Sentencing Law and Policy

Nebraska legislature sends "Miller fix" bill to governor

As reported in this local article, headlined "Lawmakers pass new sentencing limits for juveniles," a bill responsive to new Eighth Amendment doctrine which modifies the sentencing options for young killers has been passed by Nebraska's legislature.  Here are the details:

With the bill (LB44), juveniles could be sentenced to a minimum 40 years to life, with eligibility for parole after 20 years. Judges could continue to use discretion on life sentences for young people who commit first-degree murder.  And they could sentence a youth to more than the minimum.

The bill grew out of the state's need to act on a June U.S. Supreme Court ruling that indicated states must provide some meaningful opportunity for release based upon demonstrated maturity and rehabilitation.  The courts would have to consider mitigating factors in sentencing, such as age, maturity and home environment, including previous abuse of the juvenile.

LB44 passed final reading Thursday on a 38-1 vote.  Lincoln Sen. Danielle Conrad was the lone vote against it. "I just felt like the mandatory minimums were too extensive, particularly when we are talking about juveniles," she said.

But there are good aspects of the bill, Conrad said.  "And I appreciate the hard work and compromise that the committee and the sponsors and other members diligently worked on."...

The bill doesn't address retroactive action for those inmates who committed their crimes as juveniles and are serving life sentences.  Judiciary Committee Chairman Brad Ashford has said the courts would have to address that.  If signed by the governor, those men and women serving mandatory life sentences could file requests to have their sentences reviewed.

I have plans this summer to write an article explaining why I think, both as a matter of law and as a matter of policy, all significant changes to sentencing rules and procedures ought to be presumptively retroactive rather than presumptively non-retroactive (subject to constitutional limits/problems). Consequently, I think court should presume retroactivity in a setting like this one when it appears a legislature has opted not to address whether a new sentencing statute should be retroactive and has punted the issue to the courts to fill in this legislative gap.

"Gideon's Shadow"

The title of this post is the title of this notable new piece by Justin Marceau, which is available via SSRN. Here is the abstract:

The right to counsel is regarded as a right without peer, even in a field of litigation saturated with constitutional protections. But from this elevated, elite-right status, the right to counsel casts a shadow over the other, less prominent criminal procedure rights. Elaborating on this paradoxical aspect of the Gideon right -- that the very prominence of the right tends to dilute other rights, or at least justify limitations on non-Gideon rights -- this essay analyzes the judicial and scholarly practice of employing the counsel right as a cudgel to curb other rights.

This piece now joins my list of must-read pieces providing a provocative perspective during a period that has included lots of Gideon celebrations now that the decision is 50 years old. Here are links to posts noting other articles and commentary in this milieu:

• "Race and the Disappointing Right to Counsel"
• "Gideon Skepticism"
• "The Right to Counsel: Badly Battered at 50" (at a great moment for hope and change)
• Did Gideon enable the war on drugs, the sentencing severity revolution and modern mass incarceration?

DOJ review confirms government waste and mismanagement of BOP's handling of compassionate release

Public policy groups have long criticized the many terrible ways in with the federal Bureau of Prisons (BOP) administered the authority Congress provided it for the early release of prisoners in dire condition. Most notably, late last year, as discussed here, Human Rights Watch and Families Against Mandatory Minimums today released a major report criticizing the poor administration of the federal compassionate release program. Today, this big new report from the Justice Department's Office of Inspector General confirmed what critics have long said. Here are key excerpts from the final portion of the report:

We concluded that an effectively managed compassionate release program would result in cost savings for the BOP, as well as assist the BOP in managing its continually growing inmate population and the resulting capacity challenges it is facing.  We further found that such a program would likely have a relatively low rate of recidivism.  However, we found that the existing BOP compassionate release program is poorly managed and that its inconsistent and ad hoc implementation has likely resulted in potentially eligible inmates not being considered for release.  It has also likely resulted in terminally ill inmates dying before their requests for compassionate release were decided.  Problems with the program’s management are concentrated in four areas.

First, the BOP’s regulations and Program Statement do not establish appropriate medical and non-medical criteria for compassionate release consideration and do not adequately define “extraordinary and compelling” circumstances that might warrant release....

Second, the BOP has failed to put in place timeliness standards at each step of the review process....

Third, the BOP does not have procedures to inform inmates about the compassionate release program....

Fourth, the BOP does not have a system to track all compassionate release requests, the timeliness of the review process, or whether decisions made by institution and regional office staff are consistent with each other or with BOP policy....

The BOP also does not track the time it takes to process requests and has no formal or standard means of determining the date the review process begins.  Consequently, the BOP cannot monitor its process effectively.  This is especially problematic for inmates with terminal medical conditions, and we found that 13 percent of inmates whose requests had been approved for compassionate release by a Warden and Regional Director died before a decision was made by the BOP Director....

Further, the BOP does not maintain cost data associated with the custody and treatment of inmates who may be eligible for compassionate release.  Despite this lack of data, the BOP reported to Congress that it could save $3.2 million by expanding the compassionate release program....

Finally, we found the rate of recidivism for inmates approved and released through the existing compassionate release program to be low compared with the overall rate for federal inmates released into the community.

Some recent related posts:

• New report assails (lack of) compassionate release in federal system
• NY Times editorial laments lack of compassionate release

Intriguing final (sentencing) chapter in landmark SCOTUS Fourth Amendment case

Via this post at The BLT, which is titled "Man in Landmark Supreme Court GPS Case Pleads Guilty," we find out today that Antoine Jones' success in convincing the Supreme Court to declare his warantless GPS tracking to be an unconstitutional search in the end allowed him to secure a plea deal with a sentence of only 15 years in prison rather than his original federal LWOP term.  Here how:

Facing his fourth trial, the man at the center of a landmark U.S. Supreme Court ruling on GPS tracking pled guilty today to a drug conspiracy charge and was sentenced to serve 15 years in prison.

Antoine Jones was arrested in 2005 and charged with participating in a drug trafficking ring in the Washington area. Jones will receive credit for time already served, meaning he'll spend an additional seven years in jail.  After he is released, U.S. District Judge Ellen Segal Huvelle sentenced him to five years of supervised release and 200 hours of community service.

"I think you can teach other people how to stay out of trouble," Huvelle said to Jones during today's hearing. Huvelle has handled the case from the beginning.  "It's been a long haul, Mr. Jones," she said.

Jones stood trial three times. His first trial ended in a mistrial in 2007. He was found guilty at the second trial and received a life sentence, but the U.S. Court of Appeals for the D.C. Circuit vacated that conviction after finding the government violated his Fourth Amendment rights through the warrantless use of a Global Positioning System tracking device.

