Tuesday, November 05, 2013
When and how will SCOTUS take up Miller retroactivity issues?The question in the title of this post is promoted by this local piece reporting on reactions to the Pennsylvania Supreme Court's decision last week (reported here) that its state teens given mandatory LWOP before the US Supreme Court's Miller ruling should not get any retroactive benefit from that decision. Here is an excerpt:
There seems little reason to doubt SCOTUS will be taking up this issue before too long. But when and how is a real interesting question, not only because the facts of the case taken up by the Justices could influence the public and legal discourse, but also because arguments about Miller retroactivity could (and I think should) prompt some reconsideration and modification of Teague habeas review jurisprudence.
Nicholas White was 17 when a judge sentenced him to life in prison without parole for killing his father, Robert Grant White, 43, in 1998 in their home along Route 356.
Last year, the Supreme Court declared such sentences unconstitutional, saying they amount to cruel and unusual punishment. But the Pennsylvania Supreme Court last week ruled, 4-3, that the opinion does not apply retroactively to cases such as White's that were final before June 2012.
The decision means White and more than 450 Pennsylvania inmates, including as many as 40 from Allegheny County, are not eligible for resentencing. “I can't believe that it's fair — that if your sentence came down one day, you get nothing, and if it came down the next day, you get a new hearing,” said Marc Bookman, director of the Atlantic Center for Capital Representation in Philadelphia.
“But there is a silver lining here, and that is that the Pennsylvania Supreme Court does have another round of review, and that is with the U.S. Supreme Court,” said Turtle Creek attorney David Chontos. He represents Jeremy Melvin, 26, of McKeesport, who was 16 in 2005 when a Mercer County judge sentenced him to life without parole for killing a counselor at George Junior Republic, a private residential juvenile treatment center.
Several legal experts said the case likely is bound for the Supreme Court, because Iowa, Mississippi and Illinois deemed the high court's ruling retroactive, although Pennsylvania, Minnesota, Michigan and Florida have said it is not.
Wednesday, October 30, 2013
Split Pennsylvania Supreme Court rules that Miller does not apply retroactively
Thanks to How Appealing, I see that the Supreme Court of Pennsylvania today finally handed down its long awaited ruling as to whether the hundreds of state teens given mandatory LWOP before the Supreme Court's Miller ruling would get any retroactive benefit from that decision. The 4-3 split decision consists of a this majority opinion, this concurring opinion, and this dissenting opinion.
Here is how the majority opinion concludes:
All Justices of this Court and the United States Supreme Court share the sentiment that “[d]etermining the appropriate sentence for a teenager convicted of murder presents grave and challenging questions of morality and social policy.” Miller, ___ U.S. at ___, 132 S. Ct. at 2477 (Roberts, C.J., dissenting, joined by Scalia, Thomas, and Alito, JJ.). Our role in establishing social policy in the arena is a limited one, however. Here, applying settled principles of appellate review, nothing in Appellant’s arguments persuades us that Miller’s proscription of the imposition of mandatory life-without-parole sentences upon offenders under the age of eighteen at the time their crimes were committed must be extended to those whose judgments of sentence were final as of the time of Miller’s announcement. See generally Geter, 115 So. 3d at 377 (“Clearly and unequivocally, the Supreme Court distinguished between the substantive determinations of a categorical bar prohibiting a ‘penalty for a class of offenders or type of crime,’ as in Roper and Graham, and the procedural determination in Miller that merely requires consideration of mitigating factors of youth in the sentencing process.” (quoting Miller, ___ U.S. at ___, 132 S. Ct. at 2471)). See generally LAFAVE, 1 CRIM. PROC. §2.11(e) (“Teague has made new rulings very rarely applicable retroactively on habeas review[.]”).
Here is a key part of start of the concurring opinion by the Chief Justice: "I write separately to express my own view of what, if anything, might be done to mitigate the seeming inequity that is a result of the High Court’s ruling in Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455 (2012). The 'seeming inequity' here arises from the fact that the prospect of an individualized, discretionary judicial determination of whether a juvenile murderer should ever be afforded parole eligibility depends solely upon the happenstance of the moment that the defendant’s conviction became final."
And here is the first sentence of the dissent: "While I find merit in much of the Majority’s analysis, I ultimately conclude that Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455 (2012), should apply retroactively to juveniles sentenced to life without parole on timely collateral as well as direct review because I find Miller to be an effectively substantive rule."UPDATE: How Appealing provides links via this posting to some local media coverage of this Cunningham ruling, including this Allentown Morning Call article which provides some sense of the impact and reactions to the ruling:
The decision upholds the sentence of Ian Cunningham, a man serving life in prison for a murder he committed when he was 17. It also affects as many as 450 Pennsylvania inmates including six from Lehigh County.
Ultimately, the question will have to be decided by the federal courts, and may end up back before the U.S. Supreme Court, said Kimberly Makoul, an Allentown attorney who represents Joseph G. Romeri, who is 35 years into a life sentence for bludgeoning to death an 80-year-old city woman in 1978, when he was 16. "There is still hope," Makoul said. "It's not over yet and all hope certainly isn't lost."
Marsha Levick, an attorney with the Juvenile Law Center in Philadelphia, said the Pennsylvania high court's decision misses the ethical importance of the federal decision. "When the U.S. Supreme Court puts down a marker … it is morally unconscionable to leave any juvenile offender on the other side of that marker," she said....
The Pennsylvania court's decision was welcomed by families whose loved ones were killed by juveniles. Since the federal decision, they have been bracing for new sentencing hearings that they feared would reopen old wounds by forcing them to relive painful memories. "It's really good to hear. Really," said Darryl Romig, whose 12-year-old daughter, Danni Reese, was raped and strangled in 2003 in Allentown by a 17-year-old killer who received an automatic life sentence.
Brian A. Bahr, now 27 and jailed at the State Correctional Institution-Mahanoy, is among six once-young killers in Lehigh County whose appeals were put on hold pending Cunningham's case. "I'm just glad that he doesn't have the chance to be resentenced," Romig said in a telephone interview. "He did what he did and he deserved what he got."
Do lead exposure realities continue to best explain modern crime-rate realities?Every time I see reports new reports about crime rates in the United States or in certain regions, I cannot avoid continuing to think about the interesting research connecting crime rates and childhood exposure to lead. Against that backdrop, I was pleased that Rick Nevin, a Senior Economist at ICF International, sent me this lengthy e-mail discussing his research and writing on this topic:
I want to thank you for yourJanuary blog about the Mother Jones article discussing my lead and crime research. I also want to let you know that I have several posts at www.ricknevin.com that update my earlier analyses, and are closely related to recent posts:Your October 28 post about the NYT editorial on "Why Prisons Are Shrinking" is related to my paper on The Plummeting USA Incarceration Rate showing that the recent incarceration rate decline reflects much steeper declines for younger adults (ages 18-30) born across years of declining lead exposure, partly offset by rising incarceration rates for older adults born across years of pandemic lead poisoning.
