideline changes could be the most consequential reform coming from the Commission this year is because, as noted at the very end of these remarks at by the USSC Chair Patti Saris, it appears the Commission has given up its effort to seek to improve the doctrinal problems surrounding another big part of the federal sentencing guidelines:

I did want to briefly address an issue that does not appear in the proposed amendments.  As I announced at the last public meeting, the Commission held a roundtable discussion this fall on the definition of “crimes of violence” and related terms.  We had hoped that we would be positioned to publish some proposals today as an outgrowth of that very informative roundtable, and we conducted considerable follow up work after that event. But ultimately, after much consideration of this issue internally and consultation with leading experts, the Commission concluded that, given the existing statutory scheme, any attempts by the Commission at this time to clarify these definitions or establish more consistency within the guidelines would likely only lead to more confusion and renewed litigation.  We are currently considering whether it would be helpful for the Commission to issue a report on this issue with recommendations for legislative fixes.

I am a bit disappointed and troubled that the USSC thinks the best way now to deal with all the confusion and litigation over some key guideline terms is just to give up trying to fix these terms. But I also understand the challenge the USSC faces given that these terms are so significant in federal statutes that the Commission cannot itself amend.  And, perhaps usefully, the Commission's struggles here might further embolden the Supreme Court to declare part of the Armed Career Criminal Act unconstitutionally vague as it reconsiders the pending Johnson case (as discussed here).

January 23, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, January 22, 2015

"Heroin addiction sent me to prison. White privilege got me out and to the Ivy League."

The provocative title of this post is the headline of this provocative Washington Post piece authored by Keri Blakinger. Here is how it gets started (with links from the original): 

I was a senior at Cornell University when I was arrested for heroin possession.  As an addict — a condition that began during a deep depression — I was muddling my way through classes and doing many things I would come to regret, including selling drugs to pay for my own habit.  I even began dating a man with big-time drug connections that put me around large amounts of heroin.  When police arrested me in 2010, I was carrying six ounces, an amount they valued at $50,000 — enough to put me in prison for up to 10 years.  Cornell suspended me indefinitely and banned me from campus. I had descended from a Dean’s List student to a felon.

But instead of a decade behind bars and a life grasping for the puny opportunities America affords some ex-convicts, I got a second chance.  In a plea deal, I received a sentence of 2½ years. After leaving prison, I soon got a job as a reporter at a local newspaper. Then Cornell allowed me to start taking classes again, and I graduated last month. What made my quick rebound possible?

I am white.

Second chances don’t come easily to people of color in the United States.  But when you are white, society offers routes to rebuild your life.  When found guilty of a drug crime, white people receive shorter sentences than black people. And even after prison, white men fare better in the job market than black men with identical criminal records.

It was prison that clued me in to just how much I benefit from systemic racism in our society. Until then, I hadn’t thought much about white privilege, which is exactly how privilege works — as a white person, I could ignore it.  But sitting behind bars, I saw how privilege touches almost everything, especially the penal system.

January 22, 2015 in Offender Characteristics, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (7) | TrackBack

Tuesday, January 20, 2015

Should we be concerned about the economic or human costs of Colorado's efforts to get Aurora killer James Holmes on death row?

The question in the title of this post is my first reaction to this lengthy Denver Post piece discussing what to expect now that jury selection is about to begin in the Colorado's high-profile capital trial of Aurora theater shooter James Holmes.  The piece is headlined "Aurora theater shooting trial could strain limits of jury service," and here are some excerpts:

After 50 days of testimony and deliberations, the jurors who decided the fate of Oklahoma City bomber Timothy McVeigh emerged haunted. "Have you ever seen 12 people cry?" one juror told reporters about deliberations for the 1997 verdict, handed down in a federal courtroom in Denver.  "I'm 24," another said, "But I don't feel 24 anymore."

Pummeled with horrific accounts of the attack, freighted with finding justice amid tragedy, the jurors had been pushed to near shattering. "I personally felt subject to the same sort of trauma that some of the victims and survivors went through," another said.

Now, imagine if that trial had lasted twice — even three times — as long.  The trial of Aurora movie theater gunman James Holmes, which starts Tuesday with jury selection, is expected to be so lengthy and arduous that it could strain the very process of justice it seeks to uphold.

