Sentencing Law and Policy

"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.

"Can I Say I'm Sorry? Examining the Potential of an Apology Privilege in Criminal Law"

The title of this post is the title of this article by Michael Jones, which I just saw via SSRN. Here is the abstract:

This paper is written for the purpose of addressing the power and possibility of early apologies in the criminal justice system. As constructed, our criminal justice system rewards defendants that learn early in their case to remain silent, and punishes those that talk. Defendants that may want to offer an apology or allocution for the harm they’ve caused are often required to wait until a sentencing hearing, which may come months, or even years after the event in question.

This paper proposes that the Arizona Rules of Criminal Procedure be modified to provide an exception for apology to criminal defendants. Apologies can play an invaluable role in the healing process for victims, defendants, family members and others tied together by the unfortunate events of a criminal prosecution. This paper seeks to further the comprehensive law movement approach that promotes a healing process for those involved in the criminal justice system.

A prosecutor's potent perspective on Lafler?, Frye and the future of plea bargaining

I was pleased to learn about this interesting new commentary now appearing in the Houston Law Review’s online edition by Graham Polando, who is Deputy Prosecuting Attorney in Marshall County, Indiana.  The short and insightful piece is titled "Being Honest About Chance: Mitigating Lafler v. Cooper's Costs," and here is an excerpt from its first section:

What so exorcises prosecutors about Lafler, then, is that Cooper will get to have his cake and eat it too --—he got a shot at acquittal, then, that having failed, he will get the original plea offer the prosecutor designed, at least in part, to avoid that contingency.

The problem, then, is not one of resources (as Justice Alito contended), but of information.  Cooper received a look behind the veil of uncertainty provided by the trial and did not like what he saw.  Rather than an egg that cannot be unscrambled, this is a bell that cannot be unrung.

After Lafler, a prosecutor rightly worries, a defendant will be able to proceed to trial with the plea offer in his pocket, forcing specific performance when counsel's advice to proceed turns out to be incorrect, as it must have been -- he was, after all, convicted!  Chief Justice Roberts himself noted this concern at oral argument: “"[I]f you're the defense counsel, the best thing for you to do is not communicate any plea offer you get, and then if your client is found guilty, then you can go back and say, oh by the way, I didn't tell you about this, and he gets a whole new trial."  As in other contexts, the defendant benefits from both his counsel's successes (by getting a favorable result) and failures (by obtaining relief).  The rational prosecutor might respond to Lafler, then, by eliminating plea offers altogether, or at least reducing them.

"Balancing the State and Federal Roles in Boston Bomber Case"

The title of this post is the headline of this new article via Stateline, and here are some excerpts that reinforce my sense that at least some Masschusetts officials are quite pleased the feds have taken over the initial prosecution in this case because of the availability of the death penalty:

It’s not clear that anyone in Massachusetts is objecting to a potential death sentence in the bombings that killed three and injured hundreds, and in fact, a bipartisan group of lawmakers filed a bill Tuesday to reinstate the death penalty.  “What if he were not going to be federally charged?” said Republican Rep. Shaunna O’Connell in an interview with the Boston Globe.  “In Massachusetts, there would be no death penalty for him.”

The federal interest in the case against Tsarnaev is national security and the so far, state and federal authorities are cooperating.  There’s no federalism ground for the state of Massachusetts to object to a death sentence, said Robert Chesney, a professor at the University of Texas School of Law, since the federal charge carries a federal death sentence.  The final decision on whether to seek the death penalty will be made by Attorney General Eric Holder.

Currently, the state does not plan to introduce state charges against Tsarnaev, said Jake Wark, press secretary for the Suffolk County district attorney who handles all violent crime in Boston.  Wark said that in the first few hours after the explosions near the finish line of the Boston Marathon, the Suffolk County District Attorney’s Office was responsible for the case and handled it like any triple murder investigation.  But after the call came from Washington late Monday afternoon, the district attorney’s office deferred to the United States Attorney’s Office to proceed with the terrorism investigation.

