Friday, June 10, 2011
"California To Release All Prisoners Who Seem Nice Enough"
The title of this post is the amusing headline of this piece at The Onion which explains what might well be part of California's plan to deal with the Supreme Court's ruling in Plata. Here is more:
In an effort to reduce prison populations throughout the state, California governor Jerry Brown announced today that he would release all inmates who seemed as though they were nice enough people.
“The goal of this new initiative is to gather a rough first impression of whether or not a prisoner is a decent-enough-seeming person, and to release him or her back into society based solely on that general gut reaction," said Brown, adding that prison authorities would spend an estimated 12 minutes with each inmate to chat about “this and that” and decide whether or not a prisoner seemed like the friendly sort. "Obviously, some might try to take a swing at the warden in the beginning, but if they calm down from there and maybe smile a few times, they’re probably fine."
At press time, officials at San Quentin State Prison had determined that inmate Vincente “Lobo” Díaz came across as slightly eccentric, granted, but basically likable.
Some prior amusing sentencing-related pieces from The Onion:
- "Lethal Injection Ban Leads To Rise In Back-Alley Lethal Injections"
- "Supreme Court Reaches Landmark 'It Depends' Ruling"
Thursday, June 09, 2011
Justice Scalia advocates radical(?) and justified(?) judicial activism to deal with vague ACCA provision
There are many interest elements to the Supreme Court's work today on the Armed Career Criminal Act in Sykes (opinion here). But, as is often the case, the most notable and quotable part of this statutory sentencing ruling comes from Justice Scalia. In particular, consider how he starts and ends his Sykes dissent:
As the Court's opinion acknowledges, this case is “another in a series,” ante, at 1. More specifically, it is an attempt to clarify, for the fourth time since 2007, what distinguishes “violent felonies” under the residual clause of the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2)(B)(ii), from other crimes. See James v. United States, 550 U. S. 192 (2007); Begay v. United States, 553 U. S. 137 (2008); Chambers v. United States, 555 U. S. 122 (2009). We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports.
As was perhaps predictable, instead of producing a clarification of the Delphic residual clause, today’s opinion produces a fourth ad hoc judgment that will sow further confusion. Insanity, it has been said, is doing the same thing over and over again, but expecting different results. Four times is enough. We should admit that ACCA’s residual provision is a drafting failure and declare it void for vagueness. See Kolender v. Lawson, 461 U. S. 352, 357 (1983)....
We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nittygritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step — indeed, I think it would be highly responsible — to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent.
As the title to this post suggests, I do think it would be a pretty "radical step" to simply lop off the residual clause of ACCA because the courts are struggling to give it clear content. By the same token, however, I do think such a form of judicial activism would be justifiable for many of the reasons Justice Scalia suggests. I wonder if readers have the same reaction to both ACCA and Justice Scalia's proposed statutory deletion due to its vagueness.
SCOTUS gives wins to the prosecution in DePierre and Sykes
The Supreme Court handed down two more of its pending sentencing cases this morning, and here are the early reports from the helpful live-blogging folks at SCOTUSblog:
The Court in DePierre holds that cocaine base is not just crack by cocaine in its chemical form. Here is a link to the opinion in DePierre.
Justice Sotomayor writes for a unanimous Court. Justice Scalia doesn't join a discussion of legislative history.... So the Court holds that the mandatory minimum sentences for cocaine base aren't limited to crack cases. The government wins....
Kennedy writes for a 6-3 majority in Sykes. The opinion in Sykes v. United States is here. Scalia dissents, and the Kagan separately dissents joined by Ginsburg. The Court holds that "felony vehicle flight" is a violent felony under the Armed Career Criminal Act.
Justice Thomas has a lengthy concurrence, arguing against the Court's application of the test announced by the Court in a case called Begay.... Justice Scalia: "We try to include an ACCA residual-clause case in about every second or third volume of hte United States Reports."
Based on these brief descriptions, it seems DePierre is a snooze and Sykes is real juicy. Commentary on both will follow as appropriate.
Wednesday, June 08, 2011
"Predators and Punishment"
The title of this post is the title of this new piece by Steven Erickson and Michael Vitacco, which is forthcoming in Psychology, Public Policy and Law and is now available via SSRN. Here is the abstract:
Psychopathy is characterized as an emotional disorder tightly woven with persistent antisocial behavior. Prevailing legal doctrine and social norms hold psychopaths responsible for their conduct and punishment legitimately flows to psychopaths who violate the law. Recent scholarship, however, has challenged that view by claiming the emotional and cognitive deficits inherent in psychopathy should preclude culpability for some psychopaths. This view necessarily imposes a substantial modification on how the law conceptualizes culpability that is ultimately unwise. Legal responsibility entails the capacity for rationality and psychopaths comport with the established meanings of rationality as understood by the law and the communal intuitions which guide it. Extant scholarship indicates psychopaths are rationale agents and can be fairly subjected to punishment for conduct which violates the law. The law should reject efforts to include psychopaths within its excuse jurisprudence.
Should Conrad Black's lord-like prison behavior impact his resentencing?
The question in the title of this post is prompted by this notable new Chicago Tribune piece headlined "Affidavits: Conrad Black lorded over captive audience in prison." Here are the details:
Conrad Black liked to be addressed as "Lord Black" after he was granted a seat in the British House of Lords. He may have thought the privileges of nobility extended to prison. Two workers at the Florida federal prison where Black was an inmate say he lorded over other inmates, making them perform menial tasks for him, such as ironing his clothes....
Their observations were included in affidavits the U.S. attorney's office in Chicago recently filed ahead of Black's scheduled resentencing June 24 on his two remaining convictions.... Federal prosecutors would like to send Black back to prison to complete the 6 1/2-year sentence he received in 2007 for defrauding investors and obstructing justice. Black was freed on bail last year while he appealed his conviction after serving about 29 months. Two of his fraud convictions were vacated.
