Thursday, May 19, 2011
Federal prosecutors cut probation deal for rich woman who hosted cocaine parties for years!?!?
I am about to head off (and off-line) for the US Sentencing Commission's annual conference, where tomorrow I will be on a panel discussing plea bargaining. With that background, and especially given that crack and powder cocaine sentencing will be a frequent topic of discussion, I found especially timely this remarkable (and shocking?) local federal story out of Montana. The piece is headlined "Billings businesswoman sentenced for holding cocaine parties," and here are the details:
A U.S. District Court judge on Wednesday sentenced Billings businesswoman Dru Cederberg to two years probation, including eight months of house arrest, and fined her $550,000 for attempting to maintain a drug-related premises.
For about a decade, Cederberg, a millionaire and an heir to the Brach's Confections fortune, hosted series of dinner parties at her home. After the dining ended, people moved to the back of her home, and Cederberg laid out cocaine in the bathroom for the guests' use, testimony showed.
Cederberg, 52, is the latest person convicted and sentenced in the high-profile conspiracy involving cocaine in Billings and the surrounding area. Cederberg had testified for the federal government when her drug dealer and friend, Domingo Baez, was convicted. She also testified in the trials of some other defendants.
U.S. District Judge Charles C. Lovell said his first inclination was to reject the proposed plea agreement worked out between the U.S. Attorney's Office and Cederberg's lawyer that she be sentenced to two years' probation and a $50,000 forfeiture or fine. "The plea agreement on its face is exceptionally lenient compared to the sentences imposed on the other defendants," Lovell said. Lovell told Cederberg she was more culpable than Terri Jabs Kurth, who served eight months in prison, and was second in culpability only to Baez, who is serving 15 years in prison.
He did praise her role in cooperating with the Justice Department and testifying against some other defendants. But then Lovell tacked on an additional $500,000 fine and said he would have fined Cederberg more had he been allowed to do so under federal sentencing guidelines.
Marcie Zinke, a federal probation officer, had recommended that Cederberg be incarcerated for 18 months, be sentenced to three years of supervised release afterward and be fined $250,000. "The reason I have accepted this plea agreement ... is certain mental health concerns and the yeoman's service you provided to the United States," Lovell said.
He said the evidence would support a greater charge than the Justice Department brought forward. "But I think the appropriate penalty here is a financial one, rather than one of incarceration," he said. "A prison sentence is not appropriate for you -- at least not at this time."
Cederberg has net assets of at least $14 million, including three homes valued at a combined $3 million, including the $2 million home in which she lives, Lovell said, quoting the federal probation officer's report. Cederberg is a single mother with a 15-year-old daughter....
Friends and business associates, in letters submitted to the court, testified to Cederberg's compassion and widespread anonymous generosity in the Billings area.
"You do have an extreme history of a usage of illegal drugs, I think beginning at about age 17," Lovell said in sentencing her. "I do understand that you have given up that habit and are not using any illegal drugs. You are what we would refer to as a wealthy individual here in Montana." Cederberg's attorney, Mark Parker, testified that his client has said she hasn't that used cocaine since 2008. Lovell told Cederberg he believes she introduced the use of cocaine to a number of who otherwise may not have used the illegal drug....
Cederberg will be required to wear monitoring devices provided by the probation officer so it can monitor her locations. She cannot leave her home for eight months except for medical reasons, court appearances and any other activities approved in advance by the court.
Lovell said each one of the dinner parties where Cederberg laid out cocaine for her guests' use amounted to "a distribution of an illegal controlled substance," Lovell said, saying it amounted to thousands of dollars worth of drugs.
Cederberg's attorney presented the $50,000 check agreed to under the plea deal to the judge, and the Thaggard turned it over to someone from the U.S. Marshals Service. As for the $500,000 additional fine, Lovell told Cederberg: "If you pay the fine within 30 days, the court won't apply interest to that amount. I think from your net worth, you'll be able to do it."
I could and perhaps should make this remarkable case the focal point of an entire federal sentencing course, because almost every hot-button issue in modern federal drug sentencing policy and practice is implicated here. What an amazing example this case is concerning, e.g., charge bargaining by prosecutors, a sweet plea deal for a cooperator, lenient (and special?) treatment for a female and well-to-do (white?) defendant involved with powder cocaine and not crack, the relationship between prison, home confinement and financial sanctions, the impact of addictions and mental health on crime and punishment, and the role and impact of prosecutors, probation officers and judges at sentencing.
Especially given the addition of a big fine (which I wish was even higher), I am not asserting that the deal cut by prosecutors and accepted by the district judge here is misguided or unjust. Indeed, a pretty good argument can be made in this context that Dru Cederberg's novel and notable sentence does achieve 3553(a)'s mandate of being "sufficient but not greater than necessary" to achieve the punishment goals set forth by Congress. However, given that a large number of poor urban men and women are serving not merely years, but decades, in federal prison for distributing small amounts of crack cocaine, it is still somewhat stunning to hear of a case of involving rich rural woman getting probation for hosting cocaine parties for a decade.
Tuesday, May 17, 2011
Judge Weinstein's final order finding Eighth Amendment prohibits 5-year minimum term for young child porn offender
In March in this post, I reported on Judge Jack Weinstein's "Tentative Draft for Discussion Purposes" in United States v. C.R., in which Judge Weinstein suggesting a 30-month sentence was appropriate for a young child porn offender after deciding that application of the statutory five-year mandatory minimum would be constitutionally problematic. I have learned from a helpful reader that Judge Weinstein has now filed his final opinion in C.R. in which he decides that a five-year mandatory minimum prison term as applied to this defendant violates the Eighth Amendment's prohibition against cruel and unusual punishment. I have the full opinion available for download below, and here is just some of many notable passages from the very long opinion (which covers a lot more than just the constitutional issues discussed below):
The law described in this section, as well as the science and particulars of defendant‘s background, leads to the conclusion that, as applied to this defendant, a five-year term of imprisonment would be cruel and unusual. Requiring five-years of incarceration, most of it without effective treatment, would constitute a violation of the Constitution.
