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
Friday, June 22, 2012
New Hampshire Gov apparently opts for "die" over "live free" with veto of medical marijuana bill
The state motto for New Hampshire is "Live Free or Die." Based on this AP article, headlined "NH gov Lynch vetoes bill legalizing home cultivation of marijuana for medical uses," it would appear that New Hampshire's (Democratic) governor has decided die is the preferred choice to living free when it comes to marijuana. Here are the basics:
As promised, Gov. John Lynch has vetoed a bill that would legalize the home cultivation of marijuana for medical purposes.
The bill would allow patients with debilitating medical conditions or the patient's designated caretaker to cultivate and possess up to six ounces of marijuana, four mature plants and 12 seedlings at a registered location. Lynch says that would lead to a virtually unlimited number of potential cultivation sites, making it impossible to control the distribution and prevent illegal use.
Lynch also vetoed a similar bill in 2009. The current bill passed both the House and Senate with wide margins, making it likely that the Legislature could override Lynch's veto next week.
Governor Lynch yesterday released this long statement explaining the reasons for his veto, and these passages from the statement provide a great indication of how effective law enforcement and its vision of "big brother government" can be in blocking these sorts of criminal justice reforms:
Law enforcement has serious concerns about preventing the unauthorized use of marijuana under this legislation. SB 409 requires that the cultivation locations be registered with the N.H. Department of Health and Human Services. But the bill restricts the identification of those cultivation locations to law enforcement only in the very narrow instances where an individual has been arrested and claims to be engaged in the medical use of marijuana, or where state and local law enforcement have probable cause that marijuana is being cultivated or used at a particular location and seek confirmation that the cultivation or use is for medical purposes.
While SB 409 requires that marijuana for medical use be cultivated in a "locked and enclosed site," neither state nor local law enforcement is authorized to generally inspect and confirm that these conditions are being maintained. The inspection and oversight of cultivation sites is assigned to the Department of Health and Human Services. The Department has neither the staff nor the statewide presence to adequately regulate the security of marijuana cultivation sites, which are unlimited in number. Effective and continuous oversight of cultivation sites is critical to prevent unlawful access to marijuana.
In other words, NH Gov Lynch says here he needed to veto this bill in part because cops and prosecutors are not being given permanent and unlimited authority to engage in "continuous oversight" of any and everyone who registers to grow marijuana for medical purposes. Yeesh.
Importantly, as reinforced by this new Politico piece, headlined "New Hampshire speaker touts conservative wins," in the Granite state this pot policy debate is not a left/right, soft versus hard on crime matter. Rather, the Republican-dominated legislature plainly understands in New Hampshire than a real commitment to freedom and limited government should mean letting people grow the wicked weed in some cases. In telling contrast, the Democratic governor of New Hampshire plainly appreciates that a real commitment to a nanny state must mean restricting any and all access to the wicked weed unless and until big brother government can be sure to be able to keep a close watch on when and how that weed is being used.
Meanwhile, for some (not quite closely) related news from another notable jurisdiction, check out this new press article headlined "Uruguay says it may sell marijuana to combat cocaine." Here is the heart of this story:
Selling marijuana is part of a package of measures meant to combat the abuse of cocaine and pasta basica, a drug akin to crack, diverting Uruguayan drug users toward marijuana instead. The measures come after a recent rash of gang and drug crime in the ordinarily peaceful nation.
If Uruguayan lawmakers agree, theirs would be the first country where the government has not only legalized or regulated marijuana but taken over the market, experts say. Backers of drug legalization and regulation praised the idea as an intriguing step forward.
“Mothers wanting to protect their children should realize that a strictly regulated market is much safer than an illegal market,” said Amanda Fielding, founder of the Global Initiative for Drug Policy Reform based in Britain. "We need to let governments experiment -- cautiously -- with policies that might minimize harm."
That argument was disputed by drug opponents, who contend that getting government into the marijuana business won't curb the black market or stop users from moving on to harder drugs.... "Why would people pay taxes and higher prices and put themselves out there to be known by the government?" asked Calvina Fay, executive director of the Drug Free America Foundation based in Florida. Since the government will only sell to adults, "kids will become the target of the black market."