Black's attorneys have advocated that his time served is a sufficient sentence for the remaining crimes. In petitioning that Black not be returned to prison, his attorneys described him as a model inmate who tutored other prisoners who were preparing for their General Educational Development tests and volunteered to teach them American history and social economics.
The U.S. attorney's office said Black's characterization of his time behind bars was not entirely accurate. In one of the affidavits, a unit manager at the prison said Black had an entourage of inmates "who performed services for him, acting like servants."
A prison education specialist who supervised Black as a tutor said he was an uninterested instructor. "He projected the attitude that he was better than others in the class, both faculty and students." She added that some inmates saluted Black each day in class.
Black's attorneys denied the government's portrayal of his prison conduct and said they will present a "full and accurate" picture of his activities later this month in court.
The Supreme Court's Pepper ruling earlier this year makes plain that Black's post-sentencing prison behavior can be considered among the 3553(a) factors at his resentencing. But Pepper does not solve the harder question of exactly when and how post-sentencing behavior in prison should impact a resentencing, especially when there are conflicting stories about just what kind of inmate a defendant has been.
In the Black case, I doubt the dueling assertions about Conrads Black's prison behavior will have much of an impact on his resentencing. But maybe others think a sentencing judge ought to find this kind of information especially important in this kind of case.
Monday, June 06, 2011
Possible Graham sequel from Jacksonville based on 1st-degree murder charge for 12-year-old
There must be something in the water in Jacksonville, Florida that makes it a special place for the development of cutting-edge juvenile crime and punishment issues. Astute readers know that Terrance Graham, whose case led the Supreme Court last year to declare that LWOP sentence for juveniles for nonhomicide crimes violate the Eighth Amendment, hailed from Jacksonville. Now a possible Graham sequel is in the works from the same locale based on this local story headlined "Jacksonville 12-year-old charged with first-degree murder of brother." Here are some of the disturbing specifics:
Months before Jacksonville police say 12-year-old Cristian Fernandez beat his 2-year-old half brother to death, investigators started asking why the toddler's leg was broken. The family said David Galarriago had an accident while playing on a jungle gym, according to court papers.
Thursday, prosecutors say that wasn't just a lie but a warning sign about the rampant abuse that ultimately took the toddler's life and made Fernandez the youngest person in city history to be charged with first-degree murder.
"It is disturbing, but when you know you have to balance the safety of other children in the home and in the community, it is not so disturbing," State Attorney Angela Corey said after a grand jury indicted Fernandez.
With the indictment, Fernandez is being transported from a juvenile detention center to the Duval County jail although Corey said he'll be placed with the jail's juvenile inmates. He faces adult charges that already have criminal law experts wondering how well Fernandez could have understood his actions.
"Especially if it's a beating death, you could argue that the child did not have the intent to kill, which would be necessary even for second-degree murder," said Robert Batey, professor of criminal law at Stetson University College of Law. "Or that the child was not capable of the cool thinking beforehand that's implied by the notion of premeditation."
Galarriago died in March with a fractured skull, a bleeding brain and bruising to his left eye and nose, according to court documents....
Before Fernandez's indictment, the youngest person charged with a Jacksonville homicide was 13-year-old Thomas Thompson. He was convicted and sentenced to life in 1994 for shooting an off-duty corrections officer, Tammy Jo Johnson, to death in a robbery outside a Westside bar.
Christopher Slobogin, director of the criminal justice program at Vanderbilt University Law School, said many states don't even allow such a charge for children Fernandez's age. But Florida's laws allow prosecutors to "direct file" cases in criminal court for children even younger than Fernandez. "Even in Florida, kids this young are rarely prosecuted in adult court, even for crimes this serious," Slobogin said.
Slobogin pointed out that Lionel Tate was charged with first-degree murder at the same age in 1999 for the beating death of a 6-year-old girl he was baby-sitting in Broward County and received a life sentence. That conviction was overturned by an appeals court in 2004 after the panel found it wasn't clear whether Tate understood the charges.
Even in that case, Slobogin said, the first-degree murder charge was only filed after the family rejected a plea deal in juvenile court. Because of his age, Fernandez will not face the death penalty. If convicted of first-degree murder, he would be sentenced to life without parole.
June 6, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack
"Can A Test Really Tell Who's A Psychopath?"
The title of this piece is the headline of this fascinating recent NPR segment, which examines the creation and use of a test for psychopaths. Here are some extended excerpts from the "science" part of the segment:
Canadian psychologist Robert Hare began studying psychopaths in the 1960s, and it's easy to forget now — in part because Hare's work has made the concept of the psychopath so commonplace — but a half-century ago, research on psychopaths was considered both obscure and largely irrelevant to understanding crime.
Back then, Hare says, there was a very clear consensus about where crime came from: Criminals were made, not born. "In those days, social factors, environmental factors were the explanation for all crime," Hare says....
Hare, for one, didn't fully buy this. He thought inborn personality was important . He says that as a psychologist, when he looked at people, he just saw incredible differences in temperament: differences in impulsivity, differences in the capacity for empathy, for feeling guilt.... Ultimately, [his research] led Hare to theorize that people with psychopathic personalities were essentially emotionally deaf. They simply did not have the capacity to feel, in a firsthand way, emotions like empathy and love and remorse....
Hare sat down with his research assistant and together they wrote down all the personality traits they'd consistently seen in the psychopaths they'd studied. Things like lack of empathy, lack of remorse, manipulation, egocentricity, impulsivity, superficial charm, psychological lying. For each of these qualities, Hare wrote up a description so it would be clear what he meant by, say, lack of empathy....The test listed 20 traits to check, and so Hare called it the Psychopath Checklist. Scores were totaled at the end — 40 was the highest score, but anything over 30 certified the test taker as a psychopath. Hare next tested his test to make sure that it was "scientifically reliable" — that two people using the test on the same person would reach the same conclusion about whether that person was a psychopath. In research settings, the PCL-R's reliability appeared astonishingly good.....
