Sunday, April 13, 2014

Is SCOTUS now no longer all that interested in criminal justice issues?

The question in the title of this post is prompted by this chart concerning the make-up of the Supreme Court's merits docket this Term from the latest Stat Pack put together by the folks at SCOUTSblog.  The chart highlights that nearly 75% of the merits docket this Term involves civil cases.  In addition, this SCOTUSblog list of cert grants for October 2014 reveals that only one of nine grants for the next Term involves a criminal law issue (and that issue, as noted here, seems stunningly minor).

When Justices Alito and Sotomayor first joined the Court, it seemed as though they brought some extra interest and extra attention to the criminal justice part of the SCOTUS docket.  But of late it seems as though the Court is more eager to avoid rather than take up some important criminal justice matters.

Notably, there are any number of big lurking criminal justice issues relating to the Second (right to carry), Fourth (GPS tracking), Sixth (applications of Apprendi and Booker) and Eighth Amendments (applications of Graham and Miller).  I have an inkling that some of these matters will end up on the October 2014 docket, but this post perhaps highlights that I have a hankering for some more major criminal cases to be on the docket.

April 13, 2014 in Sentencing around the world, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, April 05, 2014

"Is the Death Penalty Starting to Make a Global Comeback?"

The title of this post is the headline of this intriguing Slate commentary.  Here are excerpts:

An Indian court today sentenced three men to death for the horrific gang rape of a photojournalist in Mumbai last year.  They are the first to be sentenced under India’s tough new anti-rape law.

The sentence hammers home something that’s been obvious for some time now: After appearing to be on the verge of abolishing the death penalty entirely, India has now firmly rejoined the ranks of the world’s executioners.  It’s one of a number of countries — including some of the world’s largest democracies — that have recently re-embraced capital punishment.

A 1983 Indian Supreme Court decision allows for capital punishment in only the “rarest of the rare” cases, and from 2004 to 2011 the country didn’t carry out any executions at all. From 1995 to 2012, it carried out only three.  Then in 2012, Ajmal Kasab, the last surviving gunman of the 2008 Mumbai terror attack, was hanged in secret in what appeared to be an unusually swift and haphazard execution.  The Kashmiri militant Afzal Guru was hanged under similar circumstances last year.  Seventy-two people in total were sentenced to die in India last year, including four of the men involved in the gang rape and murder of a 23-year-old medical student in Delhi in 2012 — a case that shocked the country and prompted the drafting of laws aimed at speeding up the prosecution of rapists.

India’s not the only country heading in this direction. Amnesty International’s 2013 death penalty report noted that executions were up 15 percent last year — and that’s not even counting China, where the number of executions is a state secret.  Just three countries — Iran, Iraq, and Saudi Arabia — accounted for 80 percent of executions, but to my mind, the most interesting recent trend has been been the countries that, like India, have been bucking the general global movement away from the death penalty.

In 2012 Japan carried out its first executions since 2010. Under Prime Minister Shinzo Abe, four rounds of “secret executions” have taken place.  Nigeria carried out its first executions in seven years last year and Indonesia its first in five years.  Vietnam resumed them after an 18-month pause with the execution of seven people by lethal injection.

It’s true that in terms of number of countries, the world is moving away from the death penalty. According to Amnesty’s numbers, 37 countries had the death penalty in 1994, compared with 22 today.  In Europe and Latin America, the practice has essentially been entirely banished and an increasing number of African countries are reviewing their laws.

On the other hand, with the exception of Brazil, where it’s banned, and Russia, where it’s legal but abolished in practice, the world’s 10 biggest countries are all death penalty states.  With India, Japan, and Indonesia rejoining the U.S., the world’s largest democracies are death penalty countries and the practice has heavy popular support in all of them.

UPDATE: This interesting international article highlights related death penalty developments under the headline "Vietnam is sentencing corrupt bankers to death, by firing squad."

April 5, 2014 in Death Penalty Reforms, Sentencing around the world, Who Sentences? | Permalink | Comments (11) | TrackBack

Thursday, March 27, 2014

"Global Executions Rise With Help From Iran and Iraq"

The title of this post is the headline of this new piece via Time reporting on new worldwide execution data assembled by Amnesty International. Here are the basics:

A steep rise in the number of people executed in Iran and Iraq caused the total number of executions worldwide to rise 15 percent last year, Amnesty International said Thursday. Almost 80 percent of all known executions were recorded in only three countries: Iraq, Iran and Saudi Arabia. In 2013, the number of executions in Iraq went up to 169, while Iran saw them rise to 369. At least 778 people were put to death in 2013, the rights group said, compared to 682 in 2012.

China is still thought to execute the most people, though exact numbers are kept secret. Kuwait, Nigeria, Indonesia and Vietnam last year all resumed their use of capital punishment. But there has been a general decline in the total number of countries using capital punishment in the last 20 years. Many countries who executed people in 2012 did not do so in 2013, including Gambia, Pakistan and the United Arab Emirates.

March 27, 2014 in Death Penalty Reforms, Sentencing around the world | Permalink | Comments (16) | TrackBack

Tuesday, January 07, 2014

Notable (and amusing?) account of an execution method gone to the dogs

In various settings, some folks are quick to point out that the United States is uniquely punitivie in its use of imprisonment compared to all other nations in the world and also that the United States is one of the few nations in the western world to make continued and somewhat regular use of the death penalty.  And advocates for sentencing and corrections reform (myself included) sometimes contend that the US ought to try to learn from the policies and practices of other nations.  These realities came to mind when I read this notable recent article sent my way by a helpful reader reporting on a recent high-profile sentencing and punishment in another part of the world:

The execution of Jang Song Thaek, the No. 2 man in North Korea, took Beijing by surprise and will adversely affect bilateral relations. Beijing's displeasure is expressed through the publication of a detailed account of Jang's brutal execution in Wen Wei Po, its official mouthpiece, in Hong Kong, on Dec 12.

