Monday, August 11, 2014

Three distinct takes on AG Eric Holder's recent reservations about risk-based sentencing

Attorney General Eric Holder's significant speech at the National Association of Criminal Defense Lawyers' Annual Meeting a few weeks ago justifiably made headlines based on his expressions of concern about the use of risk assessment instruments in initial sentencing determinations (as previously discussed here).  Because this is such an important and dynamic topic, I am waiting until I have a big block of time to discuss with sophistication and nuance AG Holder's sophisticated and nuanced comments on this front. 

In the meantime, thankfully, a number of other insightful and sophisticated folks are talking up and about what AG Holder had to say.  For starters, in today's New York Times, LawProf Sonja Starr has this new commentary which starts and ends this way: 

In a recent letter to the United States Sentencing Commission, Attorney General Eric H. Holder Jr. sharply criticized the growing trend of evidence-based sentencing, in which courts use data-driven predictions of defendants’ future crime risk to shape sentences. Mr. Holder is swimming against a powerful current. At least 20 states have implemented this practice, including some that require risk scores to be considered in every sentencing decision. Many more are considering it, as is Congress, in pending sentencing-reform bills.

Risk-assessment advocates say it’s a no-brainer: Who could oppose “smarter” sentencing? But Mr. Holder is right to pick this fight. As currently used, the practice is deeply unfair, and almost certainly unconstitutional. It contravenes the principle that punishment should depend on what a defendant did, not on who he is or how much money he has....

Criminal justice policy should be informed by data, but we should never allow the sterile language of science to obscure questions of justice. I doubt many policy makers would publicly defend the claim that people should be imprisoned longer because they are poor, for instance. Such judgments are less transparent when they are embedded in a risk score. But they are no more defensible.

In addition, Judge Richard Kopf and defense attorney Scott Greenfield have this great new blogosphere back-and-forth on this topic:

All this is highly recommended reading!

August 11, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (6) | TrackBack (0)

Sunday, August 10, 2014

Can wine fraudster reasonably whine that his sentence was not reduced given wealth of victims?

FakewineThe question in the title of this post is prompted by this intriguing AP sentencing story about a guy who tried to get rich by selling very expensive (and sometimes fake) wine before its time to some very rich folks:

A collector was sentenced to 10 years in prison in New York Thursday for making bogus vintage wine in his California kitchen, and selling it for millions of dollars. In sentencing Rudy Kurniawan, 37, Manhattan U.S. District Judge Richard M. Berman said he wanted to send a message to others who might tamper with what people eat and drink. “The public at large needs to know our food and drinks are safe — and not some potentially unsafe homemade witch’s brew,” Berman said as he announced the prison term for Kurniawan. He also ordered him to forfeit $20 million and pay $28.4 million in restitution.

Kurniawan, an Indonesian citizen of Chinese descent, lowered his head as the judge explained the sentence and described Kurniawan’s quest as a “bold, grandiose, unscrupulous but destined-to-fail con.” Assistant U.S. Attorney Stanley Okula described Kurniawan as the “kingpin of counterfeiters,” a man who turned his Arcadia home into a laboratory where he poured wine into what appeared to be vintage bottles before attaching elegant fake labels and selling them for tens of millions of dollars.

“He did it to line his own pockets,” Okula told Berman, who concluded that Kurniawan had caused losses close to $30 million, primarily to seven victims. One of them was William Koch, a billionaire yachtsman, entrepreneur and wine investor. Koch testified at Kurniawan’s December trial, when Kurniawan was convicted of mail and wire fraud.

Before he was sentenced, Kurniawan twice apologized, saying “I’m really sorry” and expressing a desire to take care of his mother, who lives in California after receiving asylum....

His lawyer, Jerome H. Mooney, asked for leniency, saying his client got swept up in the thrill of mixing with California’s wealthiest people. “He was insecure, very insecure,” Mooney said. “He wanted to be them. He wanted to be part of it.”

Mooney said Kurniawan used some of his family’s fortune to buy $40 million of wine, eventually selling $36 million of it before he realized he could develop a business in which he created mixtures that tasted like the world’s greatest wines. He said Kurniawan’s victims were wealthy and aware that counterfeit wines were a frequent occurrence in the marketplace. “Nobody died. Nobody lost their savings. Nobody lost their job,” he said. The lawyer said the 2 1/2 years Kurniawan has served in prison was enough penalty, since he had lost everything and been branded a cheat.

Okula called the defense lawyer’s comments “quite shocking,” especially when he suggested that Kurniawan should get lenient treatment because he ripped off rich people rather than the poor. “Fraud is fraud,” he said.

Kurniawan was a connoisseur of counterfeiting who mastered label making, cork stamping, bottle waxing and recorking to create fake bottles of wine. Federal prosecutors said Kurniawan turned his California home into a wine factory. Restaurants sent him empty wine bottles, then he mixed together cheap wine and rebottled it as vintage wine. He also borrowed money against his collection of fake wines and owes a New York bank several million dollars....

For example, Kurniawan phonied up two bottles of 1934 Romanee-Conti and sold them for $24,000. A fake double-magnum of 1947 Chateau Petrus was auctioned for $30,000. “He made blends,” Downey said. “He was like a mad scientist.” But he made mistakes that raised eyebrows in the world of fine wine. Kurniawan put up for auction bottles of Clos Saint-Denis from the 1940s and 1950s even though the winery didn’t start producing that appellation until the 1980s.

August 10, 2014 in Offense Characteristics, White-collar sentencing | Permalink | Comments (9) | TrackBack (0)

"Scientizing Culpability: The Implications of Hall v. Florida and the Possibility of a 'Scientific Stare Decisis'"

The title of this post is the title of this notable new paper available on SSRN authored by Christopher Slobogin. Here is the abstract:

The Supreme Court’s decision in Hall v. Florida holds that “clinical definitions” control the meaning of intellectual disability in the death penalty context. In other words, the Court “scientized” the definition of intellectual disability. This article discusses the implications of this unprecedented move. It also introduces the idea of scientific stare decisis — a requirement that groups that are scientifically alike be treated similarly for culpability purposes — as a means of implementing the scientization process.

