Thursday, December 26, 2013
Extending Graham and Miller, Massachusetts SJC bars LWOP for all juve offenders
Thanks to this Christmas night post at How Appealing, I just discovered that on Christmas eve the Supreme Judicial Court of Massachusetts issued two big related rulings (available here and here) which not only held that the Supreme Court's Miller ruling is to be applied retroactively but also that "all life-without-parole sentences for juvenile offenders, whether mandatory or discretionary, violate art. 26 of the Massachusetts Declaration of Rights." Because I am on the road today, I will not have the chance to consume this significant rulings fully, but I can here link to and quote from this lengthy report on the rulings from the Boston Globe:
The state’s highest court struck down life sentences without parole for juveniles on Tuesday, saying scientific research shows that lifelong imprisonment for youths is cruel and unusual because their brains are “not fully developed.”
The Massachusetts Supreme Judicial Court decision is retroactive, meaning that, as one example, John Odgren, the suburban special needs student who stabbed 15-year-old James F. Alenson in the bathroom at Lincoln-Sudbury Regional High School on Jan. 19, 2007, and received a mandatory life sentence, now could have a chance of parole one day.
“We are very hopeful that the parole board is going to examine these kids’ lives carefully and will be giving them a real meaningful opportunity for release,” said Patty Garin, Odgren’s attorney. But some district attorneys said they were concerned about the ruling and would argue against parole in some cases.
The decision is a marked reversal for Massachusetts, where juveniles found guilty of murder have faced some of the harshest laws in the nation. The decision also is notable for its reliance on the growing field of research into the juvenile brain.
“Simply put, because the brain of a juvenile is not fully developed, either structurally or functionally, by the age of eighteen, a judge cannot find with confidence that a particular offender, at that point in time, is irretrievably depraved,” the court wrote. “Therefore, it follows that the judge cannot ascertain, with any reasonable degree of certainty, whether imposition of this most severe punishment is warranted.”...
The ruling goes farther than the Supreme Court decision in 2012 that struck down automatic sentences of life without parole for juveniles.... Because the Massachusetts high court’s decision is retroactive, prisoners sentenced as juveniles will “at the appropriate time” be afforded a parole hearing.
Lawyers said such inmates will have to have served at least 15 years before being considered for parole. There are currently 63 inmates in Massachusetts who were sentenced when they were juveniles to life sentences without the possibility of parole for first-degree murder....
The decision drew immediate praise from Governor Deval Patrick, who in September signed legislation that raises the age of juvenile jurisdiction from 17 to 18 and has pushed to reduce the number of teenagers sentenced to life without the possibility of parole. “I applaud today’s Supreme Judicial Court’s ruling,” the governor said in a statement. “Young people, even ones who commit terrible crimes, are developmentally and now constitutionally different from adults. Our SJC has wisely held that, while violent felons will be held accountable, youthful ones deserve every opportunity for rehabilitation.”
Some district attorneys questioned the decision. Essex District Attorney Jonathan W. Blodgett said the ruling will strip away the closure that victims’ families believed they had gained. “I am concerned for families who thought they had finality about their loved ones being murdered,” said Blodgett, who is president of the Massachusetts District Attorneys Association. “Now they have to go through these parole hearings.”
Suffolk District Attorney Daniel F. Conley said in a statement, “We are mindful of the literature on young adults’ brain development, and we already exercise great discretion in charging juveniles with murder. But we’re also keenly aware of the cases at issue here. Some fact patterns demand life imprisonment. Some defendants do not deserve parole. We will argue — as often and as forcefully as necessary — against parole in those cases.”
For years, Massachusetts has had some of the most punitive penalties in the country for juvenile offenders convicted of murder. Two decades ago a series of brutal murders galvanized public demands for harsher penalties. In 1996, legislators responded with a law that mandated that juveniles 14 years and older charged with murder be tried as adults.
Because Massachusetts’ penalties for first-degree murder is mandatory life without parole juveniles found guilty of that crime faced a lifetime of incarceration. As a result, Massachusetts became a leader in the number of youths facing life sentences without parole.
As of last year, the majority of youth with such sentences were concentrated in Massachusetts and four other states: California, Louisiana, Michigan, and Pennsylvania, according to the Campaign for the Fair Sentencing of Youth. “People thought if we have an extreme response, kids would stop doing bad things, and that has not turned out to be true,” said Naoka Carey, executive director of Citizens for Juvenile Justice, a nonprofit based in Massachusetts.
Carey said the SJC ruling brings Massachusetts back to the middle — she noted that other states that have abolished life without parole for juveniles include Wyoming, Colorado, and Texas. “We’re in some conservative company,” she said.
State legislative leaders said they plan to move quickly to overhaul juvenile sentencing laws that might conflict with Tuesday’s ruling. “The legislation currently pending that require the eradication of such sentences will be fast-tracked to ensure constitutional compliance with the ruling of the SJC,” said Representative Eugene L. O’Flaherty, a Chelsea Democrat who is the House chairman of the Judiciary Committee. Carey said there are currently a number of legislative options, but that any law will have to give meaningful opportunity for parole.
The SJC’s ruling came in the case of Gregory Diatchenko, who was 17 in 1981 when he murdered a man in a car in Kenmore Square. He has been in prison for more than three decades. The court ruled that he was eligible to be considered for parole immediately....
“I’m happy that Gregory Diatchenko is going to have a meaningful opportunity for release, which he deserves. He’s a living embodiment of what the [Supreme Court] case was all about. He does not deserve to die in prison. He’s not who he was when he was 17,” said Benjamin Keehn, Diatchenko’s attorney. Keehn was on his way to see his client at MCI Norfolk on Tuesday to relay the news. He said his client is 49 years old, two credits shy of a bachelors degree, and has been a Buddhist for over 10 years.
The court also ruled in the separate case of Marquise Brown, who was convicted of first-degree murder in a 2009 slaying. He has not been sentenced. The court ruled that because Brown was 17 at the time of his crime, he cannot be sentenced to life without parole.
The Diatchenko ruling was unanimous. In a concurring opinion, Justices Ralph Gants, Barbara Lenk, and Fernande R.V. Duffly, emphasized that defendants need to have a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” They urged that decisions on parole be informed by an attention to the “distinctive attributes of youth.
December 26, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack
Wednesday, December 25, 2013
Controversial Montana judge adds notable writing requirement to max sentence for assault
As reported in this Los Angeles Times article, headlined "Judge sentences man to write 'boys do not hit girls' 5,000 times," a Montana judge who made headlines for a lenient sentence in a rape case is now making news with a novel sentence in an assault case. Here are the details:
The Montana judge who sparked ire by sentencing a former teacher to 30 days in jail for the rape of a 14-year-old girl has ordered a man convicted of punching his girlfriend to write “Boys do not hit girls,” 5,000 times.
