Wednesday, May 27, 2015

Split Connecticut Supreme Court applies Miller retroactively to 50-year discretionary juve sentence

Yesterday the Connecticut Supreme Court, splitting 4-3, gave the Supreme Court's Eighth Amendment jurisprudence concerning juvenile LWOP sentencing the furthest reach of any major ruling I have seen through its opinion in Casiano v. Commissioner of Correction, No. SC19345 (Conn. May 26, 2015) (majority opinion here, dissents here and here).  Here is how the majority opinion gets started:  

We recently held in State v. Riley, 315 Conn. 637, 659, A.3d (2015), that, to comport with the eighth amendment to the federal constitution, the trial court must give mitigating weight to the youth related factors set forth in Miller v. Alabama, U.S. , 132 S. Ct. 2455, 2464–65, 2468, 183 L.Ed. 2d 407 (2012), when considering whether to impose a life sentence without the possibility of parole on a juvenile homicide offender.  In Riley, the defendant challenged on direct appeal a total effective sentence of 100 years with no possibility of parole before his natural life expired, a sentence that the state conceded was the functional equivalent to life without parole.  State v. Riley, supra, 642. The different procedural posture and sentence in the present case raises two significant issues regarding the reach of Miller: whether Miller applies retroactively under Connecticut law to cases arising on collateral review, and, if so, whether Miller applies to the imposition of a fifty year sentence on a juvenile offender.  We answer both questions in the affirmative and, therefore, reverse the habeas court’s decision rendering summary judgment in favor of the respondent, the Commissioner of Correction, on the petition for a writ of habeas corpus filed by the petitioner, Jason Casiano.

May 27, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

More evidence for sentencing fans that soccer can be very exciting

Tumblr_laum40igMI1qafnx3o1_500This lengthy official Justice Department press release provides all the basic details on the sentencing and soccer story breaking in New York this morning.  Here is the extended heading of the press release:

Nine FIFA Officials and Five Corporate Executives Indicted for Racketeering Conspiracy and Corruption

The Defendants Include Two Current FIFA Vice Presidents and the Current and Former Presidents of the Confederation of North, Central American and Caribbean Association Football (CONCACAF); Seven Defendants Arrested Overseas; Guilty Pleas for Four Individual Defendants and Two Corporate Defendants Also Unsealed

Here are some of the particulars:

A 47-count indictment was unsealed early this morning in federal court in Brooklyn, New York, charging 14 defendants with racketeering, wire fraud and money laundering conspiracies, among other offenses, in connection with the defendants’ participation in a 24-year scheme to enrich themselves through the corruption of international soccer.  The guilty pleas of four individual defendants and two corporate defendants were also unsealed today.

The defendants charged in the indictment include high-ranking officials of the Fédération Internationale de Football Association (FIFA), the organization responsible for the regulation and promotion of soccer worldwide, as well as leading officials of other soccer governing bodies that operate under the FIFA umbrella.  Jeffrey Webb and Jack Warner – the current and former presidents of CONCACAF, the continental confederation under FIFA headquartered in the United States – are among the soccer officials charged with racketeering and bribery offenses.  The defendants also include U.S. and South American sports marketing executives who are alleged to have systematically paid and agreed to pay well over $150 million in bribes and kickbacks to obtain lucrative media and marketing rights to international soccer tournaments....

The guilty pleas of the four individual and two corporate defendants that were also unsealed today include the guilty pleas of Charles Blazer, the long-serving former general secretary of CONCACAF and former U.S. representative on the FIFA executive committee; José Hawilla, the owner and founder of the Traffic Group, a multinational sports marketing conglomerate headquartered in Brazil; and two of Hawilla’s companies, Traffic Sports International Inc. and Traffic Sports USA Inc., which is based in Florida.

“The indictment alleges corruption that is rampant, systemic, and deep-rooted both abroad and here in the United States,” said Attorney General Lynch.  “It spans at least two generations of soccer officials who, as alleged, have abused their positions of trust to acquire millions of dollars in bribes and kickbacks.  And it has profoundly harmed a multitude of victims, from the youth leagues and developing countries that should benefit from the revenue generated by the commercial rights these organizations hold, to the fans at home and throughout the world whose support for the game makes those rights valuable.  Today’s action makes clear that this Department of Justice intends to end any such corrupt practices, to root out misconduct, and to bring wrongdoers to justice – and we look forward to continuing to work with other countries in this effort.” 

May 27, 2015 in Offense Characteristics, Sports, White-collar sentencing | Permalink | Comments (1) | TrackBack (0)

Tuesday, May 26, 2015

"Charging Inmates Perpetuates Mass Incarceration"

The title of this post is the title of this notable new Brennan Center white paper authored by Lauren-Brooke Eisen.  Here is its introduction (with endnotes omitted):

The American criminal justice system is replete with fees that attempt to shift costs from the government to those accused and convicted of breaking the law.  Courts impose monetary sanctions on a “substantial majority of the millions of U.S. residents convicted of felony and misdemeanor crimes each year.”  Every aspect of the criminal justice process has become ripe for charging a fee.  In fact, an estimated 10 million people owe more than $50 billion in debt resulting from their involvement in the criminal justice system. In the last few decades, additional fees have proliferated, such as charges for police transport, case filing, felony surcharges, electronic monitoring, drug testing, and sex offender registration.  Unlike fines, whose purpose is to punish, and restitution, which is intended to compensate victims of crimes for their loss, user fees are intended to raise revenue.  The Justice Department’s March 2015 report on practices in Ferguson, Mo. highlights the overreliance on court fines as a primary source of revenue for the jurisdiction.  The New York Times noted that the report found that “internal emails show city officials pushing for more tickets and fines.”

Fees and debts are increasing partially because the criminal justice system has grown bigger.  With 2.2 million people behind bars, courts — and all the relevant agencies — have expanded as well.  Since the 1970s, incarceration in the U.S. has risen steeply, dwarfing the incarceration rate of any other nation on Earth.  The U.S. added about 1.1 million incarcerated people, almost doubling the nation’s incarcerated population, in the past 20 years.  The fiscal costs of corrections are high — more than $80 billion annually — about equivalent to the budget of the federal Department of Education.6 A recent report by the Center on Budget and Policy Priorities finds that corrections is currently the third-largest category of spending in most states, behind education and health care.  In fact, somewhat disconcertingly, 11 states spent more of their general funds on corrections than on higher education in 2013.

Fees already on the books have increased.  And, these fees are extending into state and local corrections.

As a result of these runaway costs, counties and states continue to struggle with ways to increase revenue to pay for exorbitant incarceration bills.  In 2010, the mean annual state corrections expenditure per inmate was $28,323, although a quarter of states spent $40,175 or more.  Not surprisingly, departments of corrections and jails are increasingly authorized to charge inmates for the cost of their imprisonment.  Although this policy is alarming, less widely understood but equally troubling is the reality that these incarceration fees perpetuate our nation’s addiction to incarceration.  This policy brief exposes how the widespread nature of charging fees to those who are incarcerated connects to the larger problem of mass incarceration in this country.

May 26, 2015 in Fines, Restitution and Other Economic Sanctions, Scope of Imprisonment | Permalink | Comments (2) | TrackBack (0)

Nebraska Gov officially vetoes bill to repeal death penalty in the Cornhusker State

As reported in this local article, "Gov. Pete Ricketts delivered Tuesday on his promise to veto legislation that would repeal the death penalty for murderers in Nebraska." Here is more on the decision and what is likely to follow it:

"This is a matter of public safety," Ricketts said. "We need to have strong sentencing. We need to be sure our prosecutors have the tools to put these hardened criminals behind bars."

"I urge our senators to stand with Nebraskans and law enforcement," Ricketts said.

The governor was joined by Attorney General Doug Peterson and family members of Evonne Tuttle, who was one of five people killed in the 2002 Norfolk bank robbery. Three of the killers involved in the robbery are on death row. Evonne's mother, Vivian Tuttle, said she sat through the trials. In each one, she watched the surveillance video that showed Jose Sandoval put a gun to her daughter Evonne's head as she knelt on the floor and was shot to death. "I want justice for my grandchildren. I want justice for the other families," she said.

The Legislature passed the death penalty bill (LB268) on Wednesday on a 32-15 vote. Thirty votes would be required to override the governor's veto. The governor said Friday that senators who voted to repeal the death penalty weren't in touch with their constituents. But a number of those senators said Tuesday at least half of their constituent contacts are telling them to stick to their votes in favor of repeal.

Supporters have lost at least one override vote -- Sen. Jerry Johnson of Wahoo. Johnson said he was shaky on his repeal vote last week. Then, most of his emails urging him to vote for repeal were from the faith community. What he has learned since last week's vote is that people in the pews aren't necessarily on the same page as church leadership, he said....

Another senator who voted for repeal -- Sen. John Murante of Gretna -- also is reconsidering his vote, he said. He is discussing it with many constituents who have called him over the past few days, he said. "I've always been torn on the issue of the death penalty," he said, "and I'm gathering as many opinions as I can before rendering a vote on the veto override."

Sounds like every single vote is going to matter now in Nebraska's unicameral legislature. Stay tuned.

May 26, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

"Implementing Just Mercy"

The title of this post is thew title of this notable new piece authored by William Berry III now available via SSRN. Here is the abstract:

This book review essay explores the connection between Bryan Stevenson's recent book, "Just Mercy: A Story of Justice and Redemption", and the development of concepts of individualized sentencing under the Sixth and Eighth amendments by the Supreme Court.

In light of these steps toward individualizing sentencing, this book review essay imagines a serious application of the principles of just mercy that Stevenson has championed in his legal career to the criminal justice system.  Specifically, this essay argues that individualized consideration of criminal offenders throughout the criminal justice process — from policing to sentencing — is necessary to achieve the compatible (not competing) goals of justice and mercy.

The essay proceeds in three parts.  Part One describes Stevenson’s book, highlighting the principles of just mercy latent in his narrative and their connection to the individualized consideration of criminal offenders.  In Part Two, the essay shifts to argue that many of the current shortcomings of the criminal justice system result directly from stigmatizing alleged offenders rather than considering them individually as people possessing human dignity.  Finally, in Part Three, the essay outlines a series of criminal justice reforms drawn from Stevenson’s experiences and the concepts of individualized consideration that emerge from pursuing just mercy.

May 26, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

SCOTUS grants cert on a federal sentencing case and state capital case

This morning's Supreme Court order list, available here, includes two grants of certiorari.  Both cases are criminal cases, Lockhart v. US and Foster v. Humphrey, and here are the links to casepages and the issues via SCOTUSblog:

Lockhart v. US:  Whether the mandatory minimum sentence of 18 U.S.C. § 2252(b)(2) is triggered by a prior conviction under a state law relating to "aggravated sexual abuse" or "sexual abuse," even though the conviction did not "involv[e] a minor or ward," an issue that divides the federal courts of appeals.

Foster v. Humphrey: Whether the Georgia courts erred in failing to recognize race discrimination under Batson v. Kentucky in the extraordinary circumstances of this death penalty case.

May 26, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

Monday, May 25, 2015

Swish or brick as basketball great calls upon US to "Abolish the Death Penalty"?

Download (4)The question in the title of this post is prompted by this notable recent Time commentary authored by Kareem Abdul-Jabbar.  (We learned in the classic movie Airplane! that Abdul-Jabbar could fly a commercial jet, so I suppose I am not too surprised he also is an effective sentencing advocate.)  Here are excerpts from a commentary which suggests to me that Abdul-Jabbar could take over my professional responsibilities much better than I could ever have done his professional work:

The death penalty is suddenly trending again.  On Wednesday, Nebraska lawmakers voted to repeal the state’s death penalty.  Last week, the jury in the Boston Marathon bombing case decided that Dzhokhar Tsarnaev should be executed. The U.S. Supreme Court is currently reviewing the constitutionality of lethal injection in the death-penalty case Glossip v. Gross.  Last month, the Federal Bureau of Investigations and the Justice Department admitted that almost every examiner in the FBI microscopic hair forensic unit overstated matches in favor of the prosecution in 95% of the cases in which they testified over the past 20 years.  (This included 32 defendants sentenced to death, 14 of which have been executed or died in prison.)  Norman Fletcher, the former chief justice of the Georgia Supreme Court who during his tenure upheld numerous death sentences, announced last week that the death penalty is “morally indefensible,” makes no business sense, and is inconsistent and applied unfairly....

Traditional reasons to support the death penalty are going the same way as conventional wisdom for denying same-sex marriage and gender equality.  Some will talk about how justice demands the death penalty, and some will say that the only way to enforce the sanctity of human life is by executing those who recklessly and arrogantly take it away. Some will argue that it protects innocent lives, others that it brings closure to victims’ families. Some will offer personal tales of loss.  These are all heartfelt points, but ultimately they are simply wrong in terms of doing what is best for society.

The primary purpose of the death penalty is to protect the innocent.  Theoretically, if someone deliberately murders someone else, executing that person protects the rest of us by removing him from society, never again to be a threat.  But, as always, there’s a big difference between theory and practice.  While it’s true that the death penalty may protect us from the few individuals it does execute, it does not come without a significant financial and social price tag that may put us all at an even greater risk....

In the states that have abolished the death penalty in the last decade, politicians from both parties have cited cost as the main reason.  This isn’t a matter of morality versus dollars.  It’s about the morality of saving the most lives with what we have to spend. Money instead could be going to trauma centers, hospital personnel, police, and firefighters, and education.

Some will ask, “How can you put a price on justice?” and “What if it were your mother or son who’d been murdered?” Fair enough. But given the current cost of the death penalty, my family is much more at risk from not having enough police on the street, firefighters in their stations, and staff in hospitals. The question every concerned taxpayer needs to ask is whether or not we should be spending hundreds of millions of dollars on executing prisoners when life without parole keeps the public just as safe but at a fraction of the cost. The money saved won’t solve all our financial woes, but it will solve some — and could save lives doing so....

The second major problem with the death penalty is that there’s a high probability that we execute innocent people. The traditional test of a person’s philosophy about justice is a simple question: If you had 10 people sentenced to death but you knew one was innocent, would you keep them all in prison for life with the hopes that the innocent person will be discovered and released? Or would you execute all of them with the idea that the occasional innocent person is an acceptable loss for a greater good? If you answer that you’d keep them in prison, you’re against the death penalty....

The third problem with the death penalty is that the system is biased based on race and economic standing. Minorities have Favorite Son status when it comes to being executed. According to a study by law professor David Baldus and statistician George Woodworth, a black defendant is four times more likely to receive a death sentence than a white defendant for a similar crime. Part of the reason for this may be that those most responsible for determining which cases to pursue are white. Nearly 98% of chief district attorneys in counties using the death penalty are white; about 1% are African American....

Another unfair application is the lack of adequate representation received by poor defendants. U.S. Supreme Court Justice Ruth Bader Ginsberg addressed this issue: “People who are well represented at trial do not get the death penalty.” Although poor defendants are guaranteed representation, they aren’t guaranteed the best representation. This is evident when we examine the records of some these court-appointed attorneys: Nearly 1 in 4 death row inmates were represented by court-appointed attorneys who were disciplined for professional misconduct during their careers. A report by the Texas Defender Service concluded that death row inmates have a 1 in 3 chance of being executed “without having the case properly investigated by a competent attorney and without having any claims of innocence or unfairness presented or heard.” The attorneys for one-fifth of the death row inmates in Washington state over the last 20 years were disbarred, suspended, or arrested. This list of incompetent representation goes on....

Supporters of the death penalty may say it deters other would-be murderers, but 2009 study in the Journal of Criminal Law & Criminology states that “the consensus among criminologists is that the death penalty does not add any significant deterrent effect above that of long-term imprisonment.” Some argue that it brings closure for families of victims. In some cases it does; in others it doesn’t. That’s why there are various organizations—California Crime Victims for Alternatives to the Death Penalty, Murder Victims’ Families for Reconciliation, Murder Victims’ Families for Human Rights—made up of family members of murder victims who oppose the death penalty....

Some people deserve to die. They commit acts so brutal that they cannot ever be a part of society. But we can’t let our passion for revenge override our communities’ best interest. The death penalty is an elaborate Rube Goldberg device with a thousand moving parts, each one expensive and in serious disrepair, to achieve a dubious end. With something as irrevocable as death, we can’t have one system of justice for the privileged few and another for the rest of the country. That, more than anything, diminishes the sanctity of human life.

Yes, there are many ways the death penalty system might someday be improved so that it will cost less, not risk innocent lives, and be fairly applied to all. Until that day, life without parole will bring us justice and allow us the opportunity to correct our mistakes before it’s too late. 

May 25, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack (0)

Providing a script for "How To Lock Up Fewer People" in the United States

Given that there has been plenty of talk, but still relatively little action. on proposals for significant federal sentencing reform, perhaps it is especially timely for Marc Mauer and David Cole to have this New York Times commentary providing someting of a how-to guide for dealing with modern mass incarceration.  The piece is headlined "How To Lock Up Fewer People," and here are excerpts:

Today, nearly everyone acknowledges that our criminal justice system needs fixing, and politicians across the spectrum call for reducing prison sentences for low-­level drug crimes and other nonviolent offenses.  But this consensus glosses over the real challenges to ending mass incarceration.  Even if we released everyone imprisoned for drugs tomorrow, the United States would still have 1.7 million people behind bars, and an incarceration rate four times that of many Western European nations.  Mass incarceration can be ended.  But that won’t happen unless we confront the true scale of the problem.

A hard­nosed skeptic would tell you that fully half the people in state prisons are serving time for violent offenses.  And most drug offenders behind bars are not kids caught smoking a joint, but dealers, many with multiple prior convictions.  We already have about 3,000 drug courts diverting those who need it to treatment rather than prison.  Recidivism remains astonishingly high for those we release from prison, so releasing more poses real risks....

It’s true that half the people in state prisons are there for a violent crime, but not all individuals convicted of violent crimes are alike. They range from serial killers to minor players in a robbery and battered spouses who struck back at their abusers. If we are going to end mass incarceration, we need to recognize that the excessively long sentences we impose for most violent crimes are not necessary, cost­-effective or just.

We could cut sentences for violent crimes by half in most instances without significantly undermining deterrence or increasing the threat of repeat offending.  Studies have found that longer sentences do not have appreciably greater deterrent effects; many serious crimes are committed by people under the influence of alcohol or drugs, who are not necessarily thinking of the consequences of their actions, and certainly are not affected by the difference between a 15-­year and a 30­-year sentence....

Offenders “age out” of crime — so the 25-­year-­old who commits an armed robbery generally poses much less risk to public safety by the age of 35 or 40.  Yet nearly 250,000 inmates today are over 50.  Every year we keep older offenders in prison produces diminishing returns for public safety.  For years, states have been radically restricting parole; we need to make it more readily available.  And by eliminating unnecessary parole conditions for low­-risk offenders, we can conserve resources to provide appropriate community­based programming and supervision to higher-­risk parolees.

It’s true that most individuals incarcerated for a drug offense were sellers, not just users. But as a result of mandatory sentencing laws, judges often cannot make reasonable distinctions between drug kingpins and street­corner pawns.  We ought to empower judges to recognize the difference, and to reduce punishment for run­-of­-the-­mill offenders, who are often pursuing one of the few economic opportunities available to them in destitute communities....

Recidivism is also a serious obstacle to reform.  Two­-thirds of released prisoners are rearrested within three years, and half are reincarcerated.  But many of the returns to prison are for conduct that violates technical parole requirements, but does not harm others.  And much of the problem is that the scale and cost of prison construction have left limited resources for rehabilitation, making it difficult for offenders to find the employment that is necessary to staying straight. So we need to lock up fewer people on the front end as well as enhance reintegration and reduce collateral consequences that impede rehabilitation on the back end.

Criminal justice is administered largely at the state level; 90 percent of those incarcerated are in state and local facilities.  This means mass incarceration needs to be dismantled one state at a time.  Some states are already making substantial progress. New Jersey, California and New York have all reduced their prison populations by about 25 percent in recent years, with no increase in crime.  That should be good news for other states, which would reap substantial savings — in budgetary and human terms — if they followed suit. While the federal government cannot solve this problem alone, it can lead both by example and by providing financial incentives that encourage reform....

Today, at long last, a consensus for reform is emerging. The facts that no other Western European nation even comes close to our incarceration rates, and that all have lower homicide rates, show that there are better ways to address crime. The marked disparities in whom we choose to lock up pose one of the nation’s most urgent civil rights challenges. But we will not begin to make real progress until we face up to the full dimensions of the task.

May 25, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1) | TrackBack (0)

Sunday, May 24, 2015

"Before sentencing, Ulbricht begs for leniency: 'please leave me my old age'"

This new ars technica posting provides the title of this post and it provides background and links to a high-energy effort by a high-profile defendant to get a lower sentence for his high-tech drug dealing crimes for which he will be sentenced in the coming week.  Here are excerpts:

Convicted Silk Road founder Ross Ulbricht and no less than 97 of his friends and family members have written to a judge just days prior to sentencing, asking her to impose the most lenient sentence possible. (Ars has posted the letters online along with the court filing of photos of Ulbricht and many family and friends.)

 Under federal mandatory minimum sentencing guidelines, Ulbricht faces at least 20 years in prison and possibly as long as life behind bars.  “Silk Road turned out to be a very naive and costly idea that I deeply regret,” he wrote in his own 1.5 page letter to United States District Judge Katherine Forrest filed on Friday.

Ulbricht’s own letter marks the first time he has shown any public remorse during the entire saga, during which he did not testify. His attorney, Joshua Dratel, spun unsubstantiated theories that while Ulbricht created Silk Road, unnamed mysterious others took over the site and should be the ones prosecuted for the crime. Dratel previously vowed to appeal the verdict.

In February 2015, Ulbricht was convicted of seven charges including three drug counts: distributing or aiding and abetting the distribution of narcotics, distributing narcotics or aiding and abetting distribution over the Internet, and conspiracy to violate narcotics laws. He was also convicted on a fourth count of conspiracy to run a "continuing criminal enterprise," which involves supervising at least five other people in an organization. In addition, Ulbricht was convicted on conspiracy charges for computer hacking, distributing false identification, and money laundering.

Prior related posts:

May 24, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack (0)

Effective review of effective(?) use of sentencing mitigation videos ... and concerns about equity

Today's New York Times has this lengthy discussion of a digital development in modern sentencing proceedings.  The piece is headlined "Defendants Using Biographical Videos to Show Judges Another Side at Sentencing," and here are excerpts:

Lawyers are beginning to submit biographical videos at sentencings, and proponents say they could transform the process. Defendants and their lawyers already are able to address the court before a sentence is imposed, but the videos are adding a new dimension to the punishment phase of a prosecution. Judges “never knew the totality of the defendant” before seeing these videos, said Raj Jayadev, one of the people making the[se videos].... “All they knew was the case file.”

Yet as videos gain ground, there is concern that a divide between rich and poor defendants will widen — that camera crews and film editors will become part of the best defense money can buy, unavailable to most people facing charges.  Videos, especially well­produced ones, can be powerful.  In December, lawyers for Sant Singh Chatwal, a millionaire hotelier who pleaded guilty in Federal District Court in Brooklyn to illegal campaign donations, submitted a 14­minute video as part of his sentencing.  Elegantly produced, it showed workers, family members and beneficiaries of Mr. Chatwal describing his generosity.

As he prepared to sentence Mr. Chatwal, Judge I. Leo Glasser said he had watched the video twice, including once the night before.  The judge, echoing some of the themes in the video, recounted Mr. Chatwal’s good works.  Judge Glasser then sentenced Mr. Chatwal to probation, much less than the approximately four to five years in prison that prosecutors had requested.

Yet efforts like those on behalf of Mr. Chatwal are hardly standard.  While every criminal defendant is entitled to a lawyer, a day in any court makes it clear that many poor people do not receive a rack­-up-­the-­hours, fight-­tooth-and-­nail defense like Mr. Chatwal did.

Even in cities with robust public defense programs, like New York City, lawyers may be carrying as many as 100 cases at once, and they say there is little room to add shooting and editing videos to their schedules.  “It’s hard for me to imagine that public defenders could possibly spare the time to do that,” said Josh Saunders, who until recently was a senior staff attorney at Brooklyn Defender Services, adding that lawyers there are often physically in court for the entire workday.  He sees the humanizing potential of videos, he said, but “I would also be concerned that defendants with means would be able to put together a really nice package that my clients generally would not be able to.”

Mr. Jayadev’s nonprofit, Silicon Valley De­Bug, a criminal justice group and community center in San Jose, Calif., believes that videos are a new frontier in helping poor defendants, and is not only making videos but encouraging defense attorneys nationwide to do the same.  The group has made about 20 biographical videos for defendants, one featuring footage of the parking lot where a homeless teenage defendant grew up.  With a $30,000 grant from the Open Society Foundation, De­Bug is now training public defenders around the country....

LaDoris H. Cordell, a former state court judge in Santa Clara County who is now the independent police auditor in San Jose and who has seen some of Mr. Jayadev’s videos, said she would like them to be used more widely at sentencings.

“I’m very wary, and I was as a judge, of the double standard,” where wealthy defendants can afford resources that poorer defendants cannot, she said. “It is a problem, and what Raj is doing, these videos, is something that should be available to anyone who needs to have it done.” A prosecution, she said, is “usually is a one­sided process, and now it’s like the scales are being balanced out.

May 24, 2015 in Procedure and Proof at Sentencing, Race, Class, and Gender, Technocorrections | Permalink | Comments (2) | TrackBack (0)

Saturday, May 23, 2015

You be the prosecutor: what sentence will you recommend for convicted "sex on beach" couple?

Regular readers may recall this post from earlier this month, titled "Imprisonment for 15 years for sex on the beach?!?! Really?!?!," which covered the possibility of one member of an indecent couple in Florida facing a mandatory 15-year prison sentence for shoreline dirty dancing with his girlfriend.  But this follow-up post reported that State Attorney Ed Brodsky indicated that "he will not seek the maximum possible punishment — 15 years in prison — for the couple convicted of having sex in public on Bradenton Beach."  Now this news update on the notable case indicates that sentencing is likely to be scheduled in the coming weeks and includes this partial preview:

Jose Caballero, 40, and Elissa Alvarez, 20, were convicted May 4 on two counts each of lewd and lascivious behavior for having sex on Cortez Beach on July 20, 2014. The convictions carry a maximum sentence of 15 years in prison and require both to register as sex offenders....

The State Attorney's Office has said it will not seek the maximum penalty for either defendant, but is looking into jail time for both of them. [Assistant state attorney prosecutor Anthony] Dafonseca said they'd seek a harsher punishment against Caballero, who has served prison time for cocaine trafficking.

The defendants were represented by attorney Ronald Kurpiers, but Alvarez will be represented at sentencing by Greg Hagopian, according to Dafonseca. Hagopian said he didn't want to discuss the reason for Alvarez's switch. She had no criminal record before her conviction.

A few people filed letters on behalf of the defendants, saying the judge should take it easy on Alvarez and Caballero and not make them register as sex offenders. "You are likening these two individuals to deplorable people who have actually taken advantage of or violated children," read a letter signed by Femi Olukoya. "This state needs to grow up and that can start with you," read another letter.

The jury found the couple guilty after a 1 1/2 day trial and only 15 minutes deliberation. One of the witnesses took video of the two in July, showing Alvarez moving on Caballero in a sexual manner in broad daylight.

Unsuprisingly, prior posts about this case generated a lot of notable commentary, and now I am eager to focus discussion on how folks think the state prosecutors here ought to exercise their sentencing discretion. Specifically, I would really like folks to put themselves in the shoes of the Florida prosecutors and state, with some specificity, exactly what sentence they think should be recommended to the sentencing judge in this unusual criminal case.

Prior related post:

May 23, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (20) | TrackBack (0)

Friday, May 22, 2015

"Who Are Woman Sex Offenders and Why Are They Treated Like Men?"

The title of this post is the headline of this intriguing piece posted at Dissident Voice written by Sonia Van den Broek, who admits at the start of the piece how she became a female charged with a sex offense:

For the first quarter of my life, I didn’t think much about sex offenders. Call it thoughtlessness or a naïve little bubble; it was probably both. This thoughtlessness might not be unique. But I began thinking about sex offenders when, at age 25, I was charged with a sex crime.

I had had sexual contact with my 17-year-old neighbor. I’m not proud of this and, if given the chance, would absolutely reverse that decision. But I slept with him once and joined the burgeoning ranks of women charged with sex offenses.

Here is some of what she goes on to say about this very interesting topic:

While women sex offenders are a low portion of the population, they do exist and in higher numbers than before 1994 (when the Jacob Wetterling Improvements Act was established).  There is a trend toward sexual contact with teenage males.  Often, the women are motivated by a desire for companionship or have a sense that their current adult-age relationships are unfulfilling.

In other instances, the women are prison guards or case managers who have had sex with inmates. In the state of Colorado, any incarcerated person is legally incapable of consenting to sex, so that any sexual contact he or she does have is considered a crime. Once in a while, a woman will have sexual contact with an intellectually disabled person, sometimes without realizing that this person’s consent is not actually legal.

Women very rarely have sexual contact with children younger than 13. I’ve known only two women in this category and both were motivated by other factors: anger, a history of abuse in their own childhoods, resentment, and a feeling of being trapped.  Most female sex offenders aren’t motivated by power and control, which, among male offenders, is the leading motivation for sexual contact with someone before the age of puberty.  Actually, regardless of the victim’s age, power and control are a much more compelling motivator for men than for women.

Of course, I don’t condone this behavior in the least.  I’m not saying that women who sleep with 17-year-olds should be given a free pass or skip blithely past the consequences. But I do believe we need to rethink the way that we treat and rehabilitate these women. We need to focus less on the scintillating sexual details and more on the emotions and needs that motivated them.

Here lies perhaps the greatest injustice: in the sex offender system, women are treated exactly like men.  Treatment providers aren’t given special instruction in dealing with women.  The treatment programs are written for men, using statistics about male offenders and past treatment models of men.  Imagine!  Although women’s motivations and victims are diabolically different, they receive the same treatment model as men who rape women, prey on young children, and commit serial crimes.

At the moment, the justice system hides behind the fact that there isn’t enough research into female offenders.  This is partly true: women offend at a much lower rate than men, and so studying their motivations takes a little more work.  But as the sex offender laws expand to include more and more actions, there are an increasing number of women caught in sex crimes.

A lack of evidence should never be the reason for poor rehabilitation.  It should be the impetus, in fact, for working harder to understand why some women commit sex crimes and how to prevent it in the future.  When I asked a treatment provider for data about the effects on teenage males of sex crimes committed by women, she had one study. It was a tiny example, too: 13 males from the Midwest. Only that. In a nation that routinely penalizes women for sexual contact with teenage males, only one study existed that documented this phenomenon.  By contrast, decades of research and hundreds of studies have informed the treatment material and methods for men who commit sex crimes.

Research about recidivism rates is also based primarily on male populations and varies drastically.  Estimates about recidivism rates for sex offenders range from 2.5% for another sex crime to to 43% for any crime at all.  But since the law doesn’t differentiate among sex offenders, these studies are nearly useless.  A woman who has sex with a teenager is in the same category with a developmentally disabled person who is an exhibitionist, and those two are in the same category with a man who raped and murdered a child.  The lumping-together of sex offenses creates confusion even while it feeds public hysteria....

Treating sex offenders, especially women offenders, has become drastically un-therapeutic. “Treatment” revolves around complex rules, low self-esteem, and the constant fear of punishment.  It does nothing to address the complex emotional choices that led people to their crimes.  Rather, the justice system beats down already hurting women.

May 22, 2015 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack (0)

"Federal Sentencing Error as Loss of Chance"

The title of this post is the title of this notable new piece available via SSRN authored by Kate Huddleston. Here is the abstract:

Federal courts have taken the wrong approach to discussing sentencing error.  Circuit court opinions in career offender cases have framed the debate over collateral review of federal sentencing error as a conflict between finality and fairness.  This Comment contends that disagreement over the cognizability of such claims is actually a dispute about the nature of the harm in sentencing error.  What federal courts are actually asking, in effect, is whether the lost probability of a lower sentence is itself a cognizable injury.

The Comment draws on an analogy to tort law to argue that sentencing debates are, at their core, about loss of chance.  Part I highlights the role that probability plays in recent sentencing opinions.  It argues that, as an empirical matter, loss of chance is an accurate way to describe sentencing error given the anchoring effect of the Federal Sentencing Guidelines on sentencing practices.  Part II makes the structural case for conceptualizing Guidelines sentencing error as a problem of probability, arguing that failure to recognize the probability dispute has obscured an underlying debate about the continued vitality of the Guidelines system.  After United States v. Booker, the Sentencing Guidelines are advisory in principle and influential in practice. Part II argues that treating Guidelines error as loss of chance — and a loss that may constitute a fundamental miscarriage of justice — is necessary in order to enforce a Guidelines regime that is neither too rigid nor wholly indeterminate.

May 22, 2015 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack (0)

Two notable voices from the (far?) right calling again for drug war and sentencing reform

Download (2)The two recent stories about recent comments by notable advocates reinforce my sense that more and more traditional (and not-so-traditional) conservative voices are feeling more and more confortable vocally criticizing the federal drug war and severe drug sentencing:

Headline: "Grover Norquist: Malloy Right On Drug Sentencing Reform"

Money Quotes:   If you told me a year ago that I [Grover Norquist] would be speaking out in favor of one of Gov. Dannel P. Malloy's top priorities, I would have said you were crazy. The governor is a tax-and-spend liberal and I have spent my entire career fighting high taxes and wasteful government spending. Yet, just as a broken clock gets it right once in a while, Gov. Malloy is right about the need to reform mandatory minimum sentencing laws.

Contrary to their original intent, mandatory minimum laws have done little to reduce crime. They have, however, been significant drivers of prison overcrowding and skyrocketing corrections budgets. That's why conservatives and liberals in Washington, D.C., and in statehouses all across the country are coming together to repeal and reform these one-size-fits-all laws. Oklahoma, Georgia, South Carolina, Texas and Florida are just a handful of the states where conservatives have not simply supported, but led, the efforts to scale back mandatory minimum sentences.

