Sentencing Law and Policy

New poll indicates most Maryland citizens do not support death penalty repeal efforts

This new article, headlined "Washington Post poll finds most Marylanders in favor of death penalty," reveals that the on-going effort by many elected Maryland representatives to repeal the state's death penalty runs contrary to current public opinion in the state. Here are the basic (which includes a link to the poll data):

A majority of Marylanders want to keep the death penalty on the books despite widespread skepticism across the state about whether capital punishment is a deterrent to murder or is applied fairly, a new Washington Post poll has found.

Sixty percent of adults in the poll say that Maryland law should allow for the death penalty, while 36 percent support replacing it with life in prison without the possibility of parole....

Gov. Martin O’Malley (D) has made repeal of the death penalty a top priority in the 90-day legislative session. Debate could begin in earnest on the issue later this week in the Senate, where a narrow majority of members are on record supporting O’Malley’s repeal bill. Prospects in the House of Delegates are also considered strong.

Some of the arguments O’Malley is making appear to resonate among Marylanders. By nearly 2 to 1, those polled say that the death penalty is not a deterrent to murder and does not lower the murder rate.  And most who respond that way say they feel strongly about their view.  Moreover, nearly one-third of Marylanders — including nearly a half of African Americans — say capital punishment has been applied unfairly in the state. That’s another argument O’Malley has advanced in a state where five men sit on death row but no executions have taken place since 2005.

Yet even when those arguments are stated explicitly, as well as questions that critics have raised about the morality of capital punishment, support for repeal is tepid among the public — which could ultimately decide the issue.  If a repeal bill passes the General Assembly, opponents are expected to take advantage of a provision in the state Constitution that allows citizens to petition new laws to the statewide vote.  If enough signatures are collected, the issue would appear on the ballot in November 2014....

There are deep divisions over the death penalty based on party affiliation, race, gender and other demographics.  More than half of Democrats oppose capital punishment, while three-quarters of Republicans support it.  About six in 10 men support the death penalty, while women are nearly evenly divided. Whites support capital punishment by a margin of about 2-to-1, while a majority of African Americans are opposed....

The Post poll was conducted Feb. 21-24, among a random sample of 1,156 adult residents of Maryland. The results from the full survey have a margin of error or plus or minus 3.5 percent.

Another big SCOTUS criminal justice day on tap

As reported in this prior post, yesterday proved a notable SCOTUS day for fans of intricate federal criminal procedure (though likely for few others).  But today is one I had long noted on my calendar because these two cases (summaries/previews via SCOTUSblog) due to be argued should be of special interest for sentencing fans:

Peugh v. United States

Issue: Whether a sentencing court violates the Ex Post Facto Clause by using the U.S. Sentencing Guidelines in effect at the time of sentencing rather than the Guidelines in effect at the time of the offense, if the newer Guidelines create a significant risk that the defendant will receive a longer sentence.

Argument preview: Are federal Sentencing Guideline amendments “law” or merely “advice” when applying the Ex Post Facto Clause?

 

Maryland v. King

Issue: Whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged with serious crimes.

Argument preview: Crime, technology, and privacy

UPDATE:  The transcript in Peugh v. United States is now available here, and the transcript in Maryland v. King is now here.

"Mass Incarceration at Sentencing"

The title of this post is the title of this interesting looking new paper by Anne Traum now available via SSRN. Here is the abstract:

Courts can address the problem of mass incarceration at sentencing.  Although some scholars suggest that the most effective response may be through policy and legislative reform, judicial consideration of mass incarceration at sentencing would provide an additional response that can largely be implemented without wholesale reform.  Mass incarceration presents a difficult problem for courts because it is a systemic problem that harms people on several scales — individual, family, and community — and the power of courts to address such broad harm is limited.

This Article proposes that judges should consider mass incarceration, a systemic problem, in individual criminal cases at sentencing.  Sentencing is well suited to this purpose because it is a routine phase of a criminal case when courts have great flexibility to individualize punishment based on individual and systemic factors.  In this phase, judicial discretion is at its highest, the judges’ contact with defendants is most direct, and the court can consider the broadest information relevant to sentencing options and impacts.

Mass incarceration can be viewed as a systemic concern that is relevant to both the defendant’s history and the traditional sentencing purposes — including the need to benefit public safety and to ensure that sentences are fair and just.  Information about mass incarceration would enhance courts’ understanding of the impacts of sentencing on the defendant and others in the local community.  This Article articulates how this can be accomplished in federal sentencing and suggests doctrinal and practice changes that would enhance courts’ capacity to consider and mitigate the harms of mass incarceration in individual cases.

Another notable sign of our modern legal on-line times (and a suggestion)

Via the always timely How Appealing, I came across this new Harvard Crimson piece headlined "Harvard Law Review Increases Online Presence." Here is the heart of the report:

The Harvard Law Review will more than double the number of editors focusing on online content for the publication next year in an effort to expand its web presence.

Increasing the online staff from two to five, these new editors will join the Forum Committee, which is responsible for developing the website and editing the material published online.  In the next year, the Law Review hopes to enhance the functionality and design of its website in addition to increasing the quantity of published content, according to second-year Law School student Gillian S. Grossman ’10, the recently elected president who will lead 127th Volume of the organization....

The majority of returning editors voted to add two additional students to this year’s pool of rising editors in order to expand the online content while maintaining the quality of the current print operations, according to Grossman.

The Law Review will also grow the amount of material published online in an effort to increase the resources available for scholarly research.  “The Law Review recognizes that legal conversations and legal scholarship are taking place online in addition to print mediums,” Grossman wrote in an email.  “The Law Review’s Forum provides a platform for authors to engage with the articles we publish in our print issues and to engage with current legal developments through various forms of online scholarship.”

In line with this mission, the Law Review began publishing its print materials online in 2006.  The organization also created a “Forum” section on its website where contributors can write exclusively online content.  In the past, these articles have come in the form of “Responses,” approximately 2,500 word pieces written in response to articles published in the print journal.  With the new push towards expanding the Law Review’s web presence, the “Forum” will also begin publishing “Reactions,” shorter pieces commenting on recent developments in the law, as well as other scholarly essays.