Last year, the U.S. Supreme Court affirmed the D.C. Circuit's ruling, meaning prosecutors couldn't use the GPS data at trial.  The government had used the information to link Jones to a drug house in Maryland.  During the course of the investigation, the authorities never saw Jones personally handle any drugs.

Following a third trial earlier this year, in which Jones represented himself, the jury split and Huvelle declared a mistrial.  The government announced shortly after that it planned to seek a fourth trial.

Following today's hearing, Assistant U.S. Attorney Darlene Soltys declined to discuss details of the plea negotiations, except to confirm that Jones continued to represent himself.  She also declined to comment on the resolution of the case....

Jones, who waived his right to appeal, requested Huvelle recommend he be placed in a federal prison near Atlanta, where he has family.  Huvelle agreed to make the recommendation; the Federal Bureau of Prisons will make the final decision about his placement.

Huvelle urged Jones to do something "legitimate" with his life after serving his time in jail.  She pointed out that some of the jurors thought Jones performed well as his own lawyer and that he had wasted his talents.

New big Human Rights Watch report assails placing juve sex offenders on registries

As reported in this new AP piece, Human Rights Watch today released a big report urging governments to stop placing juveniles on publicly accessible sex-offender registries. Here are parts of the AP account of the report and reactions thereto:

Human Rights Watch said its report, being released Wednesday, is the most comprehensive examination to date of the impact that registry laws have on juvenile sex offenders. "Of course anyone responsible for a sexual assault should be held accountable," says lawyer Nicole Pittman, the report's author.  "But punishment should fit both the offense and the offender, and placing children who commit sex offenses on a public registry — often for life — can cause more harm than good."

The report says the laws, which require placing offenders' photographs and personal information on online registries, often make them targets for harassment and violence. In two cases cited in the report, youths were convicted of sex offenses at 12 and committed suicide at 17 due to what their mothers said was despair related to the registries.  One of the boys, from Flint, Mich., killed himself even after being removed from the list....

The registry laws generally include restrictions that prohibit offenders from living within a designated distance of places where children gather, such as schools and playgrounds. "They often struggle to continue their education," Human Rights Watch said.  "Many have a hard time finding — and keeping — a job, or a home."

According to Human Rights Watch, 747,000 adult and youth sex offenders were registered nationwide as of 2011. The organization said it was unable to quantify how many were juveniles, but it interviewed 281 youth sex offenders while preparing the report, as well as defense attorneys, prosecutors, judges, law enforcement officials and victims of child-on-child sexual assault....

Under a federal law, the Adam Walsh Act, states are required to include certain juvenile sex offenders as young as 14 on their registries.  Some states have balked at complying with this requirement, even at the price of losing some federal criminal-justice funding. Other states have provisions tougher than the federal act, subjecting children younger than 14 to the possibility of 25-year or lifetime listings on public registries.

According to Pittman, it's fairly common in about 35 states for juveniles to be placed on public sex-offender registries.  Other states take that step only for juveniles convicted of sex offenses in adult court, she said, while a few place juvenile sex offenders only on registries that are not accessible by the public.

The report recommends that all juveniles be exempted from the public registration laws, citing research suggesting they are less likely to reoffend than adult sex offenders. Short of a full exemption, the report says, registration policies for juveniles should be tailored to account for the nature of their offense, the risk they pose to public safety and their potential for rehabilitation....

Scott Burns, executive director of the National District Attorneys Association, said his organization would not support a blanket exemption of juveniles from the sex-offender registries. But he said prosecutors should have the discretion to require registration or not, based upon each case.

"If a 15-year-old 'sexted' a picture of him or herself, it is safe to say that prosecutors would take appropriate steps to ensure that person isn't required to become a registered sex offender for life," Burns said in an e-mail. "If a 17-year-old had committed multiple violent sex offenses against children, registration as a sex offender would most likely be recommended."...

Mai Fernandez, of the center for victims of crime, said the entire sex-offender system — covering both juveniles and adults — is flawed and needs an overhaul.  "If you know a young person living in your neighborhood has raped someone, there are things that should kick in — tighter supervision, more services — to be sure that child doesn't commit that crime again," Fernandez said.  "That's more important than the registry."

The full 111-page HRW report, which is titled "Raised on the Registry: The Irreparable Harm of Placing Children on Sex Offender Registries in the US," can be accessed via this link in both complete pdf and on-line form. Here is how that page describes the report:

This 111-page report details the harm public registration laws cause for youth sex offenders. The laws, which can apply for decades or even a lifetime and are layered on top of time in prison or juvenile detention, require placing offenders’ personal information on online registries, often making them targets for harassment, humiliation, and even violence. The laws also severely restrict where, and with whom, youth sex offenders may live, work, attend school, or even spend time.

Is adjective "draconian" fitting for a proposed 13-year prison sentence for insider trader?

The question in the title of this post is prompted by this lengthy new Bloomberg article about the defense's sentencing submission in a high-profile, white-collar federal sentencing scheduled for later this month.  The Bloomberg article is headlined "Chiasson Seeks Leniency From U.S. Judge Citing Charitable Deeds," and here are excerpts:

Level Global Investors LP co-founder Anthony Chiasson, convicted of an insider-trading scheme that reaped $72 million, asked a judge to give him less time in prison than the 13-year term called for by U.S. sentencing guidelines.

Lawyers for Chiasson, 39, called such a sentence “draconian” in a, April 29 court filing. They urged U.S. District Judge Richard Sullivan in Manhattan to impose an unspecified shorter prison term, saying the alleged crimes were “aberrant” and that Chiasson has led an “exemplary life.”

Defense lawyers Greg Morvillo and Reed Weingarten cited Chiasson’s charitable work, including his effort to save his Catholic Jesuit high school in Portland, Maine, from closure, the creation of a scholarship program for his alma mater, Babson College, and his contributions to the Robin Hood Foundation and the Michael J. Fox Foundation.  “Anthony Chiasson is an extraordinary man,” Morvillo and Weingarten said in a memo to Sullivan. “But for the conduct that brings him before the court, Anthony has led an exemplary life.”

Chiasson, who began his career on Wall Street at Solomon Brothers and left SAC Capital Advisors LP to start the hedge fund, is scheduled to be sentenced May 13.  While U.S. court officials said that based on non-binding guidelines Chiasson should serve 121 to 157 months in prison, his lawyers said the appropriate range is 78 to 97 months.

A Manhattan federal jury in December found Chiasson guilty of five counts of securities fraud and convicted former Diamondback Capital Management LLC portfolio manager Todd Newman of one count of conspiracy and four counts of securities fraud.  Newman is scheduled to be sentenced May 2.  The U.S. alleged that the two portfolio managers were part of a “corrupt chain” of hedge-fund managers and analysts and insiders at technology companies who swapped and traded on illicit tips.  The U.S. said Level Global earned $68 million as a result of the insider trading based on material nonpublic information Chiasson received from Spyridon “Sam” Adondakis, a former Level Global analyst who worked for him. 