District Judge G. Todd Baugh, whose actions in the rape case sparked a national furor and a petition drive to have state officials take disciplinary action, sentenced Pace Anthony Ferguson on Monday to the writing exercise, in addition to six months in jail, for fracturing the woman’s face in three places during an August 2012 argument. Ferguson, 27, also was ordered to pay $3,800 in medical bills that came as a result of the woman's injuries.
Baugh told Ferguson to number the list, 1 through 5,000, sign it and mail it to him by May 23, according to the Billings Gazette. The six months in county jail is the maximum allowed sentence for the misdemeanor assault.
Ferguson made two appearances in court on Monday. After being sentenced by Baugh, Ferguson appeared before District Judge Gregory R. Todd for a disposition hearing. The judge ruled that Ferguson had violated the terms of his release from prison after a 2003 robbery conviction and ordered the man to spend eight years in state prison.
Monday, December 23, 2013
Isn't it crazy (and one reason for much dysfunction) that California does not have some kind of sentencing commission?
I have written a law review article emphasizing that the mere existence of a sentencing commission within a jurisdiction does not magically solve or even necessarily improve the development of sentencing and corrections laws and policies in that jurisdiction. Indeed, some might reasonably claim that in jurisdictions that have other agencies collecting system-wide data, a sentencing commission can become a costly luxury that may at times do more harm than good.
That all said, and as the question in the title of this post highlights, it strikes me as truly nuts that California has never created some kind of sentencing commission to assemble at least basic state-wide sentencing information. Indeed, given the huge mess that has long been California's massive sentencing and corrections system, and given the crisis-mode reforms and regulations imposed by judges and governors for decades now, I have to think any kind of sentencing commission in California would be able to improve matters in some way at least by being the go-to location for information about what the heck is even going on in the state on a range of sentencing and corrections issues.
These matters come to mind in reaction to this notable new article in the Sacramento Bee headlined "Sentencing commission, suggested in Sacramento, faces long odds." Here are excerpts:
Key California lawmakers this summer suggested that a commission to review and overhaul criminal sentences not only could bring coherence to a disjointed system but also perhaps ease chronic prison overcrowding in the long term. But the idea now appears stalled, despite the incentive of federal litigation that could force Gov. Jerry Brown to release as many as 10,000 inmates next spring.
Lawmakers chastened by a history of unsuccessful sentencing commission bills hold out little hope that this time could be different. “These issues are hard,” Sen. President Pro Tem Darrell Steinberg, D-Sacramento, said in an interview last week. “They’re hard to bite off politically.”
The notion of a panel to overhaul California’s penal code has percolated for decades but eluded proponents time and again. Supporters argue that a steady accumulation of different regulations, layered on top of one another over time, has led to a labyrinth of sentencing guidelines. “There is a lot of disproportionate punishment in our penal code, and that’s because not uncommonly a horrible crime may be committed in someone’s district and so the response is legislatively to get tougher,” said Sen. Mark Leno, D-San Francisco. “These are emotional issues,” he added, “and to have politics infused in all of our decision-making does not create the most sound public policy.”
State sentencing commissions are typically independent bodies, appointed by officials, that study a state’s galaxy of sentencing laws and condense them into a comprehensive framework. They issue guidelines that would increase or decrease sentences for various categories of crimes. That troubles some law enforcement leaders who see the potential for weakened sentences. And it rattles lawmakers wary about constituents – or future electoral opponents – who could hold them responsible for changes that emanated from an unelected body.
“No legislative body wants to give up power,” said Rep. Karen Bass, D-Los Angeles, a former Assembly speaker who pursued a sentencing commission during her time in the Legislature.
Historically, the state’s law enforcement community has been hostile to allowing appointed entities to dictate consequences for crimes. District attorneys, sheriffs and police chiefs have opposed past efforts, raising concerns about who would sit on panels with expansive authority to reshape criminal justice. “In California, the only times sentencing commissions come up, it has been code for sentence reductions,” said Sacramento County District Attorney Jan Scully.
But the idea resurfaced this summer when Gov. Jerry Brown, seeking to satisfy a federal order to reduce California’s prison population without resorting to more early releases, proposed spending an additional $315 million to provide more cells. Steinberg broke with the governor, rallying Senate Democrats behind an alternate plan that questioned expanded capacity.
Among other provisions, Steinberg’s blueprint included a detailed plan for immediately creating an 18-member sentencing commission that could provide recommendations by the end of 2014. A letter to Brown argued that “short-term fixes provide no sustainable remedy.” Steinberg’s letter said the panel would make recommendations aimed at “long-term prison capacity, staying within the (prison capacity) cap, including changes in criminal sentencing and evidence-based programming for criminal offenders.” He included private poll results that showed nearly three-fourths of Californians supported a panel “to streamline California’s criminal statutes with the goal of safely reducing prison costs and maximizing public safety.”
But by summer’s end, the governor got his cash infusion. The final bill also created a special corrections policy committee tasked with broadly examining criminal justice in California. Last week, Steinberg called sentencing reform “a key piece” of rethinking the state’s criminal justice system. But he expressed doubt that substantial changes would materialize in the coming legislative session....
This session, Leno carried his second consecutive bill easing penalties for simple drug possession. Brown vetoed it. Part of Leno’s argument emphasized the state’s uneven sentencing statutes, which make possession of cocaine a felony but allow possession of Ecstasy or methamphetamine to be charged as misdemeanors. Leno cited such inconsistencies in arguing that the sentencing commission is “an idea whose time has come,” adding that the state’s struggles to reduce its prison population “only underscores the need for it.”...
Past sentencing commission efforts have self-destructed because the panel’s recommendations, though subject to legislative approval, would have carried the force of law, argued Sen. Loni Hancock, D-Berkeley. By contrast, Steinberg proposed a purely advisory body.
After seeing previous resentencing campaigns stymied, Hancock said an advisory commission may be the only tenable approach. Even if a commission’s recommendations remain just that, Hancock said she would push to see them implemented. “It’s just so important to cast some rational light on what goes on with our sentencing that I would be happy to see one that makes discretionary recommendations,” Hancock said.
I am pleased to hear there is talk of making a sentencing commission advisory in California because that should be one key to making such an entity a viable reality. But, were I a lawmaker in California, my proposal for a CA sentencing commission would be for the entire voting body of any such commission to be staffed only with district attorneys, sheriffs and police chiefs and for these folks on the CA commission to always have a majority of voting members. In that way, it should and could be clear that having a CA sentencing commission would not be code for sentence reductions but rather just a means for seeking greater sentencing rationality and information as defined by those very state actors elected and most responsible to the voters for seeking to ensure public safety and sensible use of tax resources to that end.