Your October post on NYC murder rates is directly related to my post on Why is the Murder Rate Lower in New York City?You had two posts in October about 2012 FBI and BJS data showing relatively stable crime rates related to my recent Lead Poisoning and Juvenile Crime Update paper showing that juvenile arrest rates are falling to record lows since 1980, reflecting ongoing declines in lead exposure over the 1990s, while arrest rates since 1980 have increased for older adults. This paper also updates my crime trend graphs for Britain and Canada showing the predictive power of earlier lead exposure trends, with the same relationship between lead exposure and crime trends and the same shifts in arrest rates by age observed in the USA. I also have a recent paper showing how lead exposure trends can explain Juvenile Arrest Rate Trends by Race and Gender
I also have a post on Lead Exposure and Murder in Latin America and a longer paper called The Answer is Lead Poisoning that updates and integrates findings from several of my related peer-reviewed studies. All of the questions at The Questions link to this same paper.
I know the Kevin Drum story in Mother Jones seemed new and speculative to most readers, but there is actually a large body of research now supporting this relationship, and I have links to many peer-reviewed studies in my posted papers. I don’t know of any other criminology theory that can explain both the rise and fall of crime in so many places -- and different trends by age, race, and gender -- or any theory that has so accurately predicted ongoing crime trends in so many different places for so many years. I hope you will consider bringing some of this information to a broader audience through your blog, and I would welcome your use of any text or graphs from my posted papers.
Some recent related posts:
- Should we thank unleaded gas and the EPA for the great modern crime decline?
- Effective Washington Post commentary talks up great (and still puzzling) crime decline
- Uh-oh: BJS reporting significant spike up in violent and property crime for 2012
- FBI releases 2012 crime statistics showing stability in relatively low crime rates
- New National Academy of Sciences effort seeking to unpack the crime decline
Tuesday, October 29, 2013
Detailing new state reform efforts to ensure kids get treated as kids by criminal justice systemToday's New York Times has this big story about modern juvenile justice reforms under the headline "A Bid to Keep Youths Out of Adult Prisons." The piece is mostly focused on a recent reform in Colorado, but here is an excerpt discussing the national trends:
In a reversal of the tough-on-crime legislation that swept the nation in the late 1980s and ’90s, nearly half of the states have now enacted one or more laws that nudge more young offenders into the juvenile justice system, divert them from being automatically tried as adults and keep them from being placed in adult jails and prisons.
Sarah Brown, a director of the criminal justice program at the National Conference of State Legislatures, said the shift stems from a decline in juvenile crime, concerns about the costs of adult prisons and a growing understanding of adolescent brain development showing that the young have a greater potential for rehabilitation.
The Supreme Court has increasingly taken neurological research into account on juvenile justice issues — most recently in a 2012 case, Miller v. Alabama, which barred mandatory life sentences without the possibility of parole for those who committed their crimes before they turned 18. Justice Elena Kagan’s majority opinion in the case cited adolescents’ “diminished culpability and heightened capacity for change.”
Eleven states, including Pennsylvania, Texas and Virginia, have passed laws that keep most young offenders out of adult jails and prisons. Eight states, including California, Missouri and Washington, passed laws that alter mandatory minimum sentencing for young offenders charged as adults. Four — Connecticut, Illinois, Massachusetts and Mississippi — have broadened the powers of their juvenile courts, enabling them to take cases of juveniles who would have automatically been tried as adults. And 12 states, including Arizona, Nevada, Ohio and Utah, have adjusted the laws governing the transfer of young offenders into the adult system in ways that make it more likely that they will be tried as juveniles.
Many of these bills have passed with bipartisan support in states both Republican and Democratic and with the testimony of the young who are affected and their families, said Liz Ryan, the president of Campaign for Youth Justice, which recently issued a report on the shifts.
October 29, 2013 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack
Wednesday, October 23, 2013
Should Congress tell all states and localities they many never employ certain ex-offenders in their public schools?The question in the title of this post is prompted by this new AP story headlined "House Votes for School Checks for Sex Offenders." Here are is the backstory:
Public schools would be barred from employing teachers and other workers convicted of sexual offenses against children or other violent crimes under a bill the House approved Tuesday.
The measure would require school systems to check state and federal criminal records for employees with unsupervised access to elementary and secondary school students, and for people seeking those jobs. Workers refusing to submit to the checks would not be allowed to have school positions.
A 2010 report by the Government Accountability Office, the auditing arm of Congress, cited one estimate that there are 620,000 convicted sex offenders in the U.S. It also found that state laws on the employment of sex offenders in schools vary. Some require less stringent background checks than others, and they differ on how people with past convictions are treated, such as whether they are fired or lose their teaching license.
The bill has run into objections from major teachers' unions like the National Education Association and the American Federation of Teachers. In letters to lawmakers, their criticisms included concerns that the measure might jeopardize workers' protections under union contracts. In addition, the NEA wrote that criminal background checks "often have a huge, racially disparate impact" — a reference to critics' complaints that minorities make up a disproportionately high proportion of people convicted of crimes.
Despite those concerns, the House approved the measure by voice vote. "Keeping children safe is not a partisan issue," said the chief sponsor, Rep. George Miller, D-Calif. "It's a moral obligation."
"Every school employee, from the cafeteria workers to the administrators, to janitors to the teachers, principals and librarians, that every one" is subject to background checks including the FBI fingerprint indentification system to the national sex offender registry, said Rep. Todd Rokita, R-Ind.
No one said they opposed the bill. But Rep. Keith Ellison, D-Minn., said that by imposing lifetime bans and ignoring the ability of people to overcome criminal backgrounds, "We do run the risk of doing a good thing, but doing too much of a thing." He said he'd continue seeking changes in the measure as it moves through Congress....
The bill would forbid public schools to employ people convicted of crimes against children including pornography, or of felonies including murder, rape, spousal abuse or kidnapping. It would bar school districts and state education agencies from transferring workers who have engaged in sexual misconduct with minors to another location. The measure would also apply to contractors who work at schools.
Especially as this bill moves to the Senate, I wonder how tea party conservatives like Senators Cruz and Lee and Paul are likely to look at this seemingly significant intrusion by the federal government into state and local education and employment authority. If applied broadly, it sounds as though this bill would preclude someone convicted decades earlier of public indecency or child abuse from serving as a janitor or construction worker in any public school in any state. Whatever one might think about a state adopting such a rule for its own schools, but it seems like quite an intrusion into state authority for the feds to require this rule for all states and localities nationwide.
Tuesday, October 22, 2013
In dissent, Judge Bright laments Eighth Circuit affirmance of 115 months in prison PLUS two life sentences for repeat bank robber
Dissenting from a panel affirmance today in US v. Scott, No. 12-3131 (8th Cir. Oct. 22, 2013) (available here), Judge Bright expressed these (and other) notable points about what he clearly considers an unreasonable sentence:
The sentence of 115 months in prison plus two life sentences imposed on Michael Scott by the district court represents a prime example of what may be called “gilding the lily.” It is unreasonable and excessive. For all practical purposes, the roughly 39-year mandatory minimum sentence in this case — for a defendant who is 56 at the time of sentencing — would have itself amounted to a sentence of life imprisonment. I ask what more is required. The sentence in this case is unreasonable and simply represents an effort to send a message of being tough on crime. But that’s not the purpose of a sentence....