According to the report, unlike previous executions of political prisoners which were carried out by firing squads with machine guns, Jang was stripped naked and thrown into a cage, along with his five closest aides.  Then 120 hounds, starved for three days, were allowed to prey on them until they were completely eaten up. This is called "quan jue", or execution by dogs.

The report said the entire process lasted for an hour, with Mr Kim Jong Un, the supreme leader in North Korea, supervising it along with 300 senior officials. The horrifying report vividly depicted the brutality of the young North Korean leader. The fact that it appeared in a Beijing-controlled newspaper showed that China no longer cares about its relations with the Kim regime.

Amusingly, as this new Reuters piece reports, it now appears that the "international media frenzy over reports that North Korean leader Kim Jong Un's uncle had been executed by throwing him to a pack of dogs appears to have originated as satire on a Chinese microblogging website."  Here is more:

One of the pitfalls of reporting on North Korea is that few independent media have offices there and visiting media are tightly controlled in a country which ranks among the lowest in global surveys of press freedom. Because of the lack of first hand information, many lurid stories about the country gain credence.

Trevor Powell, a Chicago-based software engineer, who first spotted the link to the Weibo post and reported it on his own blog said that analysts and experts were "still all missing the obvious fact that the original source of the Wen Wei Po story was a tweet from a known satirist or someone posing as him/her." Powell blogged about the post here.

January 7, 2014 in Baze lethal injection case, Death Penalty Reforms, Sentencing around the world, Who Sentences? | Permalink | Comments (23) | TrackBack

Saturday, December 14, 2013

New guidelines for sentencing sex offenses promulgated in the UK

This notable new story from across the pond, headlined "Sex offences sentencing overhaul: More emphasis on long-term impact on victims as celebrities have fame used against them," highlights that sentencing rules in other nations also often get ratcheted up following public concern about too lenient sentences in high-profile cases. Here are the basics:

Celebrities who commit sex-offences could see their public image used against them when being sentenced as part of an overhaul of decade-old sentencing guidance for judges in England and Wales. Sex-offenders who are considered to have abused their position of power may be handed longer jail sentences when the guidelines come into effect in April 2014.

Previous “good character” may be considered as an aggravating factor when it has been used to commit a sexual offence, new guidelines drawn up by the Sentencing Council said. The guidelines cover more than 50 offences including rape, child sex offences and trafficking and focus more on the long-term and psychological impact on victims than the previous 2004 guidelines.  They also introduce a higher starting point for sentences for offences such as rape of 15 years.

The new guidance was drawn up by the Sentencing Council after a public consultation and research was undertaken with victims groups, medical practitioners, police, NGOs, magistrates and judges. “Across the justice system, changes have been made to ensure that the alleged offenders' behaviour and the context and circumstances of the incident are scrutinised, rather than the credibility of the victim,” Chief Constable David Whatton, national policing lead for violence and public protection, said....

The guidelines come following a series of high-profile sex offence cases, including revelations about disgraced TV presenter Jimmy Savile, that lead to high numbers of sex attack victims coming forward.  Cases involving grooming gangs in Rochdale and Oxford separately raised questions about social care and attitudes held towards victims....

While the Sentencing Council can recommend a starting point, offenders can still only receive the maximum sentence available at the time the offence was committed.

December 14, 2013 in Advisory Sentencing Guidelines, Sentencing around the world, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, December 11, 2013

So many notable marijuana stories and so little time to blog 'em all

As my my Marijuana Law, Policy and Reform seminar winds down with students working on final papers, local, state, national and international stories concerning modern marijuana reform efforts is really starting to heat up.  Here are headlines and links from just today's latest news of note:

I would be interested in reader perspectives on which of these stories seems the most notable and/or consequential for sentencing law and policy in particular or for American criminal justice more generally.

Cross posted in part at Marijuana Law, Policy and Reform

December 11, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Sentencing around the world, Who Sentences? | Permalink | Comments (1) | TrackBack

Poland asks Connecticut not to send murderer to death row

I just saw this intriguing domestic death penalty story from Connecticut with a notable international spin.  The piece is headlined "Poland's president challenges state's death penalty," and here are excerpts:

In what could spark an international incident, the president of Poland is demanding the state not execute a former Trumbull man for the terrifying 2006 murders of a city woman, her 9-year-old daughter and a Milford landscaper.

"We strongly believe the death penalty should not be imposed," Agniestka Torres, vice consul and head of the legal section for the Polish consulate general in New York, told Hearst Connecticut Newspapers. "It doesn't matter what crimes he committed."

The government of the Republic of Poland this week notified Gov. Malloy and the Chief State's Attorney Kevin Kane that it objects to Richard Roszkowski -- whose parents were Polish -- getting the death penalty. Torres said the appeal comes directly from their president, Bronislaw Komorowski, who recently signed a law banning the death penalty in all circumstances.

Roszkowski was born in the U.S., but both his parents, who are now dead, emigrated from Poland and Roszkowski visited Poland when he was a child. "As far as we are concerned Mr. Roszkowski is a Polish national and is covered by our laws," Torres said....

This latest development adds to an already controversial status for the state's death penalty. In the last 60 years only one person, convicted serial killer Michael Ross, has been executed in this state and that was in February 2005.