Friday, December 20, 2013
New Sentencing Project policy brief on drug-free zones
I just received an e-mail promoting this new briefing paper from The Sentencing Project titled Drug-Free Zone Laws: An Overview of State Policies. Here is how the paper starts:
The premise behind drug-free zone laws was that drug trafficking near schools posed a danger to children. In order to protect children from drug activity, lawmakers established protected zones around the places where children were most likely to be present, including schools and public parks. Individuals caught using or selling drugs within the protected zone faced substantially higher penalties than others who engaged in the same conduct outside the zone.
The application of drug-free school zone laws has proved problematic for several reasons:
• First, in the sentencing schemes of several states defendants may face two distinct penalties for a single offense.
• Second, the laws are frequently drafted so broadly that they result in enhanced penalties for drug offenses that are a substantial distance from a school, that do not involve school children in the offense, or take place outside of school hours. In Alabama, for example, a drug sale that takes place as much as three miles from a school, college, or public housing project is subject to a mandatory five-year prison term.
• Third, because protected areas are clustered within urban, high-density population areas, the zones disproportionately affect people of color and economically disadvantaged citizens.
In recent years, these problems have led at least seven states, including Connecticut, Delaware, Indiana, Kentucky, Massachusetts, New Jersey, and South Carolina, to reform their drug-free zone laws. This briefing paper provides an overview of these statutes nationally and an assessment of reform activity in recent years.
"Sentencing Juveniles: Eliminate the Bright-Line Rule of Majority"
The title of this post is the title of this new article by Katie Ryan Van Camp just now appearing on SSRN. Here is the abstract:
The United States Supreme Court’s often stated view that “death is different” has led to a line of decisions in which the Court carved out categorical Eighth Amendment exceptions for certain groups. These cases hold that courts should not give the death penalty to individuals within those groups. In Atkins v. Virginia, for example, the leading case within the “death is different” line, the Court held that the death penalty was not an appropriate punishment for mentally retarded offenders because it constituted cruel and unusual punishment in violation of the Eighth Amendment. The Court continued to carve out exceptions for certain groups including juveniles.
Then the Court’s view regarding the Eighth Amendment’s prohibition against cruel and unusual punishment evolved. No longer was “death” the only “different;” now, juveniles could be considered “different.” Following Roper, in which the Court held that sentencing juveniles — those under the age of eighteen — to death constituted cruel and unusual punishment in violation of the Eighth Amendment, a line of cases emerged in which the Court continued to carve out more exceptions for juveniles.
In each of these landmark decisions, the Court has found that to be considered a juvenile, the individual must be under the age of majority. As found in Roper, and consistently followed in the other decisions within this line of cases, the age of majority is eighteen. Although the Court acknowledged that there are some juveniles under the age of majority who have attained a level of maturity “some adults will never reach” and “the qualities that distinguish juveniles from adults do not disappear when an individual turns 18,” the Court drew a line. Thus, the age of majority is a bright-line rule.
Heeding the Court’s own words, it should recognize that juveniles who are aged seventeen and those aged eighteen arguably are no different. Research also suggests this to be true. This article argues, therefore, that because of the uncertainty surrounding “juvenile” brain development and because the bright-line rule of majority prevents courts from determining if an individual under the age of eighteen, the age of majority, has the requisite culpability deserving of the categorically excluded punishments, the Court should eliminate the bright-line rule of majority. Further, although the majority of juveniles should not receive certain categorically excluded harsh punishments, a few should still receive those punishments, and it should be an option for all.
Part I of this article serves as background on the bright-line rule of majority and its application in “juveniles are different” cases. Part II of this article argues that the Court should eliminate the bright-line rule of majority. Part III of this article proposes a solution to the bright-line rule problem; that is, a case-by-case analysis should decide cases involving juveniles with age being another sentencing factor considered. Age will thus act as an aggravating or mitigating factor in the sentencing phase of the criminal proceeding. Finally, Part IV of this article explains why a case-by-case analysis considering age as a sentencing factor is better than a bright-line rule of majority and addresses the potential counter-arguments to this proposal.
Wednesday, December 18, 2013
"Plea Bargaining: Some Comparative Observations"
The title of this post is the title of this notable new (and notably short) piece providing a useful perspective on plea bargaining by Jacqueline Hodgson, a UK-affiliated author. Here is the abstract:
Plea and sentence bargaining is characterized by several general features that we might recognize as common across a range of jurisdictions and procedural traditions. It requires an admission of guilt from the accused; the accused is offered some reward, incentive or advantage, either in exchange for, or as a result of the plea; and there is some benefit to the criminal justice system -- typically the avoidance of a more lengthy and expensive contested trial. The point in the criminal process at which these negotiations are initiated, the personnel involved, and the relative incentives and benefits available will of course differ. In some instances, explicit bargains are struck between prosecutor and defense lawyer; in others, there is direct judicial involvement; and in others, the system benefit may operate as an implicit reward, without any explicit bargaining taking place.
Task force recommends broad changes to sentencing and corrections in Mississippi
As reported in this local article, headlined "Sweeping prison reforms suggested in Mississippi: More judicial discretion among proposals," there is now big talk about big reforms in The Magnolia State. Here are the details:
A criminal justice task force on Tuesday recommended sweeping reforms to reduce Mississippi’s soaring prison population and costs, standardize sentences and reduce recidivism. “This is the first time in my career — 32 years — that we have taken a comprehensive look at corrections in this state,” said Mississippi Department of Corrections Commissioner Chris Epps. “… We all know the cost of doing nothing.”
The recommendations include providing more discretion for judges to impose alternatives to prison and creating “true minimums” on when violent and nonviolent offenders are eligible for release. They also call for defining what constitutes violent crime — something officials said isn’t clear in state law. Proposals also include increasing the threshold from $500 to $1,000 for felony theft and lowering drug sentences for possession of small amounts while cracking down on large drug dealers.
Epps headed the bipartisan, 21-member task force of lawmakers, judges, prosecutors, law enforcement and defense attorneys. The group, after working for seven months with assistance from the Pew Charitable Trust’s Public Safety Performance Project, developed recommendations for the 2014 Legislature.
Gov. Phil Bryant, Lt. Gov. Tate Reeves, House Speaker pro tem Greg Snowden and others voiced their support for the proposal after the task force adopted it. The task force was created by a bill Snowden authored this year. Bryant said the reforms “put victims first,” protect public safety and provide “clarity of sentencing.” Reeves praised the recommendations as “evidence-based, data-driven, fiscally sound criminal justice reforms.”
While the nationwide trend has been lower prison population, Mississippi’s has skyrocketed since it passed some of the toughest “truth in sentencing” laws in the 1990s. The state now has more than 22,600 prisoners and the second-highest incarceration rate in the nation. Prison costs have risen from $276 million in 2003 to $361 million, with unchecked growth expected to result in 2,000 more inmates and cost taxpayers another $266 million over the next 10 years.
The state has attempted unsuccessfully to reduce prison costs with a patchwork of release policies that created confusion in sentencing and a disconnect between the judges/prosecutors and corrections. Uncertainty about how long convicts would serve helped push sentence lengths by 28 percent the last decade....