Defense lawyers estimated the fund earned $11.7 million as a result of trading in the stocks of Dell Inc. and Nvidia Corp. They disputed the government’s allegation that Chiasson based the transactions on illicit information and argued that federal sentencing guidelines allow prosecutors to inflate profits generated as a result of alleged crimes.  “There is only one reason the range is so high: the guidelines’ unrelenting predisposition to punish profit,” Morvillo and Weingarten said.

Morvillo and Weingarten also argued that Chiasson “should not be required to forfeit gains of any co-conspirators.” They said that the fund earned more than $21.6 million on trades by David Ganek, a Level Global co-founder who was ruled by Judge Sullivan to be an uncharged co-conspirator in the insider- trading scheme.  Adondakis, who pleaded guilty, testified that he didn’t tell Ganek about the source of his tips.  Ganek hasn’t been charged with wrongdoing....

Chiasson’s lawyers argued that he deserves a sentence comparable to others convicted of insider trading, including former Goldman Sachs Group Inc. director Rajat Gupta, who was ordered to serve two years in prison, and former Primary Global Research LLC executive James Fleishman and Michael Kimelman, the co-founder of Incremental Capital LLC, who were both given 30- month prison terms.  In January, a federal appeals court allowed Gupta to remain free while he fights his conviction.  Both Fleishman and Kimelman were recently released from prison.

The adjective draconian is often used now as a synonym for unduly harsh punishments, and I am sure I have sometimes used the term this way in various settings. But the faint-hearted linguistic originalist in me cannot help but note that arguably no prison terms should be really called draconian because incarceration was largely an unknown punishment in achient Greece and Draco the lawgiver was (in)famous for prescribing death as a punishment for both major and minor crimes. (With tongue-in-cheek, I suppose maybe a different (but less real) Draco could be expected to be a proponent of long prison terms, though I this this character probably realized he and his family only narrowly avoid imprisonment in Azkaban.)

Historical and literary references aside, these latest insider-trader, white-collar sentencing cases are surely worth watching closely.  My sense is that, especially with the economy seeming to be improving, there is diminishing public and social pressure to "throw the book" at wall-street types like Anthony Chiasson.  And yet, as the arguments in Chiasson's case highlight, every below-guideline sentence given in major white-collar cases provide a strong defense argument in later cases that only below-guideline sentences are proper pursuant to the sentencing commands of 3553(a).

"The Boston Bomber Should Face The Possibility Of The Death Penalty"

The title of this post is the headline of this notable new op-ed published today in Forbes and authored by (frequent SL&P blog commentor) William Otis.  Here are excerpts from this piece:

Dzhokhar Tsarnaev and his brother murdered three people at the Boston Marathon, and grossly mutilated dozens more.  The brother was killed in a shootout with police.  The question is what justice Dzhokhar should face.  The answer, as the Justice Department apparently understands, is a jury empowered to consider the death penalty....

Wanting justice is not wanting vengeance.  It is for this reason that our most honored Presidents — Washington, Lincoln and FDR — not only supported but used the death penalty. President Obama supports it.  At least three-fifths of Americans likewise support it.  Liberal New York Sen. Chuck Schumer says he supports it for the Boston killer.  This is not because these people are bloodthirsty or revenge-driven.  It’s because a prison sentence, no matter what its length, hardly seems to fit some gruesome, hate-driven, calculated crimes.

But that’s not the end of it.  Contrary to a typical abolitionist claim, the death penalty is a deterrent, as the majority of scholarly studies has found.  Anecdotal evidence tells us the same thing; California Sen. Diane Feinstein once recounted the story of a robber who left his gun at home for fear that, if he used it, he could face a death sentence....

While the are some cases in which a reasonable person could think we’ve got the wrong guy, this is not one of them.  There is simply no sane account in which Dzhokhar Tsarnaev didn’t do it.

Some have voiced racial objections to the death penalty.... But that has no bearing in this case in any event, since neither Tsarnaev nor his victims is a member of a race that has historically suffered discrimination.  The legacy of Jim Crow simply does not exist in this case.

The central reason to keep the death penalty available is graphically illustrated here.   The crime was unbelievably sinister, cruel and sadistic; the victims, including an eight year-old, numerous; the perpetrator unrepentant; and his guilt not open to question by any reasonable person.  A society without the moral confidence to use the ultimate punishment in such a case has all but announced that it has no moral confidence at all.

To say that the jury should be empowered to consider the death penalty for Tsarnaev is not necessarily to say it should be imposed.  There may be mitigating circumstances, not presently in sight, that would warrant a lesser sentence.  It is the genius of the jury system that it takes cases one at a time.  But it is for exactly that same reason that we should not take the death penalty off the table in advance, before all the facts -- possibly mitigating, and possibly even more damning -- are known.

Though not explicitly stated by Bill Otis in this Forbes commentary, I perceive an implicit suggestion here that it would only be proper in this case for a federal jury after a transparent in-court sentencing hearing, and not for a federal prosecutor via an unexplained back-room plea deal, to decide what the proper punishment for Dzhokhar Tsarnaev.  And via this post at Crime & Consequences, titled "No Quick and Dirty Deals," Bill Otis makes a bit more explicit why he thinks it would, at least right now, be inappropriate for prosecutors "to take capital punishment off the table in exchange for Tsarnaev's cooperation."  Bill concludes his C&C post this way: "In this high stakes showdown, give no deals to this devil and let a jury do what the Framers designed it to do."

For a host of reasons, I largely agree with Bill in this instance that the final punishment for Dzhokhar Tsarnaev should ultimately be decided by a jury (or a judge). My principal reason for this view in this is because I believe all sentencing decision-making should be as deliberative, open and transparent as possible, and that final sentencing outcomes should result from adjudicative judgements made by neutral judicial-branch actors rather than via opaque bargains and unreviewable policy decisions made by executive branch officials.

While I am pleased that, in this "high-stakes" setting, Bill Otis sees the value of judicial branch actors having ultimate sentencing authority, I am disappointed and somewhat confused why he has a different view when prison sentences are at issue. Specifically, in long comment exchange to a post about reform of federal mandatory minimums, Bill expressed great concerns about letting judges select final sentencing outcomes on the record according to federal sentencing law rather than letting prosecutors make this decision behind closed doors based on their charging and bargaining instincts.  

Dare I suggest it is only because Bill Otis likes the potential outcome of judicial-branch sentencing (rather than executive branch sentencing) in the Tsarnaev case that he now is keen to assert that prosecutors should not take a particular sentencing option off the table?  (For the record, I think it is fine for Bill Otis (or anyone else) to believe/decide that he will always favor whichever sentencing decision-maker is likely to be harsher (or softer).  But I hope he (and others) recognizes that such a position --- whether driven by a desire for consistent sentencing harshness or sentencing leniency --- necessarily prioritizes a substantive commitment to certain kinds of sentencing outcomes, and suggests that certain substantive sentencing ends always justify whatever procedural means are needed to get there.

Some related recent posts:

• Horrific crime with uncertain responsibility and uncertain punishment on Patriots' Day in Boston
• Can the new media help identify the two persons the FBI are seeking in the Boston bombings?
• Spotting punishment and victims' rights issues after capture of Boston bombing suspect #2, Dzhokar Tsarnaev
• Does Boston bombing provide still more support for my federal-only death penalty perspective?
• "Balancing the State and Federal Roles in Boston Bomber Case"
• Bad news for hard-core death penalty fans: Judy Clarke joins defense team for Boston bomber Dzhokhar Tsarnaev

Mizzou Supreme Court hears arguments concerning Miller's impact

As reported in this local article, headlined "MO Sup Court hears cases of two St. Louis juveniles sentenced to life without parole," the top court in the Show Me State is trying to figure out how it must adjust its sentencing system in the wake of last year's Miller ruling by the US Supreme Court.  Here are the basics of what is now before the Supreme Court of Missouri:

Two St. Louis cases were among the first to go before the state's high court Tuesday as it tries to decide what should be done with dozens of juvenile murder convicts who were sentenced to mandatory terms of life without parole before the U.S. Supreme Court declared it unconstitutional....

One of those is the high-profile case of Ledale Nathan Jr., who was 16 when he and an accomplice stormed into a home in the LaSalle Park neighborhood of St. Louis, burglarized it and shot the family members inside. One woman was killed and two others, a city firefighter and police officer, were wounded.

In Missouri, first-degree murder carries only two sentencing options: life without parole, or death (which the U.S. Supreme Court had already ruled could not apply to juveniles).  But in the June 2012 Miller v. Alabama decision, the U.S. Supreme Court determined that while juveniles can be sentenced to life without parole, it cannot be automatic and must only be done after the judge or jury has the opportunity to hear mitigating circumstances that include the defendant's age and a range of other factors.

The state legislature is expected to ultimately decide how to change the statutory range of punishment to comport with the court ruling, clearing things up for cases going forward. But in the meantime, the state supreme court is being asked to consider what the Miller decision means for the older cases — both those on direct appeal, and those that have exhausted their state court remedies.

There are 84 cases in Missouri in which a person is currently serving life without parole for an offense committed as a juvenile, according to the last count by the Missouri Department of Corrections.  Of those cases, 46 of the offenders were age 17 at the time of the crime, 25 were age 16, 11 were age 15, and two were age 14.

Of the three cases argued on Tuesday, two were being heard on direct appeal, one being the Nathan case.  The state, represented by Attorney General Kris Koster's office, conceded that the two cases should get a new sentencing hearing, but argued the only options should be life — which amounts to 30 years in Missouri — or life without parole.

"Allowing life and life without parole achieves as close as the court can get without adding words or redrafting the statute," argued Assistant Attorney General Evan Buchheim, in the Nathan case. Buchheim said until the legislature decide on anything different, "we've got to work with what we've got."

But Nathan's attorney, Jessica Hathaway, and the American Civil Liberties Union, which argued as a friend of the court, contended that route would go beyond the court's authority by rewriting the statute.  They argued instead for a sentencing range that applies for second degree murder, or a Class A felony, which is ten to 30 years (life)....

Similar arguments were made in the other case being heard on direct appeal, the St. Louis case of Laron Hart, convicted of the fatally shooting of a man and robbery of a woman at gunpoint in January 2010, when he was 17.  In the third case involves the 1995 conviction of a McDonald County woman, Sheena Eastburn, as an accomplice in the shooting death of her husband.  The state has argued Miller does not apply to her case because she has exhausted her appeals, among other procedural issues.

Might the Gov of Virginia soon be a federal criminal defendant?

The question in the title of this post is prompted by this new Washington Post piece, headlined "FBI looking into relationship between McDonnells, donor."   Here are the basics:

FBI agents are conducting interviews about the relationship between Virginia Gov. Robert F. McDonnell, his wife, Maureen, and a major campaign donor who paid for the food at the wedding of the governor’s daughter, according to four people familiar with the questioning.

The agents have been asking associates of the McDonnells about gifts provided to the family by Star Scientific chief executive Jonnie R. Williams Sr. and actions the Republican governor and his wife have taken that may have boosted the company, the people said.

Among the topics being explored, they said, is the $15,000 catering bill that Williams paid for the 2011 wedding of McDonnell’s daughter at Virginia’s historic Executive Mansion.  But questions have extended to other, previously undisclosed gifts from Williams to Maureen McDonnell as well, they said.

The interviews, at which Virginia State Police investigators were present, began in recent months as an outgrowth of a federal investigation of securities transactions involving Star Scientific, which produces a dietary supplement called Anatabloc.  The company disclosed that probe in a regulatory filing last month, saying it had received subpoenas from the U.S. attorney’s office for the Eastern District of Virginia.

Now, federal officials are trying to determine whether to expand that investigation into a broader look at whether McDonnell or his administration took any action to benefit Star Scientific in exchange for monetary or other benefits, according to the four people familiar with the interviews.  It is unclear whether the probe will be broadened.

"D.C.’s Race Disparity in Marijuana Charges Is Getting Worse"

The title of this post is the headline of this notable recent commentary by Rend Smith appearing in Washington's City Paper.  Here are excerpts (with links from the original):

[D]ozens of marijuana activists converged on the National Mall to celebrate 4/20 and push for the drug's legalization.  If photos and videos are any indication, most of the attendees were white.  As a black man, I find their efforts laudable and hearteningly altruistic. D.C.'s campaign against marijuana is racist. If it wasn't, District marijuana enforcement would look a lot less abominable.

In 2010, I wrote about how Jon Gettman, a public policy professor at Shenandoah University, pored through the city's 2007 marijuana arrest records to discover the District had arrested more pot offenders per capita than any other jurisdiction in the country. Gettman also found that the overwhelming majority of pot miscreants the city went after that year — 91 percent — was black.

... In 2007, a black person was eight times more likely to be arrested for a District marijuana offense than a white person, even though researchers have exposed what any college pot dealer can tell you from the comfort of his Barcalounger: Members of both racial groups consume cannabis at nearly equal rates.

D.C.'s dope divide is just as striking when you zoom out.  According to arrest numbers obtained from the Metropolitan Police Department and crunched by a statistician, between 2005 and 2011, D.C. cops filed 30,126 marijuana offense charges.  A staggering number of those — 27,560, or 91 percent — were filed against African-Americans. Only 2,097 were filed against whites.

