Sunday, May 03, 2015
“Catching American Sex Offenders Overseas: A proposal for a federal international mandated reporting law”
The title of this post is the title of this notable new law review article authored by Basyle Tchividjian, which I just came across. Here is an excerpt from the end of the piece's introduction:
In Asia alone, over 62,000 Americans visit each year for the purpose of sexually victimizing children.4 These numbers do not include other parts of the world, nor the United States citizens who reside overseas and sexually abuse children. This considerable problem requires a bold and practical response that has proven to be effective in the United States. It is time that federal law catch up to the states and mandate its citizens who are overseas to report Americans who are suspected of sexually abusing children in foreign countries.
Section II of this Article provides a brief foundational history of mandated reporting laws in the United States. Section III outlines the increased involvement of the federal government in promoting mandated reporting laws. Section IV summarizes the modern state of mandated reporting, and Section V analyzes the effectiveness of the current law. Section VI shifts the focus to the growing problem of United States citizens sexually victimizing children in foreign countries. Section VII introduces and analyzes the PROTECT Act, exposing a significant gap in the ability to enforce this federal law. Section VIII proposes a federal international mandated reporting law that will help close the gap and allow the PROTECT Act to achieve its objective of identifying and prosecuting United States citizens who sexually abuse children overseas.
May 3, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack
Tuesday, April 28, 2015
Indonesia executes by firing squad eight of "Bali nine" for drug offenses
As reported in this New York Times article, "the Indonesian government executed eight drug convicts after midnight on Wednesday, including seven foreigners." Here is more:
The executed prisoners, from Australia, Brazil and Nigeria, along with one Indonesian, were shot by police firing squads about 12:25 a.m. local time at a site outside the gates of Pasir Putih prison on the island of Nusa Kambangan off the southern coast of Java, according to the attorney general’s office.
The authorities granted the stay of execution to Mary Jane Veloso, 30, a Philippine citizen, after the Philippine government requested her assistance in a human trafficking case involving a woman who surrendered to the Philippine police on Tuesday....
The mass execution was the second in Indonesia this year. In January, five foreign drug convicts and one Indonesian convicted of murder were shot by firing squads on the island.
On Saturday, the attorney general’s office gave 72 hours’ notice to the latest group of condemned prisoners, their legal teams and their respective embassies that the executions would be carried out. On Monday, an Australian prisoner, Andrew Chan, married his Indonesian fiancée in a small ceremony at the prison. A French citizen who was also originally on the list to be executed won a two-week reprieve from the State Administrative Court in Jakarta, the Indonesian capital, which will hear his challenge to a clemency rejection by President Joko Widodo.
Shortly after taking office last October, Mr. Joko declared that Indonesia was facing “a national emergency” of drug abuse, and he rejected 64 clemency appeals from death row drug convicts, most of them foreigners. Saying Indonesia had a right to exercise its drug laws, Mr. Joko’s government rejected international pleas to cancel the executions, including from Ban Kimoon, secretary general of the United Nations.
The executions have angered some of Indonesia’s largest aid donors, including Australia and the European Union. Australia announced on Wednesday that it would withdraw its ambassador to Indonesia, and Prime Minister Tony Abbott described the deaths of Mr. Chan and another Australian, Myuran Sukumaran, as a dark moment in Australia’s diplomatic relations with Indonesia.
Monday, April 27, 2015
Is US push for sentencing reform progressive enough to embrace progressive "day fines"?
The question in the title of this post is prompted by this notable New York Times article about fine punishment for speeding in Finland. The piece is headlined "Speeding in Finland Can Cost a Fortune, if You Already Have One," and here are excerpts:
Getting a speeding ticket is not a feelgood moment for anyone. But consider Reima Kuisla, a Finnish businessman. He was recently fined 54,024 euros (about $58,000) for traveling a modest, if illegal, 64 miles per hour in a 50 m.p.h. zone. And no, the 54,024 euros did not turn out to be a typo, or a mistake of any kind.
Mr. Kuisla is a millionaire, and in Finland the fines for more serious speeding infractions are calculated according to income. The thinking here is that if it stings for the little guy, it should sting for the big guy, too. The ticket had its desired effect. Mr. Kuisla, 61, took to Facebook last month with 12 furious posts in which he included a picture of his speeding ticket and a picture of what 54,024 euros could buy if it were not going to the state coffers — a new Mercedes. He said he was seriously considering leaving Finland altogether....
The Nordic countries have long had a strong egalitarian streak, embracing progressive taxation and high levels of social spending. Perhaps less well known is that they also practice progressive punishment, when it comes to certain fines. A rich person, many citizens here believe, should pay more for the same offense if justice is to be served. The question is: How much more?...
At the University of Helsinki, Jussi Lahti, 35, a graduate student in geography, said that he could understand why Mr. Kuisla was upset, but that he considered the principle of an equal percentage fair. And, he added, Mr. Kuisla “had a choice when he decided to speed.”
The size of Mr. Kuisla’s ticket nonetheless drew considerable attention here as television shows and newspapers debated the merits of Finland’s system, which uses a complex formula based on income to calculate an individual’s fines. Some wondered whether the government should stop imposing such fines for infractions at relatively low speeds. Some suggested that a fine so big was really a form of taxation. But the idea that the rich should pay heavier fines did not seem to be much in question. “It is an old system,” said Pasi Kemppainen, chief superintendent at the National Police Board. “It may lead to high fines, but only for people who can afford it.”
In fact, the Finnish “day fine” system, also in use in some other Scandinavian countries, dates to the 1920s, when fines based on income were instituted for all manner of lesser crimes, such as petty theft and assault, and helped greatly reduce the prison population. The fines are calculated based on half an offender’s daily net income, with some consideration for the number of children under his or her roof and a deduction deemed to be enough to cover basic living expenses, currently 255 euros per month.
Then, that figure is multiplied by the number of days of income the offender should lose, according to the severity of the offense. Mr. Kuisla, a betting man who parlayed his winnings into a real estate empire, was clocked speeding near the Seinajoki airport. Given the speed he was going, Mr. Kuisla was assessed eight days. His fine was then calculated from his 2013 income, 6,559,742 euros, or more than $7 million at current exchange rates.
