Sentencing Law and Policy

Are "pink-collar" crimes distinctive calling for distinct sentencing policies and practices?

The question in the title of this post is prompted by this intriguing new commentary by Kelly Richmond Pope at The Daily Beast, which previews a high-profile white-collar federal sentencing scheduled for today in Illinois. The piece is headlined, "Most Notorious ‘Pink-Collar’ Criminal to Be Sentenced for $53 Million Theft: Crundwell may be the most brazen of recent female embezzlers, but she’s not alone, as more and more women achieve positions of power, as well as access to funds."  Here are excerpts (with a few links preserved):

On Valentine’s Day, Rita Crundwell will be sentenced for her role in the largest municipal fraud in U.S. history.   Once known as one of the leading American quarter horse breeders, Crundwell embezzled more than $53 million from the town of Dixon, Illinois, which has a population of 16,000 and an annual budget between $6 and $8 million.  Crundwell, who was Dixon’s comptroller, carried on her scheme for 20 years, but it was discovered only when a Dixon city clerk opened a letter revealing that Crundwell had set up a secret bank account and was embezzling city monies to finance her lavish lifestyle.

While Dixon was cutting jobs, battling a budget deficit, and struggling to complete capital improvement projects, Crundwell was throwing epic birthday parties, building ranches and traveling the world.  According to court records, she stole an average of more than $37,000 for every day she worked for Dixon.

Some people are shocked to hear that a woman was at the center of such a vast scheme, but women in fact tend to be pretty savvy embezzlers. In fact, with more women taking on leadership positions in corporate America, an unexpected phenomenon has begun to emerge: pink-collar crime.

It’s never been a popular topic. In 1975 Rutgers criminologist Freda Adler wrote a groundbreaking yet controversial book, Sisters in Crime: The Rise of the New Female Criminal, that shed light on research analyzing the criminality of women. But in the era of the Equal Rights Amendment, Adler took a ton of heat, as critics believed her book undermined the feminist movement and distorted the facts about the female crime rate. But was Adler wrong?  I would argue she wasn’t.

Pink-collar crime is unquestionably on the ascent.  The term generally refers to the rise of women involved in white-collar crime, but it’s also a theory introduced by criminology professor Kathleen Daly during the 1980s to describe the types of embezzlement crimes typically committed by females.  Based on my research as a forensic accountant and fraud investigator, I’ve watched this trend swell over the years.

While perhaps no pink-col lar crime has been as scandalous as Crundwell’s, she is far from alone. In fact, according to the 2011 Marquet Report on Embezzlement, women are more likely to embezzle than men.  Based on a review of 473 major embezzlement cases in the United States in 2011 alone, nearly two thirds of the cases involved female perpetrators. Among the top 10 cases, five involved “pink-collar criminals” who pocketed anywhere from $4.8 to $16 million.

Before Crundwell, the largest municipal fraud was also an embezzlement case committed by a woman named Harriette Walters.  Walters was convicted of embezzling $48 million over 20 years in her role as a tax-assessment manager for the District of Columbia.  She is currently serving a 16 1/2-year sentence in a West Virginia federal prison.

So why is women’s stealing on the rise?  To help answer this question, I spoke with Kelly Paxton, a licensed private investigator and president of Denver-based Financial Caseworks LLC.  Paxton told me that the increase is due to both greater “perceived needs,” such as material goods, as well as more women being in positions where they have access to funds.

That observation is supported by my conversation with Diann Cattani, whom I interviewed for my documentary “Crossing the Line: Ordinary People Committing Extraordinary Crimes.”  Cattani, who served 18 months in prison for stealing $500,000, felt the need to provide more material possessions for her family in hopes that it would mend some personal issues within her marriage.  But the stigma of being a convicted felon ended up destroying her marriage, and continues to challenge both her personal and professional lives.

Maintaining a lavish lifestyle is a commonly cited rationale for committing white- or pink-collar crimes.  For Crundwell, it appeared to be her top priority. According to court documents, Crundwell first embezzled $181,000 in 1991, which she used to purchase a Suncruiser Pontoon boat and $3,000 worth of diamonds. The theft continued in 1992, when she pocketed $121,000, more than two thirds of which she used to pay off her credit card. In 1999 Crundwell pocketed more than $1 million, using $125,000 to purchase a horse. Even as the recession set in, Crundwell continued to use Dixon as her personal piggy bank, embezzling millions of dollars more....

In 1990 Freda Adler told the Wall Street Journal, "as more women are out in the mainstream, the more mainstream activities they are going to be involved in." We can only imagine what she would have to say about Rita Crundwell.

Recent related post on Crundwell case:

• Feds seeking upward departure for local comptroller engaged in long-time fraud

UPDATE:  The headline of this Chicago Tribune piece reports on the sentencing outcome today for Rita Crundwell: "Ex-Dixon comptroller gets 19.5 years for $54 million fraud".

Guest post on Amish sentencing: "A Travesty in Cleveland"

Experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) attended this past Friday's high-profile federal sentencing of the Amish defendants involved in the high-profile beard-cutting attacks in northern Ohio.  I am pleased to be able to now reprint his lengthy guest-post on the sentencing proceedings:

Living in northeast Ohio, I have encountered Amish on several occasions, usually on the road behind their horse-drawn buggies, but never in a courtroom.  Yesterday I had the opportunity to sit through perhaps the most surreal sentencing I will ever encounter. Reminiscent of the movie “Witness,” the followers of Samuel Mullet, Jr. sat on the right side, with the women wearing kerchiefs, while victims and their supporters sat on the left with the women wearing bonnets — the only apparent distinction between the two groups. The men, all in similar attire, had large, solid hands, built up from years of farming, some with flecks of mud on their clothing.  They sat quiet, subdued, and unlike the “English” present, did not speak among themselves.

These obviously were simple, passive people, involved in a serious and unfortunate dispute.  A dispute that resulted in shameful and abusive conduct by Mullet and some of his followers against other Amish: beard and hair cutting, which held religious symbolism. This conduct, while criminal, was not tantamount to the seriousness reflected in the severity of the sentences handed down.   That Mullet received a 15-year sentence for ordering the assaults, and that his remaining followers received from a year-and-a-day to 7 years, which will result in effectively orphaning a few dozen children, was the most surreal part of yesterday’s sentencing.

Given the severity of the sentences the government (incredulously sought) — in Mullet’s case, life — it was surprising that statistics were not raised during the hearing.

First, 18 U.S.C. s. 249 offenses are rarely prosecuted, and despite their high-profile nature, hate crimes generally are rarely sentenced.  While the FBI reports that in 2011 there were 6,222 hate crime incidents, per the most recent U.S. Sentencing Commission datafile, there were exactly two cases involving a 249 charge in 2011, and the hate crime enhancement at 3A1.1 was applied a mere 35 times.  Likewise, section 2H1.1 of the guidelines under which Mullet and his co-defendants were sentenced was applied only 47 times last year.  Section 2A4.1, which governs kidnapping and was the ultimate guideline the court utilized for sentencing, was applied in slightly more cases: 108 out of over 86,000 cases.  In light of recent and widespread criticism regarding the guidelines lacking empirical support, it would seem that offenses rarely prosecuted and guidelines rarely utilized in such unique circumstances as these would render any sentencing range not only questionable, but plainly inapplicable.

Second, while at a considerable variance from the advisory guideline sentence of life, Mullet’s sentence still is nearly equivalent to the median sentence for murder (189 months), and far, far greater than those for manslaughter (37 months), sexual abuse (87 months), assault (27 months) and arson (50 months).  While it is close to the median sentence for kidnapping (184 months), given that this was a kidnapping in a very technical sense (much as this was only a technical hate crime), that should have given the Court considerable pause before imposing such a draconian sentence.  Is Mullet’s offense really the equivalent of a murder and more serious than manslaughter?

Finally, Mullet is 67.  A 15-year sentence still effectively is a life sentence for him.  With an already over-crowded federal prison system and growing, Mullet’s time will be even more onerous than most in light of his age and most glaringly, his cultural and religious background, will make him highly susceptible to abuse.  Further, his age will impose additional financial burdens on the BOP, with some estimates as high as $90,000 per year. Is this an appropriate use of the public fisc?

This was an awful case from every perspective.  Why the federal government thought it was appropriate to bring criminal charges under truly unique circumstances defies explanation.  Clearly, the courts of Ohio could have (and should have) addressed this matter.  The sentences handed down merely have compounded the travesty of this prosecution.  While Judge Polster did an admirable job in detailing his reasoning — especially noting the irony of the Amish defendants trampling the very Constitution that makes their lifestyle possible — but for the absurdity of a federal sentencing system that has for years encouraged the judiciary to hand out multi-year sentences as if they are candy, one wonders how Judge Polster would have sentenced unencumbered by a sentencing regime that clearly did not contemplate the facts of this case and has otherwise run amok.

The federal government not only chose to prosecute these assaults as if they were kidnappings but hate crimes.  While technically hate crimes given the religious motivation for the assaults, the assaults, which left no permanent physical injuries, certainly were nowhere of the kind the statute was intended to address, while the punishment, ironically, was.  Indeed, the hate crime statute upon which the defendants’ convictions rested — 18 U.S.C. s. 249 — was enacted as part of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009.  Both Shepard and Byrd were the victims of the most atrocious and violent hate crimes in recent memory — Shepard tortured and left to die tied to a fence in Wyoming because of his sexual orientation, and Byrd gruesomely dragged to his death and decapitated behind a pick-up because of his race.  Sentencing these Amish assaults as if they were equivalent to the offenses suffered by Shepard and Byrd is an affront to their memories.  Hopefully the Sixth Circuit will rectify this manifest injustice.

Related posts:

• Ohio Amish hair-cutting incidents now a federal hate crimes sentencing matter
• Stark extremes for forthcoming debate over federal sentencing of Amish beard-cutters
• Interesting defense arguments for sentencing leniency in Amish beard-cutting case
• Feds request LWOP for Samuel Mullet Sr., leader of Amish beard-cutting gang
• Are tough sentences sought in Amish beard-cutting case part of a DOJ "war on religion"?
• "Amish beard-cutting ringleader gets 15 years"

"Amish beard-cutting ringleader gets 15 years"

The title of this post is the headline of this AP report on a high-profile federal sentencing which took place in northern Ohio today.  Here are the basics:

The ringleader in hair- and beard-cutting attacks on fellow Amish in Ohio was sentenced today to 15 years in prison. Before his sentencing, Samuel Mullet Sr. told Judge Dan Aaron Polster in Cleveland that he had been blamed for running a cult and was ready to take the punishment. Polster also sentenced 15 other Amish to prison terms ranging from one to seven years.

Mullet, his ankles in chains and a white beard down to mid-chest, said if his community is seen as a cult, "Then I'm going to take the punishment for everybody."

With relatives of victims and his family sitting on opposite sides of the public gallery, Mullet said he has lived his life trying to help others. "That's been my goal all my life," Mullet, 67, said to a hushed courtroom, with his fellow defendants and their attorneys sitting at four defense tables and filling the jury box. "I'm not going to be here much longer," said Mullet, who didn't elaborate on any health issues.

Mullet and his family deny his community is a cult. The government asked for a life sentence for Mullet. The defense asked for two years or less....

The defendants were charged with a hate crime because prosecutors believe religious differences brought about the attacks. Nine of 10 men who were convicted have been locked up awaiting sentencing. The six women, who all have children, have been free on bond.

In a rare interview last week in Bergholz at the sprawling Mullet farm amid rolling hills in eastern Ohio, Mullet's unmarried 19-year-old grandson, Edward Mast, discussed the family's attitude. He said they are steadfast in the belief that the attacks didn't rise to the level of a hate crime. "The beard, what it stands for me, what I know about it, once you're married, you just grow a beard. That's just the way the Amish is," Mast said. As for the victims, he added, "They got their beard back again, so what's the big deal about it?"

Arlene Miller, 48, of Carrollton, whose husband, an Amish bishop, was among the victims, thinks Mullet deserves a tough sentence and the others should get less time if they get cult deprogramming counseling. "It's a cult," she said. "Their minds were programmed in the wrong way by Sam Mullet, so we feel like these people are very deceived and they are actually victims of Sam Mullet."

Related posts:

• Ohio Amish hair-cutting incidents now a federal hate crimes sentencing matter
• Stark extremes for forthcoming debate over federal sentencing of Amish beard-cutters
• Interesting defense arguments for sentencing leniency in Amish beard-cutting case
• Feds request LWOP for Samuel Mullet Sr., leader of Amish beard-cutting gang
• Are tough sentences sought in Amish beard-cutting case part of a DOJ "war on religion"?

Are tough sentences sought in Amish beard-cutting case part of a DOJ "war on religion"?

The provocative question in the title of this post is prompted by this recent post by Bill Otis over at Crime & Consequences under the provocative heading "DOJ Goes Stark Raving Mad." Here are excerpts of Bill's perspective on a high-profile federal sentencing case:

Regular readers know that I'm no fan of wimpy sentencing, and that I've had it with the every-excuse-in-the-book style of defense lawyering.  But there are limits.  DOJ went well beyond them when it sought a life sentence for an Amish bishop convicted of conspiracy to forcibly cut beards....

Bishop Samuel Mullett is not Mr. Nicey, according to the government's sentencing memo. The story reports that, in addition to leading the beard-cutting conspiracy for which he was convicted, prosecutors "characterized Mullet as an iron-fisted bishop who exerted total control over his flock: He censored his followers' mail, had sex with married women under the guise of marital counseling, endorsed bizarre punishments such as confinement in chicken coops and spankings, and laughed at the attacks, which were driven by a crusade to punish those who spurned his teachings."

Those are bad things, and if they are true, they are properly taken into account in federal sentencing....  But life? Is this guy Ted Kaczynski?  Zacarias Moussaoui?  Not exactly.  How does DOJ wind up recommending life for the ring leader in a beard-cutting conspiracy? They might just be smoking weed, but I suspect something else, less groovy and more ominous, is at work.

This seems to be a part of the present administration's snarling hostility to religion. And one must admit the defendant makes a politically apt target.  This "bishop" sounds like a first-class thug, and he heads a splinter group in what is itself a very small, conservative, insular religion that must seem to Eric Holder to be ripe for the pickin'.  But this is taking liberal detestation of religion to an absurd extreme.  What happened to government neutrality?  Could a sentencing recommendation this far off the wall possibly have come about without at least an element of anti-religious bigotry?

What we have here is a 67 year-old man with no prior record (so far as I know or is reported in the story) who organized, and then (apparently) laughed at, beard cuttings.  It's only when viewed in the funhouse mirror of Holder's Very Politically Correct DOJ that this could be seen as an LWOP offense.

Does the "bishop" deserve jailtime?  You bet, and I hope he gets it.  But life in the slammer? DOJ's action would be a joke if, on account of its menacing, if only shadowy, political and cultural motivations, it weren't so dangerous.

I find Bill's perspective here quite stunning (and telling) given Bill's oft-stated affinity for making the federal guidelines mandatory again and his advocacy for long-terms of incarceration to incapacitate dangerous offenders.  Let me explain (using some of Bill's own words):

1. Bill asks "How does DOJ wind up recommending life for the ring leader in a beard-cutting conspiracy?"; he asserts that only "in the funhouse mirror of Holder's Very Politically Correct DOJ that this could be seen as an LWOP offense." Actually, DOJ is only recommending a within-guideline sentence for Samuel Mullet Sr. (and it is recommending well-below guideline sentences for all the other Amish defendants).  In other words, it is only the crazy "funhouse mirror" of unduly severe federal sentencing guidelines (and the continued affinity for these guidelines stressed by folks like Bill) which makes this crime appear to be an LWOP offense.

2. As referenced in the government's sentencing memo, many other members of the Amish community have written to prosecutors to stress that Samuel Mullet Sr. is a religious terrorist comparable to other violent zealots quick and eager to do great harm to anyone who does not follow his edicts or share his views.   My own disaffinity for severe sentences was tempered as I read these letters from members of the Amish community; I came to think that showing real respect for the Amish religion may require a severe sentencing term for Mullet and his most radical followers.

3. The government's sentencing memo and related materials certainly indicate (a) that the Amish community has been much safer since Mullet's arrest, and (b) that Mullet has shown no remorse and may well return to his terrorizing ways if and whenever released from custody.  Though I am not a big fan of using vague concerns about recidivism to justify longer terms of imprisonment, in this case the risk of recidivism seems quite significant and the future crimes would surely be directed toward the very Amish community whom Bill thinks DOJ is here disrespecting.

I could go on and on, but I want to give Bill and chance to respond in the comments and also allow others to share their perspectives on this fascinating case.  (I should note that I share the view that an LWOP sentence here is overkill, though I see this as an overkill prompted by dysfunctional federal sentencing guidelines, not a religion-hating DOJ.  And though Bill never indicates what kind of prison term would be fitting in his eyes, I think something in the neighborhood to 10 years may be about right to achieve all the diverse and challenging federal sentencing purposes implicated in this case.)

Whatever else one thinks about these issues, this Amish beard-cutting case surely provides yet another example of the many ways in which difficult sentencing cases can starkly reveal (a) how problematic any rigid system of sentencing guidelines can often be, and (b) what values are at the core of various persons' diverse sentencing perspectives.

Related related posts:

• Ohio Amish hair-cutting incidents now a federal hate crimes sentencing matter
• Stark extremes for forthcoming debate over federal sentencing of Amish beard-cutters
• Interesting defense arguments for sentencing leniency in Amish beard-cutting case
• Feds request LWOP for Samuel Mullet Sr., leader of Amish beard-cutting gang

Feds request LWOP for Samuel Mullet Sr., leader of Amish beard-cutting gang

As reported in this local article, "Federal prosecutors today urged a judge to sentence Amish bishop Samuel Mullet to life in prison for coordinating a series of beard-cutting attacks on victims who shunned the bishop and his teachings." Here is more on the filing of the latest papers in a high-profile federal case in which sentencing is scheduled for the end of this week:

"Plainly stated, Samuel Mullet Sr. should be sentenced to a life term of imprisonment because, but for Samuel Mullet Sr., it is highly unlikely any of his co-defendants would have engaged in violent and obstructive behavior," wrote assistant U.S. attorneys Bridget Brennan and Kristy Parker.

"Samuel Mullet Sr.'s control over the Bergholz community was -- and is -- absolute.  He was able to get men to surrender their wives to him. Wives would be forced to leave their small children and live in Mullet Sr.'s home so that they could be available to him."

The 25-page document was filed just days before U.S. District Judge Dan Aaron Polster sentences the 67-year-old Mullet and 15 family members and followers Friday.  Brennan and Parker said Mullet agreed with and openly encouraged a campaign of terror....

The document offers a sharp contrast to one filed by defense attorney Edward Bryan, who urged Polster to sentence Mullet to a prison term of two years or less, based on the minimal harm to the victims. Mullet did not participate in the five hair and beard shearings in 2011, but a federal jury last year convicted him of hate crimes for knowing about the assaults and failing to stop them from occurring.

Witnesses likened the bishop's ultraconservative Amish sect in Jefferson County, 100 miles southeast of Cleveland, to a cult that had turned its back on the religion's nonviolent traditions. Last fall's hate crimes trial offered a rare glimpse into Ohio's reclusive and peaceful Amish community. The proceeding was an unprecedented application of a landmark 2009 federal law that expanded government powers to prosecute hate crimes and attracted national and international attention.

Prosecutors have characterized Mullet as an iron-fisted bishop who exerted total control over his flock: He censored his followers' mail, had sex with married women under the guise of marital counseling, endorsed bizarre punishments such as confinement in chicken coops and spankings, and laughed at the attacks, which were driven by a crusade to punish those who spurned his teachings, prosecutors said.

Related posts:

• Ohio Amish hair-cutting incidents now a federal hate crimes sentencing matter
• Stark extremes for forthcoming debate over federal sentencing of Amish beard-cutters
• Interesting defense arguments for sentencing leniency in Amish beard-cutting case

US District Judge Gleeson assails drug guidelines in another potent opinon

A number of helpful readers made sure I did not miss the latest doozy of an opinion issued by US District Judge John Gleeson in United States v. Diaz, No. 11-CR-00821-2 (E.D.N.Y. Jan. 28, 2013) (available for download below).  The opinion is a must-read for various reasons — one reader described it to me as an "instant classic" — and these opening points hint at the opinion's coverage:

Last year in United States v. Dossie, I wrote about how the mandatory minimum sentences in drug trafficking cases distort the sentencing process and mandate unjust sentences. This case illustrates a separate but related defect in our federal sentencing regime....

Diaz will be sentenced in a few weeks, and when that happens I will carefully consider all the factors set forth in 18 U.S.C. § 3553(a) except one — the length of imprisonment recommended by the United States Sentencing Commission’s Guidelines Manual. Though I will not ignore Diaz’s Guidelines range, I will place almost no weight on it because of my fundamental policy disagreement with the offense guideline that produces it. In fairness to the government, I write here to explain my belief that the offense guideline for heroin, cocaine, and crack offenses (“drug trafficking offenses”) is deeply and structurally flawed. As a result, it produces ranges that are excessively severe across a broad range of cases, including this one.

The flaw is simply stated: the Guidelines ranges for drug trafficking offenses are not based on empirical data, Commission expertise, or the actual culpability of defendants. If they were, they would be much less severe, and judges would respect them more. Instead, they are driven by drug type and quantity, which are poor proxies for culpability.

These passages from the body of the lengthy Diaz opinion reveal just some of its many flourishes:

If the Commission wants greater adherence to the Guidelines, as it should, it needs to get better at fixing broken offense guidelines.  The drug trafficking offense guideline was born broken.  Many judges will not respect it because as long as the sentences it produces are linked to the ADAA’s mandatory minimums, they will be too severe.  Indeed, as discussed further below, for almost two decades the nation’s judges have been telling the Commission to de-link the drug trafficking offense guideline from those harsh mandatory minimums and to reduce the sentencing ranges.  The Commission should listen and act.  It should use its resources, knowledge, and expertise to fashion fair sentencing ranges for drug trafficking offenses.  That process will take time.  In the meantime, because real people, families, and communities are harmed by the current ranges, it should immediately lower them by a third....

Let those who advocate for longer prison terms, and even a return to the dark days of mandatory Guidelines, go ahead and make their case.  The debate is good for the health of our federal criminal justice system.  But the suggestion that federal sentences should become more severe in the name of racial equality is preposterous.  That case has emphatically not been made, and the Commission’s repeated suggestion that it has insults the entire judiciary and demeans the Commission itself.  If it does nothing else, the Commission should take affirmative steps to remove the race issue, which it unwisely inserted into the discussion of federal sentencing policy, from the debate....

The Commission should use its resources, knowledge, and expertise to fashion fair sentencing ranges for drug trafficking offenses.  If it does, those ranges will be substantially lower than the ranges produced by the current offense guideline.  The deep, easily traceable structural flaw in the current drug trafficking offense guideline produces advisory ranges that are greater than necessary to comply with the purposes of sentencing.  We must never lose sight of the fact that real people are at the receiving end of these sentences.  Incarceration is often necessary, but the unnecessarily punitive extra months and years the drug trafficking offense guideline advises us to dish out matter: children grow up; loved ones drift away; employment opportunities fade; parents die.

Download United States v. Ysidro Diaz

"David Baldus and the Legacy of McCleskey v. Kemp"

The title of this post is the title of this article by Samuel Gross, which I just came across via SSRN.  Here is the abstract:

In McCleskey v. Kemp, 481 U.S. 279 (1987), the Supreme Court rejected a challenge to racial discrimination in the use of the death penalty.  That challenge was based on a landmark study of race and capital sentencing in the state of Georgia by the late Professor David Baldus and colleagues.  The legal holding in McCleskey stands, despite the fact that the author of the opinion, Justice Lewis Powell, later renounced it in retirement.  It is sometimes described as the Dred Scott decision of the twentieth century.  But on the empirical question that was as stake in McCleskey, Baldus has prevailed.  Neither the Court in McCleskey, nor any justice at the time or since, has disputed his factual conclusion that many defendants in Georgia were sentenced to death because of their race, and especially because of the race of the victims of the crimes for which they were convicted.  This was a remarkable achievement.  It fundamentally changed our understanding of the role of race in criminal justice in the United States.

"African Americans suffer from high rates of incarceration and crime. Here’s how to drastically reduce both."

The title of this post is the provocative subheading of this lengthy new feature article in the latest issue of Washington Monthy. Authored by Professor Mark Kleiman, the article's main headline is "A New Role for Parole," and here is how the must-read piece starts and ends:

American crime rates, especially violent crime rates, and American incarceration rates are twin national disgraces.  We have five times the homicide rate and five times the incarceration rate of other economically advanced countries.  Both crime and incarceration are appallingly concentrated among poor African Americans; in the same neighborhoods where homicide is the leading cause of death for young men, more than half of those men will do prison time before they turn thirty.

The concentration of incarceration by race is by now a well-worn topic.  Some activists and scholars allege a concerted effort to replace older forms of racial oppression with the penitentiary.  The concentration of incarceration by social class is less well known, but no less worrisome.

What that critique leaves out is the concentration of crime.  Violent crime has fallen 67 percent from its peak in the early 1980s and early ’90s, but remains more than twice as common as it was before the great crime wave of the ’60s.  And crime is just as concentrated as incarceration: blacks are about six times as likely as whites to be imprisoned, and also about six times as likely to be murdered.  Almost all of those homicides are intraracial.  The Crips and the Bloods killed more African Americans in the last quarter of the twentieth century than the Ku Klux Klan killed in its entire history. Homicide rates have fallen sharply over the past two decades, but that may have more to do with improved shock-trauma medicine than with reduced criminality; the rate of gunshot wounds has not fallen.

The actual bloodshed may not be the worst of it.  The costs of crime are both enormous and underappreciated, because they consist primarily not of the direct losses to victims of crimes but of the costs people and businesses incur, and inflict on one another, in attempting to avoid victimization.  Every store that moves away from a poor neighborhood for fear of robbery takes with it both services and jobs, leaving the neighborhood that much poorer and more socially isolated....

A sensible crime-control agenda would satisfy neither the conservative impulse to punish as many people as possible as severely as possible nor the liberal impulse to substitute services for coercion and social reform for law enforcement.  Liberals will have to swallow the idea that improved coercion is as necessary as improved conditions. Conservatives will have to swallow the ideas that punishment is a cost and not a benefit and that the measure of the efficacy of a threat is how often it does not need to be carried out....

Criminal justice institutions need to give crime control priority over institutional comfort and habit. Public and nonprofit agencies that do not have crime control in their mission statements need to acknowledge that they are nonetheless in the crime-control business, whenever their actions and omissions can make the crime problem better or worse.

The bad news is that current policies leave us with unnecessarily and unforgivably high levels of both crime and incarceration. The good news is that we now know how to do better.

This same issue also has this lengthy piece by Professor Glenn Loury with this headline and subheading: "Prison’s Dilemma: Even if every convict were rightly sentenced, America’s vast, racially skewed incarceration system would still be morally indefensible."

"Barack the Unmerciful: Obama's amazingly stingy clemency record"

The title of this post is the headline of this new commentary by Jacob Sollum over at Reason.com. Here are excerpts:

Will Barack Obama go down in history as our least merciful president? With less than two weeks to go in his first term, this reputedly progressive and enlightened man has a strong shot at winning that dubious distinction.

December, a traditional season for presidential clemency, has come and gone, and still Obama has granted just one commutation (which shortens a prisoner’s sentence) and 22 pardons (which clear people’s records, typically after they've completed their sentences). Barring a last-minute flurry of clemency actions, his first-term record looks weaker than those of all but a few previous presidents.

Which of Obama’s predecessors managed to make less use of the clemency power during their first terms? According to numbers compiled by P.S. Ruckman Jr., a professor of political science at Rock Valley College in Rockville, Illinois, just three: George Washington, who probably did not have many clemency petitions to address during the first few years of the nation’s existence; William Henry Harrison, who died of pneumonia a month after taking office; and James Garfield, who was shot four months into his presidency and died that September.

With the exception of Washington's first term, then, Obama so far has been stingier with pardons and commutations than any other president, especially when you take into account the growth of the federal penal system during the last century, the elimination of parole, the proliferation of mandatory minimums, and the concomitant increase in petitions. This is a remarkable development for a man who proclaims that "life is all about second chances" and who has repeatedly described our criminal justice system as excessively harsh....

The one significant way in which Obama followed through on this rhetoric after being elected was by supporting 2010 legislation that shrank the irrational sentencing gap between crack cocaine and cocaine powder (although there was not much political risk in doing so, since the bill passed Congress almost unanimously). But the Fair Sentencing Act did not apply retroactively, and Obama has used commutation to help just one of the thousands of crack offenders serving mandatory minimums that nearly everyone now admits are unjust.

More generally, Obama has granted clemency petitions at a lower rate than all of his recent predecessors. The odds of winning a pardon from Obama so far are 1 in 59, compared to 1 in 2 under Richard Nixon, 1 in 3 under Gerald Ford and Jimmy Carter, 1 in 5 under Ronald Reagan, 1 in 10 under George H.W. Bush, 1 in 5 under Bill Clinton, and 1 in 13 under George W. Bush, per Ruckman's calculations. The odds for commutation are even longer: 1 in 6,631 under Obama, compared to probabilities under the seven preceding presidents ranging from 1 in 15 (Nixon) to 1 in 779 (Bush II).

As Obama embarks upon a second term, he deserves credit for this amazing accomplishment: He has made Richard Nixon look like a softie.

Latest USSC data on retroactivity of crack guidelines reduced by FSA

I just noticed on the US Sentencing Commission's website this new data report on "Fair Sentencing Act Amendment Retroactivity."  The report is described this way: "This report provides data concerning the retroactive application of the 2011 amendment to the federal sentencing guidelines implementing the Fair Sentencing Act of 2010."

Based on the information reflected in Table 8 of this data report and elsewhere, it appears that nearly 6600 defendants received, on average, a 29-month reduction in their crack sentences thanks to the new FSA crack guidelines being made retroactive.  That adds up to nearly 16,000 cumulative years of federal imprisonment eliminated and an economic saving to federal taxpayers of approximately a half-billion dollars (based on a conservative estimate of a taxpayer cost of roughly $30,000 per prisoner for each year of federal incarceration). 

Notably, according to Table 5 of this data report, more than 85% of those benefiting from reduced crack sentences are black prisons.  The historically racialized reality of federal crack prosecutions is thus again on display as one reviews this data. 

Here is to hoping, especially during the holiday season, that all the persons who benefited from the new reduced FSA crack sentences will turn their lives around.  If these defendants who received reduced sentences find ways to become productive (and tax-paying) citizens, the benefits to society will profoundly transcend the saved incarceration costs.

Latest OSJCL issue with "McClesky at 25" symposium now available on-line

As noted in this prior prior post, the Fall 2012 issue of the Ohio State Journal of Criminal Law has a lead symposium focused on "McClesky at 25."  The whole issue is now available on line at this link, and here are all the articles in the symposium:

McClesky at 25 OSJCL Symposium Articles:

• Douglas A. Berman, McCleskey at 25: Reexamining the “Fear of Too Much Justice" , 10 Ohio St. J. Crim. L. 1 (2012).

• Scott E. Sundby,  The Loss of Constitutional Faith: McCleskey v. Kemp and the Dark Side of Procedure, 10 Ohio St. J. Crim. L. 5 (2012).

• John H. Blume & Sherri Lynn Johnson, Unholy Parallels between McCleskey v. Kemp and Plessy v. Ferguson: Why McCleskey (Still) Matters, 10 Ohio St. J. Crim. L. 37 (2012).

• G. Ben Cohen, McCleskey’s Omission: The Racial Geography of Retribution, 10 Ohio St. J. Crim. L. 65 (2012).

• Robert P. Mosteller, Responding to McCleskey and Batson: The North Carolina Racial Justice Act Confronts Racial Peremptory Challenges in Death Cases, 10 Ohio St. J. Crim. L. 103 (2012).

• Kent Scheidegger, Rebutting the Myths About Race and the Death Penalty, 10 Ohio St. J. Crim. L. 147 (2012).

New ruling under NC Racial Justice Act takes three more defendants off death row

As reported in this local article, which is headlined "N.C. judge finds racial bias in 3 death penalty cases," there has been another notable development in the saga of North Carolina's Racial Justice Act. Here are the details:

A Cumberland County judge has sentenced three death row inmates to life in prison without possibility for parole after finding that racial discrimination in jury selection played a key role in securing their death sentences.

Judge Gregory Weeks issued the ruling on Thursday for Tilmon Golphin, Christina Walters and Quintel Augustine after the three challenged their sentences under the 2009 Racial Justice Act.

Walters was convicted of killing two women in a gang initiation ritual. Golphin was convicted of murdering two law enforcement officers at a traffic stop. Augustine was convicted of killing a Fayetteville police officer.

The judge's ruling means that sentences for four death row inmates now have been changed to lifetime prison sentences with no possibility for parole. In April, Weeks converted the death sentence for Marcus Reymond Robinson, the first of more than 150 death row inmates seeking relief under the law.

In Robinson's case, Weeks issued a strongly worded order, saying hearings had shown evidence that the jury selection process in capital cases, both statewide and locally, had systematically excluded blacks.

Then this summer, the legislature made sweeping changes to the Racial Justice Act, hoping to limit the use of statistics to the judicial district in which the inmate's case was tried. The governor vetoed the overhauled act, but the legislature overrode her veto.

The legislature, in its overhaul of the Racial Justice Act, said the changes to the law did not apply to Robinson's case since it was ruled on before the changes. But death penalty critics and advocates of using statistics in bias claims have argued that it would be unfair for all the death row inmates who filed bias claims under the 2009 law to not have a chance to argue their cases under that law....

Ken Rose, a senior staff attorney at the Center for Death Penalty Litigation, said Thursday that he expected challenges of Weeks' decisions.... The three inmates whose death sentences were abandoned filed their challenges in 2010 before the legislative overhaul of the Racial Justice Act. Critics of the changes and advocates for them agree that Weeks' ruling could lead to lawsuits that take years to settle.

"Marijuana: A Winning GOP Issue?" ... and a lost 2012 Romney opportunity

The title of this post is drawn from the headline of this notable recent commentary by Nate Cohn at The New Republic, which echoes some points that should be familiar to regular readers of this blog.  Here are excerpts from the commentary:

Young voters might be pro-Obama, but they're even more pro-marijuana.  While 60 percent of 18-29 year olds supported the president's reelection, the CBS News and Quinnipiac polls, as well as the Washington and Colorado exit polls, show an impressive 65-70 percent of voters under age 30 supporting marijuana legalization.  The rise of the millennial generation — not persuasion of older voters — is primarily responsible for marijuana’s growing strength in national polls, with 65 to 70 percent of seniors remaining opposed to marijuana legalization.  With generational change already responsible for the GOP's national struggles, the party could really use a break from cultural questions that pit its elderly base against millennials.

Fortunately for Republicans, they actually have a rare opportunity here to seize the middle ground and appeal to younger voters.  While the Republican rank-and-file still oppose outright marijuana legalization, the issue could fit within the party's ostensible state-rights philosophy.  GOP voters seem to agree.  CBS News found that 65 percent of Republicans support allowing state governments to determine the legality of marijuana, compared to just 29 percent who believed the federal government should decide.  Rand Paul has already suggested moderation on marijuana legalization as a helpful step toward coping with generational change.

But Republican advocates of marijuana moderation don't have an easy task.  Just because GOP voters might accept the state-rights frame provided by a poll question doesn’t mean that the frame would prevail in a debate.  The exit polls in Colorado and Washington, as well as recent Quinnipiac polls, suggest that about 65-70 percent of conservatives, white evangelical Christians, and Republicans are opposed to marijuana legalization.  If the Obama administration allowed Colorado and Washington to violate federal law, moderation might become even more difficult as conservative media launch a crusade against a lawless administration....

If Republicans don’t seize the middle ground on marijuana legalization, Democrats will eventually use the issue to their advantage.  Not only will Democratic primary voters demand it, they will have a lot to gain.  As more younger, pro-marijuana voters enter the electorate and replace their elders, support for marijuana legalization will continue to increase, absent intervening events that reshape public opinion, like a disastrous ending to the experiments in Colorado and Washington.  If marijuana becomes another partisan social issue, like gay marriage or abortion, it will make it even more difficult for Republicans to appeal to millennial voters.

Regular readers know I think these sentiments are spot on: way back in April 2012, I urged in posts and in a Daily Beast commentary that then-candidate Mitt Romney should embrace "Right on Crime" rhetoric about the need for criminal justice reforms and stress a states-rights approach to pot policy as a means to appeal to young voters.  I further stressed something missing in Cohn's discussion: the unique and important opportunity for the GOP to use crminal justice reform in general (and pot policy in particular) to stress its pro-liberty and small-government themes in a manner that should be especially salient and menaingful to minority voters. 

I very much doubt that conservatives and white evangelical Christians will be too troubled by a robust and honest GOP-led conversation about the real costs and benefits of pot prohibition.  Meanwhile, I genuinely believe many minority voters (young and old, men and women) will be quite thrilled to be supportive of any and all GOP leaders who, in that conversation, stress the considerable (and often disparate) harms to minority communities from low-level arrests and criminal justice entanglements that can flow from potential selective enforcement of pot prohibition.  In other words, if GOP leaders were to make a concern for racial justice an express feature of any effort to "seize the middle ground" with respect to pot policy, they might benefits politically in a number of diverse ways.

Taking these musing just a step further, I cannot help but (foolishly?) suggest that Mitt Romney might have actually won the November 2012 election if he had headed my criminal justice advice way back in April 2012.  As highlighted in this Nate Silver number-crunching post last month, Romney won every red state save one (North Carolina) by 8 or more percentage point.  It is hard to believe Romney loses any of those states by embracing "Right on Crime" rhetoric and stressing a states-rights approach to pot policy.  Meanwhile, Prez Obama eeked out razor thin victories in Florida, Ohio, Virginia, and Colorado, all of which are states in which a targeted states-rights message on pot policy and criminal justice reform could have alone possibly moved the needle a bit.  And, even more important, any move to the center on criminal justice would have usefully suggested that Romney was an independent thinker who would not just rely on the tired-old-GOP playbook on social issues. 

Gosh, it sure is fun and easy to be a pundit giving advice to the guy who lost so I can now say "you should have just listened to me...."   Perhaps this could even get me a gig on FoxNews in place of Dick Morris.

A few recent and older related posts: 

• "NAACP, right-wing foes get friendly" when it comes to prison costs
• "Marijuana backers court conservatives with appeals on states’ rights, ineffective pot laws"
• Could Romney appeal to independents and minorities with bold crime and punishment vision?
• A Beastly articulation of my (foolish?) hope candidate Romney might embrace the Right on Crime movement
• "The GOP platform’s surprisingly progressive stance on crime"
• When and how might pot prohibition or federal pot policy enter the 2012 Prez campaign?
• Is it really true that "conservatives and liberals are increasingly united" on criminal justice reform?
• "Conservatives latch onto prison reform"
• Female voters seen as key to success of pot reform initiatives
• Green tea party: will Glenn Beck or Sarah Palin or other professed liberty lovers support ending pot prohibition in California?
• How can and should we assess the "success" of medical marijuana and pot prohibition reform efforts?

Is the death penalty now essentially dead in North Carolina?

The question in the title of this post is prompted by this lengthy and thorough article from the Fayetteville Observer, which is headlined "Capital punishment under close scrutiny in Fayetteville, statewide."  Here are excerpts:

Convicted murderer Marcus Robinson of Fayetteville was hours away from execution in 2007.  But his life was spared by a court-ordered stay to give him and other death row inmates a chance to challenge the constitutionality of the state's method of execution.  The delay turned into an unofficial moratorium on executions that nearly six years later remains unresolved in the courts.

For Robinson, the delay provided enough time to save him from the executioner's needle. This year, he became the first — and, so far, the only — North Carolina death row inmate to use a new law, the Racial Justice Act of 2009, to have his death sentence commuted to life in prison without parole. 

Now, the Racial Justice Act, other changes to death penalty law and a decline in jurors' willingness to sentence inmates to death are raising questions about the future of executions in the state.  It's unclear when the state will resume administering its ultimate punishment.

"It's been over six years now since an execution has been carried out, so we're a state that still has the death penalty as a law but does not have executions as a reality," said Ben David, district attorney in New Hanover County. David is president of the N.C. Conference of District Attorneys and a death penalty supporter....

Since the [state's capital] law took effect, North Carolina juries have sentenced 400 people to die.  The state has executed 43 of them, according to Department of Public Safety data.  The state is tied at ninth place with South Carolina in the total number of executions carried out in the modern era, according to the Death Penalty Information Center in Washington....

According to an Elon University poll, a majority of state residents support the death penalty.  But statistics show a growing reluctance to hand down the penalty in court. In 1999, 24 people were sentenced to death.  In 2009, two were sentenced.  This year, no one has been sentenced to death in the state, and no more capital trials are scheduled this year.  This will be the first year since the 1977 law when no one in the state has been sentenced to die.

Jurors are not as likely these days to hand down a death sentence, said Ken Rose, a lawyer with the Center for Death Penalty Litigation.  In 1994, North Carolina eliminated parole for people sentenced to life in prison.  Rose thinks that when jurors are comfortable that a killer will never go free, they are less prone to vote for death.  Meanwhile, high-profile exonerations in the past 15 years and television dramas that focus on crime labs have made jurors more skeptical of prosecutors and police, Rose said....  "I think people are more aware that the system is not infallible," Rose said. "They're more aware of the flaws in the system. They're more aware that people make mistakes, and law enforcement officials are human beings and they're going to make mistakes like the rest of us."...

And a law that took effect in 2001 led to a steep decrease in death penalty prosecutions. The law allows prosecutors discretion in seeking the death penalty.  Before the law took effect, if any of 11 specified circumstances applied in a murder case — for example, more than one person was killed — prosecutors were required to seek death and could not accept a plea bargain to a life sentence.

Now that prosecutors have the option, they often choose not to pursue capital punishment. Or they may use the threat of the death sentence to push a murder defendant into pleading guilty and accepting life in prison.

Early parole after two years' imprisonment for Oklahoma woman initially give 12 years for small pot sales

Regular readers may recall the story of Patricia Spottedcrow, first discussed in this post, who was initially sentenced to a dozen years in Oklahoma state prison for selling $31 in marijuana to a police informant in December 2009 and January 2010.  This recent story from the Tusla World, headlined "Patricia Spottedcrow paroled early in 12-year sentence for $31 bag of marijuana," explains how she is now out of prison:

The four reasons Patricia Spottedcrow most wanted out of prison were back in her arms Thursday afternoon, after their mother was released on parole. Her children are 11, 6, 5 and 3 years old now. The youngest was just 1 when Spottedcrow began her prison sentence two years ago.

If Gov. Mary Fallin hadn't approved Spottedcrow's parole and if the Pardon and Parole Board hadn't agreed to early consideration for her case, her children might have all been teenagers by the time she got out.

Spottedcrow was released from Hillside Community Corrections Center in Oklahoma City on Thursday morning after completing a community-level sentence required by the governor as a condition of her parole. Her 12-year prison sentence for selling $31 worth of marijuana garnered widespread national attention after her story was featured in a 2011 Tulsa World series on women in prison.

Spottedcrow originally faced a 12-year prison sentence out of Kingfisher County for selling a "dime bag" of marijuana to a police informant. She entered prison in December 2010 after spending a few months waiting in the county jail.

After her story was published in the World, grassroots supporters lobbied officials to reconsider Spottedcrow's punishment. Advocates expressed concern for possible racial bias, disparate sentences for drug crimes, Oklahoma's No. 1 female incarceration rate per capita and the effects on children growing up with incarcerated parents.

The specifics of this case are notable not only because of how extreme Spottedcrow's initial prison sentence appeared to be, but also because of how Oklahoma's preservation of parole in its sentencing system served as a kind of second-look safety valve so that this seemingly not-so-dangerous first-offender could be released without the state and others having to bear the considerable costs of an extreme extended term of imprisonment.

Prior posts on Spottedcrow's case:

•  "How $31 of pot gave mom a 10-year-prison sentence"
• "Mom who sold $31 in pot seeks reduction to 12-year sentence"
• "Mom of 4 reflects on first year in prison for $31 pot sale"

History lessons and future forecasts concerning pot prohibition

CNN has this lengthy and effective article discussing the history and possible future of marijuana law in the United States.  Here are excerpts from a long piece worth reading in full:

Turn on a television show or open a magazine in the United States today and you're bound to see someone with a drink in hand -- something unthinkable nearly a century ago. Advocates of marijuana hope that someday that drug will emerge from its current "prohibition" period, the same way alcohol did, and become not only legal but as socially acceptable as having a drink....

However pot's future is going to play out in this country, its recent path to limited legalization has interesting parallels to alcohol, which was banned by the federal government in the 1920s and early 1930s.  The Prohibition era gave rise to an underground market for booze, produced by unregulated bootleggers and moonshiners, and consumed in back-alley speakeasies.

A few years after Prohibition's repeal, the federal government banned marijuana, hardly as popular and socially acceptable as alcohol.  It would be decades before supporters of pot would mobilize and successfully get the drug legalized in some states.  Advocates and detractors for both drugs seem to have read from the same playbook, stoking fears based on prejudices and questionable scientific studies.

Rather than discuss issues of substance, opponents of marijuana in the early 20th century preferred to exaggerate its effects and pin its use on foreigners and black entertainers. It was a familiar tactic that had panned out well in pre-Prohibition days.

In a 1914 speech before the House, Rep. Richmond Hobson of Alabama warned that booze would make the "red man" savage and "promptly put a tribe on the war path." He added, "Liquor will actually make a brute of a Negro, causing him to commit unnatural crimes." Twenty-three years later, while arguing for marijuana prohibition, Harry Anslinger also played on Americans' fear of crime and foreigners.  The Bureau of Narcotics chief spun tales of people driven to insanity or murder after ingesting the drug and spoke of the 2 to 3 tons of grass being produced in Mexico. "This, the Mexicans make into cigarettes, which they sell at two for 25 cents, mostly to white high school students," Anslinger told Congress.

The term marijuana itself was intended to stoke alarm, as many Americans in the 1930s were already familiar with other terms for the drug, according to Michael Aldrich.  "(The drug's opponents) preferred the word marijuana instead of cannabis or hemp because people thought it was some new devil drug from Mexico," said Aldrich, the curator of what is now Harvard University's Fitz Hugh Ludlow Memorial Library, a collection of psychoactive drug-related literature....

Just as Prohibition bore Al Capones and strengthened the Frank Costellos and "Lucky" Lucianos, American drug prohibition has spawned a host of cartels south of its border. They wage war against each other for the rights to the most lucrative illegal drug market on Earth -- the United States -- which by some estimates, consumes two-thirds of all the illegal drugs in the world....

When Prohibition was repealed in 1933, states saw two immediate benefits aside from neutering the criminal gangs, the first being that they could regulate the product.  Under Prohibition, unscrupulous bootleggers had manufactured moonshines and bathtub gins that could render tipplers blind or dead. Once alcohol was legal, you had a return to quality control, Peck said. The second immediate benefit? They could also tax the hooch.... In President Franklin Roosevelt's first two terms, federal taxes jumped from $1.6 billion in 1933 to $5.3 billion in 1940.

How that might translate to marijuana taxation today is debatable, and the ends of the gamut are nowhere near middle ground.  "Medical marijuana helped save the economy in California ... The counties north of San Francisco survived the recession through marijuana," said Aldrich, the marijuana historian.  He was referring to the Emerald Triangle, which is known for producing and exporting some of the country's highest-grade cannabis.

On the other side, you have President Barack Obama's drug czar, Gil Kerlikowske, who emphatically denied that marijuana legalization would prove a boon to state coffers.  Taxes on alcohol, he told CNN in 2010, amount to $14.5 billion a year, where as the social costs are closer to $185 billion.

Ahead of the recent ballot initiatives in Colorado and Washington, the Colorado Center on Law & Policy estimated that legalization would yield $60 million in state and local revenue and savings by 2017, and perhaps double thereafter.  And Washington's Office of Financial Management estimated that a "fully functioning" marijuana industry could bring in nearly $2 billion in revenue over the next five years.

"Fully functioning." Therein lies the rub. Both the Colorado and Washington estimates came with caveats explaining the obvious: Any revenue projection is contingent on the federal government not enforcing the laws that still render possession of an ounce of marijuana illegal -- even in Colorado and Washington.

University of Virginia law professor Richard Bonnie, co-author of "Marijuana Conviction: A History of Marijuana Prohibition in the United States," said it's a tricky equation. "There is something attractive about saying you've got this underground market that's not going away, that you're missing a tax opportunity," he said. "The amount of tax revenue you're going to derive from it is going to depend on what your regulatory approach is going to be."

When alcohol Prohibition was lifted in 1933, regulation was left to the states. Oklahoma stayed dry until 1959, Mississippi until 1966.  Bonnie said he sees marijuana legalization advocates leaning toward a similar model. But, he warns, "there is a social cost to a regulatory regime that taxes and becomes dependent on the revenue."

Overtax it, and you create another dilemma: black markets and the smuggling of marijuana from state to state, a la post-Prohibition.  Canada and Sweden learned that lesson with cigarette taxes in the 1990s.

All of this is putting the roach before the joint, of course.  Marijuana, no matter what Colorado and Washington say, remains illegal at the federal level.  Experts are reluctant to forecast when that might change.  Aldrich predicts federal legalization by 2017, but he concedes that in 1969 he predicted the federal government would relent by 1979.

Some recent and older related posts:

• "What's next for marijuana laws?"... how about "Give Pot a Chance"
• Voters call for experimenting with pot in the state laboratories of Colorado and Washington
• Early reactions to end of state pot prohibition in Colorado and Washington
• Recent editorials and opinion pieces on state control on pot policy
• New astute articles on the modern realities of pot politics, policies and practices
• "Medical Marijuana in Colorado and the Future of Marijuana Regulation in the United States"
• Will there be a "constitutional showdown" if a state legalizes pot? And would that be so bad?
• "Will the Feds Crack Down on Pot or Look the Other Way?"
• New poll reports that large majority of Americans consider "War on Drugs" a failure
• Effective commentary concerning political discussion of pot policy and the drug war

"More Children Growing Up With Parents Behind Bars"

The title of this post is the headline of this recent ABC News/Univision piece. Here are excerpts:

The number of children with parents behind bars in the United States is growing. And a Latino child is more than twice as likely to have an incarcerated parent as a white child.

An infographic created by sociologist Becky Pettit in her new book, Invisible Men: Mass Incarceration and the Myth of Black Progress illustrates a five-fold increase in the number of children with parents behind bars from 1980 to 2005.

While interpreting the graph, it's important to keep in mind that the Hispanic population has grown much faster than the white and black populations since 1980, meaning there are simply more Latino children and parents in the U.S. However, taken as a percentage, Latino children are still more much more likely than white children to grow up with their parents behind bars. One in 42 Latino children has a parent in prison, compared to 1 in 111 white children, according to a 2009 report from The Sentencing Project, a research and advocacy group, which used data from the U.S. Department of Justice. And, when it comes to black children, one in 15 have a parent in prison....

One in every one hundred adults in the U.S. is behind bars, and more than two-thirds are non-white, according to a 2008 Pew study. The Sentencing Project report found that children who grow up with parents in prison are more likely to "drop out of school, engage in delinquency, and subsequently be incarcerated themselves."

NAACP leadership (over?)committed to death penalty repeal in Maryland

The Baltimore Sun has this interesting new article on debate over the death penalty in Maryland headlined "NAACP to step up Maryland death penalty fight."  Here are excerpts:

The NAACP is vowing to mount in Annapolis its largest-ever effort to abolish the death penalty in a state, saying Maryland's historic role in the civil rights movement makes it an appropriate place for the push.

In an interview, NAACP President Ben Jealous said Maryland is the civil rights organization's top priority in its broader campaign to eliminate capital punishment from the American justice system.  He said the group will spend more than it ever has in a state as it rallies citizens to pressure lawmakers for repeal. "We'll make sure people hear from their constituents in a way they've never heard from them before," Jealous said.

The NAACP has historically opposed the death penalty for a variety of reasons, including racial disparities in how it is applied. Jealous said Maryland is especially important to the NAACP because of the state's civil rights history — including the careers of native sons Thurgood Marshall and Frederick Douglass. "There's a special debt of honor to get this done in Maryland for the NAACP," Jealous said.

His announcement comes as Gov. Martin O'Malley, a death penalty opponent, is weighing whether to put the full weight of his office behind a renewed effort to shut down Maryland's Death Row.  A previous O'Malley effort ended in 2009 with a compromise bill that narrowed the circumstances under which a killer can be sentenced to death but left capital punishment on the books.

Jealous declined to say how much money the NAACP plans to raise for the campaign.  He said that in addition to its existing resources, the group will hold dedicated fundraisers for the Maryland repeal effort, along with "unlikely and powerful allies" he declined to name.

While a full-scale effort by the NAACP could be influential, there is no guarantee that its clout would be powerful enough to break the impasse that has existed in the Maryland General Assembly....

Even some who favor repeal say any sense of urgency has been diminished by a de facto moratorium on executions in Maryland since 2006, the result of a court ruling striking down the regulations under which executions are carried out. Maryland has five men on Death Row — four black, one white — for murders going back as far as 1983, and it appears that over the next several years they face little risk of a lethal injection.

The five killers sentenced to death here are not likely to evoke much sympathy. They include the gunman and mastermind in a 1983 witness assassination plot that killed two at a Baltimore County motel, two men who murdered elderly neighbors in separate robberies in Prince George's County in 1996 and Baltimore in 1983, and the killer of a theater manager on the Eastern Shore in 1997.

Jealous said that while the freeze on executions may spare those men in the short term, keeping the death penalty on the books imposes costs that divert state resources from other crime-fighting measures.  "Every million dollars we spend on the death penalty is a million dollars we can't spend on hiring homicide detectives," he said.

He said anti-death-penalty forces have been on a roll, having banned capital punishment in five states in five years, including Connecticut last year.  He said the NAACP's strategy is to win abolition in a majority of states and then to ask the Supreme Court to strike it down as an unconstitutionally "unusual" punishment.

As the title of this post is meant to suggest, I am somewhat troubled by the decision by NAACP President Ben Jealous to make repeal of Maryland's dormant death penalty a priority over other race and criminal justice issues in that state and elsewhere.  As this Washington Post article from a few years ago highlights, the racial skew and scope of Maryland's use of life sentences seem a much bigger matter worthy of greater attention:

More than 2,300 Maryland inmates were serving life sentences last year, nearly 10 percent of the prison population, according to an advocacy group report released [in August 2009].... Nearly 77 percent of inmates in prison for life in Maryland are African American, making it the state with the largest share of black prisoners serving life sentences. Among the 269 prisoners in Maryland sentenced to life for crimes committed when they were juveniles, 226 are black.

In other words, while the NAACP is going to invest heavy resources in trying to alter an already dormant Maryland death penalty to benefit five brutal adult murderers, there are well over 1750 black defendants (and many black juvenile offenders) serving functionally the same life sentence in Maryland for less horrific offenses.  And, as highlighted by this recent commentary headlined "For many juveniles in Maryland, parole is out of reach," the NAACP could likely do a lot more good for both black and white offenders by trying to revive Maryland's dormant parole system rather than trying to kill its dormant capital system.

Additional disturbing realities about racial skews in Maryland's criminal justice system are detailed in this press report following a state hearing on the topic this past summer:

Blacks and Hispanics are arrested, convicted and jailed at a higher rate than whites in Maryland and are over-represented in criminal justice proceedings when compared to their percentage of the state's population, advocates said at a meeting this week of the rights commission's state advisory committee in Annapolis....

More than 72 percent of Marylanders in prison are black, according to data from the Maryland Division of Correction.  That compares to 29.4 percent of blacks as a proportion of the statewide population, according to the U.S. Census Bureau....

Less than 1 percent (0.77) of white Marylanders are arrested for drug offenses compared to 2.7 percent of black Marylanders [despite similar reported drug use rates]....

In 2013, Maryland’s Division of Correction budget increased 1.4 percent, or $11.4 million. More than 35,000 people are incarcerated in the state, and almost 70,000 are on parole, probation or other supervised release, according to the Department of Legislative Services.

But while racial disparities persist in an ever-growing Maryland criminal justice system that impacts tens of thousands of offenders, the NAACP's priority is now to raise money and pressure state legislatures to make sure five murderers no longer have to worry about an (already unlikely) execution date.

First articles in OSJCL symposium on "McClesky at 25" now up at SSRN

I am very pleased to report that two articles from the Fall 2012 issue of the Ohio State Journal of Criminal Law are now available via SSRN. There are an especially large number of terrific pieces in this issue, all of which I will be praising and promoting when the full issue comes on-line in the next few days.  But, because the articles already on SSRN come from the lead symposium focused on "McClesky at 25," I will start shining the spotlight now for sentencing fans:

Scott Sundby, The Loss of Constitutional Faith: McClesky v. Kemp and the Dark Side of Procedure:

Twenty-five years after it was decided, a legal scholar can still use McCleskey v. Kemp as shorthand for a Supreme Court decision that failed to protect the Constitution’s most basic values.  This Article uses Justice Powell’s papers to gain new insight into how an opinion came to be written that engendered so much criticism.  What emerges is a sense of how Justice Powell’s belief in the legal system, when coupled with his distrust of “statistical jurisprudence,” led him to place his faith in legal procedures despite statistical evidence that racial bias was infecting the death penalty.  McCleskey is thus an important lesson that procedure, despite its many benefits, can have a dark side if it becomes a veneer obscuring injustice.

Justice Powell’s opinion, especially the final section of the decision, also provides important lessons about how a judicial opinion communicates messages that reach beyond the holding itself.  Indeed, the Article compares Powell’s opinion to the concurrence that Justice Scalia proposed but never wrote -- a concurrence that would have acknowledged that “irrational sympathies and antipathies including racial” inevitably enter a capital jury’s decision, but then would have found no constitutional violation.  The Article ultimately asks: although Scalia’s position might have provoked outrage, might not its candor in the long run have produced a more constructive response than Powell’s opinion which appeared to adopt a position of willful blindness towards the existence of racial bias?

G. Ben Cohen, McCleskey's Omission: The Racial Geography of Retribution:

Twenty-five years after the Court in McCleskey refrained from addressing the overwhelming evidence that race, and particularly the race of the victim, plays a role in the administration of the death penalty, with no corrective measures taken to ensure that the worst of the worst offenders receive the death penalty, the death penalty in America is as arbitrary as it ever was.

This article suggests that while both the majority and the dissent in McCleskey noted the history of racism in the South, neither confronted the manner in which racism was imbedded in the goal of retribution, nor reconciled the sordid history of lynching with the modern system of capital punishment.  A careful examination of death sentences in the modern era reflects that racism arises at a county rather than a state level.  The author suggests that the history of lynching, especially in the deep south, is inexorably connected to retribution.

Future challenges to the constitutionality of capital punishment should address the validity of retribution as a basis for imposing the death penalty and the impact that desire for retribution has on county-level administration of the death penalty.

The United States Supreme Court decision in Kennedy v. Louisiana, calls for further inquiry concerning the role of retribution in supporting the validity of the capital punishment.  In Kennedy, the Court warned that “retribution” “most often can contradict the law’s own ends . . . When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”

"What's next for marijuana laws?"... how about "Give Pot a Chance"

The title of this post is drawn from the headline of two new effective pieces discussing the state and possible fate of marijuana law and policy in the wake of the marijuana legalization votes in Colorado and Washington earlier this month.  This first piece comes from CBS News, and its provides an astute review of how federal authorities might (or might not) respond to the fact that recreation marijuana use will be legal under state law in two states in just a few weeks.

The second piece at the New York Times' Opinionator site is a lengthy commentary by Timothy Egan, which includes these astute points:

For the first time since prohibition began 75 years ago, recreational marijuana use will be legal; the misery-inducing crusade to lock up thousands of ordinary people has at last been seen, by a majority of voters in [Washington] and in Colorado, for what it is: a monumental failure.

That is, unless the Obama administration steps in with an injunction, as it has threatened to in the past, against common sense. For what stands between ending this absurd front in the dead-ender war on drugs and the status quo is the federal government. It could intervene, citing the supremacy of federal law that still classifies marijuana as a dangerous drug.

But it shouldn’t. Social revolutions in a democracy, especially ones that begin with voters, should not be lightly dismissed. Forget all the lame jokes about Cheetos and Cheech and Chong. In the two-and-a-half weeks since a pair of progressive Western states sent a message that arresting 853,000 people a year for marijuana offenses is an insult to a country built on individual freedom, a whiff of positive, even monumental change is in the air....

But there remains the big question of how President Obama will handle the cannabis spring. So far, he and Attorney General Eric Holder have been silent. I take that as a good sign, and certainly a departure from the hard-line position they took when California voters were considering legalization a few years ago. But if they need additional nudging, here are three reasons to let reason stand:...

In two years through 2011, more than 2,200 serious illnesses, including 33 fatalities, were reported by consumers of nutritional supplements. Federal officials have received reports of 13 deaths and 92 serious medical events from Five Hour Energy. And how many people died of marijuana ingestion? Of course, just because well-marketed, potentially hazardous potions are legal is no argument to bring pot onto retail shelves. But it’s hard to make a case for fairness when one person’s method of relaxation is cause for arrest while another’s lands him on a Monday night football ad....

Washington State officials estimate that taxation and regulation of licensed marijuana retail stores will generate $532 million in new revenue every year. Expand that number nationwide, and then also add into the mix all the wasted billions now spent investigating and prosecuting marijuana cases. With pot out of the black market, states can have a serious discussion about use and abuse.  The model is the campaign against drunk driving, which has made tremendous strides and saved countless lives at a time when alcohol is easier to get than ever before.  Education, without one-sided moralizing, works....

From his years as a community organizer — and a young man whose own recreational drug use could have made him just another number in lockup — Obama knows well that racial minorities are disproportionately jailed for these crimes.  With 5 percent of the world’s population, the United States has 25 percent of its prisoners — and about 500,000 of them are behind bars for drug offenses.  On cost alone — up to $60,000 a year, to taxpayers, per prisoner — this is unsustainable.

Obama is uniquely suited to make the argument for change.  On this issue, he’ll have support from the libertarian right and the humanitarian left.  The question is not the backing — it’s whether the president will have the backbone.