Blame-the-victim folklore contends that pot-arrest asymmetries, which show up in various cities around the country, are about blacks smoking outside and getting their pot on street corners.  Recent studies contradict that.  And if D.C.'s shameful pot disparity was about anything but racial bias, we'd see it narrowing.

Instead, though the number of black and white pot charges filed fluctuated from year to year, reefer charges filed against blacks rose 6 percent and declined 10 percent for whites between 2005 and 2011.

Over the last decade, the federal city's black population has wavered as its white population shot up.  If municipal pot arrests were impartial, that should have equaled more white potheads learning what the inside of a squad car looked like as arrests of black potheads became scarcer.  Latinos, moving into the city in steady if not overwhelming numbers, for instance, saw their pot arrests rise 40 percent between 2005 and 2011, from 93 pot charges to 153.

Also, at a time when weed has become another chic amenity, there's a good chance that the city's affluent whites have most of D.C.'s stash. Last year, Washingtonian ran a gleeful article about the massive amount of weed rambling through D.C.'s elite neighborhoods courtesy of drug-dealing stroller moms and tony pot-delivery services....

The only politician explicitly working to address the dope divide is longshot at-large D.C. Council candidate Paul Zukerberg, who's made marijuana decriminalization part of his platform.  He attributes the disparity to cops using stop-and-frisk powers on young black males. "In D.C., we’re giving young people twice as many marijuana arrests as high school diplomas," he writes on his website.

Other D.C. politicians I contacted, like Mayor Vince Gray, wouldn't comment on the matter or didn't return messages.  But when I mentioned the dope divide to Police Chief Cathy Lanier (who told the Washington Post she’d tried weed as teen) during an email exchange last year, the top cop seemed concerned.  “Broad statement,” she wrote. “Mixed feelings on enforcement here...”  When I tried to get Lanier to say more, she referred me to her spokesperson, who told me that MPD doesn't insert itself into politics.

Unsurprising (and justifiable?) gender sentencing disparities in NJ teacher-student sex cases

As detailed in this local story, an award-winning, 31-year-old female teacher in New Jersey avoided any prison time at her sentencing yesterday following a plea to sex charges after an illegal relationship a 15-year-old student.  Here are the basics:

Erica DePalo was in the prime of her teaching career.  Just 31-years-old, with nearly a decade of teaching behind her, letters show the Essex County Teacher of the Year was loved by students and respected by colleagues.  But hidden behind her cheerful facade was a woman suffering from extreme depression and anxiety, DePalo’s lawyer told the court — leading to an illicit sexual relationship with a 15-year-old student....

The former West Orange high school teacher, who admitted to the relationship with her student, was sentenced in state Superior Court today to a three-year suspended sentence, which means she will not serve any prison time if she cooperates with the conditions of her parole.  DePalo also must register as a sex offender under Megan’s Law and cannot seek public or government office nor have any contact with the victim.

The non-custodial plea was largely influenced by DePalo’s psychiatric condition at the time of the sexual relationship, attorneys said.  Months before DePalo began the relationship with the boy, she was diagnosed with bipolar disorder, [defense attorney Anthony] Alfano said.  A doctor incorrectly prescribed anti-depressants which affected her sense of entitlement and judgment....

In court, DePalo took responsibility for the affair, apologizing to the victim in a quivering voice, tears running down her cheeks. "I feel nothing but remorse for my actions and deep, deep sadness for all I’ve lost because of them," she said.

Police charged DePalo in August with first-degree aggravated sexual assault, second-degree sexual assault and endangering the welfare of a child. The first two charges were dropped as part of the plea deal.  If DePalo had gone to trial and been convicted, she could have faced up to ten years in prison.

The non-custodial sentence was previously criticized by West Orange superintendent James O’Neil as too lenient. Both Alfano and Assistant Prosecutor Tony Gutierrez said the victim’s family consented to the plea. Gutierrez said the 15-year-old boy, who was a student in DePalo’s honor’s English class, was the only victim and that the relationship lasted a few weeks.

Alfano said gender was never brought up in plea negotiations, referencing a Star-Ledger analysis of 97 cases which revealed men serve about 40 percent longer jail terms and go to prison more often than women in these cases.

The referenced analysis on the study of NJ teacher-student sex cases appears in this companion article, which provides this accoutning:

Critics have called the punishment for the former Essex County teacher of the year too lenient and reflective of a double standard that disproportionately penalizes men for similar relationships with students.

A Star-Ledger analysis of 97 cases in New Jersey over the past decade reveals significant disparities: Men are on average sent to jail in more cases and receive longer sentences. The data about 72 men and 25 women also shows:

• Male defendants went to prison in 54 percent of cases compared with 44 percent of cases for female defendants;

• Men averaged 2.4 years in prison compared with 1.6 years in prison for women, or 50 percent more time;

• Ninety-three of the 97 cases ended in plea deals;

• €…Forty-seven cases ended in noncustodial sentences, which typically involved pre-trial intervention programs or probation.

There are various reasons for the disparities in these cases, experts say, including the perception that girls and women need to be protected and are more vulnerable than their male counterparts, the availability of evidence, and the willingness of the student to participate in the prosecution.

"There’s a general societal disposition that does continue to treat women as the gentler sex, so typically the threshold for sending women to prison is higher," said Martin Horn, director of the New York State Sentencing Commission and a professor at the John Jay College of Criminal Justice.

All cases studied involve teachers, substitute teachers, coaches or school personnel who admitted to, or were convicted of, engaging in sexual relationships with students connected to their school.  "Juries and judges sort of make a consideration about how exploitative the crime is and how predatory the perpetrator is," Horn said.  "The system is supposed to make discriminations or make distinctions between individuals based on their perceived levels of culpability."

Most of the 97 cases analyzed were described in reports as consensual in nature (though not in the eyes of the law).  In New Jersey, the age of consent is 16, but a person in a supervisory role, such as a teacher, can be guilty of sexual offenses even if a student is 16 or 17. 

Because New Jersey’s Administrative Office of the Courts does not keep separate records on sex crimes committed by educators, The Star-Ledger used reports filed by the state Board of Examiners detailing teacher license suspensions. The suspension reports that described inappropriate student relationships were cross-checked with court records to obtain necessary information. This is not inclusive of every teacher-student case in the past 10 years.

Bad news for hard-core death penalty fans: Judy Clarke joins defense team for Boston bomber Dzhokhar Tsarnaev

As reported in this new AP piece, "Judy Clarke is joining the team representing the suspect in the Boston Marathon bombings."  Here is more of the basics of federal public defender Clarke's appointment:

The appointment of Clarke, based in San Diego, Calif., was approved Monday by U.S. Magistrate Judge Marianne Bowler. Bowler denied a request from Dzhokhar Tsarnaev’s public defender to appoint a second death penalty lawyer.  Bowler says Tsarnaev’s lawyers could renew their motion to appoint another death penalty expert if Tsarnaev is indicted....

