Sentencing Law and Policy

Food for crime-fighting thought

These two recent notable article provide reasons to ponder the possibility that sentencing policies need not, and perhaps should not, be the primary way in which we try to fight crime:

• From The Economist, this piece describes success in the battle against meth by noting, inter alia, that "[w]hen Safe Streets, a community group, asked pupils to design their own anti-drug posters, many emphasised cosmetic hazards over chemical ones."

• From The New York Times Magazine, this piece describes efforts to deal with urban violent crime through a disease-treatment philosophy: "Zale Hoddenbach, who works for an organization called CeaseFire, is part of an unusual effort to apply the principles of public health to the brutality of the streets."

Deep weekend thoughts from SSRN

What looks like a deep and interesting paper for weekend reading can be found here via SSRN.  The paper is titled "Facing the Consequences: The Abolitionist Challenge," and here is the abstract:

I argue that standard consequentialist considerations offered in support of punishment make for a weaker case than is usually assumed.  This is because consequentialist arguments for punishment rely on an overly broad conception of punishment that overlooks some of punishment's essential characteristics.  I argue in favor of a narrower conception that highlights the possibility of substantive, non-punitive alternatives to punishment capable of securing many of the same good consequences as punishment. In light of this possibility, I argue, Abolitionism, the view that punishment is unjustified, poses a serious challenge to consequentialist justifications of punishment.

Notable new Urban Institute report on treating drug-involved offenders

A helpful reader pointed me to a new report from the Urban Institute, titled "To Treat or Not to Treat: Evidence on the Prospects of Expanding Treatment to Drug-Involved Offenders."  The full report is available at this link, and here is the abstract:

Despite a growing consensus among scholars that substance abuse treatment is effective in reducing recidivism, strict eligibility rules have limited the impact of current models of therapeutic jurisprudence on public safety.  This research effort was aimed at providing policy makers some guidance on whether expanding this model to more drug-involved offenders is cost-beneficial.  We find that roughly 1.5 million arrestees who are probably guilty (the population most likely to participate in court monitored substance abuse treatment) are currently at risk of drug dependence or abuse and that several million crimes could be averted if current eligibility limitations were suspended and all at-risk arrestees were treated.

Feds agree to probation for tax cheat billionaire!?!?!

After seeing this story at Forbes, headlined "U.S. Agrees Guilty Billionaire Shouldn't Go to Jail," I may have to rethink my assumption that federal prosecutors never are willing to go soft on any white-collar criminals.  Here are the details:

[T]he sentencing of billionaire Orange County real estate developer Igor M. Olenicoff, scheduled to take place in a federal court in California April 14, might not make for good scared-straight headlines. In a new court filing, government prosecutors agree that Olenicoff, who pleaded guilty in December to one felony count of filing a false 2002 U.S. individual income tax return, should get off on probation.

In his plea agreement, Olenicoff, 65, admitted he lied on his 1998 through 2004 tax returns when he answered "no" to a question asking if he had ownership or authority over any financial accounts in foreign countries.  In fact, he had accounts in the Bahamas, Switzerland, Liechtenstein and Britain. As part of the plea deal, Olenicoff paid $52 million in back federal taxes, interest and civil fraud penalties and agreed to bring all the money in his foreign accounts (believed to total in the hundreds of millions) back to the U.S.

Forbes estimates the self-made, Russian-born Olenicoff, who came to the U.S. at age 15, is now worth $1.6 billion.  While the false-tax-return charge is punishable by up to three years in jail, Olenicoff's deal with prosecutors, together with federal sentencing guidelines, made it unlikely he would get more than six months.  Then last month, a U.S. probation officer filed a pre-sentencing report recommending Olenicoff get off with just one year of probation and a $3,500 criminal fine.  While that report is not a public document, prosecutors' response to it is.

In a filing this week, prosecutors said they didn't object to probation, but urged that the probation last three years--to ensure Olenicoff's "future compliance with Internal Revenue laws. " The prosecutors noted that while Olenicoff has fully complied with the terms of his plea deal, his "use of off-shore bank accounts and the transferring of assets to these accounts dates back to at least 1992."

Edward M. Robbins Jr., Olenicoff's attorney, said the prosecutors' position makes it "highly unlikely" that the judge will sentence Olenicoff to any prison time, although he still might order home detention. But Robbins, a former federal tax prosecutor who is now a partner with Hochman, Salkin, Rettig, Toscher & Perez, in Beverly Hills, rejected any suggestion that Olenicoff is getting off lightly and insisted the felony conviction alone would indeed have a strong deterrent effect.

I think what irks me about this story is the idea that a defendant apparently worth $1.6 billion is going to only face a fine of a few thousand dollar.  Especially if he is to avoid all prison time, how about a fine of, say, .1% of his worth.  Even letting this fellow keep 99.9% of his fortune could still produce a more fitting fine of $1.6 million.  Also, how about some community service requiring him to help low and middle income tax payers set up lawful tax shelters?

You make the call: what is a just and effective sentence for Sister Barbara Markey?

Since most judges likely have no experience sentencing nuns, I hope readers will use the comments to help out the Nebraska judge who will soon have to sentence Sister Barbara Markey.  Here is the AP story providing the background:

A Roman Catholic nun accused of stealing from the Omaha Archdiocese and gambling much of the money away has pleaded guilty to theft.  An attorney says Sister Barbara Markey pleaded Monday to theft of more than $1,500.  Defense attorney J. William Gallup says she also agreed to pay $125,000 in restitution.

Markey faces up to 20 years in prison when she is sentenced in July.

Markey is an internationally known speaker.  She was fired in 2006 as director of the archdiocese's family life office after an audit found irregularities. The audit found that Markey spent $307,545 for her own use or without documentation.  Prosecutors say Markey used the money to cover gambling forays, gifts and trips.

Regular readers will not be surprised to hear that I do not think a long prison term makes much sense for Sister Barbara Markey.  But I am still thinking about what would make sense.  Suggestions, dear readers?

James Wilson questions whether society gets as much from universities as it does from prisons

Thanks to this great post at Grits, I saw this notable op-ed in the Los Angeles Times by James Q. Wilson, headlined "Do the time, lower the crime."  Scott does a great job in his post highlighting "a few of the overstatements and obfuscations" in Wilson's criticisms of study by the Pew Center on the States regarding America's high incarceration rate. 

Rather than jump on the criticism bandwagon, let me quote a few notable paragraphs from the long Wilson op-ed that highlight there is both good and bad in Wilson's observations about the Pew research:

You cannot make an argument about the cost of prisons without taking into account the benefit of prisons. The Pew report makes no effort to do this. Instead, it argues that spending on prisons may be crowding out spending on education.  For instance, tax dollars spent on higher education in the U.S. have increased much more slowly than those spent on corrections.  The report does not ask whether the slower growth may be in part because of the sharp increase in private support for public universities, much less whether society gets as much from universities as it does from prisons.

But Pew rightly points to problems in the nation's imprisonment policy and in what it does (or, typically, doesn't do) to prevent crime in the first place.  Take California.  It has failed to manage well the health -- especially the mental health -- problems of many of its inmates. Federal judges are in the process of imposing tough new rules to rectify the problem.  Nor has the state found good ways to integrate former inmates back into society.  Instead, parole officers routinely send people back to prison if they misbehave -- and sometimes the return orders are for minor violations.

California does not handle drug offenders wisely either.  Just how big this problem is remains uncertain because some inmates involved in serious crimes plead out to drug offenses to avoid tougher prison sentences.  For serious drug users who have not committed a major crime, the goal should be to get them into a community treatment program and keep the offenders there.

Sentencing perspectives from across the pond

These two interesting articles provide two interesting sentencing perspectives from across the pond:

• From The Guardian here, "Too-tough judges out of touch, says Straw"
• From The Economist here, "Rehabilitating prisoners: A new deal"

Who is trying to count sentencing mistakes?

Writing in the New York Times, Adam Liptak's "Sidebar" column today is headlined "Consensus on Counting the Innocent: We Can't."  Here are snippets:

A couple of years ago, Justice Antonin Scalia, concurring in a Supreme Court death penalty decision, took stock of the American criminal justice system and pronounced himself satisfied. The rate at which innocent people are convicted of felonies is, he said, less than three-hundredths of 1 percent — .027 percent, to be exact. That rate, he said, is acceptable. “One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly,” he wrote. “That is a truism, not a revelation.”

But there is reason to question Justice Scalia’s math.  He had, citing the methodology of an Oregon prosecutor, divided an estimate of the number of exonerated prisoners, almost all of them in murder and rape cases, by the total of all felony convictions. “By this logic,” Samuel R. Gross, a law professor at the University of Michigan, wrote in a response to be published in this year’s Annual Review of Law and Social Science, “we could estimate the proportion of baseball players who’ve used steroids by dividing the number of major league players who’ve been caught by the total of all baseball players at all levels: major league, minor league, semipro, college and Little League — and maybe throwing in football and basketball players as well.”

Joshua Marquis, the Oregon prosecutor cited by Justice Scalia, granted the logic of Professor Gross’s critique but not his conclusion. “He correctly points out,” Mr. Marquis, the district attorney in Clatsop County, Ore., said of Professor Gross, “that rape and murders are only a small percentage of all crimes, but then has absolutely no real data to suggest there are epidemic false convictions in, say, burglary cases.”

What the debate demonstrates is that we know almost nothing about the number of innocent people in prison. That is because any effort to estimate it involves extrapolation from just two numbers, neither one satisfactory....  We are left with an uneasy agreement between Professor Gross and Mr. Marquis on at least one point.  “Once we move beyond murder and rape cases,” Professor Gross wrote, “we know very little about any aspect of false conviction.” 

But a few general lessons can be drawn nonetheless. Black men are more likely to be falsely convicted of rape than are white men, particularly if the victim is white.  Juveniles are more likely to confess falsely to murder.  Exonerated defendants are less likely to have serious criminal records.  People who maintain their innocence are more likely to be innocent. The longer it takes to solve a crime, the more likely the defendant is not guilty.

Regular readers will not be surprised to hear that, though I am sympathetic to concerns about the rate and nature of wrongful convictions, I am even more concerned about the rate and nature of wrongful sentencing.  Unfortunately, I do not think anyone is trying to track or even understand the problem of wrongful sentences.

Some (final?) thoughts on politics, prosecution and punishment

Reviewing today's headlines in the New York Times in my in-box, these two indirectly related items seemed to justify some criminal justice reflection and commentary:

• From the front page: U.S. Defends Tough Tactics With Spitzer: "The Justice Department used some of its most intrusive tactics against Eliot Spitzer, examining his financial records, eavesdropping on his phone calls and tailing him during its criminal investigation."

• From the op-ed page: After the End of the Affair: "Whatever Eliot Spitzer's and David Paterson's sins, just surviving infidelity in America may be punishment enough."

Especially in the wake of so many high-profile federal prosecutions for lying — ranging from Martha Stewart to Victor Rita to Scooter Libby to Barry Bonds — I found this passage from the op-ed intriguing:

We Americans are particularly preoccupied with honesty.  We're the only country that peddles the idea that "It's not the sex, it's the lying."  (In France, it's not the lying, it's the sex.)  America is also the only place I found that has a one-strike rule on fidelity: if someone cheats, the marriage is kaput. 

We might not strictly hold ourselves to this script, but we expect our politicians to follow it.  That's why people doubted that Bill and Hillary Clinton could have a "real" marriage if she stayed with him after the Lewinsky affair....

In my view, I actually think it is combination of the sex and the lying that really troubles most Americans.  Indeed, this combination proved deadly for Patrick Kennedy: he became the first person place on death row for a child rape offense in part because he refused to admit to his crime (Louisiana prosecutors likely would not have sought — and surely would not have secured — a death sentence had Kennedy admitted guilt).  Then again, Bill Clinton was involved in the sex and in the lying under oath all while being the President of the United States, and his only formal punishment ended up being the loss of his law license.  Hmmm.

Could tough three-strikes laws increase crime?

Thanks to this post at Volokh, I found this notable new paper from a Harvard researcher titled "I'd Rather Be Hanged for a Sheep than a Lamb: The Unintended Consequences of 'Three-Strikes' Laws."   Here is the abstract:

Strong sentences are common "tough on crime" tool used to reduce the incentives for individuals to participate in criminal activity. However, the design of such policies often ignores other margins along which individuals interested in participating in crime may adjust. I use California's Three Strikes law to identify several effects of a large increase in the penalty for a broad set of crimes. Using criminal records data, I estimate that Three Strikes reduced participation in criminal activity by 20 percent for second-strike eligible offenders and a 28 percent decline for third-strike eligible offenders. However, I find two unintended consequences of the law. First, because Three Strikes flattened the penalty gradient with respect to severity, criminals were more likely to commit more violent crimes. Among third-strike eligible offenders, the probability of committing violent crimes increased by 9 percentage points. Second, because California's law was more harsh than the laws of other nearby states, Three Strikes had a "beggar-thy-neighbor" effect increasing the migration of criminals with second and third-strike eligibility to commit crimes in neighboring states. The high cost of incarceration combined with the high cost of violent crime relative to non-violent crime implies that Three Strikes may not be a cost-effective means of reducing crime.

Brennan Lecture on a topic that the Justice surely would have cared about

As documented at this official site, Justice Michael Wolff focused on sentencing issues at NYU when giving the 14th Annual Justice Brennan Lecture on State Courts and Social Justice last month. Justice Wolff, who sits on the Missouri Supreme Court and is the Chairman of the state's Sentencing Advisory Commission, titled his lecture "Evidence-Based Judicial Discretion: Promoting Public Safety through State Sentencing Reform."  Here is how his lecture began:

Americans put more people behind bars per capita than any country in the western world. But this rate of incarceration is not necessarily helping to reduce crime. In fact, when we put the wrong people in prison, we make them — and the problem of crime — worse. As we come to realize this, hopefully a new way of thinking about sentencing will emerge that will focus on sentencing outcomes as a way to ensure that public safety is a top national priority.

Sentencing is a complex topic that needs to be approached with humility, an open mind and common sense. I believe we have the analytical tools available to help create a system that minimizes recidivism and maximizes public safety.

Sentencing delayed is sentencing reduced (with victim's help)

It is often said that justice delayed is justice denied, but this remarkable sentencing story from today's New York Times, headlined "4 Decades After Shooting, Effort to Make Punishment Fit the Crime," puts a different spin on that aphorism.  Here are snippets:

What punishment should be imposed on a man who shot a police officer almost 40 years ago and fled to Canada, but went on to live an upstanding life as a husband and father who worked in a library?

There was a rare answer here on Friday: Require him to give $250,000 to a foundation that helps the families of injured Chicago police officers.

Joseph Pannell, 58, who admits that he shot a police officer here in 1969, will serve just 30 days in jail and two years’ probation as part of a plea bargain that legal experts called extremely unusual.

The driving force behind the arrangement, both sides said, was the former Chicago police officer himself, Terrence Knox, whose right arm was permanently damaged by the shooting. “Something good had to come out of this,” Mr. Knox said Friday, after watching Mr. Pannell accept the deal during a hearing in a Cook County courthouse.  “The easy way out would have been to have a trial, and cost this county hundreds of thousands of dollars, have him go to jail, and cost the prison system hundreds of thousands of dollars,” Mr. Knox said.

Mr. Pannell, who was charged with aggravated battery, attempted murder and bail-jumping, could have faced up to 23 years in prison.  All but an aggravated battery charge were dropped....

Mr. Pannell’s lawyer declined to answer specific questions about the shooting. But previously, John Norris, a lawyer for Mr. Pannell in Canada, said he had acted in self-defense during a time of intense distrust between the Chicago police and African-Americans.  The Chicago police have said Mr. Pannell was a member of the Black Panther Party, though Mr. Pannell denies that....

Defendants in violent cases are rarely offered plea bargains that include large donations to charity instead of lengthy prison time, legal experts said. “It almost looks like a bribe,” said Ronald Allen, a professor of law at Northwestern University, who added that since the arrangement had the victim’s blessing, it might not be unreasonable.  “In a way, it’s recompense for exactly the kind of harm that he caused.”

Among other great lessons, this case provides yet another example of how robust attentiveness to the interests and desires of victims can often be a progressive and healthy aspect of a sound sentencing system.

What's just right in Kansas...

Proving yet again that the states are way ahead of the feds in figuring out how to do sentencing and corrections, this local article reports encouraging news from everyone's favorite bellwether state:

The percentage of Kansas inmates who commit new crimes while on supervised release has dropped significantly over five years.

The rate, which was a little more than 5 percent in 2002, fell to 2.2 percent last year, Corrections Secretary Roger Werholtz told lawmakers Monday.  He attributed the reduction to increased legislative funding for programs that supervise inmates after they leave prison, and more dollars for alcohol and drug treatment.

Werholtz said that with fewer offenders returning to prison, the number of inmates in Kansas prisons has decreased from 9,153 in 2004 to 8,854 in mid-2007. “There is sufficient (prison) capacity to meet our needs for the next 10 years,” Werholtz told the House Appropriations Committee. However, he said that prediction assumed that the Legislature would not pass new sentencing laws that would put more offenders in prison. “During the last week of January, the prison population fell below 8,700, which was the first time that had been done since July, 2002,” he said.

Werholtz praised the passage last year of SB 14, which enacted a grant program to encourage community corrections programs to reduce revocation rates at least 20 percent.  The law also reduced sentences by 60 days for offenders who complete job training and drug abuse programs in prison.  Rep. Pat Colloton, the Leawood Republican who sponsored the House legislation, said the goal was to save money and rehabilitate criminals by preventing return trips to prison.

Lies, damned lies, and recidivism statistics

Thanks to this post at Sex Crimes, I see that the Numbers Guy at the Wall Street Journal has this effective post asking the important question "How Likely Are Sex Offenders to Repeat Their Crimes?" and this related print story about the challenges of getting accurate data on sex offender recidivism.  Here are snippets of the blog post from the Numbers Guy:

In debates over laws monitoring released sex offenders, it’s common to hear claims that they’re sure to commit more sex crimes.... But as my print column this week points out, the numbers don’t bear this out.  Recidivism rates vary widely depending on which crimes are counted, the timeframe of the studies, and whether repeat offenses are defined by convictions, arrests, or self-reporting.  But even the author of a widely published report suggesting a recidivism rate of 52%, Wisconsin psychologist Dennis Doren, told me of the notion that all sex criminals are likely to re-offend, “There is no research support for that view, period.” ...

The conventional wisdom on sex-crime recidivism, coupled with high-profile sex crimes against children, has helped spur the spate of registry and neighbor-notification laws, even before they could be properly studied for their impact on recidivism rates. Several researchers, including Dr. Doren, say that residency-restriction laws may be counterproductive. Such a constraint “drives them out of their community, and leads to a lack of stability,” said Karen J. Terry, a criminologist at John Jay College in New York. “Those are some of the underlying conditions that caused them to abuse in the first place.” A consensus on how to measure recidivism, and determine its baseline rate, would help evaluate such laws.

This research is expensive and long-term follow-ups are, by definition, slow to produce results.  Even if we were to know whether rates have declined in recent years, it would be difficult to isolate the cause.  Dr. Doren proposes several alternate explanations for his perception that rates have declined in recent years, including better and more frequent treatment, and closer monitoring.

Critically, the challenging issues spotted by the Numbers Guy attend not only to sex offender recidivism.  The US Sentencing Commission did some very interesting work on recidivism a few years ago (see here and here and here), which found among other things that the recidivism predictor used by the the US Parole Commission two decades ago "is a statistically better recidivism risk prediction instrument than" the criminal history categories incorporated by the Sentencing Commission into the sentencing guidelines.

What's most disconcerting, however, is the common reality that even perfect crime rate studies and data about recidivism cannot alone significantly alter the public viewpoints and political debates.  As we often see in the context of the death penalty, statistical realities and empirical debates often serve —perhaps sometimes just unconsciously —  as cover for the expression of other normative concerns.  Though I sincerely hope lots of smart folks will continue crunching public safety numbers, policy advocates need to invest more time in thinking about how to effectively operationalize solid data insights into sound sentencing reforms.

Seeing the (inevitable) light on faith-based prisons and re-entry programs

I have long been intrigued by — and an agnostic supporter of — faith-based prison and re-entry programs, largely because these programs emphasize the rehabilitative needs and potential of criminal offenders when politicians only want to posture about being the toughest on criminals.  Consequently, I found heartening and telling this op-ed in today's New York Times, headlined "The Faith to Outlast Politics."  Here are a few excerpts:

In his State of the Union address Monday evening, President Bush asked Congress to permanently extend the federal laws permitting religious nonprofit organizations to compete for federal grants.  Seven years ago this week, Mr. Bush started his faith-based initiative. He promised to build on these “charitable choice” laws, which were begat by bipartisan compromises between President Bill Clinton and Senator John Ashcroft. “Government cannot be replaced by charities,” Mr. Bush declared, “but it should welcome them as partners, instead of resenting them as rivals.”...

[But over] the past six years, federal grants to faith-based programs have shifted away from the local “armies of compassion” praised by Mr. Bush and toward large, national organizations with religious affiliations.  Every nonpartisan study has concluded that the initiative has not delivered the grants, vouchers, tax incentives and other support for faith-based organizations that the president originally promised.... President Bush has promised much. It will be left to the next president to deliver on those promises.

The good news is that every major presidential candidate seems open to doing just that.  Hillary Clinton has declared that there is no contradiction between “support for faith-based initiatives and upholding our constitutional principles.”  John McCain has supported the idea especially as it relates to improving educational programs for disadvantaged children.  Barack Obama describes faith-based programs as a “uniquely powerful way of solving problems” especially where former prisoners and substance abusers are concerned.  When he was governor of Massachusetts, Mitt Romney created his own faith-based office.

Politicians from both parties have come to realize that faith-based programs are indispensable even if they are not miraculous.  America’s churches, synagogues, mosques and other congregations supply dozens of major social services — like day care, homeless shelters and anti-violence programs — worth billions of dollars each year, as Ram Cnaan, a professor of social work at the University of Pennsylvania, has proved in several studies. Dr. Cnaan is not even counting the work done by inner-city religious schools and other local faith-based programs.  From coast to coast, the primary beneficiaries of these services are low-income children and families who are not otherwise affiliated with the religious nonprofit organizations that serve them....

Increasingly, governors and mayors, with or without Washington’s help, are on the case.  Since 2001, governors by the dozens and over a hundred mayors have started faith-based initiatives on their own. In numerous places, the initiatives have persisted through changes in administrations and party control — further evidence for the emerging political consensus in favor of using public dollars to support faith-based organizations.  The ideological disputes that infect inside-the-Beltway debates over the separation of church and state have little life in cities where what gets accomplished (or not) in juvenile justice, health care and other social services is a visible, life-and-death drama.

Though not focused specifically on faith-based prison and re-entry programs, this op-ed sheds light on all the different forces that make such programs inevitable in the years ahead.  As this story from NPR spotlights, states from coast-to-coast are facing "looming budget shortfalls" and prison/corrections costs are among the largest budget items for so many states.  Governors and mayors will surely turn to faith-based ports during this economic storm, particularly to provide services to offender populations that won't be able to preserve public funds through the usual political process.  Thus, the faith-based realities here will likely become another manifestation of my new slogan, "It's the prison economy, stupid."

Some related posts on faith-based prison programs:

• Is faith the best thing to happen to prisons since ... the faithful started prisons?
• Interesting Ohio report on correctional faith-based initiatives
• Another report tentatively praising faith-based prisons
• The virtues of faith-based prisons
• Interesting examination of faith-based prison movement
• A thoughtful, but disappointing, attack on a faith-based prison program
• Religion, sentencing and corrections
• Having faith in prisons
• How the media can do better: ask the candidates tough crime and punishment questions

Are victims' rights at sentencing a distinctively Muslim concern?

Regular readers know that I find fascinating the connections between religion and sentencing, and thus I read with great interest a new article from renown federal judge Jack Weinstein in the Touro Law Review, titled "Does Religion Have a Role in Criminal Sentencing?". There are many interesting facets of this article (which I cannot find free on-line), but these passages really caught my attention:

The effect of religion on sentencing in the United States has been subtle, discreet, and indirect.... Religiously-based attitudes do influence the criminal law in our diverse society.  There is a constant struggle in our country to balance secularism and sectarianism.... 

This year I have three female law clerks. One is orthodox Jewish, one is Christian and one is Muslim.  I put to them the question: Can you briefly describe the effect of the Old Testament, the New Testament, and the Koran, respectively, on your view of sentencing?....

My Muslim clerk noted: Sentencing under Islamic law provides a greater role to the victim than mere exhortation.  For example, the sentence of death typically imposed for murder may be commuted if the victim's family agrees to accept a payment of money (known in Arabic as "diyah") in lieu of the murderer's life. This structure is typical of Islamic punishment: a strict sentence is imposed, which victims alone have the power to soften.

I agree with the underlying premise, which is that the most legitimate and enduring source of leniency is forgiveness by those who have been wronged. Like judges in the United States' system, victims are guided in their sentencing role by certain legislative principles set out in the Qur'an, which urge understanding and forbearance.  For example, the Qur'an states that the recompense of an evil deed is the like thereof, but whoever forgives and amends shall have his reward from God...

Interestingly, the Muslim approach represents the newest change in American sentencing. Under recent amendments to federal law, victims have a right to be heard during sentencing and restitution for economic losses must be provided. In death penalty cases the families of victims testify on the issue of capital punishment.

Before reading this article, I did not connect of the American victims' rights movement with Islamic theology.  Nevertheless, given that Judeo-Christian punishment philosophies tend to emphasize retribution (in the Old Testament) and redemption/rehabilitation (in the New Testament), concentrated concerns for crime victims' rights  may have a distinctively Muslin resonance. 

Who would of thought that Professor Paul Cassell left the federal bench (details here and here) to pursue legal interests that find distinct expression in the Qur'an?

Graphic scholarship critiquing deterrence theory

A kind reader sent along this picture (and this link to a larger version) from the cartoonist Ted Rall, which provides a cogent critique of classic deterrence theory.  Of course, deterrence theory has more to it than this cartoon suggests, but I am still moved to describe the cartoon as a great form of graphic scholarship on theories of punishment.

What golf rule reform can teach everyone about sentencing reform

A colleague who is a fellow golf nut sent me an e-mail from the US Golf Association announcing rule changes for 2008.  Here is the heart of the announcement:

2008/2009 Rules Of Golf:  Learn about the modifications to the Rules effective Jan. 1, 2008.  Changes to the Rules generally fall into two broad categories:

1. those that improve the clarity of the Rules
2. those that reduce the penalties in certain circumstances to ensure that they are proportionate.

Intriguingly, know that some of the most thoughtful persons working on sentencing issues are also golf nuts, and they are trying to improve the clarity of sentencing rules and trying to "reduce the penalties in certain circumstances to ensure that they are proportionate."  Indeed, given the mess that the Supreme Court and others have made of sentencing rules lately, perhaps this is a cosmic sign that the Justices and others working on sentencing law and policy need to hit the links a lot more (and, of course, invite me along).

Fascinating proportionality opinion from Oregon court

A helpful reader alerted me to a fascinating opinion from the Oregon Court of Appeals in Oregon v. Rodriguez, No. A131050 (Or. Ct. App. Dec. 26, 2007) (available here).  Both the underlying facts and the legal discussion in this case are noteworthy, and these lengthy excerpts provide only a small flavor of an opinion worth reading in full:

In early 2004, defendant [Victoria Rodriguez] was employed by the Hillsboro Boys and Girls Club to work with at-risk youths....  The victim was a member of the club....  On February 14, 2005, a staff member ... saw defendant and the victim in the game room at the club. There were approximately 30 to 50 youths and at least one other staff member in the room.  The victim, who had since turned 13, was sitting on a chair.  Defendant, who had since turned 25, was standing behind him, caressing his face and pulling his head back; the back of his head was pressed against her breasts.... The contact lasted approximately one minute....

Defendant was eventually charged with first-degree sexual abuse based on the incident.  A jury found defendant guilty....  At sentencing, the prosecutor asked the court to impose the 75-month sentence prescribed by ORS 137.700 (commonly referred to as "Measure 11").  Defendant objected, arguing that the Measure 11 sentence would be unconstitutionally excessive.  Numerous family members, friends, and coworkers testified in support of defendant.  The court agreed with defendant that a 75-month sentence would be cruel and unusual.  The court observed that defendant had no prior criminal record and that she had "lived an exemplary life" and had "really made a very positive impact into the lives of apparently many children * * *." It further noted that the touching occurred "in a crowded room, over clothing, [and was] not prolonged."  The court concluded that a 75-month sentence "just cries out" as being shocking to any reasonable person.  It imposed a 16-month sentence.  This appeal followed....

The state contends, among other things, that, given the nature of the relationship between defendant and the victim, the 75-month sentence mandated by Measure 11 would not shock the moral sense of all reasonable people....  We agree with the state that, given the nature of the relationship between defendant and the victim, there can be no doubt that the Measure 11 sentence would not shock the moral sense of all reasonable people.  It is undisputed that the victim was young and vulnerable, a prototypical "at-risk" youth. Defendant was in a position of trust and responsibility, akin to that of a teacher or youth counselor, charged with helping children make appropriate behavioral choices.  By engaging in sexual conduct with the victim, defendant seriously abused that trust.

In short, we cannot say that the 75-month sentence required under Measure 11 would shock the moral sense of all reasonable people as to what is right and proper under the circumstances.  It follows that the trial court erred in refusing to impose that sentence.

More on the trial penalty's impact in white-collar cases

A helpful reader sent me this column from the Financial Times that spotlights some of the trial penalty issues I recently discussed in this post.  Here is a snippet from the column:

The urge to find guilt has overwhelmed the presumption of innocence on which Anglo-Saxon justice is based....  Plea-bargaining is effective because of four salient features of American justice: the exceptional severity of punishment; the justified terror of what might happen in prison; the uncertain outcome of fighting cases before juries; and the possibility of obtaining a far lighter sentence by agreeing to pleas of guilty.

In the case of the NatWest three, the accused faced the possibility of up to 35 years in prison for their alleged offences.  It is a reflection of the gulf in culture that has grown up between the US and the UK that what are in effect life sentences might be imposed for their alleged involvement in helping Andrew Fastow, then Enron’s chief financial officer, defraud Enron.  Such a sentence would be far longer than all but the tiniest proportion of murderers could expect to serve in the UK.  Yet, apparently, it is regarded as perfectly reasonable in the US....

Now imagine that you might face such a sentence if found guilty.  Imagine, too, that you believed yourself innocent of all charges, but recognised the great complexity of the case and the ease with which a prosecutor might twist evidence against you before an uninformed (perhaps prejudiced) jury.  You might suppose you had a one-in-five chance of being found guilty.  That would be particularly plausible if you had run out of financial resources and so were unable to retain a first-rate legal team.  What would you do if the prosecutors offered a plea bargain, under which you would serve just 37 months in prison in your home country (and pay $7.3m in restitution to the Royal Bank of Scotland, now the owner of NatWest)?

The answer is that most people would plead guilty, not because it was true but because it is what any risk-averse human being would do.  To my mind, this system is tantamount to extracting confessions of guilt under a form of psychological torture.  That torture consists of the reasonable fear of being found guilty and fear of the length of time one might then serve in prison and of what might happen while one was there. A ll but exceptionally brave people will confess to almost anything to escape even the possibility of torture. In the same way, the majority of people would surely confess to almost anything to avoid the possibility of spending the rest of their lives in prison.

Recognition of the meaninglessness of confessions extracted under threat of torture was the main reason civilised jurisdictions abandoned its use.  The same objection applies to pleas of guilty made under the kind of plea bargaining employed in the case of the NatWest three. Let me be clear: I am not asserting that the men are innocent.  But the fact that they have made a plea of guilty does not prove their guilt.  It could just as well show that the US judicial system has a potent machine for extracting pleas of guilty to lesser charges. In this way, it has also effectively eliminated a presumption of innocence.

UPDATE: Tom Kirkendall at Houston's Clear Thinkers now has this long post examining "The real NatWest Three deal."

The psychology of punishment philosophy

Kevin Carlsmith and John Darley have posted on SSRN this chapter of a forthcoming book, which is entitled "Psychological Aspects of Retributive Justice." Here is the abstract:

Retributive justice is a system by which offenders are punished in proportion to the moral magnitude of their intentionally committed harms.  This chapter lays out the emerging psychological principles that underlie citizens' intuitions regarding punishment. We rely on experimental methods and conclude that intuitions of justice are broadly consistent with the principles of retributive justice, and therefore systematically deviate from principles of deterrence and other utilitarian based systems of punishing wrongs. We examine the recent contributions of social-neuroscience to the topic and conclude that retributive punishment judgments normally stem from the more general intuitive-based judgment system.  Particular circumstances can trigger the reasoning-based system, however, thus indicating that this is a dual process mechanism.  Importantly, though, evidence suggests that both the intuitive and reasoning systems adhere to the principles of retribution.

The empirical results of this research have clear policy implications. Converging evidence suggests that the formal U.S. justice system is becoming increasingly utilitarian in nature, but that citizen intuitions about justice continue to track retributive principles.  The resulting divide leads people to lose respect for the law, which means that they do not rely on the law's guidance in ambiguous situations where the morally correct behavior is unclear.  These are the dangers to society from having justice policies based jointly on the contradictory principles of retribution and utility, and we lay out an argument for enacting public policies more exclusively based on retributive principles of justice.

More examination of juves serving LWOP terms

This article in today's Los Angeles Times spotlights a new report on offenders serving life terms for crimes committed as juveniles.  The article is entitled, "California a leader in number of youths in prison for life," and here is how it starts:

California has sentenced more juveniles to life in prison without possibility of parole than any state in the nation except Pennsylvania, according to a new study by the University of San Francisco's Center for Law and Global Justice. California currently has 227 inmates serving such sentences for crimes committed before they turned 18; Pennsylvania has 433.

The study, titled "Sentencing Our Children to Die in Prison," also found that the United States has far more juveniles serving life terms than any other country — 2,387 at present — with Israel running a distant second at 7. Israel, the only other country that imprisons juveniles for life, according to the study, has not issued such a sentence since 2004.

In the United States, life terms have fallen disproportionately on youths of color, with black juveniles 10 times more likely than white juveniles to be given a life without parole sentence, the report found. In California, black juveniles are 20 times more likely to receive such sentences.

This new report can be found at this link.  Here is the first paragraph from its executive summary:

This report focuses on the sentencing of child offenders — those convicted of crimes committed when younger than 18 years of age — to a term of life imprisonment without the possibility of release or parole (“LWOP”).  The sentence condemns a child to die in prison. It is the harshest sentence an individual can receive short of death and violates international human rights standards of juvenile justice.

Some related posts:

• Exploring our harsh approach to juve punishment
• Does Roper suggest young juve LWOP is unconstitutional?
• NYTimes coverage of very young lifers
• Juves serving life terms
• Fascinating juve clemency development in Colorado
• Life without parole for juvenile may be cruel, but it is not unusual
• Teen crime, adult time in Colorado
• The next issue in sentencing of juveniles?
• Using Roper's focus on age in post-Booker sentencings
• California considering eliminating LWOP for juveniles
• Forthcoming PBS program "When Kids Get Life"

Lots of sentencing stuff from the Ninth Circuit

The Ninth Circuit today has two lengthy opinions covering important sentencing issues.  Here are the basics taken from the opening paragraphs of each opinion:

US v. Gonzales, No. 04-30007 (9th Cir. Nov. 5, 2007) (en banc) (available here):

In United States v. Williams, 291 F.3d 1180, 1195 (9th Cir. 2002), we held that a totally suspended six-month sentence for criminal mischief counted as a “prior sentence,” mandating an additional point on the defendant’s criminal history score; however, in United States v. Hernandez-Hernandez, 431 F.3d 1212, 1220 (9th Cir. 2005), we also held that a partially suspended three-month misdemeanor sentence resulting in three days of imprisonment did not count as a “prior sentence,” and thus did not increase the defendant’s criminal history score.  We agree with both the government and Gonzales that our analysis in Williams was flawed by its failure to read the relevant Guidelines sections as a whole.  We hold that the language “term of imprisonment” in § 4A1.2(c)(1) refers only to certain non-felony sentences for which the defendant actually served a period of imprisonment.  Therefore, we overrule Williams, clarify Hernandez-Hernandez, vacate Gonzales’s sentence and remand for resentencing.

US v. Cope, No. 06-50441 (9th Cir. Nov. 5, 2007) (available here):

In this appeal we consider, among other matters, whether the district court’s imposition of a lifetime of supervised release was reasonable and whether the district court was required to articulate findings before imposing certain special conditions of supervised release pertaining to medication.  Under the circumstances presented by this case, we conclude that the term of supervised release imposed was reasonable, but that the district court should have articulated findings before imposing special conditions of release that would implicate a particularly significant liberty interest of the defendant.  Therefore, we affirm in part, vacate the sentence in part, and remand for further proceedings.

A few reflections on the Genarlow Wilson case and the Georgia Supreme Court

The Georgia Supreme Court's ruling in the Genarlow Wilson case (discussed here) has restored my faith in the willingness of at least some judges to let reality and common-sense enter into their analysis of the cruel and unusual punishment clause.  That said, I remain saddened that prosecutorial tunnel-vision prevented Genarlow from receiving justice much sooner. 

Though a lot could and surely will be said about the Georgia Supreme Court's ruling and its broader significance, I find interesting to note the racial and gender breakdown of ruling in a case that has had lots of racial and gender dynamics in play throughout. 

The majority opinion was authored by Chief Justice Leah Ward Sears, who according to the Court's website, "was the first African-American woman to serve as Superior Court Judge in Georgia [and upon appointment in 1992 became] the first woman and the youngest person ever to serve on Georgia's Supreme Court."  Joining her opinion was Justice Carol Hunstein (the only other woman on the Court), Justice Robert Benham (one of two African-American men on this Court) and Justice Hugh Thompson (who may now seem to Wilson supporters to be pretty fly for a white guy).  Justice George Carley authored the dissent, and he was joined by Justices Harris Hines and Harold Melton.  Justice Melton is the other African-American man on the Court and its newest member.

Lots of observations could be made based on these demographics and the voting pattern they produced in the Wilson case.  However, I find most striking simply how much more diverse the Georgia Supreme Court is than the U.S. Supreme Court.  Despite having nine members, SCOTUS has never had more than one active African-American justice, has never had an African-American female justice, and now only has a single female justice.  But, in the deep south state of Georgia, Genarlow Wilson's fate was in the hands of a seven-member court with three African-American jurists, two female jurists, and an African-American woman as the Chief.

Some (dated) Wilson posts discussing race, gender and related issues:

• Two (feminist?) perspectives on the Wilson case
• Provocative questions about Georgia sentencing injustice
• The nuance in my provocation
• Why isn't the severe Georgia sentence constitutionally problematic? 
• ESPN effectively covers Genarlow Wilson's sad saga

Is there any principled basis for DOJ opposition to the crack amendment being retroactive?

Writing in the National Law Journal, Marcia Coyle has this effective article detailing the state of the debate over whether the US Sentencing Commission will make its new reduced crack guidelines retroactive.  The piece is entitled, "Retroactivity for Crack Sentence Cuts Debated: More than 20,000 crack offenders could have their sentences reduced," and here are key snippets:

As the Nov. 1 effective date approaches for new and lower crack cocaine sentencing guidelines, the U.S. Sentencing Commission has received more than 1,000 public comments on a related proposal -- making those lower sentencing levels retroactive.  The commission has extended the public comment period on the retroactivity issue and has scheduled a Nov. 13 public hearing.

The commission staff recently released an analysis of the impact of making the so-called "crack minus two" guideline amendment retroactive: Nearly 20,000 crack offenders could have their sentences reduced an average of two years or more.

The more than 1,000 public comments on the retroactivity issue heavily favor retroactivity, according to sources close to the commission's work.  The outpouring of comments is unusual for most of the commission's work, but not for the crack cocaine issue, they say. This time the comments appear to be the result of intensive efforts by organizations that have long supported the commission's position that the 100-to-1 crack-powder cocaine sentencing disparity disproportionately affects minorities and low-level offenders and undermines the objectives of the nation's sentencing reform laws.

"We've launched a campaign to ask all of our members to explain to the commission that this is the right thing and the judicially efficient thing to do," said Mary Price, vice president and general counsel of Families Against Mandatory Minimums (FAMM).  Besides FAMM, the commission also has heard from the American Bar Association, the American Civil Liberties Union, Federal Public and Community Defenders, the National Association of Criminal Defense Lawyers, their members and other organizations.

Yet to weigh in on the retroactivity issue is the U.S. Department of Justice.  But spokesman Erik Ablin said, "We have not yet filed a comment, but we plan to do so by the Nov. 1 deadline.  I can tell you that our comment will reflect our opposition to retroactive application."

I will be eager to see what DOJ has to say, because I have a hard time identifying a truly principled basis for resisting retroactive application of an amendment that the USSC has said is long overdue and that is supported by mountains of sound research and advocacy. 

Of course, because so many offenders have been subject to unduly harsh crack guidelines, the practical consequences of making the new guidelines retroactive would be significant.  But so would be the practical consequences of non-retroactivity — which might spark prison riots and surely would engender lots of litigation.  Moreover, it would be particularly sad if our national "Department of Justice" fear or resist too much justice for certain defendants simply because it may require a lot of extra paperwork.

Some related posts:

• The Sentencing Project urges retroactivity of USSC crack amendment
• USSC schedules public hearing on crack amendment retroactivity
• USSC analysis on potential crack amendment retroactivity impact
• Crack wackiness brewing over impact of crack amendments
• Latest FSR issue covers crack sentencing
• ABA makes pitch for USSC crack amendments to be made retroactive

Perceptive public perceptions and political opportunities

A helpful reader pointed me to some recent Gallup poll results concerning public perception of crime rates and drug problems.  Here are links and highlights from these recent polls:

On crime, this Gallup poll report is headlined "Perceptions of Crime Problem Remain Curiously Negative: More see crime worsening rather than improving."  This Gallup report makes much of the fact that "Americans have a decidedly negative outlook about crime" even though overall crime rates "have generally leveled off at extremely low numbers."  But, Gallup's poll question asked about perceptions of crime in the last year, and the latest FBI yearly report shows a roughly 2% increase in violent crime.

On drugs, this Gallup poll report is headlined "Little Change in Public's View of the U.S. Drug Problem: More than 7 in 10 Americans say nation's drug problem is very serious."   This Gallup report details that "the vast majority of Americans [are] saying the problem of illegal drugs in the United States is very serious," but "only about one in three Americans [believe that government efforts have] made progress in this area."

Beyond being impressed with the public's perceptiveness, these result would appear to present real political opportunities for those interested in sounder crime and sentencing policies.  Read together, these polls suggest that the public is primarily concerned with violent crimes and that most Americans view the government's use of harsh sentences in the "war on drugs" to be a failure.  In turn, the public ought to be very receptive to campaigns that promise dramatic reductions in sentences for non-violent drug offenders so that resources could be more effectively concentrated on (a) drug treatment programs, and (b) police and correctional resources devoted to preventing and responding to violent crimes and offenders.

Some related posts:

• New Sentencing Project report on the "war on drugs"
• Politics and the war on drugs
• SF Mayor Gavin Newsom: "End this war on drugs."
• A gendered perspective on the war on drugs
• Lies, damn lies and FBI crime statistics
• Disconcerting rise in violent crime rates
• How the war on terror impacts the politics of crime

Valuable recidivism assessment and analysis from down under

Thanks to a helpful colleague, I learned of this terr