As an appellate judge, I add another observation. The federal courts are now entering a new era of sentencing. Eric H. Holder, Jr., the United States Attorney General, has recently called for a new approach to criminal sentencing in the federal courts. The Attorney General emphasized the harsh reality that, as it stands today, “our system is in too many respects broken.” Eric Holder, Attorney General of the United States, United States Department of Justice, Remarks at the Annual Meeting of the American Bar Association’s House of Delegates (Aug. 12, 2013), available at http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.html. Indeed, I agree with the Attorney General that “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” Id.
The clearly excessive sentence imposed in this case illustrates very graphically the broken criminal justice system in the federal courts. Here, had Scott received a 39-year sentence — which the parties agreed was the mandatory minimum sentence in this case — he would be in prison until he was 95 years old. Yet the district court felt the need to impose a 115-month sentence followed by two life sentences. The district court justified the sentence by emphasizing Scott’s “criminal history and the need to protect the public.” But just how much protection does the public need from a 95- year-old man — assuming Scott were to live that long? According to the National Vital Statistics Reports, at the time he was sentenced, Scott was expected to live for another 27 years, or until he is about 83 years old.... A 39-year sentence would have been more than enough to serve as a deterrent and an appropriate punishment for a series of bank robberies, during which no one fired a gun and no one was physically injured. But instead, the district court imposed a substantially unreasonable sentence that is greater than necessary to accomplish the goals of sentencing. See 18 U.S.C. § 3553(a). This sentence is not justified and is improper and I will not affirm a sentence that is obviously too harsh and imposed simply to appear tough on crime.
I would reverse and remand this case with instruction to the district court to impose a sentence no greater than a 39-year sentence.
Sunday, October 20, 2013
"Alleyne v. United States, Age as an Element, and the Retroactivity of Miller v. Alabama"The title of this post is the title of this intriguing Essay by Beth Colgan recently published on the UCLA Law Review's on-line supplement. The introduction previews the issues and argument in the piece:
The U.S. Supreme Court announced in Miller v. Alabama, that the mandatory imposition of life in prison without the possibility of parole against juveniles is cruel and unusual punishment in violation of the Eighth Amendment. The million-dollar question is whether it would do any good for the over 2000 juveniles who had previously been so sentenced. For those jurisdictions that follow or rely heavily on the dictates of retroactivity set out by the Supreme Court in Teague v. Lane, the touchstone of Miller’s retroactivity hinges on whether the rule it announced is substantive — and therefore retroactive — or procedural.
The Miller opinion provides no clear guidance. On the one hand, the opinion sounded in procedure, with the Court requiring “that a sentencer follow a certain process — considering an offender’s youth and attendant characteristics — before imposing a particular penalty.” On the other hand, the opinion sounded in substantive law, in that it required fundamental changes in criminal laws that mandate the imposition of life without parole in homicide cases where the crime was committed before the defendant’s eighteenth birthday. Prior to Miller, states and the federal government could require that a court impose a sentence of life without parole on a juvenile without consideration of the defendant’s youth. But the Miller Court rejected such mandatory sentencing, reasoning that “age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences,” a juvenile’s history of abuse, the role the juvenile played in the homicide, the existence of peer pressure, the difficulties juveniles have navigating the legal system, and juveniles’ unique capacity for rehabilitation are all constitutionally relevant and therefore a sentencer must have an opportunity to consider such facts at sentencing.
The quasi-substantive/quasi-procedural nature of the opinion created a conundrum for lower courts assessing the retroactivity of the decision. The answer to this puzzle may come from an unlikely source: the Court’s Sixth Amendment jury trial jurisprudence, and particularly its June 2013 interpretation of that right in Alleyne v. United States. Though unrelated to both juvenile sentencing and the question of retroactivity, the Alleyne Court did determine that where the existence of a fact dictates whether a mandatory minimum applies, the fact is, in effect, an element of the underlying offense. This Essay extrapolates from the Alleyne holding to argue that Miller’s requirement that sentencers consider age and its attendant consequences in cases involving juveniles — making age at the time of the offense a fact that triggers whether the mandatory minimum sentence of life without parole applies — converts age to an element of the underlying offense, rendering Miller a substantive rule that must be applied retroactively.
Saturday, October 19, 2013
Talk in Georgia about modifying its (too) tough approach to Atkins death penalty issueThis new AP article, headlined "Ga. to review tough death penalty provision," reports about talk of possible reform to Georgia's application of the constitutionally mandated death penalty exception for the mentally retarded. Here are excerpts:
The state that was the first to pass a law prohibiting the execution of mentally disabled death row inmates is revisiting a requirement for defendants to prove the disability beyond a reasonable doubt — the strictest burden of proof in the nation.
A state House committee is holding an out-of-session meeting Thursday to seek input from the public. Other states that impose the death penalty have a lower threshold for proving mental disability, and some don't set standards at all....
Georgia's law is the strictest in the U.S. even though the state was also the first, in 1988, to pass a law prohibiting the execution of mentally disabled death row inmates. The U.S. Supreme Court followed suit in 2002, ruling that the execution of mentally disabled offenders is unconstitutional....
Thursday's meeting comes against the backdrop of the case of Warren Lee Hill, who was sentenced to die for the 1990 beating death of fellow inmate Joseph Handspike, who was bludgeoned with a nail-studded board as he slept. At the time, Hill was already serving a life sentence for the 1986 slaying of his girlfriend, Myra Wright, who was shot 11 times. Hil
l's lawyers have long maintained he is mentally disabled and therefore shouldn't be executed. The state has consistently argued that his lawyers have failed to prove his mental disability beyond a reasonable doubt. Hill has come within hours of execution on several occasions, most recently in July. Each time, a court has stepped in at the last minute and granted a delay based on challenges raised by his lawyers. Only one of those challenges was related to his mental abilities, and it was later dismissed.
A coalition of groups that advocate for people with developmental disabilities pushed for the upcoming legislative committee meeting and has been working to get Georgia's standard of proof changed to a preponderance of the evidence rather than proof beyond a reasonable doubt. Hill's case has drawn national attention and has shone a spotlight on Georgia's tough standard, they say.
The process has taken an enormous amount of education, said Kathy Keeley, executive director of All About Developmental Disabilities. Rather than opposition to or support for the measure she's pushing, she's mostly encountered a lack of awareness about what the state's law says, she said. The groups are hoping to not only express their views at the meeting, but also to hear from others to get a broader perspective, Keeley said. The changes should be relatively simple and very narrow in scope, targeting only the burden of proof for death penalty defendants, she said.
Ashley Wright, district attorney for the Augusta district and president of the state District Attorneys' Association, said prosecutors question the logic of changing a law that they don't see as problematic and that has repeatedly been upheld by state and federal courts. "The district attorneys don't believe that you change a law for no reason and, in this case, the law appears to be working," she said. "Where has a jury done a disservice? Why are we putting all our eggs in the defendant's basket and forgetting that there's a victim?"
Prosecutors agree that the mentally disabled shouldn't be executed, and defendants are frequently spared the death penalty when there is proof of their mental disability supported by appropriate documentation from credible and reliable experts, she said.
But Hill's lawyer, Brian Kammer, argues that psychiatric diagnoses are complex, and "experts who have to make diagnoses do not do so beyond a reasonable doubt, they do it to a reasonable scientific certainty." Furthermore, he said, disagreements between experts make the beyond-a-reasonable-doubt standard nearly impossible to meet.... In Hill's case, a state court judge concluded the defendant was probably mentally disabled. In any other state, that would have spared him the death penalty, Kammer said.
