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.
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.