Mere peer-to-peer file sharing of pornography by teenage boys, even if it includes pictures of minors, does not signify the sort of social deviance which would support long minimum prison terms for such immature persons. A teenager confused about his developing sexuality in a splintered and dysfunctional family, who uses easily available Internet facilities to look at lewd pictures of children, is not fully responsible. The defendant was fifteen and had just entered puberty when he began viewing these pictures. And, even at nineteen, he was emotionally much younger than his chronological age.
Courts have recognized these developmental factors in cases involving teenagers and child pornography. Interest in lewd images of minors by one who is emotionally a minor himself does not manifest the same kind of sexual perversion as would a mature adult‘s focus on the same pictures. In United States v. Stern, 590 F. Supp. 2d 945, 953 (N.D. Ohio 2008) the district court emphasized the peer-level nature of the sexual interest when imposing a sentence far below the guideline range for a college student who had begun viewing child pornography at age fourteen. In addition to citing the scientific literature on "the unformed nature of the adolescent brain," id. at 953 n.6, it recognized that "the 14-year-old is acting on normal impulses in an unacceptable manner (and may well be unaware of the impact of his crime), whereas the forty-year-old is acting on deviant impulses and is expected to understand the terror that this crime inflicts upon its victims." Id....
A five-year minimum sentence as applied to this defendant serves no legitimate penological goal. "A sentence lacking any legitimate penological justification is by its nature disproportionate to the offense" and therefore, unconstitutional under the Eighth Amendment." Graham, 130 S. Ct. at 2028. Neither "retribution," "deterrence," nor "rehabilitation," id. at 2028-2029, justifies a five-year mandated prison sentence for an adolescent, plus what could constitute lifelong strict supervised release. Excessive and unnecessary imposition of suffering and destruction of opportunity for a constructive life as a youngster constitutes cruel and unusual punishment. See David Gray, Punishment as Suffering, 63 Vand. L. Rev. 1619, 1692-93 (2010) (discussing relationship between suffering and punishment and arguing that "excessive suffering requires remediation").
One the one hand, treatment and supervision within the community are necessary for C.R. to mature into a responsible, productive, law-abiding individual. Requiring the defendant to spend the formative years of his young adulthood in a sex offender penal treatment unit, on the other hand, presents significant risks. Hr‘g Tr. 216, Jan. 26, 2011 (Testimony of Dr. Kaplan) ("He could spend three or five-years fantasizing about 12-year-old boys and being reinforced by pedophiles . . . and come out with more of an interest in young boys."). While the treatment program at FMC Devens will provide the defendant an opportunity for focused therapy, a sentence of five years in such an environment for an immature and impressionable defendant is counterproductive.
Might Arizona mass murderer Jared Loughner be incompetent to stand trial?
The question in the title of this post is prompted by this Wall Street Journal article headlined "Loughner's Mental Competence Is Doubted." The piece starts this way:
Two federal court filings Monday in the criminal case of the man accused in the January shooting of Rep. Gabrielle Giffords and 18 others in Tucson, Ariz., strongly suggest that two health professionals who evaluated his mental state have determined he isn't competent to stand trial, according to legal experts.
The filings, one by the defense and one by the prosecution, indicate that a competency hearing for Jared Loughner scheduled in a Tucson federal court for May 25 could largely be a formality. Both filings agreed that the two doctors who evaluated Mr. Loughner wouldn't need to testify. The filings also said neither side would dispute the doctors' written reports.
If these reports, which are under seal, hadn't concluded Mr. Loughner was incompetent to stand trial, the defense would almost certainly be planning to put up a fight, experts said. "My initial gut reaction would be that both have found him not competent to stand trial," said Kurt Altman, a former assistant U.S. attorney in the Phoenix office who isn't involved in the case. Mr. Altman said defense lawyers wouldn't object to a finding of incompetence since it would delay Mr. Loughner's trial. Mr. Loughner could face the death penalty.
At the same time, prosecutors wouldn't be in a position to argue the findings of the two doctors, given that they pushed to have the competency exams done, say people familiar with the matter. A decision by Judge Larry Burns, who is presiding over the case, that Mr. Loughner was currently incompetent could postpone any trial of Mr. Loughner for months or even years, say legal experts.
In cases where a defendant is found incompetent to stand trial, the defendant is kept in custody until it is determined he is able to understand the charges against him and able to aid his lawyers in his own defense. Such people could be treated with drugs, possibly without their consent, legal experts said.
Notable federal judge gives notable (probation?!?) sentence in "despicable" child porn case
A helpful reader alerted me this local press story, headlined "Rio Grande City man gets five years probation in child pornography case," reporting (somewhat confusingly) on a notable federal child pornography sentencing decision coming from a notable federal sentencing judge. Here are the (somewhat unclear) details as reported in this piece:
Ethan Saenz clenched his hands tightly behind his back as he begged a federal judge Monday to grant him a second chance at life, vowing to never have anything to do with child pornography again. And U.S. District Judge Ricardo Hinojosa complied, citing the 25-year-old’s history of physical and sexual abuse as a child when he sentenced him with just five years of probation for possession of child pornography.
“If you look at his childhood, wouldn’t you say…this is somebody who’s actually been a victim himself?” the judge asked. “This is someone’s who’s different. He hasn’t physically abused somebody like he’s been physically abused as a child.”
Arrested in 2005, the Rio Grande City man faced more than six years in federal prison after investigators found more than 100 images and several videos of boys participating in sexual acts, sometimes bound and gagged and often with older men on Saenz’s computer. Though he described that pornographic collection as “despicable,” Hinojosa did not concede to a federal prosecutor’s urgings to grant Saenz a heavy sentence.