Sunday, June 03, 2012
Taiwan struggling with death penalty administration
A helpful reader alerted me to this intriguing new BBC article concerning controversies over the operation of the death penalty in Taiwan. The article is headlined "Death penalty dilemma dividing Taiwan," and here are excerpts:
In 1997 a Taiwanese soldier was executed for murder, despite there being no evidence against him. The authorities last year admitted he was innocent and compensated his family, but legal experts warn a similar tragedy could happen again under the current judicial system.
Chiang Kuo-ching was convicted of raping and killing a five-year-old girl. He was one of two soldiers who worked in the same building as the girl's mother, and had failed a lie detector test because he was scared. He insisted he was innocent, but was executed at the age of 21.
After a long campaign by his parents, investigators reopened the case in 2010 and indicted a man with a history of sexual offences last year. The government admitted Mr Chiang was tortured into confessing and late last year apologised to his family.
Despite this alarming case, Taiwan's judges continue to sentence defendants to death with no material evidence, such as fingerprints or DNA, experts say. Instead, they rely mainly on confessions or co-defendants' statements, and routinely accept as evidence police interrogations that are not recorded or videotaped, even though the law requires recordings to prevent police torture, lawyers and others say.
"The problem is even though on paper judges are supposed to follow the principle of innocent until proven guilty, in practice many don't," said Lin Feng-cheng, head of Taiwan's Judicial Reform Foundation. "They and the society want to quickly solve a case and bring justice to the victims' families," he said....
From 2006 to 2009, no executions were carried out, as the government tried to bring Taiwan closer to the international trend of abolishing the death penalty. But the moratorium ended in 2010 after former Justice Minister Wang Ching-feng inadvertently drew attention to it, by publicly stating that she would not sign off on any executions.
Facing public pressure, President Ma Ying-jeou replaced Ms Wang with Tseng Yung-fu, who promptly ordered four people be executed, and another five last year. Taiwan's judges — most of whom favour the death penalty — meanwhile sentenced 15 people to death at the Supreme Court level last year, the highest number in the past decade....
Taiwan's government says it wants to eventually abolish the death penalty, but not until it can convince the public. Surveys show that more than 70% of the population favours it. "At present, the majority of the people in Taiwan are still opposed to the abolition of the death penalty and therefore we think it is inappropriate for the government to do away with the death penalty right now," said Chen Wen-chi, an adviser and spokeswoman for the Ministry of Justice....
There are 57 inmates currently on death row. At least one of them, and four others sentenced to death but still undergoing appeals, were convicted with no material evidence, Lin Feng-cheng said. "The mistakes made in Chiang Kuo-ching's case are typical of mistakes still made in Taiwan," said Mr Lin. "We believe if we continue the death penalty, the risks are very high."
Saturday, June 02, 2012
Protests in Egypt after sentencing of Mubarak and other former leaders
I never quite know how to react to sentencings in other nations of international figures, but this New York Times story indicates that Egyptian are not reacting especially well to the sentencing of its former leader. This new piece is headlined "New Turmoil in Egypt Greets Mixed Verdict for Mubarak," and here are excepts:
An Egyptian judge on Saturday sentenced former President Hosni Mubarak to life in prison as an accessory in the killing of unarmed demonstrators during the protests that ended his 30 years of autocratic rule.
For many Egyptians, the conviction — the first of an Arab leader detained after last year’s uprisings — might have been one of the most important achievements so far of the revolution that stunned the world 16 months ago but has stuttered ever since. The country is still awaiting the ratification of a new constitution, the election of a new president and the hand-over of power by its interim military rulers.
Even that victory, however, appeared tenuous. Lawyers critical of Mr. Mubarak warned that the verdict was vulnerable to appeal. The judge, Ahmed Rafaat, seemed to leave an opening for reversal, stating that the prosecutors had presented no evidence that either Mr. Mubarak or his top aides had directly ordered the killing of protesters. Instead, the judge found that Mr. Mubarak was an “accessory to murder” because he had failed to stop the killing, a rationale that lawyers said would not meet the usual requirements for a murder conviction under Egyptian or international law.
