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
Friday, April 15, 2011
"Mother sentenced to 8-10 years for withholding cancer meds from son"
The title of this post is the headline of this articlereporting on the sentencing outcome in a fascinating and high-profile filicide case out of Massachusetts. Here are the details:
Kristen LaBrie, the mother who withheld cancer medications from her young autistic son who later died of his illness, was sentenced today to eight to 10 years in state prison for her conviction of attempted murder.
"At the end of the day, Ms. LaBrie’s actions were extended, secretive, and calculated. They were acts that really do chill one’s soul. This type of conduct really does demand punishment, albeit tempered with mercy," Essex Superior Court Judge Richard Welch said as he sentenced LaBrie. A prosecutor had recommended that LaBrie serve 16 to 17 years in prison, while her defense attorney recommended one year, with a lengthy probation period.
A tearful LaBrie apologized at the sentencing hearing this morning for withholding the medicine from her son Jeremy Fraser. “I am remorseful for my actions and I wish I could have done things differently,” LaBrie told the court. "If I could do it differently, I would because I certainly miss my son every day.”...
LaBrie, 38, who lived in Beverly and Salem, was convicted Tuesday on charges of attempted murder, assault and battery on a disabled person with injury, assault and battery on a child with substantial injury, and reckless endangerment of a child. Welch also sentenced her to five years of probation.
Authorities say her son was diagnosed with a treatable case of non-Hodgkin's lymphoma in October 2006, just after he turned 7, but Labrie failed to administer chemotherapy. By the time his doctors realized the boy was not taking his medication, his condition had progressed to leukemia. The boy was placed in the custody of his father, then died in a hospice in March 2009 at the age of 9.
"This was a tragic and difficult case," Essex District Attorney Jonathan W. Blodgett said in a statement. "For the Commonwealth this prosecution was always about justice for Jeremy." The defense had argued that LaBrie was overwhelmed by the pressures of caring for an ailing autistic son. "Her judgment waned, her objectivity waned, and she made an awful, awful mistake," said defense attorney Kevin James....
Welch said he felt sympathy for LaBrie, noting there was “little doubt that Ms. Labrie was placed in an extremely trying and exhausting situation” and he was certain that sometimes LaBrie felt that she was “confronting these monumental burdens all alone.” But he said, “What the defendant was charged with and what she was found guilty of and what she did commit was the crime of attempted murder. As difficult as it is for us to understand, she had the specific intent to kill her young son and intentionally withheld potentially lifesaving medication from him in order to accomplish her goal of murder.”
And he said that it was in society’s interest to protect the vulnerable. “In the last analysis, our society is judged on how we protect the most vulnerable members of that society, the children, the disabled. Jeremy Fraser being a child with moderately severe autism was one of society’s weakest and most beleaguered members. Society has a most significant interest in using the criminal justice system to discourage and prevent substantial injury to such disabled children,” he said.
Interestingly, the state sentencing judge here produced a brief sentencing memorandum, which can be accessed here.
Thursday, April 14, 2011
"U.S. sex offender claiming refugee status in Saskatchewan"
The title of this post is the headline of this interesting article from north of the border. Here is how the story starts:
For the past year, residents of Pike Lake, Sask., have come to know Denise Harvey as just another neighbour, an ordinary woman in a tightly knit community. But for residents of Vero Beach, Fla., Harvey is a fugitive, a sex offender and — to many — a victim of an unjust justice system.
Harvey, an American, fled to Canada with her husband last year after being sentenced to 30 years in prison for having sex with her son’s 16-year-old friend. But the system caught up with her last week, when she was arrested by RCMP in Pike Lake. She made an appearance before an Immigration and Refugee Board adjudicator Monday and was released on a $5,000 bond.
She is claiming refugee status to avoid being forced back to Florida, arguing the 30-year-sentence she received was too severe. Many others who have been following her case agree. “She didn’t get any justice down here,” said Vero Beach flight trainer George Sigler, one of Harvey’s supporters.
In a town of 18.000 residents, Sigler gathered 2,000 signatures for a petition demanding the Florida governor give Harvey a pardon. Sigler says many people believe Harvey doesn’t deserve a jail sentence that should be reserved for killers. “She’s a nice, soft-spoken woman who I believe made a mistake but that doesn’t mean she should go to jail for 30 years,” said Sigler. “No one in their right mind believes a 16-year-old wasn’t a willing participant.”
