Sentencing Law and Policy

Noticing some gendered realities of death penalty administration

This local article from Alabama, headlined " Death row-worthy crimes largely committed by men," spotlights a couple of issues about death penalty administration that I always find notable.  Here are snippets:

If a Franklin County judge overrides a jury's recommendation and sentences Christie Michelle Scott to die by lethal injection, she would be the first woman in the county to receive the death penalty.

Franklin Circuit Court Judge Terry Dempsey will impose her sentence Aug. 5. The jury who convicted her of killing her 6-year-old son, Mason, recommended Friday that she be sentenced to life in prison without parole.  Dempsey is not obligated to accept the jury's recommendation and could instead sentence her to death.

A death sentence for Scott, who was convicted of three counts of capital murder Wednesday, would also make her one of a few women in Alabama ever to be sentenced to die for a crime.

Since 1973, only 10 women have received death sentences in Alabama, said Richard Dieter, director of the Washington, D.C.-based Death Penalty Information Center, a nonprofit that tracks capital punishment in the United States. Only one of those women, Lynda L. Block, who was convicted in 1994 for killing an Opelika policeman, has been executed. She was executed May, 10, 2002, and since then no other woman has been executed in Alabama, according the Alabama Department of Corrections.

Only four women have been executed in Alabama since 1927, according to state corrections statistics. During that same period, 192 men have been executed. There are 199 men and four women on Alabama's death row.

Bryan K. Fair, a professor of law at the University of Alabama, said the wide margin between the number of men and women being sentenced to death is not a result of courts being more lenient on women. Instead, it's a result of fewer women committing crimes that meet the criteria for capital punishment, such as a homicide committed during a robbery or rape. "The kinds of offenses that can be punished by death are typically committed by men," Fair said. "In our society in general, violent crimes are committed most often by men."

Dieter said Alabama is not alone in having far fewer women than men on death row.  "Most of the women who are on death row were convicted of killing their husband or someone they knew," Dieter said. "Women rarely kill a stranger, such as during a robbery, because women do not typically commit violent crimes."

Franklin County District Attorney Joey Rushing calls the crime Scott committed the most heinous ever in the county. "There's nothing worse than a mother murdering a child for insurance and because they didn't want him," Rushing said at trial....

Because of the heinous nature of the child's death, Rushing said he will ask Dempsey to consider the death penalty at Scott's Aug. 5 sentencing hearing.  He said five of the 12 jurors supported sending Scott to death row.

This article not only raises issues of gender, but also the role of judicial overrides to correct biases in the administration of the death penalty.  Should Franklin Circuit Court Judge Terry Dempsey feel a special obligation to impose a sentence of death if he believes that the jury recommended a life sentence only or primarily because the defendant here was a woman?

"Judge Orders Former Bristol-Myers Executive to Write Book"

The title of this post is the headline of this New York Times article discussing a creative sentencing term imposed by a federal judge on a white-collar offender.  Here are a few of the details:

On Monday, Judge Ricardo M. Urbina of the United States District Court for the District of Columbia, sentenced a former senior pharmaceutical executive to write a book. Earlier this year the executive, Dr. Andrew G. Bodnar, a former senior vice president at Bristol-Myers Squibb, had pleaded guilty to making a false statement to the federal government about the company’s efforts to resolve a patent dispute over the blood thinner Plavix.

The judge sentenced Dr. Bodnar to two years of probation during which he is to write a book about his experience connected to the case. Dr. Bodnar must also pay a $5,000 fine. Elkan Abramowitz, Dr. Bodnar’s lawyer, said he had never before heard of a case in which a judge sentenced a defendant to write a book.

But this is not the first time Judge Urbina has demanded written penance. In 1998, he sentenced a prominent Washington lobbyist to write and distribute a monograph to 2,000 lobbyists at the defendant’s own expense. The lobbyist, James H. Lake, pleaded guilty to making illegal corporate campaign contributions. Judge Urbina ordered him to pay a $150,000 fine and to write a monograph describing the criminal provisions of federal laws governing corporate campaign contributions.

In the sentencing hearing on Monday, Judge Urbina said he would like to see Dr. Bodnar write a book about the Plavix case as a cautionary tale to other executives. The case concerned accusations that Bristol-Myers had made false statements to federal investigators about the company’s attempt to resolve a patent dispute with a Canadian maker of generic drugs, Apotex.

The WSJ Law Blog has this useful follow-up post on the sentence, which is titled "Go Directly to . . . Authorship? More on Judge Urbina’s Odd Sentence" and includes an interesting Q&A with Dan Markel.

"Does Unconscious Racial Bias Affect Trial Judges?"

The title of this post is the title of this piece appearing on SSRN.  Here is the abstract:

Race matters in the criminal justice system.  Black defendants appear to fare worse than similarly situated white defendants.  Why?  Implicit bias is one possibility.  Researchers, using a well-known measure called the implicit association test, have found that most white Americans harbor implicit bias toward Black Americans.  Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases?  And if so, do these biases account for racially disparate outcomes in the criminal justice system?

We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results — which are both discouraging and encouraging — raise profound issues for courts and society.  We find that judges harbor the same kinds of implicit biases as others; that these biases can influence their judgment; but that given sufficient motivation, judges can compensate for the influence of these biases.

How could more female offenders impact the reality and perception of sex offender sentencing?

This new article from the Dallas Morning News, headlined "Child sex cases involving women are on the rise in Texas," discusses a notable trend in sex offense cases:

The number of women serving time in Texas prisons for having sex with minors has increased more than 36 percent in the last five years. "Up to five years ago, we didn't talk about this," said Keith Durkin, a criminologist and researcher at Ohio Northern University. "Our culture is becoming more aware that women can and do commit these offenses."...

Last month, as a Collin County jury deliberated whether a 40-year-old Allen woman was guilty of having sex with two teenage boys, two other young men came forward with similar accusations against her. Rather than wait for a verdict, Regina Bowling pleaded guilty to two counts of indecency with a child and was sentenced to 10 years in prison.

Bowling is one of a growing number of women in Texas and nationwide accused of committing sex crimes against minors. So far this year, at least six Collin County women charged with having sex with minors – including Bowling – are either being prosecuted or have already had their cases adjudicated....

Studies suggest that female sex offenders often have a history of depression and anxiety. In addition, like many of their male counterparts, women abusers also may have been sexually abused as children. Durkin said teenage boys are ideal victims of such crimes because they're less likely to complain and, if they do, their outcries "may be dismissed as teenage fish stories."...

Most of the women convicted of sex crimes against minors have had relationships with men their own age but abuse children for their own emotional needs, said Anne Mooney, supervisor of the prison treatment program, which launched in October 2000. She said that unlike male sex offenders, who often seem to lead outwardly normal lives and have families and stable jobs, women convicted of these crimes often have chaotic lives, marked by substance abuse, frequent moves and erratic employment.

I have blogged before about notable cases in which female sex offenders have been sentenced differently than male sex offenders.  But while it is easy to note how sex offense cases appear impacted by gender dynamics, it is hard to feel confident if and how these cases should be impacted by gender dynamics. 

Some prior related posts:

• Notable plea deal to avoid mandatory minimum in notable sex case
• A better example of sex-offense plea deal gender disparity?
• Another example of gender bias in adult-youth sex offense sentencing?

Will AG Holder urge the criminal justice system to "examine its racial soul"?

As detailed in this CNN article, Attorney General Eric Holder gave his first major speech yesterday, and it was a barn-burner about race relations and race discussions in the United States.  Here is how the CNN piece describes the speech:

In a blunt assessment of race relations in the United States, Attorney General Eric Holder Wednesday called the American people "essentially a nation of cowards" in failing to openly discuss the issue of race.  Eric Holder spoke to an overflowing crowd for Black History Month at the Justice Department Wednesday.

In his first major speech since being confirmed, the nation's first black attorney general told an overflow crowd celebrating Black History Month at the Justice Department the nation remains "voluntarily socially segregated."

"Though this nation has proudly thought of itself as an ethnic melting pot, in things racial we have always been and continue to be, in too many ways, essentially a nation of cowards," Holder declared.

Holder urged Americans of all races to use Black History Month as a time to have a forthright national conversation between blacks and whites to discuss aspects of race which are ignored because they are uncomfortable.

The full text of this interesting speech can be accessed at this link. Notably, crime (but not punishment) is mentioned briefly toward the end of the speech in this somewhat peculiar paragraph:

And today the link between the black experience and this country is still evident.  While the problems that continue to afflict the black community may be more severe, they are an indication of where the rest of the nation may be if corrective measures are not taken.  Our inner cities are still too conversant with crime but the level of fear generated by that crime, now found in once quiet, and now electronically padlocked suburbs is alarming and further demonstrates that our past, present and future are linked. It is not safe for this nation to assume that the unaddressed social problems in the poorest parts of our country can be isolated and will not ultimately affect the larger society.

I find it is telling and disappointing that racial disparities in state and federal criminal justice systems (and the related problem of mass incarceration for young black men) do not get mentioned by the nation's top law enforcement officer when calling upon the county to "examine its racial soul."  As everyone who works in criminal justice systems know, that racial soul is on full display in criminal courts and in prisons and jails every day.  As I have been saying for years (examples here and here), the reality of racial disparities in modern crime and punishment demands that criminal justice reforms should and must be at the heart of any serious modern civil rights movement.

I am encouraged that the new AG wants Americans to have frank discussions about race in the United States.  I hope he will show he is willing to stimulate hard conversations talking bluntly in future speeches about the racial realities of modern crime and punishment.

Some related posts:

• Two potent new reports on race and the drug war
• Examining the disconcerting realities of racial disparities
• Another strong piece about race and justice
• New JPI report on racial disparities in incarceration
• Reflecting on race and criminal justice realities to honor MLK's legacy
• Can and will Iowa's "Minority Impact Statement" legislation help with criminal justice disparities?
• Should criminal justice reform be the new civil rights movement?

Report documents new demographics of federal criminal justice system

As detailed in this Los Angeles Times article, a new study details that Latinos now comprise the largest group of offenders prosecuted in federal court:

Driven by a crackdown on illegal immigration, Latinos now make up by far the largest percentage of offenders sentenced in federal courts, according to a study released Wednesday.

Latinos accounted for 40% of all people sentenced to federal crimes in 2007, even though they made up only 13% of the U.S. adult population, according to the study by the nonpartisan Pew Research Center. In 1991, Latinos made up 24% of all sentenced offenders.

The study's authors, Mark Hugo Lopez and Michael T. Light, attribute the change in part to the increase in the undocumented immigrant population and to federal enforcement programs such as Operation Gatekeeper, which targeted illegal crossers along the Southwest border.

In 2007, nearly half of Latino offenders were sentenced for an immigration offense, up from 1 in 5 in 1991. Immigration offenses represented nearly a quarter of all federal convictions in 2007, up from 7% in 1991. "There was a very sharp rise of immigration offenses as a share of all offenses," said Paul Taylor, executive vice president of the Pew Research Center.

The full report, which is titled "A Rising Share: Hispanics and Federal Crime," is available at this link

"Racial Disproportionality in the American Prison Population"

The title of this post is the start of the title of this article from the Fall 2008 issue of the Justice Policy Journal.  Especially after a week in which many are eager to assert we have entered a new era when it comes to racial issues and justice issues, the article provide an important reminder of some critical criminal justice reality. As I have mentioned throughout the week, President Obama's Inaugural Address was inspirational when discussing "that noble idea passed on from generation to generation: the God-given promise that all are equal, all are free, and all deserve a chance to pursue their full measure of happiness."  But, as the JPJ article highlights, the US now denies freedom through incarceration quite unequally.  Here is the start of the article's abstract:

Statistics indicate that racial/ethnic minorities, particularly black and Hispanic males, face a disproportionately high risk of incarceration in the United States.  We argue that this is the most serious issue facing contemporary criminal justice policymakers.  This determination is made by assessing the negative impact that incarceration can have on individuals, their communities, and the integration of minorities into the nation’s larger social, economic, and political landscape.

EJI files seeks cert on claim that juve LWOP is unconstitutional for 13-year-old offender

I just received a helpful e-mail from the folks at Equal Justice Initiative informing me of a recently filed cert petition challenging under the Eighth Amendment a sentence of life without parole given to an offender who was only 13 years old(!) at the time of his crime.  The full petition can be downloaded below, and here is additional information from this EJI link about this stunning case:

Joe Sullivan is one of only two 13-year-olds in the United States to be sentenced to die in prison for an offense in which no one was killed. Both of these sentences were imposed in Florida, making Florida the only state in the country to have sentenced a 13-year-old to die in prison for a non-homicide.

A severely mentally disabled boy, Joe was blamed by an older boy for a sexual battery that was allegedly committed when they broke into a home together.  The older boy received a short sentence in juvenile detention, but Joe was tried as an adult, convicted of sexual battery, and sentenced to life imprisonment without the possibility of parole.

Only eight people in the country are sentenced to die in prison for any offense committed at age 13.

The lawyer who represented Joe in his one-day trial has since been suspended from the practice of law, and the biological evidence that could have exonerated Joe was destroyed in 1993.  The lawyer appointed to represent Joe on appeal informed the court that there were no issues in his case worth appealing. Joe was unable to challenge his conviction and sentence earlier because he could not afford legal assistance.

Joe has spent 19 years in a Florida prison, where he has been assaulted and suffered deteriorating health. He is now confined to a wheelchair. 

When I learn about cases like this, I have a hard time believing that a country founded on the principles of liberty has become so willing to be so repressive through our criminal justice systems.  Regular readers will not be surprised to hear that I hope the US Supreme Court will take up this case.  And I am discouraged that this kind of case even exists and that officials in other branches of our government cannot bring themselves to address these kinds of sad cases and instead only will react if and when courts order them to be more just and sensible in their sentencing policies. 

Download Sullivan cert petition from EJI

Gender bias and the application of the death penalty

As detailed in this local article, headlined "Tennessee moves closer to executing first woman: Sixth Circuit denies appeal to woman convicted in murder for hire of husband," a new federal habeas ruling in a state capital case provides an effective opportunity to reflect on gender bias in the application of the death penalty.  Let's start with the basics of the new ruling and the underlying crime:

The first woman ever to be sentenced to death in Tennessee is a step closer to the death chamber today after the Sixth Circuit Court of Appeals denied her habeas petition in a 2-1 decision. Nashville based Judge Gil Merritt filed the dissenting opinion.

Gaile K. Owens was convicted in Shelby County in 1986 of accessory before the fact in the 1985 murder of her husband, Ronald Owens.  The man who killed her husband, Sidney Porterfield, was also sentenced to death. Owens committed her crime on February 17, 1985 and was convicted on January 4, 1986. She entered prison on February 21, 1986.

The Sixth Circuit decision is available at this link, and this paragraph from the start of Judge Merritt's dissent highlights the gendered realities that flow through this capital case:

The facts about Ryan Owens’ cruel and sadistic behavior toward his wife now make an overwhelming case of domestic violence and psychological abuse in mitigation of the murder case against Gaile Owens. From the beginning, Mrs. Owens’ counsel knew that this was her best — indeed, her only — defense.  Before trial, her counsel told the trial court that in his opinion: “This case has a meritorious defense in the battered-wife syndrome.” (App. 120.)  The Memphis district attorneys obviously knew that this was the defense theory.  But this defense was never developed or even mentioned to the jury during the trial because of the cover-up of exculpatory evidence by the Memphis prosecutor and the complete failure of defense counsel to conduct a proper investigation of Ryan Owens’ sadistic behavior toward his wife.  I will discuss the Memphis prosecutor’s cover-up of exculpatory evidence first, then defense counsel’s failure to investigate and develop the defense, and finally the refusal of the Memphis trial court to allow in evidence one of the defendant’s best lines of mitigation testimony.

Though Judge Merritt's dissent here suggests gendered realities led to the murder and death sentence in this case, others might argue that the gender bias we see in the application of the death penalty usually helps women and disfavored men. 

The DPIC has this great page on women and the death penalty (from which I got the picture above). As Professor Vic Streib has effectively documented in this great accounting from the DPIC page, women make up 10% of those arrested for murder, but make up less than 2% of those persons on death row and less than 1% of those executed in the modern capital era.  And yet, as the Owens case perhaps suggests, maybe even those very few women sent to the row and executed could be themselves the victim of broader societal gender biases.

UPDATE:  In a notable coincidence, this news report on an Ohio Supreme Court decision handed down just today indicates that the number of women on Ohio's death row has been now cut in half:

Citing a judge's error, the Ohio Supreme Court on Wednesday threw out the death sentence of a woman who killed her 4-year-old son and set a fire to hide evidence of the crime.  The move leaves just one woman in Ohio facing execution.

Though the state has an active capital punishment system, it doesn't have a history of sending many women to death row.  Only six women have been sentenced to death under the state's 1981 capital punishment law.

Pardons, politics, race and justice: why Holder should come out swinging

President-elect Obama's selection of Eric Holder to be the next U.S. Attorney General is generating more buzz this morning, with this new piece at Politico, headlined "Holder pardon makes Dems squirm," and this new editorial at the Wall Street Journal, titled "Eric Holder's Politics: His years at Clinton Justice don't inspire confidence."  Both pieces effectively highlight how the ugly pardons of the Clinton era provide a basis for questioning Holder's ability to be unduly influenced by political considerations. 

There is, of course, some irony in folks attacking Holder primarily for political reasons by questioning if he is too much influenced by politics reasons.  But I am never troubled by a political system acting politically as long as there is transparency.  What is starting to trouble me, however, is the prospect that the public debate over our nation's first African-American AG nominee is going to focus on a few dumb decisions by his boss roughly a decade ago.

As I noted in this prior post, the import and impact of racial issues in all aspects of the work of the federal Justice Department (both criminal and civil) should not be overlooked.  For this reason and many others, the potential appointment of the first African-American Attorney General is noteworthy and perhaps quite consequential.  Though lots of (disproportionately white and rich) Senators apparently want to talk with Holder about pardons, war on terror and other political issues, I would like to see Holder come out swinging in the confirmation debate by raising race and justice issues right from the start. 

Notably, an effort to put Senators back on their heels during a confirmation hearing by speaking about racial issues worked quite well for Justice Clarence Thomas.  It would be quite interesting if Holder had the guts to take a page from the Thomas playbook.

Some recent Holder as AG posts:

• President-Elect Obama officially names Eric Holder as his AG pick
• Lots of buzzing around Eric Holder as the next US Attorney General
• Three late afternoon thoughts on the Holder pick: race, tough and tech
• Interesting reflections on Obama appointees from drug policy reformers

• Any early federal sentencing thoughts on Eric Holder, the next U.S. Attorney General?

NYC Mayor Bloomberg pushing for Plaxico Burress to get at least 3½ years in state prison, leading me to many questions

Thanks to the apparent foolishness of a prominent NFL player, the folks at Families Against Mandatory Minimums and at the National Rifle Association might have a new high-profile poster-child for their very different public policy causes.  I am referencing, of course, the case involving New York Giants wide-receiver Plaxico Burress, whose major criminal law problems are well summarized in these snippets of this New York Times article (emphasis added):

Giants receiver Plaxico Burress was arraigned Monday in a Manhattan criminal court, charged with two separate counts of criminal possession of a handgun in the second degree after accidentally shooting himself in the thigh three days ago at a Midtown nightclub.

He faces a mandatory sentence of 3½ years in state prison, with a maximum of 15 years, on each count....

After a long day — during which Burress spent about five hours at the New York City Police Department’s 17th Precinct station house, where he likely posed for mug shots, was fingerprinted and sat for interviews with detectives — details of the shooting became clearer.

The police said that Burress arrived at the Latin Quarter nightclub in Manhattan on Friday at 11:30 p.m. with four others, including teammates linebacker Antonio Pierce and Derrick Ward. The other two members of their party were not football players, according to police. At 12:05 a.m., a single gunshot is heard.

The criminal complaint, released by prosecutors Monday, said that an onlooker saw Burress near the V.I.P. area of the club holding a drink in his left hand and fidgeting his right hand in the area of the waistline of his pants. The witness then heard a single “pop” sound before hearing Burress say, “Take me to the hospital.”

Burress was on the ground, with his legs shaking, when a bloody gun — a .40-caliber Glock pistol — fell out of his pant leg and onto the floor, the onlooker said.  Later, Burress, who does not have a permit to carry a handgun in New York City, was treated and released at a hospital before returning to his home in Totowa, N.J.

On Monday, Mayor Michael R. Bloomberg harshly criticized Burress for carrying an illegal handgun; New York Presbyterian Hospital for failing to call the police of his gun-related injury, as city law requires; and the New York Giants, which also neglected to notify the authorities.

“Our children are getting killed with guns in the streets.  Our police officers are getting killed with guns in the hands of criminals, and because of that, we got the State Legislature to pass a law that if you carry a loaded handgun, you get automatically 3½ years in the slammer,” Bloomberg said, speaking to reporters....  “I don’t think that anybody should be exempt from that, and I think it would be an outrage if we didn’t prosecute to the fullest extent of the law, particularly people who live in the public domain, make their living because of their visibility; they are the role models for our kids.”

Bloomberg said that the police did not find out about the incident until it was reported on TV, and that the Giants should have immediately notified the authorities of the shooting.  He said the team had a responsibility to do so if their players want to be role models to the public....

Bloomberg also criticized the hospital for failing to call the police. “I think also it is just outrage that the hospital didn’t do what they’re legally required to do,” he said. “It’s a misdemeanor, it’s a chargeable offense and I think that the district attorney should certainly go after the management of this hospital.”

Wow!  Though I do not teach my upper-level sentencing course until next semester, this high-profile case, with its many notable participants and many possible legal issues, sounds like a problem I might give on my final exam.  Consider these questions right off the bat:

1.  In light of the apparently undisputed facts, is there any legally justifiable way for NY state prosecutors to avoid seeking to convict Burress of the state crime which carries a mandatory minimum sentence of 3½ years in state prison?

2.  Can and should Burress and his legal team raise a Heller Second Amendment right of self-defense claim in response to his criminal charges?  Assuming the Second Amendment gets applied to the states (which seems very likely) and assuming Burress says he carries his gun for personal self-defense (which seems very plausible), anyone who talks seriously about a fundamental right of self-defense (like those at the NRA) ought to be looking to give Burress some help in this case.

3.  Is Mayor Bloomberg already making it easier for Burress and his legal team (A) to argue he cannot get a fair trial in NYC, and/or (B) to suggest to the jury (directly or indirectly) that it should consider nullification in this case simply to avoid forcing Burress to go to state prison for 3½ years?

4.  Can and should Burress and his legal team raise a head-on due process (or cruel and unusual punishment) constitutional challenge to the statutory mandatory minimum sentence in this case?  In light of President-Elect Obama's stated expression of concerns about mandatory minimum sentencing statutes and the Supreme Court's ever-evolving sentencing jurisprudence, the time might be ripe for lawyers at FAMM and other public policy groups to start making a full-scale legal attack on the very constitutionality of mandatory minimum sentencing provisions.  Perhaps this line of constitutional argument just got a prominent celebrity spokesman.

The Sentencing Project's thoughtful call for racial justice

On Friday, I received from The Sentencing Project the following e-mail announcing an important new report addressing racial justice: 

We're pleased to call your attention to a newly released report, Compact for Racial Justice: An Agenda for Fairness and Unity.  The publication was produced by the Applied Research Center as a proactive agenda for fairness and unity in communities, politics, and the law. 
 
The Sentencing Project was the lead author of the chapter promoting criminal justice reforms (beginning at page 17). In this chapter, we discuss the failed crime policies of the past 30 years, marked by the six-fold increase in the prison population since 1972.  Much of this increase can be attributed to the War on Drugs and the consequent sentencing disparities it imposed.   In addition to calling for reforms of current policies, we caution policymakers in the new administration against repeating the mistakes of the past through enacting policies and practices that impose harsh penalties that produce disproportionate effects on minorities, youth, and immigrants. 
 
Finally, we offer four specific recommendations for immediate action: implement racial impact statements, abolish the mandatory detention of immigrants, support people in reentry and the communities where they return, and make racial equity a standard for all criminal justice policy and practice.
 
You can obtain this publication here.

New ACS paper on racial disparities in the death penalty

A new issue brief from the American Constitution Society authored by Scott Phillips addresses disparities in the modern administration of capital punishment. The paper is titled, "Racial Disparities in Capital Punishment: Blind Justice Requires a Blindfold," and is available at this link. Here's the description from ACS:

In this Issue Brief, Professor Phillips describes research he conducted on race and capital punishment in Harris County, Texas.  The author reports finding that the death penalty is more likely to be imposed against black defendants than white defendants, and death is more likely to be imposed on behalf of white victims than black victims.  Professor Phillips explains that his research indicates that the racial disparities arise in the District Attorney’s decision to seek the death penalty, rather than with the jury.  He suggests that because the Supreme Court is unlikely to overrule McCleskey v. Kemp in the near future and find that capital punishment is unconstitutional based on statistical evidence of racial disparities, other means for reducing racial disparities in the death penalty should be implemented.  He proposes that prosecutors’ offices that want to institute genuine race-blind processes for deciding whether to seek the death penalty should consider "desocializing" the decision to seek the death penalty.  Concrete steps that District Attorney’s offices can take to reduce the social information available to judicial actors in the capital litigation process, he suggests, include eliminating information that might insinuate the race of the victim or defendant — "racial markers" — from all documents considered in the District Attorney’s decision whether to seek the death penalty.

"Reducing Racial Disparity in the Criminal Justice System"

The title of this post is the title of this new report from The Sentencing Project.  Here is how the report is described from an e-mail I received today:

The Sentencing Project has just published a new edition of "Reducing Racial Disparity in the Criminal Justice System," a comprehensive manual for practitioners and policymakers. The publication provides insight into how racial disparities develop in the criminal justice system, and workable solutions to address and reduce disparities. The manual provides strategies for addressing disparities at each stage of the system, as well as 17 "best practices" illustrating practitioner approaches for enhancing fairness.

"Reducing Racial Disparity in the Criminal Justice System" is a tool for criminal justice practitioners, policymakers, and community organizations seeking to develop constructive approaches to one of the most challenging problems facing the criminal justice system.

Gay marriage debate in California goes to prison

I often tell my students that important public policy issues always have a criminal justice angle.  This AP article, headlined "Calif. Ponders Gay Marriage For Inmates: State's Corrections Department Drafting Guidelines To Conform To New Marriage Laws," proves that even debates over gay marriage are heading to prison:

Now that same-sex couples can get married in California, state prison officials are trying to figure out what that means for gay inmates.

No prisoners so far have sought to arrange weddings with same-sex partners since the state Supreme Court granted same-sex couples the right to wed as of mid-June, according to Michele Kane, spokeswoman for the California Department of Corrections and Rehabilitation. Nonetheless, department lawyers are drafting guidelines to bring the state's 33 adult prisons into compliance with the court's ruling that same-sex couples must be treated the same as opposite-sex couples under the California Constitution, Kane said.

What they have determined so far is that would mean allowing gay inmates to marry someone on the outside, but not a fellow prisoner — the same rules that apply to straight inmates, according to Kane. "They will have the same marriage rights as other inmates — they will be able to marry non-inmates, but barred from marrying other inmates in prison," she said.

New data on racial disparity in Nevada sentencing

I bet regular readers will not be surprised to read reports here on here on the results of a new study about sentencing in Nevada.  Here are some details from the Las Vegas Sun:

Blacks get more prison time than whites, and women receive lighter sentences than men, according to a university study of the state’s court system released Tuesday. 

The Grant Sawyer Center for Justice Studies at the University of Nevada, Reno, which examined 10,000 felony convictions in Nevada in 2007, found blacks received “significantly higher” minimum and maximum sentences than white defendants. The study also found that blacks got significantly higher minimum and maximum sentences for drug trafficking than white or Asian defendants, as well as significantly higher minimum and maximum sentences for drunken driving.

Blacks also received higher minimum sentences than whites for grand larceny and conspiracy and higher maximum sentences than whites for grand larceny, conspiracy and burglary....

Matthew C. Leone, who headed the center’s study, said it was a preliminary one that must “be viewed with caution” because the figures don’t take into account the criminal history of the defendants. “I’m not going to bet the farm on it,” he told members of the state’s Advisory Commission on the Administration of Justice during a briefing. 

James Austin, a consultant to the commission, said comparisons between sentencing patterns for blacks and whites needed further study. Hispanics, he said, were not singled out and were included with the whites in the sentencing study.

The study found other disparities, including that 18 percent of women convicted of a felony ended up in prison, compared with 37 percent of men.  Men, the study found, received significantly higher minimum and maximum sentences overall.

A set of slide detailing some of the research findings are available at this link.

Senator Biden proposes "Justice Integrity Act" to study federal criminal justice disparities

Perhaps because the bill he introduced last week has gotten no press coverage, I only recently learned about Senator Joe Biden's encouraging efforts to examine racial and ethnic disparities in the federal criminal justice system.  The basics of the bill are explained in this press release from Biden's office, which starts this way:

U.S. Senator Joseph R. Biden, Jr. (D-DE), Chairman of the Senate Judiciary Subcommittee on Crime and Drugs, along with Senators Arlen Specter (R-PA), Benjamin L. Cardin (D-MD) and John F. Kerry (D-MA), today introduced the Justice Integrity Act, legislation designed to increase public confidence in the justice system and address any unwarranted racial and ethnic disparities in the criminal process.  The Justice Integrity Act will establish advisory groups in ten federal districts, under the supervision of the United States Attorney General, to study and determine the extent of racial and ethnic disparity in the various stages of the criminal justice system; make public reports on the results of their findings; and make specific recommendations to help to eliminate racial and ethnic discrimination and unjustified racial and ethnic disparities.

Thanks to a link from the Sentencing Project, the full text of the Biden bill is available here.  Also, a Google search led me to this short letter from the ABA, which expressed strong support for the bill.  The ABA letter starts this way:

[The American Bar Association and its members] express our strong support for the Justice Integrity Act, legislation to examine the cause and extent of racial and ethnic disparities in the criminal justice system and to facilitate the development of proposals for reducing or eliminating racial and ethnic bias where it is found.  We applaud your leadership in introducing the Justice Integrity Act. It provides a thoughtful approach to addressing this issue of great importance to our justice system through supporting the gathering of facts and generation of proposals for reform at the federal district level.

LDF report documents disparties in juve LWOP in Mississippi

This AP article reports on a new report on juve LWOP that came out this past week:

Most juveniles sentenced to life without the possibility of parole in Mississippi are black, a disparity that underscores the need to reform sentencing guidelines, according to a report by the NAACP Legal Defense and Educational Fund. Poverty, lack of education and broken homes are among other traits shared by youngsters sentenced to spend the rest of their lives behind bars, the report said.

Twenty of the 26 people currently serving life without parole after being convicted as juveniles in Mississippi are black, according to the 28-page report released this week.  Blacks make up about 37 percent of Mississippi’s population, but comprise nearly 80 percent of the juvenile offenders serving life sentences.

Research is under way to determine if similar percentages of juvenile minorities are sentenced to life without parole in other states, but the Legal Defense Fund report focused solely on Mississippi, said Holly Thomas, assistant counsel for the organization. “We tried to look at Mississippi as a microcosm of a larger issue,” Thomas told The Associated Press on Wednesday.

The new report by LDF is titled "No Chance to Make it Right: Life Without Parole for Juvenile Offenders in Mississippi," and it can be accessed at this link.  The official LDF webpage provides this summary of the report:

[This] groundbreaking report examining the racial, social, political, and economic circumstances surrounding juvenile life without parole sentencing in Mississippi. LDF's study, the first comprehensive analysis of Mississippi's practice of sentencing teenagers to life without parole, finds that blacks are significantly overrepresented among the youth currently serving such sentences.  In light of this and other troubling findings, LDF calls for a series of reforms including the immediate elimination of life without parole sentences for juveniles.

Some related posts:

• New HRW report assailing juve LWOP in California
• Does Roper suggest young juve LWOP is unconstitutional?
• NYTimes coverage of very young lifers
• Fascinating juve clemency development in Colorado
• Life without parole for juvenile may be cruel, but it is not unusual
• The next issue in sentencing of juveniles?
• California considering eliminating LWOP for juveniles
• PBS program "When Kids Get Life"
• Nebraska working to reform juve LWOP sentences

Troublesome disparity in state sentence for same crimes

This local story from Indiana, headlined "Parents cry foul about sentences: White co-defendant gets no prison time, biracial one gets 8 years," reports on a worrisome example of sentencing disparity. Here are the basics:

A wide gap in the punishments of two 19-year-olds who pleaded guilty to the same crime under similar circumstances has, in the minds of some residents, brought the specter of racial discrimination into a St. Joseph County courtroom.

David Opfer and Justin Brooks both pleaded guilty to one count of arson in connection with a fire at Park Jefferson Apartments in April 2007 that caused minimal damage but endangered the lives of residents there. Neither of them had a criminal background.  On Wednesday, a judge placed Opfer, who is white, on probation, while a different judge had sentenced Brooks, who is biracial, to serve eight years in prison.

"I can come to no other conclusion," Brooks' father, John Brooks, told The Tribune by phone Friday from Maryland.  "I don't like to play the race card, don't get me wrong," said John Brooks, who is black and retired from the U.S. Army. "But how can one get such a drastic difference in sentencings?"...

Indiana law gives judges flexibility in sentencing, and the plea agreement Opfer and Brooks signed with prosecutors gave the judges ample discretion in sentencing.

A prison celebration of Mothers' Day

This AP article, headlined "Nursery programs allow imprisoned moms, newborns to bond," is fitting for the day. Here is an excerpt:

New York has had prison nurseries for more than a century; Washington, Ohio, California and Nebraska started ones in recent years, and West Virginia is preparing to launch one, too. The programs come at a time when the nation’s female inmate population is rising.

The Bureau of Justice Statistics shows the number of women in prisons and jails jumped from more than 163,000 in 2000 to nearly 210,000 in mid-2006, fueled largely by an increase in drug convictions that carry mandatory sentences. Many of those inmates are mothers who experts say benefit from staying with their children, even if it’s behind bars.

The Ohio Reformatory for Women in Marysville, whose nursery program Indiana modeled, has seen 14 of its 128 participants re-offend, an 11 percent recidivism rate compared with the institution’s rate among all inmates of about 30 percent, spokeswoman Elizabeth Wright said. New York also has seen a dropoff, said Linda Foglia, spokeswoman for that state’s Department of Correctional Services.

Indiana hopes for similar results with its program, funded through a $122,000 grant from the U.S. Department of Health and Human Services. The Wee Ones Nursery at the 136-year-old Women’s Prison is open to up to 10 imprisoned mothers who are the legal guardians of their children, have never been convicted of violent crimes, and have less than 18 months left on their sentences.

The nursery staff includes a pediatrician and a nurse. Inmates who serve as nannies must have nonviolent offenses and reading levels of eighth grade or higher; they also must complete a parenting class. The mothers receive courses on postpartum care, child development, shaken baby syndrome and other topics. “We hope that we’ll continue to make the family the unit that it should be and strengthen those that are going back out into the community,” prison Superintendent Zettie Cotton said.