Conservatives in Connecticut should support the governor's mandatory minimum proposals for two reasons. First, the reforms are very modest — addressing only drug possession. In some states, such as Connecticut's neighbor, Rhode Island, and Delaware, lawmakers have repealed mandatory minimum sentences for all drug offenses. Still more states have enacted significant reform to their drug mandatory minimum laws so that judges have discretion to impose individualized sentences that fit the crime. In all of these states, crime rates have dropped.

Conservatives in Connecticut also should embrace sentencing reform because of the state's awful budget mess. For too long, fiscal hawks have turned a blind eye to wasteful law enforcement spending. Not wanting to appear "soft on crime," they have supported every program and policy to increase the prison population without subjecting those ideas to cost-benefit analysis.

Those days are over. After watching state spending on prisons skyrocket more than 300 percent over the last two decades, state leaders across the country seem to understand that they can no longer afford to warehouse nonviolent offenders in prison.


Headline: "Glenn Beck Calls for the Repeal of Federal Drug Prohibition"

Money QuotesToday on Glenn Beck's radio (and TV) show, I [Jacob Sullum] debated marijuana prohibition with Robert White, co-author (with Bill Bennett) of Going to Pot: Why the Rush to Legalize Marijuana Is Harming America The conversation turned to the war on drugs in general and also touched on federalism, the Commerce Clause, the nature of addiction, and the moral justification for paternalistic interference with individual freedom.  Reading from my recent Forbes column, Beck said he is strongly attracted to the Millian principle that "the individual is sovereign" over "his own body and mind," which rules out government intervention aimed at protecting people from their own bad decisions. "I'm a libertarian in transit," he said. "I'm moving deeper into the libertarian realm.... Inconsistencies bother me." By the end of the show, Beck was declaring that the federal government should call off its war on drugs and let states decide how to deal with marijuana and other psychoactive substances.

Addendum: Marijuana Majority's Tom Angell notes that Beck indicated he favored marijuana legalization back in 2009, saying, "I think it's about time we legalize marijuana...  We either put people who are smoking marijuana behind bars or we legalize it, but this little game we are playing in the middle is not helping us, it is not helping Mexico and it is causing massive violence on our southern border...  Fifty percent of the money going to these cartels is coming just from marijuana coming across our border." As far as I know, however, this is the first time Beck has explicitly called for an end to federal prohibition of all the other currently banned drugs.

May 22, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

Thursday, May 21, 2015

Examining what qualifies as an LWOP sentence for purposes of Graham and Miller

This new piece at The Marshall Project, headlined "Life Expectancy: How many years make a life sentence for a teenager?," spotlights an Eighth Amendment issue that has been engaging lower courts in the five years since SCOTUS in Graham began putting limits of LWOP sentences for juvenile offenders.  Eventually the Supreme Court will have to resolve the issue of just what qualifies as an LWOP sentence, and here is an account of issue (with some links to notable rulings):

James Comer was 17 when he, an older cousin, and their friend made a series of violent and irreversible decisions: One night in April 2000, they robbed four people at gunpoint. They followed one of their victims for miles as she drove home from her night shift as a postal worker, then pointed a gun at her head outside her house.  Comer’s friend, 17-year-old Ibn Ali Adams, killed their second victim when he discovered the man had no money.

Comer’s youth, his lawyers argue, was at least partly responsible for his poor judgment and impulsive behavior. And it is his youth that may save him from dying in prison. Earlier this month, an Essex County, New Jersey, judge ordered a new sentencing hearing for Comer in light of Miller v. Alabama. ...

But Comer isn’t serving life without parole, at least not technically. For felony murder and multiple counts of armed robbery, he was sentenced to 75 years. He will be eligible for parole, but not until his 86th birthday — more than 20 years past his life expectancy, according to actuarial data his lawyers cited. This sentence “amounts to de facto life without parole and should be characterized as such,” the judge wrote.

Miller v. Alabama was the third in what’s come to be known as the “Roper/Graham/Miller trilogy” of cases in which the Supreme Court ruled, essentially, that kids are different. Teenagers’ still-developing brains make them more impulsive, more susceptible to peer pressure, and less able to understand the consequences of their actions. This makes them less culpable than adults and more amenable to rehabilitation as they mature, the court said.

With Roper, the court outlawed the death penalty for juveniles. With Graham, it struck down life-without-parole sentences for non-homicide crimes. With Miller, the justices forbid mandatory life-without-parole sentences, even for murder. Life sentences for juveniles are allowed only if the judge first has the chance to consider how youth and immaturity may have contributed to the crime....

Now a growing number of courts are interpreting the trilogy even more broadly, applying their principles to cases, like Comer’s, that aren’t explicitly covered by the court’s rulings.

“When read in light of Roper and Graham,” Miller v. Alabama “reaches beyond its core holding,” the Connecticut Supreme Court held last month in State v. Riley. In that case, 17-year-old Ackeem Riley was sentenced to 100 years in prison after he shot into a crowd in a gang-related incident, killing one teenager and wounding two children.  The court ordered a new sentencing hearing, finding that the sentencing judge had not adequately considered Riley’s youth.  Though Miller specifically targeted mandatory life without parole sentences — technically, Riley’s sentence was neither mandatory nor life without parole — the Supreme Court’s reasoning “counsels against viewing these cases through an unduly myopic lens,” the Connecticut court said.

Courts have handed down similar rulings in Wyoming, Florida, California, Iowa, and Colorado.  Another case is pending in Ohio.

In Brown v. Indiana, the state supreme court ordered a new sentencing hearing for Martez Brown, who was 16 when he and two friends killed a couple in a botched robbery. Quoting Miller, the court ruled that “similar to a life without parole sentence, Brown’s 150 year sentence ‘forswears altogether the rehabilitative ideal.’”  Although Brown’s sentence was not formally a life-without-parole sentence, they wrote, “we focus on the forest — the aggregate sentence — rather than the trees — consecutive or concurrent, number of counts, or length of the sentence on any individual count.”

May 21, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3) | TrackBack (0)

"How America Overdosed on Drug Courts"

The title of this post is the headline of this lengthy and critical analysis of the modern drug courts movement appearing in the Pacific Standard magazine.  The subheadling highlights its main themes: "Hailed as the most compassionate way for the criminal justice system to deal with addicts, drug courts were designed to balance punishment with rehabilitation. But after 25 years, the verdict is in: Drug courts embolden judges to practice medicine without a license—and they put lives in danger." I consider this piece a must-read for all those interested in drug sentencing reform, and here are excerpts:

The first drug court opened in Florida’s Miami-Dade County in 1989, near the height of the hysteria in this country over drugs, particularly crack cocaine.  Both conservatives and liberals found something to love: Conservatives liked the potential for reduced prison spending, and liberals liked the emphasis on therapy.  From the start, however, critics voiced concerns about “cherry picking,” because the courts only allowed into the program defendants who seemed likely to succeed whether or not they received help. This sort of selectivity was built into the system: The federal laws that determine eligibility for grants to create new drug courts (ongoing funding is primarily state and local) require that the courts exclude people with a history of violent crime.  Many drug courts also bar people with long non-violent criminal histories.  Predictably, this eliminates many of those who have the most serious addictions — the very people the courts, at least in spirit, are supposed to help.

Proponents of drug courts celebrate the fact that those who participate do better than similar defendants who are simply incarcerated or given standard probation. This is unquestionably true.  “The average effect is to reduce new crimes by 10 to 15 percent,” says Douglas Marlowe, the chief of science, policy, and law for the National Association of Drug Court Professionals.  (Those crimes include not only drug sales and possession but also crimes committed to pay for drugs, such as burglary and robbery.)  “The vast majority of evaluations show that they work,” says Ojmarrh Mitchell, an associate professor of criminology at the University of South Florida, “and the effect size is larger than any other large-scale criminal justice intervention.”

These improvements are seen mainly in people who graduate, however, which is only roughly half of those who participate — a fact that the NADCP and other advocates tend to play down.  Worse, defendants who start but do not complete drug court often serve longer sentences, meted out by judges as punishment, than they would have had they simply taken a plea and not tried to solve their drug problem.  That strikes many critics as a manifest injustice.  “This is intensifying the drug war on half of the people,” says Kerwin Kaye, an assistant professor of sociology at Wesleyan University.  “It’s not stopping the drug war, it’s continuing it by other means.”  Not only that, many people who fail to graduate drug court often go on to become worse offenders, compared to both graduates and to similar defendants who do not participate in drug courts.  According to a 2013 study of New York’s drug courts conducted by the Urban Institute and the Center for Court Innovation, which included data on more than 15,000 defendants, 64 percent of non-graduates were rearrested within three years, whereas only 36 percent of graduates were. Among comparable defendants who did not participate in drug courts, just 44 percent were re-arrested in that period, suggesting that those who tried but flunked drug court did worse than those who served their time.

May 21, 2015 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack (0)

After Boston bomber's condemnation in liberal Massachusetts, is the death penalty really "withering away"?

Download (1)The question in the title of this post is prompted by this lengthy new commentary by George Will carrying the headline "Capital punishment’s slow death." Here is the full commentary, which claims to be making a "conservative case against capital punishment":

Without a definitive judicial ruling or other galvanizing event, a perennial American argument is ending. Capital punishment is withering away.

It is difficult to imagine moral reasoning that would support the conclusion that an injustice will be done when, years hence, the death penalty finally is administered to Dzhokhar Tsarnaev, the Boston Marathon terrorist who placed a bomb in a crowd and then strolled to safety. Sentencing to death those who commit heinous crimes satisfies a sense of moral proportionality. This is, however, purchased with disproportionate social costs, as Nebraska seems to be concluding.

Nebraska is not a nest of liberals. Yet on Wednesday its 49-member unicameral legislature passed a bill abolishing the death penalty 32 to 15. Gov. Pete Ricketts, a Republican, vows to veto it.

This comes at a time when, nationwide, exonerations of condemned prisoners and botched executions are dismayingly frequent. Nebraska’s death penalty opponents, including a majority of Nebraskans, say it is expensive without demonstrably enhancing public safety or being a solace to families of murder victims. Some Nebraska families have testified that the extended legal processes surrounding the death penalty prolong their suffering. That sentiment is shared by Bill and Denise Richard, whose 8-year-old son was killed by Tsarnaev.

Last month, the U.S. Supreme Court heard oral arguments about whether one component of a three-drug mixture used in lethal injection executions — and recently used in some grotesquely protracted ones — is unreliable in preventing suffering that violates the Eighth Amendment proscription of “cruel and unusual punishments.” States use the drug in question because more effective drugs are hard to acquire, partly because death penalty opponents are pressuring drug companies not to supply them.

For this, Justice Antonin Scalia blamed a death penalty “abolitionist movement.” Justice Samuel A. Alito Jr. asked, “Is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?” Justice Anthony M. Kennedy wondered, “What bearing, if any, should be put on the fact that there is a method, but that it’s not available because of opposition to the death penalty? What relevance does that have?”

The answers are: Public agitation against capital punishment is not relevant to judicial reasoning. And it is not the judiciary’s business to worry that a ruling might seem to “countenance” this or that social advocacy.

The conservative case against capital punishment, which 32 states have, is threefold. First, the power to inflict death cloaks government with a majesty and pretense of infallibility discordant with conservatism. Second, when capital punishment is inflicted, it cannot later be corrected because of new evidence, so a capital punishment regime must be administered with extraordinary competence. It is, however, a government program. Since 1973, more than 140 people sentenced to death have been acquitted of their crimes (sometimes by DNA evidence), had the charges against them dismissed by prosecutors or have been pardoned based on evidence of innocence. For an unsparing immersion in the workings of the governmental machinery of death, read “Just Mercy” by Bryan Stevenson, executive director and founder of the Equal Justice Initiative.

Third, administration of death sentences is so sporadic and protracted that their power to deter is attenuated. And the expensive, because labyrinthine, legal protocols with which the judiciary has enveloped capital punishment are here to stay. Granted, capital punishment could deter: If overdue library books were punishable by death, none would be overdue. But many crimes for which death is reserved, including Tsarnaev’s crime of ideological premeditation, are especially difficult to deter.

Those who favor capital punishment because of its supposed deterrent effect do not favor strengthening that effect by restoring the practice of public executions. There has not been one in America since 1937 (a hanging in Galena, Mo.) because society has decided that state-inflicted deaths, far from being wholesomely didactic spectacles, are coarsening and revolting.

Revulsion is not an argument, but it is evidence of what former chief justice Earl Warren called society’s “evolving standards of decency.” In the essay “Reflections on the Guillotine,” Albert Camus wrote, “The man who enjoys his coffee while reading that justice has been done would spit it out at the least detail.” Capital punishment, say proponents, serves social catharsis. But administering it behind prison walls indicates a healthy squeamishness that should herald abolition.

May 21, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (5) | TrackBack (0)

New Vera Institute of Justice report highlights the true, high "Price of Jails"

Vera-300x188The Vera Institute of Justice has just published this important new report titled, "The Price of Jails: Measuring the Taxpayer Cost of Local Incarceration." I received a press release about the report which provides this summary of its coverage and findings:

Hidden costs make jails far more expensive than previously understood, according to a new report released today by the Vera Institute of Justice, The Price of Jails: Measuring the Taxpayer Cost of Local Incarceration. Because other government agencies, whose expenditures are not reflected in jail budgets, bear a large share of costs, the report finds that Americans significantly underestimate how much of their tax dollars are being spent on incarceration.

While the U.S. Department of Justice estimated that local communities spent $22.2 billion on jails in 2011, that figure fails to take into account significant costs such as employee benefits and inmate medical care that may not be included in jail budgets. For example, in addition to the $1.1 billion spent by the City of New York Department of Corrections in 2014, other agencies spent $1.3 billion on jail employee benefits, health care and education programs for incarcerated people, and administration, bringing the total cost to $2.4 billion—more than double the official jail budget....

Despite growing national attention to the large number of Americans confined in state and federal prisons, significantly less attention has been paid to local criminal justice systems, where over-incarceration begins. There are nearly 12 million local jail admissions every year — almost 20 times the number of prison admissions, and equivalent to the populations of Los Angeles and New York City combined. The report found that the high cost of jails is most directly tied to inmate population and associated personnel costs, rather than to misspent funds in any one particular budget area.

The report’s findings are based on surveys of 35 jail systems, representing small, medium, and large jails in 18 states from every region of the country, and representing 9% of the total jail population. The survey results confirm that determining the total cost of a jail is not a simple task, even for the agency that runs it. In documenting jail expenses—which in every case surveyed extended beyond the reported corrections budget—and who pays for them, the report finds that, by and large, local taxpayers foot the bill for jails, and the costs are much higher than most people realize.

“Jails are a tremendous public cost,” said Julia Stasch, President of the MacArthur Foundation, which supported the report. “This new report proves those costs are even higher than previously thought, adding urgency to the need for reform that addresses their overuse and misuse in fiscally strapped jurisdictions nationwide.”

In addition to developing a first-of-its-kind survey for jurisdictions to use that accurately measures all of the costs of running a jail, the report reveals:

May 21, 2015 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack (0)

Wednesday, May 20, 2015

Nebraska legislature votes by large margin to repeal state's death penalty

As reported in this new AP article, " Nebraska lawmakers gave final approval on Wednesday to a bill abolishing the death penalty with enough votes to override a promised veto from Republican Gov. Pete Ricketts."  Here is more:

The vote was 32 to 15 in Nebraska's unicameral Legislature.  If that vote holds in a veto override, Nebraska would become the first conservative state to repeal the death penalty since North Dakota in 1973.  The Nebraska vote is notable in the national debate over capital punishment because it was bolstered by conservatives who oppose the death penalty for religious reasons and say it is a waste of taxpayer money.

Nebraska hasn't executed a prisoner since 1997, and some lawmakers have argued that constant legal challenges will prevent the state from doing so again.

Republican Gov. Pete Ricketts, a death penalty supporter, has vowed to veto the bill. Ricketts announced last week that the state has bought new lethal injection drugs to resume executions.  Ricketts, who is serving his first year in office, argued in his weekly column Tuesday that the state's inability to carry out executions was a "management problem" that he is committed to fixing.

Maryland was the last state to end capital punishment, in 2013. Three other moderate to liberal states have done so in recent years: New Mexico in 2009, Illinois in 2011, Connecticut in 2012. The death penalty is legal in 32 states, including Nebraska.

May 20, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

Spotlighting who profits from "Piling on Criminal Fees"

Professors Ronald Wright and Wayne Logan have this important new Huffington Post article summarizing the important themes from their important article titled "Mercenary Criminal Justice." Here are excerpts:

Criminal courts sometime function as fee-generating machines....  The problem here is not any single criminal fee; the problem is how they stack up to create injustice.  That's why we are calling for a statewide Commission on Criminal Fees.