State Sen. Willie Simmons, D-Cleveland, said the proposed reforms are “historical,” and “create a better system as opposed to a build it (prisons) and they will come approach.”
Is there a real problem with animal cruelty federal sentences being way too short?
The question in the title of this post was my reaction to seeing this essay, titled "Vulnerable Victims: Increasing Animal Cruelty Sentences to Reflect Society's Understanding of the Value of Animal Lives," recently posted on SSRN. Authored by Adam Lamparello and Megan Boyd, here is the abstract for this essay:
More should be done to deter animal cruelty. Crush videos, which depict horrific acts of animal cruelty, should be banned. The advisory Guidelines range — as well as the five-year statutory maximum sentence for animal cruelty cases — should be substantially increased. Additionally, courts should continue to impose severe sentences upon those who subject animals to senseless and deadly violence. In so doing, the law will recognize the intrinsic value of animals as conscious, living creatures worthy of legal and constitutional protection.
Candidly, I am not sure I fully understand or approve why many or even any animal cruelty should be prosecuted in federal courts. Though I can imagine settings in which dog-fighting, cock-fighting and other inter-state economic activities based on animal abuse implicate important federal interests, the underlying animal cruelty strikes me as typically a distinctly local activity that ought generally (if not always) be prosecuted in local courts to better reflect local needs and interests. My sense is that there are lots of local variations on what is regarded as criminal treatment of animals (e.g., hunting pigeons in a New York City park likely will be viewed by the local community as much different than hunting pheasants in a South Dakota park). For such behavior, I always think local juries and local judges ought always be the primary, and perhaps the exclusive, assessors of criminality and what constitutes fair and effective punishment.
Tuesday, December 17, 2013
"We wish you 70 years in prison, we wish you 70 years in prison, and an unhappy new life"
The title of this post is inspired by this local sentencing story and the song I could imagine in some Texas jurors' heads as they decided to "celebrate" the holiday season by sentencing a woman with a notably long and ugly criminal record to a notably long and harsh prison term. The story is headlined "Parker County 'Grinch' Sentenced to 70 Years in Prison," and here are the details:
A woman known as the Christmas “Grinch” for stealing Christmas lights from a Parker County family’s home was sentenced to 70 years in prison on Friday after she was convicted of a separate burglary.
Dana Brock, 44, of Hurst, shook her head when the judge read the jury’s sentence. Prosecutors pushed for a long sentence because of her lengthy criminal record.
Brock gained notoriety in December 2012 when she was caught on surveillance video stealing Christmas lights from outside a family’s Aledo home while they were inside sleeping. She was arrested again in May after she stole a weed wacker and a power washer from another homeowner’s garage. She also was caught on video in that case.
"One of our deputies who responded out to this case and looked at the surveillance video at the homeowner's house saw her on the video and said, 'Hey, that's the Grinch,’” said assistant Parker County district attorney Jeff Swain. “He knew right away who it was." A jury deliberated just five minutes before convicting her on Thursday.
In the sentencing phase of her trial, prosecutors pointed to her long criminal history. Brock’s record dates to when she was a 17-year-old and was convicted in Arizona of solicitation to commit murder. Over the years she also was convicted of credit card abuse, injury to a child, theft, assault, and drug possession. Instead of two to 20 years in prison for burglary of a habitation, she faced 25 years to life under the "three strikes and you're out" law.
She shook her head as the judge read her 70-year sentence. "A 70-year sentence will knock the air out of your stomach,” said her attorney Raul Navarez. “She kept asking me, '70 years? Are you serious? 70 years?' Because 70 years is a pretty harsh sentence for this kind of a deal. And quite frankly, that's what I argued to the jury. But the jury decided and we have to respect that."
Navarez and prosecutors agree it didn't help her case when jurors saw the video of her stealing Christmas lights. "When you're known as the Christmas Grinch, people do remember you,” Swain said.
I am unsure whether Texas law ensures that this version of the grinch will have to serve most or nearly all of these 70 years in prison, though this defendant's lengthy record of not-so-petty crimes leads me to be less than too-sympathetic concerning her fate. That said, if she is really as smart as the "real" Grinch, she probably will be able to figure out some way to catch "affluenza" while serving her time in Texas prisons and thereafter convincingly claims at a parole hearing that her heart and her conscience managed to grow three sizes one day while she was incarcerated.
Monday, December 16, 2013
You be the disparity judge: very different prison sentences for (similar?) fruadsters in different courts
One reason I never fully understand nor fully appreciate very aggressive efforts to try reduce sentencing disparities is because I never fully understand nor fully appreciate whether and when very different sentences for somewhat similar crimes represents warranted or unwarranted disparities. And these two notable headlines reporting on two notable white-collar sentences imposed today in two different courtrooms have me thinking about these matters yet again:
Here, respectively, are the basics of the crimes and punishments in these two cases taken from the above-link press accounts, the first of which is a report from a state court in Ohio:
Bobby Thompson, convicted mastermind of a national veterans charity scam that bilked donors out of an estimated $100 million, was sentenced to 28 years in prison this morning by Cuyahoga County Common Pleas Judge Steven Gall. Thompson is a stolen identity used by John Donald Cody, 67, to set up the U.S. Navy Veterans Association, based in Tampa, which solicited donations in Ohio and 40 other states from 2002-2010.
Gall, who addressed Thompson as Mr. Cody, additionally levied a $6.3 million fine against Thompson, plus a $330,778 judgement to cover the cost of prosecution by the Ohio Attorney General. The judge said factors he considered in determining the sentence included the eight-year duration of Thompson's charity "charade," the amount of money swindled from donors, the efforts Thompson made to hide his identity, and Thompson's lack of remorse or acceptance of responsibility for his actions.
Citing the damage done to veterans who could have been aided by the money that Thompson's charity raised, Gall also ordered that Thompson spend each Veterans Day in solitary confinement for the duration of his prison term....
Prior to the sentencing Joseph Patituce, Thompson's attorney, had suggested a possible sentence of 14 years. After his client got twice that number, Patituce said Thompson still denies that he committed a crime and will appeal.... Patituce said Thompson's refusal to testify in the trial on his own behalf was pivotal. "If he would have testified the verdict would have been different," Patituce said.
Brad Tammaro, an assistant attorney general prosecuting the case, argued against Patituce's suggested 14-year sentence for Thompson, calling that sentence "totally inappropriate." Tammaro also said that "the evidence in the case demonstrates a complete lack of remorse" on the part of Thompson.
And now, from a federal court in Rhode Island:
A federal judge sentenced a Rhode Island lawyer to six years in prison Monday for his role in a $46 million investment fraud that preyed on terminally ill people, calling him the architect of the scheme and saying he didn't seem to recognize the harm he had caused.