Gov. Deval Patrick has been silent on the issue since the bombings, but said in 2005, “The death penalty can never be made foolproof, it is not a deterrent, and the huge costs incurred in capital proceedings divert resources away from actually fighting and prosecuting crime.”

So far in the investigation, federal, state and local authorities have worked together nearly seamlessly.  David Laufman, a former federal prosecutor in the Eastern District of Virginia, said that is the result of 10 years of relationship building between the FBI and state and local law enforcement.  In Boston, the joint terrorism task force, headed by the U.S. Department of Justice and FBI but also staffed with state and local officers, is taking the lead in the investigation.

“The FBI took some lumps in the 9/11 era for big-footing state and local law enforcement in national security and in other cases,” said Laufman, “but the FBI’s made a concerted effort to improve state and local relationships and now there are much better working relationships for the FBI to work in cases like this.”

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?

Justice Safety Valve Act gets bipartisan introduction in House of Representatives

A helpful media members forwarded me a press release which provided the basis for this notable federal sentencing news from inside the Beltway:

Rep. Robert C. “Bobby” Scott, D-VA, and Rep. Thomas Massie, a Republican from Kentucky, today introduced the bipartisan Justice Safety Valve Act of 2013, which would give federal judges the flexibility to issue sentences below mandatory minimums.

Republican Sen. Rand Paul of Kentucky and Sen. Patrick Leahy, a Democrat from Vermont and chairman of the Senate Judiciary Committee, had previously introduced a Senate version of the bill on March 20.

Scott said that mandatory minimum sentences have been shown to mandate unjust results.  “They have a racially discriminatory impact, studies conclude that they waste the taxpayer’s money, and they often violate common sense,” he said.

Massie added that the one size fits all approach of federally mandated minimums does not give local judges the latitude they need to ensure that punishments fit the crimes. “As a result, nonviolent offenders are sometimes given excessive sentences,” Massie said. ”Furthermore, public safety can be compromised because violent offenders are released from our nation’s overcrowded prisons to make room for nonviolent offenders,” he said.

Now that there is bipartisan support in both houses of Congress for the Justice Safety Valve Act of 2013 (Senate story covered here), we finally have the foundation and the opportunity to find out if President Obama and his Department of Justice are prepared to start walking the walk (instead of just talking the talk) about the need for cost-conscious, data-driven modern federal sentencing reforms.  importantly, the Justice Safety Valve Act of 2013 is a big deal in the formal law which would really not be that big deal in actual practice: the law essentially provides that now-mandatory minimum statutory sentencing terms would be presumptive minimum sentencing provisions for federal judges (which, of course, has always been their status for federal prosecutors, who have charging/bargaining powers that can allow them to take mandatory off the table when it suits their interests).

Especially in the early part of a second term, with federal criminal justice actors dealing with budget cuts and furloughs, and with most Americans pleased with the possibility of federal charges in Boston including a (discretionary) death sentencing system, now is the time for President Obama to finally live up to his 2007 campaign promise at Howard university (covered here) to "review mandatory minimum drug sentencing to see where we can be smarter on crime and reduce the blind and counterproductive warehousing of non-violent offenders."  If not now, when?  And if not with support of the Justice Safety Valve Act of 2013, how?

Less than three weeks ago, Attorny General Holder stated forcefully in a big speech (covered here) that, in the United States today, "too many people go to too many prisons for far too long for no good law enforcement reason." In that same speech, AG Holder stated plainly: "Statutes passed by legislatures that mandate sentences, irrespective of the unique facts of an individual case, too often bear no relation to the conduct at issue, breed disrespect for the system, and are ultimately counterproductive." The Justice Safetly Valve Act of 2013 could and would (especially if made retroactive) directly and perhaps profoundly address these issues in the federal sentencing system via one simple bill.

