Tuesday, August 27, 2013
"Is it fair for sex offenders to stay listed on a registry for life?"The title of this post is the headline of this recent lengthy article in the St. Louis Post-Dispatch. Here are excerpts:
On one side of the latest debate over Missouri’s sex-offender registry are people such as Daniel Ray Winfrey. In 1991, when Winfrey was 15, he and three others raped and murdered sisters Julie and Robin Kerry at the Chain of Rocks Bridge near St. Louis.
Winfrey testified against his co-defendants in exchange for a 30-year prison sentence. Though back in prison, he has been paroled twice since his conviction. At those times, he was free but still listed on the state’s sex-offender registry website. That website, Gov. Jay Nixon argues, is the only way for most neighbors and others to know of the potential danger while such offenders are among them.
“You wouldn’t want to know if one of these guys moved in next door?” Nixon asked last week. He was defending his veto of a bill that would remove from the website all offenders who, like Winfrey, were under 18 when they committed their crimes.
On the other side are people such as Ali Nemec’s fiancé. He was 17 when he was arrested for having child pornography on his computer. Now 24 and still listed on the registry website, he’s had difficulty at work, has been been turned away from housing and lives with his parents.
“We can’t go to a park, we can’t go to a mall. If there’s an event with our friends near a school, we can’t go,” said Nemec, 23, of St. Peters. “He made a mistake ... (but) he is not the boy that he was. There’s no reason to ruin him for the rest of his life.”
The registry is today’s ultimate “scarlet letter.” Long after they’ve served their time, sex offenders remain barred from parks and schools and limited in their employment and housing options. Their names and faces are posted on the Internet, easily accessible to friends and neighbors.
In Missouri, they stay listed for life, even if they were juveniles when they committed their crimes. The state Legislature passed this year a bill to change that. Nixon vetoed it, potentially setting up an emotionally charged veto fight next month.
The bill would remove from the sex-offender registry website hundreds of offenders such as Nemec’s fiancé and Winfrey, whose crimes were very different but who were both under 18 when they committed them. By one estimate, the bill would cull about 870 names from the more than 13,000 on the site, in addition to future offenders in the same situation.
Those offenders would still be listed on the registry itself, accessible to law enforcement and anyone from the public who requests the information. But the bill would allow the offenders to petition for complete removal from the registry starting five years after the end of their sentences.
“These kids have served their debt to society. They are adults now and haven’t done anything wrong since,” said Rep. Dave Hinson, R-St. Clair, a co-sponsor of the measure. He and others note that listed offenders have high unemployment rates because many employers won’t hire them. “We’re just trying to give them another shot at being productive citizens.”
Nixon, a Democrat, vetoed the bill in July, arguing that it makes no distinction between relatively minor offenders and those who used force or violence. In a news conference at St. Louis police headquarters last week, defending the veto amid the backdrop of uniformed officers, the governor warned that the measure could make Missouri a haven for sex offenders from other states who want to hide from their pasts....
In Missouri, and nationally, the issues connected to sex-offender registries — who should be on them, how long they should stay listed — have been in flux for years, with opposing interests battling to tighten or loosen the requirements.
The concept behind the lists is that because of the high rate of repeat offenses among sex offenders, the public needs to be warned of their whereabouts even after their sentences are served. Civil libertarians have long argued that this amounts to an unconstitutional open-ended punishment, but courts have generally upheld the registries....
Missouri’s system is tougher than some because once a person is on the list, he or she is on it for life, regardless of the severity of the original crime or the offender’s age at the time. Illinois, in contrast, has a lifetime tier and a 10-year tier, based on the details of the crime. People who commit crimes as juveniles have to register, but they aren’t listed on the registry’s public website....
Critics claim that the registry nets are cast so widely they often catch people who most would agree aren’t sexual threats. One commonly cited example are the so-called “Romeo and Juliet” offenders, who had consensual sex with teenage lovers, sometimes when they themselves were teenagers. Critics say those pitfalls in the system are especially ominous in Missouri, where juvenile crimes are listed for life.
August 27, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (28) | TrackBack (0)
Monday, August 26, 2013
Senator Leahy looking for answers from DOJ on pot policy by September 10 hearingEveryone eager to find out how the US Justice Department plans to deal with federal marijuana law and policy in the wake of various significant state reform efforts should now mark September 10, 2013 on their calendars. That's because, according to this post a The BLT, on that Tuesday three weeks from now, Senator Patrick Leahy is going to convene a hearing at which he plans to ask DOJ about its plans. Here are the details:
When it comes to marijuana laws, Senator Patrick Leahy (D-Vt.) wants to know whether the U.S. Department of Justice plans to prosecute or pass.
Nearly a year after voters in two states legalized marijuana possession, the Senate Judiciary Committee chairman once again plans to ask Justice Department officials how they will handle the conflict between state and federal marijuana laws.
Leahy has invited Attorney General Eric Holder and Deputy Attorney General James Cole to testify at a September 10 hearing about Washington and Colorado legalizing small amounts of marijuana for personal use, as well 20 states and Washington D.C. legalizing medicinal marijuana.
But Holder and the Department of Justice have given no public indication of the federal government's planned response to the state initiatives. Holder, testifying in the Senate in March, said he would reveal a policy "relatively soon." In the meantime, Colorado officials told TPM last week that they believe the delay amounts to "tacit approval" from the Justice Department to implement the marijuana laws....
Leahy has written the director of the Office of National Drug Control Policy about the issue, and questioned whether state officials who license marijuana retailers are risking prosecution for carrying out their duties.
"It is important, especially at a time of budget constraints, to determine whether it is the best use of federal resources to prosecute the personal or medicinal use of marijuana in states that have made such consumption legal," Leahy said in a written statement. "I believe that these state laws should be respected. At a minimum, there should be guidance about enforcement from the federal government."
Holder drew criticism from some medical marijuana advocates for a speech earlier this month concerning mandatory-minimum sentences, which are often in play in drug cases. Holder, in his remarks, did not get into the tension between state and federal marijuana laws.
The statement announcing Senator Leahy's plans for this hearing is available at this link from the Senator's website.
Might NYC save money sending folks to The Plaza instead of the pokey?The silly question in the title of this post was my first reaction to this recent piece in the New York Times headlined "City’s Annual Cost Per Inmate Is $168,000, Study Finds." Here are the pricey details:
New York City is an expensive place to live for just about everyone, including prisoners. The city paid $167,731 to feed, house and guard each inmate last year, according to a study the Independent Budget Office released [last] week.
“It is troubling in both human terms and financial terms,” Doug Turetsky, the chief of staff for the budget office, said on Friday. With 12,287 inmates shuffling through city jails last year, he said, “it is a significant cost to the city.”
Mr. Turetsky added that he was not aware of any previous studies that broke down the cost per inmate in the jails, but there have been national studies.
And by nearly any measure, New York City spends more than every other state or city. The Vera Institute of Justice released a study in 2012 that found the aggregate cost of prisons in 2010 in the 40 states that participated was $39 billion. The annual average taxpayer cost in these states was $31,286 per inmate.
New York State was the most expensive, with an average cost of $60,000 per prison inmate. The cost of incarcerating people in New York City’s jails is nearly three times as much.
Michael P. Jacobson, the director of the City University of New York Institute for State and Local Governance and a former city correction and probation commissioner, said part of the reason the city’s cost was so high was because it had a richly staffed system. “The inmate-to-staff ratio probably hovers around two prisoners for every guard,” he said. The budget office said 83 percent of the expense per prisoner came from wages, benefits for staff and pension costs.
Mr. Jacobson noted the success in bringing down the city’s jail population — from a peak of about 23,000 in 1993 to about 12,000 people today — but said the fixed costs were not likely to go down soon. Still, he said, there were things that could be done to save money, like reducing the amount of time people sat in jail awaiting trial. Some 76 percent of the inmates in the city were waiting for their cases to be disposed, according to the budget office.
In other words, New York City is spending, on average, nearly $450 per jail inmate per day. I know it costs more that this to get a room at The Plaza most times (not to mention the cost of room service), but I have to think some kind of group discount rate might be arranged. Jokes aside, these are really eye-popping numbers and now I better understand why the toll roads and bridges in NYC seem to go up a few more dollars every time I visit.
Terrific Stateline review of states' varied applications of and reactions to MillerMaggie Clark over at Stateline has this notable new article (and this amazing associated resource) reviewing all the diverse ways states are deal with the Supreme Court's Miller ruling. the piece is headlined "After Supreme Court Ruling, States Act on Juvenile Sentences," and here are excerpts:
Last year, the U.S. Supreme Court ruled in Miller v. Alabama that mandatory life sentences for offenders under 18 are cruel and unusual punishment, and therefore unconstitutional. In the wake of that decision, a federal court this month ruled that ... more than 300 other Michigan juvenile lifers are entitled to a parole hearing.
Michigan is one of at least 11 states that have revisited their sentencing laws in response to the Supreme Court decision (see Stateline chart). Generally, juvenile killers in those states will be eligible for a parole hearing after serving a mandatory minimum sentence of about 25 years.
Still, there are at least 15 states that have not yet eliminated mandatory life without parole sentences for juveniles. In many states, legislatures and courts aren’t sure how the Miller decision should apply to offenders such ... already serving such sentences. Nationwide, there are more than 2,000 prisoners in 43 states serving life without parole sentences for crimes they committed as juveniles....
[I]n Pennsylvania, which has largest number of inmates whose sentences are covered by the Supreme Court ruling, the state Supreme Court has been considering the retroactivity question for over a year. The court’s decision could lead to the resentencing and eventual release of over 400 convicted murderers.
In Michigan, Iowa, Illinois, Louisiana and Mississippi, judges have ruled that the Supreme Court decision applies retroactively to all prisoners serving such sentences. But in Minnesota and Florida, judges have ruled that the Supreme Court decision only applies to future cases.
State Supreme Courts in Illinois, Florida, Massachusetts and Colorado will likely consider the retroactivity question this fall, said Marsha Levick, chief counsel at the Juvenile Law Center, a legal advocacy group for youth....
The super-predator theory, popular in the early 1990s, predicted a wave of juvenile violent crime in the following decade. States reacted by treating many juvenile offenders as if they were adults. Between 1992 and 1995, 48 states increased penalties for juveniles convicted of violent crime, according to the Department of Justice. But that wave never came: Juvenile crime started to drop in the early 1990s, and it has continued to decline in the years since, as has adult crime.
The harsher juvenile sentencing laws likely were not a factor in the decline, since data show there was no difference in the crime rate for states with mandatory life without parole sentences and those without. Crime has declined nationwide, and across all demographics....
Considering youth as a mitigating factor is part of the Supreme Court’s broader move toward treating kids differently than adults. In two decisions banning the death penalty for juveniles for both homicide and non-homicide crimes, the justices relied heavily on neuroscience showing that brains are still growing and changing well through the teenage years, meaning that juveniles are likely to grow out of their criminal behavior, especially if they’re put in a rehabilitative setting.
Still, kids are committing adult crimes, and in these cases, victims’ families were promised life without parole sentences for their family member’s killer, said Joy Yearout, spokeswoman for Michigan Attorney General Bill Schuette. “Families were told that (the killers) would never be paroled, and that could have been 20 or 30 years ago,” Yearout said. “Now the families are being told that’s not true anymore and that’s very frightening. It’s very important to have truth in sentencing so that victims have assurance that the sentence will actually be what’s set.” Schuette has said he will appeal the Michigan federal court decision.
Most of the 11 states that have changed their laws to comply with Miller v. Alabama have either discouraged the use of life without parole sentences for juveniles, or scrapped them altogether.
But because the Supreme Court only struck down mandatory life without parole for juveniles, and not all such sentences, states are not required to completely overhaul their juvenile sentencing policies. In Alabama, where the Supreme Court case originated, the attorney general recently advised district attorneys to seek life with parole in two ongoing juvenile murder cases. The Alabama legislature has not yet approved any changes in mandatory sentencing laws to comply with the Supreme Court ruling.
August 26, 2013 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack (0)
Could "momentum for sentencing reform [now] be unstoppable" in the federal system?The question in the title of this post is prompted by a comment in the final paragraph of this lengthy new piece by Juan Williams appearing in The Hill. The piece is headlined "Amid gridlock, a surprising accord on drug-law sentencing," and here are excerpts (including the final paragraph):
Reporters missed a story earlier this month when Attorney General Eric Holder announced new guidelines for his federal prosecutors in handling non-violent drug crimes. Holder said President Obama plans to “reach out to members of Congress from both parties” to begin work on legislation to revise federal mandatory sentencing rules for people convicted of non-violent drug crimes....
In this era of deep political paralysis on Capitol Hill it should have been headline news that legislation revising sentencing guidelines for drug convicts is miraculously bringing together conservatives and liberals, even Tea Party conservatives and Obama....
Conservatives, including Republicans such as Texas Gov. Rick Perry, who regularly use tough rhetoric about punishing criminals, have already signed on to the essence of what Holder and Obama want to see in congressional legislation. Even hardline conservative lobbying groups seem to be on board: “It’s a step in the right direction, though about five years too late,” said Grover Norquist, president of Americans for Tax Reform, in an interview with Time magazine.
