Friday, September 27, 2013
Judge Weinstein quickly responds to Second Circuit reversal of his below-mandatory-minimum child porn sentencingThanks to How Appealing here, I have just seen that Judge Jack Weinstein wasted little time in responding to the ruling yesterday by the Second Circuit in US v. Reingold (discussed here) that Judge Weinstein had erred when sentencing a young defendant who distributed child pornography below the applicable five-year mandatory minimum term based on the Eighth Amendment. Judge Weinstein's response appears in this nine-page Memorandum and Order, which gets started this way:
This case exemplifies the sometimes unnecessary cruelty of our federal criminal law. The Court of Appeals for the Second Circuit has ordered — pursuant to statutes it held binding — that defendant’s prison term be increased substantially; another 30 months must now be added to the term reluctantly imposed by the district court of 30 months in a prison medical treatment center — an additional period likely to be spent in the general prison population. See United States v. Reingold, No. 11-2826-cr (2d Cir. Sept. 13, 2013) (order reversing in part as to sentencing and remanding); United States v. Reingold, No. 11-2826-cr (2d Cir. Sept. 26, 2013) (opinion of the court remanding for resentencing). Such a long sentence is unjust.
After release from prison, C.R. will be severely restricted as a convicted sex offender in where, and with whom, he can live, work and recreate for up to life. See 42 U.S.C. §§ 16911, 16915(a)(1), 16915(b); N.Y. Correct. Law § 168-h(1); Judgment of Conviction, United States v. C.R., No. 09-CR-155 (E.D.N.Y. Jun. 21, 2011), ECF No. 157; cf. Michael Schwirtz, In 2 Trailers, the Neighbors Nobody Wants, N.Y. Times, Feb. 5, 2013, at A1 (discussing the lack of permissible, housing for “sex offenders”).
The effect of harsh minimum sentences in cases such as C.R.’s is, effectively, to destroy young lives unnecessarily. The ancient analog of our modern destruction of youngsters by cruel, unnecessarily destructive and self-defeating, long minimum prison sentences, was physically sacrificing them to ancient gods for the supposed benefit of society. Leviticus 18:21 (King James ed.) warns, “[T]hou shalt not let any of thy [children] pass through the fire to Molech.” See W. Gunther Plaut et al., The Torah: A Modern Commentary, 149 n.1, 883 (1981) (ancient human sacrifice of children); Maimonedes Mishneh Torah, 116 (Rabbi Eliyahu trans. with commentaries and notes, Moznaim Publ’g. Corp. 2001) (“[A] person who gives his descendants to Molech” is executed by stoning.). And a pillar of major religions is the banning of the sacrifice of children. Genesis 22:12-13; see Plaut et al., at 149 (“[R]eligion . . . rejects the sacrifice of a [mortal] son . . . .”). Yet we continue using the criminal law to unnecessarily crush the lives of our young.
An important duty of an Article III district judge is to prevent injustices by the government in individual cases. See United States v. Ingram, 2013 WL 2666281, at *14 n.9 (2d Cir. June 14, 2013) (Calabresi, J. concurring) (“[W]e judges have a right — a duty even — to express criticism of legislative judgments that require us to uphold results we think are wrong.” (footnotes and citations omitted)); Charles E. Wyzanski, Jr., A Trial Judge’s Freedom and Responsibility, 65 Harv. L. Rev. 1281, 1303 (1952) (“clearly ethical in its nature”); Jack B. Weinstein, Every Day Is A Good Day for A Judge To Lay Down His Professional Life for Justice, 32 Fordham Urb. L. J. 131, 155 (2004) (“The judge must decide: does this law violate the essence of my duty to . . . humanity.”). Where, as here, in the opinion of a ruling appellate court, the trial court has exceeded its power, at least the matter has been brought to the government’s and public’s attention, so that in due course, in our caring democracy, future injustices of this kind will be avoided.
Recent related post:
September 27, 2013 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (35) | TrackBack
"The New Asylums: Jails Swell With Mentally Ill"
The title of this post is the headline of this lengthy new investigative report published in The Wall Street Journal. Here are excerpts from the important article:
America's lockups are its new asylums. After scores of state mental institutions were closed beginning in the 1970s, few alternatives materialized. Many of the afflicted wound up on the streets, where, untreated, they became more vulnerable to joblessness, drug abuse and crime.
The country's three biggest jail systems — Cook County, in Illinois; Los Angeles County; and New York City — are on the front lines. With more than 11,000 prisoners under treatment on any given day, they represent by far the largest mental-health treatment facilities in the country. By comparison, the three largest state-run mental hospitals have a combined 4,000 beds.
Put another way, the number of mentally ill prisoners the three facilities handle daily is equal to 28% of all beds in the nation's 213 state psychiatric hospitals, according to the National Association of State Mental Health Program Directors Research Institute Inc. "In every city and state I have visited, the jails have become the de facto mental institutions," says Esteban Gonzalez, president of the American Jail Association, an organization for jail employees.
Correctional systems define mental illness differently. Generally, the term is used to describe prisoners who require medication for serious issues ranging from major depressive disorders to schizophrenia and bipolar disorders. Also included are inmates with diagnoses that warrant overnight stays in a mental hospital or who demonstrate serious functional impairment.
To get a snapshot of how the U.S. is grappling with such an explosive societal issue, The Wall Street Journal surveyed all 50 states about issues of mental health within their prison populations. Of the 22 states that provided detailed responses, their mental-health patient ratios ranged from one in 10 inmates to one in two. Inmates in all 23 responding states account for 55% of the prisoners in the U.S. under state jurisdiction.
In Oregon, the trend is particularly acute. Officials there estimate that half the state's 14,000 prison inmates suffer from some type of mental-health issue. Several states with large inmate populations, like Michigan and Illinois, reported to the Journal that about 8% to 10% of their inmates suffered from serious mental illnesses, such as schizophrenia. Smaller states, like Montana, said as many as 15% of their inmates suffered from serious mental illness.
Roughly 5% of all adult Americans suffer from a serious mental illness, according to a 2012 report by a division of the U.S. Department of Health and Human Services.
Caring for such distressed inmates is costly. National Alliance on Mental Illness, one of the leading advocacy research groups, estimates that prisoners with mental illness cost the nation $9 billion annually. Other challenges are evident. In Los Angeles, for example, the U.S. Department of Justice found in 1997 that mentally ill inmates were abused and endured conditions that violated their federal civil rights.
Earlier this month the DOJ sent a letter to L.A. officials saying that despite some apparent progress, there is "a growing number" of mentally ill inmates housed in general population quarters at Men's Central Jail, as well as a "recent increase in suicides." Assistant Los Angeles County Sheriff Terri McDonald said the growing population of mentally ill inmates "certainly strains the system." She said they would continue to work with DOJ officials "and we welcome their thoughts."
Some facilities have attempted to cope by hiring psychiatric staff and retraining prison officers. Few, however, claim to be adequately equipped to handle some of the nation's most mentally frail. A seeming revolving door compounds the problem: Upon their release, the mentally ill tend to find scant resources and often quickly fall back into the system, says Mr. Gonzalez.
Even in some areas that have seen reductions in the general inmate population, the mentally ill constitute a growing share of correctional space. For example, New York City's total prison population has fallen to 11,500, down from 13,576 in 2005. Yet the number of mentally ill prisoners has risen, to 4,300 from 3,319, says Dora Schriro, commissioner of corrections for the city. That means the city's percentage of mentally ill prisoners grew from 24% to 37%.
The picture echoes the past. Two centuries ago, reformers were disturbed to find large numbers of the mentally ill in jails, paving the way for the development of state-run institutions. In the 1950s and 1960s, complaints about abuses, advances in medication and a push to give the patients more independence led to another change, this time toward community settings. The weaknesses of that concept—a lack of facilities, barriers created by privacy laws and tightened local and state funding—has brought the picture full circle.
"Society was horrified to warehouse people in state hospitals, but we have no problem with warehousing them in jails and prisons," says Thomas Dart, sheriff of Cook County.
Monday, September 23, 2013
In praise of a stat-max fine that hits a federal white-collar defendant (and not the federal taxpayer) where it hurts
Some readers of this blog may come to (wrongly) believe I tend to disfavor most harsh punishments, whereas in fact I tend to favor most harsh punishments if and whenever they prove to be especially efficacious and economical. Consequently, I tend to be fairly skeptical of punishments in the form of lenghty terms of imprisonment, whereas I tend to be fairly supportive of punishments in other forms.
This mini backstory on my views is provided here to account for my particular affinity for the sentence imposed and now affirmed (via an unpublished ruling) in United States v. Turner, No. 12-6483 (6th Cir. Sept. 20, 2013) (available here). Here is how the opinion gets started, which provides a summary of the ruling and the facts which led up to the defendant's prosecution:
Arch Turner appeals a $250,000 fine imposed by the district court as part of his sentence for conspiring to buy votes. He argues that the fine is procedurally unreasonable because the court did not provide specific reasons for the variance from the Guidelines range of $4,000 to $40,000, and that it is substantively unreasonable because the court impermissibly considered Turner’s socio-economic status. We conclude that the court adequately explained its reasoning in open court, that any deficiencies in duplicative explanations did not rise to the level of plain error, and that the court did not impermissibly rely on Turner’s socio-economic status. Accordingly, we AFFIRM Turner’s sentence.
Arch Turner, a superintendent of the Breathitt County, Kentucky schools, led and assisted a group of people to buy votes for a candidate in a May 2010 primary election. He coordinated meetings in which he distributed funds he had received from third parties for the purpose of buying votes, and he withdrew cash from his own bank account for the same purpose. During the government investigation, Turner lied to an FBI agent, convinced a co-conspirator to lie to a grand jury, and attempted to convince another co-conspirator to lie to FBI agents. During one such attempt, he told a co-conspirator that the FBI had no evidence against them and that they would not get in trouble if neither of them told on the other. During another, Turner contacted his codefendant, which was a violation of his bond release, told his co-defendant that he could not tell on anyone because he had not seen cash change hands, and instructed his co-defendant to purchase a phone that could not be traced. Eventually, Turner decided the jig was up and pleaded guilty to conspiracy to defraud the United States through buying votes, in violation of 18 U.S.C. § 371 and 42 U.S.C. § 1973i(c).
Thanks to a plea deal, this vote-buying scoundral faced "an advisory Guidelines range of 18 to 24 months imprisonment plus 1 to 3 years of supervised release and a $4,000 to $40,000 fine ... [and a] statutory maximum sentence [of] 5 years of imprisonment plus 3 years of supervised release and a $250,000 fine." The district judge thereafter notified In October 2012, the district court issued a notice advising the parties that the court intended to consider an upward variance from the Guidelines range and sought at sentencing to hear arguments concerning an upward variance of “not only time but money.” In the end, the sentencing judge imposed a 24-month prison term (the top of the calculated range) as well as a stat-max fine of $250,000.
I suspect that a number of federal sentencing judges may have shared the view that the defendant in this case deserved to have the "book thrown at him," but I fear that most would have done so by increasing the length of the defendant's imprisonment rather than maxing out his fine. As a federal taxpayer who usually see little obvious public safety benefit from imprisoning a non-violent white-collar offender for more than a few years, I am pleased that the judge in this case concluded that it would be arguably more fair and efficient to punish in this case with a greater deprivation of property rather than a greater deprivation of liberty.
Detailing the extraordinary (and justified?) costs of one federal capital case in PhillyThis remarkable local story, headlined "Bill for Savage trial easily tops $10 million," details the remarkable price tag on seeking to achieve capital justice in one remarkable federal criminal case. Here are just some of the remarkable details:
No one protested when a federal jury recommended in June that Kaboni Savage be put to death. In just a few years, Savage had left a grisly trail in North Philadelphia. He gunned down one man, ordered the killing of five others, and directed the 2004 rowhouse firebombing that killed four children and two women.
The cocaine, PCP, and other drugs he peddled poisoned families, enticed boys into crime, and kept neighborhoods in decay. Those costs are immeasurable. Determining what taxpayers have spent to investigate, convict, and detain Savage is less so.
A review of records, as well interviews with lawyers and court officials, indicates the public price tag for stopping Savage easily tops $10 million, making it among the costliest prosecutions in city history.
Court-appointed lawyers for Savage and his codefendants have logged more than $3.3 million in fees and expenses -- a record for a federal case in Philadelphia -- and are still billing. The defense total is a fraction of the prosecution cost, according to one expert. Government lawyers, FBI agents, and staff spent years building the case against Savage, at times working on nothing else.
The jury selection and murder-racketeering trial in Judge R. Barclay Surrick's courtroom lasted seven months. The court shelled out $325,000 in per-diem payments and travel expenses for 1,100 prospective jurors and the 18 eventually picked for the trial, according to information compiled by court officials. Juror lunches and snacks topped $24,000. Transcripts cost $249,000.
On most days, a half-dozen U.S. marshals ringed the courtroom and escorted the defendants, jurors, and witnesses. Additional security and travel costs exceeded $283,000, the Marshals Service said....
"Frankly, no one should be surprised to see it cost this much," said Jon B. Gould, an American University law professor who has studied defense costs in federal capital cases. "If we're going to do it right, so that [death-penalty] convictions are accurate, it's going to cost money."
In his 2010 report to the U.S. Judicial Conference, Gould and a colleague, Lisa Greenman, found the median cost for one defendant in a capital case in 2004 was $465,000. The most expensive was $1.7 million per defendant. Those numbers are likely higher now....
In some ways, the Savage case was an anomaly. U.S. prosecutors in Philadelphia have sought the death penalty three other times since 1998, but never before convinced a jury. It also reflects an increase in the last decade in federal capital cases, among the most complex to try. And it comes amid government budget woes....
Savage was already serving a 30-year term for a 2005 drug-trafficking conviction when prosecutors built the murder case. The 2009 indictment cited 12 deaths, but the centerpiece was the firebombing he ordered from prison. The victims were the mother, son, and relatives of Eugene Coleman, a former associate preparing to testify against Savage. "He had never been held accountable for this," said Assistant U.S. Attorney David Troyer, the lead prosecutor. "There was no question that he needed to be held accountable."
Charged with Savage were his sister, Kidada, who helped plot the arson bombing; Robert Merritt Jr., an accused accomplice in the firebombing; and Steven Northington, a hitman for Savage in two other murders. All were eligible for the death penalty, though prosecutors ultimately decided not to seek it for Kidada Savage.
William Purpura, one of Kaboni Savage's lawyers, said the trial was inevitable because prosecutors wouldn't consider a plea deal for life in prison. "The government's only offer in Kaboni Savage's case was death," he said. Patricia Hartman, a spokeswoman for U.S. Attorney Zane D. Memeger, said the office would not confirm or deny any plea discussions. But during the trial, prosecutors argued that Savage deserved death because he had made it clear that he could - and would - orchestrate killings from prison....
In interviews, four of the eight court-appointed defense lawyers in the Savage trial said it was the most extensive and exhausting of their career, requiring 16-hour days and preventing them from taking any other clients. "Other than just sleeping, you weren't doing anything else," said Will Spade, one of Merritt's lawyers, who had been approved for $378,000 in fees through mid-August. "I turned a lot of work away - I think every defense lawyer in the case did that."
The bulk of the fees - $1.2 million - went to Savage's lawyers. Hoey, who had worked the case since February 2010 and served as the lead trial lawyer, billed $589,000. He said the case was like seven murder trials in one. When those ended, there was another trial - the penalty phase to determine whether Savage should die.
Defense lawyers also claimed $99,000 in case-related expenses through August. Purpura said nearly all of his were for his $3,000-a-month apartment at the Benjamin Franklin residences in Center City. "There was seven months where I lived in Philadelphia, stayed away from my family," he said. "We hunkered down with this case from early-morning hours to late at night."...
The U.S. Attorney's Office said it would be impossible to determine how much it spent on the case.... Gould said his research suggests prosecutions cost more than twice as much as capital defense. "They have to spend more - and they do," he said.
According to the FBI, the two investigators assigned to the Savage case spent six years working on it exclusively and an additional four years devoting half of their time to the investigation - a tally of more than $1 million even if both made less than six-figure salaries....
And still the case goes on. Kidada Savage and Merritt are awaiting sentencing and hearings on post-trial motions filed by their lawyers. Kaboni Savage's attorneys have also filed motions asking the judge to overturn the verdict or sentencing. Any decision is likely to be appealed.
Savage will wait with 58 others on death row. Only three inmates have been executed - and none in a decade - since the federal death penalty was reinstated in 1988. Troyer, 55, said he expects Savage will cost the government time and money for years to come. "I wouldn't be surprised if this case outlives my longevity with the department -- if not the earth," he said.
I share the federal prosecutor's view that Kaboni Savage needed to be held accountable for all his carnage, and I have long thought that the death penalty is an essential punishment for anyone who has murdered multiple victims and seems likely to murder again if only given an life sentence. Nevertheless, given the federal prosecutor's also astute view that Savage seem likely to be able to appeal his death verdict (and thus forestall his execution) for decades, I find it still hard to avoid thinking that the extraordinary human and economic resources invested in this prosecution constitute a less-than-ideal expenditure of federal taxpayer resources.
Saturday, September 21, 2013
"(Ad)ministering Justice: A Prosecutor's Ethical Duty to Support Sentencing Reform"The title of this post is the title of this (quite timely) new article now available via SSRN and authored by R. Michael Cassidy. Among the reasons this article is notable is because its author was a state prosecutur for nearly a decade. Here is the abstract:
This article stakes out an ethical argument in favor of prosecutorial leadership on sentencing reform. Prosecutors have a duty as “ministers of justice” to go beyond seeking appropriate conviction and punishment in individual cases, and to think about the delivery of criminal justice on a systemic level ― promoting criminal justice policies that further broader societal ends. While other authors have explored the tensions between a prosecutor’s adversarial duties and “minister of justice” role in the context of specific litigation, few have explored what it means to be an “administer” of justice in the wider political arena. The author sets forth a new construct of what is required for a prosecutor to be a neutral, nonpartisan “administer of justice” in her legislative and public advocacy activities.
Applying this paradigm to the ongoing national debate about sentencing reform, the author argues that a prosecutor’s administrative responsibilities as a leader in the criminal justice establishment and her fiduciary responsibilities as a representative of the sovereign should compel her to join in the effort to repeal mandatory minimum sentencing provisions for most drug and non-violent offenses. Not only are mandatory sentences in most instances unduly harsh, coercive, and inefficacious, but they allow for an arbitrary and discriminatory application that is essentially unreviewable by courts. The author distinguishes this argument against mandatory minimum penalties from the so-called “Smart on Crime” movement, by grounding a prosecutor’s duty to promote sentencing reform in ethical reasoning as opposed to pragmatic or cost-savings considerations.
Even with robust political support from some of this nation’s most conscientious prosecutors, state legislatures are unlikely to repeal or cut back on all mandatory minimum sentences. Some mandatory prison terms ― for crimes such as murder, repeat offense OUI, and aggravated sexual offenses — will likely stay on the books notwithstanding the advocacy recommended above. A second question the author addresses in this article is how an ethical prosecutor should make plea bargaining decisions in the face of mandatory minimum prison terms retained by the legislature. While there has been substantial legal scholarship to date that has decried the manner in which mandatory minimum penalties have transferred sentencing discretion from judges to prosecutors, beyond that descriptive lament there has been very little attention paid to how exactly prosecutorial discretion might be more meaningfully constrained through internal self-regulation. Prosecutors can mitigate many of the harsh and unjust consequences of mandatory minimum sentences by instituting and publishing clear office policies governing when line prosecutors may dismiss or reduce charges that carry them. The author proposes specific guidelines that state prosecutors should adopt to ensure a consistent and even-handed application of mandatory minimum penalties, so that line prosecutors do not abuse the substantial discretion that has been afforded them in the plea bargaining process.
Based on this abstract, I surmise that the author would assert not merely that Attorney General Holder's recent policy changes concerning charging practices in drug cases was a good idea, but that they were ethically required. I hope to see discussion of prosecutorial ethics among prosecutors in the comments to this post.
Some recent and older related posts:
- AG Holder to announce new charging policies to avoid some drug mandatories
- "Holder directs attorneys to seek reduced sentences in pending drug cases"
- Don't federal mandatory minimums preserve a lawless (and perhaps discriminatory) "luck-of-the-draw system" of sentencing?
- Scott Burns from National District Attorneys Association makes the prosecutors case for mandatory minimums
- "Who's Guarding the Henhouse? How the American Prosecutor Came to Devour Those He is Sworn to Protect"
- A timely article urging prosecutors to be "color-conscious" rather than "color-blind"
- "The Unchecked Charging Power of the Prosecutor"
Thursday, September 19, 2013
Notable new empirical research exploring legislators, prosecutors and "Expressive Enforcement"A helpful reader altered and recommended to me this notable new article on SSRN authored by Avlana Eisenberg and titled "Expressive Enforcement." Here is the abstract:
Laws send messages, some of which may be heard at the moment of enactment. However, much of a law’s expressive impact is bound up in its enforcement. Although scholars have extensively debated the wisdom of expressive legislation, their discussions have focused largely on enactment-related messaging, rather than on expressive enforcement. This Article uses hate crime laws — the paradigmatic example of expressive legislation — as a case study to challenge conventional understandings of the messaging function of lawmaking. The Article asks: How do institutional incentives shape prosecutors’ enforcement decisions, and how do these decisions affect the message of hate crime laws?
To answer that question, the Article presents original data from the first multi-state qualitative empirical study of hate crime prosecution. The findings help to explain a paradox: in archetypal hate crime cases involving animus directed at a victim’s core identity features — such as race or sexual orientation — prosecutors may decline to include hate crime charges because of statutory incentives, difficulty of proving motive, and concerns about jury reaction. Conversely, hate crime enforcement may be appealing to prosecutors in precisely those cases that are least likely to further the expressive purposes of hate crime laws. After exploring this mismatch, the Article identifies some areas where there may be irreconcilable tensions between the expressive goals of legislators and the incentives of prosecutors and, in other areas, offers recommendations to unify legislative goals with expressive enforcement.
Wednesday, September 18, 2013
Scott Burns from National District Attorneys Association makes the prosecutors case for mandatory minimumsThe Senate Committee on the Judiciary hearing entitled “Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences” is now underway as I write up this post. A live webcast can be accessed via this Senate webpage, which is also where the written testimony of all the witnesses are now linked. Not surprisingly, the only written statement supporting the mandatory minimum status quo from among the scheduled witnesses is made by Scott Burns, the Executive Director of the National District Attorneys Association (NDAA), and here is the heart of his written presentation:
Prosecutors have many tools to choose from in doing their part to drive down crime and keep communities safe and one of those important tools has been mandatory minimum sentences. While Federal mandatory minimum sentences sometimes result in outcomes that seem harsh, the vast majority of those cases are the result of a defendant that rejected plea negotiations, went to trial, and then received the sentence he or she said would be mandatory if convicted by a jury or judge. In addition, mandatory sentences have been extremely helpful to state and local prosecutors as leverage to secure cooperation from defendants and witnesses and solve other crimes or, in a drug distribution case, “move up the chain” and prosecute those at higher levels of sophisticated trafficking organizations; it is a tool that has been used sparingly but effectively by state and local prosecutors.
I submit that prosecutors across the country collectively shook their heads when General Holder directed his United States Attorneys to no longer prosecute or send to prison those who are first time offenders or those who have committed low level drug offenses. US Attorneys have never, to my knowledge, prosecuted low level offenses and, unless it is a serious case and often must involve a firearm, first time offenders do not go to prison. The prosecutors I know in America look at every available alternative before recommending that a person be sentenced to prison and, as such, are incensed by General Holder’s repetitive statements that America’s prisons are full of low-level drug offenders and non-violent offenders and first time offenders. That is a myth that must be dispelled if we are going to work together to try and make a great criminal justice system even better. Unless it is a murder or rape or violent offense, it is difficult to be sentenced to prison in state courts across America. The prosecutors I know look at probation, treatment programs, diversion, plea in abeyance, Drug Courts, supervised probation and work with Judges and defense counsel to look at every alternative but prison. It is only in those instances where someone has committed a terribly serious crime or, after repeated attempts to stop the person from reoffending — sometimes literally six and seven violations of probation — that an offender is sentenced to prison. And the reality is, together with other tools like mandatory minimum sentences, it has worked. So for anyone to say that our prisons are full of low-level, first time, minor drug offenders simply could not be further from the truth.
Prosecutors will tell you that it is a very small percentage of offenders that commit the vast majority of crimes, people who insist no matter what we do to change their behavior, commit crime after crime. Is it not appropriate, after all attempts have failed, or in the event the person commits a very serious offense, to sentence them to longer prison terms which has inarguably resulted in lower crime rates and safer communities?
A prosecutor told me the other day, after reading General Holder’s statements, “to me, I see this as we are three touchdowns ahead and many are now saying we should take out some of our best players — and mandatory minimum sentences are one of our best players”. Why now, with crime at record lows are sweeping changes being suggested? Why now, as we are getting even smarter on crime with programs like Drug Courts, 24/7 and Project Hope as carrots would we take away one of the most effective sticks?
NDAA continues to be willing to work with Congress and the Department of Justice, as we did when we worked together to address the crack/powder sentencing disparity with the Fair Sentencing Act, and on several other Congressional initiatives that have been proposed over the years; but if this is solely about money, that the number of people we incarcerated in America is too expensive, then I know I speak for Police Chiefs, Sheriffs, law enforcement officers at every level and prosecutors in saying that crime will go back up and we may very well be back to the “catch and release” days of old, which many would tell you didn’t really save money at all when the costs of investigations and prosecutions of those that reoffend are analyzed.
I will not seek to refute all the points made in this statement (some of which are plainly inaccurate), but I will note the peculiarity of having someone mostly talk up state imprisonment and sentencing policies as part of a hearing focused on "Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences." More importantly, it is important to recognize that this statement does not really engage or even address the justice or fairness or even cost concerns stressed by the critics of federal mandatory minimums (not does it make claims about the rule of law).
The essence of this defense of mandatory minimums is these mandated prison sentences have been prosecutors' "best player" in fighting the drug war and the broader war on crime. In the end, I am pleased to see a state prosecutor here making an honest and straight-forward and relatively simple claim that the crime control ends are worth the mandatory minimum means. And, candidly, if crime was still at levels that we saw 20 years ago, I might share this view. But I think even fans who get excited by huge wins by their favorite team still believe it is more fair, more humane and ultimately more effective in the long-term to stop beating up on the other team with "the most effective sticks" once they are up three touchdowns. And that is why I think it is time to see the federal prosecution team have to try to "running up the score" against serious crime at a lower human and economic costs than is currently being endured.
A few recent related posts:
- Gearing up for Senate hearing on "Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences"
- Don't federal mandatory minimums preserve a lawless (and perhaps discriminatory) "luck-of-the-draw system" of sentencing?
- Bill and Doug's excellent adventure ... debating mandatory minimums in Federalist Society Teleforum
- Shouldn't ALL federal defendants facing long mandatory minimum sentences seek postponements?
- AG Holder to announce new charging policies to avoid some drug mandatories
- More reporting on (and now seeking reactions to) AG Holder's big sentencing speech
Monday, September 16, 2013
Two new commentaries on California's enduring need for enduring sentencing and corrections reformCommentators in California soundly and sensibly recognize that last week's "deal" to deal with the state's overcrowded prisons (basics here) is not a long-term solution to the range of issues that helped lead to the state's problems in the first place. For example, this new Los Angeles Times op-ed by Lois Davis, a policy researcher at the Rand Corporation, stresses the need for better prison programming to reduce recidivism. Here are excerpts:
If California is serious about reducing its prison population, one crucial component will have to be reducing recidivism. Currently, a lot of the state's inmates are men and women who've been in prison more than once. They get out, they have little training or education, they can't get jobs and, in many cases, they return to lives of crime and find themselves back behind bars.
But a major new study of correctional education in U.S. state prisons suggests there are things California could do to slow that revolving door. Our research demonstrates that ex-offenders' futures may depend on what, if anything, they learn while behind bars....
My Rand Corp. colleagues and I recently completed a national study examining all the evidence on the effect of correctional education on recidivism and employment. We found that inmates who participated in correctional education programs — remedial education to develop reading and math skills, GED preparation, postsecondary education or vocational training — were 43% less likely to return to prison within three years of release in comparison to those who did not participate. That's a 13-percentage-point reduction in the risk of reoffending.
Inmates who receive correctional education behind bars are not just significantly less likely to return to prison; they are also more likely to find jobs after being released. Prisoners who participated in academic or vocational education programs had a 13% better chance of finding employment than those who did not. And prisoners who participated specifically in vocational training programs were 28% more likely to be employed after release from prison than those who were left out.
With times being tough and budgets tight, state policymakers, corrections officials and correctional education administrators will rightly ask whether the cost of providing such programs are worth the gains in lower recidivism. Our research shows that it is....
Failing to invest properly in education and training programs carries real risks, thrusting more uneducated and ill-equipped ex-cons onto the streets. And in California, that investment needs to be made not just in state prisons but in county jails too, since realignment has meant that many offenders who would have served their terms in prison are incarcerated in jails instead. The benefits of inmate education can extend far beyond prison walls. When former inmates are able to land jobs and stay out of prison, their families and communities gain too.
Similarly, though with a distinct reform focus, this local editorial stresses the need for broader sentencing changes in California. Here is an excerpt:
California has spent the past two decades learning a harsh, expensive lesson: The state does not have the financial resources to keep pace with the consequences of the hard-line sentencing laws imposed in the 1990s....
Politicians have long known that comprehensive sentencing reform is the solution, but have largely balked for fear of being labeled soft on crime. Until now. The compromise between Gov. Jerry Brown and Republican and Democratic legislative leaders on prison overcrowding creates a rare opportunity for California to seriously address the issue....
The challenge will be crafting new sentencing laws that deter crime, provide a fair punishment for criminal transgressions and reduce the state's 65 percent recidivism rate -- the highest in the nation. The national average is about 45 percent....
Comprehensive sentencing reform is the logical next step for California to create a sustainable, efficient and just state prison system. Maybe we can leave politics out of it.
September 16, 2013 in Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (5) | TrackBack
Sunday, September 15, 2013
Do deterrence concerns justify four death sentences in India for gang rape or is it retributive justice?The question in the title of this post is prompted by this New York Times review of the recent sentencing for four rapist and the broader problems of sexual violence in India. The piece is headlined "Many Doubt Death Sentences Will Stem India Sexual Attacks," and here are excerpts:
There was no mistaking the whoop of joy that rose outside Saket District Court on Friday, when word got out that four men convicted in last December’s horrific gang rape and murder had been sentenced to death by hanging. People burst into applause. They hugged whoever was beside them. They pumped the air with their fists....
But some of India’s most ardent women’s rights advocates hung back from Friday’s celebration, skeptical that four hangings would do anything to stem violence against women, a problem whose proportions are gradually coming into focus. “I think a lot of people were hugging each other because they thought this evil is localized, and it will be wiped out, and that is not the case,” said Karuna Nundy, a litigator who has argued before India’s Supreme Court. “The sad truth is that it is not a deterrent.”
From the moment it broke, the story of the 23-year-old woman who became known as “Nirbhaya,” or “fearless,” awoke real rage in the population. Hoping for a ride home from a movie theater, she and a male companion boarded a private bus, not realizing that the six men aboard had been cruising Delhi in search of a victim. After knocking her friend unconscious, they took her to the back of the bus and raped her, then penetrated her with a metal rod, inflicting grave internal injuries. An hour later, they dumped the pair out on the road, bleeding and naked. She died two weeks later of her injuries....
After intensive public discussion of the case, some changes followed with extraordinary speed. Reports of rape have skyrocketed; in the first eight months of this year, Delhi’s police force registered 1,121 cases, more than double the number from the same period in 2011 and the highest number since 2000. The number of reported molestations has increased sixfold in the same period.
The government created a fast-track court for rape cases and introduced new laws, criminalizing acts like voyeurism and stalking and making especially brutal rapes into a capital crime. Scholars have delved into the social changes that may be contributing to the problem, as new arrivals in India’s huge cities find themselves unemployed and hopeless, stuck in “the space below the working class,” as the writer Rajrishi Singhal recently put it in an editorial in The Hindu.
But many were thinking of something more basic — punishing the six (one, a juvenile, got a three-year sentence in August, and the driver was found dead in his cell in March) who attacked the woman in the bus. It was those people who found their way to the Saket courthouse on Friday. Many came like pilgrims, hoping to find closure in a case that had haunted them. Kiran Khullar arrived in a wheelchair, accompanied by her daughter, 17. “I have come here as a mother,” she said. “I came here only to see these men get the death penalty.”
A 62-year-old grandmother, Arun Puri, had scribbled the words “Hang them! Hang them!” on her dupatta, a traditional scarf. Asked whether she felt sorry for the defendants’ parents, she did not flinch. “If these men were my children,” she said, “I would have strangled them to death myself.”
Rosy John, 62, a homemaker watching the furor outside the courtroom, said her only objection to the death sentence was that it was too humane a punishment. “After death, they will get freedom,” she said. “They should be tortured and given shocks their whole life.”
In fact, it is unlikely the four men will be executed swiftly. The order must be confirmed by India’s High Court, and all four defendants may appeal to the High Court, the Supreme Court and the president for clemency. Some 477 people are on death row, inching through a process that often drags on for five or six years. Three people have been executed since 2004, and there were no executions for eight years before that.
Sadashiv Gupta, who defended one of the men, a fruit seller named Pawan Gupta, said he had assured his client that the sentence was likely to be commuted to life in prison, as most are. “I told him: ‘You are going to get the death penalty. Take it in stride, and don’t panic,’ ” said Mr. Gupta, sweating in his stiff white collar outside the courthouse. “I think he shall not be hanged.”
Polls show that Indians remain ambivalent about using the death penalty, with 40 percent saying it should be abolished, according to a survey by CNN, IBN and The Hindu, a respected daily newspaper. For many months already, advocates for women have questioned whether death sentences in the December case would distract people from the more difficult question of why Indian girls and women are so vulnerable to sexual violence.
Friday, September 13, 2013
"After Kerlikowske, What’s Next for America’s ‘War on Drugs’?"
The title of this post is the headline of this lengthy new commentary by Ted Gest over at The Crime Report. Here are excerpts from a piece that draws in large part from a notable new article on the topic appearing in Volume 42 of Crime and Justice:
“No one is happy with American drug policy,” Peter Reuter of the University of Maryland declares in a new overview of a debate that hasn’t changed dramatically in the last three decades. Reuter’s assessment (“Why has American Drug Policy Changed so Little in 30 years”) appears in a sweeping review of U.S. criminal justice published this month: Crime and Justice in America, Volume 42, 1975-2025, University of Chicago Press, 2013)
With the U.S. government awaiting a new “drug czar” — President Barack Obama has nominated current National Drug Control Policy Director R. Gil Kerlikowske to head the federal border protection agency — The Crime Report takes a look at Reuter’s views in some detail. The following summarizes Reuter’s principal arguments, but also includes new material not included in his original essay. The entire book can be ordered here....
Reuter makes [these] major assertions:
Marijuana must be treated separately as a social and criminal justice problem. It hardly touches the central problem of American criminal justice — the high incarceration of minorities — nor does it cause significant health and social harms.
Harm reduction, the idea that governments should pay attention to the harmfulness of drug use (not just to the number of users of drugs) is a big idea that has importantly changed drug policy in much of the Western world. In the United States, among the core harm reduction programs, only methadone maintenance has been accepted.
Legalization, the idea that drugs such as cocaine and heroin should be treated like alcohol and be made available legally under substantial regulatory restrictions, deserves separate discussion. Though Reuter argues it has no appeal to the general public, it attracts a great deal of interest from the educated elite and from some Latin American presidents.
The prevalence of drug use, the most widely reported measure of drug problems, is not a good target for drug policy. Policy should be oriented toward reducing violence, dysfunction, and disease related to drug use and to reducing the use of incarceration and reducing racial disparities in incarceration....
Contrary to the assumptions of many policymakers, there is very little evidence that enforcement can raise prices or reduce availability, the mechanisms through which it might reduce the prevalence of use. During a period of massively increased enforcement intensity (1980-2008), the retail prices of heroin and cocaine both fell about 70 percent.
If drug policy cannot affect prevalence, what can it do? We do know, writes Reuter, that bad policy choices can make drug use, drug distribution and production more harmful. For example, if the police choose to use possession of prohibited syringes as the basis for targeting heroin injectors, they may accelerate the spread of HIV....
The drug problem changes in unforeseen ways with occasional epidemics that are unpredictable in their occurrence and magnitude. For example, the use of diverted prescription drugs constitutes a significant and disturbing public health problem.
Corporate official gets above-guideline sentence for conspiracy to hide safety violationsA helpful reader alerted me to this federal sentencing story from West Virginia which provides a useful reminder that federal judges sometimes use their increased post-Booker sentencing discretion to impose sentences above recommended guideline ranges (and may do so even for a defendant who has pleaded guilty and cooperating with authorities). Here are the notable particulars from a lengthy article about a notable white-collar sentencing that followed a high-profile workplace disaster:
A former longtime Massey Energy official will spend 3 1/2 years in prison for his admitted role in a decade-long conspiracy to hide safety violations from federal safety inspectors. David C. Hughart, 54, of Crab Orchard, was sentenced Tuesday afternoon to 42 months in jail and three years of supervised release after he pleaded guilty to two federal charges as part of an ongoing federal probe of Massey's safety practices.
U.S. District Judge Irene Berger ordered Hughart to serve a full year more than the high end of the 24- to 30-month recommended under advisory federal sentencing guidelines. The judge said the stiffer sentence was needed to account for the safety risks Hughart's crimes created and to serve as a warning to other mining officials not to put production before safety. "This sentence will promote respect for the law," Berger said.
The Hughart sentencing is another step forward as U.S. Attorney Booth Goodwin and his top assistant, Steve Ruby, continue what is likely the largest criminal investigation of a coal-mine disaster in modern times. The probe started with the deaths of 29 miners on April 5, 2010, in an explosion at Massey's Upper Big Branch Mine in Raleigh County, and has so far prompted four convictions and expanded well beyond Upper Big Branch....
Hughart is cooperating with prosecutors, having pleaded guilty to one felony count of conspiracy to defraud the government by thwarting U.S. Mine Safety and Health Administration inspections and one misdemeanor count of conspiracy to violate MSHA standards.
During a plea hearing in February, Hughart had implicated former Massey CEO Don Blankenship in the conspiracy, and Hughart's family has said Hughart is being wrongly scapegoated while Blankenship and other top Massey executives have faced no criminal charges. "He was a slave to this industry, and Don Blankenship will never see the inside of a courtroom," Hughart's son, Jonathan Hughart, told reporters after Tuesday's sentencing hearing.
Through his lawyer, Blankenship has denied any wrongdoing. And on his blog, Blankenship has said Hughart lied about him and was fired from Massey for drug use and stealing from the company.
Prosecutors have said that former executives and board members of Massey "may be, or may become" targets in the ongoing federal criminal investigation....
Earlier Tuesday, Hughart's $10,000 personal recognizance bond was revoked by U.S. Magistrate Judge R. Clarke VanDervort after Hughart was arrested on Aug. 30 on charges of possession of painkillers and anti-anxiety medication without a valid prescription. Hughart's bond required him to comply with all local, state and federal laws....
While Hughart hasn't been convicted of the drug charges, the arrest increased his recommended sentence under federal advisory guidelines by nine months. Hughart's lawyer, Michael R. Whitt, had urged Berger to issue a lighter sentence, arguing that Hughart's crimes could not be linked to any mining injury -- let alone to the Upper Big Branch Disaster -- and that his client was caught up in the "corporate culture" at Massey.
Whitt told Berger that Hughart's life has been ruined, with him going from an affluent lifestyle and a six-figure mine official salary to losing his home and becoming essentially destitute. "I think he has the message already," Whitt said. "He already knows without spending another day in jail."
Prosecutors, though, had asked for a stiff sentence, noting the "risk to human life and health" created by the conspiracies that Hughart participated in at Massey. "The defendant risked the lives and health of hundreds of coal miners," Ruby told Berger during Tuesday's hearing.
Previously in the Upper Big Branch probe, a former miner at the operation, Thomas Harrah, was sentenced to 10 months in jail after he admitted to faking a foreman's license when he performed key mine safety examinations at the mine between January 2008 and August 2009, and then lied to investigators about his actions.
Berger sentenced a former Upper Big Branch security director, Hughie Elbert Stover, to 36 months in jail after Stover was convicted of two felonies: making a false statement and obstructing the government probe of the mine disaster.
And in January, the judge sentenced former Upper Big Branch superintendent Gary May to 21 months in jail and a $20,000 fine after he pleaded guilty to plotting to skirt safety rules and cover up the resulting hazards....
During Tuesday's hearing, Hughart apologized for his actions and told Berger he had learned from his early days as a miner that "advance notice" of inspections was the way things were done. "I accepted that as the practice, and I understand now it is a serious issue, and it is against the law," Hughart said.
Berger noted previous evidence in the Upper Big Branch cases that suggested MSHA inspectors knew about -- and perhaps even cooperated with -- mine operators having pre-inspection notice. "Advance notice was apparently a common practice in the industry," Berger said. "It's difficult to believe that the only people who were unaware of these practices were the MSHA inspectors."
Terry Ellison, whose brother, Steve Harrah, died at Upper Big Branch, attended Tuesday's court proceedings. "I came for the 29 miners," Ellison said. "I don't want them to be forgotten. There was no reason they should have been killed that day."
September 13, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack
Wednesday, September 11, 2013
Controlled Substances # 5: Are Drug Crimes “Victimless”?Alex Kreit, guest-blogging on his new casebook, Controlled Substances: Crime, Regulation, and Policy (Carolina 2013):
My last post touched on some of the legal and policy questions that come with investigating crimes where there is no complaining witness. The absence of a complaining witness leads some to refer to drug crimes as “victimless.” This description is accurate in the narrow sense that parties to a drug transaction don’t have an incentive to report the crime to the police.
But does that fact have any moral relevance?
Drug prohibition offers a great platform for examining the theories of punishment. Though we may disagree about how much punishment a thief, a killer, or a drunk driver should receive, few question that theft, murder, and driving under the influence should be against the law. By contrast, a number of theorists, policy analysts, and (I’ve found) law students believe that the criminalization of some or all drugs is unjust and/or unworkable. Of course, many others think that punishing drug manufacture, use and sale is a moral imperative.
The diversity of student views on drug prohibition can make for some very fun and rewarding classroom discussion. The second chapter of my casebook focuses on this debate, with materials that mix the theoretical with the real world.
The book divides coverage into two sections, roughly tracking deontological and consequentialist arguments. The first section (which I’ll focus on in this post) engages the “victimless” crime debate and asks whether drug criminalization is just. The second section asks whether drug criminalization works.
I try to draw students into the “victimless” crime debate with a 2011 case — Wisconsin v. Hoseman — that presents the issue in an engaging and, I think, somewhat unexpected setting. The case centers on a marijuana grower who was thoughtless in more ways than one. Hoseman rented an 1885 Victorian home and converted it into a six-figure marijuana business. But there was one problem for Hoseman. Apparently between tending to the plants and selling the product, he forgot to pay the rent!
After several months, the home’s owner flew back to Wisconsin from Las Vegas (where he was living) with plans to start an eviction action. Once the owner discovered Hoseman’s marijuana grow operation, however, he decided to call the police instead. Hoseman was convicted of manufacturing marijuana and ordered to pay the home’s owner over $100,000 pursuant to Wisconsin’s victim restitution statute.
Despite overwhelming evidence of damage to the home, Hoseman argued that marijuana manufacture is a “victimless” crime and that the home’s owner was not a “victim” as the term is defined in Wisconsin’s restitution statute.
Hoseman isn’t a very sympathetic character. And, not surprisingly, the Court disposed of his arguments in short order, reaching the “inescapable conclusion that the actions taken in furtherance of the conspiracy to manufacture marijuana caused the damage to the resident.”
The case poses a real challenge for students who believe that drug crimes are victimless. Sure, Hoseman’s customers aren’t likely to call the police, but that doesn’t mean he isn’t causing harm to others. In this case, there’s no doubt that Hoseman’s marijuana operation harmed the owner of the Victorian home. In other cases, a drug user may harm their child through neglect. With all these victims, how can anyone say that drug crimes are “victimless” with a straight face?
After I present students with this take on things, I try to lead them to a possible counter-argument: the home’s owner was a victim of “vandalism,” not a victim of “marijuana manufacture.” It certainly would have been possible for Hoseman to grow marijuana without damaging the Burbeys’ home by, for example, growing a smaller number of plants or designing his operation with greater care. Similarly, Hoseman could have caused just as much damage to the Burbeys’ home if he had grown a legal plant (say, tomatoes) in the same fashion as he had grown the marijuana.
This discussion of Hoseman nicely sets up the deeper examination of these issues that follows, relying on more theoretical materials including the obligatory excerpt of On Liberty, as well as excerpts from articles by Bernard Harcourt, Doug Husak, Steven Calabresi, and Dan Kahan.
I always find these class sessions to be some of the most enjoyable in the course. But they can also be the toughest. Many students will come to this debate with firmly held views that are often driven by personal experiences (from a bad encounter with the police to seeing a loved one struggle with addiction.) For that reason, when I teach this material, my goal is always to try and gently challenge the students to better understand and critically reassess their own beliefs.
Prior post in series:
- Professor Kreit guest-blogging on "Controlled Substances: Crime, Regulation, and Policy"
- Controlled Substances # 1: Teaching Drug Possession
- Controlled Substances # 2: Identifying the Kingpin: Easier Said than Done
- Controlled Substances # 3: Measuring Culpability by Measuring Drugs?
- Controlled Substances # 4: Investigating "Victimless" Drug Crimes
Tuesday, September 10, 2013
You be the federal sentencing judge: "Newlywed Admits to Pushing Husband off Cliff"The title of this post is drawn from the headline of this notable new local "real crime" story that is all the buzz this morning in lots of national media outlets. Based on the reported facts reprinted below, I am very interested in hearing reader instincts about what might be a fitting federal punishment for this killer bride (who is in federal custody because she committed her crime at a national park):
The wife of a 25-year-old Kalispell man, who was found dead in Glacier National Park in July, is now charged with his murder. Jordan Linn Graham, 22, appeared in federal court in Missoula on Monday on a charge of second degree murder in the death of her husband, Cody Lee Johnson.
Court documents allege the newlywed wife pushed her husband off a cliff in Glacier National Park during an argument just a week after they were married. Charging documents reveal Jordan Linn Graham told a friend she was having second thoughts about getting married to Cody Lee Johnson. Graham then told her friend she intended to discuss the matter with Johnson that night, Sunday, July 7. She followed up with a text message that read, "But dead serious. If you don't hear from me at all again tonight, something happened."
The next day, Monday, July 8, Johnson was reported missing when he failed to show up for work. Around 8:30 p.m. on Thursday, July 11, a Glacier National Park ranger was dispatched to the Lake Mcdonald Camp Store for a visitor reporting a dead body. The affidavit states that Graham was identified as the person who told the ranger she found a dead body.
Johnson's body was recovered the next day below a popular viewpoint on the Going-to-the-Sun Road called "The Loop." Graham was interviewed by FBI special agents on July 16, which was nearly one week after the disappearance of her new husband. It was then that she admitted to law enforcement that she lied about Johnson's death.
She told the FBI agent she and her husband were arguing on July 7 as they walked the Loop Trail. Documents say at one point, she turned to walk away, but Johnson grabbed her arm. Graham said she turned around and removed his hand from her arm. She went on to say that "she could have just walked away, but due to her anger, she pushed Johnson with both hands in the back and as a results, he fell face first off the cliff." During an initial interview with law enforcement, Graham said that Johnson left the house late with friends in a dark-colored car late on the night in question.
Graham faces a federal charge of second degree murder. If convicted, she could face life in prison.
The U.S. Sentencing Guidelines provide a base offense level of 38 for second-degree murder in section 2A1.2, which corresponds to an advisory guideline sentencing range of just under 20 to 25 years (assuming no significant criminal history). But I would expect a guilty plea here which alone, thanks to an acceptance of responsibility downward adjustment, could reduce the advisory range to 14 to 18 years. That said, the defendant's prior lies about the crime could lead to an obstruction of justice enhancement, and it is especially interesting to consider whether federal prosecutors could or should also argue for another offense level upward adjustment here based on abuse of a position of private trust.
Of course, the defendant might be able to secure a guilty plea to only a voluntary or involuntary manslaughter charge, which could and would alone dramatically reduce the applicable guideline sentence range (as evidenced here and here), perhaps even to a guideline level so low that the advisory range might even permit a within-guideline sentence involving an alternative to incarceration. And, of course, with the federal sentencing guidelines only advisory, a federal sentencing judge could surely develop under various 3553(a) factors various arguments to justify a sentence perhaps as high as life and as low as straight probation.
Though I am not teaching my upper-level sentencing course until next semester, I sincerely hope (and somewhat expect) that this case will stay in federal court and stay in the headlines for some time. As the discussion above is meant to highlights, this case serves as an interesting and accessible example of just how much discretionary sentencing play there is in the "joints" of the modern federal sentencing system for both litigants and judges.
UPDATE: The FBI affidavit which provided the basis for charges in this case is now available via this link.
September 10, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (22) | TrackBack
Monday, September 09, 2013
California killer claiming autism supports Atkins claim to preclude executionThis article from San Jose Mercury News reports on a notable effort by a killer on death row to raise a unique argument as part of an Atkins Eighth Amendment claim to prevent his execution. This piece is headlined "California death penalty and mental retardation: Condemned killer seeks reprieve," and here are excerpts:
More than six years ago, it appeared that condemned Santa Clara County killer David Allen Raley had run out of legal options to avoid execution. After two decades of appeals, the U.S. Supreme Court had rejected Raley's seemingly final challenge to his 1988 death sentence for murdering a Peninsula teenager and attempting to murder her high school friend.
But as is often the case for California's death row inmates, Raley's legal odyssey is far from over. Armed with a new order from the California Supreme Court, Raley has revived his appeals with a claim that he was mentally retarded at the time of his 1985 crime -- a finding that would spare him from execution under a 2002 U.S. Supreme Court decision.
On Monday, Santa Clara County Superior Court Judge Linda Clark will start a special two-week hearing in Raley's case, which among other evidence has raised the unique claim that he is autistic and therefore falls under the legal protections against executing the mentally retarded. Clark will issue a recommendation to the state Supreme Court, which will make a final decision on Raley's fate.
In the meantime, Raley's legal team argues the 51-year-old death row inmate should spend the rest of his life in prison for the 1985 murder of Jeanine Grinsell and the attempted murder of her close friend, Laurie McKenna, inside a deserted Hillsborough mansion. "It is very true that David Raley is significantly developmentally disabled," said Robert Bacon, one of Raley's lawyers....
In court papers submitted to Clark, prosecutors branded Raley's argument a belated legal Hail Mary to avoid lethal injection and scoffed at the suggestion he is mentally disabled, noting his IQ tests were never below the standard threshold for mental retardation. "(Raley) acted alone in committing these horrible crimes and the facts elicited at trial show evidence of premeditation, cunning and problem solving, all characteristics inconsistent with a diagnosis of intellectual disability," prosecutors wrote.
Raley's case is part of an increasingly common legal battle unfolding in recent years in California and other death penalty states, the result of the U.S. Supreme Court's ruling that it is unconstitutional to execute the mentally retarded. The high court left it to the states to sort out which death row inmates or defendants facing capital murder charges may fall under the murky definition of mental retardation, forcing courts to grapple with evaluating whether there is clear proof of the disability before the age of 18.
The California Supreme Court has issued orders in dozens of cases like Raley's in which death row inmates have made the claim, often decades after a crime and death sentence. These include Bay Area condemned killers Walter Cook, from San Mateo County, and Robert Young and Delaney Marks, sent to death row from Alameda County. Courts have also spared some murderers from the death penalty at trial, including convicted San Jose cop killer DeShawn Campbell, who was found to be mentally retarded and sent to prison for life....
Death penalty supporters say claims such as Raley's are contributing to the legal morass. "The fuzziness in the definition of retardation" has given death row inmates another avenue to contest their sentences, "even though generally meritless" said Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation.
But Raley's supporters say his case is an example of the state spending too much time and money on the death penalty. The American Civil Liberties Union cites his mental disability and costly appeals as reason to abandon capital punishment. "He's not the worst of the worst," Bacon added. "The interests of public safety could be served with life in prison without the possibility of parole."
September 9, 2013 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (11) | TrackBack
Saturday, September 07, 2013
Don't federal mandatory minimums preserve a lawless (and perhaps discriminatory) "luck-of-the-draw system" of sentencing?As part of our Federalist Society Teleforum earlier this week (noted/linked here), Bill Otis started with a thorough and thoughtful defense of federal mandatory minimum sentencing statutes. Helpfully, Bill has posted the full text of his "opening statement" at Crime & Consequences. I recommend a careful reading of Bill's advocacy, both to see how strong it is in many spots and also to notice its potential weaknesses.
As the title of this post highlights, I see one fatal weakness in Bill's advocacy for current federal mandatory minimums (FMMs). Specifically, these passages showcase that, while Bill claims he is eager to champion FMMs as a benefit to the "rule of law" at sentencing, what Bill really favors is the "rule of prosecutors" at sentencing that FMMs in fact facilitate:
"The Attorney General's remarks [to the ABA suggests] ... he wants to discard the last pillar of law-driven sentencing, to embrace a luck-of-the-draw system that pretends sentencing is fairer if it's more idiosyncratic....
"It is one thing, and wise, to give judges substantial discretion. It's another to give them all of it. Because judges vary widely in temperament, ideology and experience, letting individual judges decide without legislative constraint what the sentence will be is sure to lead to irrational disparity. Without Congressionally-imposed floors, we'll go back to the luck-of-the-draw. Some judges will stick with mandatory sentences and some won't. Nearly identical defendants with similar records will get widely varying treatment based solely on whose courtroom they're assigned to....
"Finally, existing law already provides at least three escape hatches for deserving defendants facing a mandatory minimum. Often, they can plea bargain their way to a lesser charge; such bargaining is overwhelmingly the way federal cases are resolved. Even if convicted under a mandatory minimum charge, however, the judge on his own can sidestep the sentence if the defendant has a minor criminal history, has not engaged in violence, was not a big-time player, and makes a clean breast of his crimes. This "safety valve," as it's known, has been in the law for almost 20 years. Separately, under existing law (Section 3553(e)), a defendant can avoid a mandatory minimum by helping prosecutors bring his cohorts to justice. Prosecutors correctly regard this as an essential tool in encouraging cooperation and, thus, breaking down conspiracies.
These are all important points, but they are in significant tension. Notably, despite his advocacy for "Congressionally-imposed floors," Bill seems to endorse the "three escape hatches for deserving defendants" that emerges from plea bargaining, providing substantial assistance or satisfying the statutory safety valve. What he does not mention is that individual federal prosecutors (operating off-the-record and not subject to any legal constraint or review) generally have complete or nearly complete control as to whether and when a defendant is "deserving" of benefiting from these escape hatches. In other words, it is FMMs with their prosecutor-controlled escape hatches in the current federal system that in fact create a true and pure "luck-of-the-draw system," but one in which it is only individual federal prosecutors get to "decide without legislative constraint what the sentence will be" because they get to decide, without any legal constraint or accountability, whether and when any Congressionally-imposed floors will be in play at sentencing.
Bill is often quick to assert in this setting that the Constitution demands prosecutors have complete and unfettered charging and bargaining discretion. But the Constitution plainly does not demand that Congress enact FMMs that function to enhance the most pernicious idiosyncratic aspects of "luck of the prosecutor" federal sentencing. Moreover, and even more worrisome, evidence collected by the US Sentencing Commission and federal judges and researchers about how federal prosecutors use their lawless discretionary powers in the modern federal sentencing era suggests defendants would be lucky to get "luck of the draw" sentencing from prosecutors. Much of the most cogent and comprehensive data analysis at least suggest that race and others very suspect sentencing factors disproportionately impact how prosecutors exercise their lawless discretion in the shadow of current FMMs. In other words, FMMs do not merely facilitate luck-of-the-draw prosecutorial sentencing, but may well foster discriminatory sentencing decision-making.
(As a relevant aside, I must note that Bill again avoids any discussion of perhaps the most troublesome of FMMs because neither law or logic begins to explain when and how idiosyncratic federal prosecutors use their charging and bargain powers to "decide without legislative constraint what the sentence will be." I speak here of federal child porn sentencing provisions in which downloaders charged by prosecutors with possession offenses face no mandatory minimum term, but those charged with receipt offenses face a FMM. In recent years, hundreds of "identical defendants with similar records [who download CP] get widely varying treatment based solely on" whether a federal prosecutor decided to charge a possession or receipt offense. And, of course, while the US Sentencing Commission and other researchers can and do scour transparent and documented courtroom sentencing decisions in CP cases to see if and when there is lots of unjustified sentencing disparity as a result of judicial sentencing discretion, it is near impossible even to collect data from the hidden and undocumented prosecutorial sentencing decisions that FMMs facilitate.)
In sum, I share Bill's profound disaffinity for a lawless "luck-of-the-draw system that pretends sentencing is fairer if it's more idiosyncratic." But that disaffinity is what makes me an advocate for reforming or eliminating many current FMMs. Both formally and functionally, the rule of law and our constitutional system of check-and-balances are better served by a federal sentencing system with few if any FMMs. But, if you prefer a "rule of prosecutors" to the "rule of law," if you think a lawless luck-of-the-draw system is okay as long as it is mostly run by partisan prosecutors, then the current FMM reality should be to your liking as well as to Bill's.
Friday, September 06, 2013
New commentary calls "creative" shaming punishments "terrible" (on curious grounds)Slate's crime correspondent, Justin Peters, has this notable new commentary headlined "Dear Judges: Your Creative Punishments Are Hilarious and Also Terrible. Please Stop." I will reprint below the commentary in full (with original links also reproduced) because I always find these kinds of (purportedly rightous) attacks on creative shaming sentences puzzling and curious:
If there’s one thing Americans love, other than the troubled-restaurant-turnaround stylings of Gordon Ramsay, it’s judges who impose “stunt” sentences on defendants. These sorts of stories crop up a couple of times per year, and they always seem to make the “lighter side” segment on the 10:00 news. The most recent example of this comes from Cleveland, where Judge Pinkey Carr sentenced a man named Richard Dameron, who threatened a police officer, to stand outside a police station wearing a sign that read “I apologize to Officer Simone and all police officers for being an idiot calling 911 threatening to kill you. I'm sorry and it will never happen again.” To give the sentence a personal touch, the judge hand-lettered the sign herself. These sorts of “Oh, snap!” sentences are undeniably funny. But are they actually legal? Do public humiliations like these constitute cruel and unusual punishments?
Legislatures generally give judges a lot of latitude to freestyle from the bench, as long as they can make the case that their funny punishments serve some sort of rehabilitative purpose. Federal courts have supported creative sentencing, too. In 2004’s United States v. Gementera, the Ninth Circuit ruled that a district court judge was well within his rights to sentence mail thief Shawn Gementera to, among other things, stand outside a postal facility wearing a sign that read “I stole mail; this is my punishment.” In his opinion, Judge Diarmuid O’Scannlain (!) determined that “the district court imposed the condition for the stated and legitimate statutory purpose of rehabilitation and, to a lesser extent, for general deterrence and for the protection of the public.”
So these sentences, although unusual, are not seen to be unconstitutionally cruel. And they clearly stem from valid frustration with America’s imperfect criminal justice system, which sends convicted criminals into dangerously overcrowded prisons, fails to rehabilitate them, and then releases them back into society, where they are apt to offend again. It’s a frustrating cycle, and so you can understand why, rather than send an abusive father to prison, a judge might think it more effective to have him sleep in the same doghouse where he allegedly used to banish his son, or to sentence a burglar to have something valuable stolen from his house. Call it poetic justice. Call it common sense.
But as George Washington University law professor Jonathan Turley has written, poetic justice rarely has anything to do with legal justice. The entire point of a code of laws is to move away from “common sense” justice and its attendant inconsistencies, and to professionalize the process by establishing a standardized list of crimes and punishments that’s valid in all jurisdictions. The judiciary’s role is to interpret these laws and pass judgment on behalf of the state; judges are theoretically elected or appointed based on their supremely nuanced understanding of these laws, not based on their ability to hand-letter punitive signage. This doesn’t mean that the system always works. But it’s meant to ensure that, at the very least, the system proceeds with a measure of fairness and dignity.
Theatrical, cornpone deviations from this standard undermine the judicial system. A sentencing hearing becomes less about the state passing judgment on a convicted criminal than an individual judge imposing her standards of right and wrong. Our criminal justice system might not work very well. But it ought to be fixed in the legislatures, not on an ad hoc basis by grandstanding judges who act as though they won their robes in a raffle. Public shaming is better suited for courtroom reality shows, which, indeed, is where one of stunt sentencing’s most famous practitioners — Judge Joe Brown — ended up. If that’s where Judge Pinkey Carr is bound, then I wish her well, and I hope she gets there soon, because her brand of homespun, alternative justice has no business in a real courtroom.
In short, this commentary recognizes that both the Constitution and legislatures permit shaming sanctions if and when, to quote the Ninth Circuit, they seek to serve the "stated and legitimate statutory purpose of rehabilitation and ... for general deterrence and for the protection of the public." In addition, this commentary seems to acknowledge that in many cases, the traditional punishment of locking someone in a cage often will not effectively or efficiently serve these purposes. Nevertheless, apparently because a judge's purported role is to "to interpret [criminal] laws and pass judgment on behalf of the state" and because the criminal justice system is to proceed "with a measure of fairness and dignity," then creative shaming punishments somehow "undermine the judicial system."
Huh? For me this kind of argument and its fuzzy logic just does not compute. Perhaps this is fundamentally because I see very little "fairness and dignity" coming from locking humans in cages, but it is also because there is anecdotal evidence that creative shaming sanctions may be significantly more effective than imprisonment in serving the express statutory sentencing purposes set forth by Congress and state legislatures.
If and when data indicate creative sanctions are less effective than imprisonment at achieving public safety, I will be moved by the notion that such punishments are bad policy. If and when Congress or state legislatures expressly prohibit shaming sactions because the people's representatives conclude such punishments "undermine the judicial system," then I will support claims they are unlawful. Until such time, and especially because I also think our traditional punishments "might not work very well," I have a hard time being convinced by reactionary criticisms of seemingly reasonable efforts by seemingly well-meaning judges to try to make the criminal justice system they help administer work just a little better for all of society's benefit.
I sometimes think that what really explains these kinds of criticisms of creative shaming sanctions is the discomfort that the critic feels from having to see on full display and then think seriously about the many ugly realities of crime and punishment in our modern criminal justice systems. When tens of thousands of defendants are sent away to prison every year in the United States, and thus effectively hidden away from public view (absent hunger strikes or suicides or other dramatic and harmful actions), those who do not regularly encounter many crime victims and/or criminal defendants need not think too much to the ugly modern realities of crime and punishment in our modern criminal justice systems. But when a just few defendants are given creative shaming sanctions each year by seemingly well-meaning judges who are trying to improve the system, we all must confront the disconcerting reality that these kinds of punishment may actually be a significant improvement over the "traditional" status quo.
I understand why the notion that creative shaming sanctions are a possible improvement over traditional punishment is a reality that could be deeply disconcerting to those who want to champion (and cling to) high-minded conceptions of the importance of "fairness and dignity" in our criminal justice system. But attacking judges who are looking for novel sentencing alternatives which could be more effective and efficient than locking humans in cages is, in my view, an example of shooting the messenger because you do not like the real-world news being delivered through these kinds of punishments.
"McSentencing: Mass Federal Sentencing and the Law of Unintended Consequences"The title of this post is the title of this provocative new paper by Melissa Hamilton now available via SSRN. And this abstract suggests the content of the article is as delicious as the title:
The law of unintended consequences conjectures that any legislative act will yield unanticipated, and likely undesirable, outcomes. Federal sentencing law is no exception. Federal sentencing reforms enacted in the 1980s were designed to achieve uniformity and proportionality in meting out punishments. Congress expected that the creation of a presumptive guidelines system and the frequent imposition of mandatory minimum sentencing laws would effectively operate to provide federal judges with a consistent and uniform set of rules to follow, while substantially curbing judicial discretion. The emergent sentencing system relies substantially on a mechanized system of assembly-line justice in which judges are demoted to merely terminal actors in issuing sentences. This Article posits that the system is a form of McDonaldization of society, a popular concept that recognizes the model of fast food consumerism is an ideal type of the bureaucratization of a modern rational system in America today. The federal sentencing system is intended by the reform legislation to comprise a sort of McSentencing in that the outputs — sentences — are produced through an automated process involving discrete quantifications of harm. The result is mass sentencing based on an extensive and refined rules and procedures manual, i.e., the guidelines, and relevant mandatory minimums.
As with the fast food chain, McSentencing offers such benefits as predictability, calculability, efficiency, and control. Theoretically, McSentencing should beget consistent, uniform, and normative punishments. Yet, as with any rational system, unintended consequences necessarily follow purposive legislative action. This Article explains how the federal sentencing system earns the McSentencing label and then addresses significant unanticipated consequences which have ensued. The actors in the proposed assembly-line of sentencing — the sentencing commission, prosecutors, probation officers, judges — have reacted to the reforms and to each other in ways that have biased the ability for the sentencing reforms to achieve the intended objectives. The federal sentencing system is in crisis as a result. This Article offers a unique perspective by utilizing the theoretical constructs of McDonaldization and the law of unintended consequences as orienting devices for a case study on federal sentencing law. Statistical measures derived from various government datasets supplement the analysis with empirical perspectives.
Wednesday, September 04, 2013
How could and should folks view (or "spin") latest results from national survey on drug use and health?
Released today were the findings from the 2012 National Survey on Drug Use and Health by the U.S. Department of Health and Human Services. Helpfully, thanks to our modern digital world, everyone can look at the full reported results from HHS here and a collections of "highlights" at this link. Or one can look at these headlines from some early major media reports:
- From ABC News here, "Drug Use Drops for America's Youth, Rises in the Over 50 Crowd"
- From CBS News here, "New US drug survey: Marijuana and heroin increasing"
- From The Hill here, "Federal survey shows heroin use up significantly"
- From USA Today here, "More Americans are using marijuana"
As these headlines highlight, there are lots of ways to view the latest survey data. (Moreover, because the stigma associated with marijuana use has declined with evolving laws and policy perspectives, I cannot help but wonder if the measured increase in reported use of marijuana might, at least to some degree, reflect an increase in the willingness of persons to admit to marijuana use rather than an actual increase in use.)
Usefully, because the 2012 National Survey on Drug Use and Health also explores alcohol and tobacco use, as well as reported rates of "substantance dependence/abuse," there are a number of notable (though less reported) seemingly positive stories emerging from this latest government report concerning drug use and abuse over the last decade. Specifically (and quoting now directly from the HHS highlights):
- Between 2002 and 2012, past month use of any tobacco product among persons aged 12 or older decreased from 30.4 to 26.7 percent... [and] the rate of past month tobacco use among 12 to 17 year olds declined from 15.2 percent in 2002 to 8.6 percent in 2012.
- Between 2002 and 2012, the percentage of youths aged 12 to 17 with substance dependence or abuse declined from 8.9 to 6.1 percent.
- The number of past year cocaine initiates declined from 1.0 million in 2002 to 639,000 in 2012. The number of crack cocaine initiates declined from 337,000 to 84,000 during this period.
- The rate of current marijuana use among youths aged 12 to 17 decreased from 8.2 percent in 2002 to 6.7 percent in 2006, remained unchanged at 6.7 percent in 2007 and 2008, then increased to 7.9 percent in 2011. The rate declined to 7.2 percent in 2012.
- Past month, binge, and heavy drinking rates among underage persons declined between 2002 and 2012. Past month alcohol use declined from 28.8 to 24.3 percent, binge drinking declined from 19.3 to 15.3 percent, and heavy drinking declined from 6.2 to 4.3 percent.
I am inclined to ultimately view the data emerging from 2012 National Survey on Drug Use and Health as evidence that, all things considered, Americans are somewhat healthier now than we were a year ago and a lot healthier now than we were a decade ago. But most of the headlines I see from the media seem to be emphasizing reported increases in the use of certain substantances rather than reported decreases in the use of other substances.
Florida prosecutors considering pursuing death penalty for doctor deemed responsible for overdose deathsI am always looking for notable and interesting modern cases to use with my 1L Criminal Law class when covering the topic of causation. Thanks to this local story, headlined "Former West Palm Beach doctor could face death penalty in patients' deaths," it looks like Florida prosecutors not only have presented me with a good classroom candidate, but also are talking up a possible punishment that could ensure the case garners national attention. Here are the details:
State prosecutors have filed court documents announcing their intent to seek the death penalty against a former West Palm Beach doctor facing two counts of first-degree murder for the overdose deaths of his patients.
Authorities with the state attorney's office said Tuesday they have not made a final decision about whether to pursue the ultimate punishment for former West Palm doctor John Christensen, 61, but want to keep that option open. The case will go before the office's death penalty committee, which is expected to review it and decide whether to pursue the penalty within the next month, Chief Assistant State Attorney Brian Fernandes said. "This is a case that's potentially eligible for the death penalty," he said. "We want to make sure that we preserve our rights."
If the state does pursue a death sentence against the doctor, it would be highly unusual. Just a handful of Florida physicians have faced homicide charges for the overdose deaths of their patients, and the majority have been manslaughter cases.
West Palm Beach defense attorney Grey Tesh, who until last month represented Christensen, said he was surprised when the state sent its notice of intent to seek the death penalty. The doctor's new attorney, Richard Lubin, did not return a call seeking comment Tuesday. "At least in Palm Beach County, I don't know of any doctor who has faced the death penalty on a case like this," Tesh said.
In 2002, West Palm Beach doctor Denis Deonarine became the first in the state to be indicted for first-degree murder in the death of a patient who was prescribed painkiller OxyContin. He was ultimately acquitted of first-degree murder charges, and released from prison in December, according to the state Department of Corrections. After the trial ended, one juror told the Sun Sentinel the jury ultimately believed the patient was responsible for his own death.
Christensen, who operated medical offices in West Palm Beach, Port St. Lucie and Daytona Beach, was arrested in July, after a two and-a-half year investigation that focused on the deaths of 35 of his patients. He's facing multiple charges, including the two counts of first-degree murder for prescribing oxycodone, methadone and anti-anxiety drugs to two patients who later overdosed....
Tesh said he expects it will be an uphill battle for the state to get a conviction against Christensen, making the death penalty irrelevant. He said it will be difficult to connect the deaths to him, noting that one of the patients had other substances in her system when she died. "I would be surprised if he's convicted," Tesh said. "The evidence is just not going to be there, not to be proved beyond reasonable doubt."
Even without knowing much about the particulars of Florida homicide law, I share the perspective that state prosecutors are likely to face an uphill battle getting a first-degree murder conviction, let alone a death verdict, from a jury in this kind of case. But I also can identify lots of potential (utilitarian) benefits flowing from just a prosecutorial decision to talk up possible capital charges in this case.
As this very post reveals, simply mentioning the possibility of a death sentence ensures this case gets a lot more attention, and that attention should (and likely will) lead many more doctors in Florida and elsewhere to be at least a bit more careful when writing scripts for potent and potentially lethal prescription drugs. In addition, as in many other cases involving lots of human carnage, the prospect of capital charges might encourage a guilty defendant to plead guilty to lesser (and more fitting) charges. (Of course, some may view the potentially coercive impact of capital charges in a case like this to be an injustice, but I suspect prosecutors might well concluse that such charges are a fitting prescription for this kind of case.)
September 4, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (11) | TrackBack
Tuesday, September 03, 2013
"Evidence-Based Sentencing and the Scientific Rationalization of Discrimination"The title of this post is the title of this provocative new paper by Sonja Starr now available via SSRN. Here is the abstract:
This paper critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables. I argue that this practice violates the Equal Protection Clause and is bad policy: an explicit embrace of otherwise-condemned discrimination, sanitized by scientific language.
To demonstrate that this practice should be subject to heightened constitutional scrutiny, I comprehensively review the relevant case law, much of which has been ignored by existing literature. To demonstrate that it cannot survive that scrutiny and is undesirable policy, I review the empirical evidence underlying the instruments. I show that they provide wildly imprecise individual risk predictions, that there is no compelling evidence that they outperform judges’ informal predictions, that less discriminatory alternatives would likely perform as well, and that the instruments do not even address the right question: the effect of a given sentencing decision on recidivism risk. Finally, I also present new, suggestive empirical evidence, based on a randomized experiment using fictional cases, that these instruments should not be expected merely to substitute actuarial predictions for less scientific risk assessments, but instead to increase the weight given to recidivism risk versus other sentencing considerations.