Chris Veeman, a Saskatoon immigration lawyer now representing Harvey, said a 30-year jail sentence was too high and provides some merit for her claim that returning to the United States would be cruel and unusual.
She never testified at her trial in Florida and denied any wrongdoing. The age of consent in Florida is 18. In Canada, the age of consent is 16 years old although it is 18 if the two people are in a situation defined as a power dynamic such as teacher and student.
Sunday, April 10, 2011
"Right-winger + hard time = compassion?"
The title of this post is the headline of this notable piece by Justin Elliot now up at Salon.com, which also has the cool graphic reprinted here and carries this subheading: "Some of the most eloquent advocates for prison reform are conservatives who find themselves behind bars." Here is how the piece gets started:
Last week, disgraced former congressman Duke Cunningham wrote a letter to several media outlets from the federal penitentiary where he has resided since 2006. In it, Cunningham, a conservative Republican who pleaded guilty in a public corruption case in 2005, waxed eloquent about an unlikely topic: prison reform.
"The United States has more more men & women in prison than any other nation including Russia and China," he wrote. "The largest growing number of prisoners, women -- 1-34 Americans are either on probation or in prison. The 95% conviction rate reached by threats of long sentences, intimidation, lies and prosecutorial abuse has got to be reckoned with now, not later." Cunningham also promised he would dedicate his life to prison reform.
We've seen transformations like this before. Cunningham is the latest in a string of conservative political figures to see the light on prison reform following a stint behind bars.
Right-wing media mogul Conrad Black, for example, did two years' hard time after being convicted in a 2007 fraud case. Following his release in 2010, Black has written passionately about prison reform.
While incarcerated, he learned "of the realities of street level American race relations; of the pathology of incorrigible criminals; and of the wasted opportunities for the reintegration of many of these people into society. I saw at close range the failure of the U.S. War on Drugs, with absurd sentences, (including 20 years for marijuana offences, although 42% of Americans have used marijuana and it is the greatest cash crop in California.)."
And, of course, Nixon aide Charles Colson devoted his life to criminal justice reform -- and spreading Christianity among prisoners -- after serving seven months in 1974 for obstruction of justice in a Watergate-related case. Colson's Justice Fellowship organization lobbies for better conditions in prisons and reform of sentencing and the criminal code. The head of Justice Fellowship is Pat Nolan, a former conservative law-and-order Republican in the California assembly who devoted himself to prison reform after serving 29 months for corruption in the 1990s.
The piece concludes with a Q&A intereview in which I speculate on some of the reasons why some conservatives start talking about sentencing and prison reform after they have seen the operation of the criminal justice system first hand.
Wednesday, April 06, 2011
Gitmo and military commissions as sentencing law and policy
I do not do too much Gitmo/"war on terror" blogging because the key legal issues involved in these high-profile matters are rarely about sentencing and often well covered by many others both in the MSM and in the blogosphere. Nevertheless, especially in a week in with the Obama Administration has decided to embrace military commissions, spotlighting some of the MSM coverage of the latest developments seems worthwhile. Specifically, these two headlines really caught my attention over at How Appealing:
- From the AP here, "Gitmo: The prison that keeps causing trouble"
- From the Los Angeles Times here, "Might a military jury deny 9/11 suspect's death wish? Under military commission rules, Khalid Shaikh Mohammed cannot plead guilty to a crime that carries the death penalty, even though he wants it. And a military jury might be less likely than a civilian one to grant his wish."
Though the AP story is mostly focused on the politics of Gitmo, I am not eager to engender or engage in the political debate over where and how terror suspects should be tried. But, inspired in part by the LATimes piece, I am eager to hear just how (and with what sentencing purposes most in mind) folks think terror offenders should be punished.
Tuesday, April 05, 2011
"Felony to misdemeanor: How Jack Camp did it"
The title of this post is the headline of this lengthy article from the Daily Report, which carries the subheading "DOJ may have been 'outlawyered' as plea deal fell apart for gun-toting former jurist caught in cocaine deal." Here is how the piece starts:
Prosecutors who missed charging opportunities, a loosely crafted plea agreement and defense lawyers who excavated a little-known Michigan case that turned on the difference between "a" and "the" allowed former federal Judge Jack T. Camp Jr. to walk away with a misdemeanor last month even though he pleaded to a felony after the FBI snared him in a cocaine deal.
