Saturday, March 08, 2014
"The New Normal? Prosecutorial Charging in California after Public Safety Realignment"
The title of this post is the title of this massive new article reflecting massively important research by W. David Ball and Robert Weisberg about the ways in which new sentencing/corrections reform in California may be impacting prosecutorial practices. Here is the article's massive abstract:
California’s Public Safety Realignment Act (“Realignment” or “AB 109”) shifts the responsibility of supervising, tracking and imprisoning specified non-serious, non-violent, non-sexual (“triple-nons” or “N3 felonies” or “non-non-nons”) offenders previously bound for state prison to county jails and probation. The implementation of Realignment in California is the largest correctional experiment of its kind. The advent of Realignment has, of course, affected the decisionmaking of all the official actors in the criminal justice system. But the prosecutor’s role is unique in one clear sense: Prosecutors have, in formal legal terms, virtually unreviewable autonomy in the choice to charge or not charge (so long as any charge matches provable facts with statutory elements).
How does this power operate in the wake of AB 109? Our hypothesis was that many aspects of AB 109 were likely to affect prosecutors’ charging and sentence recommendation choices. The most salient aspects were the change in site and de facto length of incarceration, as well as the secondary effects of new county responsibilities for post-release supervision of many prison parolees. In particular, in exercising discretion, prosecutors might be influenced by their views on the differences in the severity of experience of incarceration in jail as opposed to prison, or by their concerns about jail crowding or the extra costs that county jails and other county agencies might have to absorb under AB 109.
We explored this hypothesis through three study components. First, we established a rough charging baseline through an empirical study. With obtained data from the Attorney General’s office, we examined arrest-to-charging ratios by year and by crime category before and after Realignment. We found very few and small differences, including insignificant differences across counties, and very few differences across crimes.
Second, we exhaustively analyzed the statutory elements of certain very common crimes that fall within AB 109, especially drug and property crimes, and we consulted in great depth with two distinguished California prosecutors, both involved in AB 109 training. Our aim was to find parts of the penal code that applied to similar fact patterns that, nevertheless, would result in significantly different sentencing outcomes. These parts of the code isolate various fault lines in AB 109, which both served as a foundation for the third part of our study and served as a significant roadmap to AB 109 itself.
Third, we surveyed District Attorneys themselves, using a factorial approach that isolates various statutory and extralegal factors. Our questions focused on whether the new sentencing structure might alter prosecutorial decisionmaking in terms of tilting borderline charges towards prison-eligible crimes or recommending especially long jail sentences. We again found no significant differences, although, for reasons we explain in the paper, these conclusions must be read as tentative.
In sum, most charging or recommendation preferences remain consistent with traditional severity factors and do not manifest major alterations in light of AB 109. However, there remains a great deal of uncertainty and variation in the responses we received. This phenomenon manifested itself particularly when prosecutors had to choose from the menu of straight, split, and probation sentences. Recommended terms for split sentences — those involving a combination of jail terms and community supervision — were all over the map, ranging from short terms of both jail and supervision, to short jail and a long tail, to long jail and a short tail. At the same time, jail sentences, obviously available before Realignment but now extended to formerly prison-eligible sentences, were also wildly divergent on the same facts, ranging from a year or less to 20 years or more. Our conjecture is that the new regime of Realignment, introduced alongside the existing sentencing regime, might invite wide variation in sentencing recommendations (with possible attendant unjustified disparities).
Sunday, March 02, 2014
Alabama struggling with enduring challenges as tough-on-crime history creates "box of dynamite"
The New York Times today has this notable and lengthy article about the criminal justice reform challenges facing Alabama headlined "Troubles at Women’s Prison Test Alabama." Here are excerpts:
For a female inmate, there are few places worse than the Julia Tutwiler Prison for Women. Corrections officers have raped, beaten and harassed women inside the aging prison here for at least 18 years, according to an unfolding Justice Department investigation. More than a third of the employees have had sex with prisoners, which is sometimes the only currency for basics like toilet paper and tampons.
But Tutwiler, whose conditions are so bad that the federal government says they are most likely unconstitutional, is only one in a series of troubled prisons in a state system that has the second-highest number of inmates per capita in the nation. Now, as Alabama faces federal intervention and as the Legislature is weighing its spending choices for the coming year, it remains an open question whether the recent reports on Tutwiler are enough to prompt reform.
“Yes, we need to rectify the crimes that happened at Tutwiler, but going forward it’s a bigger problem than just Tutwiler,” said State Senator Cam Ward, a Republican from Alabaster who is chairman of the Senate Judiciary Committee. “We’re dealing with a box of dynamite.”
The solution, Mr. Ward and others say, is not to build more prisons but to change the sentencing guidelines that have filled the prisons well beyond capacity. Just over half the state’s prisoners are locked up for drug and property crimes, a rate for nonviolent offenses that is among the highest in the nation. “No one wants to be soft on crime, but the way we’re doing this is just stupid,” Mr. Ward said.
Still, in many corners of Alabama, a state where political prominence is often tied to how much a candidate disparages criminals, the appetite for change remains minimal. The Legislature is in the middle of its budget session, working over a document from Gov. Robert Bentley that includes $389 million for the state’s prisons. That is about $7 million less than last year’s budget.
The Department of Corrections argues that it needs $42 million more than it had last year. Alabama prisons are running at almost double capacity, and staffing is dangerously low, said Kim T. Thomas, the department’s commissioner. He said he would use about $21 million of his request to give corrections officers a 10 percent raise and hire about 100 officers....
There is no ignoring the prison crisis. Even Stacy George, a former corrections officer who is challenging Mr. Bentley in the June Republican primary by promising to be “the gun-toting governor,” this past week issued a plan for prison reform. It calls for changing sentencing rules, rescinding the “three-strikes” law for repeat offenders, releasing the sick and elderly, and sending low-level drug offenders into treatment programs instead....
“It is just a culture of deprivation and abuse, not just at Tutwiler but in institutions across Alabama,” said Charlotte Morrison, a senior lawyer with the Equal Justice Initiative, a legal organization that represents indigent defendants and prisoners. In 2012, the organization asked the federal government to step in after its own investigation into Tutwiler showed rampant sexual abuse....
“It’s a primitive, very backward prison system,” said Larry F. Wood, a clinical psychologist who was hired at Tutwiler in 2012. He quit after two months, appalled at the conditions and what he said was the administration’s lack of support for mental health services. “I’ve worked in prisons for most of 30 years, and I’ve never seen anything like this,” he said. “We need to back up and look at it with fresh eyes. The people who are running it don’t have the perspective to see what can change.”
Saturday, February 01, 2014
Two notable new Sentencing Project reports on sentencing reform and prison closings
This past week, The Sentencing Project released two notable short reports on state sentencing reforms and prison closings. Both reports are linked from this webpage, where the reports are noted and summarized in this way:
The Sentencing Project released two reports that highlight states downsizing prison systems and adopting sentencing policy reforms. Our research documents a three-year trend of prison closings that produced a reduction of 35,000 beds, including six states reducing capacity by 11,000 beds in 2013.
On the Chopping Block 2013 documents state prison closures and attributes the trend to several factors:
- A declining prison population in many states
- State fiscal constraints
- Sentencing and parole reforms in the areas of drug policy, diversion programs, and reductions in parole revocations to prison
The State of Sentencing 2013 documents reforms in 31 states in both the adult and juvenile justice systems, including:
- Expanding alternatives to incarceration for drug offenses
- Policies to reduce returns to prison for supervision violators
- Comprehensive juvenile justice measures that emphasize prevention and diversion
Saturday, January 11, 2014
A few notable headlines concerning notable state prison realities
My review of sentencing law and policy stories this morning revealed this array of noteworthy reports and commentary pieces concerning a number of state prison systems across the US. I have reprinted the headlines and subheading, which serve as a kind of summary of the issues covered:
From Arizona here, "Private prisons really are cheaper for taxpayers; Lawmaker: Column, editorial are just plain wrong"
From California here, "California prison population expected to grow over next 5 years: Ten thousand more inmates are expected, complicating Gov. Brown's effort to abide by a court order to reduce the prison population."