Someone committing a similar offense and earning about 50,000 euros a year, or $54,000, none of it capital gains, and with no young children, would get a fine of about 345 euros, or about $370. Someone earning 300,000 euros ($322,000), would have to pay about 1,480 euros ($1,590). When the “day fine system” was devised for petty crimes, Finland did not even have any speed limits on its roads. Those did not arrive until the 1970s....
Until he was issued the speeding ticket, Mr. Kuisla used his Facebook page largely to post pictures of his winning horses or the lobbies and bars of the hotels he owns. But the ticket seemed to focus his attention on Finnish policies that he said discouraged entrepreneurs, apparently a reference to the country’s progressive tax system and its high inheritance taxes. High earners can face an income tax rate of more than 50 percent. “Finland is now an impossible country to live in for people with a large income and wealth!” he posted on March 2.
But online comments in newspapers suggested a strong showing for the other side. “This says a lot about the times when the stinkingly rich can’t even take their fines for crimes, but are immediately moving out of the country. Farewell, we won’t miss you,” said one post in The Helsingin Sanomat, a daily newspaper and website....
Mr. Kuisla’s $58,000 ticket is not even the most severe speeding ticket issued in recent years. According to another daily newspaper, Ilkka, Mr. Kuisla himself got an even bigger fine in 2013 when he was going about 76 m.p.h. in a 50 m.p.h. zone. That ticket was for 63,448 euros, about $83,769 at the time. Bigger yet was the ticket issued to a 44-year-old Nokia executive in 2002, when he was caught blowing through Helsinki on his Harley motorcycle and was hit with a $103,600 fine, based on a $12.5 million yearly income.
Both tickets were appealed and in the end reduced. Usually, appeals are based on financial issues, such as a one-time sale of stock that year. But judges have great leeway, experts said. Mr. Kuisla ended up paying 5,346 euros for the 2013 ticket.
Long-time readers know that I am a huge fan of economic sanctions, and I have long thought that the Scandinavian "day fine" approach to punishment for lower-level crimes to be much more fair and effective than short terms of incarceration. I think it is fair to claim (and perhaps complain) that these kinds of day fine operate more like taxes than like traditional punishments; whatever label is attached, I suspect that defendants (especially rich ones) drive much more carefully in jurisdictions where an infraction is likely to have a real financial bite. Among other potential benefits, a "day fine" approach to certain lower-level "quality of life" offenses might prompt law enforcement to concentrate more of their policing resources in richer rather than poorer neighborhoods.
Perhaps needless to say, I doubt the billionaires who support sentencing reform in the US on both the left (George Soros) and the right (the Koch brothers) are likely to get behind a progressive "day fine" approach to devising effective alternatives to prison. But maybe all the folks now protesting police abuses in Baltimore and elsewhere might consider urging police department to adopt such an approach to police discipline (with the monies, I would urge, going to victim restitution funds).
April 27, 2015 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentencing around the world | Permalink | Comments (4) | TrackBack
Wednesday, April 15, 2015
Canadian Supreme Court declares gun mandatory minimums unconstitutional
A helpful reader alerted me to a notable sentencing ruling from our northern neighbor reported in this press account headlined "Supreme Court quashes mandatory minimum sentences for gun crimes: Court upholds Ontario ruling that struck down mandatory minimum sentences of 3 and 5 years." Here are the basics:
The Supreme Court of Canada dealt the Harper government's tough-on-crime agenda a serious blow Tuesday by striking down a law requiring mandatory minimum sentences for crimes involving prohibited guns. The 6-3 ruling, penned by Chief Justice Beverley McLachlin, said the statute was unconstitutional as it upheld a 2013 Ontario Court of Appeal ruling that labelled the law cruel and unusual.
The ruling said the mandatory minimum sentence could ensnare people with "little or no moral fault" and who pose "little or no danger to the public." It cited as an example a person who inherits a firearm and does not immediately get a license for the weapon. "As the Court of Appeal concluded, there exists a 'cavernous disconnect' between the severity of the licensing-type offence and the mandatory minimum three-year term of imprisonment," McLachlin wrote for the majority.
Justice Minister Peter MacKay said in a statement that the government will review the decision to determine "next steps towards protecting Canadians from gun crime and ensuring that our laws remain responsive."...
Liberal Leader Justin Trudeau said there is a place for mandatory minimums in certain situations, noting that past Liberal governments have introduced them for "extreme crimes."
"But I think the over-use of them that the Supreme Court has highlighted, by this Conservative government, isn't necessarily doing a service to Canadians, both by not necessarily keeping us that much safer and also wasting large amount of taxpayers dollars on unnecessary court challenges," he told reporters in Oakville.
Keeping Canadians safe is cited by the government as the reason for its tough sentencing laws. McLachlin took aim at that justification in her ruling. "The government has not established that mandatory minimum terms of imprisonment act as a deterrent against gun-related crimes," she wrote. "Empirical evidence suggests that mandatory minimum sentences do not, in fact, deter crimes."
The court was deciding two appeals involving mandatory minimum sentences for gun crimes brought by the Ontario and federal attorneys general. The top court upheld the appeal court's quashing of both the three-year mandatory minimum for a first offence of possessing a loaded prohibited gun, as well as the five-year minimum for a second offence.
The Ontario and federal governments argued that the minimums do not breach the charter protection against cruel and unusual punishment. The new sentencing rules were enacted in 2008 as part of a sweeping omnibus bill introduced by the federal Conservatives.
The full ruling from the Supreme Court of Canada is available at this link.
April 15, 2015 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (3) | TrackBack
Tuesday, April 14, 2015
"Lex Mitior: Converse of Ex Post Facto and Window into Criminal Desert"
The title of this post is the title of this interesting and timely new piece on SSRN authored by Peter Westen. Here is the abstract:
In 2009 New Mexico prospectively repealed the death penalty. Three years later in 2012, New Mexico prosecuted a defendant for a capital murder that was committed before repeal, and it sought to subject him to the death penalty. If state prosecutors had prevailed with the jury, they would have secured the very kind of sentence — death — that state officials had been lauded in Europe for outlawing three years earlier.