I am always quite pleased to see any and all efforts from the folks at Gannett House to continue to innovate with the form and function of modern legal scholarship.  And, ever eager to encourage my favorite kinds of engagement "with current legal developments through various forms of online scholarship," I will make one big suggestion for the new HLR leaders: try to use the new on-line spaces to try to cover much more state "developments in the law" both legislative and judicial (and, to make me really giddy, give special attention to state criminal justice developments).

Big SCOTUS Monday for fans of intricate federal criminal procedure issues

It is always a bit of a challenge to get the legal blood flowing on a mid-winter Monday (especially if you are, like me, groggy from a late-Sunday-night family Oscar gathering in which you came in last in your pick pool).   But anyone for whom complex issues of federal criminal procedure get you excited, the Supreme Court made Monday a day of near non-stop excitement.  Specifically, in addition to oral arguments in two complicated habeas cases, the Justices also granted cert on two new complicated criminal procedure issues. 

SCOTUSblog, of course, has all the highlights, including links in this post to the transcripts from today's oral argument in McQuiggin v. Perkins and Trevino v. Thaler.  In addition, this lengthy post by Lyle Denniston provides a detailed account of the two new criminal cases on the SCOTUS docket and some other notable morning action.  Here are highlights from that post:

The Supreme Court agreed on Monday to try to clarify further when the rights of an accused are violated because of faulty advice from a defense lawyer about a plea bargain, and separately took on a case testing the tactics prosecutors may use to counter a claim that the accused lacks the mental capacity to commit a crime.  Both cases will be heard and decided at the Court’s next Term, starting in October....

The two newly granted cases are Burt v. Titlow (12-414) and Kansas v. Cheever (12-609).  In both cases, the issues are raised by state officials, protesting lower court rulings that favored the rights of the defendants.

The Burt case involves a Troy, Michigan, woman, Vonlee Nicole Titlow, who was convicted of second-degree murder for the suffocation of her uncle, Donald Rogers, in August 2000.  While she was being held in jail after she had pleaded guilty under a plea bargain, but before she was sentenced, a sheriff’s deputy told her she should not have pleaded guilty if she believed she was innocent.

Titlow got a new attorney and claimed innocence, and the lawyer told her to withdraw her guilty plea, thus nullifying the plea bargain.  She was facing a sentence of seven to fifteen years on a manslaughter charge, and the attorney said that was too long.  Titlow was then tried on the more serious charge of murder, and was convicted of second-degree murder.  She was then sentenced to twenty to forty years in prison.

The Sixth Circuit Court ruled that her Sixth Amendment right had been violated by the attorney’s advice to withdraw the guilty plea, an action which led to her receiving the longer prison sentence for murder.   That is the issue that state officials challenged in their petition to the Supreme Court.  The key issue is the proof that must be offered to show that the accused would have accepted the offer if the advice from the defense lawyer had not been faulty.  The case basically turns on the scope of two Supreme Court rulings last year enhancing the rights of the accused in the plea-bargaining context — Lafler v. Cooper and Missouri v. Frye.

In the Cheever case, Kansas officials raised the issue of what prosecutors may do when an accused individual puts before a jury a defense of mental incapacity to commit a crime.  The state contended that prosecutors should be allowed to counter that claim by presenting the testimony of a psychiatrist who had examined the individual’s mental health, under court order....

[Some] comments by Justices Sotomayor and Breyer on a Texas prosecutor’s racial remarks in a drug conspiracy trial came as the Court denied review in Calhoun v. United States (docket 12-6142).   The two Justices did not dissent from that denial, but said they were commenting “to dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutors’ racially charged remark.  It should not.”

California unable to keep up with sex offender who disable GPS tracking devices

The Los Angeles Times has this new article highlighting yet another dysfunction in California's operation of its criminal justice system.  The full headline provides an effective summary of the lengthy piece: "Paroled sex offenders disarming tracking devices: Thousands of high-risk parolees are removing GPS monitors, often with little risk of serving time, because jails are too full to hold them.  Some have been charged with new crimes."  Here is how the article gets started:

Thousands of paroled child molesters, rapists and other high-risk sex offenders in California are removing or disarming their court-ordered GPS tracking devices — and some have been charged with new crimes including sexual battery, kidnapping and attempted manslaughter.

The offenders have discovered that they can disable the monitors, often with little risk of serving time for it, a Times investigation has found.  The jails are too full to hold them. "It's a huge problem," said Fresno parole agent Matt Hill. "If the public knew, they'd be shocked."

More than 3,400 arrest warrants for GPS tamperers have been issued since October 2011, when the state began referring parole violators to county jails instead of returning them to its packed prisons.  Warrants increased 28% in 2012 compared to the 12 months before the change in custody began.  Nearly all of the warrants were for sex offenders, who are the vast majority of convicts with monitors, and many were for repeat violations.

The custody shift is part of Gov. Jerry Brown and the legislature's "realignment" program, to comply with court orders to reduce overcrowding in state prisons.  But many counties have been under their own court orders to ease crowding in their jails.   Some have freed parole violators within days, or even hours, of arrest rather than keep them in custody. Some have refused to accept them at all.

Before prison realignment took effect, sex offenders who breached parole remained behind bars, awaiting hearings that could send them back to prison for up to a year.  Now, the maximum penalty is 180 days in jail, but many never serve that time.  With so little deterrent, parolees "certainly are feeling more bold," said Jack Wallace, an executive at the California Sex Offender Management Board.

Rithy Mam, a convicted child stalker, was arrested three times in two months after skipping parole and was freed almost immediately each time.  After his third release, his GPS alarm went off and he vanished, law enforcement records show.  The next day, he turned up in a Stockton living room where a 15-year-old girl was asleep on the couch, police said.  The girl told police she awoke to find the stranger staring at her and that he asked "Wanna date?" before leaving the home.