Monday, October 14, 2013
Florida legislature told to "End confusion on juvenile sentencing"The title of this post is drawn from the headline of this effective recent editorial from the Tampa Bay Times, which makes these points about the post-Miller mess in Florida:
By reinstating the original sentence of life in prison without parole for Nicholas Lindsey on Friday, a Pinellas-Pasco Circuit Court judge entered muddy legal waters. Lindsey and other juveniles convicted of murder continue to be sentenced under a state statute that is now unconstitutional as applied to them. There is no clear road map for judges, because the Florida Legislature has failed to bring state law into conformance with a U.S. Supreme Court ruling. Lindsey's reconsidered sentence for shooting and killing a St. Petersburg police officer will likely be challenged, wasting resources and prolonging the pain for the victim's family. Had the Legislature acted responsibly, the courts would not be operating in the dark and creating law as they go.
State courts are puzzling through what to do with juveniles who were convicted of first-degree murder and sentenced under state law that provides for a death sentence or life in prison without the possibility of parole. Minors cannot be sentenced to death because of a 2005 U.S. Supreme Court ruling. Last year, the court ruled that a life sentence without parole cannot be mandatory for juvenile offenders — people who committed their crime before reaching 18 years old. The court said that in light of a young person's lack of maturity and capacity to change as he grows up, courts must be permitted to take these circumstances into account in sentencing. Florida law gives judges no discretion to impose a lesser sentence....
Other circuit court judges have ruled inconsistently. A judge in Hillsborough County recently resentenced Amer Ejak, now 20 years old, to life without parole for clubbing and strangling a man in 2009 — the same sentence Ejak originally received. But compare that to a teen murderer in Pasco County who was sentenced last month to life in prison with the possibility of parole after 25 years, even though state law makes no provision for it. An August ruling by the 5th District Court of Appeal in Daytona Beach said that the only legal sentence for juveniles guilty of capital murder is life with the possibility of parole after 25 years, but that decision is only controlling precedent for part of the state.
The Florida Legislature surely knew that by not rewriting state law to reflect the U.S. Supreme Court ruling and giving judges the opportunity to impose lesser sentences it would cause confusion and result in disparate treatment of juvenile offenders across the state. Lawmakers shifted their responsibility to the courts. The Florida Supreme Court will have to bring clarity to the law. In the meantime, trial courts faced with resentencing some of Florida's more than 200 inmates who were convicted and sentenced on murder charges should follow the U.S. Supreme Court's ruling as best they can.
October 14, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Friday, October 11, 2013
Record-long political corruption sentence for former mayor of DetroitAs reported in this New York Times article, headlined "Kwame M. Kilpatrick, Former Detroit Mayor, Sentenced to 28 Years in Corruption Case," a remarkable case of political corruption culminated yesterday in a remarkable federal sentence. Here are excerpts from the press account of the sentencing:
Kwame M. Kilpatrick, the former mayor of Detroit, stood before a federal judge on Thursday and apologized for putting the people of his city through a corruption scandal so vast that prosecutors say it helped accelerate Detroit’s march toward bankruptcy. “They’re hurting,” Mr. Kilpatrick said. “A great deal of that hurt I accept full responsibility for.”
They were solemn words from the formerly boisterous figure, a bear of a man at 6 feet 4 inches who many believed would lead Detroit out of its long economic downturn. But on Thursday he stood slouched, wearing a tan prison uniform instead of the flashy suits he once favored. Court officers replaced the entourage of bodyguards that used to follow him around. The diamond that once studded his ear, an emblem of his reputation as the “hip-hop mayor,” was gone.
Then, declaring an end to the bribery and thieving that marked the Kilpatrick administration, Judge Nancy G. Edmunds of United States District Court imposed the sentence prosecutors had sought: 28 years in prison.
Mr. Kilpatrick, 43, was convicted in March of two dozen counts that included charges of racketeering and extortion, adding his name to a list of at least 18 city officials who have been convicted of corruption during his tenure. His punishment ranks among the harshest major state and local public corruption cases. Lawyers for Mr. Kilpatrick said that they intend to file an appeal of the convictions and sentence.
The hearing came at a sobering moment for the city he once led, which is now remaking itself in bankruptcy court as residents wrestle over whom to blame for the fiscal mess. For Detroiters, Mr. Kilpatrick’s meteoric fall — from potential savior of a struggling city to prison-bound symbol of financial mismanagement — may be the closest they will get to holding past leaders accountable for decades of disappointment and poor fiscal decisions....
In 2008, Mr. Kilpatrick resigned after he lied under oath during a police whistle-blower lawsuit and approved an $8.4 million settlement to try to cover it up. After pleading guilty to charges of obstruction of justice, Mr. Kilpatrick served four months in jail and was ordered to pay $1 million to the city. He was soon behind bars again for hiding assets from the court and telling a judge that he could afford to pay only $6 a month in restitution.
The former mayor and Bobby W. Ferguson, a city contractor and a friend, were indicted in 2010 on sweeping federal corruption charges. All told, prosecutors contend that Mr. Ferguson received $73 million worth of city contracts as a result of an extortion scheme that involved Mr. Kilpatrick, netting $9.6 million in illegal profit. Mr. Ferguson was convicted of nine counts and will be sentenced on Friday. “The amount of crime, it was astonishing and it had a huge impact on this city,” Mark Chutkow, one of the prosecutors, said as he left the courthouse on Thursday.
Mr. Kilpatrick’s lawyer, Harold Z. Gurewitz, who pushed for a sentence of no more than 15 years, argued in court that Mr. Kilpatrick was being unfairly targeted as a scapegoat for Detroit’s insolvency, with people trying to “send him out with the sins of the city over the last 50 years.” The sentence, he said in an interview later, was tougher than necessary and stiffer than some people get for violent crimes.
Among some of the highest penalties for recent public corruption convictions, James C. Dimora, former commissioner of Cuyahoga County in Ohio, was sentenced last year to 28 years in prison for racketeering and bribery. A year before, Rod R. Blagojevich, former governor of Illinois, was sentenced to 14 years in prison for convictions that included trying to sell the Senate seat President Obama left open when he went to the White House.
In her ruling on Thursday, Judge Edmunds said her decision was another strong warning to elected officials. “That way of business is over,” she said. “We’re done. We’re moving forward.”
Tuesday, October 08, 2013
How should the law — federal or state — deal with a 10-year-old serious sex offender?The question in the title of this post is prompted by this new article from the Wall Street Journal about a remarkable federal juvenile prosecution. The article is headlined "Federal Youth Case on Trial: Prosecution of 10-Year-Old on Sex Charges Stokes Debate Over Juvenile Justice." Here is how it starts:
Two years ago federal prosecutors won a delinquency finding against a boy accused of engaging in sex acts when he was 10 years old with other young boys on an Army base in Arizona—one of the youngest defendants ever pursued by the U.S. Justice Department.
The case, now being reviewed by the Ninth Circuit U.S. Court of Appeals, could open a new front in a long-running debate about how to handle juvenile sex offenders, whose cases generally have been tried in state, not federal, courts. The records are sealed because the defendant was tried as a juvenile, but the case came to light in September at an appellate hearing in San Francisco that was open to the public.