Camp's sentence, which the government said it will not appeal, amounts to a new legal precedent in Georgia affecting whether a felon's prior convictions may be used to enhance criminal charges against anyone helping that felon commit a crime. The Michigan opinion and prosecutors who may have been wary of relitigating a decade of Camp's cases would prove critical in the surprising outcome.
Camp could have served four years in prison under his original plea deal, which included a felony and was made with prosecutors from the Department of Justice in Washington after local prosecutors and judges recused. Instead, U.S. District Senior Judge Thomas F. Hogan from Washington, sitting as a visiting judge in Atlanta, reduced the 67-year-old Camp's felony plea to a misdemeanor, then gave him a 30-day sentence plus a good scolding for criminal behavior that combined cocaine, narcotic painkillers, a prostitute drug felon, a stolen government laptop, and loaded guns he brought to a drug deal. Camp also will serve 10 weeks of community service, pay a $1,000 fine, and reimburse more than $13,000 to the government for the cost of his prosecution. As part of his plea, Camp also resigned his judicial post and surrendered his law license. He will begin serving his sentence on April 15 at a minimum-security federal prison camp in El Reno, Okla.
For Camp, the biggest relief likely was avoiding more prison time and the stigma of a felony conviction. As a misdemeanor offender, he will not be stripped of his civil rights —including the right to vote and carry a firearm (once his probation is complete) — and could even apply for reinstatement to the State Bar.
Criminal defense lawyers who have followed the case were stunned. Arthur W. Leach, a former federal prosecutor in Alpharetta who now does defense work, called the conversion of Camp's pleaded felony to a misdemeanor "absolutely amazing." The downgraded plea, he said, creates "the perception that because [Camp] was a district court judge, he was treated differently."
"The consensus among criminal defense attorneys in this district is please bring in a prosecutor from Washington whenever we have a case," said Atlanta criminal defense attorney Steven H. Sadow. The government was "outlawyered," defense attorney Wilmer "Buddy" Parker, another former federal prosecutor in Atlanta, concluded.
Related prior posts (which have generated lots of notable comments):
- "Federal judge charged with buying drugs from stripper"
- Federal judge cutting deal to avoid prison time for drugs, guns and stripper activities
- Sentencing memo for former federal judge urges probation and stresses mental health issues
- You be the judge: what federal sentence would you impose on former judge Jack Camp?
- "Ex-judge Camp sentenced to 30 days in prison"
- Fascinating backstory for why former judge Jack Camp does not even have a felony conviction
Monday, April 04, 2011
Seniors looking at functional life prison terms for selling prescriptions
Because I always find the intersection of age and aging issue and sentencing considerations to be interesting and dynamic, this lengthy local article from Oklahoma caught my eye. The piece is headlined "Seniors might die in prison: Two elderly Oklahomans are facing the possibility of spending the remainder of their lives in prison. They’re accused crimes? Selling their prescriptions." Here is how the piece gets started:
Old age doesn’t preclude a person from committing a crime, and in the cases of two elderly Oklahomans, it also doesn’t rule them out from possibly spending the remainder of their lives in prison on drug complaints.
Opal Verndean Wesley, 73, of Bristow, was charged Friday in Creek County on complaints of possessing controlled prescription drugs with intent to distribute and for having a firearm after prior felony convictions. If convicted, she faces six years to life in prison. She was booked into the Creek County jail Friday.
Nearly 200 miles south in Love County, Louis Harold Norton, 70, of Marietta, accepted a plea deal on March 24 for 30 years in prison with 15 suspended. The plea stemmed from two 2009 felony charges of distributing painkillers. He is currently in the Department of Corrections custody.
They don’t know each other, but officials say it’s eye-opening and troubling that senior citizens are selling their legally obtained prescriptions. Though these are rare cases, these two could spend their twilight years behind bars.
Oklahoma Department of Corrections records show about 9 percent of the nearly 26,000 incarcerated are older than 51 years old. Nearly 30 percent of the prison population is serving time for drug crimes.
