Wednesday, October 29, 2014

Federal judge (improperly?) delays imposing max sentence on fraudster to allow time to consider withdrawal of plea

This Newsday article provide an account of a seemingly unusual development as a federal district judge was about to throw the book at a high-profile white-collar defendant.  Here are the details:

Onetime New York Islanders part owner Stephen Walsh was hit with the maximum sentence of 20 years for a $50 million fraud on Wednesday, but the judge postponed imposing it to let stunned defense lawyers consider an appeal or voiding his guilty plea.

Walsh, 70, of Sands Point, an Islanders executive and co-owner from 1991 to 2000, was accused in 2009 of bilking investors in his WG Trading Company to finance a lavish lifestyle. He pleaded guilty in April, and partner Paul Greenwood pleaded guilty in 2010.

At the sentencing before U.S. District Judge Miriam Cedarbaum in Manhattan, Walsh said he was "deeply sorry," while his lawyer argued most investors were made whole and said Walsh deserved credit for charitable work, such as co-founding a Long Island Alzheimer's foundation. They asked for 18 to 24 months with community service.

But Cedarbaum was unmoved, noting that the scam went on for 13 years and Walsh fought the charges for five years before pleading guilty and taking responsibility. "The proceeds of this scheme were used for personal extravagances and high living," she said. "Lots of people lost lots of money, and some of it will trickle back to them, but that does not justify using it for your own benefit and spending it on frivolous things."

The judge said she was imposing the maximum penalty for securities fraud of 20 years. That was the sentence recommended by probation officers, called for under federal sentencing guidelines and urged by prosecutors.

Walsh, as part of his plea, had agreed to not appeal any sentence up to 240 months.  But white-collar defendants frequently get more lenient treatment -- in part because many judges feel federal guidelines overemphasize the significance of the amount of loss in calculating sentences -- and the sentence produced gasps from Walsh's friends and family in the gallery. "Oh my God!" said one woman.

Defense lawyer Michael Tremonte first asked Cedarbaum to impose 20 years and a day, so it would become appealable.  "I don't think anyone expected we would be at the outer range of the hypothetical guideline range," he said.  "There is not another case even remotely like it where a 20-year sentence has been imposed."

The judge refused, telling him that she would not circumvent a plea agreement in which Walsh gave up his right to appeal the sentence.  But she agreed to postpone imposing the sentence until Tuesday, to give Tremonte the chance to consult with Walsh and research grounds for withdrawing the plea. Tremonte and prosecutors had no comment after the hearing.

Walsh and Greenwood were charged soliciting $7.6 billion, mostly from institutional investors, to pursue a conservative investing strategy, and then misappropriating it. Walsh allegedly used investor money to finance a divorce settlement and fund businesses for his children, and Greenwood purchased expensive stallions and high-priced teddy bears.

I am inclined to be a bit sympathetic to the defense side here because I find troublesome any and all waivers of the right to appeal a sentence.  That said, I would guess that the defendant here had sound legal representation and knowingly agreed to a plea deal that included such a waiver, and thus I am not especially inclined to believe he should now be able to back out of the deal because it did not work out the way he expected.   And I am not aware of any case in which a judge defered imposition of a sentence to give the defendant a chance to try to undo a plea deal simply because that judge was going to impose a long sentence that was, as reported above, "recommended by probation officers, called for under federal sentencing guidelines and urged by prosecutors."

October 29, 2014 in Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, October 27, 2014

Prosecutors in South Africa indicate they plan to appeal Pistorius outcome

As reported in this article, headlined "South Africa prosecutors to appeal against Pistorius sentence," it appears that the Blade Runner is not done running from serious legal difficulties. Here are the bascis:

South Africa’s state prosecutor plans to appeal against Oscar Pistorius’s culpable homicide conviction and five-year prison sentence for shooting his girlfriend Reeva Steenkamp, it said on Monday.

Nathi Mncube, spokesman for the National Prosecuting Authority, said the NPA expected to file papers in the next few days. Until the papers were filed, it would not announce the grounds for appeal, it said.

But Pistorius’s conviction for culpable homicide has drawn criticism from some legal commentators. After the athlete, a double-amputee who starred at the 2012 London Olympics and Paralympics, was sentenced last week, there was more controversy when lawyers said he could serve as little as 10 months, or a sixth of the five-year term.

In South Africa, an appeal can only be made on a matter of law, “where we think . . . the judge made an error in interpretation and in the manner in which she applied the law to the facts”, Mr Mncube said.

Pistorius had been charged with premeditated murder after shooting Steenkamp, a 29-year-old model and law graduate, four times through the locked toilet door in a bathroom at his home in the early hours of Valentine’s Day last year.   But Judge Thokozile Masipa ruled that the prosecution failed to show Pistorius had intent to kill, while saying there was “no basis on which this court could make inferences of why the accused would want to kill the deceased”. Instead, she appeared to believe Pistorius’s version of events, despite describing the 27-year-old as a “poor” and “evasive” witness.

October 27, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (0) | TrackBack

"Truth, Justice, and the American Style Plea Bargain"

The title of this post is the title of this article by Ken Strutin now available via SSRN. Here is the abstract:

In the 2011 term, the Supreme Court decided two cases, Missouri v. Frye and Lafler v. Cooper, which highlighted whether the Sixth Amendment right to counsel safeguarded the integrity of the trial or encompassed non-trial facets such as the plea bargain.  This line of decisions has been followed most recently by Burt v. Titlow, which further defined the role of postconviction record-making in assessing the fundamental question: Did the right to effective assistance of counsel protect the accuracy of the verdict or the fairness of the process?

Through the prism of recent Supreme Court plea bargaining decisions this Article examines their implications for the competing goals of truth versus process.  Part I frames the argument about the nature of criminal justice and the tension between fact-finding trials and resolution making plea negotiations.  Then, those values are scrutinized in the context of three recent and watershed Supreme Court decisions: Part II Missouri v. Frye, Part III Lafler v. Cooper, and Part IV Burt v. Titlow.  Lastly, Part V considers the lessons of wrongful incarceration as guideposts to align accuracy with certainty in the administration of justice.

