Friday, August 19, 2011
"Prison population hits record high in England and Wales"
The title of this post is the headline of this new report from The Guardian about the latest punishment realities across the pond. Here are some of the the details:
The prison population in England and Wales has hit a record high of 86,654 following the courts' decision to remand hundreds charged with rioting and looting in custody. The Ministry of Justice said the prison population had risen by 723 over the past week. Officials are making contingency plans to accelerate the opening of new prison buildings and bring mothballed accommodation back into use.
There are currently only 1,439 spare useable places left in the jail system, but prison chiefs say they remain confident they have enough to cope with those being imprisoned by the courts in relation to the recent riots. "We are developing contingencies to increase useable capacity should further pressure be placed on the prison estate," a Prison Service spokesperson said....
Geoff Dobson, the deputy director of the Prison Reform Trust, said the rapid increase in prison numbers meant that some parts of the system were "becoming human warehouses, doing little more than banging people up in overcrowded conditions, with regimes that are hard pressed to offer any employment or education. The likelihood is that for some first time offenders that will provide a fast-track to a criminal career."
His concerns were shared by Paul McDowell, the chief executive of Nacro, the crime reduction charity, and former governor of Brixton prison, who also warned that rehabilitation work to tackle reoffending would simply go by the board as jails tried to cope with the rapid rise in prisoner numbers.
Labour's prison spokesperson, Helen Goodman, said she was becoming increasingly concerned about the remaining capacity. "The violence that was seen on the streets of Britain last week must be punished, but the Tory-led government also have a responsibility to ensure that the sentences handed down are being served safely," she said.
Saturday, August 06, 2011
"How Many Medical Marijuana Patients Are Fakers? Does It Matter?"
The questions in the title of this post come from the headline of this interesting new piece over at Reason.com posted by Jacob Sullum. Here are excerpts:
A recent survey of 1,746 patients at nine medical marijuana evaluation clinics in California indicates that "the patient population has evolved from mostly HIV/AIDS and cancer patients to a significantly more diverse array." University of California at Santa Cruz sociologist Craig Reinarman and his colleagues, who report their results in the Journal of Psychoactive Studies, say "this trend toward increasing therapeutic uses is bringing marijuana back to the position it held in the U.S. Pharmacopeia prior to its prohibition in 1937."
Reinarman et al. found that "relief of pain, spasms, headache, and anxiety, as well as to improve sleep and relaxation, were the most common reasons patients cited for using medical marijuana." The top three reasons physicians gave for recommending marijuana were "back/spine/neck pain" (31 percent), "sleep disorders" (16 percent), and "anxiety/depression" (13 percent). Although those may sound like easy-to-fake symptoms, four-fifths of the patients reported trying other, doctor-prescribed medications (most commonly opioids) before marijuana. They could have been malingering then too, of course, and it may be easier to get a recommendation for marijuana than it is to get a prescription for Vicodin or Valium. But on the whole, it does not look like allowing the medical use of marijuana has fundamentally changed the nature of the doctor-patient relationship. Doctors do, after all, commonly prescribe psychoactive pharmaceuticals to treat not only pain but also sleep disorders, anxiety, and depression — all with the government's blessing. If some people find that marijuana works better for these purposes, there is no rational reason to prevent them from using it....
The authors are keenly aware of the widepread impression that a large portion of California's medical marijuana patients are using phony or exaggerated ailments as an excuse to get high. They note that it is hard to measure the extent of such "diversion" and that the phenomenon is not limited to marijuana. More fundamentally, they suggest that the distinction between medical and nonmedical use of drugs is becoming increasingly difficult to draw....
If you believe the government has no business drawing or policing this line, it is hard to get worked up about people who fake their way to a medical marijuana recommendation. But as I argued back in 1993, reformers could pay a price if all the talk about relieving the suffering of cancer and AIDS patients is perceived as a cover for recreational use. Politicians in other states commonly cite the California example as a reason to block medical use or restrict it to a short list of conditions. Then again, the perception that California's current law encourages dishonesty (much as the medical and religious exceptions to alcohol prohibition did) may strengthen support for outright legalization, which last fall attracted support from 46 percent of California voters.
UPDATE: This new item from the paper Haaretz in Israel provides an interesting international perspective on these issues. The piece is headlined "Israeli government approves guidelines for medical marijuana," and here are the specifics:
The Israeli government approved on Sunday arrangements and supervision regarding the supply of cannabis for medical and research purposes. A statement from Prime Minister Benjamin Netanyahu's media adviser said "the Health Ministry will -- in coordination with the Israel Police and the Israel Anti-Drug Authority -- oversee the foregoing and will also be responsible for supplies from imports and local cultivation."
Of approximately 6,000 Israelis currently being treated with medical cannabis (aka medical marijuana), most suffer from chronic pain and terminal illnesses. The therapeutic potential of cannabis has been known for many years and is recognized by the Health Ministry.
But many patients -- such as sexual assault victims suffering from post-traumatic stress disorder (PTSD), who have been recommended psychiatric treatment with medical cannabis -- encounter bureaucratic obstacles.
Friday, August 05, 2011
"As Britain debates the death penalty again, studies from America confirm that it works"
The title of this post is the headline of this notable new commentary from across the pond authored by Tim Stanley, a research fellow in American History at Royal Holloway College. Here are some excerpts from a provocative (and somewhat one-sided) piece:
Britain is talking seriously about the death penalty for the first time in over a decade.... We can expect anti-death penalty campaigners to point to America as an example of why it should stay banned. The usual images will be invoked of pot-bellied, racist, white judges sentencing innocent saints to death by chainsaw in some Alabama charnel house. Accepting the many obvious injustices in the US legal system, there is an instinctive British snobbery towards Americans that renders any comparison between our two countries unflattering. Amnesty International, Liberty and the New Statesman will probably ask, “Why would we endorse a system of retribution practiced by those knuckle-dragging, Bible bashing, toothless crazies over in Texas?” Well, here’s one good reason: it works.
From 2001 to 2007, 12 academic studies were carried out in the US that examined the impact of the death penalty on local crime rates. They explored the hypothesis that as the potential cost of an action increases, so people are deterred from doing it. Nine out of twelve of the studies concluded that the death penalty saves lives. Some of their findings are stunning. Professors at Emory University determined that each execution deters an average of 18 murders. Another Emory study found that speeding up executions strengthens deterrence: for every 2.75 years cut from an inmate’s stay on death row, one murder would be prevented. Illinois has just voted to stop executions across the state. According to a University of Houston study, that could be a fatal mistake. It discovered that an earlier Illinois moratorium in 2000 encouraged 150 additional homicides in four years.
Opponents will point out that the death penalty is practiced in the states with the highest murder rates. This is true, but it doesn’t mean that executions don’t work -- it just means that they take place where they are needed most. The states without the death penalty historically have lower than average levels of crime. When the death penalty was suspended nationwide from 1968 to 1976, murder rates went through the roof -- except in those states. When the ban was lifted, the states that reintroduced the death penalty saw an astonishing 38 per cent fall in their murder rate over twenty years....
There are many failings in the US justice system; the use of the death penalty can be symptomatic of them, but it is not a cause. For example, it is incredibly costly to execute a criminal.... But the reason for the decades criminals spend waiting for their execution is simple: money-hungry lawyers and sympathetic liberals keep on appealing their sentences. Another complaint is that the death penalty is biased toward black defendants. Tragically, this is true: 42 per cent of death row inmates are black. However, this reflects appalling indices of poverty, social dysfunction and racism. It is not necessarily a comment upon the appropriateness of the sentence. Many states have taken the decision that, on balance, justice should not be suspended altogether just because it is applied unevenly. That’s tough and needs addressing, but law and order trumps abstract notions of equality in the minds of most voters.
But for anyone who wallows in the superiority of the UK justice system, with its human rights legislation and touchy-feely approach to child murderers, it is worth bearing in mind that our rate of violent crime is actually far higher than that of the United States. According to a 2009 study, there were 2,034 offences per 100,000 people that year in the UK, putting Britain at the top of the international league table. America recorded just 466. The US seems to be getting something right: executing cold-blooded killers might be part of it.
Monday, August 01, 2011
Venezuela's notable response to prison overcrowding and violence
This new article from the Christian Science Monitor provides a notable international perspective on prison overcrowding problems and how they can be addressed. The piece is headlined "Venezuela promises to release thousands of prisoners: The new prisons minister, appointed in the wake of a deadly riot at El Rodeo prison outside Caracas, says that she will let 20,000 nonviolent criminals go." Here are excerpts:
Just a month after a deadly prison siege in El Rodeo prison outside Caracas, Venezuela in which some 30 people died, Venezuelan authorities have announced plans to release 40 percent of the country's prison population. Varela said that the release of some 20,000 prisoners would ease overcrowding, a major issue in jails across Venezuela and the entire region.
“Of the country's 50,000 prisoners, 20,000 should be out of jail," Ms. Varela told a local newspaper. The country's 30 prisons are designed to hold around 12,500 inmates. "In prison there are people that do not pose a danger to society, such as shoplifters who have no history of violence. They can be handled outside prison," she said.
But the new minister is likely to face criticism, even as overcrowding in jails is one of the issues for which Venezuelan President Hugo Chavez constantly gets panned. Venezuela is considered one of the region's most dangerous countries, with the murder rate in Caracas comparable to that of warzones such as Baghdad. While many prisoners may have gone into jail for minor crimes such as shoplifting, they will no doubt have been hardened by the “Dante-esque" conditions inside, according to Humberto Prado, who helps run the Venezuelan Prison Observatory.
Varela sought to dispel concerns of mass chaos. "I want to promise the Venezuelan people that we won't let the wolves loose," added Varela who was appointed by President Chavez last week....
Riots at El Rodeo jail, in Guatire just east of Caracas, left around 30 dead in a siege that lasted for 27 days. Thousands of troops attempted to regain control against inmates armed with AK47s, machine guns, and hand grenades. Family members waited outside a kilometer-wide perimeter for news of their loved ones, as shooting was heard from the complex.
Thursday, July 28, 2011
"Can Norwegian punishment fit the crime?"
The question in the title of this post is the headline of this notable piece in USA Today. Here are excerpts:
[I]n the days since the world learned that Breivik could face a maximum 21-year prison sentence for the killings there has been some criticism of the Norwegian justice.
Anti-Breivik Facebook groups have appeared such as Anders Behring Breivik Haters and Hang Anders Behring Breivik. One group asked members to vote on whether Norway should reintroduce capital punishment, abolished for civilian crimes in 1902 and banned completely in 1988 (after briefly being used on World War II Nazi collaborators). The Norwegian daily newspaper Aftenposten reported that 71,000 of 97,000 members replied no.
But some say Norway may be too easy on criminals even though its crime rates now are low compared with those in the United States. "Yes, there will be more momentum for those who opine that the Norwegian penalties are too lenient," said Helge Lurås, a terrorism expert at the Norwegian Institute of International Affairs.