“We can’t just say this guy is old so we’re not going to prosecute,” said Love County Assistant District Attorney Paule’ Wise. The prosecutor in Wesley’s case, Creek County Assistant District Attorney Mike Loeffler, echoed the same sentiment: “It’s hard to be blind to age, but selling these drugs is for no other purpose than economic gain.”
Oklahoma Bureau of Narcotics and Dangerous Drugs Control spokesman Mark Woodward said the argument is sometimes made that selling prescriptions becomes the only way for the elderly to supplement Social Security benefits and make money. “More people die from these drugs than street drugs,” he said. “Age has nothing to do with greed and that’s what this is.”
I believe very strongly that being old or even infirm should not preclude prosecution for crimes, and I do not know anyone who seriously contends that old age should be a complete defense to criminal conduct. But this reality just heightens the pressure and challenge of sentencing older offenders who, when convicted of non-violent crimes, seem quite unlikely to pose a significant threat to the public and who also may suffer more (and cost more) when incarcerated during their twilight years.
Sunday, April 03, 2011
Detroit's Granny Valjean gets probation and home confinement for Social Security fraud
Last week I asked in this post what would seem a fitting federal sentence for an elderly woman who fraudulently received nearly $120,000 in Social Security benefits over a 20-years period and used the funds to raise and support her grandkids. Here is the news report on her actual sentencing:
In the end, the judge showed her mercy. Mary Alice Austin, a Detroit grandmother who admitted she stole from the government because she needed money to help raise her five grandchildren, avoided a prison sentence Friday when a federal judge gave her probation instead. But Austin will have to pay back $119,000 in restitution and will serve four months in home confinement on a tether.
U.S. District Judge Victoria Roberts issued the sentence after Austin, 67, pleaded for her freedom. She faced 10-16 months in prison for unlawfully receiving her son's disability checks while he was in prison. "Please understand me. Please," a frail-looking Austin said at her sentencing.
Austin told the judge she still has a mentally ill son in an institution to look after. She also talked about the struggles she faced in raising five grandchildren and said desperate times forced her to make a bad choice. "I am remorseful," Austin said. "I got scared. I got very scared."
According to court records, Austin paid someone to pose as her mentally ill son so she could continue receiving his disability benefits while he was in prison. From 1990 to 2009, Austin received nearly $120,000 in benefits -- about $6,000 a year, records show....
At Austin's sentencing, Assistant U.S. Attorney Blondell Morey conceded Austin doesn't present a threat to the public but pushed for prison time. "I think basically Ms. Austin is a good woman, but she did some bad things. ... And she needs to be punished."
Notable coverage of the fates of teen lifers in Colorado and Florida
Today's newspapers include these two stories from two different parts of the country concerning the fates of defendants sentences to life for crimes committed a teenagers:
From the Orlando Sentinel here, "'Lifers' sentenced as teens: Do they deserve a 2nd chance?"
From the Pueblo Chieftain here, "Juvenile 'lifers' afraid to hope"
Friday, April 01, 2011
Another extraordinary sentencing opinion from Judge Jack Weinstein in multi-defendant crack case
A number of helpful readers have made sure that I did not miss yet another extraordinary sentencing opinion from the desk of US District Judge Jack Weinstein. The opinion in United States v. Bannister, No. 10-CR-0053 (E.D.N.Y. Mar. 24, 2011) (available for download below), runs over 125 pages and here are excerpts from the conclusion (with cites omitted):
Several of the sentences in this case, imposed only because of statutory minima, are disproportionate to the crimes committed and the backgrounds of the defendants. Their excess causes particular concern when applied to youthful defendants. That concern is multiplied by their imposition upon young defendants subject to abuse, poverty, drug and alcohol addiction, unemployment, illiteracy, and learning disability, largely attributable to their backgrounds.
Had the defendants been raised by cohesive, adequate families, most of the difficulties they encountered would probably never have come to pass. Well-resourced, attentive parents would have had the knowledge, ability, and insight to protect their children from many of the difficulties that befell these defendants in their youth, to obtain assistance to deal with their psychological and physical problems, and to obtain crucial opportunities for education, work, and personal growth. Even those with learning disabilities would likely have been provided available resources to overcome their impairments at public expense. That the defendants were born into circumstances without such support is at the center of this tragedy.