Assistant U.S. Attorney Juan Felipe Alanis was unconvinced Saenz deserved a lesser sentence because of his troubled history, which included losing his mother early in life to a bus accident, an absent father and a foster mother who hit and molested him and another child in her care. “Many of the people have hard lives similar to him, but they don’t turn to child pornography,” Alanis said. “It’s an excuse the government sees a lot.”
Yet Hinojosa said Saenz’s circumstances were too different to ignore and noted he never took his actions a step further and actually preyed on young children like other suspects the judge has encountered. He also said Saenz had made progress since his initial plea of guilt, including five years of home confinement, earning a bachelor’s degree at the University of Texas, Pan American, staying away from controlled substances and seeking psychological care.
The judge also referenced the positivity he saw in many statements submitted on Saenz’s behalf from his professors, pastors and more.... Under his sentence, Saenz also must wear an electronic tracking device for another 24 months and register as a sex offender for the remainder of his life, updating his residence when he moves.
Though the headline of this press report call the sentence for Saenz "five years probation," it appears the defendant has already been subject to a lengthy term of home confinement and will be subject to continued electronic monitoring for two years. Also unclear is whether the judge here used traditional departure authority or 3553(a) variance discretion to impose the way-below-guideline sentence here despite the defendant's "despicable" crime.
But while the exact sentence here is a bit unclear, what is clear is that even a member of the US Sentencing Commission, and one who was the USSC Chair during the recent run-up in child porn prosecutions and harsh sentences, recognizes big problems with the usual operation of the federal child porn guidelines in some cases. As informed readers know, U.S. District Judge Ricardo Hinojosa is a current member and the former Chair of the US Sentencing Commission. For that reason, I have an inkling that his sentence here might have used departure authority rather than variance discretion to do justice. Whatever the particulars, it would be really great if Judge Hinojosa produced a written opinion to explain the basis for his judgment that here probation(?) was a "sufficient but nor greater than necessary" sentence for at least one federal child porn offender.
"Setting an Agenda for Family-Focused Justice Reform"
The title of this post is the title of this new report from the Family Justice Program of the Vera Institute of Justice. Here are excerpts from the report's executive summary:
Research shows that incarcerated youth and adults who have contact with supportive family members have better outcomes after their release. This finding has obvious implications for the corrections, community corrections, and juvenile justice fields. But it also has significant, if sometimes less apparent, consequences for other systems, such as schools, child welfare agencies, health care, and law enforcement.
The Vera Institute of Justice brought together national experts from a range of fields to talk about the next steps for family-focused justice reform. The conversation sharpened the definition of a family-focused approach as one that includes four key components: it is multidisciplinary, it adopts a broad definition of family, it is strength-based, and it is applicable along the continuum of a person’s involvement with the justice system. Participants in the roundtable also described many actions that organizations can to take to leverage the positive influence of families and communities to support people involved in the justice system.
Drawing on that conversation, this report sets forth an agenda for family-focused justice reform ... [and] recommendations are offered to inspire people who work not only in juvenile or criminal justice, but in systems that feel the repercussions of related policy and practice on the local, state, or federal level. It is the authors’ belief that if agencies tap families as a resource, their work will be more effective, to the benefit of the communities they serve.
Friday, May 13, 2011
"Two Truths and a Lie: Stories at the Juncture of Teen Sex and the Law"
The title of this post is the title of this interesting-looking paper on SSRN by Michelle Oberman. Here is the abstract:
Contemporary laws governing adolescent sexuality are internally incoherent and chaotically enforced, and contemporary legal scholarship on the subject shies away from the core problem of addressing and remedying adolescents’ vulnerability in sexual encounters. In order to posit a meaningful relationship between the criminal law and adolescent sexual encounters, one must examine what we know about the nature of adolescent sexuality both from the academic literature on the subject and also from the perspective of the adults who control the criminal justice system’s response to teens’ sexual interactions.
This essay illuminates the intersection between coercive adolescent sexual encounters and the criminal justice system via an in-depth study of a 2003 rape prosecution involving two seventeen year-olds. Using the case as a map, I explore the broader implications of the prosecution by interviewing a variety of experts and by analyzing the contemporary literature on sexual norms among youth. Against this backdrop, I relate a series of interviews conducted with the major players involved in the prosecution: the prosecutors, the defense lawyer, the trial court judge and both appellate lawyers. Examining this single case from a variety of perspectives permits a deeper understanding of how the law endeavors to regulate adolescent sexual encounters and of why it fails.
Monday, May 09, 2011
"Immigration Consequences: A Primer for Texas Criminal Defense Attorneys In Light of Padilla v. Kentucky"
The title of this post is the title of this new law review by Mario Castillo, which is available now via SSRN. Here is the abstract:
A noncitizen convicted of violating a Texas state criminal statute is subject to a variety of harsh immigration penalties including deportation from the United States. Multiple variables determine whether a state criminal offense will trigger immigration deportation proceedings. A parallel concern is the impact that a state criminal offense may have on one of the routine offenses prosecuted in federal courts: illegal re-entry in violation of 8 U.S.C. sec. 1326. The Supreme Court has made it constitutionally impermissible for a criminal defense attorney to recommend the entry of a guilty plea in the absence of a basic, working knowledge of how that guilty plea will affect the noncitizen's immigration status.
This Article begins by introducing the reader to a survey of typical deportation proceeding invoking offenses (“DPIOs”) established by federal law. Part II illustrates, via examples, how immigration law's adoption of well-known criminal law terms does not necessarily require analogous definitions across both contexts. Part III then provides a brief overview of federal criminal sentencing enhancement law, on which much of immigration law relies, and closes by providing the distinct character that immigration proceedings have from their antecedents in federal criminal sentencing. Part IV apprises the reader of select federal sentencing enhancements especially germane to noncitizens that unlawfully reenter the Nation after having been deported. Finally, an attached appendix charts in detail, offense by offense, the immigration and federal sentencing consequences for select Texas criminal statutes.