From Ohio here, "Ohio's prison population nears record high, raising the prospect of inmates being released early"
From Oklahoma here, "Oklahoma Board of Corrections looks at expanding use of private prison beds: The Oklahoma Board of Corrections is looking at three options to deal with overcrowding at the state's prison facilities: expanding public prisons, contracting for more private-prison beds, and buying or leasing one of the state's two empty private prisons."
From South Carolina here, "When Good People Do Nothing: The Appalling Story of South Carolina's Prisons: A judge's order in an inmate abuse case highlights the role played, or not played, by the state's political and legal infrastructure."
Monday, December 23, 2013
Isn't it crazy (and one reason for much dysfunction) that California does not have some kind of sentencing commission?
I have written a law review article emphasizing that the mere existence of a sentencing commission within a jurisdiction does not magically solve or even necessarily improve the development of sentencing and corrections laws and policies in that jurisdiction. Indeed, some might reasonably claim that in jurisdictions that have other agencies collecting system-wide data, a sentencing commission can become a costly luxury that may at times do more harm than good.
That all said, and as the question in the title of this post highlights, it strikes me as truly nuts that California has never created some kind of sentencing commission to assemble at least basic state-wide sentencing information. Indeed, given the huge mess that has long been California's massive sentencing and corrections system, and given the crisis-mode reforms and regulations imposed by judges and governors for decades now, I have to think any kind of sentencing commission in California would be able to improve matters in some way at least by being the go-to location for information about what the heck is even going on in the state on a range of sentencing and corrections issues.
These matters come to mind in reaction to this notable new article in the Sacramento Bee headlined "Sentencing commission, suggested in Sacramento, faces long odds." Here are excerpts:
Key California lawmakers this summer suggested that a commission to review and overhaul criminal sentences not only could bring coherence to a disjointed system but also perhaps ease chronic prison overcrowding in the long term. But the idea now appears stalled, despite the incentive of federal litigation that could force Gov. Jerry Brown to release as many as 10,000 inmates next spring.
Lawmakers chastened by a history of unsuccessful sentencing commission bills hold out little hope that this time could be different. “These issues are hard,” Sen. President Pro Tem Darrell Steinberg, D-Sacramento, said in an interview last week. “They’re hard to bite off politically.”
The notion of a panel to overhaul California’s penal code has percolated for decades but eluded proponents time and again. Supporters argue that a steady accumulation of different regulations, layered on top of one another over time, has led to a labyrinth of sentencing guidelines. “There is a lot of disproportionate punishment in our penal code, and that’s because not uncommonly a horrible crime may be committed in someone’s district and so the response is legislatively to get tougher,” said Sen. Mark Leno, D-San Francisco. “These are emotional issues,” he added, “and to have politics infused in all of our decision-making does not create the most sound public policy.”
State sentencing commissions are typically independent bodies, appointed by officials, that study a state’s galaxy of sentencing laws and condense them into a comprehensive framework. They issue guidelines that would increase or decrease sentences for various categories of crimes. That troubles some law enforcement leaders who see the potential for weakened sentences. And it rattles lawmakers wary about constituents – or future electoral opponents – who could hold them responsible for changes that emanated from an unelected body.
“No legislative body wants to give up power,” said Rep. Karen Bass, D-Los Angeles, a former Assembly speaker who pursued a sentencing commission during her time in the Legislature.
Historically, the state’s law enforcement community has been hostile to allowing appointed entities to dictate consequences for crimes. District attorneys, sheriffs and police chiefs have opposed past efforts, raising concerns about who would sit on panels with expansive authority to reshape criminal justice. “In California, the only times sentencing commissions come up, it has been code for sentence reductions,” said Sacramento County District Attorney Jan Scully.
But the idea resurfaced this summer when Gov. Jerry Brown, seeking to satisfy a federal order to reduce California’s prison population without resorting to more early releases, proposed spending an additional $315 million to provide more cells. Steinberg broke with the governor, rallying Senate Democrats behind an alternate plan that questioned expanded capacity.
Among other provisions, Steinberg’s blueprint included a detailed plan for immediately creating an 18-member sentencing commission that could provide recommendations by the end of 2014. A letter to Brown argued that “short-term fixes provide no sustainable remedy.” Steinberg’s letter said the panel would make recommendations aimed at “long-term prison capacity, staying within the (prison capacity) cap, including changes in criminal sentencing and evidence-based programming for criminal offenders.” He included private poll results that showed nearly three-fourths of Californians supported a panel “to streamline California’s criminal statutes with the goal of safely reducing prison costs and maximizing public safety.”
But by summer’s end, the governor got his cash infusion. The final bill also created a special corrections policy committee tasked with broadly examining criminal justice in California. Last week, Steinberg called sentencing reform “a key piece” of rethinking the state’s criminal justice system. But he expressed doubt that substantial changes would materialize in the coming legislative session....
This session, Leno carried his second consecutive bill easing penalties for simple drug possession. Brown vetoed it. Part of Leno’s argument emphasized the state’s uneven sentencing statutes, which make possession of cocaine a felony but allow possession of Ecstasy or methamphetamine to be charged as misdemeanors. Leno cited such inconsistencies in arguing that the sentencing commission is “an idea whose time has come,” adding that the state’s struggles to reduce its prison population “only underscores the need for it.”...
Past sentencing commission efforts have self-destructed because the panel’s recommendations, though subject to legislative approval, would have carried the force of law, argued Sen. Loni Hancock, D-Berkeley. By contrast, Steinberg proposed a purely advisory body.
After seeing previous resentencing campaigns stymied, Hancock said an advisory commission may be the only tenable approach. Even if a commission’s recommendations remain just that, Hancock said she would push to see them implemented. “It’s just so important to cast some rational light on what goes on with our sentencing that I would be happy to see one that makes discretionary recommendations,” Hancock said.
I am pleased to hear there is talk of making a sentencing commission advisory in California because that should be one key to making such an entity a viable reality. But, were I a lawmaker in California, my proposal for a CA sentencing commission would be for the entire voting body of any such commission to be staffed only with district attorneys, sheriffs and police chiefs and for these folks on the CA commission to always have a majority of voting members. In that way, it should and could be clear that having a CA sentencing commission would not be code for sentence reductions but rather just a means for seeking greater sentencing rationality and information as defined by those very state actors elected and most responsible to the voters for seeking to ensure public safety and sensible use of tax resources to that end.
Wednesday, December 18, 2013
Task force recommends broad changes to sentencing and corrections in Mississippi
As reported in this local article, headlined "Sweeping prison reforms suggested in Mississippi: More judicial discretion among proposals," there is now big talk about big reforms in The Magnolia State. Here are the details:
A criminal justice task force on Tuesday recommended sweeping reforms to reduce Mississippi’s soaring prison population and costs, standardize sentences and reduce recidivism. “This is the first time in my career — 32 years — that we have taken a comprehensive look at corrections in this state,” said Mississippi Department of Corrections Commissioner Chris Epps. “… We all know the cost of doing nothing.”
The recommendations include providing more discretion for judges to impose alternatives to prison and creating “true minimums” on when violent and nonviolent offenders are eligible for release. They also call for defining what constitutes violent crime — something officials said isn’t clear in state law. Proposals also include increasing the threshold from $500 to $1,000 for felony theft and lowering drug sentences for possession of small amounts while cracking down on large drug dealers.