Clarke’s clients have included Unabomber Ted Kaczynski; Susan Smith, who drowned her two children; and most recently Tucson, Ariz., shooter Jared Loughner.  All received life sentences instead of the death penalty.

Not quite coincidentally, this distinct AP piece from last week provided a little bit of a profile of Clarke and her work, and it highlighted her ability to working out plea deals with prosecutors that serve to spare her clients from facing the death penalty.  Not listed in this latest AP article is Clarke's representation of Olympic Park bomber Eric Rudolf, whose crimes and motivation are arguably most comparable to what it seems we so far know about Dzhokhar Tsarnaev’s crimes and purported motives.  As with the federal mass murderers Kaczynski and Loughner, Clarke helped secure an LWOP plea deal with Rudolf to save his life.

I mused in this post a couple of weeks ago when Tsarnaev was first captured that "as in the case of the Unibomber and the Tucson shooter and other notorious federal mass murderers, I would not be surprised if eventually capital charges are taken off the table for a guaranteed LWOP sentence in exchange for a guilty plea."  The appointment of Clarke prompts me to now turn my musings into a prediction: I think the odds are now pretty good that, after a fair bit of (costly?) legal wranging over the next few months or years, Dzhokhar Tsarnaev will plead guilty and get sentenced to life without the possibility of parole. 

Some related recent posts:

• Horrific crime with uncertain responsibility and uncertain punishment on Patriots' Day in Boston
• Can the new media help identify the two persons the FBI are seeking in the Boston bombings?
• Spotting punishment and victims' rights issues after capture of Boston bombing suspect #2, Dzhokar Tsarnaev
• Does Boston bombing provide still more support for my federal-only death penalty perspective?
• "Balancing the State and Federal Roles in Boston Bomber Case"

UPDATE:  Just moments after click "Publish" on this post, I saw this interesting new commentary by Mark Osler at MSNBC headlined "Sentence the Boston bomber to meaninglessness." The piece contends that LWOP may be the best "punishment" in this case in these interesting terms:

[W]hat someone like Tsarnaev probably fears most is meaninglessness. He is typical of terrorists, in that he is a young man of little accomplishment who chose to make his mark on the world through a terrible act.  For someone like Tsarnaev, and many others like him, the real fear is a life of being unimportant.  The evidence of that is already clear, given that he chose a path of carnage and destruction, with the high risk of death that comes with all that, rather than to continue life as a nondescript college student.

Fortunately, the alternative to execution in the federal system is precisely what Tsarnaev seems to fear: utter meaninglessness.

Technically, the sentence is called life without parole (there is no parole in the federal system for any sentence).  However, more than anything, it is a sentence to an existence without notice or meaning, to live out one’s life without the deep interactions with the world that inspire people to great and terrible acts.  It begins with being assigned a number which largely replaces one’s name, and it ends with an unnoticed death, rather than the burst of attention that accompanies an execution.

A notable DIG (with lots of explanation) from SCOTUS concerning indigent defense

The Supreme Court has a significant non-decision this morning in Boyer v. Louisiana. Here is the entire per curiam decision for the Court: "The writ of certiorari is dismissed as improvidently granted." But this mini-non-ruling also came with a concurring opinion authored by Justice Alito, joined by Justices Scalia and Thomas, and a a dissenting opinion authored by Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan. This surely suggests that the Chief Justice and/or Justice Kennedy wanted this case to go away rather than have to pick sides on the merits.

Here is a key starting paragraph from Justice Alito's four-page concurrence:

We granted certiorari in this case to decide “[w]hether a state’s failure to fund counsel for an indigent defendant for five years, particularly where failure was the direct result of the prosecution’s choice to seek the death penalty, should be weighed against the state for speedy trial purposes.”  Pet. for Cert. i.  The premise of that question is that a breakdown in Louisiana’s system for paying the attorneys representing petitioner, an indigent defendant who was charged with a capital offense, caused most of the lengthy delay between his arrest and trial.  Because the record shows otherwise, I agree that the writ of certiorari was improvidently granted.

Here is a key starting paragraph from Justice Sotomayor's 10-page dissent:

We granted certiorari to decide whether a delay caused by a State’s failure to fund counsel for an indigent’s de fense should be weighed against the State in determining whether there was a deprivation of a defendant’s Sixth Amendment right to a speedy trial.  568 U.S. ___ (2012).  Rather than dismiss the writ as improvidently granted, I would simply address this question.  Our precedents provide a clear answer: Such a delay should weigh against the State.  It is important for States to understand that they have an obligation to protect a defendant’s constitutional right to a speedy trial. I respectfully dissent.

SCOTUS grants cert on federal criminal law causation issues

The Supreme Court, despite having one of it members on the DL, gets a new week started with some notable criminal justice action.  First and foremost, it has granted review, via this order list, in Burrage v. United States (12-7515).  Here is how the SCOTUSblog folks describes the questions on which cert was granted in Burrage:

First, whether the crime of distributing drugs causing death is a strict liability crime without a cause requirement.

Second, whether a person can be convicted of that crime under jury instructions which allow a conviction when the heroin contributed to death but was not the sole cause of the death.

The way these issues matter in Burrage can be figured out from the Eighth Circuit decision from last year, which can be accessed at this link.  And, thanks to the SCOTUSblog folks, now the cert petition can be accessed at this link.

"Passive Pedophiles: Are child porn viewers less dangerous than we thought?"

The title of this post is the headline of this notable recent commentary by Emily Bazelon at Slate. Here are excerpts:

Making child pornography is abuse.  What about possessing it? As a group, these offenders — the ones who look but don’t abuse children to create new images — are serving increasingly long prison sentences. In 2004, the average sentence for possessing child pornography was about 4 ½ years. In 2010, it was almost eight years.  Child sex offenders may also be kept in prison beyond their release dates through “civil commitment” if the state deems that they’ll have “serious difficulty in refraining from sexually violent conduct or child molestation if released.”

It’s hard to feel concern for people (mostly men) who prowl the Internet for sexually abusive images of children, some of whom are very young.  Their crimes aren’t “victimless,” as defense lawyers sometimes argue.  These men create the market for new images.  They are the demand behind the supply.  I’ve written about how hard it is for women who were abused and photographed as girls to know that men are still viewing, and taking pleasure in, the record of their suffering — and about the victims’ efforts to win restitution from these men.