For about five years, Hare's test did exactly what he wanted it to do: make the science of psychopathy better. Psychopathy researchers from around the world bombarded Hare's lab with requests to use the PCL-R. They published study after study on their findings.
Then, in the mid-'80s, one of Hare's students, an undergraduate named Randy Kropp, decided to conduct a different kind of study using the PCL-R. Kropp selected a group of prisoners with high, low and moderate scores on the PCL-R, then followed them after their release from prison. He wanted to see whether prisoners with high scores were more likely to commit crimes than those with low scores once they were out on parole. About a year later, he published his findings.
"Those who had low scores on the PCL-R, about 20 to 25 percent would be re-convicted within four or five years," says Hare. "In the high group, it was about 80 percent." So a parolee who scored high had an 80 percent chance of committing another offense within the next five years. Low scorers had just a 20 percent chance of recidivism....
Suddenly, the PCL-R — a personality test used only in marginal academic research — appeared to identify the world's most serious chronic criminals. The research community was stunned, says Stephen Hart, a former student of Hare's who is now a leader in the field of psychopathy research....
Its predictive ability made the test potentially useful outside the lab. Shortly after Kropp's finding went public, Hart recalls, Hare's lab got a visit from Canada's National Parole Board. It wanted the test: "They said quite literally, 'What we want to do is give everybody this test, and then have the test score written in big red numbers on the front of the file. No parole board should be able to make a decision without having some knowledge of whether or not somebody is psychopathic!' "
[A]t least initially, Hare was deeply concerned about letting people in the criminal justice system use the PCL-R. He feared that the test, created purely for research purposes, might be used incorrectly in the real world and could hurt people. Hare was particularly worried, he says, because by that point, the test had become widely respected as a scientifically reliable instrument.... For years, Hare made it clear to his students that he would not give the test out to anyone working in the criminal justice system....
While Hare remains a strong believer that his test works well for the kind of basic scientific research that it was originally designed for, he and others have begun to wonder if it does as good a job outside the lab. "Once you get into the real world, there does seem to be some lessening of reliability," says Daniel Murrie, a professor at the University of Virginia who has studied what happens when psychological tests are taken from a rarefied research environment and transferred to the rough-and-tumble world of criminal justice.
About four years ago, Murrie decided to study the PCL-R to look at what happened when a psychologist hired by the prosecution gave Hare's test to the same prisoner as a psychologist hired by the defense. Did those two psychologists give the same score to the same person? The answer, says Murrie, was no. "Ten, 15, even 20-point score differences we found," he says, " And overall there was about an 8-point difference in scores."
The question is why. One possibility, Murrie argues, is that the psychologists using the test in prisons and courts might not be well-trained. "We don't know if the people giving the test in the field have gotten formal, rigorous training, or if they've just sort of bought the manual and maybe read a couple of papers and just decided to start using it," Murrie says.
But Murrie thinks it's also something else. He says that in his study, psychologists hired by the prosecution consistently gave higher scores than psychologists employed by the defense. Probably, Murrie says, because they're being paid for those opinions, and that money influences them.
The idea that criminal behavior is primarily a product of poor environments has much less power today, in part because Hare's work seemed to teach us that crime resides inside the person. Inborn personality traits, like empathy, can influence whether people participate in crime.
When you think about criminals this way — as people who are almost genetically predisposed to crime — you are much less likely to invest in their rehabilitation than if you saw their acts as the product of unfortunate environmental circumstances.
This is why it's so important to figure out if bias and bad training are affecting Hare's test to the point that it is potentially mislabeling people. After all, once someone is labeled as a psychopath, what can you do with him? Nothing but lock him away.
Along with this segment, the NPR website has this companion page titled "Expert Panel: Weighing The Value Of A Test For Psychopaths." This page sets out these views on the PCL-R's role in the criminal justice system:
- "Masking Bias With Science" by Karen Franklin
- "Identifying The Bad Apples" by Henry Richards
- "An Unreliable And Stigmatizing Tool" by John Edens
SCOTUS grants cert in significant habeas case and resolves one ACCA issue
The Supreme Court was back in action this morning, and the early reports from the SCOTUSblog folks indicate a significant habeas cert grant and the handing down of one Armed Career Criminal Act sentencing decision. Here are the basics:
There are two [cert.] grants [including] Martinez v. Ryan....
The Martinez cert grant is a big deal in habeas law. It involves the circumstances in which there is a constitutional right to effective counsel in post-conviction proceedings. And the Martinez v. Ryan case page [is at this link]....
The second opinion [handed down today] is McNeill v. United States. This is an opinion by Justice Thomas. The Court is unanimous. The Fourth Circuit's decision is affirmed. Here is the McNeill opinion.
The Court holds that a federal sentencing court must determine whether an offense under state law is a serious drug offense by consulting the maximum term of imprisonment applicable to a defendant's prior state drug offense at the time of the conviction. So changes to the drug offense are not relevant. It's the time of conviction.
UPDATE: This AP report on McNeill provides all you need to know about the decision via its headline: "Court: Career criminal won't get less prison time." Also, Ellen Podgor notes here that a case in which cert was denied today involved action hero Wesley Snipes.
Sunday, June 05, 2011
House arrest(!?!?!) for wealthy repeat dangerous driver who killed two in hit-and-run
A helpful reader forwarded to me this remarkable (and troubling?) sentencing story from the Chicago Tribue, which is headlined "LeVin gets house arrest after undisclosed settlement; Illinois man will pay undisclosed settlement, serve two years house arrest for deadly Porsche hit-and-run case." Here are the remarkable details:
The scion of a wealthy Chicago-area family pleaded guilty in a South Florida court Friday to killing two British businessmen with his Porsche but avoided prison after agreeing to pay an undisclosed sum to the widows. Ryan LeVin, 36, will spend two years under house arrest in his parents' oceanside condominium....