Sunday, May 08, 2011
Reviewing two decades of three strikes in California
This piece in the San Francisco Chronicle, headlined "Politics of 'three strikes' law," reviews some highlights from two decades of experience with California's three strikes law. Here are excerpts:
The "three strikes and you're out" law passed in the aftermath of the awful 1993 kidnapping and murder of 12-year-old Polly Klaas was advertised as a way to keep violent predators in prison. But the initiative passed by California voters was laden with unintended consequences -- and cannot be changed in any significant way without another statewide vote.
More than half of the third "strikes" that have triggered a 25-to-life sentence involve neither serious nor violent felonies. Even shoplifting can be escalated to a third-strike felony -- bringing life imprisonment -- for those with prior convictions of petty theft.... [T]he "three strikes" law has also led overzealous prosecutors, particularly in Kern and Riverside counties, to seek and receive life sentences against sad-sack or drug-addicted offenders whose crimes would otherwise merit probation or short incarcerations....
About 8,700 California inmates are now serving life sentences under the "three strikes" law. One of the most potent arguments for not tampering with the law is that it has kept down crime. In the broadest sense, it's possible to argue that locking up people with criminal records for the rest of their lives will reduce crime. Let there be no doubt: The state is a safer place because some of them will be tucked into their cell beds until well into senior citizenship. But their danger to society is anything but universal.
Violent crime rates are at half-century lows almost everywhere, including the state of New York, which does not have a "three strikes" law. Criminologists have found no meaningful statistical distinctions between California counties that aggressively pursue "three strikes" sentences and those that do not.
This law comes with a considerable price, both in dollars and in the equity of our system of justice. California is the only state among the 23 that have "three strikes" laws that does not require the life-sentence-triggering offense to be a violent or serious felony.
Friday, May 06, 2011
"Fourth marijuana conviction gets Slidell man life in prison"
The title of this post is the headline of this local story from Louisiana, which a helpful reader brought to my attention. Here are the details:
Cornell Hood II got off with probation after three marijuana convictions in New Orleans. He didn't fare too well after moving to St. Tammany Parish, however. A single such conviction on the north shore landed the 35-year-old in prison for the rest of his life.
State Judge Raymond S. Childress punished Hood under Louisiana's repeat-offender law in his courtroom in Covington on Thursday. A jury on Feb. 15 found the defendant guilty of attempting to possess and distribute marijuana at his Slidell home, court records show.
Hood moved from eastern New Orleans to the Slidell area after he admitted to separate charges of distribution of marijuana and possession with intent to distribute marijuana on Dec. 18, 2009, in Orleans Parish Criminal District Court. He received a suspended five-year prison sentence and five years' of probation for each -- which was precisely the same penalty he got in that court after pleading guilty to possessing and intending to distribute marijuana on Feb. 22, 2005.
When Hood switched homes, he also requested a new probation officer based in St. Tammany. Authorities granted the wish, and the officer, Dustin Munlin, drove to Hood's place for a routine visit on Sept. 27, 2010. Munlin found nearly two pounds of pot throughout the house, according to court records. He alerted Sheriff's Office deputies. They arrested Hood, who apparently shared the King's Point house with his mother and young son.
Prosecutors later charged him with one count of possession with intent to distribute marijuana. At Hood's one-day trial this week, the evidence presented by the prosecution included a digital scale and about a dozen bags that had contained marijuana before being seized from the house, testimony showed. Deputies also found $1,600 in cash and a student-loan application with Hood's name on it inside of a night stand.
Jurors deliberated for less than two hours and convicted Hood of a reduced charge, which usually carries no more than 15 years' imprisonment. Assistant District Attorney Nick Noriea Jr. then used Hood's past convictions on Thursday to argue that he was a career criminal worthy of a severe punishment.
Drug offenders in the state are subject to life imprisonment after being convicted three or more times of a crime that carries a sentence exceeding 10 years.
Thursday, May 05, 2011
Plea deals and probation term bring closure to high-profile bullying-suidice prosecutions in Massachusetts
As detailed in this local article, which is headlined "Two more teens sentenced in Phoebe Prince case," plea deals have been worked out and sentences imposed for a group of teenagers who were criminally prosecuted after a classmate they bullied committed suicide. Here are some of the details details:
Two more teenagers charged in connection with Phoebe Prince's suicide were sentenced today to probation and community service, after another emotional statement from Prince's mother, who said Prince was harassed until school became intolerable....
Sharon Velazquez, 17, admitted to sufficient facts on a criminal harassment charge and Flannery Mullins, 18, admitted to sufficient facts on a civil rights violation and disturbing an assembly. Velazquez will be on probation until her 18th birthday; Mullins will be on probation until she turns 19.
Prince, a 15-year-old Irish immigrant, killed herself in January 2010 at her family’s South Hadley home after being bullied by other students at the town’s high school. The case made international headlines and helped spark a national debate on the problem of school bullying....
Alfred Chamberland, Mullins's defense attorney, read a statement outside the courthouse saying that the district attorney's office had brought excessive charges against his client and demonized her and the other defendants.
He said the plea was "an acknowledgment by the Northwestern district attorney’s office that these matters were overcharged and that the former administration brought felony indictments in cases which did not call for such,” he said. "By doing so, the Commonwealth unnecessarily exposed my client and the other juveniles in this case to unfair and harsh national and international media scrutiny.”
Two other teenagers were sentenced Wednesday to probation after an emotional hearing in which O'Brien's mother condemned one of them, saying his relationship with her daughter was "predatory" and his betrayal of her daughter had broken her spirit, the Globe reports this morning.
Do folks think justice has now been served in this high-profile case? According to this article in the Boston Herald, there is "Outrage in Ireland over plea deals."