My Fox News colleague, former Arkansas Gov. Mike Huckabee, a strong conservative Republican, proclaimed on Twitter: “Finally found something I can agree with Eric Holder on — sentencing too many people to prison for non-violent drug crimes.”
The goal is to reduce the nation’s record prison population, now 40 percent over capacity. Conservatives as well as the president and attorney general are amazingly close to agreeing on the need to permanently revise thinking born during the crack epidemic of the 1980s that still has federal prosecutors asking for heavy mandatory sentences in 60 percent of cases involving any kind of illegal drugs....
Durbin and Lee, Democrat and Republican, have introduced a bill — “The Smarter Sentencing Act” — to revise the fixed sentencing guidelines for non-violent drug offenders. Leahy and Paul, another pairing across political lines, have introduced a similar bill — the “Justice Safety Valve Act of 2013” — which gives judges more discretion to break away from the current mandatory sentencing guidelines. This bill has already won bipartisan House endorsements.
After Holder’s speech, Paul seemed to indicate the administration is following his conservative, libertarian lead in wrapping its arms around the idea of reducing prison sentences and cutting the cost that comes with housing so many prisoners. “I am encouraged that the president and the attorney general agree with me that mandatory minimum sentences for non-violent offenders promote injustice and do not serve public safety,” Paul said.
In fact, Paul’s home state, Kentucky, as well as other GOP strongholds, including Arkansas and Texas, have already put in place programs to explore the impact of lesser drug sentences. In Kentucky, as Holder told the ABA, the prison population is being reduced by an estimated 3,000 inmates over the next decade, which will net savings of $400 million. Texas, Holder said, has reduced its prison population by 5,000 in the last year with new approaches to drug treatment and parole. Arkansas cut 1400 prisoners with a similar plan. “Clearly these strategies work,” Holder said. “They’ve attracted overwhelming, bipartisan support in ‘red states’ as well as ‘blue states.’ And it is past time for others to take notice.”
Jennifer Palmieri, the White House communications director, confirmed to me Holder’s announcement that the president’s fall agenda will include meeting “with folks in Congress who are pursuing legislation as well as governors and mayors who have done innovative work on this issue.”
The president’s personal attention to the issue could spark some conservative opposition because of their personal antipathy to him. But with existing support for the idea among Republicans on the Hill and in statehouses nationwide there is also a chance that a White House push on sentencing reform will raise public awareness, generate public support and gain the votes in Congress needed to enact potentially historic changes to 1980s sentencing laws that came out of the “War on Drugs.”
With the president and a line-up of his usual antagonists behind the same bill, the momentum for sentencing reform could be unstoppable. The result will be one of the biggest surprises of all the years of the Obama presidency — a bipartisan success in passing new laws to reduce the nation’s prison population.
Gosh knows I sure hope there might now be unstoppable momentum to get the Smarter Sentencing Act and/or the Justice Safety Valve Act passed in the next few months. Indeed, right after AG Holder's big speech (which did, I think, make a few headlines), I advocated in this op-ed for the Los Angeles Times that AG Holder and his boss do everything possible ASAP to turn this reform talk and momentum into legal changes. But the history of advocacy for federal crack sentencing reform, as well as the aftermath of the FSA, always bring me back to the real-world reality that big talk about sentencing reform is always a lot easier and a lot more common than big action.
Some old and newer related posts about AG Holder's speech and the "new politics" of sentencing reform:
- "With Holder In The Lead, Sentencing Reform Gains Momentum"
- Some sentencing-related highlights from AG Holder's remarks today to the ABA
- Lots of (mostly positive) reactions to AG Holder's big sentencing speech
- Notable inside-the-Beltway discussion of modern sentencing politics
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- "Conservatives latch onto prison reform"
- NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)
- "Prison-Sentence Reform: A bill to give judges flexibility to impose shorter sentences deserves conservatives’ support."
- Wall Street Journal pitch for the Prez to get behind the Justice Safety Valve Act of 2013
- Justice Safety Valve Act gets bipartisan introduction in House of Representatives
- "Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Another notable GOP member of Congress advocating for federal sentencing reform
- "As Prisons Squeeze Budgets, GOP Rethinks Crime Focus"
- Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?
August 26, 2013 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack (0)
Sunday, August 25, 2013
"Fifty years ago this month, a young man and an older man sat down and began to plot the end of the death penalty in America."
The title of this post is the first sentence of this interesting piece by Jesse Wegman appearing in the Review section of today's New York Times under the headline "The Death Memo." Here are more excerpts from what follows:
It was an audacious idea at the time — capital punishment was right there in the Constitution, the Supreme Court had no problem with it, and public opinion remained strongly in its favor.
But to many people, the summer of 1963 represented a new world, one alive with dreams of fairness and equality. That August, across the Mall from the Lincoln Memorial, Supreme Court Justice Arthur Goldberg, a strong opponent of capital punishment, charged his 24-year-old law clerk, Alan Dershowitz, to develop the most compelling legal argument that the death penalty violated the Constitution.
“He said, ‘Don’t find me mass murderers, don’t find me serial killers,’” Mr. Dershowitz, the well-known defense lawyer, recalled recently. Mr. Dershowitz’s resulting memo, described in Evan Mandery’s excellent new book, “A Wild Justice: The Death and Resurrection of Capital Punishment in America,” drew particular attention to racial disparities in the death penalty’s application. Justice Goldberg was impressed, and he worked the memo into a dissent. But so as not to scare off his colleagues, he removed almost every reference to race.
Fifty years later, the death penalty lives on. The Supreme Court suspended it in 1972, holding that the arbitrariness of its application constituted cruel and unusual punishment. In 1976 the court reinstated it. More than 1,300 people have been executed since, but the rate has fallen over the last decade.
Some justices have categorically opposed capital punishment, like William Brennan Jr. and Thurgood Marshall. Others have maintained it is indisputably constitutional, like Antonin Scalia and Clarence Thomas. But as Mr. Mandery notes, three justices who voted to reinstate it later changed their minds.... These justices, more than those with unwavering positions, may serve as a metaphor for tracking our “evolving standards of decency.”
Arthur Goldberg died in 1990. Mr. Dershowitz, whom he liked to call his clerk for life, remembered one of their final conversations. “I said to him, ‘You’re Moses and you haven’t been given the right to cross over to Israel. You’re going to die on Mount Nebo.’ But I promised him in my lifetime we’d see the end of what he did.”
So how will it end? “It’s going to happen the way things always happen at the court,” Mr. Dershowitz said. “The court will appear to be leading, but it will be following.”
Saturday, August 24, 2013
AG Holder's speech at "Dream March" stresses fairness and "equal justice" (... as federal crack prisoners keep waiting)I just got an e-mail providing this link to the text of Attorney General Eric Holder's prepared remarks which he delivered today in Washington DC as part of the "National Action to Realize the Dream March." Here are some excerpts that caught my eye (with my emphasis added):
It is an honor to be here — among so many friends, distinguished civil rights leaders, Members of Congress, and fellow citizens who have fought, rallied, and organized — from the streets of this nation, to the halls of our Capitol — to advance the cause of justice.
Fifty years ago, Dr. King shared his dream with the world and described his vision for a society that offered, and delivered, the promise of equal justice under law. He assured his fellow citizens that this goal was within reach — so long as they kept faith with one another, and maintained the courage and commitment to work toward it. And he urged them to do just that. By calling for no more — and no less — than equal justice. By standing up for the civil rights to which everyone is entitled. And by speaking out — in the face of hatred and violence, in defiance of those who sought to turn them back with fire hoses, bullets, and bombs — for the dignity of a promise kept; the honor of a right redeemed; and the pursuit of a sacred truth that’s been woven through our history since this country’s earliest days: that all are created equal....
But today's observance is about far more than reflecting on our past. Today’s March is also about committing to shape the future we will share — a future that preserves the progress, and builds on the achievements, that have led us to this moment. Today, we look to the work that remains unfinished, and make note of our nation's shortcomings, not because we wish to dwell on imperfection — but because, as those who came before us, we love this great country. We want this nation to be all that it was designed to be — and all that it can become. We recognize that we are forever bound to one another and that we stand united by the work that lies ahead — and by the journey that still stretches before us.
This morning, we affirm that this struggle must, and will, go on in the cause of our nation’s quest for justice — until every eligible American has the chance to exercise his or her right to vote, unencumbered by discriminatory or unneeded procedures, rules, or practices. It must go on until our criminal justice system can ensure that all are treated equally and fairly in the eyes of the law. And it must go on until every action we take reflects our values and that which is best about us. It must go on until those now living, and generations yet to be born, can be assured the rights and opportunities that have been too long denied to too many.
The America envisioned at this site 50 years ago — the “beloved community” — has not yet been realized. But half a century after the March, and 150 years after Emancipation, it is finally within our grasp. Together — through determined effort; through a willingness to confront corrosive forces tied to special interests rather than the common good; and through devotion to our founding documents — I know that, in the 21st century, we will see an America that is more perfect and more fair....
To AG Holder's credit, back in April 2009, his Justice Department went to Capitol Hill to tell Congress that the current Administration then believed (and still believes?) that a commitment to fairness and equal justice required completely eliminating the differential treatment of crack and powder cocaine in federal sentencing law. But since that time, the Obama Administration has suggested it is content with Congress's decision to merely reduce — from 100-1 to 18-1 — the differential treatment of drug quantities for crack and powder. Moreover, this Administration has made no real effort to help those sentenced before the passage of the Fair Sentencing Act to get any fair or equal benefits from the new law's reduced crack sentencing terms.
Indeed, from its initial advocacy to limit "pipeline" cases from getting the benefit of the FSA's reduced mandatory minimums, to its continued disinclination to seek to help folks still serving excessively long sentences based on the pre-FSA 100-1 crack laws, the Holder Justice Department's actions suggest they do not really think a commitment to fairness and equal justice calls for doing much of anything to help crack offenders sentenced before August 2013.
Please understand that I know full well the range of forcefully legal arguments and political considerations which can be made to justify preventing thousands of federal prisoners still serving excessively long crack sentences from getting any benefits from the FSA. But I also know full well that if Dr. King were alive today, he surely would be advocating forcefully for this Administration to live up to its commitment to fairness and equal justice and to do something to help those federal prisoners still languishing in prison based on the unfair and unequal sentences required by the pre-FSA crack laws.
Indeed, with current federal prisoners in mind, I think we still are awaiting the day that Dr. King dreamed of and spoke about when he ended his speech in this way:
[I dream of] the day when all of God's children will be able to sing with a new meaning, "My country, 'tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim's pride, from every mountainside, let freedom ring."
And if America is to be a great nation this must become true. So let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania!
Let freedom ring from the snowcapped Rockies of Colorado! Let freedom ring from the curvaceous slopes of California!
But not only that; let freedom ring from Stone Mountain of Georgia! Let freedom ring from Lookout Mountain of Tennessee!
Let freedom ring from every hill and molehill of Mississippi. From every mountainside, let freedom ring.
And when this happens, when we allow freedom to ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, "Free at last! free at last! thank God Almighty, we are free at last!"
I suppose we all need to just keep dreaming, while still stressing the "fierce urgency of now."
August 24, 2013 in New crack statute and the FSA's impact, New USSC crack guidelines and report, Offense Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (32) | TrackBack (0)
Debate continues after Mizzou Gov vetoes bill to take juve sex offenders off registriesAs reported in this AP piece, headlined "Vetoed bill could affect 870 Mo. sex offenders," the Show Me state is showing all of us how a focused debate over juvenile sex offenders can play out these days. Here are the basics:
A Missouri bill removing the names of juvenile sex offenders from public registries could affect hundreds more people than originally estimated and help hide the whereabouts of some high-profile offenders, Gov. Jay Nixon said Wednesday.
The Democratic governor pointed to new figures and specific examples of sex-offenders as he traveled to St. Louis and Kansas City to try to build a case for why legislators should sustain his veto of the bill.... Republican legislative leaders have said the measure is a likely target for a veto override, noting that it passed originally with overwhelmingly support.
Under the bill, people who are younger than 18 when they commit sex offenses would no longer appear on law enforcement websites that list the home addresses and physical description of sex offenders. Adults who are currently listed because of sex offenses committed as juveniles also could be removed from the public registry five years after their convictions or release from prison.
Supporters of the bill have said the public registries leave a permanent mark on adults who may have been convicted as teenagers for consensual sexual activities with younger juveniles. They have said such people deserve a second chance outside of the public spotlight.
The bill passed the House 153-0 and the Senate 28-4 earlier this year. Nixon has said the legislation would weaken state laws and undermine public safety....
"The leadership of the House may be ready to help violent sex offenders hide from the public and law enforcement, but their victims, and the millions of Missourians who use these websites to help keep their families safe, are not," Nixon said.
The governor's office distributed information about specific sex offenders who could be removed from the list if lawmakers were to override his veto. Among them is Daniel Winfrey, who was 15-years-old in April 1991, when sisters Julie and Robin Kerry were raped and killed at the Chain of Rocks Bridge over the Mississippi River in the St. Louis area. Winfrey pleaded guilty to second-degree murder and rape after agreeing to testify against several others involved in the crime.
Other offenders that the governor's office cited as likely to be removed from the public registry included men who had been convicted as juveniles of rape, sexual assault and sodomy against children who were ages 5, 6, 7 and 8.
