Thursday, February 06, 2014

Another round of "affluenza" discourse as juve judge order rehab for teen DUI that killed four

As reported here via this CNN piece, headlined "Judge orders Texas teen Ethan Couch to rehab for driving drunk, killing 4," the Texas juvenile case which brought the term "affluenza" into the sentencing lexicon was formally completed yesterday.  Here are some of the latest details:

A judge on Wednesday ordered that Ethan Couch -- who drove drunk and caused a crash, killing four people and injuring two -- go to a lock-down residential treatment facility. State District Judge Jean Boyd had already decided the Texas teenager would serve no jail time. He was sentenced last year to 10 years' probation.

His story made national headlines after a witness claimed Couch was a victim of "affluenza" -- the product of wealthy, privileged parents who never set limits for the boy. That particular defense, however, played no part in the judge's decision, Couch's lawyer told reporters on Wednesday. Court proceedings were closed to the public.

"She (Boyd) said it (affluenza), and specifically mentioned that that was not a basis for her decision," said attorney Reagan Wynn. "She heard all the evidence and she made what she thought was the appropriate disposition." The judge ordered that Couch's parents pay for the treatment facility, which was not identified. It was also unclear how long Couch might stay there.

As part of his probation, the teen must refrain from using drugs or alcohol. He will also not be allowed to drive. If Couch violates the terms of his probation, he could face up to 10 years behind bars. "I think he can be rehabilitated given intensive therapy and I hope that he gets it," Wynn said about the teen. "The juvenile system is about rehabilitation and if it's going to be about rehabilitation, she (Boyd) absolutely made the right decision."

Eric Boyles, who lost his wife and daughter in the crash, disagrees. He told reporters he has no doubt that money played a role in the case. "Had he (Couch) not had money to have the defense there, to also have the experts testify, and also offer to pay for the treatment, I think the results would have been different," he said Wednesday after the proceedings....

Prosecutors were similarly disappointed with the judge's decision. They had asked for the maximum of 20 years behind bars. "This has been a very frustrating experience for me," said prosecutor Richard Alpert. "I'm used to a system where the victims have a voice and their needs are strongly considered. The way the system down here is currently handled, the way the law is, almost all the focus is on the offender."

Prior related post:

February 6, 2014 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (12) | TrackBack

"Justices Asked to Define 'Mentally Retarded' in Death Cases"

The title of this post is the headline of this new article by Marcia Coyle in The National Law Journal previewing the biggest SCOTUS capital case of the current Term. Oral argument in the case is less than a month away, and here is how this article begins to set the table in a very interesting and important procedural Eighth Amendment case:

Freddie Lee Hall sits on Florida's death row for the 1978 abduction and murder of a 21-year-old woman who was seven months pregnant. He should not be executed because, he claims, he is "mentally retarded."

Twelve years after the U.S. Supreme Court held in Atkins v. Virginia that execution of mentally retarded persons violates the Eighth Amendment, the justices will use Hall's case to examine how states determine who is "intellectually disabled" (now the preferred term for mentally retarded) and whether Florida's test is too narrow.  The court will hear arguments in Hall v. Florida on March 3.

Florida and its supporters want the court to hold fast to its language in Atkins giving states "the task of developing appropriate ways to enforce the constitutional restriction."

"This case turns on whether Atkins truly left any determination to the states or whether, as Hall contends, states are constitutionally bound to vague, constantly evolving — and sometimes contradictory — diagnostic criteria established by organizations committed to expanding Atkins’s reach," Florida solicitor general Allen Winsor wrote.

Most states have developed appropriate standards, according to death penalty scholars and some national psychological and disability organizations.  However, they and Hall argue the justices need to tell Florida and some other states that their tests ignore generally accepted clinical definitions of mental retardation.

Nothing in Atkins "authorizes the states to narrow the substantive scope of the constitutional right itself by defining mental retardation in a way that excludes defendants who qualify for a diagnosis of mental retardation under accepted clinical standards," said Hall's counsel, Eric Pinkard of the Capital Collateral Regional Counsel in Tampa.  "Yet that is precisely what Florida has done here."

February 6, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Wednesday, February 05, 2014

Distaff side death penalty developments in Texas and Arizona

Women-death-rowI always find gender differences and disparities quite interesting in the administration of the modern death penalty, and thus these two news stories from two states captured my attention this morning.

From Texas via the AP here, "Woman Set to Be Executed in Texas for 1998 Killing," gets started this way:

A woman convicted of torturing and killing a mentally impaired man she lured to Texas with the promise of marriage was scheduled to be executed Wednesday in a rare case of a female death-row inmate.

If 59-year-old Suzanne Basso is lethally injected as scheduled, the New York native would be only the 14th woman executed in the U.S. since the Supreme Court allowed capital punishment to resume in 1976.  By comparison, almost 1,400 men have been put to death. Texas, the nation's busiest death-penalty state, has executed four women and 505 men.

Basso was sentenced to death for the 1998 slaying of 59-year-old Louis "Buddy" Musso, whose battered and lacerated body, washed with bleach and scoured with a wire brush, was found in a ditch outside Houston.  Prosecutors said Basso had made herself the beneficiary of Musso's insurance policies and took over his Social Security benefits after luring him from New Jersey.

The 5th U.S. Circuit Court of Appeals refused to halt the execution in a ruling Tuesday, meaning the U.S. Supreme Court is likely her last hope.  A state judge ruled last month that Basso had a history of fabricating stories about herself, seeking attention and manipulating psychological tests.

Leading up to her trial, Basso's court appearances were marked by claims of blindness and paralysis, and speech mimicking a little girl.  "It was challenging, but I saw her for who she was," said Colleen Barnett, the former Harris County assistant district attorney who prosecuted Basso.  "I was determined I was not going to let her get away with it."

Basso's attorney, Winston Cochran Jr., had asked the appeals court to overturn the lower court's finding that Basso was mentally competent to face execution.  He argued that Basso suffered from delusions and that the state law governing competency was unconstitutionally flawed.  Her lawyer said a degenerative disease left her paralyzed, but Basso, who uses a wheelchair, blamed her paralysis on a jail beating years ago.  At a competency hearing two months ago, she testified from a hospital bed wheeled into a Houston courtroom and talked about a snake smuggled into a prison hospital in an attempt to kill her. But she acknowledged lying about her background, including that she was a triplet, worked in the New York governor's office and had a relationship with Nelson Rockefeller.

From Arizona via The Republic here, "5 Arizona Women Face Rare Death Penalty" gets started this way:

Women make up less than 2 percent of death-row populations in the United States. There are two women on death row in Arizona, and no woman has been executed here since Eva Dugan was hanged in 1930. So, it’s a peculiar confluence of fate that five capital-murder cases against women are working through Arizona courts in these early months of 2014:

On Jan. 17, the Arizona Supreme Court upheld the death sentence for Shawna Forde, a self-styled anti-immigration vigilante convicted of killing two people southwest of Tucson in 2009.

On Jan. 23, a Maricopa County Superior Court judge refused to reconsider her decision to allow a former Phoenix police detective to invoke the Fifth Amendment in the Debra Milke case, putting Milke’s potential retrial on hold until prosecutors can file a special action appeal. Milke was freed after 23 years on death row when the 9th U.S. Circuit Court of Appeals granted her a new trial.

Wendi Andriano, who was sent to death row in 2004 for murdering her husband, is back in Maricopa County Superior Court for the next two weeks in a stage called post-conviction relief, arguing that she deserves a new trial because her defense attorneys did not represent her effectively.

Marissa DeVault’s trial starts Thursday on charges of killing her husband with a hammer in 2009. And Jodi Arias will go back to trial on March 17 to determine if she should be sentenced to death or to life in prison for the 2008 murder of her lover Travis Alexander.

Death-penalty cases are rarely clear-cut; less so when the defendants are women. Last spring, a first jury could not reach a decision as to whether to let Arias live or die.

In 2010, a Superior Court jury balked at sending Marjorie Orbin to death row, even though it found her guilty of killing her husband and cutting him in pieces. One chunk of his torso was found in a plastic tub in the desert in north Phoenix.

And in 2002, the Arizona Supreme Court threw out a death sentence for Doris Carlson, who paid two men to kill her mother-in-law in 1996, after determining that the murder was not committed in an especially cruel, heinous or depraved manner. That is one of the aggravating factors alleged in the DeVault case, and the Arias argument on the death penalty is based on the murder being considered especially cruel.