August 10, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

Saturday, August 9, 2014

Early data from Colorado suggest teenage use of marijuana is down since legalization

I have tended to assume that teenage use of marijuana would likely increase in the wake of legalization in Colorado, but the early data suggest a reduction in teenager use of marijuana since the stuff became legal for adults.  This recent news report, headlined "Pot Use Among Colorado Teens Appears to Drop After Legalization," provides these details:

Marijuana use among Colorado high school students appears to be declining, despite the state’s pioneering voter-approved experiment with legalization. According to preliminary data from the state’s biennial Healthy Kids Colorado Survey, in 2013 - the first full year the drug was legal for adults 21 and older - 20 percent of high school students admitted using pot in the preceding month and 37 percent said they had at some point in their lives.

The survey’s 2011 edition found 22 percent of high school students used the drug in the past month and 39 percent had ever sampled it. It’s unclear if the year-to-year decline represents a statistically significant change, but data from 2009 suggests a multiyear downward trend. That year 25 percent of high school kids said they used pot in the past month and 45 percent said they had ever done so.

The data released Thursday by the Colorado Department of Public Health and Environment also appears to show post-legalization pot use among Colorado teens was lower than the national average....

Supporters of marijuana legalization argue underage use will shrink as states impose strict age limits. Opponents of legalization, meanwhile, fear that declining perceptions of harm associated with the drug will lead to an uptick in teen use. According to the data released Thursday, students surveyed do have a lowered perception of harm - 54 percent perceived a moderate or great risk in using the drug, down from 58 percent in 2011 - but use did not increase.

“Once again, claims that regulating marijuana would leave Colorado in ruins have proven to be unfounded,” Marijuana Policy Project Communication Director Mason Tvert said in a statement. “How many times do marijuana prohibition supporters need to be proven wrong before they stop declaring our marijuana laws are increasing teen use?”

Tvert, co-director of Colorado’s successful Amendment 64 legalization campaign, said “the drop in teen use reflects the fact that state and local authorities have far more control over marijuana than ever before.” He argues “our goal should not be increasing teens’ perception of risk surrounding marijuana. It should be increasing teens’ knowledge of the actual relative harms of marijuana, alcohol, and other substances so that they can make smart decisions."

Foes of legalization haven't thrown in the towel. "No statistician would interpret that as being a decline," Kevin Sabet, co-founder of the anti-legalization group Smart Approaches to Marijuana, says of the 2 percentage point year-to-year drop. Sabet says it will be important to review county-level data when full survey results are released later this year and points out that state-licensed stores were not open in 2013.

August 9, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1) | TrackBack (0)

"May the government try John Hinckley for James Brady’s murder?"

The question in the title of this post is the headline of this astute analysis by Eugene Volokh concerning the legal question that emerged in the wake of James Brady's death being rules a homicide.  Here is how it begins:

The death of James Brady, President Ronald Reagan’s press secretary, at age 73 earlier this week has been ruled a homicide by a medical examiner. Brady was injured during an attempt on Reagan’s life in 1981. Let’s assume that the government can prove beyond a reasonable doubt that, but for the shooting, Brady would have lived longer (pretty much the legal test for causation in this sort of situation). Could the shooter, John Hinckley Jr., be tried for murdering Brady, even though he has already been tried for attempting to kill Brady, and found not guilty by reason of insanity?

The answer is no, likely for two different reasons.

August 9, 2014 in Celebrity sentencings, Procedure and Proof at Sentencing | Permalink | Comments (12) | TrackBack (0)

Friday, August 8, 2014

"The High Costs of Low Risk: The Crisis of America’s Aging Prison Population"

LogoThe title of this post is the title of this notable white paper from The Osborne Association that I found via this post from The Crime Report.  Here is the report's executive summary

For the past four decades, we have witnessed the most sustained and widespread imprisonment binge known throughout recorded human history. The facts are all too familiar: the United States has roughly 5 percent of the world’s population, yet is responsible for 25 percent of the world’s incarcerated population.  With an estimated 2.3 million adults in jail or prison and 1 out of every 32 adults under correctional or community supervision, the U.S. surpasses all other countries in sheer numbers and per capita incarceration rates.

The immense costs of incarceration have increasingly framed the conversation around reducing the prison population as a matter of fiscal responsibility and budgetary necessity. This discussion is often centered around reducing the arrest and prosecution of so-called “non-violent drug offenders.”  But these issues belie a much more pressing human and economic concern: the aging prison population, whose costs for incarceration and care will soon prove unsustainable if meaningful action is not taken. And though prison is expensive, cost is far from the only justification to move away from our reliance on incarceration, as the continued long-term incarceration of aging citizens has serious moral, ethical, public health, and public safety implications.

This paper aims to provide a brief contextual framework of the issues affecting elders in prison; to illuminate the ongoing efforts being undertaken to improve conditions within correctional facilities, increase mechanisms for release, and develop robust post-release services specifically targeting the unique needs of the aging population in reentry; and to sketch out preliminary recommendations to serve as a basis for further work to be done throughout several key sectors.

Despite their apparent interrelated interests in the aging prison population, the fields of gerontology, medical and mental health, philanthropy, and corrections have only sporadically interacted around this issue, and never as a unified voice.  Thus, a primary objective of this work is to encourage multi-sector dialogue, cross-pollination of ideas, and a shared foundational knowledge that will strengthen the connections among these fields and form a basis for unifying action.

We believe such a partnership will be well equipped to identify and engage in appropriate measures that will immediately impact the aging prison population, while also developing and implementing the necessary socio-structural architecture to effectively address long-term mechanisms of diversion, release, and reentry.

