Sunday, January 02, 2011

"Sentences stick for young killers: Law shift won't help murder cases"

The title of this post is the headline of this interesting article from Florida Today.  Here are a few excerpts:

The U.S. Supreme Court ruled in May that it was unconstitutional to sentence juveniles to life in prison for non-murderous crimes.  While three Florida juveniles have been resentenced, the ruling offers no relief to [those convicted of murder]....

According to a report issued in 2000 by the U.S. Department of Justice, 45 states have passed or amended legislation since 1992 making it easier to prosecute juveniles as adults.  The report states that the number of inmates under 18 confined in adult prisons more than doubled between 1990 and 2000....

Florida State University law professor Paolo Annino has spearheaded efforts to bring the possibility of parole back for juveniles sentenced to life or very long sentences.  He is the author of a bill, the Second Chance for Children in Prison Act, that would bring back the possibility of parole for children who were sentenced to more than 10 years in prison.

The children must have served at least eight years, must be considered rehabilitated, and must not have any disciplinary reports for the previous two years, among other requirements....

Annino's bill faces competition this year with a State Attorney's Association bill that would grant the possibility of parole for juveniles sentenced to life for crimes other than murder and after 25 years in prison.

January 2, 2011 in Assessing Graham and its aftermath, Offender Characteristics | Permalink | Comments (0) | TrackBack

Tuesday, December 21, 2010

Split Missouri Supreme Court upholds LWOP adult sentence for 15-year-old cop killer

The Missouri Supreme Court today in a split 4-3 ruling upheld against various challenges an LWOP sentence for a 15-year-old murderer in Missouri v. Andrews, No. SC91006 (Mo. Dec. 21, 2010) (available here). Here is how the majority opinion gets started:

Antonio Andrews appeals the jury's verdict finding him guilty of first degree murder for shooting and killing a police officer and the sentence imposed on him for that crime of life without parole.  This case came directly to this Court because Andrews challenges the constitutional validity of two Missouri statutes.  He challenges Missouri's juvenile-certification statute, § 211.071, RSMo 2000, as violating his right to a jury trial in a criminal prosecution under the Sixth Amendment as applied in Apprendi v. New Jersey, 530 U.S. 466 (2000). He also challenges the validity of the mandatory sentencing of a minor to life without parole for committing first degree murder as prescribed by § 565.020, RSMo 2000, as violating the Eighth Amendment prohibition against cruel and unusual punishment.  In addition, Andrews appeals the jury's verdict claiming that there was insufficient evidence from which a reasonable jury could conclude Andrews committed first degree murder.  Finally, Andrews claims the trial court erred by overruling his motion in limine, which sought to prevent uniformed police officers from being present during the jury trial.  Affirmed.

A lengthy dissenting opinion by Justice Wolff asserts that the defendant in this case had his Eighth Amendment rights violated.  He states that "[s]entencing juvenile offenders to life without the possibility of parole is cruel and unusual punishment because society’s standards have evolved to prohibit it."  Another lengthy dissenting opinion by Justice Stith finds asserts that the defendant in this case had his Sixth Amendment rights violated.  She states:

When a court decides that a juvenile is to be tried as an adult, Apprendi requires that the Sixth Amendment command of a jury trial be obeyed.  The jury’s verdict alone in this prosecution is insufficient to punish a 15-year-old defendant such as Antonio with a lifetime in prison.  To prosecute Antonio as an adult, and to impose a sentence of life without parole, the additional fact-finding mandated by Missouri’s juvenile certification process also is necessary.  To allow this additional fact-finding to be made by a judge and not by a jury violates the defendant’s fundamental right to a jury under the Sixth Amendment of the United States Constitution.

It will be very interesting to see if four Justices of the US Supreme Court might have an interest in taking up either of the (crisp?) constitutional issues presented by this case.

December 21, 2010 in Assessing Graham and its aftermath, Blakely in the States, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, December 17, 2010

Iowa Supreme Court deals with Graham's prohibition of juve LWOP for nonhomicide

A helpful reader altered me to a decision today by the Iowa Supreme Court dealing with a juvenile LWOP sentence that is now clearly unconstitutional in the wake of the Supreme Court's Eighth Amendment ruling in Graham v. Florida.  The ruling in Bonilla v. Iowa can be downloaded below, and here is how it starts:

Julio Bonilla was convicted of kidnapping in the first degree in adult court for an offense committed at the age of sixteen.  He was sentenced to mandatory life in prison without the possibility of parole pursuant to the Iowa Code. Under the recent United States Supreme Court decision Graham v. Florida, ___ U.S. ___, ____, 130 S. Ct. 2011, 2033–34, 176 L. Ed. 2d 825, 848–50 (2010), this sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment of the Federal Constitution. The clauses of Iowa Code sections 902.1 and 906.5 (2003) that make Bonilla ineligible for parole are unconstitutional as applied to Bonilla.  These clauses are also severable.  Therefore, Bonilla‟s sentence must be adjusted to life in prison with the possibility of parole.

 Download Bonilla_Iowa_S_Ct_12-17-10

December 17, 2010 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

A mere six-month jail sentence for 19th drunk driving conviction?!?!?

As detailed in this local article, which is headlined "19th DUI gets Santa Rosa man 6-month sentence," an inclination to treat drunk drivers leniently can continue even well after a defendant has more than a dozen convictions for this dangerous behavior.  Here are the notable details (which actually highlight for me why technology rather than longer prison terms should be the focal point of reducing the dangers and harms of drunk driving):

A Santa Rosa man with 19 drunken driving convictions was spared a prison term Thursday for his latest offense, prompting an outcry from prosecutors.

William Rylan Beall, 65, whose record of drunken driving stretches back 44 years, was sentenced to six months in jail by visiting Alameda County Judge Julie Conger. But he could end up serving it in an alcohol treatment facility if bed space becomes available.