The boy's appeal involves a thorny legal question: Should children be prosecuted for sex acts with other children under a federal law that the boy's lawyers say was designed to target adult predators? The fight also highlights a broader debate over tagging juveniles as criminal sex offenders, a label that can land them a spot on registries that track offenders and limit where they can live.
The boy was found delinquent — guilty in juvenile-court parlance — on charges of aggravated sexual abuse against five boys between the ages of 5 and 7, under a statute that makes it illegal to engage in a sexual act with a person younger than 12 regardless of whether physical force is involved. The boy was sentenced to five years' probation, including mandatory psychological treatment, lawyers on the case said. He must also register as a sex offender in certain states, according to his lawyer.
"I think this is really overreaching on the part of the government," Keith Hilzendeger, a federal public defender representing the boy, said in an interview. He added that he had "never heard of a federal case where a person is 10."
Assistant U.S. Attorney Bruce Ferg said outside the courtroom that federal prosecutors took the case because of "the severity of the conduct" and because it took place on Fort Huachuca, the Army base where the boys lived with their families. "My opinion is this is the best thing that could've happened to the kid," said Mr. Ferg, adding that the case included allegations of anal penetration, repetitive behavior and threats. He said that prosecutors considered, "What can we do with this child to make sure this doesn't happen again?"
"Native American Sentencing Disparity and the Case of Dana Deegan"
The title of this post is the title of this notable event taking place next week at the University of North Dakota School of Law. Long-time readers may vaguely recall this 2010 post about the Eighth Circuit panel's split ruling affirming the defendant's within-guideline sentence in US v. Deegan, No. 08-2299 (8th Cir. May 25, 2010) (available here). I called the Deegan case remarkable in part because of the criminal offense (second-degree murder of a newborn due to neglect), in part because of the offender (the newborn's mother, a Native American who has suffered a long history of physical and sexual abuse), and in part because of a must-read 50+ page dissent by Judge Myron Bright.
I am very pleased that the (under-explored) sentencing issues spotlighted by one case and one dissent has now prompted a full panel discussion. And I am very sad that I am unable to skip out on all my classes to head out to Grand Forks for this event; the topics and speakers looks like it would be worth the trip:
Schedule of Speakers:
Overview of the Disparity Problem and its Origins
- BJ Jones, Director, Tribal Judicial Institute & Chief Justice of the Turtle Mountain Tribal Court of Appeals
- Chris Ironroad, Associate Attorney at Sonosky, Chambers, Sachse, Endreson & Perry, LLP
Impact of Disparity on Native Americans - The Case of Dana Deegan
- Judge Myron H. Bright, United States Court of Appeals for the Eighth Circuit
- Judge David E. Ackerson, St. Louis County, Minnesota
- Sarah Deer, Assistant Professor of Law, William Mitchell College of Law
- Marmie Jotter, sister of Dana Deegan and licensed psychotherapist
How the Guidelines Unfairly Treat Domestic Violence Victims
- Radmilla Cody - Ms. Navajo Nation 1997-98 and recording artist
Sunday, October 06, 2013
"Should Paris Hilton Receive a Lighter Prison Sentence Because She's Rich? Evidence from a Survey Experiment"The title of this post is the title of this intriguing article now available via SSRN authored by Josef Montag and Tomáš Sobek. Here is the abstract:
Different people experience the same punishment in with differing intensity. Some legal scholars are proposing that improving scientific knowledge and progressing technologies, such as fMRI, need and should be incorporated in our penal systems. This would facilitate calibrating the punishment not only to the crime but also to the offender’s persona, so that different people experience the same punishment for the same crime. However, such a substantial change in the criminal law and policy requires legitimacy and popular approval.
We run a simple pilot experiment in order to ascertain whether such approval is in sight. We found that it may be in the case of pecuniary punishments. With regard to incarceration policies, however, the possibility of popular acceptance of such changes seems remote. This finding presents a potential challenge to the literature and may complicate the implementation of suggested reforms. We aim to extend our study to investigate the factors behind this divergence and to check robustness of our experiments in Germany and the US.
Friday, October 04, 2013
Third Circuit concludes juves serving LWOP made "prima facie showing that Miller is retroactive"As reported in this AP article, headlined "3 Lifers Win Ruling in Juvenile Sentencing Case," the Third Circuit yesterday handed down an important, but nuanced, ruling concerning the retroactive application of the Supreme Court's Eighth Amendment ruling in Miller concerning mandatory LWOP sentencing for juvenile offenders. Here is a summary of the ruling and some initial reactions thereto via the AP:
Three men who have been serving life sentences since they were juveniles won a fresh chance to convince judges they deserve to be resentenced under a decision Thursday by the federal appeals court based in Philadelphia.
The 3rd U.S. Circuit Court of Appeals said there was at least some reason to think last year's U.S. Supreme Court decision in the case of Miller v. Alabama, throwing out mandatory life without parole sentences for juveniles, should be applied retroactively.
The court stressed its decision is tentative and made under a standard that means there is enough possible merit to warrant a full exploration of the matter. The defendants must still convince the district judges they should be resentenced.
Defendants Michael J. Pendleton and Franklin X. Baines are in Pennsylvania prisons, while defendant Corey Grant is serving life in New Jersey.
Baines' lawyer, David R. Fine, said the decision means the appeals court "agreed there's at least an argument that Miller is retroactive." Baines is "going to have to convince that judge that Miller applies retroactively," Fine said. "And if he convinces the judge of that, obviously, there can be appeals."
The opinion noted a split in similar decisions being made by other federal circuit courts across the country, and Tasha Jamerson, a spokeswoman for the Philadelphia district attorney's office, called it an issue "that will be finally resolved by the United States Supreme Court."
Her counterpart in Pittsburgh said the Allegheny County district attorney's office might appeal to the U.S. Supreme Court. "We're going to talk to Philadelphia," said Mike Manko, spokesman for Allegheny County District Attorney Stephen Zappala. "They had a co-filing, and we'll see what the best thing to do is at this point."
Grant's lawyer, David B. Glazer, said the next step will probably be a scheduling order by the district judge, possibly including a requirement for legal briefs. He said Grant was convicted of a drug-related murder that occurred a few days after his 16th birthday. "It's one of the hurdles along the way," Glazer said. "We're just excited about the possibility of getting him back to court."
Pendleton's lawyer, federal public defender Lisa Freeland, said she was very happy with the decision. Her client was convicted of second-degree murder for the 1997 shooting death of a Pittsburgh jitney driver during a robbery, according to a magistrate judge's report in his federal court file. "We still have a ways to go, but this is a necessary first step to getting relief for Mr. Pendleton," Freeland said.
The panel opinion from the Third Circuit in these consolidated cases is available at this link; here are key excerpts:
In Miller v. Alabama, 132 S. Ct. 2455, 2460 (2010), the Supreme Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'” Corey Grant, Franklin X. Baines, and Michael J. Pendleton (collectively, “Petitioners”), each of whom claims to be serving a mandatory sentence of life without the possibility of parole for offenses committed as juveniles, seek our authorization to file successive habeas corpus petitions under 28 U.S.C. §§ 2254 (for Baines and Pendleton) and 2255 (for Grant) to raise Miller claims. Both Baines and Pendleton were convicted in state court in Pennsylvania, and Grant was convicted in federal court in New Jersey....