The businessmen's widows supported the sentence, and their attorneys collected checks from LeVin immediately after Friday morning's hearing. LeVin spoke only at the judge's prodding and offered no apology during the proceeding, where he pleaded guilty to leaving the scene of a fatal crash and two counts of vehicular homicide. "The need for restitution does outweigh the need for prison," Broward Circuit Judge Barbara McCarthy said.
LeVin admitted to being behind the wheel of his $120,000 Porsche 911 Turbo when it jumped a sidewalk and killed Craig Elford, 39, and Kenneth Watkinson, 48, as they were walking to their beachside hotel Feb. 13, 2009. LeVin initially denied driving the speeding car and pinned the blame on a friend.
Given that LeVin's sentencing guidelines called for up to 45 years behind bars, some legal experts say the case seems to be an unsettling example of checkbook justice. "It is an unbelievably light sentence," said Michael Seigel, a University of Florida law professor and former federal prosecutor. "It is very disturbing."...
At the time of the crash, LeVin was on probation in Illinois for a 2006 case in which he had driven into a Chicago police officer and instigated a chase on the Kennedy Expressway. Court records show LeVin has more than 50 traffic violations and a long history of drug abuse.
Illinois officials will work with Florida authorities to return LeVin to his home state, where he faces a parole violation stemming from the 2006 incident, an Illinois corrections spokeswoman said. Illinois will seek to have his parole revoked and sent back to prison.
Rather than agree to a deal with Florida prosecutors, who wanted him to serve 10 years in prison, LeVin took an open plea that placed his fate in the judge's hands. His lawyer argued that the need for LeVin to pay restitution to the men's widows and children outweighed the need for LeVin to serve prison time.
The payout settles a civil suit filed by the men's families shortly after their deaths. "The wives and children of the deceased were significantly and permanently impacted by this incident, and they have indicated … that there exists a great necessity for restitution which the defendant can, and will, make, if permitted a sentence devoid of incarceration," LeVin's defense attorney David Bogenschutz wrote in court documents.
Bogenschutz, who has requested that the Porsche be returned to LeVin, denied his client had purchased his freedom. "I think he hardly bought his way out of this," Bogenschutz said after the court hearing. "We have two victims who have an absolute say in what should happen in their case. All the judge did was follow the law."
By comparison, a South Florida driver who pleaded guilty to a similar hit-and-run crash with one fatality was sentenced Friday to nine years in prison and ordered to pay $5,000 in restitution.
Broward County Public Defender Howard Finkelstein called it another case of a privileged defendant receiving leniency from the justice system, something rarely afforded a common street criminal. "It is an outrage, and there should not be a single person in our community that is not offended by the fact that it is clear you can buy justice in Broward County," Finkelstein said. "Our clients in similar situations, in every case, go to prison for substantial periods of time. "If it is appropriate that you not go to prison when you have money, it should also be appropriate that you not go to prison when you have no money."...
LeVin's silver-spoon existence will hardly be cramped during his two years of house arrest, when he is confined to one of his parents' two $600,000 seaside condos. He can exercise in the building's gym, attend church and does not have to wear an electronic monitor to ensure his whereabouts. The house arrest will be followed by 10 years of probation. He is prohibited from driving.
In supporting the sentence, both widows wrote letters to the judge describing the financial hardships they've suffered since losing their husbands, who were the sole earners in their families. Watson left behind three children, and Elford had two daughters.
The widows agreed to LeVin's staying out of prison with certain conditions, including immediate payment to settle a civil wrongful-death lawsuit they had filed against him. "We have been living in uncertainty and financial need," Kirsty Watkinson wrote. "We need closure so we can start to move on with our lives."
LeVin initially declined to speak in court, but the judge asked him to spit out his chewing gum, look at the photographs of the men's mangled bodies and make a statement. Clearly nervous, his face red and glistening with sweat, LeVin said he was ashamed and tortured. But he did not say he was sorry. "There's not a day that goes by that I don't think about this," he said. "I feel complete shame and compassion for the victims. … My heart goes out to them. I would just like to say it's a nightmare."
Bogenschutz said after Friday's hearing that his client has learned his lesson and knows he could wind up in prison if he violates the terms of his house arrest or probation. "I think he's grown up a lot," Bogenschutz said. "He understands now how he has to stay out of trouble. I think this time around was a real eye-opener."
There are so many interesting elements to this story I could (and just may) focus my entire sentencing class this Fall on whether and why we should be troubled by how this case resulted in a seemingly (too) lenient non-prison sentence.
June 5, 2011 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack
Friday, June 03, 2011
Media reporting that John Edwards is to be indicted today
Because sentencing issues arise the moment a defendant gets indicted and has to think about plea possibilities, I see sentencing issues in this ABC News story, headlined "John Edwards to Face Indictment Today." Here are excerpts that include a sentencing prediction:
Unless a last-minute deal comes through, John Edwards will be indicted today on criminal charges after a two-year investigation seeking to connect the former senator to an allegedly illegal scheme to cover-up his extra-marital affair, ABC News has learned.
The case against Edwards, which called on more than 100 witnesses, will seek to prove that hundreds of thousands of dollars were allegedly used illegally to seclude and support his mistress Rielle Hunter, so Edwards could continue his campaign for the presidency in 2008....
If he were to agree to a deal today, Edwards will not be required to serve any time in prison -- but the former high-flying trial attorney he will almost surely lose one thing he holds very dear.
Edwards has stated that he hopes to move back into legal work once this case is behind him. However, in North Carolina, if he pleads guilty or no contest to a criminal offense, he must go before the State Bar -- putting his license to practice law on the line.