Austerity-driven approaches to shrinking budgets and increasing public discomfort with mass incarceration create an opportunity to seriously address the epidemic of America’s graying prison population and to imbue our criminal justice system with values and policies that are humane, cost-effective, and socially responsible.

August 8, 2014 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack (0)

Thursday, August 7, 2014

Greek priest helps poor inmates buy their way out of Greek prisons

This new AP article, headlined "In Greek crisis, priest roams prisons to buy inmates their freedom," reports on what might be viewed as a remarkable "alternative sentencing" program in Greece and the noble role played by a clergy to make the system a bit less economically unfair. Here are the details:

In Greek justice, money talks ...: Some inmates jailed for minor offences are allowed to buy their freedom — at an average rate of five euros per day.

With the rich at a clear advantage, Greek Orthodox priest Gervasios Raptopoulos has devoted his life to paying off the prison terms of penniless inmates.

The soft-spoken 83-year-old with a long white beard and black robes has helped more than 15,000 convicts secure their freedom over nearly four decades, according to records kept by his charity. The Greek rules apply only to people convicted of offences that carry a maximum five-year sentence, such as petty fraud, bodily harm, weapons possession, illegal logging, resisting arrest and minor drugs offences.

His work, however, is getting harder. Gervasios, 83, has seen his charity's funds, which all come from private donations, plummet in Greece's financial crisis. And there has been a sharp rise in inmates who can't afford to pay their way out of prison. "Where people would offer 100 euros ($135), they now give 50 ($67). But that doesn't stop us," he told The Associated Press in an interview.

The crisis, which has worsened already hellish prison conditions, makes his efforts even more pressing. "Our society rejects inmates and pushes them into the margins," he said. "People often say: 'It serves them right.'"

While behind bars, inmates also need money to buy necessities such as toilet paper and soap when the often meagre supplies provided by prison run out. Gervasios helps them, too, either with cash or handouts.

Greece has a prison population of about 13,000 — far above capacity — forcing authorities to cram inmates into police holding cells as they wait for a place in jail. Gervasios' charity allocates up to 500 euros ($675) for each prisoner they help, but the amount needed varies. Sometimes a small sum goes a long way. "Once, we gave a man 8.5 euros, which was what he lacked to gain his freedom," he said....

Many prisoners released by his efforts in Greece are foreigners. If they die in prison, the charity pays for their bodies to be taken home. Since launching the charity in 1978, Father Gervasios has received several state awards, including one of the highest civilian honors granted by the government. The Justice Ministry, responsible for Greece's prisons, is unstinting in its praise.

"For decades now, Father Gervasios Raptopoulos has carried out exceptional work, offering human warmth and solidarity to prisoners," said Marinos Skandamis, the ministry's secretary-general. It is inmates and prison staff who are the most grateful. "We would send him papers concerning prisoners who could be freed with a cash payment, and details on what they were in prison for," said Costas Kapandais, a former governor at Greece's Komotini and Diavata prisons. "He didn't turn down a single request."

August 7, 2014 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

"Sociology of Prison Life"

The title of this post is the title of this intriguing new little paper from across the pond authored by Deborah Drake, Sacha Darke and Rod Earle available via SSRN.  Here is the abstract:

Prison life both fascinates and repels. As with many aspects of punishment it attracts the interest of both academics and the general public. In this short and accessible account the principal issues of prison life are presented in a historical context that traces the emergence of focussed academic study of the way people live, and die, in prison.

The most influential theoretical perspectives are clearly set out alongside a discussion of their influence on research and analysis in the UK and beyond. Questions of women’s experience and that of black and minority ethnic prisoners are explored before a consideration of post-colonial prison studies is introduced. These studies of prison life beyond the axis of Europe and north America challenge some of the accumulated academic wisdom of Anglo-phone and European studies of prison life, indicating the potential of novel developments to come in an era which, unfortunately, shows no signs of declining to produce more and more prisons.

August 7, 2014 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack (0)

Wednesday, August 6, 2014

Some sentencing reminders about what stalled in the "do-nothing Congress"

I tend not to get into bashing Congress for failing to do stuff while locked into its current partison gridlock.  This is in part because I see gridlock reflecting important, real and deep policy divisions on certain critical public policy issues, and in part because I always worry federal legislation will (sometimes? often?) risk making certain problems worse rather than better through questionable one-size-fits-all approaches to governing.  (For a useful discussion of this basic perspective, I liked this recent Washington Post commentary by Jared Bernstein headlined "The do-nothing Congress is still better than the actively-do-harm Congress.")

Whatever one's broader views concerning the vices or virtues of a do-nothing Congress, proponents of federal sentencing reform cannot help but be somewhat disappointed that a lot of notable (and arguably badly needed) federal sentencing proposals are now stuck in neutral inside the Beltway.  For starters, as Bill Otis is quick to note in this new post at Crime & Consequences, it seems that all the bipartisan momentum that had built up around the Smarter Sentencing Act (and also some other reentry/back-end sentencing reform bills) has now come to something of a halt. 

For the record, I had always believed and feared that significant statutory reform to any major federal sentencing provisions would be an up-hill climb in a divided Congress, especially after seeing how hard it was to achieve (quite tepid) reform of extreme statutory crack sentencing provisions even when Congress was firmly in Democratic control.  A year ago, in this little post titled "Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?", I ruminated that if "Senator Rand Paul and other libertarian-leaning Senator were to become chairs of key Senate Judiciary subcommittees, I think the odds of significant federal criminal justice reforms getting through Congress might actually go up."  A year later, I continue to believe that folks particularly eager to see federal statutory sentencing reforms become a reality may now want to root for certain GOP members to become in charge in the Senate.

One other federal sentencing legistaive reform topic on my mind concerns federal child porn restitution awards in the wake of the mess the Supreme Court seemed to make on this front a few months ago through its Paroline decision.  Regular readers likely recall that lots of folks were advocating (some even predicting) that Congress could come up with a quick statutory fix to Paroline.  But, as of this writing, there has been little action on or serious discussion about a Paroline fix bill known as "Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2014." And I definitely fear that the need for, and likelihood of, any effective statutory Paroline fix goes down a bit every month as lower federal courts get in the habit of dealing with the doctrine that Paroline left behind.