Capital cases against women also are often more complex because the crimes are often more passionate and more intimate.  “The death penalty is mostly about crimes against strangers. That really frightens people,” said Elizabeth Rapaport, a law professor at the University of New Mexico. Those crimes often include rapes and robberies, “and women just don’t do those kind of crimes,” Rapaport said.  Women who kill tend to kill spouses, lovers, children and family members. “Those cases are rarely capital cases,” she said.

February 5, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (3) | TrackBack

Michigan legislature nearing enactment of Miller fix without retroactivity

As reported in this AP article, headlined "Mich. House OKs Sentencing Rules For Young Killers," a state that has imposed LWOP on a very large number of juvenile murderers is getting close to revising its laws in response to the Supreme Court's constitutional concerns with mandating this punishment.  Here are the details:

Young killers could no longer be sentenced to mandatory life without parole under legislation nearing final approval in Michigan, but those now incarcerated for crimes committed under age 18 would stay locked up despite pleas for a second look.

The Republican-controlled state House voted 62-48 Tuesday, mostly along party lines, to approve the new sentencing rules, 19 months after the U.S. Supreme Court struck down mandatory no-parole sentences for juveniles. The Senate is expected to send the bill to Gov. Rick Snyder; it approved an earlier version in the fall.

The Supreme Court’s June 2012 decision – based on the constitutional prohibition against cruel and unusual punishment – is silent on retroactivity, and courts across the country have been divided ever since on the issue. It is especially relevant in Michigan, home to around 360 juvenile lifers, the second-highest number in the U.S.

House Criminal Justice Committee Chairman Kurt Heise said he wishes the high court had settled the retroactivity question, but lawmakers put guidelines in place in case it does in the future. The bill includes a “trigger” so prisoners now behind bars would be resentenced if the U.S. Supreme Court or Michigan Supreme Court determines the 2012 ruling should apply retroactively....

Juveniles can still be sentenced to life without parole after the high court’s decision. The sentence just cannot be mandatory on judges, who also must consider factors such as defendants’ immaturity, rehabilitation chances, family and home environment, peer pressures and inability as youths to navigate possible plea deals.

If Michigan juveniles charged as adults commit first-degree murder or other serious crimes causing death and do not receive life without parole, judges would have to sentence them to a minimum of at least 25 years and a maximum of at least 60 years under the bill....

It is estimated that 150 prisoners serving life without parole for crimes committed as juveniles were accomplices, not the actual killers.

Over objections from Michigan Attorney General Bill Schuette, U.S. District Judge John Corbett O’Meara in November directed the state to give juvenile lifers an opportunity to apply for release or face the appointment of a special master to oversee the process. His ruling was appealed.

Jody Robinson’s brother was killed by a 16-year-old and 20-year-old in Pontiac in 1990, and she later co-founded the National Organization of Victims of Juvenile Lifers. “This legislation will not only put Michigan laws in compliance with the U.S. Supreme Court, but it also gives victims’ families the hope that legal finality is a possibility and the nightmare of repeatedly reliving their loved one’s murder may soon come to an end,” Robinson said in a statement released by Schuette’s office.

February 5, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, February 03, 2014

Should there be a death penalty exemption for combat veterans with PTSD?

The provocative question in the title of this post is the issue raised in this intriguing article from The Crime Report authored by Curtis Stephen and headlined simply "The Death Penalty and Combat Vets." Here are excerpts:

At the sprawling Allan B. Polunsky Unit — which houses some 300 people on death row in Livingston, TX — John Darrell Thuesen awaits word of a Texas Court of Criminal Appeals ruling that he hopes will spare his life.  The appeal is being closely watched across the country.

Before Thuesen, 30, was convicted on capital murder charges following a highly publicized trial in 2010, and became Inmate No. 99957, he was a decorated U.S. Marine lance corporal in Iraq, where he served from August 2004 to September 2005.  The trauma he suffered in combat, Thuesen argues, left him with impaired mental capacity — and should therefore exempt him from capital punishment.

Many legal experts agree.  “If someone has combat-related post-traumatic stress disorder (PTSD) or a traumatic brain injury (TBI) related to something that occurred in war, (he or she) should be entitled to a categorical exemption from the death penalty,” argues Anthony Giardino, an Atlanta attorney and Iraq war veteran who proposed the exemption in an article published in The Fordham Law Review in 2009....

As America’s military presence in Iraq and Afghanistan draws down, the argument has become part of an emotional — and contentious — national debate about PTSD, with some experts claiming that it is just one of a number of factors that may drive violent criminality....

There is no current data on the number of American military veterans on death row; nor are there figures on the number of former soldiers incarcerated nationwide, including those who served in Iraq and Afghanistan.  The most recent U.S. Department of Justice statistics date to 2004, when 140,000 veterans — most of whom fought in Vietnam — were held in federal and state correctional facilities.  In that year, about 18,000 ex-soldiers were either serving life sentences or facing capital punishment.

But the impact of a proposed veterans’ exemption from the death penalty is potentially broad.  To date, more than two million Americans have, at some point, been deployed to Afghanistan and Iraq since the conflicts began in 2001 and 2003, respectively.  And while the vast majority of returning soldiers won't be diagnosed with PTSD, a 2008 RAND study found that some 300,000 veterans met the criteria for it....

Veterans advocates say the presence of veterans on criminal court dockets — including for violent, capital offenses — isn't surprising.  “You're talking about survivors who had multiple tours in war and are coming back with symptoms of layered PTSD,” says Shad Meshad, founder of the Los Angeles-based National Veterans Foundation.  “It's like a bomb waiting to go off for some people.”...

“We should be drawing short of taking the life of someone who was suffering mentally at the time of the crime,” says Bill Pelke, a Vietnam veteran and co-founder of the anti-violence advocacy group, Journey of Hope.

Nevertheless, critics argue there is no justification for excluding combat veterans from capital punishment on the grounds of health disabilities arising from their service.  “I am unaware of any case law, legal, medical or moral reasoning that could establish that all of those with PTSD or TBI should be exempt from the death penalty,” counters Dudley Sharp, a Texas-based victim's rights advocate.

Bret A. Moore, a former military psychologist, is similarly skeptical about the tendency to cite PTSD in criminal cases.  “It gives us an opportunity to blame the violence on something, he says.  “But there's no significant data showing that people with PTSD are any more violent than people without it.  My concern is that veterans are getting tagged as violent, which isn't accurate and does a disservice to those who are suffering from the disorder.”

February 3, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (18) | TrackBack

"Research on [lead]’s effects on the brain bolsters the hypothesis that childhood exposure is linked to criminal acts"

LeadRegular readers know I am intrigued by the possibility that lead exposure could be a very important part of the very important modern story of US violent crime rates.  This new piece on lead and crime, appearing in Chemical & Engineering News, carries the subheadline I have used in the title of this post. Here are excerpts of a piece that merits a full read by anyone and everyone concerned about US violent crime rates and what might significantly impact them: 

When crime rates began to drop across the U.S. during the 1990s, city officials and criminologists were thrilled — but baffled.  Violent acts, most often committed by young adults, had reached an all-time high at the start of the decade, and there was no sign of a turnaround.

By the close of the ’90s, though, the homicide rate had declined more than 40% throughout the country.  Economists and criminologists have since proposed reasons for the unexpected plummet.  Some have pointed to an increase in police officers.  Others have suggested a rise in the number of offenders put behind bars.  Economist and “Freakonomics” coauthor Steven D. Levitt famously hypothesized that the legalization of abortion in 1973 even played a role....

But recently, experts have been kicking around another possible player in the crime drop of the ’90s: lead.  Cars burning leaded gasoline spewed the heavy metal into the air until 1973, when the Environmental Protection Agency mandated the fuel’s gradual phaseout. Lead-based paint was banned from newly built homes in 1978.  Because of these actions, children born in the mid- to late-1970s grew up with less lead in their bodies than children born earlier.  As a result, economists argue, kids born in the ’70s reached adulthood in the ’90s with healthier brains and less of a penchant for violence....

As the lead-crime hypothesis gains traction in economics circles, critics are invoking the “correlation does not equal causation” mantra.  But scientists argue that there is evidence that lead exposure increases aggression in lab animals.  And even though lead, one of the oldest known poisons, affects the brain in a dizzying number of ways, researchers are beginning to tease out some of the mechanisms by which it might trigger violence in humans....