After extensive briefing and oral argument, we conclude that Petitioners have made a prima facie showing that Miller is retroactive. In doing so, we join several of our sister courts of appeals. See, e.g., Wang v. United States, No. 13-2426 (2d Cir. July 16, 2013) (granting motion to file a successive habeas corpus petition raising a Miller claim); In re James, No. 12-287 (4th Cir. May 10, 2013) (same); Johnson v. United States, 720 F.3d 720 (8th Cir. 2013) (per curiam) (same). But see In re Morgan, 713 F.3d 1365 (11th Cir. 2013) (concluding that Miller is not retroactive), reh’g en banc denied, 717 F.3d 1186; Craig v. Cain, No. 12-30035, 2013 WL 69128 (5th Cir. Jan. 4, 2013) (per curiam) (same).
Because of the circuit split noted by the Third Circuit (which has a notable north/deep south quality to it), the Supreme Court is surely likely to take up this issue in some form at some point in the not too distant future.
Wednesday, October 02, 2013
Australia's top court rules on the importance of disadvantaged background at sentencingThis article from down under, headlined "Indigenous disadvantage does not diminish over time, High Court rules," reports on an interesting sentencing ruling from the other side of the globe. Here are the details:
Disadvantage caused by a person's Indigenous heritage does not diminish over time and should be taken into account in sentencing of criminal offences, the High Court has found.
Lawyers for William Bugmy, a 31-year-old from Wilcannia convicted of assaulting a guard inside Broken Hill prison in 2011, had asked the court to consider principles for recognising Indigenous disadvantage in sentencing.
Bugmy, who has been been in and out of jail since he was 13, was initially handed a reduced sentence for his offence because of the severe disadvantage he had suffered as an Indigenous man over a prolonged period.
The New South Wales Criminal Appeals Court recognised the so-called Fernando Principles, which take into account an offender's Aboriginal, cultural and social background, but the Crown appealed against the decision. The judge of the court ruled the Fernando Principles diminish over time, particularly for repeat offenders, and added another year and a half to his sentence.
But today the High Court overturned that decision, finding that a long criminal record does not diminish the extent to which Aboriginal disadvantage can be taken into account -- a key element of the case.
The High Court heard Bugmy had grown up in a home where alcohol abuse was common. He had seen his father stab his mother 15 times. Felicity Graham from the New South Wales Aboriginal Legal Service says Bugmy has suffered from a series of disadvantages throughout his life....
Ms Graham says the court's decision was being watched closely by Indigenous Australians and lawyers around the country. Ms Graham says the court's ruling could bring down the number of Indigenous Australians in prison.
"The High Court has directed sentencing courts to give full weight to the background factors relating to Aboriginality and social disadvantage and so this certainly could have an impact on the trends of over-representation of Aboriginal people in the criminal justice system," she said.
Bugmy's aunt Julie travelled to Canberra for the hearing and told the ABC she hoped any reduction in her nephew's sentence would set a precedent. "The outcome I'm hoping will be for all Aboriginal people," Ms Bugmy said. "It's not just about William and growing up in Wilcannia. You've got the Aboriginal disadvantage: it's there for health, work, employment -- there's no employment."
Monday, September 30, 2013
Detailing Florida's continuing struggle to deal with Graham and MillerThis lengthy and interesting local article, headlined "Lawmakers committed to solving juvenile sentencing," highlights how legislators in the Sunshine State have been struggling to fix its sentencing laws in the wake of two Supreme Court rulings concerning limits on LWOP sentences for juvenile offenders. Here are excerpts:
With the courts threatening to intercede, Florida lawmakers say they are committed to finding a solution to sentencing juveniles under U.S. Supreme Court rulings that restrict the use of life sentences. The issue is likely to be a focal point of debate in next year’s legislative session and could affect two local cases.
But lawmakers have failed to find an agreement for the last three years, leaving Florida Supreme Court justices to suggest earlier this month that they could impose a parole system to review lengthy sentences for juveniles in light of the Legislature’s inaction....
Heading toward their 2014 session, lawmakers must address two groups of juvenile offenders. One group is juveniles convicted of non-homicide crimes — for which the U.S. Supreme Court banned life sentences in 2010. The other group is juveniles convicted of murder, who can be sentenced to life but their punishment must follow protocols outlined by the nation’s highest court in a 2012 ruling.
In the 2013 session, the sentencing legislation failed when [Sen. Rob Bradley, R-Fleming Island, a former state prosecutor] advanced a bill capping sentences at 50 years for non-homicide juvenile crimes and establishing a sentencing procedure for juvenile murderers, who would face a minimum 50-year sentence if they were not sentenced to life. But senators, who believed the bill was still too harsh, amended the bill in 20-19 vote, calling for a sentence review at 25 years for the juvenile offenders. In response, Bradley killed the legislation.
He and other lawmakers say they understand the frustration of the state’s highest court — where two cases are pending involving juveniles who received 70- and 90-year sentences for non-homicide crimes — but they said they hope to resolve the issue without putting the burden on the court....
Rep. Ray Pilon, R-Sarasota, who sponsored the House version of the sentencing bill, said he understood why the courts are not happy with the lack of legislative action. “They’re pushing us to do something,” Pilon said. “I think it was kind of travesty that we couldn’t come to a compromise last year. I’m certainly hopeful that we do this year. It’s our responsibility.”
There has been tension between the Legislature and the court in recent years, with some legislative leaders suggesting the justices have intruded into the legislative arena. But some lawmakers say the failure to act on the juvenile sentencing would leave the court little choice. “If we’re lawmakers we need to make the law,” said Rep. Dave Kerner, D-Lake Worth, a member of the House Criminal Justice Subcommittee, which would initiate the juvenile sentencing legislation. “We talk a lot about judges acting outside their authority. But it’s hard to blame them when we don’t write the laws.”...
Lawyers for an Orlando juvenile facing a 90-year sentence have suggested the state Supreme Court re-impose a parole system — which was abolished for non-capital crimes in 1983 and for all crimes in 1995 — to review lengthy juvenile sentences. In their questioning during oral arguments on the case, several justices talked about using the Parole Commission, which still exists to handle prisoners sentenced before parole was abolished.
But reviving the parole system would likely meet resistance from lawmakers. “Parole has become a dirty word in Florida,” said House Criminal Justice Chairman Matt Gaetz, R-Fort Walton Beach. “I don’t know that there is enough momentum to sort of change that cultural shift that has occurred in our state.”
Nonetheless, lawmakers generally agree that they may have to come up with some review process for the non-homicide juveniles since the U.S. Supreme Court has said they must be given “some realistic opportunity to obtain release” before the end of their prison term. “We can call it whatever you want but we have to have that ability to go back and look,” Kerner said.
While acknowledging a review process for the non-homicide juveniles is necessary, Bradley said he would strongly resist any type of review for the juveniles convicted of murder. He said that would impose an emotional burden on the families of the crime victims, calling it unfair “to bring them back for a hearing and to go relive the crime over and over again.”
Under Bradley’s previous legislation, juveniles could be sentenced to a life sentences for murder if the judge weighed some 10 factors in the sentencing, including the offender’s level of maturity and the nature of the crime. The U.S. Supreme Court ruling has called for “individualized sentencing decisions” for juveniles based on the argument that they were different from adult offenders.