A prosecution like New Mexico’s could never occur in Europe, and not merely because Europe has long outlawed the death penalty. It could never occur because, in contrast to the law of most American jurisdictions, European states embrace a doctrine known as “lex mitior” (“the milder law”). The latter doctrine is a counterpart to the ex post facto prohibition. Both doctrines both concern retroactivity in criminal law, but they are the converse of one another.
The ex post facto doctrine prohibits retroactivity by prohibiting the state from prosecuting persons under criminal statutes that either retroactively criminalize conduct that was hitherto lawful or retroactively increase penalties for conduct that, while unlawful all along, was hitherto punishable less severely. In contrast, lex mitior mandates retroactivity by mandating that criminal defendants receive the retroactive benefits of repealing statutes that either decriminalize conduct altogether or reduce punishments for it. After surveying laws in the United States regarding the retroactive effect of ameliorative repeals, the author addresses whether punishing offenders under harsher laws that obtained at the time of their conduct can serve consequentialist and/or retributive purposes of punishment. He concludes that, although doing can be morally justified under limited circumstances, typically it is not — a conclusion that bears upon lex mitior’s proper scope, whether it consists of a binding norm (as it is among European nations), a nonconstitutional norm (as it presently is within the United States), or, when legislative intent is uncertain, a function of the rule of lenity.
Thursday, April 02, 2015
Amnesty International reports on death penalty administration around the world
Via this webpage, Amnesty International provides a report in multiple languages on what it can confirm about the use of the death penalty throughout the world in 2014. This AI blog posting, headlined "Death Penalty: 607 executions – the story behind the numbers," provides some highlights from the report and some backstory:
The numbers behind our latest overview of the global use of the death penalty, released today, tell a chilling story: 607 people were executed in 22 countries and at least 2,466 men and women were sentenced to death in 55 countries in 2014 alone. But, alarming as they are, the figures paint a partial picture of the true extent to which people are hanged, shot or given the lethal injection across the world.
The reality is likely to be much gloomier but many governments refuse to come clean about how many people they kill each year. In countries such as Eritrea, Malaysia, North Korea and Syria, very little information about the use of the death penalty is available due to restrictive state practice or political instability.
In others, such as Japan, executions are carried out without notice, and prisoners are left waiting on death row every day wondering if it will be their last. In Belarus, the only country in Europe to still use the death penalty, family members of executed prisoners usually only find out the fate of their loved ones when they visit them at the prison only to be told their relative is no longer there.
China, the country believed to execute more individuals than the rest of the world put together, considers information about the death penalty a “state secret”, just like Vietnam. The Chinese authorities have claimed that the number of executions in the country has decreased since the Supreme People’s Court began reviewing all death penalty cases in 2007. Unfortunately, this claim is impossible to corroborate....
That is the “glass half empty”. But the story does not end there. Despite the alarming number of people sentenced to death and executed, most of the world is moving in the right direction - away from the ultimate punishment.
In 2014, the number of recorded executions dropped by almost 22% in comparison to 2013. Fewer executions were recorded in all regions, except Europe and Central Asia, in 2014 than in 2013.
In 1945, when the United Nations was founded, only eight countries had abolished the death penalty. Today 140 states are abolitionist in law or practice.
Friday, March 27, 2015
NY Times Magazine covers modern prisons at home and abroad
I am pleased to see that this week's New York Times Magazine has three significant pieces about prisons. Here are the headlines and teasers from this webpage:
The Radical Humaneness of Norway’s Halden Prison: The goal of the Norwegian penal system is to get inmates out of it.
Prison Planet: Different nations take very different approaches to the convicts they deem the most dangerous.
Inside America’s Toughest Federal Prison: For years, conditions inside the United States’ only federal supermax facility were largely a mystery. But a landmark lawsuit is finally revealing the harsh world within.
Monday, February 02, 2015
Getting a European perspective on crowded prisons
This new Wall Street Journal article, headlined "Overcrowding Puts Strains on Europe’s Century-Old Prisons," highlights that the US does not have the most densely populated prisons in the world even though we have the largest total prison population. Here are some details from the article:
While cities and states across the U.S. are selling off prisons as the inmate population shrinks, Europe faces the opposite challenge: how to cope with chronic overcrowding in old, cramped jails.
The fortresslike structure of Forest prison is in the otherwise chic Saint-Gilles district of Brussels. Built in 1910 to house 380 inmates, it currently holds 600, most of whom are awaiting trial. In two of the four wings, three inmates are held in 90-square-foot cells designed for one. Two share bunk beds while the third has a mattress on the floor. They eat there and share a toilet. In the other half, prisoners have individual cells but no running water. They must relieve themselves in a bucket that can go unemptied for 48 hours....
“It is medieval,” said Vincent Spronck, who became warden four years ago after a decade working in other prisons. “I didn’t know these conditions still existed until I got here.” The problem isn’t limited to Forest or even Belgium.
In central London, the 170-year-old Pentonville Prison houses 1,303 men in a space designed for 913. An official report found “significant, easily visible vermin infestations,” dirty cells, and rampant drug abuse, and suggested shutting it down.
La Modelo in Barcelona, built in 1904, held 1,781 inmates in space designed for 1,100 when it was last inspected by a team from the intergovernmental Council of Europe, the continent’s human-rights watchdog. Lisbon Central Prison (built 1885) has an official capacity of 886, but was holding 1,310 prisoners in May 2013. Korydallos Prison, built in the 1960s in Athens, should hold 840 people, but held 2,300 in April 2013.
“The whole structure is in a state of crisis,” said Hugh Chetwynd, head of division for the Council of Europe’s Committee for the Prevention of Torture. Overcrowding means “staff struggle to keep proper control, so they resort more to excessive force.” Prison populations per capita are growing in most European countries....
One solution is to send prisoners abroad. Belgium pays €43 million ($48 million) a year to the Netherlands to hold 600 prisoners over the border in a former military barracks in Tilburg. Belgium and Italy, which also has a long-term overcrowding problem, are building new prisons, but some experts argue this doesn’t resolve the problem. “You build big prisons…that leads to higher population rates,” said Peter Bennett, who was warden at four prisons before becoming director of the London-based ICPS. “All the research shows that sending people to prison doesn’t reduce the crime rate.”