That he will be free until Jan. 21 and was not given a prison sentence provoked an angry reaction from Sonoma County Chief Deputy Prosecutor Bill Brockley. “It’s putting our community at risk. He’s proven he’s a danger and can’t conform his behavior to societal norms,” Brockley said. “He can’t stop drinking and when he drinks, he drives. He puts your family, my family, and all families at risk.”

Prosecutors had sought a two-year prison term as recommended by the county probation department.... In recommending the mid-term prison sentence, the probation department took into account Beall’s clean record for the past eight years.

Until his latest drunken driving offense in July, Beall, a real estate agent who lives in Oakmont, had stayed out of trouble since 2002. But his finances and health began to deteriorate and he relapsed, said his attorney, Steve Weiss. “He has been a strong participant in AA the last eight years,” said Weiss. “Unfortunately, he reverted to very old habits.”

“The judge focused on a number of things — the eight years he had been sober, his health and the best way to protect the community, which she felt was to keep him on probation for five years — keep him under close supervision and give him a six-month residential treatment program to sharpen his sobriety skills.”...

Beall’s record of alcohol-related driving convictions began in 1966, according to a pre-sentencing report. He was convicted of drunken driving seven times in the 1970s, five times in the 1980s, four times in the 1990s and again in 2002, prior to his most recent conviction.

Three of the convictions involved traffic collisions. In one case, he was seen running a red light at approximately 50 to 60 miles per hour. “It is extraordinarily fortunate the defendant has never seriously injured anyone or taken a life, given his disregard for the law and the well-being of others,” Deputy Probation Officer Sierra Grohl wrote in her report.

Beall was given probation six times, required to attend frequent AA meetings and comply with Antabuse drug therapy, but he continued to drink and drive. He was sent to prison for two years in 1998.

In addition to his 19 prior drunken driving convictions, there were six additional arrests that did not lead to convictions, according to the pre-sentencing report. His blood alcohol in 2002 registered .22, almost three times the level at which a person is presumed too drunk to drive.... The probation officer noted “it is plausible he truly was sober the past eight years or he would have likely appeared before the court much sooner.”

Weiss noted that early on the district attorney’s office had offered his client a 16-month jail term and with good behavior, he could have been out in half that time.  But Brockley said Beall rejected the offer and another judge refused to consider a non-prison sentence. “A person with this type of alcohol history and arrest record should be going back to state prison,” Brockley said.

Though I generally agree with the prosecutor's view here that such an extended criminal history justifies another trip to state prison, I also think this case spotlights the need to use ignition-locks and other forms of technology to try to prevent chronic offenders from ever being able to start a car with any alcohol in their system.

December 17, 2010 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Technocorrections | Permalink | Comments (4) | TrackBack

Thursday, December 16, 2010

Notable Montana Supreme Court ruling on sentencing rights and procedure

As reporting in this effective local article, earlier this week the Montana Supreme Court "affirmed a one-year jail sentence for former Great Falls Mayor Gayle Morris for his role in the prostitution investigators said occurred at a bar and strip club west of Great Falls."  Though the nature of the crime first caught my attention, the issues addressed by the Montana Supreme Court in this opinion provides an effective primer on various sentencing rights (and their limits). 

Here is a brief accounting of the case and the ruling from the press article:

In June, Morris, who is a proprietor of the club, was sentenced to a year in jail after pleading no contest to accountability to prostitution and obstructing a peace officer.  He is serving his sentence at the Cascade County jail.  Morris was expecting a suspended sentence as part of a plea agreement he reached with prosecutors in which he agreed to plead no contest to misdemeanors in exchange for dropping a felony count of promoting prostitution.

However, District Judge Thomas McKittrick sentenced Morris to the maximum sentence of a year in jail.  Morris appealed to the Supreme Court, claiming the sentence amounted to cruel and unusual punishment, and violated state sentencing policy.

As part of his appeal, Morris argued McKittrick illegally considered his status as a former mayor and county commissioner in the sentence.  Morris also contended that he was punished for an alleged lack of remorse.

The state Supreme Court disagreed, saying the lower court provided eight valid reasons for the sentence. "Notably, the district court was influenced by the fact that Morris' previous public service indicated he should have known better," the court's ruling states. "Furthermore, when Morris signed the plea agreement, he was more than well aware of the potential maximum penalty.  We conclude that the district court's sentences were not arbitrary and did not exceed the bounds of reason."

December 16, 2010 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Tuesday, December 14, 2010

Nebraska lawmaker seeking to end LWOP for juveniles in state

As detailed in this local article, which is headlined "Seeking an end to teens doing life," at least one Nebraska state legislator is eager to get rid of LWOP for all juvenile offenders. Here are the details:

For State Sen. Brenda Council, it's common sense: Criminals under the age of 18 should not be sentenced to life in prison without a chance at parole. Her reasoning: While their crimes as teenagers were horrendous, people mature, changing dramatically from their teen years to mid-30s, 40s or 50s.

Studies have shown that a teen's brain is not fully developed. Youths face pressures from gangs and peers. Imprisoning a person for decades is costly.

The sentence amounts to “death by incarceration,” she said. Still, Council acknowledges, her view is unpopular in Nebraska, one of the states that allow young people to be sentenced to life without a chance for parole.

Even so, Council plans to submit a bill during the next legislative session that would change sentencing guidelines. Those convicted as teens — or younger — should at least get a parole hearing some years down the road, she said. Her proposed bill would not guarantee parole.

About 25 people joined the Omaha legislator Monday evening at a panel discusion on how to help the underdog proposal make it into state law. Those in attendance included another state senator, Bob Krist; Family members of some of the 27 people in Nebraska sentenced as juveniles to life; and even a mother who has become an advocate for the man who helped kill her son when both were teens....

The U.S. Supreme Court ruled last spring that a life sentence without parole for juveniles who have committed crimes other than murder violates the U.S. Constitution's prohibition on cruel and unusual punishment.