September 30, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack
Sunday, September 29, 2013
Did Louisiana really give Corey Ladd "20 years hard labor" for possessing less than an ounce of marijuana?The question in the title of this post is prompted by this recent commentary by Bill Quigley at Dissident Voice headlined "Half Ounce of Pot Gets Louisiana Man Twenty Years in Prison." I have now seen this story of an extreme sentence for a minor marijuana offense reprinted and repeated in various ways via various news sources and blogs, but I cannot find any materials that provide more information or context about this case other than these details reported via the commentary:
While Colorado and Washington have de-criminalized recreational use of marijuana and twenty states allow use for medical purposes, a Louisiana man was sentenced to twenty years in prison in New Orleans criminal court for possessing 15 grams, .529 of an ounce, of marijuana.
Corey Ladd, 27, had prior drug convictions and was sentenced September 4, 2013 as a “multiple offender to 20 years hard labor at the Department of Corrections.”
Marijuana use still remains a ticket to jail in most of the country and prohibition is enforced in a highly racially discriminatory manner. A recent report of the ACLU, “The War on Marijuana in Black and White,” documents millions of arrests for marijuana and shows the “staggeringly disproportionate impact on African Americans.”...
Louisiana arrests about 13,000 people per year for marijuana, 60% of them African Americans. Over 84 percent were for possession only. While Louisiana’s population is 32 percent black, 60 percent of arrests for marijuana are African American making it the 9th most discriminatory state nationwide. In Tangipahoa Parish, blacks are 11.8 times more likely to be arrested for marijuana than whites and in St. Landry Parish the rate of black arrests for marijuana is 10.7 times as likely as whites, landing both parishes in the worst 15 in the country.
In Louisiana, a person can get up to six months in jail for first marijuana conviction, up to five years in prison for the second conviction and up to twenty years in prison for the third. In fact, the Louisiana Supreme Court recently overturned a sentence of five years as too lenient for a fourth possession of marijuana and ordered the person sentenced to at least 13 years....
Arrests and jail sentences continue even though public opinion has moved against it. National polling by the Pew Research Center show a majority of people support legalizing the use of marijuana. Even in Louisiana, a recent poll by Public Policy Polling found more than half support legalization and regulation of marijuana.
Karen O’Keefe, who lived in New Orleans for years and now works as Director of State Policies at the Marijuana Policy Project, said “A sentence of 20 years in prison for possessing a substance that is safer that alcohol is out of step with Louisiana voters, national trends, and basic fairness and justice. Limited prison space and prosecutors’ time should be spent on violent and serious crime, not on prosecuting and incarcerating people who use a substance that nearly half of all adults have used.”
Defense lawyers are appealing the twenty year sentence for Mr. Ladd, but the hundreds of thousands of marijuana arrests continue each year. This insanity must be stopped.
The Louisiana Supreme Court case referenced in this commentary is Louisiana v. Noble, No. 12-K-1923 (La. April 19, 2013) (available here), and the Noble court did in fact rule that Louisiana's Habitual Offender Law demanded imposition of a mandatory prison term of 13.3 years for a defendant who "was convicted of a fourth offense possession of marijuana and adjudicated as a third felony offender based on two prior guilty pleas to possession of cocaine" and even though "defendant supports seven children, two of whom have significant medical problems, and ... all of the defendant’s offenses have been non-violent ... and all involved the possession of small quantities of narcotics."
The Noble case documents that at least some defendants are, despite claims by supporters of the modern drug war, that nobody really serves long terms of imprisonment merely for possessing marijuana. But the opinion in Noble does not reveal just how much much marijuana the defendant in that case possessed, and perhaps the possession offense there involved a significant quantity.
This case involving Corey Ladd surely also involves application of Louisiana's Habitual Offender Law because subsection 4(a) of that law provides a mandatory minimum of 20 years for the "fourth or subsequent felony." And I suspect the sentencing court felt obligated to give the 20-year term because the Noble court reversed another sentencing court for trying to go below the applicable mandatory minimum. But I am still gobsmacked that possessing such a small amount of marijuana in the Bayou could be a felony and in turn require the imposition of a 20-year prison term for a habitual offender.
Cross-posted at Marijuana Law, Policy and Reform
Friday, September 27, 2013
Judge Weinstein quickly responds to Second Circuit reversal of his below-mandatory-minimum child porn sentencingThanks to How Appealing here, I have just seen that Judge Jack Weinstein wasted little time in responding to the ruling yesterday by the Second Circuit in US v. Reingold (discussed here) that Judge Weinstein had erred when sentencing a young defendant who distributed child pornography below the applicable five-year mandatory minimum term based on the Eighth Amendment. Judge Weinstein's response appears in this nine-page Memorandum and Order, which gets started this way:
This case exemplifies the sometimes unnecessary cruelty of our federal criminal law. The Court of Appeals for the Second Circuit has ordered — pursuant to statutes it held binding — that defendant’s prison term be increased substantially; another 30 months must now be added to the term reluctantly imposed by the district court of 30 months in a prison medical treatment center — an additional period likely to be spent in the general prison population. See United States v. Reingold, No. 11-2826-cr (2d Cir. Sept. 13, 2013) (order reversing in part as to sentencing and remanding); United States v. Reingold, No. 11-2826-cr (2d Cir. Sept. 26, 2013) (opinion of the court remanding for resentencing). Such a long sentence is unjust.
After release from prison, C.R. will be severely restricted as a convicted sex offender in where, and with whom, he can live, work and recreate for up to life. See 42 U.S.C. §§ 16911, 16915(a)(1), 16915(b); N.Y. Correct. Law § 168-h(1); Judgment of Conviction, United States v. C.R., No. 09-CR-155 (E.D.N.Y. Jun. 21, 2011), ECF No. 157; cf. Michael Schwirtz, In 2 Trailers, the Neighbors Nobody Wants, N.Y. Times, Feb. 5, 2013, at A1 (discussing the lack of permissible, housing for “sex offenders”).
The effect of harsh minimum sentences in cases such as C.R.’s is, effectively, to destroy young lives unnecessarily. The ancient analog of our modern destruction of youngsters by cruel, unnecessarily destructive and self-defeating, long minimum prison sentences, was physically sacrificing them to ancient gods for the supposed benefit of society. Leviticus 18:21 (King James ed.) warns, “[T]hou shalt not let any of thy [children] pass through the fire to Molech.” See W. Gunther Plaut et al., The Torah: A Modern Commentary, 149 n.1, 883 (1981) (ancient human sacrifice of children); Maimonedes Mishneh Torah, 116 (Rabbi Eliyahu trans. with commentaries and notes, Moznaim Publ’g. Corp. 2001) (“[A] person who gives his descendants to Molech” is executed by stoning.). And a pillar of major religions is the banning of the sacrifice of children. Genesis 22:12-13; see Plaut et al., at 149 (“[R]eligion . . . rejects the sacrifice of a [mortal] son . . . .”). Yet we continue using the criminal law to unnecessarily crush the lives of our young.