If President Obama and AG Holder really mean what they say and say what they really mean, we should expect press releases coming from the Department of Justice and the White House putting the force force and weight of the Obama Administration behind the Justice Safetly Valve Act of 2013 and urging its passage ASAP.  But I fear that we will not be seeing such a press release in the near future -- that worrisome reality will, in turn, lead me again to my growing concern that the Obama Administration's persistent failure to champion badly needed sentencing reforms will become its most lasting federal criminal justice legacy.

Some recent and older related posts:

• Rand Paul begins forceful pitch in campaign against federal mandatory minimums
• Potent new quote from AG Eric Holder: "Too many people go to too many prisons for far too long for no good law enforcement reason"
• "Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"
• "Right on Crime: The Conservative Case for Reform" officially launches
• "NAACP, right-wing foes get friendly" when it comes to prison costs
• "Conservatives latch onto prison reform"
• NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)

Eighth Circuit panel discusses of public trial rights at sentencing

A panel of the Eighth Circuit provides a pair of interesting opinions in US v. Thompson, No. 12-1673 (8th Cir. April 23, 2013) (available here), concerning the rarely litigated issue of whether a defendant's right to a public trial extends to sentencing.  Here is a snippet from the majority opinion:

In light of the First Amendment public trial access jurisprudence, the emphasis by the Supreme Court that the right was created specifically for the benefit of the accused, the Supreme Court's reminder regarding the critical nature of sentencing hearings themselves, and, most importantly, our conclusion that public access at a sentencing hearing plays a significant positive role in its functioning and furthers the benefits sought to be afforded the accused under the Sixth Amendment, we hold that the Sixth Amendment right to public access attaches at sentencing.  Accordingly, we move on to determine whether the district court, in this instance, violated that right....

In this case, the district court, noting the absence of press representation at the proceeding, reviewed its possible alternatives and cleared Thompson's family from the courtroom during Campbell's testimony, a partial closure.  From the record, it is clear that Thompson's family members were the only people in the gallery who were not court staff. And, even though the district court did not make a thorough record articulating the substantial reason it contemplated prior to its partial closure, the record is sufficient for this court, on appeal, to do so.  Having made such a review, we find no abuse of discretion by the district court.

Judge Gruender authored an extended and very interesting concurring opinion, which gets started this way:

I write separately because although I would affirm the district court’s decision to order a partial closure, I would recognize Thompson’s constitutional right to a public sentencing under the Fifth Amendment, rather than the Sixth.

Georgia now has permission, but not needed pentobarbital, for executing Warren Hill

The saga surrounding Georgia's efforts to carry out the punishment of death for a Warren Hill, now more than two decades after his second murder, moved forward yesterday after a big split panel ruling by the Eleventh Circuit.  This Atlanta Journal Constitution article, headlined "Court lifts execution stay; state out of lethal-injection drugs," explains the panel ruling, while also highlights why this long-running death penalty drama seems unlikely to end anytime soon:

The federal appeals court in Atlanta has denied Warren Hill’s bid to halt his execution on grounds he is mentally retarded at a time when the state finds itself out of lethal-injection drugs. 

By a 2-1 vote, the 11th U.S. Circuit Court of Appeals said Hill’s mental retardation claims had already been considered and rejected.  The court also said that because Hill only challenged his eligibility for execution, and not his conviction of murder, it could not consider his new claims.

The court lifted its stay of execution, meaning the state can set a new execution date for Hill at anytime.  But the Georgia Department of Corrections is currently out of pentobarbital, a barbiturate used as the state’s sole lethal-injection drug.  “At this time, we are looking into the procurement of the drug,” agency spokeswoman Gwendolyn Hogan said in an email.

Hill’s case attracted international attention this year when three state experts, who previously testified Hill was faking his mental disability, came forward and said they had been mistaken.  The doctors — two psychiatrists and a psychologist — described their evaluations of Hill more than a decade ago as rush jobs and said an improved scientific understanding of mental retardation led them to now believe Hill is mildly mentally retarded.

In 1988, Georgia became the first state to ban executions of the mentally retarded; the U.S. Supreme Court declared the practice unconstitutional nationwide in 2002.