Readers who know American political science realize that Nebraska has a unicameral legislature with 49 members, so State Senator Brenda Council will only need to convince 29 of her colleagues to get her bill passed.  This is important not only in Nebraska, but if there is a continuing movements in many states to ban all LWOP sentences for all juvenile offenders, the Supreme Court's Eighth Amendment doctrine could evolve to make such sentences ultimately unconstitutional. 

December 14, 2010 in Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, December 13, 2010

"Releasing elderly non-violent prisoners would reduce Ohio deficit"

The title of this post is the headline of this potent and effective letter to the editor in a local Ohio paper. Here are excerpts:

How do you eat an elephant? . . . One bite at a time

Ohio is $8 billion in the red.  A budget crisis the size of an elephant.  A recent report by the Kasich camp suggesting ways to balance the budget, asked Ohio agencies to look at operating at a 90 percent of their current budgets.  As expected, all said such a plan would reduce services, raise education costs and create havoc.  The scenario communicated by the Department of Corrections is particularly startling.  If the Ohio Department of Rehabilitation and Correction takes a 10 percent hit to their current $3.1 Billion budget, staff would be reduced by 20 percent and several prisons would have to close. Overcrowding would rise from 135% overcapacity to a startling 174 percent creating a dangerous and inhumane situation....

In September, Director Ernie Moore announced that the big WIG or “Wildly Important Goal” of the ODRC is to “reduce the prison population to 48,000 by July 1, 2013.”  This trickle of proposed reductions over 2½ years is uninspired. We need a fiscally and morally arguable plan to reduce the absurd amount of resources wasted to warehouse humans in the name of public safety now.  Don’t be fooled by the fear mongering by those who benefit by the ever-growing prison industrial complex.  The ODRC employs nearly 14,000. Make no mistake there are vested interests in keeping prisons open, full and growing. When the rhetoric of releasing prisoners is used to create fear, panic and more irresponsible spending, remember over 95% of those incarcerated are eventually released regardless of pedantic tactics used to manipulate the public....

It is said that character of a society can be measured by how it treats its most vulnerable and marginalized.  There is no group of citizens more vulnerable or more marginalized, forgotten and forlorn than the elderly incarcerated.  According to the US Department of Justice, elderly inmates represent the most vulnerable of the entire population.  They are subject to systemic abuse and neglect, violated in ways that would make you sick.  They suffer exponentially and in degrading and disgusting circumstances that were never intended, even by the most ardent supporters of tough on crime legislation.... Yet, they are unquestionably proven to be the least risk to society and of recidivism.

Ohio has nearly 7,000 inmates over the age of 50, the age, generally accepted as elderly by the National Institute of Corrections and the State of Ohio.  Based on documented “accelerated aging” studies showing the actual age of an older inmate to be 10 years older than their biological age.

To incarcerate the most vulnerable, lowest risk and most expensive inmates, is costing Ohio $500,000,000 a year; a half billion dollars, money that could go to schools, job training and positive, productive uses.  Resources that should be an investment in the future of Ohio not spent on satisfying the public and political appetite for the last morsel of vengeance.

If Ohio and the ODRC was to release just 3,000 of the eldest, non violent offenders that alone would save over $225 million, stave off the dangerous overcrowding and put Ohio on the cutting edge and moral high ground of the travesty of geriatric incarceration.  The immediate, early release of the elderly non-violent prisoners is both pragmatic and humane.  Simply, it is just the right thing to do.  This is one big bite of the elephant that should be palatable to all.

Some recent related posts:

December 13, 2010 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (20) | TrackBack

"Don't return Jason Pepper to prison"

The title of this post is the headline of this effective new editorial in today's Des Moines Register in response to the Supreme Court oral argument last week in Pepper v. US (previously discussed here and here).  Here are excerpts:

Jason Pepper's life changed dramatically when he was arrested in 2003 for possession and sale of methamphetamine.  The change might have been for the better, except that he has been entangled in the federal judicial bureaucracy for the past seven years.  His best hope now is that the U.S. Supreme Court will end his legal nightmare.

Pepper, 31, formerly of Akron, Ia., served a two-year sentence in federal prison, where he successfully completed drug treatment, and upon release went back to school, married his high school sweetheart, got a job and today is living a productive life in St. Joseph, Ill.  His debt to the government may not be not over, however: He faces the prospect of returning to federal prison where he could serve an additional sentence.

The U.S. Supreme Court, which heard arguments in Pepper's appeal Monday, has the opportunity to limit that sentence to time served.  That is what it should do....

Pepper's life is on hold because federal judges disagree on whether his original sentence was too short.  He completed that sentence, but appeals judges later ruled it was too lenient, and he was subsequently resentenced to another 40 months in prison.  The question before the Supreme Court: Should he get credit for straightening out his life since his release from prison while his case was on appeal?

The answer would be obvious to those who believe the purpose of prison is not just retribution but reform, and it appears to have worked in this case.  What possible interest would be served by sending him back for more time in federal prison now?

Also troubling is why a federal case was made of a small-time drug offender such as Pepper in the first place.  Had his case been prosecuted in Iowa state court, he would not be facing the federal sentencing equivalent of double jeopardy.  Instead, based on his successful rehabilitation, he would have been eligible for early release from prison on parole and allowed to rebuild his life.

There is no equivalent parole system in the federal courts, and prison sentences measured in decades for minor drug offenders are common.  Meanwhile, defendants can be caught up for years in battles between trial courts and appeals courts over the proper length of sentences.  Congress tried to eliminate disparity in criminal sentencing, but in the process it created a rule-laden bureaucracy that does not fully acknowledge real life stories of individuals like Jason Pepper.

The Supreme Court should help change that by giving federal judges the discretion to weigh evidence of actual life experience in criminal sentences.