Joseph Caramadre was sentenced in Providence after pleading guilty to wire fraud and conspiracy. His lawyers asked for two years in prison and two years in home confinement. Prosecutors sought 10 years. Judge William E. Smith also ordered Caramadre to perform 3,000 hours of community service to help the elderly and terminally ill. He put off the question of restitution because Caramadre's lawyer has objected to the amount.
Caramadre was a prominent lawyer and philanthropist. Prosecutors say he and former employee Raymour Radhakrishnan paid terminally ill people cash, passing it off as charity, then used their personal information to purchase bonds and annuities that would pay out when the person died.
Caramadre pleaded guilty last year but a few months later tried to withdraw his guilty plea. He testified during a hearing on that request that he had committed perjury when he pleaded guilty, prompting the judge to say at the time: "It's amazing to watch a defendant perjure himself by saying he committed perjury the first time." Smith turned down his request to withdraw his plea in May and ordered him immediately into custody.
On Monday, Caramadre stuck with his contention that the plea was a lie, telling the judge he could not say he was sorry for anything although he felt terrible if some terminally ill people felt the investment strategy was not explained to them. "I wish I could play the game," he said, referring to his lack of contrition.
Still, he said, he took responsibility for his guilty plea. Smith said Caramadre seemed to recognize that people were hurt but didn't seem to recognize that he was the one that hurt them.
To the extent I can understand these stories, it seems that many millions of dollars were lost in the fraud on veterans over many years, whereas apparently a lot less money was lost in the fraud on the terminally ill during a shorter period. Also, of course, one defendant was convicted after a lengthy (state) trial and the other was convicted after a (now regretted) federal plea.
Still, is there really any sound way for anyone to assess whether the huge disparity in these two fraud sentences imposed today, one of which is nearly five times as long as the others, are warranted or unwarranted? More broadly, does anyone think it problematic that one defendant was prosecuted in Ohio state court and thus subject to Ohio's sentencing laws that are much different than the other defendant was subject to as a result of his federal prosecution?
Saturday, December 14, 2013
"Freeing Morgan Freeman: Expanding Back-End Release Authority in American Prisons"
The title of this post is the title of this notable and important new piece by Frank Bowman now available via SSRN. Here is the abstract:
This article, written for a symposium hosted by the Wake Forest Journal of Law & Policy on “Finality in Sentencing,” makes four arguments, three general and one specific.
First, the United States incarcerates too many people for too long, and mechanisms for making prison sentences less “final” will allow the U.S. to make those sentences shorter, thus reducing the prison population surplus.
Second, even if one is agnostic about the overall size of the American prison population, it is difficult to deny that least some appreciable fraction of current inmates are serving more time than can reasonably be justified on either moral or utilitarian grounds, and therefore American criminal justice systems ought to adopt mechanisms for identifying both individuals and categories of prisoners whose terms should be shortened.
Third, it is impossible, or at least unwise, to try to make “final” decisions — at least good final decisions — about how long someone should spend in prison at the beginning of the prison term, at least if that term is supposed to be very long. Thus, in cases where a long sentence is imposed, one ought not make the initial, front-end, judicial sentencing decision “final,” but should instead create mechanisms for one or more later second looks.
After exploring these contentions, I conclude that discretionary early-release mechanisms should be restored where they have been abandoned, and reinvigorated where they have languished. In particular, I propose instituting a discretionary back-end release mechanism for some categories of both federal and state long-sentence prisoners and I explore the political and institutional difficulties of doing so.
December 14, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (12) | TrackBack
Friday, December 13, 2013
SCOTUS grants cert to clarify required intent for federal bank fraud
As reported in this SCOTUSblog post, the Supreme Court this afternoon granted cert on two cases, one of which involves the required mens rea for federal bank fraud charges. Here is part of Lyle Denniston's summary of the case now officially before the Justices:
The Supreme Court agreed on Friday to clarify ... the kind of proof prosecutors must offer to get a conviction for bank fraud under federal law.... The bank fraud case is Loughrin v. United States....
The newly granted case on federal bank fraud involves a man, Kevin Loughrin, who was sentenced to three years in prison for engaging in a scheme to steal bank checks from peoples’ mailboxes, altering them and then using the checks to buy things at retail stores like Target and Wal-Mart, and then returning the merchandise for cash.
Prosecutors charted him with violations of two provisions of bank fraud law: defrauding a financial institution, and obtaining money from financial institutions by fraud. Both were apparently based on evidence that the checks were drawn on Bank of American and Wells-Fargo Bank and on three credit unions.
Loughrin’s lawyers tried to have the jury told that, in order for him to be convicted on either count, there had to be proof that he intended to defraud a bank or other financial institution....
The Tenth Circuit Court rejected his challenge. Under the bank fraud provision on which he was convicted, the Circuit Court ruled, it was enough that Loughrin had sought to defraud someone else — the retail stores — but there was no need for prosecutors to offer evidence of intent to defraud a bank directly.
How can and should Ohio's justice system deal with merciful elderly aggravated murderer?
I suspect many folks engaged in debates over the wisdom of mandatory minimum sentencing provisions at least feel comfortable with the suggestion that persons convicted of first-degree murder ought to always be mandated to serve at least decades in prison. Indeed, many folks who advocate for the abolition of the death penalty do so by suggesting mandatory LWOP is the right alternative sentence for those deemed the worst kinds of killers under state homicide laws. Though lots of folks (myself included) are troubled by mandatory long prison terms for lower-level drug or gun offenses, lots of folks (myself included) are much less troubled by some mandatory prison requirements in the sentencing rules for how the justice system responds to the very worst intentional violent crimes.
But the provocative question in the title of this post is prompted by a sentencing story developing today in Ohio, which is explained in this AP report headlined "John Wise, attorney to seek clemency from governor in wife's hospital killing." Here are the details:
A man convicted of fatally shooting his ailing wife in her hospital bed will seek clemency from the governor after his sentencing Friday, even if the judge follows a prosecutor's recommendation for a lighter punishment because of the unique circumstances of the case.
John Wise, 68, has said he shot his debilitated wife out of love in August 2012 after she suffered an aneurysm and appeared to be in pain at an Akron hospital. Mercy is not a defense to a murder charge in Ohio. Wise, of Massillon, was convicted on charges including aggravated murder with a firearm specification, which could carry a life sentence.
Summit County Prosecutor Sherri Bevan Walsh called Wise's actions illegal and dangerous but said the case warrants sentencing leniency. She has recommended that Wise be sentenced on a lesser crime and get a six-year term. "In light of the unique facts of this case, a shorter prison sentence is just," she said in a statement.
Whatever the sentence, the defense will pursue clemency from the governor and "will be seeking public support from those who sympathize with John and this situation," defense attorney Paul Adamson said in an email.