Epps headed the bipartisan, 21-member task force of lawmakers, judges, prosecutors, law enforcement and defense attorneys. The group, after working for seven months with assistance from the Pew Charitable Trust’s Public Safety Performance Project, developed recommendations for the 2014 Legislature.
Gov. Phil Bryant, Lt. Gov. Tate Reeves, House Speaker pro tem Greg Snowden and others voiced their support for the proposal after the task force adopted it. The task force was created by a bill Snowden authored this year. Bryant said the reforms “put victims first,” protect public safety and provide “clarity of sentencing.” Reeves praised the recommendations as “evidence-based, data-driven, fiscally sound criminal justice reforms.”
While the nationwide trend has been lower prison population, Mississippi’s has skyrocketed since it passed some of the toughest “truth in sentencing” laws in the 1990s. The state now has more than 22,600 prisoners and the second-highest incarceration rate in the nation. Prison costs have risen from $276 million in 2003 to $361 million, with unchecked growth expected to result in 2,000 more inmates and cost taxpayers another $266 million over the next 10 years.
The state has attempted unsuccessfully to reduce prison costs with a patchwork of release policies that created confusion in sentencing and a disconnect between the judges/prosecutors and corrections. Uncertainty about how long convicts would serve helped push sentence lengths by 28 percent the last decade....
State Sen. Willie Simmons, D-Cleveland, said the proposed reforms are “historical,” and “create a better system as opposed to a build it (prisons) and they will come approach.”
Saturday, November 23, 2013
Corrupt Massachusetts lab analyst gets (significant? inadequate?) state prison term for misdeeds
As reported in this Boston Globe article, "Annie Dookhan, the drug analyst who tampered with evidence and jeopardized tens of thousands of criminal convictions, was sentenced Friday to three to five years in state prison, closing a sorrowful chapter for the woman at the center of a scandal that continues to plague the state’s criminal justice system." Here is more:
The 36-year-old mother of a disabled child, whose marriage fell apart in the months after the scandal, softly pleaded guilty to 27 counts of misleading investigators, filing false reports, and tampering with evidence. She must also serve two years of probation and undergo mental health counseling, if needed....
Attorney General Martha Coakley, whose office prosecuted the case, said in an interview later that the conviction of Dookhan was only one part of an ongoing investigation into the quality of drug testing at the Hinton drug lab, but she said it was needed to bring some accountability for her crimes. “Certainly one of the victims in this case, and the actions of Annie Dookhan, is the public trust,” Coakley said.
Dookhan’s lawyer, Nicolas A. Gordon, would not comment after Friday’s hearing. He had asked Suffolk Superior Court Judge Carol S. Ball to sentence Dookhan to no more than a year in prison.
Dookhan admitted to filing false test results and mixing drug samples, and to later lying under oath about her job qualifications, but she said it was only to boost her work performance.
Prosecutors had asked that Dookhan serve 5 to 7 years in prison, but Ball kept to her earlier decision that she would sentence the chemist to 3 to 5 years, finding that, while Dookhan was a “broken person who has been undone by her own ambition,” the consequences of her crimes were still “nothing short of catastrophic.”
State Representative Bradley H. Jones Jr., the House Republican leader, expressed disappointment with the sentence. “You walk away feeling this is really inadequate to what has happened, and the ramifications that it has had, and is going to have, on the criminal justice system,” Jones said. “Three to five years is not adequate.”...
By all accounts, the scandal at the Hinton laboratory in Jamaica Plain is the worst to hit the state’s criminal justice system in recent memory, and is still deepening. Officials have determined that Dookhan was involved in more than 40,000 cases at the lab from 2003-2012, possibly tainting the integrity of the evidence in those cases.
Defendants have asked that their convictions be tossed, or that they be released from prison as they seek new trials. Public safety officials feared their release would create a crime wave. So far, the state has spent $8.5 million reviewing the drug cases and holding special hearings for defendants, and officials have budgeted an additional $8.6 million, expecting the costs to increase.
As of Nov. 5, according to the state Trial Court, 950 people have been given special Superior Court hearings in eight counties, from Worcester east. Overall, through Nov. 5, the courts have held 2,922 hearings — in addition to their regular caseload — for defendants asking that their cases be dismissed or that they be released from jail.
By August, a year after the extent of Dookhan’s crimes were first discovered, a Globe review of court records showed that more than 600 defendants had convictions against them erased or temporarily set aside, or they have been released on bail pending new trials. Of those, at least 83 defendants — about 13 percent of the total — had been arrested and charged with other crimes. In one case, a Brockton man released from prison last fall because Dookhan was involved in his case was arrested for allegedly killing a man in a drug dispute in May.
Cape & Islands District Attorney Michael O’Keefe said that the lab scandal has burdened district attorneys and the courts. At times, the courts have had to release prisoners or grant them new trials “in the interests of fair justice,” he said. “It’s something that we’re going to be trying to correct for quite a period of time,” O’Keefe said.
But he and defense lawyers also agreed that the woes will not end with Dookhan’s sentence. Defense lawyers have called on the state Trial Court to set up an independent special court system to review evidence that was handled not only by Dookhan, but by anyone from the Hinton laboratory. The lab, which was closed by State Police in 2012, handled more than 190,000 cases since the early 1990s.
Thursday, October 31, 2013
New report (from small government groups) urges Louisiana to reform its toughest sentencing lawsAs reported in this AP article, headlined "New study calls on La. to change sentencing laws," a notable group of libertarian-leaning organizations has produced a big report urging the state with the highest rate of incarceration to significantly scale back its most extreme sentencing laws. Here are the basics:
The full 36-page report, titled "Smart on Sentencing, Smart on Crime: An Argument for Reforming Louisiana’s Determinate Sentencing Laws," is available at this link. The reports executive summary can be accessed here, and it gets started this way:
Louisiana should shrink its prison population and costs by repealing minimum mandatory sentences for nonviolent crimes, said a study released Tuesday by several right-leaning policy organizations. The groups suggest that Louisiana could maintain public safety while also reducing a per capita incarceration rate that is the highest in the nation, by making changes to the habitual offender law and locking up fewer people for nonviolent offenses.
The Reason Foundation, a libertarian organization based in California, made the suggestions along with the Pelican Institute for Public Policy, a Louisiana-based conservative organization, and the Texas Public Policy Foundation. "Harsh, unfair sentences are putting too many Louisianans in jail for far too long, and at a terrible cost to taxpayers and society," Julian Morris, vice president of Reason Foundation and co-author of the study, said in a statement.
Nonviolent offenders account for the majority of the state's inmates, the report says. By shrinking its prison population, the study says Louisiana could invest more money in rehabilitation programs for those who remain in jail.
Gov. Bobby Jindal's administration said it has asked the state's sentencing commission to review the report's recommendations. Any changes would need approval from state lawmakers.
Over the past several decades, Louisiana legislators have passed a number of determinate sentencing laws aimed at reducing crime and incapacitating certain types of offenders. Because these laws have been disproportionately applied to nonviolent crimes, nonviolent offenders now account for the majority of inmates and admissions to prison in the state. This has produced a number of unfortunate consequences, such as an increase in the state’s prison population from 21,007 in 1992 to 39,709 in 2011 and a $315 million increase in correction expenditures during the same time period, from $442.3 million (in 2011 dollars) in 1992 to $757.4 million in 2011. Meanwhile, there is little evidence that the laws have done anything to reduce Louisiana’s violent crime rate, which remains considerably above both the national average and the rates in its neighboring states. Today, Louisiana has the highest incarceration rate in the country, with 868 of every 100,000 of its citizens in prison.