Last year Malloy, an opponent of the death penalty, signed a law abolishing it for any new crimes. However, the law left in place the 10 men currently on death row. That portion of the law is currently under appeal.

Last week jury selection was completed for the death penalty hearing against the 48-year-old Roszkowski. His hearing is set to begin Jan. 7.

In May 2009 a Bridgeport jury found Roszkowski guilty of two counts of capital felony, three counts of murder and one count of criminal possession of a firearm for the Sept. 7, 2006, shooting deaths of 39-year-old Holly Flannery, her daughter, Kylie, and 38-year-old Thomas Gaudet.

Although the same jury that convicted Roszkowski of the crime subsequently found he should get the death penalty, the verdict was overturned on a technicality and a new penalty hearing was ordered. At least one of the jurors selected for the new death penalty hearing appears to be of Polish heritage....

Roszkowski's lawyers did not deny he killed the victims but presented nationally recognized medical experts and death penalty opponents who testified Roszkowski has brain damage caused by earlier car crashes, hepatitis and long-term drug use.  The families of the victims declined comment because they are expected to testify in the upcoming hearing.

Among other interesting questions raised by this story concerns whether and how the defense lawyers for this mass murderer ought to be able to bring up these international issues during the penalty trial. Could and should Roszkowski's lawyers be able to argue to the jurors that sentencing Roszkowski to death would cause an international incident and hurt US-Polish relations? Could and should Roszkowski's lawyers be able to have members of the Polish consulate general testify for the defense at the penalty trial?

December 11, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (23) | TrackBack

Monday, November 11, 2013

"Sentence Appeals in England: Promoting Consistent Sentencing through Robust Appellate Review

The title of this post is the title of this notable new paper authored by Briana Rosenbaum now available via SSRN. Here is the abstract:

Unlike in most areas of the law, federal courts of appeals in the United States defer to trial courts on many issues of sentencing law and policy.  As a result, the power to decide sentencing law and policy is often at the discretion of individual district court judges. Law reform scholars have long decried the disparity, lack of transparency, and legitimization concerns that this practice raises.  These concerns are heightened in the post-Booker sentencing regime, where the advisory nature of the Federal Sentencing Guidelines undermines those Guidelines’ ability to further sentencing consistency.

The deferential approach to federal sentence appeals is in sharp contrast to the approach in England, where the appellate court conducts de novo review of sentencing law and policy to develop a common law of sentencing that is independent of the English sentencing guidelines.  The English model of appellate review suggests a new way to design the role of appellate courts in the federal system: from bodies that merely enforce guidelines to further consistency of sentencing outcomes, to bodies that develop sentencing law to further consistency of sentencing approach.

In this paper, I explore the primary functional, institutional, and normative arguments behind the resistance to robust appellate review in the federal appellate courts and study the English model as a means of evaluating these critiques.  Ultimately, I suggest that the federal courts of appeals borrow England’s “mixed deference approach” to sentence appeals, including de novo review of sentencing law and principles.  Doing so will promote greater sentencing consistency without either over-enforcement of the Guidelines or unwarranted encroachment of sentencing discretion.

November 11, 2013 in Booker and Fanfan Commentary, Booker in the Circuits, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, October 31, 2013

"Sentencing and Prison Practices in Germany and the Netherlands: Implications for the United States"

The title of this post is the title of a notable new report from The Vera Institute of Justice available at this link.  Here is a synopsis of the report's coverage via the Vera website:

Germany and the Netherlands have significantly lower incarceration rates than the United States and make much greater use of non-custodial penalties, particularly for nonviolent crimes.  In addition, conditions and practices within correctional facilities in these countries — grounded in the principle of “normalization” whereby life in prison is to resemble as much as possible life in the community — also differ markedly from the U.S.

In February 2013 — as part of the European-American Prison Project funded by the California-based Prison Law Office and managed by Vera — delegations of corrections and justice system leaders from Colorado, Georgia, and Pennsylvania together visited Germany and the Netherlands to tour prison facilities, speak with corrections officials and researchers, and interact with inmates.  Although variations in the definitions of crimes, specific punishments, and recidivism limit the availability of comparable justice statistics, this report describes the considerably different approaches to sentencing and corrections these leaders observed in Europe and the impact this exposure has had (and continues to have) on the policy debate and practices in their home states.  It also explores some of the project’s practical implications for reform efforts throughout the United States to reduce incarceration and improve conditions of confinement while maintaining public safety.

October 31, 2013 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (2) | TrackBack

Wednesday, October 09, 2013

"Anormative Conceptions of Punishment and Humanitarian Ideals"

The title of this post is the title of this notable new paper available via SSRN authored by the prolific and profound Michael Tonry. Here is the abstract:

For the past quarter century, scholars have identified and attempted to explain large differences and changes over time in countries’ penal policies as expressed in their imprisonment rates.  Explanations differ, and imprisonment rates change, sometimes radically, but one thing has remained the same.  The countries atop the rankings have consistently included the United States, South Africa, Russia, the Baltics, Ukraine, and Belarus.

What distinguishes them, and more recently England and Wales, which has led the Western European league tables for two decades, is that they are countries in which punishment discourses, policies, and practices take little account of the interests of offenders.  "There but for the grace of God…" empathy is largely absent.  Mainstream retributive and consequentialist theories of punishment appear to have little influence. Policies and practices, and the implicit punishment theory might best be described as anormative.

October 9, 2013 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, October 02, 2013

Australia's top court rules on the importance of disadvantaged background at sentencing

This article from down under, headlined "Indigenous disadvantage does not diminish over time, High Court rules," reports on an interesting sentencing ruling from the other side of the globe. Here are the details:

Disadvantage caused by a person's Indigenous heritage does not diminish over time and should be taken into account in sentencing of criminal offences, the High Court has found.