Judge Mary Margaret Rowlands in Akron has told attorneys the sentence must fit within legal limits. Neither side found previous case law to support the prosecutor's suggestion that the judge could sentence Wise to six years behind bars for manslaughter, a charge that wasn't among the counts against him but is considered a lesser included offense, Adamson said.
With charges merged for sentencing, it's also possible Wise could get a six-year term if the prosecution asks the judge to sentence him for felonious assault, one of three charges on which he was convicted. April Wiesner, a spokeswoman for the prosecutor, wouldn't say Thursday whether the office intends to pursue that option.
As my first-year Crim Law students know well, "Aggravated Murder" is Ohio's term for first-degree murder and Ohio sentencing law expressly provides that "Whoever is convicted of or pleads guilty to aggravated murder in violation of section 2903.01 of the Revised Code shall suffer death or be imprisoned for life...." Consequently, I am not aware of a sound legal basis for the prosecutor or judge in this case to recommend or impose any sentence other than an LWOP term for the aggravated murder charge. I surmise that the local prosecutor here may be asking for the judge not to sentence on that charge or to have it reduced or dismissed in some way before sentencing.
Ironically, I think the defendant and his lawyer here might want the sentencing judge to feel compelled to impose LWOP and thereby heighten the argument for some kind of clemency relief from Gov. Kasich. If the defendant here gets "only" six years in prison, I suspect it would be much easier for the Governor to leave such a sentence in place and conclude that justice for this murderer has already been tempered by mercy. Indeed, I am inclined to think that the prosecutor here has decided only to seek a six-year prison term for an aggravated murderer because she hope to bring a function end to this case at sentencing today rather than have to deal with a compelling clemency case if John Wise were to get an LWOP sentence.
UPDATE: This new AP report indicates that this aggravated murderer somehow received a sentence of only six years' imprisonment, as prosecutors had recommended:
An Ohio man convicted of fatally shooting his ailing wife in her hospital bed was sentenced Friday to six years in prison and plans to seek clemency from the governor....
The sentence issued by Summit County Court of Common Pleas Judge Mary Margaret Rowlands was in line with prosecutors' recommendation that the Massillon man receive a lighter punishment than the minimum 23 years on his most serious conviction, an aggravated murder count.
Holding a cane and wearing a striped jail outfit, Wise remained seated during the hearing. He made a brief statement, choking up as he apologized to his family and his son. He also thanked the prosecutors and the court.
Prosecutors said the case warranted leniency, but they emphasized that Wise's actions were illegal. "It is not our intention to minimize what happened. You cannot bring a loaded gun into a hospital and shoot someone," Summit County Prosecutor Sherri Bevan Walsh said in a statement after the sentencing.
In court, Assistant Prosecutor Brian LoPrinzi told the judge: "We believe that although his motive may have been pure, he was wrong."
Wise's attorney, Paul Adamson, said they will pursue clemency from the governor and create an online petition for supporters to sign. He called the shooting "an aberrational act" for Wise. "I've never represented a finer man," Adamson told the judge. The prosecutor's office said it would oppose any reduction in Wise's punishment.
Among those at the sentencing was Liz Flaker, one of the jurors who convicted Wise after he pursued an insanity defense. She said the jurors, who deliberated for several hours, took two votes. The first was 9-3 in favor of conviction; the second was unanimous. "There was really no split, per se, but I think there were a couple of people that kind of wavered on ... thinking was he insane or was he not insane," Flaker said. "I think the way the law was written for the state of Ohio is a little bit hazy."
Prosecutors had recommended that Wise be sentenced to six years for manslaughter, a charge that wasn't among the counts against him but is considered a lesser included offense. After neither side found previous case law to support that unusual suggestion, the prosecution instead asked the judge to sentence Wise under his felonious assault conviction with a firearms specification, and the judge did so. Wise also was convicted of aggravated murder with a firearm specification and murder, which could have led to a life sentence.
Police say Wise calmly walked into the hospital room on Aug. 4, 2012, and shot his wife of 45 years at her bedside. She died the next day. Wise told police he intended to kill himself, too, but the weapon jammed.
December 13, 2013 in Clemency and Pardons, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack
Thursday, December 12, 2013
Brave New Death Penalty World: brain scans used to defeat death sentence
This new Wired piece, headlined "Did Brain Scans Just Save a Convicted Murderer From the Death Penalty?" suggests that defense lawyers in a recent federal capital trial devised another clever way to encourage jurors not to return a death verdict. Here are the basic details:
John McCluskey escaped from an Arizona prison in July, 2010. A few days later, he and two accomplices — one of whom was both his cousin and fiancee — carjacked Linda and Gary Haas, a vacationing Oklahoma couple in their 60s. McCluskey shot the Haases inside the camping trailer they were towing behind their truck, and set the trailer on fire with their bodies still inside. McCluskey was convicted for the carjacking and two murders in federal court on Oct. 7.
Yesterday the jury charged with deciding his sentence announced that it had been unable to come to a unanimous decision on the death penalty. That means he’ll get life without parole.
Perhaps it’s little wonder the jury couldn’t agree — they’d been given a lot to consider. McCluskey’s defense team had tried to convince them that he has several brain defects that, combined with other factors, contributed to his crimes and should be considered mitigating circumstances. The defense presented the results of several types of brain scans and various psychological tests, as well as testimony from neurologists and other experts....
In the sentencing phase of the trial, McCluskey’s lawyers argued that, as a result of his brain abnormalities — as well as a slew of other unfortunate circumstances ranging from a breech birth, to abuse as a child, to drug and alcohol addiction — he was incapable of “a level of intent sufficient to allow consideration of the death penalty.” Essentially, they argued that his acts were impulsive, that he would have been incapable of planning such things.
Texas tough means probation for teen who killed four and injured more while drunk driving?
The question in the title of this post is my reaction to this CNN report headlined "Texas teen Ethan Couch gets 10 years' probation for driving drunk, killing 4." Regular readers know that drunk driving is one notable crime that I fear is consistently under-punished throughout the United States, and the details of this story confirms my fear that elitism and a variety of other potentially pernicious factors may explain why. Here are the details:
To the families of the victims, Ethan Couch was a killer on the road, a drunken teenage driver who caused a crash that left four people dead.
To the defense, the youth is himself a victim -- of "affluenza," according to one psychologist -- the product of wealthy, privileged parents who never set limits for the boy.
To a judge, who sentenced Couch to 10 years' probation but no jail time, he's a defendant in need of treatment.
The decision disappointed prosecutors and stunned victims' family members, who say they feel that Couch got off too easy. Prosecutors had asked for the maximum of 20 years behind bars. "Let's face it. ... There needs to be some justice here," Eric Boyles, who lost his wife and daughter, told CNN's "Anderson Cooper 360" on Wednesday night.
"For 25 weeks, I've been going through a healing process. And so when the verdict came out, I mean, my immediate reaction is -- I'm back to week 1. We have accomplished nothing here. My healing process is out the window," he said.