An important duty of an Article III district judge is to prevent injustices by the government in individual cases. See United States v. Ingram, 2013 WL 2666281, at *14 n.9 (2d Cir. June 14, 2013) (Calabresi, J. concurring) (“[W]e judges have a right — a duty even — to express criticism of legislative judgments that require us to uphold results we think are wrong.” (footnotes and citations omitted)); Charles E. Wyzanski, Jr., A Trial Judge’s Freedom and Responsibility, 65 Harv. L. Rev. 1281, 1303 (1952) (“clearly ethical in its nature”); Jack B. Weinstein, Every Day Is A Good Day for A Judge To Lay Down His Professional Life for Justice, 32 Fordham Urb. L. J. 131, 155 (2004) (“The judge must decide: does this law violate the essence of my duty to . . . humanity.”). Where, as here, in the opinion of a ruling appellate court, the trial court has exceeded its power, at least the matter has been brought to the government’s and public’s attention, so that in due course, in our caring democracy, future injustices of this kind will be avoided.
Recent related post:
September 27, 2013 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (35) | TrackBack
"The New Asylums: Jails Swell With Mentally Ill"
The title of this post is the headline of this lengthy new investigative report published in The Wall Street Journal. Here are excerpts from the important article:
America's lockups are its new asylums. After scores of state mental institutions were closed beginning in the 1970s, few alternatives materialized. Many of the afflicted wound up on the streets, where, untreated, they became more vulnerable to joblessness, drug abuse and crime.
The country's three biggest jail systems — Cook County, in Illinois; Los Angeles County; and New York City — are on the front lines. With more than 11,000 prisoners under treatment on any given day, they represent by far the largest mental-health treatment facilities in the country. By comparison, the three largest state-run mental hospitals have a combined 4,000 beds.
Put another way, the number of mentally ill prisoners the three facilities handle daily is equal to 28% of all beds in the nation's 213 state psychiatric hospitals, according to the National Association of State Mental Health Program Directors Research Institute Inc. "In every city and state I have visited, the jails have become the de facto mental institutions," says Esteban Gonzalez, president of the American Jail Association, an organization for jail employees.
Correctional systems define mental illness differently. Generally, the term is used to describe prisoners who require medication for serious issues ranging from major depressive disorders to schizophrenia and bipolar disorders. Also included are inmates with diagnoses that warrant overnight stays in a mental hospital or who demonstrate serious functional impairment.
To get a snapshot of how the U.S. is grappling with such an explosive societal issue, The Wall Street Journal surveyed all 50 states about issues of mental health within their prison populations. Of the 22 states that provided detailed responses, their mental-health patient ratios ranged from one in 10 inmates to one in two. Inmates in all 23 responding states account for 55% of the prisoners in the U.S. under state jurisdiction.
In Oregon, the trend is particularly acute. Officials there estimate that half the state's 14,000 prison inmates suffer from some type of mental-health issue. Several states with large inmate populations, like Michigan and Illinois, reported to the Journal that about 8% to 10% of their inmates suffered from serious mental illnesses, such as schizophrenia. Smaller states, like Montana, said as many as 15% of their inmates suffered from serious mental illness.
Roughly 5% of all adult Americans suffer from a serious mental illness, according to a 2012 report by a division of the U.S. Department of Health and Human Services.
Caring for such distressed inmates is costly. National Alliance on Mental Illness, one of the leading advocacy research groups, estimates that prisoners with mental illness cost the nation $9 billion annually. Other challenges are evident. In Los Angeles, for example, the U.S. Department of Justice found in 1997 that mentally ill inmates were abused and endured conditions that violated their federal civil rights.
Earlier this month the DOJ sent a letter to L.A. officials saying that despite some apparent progress, there is "a growing number" of mentally ill inmates housed in general population quarters at Men's Central Jail, as well as a "recent increase in suicides." Assistant Los Angeles County Sheriff Terri McDonald said the growing population of mentally ill inmates "certainly strains the system." She said they would continue to work with DOJ officials "and we welcome their thoughts."
Some facilities have attempted to cope by hiring psychiatric staff and retraining prison officers. Few, however, claim to be adequately equipped to handle some of the nation's most mentally frail. A seeming revolving door compounds the problem: Upon their release, the mentally ill tend to find scant resources and often quickly fall back into the system, says Mr. Gonzalez.
Even in some areas that have seen reductions in the general inmate population, the mentally ill constitute a growing share of correctional space. For example, New York City's total prison population has fallen to 11,500, down from 13,576 in 2005. Yet the number of mentally ill prisoners has risen, to 4,300 from 3,319, says Dora Schriro, commissioner of corrections for the city. That means the city's percentage of mentally ill prisoners grew from 24% to 37%.
The picture echoes the past. Two centuries ago, reformers were disturbed to find large numbers of the mentally ill in jails, paving the way for the development of state-run institutions. In the 1950s and 1960s, complaints about abuses, advances in medication and a push to give the patients more independence led to another change, this time toward community settings. The weaknesses of that concept—a lack of facilities, barriers created by privacy laws and tightened local and state funding—has brought the picture full circle.
"Society was horrified to warehouse people in state hospitals, but we have no problem with warehousing them in jails and prisons," says Thomas Dart, sheriff of Cook County.
Thursday, September 26, 2013
Ohio DP Task Force recommends excluding those with "serious mental illness" from capital punishmentAs reported in this local article, which is headlined "Group wants law excluding severely mentally ill from death penalty," Joint Task Force to Review the Administration of Ohio’s Death Penalty (of which I am a member) endorsed a significant recommendation with respect to mental illness and the administration of the death penalty. Here are the basics:
A state task force today voted to recommend that the state legislature pass a law excluding the severely mental ill from the death penalty in murder cases.
The Joint Task Force to Review the Administration of Ohio’s Death Penalty, a creation of the Ohio Supreme Court and the Ohio State Bar Association, wants the General Assembly to hold hearings and pass a law to prevent people who have a severe mental illness, such as schizophrenia, at the time of the crime from facing the death penalty. The aim is not to stop them from being prosecuted, however.
Despite the vote, there is a deep divide among task force members about what constitutes serious mental illness and whether the current legal system does an adequate job of screening for it.
“I don’t want everyone with ADHD or some real or imaginary disability to avoid responsibility,” said state Sen. Bill Seitz, R-Cincinnati, a task force member who voted for the proposal but with reservations.
Hamilton County Prosecutor Joseph Deters said the court system screens out the seriously mentally ill through the trial and appeal process. “We are producing more and more layers of litigation in capital cases that I think are unnecessary.”
John Parker, a Cleveland attorney whose subcommittee recommended the exclusion, reasoned that the legislature, not the task force, is best equipped to decide what he admitted will be a contentious issue after hearing from law enforcement, prosecutors, the public defender, mental health experts and others.
Judge Kathleen Keough of the Cleveland Court of Appeals said walling off the seriously mentally ill from the possibility of being executed is “a matter of common decency.” She said the federal courts have ruled that the mentally retarded and juveniles cannot be executed and people with severe mental illness should be considered similarly. “Mental illness is not a choice,” she said....
The task force was motivated to make the proposal by former Ohio Supreme Court Judge Evelyn Lundberg Stratton, a longtime advocate for the mentally ill, who recommended when she was on the court two years ago that the “time had come to re-examine whether we as a society should administer the death penalty to a person with a serious mental illness.”
The task force, which convened nearly two years ago, will wrap up its meetings in November and begin drafting a final report to the governor and state legislators to be submitted next year.