Some prior related posts:

August 6, 2014 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

Mizzou complete uneventful execution with single dose of pentobarbital

As reported in this AP article, headlined "Missouri puts to death first inmate since botched execution," the first execution in the US since the messy Arizona execution last month took place every this morning without any problems. Here are the basics and the basic backstory:

A Missouri inmate was put to death Wednesday for raping and killing a college student in 1995, making him the first U.S. prisoner put to death since an Arizona lethal injection went awry last month. The Missouri Department of Corrections said Michael Worthington was executed by lethal injection at the state prison and was pronounced dead at 12:11 a.m. He is the seventh Missouri inmate executed this year.

Worthington had been sentenced to death for the attack on 24-year-old Melinda "Mindy" Griffin during a burglary of her Lake St. Louis condominium.... Worthington, 43, had predicted that the nation's high court and Gov. Jay Nixon would not spare him, insisting in a telephone interview with The Associated Press that he had accepted his fate....

Worthington's attorneys had pressed the Supreme Court to put off his execution, citing the Arizona execution and two others that were botched in Ohio and Oklahoma, as well as the secrecy involving the drugs used during the process in Missouri. Those three executions in recent months have renewed the debate over lethal injection. In Arizona, the inmate gasped more than 600 times and took nearly two hours to die. In April, an Oklahoma inmate died of an apparent heart attack 43 minutes after his execution began. And in January, an Ohio inmate snorted and gasped for 26 minutes before dying. Most lethal injections take effect in a fraction of that time, often within 10 or 15 minutes.

Arizona, Oklahoma and Ohio all use midazolam, a drug more commonly given to help patients relax before surgery. In executions, it is part of a two- or three-drug lethal injection.

Texas and Missouri instead administer a single large dose of pentobarbital — often used to treat convulsions and seizures and to euthanize animals. Missouri changed to pentobarbital late last year and since has carried out executions during which inmates showed no obvious signs of distress. Missouri and Texas have turned to compounding pharmacies to make versions of pentobarbital. But like most states, they refuse to name their drug suppliers, creating a shroud of secrecy that has prompted lawsuits.

In denying Worthington's clemency request, Nixon called Worthington's rape and killing of Griffin "horrific," noting that "there is no question about the brutality of this crime — or doubt of Michael Worthington's guilt." Worthington was sentenced to death in 1998 after pleading guilty to Griffin's death, confessing that in September 1995 he cut open a window screen to break in to the college finance major's condominium in Lake St. Louis, just west of St. Louis. Worthington admitted he choked Griffin into submission and raped her before strangling her when she regained consciousness. He stole her car keys and jewelry, along with credit cards he used to buy drugs. DNA tests later linked Worthington to the slaying.

Worthington, much as he did after his arrest, insisted to the AP on Tuesday from his holding cell near the death chamber that he couldn't remember details of the killing and that he was prone to blackouts due to alcohol and cocaine abuse. He said a life prison sentence would have been more appropriate for him....

On Tuesday, Griffin's 76-year-old parents anticipated witnessing Worthington die. "It's been 19 years, and I feel like there's going to be a finality," Griffin's mother, Carol Angelbeck, told the AP, after flying to Missouri from their Florida home. With the execution, "I won't have to ever deal with the name Michael Worthington again. I'm hoping for my family's sake, my sake, that we can go there (to the prison) and get this over with."

"In this case, there is no question in anyone's mind he did it, so why does it take 18 or 19 years to go through with this?" added Jack Angelbeck, Griffin's father. "This drags on and on. At this point, it's ridiculous, and hopefully it's going to end."

This DPIC page reports that there are more scheduled executions in the US until September, and then there are four executions scheduled in a eight-day period in the middle of the month. Three of those executions are planned in Missouri and Texas, which has had no real problem keeping their machineries of death humming along because of their use of pentobarbital as an execution drug. But Ohio has an execution scheduled for September 18 using a drug cocktail that has led to problems in the past. As a result, I suspect Ohio will once again be the state to watch most closely for interesting lethal injection developments and litigation in the weeks ahead.

August 6, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack (0)

Conservative Townhall publication provides more signs of modern political sentencing times

Townhall Magazine promotes itself as "the hottest monthly conservative magazine for politics, investigative reporting, news, conservative humor, culture, and commentary from your favorite authors and personalities." For that reason (and others), I was intrigued to see that the August issue of Townhall Magazine has this lengthy new article headlined "Should Conservatives Oppose the Death Penalty?" The article has two Townhall editors debating "whether or not the United States should keep using the death penalty."   In addition, the columnist section of the Townhall website today has these three notable new columns on topics frequently discussed on this blog (and, especially, championing positions I have often advocated):

Jonah Goldberg:  "Liberals Come Late to the Pot Party"

Harry R. Jackson, Jr.:  "Restoring Prisons and Prisoners on Our Watch"

Jacob Sullum:  "Why Prosecutors Love Mandatory Minimums: Seeking to Shorten 'Draconian' Sentences, the Attorney General Faces Opposition From His Underlings"

I have long said on this blog that I thought a lot of my positions concerning mass incarceration, severe mandatory minimum sentencing provisions and the modern drug war ought to appeal to principled anti-big-government concervatives.  This latest collection of pieces via Townhall confirms these views for me.

August 6, 2014 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 5, 2014

Another round of heated debate over guilt of executed Cameron Todd Willingham

CNN has this lengthy new article reviewing some new developments in the long-running debate over the prospect that Texas killed an innocent man when it executed Cameron Todd Willingham in February 2004.  Here are excerpts from the CNN piece:

More than a decade after his execution, Cameron Todd Willingham is still a pawn in the debate over the death penalty.

