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.
Tuesday, September 30, 2014
Reviewing how death is different (but still being used) in Japan
This new piece from The Economist, headlined "The death penalty in Japan: Hanging tough," discusses the on-going debate over capital punishment in the Land of the Rising Sun. Here are excerpts:
It is one of the anomalies of Japan’s approach to the death penalty that a stricken conscience can bring the system grinding to a halt. At least two Japanese justice ministers have refused to sign execution orders, most recently Seiken Sugiura, a devout Buddhist who oversaw a 15-month moratorium from 2005 to 2006. But Japan’s new justice minister, Midori Matsushima, seems unburdened by such doubts.
Ms Matsushima, who took office this month, has swatted away demands to review the system. Japan is one of 22 nations and the only developed country — apart from America, where it is falling out of favour — that retains capital punishment. “I don’t think it deserves any immediate reform,” she said last week: in her view the gallows are needed “to punish certain very serious crimes”.
Calls for a review have grown since the release earlier this year of Iwao Hakamada, a 78-year-old who spent 45 years of his life in a toilet-sized cell awaiting execution. A Japanese court said the police evidence that put him behind bars in 1966 was probably fabricated. Mr Hakamada, dubbed the world’s longest-serving death-row prisoner, is awaiting a fresh verdict later this year. Prosecutors have lodged an appeal against his retrial.
Opponents are hoping that the state’s stubborn fight to wheel another elderly man back to the gallows (he is severely ill and suffers from advanced dementia) may trigger debate and a backlash. But critics face an uphill struggle. Japan’s media largely steers clear of the topic. Ms Matsushima points to public support of over 85% on carefully-worded surveys put out by the cabinet: respondents reply to whether execution is “unavoidable if the circumstance demands it”.
Mr Hakamada would not be the first elderly or infirm inmate to be hanged in Japan. On Christmas day in 2006, Fujinami Yoshio, aged 75, was brought to the gallows in the Tokyo Detention Centre in a wheelchair. Even the openly abolitionist Keiko Chiba, who was justice minister from 2009 to 2010, failed to make a dent in the system. In July 2010 she signed and attended two executions in a bid, she said, to start a public discussion that quickly petered out.
Thursday, September 18, 2014
Long-incarcerated mass murderer given right to end his life in Belgium
A helpful reader alerted me to this fascinating article from overseas headlined "Serial murderer and rapist, 50, given right to die under controversial Belgian euthanasia laws." Here are excerpts:
A serial murderer and rapist has been given the right to end his life under controversial Belgian euthanasia laws, it has emerged. Frank Van Den Bleeken, 50, has been behind bars for 30 years and has no hope of release because of his intensely violent urges. Now judges in Brussels have agreed that Van Den Bleeken can commit suicide with the help of medics.
Jos Vander Velpen, the prisoner’s lawyer, said: ‘Over recent years, he has been seen by several doctors and psychologists and their conclusion is that he is suffering, and suffering unbearably.’
It will be the first time that a Belgian legal ruling about euthanasia which specifically applies to a serving prisoner has been handed down. It was rubber stamped by the country’s Justice Ministry, which is ultimately responsible for everyone serving time in jail.
In all cases, patients must be conscious and have presented a ‘voluntary, considered and repeated’ request to die. Mr Vander Velpen said his client met all such conditions, and for the past four years had felt he ‘couldn’t stand to live like this any longer and could no longer accept the pain’.
Van Den Bleeken will be transferred from his prison in Bruges to a hospital, where he will be euthanised. Like every other country in the Union, Belgium does not have a death penalty, and technically doctors will only be helping Van Den Bleeken die.
Van Den Bleeken himself said in recent TV documentary: ‘If people commit a sexual crime, help them to deal with it. Just locking them up helps no one — neither the individual, society or the victims. ‘I am a human being, and regardless of what I’ve done, I remain a human being. So, yes, give me euthanasia.’
Despite being a mainly Roman Catholic country, Belgium has always been at the forefront of liberalising euthanasia laws. It made euthanasia legal in 2002, making it only the second country in the world to do so after Holland. Last year alone, Belgium euthanised a record 1,807 people.
Van Den Bleeken has only left prison once in the past three decades — to attend his mother’s funeral. A Belgian justice ministry spokesman said Van Den Bleeken would be euthanised ‘shortly’ at this own request.
Perhaps unsurprisingly, the decision to grant Van Den Bleeken a right to die, as evidenced by this companion commentary piece headlined "Why should our sister's killer be allowed to die with dignity when our suffering goes on?". Here is an excerpt of that piece providing some more context:
Van Den Bleeken is the first serving prisoner to be granted the right to die because of psychological torment. Another Belgian inmate was euthanised last year but he suffered from an incurable physical illness. But, as a direct result of the ruling, 15 other Belgian prisoners have already applied for euthanasia, even though the death penalty was abolished in 1996.
The case has renewed controversy about state-sanctioned suicide and raised serious ethical concerns. But it also calls into question the very nature of punishment and whether murderers and rapists should “suffer” for their heinous crimes or get treatment and rehabilitation.
Medics warn that euthanasia must not become an alternative to treatment while prison reformers insist it must not become a back-door return to the death penalty.
The country’s leading euthanasia advocate is also opposed to Van Den Bleeken’s death. Professor Wim Distelmans, chairman of the Belgian Board of Control for Euthanasia ... said: “It is wrong to allow him to end his life like this.” But Nikhil Roy, Director of Programmes at Penal Reform International, said: “While people are in prison it is the responsibility of the prison authorities to provide adequate care and opportunities for rehabilitation. This case highlights the lack of adequate therapy for prisoners and the fact that mental health issues are widespread in prisons around the world.”
September 18, 2014 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (2) | TrackBack
Thursday, August 07, 2014
Greek priest helps poor inmates buy their way out of Greek prisons
This new AP article, headlined "In Greek crisis, priest roams prisons to buy inmates their freedom," reports on what might be viewed as a remarkable "alternative sentencing" program in Greece and the noble role played by a clergy to make the system a bit less economically unfair. Here are the details:
In Greek justice, money talks ...: Some inmates jailed for minor offences are allowed to buy their freedom — at an average rate of five euros per day.
With the rich at a clear advantage, Greek Orthodox priest Gervasios Raptopoulos has devoted his life to paying off the prison terms of penniless inmates.
The soft-spoken 83-year-old with a long white beard and black robes has helped more than 15,000 convicts secure their freedom over nearly four decades, according to records kept by his charity. The Greek rules apply only to people convicted of offences that carry a maximum five-year sentence, such as petty fraud, bodily harm, weapons possession, illegal logging, resisting arrest and minor drugs offences.
His work, however, is getting harder. Gervasios, 83, has seen his charity's funds, which all come from private donations, plummet in Greece's financial crisis. And there has been a sharp rise in inmates who can't afford to pay their way out of prison. "Where people would offer 100 euros ($135), they now give 50 ($67). But that doesn't stop us," he told The Associated Press in an interview.
The crisis, which has worsened already hellish prison conditions, makes his efforts even more pressing. "Our society rejects inmates and pushes them into the margins," he said. "People often say: 'It serves them right.'"
While behind bars, inmates also need money to buy necessities such as toilet paper and soap when the often meagre supplies provided by prison run out. Gervasios helps them, too, either with cash or handouts.
Greece has a prison population of about 13,000 — far above capacity — forcing authorities to cram inmates into police holding cells as they wait for a place in jail. Gervasios' charity allocates up to 500 euros ($675) for each prisoner they help, but the amount needed varies. Sometimes a small sum goes a long way. "Once, we gave a man 8.5 euros, which was what he lacked to gain his freedom," he said....
Many prisoners released by his efforts in Greece are foreigners. If they die in prison, the charity pays for their bodies to be taken home. Since launching the charity in 1978, Father Gervasios has received several state awards, including one of the highest civilian honors granted by the government. The Justice Ministry, responsible for Greece's prisons, is unstinting in its praise.
"For decades now, Father Gervasios Raptopoulos has carried out exceptional work, offering human warmth and solidarity to prisoners," said Marinos Skandamis, the ministry's secretary-general. It is inmates and prison staff who are the most grateful. "We would send him papers concerning prisoners who could be freed with a cash payment, and details on what they were in prison for," said Costas Kapandais, a former governor at Greece's Komotini and Diavata prisons. "He didn't turn down a single request."
Thursday, June 05, 2014
Will Canada's courts continue to strike down mandatory minimums as unconstitutional?
The question in the title of this post is prompted by this interesting recent commentary in a Canadian paper sent my way by a helpful reader. The piece by Lisa Kerr is headlined, "Mandatory minimums for drug crimes have no future in Canada: As the B.C. Court of Appeal prepares to hear the first major challenge to mandatory minimums, there’s reason to think the policy will be rightly short-lived." Here are excerpts:
This week, the B.C. Court of Appeal hears the first major challenge to the latest symptom of a punitive plague: mandatory incarceration for a drug crime. The defendant, 25-year-old Joseph Lloyd, lives in the downtown eastside of Vancouver, where he struggles with addiction and regularly interacts with the court system. In the past, local judges could use their expertise to craft an individualized punishment for people like Lloyd. Community supervision, drug programming, or specific amounts of jail time could target his specific circumstances.
New legislation compels judges to impose a minimum one-year prison term on all individuals who meet a handful of criteria. Judges can no longer consider whether it is in the public interest to incarcerate someone like Lloyd, or for how long. They can no longer consider whether a person will lose housing or employment. While one year in a chaotic jail is unlikely to help a struggling individual to recover stability, that is a judge’s only option unless the law is struck down.
In the United States, the removal of discretion from sentencing judges is the central cause of its famously high rate of incarceration. There are nine million prisoners in the world. Over two million of them are in the U.S....
The arrival of mandatory sentences does not herald the “Americanization” of Canadian crime policy. The deep principles of our criminal justice system cannot be dismantled overnight. Our prosecutors are not a bloodthirsty lot — they are largely anonymous and professional public servants. Unlike many of their American counterparts, Canadian prosecutors are not subject to elections and public scrutiny. They are better positioned to pursue a broad notion of the public interest, rather than just long prison sentences.
Canadian judges are also likely to resist interference by politicians who are detached from the daily reality of human misery faced in criminal courts. And they have the tools to do so. While Canada and the U.S. have identical language in the constitutional prohibition against “cruel and unusual punishment,” the prohibition has been interpreted very differently in the courts.
In 2003, the U.S. Supreme Court upheld a life sentence for a third offence of stealing golf clubs. In 1987, the Canadian Supreme Court struck down the only previous attempt at automatic incarceration for drug crime: a seven-year term for drug trafficking. So far, mandatory sentences for non-violent drug offences are unconstitutional in this country.
Canadian institutions are likely to resist this untimely American policy transplant. There is no collapse of faith in our courts, there is no crime wave, and there is no Southern Strategy. Joseph Lloyd should encounter a court system that is free to encounter him.
Friday, May 23, 2014
"Treating Prisoners With Dignity Can Reduce Crime"
The title of this post is the headline of this notable new National Journal commentary authored by Nicholas Turner and John Wetzel. The piece's subheadline is "In Europe, prisoners work for real wages and even cook for themselves. And when they leave prison, they don't come back." And here are excerpts:
It sounds like the first line of a joke: "Three state corrections teams and some experts who are old hands at visiting prisons go to meet their warden counterparts in Germany and the Netherlands in mid-January to see what they could learn."
But it's a true story — and what high-level delegations from Colorado, Georgia, and Pennsylvania learned through the Vera Institute of Justice's European-American Prison Project is no laughing matter. What we learned, in fact, has serious and timely boots-on-the-ground implications....
For those of us who visited Germany and The Netherlands, the approach to sentencing and the prison philosophy we saw astonished and inspired us. Not only are far fewer people imprisoned, but even those who have committed serious violent crimes serve far shorter sentences.
In these European countries, prisons are organized around the belief that, since virtually all prisoners will return to their communities, it is better to approach their incarceration with conditions as close to "normal" as possible — with the addition of treatment, behavioral interventions, skills training, and needed education — and to remove them from communities for the shortest possible time so that institutional life does not become their norm.
Inmates live in rooms and sleep in beds, not on concrete or steel slabs with thin padding. Inmates have privacy — correctional officers knock before entering — they wear their own clothes, and can decorate their space as they wish. They cook their own meals, are paid for work that they do, and have opportunities to visit family, learn skills, and gain education. Inmates are required to save money to ensure that they are not penniless upon release. There are different expectations for their corrections officers — who are drawn primarily from the ranks of lawyers, social workers, and mental health professionals — to be part of a "therapeutic culture" between staff and offenders, and consequently receive more training and higher pay. There is little to no violence — including in communal kitchens where there are knives and other "dangerous" implements. And their maximum time in any kind of punitive solitary is eight hours.
Prison policies grounded in the belief that prisoners should be treated with dignity were startlingly effective — and have eminently pragmatic implications here at home. The adverse social and economic outcomes for former prisoners in the U.S. are severe — and they are concentrated in communities that are already struggling mightily. With 95 percent of our nation's incarcerated individuals eventually returning home from prison — and 40 percent going right back to prison within three years — we would do well to heed the strategies used in these nations to teach prisoners how to be good and productive citizens that can rebuild their communities....
Are there challenges to wholesale reform? Of course. Money. Infrastructure. Strains of racial division borne of our history and heterogeneity. And, cultural differences especially as relates to violence may mean that some European practices may not translate smoothly to the U.S. Yet we are at a moment of potential for significant shifts. It will require legislation and policy change, including rethinking sentencing for lower offenses and reducing the time for those who must be in prison. But the notion that we should strive to create an environment within our prisons conducive to our goal — to return good citizens to our communities — is a challenge we can and must meet.
Tuesday, May 13, 2014
Corruption nets former Israeli prime minister a six-year prison sentence
As reported here via CNN, Israel's former "Prime Minister Ehud Olmert was sentenced Tuesday to six years in prison for taking bribes while mayor of Jerusalem." Here are more details concerning this high-profile crime and punishment from the promised land:
Olmert was also fined 1 million shekels (about $289,000), Israeli state radio IB reported.
Olmert was convicted in March of receiving about $161,000 in bribes related to a controversial Jerusalem housing project called Holyland. The judge acquitted Olmert on a third count of bribery. The developer of Holyland, Hillel Cherney, had been previously convicted of bribing Olmert and other high-level officials in exchange for Holyland approvals.
Olmert was mayor of Jerusalem from 1993 to 2003. Olmert, an attorney who in 1973 became the youngest person ever elected to Israel's parliament, the Knesset, served as prime minister from 2006 to 2009. He announced his resignation shortly after police recommended corruption charges against him.
In August 2012, he was convicted of breach of trust and acquitted on two corruption-related charges after a trial that lasted nearly three years. He was given a 3-month suspended jail sentenced and fined about $19,000 in that case....
Prosecutors accused him of double-billing government agencies for travel, taking cash from an American businessman in exchange for official favors and acting on behalf of his former law partner's clients.
Friday, May 09, 2014
"Legal Institutions and Social Values: Theory and Evidence from Plea Bargaining Regimes"
The title of this post is the title of this intriguing new empirical paper by Yehonatan Givati now available via SSRN. Here is the abstract:
How do social values shape legal institutions across countries? To address this question I focus on one important legal institution -- the use of plea bargaining in criminal cases. I develop a model in which the optimal scope of plea bargaining depends on social values. Specifically, a lower social emphasis on ensuring that innocent individuals are not punished, and a greater social emphasis on ensuring that guilty individuals are punished, lead to a greater use of plea bargaining. Using unique cross-country data on social preferences for punishing the innocent versus letting the guilty go free, as well as an original coding of plea bargaining regimes across countries, I obtain results that are consistent with the model.
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.
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."
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.
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.
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.
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:
From CNN here, "Uruguay to legalize marijuana, Senate says"
From the Denver Post here, "Colorado officials, pot businesses clash over inventory tracking"
From ESPN magazine here, "Smoke screen: It's time for the NFL to embrace a new pain reliever: marijuana"
From the Huffington Post here, "Polls Suggest California Is Poised To Legalize Marijuana In 2014"
From Politicker here, "Pols Begin Push to Legalize Marijuana in New York State"
From the San Jose Mercury News here, "San Jose medical marijuana crackdown begins after council vote on regulations"
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
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?
Monday, November 11, 2013
"Sentence Appeals in England: Promoting Consistent Sentencing through Robust Appellate ReviewThe 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.
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.
Wednesday, October 02, 2013
Australia's top court rules on the importance of disadvantaged background at sentencingThis 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."
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.
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.
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.
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:
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.
Recent related posts:
- European Court of Human Rights finds UK use of LWOP sentences violated human rights convention
- ECHR on LWOP: thoughts on Vinter and possible US impact
Sunday, July 14, 2013
European Court of Human Rights finds UK use of LWOP sentences violated human rights conventionAs 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.
Tuesday, July 02, 2013
Released sex offenders in Great Britain soon to be required to take regular polygraph testsAs 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 practicesThis 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.
Sunday, May 19, 2013
Noting distinct criminal sentencing responses to "hacktivism" in the US and the UKThis new piece from Salon highlights the severity of the US sentencing system relative to our friends across the pond. The piece is headlined " U.K. hacker sentencing highlights U.S. overreach: LulzSec members in Britain receive maximum of 15 months, while hacktivist Jeremy Hammond faces life in prison here." Here is how it starts:
Hacktivist Jeremy Hammond has already spent 14 months in pretrial detention at federal prison in New York. He awaits trial for his alleged involvement in the famed LulzSec Stratfor hack and faces up to 42 years in prison. Meanwhile, across the Atlantic, sentencing of admitted LulzSec hackers in Britain highlights the severity of the U.S. approach to hacktivism. Three young men in the U.K. pled guilty to activity attributed to the Anonymous offshoot; their charges mirror those facing Hammond, while the extent of punishment is wildly disparate.
As activist publicity organization Sparrow Media pointed out Thursday, “three English co-defendants who plead guilty to being members of the Lulzsec hacktivist group were today sentenced by a UK court. Ryan Acroyd, the most technically experienced of the three, received the longest sentence -- he will spend 15 months in prison.”
Monday, April 22, 2013
Law and Contemporary Problems devotes March 2013 issue to sentencing reform around the worldI am so very pleased to see that available on line here is the full March 2013 issue of the journal Law and Contemporary Problems, which is devoted to providing a "Global Perspective on Sentencing Reforms." The issue has a dozen articles, some of which are focused on state sentencing reforms, some of which are focused on federal sentencing reforms, and some of which are focused on sentencing reforms in the UK and Germany and elsewhere. And all of the article look like must reads for sentencing geeks like me. The Foreward to the Issue is authored by by Professor Oren Gazal-Ayal of the University of Haifa, and here are excerpts from the start and end of this introduction:
The articles published in this issue of Law and Contemporary Problems examine the effects of different sentencing reforms across the world. While the effects of sentencing reforms in the United States have been studied extensively, this is the first symposium that examines the effects of sentencing guidelines and alternative policies in a number of western legal systems from a comparative perspective. This issue focuses on how different sentencing policies affect prison population rates, sentence disparity, and the balance of power between the judiciary and prosecutors, while also assessing how sentencing policies respond to temporary punitive surges and moral panics.
The effects of sentencing guidelines are highly contested and debated among scholars. As a result, there are a number of outstanding questions regarding the actual effects of such guidelines. For instance, do sentencing guidelines transfer sentencing powers from the judiciary to prosecutors? Should the guidelines bear some of the responsibility for the surge in prison population in the United States? Has the lack of guidelines helped Germany constrain its prison population? Do sentencing guidelines help mitigate the effects of punitive surge, or, on the other hand, do they facilitate the punitive effect of moral panics? Do guidelines effect racial and ethnic disparity in sentencing? And how should guidelines be structured?...
The articles in this issue are the out come of a conference on sentencing reform that was held at the University of Haifa, Faculty of Law in February 2011. The conference and this issue address the effects of sentencing reforms from a global perspective, relying mainly on empirical research. The result is, as in most such attempts, incomplete. But we did come closer to answering some of the pressing questions — though only to find out that many new questions hide behind the answers to the old ones. It seems that sentencing, a topic that has been the focus of academic debate for centuries, will continue to attract this much needed attention for centuries to come.
Thursday, April 04, 2013
Perfect retributivism?: Saudi court orders paralysis as punishment for assault that resulted in paralysisA colleague sent me this remarkable international sentencing story, headlined "Surgical Paralysis Ordered in Saudi Arabia as Punishment for Teenage Assault: Spine-for-a-spine punishment has mother 'frightened to death'." Here are the basics:
Ali Al-Khawahir, 24, is awaiting court-ordered surgical paralysis in Saudi Arabia for an assault he committed when he was 14 years old, according to news reports.
Al-Khawahir has reportedly spent 10 years in prison since stabbing a friend in the spine during a fight. The wound left his friend paralyzed. The Saudi legal system allows eye-for-an-eye punishments.
The convicted man's mother told Arabic-language newspaper Al-Hayat that the family is seeking help raising $270,000 in "blood money," which in Saudi Arabia can be requested by a crime's victim -- or victim's family in cases of murder -- in exchange for punishment. "We don't have even a tenth of this sum," she said, according to a translation by The Guardian....
Amnesty International condemned the sentence as "outrageous" in a statement released this week. "Paralysing someone as punishment for a crime would be torture," said Ann Harrison, the organization's Middle East and North Africa deputy director. "That such a punishment might be implemented is utterly shocking." Tooth extractions, said Amnesty, have also been ordered in Saudi Arabia.
Israeli news website Ynet reports that 13 years ago a Saudi hospital gouged out an Egyptian man's eye as punishment for an acid attack that injured another man. A similar sentence for an Indian man six years later was set aside after international outrage.
If victims do not seek "blood money" or perpetrators cannot afford to pay the amount requested, the sentence is carried out.
Though I never want to be accused of defending this seemingly brutal form of retributivist punishment, I cannot help but note that a sentence of LWOP (especially if it involves extended confinement in a supermax-type prison) could and would in some cases be more limiting of a offender's freedom than being confined to a wheelchair for life. And, of course, there are many (perhaps thousands) of folks serving LWOP sentences in US prisons for crimes less severe than aggravated assault leading to permanent paralysis. (Recall that Terrance Graham was serving an LWOP in Florida for robbery offenses committed while a teenager until the US Supreme Court decided the sentence was unconstitutional.)
As should be obvious, I am not trying to make the case for either paralysis or LWOP as justifiable punishments, but rather I am trying to suggest that some reasons we may find this court-ordered lifetime confinement to a wheelchair os horrific ought also give us reason to be deeply troubled by court-ordered lifetime confinement to a cage. More broadly, I mean for this story and my headline to highlight that an aggressive commitment to the deontological punishment philosophy of retributivism may make it difficult to assail, at least in theory, the distinctive punishment ordered by the Saudi court in this case.
Friday, March 01, 2013
"Chinese TV Special on Executions Stirs Debate"The title of this post is the headline of this notable new New York Times article, which gets started this way:
During a two-hour television broadcast that was part morality play, part propaganda tour de force, the Chinese government on Friday sent four foreign drug traffickers to their deaths after convicting them of killing 13 Chinese sailors two years ago as they sailed down the Mekong River through Myanmar.