Looking for explanations of the ’90s crime drop in the U.S., economists and crime experts latched onto ... epidemiology studies. “We saw these correlations for individuals and thought, ‘If that’s true, we should see it at an aggregate level, for the whole population,’ ” says Paul B. Stretesky, a criminologist at the University of Colorado, Denver.  In 2001, while at Colorado State University, Stretesky looked at data for more than 3,000 counties across the U.S., comparing lead concentrations in the air to homicide rates for the year 1990.  Correcting for confounding social factors such as countywide income and education level, he and colleague Michael J. Lynch of the University of South Florida found that homicide rates in counties with the most extreme air-lead concentrations were four times as high as in counties with the least extreme levels.

Others have found similar correlations for U.S. cities, states, and even neighborhoods. In 2000, Rick Nevin, now a senior economist with ICF International, saw the trend for the entire country.  In general, these researchers see blood-lead levels and air-lead levels increase, peak in the early 1970s, and fall, making an inverted U-shape.  About 18 to 23 years later, when babies born in the ’70s reach the average age of criminals, violent crime rates follow a similar trajectory....

Research has shown that lead exposure does indeed make lab animals — rodents, monkeys, even cats — more prone to aggression.  But establishing biological plausibility for the lead-crime argument hasn’t been as clear-cut for molecular-level studies of the brain.... On the brain development side of things, lead interferes with, among other things, the process of synaptic pruning....

“If you have a brain that’s miswired, especially in areas involved in what psychologists call the executive functions — judgment, impulse control, anticipation of consequences — of course you might display aggressive behavior,” says Kim N. Dietrich, director of epidemiology and biostatistics at the University of Cincinnati College of Medicine.

Dietrich and his colleagues have been studying lead’s effects on the developing brain for more than 30 years. In the late 1970s, he and a group of other investigators recruited some 300 pregnant women for what would become the Cincinnati Lead Study.  At the time, these women lived in parts of Cincinnati — typically the inner city — that had experienced historically high numbers of lead-poisoning cases.  Once the recruits’ babies were born, Dietrich and his group began monitoring the newborns too.

From the time they were born until they were six-and-a-half years old, the young participants had their blood-lead levels measured 23 times.  The average childhood concentration for the whole group was 13 µg/dL.  Now adults in their 30s, the subjects are having their brains scanned and behaviors analyzed.  And the results are eerie.  As of 2008, 250 members of the lead study had been arrested a total of 800 times.  The participants’ average blood-lead levels during childhood also correlated with their arrest rate, Dietrich’s team found....

Most kids in the U.S. today have a blood-lead level of 1 or 2 µg/dL.  But there are nearly a half-million children between the ages of one and five with a blood-lead level above the 5-µg/dL threshold.  These are mostly kids who are growing up in dilapidated inner-city houses with lead paint still on the walls or in neighborhoods with elevated levels of lead in the soil.

Despite progress in lowering lead levels in the environment, these kids would benefit from the reevaluation of crime policies and reinvigoration of cleanup efforts, says U of Colorado’s Stretesky. “People who are suffering the most from lead exposure are those that tend to be poor, minority, and low income.”

Some related posts:

February 3, 2014 in Data on sentencing, National and State Crime Data, Offender Characteristics | Permalink | Comments (4) | TrackBack

Sunday, February 02, 2014

"Sentencing and Prior Convictions: The Past, the Future, and the End of the Prior Conviction Exception to Apprendi"

The title of this post is the title of this interesting and potent new paper now available via SSRN and authored by the always interesting and potent Nancy King. Here is the abstract:

This article traces the fascinating history of early efforts to identify defendants and their prior convictions as well as the evolving use of prior convictions in aggravating punishment; examines how contemporary repeat offender penalties fall short of punishment goals and contribute to the racially lopsided profile of punishment today; and critiques potential justifications for the prior conviction exception to the rule in Apprendi v. New Jersey, arguing that the exception should be abandoned.

The article summarizes empirical research testing the relationship between prior convictions and examining the efficacy of repeat offender sentences in reducing recidivism; collects commentary on the use of risk prediction in sentencing; surveys state-by-state eighteenth century authority that belies the claim that denying element status to prior convictions that raise the range of punishment is a longstanding tradition; evaluates the weaknesses of the case law underlying the Court's decision in Almendarez-Torres; argues that defendants need not be prejudiced when prior convictions are treated as elements; and observes that the original reason that a very small number of states in the nineteenth century stopped requiring prior convictions to be treated as elements — namely, that an offender’s criminal history was often unknown unless or until a warden recognized him — no longer exists.

An earlier version of the article was delivered as the Barrock Lecture on Criminal Law at the Marquette University Law School.

February 2, 2014 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Blakely in the Supreme Court, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Tuesday, January 28, 2014

You be the judge: should guidelines be followed in federal sentencing of elderly nun and two other peace activists?

22_Sister-Megan-Rice-300x231The question in the title of this post is based on this notable Reuters story, headlined "Activists face sentencing for Tennessee nuclear facility break-in." Here are the interesting details, with emphasis added concerning the recommendations of the federal sentencing guidelines:

An elderly nun and two other peace activists are set to be sentenced on Tuesday on their federal convictions for damage they caused breaking into a Tennessee defense facility where enriched uranium for nuclear bombs is stored.

Sister Megan Rice, Michael Walli, and Greg Boertje-Obed admitted cutting fences and making their way across the Y-12 National Security Complex in Oak Ridge, Tennessee, in July 2012, embarrassing U.S. officials and prompting security changes.

The three were convicted by a federal jury last May of damaging a national defense premises under the sabotage act, which carries a prison sentence of up to 20 years, and of causing more than $1,000 of damage to U.S. government property.

Federal sentencing guidelines call for Rice, 83, to receive up to a little more than seven years in prison; Walli, 65, more than nine years; and Boertje-Obed, 58, more than eight years.  The defendants have been in custody since their conviction. Prosecutors have asked that the defendants receive sentences in line with federal guidelines. The defendants have asked for lesser sentences.

Bill Quigley, one of the attorneys of the defendants, said that all three are in good health, but that Rice, who turns 84 January 31, is "freezing cold in jail."

"They're all in great spirits and they're very much at peace about being sentenced," Quigley said.  "We're hoping for significantly less time.  People are even praying and hoping they'll be released."

Defense attorneys argued in court documents that the three were "completely nonviolent" when they were arrested.  "They used the occasion to present symbolically their passion for nuclear disarmament," defense lawyers wrote. The three activists have received more than 2,000 cards and letters of support from around the world.

Prosecutors contended the break-in at Y-12, the primary U.S. site for processing and storage of enriched uranium, disrupted operations, endangered U.S. national security, and caused physical damage that cost more than $8,500 to repair.  "The United States believes that the defendants should be held accountable for their deliberate choices and accept the appropriate consequences for their actions," prosecutors said in court documents.

The activists admitted cutting several fences, walking through the complex for hours, spray-painting slogans and hammering on the walls of the facility.  When a guard confronted them, they offered him food and began singing.

I wonder how most Americans would react (especially the folks at FoxNews) if Sister Megan Rice had been caught and convicted of breaking into an uranium-enrichment facility somewhere near Tehran, and Iranian prosecutors were advocating that, at age 84, Sister Rice should be held accountable by having to spend another six years in an Iranian prison.  Of course, that is not what Sister Megan Rice did: she broke into a uranium-enrichment facility in Tennessee, and it is American prosecutors who are advocating that she should be held accountable by having to spend another six years in an American prison.  That obviously makes all the difference in the (western) world.

This recent article from Mother Jones, headlined "Nun Faces up to 30 Years for Breaking Into Weapons Complex, Embarrassing the Feds," provides a lot more background on this case.  It concludes with this explanation of the religious background for the criminal actions by these activists:

The three imprisoned activists are members of the Plowshares Movement, a Christian peace initiative founded in 1980 when the brothers Daniel and Philip Berrigan and six others trespassed onto the General Electric nuclear missile facility in King of Prussia, Pennsylvania, and hammered on the nose cones of missiles.  The movement takes inspiration from Isaiah 2:4: "And they will hammer their swords into plowshares" — the part of the plow that tills the soil. Plowshares actions typically involve the pouring of blood and the symbolic gesture of hammering weapons — in this case, the walls of the Y-12 uranium warehouse.

"They feel that nuclear weapons are the single greatest threat to God's creation that exists in the world today," [fellow activist Ralph] Hutchison says.  "They think that there is a faith imperative.  Nuclear weapons represent the ultimate anti-God.  Anything that God is for — compassion, hope, promise of a future, health, security — they think are completely contradictory to the idea of nuclear weapons."

UPDATE: This Knoxville News Sentinel article reports on the now-interrupted sentencing today:

With snow coming down and federal officials closing the courthouse early, Judge Amul Thapar, prosecutors and attorneys agreed Tuesday to delay the sentencing of three protesters who broke into the Y-12 nuclear weapons plant. They determined there wasn’t enough time to complete the sentencing before the doors closed at 2:30 p.m. on the Howard H. Baker Jr. U.S. Courthouse.

The sentencing has been rescheduled to 9 a.m. on Feb. 18. Sister Megan Rice, an 83-year-old Catholic nun, Rice, who’ll turn 84 in two days, Michael R. Walli, 64, both from Washington, D.C., and Greg Boertje-Obed, 58, from Duluth, Minn., were convicted in May on federal charges of attempting to injure the national defense and depredation of government property.

Earlier Tuesday, the judge ordered the three to pay $52,953 in restitution, waiving interest and allowing payments to be made quarterly. The costs include repairs to fences, spray washing and cleaning the exterior of the plant’s storehouse for bomb-making uranium and additional security expenses.

January 28, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (22) | TrackBack

Sunday, January 26, 2014

Texas jury suggests it's much better for NFL players to kill pals than sell them pot and coke

I was pleased and intrigued by all the diverse comments that were part of reader reactions to my rant here last week about Justin Beiber and what I consider the harmful and dangerous leniency too often shown to serious DUI offenders. To summarize the gist of my prior rant(s), I am troubled many serious DUI offenses are punished so relatively leniently, and I fear that rich and famous DUI offenders get even extra leniency because they generally can afford the best lawyers and are generally viewed more sympathetically than most other defendants because of their fame.   It was very helpful to see different folks express different reactions to these sentiments.

Intriguingly, the day after the Bieber arrest news broke, a Texas jury handed down its punishment for another rich and famous person involved in a serious DUI offense.  Via this AP story, here are the details:

Former Dallas Cowboys player Josh Brent avoided prison Friday and instead was sentenced to 180 days in jail and 10 years of probation for a drunken car crash that killed his friend and teammate, Jerry Brown.

Brent was convicted Wednesday of intoxication manslaughter for the December 2012 crash on a suburban Dallas highway that killed Brown, who was a passenger in Brent's car.  Brent could have been sentenced to up to 20 years in prison.  He was also fined $10,000....

One of his attorneys, Kevin Brooks, described the former defensive tackle as "somber."... Brooks said, "It's kind of what we've been fighting for from Day 1. I'm happy for Josh.  Josh is still sad and grieving and that's something he's going to carry with him the rest of his life."

Brown's mother, Stacey Jackson, wasn't in the courtroom when the verdict was read.  She publicly forgave Brent, and said during Thursday's sentencing proceedings: "He's still responsible, but you can't go on in life holding a grudge. We all make mistakes."

Jackson was the last witness the jury heard, and lead prosecutor Heath Harris said her testimony probably helped Brent get probation.  "The victim's family will always have a bearing on the punishment phase," Harris said.  "Should it make a difference?  What if she had been wanting the maximum? Would they have given the maximum?  That's why we let the jury decide."

Prosecutors were pushing for prison time for Brent, whose trial came weeks after a teenage boy in neighboring Tarrant County received no prison time for an intoxication manslaughter conviction in a drunken crash that killed four people.  In that case, a defense expert argued that the teen deserved leniency because his parents had coddled him into a sense of irresponsibility -- a condition the expert termed "affluenza."

The group Mothers Against Drunk Driving, whose headquarters isn't far from the spot where Brent crashed, said in a statement that it was "shocked and appalled" by the athlete's sentence.  "This punishment sends the message that it's OK to drink and drive -- but it's absolutely not," MADD said....

Blood tests pegged Brent's blood alcohol content at 0.18 percent, which is more than twice the state's legal limit to drive of 0.08 percent.  Prosecutors told jurors that the burly, 320-pound lineman had as many as 17 drinks on the night of the crash....

Judge Robert Burns scolded Brent after reading the verdict, saying his actions "bring shame to the city of Dallas."  The judge also mentioned Brent's 2009 drunken-driving conviction in Illinois, which the prosecution revisited in making its case for prison time.

"The judge obviously has a right to express his opinion," said George Milner, one of Brent's attorneys. "I guess the difference is there's no one in that courtroom that knows Josh the way Kevin and I do. And so I see a different person."

Regular readers will not be at all surprised that I think a sentence of probation for 10 years and a $10K fine is far too lenient punishment for Brent's repeat and now deadly penchant for drinking and driving.  (My understanding from this local report is that the Texas jury imposed only the probation term and fine, but that the trial judge added the 180 days in local jail.)  And those who hope Brent will finally shape up after killing his friend might be interested in this NFL report from last year noting he failed two drug tests while on bail awaiting his trial.

Among other interesting aspects of this story is the obvious role that Brent's victims and Texas' system of jury sentencing played in the lenient sentence.  As the above stories suggests, the Texas jury was likely significantly moved by statements from the victim's mother seeming to urge giving Brent a big sentencing break, whereas the local judge was apparently still eager to throw the book at Brent.  I highlight these realities because far too many persons often believe or claim in far too many settings that giving voice to victims' interests and/or allowing jury sentencing will result in (too) harsh sentencing outcomes. In this notable case, giving voice to victims' interests and allowing jury sentencing result in a (too) lenient sentencing outcome.

Finally, as the title of this post indicates, what probably troubles me most about this outcome is what it says about the values and commitments of our modern criminal justice systems in the wake of last high-profile sentencing of an NFL player.  As detailed in this AP article from two months ago, former NFL receiver Sam Hurd was sentenced to 15 years in federal prison for being involved in "a lot of agreements to buy and sell marijuana and cocaine."  (Notably, the federal sentencing guidelines actually recommended that Hurd get a 30 year sentence, but the federal judge varied down to 15 years.)  

In other words, for his first offense trying to make money by selling his pals pot and coke, Sam Hurd got a federal prison sentence 30 times longer than the jail term to be served Josh Brent for killing his pal during his second (known) offense of drinking and driving.  Like the folks at MADD, I worry that these disparate punishment realities "send the message that it's OK to drink and drive" and kill your pal, just make extra sure you do not try to seel them some pot and coke or you might get in really big trouble.  (And do not get me started on the additional messaging from another famous NFL player, Plaxico Burress, having to cut a plea deal to get a state prison sentence only four times longer than what Brent will serve simply for carrying a gun the wrong way and shooting himself!)

Some related posts on drunk driving leniency and NFL player sentencings:

January 26, 2014 in Celebrity sentencings, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (11) | TrackBack

Friday, January 24, 2014

Notable early Massachusetts legislative response to elimination of juve LWOP

This Boston Globe article, headlined "Bill seeks at least 35 years for young killers," reports on a proposed statutory response to the recent ruling by the Supreme Judicial Court of Massachusetts (discussed here) which declared that that "all life-without-parole sentences for juvenile offenders, whether mandatory or discretionary, violate art. 26 of the Massachusetts Declaration of Rights." Here are the basics:

A group of state lawmakers is proposing legislation that would require juvenile murderers to serve at least 35 years in prison before being eligible for parole, in direct response to a Supreme Judicial Court ruling that struck down life sentences without the possibility of parole for young killers.

The bipartisan bill would also require the state Parole Board, in deciding whether to grant early release, to consider whether a teenager convicted of murder had the maturity and sense of responsibility of an adult when carrying out the crime.

The bill was based on the recommendation last week of the Massachusetts District Attorneys Association and was meant to fill a legal void left by the Supreme Judicial Court decision in December that eliminated sentences of life without parole for juveniles, even those convicted of the most horrendous crimes. “It’s about the injustice this would mean for the victims’ families,” said state Senator Barry Finegold, a Democrat from Andover and one of the sponsors of the legislation.

Senator minority leader Bruce Tarr, a Republican from Gloucester who cosponsored the bill, added that he has spoken with the families of murder victims and “their loss is no less because their suffering was at the hands of a juvenile.”...

According to state officials, approximately 66 prisoners who were sentenced to life without the possibility of parole for crimes they committed as juveniles could now be eligible for parole. No hearings have been scheduled.

Joshua Dohan — director of the youth advocacy division for the state Committee for Public Counsel Services, the state’s public defender agency — questioned how the state legislators reached the 35-year mark. Dohan pointed out that international standards, agreeing that teenagers have mindsets that are different from those of adults, call for juvenile sentences of, on average, no more than 20 years in prison, even for murder.

He said legislators are reacting quickly to a sensitive issue, but that they should slow down the process. He called for lawmakers to give judges discretion to hand out punishments, so they could consider a teenager’s culpability in a crime. “These are really important decisions that are going to affect the defendant, but also their families and the families of their victims,” he said....

Tarr and Finegold, flanked by a group of legislators who sponsored the bill, said the 35-year limit is a balance between holding a teenager accountable for his or her crimes and preserving the constitutional issues cited by the courts. Other states, reacting to the US Supreme Court decision, have passed a variety of laws: Wyoming, for instance, offers parole after 25 years.

“While it’s not an ideal situation, we hope this will bring a measure of comfort to the victims’ families,” said Finegold, who said he was working on behalf of Colleen Ritzer, the Danvers High School teacher who was killed in October, allegedly by a student.

A few other recent related posts:

January 24, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, January 21, 2014

Florida prisons struggling with extra costs of a hearty appetite for religion

This new New York Times article, headlined "You Don’t Have to Be Jewish to Love a Kosher," highlights the extra costs of respecting religious freedoms for the incarcerated. Here are excerpts:

Florida is now under a court order to begin serving kosher food to eligible inmates, a routine and court-tested practice in most states.  But state prison officials expressed alarm recently over the surge in prisoners, many of them gentiles, who have stated an interest in going kosher.

Their concern: The cost of religious meals is four times as much as the standard fare, said Michael D. Crews, who is expected to be confirmed as secretary of the Department of Corrections in March.  “The last number I saw Monday was 4,417,” Mr. Crews said of inmate requests at his recent confirmation hearing before a State Senate committee. “Once they start having the meals, we could see the number balloon.”...

Kosher food in prisons has long served as fodder for lawsuits around the country, with most courts coming down firmly on the side of inmates.  As long as inmates say they hold a sincere belief in Judaism — a deeply forgiving standard — they are entitled to kosher meals, even if takes a little chutzpah to make the request.

“Florida is an outlier,” said Eric Rassbach, deputy general counsel for the Becket Fund for Religious Liberty, which has represented inmates around the country.  “It’s a holdout. I don’t know why it’s being a holdout.  It is strange that Florida, of all places, is placing a special burden on Jewish inmates.  It’s just stubbornness.”

In Florida’s prison system. which faces a $58 million deficit, money is the easy answer for the battle against kosher food.  The cost of three kosher meals in Florida is $7 a day, a big jump from the $1.54 for standard meals, Mr. Crews said.  In New York State, where 1,500 inmates out of about 56,000 keep kosher, the cost of a kosher meal is $5 a person.  In California, where some prisons have kosher kitchens, the price tag is $8, and the meals are served to 0.7 percent of about 120,000 inmates.

Last April, facing an inmate lawsuit, Florida began a pilot program for the religious diet at Union Correctional Facility near Jacksonville. Initially, some 250 inmates signed up, Mr. Crews said. But once other inmates spied the individually boxed lunches, 863 expressed a sudden interest in keeping kosher....

But the question of who gets a kosher meal is tricky.  In all, less than 1.5 percent of the country’s 1.9 million inmates are Jewish, according to the Aleph Institute, a social services organization, and many do not even request kosher meals.  “Who is a Jew?” Mr. Rassbach said. “People disagree about who is a Jew.”

The courts steer clear of that perilous debate.  Instead, inmates need only say they have a “sincerely held” religious belief.  Attempts by prison officials and rabbis to quiz prisoners about the Torah and the rules of keeping kosher were ruled not kosher. Tracing maternal lineage was similarly viewed unfavorably....  Some states, like New York, do nothing to try to discern who is feigning Jewishness.  In California, inmates talk with a rabbi who will gauge, very generally, a prisoner’s actual interest.

But some Jewish groups in Florida are pushing for greater control, which may pose a difficult legal hurdle.  “There should be away to ascertain who really does require a kosher meal for their religious belief,” said Rabbi Menachem M. Katz, director of prison and military outreach for the Aleph Institute in South Florida, “and who is just gaming the system.”

January 21, 2014 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (9) | TrackBack

Monday, January 20, 2014

One tale (of thousands) of a juve LWOPer now with a glimmer of hope

Former federal judge and law professor Nancy Gertner authored this notable Boston Globe commentary concerning a former client of hers who might now benefit from how Massachusetts courts are responding to the Supreme Court's new Eighth Amendment jurisprudence.  The piece is headlined "Locking up kids for life?  A new court decision takes a step toward juvenile justice reform," and here are excerpts:

Three decades ago, Edward Palmariello, 17, and his 21-year-old friend Bruce Chambers were arrested in the murder of Edward’s mother, Marion.  Then a defense attorney, I represented Edward at trial. The jury found both men guilty and the sentence was mandatory  —  life in prison without any possibility of parole....

The Commonwealth’s story in court was simple: Edward and his mother fought all the time. He had said things to her like “Shut up or I’m going to cut you up and put you into the toilet bowl,” and he once waved an open switchblade at her....

There was another narrative about Edward and his mother, one the jury never heard. The mother had abused Edward’s sisters and brother.  The abuses were reflected in Department of Social Services records. In fact, each one had moved out  —  “escaped,” as one sister put it — as soon as he or she could.  Edward, the youngest, had no place to go. His mother abused him physically, but when he grew stronger than she was, her abuse became psychological.  Still, as a defense lawyer, I was reluctant to offer the complete DSS records (even if they were admissible).  While they explained the family’s dysfunction, there was a risk that a prosecutor, bent on conviction, would spin them as a motive for murder.

With the first-degree murder conviction, there would be no opportunity for testimony from the social workers who knew the family or even the family members themselves who had “escaped.”  Only one sentence was possible: life without parole. On appeal, the Supreme Judicial Court affirmed Edward’s conviction (one judge dissented).  All other appeals failed.

In most countries, Edward’s sentence would have been impossible.  Juvenile life without parole is prohibited by the UN Convention on the Rights of the Child, a measure that has been ratified by every UN nation except the United States and Somalia (Somalia announced in November that it will ratify).  Edward has spent the past 32 years in jail.  He had no hope, no future.  Perhaps, until now.

In 2012, in Miller v. Alabama, the US Supreme Court held that a mandatory sentence of life in prison without parole on any offender under 18 is contrary to the constitutional prohibition on “cruel and unusual punishments.”  While the decision’s implications were momentous, it focused only on the mandatory nature of the punishment.

But on December 24, 2013, the Supreme Judicial Court of Massachusetts went further.  In Diatchenko v. District Attorney for the Suffolk District, the court held that the state constitution barred the imposition of life without parole altogether for defendants under age 18 at the time they committed murder....

In language that resonates for Edward, the US Supreme Court criticized sentencing that “prevents taking into account the family and the home environment that surrounds [the offender] — from which he cannot usually extricate himself — no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him.” It “disregards the possibility of rehabilitation even when the circumstances most suggest it.”

Edwards’s case, along with some 60 others, will now go before the Massachusetts Parole Board. Will this be a real review or just a Kabuki ritual? Governor Deval Patrick dismissed five of the seven board members after a parolee killed a Woburn police officer in 2010. Parole rates have dropped dramatically. Perhaps that was why three SJC justices wrote a special commentary urging a “real meaningful opportunity to obtain release” for the juveniles affected by the decision. Parole Board, take heed.

At the very least, for Edward Palmariello, the board will finally hear the whole story.

Meanwhile, as this new front-page New York Times article highlights, the stories of hope for juve LWOPers in Massachusetts may be more of an exception than the rule in the wake of Miller.  That article, which is headlined "Juveniles Facing Lifelong Terms Despite Rulings" spotlights that "most states have taken half measures, at best, to carry out the rulings [in Graham and Miller], which could affect more than 2,000 current inmates and countless more in years to come, according to many youth advocates and legal experts."

January 20, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

"Obamacare Is a Powerful New Crime-Fighting Tool"

The title of this post is the headline of this notable recent article from The Atlantic. The subheading highlights its themes: "An astonishing two-thirds of the 730,000 prisoners released each year have substance abuse or mental health problems. But no one has been willing to pay for their treatment — until now."  Here is an excerpt:

An astonishing two-thirds of the 730,000 men and women released from America’s lockups each year have either substance abuse problems, mental health problems, or both. Very often, those problems were largely responsible for getting them locked up in the first place. Most addicted and mentally ill prisoners receive little or no effective treatment while they’re incarcerated or after they’re turned loose, so it’s little surprise that ... they soon wind up back in jail. But for some, that revolving door may stop spinning this year, thanks to a little-noticed side-effect of President Obama’s Affordable Care Act. Obamacare, it turns out, might be a crime-fighting tool.

Numerous studies support the common-sense notion that treating offenders’ drug addictions and mental illnesses helps keep at least some of them from going back to jail. Get that junkie off heroin, and maybe he won’t steal your car stereo for fix money; get that mentally ill homeless person on proper medications, and maybe she can find a job instead of turning tricks in alleys. “It’s not the drug itself, it’s the stealing and robbing they do to get the drug,” says Abbie Zimmerman, a therapist at Transitions Clinic, a program based in San Francisco’s hard-bitten Hunter’s Point area that treats former prisoners (including Sanders, who is now an outreach worker there). “If I can keep them sober, I can keep them out of jail.”

But no one has been willing to pay for such treatment for hundreds of thousands of ex-cons. And they certainly can’t afford it themselves: According to a recent report by the Council of State Governments, the vast majority of released prisoners re-enter society with little money and no health insurance. But now many of those former prisoners are eligible for insurance, courtesy of the federal government.

Among many other reforms, the ACA is drastically expanding Medicaid, the federal insurance scheme for the poor. Previously, able-bodied childless adults were generally not covered by Medicaid, regardless of how impoverished they might have been. But starting this year, any American citizen under age 65 with a family income at or below 138 percent of the federal poverty line — about $25,000 for a family of three — is eligible for Medicaid (at least in the two dozen states that have so far agreed to participate in this aspect of Obamacare). Meanwhile, citizens and legal immigrants earning between 138 percent and 400 percent of the poverty line are now entitled to subsidies to help pay for private insurance. Taken together, those two provisions mean that tens, perhaps hundreds, of thousands of the inmates released every year are now eligible for health insurance, including coverage for mental health and substance abuse services.

Providing treatment to those former prisoners could yield enormous benefits for all of us. The average cost to incarcerate someone for a year is roughly $25,000. That means if only one percent of each year’s released inmates stay out of trouble, taxpayers will save nearly $200 million annually — and the pool of troubled ex-cons looking to steal your car stereo will be that much smaller. “Success in implementing the Affordable Care Act has the potential to decrease crime, recidivism, and criminal justice costs, while simultaneously improving the health and safety of communities,” sums up a recent report by the federal Department of Justice.

It all looks great on paper. But there are significant obstacles to making this work in the real world. One is the simple fact that many former prisoners aren’t even aware of their new entitlements. “I don’t really know what Obamacare is,” says Ernest Kirkwood, a Transitions client who spent 29 years in prison, when I tell him I’d like to talk to him about the new health care regime. “I never read the newspaper.”

Making services available is one thing. Getting people whose judgment isn’t that great in the first place to actually use them is another. Plenty of drug users and mentally ill people don’t want to admit they have a problem. The stigma that persists around mental illness keeps some should-be patients away. Richard Rawson, a professor of psychiatry specializing in substance abuse at the University of California, Los Angeles, points out that an earlier experiment that provided residential treatment to just-released drug offenders didn’t work as well as hoped. “People said, ‘I just got out, I don’t want to be in rehab for another year,’” he says.

January 20, 2014 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, January 15, 2014

SCOTUS again struggling with state-federal crime intersection in Castleman

The Supreme Court today had oral argument in a challenging federal criminal case today, and SCOTUSblog has lots of great coverage of the issues and today's argument in US v. Castleman thanks to two post today by Amy Howe. Here and links to both SCOTUSblog posts, along with the start of the two lengthy entries:

Argument preview: Court once again considers when prior state convictions result in federal penalties

Some federal laws impose or enhance penalties based on the defendant’s prior criminal convictions. For example, the Armed Career Criminal Act requires a longer sentence for a defendant who has been convicted of being a felon in possession of a firearm and has three prior convictions for “violent felonies.” Even though Congress generally defines terms like “violent felonies,” those definitions may not always match up with the elements of a crime under state or tribal law, requiring the courts to determine whether a particular state offense is a qualifying prior conviction for purposes of federal law.

That is the question before the Court this morning in the case of James Castleman, in United States v. Castleman. The federal government charged Castleman with a violation of a federal law, 18 U.S.C. § 922(g)(9), which prohibits someone who has been convicted of a “misdemeanor crime of domestic violence” from possessing a gun. The statute defines “misdemeanor crime of domestic violence” as a misdemeanor under federal, state, or tribal law (1) by someone who (as relevant here) has a child with the victim, which (2) “has as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.”

Argument report: Balancing over- and under-inclusiveness

After first tackling the constitutionality of a Massachusetts law that imposes a thirty-five-foot buffer zone around abortion clinics in that state, this morning the Justices then turned to interpreting the U.S. Code – specifically, a provision that prohibits someone who has been convicted of a “misdemeanor crime of domestic violence” from possessing a gun. At the end of the oral arguments in United States v. Castleman, there seemed to be dissatisfaction with the interpretations advanced by both sides, possibly leaving room for a compromise suggested by Justice Elena Kagan.

January 15, 2014 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Saturday, January 04, 2014

"Juvenile Lifers and Judicial Overreach: A Curmudgeonly Meditation on Miller v. Alabama"

The title of this post is the title of this notable new paper now available on SSRN and authored by Frank O. Bowman III.  Here is the abstract:

This Article considers with a skeptical eye the Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), finding unconstitutional under the Eighth Amendment’s Cruel and Unusual Punishments Clause all laws subjecting murderers who killed before their eighteenth birthdays to a sentence of mandatory life without parole (“LWOP”).

Miller and Graham v. Florida, 130 S. Ct. 2011 (2010), in which the Court voided statutes imposing life without parole on juveniles who committed non-homicide crimes, are striking for several reasons. First, they impact juvenile justice because the Court has continued down the path it took in Roper v. Simmons, 543 U.S. 551 (2005), when it ruled the death penalty cruel and unusual for juveniles, regardless of the crimes they committed, and declared categorically that the relative immaturity of juveniles made them less culpable for crime and thus both ineligible for certain very harsh punishments and subject to different procedures than adults for others. Second, the Court’s reasoning in Miller and Graham has potentially far-reaching implications for the sentencing of adults. These opinions extend to non-capital crimes the unique body of Eighth Amendment law the Court had hitherto restricted to death penalty cases. And the language of Justice Elena Kagan’s majority opinion in Miller casts at least some doubt on the power of legislatures to impose any mandatory sentence, whether of death or a term of imprisonment.

This Article contends that, while the results of Miller and Graham are gratifying as sentencing policy, the opinions announcing those results are troubling as a constitutional matter because they are badly theorized and because they are two strands of a web of decisions in which the Court has consistently used doubtful constitutional interpretations to transfer power over criminal justice policy from the legislatures – state and federal – to the courts.

January 4, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Who Sentences? | Permalink | Comments (22) | TrackBack

Thursday, January 02, 2014

A victim's perspective from Iowa on the aftermath of Graham and Miller

This notable local article from Iowa, headlined "As juvenile re-sentencing looms, murder victim's family speaks out," provides a useful reminder of the folks other than juvenile offenders who are very concerned with how the Supreme Court's rulings in Graham and Miller are going to be implemented in the states. Here are excerpts:

34 Iowa criminals currently sit in prison cells who, once sentenced to life in prison as juveniles, can file for the possibility of parole.  In 2010, the U.S. Supreme Court ruled sending a juvenile to life in prison without the possibility of parole is unconstitutional. Gov. Branstad then commuted those life sentences to 60 years in prison.  2012, however, brought the Iowa Supreme Court to rule 60 years as still unconstitutional.

“Because of the nature of the crimes that these individuals have committed, it has a very serious impact on the criminal justice system,” said Black Hawk County Attorney Tom Ferguson.

The ripple effect of these two court rulings extends past those just sitting in prison cells. Karen Salisbury was murdered in her Evansdale home in 1998.  17-year-old Matthew Payne was charged with the killing; a first-degree murder charge that, back then, sent him to spend the rest of his life in prison.

Salisbury’s three daughters — Rhonda Hoffman, Marsha DeWiese and Vicky Bolin — said they wrestled with those 1998 images of their mother’s death for years.  Now — they must relive the nightmare.  Payne, along with the other 33 Iowa criminals, can file to correct a now illegal sentence, hoping for parole.  “I don't ever want to have to go into the grocery store or somewhere and run into him,” Hoffman said.

Attorneys said parole, however, is not guaranteed.  A judge could grant the possibility of parole, or not at all.  Nevertheless, these parole hearings are annual; potentially bringing families back to the court room year after year.  “Every year if that comes up every year I will be there and I will make sure they hear my voice and they don't let him out,” Bolin said.

The daughters said the possibility of parole for Payne is extremely concerning for them; a thought that is nearly unbearable.  “What good are they in this society when they've been in prison for so long and know nothing else,” DeWiese said.

Hoffman said if Payne is ever granted parole, she hopes she never has to see him. “Don’t come back to Waterloo, I’d go somewhere else.”

January 2, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (23) | TrackBack

Tuesday, December 31, 2013

Feds now saying Lynne Stewart should get compassionate release from prison term

This notable new AP story, headlined "Government asks NY judge to release ailing ex-terror trial lawyer from 10-year prison term," provides the grist for a useful final post for 2013. Here are the basics:

A dying former civil rights lawyer convicted in a terrorism case and sentenced to 10 years in prison is entitled to compassionate release because she has less than 18 months to live, prosecutors and the Federal Bureau of Prisons told a judge on Tuesday.

In a letter to U.S. District Judge John G. Koeltl, the government said 74-year-old Lynne Stewart was suffering from breast cancer that has metastasized to the lungs and bones. "Despite aggressive treatment, doctors have advised that her prognosis is poor," the letter said, adding she also has been diagnosed with anemia, high blood pressure, asthma and Type 2 diabetes. Stewart has been undergoing treatment at the Federal Medical Center in Carswell, Texas, as supporters have rallied to get her released. Once released, the letter said, she will live with her adult son in Brooklyn.

Stewart was convicted of helping a blind Egyptian sheik communicate with followers while he was serving a life sentence in a plot to blow up five New York landmarks and assassinate then-Egyptian President Hosni Mubarak. She has been imprisoned since 2009 and wasn't scheduled for release until August 2018.

She was first diagnosed with breast cancer in November 2005. The cancer went into remission but was discovered to have recurred after she was imprisoned. Stewart has written to the judge, saying she doesn't want to die in "a strange and loveless place" and wants to go home.

A previous compassionate-release request was denied in part on the grounds that Stewart had more than 18 months to live, though the judge said he would act promptly if the Federal Bureau of Prisons agreed she had less than 18 months to live and granted a compassionate-release application.

A federal appeals court in 2012 upheld Stewart's 10-year sentence, saying she earned it through serious crimes that she refused to acknowledge. The 2nd U.S. Circuit Court of Appeals said it was fair to boost Stewart's sentence from the two years and four months she was given in 2006. The three-judge panel that had ordered Stewart to be resentenced said it disagreed with her claim that her sentence was "shockingly high." It accused her of exhibiting a "stark inability to understand the seriousness of her crimes."

Arguably the biggest sentencing story of 2013 has been a (slight?) softening around the edges of a very harsh federal criminal justice system, largely as a product of the work of Attorney General Eric Holder. It is thus perhaps fitting that on the last day of 2013, federal officials are now supporting compassionate release for Stewart, only a few years after they succeeded in a multi-year, multi-court fight to seek to ensure she received a lengthy prison sentence that could have ensured she had to die in prison.

December 31, 2013 in Celebrity sentencings, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (33) | TrackBack

Friday, December 27, 2013

Fascinating lead-crime-rate forecast that incarceration levels will decline significantly in coming years

Regular readers know I am very intrigued by (but still at least a bit skeptical concerning) the social science research that suggest that lead exposure level better account for variations in violent crime rates than any other single variable.  Consequently, I have to link to this new item sent my way by researcher Rick Nevin, titled "It Will Not Take 88 Years to End Mass Incarceration," which responds to a recent commentary by sentencing reform advocates (noted in this post) lamenting how little incarceration rates have declined even as crime has continued its historic decline over the last decade. Without vouching for the data, I am eager to highlight Nevin's concluding sentiments in this interesting little data discussion:

Nevin (2000) showed that per capita use of lead in gasoline from 1941-1975 explained 90% of the variation in the USA violent crime rate from 1964 to 1998.  Nevin (2007) showed the same relationship between preschool lead exposure trends and violent and property crime trends in the USA, Britain, Canada, West Germany, Finland, France, Italy, New Zealand, and Australia.  The time lag in every nation reflected lead-induced neurodevelopmental damage in the first years of life affecting behavior in the late-teens and 20s when offending peaks.  The best-fit lag for burglary was 18 years, reflecting property crime arrests that have historically peaked at ages 15-20.  The best-fit for violent crime was 23 years, consistent with violent crime arrest rates that have peaked in the early-20s.

The ongoing violent crime rate decline (down 32% from 1998-2012) has been slowed by an increase in older offenders born across years of pandemic lead poisoning.  This has been slowed by an increase in older offenders born across years of pandemic lead poisoning. This rise in arrest rates for older adults has occurred even as juvenile arrest rates have fallen to record lows, due to ongoing declines in lead paint exposure over the 1990s.

The Sentencing Project and other advocates for sentencing reform need to acknowledge the extreme divergence in arrest and incarceration trends by age. Opponents of sentencing reform often assume that “mass incarceration” is a key factor behind the USA crime decline over the past two decades, but arrest and incarceration trends by age discredit that theory: The largest arrest rate declines have been recorded by younger age groups that have also recorded large incarceration rate declines, while arrest rates have increased for older age groups despite rising incarceration rates for older adults.

Arrest and incarceration trends by age also cast doubt on the theory that budget constraints and public policy reforms have been a large factor in the overall prison population decline over recent years. The declining prison population is clearly not explained by shorter prison terms or early releases for older prisoners, but by steep arrest rate declines for younger Americans. It isn’t the public policies that have changed: It’s the people, and specifically the percent of people poisoned by lead exposure in early childhood.

Some recent related posts:

December 27, 2013 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Scope of Imprisonment | Permalink | Comments (9) | TrackBack

As fights over John Hinckley's fate continue three decades after his violent crime, what are enduring CJ legacies or lessons?

Reagan_assassination_attempt_3The question in the title of this post is prompted by this interesting recent Politico piece headlined "Hinckley home for the holidays."  Here are the basics:

John Hinckley will almost certainly be home for the holidays, which will bring much joy to his 86-year-old mother but not to the U.S. Justice Department.  No matter whether there has been a Democrat in the White House or a Republican, the Justice Department has argued against letting Hinckley out of the mental hospital where he has been incarcerated since 1982.

His family, lawyers and a number of psychiatrists and psychologists who have treated Hinckley over the years say he has responded successfully to treatment, is no longer a danger to himself and others, and that he should be allowed more and more days outside the hospital.

Hinckley had been allowed 10 days per month to visit his mother in Williamsburg, Va.  He is not allowed to make visits in Washington because the president of the United States lives in Washington and the last time Hinckley came across a president, Hinckley shot him. Hinckley is also not allowed to visit his sister in Dallas, because the home of former President George W. Bush is a 10-minute walk away.  Even in Williamsburg, Hinckley is trailed by Secret Service agents, and he must carry a GPS-enabled phone that tracks his whereabouts.

On average, a person convicted of a violent crime in America serves about five years in prison.  Hinckley has served 31 years in St. Elizabeths Hospital, even though he was found not guilty of any crime because a jury decided he was insane at the time he shot Ronald Reagan, press secretary James Brady, D.C. police officer Thomas Delahanty and Secret Service agent Timothy McCarthy....

Last week, a federal judge extended the amount of time Hinckley can spend outside St. Elizabeths to 17 days per month.  The seriousness with which Hinckley’s request for added visiting time was treated is indicative of how seriously the government still takes his case: Over a four-month period, lawyers battled for two weeks, and the judge’s decision was an incredible 106 pages long....

The hearing did provide some droll moments.  In arguing that Hinckley was not fit to be outside of his mental hospital for a longer period of time, the government said one of his girlfriends at St. Elizabeths was “floridly psychotic.”  To which Hinckley’s lawyer replied: “Who is he going to meet at St. Elizabeths?”

Hinckley’s case contains some valuable lessons:  The insanity defense is very rarely used in America and usually fails when it is used.  Hinckley succeeded, but what has it gotten him?  More than three decades in a mental hospital may be better than more than three decades in prison, but unlike a prisoner serving a sentence with a maximum number of years, Hinckley, 58, can be locked up in the hospital until he dies.

Before Hinckley shot Reagan, he had been stalking Jimmy Carter.  In October, 1980, Hinckley was arrested at Nashville’s Metropolitan Airport for concealing three handguns and 30 rounds of ammunition in his carry-on luggage.  He paid a fine of $62.50 and was released from custody.  Four days later, Hinckley, who had undergone psychiatric treatment for depression, went to Dallas, where he bought a gun and six bullets at a pawnshop for $47.  Hinckley used this weapon to shoot Ronald Reagan, James Brady and the two law enforcement officers.

Today’s Brady law, which was enacted in 1993 and requires background checks for some gun purchases, is named for James Brady and might have prevented Hinckley from buying that gun.  In 1988, his last full year in office, Reagan endorsed the Brady Bill, even though Reagan was not a fan of gun-control laws.  His personal affection for Brady might have had something to do with it, but Reagan also said it was a good idea to see if a potential gun buyer had “a record of any crimes or mental problems, or anything of that kind.”  The National Rifle Association condemned Reagan’s statement.

St. Elizabeths, built in 1855 as the Government Hospital for the Insane, once housed 8,000 patients.  As the hospital crumbled from neglect, and as laws and attitudes about mentally ill people changed, the population dropped to its current 300 and a new hospital was built in 2010.   St. Elizabeths no longer needs all of its vast 350 acres, where feral cats still roam, some of which are cared for by Hinckley, who often visits PetSmart on his home visits right after he goes to Wendy’s.  About 176 acres of the property will be used for the new $3.4 billion headquarters complex of the Department of Homeland Security.

As most criminal law professors know, one of the legal legacies of Hinckley's case was a significant retrenchment of insanity doctrines in many states. But as Hinckley's own case may highlight, perhaps that it is ultimately a blessing and not a curse even for mentally unstable criminal defendants. And, as most gun control advocates know, Hickley's crime created a uniquely potent person and symbol in support of gun control laws. But as recent high-profile deadly shootings highlight, there is reason to perhaps fear that the US is unable or unwilling to pursue gun control laws that would be likely able to prevent mentally unstable persons from having access to firearms.

December 27, 2013 in Celebrity sentencings, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (8) | TrackBack

Thursday, December 26, 2013

Extending Graham and Miller, Massachusetts SJC bars LWOP for all juve offenders

Mass sjcThanks to this Christmas night post at How Appealing, I just discovered that on Christmas eve the Supreme Judicial Court of Massachusetts issued two big related rulings (available here and here) which not only held that the Supreme Court's Miller ruling is to be applied retroactively but also that "all life-without-parole sentences for juvenile offenders, whether mandatory or discretionary, violate art. 26 of the Massachusetts Declaration of Rights."  Because I am on the road today, I will not have the chance to consume this significant rulings fully, but I can here link to and quote from this lengthy report on the rulings from the Boston Globe:

The state’s highest court struck down life sentences without parole for juveniles on Tuesday, saying scientific research shows that lifelong imprisonment for youths is cruel and unusual because their brains are “not fully developed.”

The Massachusetts Supreme Judicial Court decision is retroactive, meaning that, as one example, John Odgren, the suburban special needs student who stabbed 15-year-old James F. Alenson in the bathroom at Lincoln-Sudbury Regional High School on Jan. 19, 2007, and received a mandatory life sentence, now could have a chance of parole one day.

“We are very hopeful that the parole board is going to examine these kids’ lives carefully and will be giving them a real meaningful opportunity for release,” said Patty Garin, Odgren’s attorney. But some district attorneys said they were concerned about the ruling and would argue against parole in some cases.

The decision is a marked reversal for Massachusetts, where juveniles found guilty of murder have faced some of the harshest laws in the nation. The decision also is notable for its reliance on the growing field of research into the juvenile brain.

“Simply put, because the brain of a juvenile is not fully developed, either structurally or functionally, by the age of eighteen, a judge cannot find with confidence that a particular offender, at that point in time, is irretrievably depraved,” the court wrote. “Therefore, it follows that the judge cannot ascertain, with any reasonable degree of certainty, whether imposition of this most severe punishment is warranted.”...

The ruling goes farther than the Supreme Court decision in 2012 that struck down automatic sentences of life without parole for juveniles.... Because the Massachusetts high court’s decision is retroactive, prisoners sentenced as juveniles will “at the appropriate time” be afforded a parole hearing.

Lawyers said such inmates will have to have served at least 15 years before being considered for parole. There are currently 63 inmates in Massachusetts who were sentenced when they were juveniles to life sentences without the possibility of parole for first-degree murder....

The decision drew immediate praise from Governor Deval Patrick, who in September signed legislation that raises the age of juvenile jurisdiction from 17 to 18 and has pushed to reduce the number of teenagers sentenced to life without the possibility of parole. “I applaud today’s Supreme Judicial Court’s ruling,” the governor said in a statement. “Young people, even ones who commit terrible crimes, are developmentally and now constitutionally different from adults. Our SJC has wisely held that, while violent felons will be held accountable, youthful ones deserve every opportunity for rehabilitation.”

Some district attorneys questioned the decision. Essex District Attorney Jonathan W. Blodgett said the ruling will strip away the closure that victims’ families believed they had gained. “I am concerned for families who thought they had finality about their loved ones being murdered,” said Blodgett, who is president of the Massachusetts District Attorneys Association. “Now they have to go through these parole hearings.”

Suffolk District Attorney Daniel F. Conley said in a statement, “We are mindful of the literature on young adults’ brain development, and we already exercise great discretion in charging juveniles with murder. But we’re also keenly aware of the cases at issue here. Some fact patterns demand life imprisonment. Some defendants do not deserve parole. We will argue — as often and as forcefully as necessary — against parole in those cases.”

For years, Massachusetts has had some of the most punitive penalties in the country for juvenile offenders convicted of murder. Two decades ago a series of brutal murders galvanized public demands for harsher penalties. In 1996, legislators responded with a law that mandated that juveniles 14 years and older charged with murder be tried as adults.

Because Massachusetts’ penalties for first-degree murder is mandatory life without parole juveniles found guilty of that crime faced a lifetime of incarceration. As a result, Massachusetts became a leader in the number of youths facing life sentences without parole.

As of last year, the majority of youth with such sentences were concentrated in Massachusetts and four other states: California, Louisiana, Michigan, and Pennsylvania, according to the Campaign for the Fair Sentencing of Youth. “People thought if we have an extreme response, kids would stop doing bad things, and that has not turned out to be true,” said Naoka Carey, executive director of Citizens for Juvenile Justice, a nonprofit based in Massachusetts.

Carey said the SJC ruling brings Massachusetts back to the middle — she noted that other states that have abolished life without parole for juveniles include Wyoming, Colorado, and Texas. “We’re in some conservative company,” she said.

State legislative leaders said they plan to move quickly to overhaul juvenile sentencing laws that might conflict with Tuesday’s ruling. “The legislation currently pending that require the eradication of such sentences will be fast-tracked to ensure constitutional compliance with the ruling of the SJC,” said Representative Eugene L. O’Flaherty, a Chelsea Democrat who is the House chairman of the Judiciary Committee. Carey said there are currently a number of legislative options, but that any law will have to give meaningful opportunity for parole.

The SJC’s ruling came in the case of Gregory Diatchenko, who was 17 in 1981 when he murdered a man in a car in Kenmore Square. He has been in prison for more than three decades. The court ruled that he was eligible to be considered for parole immediately....

“I’m happy that Gregory Diatchenko is going to have a meaningful opportunity for release, which he deserves. He’s a living embodiment of what the [Supreme Court] case was all about. He does not deserve to die in prison. He’s not who he was when he was 17,” said Benjamin Keehn, Diatchenko’s attorney. Keehn was on his way to see his client at MCI Norfolk on Tuesday to relay the news. He said his client is 49 years old, two credits shy of a bachelors degree, and has been a Buddhist for over 10 years.

The court also ruled in the separate case of Marquise Brown, who was convicted of first-degree murder in a 2009 slaying. He has not been sentenced. The court ruled that because Brown was 17 at the time of his crime, he cannot be sentenced to life without parole.

The Diatchenko ruling was unanimous. In a concurring opinion, Justices Ralph Gants, Barbara Lenk, and Fernande R.V. Duffly, emphasized that defendants need to have a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” They urged that decisions on parole be informed by an attention to the “distinctive attributes of youth.

December 26, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack