Wednesday, February 23, 2011

Border vigilante who engineered double murder sentenced to death in Arizona

As detailed in this CNN article, which is headlined "Jury decides on death penalty for woman who headed vigilante squad," a high-profile murder trial culminated in a high-profile death sentence yesterday in Arizona.  Here are the details:

Arizona jurors decided an anti-illegal immigration activist -- portrayed as the ringleader of a hit squad -- should receive the death penalty for the killings of a Latino man and his 9-year-old daughter, a court spokeswoman said Tuesday.  The Pima County jury's decision, which was unanimous, is binding....

Forde showed no emotion as the verdict was read, according to CNN Tucson affiliate KGUN.  Her attorney, Eric Larsen, said he "fully expected that this community valued human life greater than this jury did."

Juror Angela Thomas told KGUN, "We chose death because that's what seems fair. There's a little girl in this equation whose father won't be able to walk her down the aisle," she said.  Forde was convicted February 14 on eight counts, including two counts of murder for the shooting deaths of Raul Flores and his daughter, Brisenia, and the attempted murder of the child's mother, Gina Gonzales.

The vigilante attacks were in May 2009.  The child and her father were American-born U.S. citizens but were targeted by Forde and her hit squad. Her alleged accomplices, Albert Robert Gaxiola and Jason Eugene Bush, are scheduled to go on trial later this year.

During the trial, prosecutors portrayed Forde as the ringleader, saying she had planned the raid and the murders to steal weapons, money and drugs to finance a new anti-illegal immigration outfit.  The trio picked the Flores home, prosecutors said, because Gaxiola claimed they would find drugs there.  While Flores had a history of drug-related offenses, no drugs were found in the house.

Gina Gonzalez gave a victim impact statement last week. "I miss my husband, I miss my daughter, I miss my family, I miss my life ... and that's all because of a choice she made," Gonzales said of Forde, according to CNN Tucson affiliate KVOA.

The defense told the jury that Forde has a personality disorder caused by a childhood of abuse, abandonment and living in seven different households by the age of 5, according to KVOA.

February 23, 2011 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics | Permalink | Comments (1) | TrackBack

Saturday, February 19, 2011

Florida still dealing with the fall-out and challenges of Graham

This local article, headlined "After U.S. Supreme Court ruling, local juveniles seek to have sentences thrown out," spotlights some of the issues that Florida continues to confront as a consequence of the Supreme Court's Eighth Amendment decision last year in Graham. Here are excerpts:

Nine months after the U.S. Supreme Court ruled that juveniles can't be sent to prison for life without parole for crimes other than murder, two convicted rapists will be in Palm Beach County court next week seeking to have their sentences thrown out.

David Slocum and Emmanuel Paul were convicted of raping a 17-year-old student from Switzerland after grabbing her at gunpoint on Flagler Drive in 1994. Because they were 17 when the grisly crime was committed their sentences are no longer valid. Their cases will be considered Wednesday.

Florida leads the nation in the number of youths serving life sentences for non-homicide crimes. Resolving the issue is complex because the Legislature abolished parole in 1983. Identical bills have been filed in the Florida House and Senate to establish parole for juveniles who are sentenced to life in prison for non-homicide crimes. However, it would only impact those sentenced in the future.

Even so, Rep. Michael Weinstein, R-Jacksonville, says he doubts the measure he is sponsoring will pass. Having slammed the door on criminals' hopes for early release, many lawmakers don't want to give anyone — even those sentenced as juveniles — the chance for parole, said Weinstein, a Duval County prosecutor.

To make it more palatable, Weinstein is suggesting that teen criminals serve 25 years before they could be considered for parole. Further, they would be required to have exemplary prison records, completed educational courses and taken other steps to prove they could live outside prison walls. Still, Weinstein said, "I would be surprised if it gets done."

A lawyer who has long fought injustice in the criminal justice system told a group of attorneys and judges in West Palm Beach on Friday that Florida's record is disturbing. A staggering 79 percent of the 77 teen criminals in Florida who are serving life sentences for non-homicide crimes are either black or Latino, attorney Bryan Stevenson told members of the F. Malcolm Cunningham Bar Association.

February 19, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, February 16, 2011

Somali pirate gets sentence of nearly 34 years in federal prison

As detailed in this Bloomberg report, "Somali pirate Abduwali Muse was sentenced to 33 years and nine months in prison for hijacking the container ship Maersk Alabama in the Indian Ocean in 2009." Here is more:

U.S. District Judge Loretta Preska in New York handed down the sentence today.  Muse pleaded guilty in May to two counts of hijacking maritime vessels, two of kidnapping and two of hostage taking.  Prosecutors said he led pirates who captured the Maersk Alabama and held its captain, Richard Phillips, for five days.

The sentence is at the top of a range in an arrangement between Muse’s lawyers and prosecutors. The defense asked for the minimum, 27 years.  The government sought the maximum because of what it called the “extraordinarily depraved and violent nature of Muse’s crimes.”

Muse and his companions boarded a ship in the Indian Ocean and took hostages, with Muse threatening to kill everyone aboard with an improvised explosive device if the authorities came, according to prosecutors....

Muse was captured by authorities after the arrival of the USS Bainbridge. Snipers killed his three accomplices, and the Federal Bureau of Investigation brought Muse to New York.

His attorneys, Fiona Doherty and Philip Weinstein, said that their client grew up in poverty in Somalia, where his father sometimes tied him to a tree as punishment.  Muse worked in fishing communities in the coastal area known as Puntland, where pirate gangs have their roots, his attorneys said. He was driven to piracy by poverty, they said.

Muse was 16 at the time of the hijacking, his lawyers said, A U.S. magistrate judge rejected the claim that he was underage.  Assistant U.S. Attorney Brendan McGuire said last year that he told one of his hostages he was 24.

February 16, 2011 in Offender Characteristics, Offense Characteristics | Permalink | Comments (25) | TrackBack

Tuesday, February 15, 2011

Full Eleventh Circuit examining Georgia's procedure for capital defendants under Atkins

As detailed in this Atlanta Journal-Constitution article, which is headlined "Court considers death-penalty standard for mental retardation claims," all the judges of the Eleventh Circuit heard argument today on an interesting and important issue of constitutional capital procedure.  Here are the details:

Warren Hill sits on Georgia's death row, even though a state court judge has found him mentally retarded, which the nation's highest court says bars him from execution.

Hill's problem is that he was found to be mentally retarded under the lowest legal threshold but not the toughest -- beyond a reasonable doubt.  Even though Georgia became the first state in the country over 20 years ago to ban executions of mentally retarded people, it is now the only state that sets the highest barrier for defendants raising such claims to escape execution.

On Tuesday, Hill's lawyer told the federal appeals court in Atlanta that instead of protecting the mentally retarded from execution, Georgia has done just the opposite.  By erecting such a stringent burden of proof, inmates who are erroneously found not to be mentally retarded are going to be put to death, Mark Olive said.

The U.S. Supreme Court did not give states "carte blanche authority" to impose barriers that are impossible to clear, he said.  During lively arguments in a packed courtroom, a number of judges seemed to agree.

Among states with the death penalty, 22 require defendants raising mental retardation claims to prove it by the lowest threshold, a preponderance of the evidence.  Four states have adopted a tougher test, the clear and convincing evidence standard.  Three states have not set a burden of proof.

The 11th U.S. Circuit Court of Appeals did not issue an immediate ruling.  About 10 Georgia death-row inmates who failed to prove mental retardation beyond a reasonable doubt could receive new hearings if the court finds Georgia's standard unconstitutional....

State attorney Beth Burton refused to concede the possibility that mentally retarded inmates will be executed in Georgia.  She told the court that when the U.S. Supreme Court banned the execution of the mentally retarded, it left it up to the states to decide how to evaluate retardation claims.

This prompted questions from judges who wondered whether it would be acceptable if Georgia made it all but impossible for a defendant to prevail in a mental retardation claim.  What about a law that says only defendants with IQs below 30 can be found to be mentally retarded, asked Judge Stanley Marcus.  An IQ of about 70 is generally considered to be the upper limit for a diagnosis of mental retardation. "I think they could do that," Burton responded.

What if the state required defendants to prove retardation beyond a shadow of a doubt, Judge Charles Wilson asked. Would that make a difference?  "I can't say that it would, as crazy as that sounds," Burton replied, noting the U.S. Supreme Court could ultimately overturn such a law.  So as long as there is no Supreme Court decision that forbids a certain way of evaluating the claims, Georgia could set the burden so high no one could ever prove they were mentally retarded, Wilson said.

This prompted Judge J.L. Edmondson to wonder what the state planned to do with Hill, noting he had been found to be mentally retarded.  "If you get the chance, is Georgia going to execute this man?" he asked. "Yes," Burton replied.

Hill sits on death row for bludgeoning a fellow inmate to death with a nail-studded board in 1990. At the time, he was serving a life sentence for killing his girlfriend.

On appeal, Hill's lawyers claimed he was mentally retarded, but Superior Court Judge John Allen of Columbus found Hill could not prove it beyond a reasonable doubt.  After the U.S. Supreme Court banned the execution of the mentally retarded in 2002, Allen reconsidered his initial decision. Allen subsequently found Hill had proven by a preponderance of the evidence -- more likely than not -- that he was mildly mentally retarded. The judge also found the "beyond a reasonable doubt" standard unconstitutional.

The Georgia Supreme Court subsequently overturned Allen in a ruling that was under close scrutiny during Tuesday's arguments.

February 15, 2011 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, February 14, 2011

"Deadly Dilemmas III: Some Kind Words for Preventive Detention"

The title of this post is the title of this notable new paper from Professors Larry Laudan and Ronald Allen, which is now posted on SSRN. Here is the abstract:

This paper explores the role of assessments of dangerousness in the criminal law, arguing that they are ubiquitous not only in setting sentences and guiding bail and parole decisions but, far more importantly, in determining which activities are criminalized and which are not.  While many theorists of the criminal law continue to assert that prospective judgments of dangerousness have no legitimate role in the criminal law (since persons are to be punished supposedly only retrospectively for harms already committed), we argue that it is entirely appropriate to punish people for harms that they are likely to commit, provided that pertinent due process demands are satisfied.  More generally, we deny both the existence and the desirability of a sharp distinction between the aims of criminal law and the aims of other forms of legal control and regulation.

February 14, 2011 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (9) | TrackBack

Sunday, February 13, 2011

Missouri prison breaking in new geriatric wing

This new piece, headlined "Aging inmates challenge Missouri prison system," concerning a new wing of a Missouri prison reports on what is becoming old problem for states dealing with old inmates.  Here are excerpts:

A prison in Missouri's capital now has a geriatric wing as state officials confront an increasingly elderly inmate population.  The "enhanced care unit" opened Jan. 1 at the Jefferson City Correctional Center....

The 36-bed unit is designed as a miniature nursing home, a place where elderly convicts in wheelchairs, strapped to oxygen tanks or struggling with dementia can be segregated from the general prison population.   Prisoners older than 50 represented 6 percent of Missouri state inmates in 1998; two decades later, that figure increased to 15 percent.

State officials plan to open similar units in five more state prisons and eventually build a separate prison hospital for elderly inmates, complete with a dementia unit and a dialysis lab.

Missouri Supreme Court Judge Michael Wolff questions whether the state can afford such specialized care. "I don't think the public is really all that keen on spending hundreds of millions of dollars on running nursing homes in prison for old — dare I say — harmless guys," he said....

The rapid growth in the state's aging prison population — as well as the overall prison population — has been driven not by an uptick in crime but by state sentencing policies...

Medical and corrections officials say that due to a variety of factors — including backgrounds that often include drug and alcohol abuse, high-stress lifestyles and a chronic lack of proper medical care — prisoners tend to age more quickly than people on the outside.  That's why most state corrections agencies classify inmates as "geriatric" at age 50 or 55, the common age when inmates' health begins deteriorating.

Across the country, older inmates pose a much lower risk of recidivism than their younger counterparts, statistics show.  According to the Missouri Department of Corrections, people released from prison at age 20 or younger have a recidivism rate of 23 percent for new crimes after two years.  For those older than 70, only 3.5 percent commit new crimes. 

Some related posts:

February 13, 2011 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

The drug offense (and drug court) part of the story of women in Oklahoma's prisons

As noted in this prior post, a collection of news outlets have come together in Oklahoma to assemble extensive coverage of "Women in Prison" in that state (all of which can be found at this multi-media webpage.)  The latest group of pieces zeroes in on drug offenses, starting with this lead piece headlined "Half of women in prison there for drugs."  Here are excerpts:

Drug-related offenses account for about 12 percent of arrests among females in Oklahoma, and about 50 percent of women in prison are there on drug-related convictions, according to federal and state crime data.

The average sentence in the state for women in drug-related convictions is 5.5 years, according to a Tulsa World analysis of prison sentences since 2000.  Drug court participation in Oklahoma has increased from about 1,500 in 2005 to about 4,200 currently, as more counties add programs....

Oklahoma implemented specialty courts as a method to decrease the number of people going to prison, said Terri White, commissioner of the Oklahoma Department of Mental Health and Substance Abuse Services.  The agency has been pushing the more comprehensive program "Smart on Crime," which promotes specific programs before and after a person is incarcerated.

"We took a step back by one phase," White said.  "We're saying we can step back even further to when contact with law enforcement is made initially or prevent any contact with law enforcement."  The courts are designed to give each participant an individual plan for graduation, which includes home visits, weekly progress reports, random drug testing, and support for obtaining treatment and job skills training.

White said the low re-arrest rate and increases in employment and income among drug court graduates have convinced officials in the criminal justice system that specialty courts work.  But the drawback is a lack of treatment beds statewide.  Between 600 and 900 people are on a waiting list for mental health services each day, White said.

"Drug court offenders do not cut in line because that would not be fair to those who haven't committed a crime and are wanting to get treatment," White said.  "So you may be a person who can't get treatment because you're No. 700.  By the time you get in, you are now in the throes of using again, have stopped taking your medications, have committed a crime or have had contact with law enforcement."

Companion pieces with this story in the Tulsa World are headlined "Tough-on-drugs stance puts more in prison" and "Meth maker turns her life around after prison release."

February 13, 2011 in Drug Offense Sentencing, Offender Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, February 11, 2011

"Longitudinal Guilt: Repeat Offenders, Plea Bargaining, and the Variable Standard of Proof"

The title of this post is the title of this very interesting-looking new paper by Professor Russell Covey now available via SSRN.  Here is the abstract:

The Article introduces a new concept — “longitudinal guilt” — which invites readers to reconsider basic presuppositions about the way our criminal justice system determines guilt in criminal cases.  In short, the idea is that a variety of features of criminal procedure, most importantly, plea bargaining, conspire to change the primary “truthfinding mission” of criminal law from one of adjudicating individual historical cases to one of identifying dangerous “offenders.”  This change of mission is visible in the lower proof standards we apply to repeat criminal offenders.

The first section of this Article explains how plea-bargaining and graduated sentencing systems based on criminal history effectively combine together to lower the standard of proof for repeat criminals.  The second section describes several additional procedural and evidentiary rules that further effectively reduce the standard of proof for recidivists.  The third section argues that the net effect is a criminal justice system that is primarily focused on the identification of a class of “dangerous offenders” based upon their repeated interactions with the system over time rather than the accurate resolution of specific allegations of wrongdoing in individual cases, as is conventionally supposed. In a phrase, we have moved toward a system that constructs guilt “longitudinally.”  The Article concludes with a few brief thoughts on the merits and demerits of longitudinal guilt.

February 11, 2011 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, February 10, 2011

Welcoming "Law and Biosciences Daily Digest" to the blogosphere

I am extremely pleased to see that Professor Nita Farahany has started this great new blog which is to provide "relevant summaries of legal opinions (civil and criminal) in which cognitive neuroscience or behavioral genetics evidence has been introduced."  As Nita notes here, in recent years "at least 2-3 opinions per day are published in which cognitive neuroscience or behavioral genetics evidence has been used."

I will be checking this new blog regularly, in part because the headings from many case digest entries spotlight that a lot of this action has sentencing elements:  "Brain Dysfunction and Capital Mitigation" and "Neuropsychological Testing, Civil Commitment, and Sexually Dangerous Individuals" and "Brain Dysfunction and Cruel and Unusual Punishment."

February 10, 2011 in Offender Characteristics, On blogging | Permalink | Comments (0) | TrackBack

Tuesday, February 08, 2011

Should parents face punishment for their kids' sexting?

The question in the title of this post is prompted by this local story out of Texas, headlined "Proposal Would Punish PARENTS of 'Sexting' Teens."  Here are the details:

A measure which would allow a judge to punish the parents of teenagers who engage in the risky practice known as 'sexting,' was introduced today in the Texas Legislature, and immediately received the support of Texas Attorney General Greg Abbott....

The measure, introduced by State Sen. Kirk Watson (D-Austin), would make sexting a Class C misdemeanor requiring a court appearance for the teenaged violator, and would allow a judge to 'sentence' his or her parent to participate in an education program on sexting's long-term harmful consequences.

'Sexting' is the use of a e-mail or a texting service to transmit an explicit photograph of themselves or of another teen.  "This bill ensures that prosecutors, and, frankly, parents, will have a new, appropriate tool to address this issue," Watson said. "It helps Texas laws keep up with technology and our teenagers."...

Currently, teens engaged in 'sexting' can be charged with possessing or trafficking in child pornography. That offense carries the potential of decades of prison time, plus the requirement that the teen register for the rest of his or her life as a sex offense pervert. "This bill's legal provisions ensure that minors are punished for their improper behavior, but do not face life altering criminal charges," Watson said.

The law would also allow teens who successfully adhere to the court's requirements, which includes completing an ‘education program’ about the consequences of sexting, to petition to have the misdemeanor offense expunged from their records.

February 8, 2011 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (24) | TrackBack

Monday, February 07, 2011

Nebraska considering bills for sentences less than LWOP for juve murderers

As detailed in this local article, which is headlined "Nebraska bills seek to ease sentencing for young killers,"  the one state with one legislative body is considering two different bills concerning sentencing for juve murderers.  Here are the basics:

The Judiciary Committee is considering two bills by Omaha Sen. Brenda Council that would ease sentencing guidelines for young people convicted of murder.

One (LB203) would eliminate the sentence of life in prison for those 18 and younger. For those between 16 and 18 at the time the murder is committed, the maximum sentence would be 50 years in prison. For those younger than 16, the maximum would be 40 years.

Council's second bill (LB202) would permit those 18 and younger sentenced to life without the possibility of parole to petition for a re-sentencing hearing to seek the possibility of parole under certain conditions.

February 7, 2011 in Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Saturday, January 29, 2011

Second Circuit balks at genetic sentencing view of federal child porn offender

Though I think the child porn restitution decision by the Eleventh Circuit in McDaniel (discussed here) was the biggest federal sentencing story yesterday, today's New York Times has this piece reporting on another notable appellate ruling in a child porn sentencing setting.  The piece is headlined "Court Rejects Judge’s Assertion of a Child Pornography Gene," and it starts this way:

A federal appeals court in Manhattan overturned a six-and-a-half-year sentence in a child pornography case on Friday, saying the judge who imposed it improperly found that the defendant would return to viewing child pornography “because of an as-of-yet undiscovered gene.”

The judge, Gary L. Sharpe of Federal District Court in Albany, was quoted as saying, “It is a gene you were born with. And it’s not a gene you can get rid of,” before he sentenced the defendant, Gary Cossey, in December 2009.

A three-judge panel of the United States Court of Appeals for the Second Circuit said in ruling on the defendant’s appeal, “It would be impermissible for the court to base its decision of recidivism on its unsupported theory of genetics.”

Judges Amalya L. Kearse, John M. Walker Jr. and Rosemary S. Pooler ruled that a sentence relying on findings not supported in the record “seriously affects the fairness, integrity and public reputation of judicial proceedings.”

The panel ordered that Mr. Cossey be resentenced by a different judge, a step it said was taken only where a judge’s fairness or the appearance of fairness was in doubt. “This is one such instance,” the panel said.

The Second Circuit's full work in US v. Cossey, No. 09-5170 (2d Cir. Jan. 28, 2011), is available at this link.

January 29, 2011 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (7) | TrackBack

Friday, January 28, 2011

Is it inhumane for a "giant" criminal to be incarcerated in a small cell?

The question in the title of this post might seem like an abstract query for those like Adam Kolber and the many others currently engaging in a robust theoretical debate about the significant of subjective experience to punishment theory and policies (see papers here and here and here and here and here and here for just a portion of this debate).  In fact, as detailed in this new BBC article, the question is currently before a court at The Hague:  

A Dutch prisoner described by his lawyer as a giant has gone to court over the size of his single cell, arguing that it is inhumanely small.  The prisoner, 2.07m tall (6ft 9in) and 230kg (36st), says he cannot properly sleep or use the toilet.

Prison officials have tried to relieve his discomfort by adding a a 2.15m plank and an extra mattress to his bed.  Named by his lawyer as Angelo MacD., he is asking to complete his two-year sentence for fraud under house arrest.

His lawyer, Bas Martens, told a court in The Hague that his client's conditions of detention violated the European Convention on Human Rights. He insisted that MacD. was not trying to get out of serving his time.  "My client just wants to serve a comparable sentence without pain," Mr Martens told Radio Netherlands....

"He is 2.07m tall and a metre wide and a metre deep," he said.  "He is not obese.  He is a giant.  He even walks like a giant, like out of the comic books."

MacD. began his sentence on 29 September and is not due for release until 12 April 2012. His cell in a prison in the south-western town of Krimpen aan de IJssel would probably be adequate for most prisoners but for him, the problems start in the doorway, where he must bow his head to pass through.

His bed, which is fixed to the wall, is 77cm wide and 1.96m long, according to a sketch provided by Mr Martens. This means that his client must sleep on his side ... [and] he now has to "sleep with one eye open in case he falls out of bed", Mr Martens said.

To take a shower, he must first wedge himself into the cubicle, then crouch down under the head. So tiny and low is his toilet, he complains, that "visits" must be kept to the absolute minimum.

Other alleged problems included a lack of adequate space for family visits and suitable seating in the prison canteen.  Mr Martens pointed out that his client was unable to do prison work for similar reasons, despite this being a requirement of his sentence.

A court ruling on the case is expected early next month.

January 28, 2011 in Offender Characteristics, Prisons and prisoners, Who Sentences? | Permalink | Comments (6) | TrackBack

Thursday, January 27, 2011

Re-lists has experts pondering possible SCOTUS reconsideration of Almendarez-Torres

Anyone who has missed deep discussions of the Sixth Amendment and Apprendi jurisprudence in recent sentencing discussions — and you know who you are, fellow sentencing geeks — will likely get real excited upon reading this terrific new post by John Elwood at SCOTUSblog, which is titled "Re-list watch: Will the Court reconsider Almendarez-Torres?".  The post merits a close read in full by all Apprendi aficionados, as this partial excerpt from the start and end of the post highlight:

In the landmark decision Apprendi v. New Jersey (2000), the Supreme Court held that a judge may increase a sentence only if the enhancement was based upon facts found by a jury beyond a reasonable doubt.  The rule recognized only a single exception (and that grudgingly): the fact of a prior conviction, which the Court had narrowly upheld in Almendarez-Torres v. United States (1998), over the dissent of Justices Scalia, Stevens, Souter, and Ginsburg.

Almendarez-Torres has been subject to substantial criticism from the moment Apprendi was decided. The Apprendi majority itself acknowledged that “it is arguable that Almendarez-Torres was incorrectly decided.”  And in a concurrence, Justice Thomas, who had been in the majority in Almendarez-Torres, said that he had “succumbed” to “error” in providing the fifth vote for that decision....

As noted here, the Court called for a response with respect to two petitions that ask the Court to reconsider Almendarez-Torres: Ayala-Segoviano v. United States, 10-5296, and Vazquez v. United States, 10-6117.   Since the government filed briefs in opposition, the Court has relisted those cases three times, at the January 7, 14, and (apparently) 21 Conferences.

It is impossible to know with any certainty what the repeated relists mean.  The relatively lengthy delay of three relistings suggests to me that someone has drafted an opinion dissenting from the denial of cert. — if the past is any indication, Justice Thomas, who has the zeal of the converted on this issue.  I’ve discussed these cases with Tom, who thinks that Justice Kagan may be deciding whether to vote to grant.  While on the Second Circuit, then-Judge Sotomayor noted the “tension between the spirit of [United States v.] Booker [(2005)] — that all facts that fix mandatorily a defendant’s sentence should be found by a jury or admitted by the defendant — and the Supreme Court’s decision in Almendarez-Torres,” but of course she was “bound by the Supreme Court’s ruling[]” in that case.  United States v. Estrada (2d Cir. 2005).

Ayala-Segoviano and Vazquez will give us our first indication of what Justices Sotomayor and Kagan think about the validity of Almendarez-Torres — and about whether stare decisis warrants maintaining one of the most-criticized criminal law precedents still on the books.  The change in the Court’s personnel (particularly the replacement of Justice Stevens with Justice Kagan) may mean there is finally a fourth vote to grant.

January 27, 2011 in Almendarez-Torres and the prior conviction exception, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Wednesday, January 26, 2011

Iowa legislature considering response to Graham allowing juve parole eligibity after 25 years

This local story, headlined "Bill changes Iowa’s sentencing laws for some juvenile felons; Legislation would put state in compliance with a 2010 U.S. Supreme Court ruling," indicates that the Iowa legislature is working on what sounds like a sound response to last year's Graham Eighth Amendment ruling.  Here are the basics:

Some juvenile offenders who were convicted of felonies and sentenced to life without parole would be eligible for release hearings after serving 25 years if a study bill now before the Iowa Senate Judiciary Committee becomes law.

The proposed legislation, reproduced in full below, comes in response to a 2010 U.S. Supreme Court ruling, Graham v. Florida.  The high court ruled that sentencing juveniles who did not commit murder to terms of life without the possibility of parole constituted cruel and unusual punishment and was a violation of Eighth Amendment rights.

The decision has sparked appellate cases throughout the nation, and posed a significant problem in Iowa because current sentencing law does not provide minimum prison terms used to establish a timeline for parole.  Absent such mandatory minimum sentences, state judges have set aside state laws that conflict with the federal ruling and found at least one such offender to be immediately eligible for release review....

The study bill now before Iowa lawmakers sets a mandatory minimum of sentence of 25-years for offenders who commit class A felonies (excluding homicide) while under the age of 18.

January 26, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

"Ohio Mom Kelley Williams-Bolar Jailed for Sending Kids to Better School District"

The title of this post is the headline of this new piece from ABC News covering a crime and punishment story that has been generating controversy in northeast Ohio and now is becoming a topic of national discussion.  Here are the basics:

An Ohio mother's attempt to provide her daughters with a better education has landed her behind bars.

Kelley Williams-Bolar was convicted of lying about her residency to get her daughters into a better school district. "It's overwhelming. I'm exhausted," she said. "I did this for them, so there it is. I did this for them."

Williams-Bolar decided four years ago to send her daughters to a highly ranked school in neighboring Copley-Fairlawn School District. But it wasn't her Akron district of residence, so her children were ineligible to attend school there, even though her father lived within the district's boundaries.

The school district accused Williams-Bolar of lying about her address, falsifying records and, when confronted, having her father file false court papers to get around the system.

Williams-Bolar said she did it to keep her children safe and that she lived part-time with her dad. "When my home got broken into, I felt it was my duty to do something else," Williams-Bolar said....

The district hired a private investigator, who shot video showing Williams-Bolar driving her children into the district.  The school officials asked her to pay $30,000 in back tuition.  Williams-Bolar refused and was indicted and convicted of falsifying her residency records.

She was sentenced last week to 10 days in county jail and put on three years of probation. She will also be required to perform community service.

As a commentary at Salon highlights, many people have had many strong reactions to this case because of the race and class dimensions of a poor black mom being jailed for trying to ensure her kids have access to the same school opportunities as the kids of rich white parents.  And a commentary at Reason rightly spotlights that another part of the story is the exercise of prosecutorial discretion, as state prosecutors were apparently unwilling to offer the mom the opportunity to plead guilty to only a misdemeanor.