In a recent law review article, "Mercenary Criminal Justice," we chronicled the historically central role of fee-generation in U.S. criminal justice systems, a tendency that became even more pronounced as a result of the recent fiscal crisis.  We call this system "mercenary" because the revenues affect the enforcement decisions of actors in the justice system, who start to depend on that revenue, and put their own job security above the job of doing individual justice.  As the Justice Department's report on Ferguson noted, city officials there asked the police and courts to increase ticket collection, explicitly to increase their revenue, basically treating minor criminal offenders as ATM machines.  This mistreatment is all the more troubling when the fees and fines land most heavily on racial minorities and the poor, as they routinely do...

The beneficiaries of the revenue hail from diverse and powerful institutions. Courts, crime labs, prosecutors, and even public defenders all see the dollar signs and make their requests.  What's the harm, after all, in asking for another $100 from an arrestee, convict, or probationer?

And it is not only government employees who have their hands out: private sector actors (with profit motives) have increasingly gotten a piece of the action. Courts, for instance, ask private contractors to collect fees and fines, allowing them to add their own service charges to the total bill.  Private companies, moreover, have been active in probation services. More recently, the American Legislative Exchange Council (or ALEC) started promoting a variation on this theme -- called "post-conviction bail" -- that empowers private bail bond dealers to monitor defendant compliance with post-release conditions. If the released inmate does not comply, the dealer tracks him down and collects a new financial penalty.

Any one of these fees or fines might be a reasonable part of a non-prison punishment, promoting public safety and the interests of defendants alike.  The trouble comes when nobody minds the total effects of all these fees on individuals.  Taken together, even the most modest and well-justified fees can trap the indigent in the control of criminal courts, always paying but never paying their debt down to zero.  We believe that a statewide Commission on Criminal Fees can see the big picture and prevent this piling-on effect. Before authorizing a new fee to support the state crime lab, for instance, the Commission would ask how that fee interacts with the public defender's application fee, the probation supervision fee, and all the other fees currently imposed on individuals ensnared in the justice system.

May 20, 2015 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Has death penalty administration now become a "testing ground for toxic drugs"?

The question in the title of this post is prompted by the subheadline of this lengthy new New Republic piece: "Lethal Entanglements: Lethal injection was supposed to be a cleaner, more humane version of capital punishement. Over the past five years, it has become a messy, largely unmonitored testing ground for toxic drugs."  Here are is a passage from the center of the lengthy article:

Lethal injection was first adopted in Oklahoma in 1977 as a less violent alternative to the gas chamber and the electric chair. Over the next 25 years, almost every death-penalty state copied Oklahoma’s three-drug formula: first the barbiturate sodium thiopental to knock the prisoner out, then the paralytic pancuronium bromide to immobilize him, and finally potassium chloride to stop his heart.  The second and third drugs would cause intense suffering on their own, but the Supreme Court ruled that the method was constitutional in Baze: As long as the thiopental rendered the prisoner unconscious, he would be insensate to the agonizing effects of the next two drugs.  Just one year after the Baze decision, though, in late 2009, the pharmaceutical company that sold thiopental to every death-penalty state, Hospira, reported a shortage.

As a consequence, the death penalty has undergone in the past five years its biggest transformation since states began switching to lethal injection decades ago.  As thiopental disappeared, states began executing prisoners with experimental one-, two-, or three-drug cocktails.  States have essentially been improvising what is supposed to be one of their gravest and most deliberate duties, venturing deep into the shadows to carry out executions.  They have turned to mail-order pharmaceutical suppliers and used untested drugs.  They have sidestepped federal drug laws, minimized public disclosure, and, on multiple occasions, announced changes to execution protocols just hours before prisoners were set to die.  The machinery of death in the United States has become a kluge.

In April, the Supreme Court acknowledged this when it heard oral arguments in Glossip v. Gross.  A group of prisoners from Oklahoma — including Richard Glossip, a convicted murderer — challenged the state’s use of a drug called midazolam because they feared it would not anesthetize them.  The court had hoped Baze would obviate future lethal injection lawsuits, but the thiopental shortage had stripped the decision of any practical relevance almost as soon as it was issued. Now, just seven years later, the justices were considering whether they should invalidate a specific method of execution for the first time in U.S. history.  The court’s decision won’t overturn the death penalty, but it will define the way we practice it for years to come.

Though the challenge comes from Oklahoma, it is Arizona that provides the best case study of the rapid, slipshod evolution of lethal injection since Baze. The desert state hasn’t executed the most prisoners since the thiopental shortage began — that distinction belongs, as always, to Texas — but it has used more methods than any other state, killing prisoners with four different drug combinations.  No other state has been quite so dogged in its determination to carry out executions. And no other state has left so detailed a paper trail.  Judges, lawyers, and journalists (most notably Michael Kiefer at The Arizona Republic) have brought much of the abuses to light over the years, but the story has been told in disparate pieces: a deposition here, an uncovered email there. The complete narrative is more troubling than any one of its components.

May 20, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

Tuesday, May 19, 2015

"NY Senate votes to create registry of violent felons"

The title of this post is the headline of this notable new AP article sent my way by a helpful reader.  Here are excerpts:

The New York state Senate has voted to create a public list of those convicted of violent felonies similar to the existing sex offender registry. The proposal is intended to prevent future crimes, and in particular domestic violence, by allowing people to check if a new acquaintance has a violent past.

The legislation is named Brittany's Law after Brittany Passalacqua, a 12-year-old from Geneva who was murdered in 2009 along with her mother by her mother's then boyfriend.  The boyfriend had a prior conviction for a violent felony.

Brittany’s grandmother, Dale Driscoll, remarked: “Words cannot express the gratitude my family and I have for Senator Nozzolio and his dedication and commitment to seeing ‘Brittany’s Law’ adopted into law.  The murder of my daughter and granddaughter devastated our family.  If this legislation prevents another family from suffering the loss we have experienced, then my daughter and granddaughter will not have died in vain. People should have the right to know if a person is a violent felon and I will continue to do everything I can to push this measure in the State Assembly.”...

The Senate passed the bill Monday.  Similar legislation is pending in the Assembly but no vote has been scheduled.

Critics argue a registry could stigmatize ex-offenders and make it harder for them to secure jobs and housing after they are released.

May 19, 2015 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack (0)

Notable sentencing and clemency comments from newly-confirmed Deputy Attorney General

I just came across this recent Washington Post profile of Sally Quillian Yates, the new number two at the Department of Justice.  The piece is headlined "New deputy attorney general: ‘We’re not the Department of Prosecutions’," and here are some notable excerpts:

The odds were stacked against lawyer Sally Quillian in her first trial in rural Barrow County, Ga. Before an all-white jury, she was representing the county’s first African American landowning family against a developer over a disputed title to six acres of land. The family was so distrustful of the court system back in the 1930s that they hadn’t recorded their deed.  Instead, the family’s matriarch kept the deed, written on cloth, folded inside her dress every day while she worked the fields.  Now, a developer was trying to take their property, and Quillian was arguing the case using an arcane legal theory.

“I had no idea what I was doing,” Quillian — now Sally Quillian Yates — recalled. “I had never tried a case before.”  But the jury came back with a verdict in favor of her client. “These 12 white jurors, who knew and went to church with and socialized with everybody on the other side, did the right thing,” said Yates, who was then at a private firm.  “This court system that my client’s family had mistrusted so much that they wouldn’t even file their deed had worked for them as it’s supposed to and had given them back the property that had been so important to their family all of these years.”

That case some 30 years ago had a deep impact on Yates, who went on to become a prosecutor in Atlanta for 20 years.  In 2010, President Obama nominated Yates to be the U.S. attorney for the Northern District of Georgia.  Last week, she was confirmed to be deputy attorney general , the second-highest-ranking position at the Justice Department.  A bottle of champagne still sits in her fourth-floor corner office, which overlooks Constitution Avenue and where senior officials celebrated her ­84-to-12 Senate vote....

One of Yates’s priorities will be to follow through with the criminal justice reform efforts begun by Attorney General Eric H. Holder Jr., including the push to give clemency to “nonviolent drug ­offenders” who meet certain criteria set out by the department last year, she said in her first interview since taking the job.

Yates and other prosecutors enforced the harsh sentencing policies from the 1980s and ’90s.  “Those policies were enacted at a time of an exploding violent-crime rate and serious crack problems,” Yates said.  “They were based on the environment we were in. But things have changed now, and violent crime rates have dropped dramatically.”

More than 35,000 inmates are seeking clemency, but a complicated review process has slowed the Obama administration’s initiative.  In February, Obama commuted the sentences of 22 drug offenders, the largest batch of prisoners to be granted early release under his administration and the first group of inmates who applied after the new criteria were set.

“Certainly, there’s some growing pains at the beginning,” Yates said.  “There’s start-up time involved in this. I think all of us are frustrated that it’s taken longer than we would like for this to be operating as efficiently as possible.  But I think we are headed down that road now. There are going to be more recommendations from the department, and I would expect more commutations that the president will be issuing.”...

Yates commutes every other weekend to Atlanta to be with her husband, who is the director of a school for children with learning disabilities, and to plan the wedding of her 24-year-old daughter, the older of two children.  She said the back-and-forth is worth the opportunity to influence criminal justice issues, including civil rights and sentencing reform, at the highest level.

She plans to urge lawmakers on Capitol Hill to pass legislation to change sentencing policies. “Certainly, I don’t think I can ever be accused of being soft on crime,” Yates said. “But we need to be using the limited resources we have to ensure that we are truly doing justice and that the sentences we’re meting out are just and proportional to the crimes that we’re charging.”

“We’re not the Department of Prosecutions or even the Department of Public Safety,” Yates said. “We are the Department of Justice.”

May 19, 2015 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Debate over harms of online drug market now at center of upcoming sentencing of Silk Road creator Ross Ulbricht

As reported in this Wired piece, headlined "Ahead of Sentencing, Ulbricht Defense Argues Silk Road Made Drug Use Safer," the defense in a notable drug sentencing case is making a notable new claim about the nature and consequences of the defendant's drug dealing methods.  Here are the details:

When a jury convicted Ross Ulbricht three months ago of running the Silk Road, it closed the legal question of whether he was guilty of masterminding that billion-dollar online black market for drugs. But as Ulbricht’s sentencing approaches, his defense is opening another ethical question that may be far more societally important: Did the Silk Road’s newly invented method of narcotics e-commerce actually reduce the risks of drug use?

In a memo to judge Katherine Forrest filed Friday afternoon, Ulbricht’s defense has asked her to consider the Silk Road’s potential for “harm reduction” when she determines Ulbricht’s sentence in less than two weeks.  The memo argues that the Silk Road’s community provided drug users a more reliable way to buy untainted drugs, that Ulbricht had expressly tried to encourage “safer” drug use on his black market site, and that the digital nature of the site’s commerce may have protected users from physical interactions that in the traditional drug trade often lead to violence.

“In contrast to the government’s portrayal of the Silk Road web site as a more dangerous version of a traditional drug marketplace, in fact the Silk Road web site was in many respects the most responsible such marketplace in history, and consciously and deliberately included recognized harm reduction measures, including access to physician counseling,” writes Ulbricht’s lead defense attorney Joshua Dratel in the filing.  “In addition, transactions on the Silk Road web site were significantly safer than traditional illegal drug purchases, and included quality control and accountability features that made purchasers substantially safer than they were when purchasing drugs in a conventional manner.”

The memo argues that the Silk Road’s community provided drug users a more reliable way to buy untainted drugs.  One of the Silk Road’s innovations, after all, was to bring an eBay-like system of ratings and reviews for online drug sales.  That system gave buyers a way to quickly weed out dealers selling lower quality or less pure substances. The site maintained a section of its user forum devoted to safer drug use, where users could ask each other for advice and help with health problems.  And Ulbricht’s defense points to archived messages showing that Ulbricht even offered at one point to pay $500 a week to a Spanish doctor, Fernando Caudevilla, who frequented the forum and answered users’ questions.  Ulbricht also asked Caudevilla if he’d be willing to chemically test drugs on the site for quality, though it’s not clear if that testing scheme was ever put into practice.

Regardless, Ulbricht isn’t likely to receive a light sentence.  The 31-year-old Texan was convicted of seven felony charges in February that include conspiracies to traffic in narcotics and money laundering, as well as a “kingpin” statute reserved for the leaders of organized criminal operations, which could add another decade to his prison time.  In all, he faces a minimum of 30 years in prison and a maximum of life.  Ulbricht’s defense team has already said it plans to appeal the case.

The prosecution in Ulbricht’s case has revealed that it plans to present at Ulbricht’s sentencing hearing six cases of individuals who died from overdoses of drugs bought on the Silk Road.  But in its Friday filing, the defense addressed and rebutted each of those examples. In a grisly section of a separate memo, it goes through the details of those six deaths, in each case arguing that the deceased suffered from earlier health conditions and questioning whether the death-inducing drugs had actually been bought from vendors on the Silk Road. “It is simply impossible for the government to prove that drugs obtained from Silk Road ‘caused’ death, and in certain cases, the government cannot even establish to any degree of certainty that any of the drugs ingested came from Silk Road,” Dratel writes....

To bolster its argument about the societal benefits of the Silk Road, the defense includes in its filing sworn statements from a series of experts, including Tim Bingham, the administrator of an addiction-focused non-profit known as the Irish Needle Exchange Forum, and Meghan Ralston, the former director of harm reduction for the Drug Policy Alliance.  Bingham, for instance, published three studies in the International Journal of Drug Policy about the Silk Road based on surveys of users.  He writes in his statement that he “concluded that Silk Road forums…appeared to act as an information mechanism for the promotion of safer and more acceptable or responsible forms of recreational drug use.”

The full text of this Ulbricht Sentencing Defense Letter can be accessed at this link.

Prior related posts:

May 19, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack (0)

Some recent posts of note from Marijuana Law, Policy and Reform

I have not recently done in this space a round-up of posts of note from Marijuana Law, Policy and Reform in a few weeks. Here is an abridged listing of MLP&R posts that might be of special interest to sentencing fans: 

May 19, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Is a former lobbyist and former federal prisoner likely to be a uniquely good sentencing reform advocate?

The question in the title of this post is prompted by this notable new CQ Roll Call article headlined "Out of Prison, Ex-Lobbyist Pushes Sentencing Overhaul." Here are excerpts:

Kevin Ring helped write a bill in the 1990s that toughened penalties for methamphetamine charges. Now, recently out of prison, the former Team Abramoff lobbyist says he wants Congress to overhaul the nation’s justice system and to undo mandatory minimum requirements altogether.

His own effort comes at a pivotal time for the issue on Capitol Hill, where bipartisan measures (S 502, HR 920) to reduce stiff sentencing requirements for drug charges appear to be gaining some traction.

Ring, a former Hill aide, is wrapping up his 20-month sentence for an honest services fraud conviction by serving home confinement that allows him to work in downtown Washington, D.C. He is drawing on his K Street and criminal justice experiences at Families Against Mandatory Minimums, an advocacy group devoted to peeling back the same sort of laws he helped push through while serving as a Senate Judiciary Committee staffer.

“We wanted to look tough on meth,” said Ring, a Republican, who recently started working full-time as FAMM’s new director of strategic initiatives. “The Hill is run by too many 20-year-olds with a lot of opinions and not enough experience, and I was part of that. I didn’t have enough experience to write criminal statutes. What did I know?”

Ring is a former colleague of ex-K Street power player Jack Abramoff, and like Abramoff he went to the federal prison camp in Cumberland, Md. Ring started working with FAMM part-time five years ago, doing grant writing. He’d already lost two jobs at K Street firms amid the unraveling Abramoff scandal, and he needed work. He had to terminate all outside employment during his prison term.

“When he first interviewed with us, he was incredibly humble, hat in hand, and said, ‘I’m about to be indicted,’” recalled Julie Stewart, FAMM’s president and founder and a self-described libertarian. “I immediately realized what an incredible gem we had in Kevin because of his conservative background. It was very clear to me that Kevin could do so much good for FAMM and for our issue and promoting it in a voice that could really be heard by the people we were trying to influence on the Hill.” FAMM, she noted, is a rare organization that gets funding from conservative David Koch and liberal George Soros.

Ring, 44, said he doesn’t expect he will meet the legal definition of a lobbyist at FAMM, but he intends to write op-eds, congressional testimony and advocacy letters. In short, he plans to influence the process largely from the background. It's not likely to be an easy sell.

Even as the White House and Republicans on the Hill, including Sen. Mike Lee of Utah and Rep. Raúl R. Labrador of Idaho, are championing sentencing overhaul legislation, such proposals are far from a fait accompli. Senate Judiciary Chairman Charles E. Grassley of Iowa has pushed back on criticism that he is blocking sentencing legislation, but he’s made clear his support would come with a price....

Grassley, in a recent speech at the Press Club, said white-collar criminals such as Ring receive "paltry sentences." He has suggested such criminals ought to be subject to mandatory minimums in exchange for reduced minimums for nonviolent drug offenders. "The last thing we need is to take away a tool that law enforcement and prosecutors use to get the bad guys," Grassley said.

His spokeswoman, Beth Levine, said Grassley’s staff and aides to the lawmakers pushing for sentencing legislation “have been sitting down to work something out.”

FAMM, as well as Ring, opposes new mandatory minimum requirements for white-collar crimes. “It’s an awful, awful idea,” Ring said during an interview last week in FAMM’s offices near Metro Center. “Even without mandatory minimums, prosecutors can threaten you with such a long sentence that you want to plead guilty.”

