Wednesday, November 26, 2014

"The Neuroscientific Case Against Retributive Justice"

The title of this post is the title of this interesting new article by Stephen Morris and Robert Robinson available via SSRN.  Here is the abstract:

Retributive Justice is the theory of justice according to which individuals are either rewarded or punished as payback for the moral rights/wrongs they have committed. Consequentialist considerations such as deterrence and prevention do not figure into justifications for treatment from this perspective.  This theory also holds that the severity of the punishment ought to be in proportion to the severity of the crime. The central tenant of the retributive model of justice — namely, that reward/punishment gives people what they deserve — relies crucially upon the intuition that people are sometimes accountable for their actions in some strong metaphysical sense.  In particular, we may intuitively feel justified in holding someone morally responsible if her actions were intentional, rather than accidental or coerced.  This common view is captured by what we call the "Principle of Retribution": i.e., the view that it is fair to hold an agent morally responsible, and therefore punish her for her crimes, only if her actions were freely willed, intentional, and uncoerced. It follows from this that unless free will exists for human beings, retributivist justice (at least insofar as human beings are concerned) cannot be justified.

We begin by looking back at how theories of retributive justice grew up alongside theories of distributive justice and we describe how those theories have subsequently grown apart. From there we argue that current empirical research in the field of neuroscience casts doubt on the legitimacy of the retributive model of justice insofar as it undermines a particular understanding of free will that appears necessary for its own justification.  Much of the recent work on neuroscience's impact on the subject of free will has centered on the work of Benjamin Libet, whose experiments provided evidence that people's actions were initiated by unconscious brain processes that occurred prior to any conscious awareness of decision making on the part of the actor. We argue that the strongest case that neuroscience makes against the type of free will at issue comes not from Libet's work, but rather from more recent studies indicating that human behavior can be predicted with a high degree of accuracy based on unconscious neural processes.  Furthermore, the case against the relevant sort of free will is bolstered by extensive research suggesting that much, if not all, of the explanations for human behavior involving conscious causes are no more than confabulations that attempt to put a conscious narrative upon actions that have strictly unconscious origins. Finally, we provide empirical evidence that determinism is — for all intents and purposes — the correct position with regard to human cognition, decision making, and choice.  We then argue that insofar as retributive justice seems to require that some actions depend on actions that are non-determined, neuroscience suggests that retributive justice is unjustifiable.

We conclude by providing insight for revising our thinking about criminal justice and what we owe to those who commit crimes. In particular, we discuss how the common theory of distributive justice — which remains intact and includes principles guaranteeing individual liberty and equality of opportunity — gives advice on how we have failed people antecedent to their crimes, and how a person is best dealt with after her crime has been committed.

November 26, 2014 in Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Some unusual suspects working to stop Texas from executing mentally ill condemned murderer

Panetti003This new Mother Jones article reports on some of the interesting persons who are eager to prevent Texas from carrying out a notable death sentence next week.  The article is headlined "Can Ron Paul and Conservative Evangelicals Save a Texas Death-Row Inmate? A rightwing crusade aims to stop the execution of Scott Panetti, a mentally ill convicted murder." Here are excerpts:

When Scott Panetti represented himself in a Texas capital murder case in 1995, wearing a purple cowboy suit and calling himself "Sarge," he called as a witness a veterinarian who once lived across the street from him. Panetti questioned the vet about the time he euthanized Little Blue, Panetti's old dog. The episode had nothing to do with the case. Other witnesses Panetti tried to call to the stand: John F. Kennedy and Jesus.

Trial transcripts, medical records, and expert witness testimony have documented that Panetti suffers from severe schizophrenia. He believes Texas is going to execute him to stop him from preaching the gospel — not because he shaved his head, donned camo fatigues, and shot and killed his in-laws in 1992. The Supreme Court has declared that executing the mentally ill violates the Eighth Amendment's prohibition on cruel and unusual punishment, but several Texas and federal courts — including the US Supreme Court — have reviewed Panetti's case, and each one has ruled that the state can proceed with his lethal injection. Now, with Panetti’s execution scheduled for December 3, the only thing that might save him is a national campaign being mounted by conservatives, including former Texas Republican congressman and libertarian icon Ron Paul.

Panetti's lawyers have filed a clemency petition with the Texas Board of Pardons and Parole, which can recommend that Gov. Rick Perry, a Republican, commute Panetti's sentence to life in prison without parole. That petition has received an outpouring of support from conservatives and evangelicals. In addition to Paul, this group includes Jay Sekulow, an evangelical lawyer famous for pressing religious liberties cases on behalf of social conservatives.

Paul's involvement in the case is unusual. Last year, he publicly endorsed a new advocacy group, Conservatives Concerned About the Death Penalty, saying, "I believe that support for the death penalty is inconsistent with libertarianism and traditional conservatism." This was the result of a years-long evolution....

It’s also unusual for conservative Christians to support a clemency petition like Panetti's. The last time evangelicals really rallied en masse to prevent a pending execution was in 1998, in the case of Karla Faye Tucker, who converted to Christianity in prison and became a conservative cause celebre. Despite the pleadings of evangelicals such as Pat Robertson, the Texas governor at the time, George W. Bush, went ahead with the execution, and Tucker became the first woman executed in the state since 1863.

The Panetti case is different. His religious fervor is the product of a brain disorder, and the evangelicals' opposition to his execution is not related to his religious proclamations. It is more of a reflection of the shift in public attitudes regarding capital punishment that has been driven by the growing number of exonerations of death-row inmates, the high number of mentally ill and disabled people sentenced to die, and the inefficient and expensive administration of capital punishment. "A lot of conservatives are late to realize that the whole criminal justice system is part of the government," says Richard Viguerie, a prominent conservative leader and an ardent opponent of the death penalty.

Religious conservatives are increasingly joining those who would like to see the end of the death penalty, citing their movement’s commitment to a "culture of life," which has traditionally focused primarily on restricting abortion. Conservative evangelicals, says Beaudoin, have been animated by the Panetti case over the past few weeks. Her outfit has opposed other executions, but, she says, the Panetti case has hit a nerve. She has been surprised by the number of influential Christians who have signed on to the clemency petition, especially Samuel Rodriguez, the president of the National Hispanic Christian Leadership Coalition, who's on Time magazine's 2013 list of the 100 most influential people in the world. Abby Johnson, a former Planned Parenthood clinic director who now runs a pro-life ministry for former abortion clinic employees, wrote an editorial in the Dallas News calling on Texas to spare Panetti.