Nixon spokesman Scott Holste said the legislation would benefit people who committed "heinous" acts. "These aren't Romeo and Juliet people we're talking about here," Holste said.
A week for lots of notable military sentencing headlines
Three high-profile cases involving military crimes and prosecutions all included notable sentencing developments this week. Here are examples of the headlines (with the stories linked):
And if you want all the highlights of these three stories via one link, check out this new posting via the Washington Post, headlined " Robert Bales, Nidal Malik Hasan, Manning: A busy week for military justice."
Friday, August 23, 2013
"Vice Crimes and Preventive Justice"The title of this post is the title of this notable new paper by Stuart Green now available via SSRN. Especially as I spend this semester discussing prohibition of various substances in my conjunction with teaching a marijuana law seminar (and working on this related blog), I am definitely adding this piece to my weekend reading list. Here is the abstract:
This symposium contribution offers a reconsideration of a range of "vice crime" legislation from late 19th and early 20th century American law, involving matters such as prostitution, the use of opiates, illegal gambling, and polygamy. According to the standard account, the original justification for these offenses was purely moralistic (in the sense that they criminalize conduct solely or primarily because it is intrinsically wrong or sinful and not because of its negative effect on anyone) and paternalistic (in the sense that they limit persons' liberty or autonomy supposedly for their own good); and it was only later, in the late 20th century, that those who supported such legislative initiatives sought to justify them in terms of their ability to prevent harms.
This piece argues that the rationale for these vice crimes laws was much more complicated than has traditionally been thought, encompassing not just moralistic justifications but also a wide range of harm-based rationales -- similar to those that underlie modern, technocratic, "preventive justice" legislation involving matters such as anti-social behavior orders, sex offender registration, stop-and-frisk policing, and the fight against terrorism.
Thursday, August 22, 2013
Eleventh Circuit finds way-below guideline sentence substantively unreasonable for abusive corrections officersI have long hoped that reasonableness review would have some more teeth in the circuits, and a panel ruling by the Eleventh Circuit today in US v. McQueen, No. 12-10840 (11th Cir. Aug. 22, 2013) (available here), provides a reminder that reasonableness review does seem to have at least a little more bite when prosecutors appeal a sentence they consider way too low. Here are the final paragraphs of the panel opinion in McQueen:
[T]aking the § 3553(a) factors as a whole as well as the district court’s findings, we can only conclude that McQueen’s and Dawkins’s sentences were substantively unreasonable and that the district court abused its considerable discretion in imposing them. Undoubtedly, a district court has great discretion in balancing the § 3553(a) factors. Still, it must afford “some weight to the factors in a manner that is at least loosely commensurate with their importance to the case, and in a way that ‘achieve[s] the purposes of sentencing stated in § 3553(a).’” Id. (alteration in original) (quoting United States v. Martin, 455 F.3d 1227, 1237 (11th Cir. 2006)). If a district court instead commits a clear error of judgment in weighing the sentencing factors and arrives at a sentence beyond the range of reasonable sentences, we are duty bound to vacate and remand for resenten cing. United States v. McBride, 511 F.3d 1293, 1297-98 (11th Cir. 2007) (per curiam). As we see it, the trial court focused virtually exclusively on one factor -- unwarranted disparities -- to the near abandonment of other critical factors and arrived at sentences falling profoundly outside the range of reasonable sentences.
Accordingly, we vacate the sentences imposed on McQueen and Dawkins and remand to the district court for further review and resentencing. In so doing we do not suggest what the sentence should be; nor do we intimate that no variance is justified. We simply hold that downward variances of more than 90% where one corrections officer brutalized more than five young prisoners and then lied about it, and another intentionally sought to conceal these serious crimes are unreasonable.
New York Times editorial board rightly highlights "Pardon Rates Remain Low"I was pleased to see this morning that the New York Times has this new editorial discussing clemency issues under the headline " "Pardon Rates Remain Low." Here are excerpts:
Attorney General Eric Holder said many encouraging things in his important speech on the future of sentencing reform, but the most striking thing may have been what he did not say. In all his 4,000 words on America’s “broken” legal system — and particularly on its outlandishly harsh and ineffective sentencing laws — there was not one mention of executive clemency.
That power, which the Constitution explicitly grants to the president, has always served as an indispensable check on the injustices of the legal system and as a means of demonstrating forgiveness where it is called for. It was once used freely; presidents issued more than 10,000 grants of clemency between 1885 and 1930 alone. But mercy is a four-letter word in an era when politicians have competed to see who can be toughest on crime....
As ProPublica has documented, the pardon process has devolved into a mockery of itself, riven by arbitrariness, racial disparity and charges of abuse. Pardons of powerful, well-connected individuals like Marc Rich, by Bill Clinton, and Lewis Libby, by George W. Bush, have only increased cynicism about the process.
Meanwhile, President Obama’s use of the pardon power remains historically low. In four and a half years, he has received almost 10,000 applications for clemency and has granted just 39 pardons and one sentence commutation. No one seems to know why some requests are granted and others denied. To call it a lottery is unfair to lotteries; at least if you pick the right numbers, you’re guaranteed to win....
As the experience of many states shows, a functional pardon system must also be accountable. This can mean requiring the executive to publish an annual report on pardon policy and practice. Currently the president has no obligation to explain his grants or denials, which undermines public trust in the system.
In this light it is disheartening that the Obama administration continues to resist calls to remove the current head of the pardon office, Ronald L. Rodgers, despite a finding by the Justice Department’s inspector general that in 2008, Mr. Rodgers misrepresented material information in recommending that the president deny a petition for clemency.
In a 2003 speech, Justice Anthony Kennedy said that “a people confident in its laws and institutions should not be ashamed of mercy.” In the 10 years since that speech, requests for mercy have increased even as the prospects for reform have not. In the first 10 months of fiscal 2013, 2,000 inmates applied for commutations, more than in any single year in history.
Executive clemency may not be the ideal way to ameliorate the system’s excesses, but for many people stuck with an unjustly long sentence or a conviction that prevents them from getting jobs, business licenses or even public housing, it remains the only way....
Mr. Holder was right to call for a substantial overhaul of our criminal justice system. But any meaningful reform must include the clemency process, by which we temper our most punitive tendencies. It is long past time for the president to heed the words of Justice Kennedy and reinvigorate this fundamental executive prerogative.
Kudos to the New York Times editorial board for giving this issue significant attention in the wake of AG Holder's speech (and for the great line "[t]o call it a lottery is unfair to lotteries...."). The Obama Administration's record on this issue is truly abysmal, especially given that President Obama rode into the White House in 2008 by stressing the themes of hope and change into the White House.