But the main reason Congress has upped the penalties for men who possess child pornography is the deep-seated belief that many of them physically abuse children and that they are highly likely to keep doing so because they can’t stop themselves.  Is that true? I’ve heard it so many times it’s hard to think otherwise.  Yet that premise is contested in a new 468-page report by the U.S. Sentencing Commission (the body Congress established to advise it about federal sentencing law).  The commission did its own research.  It says the federal sentencing scheme for child pornography offenses is out of date and argues that this leads to penalties that “are too severe for some offenders and too lenient for other offenders.”...

This isn’t an easy subject.  Punishments for sex offenders move only in one direction in this country — they get harsher.  But the Sentencing Commission’s critique should get a serious hearing.  Prison comes with a cost for taxpayers as well as the people it incarcerates.  And if there’s increasing hope for effective treatment, as the commission suggests, investing in it could save kids....

Maybe men convicted of possessing child pornography probably reoffend more than the researchers can measure because they don’t tell.  Surely they commit more new crimes than the number they get arrested for, as the commission is careful to say.  The question is how many more.  Do they really pose a different risk in this regard than other criminals do?  The Justice Department “takes issue” with the commission’s conclusions about recidivism and the link between viewing pornography of children and molesting them. These questions won’t be resolved any time soon.  In the meantime, Congress could fix the aspects of child pornography sentencing that both DOJ and the Sentencing Commission see as broken.

Months before scheduled sentencing, lawyers buzzing about Jesse Jackson Jr.'s mental health

As highlighted in this story about a hearing in a high-profile federal case in DC, "prosecutors raised the prospect on Friday in court of having their experts examine former Rep. Jesse Jackson Jr. if his lawyers plan to raise his bipolar disorder as a mitigating factor in trying to reduce his prison sentence." Here is more:

U.S. District Court Judge Amy Berman Jackson made no decision after prosecutor Matt Graves said he wanted to “alert” her to the possible issue in advance of the sentencing July 1 of Jackson and his wife, former Ald. Sandi Jackson.  The two pled guilty in February to looting $750,000 from campaign funds for personal use.

Judge Jackson asked for the hearing because she is taking over the case after U.S. District Court Judge Robert Wilkins — who handled the pleas of the couple — withdrew without explanation from the case.

Graves said the government is “entitled” to have Jackson checked “by our own experts” if Jackson’s lawyers decide to argue Jackson’s mental health should be taken into consideration by the judge when she sentences him.

Defense attorney Reid Weingarten told Judge Jackson that the former congressman’s bipolar disorder is well known and “not controversial.”  Weingarten also said they do not intend to argue that Jackson’s “criminal activity” was caused by his mental illness.  The former congressman was hospitalized at Mayo Clinic last year for treatment of bipolar depression.

Judge Jackson — who consolidated two separate sentencing dates into one morning July 1 sentencing session for the couple — had nothing before her to rule on, since the defense lawyers have yet to show their hand.  The judge signaled that the former congressman’s mental state may be a factor for her, since she said she was required to consider “who he is as a person.”

Recent related posts:

• You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?
• Jacksons plead guilty and federal prosecutors recommend significant prison terms for both
• Noteworthy new lawyer and now a new judge for Jesse Jackson Jr. sentencing

"Sometimes a number is just a number, but when the number at issue triggers an enhancement under the Sentencing Guidelines, that number matters."

The title of this post is the first sentence of this notable Eleventh Circuit panel decision today in US v. Washington, No. 11-14177 (11th Cir. April 26, 2013) (available here).  Here is the rest of the first paragraph, as well as an interesting extra little part of the story from the final section of the Washington opinion (cites omitted):

In this appeal we decide whether the government presented sufficient evidence that 250 or more persons or entities were victimized by the fraud scheme in which Gary Washington participated.  Because the government failed to put on any evidence that there were 250 or more victims, we vacate Mr. Washington’s sentence and remand for the district court to resentence Mr. Washington with a 2-level enhancement under U.S.S.G. § 2B1.1(b)(2)(A) rather than a 6-level enhancement under § 2B1.1(b)(2)(C)....

The government asks that it be allowed to prove on remand that there were 250 or more victims for whom Mr. Washington was responsible.  We decline the government’s request. Nothing prevented the government -- which was aware of Mr. Washington’s objection -- from putting on evidence concerning the number of victims at the sentencing hearing, and a party who bears the burden on a contested sentencing issue will generally not get to try again on remand if its evidence is found to be insufficient on appeal.  We have discretion to permit the government to present evidence at resentencing even though it amounts to giving the party a second bite at the apple.  But often a remand for further findings is inappropriate when the issue was before the district court and the parties had an opportunity to introduce relevant evidence, and here the government failed to present any evidence concerning the number of victims.

Current NRA president vocally supporting (liberal? conservative?) mandatory minimum sentencing reform in Oregon

David Keene, a former chairman of the American Conservative Union who is now serving as president of the National Rifle Association, has this notable new commentary piece in the Salem Statesman Journal promoting sentencing reform in the Beaver State. Here are excerpts:

If you are an Oregon conservative, I hope you’re asking the same question the state’s bipartisan Commission on Public Safety asked: “Are taxpayers getting the most from the money we spend on public safety?”  Oregon has been a leader in effective corrections policy and boasts one of the lowest recidivism rates in the nation.

But the state is trending in the wrong direction when it comes to corrections spending, and much of the growth is due to mandatory minimum sentences that violate conservative principles.

Oregon criminal justice agencies predict that the state’s prison population will grow significantly over the next 10 years, and that the growth will be composed mostly of nonviolent offenders. The expected inmate surge is projected to cost Oregon taxpayers $600 million, on top of the biennial corrections budget of $1.3 billion.

The time is ripe for comprehensive criminal justice reform — not only supported by Oregon conservatives, but led by Oregon conservatives.

We believe all government spending programs need to be put to the cost-benefit test, and criminal justice is no exception.  Oregon has done a good job with this in the past but is slipping, by locking up more offenders who could be held accountable with shorter sentences followed by more effective, less expensive local supervision programs....

As conservatives, we also believe that a key to protecting our freedom is maintaining the separation of powers between the branches of government.  Such protection is lost when so-called “mandatory minimum” sentences force the judicial branch to impose broad-brush responses to nuanced problems.  Mandatory minimums were adopted in response to the abuses of a few judges decades ago, but have proven a blunt, costly and constitutionally problematic one-size-fits-all solution begging for reform.

The commission’s recommendations make modest prospective changes to mandatory minimums under Measures 11 and 57.  These measures have given prosecutors unchecked power to determine sentences by way of charging decisions, regardless of the facts of the case, or the individual’s history and likelihood of re-offending.

The reform package now before the Legislature would restore the constitutional role of the courts for three of the 22 offenses covered by Measure 11. Judges could still impose the stiffest penalties where necessary, but would regain discretion in sentencing appropriate offenders to shorter prison terms or less expensive, more intensive community supervision.