Wednesday, June 01, 2011
Lots of news as AG Holder say to USSC lower FSA crack guidelines should be retroactive
June kicks off with big US Sentencing Commission doings: the agency today has been conducting a full-day hearing to consider whether and how its new reduced crack sentencing guidelines prompted by the Fair Sentencing Act should be made retroactive. A few weeks ago, the USSC released this impact analysis of what FSA crack guidelines retroactivity might be, and late yesterday the USSC posted this recidivism analysis reporting on its study of the reoffense rates for offenders who got released a bit earlier from prison due to the last round of reduced crack guidelines that were made retroactive.
Meanwhile, as reported in this Bloomberg piece, Attorney General Eric Holder personally testified before the USSC this morning and he indicated support for (partial) retroactivity of the new reduced crack guidelines:
Holder described the Obama administration’s position today at a hearing before the U.S. Sentencing Commission in Washington, which establishes sentencing policies and is considering whether the shorter sentences should be retroactive. Applying the measure to those previously sentenced could affect about 12,000 inmates....
“We believe that the imprisonment terms of those sentenced pursuant to the old statutory disparity -- who are not considered dangerous drug offenders -- should be alleviated to the extent possible to reflect the new law,” Holder said. Retroactive reductions in sentences shouldn’t apply to those who possessed or used weapons in committing their crimes or offenders with “significant” criminal histories, Holder said.
The full text of AG Holder's written testimony and of many others testifying today before the USSC are linked from this page. Here is a key passage from AG Holder's testimony:
The Commission’s Sentencing Guidelines already make clear that retroactivity of the guideline amendment is inappropriate when its application poses a significant risk to public safety -- and the Administration agrees. In fact, we believe certain dangerous offenders -- including those who have possessed or used weapons in committing their crimes and those who have significant criminal histories -- should be categorically prohibited from receiving the benefits of retroactivity, a step beyond current Commission policy.
The Administration’s suggested approach to retroactivity of the amendment recognizes Congressional intent in the Fair Sentencing Act to differentiate dangerous and violent drug offenders and ensure that their sentences are no less than those originally set. However, we believe that the imprisonment terms of those sentenced pursuant to the old statutory disparity -- who are not considered dangerous drug offenders -- should be alleviated to the extent possible to reflect the new law.
This effort by Holder and DOJ to differentiate dangerous and violent drug offenders from non-violent drug offenders seems sound to me (though the devil can and will often be in the details). I will not be at all surprised if the USSC adopts some version of what the Justice Department is advocating here.
A few related posts on this particular retroactivity decision before the USSC are linked below, and readers interested in a broader understanding of the FSA should check out this February 2011 issue of the Federal Sentencing Reporteron the FSA and those interested in a broader discussion of the last round of crack retroactivity should check out this April 2008 FSR issue on crack retroactivity:
- USSC request comments on possible retroactivity of new crack and drug guidelines
- Revised data from USSC concerning potential impact of FSA guideline retroactivity
June 1, 2011 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Sixth Circuit rejects Atkins and Graham attack on 15-year ACCA mandatory minimum
A Sixth Circuit panel this morning has an interesting little opinion rejecting an Eighth Amendment attack on a mandatory 15-year prison term for a gun possession offense by a career criminal. Here is the start and excerpts from the opinion in US v. Moore, No. 09-5935 (6th Cir. June 1, 2011) (available here):
Defendant Martino Moore, a four-time convicted felon, possessed a firearm one night in 2007. That event carried with it serious ramifications. It meant as an Armed Career Criminal he was subject to a mandatory minimum penalty of 180 months’ imprisonment. Moore argues on appeal that the imposition of this mandatory minimum sentence, as applied to him, violates the Eighth Amendment. We disagree and thus affirm....
Moore argues that his mandated minimum sentence of fifteen years’ imprisonment violates the Eighth Amendment’s ban on cruel and unusual punishment. At the heart of his argument is the belief that a unique mitigating factor — his reduced culpability resulting from mental retardation — transforms an otherwise constitutional sentence into an unconstitutional one. In United States v. Tucker, we held that “[i]mposing a mandatory minimum sentence on a defendant with limited mental capabilities does not violate the Eighth Amendment ban against cruel and unusual punishment.” 204 F. App’x 518, 521 (6th Cir. 2006). We see no reason to depart from Tucker. Further, all of the circumstances of this case, including Moore’s mildly diminished mental capacity, convince us that the district court’s sentence was not grossly disproportionate to the crime committed.
Sunday, May 29, 2011
"Eventually, science will kill capital punishment"
The title of this post is the headline of this new notable commentary in the Arizona Republic, which discusses the impact advances in neuroscience and genetics could have on modern criminal justice systems. Here are excerpts:
We don't know if the recently executed child rapist and killer Donald Beaty had the genetic defect that scientists call the "murder gene." I'm pretty sure we didn't want to know. We wanted him dead.
Just as we wanted the murderer Jeffrey Landrigan executed last October, although Landrigan's attorneys claimed he might have possessed the gene, which is believed to create a predisposition to violence when linked with other factors. But the U.S. Supreme Court decided that Landrigan had waived his right to raise that issue, and there was no reprieve coming from the governor.
"In this area the science appears to be going one way and the politics another," said Gary E. Marchant, executive director of the Center for Law, Science & Innovations at Arizona State University's Sandra Day O'Connor College of Law. Marchant has a law degree from Harvard and a Ph.D. in genetics from the University of British Columbia.
He recently hosted a conference at ASU that dealt with advances in neuroscience and genetics and how they help to explain criminal behavior. "Right now, politics is winning out in this discussion," Marchant said. "But at some point it will become impossible to deny the science. There will be so much evidence."
For generations, capital punishment has been a moral, economic and political issue. In the not-to-distant future, science will kill the death penalty. "There is a ton of new science coming forward in both genetics and neuroscience that describe the brain in a way that leads to a predisposition to violent behavior," Marchant said.