Opponents of capital punishment say Willingham's is a clear case of an inmate being wrongfully executed, while the original prosecutor and state of Texas have been steadfast in their assertion that Willingham should be no one's cause célèbre.

"Willingham was a psychopathic killer who murdered his three children," John H. Jackson, the former Navarro County prosecutor who handled the case in 1992, wrote in an e-mail. "He submitted to a polygraph with predictable results, he confessed the murders to his wife, the trial evidence established two prior incidents when he tried to kill his children in utero by vicious attacks on his wife."

Willingham was executed in February 2004 after being found guilty in an arson that killed his children, 2-year-old Amber and 1-year-old twins Karmon and Kameron.  His family has fought to have his name cleared ever since.

The Innocence Project filed a grievance Monday with the State Bar of Texas, asking that it investigate the now-retired prosecutor.  The grievance alleges Jackson "fabricated and concealed evidence," including documents indicating that a jailhouse informant received special treatment in exchange for his testimony, which Jackson and the informant both claimed was not true during the original trial....

A story in The Washington Post on Sunday, written by the Marshall Project, a journalistic group focusing on criminal justice matters, said Willingham's case is especially important to death penalty opponents because it could provide the first case showing "conclusively that an innocent man was put to death in the modern era of capital punishment."...

Appellate courts, including the Supreme Court, declined to stop Willingham's execution, yet in his final words, he claimed to be "an innocent man convicted of a crime I did not commit." Since his conviction, the science employed by investigators to determine that the fatal fire was an arson, as well as a post-conviction claim by his ex-wife, Stacy Kuykendall, that Willingham confessed to her, have been matters of debate.

The Marshall Project story reports that informant Johnny Webb, whose testimony was integral to convicting Willingham, now says he lied on the witness stand in exchange for favors from Jackson. The story also alleges that correspondence between Jackson and Johnny Webb indicate the two were in cahoots. Jackson told CNN the letters are being misconstrued....

Little seems certain in Willingham's case, outside the fact that death penalty opponents and proponents staunchly disagree over his guilt. Disagreement has been a mark of the case, as Willingham's own defense attorney told CNN in 2009 that he thought his client was guilty, while one of the jurors who convicted him expressed doubts.

Texas Gov. Rick Perry has defended his decision not to stay Willingham's execution, calling him a "monster." Meanwhile, Innocence Project Co-Director Barry Scheck said in the Monday news release that not only should the verdict be called into question, but so should the man who prosecuted Willingham.

The new Marshall Project report on the Willingham case is available at this link, and Kent Scheidegger at Crime & Consequences has collected his writing about the case in this new post.

August 5, 2014 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

Notable discussion of traffic fatalities in Colorado after marijuana legalization

Radley Balko has this notable new Washington Post piece headlined "Since marijuana legalization, highway fatalities in Colorado are at near-historic lows." The full piece merits a full read for those thinking about the potential public safety impact of marijuana, and here are excerpts:

It makes sense that loosening restrictions on pot would result in a higher percentage of drivers involved in fatal traffic accidents having smoked the drug at some point over the past few days or weeks. You’d also expect to find that a higher percentage of churchgoers, good Samaritans and soup kitchen volunteers would have pot in their system. You’d expect a similar result among any large sampling of people. This doesn’t necessarily mean that marijuana caused or was even a contributing factor to accidents, traffic violations or fatalities.

This isn’t an argument that pot wasn’t a factor in at least some of those accidents, either. But that’s precisely the point. A post-accident test for marijuana metabolites doesn’t tell us much at all about whether pot contributed to the accident....

It seems to me that the best way to gauge the effect legalization has had on the roadways is to look at what has happened on the roads since legalization took effect.... [R]oadway fatalities this year are down from last year, and down from the 13-year average. Of the seven months so far this year, five months saw a lower fatality figure this year than last, two months saw a slightly higher figure this year, and in one month the two figures were equal....

What’s notable here is that the totals so far in 2014 are closer to the safest composite year since 2002 than to the average year since 2002. I should also add here that these are total fatalities. If we were to calculate these figures as a rate — say, miles driven per fatality — the drop would be starker, both for this year and since Colorado legalized medical marijuana in 2001. While the number of miles Americans drive annually has leveled off nationally since the mid-2000s, the number of total miles traveled continues to go up in Colorado. If we were to measure by rate, then, the state would be at lows unseen in decades.

The figures are similar in states that have legalized medical marijuana. While some studies have shown that the number of drivers involved in fatal collisions who test positive for marijuana has steadily increased as pot has become more available, other studies have shown that overall traffic fatalities in those states have dropped. Again, because the pot tests only measure for recent pot use, not inebriation, there’s nothing inconsistent about those results....

Of course, the continuing drop in roadway fatalities, in Colorado and elsewhere, is due to a variety of factors, such as better-built cars and trucks, improved safety features and better road engineering. These figures in and of themselves only indicate that the roads are getting safer; they don’t suggest that pot had anything to do with it. We’re also only seven months in. Maybe these figures will change. Finally, it’s also possible that if it weren’t for legal pot, the 2014 figures would be even lower. There’s no real way to know that. We can only look at the data available. But you can bet that if fatalities were up this year, prohibition supporters would be blaming it on legal marijuana.

August 5, 2014 in Marijuana Legalization in the States, National and State Crime Data, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack (0)

Is Jodi Arias really going to represent herself at her Arizona death penalty retrial?

The question in the title of this post is prompted by this new report from Arizona headlined "Jodi Arias to represent self in Arizona death penalty sentencing retrial." Here are the basics:

An Arizona judge agreed on Monday to allow convicted murder Jodi Arias to represent herself during a sentencing retrial to determine if she will face the death penalty for killing her ex-boyfriend in 2008, a court spokesman said.

Judge Sherry Stephens granted the request by Arias during a hearing in Maricopa County Superior Court, allowing her to act as her own lawyer when the retrial begins in September, said spokesman Vincent Funari.