Nine thousand potential jurors — one of the largest pools in American history — have been summoned for the case.  If picked, jurors will be ordered to serve for as long as five straight months, longer than any state criminal trial in memory in Colorado. They will weigh whether Holmes was sane in July 2012, when he killed 12 people inside the Century Aurora 16 movie theater and tried to kill 70 others, and, if they find he was, they will decide whether he should be executed.

For their service, they will be guaranteed a wage of only $50 a day, a rate that could plunge their income to near the federal poverty level.  Even harder, during what will likely be the most stressful time of their lives, they will be forbidden from talking to anyone about the experience — not their family or fellow jurors or counselors.  Until deliberations begin sometime late this year, the jurors will bear that stress in silence, despite a growing body of research that shows jury service on traumatic cases can lead to mental and physical illness and impact jurors' decision-making....

Since the 1930s, perpetrators of public mass shootings nationwide are more likely to die at the scene than to be captured, according to research by Minnesota Department of Corrections official Grant Duwe.  Of the 45 percent who were arrested, only a fraction ever faced a jury.  And even fewer of those were charged with killing in an attack as devastating to the community as Holmes is for the Aurora theater shooting.

William Bowers, a researcher for the Capital Jury Project at the State University of New York in Albany, likens the theater shooting trial to that currently taking place for one of the suspected Boston Marathon bombers.  "There's nothing really comparable to these cases in modern experience, in terms of duration of the trial and effect on the jury," Bowers said....

But, at its most extreme limits, jury service can become less of a duty and more of an ordeal, legal experts say.  Studies have shown that jurors in traumatic trials can suffer from insomnia, anxiety, anger and depression.  One study documented cases of jurors who broke out in hives, developed ulcers or increased their alcohol consumption while serving at trials. And after the trial is over, some jurors have said they experienced flashbacks....

In recognition of the strains of jury service, courts across the country increasingly offer counseling to jurors. Jon Sarche, a spokesman for the Colorado Judicial Branch, said counseling will be made available to jurors in the theater shooting case once the trial is over.  But — because judges routinely order jurors not to talk about the case with anyone, to protect the trial's integrity — counseling is almost never available to help jurors manage stress during the case.

While this piece effectively highlights some economic and human costs to be borne the jurors in this case, the question in the title of this post also suggests thinking about the economic and human costs sure to burden the lawyers and the court system throughout this case.  And, as the question in the title of this post is meant to highlight, these costs are all endured in service now only to having Holmes sentenced to death; inevitable appeals and other factors will likely mean Holmes is unlikely ever actually to be executed by Colorado for his crimes.

I suspect these kinds of costs and uncertainties explain (and clearly justify?) why the feds were willing to cut LWOP plea deals for other mentally-challenged mass killers like Ted Kaczynski (the Unibomber) and Jared Lee Loughner (the Tucson shooter).  But Colorado prosecutors in this case appear quite committed to enduring all these costs in service to trying to get James Holmes sentenced to death. 

Recent and older related posts (with lots of comments):

January 20, 2015 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Tuesday, January 13, 2015

"Georgia executes Vietnam veteran who killed a sheriff's deputy"

The title of this post is the headline of this extended CNN report on the first execution in the United States in 2015.  Here are the details:

Andrew Brannan, a decorated Vietnam War veteran convicted of murdering a 22-year-old sheriff's deputy in 1998, was executed Tuesday, said Gwendolyn Hogan, spokeswoman for the Georgia Department of Corrections.  Earlier in the day, the Georgia Supreme Court joined the state's parole board in declining to stop the execution....

Hogan said the court ordered execution was carried out at 8:33 pm ET.  She said a final statement was given, expressing remorse to the family of the slain deputy.

The state's high court had also denied Brannan's request for an appeal on the basis that it is unconstitutional to execute a person with his medical conditions and combat history.... Attorneys for the 66-year-old Brannan had hoped his sentence would be found unconstitutional.

His defense attorneys claim Brannan, who served in Vietnam in the early 1970s, was suffering from post-traumatic stress and bipolar disorder at the time of the shooting and was off his medication. In a petition filed Monday with Butts County Superior Court, Brannan's attorneys requested his life be spared because "executing American combat veterans whose service-related mental impairments played a role in subsequent violent conduct violates the Eighth and Fourteenth Amendments to the United States Constitution and analogous provisions of the Georgia Constitution."...