He said the mandatory minimums have inflated sentencing guidelines across crimes, even those not subject to mandatory sentences. In Ring’s case, prosecutors asked the judge to sentence him to at least 20 years in prison. He said even his current home confinement, which includes a GPS ankle tracker to monitor his location 24 hours a day, is surprisingly restrictive and ought to be used more for nonviolent offenders — keeping them out of the prison system and allowing them to continue to work, pay taxes and care for their children.

It’s a message that resonates with budget-conscious Republicans, especially those with a libertarian stance. Stewart, who started FAMM 24 years ago, when her brother went to federal prison for growing marijuana in Washington state, said the current conversation on Capitol Hill and across the country is unprecedented. “My one fear is that talk is cheap,” she said. “It’s going to be a push.”

And Ring will be right in the middle of it. “I believed it before, and now I just feel like I’m better informed for having had the experience,” Ring said. “You know I wouldn’t wish the experience on anyone, but now that I have it, I feel compelled to say what I saw. So that goes to not only how prosecutions work, how sentencing works, but then also how prisons work or don’t work.”

May 19, 2015 in Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

Monday, May 18, 2015

Deterrence, jurisdiction and the death penalty after many murders in Waco bar brawl

The title of this post are the topics I am now thinking about inspired by this lengthy news article, headlined "Capital murder charges expected in Waco biker shootout," discussing possible charges in the aftermath of a bloody bar fight.  Here are excerpts (with my emphasis added):

The unprecedented, deadly biker gang violence on display Sunday at the Twin Peaks restaurant in Waco, Texas, has led to mass arrests, massive bail figures, the specter of numerous death penalty cases, the likely shuttering of a business, and an irate police force who said they did everything they could to stop it.

About 170 motorcycle gang members charged with engaging in organized crime are each being held on a $1 million bond in the wake of the shootout in Waco that left at least nine dead and 18 injured, and authorities say capital murder charges are expected....

While they haven't been filed yet, capital murder charges open the possibility that prosecutors will seek the death penalty for some of the suspects, in a state that puts far more inmates to death annually than all others....

Waco Police Sgt. W. Patrick Swanton said while capital murder charges are likely, it's too early to determine how many motorcycle gang members will face the charge.

The head of the Texas Department of Public Safety says the violence that unfolded in Waco when rival motorcycle gangs opened fire on each other in a restaurant parking lot is unprecedented. The shootout erupted shortly after noon at a busy shopping center where members of at least five rival gangs had gathered for a meeting. DPS Director Steve McCraw, a former FBI agent, said Monday that the shootout Sunday was the first time "we've seen this type of violence in broad daylight."...

Police and the operators of Twin Peaks - a national chain that features waitresses in revealing uniforms - were aware of the meeting in advance and at least 12 Waco officers, in addition to state troopers, were outside the restaurant when the fight began, Swanton said. As a result, the whole incident, involving an estimated 100 guns in total, "happened very fast," Swanton said. "We were there within seconds, meaning within 35 to 40 seconds," Swanton said.

So far, officials have admitted that some of the bikers were shot by police, but have not said whether or not any of those killed died as a result of police gunfire....

The interior of the restaurant was littered with bullet casings, knives, bodies and pools of blood, he said. Authorities were processing the evidence at the scene, south of Dallas. About 150 to 200 bikers were inside during the shootout. "I was amazed that we didn't have innocent civilians killed or injured," Swanton said.

Parts of downtown Waco were locked down, and officials stopped and questioned motorcycle riders. Agents from the FBI and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives were assisting local and state authorities. McLennan County Sheriff Parnell McNamara, whose office is involved in the investigation, said all nine who were killed were members of the Bandidos or Cossacks gangs.

In a 2014 gang threat assessment, the Texas Department of Public Safety classified the Bandidos as a "Tier 2" threat, the second highest. Other groups in that tier included the Bloods, Crips and Aryan Brotherhood of Texas. The Bandidos, formed in the 1960s, are involved in trafficking cocaine, marijuana and methamphetamine, according to the U.S. Department of Justice....

Swanton said the local biker gangs have little regard for law enforcement, which is why they did not hesitate to start a shootout with uniformed officers in plain sight. "They could care less whether we were here or not," Swanton said. "That's the violence we were dealing with."

I think almost everyone knows or should know that Texas is the state most likely to impose and carry out a death sentence in the United States. Thus, it sure appears that Texas's notable death penalty track record had no deterrent effect on the folks with guns and knifes involved in this carnage.

Especially with the stories of drug trafficking and gang threats on local police, I also think this case seems almost to cry out for federal intervention. Thus, I think it will be interesting to watch just which jurisdiction (state or federal) takes the lead on charges (both capital and noncapital) in this stunning crime story.

May 18, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

DC Circuit on child porn and sentencing manipulation and nonfrivolous arguments (aka departures and variances and Booker, oh my!)

I sometime consider Washington DC to be a land like Oz where weird, and sometimes magical, sometimes scary, sometimes bizarre, events can transpire.  Thus, when reading the DC Circuit's recent  opinion in US v. Bigley, No. 12-3022 (DC Cir. May 15, 2015) (available here), I kept hearing Dorothy's voice as the opinion twisted and turned through a variety of notable sentencing issues in the dark Booker forest.  Here is how the per curiam opinion gets started:

Before United States v. Booker, 543 U.S. 220 (2005), rendered the U.S. Sentencing Guidelines advisory, we forbade district courts from relying on sentencing manipulation as a basis for mitigation.  See United States v. Walls, 70 F.3d 1323, 1329–30 (D.C. Cir. 1995).  But Booker and its offspring fundamentally changed the sentencing calculus, requiring courts to now consider any mitigation argument related to the sentencing factors contained in 18 U.S.C. § 3553(a) when imposing a sentence within the statutory range of punishment. See Pepper v. United States, 131 S. Ct. 1229, 1241–48 (2011); Kimbrough v. United States, 552 U.S. 85, 101–02 (2007); Rita v. United States, 551 U.S. 338, 357 (2007). A sentencing court, post-Booker, must consider nonfrivolous arguments for mitigation, even if those arguments were previously prohibited under the mandatory guidelines regime. Because the district court failed to consider a nonfrivolous claim of sentencing manipulation when it pronounced its sentence, we vacate the sentence and remand.

Notably, the full opinion for the DC Circuit panel here does not quite say that a district court always has an obligation to address expressly a nonfrivolous argument raised by the defendant. Judge Rogers concurs separately to advocate such a holding by the circuit:

“Sentencing is a responsibility heavy enough without our adding formulaic or ritualized burdens.” United States v. Cavera, 550 F.3d 180, 193 (2d Cir. 2008).  I am not indifferent to concerns about saddling busy district courts with more procedural loads and I appreciate this court’s reluctance.  But the burden of providing a brief explanation is small and the advantages great.  “Most obviously, [an explanation] requirement helps to ensure that district courts actually consider the statutory factors and reach reasoned decisions.” Id. at 193; see also In re Sealed Case, 527 F.3d 188, 192 (D.C. Cir. 2008) (“The requirements that a sentencing judge provide a specific reason for a departure and that he commit that reason to writing work together to ensure a sentence is well-considered.”).  It also promotes the “perception of fair sentencing,” Gall, 552 U.S. at 50, and “helps the sentencing process evolve by informing the ongoing work of the Sentencing Commission,” Cavera, 550 F.3d at 193. When a sentencing court responds to a defendant’s arguments, it “communicates a message of respect for defendants, strengthening what social psychologists call ‘procedural justice effects,’ thereby advancing fundamental purposes of the Sentencing Reform Act.” See Michael M. O’Hear, Explaining Sentences, 36 FLA. ST. U. L. REV. 459, 472 (2009). The requirement also assures an adequate record with which we can conduct “meaningful appellate review.” Gall, 552 U.S. at 50. I would join the majority of circuits in holding district courts should address a defendant’s nonfrivolous argument for a variance from the Guideline range.

Though the formal ruling and the discussion of sentencing procedural are surely the most consequential aspects of this Bigbey ruling, I cannot overlook or fail to comment on the case facts and on how the remarkable severity of the federal child porn guidelines shaped the entire sentencing dynamic of this case. Here is the sad and remarkable (guideline) tale: The defendant in this case was charged and pled guilty to "one count of interstate travel with intent to engage in illicit sexual conduct with a minor" after he drove to DC to hook up with a (fictional) 12-year-old daughter of a friend of an (undercover) agent chatting on-line. At the suggestion of the agent, the defendant bought a digital camera with him on his trip to DC for taking pictures of the girl, which had this impact in the calculation of the guideline range:

When the probation office calculated his advisory sentencing guideline range, it employed the Section 2G1.3(c)(1) cross-reference guideline provision, which requires the application of Section 2G2.1 when an offense involves “causing, transporting, permitting, or offering . . . a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” U.S.S.G. § 2G1.3(c)(1). By applying Section 2G2.1, Bigley’s base offense level increased from 24 to 32, which, when the other guideline calculations were made, boosted his sentence guideline range from 46 to 57 months to 135 to 168 months of imprisonment.

In other words, because (and only because) the defendant was talked into bringing a digital camera on his illegal child booty-call trip, his recommended guideline sentence shot up from 4-5 years to 12-14 years. I have heard of some severe gun-possession sentencing enhancements, but I have never seen such a severe camera-possession sentencing enhancement.  Perhaps the NRA (the Nikon Rights Association) should consider filing an amicus brief at the resentencing.

May 18, 2015 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack (0)

NY Times editorial astutely praises "Justice Reform in the Deep South"

Throughout too much of America's history, the term "Southern Justice" would invoke shudders and fear. (Indeed, as discussed here, Norman Rockwell used this term as the title for his historic painting depicting the deaths of three civil rights workers killed for seeking to register African American voters.) But, as effectively highlighted by this new New York Times editorial, lawmakers in the deep south are lately doing a lot to remake the image of southern justice:

It has been getting easier by the day for politicians to talk about fixing the nation’s broken criminal justice system. But when states in the Deep South, which have long had some of the country’s harshest penal systems, make significant sentencing and prison reforms, you know something has changed.

Almost all of these deep-­red states have made changes to their justice systems in the last few years, and in doing so they have run laps around Congress, which continues to dither on the passage of any meaningful reform.  Lawmakers in Alabama, for example, voted nearly unanimously early this month to approve a criminal justice bill.  Alabama prisons are stuffed to nearly double capacity, endangering the health and lives of the inmates, and the cost of mass imprisonment is crippling the state budget at no discernible benefit to public safety.

The bill would cut the state’s prison population of nearly 25,000 by about 4,500 people over the next five years. Sentences for certain nonviolent crimes would be shortened, and more parole supervisors would be hired to help ensure that people coming out of prison don’t return. Gov. Robert Bentley is expected to sign the measure as soon as Tuesday.

Before Alabama, South Carolina passed its own package of reforms in 2010.  In February, it closed its second minimum-­security prison in a year.  Georgia got on board with significant reforms to its adult and juvenile prison systems in 2012 and 2013, including giving judges more leeway to sentence below mandatory minimums and increasing oversight of prisons.  In 2014, Mississippi passed its own systemic fixes, like providing more alternatives to prison for low­level drug offenders.

Of course, all these states had abysmal conditions to start with. Mississippi imprisons more of its citizens per capita than China and Russia combined. That’s worse than any state except Louisiana, which has not yet managed reforms as broad as its neighbors. Alabama was facing the threat of federal intervention to alleviate its crushingly overcrowded prisons if it didn’t act.  And many of these state reforms are far more modest than they should be....

Nonetheless, these initiatives show important progress. Less than a decade ago, it was difficult to find any governor anywhere, of either party, who would go near this issue. Now, a Republican governor like Nathan Deal of Georgia is pointing with pride to two major reform packages, as well as the state’s “ban the box” law, which prohibits the state from asking potential employees about their criminal history until later in the hiring process.

Still, justice reform is a fragile proposition, and can be easily thwarted by more powerful political forces.  As the 2016 presidential election approaches, most of the major candidates agree that criminal­justice reform is a priority, but there remains a good deal of ambivalence on how to move forward.  There needn’t be.  The reforms in the southern states, though limited, are already paying off.  The presidential candidates — not to mention Congress — should be paying close attention.

May 18, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Six new SCOTUS opinions, but nothing too exciting for sentencing fans

The next six weeks are the SCOTUS law nerds version of March Madness: the regular SCOTUS season of hearing oral arguments and deciding relatively easy cases are over, and the last weeks of the Term are going to involve the handing down of many notable opinions on many notable topics.  The madness began today with the release of six opinions, three of which had criminal justice elements, but none of which were all that controversial nor especially consequential.

Howard at How Appealing has a great round-up of the basics of the six new opinions here, and Kent at Crime & Consequences has this helpful substantive review of the three rulings with some criminal justice consequence.

For those looking to set their (always tentative) SCOTUS calendars, I will predict now that we get the Elonis Facebook threat ruling either next Tuesday or the following Monday but will not get any other significant criminal justice ruling until the last few weeks of June.

May 18, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Sunday, May 17, 2015

"Does Michigan's sex offender registry keep us safer?"

B9317136721Z.1_20150516190456_000_G8HANTDOK.1-0The question in the title of this post is the headline of this lengthy new Detroit Free Press article. The piece carries this subheadline: "Experts say such registries can be counterproductive; courts question constitutional fairness." Here are excerpts of a must-read piece for any and everyone concerned about the efficacy of sex offender regulations:

It has been 10 years since Shaun Webb, a married father and caretaker at an Oakland County Catholic church, was convicted of groping a teenage girl over her sweater, a claim Webb vehemently denies.  Webb, then-37 with a clean criminal record, was convicted of misdemeanor sexual assault and sent to jail for seven months.

Though a misdemeanor, state law demanded Webb be listed on the same public sex offender registry as hard-core rapists, pedophiles and other felons.  It has meant a decade of poverty, unemployment, harassment and depression for him. Under current state law, he'll be on the list until 2031.  "It's destroyed my life," Webb said from his rural home in Arenac County, where he now lives alone with his dog, Cody.

Webb is one of 43,000 convicted sex offenders in Michigan, most of which appear on the state online sex offender registry managed by the State Police.  Each state has a digital registry that can be searched on the Internet with a total of about 800,000 names.  The registries are widely monitored by parents, potential employers and cautious neighbors.

To be sure, registries in Michigan and across the nation help track violent sexual offenders and pedophiles who prey on children, and they're also politically popular and get lots of traffic online.  But Michigan's law — and some others across the nation — have come under fire lately as overly broad, vague and potentially unconstitutional.  For example, Michigan has the fourth-highest per capita number of people on its registry and is one of only 13 states that counts public urination as a sex crime.

Research also suggests registries do little to protect communities and often create ongoing misery for some who served their sentences and are unlikely to re-offend....

Even some early advocates have changed their minds about registries, including Patty Wetterling, the mother of Jacob Wetterling, who went missing when he was 11 and was never found. Police suspect Jacob was abducted by a convicted pedophile who was living nearby unbeknownst to neighbors.  No one was charged.

At the time, Wetterling lobbied passionately for a federal law authorizing registries and was at the White House in 1994 when President Bill Clinton signed legislation into law.  But she now advocates revisiting the laws, saying some juveniles and others who made mistakes are unnecessarily tarred for decades or life.  "Should they never be given a chance to turn their lives around?" she said in a published 2013 interview. "Instead, we let our anger drive us."

But some legislators and law enforcement officials say registries are useful because they help keep track of potentially dangerous people.  The supporters also dismiss the research, saying it's impossible to determine who might re-offend.  They caution against narrowing the definition in Michigan's law of who should be listed and are against adopting a new recommendation by some that defendants should be judged case by case by who is most likely to re-offend.

"The problem I have is should we go back and say only pedophiles have to register?" said state Sen. Rick Jones, a former sheriff who helped draft some of Michigan's sex offender registry laws. "Do we want violent sex offenders on the school grounds? Do we want public masturbators on the school grounds? I'm not prepared to change the way the list operates."

Many parents say the registries makes them feel safer.  Lori Petty, a legal secretary, has been logging on regularly over the years as she raised her two sons in Commerce Township. "If they were going over to a friend's house to visit, I would look to see who lived nearby, if there was a high concentration," she said. "Not that there was anything I could do, but it helps to know."  Her sons are now 18 and 25, and she monitors the site less frequently, using it to see who may have moved close by, she said. "I want to know who is living in my neighborhood."

Sex offender registry laws were first passed in the 1990s following a string of horrific child murders.  The registries were originally accessible only by police, allowing them to track the most dangerous offenders. But lawmakers in Michigan and other states expanded the laws over the years — they are now public record and include teenagers who had consensual sex, people arrested for public urination, people who had convictions expunged at the request of their victims, and people like Webb who have no felony convictions.

Earlier this month, a Florida couple was convicted of lewd behavior after having consensual sex on a public beach. They will have to register as sex offenders for the rest of their lives.  In Michigan, most of those convicted of sex offenses are listed online and show up with just a few key strokes on a website managed by the Michigan State Police....