Stephens issued the ruling from the bench after cautioning the former California waitress that she felt it would not be in her best interest to take over from her current attorneys, Funari said.

Arias was convicted last year of murdering Travis Alexander in his Phoenix-area home six years ago in what authorities said was a bloody crime scene. He was found slumped in his shower, stabbed multiple times, his throat slashed and shot in the head.

The same jury that convicted Arias in a high-profile trial that was live-streamed on the Internet to tens of thousands of viewers found her eligible for the death penalty, but deadlocked on whether she should actually be put to death.

The sentencing phase retrial will see a new jury impaneled next month to weigh her fate, but will not be broadcast live. If the new jury also deadlocks on capital punishment, a judge will sentence Arias to spend either her natural life in prison, or life with the possibility of parole after 25 years.

Monday's decision came during a rare open session in the case, which has mostly been argued in recent months behind closed doors. Funari said while Arias will represent herself, her current attorneys will act as advisory counsels.

Some prior posts on the Arias case:

August 5, 2014 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack (0)

"The Miller Revolution"

The title of this post is the title of this notable new article by Cara Drinan now available via SSRN. Here is the abstract:

In Miller v. Alabama, the Supreme Court held that the Eighth Amendment prohibits mandatory life without parole sentences for juveniles — even those convicted of homicide. In this Article, I argue that the Miller decision was, indeed, revolutionary and that, if lower courts and legislators heed the moral leadership of the Miller Court, they could set in motion a return to the juvenile justice model this country began with more than a century ago.

This article proceeds in three parts.  Part I traces the development of mandatory juvenile sentences in this country and identifies two key forces driving that development: the practice of transferring juvenile cases to adult court and the emergence of determinate sentencing schemes.  Part II is the heart of the article.  It examines the Miller decision, as well as its immediate predecessor cases, at a granular level.  Having done so, Part II surveys the numerous calls for an expansive reading of Miller that academics and advocates have made to date.  Part II then shifts to argue that, indeed, Miller should be read expansively, but that some corollaries of Miller are more readily defensible than others.  In particular, I argue that Miller lays the foundation for: 1) the elimination of mandatory minimums as they apply to children and 2) the creation of procedural safeguards for children facing life without parole comparable to those in place for adults facing the death penalty.  Part III addresses the likely objections to my two specific proposals and maintains that, despite the concerns of the dissenting Justices in Miller, there are several limiting principles even to an expansive reading of Miller.  Finally, by way of conclusion, I note that already there are signs of progressive juvenile justice reform at the state level consistent with the reading of Miller I propose herein and that, in some ways, the Miller revolution is already underway.

August 5, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack (0)

Judge denies Florida sex offender's request to be physically castrated

As reported in this local article, a judge in Florida has felt compelled to reject a sex offender's notable request for a notable alternative punishment.  Here are the details: 

Lester Leroy Williams is serving ten years in prison for sexually battering a child. Back in 2008, he was also sentenced to 4.5 years of probation. Recently, the 35-year-old Williams made a bizarre request: He wants the state to physically castrate him.

In a letter Williams wrote at the Union Correctional Institution in Raiford, he asked Fifth Judicial Circuit Court Judge Hale Stancil to modify his sentence to include castration at the expense of the state. But Stancil denied the unusual request this past Tuesday, stating his court didn't have jurisdiction to rule over the case.

"In 32 years, I have never had this request before," said Stancil, who spoke about the case for the first time to New Times. "I know there is chemical castration, but I've never had an inmate ask to be physically castrated before. I don't think I have authority as a judge to order such a thing."...

Florida already allows certain sex offenders to receive medroxyprogesterone acetate (MPA) treatment as part of their rehabilitation. MPA, an artificial hormone, is normally used to treat symptoms of menopause in women, but when used by men, it decreases testosterone to pre-puberty levels.  MPA has been used on sex offenders for years as a way of reducing the chances of recidivism by diminishing the sexual urges of men who have long histories of committing sex crimes.

According to Florida law, courts must sentence repeat offenders of sexual battery to MPA treatment but may choose to administer it to first-time offenders. The treatment does not replace or reduce any other penalty the court could impose, and the courts can order the treatment to last up to life....

The law stipulates though that instead of undergoing the chemical form of castration, sex offenders may -- of their own volition -- ask a court for physical castration, which is what Williams has done. Though the legal leeway seems to exist, it is rarely chosen -- Williams may be the first in Florida to request it even though he isn't even required to have MPA treatment.

"Sex offenders are wretched," said Maryam Sweirki, 25, a Miami advocate for victims of sexual assault. "If he can't handle his penis, then I'm for his decision to take his weapon away."

However, critics of castration believe it to be a cruel and unusual punishment that violates human and reproductive rights; with other critics arguing the law that allows for MPA castration, though it applies to both genders, is unequal in punishment because it has a greater impact on males.  Some of the side-effects related to the drug (besides decreased sexual urges) are: a loss of body hair, hot and cold flashes, impotence, depression, thrombosis, and weight gain.

Though it has been shown to decrease the number of reoffenders, some opponents further argue that castration isn't a panacea for all sex offenders because some of them are motivated to sexually abuse because of intense feelings of hatred and hostility, rather than sexual desire.

Some related older posts:

August 5, 2014 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

Monday, August 4, 2014

Check your local PBS listings for "15 to Life: Kenneth's Story"

1234959_719906504692104_315759303_nPremiering this week on PBS stations is this new documentary titled "15 to Life: Kenneth's Story." The documentary discusses life without parole sentences for juvenile offenders with a focus on a Florida defendant, Kenneth Young, who at age 15 received four consecutive life sentences for a series of armed robberies. Here is part of the description of the film from this PBS website:

In June 2000, 14-year-old Kenneth Young was convinced by a 24-year-old neighborhood crack dealer — Kenneth's mother's supplier — to join him on a month-long spree of four armed robberies.  The older man planned the Tampa, Fla. heists and brandished the pistol— and, on one occasion, he was talked out of raping one of the victims by his young partner.  Fortunately, no one was physically injured during the crimes, although the trauma that resulted was immeasurable.