The judge sentenced Mr. Mubarak’s feared former interior minister, Habib el-Adly, to the same penalty for the same reason. But he acquitted several lower-ranking officials in the chain of command responsible for the police, raising more questions about responsibility for the killings.
Mr. Rafaat also dismissed corruption charges against Mr. Mubarak and his deeply unpopular sons, Alaa and Gamal, on technical grounds. By late afternoon, thousands of protesters angry at the limits of the decision were pouring into the streets in Cairo, Alexandria, Suez and elsewhere.
Against a backdrop of military rule, in which the generals, prosecutors and judges were all appointed by Mr. Mubarak, the degree of judicial independence is impossible to know. Lawyers and political leaders called the decision political, and demonstrators denounced the ruling as a sham aimed at placating the street with a seemingly tough verdict that would collapse on appeal....
Mr. Mubarak, 84, was housed during the trial in a military hospital where he enjoyed visits from his family, according to news reports, and a daily swim. After the verdict, a helicopter flew him to a Cairo prison.
Wednesday, May 30, 2012
Former Liberian leader sentenced to 50 years for war crimes at ICC
As reported in this New York Times article, "Charles G. Taylor, the former president of Liberia and a once-powerful warlord, was sentenced on Wednesday to 50 years in prison over his role in atrocities committed in Sierre Leone during its civil war in the 1990s." Here is more:
The judge presiding over the sentencing in an international criminal court near The Hague said Mr. Taylor had been found guilty of “aiding and abetting, as well as planning, some of the most heinous and brutal crimes recorded in human history” and that the lengthy prison term underscored his position at the top of government during that period....
Mr. Taylor was the first head of state convicted by an international court since the Nuremberg trials after World War II. Prosecutors had sought an even longer sentence of 80 years. If carried out, the term decided on Wednesday would likely mean the 64-year-old Mr. Taylor will spend the rest of his life behind bars. Asked to stand as the sentence was read, he looked at the floor.
His legal team said it would immediately file an appeal. "The sentence is clearly excessive, clearly disproportionate to his circumstances, his age and his health and does not take into account the fact that he stepped down from office voluntarily," said Morris Anya, one of the lawyers representing Mr. Taylor.
The prosecution said it was considering its own appeal, both to lengthen the sentence and to broaden the responsibility attributed to Mr. Taylor for crimes committed under his leadership....
After more than a year of deliberations, the Special Court for Sierra Leone found Mr. Taylor guilty in late April of crimes against humanity and war crimes for his part in fomenting mass brutality that included murder, rape, the use of child soldiers, the mutilation of thousands of civilians, and the mining of diamonds to pay for guns and ammunition. Prosecutors have said that Mr. Taylor was motivated in these gruesome actions not by any ideology but rather by “pure avarice” and a thirst for power.
Tuesday, May 29, 2012
Florida courts struggling with how to apply Graham to multi-decade juve sentences
This new AP piece, headlined "Fla. justices asked to rule on juvenile sentences," reports on how state courts in the Sunshine State are still struggling through the impact and implications of the Supreme Court's Eighth Amendment ruling limiting juve LWOP sentences for nonhomicide offenses. Here are the details:
A three-judge appellate panel on Tuesday asked the Florida Supreme Court to decide the constitutionality of a 70-year prison sentence for a teenager convicted of attempted first-degree murder in Jacksonville. The Florida 1st District Court of Appeal panel certified the issue to the justices as a question of great public importance.
Meanwhile, the state is appealing a decision by another 1st District panel that reversed a Pensacola inmate's 80-year sentence for a pair of armed robberies committed when he was 17.
They are among several cases arising from a U.S. Supreme Court ruling last year, also in a Florida case, that sentencing juveniles to life in prison for non-homicide crimes is unconstitutionally cruel and unusual punishment. The high court ruling came in the case of Terrance Graham, who was initially sentenced to life in prison. The sentence was then reduced to 25 years in prison....