Convicted sex offenders don't generate much public sympathy, but research in the last two decades shows they might not be very effective.  And higher courts recently called registries harsh and unconstitutional, including a ruling last month that says parts of Michigan's law are vague and unconstitutional, making it impossible in some instances for offenders to know whether they are following the law.  For many, there is also a question of fundamental fairness when, for example, a 19-year-old is convicted of having sex with his underage girlfriend or somebody convicted of public urination is grouped on the same list as a serial rapist.

Despite the court rulings and the research, it's doubtful public sex offender registries are going away, although it seems apparent Michigan and other states might be pushed into making some changes.  A big question, though, is whether Michigan's expansive definition of who should be on the sex offender registry is fair to people like Webb....

Nationally, there are about 800,000 people registered as sex offenders across the 50 states.  Michigan is particularly aggressive, ranking fourth in the nation with the number of offenders on the registry, following only California, Texas and Florida. It also ranks fourth per capita, with 417 registrants per 100,000 citizens.  It is one of only 13 states that count public urination as a sex crime, although two convictions are required before registration. And Michigan continues to require registration for consensual sex among teenagers if the age difference is greater than four years....

Michigan legislators are reviewing [the recent federal court] ruling and considering reforming the laws to make them compliant.  Some, though, think tougher laws are in order.  And they dismiss critics who say the registries cause unnecessary misery to those who have already served their sentences. "I say if you do the horrible rape, or if you have sex with a child, you deserve the consequences," said state Sen. Rick Jones, who helped draft some of Michigan's sex offender registry laws.

Jones questions the research that shows sex offenders are much less likely to re-offend and that the majority of those on the registry pose no threat. "I have 31 years of experience in police work, and as a retired sheriff in Eaton County I formed some very strong opinions that the science is still not clear for pedophiles. I believe it is society's duty to keep pedophiles from children so that the temptation isn't there. So I say you need to stay a thousand feet from schools."

A 2010 study by the American Journal of Public Health, examining sex offender laws nationwide and the best way to reduce recidivism, noted: "Research to date indicates that after 15 years the laws have had little impact on recidivism rates and the incidence of sexually based crimes. " Instead, the study found, "The most significant impact of these laws seems only to be numerous collateral consequences for communities, registered sex offenders — including a potential increased risk for recidivism — and their family members."

J.J. Prescott, a law professor at the University of Michigan and a nationally recognized expert on sex offender registry laws, agrees.  He has done statistical analysis of the impact the laws have on crime rates. "I believe that if a sex offender really wants to commit a crime, these laws are not going to be particularly effective at stopping him," he said, noting that there is no evidence that residency restrictions or "school safety zones" have had any positive impact on the rate of sexual assault on children, according to studies nationwide....

While his research also shows that the mere threat of having to publicly register may deter some potential offenders from committing their first crime, this effect is more than offset in states with large registries by higher levels of recidivism among those who have been convicted.

May 17, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (15) | TrackBack (0)

After reversal of most serious charges, elderly nun and fellow peace activists released from federal prison

As reported in this AP article, headlined "3 anti-nuclear activists released from federal prison," a notable federal civil disobedience case has taken some notable new turns this month. Here are the details:

An 85-year-old nun and two fellow Catholic peace activists who vandalized a uranium storage bunker were released from prison on Saturday, their lawyer said.  Attorney Marc Shapiro says Sister Megan Rice was released just hours after 66-year-old Michael Walli and 59-year-old Greg Boertje-Obed also were let out of prison.

The trio was ordered released by a federal appeals court on Friday.  The order came after the 6th U.S. Circuit Court of Appeals in Cincinnati last week overturned their 2013 sabotage convictions and ordered resentencing on their remaining conviction for injuring government property at the Y-12 National Security Complex in Oak Ridge.

The activists have spent two years in prison.  The court said they likely already have served more time than they will receive for the lesser charge.

On Thursday, their attorneys petitioned the court for an emergency release, saying that resentencing would take weeks if normal court procedures were followed.  Prosecutors responded that they would not oppose the release, if certain conditions were met. "They are undoubtedly relieved to be returning to family and friends," said Shapiro, who represented the activists in their appeal.

Rice, Walli and Boertje-Obed are part of a loose network of activists opposed to the spread of nuclear weapons.  To further their cause, in July 2012, they cut through several fences to reach the most secure area of the Y-12 complex.  Before they were arrested, they spent two hours outside a bunker that stores much of the nation's bomb-grade uranium, hanging banners, praying and spray-painting slogans....

Rice was originally sentenced to nearly three years and Walli and Boertje-Obed were each sentenced to just over five years.  In overturning the sabotage conviction, the Appeals Court ruled that their actions did not injure national security.

Boertje-Obed's wife, Michele Naar-Obed, said in a phone interview from her home in Duluth, Minnesota, she hoped her husband would be released from prison by Monday, which will be his 60th birthday.  Naar-Obed previously served three years in prison herself for anti-nuclear protests.  She said that if their protests open people's minds to the possibility of life without nuclear weapons, then "yeah, it was worth it."

Prior related posts:

May 17, 2015 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack (0)

Saturday, May 16, 2015

"Towards a Theory of Mitigation"

The title of this post is the title of this new paper on SSRN co-authored by me and Carissa Hessick. Carissa is rightly the first name on the article, as she did most of the hard (and good) work, and I am grateful for being able to come along for the ride. Here is the abstract:

Criminal sentencing was once an exercise in rehabilitation — judges imposed sentences on defendants based on their estimation of how likely a defendant was to reform her lawless ways and avoid committing future crime.  The rehabilitative model of sentencing was largely abandoned in the late twentieth century, and it has yet to be replaced by another theory of punishment.  The failure to replace rehabilitation with another theoretical approach has contributed to a dearth of mitigation in modern sentencing.

This Article seeks to restore mitigation to a prominent role in modern sentencing.  First it provides an account of mitigation consensus. Using a comprehensive survey of state sentencing statutes and guidelines, as well as surveys of judges and public opinion, the Article identifies eight mitigating factors that, if present, should always result in a mitigated sentence.  Second, the Article offers a theoretical approach to sentencing mitigation. Drawing on the mitigation consensus, the parsimony principle, and theories of limited government, the Article proposes that judges should impose less severe sentences whenever any of the prevailing punishment theories would support a reduction.

May 16, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (5) | TrackBack (0)

Friday, May 15, 2015

Capital jury concludes character of crime matters most in death sentencing of Boston bomber

I was on the links on a lovely spring afternoon when this news broke (via CNN): "Boston Marathon bomber Dzhokhar Tsarnaev sentenced to death."  As the title of this post highlights and as I suggested in some prior posts, I long thought the sentencing in this case came down to whether the jury was concerned more about the horrific crime that Tsarnaev committed or about the explanations of his background emphasized by the defense.  In the end, it appears that the crime prevailed.

Lots of notable commentary about the notable sentencing verdict can already be found at Crime & Consequences:

UPDATE: Detailed post-verdict commentary keeps coming from Bill Otis at Crime & Consequences, who is obviously quite energized by the jury's condemnation of the Boston bomber:

May 15, 2015 in Death Penalty Reforms | Permalink | Comments (19) | TrackBack (0)

Spectacular work on sex offender registration rules and other "collateral" stories at CCRC

Regular readers surely recall me highlighting all the great work still being done regularly over at the Collateral Consequences Resource Center.  The newest post by Margy Love there, "50-state survey of relief from sex offender registration," demostrates why CCRC must be a regular read for all would-be criminal justice fans.  Here is how it gets going:

We have prepared a new 50-state chart detailing the provisions for termination of the obligation to register as a sex offender in each state and under federal law.  This project was inspired by Wayne Logan’s recent article in the Wisconsin Law Review titled “Database Infamia: Exit from the Sex Offender Registries,”discussed on this site on April 15.  The original idea of the project was simply to present Professor Logan’s research in the same format as the other 50-state charts that are part of the NACDL Restoration of Rights Resource, supplementing it as necessary.  But getting all of the state laws condensed into a few categories turned out to be a considerably more complex task than we imagined, in part because we had to fill in a lot of gaps, and in part because of the extraordinary variety and complexity of the laws themselves.

We present it here as a work in progress in the hope that practitioners and researchers in each state will review our work and give us comments to help us make the chart most helpful to them and to affected individuals.

It is risky to try to generalize about the results of our study,  However, we found that registration laws seem to fall into three general categories:

  • 18 states provide a single indefinite or lifetime registration period for all sex offenses, but a substantial portion of these allow those convicted of less serious offenses to return to court after a specified period of time to seek removal;
  • 19 states and the District of Columbia have a two-tier registration system, which requires serious offenders and recidivists to register for life but automatically excuses those convicted of misdemeanors and other less serious offenses from the obligation to register after a specified period of time, typically 10 years;
  • 13 states and the federal system have a three-tier system, requiring Tier III offenders to register for life, and Tier I and Tier II offenders to register for a term of years, generally 15 and 25 years. 

And these other new posts from CCRC recently highlight the critical work being done at CCRC on topics beyond sex offender registration realities:

May 15, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack (0)

"America’s Deadliest Prosecutors"

150512_JURIS_deadliestprosecutors.jpg.CROP.original-originalThe title of this post is the main headline of this notable new Slate piece, which highlights the central role that different prosecutors can and do play in the administration of the death penalty.  Here are excerpts:

“I think we need to kill more people,” Dale Cox, a prosecutor in Caddo Parish, Louisiana, said recently. He was responding to questions about the release of Glenn Ford, a man with Stage 4 lung cancer who spent nearly three decades on death row for a crime he did not commit. Cox acknowledged that the execution of an innocent person would be a “horrible injustice.” Still, he maintained of the death penalty: “We need it more now than ever.”

Cox means what he says. He has personally secured half of the death sentences in Louisiana since 2010. Cox recently secured a death sentence against a father convicted of killing his infant son, despite the medical examiner’s uncertainty that the death was a homicide. Rather than exercising caution in the face of doubt, Cox told the jury that, when it comes to a person who harms a child, Jesus demands his disciples kill the abuser by placing a millstone around his neck and throwing him into the sea.

The nation suffered more than 10,000 homicides last year, yet only 72 people received death sentences — the lowest number in the modern era of capital punishment. The numbers have been steadily declining for the better part of a decade. Most states are abandoning the practice in droves. Even in states that continue its use, capital prosecutions are being pursued in only a few isolated counties.

What distinguishes these counties from neighbors that have mostly abolished the death penalty, in fact if not in law? Perhaps the biggest factor is the presence of a handful of disproportionately deadly prosecutors who represent the last, desperate gasps of a deeply flawed punishment regime. Most of their colleagues are wisely turning away from a practice that has revealed itself to be ineffective at deterring crime, obscenely expensive, inequitably administered, and not infrequently imposed upon the innocent. But America’s deadliest prosecutors continue to pursue death sentences with abandon, mitigating circumstances and flaws in the system be damned.

Cox is one of them.  Jeannette Gallagher of Maricopa County, Arizona, is another. She and two colleagues are responsible for more than one-third of the capital cases — 20 of 59 — that the Arizona Supreme Court reviewed statewide between 2007 and 2013.  Gallagher recently sent a 19-year-old with depression to death row even though he had tried to commit suicide the day before the murder, sought treatment, and was turned away. She also obtained a death sentence against a 21-year-old man with a low IQ who was sexually abused as a child, addicted to drugs and alcohol from a young age, and suffered from post-traumatic stress disorder.  She then sent a U.S. military veteran with paranoid schizophrenia to death row.  Her response to these harrowing mitigating circumstances has not been to exercise restraint, but rather to accuse each of these defendants of simply faking his symptoms.  The Arizona Supreme Court has found misconduct in three of her cases, labeling her behavior as “inappropriate,” “very troubling,” and “entirely unprofessional.”...

Meanwhile, in Duval County, Florida, Bernie de la Rionda has personally obtained 10 death sentences since 2008.  (He failed to secure the conviction of George Zimmerman, however, for chasing down and shooting teenager Trayvon Martin.)  The Florida Supreme Court reversed three of those cases; one for law enforcement misconduct and two after concluding that death was too severe a punishment.  That court also reversed an earlier death sentence because de la Rionda repeatedly harped about the defendant’s sexual preferences and views on homosexuality, despite the trial court’s warning that the evidence was irrelevant....

Not surprisingly, death sentences drop precipitously after these prosecutors leave office. Bob Macy sent 54 people to Oklahoma’s death row before retiring in 2001.  Over the past five years, Oklahoma County has had only one death sentence.  Lynne Abraham secured 45 death sentences as the Philadelphia district attorney.  Since she retired in 2010, the new district attorney has obtained only three death sentences.  Joe Freeman Britt, dubbed the deadliest prosecutor in America, secured 42 death sentences during his tenure in Robeson County, North Carolina.  Last year DNA evidence led North Carolina officials to release two intellectually disabled half brothers, Henry Lee McCollum and Leon Brown, each of whom served 30 years — with McCollum under a sentence of death — for a rape and murder they did not commit.  Britt is the prosecutor who sent McCollum, a man with the mental age of a 9-year-old, to death row.  Britt retired in the 1990s, and the county has imposed only two death sentences in the past decade.

May 15, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

You be the judge: what sentence for Georgetown's video voyeur Rabbi?

This Washington Post article provides background on a notable sentencing in a DC local court today in which, as highlighted below, the prosecution and defense have radically different sentencing recommendations.  Here are the details:

Sentencing for Barry Freundel, the once-influential Orthodox rabbi who pleaded guilty to secretly videotaping dozens of women as they prepared for a ritual bath, is scheduled for Friday in D.C. Superior Court. The hearing is expected to be an emotional one as many of the victims are expected to speak to Senior Judge Geoffrey Alprin on the impact of Freundel's crime on their lives.

Freundel, 64, was arrested in October on charges that he videotaped six women in the nude while he was at Kesher Israel synagogue in Georgetown.  Prosecutors said a review of his computer equipment revealed that many more women had been recorded by Freundel as they prepared for the bath known as a mikvah — used as part of a purification ritual.

Freundel ultimately pleaded guilty to videotaping 52 women, and the punishment proposed by prosecutors would translate to four months for each victim.  The longtime rabbi had recorded about 100 additional women, prosecutors have said, but those alleged crimes occurred outside the three-year statute of limitations.  The videotaping occurred between 2009 and 2014....

On Thursday, the judge sent out a procedures memo in which he said alerted prosecutors, Freundel and his attorney and victims, as to how the hearing will be conducted.  Each victim who wishes to speak will be allowed only five minutes.  To ensure anonymity for the victims, each woman will be identified by an alphabetical or numerical identifier. Some victims are scheduled to fly in from Israel to speak.

Prosecutors have asked the judge to sentence Freundel to 17 years in prison. Freundel’s attorney, Jeffrey Harris, urged against prison and instead asked the judge to sentence Freundel to community service.  Alprin can adopt either recommendation, or craft another punishment.

Freundel has not spoken publicly about the charges.  He is also likely to speak and because he pleaded guilty, he waived his chance to appeal.  In the memo his attorney wrote to the judge, Harris said Freundel “recognizes and regrets” his actions.  “His conduct has brought shame upon Judaism, the synagogue he once served, his family, and himself,” Harris wrote.

Among the many interesting aspect of this sentencing is whether and how a judge ought to consider the impact of this Rabbi's crimes on those whom he served over many years as a religious leader. This prior Washington Post article, headlined "For those who revered him, D.C. rabbi’s sentencing for voyeurism will not bring closure," highlights their stories. It starts this way:

This week, a D.C. Superior Court judge is scheduled to hand down a penalty for Barry Freundel, a powerful Orthodox rabbi who for years secretly videotaped his female followers as they prepared to submerge in the mikvah, a ritual bath.  But in the Orthodox world where Freundel was once a giant, the fallout of his crimes will continue unspooling.

Some of the hundreds who studied or worshiped with Freundel have stopped going to the mikvah, a ritual that is considered so important in Judaism that women are commanded to use it monthly before sharing any physical intimacy with their husbands.  Others who converted with Freundel are terrified that their status as Jews will forever be in question in their law-focused communities.  Some people have stopped going to synagogue.  Others suffer nightmares in which they are spied upon — and feel complicit.

May 15, 2015 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (6) | TrackBack (0)

Thursday, May 14, 2015

Any predictions about how long the capital jury will need to deliberate in the Boston bombing case?

Slider_2015-04-06T174208Z_174798518_GF10000051140_RTRMADP_3_BOSTON-BOMBINGS-TRIALAs this Boston Globe article reports, "jurors began deliberating Wednesday on the sentence of Dzhokhar Tsarnaev, sorting through a complex 24-page verdict slip meant to help them decide whether the Boston Marathon bomber should be sentenced to life in prison or death." Here is more details about where matters now stand as a set-up to the question in the title of this post:

The jurors were left with only 45 minutes to meet Wednesday after receiving instructions from the judge and hearing closing arguments from both sides. Prosecutors used their time to depict the 21-year-old defendant as a remorseless terrorist who participated in the bombing to make a political statement; defense attorneys portrayed Tsarnaev as the troubled follower of an older brother who brainwashed him into joining his violent plan.