Still, while there appears to be no strong relationship across countries between incarceration and crime rates, the crime rate in the U.K. has fallen as the prison population has risen. Peter Cuthbertson, director of the Center for Crime Prevention, said taking serial criminals off the streets cuts crime. “If you don’t do anything else,” he said, a criminal “can easily end up committing hundreds of crimes a year.” He said that longer sentences reduce recidivism rates and while overcrowding isn’t ideal, his solution is to build more prisons.
Thursday, January 29, 2015
George Toca now a free man ... and SCOTUS now lacks a live Miller retroactivity case
This local article from Louisiana, headlined "George Toca, La. inmate at center of debate on juvenile life sentences, to go free," reports on a remarkable turn of events in a case that was supposed to serve as the means for the Supreme Court to address the retroactivity of its Eighth Amendment Miller ruling. Here are the details:
A state prisoner from New Orleans who recently landed at the center of national legal debate about mandatory life sentences for youthful offenders won his freedom Thursday after 31 years in prison. Orleans Parish District Attorney Leon Cannizzaro’s office agreed to vacate his murder conviction.
George Toca, 47, is set to go free after pleading guilty instead to two counts of attempted armed robbery and one count of manslaughter from a 1984 stickup that ended with his best friend, Eric Batiste, fatally shot outside a convenience store on South Broad Street in Broadmoor.
Toca’s release almost certainly means the U.S. Supreme Court will scrap a scheduled hearing this spring on whether its 2012 decision in a case known as Miller v. Alabama, barring mandatory life sentences for juvenile convicts, is retroactive. The high court in November took up Toca’s case, above others, to settle an issue that affects about 1,000 convicts in Louisiana and three other states that have refused to apply the court’s ruling to older juvenile lifers.
A spokesman for Cannizzaro’s office said the DA will join in a motion with Toca’s attorneys to withdraw the Supreme Court case.
Toca, appearing briefly in court Thursday morning, pleaded guilty to the manslaughter count under an “Alford” plea, meaning he did not admit guilt but conceded that strong evidence could have led to his conviction. He returned to Angola State Penitentiary for processing, with his release expected late Thursday or Friday.
Newly elected Criminal District Court Judge Byron Williams granted the joint motion in a case that the Innocence Project New Orleans had pursued on Toca’s behalf for more than a decade. DA’s Office spokesman Christopher Bowman credited a warming relationship with Innocence Project attorneys, along with Toca’s productive years behind bars, for the decision to let him go free on the reduced charges.
Bowman called it “a just outcome,” also citing the vehemence of Batiste’s family in urging Toca’s release and the fact he will remain on parole for another 30 years under the deal. “In light of all those facts, the district attorney believed he was no longer a public safety risk,” Bowman said. “The District Attorney’s Office ... is not afraid to take a look at older cases.”...
Bowman insisted that the DA’s decision to come to a deal on Toca’s release was unrelated to the pending U.S. Supreme Court case, in which Cannizzaro’s office had been gearing up to argue against the retroactive application of Miller v. Alabama.
The high court didn’t ban states from sentencing some young killers to life without parole. But the 5-4 majority opinion insisted that courts must first weigh a defendant’s youth, adding that “we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” The court said “youth matters for purposes of meting out the law’s most serious punishments,” citing “children’s diminished culpability and heightened capacity for change” when compared with adults.
In legal filings, Cannizzaro’s office argued that it would be a fool’s errand to force local judges, years or decades later, to discern a long-ago juvenile’s capacity for change. Advocates for juvenile lifers argued that the task would be made easier because judges can review an inmate’s record while behind bars. And they saw Toca’s case as a promising bellwether for what the high court justices might do....
According to the state, 272 Louisiana inmates had been sentenced as juveniles to life without the possibility of parole as of April 2013 — the bulk of them, like Toca, having been sentenced before the U.S. Supreme Court decision. State Supreme Courts in Pennsylvania, Michigan and Minnesota also have found that Miller v. Alabama does not apply retroactively, setting up the fight at the U.S. Supreme Court.
Toca’s vacated conviction and release will leave the issue unresolved for now, said Cara Drinan, an associate professor of law at Catholic University of America. Still, she expects the Supreme Court to take up the retroactivity question relatively soon in some other case, now that it has signaled its interest in settling the issue. “For George Toca, this is a victory and a great thing,” Drinan said. “For those of us looking at the bigger issue, and for the hundreds of people waiting for a resolution, we’ll have to wait.”
With overwhelming public support, Japanese Justice Minister continues with capital punishment
As reported in this news article, "Japan is to continue applying the death penalty after over 80 percent of the country's population expressed their support for the measure, media Thursday cited Justice Minister Yoko Kamikawa as saying." Here is more:
A recent government survey revealed that 80.3 percent of respondents backed the death penalty, while 9.7 percent felt that it should be abolished. Kamikawa termed the results as positive and said strict and careful measures would continue in this regard.
She said there was no intention of revising the current policy in the short term, despite having hinted at times the possibility of introducing life sentences for capital crimes. "Most people believe it is unavoidable for those who committed extremely malicious crimes to face (execution)," Kamikawa said, according to the Asahi daily newspaper.
Kamikawa also made a reference to the global trend against the death penalty and the petition by activists for Japan to end capital punishment. "It is a problem associated with what country Japan should be, and it is (the Japanese people's) business," she said.
Eleven convicts have been executed since the current government took office in December 2012. Japan, along with the US, is the only developed and democratic country that still imposes the death penalty.
I tend also to include India on a list of "developed and democratic country that still imposes the death penalty," but maybe some would dispute characterizing India as developed.
Wednesday, January 28, 2015
Notable political debate over adding LWOP to punishments in Canada
The lengthy press article from Canada, headlined "Tories to table life in prison without parole, shifting legal landscape," spotlights an interesting debate over LWOP sentences up north. Here are excerpts:
The Conservative government is developing legislation that would mean some murderers will have no hope of release from prison. The new penalty would apply to several categories of those convicted of first-degree murder: killers of police and jail guards, anyone who kills during a sexual assault, kidnapping or act of terrorism and for especially brutal murders. The current penalty for first-degree murder is an automatic life sentence with the first chance for a parole review after 25 years, and the supervision of parole authorities for life.