Lawyers for Couch, 16, had argued that the teen's parents should share part of the blame for the crash because they never set limits for the boy and gave him everything he wanted. According to CNN affiliate WFAA, a psychologist called by the defense described Couch as a product of "affluenza." He reportedly testified that the teen's family felt wealth bought privilege, and that Couch's life could be turned around with one to two years of treatment and no contact with his parents.
Couch was sentenced by a juvenile court judge Tuesday. If he violates the terms of his probation, he could face up to 10 years of incarceration, according to a statement from the Tarrant County Criminal District Attorney's Office. Judge Jean Boyd told the court she would not release Couch to his parents, but would work to find the teen a long-term treatment facility.
"There are absolutely no consequences for what occurred that day," said Boyles. "The primary message has to absolutely be that money and privilege can't buy justice in this country." His wife, Hollie Boyles, and daughter, Shelby, left their home to help Breanna Mitchell, whose SUV had broken down. Brian Jennings, a youth pastor, was driving past and also stopped to help.
All four were killed when the teen's pickup plowed into the pedestrians. Couch's vehicle also struck a parked car, which then slid into another vehicle driving in the opposite direction. Two people riding in the bed of the teen's pickup were tossed in the crash and severely injured. One is no longer able to move or talk because of a brain injury, while the other suffered internal injuries and broken bones.
"There is nothing the judge could have done to lessen the suffering for any of those families," said defense attorney Scott Brown, CNN affiliate KTVT reported. "(The judge) fashioned a sentence that is going to keep Ethan under the thumb of the justice system for the next 10 years," he said. "And if Ethan doesn't do what he's supposed to do, if he has one misstep at all, then this judge, or an adult judge when he's transferred, can then incarcerate him."
Earlier on the night of the accident, June 15, Couch and some friends had stolen beer from a local Walmart. Three hours after the crash, tests showed he had a blood alcohol content of 0.24, three times the legal limit, according to the district attorney's office. "We are disappointed by the punishment assessed but have no power under the law to change or overturn it," said Assistant District Attorney Richard Alpert. "Our thoughts and prayers are with the families and we regret that this outcome has added to the pain and suffering they have endured."
It is very rare, but not impossible, for prosecutors to challenge the sentence on the ground that it was too lenient, CNN legal analyst Sunny Hostin said. "To give him a pass this time given the egregious nature of his conduct -- four deaths -- is just incomprehensible," she said. It is unfair that other young defendants without the same wealth could end up in jail for a lot less, said Hostin, of CNN's "New Day" morning show.
December 12, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (25) | TrackBack
"Remorse and Demeanor in the Courtroom: Cognitive Science and the Evaluation of Contrition"
The title of this post is the title of this notable new paper by Susan Bandes now available via SSRN. Here is the abstract:
Although there is a rich legal literature on whether remorse should play a role in the criminal justice system, there is far less discussion of how remorse can be evaluated in the legal context — if indeed it can. There is ample evidence that perceptions of remorse play a powerful role in criminal cases. Whether a defendant is regarded as appropriately remorseful is often a determinative factor in criminal sentencing, including capital sentencing. And in capital cases, in which the defendant rarely testifies, the evaluation of remorse may be based entirely on the facial expression and body language of a defendant sitting silently in the courtroom. Yet the most basic questions about the evaluation of remorse have received little attention: what is it precisely that is being evaluated, and how adept are decision makers at evaluating it? What criteria are being applied and with what level of consistency and fairness?
There is evidence that the evaluation of remorse is particularly difficult across cultural, ethnic or racial lines, or where juvenile or mentally impaired defendants are being judged. But this troubling evidence leads to several larger questions. Is remorse (or the lack of remorse) something that can ever be accurately evaluated in a courtroom? If remorse is not susceptible to courtroom evaluation, is it feasible to bar decision-makers from considering it? And if evaluation of remorse is a permanent feature of the criminal justice system, what can be done to improve upon an evaluative process that is demonstrably riddled with error and bias?
The article considers these questions in light of findings in three flourishing areas of cognitive science: the field of interpretation of facial expressions and “micro” expressions (expressions difficult for the untrained eye to recognize), the study of the dynamics of empathy and empathic accuracy, and the study of implicit bias.
Wednesday, December 11, 2013
Massachusetts Supreme Judicial Court suggests gender is important consideration for placement on state sex offender registry
This AP article, headlined "Mass. court overturns escort's sex offender label," reports on a very interesting ruling today by the top state court in Massachusetts. Here are the basics:
The state’s highest court on Wednesday overturned the classification of a former escort service manager as a low-level sex offender, finding that the state’s Sex Offender Registry Board should have considered research showing women are less likely than men to commit new sex offenses.
The woman, who wasn’t identified in the court’s ruling, pleaded guilty in 2006 to federal charges stemming from her management of an escort service from 2000 to 2002, including one count of transporting a minor to engage in prostitution and one count of sex trafficking of children. She served 17 months in prison while awaiting trial before pleading guilty.
In 2008, the woman requested funds to hire an expert witness, arguing that the board’s guidelines didn’t encompass scientific research on female sex offenders. Her request was rejected by the board. A hearing officer eventually found that she should be classified as a level one sex offender, the lowest level of offender, considered the least likely to reoffend and the least dangerous....
In its ruling Wednesday, the SJC agreed with the woman that the hearing examiner abused his discretion by denying her request for funds for an expert witness who could testify on the subject of how infrequently female sex offenders commit new crimes when compared with men. "We conclude that it was arbitrary and capricious for (the board) to classify Doe’s risk of re-offense and degree of dangerousness without considering the substantial evidence presented at the hearing concerning the effect of gender on recidivism," Justice Barbara Lenk wrote for the court....
The court also said the board is required to ensure that its guidelines are based on "the available literature."
"We do not purport to suggest a frequency with which the guidelines must be updated, but caution that guidelines that fail to heed growing scientific consensus in an area may undercut the individualized nature of the hearing to which a sex offender is entitled, an important due process right," Lenk wrote.
I was able to access the full text of the opinion in Doe v. Sex Offender Registry Board, No. SJC-11328 (Mass. Dec. 11, 2013), at this link.
December 11, 2013 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack
Unanimous win for Kansas on Fifth Amendment issue in Cheever
The Supreme Court this morning handed down its first criminal law opinion in a case that was fully briefed and argued this Term. This unanimous ruling in Kansas v. Cheever starts and ends this way:
The Fifth Amendment to the United States Constitution provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . .” The question here is whether the Fifth Amendment prohibits the government from introducing evidence from a court-ordered mental evaluation of a criminal defendant to rebut that defendant’s presentation of expert testimony in support of a defense of voluntary intoxication. We hold that it does not....
We hold that where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence.