Judge Rosemary Barkett issued a stinging dissent, saying there is now “no question” that Georgia will be executing a mentally retarded man.  She noted that all seven mental health experts — the state’s and Hill’s — who have examined Hill now unanimously agree he is mentally retarded.   “The idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible for a country that not only prides itself on having the quintessential system of justice but attempts to export it to the world as a model of fairness,” she wrote.

Hill’s lawyer, Brian Kammer, said he was “deeply disappointed” that the 11th Circuit “found that procedural barriers prevent them from considering the compelling new evidence.”  He said it is likely he will ask the U.S. Supreme Court to consider Hill’s claims....

Hill was sentenced to death for killing Joseph Handspike, an inmate serving a life sentence in the same state prison where Hill was incarcerated.  In 1990, Hill bludgeoned Handspike to death with a nail-studded wooden board.  At the time, Hill was already serving a life sentence for killing his 18-year-old girlfriend, Myra Wright, by shooting her 11 times in 1986.

The full 69-page split panel ruling in In re Hill,  No. 13-10702 (11th Cir. April 22, 2012), is available at this link.

SCOTUS holds "social sharing" of a little pot not an "aggravated felony" under INA

In a 7-2 opinion handed down this morning in Moncrieffe v. Holder (available here), the Supreme Court explains why a low-level marijuana offense does not automatically mean deportation. Here is the first and last paragraph of the majority opinion (per Justice Sotomayor):

The Immigration and Nationality Act (INA), 66 Stat. 163, 8 U. S. C. §1101 et seq., provides that a noncitizen who has been convicted of an “aggravated felony” may be deported from this country.  The INA also prohibits the Attorney General from granting discretionary relief from removal to an aggravated felon, no matter how compelling his case.  Among the crimes that are classified as aggravated felonies, and thus lead to these harsh consequences, are illicit drug trafficking offenses.  We must decide whether this category includes a state criminal statute that extends to the social sharing of a small amount of marijuana.  We hold it does not....

This is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as “illicit trafficking in a controlled substance,” and thus an “aggravated felony.”  Once again we hold that the Government’s approach defies “the ‘commonsense conception’” of these terms.  Carachuri-Rosendo, 560 U.S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S., at 53).  Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, “does not fit easily into the ‘everyday understanding’” of “trafficking,” which “‘ordinarily . . . means some sort of commercial dealing.’”  Carachuri-Rosendo, 560 U.S., at ___ (slip op., at 9) (quoting Lopez, 549 U.S., at 53–54).  Nor is it sensible that a state statute that criminalizes conduct that the CSA treats as a misdemeanor should be designated an “aggravated felony.”  We hold that it may not be.  If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggravated felony under the INA.  The contrary judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

Justices Thomas and Alito both authored separate dissents, though neither garner any companion votes.

Does Boston bombing provide still more support for my federal-only death penalty perspective?

As long-time readers know, I like to describe myself a "death-penalty agnostic" concerning the theoretical and empirical arguments that traditionally surround the the criminal punishment of death.  But while I have long been uncertain about the "meta" arguments for and against capital punishment, as a matter of modern US policy and procedures I have a firm and distinctive view: given (1) persistent public/democratic support for death as a possible punishment for the "worst of the worst," and given (2) persistent evidence that states struggle in lots of ways for lots of reasons with the fair and effective administration of capital punishment, I believe that (1+2=3) as a policy and practical matter we ought to consider and embrace an exclusively federal death penalty.

Regular readers have seen and surely remember various prior post in which I have talked through this idea a bit, and I have linked some of these posts below.  But, as the title of this post is meant to highlight, I think the soundness and wisdom of my distinctive view on the best modern way to administer capital punishment in the United States is now on full display in the wake of the Boston bombings. 