As part of defendants‘ sentences, it has been ordered that every reasonable effort be made to provide counseling, drug and alcohol treatment, gambling rehabilitation, anger management therapy, education, and job training while defendants are incarcerated and during supervised release.
Considering the limited resources devoted to such rehabilitative measures, however, it is by no means clear that these aids will be effectively provided. When the defendants are released from prison, they will probably have to return to all of the problems that led them to engage in crime. Whatever tenuous connection they retain to the lawful, supportive world will likely be diminished after years of forced separation in prison. Incarceration will make entry into the job market more difficult. Remaining will be the root problems that have largely brought them to this pass: poverty; dysfunctional families; mental and physical problems; legal and de facto housing segregation; segregated and inferior schools; and an economy that appears to have little need or concern for low- and semi-skilled workers. Such individuals constitute a permanent underclass with almost no opportunity to achieve economic stability, let alone the American dream of upward mobility.
These problems are concentrated among low-income African Americans, but they affect the country as a whole. Our rates of imprisonment, income inequality, and unemployment are either the highest or among the highest of the world's advanced economies, while our rates of food security and life expectancy are among the lowest.
Significant reforms are needed in our sentencing regime. The Fairness in Sentencing Act of 2010 reduced the dubious 100:1 powder/crack ratio to a 17.8:1 ratio. It did nothing to remove the sentencing regime's dependence on arbitrary drug quantities — not just with regard to crack cocaine but other drugs as well — that bear little relationship to the harm a defendant has done to society or to the danger of his inflicting further harm. Harsh, disproportionate mandatory sentences impose grave costs not only on the punished but on the moral credibility upon which our system of criminal justice depends.
Judges approach the grave responsibility of sentencing criminals with all the thoughtfulness and limited insight that their knowledge and wisdom can muster.... Mandatory minimum sentencing provisions, leaving no alternative but lengthy incarceration, prevent the exercise of this fundamental judicial duty. Such laws are ― overly blunt instruments, bringing undue focus upon factors (such as drug quantities) to the exclusion of other important considerations, including role in the offense, use of guns and violence, criminal history, risk of recidivism, and many personal characteristics of an individual defendant. It is difficult to conceive of a system of mandatory minimum sentences that could effectively anticipate and provide for such factors.
For nonviolent, low-level drug crimes, the goals of incarceration — general and specific deterrence, incapacitation, retribution, and rehabilitation — could in most cases be achieved with limited incarceration, through a system of intense supervised release utilizing home visits; meetings with parole officers; a combination of counseling, drug and alcohol treatment, education, job training, and job placement; and electronic monitoring to prevent flight, promote positive choices, and deter and detect incipient crime. Such a regime would likely be more effective in reducing crime and much less costly than imprisonment. Given discouraging economic, social, and psychological conditions, it seems doubtful that the long sentences of incarceration imposed will appreciably reduce crime.
Pragmatism and a sense of fairness suggest reconsideration of our overreliance on incarceration. Though defendants are hemmed in by circumstances, the law must believe that free will offers an escape. Otherwise, its vaunted belief in redemption and deterrence — both specific and general — is a euphemism for cruelty. These defendants are not merely criminals, but human beings and fellow American citizens, deserving of an opportunity for rehabilitation. Even now, they are capable of useful lives, lived lawfully.
Wednesday, March 30, 2011
Tenth Circuit rejects interesting attack on BOP policy concerning RDAP early release
The Tenth Circuit has an interesting opinion today in Licon v. Ledesma, No. 10-6166 (10th Cir. March 30, 2011) (available here), on a federal prison topic that (too?) rarely gets litigated. Here is how the opinion starts:
Ortino Licon challenges a Bureau of Prisons (BOP) policy and regulation that denies him eligibility for an early release program because he was convicted of felon in possession charges. The BOP has authority to reduce a nonviolent offender’s term of imprisonment upon successful completion of a drug rehabilitation program. The challenged BOP policy categorically denies prisoners convicted of felon in possession charges eligibility for the early release benefit. Licon contends the policy arbitrarily categorizes every inmate convicted of firearm possession charges as violent offenders. We conclude the BOP’s policy is not arbitrary, and therefore the BOP acted within its discretion by excluding inmates convicted of felon in possession charges.