The judgment of the Kansas Supreme Court is therefore vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
Poland asks Connecticut not to send murderer to death row
I just saw this intriguing domestic death penalty story from Connecticut with a notable international spin. The piece is headlined "Poland's president challenges state's death penalty," and here are excerpts:
In what could spark an international incident, the president of Poland is demanding the state not execute a former Trumbull man for the terrifying 2006 murders of a city woman, her 9-year-old daughter and a Milford landscaper.
"We strongly believe the death penalty should not be imposed," Agniestka Torres, vice consul and head of the legal section for the Polish consulate general in New York, told Hearst Connecticut Newspapers. "It doesn't matter what crimes he committed."
The government of the Republic of Poland this week notified Gov. Malloy and the Chief State's Attorney Kevin Kane that it objects to Richard Roszkowski -- whose parents were Polish -- getting the death penalty. Torres said the appeal comes directly from their president, Bronislaw Komorowski, who recently signed a law banning the death penalty in all circumstances.
Roszkowski was born in the U.S., but both his parents, who are now dead, emigrated from Poland and Roszkowski visited Poland when he was a child. "As far as we are concerned Mr. Roszkowski is a Polish national and is covered by our laws," Torres said....
This latest development adds to an already controversial status for the state's death penalty. In the last 60 years only one person, convicted serial killer Michael Ross, has been executed in this state and that was in February 2005.
Last year Malloy, an opponent of the death penalty, signed a law abolishing it for any new crimes. However, the law left in place the 10 men currently on death row. That portion of the law is currently under appeal.
Last week jury selection was completed for the death penalty hearing against the 48-year-old Roszkowski. His hearing is set to begin Jan. 7.
In May 2009 a Bridgeport jury found Roszkowski guilty of two counts of capital felony, three counts of murder and one count of criminal possession of a firearm for the Sept. 7, 2006, shooting deaths of 39-year-old Holly Flannery, her daughter, Kylie, and 38-year-old Thomas Gaudet.
Although the same jury that convicted Roszkowski of the crime subsequently found he should get the death penalty, the verdict was overturned on a technicality and a new penalty hearing was ordered. At least one of the jurors selected for the new death penalty hearing appears to be of Polish heritage....
Roszkowski's lawyers did not deny he killed the victims but presented nationally recognized medical experts and death penalty opponents who testified Roszkowski has brain damage caused by earlier car crashes, hepatitis and long-term drug use. The families of the victims declined comment because they are expected to testify in the upcoming hearing.
Among other interesting questions raised by this story concerns whether and how the defense lawyers for this mass murderer ought to be able to bring up these international issues during the penalty trial. Could and should Roszkowski's lawyers be able to argue to the jurors that sentencing Roszkowski to death would cause an international incident and hurt US-Polish relations? Could and should Roszkowski's lawyers be able to have members of the Polish consulate general testify for the defense at the penalty trial?
Tuesday, December 10, 2013
"Harsh Sentences Are Killing the Jury Trial"
The title of this post is the headline of this forceful commentary at The Atlantic authored by Andrew Guthrie Ferguson. Here are lengthy excerpts from a piece that merits a full read:
[T]he Human Rights Watch Report, “An Offer You Can’t Refuse,” confirms that harsh sentencing laws have undermined the American jury system. On average, 97 percent of defendants plead guilty in federal court. For crimes that carry a minimum mandatory sentence, going to trial has simply become too risky. As Human Rights Watch reports: “Defendants convicted of drug offenses with mandatory minimum sentences who went to trial received sentences on average 11 years longer than those who pled guilty.”
This risk goes well beyond the traditional trade-offs. Plea offers have been around since the 1800s and are a well-established and necessary part of criminal practice. But the new mandatory minimums and sentencing enhancements have given federal prosecutors new power to coerce pleas and avoid trials. A prosecutor can now give a minor drug dealer this choice: “Plead guilty to a reduced charge, or go to trial and risk sentencing that will put you in jail for decades.” It’s not hard to understand why so many defendants — whether innocent, guilty, or not quite as guilty as charged — are taking the first option....But, there is a secondary cost that is less often discussed but equally damaging to the criminal justice system. Harsh sentencing laws are killing the jury trial. And without trials, citizens have no say in the criminal justice system.
It is no accident that the jury trial is the only constitutional right to make a repeated appearance in the original Constitution and the Bill of Rights. The founding fathers considered criminal juries to be the best mechanism for checking the power of judges and lawyers. By interposing citizens between a prosecutor and a conviction, the constitutional system protected individual liberty. This is not to say that colonial juries did not convict people quite regularly, and quite harshly. But when they did, citizens, not prosecutors, were the ones condemning the law breakers. It was this local, public participation that gave legitimacy to the larger system.
The modern domination of plea bargains has excised the role of the citizen-juror. Without trials, citizens do not learn about what is happening in the criminal justice system, and they have no way of taking part in it. Instead of seeing the consequences firsthand, ordinary Americans must rely on research reports and news stories. This practice disconnects the people from their own democratically enacted laws, precluding them from evaluating these elective choices.
Unlike trials, plea bargains take place in secret, away from public scrutiny. They involve negotiations between repeat players in the system — the lawyers. And for many types of crimes, the bargains are influenced by federal policies, not local ones. Thus, the jury system — with its emphasis on local authority and public participation — has been replaced with a system as insular as it is broken....The push for jury trials in the Bill of Rights came from citizens — not judges, politicians, or prosecutors. In fact, the perceived lack of citizen involvement in the legal system almost derailed the original Constitution, as Anti-Federalists saw it as a threat to their liberty. Concerned citizens wrote, organized, and protested on behalf of their own role in the justice system. They won, and that victory can still be read in the Sixth Amendment, which promises in rather emphatic terms that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.”
Today, Americans of all political persuasions should embrace a greater role for juries, at least when it comes to federal prosecutions. After all, Tea Party conservatives believe in local, accountable government, while progressive liberals believe in an equitable system of justice. More jury trials will mean more ordinary people engaged in the legal system — more citizens involved in their government. The result will not only be consistent with the original design of the Constitution but, like the jury system, itself, will encourage more local, democratic, participatory engagement with our government and its policies.
A few recent and older related posts on modern prosecutors and plea practices:
- Remarkable new HRW report details massive "trial penalty" due to mandatory minimums in federal system
- "The Prisoners’ (Plea Bargain) Dilemma"
- US District Judge Bennett documents prosecutor-created disparity from § 851 enhancements in yet another potent opinion
- A prosecutor's potent perspective on Lafler, Frye and the future of plea bargaining
- "The Plea Jury"
- Don't federal mandatory minimums preserve a lawless (and perhaps discriminatory) "luck-of-the-draw system" of sentencing?
- Scott Burns from National District Attorneys Association makes the prosecutors case for mandatory minimums
- "Who's Guarding the Henhouse? How the American Prosecutor Came to Devour Those He is Sworn to Protect"
- "The Unchecked Charging Power of the Prosecutor"