"This is the largest outpouring of support on a death penalty case we've seen from evangelicals, and you can see why, given the ridiculous nature of this case," Beaudoin says. "A lot of folks who signed this [clemency] letter might have given pause about signing on to a letter opposing the death penalty generally, but they think we have no business executing Scott Panetti." She adds, "As Christians, we're called protect the most vulnerable. And there's just no question that Scott Panetti is in that number as someone who's suffered from severe mental illness. We all want to keep society safe, but I'm thankful there are other ways to do that than executing people."

November 26, 2014 in Death Penalty Reforms, Offender Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Monday, November 24, 2014

"Will Texas Kill an Insane Man?"

The question in the title of this post is the headline of this lengthy New York Times editorial. Here are excerpts:

On Dec. 3, Texas plans to execute an inmate named Scott Panetti, who was convicted in 1995 for murdering his in-laws with a hunting rifle. There is no question that Mr. Panetti committed the murders. There is also no question that he is severely mentally ill, and has been for decades.

During his capital murder trial, at which he was inexplicably allowed to represent himself, Mr. Panetti dressed in a cowboy suit and attempted to subpoena, among others, John F. Kennedy and Jesus Christ.  A standby lawyer said his behavior was “scary” and “trance-like,” and called the trial “a judicial farce.”

It was not an act.  Mr. Panetti, now 56, was first diagnosed with schizophrenia when he was 20, and in the years before the murders he was hospitalized several times for delusions and psychotic episodes.  

In this respect, he is no different from the estimated 350,000 inmates around the country with mental illness — 10 times the number of people in state psychiatric hospitals.  But Mr. Panetti is not just another insane prisoner; his name is synonymous with the Supreme Court’s modern jurisprudence about mental illness on death row. In Panetti v. Quarterman, decided in 2007, the justices held that it is not enough for a defendant simply to be aware that he is going to be executed and why — the previous standard the court had used in permitting the execution of the mentally ill....

But the justices refused to set precise guidelines for determining whether someone is competent enough to be executed, and they did not overturn Mr. Panetti’s sentence. Instead, they sent the case back to the lower courts for a fuller reconsideration of his current mental state.

By any reasonable standard — not to mention the findings of multiple mental-health experts over the years — Mr. Panetti is mentally incompetent. But Texas, along with several other stubborn states, has a long history of finding the loopholes in Supreme Court rulings restricting the death penalty.  The state has continued to argue that Mr. Panetti is exaggerating the extent of his illness, and that he understands enough to be put to death — a position a federal appeals court accepted last year, even though it agreed that he was “seriously mentally ill.”

Mr. Panetti has not had a mental-health evaluation since 2007.  In a motion hastily filed this month, his volunteer lawyers requested that his execution be stayed, that a lawyer be appointed for him, and that he receive funding for a new mental-health assessment, saying his functioning has only gotten worse.  For instance, he now claims that a prison dentist implanted a transmitter in his tooth.

The lawyers would have made this motion weeks earlier, immediately after a Texas judge set Mr. Panetti’s execution date. But since no one — not the judge, not the district attorney, not the attorney general — notified them (or even Mr. Panetti himself), they had no idea their client was scheduled to be killed until they read about it in a newspaper. State officials explained that the law did not require them to provide notification.

On Nov. 19, a Texas court denied the lawyers’ motion. A civilized society should not be in the business of executing anybody. But it certainly cannot pretend to be adhering to any morally acceptable standard of culpability if it kills someone like Scott Panetti.

November 24, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Sunday, November 23, 2014

Reviewing the potential and pitfalls in a notable problem-solving court in NYC

Today's New York Times has this terrific lengthy account of the work of a unique "problem-solving court" in New York.  The piece is headlined "In a Queens Court, Women in Prostitution Cases Are Seen as Victims," and here are small excerpts from an article that merits a read in full:

The Human Trafficking Intervention Court in Queens, which is marking its 10th anniversary next month, ... serves as a model for a statewide 11-court program that began last year. The intention is to change the legal conversation around the multibillion-dollar sex trade by redefining the women in it as victims instead of criminals. Most are offered a deal: Take part in a set number of counseling sessions, usually five or six, and the charges will be dismissed and the record sealed.

After 13 months, the five New York City courts are still a work in progress, their success tracked more in individual stories than statistics. “This court is not devised to solve the problems of trafficking,” Judge Serita said of the program, “but to address one of the unfortunate byproducts, which is the arrest of these defendants on prostitution charges.”

All defendants in the specialized courts are presumed to be victims at risk, the first of many assumptions made, in part, because of the silence surrounding sex trafficking. That silence also makes it tougher to shift social mores. Not only do the police and the justice system still treat prostitution as a crime, but the women themselves, most undocumented, often don’t define themselves as having been trafficked — whether out of fear, shame or choice....

At no point in the proceedings does the judge, the prosecutor or the defense lawyer ask if the defendants have been trafficked; nor is there a quid pro quo to give up a trafficker. It is rare, but the hope is that the women, perhaps after working with counselors, will feel comfortable describing the conditions that led them to prostitution....

On Fridays, Judge Serita usually hears more than 40 cases in three hours. “How are you today?” she asks each of the women, inquiring whether they take English classes and praising their progress. Several defendants said they noticed less that she was an Asian woman and more that she had a warm demeanor. On other days, she presides over the drug treatment and mental health courts in Queens.

The trafficking court, she acknowledged, is a Catch-22: For people to feel less like criminals, they must first go through the criminal justice system. Leigh Latimer, the Legal Aid Society lawyer assigned to Judge Serita’s court, agreed. “There is a somewhat more recent view that clients are potentially victims, but we’re still arresting them at a very rapid pace,” she said. “We’re trying to solve their problems through being arrested, which is not an affirming process.”...

On several Fridays, nearly a dozen women said during interviews in Mandarin that they did not feel like trafficking victims, but victims of the police. The women all spoke on the condition of anonymity because their cases were still pending. “My name has been tarnished,” said one woman, who was upset that her case was “lumped with all those others.” She denied performing a sex act, but the police report contradicted that, Ms. Affronti said.

Another woman explained that she was arrested at 4 a.m. on her sixth day of work. She and her sister, who quit after the second day because she sensed “something was not right,” owed more than $80,000 to friends and family members who raised the money for them to come to the United States from Fuzhou. That type of pressure to pay back smuggling agents — often with interest as high as 12 percent — is considered “debt bondage.” It is a more subtle condition of human trafficking, but is pervasive in New York’s Asian communities, lawyers say.