December 13, 2010 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, December 07, 2010

OK prisons not okay because of crowding and costs

OK prisons This recent article in The Oklahoman, which is headlined "Oklahoma lawmakers seek to strike budget balance for prisons; this year marks the 12th year in the past 13 that the Oklahoma Department of Corrections has sought emergency funds from the state Legislature," spotlights struggles facing the Sooner system of justice. Here are excerpts from a lengthy and effective piece that helps explain the accompanying picture:

In 1995, long rows of bunk beds replaced game tables, ironing boards and folding chairs in the day rooms where prisoners inside the Eddie Warrior Women's Correctional Center in Taft would sit when someone with a message of hope would come to speak.

“I remember when we put in those bunks and were quoted as saying it would be temporary,” Justin Jones, Oklahoma Department of Corrections director, said. “Here we are in 2010, and they are still there, except now they are stacked two high. In the Department of Corrections, temporary is at least 15 years.”

This year also marks the 12th year in the past 13 that Corrections has sought emergency funds from the state Legislature. Since 1995, the prison population has grown from 17,983 inmates to 26,720 and state appropriations have increased from $188 million to more than $461 million, despite the department having trimmed $76 million from its budget in the past two years. The department estimates it now needs more than $592 million to operate.... With the Legislature's bill-filing deadline for 2011 less than a week away, newly elected Speaker of the House Kris Steele, R-Shawnee, is pushing for a series of short-term steps to reduce the budget strain.... “I think public safety is a top priority in our state and as a result, historically, Oklahoma's answer to that has been incarceration,” Steele said. “It's been kind of a one-size-fits-all approach. Lawmakers have been reluctant to dig in ... nobody wants to be perceived to be soft on crime.”

In addition, supporters of reforms in the criminal justice system that has helped make Oklahoma a state of incarceration — it leads the nation in locking up women on a per-capita basis and is consistently in the top five for incarcerating men — say it has helped reduce Oklahoma's crime rate and improved public safety. “I can tell you from a fiscal standpoint ... (and) from a human resource standpoint we are going to have to do something different,” Steele said.

Steele said three numbers stand out in the research: 68 percent of female offenders aren't a danger to public safety; the state prison system is operating at 99 percent capacity, which means there is little room for more violent offenders; and 70 percent of children with a parent in prison wind up being incarcerated at some point in their lives.

A recent Tulsa World survey also showed strong public support for finding alternatives to incarceration for many nonviolent female offenders and for doing more to help the children they leave behind. Sen. Brian Bingman, the new Senate president pro tem, said he supports “anything that we can do to keep nonviolent criminals out of prisons.”...

Prison officials have maintained for decades the system is overcrowded and underfunded, in large part because offender growth is not funded until after the fact and often is not annualized. The latest unfunded Legislative mandate is the “85 Percent Rule,” which requires persons convicted of certain crimes to serve at least 85 percent of their sentence before they can be considered for parole.

Signed into law in 2000, the list of those crimes has grown from 11 to 24 offenses, which Jones said ensures the average prison stay will steadily increase. The number of “85 Percent” offenders already has risen from 53 in December of 2000 to 5,086 in December of 2009.

December 7, 2010 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Sunday, December 05, 2010

Notable new article on the rights of children of the incarcerated

I just came across this new article available via SSRN titled "Children of Incarcerated Parents: The Child’s Constitutional Right to the Family Relationship."  Here is the abstract:

This Article describes the vast population of children with incarcerated parents.  The central argument reframes sentencing law and prison visitation policy through the lens of children’s rights, rather than the traditional frame of prisoners’ rights.  It then suggests as a possible legal basis for children's right to a relationship with their convicted parents the First Amendment freedom of association and a due process liberty interest.  The argument is developed through comparative analysis of current sentencing law and visitation policy in New York State and the federal system, as well as First Amendment doctrinal analysis. International law and practice illustrate that the status quo in the United States need not be the only approach.

The author of this notable article is also notable. The article is authored by Chesa Boudin, a 3L at Yale Law School and the son of the Weather Underground radical Kathy Boudin.  Kathy Boudin served 20 years in New York State prison after she was convicted in 1984 of felony murder for her participation in an armed robbery that resulted in the killing of three people.

December 5, 2010 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (5) | TrackBack

Saturday, December 04, 2010

"Are All Murderers Mentally Ill?"

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

Elaine Whitfield Sharp is a defense attorney who has worked on hundreds of murder cases over the past 20 years [who see a] fundamental problem with capital punishment....  "You see, I truly believe that murderers are mentally ill," she explains. "Their brains don't work like the rest of ours do.  To deliberately kill someone requires crossing a profound boundary.  Most of us couldn't do it. We couldn't even think about it.  But they can.  They do.  Why?  Because they're mentally ill.  And fundamentally, as a society, I believe it is barbaric to kill people who are ill."

That doesn't mean Sharp thinks murderers should be excused for their behavior or set free.  "Clearly, we need to lock these people up, and keep them away from the rest of us," she continues.  "Because they're not going to stay within acceptable bounds. They're a danger to others."  But she says most of us make the mistake, when we hear about a murderer, of projecting that they're like us and simply choosing to do this heinous crime. And so, imagining ourselves doing something so terrible, we feel they should be severely punished for that choice.  "But," Sharp argues, "they're not like us.  That's why they can do it."...

"Murderers seem to have no appreciation of boundaries," Sharp explains. "And it shows up in all aspects of their lives.  Most criminals I deal with are very narcissistic.  They're blame-shifters, manipulative, and can't feel anyone else's pain but their own.  A consistent hallmark, in fact, particularly of killers, is this extreme narcissism."  Sharp points to the book People of the Lie, by the late M. Scott Peck, as a good description of a killer's personality disorder.

"These people are always the victim, it's always someone else's fault, they have no sense of other people's boundaries, and they really can't see how twisted that view is," she says. "It's a disorder."...

Certainly the evidence, or perhaps just awareness, of how widespread mental illness is among criminals, and especially those incarcerated for violent crimes, seems to be growing.  In 1999, the Bureau of Justice Statistics (BJS) estimated the percentage of inmates suffering from a significant mental condition at 16 percent.  In a comparable report issued in 2006, the BJS revised that number upward to over 50 percent....