Lurås said polls show 25% of Norwegians are in favor of the death penalty; among Progress Party members, who are conservative, the figure is 50%. But even the right wing in Norway is not prepared to look toward the U.S. system of life sentences without parole for murder. "My sense is that people tend to feel that the penitentiary system and the penalties are insufficiently punitive" in Norway, Lurås said. "But I think most Norwegians perceive the U.S. criminal system to be far too harsh."
Since Friday's twin terror attacks in Oslo and the nearby island of Utaya, there have been no street protests in this otherwise usually tolerant Nordic society. Police attorney Christian Hatlo says it is possible that Breivik might be charged for crimes against humanity and face a 30-year sentence. And if convicted, he could be held beyond his term's expiration if he is deemed to still be a danger to society, perhaps for life.
Many say Norway's justice system should reflect Norway's values. "Today, most of the people will say that no penalty is too strong for a mass murder," said Harald Stanghelle, political editor at Aftenposten, in a commentary Wednesday. "It's important then to be aware that we are a just society. He wanted to crush that just society, while we others want to preserve it."...
Norway has refused to deport foreigners if they could face the death penalty at home, as is the case with Mullah Krekar, founder of terrorist group Ansar al-Islam, who lives in Norway. "I think the American system is based on a value other than the norm in Norway," said Arne Brusgaard, 66, an independent consultant. "In the U.S., the focus is not just on freedom of movement, but also on making the punishment regime tough. As far as I can understand, there is too little focus on rehabilitation and reintroduction into society."
John Christian Elden, a criminal defense lawyer and partner at the law firm Elden, said Norway is being practical in not stacking accumulating sentences for each killing. "A penalty beyond 21 years would neither help society nor the criminal in moving on after release," he said. "It has not been considered to have any greater deterrent effect if one threatens with 21 or 30 or 50 years in prison in preventing someone from committing a crime."
Providing a fitting companion to this report from USA Today is this new op-ed in the New York Times, which is headlined "Justice? Vengeance? You Need Both." Here is how it begins:
Norway, a nation far removed from the wickedness of the world, is now facing one of its greatest moral challenges: What to do with Anders Behring Breivik, the man who has confessed to massacring 76 people, many of them children. Norway does not allow for capital punishment, and the longest prison sentence a killer can usually receive there is 21 years. A country of such otherwise good fortune and peaceful intention is now unprepared — legally and morally — to deal with such a monstrous atrocity.
The United States, unfortunately, is much more familiar with this problem. Americans have spent several recent weeks in a vengeful fury over the acquittal of Casey Anthony, who partied for an entire month while her 2-year-old daughter, Caylee, was supposedly missing but might have actually been murdered — by Ms. Anthony. Many believe that Caylee was denied justice; her mother, meanwhile, has been released from prison and remains hidden in an undisclosed location, largely to protect her from vigilante justice.
The inadequacy of legal justice is one thing, its outright failure is quite another. But in both cases the attraction of a nonlegal alternative is a powerful one. Are these vengeful feelings morally appropriate? The answer is yes — because the actual difference between vengeance and justice is not as great as people think.
Related recent post:
- Norway mass murderer facing no more than 21 years in (cushy?) prison
- "Norway killer could be held in 'luxury prison'"
Tuesday, July 26, 2011
"Norway killer could be held in 'luxury prison'"
The title of this post is the headline of this report from The (UK) Telegraph, which starts this way:
Anders Behring Breivik could be jailed in one of the world's most progressive prisons, where inmates enjoys cells equipped with flat screen televisions, minifridges and designer-style furniture. Halden Fengsel prison was opened last by King Harald V and is home to some of Norway's most hardened criminals, including murderers and rapists.
The jail is spread over 75 acres of woodland just outside Oslo and facilities include a sound studio, jogging trails and a two-bedroom house separate from the main facility where convicts can stay with their families during overnight visits.
Guards move around the prison unarmed and often play sports or eat meals with the men they are tasked with watching. Half of the prison staff are women, a policy based on research which shows a female presence induces a less aggressive atmosphere.
In a far cry from the brutalist set up of British or American prisons, there is even a "kitchen laboratory" where inmates can take specialist cooking courses.
Speaking at the opening of the jail last year, governor Are Hoidal said: "In the Norwegian prison system, there's a focus on human rights and respect. We want to build them up, give them confidence through education and work and have them leave as better people."
There is some evidence that the Norwegian approach to prison works, with only around 20 per cent of offenders ending up back behind bars within two years of release, compared to around half of British convicts.
Related recent post:
Sunday, July 24, 2011
Norway mass murderer facing no more than 21 years in (cushy?) prison
As detailed in this press report, which is headlined "Norway killing suspect may get 21 years in jail," it appears that the maximum sentence that could be given to the terrorist who murdered nearly 100 people in Norway is only 21 years in prison:
The person suspected of carrying out terrorist attacks in Norway will be charged for terrorist activity, while the maximum prison sentence in Norway is 21 years, Norway police said Saturday.
Over ninety people have been killed in the two attacks since Friday.
Police have confirmed that arrested 32-year-old Norwegian, Anders Behring Breivik, was involved both in the explosion in Oslo, and in a shooting at a youth summer camp on Utoya Island. Police did not link the tragedy to any international terrorist organisations but said the suspect was connected with right-wing extremism.
As detailed in prior posts linked below, Norway crime and punishment has previously been noted on this blog because of various press reports on its relatively cushy forms of incarceration. I do not know if Anders Behring Breivik would be eligible to serve his 21 years in one of these "cushy" Norway prisons, but I do know that a significant number of American criminals involved in relatively minor crack deals and child porn downloading and corporate crimes face much longer prison terms in the US than does a mass murderer in Norway. Remarkable.
Related prior posts on Norway's prisons:
- Norway's new prison sound far more pleasant than punishing
- "Hardened Criminals Held in Freedom: Doing Time on Norway's Island Prison"
- Does Norway's success with a "cushy prison" suggest we ought to get softer on criminals?
UPDATE: Anders Behring Breivik appeared in court this morning, and the details are report in this CBS News piece headlined "Judge: Massacre suspect wanted to 'save Norway'."
Sunday, June 26, 2011
Interesting sentencing news from China
Two reports on sentencing developments in China caught my eye this weekend:
Based on these stories, it now sound like sentencing law and policy in China is now quite a lot like in the old USA.
"Sex Offender Registration and Notification Laws at Home and Abroad: Is an International Megan’s Law Good Policy?"
The title of this post is the title of this new piece by Christopher King available via SSRN. Here is the abstract:
Comparative reviews of sex offender laws at the foreign level have been rare; discussions at the international level are nonexistent. This article seeks to address these needs in the following ways. First, federal, US sex offender laws are reviewed. Countries with sex offender registration and/or notification laws are then identified and their sex offender schemes compared (with a focus on registration, community notification, retroactive application, and/or international travel reporting). Next, the International Megan’s Law proposal that has recently been surfacing in Congress is discussed and critiqued. Finally, an alternative, more cost-effective proposal is offered.
Wednesday, June 08, 2011
Interesting sentencing doings and debates across the pond
As detailed in this effective piece from The Guardian, there are new and notable political and legal developments and debats concerning sentencing law and policy in England. The piece is headlined "Cameron shelves key parts of Clarke's prison sentencing reforms; Government to rethink justice secretary's plan to give offenders 50% reduction in jail terms in return for early guilty pleas." Here are excerpts:
David Cameron has ditched controversial plans to introduce a 50% sentencing discount for an early guilty plea after holding talks with the justice secretary, Kenneth Clarke, on Tuesday.
It has not yet been decided whether the change will apply to all cases or only the most serious. Downing Street denied Clarke had been summoned to a meeting by the prime minister or that he had in any way been ordered to carry out a U-turn.
The leak of the meeting has irritated Cameron, who is likely to be uneasy about suggestions that he is conducting a series of policy switches under pressure either from the rightwing media or his Liberal Democrat coalition colleagues.
Officials stressed that the sentencing discount had only been in a discussion paper and was not firm policy. But only at the weekend, justice ministers had been defending the plan, pointing out that it would save the government substantial sums....
The prime minister's spokesman stressed that proposals to cut the prison population by reducing the numbers on drugs offences, the number of foreign prisoners and the number of reoffenders, remained.
Clarke had originally postponed an announcement on his sentencing plans until after the Whitsun break. The home secretary, Theresa May, confirmed on Wednesday that this announcement had now been postponed again, and the publication of a sentencing and legal aid bill delayed for a matter of weeks.
Downing Street is also believed to have insisted that ministers look again at a plan to restore a judge's discretion in imposing indeterminate sentences for public protection, which have been a major factor behind the increase in the prison population in England and Wales.
Cameron is due to make a major speech on crime either later this week or early next, and preparations for that speech that are believed to have prompted the meeting with Clarke.
The sentencing package as a whole would save £130m by reducing demand for prison places. Work to establish the impact of excluding more serious offences, including rape and attempted murder from the discount plans, is believed to be ongoing. The problem for Clarke is that the discount plan is a major part of his drive to stabilise the record 85,000 prison population in England and Wales.
Justice ministry estimates show that 3,400 of the 6,000 fewer prison places that will be needed as a result of his sentencing package will come from the plan to increase the maximum available sentence discount from 33% to 50%. In practice, the MoJ estimates that the average actual discount in sentences for early guilty pleas would increase from 25% to 34%....
Clarke came under pressure from Downing Street last month to clarify his claims that some rapes were more "serious" than others amid Labour calls for his resignation. The justice secretary was later forced to make a public declaration that he regarded "all rape as a serious crime".... Clarke's plans have caused jitters among some Conservatives, who fear they undermine Tory claims to be the party of law and order.
Juliet Lyon, the director of the Prison Reform Trust, told the BBC Radio 4 Today programme that Clarke's plans presented a "coherent blueprint for reform" and should be allowed to go ahead.
Monday, May 30, 2011
"Chinese Court Orders Death Penalty for Food Safety Crimes"
The title of this post is the headline of this international news piece, which gets started this way:
China's top court issued a notice on Friday calling for the death penalty for food safety crimes that lead to fatalities. It comes amid widespread public anger over safety scandals in recent months.
Contaminated pork, toxic milk powder, dumplings containing aluminum, watermelons sprayed with dangerous chemicals, and other tainted foods have been reported recently — highlighting the Chinese regime's difficulty managing the country's poorly regulated food industry.
Friday, May 27, 2011
"China used prisoners in lucrative internet gaming work"
The title of this post is the headline of this recent report from the Guardian, which starts this way:
As a prisoner at the Jixi labour camp, Liu Dali would slog through tough days breaking rocks and digging trenches in the open cast coalmines of north-east China. By night, he would slay demons, battle goblins and cast spells.