Lawyers for William Bugmy, a 31-year-old from Wilcannia convicted of assaulting a guard inside Broken Hill prison in 2011, had asked the court to consider principles for recognising Indigenous disadvantage in sentencing.

Bugmy, who has been been in and out of jail since he was 13, was initially handed a reduced sentence for his offence because of the severe disadvantage he had suffered as an Indigenous man over a prolonged period.

The New South Wales Criminal Appeals Court recognised the so-called Fernando Principles, which take into account an offender's Aboriginal, cultural and social background, but the Crown appealed against the decision. The judge of the court ruled the Fernando Principles diminish over time, particularly for repeat offenders, and added another year and a half to his sentence.

But today the High Court overturned that decision, finding that a long criminal record does not diminish the extent to which Aboriginal disadvantage can be taken into account -- a key element of the case.

The High Court heard Bugmy had grown up in a home where alcohol abuse was common. He had seen his father stab his mother 15 times.  Felicity Graham from the New South Wales Aboriginal Legal Service says Bugmy has suffered from a series of disadvantages throughout his life....

Ms Graham says the court's decision was being watched closely by Indigenous Australians and lawyers around the country.  Ms Graham says the court's ruling could bring down the number of Indigenous Australians in prison.

"The High Court has directed sentencing courts to give full weight to the background factors relating to Aboriginality and social disadvantage and so this certainly could have an impact on the trends of over-representation of Aboriginal people in the criminal justice system," she said.

Bugmy's aunt Julie travelled to Canberra for the hearing and told the ABC she hoped any reduction in her nephew's sentence would set a precedent.  "The outcome I'm hoping will be for all Aboriginal people," Ms Bugmy said.   "It's not just about William and growing up in Wilcannia. You've got the Aboriginal disadvantage: it's there for health, work, employment -- there's no employment."

October 2, 2013 in Offender Characteristics, Sentencing around the world, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, September 24, 2013

Lengthy discussion of "Why Scandinavian Prisons Are Superior"

The title of this post is drawn from the headline of this notable lengthy new article at The Atlantic by Doran Larson. The piece carries the subheading "'Open' prisons, in which detainees are allowed to live like regular citizens, should be a model for the U.S." Here is a snippet from the piece:

Nordic prisons are not all open facilities. Closed prisons here date to the mid-19th century, copied from Philadelphia’s Eastern State, or New York’s Auburn, back when those prisons represented models of humane treatment. To an American eye, these prisons look like prisons: 10-meter walls, cameras, steel doors. I’ve heard men describe Scandinavian closed-prison conditions in ways that echo those of the American prison where I have led a writing workshop since 2006: officials intent on making life onerous, long hours in lockup, arbitrarily enforced rules.

Yet inside the four high-security prisons I’ve visited in Denmark, Norway, Sweden and Finland, common areas included table tennis, pool tables, steel darts, and aquariums. Prisoner art ornamented walls painted in mild greens and browns and blues. But the most profound difference is that correctional officers fill both rehabilitative and security roles. Each prisoner has a “contact officer” who monitors and helps advance progress toward return to the world outside—a practice introduced to help officers avoid the damage experienced by performing purely punitive functions: stress, hypertension, alcoholism, suicide, and other job-related hazards that today plague American corrections officers, who have an average life expectancy of 59.

This is all possible because, throughout Scandinavia, criminal justice policy rarely enters political debate. Decisions about best practices are left to professionals in the field, who are often published criminologists and consult closely with academics. Sustaining the barrier between populist politics and results-based prison policy are media that don’t sensationalize crime—if they report it at all. And all of this takes place in nations with established histories of consensual politics, relatively small and homogenous populations, and the best social service networks in the world, including the best public education. Standing outside a Nordic closed prison, the American son would have felt perfectly at ease. But inside, northern Europe’s closed facilities operate along the lines of humanism that American prisons abandoned early, under a host of pressures -- such as overcrowding, the push to make prisons profitable by contracting out collective labor, the use of unpaid prisoners as private farmhands, and, since 1973, the rise of an $80 billion mass incarceration industry. There is also the matter of scale. The prison population of Sweden (6,900) is less than half the population of Rikers Island at its height (14,000). Several prisons in the U.S. each hold nearly twice the prison population of Finland. This is not simply the difference between large and much smaller countries. U.S. incarceration rates are the highest in the world, about 10 times those throughout Scandinavia, which are among the world’s lowest.

September 24, 2013 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (16) | TrackBack

Sunday, September 15, 2013

Do deterrence concerns justify four death sentences in India for gang rape or is it retributive justice?

The question in the title of this post is prompted by this New York Times review of the recent sentencing for four rapist and the broader problems of sexual violence in India.  The piece is headlined "Many Doubt Death Sentences Will Stem India Sexual Attacks," and here are excerpts:

There was no mistaking the whoop of joy that rose outside Saket District Court on Friday, when word got out that four men convicted in last December’s horrific gang rape and murder had been sentenced to death by hanging. People burst into applause. They hugged whoever was beside them. They pumped the air with their fists....

But some of India’s most ardent women’s rights advocates hung back from Friday’s celebration, skeptical that four hangings would do anything to stem violence against women, a problem whose proportions are gradually coming into focus. “I think a lot of people were hugging each other because they thought this evil is localized, and it will be wiped out, and that is not the case,” said Karuna Nundy, a litigator who has argued before India’s Supreme Court. “The sad truth is that it is not a deterrent.”