October 27, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, October 26, 2014

More drug war collateral damage: "Law Lets I.R.S. Seize Accounts on Suspicion, No Crime Required"

The title of this post includes my extra bit of spin on the headline of this notable front-page New York Times article, which gets started this way:

For almost 40 years, Carole Hinders has dished out Mexican specialties at her modest cash-only restaurant.  For just as long, she deposited the earnings at a small bank branch a block away — until last year, when two tax agents knocked on her door and informed her that they had seized her checking account, almost $33,000.

The Internal Revenue Service agents did not accuse Ms. Hinders of money laundering or cheating on her taxes — in fact, she has not been charged with any crime. Instead, the money was seized solely because she had deposited less than $10,000 at a time, which they viewed as an attempt to avoid triggering a required government report.  “How can this happen?” Ms. Hinders said in a recent interview. “Who takes your money before they prove that you’ve done anything wrong with it?”  

The federal government does.  Using a law designed to catch drug traffickers, racketeers and terrorists by tracking their cash, the government has gone after run-of-the-mill business owners and wage earners without so much as an allegation that they have committed serious crimes.  The government can take the money without ever filing a criminal complaint, and the owners are left to prove they are innocent. Many give up.

“They’re going after people who are really not criminals,” said David Smith, a former federal prosecutor who is now a forfeiture expert and lawyer in Virginia.  “They’re middle-class citizens who have never had any trouble with the law.”

On Thursday, in response to questions from The New York Times, the I.R.S. announced that it would curtail the practice, focusing instead on cases where the money is believed to have been acquired illegally or seizure is deemed justified by “exceptional circumstances.”

Richard Weber, the chief of Criminal Investigation at the I.R.S., said in a written statement,  “This policy update will ensure that C.I. continues to focus our limited investigative resources on identifying and investigating violations within our jurisdiction that closely align with C.I.’s mission and key priorities.”  He added that making deposits under $10,000 to evade reporting requirements, called structuring, is still a crime whether the money is from legal or illegal sources.  The new policy will not apply to past seizures.

October 26, 2014 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing | Permalink | Comments (19) | TrackBack

Media coalition sues Arizona on First Amendment grounds seeking more info on executions

As detailed in this article from The Guardian, the "secrecy imposed by Arizona on the source and quality of the lethal injection drugs it uses to kill death row inmates has been challenged in a new lawsuit brought by the Guardian and other media organizations." Here is more about the lawsuit (including a link to the filing):

The secrecy imposed by Arizona on the source and quality of the lethal injection drugs it uses to kill death row inmates has been challenged in a new lawsuit brought by the Guardian and other media organizations.

In the lawsuit, filed with a federal court in Phoenix, the Guardian together with the Associated Press and four of Arizona’s largest news outlets argue that the state’s refusal to disclose any information about its lethal injection drugs is a breach of the public’s first amendment right to know about how the death penalty is being carried out in its name. It follows agroundbreaking first amendment case brought by the Guardian and others in Missouri in May....

Use of midazolam in executions in recent months has proved particularly problematic and contentious. It has been associated with gruesome and prolonged deaths in Florida, Ohio and Oklahoma. The Arizona complaint has been joined, in addition to the Guardian and the Associated Press, by two of the state’s most important newspapers, the Arizona Republic and the Arizona Daily Star. Two major television channels, KPNX-TV Channel 12 and KPHO Broadcasting Corporation, are also party to the suit.

The action is lodged in the US district court in Arizona and is directed against Charles Ryan, director of the department of corrections, and the state’s attorney general, Thomas Horne, both in their official roles. The Guardian and fellow plaintiffs are represented by the Media Freedom and Information Access Clinic at Yale law school, with the assistance of Ballard Spahr LLP in Phoenix.

Unlike most other lawsuits that have been brought relating to the creeping secrecy that surrounds lethal injection drugs – which have argued the prisoners’ constitutional rights have been violated – the Arizona lawsuit starts with the principle that the public has a right to know how capital punishment is being carried out.

The complaint argues that “the public cannot meaningfully debate the propriety of lethal injection executions if it is denied access to this essential information about how individuals are being put to death by the state.” It says that the established constitutional right of public access to aspects of government procedures means that the state should be obliged to reveal “the source, composition, and quality of drugs, as well as the protocols, that have been or will be used in lethal injection executions and to view the entirety of an execution”.

This is the fourth lawsuit that the Guardian has launched against various manifestations of secrecy in the US death penalty. As well as the actions in Arizona and Missouri, there are ongoing legal complaints currently before the courts in Pennsylvania and in Oklahoma, where the state is being challenged for having drawn the curtain halfway through the botched execution of Clayton Lockett in April.

October 26, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Saturday, October 25, 2014

"Jury Says Castrated Sex Offender Should Be Freed"

The title of this post is the headline of this notable AP story out of California.  Here are the intriguing details:

A Southern California jury on Friday found that a castrated sex offender who preyed on young girls should no longer be considered a sexually violent predator and is eligible for release. Jurors in Orange County determined that Kevin Reilly, 53, does not need to remain locked up at a state mental hospital. He could be released as early as Friday, his lawyer said, but online jail records show he remained in custody as of mid-afternoon.

"There was simply no evidence he was likely to reoffend," said Holly Galloway, deputy public defender. "What the jury did was amazing because they followed the law and that's a hard thing to do with someone with his history, but it's the right thing to do."

Reilly served time in prison for sex offenses committed in the 1980s and 1990s and has been locked up in a state mental hospital since 2000 under a California law that enables authorities to forcibly commit sex offenders they believe will reoffend. He paid to be surgically castrated in 2003 to help control his pedophilia and completed a treatment program for sex offenders in 2010. State-appointed evaluators found he was not likely to reoffend, Galloway said, adding that Reilly also completed a bachelor's degree and master's degree.

Prosecutors argued that Reilly is still dangerous and that the effects of his castration, which aimed eliminate his sex drive, can be mitigated through testosterone injections. Michael Carroll, deputy district attorney, said Reilly did not confess to molesting one of his victims until three years ago and there were conflicting reports about what he told his evaluators and the court.

"I don't think he was honest during his treatment," Carroll said. "I think he continued to lie and attempted to manipulate because his ultimate purpose, I think, is to get out of the hospital, not necessarily to prevent creating any future victims." Reilly served time for committing lewd acts on four young girls over more than a decade, and later conceded he had abused at least three others, Carroll said. Most of the girls were between 4 and 8 years old.

He is required to register as a sex offender once he is released, and is planning to move to Utah, where he will participate in an outpatient treatment program for sex offenders and look for an accounting job, Carroll said.