The planned legislation has yet to be approved by cabinet, a source said. The departments of Public Safety and Justice, which are working together on the new bill, were told to speed up their work after a man shot two Mounties in St. Albert, Alta., on Jan. 17, killing one. The bill is expected to be introduced within a couple of weeks of a new terrorism bill coming on Friday, the source said....
A spokesperson for Justice Minister Peter MacKay declined to comment directly on the categories outlined by The Globe, but quoted the Throne Speech of October, 2013, saying: “Canadians do not understand why the most dangerous criminals would ever be released from prison. We are currently reviewing options to ensure that a life sentence actually means life.”...
The United States is one of the last democracies with the death penalty, and all states but Alaska have the penalty of “life without parole.” The U.S. Supreme Court says life without parole shares some characteristics with the death penalty in that it alters an offender’s life by a “forfeiture that is irrevocable.” Prisoner advocates have dubbed it “the other death penalty,” and “death by incarceration.”
Since Canada abolished the death penalty in 1976, the homicide rate has fallen from 3.08 victims for every 100,000 people to 1.44, its lowest rate since 1966. “It is so patently a sentence that reeks of vengeance that it’s hard to have a sensible political debate,” Archie Kaiser, a specialist in criminal law at Dalhousie’s Schulich School of Law in Halifax, said of life without parole. Vengeance is “really something we have cast aside in Canada, at least since we removed the death penalty.”
Gary Clewley, a defence lawyer in Toronto whose clients are mostly police officers, said the law professor “confuses vengeance with legitimate public indignation. You can’t compare a trial and appellate process at great public expense where people are guaranteed legal counsel and a trial of their peers to a lynch mob.”...
Until now, the Conservative government has taken an incremental approach to life penalties. In 2011, it removed the “faint-hope clause,” which allowed those convicted of murder to apply to a jury after 15 years for the right to an early parole hearing. Also in 2011, it allowed judges to add together the periods of parole eligibility for multiple murders. Two Canadians have been sentenced under the provision, including Justin Bourque, 24, sentenced to life with no eligibility for 75 years in the shooting deaths of three Mounties in New Brunswick last spring....
The cost could be enormous: Canada has 1,115 offenders who were sentenced to life for first-degree murder, of whom 203 have been released on parole; the average cost to keep a man in maximum security is $148,000, compared with $35,000 on parole, figures from Correctional Service Canada show. Forty years in jail would cost nearly $6-million for one person in maximum-security, and $6-billion for 1,000.
As of 2006, lifers on parole had killed 58 people. That category includes those such as Robert Bruce Moyes, sentenced to life as an armed bank robber, who, while on parole killed seven people in Abbotsford, B.C., in 1996. In recent years, the website of Correctional Service Canada has described those serving life sentences as “the most likely to succeed on parole.” A spokesperson said on Monday the agency could not identify, for privacy reasons, the last first-degree murderer released on parole who killed again, nor how many have done so since 1976.
Monday, January 26, 2015
"The Unconvincing Case Against Private Prisons"
The title of this post is the title of this intriguing recent article by Malcolm M Feeley just now appearing on SSRN. Here is the abstract:
In 2009, the Israeli High Court of Justice held that private prisons are unconstitutional. This was more than a domestic constitutional issue. The court anchored its decision in a carefully reasoned opinion arguing that the state has a monopoly on the administration of punishment, and thus private prisons violate basic principles of modern democratic governance. This position was immediately elaborated upon by a number of leading legal philosophers, and the expanded argument has reverberated among legal philosophers, global constitutionalists, and public officials around the world. Private prisons are a global phenomenon, and this argument now stands as the definitive principled statement opposing them.
In this Article, I argue that the state monopoly theory against privatization is fundamentally flawed. The Article challenges the historical record and philosophy of the state on which the theory is based, and then explores two other issues the theory wholly ignores: private custodial arrangements in other settings that are widely regarded as acceptable if not exemplary and third-party state arrangements that are universally hailed as exemplary.
The Article presents first-of-its-kind empirical data on private prisons in Australia, discusses the implications of readily available information on juvenile facilities, and explores interstate compacts on prisoner transfers. The Article maintains that the state monopoly theory erroneously asserts that privatization is inconsistent with the modern state, and concludes with a call for policymakers and judges to imbue their future privatization decisions with local knowledge and time-honored pragmatism.
Sunday, January 04, 2015
"Switzerland has too many criminals and too few prisons"
The title of this post is from the first sentence of this recent AP article headlined "Switzerland mulls plan to export prisoners." Here is more about a notable European nation having a problem all to common in the US:
Now the Justice Ministry is reportedly considering a proposal to export convicts to neighboring France and Germany. Swiss prisons chief Thomas Freytag told public broadcaster SRF in a program aired late Friday that the country's correctional facilities are at more than 100 percent capacity.
Prisons in the French-speaking cantons (states) of western Switzerland are said to be particularly overcrowded. It's unclear when the Justice Ministry would decide on the plan, and whether France or Germany would be prepared to let Swiss inmates do their time there.
Left out of this brief story is the basic fact that Switzerland, at recent count, has less than 7,000 prisoners in the whole country and an incarceration rate that is only about 1/8th of the incarceration rate in the United States. For comparison, consider that the US state of Virginia has a state-wide population that is a little lower than Switzerland's, but it has more than 30,000 prisoners (and that count excludes a few thousand federal prisoners coming from Virginia).
Wednesday, December 03, 2014
Praise for Texas justice embracing "Right on Crime" from across the pond
This new BBC article, headlined "Why Texas is closing prisons in favour of rehab," provides a notable example of the rest of the world taking note (and praising) the "right on crime" movement. The piece is authored by a Danny Kruger, a former speechwriter for UK's prime minister David Cameron, and here are excerpts:
Coming from London to spend a couple of days in Texas last month, I was struck most of all by how generous and straightforward everyone was. Talking to all sorts of different people about crime and punishment, the same impression came across: We expect people to do the right thing and support them when they do. When they don't we punish them, but then we welcome them back and expect good behaviour again. It's not naive, it's just clear.
