Monday, December 16, 2013
You be the disparity judge: very different prison sentences for (similar?) fruadsters in different courts
One reason I never fully understand nor fully appreciate very aggressive efforts to try reduce sentencing disparities is because I never fully understand nor fully appreciate whether and when very different sentences for somewhat similar crimes represents warranted or unwarranted disparities. And these two notable headlines reporting on two notable white-collar sentences imposed today in two different courtrooms have me thinking about these matters yet again:
Here, respectively, are the basics of the crimes and punishments in these two cases taken from the above-link press accounts, the first of which is a report from a state court in Ohio:
Bobby Thompson, convicted mastermind of a national veterans charity scam that bilked donors out of an estimated $100 million, was sentenced to 28 years in prison this morning by Cuyahoga County Common Pleas Judge Steven Gall. Thompson is a stolen identity used by John Donald Cody, 67, to set up the U.S. Navy Veterans Association, based in Tampa, which solicited donations in Ohio and 40 other states from 2002-2010.
Gall, who addressed Thompson as Mr. Cody, additionally levied a $6.3 million fine against Thompson, plus a $330,778 judgement to cover the cost of prosecution by the Ohio Attorney General. The judge said factors he considered in determining the sentence included the eight-year duration of Thompson's charity "charade," the amount of money swindled from donors, the efforts Thompson made to hide his identity, and Thompson's lack of remorse or acceptance of responsibility for his actions.
Citing the damage done to veterans who could have been aided by the money that Thompson's charity raised, Gall also ordered that Thompson spend each Veterans Day in solitary confinement for the duration of his prison term....
Prior to the sentencing Joseph Patituce, Thompson's attorney, had suggested a possible sentence of 14 years. After his client got twice that number, Patituce said Thompson still denies that he committed a crime and will appeal.... Patituce said Thompson's refusal to testify in the trial on his own behalf was pivotal. "If he would have testified the verdict would have been different," Patituce said.
Brad Tammaro, an assistant attorney general prosecuting the case, argued against Patituce's suggested 14-year sentence for Thompson, calling that sentence "totally inappropriate." Tammaro also said that "the evidence in the case demonstrates a complete lack of remorse" on the part of Thompson.
And now, from a federal court in Rhode Island:
A federal judge sentenced a Rhode Island lawyer to six years in prison Monday for his role in a $46 million investment fraud that preyed on terminally ill people, calling him the architect of the scheme and saying he didn't seem to recognize the harm he had caused.
Joseph Caramadre was sentenced in Providence after pleading guilty to wire fraud and conspiracy. His lawyers asked for two years in prison and two years in home confinement. Prosecutors sought 10 years. Judge William E. Smith also ordered Caramadre to perform 3,000 hours of community service to help the elderly and terminally ill. He put off the question of restitution because Caramadre's lawyer has objected to the amount.
Caramadre was a prominent lawyer and philanthropist. Prosecutors say he and former employee Raymour Radhakrishnan paid terminally ill people cash, passing it off as charity, then used their personal information to purchase bonds and annuities that would pay out when the person died.
Caramadre pleaded guilty last year but a few months later tried to withdraw his guilty plea. He testified during a hearing on that request that he had committed perjury when he pleaded guilty, prompting the judge to say at the time: "It's amazing to watch a defendant perjure himself by saying he committed perjury the first time." Smith turned down his request to withdraw his plea in May and ordered him immediately into custody.
On Monday, Caramadre stuck with his contention that the plea was a lie, telling the judge he could not say he was sorry for anything although he felt terrible if some terminally ill people felt the investment strategy was not explained to them. "I wish I could play the game," he said, referring to his lack of contrition.
Still, he said, he took responsibility for his guilty plea. Smith said Caramadre seemed to recognize that people were hurt but didn't seem to recognize that he was the one that hurt them.
To the extent I can understand these stories, it seems that many millions of dollars were lost in the fraud on veterans over many years, whereas apparently a lot less money was lost in the fraud on the terminally ill during a shorter period. Also, of course, one defendant was convicted after a lengthy (state) trial and the other was convicted after a (now regretted) federal plea.
Still, is there really any sound way for anyone to assess whether the huge disparity in these two fraud sentences imposed today, one of which is nearly five times as long as the others, are warranted or unwarranted? More broadly, does anyone think it problematic that one defendant was prosecuted in Ohio state court and thus subject to Ohio's sentencing laws that are much different than the other defendant was subject to as a result of his federal prosecution?
Saturday, December 14, 2013
"Freeing Morgan Freeman: Expanding Back-End Release Authority in American Prisons"
The title of this post is the title of this notable and important new piece by Frank Bowman now available via SSRN. Here is the abstract:
This article, written for a symposium hosted by the Wake Forest Journal of Law & Policy on “Finality in Sentencing,” makes four arguments, three general and one specific.
First, the United States incarcerates too many people for too long, and mechanisms for making prison sentences less “final” will allow the U.S. to make those sentences shorter, thus reducing the prison population surplus.
Second, even if one is agnostic about the overall size of the American prison population, it is difficult to deny that least some appreciable fraction of current inmates are serving more time than can reasonably be justified on either moral or utilitarian grounds, and therefore American criminal justice systems ought to adopt mechanisms for identifying both individuals and categories of prisoners whose terms should be shortened.
Third, it is impossible, or at least unwise, to try to make “final” decisions — at least good final decisions — about how long someone should spend in prison at the beginning of the prison term, at least if that term is supposed to be very long. Thus, in cases where a long sentence is imposed, one ought not make the initial, front-end, judicial sentencing decision “final,” but should instead create mechanisms for one or more later second looks.
After exploring these contentions, I conclude that discretionary early-release mechanisms should be restored where they have been abandoned, and reinvigorated where they have languished. In particular, I propose instituting a discretionary back-end release mechanism for some categories of both federal and state long-sentence prisoners and I explore the political and institutional difficulties of doing so.
December 14, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (12) | TrackBack
Friday, December 13, 2013
How can and should Ohio's justice system deal with merciful elderly aggravated murderer?
I suspect many folks engaged in debates over the wisdom of mandatory minimum sentencing provisions at least feel comfortable with the suggestion that persons convicted of first-degree murder ought to always be mandated to serve at least decades in prison. Indeed, many folks who advocate for the abolition of the death penalty do so by suggesting mandatory LWOP is the right alternative sentence for those deemed the worst kinds of killers under state homicide laws. Though lots of folks (myself included) are troubled by mandatory long prison terms for lower-level drug or gun offenses, lots of folks (myself included) are much less troubled by some mandatory prison requirements in the sentencing rules for how the justice system responds to the very worst intentional violent crimes.
But the provocative question in the title of this post is prompted by a sentencing story developing today in Ohio, which is explained in this AP report headlined "John Wise, attorney to seek clemency from governor in wife's hospital killing." Here are the details:
A man convicted of fatally shooting his ailing wife in her hospital bed will seek clemency from the governor after his sentencing Friday, even if the judge follows a prosecutor's recommendation for a lighter punishment because of the unique circumstances of the case.
John Wise, 68, has said he shot his debilitated wife out of love in August 2012 after she suffered an aneurysm and appeared to be in pain at an Akron hospital. Mercy is not a defense to a murder charge in Ohio. Wise, of Massillon, was convicted on charges including aggravated murder with a firearm specification, which could carry a life sentence.
Summit County Prosecutor Sherri Bevan Walsh called Wise's actions illegal and dangerous but said the case warrants sentencing leniency. She has recommended that Wise be sentenced on a lesser crime and get a six-year term. "In light of the unique facts of this case, a shorter prison sentence is just," she said in a statement.
Whatever the sentence, the defense will pursue clemency from the governor and "will be seeking public support from those who sympathize with John and this situation," defense attorney Paul Adamson said in an email.
Judge Mary Margaret Rowlands in Akron has told attorneys the sentence must fit within legal limits. Neither side found previous case law to support the prosecutor's suggestion that the judge could sentence Wise to six years behind bars for manslaughter, a charge that wasn't among the counts against him but is considered a lesser included offense, Adamson said.
With charges merged for sentencing, it's also possible Wise could get a six-year term if the prosecution asks the judge to sentence him for felonious assault, one of three charges on which he was convicted. April Wiesner, a spokeswoman for the prosecutor, wouldn't say Thursday whether the office intends to pursue that option.
As my first-year Crim Law students know well, "Aggravated Murder" is Ohio's term for first-degree murder and Ohio sentencing law expressly provides that "Whoever is convicted of or pleads guilty to aggravated murder in violation of section 2903.01 of the Revised Code shall suffer death or be imprisoned for life...." Consequently, I am not aware of a sound legal basis for the prosecutor or judge in this case to recommend or impose any sentence other than an LWOP term for the aggravated murder charge. I surmise that the local prosecutor here may be asking for the judge not to sentence on that charge or to have it reduced or dismissed in some way before sentencing.
Ironically, I think the defendant and his lawyer here might want the sentencing judge to feel compelled to impose LWOP and thereby heighten the argument for some kind of clemency relief from Gov. Kasich. If the defendant here gets "only" six years in prison, I suspect it would be much easier for the Governor to leave such a sentence in place and conclude that justice for this murderer has already been tempered by mercy. Indeed, I am inclined to think that the prosecutor here has decided only to seek a six-year prison term for an aggravated murderer because she hope to bring a function end to this case at sentencing today rather than have to deal with a compelling clemency case if John Wise were to get an LWOP sentence.
UPDATE: This new AP report indicates that this aggravated murderer somehow received a sentence of only six years' imprisonment, as prosecutors had recommended:
An Ohio man convicted of fatally shooting his ailing wife in her hospital bed was sentenced Friday to six years in prison and plans to seek clemency from the governor....
The sentence issued by Summit County Court of Common Pleas Judge Mary Margaret Rowlands was in line with prosecutors' recommendation that the Massillon man receive a lighter punishment than the minimum 23 years on his most serious conviction, an aggravated murder count.
Holding a cane and wearing a striped jail outfit, Wise remained seated during the hearing. He made a brief statement, choking up as he apologized to his family and his son. He also thanked the prosecutors and the court.
Prosecutors said the case warranted leniency, but they emphasized that Wise's actions were illegal. "It is not our intention to minimize what happened. You cannot bring a loaded gun into a hospital and shoot someone," Summit County Prosecutor Sherri Bevan Walsh said in a statement after the sentencing.
In court, Assistant Prosecutor Brian LoPrinzi told the judge: "We believe that although his motive may have been pure, he was wrong."
Wise's attorney, Paul Adamson, said they will pursue clemency from the governor and create an online petition for supporters to sign. He called the shooting "an aberrational act" for Wise. "I've never represented a finer man," Adamson told the judge. The prosecutor's office said it would oppose any reduction in Wise's punishment.
Among those at the sentencing was Liz Flaker, one of the jurors who convicted Wise after he pursued an insanity defense. She said the jurors, who deliberated for several hours, took two votes. The first was 9-3 in favor of conviction; the second was unanimous. "There was really no split, per se, but I think there were a couple of people that kind of wavered on ... thinking was he insane or was he not insane," Flaker said. "I think the way the law was written for the state of Ohio is a little bit hazy."
Prosecutors had recommended that Wise be sentenced to six years for manslaughter, a charge that wasn't among the counts against him but is considered a lesser included offense. After neither side found previous case law to support that unusual suggestion, the prosecution instead asked the judge to sentence Wise under his felonious assault conviction with a firearms specification, and the judge did so. Wise also was convicted of aggravated murder with a firearm specification and murder, which could have led to a life sentence.
Police say Wise calmly walked into the hospital room on Aug. 4, 2012, and shot his wife of 45 years at her bedside. She died the next day. Wise told police he intended to kill himself, too, but the weapon jammed.
December 13, 2013 in Clemency and Pardons, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack
Thursday, December 12, 2013
Texas tough means probation for teen who killed four and injured more while drunk driving?
The question in the title of this post is my reaction to this CNN report headlined "Texas teen Ethan Couch gets 10 years' probation for driving drunk, killing 4." Regular readers know that drunk driving is one notable crime that I fear is consistently under-punished throughout the United States, and the details of this story confirms my fear that elitism and a variety of other potentially pernicious factors may explain why. Here are the details:
To the families of the victims, Ethan Couch was a killer on the road, a drunken teenage driver who caused a crash that left four people dead.
To the defense, the youth is himself a victim -- of "affluenza," according to one psychologist -- the product of wealthy, privileged parents who never set limits for the boy.
To a judge, who sentenced Couch to 10 years' probation but no jail time, he's a defendant in need of treatment.
The decision disappointed prosecutors and stunned victims' family members, who say they feel that Couch got off too easy. Prosecutors had asked for the maximum of 20 years behind bars. "Let's face it. ... There needs to be some justice here," Eric Boyles, who lost his wife and daughter, told CNN's "Anderson Cooper 360" on Wednesday night.
"For 25 weeks, I've been going through a healing process. And so when the verdict came out, I mean, my immediate reaction is -- I'm back to week 1. We have accomplished nothing here. My healing process is out the window," he said.
Lawyers for Couch, 16, had argued that the teen's parents should share part of the blame for the crash because they never set limits for the boy and gave him everything he wanted. According to CNN affiliate WFAA, a psychologist called by the defense described Couch as a product of "affluenza." He reportedly testified that the teen's family felt wealth bought privilege, and that Couch's life could be turned around with one to two years of treatment and no contact with his parents.
Couch was sentenced by a juvenile court judge Tuesday. If he violates the terms of his probation, he could face up to 10 years of incarceration, according to a statement from the Tarrant County Criminal District Attorney's Office. Judge Jean Boyd told the court she would not release Couch to his parents, but would work to find the teen a long-term treatment facility.
"There are absolutely no consequences for what occurred that day," said Boyles. "The primary message has to absolutely be that money and privilege can't buy justice in this country." His wife, Hollie Boyles, and daughter, Shelby, left their home to help Breanna Mitchell, whose SUV had broken down. Brian Jennings, a youth pastor, was driving past and also stopped to help.
All four were killed when the teen's pickup plowed into the pedestrians. Couch's vehicle also struck a parked car, which then slid into another vehicle driving in the opposite direction. Two people riding in the bed of the teen's pickup were tossed in the crash and severely injured. One is no longer able to move or talk because of a brain injury, while the other suffered internal injuries and broken bones.
"There is nothing the judge could have done to lessen the suffering for any of those families," said defense attorney Scott Brown, CNN affiliate KTVT reported. "(The judge) fashioned a sentence that is going to keep Ethan under the thumb of the justice system for the next 10 years," he said. "And if Ethan doesn't do what he's supposed to do, if he has one misstep at all, then this judge, or an adult judge when he's transferred, can then incarcerate him."
Earlier on the night of the accident, June 15, Couch and some friends had stolen beer from a local Walmart. Three hours after the crash, tests showed he had a blood alcohol content of 0.24, three times the legal limit, according to the district attorney's office. "We are disappointed by the punishment assessed but have no power under the law to change or overturn it," said Assistant District Attorney Richard Alpert. "Our thoughts and prayers are with the families and we regret that this outcome has added to the pain and suffering they have endured."
It is very rare, but not impossible, for prosecutors to challenge the sentence on the ground that it was too lenient, CNN legal analyst Sunny Hostin said. "To give him a pass this time given the egregious nature of his conduct -- four deaths -- is just incomprehensible," she said. It is unfair that other young defendants without the same wealth could end up in jail for a lot less, said Hostin, of CNN's "New Day" morning show.
December 12, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (25) | TrackBack
"Remorse and Demeanor in the Courtroom: Cognitive Science and the Evaluation of Contrition"
The title of this post is the title of this notable new paper by Susan Bandes now available via SSRN. Here is the abstract:
Although there is a rich legal literature on whether remorse should play a role in the criminal justice system, there is far less discussion of how remorse can be evaluated in the legal context — if indeed it can. There is ample evidence that perceptions of remorse play a powerful role in criminal cases. Whether a defendant is regarded as appropriately remorseful is often a determinative factor in criminal sentencing, including capital sentencing. And in capital cases, in which the defendant rarely testifies, the evaluation of remorse may be based entirely on the facial expression and body language of a defendant sitting silently in the courtroom. Yet the most basic questions about the evaluation of remorse have received little attention: what is it precisely that is being evaluated, and how adept are decision makers at evaluating it? What criteria are being applied and with what level of consistency and fairness?
There is evidence that the evaluation of remorse is particularly difficult across cultural, ethnic or racial lines, or where juvenile or mentally impaired defendants are being judged. But this troubling evidence leads to several larger questions. Is remorse (or the lack of remorse) something that can ever be accurately evaluated in a courtroom? If remorse is not susceptible to courtroom evaluation, is it feasible to bar decision-makers from considering it? And if evaluation of remorse is a permanent feature of the criminal justice system, what can be done to improve upon an evaluative process that is demonstrably riddled with error and bias?
The article considers these questions in light of findings in three flourishing areas of cognitive science: the field of interpretation of facial expressions and “micro” expressions (expressions difficult for the untrained eye to recognize), the study of the dynamics of empathy and empathic accuracy, and the study of implicit bias.
Tuesday, December 10, 2013
"Harsh Sentences Are Killing the Jury Trial"
The title of this post is the headline of this forceful commentary at The Atlantic authored by Andrew Guthrie Ferguson. Here are lengthy excerpts from a piece that merits a full read:
[T]he Human Rights Watch Report, “An Offer You Can’t Refuse,” confirms that harsh sentencing laws have undermined the American jury system. On average, 97 percent of defendants plead guilty in federal court. For crimes that carry a minimum mandatory sentence, going to trial has simply become too risky. As Human Rights Watch reports: “Defendants convicted of drug offenses with mandatory minimum sentences who went to trial received sentences on average 11 years longer than those who pled guilty.”
This risk goes well beyond the traditional trade-offs. Plea offers have been around since the 1800s and are a well-established and necessary part of criminal practice. But the new mandatory minimums and sentencing enhancements have given federal prosecutors new power to coerce pleas and avoid trials. A prosecutor can now give a minor drug dealer this choice: “Plead guilty to a reduced charge, or go to trial and risk sentencing that will put you in jail for decades.” It’s not hard to understand why so many defendants — whether innocent, guilty, or not quite as guilty as charged — are taking the first option....But, there is a secondary cost that is less often discussed but equally damaging to the criminal justice system. Harsh sentencing laws are killing the jury trial. And without trials, citizens have no say in the criminal justice system.
It is no accident that the jury trial is the only constitutional right to make a repeated appearance in the original Constitution and the Bill of Rights. The founding fathers considered criminal juries to be the best mechanism for checking the power of judges and lawyers. By interposing citizens between a prosecutor and a conviction, the constitutional system protected individual liberty. This is not to say that colonial juries did not convict people quite regularly, and quite harshly. But when they did, citizens, not prosecutors, were the ones condemning the law breakers. It was this local, public participation that gave legitimacy to the larger system.
The modern domination of plea bargains has excised the role of the citizen-juror. Without trials, citizens do not learn about what is happening in the criminal justice system, and they have no way of taking part in it. Instead of seeing the consequences firsthand, ordinary Americans must rely on research reports and news stories. This practice disconnects the people from their own democratically enacted laws, precluding them from evaluating these elective choices.
Unlike trials, plea bargains take place in secret, away from public scrutiny. They involve negotiations between repeat players in the system — the lawyers. And for many types of crimes, the bargains are influenced by federal policies, not local ones. Thus, the jury system — with its emphasis on local authority and public participation — has been replaced with a system as insular as it is broken....The push for jury trials in the Bill of Rights came from citizens — not judges, politicians, or prosecutors. In fact, the perceived lack of citizen involvement in the legal system almost derailed the original Constitution, as Anti-Federalists saw it as a threat to their liberty. Concerned citizens wrote, organized, and protested on behalf of their own role in the justice system. They won, and that victory can still be read in the Sixth Amendment, which promises in rather emphatic terms that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.”
Today, Americans of all political persuasions should embrace a greater role for juries, at least when it comes to federal prosecutions. After all, Tea Party conservatives believe in local, accountable government, while progressive liberals believe in an equitable system of justice. More jury trials will mean more ordinary people engaged in the legal system — more citizens involved in their government. The result will not only be consistent with the original design of the Constitution but, like the jury system, itself, will encourage more local, democratic, participatory engagement with our government and its policies.
A few recent and older related posts on modern prosecutors and plea practices:
- Remarkable new HRW report details massive "trial penalty" due to mandatory minimums in federal system
- "The Prisoners’ (Plea Bargain) Dilemma"
- US District Judge Bennett documents prosecutor-created disparity from § 851 enhancements in yet another potent opinion
- A prosecutor's potent perspective on Lafler, Frye and the future of plea bargaining
- "The Plea Jury"
- Don't federal mandatory minimums preserve a lawless (and perhaps discriminatory) "luck-of-the-draw system" of sentencing?
- Scott Burns from National District Attorneys Association makes the prosecutors case for mandatory minimums
- "Who's Guarding the Henhouse? How the American Prosecutor Came to Devour Those He is Sworn to Protect"
- "The Unchecked Charging Power of the Prosecutor"
Sunday, December 08, 2013
Victims provide some recent historical perspectives on two worst crimes in recent American history
As regular readers may know, I am a huge believer in having criminal justice systems give special attention to victims' interests, rights and perspectives (in part because I believe actual victims, generally speaking, are often interested in a much more dynamic and sophisticated government response to wrong-doing than just the lock-em-up-and-throw-away-the-key attitudes too often claimed to be in their interest by politicians and prosecutors). For that reason, I am always pleased when victim-oriented matters become big legal cases (as with the SCOTUS Paroline case concerning restitution for child porn victims), and also when the media gives special and extended attention to crime victims.
For these (and other) reasons, I am pleased and intrigued to see today's New York Times has these two extended articles discussing victims' perspectives on two of the worst crimes in recent American history:
I have long felt very fortunate that I personally have only been the victim of relatively minor property crimes (though I do have a number of family members and friends who have had their lives shattered by serious violent crimes). I also feel very fortunate to live in a society that, at least in some high-profile settings for some victims, seeks to be attentive to the unique needs and enduring challenges that all too many crime victims face.
Thursday, December 05, 2013
Yet another effective review of the child porn restitution challenges facing SCOTUS
I have already blogged some previews of the fascinating Supreme Court case of Paroline v. United States even though oral argument is still six weeks away because the issues strike me as so interesting and dynamic. (The parties' main briefs and now lots of amicus briefs are now available via SCOTUSblog on this Paroline case page.) And I suspect we are seeing other notable coverage of the case already because lots of others are also intrigued by the issues and arguments now before the Justices in Paroline. The latest example comes via Emily Bazelon here at Slate, and it is headlined "Paying Amy: Doyle Paroline owned two pornographic pictures of an 8-year-old girl. How much should he have to pay?" Here are a few excerpts (with cites to some of the filed briefs):
In January, the Supreme Court will hear the appeal of Doyle Randall Paroline, who was caught with two pictures of Amy among 280 illegal images and was found liable by the U.S. Court of Appeals for the 5th Circuit for the full amount of the restitution Amy, who is now 24, has claimed. The 5th Circuit said it was up to Paroline — not Amy — to find the other men who could also be on the hook for restitution and go after them for contributions. The legal theory is called joint and several liability. It’s the way courts deal with pollution cases in which a bunch of defendants all dump toxic waste into a single lake. A plaintiff sues one wealthy company for all the damages, and then that defendant has to sue other companies to share the costs.
Is this how Congress intended victims to recover from sex offenders when it passed [the Violence Against Women Act] in 1994?...
Of the eight appeals courts that have heard challenges by men like Paroline, only the 5th Circuit agreed entirely with Amy’s theory of recovery. The Department of Justice also disagrees with a key to it, saying that joint and several liability doesn’t apply in these cases. But a bipartisan group of U.S. Senators have filed a brief before the Supreme Court arguing that Congress wanted to give Amy an easy path to restitution. VAWA could “hardly be clearer,” say the senators (roll call: Orrin Hatch of Utah, Dianne Feinstein of California, Charles Grassley of Iowa, Edward Markey of Massachusetts, John McCain of Arizona, Patty Murray of Washington, and Charles Schumer of New York)....
Five appeals courts have said they doubted that victims like Amy can win more than nominal restitution. Two others let her keep awards of only $10,000 or less. She has been able to collect larger amounts only from men who have agreed to settle or waived their right to appeal. The senators, though, say that all these courts got it wrong and the 5th Circuit got it right. They quote Vice President Joe Biden, chief architect of the VAWA, who called it “the most victim-friendly bill [the Senate] ever passed.” And they provide an important piece of history about how VAWA was drafted....
Here’s the clearest way to think about how and why Amy and other victims like her should win restitution. Their trauma can’t be neatly parceled out among the individual men convicted for possessing their pictures. But the harm is crystal clear in the aggregate. And so Paroline and other defendants shouldn’t be relieved of their obligation to pay “simply because Amy would continue to suffer harm if there were one less child-pornography consumer in the world,” as the Department of Justice puts it. This makes sense to me: You can’t let each viewer off the hook because he is merely one small part of the whole.
How much does each viewer who is convicted have to pay? The Department of Justice argues — vaguely and without any basis I can see in VAWA — that each defendant should pay restitution in an amount greater than zero but less than the whole. Courts should use their discretion to pick some place in the middle, the government says. It rejects the idea of joint and several liability as “practically unworkable” and “unduly harsh.”
If Paroline had to pay millions of dollars for his two pictures of Amy, then yes, that would be unfair. But that’s not how joint and several liability works. It works like this: Other victims following in Amy’s footsteps would target the rich child-pornography defendants. Then it would be up to those men to find the others who are also legally responsible. This would allow many more victims to recover than the alternative: The victims have to sue the defendants they can find one by one, while courts award restitution in what would probably be relatively small amounts. If the Justice Department is really worried about fairness, it could create a compensation fund defendants could pay into for the benefit of more victims.
Money can make a huge difference for victims of sexual abuse. For Amy and Nicole, it has meant access to counseling and a safety net when they have struggled with school and work, as they both have at times. Restitution makes far more sense than the enormously long prison sentences men often serve for collecting child pornography. Congress was right to see the value of restitution. The Supreme Court should too. And then lawmakers and judges should also recognize that the prison terms for possession of child pornography have become too harsh.
A few prior posts on Paroline:
- SCOTUS grants cert on challenging child porn restitution issues that have deeply split lower courts
- Gearing up for Paroline with a short "Child Pornography Restitution Update"
- Another preview of Paroline via the New York Times
December 5, 2013 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack
Wednesday, December 04, 2013
"The wrong people decide who goes to prison"
The title of this post is the headline of this notable new CNN commentary authored by US DIstrict Judge Mark Bennett and Prof. Mark Osler. Here are some of the on-the-mark views coming today from these Marks:
Nearly 30 years ago, Congress embarked on a remarkable and ultimately tragic transformation of criminal law. Through the establishment of mandatory sentences and sentencing guidelines, discretion in sentencing was shifted from judges to prosecutors. After the changes, prosecutors largely controlled sentencing because things like mandatory sentences and guideline ranges were determined by decisions they made.
This change ignored the fact that federal judges are chosen from the ranks of experienced members of the bar precisely because their long legal careers have shown the ability to exercise discretion. It also ignored the contrasting truth that many federal prosecutors are young lawyers in their 20s and 30s who have little experience making decisions as weighty as determining who will be imprisoned and for how long.
The primary reason for the changes was well-intended, though: Members of Congress wanted more uniformity in sentencing. That is, they wanted a term of imprisonment to derive from the crime and the history of the criminal rather than the personality of the person wielding discretion.
After nearly 30 years, we know how Congress' experiment turned out, and the results are not good. Federal judges have been relatively lenient on low-level drug offenders when they have the discretion to go that way. Turning discretion over to prosecutors via mandatory sentences and guidelines not only resulted in a remarkable surge in incarceration, it does not seem to solve the problem of disparities....
Let's look at just one way that prosecutors exercise this discretion: the enhancement of narcotics sentences under 21 U.S.C. 851, or proceedings to establish prior convictions. These enhancements, at a minimum, double a drug defendant's mandatory minimum sentence and may raise the maximum possible sentence.... [O]ur analysis of the way these enhancements have been used reveals a deeply disturbing dirty little secret of federal sentencing: the stunningly arbitrary application of these enhancements by prosecutors within the Department of Justice.
The numbers tell the story. Our home states are fairly typical in their wild disparities: A federal defendant in Iowa is more than 1,056% likely to receive a 851 enhancement than one in Minnesota. Nor are these Midwestern neighbors an anomaly. In the Northern District of Florida, prosecutors apply the enhancement 87% of the time, but in the bordering Middle District of Georgia, they are used in just 2% of relevant cases.
There is also breathtaking disparity within federal district within the same state (PDF). For example, in Florida, prosecutors in the Northern District apply the enhancement 87% of the time, but in the Southern District, it is used only 14% of the time. In the Eastern District of Tennessee, offenders are 3,994% more likely to receive an enhancement than in the Western District of Tennessee. In the Eastern District of Pennsylvania, a defendant is 2,257% more likely to receive the enhancement than in the Middle District of Pennsylvania. The disparities are startling.
In August, Attorney General Eric Holder announced steps to establish more discipline within the Department of Justice in how this discretion is used. It is a promising step but only that: a step. It is unclear how firm the attorney general is willing to be in tracking and constraining the use of this kind of discretion by prosecutors in different areas.
The larger lesson, and the more important one, is that after nearly 30 years, we still have gross and tragic disparities in federal sentencing, with the added burden of too many people put in prison, caused by mandatory sentencing and harsh sentencing guidelines. Tentative steps at reform will not be enough. It is time for a radical rethinking of the project as a whole and a recognition that this grand experiment in shifting discretion to prosecutors has failed.
December 4, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack
Friday, November 29, 2013
"Abstract Risk and the Politics of the Criminal Law"
The title of this post is the title of this intriguing looking new paper by Brenner Fissell now available via SSRN. Here is the abstract:
Much of the criminal law contains what theorists call “abstract endangerment” statutes — crimes that punish not actual, but hypothetical, creation of risk. Consider the case of underage alcohol possession: age does not necessarily imply immaturity, and possession does not necessarily lead to consumption. The crime is therefore doubly “abstract”: many violations will create no risk of harm at all but the conduct is nevertheless prohibited. Theoretical defenses of these overinclusive laws proceed mainly by emphasizing the deficiencies of individuals in assessing their own cases of risk. What these defenses implicitly assume, though, is that the entity the individual must defer to — the legislature — is itself superior at risk assessment.
This Article attacks this supposition, and discusses the problematic features of legislative deliberation regarding risk in the criminal law. Many extraneous considerations often enter, and certain inherent features of these bodies make them especially problematic. Defenders of abstract endangerment statutes, then, ought not simply assume that the legislature is epistemically superior to the individual, and bear a greater justificatory burden than they have satisfied thus far.
Wednesday, November 27, 2013
"Reducing Incarceration for Youthful Offenders with a Developmental Approach to Sentencing"
The title of this post is the title of this notable new paper by Samantha Buckingham now available via SSRN. Here is the abstract:
Current sentencing practices have proven to be an ineffective method of rehabilitating criminal defendants. Such practices are unresponsive to developmental science breakthroughs, fail to promote rehabilitation, and drain society’s limited resources. These deficiencies are most acute when dealing with youthful offenders. Incarcerating youthful offenders, who are amenable to rehabilitative efforts, under current sentencing practices only serves to ensure such individuals will never become productive members of society.
Drawing on the author’s experiences as a public defender, studies in developmental psychology and neuroscience, and the Supreme Court’s recent line of cases that acknowledge youthful offenders’ biological differences from adult offenders, the author proposes a restorative-justice approach to replace current sentencing practices. This solution includes tailoring a youthful offender’s sentence to his or her developmental level and offering a community-based mediation between victims and offenders.
The proposal counteracts a major deficiency of current sentencing practices — the failure to offer youthful offenders an opportunity to truly understand their crimes. Only by providing an opportunity to learn from an offense will a youthful offender be in a position to rehabilitate. This Article responds to possible critiques of the proposal, including concerns about the ability to accurately measure the success of a restorative-justice sentencing model, the fear of implicating the offender’s Fifth Amendment right against self-incrimination, and the cost of implementing mediation-based efforts. Ultimately, this Article determines that a developmentally appropriate, community-based sentencing scheme — with restorative justice overtones — best addresses the unique situation youthful offenders find themselves in. A sentence for a youthful offender should — indeed, must — present meaningful opportunities for the youthful offender to rehabilitate, and age-appropriate sentences grounded in restorative-justice principles will do this effectively.
November 27, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (7) | TrackBack
Monday, November 25, 2013
New Brennan Center report urges "Reforming Funding to Reduce Mass Incarceration"
As reported in this press release, late last week The Brennan Center for Justice published a notable new report setting out a notable new proposal under the title "Reforming Funding to Reduce Mass Incarceration." Here are highlights via the press release:
The proposal, dubbed by the authors “Success-Oriented Funding,” would recast the federal government’s $352 million Edward Byrne Memorial Justice Assistance Grant (JAG) Program, by changing the measures used to determine success of its grants. It reflects a broader proposed shift in criminal justice programs at all levels of government. The proposal could be implemented without legislation by the U.S. Department of Justice.
“Funding what works and demanding success is critical, especially given the stakes in criminal justice policy. This report marks an important step toward implementing this funding approach in Washington and beyond,” said Peter Orszag, former Director of the White House Office of Management and Budget, who wrote the proposal’s foreword.
The Center proposes major changes to the program’s “performance measures”, which are used to track a grant recipient’s use of the funds....
“What gets measured gets done,” said Inimai Chettiar, director of the Justice Program at the Brennan Center and one of the report’s authors. “Criminal justice funding should reflect what works. Too often, today, it is on autopilot. This proposal reflects an innovative new wave of law enforcement priorities that already have begun to transform policy. That is the way to keep streets safe, while reducing mass incarceration.”
Success-Oriented Funding would hold grant recipients accountable for what they do with the money they receive. By implementing direct links between funding and proven results, the government can ensure the criminal justice system is achieving goals while not increasing unintended social costs or widening the pipeline to prison.
The JAG program was launched nearly three decades ago at the height of the crime wave. As such, its performance measures center on questions about the quantity of arrests and prosecutions. Although funding levels are not based on rates of arrests and prosecutions, interviews with over 100 state and local officials and recipients found that many grant recipients interpreted the performance measure questions as indicating how they should focus their activity.
The Brennan Center’s new, more robust performance measures would better record how effective grant recipients are at reducing crime in their state or locality. For example, current volume-based performance measures record activity, such as total number of arrests, number of people charged with gun crimes, or number of cases prosecuted. The Brennan Center’s proposed new Success-Oriented performance measures record results, such as the increase or decrease in violent crime rate or what percentage of violent crime arrests resulted in convictions.
A Blue Ribbon Panel of criminal justice experts also provided guidance and comments on the measures, including leaders in law enforcement, prosecutors and public defenders, former government officials, and federal grant recipients. Participants included David LaBahn, president of the Association of Prosecuting Attorneys; John Firman, research director of the International Association of Chiefs of Police; and Jerry Madden, a senior fellow at Right on Crime....
In addition to implementing new metrics, the Brennan Center recommends the Justice Department require grant recipients to submit reports. By mandating that grant recipients answer the questions, the Justice Department can align state and local practices with modern criminal justice priorities of reducing both crime and mass incarceration. The reported data should then be publicly available for further analysis.
The full Brennan Center report can be accessed at this link.
Tuesday, November 19, 2013
What message does six-month prison sentence in high-profile NJ animal cruelty case really send?
The question in the title of this post is prompted by this lengthy local report about a high-profile New Jersey state sentencing, headlined "Brick couple sentenced to 6 months in jail for abusing dog, Sammy." Here are excerpts:
The township couple that admitted to abusing a 17-year-old dog named Sammy was sentenced to six months in jail on Monday. Brick residents Keith Morgan, 56, and Shauna Ewing Morgan, 43, stood in silence next to each other and between their respective attorneys while the sentence was read. The sentence also included a $1,000 fine, $13,500 in restitution, 30 days community service and the couple is prohibited from future ownership of an animal.
“This is what we wanted, this is what was deserved and it was justified,” Monmouth County SPCA Chief Victor “Buddy” Amato said. “This judge did the right thing.” A packed courtroom erupted in cheers when Judge Robert LePore announced jail time for the couple.
“Unless these individuals are imprisoned for their depraved, cruel and heinous conduct, such acts of animal cruelty will continue worldwide,” LePore said. “The lack of care provided to Sammy was inexcusable.” LePore said the sentence he issued was to deter future animal cruelty. “This court believes that a message needs to be sent not just to these defendants, but to all of society that animal cruelty is a national and global problem and must be addressed and deterred,” LePore said.
The charges stem from a March incident when Keith Morgan brought the Cocker Spaniel to the Associated Humane Society in Tinton Falls, claiming he found Sammy in a garbage bag on the side of the road, Amato said. Keith Morgan gave an interview to a local television station after he turned the dog in, claiming he found the dog. That interview was played in court during the sentencing. However, officials said they later learned that the couple had owned the dog for at least nine years.
Sammy was then brought to the Red Bank Veterinary Hospital for treatment because he was malnourished and his fur was covered in urine and matted together in knots to the extent that the dog could not stand up, Amato said. He was released to a foster family in April. Days after Sammy was turned in, authorities learned through an anonymous tip that the Morgans had a second dog, named Ady, at their home. Amato said that because Ady had been groomed before they found her, authorities they were unable to determine if she was neglected. The 3-year-old Cocker Spaniel was voluntarily surrendered to the SPCA and eventually placed in a new home.
Before LePore issued the sentencing, both of the Morgans made a statement to the judge, apologizing. “I was in a bad time in my life. I was depressed … because my wife left,” Keith Morgan said. “I apologize, I didn’t mean for this to happen.” He and his attorney Kevin Sheehy told the judge that Shauna Morgan wasn’t at the home for several months before the incident because the two were separated. Keith Morgan had also been diagnosed with a kidney disease and at one point was suicidal, Sheehy said.
Shauna Morgan’s attorney, Marc Schram, told the judge the couple did not have any contact during their separation, and found the conditions at the home when she returned. “I should have foreseen that Sammy wouldn’t have been safe with my husband, but I didn’t know he was going to get so sick. … If I had foreseen it I would have taken Sammy with me,” she said through tears. “I’m sorry it turned out the way it did.”...
Attorney Steven Zabarsky prosecuted the case and he said he was happy with the outcome. “On behalf of the state, I’ve very satisfied,” Zarbarsky said.
Sammy’s case garnered international attention and a Facebook page was created in support of the dog. An online petition calling on prosecutors to ask for the maximum sentence for the Brick couple received nearly 33,000 signatures.
The Morgans were arraigned on May 20, with more than 250 people packing the Brick municipal courtroom to watch. A line stretched out the door of the courthouse with supporters wearing t-shirts and holding signs demanding justice. During a July 15 hearing, which also drew approximately 150 Sammy supporters, a Staten Island, N.Y. woman yelled out “Go kill yourself” and was escorted out of the courtroom.
Ultimately the Morgans reached a plea agreement on Aug. 19, and Amato called the outcome a “win.” Keith Morgan pleaded guilty to one count of abuse of animal cruelty and filing a false report with law enforcement, while Shauna Ewing Morgan admitted to two counts of animal cruelty.
The eight-month case also stirred debates surrounding animal abuse. In May, N.J. 101.5 radio hosts Dennis Malloy, Judi Franco and Ray Rossi were under fire after they brought the case up on their respective shows. Social media posts claimed Malloy and Franco said animal rights activists needed to get their priorities straight, while Rossi allegedly said “untrue” and “hurtful” statements on air about one of the administrators of the Sammy the Cocker Spaniel Facebook page....
Capt. Richard Yocum, who is president of the state SPCA, said he was proud of Detective William Hyer and Deputy Chief Larry Donato, who investigated the case and of the ruling that was made. “The stand that they [the court] have taken against animal cruelty being unacceptable tonight was admirable,” Yocum said. “Sammy does have a loving home, he’s doing much, much better and he’s living out his life in a very good place.”
After the sentence, both of the Morgans’ attorneys said they would be filing an appeal Tuesday morning. The judge granted a motion for a stay to allow the Morgans to remain free for the appeal process.
Because I am an animal lover and have been a passionate pet owner for my whole life, I can understand how many people can and will get very worked up about animal abuse. Still, I cannot help but wonder how much NJ taxpayer money was spent in this prosecution, and I especially wonder if many other abused animals might have been better served if those resources had instead been directed to an animal shelter or to a public service campaign.
Effective use of state resources aside, the message I take away from this sentencing story is the telling (and I think unfortunate) reality that many folks view incarceration as the only serious and meaningful punishment even when it seems likely that creative alternative punishments could possibly be more significant and effective. This kind of case, in which the defendants do not appear to present any real risk to public safety, seems to me to be the perfect setting for developing thoughtful shaming sanctions and lengthy (animal-servicing) community service as a punishment that could and should keep an on-going spotlight on the problems of animal cruelty and better enable other to better understand how to avoid hurting animals in the first instance.
Monday, November 18, 2013
Ninth Circuit rejects Second Amendment attack on federal crime of gun possession by certain misdemeanants
In a lengthy panel opinion coupled with a notable concurrence, the Ninth Circuit today in US v. Chovan, No. 11-50107 (9th Cir. Nov. 18, 2013) (available here), rejects a defendant's Second Amendment challenge to the federal statute criminalizing gun possession by persons convicted of domestic violence misdemeanors. Here is how the majority opinion starts:
Following the entry of a conditional guilty plea, Daniel Chovan appeals the district court’s denial of his motion to dismiss an indictment against him for violation of 18 U.S.C. § 922(g)(9). Section 922(g)(9) prohibits persons convicted of domestic violence misdemeanors from possessing firearms for life. Chovan contends that § 922(g)(9) is unconstitutional both on its face and as applied to him because it violates his Second Amendment right to bear arms. In the alternative, he argues that § 922(g)(9) does not apply to him because his civil rights have been restored within the meaning of 18 U.S.C. § 921(a)(33)(B)(ii). We have jurisdiction pursuant to 28 U.S.C. § 1291. We reject Chovan’s “civil rights restored” argument, hold that intermediate scrutiny applies to his Second Amendment claim, and uphold § 922(g)(9) under intermediate scrutiny.
In a lengthy concurrence, Judge Bea explains why he thinks strict scrutiny is the right way to scrutinize the federal gun crime at issue here, and his opinion concludes this way:
The Heller opinion did not provide lower courts with explicit guidance on how to analyze challenges to statutes under the Second Amendment. If we are to apply the familiar tiers of scrutiny analysis in Second Amendment cases, instead of a pure textual, historical, and structural analysis, however, history and precedent still dictate a more stringent examination of these issues than the majority allow. Strict scrutiny has become an integral aspect of much of our constitutional jurisprudence. See Fallon, supra, at 1268 (ranking strict scrutiny “among the most important doctrinal elements in constitutional law”). After applying strict scrutiny to § 922(g)(9), I come to the same conclusion as do the majority, and uphold the law. The close look afforded by strict scrutiny, however, ensures that the law truly is narrowly tailored to further a compelling governmental interest, and ensures that the Second Amendment’s contours are drawn by the Constitution, and not by Congress.
November 18, 2013 in Collateral consequences, Gun policy and sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Second Amendment issues | Permalink | Comments (1) | TrackBack
Justice Sotomayor calls for Alabama's capital sentencing system to get a "fresh look"
SCOTUS wrapped up its formal November activities with an order list this morning that included two dissents from denials of cert in state criminal cases. SCOTUSblog here reports on these basics:
Among cases the Court declined to hear was a challenge to Alabama’s death sentencing scheme, filed by an inmate who was given such a sentence by the judge even though the jury had voted eight to four against that punishment. Justice Sonia Sotomayor, in a twelve-page dissent most of which was joined by Justice Stephen G. Breyer, said that the Court should take a new look at Alabama’s capital punishment approach. It is now the only state where judges have imposed death sentences contrary to advisory verdicts recommended by juries. In a part of the opinion that Justice Breyer did not join, Justice Sotomayor argued that the Alabama approach may violate a string of modern Court rulings enhancing the role of juries in the sentencing process. She wrote as the Court denied review in Woodward v. Alabama (13-5380).The Court’s denial of review in two other cases drew dissenting opinions or separate statements by Justice Samuel A. Alito, Jr. One was Rapelje v. McClellan (12-1480), a test of federal courts’ power in habeas cases to defer to summary rulings by state courts in criminal cases. Justice Antonin Scalia joined the Alito dissent in that case.
The case concerning Justice Alito has more to do with habeas review than sentencing issues, but the case concerning Justice Sotomayor has to be right in the wheel-house of sentencing fans. Here is how Justice Sotomayor's dissenting opinion (which has a graph in the middle) gets started and concludes:
The jury that convicted Mario Dion Woodward of capital murder voted 8 to 4 against imposing the death penalty. But the trial judge overrode the jury’s decision and sentenced Woodward to death after hearing new evidence and finding, contrary to the jury’s prior determination of the same question, that the aggravating circumstances outweighed the mitigating circumstances. The judge was statutorily entitled to do this under Alabama law, which provides that a jury’s decision as to whether a defendant should be executed is merely an “advisory verdict” that the trial judge may override if she disagrees with the jury’s conclusion. In the last decade, Alabama has been the only State in which judges have imposed the death penalty in the face of contrary jury verdicts. Since Alabama adopted its current statute, its judges have imposed death sentences on 95 defendants contrary to a jury’s verdict. [FN1] Forty-three of these defendants remain on death row today. Because I harbor deep concerns about whether this practice offends the Sixth and Eighth Amendments, I would grant Woodward’s petition for certiorari so that the Court could give this issue the close attention that it deserves....[FN1] A list of these 95 defendants sentenced to death after a jury verdict of life imprisonment is produced in an appendix to this opinion. By contrast, where juries have voted to impose the death penalty, Alabama judges have overridden that verdict in favor of a life sentence only nine times.
Eighteen years have passed since we last considered Alabama’s capital sentencing scheme, and much has changed since then. Today, Alabama stands alone: No other State condemns prisoners to death despite the considered judgment rendered by a cross-section of its citizens that the defendant ought to live. And Apprendi and its progeny have made clear the sanctity of the jury’s role in our system of criminal justice. Given these developments, we owe the validity of Alabama’s system a fresh look. I therefore respectfully dissent from the denial of certiorari.
"The Jurisprudence of Death and Youth: Now the Twain Should Meet"
The title of this post is the title of this notable new article by Janet Hoeffel now available on SSRN. Here is the abstract:
The Supreme Court recently married its "death is different" death penalty jurisprudence and its burgeoning "children are different too" jurisprudence to apply Eighth Amendment death penalty jurisprudence to juvenile non-death sentences in Graham v. Florida and Miller v. Alabama. This Article argues that the (practically non-existent) jurisprudence of juvenile transfer should travel further down this comparative road paved by the Court and insist that juvenile transfer proceedings be subject to the same scrutiny exercised over capital punishment proceedings. While Eighth Amendment process need not be literally incorporated into juvenile transfer proceedings, it should be adopted through the Due Process Clause.
The parallels between the death penalty and juvenile transfer are striking. Both involve a decision to expose a person to the most severe set of penalties available to the relevant justice system: a death sentence for adults in adult court; a transfer to adult court for youth in juvenile court. The decision to send an adult to his death is a decision to end his life; the decision to send a juvenile to adult court is a decision to end his childhood. Both decisions signify a life not worth saving, and therefore, both decisions are to apply to the "worst of the worst." As a result of the finality and seriousness of their consequences, both processes should require the strictest of procedures for reliable imposition of those consequences.
While the Court’s jurisprudence on procedures for imposing death is not a model, the Court has, at least, worked both to narrow who is subject to the death penalty and to reduce the potential for arbitrary and capricious imposition of death through procedures for guided discretion. The lessons learned in that context can be applied to improve juvenile transfer procedures that allow transfer of a child to adult court based on the unfettered and arbitrary discretion of a judge or, worse, a prosecutor. Furthermore, death penalty jurisprudence applied in capital cases, and as applied in Graham and Miller, leads to the conclusion that juvenile transfer laws allowing automatic transfer of a child to adult court, without an individualized consideration, violates due process.
Friday, November 15, 2013
If concerned principally about saving lives and public safety, can one reasonably oppose mass use of safer-driving technologies?
The question in title of this post is prompted by this local news item from my own local paper headlined "More Ohioans die on road in 2012." Here are excerpts:
Traffic fatalities rose last year across the United States for the first time since 2005, and Ohio was a big reason why, according to federal data. More people died in car crashes in 37 states in 2012 than in 2011, and only Texas experienced a bigger jump than Ohio did, according to data released yesterday by the National Highway Traffic Safety Administration....
In all, 1,123 people died in Ohio wrecks last year — an increase of 106 from 2011. More than 70 percent of the increase was attributed to alcohol and impaired driving. Nationwide, 33,561 people were killed in car crashes in 2012, an increase of 1,082. Ohio’s crashes accounted for about 10 percent of the nationwide increase....
Ohio’s trend mirrors what much of the country experienced in 2012: a big jump in traffic fatalities early in the year. About 72 percent of the increase nationwide occurred during the first quarter of the year, and Ralston said Ohio actually experienced a drop in traffic deaths during the second half of 2012. Motorcycle deaths increased in the United States for the third consecutive year.
“I think too many times when we don’t hear about things or think things are going well, we get complacent about that,” MADD Ohio Executive Director Doug Scoles said. “The thing that’s frustrating with this is, impaired driving is completely preventable.”
The National Highway Traffic Safety Administration also announced yesterday that it would develop plans before the end of the year to encourage automakers to incorporate safety features in more vehicles. Those features include seatbelt interlocks that prevent vehicles from being driven before a seat belt is fastened, alcohol-detection systems and collision avoidance.
MADD Ohio wants the state legislature to require ignition interlocks for all people convicted of drunken driving, and it’s hopeful that the auto industry will take a role in adding the safety technology, Scoles said. “I think crackdown campaigns are effective, (but) they’re short-lived,” he said.
As regular readers know well (even if just from this post yesterday), I like to focus on traffic laws as a means to test whether and when citizens are really prepared to live up to oft-heard claims about the importance of public safety and saving innocent lives. And this local article (just like the one I noted yesterday) further reinforces my sense that significant investments in safer-driving technologies may be the most ready and cost-effective way to save innocent lives and improve public safety.
Recent related post:
- If concerned principally about saving lives and public safety, can one reasonably oppose mass use red-light cameras?
Is AG Eric Holder going to stay on the job until he truly reforms American criminal justice?
The question in the title of this post is inspired by this new Washington Post article headlined "Reforming justice system is personal goal for Eric Holder Jr." Here are excerpts from the piece:
As the Justice Department seeks new ways to reduce the burgeoning U.S. prison population, its success is likely to depend on community programs such as the one in this small city in America’s heartland.
In the past 11 years, federal prosecutors here have authorized substance abuse treatment and other assistance for more than 100 low-level offenders as an alternative to prison sentences. Eighty-seven have successfully completed the program and, in the process, saved the federal government more than $6 million by sparing it the cost of incarceration....
Justice officials see the program in Peoria as a model for other communities — and central to the criminal justice reforms that Attorney General Eric H. Holder Jr. is moving to implement. In August, at an American Bar Association conference in San Francisco, Holder announced that low-level nonviolent drug offenders with no ties to gangs or large-scale drug organizations would no longer be charged with offenses that impose severe mandatory sentences. He has also introduced policies to reduce sentences for elderly, nonviolent inmates, to find alternatives to prison for nonviolent criminals, and to improve reentry programs to curb repeat offenses.
The announcements have heralded some of the most significant criminal justice policy shifts from the department in years. For Holder — who has said that as a U.S. attorney and judge he saw neighborhoods destroyed by both illegal drugs and the tough-on-crime legislation that has disproportionately affected black men — the issue has been personal.
“Day after day, I watched lines of young people, most often young men of color, stream through my courtroom,” Holder told ex-offenders Thursday during a visit to a St. Louis courthouse, one of a string of stops he is making to promote his reform agenda. “I learned how drug abuse, crime and incarceration can trap people in a destructive cycle. A cycle that weakens communities, tears families apart and destroys individual lives.”...Many of the department’s criminal justice reforms have bipartisan support, and Republican governors in some of the most conservative states have led the way on prison reform. Congress also has shown a renewed interest in reducing the nation’s prison population, including the introduction of a bill this week that would reauthorize the Second Chance Act, which funds grants for programs that support probation, parole and reentry programs across the country.
“Rather than incarcerating repeat offenders in the same families generation after generation, we can put our taxpayer dollars to better use to break this vicious cycle and turn lives around,” Sen. Rob Portman (R-Ohio), a former prosecutor and one of the bills sponsors, said in a statement.
Efforts to reduce the prison population have drawn criticism from some lawmakers, who are skeptical that new policies will reduce crime. “I am skeptical,” Sen. Charles E. Grassley (Iowa), the ranking Republican on the chamber’s Judiciary Committee, said at a a hearing last week. “Reducing prison sentences will bring prisoners out on the street sooner. The deterrent effect of imprisonment would be reduced. Many so-called nonviolent drug offenders have violent records. Some of these released offenders will commit additional crimes.”...
In a Philadelphia courtroom earlier this month, the attorney general watched more than a dozen drug offenders in a “reentry” program report to a judge to discuss their personal and work situations. Officials there said the program, which provides parenting classes, vocational training and job opportunities, has saved $1.5 million in annual incarceration costs because fewer ex-offenders are being sent back to prison. The national revocation rate for ex-offenders who are not in such programs is 47 percent; the rate among participants in the seven-year-old Philadelphia program is about 20 percent.
During his stops Thursday, Holder met with judges and pretrial service officers and watched as a district court judge encouraged ex-offenders to overcome their drug addictions and stay out of prison. He spoke emotionally to a group about how his nephew struggled to overcome drug addiction.
Inside a federal courthouse in St. Louis, he watched a ceremony in which ex-offenders graduated from an intensive recovery program called EARN (Expanding Addicts’ Recovery Network). “I look at you all and I see myself,” he said. “I grew up in a neighborhood in New York City where people like you would have been my friends. We would have gone to school together. We would have tried to learn about girls together. We would have played basketball together. So I can’t help but feel mindful of the fact that, although I’m here in my capacity as attorney general of the United States, a few of the people I grew up with, good people like you, ended up taking different paths.”
“Some of them didn’t catch the same breaks,” the nation’s top law enforcement official said. “Some had to deal with drug issues. . . . I know that everyone makes mistakes — everyone. Including me. And that’s why I wanted to be here today to tell you in person how proud I am that each of you has decided not to let your mistakes define you and not to make excuses, but to make the most of the opportunities that you’ve been given.”
Right after President Obama's re-election, as noted in this post from last November, AG Holder was talking about staying on as AG for only "about a year" into this second Presidential term. But that year has now passed, and I have heard very little new buzz about AG Holder moving on. And, if he is truly committed to engineering significant and lasting criminal justice reform, I think he may need (at least) the next three years to really have a chance to get this done.
November 15, 2013 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack
"Reducing crime by reducing incarceration"
The title of this post is the headline of this new Washington Times op-ed authored by David Cole and Marc Mauer. Here are excerpts:
The United States remains the world leader in imprisonment, with an incarceration rate five times higher than that of many of our European allies. It wasn’t always this way. From 1925 through 1975, our incarceration rate was about 160 per 100,000 persons. Today it is nearly 700 per 100,000. It rose consistently for more than three decades, largely as a result of changes in policy, not crime rates. These policy changes, under the rubric of the “get tough” movement, were designed to send more people to prison and to keep them there longer. As the prison population has expanded, however, whatever impact incarceration may have had on crime has confronted the law of diminishing returns. Meanwhile, the corrections system costs us $80 billion a year.
In response to these concerns, recent years have seen significant reforms across the country. States from Texas to California to New York have reduced mandatory minimum sentences, softened “three-strikes” laws, or established drug-offender diversion programs. The number of people incarcerated in state prisons nationwide has dropped for three years in a row. California, New York and New Jersey have each reduced their prison populations by about 20 percent in the past decade — with no increases in crime.
In an era of heightened partisan politics, reform is a rare bipartisan issue. Attorney General Eric H. Holder Jr. and Republican Sens. Rand Paul and Mike Lee don’t often see eye to eye, but they have all advocated measures to reduce mandatory minimums. The American Legislative Exchange Council, which promotes free-market law reforms in the states, has identified reducing prison overcrowding as one of its priorities. Regardless of one’s politics, no one can be proud of the fact that the world’s wealthiest society locks up more of its citizens per capita than any other nation.
Most of the reforms thus far have focused on nonviolent offenders, especially drug-law violators — and for good reason. The large-scale incarceration of low-level drug offenders has had little impact on the drug trade; street-corner sellers and couriers are easily replaced. Incarceration imposes substantial costs on society at large, though, and on the life chances and families of those locked up.
If we are to tackle the incarceration rate effectively, we need to focus not only on those who receive the shortest sentences, but also on those who receive the longest sentences — lifers. Even as incarceration rates have begun to fall, life sentences have increased. One in nine prisoners in the United States is now serving a life sentence, including 10,000 serving life for a nonviolent offense (often the “third strike” under a three-strikes law). Nearly a third of the life sentences are imposed with no possibility of parole.
While most of these individuals have committed serious offenses, the increased reliance on life sentences is counterproductive. Criminal offenses tend to drop with age. As offenders grow older, their incarceration is increasingly less likely to have any incapacitative value. Nor is there any evidence that life sentences have greater deterrent effect. Studies find that it is the certainty of punishment, not its severity, that is most correlated with deterrence. Yet many states have adopted a “life means life” policy with no consideration of parole. Such sentences effectively write off the offender, rejecting the possibility of redemption altogether....
A key factor in the prison expansion of recent decades has been that offenders sentenced to prison are serving much longer sentences. American sentences today are frequently two to three times the length for similar offenses in the United Kingdom, the Netherlands, France and other industrialized nations. Sentencing reform has begun with the low-hanging fruit of mandatory minimums for nonviolent offenses, but if it is to succeed, we must reduce the length of criminal sentences generally.
Recent related post:
- New ACLU report spotlights thousands of nonviolent prisoners serving LWOP terms
- New York Times op-ed asks "Serving Life for This?"
Thursday, November 14, 2013
If concerned principally about saving lives and public safety, can one reasonably oppose mass use red-light cameras?
The question in title of this post is prompted by this local news item from my own local paper headlined "Coalition says red-light cameras reducing accidents, saving lives." Here are excerpts:
The battle over whether red-light cameras are primarily lifesavers or money-makers is being re-fought in the General Assembly seven years after it began. Cameras placed at critical intersections, including 38 in Columbus, help dramatically reduce accidents and save lives, a statewide coalition said yesterday, pushing back against a legislative proposal that would all but eliminate the devices in Ohio.
House Bill 69, passed by the House this year, “is bad public policy that puts people at risk on Ohio roads,” Sgt. Brett Bauer of the Springfield Police Department said at a Statehouse news conference. Red-light cameras “are making roads safer in Springfield and across the state,” he said. The bill would limit cameras to school zones — and then only when an officer was present.
A coalition of police officials from Columbus and other cities, plus municipal officials, bicycle enthusiasts and safety advocates, appeared at the news conference alongside Sen. Kevin Bacon, R-Minerva Park, who is planning legislation to reform how the cameras may be used rather than repeal the use of cameras, as the House bill would do.
The most emotional advocate in favor of continuing using the cameras was Paul Oberhauser of Somerset, whose 31-year-old daughter, Sarah, was killed in 2002 when a motorist ran a red light and hit her car in an intersection at 55 mph. “The year Sarah died, about 1,000 people nationally were killed in red-light accidents,” Oberhauser said. “I know you understand this carnage has got to stop.”...
Right-angle crashes are down 74 percent in Columbus, while rear-end crashes have dropped 25 percent at intersections with cameras, said Lt. Brenton Mull of the Columbus Division of Police. The city has 38 cameras at intersections scattered across the city. “It is a model program that should be emulated, not thrown out because someone doesn’t like getting a ticket from a red-light camera,” he said.
As regular readers (and my students) know well, I like to focus on traffic laws as a means to test whether and when citizens are really prepared to live up to oft-heard claims about the importance of public safety and saving innocent lives. In the context of debates over gun control, the death penalty, mass incarceration and other high-profile public policy criminal justice debates, there is often considerable competing claims and evidence concerning whether and when certain government policies actually do or do not save innocent lives and improve public safety. But this local article confirms my understanding that red-light cameras do tend to improve public safety at least somewhat (and does so in a way that actually raises revenue for localities rather than require significant expenditures).
I fully understand why persons principally concerned about privacy rights or due process or government graft might have real problems with widespread use and potential abuse of red-light cameras. But I really want to hear from readers if they think that those persons who say their principally criminal justice concerns relate to saving lives and public safety (as I do) have any sound basis for opposing mass use of these cameras.