Again, Sharp and the others aren't arguing that violent criminals and murderers should be allowed to go free.  But if, in fact, murderers who commit grisly crimes do so because of warped minds -- perhaps because of trauma and abuse endured as children, or perhaps because of organic, biological deficits -- if, in fact, they are mentally ill in ways that make it impossible for them to see the world or appropriate boundaries and behaviors the way the rest of us do.  Is it appropriate, ethical, or right to kill them for their acts?  Or is it, as Sharp argues, a barbaric thing for a civilized society to do?

Even if one were to accept the premise that all or most murderers are mentally ill, I think such an assertion would provide greater support for life imprisonment without parole for all murderers than for categorical abolition of the death penalty.

December 4, 2010 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (14) | TrackBack

Thursday, December 02, 2010

Georgia federal prosecutor endorses resentencing of defendants sentenced by disgraced federal judge Jack Camp

This new AP story out of Atlanta provides heartening reminder that federal prosecutors will sometimes take proactively steps to ensure justice is served (especially when a federal judge goes bad).  Here are some of the details:

Federal prosecutors in Georgia are disclosing allegations that a federal judge in Atlanta, already convicted of drug possession, may have shown racial bias when sentencing defendants earlier this year.

U.S. Attorney Sally Yates says a woman who developed a personal relationship with former U.S. Senior Judge Jack Camp in May has told prosecutors he said he had a difficult time sentencing black men because they reminded him of someone he didn't like.

Yates says her office will comply with requests from defendants who want a review of their cases before Camp. For those sentenced by Camp from May through September, Yates says prosecutors will not oppose requests for re-sentencing.

The full statement today made by US Attorney Yates can be found in this link.  The statement is remarkable in various respects, and here are some legnthy excerpts:

The United States Attorney's Office has one responsibility -- to seek justice. To fulfill that responsibility, we are today disclosing information that we have recently discovered to the public as well as to defendants who may be affected by this information.

On November 19, 2010, former Senior District Judge Jack T. Camp ("Camp") pleaded guilty to aiding a felon in possessing illegal drugs, possessing illegal drugs, and converting government property to private use. Our office is recused from the prosecution of Camp, which is being handled by the Public Integrity Section of the Department of Justice....

We have since reviewed the information provided by Public Integrity and interviewed individuals with close connections to the criminal allegations, including Camp.  We believe that the prompt disclosure of any arguably significant information is critical to our mission of fair and impartial justice.  Consequently, we are providing information beyond that which we are legally required to disclose [and] we have identified the following information that we believe should be disclosed immediately: ...

According to witnesses and Camp, from approximately May, 2010 until the end of September, 2010, on a roughly biweekly basis, Camp engaged in the illegal use of controlled substances.  During this approximately four-month period, Camp consumed marijuana, powder cocaine, Xanax, Roxicontin, and other unknown prescription painkillers....

A second area of inquiry pertains to witnesses' statements relating to potential racial bias. Witness 1, who became acquainted with and developed a personal relationship with Camp in approximately May of 2010, stated that Camp disliked a particular individual ("Individual A"), who was African-American and who also had a personal relationship with Witness 1.  According to Witness 1, Camp told her that when African-American men appeared before him, he had a difficult time adjudicating their cases and specifically determining their sentences because he could not differentiate them from Individual A in light of his feelings about Individual A....

Finally, Witness 1 said that Camp described a case where a female defendant reminded Camp of Witness 1, so he gave her a 12-month sentence instead of the suggested 60-month sentence.  We identified a case during this period where Camp sentenced a white female defendant to a 15-month prison term instead of the 30-37 months recommended by the Sentencing Guidelines.  There is also evidence that confirms that Camp consulted with Witness 1 during the relevant period regarding the sentences that he imposed....

When our office confronted Camp with the above allegations, he said that he did not make the statements attributed to him by either Witness 1 or Witness 2.  He further denied ever taking any judicial action based on racial bias....

Our only interest in any case that we have prosecuted before Camp is ensuring that justice is served. To that end, given these disturbing facts and allegations, this office will evaluate any criminal case adjudicated by Camp for impairment or bias that a defendant requests that we review.  Furthermore, from May of 2010 forward, there is evidence that Camp's judicial decision-making process may have been impacted by bias and/or impairment and it has been established that he was involved in criminal conduct during this period. Therefore, we will not object to a defendant's request for a resentencing in any case in which the defendant was sentenced during this time.

In addition to wondering how many defendants Judge Camp sentenced since May 2010, I am also wondering whether and how this information might come to impact Judge Camp's own upcoming sentencing.  I have suggested in prior posts that Judge Camp seemed to get a pretty sweet plea deal in light of his offense conduct, and now I am even more troubled by what this bad judge was doing. I think evidence of his perversion of a fair justice system he swore to uphold ought to be an aggravating factor in his ultimate sentencign pursuant to the purpose provisions set forth in 18 USC 3553(a)(2).

Related prior posts (which generated lots of notable comments):

December 2, 2010 in Celebrity sentencings, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (8) | TrackBack

Wednesday, December 01, 2010

"Multiple murder suspect had benefited from three-strikes leniency"

The title of this post is the headline of this remarkable story in today's Los Angeles Times.  Here is how the piece starts:

To hear him tell his story, John Wesley Ewell was the victim of an overly harsh criminal justice system.  The South Los Angeles hairstylist complained to journalists over the last decade about the unfairness of the state's tough three-strikes law, saying he lived in fear that even a small offense would land him back in prison for life.

He even appeared on the "The Montel Williams Show" to argue the case against three strikes.  A caption that flashed on the screen when Ewell spoke read: "Afraid to leave his house because he has 2 'Strikes.'"

But Ewell is now charged with murdering four people in a series of home invasion robberies that terrorized the South Bay this fall.  On Tuesday, he pleaded not guilty during a brief appearance at the Airport Courthouse.