Stories like this one provide support for my general view that juries, serving often as the conscience of a community, can and should be more often trusted to make difficult sentencing-type determinations and should not be relegated only to serving as a limited (and infrequently used) fact-finder in the operation of modern criminal justice systems.

October 25, 2014 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Due to Alleyne, Kansas Supreme Court requires resentencing of murderer of abortion provider

As reported in this local article, headlined "Kansas Supreme Court vacates Roeder's 'Hard 50' sentence," the top court in the Sunflower State reversed a state mandatory minimum sentence in a high-profile murder case.  Here are the details:

The Kansas Supreme Court on Friday upheld the premeditated first-degree murder conviction of Scott Roeder, convicted in the 2009 church killing of Wichita abortion provider Dr. George Tiller, but vacated his “Hard 50” life sentence.

In ordering Roeder’s sentence remanded to the Sedgwick County District Court, the Kansas high court noted the 2013 U.S. Supreme Court decision that deemed a sentence of 50 years without the possibility of parole must be levied by a jury as opposed to the trial judge.

The Kansas court has vacated and remanded at least five other Hard 50 sentences in light of the U.S. Supreme Court decision in Alleyene vs. United States....

The court rejected all of Roeder’s other arguments in his bid for a new trial. Among those arguments was that Sedgwick County District Court Judge Warren Wilbert declined to allow Roeder to present a voluntary manslaughter defense based on the “imperfect defense of others” concept.  Roeder never denied at trial that he intended to shoot and kill Tiller in the vestibule of the doctor’s Wichita church before services on Sunday, May 31, 2009, but said he did so to prevent the abortion provider from taking the lives of unborn children.

Roeder, who testified that his anti-abortion activities began after his 1992 conversion to Christianity, said his frustration grew after Tiller was acquitted in 2009 of 19 charges brought by former Kansas Attorney General Phill Kline alleging that Tiller broke state law in performing late-term abortions. Roeder testified that upon learning of Tiller's acquittal, he believed that “nothing was being done” and the legal process had been exhausted....

But the district court ruled that Roeder wasn’t entitled to use a necessity defense, based in part on a previous Kansas Supreme Court ruling — also involving an anti-abortion case — that a person isn’t entitled to a such a defense if the activity they were trying to stop was a legal activity....

“Even for Roeder's professed purpose of stopping all abortions, not just illegal abortions, the Draconian measure of murder was not the only alternative,” Justice Lee Johnson wrote in the unanimous decision. The district court also ruled, and the Supreme Court agreed, that Roeder wasn’t entitled to a voluntary manslaughter defense because no imminent threat existed on that Sunday morning to justify the use of lethal force....

The Kansas Legislature, responding to the U.S. Supreme Court decision in Alleyene, rewrote the Kansas law on Hard 50 sentencing during a special session in 2013.  The new law says a jury must determine whether special circumstances exist to impose the increased minimum sentence.  But how such new sentencing will be conducted has yet to be determined, as none has yet been conducted in the cases where a Hard 50 sentence has been vacated.  Sedgwick County District Attorney Mark Bennett said Friday after the Roeder decision that he intended to conduct such a hearing.

The full 50+ page opinion of the Kansas Supreme Court in Kansas v. Roeder, No. 104,520 (Kansas Oct. 24, 2014), is available at this link.

October 25, 2014 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, October 24, 2014

ACLU flies suit against Florida county's latest sex offender residency restrictions

As reported in this local article, headlined "ACLU sues over rule on where sex offenders can live in Miami-Dade," a notable new lawsuit has been brought against a community that has a long sad history of difficulties with sex offender residency realities.  Here are the details:

For five years, Miami-Dade County’s sex offender law has sparked national headlines, as homeless parolees have been forced to move from street corners to parking lots because of a law that prohibits them from squatting near public spaces where children gather. Now, the dozens of homeless sex offenders — shuffled from under the Julia Tuttle Causeway to a Shorecrest street corner and finally to a parking lot near train tracks and warehouses just outside Hialeah — have a voice arguing on their behalf.

On Thursday, the national chapter of the American Civil Liberties Union filed a lawsuit in federal court reasoning that Miami-Dade County and the state Department of Corrections have violated the offenders’ basic rights to personal safety, and to maintain a home. The suit doesn’t name the ACLU’s clients, referring to them as John Doe 1, 2 and 3.

“It undermines public safety. It’s harder to find a job and maintain treatment. Housing stability is just as critical to these folks as to anyone else,” said Brandon Buskey, staff attorney for the Criminal Law Reform Project at the ACLU in New York City.

But the man behind the controversial county ordinance said no one has the right to demand where they live. Ron Book, the powerhouse state lobbyist and chair of the Miami-Dade Homeless Trust, said the courts have upheld the residency restrictions, and the ACLU is simply regurgitating an issue that’s been dealt with. “The U.S. Supreme Court has said they’re entitled to live places that don’t endanger the health, safety and welfare of law-abiding citizens of the U.S. But they’re entitled to take their $350 to the courthouse,” Book said of the ACLU. “I don’t support those with sexual deviant behavior living in close proximity to where kids are.”

The 22-page lawsuit, filed in the U.S. Court’s Southern District, calls the county ordinance vague, says it doesn’t allow sex offenders their due process, and adds that it leaves them in a vulnerable position and unsafe. “These individuals, who frequently subsist on meager incomes after being released from prison, are unable to locate stable, affordable housing in Miami-Dade County. This transience is primarily because the ordinance arbitrarily renders off-limits broad swaths of housing,” according to the complaint....

At the center of the battle between the ACLU and Miami-Dade is a law approved in 2010 called the Lauren Book Safety Ordinance. Lauren Book, Ron Book’s daughter, was sexually molested by a trusted nanny for six years, starting when she was 11. Lauren Book-Lim, now married and 29, is an advocate for the sexually abused. The 2010 ordinance was created after nearly 100 offenders were sent scrambling from squalid living conditions under the Julia Tuttle Causeway. The new law doesn’t allow offenders on parole within 2,500 feet of schools, parks, bus stops, or any other place children might congregate. Before the law, Miami-Dade followed a less restrictive state-created 1,000-foot law.

But the county ordinance had unintended consequences: It left sex offenders with few living options and almost immediately became a hot-button issue around the nation, even the world. There’s even a Wikipedia page about it.