From the moment it broke, the story of the 23-year-old woman who became known as “Nirbhaya,” or “fearless,” awoke real rage in the population. Hoping for a ride home from a movie theater, she and a male companion boarded a private bus, not realizing that the six men aboard had been cruising Delhi in search of a victim. After knocking her friend unconscious, they took her to the back of the bus and raped her, then penetrated her with a metal rod, inflicting grave internal injuries. An hour later, they dumped the pair out on the road, bleeding and naked. She died two weeks later of her injuries....

After intensive public discussion of the case, some changes followed with extraordinary speed. Reports of rape have skyrocketed; in the first eight months of this year, Delhi’s police force registered 1,121 cases, more than double the number from the same period in 2011 and the highest number since 2000. The number of reported molestations has increased sixfold in the same period.

The government created a fast-track court for rape cases and introduced new laws, criminalizing acts like voyeurism and stalking and making especially brutal rapes into a capital crime. Scholars have delved into the social changes that may be contributing to the problem, as new arrivals in India’s huge cities find themselves unemployed and hopeless, stuck in “the space below the working class,” as the writer Rajrishi Singhal recently put it in an editorial in The Hindu.

But many were thinking of something more basic — punishing the six (one, a juvenile, got a three-year sentence in August, and the driver was found dead in his cell in March) who attacked the woman in the bus. It was those people who found their way to the Saket courthouse on Friday. Many came like pilgrims, hoping to find closure in a case that had haunted them. Kiran Khullar arrived in a wheelchair, accompanied by her daughter, 17. “I have come here as a mother,” she said. “I came here only to see these men get the death penalty.”

A 62-year-old grandmother, Arun Puri, had scribbled the words “Hang them! Hang them!” on her dupatta, a traditional scarf. Asked whether she felt sorry for the defendants’ parents, she did not flinch. “If these men were my children,” she said, “I would have strangled them to death myself.”

Rosy John, 62, a homemaker watching the furor outside the courtroom, said her only objection to the death sentence was that it was too humane a punishment. “After death, they will get freedom,” she said. “They should be tortured and given shocks their whole life.”

In fact, it is unlikely the four men will be executed swiftly. The order must be confirmed by India’s High Court, and all four defendants may appeal to the High Court, the Supreme Court and the president for clemency. Some 477 people are on death row, inching through a process that often drags on for five or six years. Three people have been executed since 2004, and there were no executions for eight years before that.

Sadashiv Gupta, who defended one of the men, a fruit seller named Pawan Gupta, said he had assured his client that the sentence was likely to be commuted to life in prison, as most are. “I told him: ‘You are going to get the death penalty. Take it in stride, and don’t panic,’ ” said Mr. Gupta, sweating in his stiff white collar outside the courthouse. “I think he shall not be hanged.”

Polls show that Indians remain ambivalent about using the death penalty, with 40 percent saying it should be abolished, according to a survey by CNN, IBN and The Hindu, a respected daily newspaper. For many months already, advocates for women have questioned whether death sentences in the December case would distract people from the more difficult question of why Indian girls and women are so vulnerable to sexual violence.

September 15, 2013 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (19) | TrackBack

Tuesday, August 20, 2013

"International Trends in Prison Privatization"

The title of this post is the title of this notable new research paper from The Sentencing Project.  Here is how the report was summarized in an e-mail I received today:

[Just released is] a new report of The Sentencing Project that analyzes the growth of private prisons internationally.  In International Growth Trends in Prison Privatization, by Cody Mason, we find that at least 11 nations on five continents have followed the lead of the United States in contracting with profit-making entities to operate prisons.

Key findings of the report include:

•  International use of private prisons is predominantly found in English-speaking countries, including Australia, Scotland, England and Wales, New Zealand, and South Africa.

•  While the United States maintains the highest number of individuals held in private prisons, other nations incarcerate a higher proportion of prisoners privately. Leading nations in this regard are Australia (19%), Scotland (17%), and England and Wales (14%).

•  Reports from a number of countries indicate that private prisons have experienced problems relating to violence, drug use, and inefficiency in operations.

August 20, 2013 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (1) | TrackBack

Thursday, August 01, 2013

Domestic and international marijuana legalization making headlines

According to the news headlines, today appears to be yet another significant day for those eager to see movement toward the ending of national and international pot prohibition.  Here are the stories catching my eye:

August 1, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Sentencing around the world | Permalink | Comments (0) | TrackBack

Monday, July 22, 2013

ECHR on LWOP: guest post on what Vinter might mean for extradition to US

As noted in this post earlier this month, a landmark ruling from the European Court of Human Rights  involving UK nationals declared that LWOP sentences without any prospect of release amount to inhuman and degrading treatment of prisoners.  And, as discussed in this follow-up post, I am intrigued by what the decision in Case of Vinter and Others v. the United Kingdom (available via this link) could mean for sentencing law and practices in the US.

Helpfully, my OSU colleague John Quigley was kind enough to write up this thoughtful explanation of what Vinter could mean for US extradition practices:

For the United States, the significance of the case is that the European Court of Human Rights has previously ruled that an extradition request must be denied if the individual would be subjected in the requesting state to treatment or punishment that would violate Article 3 if carried out by a state party to the European Convention on Human Rights.  A few years ago, a man named Ralston Wellington was wanted in Missouri on a murder charge.  He had gone to the UK, and US authorities requested his extradition. He argued that he might be subjected to life without parole in Missouri and fought extradition on that basis, invoking Article 3.  Wellington was extradited in 2010, but only after the matter went up to the House of Lords, then the highest rung in the UK judicial ladder, where sentencing procedures in Missouri were analyzed in detail.

After the Vinter judgment, a person in Wellington’s situation would stand a better chance of avoiding extradition.  Given what the European Court said, as related above, if the US seeks extradition for surrender to the authorities of a state where a life sentence may be imposed, a UK court could find the person extraditable only if it appeared that a procedure would be available (and would be made known to the person at time of sentencing) to review the sentence, and that release would be a possibility as result of such review.

While the Vinter case concerned the UK, it would apply equally to all states that are party to the European Convention on Human Rights, currently numbering 47.  Thus, a fugitive from the United States in any of these 47 states of Europe could mount a challenge to extradition.

The likely outcome would be that prior to surrendering the individual, the requested state would require an assurance from the United States that the individual would not be sentenced to a life term that would violate Article 3 if imposed by a European state. The matter would be handled on the US side by the Department of State, which could decide against giving an assurance, in which case extradition would likely be denied, or decide to give an assurance, in which case a surrender would likely ensue.  If the prosecution were in a state of the United States, the Department of State would doubtless confer with the authorities of that state before deciding what to do.

If the Department of State were then to give an assurance, the individual would likely be surrender and transported to the state in question.  There it would be up to prosecuting authorities in the relevant county how to proceed.  In a case decided in 1989 by the European Court of Human Rights, the United States gave an assurance to the UK that an individual sought on a murder charge in Virginia (and at the time under arrest in London) would not be subjected to capital punishment.  Soering v. United Kingdom (also available on the European Court website).  The county prosecutor in Virginia had gained an indictment for capital murder, and that indictment was still in effect at the time of the surrender. The prosecutor subsequently dropped the capital specification.

What is not clear as a matter of US law is the situation that would obtain were a prosecutor to refuse to honor an assurance given by the Department of State.  Suppose the state prosecution continued, and a life sentence were imposed with no provision for a review or possible release.  Such a refusal would put the United States in violation of the international commitment it made to the requested state.  But it would not be the first time that state authorities in the United States put the federal government in violation of an international commitment with respect to the handling of a criminal case. See Medellin v. Texas, 552 US 491 (2008).  The US Attorney General would have a basis for suing the state to force it to honor the international commitment.  In all likelihood, the matter would be resolved such that the assurance would be honored.  But it is not obvious just how that would come about.

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July 22, 2013 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sentencing around the world | Permalink | Comments (7) | TrackBack

Sunday, July 14, 2013

European Court of Human Rights finds UK use of LWOP sentences violated human rights convention

ECHRAs reported in this piece from The Guardian, last week brought a landmark ruling from the European Court of Human Rights.  The article's headlined provide the basics: "Whole-life jail terms without review breach human rights — European court; Three murderers, including Jeremy Bamber, have right to review of sentence, but ECHR judgment doesn't make release imminent."   Here is more about the ruling and early reaction thereto:

Whole-life jail sentences without any prospect of release amount to inhuman and degrading treatment of prisoners, the European court of human rights has ruled. The landmark judgment will set the ECHR on a fresh collision course with the UK government but does not mean that any of the applicants — the convicted murderers Jeremy Bamber, Peter Moore and Douglas Vinter — are likely to be released soon.

In its decision, the Strasbourg court said there had been a violation of article 3 of the European convention on human rights, which prohibits inhuman and degrading treatment. The judgment said: "For a life sentence to remain compatible with article 3 there had to be both a possibility of release and a possibility of review."

The court emphasised, however, that "the finding of a violation in the applicants' cases should not be understood as giving them any prospect of imminent release. Whether or not they should be released would depend, for example, on whether there were still legitimate penological grounds for their continued detention and whether they should continue to be detained on grounds of dangerousness. These questions were not in issue."

The appeal was brought by Vinter, who murdered a colleague in 1996 and after being released stabbed his wife in 2008; Bamber, now 51, who killed his parents, his sister Sheila Cafell and her two young children in 1985; and Moore, who killed four gay men for his sexual gratification in 1995.

The judges in the grand chamber at Strasbourg, the appeal court above the ECHR, found by a majority of 16 to one that there had been a violation of human rights....

Their decision means that the government will now be under pressure to introduce a formal review of whole-life sentences after 25 years. The current law governing release of life prisoners in England and Wales was unclear, the judges said. Those on a whole-life term can be freed only by the justice secretary, who can give discretion on compassionate grounds when the prisoner is terminally ill or seriously incapacitated....

In its judgment, the grand chamber said: "The need for independent judges to determine whether a whole-life order may be imposed is quite separate from the need for such whole-life orders to be reviewed at a later stage so as to ensure that they remain justified on legitimate penological grounds."...

The new British judge on the court, Paul Mahoney, pointed out in his comments that the UK government was "of course free to choose the means whereby they will fulfil their international treaty obligation" to abide by the judgment....

During the original hearing in Strasbourg, Pete Weatherby QC, who represented the three claimants, told the court: "The imposition of a whole-life sentence crushes human dignity from the outset, as it removes any chance and therefore any hope of release in the future.  The individual is left in a position of hopelessness whereby he cannot progress whatever occurs."

Commenting on the decision, Rebecca Niblock, a criminal law solicitor at Kingsley Napley LLP, said: "No doubt there will be renewed calls to pull out of the European convention on human rights and repeal the Human Rights Act.  Yet Theresa May would do well to keep a sense of proportion: a right to have the sentence reviewed is quite different from a right to be released, and the number of prisoners affected is tiny — 49."

"England and Wales lag behind other European countries in the use of the whole-life sentence — the only other EU country which uses it is Holland.  The repeated calls to withdraw from the European convention carry a huge risk of undermining the UK's reputation abroad.  There is only so much the UK can say to other countries about their human rights records when they show disdain for judgments which go against them at Strasbourg."