The killing of Laurens County Deputy Kyle Dinkheller was captured on the deputy's dash camera just outside Dublin, Georgia.... Brannan is seen in the video confronting Dinkheller after being pulled over for driving almost 100 mph in his pickup.

Brannan appears to be confrontational from the start, acting irrational as the deputy tells him to keep his hands out of his pocket.  He then mocks the deputy and at one point seems to dance around yelling, "Shoot me," at Dinkheller.  Brannan then yells that he is a Vietnam veteran.  He lunges at the deputy before he runs back to his truck, grabs a rifle and begins to shoot.

The video goes on to show a heated gunbattle as both men hide behind their vehicles for cover.  Bullets appear to pierce the windshield of the deputy's car.  Brannan's car door window shatters above his head.  In the video, Dinkheller and Brannan are shot and wounded in the battle.  Brannan advances on the deputy, and off camera, you hear the deputy scream before Brannan repeatedly shoots him and then flees the scene.  Dinkheller died, leaving behind a wife and child....

During the trial, attorney Kammer says the defense presented evidence that Brannan suffered from PTSD but claims that crucial testimony from a Veterans Affairs doctor treating him was never heard. His sentence was appealed, and a judge ordered a new sentencing trial, but that was later overturned by the Georgia Supreme Court.

Dinkheller's father, Kirk Dinkheller, posted on his Facebook page this month that "January 12, 2015 it will be 17 years since my son Kyle was murdered in the line of duty and on January 13, 2015 his killer will finally be held accountable.  Nothing will ever bring my son back, but finally some justice for the one who took him from his children and his family."

Some related posts:

January 13, 2015 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (17) | TrackBack

Monday, January 12, 2015

"Disgust, Dehumanization, and the Courts’ Response to Sex Offender Legislation"

A helpful reader alerted me to a notable article by Alexandra Stupple appearing in the Fall 2014 issue of National Lawyers Guild Review which has a title that also serves as the title of this post. The relative short article (which starts on page 8 of this pdf link) has the following introduction and conclusion:

Sex offenders have been subject to unprecedented restrictions and punishment.  The government’s treatment of sex offenders is a clear example of the dangers of laws derived from and upheld because of the emotion of disgust.  Disgust has led to a dehumanization of this category of people, which has led to a stripping of their constitutional rights.  The law’s treatment of sex offenders is a clear example of why the law should eschew employing the emotion of disgust during all proceedings.  In addition, the courts’, particularly the Supreme Court’s, treatment of the other branches’ actions regarding sex offenders is illustrative of why the law needs to insist upon empirical data in support of legislation and why the courts should not always defer to the other branches’ findings....

Today, all communities rightfully think of crimes such as child rape and molestation as the grave and heinous acts they are; however, a panic has ensued which has led to a squandering of public resources, the dehumanization of a swath of people, and the denigration of the Constitution.  For the protection of everyone’s constitutional rights, a conscious commitment by all lawmakers to use empirical data in their fact-finding and decision-making is required, even if done while feeling and expressing emotions like anger and contempt.  This may be the only way evidence-based practices and policies that actually protect the public from sexually violent persons will be born.

January 12, 2015 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Saturday, January 10, 2015

Should honoring vets and PTSD call for commuting a death sentence?

The question in the title of this post is prompted by this Reuters story headlined "Vietnam veteran in Georgia pleads to be spared the death penalty." Here are excerpts:

Lawyers for a decorated Vietnam War veteran due to be executed in Georgia next week say his life should be spared because he was suffering from a combat-related mental disorder when he killed a sheriff’s deputy in 1998.

Andrew Brannan's guilt is not disputed. He shot Laurens County Deputy Sheriff Kyle Dinkheller, 22, nine times during a traffic stop, a scene caught on tape by the deputy's patrol car camera.

Defense attorneys argue Brannan, 66, should not be put to death for behavior they say is linked to post-traumatic stress disorder triggered by his combat service. On Monday, they will ask the state Board of Pardons and Paroles to commute Brannan's sentence to life in prison without parole. “Commuting his sentence would honor his very meritorious service to this country,” said Brian Kammer, one of Brannan’s lawyers. “We should not be executing those we sent into harm’s way and who were deeply wounded, physically and mentally.”...