Police say Mam went back twice more that week and menaced the girl and her 13-year-old sister, getting in by giving candy to a toddler, before authorities recaptured him in a local park.  He is in custody on new charges of child molestation.

Californians voted in 2006 to require that high-risk sex offenders be tracked for life with GPS monitors strapped to their bodies.   The devices are programmed to record offenders' movements and are intended, at least in part, to deter them from committing crimes. The devices, attached to rubber ankle straps embedded with fiber-optic cable, transmit signals monitored by a private contractor.

They are easy to cut off, but an alarm is triggered when that happens, as it is when they are interfered with in other ways or go dead, or when an offender enters a forbidden area such as a school zone or playground.  The monitoring company alerts parole agents by text message or email.

Arrest warrants for GPS tamperers are automatically published online.  The Times reviewed that data as well as thousands of jail logs, court documents and criminal histories provided by confidential sources.  The records show that the way authorities handle violators can vary significantly by county.

I am pleased that the LA Times is looking into how GPS tracking of sex offenders is working (or not working) in California these days.  But I am disappointed that this article, which is quick to present a few ugly examples of bad criminals committing more crimes because of the failings of GPS, does not even try to explore whether overall sex offender recidivism rates are down since GPS tracking got started in California.

Whether it is the innocent person wrongly convicted or the guilty pedophile wrongly freed, it is always going to be easy for reporters to find anecdotes to document a singular failing of any part of a massive criminal justice system.  It is much harder to determine — and yet ultimately much more important for making sound reforms — whether and how any particular part of a massive criminal justice system is doing more harm than good and thus needs to be drastically reformed or just tweaked.

"Marijuana dealers get slammed by taxes"

The title of this post is the headline of this new piece over at CNN Money.  Here is how it begins:

Thanks to a decades-old law targeting drug runners, entrepreneurs in the nascent medical marijuana industry face a unique burden: an effective federal income tax rate that can soar as high as 75%.

The hefty levy is the result of a 1982 provision to the tax code, known as 280E, that stemmed from a successful attempt by a convicted drug trafficker to claim his yacht, weapons and bribes as businesses expenses, according to 280E Reform, a group working to overturn the statute. Enacted in the wake of that PR debacle, the rule bars those selling illegal substances from deducting related expenses on their federal income taxes.

It may have been effective against cocaine dealers and smugglers of other hard drugs, but the law now means purveyors of medical marijuana in the 18 states that have legalized the drug can't can't take typical things like rent or payroll as a business expense. That's taking a heavy toll on this new field.

"I'd personally love to give my employees a raise," said Kayvan Khalatbari, co-owner of Denver Relief, a medical marijuana center in its namesake city. "But because of the industry we're in, that's not always possible." Khalatbari said Denver Relief does just over $1 million a year in sales, and that not being able to take some standard business deductions costs him tens of thousands of dollars annually. He estimates his effective federal tax rate is about 50%.

For Denver Relief -- one of the largest marijuana dispensaries in Colorado, with a full-time staff of 15 -- the burden isn't killing the business. But for others, it's been lethal. Jim Marty, an accountant in Colorado specializing in medicinal marijuana tax law, said he has one client that didn't turn a profit in 2009, 2010 or 2011. In 2012, though, she was handed a $300,000 tax bill from the IRS for those three proceeding years.

Entrepreneurs whose businesses are legal under state laws are getting hammered by outdated federal tax rules. "If you have a license from the state hanging on your wall, that doesn't fit the definition of trafficking," Marty said. "Yet the IRS is aggressively auditing this industry." He said he often sees clients facing effective tax bills of 65% to 75%. That compares to 15% to 30% for businesses in general.

I generally favor high "sin" taxes, based in part on the reality that many "sin" products result in significant taxpayer costs from collateral harms. But in the arena of new state marijuana businesses, I fear that the uniquely heavy federal tax burden might prompt some to operate in the grey or black markets rather than under a regulated state regime.  Chalk this up to another important matter that the states and feds are going to need to work through as the modern marijuana laboratories of democracy continuing with their real-time experiments.

Notably, this new commentary by Christopher Matthews at Time, headlined "Will High Marijuana Taxes Encourage Black Markets?," talks through the connection between tax rates and market realities. Here is how it concludes:

For opponents of prohibition, taxes are the one of the best tools to convince citizens and governments of the benefits of a well-regulated marijuana industry.  But the marijuana industry in America — in all its various stages of legality — is large and well-developed. Some even estimate it to be the single largest cash crop in the country.  Given that fact, one can’t expect the black market to dissapear overnight if taxes and regulations make legal marijuana prohibitively expensive.  And as legislators continue the process of setting up a tax and regulatory structure for this budding industry, it’s a reality they had better take into account.

Welcome to the blogosphere Judge Richard Kopf via "Hercules and the Umpire"

I am so very pleased and intrigued to be able to report that one of my very favorite district judges has now decided to get more actively involved in one of my very favorite activities. Specifically, U.S. District Court Judge Richard G. Kopf has started this notable new blog under the notable name "Hercules and the Umpire."

Judge Kopf's first big post is titled "The Who, the Why and the Title of this Blog," and here are excerpts which highlight why I am so excited to follow what Judge Kopf does in his new cyber-space:

The Why

About seven years ago, a bright law student asked me about blogging and that exchange became part of a blog.  See Ian Best, Judge Richard Kopf (D. Nebraska): Legal Blogs Will Fill the Practicality Gap,

The student asked me whether I would consider blogging.  I answered this way: “If I were to write my own blog, it would have something to do with what it means to be a federal trial judge on a day-to-day basis. I am not sure, however, that I want to reveal that much about myself.”

I am now on senior status, and with that change in status (plus advancing age) my reticence to blog has lessened.  I think I have something worth writing about.

I am very interested in the role of judges and particularly the role of federal trial judges. So, that is what I will write about in this blog.

As an aside, even though I am a senior judge, I still have an active caseload.  Thus, I must not comment upon pending or impending matters. I will strive hard to live up to that restriction.  Fair warning: nothing I write about in this blog should be taken as a comment upon those forbidden areas.