For years that straightforward moral outlook translated into a tough criminal justice system. As in the rest of the US, the economic dislocations of the 1970s, compounded by the crack epidemic in the 1980s, led to a series of laws and penal policies which saw the prison population skyrocket. Texas, for instance, has half the population of the UK but twice its number of prisoners.
Then something happened in 2007, when Texas Republican Congressman Jerry Madden was appointed chairman of the House Corrections Committee with the now famous words by his party leader: "Don't build new prisons. They cost too much." The impulse to what has become the Right on Crime initiative was fiscal conservatism — the strong sense that the taxpayer was paying way too much money to fight a losing war against drugs, mental ill-health and petty criminality.
What Madden found was that too many low-level offenders were spending too long in prison, and not reforming. On the contrary, they were getting worse inside and not getting the help they needed on release. The only response until then, from Democrat as well as Republican legislators, was to build more prisons. Indeed, Mr Madden's analysis suggested that a further 17,000 prisoners were coming down the pipe towards them, requiring an extra $500m (£320m) for new prisons.
But he and his party didn't want to spend more money building new prisons. So they thought of something else — rehab. Consistent with the straightforward Texan manner, the Congressional Republicans did not attempt to tackle what in Britain are known as "the causes of crime" — the socio-economic factors that make people more disposed to offend. Instead, they focused on the individual criminal, and his or her personal choices. Here, they believe, moral clarity and generosity are what's needed.
Though fiscal conservatism may have got the ball rolling, what I saw in Texas — spending time in court and speaking to offenders, prison guards, non-profit staff and volunteers — goes way beyond the desire to save money. The Prison Entrepreneurship Programme, for instance, matches prisoners with businesspeople and settles them in a residential community on release. Its guiding values are Christian and its staff's motives seem to be love and hope for their "brothers", who in turn support the next batch of prisoners leaving jail.
The statutory system is not unloving either. Judge Robert Francis's drugs court in Dallas is a well-funded welfare programme all of its own — though it is unlike any welfare programme most of the 250 ex-offenders who attend it have ever seen. Clean and tidy, it is staffed by around 30 professionals who are intensely committed to seeing their clients stay clean and out of jail, even if that means sending them back to prison for short periods, as Judge Francis regularly does when required....
Immediate, comprehensible and proportionate sanctions are given for bad behaviour, plus accountability to a kind leader and supportive community. This is the magic sauce of Right on Crime.
Far from having to build new jails for the 17,000 expected new inmates, Jerry Madden and his colleagues have succeeded in closing three prisons. I visited one by the Trinity River in Dallas, now ready for sale and redevelopment. They spent less than half the $500 million earmarked for prison building on rehab initiatives and crime is falling faster than elsewhere.
This, then, ticks all the boxes - it cuts crime, saves money and demonstrates love and compassion towards some of the most excluded members of society. It is, in a sense, what conservatives in America and Britain dream of — a realistic vision of a smaller state, where individuals are accountable for their actions and communities take responsibility for themselves and their neighbours. It is a more positive version of the anti-politics — anti-Washington, anti-Westminster — tide that seems to be sweeping the West.
December 3, 2014 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (1) | TrackBack
Monday, October 27, 2014
Prosecutors in South Africa indicate they plan to appeal Pistorius outcome
As reported in this article, headlined "South Africa prosecutors to appeal against Pistorius sentence," it appears that the Blade Runner is not done running from serious legal difficulties. Here are the bascis:
South Africa’s state prosecutor plans to appeal against Oscar Pistorius’s culpable homicide conviction and five-year prison sentence for shooting his girlfriend Reeva Steenkamp, it said on Monday.
Nathi Mncube, spokesman for the National Prosecuting Authority, said the NPA expected to file papers in the next few days. Until the papers were filed, it would not announce the grounds for appeal, it said.
But Pistorius’s conviction for culpable homicide has drawn criticism from some legal commentators. After the athlete, a double-amputee who starred at the 2012 London Olympics and Paralympics, was sentenced last week, there was more controversy when lawyers said he could serve as little as 10 months, or a sixth of the five-year term.
In South Africa, an appeal can only be made on a matter of law, “where we think . . . the judge made an error in interpretation and in the manner in which she applied the law to the facts”, Mr Mncube said.
Pistorius had been charged with premeditated murder after shooting Steenkamp, a 29-year-old model and law graduate, four times through the locked toilet door in a bathroom at his home in the early hours of Valentine’s Day last year. But Judge Thokozile Masipa ruled that the prosecution failed to show Pistorius had intent to kill, while saying there was “no basis on which this court could make inferences of why the accused would want to kill the deceased”. Instead, she appeared to believe Pistorius’s version of events, despite describing the 27-year-old as a “poor” and “evasive” witness.
Thursday, October 23, 2014
"How Changes in American Culture Triggered Hyper-Incarceration: Variations on the Tazian View"
The title of this post is the title of this notable new paper by Christopher Slobogin now available via SSRN. Here is the abstract:
American imprisonment rates are far higher than the rates in virtually every Western country, even after taking into account differing rates of crime. The late Professor Andrew Taslitz suggested that at least one explanation for this puzzle is the relative lack of “populist, deliberative democracy” in the United States.
This article, written for a symposium honoring Professor Taslitz, examines that thesis from a comparative perspective, looking in particular at how differences between American and European attitudes toward populism, capitalism, religiosity, racial attitudes and proceduralism may have led to increased incarceration rates. It also tries to explain another puzzle that has received little attention: why these cultural differences, which have existed for some time, only had an impact on incarceration rates after the 1960s.
Wednesday, October 22, 2014
Graphic representation of female prisoners around the world
I just tripped across this interesting piece and infographic published last month via Forbes. The piece is headlined "Nearly A Third Of All Female Prisoners Worldwide Are Incarcerated In The United States," and here is the text that goes along with the infographic:
According to the International Centre for Prison Studies, nearly a third of all female prisoners worldwide are incarcerated in the United States of America. There are 201,200 women in US prisons, representing 8.8 percent of the total American prison population.
China comes a very distant second to the United States with 84,600 female prisoners in total or 5.1% of the overall Chinese prison population. Russia is in third position -- 59,000 of its prisoners are women and this comes to 7.8 percent of the total.