Far from embodying the severity of the justice system, Ewell benefited from its lenience over the last 16 years, according to a Times review of court records and interviews.

Ewell has a lengthy criminal history that includes two robbery convictions from the 1980s. Nevertheless, the Los Angeles County district attorney's office decided on four occasions against seeking to use the full weight of the three-strikes law when he was charged with new crimes.

And this year, after Ewell was arrested three times for allegedly stealing from Home Depot stores, a judge agreed to delay sending Ewell to prison so he could take care of some medical problems.  It was during that delay, authorities say, that Ewell robbed three homes and killed the victims.

"He should have been in prison a long time ago," said Leamon "Kelly" Turnage, whose parents were among the victims.  "It is a shock to me that no one is willing to take responsibility for letting this killer go."

Ewell's case is likely to fuel more debate about the practice of many California prosecutors to seek less than the maximum sentence for some three-strikers. 

Under the law, offenders with two previous convictions for serious or violent crimes can be sentenced to prison for 25 years to life if they are convicted of another felony, no matter how minor. But most prosecutors use discretion in deciding when to seek life terms.  Since 2000, the L.A. County district attorney's office has generally prohibited prosecutors from seeking possible life sentences when a defendant's third strike is not serious or violent.

Prosecutors repeatedly exercised this discretion in Ewell's favor.  Critics argue that the district attorney's policy fails to adequately protect society.  The law, they say, deliberately counted minor crimes as third strikes to put away repeat offenders before they hurt other victims.

Prosecutors say it is unfair to suggest that they — or anyone else — could have predicted that Ewell would turn to such violence.  At 53, he appeared to be little more than a petty thief and hardly fit the profile of a killer.  "I really don't think anybody could pretend to anticipate that … this guy would suddenly go from stealing things from Home Depot to murdering old people," said Los Angeles County Head Deputy Dist. Atty. John Lynch.

The district attorney's policy has won widespread support as a just way of dealing with minor offenders who might have serious criminal pasts.  Although a handful of criminals have benefited from the policy only to later commit violent crimes, the vast majority of offenders prosecuted under the policy have not gone on to kill or carry out other serious crimes.

Detectives describe Ewell as a man who led a double life. Residents of his Harbor Gateway community of Los Angeles knew him as a friendly handyman willing to help others.  But investigators said he was a career criminal whose offenses stretched over more than 30 years.

December 1, 2010 in Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (9) | TrackBack

"Veterans’ Courts and Criminal Responsibility: A Problem Solving History & Approach to the Liminality of Combat Trauma"

The title of this post is the title of this interesting book chapter by Professor Justin Holbrook. Here is the abstract:

In September 2010, a federal judge dismissed a criminal case involving a veteran accused of assaulting a federal police officer to allow the case to be heard by the Buffalo Veterans Treatment Court, a division of Buffalo City Court.  For those involved in veterans’ advocacy and treatment, the case is significant for a number of reasons.

First, it is the first criminal case nationwide to be transferred from federal court to a local veterans treatment court where the goal is to treat — rather than simply punish — those facing the liminal effects of military combat.  Second, the case reignites the still unsettled controversy over whether problem-solving courts generally, and veterans courts specifically, unfairly shift the focus of justice away from the retributive interests of victims to the rehabilitative interests of perpetrators.  Third, the case serves as a signal reminder to all justice system stakeholders, including parties, judges, attorneys, and treatment professionals, of the potential benefits of sidestepping courtroom adversity in favor of a coordinated effort that seeks to ameliorate victim concerns while advancing treatment opportunities for veterans suffering from combat-related trauma.  This chapter explores these issues in light of the history of combat-related trauma and the development of veterans’ treatment courts around the country.

December 1, 2010 in Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (1) | TrackBack

Monday, November 29, 2010

Defendant's post-plea rant on Craigslist costs him sentence reduction for accepting responsibility

The Eighth Circuit has an interesting little "new-media" sentencing opinion today in US v. Wineman, No. 10-1121 (8th Cir. Nov. 29, 2010) (available here). These two paragraphs from the opinion provide some of the particulars:

Wineman emphasizes that the Craigslist rant did not deny any aspect of his role in the conspiracy, did not identify any undercover law enforcement officers or informants, and did not request any retaliation against law enforcement.  He characterizes the rant merely as an expression of frustration with his physical disability and the denial of disability benefits.  Notwithstanding the rant, Wineman argues that his timely guilty plea, his timely admission of all relevant conduct (including drug quantity and possession of a firearm), and his assistance in helping authorities recover methamphetamine from his residence are sufficient to merit a reduction for acceptance of responsibility.

Wineman is correct that a timely guilty plea and admission of relevant conduct “constitute significant evidence of acceptance of responsibility,” but “this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility.”  United States v. Nguyen, 52 F.3d 192, 194 (8th Cir. 1995) (quoting U.S.S.G. § 3E1.1 cmt. n.3).  “The key issue is whether the defendant has shown ‘a recognition and affirmative responsibility for the offense and sincere remorse.’” Id.  In this case, we agree with the district court that the Craigslist rant is inconsistent with any acceptance of responsibility by Wineman.  In the rant, Wineman places responsibility for his offense on the “addicts” who bought his product and on the unnamed officials who denied him disability benefits.  Wineman’s only regret appears to be that law enforcement officers and informants had the temerity to disrupt the methamphetamine “service” he provided to his community, a service he equates to the local “gas station or grocery store.”  This is far removed from “a recognition and affirmative responsibility for the offense and sincere remorse.”  Nguyen, 52 F.3d at 194.

November 29, 2010 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (10) | TrackBack

Friday, November 26, 2010

Any (creative) suggestions for Tom DeLay's upcoming sentencing?

The question in the title of this post is prompted by this AP article, which is headlined "Judge has many options in sentencing ex-Rep. DeLay." Here is how the article starts:

Former U.S. House Majority Leader Tom DeLay argued throughout his trial that the deck was stacked against him by a politically motivated prosecutor and a jury from the most Democratic city in one of the most Republican states.