Brannan received Army commendations and a Bronze Star for his service as an officer, Kammer said. He was on full Army disability for PTSD and had been diagnosed with bipolar disorder before killing Dinkheller, the lawyer said.

Brannan, who had no prior criminal record, was driving 98 miles per hour on a Georgia highway when Dinkheller pulled him over in January 1998, according to court records. The video recording showed Brannan stepping out of his truck, cursing and telling the deputy to shoot him....

Brannan pleaded not guilty by reason of insanity at his trial. Some experts testified that during the shooting he suffered a flashback from combat, but a court-appointed psychiatrist said Brannan was sane and may have killed the deputy because he believed the officer was being disrespectful.

Brannan's execution is scheduled for Tuesday. He would be the first person put the death in the United States this year.

I am inclined to assert that this offender's decorated service on behalf of our nation as well as his undisputed mental problems indisputably means that Brannan is not one of the "worst of the worst" killers. For that reason, I would be inclined to support this defendant's commutation request.

Do others agree?

Some older related posts:

January 10, 2015 in Clemency and Pardons, Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (21) | TrackBack

SCOTUS orders new briefing and argument on ACCA's constitutionality in Johnson!?!?!

The US Supreme Court on Friday afternoon added a remarkable twist to what had been a small sentencing case, a case which had its (first) SCOTUS oral argument earlier this Term, via this new order:

13-7120 JOHNSON, SAMUEL V. UNITED STATES

This case is restored to the calendar for reargument. The parties are directed to file supplemental briefs addressing the following question: "Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U. S. C. §924(e)(2)(B)(ii), is unconstitutionally vague."  The supplemental brief of petitioner is due on or before Wednesday, February 18, 2015.  The supplemental brief of the United States is due on or before Friday, March 20, 2015.  The reply brief, if any, is due on or before Friday, April 10, 2015.  The time to file amicus curiae briefs is as provided for by Rule 37.3(a). The word limits and cover colors for the briefs should correspond to the provisions of Rule 33.1(g) pertaining to briefs on the merits rather than to the provision pertaining to supplemental briefs.  The case will be set for oral argument during the April 2015 argument session.

As some readers likely know, and as Will Baude effectively explains in this new post at The Volokh Conspiracy, "Justice Scalia has been arguing with increasing force that the Act is vague, and the reargument order suggests that there’s a good chance he may finally have convinced his colleagues that he’s right."

This strikes me as huge news, especially because I think any ruling that part of ACCA is unconstitutionally vague would be a substantive constitutional judgment that should get applied retroactively to hundreds (and potentially thousands) of federal prisoners serving mandatory minimum terms of 15 years or more. US Sentencing Commission data suggests that perhaps 5000 or more federal defendants have been sentenced under ACCA over the last decade, though I would guess the majority of these cases did not hinge on the ACCA subprovision that SCOTUS might now find unconstitutional.

January 10, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, December 29, 2014

Pennsylvania Supreme Court declares state's sex offender registration regulations violate juve offenders' due process rights

Via How Appealing, I see that the Supreme Court of Pennsylvania issued this majority opinion in In the Interest of J.B., J-44A-G-2014 (Pa. Dec. 29, 2014), declaring unconstitutional part of the state's sex offender registration laws (over a lone justice's dissenting opinion). Here is a portion from the start and end of the majority opinion:

In this case, we consider the constitutionality of provisions of the Sex Offender Registration and Notification Act (SORNA) as applied to juveniles.  42 Pa.C.S. §§ 9799.10-9799.41. Pursuant to 42 Pa.C.S. § 722(7), we review this case directly from the order of the York County Court of Common Pleas holding the statute unconstitutional as violative of the ex post facto clause, protections against cruel and unusual punishment, and due process rights through the use of an irrebuttable presumption.  In the Interest of J.B. et al., No. CP-67-JV-726-2010 (CP York Nov. 1, 2013).  After review, we affirm the determination that SORNA violates juvenile offenders’ due process rights through the use of an irrebuttable presumption....