The Title

I hope the title evokes an image of two poles.

On the north, we have the late great Ronald Dworkin’s all knowing judge, Hercules.

On the south, we have Chief Justice Roberts’ formulation of the judge as umpire.

I am interested in knowing (1) which pole is the better and (2) whether there is a longitude and latitude between those poles that locates the proper role of a federal trial judge.

"Two Moral Mistakes in the American Criminal Justice System"

The title of this post is the title of this notable book chapter by Eric Blumenson now available via SSRN. Here is the abstract:

A state’s criminal justice system must serve two masters: it must protect the security of persons and property, and it must respect the liberties of the people.  It is bound by both duties and must strike the morally correct balance between them. In this paper, I discuss some principles that I believe must be elements in that balance.  I defend these principles as a necessary part of any effective, liberty-respecting criminal justice system; describe the extreme departure from those principles in the United States; and note some recent interest in reforms that, should they take root, could mark the beginning of an American transition towards a safer, less incarcerated and more liberty-affirming country.

Should anyone eager to see federal criminal justice reform be rooting FOR the sequester?

The question in the title of this post in prompted by these two recent commentaries by Walter Pavlo, who writes about white-collar crime over at Forbes' website:

• Sequester Impact on Federal Prisons

• Here's an Idea To Reduce The Deficit -- Release Some Federal Inmates

The first post above links to this intriguing letter from AG Eric Holder which details the significant "downsizing" that would be required within the Justice Department if the sequester's automating budget cuts kick in.  The second post concludes with these notable points about how we might sensibly cut some federal costs at limited risk to public saefty:

In a time when we want people off of government assistance, the federal justice system is feeding more people into prison …. and believe me, prison IS government assistance (food, shelter, healthcare, supervision and monthly stipend (yes, inmates are paid)). Are we less safe with guys like Raj Rajaratnam (insider trading) doing only 6 years in prison rather than the 11 years he received? Raj’s long sentence sure did not deter someone from trading on Heinz shares prior to the announcement it was going private at a stock premium. Would a Raj sentence of 6 years uphold respect for the law?  I think it would.  Do you think Raj, whether he spent 6 years in prison or 11 years, would be any more likely to commit a another crime?  I’m thinking Raj is done with trading and doubt he placed any of those suspicious trades on Heinz.  Look, the primary difference between an inmate doing 11 years and another one doing 2 has to do with the number of people he/she testified against and not their threat to society.

There is no doubt that long prison sentences make the general public feel good over the short term, but the costs of incarceration go on for the long term.  I realize that images of white-collar felons and low-level drug dealers working side by side breaking rocks conjures up feelings of justice.  However, we now live in a time when there are video cameras at stop-light intersections, drones that patrol war zones, my iPhone can even find itself, so there has to be a better way to monitor felons (inmates) without having them housed on sprawling government complexes and on the government payroll.  Ankle bracelet?  GPS? Community service projects?   Punishment/Sentences can still be vetted out in years but does an entire prison term need to be served on a government, tax payer subsidized, compound?

Sequester this!!!

UPDATE:  On this topic, I see Ted Gest at The Crime Report has this notable recent entry headlined "Justice Groups to White House: Cuts Could Have 'Enormous Impact.'"

"Living Death: Ambivalence, Delay, and Capital Punishment"

The title of this post is the title of this interesting looking new paper by Marianne Mimi Wesson now available via SSRN. Here is the abstract:

Most discussions about capital punishment in the United States treat the distinct phenomena of death sentencing and execution as joined: in the ordinary case, it is assumed, the first will lead eventually to the second.  But in fact it is exceptional for a death sentence to cause the death of the individual sentenced.  During the entire modern death penalty era, since 1976, the ratio of death sentences pronounced in the U.S. to those carried out has been about six to one.

This Article seeks to investigate the causes of the disparity.  It surmises that our tolerance for it grows out of political and institutional ambivalence about capital punishment, and undertakes to identify which actors and processes enact this ambivalence and thus hinder the conversion of death sentences into executions.  My research assistants and I chose a small number of jurisdictions that we found representative in which to study the post-sentence careers of death row inmates.  We considered the roles of death while in prison, executive clemency, and federal habeas corpus intervention in creating attrition from death row, but taken together these events failed to account for all (indeed, even very much) of the disparity.  We investigated in more detail the frequency of sentence reversal by postconviction appeal or collateral state remedies, but contrary to expectation, we found that these processes could not account for the disparity we had observed.

We then undertook a more granular study, following the careers of a cohort of death row inmates, all of whom resided on death row in 1995 (and nearly half of whom still reside there today).  Our findings suggest that the most powerful explanation was simply delay. Our study population consists entirely of prisoners who have been under sentence of death for seventeen years or longer, yet more of them (in some of our jurisdictions many more) are still alive and under sentence of death than have been executed.  To be sure, necessary and expected legal processes consumed some of the intervening years, and the Article investigates and discusses the developments in capital punishment law that have contributed to impeding the march of execution.

A variety of measures have been designed to hasten the processing of capital cases between sentence and execution, but they have been unsuccessful.  Since 1976, the typical interval between sentence and execution has grown markedly over time, cannot really be explained by necessity, and begins to resemble a permanent feature of the system of capital punishment. Although predicting the outcome of individual cases is difficult, it appears that many death sentences that have not been carried out will never be carried out, and that we have accommodated ourselves to this reality.

In closing, the Article discusses the implications of these observations for our national conversation about capital punishment, considers the recent landscape of explicit death penalty abolition activity (especially in California), and makes some predictions about the future of capital punishment.

Notable account of "old school" Japanese approach to prisons

This new article appearing in The Economist, headlined "Eastern porridge: Even Japanese criminals are orderly and well-behaved," provides an fascinating international perspective on prison practices.  Here are excerpts:

With its façade of red brick, Chiba prison, just outside Tokyo, looks like a Victorian-era British jail. That is where the similarity ends.  Prisons in Britain are often loud, dirty and violent, but Chiba resembles a somewhat Spartan retirement home for former soldiers. The corridors and the tiny cells are spotless.  Uniformed prisoners shuffle in lockstep behind guards and bow before entering rooms.