Although the live program ended shortly before the men were executed by lethal injection, it became an instantly polarizing sensation, with viewers divided on whether the broadcast was a crass exercise in blood lust or a long-awaited catharsis for a nation outraged by the killings in October 2011. Some critics said the program recalled an era not long ago when condemned prisoners were paraded through the streets before being shot in the head.
“Rather than showcasing rule of law, the program displayed state control over human life in a manner designed to attract gawkers,” Han Youyi, a criminal law professor, wrote via microblog. “State-administered violence is no loftier than criminal violence.” One prominent rights lawyer, Liu Xiaoyuan, insisted that the show, by the national broadcaster CCTV, violated Chinese criminal code by making a spectacle of the condemned. “I found it shocking,” he said in an interview.
The program largely focused on Naw Kham, the Burmese ringleader of a drug gang who was accused of orchestrating the brutal execution of the sailors and then making the crime appear drug related. In a nation where millions work overseas, sometimes in dangerous corners of the world, the killings were especially unsettling. Last April, six men, including Mr. Naw Kham, were apprehended in Laos by a team of investigators that included officers from China, Thailand, Laos and Myanmar.
Mr. Naw Kham and his accomplices were convicted last November during a two-day trial in China’s southwest Yunnan Province. The condemned men, including a Laotian, a Thai and a third of “unknown nationality,” reportedly confessed to the crime.
The two other men who escaped execution received long prison terms. Last month a Chinese public security official told a newspaper that Beijing had considered using a drone strike to kill Mr. Naw Kham but later decided to capture him alive. Given the considerable viewership on Friday, that decision proved to be a public relations coup.
The program included interviews with triumphant police officers, images of the condemned men in shackles and the sort of blustery talking heads that would be familiar to American cable television audiences. The graphic elements that flashed behind the CCTV news anchor featured the tagline “Killing the Kingpin.”...
In a commentary posted on Sina Weibo, the Chinese equivalent of Twitter, CCTV defended the program, saying it demonstrated China’s commitment to justice. “There were no glimpses of the execution. We only saw the drug ringleaders’ weaknesses and fear of death,” it said. “In contrast to brutal murder by his gang, the methodical court trial and humane injections have shown the dignity and civilizing effects of rule of law.”
Shortly before the men were led from their cells to the van that would take them to the death chamber, a reporter asked Mr. Naw Kham to talk about his family and then taunted him by showing him photos of the victims’ relatives. “I want to raise my children and have them educated,” Mr. Naw Kham said with a faint smile on his face. “I don’t want to die.”
I think one could have lots distinct reactions to this notable effort to make more public and prominent the administration of capital justice in China. But, especially in light of on-going US controversies concerning drone warfare, I find especially interesting the report that this programming was only made possible because China decided not using a drone strike to kill Mr. Naw Kham while he was in another country. I wonder if folks who are most troubled by the US use of drone strikes will be quick to praise China for employing a notable different (and much more public and transparent) means to achieve a form of international justice.
Wednesday, February 27, 2013
Doesn't the new USSC report necessarily rebut any appellate "presumption of reasonableness" for within-guideline child porn sentences?Regular readers know that I have never been a fan of the so-called "presumption of reasonableness" for within-guideline sentences adopted by some circuit courts after Booker . This is because, despite its repeated reference and application in the circuits which have adopted it, there has yet to be any appellate rulings which explores — or, for that matter, even expressly discusses — when and how this “presumption” can be rebutted on appeal of a within-guideline sentence and what might be the legal consequences of any such (phantom) rebuttal. In actuality, this purported "presumption" is really just the means some circuits use to declare that any and every within-guideline sentence is functionally immune from substantive reasonableness review: notably, in the eight+ years since Booker, not a single within-guideline sentence has ever been found substantively unreasonable in the circuits that have embraced this so-called “presumption.”
That I said, I remain ever hopeful that those circuits which embrace the so-called "presumption of reasonableness" for within-guideline sentences will try to give some sensible and functional meaning to this appellate review standard. And, as the question in the title of this post suggest, I think the US Sentencing Commission's new report on federal child pornography sentencing (basics here), provides a unique opportunity to give the review standard some real meaning. I come to this conclusion after seeing this key passage (from p. xviii) in the executive summary of the new report:
The current sentencing scheme in §2G2.2 places a disproportionate emphasis on outdated measures of culpability regarding offenders’ collecting behavior and insufficient emphases on offenders’ community involvement and sexual dangerousness. As a result, penalty ranges are too severe for some offenders and too lenient for other offenders. The guideline thus should be revised to more fully account for these three factors and thereby provide for more proportionate punishments.
In short, the US Sentencing Commission is saying that the current federal guidelines for child pornography are broken because they give too much significance to some offense factors and too little to others, and thus guideline-calculated ranges for child porn offenses are "too severe for some offenders and too lenient for other offenders." Put even more directly, the USSC is here declaring that the existing child porn guidelines are not a reasonable means to ensure just, effective and proportionate punishment.
This basic reality in turn prompts my query, which is designed to promote circuits which generally apply the "presumption of reasonableness" for within-guideline sentences to now recognize (and expressly hold) that this appellate presumption does not apply in any case involving the child porn guidelines. In saying this, I am not asserting that this new USSC report necessarily connoted that any and all within-guideline child porn sentence must be declared (or even presumed) substantively reasonable. But I am asserting that, because the USSC has now clearly declared that the existing guidelines now set forth "penalty ranges [that] are too severe for some offenders and too lenient for other offenders," it would be both unjust and obtuse for a circuit court to now presume any within-guideline child porn sentence is substantively reasonable.
Recent related post:
February 27, 2013 in Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentencing around the world, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack
Thursday, February 21, 2013
Japan's new government embraces death penalty via three new executions
As reported in this new piece from The Guardian, headlined " Japan executions resume with three hangings: Hopes dashed of reprieve under Shinzo Abe's government with first sentences carried out since September 2012," Japan new government carried out its first set of executions this week. Here are details on the latest executions and concerning Japan's recent capital punishment history:
Japan has carried out three executions -- the first since the country's conservative prime minister, Shinzo Abe, was elected last December, and a sign that Tokyo will defy international pressure to abolish the death penalty.
The justice ministry said the executions were carried out in the early hours of Thursday in three different locations. One of the condemned men, Kaoru Kobayashi, had been sentenced to death for the abduction, sexual assault and murder of a seven-year-old schoolgirl in 2004. He sent a photograph of the murdered girl to her mother.
The executions, the first since September 2012, could signal a return to more regular hangings under the current justice minister, Sadakazu Tanigaki. "I ordered the executions after giving them careful consideration," Tanigaki told reporters. "These were extremely cruel cases in which the victims had their precious lives taken away for very selfish reasons."
Amnesty International Japan condemned the executions. "The Japanese government cannot be excused from abiding by international human rights standards, just by citing opinion among the public," it said in a statement. Opinion polls put support for capital punishment among the Japanese at about 80%.
Earlier this year Tanigaki indicated he would have no hesitation in signing execution orders; some previous holders of the post had refused to approve them, leading to a de facto moratorium. "I will have to do what needs to be done according to the rule of law," he told journalists, adding that the secrecy surrounding hangings would continue. Inmates are given very little notice before they are led to the gallows and their families are informed only after the executions have taken place. "Even death row inmates have guarantees of privacy and we have to consider the feelings of their relatives," Tanigaki said. "I don't think it is necessarily a good idea to release more information."
At the end of last year Japan had 133 inmates on death row, the highest number since records were first kept in 1949. They include Shoko Asahara, leader of the doomsday cult behind the 1995 sarin gas attacks on the Tokyo subway in which 13 people died and thousands were made ill.
The previous government, led by the left-of centre Democratic party of Japan (DPJ), executed nine people during its three years and three months in office. That included an 18-month period from July 2010 in which no hangings took place. In the three years to 2008 there were 28 executions under LDP administrations.
The DPJ raised hopes among abolitionists in 2010 when it established a panel to look into Japan's use of capital punishment but the body was disbanded without reaching a conclusion in January 2012.
Tuesday, February 12, 2013
"Just Prisons: What Would Jesus Do?"The title of this post is the headline of this lengthy commentary at The Huffington Post authored by Ron Nikkel, who is the President and CEO of Prison Fellowship International. The piece provides a critical religious and international perspective on incarceration and here is an excerpt:
Many people simply take prisons for granted, accepting them as a fact of life for a safe society or at worst being somewhat of a necessary "evil" for justice to be served. The history of prisons is checkered with jails and prisons being used both as unjust instruments of political, social, economic, and ironically religious coercion and control; and in other times and places being used as a rather blunt instrument deemed to serve the course of justice. However, the more I have studied the impact of prisons on the lives of people, the more I see prisons as one of the most confusing, irrational and socially destructive institutions ever devised by humankind. Prisons cannot ever be equated with justice being done. Prisons by themselves do not equate to justice. While prisons may be useful for restraining some offenders and preventing others from committing further crimes whilst they are locked up, most offenders, their families and communities do not benefit from imprisonment. The overall ecology of imprisonment is as counterproductive as dousing a fire with fuel.
Tuesday, January 22, 2013
"Indonesia sentences British woman to death for drug smuggling"The title of this post is the headline of this notable international sentencing story which I suspect will get a significant measure of worldwide attention for various reasons. Here are the details:
A 56-year-old British woman caught smuggling blocks of cocaine in her suitcase has been sentenced to death in Indonesia. Prosecutors in Bali had asked for a 15-year sentence for Lindsay June Sandiford, who was arrested last May carrying what officials said was cocaine worth an estimated $2.6 million.
But a panel of judges opted Tuesday to hand down the death penalty. Their decision was based on the defendant having shown no regret for what she did, Indonesian state news agency Antara reported.
Sandiford, from northeast England, was found to have blocks of cocaine weighing 4.7 kilograms (10.4 pounds) in her suitcase when she arrived on the island of Bali in May, the court heard.
"We were surprised by the decision, because we never expected the death penalty," Ezra Karo Karo, a lawyer acting for Sandiford, is quoted by Antara as saying. He said the judge did not consider mitigating circumstances in his client's case, such as that she acted under the threat of violence to her family, the news agency reported.
The UK Foreign Office confirmed the sentence but said only that it would continue to provide consular assistance. "The UK remains strongly opposed to the death penalty in all circumstances," a Foreign Office statement said.
Indonesia, the world's most populous Muslim nation, has strict laws against drug trafficking. The head of Bali's Customs and Excise Agency monitoring division, Made Wijaya, warned at the time of her arrest that Sandiford could face execution if convicted.
"The main reason is because narcotics can massively endanger the young and, thus, whoever is caught with drugs should be severely punished. If three people can consume one gram of cocaine, then this operation has potentially saved up to 14,000 lives," he said....
Any appeal for Sandiford must be filed within 14 days.... Sandiford's lawyer told Antara that it was likely that his client would appeal the sentence.
Saturday, January 05, 2013
"Mexico considers marijuana legalization after ballot wins in U.S."The title of this post is the headline of this new Los Angeles Times article, which gets started this way:
Forgive the Mexicans for trying to get this straight: So now the United States, which has spent decades battling Mexican marijuana, is on a legalization bender?
The same United States that long viewed cannabis as a menace, funding crop-poisoning programs, tearing up auto bodies at the border, and deploying sniffer dogs, fiber-optic scopes and backscatter X-ray machines to detect the lowly weed?
The success of legalization initiatives in Colorado and Washington in November has sparked a new conversation in a nation that is one of the world's top marijuana growers: Should Mexico, which has suffered mightily in its war against the deadly drug cartels, follow the Western states' lead?
Mexico's new president, Enrique Peña Nieto, opposes legalization, but he also told CNN recently that the news from Washington and Colorado "could bring us to rethinking the strategy."
Such rethinking has already begun. Shortly after the approval of the U.S. ballot measures, the governor of Colima state, Mario Anguiano, floated the idea of a legalization referendum for his small coastal state. In the Mexican Congress, Fernando Belaunzaran, a lawmaker with the left-wing Democratic Revolution Party, has introduced a national legalization bill. The cartels probably derive 20% to 25% of their drug export revenue from marijuana, and Belaunzaran contends that legalization will eat into profit that allows the cartels to buy the advanced weapons that are the cause of much bloodshed.
Monday, October 29, 2012
"China Sentences Man To Year In Jail For Ringing Exam Bell 5 Minutes Early"The title of this post is the headline of this (amusing?) article which tells a story that is arguably not quite as bad as it sounds or maybe actually even worse. Here are the details:
A man in the central Chinese province of Hunan was sentenced to a year in prison for improperly administering the nation's ultra-competitive national college entrance exam, according to multiple reports.
Xiao Yulong, now a former employee of the high school in which the exam was administered, rang the bell and ended the exam four minutes and 48 seconds early, which disrupted the test for approximately 1,000 students, according to the Xinhua news agency.
A written statement issued by the county people's court on October 26 said that Xiao, 54, "was careless in his work and mistakenly rang the bell too early, resulting in adverse social impact." He was officially sentenced to one year in jail with a one-year reprieve for negligence. However, the one-year reprieve means he will likely serve "either very little or no time inside," Reuters reports.
Thousands of students and parents had gathered in protest against the teacher's actions at the local ministry of education and the school prior to Xiao's sentencing.
The reported reprieve suggests that Xiao Yulong was ultimately just given relative a slap on the wrist; yet it is still remarkable and disturbing that an official's negligent test administration became the subject of a criminal prosecution. Bringing this story back to the US, perhaps there is a lesson here for politicians worried about underperforming public school systems and competing in the global market with China. Maybe mayors like Rahm Emanuel need to start advocating for jail time for negligent teachers like in China when facing off with teachers' unions (as public school battles rage on in Chicago and elsewhere).
Monday, September 24, 2012
Notable contrasts between Irish and US sentencing responses to child porn possession offensesThe Irish Examiner has this notable new piece, headlined "Sentences contrast in Ireland and US," discussing the very different punishment schemes for child porn downloaders in two not-so-different nations. Here is how the piece gets started:
What is an acceptable sentence for the possession of child pornography? That’s downloading and viewing the images, not being physically present when the abuse was carried out and the images made.
Consider two cases which progressed through the courts on opposite sides of the Atlantic within a year of each other.
In May, a British national, Simeon Betts, appeared in court in Ireland charged with a stash of child pornography which included 50 videos. The material found on three laptops included the rapes of children as young as four, and gardaí said the level of abuse was of the "upmost scale". Adult males were filmed raping the children, and in one instance an animal also featured in the abuse. For the possession of such sickening material, Betts, aged 45, was sentenced at Limerick Circuit Court to four years in prison, with the final two years suspended.
Now consider the case of Daniel Enrique Guevara Vilca, a 26-year-old who appeared in a Florida court room in November. Vilca had been caught with a significant stash of images — he faced 454 counts. Some of the videos and pictures showed boys aged between six and 12 years engaged in sexual activity with adults and each other. For possessing the images, Vilca was sentenced to life in prison without the possibility of parole....
These two cases show the extremes in which different jurisdictions view the crime of child pornography — and how the leniency or severity are both subject to significant scrutiny among their populations.
In America, the US Sentencing Commission is reviewing the sentencing guidelines for the crime. A survey of the country’s federal judges even found that 70% thought the sentences were too high. Many possession offences in the US carry a minimum tariff of five years and the average sentence handed down is seven years.
Here, sentencing for child pornography crimes falls under the Child Trafficking and Pornography Act, 1998. That legislation states that, for producing or distributing child pornography, the maximum sentence is 14 years in prison. For possession, the maximum sentence is five years.
Monday, September 10, 2012
After high-profile child rapes, Koreans talk of physical castration and harsher sentencing for sex offendersThis news report from Korea, which is headlined "How should Korea combat pedophilia?", provides a useful reminder that America is not exceptional in its intense sentencing policy response to high-profile sex offenses against children. Here are excerpts:
The kidnap and rape of a 7-year-old girl in Naju, South Jeolla Province, earlier this month has reopened the debate on how to deal with society’s most reviled criminals. Like the case of Cho Doo-soon, who brutally raped an 8-year-old girl in 2008, Ko Jong-seok’s heinous act has sparked a raft of proposals from lawmakers and law enforcement to deal with those who prey on children. In the days after the attack, the National Police Agency announced one month of increased police patrols and a crackdown on child pornography, while a lawmaker from the Saenuri Party, Rep. Park In-sook, proposed a bill that would allow for the physical castration of child rapists.
“How much these children suffer is unbelievably much, much more than the penalty they (the perpetrators) receive from the judge,” Park, a cardiologist by profession, told The Korea Herald on Friday. Park rejected the suggestion that the procedure would be at odds with the principles of a civilized society, adding that it has few side effects and does not even require a general anesthetic.
“These children live with permanent damage, physically, mentally, and psychologically, neurologically … and economically … So if you compare the human rights of these criminals with the victims, whose human rights are more important? Who should be protected? It is just incomparable,” she said, pointing out that Finland, the Czech Republic and Germany, among other countries, allow the practice.
Park, who has also proposed the introduction of a smartphone application that would alert users to the location of convicted sex offenders within a 1 km radius, added that a recent opinion poll showed that 96 percent of Koreans support her castration bill proposal. “This is the philosophy I had all my life but I had no chance to speak to the public until I came to the National Assembly,” she said. “Also, the important thing is these crimes are getting worse and becoming more often.”
When it comes to an effective legal response to those who target children, understanding more about the scale and nature of the problem is crucial, said Korean Institute of Criminology research fellow Kim Han-kyun. “The first step we need to take is to study and research the real reality of pedophiles and sex offenders against children in our society, then we may have specific and substantive measures against pedophiles,” said Kim. “But the problem is no one knows yet how many pedophiles there are in our society and (how) serious the problem of pedophiles is now at the moment in our society.”
While it is unclear how many pedophiles exist in Korea ― U.S. estimates put the figure there at around 4 percent of the population ― recorded sex crimes against the young have risen in recent years. The number of cases of sexual assault and rape against minors soared from 857 in 2007 to 2,054 last year. Even more strikingly, the offender in 43 percent of cases from January to June 2011 involving victims under 13 received a suspended sentence. Where prison sentences have been applied, they have often been seen by the public as excessively lenient. Cho Doo-soon’s attack on the 8-year-old known only as Na-young led to a 12-year prison sentence, a punishment widely denounced as too light for a crime that left a school girl with permanent, life-changing injuries.
“The statutory punishment on sex offenders and sex offenders against children is severe enough but the problem is the sentencing,” said Kim. “Although South Korean legislators have made very strict and severe punishment, the judges have given soft sentences. I think the sentencing guidelines for sex offenses against child should be amended for more harsh and strict sanctions on such offenders.” A conservative, male-dominated judiciary is likely part of the reason for soft sentencing, added Park....
While pedophilia has long been termed a mental disorder, an increasing body of opinion in recent years has defined it as an unalterable sexual orientation, calling into question the effectiveness of treatment. In the U.S., about 50 percent of convicted pedophiles reoffend, though programs to treat the predilection have shown mixed success.
Explanations for the root causes also differ, ranging from childhood abuse to less white matter in the brain. “Pedophilia is related to low self-esteem, poor social skills and impaired self-concept, psychologically,” said Park. “The patients tend to be very shy and passive-aggressive when it comes to personality. Some doctors say this disorder is related to inappropriate attachment with the primary care-giver in childhood. Personally, I reckon poor cognitive inhibition of deviated sexual fantasy is the main cause of actual child sexual molestation.”
Tuesday, August 28, 2012
"Iraq announces 21 executions in single day"The title of this post is the headline of this new press report, which provides these details:
Iraq has executed 21 people convicted of terror-related charges, including three women, on the same day, a spokesman said on Tuesday, bringing to 91 the number of people executed so far this year. The executions come despite a call from the UN’s human rights chief for a moratorium on the use of the death penalty in Iraq, amid concerns over the lack of transparency in court proceedings.
“The justice ministry carried out 21 executions against those condemned of terrorist charges, including three women terrorists,” Haidar Al Saadi said in a text message. He did not give any further details. A justice ministry official said the executions were carried out on Monday morning.
Iraq has carried out several mass executions in 2012, including one in which 14 people were put to death on February 7, and another in which 17 were executed on January 31.
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Saturday, August 25, 2012
Gambia gets real serious about carrying out death sentences real fastAs reported in this AP article, the African country of Gambia has just completed nine executions and it gearing up for dozens more. Here are the details:
Gambia has executed nine convicted criminals, the Civil Society Associations reported Saturday as Amnesty International warned that dozens more on death-row are under imminent threat as the West African nation carries out its first death sentences in 27 years.
President Yaya Jammeh vowed earlier this month to execute all inmates sentenced to death "to ensure that criminals get what they deserve, that is, those who killed are killed and those who deserve to be put away from the society are put away from the society in accordance with the law."
A government statement issued late Friday night said "All persons on death row have been tried by the Gambian courts of competent jurisdiction and thereof convicted and sentenced to death in accordance with the law. They have exhausted all their legal rights of appeal as provided by the law."
It added "the peace and stability of our beloved nation as regards to protection of the lives, liberty and property of individuals must at all cost be preserved and jealously guarded."
Eight men and one woman were removed from their prison cells Friday night and executed, London-based Amnesty reported, quoting "credible sources." It said two of those executed are believed to be foreigners from Senegal.
A barrage of protests met the move, with expressions of shock coming from the African Union, the Economic Community of West African States, the French and Nigerian governments and human rights groups. It was not clear how the prisoners were executed, but Gambia's constitution says executions should be by hanging. "What is however clear is that inmates were rounded up at 9.30 p.m. Thursday August 23 and that by the morning of August 24, the bodies were actually lying in the Mile Two Prison yard," the Civil Society Associations of Gambia reported.
Amnesty warned "more persons are under threat of imminent executions today and in the coming days." Amnesty said the executions are the first in Gambia since 1987. Gambia reinstated the death penalty in 1995 but had not executed anyone, former minister Omar Jallow has told The Associated Press.
Amnesty said there were 47 inmates on death row before Friday's executions: government figures put the number at 42 men and two women and another three men reportedly also received the death sentence this year.
Capital punishment can be imposed in Gambia for murder and treason. Three of those reportedly executed had been sentenced for treason, Amnesty said. It's not known how many of those on death row have been sentenced for alleged coup-plotting, a treasonable offense that could indicate Jammeh is using the executions to get rid of political opponents.
Perhaps those deeply troubled by how California officials have handled its (now seemingly dormant) death penalty lately ought to try to get officials in Gambia to give some instructions to capital punishment colleagues on a very different west coast.
Friday, August 24, 2012
"21-Year Sentence For Norwegian Killer Of 77; But He May Serve For Life"The title of this post is the headline of this NPR report on the sentencing in Norway of Anders Breivik. I selected this piece to link on the blog because it provided a seemingly more accurate (and reassuring?) headline than some other press accounts which perhaps suggest Breivik could be a free man within a decade. Here is how NPR explains matters:
At first the news may be a shock because of what would seem to Americans to be such a relatively light punishment considering the crime: Anders Behring Breivik, the "self-styled anti-Muslim militant" who killed 77 people in Norway on July 22, 2011, was sentenced today by a five-judge panel in Oslo to a minimum of 10 years in prison and a maximum of 21 years, as The Associated Press reports. Twenty-one years is the most Norwegian law would allow. There is no death penalty in Norway.
But, the wire service adds: "Such sentences can be extended as long as an inmate is considered too dangerous to be released. Legal experts have said that in Breivik's case that could mean he will spend the rest of his life in prison." The Norway Post puts it this way: the prison sentence can be "prolonged at a later date, five years at a time, if he is deemed to remain a danger to society."
Part of today's ruling also focused on the issue of whether Breivik is sane enough to be held criminally responsible for the slaughter. The court concluded he is. On Morning Edition today, New York Times correspondent Alan Cowell said the verdict and sentence is something of a victory for Brevik because he did not want to be declared insane. "If he'd been found insane, he could have been treated indefinitely," Cowell said. Also, in Breivik's mind the sanity judgment lends credibility to his crimes.
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Thursday, August 23, 2012
"Mass killer's Norwegian prison cell has treadmill, computer access"The title of this post is the headline of this notable Fox News report providing a remarkable perspective on how some other nations treat their most notorious criminals. Here is how the lengthy story begins:
Accused mass murderer Anders Behring Breivik's Norwegian prison cell is more spacious than most New York City apartments. The confessed killer, who will receive his sentence Friday for killing 77 people in a bombing and shooting rampage at a youth camp, was transported Wednesday to Norway's Ila Prison, just outside Oslo.
The high-security prison offers Breivik not one, but three 86-square-foot cells. One cell functions as a bedroom, another as an exercise room, complete with treadmill, and the third is a study, where Breivik can use a laptop computer.
Officials at Oslo's Ila Prison say the goal is to eventually transfer Breivik to join other prisoners at section of the jail that offers access to a school that teaches from primary grades through university-level courses, a library, a gym, and allows inmates to work in the prison's various shops and participate in leisure activities. It's all about a philosophy of humane prison treatment and rehabilitation that forms the bedrock of the Scandinavian penal system. "I like to put it this way: He's a human being. He has human rights. This is about creating a humane prison regime," said Ellen Bjercke, a spokeswoman for Ila Prison.
Since Breivik's guilt is not in question, the key decision for the Oslo district court Friday is whether to declare him insane after two psychiatric teams reached opposite conclusions on his mental health. If found to be mentally fit, Breivik would face a sentence of "preventive detention." Unlike a regular prison sentence -- which can be no longer than 21 years in Norway -- that confinement option can be extended for as long as an inmate is considered dangerous to society. It also offers more programs and therapy than an ordinary prison sentence.
If declared insane, the confessed killer will be the sole patient of a psychiatric ward that Norway built just for him at the prison, with 17 people on staff to treat him. It cost between 2 million and 3 million kroner ($340,000-$510,000), according to Norway's Health Ministry. The facility, featuring a 100-square-foot cell with a bathroom, would offer Breivik some recreational and educational options with therapists from a psychiatric hospital, but not the breadth of options available to prison inmates. Bjercke estimated the cost of keeping Breivik there at 7 million-10 million kroner a year ($1.2 million-1.7 million).
While in isolation, Breivik has access to TV and newspapers and a computer, but no Internet connection. He has three cells instead of one in "compensation" for not having access to activities offered to other inmates, Bjercke said. In addition, prison staff and a priest come see him more often than other inmates, so that he has someone to talk to. "Isolation is torture," Bjercke said.
Monday, July 30, 2012
Huge Iranian fraud results in death sentences
As reported in this New York Times piece, which is headlined "Iran Sentences Four to Death Over $2.6 Billion Bank Fraud," Iran has imposed a notable set of sentences in a notable fraud case. Here are the details:
In the first sentences to be handed down in a $2.6 billion embezzlement case, an Iranian court ordered the death penalty for four people in the fraud that was uncovered in a network of Iranian banks last year, Iranian state media reported on Monday.
The four, who were not named in the report by the Fars news agency, were among 39 suspects who were convicted in what the Iranian authorities have described as the biggest financial swindle in the country’s history. The top prosecutor, Gholam Hossein Mohseni-Ejei, told reporters that two of the defendants had been given life sentences, while the others were given sentences of up to 25 years....
The other suspects were not named, but have been said to include managers of bank branches, and a number of clerks who were accused of accepting bribes. Fars quoted Mr. Mohseni-Ejei as saying that the other sentences that were handed down included prison terms of 10 and 20 years, as well as lighter sentences.
Thursday, July 26, 2012
A comparative perspective on "The Life Sentence and Parole"
Especially given changes to LWOP sentencing in the United States now required by the Supreme Court's Eighth Amendment work in Graham and Miller, this new article appearing on SSRN provides interesting and important comparative insights on long prison terms. The article by Diarmuid Griffin and Ian O'Donnell is titled "The Life Sentence and Parole," and here is the abstract:
Taking the life sentence as the new ‘ultimate penalty’ for many countries, this paper explores the factors associated with the release of life-sentence prisoners on parole. The Republic of Ireland is selected as a case study because it is in the unusual position of being influenced by European human rights norms as well as by the Anglo-American drive towards increased punitiveness. As an apparent outlier to both the human rights and punitive approaches, or perhaps as a hybrid of sorts, the relative impact of the two models can be elucidated. The article also provides an example of how small penal systems can be resistant to broader trends and the value of directing the criminological gaze upon countries where it seldom falls.
Sunday, July 22, 2012
Do US civil commitment procedures risk a "flagrant denial" of human rights?
The question in the title of this post is my response to this (slightly dated) article from the UK's Independent, which is headlined "Court blocks Shawn Sullivan's US extradition." (Many thanks to the helpful reader who altered me to a story that developed the same day as the SCOTUS health care ruling). Here is the basic back story:
US government attempts to extradite from Britain a man accused of child sex crimes were blocked by the High Court.... [as] judges sitting in London allowed an appeal against extradition by fugitive Shawn Sullivan, 43, after the American authorities refused to give an assurance that he would not be placed on a controversial sex offenders treatment programme in Minnesota.
Sullivan has been described as one of the US's most-wanted alleged sex criminals, and has also been convicted of sexually assaulting two 12-year-old girls in Ireland. His lawyers argued he could be declared "sexually dangerous" and placed on the US programme without a trial and with no hope of release.
Lord Justice Moses and Mr Justice Eady ruled on June 20 there was a real risk that, if extradited, Sullivan would be subjected to an order of civil commitment to the treatment programme in a "flagrant denial" of his human rights. The judges then gave the US government a last opportunity to provide an assurance that there would be no commitment order made.
Today Lord Justice Moses announced it had been confirmed by the Americans in a post-judgment note that "the United States will not provide an assurance", and Sullivan's appeal under the 2003 Extradition Act was therefore allowed. "The appellant will be discharged from the proceedings," said the judge.
Sullivan, who has joint Irish-US nationality, is wanted to stand trial for allegedly abusing three American girls in the mid-1990s. He was arrested in London in June 2010 while living with Ministry of Justice policy manager Sarah Smith, 34, in Barnes, south-west London. They married while he was held at Wandsworth Prison, before he was granted bail.
His counsel Ben Brandon said at a one-day hearing in April that no one had been released from the treatment programme, operated by the Department of Human Services in Minnesota, since it began in its current form in 1988. Commitment usually followed a person completing a prison sentence but a criminal conviction was not necessary for it to take place, said Mr Brandon. Aaron Watkins, appearing for the US government, told the court Sullivan did not satisfy the criteria for civil commitment but agreed no assurances had been given.
The judges ruled there was a real risk Sullivan would face commitment and a flagrant denial of his right not to suffer loss of liberty without due process, a right protected by Article 5.1 of the European Convention on Human Rights.
