Tuesday, October 21, 2014
Bladerunner Oscar Pistorius sentenced to five years in prison for killing girlfriend
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
Thursday, October 16, 2014
Author John Grisham says "we've gone nuts with this incarceration" of child porn downloaders
One of my (many) wonderful students alerted me to this notable UK press piece reporting on an interview with famous law author John Grisham who had some interesting (and likely-to-be-controversial) comments about tough sentencing for those who download child porn. The article is headlined "John Grisham: men who watch child porn are not all paedophiles," and here are excerpts:
America is wrongly jailing far too many people for viewing child pornography, the best-selling legal novelist John Grisham has told The Telegraph in a wide-ranging attack on the US judicial system and the country's sky-high prison rates. Mr Grisham, 59, argued America's judges had "gone crazy" over the past 30 years, locking up far too many people, from white collar criminals like the businesswoman Martha Stewart, to black teenagers on minor drugs charges and — he added — those who had viewed child porn online.
"We have prisons now filled with guys my age. Sixty-year-old white men in prison who've never harmed anybody, would never touch a child," he said in an exclusive interview to promote his latest novel Gray Mountain which is published next week. "But they got online one night and started surfing around, probably had too much to drink or whatever, and pushed the wrong buttons, went too far and got into child porn."
The author of legal thrillers such as The Firm and A Time to Kill who has sold more than 275m books during his 25-year career, cited the case of a "good buddy from law school" who was caught up in a Canadian child porn sting operation a decade ago as an example of excessive sentencing. "His drinking was out of control, and he went to a website. It was labelled 'sixteen year old wannabee hookers or something like that'. And it said '16-year-old girls'. So he went there. Downloaded some stuff — it was 16 year old girls who looked 30.
"He shouldn't ’a done it. It was stupid, but it wasn't 10-year-old boys. He didn't touch anything. And God, a week later there was a knock on the door: ‘FBI!’ and it was sting set up by the Royal Canadian Mounted Police to catch people — sex offenders — and he went to prison for three years."
"There's so many of them now. There's so many 'sex offenders' — that's what they're called — that they put them in the same prison. Like they're a bunch of perverts, or something; thousands of ’em. We've gone nuts with this incarceration," he added in his loft-office in Charlottesville, Virginia.
Asked about the argument that viewing child pornography fuelled the industry of abuse needed to create the pictures, Mr Grisham said that current sentencing policies failed to draw a distinction between real-world abusers and those who downloaded content, accidentally or otherwise. "I have no sympathy for real paedophiles,” he said, "God, please lock those people up. But so many of these guys do not deserve harsh prison sentences, and that's what they're getting," adding sentencing disparities between blacks and whites was likely to be the subject of his next book.
There are currently some 2.2m people in jail in the US — or more than 750 per 100,000 population — which makes the US by far the heaviest user of prison sentences in the world. By contrast, Britain imprisons just 154 per 100,000 population. However Mr Grisham’s remarks are likely to anger child-rights campaigners that over the past decade have successfully lobbied the US Congress to demand tougher sentences for those who access child pornography online.
Since 2004 average sentences for those who possess — but do not produce — child pornography have nearly doubled in the US, from 54 months in 2004 to 95 months in 2010, according to a 2012 report by the U.S. Sentencing Commission. However the issue of sex-offender sentencing has sparked some debate in the US legal community after it emerged that in some cases those who viewed child porn online were at risk of receiving harsher sentences than those who committed physical acts against children.
A provocative article in the libertarian magazine Reason headlined "Looking v Touching" argued last February that something was "seriously wrong with a justice system in which people who look at images of child rape can be punished more severely than people who rape children". And in January this year the US Supreme Court was unable to resolve a debate over whether a man who viewed images of a child rape should be as liable to pay the same financial compensation to the victim as the original perpetrator of the crime.
UPDATE: As I expected, John Grisham's child porn sentencing comments has stirred controversy and he has already issued a formal apology. This CNN story provides the basics of the early aftermath:
Those comments and the nature in which Grisham discussed the very serious issue of child pornography incited a flood of hurt, disappointed and angry reactions from fans.
"The day that you came out in an interview and said that watchers of child porn get too stiff of a penalty for it (you said 10 years was too much) makes you someone that I cannot support nor no longer want to read," a reader named Kendra Benefield Lausman shared on Grisham's Facebook page; another posted that she's taken her entire Grisham library to her "burn barrel" with the intent to set the books on fire.
"How do you think child porn is made?" a poster named John Kelly asked on Grisham's page. "Someone is still getting hurt you imbecile. I'm sad to say that I will never purchase, nor consume, one of your books ever again. I am disgusted."
After the uproar began, Grisham issued an apology.
"Anyone who harms a child for profit or pleasure, or who in any way participates in child pornography -- online or otherwise -- should be punished to the fullest extent of the law," the author said in a statement. "My comments made two days ago during an interview with the British newspaper The Telegraph were in no way intended to show sympathy for those convicted of sex crimes, especially the sexual molestation of children. I can think of nothing more despicable. I regret having made these comments, and apologize to all."
That may not be enough for some of his former followers. "You clearly said in the interview that people (like your drunk friend) who look at child porn don't deserve severe punishment," Facebook user Raylene Jolly Wheeler posted in response to Grisham. "Not sure how you can backtrack that statement."
"Risk and Needs Assessment: Constitutional and Ethical Challenges"
The title of this post is the title of this timely and notable new paper by Melissa Hamilton recently posted on SSRN. Here is the abstract:
Across jurisdictions, the criminal justice system is enamored with the evidence-based practices movement. The idea is to utilize the best scientific data to identify and classify individuals based on their potential future risk of reoffending, and then to manage offender populations according to risk and criminogenic needs. Risk-needs tools now inform a variety of criminal justice decisions, ranging from pre-trial outcomes, to sentencing, to post-conviction supervision. While evidence-based methodologies are widely exalted as representing best practices, constitutional and moral objections have been raised.
Risk-needs tools incorporate a host of constitutionally and morally sensitive factors, such as demographic and other immutable characteristics. The constitutional analysis herein engages equal protection, prisoners’ rights, due process, and sentencing law. In addition, the text examines the philosophical polemic aimed uniquely at sentencing as to whether risk should play any role at all in determining punishment.
The Article then appraises potential alternatives for risk-needs methodologies if the concerns so raised by critics prove legitimate. Any option comes with significant consequences. Retaining offensive variables incites political and ethical reproaches, while simply excising them weakens statistical validity of the underlying models and diminishes the promise of evidence-based practices. Promoting an emphasis on risk at sentencing dilutes the focus of punishment on blameworthiness, while neglecting risk and needs sabotages a core objective of the new penological model of harnessing the ability to identify and divert low risk offenders to appropriate community-based alternatives.
October 16, 2014 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (5) | TrackBack
Wednesday, October 08, 2014
Distinctive religious perspective on the drug war for the season
In the wake of the recent Jewish high holy days, I found especially notable and timely this recent commentary appearing in The Forward authored by Hanna Liebman Dershowitz. The piece is headlined "A Drug Policy That Denies Repentance: We Are Ruining The Lives of Small Time Users," and here are excerpts:
We are emerging from the Day of Repentance — a time for contrition for misdeeds, focusing on self-improvement and making a fresh start. But what about people who don’t have the luxury of wiping their slates clean, even for minor transgressions? Are our laws and policies robbing millions of citizens of their own opportunities to turn toward good, to achieve the possibility of teshuvah, atonement, that we claim for ourselves each year?
For decades this country has pursued a policy of mass arrest and imprisonment of people for possessing drugs. The consequences of being prosecuted for simple drug possession — conduct that does not harm other people’s bodies or property — can affect people for the rest of their lives, and wreak untold cost on our country and our society.
A criminal record can cripple job prospects and much more. Individuals with a record are often denied child custody, voting rights, business financing, professional licenses, student loans and public housing....
The United States has a higher level of incarceration than any other country. Today, more than 2.3 million people are behind bars in America. Almost one in four of them are there for drug offenses, many serving extensive mandatory minimum sentences. It is costing us dearly in lives and dollars.
And what has been gained? No appreciable reduction in use or in rates of addiction. By contrast, we have degraded the conditions that promote recovery for those who are addicted — such as access to treatment, access to support networks, gainful employment and education. It feels like we are tearing apart communities when we don’t need to. In 2012, upward of 1.5 million Americans were arrested for drugs. More than 80% of those arrests were for possession of small amounts.
Meanwhile, focusing too much attention on drug possessors often leads to perverse results. For example, in 2008, in California alone, 61,000 people were arrested for possession of small amounts of marijuana; that same year, 60,000 violent crimes in California went unsolved. When drug arrests are made, testing the drugs in crime labs often jumps ahead of testing rape kits and other evidence from violent crimes, because there is a suspect in custody and the courts need evidence to sustain the prosecution. In various ways, the focus on arresting drug users has atrophied our ability to address violent crime and other public safety threats.
Equally troubling, penalties for drug use fall disproportionately on people of color. Arrest rates of African-Americans for marijuana possession (the bulk of drug arrests) are many times higher — in some areas, as much as 10 times higher — than for whites in most United States cities, despite the fact that black and white people use drugs at similar rates. Although they make up 13% of America’s population, blacks make up fully 31% of arrests for drug offenses and more than 40% of incarcerations. A recent study found that prosecutors are twice as likely to pursue a mandatory minimum sentence for blacks as they are for whites. This is about dehumanizing and demoralizing large numbers of citizens and stripping them of their dignity. We as Jews should recognize and strenuously oppose these unfair and discriminatory practices.
Is this how we want our system to respond to this kind of nonviolent conduct? What does it mean to be a law-abiding citizen if a person cannot make the conscious choice to walk a positive path even after a transgression? Continuing consequences, especially for minor nonviolent acts, seem to render hollow the concepts of forgiveness, redemption and community healing.
The implications of policies should be particularly resonant to us during this season of renewal. We have fasted, made our amends and hoped we were inscribed in the book of life. We should abhor a system that erases other people’s chances to atone simply because those people chose an action we have singled out for disdain.
Criticizing the tenure of AG Eric Holder based on the death penalty as a human rights issue
This extended New Republic commentary authored by Mugambi Jouet, somewhat inaccurately titled "What Eric Holder — and Most Americans — Don't Understand About the Death Penalty," takes shots at Holder's specific record on the death penalty:
Attorney General Eric Holder's recent resignation announcement prompted a flurry of assessments on his six years of service under President Obama. He let Wall Street off too easy. He was a hero to the poor. He compromised civil liberties in the name of national security—and defended civil rights better than any attorney general before him. But the debate over Holder’s record has overlooked one of the most important aspects of his legacy. Holder has been profoundly at odds with the rest of the Western world on one of the most significant human rights issues of our time: the death penalty.
All Western democracies except America have abolished capital punishment and consider it an inherent human rights violation. America further stands out as one of the countries that execute the most people. Thirty-nine prisoners were executed by the United States in 2013. While that figure marked a continuing decline in the annual number of U.S. executions, it still placed America fifth worldwide, right behind several authoritarian regimes: China, Iran, Iraq, and Saudi Arabia.
No federal prisoner has been executed since 2003, yet Holder’s decisions could ultimately lead this de facto moratorium to end, as he authorized federal prosecutors to pursue capital punishment in several dozen cases. "Even though I am personally opposed to the death penalty, as Attorney General I have to enforce federal law," Holder has argued. Prosecutors actually have the discretion not to pursue the death penalty at all — at the risk of losing popularity — since enforcing the law does not require pursuing capital punishment as opposed to incarceration....
Holder notably approved the decision to seek the death penalty in the federal trial of Dzhokhar Tsarnaev, who is accused of perpetrating the Boston Marathon bombings of 2013 — and whom a majority of Americans want to be executed. Nevertheless, the state of Massachusetts has abolished the death penalty and only 33 percent of Boston residents support executing Tsarnaev as opposed to sentencing him to life in prison without parole. However, Holder’s decisions supporting capital punishment have hardly been limited to terrorism cases. For example, he authorized the recent decision to seek the death penalty for Jessie Con-Ui, a Pennsylvania prisoner accused of murdering a federal correctional officer....
The death penalty is rarely framed as a human rights issue in America, unlike in other Western democracies. That's partly because the principle of human rights plays a very limited role overall in the legal and political debate in the U.S., where "human rights" commonly evoke foreign problems like abuses in Third World dictatorships — not problems at home.
The situation is different on the other side of the Atlantic, where the European Court of Human Rights tackles a broad range of problems facing European states, from freedom of speech to labor rights, discrimination, and criminal justice reform. National human rights commissions also exist in multiple countries, including Australia, Denmark, France, Germany, and New Zealand. These bodies focus mostly or exclusively on monitoring domestic compliance with human rights standards. On the other hand, the Tom Lantos Human Rights Commission, an arm of the U.S. Congress, focuses on the human rights records of foreign countries.
The relative absence of human rights as a principle in modern America is remarkable given how U.S. leaders actively promoted the concept in its infancy. President Franklin Delano Roosevelt invoked “human rights” in his “Four Freedoms Speech” of 1941. Eleanor Roosevelt was among the architects of the Universal Declaration of Human Rights of 1948. As the human rights movement progressed in later decades, Martin Luther King said in 1968 that “we have moved from the era of civil rights to the era of human rights.”
Even though Holder regards King as one of his models — and despite his proposals to make the U.S. penal system less punitive and discriminatory — the nation’s first black attorney general hardly put human rights at the center of his agenda.
The death penalty is far from the only human right issue where America stands apart from other Western democracies. America effectively has the world’s top incarceration rate, with 5 percent of the world’s population but 25 percent of its prisoners. America is likewise virtually alone worldwide in authorizing life imprisonment for juveniles. Its reliance on extremely lengthy periods of solitary confinement has been denounced by the U.N. Special Rapporteur on Torture. The extreme punishments regularly meted to U.S. prisoners are generally considered flagrant human rights violations in other Western countries. Nevertheless, Holder argued that America has “the greatest justice system the world has ever known.”
By the same token, no other modern Western democracy has gone as far as America in disregarding international human rights standards as part of anti-terrorism measures. This trend has been epitomized by indefinite detention at Guantanamo and the torture of alleged terrorists under the Bush administration. These practices have sharply divided U.S. public opinion but only a segment of Americans have depicted them as “human rights” abuses....
[T]he limited weight of human rights in the U.S. legal and political debate is not without consequences. Human rights are a far stronger basis to oppose practices like the death penalty or torture than the administrative arguments frequently invoked in America. The human rights argument against such practices is largely based on the premise that they violate human dignity....
Holder's narrow focus on problems with the administration of capital punishment suggests that he is among the many U.S. public officials and reformers who believe they have no duty to assess the “moral” issues regarding the death penalty. Whether this stance is justified or not, it seems quite exceptionally American in the modern Western world. Most contemporary European, Canadian, Australian, and New Zealander jurists probably would disagree with the notion that it is not their duty to assess whether executions violate human dignity.
Martin Luther King, who considered the death penalty an affront to human dignity, argued that “a genuine leader is not a searcher for consensus but a molder of consensus.” Perhaps Eric Holder — and his boss, Barack Obama — would have been willing to argue that the death penalty is dehumanizing if they did not fear losing popularity.
Wednesday, October 01, 2014
Peculiar (judicial?) screed against evidence-based sentencing "fad" based on the "need to be realistic"?!!?
I have long been intrigued and generally impressed by the writings and work of Colorado state judge Morris Hoffman. However, this new USA Today commentary by Judge Hoffman, headlined "Emptying prisons is no panacea: Deterring others matters as much as rehabilitation," has me scratching my head about what prompted a thoughtful judge to produce a peculiar screed against evidence-based sentencing. At the risk of making this post much too long, I will reprint the whole commentary before explaining why it made my head hurt this morning:
Just days before Attorney General Eric Holder announced his resignation, the Department of Justice announced one of his signature achievements. After growing for decades, the federal prison population has started to decline. The new data were greeted with wide acclaim, but before we embrace the idea that fewer prisoners is always good, let's step back and consider whether at least one of the drivers of our declining prison population is a good idea.
Like all humans, judges are susceptible to fads. Anger management became a popular feature of American probationary sentences in the 1980s. Teen courts and drug courts followed. The new fad is "evidence-based sentencing." It is both a refreshing attempt at rationality and a dangerous rejection of human nature.
Evidence-based sentencing purports to redirect judges' attention from old-fashioned retribution to enlightened deterrence and rehabilitation. Judges across the country are attending innumerable evidence-based sentencing conferences that focus on how incarceration affects recidivism rates. The claim is that incarceration costs much more than its deterrent benefits. Judges should think twice before throwing away the key.
We don't need conferences to make that point. One of the hidden truths of criminal justice is that most judges, including me, give criminals chance after chance before we sentence them to prison. There are exceptions, such as serious violent crimes and drug crimes that carry mandatory prison sentences. But, for the most part, defendants have to really work hard to land in prison.
We should applaud efforts to put data over gut instinct when trying to predict the future behaviors of our defendants. But we also need to be realistic. There's a reason science stinks at predicting individual behavior. An almost infinite number of bits of data contribute to human decision-making, including the billions of base pairs in our DNA and a lifetime of brain-changing individual experiences, among other things. Not to mention that unscientific interloper: free will.
There is a much more serious problem with evidence-based sentencing. It ignores the most important reason we punish wrongdoers. When I sentence a bank robber to prison, the idea is not just to deter him from robbing again ("specific deterrence"). I also want to deter other people who might be considering robbing a bank ("general deterrence").
General deterrence is what makes us a civilized society. It is the glue that holds us together under the rule of law. It is so deeply engrained, every human society that has left a record shows evidence it punished its wrongdoers. Indeed, our tendency to punish wrongdoers is most likely an evolved trait, which we needed in order to keep our intensely social small groups from unravelling in selfishness. By focusing on specific deterrence, evidence-based sentencing mavens ignore 5,000 years of civilized wisdom and 200,000 years of human evolution.
They seem to recognize this failing, but only half-heartedly. They tend to downplay crimes such as rape and murder to focus on low-harm crimes. But burglary and theft tear the social fabric more broadly simply because they are more frequent. Indeed, low-harm crimes are often crimes of cold economic predation rather than hot emotion. For them, deterrence can be more effective. Giving thieves and burglars a stern lecture and probation, just because some social scientists tell us prison doesn't rehabilitate them, is a surefire way to increase thefts and burglaries.
Those of us fortunate enough to live in civilized societies owe that civilization to the rule of law, which means nothing without the bite of punishment. Punishment must be merciful, but it should not be abandoned to misguided claims that it does not deter.
Candidly, this commentary has so many disconnected and illogical assertions, I have too many criticisms to fit into this blog space. But I can start by highlighting how curious it is that the AG's discussion of the reduction in the federal prison population, brought about largely through changes in federal drug sentencing policies and practices, leads to a state judge worrying we risk not punishing "thieves and burglars" enough to achieve general deterrence. Moreover, AG Holder was bragging last week that in recent years we have lowered prison populations AND lowered crime rates. What evidence-based sentencing seeks to do is find ways to better achieve both specific and general deterrence without continue to rely so heavily on the very costly and too-often-ineffective punishment of imprisonment.
More fundamentally, what really troubled me about Judge Hoffman's analysis is his misguided and harmful perspectives (1) that focused attention to data and evidence about imprisonment's impact on crime is a "fad," and (2) that only lengthy terms of incarceration constitute "real" punishment that can deter. On the first point, I wonder if Judge Hoffman urges his doctors not to be caught up in the "fad" of practicing "evidence-based" medicine. After all, given that "almost infinite number of bits of data contribute" to human health (not to mention that "unscientific interloper, free will"), perhaps Judge Hoffman encourages his doctors to be "realistic" that he is going to die eventually anyway. Indeed, perhaps we ought to be suspect about all efforts to improve and extend human life by "evidence-based [medicine] mavens [who] ignore 5,000 years of civilized wisdom and 200,000 years of human evolution" which shows we all end up dead anyway.
Truth be told, what is truly a "fad" in light of "5,000 years of civilized wisdom and 200,000 years of human evolution" is the extreme use of extreme terms of imprisonment that has come to define the modern American experience with punishment. Brutal physical punishments and public shaming punishment have been the norm and the means use to deter crime in most other societies throughout human history (and in the US until fairly recently). Moreover, all serious social and scientific research on human behavior has demonstrated that the swiftness and certainty of punishment, not its severity, is critical to achieving both specific and general deterrence. That is one (of many) reasons evidence-based sentencing makes long-terms of imprisonment look a lot less effective, at least relative to its high costs, than various other possible punishments.
I could go on and on, but I will conclude by encouraging everyone to appreciate that evidence-based reforms in lots of settings often provoke these kinds of old-world reactions: typically, folks who benefit from or prefer an old-world "faithful" view about how they think the world works will be eager to question and seek to discredit reformers who suggest science and data provides a new perspective that requires significant reform and changes to the status quo. And though I always hope to show respect for old-world "faithful" perspectives, I get worked up by attacks on evidence-based reforms because I am ultimately much more a creature of science than a creature of faith.
Tuesday, September 30, 2014
What should be made of the tough prosecution/punishment trend for animal abuse?
The question in the title of this post is prompted by this front-page New York Times article headlined "He Kicked a Stray Cat, and Activists Growled." Here are excerpts:
On one side are the activists. Once dismissed as cat ladies or fringe do-gooders, they have come to wield real power through funding, organization and a focus on legal remedies for animal abuse. They have embraced social-media campaigns; offered rewards to potential witnesses to animal abuse; trained prosecutors; and made inroads in pushing law enforcement across the country to arrest, and seek jail time for, animal abusers.
Yet lawyers defending the accused say that punishment can seem disproportionate to the crime when an animal is the victim. They say that putting people in jail can have serious long-term effects, from starting or strengthening gang affiliations, to taking someone away from school or a job to which they may not return. “The nature of the crime should not automatically mandate a jail sentence if a person is found guilty,” said Tina Luongo, acting attorney in charge of the Legal Aid Society’s criminal practice.
At the moment, the activists seem to be winning the fight. The Federal Bureau of Investigation announced this month that it would track animal abuse as a separate crime, rather than lumping it in the “other” category.
In New York City, the Police Department took over responsibility for animal abuse complaints in January, and created an Animal Cruelty Investigation Squad. Arrests for animal abuse increased about 250 percent through September, compared with the same period last year....
Houston’s district attorney said this month that she would seek jail time in animal cruelty cases, and Massachusetts passed a bill increasing maximum prison time for animal abuse cases to seven years from five. In Virginia, after a push from People for the Ethical Treatment of Animals, a man was sentenced in February to a year in jail for starving a pit bull. And in Texas this year, a man received five years after offering to guide a wayward pet donkey home, then dragging the donkey behind his truck. The donkey, which was found in a ditch, survived....
Not long ago, animal cruelty was “considered a side issue, relegated to something a few overpassionate people cared about, basically,” said Assemblywoman Linda B. Rosenthal of the Upper West Side, who has backed several bills strengthening animal cruelty laws. “Now, it’s a mainstream concern.”
And it is one that animal groups are trying to make even more central.... The groups say they have captured law enforcement’s attention in part by emphasizing that animal cruelty can be a “red flag” for future crimes, particularly domestic violence. Prosecutions nationwide are becoming much more frequent, said Sherry Ramsey, the director of animal cruelty prosecutions for the Humane Society of the United States, “and a lot of it’s based on what we know now about the link between animal cruelty and human violence.”
Yet defense groups say animal abuse cases ... should be handled individually, and are not necessarily predictive of worse behavior. “We don’t punish individuals for alleged future misconduct they might at some point in the future engage, but have not,” Theodore Simon, president of the National Association of Criminal Defense Lawyers, said in an email. “To do so would be to punish a person for a ‘crime’ that has not occurred and was not committed.” Defense advocates also say more needs to be done if society wants to tamp down animal abuse.
Making the full case for Mitt Romney, drug czar
Regular readers may recall this post from a few months ago in which I highlighted the brilliant and provocative commentary by Mark Osler headlined "Mitt Romney for drug czar." Now I can post Mark's fuller explication of the ideas that lead to the notion of Drug Czar Romney as they appear in this article now available on SSRN headlined "1986: AIDS, Crack, and C. Everett Koop." Here is the abstract:
In 1986, Ronald Reagan’s America confronted twin public health crises: AIDS and crack. There were striking similarities between the two, in that both developed quietly before public alarms were raised; both were identified with traditionally oppressed groups; both spread in a similar pattern; and both created fear in the American public. Where they differed, though, was in the reaction. After initial missteps, AIDS was approached through problem-solving doctors and researchers rather than quarantine. In contrast, crack was confronted with a heavy retributive hand. AIDS was transformed to a chronic, treatable illness. In contrast, crack not only continued to plague communities, but the use of mass incarceration created new problems.
Four striking personalities shaped these differing outcomes. With AIDS, the chief strategist was the remarkable C. Everett Koop, and the public face was a young boy named Ryan White. For crack, a chief strategist was the vituperative William Bennett, and the public face was basketball player Len Bias. The latter pair drove the fight against crack towards disaster, while the former created a more humane world.
This article argues that it is not too late to learn the lessons of 1986 and take a better approach towards narcotics, and that this approach might best be led by someone who understands the driving force behind drugs (the profit motive) the way that Koop understood the driving force behind AIDS (a virus). In our present era, that person may be someone who straddles business and politics, such as former presidential candidate Mitt Romney.
Monday, September 29, 2014
Notable new AG Holder memorandum on charging policies and plea negotiations
I learned over the weekend that last week Attorney General Eric Holder issued a short memo to DOJ lawyers to provide "Guidance Regarding § 851 Enhancements in Plea Negotiations." This full one-page memo, which is dated September 24, 2014, can be downloaded below. Here are its most notable sentences, with my emphasis added:
The Department provided more specific guidance for charging mandatory minimums and recidivist enhancements in drug cases in the August 12, 2013, "Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases." That memorandum provides that prosecutors should decline to seek an enhancement pursuant to 21 U.S.C. § 851 unless the "defendant is involved in conduct that makes the case appropriate for severe sanctions," and sets forth factors that prosecutors should consider in making that determination. Whether a defendant is pleading guilty is not one of the factors enumerated in the charging policy. Prosecutors are encouraged to make the§ 851 determination at the time the case is charged, or as soon as possible thereafter. An § 851 enhancement should not be used in plea negotiations for the sole or predominant purpose of inducing a defendant to plead guilty. This is consistent with long-standing Department policy that "[c]harges should not be filed simply to exert leverage to induce a plea, nor should charges be abandoned to arrive at a plea bargain that does not reflect the seriousness of the defendant's conduct." "Department Policy on Charging and Sentencing," May 19, 2010.
While the fact that a defendant may or may not exercise his right to a jury trial should ordinarily not govern the determination of whether to file or forego an § 851 enhancement, certain circumstances -- such as new information about the defendant, a reassessment of the strength of the government's case, or recognition of cooperation -- may make it appropriate to forego or dismiss a previously filed § 851 information in connection with a guilty plea. A practice of routinely premising the decision to file an § 851 enhancement solely on whether a defendant is entering a guilty plea, however, is inappropriate and inconsistent with the spirit of the policy.
I am inclined to speculate that AG Holder felt a need to issue this short memo in part because of reports that some US Attorneys may have had a "practice of routinely premising the decision to file an § 851 enhancement solely on whether a defendant is entering a guilty plea."
Wednesday, September 24, 2014
Absent evidence of threats to humans, is incarceration for five years for animal abuse needed (or helpful)?
Like all good people, I really like puppies and really dislike animal abuse. Still, after being drawn in to this Florida sentencing story by the headline "Man Rapes Pit Bull Puppy, Sentenced To Five Years In Jail For Sexually Abusing Dog," I kept wondering what else the defendant must have done other than abuse his dog in order to be sentence to half a decade behinds bars. But the most complete story I could find about this "puppy rape" case, here from the Daytona Beach News-Journal, heightens my concern that Florida taxpayers are now going to have to spend a lot of money incarcerating a disturbed old man who presents no obvious threat to humans and clearly needs treatment to deal with his affinity for bestiality. Here are the basics:
A man whose sexual battery of a pit bull puppy did not rise to the level of state prison time, nonetheless received five years behind bars Friday afternoon after Circuit Judge Leah Case compared the crime to “systematic” and “chronic” child abuse.
When Case announced her decision to imprison James Bull of Daytona Beach, a crowd of mostly female animal advocates cheered and cried. Many of the advocates wore T-shirts bearing the pit bull puppy’s picture and the words “Justice For Rose.” The dog’s name was Coco, but the New York City rescue organization now fostering the milk-chocolate-colored canine renamed her Rose.
The case is the first time in Volusia or Flagler counties that a person has been convicted on the charge of sexual activity with an animal, a first-degree misdemeanor, State Attorney spokesman Spencer Hathaway said. Bull was also convicted of two counts of felony cruelty to animals and cruelty to animals. According to an article in the Mayport Florida Mirror in January, a St. Augustine man was convicted of bestiality with his dog and was sentenced to eight years in prison under the same state statute that was applied to Bull on Friday, Sept. 19, 2014....
Prosecutor Nathaniel Sebastian told Case that Bull did not score enough points criminally to be sentenced to state prison. He said perhaps the defendant could get additional jail time, probation and psycho-sexual counseling. Bull’s attorney Peter Kenny didn’t present much of an argument in his client’s favor, but did ask Case to spare Bull from prison because of his age and because he has a “bad back.”
While Case acknowledged that indeed Bull didn’t score high enough for prison, she also repeated the jarring testimony given a few minutes earlier by the state’s four witnesses regarding the dog’s daily suffering. “Although he (Bull) doesn’t score, it’s more about the intentional infliction of pain on an animal over and over again,” Case said. “It’s like child abuse. It often happens in secret behind closed doors.”
Prosecutors called three witnesses to the stand — their fourth witness, Halifax Humane Society veterinarian Tom Frieberg, testified via telephone — who provided graphic testimony about the animal’s living conditions and Bull’s abuse. Bull’s neighbor Dean Ray Gill testified that he constantly heard the dog yelping and “screaming.” Gill said that one day in March he was “fed up” and went to the back apartment to see what was happening to the animal. Gill said the door to Bull’s apartment was slightly ajar and he could hear the radio or a stereo blaring inside. Nonetheless, he could still hear the canine yelping above the music. Gill said he saw Bull sexually abusing the animal. Bull threw the dog aside and closed the front door, the neighbor testified.
Daytona Beach animal control officer Eva Burke said that when she arrived at Bull’s residence on March 18, the dog was chained to a porch and could not move because the chain was too short. Burke also said the animal’s rib cage was showing. Both Sebastian and Assistant State Attorney John Reid showed their witnesses photographs of the dog when police arrived on scene. Hathaway, the assistant state attorney who initially had the case, said the pictures were horrifying. Kenney did not call any witnesses on behalf of Bull.
At the risk of being labelled "soft on puppy rapists" or not loving animals, I cannot help but wonder and worry about the quality of representation this defendant received and about the need for such a lengthy term of incarceration if there is was indeed no evidence this defendant ever hurt a human or had plans to abuse humans. This defendant is plainly disturbed and his mistreatment of animals should be punished, but will a five-year jail term help this defendant get needed treatment or help safeguard the community upon his eventual release? Especially because there is considerable evidence suggesting certain types of offenders become MORE likely to recidivate as a result of a term of incarceration, I fear that this kind of "Justice for Rose" will actually entail greater expenses and an eventual greater threat to public safety for the people of Florida.
Brennan Center urges new orientation in "Federal Prosecution for the 21st Century"
As noted in prior posts here and here, Attorney General Eric Holder gave a big speech yesterday in New York at the Brennan Center for Justice's conference on the topic of "Shifting Law Enforcement Goals to Reduce Mass Incarceration." In that speech, AG Holder praised the Brennan Center's effort to encourage prosecutrs to "shift away from old metrics and embrace a more contemporary, and more comprehensive, view of what constitutes success." These Brennan Center efforts are reflected in this important new publication titled "Federal Prosecution for the 21st Century." Here is how the Center describes this report:
This new report from the Brennan Center for Justice at NYU School of Law proposes modernizing one key aspect of the criminal justice system: federal prosecutors. Prosecutors are in a uniquely powerful position to bring change, since they make decisions about when and whether to bring criminal charges, and make recommendations for sentencing. The report proposes reorienting the way prosecutors’ “success” is measured around three core goals: Reducing violent and serious crime, reducing prison populations, and reducing recidivism. The mechanism for change would be a shift in how attorneys' performance is assessed, to give prosecutors incentives to focus on how their practices reduce crime in and improve the communities they serve, instead of making their "success" simply a measure of how many individuals they convict and send to prison.
Tuesday, September 23, 2014
Noting the dynamics and debate over risk-assessments at sentencing
This new Wall Street Journal article, headlined "Judges Turn to Risk-Evaluation Tools in Sentencing Decisions: Many Are Adopting More Systematic Approach to Assessing Likelihood of Reoffense," discusses the always interesting issue of using risk-assessment measures at sentencing. Here are excerpts:
Judges have always considered the risk of reoffending in meting out sentences, and they generally follow guidelines that dictate a range of punishment for a given offense. [More recently], however, [there is] a broad effort to bring a more scientific approach to decisions made by judges, parole officers and corrections officials working in a system that often relies on gut instinct. Risk-evaluation tools have emerged as a centerpiece of efforts to reduce the U.S. inmate population, which jumped from around 200,000 in the early 1970s to over 2 million today.
Many parole boards now weigh risk scores when considering early release, and prison officials use them to determine the level of security offenders need during their stay. But the adoption of such tools has sparked a debate over which factors are acceptable. Attributes such as age or sex, which employers are generally forbidden from including in hiring decisions, are considered by criminal-justice experts to be strong predictors of whether an offender is likely to commit a crime in the future.
The measures vary widely but generally are based on an offender's criminal history and, in addition to age and sex, may include marital status, employment and education, according to Sonja Starr, a law professor at the University of Michigan.
Pennsylvania, one of the latest states to turn to actuarial tools in sentencing, is building a test that weighs the nature of offense, criminal history, age, sex and county of residence. The last factor is the most controversial as it could be considered a proxy for socioeconomic status. Missouri takes into account current offense and criminal history, age, whether the offender has a history of substance abuse, education level and employment.
Judges aren't bound by the evaluations, but there is evidence they are taking them into account. Virginia officials attribute a more than 25% drop in the number of nonviolent offenders sent to prison annually to the assessments, used to score felons convicted of fraud, larceny and drug crimes since 2003. In the past decade, the percentage of offenders serving prison terms for violent crime has risen to 74% from 61%, said Chief Judge Bradley B. Cavedo of Richmond Circuit Court. "It doesn't really control the outcome, but it is useful information," he said of the measures.
The efforts have drawn skepticism from Attorney General Eric Holder, who told a group of defense lawyers in Philadelphia last month that basing sentencing on factors such as a defendant's education level "may exacerbate unwarranted and unjust disparities."
There is no research yet on whether the use of risk evaluations in sentencing has aggravated, for example, the gap between sentences for black and white men for similar crimes. Ms. Starr said the disparities created by risk measures are evident. "When it comes down to it, these assessments stand for the proposition that judges should sentence people longer because they were in foster care as children or had too many bouts of unemployment," she said.
Christopher Slobogin, a Vanderbilt University law professor, said the alternative was potentially worse. "At least these risk-assessment instruments don't explicitly focus on race or poverty, unlike what might occur in a sentencing regime where judges are making risk assessments based on seat-of-the-pants evaluations," he said.
Recent related posts:
- "Attorney General Eric Holder to Oppose Data-Driven Sentencing":
- Three distinct takes on AG Eric Holder's recent reservations about risk-based sentencing
- Senator Whitehouse defends risk-assessment tools for some sentencing determinations
September 23, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (6) | TrackBack
Highlights from AG Holder's big speech today at the Brennan Center for Justice
As noted in this prior post and as detailed in this official Justice Department press release, Attorney General Eric Holder gave a big speech today in New York at the Brennan Center for Justice's conference on the topic of "Shifting Law Enforcement Goals to Reduce Mass Incarceration." Here are some highlights from a speech that all sentencing fans will want to read in full:
As you know, we gather this afternoon just over a year after the launch of the Justice Department’s Smart on Crime initiative — a series of important changes and commonsense reforms I set in motion last August. Already, these changes are fundamentally shifting our response to certain crime challenges —particularly low-level, nonviolent drug offenses. And this initiative is predicated on the notion that our work as prosecutors must be informed, and our criminal justice system continually improved, by the most effective and efficient strategies available.
After all — as I’ve often said — the United States will never be able to prosecute or incarcerate its way to becoming a safer nation. We must never, and we will never, stop being vigilant against crime — and the conditions and choices that breed it. But, for far too long — under well-intentioned policies designed to be “tough” on criminals — our system has perpetuated a destructive cycle of poverty, criminality, and incarceration that has trapped countless people and weakened entire communities — particularly communities of color....
Perhaps most troubling is the fact that this astonishing rise in incarceration — and the escalating costs it has imposed on our country, in terms both economic and human — have not measurably benefited our society. We can all be proud of the progress that’s been made at reducing the crime rate over the past two decades — thanks to the tireless work of prosecutors and the bravery of law enforcement officials across America. But statistics have shown — and all of us have seen — that high incarceration rates and longer-than-necessary prison terms have not played a significant role in materially improving public safety, reducing crime, or strengthening communities.
In fact, the opposite is often true. Two weeks ago, the Washington Post reported that new analysis of crime data and incarceration rates — performed by the Pew Charitable Trusts, and covering the period of 1994 to 2012 — shows that states with the most significant drops in crime also saw reductions in their prison populations. States that took drastic steps to reduce their prison populations — in many cases by percentages well into the double digits — saw crime go down as well. And the one state — West Virginia — with the greatest increase in its incarceration rate actually experienced an uptick in crime.
As the Post makes clear: “To the extent that there is any trend here, it’s actually that states incarcerating people have seen smaller decreases in crime.” And this has been borne out at the national level, as well. Since President Obama took office, both overall crime and overall incarceration have decreased by approximately 10 percent. This is the first time these two critical markers have declined together in more than 40 years. And although we have a great deal of work to do — and although, last year, some states continued to record growth in their prison populations — this is a signal achievement....
Over the past year, the federal prison population declined by roughly 4,800 inmates — the first decrease we’ve seen in many decades. Even more promising are new internal projections from the Bureau of Prisons. In a dramatic reversal of prior reports — which showed that the prison population would continue to grow, becoming more and more costly, overcrowded, and unsafe — taking into account our new policies and trends, our new projections anticipate that the number of federal inmates will fall by just over 2,000 in the next 12 months — and by almost 10,000 in the year after.
This is nothing less than historic. To put these numbers in perspective, 10,000 inmates is the rough equivalent of the combined populations of six federal prisons, each filled to capacity. Now, these projected decreases won’t result in any prison closures, because our system is operating at about 30 percent above capacity. But my hope is that we’re witnessing the start of a trend that will only accelerate as our Smart on Crime changes take full effect.
Clearly, criminal justice reform is an idea whose time has come. And thanks to a robust and growing national consensus — a consensus driven not by political ideology, but by the promising work that’s underway, and the efforts of leaders like Senators Patrick Leahy, Dick Durbin, Mike Lee, and Rand Paul — we are bringing about a paradigm shift, and witnessing a historic sea change, in the way our nation approaches these issues. ...
The Smart on Crime initiative is in many ways the ultimate expression of my trust in the abilities — and the judgment — of our attorneys on the front lines. And although some have suggested that recent changes in charging and sentencing policies might somehow undermine their ability to induce cooperation from defendants in certain cases, today, I want to make it abundantly clear that nothing could be further from the truth.
As I know from experience — and as all veteran prosecutors and defense attorneys surely recognize — defendant cooperation depends on the certainty of swift and fair punishment, not on the length of a mandatory minimum sentence. Like anyone old enough to remember the era before sentencing guidelines existed and mandatory minimums took full effect, I can testify to the fact that federal guidelines attempted to systematize the kinds of negotiations that were naturally taking place anyway. As our U.S. Attorney for the Western District of Wisconsin, John Vaudreuil, often reminds his colleagues, even without the threat of mandatory minimums, it remains in the interests of all attorneys to serve as sound advocates for their clients — and for defendants to cooperate with the government in exchange for reduced sentences.
Far from impeding the work of our prosecutors, the sentencing reforms I’ve mandated have strengthened their discretion. The contention that cooperation is somehow dependent on mandatory minimums is tied to a past at tension with the empirical present, and is plainly inconsistent with history, and with now known facts. After all, as the Heritage Foundation observed earlier this year: “[t]he rate of cooperation in cases involving mandatory minimums is comparable to the average rate in all federal cases.”
Of course, as we refine our approach and reject the ineffective practice of calling for stringent sentences against those convicted of low-level, nonviolent crimes, we also need to refine the metrics we use to measure success; to evaluate the steps we’re taking; and to assess the effectiveness of new criminal justice priorities. In the Smart on Crime era, it’s no longer adequate — or appropriate — to rely on outdated models that prize only enforcement, as quantified by numbers of prosecutions, convictions, and lengthy sentences, rather than taking a holistic view. As the Brennan Center and many others have recognized — and as your landmark report on Federal Prosecution for the 21st Century makes crystal clear — it’s time to shift away from old metrics and embrace a more contemporary, and more comprehensive, view of what constitutes success....
Your concrete recommendations — that federal prosecutors should prioritize reducing violence, incarceration, and recidivism — are consistent with the aims of the Smart on Crime initiative. The new metrics you propose — such as evaluating progress by assessing changes in local violent crime rates, numbers of federal prisoners initially found in particular districts, and changes in the three-year recidivism rate — lay out a promising roadmap for us to consider. And my pledge to you today is that my colleagues and I will not merely carefully study this critical report — we will use it as a basis for discussion, and a vital resource to draw upon, as we engage in a far-reaching process to develop and codify new success measures — with the aim of cementing recent shifts in law and policy.
One of the key points underscored by your report — and emphasized under the Smart on Crime approach — is the need for the Justice Department to direct funding to help move the criminal justice field toward a fuller embrace of science and data. This is something that we — and especially our Office of Justice Programs and Bureau of Justice Assistance — have taken very seriously throughout the Obama Administration. And nowhere are these ideals more fully embodied — or more promisingly realized — than in our Justice Reinvestment Act and Second Chance Act programs....
Thanks to bipartisan support from Congress, funding for the Justice Reinvestment Initiative has more than quadrupled this year. That, on its own, is an extraordinary indication of the power and importance of this work. And this additional funding is allowing us to launch a new challenge grant program — designed to incentivize states to take the next major step in their reform efforts.
Today, I am pleased to announce that five states — Delaware, Georgia, Louisiana, Ohio, and Oregon — will be receiving these grants, which can be used to expand pre-trial reforms, to scale up swift and certain sanctions, to institute evidence-based parole practices, or a number of other options. I am also pleased to announce that five states have been selected to receive new funding under the Second Chance Act to help reduce recidivism. Georgia, Illinois, Iowa, Minnesota, and Vermont will each be awarded $1 million to meet their recidivism reduction goals. And each will be eligible for an additional $2 million over the next two years if they do so.
September 23, 2014 in Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack
Friday, September 19, 2014
"The Most Senior Wall Street Official: Evaluating the State of Financial Crisis Prosecutions"
The title of this post is the title of this notable new article on SSRN authored by Todd Haugh. Here is the abstract:
This September marks six years since the collapse of Lehman Brothers and the height of the financial crisis. Recently, a growing debate has emerged over the Justice Department’s failure to criminally prosecute Wall Street executives for their role in creating the crisis. One side of that debate contends the government has failed to bring to justice individual wrongdoers — primarily the heads of banks operating in the mortgage-backed securities market — instead preferencing enforcement decisions that target corporations, resulting in punishments that are “little more than window-dressing.” The other side argues that cases against individuals are precluded by the realities of the federal criminal justice system, and that “corporate headhunting” will only inhibit meaningful regulatory reform.
It is difficult, however, to evaluate these competing claims without proper context. This Article explores the recent conviction and sentencing of Wall Street executive Kareem Serageldin as a means of providing that context. Although Serageldin has been trumpeted as the “the most senior Wall Street official” to be sentenced for conduct committed during the financial crisis, and his conviction was framed as a victory in punishing those accountable for the financial collapse, a critical look at his case reveals he committed only a mundane white collar crime marginally related to the crisis. This disconnect creates a unique lens through which to understand and evaluate the current state of — and debate surrounding — financial crisis prosecutions. And it ultimately highlights the merits, and shortfalls, of each camp’s arguments. The Article concludes by offering something largely absent from the current debate: specific proposals for how we might go about prosecuting individuals so as to prevent the next crisis.
Thursday, September 18, 2014
Long-incarcerated mass murderer given right to end his life in Belgium
A helpful reader alerted me to this fascinating article from overseas headlined "Serial murderer and rapist, 50, given right to die under controversial Belgian euthanasia laws." Here are excerpts:
A serial murderer and rapist has been given the right to end his life under controversial Belgian euthanasia laws, it has emerged. Frank Van Den Bleeken, 50, has been behind bars for 30 years and has no hope of release because of his intensely violent urges. Now judges in Brussels have agreed that Van Den Bleeken can commit suicide with the help of medics.
Jos Vander Velpen, the prisoner’s lawyer, said: ‘Over recent years, he has been seen by several doctors and psychologists and their conclusion is that he is suffering, and suffering unbearably.’
It will be the first time that a Belgian legal ruling about euthanasia which specifically applies to a serving prisoner has been handed down. It was rubber stamped by the country’s Justice Ministry, which is ultimately responsible for everyone serving time in jail.
In all cases, patients must be conscious and have presented a ‘voluntary, considered and repeated’ request to die. Mr Vander Velpen said his client met all such conditions, and for the past four years had felt he ‘couldn’t stand to live like this any longer and could no longer accept the pain’.
Van Den Bleeken will be transferred from his prison in Bruges to a hospital, where he will be euthanised. Like every other country in the Union, Belgium does not have a death penalty, and technically doctors will only be helping Van Den Bleeken die.
Van Den Bleeken himself said in recent TV documentary: ‘If people commit a sexual crime, help them to deal with it. Just locking them up helps no one — neither the individual, society or the victims. ‘I am a human being, and regardless of what I’ve done, I remain a human being. So, yes, give me euthanasia.’
Despite being a mainly Roman Catholic country, Belgium has always been at the forefront of liberalising euthanasia laws. It made euthanasia legal in 2002, making it only the second country in the world to do so after Holland. Last year alone, Belgium euthanised a record 1,807 people.
Van Den Bleeken has only left prison once in the past three decades — to attend his mother’s funeral. A Belgian justice ministry spokesman said Van Den Bleeken would be euthanised ‘shortly’ at this own request.
Perhaps unsurprisingly, the decision to grant Van Den Bleeken a right to die, as evidenced by this companion commentary piece headlined "Why should our sister's killer be allowed to die with dignity when our suffering goes on?". Here is an excerpt of that piece providing some more context:
Van Den Bleeken is the first serving prisoner to be granted the right to die because of psychological torment. Another Belgian inmate was euthanised last year but he suffered from an incurable physical illness. But, as a direct result of the ruling, 15 other Belgian prisoners have already applied for euthanasia, even though the death penalty was abolished in 1996.
The case has renewed controversy about state-sanctioned suicide and raised serious ethical concerns. But it also calls into question the very nature of punishment and whether murderers and rapists should “suffer” for their heinous crimes or get treatment and rehabilitation.
Medics warn that euthanasia must not become an alternative to treatment while prison reformers insist it must not become a back-door return to the death penalty.
The country’s leading euthanasia advocate is also opposed to Van Den Bleeken’s death. Professor Wim Distelmans, chairman of the Belgian Board of Control for Euthanasia ... said: “It is wrong to allow him to end his life like this.” But Nikhil Roy, Director of Programmes at Penal Reform International, said: “While people are in prison it is the responsibility of the prison authorities to provide adequate care and opportunities for rehabilitation. This case highlights the lack of adequate therapy for prisoners and the fact that mental health issues are widespread in prisons around the world.”
September 18, 2014 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (2) | TrackBack
Monday, September 15, 2014
Congressional Budget Office reports Smarter Sentencing Act would save federal taxpayers $4.36 billion
As reported in this new piece from The Hill, which is headlined "CBO: Drug sentencing reform saves $4B," this is now an official congressional estimate of just how much federal taxpayer monies would be saved if the Smarter Sentencing Act were to become law. Here are the basics:
Sens. Dick Durbin (D-Ill.) and Mike Lee (R-Utah) announced that their bill to reform nonviolent drug sentencing would reduce prison costs by more than $4 billion. “Making smart reforms to our drug sentencing laws will save the taxpayers billions of dollars,” Lee said on Monday.
On Monday, the Congressional Budget Office (CBO) reported that Durbin and Lee’s bill would save the federal government $4.36 billion in prison costs by giving federal judges more discretion in sentencing those convicted of non-violent drug offenses.
“Today’s CBO report proves that not only are mandatory minimum sentences for non-violent drug offenses often unfair, they are also fiscally irresponsible,” Durbin said. “By making the incremental, targeted changes that Senator Lee and I have proposed in our Smarter Sentencing Act, we can save taxpayers billions without jeopardizing public safety.”
This press release from Senator Mike Lee's office provides more context and details about potential SSA savings and the broad support the bill has already garnered:
CBO is the second government agency to conclude that the Durbin-Lee bill would produce billions of dollars in savings. The Department of Justice, which administers our federal prison system, has estimated that the bill would avoid prison costs of nearly $7.4 billion in 10 years and $24 billion in 20 years.
With federal prison populations skyrocketing and approximately half of the nation’s federal inmates serving sentences for drug offenses, the Smarter Sentencing Act would give federal judges more discretion in sentencing those convicted of non-violent drug offenses....
The bipartisan Smarter Sentencing Act is supported by faith leaders from the National Association of Evangelicals to the United Methodist Church. It is supported by groups and individuals including Heritage Action, Justice Fellowship of Prison Fellowship Ministries, Major Cities Chiefs Association, the ACLU, Grover Norquist, International Union of Police Associations, the National Organization of Black Law Enforcement Executives, the Leadership Conference on Civil and Human Rights, more than 100 former prosecutors and judges, the NAACP, Association of Prosecuting Attorneys, the Sentencing Project, American Conservative Union, Police Executive Research Forum (PERF), the Council of Prison Locals, Ralph Reed, Open Society Policy Center, American Correctional Association, the American Bar Association, National Black Prosecutors Association, the National Association of Criminal Defense Lawyers, National Task Force to End Sexual and Domestic Violence, Families Against Mandatory Minimums, Texas Public Policy Foundation, and the Constitution Project.
September 15, 2014 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack
"Unbundling Criminal Trial Rights"
The title of this post is the title of this intriguing short paper by John Rappaport that I just saw on SSRN. Here is the abstract:
The notion that criminal defendants are put to an all-or-nothing choice between the guilty plea and full-blown jury trial is both pervasive and wrong. Defendants can, and sometimes do, “unbundle” their jury-trial rights and trade them piecemeal, consenting to streamlined trial procedures to reduce their sentencing exposure.
This Article explores what happens if, once and for all, we eschew the all-or-nothing framework and actually encourage these “unbundled bargains.” The parties could then tailor court procedures by agreement. Defendants, for example, could bargain for sentencing leniency by consenting to a six-person jury. Or the parties could agree to submit a case to private arbitration. Would such a world be better or worse than the one we have now? This Article takes a first cut at this question, making the uneasy case that the benefits of unbundled bargaining plausibly outweigh the costs.
Encouragingly, private prison company CCA turning focus to reducing recidivism
This recent Wall Street Journal article, headlined "Prison Firm CCA Seeks to Reduce Number of Repeat Offenders: Company Pushes to Reduce Costs Associated with Recidivism," reports on a private industry's latest encouraging response to the latest market realities in corrections. Here are the details:
The nation's largest private prison company is shifting its focus toward helping release more inmates and keep them out — a reaction, company officials say, to changing policies around the country on the severity of criminal punishment.
After three decades of surging prison populations, the number of people behind bars is starting to decline, albeit slowly. There were more than 2 million people locked up in federal and state prisons and jails in 2012, the last year for which the Justice Department has published data. That year saw prisons and jails release 27,500 more inmates than they took in, marking the fourth year of a declining prisoner population.
Yet repeat offenders remain a costly headwind. A Justice Department study of data from 2005 to 2010 in 30 states found that three out of four released prisoners will be rearrested within five years of their release. Getting a high-school equivalency degree while in prison, however, can greatly reduce the chances of being rearrested, studies show. A 2013 study by the Rand Corp. think tank concluded that spending $140,000 to $174,000 on education programs for a hypothetical group of 100 inmates would save as much as $1 million in re-incarceration costs over a three-year period.
Damon Hininger, chief executive of Nashville, Tenn.-based Corrections Corp. of America, said in an interview that government clients are increasingly concerned about the long-term costs of housing inmates and are pushing CCA and other private operators to save them money by reducing recidivism, the number of inmates who are released only to do a repeat turn in prison.
He plans to expand the company's prison rehabilitation programs, drug counseling and its prisoner re-entry work in cities around the country. It's a significant shift for CCA, which has built a profitable business from incarcerating people—nearly 70,000 inmates are currently housed in more than 60 facilities. The company is the fifth-largest correction system in the country, after only the federal government and the states of California, Florida and Texas.
"This is a watershed moment for our company and we hope it will be for our entire industry," Mr. Hininger said. "We are determined to prove that we can play a leadership role in reducing recidivism and that we have every incentive to do so. The interests of government, taxpayers, shareholders, and communities are aligned. We all just need to recognize that and commit to that."...
Hedy Weinberg, executive director of the American Civil Liberties Union of Tennessee, has doubts about the company's new initiative. "It must be a challenge for CCA to implement programs that could reduce recidivism when that runs counter to the private prison model itself," she said. "We can only hope that CCA's interest in such programs indicate a shift away from its previous stance that 'reductions in crime rates' are a 'risk factor' for business and toward a completely new business model that does not rely on ever-growing mass incarceration."
Over the past two decades, government agencies have gravitated toward contracting with CCA or other private prison firms, often with a goal of saving money on the daily cost of housing inmates. In recent years, however, company officials are increasingly being asked by governments to cut down the cost of repeat offenders, Mr. Hininger said. Mr. Hininger compared the cost of recidivism on government budgets to the cost of long-term pension obligations and health-care coverage — issues that elected officials hadn't often thought of when drafting year-to-year budgets in the past but are now of increasing concern in more state capitals....
Jason Clark, a spokesman for the Texas Department of Criminal Justice, which contracts with CCA at some facilities, said the state began a push to expand rehabilitation and re-entry programs, which led to a drop in its recidivism rate from 25.3% to 22.6% over a three-year period. "Those are real numbers and real savings because less people are coming back into the prison system," Mr. Clark said. "We believe that continuing to invest in diversion and treatment initiatives is the best strategy to maintain a stable and successful criminal-justice system."
In a speech broadcast to CCA's roughly 15,000 employees, Mr. Hininger said the company plans to expand its postprison work around the country, noting that currently much re-entry work is done by small businesses and nonprofit groups that lack CCA's ability to scale up such work in larger facilities in many cities. He declined to say which cities. "What we've seen as we've looked around the U.S., it is a little fragmented, as smaller operators providing these solutions," Mr. Hininger said in the interview. "We see an opportunity to provide some consistency and expertise."
Mr. Hininger emphasized rehabilitation has always been part of CCA's work, but said that going forward it would be part of each employee's job description. He said that from the first day a prisoner arrives, that prisoner should be evaluated and steered toward effective rehabilitation programs.
Stories like this partially account for why I tend to be more hopeful than most other reform advocates concerning the role that private industry might play in improving the state of incarceration nation. Though I worry about how a profit motive can and will skew priorities and incentives in corrections, modern mass incarceration is the product of government agents playing politics much more so that the product of private actors pursuing profits. Consequently, I am eager to be open-minded about the potential for private players to improve the status quo, even while so many others claim that private prisons are sure to make bad matters worse.
Wednesday, September 10, 2014
The title of this post is the title of this notable and interesting new paper by Alexandra Natapoff now available via SSRN. Here is the abstract:
As the U.S. rethinks its stance on mass incarceration, misdemeanor decriminalization is an increasingly popular reform. Seen as a potential cure for crowded jails and an overburdened defense bar, many states are eliminating jail time for minor offenses such as marijuana possession and driving violations, and replacing those crimes with so-called “nonjailable” or “fine-only” offenses. This form of reclassification is widely perceived as a way of saving millions of state dollars — nonjailable offenses do not trigger the right to counsel — while easing the punitive impact on defendants, and it has strong support from progressives and conservatives alike.
But decriminalization has a little-known dark side. Unlike full legalization, decriminalization preserves many of the punitive features and collateral consequences of the criminal misdemeanor experience, even as it strips defendants of counsel and other procedural protections. It actually expands the reach of the criminal apparatus by making it easier — both logistically and normatively — to impose fines and supervision on an ever-widening population, a population who ironically often ends up incarcerated anyway when they cannot afford the fines or comply with the supervisory conditions.
The turn to fine-only offenses and supervision, moreover, has distributive implications. It captures poor, underemployed, drug-dependent, and other disadvantaged defendants for whom fines and supervision are especially burdensome, while permitting well-resourced offenders to exit the process quickly and relatively unscathed. Finally, as courts turn increasingly to fines and fees to fund their own operations, decriminalization threatens to become a kind of regressive tax, turning the poorest populations into funding fodder for the judiciary and other government budgets. In sum, while decriminalization appears to offer relief from the punitive legacy of overcriminalization and mass incarceration, upon closer inspection it turns out to be a highly conflicted regulatory strategy that preserves and even strengthens some of the most problematic aspects of the massive U.S. penal system.
September 10, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0) | TrackBack
Tuesday, September 09, 2014
Pitching argument to pitch death penalty as failed government policy
Daniel LaChance has this notable new op-ed in today's New York Times headlined "What Will Doom the Death Penalty: Capital Punishment, Another Failed Government Program?". Here are excerpts:
To opponents of the death penalty, recent accounts of botched executions and DNA-based exonerations of death-row prisoners have revived hope that judges and voters will finally see capital punishment for what it is: an intolerable affront to human dignity.
But while such optimism is understandable, it is misplaced....
[F]ederal oversight of capital cases ..., more than wrongful convictions and botched executions, is what is distinctive about the contemporary American death penalty. New layers of appeals and new issues to litigate at both the state and federal levels meant that inmates put to death in 2012 had waited an average of almost 16 years for their execution date. The deeply unsatisfying, decades-long limbo that follows a death sentence today is without precedent. The 3,054 men and women languishing on the nation’s death rows have become the unwitting cast of a never-ending production of “Waiting for Godot.”...
Efforts to remedy the problem by reforming the appellate process have been unsuccessful. In 1996, when the average stay on death row was approaching 11 years, Congress enacted legislation restricting death-row inmates’ access to federal courts, in order to speed up executions. But it didn’t work; since then, the time between sentencing and execution has grown by over 50 percent.
The problem, it turns out, isn’t foot-dragging by defense lawyers or bleeding-heart judges. It’s money. In California, for instance, the low wages paid by the state to qualified lawyers who take on indigent inmates’ appeals have meant that there aren’t enough lawyers willing to do the work. Inmates wait an average of three to five years after sentencing for a government-appointed lawyer to handle their appeal. And that’s just the beginning of a process — sometimes lasting 25 years or more — that a federal judge recently determined was so protracted that it made capital punishment in California unconstitutionally cruel and unusual....
As depressing as it may be to abolitionists driven by a commitment to human rights, Americans, most of whom are white and live above the poverty line, find it hard to sympathize with members of an indigent, mostly minority death-row population who have been convicted of horrible crimes. Preaching to the congregation rather than the choir, then, ought to focus on the failure of capital punishment to live up to the promise of retributive justice it once held.
Casual supporters of the death penalty can be made to recognize that the death penalty has become inextricably mired in the very bureaucracy and legalism it was once supposed to transcend, and that the only solutions to the problem — an elimination of appellate lawyers for death-row inmates or a financial bailout — are unlikely to be legal or feasible.
Resources for fighting the death penalty are scarce, and for too long, abolitionists have spent them appealing to the humanistic ideals they wished most Americans shared, instead of one they actually do: distrust of government. Arguing that the death penalty is an affront to human dignity just doesn’t work. But portraying it as another failed government program just might.