Given that juvenile offenders have a protected right to reputation encroached by SORNA’s presumption of recidivism, where the presumption is not universally true, and where there is a reasonable alternative means for ascertaining the likelihood of recidivating, we hold that the application of SORNA’s current lifetime registration requirements upon adjudication of specified offenses violates juvenile offenders’ due process rights by utilizing an irrebuttable presumption.

December 29, 2014 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Sunday, December 28, 2014

Former Virginia Gov McDonnell upcoming sentencing sets out white-collar terms of debate

McdonnellThis lengthy local article from Virginia, headlined "U.S. seeks McDonnell sentence of 10 to 12 years," details the competing arguments being set forth in a high-profile federal white-collar sentencing slated for next month. Here are excerpts from the piece:

Prosecutors are asking that former Gov. Bob McDonnell, convicted of 11 corruption charges in September, be imprisoned for at least 10 years and one month to as much as 12 years and seven months when sentenced Jan. 6 by U.S. District Judge James R. Spencer.

In sentencing memorandums filed Tuesday, the U.S. Attorney’s Office asked for a term within the federal sentencing guideline range determined by the probation office, while McDonnell’s lawyers asked for 6,000 hours of community service instead of prison time and argued the guideline range should be 33 to 41 months.

“After serving as a prosecutor and attorney general, this defendant corrupted an office that few bribery defendants achieve, and then falsely testified and shifted blame for his actions before the jury that convicted him,” wrote Dana J. Boente, the U.S. attorney for the Eastern District of Virginia. McDonnell, the government wrote, “stands before this court as only the 12th governor in the United States — and the first governor of Virginia — to be convicted of a public corruption offense.”

McDonnell and his wife, Maureen, were convicted in a six-week trial in which the marriage and the former first lady were portrayed as troubled.  Maureen McDonnell was convicted of nine charges, one later thrown out, and will be sentenced Feb. 20.  Bob McDonnell testified on his own behalf, but his wife did not.  The McDonnells were indicted in January for accepting more than $177,000 in gifts and loans from Jonnie R. Williams Sr., the then-CEO of Star Scientific, in exchange for promoting a new dietary supplement product. Williams, a key government witness, was granted immunity....

In its 31-page sentencing memorandum, the government urged Spencer to adopt the findings in the presentencing report from the probation office and reject McDonnell’s objections.  Prosecutors argued that McDonnell abused his power and violated his duty to the people of Virginia.

“The defendant is fond of pointing out that under Virginia law, no limits on gifts to elected officials existed and that he thus claims that he was merely a ‘part of the culture of unlimited gifts that has permeated Virginia politics,’ ” prosecutors wrote. “But he was not convicted of accepting gifts; he was convicted of accepting bribes. And bribery has always been a violation of state (as well as federal) law,” they added.  The government said the presentencing report correctly factored in obstruction of justice based on what it termed McDonnell’s lies from the witness stand....

McDonnell’s 51-page sentencing position, also filed Tuesday, took a very different view of the case.  It said: “Bob McDonnell has devoted his life to public service, family, and faith. This offense is a total aberration in what was by all accounts a successful and honorable career.”

McDonnell argued the appropriate guideline range should be 33 to 41 months. “A sentence of imprisonment of any length, however, much less one of 10 years or more, would be a severely disproportionate punishment,” his lawyers contend.  “Instead, a variant sentence of probation with a condition of 6,000 hours of full-time, rigorous, unpaid community service at a remote location served over three years is ‘sufficient, but not greater than necessary,’ to provide a just punishment,” they wrote.

“An outcome in which Mr. McDonnell serves any time in prison ... while Mr. Williams suffers no criminal justice consequences at all would neither promote respect for the law nor provide a just resolution to this case,” McDonnell’s lawyers argued.

Much of McDonnell’s sentencing position is taken up with his biography, accomplishments, and service in the military and as a state legislator, Virginia attorney general and governor.  Seven appendixes, including hundreds of letters of support, were filed along with the document.