Miami-Dade’s sexual offender homelessness issue first came to light in late 2009, when images of 92 homeless sex offenders living in plywood and cardboard sleeping quarters tucked under the Julia Tuttle Causeway at the height of the recession were splashed across TV. At the time, the county was still following the 1,000-foot state law.

Though the homeless offenders had been living there for about three years, embarrassed officials put up “No Trespassing” signs under one of the main causeways linking Miami and Miami Beach, and tore down the rickety structures. A promise to spend $1 million to find housing for the offenders didn’t solve the problem. The new, tougher, 2,500-foot ordinance was created mainly because of the Julia Tuttle fiasco....

Howard Simon, executive director of the Florida chapter of the ACLU said no entity should be allowed to strip anyone of their basic rights and force them into “dangerous and squalid conditions.”

“This is the second chapter of the same sad story,” he said. “The county provoked international outrage when it forced people to live under the Julia Tuttle bridge. Now it’s forcing people to live alongside railroad tracks.”

More details about the lawsuit and links to the filings are available at this ACLU page.

October 24, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

Split Minnesota Supreme Court rules lenient sentence in rape case was abuse of discretion

As reported in this local article, headlined "Minnesota Supreme Court criticizes probation sentence in rape case," the top appellate court in Minnesota recently took the unusual step of overruled a trial judge's sentencing decision as an abuse of discretion. Here are the details:

In a rare and harshly worded ruling, the Minnesota Supreme Court said Wednesday that a lower court judge erred in sentencing a particularly violent rapist to probation rather than the recommended 12 years in prison.

Justice David Lillehaug opened his 21-page opinion by saying that district courts have a great deal of discretion in sentencing. And the state high court rarely holds that it has been abused, he said. “But rarely is not never,” he continued. “This is such a rare case.”

The state Supreme Court vacated the sentence of 30 years’ supervised probation given to Jose Arriaga Soto Jr. Polk County District Judge Jeffrey Remick now must conduct additional fact-finding on whether the recommended 12-year sentence should be imposed or if a departure from the guidelines is justified.

Soto was 37 when he beat and raped a woman for two hours after drinking all night in an East Grand Forks apartment in 2012. Soto pleaded guilty to first-degree criminal sexual conduct. A co-defendant who was involved in the rape to a lesser degree than Soto received 12 years in prison, the opinion noted in its many criticisms of the ruling.

A presentencing report said Soto had minimized his actions without taking responsibility and blamed the victim. At his sentencing, he apologized to her. The opinion notes, in a tempered outrage, the horrors of the assault for the victim: “Soto committed a forcible and violent assault against an intoxicated and thus particularly vulnerable person. The assault lasted approximately 2 hours and the victim was repeatedly subjected to multiple penetrations by two men. Soto slapped the victim’s face, choked her, and caused several injuries.”

The opinion noted the Legislature and the Sentencing Guidelines Commission have determined a sentence of 12 years in prison is “presumed to be appropriate” for someone with Soto’s criminal history who commits such a rape. The victim’s vulnerability, the multiple forms of penetration and other particular cruelty that may be involved suggests that an upward departure on the case could have been appropriate, the opinion says. The opinion also noted that Soto’s co-defendant, Ismael Hernandez, was “arguably less culpable than Soto — he left the room shortly after the sexual assault began,” but he went to prison for the presumptive sentence of 12 years....

Three of the seven justices dissented from Lillehaug’s opinion. Alan Page wrote that the district court relied on factors generally recognized by the higher court as potentially relevant considerations in determining whether probation was appropriate for Soto. “While another [district] court or the members of our court might have arrived at a different conclusion, that alone does not make this situation the ‘rare case’ warranting our intervention,” wrote Page, who was joined in his dissent by Chief Justice Lorie Gildea and G. Barry Anderson....

Even though probation wasn’t recommended in Soto’s pre-sentence report by a probation officer or an evaluator from a sex offender treatment program, Remick placed him on supervised probation for 30 years. The judge emphasized Soto’s age, lack of serious criminal record and family support. He also said the crime was primarily caused by alcohol and that Soto’s attitude in court was largely respectful and that “this particular type of event seems largely out of character.”

Lillehaug’s opinion challenged all the factors Remick listed for Soto’s amenability to probation, finding that he drew false or inappropriate conclusions in considering them. He said the judge should have argued that Soto was “particularly” amendable, the legal standard used to justify the departure of staying a presumptive sentence.

The full majority and dissenting opinion in Minnesota v. Soto, No. A13-0997 (Minn. Oct. 22, 2014), can be accessed at this link.

October 24, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, October 22, 2014

"The Death Penalty’s 'Finely Tuned Depravity Calibrators': Fairness Follies of Fairness Phonies Fixated on Criminals Instead of Crimes"

The title of this post is the title of this new article by Lester Jackson available via bepress SelectedWorks.  Here is the abstract:

It has been loudly and repeatedly proclaimed by opponents that capital punishment is “unfair.”  In their view, it is unfair because (1) only some murderers receive the ultimate sentence and (2) they are not the most deserving.  Underlying this view is the remarkable assumption that fairness is subject to “fine tuning” and “moral accuracy.”

It is argued here that this assumption is indefensible both in theory and in practice.  As a theoretical matter, it is insupportable to suggest that matters of conscience, right and wrong, are subject to calibration or “accuracy.”  Right and wrong are not determined in the same manner as taking blood tests.  Moreover, and this lies at the heart of the fallacy, there simply is no agreement upon what is fair punishment for unlawful intentional killing. Regarding the death penalty, the values chasm is unbridgeable.

In practice, this is clearly demonstrated by the considerations employed by those who allege unfairness.  Using chicanery, outright falsehood and abuse of power, they have a laser focus on convicted criminals with no concern for past -- and future -- victims.  It is easy to worry about criminals when the suffering of victims is left out of so-called fairness calibrations.  When the assessment of fairness is confined to comparing the fate of one criminal against another, the reductio ad absurdum is that there should be no punishment for any violent crime.

This is the inevitable result of what is nowhere found in the actual written Constitution but, nevertheless, has been ordered by anti-capital punishment United States Supreme Court justices: “individualized sentencing.”  That mandate, which places a heavy focus upon a criminal’s background and record, should be reconsidered.

Penal codes make certain conduct criminal.  It is conduct that should be the prime (and perhaps exclusive) consideration.  In determining punishments, the focus should be on crimes and not on the criminals who commit them.  Based on such determinations, another view of fairness is presented.