The deputy warden, Hiroyuki Shinkai, who once visited British prisons as a UN researcher, was shocked by what he found.  He can still recall his surprise at seeing inmates freely mingling and talking. “Japanese penal philosophy is different,” he explains.  In Japan, talking is banned, except during break-times.  Unpaid work is a duty, not a choice.

Japan incarcerates its citizens at a far lower rate than most developed countries: 55 per 100,000 people compared with 149 in Britain and 716 in America.  The country’s justice ministry can also point to low rates of recidivism.  Yet increasingly the nation’s 188 prisons and detention centres come in for harsh criticism, particularly over their obsession with draconian rules and secrecy (on February 21st the government unexpectedly announced it had hanged three men for murder), and their widespread use of solitary confinement....

Over two-thirds of the inmates of Chiba prison were convicted for crimes that caused death — mainly murder, arson or manslaughter.  Half are serving life sentences and, in Japan, life means life.  The average prisoner is 50.  Many of them have never used a mobile phone or a credit card.  Conjugal visits are banned, so marriages break down.

In the prison workshops, inmates silently make leather shoes and furniture, overseen by a single unarmed guard.  No riot has taken place in a Japanese prison since just after the second world war.  Escapes are rare, and drugs and contraband almost non-existent.  The prison notes that its ratio of one guard to four prisoners is roughly half that in Britain.  Yet no one can recall a violent attack on a staff member.

A landmark report in 1995 by Human Rights Watch, a lobby group, said this remarkable order “is achieved at a very high cost”, including the violation of fundamental human rights and falling far short of international standards.  Europeans and Americans inside Japan’s prison system have developed mental problems.  Yet for Mr Shinkai the differences with the West are a point of pride. “Of course we look too strict to outsiders,” he says. But his inmates, he goes on, all come from Japanese society. For them, it works beautifully.

Students of prison history will know that this account of modern Japanese prisons suggests that they are structured and run in a manner and with a philosophy remarkably similar to the first major American prisons such as Pennsylvania's Eastern State Penitentiary and New York's Auburn Correctional Facility. prison (some history here).

"Pot on the patio? Colorado's 'surreal' path to legalizing marijuana"

The title of this post is the headline of this lengthy and interesting new Christian Science Monitor article.  Here are some extended excerpts:

In the wake of the decision by voters in Colorado last November to legalize recreational marijuana for adults, the question of how to actually integrate legal pot into the practical, and often bureaucratic, realities of modern American life has fallen on two dozen Coloradans.

By the end of the month, the Amendment 64 Implementation Task Force must submit a report to the Colorado Legislature that lays out its suggestions for how the state should regulate legal marijuana.  It has been a curious process.

On one hand, the task force has considered new rules for what Colorado should do when it inevitably becomes a center of "pot tourism," it has debated whether smokers can use their backyard patios to light up, and it has considered how to deal with "marijuana clubs" that will appear.  Yet, at the same time, marijuana use remains illegal according to federal law, and the Department of Justice may step in and try to invalidate everything the task force has done.

In a time when as many as 25 states are considering pro-marijuana laws, what Colorado does could be broadly significant.  How it converts a massive black market into what experts call "problematic adult commerce" on the fringes of society -- akin to gambling, drinking, and go-go clubs -- all amid lingering legal concerns, could provide a framework for other states to follow.

So far, the results from the task force point to legal marijuana regulations that in many ways mirror regulations on alcohol and tobacco yet, because of the drug's unsettled legal status, are in some ways distinctly separate.   "We made an industry out of cigarettes, we made an industry out of alcohol and now we're creating an industry out of marijuana -- frankly, it's surreal sometimes," says task force member Mary Beth Susman, president of the Denver City Council.  "We're making rules about an activity that is illegal according to the federal government, and sometimes we're making rules that in the normal course of events would be illegal themselves in order to stay under the radar of the federal government."

So far, the Obama administration has kept its hands off the emerging experiments in Colorado (and Washington State, where voters also approved a ballot initiative that legalized pot), though it could be waiting until the Legislature formalizes new pot laws. That's expected by May 8.

Last November, 55 percent of Colorado voters approved adult use of marijuana, meaning that the state would regulate the cultivation and sale of marijuana while allowing legal possession of up to 1 ounce per person.  As caveats, the referendum allows towns and municipalities to opt out of retail marijuana sales and extends criminal and civil liability to smokers who drive high.  The law also allows the state to collect hefty new taxes from license production and retail sales that will go toward state education funds.

Nationally, a slim majority of Americans now support legalization of adult use of marijuana, up from 10 percent in 1971.  Some 100 million Americans have tried the drug at least once, 25 million have smoked in the past year, and 14 million are regular users, according to surveys by the US Department of Health and Human Services

Colorado, a pioneer state with heavy libertarian leanings, has become a major destination for free-spirited young Americans. This makes it an apt legalization laboratory, suggests Allen St. Pierre, the executive director of the National Organization for the Reform of Marijuana Laws (NORML).  Colorado has already led the way in setting up separate taxation and code enforcement for medical marijuana dispensaries, which the state approved in 2000. Today, there are more dispensaries in Denver than there are liquor stores.

Moreover, the Amendment 64 task force's work comes as a growing numbers of states and even Congress begin seriously deliberating medical marijuana and decriminalization. According to NORML, 10 states are proposing outright legalization bills, 15 are eyeing medical marijuana bills, and five are considering industrial hemp bills.  In total, 25 states are considering more than 45 separate pro-marijuana proposals.  On Thursday, Maine lawmakers introduced a Colorado-style bill that would legalize and regulate marijuana to allow adults to use it for recreational purposes.

"Colorado is going to be our first vetting, and they're going to have to go set the standard for a good part of the country on everything from public safety, workplace impairment, custody of children, and defining public use," says Mr. St. Pierre.

