Wednesday, October 02, 2013

Alabama rolls out new presumptive sentencing guidelines (which prosecutors mostly oppose)

ALSealWhile 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:

October 2, 2013 in Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (11) | TrackBack

Monday, September 16, 2013

Two new commentaries on California's enduring need for enduring sentencing and corrections reform

Commentators 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.

August 11, 2013 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, August 01, 2013

Cleveland kidnapper Castro gets LWOP sentence plus 1000 years as plea deal provided

I 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:

August 1, 2013 in Offense Characteristics, State Sentencing Guidelines, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, July 26, 2013

Kansas Gov calling special legislative session to deal with Allenye problems

A 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.

July 26, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, July 13, 2013

Echoes of Alleyne showing something's the matter in Kansas "hard 50" Sentencing

This 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.

The folks behind the Kansas Defenders blog have been all over the impact of Alleyne in the Sunflower State via a number of notable new posts here and here and here.

Prior related post on Alleyne ruling:

July 13, 2013 in Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, May 23, 2013

NACDL rolls out state-by-state "excessive sentencing" proportionality litigation resource

ImagesCA6ZGXG7I 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 PA

As 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.

Related post:

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 Oregon

David 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

Monday, April 22, 2013

Law and Contemporary Problems devotes March 2013 issue to sentencing reform around the world

Lcp1I am so very pleased to see that available on line here is the full March 2013 issue of the journal Law and Contemporary Problems, which is devoted to providing a "Global Perspective on Sentencing Reforms." The issue has a dozen articles, some of which are focused on state sentencing reforms, some of which are focused on federal sentencing reforms, and some of which are focused on sentencing reforms in the UK and Germany and elsewhere.  And all of the article look like must reads for sentencing geeks like me.  The Foreward to the Issue is authored by by Professor Oren Gazal-Ayal of the University of Haifa, and here are excerpts from the start and end of this introduction:

The articles published in this issue of Law and Contemporary Problems examine the effects of different sentencing reforms across the world.  While the effects of sentencing reforms in the United States have been studied extensively, this is the first symposium that examines the effects of sentencing guidelines and alternative policies in a number of western legal systems from a comparative perspective. This issue focuses on how different sentencing policies affect prison population rates, sentence disparity, and the balance of power between the judiciary and prosecutors, while also assessing how sentencing policies respond to temporary punitive surges and moral panics.

The effects of sentencing guidelines are highly contested and debated among scholars. As a result, there are a number of outstanding questions regarding the actual effects of such guidelines.  For instance, do sentencing guidelines transfer sentencing powers from the judiciary to prosecutors?  Should the guidelines bear some of the responsibility for the surge in prison population in the United States?  Has the lack of guidelines helped Germany constrain its prison population?  Do sentencing guidelines help mitigate the effects of punitive surge, or, on the other hand, do they facilitate the punitive effect of moral panics? Do guidelines effect racial and ethnic disparity in sentencing?  And how should guidelines be structured?...

The articles in this issue are the out come of a conference on sentencing reform that was held at the University of Haifa, Faculty of Law in February 2011.  The conference and this issue address the effects of sentencing reforms from a global perspective, relying mainly on empirical research.  The result is, as in most such attempts, incomplete. But we did come closer to answering some of the pressing questions — though only to find out that many new questions hide behind the answers to the old ones.  It seems that sentencing, a topic that has been the focus of academic debate for centuries, will continue to attract this much needed attention for centuries to come.

April 22, 2013 in Federal Sentencing Guidelines, Recommended reading, Sentencing around the world, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Thursday, April 18, 2013

"Justice Reinvestment in Action: The Delaware Model"

The title of this post is the title of this recently released policy brief from the Vera Institute of Justice.  This posting by Alison Shames of Vera provides a preview of the context and content of this report, and here are excerpts:

To date, more than a dozen states have participated in the Justice Reinvestment Initiative and worked with the Vera Institute of Justice, the Council of State Governments, or The Pew Charitable Trusts to analyze their state-specific data, identify the drivers of their corrections populations, and develop policies that aim to reduce spending and generate savings.  Once the policies are passed into law, these jurisdictions continue to receive technical assistance to help with implementation and ensure that the changes and investments achieve their projected outcomes.

What this means in practice is described in Vera’s new report, Justice Reinvestment in Action: The Delaware Model.  In 2012, after a year of analysis and consensus-building, Delaware Governor Jack Markell signed SB 226, introducing a sea change to the way the state justice agencies conduct business.  At every step in the process — pretrial, sentencing, prison, and supervision — SB 226 requires enhanced decision making based not only on professional judgment but also data analysis and empirically based risk and needs assessment instruments.  If implemented correctly, up to $27.3 million could be available for reinvestment over the next five years.

Continued and increased support for the Justice Reinvestment Initiative — in the form of technical assistance and seed funding — is critical to making these methods available to additional jurisdictions and ensuring that the states realize their projected savings and enhance public safety.  The future of the Justice Reinvestment Initiative looks bright, with President Obama including $85 million for this effort in his proposed 2014 budget, an increase of $79 million over last year's appropriation.