October 22, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (7) | TrackBack

Tuesday, October 21, 2014

"Skewed Justice: Citizens United, Television Advertising and State Supreme Court Justices’ Decisions in Criminal Cases"

The title of this post is the title of this intriguing new empirical study authored by Joanna Shepherd and Michael Kang.  Here is the study's summary:

The explosion in spending on television attack advertisements in state supreme court elections accelerated by the Citizens United decision has made courts less likely to rule in favor of defendants in criminal appeals.  State supreme court justices, already the targets of sensationalist ads labeling them “soft on crime,” are under increasing pressure to allow electoral politics to influence their decisions, even when fundamental rights are at stake.

Citizens United (which removed regulatory barriers to corporate electioneering) has fundamentally changed the politics of state judicial elections.  Outside interest groups, often with high-stakes economic interests or political causes before the courts, now routinely pour millions of dollars into state supreme court elections.  These powerful interests understand the important role that state supreme courts play in American government, and seek to elect justices who will rule as they prefer on priority issues such as environmental and consumer protections, marriage equality, reproductive choice and voting rights.  Although their economic and political priorities are not necessarily criminal justice policy, these sophisticated groups understand that “soft on crime” attack ads are often the best means of removing from office justices they oppose.

This study’s two principal findings:

  • The more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to vote in favor of criminal defendants.  As the number of airings increases, the marginal effect of an increase in TV ads grows.  In a state with 10,000 ads, a doubling of airings is associated on average with an 8 percent increase in justices’ voting against a criminal defendant’s appeal.

  • Justices in states whose bans on corporate and union spending on elections were struck down by Citizens United were less likely to vote in favor of criminal defendants than they were before the decision.  Citizens United changed campaign finance most significantly in 23 of the states where there were prohibitions on corporate and union electioneering prior to the decision. In these states, the removal of those prohibitions after Citizens United is associated with, on average, a 7 percent decrease in justices’ voting in favor of criminal defendants.

The study is based on the work of a team of independent researchers from the Emory University School of Law.  With support from the American Constitution Society, the researchers collected and coded data from over 3,000 criminal appeals decided in state supreme courts in 32 states and examined published opinions from 2008 to 2013.  State supreme courts are multi-judge bodies that decide appeals collectively by majority vote; the researchers coded individual votes from over 470 justices in these cases.  These coded cases were merged with data from the Brennan Center for Justice reporting the number of TV ads aired during each judicial election from 2008 to 2013. A complete explanation of this study’s methodology is below.

The findings from this study have several important implications.  Not only do they confirm the influence of campaign spending on judicial decision making, they also show that this influence extends to a wide range of cases beyond the primary policy interests of the contributors themselves.  Even more troubling, the findings reveal that the influence of money has spread from civil cases to criminal cases, in which the fundamental rights of all Americans can be at stake.

October 21, 2014 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Koch Industries give "major grant" to NACDL to help with indigent defense

I noted in this post back in April that the Koch Brothers have a history of supporting criminal justice reform groups and efforts. That interesting story now has another interesting chapter as evidence by this new press release headlined "NACDL Selected to Receive Significant Grant from Koch Industries, Inc. to Address Nation's Profound Indigent Defense Crisis." Here is how the press release gets started:

The National Association of Criminal Defense Lawyers (NACDL), the nation's preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing, has been selected by Koch Industries, Inc. to receive a major grant in support of NACDL's efforts to address the nation's profound indigent defense crisis.

There are two components to this generous and critical initiative:

  • Significant expansion of access to training through an ambitious combination of scholarship support for indigent defenders, web-based training via the Internet, and targeted on-site training for indigent defense providers who lack adequate resources to provide comprehensive continuing education for line attorneys and supervisors.
  • Examination of state level indigent defense delivery systems in order to ascertain strengths that can be replicated elsewhere as well as weaknesses and the ways in which those can be rectified.

Both components will seek to achieve the goals set forth in the American Bar Association's Ten Principles of a Public Defense Delivery System, which are widely recognized as providing a comprehensive framework for the effective delivery of legal services for the indigent accused.

October 21, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Arizona prosecutors getting started at second (costly) run at death sentence for Jodi Arias

A high-profile (and high-cost) capital case starts its next big phase as reported in this new AP article headlined "Opening statements expected in Jodi Arias sentencing retrial." Here are the basics:

Jurors in Phoenix will once again be asked to decide whether Jodi Arias should be executed for the gruesome murder of her former boyfriend. Lawyers are expected to make opening statements Tuesday at the sentencing retrial, more than a year after a jury found her guilty of killing Travis Alexander in June 2008. The first jury deadlocked on whether to sentence her to life imprisonment or death.

A new jury that was picked over the past several weeks will be sworn in as the former waitress tries to make another case that her life should be spared.  They won't consider whether or not she's guilty -- that's already been decided.  The retrial is expected to last into December....

Arias stabbed and slashed Alexander nearly 30 times, slit his throat so deeply she nearly decapitated him and shot him in the forehead.  She left his body in his shower where friends found him about five days later at his suburban Phoenix home.  She acknowledged she killed Alexander, but claimed it was self-defense after he attacked her.  Prosecutors said it was premeditated murder carried out in a jealous rage after the victim wanted to end their affair and planned a trip to Mexico with another woman.

Weeks after Arias was convicted, the jury failed to reach a unanimous decision on her punishment.  Her attorneys have since sought, unsuccessfully, to dismiss the death penalty as an option.  If another deadlock occurs, the death penalty would automatically be removed as an option, leaving a judge to sentence Arias to one of two options: life in prison or life in prison with the possibility of release after 25 years.

The sentencing retrial will be a mini-trial of sorts to get a fresh jury up to speed on the case.  Four hundred people were called as prospective jurors.  Many of them were cut after they said they either made up their minds about the case or knew too much to be impartial.  Some jurors cited their objection to the death penalty.

At her last trial, she testified for 18 days, describing for jurors an abusive childhood, cheating boyfriends, dead-end jobs, a shocking sexual relationship with Alexander, and her contention that he was physically abusive....

The costs of defending Arias have topped $2.5 million and will mount during a second penalty phase. Prosecutors have declined to provide their costs to try the case.