The goal in studying this is to find treatments for those affected, particularly if the conditions can be diagnosed when the person is young. "At our conference there were about 350 people," Marchant said. "There were discussions about what position the criminal-justice system should take. It raises some profound questions that people have differing opinions about, ranging from ignore the science altogether to wanting the information used as a mitigating factor, if not for culpability, then in sentencing."
The science already is beginning to make its way into criminal trials. Marchant pointed to a case in Tennessee in which genetic evidence led to a manslaughter rather than murder conviction. The science won't prevent us from punishing killers, only from executing them. We'd like to believe that criminal behavior has nothing to do with genetics. But in some cases it does. And right now we don't know which ones.
"Defense attorneys are using it right now," Marchant said. "But imagine if a kid gets into trouble and you did testing and found some of these conditions existed within his brain. What then?"...
The value of advances in neuroscience and genetics isn't in preventing people like Harding from facing the death penalty, but in identifying his problem early, treating him and saving the men, women and children who might otherwise become his victims.
I am not sure I concur with the notion that advances in neuroscience and genetics will prove always to be mitigating factors rather than aggravating factors. But I am sure that science will always be changing, if not necessarily killing, how we look at serious crimes and serious punishments.
Friday, May 27, 2011
Another account of the crime rate's changing realities: blame the baby boomers
A great topic of debate this week on the blog has been over how to best account for modern decline in crime rates (see posts and comments here and here). Now, this news article out of California, headlined "People age 40 and up buck tradition, commit more crime while felony juvenile arrests drop," prompts me now to think we can and should blame crime spikes in the 1980s and 1990s and crime declines thereafter to the baby boom generation entering and then leaving the peak crime ages. It also suggests that some baby boomers are bucking the usually tendency for old folks to age out of crime. Here is how this news piece starts and ends:
Researchers studying the effects of California's three-strikes law have found a puzzling trend: older adults are being arrested for felonies in droves, while felony arrests of juveniles are dropping.
The trend can be attributed to an "enormous increase in drug abuse" by an aging population, according to Mike Males of the San Francisco-based Center on Juvenile and Criminal Justice, during a three-strikes symposium at the University of Southern California earlier this month. "We now see a dramatic reversal in the aging of the crime population," Males said. "It baffles me."
Males' finding was part of a report he released in April titled "Striking Out: California's 'Three Strikes and You're Out' Law Has Not Reduced Violent Crime." The report fuels the debate over California's three-strikes law, which passed in 1994 and requires life sentences for third-strike felony convictions....
Males' report [which can be accessed here] recommends that the law be amended to require that the final strike be a violent crime and found that while it was projected to cost taxpayers billions of dollars, had negligible effects on violent crime levels.
At the same time, the age of offenders arrested for felonies has been steadily rising. The number of people over age 40 going to prison has more than quadrupled over the last three decades, according to the study. In 1980, about 24,200 felony arrests were made of the 40-plus age group, with that number growing to 110,700 in 2009.
Meanwhile, the number of arrests of juveniles -- a demographic that experiences the least strike sentencing -- has been on the decline, from 97,000 to 58,600 in the same period.
The average age of a third-striker is 43 and an older population is increasingly being incarcerated, Males said. The development is a peculiar one, according to researchers. "In criminology, we assume that people slow down and commit fewer crimes," said Barry Krisberg, Research and Policy Director at UC Berkeley's Earl Warren Institute on Law. "We may need to revisit that and look at that again."
Juveniles tend to commit violent crimes at a higher rate than the older population, noted Harvey Sherman, deputy public defender of the L.A. County Public Defender's Office. With the nation's overall rate of violent crime at a 50-year low, fewer juveniles are going to jail, Sherman said. At the same time, he expects to see the aging felons trend continue.
"They came back from Vietnam after being shot and they used morphine and heroin," Sherman said. "Part of the addiction and the length of the addiction that some of these people have on these really nasty drugs means we're going to have some older people who just can't get off the dope." The aging inmate population combined with the three-strikes law is foreboding for a cash-strapped state.
Of course, the age of those subject to California's three-strikes law will be older because it takes some time to get the first two strikes and get released to commit yet another strike. In addition, there is reason to suspect and hope that the decline in juve crime is itself a product of the tough three-strikes law because perhaps more folks are fearful of even getting a first strike. And the notion that these trends are all a product of a generation's time in Vietnam is really a bit silly (as is my basic suggestion that we can and should just blame the baby boomers for crime).
There is, however, a broader point that merits emphasis in this context: the nature, age and behaviors of criminals and would-be criminals is always evolving. As I have said before and will say again, because human experience and behavior is always so dynamic, any single or simple assessment of the realities of crime and punishment is likely to be incomplete and may perhaps distort our ability to continue to more sentencing law and policy forward efficiently and effectively.
Recent related posts:
- Wonderfully puzzling violent crime rate continue to decline (despite NFL lockout)
- Making the full-throated case for the notion that more Internet = less crime
Thursday, May 26, 2011
Kidnapper of Elizabeth Smart gets LWOP federal sentence
As detailed in this report from the Salt Lake Tribune, a high-profile kidnapping case wrapped up with an expected and deserved severe sentence for the kidnapper yesterday in federal court in Utah. Here are the basics:
As he’d done in court many times before, Brian David Mitchell quietly sang church hymns Wednesday, with his cuffed hands clasped together and his eyes closed. But the sentencing — for one of the most notable crimes in Utah history — proceeded despite Mitchell’s bizarre behavior.
And at the finale of Mitchell’s eight-year legal saga, the former homeless street preacher’s antics in federal court were overshadowed by an assertive Smart, who evenly delivered a message to the man who took so much from her when she was just 14.
Smart, now 23, drew a deep breath after walking to the center of U.S District Judge Dale Kimball’s courtroom, then turned to face Mitchell, 57. “I don’t have very much to say to you,” she told the unresponsive defendant. “I know exactly what you did,” she said. “I know that you know what you did was wrong. You did it with a full knowledge. I also want you to know that I have a wonderful life now, that no matter what you do, it will not affect me again."...