I am unsure about how ECHR rulings impact domestic laws and procedures either in the nation brought before the ECHR or other nations who have adopted the applicable convention.   But I am sure, as evidenced by local press stories and commentaries here and here and elsewhere, that this ruling is not being celebrated within the UK.  Further, because the decision in Case of Vinter and Others v. the United Kingdom  (available via this link) is long and full of nuance, its actual impact may end up somewhat more muted than might be predicted or feared.

That all said, this ruling to me serves as another important reminder that lots of judges when given an opportunity to consider human rights rather than just politics ultimately conclude that a true LWOP sentence is a horrific punishment even for the most horrific of crimes.  The US Supreme Court rulings in Graham and Miller, though far more limited and far more divided that this ECHR ruling in Vinter, are in the same vein.  And I suspect over time other courts in various other settings will come to similar rulings about true LWOP sentences.

July 14, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (13) | TrackBack

Wednesday, July 03, 2013

"China threatens death penalty for serious polluters"

The title of this post is the headline of this notable Reuters article from a few weeks ago that I just came across.  Here is how it gets started:

Chinese authorities have given courts the powers to hand down the death penalty in serious pollution cases, state media said, as the government tries to assuage growing public anger at environmental desecration.

An increasingly affluent urban population has begun to object to China’s policy of growth at all costs, which has fuelled the economy for three decades, with the environment emerging as a focus of concern and protests.

A new judicial interpretation ... would impose “harsher punishments” and tighten “lax and superficial” enforcement of the country’s environmental protection laws, the official Xinhua news agency reported.  “In the most serious cases the death penalty could be handed down,” it said.

“With more precise criteria for convictions and sentencing, the judicial explanation provides a powerful legal weapon for law enforcement, which is expected to facilitate the work of judges and tighten punishments for polluters,” Xinhua said, citing a government statement.  “All force should be mobilised to uncover law-breaking clues of environmental pollution in a timely way,” it added.

Previous promises to tackle China’s pollution crisis have had mixed results, and enforcement has been a problem at the local level, where governments often heavily rely on tax receipts from polluting industries under their jurisdiction.

July 3, 2013 in Death Penalty Reforms, Sentencing around the world, White-collar sentencing | Permalink | Comments (1) | TrackBack

Tuesday, July 02, 2013

Released sex offenders in Great Britain soon to be required to take regular polygraph tests

Keep-calm-and-protect-kids-from-sex-offenders-6As reported in this article from across the pond, a novel (and apparently somewhat efficacious) approach to sex offender monitoring is being expanded in part of Great Britain after a successful pilot program.  The article is headlined "Lie detector tests set to be introduced to monitor sex offenders: Politicians expected to approve law allowing compulsory polygraph tests of sex offenders released into community," and here are excerpts:

MPs are expected to clear the way for the introduction of compulsory lie detector tests to monitor convicted sex offenders across England and Wales from next January.

The national rollout of US-style mandatory polygraph tests for serious sex offenders who have been released into the community after serving their prison sentence follows a successful pilot scheme. The trial was carried out from 2009-11 in two Midlands probation areas and found that offenders taking such tests were twice as likely to tell probation staff they had contacted a victim, entered an exclusion zone or otherwise breached terms of their release licence.

Continuing concerns about the reliability of the tests and misinterpretation of the results mean they still cannot be used in any court in England and Wales. But it is expected that the compulsory polygraph tests will be used to monitor the behaviour of 750 of the most serious sex offenders, all of whom have been released into the community after serving a sentence of at least 12 months in jail.

The tests involve measuring reactions to specific questions by monitoring heart rate, blood pressure, breathing and levels of perspiration to assess whether the subject is being truthful. The results will be used to determine whether they have breached the terms of their release licence or represent a risk to public safety and should be recalled to prison.

The power to introduce compulsory lie detector tests was put on the statute book six years ago in the Offender Management Act 2007. On Tuesday MPs will debate secondary legislation in the form of a statutory instrument to come into force from 6 January 2014. The House of Lords will be asked to approve it later this month.

The justice minister Jeremy Wright said: "Introducing lie detector tests, alongside the sex offenders register and close monitoring in the community, will give us one of the toughest approaches in the world to managing this group.

"We recently announced the creation of a National Probation Service tasked with protecting the public from the most high-risk offenders. They will be able to call on this technology to help stop sex offenders from reoffending and leaving more innocent victims in their wake."

Hertfordshire police used the tests in a pilot scheme in 2011 to help decide whether to charge suspected sex offenders and gauge the risk they posed to the public. "Low level" sex offenders were involved in the original pilot. At least six revealed more serious offending and were found to pose a more serious risk to children than previously estimated. A further trial was ordered but at the time the Association of Chief Police Officers voiced caution about the adoption of such tests: "Polygraph techniques are complex and are by no means a single solution to solving crimes, potentially offering in certain circumstances an additional tool to structured interrogation," a spokesman said.

Polygraph testing is used in court in 19 states in America, subject to the discretion of the trial judge, but it is widely used by prosecutors, defence lawyers and law enforcement agencies across the US.

I find curious that this article speaks of "US-style mandatory polygraph tests"; I am not aware of any US jurisdiction that uses mandatory polygraph testing as part of a program of sex offender monitoring.  That said, I would not be at all surprised if some jurisdictions in the US were to consider such a requirement if there is good reason to believe that such testing does a reasonable job of sorting out more (and less) dangerous released sex offenders.

Though I suspect a number of civil rights and civil liberties groups in the US would be quick to express concerns about mandatory polygraph tests of sex offenders, I tend to be open-minded about the use of any form of technocorrections that might serve as a means to both increase public safety and ultimately offender liberty.  For if post-release polygraph testing serves as a means to better assess enduring threats from more-dangerous released sex offenders, then other sex offenders can and should be able to rely on such a program to argue for allowing earlier release of some likely less-dangerous sex offenders (e.g., those who download child pornography but have never been involved in any contact offenses).

July 2, 2013 in Criminal justice in the Obama Administration, Reentry and community supervision, Sentencing around the world, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (19) | TrackBack

Tuesday, June 18, 2013

With overcrowded prisons and under court order, Italy is the California of Europe when it comes to punishment practices

Carceri_italiane_ansa-jpg_370468210-jpg-crop_displayThis lengthy new article from the International Business Times prompts my post title because it details how Italy is struggling through prison problems that sound a lot like what California continues to deal with.  The piece is headlined "Italy’s Overcrowded Prisons: A Growing Tragedy Of Epic Proportions," and here are excerpts:

Prisons across Europe are facing an overcrowding crisis -- a manifestation of at least three trends: tougher sentencing by judges (particularly for drug-related offenses), a painfully slow justice system and lack of money to build new facilities to accommodate the excess number of inmates.

This crisis is particularly acute in Italy, where correctional facilities are bursting at the seams with an avalanche of convicted men and women.  According to the Prison Observatory of Antigone, a Rome-based prisoners' rights organization, almost 67,000 inmates are housed in Italian facilities that were designed to hold only 45,000 -- meaning they are at a capacity of more than 140 percent, among the highest rates in the European Union, where the average capacity is just under 100 percent.

The situation in Italian prisons has become so grave that in January of this year, the European Court of Human Rights declared that Italy had just one year to improve conditions in the country's prisons, while ordering Rome to fork over 100,000 euros ($132,000) to seven inmates who raised a test case with the court. “Their conditions of detention had subjected them to hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and violated the European Convention on Human Rights’ prohibition against torture and cruel, inhuman or degrading treatment or punishment,” the court stated.

Italy's president Giorgio Napolitano (who has no real power to influence public policy) agreed with the court's ruling, saying it amounted to "a mortifying confirmation of the persistent failure of our state to guarantee the basic rights of detainees awaiting judgment and serving sentences.” He added that "decisions can no longer be postponed to overcome a degrading reality for the inmates and for the prison guards.”...

Three years ago, having declared a state of emergency in the nation's prisons, the government unveiled a plan to spend 675 million euros ($900 million in 2013 currency) to build 11 new prisons and as well as extensions to existing jails. But the financial collapse has largely scuttled that program.

As in France, many Italians are being jailed for minor crimes -- about 60 percent of convicted prisoners are serving terms of less than three years. Moreover, about 38 percent of all inmates in Italy are drug offenders (versus figures of 14 percent in Germany and France and 15 percent in England and Wales). In addition, 42 percent of Italy’s prisoners are pre-trial detainees (versus a European average of 28.5 percent); while more than one-third of inmates are immigrants.

"There are so many people awaiting trial for six, seven, eight months," said Cesare Cececotto, an inmate at Regina Coeli, a famous prison in Rome. Another inmate named Giuseppe Rampello complained to Reuters about the large number of foreigners in prison. "We are talking about a prison where you can be in a cell with people with six different languages, six different habits, where there is one who prays as an observant Muslim five times a day and another who swears five times a minute," the 63-year-old inmate said....

In northern prisons, foreigners far outnumber Italians – Antigone said that in jails in Milan and Vicenza, more than 60 percent of inmates are foreign, while in the mountain territories of Trentino Alto Adige and Valle d’Aosta, the proportion reaches nearly 70 percent. Cececotto quipped that as the only Italian in his cell, “Thank God, I speak a bit of English and a bit of Spanish.”

In its 2012 report, Antigone declared that "the heart of the prison problem is the penal code.” Napolitano's wish to reform prison sentencing guidelines was compromised by political infighting and the change in government earlier this year. "Something must be done because the prisons are close to collapse," a senior prison official, Margherita Marras, told Reuters....

An inmate named Claudio told Inter Press Service about conditions in his Vicenza facility in March 2013 -- where he had to share a 7.6 square-meter (80 square foot) cell with two other people and stay there 21 hours per day. “Once you excluded the space taken up by beds and drawers, each inmate was left with 90 centimeters (35 inches) to himself. We had to take it in turns to stand up,” he said. “There was no possibility for (inmates) to engage in any activity.”

The crisis in Italy’s prisons is nothing new. As long ago as 1995, the New York Times published an article warning: “Bursting Population Overwhelms Italy’s Prisons.” That piece, written by Celestine Bohlen, noted for example that so many prisoners were housed in Milan’s San Vittorio facility that police were forced to relocate some 400 inmates elsewhere, some to as far away as the isle of Sardinia.

At that time, Italy had 54,000 prisoners in a system designed to hold only 29,000. After almost two decades the problem has only worsened. “The continuous increase in the jails overcrowding and the significant presence of foreign prisoners makes pursuing the rehabilitative aim of punishment extremely complex and often in vain,” Napolitano told the head of the Italian prison administration department....

Ornella Favero, director of Ristretti Orizzonti, said overcrowding could be relieved by providing a significant number of inmates, especially pre-trial detainees and non-violent drug offenders, access to noncustodial sanctions, including alternatives like fines, community service, house arrest and treatment for drug addiction. In Spain, Germany and France, more than 100,000 convicts are outside of prison walls – the corresponding figure in Italy is less than 20,000.

June 18, 2013 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (5) | TrackBack