Especially disconcerting is Obama's failure to date to use his clemency powers (or really to do anything of significance) to help the many thousands of low-level crack offenders still serving (now-repealed) severe mandatory minimum prison sentences based on the old 100-1 crack/powder sentencing ratio. Back in 2007 on the campaign trail in his speech to Howard Univesity (as I discussed in this 2010 law review article), then-candidate Barack Obama had this to say about those federal prisoners:
When I'm President, we will no longer accept the false choice between being tough on crime and vigilant in our pursuit of justice.... We can have a crime policy that's both tough and smart. If you're convicted of a crime involving drugs, of course you should be punished. But let's not make the punishment for crack cocaine that much more severe than the punishment for powder cocaine when the real difference between the two is the skin color of the people using them. Judges think that's wrong. Republicans think that's wrong. Democrats think that's wrong, and yet it's been approved by Republican and Democratic Presidents because no one has been willing to brave the politics and make it right. That will end when I am President.
Though I suppose President Obama deserves some credit for the passage of the Fair Sentencing Act, even the revised federal penalties under that law with its new 18-1 ratio still mean that "the punishment for crack cocaine [is] much more severe than the punishment for powder cocaine." And, more to the point of this post, the only reason I can surmise to explain why President Obama has not been willing to grant commutations to some significant number of the thousands of prisonder serving sentences that judges and Republicans and Democrats all think are wrong is because President Obama even in his second term is still , in fact, NOT "willing to brave the politics and make it right."
I know that there are at least 2000 federal prisoners who applied for clemency just this last year who continue to reasonably hope that President Barack Obama remembers that his clemency powers provide one of the very best ways for him to be "vigilant in our pursuit of justice." But, as the NY Times highlights, in this arena many now have been hoping for nearly five years to see any real change.
Some recent and a few older posts concerning federal clemency practices:
- "How to Awaken the Pardon Power"
- New Slate pitch for Prez to use clemency powers to address crack sentencing disparities
- "Clemency Reform: We're Still Waiting"
- "Clemency for the 21st Century: A Systemic Reform of the Federal Clemency Process"
- Will Prez Obama's clemency record ever match his inaugural rhetoric?
- "Why Has Obama Pardoned So Few Prisoners?"
- "Barack the Unmerciful: Obama's amazingly stingy clemency record"
- New York Times editorial assails Prez Obama's considerable clemency failings
- "Obama Has Granted Clemency More Rarely Than Any Modern President"
- Updated numbers on President Obama's disgraceful clemency record
- Noting President Obama's (still) stingy clemency record
- ProPublica reveals more ugliness in federal clemency process
- "A no-pardon Justice Department"
- Effective USA Today coverage of President Obama's clemency stinginess
- "Obama should exercise the pardon power"
- NYTimes op-ed assailing Obama's pathetic pardon practices
Making a potent argument for executions by firing squad rather than lethal injectionRobert Blecker, responding in part to the seemingly endless litigation and problems surrounding lethal injection execution protocols, has this new provocative CNN commentary under the headline "With death penalty, let punishment truly fit the crime." The full piece is a must-read, and here are excerpts highlighting why:
No matter how vicious the crime, no matter how vile the criminal, some death penalty opponents feel certain that nobody can ever deserve to die -- even if that person burned children alive, massacred a dozen strangers in a movie theater, or bombed the Boston Marathon. Other opponents admit the worst of the worst of the worst do deserve to die. They just distrust the government ever to get it right.
Now that pharmaceutical companies refuse to supply the lethal drugs that U.S. corrections departments have used for years to execute criminals -- whether from their own genuine moral objections or to escape a threatened economic boycott -- states have begun to experiment. Death penalty opponents, who call themselves abolitionists, then protest the use of these untried drugs that just might cause a condemned killer to feel pain as he dies.
Let the punishment fit the crime. We've mouthed that credo for centuries, but do we really mean it? We retributivists who believe in justice would reward those who bring us pleasure, but punish severely those who sadistically or wantonly cause us pain. A basic retributive measure -- like for like or giving a person a taste of his own medicine -- satisfies our deepest instincts for justice.
When the condemned killer intentionally tortured helpless victims, how better to preserve some direct connection short of torture than by that murderer's quick but painful death? By ensuring death through anesthesia, however, we have nearly severed pain from punishment....
I, too, oppose lethal injection, but not because these untried new drugs might arbitrarily cause pain, but because they certainly cause confusion.
Lethal injection conflates punishment with medicine. The condemned dies in a gurney, wrapped in white sheets with an IV in his veins, surrounded by his closest kin, monitored by sophisticated medical devices. Haphazardly conceived and hastily designed, lethal injection appears, feels, and seems medical, although its sole purpose is to kill....
Publicly opposing this method of execution, I have found odd common ground with Deborah Denno, a leading abolitionist scholar who relentlessly attacks lethal injection protocols. Although Denno vigorously opposes all capital punishment, we both agree that the firing squad, among all traditional methods, probably serves us best. It does not sugarcoat, it does not pretend, it does not shamefully obscure what we do. We kill them, intentionally, because they deserve it.
Some people may support the firing squad because it allows us to put blanks in one of the guns: An individual sharpshooter will never know whether he actually killed the condemned. This strikes me as just another symptom of our avoidance of responsibility for punishment. The fact is, in this society, nobody takes responsibility for punishing criminals. Corrections officers point to judges, while judges point to legislators, and legislators to corrections. Anger and responsibility seem to lie everywhere elsewhere -- that is, nowhere. And where we cannot fully escape responsibility -- as with a firing squad -- we diffuse it....
Ironically, even as we recoil from punishing those who most deserve it, we readily over-punish those who don't. A "war on drugs" swells our prisons. We punish addiction and call it crime; we indiscriminately and immorally subject a burglar or car thief to the same daily life in prison we also reserve for rapist murderers.
The time has come to make punishment more nearly fit the crime. To face what we do, and acknowledge, with regret but without shame, that the past counts.
So part of me hopes the abolitionists succeed with their latest campaign against death by lethal injection. We should banish this method. Let the abolitionists threaten to boycott gun manufacturers. See where that gets them. Meanwhile, the rest of us will strive to keep our covenants with victims, restore a moral balance, and shoot to kill those who deserve to die.
Rest assured, when we can only achieve justice by killing a vicious killer, We, the People will find a constitutional way to do it.
Wednesday, August 21, 2013
ABA Criminal Justice Section Call for Papers and ConferenceUpon request, I am pleased to be able to share this announcement sent my way by Dr. William W. Berry III:
On Oct. 31-Nov. 1, 2013, the ABA criminal justice section will host its annual conference, this year at the Omni Shoreham in Washington, D.C. The first event of the conference, on the afternoon of Thursday, Oct. 31, is a workshop for scholarly papers relating to criminal justice. The workshop will run from 1-4 p.m.