UPDATE: This interesting Christian Science Monitor article about the Phoebe Prince case and these sentencings indicates that observers are looking to restorative justice principles to get ultimate satisfaction from the defendants here. But, in light of recent comments by the lawyers and others, I am not sure everyone is committed to restoration here, whatever that means.
Wednesday, May 04, 2011
Could violent video games actually reduce violent crimes?
The question in the title of this post is prompted by this notable research available via SSRN. The article is titled "Understanding the Effects of Violent Video Games on Violent Crime," and here is the abstract:
Psychological studies invariably find a positive relationship between violent video game play and aggression. However, these studies cannot account for either aggressive effects of alternative activities video game playing substitutes for or the possible selection of relatively violent people into playing violent video games. That is, they lack external validity.
We investigate the relationship between the prevalence of violent video games and violent crimes. Our results are consistent with two opposing effects. First, they support the behavioral effects as in the psychological studies. Second, they suggest a larger voluntary incapacitation effect in which playing either violent or non-violent games decrease crimes. Overall, violent video games lead to decreases in violent crime.
Monday, May 02, 2011
"Internet Lets a Criminal Past Catch Up Quicker"
The title of this post is the headline of this recent New York Times piece, which includes these interesting passages with data on criminal histories and their potential employment impact:
The pool of Americans seeking jobs includes more people with criminal histories than ever before, a legacy in part of stiffer sentencing and increased enforcement for nonviolent crimes like drug offenses, criminal justice experts said. And each year, more than 700,000 people are released from state and federal prisons, a total that is expected to grow as states try to reduce the fiscal burden of their overcrowded penal institutions.
Almost 65 million Americans have some type of criminal record, either for an arrest or a conviction, according to a recent report by the National Employment Law Project, whose policy co-director, Maurice Emsellem, says that the figure is probably an underestimate....
In a 2010 survey by the Society for Human Resources Management, almost 90 percent of the companies surveyed, most of them large employers, said they conducted criminal background checks on some or all job candidates. Advocates for workers say that the indiscriminate use of background checks by companies has made finding employment extremely difficult for millions of Americans....
There is no federal law that prohibits discrimination against people with criminal records. But the Equal Employment Opportunity Commission has set guidelines on how employers can use such records. Because African-Americans, Hispanics and other minorities have higher rates of criminal convictions, a blanket policy that screens out anyone with a criminal history will discriminate against these groups, the commission says, and is unlawful under Title VII of the Civil Rights Act of 1964.... The studies have been cited in some lawsuits over criminal background checks. Taken collectively, they indicate that “it is no longer accurate to say that individuals with criminal records are always a higher risk than individuals without a criminal record,” said Shawn Bushway, an associate professor of criminal justice at the University at Albany, one of several researchers who have conducted redemption studies.
Sunday, May 01, 2011
Tackling the challenges of prisoner fathers who owe child support
This new AP piece, headlined "Conn. to help inmates pare child-support bills," discusses a new state programs dealing with an enduring prisoner problem:
[For] incarcerated parents across the country, the vast majority of them fathers, [being] in prison does not mean they won't have to pay child support or repay the state for welfare paid to their families in lieu of child support. Experts say the debt can make overwhelmed parents less likely to pay when they are released, and potentially damage relationships with their children.
Jessica Pearson, director of the Center for Policy Research in Denver, said her studies of state programs for the federal government show that more than half the inmates in both state and federal prisons are parents with children under 18, and half of those have active child-support cases. "In general, inmates seem to go in owing about $10,000 in child support and come out owing about $20,000," she said.
In several states, such as Tennessee, incarceration is considered "voluntary unemployment," and inmates cannot get child support obligation amended while in prison. Those laws are designed to ensure inmates are not being rewarded for committing a crime, and children don't get penalized, Pearson said....
States such as Massachusetts and Texas allow inmates to have child-support orders modified to a minimum payment, which can range from $20 to $80 a month depending on the state, according to the federal Office of Child Support Enforcement. Others, including Connecticut, allow a judge to eliminate the payments entirely while a parent has no income....
Several states, including Illinois and Maryland, have begun programs that will forgive any debt owed to the state, if a former inmate makes regular child-support payments for a specified amount of time, as little as six months in the case of Illinois, Pearson said. Federal grants have been made available from the federal Office of Child Support Enforcement to states for programs to help inmates become better fathers, access state services and get jobs. But Pearson said there is little incentive for states to pass legislation to forgive child-support debts.
"It's a land mine for politicians," she said. "To be soft on prisoners, and cut them deals, and forgive state debt for prisoners? T hey also don't want to make the poor chap who is doing the right thing and working two or three jobs to pay off his debt feel like a fool."
Friday, April 29, 2011
After Graham, can a related homicide permit a juve LWOP sentence for a nonhomicide conviction?
The question in the title of this post is prompted by this new local piece, headlined "Iowa Rep: Leaving Capitol without addressing juvenile offenders would be ‘unconscionable’," which details the latest struggles over how the state is to respond to the Supreme Court's ruling in Graham last year. Here are excerpts:
An Iowa Representative who was once at the heart of a push for stricter mandatory minimum sentences for some juvenile felony offenders is now pushing for compromise because he believes the existing situation is “unconscionable.”
“It isn’t what’s in my heart, but my head understands that we have to act,” Iowa Rep. Jeremy Taylor (R-Sioux City) told The Iowa Independent Thursday after reading our earlier report. “I can’t imagine standing with a victim or a victim’s family and telling them the alternative — that the person convicted of these Class A felonies would become immediately eligible for a parole hearing.”...
In the Iowa House, Taylor, a member of the Judiciary Committee, originally advocated for and won a new form of sentencing that would allow presiding judges to choose a mandatory minimum sentence between 30 and 45 years for such offenders. That plan was not received favorably by Iowa Sen. Wally Horn (D-Cedar Rapids), who leads the chamber’s Judiciary Committee, and the bill has essentially died for this session....