The state is appealing a 1st District ruling in April that reversed Antonio Demetrius Floyd's 80-year sentence. A three-judge appellate panel ruled a sentence that long is the functional equivalent of life in prison. Floyd originally received a life sentence but it was reduced after the U.S. Supreme Court ruling.
Tuesday's certification came in the case of Shimeek Grindine, who was 14 when he shot a man during a 2009 robbery attempt. The appellate court previously affirmed Grindine's sentence in December on a 2-1 vote. The dissenting judge, James R. Wolf, wrote that he was at a loss on how to apply the U.S. Supreme Court's ruling in the case of Graham, also from Jacksonville, because the Legislature abolished parole in Florida.
"Is a 60-year sentence lawful, but a 70-year sentence not?" Wolf asked. "Regardless, it is clear to me that appellant will spend most of his life in prison. This result would appear to violate the spirit, if not the letter, of the Graham decision."
The Legislature this year considered but did not pass bills that would have addressed the issue. They would have let a judge reduce a sentence of 10 or more years for non-homicide crimes committed as a juvenile once an inmate was at least 25 years old.
Thursday, May 24, 2012
"Cruel and Unusual: U.S. Sentencing Practices in a Global Context"
The title of this post is the title of this notable new report released this week coming from the University of San Francisco School of Law's Center for Law and Global Justice. This press release provides a background and summary of this report, and here are excerpts from the press release:
Sentencing laws in the United States are at odds with the country’s human rights obligations to direct its prisons system towards rehabilitation, the University of San Francisco School of Law’s Center for Law and Global Justice said ... in a report examining the sentencing laws of all the countries around the world. U.S. laws increasing the likelihood and length of prison sentences have created a prisons system out of step with the rest of the world. They help to explain why, despite a declining crime rate, the U.S. prison population has grown six-fold since 1980 to become the world’s largest per capita.
The report, “Cruel and Unusual: U.S. Sentencing Practices in a Global Context,” compiles comparative research on sentencing laws around the globe and documents how sentencing laws distinguish the United States from other countries. Researchers found that the United States is in the minority of countries using several sentencing practices, such as life without parole, consecutive sentences, juvenile life without parole, juvenile transfer to adult courts, and successive prosecution of the same defendant by the state and federal government. Conversely, sentencing practices promulgated under international law and used around the world, such as setting 12 as the minimum age of criminal liability and retroactive application of sentencing laws that benefit offenders, are not systematically applied in the United States. Mandatory minimum sentences for crimes and “three strikes” laws are used in the U.S. more widely than elsewhere in the world....
Fact Sheet for “Cruel and Unusual: U.S. Sentencing Practices in a Global Context”
The United States is among only 20% of countries around the world having life without parole (LWOP) sentences. LWOP sentences can never be reviewed and condemn the convict to die in prison.
The United States allows for LWOP sentences for a single, non-violent offense such as drug possession, whereas it is often restricted to multiple, violent crimes in other countries.
The United States is one of only nine countries which have both the death penalty and LWOP, along with China, Comoros, Cuba, Israel, Kazakhstan, Lesotho, Nigeria, and Zimbabwe.
There are currently over 41,000 prisoners serving LWOP sentences in the United States, compared to 59 in Australia, 41 in England, and 37 in the Netherlands. On a per capita basis, the United States LWOP population is 51 times Australia’s, 173 times England’s, and 59 times the Netherlands’....
The United States, Canada, and Micronesia are the only federalist countries known to researchers allowing successive prosecution of the same defendant by federal and state governments for the same crime....
Under international human rights law, if legislators pass a new law to lighten sentences, offenders have a right to benefit from it retroactively. Though 67% of countries have codified that right, the United States has not....
The vast majority of countries (84%) account for the age of the offender at trial, leaving the United States in the minority of countries (16%) trying and sentencing children as adults.
The United States is the only country in the world to use juvenile life without parole (JLWOP) sentences, with an estimated 2,594 juveniles offenders serving such sentences.
Friday, May 11, 2012
Former president of Poland urges "Saying No to Costly Drug Laws"
Aleksander Kwasniewski, the president of Poland from 1995 to 2005, has this notable op-ed in the New York Times under the headline "Saying No to Costly Drug Laws." Here are excerpts:
In the year 2000, as the president of Poland, I signed one of Europe’s most conservative laws on drug possession. Any amount of illicit substances a person possessed meant they were eligible for up to three years in prison. Our hope was that this would help to liberate Poland, and especially its youths, from drugs that not only have a potential to ruin the lives of the people who abuse them but also have been propelling the spread of H.I.V. among people who inject them....
We assumed that giving the criminal justice system the power to arrest, prosecute and jail people caught with even minuscule amounts of drugs, including marijuana, would improve police effectiveness in bringing to justice persons responsible for supplying illicit drugs. We also expected that the prospect of being put behind bars would deter people from abusing illegal drugs, and thus dampen demand.
We were mistaken on both of our assumptions. Jail sentences for the possession of illicit drugs — in any amount and for any purpose — did not lead to the jailing of drug traffickers. Nor did it prove to be a deterrent to drug abuse.
What the law did do, however, was enable the police to increase their arrest numbers by hauling in droves of young people caught with small amounts of marijuana. More than a half of all arrests under the law were of people aged 24 and younger. Criminalization of drug users resulted in a dramatic increase in the number of identified cases of drug possession: from 2,815 in 2000 to 30,548 in 2008....
It is my hope that political and community leaders in other countries, especially in Eastern Europe, will learn from Poland’s experience in criminalizing drug possession, a move that clearly fell short of its goals. Such a policy failure should not be repeated anywhere else in the world.
For this reason, I decided to join the Global Commission on Drug Policy, an effort by former heads of state — including César Gaviria of Colombia, Fernando Henrique Cardoso of Brazil, Ruth Dreifuss of Switzerland and Ernesto Zedillo of Mexico — to advocate for reform of ineffective drug laws. I feel honored to have become the first former president of a country from Eastern Europe to join this body. I very much encourage political leaders from other regions of the world to sign on and show their support for policies that actually protect citizens.
The Global Commission offers a set of policy recommendations that should be the cornerstones of drug laws around the world. One of the main approaches that the commission supports is the decriminalization of drug use and possession of drugs for personal use....
Political leaders these days have ample evidence as to which approaches to drug policy actually help societies function better, and rigorous scientific investigation should always form the basis of policy making. Our role as politicians is to protect our communities and improve the functioning of our states. This may mean that we have to admit to having made mistakes. Fortunately now we know how to correct them.
Thursday, March 29, 2012
Japan gets back into death penalty business with three hangings
Recent political developments in Japan had led me and others to think that country might remove itself from the short list of developed nations still making regular use of the death penalty. However, this new Reuters story, headlined "Japan hangs 3 murderers in first executions since 2010," suggests that capital punishment is not yet dead in the Land of the Rising Sun. Here are the details:
Japan hanged three convicted multiple murderers on Thursday, the Justice Ministry said, its first executions in almost two years putting it back alongside the United States as the only leading developed nations to carry out the death penalty. Justice Minister Toshio Ogawa authorized the executions of the three men and they were hanged in jails in Tokyo, Hiroshima and Fukuoka, the ministry said.
They were the first executions in Japan since two death row inmates were hanged in July 2010. Those executions marked the first time capital sentences had been carried out since the Democratic Party of Japan took power in late 2009.
There are currently 132 inmates on death row in Japan, Kyodo news agency reported. They include 13 members of the doomsday cult that staged deadly gas attacks on the Tokyo subway in 1995.
Japanese media reported that one of the men executed on Thursday had killed five people at a train station in western Japan in 1999.
A government survey in 2009 showed that 86 percent of Japanese people supported the death penalty. Despite the delay between executions, there has been no formal moratorium on capital punishment.
Former justice minister Keiko Chiba, an opponent of the death penalty, authorized and attended the 2010 hangings and later allowed the media into the death chamber in an attempt to stir up public debate. Ogawa, who took office in a cabinet reshuffle in January, has said he would order executions of those on death row because the Japanese people supported capital punishment....
Japan and the United States are the only countries in the Group of Eight leading economies to carry out the death penalty. Both have been the target of strong criticism by Amnesty and other human rights groups.
Tuesday, March 13, 2012
"Soldier could face death penalty in Afghan killings, Panetta says"
The title of this post is the headline of this new CNN report, which highlights how the hottest issue of international relations is now also a sentencing story:
The U.S. Army soldier accused of killing 16 Afghan men, women and children in a house-to-house shooting rampage could face the death penalty, Defense Secretary Leon Panetta said. Panetta spoke to reporters as he flew to the Central Asian nation of Kyrgyzstan for high-level talks Tuesday....
An American sergeant is suspected of shooting nine children, three women and four men in two villages near his combat outpost in southern Afghanistan on Sunday. He turned himself in after the killings, the military said. The Army's Criminal Investigation Command is leading the investigation. The suspect has not been charged....
Leaders from across Afghanistan's fragmented political terrain have expressed anger and outrage over the attack in the district of Panjwai in Kandahar province. Karzai has condemned the weekend bloodshed as "unforgivable." Afghanistan's parliament has demanded a public trial for the suspect, and the Afghan Taliban have described U.S. troops as "sick-minded American savages" and vowed to exact revenge....
Sunday's killings have brought a deluge of high-level statements from Washington expressing shock, sadness and insistence that the U.S. mission in Afghanistan would stay on course....
The still-unidentified suspect in the attack served three tours of duty in Iraq before being deployed to Afghanistan, said Gen. John Allen, the U.S. and NATO commander in Afghanistan. A U.S. military official, who asked not to be named because he was talking about an ongoing investigation, said the suspect is an Army staff sergeant who arrived in Afghanistan in January.
During the suspect's last deployment, in 2010, he was riding in a vehicle that rolled over in a wreck, according to a senior Defense Department official, who also spoke on condition of anonymity. The sergeant was diagnosed with a traumatic brain injury after the wreck but was found fit for duty after treatment, the official said.
Saturday, March 03, 2012
China's popular reality show: "Interviews Before Execution"
This lengthy Daily Mail piece tells the remarkable story of a remarkable hit on Chinese television. The piece carries this lengthy headline: "The Execution Factor: It was designed as propaganda to deter would-be criminals. Instead interviews on death row have become China's new TV hit." Here are excerpts:
With her silk scarves and immaculate make-up, Ding Yu looks every inch the modern television presenter. Indeed, for the past five years she has hosted a hugely successful prime-time show in China which has a devoted following of 40 million viewers every Saturday night.
But while in Britain the weekend evening entertainment will be The X Factor or Strictly Come Dancing, Ms Ding’s show features harrowing -- some would say voyeuristic -- footage of prisoners confessing their crimes and begging forgiveness before being led away to their executions. The scenes are recorded sometimes minutes before the prisoners are put to death, or in other cases when only days of their life remain.
The glamorous Ms Ding conducts face-to-face interviews with the prisoners, who have often committed especially gruesome crimes. Her subjects sit in handcuffs and leg chains, guarded by warders. She warms up with anodyne questions about favourite films or music, but then hectors the prisoners about the violent details of their crimes and eventually wrings apologies out of them.
She promises to relay final messages to family members, who are usually not allowed to visit them on death row. The cameras keep rolling as the condemned say a farewell message and are led away to be killed by firing squad or lethal injection....
Officials in the ruling Communist Party regard the series as a propaganda tool to warn citizens of the consequences of crime. Inmates are selected for Ms Ding by judiciary officials who pick out what they consider suitable cases to ‘educate the public’. So far, the show’s makers claim, only five condemned prisoners who were asked have refused to be interviewed.
Convicted criminals in China can be put to death for 55 capital crimes, ranging from theft to crimes against the state. However, the show focuses exclusively on murder cases, conspicuously avoiding any crimes that might have political elements. The case that has drawn the largest number of viewers so far is that of Bao Rongting, an openly gay man who was condemned to death for murdering his mother and then violating her dead body....