But following DeLay's conviction Wednesday on money laundering and conspiracy charges, some legal experts say the edge may now shift to the Republican who represented a conservative Houston suburb for 22 years.

Before DeLay's inevitable appeal, which his lawyers predict will be a far friendlier process than his trial, he faces sentencing next month from Senior Judge Pat Priest. While technically the money laundering charge carries a punishment of up to life in prison, the judge has wide latitude and could end up just giving him probation.

"It is absolutely impossible he would get anywhere near life," said Philip Hilder, a Houston criminal defense attorney and former federal prosecutor. "It would be a period of a few years, if he gets prison."

Barry Pollack, a Washington-based lawyer who represents clients in white-collar and government corruption cases, said the judge may not feel the need to throw the book at DeLay, figuring the conviction itself is severe punishment for someone who once ascended to the No. 2 post in the House of Representatives.

For example, as a convicted felon, DeLay won't be able to run again for public office or even be able to cast a vote until he completes his sentence. "I think in a lot of cases a judge wants to make an example, but I don't see that happening here," Pollack said.

Maybe the sentencing judge should consider ordering DeLay to do a report on the careers of other House leaders like Nancy Pelosi. Or make him become a commentator on MSNBC?

November 26, 2010 in Celebrity sentencings, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (23) | TrackBack

Tuesday, November 23, 2010

Former congressman Duke Cunningham lamenting decision to plead guilty for sentencing break

As reported in this San Diego Union Tribune article, "Randy 'Duke' Cunningham, the disgraced former congressman from Rancho Santa Fe, said in an interview from prison that he regrets pleading guilty almost five years ago to conspiracy and tax evasion charges, and that he did so on the advice of his lawyers when he was physically and emotionally weakened." Here is more:

Prosecutors said he accepted millions in money, gifts, meals and trips from defense contractors Brent Wilkes and Mitchell Wade.  Before admitting guilt, Cunningham — like all defendants — had to say he was doing so voluntarily and was not under duress.

But the former congressman now says that at the time he was physically weak from having dropped close to 100 pounds from cancer treatments and other maladies.  He said he had not eaten for two weeks when his lawyers came to him with the proposed 33-page plea agreement.

He said he balked at first, but lawyers Mark Holscher and K. Lee Blalack told him if he challenged the charges it would cost him millions to fight the case, and he would risk spending the rest of his life in prison.

“Was I knowingly and intelligently signing that thing? I don’t think so in the condition I was in,” he said last week.  “But I trusted my (lawyers).”  He said he did so because he believed and was told he would get a year or two off of his prison term.

Neither Holscher nor Blalack represents Cunningham anymore, and neither could be reached for comment.  When he was sentenced in 2006, Burns gave Cunningham credit for cooperating with prosecutors.  But since then he has failed to a get a further sentence reduction for his help in prosecuting Wilkes.

Cunningham, speaking in a strong and resonant voice, reiterated claims he recently made in a declaration filed in support of a new trial for Wilkes, the former Poway defense contractor convicted of bribing the congressman to get him to use his influence to steer government contracts to Wilkes.

In that declaration and in last week’s interview, Cunningham said Wilkes never bribed him. He also said prosecutors with the U.S. Attorney’s Office in San Diego did not put him on the stand in Wilkes’ trial because his testimony would undermine parts of their case.

Those statements contradict earlier court filings from Cunningham when he was seeking time off for cooperating with prosecutors. In those filings from January, he referred to the “bribes” that Wilkes gave him through a third man, New York financier Thomas Kontogiannis, to pay off mortgages for Cunningham’s Rancho Santa Fe mansion....

He said his time in prison has made him an emerging advocate for prison reform. “I didn’t know jack weenie about what people were going through in here,” he said.

When he served in Congress from 1991 to 2005, Cunningham was a reliable vote for harsher sentencing laws and stricter punishment, but now he says he would do things differently.  For example, votes that made penalties for crack cocaine harsher than for powder cocaine were wrong, he said.

Cunningham said he wants to become a more public advocate for prison and prosecutorial reform.  He said he has written members of Congress volunteering his help — and said that Democratic congressmen will probably be more supportive of his efforts than his former Republican colleagues.

November 23, 2010 in Celebrity sentencings, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6) | TrackBack

Monday, November 22, 2010

'Theorizing Mental Health Courts"

The title of this post is the title of this new article by E. Lea Johnston that is now available via SSRN. Here is the abstract:

To date, no scholarly article has analyzed the theoretical basis of mental health courts, which currently exist in forty-three states.  This article examines the two utilitarian justifications proposed by mental health court advocates -- therapeutic jurisprudence and therapeutic rehabilitation -- and finds both insufficient.  Therapeutic jurisprudence is inadequate to justify mental health courts because of its inability, by definition, to resolve significant normative conflict. In essence, mental health courts express values fundamentally at odds with those underlying the traditional criminal justice system. Furthermore, the ability of therapeutic rehabilitation to offer sufficient theoretical grounding depends on the validity of the assumed link between mental illness and crime.  In particular, mental health courts view participants’ criminal behavior as symptomatic of their mental illnesses and insist that untreated mental illness serves as a major driver of recidivism.  Drawing upon social science research, this article demonstrates that these relationships may not hold for a substantial proportion of individuals served by mental health courts.  The article concludes by identifying alternative theories that may justify these courts.

November 22, 2010 in Offender Characteristics, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, November 19, 2010

Texas Court of Criminal Appeals rejects attack on juve LWOP for murderer

As detailed in this report in the Austin American-Statesman, earlier this week the Texas Court of Criminal Appeals held that "sentencing juvenile murderers to life in prison without any chance of parole is not unreasonably harsh."  Here are more details (along with links inserted to the opinions ):

Chris Joshua Meadoux, convicted of killing two San Antonio friends when he was 16, argued that his no-parole sentence violated the U.S. Constitution's ban on cruel and unusual punishment because juveniles lack maturity, judgment and an adult's sense of responsibility.