Smart’s powerful statement came minutes before Kimball ordered Mitchell to spend life behind bars for kidnapping Smart from her Salt Lake City bedroom in order to make her a plural wife. Kimball called Mitchell’s crimes against Smart “unusually heinous and degrading. “A life sentence reflects the seriousness of the crime,” the judge said.
Wednesday, May 25, 2011
Post-Graham advocacy that "Every Child Deserves a Second Chance"
The title of this post is drawn from the title of this new commentary now appearing at The Huffington Post. The piece is by Anthony Barkow, Executive Director of the Center on the Administration of Criminal Law at New York University School of Law, and here are excerpts:
Just one year ago in Graham v. Florida, the Supreme Court of the United States ruled that it is unconstitutional to sentence juveniles to life without the opportunity for parole for a non-homicide crime committed when they were under age 18. The Court concluded that these offenders should have an opportunity to have their sentences reviewed, and the logic of the Court's opinion extends to every young person convicted of a serious crime.
I was a prosecutor for 12 years. During that time, I prosecuted a wide variety of crimes, ranging from international terrorism to securities fraud, from domestic violence and sexual abuse to homicide. I prosecuted cases in which offenders received very substantial sentences. I am proud of my work as a prosecutor and I have no doubt that criminal punishment is critical to keeping communities safe....
But ... there are other youthful defendants who have been sentenced to unjust sentences of life without the opportunity for parole.... [And there is a] critical fact to keep in mind about those seeking to end life without parole for juveniles. No one is arguing that any particular individual should be let out of prison. Ending juvenile life without parole merely leaves open the possibility that a child who commits a crime can petition for release later in life, if he can demonstrate that he is remorseful, has rehabilitated, and will not reoffend. Parole authorities can and should be trusted to make informed, reasoned decisions regarding the release and continued incarceration of inmates petitioning for parole.
This approach makes sense as a matter of justice and economics. Juvenile offenders have diminished culpability: a view supported by science -- and common sense, as anyone can attest to who remembers his or her years as a teenager. Juvenile offenders also have increased potential for rehabilitation and, in fact, even without intervention, most offenders age out of crime commission. Thus, in certain instances, spending on extremely lengthy terms of incarceration on juveniles would be wasteful.
Extending the reasoning in Graham, so that it applies to every young person, will have no significant adverse impact on public safety and will allow for flexibility in juvenile sentencing. This will reduce incarceration costs and support the possibility for rehabilitation in young offenders. As a society we can no longer afford to declare youth worthless and sentence them to die in prison without giving them an opportunity to have their sentence reviewed. Before Graham's next anniversary, policy makers must implement reforms to end the practice of sentencing youth to life without parole.
Third Circuit to hear feds' complaints about 55-month sentence for corrupt state politician
As effectively reported in this new piece in the Philadelphia Inquirer, which is headlined "Prosecutors to argue for longer Fumo jail term," the Third Circuit hears argument today in a high-profile sentencing appeal by prosecutors. Here are the essentials:
Federal prosecutors will appear before a three-judge panel Wednesday to argue that former State Sen. Vincent J. Fumo, nearly midway through a 55-month sentence for corruption, should be resentenced to a longer term. Once one of the most influential politicians in Philadelphia and Harrisburg, Fumo was convicted in 2009 on 137 counts of corruption and fraud. Prosecutors want a sentence that meets federal guidelines, which call for a much longer term of 21 to 27 years....
Fumo was sentenced after the jury found that he had turned his Senate staff into personal servants and political minions, doing errands for him on state time. The jury also found that he had defrauded a pair of nonprofit organizations. After Fumo realized the FBI was on the trail, he tried to obstruct the probe. The wrongdoings cost taxpayers and the nonprofit groups more than $2 million.
At sentencing, U.S. District Judge Ronald L. Buckwalter said the 55-month term was justified by Fumo's public service, 259 letters asking for leniency and extolling Fumo's work, and the nature of Fumo's offenses.
"It's not murder. It's not robbery. It's not even assault," Buckwalter said of Fumo's wrongdoings. "It's nothing violent. It's not the selling of a political office," Buckwalter said at Fumo's sentencing hearing.
His decision produced an outcry, and federal prosecutors are hoping the Third Circuit will send the case back for resentencing. Meanwhile, Fumo is asking for a new trial. The three-judge panel will decide both issues. "It is likely impossible to identify a defendant in recent years who stole over $2 million, abused a position of public trust, and obstructed justice in the process who received a sentence anything like Fumo's," Assistant U.S. Attorney Robert Zauzmer wrote in the government's appeal....
In their court filings, the defense attorneys argue that there were "no significant" errors in Buckwalter's sentencing and that the cost to taxpayers of Fumo's fraud was just below $2.5 million. A greater financial loss, as prosecutors insist occurred, would have likely meant a longer sentence.
Related posts concerning Fumo sentencing and appeal:
- State senator Fumo gets below-guideline sentence of 55-months imprisonment on corruption charges
- Comparing white-collar apples and drug dealing oranges at sentencing
- "Feds seek to appeal 'unreasonable' Fumo sentence"
- Continued buzzing about the (soft?) sentence given to Fumo
- High-profile below-guideline political corruption sentence headed to Third Circuit
- An amusing spat in the Third Circuit over a not-very-brief sentencing brief
- Feds make case to Third Circuit that corruption sentence too low for state senator
UPDATE: As detailed in this Philadelphia Inquirer piece, it appears that at least two judges on the Third Circuit panel indicatyed at oral argument that "the sentencing of the disgraced politician in 2009 was rife with serious procedural errors."