The memorandum notes the outline of the scheme for which he was convicted.  “Mr. McDonnell’s actual conduct, however, differs in critical ways from that of others who have been convicted under the same federal bribery laws,” McDonnell’s lawyers argued.  “Mr. McDonnell did not demand or receive cash payments from Mr. Williams.  He did not take briefcases of money or hide stacks of $100 bills in his freezer,” they wrote.  “Rather, the quid that the indictment charges that Mr. McDonnell or his family members received were gifts — a wedding gift to Mr. McDonnell’s daughter and several rounds of golf at Mr. Williams’ country club — as well as three loans at commercial rates that the McDonnells paid back with interest.”

While McDonnell’s decision to accept the items showed poor judgment, Virginia state ethics laws at the time permitted officials to accept unlimited gifts of that nature, McDonnell’s lawyers argued.  “Numerous state officials routinely took advantage of these laws and accepted luxury vacations, rounds of golf, sports tickets, dinners, and other things of value from donors and wealthy hangers-on.”...

The defense contends that McDonnell’s trial and conviction already act as powerful deterrents to criminal conduct by others, making imprisonment unnecessary.  “No elected official would want to live through the last year of Mr. McDonnell’s life,” his lawyers write.  McDonnell and his family “have already suffered tremendously,” the lawyers write. “His once-promising political career is dead,” and “his marriage has fallen apart.”

Defense lawyers wrote that McDonnell’s “sterling reputation in the community has been irreparably damaged,” he has lost his ability to practice law, he is likely to lose his state pension, “and he will have to sell his family home.”  The former governor’s lawyers also contend prison is unnecessary to protect the public because there is no risk McDonnell will commit any further crimes. “He is 60 years old and out of politics.”

Relatedly, this Washington Post article reports on some of the notable letters written to the sentencing judge in support McDonnell. The piece is headlined "Former Virginia governor Bob McDonnell’s downfall is wife’s fault, daughter says," and it provides this link to some notable character letters.

Prior related posts:

December 28, 2014 in Booker in district courts, Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Thursday, December 18, 2014

"End Solitary Confinement for Teenagers"

The title of this post is the headline of this New York Times op-ed authored by Ian Kysel. Here are excerpts:

Solitary confinement can be psychologically damaging for any inmate, but it is especially perverse when it is used to discipline children and teenagers.  At juvenile detention centers and adult prisons and jails across the country, minors are locked in isolated cells for 22 hours or more a day.  Solitary confinement is used to punish misbehavior, to protect vulnerable detainees or to isolate someone who may be violent or suicidal.  But this practice does more harm than good.  It should end.

A major study by the Department of Justice in 2003 showed that more than 15 percent of young people in juvenile facilities, some as young as 10, had been held in solitary.  My own research, for Human Rights Watch and the American Civil Liberties Union, suggested that the practice of putting teenagers in solitary was more widespread in adult jails and prisons.  A recent Justice Department investigation found that at any given time in 2013 as many as a quarter of adolescents held at New York City’s Rikers Island were in solitary confinement.  Dozens had been sentenced to more than three months in solitary.  Still others were held longer, for more than six months.

Only six states have laws on the books that prohibit certain forms of isolation in juvenile facilities.  No state — nor the federal government — has banned the solitary confinement of teens in adult jails and prisons....

A recent Justice Department review of suicides in juvenile facilities found that more than half of the minors who had killed themselves had done so in isolation.  And in adult jails, department data released this fall identified more than 40 teenagers who had committed suicide since 2000; the suicide rate for minors in adult prisons was twice as high as that for older inmates.  A recent study at Rikers Island found that adolescents there were significantly more likely to harm themselves....

Attorney General Eric H. Holder Jr. should immediately direct the Bureau of Prisons to outlaw the solitary confinement of juveniles.  The federal government already prohibits the detention of juveniles with adults in federal prisons (a rule that states should emulate).  Mr. Holder could also direct the bureau to develop new policies to strictly regulate any use of even short periods of isolation.

Mr. Holder could then direct the Justice Department’s Office of Juvenile Justice and Delinquency Prevention to promote these policies as model practices, much like the national guidelines on education in juvenile facilities that Mr. Holder and Secretary of Education Arne Duncan announced last week....

That the practice [of solitary confinement] is widespread remains a disturbing indicator of how poorly we treat the hundreds of thousands of minors arrested each year in the United States. They are still maturing into adulthood. Solitary confinement can sabotage both their rehabilitation and their growth. It should be banned.

December 18, 2014 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (1) | TrackBack