All papers on criminal law, criminal procedure, or criminal justice topics are welcome. Participants will present their work in a roundtable format, and abstracts or drafts will be shared among presenters and discussants in advance of the workshop. Workshop presenters must also attend the criminal justice panels on Friday, Nov. 1. There will be three academic panels scheduled on Friday, one prior to lunch and two in the afternoon.
This is an excellent opportunity for academics at any stage of their careers, or those who would like to transition to academia, to workshop pieces at an early stage of development or obtain feedback on more developed pieces. Workshop presenters will be responsible for their own travel and hotel costs, and will be required to pay the conference registration fee.
Rooms at the Omni Shoreham are available at the conference rate of $169/night and can be reserved at 1-800-THE-OMNI (800/843-6664) (ask for the ABA 2013 Criminal Justice Section Fall Program).
To apply to workshop a paper, please email an abstract of your paper of no more than 500 words to Will Berry at firstname.lastname@example.org by Sept. 1, 2013. Space is limited and presenters will be chosen by members of the organizing committee.
Please spread the word to those who might be interested, including those not yet in academia.
"It's Not Just Federal Prisons: State Prisons Are a Mess, Too"The title of this post is the headline of this notable new National Journal piece. Here are excerpts:
In Arkansas, there aren't enough prison beds for all the inmates. Tasked with housing 14,753 people, the state's prisons have fallen around 280 beds short, with 1,400 state inmates being held in county jails as of Monday. Arkansas's state prison director told the corrections board that there are 300 beds ready for use, but it would cost $8 million to hire new employees and run the new facilities.
Arkansas isn't the only state with a bed problem: Arizona has been relying on temporary beds to make up for only having 37,000 beds for 41,000 inmates.
When U.S. Attorney General Eric Holder spoke to the American Bar Association about the economic and moral costs of the U.S. criminal justice system last week, he was mainly talking about federal prisons. But prisons at the state and local level aren't in any better shape....
If you need more proof of how bleak things are, just look at some of what's happened in the last few weeks.
On July 8, a hunger strike broke out in California prisons over a policy that allowed inmates associated with gangs to live in isolation for long periods of time.... When the strike began, it included almost 30,000 of the state's 133,000 inmates. That number is down to around 130. On Monday, a federal judge ruled that California will be able to force-feed the remaining strikers.
California's prison problem is also fundamentally economic. In May, a judge ordered California to reduce its inmate population by 9,600 to prevent overcrowding. California unsuccessfully appealed the ruling to the Supreme Court. Gov. Jerry Brown on Monday said that California wouldn't "do a mass release" and a spokesman said the administration is "working with the Legislature to avoid the prospect of inmate releases." That could mean spending hundreds of millions of dollars to stem overcrowding. But even just releasing prisoners can come at a huge cost. According to the LAPD, it costs about $18 million to keep track of felons who are released from state prisons to the counties, and more than half of the thousands who are already released annually are eventually sent back to prison.
Then there's the violence. Five prisons have been placed on lockdown in Illinois in the last week for unrelated incidents after a wave of violence. That includes violence against prison guards. Then there's the rise in suicides. In Washington, D.C., there have been four suicides at the Central Detention Facility in less than a year. In the last decade, there have only been eight suicides total at that facility. A Bureau of Justice Statistics report released this month shows a recent uptick in suicides at local prisons.
Renewing focus on federal prisons is a start, but it doesn't totally address all of the problems in the U.S. criminal justice system.
New op-ed from former federal judges Paul Cassell and Nancy Gertner lament defender cutsAnother notable set of voices appears in this new Wall Street Journal commentary headlined "Public Defenders Fall to the Sequester: Steep budget cuts compromise the justice system and won't save money in the long run." The piece is co-authored by two of my favorite former federal district judges, Paul Cassell and Nancy Gertner, and here are excerpts:
[D]ue to the combination of general budget austerity and sequestration, the federal public defender system — a model of effective indigent defense for the past 40 years — is being decimated. As former federal judges from opposite ends of the ideological spectrum, we both understand that these shortsighted cuts threaten not only to cripple the federal defender system, but to disrupt the entire federal judiciary—without producing the promised cost savings.
A decrease of nearly 10% in the federal public defender budget for 2013 has already resulted in layoffs and up to 20 days of furloughs in many federal defender offices. In a number of states, federal courts have been forced to delay criminal cases because of public defender furloughs and layoffs....
These steep budget cuts will not save us money in the long term. Delays in trials require many defendants to spend more time in costly pretrial detention facilities. But the flow of criminal prosecutions has not abated, so the unavailability of public defenders will simply force courts to engage private attorneys more frequently. Most federal judicial districts have a public defender office and, in those districts, it is more cost effective to have the office handle a majority of cases.
Reducing funding for federal defender budgets means that the remaining federal defenders have less time and fewer resources with which to investigate cases, conduct legal research and hire expert witnesses. This loss severely compromises their ability to represent their client at trial, destroying the adversarial process at the heart of our system. Without balanced, vigorously litigated cases, wrongful convictions may become more common, imprisoning the innocent and allowing the guilty to walk free.
These mistakes — inevitable in an underfunded system — will create even more expenses down the line, through appeals, unlawful-detention proceedings and retrials. As Supreme Court Justice Stephen Breyer noted in March in congressional testimony about the effects in general of the sequester, it is "cheaper to have a decent lawyer in the first place."...
As Congress works to reach agreement on spending for next year, its members must know that proceeding with steep cuts to the federal defenders not only threatens to undermine justice, but is bad fiscal policy.
Only with full funding of federal defenders will we avoid the ripple effect that will clog judicial dockets, delay both criminal and civil proceedings in federal courts—and undermine the efficiency of a federal defender system that has effectively served justice for the past 40 years.
Recent related posts:
- Should anyone eager to see federal criminal justice reform be rooting FOR the sequester?
- "Sequestration Will Wreak Chaos On U.S. Federal Prisons"
- Smarter Sequestration: simple statutory ways to save prison monies (and avoid federal furloughs?)
- "How the Sequester Threatens the U.S. Legal System"
- "Can Constitutional Rights Be Sequestered?"
- Sequester now requiring still more foolish cuts to federal criminal justice services
Bradley Manning gets 35 years from military judge for espionage convictionsAs reported in this breaking news update from USA Today, "Army Pfc. Bradley Manning was sentenced to 35 years in prison after being convicted of espionage and other charges in connection with a massive leak of classified material." Here is more:
The judge in the case, Army Col. Denise Lind, announced the sentence in a military courtroom in Fort Meade, Md. He also received a dishonorable discharge, will forfeit his pay and benefits and was reduced in rank.