The series has made a household name of Ms Ding, who is married and has a young son. She is often recognised in the street while doing her shopping with her family. Denying her show is exploitative, she said: ‘Some viewers might consider it cruel to ask a criminal to do an interview when they are about to be executed. On the contrary, they want to be heard. When I am face-to-face with them I feel sorry and regretful for them. But I don’t sympathise with them, for they should pay a heavy price for their wrongdoing. They deserve it.’...
Lu Peijin, the boss of TV Legal Channel in Henan province, said Ms Ding came up with the concept for the show and he agreed immediately, but that getting approval from officials was a long process. ‘I thought it was a great idea right away,’ said Mr Lu, who said that the stated aim of the show was not to entertain but to ‘inform and educate according to government policy. We want the audience to be warned,’ he said. ‘If they are warned, tragedies might be averted. That is good for society.’
I am intrigued and fascainated by the plausible suggestion that many condemned prisoners might want this kind of last chance to be heard. Also notable is the suggestion that educative and deterrence goals of the death penalty might be served by this kind of reality show. And, I cannot help but wonder if somewhere Nancy Grace is thinking about how she might develop a US version of this show.
Tuesday, February 14, 2012
Canadian judge resisting mandatory sentencing provisions
The Toronto Globe and Mail has this new article, headlined "In challenge to Ottawa, judge refuses to impose mandatory sentence" which provides a northern perspective on the classic concerns about federal judges forced to impose rigid mandatory sentencing terms. Here are excerpts from the piece:
An Ontario Superior Court judge has refused to impose a mandatory three-year sentence on a man caught with a loaded handgun, putting the courts on a collision course with the federal government’s belief in fixed sentences that provide judges with little discretion.
In a decision Monday, Madam Justice Anne Molloy added fuel to a rising sense of judicial anger over mandatory minimum sentences by striking down the compulsory term as cruel and unusual punishment. Instead, she sentenced the defendant, Leroy Smickle, to a year of house arrest. Judge Molloy concluded that Mr. Smickle, a 30-year-old Toronto man with no criminal record, had merely been showing off by striking a “cool” pose over the Internet when police happened to burst into an apartment on March 9, 2009, in search of another man.
The government has adamantly held to the view that mandatory minimums are a necessary restraint on judges who might impose inappropriately lenient sentences for certain offences. That is part of a larger tough-on-crime agenda that includes everything from harsher prison sentences to restricting parole and pardons.
Several months ago, in another major challenge in Ontario Superior Court, a similar sentencing provision was upheld in a firearms case, Regina v. Nur. That, combined with the Smickle ruling, could well result in a high-profile appeal that goes all the way to the Supreme Court of Canada.
Critics argue that a one-size-fits-all sentencing policy inevitably leads to unfair results. In her ruling Monday, Judge Molloy added her voice to those criticisms by saying there are an endless number of scenarios where a fixed sentence would be so cruel as to violate the Charter of Rights....
“In my opinion, a reasonable person knowing the circumstances of this case and the principles underlying both the Charter and the general sentencing provision of the Criminal Code, would consider a three-year sentence to be fundamentally unfair, outrageous, abhorrent and intolerable,” Judge Molloy said....
The judge noted that bad drafting was partially to blame for the legal straitjacket she found herself in. She took issue with a discrepancy in the firearms law, passed in 2008, which allows a judge to impose a more lenient sentence should the Crown choose to proceed summarily with a charge – an option that includes no jury and swifter resolution. She said that if the Crown instead proceeds by indictment, as it did in Mr. Smickle’s case, the minimum sentence automatically becomes three years.
The discrepancy created by the two sentence ranges is so “irrational and arbitrary” that it would shock the community were she to impose the mandatory sentence on Mr. Smickle, Judge Molloy said.
Friday, January 27, 2012
"Capital Punishment and Contingency"
The title of this post is the title of this interesting new piece by Professor Carol Steiker, which reviews David Garland's recent book on capital punishment titled "Peculiar Institution: America’s Death Penalty in an Age of Abolition." Here is a brief summary of the piece via SSRN:
This book review of David Garland’s “Peculiar Institution: America’s Death Penalty in an Age of Abolition,” assesses Garland’s contributions both to the literature about the American death penalty and to the broader debate about the nature and causes of American penal exceptionalism. Garland’s perspective is considered in light of the work of James Whitman, Franklin Zimring, Michael Tonry, Nicola Lacey, and William Stuntz. After situating Garland in the larger conversation, the review goes on to illustrate and deepen Garland account of the contingency of America’s recent death penalty story by imaging three counterfactual (and extremely divergent) American death penalty stories-that-might-have-been.