"Beyond Crime and Commitment: Justifying Liberty Deprivations of the Dangerous and Responsible"
The title of this post is the title of this notable new forthcoming piece from Kimberly Kessler Ferzan, which is now available via SSRN. Here is the abstract:
The traditional approaches to dangerous persons have been crime and commitment. The criminal law punishes responsible actors, and the civil law confines the mentally ill. These approaches leave a gap: The state cannot substantially restrict the liberty of responsible actors until they have committed a crime. In response to this gap, the criminal law’s boundaries have expanded to include preparatory offenses and early inchoate conduct that are deserving of only minimal, if any, punishment in attempt to incarcerate the dangerous. Meanwhile, the Supreme Court’s effort to articulate a test of mental disease warranting involuntary confinement of sexual predators has failed to draw a principled distinction between the ordinary criminal and the mentally ill.
This Article argues that rather than contorting the criminal or commitment models, there is a theoretical justification for substantial liberty deprivations of responsible, but dangerous, actors. Drawing on the concept of “liability to defensive force” from the self-defense literature, this Article argues that just as a culpable attacker’s own conduct grounds a defender’s right to response, a dangerous actor who begins a course of criminal conduct grounds the state’s right to stop him. This Article articulates what conduct is sufficient for “liability to preventive interference” as well as what the forms of preventive interference could be. In addition, this new form of liability is assessed in terms of constitutional implications, the civil-criminal divide, and practical considerations.
Tuesday, May 24, 2011
Brother of Raj Rajaratnam asks friends to write letters to judge urging leniency
As detailed in this interesting article, which is headlined "Raj's Brother Tells Friends How They Can Influence Raj's Sentencing With A Letter To The Judge," Rengan Rajaratnam "has sent a long letter to friends asking them to write to Judge Holwell to help make sure his brother Raj gets a more lenient sentence." Here are excerptsfrom the now-public letter:
As we prepare for the appeals process, we need your help and I am I only sending this letter to a handful of people. The sentencing phase is coming up relatively quickly and the federal guidelines are calling for 15 to 19 years in jail. The guidelines are harder and less flexible than many prison sentences for violent and predatory offenders. This is simply unfair, and we are praying for leniency from the judge while we prepare for the appeal.
In the meantime, on behalf of Raj and the family, I would like to enlist your support one last time. Positive character letters from family, friends, and colleagues that know Raj well can play a pivotal role in helping persuade the Hon. Judge Holwell to be fair, and lenient during Raj’s sentencing.
If you can find it in your hearts to write a personal letter to Judge Holwell describing your relationship with Raj; when and how you met; as well as illustrate some of the positive experiences you’ve had with him, it would be of immense service to Raj and our family. The longer you can state you have known Raj, clearly the better.
The goal is to appeal to Judge Howell, by informing him that Raj is a loving human being with deep friendships and ties to the community. That Raj is a person of good character, a positive member of society who is deserving of the court’s leniency. As many of you may be aware, Raj has donated significant amounts of money to charity in excess of $30 MM in the last 5 years alone. If you need specifics, please call me.
It is important that the letter come from you, and paints Raj in a positive light. Since time is of the essence, it would be great if you could send the letters to me before the end of the week or the early part of next week.
The format of the actual letter is important, and there are several examples on the web. I have included one link that I found helpful on some guidelines on how to properly write a character reference: http://www.ehow.com/how_4683439_write-letter-judge-before-sentencing.html
I am interested to hear from experienced federal practitioners concerning whether they believe in this case (or others) that "character letters from family, friends, and colleagues ... can play a pivotal role" in post-Booker sentencing decision-making.
Sunday, May 22, 2011
California considering early "medical parole" for quadriplegic repeat violent offender
As detailed in this AP article, which is headlined "Calif. considers first inmate for medical parole," a repeat violent offender may (or may not) become the first to benefit from California's new medical parole rules. Here is how the piece starts:
Steven Martinez is a repeat violent offender who is 12 years into a 157 years-to-life prison sentence for kidnapping, beating and raping a woman after running her down with his vehicle as she left a San Diego dance club.
A stabbing behind bars left him a quadriplegic, but it's that act that may lead to the 42-year-old inmate's early release. Martinez could become the first California inmate granted medical parole under a law that took effect this year when his release is considered on Tuesday at Corcoran State Prison. The program is intended to parole inmates who are medically incapacitated, saving the state millions of dollars a year.
As the bill was being debated in the Legislature last year, critics worried that it was initially written so broadly that it could free inmates who remain a public safety threat or who are not totally incapacitated. Yet fewer inmates than originally anticipated are expected to qualify under the law, lowering the possible savings as the state struggles to close a $10 billion budget deficit. Moreover, public safety concerns could derail medical parole for some inmates, including Martinez.
Martinez was left permanently paralyzed from the neck down after his spine was severed in a knife fight with two fellow inmates at Centinela State Prison 10 years ago. His medical care alone costs the state about $625,000 a year, according to court documents.
But the Board of Parole Hearings twice has rejected Martinez's pleas for compassionate release, in 2008 and in September 2010, after deciding that he is dangerous even though he can't move. The separate compassionate release law lets the state free inmates who are permanently incapacitated or are terminally ill with less than six months to live.
The board concluded in September that Martinez "remains a violent person capable of using others to carry out his threats." It noted that Martinez repeatedly threatened prison nurses with harm even after he was paralyzed.
Martinez's attorney, Ken Karan of Carlsbad, said his client has at times been neglected in prison. He once suffered a severe pressure sore that required six months of treatment at an outside hospital. Martinez won $750,000 in damages from the department for the poor care, he said. "He can breathe on his own and he can talk. That's it," Karan said. "It's just not reasonable to suggest he is a likely candidate to go out and commit a crime through somebody else."
Richard Sachs, a supervising deputy district attorney in San Diego County, intends to oppose Martinez's release before two parole board commissioners at Corcoran, which is in the southern San Joaquin Valley between Fresno and Bakersfield. "The law is useful for saving money for the state, but it doesn't fit this particular situation because he's still very angry and very violent," Sachs said.