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.
Recent related post:
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.
Recent related post:
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.