Both sides also reminded jurors — the same panel that convicted Tsarnaev last month — of the emotionally charged testimony and graphic photos presented during the 10 weeks of testimony. Yet they recommended contrasting methods of weighing whether Tsarnaev deserved to be put to death.

In her closing argument, Judy Clarke, Tsarnaev’s attorney, delivered a surprising concession, telling jurors they could quickly endorse some of the sections of the verdict slip that refer to the factors that permit, but do not require, the imposition of the death penalty for her client. “Check them off,” she said with a dismissive flick of the wrist.

Clarke acknowledged there was ample evidence presented during the trial that Tsarnaev, among other things, intended to kill, that his crime was premeditated, and that it was especially cruel and heinous — all factors that make his offenses subject to capital punishment.

But prosecutors urged a more careful review of each section of the verdict form, calling on the 12 jurors to study the long list of Tsarnaev’s actions and each question they must answer in reaching their decision. They called on jurors to remember that they promised to remain open to the death penalty if the government proved its case. “I urge you to take your time with each one,” said prosecutor William Weinreb, who gave the rebuttal closing after Clarke’s statement.

But Clarke, as has been her style since the beginning of the trial, when she startled the courtroom by conceding that Tsarnaev committed the crimes, continued to try to show jurors that she was leveling with them and that she was a high-minded attorney looking to not waste their time with legal technicalities.

In her 90-minute statement, Clarke struck a more philosophical note, saying sometimes good kids emerge out of chaotic, troubled homes to become good young adults — but sometimes not.  She went through photos and evidence suggesting that Tsarnaev’s parents were emotionally, and later physically, absent from his life, and that Tsarnaev’s older troubled and radicalized brother, Tamerlan, filled the void.  The root cause of the violence that erupted on Boylston Street on April 15, 2013, was Tsarnaev’s older brother, Clarke said. “Dzhokhar would not have done this but for Tamerlan,” she said....

Echoing themes of war, prosecutors passionately argued before jurors that Tsarnaev was his own man and chose to become a jihadist warrior.  They portrayed him as part of a disturbing number of young anti-American terrorists who seek to kill to send a political message.  While the defense has cited Tsarnaev’s age — he was 19 when he planted the bombs — as a mitigating factor against the death penalty, prosecutor Weinreb rejected the notion.

“These weren’t youthful crimes,” he said. “There was nothing immature or impulsive about them. These were political crimes, designed to punish the United States . . . by killing and mutilating innocent civilians on US soil.”

He went on to say that while the defense case focused heavily on Tamerlan as the evil force who corrupted his younger brother, no evidence to back up the theory emerged in court. “Where is the evidence of brainwashing and mind control?” Weinreb asked.

Reaching their final decision will be more art than science, both sides said, telling jurors that it will not be a simple tabulation of how many aggravating factors they endorse against the number of mitigating factors they find. Those factors, among other things, are delineated on the verdict slip.

For the jury to impose the death penalty, all 12 members would have to unanimously agree on that sentence for at least one of the 17 death-eligible counts for which Tsarnaev was convicted. Anything short of that would require the judge to impose life in prison without parole. Jurors are scheduled to resume deliberations Thursday.

I have a nagging feeling that, because I am going to be off-line during most of the work day today and tomorrow with a variety of professional commitments, we are going to get a verdict from the jury before the end of this week. But perhaps because there are multiple formal elements to the capital verdict form, and perhaps also because the jurors may want ample time to talk through all their perspectives, it certainly seems possible we will not get a verdict until next week.

A few prior related posts:

May 14, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

"Is Burglary A Crime Of Violence? An Analysis of National Data 1998-2007"

The title of this post is title of this interesting federally funded empirical research. Here is the abstract:

Traditionally considered an offense committed against the property of another, burglary is nevertheless often regarded as a violent crime. For purposes of statistical description, both the Uniform Crime Reports (UCR) and the National Crime Victimization Survey (NCVS) list it as a property crime.  But burglary is prosecuted as a violent crime under the federal Armed Career Criminal Act, is sentenced in accord with violent crimes under the United States Sentencing Guidelines, and is regarded as violent in state law depending on varied circumstances.  The United States Supreme Court has treated burglary as either violent or non-violent in different cases.

This study explored the circumstances of crimes of burglary and matched them to state and federal laws. Analyzing UCR, NCVS, and the National Incident Based Reporting System (NIBRS) data collections for the ten year period 1998-2007, it became clear that the majority of burglaries do not involve physical violence and scarcely even present the possibility of physical violence.  Overall, the incidence of actual violence or threats of violence during burglary ranged from a low of .9% in rural areas based upon NIBRS data, to a high of 7.6% in highly urban areas based upon NCVS data. At most, 2.7% involved actual acts of violence.

A comprehensive content analysis of the provisions of state burglary and habitual offender statutes showed that burglary is often treated as a violent crime instead of prosecuting and punishing it as a property crime while separately charging and punishing for any violent acts that occasionally co-occur with it.  Legislative reform of current statutes that do not comport with empirical descriptions of the characteristics of burglaries is contemplated, primarily by requiring at the minimum that the burglary involved an occupied building if it is to be regarded as a serious crime, and preferably requiring that an actual act of violence or threatened violence occurred in order for a burglary to be prosecuted as a violent crime.

May 14, 2015 in Data on sentencing, Offense Characteristics | Permalink | Comments (2) | TrackBack (0)

Extended coverage of messy Oklahoma execution and execution methods

960The just-released June issue of The Atlantic magazine has a lengthy cover story headlined "Cruel and Unusual: The botched execution of Clayton Lockett — and how capital punishment became so surreal."  This piece is a long and valuable read, and these excerpts provides a flavor of its coverage beyond the events of a single capital case:

Since the mid-1990s, when lethal injection replaced electrocution as America’s favored method of execution, states have found drug combinations that they trust to quickly and painlessly end a life.  They often use three drugs.  The first is an anesthetic, to render the prisoner unconscious.  The second is a paralytic.  The third, potassium chloride, stops the heart.

What many people don’t realize, however, is that choosing the specific drugs and doses involves as much guesswork as expertise.  In many cases, the person responsible for selecting the drugs has no medical training.  Sometimes that person is a lawyer — a state attorney general or an attorney for the prison.  These officials base their confidence that a certain drug will work largely on the fact that it has seemed to work in the past.  So naturally, they prefer not to experiment with new drugs.  In recent years, however, they have been forced to do so....

[In early 2014], Mike Oakley, the general counsel for the Oklahoma Department of Corrections, had returned from vacation to find the department in a near-frenzy. Before he’d left, the department had ordered pentobarbital from a compounding pharmacy for the executions of Clayton Lockett and Charles Warner, a 46-year-old man convicted in 2003 of raping and killing his roommate’s 11-month-old baby.  But compounding pharmacies had come under pressure to stop selling drugs for executions, and Oklahoma’s supplier had backed out.  With the executions scheduled for March 20 and March 27, one of Oakley’s deputies began driving around the state, walking into pharmacies and asking for pentobarbital, without success.

Oakley didn’t know why the task of finding drugs for executions fell largely to him: he had no medical training.  But he wanted to help his colleagues — especially the warden, whom he considered conscientious and hardworking — because he knew how much strain carrying out a death sentence put on them. He had gone into corrections, 25 years earlier, because Oklahoma was doing interesting work in mediation between victims and offenders. Now he was about to retire, and he found himself, as his swan song, developing a new execution cocktail.

The Atlantic also hasin its June issue this companion piece headlined "A Brief History of American Executions: From hanging to lethal injection." Here is how it starts:

Hanging is perhaps the quintessential American punishment.  In the pre-revolutionary era, criminals were also shot, pressed between heavy stones, broken on the wheel, or burned alive.  (An estimated 16,000 people have been put to death in this country since the first recorded execution, in 1608.)  But the simplicity of the noose triumphed, and its use spread as the republic grew.

In theory, a hanging is quick and relatively painless: the neck snaps immediately.  But hangings can be grisly.  If the rope is too short, the noose will slowly strangle the condemned.  If the rope is too long, the force of the fall can decapitate the person.

The Supreme Court has never struck down a method of execution as unconstitutional.  But states have at times tried to make the process more humane.  “Hanging has come down to us from the dark ages,” New York Governor David B. Hill told the state legislature in 1885. He asked “whether the science of the present day” could produce a way to execute the condemned “in a less barbarous manner.”

May 14, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack (0)

Wednesday, May 13, 2015

"What Private Prisons Companies Have Done to Diversify in the Face of Sentencing Reform"

The title of this post is this interesting Bloomberg Business article, and here are excerpts:

America’s overall prison population has increased by 500 percent over the last 40 years, and the U.S. incarcerates more people than any other country, by far.  State and federal authorities began turning to private prison companies in the 1980s to handle overflowing facilities, and today about 8 percent of prisoners in the U.S. are housed in privately run prisons. Almost all are run by the two largest providers: Corrections Corporation of America and GEO Group.

In September 2014, then-Attorney General Eric Holder announced that the federal prison population had declined for the first time since 1980.  There were nearly 5,000 fewer prisoners in federal prisons in the 2014 fiscal year, compared to the year before, he said. The latest figures for state prisons are only from 2013, which showed an increase of 6,300 prisoners from the previous year.

Both GEO Group and CCA — which last year pulled in a combined $3.3 billion in annual revenue — have taken moves in recent years to diversify into services that don't involve keeping people behind bars.  GEO Group in 2011 acquired Behavioral Interventions, the world’s largest producer of monitoring equipment for people awaiting trial or serving out probation or parole sentences.  It followed GEO’s purchase in 2009 of Just Care, a medical and mental health service provider which bolstered its GEO Care business that provides services to government agencies.

“Our commitment is to be the world’s leader in the delivery of offender rehabilitation and community reentry programs, which is in line with the increased emphasis on rehabilitation around the world,” said GEO chairman and founder George Zoley during a recent earnings call.  

For $36 million in 2013, CCA acquired Correctional Alternatives, a company that provides housing and rehabilitation services that include work furloughs, residential reentry programs, and home confinement.  “We believe we’re going to continue to see governments seeking these types of services, and we’re well positioned to offer them,” says Steve Owen, CCA’s ‎senior director of public affairs.

Brian W. Ruttenbur, a managing director at CRT Capital Group’s research division, says that neither GEO or CCA will be significantly hurt by sentencing reform in the near future. “The big growth in recent years has been with [U.S. Immigration and Customs Enforcement, or ICE] and both of these companies have historically made heavy investments there,” Ruttenbur says.  Immigration detainees are commonly held in the same private facilities that contain state and federal prisoners, and a Government

Accountability Office analysis of ICE data showed that immigration detentions more than doubled between 2005 and 2012. Alex Friedmann, associate director of the Human Rights Defense Center and managing editor of Prison Legal News, says sentencing reform will probably not affect immigration detainees. “Immigration reform might, but even under proposed reform legislation, detention will likely increase,” he says. In 2015, more than $2 billion in federal contracts are up for bid to run five or more prisons that meet the “Criminal Alien Requirements” and house non-U.S. citizens.

May 13, 2015 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Former Georgia Supreme Court Chief Justice call for absolute capital abolition

As reported in this Atlanta Journal-Constitution article, headlined "Former justice calls for end to death penalty," reports on a notable speech given by a notable former jurist.  Here are the details:

A former chief justice of Georgia’s highest court on Tuesday strongly renounced the death penalty and called for its abolition.  Norman Fletcher, who served 15 years on the Georgia Supreme Court, said the death penalty is “morally indefensible,” “makes no business sense” and is not applied fairly and consistently.

“Capital punishment must be permanently halted, without exception,” Fletcher said. “It will not be easy, but it can and will be accomplished.”

Fletcher, now a Rome lawyer, retired from the state Supreme Court in 2005.  Although considered one of the court’s more liberal members, he cast numerous votes upholding death sentences.  In more recent years, he has signed on to legal briefs urging courts to halt the executions of a number of condemned inmates.

Fletcher made his remarks Tuesday evening at the Summerour Studio near Atlantic Station, where he received the Southern Center for Human Rights’ Gideon’s Promise Award for his role in helping create a statewide public defender system.  In his acceptance speech, Fletcher said he was about to “shock” those attending the ceremony.

Lawyers who once criticized his decisions upholding death sentences were justified, he said. “With wisdom gained over the past 10 years, I am now convinced there is absolutely no justification for continuing to impose the sentence of death in this country,” Fletcher said....

Fletcher added, “There can be no doubt that actually innocent persons have been executed in this country.”  Too often, Fletcher contended, budgetary issues, race and politics factor into the decision-making of whether to seek the death penalty.

Fletcher cited the late U.S. Supreme Court Justice Harry Blackmun, who once said he could “no longer tinker with the machinery of death.”  Blackmun made this declaration before he retired from the high court in 1994. “It is time for us to quit the tinkering and totally abolish this barbaric system,” Fletcher said.

May 13, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

Senator Cornyn highlights his plan to "ensure that prisons don’t become nursing homes behind bars"

This recent post spotlighted the Washington Post's extended front-page story about the graying of America's prison populations.  Notably, Senator John Cornyn has now penned this letter to the editor to explain what he is trying to do to deal with this issue:

A bipartisan proposal working its way through Congress would offer a path home for some nonviolent, elderly prisoners.

The Corrections Act, which I have introduced with Sen. Sheldon Whitehouse (D-R.I.), includes a provision that would make prisoners age 60 and older eligible for early release after serving two-thirds of their sentences.  This reform builds on an expired pilot program from a bipartisan prison reform law known as the Second Chance Act of 2007.  That program showed good results before it was canceled last year, and our proposal would save taxpayer money by treating seriously ill and dying individuals with compassion.

It is becoming increasingly clear that we must make bipartisan efforts to reform our criminal justice system.  Many of the issues involved are complex, but reforming the system to ensure that prisons don’t become nursing homes behind bars doesn’t need to be one of them.

May 13, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

Tuesday, May 12, 2015

Is it unseemly I wish I could watch the Boston bombing closing arguments?

The question in the title of this post reflects my (perverse?) frustration with the absence of cameras in federal courtrooms, especially in cases in which the work of advocates seem so significant in the sentencing decision-making process.  From the start of the Tsarnaev trial, I have long thought that the sentencing outcome would turn on how well the prosecution  keeps the jury's focus on the horrible crime (which surely seems death-worthy) and how well the defense turns the focus to mitigating personal factors which perhaps led Tsarnaev to commit the horrible crime.  I am expecting that the closing arguments would capture and encapsulate the debate over this crime, criminal and his punishment in a fascinating way.  But, to my disappointment, I will only get to read accounts of the arguments rather than see and hear them directly.

For those eager for a bit of a preview, this new Boston Globe article, headlined "Lengthy, complex checklist awaits Tsarnaev jurors," explains the formal death sentencing process the jury will soon be facing:

In the end, the punishment of Dzhokhar Tsarnaev will come down to one question: Have federal prosecutors proved that the Boston Marathon bomber’s crimes were so heinous he deserves to be sentenced to death?

But before jurors weigh that singular decision they will first have to wade through a complex checklist in a lengthy verdict sheet to show that they have indeed weighed all the factors in the case — those identified by prosecutors, known as aggravating factors, as well as those presented by defense attorneys, called mitigating factors.

Legal analysts say the thoroughness of the process is meant to assure that jurors focus on relevant factors and ignore prejudicial and arbitrary circumstances in determining a defendant’s fate. “The jury has to consider the circumstances that the government says is relevant, that justifies a death sentence, and then the jury makes a reasoned, morally responsible response to that evidence,” said George Kendall, a New York lawyer who has handled hundreds of death-penalty cases. “The idea is we want to have a system of accountability.”

Unlike typical criminal cases, the jury that determined Tsarnaev’s guilt in the first phase of his trial is also tasked with deciding his punishment during this second phase of his trial. And in deciding which sentence to bestow, the jurors will weigh the aggravating factors — or reasons why Tsarnaev’s crimes were so heinous he deserves death — against the mitigating factors, or arguments that seek to explain and soften his culpability in the crimes.

The formula of arguing aggravating vs. mitigating factors in capital crimes was upheld by the US Supreme Court in 1976, in a case originating in Georgia, and it became the basis for modern federal death penalty laws. The decision ended an unofficial moratorium on the death penalty that had begun four years earlier after the Supreme Court ruled that death penalty laws were unconstitutional because they were being applied arbitrarily.

Now, under the modern application of the death penalty, jurors must consider aggravating factors and mitigating factors for each defendant — and they must record their conclusion on each of those factors on the verdict slip. They must then repeat the process for each count.  Tsarnaev faces 17 charges that carry the possibility of the death penalty.

US District Judge George A. O’Toole Jr. has not released a copy of the verdict slip, but prosecutors have already identified aggravating factors in the case: That Tsarnaev intentionally sought to kill and inflict bodily injuries; that he targeted vulnerable victims, including children and spectators at the Marathon finish line; Tsarnaev has shown no remorse; the attacks were in the name of jihad, or terrorism; one of his victims was a police officer; and the attack was premeditated.

Jurors will have to be unanimous in finding that each of the aggravating factors was proven. They also must be unanimous if they choose to sentence Tsarnaev to death.  A split jury would result in a life sentence.