Louisiana’s citizens could benefit considerably from changes to the way in which convicted criminals are sentenced. As things stand, nonviolent offenders who pose little or no threat to society are routinely sentenced to long terms in prison with no opportunity for parole, probation or suspension of sentence. In most cases, this is a direct result of the state’s determinate sentencing laws. These prisoners consume disproportionate amounts of Louisiana’s scarce correctional resources, which could be better utilized to ensure that violent criminals are more effectively kept behind bars.
Tuesday, October 08, 2013
What is the "right" sentencing range for aggravated vehicular homicide as a result of drunk driving?The question in the title of this post is prompted by this recent lengthy article from my local Columbus Dispatch, and it is a question perhaps likely be be broadly in the run-up to the scheduled sentencing next week here in Ohio in a a high-profile drunk driving homicide case. The article is headlined "Vehicular homicide sentences not harsh enough, say victims’ families: Others say defendant’s history, remorse should count," and here are excerpts:
When she learned that the drunken driver who killed her 15-year-old son could get no more than two to eight years in prison for aggravated vehicular homicide, Ellenna Houser was shocked....
Cathy Humphries, who struck Austin Houser with her pickup truck a year ago as he walked on a rural route in Logan County and left him there to die, was sentenced in May to eight years in prison — six years for aggravated vehicular homicide and two years for leaving the scene. “Drug dealers get more time than that,” Houser said.
Columbus defense attorney Brad Koffel gets a different reaction to the potential sentence when he speaks to the family members of a client charged with killing someone while driving drunk. “They find it harsh,” he said. “They’ll say, ‘He has no prior record. This wasn’t intentional.’ ”
But Koffel understands that the families of the victims, and those prosecuting such cases, have a different attitude. “If I were the prosecutor, representing the state of Ohio, I would find eight years to be wholly insufficient,” he said. Finding a balance between those positions at sentencing is one of the toughest jobs a judge will ever face, Koffel said.
Franklin County Common Pleas Judge David W. Fais will be in that spot on Oct. 16 when he announces a sentence in an aggravated vehicular homicide case that is drawing national attention.
Matthew Cordle, 22, of Powell, pleaded guilty last month to the charge after posting an online confession that went viral. He admitted that he was driving drunk at 2:40 a.m. on June 22 when he killed 61-year-old Vincent Canzani in a wrong-way crash on I-670 near 3rd Street. In the video, which has garnered more than 2.2 million hits on YouTube, Cordle promises to “take full responsibility” for his actions and begs others not to drink and drive.
Prosecutor Ron O’Brien said taking responsibility in this case means serving the maximum penalty, which his office will request at the sentencing hearing. He is among those who think Ohio’s penalties for causing a death through drunken driving are too lenient.
O’Brien said he has received emails from across the country as a result of the Cordle case. “They’re asking, ‘What’s up with Ohio? How can somebody be totally drunk, driving the wrong way on the freeway, kill someone and the penalty is only eight years?’ And it can be as low as two years,” he said. “I don’t think that’s a fair or appropriate penalty.”
W. Martin Midian, one of Cordle’s attorneys, said a fair sentence for his client, who has no felony record and no previous DUI convictions, is something less than the maximum. “I think if Matt were to receive the maximum sentence, it would send the wrong message about people accepting responsibility for their actions,” he said.
Koffel went further, saying that if Cordle receives the maximum as a first-time offender, “I think he has a very good argument on appeal. Max sentences are to be reserved for the worst of the worst.”...
Those found to be driving recklessly when they cause a fatal crash, for such things as texting behind the wheel or running a red light, are charged with a lower-level felony that has a sentencing range of one to five years in prison.
Ohio’s neighboring states are stricter about drunken drivers who cause a death, according to information compiled by Mothers Against Drunk Driving. A first offense brings a prison term of two to 10 years in West Virginia and five to 10 years in Kentucky. The maximum penalty is 10 years in Pennsylvania and 15 years in Michigan. In Indiana, punishment for a first offense is two to eight years for those with a blood-alcohol content of 0.08 percent to 0.14 percent. Those who test higher can get up to 20 years.
“Ohio is weaker than a lot of states, but we’re not the weakest,” said Doug Scoles, state executive director of MADD. In about half of the states, prison isn’t mandatory, according to MADD’s literature.
The last time Ohio altered penalties for the offense was in 2007. That’s when the legislature passed a law that toughened the sentence for those convicted of aggravated vehicular homicide while drunk who have three or more DUI convictions in the preceding six years. For them, the penalty is 10 to 15 years.
Thursday, October 03, 2013
Guess which state has the highest rate of incarceration of black men in the entire US?
Click through to see the somewhat surprising answer...This NPR story answers the question in the title of this post. The piece is headlined "Wisconsin Prisons Incarcerate Most Black Men In U.S.," and it starts this way:
The United States prison population is still the world's highest, with more than 1.5 million people behind bars. Black men are more likely to be sent to prison than white men, and often on drug offenses. A study from the University of Milwaukee-Wisconsin looked at that state's incarceration rates and found they were the highest in the country for black men.
The University of Wisconsin researchers say their analysis was truly eye-opening. They found that Wisconsin's incarceration rate for black men — 13 percent — was nearly double the country's rate.
"We were so far above everybody else. That just sort of stunned us when we saw that," says Professor John Pawasarat, who studied two decades of Wisconsin's prison and employment data.
Pawasarat found that nearly 1 in 8 black men of working age in Milwaukee County had served some time in the state's correctional facilities. At 13 percent, the rate was about 3 percentage points above Oklahoma's — the state with the second highest rate of incarceration for black males. (Gene Demby wrote about this same topic and noted that Wisconsin also has the highest rate of Native American men who are behind bars. One in 13 Indian men are incarcerated.)
"Risk Redux: The Resurgence of Risk Assessment in Criminal Sanctioning"The title of this post is the title of this new paper available via SSRN and authored by John Monahan and Jennifer Skeem. Here is the abstract:
After almost four decades of “just deserts,” the past several years have seen a remarkable resurgence of risk assessment as an essential component of criminal sanctioning. In this article, we review current practice in the incorporation of risk assessment into the sanctioning systems of several illustrative states, and describe the major dimensions on which state practices differ. We then elaborate the various meanings ascribed to the foundational concept of “risk” in criminal sanctioning, and contrast “risk” with what are now often called “criminogenic needs,” the fulfillment of which ostensibly reduce an offender’s level of “risk.” Finally, we address the choice of an approach to risk assessment in sentencing, particularly in the resource-starved state of current correctional practice.
Wednesday, October 02, 2013
Alabama rolls out new presumptive sentencing guidelines (which prosecutors mostly oppose)
While October 1, 2013 was an eventful day around the nation with the roll-out of the new federal health care law and the partial federal government shut down. But in Alabama, the start of October 2013 was also a big deal because it was the effective date for the application of new sentencing reforms. And, in sharp contrast to the federal sentencing system where applicable guidelines are distinctly harsh and draw the ire mostly of defense attorneys, under Alabama's new more lenient guidelines, it is the prosecutors who are complaining about judges having to follow presumptive sentencing rules.
This local article, headlined "More Alabama nonviolent offenders may avoid prison under law now in effect, DAs not happy," explains the new Alabama sentencing world and the concerns being expressed by prosecutors about having judges having to follow sentencing laws they disfavor:
Thieves, small-time drug dealers, repeat drug-users and other nonviolent offenders will find the world has changed beginning today, as Alabama tries to cope with its bursting-at-the-seams prison system by being more “selective” about who gets locked up.
Starting today new sentencing guidelines cover many nonviolent theft and drug charges. Burglary and drug trafficking charges are not on the list, but Alabama’s habitual offender laws that led to long sentences after two or more prior felonies will no longer automatically result in decades-long prison sentences for nonviolent offenders.
There are numerous changes, but the key differences are that judges in most cases are expected to use a worksheet to guide the decisions about “in or out of prison” and “how long a sentence.”
There have been complaints by prosecutors and some judges that the guidelines take the court’s discretion out of the system. The guidelines were developed beginning in 2000 and went into effect in 2006 as “voluntary.” But guideline use varied widely around the state, said Bennet Wright, executive director of the Alabama Sentencing Commission. In 2012, the Alabama Legislature agreed to make the guidelines “presumptive” meaning they would be applied unless compelling reasons were found to deviate from the guidelines.
Madison County District Attorney Rob Broussard said in a purely theoretical world, his office would oppose the new sentencing system. “But in the practical, budget-driven world, we understand why we have them,” Broussard said. “In this state, as in a lot of jurisdictions, we can about talk justice and what something is worth until we’re blue in the face, unfortunately it’s a money game. Do you have space to house criminals or not?”
Wright said prison costs and issues of fairness have driven the new process. “Alabama has the most overcrowded prison system in the country,” he said. “There is a very serious funding issue, coupled with an overcrowding issue and something has to be done. The state has to be increasingly more selective about which nonviolent offenders are sentenced to prison.”
Defendants facing similar charges across the state were not getting the same sentences, an issue that the Sentencing Commission has long been concerned about, Wright said. “The commission’s goal was to eliminate as much unwanted disparity as possible and create as much uniformity statewide as possible,” he said. “There has not been a lot of uniformity statewide amongst similar cases. You could have neighboring counties -- whether urban or rural, some in the same courthouse -- with judges using different practices. It was varied across the state, and a lot of people’s reactions have been, ‘That’s why it’s presumptive now.’ It’s an issue of fundamental fairness.”....
The Alabama District Attorneys Association has also been critical of the changes, arguing the rules will limit prosecutors’ ability to punish repeat offenders. St. Clair County District Attorney Richard Minor, president of the Alabama District Attorneys Association, said the association is working on proposed legislation for changes to the law.
Minor said the DA’s would like to see multiple charges in a drug distribution case be counted individually in the guidelines, rather than as one sentencing event which could lessen the likelihood of prison. Minor said he’s also concerned by what the worksheet requirements leave out.
“I think it’s hard to determine someone’s criminal behavior and their ability for rehabilitation, based on numbers on a sheet of paper,” Minor said. “I think a DA’s office and judge in the community have more information than can be put down on paper.”
I find it so very telling that when states create sentencing guidelines which generally push judges away from long prison terms (unlike the federal guidelines which general push judges toward long prison terms) we hear state prosecutors complaining that use of guidelines at sentencing does not capture all the unique facets of offenses and offenders. This provide for me still more proof that the severity of applicable rules is what really shapes the litigants perspectives as to whether sentencing guidelines should be presumptive or merely advisory.
For lots of reasons, and perhaps especially because Alabama's sentencing laws are evolving in kind of the reverse concerning how federal sentencing laws evolved over the last 25 years, I think sentencing reformers ought to be studying Alabama sentencing reforms past, present and future very closely. Helpfully, as the state starts a new sentencing reform chapter, the local papers have all this notable new coverage of developments:
- "Madison County courts must adjust to new, lighter sentences for nonviolent offenders"
- "Mobile-area prosecutors rip sentencing rules calling for little or no prison time"
- "First challenge in sentencing guidelines? Getting judges to fill out the paperwork"
- "Shortsighted? Critics question whether sentencing reform will create repeat offenders"
Monday, September 16, 2013
Two new commentaries on California's enduring need for enduring sentencing and corrections reformCommentators in California soundly and sensibly recognize that last week's "deal" to deal with the state's overcrowded prisons (basics here) is not a long-term solution to the range of issues that helped lead to the state's problems in the first place. For example, this new Los Angeles Times op-ed by Lois Davis, a policy researcher at the Rand Corporation, stresses the need for better prison programming to reduce recidivism. Here are excerpts:
If California is serious about reducing its prison population, one crucial component will have to be reducing recidivism. Currently, a lot of the state's inmates are men and women who've been in prison more than once. They get out, they have little training or education, they can't get jobs and, in many cases, they return to lives of crime and find themselves back behind bars.
But a major new study of correctional education in U.S. state prisons suggests there are things California could do to slow that revolving door. Our research demonstrates that ex-offenders' futures may depend on what, if anything, they learn while behind bars....
My Rand Corp. colleagues and I recently completed a national study examining all the evidence on the effect of correctional education on recidivism and employment. We found that inmates who participated in correctional education programs — remedial education to develop reading and math skills, GED preparation, postsecondary education or vocational training — were 43% less likely to return to prison within three years of release in comparison to those who did not participate. That's a 13-percentage-point reduction in the risk of reoffending.
Inmates who receive correctional education behind bars are not just significantly less likely to return to prison; they are also more likely to find jobs after being released. Prisoners who participated in academic or vocational education programs had a 13% better chance of finding employment than those who did not. And prisoners who participated specifically in vocational training programs were 28% more likely to be employed after release from prison than those who were left out.
With times being tough and budgets tight, state policymakers, corrections officials and correctional education administrators will rightly ask whether the cost of providing such programs are worth the gains in lower recidivism. Our research shows that it is....
Failing to invest properly in education and training programs carries real risks, thrusting more uneducated and ill-equipped ex-cons onto the streets. And in California, that investment needs to be made not just in state prisons but in county jails too, since realignment has meant that many offenders who would have served their terms in prison are incarcerated in jails instead. The benefits of inmate education can extend far beyond prison walls. When former inmates are able to land jobs and stay out of prison, their families and communities gain too.
Similarly, though with a distinct reform focus, this local editorial stresses the need for broader sentencing changes in California. Here is an excerpt:
California has spent the past two decades learning a harsh, expensive lesson: The state does not have the financial resources to keep pace with the consequences of the hard-line sentencing laws imposed in the 1990s....
Politicians have long known that comprehensive sentencing reform is the solution, but have largely balked for fear of being labeled soft on crime. Until now. The compromise between Gov. Jerry Brown and Republican and Democratic legislative leaders on prison overcrowding creates a rare opportunity for California to seriously address the issue....
The challenge will be crafting new sentencing laws that deter crime, provide a fair punishment for criminal transgressions and reduce the state's 65 percent recidivism rate -- the highest in the nation. The national average is about 45 percent....
Comprehensive sentencing reform is the logical next step for California to create a sustainable, efficient and just state prison system. Maybe we can leave politics out of it.
September 16, 2013 in Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (5) | TrackBack
Sunday, August 11, 2013
"California’s Continuing Prison Crisis"The title of this post is the headline of this new New York Times editorial. Here are excerpts:
California has long been held up as the land of innovation and fresh starts, but on criminal justice and incarceration, the Golden State remains stubbornly behind the curve.
Over the past quarter-century, multiple lawsuits have challenged California’s state prisons as dangerously overcrowded. In 2011, the United States Supreme Court found that the overcrowding had gotten so bad — close to double the prisons’ designed capacity — that inmates’ health and safety were unconstitutionally compromised. The court ordered the state to reduce its prison population by tens of thousands of inmates, to 110,000, or to 137.5 percent of capacity.
In January, the number of inmates was down to about 120,000, and Gov. Jerry Brown declared that “the prison emergency is over in California.” He implored the Supreme Court to delay a federal court order to release nearly 10,000 more inmates. On Aug. 2, the court said no. Over the furious dissent of Justice Antonin Scalia, who reiterated his warning two years ago of “the terrible things sure to happen as a consequence of this outrageous order,” six members of the court stood by its earlier ruling. California has to meet its goal by the end of 2013.
The state claims that releasing any more inmates would be a threat to public safety, as if the problem were too little prison space. In fact, California’s problem is not excessive crime, but excessive punishment.
This was obvious years before the Supreme Court weighed in. Since the mid-1970s, California’s prison population has grown by 750 percent, driven by sentencing laws based largely on fear, ignorance and vengeance. The state’s notorious three-strikes law, passed in 1994, is only the most well-known example. Because of it, 9,000 offenders are serving life in prison, including many whose “third strike” was a nonserious, nonviolent offense — in one case, attempting to steal a pair of work gloves from a Home Depot.
Californians have made clear that they no longer accept traditional justifications for extreme sentencing. Last November, voters overwhelmingly passed Proposition 36, which restricted the use of the three-strikes law for nonviolent offenses, even for current prisoners. It wasn’t just about saving money; exit polls showed that nearly three-quarters of those who supported the proposition said they felt the law was too harsh....
If California wants to avoid another legal battle over its overcrowded prisons, there are two things it can do right away.
First, it should establish a sentencing commission to bring consistency, proportionality and data-based assessments to its laws. Twenty-one states, the District of Columbia and the federal government already have such commissions, and they make a difference. In Virginia and North Carolina, both of which had prison overcrowding, sentencing commissions helped focus scarce resources on housing the most violent offenders, limiting prison growth without jeopardizing public safety. Criminal justice reform advocates have unsuccessfully pushed for such a commission in California. If the state is to get away from its irrational and complicated sentencing, it needs a commission, and it needs to insulate it as much as possible from the political actors who have contributed so much to the state’s current crisis.
Second, the state must do more to help released prisoners get the re-entry and rehabilitation services that already exist across California. Inmates are often released with no warning to friends or family, with no money, no means of transportation and no clothes other than the jumpsuits on their backs. It is no wonder a 2012 report showed that 47 percent of California prisoners returned to prison within a year of their release, a significantly higher rate than the national average....
California’s prison population is consistently among the largest in the country. While it presents an extreme case, its problems are representative of what is happening in prisons and jails in other states. If California would redirect its energy from battling the federal courts to making the needed long-term reforms, it could once again call itself a leader.
Thursday, August 01, 2013
Cleveland kidnapper Castro gets LWOP sentence plus 1000 years as plea deal providedI had the honor this morning of watching the first part of the state sentencing proceeding for Cleveland kidnapper Ariel Castro in a remote studio waiting to be a boxed pundit on CNN. Consequestly, I will link here and quote below part of CNN's extensive coverage of the sentencing chapter of this high-profile case:
Kidnapping victim Michelle Knight told her captor, Ariel Castro, during his sentencing hearing, "You took 11 years of my life away. ... I spent 11 years in hell. Now, your hell is just beginning."
"I can forgive you, but I will never forget," she said in her statement to Castro, calling him a hypocrite. "Nobody should go through what I went through," she said tearfully. She called another victim, Gina DeJesus, her "teammate" saying the woman saved her when she was "dying from his abuse." Knight said she "will overcome what happened" but Castro "will face hell for eternity."
During Ariel Castro's sentencing hearing, prosecutor Anna Faraglia said that Castro "tormented (his victims) by allowing them to watch their vigils ... and even had the audacity to attend them." She further said that Castro would talk to his victims' parents as if he were distraught by their disappearances when "they were right underneath his roof."
Tim McGinty, Cuyahoga County prosecutor, stressed there's no backing to the claim that Ariel Castro suffered from mental illness. "He is responsible," he said, likening him to murderers John Wayne Gacy and Ted Bundy. "He has no excuse." When asked what Castro would do if he could go back and do things differently, the kidnapper responded that he'd do it all over again, McGinty said. "He doesn't believe he did anything wrong," McGinty said. "There is no remorse."
Defense attorney Craig Weintraub then told the judge that he felt some of the testimony presented was inappropriate because "these were really private matters," the sentence had been agreed upon prior to the hearing and Castro waived his right to challenge the facts of the case. Judge Michael Russo responded that he felt the testimony and evidence was necessary to help him guide his decision on whether to accept the sentence.
Cleveland kidnapper Ariel Castro, speaking at his sentencing hearing, said, "I'm not a violent person. I simply kept them there so they couldn't leave." He was referring to the three women he held captive for about a decade. Castro said he knew what he did was wrong, but he argued that the "accusations that I would come home and beat them" are "totally wrong."
"I'm not a monster. I'm just sick. I have an addiction. Just like an alcoholic has an addiction."...
Describing himself as a "very emotional person," Ariel Castro said during his sentencing hearing that "these people are trying to paint me as a monster and I'm not a monster. I'm sick."
"I believe I am addicted to porn to the point that it makes me impulsive and I lost it," he said, adding he's "not trying to make excuses."
Ariel Castro took issue with the aggravated murder charge related to the allegation that his abuse terminated the pregnancy of one of his victims, saying there was no evidence the incident occurred. Judge Michael Russo reminded him that he pleaded guilty, and Castro said he did so only to save his victims further psychological trauma....
Judge Michael Russo has already sentenced kidnapper Ariel Castro to hundreds of years in prison, mostly in eight- to 10-year consecutive blocks. Russo said Castro "will never be released from incarceration during the period of his remaining natural life for any reason."
"A person can only die in prison once," Judge Michael Russo told Ariel Castro Thursday in handing down a sentence of life in prison plus 1,000 years. The judge called the sentence "commensurate with the harm you've done." Russo, noting that Castro treated his victims as "slaves," said consecutive sentences rendered in his case must be "imposed" to protect the public and "to punish you."...
"There is no place in this city, there is no place in this country, there is no place in this world for those who enslave others," Judge Michael Russo told kidnapper Ariel Castro. The court in Cuyahoga County is seizing the property of Ariel Castro and imposing a fine of $100,000 on him, in addition to his massive sentence.
Related prior posts:
- Could and should the death penalty be on the table in the Cleveland kidnapping and sexual torture case?
- Cleveland police report supports Aggavated Murder capital charges against Ariel Castro
- "Why Might the Cleveland Kidnapper Get Charged With Murder?"
- Effective discussion of death penalty prospects for Cleveland kidnapper (and alleged pregnancy terminator) Ariel Castro
- "Man in case of 3 Ohio women held captive faces 329 charges including murder, rape, kidnapping"
- Not surprisingly, early buzz about a possible plea for Cleveland kidnapper Ariel Castro
- Committee of prosecutors to consider capital charges againse Cleveland kidnapper Ariel Castro
- Cleveland kidnapper Castro takes LWOP+ plea deal sentence to avoid death penalty
Friday, July 26, 2013
Kansas Gov calling special legislative session to deal with Allenye problemsA helpful reader alerted me to this local Kansas article reporting on the latest ripple from the Supreme Court's work last month in Alleyne. The piece is headlined, "Brownback calls for special legislative session to address questions on ‘Hard 50’ law," and here are the details:
Kansas Gov. Sam Brownback has called for a special legislative session starting Sept. 3 to address legal questions about the state's so-called "Hard 50" sentencing law. State Attorney General Derek Schmidt had asked for a special session because of a recent U.S. Supreme Court ruling that struck down a similar federal sentencing law.
“The ‘Hard 50’ sentence is a vital public safety tool that has been in place for more than 10 years,” Brownback said in a statement released today. “The sudden absence of the ‘Hard 50’ sentence poses a real and present danger to the public safety of all Kansans.”
Republican leaders of the Kansas Senate quickly issued a statement supporting the call for a special session. “I appreciate the assessment of the situation by the Governor and the Attorney General, and support their decision,” Senate President Susan Wagle, a Wichita Republican said in the statement. “After learning about the circumstances of the pending cases, and recognizing the critical time element involved with the appeals process, it’s clear we must act. The Senate will respond quickly and efficiently to protect public safety.”
Under the Kansas statute, people convicted of premeditated murder can be sentenced to life without the possibility of parole for 50 years if the trial judge finds certain aggravating factors. Otherwise, those defendants are typically given a sentence of 25 years to life.
The U.S. Supreme Court, however, issued a ruling in June saying that when statutes like the Hard 50 law call for enhanced penalties, the facts that justify the more severe sentence must be decided by the jury, not a judge. Days after the Supreme Court issued that ruling, it remanded a Kansas case back to the state supreme court to be reconsidered....
“While returning to Topeka for a special session is often a last resort, crafting legislation to keep our constituents safe from violent offenders is the proper response to the Alleyne Decision," Senate Majority Leader Terry Bruce, a Hutchinson Republican, said, referring to the U.S. Supreme Court's ruling in Alleyne v. United States. "Legislative action should be taken in a reasonable period of time and in a bipartisan manner.”
During a news conference Thursday, Schmidt said there were potentially dozens of other cases in Kansas that could be affected by the ruling. One of those involved a murder-for-hire scheme in which the victim was shot execution-style in the back of the head in front of her child. It was a case of mistaken identity, Schmidt said, and the victim was not the intended target.
Saturday, July 13, 2013
Echoes of Alleyne showing something's the matter in Kansas "hard 50" SentencingThis new local article, headlined "Supreme Court ruling threatens to invalidate Kansas hard 50 sentences," reports on one of the potential state echoes of the Supreme Court's Sixth Amendment ruling in Allenye last month. Here are the essential details:
A U.S. Supreme Court decision that prompted the Kansas Attorney General’s Office to drop plans to seek a hard 50 sentence against convicted wife-killer Brett Seacat could invalidate the hard 50 sentence given to Scott Roeder, who was convicted of murdering abortion doctor George Tiller.
The ruling also may force prosecutors to abandon plans to seek hard 50 sentences in some other cases, including the case of a Wichita man who was convicted last week of stomping his girlfriend to death with steel-toed boots. It could prevent the state from seeking a hard 50 for a man convicted last month of strangling a Wichita woman in 2011 while on parole for murdering a woman in Lawrence more than two decades earlier.
District Attorney Marc Bennett said the ruling, known as the Alleyne decision, could have an impact on any hard 50 case in Kansas that is on appeal, and could change the way prosecutors deal with first-degree murder cases in the future. “Clearly it will be an issue that we will have to address,” he said.
Defense lawyer Richard Ney was more blunt in his assessment of the ruling. “The hard 50 is dead as far as it exists in Kansas right now,” he said. “For cases that are not final, and Roeder would be one of them, I think they’re certainly in question.”
If the state wants to keep its hard 50 sentencing law, Ney said, the Kansas Legislature will probably have to adopt a sentencing system that includes a separate penalty phase in any first-degree murder trial where prosecutors seek a 50-year minimum sentence.
When the state enacted a hard 40 sentencing law in 1990 – the precursor to today’s hard 50 law – it used such a system where the jury that found a defendant guilty of first-degree murder would sit at a separate penalty phase and determine whether to impose a hard 40 sentence. The state later turned the decision of whether to impose hard 50 sentences over to judges....
In releasing the Alleyne decision, the Supreme Court sent a similar case – Astorga v. Kansas – back to Leavenworth County District Court for resentencing. Kansas Attorney General Derek Schmidt cited both cases in his decision to abandon efforts to seek a hard 50 sentence in the Seacat case.
“Upon thorough review of the U.S. Supreme Court’s decision in Alleyne, the state does not believe the procedural and factual posture of this case allow for the application of (the hard 50 law) in its current form. Therefore, the state is no longer seeking the imposition of a mandatory term of imprisonment of 50 years,” he wrote in a court filing.
As it now stands, Kansas’ hard 50 law says a judge must weigh aggravating and mitigating factors before deciding whether to grant a prosecutor’s request to impose a hard 50 sentence. The law lists several aggravating factors that include a prior conviction for a crime that caused death or great bodily harm, the commission of an act that creates a great risk of death to more than one person, and the commission of a crime in an especially heinous, atrocious or cruel manner.
The law also lists mitigating factors that may include a defendant’s age, a defendant’s lack of criminal history and the fact that a defendant was a minor participant in the crime for which he or she was convicted.
If a judge rules that one or more aggravating factors exist, and decides that the existence of such factors is not outweighed by any mitigating circumstances, the law says the defendant shall be sentenced to life without parole for a minimum of 50 years.
Prior related post on Alleyne ruling:
- Per Justice Thomas in 5-4 SCOTUS split, Alleyne extends Sixth Amendment to findings triggering mandatory minimums
- First-cut reactions as to what is big, and not so big, about Alleyne's reversal of Harris
- Are 12 Alleyne GVRs (including one from Kansas) a sign of big Sixth Amendment things to come?
Thursday, May 23, 2013
NACDL rolls out state-by-state "excessive sentencing" proportionality litigation resource
I am extraordinarily proud and excited to report that, as detailed via a new NACDL news release, that the National Association of Criminal Defense Lawyers is now offering, "as a resource for its members and as a service to the public, a collection of individual downloadable documents that summarize for each U.S. state the key doctrines and leading court rulings setting forth constitutional and statutory limits on lengthy imprisonment terms and other extreme (non-capital) sentences."
This resource has been given the name Excessive Sentencing: NACDL’s Proportionality Litigation Project its main page can be accessed via this link. Here is a bit more from the NACDL press release about the resource (and also my role therein):
Development of this new resource was inspired in part by the Supreme Court’s recent landmark constitutional decisions in Graham v. Florida, 130 S. Ct. 2011 (May 17, 2010), and Miller v. Alabama, 132 S. Ct. 245 (June 25, 2012), which pronounced new Eighth Amendment limits on when and how states can impose life without parole prison terms on juvenile offenders. The state profiles and related materials provide a detailed snapshot of existing proportionality doctrines and jurisprudence as of fall 2012. They are intended as a resource for practitioners in all phases of the criminal justice system, for sentencing and appellate courts, for policymakers and advocates concerned with the high economic and human costs of excessively long terms of imprisonment, and for defendants facing or serving extreme prison terms.
The primary academic supervisor of this resource is Professor Douglas A. Berman of The Ohio State University Moritz College of Law.... Professor Berman intends to update these materials regularly as developments in the law warrant and new information becomes available.
On the project’s landing page –- which can be accessed here -- there is a free, nearly 90-minute sentencing skills webinar featuring Professor Berman and Stephen Hardwick, an assistant public defender in Columbus, Ohio....
In addition, the project landing page has this additional account of what this resource now provides and hopes to help achieve:
The state profiles and related materials, which were prepared by recent law school graduates under the supervision of Professor Douglas A. Berman, provide a detailed snapshot of existing proportionality doctrines and jurisprudence as of fall 2012. Unsurprisingly in the wake of Graham and Miller, there has been a significant increase in state-level litigation concerning lengthy prison terms, especially for juvenile offenders. The expectation is to have Professor Berman, in conjunction with the pro bono efforts other lawyers and aided especially by NACDL members and others who utilize this resource, revise and update these profiles regularly.
The profiles and charts are intended as a resource for practitioners in all phases of the criminal justice system, for sentencing and appellate courts, for policymakers and advocates concerned with the high economic and human costs of excessively long terms of imprisonment, and for defendants facing or serving extreme prison terms. The Supreme Court has repeatedly stressed that the Eighth Amendment’s “scope is not static [but] must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. 86, 101 (1958); state-level doctrinal and jurisprudential developments have thus always had heightened federal constitutional significance in this area of law. Moreover, state policy-makers and state jurists have long understood that the Eighth Amendment sets only a minimum constitutional floor limiting only the most extreme punishment policies and practices: state lawmakers and judges can and should feel not merely free, but institutionally obliged, to consider developing their own distinct legal limits on unduly harsh sentencing terms based on distinct state-level requirements and needs. The profiles posted here demonstrate that, even though there is some notable convergence in state-level proportionality doctrines, there are also some important variations and innovations concerning how states seek to protect its citizens from extreme or excessive criminal punishments.
I plan to discuss this web resource and the broader NACDL projectin a series of posts over the next few weeks and months. For now, I just hope everyone will take a look at what we have posted (and perhaps begin commenting on what other materials might be usefully assembled and linked in this space).
May 23, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Graham and Sullivan Eighth Amendment cases, Jackson and Miller Eighth Amendment cases, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10) | TrackBack
Tuesday, May 07, 2013
Corrupt state supreme court judge and sister facing state sentencing in PAAs reported in this local article, headlined "Former Pennsylvania Justice Orie Melvin, sister face sentencing today," a high-profile corruption case in the Keystone State has finally reached the sentencing stage. Here are the basics:
Former Pennsylvania Supreme Court Justice Joan Orie Melvin and her sister and former court aide Janine Orie will be sentenced today by Allegheny County Common Pleas Judge Lester Nauhaus.
Prosecutors, in briefs filed before the court last month, are seeking incarceration for Ms. Orie Melvin and for her sister, who were convicted in February of misusing state-paid employees in Ms. Orie Melvin's campaign for a seat on the high court in 2003 and 2009. The sisters were found guilty of theft of services, conspiracy and misapplication of government funds. Janine Orie was also convicted of tampering with evidence and solicitation.
In their briefs, Ms. Orie Melvin's defense attorneys asked for probation, citing her dedication to public service, charitable work and her devotion to her family and the hardship incarceration would bring upon her family, including her six children and elderly father.
The sisters were charged with misapplication of government funds, theft of services and conspiracy for using the justice's former Superior Court staff and the legislative staff of a third sister, former state Sen. Jane Orie, to run campaigns for the Supreme Court in 2003 and 2009. Among the allegations were that staffers wrote speeches, drove Ms. Orie Melvin to campaign events and worked the polls....
At the time of the verdict, Matt Mabon, the jury foreman, explained that the jury couldn't reach a decision on the official oppression count, which was connected to the employment of Lisa Sasinoski, chief law clerk for the justice who was a witness. Because there were competing versions of whether she was fired or resigned, jurors couldn't reach a decision, he said.
Ms. Orie Melvin voluntarily stopped hearing cases before the high court when she was indicted a year ago, just hours before the court issued an order suspending her to "preserve the integrity" of the system. That same day, the Pennsylvania Judicial Conduct Board issued a recommendation that she be suspended with pay pending resolution of the criminal case, but in August, the Court of Judicial Discipline ruled that Justice Orie Melvin should not be paid during her suspension. Her salary at the time was $195,309.
Justice Orie Melvin fought unsuccessfully to have the charges against her dismissed, claiming that the Supreme Court itself should have jurisdiction over the allegations and not the criminal courts. A month after the verdict, on March 25, Ms. Orie Melvin announced, in a letter to Gov. Tom Corbett, that she would resign May 1 "with deep regret and a broken heart."...
Jane Orie is serving a 21/2- to 10-year prison term for using her staff for her own and Ms. Orie Melvin's campaigns and for forging documents to cover it up. She was found guilty in March 2012 of 14 of 24 counts against her, including ethics violations, theft of services, tampering with evidence and forgery.
Assistant district attorney Lawrence Claus is seeking consecutive sentences of incarceration in the aggravated range for Ms. Orie Melvin. The standard range is probation to 30 months, versus 48 months in the aggravated range. For Janine Orie, the standard range is probation to 27 months and up to 45 months in the aggravated range.
UPDATE: I am very pleased to see from this local article, headlined "Orie Melvin must write apology letters to Pennsylvania judges on photos of herself," that the sentence for the former judge includes a serious shaming sanction. Here are the awesome basics, about which I will blog more in a future post:
Disgraced former Pennsylvania Supreme Court justice Joan Orie Melvin was sentenced today to house arrest followed by probation and ordered to send handwritten apologies on photographs of herself to every judge in the Commonwealth.
Allegheny County Court of Common Pleas Judge Lester Nauhaus sentenced Orie Melvin to three years' house arrest with two years' probation to follow.
A jury found Orie Melvin and her sister Janine Orie guilty on Feb. 21 of using judicial staff, as well as the staffers of another sister, former state Sen. Jane Orie, to work on the campaigns in 2003 and 2009 for the Pennsylvania high court.
Orie Melvin, 56, was found guilty on six of seven counts against her, including conspiracy, theft of services and misapplication of government funds. She resigned from the Supreme Court in March.
She must serve in a soup kitchen three times a week and can otherwise only leave her house for church.
Judge Nauhaus also ordered that an official county photographer take a photograph of Orie Melvin, on copies of which she must apologize to each of Pennsylvania's judges. She must pay for the cost. He ordered a deputy to handcuff her and the photo was taken of her in handcuffs.
Her sentence also includes $55,000 in fines, a prohibition on using the title "justice" during her term and handwriting apologies to former members of her campaign staff and that of her sister, former state Sen. Jane Orie, whom she made engage in illegal work.
May 7, 2013 in Celebrity sentencings, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Friday, April 26, 2013
Current NRA president vocally supporting (liberal? conservative?) mandatory minimum sentencing reform in OregonDavid Keene, a former chairman of the American Conservative Union who is now serving as president of the National Rifle Association, has this notable new commentary piece in the Salem Statesman Journal promoting sentencing reform in the Beaver State. Here are excerpts:
If you are an Oregon conservative, I hope you’re asking the same question the state’s bipartisan Commission on Public Safety asked: “Are taxpayers getting the most from the money we spend on public safety?” Oregon has been a leader in effective corrections policy and boasts one of the lowest recidivism rates in the nation.
But the state is trending in the wrong direction when it comes to corrections spending, and much of the growth is due to mandatory minimum sentences that violate conservative principles.
Oregon criminal justice agencies predict that the state’s prison population will grow significantly over the next 10 years, and that the growth will be composed mostly of nonviolent offenders. The expected inmate surge is projected to cost Oregon taxpayers $600 million, on top of the biennial corrections budget of $1.3 billion.
The time is ripe for comprehensive criminal justice reform — not only supported by Oregon conservatives, but led by Oregon conservatives.
We believe all government spending programs need to be put to the cost-benefit test, and criminal justice is no exception. Oregon has done a good job with this in the past but is slipping, by locking up more offenders who could be held accountable with shorter sentences followed by more effective, less expensive local supervision programs....
As conservatives, we also believe that a key to protecting our freedom is maintaining the separation of powers between the branches of government. Such protection is lost when so-called “mandatory minimum” sentences force the judicial branch to impose broad-brush responses to nuanced problems. Mandatory minimums were adopted in response to the abuses of a few judges decades ago, but have proven a blunt, costly and constitutionally problematic one-size-fits-all solution begging for reform.
The commission’s recommendations make modest prospective changes to mandatory minimums under Measures 11 and 57. These measures have given prosecutors unchecked power to determine sentences by way of charging decisions, regardless of the facts of the case, or the individual’s history and likelihood of re-offending.
The reform package now before the Legislature would restore the constitutional role of the courts for three of the 22 offenses covered by Measure 11. Judges could still impose the stiffest penalties where necessary, but would regain discretion in sentencing appropriate offenders to shorter prison terms or less expensive, more intensive community supervision.
These sensible reforms will restore some checks and balances between prosecutors and the courts, allow prison resources to be focused on serious violent offenders and let taxpayers know that their public safety dollars are being spent more wisely.
April 26, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (8) | TrackBack