Saturday, January 07, 2012
Interesting global drug use data via new study in The Lancet
This New York Times article, which is headlined "Marijuana Use Most Rampant in Australia, Study Finds," reports on lots of interesting global illegal drug use data:
A study published Friday in a British medical journal may have finally uncovered the secret behind Australia’s laid-back lifestyle, and it turns out to be more than just sun and surf: The denizens Down Under, it turns out, consume more marijuana than any other people on the planet.
The study, an analysis of global trends in illegal drugs and their effect on public health published in The Lancet, a prestigious journal, found that Australia and neighboring New Zealand topped the lists globally for consumption of both marijuana and amphetamines, a category of drugs whose use the study found to be growing rapidly around the world.
The study’s co-authors, Professors Louisa Degenhardt of the University of New South Wales and Wayne Hall of the University of Queensland, reported that as much as 15 percent of the populations of Australia and New Zealand between the ages of 15 and 64 had used some form of marijuana in 2009, the latest year for which data were available.
The Americas, by comparison, clocked in at 7 percent, although North America batted above the neighborhood average with nearly 11 percent of its population partaking. Asia demonstrated the lowest global marijuana use patterns at no more than 2.5 percent, the study said, although difficulties in obtaining accurate data in less developed countries were cited as one possible reason for the low figures....
Stepping back for a global perspective, the study found that marijuana was the world’s most widely consumed illicit drug, with anywhere from 125 million to 203 million people partaking annually. Use of the drug far outstrips that of other illicit drugs globally, with 14 million to 56 million people estimated to use amphetamines, 14 million to 21 million estimated to use cocaine and 12 million to 21 million estimated to use opiates like heroin.
Still, despite marijuana’s significantly outpacing other illicit drugs in terms of the volume of use, the study found that it was the least likely of all illicit drugs to cause death. Additionally, barely 1 percent of deaths in Australia annually can be attributed to illegal drugs, the report said, compared with almost 12 percent from tobacco use.
This global study is actually part of a series of articles in The Lancet available at this link and set up with this executive summary:
A three-part Series assesses the global public-health toll and policy implications of drug addiction. The first paper summarises data for the prevalence and consequences of problem use of amphetamines, cannabis, cocaine, and opioids. In high-income countries, illicit drug use contributes less to the burden of disease than tobacco, but a substantial proportion of that burden is due to alcohol. Intelligent policy responses to drug problems need better prevalence data for different types of illicit drug use and the harms that their use causes globally. This need is especially urgent in high-income countries with substantial rates of illicit drug use and in low-income and middle-income countries close to illicit drug production areas. The second paper reviews existing drug policies and highlights the need for greater reliance on scientific evidence-based policy making. The final paper examines the value of international drug conventions in protecting public health.
Friday, January 06, 2012
"Criminal serving his sentence with monks pleads to be sent back to prison... because monastery life is too hard"
The title of this post is the headline of this amusing article from the UK, which was sent my way by a kind reader. Here is how the piece starts:
A convicted criminal who was serving out his sentence in a monastery has escaped for the second time and asked to be sent back to prison because life was too tough.
Thief David Catalano, 31, was sent to a Santa Maria degli Angeli community run by Capuchin monks in Sicily last November. But he found their austere lifetstyle too tough to handle and soon escaped. After a short while on the run he was caught by police and sent back.
On Monday he fled for the second time in six weeks, only to swiftly turn himself in at a police station and beg officers to send him back to jail in the nearby town of Nicosia. He told the stunned policemen: 'Prison is better than being at that hostel run by monks.'
A police spokesman said: 'Catalano arrived out of the blue and said there was no way he could stay on with the monks. He said it was too tough and he wanted to go back to prison, so we happily obliged and he is now back behind bars serving the rest of his sentence.'