But jurors will also vote on the defense team’s mitigating factors, and they do not have to be unanimous on each one.  “The defense doesn’t have the same kind of burden, it’s the prosecutors who have the burden to prove this beyond a reasonable doubt, that death is the only appropriate sentence,” Kendall said.

Jurors will then weigh the totality of aggravating and mitigating factors before deciding on a sentence.  O’Toole has already instructed jurors that choosing a sentence isn’t a matter of simple math of how many aggravating factors were proven vs. how many mitigating factors the defense presented, but a “reasoned, moral response” to the overall case. “A single mitigating factor can outweigh several aggravating factors,” O’Toole told jurors.

The defense team has not publicly disclosed the mitigating factors it will list on the verdict sheet, but they will likely draw from the themes they have sought to crystallize in the trial: That Tsarnaev was an impressionable teenager who was manipulated by a dominating older brother; that brain science shows that teenagers do not have a fully matured brain; that he came from a troubled upbringing, and was looking for guidance in a vulnerable time in his life; and that his family held to old cultural tradition that he obey the direction of his older brother....

Kendall said jurors in Tsarnaev’s case are likely to weigh each argument seriously, having sat through 27 days of testimony in both phases of the trial, and listening to more than 150 witnesses. “It’s not just paperwork,” Kendall said. “It’s after all this evidence that the decision is being based on factors the law considers prudent and right ones.”

Jurors are scheduled to hear closing arguments Wednesday morning and could begin their deliberations Wednesday afternoon.

A few prior related posts:

May 12, 2015 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack (0)

"Solitary Confinement: Common Misconceptions and Emerging Safe Alternatives"

The title of this post is the title of this notable new report released today from the Vera Institute of Justice. Here is how the report is described on this Vera webpage:

Segregated housing, commonly known as solitary confinement, is increasingly being recognized in the United States as a human rights issue.  While the precise number of people held in segregated housing on any given day is not known with any certainty, estimates run to more than 80,000 in state and federal prisons — which is surely an undercount as these do not include people held in solitary confinement in jails, military facilities, immigration detention centers, or juvenile justice facilities.  Evidence mounts that the practice produces many unwanted and harmful outcomes — for the mental and physical health of those placed in isolation, for the public safety of the communities to which most will return, and for the corrections budgets of jurisdictions that rely on it for facility safety.

Yet solitary confinement remains a mainstay of prison management and control in the U.S. largely because many policymakers, corrections officials, and members of the general public still subscribe to some or all of the common misconceptions and misguided justifications addressed in this report.  This publication is the first in a series on solitary confinement, its use and misuse, and ways to safely reduce it in our nation’s correctional facilities made possible in part by the Robert W. Wilson Charitable Trust.

May 12, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Ohio legislators moving forward on recommended death penalty reforms

As reported in this local article, headlined "Lawmakers want to exclude mentally ill from death penalty," a number of recommendations made by a death penalty task force on which I served here in Ohio are emerging in notable bills. Here are the basics:

Killers diagnosed as “seriously mentally ill” at the time of the crime could not be executed in Ohio under proposed legislation expected to be introduced Tuesday in the Ohio Senate.  If passed, the bill sponsored by Sens. Bill Seitz, R-Cincinnati, and Sandra Williams, D-Cleveland, would be a major change in Ohio, which now prohibits the execution of mentally disabled people but not the mentally ill.

Seitz and Williams have been jointly developing legislation based on recommendations from the Ohio Supreme Court Death Penalty Task Force, released in April 2014.  About a dozen task force recommendations are expected to be introduced in the General Assembly.

The bill would bar execution of people who, when they committed the crime, suffered from a serious mental illness that impaired their ability to “exercise rational judgment in relation to their conduct, conform their conduct to the requirements of the law, or appreciate the nature, consequences or wrongfulness of their conduct,” according to the National Alliance on Mental Illness Ohio, which supports the legislation....

Several of the 53 inmates executed in Ohio since 1999 could possibly have been excluded under the proposed change.  Wilford Berry, the first person to be executed when Ohio resumed capital punishment on Feb. 19, 1999, was considered to have mental illness with delusions.  At one point, Berry said he saw the angel of death sitting with him in his prison cell.

NAMI and the Ohio Psychiatric Physicians Association wrote a letter to lawmakers seek support for the legislation.  “We believe that those who commit violent crimes while in the grip of a psychotic delusion, hallucination or other disabling psychological condition lack judgment, understanding or self-control.  Until such time as the U.S. Supreme Court decides on this question, the responsibility for prohibiting the execution of such individuals in Ohio rests with the Ohio General Assembly.”...

Other task force proposals to be unveiled in the legislature in the future are establishing a statewide indigent death-penalty litigation fund in the Ohio Public Defender's office; requiring certification for coroner's offices and crime labs; and prohibiting convictions based solely on uncorroborated information from a jailhouse informant.

May 12, 2015 in Death Penalty Reforms, Offender Characteristics, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

“Callous and Cruel: Use of Force against Inmates with Mental Disabilities in US Jails and Prisons”

The title of this post is the title of this big new Human Rights Watch Report which documents worrisome use of force against prisoners with mental health problems in the United States.  Here is an excerpt from the report's introduction:

Across the United States, staff working in jails and prisons have used unnecessary, excessive, and even malicious force on prisoners with mental disabilities such as schizophrenia and bipolar disorder.

Corrections officials at times needlessly and punitively deluge them with chemical sprays; shock them with electric stun devices; strap them to chairs and beds for days on end; break their jaws, noses, ribs; or leave them with lacerations, second degree burns, deep bruises, and damaged internal organs.  The violence can traumatize already vulnerable men and women, aggravating their symptoms and making future mental health treatment more difficult.  In some cases, including several documented in this report, the use of force has caused or contributed to prisoners’ deaths.

Prisons can be dangerous places, and staff are authorized to use force to protect safety and security. But under the US constitution and international human rights law, force against any prisoner (with mental disabilities or not) may be used only when — and to the extent — necessary as a last resort, and never as punishment.

As detailed in this report, staff at times have responded with violence when prisoners engage in behavior that is symptomatic of their mental health problems, even if it is minor and non-threatening misconduct such as urinating on the floor, using profane language, or banging on a cell door.  They have used such force in the absence of any emergency, and without first making serious attempts to secure the inmate’s compliance through other means.  Force is also used when there is an immediate security need to control the inmate, but the amount of force used is excessive to the need, or continues after the inmate has been brought under control.  When used in these ways, force constitutes abuse that cannot be squared with the fundamental human rights prohibition against torture or other cruel, inhuman, or degrading treatment or punishment.  Unwarranted force also reflects the failure of correctional authorities to accommodate the needs of persons with mental disabilities.

There is no national data on the prevalence of staff use of force in the more than 5,000 jails and prisons in the United States.  Experts consulted for this report say that the misuse of force against prisoners with mental health problems is widespread and may be increasing.  Among the reasons they cite are deficient mental health treatment in corrections facilities, inadequate policies to protect prisoners from unnecessary force, insufficient staff training and supervision, a lack of accountability for the misuse of force, and poor leadership.

It is well known that US prisons and jails have taken on the role of mental health facilities. This new role for them reflects, to a great extent, the limited availability of community-based outpatient and residential mental health programs and resources, and the lack of alternatives to incarceration for men and women with mental disabilities who have engaged in minor offenses.

According to one recent estimate, correctional facilities confine at least 360,000 men and women with serious conditions such as schizophrenia, bipolar disorder, and major depression.  In a federal survey, 15 percent of state prisoners and 24 percent of jail inmates acknowledged symptoms of psychosis such as hallucinations or delusions.

What is less well known is that persons with mental disabilities who are behind bars are at heightened risk of physical mistreatment by staff.  This report is the first examination of the use of force against inmates with mental disabilities in jails and prisons across the United States.  It identifies policies and practices that lead to unwarranted force and includes recommendations for changes to end it.

May 12, 2015 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (2) | TrackBack (0)

Monday, May 11, 2015

Notable Ohio county prosecutor calls pot prohibition a "disastrous waste of public funds"

Images (9)As reported in this Cincinnati Enquirer article, headlined "Prosecutor Deters OK with legalizing pot," a high-profile prosecutor in Ohio is now publicly getting involved with efforts to reform the state's marijuana laws. Here are the details:

The campaign to legalize marijuana in Ohio found an unlikely friend Monday in Hamilton County Prosecutor Joe Deters.

Deters, a life-long Republican and law-and-order prosecutor, said he agreed to lead a task force on the potential impact of legalization in part because he's been unhappy for years with the state's marijuana laws. He said they waste taxpayer dollars and target people who typically are not much of a threat to society.

"I think they're outdated and ludicrous," Deters said of marijuana laws. "I don't use marijuana, but I know people who do use marijuana, and I'd rather deal with someone who smoked a joint than someone who drank a bottle of vodka any day of the week."

When asked if he favors legalization, Deters told The Enquirer: "I don't have any problem with it at all."

ResponsibleOhio, the group of wealthy investors campaigning for legalization, asked Deters to lead the task force. Deters said he's not being paid for his work on the task force and agreed to do it because he's interested in the issue and the potential impact on law enforcement.

He said finding an affordable and efficient way to test drivers who are suspected of being impaired by marijuana use is one of his concerns. "There is a public safety element to this," Deters said. His goal is to produce a report on the impact of legalization within a few months....

Deters said he doesn't buy the argument that prisons are filled with low-level drug offenders, but he does think the time and money devoted to marijuana enforcement could be better spent elsewhere. "It's been a disastrous waste of public funds," Deters said....

Deters said he's not taking a position on ResponsibleOhio's proposed business model, but he said it makes sense for the state to regulate and tax marijuana. "You can walk outside your building and buy marijuana in 10 minutes," Deters said. "The question is, do we want schools and local governments getting the money or the bad guys?"

He said it's also wise for the state to prepare for legalization, whether or not ResponsibleOhio succeeds, because voters seem more willing to support it and other states are adopting similar measures. "The days of 'reefer madness' are gone, because that's not the reality," Deters said, referring to the 1950s-era movies that vilified marijuana and those who used it.

He said he's reaching out now to academics, elected officials and law enforcement to participate in the task force.

I have long known and respected the work of Joe Deters, even though we have sometimes disagreed on various professional matters through our work on the Ohio Death Penalty Task Force and in other settings.  I had heard from various folks involved with the ResponsibleOhio campaign that they were seeking to have a prominent, knowledgeable person running a task force to examine these important marijuana reform topics, and I am especially pleased to see that Joe Deters is now officially and publicly at the helm.

Cross-posted at Marijuana Law, Policy and Reform

May 11, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

"Brain Science and the Theory of Juvenile Mens Rea"

The title of this post is the title of this notable new paper by Jenny Carroll now available via SSRN. Here is the abstract:

The law has long recognized the distinction between adults and children.  A legally designated age determines who can vote, exercise reproductive rights, voluntarily discontinue their education, buy alcohol or tobacco, marry, drive a car, or obtain a tattoo. The Supreme Court has repeatedly upheld such age-based restrictions, most recently constructing an Eighth Amendment jurisprudence that bars the application of certain penalties to juvenile offenders.  In the cases of Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, the Court's jurisprudence of youth relies on emerging neuroscience to confirm what the parents of any teenager have long suspected: adolescents' cognitive abilities and thought processes differ from their adult counterparts.  Children are different than adults.

In these rulings, the Court recognized that brain development affects the legal construct of culpability and so should affect punishment.  The Court reasoned that without mature thought processes and cognitive abilities, adolescents as a class fail to achieve the requisite level of culpability demonstrated in adult offenders.  As such, juveniles were categorically spared the death penalty and, in some instances, a sentence of life in prison without the possibility of parole.  To date, the Court has limited the application of this principle to punishment. The logic of the Court's decisions, however, applies just as strongly to the application of substantive criminal law.  Just as modern neuroscience counsels against the imposition of certain penalties on juvenile offenders, so it counsels toward a reconsideration of culpability as applied to juvenile offenders through the element of mens rea.  In this paper I argue that the failure to extend this jurisprudence of youth to the mental element undermines the very role of mens rea as a mechanism to determine guilt.

May 11, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack (0)

Will and should famed abolitionist nun, Sister Helen Prejean, be allowed to testify at Boston bombing sentencing trial?

Images (4)The question in the title of this post is the interesting legal question to be resolved this week in federal court in Boston as the defense team finalizes its mitigation case on behalf of Boston Bomber Dzhokhar Tsarnaev.  This Boston Globe piece, headlined "Will judge allow nun to testify for Tsarnaev defense?," provides some context:  

While everybody in and around Boston is celebrating Mother’s Day and spring sunshine, George O’Toole has something weighing on him. O’Toole is a judge and has presided over the trial of convicted Boston Marathon bomber Dzhokhar Tsarnaev with his typical geniality. But even genial judges have to make tough decisions.

The trial, which began with jury selection in the first week of January, and testimony in the first week of March, is winding down. If all goes to plan, and it seldom does in trials, the jury could be sent away by the end of this week, ready to contemplate sentencing Tsarnaev to death or life in prison without the possibility of parole.

But before any of that happens, George O’Toole has to decide whether a 76-year-old Roman Catholic nun can testify as part of the effort to save a 21-year-old Islamic extremist from death. The nun in question is Helen Prejean, a Sister of St. Joseph, and if you ask what that means, you never had nuns.

Sister Helen Prejean is an icon of the antideath penalty movement, something of a celebrity. “Everybody knows Sister Helen,” said David Hoose, a Northampton defense attorney who has worked on death penalty cases. And it’s true, a lot of Americans do know her, at least vicariously. They know her as Susan Sarandon, the actress who won an Oscar for her portrayal of Sister Helen in the 1995 film “Dead Man Walking.”

Twenty years after Sister Helen became the face of the antideath penalty movement in America, she is here in Boston, poised, if O’Toole allows it, to be the last witness for the defense in the trial of Dzhokhar Tsarnaev.

No one saw this coming. As prominent as the New Orleans-based Sister Helen is in the antideath penalty movement, she is not known for testifying in death penalty cases. But she wanted to get involved in this case, somehow. Inevitably, she found herself in the defense camp....

[A]s someone who has counseled death row inmates, Sister Helen can impart [the] message ... that a death sentence hardly guarantees death.

Since 1988, when the federal government got back in the business of executing people, the government has sought the death penalty in nearly 500 cases. In 232 of those cases, there was a guilty verdict where jurors had to decide between life and death, and in 79 cases they chose death. Of those 79, only three have been executed. It’s possible that Dzhokhar Tsarnaev would be No. 4 if the jury sentences him to death, but the odds are against it.

In the meantime, Judge O’Toole has to decide on the government’s motion to exclude Sister Helen’s testimony. In death penalty cases, the defense is given a wide berth in calling witnesses as they present mitigating evidence.  Even if O’Toole is on the fence about the relevance of Sister Helen’s testimony, and is inclined to tightly limit the scope of what she can speak to, he might not want to risk a reversal of the whole trial over one final witness.

The defense may only want Sister Helen to repeat one of her stock lines: “People are more than the worst thing they have ever done in their lives.” That has been the underlying message of the defense all along. That Dzhokhar Tsarnaev, as a human being, is more than the unspeakable, unforgivable things he did one week in April 2013.

In this post at Crime & Consequences, Kent Scheidegger reasonably asks "What does Helen Prejean know that is relevant to the Tsarnaev case?".  I think Kent (and others in the comments) make sound points that could provide a legal justification for the district judge here precluding Prejean from being able to testify at the sentencing hearing on behalf of the Boston bomber.  But I also think, as the article above hints, judges are generally disinclined to preclude completely any offered defense testimony at the sentencing-phase of a capital trial.  I thus predict that the district judge here will allow Prejean to testify in some limited way if the defense presses aggressively for her to be a witness.

A few prior related posts:

UPDATE: Apparently Prejean started to testify not long after I wrote this post. This new USA Today article, headlined "Sister Helen Prejean: Tsarnaev 'genuinely sorry for what he did'," starts with this account of what transpired:

Sister Helen Prejean, the Catholic nun and anti-death penalty activist whose story came to fame with the 1995 film Dead Man Walking, took the stand on Monday in the penalty phase of convicted Boston Marathon bomber Dzhokhar Tsarnaev's trial. She said he is "genuinely sorry for what he did," and told her how he felt about the suffering he caused to the bombing's victims.

"He said it emphatically," Prejean said. "He said no one deserves to suffer like they did." She added, "I had every reason to think he was taking it in and he was genuinely sorry for what he did."

Prejean said she had met with Tsarnaev five times since early March and that he "kind of lowered his eyes" when he spoke about the victims. His "face registered" what he was saying. She interpreted his remorseful sentiment "as absolutely sincere," she said.

Prejean said she talked with Tsarnaev about both their faiths: his Islam and her Catholicism. "I talked about how in the Catholic Church we have become more and more opposed to the death penalty," she said, quickly drawing an objection from the prosecution.

Defense attorney Miriam Conrad, questioning Prejean, interjected, "Stop you right there." Conrad asked Prejean what she heard in Tsarnaev's voice she he spoke about the victims' suffering. "It had pain in it," she said.

May 11, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack (0)