I am pleased this AP article ends with a discussion of the economic costs of this notable case. Because it is unlikely Arias will ever be executed even if she is sentenced to death, and because imposition of a death sentence will ensure years of state and federal appeals at taxpayer expense, I think prosecutors in this case are likely to do more harm to Arizona taxpayers than to Jodi Arias via this retrial. 

Some prior posts on the Arias case:

October 21, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Bladerunner Oscar Pistorius sentenced to five years in prison for killing girlfriend

Download (1)As reported in this lengthy CNN piece, "Oscar Pistorius' fall from grace culminated Tuesday with a five-year sentence in the shooting death of his girlfriend." Here is more:

The sentence was imposed for the charge of culpable homicide, which in South Africa means a person was killed unintentionally, but unlawfully.  Under South African law, he will have to serve at least one-sixth of his sentence -- 10 months -- before he can ask to be placed under correctional supervision, usually house arrest, instead....

During his trial, the double-amputee sprinter often sobbed at the mention of his girlfriend Reeva Steenkamp's name.  He insisted that he mistook her for an intruder when he shot her through a toilet door on Valentine's Day 2013.  But there was very little visible reaction from Pistorius as the sentence was read out in the Pretoria court.

Speaking to CNN's Robyn Curnow in the last few weeks before his sentencing, Pistorius told her that he would respect and accept the decision of the court and that he was not afraid of imprisonment.  He said he hoped to contribute while in prison by teaching people how to read or start a gym or running club. "Oscar will embrace this opportunity to pay back to society," his uncle, Arnold Pistorius, told reporters.  "As an uncle, I hope Oscar will start his own healing process as he walks down the path of restoration.  As a family, we are ready to support and guide Oscar as he serves his sentence."

The Steenkamp family's lawyer, Dup De Bruyn, said in a statement: "The family is satisfied. They are glad that it is over and are satisfied that justice has been done."

The prosecution had asked for a minimum prison sentence of 10 years for Pistorius.  After the ruling Tuesday, South Africa's National Prosecuting Authority said it had not yet decided whether to appeal Judge Thokozile Masipa's verdict that he is not guilty of murder. Pistorius' defense had called for a sentence of house arrest and community service. There was no immediate reaction from the defense team on the sentencing.  Both sides now have a 14-day period in which they can choose to lodge any appeal, according to CNN legal analyst Kelly Phelps....

Giving her reasoning Tuesday, Masipa emphasized that the decision on sentencing would be "mine and mine alone." She pointed out that sentencing is not an exact science but relies on an assessment of elements, including the nature and seriousness of the crime, the personal circumstances of the accused and the interests of society.

She said she would also take into account the factors in sentencing of retribution, deterrence and rehabilitation. In any case, she said, "sentencing is about achieving the right balance."

In her final remarks, Masipa dismissed evidence given by probation officer Annette Vergeer that prison would not be able to accommodate Pistorius' disability, saying her testimony was based on outdated information and sketchy. She said Pistorius would not present the prison system with an "insurmountable challenge."

The judge added that she felt that Pistorius' vulnerability had been overemphasized in the evidence given and that his excellent coping strategies -- shown in his ability to compete with able-bodied athletes -- had been overlooked. He would be able to continue treatment for physical problems and mental health issues while in prison, she said.

In terms of the seriousness of the offense, Masipa said Pistorius had shown gross negligence in shooting into a small toilet cubicle, knowing there was someone inside who could not escape. He also knew how to handle firearms, she said, adding that these were "very aggravating" factors.

On the other hand, mitigating factors include that Pistorius is a first offender and remorseful, Masipa said. She also mentioned his contribution to society in giving his time and money to charities and inspiring others with disabilities to believe they could succeed.

Perhaps seeking to preempt criticism from those who'd like to see either a tougher or more lenient sentence, Masipa pointed out that the purpose of the court is to serve the public interest, not make itself popular. She also indicated that her sentence wasn't affected by Pistorius' fame. "It would be a sad day for this country if the impression was to be created that there was one law for the poor and disadvantaged and another for the rich and famous," she said.

The judge also highlighted the loss suffered by Steenkamp's family, which has had a negative effect on her father's health. Steenkamp was young, vivacious and full of life at the time of her death, she said. "The loss of life cannot be reversed. Nothing I say or do today can reverse what happened," she said.

Previous related post:

October 21, 2014 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, October 20, 2014

New top Justice in Massachusetts urges repeal of mandatory minimums for low-level drug offenders

Download (2)I just came across this notable Boston Globe article discussing this notable speech delivered late last week by the new Chief Justice of Massachusetts Supreme Judicial Court.  Here is how the Globe article starts:

The head of the state’s highest court called for an end to mandatory minimum sentences for low-level drug offenders on Thursday, saying they interfere with judges’ discretion, disproportionately affect minorities, and fail to rehabilitate offenders.  

Citing the opioid-addiction crisis, Supreme Judicial Court Chief Justice Ralph D. Gants said the state needs to find better ways to treat addicts than sending them to jail. In 2013, 674 people died of opioid overdoses, compared with 338 in 2000.  “To those who favor the status quo in the so-called war on drugs, I ask: How well is the status quo working?” Gants said.

Gants, selected as chief justice by Governor Deval Patrick, called on the Legislature to pass laws to abolish mandatory sentencing.  His remarks, in his first State of the Judiciary speech, were part of a call for broader changes in the court system.  “We need our sentences not merely to punish and deter, but also to provide offenders with the supervision and the tools they will need to maximize the chance of success upon release and minimize the likelihood of recidivism,” he said.

Sworn in just 80 days ago, Gants said he will convene a group of judges, probation offices, prosecutors, and defense attorneys to study best practices to ensure what he called “individualized, evidence-based sentences.”  That means considering mental health or substance abuse treatment as well as time in prison.  Mandatory minimum sentences are automatic prison terms for those convicted of certain crimes, limiting judges’ discretion.

Gants’s proposal drew quick praise from members of the Massachusetts Bar Association, his audience at the association’s annual Bench-Bar Symposium in the John Adams Courthouse.  Marsha V. Kazarosian, president of the bar association, called Gants’s call to action “a gutsy move.”  She said there are “no cookie-cutter remedies” for drug defendants, and that an offender’s background should taken into consideration, and “that’s exactly what a judge is supposed to do.”