That fact has steered the task force's work down peculiar pathways, says Ms. Susman. Some questions are proving difficult to answer.  One, she says, is how the state deals with legal smokers who light up in front of children.  Other issues include how to appease insurance companies with clear financial interests in the health of consumers, government and law enforcement's responsibility to keep the public safe, and the role of making sure consumers have incentive to use the drug responsibly.

Part of the challenge will be to prove to the federal government that the state is solving a societal problem, not creating or fueling one. "If the task force members are savvy, they will try to create a regulatory structure that's going to draw the least attention from the federal government as possible," says Rob Mikos, a law professor at Vanderbilt University in Nashville, Tenn....

Ms. Susman says she's caught herself many times during task force deliberations pondering the enormity, and sometimes absurdity, of its task.  For example, by setting a very low cap on how much marijuana an out-of-state visitor can buy -- say an eighth of an ounce -- the state can make it prohibitively expensive for drug dealers to use the state as a source.  "If they're going to resell it, they'd have to pay retail 128 times to buy a pound," she says.  "Discussing something like that makes me almost want to giggle."

I continue to give this legal reform storm considerable attention because I strongly believe that the success or failure of the legalization experiment in Colorado over the next few years could have a profound impact on national drug policies and criminal justice systems.  Especially if advocates of marijuana reform are effective at documenting that the tangible benefits of regulated pot legalization in Colorado outweigh the tangible costs, I think it will be that much easier for these advocates to promote significant reform efforts in other states and at the federal level.

Importantly, I expect that advocates for pot reform in Colorado and elsewhere should have an easier time, at least in the short-term, highlighting tangible benefits from legalization than will opponents be able to pinpoint tangible costs.  Proponents of reform should be able to point quickly not only to significant new tax revenues, but also to related job creation and business development resulting immediately from the legalization of a product with significant demand among folks with significant resources.  In contrast, because the harms of increased pot use (like increased alcohol use) tend to be long-term, opponents are likely to have little other than the occassional drugged driving anecdote to use to highlight legalization's costs.  In addition, many state officials and business leaders in Colorado should, at least initially, be more invested in making legalization work than in advocating for a return to prohibition.

If I am right that reform advocates can and will report lots of early "success" with legalization in late 2013, then it seems likely that local, state and national pot policy becomes a very big issue is the 2014 election cycle.  And if swing state Colorado has continued "success" with legalization in a few years, it seems possible (perhaps even likely) that some or all of the mainstream candidates who run for President in 2016 will be on the side of reform at the federal level rather than persistent prohibition.

Maryland legislature moves one step closer to repealing state's death penalty

As reported in this Baltimore Sun article, the Maryland "General Assembly took an important step toward repealing Maryland's death penalty Thursday night when a key committee, for the first time in decades, approved a bill to end capital punishment."  Here is more on this development and Maryland's textured modern capital punishment story:

The Senate Judicial Proceedings committee voted 6-5 to send Gov. Martin O'Malley's death penalty bill to the Senate floor, with Sen. Robert A. Zirkin, a Baltimore County Democrat, dropping his long-held opposition to repeal of capital punishment and providing the decisive vote....

The bill repealing the death penalty is expected to go before the full Senate next week. Advocates say they have the votes there and in the House of Delegates to pass it, and they welcomed Thursday's action by a committee that has been seen as an obstacle to their position.

"I'm elated that the committee has come to a place where they recognize it's time to have this vote on the floor," said Jane Henderson, executive director of Citizens Against State Executions.  Henderson said the NAACP's push for repeal in Maryland was "instrumental" in changing the dynamic this year.

With Zirkin's vote, she said, repeal advocates count at least 26 Senate votes for the bill — two more than needed.  Henderson said she's confident the Senate would muster the 29 votes needed to end a filibuster if one is attempted.

Before casting his vote, Zirkin told the committee he would probably never be comfortable with his decision no matter which way he came down.  He said he was torn between his emotional response toward brutal murderers and the "legal and practical" arguments that the death penalty system doesn't work.  "As heinous and awful as these individuals are, I think it's time for our state not to be involved in the apparatus of executions," he said....

The Judicial Proceedings vote for repeal was the first for that committee since 1969, when the measure was defeated on the Senate floor, according to the Assembly's library staff. The panel temporarily blocked repeal in 2009, but the measure was brought to the floor in a rarely used parliamentary maneuver.  The bill was amended on the floor that year to retain the death penalty but to allow it only in cases where the prosecution could meet one of the highest evidentiary standards in the country.

Five men, all convicted murderers, remain on death row in Maryland for killings that go back as far as 1983.  The state has not executed a prisoner since 2005.  The Maryland Court of Appeals imposed a de facto moratorium in 2006 when it threw out the rules under which executions are carried out.  Those regulations have not been replaced amid complaints from death penalty supporters that the O'Malley administration has been dragging its feet....

On the death penalty, [a recent] poll found that Marylanders are closely divided — with 48 percent opposing repeal and 42 percent favoring it.  Other polls have found that when voters are asked whether life without parole would be an acceptable alternative, a majority say yes.

Death penalty repeal supporters have said they were determined to bring a "clean" bill to the Senate floor — that is, without any amendments creating exceptions for certain types of murders....

Senate President Thomas V. Mike Miller has said he expects that if the General Assembly approves a repeal law, opponents will gather enough signatures to petition the measure to a vote in the November 2014 election.  He said nothing should be included in the bill that could keep the issue from the voters.

US Sentencing Commission website back in action with full Booker report and FY 2012 sentencing data

I am very pleased to have discovered tonight that the US Sentencing Commission, just less than a month after Anonymous hacked into its website (basic here), now has its website up and running again.  And not only is the USSC website back, but it is now better than ever with these two new big sets of materials:

NEW Report to Congress on the Continuing Impact of United States v. Booker on Federal Sentencing

This report assesses the continuing impact on the federal sentencing system of the Supreme Court's decision in United States v. Booker.

NEW Final FY12 Quarterly Sentencing Update

This report includes an extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during fiscal year 2012. The report also provides an analysis of sentencing trends over five years for several key sentencing practices.