Lord Justice Moses said under the programme "there is no requirement that the offences took place recently nor, indeed, that the misconduct resulted in conviction, provided that the misconduct is substantiated by credible evidence". Mr Justice Eady said the risk of a flagrant denial of human rights was "more than fanciful".
The full ruling referenced in this news account is available at this link, and here are key passage from the ruling:
Civil commitment is unknown to European law, but is a process available in 20 states in the United States. Minnesota's law is said to be more draconian than many others.... [The] Office of the Legislative Auditor (OLA) for the State of Minnesota ... reports that the standard for commitment is relatively low, and many sexual offenders qualify for commitment.......[and] of the 600 committed since 1988, the evidence suggests that not one has been released, even on a conditional, supervised basis....
[T]he essential and justifiable purpose of these proceedings is to ensure that the appellant faces the trial he ought to face in respect of the serious allegations made against him. It is plainly in the interests of justice that he should face such a trial. Extradition is not being sought for the purposes of civil commitment....
[But] I conclude that there is a real risk that if returned Mr Sullivan will be the subject of an order of civil commitment ... [and] that there is a real risk that if extradited the appellant might be subject to an order for civil commitment within Minnesota and that that amounts to a risk that he would suffer a flagrant denial of his rights enshrined in [Art. 5 of the European Convention on Human Rights].
Monday, July 09, 2012
"Singapore to relax, but not remove, death penalty"
The title of this post is part of the headline of this new Reuters article, which gets started this way:
Singapore's deputy prime minister on Monday said the country plans to ease its mandatory death penalty in some drug and murder cases but not abolish the ultimate punishment that human rights groups condemn as barbaric.
The wealthy Southeast Asian city-state, which has a zero-tolerance policy for illegal drugs and imposes long jail terms on convicted users, has hanged hundreds of people -- including dozens of foreigners -- for narcotics offences in the last two decades, Amnesty International and other groups say. That approach prompted science fiction writer William Gibson to describe Singapore as "Disneyland with the death penalty".
But the government, reflecting changes in "our society's norms and expectations", will put forward a draft law by the end of this year to give judges more leeway to deal with certain drug and murder cases, Deputy Prime Minister Teo Chee Hean told parliament. "While there is a broad acceptance that we should be tough on drugs and crime, there is also increased expectation that where appropriate, more sentencing discretion should be vested in the courts."
To avoid execution for drug trafficking, two specific conditions must be met, he said. First, the accused must have acted only as a courier, with no other part in the supply or distribution. "We also propose to give the courts the discretion to spare a drug courier from the death penalty if he has a mental disability which substantially impairs his appreciation of the gravity of the act, and instead sentence him to life imprisonment with caning," Teo said.
This sure does not sound like a significant relaxation of the death penalty in Singapore.
Thursday, July 05, 2012
U.N. Secretary-General calls for worldwide abolition of capital punishment
As reported in this AP article, "U.N. Secretary-General Ban Ki-Moon has called for the death penalty to be abolished." Here is more:
Ban told a panel on the issue convened Tuesday by the U.N. High Commissioner for Human Rights: "The taking of life is too absolute, too irreversible, for one human being to inflict on another, even when backed by legal process."
Since the General Assembly endorsed a call for a death penalty moratorium in 2007, several nations have abolished the death penalty, including Argentina, Burundi, Gabon, Latvia, Togo and Uzbekistan. The U.N. says 150 nations have either abolished the death penalty or do not practice it.
Ban said he was especially concerned that the death penalty is still used for juvenile offenders, and 32 nations use it for drug-related offenses.
For a host of reasons, I do not expect US officials to echo this UN call for worldwide abolition of the death penalty. But I could imagine the US agreeing to a UN resolution which says the death penalty should be reserved for only the very worst crimes such a intentional murder, treason and acts of terrorism. I wonder if both opponents and supporters of the death penalty inside the US would be willing and even eager to have the US serve as a potent international advocate for limiting the use of the death penalty in this way worldwide.
Wednesday, July 04, 2012
Judge down under laments mandatory 20 years (with parole) for brutal contract killer
The debates on this blog over the Supreme Court's recent work in Miller finding unconstitutional a mandatory LWOP sentence for a juvenile killer (see comments to posts here and here) have been robust and at times (over)heated. With the Miller case and controversy fresh in mind, I found this new local story from Australia quite interesting and comparatively telling. The story is headlined "Judge slams mandatory sentencing laws as 'unjust'," and here are excerpts:
A Supreme Court judge has criticised the Northern Territory sentencing regime as "unjust and unfair". Justice Dean Mildren made the comment after sentencing Darren Jason Halfpenny to 20 years in jail for the contract killing of a man in Katherine.
Justice Mildren said he was required to impose a minimum 20 year prison term because of the mandatory sentencing regime in the Territory. "It is unjust and unfair, and contrary to the public interest, that prisoners who plead guilty ... and are remorseful ... are left in a situation where their earlier release is left in the hands of the executive (government)," he said.
Russell Golflam of the Criminal Lawyers Association of the Northern Territory agrees. "Mandatory sentencing is, in principle, obnoxious," he said. Mr Golflam says judges should be given the power to do the job that they're paid to do; impose appropriate penalties according to the circumstances of the case. "Parliament and governments should not take that job away from judges," he said. He is calling for the Sentencing Act to be amended.
Justice Mildren recommended that Halfpenny be released on parole after 14 years because he will testify against his co-accused in the murder....
During the trial, the court heard Darren Halfpenny and two friends, Christopher Malyschko and Zac Grieve, donned shower caps and gloves before entering the Katherine house where Ray Niceforo lived. The court was told Mr Niceforo, 41, was struck in the head with a blunt object seven times, then had a rope tied around his neck.
His body was wrapped in a tarpaulin and put into a van before being dumped in bushland. The body was found the following day and an autopsy found Mr Niceforo died from a blunt force head injury or asphyxiation.
Halfpenny was questioned by police a few days later and confessed. He later agreed to testify against his co-accused, Malyschko and Grieve, who have been charged with murder.
The court was told the three men carried out the killing for a payment of $5,000 each. Crown prosecutor Jack Karzevski, QC, said the contract killing was commissioned by Bronwyn Buttery, the ex-partner of Mr Niceforo, who has also been charged with murder.
So, let's do a little compare/contrast concerning judicial sentencing attitudes in the land down under and in the land of the free:
--- in Australia, a sentencing judge is bemoaning as "unjust and unfair" a legislative requirement to impose a 20-year prison term with parole on an adult who intentionally committed a brutal contract murder. This kind of homicide in the US would clearly qualify as first-degree murder in just about every US state and in most would make the defendant eligible for the death penalty. The defendant's decision to plead guilty and cooperate would likely prompt most US prosecutors to take the death penalty off the table but likely still would make a (perhaps mandatory) LWOP sentence still possible (even probably) for the premeditated and henious crime.
--- in the United States, four Justices of our Supreme Court in Miller have bemoaned the majority's ruling that the US Constitutional prohibits a legislative requirement to impos a life prison term without parole on a 14-year-old who unexpectedly had a role in the another's lethal shooting of a store clerk during an intentional robbery. This kind of homicide in Australia, I suspect based on this somewhat dated report on homicide sentencing patterns, would likely result in the offender getting a prison sentence of just over 10 years with the possibility of parole a few years soon.
For a host of reasons, I am strongly disinclined to assert that Australia's sentencing approach to murder offenses is to preferred to the US system, and that kind of claim is not the point of this post. Rather, my goal here is just to highlight (especially on July 4th, the day we most celebrate America as the land of the free and the home of the brave) the reality that a judge in Australia is quick to lament having to impose a 20-year prison term with parole on a brutal adult contract killer, while in Miller we see four Justices being quick to lament our Constitution being interpretted to giving a 14-year-old convicted of felony murder just the chance to seek a sentence less than life prison term without parole.
July 4, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentencing around the world, Who Sentences? | Permalink | Comments (25) | TrackBack