January 26, 2011 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (29) | TrackBack

Sunday, January 23, 2011

Tough discussions in California about how to handle serious juve offenders

This piece via the New York Times, which is headlined "Whither Young Offenders? The Debate Has Begun," spotlights the challenging discussions in California concerning what to do with a distinct set of challenging offenders.  Here is an excerpt:

Gov. Jerry Brown’s recent proposal to eliminate California’s Division of Juvenile Justice was billed as a way to cut $242 million from the state budget.  It was also the culmination of a decade-long effort to shut the state’s troubled youth prison system, which for years has been plagued by violence, abuse and decaying facilities.

Much of that effort has been centered in the Bay Area after accusations of abuse and neglect at the institutions surfaced in a 2003 Alameda County lawsuit.  In recent years, some local judges often refused to send young offenders to state institutions, preferring to confine them in county facilities regarded as safer and more effective.

Mr. Brown’s initiative would take that unofficial policy further.  It would scrap the state juvenile justice system and shift responsibility for confining the most violent young offenders to the local level, where they are nearer to family and have more community treatment options.  The move would affect the 1,300 youths in state care, down from 10,000 in 1996.

Even among critics of the Division of Juvenile Justice, the proposed shift has set off a new debate over whether counties are equipped to handle an influx of severely troubled young people.  “I’m disgusted with myself to think of defending D.J.J. with all the things that have happened over the years,” said Sue Burrell, a lawyer at the Youth Law Center in San Francisco, “but if you ask me right now, I would opt for keeping a very, very small D.J.J. open and not throwing the kids to the wolves.”

Ms. Burrell said she was concerned that prosecutors might see counties as unfit to handle serious offenders and thus try many juveniles as adults, forcing teenagers into adult prisons.

Barry Krisberg, a senior fellow at the University of California, Berkeley, School of Law, said that keeping young offenders at the county level might offer them fewer rehabilitation options.  “I would bet that those kids would end up in juvenile hall, in isolation, getting fewer services,” Mr. Krisberg said.  “I don’t think we can shut down the entire state system.”

But Dan Macallair, executive director of the Center on Juvenile and Criminal Justice, a nonprofit group in San Francisco, said he believed young offenders could receive better support at the local level.  “In county juvenile halls, you don’t have the entrenched gang culture and violence you have at the state youth authority,” Mr. Macallair said.  “The counties can offer a continuum of options — maximum security, minimum security, intensive services in the community — that the state could never come close to matching.”

Mr. Macallair, who has called the state institutions “relics of the 19th century,” agreed that the proposed state closings presented challenges, but he said too much hand-wringing would keep resources at the state level and prevent needed changes.  “The state system is not set up for major change,” he said. “If the money won’t be flowing to counties, counties won’t get any better, and you’ll be left with the status quo.”

January 23, 2011 in Offender Characteristics, Prisons and prisoners, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, January 20, 2011

"Inside-Trading Convicts Avoid Prison Term in 44% of New York Court Cases"

The title of this post is the headline of this notable lengthy new article from Bloomberg News.  Here is how it starts, along with some other stats from the piece:

Almost half of the 43 defendants who were sentenced in Manhattan federal court in the past eight years for insider trading avoided a prison term, with many never seeing the inside of a jail cell because they cooperated with prosecutors.

Nineteen who were sentenced since 2003, or 44 percent, weren’t incarcerated, an analysis of court cases by Bloomberg showed. Of the remainder, the average defendant got a prison term of 18.4 months. The greater the profit made on illegal trades, the longer the sentence. The longest term was 10 years. Danielle Chiesi, who pleaded guilty yesterday for her role in the Galleon Group LLC hedge fund insider-trading scandal, faces between 37 and 46 months in prison.

Since 2009, U.S. Attorney Preet Bharara in Manhattan has stepped up insider-trading prosecutions, charging more than 30 people in three overlapping rings. Of the three defendants sentenced so far in the Galleon ring, the average sentence has been 17 months. The nationwide investigation has implicated hedge funds, technology companies and so-called expert- networking firms....

The average sentence in 7,617 fraud cases in fiscal 2009 was 21.8 months, according to the U.S. Sentencing Commission, which establishes the guidelines. Of those convictions, 94.9 percent were the result of guilty pleas and 5.1 percent came at a trial.

In non-insider trading cases that year, judges in Manhattan federal court sentenced Bernard Madoff to 150 years for masterminding the largest Ponzi scheme ever, former KPMG LLP senior manager John Larson got 10 years for selling tax shelters to wealthy clients, and law firm founder Marc Dreier received a 20-year term for cheating hedge funds out of more than $400 million.

A review of government statements issued since 2003 by the Manhattan U.S. Attorney’s Office in cases in which the chief crime was insider trading showed that many sentences included probation or home confinement. Defendants typically were ordered to pay fines and restitution....