When they were caught, Kenneth didn't deny his part.  It was his first serious scrape with the law.  But at 15, he was tried under Florida law as an adult.  Astoundingly, he received four consecutive life sentences — guaranteeing that he would die in prison.  15 to Life: Kenneth's Story follows the young African-American man’s battle for release, after more than 10 years of incarceration, much of it spent in solitary confinement.  The film is also a disturbing portrait of an extraordinary fact: The United States is the only country in the world that condemns juveniles to life without parole.

Kenneth’s sentence was not a rarity.  As 15 to Life shows, there are more than 2,500 juveniles serving life sentences in the United States for non-lethal crimes, as well as for murder.  In the 1990s, many states reacted to a rise in violent youth crimes by amending their laws to allow more juveniles to be tried as adults.  Then, in 2010, the U.S. Supreme Court ruled in Graham v. Florida that life sentences for juveniles convicted of crimes other than murder were unconstitutional.  That made 77 Florida inmates, including Kenneth, eligible for early release.  But how would the Florida courts, historically in favor of juvenile life sentences, apply the Supreme Court decision to a decade-old case?...

At the core of the story, of course, stands Kenneth, now 26, who is candid about his crimes.  He says he has followed a path of self-improvement and is remorseful for what he did, even as he remains flabbergasted about his punishment.  (Oddly enough, in a separate trial, Jacques Bethea, the older man who organized the robberies and who carried the gun, received a single life sentence.)

At his hearing for a reduced sentence, Kenneth tells the court, "I have lived with regret every day ... I have been incarcerated for 11 years and I have taken advantage of every opportunity available for me in prison to better myself ... I am no longer the same person I used to be.  First Corinthians, Chapter 13, Verse 11 says: 'When I was a child I thought as a child.  When I became a man I put away all childish things.'  I want to turn around and apologize to my victim for what I did."

Kenneth's plight elicits mixed reactions.  While some of his victims are inclined to see him let go, others, along with the prosecutor, defend the original punishment.  Kenneth's contention that the older man coerced his cooperation by threatening his mother is dismissed, because he didn't speak up as a 15-year-old at his original trial.  And arguments that Kenneth's new sentence should take into account his rehabilitation may not convince this Florida court.

UPDATE A helpful reader noted that through September 3, folks can view the program online at the PBS website here.

August 4, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Film, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2) | TrackBack (0)

Sixth Circuit reverses federal forced labor conviction based on ordering kids to do household chores

The Sixth Circuit this morning handed down a fascinating ruling in a case which reinforces my fear that that modern federal prosecutors may often have too much discretionary criminal justice power as well as my optimism that a wise modern judiciary can and will often play a critical role in checking that power.  The unanimous panel opinion in US v. Toviave, No. 13-1441 (6th Cir. Aug. 4, 2014) (available here), starts and ends this way:

Child abuse is a state crime, but not a federal crime. Forced labor is a federal crime, 18 U.S.C. § 1589, but the statute obviously does not extend to requiring one’s children to do their homework, babysit on occasion, and do household chores. Only by bootstrapping can this combination of two actions that are not federal crimes — child abuse and requiring children to do household chores — be read as a federal crime.

Defendant Toviave brought four young relatives from Togo to live with him in Michigan. After they arrived, Toviave made the children cook, clean, and do the laundry.  He also occasionally made the children babysit for his girlfriend and relatives.  Toviave would beat the children if they misbehaved or failed to follow one of Toviave’s many rules.  While his actions were deplorable, Toviave did not subject the children to forced labor.  The mere fact that Toviave made the children complete chores does not convert Toviave’s conduct — what essentially amounts to child abuse — into a federal crime.  Toviave’s federal forced labor conviction must accordingly be reversed....

[V]ictims in the other [discussed forced labor] cases were denied almost all contact with the outside world.  The evidence in this case shows that the children attended school, spent time with relatives and Toviave’s friends, engaged in recreational activities, and went on vacations with Toviave.  The children also interacted with teachers, classmates, and teammates on sports teams.  Viewing the evidence favorably to the government, it is true that the children probably did not have the same freedom as many other children.  For example, Toviave did not let the children have friends over, go to sleep-overs, or freely use the phone.  But their isolation was not nearly as severe as the victims in other forced labor cases.  Finally, we have found no other cases where the government convicted a victim’s relative of forced labor.  This absence is likely explained by the difficulty of drawing a line between what amounts to forced labor and what are widely accepted childrearing practices in the context of a familial relationship where the labor at issue consists entirely of household chores.

The line between required chores and forced labor may be a fine one in some circumstances, but that cannot mean that all household chores are forced labor, with only the discretion of prosecutors protecting thoughtful parents from federal prosecution.  The facts of this case fall on the chores side of the line.

Because the Government did not present sufficient evidence of forced labor, we need not reach the other issues in this case.  Toviave’s convictions for forced labor are REVERSED.

August 4, 2014 in Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack (0)

"Women in the Federal Offender Population"

The title of this post is the title of this intriguing new document from the US Sentencing Commission as part of its documents as part of its terrific series of reader-friendly "Quick Facts" publications.  (Regular readers may recall from this prior post that the USSC describes these publications as a way to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")  Here are some of the data highlights from this new publication that I found especially interesting:

While women continue to make up a small percentage of federal offenders, the proportion of federal offenders who were women rose slightly from 12.1% in fiscal year 2009 to 13.3% in fiscal year 2013....

In fiscal year 2013, more than two-thirds of female offenders were sentenced for drug trafficking (33.7%), fraud (23.9%), or immigration (14.3%) offenses....

The largest racial group of female drug trafficking offenders was Hispanic (43.6%) followed by White (35.6%), Black (16.3%), and Other Races (4.5%).

The largest racial group of female fraud offenders was White (42.5%) followed by Black (35.8%), Hispanic (15.5%), and Other Races (6.2%).