Anthony Benedetti, chief counsel for the Committee for Public Counsel Services, the state’s public defender agency agreed. “So many people involved in the criminal justice system have substance abuse and mental health issues,” Benedetti said.  “That’s the root of the problem, and this gets back to individual, evidence-based sentencing.”

The proposal was criticized by Essex District Attorney Jonathan Blodgett, head of the Massachusetts District Attorneys Association, who argued that the laws are designed to target drug traffickers, not merely drug users.  “The midst of an opiate overdose epidemic is not the time to make it easier for drug traffickers to avoid accountability and incarceration,” Blodgett said.  “An experienced trial judge should know that the drug defendants sentenced to incarceration are the ones who carry and use firearms, who flood communities with poison, and who commit the same distribution offenses over and over again.”

Supreme Judicial Court Chief Justice Gants' full speech is worth reading, and here is a notable excerpt from the text:

Mandatory minimum sentencing in drug cases has had a disparate impact upon racial and ethnic minorities.  In fiscal year 2013, 450 defendants were given mandatory minimum sentences on governing drug offenses. In that year, which is the most recent year for which data are available, racial and ethnic minorities comprised 32% of all convicted offenders, 55% of all those convicted of non-mandatory drug distribution offenses, and 75% of all those convicted of mandatory drug offenses.  I do not suggest that there is intentional discrimination, but the numbers do not lie about the disparate impact of mandatory minimum drug sentences.

The impact of mandatory minimum drug sentences is far greater than the number of defendants who are actually given mandatory sentences.  Prosecutors often will dismiss a drug charge that carries a mandatory minimum sentence in return for a plea to a non-mandatory offense with an agreed-upon sentence recommendation, and defendants often have little choice but to accept a sentencing recommendation higher than they think appropriate because the alternative is an even higher and even less appropriate mandatory minimum sentence.  For all practical purposes, when a defendant is charged with a drug offense with a mandatory minimum sentence, it is usually the prosecutor, not the judge, who sets the sentence.

I have great respect for the prosecutors in this Commonwealth, and for the exercise of prosecutorial discretion that comes with the job; I was a prosecutor myself for eight years.  But where there is a mandatory minimum sentence, a prosecutor's discretion to charge a defendant with a crime effectively includes the discretion to sentence a defendant for that crime.  And where drug sentences are effectively being set by prosecutors through mandatory minimum sentences, we cannot be confident that those sentences will be individualized, evidence-based sentences that will not only punish and deter, but also minimize the risk of recidivism by treating the root of the problem behind many drug offenses -- the problem of addiction.

October 20, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

SCOTUS order list gets week off to exciting start for criminal justice fans

As reported here and here at SCOTUSblog and here at How Appealing and here at Crime & Consequences, the Supreme Court this morning issued this order list which included one notable GVR and three grants of certiorari.  All of this SCOTUS action has a direct or indirect connection to criminal justice issues; these excerpts from Lyle Denniston's SCOTUSblog reporting highlights the basics of the cert grant: 

The Supreme Court, taking on an issue that reaches hotels and motels across the nation, agreed on Monday to rule on the power of city governments to require commercial lodgings to open their guest lists to the police. In agreeing to hear a Los Angeles case, the Justices also said they would rule on whether a lawsuit can be filed to use the Fourth Amendment to strike down a police inspection law in its entirety, whatever the factual situation in a given case.

The case of Los Angeles v. Patel was one of three new cases the Justices accepted for review.... Other issues in the newly granted cases focus on whether federal courts have power to order that guns taken from an individual during a drug prosecution should be transferred when the case is over to a neighbor and a friend to whom the owner wanted to sell them (Henderson v. United States), and whether it is unconstitutional for a state court to exclude an accused individual and defense lawyers from a hearing to examine the legality of prosecutors’ exclusion of minority jurors from serving (Chappell v. Ayala).

In addition, the notable GVR involved the application of the Burrage causation issue resolved last SOCTUS Term in a criminal prosecution involving a doctor convicted of four counts of unlawful distribution of a controlled substance leading to death.  Justice Alito, joined by Justice Thomas, concurred in a written opinion to make clear that "nothing in today’s order should be understood as suggesting that petitioner is entitled to acquittal."

October 20, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

"Why Did the Supreme Court Sidestep Sentencing Dispute?"

The title of this post is not merely the question I had for a few Justices after the denial of cert last week in Jones v. US (lamented here and here), it is also the headline of this new National Law Journal article about this decision authored by Tony Mauro.  Here are excerpts:

The U.S. Supreme Court's ­refusal to add a Washington drug case to its docket would not ordinarily get much notice.  But when the court did just that on Oct. 14, it drew wide criticism for missing an opportunity to resolve a long-­running dispute over judicial discretion in ­sentencing.

The court denied certiorari in Jones v. United States, which asked the court to rule that in deciding on a sentence, federal judges should not be able to take into consideration conduct for which the defendant was acquitted.  In the Jones case, the trial judge significantly increased the sentences of three defendants by factoring in drug conspiracy charges that the jury had rejected.

"It is really hard to understand why the court ruled as it did," said University of Illinois College of Law professor Margareth Etienne, a sentencing expert. "It goes against everything the Supreme Court has said for the last 15 years."

Cato Institute senior fellow Ilya Shapiro said, "It's not just high-­profile culture-war issues like same-sex ­marriage and the right to bear arms that the Supreme Court is avoiding like the plague."  Shapiro said the court's action was "another opportunity lost by the Court, another responsibility shirked.  "The issue has been raised in numerous lower court decisions, and in a 2007 Supreme Court case, several justices said it should be taken up if the right case came along.  As recently as Oct. 1, the U.S. Court of Appeals for the First Circuit mentioned the Jones case in a ruling that criticized the "questionable ­practice" of basing sentences on uncharged or unproven offenses.

An unusual lineup of three justices — Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg — took the rare step of dissenting from the denial of review.  "This has gone on long enough," Scalia wrote. "The present petition presents the non-hypothetical case the court claimed to have been waiting for."

In the case the court denied, a District of Columbia jury found Antwuan Ball, Desmond Thurston and Joseph Jones guilty in 2007 of selling between two and 11 grams of cocaine, relatively small amounts. They were acquitted on racketeering and other charges that they were part of an extensive narcotics conspiracy. Yet, when U.S. District Judge Richard Roberts sentenced the three, he said he "saw clear evidence of a drug conspiracy," and sentenced Ball, Thurston and Jones to 18, 16 and 15 years in prison, respectively — four times higher than the highest sentences given for others who sold similar amounts of cocaine, according to filings with the Supreme Court....