Taylor, perhaps the most fierce advocate for adopting stricter mandatory minimums than the 25 years originally recommended by the Iowa State Bar Association’s Criminal Law Section, began a push for a 25 year mandatory minimum. The youthful offender bill was amended by the House, and sent back to the Senate on April 13, where it has languished....
One of the problems facing the bill, as amended, is that Horn has adamantly opposed any mandatory minimum sentence for these juvenile offenders above the 15-year mark. Going beyond that, he believes, will not match the spirit of the U.S. Supreme Court ruling, which indicated that while states did not have to guarantee eventual release from prison, they needed to provide the offenders “some realistic opportunity for release” and an opportunity “to demonstrate growth and maturity.” The Supreme Court did not, however, provide any guidance or recommendations to state legislatures as to what the new sentences should be.
But beyond the disagreements over mandatory minimums, there is another bone of contention for some lawmakers including Taylor. “I and others believe that the Graham decision is being misapplied to juvenile cases where there is a murder attached,” Taylor said. “We want to specifically write our law so that when any new cases arrive that include a homicide, those cases will not come under the jurisdiction of Graham and those convicted of the crimes will never have an opportunity for parole.”
The disagreement relates directly to another Iowa criminal case, Jason Means, which was the first case in the nation to follow the federal Graham ruling and paved the way for previous juveniles convicted of such crimes to have their sentences revisited. Represented by Davenport attorney Angela Fritz Reyes, Means brought a motion of illegal sentencing before U.S. District Court in Scott County just days following the SCOTUS decision. U.S. District Court Judge Gary D. McKenrick ultimately ruled that the case was a new rule of substantive law that should be applied to previous cases and struck the portion of Means’ sentence that prohibited an opportunity for parole.
In 1994, when Means was 17, he was found guilty of first degree kidnapping, first degree robbery, second degree murder, criminal gang participation, conspiracy to commit robbery and unauthorized possession of an offensive weapon. The first degree kidnapping charge, a non-homicide offense, brought the penalty of life without parole. Means and his attorneys continue to seek a parole hearing.
Taylor believes that instead of the court looking at one specific conviction, the court should look at the totality of the case against a juvenile to determine if Graham should be applied. “If there is a homicide conviction involved, even if that conviction is not the one that led to the life without parole sentence, I believe it should prevent the application of Graham in those cases,” Taylor said, noting that he believes Means should stay behind bars for the remainder of his life.
Some recent related posts:
- Iowa Supreme Court deals with Graham's prohibition of juve LWOP for nonhomicide
- Effective coverage of Iowa's challenges operationalizing Graham ruling
- Iowa debating how to respond legislatively to SCOTUS Graham ruling
- Iowa legislature unable to respond effectively to SCOTUS ruling in Graham
- "'Death is Different’ No Longer: Graham v. Florida and the Future of Eighth Amendment Challenges to Noncapital Sentences"
Wednesday, April 27, 2011
Rhode Island legislator making notable claims after bust for DUI and pot possession
There is a telling and somewhat comical story developing in the Northeast after a leading Rhode Island state legislator got in trouble with the Connecticut cops. First the basics from this New York Daily News piece, which is headlined "Robert Watson, Rhode Island lawmaker who ripped pot smokers, busted for marijuana possession":
A Rhode Island lawmaker, who recently slammed his colleagues by invoking the image of pot-smoking immigrants, has been busted for alleged marijuana possession.
Republican House Minority Leader Robert Watson was arrested in East Haven, Conn., on Friday at a police checkpoint and was also charged with driving under the influence. "Trace evidence of marijuana was discovered and I was charged with operating under the influence, a charge I vehemently deny," Watson told the Providence Journal.
The 50-year-old smelled like alcohol and pot, he slurred his words, and his eyes "were extremely glassy and bloodshot," according to the police report. Authorities found a "small plastic sandwich bag containing a green leafy plantlike substance and a small wooden marijuana pipe." His blood-alcohol level was 0.05%, which is below the state's 0.08 limit.
And now for some interesting spin from this high-profile DUI and drud defendant, as reported in this Providence Journal piece headlined "Watson presents his version of arrest in Connecticut":
In a televised speech on the House floor about his arrest in Connecticut last Friday on driving-under-the-influence and marijuana-possession charges, House Minority Leader Robert A. Watson admitted to using marijuana to treat flare-ups of the pancreatitis that landed him in the hospital last November....
“I confess I did treat with marijuana on one of those rare occasions where I had that debilitating pain that literally had me flat on my back and wondering at what point do I decide an ambulance comes and takes me away. And I’ve got to confess it worked. It provided relief. And it alleviated the pain.”
“I didn’t smoke marijuana that day because I didn’t suffer a relapse,” he said of the Friday of his arrest. But he acknowledged that he is not among the 3,428 Rhode Islanders legally authorized to use marijuana under the state’s medical-marijuana program because he feared his personal medical information would somehow leak out of the state Department of Health.
A Health Department spokeswoman said: “We have been running the program for almost four years now and we have not released any patient’s names.”
“Now I know that the Department of Health prides itself on the confidentiality of that program. But let’s face it,” Watson said. “I am a public official, as we all are. We’re a small state, and I am not certain that my privacy wouldn’t be compromised were I to do this medical-marijuana treatment in the proper form and fashion.”
In his speech, Watson also raised questions about how he was treated by the police in East Haven, Conn., after one of the officers saw his General Assembly ID in his wallet, asked what it was and learned that he was a state legislator in Rhode Island. “I wish there had been cameras there. I wish it wasn’t just my word against the police,” he said. But “I deny that I failed any of the sobriety tests.”
The East Haven police did not respond to a request for comment, but a dispatcher confirmed that none of the community’s police cruisers are equipped with cameras....