Most female immigration offenders were Hispanic (86.4%), followed by White (5.4%), Other Races (4.9%), and Black (3.3%).

The average age of these offenders at sentencing was 38 years.

Most female offenders (70.8%) had little or no prior criminal history (i.e., assigned to Criminal History Category I).

Weapons were involved less frequently (4.1%) in cases involving females than in cases involving males (8.6%).

Three-quarters (75.6%) of female offenders were sentenced to imprisonment, which is less than the rate for male offenders in fiscal year 2013 (93.5%).

Female drug trafficking offenders were often sentenced to imprisonment (90.3%), although at a lower rate than male drug trafficking offenders in fiscal year 2013 (97.3%).

Female fraud offenders were sentenced to imprisonment at a lower rate (61.1%) than were male fraud offenders (74.1%).

Female offenders were convicted of a statute carrying a mandatory minimum penalty at a lower rate (24.0%) than were male offenders (26.9%).

The average sentence length for females convicted of a statute carrying a mandatory minimum penalty was 60 months.

The average sentence length for females not convicted of a statute carrying a mandatory minimum penalty was 17 months.

For each of the past five years, female offenders were sentenced within the guideline range in less than half of all cases (49.7% in fiscal year 2009 and 40.2% in fiscal year 2013), compared to 55.3% and 49.8% for male offenders.

The rate of government sponsored below range sentences increased from 28.0% in fiscal year 2009 to 32.9% in fiscal year 2013, compared to 26.3% and 28.7% for male offenders.

The percentage of female offenders that received a non-government sponsored below range sentence increased over the last five years (from 21.1% of cases in fiscal year 2009 to 25.8% in fiscal year 2013), compared to 16.3% and 19.2% for male offender

The average guideline minimum for female offenders has increased over the last five years from 36 months in fiscal year 2009 to 41 months in fiscal year 2013.

The average sentence imposed slightly increased over the last five years, from 25 months in fiscal year 2009 to 27 months in fiscal year 2013.

Like all good and detailed and sophisticated sentencing data, there are many ways to "spin" all these numbers. But midst all the numbers, the most glaring of the data points seem to be a not-insignificant increase over the last five year of the average guideline minimum and the average imposed sentence for female offenders in the federal system even despite a significant reduction in crack sentences during that period.

August 4, 2014 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners | Permalink | Comments (1) | TrackBack (0)

Will any Justices express any concerns about drug secrecy after third ugly execution?

ImagesThe question in the title of this post is prompted by this new AP article headlined "Justices silent over execution drug secrecy." Here are excerpts:

No one on the Supreme Court objected publicly when the justices voted to let Arizona proceed with the execution of Joseph Wood, who unsuccessfully sought information about the drugs that would be used to kill him.

Inmates in Florida and Missouri went to their deaths by lethal injection in the preceding weeks after the high court refused to block their executions. Again, no justice said the executions should be stopped.

Even as the number of executions annually has dropped by more than half over the past 15 years and the court has barred states from killing juveniles and the mentally disabled, no justice has emerged as a principled opponent of the death penalty.

This court differs from some of its predecessors. Justices William Brennan and Thurgood Marshall dissented every time their colleagues ruled against death row inmates, and Justices Harry Blackmun and John Paul Stevens, near the end of their long careers, came to view capital punishment as unconstitutional. "They're all voting to kill them, every so often. They do it in a very workmanlike, technocratic fashion," Stephen Bright, a veteran death penalty lawyer in Georgia, said of the current court.

Wood's execution on July 23 was the 26th in the United States this year and the third in which prisoners took much longer than usual to die. Wood, convicted of killing his estranged girlfriend and her father, was pronounced dead nearly two hours after his execution began, and an Associated Press reporter was among witnesses who said Wood appeared to gasp repeatedly, hundreds of times in all, before he died.

Justice Ruth Bader Ginsburg said she and her colleagues are aware of what happened in Arizona, though she declined to say how the court would rule on a plea to stop the next scheduled execution -- of Michael Worthington on Wednesday in Missouri. "Your crystal ball is as good as mine," she said last week in an interview with The Associated Press.

The court's rejection of Wood's claim that he was entitled to learn more about Arizona's procedures and the source of the execution drugs came at the end of protracted legal wrangling. A federal judge in Arizona initially denied Wood's claim. The federal appeals court in San Francisco then granted a reprieve. But the justices reversed that ruling in a brief order. The court said the judge who initially ruled against Wood "did not abuse his discretion."...

The substance of capital punishment issues usually finds its way in front of the justices when there is no time pressure. In January, the court heard arguments in a case over a Florida law that used a rigid threshold in intelligence test scores in cases of borderline mental disability. In late May, a five-justice majority led by Anthony Kennedy struck down the law because it "contravenes our nation's commitment to dignity."

The soaring language that Kennedy often favors in his opinions has led some death penalty experts to believe that he eventually will provide the fifth vote, along with those of the court's four liberal justices, to end or severely restrict the use of the death penalty. "It is impossible to reconcile that language with the secrecy surrounding lethal injections," said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund. "My assumption is quite a lot is happening behind the scenes."

Ginsburg cautioned not to read too much into the absence of public dissent when the court rejects 11th-hour appeals to stop executions. "When a stay is denied, it doesn't mean we are in fact unanimous," she said.

Still, Ifill said the court's unwillingness so far to deal with states' reluctance to reveal much about the provenance of lethal injection drugs is troubling. "I'm disappointed after all the revelations that at least some justices weren't prepared to say something pretty strong," she said.

The old saying, "Third time's a charm," has me inclined to predict that we may end up hearing from at least one Justice or two concerning execution drug secrecy the next time this issue is effectively raised before the Supreme Court. Whether that occurs this week on later this year, I suspect this issue will have some legs if states continue to have to experiment with new execution drug protocols and continue to preclude capital defendants from knowing all the experimental details.

A few recent related posts:

August 4, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack (0)