Liu says he was one of scores of prisoners forced to play online games to build up credits that prison guards would then trade for real money. The 54-year-old, a former prison guard who was jailed for three years in 2004 for "illegally petitioning" the central government about corruption in his hometown, reckons the operation was even more lucrative than the physical labour that prisoners were also forced to do.
"Prison bosses made more money forcing inmates to play games than they do forcing people to do manual labour," Liu told the Guardian. "There were 300 prisoners forced to play games. We worked 12-hour shifts in the camp. I heard them say they could earn 5,000-6,000rmb [£470-570] a day. We didn't see any of the money. The computers were never turned off."
Memories from his detention at Jixi re-education-through-labour camp in Heilongjiang province from 2004 still haunt Liu. As well as backbreaking mining toil, he carved chopsticks and toothpicks out of planks of wood until his hands were raw and assembled car seat covers that the prison exported to South Korea and Japan. He was also made to memorise communist literature to pay off his debt to society.
But it was the forced online gaming that was the most surreal part of his imprisonment. The hard slog may have been virtual, but the punishment for falling behind was real. "If I couldn't complete my work quota, they would punish me physically. They would make me stand with my hands raised in the air and after I returned to my dormitory they would beat me with plastic pipes. We kept playing until we could barely see things," he said.
It is known as "gold farming", the practice of building up credits and online value through the monotonous repetition of basic tasks in online games such as World of Warcraft. The trade in virtual assets is very real, and outside the control of the games' makers. Millions of gamers around the world are prepared to pay real money for such online credits, which they can use to progress in the online games.
Especially because it is late Friday before a holiday weekend, readers are welcome (and even encouraged) to respond to this post with jokes about sentencing prisoners to play Angry Birds or about what kinds of required on-line activities might be deemed cruel and unusual punishment.
Wednesday, May 25, 2011
Supreme People's Court of China orders lower courts to suspend death sentences for two years
Changes in the law, policy and practice of the death penalty in China is now appearing to be even more dynamic than in the US these days. Specifically, as detailed in this new BBC piece headlined "China orders suspension of death sentences," the highest court in China is apparently ordering a big change in capital practices in lower courts. Here are the details:
China has apparently introduced new standards to reduce the number of criminals it executes. The Supreme People's Court -- the highest in China -- has told lower courts to suspend death sentences for two years. But this should only happen in cases where there is no need for "immediate execution", the court said.
China has introduced a number of measures over recent years to cut down the number of executions. This latest development appeared in the annual report of the supreme court. "Suspend the death sentence for two years for all cases that don't require immediate execution," read the report.
The court does not say why some cases might need to be carried out immediately, although in the past the government has instructed judges to be more severe in cases that involved crimes it was targeting. Those benefiting from the changes will probably never be executed. Criminals given a suspended death penalty usually have their sentences commuted to life imprisonment.
China does not reveal the number of executions it carries out each year, but it is thought to kill more people than any other country. Four years ago the Supreme People's Court took back the right to review every death sentence handed out by lower courts. The result has been fewer executions.
Earlier this year China reduced the number of crimes that carry the death penalty by 13 to 55. "Strictly control and unify standards relating to the death penalty, and ensure that it only applies to a very small minority of criminals committing extremely serious crimes," read one section of the supreme court's report.
Sunday, May 15, 2011
Iranian judiciary postpones planned "eye for eye" punishment
As detailed in this new Time piece, the "Iran's judiciary has postponed the blinding of a man as punishment for throwing acid in the face of a young woman in 2004, after she rejected his offer of marriage." Here is more on this proposed and now postponed form of retributive justice:
The delay came in the face of mounting outcry both inside Iran and in the West over the sentencing, which is permissible under qesas, a principle of Islamic law allowing victims analogous retribution for violent crimes.
The case has stirred passionate interest in Iran since 2004, when Majid Movahedi, a university student, accosted Ameneh Bahrami on a Tehran street and tossed a red bucket of sulfuric acid in her face. Bahrami, an attractive young engineer, had repeatedly spurned Movahedi's proposals and reported his harassment to the police. She was blinded and severely disfigured in the attack, and has spent the intervening years between Iran and Spain undergoing numerous unsuccessful operations to reconstruct her face and repair her sight.
Much of the public outcry in Iranian media, news websites, and blogs, surrounds the Iranian legal system, which produces such verdicts by practising an 'eye for an eye' approach to justice based on seventh century Islamic jurisprudence. These principles effectively offer victims of violent crime two legal choices, forgiveness or qesas, analogous retribution....
Speaking on the interactive television program Saturday, Bahrami said she favored a more modern course, suing for damages. "I want him to be punished foremost. But if there are human rights considerations, then I'll accept two million Euros and his life imprisonment," she said....
Bahrami, who was scheduled to herself administer the blinding drops to an anaesthetized Movahedi, learned of the delay outside the Judiciary Hospital in Tehran. Human rights groups and Western governments pleaded with Iranian authorities last week to call off the punishment. Iran's government usually responds to such foreign pressure by lashing out rather than backing off, but Bahrami's case poses a unique dilemma: unlike many human rights cases which excite opinion primarily in the West, it has resonated deeply throughout Iranian society; the attention inside Iran raises the prospect of a public backlash at a time when the regime is deeply divided by political infighting. "There's no doubt public opinion inside Iran has been stirred up," says Amini. "There's been a huge outpouring of sympathy for both of them, and this puts pressure on the government."
Monday, May 09, 2011
Does Norway's success with a "cushy prison" suggest we ought to get softer on criminals?
The question in the title of this post is inspired by this fascinating article a helpful reader sent me from the Daily Mail across the pond. The piece is titled "Norway's controversial 'cushy prison' experiment -- could it catch on in the UK?" and it carries this sub-heading: "Can a prison possibly justify treating its inmates with saunas, sunbeds and deckchairs if that prison has the lowest reoffending rate in Europe? Live reports from Norway on the penal system that runs contrary to all our instincts -- but achieves everything we could wish for." Here is one excerpt from an interesting read:
A recent opinion poll showed the British public wants harsher prison conditions; they don't agree with the Government's response to over-population and reoffending by pushing through far-reaching reforms which emphasise shorter sentences while placing prisoners in a working environment.
And yet, an extensive new study undertaken by researchers across all the Nordic countries reveals that the reoffending average across Europe is about 70-75 per cent. In Denmark, Sweden and Finland, the average is 30 per cent. In Norway it is 20 per cent. Thus Bastoy, at just 16 per cent, has the lowest reoffending rate in Europe.
Of course, Norway is one of the wealthiest, most sparsely populated and most stable countries in the world, with a population of just five million, and a prison population fluctuating around 3,500 inmates, the lowest percentage in Europe apart from Iceland; surely a special case.
Even so, whatever is happening here may be condemned, but cannot be ignored. Indeed, it is being positively embraced here - Norway is planning to build more prisons like Bastoy. At the expense of our own deep-seated unease, and with the possible benefits of safer streets, dare we ever contemplate such a prison regime in the UK?
Saturday, April 23, 2011
Noting the links between DP abolition and LWOP sentences
This recent commentary from The Guardian provides an effective and troublesome reminder of the too frequent link internationally between death penalty abolition and expansion of the sentence of life without parole. The piece is headlined "Falling execution rates don't always mean a victory for human rights; In countries where capital punishment has been banned the alternative can be inhumane life imprisonment without parole." Here are excerpts:
Amnesty International's recently published death penalty statistics hailed a "decade of progress". For opponents of capital punishment, this annual tradition of significant documented falls in executions is a victory -- of sorts. As Amnesty reported, of the 67 countries that handed down death sentences in 2010, only 23 actually carried out executions. These statistics, however, do not tell us this: what happened to the prisoners who escaped state execution in the remaining 44?
Very little attention is given to the sanctions that should replace capital punishment, or to what happens after it is abolished. Consider Uganda. A landmark legal challenge in 2009 abolished mandatory death sentences for certain crimes. But the Ugandan criminal justice system was unprepared for the change. Under pressure from politicians facing a backlash from a public highly supportive of capital punishment, and in the absence of any new sentencing guidelines, judges handed down draconian prison sentences instead -- including life without parole, previously nonexistent in Uganda.
The attraction of life without parole, now the commonest alternative to capital punishment, is understandable. It allows governments to claim they are protecting the public by permanently removing serious offenders from society. It appeases public outcry at the early release of dangerous convicts on parole. And it means abolitionists can show they are not soft on crime, while at the same time eliminating the danger of executing innocent people. But life without parole trades one severe punishment for another: execution is swapped for a protracted, hopeless death in unspeakable conditions. HIV rates in Ugandan prisons are more than double the rest of the population. In Malawi, where no one has been executed since 1992, prisons are vastly overcrowded and rife with infectious disease; prisoners are denied contact with families, and sexual and psychological abuse by inmates and guards is routine.
Across the world today, those lucky souls who escape death by hanging, beheading, electrocution, lethal injection, shooting or stoning live out their lives in conditions tantamount to a breach of international prohibitions of cruel and inhuman punishment, as an emerging jurisprudence recognises. Whole life imprisonment can also be a form of legal disappearance. In 2009, after Kenya's last elections, some 4,000 prisoners had their sentences commuted to life to without parole by President Kibaki. Some of those prisoners -- living in some of the world's most crowded and worst funded prisons -- have not been heard from since, by their lawyers or families. These are hardly arguments for retaining capital punishment. But if a sentence of 75 years, with hard labour and without review or hope of release -- the current alternative in Trinidad and Tobago -- is considered a "victory", it is surely time to rethink our indices of success....
Few headlines focus on the aftermath [of a commuted death sentence], and few international advocates jet in to ensure that those released from death row are not tortured in prison, contract tuberculosis or HIV, lose contact with their families or die in appalling squalor. Indeed, litigation can often cause unintended harm. In the United States, as Peter Hodgkinson of the Centre for Capital Punishment Studies (one of few organisations raising this issue) has pointed out, a government backlash against death-penalty litigation has directly or indirectly led to an increase in the number of capital crimes, and to severe restrictions in the appeal process.
Life without parole cannot be the alternative. Both the UN and Council of Europe guidelines on managing long-term prisoners recognise that very small numbers of convicted prisoners may have to stay in prison for their natural lives -- but only with regular reviews of their risk of reoffending....
The abolitionist campaign's goal should be a humane, proportionate and human rights-compliant response to perpetrators and victims of serious crime. It might require global guidance to standardise the huge, and often grossly disproportionate range of sentencing decisions. It will certainly require building and sustaining capacity among lawyers to challenge human rights abuses in prison, and training police and prison staff to cope in effective and positive ways with serious offenders. It will also mean recognising that the high proportion of mentally ill prisoners on death row might be better dealt with in clinical rather than punitive settings....
A falling execution rate is not the only measure of rising humanity. We cannot simply declare victory when capital punishment is removed from the statute book, or when fewer prisoners are executed. Moving to a humane penal response to serious crime, in societies in which the death penalty has flourished for centuries, cannot be done at a stroke. The entire abolitionist project is undermined if wholesale infrastructural change is not addressed. Too often, current alternatives to the death penalty raise the uncomfortable question: "what would you rather?" Those that do not are not easy -- but silence does no justice to our cause.