Congrats to the USSC for getting its on-line house back in order. I for one truly missed the USSC website when it was gone.

Recent related posts:

• US Sentencing Commission releases (and provides on-line here only) new Booker report
• Summary of key USSC findings in its big new Booker report
• Wall Street Journal covers USSC's new Booker report (and its unusual coverage)

Japan's new government embraces death penalty via three new executions

As reported in this new piece from The Guardian, headlined " Japan executions resume with three hangings: Hopes dashed of reprieve under Shinzo Abe's government with first sentences carried out since September 2012," Japan new government carried out its first set of executions this week.  Here are details on the latest executions and concerning Japan's recent capital punishment history:

Japan has carried out three executions -- the first since the country's conservative prime minister, Shinzo Abe, was elected last December, and a sign that Tokyo will defy international pressure to abolish the death penalty.

The justice ministry said the executions were carried out in the early hours of Thursday in three different locations.  One of the condemned men, Kaoru Kobayashi, had been sentenced to death for the abduction, sexual assault and murder of a seven-year-old schoolgirl in 2004.  He sent a photograph of the murdered girl to her mother.

The executions, the first since September 2012, could signal a return to more regular hangings under the current justice minister, Sadakazu Tanigaki.  "I ordered the executions after giving them careful consideration," Tanigaki told reporters.  "These were extremely cruel cases in which the victims had their precious lives taken away for very selfish reasons."

Amnesty International Japan condemned the executions. "The Japanese government cannot be excused from abiding by international human rights standards, just by citing opinion among the public," it said in a statement.  Opinion polls put support for capital punishment among the Japanese at about 80%.

Earlier this year Tanigaki indicated he would have no hesitation in signing execution orders; some previous holders of the post had refused to approve them, leading to a de facto moratorium.  "I will have to do what needs to be done according to the rule of law," he told journalists, adding that the secrecy surrounding hangings would continue.  Inmates are given very little notice before they are led to the gallows and their families are informed only after the executions have taken place.  "Even death row inmates have guarantees of privacy and we have to consider the feelings of their relatives," Tanigaki said. "I don't think it is necessarily a good idea to release more information."

At the end of last year Japan had 133 inmates on death row, the highest number since records were first kept in 1949.  They include Shoko Asahara, leader of the doomsday cult behind the 1995 sarin gas attacks on the Tokyo subway in which 13 people died and thousands were made ill.

The previous government, led by the left-of centre Democratic party of Japan (DPJ), executed nine people during its three years and three months in office.  That included an 18-month period from July 2010 in which no hangings took place.  In the three years to 2008 there were 28 executions under LDP administrations.

The DPJ raised hopes among abolitionists in 2010 when it established a panel to look into Japan's use of capital punishment but the body was disbanded without reaching a conclusion in January 2012.

George Will makes strong (conservative?) case against solitary confinement

George Will has this notable new Washington Post op-ed headlined "When solitude is torture." Here are excerpts:

“Zero Dark Thirty,” a nominee for Sunday’s Oscar for Best Picture, reignited debate about whether the waterboarding of terrorism suspects was torture. This practice, which ended in 2003, was used on only three suspects. Meanwhile, tens of thousands of American prison inmates are kept in protracted solitary confinement that arguably constitutes torture and probably violates the Eighth Amendment prohibition of “cruel and unusual punishments.”

Noting that half of all prison suicides are committed by prisoners held in isolation, Sen. Richard Durbin (D-Ill.) has prompted an independent assessment of solitary confinement in federal prisons. State prisons are equally vulnerable to Eighth Amendment challenges concerning whether inmates are subjected to “substantial risk of serious harm.”

America, with 5 percent of the world’s population, has 25 percent of its prisoners. Mass incarceration, which means a perpetual crisis of prisoners re-entering society, has generated understanding of solitary confinement’s consequences when used as a long-term condition for an estimated 25,000 inmates in federal and state “supermax” prisons — and perhaps 80,000 others in isolation sections within regular prisons. Clearly, solitary confinement involves much more than the isolation of incorrigibly violent individuals for the protection of other inmates or prison personnel.

Federal law on torture prohibits conduct “specifically intended to inflict severe physical or mental pain or suffering.” And “severe” physical pain is not limited to “excruciating or agonizing” pain, or pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death.” The severe mental suffering from prolonged solitary confinement puts the confined at risk of brain impairment.

Supermax prisons isolate inmates from social contact. Often prisoners are in their cells, sometimes smaller than 8 by 12 feet, 23 hours a day, released only for a shower or exercise in a small fenced-in outdoor space. Isolation changes the way the brain works, often making individuals more impulsive, less able to control themselves. The mental pain of solitary confinement is crippling: Brain studies reveal durable impairments and abnormalities in individuals denied social interaction. Plainly put, prisoners often lose their minds....

Mass incarceration is expensive (California spends almost twice as much on prisons as on universities) and solitary confinement costs, on average, three times as much per inmate as in normal prisons. And remember: Most persons now in solitary confinement will someday be back on America’s streets, some of them rendered psychotic by what are called correctional institutions.

"Defunding State Prisons"

The title of this post is the title of this new article now on SSRN authored by W. David Ball. Here is the abstract:

Local agencies drive criminal justice policy, but states pick up the tab for policy choices that result in state imprisonment.  This distorts local policies and may actually contribute to increased state prison populations, since prison is effectively “free” to the local decisionmakers who send inmates there.  This Article looks directly at the source of the “correctional free lunch” problem and proposes to end state funding for prisons. States would, instead, reallocate money spent on prisons to localities to use as they see fit — on enforcement, treatment, or even per-capita prison usage.  This would allow localities to retain their decision-making autonomy, but it would internalize the costs of those decisions.