But in a 7-2 ruling, the state's highest criminal court said that juveniles may be less morally culpable than adults, but some actions justify imposing the second-harshest penalty available in Texas.

"Given the enormity of the crimes committed by juvenile capital offenders, the Legislature could reasonably conclude that such offenders are incorrigible and that the only prudent course of action is to separate them from society forever," said the opinion [available here], written by Judge Charles Holcomb.  

Although Texas law no longer allows the practice, life without parole was available for juvenile capital murder defendants who were tried as adults from 2005 to 2009.  Twenty teens were sentenced to remain jailed until they die, including Meadoux, now 20.  

A dissenting opinion [available here] by Judge Lawrence Meyers said the court should have ordered new punishment hearings for Meadoux and the other juvenile offenders. Meyers noted that after the U.S. Supreme Court banned executing juvenile killers in 2005, sentences for the affected inmates were commuted to life terms with the possibility of parole after 40 years served. "It's ridiculous to say that a juvenile who was not even eligible for the death penalty" should receive a harsher no-parole sentence, he wrote in the dissent joined by Judge Cheryl Johnson.

In 2005, the Texas Legislature voted to let jurors choose life without parole or execution for capital murder.  Four years later, the law was amended to ban no-parole sentences for those who committed murder while younger than 18.   Several legislators said the move was intended to correct an oversight in the 2005 law, but the no-parole ban was not made retroactive....

The case is Meadoux v. Texas, PD-0123-10.

November 19, 2010 in Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, November 18, 2010

"Ghailani Still Faces Stiff Penalty for Bombings"

The title of this post is the headline of this lengthy and effective new CBS News piece discussing some of the sentencing issues following yesterday's conviction (on only one of 285 counts) of a former GITMO detainee tried in civilian court.  Here are excerpts:

When he is sentenced in January, al Qaeda operative Ahmed Khalfan Ghailani, 36, faces a minimum 20 years of imprisonment, and a possible life sentence, for his conviction Wednesday for his role in the 1998 U.S. embassy bombings in East Africa.

In the first federal terrorism trial of a former detainee at the prison camp at the U.S. naval base in Guantanamo Bay, Cuba, a civilian jury found Ghailani guilty, but only of one of 285 counts levied against him: conspiracy to destroy buildings and property of United States by means of an explosive.

Although the jury determined Ghailani had a hand in a conspiracy that resulted in death, the panel found him personally not guilty on all 224 murder counts -- 11 for those who died in truck bombing of the American embassy in Dar es Salaam, Tanzania, the focus of his trial, and for the 213 people who died in nearly simultaneous explosion in Nairobi, Kenya, on Aug. 7, 1998.

"At the start of this trial, we believed Ahmed was truly innocent of all these charges," lead defense attorney Peter Quijano said outside the Lower Manhattan courthouse Wednesday evening. "We still truly believe he is innocent of all the charges."...

The jury found Ghailani not guilty of four other conspiracy counts, including the top count of the indictment, al Qaeda's global conspiracy to kill Americans, which would have guaranteed the same life sentence being served by four men convicted in the embassy bombings conspiracy in a 2001 trial.

U.S. District Judge Lewis Kaplan, who presided over the month-long trial, scheduled Ghailani's sentencing hearing for January 25, 2011, at 11 a.m. "He will face, and we will seek, the maximum sentence of life without parole when he is sentenced in January," said Preet Bharara, U.S. attorney for the Southern District of New York, in a written statement....

The jury was told that Ghailani was captured in Pakistan in July 2004, but was provided no information about his alleged activities while a fugitive for six years following the Africa bombings or anything about his six years in custody.

He spent two years in a secret CIA prison overseas, where he was subjected to "enhanced interrogation techniques" his lawyers called torture. Then he was moved to Guantanamo for three years before his transfer to the U.S. last year. He has been held in the high security wing of the Metropolitan Correctional Center adjacent to the courthouse....

Over the course of the past month, the jury heard 13 days of testimony and evidence, with 50 prosecution witnesses and hundreds of government exhibits, and two days of closing arguments.  More than a third of the witnesses, including embassy bombing survivors from Africa and FBI agents, had previously testified in the 2001 trial. The defense called no witnesses, nor did the defendant testify....

The government has achieved more than 200 convictions in terrorism-related prosecutions since 9/11 and a 90 percent conviction rate, according the the NYU Center on Law and Security, which tracks theses cases....

With Ghailani facing a 20 year minimum sentence, his attorneys plan to argue that he should get credit for six years served in U.S, custody, a consideration with other al Qaeda suspects detained as "enemy combatants" prior to seeing their legal situations resolved in federal court, such as Jose Padilla and Ali al-Marri.  The defense teams also plans to file a motion for a new trial on the one conspiracy count for which Ghailani was convicted.

If prosecutors fell short, they failed to persuade all the jurors that Ghailani knowingly and willfully participated in the overall al Qaeda conspiracy or that he knew its lethal goals in East Africa.  "We never disputed that he engaged in certain conduct," Quijano said of Ghailani.  "The question both strategically as well as legally, was whether there was proof that he knew."

Unsurprisingly, most of the immediate post-verdict discussion has been about what this result means for the Obama Administration's apparent interest in trying many former GITMO detainee in civilian courts. But, also unsurprisingly, I am immediately interested in the array of unique (and not-so-unique) sentencing issues that Judge Kaplan will be facing. The Government will surely emphasize so-called "acquitted conduct" as part of its advocacy for an LWOP sentence, and I have a feeling prosecutors will adopt an approach to guideline calculations that will have the advisory range urge life as well. Meanwhile, the defense seem likely to urge the minimum sentence of 20 years (as well as credit for time served), and it is especially interesting to speculate about how both sides will spin arguments around all the 3553(a) factors. In other words, sentencing fans, stay tuned.

November 18, 2010 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack