Sentencing Law and Policy

"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.

Female voters seen as key to success of pot reform initiatives

The Atlantic has this notable new article reviewing the electorial success of the marijuana initiatives in Colorado and Washington.  The piece is headlined "The Secret Ingredients for Marijuana Legalization: Moms and Hispanics," and here are excerpts:

A few days before last Tuesday's election, New Approach Washington, the group pushing a ballot issue to legalize marijuana in the state, posted its final ad of the campaign. The spot featured a "Washington mom" -- a woman in her mid-40s, sitting on her porch, flanked by pumpkins -- who took the viewer through the assorted restrictions and benefits both minors and businesses would see once the measure, Initiative 502, was implemented: ID checks. Fewer profits for the cartels. Increased funds for schools. More time for police to "focus on violent crime instead."  In short, all of the top concerns that an average mom in the Evergreen State would seem to have about making pot legal.

But New Approach's ad was about more than just capturing the votes of a major demographic -- the same one that helped reelect President Obama and the one that kept GOP Senate hopefuls Richard Mourdock and Todd Akin at bay.  Legalization advocates have found that female support tends to be a leading indicator for marijuana measures. In the case of both California's 2010 and Colorado's 2006 votes, sagging support among women preceded a collapse in men's support too.  In California, for instance, support from women saw a 14-point swing against legalization over the final six weeks, dragging support from men under 50 percent.

"Historically, as soon as women really start to create a [gender] gap, a marijuana measure gets killed," says Allen St. Pierre, executive director of National Organization for the Reform of Marijuana Laws.  "If women get weak-kneed, the men will start to drop."

Armed with that knowledge about why previous attempts had failed, campaigns in both Washington and Colorado set out to court women . Their efforts appear to have paid off. Both states approved measures legalizing marijuana with the backing of some 55 percent of the electorate.  That was stronger than even proponents expected -- they had been cautiously optimistic about the Washington vote, but the Colorado measure appeared to be fading down the stretch. (Advocates in Oregon, where a marijuana-legalization measure failed on Tuesday, faced larger problems than merely enlisting females -- too little time to canvass, too few funds to spend.)

Convincing women -- mothers, especially -- that legalization wasn't simply about stoners and libertarians was essential to ending blanket prohibition.  They needed to be assured this was sound policy and that their children would not be affected. "We definitely wanted to reach [women]," says Tonia Winchester, the outreach director behind the Yes on I-502 camp.  "We were very much focused on not being a pro-pot campaign but a pro-policy campaign, showing that we could shift resources from incarcerating and focus on programs we knew would work."...

[W]omen aren't the sole demographic pro-legalization camps eyed.  After all, much as Obama's reelection showed that the Anglo-Christian-male bloc has become insufficient for victory -- if, as David Simon wrote, "there is no normal" -- marijuana backers understood they'd need to cultivate their own coalition of communities.

Perhaps predictably, a strong majority of the under-65 crowd showed support for measures in both states, leaving seniors as the sole age-based demographic demurring.  The big surprise came in the ethnic breakdown.  While there isn't sufficient polling on non-whites in Washington to draw conclusions, Colorado -- where the white population split on the measure -- saw Latinos support legalization at a 70 percent rate, double the national rate among the group....

Winchester says her organization also focused efforts on campaigning in Washington's Latino community, meaning that women, youth, and minorities -- the triumvirate that sealed Obama's second term -- played a similarly pivotal role in ending marijuana prohibition in both states....

Now that his organization has arrived at the hemp-lined embankments on the far side of the Rubicon, St. Pierre noted the momentum and demographics were firmly on legalizers' sides. With the victories -- and with the new numbers from a Washington Post national survey showing that 48 percent of Americans support marijuana legalization, the highest number in the history of the poll -- St. Pierre laid out a handful of states that he thinks may be the next to pass outright marijuana legalization, including Vermont and Maine, as well as second attempts in California and Oregon.

New Hampshire giving lots of — too much? — attention to condemned murderer

This new local AP piece, headlined "Day-long hearing set in death sentence appeal," notes the notable extra attention being given to a convicted murderers appeal in the Granite State.  Here are some details:

New Hampshire’s only death-row inmate will have his day in court — all day — when the state Supreme Court hears arguments pertaining to his sentence.  Michael Addison was sentenced to death for gunning down 35-year-old Manchester Police Officer Michael Briggs in 2006, when Briggs tried to arrest him on robbery charges.

The justices in Addison’s case will be deliberating the death penalty for the first time in more than 50 years — deciding, among other things, whether Addison’s sentence is just or was a product of passion or prejudice.

The justices will hear arguments in the case beginning Wednesday morning, holding four blocks of hearings, scheduled to end at 3 p.m.  Court observers say the daylong hearing on Addison’s conviction for killing a Manchester police officer and death sentence is unprecedented.  A typical hearing before the justices lasts half an hour....

Former Chief Justice John Broderick, now dean of the University of New Hampshire School of Law, said the court, on occasion, has granted more time for arguments, citing the Claremont school funding cases as examples.  "But an entire day? I don’t know of another case where that’s happened," Broderick told The Associated Press.

Attorneys for Addison have raised 22 issues, with everything from the constitutionality of New Hampshire’s death penalty statute to the political ambitions of former attorney general and now-U.S. Sen. Kelly Ayotte, in their appeal.

Addison’s lawyers want the court to vacate his death sentence and order a new sentencing hearing.  They stress that jurors determined Addison shot Briggs to evade arrest but rejected the state’s argument that he shot Briggs with the intention of killing him.

Before Addison’s case could reach this point, the Supreme Court first had to fashion the method it would use in weighing the fairness of his death penalty.  Addison’s lawyers argued his case should be compared to all other death penalty cases in this state and others, to test whether racial bias or other factors influenced his sentence. Addison is black; Briggs was white.

The only other New Hampshire capital case in decades to reach the penalty phase was that of John Brooks — a wealthy white man convicted of plotting and paying for the killing of a handyman he suspected of stealing from him.  A jury spared him a death sentence in 2008 — the same year Addison was sentenced to die.

But the court ruled in October 2010 that it would compare his death sentence to cases nationwide in which a police officer was killed in the line of duty.  The court stressed, in its 41-page ruling, that comparison cases do not have to precisely mirror the details of Addison’s case....

New Hampshire law requires the reversal of any death penalty imposed "under the influence of passion, prejudice or any other arbitrary factor." That law dates to the 1970s, when the U.S. Supreme Court ruled the death penalty unconstitutional in 1972 — prompting states to redraft their capital punishment laws to include stricter standards and procedures....

Five lawyers from the Attorney General’s office will be representing the state Wednesday — matched by five representing Addison.

The last line in this excerpted press report is what prompts my (misguided?) mini-query in the title of this post.  I find it mostly amusing that the New Hampshire Supreme Court has to commit an entire day of argument just to sort through potential sentencing issues in this unique state capital case.  But I find it mostly annoying that there are ten lawyers — five on each side, all of whom I suspect are top-flight legal minds and all of whom are funded by limited state tax dollars — who are now needed to sort out whether a guilty murderer should rot in prison for decades under a death sentence or just rot in prison under an LWOP sentence.

Long-time readers have long heard me rail about the excessive attention and resources that get devoted to condemned murderers by courts and other public and private entities.  If resources legal resources were not so limited and so relatively expensive — for criminal defendants charged with lesser crimes, not to mention all other citizens with various potential civil legal needs — I suppose I would not be too troubled with condemned cop-killer Michael Addison sucking up all this state-funded legal help.  But just weeks ago, the Chief Justice of the New Hampshire Supreme Court gave this big lecture titled "Addressing Unmet Legal Needs in NH," which includes this account of who else could benefit from legal help in the Granite State (with emphasis in original):

Here in New Hampshire, the most recent estimates are that there are nearly 150,000 low income residents with legal needs, but we were able to provide low cost legal services in only about 8,400 cases — just six percent of the need.  Who are these fellow citizens who make up the population eligible for legal assistance?  They are a family of four with an income below $44,000 or a single individual making under $21,000.  The majority are women; many are senior citizens.  Many are disabled, uninsured, under-employed or just out of work.  They need the legal system to try to solve problems that involve the issues of day-to-day existence — family problems, housing needs, consumer issues, a financial crisis, denial of benefits such as social security or food stamps.  They arrive in court, on their own, unable to navigate the system.  Basic rights are at stake — a place to live, custody of a child — but there are scarce resources to provide any legal help at all.  A 2011 survey of our court employees confirmed that the “self-represented population” continues to grow.  Seventy-four percent of our employees said the number of pro se litigants has increased over time, and continues to increase.  These employees report that as many as 70 percent of the litigants they encounter in the courthouse are self-represented.

Sadly, the (surely unintended) message in these legal realities is that the easiest way for low-income person to get a whole phalanx of lawyers to become concerned with his plight is to kill a cop.  Though I am not eager to question the commitments or judgment of any of the lawyers involved in the Addison case, I am eager to raise questions about how we allocate scarce state-funded legal resources in our nation and its states.

"Racial Disparity in the Criminal Justice Process: Prosecutors, Judges, and the Effects of United States v. Booker"

The title of this post is the title of this notable new empirical paper by Professors Sonja Starr and M. Marit Rehavi now available via SSRN. Here is the abstract:

Current empirical estimates of racial and other unwarranted disparities in sentencing suffer from two pervasive flaws.  The first is a focus on the sentencing stage in isolation. Studies control for the “presumptive sentence” or closely related measures that are themselves the product of discretionary charging, plea-bargaining, and fact-finding processes.  Any disparities in these earlier processes are built into the control variable, which leads to misleading sentencing-disparity estimates.  The second problem is specific to studies of sentencing reforms: they use loose methods of causal inference that do not disentangle the effects of reform from surrounding events and trends.

This Article explains these problems and presents an analysis that corrects them and reaches very different results from the existing literature.  We address the first problem by using a dataset that traces cases from arrest to sentencing and by examining disparities across all post-arrest stages.  We find that most of the otherwise-unexplained racial disparities in sentencing can be explained by prosecutors’ choices to bring mandatory minimum charges.  We address the problem of disentangling trends using a rigorous method called regression discontinuity design.  We apply it to assess the effects of the loosening of the U.S. Sentencing Guidelines in United States v. Booker.  Contrary to prominent recent studies, we find that Booker did not increase disparity, and may have reduced it.

Kentucky Commission on Human Rights urges state abolition of death penalty

As reported in this local article, headlined "Human Rights Commission passes resolution to abolish death penalty in Kentucky," last week a state civil rights commission formally called for repeal of Kentucky's death penalty. Here are the details:

Arguing that capital punishment is often applied unfairly against minorities and the poor, the Kentucky Commission on Human Rights board has passed a resolution opposing the death penalty in Kentucky.

The commissioners, at a meeting Wednesday in Lexington, urged the Kentucky General Assembly to repeal the law that allows the use of the death penalty in murder convictions. The commission also urged Gov. Steve Beshear to sign any such law brought before him. The resolution unanimously passed by the commissioners will be submitted to Beshear and to each state legislator.

As of April 1, Kentucky had 35 inmates on death row at the Kentucky State Penitentiary in Eddyville, according to the NAACP Legal Defense and Educational Fund. Marco Allen Chapman was the last Kentucky inmate executed, by lethal injection in 2008....

The commission resolution read: “Since 1976, when Kentucky reinstated the death penalty, 50 of the 78 people sentenced to death have had their death sentence or conviction overturned, due to misconduct or serious errors that occurred during their trial. This represents an unacceptable error rate of more than 60 percent.”

The resolution said statistics show “the death penalty is disproportionately imposed on minorities and the poor. African Americans constitute 12 percent of the U.S. population, but represent 42 percent of prisoners on death row.” It cited figures from Amnesty International that more than 20 percent of black defendants executed since 1976 were convicted by all-white juries.

A press release from the Kentucky Commission on Human Rights concerning this resolution is available at this link.  I find notable, and somewhat troubling, that this resolution cites national statistics on race and the application of the death penalty, but fails to discuss Kentucky's statistics.

I suspect the failure to discuss Kentucky's racial data in the application of the death penalty is a result of the fact that vast majority of murderers on Kentucky's death row are white.  Indeed, based on the pictures on this page of the 34 Kentucky death row defendants from the state Department of Corrections, it appears that 29 are white (85%) which is spot on with the percentages of white in Kentucky's general population.  (Of course, the proper statistical comparision is death sentences as compared to capital murderers, but those are hard numbers to find without serious research.  Then again, one would hope a state commission might do this kind of research before passing a resolution on a topic of great importance.)

"Lethal Connection: The 'War on Drugs' and Death Sentencing"

The title of this post is the title of this interesting short piece by David McCord now available via SSRN. Here is the abstract:

Many defendants on death row committed murders in which illegal drugs were somehow involved.  This Article attempts to explain and quantify the involvement of drugs in the cases of death-sentenced defendants during the six year period of 2004 to 2009 and to imagine the ways that death rows would look different if there had been no "War on Drugs."  The Article will aslo examine the effects of drug-involved death sentences with respect to gender, race, and ethnicity (particularly Latino ethnicity).

New report from Washington state indicates over 12,000 yearly marijuana arrests over last decade

As reported in this local press piece, headlined "241,000 marijuana arrests in Washington over 25 years, costing $300 million," the significant impact and important of pot prohibition on criminal justice administration in Washington state is discussed in a notable new analysis released today by the Marijuana Arrest Research Project.   Here are excerpts from the press report:

A new analysis of crime data has found more than 241,000 people in Washington were arrested for marijuana possession over the past 25 years, most of them in the past 10 years.

The report [available here], by a New York-based group of academics, conservatively estimates those arrests cost $305,714,500 in police and court during the past 25 years, and $194,026,500 in the past 10 years, a figure that excludes the cost of defense and court fines.

The report underscores a key argument for Initiative 502, a measure on the November ballot, which would decriminalize small amounts of marijuana. Report co-author Harry Levine, a sociology professor at City University of New York, said his group is not funded by any of the large institutional donors to I-502; none of the authors contributed I-502, according to campaign finance reports. But the timing is not coincidental, said Levine. “There is an intent to capture people’s attention about what is going on,” he said.

The data also underscores earlier findings about racial disproportionality in drug arrests. Although white people report use of marijuana at slightly higher rates than African-Americans or Latinos; blacks were arrested for marijuana possession at more than twice the rate of whites, and Latinos were arrested at rates more than 50% higher than whites....

Levine said it is impossible to tell if people were arrested for marijuana in addition to another crime because of the way the data is reported.  But based on other studies, he believes a large majority of the arrests were for marijuana possession alone.

The report uses 25 years of data — 1986 to 2010 — from the FBI’s Uniform Crime Reports, and extrapolates costs based on estimates by the Washington State Institute for Public Policy.

Levine said the report analyzed arrests — not convictions — because arrests also carry a heavy price. The report notes that some online criminal background check services include arrests, and the arrest reports cannot be easily expunged.  “Contrary to what people think, the simple arrests carry enormous consequences way behind the fines and the night in jail,” said Levine.

You be the sentencing judge: what is a fitting sentence for abusive "Super Glue" mom?

This AP article, headlined "Mom Who Glued Toddler's Hands Faces Sentencing," reports an on-going sentencing proceeding in Texas state court. The story prompts the challenge in the title of this post and my broader interest in readers' sentencing instincts in response to a high-profile case of child abuse:

A mother who admitted to beating her 2-year-old daughter and gluing the child's hands faces anything from probation to a life in prison for her crimes.

Elizabeth Escalona's sentencing hearing will continue Thursday, a day after she pleaded for leniency, saying she was no longer the "monster" who committed the attack.  "I will never forgive myself for what I did to my own daughter," said Elizabeth Escalona, who pleaded guilty in July to felony injury to a child.

Police say Escalona lost her temper last year with Jocelyn Cedillo over potty training problems.  Escalona beat and kicked Jocelyn before sticking her hands to an apartment wall using an adhesive commonly known as Super Glue.  The child was hospitalized for days.

Judge Larry Mitchell has a wide range in choosing Escalona's sentence: Anything from probation to life in prison is possible.  Prosecutors are asking for a 45-year sentence.

Defense attorney Angie N'Duka asked Escalona what she thought of photos that prosecutors presented earlier this week showing her daughter's injuries.  "Only a monster does that," Escalona responded. N'Duka then asked Escalona whether she thought she was a monster. "When that happened, I was," Escalona replied.

Escalona asked Mitchell for an opportunity to show she had changed, adding that she would accept any sentence as fair. "I want everybody to know I'm not a monster," Escalona said. "I love my kids." Escalona admitted to hitting and kicking her daughter but said she didn't recall why she did it.

Prosecutors have portrayed Escalona as an unfit mother with a history of violence.  They have played recordings in which Escalona as a teenager threatened to kill her mother.  They said she was a former gang member who started smoking marijuana at age 11.

Jocelyn suffered bleeding in her brain, a fractured rib, multiple bruises and bite marks, and was in a coma for a couple of days. Some skin had been torn off her hands, where doctors also found glue residue and white paint chips from the apartment wall, witnesses testified.

Escalona's family has acknowledged their dismay and anger following the attack, but both her mother and sister asked the judge for leniency.  "I wanted an explanation," said Margaret Escalona, her sister. "I wanted to know what happened.  I wanted to beat my sister up."

Ofelia Escalona, Elizabeth's mother, said her daughter hit her as a child, but she also said Elizabeth was abused growing up.  Both Ofelia and Margaret Escalona argued that Elizabeth needed more help and not prison.  "Her being taken away won't help any," Margaret Escalona said.

Counselor Melanie Davis testified Wednesday that she believes from the conversations she has had with Elizabeth Escalona that the mother loves her five children, one of whom was born after the attack.  Davis said she has been counseling Escalona since June, nine months after her arrest.

I find this story interesting for many reasons: (1) despite modern structured sentencing reforms, here a sentencing judge still has unfettered discretion to impose a sentence anywhere from probation to life in prison; (2) though not asking for life, prosecutors' request for a 45-year prison term suggests they state think defendant should not be locked up until she is very old (and no longer able to have more kids); (3) the only man mentioned in this story is the sentencing judge (though I am inclined to assume at least one of the prosecutors is a man); (4) Texas has a procedure for jury sentencing, and it is interesting to speculate whether we think a fitting sentence would be more likely to emerge from a multi-member jury deliberating about these matters rather than from a single sentencing judge.

Would any prosecutors throw challenge flag for plea deal cut for sexual misconduct with student?

Though the MLB playoff have me in more of a baseball mood this week, I cannot avoid this football-related AP story about a notable plea deal struck by a former NFL cheerleader.  The story is headlined "Ex-Cincinnati Bengals cheerleader pleads guilty to having sex with former high school student," and here are excerpts:

A former Cincinnati Bengals cheerleader pleaded guilty Monday to having sex with her 17-year-old former student while she was a teacher at a northern Kentucky high school, a move that will allow her to avoid jail time.

In a tearful admission in Kenton County Circuit Court in Covington, Ky., 27-year-old Sarah Jones pleaded guilty to sexual misconduct and custodial interference in place of more serious charges as part of a plea agreement with prosecutors. “I began a romantic relationship while he was a student and I was in a position of authority,” Jones said, her voice cracking as her family members wiped their own tears.

Jones said the relationship began in February 2011 when the boy was 17, saying that the two had sex, that she sent him sexually explicit text messages and lied about the relationship to police.  The teen had been in Jones’ freshman English class in 2008, and she was his peer tutor in 2010 and 2011 before he graduated at the age of 17 this year, according to Monday’s plea agreement, signed by Jones.

In accepting the plea agreement, Judge Patricia Summe granted prosecutors’ recommendation to sentence Jones to five years of diversion but no jail time, and she won’t have to register as a sex offender.  The diversion requires Jones to report to a probation officer and undergo drug tests.

Prosecutors said they were willing to make the deal because the teen, now 18, and his family were uncooperative with them and on Jones’ side.  “We feel that it is a just and it is a fair result,” prosecutor Sara Farmer said.  “It’s certainly difficult when a victim and his family don’t cooperate by not providing information, but it makes our case a lot harder when they’re actually proactive for a defendant, and in this case, the family was more than supportive of the Jones (family).  They were proactive for them.”...

Part of the reason defense attorney Eric Deters said Jones was willing to plead guilty was because Summe had denied his request to keep the text messages that she sent to the teen out of the trial. “They’re embarrassing,” Deters told reporters after the hearing. “They were steamy.”

He also said that now that the teen is 18 years old, he and Jones “are free to be together” and pointed out that they left the courtroom together.  Deters declined to discuss details of their current relationship, saying that the pair would discuss it on the “Today” show and “Dateline” on Friday.

He said that Jones will not try out to be a Bengals cheerleader in the future, and that for now, she’s working as a legal assistant in his office.  Jones has expressed interest in becoming a lawyer and is studying to take the Law School Admission Test, he said....

Jones’ mother, former school principal Cheryl Armstrong Jones, also pleaded guilty Monday, to a misdemeanor charge of attempted tampering with evidence.  She admitted to the judge that she sent the teen a text message telling him to get rid of his phone and also avoided jail time.

As the question in the title of this post suggests, I am curious to know if any prosecutors (or others) are troubled by this plea deal.  Because this story gives me little reason to suspect that the defendant here poses any serious threat to the public, I am not especially troubled she was able to cut a sweet plea deal and has appearances now slated for the "Today" show and "Dateline."  But perhaps others have a different take on this matter.

"Immigrant Criminals in Overcrowded Prisons: Rethinking an Anachronistic Policy"

The title of this post is the title of this lengthy paper by Professor Peter Schuck, which is available via SSRN. Here is the abstract:

Under an Immigration and Nationality Act provision dating to 1917, deportable immigrant criminals must serve their entire sentences in the U.S. before being removed from the country. (Exceptions, enacted in 1996, are seldom used).  At the same time, federal and state prisons are dangerously overcrowded, with the Supreme Court soon to rule on the constitutionality of overcrowded conditions in the California system.  The paper shows that the most common proposals for reducing overcrowding are either politically difficult (e.g., shorter sentences) or numerically insignificant (e.g., decriminalizing drug possession for use).  The paper proposes instead, or in addition, to facilitate the earlier removal of deportable criminals and analyzes the legal, policy, and diplomatic changes that would be necessary to implement this approach.

Ohio Amish hair-cutting incidents now a federal hate crimes sentencing matter

As reported in this New York Times article, "Jury Convicts Amish Group of Hate Crimes," a notable religious dispute is now a fascinating federal sentencing matter. Here are the basics:

Samuel Mullet Sr., the domineering leader of a renegade Amish sect, and 15 followers were convicted of federal conspiracy and hate crimes Thursday for orchestrating a series of bizarre beard- and hair-cutting attacks last fall that spread fear through the Amish of eastern Ohio.

The convictions of Mr. Mullet and his followers and family members who carried out the assaults could bring lengthy prison terms. The jury’s verdict vindicated federal prosecutors, who made a risky decision to apply a 2009 federal hate-crimes law to the sect’s violent efforts to humiliate Amish rivals.

Mr. Mullet, 66, founder of a community near Bergholz, Ohio, and 15 followers, including six women, were tried for their roles in five assaults on people that Mr. Mullet had described as enemies. The jury heard three weeks of testimony and deliberated more than four days before reaching a verdict midday Thursday.

Although Mr. Mullet did not directly participate in the attacks, prosecutors labeled him the mastermind of the assaults, in which groups of his followers held down victims and sheared their beards and hair. Among the traditional Amish, men’s long beards and women’s uncut hair are central to religious identity. Prosecutors argued that the attacks were intended to humiliate those who questioned Mr. Mullet’s cultlike methods, like forcing errant followers to live in chicken coops and pressing married women — including his own daughter-in-law — to accept his intimate sexual “counseling.” ...

The high-profile nature of the case, and the stakes for the defendants, were raised when Steven M. Dettelbach, the United States attorney for the Northern District of Ohio, stepped in to charge Mr. Mullet and 15 others, including several of his children and other relatives, with federal conspiracy and hate-crime charges that carry potential sentences of 10 years per count.

The defendants did not deny their roles in the attacks, which were carried out with battery-powered clippers, scissors and razor-sharp shears that are designed to trim horse manes. Rather, the case turned on the motives for the attacks and whether it was appropriate to make them into a major federal case under a 2009 hate-crimes law.

To prove the most serious charges, the jurors had to be convinced that the defendants had caused “bodily injury,” which could mean “disfigurement,” and that the attacks on nine of the victims were based mainly on religious differences.

Lawyers for the defense argued that cutting hair was not disfigurement and that the attacks resulted from family and personal differences, including a bitter custody battle involving a daughter of Mr. Mullet’s, as well as disputes over the “true” Amish way. They argued that prosecutors had overreached by labeling the assaults as religiously inspired hate crimes.

I have not yet looked into how the US Sentencing Guidelines might be calculated in this unique case, but I have a feeling that the debates over sentencing could end up as dynamic and as controversial as the debates over making this matter a federal criminal case in the first instance.

"Challenging the Death Penalty with Statistics: Furman, McCleskey and a Single County Case Study"

The title of this post is the title of this notable new paper on SSRN authored by Steven Shatz and Terry Dalton. Here is the abstract:

In the forty year history of the Supreme Court's modern death penalty jurisprudence, two cases — Furman v. Georgia (1972) and McCleskey v. Kemp (1987) — stand out above all others.  Both cases turned on the Court's consideration of empirical evidence, but they appear to have reached divergent — even altogether inconsistent — results.  In Furman, the Court relied on statistical evidence that the death penalty was infrequently applied to death-eligible defendants to hold that the Georgia death penalty scheme was unconstitutional under the Eighth Amendment.  In McCleskey, the Court, despite being presented with statistical evidence that race played a significant role in death-charging and death-sentencing in Georgia, upheld the revised Georgia scheme and McCleskey's death sentence against Equal Protection and Eighth Amendment challenges.  The McCleskey decision called into question the use of statistical evidence to challenge the death penalty.

In the present article, we report on a unique empirical study of the administration of the death penalty in Alameda County, California — the largest single-county death penalty study and the only study to examine intra-county geographic disparities in death-charging and death-sentencing.  The data set, drawn from 473 first degree murder convictions for murders occurring over a 23-year period, compares death-charging and death-sentencing in the two halves of the county.  During the study period, the two halves differed significantly in racial makeup — the population of North County was over 30% African-American, and of South County less than 5% African-American; and the two halves differed in the race of homicide victims — in North County, African-Americans were homicide victims roughly 4.5 times as often as Whites, while, in South County, Whites were homicide victims more than three times as often as African-Americans.

The study reveals that there were statistically significant disparities in death-charging and death-sentencing according to the location of the murder: the Alameda County District Attorney was substantially more likely to seek death, and capital juries, drawn from a county-wide jury pool, were substantially more likely to impose death, for murders that occurred in South County.  We argue that, McCleskey notwithstanding, statistical evidence such as the "race of neighborhood" disparities found in the present study should support constitutional challenges to the death penalty under both the Equal Protection Clause and the Eighth Amendment.

"Estimating Gender Disparities in Federal Criminal Cases"

The title of this post is the title of this great-looking new paper by Sonja Starr, which is now available via SSRN. Here is the abstract:

This paper assesses gender disparities in federal criminal cases. It finds large gender gaps favoring women throughout the sentence length distribution (averaging over 60%), conditional on arrest offense, criminal history, and other pre-charge observables.  Female arrestees are also significantly likelier to avoid charges and convictions entirely, and twice as likely to avoid incarceration if convicted.

Prior studies have reported much smaller sentence gaps because they have ignored the role of charging, plea-bargaining, and sentencing fact-finding in producing sentences. Most studies control for endogenous severity measures that result from these earlier discretionary processes and use samples that have been winnowed by them.  I avoid these problems by using a linked dataset tracing cases from arrest through sentencing.  Using decomposition methods, I show that most sentence disparity arises from decisions at the earlier stages, and use the rich data to investigate causal theories for these gender gaps.

I have long found that, in both the classroom and in other settings, discussion of discretion and disparity in the criminal justice treatment of different genders can often foster more dynamic and less polarizing discusson than when the focus is on race. For this reason (and many others), I hope to soon find time to consume this important new article and may well comment on it further.

New report examines what ACA can mean for corrections and public safety

I often tell my students that all legal and public policy issues always somehow are really sentencing and corrections issues in some way.  (The 2000 election and the fights in Bush v. Gore are my favorite example: if not for broad felon disenfrachisement laws in Florida, it seems unlikely the popular vote in that state would have been so close.)  For that reason (and others), I was pleased today to get this notice from The Sentencing Project about a new publication examining the impact and import of the Affordable Care Act for certain criminal justice matters:

Many people in correctional institutions have faced barriers obtaining needed physical and behavioral health care services.  This is largely due to high rates of unemployment and narrow Medicaid eligibility criteria.  As documented in our new report, The Affordable Care Act: Implications for Public Safety and Corrections Populations, federal heath care reform legislation could change this in three key ways:

• Expanded Health Care Coverage — The Affordable Care Act gives states the option of expanding Medicaid eligibility and makes prevention, early intervention, and treatment of mental health problems and substance use essential health benefits. In states that opt to expand Medicaid coverage, the Federal government will cover 100% of expenditures for the newly eligible population from 2014 to 2016, with the amount of federal funds decreasing yearly to 90% by 2020 and thereafter.

• Reducing Recidivism — Because of the role mental health and substance abuse problems play in behaviors that lead to incarceration and recidivism, the Affordable Care Act could help states reduce the number of people cycling through the criminal justice system.

• Addressing Racial Disparities — The new legislation may contribute to reducing racial disparities in incarceration that arise from disparate access to treatment.

The Affordable Care Act: Implications for Public Safety and Corrections Populations, by Dr. Susan Phillips, introduces key provisions of the Affordable Care Act as they relate to correctional populations, and includes links to organizations that are closely following the implementation of the act.

Despite legislative "future" repeal, Connecticut death penalty to face trial

As explained in this Hartford Courant article, headlined "Prosecutors Will Take Stand In Death Penalty Bias Trial," the application of the death penalty in Connecticut is due to go on trial in state court tomorrow.  Here are the details:

Chief State's Attorney Kevin T. Kane is expected to be one of the first witnesses Wednesday in the long-awaited habeas corpus trial on claims by condemned killers that Connecticut's death penalty is racially, ethnically and geographically biased.

Kane and other state prosecutors -- including New Haven State's Attorney Michael Dearington, who successfully sought the death penalty for Cheshire home invasion killers Steven Hayes and Joshua Komisarjevsky -- will likely testify about their decisions to pursue death by lethal injection for certain accused murderers, and sentences of life in prison for others.

Starting Wednesday and for several weeks, the judge, lawyers, court staff and witnesses in the case will travel to Northern Correctional Institution in Somers where the trial is being held in a prison dayroom.  Northern houses Connecticut's death row.  The public can view the proceedings through a live video feed being shown at Superior Court in Rockville where habeas corpus petitions are usually heard. The unusual trial plan was created after correction officials expressed safety concerns about the death row inmates all being in the same courtroom at once in Rockville....

Repeal of the death penalty by lawmakers earlier this year raised questions about whether the discrimination trial should be put on hold until the state Supreme Court decides the constitutionality of the repeal for future crimes.  The historic vote at the legislature in April abolished the death penalty for future crimes but allows executions for those who committed capital crimes before the new law was passed.

Superior Court Judge Samuel J. Sferrazza decided to move ahead with the case, which has languished for years.  Sferrazza in July rejected requests by the death row inmates involved in the habeus corpus trial to amend their petition to raise new issues related to the state's decision to abolish capital punishment for future crimes.  Sferrazza said those issues could be raised in a separate petition without delaying consideration of the discrimination claims.

Death row inmates' claims of bias date back to 1994 when Sedrick Cobb asked for the opportunity to present statistics to demonstrate that racial discrimination influenced the death penalty.  Cobb, who is black, had been convicted in the December 1989 rape and killing in Waterbury of 23-year-old Julia Ashe of Watertown.  Ashe was white.  Cobb was eventually told by the state Supreme Court that he would have to lodge his claims about racial bias in a habeas petition.

Federal district court concludes sex-change operation medically necessary for transgender prisoner

As effectively reported in this new post at the WSJ Law Blog, "a federal judge in Boston has ordered Massachusetts authorities to provide a taxpayer-funded sex-change operation for a transgender prisoner."  Here is more about the ruling from the WSJ Law Blog (which also provides this link to the opinion):

Chief U.S. District Judge Mark Wolf said he based his ruling on the recommendations of doctors at the commonwealth’s Department of Correction who prescribed sex-reassignment surgery as “the only form of adequate medical care” for Michelle Kosilek, who used to go by “Robert.”

Kosilek is serving life in prison without the possibility of parole for the 1990 murder of his wife.

Judge Wolf, describing his 126-page order as “unprecedented,” said that denying Kosilek the surgery was a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment. Prison officials opposed the operation, saying they couldn’t provide security for Kosilek were he to receive a sex change — an argument Judge Wolf described as “pretextual.”...

Specialists have diagnosed Kosilek with severe gender identity disorder, and since 2003 he has been receiving female hormones. Kosilek lives in the general population of an all-male prison in Norfolk, Mass. Despite the hormone treatment and psychotherapy, Kosilek has attempted to castrate himself and twice tried to commit suicide, according to court documents....

A spokeswoman for the Massachusetts Department of Correction, Diane Wiffin, said, ”We are reviewing the decision and exploring our appellate options.” A lawyer for Kosilek, Frances Cohen of Bingham McCutchen LLP, said she was “pleased and gratified that we got such a thoughtful and full decision from the chief judge.”

The ruling in this case is sure to engender lots of talk-show discussion, but I encourage readers of this blog to take the time to at least read the introduction to the opinion (which itself runs 23 pages) before expressing any views on the merits of the decision.  Everyone should, of course, read all 126 pages of the full opinion before reaching any firm conclusion about the ruling and whether and how an appeal to the First Circuit might proceed.  But I will be content to hear comments after a review of the introduction, which should be sufficient to allow at least informed initial judgments about whether this is just another example of Reagan-appointed federal judges going all crazy activist in a high-profile health care case.

"Drugs, Dignity and Danger: Human Dignity as a Constitutional Constraint to Limit Overcriminalization"

The title of this post is the headline of this new article by Professor Michal Buchhandler-Raphael now available via SSRN. Here is the abstract:

The American criminal justice system is under tremendous pressures, increasingly collapsing under its heavy weight, thus requiring inevitable change.  One notable feature responsible for this broken system is over-criminalization: the scope of criminal law is constantly expanding, making individuals liable to conviction and punishment for an ever-wider range of behaviors.  One area where over-criminalization is most notable concerns victimless crimes, namely, individuals who engage in consensual conducts which inflict only harm on themselves but not on third parties, such as prostitution, pornography, sadomasochism, gambling, and most notably, drug crimes.

Despite increasing scholarly critique of the continued criminalization of these behaviors, particularly drug offenses, significant limits on the scope of victimless crimes have not yet been adopted.  Two features characterizing criminal law account for this: first, in contrast with criminal procedure, constitutional law has not placed any significant limits on substantive criminal law, and second, there is no coherent theory of criminalization that sets clear boundaries between criminal and non-criminal behaviors.

This article proposes a constitutional constraint to limit criminalization of victimless crimes, and particularly to alleviate the pressures on the criminal justice system emanating from its continuous “war on drugs."  To accomplish this goal, the article explores the concept of human dignity, a fundamental right yet to be invoked in the context of substantive criminal law.  The U.S. Supreme Court’s jurisprudence invokes conflicting accounts of human dignity: liberty as dignity, on the one hand, and communitarian virtue as dignity on the other.  However, the Court has not yet developed a workable mechanism to reconcile these competing concepts in cases where they directly clash.  The article proposes guidelines for balancing these contrasting interests and then applies them to drug crimes, illustrating that adopting such guidelines would result in constraining the scope of substantive criminal law.

NAACP gets behind marijuana legalization inititative in Colorado

As reported in this local article, the "Colorado ballot initiative to legalize limited possession of marijuana for adults is set to pick up an endorsement from a civil rights organization Thursday." Here is more:

[T]he head of the Colorado, Wyoming and Montana conference of the National Association for the Advancement of Colored People is expected to announce the conference's support for the initiative, Amendment 64.  The conference's president, Rosemary Harris Lytle, said Wednesday the endorsement comes not out of an interest in marijuana use but instead from a concern over the lopsided numbers of African-Americans arrested for marijuana offenses.

"In ending the prohibition against adult use of marijuana we might affect mass incarceration and its disproportionate impact on African-Americans and other people of color," Harris Lytle said.

In 2010, African-Americans accounted for roughly 9 percent of all arrests for marijuana possession in Colorado and 22 percent of arrests for marijuana sales or cultivation, according to figures advocates pulled from FBI data.  African-Americans made up about 4 percent of the Colorado population that year.

The local NAACP endorsement follows a similar endorsement by the California NAACP of a marijuana-legalization measure there in 2010.  And it is in line with the national NAACP's stance against the drug war.  "The realization is that drug laws have been disproportionately enforced against communities of color," said Niaz Kasravi, the national NAACP's criminal justice director.

Adams County District Attorney Don Quick, who opposes the initiative, agreed that African-Americans are over-represented in the criminal justice system.  "There's no denying it and that's wrong," Quick said.  "But the answer to that isn't to make marijuana more available in the community."

Quick said a proliferation of marijuana among adults will trickle down to kids, resulting in lower graduation rates and more discipline problems.

"Engendering Rape"

The title of this post is the title of this new article on SSRN discussing prison rape policies and reform efforts. Here is the abstract:

This article highlights a systematic bias in the academic, correctional, and human rights discourse that constitutes the basis for prison rape policy reform. This discourse focuses almost exclusively on sexual abuse perpetrated by men: sexual abuse of male prisoners by fellow inmates, and sexual abuse of women prisoners by male staff. But since 2007, survey and correctional data have indicated that the main perpetrators of prison sexual abuse seem to be women. In men’s facilities, inmates report much more sexual victimization by female staff than by male inmates; in women’s facilities, inmates report much higher rates of sexual abuse by fellow inmates than by male or female staff. These findings contravene conventional gender expectations, and are barely acknowledged in contemporary prison rape discourse, leading to policy decisions that are too sanguine about the likelihood of female-perpetrated sexual victimization.

The selective blindness of prison rape discourse to counterstereotypical forms of abuse illuminates a pattern of reasoning I describe as “stereotype reconciliation,” an unintentional interpretive trend by which surprising, counterstereotypical facts are reconciled with conventional gender expectations. The authors of prison rape discourse tend to ignore these counterstereotypical facts or to invoke alternative stereotypes, such as heterosexist notions of romance or racialized rape tropes, in ways that tend to rationalize their neglect of counterstereotypical forms of abuse and reconcile those abuses with conventional expectations of masculine domination and feminine submission.

Will women be the key swing voters for state marijuana ballot initiatives?

The question in the title of this post is prompted by this interesting local story from Washington, which is headlined "A mellow $1 million marijuana campaign."  Here are excerpts:

A group supporting Initiative 502, which would legalize, tax and regulate sales of marijuana in Washington, is up, up and away with a $1 million advertising campaign and a 30 second spot you’ll see on early morning TV news.  “It’s definitely targeted to women who tend to be less supportive of marijuana reform than men,” said Alison Holcomb, coordinator for the New Approach Washington campaign.

The marijuana campaign is mellow, featuring a woman looking into the TV screen and saying: “I don’t like it personally, but it’s time for a conversation about legalizing marijuana.  It’s a multimillion dollar industry in Washington State and we get no benefit. What if we regulate it?”  The end message:  A “new approach” to cannabis is needed.

New Approach is dealing with a tricky political climate ... [and] the country is polarized. Law enforcement has become addicted to its “War on Drugs” despite evidence that the war is being lost.  The 1930′s-vintage movie “Reefer Madness” is still taken seriously, and the careers of students, park rangers and Olympic athletes get permanently blighted if they test positive or admit to taking a toke.  At the other end of the spectrum are ... “Free the Weed” advocates, the pothead constituency deeply suspicious of city attorneys and former FBI agents and police chiefs signing on to the legalization cause....

New Approach Washington has been laying groundwork for more than a year.  At last check with the Washington State Public Disclosure Commission, it has raised $2.95 million and spent $1.4 million.  Still, both major candidates for Governor — Republican Rob McKenna and Democrat Jay Inslee — have come out against Initiative 502.  So have several major police organizations.

As regular readers know, I find the on-going legalization campaigns in a few Western states to be fascinating and useful for sentencing fans to follow closely.  The local, state and national mood concerning the pros and cons of the drug war are always difficult to guage, and I expect the advertising and polling over theese initiatives to provide an important window into what the most passionate advocates (and monied interests) view as key elements in the broader drug war battlefield.

Some recent and older related posts on pot policies and politics: 

• Big win at polls for medical marijuana supporter in Oregon AG race
• State judge makes personal plea for right to use medical marijuana
• "Why I Want a Medical Marijuana Dispensary Near My Children's School"
• Latest polling indicates legalization of marijuana now has strong majority support
• Two notable new pieces on pot policy debates coming to mainstream politics
• "Medical Marijuana in Colorado and the Future of Marijuana Regulation in the United States"
• "Bummer: Barack Obama turns out to be just another drug warrior"
• Is the time right for candidate Ron Paul to lead withdrawal from the "war on drugs"?
• New poll reports that large majority of Americans consider "War on Drugs" a failure
• "California voters don't back marijuana legalization, poll finds"
• Proof of prohibition's failings?: teens now smoke pot more than tobacco