Across the world, 625,000 women and children are being held in penal institutions with the female prison population growing on all five continents.
Tuesday, October 21, 2014
Bladerunner Oscar Pistorius sentenced to five years in prison for killing girlfriend
As reported in this lengthy CNN piece, "Oscar Pistorius' fall from grace culminated Tuesday with a five-year sentence in the shooting death of his girlfriend." Here is more:
The sentence was imposed for the charge of culpable homicide, which in South Africa means a person was killed unintentionally, but unlawfully. Under South African law, he will have to serve at least one-sixth of his sentence -- 10 months -- before he can ask to be placed under correctional supervision, usually house arrest, instead....
During his trial, the double-amputee sprinter often sobbed at the mention of his girlfriend Reeva Steenkamp's name. He insisted that he mistook her for an intruder when he shot her through a toilet door on Valentine's Day 2013. But there was very little visible reaction from Pistorius as the sentence was read out in the Pretoria court.
Speaking to CNN's Robyn Curnow in the last few weeks before his sentencing, Pistorius told her that he would respect and accept the decision of the court and that he was not afraid of imprisonment. He said he hoped to contribute while in prison by teaching people how to read or start a gym or running club. "Oscar will embrace this opportunity to pay back to society," his uncle, Arnold Pistorius, told reporters. "As an uncle, I hope Oscar will start his own healing process as he walks down the path of restoration. As a family, we are ready to support and guide Oscar as he serves his sentence."
The Steenkamp family's lawyer, Dup De Bruyn, said in a statement: "The family is satisfied. They are glad that it is over and are satisfied that justice has been done."
The prosecution had asked for a minimum prison sentence of 10 years for Pistorius. After the ruling Tuesday, South Africa's National Prosecuting Authority said it had not yet decided whether to appeal Judge Thokozile Masipa's verdict that he is not guilty of murder. Pistorius' defense had called for a sentence of house arrest and community service. There was no immediate reaction from the defense team on the sentencing. Both sides now have a 14-day period in which they can choose to lodge any appeal, according to CNN legal analyst Kelly Phelps....
Giving her reasoning Tuesday, Masipa emphasized that the decision on sentencing would be "mine and mine alone." She pointed out that sentencing is not an exact science but relies on an assessment of elements, including the nature and seriousness of the crime, the personal circumstances of the accused and the interests of society.
She said she would also take into account the factors in sentencing of retribution, deterrence and rehabilitation. In any case, she said, "sentencing is about achieving the right balance."
In her final remarks, Masipa dismissed evidence given by probation officer Annette Vergeer that prison would not be able to accommodate Pistorius' disability, saying her testimony was based on outdated information and sketchy. She said Pistorius would not present the prison system with an "insurmountable challenge."
The judge added that she felt that Pistorius' vulnerability had been overemphasized in the evidence given and that his excellent coping strategies -- shown in his ability to compete with able-bodied athletes -- had been overlooked. He would be able to continue treatment for physical problems and mental health issues while in prison, she said.
In terms of the seriousness of the offense, Masipa said Pistorius had shown gross negligence in shooting into a small toilet cubicle, knowing there was someone inside who could not escape. He also knew how to handle firearms, she said, adding that these were "very aggravating" factors.
On the other hand, mitigating factors include that Pistorius is a first offender and remorseful, Masipa said. She also mentioned his contribution to society in giving his time and money to charities and inspiring others with disabilities to believe they could succeed.
Perhaps seeking to preempt criticism from those who'd like to see either a tougher or more lenient sentence, Masipa pointed out that the purpose of the court is to serve the public interest, not make itself popular. She also indicated that her sentence wasn't affected by Pistorius' fame. "It would be a sad day for this country if the impression was to be created that there was one law for the poor and disadvantaged and another for the rich and famous," she said.
The judge also highlighted the loss suffered by Steenkamp's family, which has had a negative effect on her father's health. Steenkamp was young, vivacious and full of life at the time of her death, she said. "The loss of life cannot be reversed. Nothing I say or do today can reverse what happened," she said.
Previous related post:
October 21, 2014 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (2) | TrackBack
Monday, October 13, 2014
"Will Oscar Pistorius serve any prison time for killing Reeva Steenkamp?"
The question in the title of this post is the first line of this AP article headlined "Factors that may affect if Pistorius spends time in prison." Because I know very little about South African sentencing law and procedure, I found this AP article quite informative, and here are excerpts:
Judge Thokozile Masipa began hearing testimony Monday before deciding what sentence the double-amputee Olympic athlete should serve. Pistorius was acquitted of murder in Steenkamp's shooting death but convicted of a lesser charge of culpable homicide, or killing Steenkamp through negligence. It has a wide range of possible sentences in South Africa, from a fine and no prison time to as much as 15 years in jail....
Judge Masipa will hear testimony from a small number of witnesses called by the defence and then prosecution before deciding on Pistorius' sentence. The defence began presenting witness testimony on Monday, arguing why the judge should be lenient. Prosecutors could call Steenkamp's family members to show that Pistorius should be sent to prison for years because of the suffering he has caused....
Pistorius' lawyers cited what they say is his remorse and previous good character as reasons for a lenient sentence. Defence lawyers began by calling a psychologist who has counselled the athlete since he killed Steenkamp. Dr. Lore Hartzenberg testified that Pistorius was a "broken man" wracked with grief following the shooting, and had lost his reputation, his friends and his career. The defence hopes her testimony -- which focused on what she said was Pistorius' emotional pain following an accidental killing -- will help persuade Masipa that Pistorius is remorseful, has suffered already and shouldn't be sent to prison because he needs ongoing therapy.
Prosecutor Gerrie Nel countered that Pistorius was "still alive" and Steenkamp wasn't and that should be considered....
Pistorius' work with charities before the Feb. 14, 2013 shooting was listed extensively by his agent, Peet van Zyl, who was also called by the defence. Van Zyl's testimony was designed to paint the Paralympic champion as a generally good person who had no previous criminal record. He also said that Pistorius had lost all his athletics endorsements because of the court case and had already been punished financially.