Manning faced a maximum of 90 years in prison after his conviction last month on charges of espionage, theft and fraud. Manning was convicted of the largest leak of classified material in U.S. history and was at the center of a growing debate over government secrecy.
Prosecutors urged the judge to sentence Manning to 60 years as a deterrent to others who might be tempted to leak secret documents. "He betrayed the United States, and for that betrayal, he deserves to spend the majority of his remaining life in confinement," Capt. Joe Morrow had said during the sentencing hearing.
Manning's defense had urged the military to sentence Manning, who served as an intelligence analyst in Iraq, to no more than 25 years in prison....
The U.S. government said his actions jeopardized U.S. interests and exposed informants and sources to danger. Manning's defense painted him as a misguided idealist who opposed the war in Iraq. "He had pure intentions at the time that he committed his offenses," defense attorney David Coombs said during the sentencing hearing. "At that time, Pfc. Manning really, truly, genuinely believed that this information could make a difference."
Manning's defense attempted to "play up the human aspect" of Manning by highlighting mental health issues, said Phil Cave, a former military lawyer now in private practice. Defense witnesses testified about Manning's "gender-identity disorder," which contributed to the mental stress he was under....
Under military law, the sentence will be automatically appealed. He would probably be eligible for parole after he served one-third or 10 years of his sentence, whichever is longer.
I have blogged very little about this high-profile sentencing case in large part because I am very ignorant about US military sentencing law and procedure. For example, I did not realize that parole remained available for lengthy military sentences (given that federal civilian law eliminated parole from the sentencing system three decades ago), nor am I conversant on what formal rules or guidelines may have impacted the seemingly broad sentencing discretion of Army Col. Denise Lind or could still play a role in the automatic appeal provided by military law.
Both due to my basic ignorance and due to the high-profile nature of this case, I welcome both informed and uninformed opinions on this sentencing outcome. Do folks think 35 years in prison (with parole eligibility in less than 12 years when Manning will still be in his mid-30s) is a fair and effective sentence in this case? Why or why not?
August 21, 2013 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (21) | TrackBack (0)
Tuesday, August 20, 2013
"North Carolina appeals court strikes social media ban for sex offenders"
The title of this post is the headline of this local press report on a notable intermediate state appeals court ruling today. Here are the details:
The full 21-page opinion in NC v. Packingham, No. 10 CRS 57148 (N.C. App Aug. 20, 2013), is available at this link.
The North Carolina Court of Appeals on Tuesday struck down North Carolina's ban on registered sex offenders using social media sites like Facebook and Twitter. The court said the ban in N.C. General Statute 14-202.5 "is not narrowly tailored, is vague, and fails to target the 'evil' it is intended to rectify."
"The statute violates the First Amendment's guarantee of free speech, and it is unconstitutional on its face and as applied. Accordingly, we vacate the trial court's judgment," wrote the court.
The ruling centered around a Durham case in which Lester Gerard Packingham appealed his felony conviction for accessing a commercial networking site last year. According to the trial records, the Durham Police Department was looking at evidence that registered sex offenders were using the websites MySpace and Facebook, and an officer recognized Packingham's photo on Facebook.
The North Carolina law says registered sex offenders may not use commercial social media sites if they know the site "permits minor children to become members or to create or maintain personal Web pages."
But in its ruling, the appeals court said the law "arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal [of preventing contact with children.]"
North Carolina Attorney General Roy Cooper wanted the law but admits it may have to be rewritten, but he will try to appeal the North Carolina Supreme Court. Cooper notes that there are still laws on the books that investigators can use to charge suspects with soliciting children online. However, he believes we need a law to try to prevent child sex crimes before they happen....
If Cooper's attempt at an appeal fails, he says he will go back to the legislature to see if they can craft a new sex offender social media law that will withstand a legal challenge.
US District Judge Bennett documents prosecutor-created disparity from § 851 enhancements in yet another potent opinionLong-time readers know that big federal sentencing news can often come from the heartland in the form of potent lengthy opinions by US District Judge Mark Bennett. His latest important sentencing work, which a number of helpful readers have made sure I would not miss, comes in US v. Young, No. 5:12-cr-04107 (D. Iowa Aug. 16, 2013) (available for download below). I could say much about so many notable passages in this 75-page Young opinion (which includes 20+ pages of data-rich appendices at the end), but I will be content to let the first few paragraph highlight why this opinion is a must-read for all who follow the federal sentencing system:
This case presents a deeply disturbing, yet often replayed, shocking, dirty little secret of federal sentencing: the stunningly arbitrary application by the Department of Justice (DOJ) of § 851 drug sentencing enhancements. These enhancements, at a minimum, double a drug defendant’s mandatory minimum sentence and may also raise the maximum possible sentence, for example, from forty years to life. They are possible any time a drug defendant, facing a mandatory minimum sentence in federal court, has a prior qualifying drug conviction in state or federal court (even some state court misdemeanor convictions count), no matter how old that conviction is.
Recent statistics obtained from the U.S. Sentencing Commission (Commission) — the only known data that exists on the eligibility and applications of the DOJ’s § 851 decision making — reveal jaw-dropping, shocking disparity. For example, a defendant in the Northern District of Iowa (N.D. of Iowa) who is eligible for a § 851 enhancement is 2,532% more likely to receive it than a similarly eligible defendant in the bordering District of Nebraska. Equally problematic is that, at least prior to August 12, 2013, decisions to apply or waive § 851 enhancements were made in the absence of any national policy, and they are still solely within the unreviewed discretion of the DOJ without any requirement that the basis for the decisions be disclosed or stated on the record. This is true even for non-violent, low-level drug addicts.
These decisions are shrouded in such complete secrecy that they make the proceedings of the former English Court of Star Chamber appear to be a model of criminal justice transparency. See In re Oliver, 333 U.S. 257, 266–271 (1948) (“The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by . . . the English Court of Star Chamber.”). Attorney General Holder’s August 12, 2013, Memorandum to the United States Attorneys and Assistant Attorney General for the Criminal Division: Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases (Holder 2013 Memo), while establishing a national policy for § 841 enhancements, does nothing to pull aside the cloak of secrecy shrouding the nationwide disparities in the application of § 851 enhancements.
August 20, 2013 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (47) | TrackBack (0)
Revised Post (revised yet again) upon request
Regular readers know all about the controversy and pending en-banc litigation engendered by a decision rendered three months ago by a split Sixth Circuit panel in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here).....
ADDITIONAL ORIGINAL MATERIALS IN REST OF THIS POST REMOVED upon reasonable requests by lots of reasonable folks for reasonable reasons, in my judgment....
August 20, 2013 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (5) | TrackBack (0)