Amusingly, in this post at Prawfs, Giovanna Shay describes David's work in this piece as part of the "Best Trilogy Since Star Wars."  That post explains the positive description this way:

Okay, that might be over-selling it just a bit.   But David Ball of Santa Clara recently has posted to SSRN the third in his trilogy of articles inspired by the California prison "realignment."...  In his three articles, David demonstrates that counties rely on state corrections facilities (and funding) to varying degrees, and makes proposals that he hopes could require counties to internalize the costs of their reliance on incarceration.... Whatever your ultimate assessment of David's proposals, this is one trilogy definitely worth checking out.  (I will spare you further Star Wars references).

Jacksons plead guilty and federal prosecutors recommend significant prison terms for both

This recent post, titled "You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?", engendered a lengthy debate over federal sentencing law and practice as applied to a pair of new high-profile federal defendants.  Now, this New York Times article, headlined "Jesse Jackson Jr. Pleads Guilty: ‘I Lived Off My Campaign’," reports that federal prosecutor, apparently parroting the recommendations of the federal sentencing guidelines, have already urged significant prison terms for Jesse and Sandi Jackson.  Here are the details:

Jesse L. Jackson Jr., the former Democratic representative from Illinois, pleaded guilty on Wednesday to one felony fraud count in connection with his use of $750,000 in campaign money to pay for living expenses and buy items like stuffed animals, elk heads and fur capes.

As part of a plea agreement, prosecutors recommended that Mr. Jackson receive a sentence of 46 to 57 months in prison. The federal judge overseeing the case, Robert L. Wilkins, is scheduled to sentence Mr. Jackson on June 28....

“Guilty, Your Honor — I misled the American people,” Mr. Jackson said when asked whether he would accept the plea deal. Mr. Jackson’s father, the Rev. Jesse L. Jackson, his mother and several brothers and sisters accompanied him to the hearing.

Mr. Jackson’s wife, Sandi, also accompanied him, and later in the day she pleaded guilty to a charge that she filed false income tax statements during the time that Mr. Jackson was dipping into his campaign treasury. Prosecutors said they would seek to have her sentenced to 18 to 24 months....

Last summer, Mr. Jackson took a medical leave from Congress and was later treated for bipolar disorder. After winning re-election in November, he resigned, citing his health and the federal investigation into his use of campaign money.

After the hearing, Mr. Jackson’s lawyer, Reid H. Weingarten, said his client had “come to terms with his misconduct.” Mr. Weingarten said that Mr. Jackson had serious health issues that “directly related” to his conduct. “That’s not an excuse, it’s just a fact,” Mr. Weingarten said.

Court papers released by federal prosecutors on Wednesday provided new details about how Mr. Jackson and his wife used the $750,000 in campaign money to finance their lavish lifestyle.

From 2007 to 2011, Mr. Jackson bought $10,977.74 worth of televisions, DVD players and DVDs at Best Buy, according to the documents. In 2008, Mr. Jackson used the money for things like a $466.30 dinner at CityZen in the Mandarin Oriental in Washington and a $5,587.75 vacation at the Martha’s Vineyard Holistic Retreat, the document said.

On at least two instances, Mr. Jackson and his wife used campaign money at Build-A-Bear Workshop, a store where patrons can create stuffed animals.  From December 2007 through December 2008, the Jacksons spent $313.89 on “stuffed animals and accessories for stuffed animals” from Build-A-Bear, according to the documents....

Documents released on Friday showed how Mr. Jackson used his campaign money to buy items like fur capes, celebrity memorabilia and expensive furniture.   Among those items were a $5,000 football signed by American presidents and two hats that once belonged to Michael Jackson, including a $4,600 fedora.

Because neither Jesse Jr. nor Sandi Jackson would appear to present any threat to public safety whatsoever, I am not quite sure why federal prosecutors believe that imposing a sentence "sufficient but not greater than necessary" to achieve congressional sentencing purposes requires a muti-year prison term for both of them.  I fully understand, of course, that the sentences here ought to be severe enough to serve general deterrence purposes.  But I am not sure that such extended prison terms are needed, especially if the Jacksons' sentences require them now to pay significant criminal fines and penalities in addition to forfeiting all ill-gotten gains and paying all their tax liabilities.

Former federal prosecutor Bill Otis has said repeatedly in recent threads that federal prosecutors should not have their sentencing recommendations defined by applicable sentencing guidelines.  But I surmise that the prosecutors' recommendations here that Jesse Jr. get 46 to 57 months in prison and that Sandi get 18 to 24 months are drawn directly from the guidelines.  (We can be quite sure that the defense attorneys in these cases will not draw their recommendations from the guidelines, and I would guess that the defense will end up making full-throated arguments for non-prison sentences for both Jesse Jr. and Sandi.)

Recent related post:

• You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?

Does Chaidez expand the reach of Padilla even while rejecting its retroactive application?

As noted in this prior post, the Supreme Court handed down four criminal justice decisions today. The most notable and potentially consequential ruling came in Chaidez v. US (available here) in which the Court, per Justice Kagan representing seven votes and speaking for six Justices (with Justice Thomas concurring separately), ruled that the Supreme Court's 2010 decision Sixth Amendment decision in Padilla is not to be applied retroactively to cases which were final when Padilla was handed down. 

Upon first blush, this ruling might seem a big loss for defendants, and it is for those like petitioner Roselva Chaidez, who hoped to undo her guilty plea because long ago she was poorly advised by her lawyer concerning the immigration consequences of her conviction.   But for those in the defense bar eager to see the Padilla Sixth Amendment rule expanded to cover other forms of collateral consequences, I think there more to like than dislike in Chaidez.  Throughout her opinion for the Court, Justice Kagan seems careful to avoid stating or even suggesting that Padilla is only about the unique "collateral consequence" of deportation.   Especially notable in this regard is a phrase on pp. 10-11 of the slip opinion which seems to state that "Padilla’s holding [is that] the failure to advise about a non-criminal consequence could violate the Sixth Amendment" (my emphasis added).

Though I have not followed closely the application of Padilla in lower courts, my sense is that at least a few courts have been keen to hold or suggest that the Padilla Sixth Amendment rule applies only to the unique collateral consequence of deportation.   After Chaidez, it should be at least a bit harder for lower courts to limit Padilla's prospective application to only immigration consequences.