A social worker from South Africa's department of correctional services was the only one of the three defence witnesses who testified on the first day of the hearing to suggest a sentence. Joel Maringa said three years of "correctional supervision" would be appropriate, where Pistorius would be partly under house arrest and have to do community service, but would also be able to train and attend athletics meets.
Nel fiercely criticized that suggestion, saying it was "shockingly inappropriate" after Pistorius killed someone. The prosecution, which sought a murder conviction, has insisted that Pistorius should go to prison because of the level of negligence he displayed when he fired four hollow-point bullets through a toilet cubicle door in his home and into a small space without checking who was inside.
Masipa's options are wide-ranging: She could order a fine and a suspended prison sentence, meaning the 27-year-old Pistorius spends no time in jail unless he offends again. But she could also sentence him to up to 15 years in prison. In between those two scenarios, Masipa could order he be put under house arrest for a period. Pistorius could apply for parole after serving half of any prison sentence.
Wednesday, October 08, 2014
Criticizing the tenure of AG Eric Holder based on the death penalty as a human rights issue
This extended New Republic commentary authored by Mugambi Jouet, somewhat inaccurately titled "What Eric Holder — and Most Americans — Don't Understand About the Death Penalty," takes shots at Holder's specific record on the death penalty:
Attorney General Eric Holder's recent resignation announcement prompted a flurry of assessments on his six years of service under President Obama. He let Wall Street off too easy. He was a hero to the poor. He compromised civil liberties in the name of national security—and defended civil rights better than any attorney general before him. But the debate over Holder’s record has overlooked one of the most important aspects of his legacy. Holder has been profoundly at odds with the rest of the Western world on one of the most significant human rights issues of our time: the death penalty.
All Western democracies except America have abolished capital punishment and consider it an inherent human rights violation. America further stands out as one of the countries that execute the most people. Thirty-nine prisoners were executed by the United States in 2013. While that figure marked a continuing decline in the annual number of U.S. executions, it still placed America fifth worldwide, right behind several authoritarian regimes: China, Iran, Iraq, and Saudi Arabia.
No federal prisoner has been executed since 2003, yet Holder’s decisions could ultimately lead this de facto moratorium to end, as he authorized federal prosecutors to pursue capital punishment in several dozen cases. "Even though I am personally opposed to the death penalty, as Attorney General I have to enforce federal law," Holder has argued. Prosecutors actually have the discretion not to pursue the death penalty at all — at the risk of losing popularity — since enforcing the law does not require pursuing capital punishment as opposed to incarceration....
Holder notably approved the decision to seek the death penalty in the federal trial of Dzhokhar Tsarnaev, who is accused of perpetrating the Boston Marathon bombings of 2013 — and whom a majority of Americans want to be executed. Nevertheless, the state of Massachusetts has abolished the death penalty and only 33 percent of Boston residents support executing Tsarnaev as opposed to sentencing him to life in prison without parole. However, Holder’s decisions supporting capital punishment have hardly been limited to terrorism cases. For example, he authorized the recent decision to seek the death penalty for Jessie Con-Ui, a Pennsylvania prisoner accused of murdering a federal correctional officer....
The death penalty is rarely framed as a human rights issue in America, unlike in other Western democracies. That's partly because the principle of human rights plays a very limited role overall in the legal and political debate in the U.S., where "human rights" commonly evoke foreign problems like abuses in Third World dictatorships — not problems at home.
The situation is different on the other side of the Atlantic, where the European Court of Human Rights tackles a broad range of problems facing European states, from freedom of speech to labor rights, discrimination, and criminal justice reform. National human rights commissions also exist in multiple countries, including Australia, Denmark, France, Germany, and New Zealand. These bodies focus mostly or exclusively on monitoring domestic compliance with human rights standards. On the other hand, the Tom Lantos Human Rights Commission, an arm of the U.S. Congress, focuses on the human rights records of foreign countries.
The relative absence of human rights as a principle in modern America is remarkable given how U.S. leaders actively promoted the concept in its infancy. President Franklin Delano Roosevelt invoked “human rights” in his “Four Freedoms Speech” of 1941. Eleanor Roosevelt was among the architects of the Universal Declaration of Human Rights of 1948. As the human rights movement progressed in later decades, Martin Luther King said in 1968 that “we have moved from the era of civil rights to the era of human rights.”
Even though Holder regards King as one of his models — and despite his proposals to make the U.S. penal system less punitive and discriminatory — the nation’s first black attorney general hardly put human rights at the center of his agenda.
The death penalty is far from the only human right issue where America stands apart from other Western democracies. America effectively has the world’s top incarceration rate, with 5 percent of the world’s population but 25 percent of its prisoners. America is likewise virtually alone worldwide in authorizing life imprisonment for juveniles. Its reliance on extremely lengthy periods of solitary confinement has been denounced by the U.N. Special Rapporteur on Torture. The extreme punishments regularly meted to U.S. prisoners are generally considered flagrant human rights violations in other Western countries. Nevertheless, Holder argued that America has “the greatest justice system the world has ever known.”
By the same token, no other modern Western democracy has gone as far as America in disregarding international human rights standards as part of anti-terrorism measures. This trend has been epitomized by indefinite detention at Guantanamo and the torture of alleged terrorists under the Bush administration. These practices have sharply divided U.S. public opinion but only a segment of Americans have depicted them as “human rights” abuses....
[T]he limited weight of human rights in the U.S. legal and political debate is not without consequences. Human rights are a far stronger basis to oppose practices like the death penalty or torture than the administrative arguments frequently invoked in America. The human rights argument against such practices is largely based on the premise that they violate human dignity....
Holder's narrow focus on problems with the administration of capital punishment suggests that he is among the many U.S. public officials and reformers who believe they have no duty to assess the “moral” issues regarding the death penalty. Whether this stance is justified or not, it seems quite exceptionally American in the modern Western world. Most contemporary European, Canadian, Australian, and New Zealander jurists probably would disagree with the notion that it is not their duty to assess whether executions violate human dignity.
Martin Luther King, who considered the death penalty an affront to human dignity, argued that “a genuine leader is not a searcher for consensus but a molder of consensus.” Perhaps Eric Holder — and his boss, Barack Obama — would have been willing to argue that the death penalty is dehumanizing if they did not fear losing popularity.