Massachusetts, of course, does not have death as an available punishment.  And yet, I have already seen reports of many local and state officials (not to mention Massachusetts citizens) who now say they are open to (if not eager to) have the bombing suspect(s) prosecuted in federal court in part because federal law includes the possibility of the death penalty.  Moreover, there is every reason to view terror bombings like these, whether or not they have direct international connections and implications, as the kinds of crimes that ought to be investigated and prosecuted primarily by national authorities (assisted, of course, by state and local official and agents).

Stated in slightly different terms and with the events in Boston now making these ideas especially salient and timely, I believe that essentially by definition in our modern globally-wired and national-media-saturated American society (1) every potential "worst of the worst" murder is of national (and not just local) concern, and (2) every potential "worst of the worst" murder merits the potential involvement of federal investigators, and (3) federal authorities have constitutional and practical reasons for wanting or needing to be the primary "deciders" concerning the investigation and prosecution of every potential "worst of the worst" murder, and (4) state and local officials typically will welcome being able to "federalize" any potential "worst of the worst" murder, and thus (1+2+3+4=5) we should just make death a punishment only available at the federal level so that the feds know they can and should get involved if (and only when?) federal interests and/or the value of cooperative federalism are implicated by any potential "worst of the worst" murder.

Lots of (mostly older) related posts on the federal death penalty:

• The federalization of the death penalty
• More support for an exclusively federal death penalty
• Context-free ruminations on the federal death penalty
• Debating the death penalty as bargaining chip
• Research on capital punishment's impact on plea deals
• Another example of the death penalty as an effective plea bargaining tool
• Great new (though still dated) examination of the death penalty and plea bargaining
• A poster child for the (federal) death penalty?
• The federal law gap in the NJ death penalty report
• The federal death penalty in America's paradise
• The federal death penalty in NY and elsewhere
• Ashcroft's death penalty "legacy"
• Wondering about the state and fate of the federal death penalty
• "Cruel and Unusual Federal Punishments"
• Split Sixth Circuit reverses federal death sentence on interesting grounds
• "The Racial Geography of the Federal Death Penalty"
• Federal prosecutor in Western NY (wisely?) recommending lots of capital prosecutions
• Making the case for the use of the federal death penalty
• Notable commentary on "Christopher Dorner and the California Death Penalty"

UPDATE:  This new DOJ press release reports on the initial charges brought against the surviving Boston bomber.  Here is how the release starts:

Attorney General Eric Holder announced today that Dzhokhar A. Tsarnaev, 19, a U.S. citizen and resident of Cambridge, Mass., has been charged with using a weapon of mass destruction against persons and property at the Boston Marathon on April 15, 2013, resulting in the death of three people and injuries to more than 200 people.

In a criminal complaint unsealed today in U.S. District Court for the District of Massachusetts, Tsarnaev is specifically charged with one count of using and conspiring to use a weapon of mass destruction (namely, an improvised explosive device or IED) against persons and property within the United States resulting in death, and one count of malicious destruction of property by means of an explosive device resulting in death.   The statutory charges authorize a penalty, upon conviction, of death or imprisonment for life or any term of years.  Tsarnaev had his initial court appearance today from his hospital room.

Notable civil rights action victory for Iowa sex offenders subject to civil confinement

Because sex offenders rarely get court victories concerning impositions on their civil rights, I found noteworthy today's panel ruling in the Eighth Circuit in Arnzen v. Palmer, No. 12-3634 (8th Cir. April 2013) (available here). Here is how the opinion starts:

Patients at the Iowa Civil Commitment Unit for Sex Offenders (CCUSO) filed a complaint under 42 U.S.C. § 1983 challenging the placement of video cameras in CCUSO restrooms, and moved for a preliminary injunction to stop their use. The district court denied the motion as to cameras in the "dormitory style restrooms" (restrooms with multiple toilets, showers and sinks) but granted a preliminary injunction ordering that cameras in the "traditional style bathrooms" (bathrooms with a single toilet, sink, and shower) be pointed at the ceiling or covered with a lens cap. The administrators of CCUSO appeal and we affirm.