Stephen Leckar, of counsel to Kalbian Hagerty in Washington, who represented the defendants in the petition denied last week, said he was disappointed that the petition fell "one vote short" of being granted certiorari. The fact that conservatives Scalia and Thomas dissented — along with liberal Ginsburg — "ought to be a fire bell in the night" signaling that the issue should be resolved, Leckar said....

The University of Illinois' Etienne speculated that some justices may have felt the facts of the Jones case were "too good" to be a vehicle for making a broad pronouncement on the issue. She explained that Jones involved a judge ignoring an actual acquittal by a jury, whereas a more common scenario is a judge basing an enhanced sentence on conduct that may or may not have been charged or was not part of a plea agreement. Ruling on a case involving an actual acquittal might leave the broader issue unresolved. "It is going to take a while" for the court to revisit the issue, Etienne added. "Until it does, the old adage that one is 'innocent until proven guilty' will continue to have little meaning."

Previous related posts on the Jones case:

October 20, 2014 in Blakely in the Supreme Court, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Sunday, October 19, 2014

"Good Conduct Time for Prisoners: Why (and How) Wisconsin Should Provide Credits Toward Early Release"

The title of this post is the title of this notable new paper by Michael M. O'Hear.  Here is the abstract:

Wisconsin is one of about twenty states not offering good conduct time (GCT) to prisoners. In most states, prisoners are able to earn GCT credits toward accelerated release through good behavior.  Wisconsin itself had GCT for more than a century, but eliminated it as part of a set of reforms in the 1980s and 1990s that left the state with what may be the nation’s most inflexible system for the release of prisoners.  Although some of these reforms helpfully brought greater certainty to punishment, they went too far in eliminating nearly all meaningful recognition and encouragement of good behavior and rehabilitative progress.

This article explains why and how Wisconsin should reinstitute GCT, drawing on social scientific research on the effects of GCT, public opinion surveys in Wisconsin and across the United States regarding sentencing policy, and an analysis of the GCT laws in place in other jurisdictions.  Although the article focuses particularly on Wisconsin’s circumstances, the basic argument for GCT is more generally applicable, and much of the analysis should be of interest to policymakers in other states, too.

October 19, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Friday, October 17, 2014

ProPublica urges next AG to "Fix Presidential Pardons"

The title of this post is drawn from the headline of this strong new piece from the Editor-in-Chief of ProPublica. The full headline and subheadline provides the basics: "For the Next Attorney General, a Modest Suggestion: Fix Presidential Pardons; More than two years ago, a ProPublica series showed that white applicants were far more likely to receive clemency than comparable applicants who were black. Since then, the government has spent hundreds of thousands of dollars on a study, but the pardons system remains unchanged." And here are a few excerpts from a piece that is styled as an open letter to the next Attorney General:

Dear Possible Attorney General Nominees (You Know Who You Are),...

More than two years ago, ProPublica reporters Dafna Linzer and Jennifer LaFleur revealed that white applicants were nearly four times as likely to receive a presidential pardon as were comparable African Americans. The story appeared on the front page of The Washington Post, our publishing partner. I know, I know, this seems improbable but LaFleur spent many months doing a statistical analysis that eliminated every other factor we could imagine that might explain this disparity. We sent our findings and methodology to several leading experts in the field. All agreed that race was the only factor driving the vast difference. We published our methodology and you can read it here. Linzer's reporting on the pardons process suggested that it was far more subjective than you might have thought. We wrote about how race creeps into decision-making even when no one is overtly biased. It's worth a look.

Given the starkness of these findings, we at ProPublica thought, naively, that your predecessor and his boss would move immediately to address this problem. As I'm sure you're aware, a president's authority to grant pardons is one of the only unchecked powers in our constitutional system of checks and balances. When it comes to pardons, President Obama can do whatever he wants.

We were told by several political insiders that the pardon stories did not prompt reform because of their timing. They appeared in late 2011, just as the president was gearing up for what was expected to be a bruising campaign for a second term. It was not considered the politically ideal moment for the nation's first African-American president to make the justice system fairer for people of color. And so the government did what it so often does in such circumstances: It commissioned a study to see if our findings were correct....

If history is any guide, you'll be getting a tsunami of pardon requests in the last months of the administration. It might be nice to have come up with some serious reforms by then to fix a process that is so demonstrably flawed. There are lots of ideas about what could done, from setting up an independent pardons commission to taking the pardons office out of the Justice Department.

Good luck with the confirmation hearings. And remember, two years can fly by a lot quicker than you'd ever imagine....

Best Regards,

Stephen Engelberg/Editor in Chief, ProPublica

October 17, 2014 in Clemency and Pardons, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, October 16, 2014

"Risk and Needs Assessment: Constitutional and Ethical Challenges"

The title of this post is the title of this timely and notable new paper by Melissa Hamilton recently posted on SSRN. Here is the abstract:

Across jurisdictions, the criminal justice system is enamored with the evidence-based practices movement.  The idea is to utilize the best scientific data to identify and classify individuals based on their potential future risk of reoffending, and then to manage offender populations according to risk and criminogenic needs.  Risk-needs tools now inform a variety of criminal justice decisions, ranging from pre-trial outcomes, to sentencing, to post-conviction supervision. While evidence-based methodologies are widely exalted as representing best practices, constitutional and moral objections have been raised.

Risk-needs tools incorporate a host of constitutionally and morally sensitive factors, such as demographic and other immutable characteristics.  The constitutional analysis herein engages equal protection, prisoners’ rights, due process, and sentencing law.  In addition, the text examines the philosophical polemic aimed uniquely at sentencing as to whether risk should play any role at all in determining punishment.

The Article then appraises potential alternatives for risk-needs methodologies if the concerns so raised by critics prove legitimate.  Any option comes with significant consequences.  Retaining offensive variables incites political and ethical reproaches, while simply excising them weakens statistical validity of the underlying models and diminishes the promise of evidence-based practices.  Promoting an emphasis on risk at sentencing dilutes the focus of punishment on blameworthiness, while neglecting risk and needs sabotages a core objective of the new penological model of harnessing the ability to identify and divert low risk offenders to appropriate community-based alternatives.

October 16, 2014 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (5) | TrackBack