These sensible reforms will restore some checks and balances between prosecutors and the courts, allow prison resources to be focused on serious violent offenders and let taxpayers know that their public safety dollars are being spent more wisely.

Colorado report documents significant costs of poor planning for sex offender sanctions

A helpful reader alerted me to this interesting new Denver Post piece headlined "Audit rips Colorado's lifetime-supervision sentence for sex offenders." Here are excerpts:

A 15-year-old state law that created a lifetime-supervision sentence for Colorado sex offenders provides insufficient treatment for many of the highest-risk inmates and has left thousands of others waiting for therapy in prison, according to a recent audit.

Demand for treatment in the Department of Corrections' Sex Offender Treatment and Monitoring Program greatly exceeds supply, the audit found.  Just one-sixth of inmates eligible to begin treatment are able to start the program each year — effectively keeping many sex offenders in prison indefinitely.

More than 1,000 inmates who are ready and waiting for treatment have passed their parole-eligibility dates, the auditors found. Their prolonged incarceration may be costing Colorado taxpayers as much as $30 million a year.

In a scathing audit given to corrections officials in February, Central Coast Clinical and Forensic Psychology Services Inc. also found the sex-offender program suffers from poorly qualified therapists and inappropriate levels of treatment given offenders.

"It's a disaster," said Laurie Kepros, who directs sexual-litigation cases for the Colorado public defender's office.  "Thousands of people are being told you have to have treatment to get out of prison" by a system failing to provide that treatment, she said. "We're paying for this every day."

Former Republican state Rep. Norma Anderson, who sponsored the 1998 law, said she recognizes the high cost of keeping many violent sex offenders in prison indefinitely and would like to see funding for treatment increased.  Still, "I'd rather have them there than out committing another sex crime," she said.  "I'm on the side of the victim and always will be."

Tom Clements, the state corrections chief who was killed March 19, had promised a swift response to the issues raised by the audit and fundamental changes to the sex-offender program in a March 8 letter to the legislative Joint Budget Committee.  Clements was shot to death at the door of his Monument home.  The suspected killer, Evan Ebel, was an inmate who had been released directly from solitary confinement to "intensive supervision" parole.

Clements' murder brought intense scrutiny to the state parole system because Ebel, paroled on robbery and related charges, had slipped off his ankle bracelet five days earlier.  Now, legislators say they also plan to scrutinize the sex-offender treatment program within the prisons — and the law that created potential lifetime sentences for sex offenses.

The law established indeterminate sentences — five years to life, for example — for many sex-offense crimes in Colorado.  Sex offenders who successfully complete a prison-treatment program and get paroled then enter a community-based lifetime-supervision program....

The number of Colorado inmates classified as sex offenders has grown from 21 percent to 26 percent of the total prison population in five years.  Much of the growth can be traced to the 1998 law. By 2012, more than 1,600 of the nearly 4,000 men classified as sex offenders in Colorado prisons were sentenced under the law.

The audit of the program was undertaken at the behest of state Rep. Claire Levy, a Boulder Democrat who serves on the Joint Budget Committee. She said it confirmed her longstanding concerns about the program's fairness and effectiveness. It affirmed that "low-risk sex offenders can be treated as effectively in the community," Levy said. "The lifetime-supervision law does not allow that."

The report described the state's sex-offender treatment program as "largely a one-size-fits-all program in which all treatment participants are generally expected to complete the same treatment exercises." This treatment occurs in groups that "are very large, often with 14 per group," the experts wrote.

The auditors reported that low-risk sex offenders in Colorado remain imprisoned at great cost, that the most dangerous offenders get too little attention and that nearly half the therapists they observed were "poor" — conducting group therapy sessions with behaviors "outside the range of what is acceptable for a therapist." In some cases, those therapists appeared bored and "sometimes expressed hostility," the authors reported.  "Therapists sometimes appeared demeaning and condescending, mocking their patients."

The state spends about $31,000 a year to keep a single person in prison. That's $30 million a year the state is spending unnecessarily if the prison system holds a thousand sex offenders who could be treated safely outside, said Kepros of the public defender's office....

The audit found Colorado prisons can yearly accept just 675 of 3,959 sex offenders who are within four years of parole eligibility, leaving 3,284 unable to participate in treatment. As a result, other sex offenders may be unable to get any treatment before their release "even if they present an exceptionally high risk" to the community, the audit said.  It noted that therapists and inmates alike described the treatment programs as "under-resourced," with little attention to individual needs and scant opportunity for private, individual therapy.

Arkansas Supreme Court explains what Miller ruling means now for Kuntrell Jackson

As reported in this AP piece, in a ruling today the Arkansas Supreme Court "ordered a new sentencing hearing for Kuntrell Jackson, whose case was one of two that led to a U.S. Supreme Court decision last year throwing out mandatory life sentences without parole for juveniles." The nine-page ruling in Jackson v. Norris, 2013 Ark. 175 (April 25, 2013) (available here), is an interesting read for a number of reasons.

First, this latest round of habeas litigation for  Kuntrell Jackson does not deal at all with any possible dispute over whether the Supreme Court's Miller ruling is to be given retroactive effect.  This may because it appears the prosecution did not contest Jackson's request to be resentencing in light of Miller, as evidence by this sentence from the opinion: "We agree with the State’s concession that Jackson is entitled to the benefit of the United State’s Supreme Court’s opinion in his own case.  See Yates v. Aiken, 484 U.S. 211, 218 (1988)."

Second, after parroting most of the key language from the SCOTUS Miller ruling, the Arkansas Supreme Court has an interesting discussion of how to revamp the sentencing provisions applicable to Kuntrell Jackson's conviction in the wake of Miller.  Here is how that discussion finishes:

We thus instruct the Mississippi County Circuit Court to hold a sentencing hearing where Jackson may present Miller evidence for consideration.  We further instruct that Jackson’s sentence must fall within the statutory discretionary sentencing range for a Class Y felony.  For a Class Y felony, the sentence is not a mandatory sentence of life imprisonment without parole, but instead a discretionary sentencing range of not less than ten years and not more than forty years, or life.  Ark. Code Ann. § 5-4-401(a)(1) (Repl. 1997).

Finally, we are mindful that Jackson argues that as a matter of Eighth Amendment law, and because of the unique circumstances of this case, he cannot be sentenced to life imprisonment. However, it is premature to consider whether a life sentence would be permissible given that a life sentence is only one of the options available on resentencing.

Notably, Jackson's crime took place in 1999, and I presume he has been in custody since his arrest. In other words, given that he has already served more than a decade in prison and that the Arkansas Supreme Court has decided he is now eligible for a sentence as low as 10 years, he could possibly upon resentencing get a term of only time served. Going forward, it will be interesting to see what sentence state prosecutors request and what sentence actually gets imposed on Jackson at his future resentencing.