November 23, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, November 22, 2014

Notable comments from AAG about Justice Reinvestment

Earlier this week, Assistant Attorney General Karol Mason delivered these interesting remarks for DOJ's Office of Justice Programs at a big Justice Reinvestment Summit. The full speech is worth review, and here are a few excerpts I found noteworthy:

I think it can legitimately be said that justice reinvestment has transformed the way we approach public safety in this country.  It is no exaggeration to say that it has helped to redefine the missions of our criminal and juvenile justice agencies.  Thanks in great part to the focus that your work has given to justice policies, corrections leaders, law enforcement officials and prosecutors have begun to measure their performance, not just by the narrow metrics of arrests, convictions and confinement, but by actual improvements to public safety.

And this shift in attitude and approach is paying off.  Many states that have engaged in Justice Reinvestment have seen drops in crime rates and imprisonment — and substantial taxpayer savings.

Having just emerged from the recent mid-term elections, it’s worth remarking on another important aspect of justice reinvestment: it’s an approach to justice policy that resonates on both sides of the aisle.  We’ve seen lawmakers who disagree on just about every other policy matter rally around data-driven analysis focused on investing increasingly scarce public resources in programs and policies that work.

State and local governments, representing all political persuasions, have taken on major reforms designed to reduce prison-building costs and redirect precious public funds to programs aimed at reducing crime.  It can honestly be said that, in a climate of intense partisanship, we are witnessing the growth of a broad, bipartisan consensus in city halls, state capitals and Congress around crime and justice policy, thanks in great measure to justice reinvestment....

This progress is reflected in a general downward trend in both crime and incarceration rates throughout the country.  Before the FBI released its most recent data last week, crime had declined nationally by more than 11 percent since President Obama took office. The new FBI data show additional drops in 2013.  On top of that, the rate of incarceration has gone down by more than eight percent since 2009.  It’s the first time these two measures have fallen together in more than 40 years.  This is truly historic! We’re experiencing a moment of public safety unprecedented in most of our lifetimes.

But this is no time to relax.  Those of you who’ve been in this business for a while know that the winds of justice and sentencing policies have always blown hot and cold.  If we don’t take advantage of the momentum we’ve built through Justice Reinvestment and embed this data-driven mindset into mainstream practice, we risk a return to the counterproductive practices of the past.

In fact, truth be told, we are still two nations when it comes to prison trends. The extraordinary success in reducing incarceration that we’ve been able to realize in many states has been offset by continued increases in others.  Now, to be sure, these figures don’t reflect that some of the states with increases are now working through justice reinvestment to change course.  And I’m confident that now we have the wind at our back. But we will have to remain vigilant.

November 22, 2014 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, November 20, 2014

"The Racist Origins of Felon Disenfranchisement"

The title of this post is the headline of this recent New York Times commentary by Brent Staples. Here are excerpts:

The state laws that barred nearly six million people with felony convictions from voting in the midterm elections this month date from the late 19th and early 20th centuries, when Southern lawmakers were working feverishly to neutralize the black electorate.  Poll taxes, literacy tests, grandfather clauses and cross burnings were effective weapons in this campaign.  But statutes that allowed correctional systems to arbitrarily and permanently strip large numbers of people of the right to vote were a particularly potent tool in the campaign to undercut African-American political power.

This racially freighted system has normalized disenfranchisement in the United States — at a time when our peers in the democratic world rightly see it as an aberration. It has also stripped one in every 13 black persons of the right to vote — a rate four times that of nonblacks nationally.  At the same time, it has allowed disenfranchisement to move beyond that black population — which makes up 38 percent of those denied the vote — into the body politic as a whole.  One lesson here is that punishments designed for one pariah group can be easily expanded to include others as well....

Maine residents vigorously debated the issue last year, when the Legislature took up — and declined to pass — a bill that would have stripped the vote from some inmates, whose crimes included murder and other major felonies.  Families of murder victims argued that the killers had denied their loved ones the right to vote and therefore should suffer the same fate.

Those who opposed the bill made several arguments:  That the franchise is enshrined in the state Constitution and too important to withdraw on a whim;  that voting rights keep inmates connected to civic life and make it easier for them to rejoin society;  that the notion of restricting rights for people in prison was inconsistent with the values of the state.

A former United States marshal and police chief argued that revoking inmate voting rights would strip imprisoned people of dignity and make rehabilitation that much more difficult. The editorial page of The Bangor Daily News argued against revocation on the grounds that, “Removing the right of some inmates to exercise their legal responsibility as voters in a civilized society would undermine that civilized society.”

The fact that most states view people who have served time in prison as beyond the protection of the bedrock, democratic principle of the right to vote shows how terribly short this country has fallen from achieving its ideals.

November 20, 2014 in Collateral consequences, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5) | TrackBack

"Overcriminalization: Administrative Regulation, Prosecutorial Discretion, and the Rule of Law"

The title of this post is the title of this notable new paper by Ronald Cass now available on SSRN.  Here is the abstract:

Recently, both practical and doctrinal changes have significantly reduced the degree to which criminal punishment fits rule-of-law ideals.  Although far from the only cause, the expansion of criminal sanctions as a by-product of an extraordinary explosion in administrative rulemaking that is backed by criminal liability has helped propel this change.  While there are reasons to support criminal enforcement of administrative decision-making, the ways in which administrative rules are adopted, applied, and enforced and the scale of governmental law-making (including administrative rule-making) that has provided the grounds for potential criminal penalties have produced a massive increase in government power that risks serious erosion of individual liberty.

This change cries out for immediate attention ― and for changes to the law.  This article explores differences between criminal law and administrative law, and between statutory and administrative rule generation and application, explaining how differences between administrative law and criminal law play out (problematically) with respect to much criminal enforcement of administrative rules.

November 20, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Tuesday, November 18, 2014

Wonderful new on-line resource, Collateral Consequences Resource Center, now available

Header-mainI am very pleased to be able to report on a very important addition to the criminal justice on-line universe, the Collateral Consequences Resource Center.  This posting by Margy Love provides this background and something of a mission statement:

The Collateral Consequences Resource Center website launches on Tuesday, November 18, 2014.  We hope it will fill a growing need for information and advice about the modern phenomenon of mass conviction and the second-class citizenship it perpetuates.

The legal system is only beginning to confront the fact that an increasing number of Americans have a criminal record, and the status of being a convicted person has broad legal effects.  The importance of collateral consequences to the criminal justice system is illustrated by cases like Padilla v. Kentucky (2010), holding that defense counsel have a Sixth Amendment obligation to advise clients about the possibility of deportation.  Civil lawyers too are mounting successful constitutional challenges to harsh consequences like lifetime sex offender registration, categorical employment disqualification, and permanent firearms dispossession, which linger long after the court-imposed sentence has been served.  Government officials have tended to regard collateral consequences primarily as a law enforcement problem involving the thousands leaving prison each year, but they are now considering how to deal with the lifetime of discrimination facing the millions who have long since left the justice system behind.  Advocates are pointing out how counterproductive and unfair most mandatory collateral consequences are, and legislatures are paying attention.  People with a record are organizing to promote change.

The time is right to launch the Collateral Consequences Resource Center, which will bring together in a single forum all of these diverse interests and issues.  The Center’s goal is to foster public discussion and disseminate information about what has been called the “secret sentence.”  Through its website the Center will provide news and commentary about developments in courts and legislatures, curate practice and advocacy resources, and provide information about how to obtain relief from collateral consequences in various jurisdictions.  The Center aims to reach a broad audience of lawyers and other criminal justice practitioners, judges, scholars, researchers, policymakers, legislators, as well as those most directly affected by the consequences of conviction.  It invites tips about relevant current developments, as well as proposals for blog posts on topics related to collateral consequences and criminal records: staff@CCResourceCenter.org.

Impressively, this new web resource (which I guess I will call CCRC) has a ton of terrific content already assembled at webpages dedicated to State-Specific Resources, Books and Articles, and Reports and Studies.  And here are links to a few recent notable blog postings:

November 18, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack

Thursday, November 13, 2014

"'I Expected It to Happen/I Knew He'd Lost Control': The Impact of PTSD on Criminal Sentencing after the Promulgation of DSM-5"

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

The adoption by the American Psychiatric Association of DSM-5 significantly changes (and in material ways, expands) the definition of post-traumatic stress disorder (PTSD), a change that raises multiple questions that need to be considered carefully by lawyers, mental health professionals, advocates and policy makers.

My thesis is that the expansion of the PTSD criteria in DSM-5 has the potential to make significant changes in legal practice in all aspects of criminal procedure, but none more so than in criminal sentencing.  I believe that if courts treat DSM 5 with the same deference with which they have treated earlier versions of that Manual, it will force them to seriously confront — in a wide variety of cases — the impact of PTSD on sentencing decisions.  And this may lead to more robust debates over the impact of mental disability generally on sentencing outcomes.

My optimism here is tempered by (1) the reality that courts deal teleologically with mental disability evidence in general (subordinating it when it is introduced by the defendant, and privileging it when introduced by the state), and (2) the power of sanism — an irrational prejudice of the same quality and character as other irrational prejudices that cause, and are reflected in, prevailing social attitudes such as racism, sexism, homophobia, and ethnic bigotry — in this entire inquiry.

On the other hand, we must also consider the impact of therapeutic jurisprudence on the question in hand.  Therapeutic jurisprudence (TJ) presents a new model for assessing the impact of case law and legislation, recognizing that, as a therapeutic agent, the law that can have therapeutic or anti-therapeutic consequences.  Although some scholars have considered TJ in the context of the Federal Sentencing Guidelines, it remains mostly an “under the radar” topic.”  I believe it is essential we give it a new and urgent focus.

I am convinced that, if courts take seriously the new treatment of PTSD in DSM 5, and couple that with an understanding of sanism and an application of TJ, that will lead to an important sea change in the ways that defendants with that condition — especially those who are Iraqi and Afghanistani war veterans - are sentenced. This paper proceeds in this manner.  First, I briefly review the law of sentencing as it relates to persons with disabilities, focusing on developments that followed the Supreme Court’s decision in United States v. Booker (making the Federal Sentencing Guidelines advisory rather than mandatory), the role of sanism, and the significance of therapeutic jurisprudence.  Then, I look at how courts have, until this moment, treated PTSD in sentencing decisions. I will then look at DSM 5 to highlight its definitional changes.  I then try to “connect the dots” to show how DSM 5 demands changes in sentencing practices, and explain how this change can be consonant with the principles of TJ. I will end with some modest conclusions.

November 13, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (12) | TrackBack

Monday, November 10, 2014

Federal prosecutors righteously undo convictions based on FBI agent's misdeeds

Regularly readers know I am quick to criticize federal prosecutors in this space when I am troubled by decision that seem driven more by a desire to win convictions and secure long sentences than by a commitment to do justice.  Given that reality, I nw want to be among the first to praise federal prosecutors for their response to evidence than an FBI agent in the DC area tampered with evidence in a number of serious prosecutions.  This Washington Post piece, headlined "More drug defendants cleared of charges because of investigation into FBI agent," provides details on a story that showcases the virtuousness of federal prosecutors:

Thirteen defendants charged with or convicted of distributing large amounts of heroin in the District had their cases dismissed Friday because prosecution had been tainted by an FBI agent who is accused of tampering with evidence linked to the cases, including drugs and guns.

Seven of the defendants had pleaded guilty in the drug conspiracy and four of them were serving prison sentences of between two and seven years.  But in one instant, all were unburdened by criminal charges or convictions, and those serving time had their sentences vacated. As soon as the hearing in federal court adjourned, the former defendants rushed from the box normally reserved for jurors, with one jubilantly saying, “Let me get out of here before [the judge] changes his mind.”

Friday’s ruling in U.S. District Court follows similar action Thursday, when another judge threw out charges involving 10 people convicted in a separate drug conspiracy involving the sale of heroin and cocaine.  Charges in other cases could be dropped in the near future.

Prosecutors had recommended dropping the charges amid the investigation of Matthew Lowry, 33, an FBI agent assigned to the Washington field office who worked with police on crime that spilled over from the District into Maryland and Virginia.  Lowry has been suspended but not charged. The investigation is being led by the Justice Department’s inspector general, and court documents link the dismissals to the probe involving Lowry.

Authorities have said little about the investigation, but court documents filed as part of the release of suspects say that Lowery is accused of tampering with drug and gun evidence. Officials with knowledge of the investigation have said the agent allegedly took heroin and used it himself.  Other officials said Lowry was found in the last week of September slumped over the wheel of an unmarked FBI car near the Navy Yard, along with two drug evidence bags, heroin and two guns.

The fallout has been swift.  Within days, prosecutors identified at least three drug cases and started to send defendants home from jail and prison to await further action. Prosecutors began dismissing cases outright Thursday.  In all, 23 of 28 defendants in two drug cases have had their charges dismissed.

“We do not lightly dismiss these cases, particularly when the defendants face the serious drug charges at issue here,” U.S. Attorney Ronald C. Machen Jr. said in a statement.  But, he added, “The credibility of the system is paramount and more important than any individual prosecution. That’s why we are carrying out a case-by-case, defendant-by-defendant review to determine which cases should go forward.

"We are carefully examining the role that the FBI agent played in each investigation to assess whether the case can proceed.  And moving forward, be assured we will not be dissuaded from aggressively investigating and prosecuting narcotics cases to protect the residents of the District of Columbia,” the prosecutor said....

One of the defendants freed, 59-year-old Brandon Beale, went straight from the courtroom to the Pretrial Services Agency so he could turn in his ankle bracelet and shed the restrictions of home detention, said his attorney, Greg English.  English said Beale, who was jailed for nearly a year, planned to fight the charges on the grounds that he was merely a drug user, not a dealer.  Now, English said, there will be no reason to do that.

“This turn of events is absolutely extraordinary for an agent to commit misconduct like this. It goes to the basic integrity of the system,” English said. “But having said that, I think the U.S. Attorney’s Office did the right thing today and dismissed it. . . . They were completely ethical and upfront in their conduct in this case.”  English said it was technically possible for prosecutors to bring the charges against Beale and others again, but he doubted they would do so.

In addition to being eager to praise federal prosecutors for their swift and aggressive response to learning that an FBI agent has gone rogue, I am also eager to know if anyone (e.g., Bill Otis) might be incline to criticize the federal prosecutors for moving to vacate a bunch of convictions rather than to seeking to contend that any evidence problems created by the rogue agent produced on harmless errors.

November 10, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, November 05, 2014

"Fish, Shotguns and Judicial Activism"

Images (3)The title of this post is the title of this terrific new Bloomberg commentary by Noah Feldman spotlighting some connected issues in the two big federal criminal justice cases being heard today by the US Supreme Court. Here are extended excerpts that explain why jurisprudes, and not just criminal justice fans, ought to be watching these cases closely:

Is a fish a tangible object? Does a sawed-off shotgun pose serious risk of injury? Laugh if you must, but the U.S. Supreme Court is taking up these questions in a pair of cases that will form another chapter in the saga of our vastly expanding federal criminal law. Funny as the cases may seem -- both funny strange and funny ha-ha -- they illustrate how policy and law constantly interact for a court deeply divided about the nature of statutory interpretation.

The fish case, Yates v. United States, involves a Florida fishing boat that was boarded and found to have 72 undersized grouper aboard. Ordered to bring the fish back to port where they would be used as evidence, the skipper, John Yates, instead threw them overboard and tried to substitute fish that were over the legal size requirement.

The criminal nature of the act seems intuitive. The part that has reached the Supreme Court on appeal stems from Yates’s conviction under a provision of the Sarbanes-Oxley Act that punishes anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object.” The government says that Yates destroyed a tangible object, namely the fish. Yates says the law, passed after the Enron scandal, is intended to prohibit shredding documents, not throwing fish into the sea....

Aristotle, followed by today’s purpose-driven interpreters such as Justice Stephen Breyer, believed the solution is to interpret the law as its authors would have intended had they only thought of the future case. Others, such as Justice Antonin Scalia, reject the idea that the judge should do anything but apply the law as it is written. Ordinarily, you could expect the case to come down to this division, and to come out 5-4, depending on what Justice Anthony Kennedy thinks of it.

In Yates’s case, things are more complicated. Breyer may well reason that the underlying purpose of the statute is not to protect documents from destruction but to protect evidence in federal cases from being destroyed by defendants. If so, he would uphold Yates’s conviction insofar as Yates was clearly trying to get away with a crime by getting rid of the evidence.

For his part, Scalia may find himself affected by a special principle that he applies only in criminal cases: the “rule of lenity,” according to which an ambiguous statute should be interpreted in favor of the criminal defendant. If Scalia were to follow this principle, he might overturn the conviction.

Of course, whether to apply the rule of lenity depends on whether you think the law is ambiguous. The government says it isn’t: You can hold a fish, so it’s a tangible object. If Scalia thinks the ambiguity -- if any -- derives from context, not language, then according to his own jurisprudence, he shouldn’t apply the rule of lenity, and should uphold the conviction.

The shotgun case, Johnson v. United States, is no less challenging -- and no less odd. Samuel James Johnson, founder of something called the Aryan Liberation Movement, was arrested after he made the mistake of telling an undercover federal agent about his plans for attacking various non-Aryan targets. He was in possession of weapons including an AK-47 -- and that possession was a felony that would ordinarily have gotten him roughly 10 years in prison. But Johnson had three prior convictions. And under the federal Armed Career Criminal Act, a fourth conviction for a violent felony carries a minimum of 15 years.

The law defines “violent felony” to include a range of obvious crimes -- plus any “conduct that presents a serious potential risk of physical injury to another.” One of Johnson’s prior state convictions was for possession of a short-barreled shotgun. Did owning the illegal shotgun pose a serious potential risk?

You won’t be surprised to hear what the gun lobby thinks about that in its friend of the court briefs -- but that’s not really the important point here. The crucial question is, what’s the meaning of the so-called residual clause of the repeat offender law? How should the courts define what counts as a serious risk of potential injury?

The Supreme Court has been answering that question on a case by case basis -- a practice disliked by, you guessed it, Justice Scalia. He thinks the law is unconstitutionally vague, because it doesn’t provide defendants sufficient notice or the courts adequate guidance. It’s easy to see why the law worries Scalia. He wants the courts to follow the law’s literal meaning, not its policy aims -- but it’s almost impossible not to inject policy when the law tells you to evaluate “serious potential risk of physical injury.”

The purpose-oriented justices look at the interpretive issue and see business as usual. To them, the courts must always consider policy and purpose, whether the subject is tangible fish or injurious firearms.

Who’s right is a deep question of jurisprudence. But as a practical matter, the cases show that Scalia’s approach, devoted to opposing judicial activism, won’t work when Congress actively wants the judiciary to make the law up as it goes along. If Scalia wants to avoid relying on his own judgment, he has to strike down the law as unconstitutional. And that isn’t judicial restraint. It’s activism. 

Some previous related posts:

November 5, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Monday, November 03, 2014

Arguing for releasing all drug prisoners and reparations to "right the drug war’s wrongs"

Lucy Steigerwald has this provocative new Washington Post blog/commentary piece headlined "Sentencing reform and how to right the drug war’s wrongs." Here are excerpts:

On November 1, the U.S. Sentencing Commission’s plan to reform sentencing for certain drug crimes went into effect. The details were hammered out back in April and July, and they could have been challenged by Congress. Thankfully, Congress declined to do so, and now the commission has a chance at helping nearly half of the 100,000 inmates in federal prison come home earlier than they otherwise would have.

For decades, the war on drugs rolled onward, leaving a pulpy mass of casualties in its wake. But since at least 2012, when Colorado and Washington state legalized recreational use of marijuana, there has been some serious strides against this dangerous domestic policy. Generally, however, any progress made on drugs has been confined to changing the legality of substances....

Even the tentative, good-but-not-good-enough Fair Sentencing Act, which reduced the sentencing disparity between crack and cocaine in 2010, was initially not retroactive until the USSC voted to make it so.... The USSC is doing something more substantial still with their new guidelines, which allow for retroactive petitioning for reduced time in prison starting in November 2015. Prisoners may begin petitioning for these reductions now, however. Unfortunately, those sentences cannot fall below the mandatory minimums, which can only be changed by Congress. Ideally, the Justice Safety Valve Act, introduced by Sens. Rand Paul (R-Ky.) and Patrick Leahy (D-Vt.), which would give judges more flexibility to depart from mandatory minimums, will be eventually signed into law, allowing for some of the damages wrought by these mandatory sentences to be mitigated.

In addition, even though the sentencing reforms help the federal prison population, we are very far from instituting anything as optimistic on a statewide level. Most of the some-400,000 state prisoners in jail on drug-related crimes are out of luck unless they get individual commuting of their sentences.

As the war on drugs loses popularity, the question of what to do about the lives ruined and interrupted is going to come up again and again. One of the more fascinating, though politically unrealistic suggestions for what to do about this mess is one offered by a Green Party candidate for governor of New York: Howie Hawkins suggests releasing all drug prisoners, and putting together a “panel on reconciliation” between them and their communities and governments. They want voting rights restored, school grants restored, help for children of the former cons, and prevention of would-be employers asking about criminal histories. They even suggest full-on reparations for “the communities affected.”

This won’t pass muster, probably not even in the most liberal states. The slow reforms being offered by the USSC, and criminal justice advocates like Sen. Paul might be all we get. But the reparations idea does present a question of what society should do after the madness of a moral panic dims, and the end result turns out to be 2.3 million people in prison or jail. Most people wouldn’t object to a payment to any of the 147 people freed from death row, especially those who turned out to be unequivocally innocent. What happens when we realize that neither possessing nor selling drugs is a real criminal act? Doesn’t that suggest that we have a lot of innocent people in prison who will need a lot of help in restarting their lives?

November 3, 2014 in Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Judge Rakoff highlights prosecutorial sentencing power in explaining "Why Innocent People Plead Guilty"

Download (2)Regular readers know that US District Judge Jed Rakoff has become a prominent regular critic of many aspects of the modern federal criminal justice system. In the latest issue of The New York Review of Books, Judge Rakoff provides an astute and effective review of how prosecutors have come to possess considerable unregulated sentencing powers in our modern system dominated by plea bargainiang.  His lengthy article's title, "Why Innocent People Plead Guilty," spotlights one key aspect of Judge Rakoff's concerns with the current system.  But, as these passages reveal, his central theme in this must-read piece is unregulated prosecutorial powers:

The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”  The Constitution further guarantees that at the trial, the accused will have the assistance of counsel, who can confront and cross-examine his accusers and present evidence on the accused’s behalf. He may be convicted only if an impartial jury of his peers is unanimously of the view that he is guilty beyond a reasonable doubt and so states, publicly, in its verdict.

The drama inherent in these guarantees is regularly portrayed in movies and television programs as an open battle played out in public before a judge and jury. But this is all a mirage.  In actuality, our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight.  The outcome is very largely determined by the prosecutor alone....

Until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved — unless, of course, the defendant was willing to enter into a plea bargain.  If, however, the defendant wants to plead guilty, the prosecutor will offer him a considerably reduced charge — but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources).  Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higher-level offense than the one offered at the outset of the case.

In this typical situation, the prosecutor has all the advantages. He knows a lot about the case (and, as noted, probably feels more confident about it than he should, since he has only heard from one side), whereas the defense lawyer knows very little.  Furthermore, the prosecutor controls the decision to charge the defendant with a crime. Indeed, the law of every US jurisdiction leaves this to the prosecutor’s unfettered discretion; and both the prosecutor and the defense lawyer know that the grand jury, which typically will hear from one side only, is highly likely to approve any charge the prosecutor recommends.

But what really puts the prosecutor in the driver’s seat is the fact that he — because of mandatory minimums, sentencing guidelines (which, though no longer mandatory in the federal system, are still widely followed by most judges), and simply his ability to shape whatever charges are brought — can effectively dictate the sentence by how he publicly describes the offense.  For example, the prosecutor can agree with the defense counsel in a federal narcotics case that, if there is a plea bargain, the defendant will only have to plead guilty to the personal sale of a few ounces of heroin, which carries no mandatory minimum and a guidelines range of less than two years; but if the defendant does not plead guilty, he will be charged with the drug conspiracy of which his sale was a small part, a conspiracy involving many kilograms of heroin, which could mean a ten-year mandatory minimum and a guidelines range of twenty years or more. Put another way, it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision.

Long-time readers know that this article gets to the heart of debates that Bill Otis and I have often had over the virtues and vices of mandatory minimum sentencing provisions. Because Judge Rakoff comes down on my side of this debate, few should be surprised to hear that I am a big fan of this article (though I wish Judge Rakoff had also discussed and lamented how acquitted conduct sentencing rules in the federal system further enhances prosecutors' charging/plea/sentencing powers).

Prior related posts on Judge Rakoff's commentaries:

November 3, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Thursday, October 30, 2014

Notable criticism of Pope's advocacy against LWOP and "nurturing mommy" approach to government

9780829441703_p0_v2_s260x420As noted in this post last week, Pope Francis spoke out last week against life imprisonment and harsh sentencing systems focused more on punishment than social justice.  This intriguing new American Spectator commentary by Mark Tooley takes issue with this papal advocacy, and concludes with complaints about governments failing to balance a "nurturing mommy" role with a "stern father role." Here are excerpts from an interestinf read:

Opposing life imprisonment raises questions. Should mass murderers be freed during their active lifetime? And what if they show no sign of remorse or rehabilitation? (My questions come respectfully from a Protestant who appreciates Catholic teaching.)

The Pope’s remarks acknowledged that official Catholic teaching still accepts the state’s rightful power to execute, quoting the Catechism that “the traditional teaching of the church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.” News reports say he quoted the Catechism that “cases in which the execution of the offender is an absolute necessity are very rare, if not practically nonexistent.” It is not clear but presumably he also included the Catechism phrase immediately before those words, which cites the “possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm.”

What power does the state have for “rendering one who has committed an offense incapable of doing harm” except for the option of life imprisonment for recalcitrant murderers? It seems unlikely that many Americans, Catholic or otherwise, will advocate abolishing life imprisonment for heinous crimes. But recently Colorado’s pro-death penalty Republican gubernatorial candidate, a Catholic, recalled that Denver’s former bishop, Charles Chaput, had assured him that church doctrine is not against the death penalty....

The subtleties of Catholic teaching on capital punishment are difficult to translate into media sound bites or political explanations. Pope Francis’s comments against life imprisonment seem to go beyond the letter of the Catechism. Some activist American religionists, Catholic or otherwise, may latch on to them for a new campaign. But such an effort potentially would provoke a backlash and embolden defense of the death penalty.

Much of the American religious political witness today is totally uncomfortable with the state’s divine vocation for punitive action, much less lethal force. The New Testament offers little direct counsel on civil government’s responsibilities except, in St. Paul’s Romans 13, which warns that that “if you do wrong, be afraid, for rulers do not bear the sword for no reason. They are God’s servants, agents of wrath to bring punishment on the wrongdoers.” This language is pretty punitive.

But so much of modern American religious political witness prefers a highly non-punitive version of government. Their preferred vision likens the state to an indulgent, nurturing mommy, whose primary role is to feed, clothe, and ensure health care for all her children, while also welcoming all illegal immigrants, protecting the environment, lecturing against politically incorrect “hate speech,” and offering universal love, while simultaneously disarming in a way ironically that likely inhibits physical protection for her children.

Most of this mommy work the Scriptures and Christian tradition actually assign chiefly to the church, which is metaphorically a mother and the Bride of Christ. The Romans 13 focus for the state more resembles a stern father, who dispenses impartial but severe justice for the protection of his children. This sort of paternal state, unlike the sensitive mommy, reserves its interventions for dangerous misconduct. And it lets its charges pick themselves up from their stumbles, that they might grow strong, not remain immature through ceaseless coddling.

A true balance in society aligns nurturing mommy with stern father, both fulfilling their complementary roles in creation. The absence of one distorts human reality and creates corruption and tragedy. Pope Francis doubtless has earnest reasons for speaking against even life imprisonment. But his sentiments will likely only inspire the chronic mommy vision of the state already preferred by so many do-gooding religionists.

Religious leaders need to restore balance by citing Romans 13 and explaining the punitive, morally imperative stern father role of the state that is divinely ordained and essential for human justice.

Prior related post:

October 30, 2014 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (6) | TrackBack

Monday, October 27, 2014

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

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

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

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

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

Friday, October 24, 2014

Unpacking the reasons given for public support and opposition to the death penalty

Gallup now has published this intriguing piece, headlined "Americans: 'Eye for an Eye' Top Reason for Death Penalty," which provides some interesting additional insights concerning Gallup's latest polling data on support for capital punishment (reported here).  Here are some of the highlights:

Americans who favor the death penalty most often cite "an eye for an eye" as the reason they hold their position, with 35% mentioning it. "Save taxpayers money" and "they deserve it" tie as the second-most-popular reasons Americans volunteer in this open-ended measure, at 14% each....

This is the fourth time Gallup has probed Americans to state, in their own words, why they hold the position they do on the death penalty. Americans who say they support the death penalty have given a variety of responses over the years, but the biblical phrase "an eye for an eye," or retaliation, consistently has been named as the No. 1 reason why the death penalty should be applied. However, this reason's pre-eminence has waned since Gallup first asked this question in 1991, when half of Americans who favor the death penalty mentioned it....

While a majority of Americans tilt in favor of the death penalty, the one in three Americans who oppose it also have a diversity of views as to why the ultimate penalty should not be used. "Wrong to take a life" has been the top reason for opposing it since 1991, by comfortable margins.

In two of the three times Gallup has asked this question, "persons may be wrongly convicted" has been the No. 2 justification Americans give for opposing the death penalty, along with reasons grounded in religious beliefs, including that "punishment should be left to God." Yet "wrong to take a life" is still the most popular open-ended response by a more than 2-to-1 margin.

Over at Crime & Consequences, Kent Scheidegger has an extended discussion of what these results should help us understand about modern death penalty perspectives and arguments.  Here is how that post finishes up:

Most folks make up their minds on justice and morality. These positions are largely undebatable. One who believes that executing Ted Bundy was fundamentally right and reducing Charles Manson's sentence to life was fundamentally wrong isn't going to change his mind, and the person who believes the opposite isn't going to change his either.

The utilitarians are a minority, but a substantial one.  That is where the people who might change their minds based on data and arguments are, so that is where the arguments are directed.

October 24, 2014 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack

Thursday, October 23, 2014

"How Changes in American Culture Triggered Hyper-Incarceration: Variations on the Tazian View"

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

American imprisonment rates are far higher than the rates in virtually every Western country, even after taking into account differing rates of crime.  The late Professor Andrew Taslitz suggested that at least one explanation for this puzzle is the relative lack of “populist, deliberative democracy” in the United States.

This article, written for a symposium honoring Professor Taslitz, examines that thesis from a comparative perspective, looking in particular at how differences between American and European attitudes toward populism, capitalism, religiosity, racial attitudes and proceduralism may have led to increased incarceration rates.  It also tries to explain another puzzle that has received little attention: why these cultural differences, which have existed for some time, only had an impact on incarceration rates after the 1960s.

October 23, 2014 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (6) | TrackBack

Pope Francis now advocating for total abolition of LWOP sentences as well as the death penalty

As reported in this story from the Catholic News Service, the leader of the Catholic Church can now be added to the list of persons vocally advocating against life without parole sentences.  Here are the details:

Pope Francis called for abolition of the death penalty as well as life imprisonment, and denounced what he called a "penal populism" that promises to solve society's problems by punishing crime instead of pursuing social justice.

"It is impossible to imagine that states today cannot make use of another means than capital punishment to defend peoples' lives from an unjust aggressor," the pope said Oct. 23 in a meeting with representatives of the International Association of Penal Law.

"All Christians and people of good will are thus called today to struggle not only for abolition of the death penalty, whether it be legal or illegal and in all its forms, but also to improve prison conditions, out of respect for the human dignity of persons deprived of their liberty. And this, I connect with life imprisonment," he said. "Life imprisonment is a hidden death penalty." The pope noted that the Vatican recently eliminated life imprisonment from its own penal code.

According to the Catechism of the Catholic Church, cited by Pope Francis in his talk, "the traditional teaching of the church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor," but modern advances in protecting society from dangerous criminals mean that "cases in which the execution of the offender is an absolute necessity are very rare, if not practically nonexistent."...

The pope denounced the detention of prisoners without trial, who he said account for more than 50 percent of all incarcerated people in some countries. He said maximum security prisons can be a form of torture, since their "principal characteristic is none other than external isolation," which can lead to "psychic and physical sufferings such as paranoia, anxiety, depression and weight loss and significantly increase the chance of suicide." He also rebuked unspecified governments involved in kidnapping people for "illegal transportation to detention centers in which torture is practiced."

The pope said criminal penalties should not apply to children, and should be waived or limited for the elderly, who "on the basis of their very errors can offer lessons to the rest of society. We don't learn only from the virtues of saints but also from the failings and errors of sinners."

Pope Francis said contemporary societies overuse criminal punishment, partially out of a primitive tendency to offer up "sacrificial victims, accused of the disgraces that strike the community." The pope said some politicians and members of the media promote "violence and revenge, public and private, not only against those responsible for crimes, but also against those under suspicion, justified or not."

He denounced a growing tendency to think that the "most varied social problems can be resolved through public punishment ... that by means of that punishment we can obtain benefits that would require the implementation of another type of social policy, economic policy and policy of social inclusion." Using techniques similar to those of racist regimes of the past, the pope said, unspecified forces today create "stereotypical figures that sum up the characteristics that society perceives as threatening."

October 23, 2014 in Purposes of Punishment and Sentencing, Religion, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, October 22, 2014

Does new DOJ appointee want to decriminalize all drug possession ... and would that be so bad?

The questions posed by the title of this post are prompted by this recent commentary authored by Cully Stimson and titled "The New Civil Rights Division Head Wants to Decriminalize Possession of All Drugs." Here are excerpts:

So who supports decriminalizing cocaine, heroin, LSD, methamphetamine, ecstasy and all dangerous drugs, including marijuana? No, it’s not your teenage nephew. It’s President Obama’s new acting head of the Justice Department’s Civil Rights Division, Vanita Gupta. In 2012, Gupta wrote that “states should decriminalize simple possession of all drugs, particularly marijuana, and for small amounts of other drugs.” (Emphasis mine).

Last week, President Obama appointed Vanita Gupta to the position of acting head. According to the Washington Post, the administration plans to nominate her in the next few months to become the permanent assistant attorney general for the Civil Rights Division. Her views on sentencing reform – a bi-partisan effort in recent years – have earned her qualified kudos from some conservatives. But her radical views on drug policy – including her opinion that states should decriminalize possession of all drugs (cocaine, heroin, LSD, ecstasy, marijuana etc.) should damper that support of those conservatives, and raise serious concerns on Capitol Hill....

To begin, she believes that the misnamed war on drugs “is an atrocity and that it must be stopped.” She has written that the war on drugs has been a “war on communities of color” and that the “racial disparities are staggering.” As the reliably-liberal Huffington Post proclaimed, she would be one of the most liberal nominees in the Obama administration.

Throughout her career, 39-year old Gupta has focused mainly on two things related to the criminal justice system: first, what she terms draconian “mass incarceration,” which has resulted in a “bloated prison population, and second, the war on drugs and what she believes are its perceived failures.

She is particularly open about her support for marijuana legalization, arguing in a recent CNN.com op-ed that the “solution is clear: …states could follow Colorado and Washington by taxing and regulating marijuana and investing saved enforcement dollars in education, substance abuse treatment, and prevention and other health care.”...

But Gupta does not stop with marijuana. In calling for all drugs to be decriminalized – essentially legalizing all dangerous drugs – Gupta displays a gross lack of understanding of the intrinsic dangers of these drugs when consumed in any quantity.

Heroin, LSD, ecstasy, and methanqualone are Schedule I drugs, which are defined as “the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence.” Cocaine, methamphetamine, Demerol and other drugs are Schedule II drugs, defined as “drugs with a high potential for abuse…with use potentially leading to severe psychological or physical dependence.”

Sound public policy must be based on facts, not radical unsafe, and dangerous theories.

I concur 100% with the statement at the end of this commentary that "sound public policy must be based on facts," and that it why I am more than a bit troubled that this commentary quite false asserts that Gupta's seemingly reasonable suggestion that persons should not be deemed criminals for possessing a small amount of a narcotic is tantamount to advocacy for "legalizing all dangerous drugs."

The term "decriminalize" in this context means to treat in a less-serious regulatory manner like we treat traffic offenses. Nobody would assert that we have "essentially legalized" all speeding and other traffic offenses because we only respond to the offense with fines and limited criminal sanctions. Likewise, advocacy for decriminalizing simple possession of small amounts of drugs is not the equivalent of endorsing a fully legalized marketplace for drugs comparable to what we are seeing in a few states now with marijuana.

That all said, I think Vanita Gupta's suggestion that states decriminalize simple possession of drugs as a way to de-escalate the drug war, as well as Cully Stimson's obvious concerns with such a suggestion, are very legitimate issues for engaged political and public policy debate.  (For the record, I would generally support most state drug-decriminalization efforts, though I also would generally advocate that criminal sanctions kick in based on possession of larger dealer-size quantities of certain drugs.)   I am pleased to see this commentary, even in a effort to assail a new DOJ nominee, start to bring overdue attention to these important modern drug-war issues.  But I hope in the future Mr. Stimson and others will make and understand the important distinction between advocating for decriminalization and advocating for full legalization.

October 22, 2014 in Drug Offense Sentencing, Offense Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, October 21, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Previous related post:

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