Twenty-eight of the 43 sentences reviewed by Bloomberg occurred in 2007 or later, when prosecutors stepped up their scrutiny of insider trading. In those cases, the average sentence was 17.2 months behind bars.

January 20, 2011 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Tuesday, January 18, 2011

Kansas considering getting tougher on repeat drunk drivers

This new piece from the Kansas City Star, which is headlined "Kansas considers sending repeat drunken drivers to prison," showcases my concern with state laws that are unduly lenient on drunk driving and also the appeal of technocorrections in this arena.  Here are excerpts:

Some Kansas lawmakers want to send repeat DUI offenders to prison, but that won’t be easy with the state’s budget problems and prisons that already are overcrowded.

Under newly proposed legislation, a fourth drunken driving conviction would mean prison time.  Currently a year in county jail — not state prison — is the longest sentence regardless of whether an offender has four convictions or 40....

Not everyone thinks the state can afford the changes.  Men’s prisons are already overcrowded, and Kansas struggles to fund education and basic services.  Under the bill, a fourth DUI would carry a prison sentence of as much as 17 months.  That would increase to as much as 34 months for a 10th conviction....

Among other changes Kansas legislators are considering [includes] first offenders [having] to get ignition interlock devices on their vehicles — and pay for it....

Frank Harris, state legislative affairs manager for Mothers Against Drunk Driving, said requiring interlocks for even first-time drunken drivers is probably the most important change and would cost the state nothing. It also would be part of a spreading approach, he said. In 2005, only New Mexico did that and now 13 states do, he said. Such legislation failed last year in Missouri.

Meanwhile, statistics continue to tell a story.  In 2009, four in 10 fatality traffic accidents in Kansas involved drunken driving, as did more than three in 10 in Missouri.  Harris noted that Kansas was one of the few states that year that saw an increase in drunken driving fatalities — up to 154 from 138 the year before.

Some related posts on sentencing drunk drivers and advocacy for ignition locks:

January 18, 2011 in Offender Characteristics, Technocorrections | Permalink | Comments (4) | TrackBack

Sunday, January 16, 2011

Notable new paper on the prosecution and sentencing of children for prostitution

Tamar Birckhead has this notable new paper, titled "The 'Youngest Profession': Consent, Autonomy, and Prostituted Children," posted on SSRN. Here is the abstract:

Although reliable estimates do not exist, the data suggests that the number of children believed to be at risk for commercial sexual exploitation in the United States is between 200000 and 300000 and that the average age of entry is between eleven and fourteen, with some as young as nine. The number of prostituted children who are criminally prosecuted for these acts is equally difficult to estimate.  In 2008 -- the most recent year for which data is available -- approximately 206 males and 643 females under age eighteen were reported to the Federal Bureau of Investigation as having been arrested within United States borders for prostitution and commercialized sex.  Anecdotal evidence suggests, however, that these numbers reflect only a small fraction of the children who face criminal charges as a result of their prostituted status.  Research also reveals that because most states have laws that hold children criminally liable for 'selling' sex, law enforcement and the courts readily pathologize these youth, a significant percentage of whom are runaways, drug addicted or from low-income homes in which they were neglected and abused.  Statistics additionally suggest that the number of American girls who are sexually exploited is increasing, particularly for those between the ages of thirteen and seventeen.  Likewise, it is estimated that eighty percent of prostituted women began this activity when they, themselves, were younger than eighteen.  Yet, nearly all states can criminally prosecute children for prostitution even when they are too young to legally consent to sex with adults, and very few communities have developed effective programs designed to prevent or intervene in the sexual exploitation of youth.

This Article critically examines the prevalence of laws allowing for the criminal prosecution of minors for prostitution.  It argues that rather than maintain a legal scheme that characterizes and treats such juveniles as willing participants who, if harmed, are merely getting what they deserve, a more nuanced approach must be developed in which -- at a minimum -- criminal liability should be consistent with age of consent and statutory rape laws.  It analyzes the range of ways in which states have addressed the problem of prostituted children, and it highlights those few that have successfully utilized strategies of intervention and rehabilitation rather than prosecution and incarceration.  It contrasts the impact of state versus federal legislation as well as domestic versus international policy in this area and the ways in which these differences serve to perpetuate pernicious stereotypes vis-à-vis youth and crime.  The Article addresses the historical treatment of prostituted children as criminals rather than victims by both American law and society, and critiques contemporary rationales for continuing a punitive approach toward these youth.  The Article explores the conflicting statutory, common law, and colloquial meanings of the terms 'prostitution,' 'consent,' and 'bodily autonomy' as they relate to children and sexuality.  It also considers the extent to which the criminal offenses of prostitution and statutory rape address different sets of harms and explores how gender and sexual orientation are implicated in the discussion.  The Article concludes by highlighting model programs directed at prevention, intervention, and rehabilitation as well as proposing strategies for reform, such as decriminalization and diversion.

January 16, 2011 in Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (10) | TrackBack