A Pawtucket police lieutenant, DaSilva took some offense to Watson’s characterization of what the Connecticut police did that night. “I was not there. But there are two sides to every story,” he said in an interview after Watson’s speech....
Watson, 50, is due back in Connecticut on May 11 to face charges in a New Haven court of operating a vehicle under the influence of alcohol and possession of marijuana and drug paraphernalia....
Watson said the depiction of him, in the police report, as someone “incapable of standing and incapable of speaking” is “belied by the fact that I was processed and released in an hour… Police do not release intoxicated individuals. They detain them for [their] own personal safety and the safety of the public.”
Questions remained about how Watson obtained the marijuana and how he got home that night. Watson, 50, was not immediately available to answer follow-up questions.
I am hoping that this state legislator might soon become a vocal advocate not just for medical marijuana, but for complete marijuana legalization. After all, if he thinks he can and should be trusted to self-medicate for pain problems without going through the (onerous?) process for getting approval from using pot, why shouldn't he likewise trust his constituents to do the same?
Tuesday, April 26, 2011
Iowa legislature unable to respond effectively to SCOTUS ruling in Graham
This lengthy new piece appearing in the Iowa Independent spotlights the difficulties that the Hawkeye state is having in trying to craft an appropriate legislative response to the Supreme Court's ruling last year in Graham. The piece's headline and subhead tells the basic story: "Juvenile justice bill essentially dead for session; Without legislative guidance some new juvenile felony offenders will receive life, but be immediately eligible for parole." Here are some of the interesting details of a piece that is worth reading in full:
Iowa lawmakers have been unable to find compromise on new sentencing guidelines for juveniles convicted of certain non-homicide felonies. It’s a situation that will likely result in any new juveniles convicted of such crimes becoming immediately eligible for parole.
While Republicans would like to see hefty mandatory minimum sentencing requirements for such offenders and are willing to offer Iowa judges unprecedented discretionary latitude in such sentencings, Democrats want to make sure new sentencing guidelines match the spirit of the U.S. Supreme Court decision that mandated the changes.
In 2010, shortly after the Iowa Legislature ended its session, the U.S. Supreme Court ruled in Graham v. Florida that it was cruel and unusual punishment and therefore unconstitutional to sentence a juvenile, convicted on a non-homicide offense, to life in prison without the possibility of parole. Since Iowa law mandates such sentences for a few non-homicide offenses, the state has been grappling with compliance of the federal mandate.
Since the legislature had ended its session, the Iowa Supreme Court was the first state institution to offer a pathway to compliance. In a December 2010 opinion justices called upon the Graham decision when they reduced the sentence of Julio Bonilla, who was convicted of first degree kidnapping in 2005 when he was 16. Instead of serving life in prison without parole, Bonilla will now have the opportunity to appear before the parole board and the the possibility of release....
House File 607 was approved 81-to-17 by the Iowa House on March 28 and, upon reaching the Iowa Senate, was sent to the Judiciary Committee. As approved by the House, juveniles convicted of class A felonies would become eligible for parole after a prison term of between 30 and 45 years — the exact mandatory minimum sentence between those two figures would be imposed at the time of sentencing by the presiding judge.
The bill was originally crafted by a diverse task force comprised of prosecutors, defense attorneys, citizen advocates, members of law enforcement and representatives from the Iowa Attorney General’s Office, and called for a mandatory minimum term of incarceration of 25 years.... Yet when the bill arrived at the Iowa House, Republicans, encouraged by the Iowa County Attorneys Association, wanted much stiffer mandatory minimums. Democrats countered that the sentences being suggested by Republicans did not follow the spirit of Graham, which indicated that while states did not have to guarantee eventual release from prison, the states did need to provide these juvenile offenders “some realistic opportunity for release” and an opportunity “to demonstrate growth and maturity.”
Iowa Sen. Wally Horn (D-Cedar Rapids), who leads the Senate Judiciary Committee, told The Iowa Independent that he didn’t feel anything above a 15-year mandatory minimum sentence met with the spirit of what the U.S. Supreme Court wrote in its decision.... Horn feels so strongly about having a 15-year mandatory sentence that he has also essentially killed off a youthful offender bill that had the original 25-year mandatory minimum attached.
But without new legislative guidelines, Iowa judges imposing sentences on juveniles convicted on non-homicide Class A felonies will have no other legal choice at their disposal than to duplicate the same application as the Iowa Supreme Court. So, instead of the minimum 15-year sentences advocated by Horn, juveniles newly convicted of these crimes will have no mandatory minimum sentence at all. They will immediately become eligible for annual parole board reviews — the first one taking place as soon as one year following their incarceration.
Monday, April 25, 2011
Yet another ACCA case before SCOTUS this morning
The second case being argued before the Supreme Court this morning is McNeill v. United States, which is yet another case dealing with the proper application for the federal Armed Career Criminal Act. This SCOTUSblog page (where the briefs can be found) provides this description of the case:
Issue: Whether the plain meaning of the phrase “is prescribed by law,” which the Armed Career Criminal Act uses to define a predicate “serious drug offense,” requires a federal sentencing court to look to the maximum penalty prescribed by current state law for a drug offense at the time of the instant federal offense, regardless of whether the state has made that current sentencing law retroactive.
Plain English Issue: A federal law enhances sentences for certain defendants who have been previously convicted of three or more “serious drug offense[s],” which the statute defines as a drug offense with a maximum sentence of ten or more years. Does the statute require courts to consider the maximum sentence that was on the books when the crime was committed, or at the time of the present sentencing hearing?
UPDATE: The oral argument trancript in McNeill is now available at this link. A quick skim reveals lots of questions for the defense attorney and not much asked of the Assistant SG. It is often not a good sign when one gets a more active bench than one's adversary, but I rarely am inclined to make firm predictions in ACCA cases.
Thursday, April 21, 2011
"Extracting Compassion from Confusion: Sentencing Noncitizens After United States v. Booker"
The title of this post is the title of this new student note by Francesca Brody, which is now available via SSRN. Here is the abstract:
A noncitizen facing a federal judge for sentencing confronts a demonstrably different future than an otherwise identical citizen. Deportation, immigration detention, harsher prison conditions, and a longer actual sentence may all await the noncitizen federal inmate. The U.S. Courts of Appeals have disagreed as to whether a sentencing judge can take those consequences into consideration in crafting a sentence under the U.S. Sentencing Guidelines.
This Note argues that the circuit split results from circuit courts’ varying appellate scrutiny of sentencing decisions after United States v. Booker. To resolve the split, this Note encourages the Sentencing Commission to adopt an amendment to the Guidelines, thereby promoting uniformity among sentencing courts. In the alternative, this Note argues that it is proper for sentencing courts to consider alienage under 18 U.S.C. § 3553.
Sunday, April 17, 2011
On the state SCt dockets: LWOP for teens in California and guns for pot users in Oregon
I sure wish an enterprising criminal law academic and/or practitioners would follow closely via a blog or other on-line resource all the interesting and ground-breaking criminal justice issues that regularly come before state supreme courts. There are lots of really good blogs that cover various specific criminal justice issues and some that give special attention to important criminal law rulings coming from certain federal circuits or a particular state's courts. But to my knowledge, nobody keeps a focused blogsphere eye on many cutting-edge criminal law issues as they come before state supreme courts generally.
This moment of longing comes to mind not only because I know I no longer am able to keep up with all significant state Blakely and death penalty developments, but also because of two new pieces at How Appealing reporting on two notable new cases before state supreme courts in California and Oregon:
In the California Supreme Court as reported here, "State court to review long sentences for teens": "The [California] Supreme Court has agreed to review a 16-year-old's 110-year prison sentence for three attempted murders and decide whether juveniles convicted of crimes other than homicide are constitutionally entitled to a realistic chance at parole."
- In the Oregon Supreme Court as reported here, "In Oregon, medical pot and guns go hand in hand": Cynthia Townsley Willis, a retired school bus driver and grandmother of four, carries a spray bottle of marijuana-infused skin oil in her purse to treat her frequent, painful muscle spasms. Her Walther P22 pistol most often gets slipped into a shoulder holster under her jacket — driving the lonely roads that traverse the hills and dense woodlands of the Rogue Valley, who knows when she might need it? ... Willis, a diminutive 54-year-old California native, is now one of four plaintiffs in a case before the Oregon Supreme Court to determine whether medical marijuana users are entitled to the same gun-carrying privileges as everyone else."
April 17, 2011 in Gun policy and sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
"Older inmate population grows, puts strain on system"
The title of this post is the headline of this effective article from the Auburn Citizen (which gives the piece extra bite for true students of prison history). Here are excerpts:
One hundred ninety-two-year-old Auburn Correctional Facility is graying, and it’s not just the weather-worn stone walls. In New York as across the country, the inmate population is aging rapidly. The trend mirrors what’s happening among the country’s free population and creates many of the same fiscal dilemmas due to rising health care costs....
An older inmate population is the natural result of the strict sentencing that prevailed across the country in the 1980s and 1990s, researchers and advocates say. Offenders who previously would have received short sentences, or “skid bids,” as they’re known behind bars, instead found themselves locked up for decades or life.
One example in New York was the Rockefeller drug laws, which from 1973 until their repeal in 2009 mandated sentences of 15 years to life for possessing more than four ounces of “narcotic drugs” such as heroin and cocaine. As a result of such “get tough” sentencing guidelines, the state prison population grew dramatically from about 10,000 in 1973 to over 70,000 in 1992. Many of the inmates who received life sentences as young men in the 1970s are reaching their 60s this decade.
In New York, there are 847 inmates age 65 and older. They make up about 1.5 percent of the overall prison population, a proportion that has been rising steadily for several years, state Department of Corrections and Community Services spokesman Peter Cutler said. As recently as 1992, it had been just 0.3 percent.
Nationally, the 55-and-older segment of the prison population grew by 77 percent from 1999 to 2007, according to a study by the Pew Center on the States. The change is important because elderly inmates like Bernard Hatch are much more costly to house, mostly because of health care.
A 2010 report by the Vera Institute for Justice cited studies showing that elderly inmates make five times as many trips to health facilities and cost three times as much to incarcerate as their younger counterparts. Elderly inmates average three chronic conditions and 20 percent suffer from mental illness, according to the report....
The demographic change and the attendant cost spike has sent some states scrambling for ways to handle older inmates. As of 2008, six states had a dedicated prison for the elderly, eight had hospices and 13 had dedicated elderly units, according to the Vera report....
New York is also among the 15 states with some sort of geriatric release process. Such programs are usually based on inmates’ terminal illnesses, and advocates point out that recidivism rates plummet as offenders age. One study showed a one-year recidivism rate of 3.2 percent for released inmates age 55 and older compared to 45 percent for people between 18 and 29 years old. The compassionate release program in New York, however, results in very few releases: just eight in 2010 out of 140 applicants, Cutler said.
“All the studies show that recidivism is virtually non-existent once a person gets over 45,” said Soffiyah Elijah, director of the Correctional Association, a non-profit prison advocacy group. “I think it would be smart for us to take another look at how we’re spending taxpayers’ dollars to keep those individuals incarcerated.”...
People in their 70s and 80s are expensive to incarcerate, but prison officials see a tradeoff in having “elder statesmen” in the general population. “The younger inmates look up to them,” Cutler said. “They have a calming influence in some respects.”
Some related posts:
- "Aging Prisoners, Increasing Costs, and Geriatric Release"
- What should Florida and other states do with all their old sex offenders?
- "Aging inmates straining prison systems"
- The story of prisons becoming nursing homes in Virginia
- Missouri prison breaking in new geriatric wing