Wednesday, April 20, 2011
New report from Justice Policy Institute on comparative criminal justice strategies
As detailed here, the folks at the Justice Policy Institute have produced a really interesting new report on international criminal justice policies and practices. This new report, which is titled "Finding Direction: Expanding Criminal Justice Options by Considering Policies of Other Nations," appears expressly designed to encourage US criminal justice policy-makers to draw potential wisdom and guidance from what is being done in five particular other countries. Here is JPI's summary description of the report and its goals:
When it comes to criminal justice, there is much to be gleaned from the policies and practices in other democratic nations. Other nations protect public safety without imprisoning as large a percentage of their population, handle law-breaking behavior in ways less reliant on incarceration, and have different approaches to addressing complex social issues.
A country’s criminal justice policies and practices do not exist within a vacuum: they are a product of the larger social systems and political realities to which they are inextricably tied. For this reason, some policymakers may think other countries are too fundamentally different than the U.S. for these policies to be adopted.
This report compares and contrasts the criminal justice policies and social, economic, and governmental structures of five countries -- Australia, Canada, England and Wales, Finland and Germany -- to the United States. While each nation has a unique set of circumstances and realities, each has enough fundamental similarities to the U.S. that cross-national policy adoption could be considered. An evaluation of the various similarities and differences can broaden the existing dialogue and create more momentum for the types of systemic reforms that will reduce the burden of over-incarceration on communities, states, and the country as a whole.
The full report, an executive summary and a series of short issue-specific factsheets drawn from the report are all available at this link.
Monday, April 11, 2011
"Drug Policy in Context: Rhetoric and Practice in the United States and the United Kingdom"
The title of this post is the title of this notable new paper from Professot Richard Boldt now available via SSRN. Here is the abstract:
The history of narcotics use and drug control in the U.S. before passage of the Harrison Act in 1914 is similar in important respects to that in the U.K. during the same period. Although the two countries’ paths diverged significantly over the ensuing decades, there has been a convergence of sorts in recent years. In the United States, the trend lines have moved from an active “war on drugs” in which criminal enforcement and punishment have been the primary rhetorical and practical instruments of policy to an evolving approach, at least at the federal level, characterized by a somewhat more pragmatic tone and a more balanced set of interventions that mix enforcement, treatment and prevention. From the British side, the movement has been in the opposite direction, from a longstanding public health approach to an intensifying focus on criminal offending as the primary social risk posed by the misuse of drugs. Thus, just as the criminal justice system long has been the principle front in the U.S. assault on drug abuse, the shift in British drug policy has now made the criminal system in the U.K. a central focus in its efforts to combat the problem of drugs and drug addiction.
This pattern of convergence is likely to be incomplete. Even though actors in each country have been aware of developments in the other (and have even borrowed policy prescriptions from time to time), one critical difference in their parallel histories is likely to be determinative. The American move toward pragmatism, if it is to occur, must be executed against the inertial force generated by policy commitments and social practices of more than seventy-five years standing in which the most dominant feature has been an intense moral disapproval of drugs and those who use them. The British approach to drug policy, on the other hand, does not have to contend with this moral anchor, and therefore is likely to remain more pragmatic and therapeutic in orientation into the foreseeable future.
Tuesday, March 29, 2011
Lots of data and a cool graphic concerning international use of the death penalty
Amnesty International recently published death penalty information for all countries in the world, and the folks at The Guardian have assembled and summarized the information effectively in this piece. The piece includes the cool graphic spotlighted here, and this text:
Despite fewer countries executing prisoners than ever before, the death penalty is still alive and well around the world. The latest statistics show that China executes thousands, said Amnesty International in its report on the death penalty worldwide. Amnesty does not provide a precise figure of executions in China as Beijing keeps such figures secret.
China, together with Iran, North Korea, Yemen and the US carried out the most executions last year, the report says:
- Whilst 67 countries handed down sentences in 2010, only 23 countries actually carried out executions -- just over a third
- The number of official executions reported fell from at least 714 people in 2009 to at least 527 in 2010, excluding China.
- We have also seen fresh steps towards abolition in countries including Belarus and Mongolia...
Setting China aside, Amnesty said at least 527 executions were carried out last year. Almost half of those took place in Iran (252). North Korea executed 60, Yemen 53 and the US 46. The minimum number of executions was down from at least 714 in 2009.
Methods of execution included beheading, electrocution, hanging, lethal injection and various kinds of shooting (by firing squad, and at close range to the heart or the head). No stonings were recorded in 2010, but stoning sentences were reported in Nigeria, Pakistan and Iran, where at least 10 women and four men remain under stoning sentences. At least 2,024 new death sentences were imposed during 2010 in 67 countries, including 365 in Pakistan alone, meaning it has some 8,000 people currently on death row.
Wednesday, March 23, 2011
"Hardened Criminals Held in Freedom: Doing Time on Norway's Island Prison"
The title of this post is the headline of this interesting, lengthy piece from Germany's Spiegel Online. Here is how it gets started and a few notable passages:
No bars. No walls. No armed guards. The prison island of Bastøy in Norway is filled with some of the country's most hardened criminals. Yet it emphasizes self-control instead of the strictly regulated regimens common in most prisons. For some inmates, it is more than they can handle....
There is only one pistol on Bastøy -- a bronze sculpture in the warden's office. The warden, Arne Nilsen, is a slim man in his early sixties, a man who doesn't need a uniform to convey his authority. He doesn't know where the pistol came from. It's always been there.
The warden is a man who deals in freedom. He is also a visionary. He wants the men here to live as if they were living in a village, to grow potatoes and compost their garbage, and he wants the guards and the prisoners to respect each other. What he doesn't want is a camera in the supermarket. He doesn't want bars on the windows, or walls or locked doors.
The inmates on Bastøy have been convicted of crimes such as murder, robbery, drug dealing, fraud, violent crime and petty theft. "We don't pick out the mild cases," says Nilsen. Some inmates serve their entire sentences on the island. Murderers can only apply to be transferred to the island once they have served two-thirds of their sentences elsewhere. Some 115 prisoners live on Bastøy, and those who wish to stay are required to work and integrate into the community. Anyone caught drinking alcohol or fighting is thrown out....
This paradise has been around for 20 years -- and has a warden who loves statistics. The numbers, after all, prove him right. Only 16 percent of the prisoners in this island jail become repeat offenders in the first two years after leaving Bastøy as compared with 20 percent for Norway as a whole. In Germany, where recidivism is measured after three years, the rate is 50 percent.
The warden also feels vindicated because there has never been a murder or a suicide on the island -- and because no one left Bastøy last winter even though the sea ice was frozen solid.
Wednesday, February 09, 2011
"Iranian web programmer faces execution on porn charges"
The title of this post is the headline of this article from The Guardian, which provides a little comparative perspective concerning the severity of US sentences for child porn offenses. Here are the specifics:
A 35-year-old Iranian web programmer is facing imminent execution in connection with developing and promoting porn websites, charges that his family insist are trumped up.
Saeed Malekpour, a permanent resident of Canada who was arrested in October 2008 after his arrival in Tehran, is convicted of designing and moderating adult content websites, acting against the national security, insulting and desecrating the principles of Islam, and agitating the public mind.
Speaking from Toronto, Malekpour's wife, Fatemeh Eftekhari, said her husband has been informed of the verdict and has been transferred to solitary confinement for the sentence to be administered if the supreme court sanctions it. She says her husband was a web programmer who had written photo uploading software that was used in a porn website without his knowledge.
Human rights groups have expressed alarm over a sharp increase in the use of capital punishment in Iran. According to the International Campaign for Human Rights in Iran (ICHRI), 121 people have been hanged between 20 December 2010 and 31 January this year. An ICHRI report published in mid-January said that Iran has hanged an average of one person every eight hours since the beginning of the new year.
Last week prosecutor general Abbas Jafari Dolatabadi told reporters in Tehran that two people had been sentenced to death for running porn websites, without naming the convicts. "Two administrators of porn sites have been sentenced to death in two different court branches and the verdicts have been sent to the supreme court for confirmation," Dolatabadi was quoted by IRNA state news agency as saying....
Gloria Nafziger of Amnesty International in Canada, an organisation which has sought for Malekpour's sentence to be commuted said: "Amnesty International is very concerned that Saeed Malekpour is facing a death sentence in Iran after an unfair trial and reports that he was tortured in order to confess to his crimes."
Last month Iran executed Zahra Bahrami, a Dutch-Iranian woman convicted of drug smuggling, which resulted in a freeze of the Dutch diplomatic contacts with Iran.
Monday, January 17, 2011
Can you believe prisons now have tanning beds ... in Russia?!?!?!
There is this amusing new prison story, headlined "Notorious Russian prison to get tanning beds," coming from the AP out of Moscow. Here are the details:
A centuries-old Russian prison notorious for its primitive conditions will soon offer inmates a new perk — tanning beds....
[Viktor] was quoted as saying the tanning beds are meant to compensate for inadequate sunlight in the cells. But inmates will have to pay and at 10 rubles (33 cents) a minute, that's a sizable fee in a country where the average monthly salary is well under $1,000.
The prison's dismal conditions attracted wide attention in 2009 after the death of Sergei Magnitsky, a young lawyer who died of pancreas disease there after inadequate medical care.
Sunday, January 16, 2011
Real-life drama in China over crime and punishment of toll dodgers
As effectively explained in this BBC article, many fascinating aspects of China's criminal justice system is brought to light in an amazing and still developing story of massive toll evasion. Here are the details:
The younger brother of a Chinese man sentenced to life in prison for dodging road tolls has turned himself into police, state media reports. Shi Junfeng said he -- and not his elder brother - had put military number plates on the vehicles to evade tolls of 3.7m yuan (£350,000;$560,000).
The case caused an outcry in China, with many questioning the harsh sentence given to Shi Jianfeng. The court in Henan province had already ordered a retrial.
Shi Jianfeng had been found guilty last week of evading the fees over a nine-month period while delivering sand and gravel in two trucks. The court ruled he had used military number plates, meaning the vehicles could avoid paying road tolls. He was sentenced to life in prison, a fine of 2m yuan and the loss of his political rights. He also had his illegal earnings confiscated.
But last Friday, the court in Pingdingshan ordered a retrial of the case, ruling that other people may have been involved. Court official Liu Penghua said the convicted man had claimed he was "manipulated by a relative," the Xinhua news agency reported.
On Saturday night, Shi Junfeng turned himself in to police in Yuzhou City, saying his brother, a farmer, had taken the blame for him. It appears he had not thought his older brother would be sentenced so severely, telling police he had offered bribes to officials and had been assured he would be released quickly....
The case had generated a furious reaction online in China. Many argued that far more lenient sentences are usually given for more serious crimes. There were also complaints that road tolls, required on most major highways, are too high for ordinary people to be able to afford.
I find the notion that a Chinese driver could rack up over a half-million dollars in tolls over a nine-month period to be perhaps the most stunning part of this whole story. I often think tolls going from New Jersey into Manhattan are crazy high, but even the most expensive route is not more than $25 round trip. One would have to make that costly trip more than fifty times every day to have a toll bill anywhere comparable to what these Chinese brothers racked up.
Sunday, December 05, 2010
Japan also struggling with aging prison population
As detailed in this new AP article, which is headlined "Japanese prisons face swelling elderly population," Japan is dealing with a prison problem that is very common in many US states. Here is how the piece starts:
Handrails run down the middle of the hallway to help prisoners make their way from one end to the other. Adult diapers are neatly stacked in a corner. When an inmate chokes on his rice and coughs, a supervisor rushes over to rub his back.
Welcome to the world of old-age prisons. Japan's population is aging faster than anywhere else, and with that has come an even sharper rise in elderly inmates.
The number of Japanese prisoners aged 60 or older has doubled over the past decade to more than 10,000. That outpaces a 30 percent increase in the general population for that age group. The elderly now represent 16 percent of the nation's inmates.
Though Japan's crime rate remains relatively low, the spike in elderly crime is another sign of the social and economic strains on the once-confident country.
Friday, November 26, 2010
China's top court reversing 10% of death sentencing in recent years
This AFP piece provides an interesting report on recent developments in China's administration of the death penalty. Here are details:
China has overturned 10 percent of death sentences handed down in the country since the top court began reviewing them in 2007 in a bid to limit use of capital punishment, an official has said.
Most of the reversals were made due to insufficient evidence, procedural flaws, or because the penalty was too harsh, Hu Yunteng, head of research for the Supreme People's Court, was quoted saying by Friday's China Daily.
China is believed by rights groups to execute more people than the rest of the world combined, and it gave the top court final review powers in 2007 amid concerns some death sentences were unwarranted.
"We must make sure the use of the death sentence is accurate and free of mistakes to respect and protect the convicts and their rights," Hu said. "The Supreme People's Court will not tolerate any mistakes regarding evidence or procedure and will thoroughly investigate questionable judgements."
Hu said the supreme court had overturned "on average" 10 percent of death sentences, according to the report, which provided no further explanation. Most executions are carried out for violent crimes such as murder and robbery, the report said, but drug trafficking and some corruption cases also are punishable by death.
Hu declined to say how many people were executed each year, the report said. The figure is treated as a state secret in China.
In other international death penalty news, this article spotlights in its headline that "Sweden enjoys 100 years without executions."
Thursday, October 07, 2010
Learning from the French approach to white-collar crime and sentencing
Forbes blogger Walter Pavl has this amusing new post titled "What Jerome Kerviel’s Sentence Could Teach Us In America." Here is how it begins:
Jerome Kerviel, formerly of Societe Generale SA, was convicted this week in France of fraud and sentenced to 3 years in prison and ordered to pay nearly $7 billion. Had Kerviel been sentenced under the U.S. Federal Sentencing Guidelines he would have received about 100 years, but the fine would have been roughly about the same. The only job that he could get to pay back that kind of money would be, well, a trader on Wall Street. So I don’t see him paying this back anytime soon.
What was interesting about this case was that Societe Generale was the victim here and had no hand in its own undoing. The sentence and the restitution fell solely on Kerviel and did not implicate the bank in any way. I pondered this and thought, “Now there’s another good idea that the French have that we need to bring here to the States…A villain.”
What we’re missing here in the U.S. is a good villain. A Jerome Kerviel for our own banking collapse. Bank of America, AIG, GMAC, Lehman Brothers, Country Wide, et al, failed because of placing poor investment trades, similar to those placed by Societe Generale, or should I say Jerome Kerviel. Each of these U.S. financial institutions needs to give up one of their young for the sake of solving the mystery of “Who done it?” None of the CEO’s of major investment banks seem to know who was responsible within their own organizations for the bad trades, they just happened. Congress could not even drag a single name of a villain out of these guys when they were being grilled on Capitol Hill.
Tuesday, September 21, 2010
"Iran claims double standard in death penalty cases"The title of this post is the headline of this new AP article, which gets started this way:
Iranian President Mahmoud Ahmadinejad has criticized Western media for having a double standard in reporting on the case of an American woman facing the death penalty, a news agency reported Tuesday.
Ahmadinejad accused the West of launching a "heavy propaganda" campaign against the case of an Iranian woman who had been sentenced to be stoned to death for adultery but failing to react with outrage over the imminent execution of Teresa Lewis in Virginia, according to state-run IRNA. Iran
Lewis is a Virginia woman due to be put to death by injection on Thursday for using sex and money to persuade two men to kill her husband and her stepson to collect on life insurance policies. She would be the first woman executed in Virginia in nearly a century, and the first U.S. execution of a woman in five years.
Ahmadinejad noted that "millions of Internet pages" have been devoted to Sakineh Mohammadi Ashtiani, whose stoning sentence was suspended in July and her case put under review.
"Meanwhile, nobody objects to the case of an American woman who is going to be executed," he was quoted as saying during a speech Monday to Islamic clerics and other figures in New York, where the Iranian leader is attending the U.N. General Assembly. "Today Western media are propaganda agents who continuously speak about democracy and human rights though their slogans are sheer lies," he added.
Ahmadinejad's remarks were the latest in a series of statements by Iranian officials denouncing the wave of international condemnation of Ashtiani's case, which has cast a harsh light on Iran's version of Islamic justice. Press TV, the government's main English-language broadcast arm, also broadcast reports about the case with a photo of Lewis throughout the day.
In related news, I see from this Washington Post report that lawyers for Teresa Lewis sent this three-page letter dated Monday asking Virginia Gov. Robert F. McDonnellto reconsider his decision Friday not to intervene in the case.
Monday, September 13, 2010
"The Concept of Evil in American and German Criminal Punishment"The title of this post is the title of this very interesting new article by Joshua Kleinfeld appearing on SSRN. Here is the abstract:
The gap in harshness between American and German criminal punishment represents a moral disagreement between the two societies: American criminal punishment expresses a belief in the concept of human evil, while German criminal punishment denies that belief. This paper, after giving the concept of evil some philosophical definition, develops that thesis with six lines of argument.
First, contrasting American and German responses to major crime, the paper argues that American criminal law routinely banishes its worst criminal offenders, while German criminal law almost never does. Second, as to minor crime, American law treats misdemeanors as portents of worse things to come, while German law treats them as errors. Third, in the context of recidivism, America punishes the person, Germany the act. Fourth, with regard to community reintegration, American law approaches ex-cons with a concept this paper terms “residual criminality,” while German law adopts norms of full forgiveness. Fifth, as to capital punishment, America treats the right to life as alienable for wrongdoing; Germany treats that right as inalienable. And sixth – turning here from interpreting criminal doctrine and practice to analyzing the historical record – the paper shows that various players in the American criminal system have given voice to the belief in criminal evil, while major players in the German system have expressly denied that belief.
The paper concludes by asking which system is more just, arguing that German criminal law is naive for denying the existence of evil where it should be acknowledged, while American criminal law is reckless for rolling genuine evil together with mere error and failure and punishing them all alike.
Thursday, September 09, 2010
The potential echoes of California's pot proposition in MexicoThis new report, headlined "Weary of drug war, Mexico debates legalization," provides yet another interesting perspective on the debate over possible marijuana legalization in California. Here is how the piece starts:
A debate about legalizing marijuana and possibly other drugs — once a taboo suggestion — is percolating in Mexico, a nation exhausted by runaway violence and a deadly drug war.
The debate is only likely to grow more animated if Californians approve an initiative on Nov. 2 to legalize marijuana for recreational use in their state.
Mexicans are keeping a close eye on the vote, seeing it as a bellwether. "If they vote 'yes' to approve the full legalization of marijuana, I think it will have a radical impact in Mexico," said Jorge Hernandez Tinajero, a political scientist at the National Autonomous University.
Monday, August 23, 2010
Talk in China of economic crimes no longer being punishable by deathAccording to this new AP article, "China, which executes more people each year than any other country, said Monday it is considering dropping capital punishment for economic crimes." Here's more:
A draft amendment to the country's criminal code proposes cutting 13 "economy-related, non-violent offenses" from the list of 68 crimes punishable by the death penalty, the official Xinhua New Agency said.
It is not known when the draft will become law. Xinhua said it was submitted for a first reading to the Standing Committee of the National People's Congress. A draft usually has two or three readings before it is voted on.
Joshua Rosenzweig, research manager for the U.S.-based human rights group Dui Hua Foundation, said the draft was welcome but was unlikely to reduce the number of executions in China if it becomes law because it targets crimes that seldom, if ever, have the death penalty applied to them.
Sunday, August 22, 2010
Putting the punishment of stoning in some contextToday's New York Times has this very interesting piece about a notorious punishment, which is titled "Crime (Sex) and Punishment (Stoning)." Here are excerpts:
It may be the oldest form of execution in the world, and it is certainly among the most barbaric. In the West, death by stoning is so remote from experience that it is best known through Monty Python skits and lurid fiction like Shirley Jackson’s short story “The Lottery.”
Yet two recent real world cases have struck a nerve: a young couple were stoned to death last week in northern Afghanistan for trying to elope, in a grim sign of the Taliban’s resurgence. And last month, an international campaign rose up in defense of an Iranian woman, Sakineh Mohammadi Ashtiani, who had been sentenced to death by stoning on adultery charges.
Much of the outrage those cases generated — apart from the sheer anachronism of stoning in the 21st century — seems to stem from the gulf between sexual attitudes in the West and parts of the Islamic world, where some radical movements have turned to draconian punishments, and a vision of restoring a long-lost past, in their search for religious authenticity.
The stoning of adulterers was once aimed at preventing illegitimate births that might muddy the male tribal bloodlines of medieval Arabia. But it is now taking place in a world where more and more women demand reproductive freedoms, equal pay and equal status with men — in parts of the Islamic world as well as throughout the West....
The Taliban ... defined themselves in the 1990s largely through the imposition of an incredibly harsh and widely disputed version of Islamic law, under which stonings for adultery became common. Last week’s stoning, by hundreds of villagers in Kunduz Province, was a dire indicator of where Afghanistan may be headed.
“There is no way to say how many stonings took place, but it was widespread” when the Taliban ruled, said Nader Nadery, a senior commissioner on the Afghanistan Independent Human Rights Commission. “Often the man escaped, and the woman only was punished, especially if he had connections or was a member of the Taliban.” Other sexual crimes were accorded similarly grotesque penalties: homosexuals, for instance, had a brick wall collapsed onto them.
Stoning is not practiced only among Muslims, nor did it begin with Islam. Human rights groups say a young girl was stoned to death in 2007 in Iraqi Kurdistan’s Yazidi community, which practices an ancient Kurdish religion. The Old Testament includes an episode in which Moses arranges for a man who violated the Sabbath to be stoned, and stoning probably took place among Jewish communities in the ancient Near East. Rabbinic law, which was composed starting in the first century A.D., specifies stoning as the penalty for a variety of crimes, with elaborate instructions for how it should be carried out. But it is not clear to what extent it was used, if ever, said Barry Wimpfheimer, an assistant professor of religion at Northwestern University and an expert on Jewish law.
Some Muslims complain that stoning — along with other traditional penalties like whipping and the amputation of hands — is too often sensationalized in the West to smear the reputation of Islam generally. Most of these severe punishments are carried out by the Taliban and other radicals who, many Islamic scholars say, have little real knowledge of Islamic law. Stoning is a legal punishment in only a handful of Muslim countries — in addition to Iran, they include Saudi Arabia, Somalia, Sudan, Pakistan and Nigeria, but it is very rarely put to use.
Stoning is not prescribed by the Koran. The punishment is rooted in Islamic legal traditions, known as hadiths, that designate it as the penalty for adultery. While the penalty may seem savage to Western eyes, scholars say it is consistent with the values of Arabian society at the time of Muhammad, Islam’s founding prophet.
Adultery “was considered to offend some of the fundamental purposes of Islamic law: to protect lineage, family, honor and property,” said Kristen Stilt, an associate professor at Northwestern University who has written about Islamic law. “It was a tribal society, and knowing who children belonged to was very important.”
That may help explain the link between sexual crimes and stoning, as opposed to another form of execution. A crime that seemed to violate the community’s identity called for a communal response. Certainly the special horror of stoning is rooted in the prospect of being pelted to death by one’s own friends, neighbors and relatives.
But Islamic law requires very strict conditions for a stoning sentence: four male eyewitnesses must attest to having seen the sexual act and their accounts must match in all details, or else they can be subject to criminal penalties, said Aron Zysow, a specialist on Islamic law at Princeton University. Some scholars even argue that the stoning penalty is meant more as a symbolic warning against misbehavior than as a punishment to be taken literally.
Thursday, July 29, 2010
Interesting chart of world-wide execution numbers for 2009The Economist has this interesting chart which spotlights various nations' execution numbers for 2009. The chart comes from this little article, which is headlined "China and the death penalty: High executioners." Here is the text that accompanies the graphic:
China executes more of its own citizens than any other country, and more than all others in the world combined. “Thousands” of Chinese were executed in 2009 according to Amnesty International's annual study, which states that an exact number is impossible to determine because information on the death penalty is regarded as a state secret. But this gruesome record may yet change. The National People's Congress is reported to be reducing the number of offences that are punishable by execution. Among the crimes that currently carry the death penalty are bribing an official and stealing historical relics.
Of course, this chart showing China ahead of all other nations reflects total number of executions. If one were to focus on per capital execution rates, I believe Iran and Saudi Arabia get to brag about beating China on this metric. In addition, I think if Texas were considered separate from the rest of the United States, it would rank pretty high on a list of per capital execution rates, while the rest of the United States would be ranked quite low on this metric.
As is true for most discussions and debates over crime and punishment, we are wise to recall the phrase made popular by Mark Twain: "lies, damned lies, and statistics."
Wednesday, July 28, 2010
"Japan hangs two, announces review of death penalty"The title of this post is the headline of this notable press report on death penalty developments in the land of the rising sun. Here are the detais:
Japan's justice minister, a foe of capital punishment, announced a review of the death penalty Wednesday after witnessing the first executions since her centre-left government took power last year.
The two male convicts hanged were Kazuo Shinozawa, 59, who killed six people by setting fire to a jewellery store, and Hidenori Ogata, 33, convicted of killing a man and a woman and seriously injuring two others.
Keiko Chiba, the first justice minister to personally watch a government execution, carried out at the Tokyo Detention House, afterwards told media she wanted a ministry study group to review the practice. "I confirmed the executions with my own eyes," said Chiba. "It made me again think deeply about the death penalty, and I once again strongly felt that there is a need for a fundamental discussion about the death penalty."
She also said she would open up death chambers to the media for the first time -- though not on execution dates -- to expose to public scrutiny the mechanics of a process that has long been shrouded in secrecy....
More than 85 percent of the public support the death penalty, according to a Cabinet survey carried out in February. Japan has often been criticised internationally for its use of the death penalty, and the fact that death row prisoners and their families are not told about the execution date in advance.
The country last executed prisoners exactly a year earlier, when the conservative Liberal Democratic Party still ruled the country, putting to death three inmates including one Chinese national, also for multiple murder.
When the centre-left Democratic Party of Japan took power last September, ending more than half a century of conservative rule, it said it favoured public discussion on the death penalty. The new government also sent a signal by appointing Chiba -- then a member of the Japan Parliamentary League against the Death Penalty -- as justice minister, while largely avoiding open debate on the issue....
The latest hangings left 107 people on death row in Japan.
Friday, July 23, 2010
"Rough justice: America locks up too many people, some for acts that should not even be criminal"
The title of this post is the headline of this new commentary in The Economist. Here is how it gets started:
In 2000 four Americans were charged with importing lobster tails in plastic bags rather than cardboard boxes, in violation of a Honduran regulation that Honduras no longer enforces. They had fallen foul of the Lacey Act, which bars Americans from breaking foreign rules when hunting or fishing. The original intent was to prevent Americans from, say, poaching elephants in Kenya. But it has been interpreted to mean that they must abide by every footling wildlife regulation on Earth. The lobstermen had no idea they were breaking the law. Yet three of them got eight years apiece. Two are still in jail.
America is different from the rest of the world in lots of ways, many of them good. One of the bad ones is its willingness to lock up its citizens (see our briefing). One American adult in 100 festers behind bars (with the rate rising to one in nine for young black men). Its imprisoned population, at 2.3m, exceeds that of 15 of its states. No other rich country is nearly as punitive as the Land of the Free. The rate of incarceration is a fifth of America’s level in Britain, a ninth in Germany and a twelfth in Japan.
The linked briefing is also a must-read, and it is headlined "Too many laws, too many prisoners: Never in the civilised world have so many been locked up for so little."
Friday, June 11, 2010
"Sentencing and Comparative Theory"The title of this post is the title of this notable new piece of scholarship from Professor Richard Frase available via SSRN. Here is the abstract:
Mirjan Damaska and other comparative criminal justice theorists have given very little attention to how comparative law models and theories might apply to sentencing. Although numerous scholars have studied the differences in sentencing alternatives and overall punishment severity across national boundaries, almost none have linked these differences to the models and theories used to describe, explain, and predict changes in criminal pretrial and guilt-determination procedures.
In the United States there have been significant recent changes in sentencing goals and procedures, in particular: 1) retributive and public safety goals have been given increased emphasis, while rehabilitation has been de-emphasized; 2) many U.S. jurisdictions now use some form of sentencing guidelines; 3) almost all jurisdictions apply mandatory or mandatory-minimum sentences to certain offenders; 4) the U.S. Supreme Court has held that certain facts permitting sentence-enhancement may no longer be informally determined by the trial judge at the sentencing hearing, but must be submitted to the jury and proven beyond a reasonable doubt; and 5) overall sentencing severity (as measured, for example, by prison populations relative to resident population and relative to criminal caseloads) has risen substantially in almost all U.S. jurisdictions. Do comparative law models help to explain any of these changes? This essay considers whether Damaska’s theories, some variation on his theories, or alternative comparative law theories might help to explain cross-national variations (as well as within-nation variations, across states and other jurisdictions) in sentencing goals, procedures, alternatives, and outcomes.
Thursday, June 10, 2010
Notable Canadian ruling on extreme prison confinement
A helpful reader from north of the border sent me this note about a notable and high-profile (and very lengthy) ruling about prisoners' constitutional rights in Canada:
I thought you may wish to write about this significant decision from a Canadian trial court about the meaning of cruel and unusual punishment in Canadian law. Your blog emphasizes American developments, but this case has an American emphasis as it relies upon expert opinion evidence provided by Craig Haney, and there is discussion as to the importation of American ‘supermax’ style imprisonment. The case is quite long [and can be found here]:
Media coverage can be found here. The media coverage is, of course, a bit sensational. From a prison lawyer perspective, the critical parts of the decision are at paragraphs 318–335 which indicate a new standard for interpreting long-term administrative segregation as constitutionally impermissible; as contrary to legitimate penological objectives.
Thursday, June 03, 2010
Debate across the pond on sentencing and sentencing guidelines
A helpful reader sent me this interesting story from The Times, which is headlined "Sentencing Council: judges told that justice is safe from ‘tramline’ sentencing." The piece is intrguing not only because it details the recent history of sentencing reform efforts in the UK, but also because it echoes the recent history and debate over US federal sentencing law and policy. Here is how the piece begins:
It must be the toughest judicial brief going: tasked with overseeing sentencing in England and Wales, when prisons are full to bursting and there is no money to build any more. But Lord Justice Leveson is firm about one thing: “I have not considered this as a brief to produce guidelines that are going to reduce the prison population.”
Leveson, 60, a senior Court of Appeal judge, took on the role in April of chairing the new Sentencing Council. It has a far-reaching remit to issue guidelines and monitor the impact and cost of sentencing changes. But he insists: “There is nothing in the legislation that requires us to have regard to resources — although ... we must spell out the resource implications of changes in sentencing practice, of new guidelines or legislation. But we will still do what we think is right.”
The council of eight judges and six lay members will have a key input into government penal policy. Ironically, the original plan was quite the opposite: politicians hoped to secure some control over judges’ sentencing practice.
It was concern about rising prison numbers that prompted ministers to set up an inquiry into how they could secure a better match of supply and demand in the prison system. The report, from Lord Carter of Coles, led to a working group under Lord Justice Gage being asked to examine the American “grid” model — a tick-box approach that would have tightly fettered judicial discretion. The idea was firmly rejected.
Instead, the Sentencing Council was proposed, to replace the old Sentencing Guidelines Council and Sentencing Advisory Panel. But the change is not just one of name and streamlining. For a start, judges “must follow” the sentencing guidelines, not just “take account of” as before.
Judges bristled. How can this be squared with their independence and freedom to tailor sentences to the crime? Leveson insists that it can; and that judges are now sanguine about the change. “Guidelines are not tramlines. The Coroners and Justice Act 2009 gives judges the freedom not to follow the guidelines where that is not in the interests of justice.”
What, then, will the new council achieve? “I want to see a consistent approach to sentences — from Bristol to Birmingham, Bolton to Basildon. I want people to feel confident with the courts system by providing clear information on how people are sentenced.”
Judges do not always make clear that the guideline is the default starting point, he says. That needed spelling out; and better reporting of the reasons for a sentence by the media. To this end, he plans to gather data in the shape of feedback from judges. A pilot scheme has started in four Crown Court centres. The task is huge — the council has economists and statisticians but the prize, in terms of future targeting of resources, “could be substantial”.
I think I may have to make "guidelines are not tramlines" my new sentencing reform mantra.
Monday, May 17, 2010
"The Death Penalty for Drug Offences: Global Overview 2010"The title of this post is the title of this interesting new report coming today from the International Harm Reduction Association. Here is how this report is summarized via the IHRA website:
The International Harm Reduction Association released a study on the death penalty for drug offences today on the opening day of the 19th session of the UN Commission on Crime Prevention and Criminal Justice, taking place in Vienna. The report, titled ‘The Death Penalty for Drug Offences: Global Overview 2010’, finds that hundreds of people are executed for drug offences each year around the world, a figure that very likely exceeds one thousand when taking into account those countries that keep their death penalty statistics secret.
The report is the first detailed country by country overview of the death penalty for drugs, monitoring both national legislation and state practice of enforcement. Of the states worldwide that retain the death penalty, 32 jurisdictions maintain laws that prescribe the death penalty for drug offences. The study also found that in some states, drug offenders make up a significant portion –- if not the outright majority –- of those sentenced to death and/or executed each year.
Tuesday, May 04, 2010
Norway's new prison sound far more pleasant than punishingAs detailed in this new Time magazine piece, which is headlined "Norway Builds the World's Most Humane Prison," the folks in the Land of the Midnight Sun have a different vision of incarceration than do folks in the Land of the Free. Here are the details:
Ten years and 1.5 billion Norwegian kroner ($252 million) in the making, Halden is spread over 75 acres (30 hectares) of gently sloping forest in southeastern Norway. The facility boasts amenities like a sound studio, jogging trails and a freestanding two-bedroom house where inmates can host their families during overnight visits. Unlike many American prisons, the air isn't tinged with the smell of sweat and urine. Instead, the scent of orange sorbet emanates from the "kitchen laboratory" where inmates take cooking courses. "In the Norwegian prison system, there's a focus on human rights and respect," says Are Hoidal, the prison's governor. "We don't see any of this as unusual."
Halden, Norway's second largest prison, with a capacity of 252 inmates, opened on April 8. It embodies the guiding principles of the country's penal system: that repressive prisons do not work and that treating prisoners humanely boosts their chances of reintegrating into society. "When they arrive, many of them are in bad shape," Hoidal says, noting that Halden houses drug dealers, murderers and rapists, among others. "We want to build them up, give them confidence through education and work and have them leave as better people."
Countries track recidivism rates differently, but even an imperfect comparison suggests the Norwegian model works. Within two years of their release, 20% of Norway's prisoners end up back in jail. In the U.K. and the U.S., the figure hovers between 50% and 60%. Of course, a low level of criminality gives Norway a massive advantage. Its prison roll lists a mere 3,300, or 69 per 100,000 people, compared with 2.3 million in the U.S., or 753 per 100,000 — the highest rate in the world.
Design plays a key role in Halden's rehabilitation efforts. "The most important thing is that the prison looks as much like the outside world as possible," says Hans Henrik Hoilund, one of the prison's architects. To avoid an institutional feel, exteriors are not concrete but made of bricks, galvanized steel and larch; the buildings seem to have grown organically from the woodlands. And while there is one obvious symbol of incarceration — a 20-ft. (6 m) concrete security wall along the prison's perimeter — trees obscure it, and its top has been rounded off, Hoilund says, "so it isn't too hostile."
The cells rival well-appointed college dorm rooms, with their flat-screen TVs and minifridges. Designers chose long vertical windows for the rooms because they let in more sunlight. There are no bars. Every 10 to 12 cells share a living room and kitchen. With their stainless-steel countertops, wraparound sofas and birch-colored coffee tables, they resemble Ikea showrooms.
Halden's greatest asset, though, may be the strong relationship between staff and inmates. Prison guards don't carry guns — that creates unnecessary intimidation and social distance — and they routinely eat meals and play sports with the inmates. "Many of the prisoners come from bad homes, so we wanted to create a sense of family," says architect Per Hojgaard Nielsen. Half the guards are women — Hoidal believes this decreases aggression — and prisoners receive questionnaires asking how their experience in prison can be improved.
There's plenty of enthusiasm for transforming lives. "None of us were forced to work here. We chose to," says Charlott-Renee Sandvik Clasen, a music teacher in the prison and a member of Halden's security-guard chorus. "Our goal is to give all the prisoners — we call them our pupils — a meaningful life inside these walls." It's warmth like that, not the expensive television sets, that will likely have the most lasting impact.
Tuesday, April 06, 2010
New UK sentencing structure attacked for giving judges too much discretionThe title of this new piece in The Guardian caught my eye because I thought the federal sentencing system was being discussed under the headline "Judges given free rein by 'pitifully loose' sentencing law." But, as this excerpt shows, the article concerns new UK sentencing law:
New legislation guiding judges on sentencing criminals is so "pitifully loose" that judgments could become idiosyncratic and inconsistent, according to the head of the Sentencing Advisory Panel. Professor Andrew Ashworth struck out at the government on the eve of the panel's replacement today by a new body, the Sentencing Council.
In an interview with the Guardian, Ashworth called the new council "defective". He said the legislation dictating its powers and responsibilities "dilutes and even trivialises the proper approach" to the rule of English law. Ashworth, the Vinerian professor of English law at the University of Oxford, accused the government of "changing course in response to judicial opposition to the creation of the new council".
He said the government has given judges a virtually free rein in deciding what sentence to hand down. "It's not democratic. It is about retaining the confidence of the judiciary, who were concerned that the new council would threaten what they consider to be their independence, at the cost of reducing the effectiveness of the guidelines," he said.
"The whole idea of guidelines has been undermined. The purpose of guidelines is to steer judges along particular channels but the new legislation is destructive because it hardly binds judges at all. It is possible that the new legislation will lead to the sort of idiosyncratic sentencing that used to cause people such worry. It depends on how tightly the court of appeal polices things, but under the new statute as we now have it, that is a possibility."
Friday, April 02, 2010
Notable report on debate over capital punishment in South KoreaI always find interesting the attitudes and practices of Asian countries concerning the death penalty, which is why this new article from South Korea caught my eye. The piece is headlined "Recent murder case sparks death penalty debate in South Korea," and here are excerpts:
A recent rape and murder case in South Korea has sparked debate over the death penalty, with many South Koreans calling for capital punishment against the culprit. The rape and murder of a teenage girl in South Korea has shocked the country. The body of the 13-year-old victim was found in a water tank near her home.
The suspect -- Kim Kil-tae -- was captured earlier this month in the southern port city of Busan. He is believed to have spent 11 years behind bars for two previous rapes.
Reacting to the case, many South Koreans want the death penalty to be enforced, to deter similar crimes. A recent survey carried out in South Korea showed that more than 80 per cent supported capital punishment. The consensus is that the punishment should match the severity of the crime, and capital punishment also serves as a deterrence.
Of the 3,049 adults surveyed, 83.1 per cent said they supported the death penalty, and only 11.1 per cent were opposed to it....
Opinions among government officials and politicians were more divided. South Korea's National Assembly Speaker Kim Hyung-o said the state could not take away a human life, while Justice Minister Lee Kwi-nam recently hinted at support for the death penalty, by suggesting the government build a facility to execute death row prisoners.
The last time South Korea carried out the death penalty was in 1997, when 23 people were executed by hanging. Currently, there are 59 convicts on death row.
Tuesday, March 23, 2010
"Russia to Alter System of Penal Colonies"
The title of this post is the headline of this fascinating piece from this morning's New York Times. Here is how it starts:
In Russian prisons, the inmates are divided into barracks housing a hundred or so men without regard to the severity of their crimes. At night, a guard locks the door and walks away, leaving first-time offenders and people convicted of nonviolent crimes to fend for themselves in a crowd of gang members, hit men and other career criminals.
Beginning this year, however, first-time offenders may no longer have to live in fear. In the first major effort to upgrade a prison system that has changed little since Stalin established it more than 70 years ago, career criminals will be separated from the general prison population and housed in new prisons with cellblocks, rather than barracks.
President Dmitri A. Medvedev, a lawyer by training who has championed an overhaul of the justice system, is pushing the measure to first break up the culture of barracks life and then to do away with common inmate housing almost entirely.
Common barracks are unusual outside the former Soviet Union and parts of Africa, according to a London-based advocacy group, Penal Reform International. Western European and American correctional institutions typically rely on large cellblocks, with a few inmates to a cell.
Yet the vast majority of Russian prisoners — 724,000 out of a total prison population of 862,000 — still live in freestanding barracks, rough-hewn, low-slung buildings of wood or brick encircled by barbed wire, usually in a remote place. Low-cost and high-volume, they are modest upgrades of the camps of the 1930s to 1950s and hold the second largest per capita inmate population in the world, trailing only the United States.
The overhaul calls for a three-stage unwinding of the barracks housing system and the abolition of all 755 penal colonies, what remains of Stalin’s gulag, by 2020. Under the plan, some sites will be renamed “settlement colonies,” a sort of minimum security prison. Hardened prisoners will be moved to cellblocks, though only just over 2,700 inmates live in cells in Russia today.
In the first stage, recidivists will be put in separate colonies apart from the general prison population. So far, officials have relocated 64,000 of 149,000 prisoners scheduled for transfer. By 2016, prison officials say, they intend to separate the most violent first-time offenders from petty criminals, and by 2020 move them and the recidivists into new prisons with cellblocks. After that, the category of “correctional colony” would cease to exist in the Russian penal system.
I will try not to forget the enduring campaign themes of hope and change while reflecting on the fact that Russian President Medvedev appears to be much more interested in prison reform than US President Obama. Of course, decades ago when the US prison population was much smaller than Russia's, perhaps this reality would not be so remarkable or telling. But the United States, a nation that Abraham Lincoln famously described as being "conceived in liberty," is now the world's leader in imprisoning its own population by a considerable margin. Consequently, it is hard not to be sad and disappointed that more prison change is being right now pioneered by Russia's president than by America's.
Friday, February 26, 2010
South Korea's highest court upholds death penaltyAs detailed in this report, which is headlined "Constitutional Court Upholds Death Penalty," there is more going on these days in South Korea than just obsession over an Olympics superstar. Here are the details:
The Constitutional Court, on Thursday once again upheld the death penalty by a 5 : 4 majority. The court last declared capital punishment constitutional in a ruling in November 1996. The court had been asked by a 72-year-old fisherman who was sentenced to death for murdering four tourists to decide whether capital punishment is constitutional.
In the ruling, the court said capital punishment is among penalties within the purview of Article 110, Clause 4 of the Constitution. "Capital punishment does not contradict the constitutional guarantee of the right to life or infringe the constitutional guarantee of human dignity," it said.
"Capital punishment is penalty with the public goal of realizing justice through just retribution against atrocious crimes and protecting society by preventing crimes," the court said. "As a kind of necessary evil, it is still functioning properly."
The court said the death penalty "is a more powerful deterrent to crimes than life imprisonment, where only convicts' physical freedom is restricted. A mere life sentence against perpetrators of heinous crimes is incompatible with the desire for justice of families of victims and ordinary people."
But the four minority judges said capital punishment does conflict with the guarantee of the right to life. "Capital punishment should be abolished and replaced with a life sentence without parole," they recommended.
The majority for the death sentence in 1996 was 7: 2. No one has been executed in the country for over a decade, and Amnesty International lists Korea as having "de facto" abolished the death penalty.
Saturday, February 20, 2010
Canada's Supreme Court authorizes discount for police misconduct while upholding mandatory sentencing termAs detailed in this article from the Toronto Star, which is headlined "High court clarifies minimum sentences: They can be lowered to remedy police abuse, but in most cases mandatory penalty must apply," the Supreme Court of Canada handed down a very interesting sentencing ruling late yesterday. Here are the basics:
Trial judges can lower sentences to denounce police misconduct, but in most cases cannot undercut a mandatory minimum penalty set by Parliament, the country's top court says. The Supreme Court of Canada's ruling stems from a 2004 Alberta case in which a drunk driver was beaten by police.
The decision is considered important because it focuses on mandatory minimum penalties, a contentious tool the federal Conservatives have increasingly invoked in their "tough-on-crime" agenda. The top court did not rule out the "possibility that, in exceptional cases" of egregious behaviour by police, a sentence could be reduced below a limit set out in law. "A sentence cannot be 'fit' if it does not respect the fundamental values enshrined in the Charter," wrote Justice Louis LeBel in the 9-0 decision.
The ruling upheld an Alberta Court of Appeal and trial judge's findings that the RCMP used excessive force when arresting a drunk driver in Leduc in 2004. But the high court agreed with the Alberta appeal court, which restored a mandatory minimum $600 fine for impaired driving on top of a 12-month conditional discharge and one-year driving prohibition.
The Supreme Court's ruling is meant to give guidance to situations in which lower courts have taken different approaches in using sentence reduction as a way to respond to Charter breaches. But it clearly reinforces the need for courts to respect Parliament's decisions to set sentencing floors....
LeBel said "the general rule" is that judges exercising sentencing discretion must follow the guidelines set out by Parliament, and "impose sentences respecting statutory minimums" or other legislated limits on sentencing discretion. There may be "exceptional" cases in which a sentence ought to be reduced even below a statutory minimum, where a lower sentence might be the "sole effective remedy for some particularly egregious form of misconduct by state agents," the high court said.
[The defendant] Nasogaluak pleaded guilty at trial to impaired driving and flight from police – offences that ordinarily would have drawn six to 18 months in jail and a mandatory fine of $600.
At sentencing, he sought and won a reduced sentence because of the police misconduct. The judge ruled police had violated his Charter rights and gave him two conditional 12-month discharges and banned him from driving for a year.
The Supreme Court agreed the police had used excessive force, violating his right to "life, liberty and security of the person" under the Charter. The high court said Nasogaluak's penalty was rightly reduced by the trial judge. LeBel said judges at sentencing may consider "not only the actions of the offender, but also those of state actors."
The full ruling in Regina v. Nasogaluak, 2010 SCC 6 (Canada Feb. 19, 2010), can be accessed at this link.
Some related posts:
- A sentencing approach to dealing with prosecutorial misconduct
- District Court embraces a sentencing approach to dealing with prosecutorial misconduct (and highlights the impact of effective scholarship)
Wednesday, February 10, 2010
China’s highest court issues new guidelines for administering capital punishmentStudents of the modern American death penalty know that the U.S. Supreme Court has spent a good part of the last four decades trying to develop standards for how states must balance equal and individual justice in the administration of capital punishment. Now, as detailed in this new piece from The Times Online, China's Supreme Court has issued some new guidelines as it struggles with similar concerns. Here are the basics:
China’s Supreme Court has urged judges to restrict the use of the death penalty to only the gravest crimes and show “justice tempered with mercy”. However, the top court in the country that executes more people each year than the rest of the world combined stressed the need for capital punishment and warned against showing mercy to influential officials.
Shocked by a series of miscarriages of justice involving the death penalty and taken aback by the level of public anger, the Supreme Court has been trying for several years to restrain the use of capital punishment by local courts. It has sent guidelines to courts nationwide saying that the death penalty should be handed down resolutely – but only when merited. It should apply to only a “tiny minority” of the most serious cases and be backed by ample and valid evidence....
China is believed to execute several thousand people a year, but the total is a state secret. Amnesty International said China’s courts put to death at least 1,718 people in 2008. In January 2007, the Supreme People's Court regained the power of final approval of death penalties, devolved to provincial high courts in the 1980s, and it promised to apply the ultimate punishment more carefully. The number of executions fell by 15 percent in 2007 and by 10 percent in 2008, officials have said.
The guidelines come just ahead of a world congress against the death penalty to be held in Geneva this month. China is certain to be a major focus of discussions.
Tuesday, February 09, 2010
Australia province to start utilizing community-based "sentencing councils"This interest local story from Australia, which is headliend "Community 'sentencing council' to advise on legal punishments," reports on an notable development Down Under. Here are the details:
The Queensland Government says the community will get more of a say in how criminals are punished. Members of the public will be invited to join a sentencing council. It will include victims of crime and experts in criminal law and juvenile and Indigenous justice.
Attorney-General Cameron Dick says it will advise the Government on criminal sentencing, and on Court of Appeal guideline judgments. "The purpose of the council is to bridge the gap between community expectations, Government and the Judiciary in relation to criminal sentencing," he said.
Mr Dick says there are differing views on whether Queensland courts are too lenient. He says he recognises that sometimes, it may seem that sentences do not fit the crime. "I think the community has a very broad view of sentencing," he said. "Some people think sentences need to be tougher -- other people who go through the criminal justice system know how difficult and problematic that process can be."
This form of a "sentencing council" in Australia sounds a bit like American sentencing commissions, but I surmise the composition and responsibilities of the Aussie sentencing council will not be directly akin to American sentencing commission.
Sunday, February 07, 2010
"Record 86% of Japanese Support Death Penalty, Yomiuri Reports"The title of this post is the headline of this Bloomberg news item. Here are the details:
Japanese support for the death penalty rose to a record 85.6 percent, the Yomiuri newspaper reported, citing a poll by the Cabinet Office.
Support for capital punishment rose from 81.4 percent in 2004, while opposition to the death penalty under any circumstances declined to 5.7 percent, from 6 percent, the report said. The Cabinet surveyed 3,000 men and women 20 and older, it said.
Death penalty abolitionists often like to suggest that only third-world countries or countries with poor human rights records like China still are fans of the death penalty. But I always remember that Japan stands as another modern example of an advanced industrialized nation that still utilizes capital punishment. And this latest survey suggests that support for the death penalty in Japan may be the very strongest in the entire world. Very interesting.
Saturday, January 02, 2010
"Man opts for jail over New Year with relatives"
The title of this post is the headline of this amusing story coming out of Italy:
A Sicilian man stole sweets and a packet of chewing gum so he could get arrested and spend New Year's Eve in a jail cell rather than be with his wife and relatives, Italian media reported on Friday.
The 35-year old Sicilian first showed up at a police station on Thursday asking to be arrested because he preferred spending the night in prison rather than with his family, but was rebuffed because he had not committed a crime, the Agi news agency said.
The man immediately went to a tobacco shop next door, where he threatened the owner with a box cutter as he grabbed a few sweets and a packet of gum. He then waited until police arrived to arrest him for robbery, the news agency said.
It seems that we now have nearly conclusive proof that in-laws cause crime.
Tuesday, December 29, 2009
China creates international row by executing Brit for drug offenseAs detailed in this Wall Street Journal article, which is headlined "China Ignores Appeals, Executes Briton," the death penalty is making some interesting international news these days. Here are the details:
China executed a British national for drug smuggling, sparking outrage from British leaders, who had appealed for clemency on mental-health grounds, and threatening to strain relations between the countries.
Akmal Shaikh, convicted of carrying more than four kilograms of heroin two years ago at Urumqi Diwopu International Airport in northwestern Xinjiang province, was executed by lethal injection on Tuesday after China's Supreme People's Court upheld his death sentence, China's state-run Xinhua News Agency reported....
British Prime Minister Gordon Brown condemned the execution, saying in a statement that he is "appalled and disappointed that our persistent requests for clemency have not been granted." He expressed his "sincere condolences" to Mr. Shaikh's family and friends. "I am particularly concerned that no mental-health assessment was undertaken," he added.
Chinese Foreign Ministry spokeswoman Jiang Yu dismissed the British complaints. At a regular news briefing she said the Chinese government is "strongly dissatisfied and is absolutely opposed to the unjustifiable condemnations" from the U.K. "We urge the British side to show respect to China's judicial supremacy and redress the mistake immediately to avoid damaging bilateral relations," Ms. Jiang said....
Xinhua quoted a statement issued by the Supreme People's Court as saying that that there was insufficient proof that Mr. Shaikh had any mental-health issues and that the evidence against him was "certain and the facts were clear." Mr. Shaikh's rights were fully granted, the court said, adding that drug crimes are serious criminal offenses with "severe negative social impact," according to the Xinhua report.
According to Chinese criminal law, people trafficking more than 50 grams of heroin can be punished by death. Reprieve, a London-based prisoner-advocacy group that lobbied for Mr. Shaikh, said he is the first European to be executed in China in 58 years.
Tuesday, December 22, 2009
A nose-for-a-nose and an ear-for-an-ear punishment in Pakistan
Though not exactly involving the biblical punishment of an eye-for-an-eye, this CNN story reports on a sentence imposed in Pakistan that gets pretty close:
A court in Lahore, Pakistan, has ordered that two men have their noses and ears chopped off, after the two were convicted of doing the same to a young woman.
The anti-terrorism court also ordered that brothers Ammanat Ali, 29, and Sher Mohammed, 27, spend life in prison and pay 700,000 rupees ($8,300) in compensation to the victim, Punjab province chief prosecutor Chaudary Mohammed Jahangir said Tuesday. The sentence was handed down Monday in accordance with Islamic law and the country's anti-terror laws, the prosecutor said....
The two men attacked the woman, Fazeelat Bibi, 22, on September 28, in the village of Zafarkey, southwest of Lahore, Inspector Hakim Ali said. Along with their cousin Mohammed Ali and two other men, they hid, stopped Bibi on her way home from work, and strangled her with a wire, the officer said.
When they thought she was dead, they cut off her nose and ears, Ali said. They mutilated her "to set an example," prosecutor Jahangir said....
The high court must confirm the sentence before it is carried out, and a doctor must determine that they can survive the punishment. The high court has suspended similar sentences in the past.