Implementing evidence-based practices and enabling justice agencies to integrate data analysis into their operations in an ongoing and sustainable way is hard work that takes time, patience, up-front investment, and strong leadership.  The Justice Reinvestment Initiative builds and develops the leadership and contributes to the initial investment. Delaware is just one of a dozen success stories.  The hard work continues.

Some older and more recent related posts:

April 18, 2013 in Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, March 28, 2013

Sixth Circuit panel grants habeas relief to Tennessee defendant sentenced in violation of Blakely

Sadly, I no longer get ample opportunities to blog about Blakely Sixth Amendment sentencing issue these days -- though I suppose this could change if (and when?) the Supreme Court give these issues a new boost via a big ruling in Alleyne in the near future.  Joyfully, this morning brings a little Blakely-era nostalgia via the Sixth Circuit's habeas grant in Lovins v. Parker, No. 11-5545 (6th Cir. Mar. 28, 2013) (available here).   This extended decision gets started this way:

After a Tennessee state court jury convicted petitioner Derry Lovins of second-degree murder, the state trial court judge made additional factual findings and enhanced Lovins’s sentence from twenty to twenty-three years based on those findings.  In this petition for a writ of habeas corpus under 28 U.S.C. § 2254, Lovins raises various claims of trial error and argues that the threeyear sentence enhancement was unconstitutional under the rule of Blakely v. Washington, 542 U.S. 296 (2004), because the sentence was enhanced based on facts that were not found by a jury.  The history of Lovins’s requests for relief in state court is byzantine, but the legal principles are not.  Lovins’s direct appeal was not final until almost three years after the Blakely decision, and therefore Blakely applies to his case under the clearly-established retroactivity rules of Griffith v. Kentucky, 479 U.S. 314 (1987), and Teague v. Lane, 489 U.S. 288 (1989).  For this reason, and because the procedural default doctrine does not bar our review of the merits of Lovins’s Blakely claim, we REVERSE the district court’s denial of relief, and we conditionally GRANT a writ of habeas corpus on the Blakely sentencing claim only.  We AFFIRM the district court’s denial of relief on all of Lovins’s other claims.

March 28, 2013 in Blakely in Appellate Courts, Blakely in the States, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, March 26, 2013

New York Times editorial urges "Shrinking Prisons, Saving Billions"

While on the road, I missed this notable New York Times editorial from this past weekend.  Here are excerpts:

The mandatory sentencing craze that gripped the country four decades ago drove up the state prison population sevenfold — from under 200,000 in the early 1970s to about 1.4 million today — and pushed costs beyond $50 billion a year.  Until recently, it seemed that the numbers would keep growing. But thanks to reforms in more than half the states, the prison census has edged down slightly — by just under 2 percent — since 2009.  A new analysis by the Pew Charitable Trusts shows that the decline would have been considerably larger had the other states not been pulling in the opposite direction.

Over the last five years, 29 states have managed to cut their imprisonment rates, 10 of them by double-digit percentages.  California, which has been ordered by the Supreme Court to ease extreme prison crowding, led the way with a 17 percent drop, mainly by reducing parole and probation revocations and shifting custody of low-level offenders to counties.  Other states reduced prison terms for low-level offenses; diverted some offenders to community supervision; and strengthened parole programs, so that fewer offenders landed back in jail for technical violations like missed appointments or failed drug tests.

Even law-and-order states like Texas, which cut its imprisonment rate by 7 percent, have discovered that they can shrink the prison population without threatening public safety. Investing heavily in drug treatment and community supervision, Texas has avoided nearly $2 billion in spending on new prisons, while the crime rate has dropped to levels unseen since the 1960s.  But even as the national prison population has declined, 20 other states — including Arizona, Arkansas, Pennsylvania and West Virginia — keep sending more people to prison than need to be there....

States that lag in reducing their prison populations should swiftly embrace these kinds of reforms.

March 26, 2013 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (4) | TrackBack

Monday, March 25, 2013

New report assails Massachusetts sentencing and corrections policies and practices

CostofPrisonJPGThumb.ashxThis lengthy article from the Boston Globe discusses a big new forthcoming report highlighing failings in the sentencing and punishment systems in Massachusetts.  The article is headlined "Report slams state for lack of corrections reform: Crime down, prison costs up as study urges shorter sentences, focus on parole," and it gets started this way:

Despite steeply declining violent crime rates, the percentage of Massachusetts residents behind bars has tripled since the early 1980s, as the Commonwealth has clung to tough-on-crime laws that many other states have abandoned as ineffective, according to a study being released this week.

The 40-page report — endorsed by a coalition of prominent former prosecutors, defense attorneys, and justice officials — slams the state for focusing too much on prolonged incarceration, through measures such as mandatory minimum sentences, and for paying too little attention to successfully integrating prisoners back into society.

This is not just a social justice issue, the coalition argues, but a serious budgetary problem. The report estimated that policies that have led to more Draconian sentences and fewer paroles have extended prison stays by a third since 1990, costing the state an extra $150 million a year.

“It’s an odd set of numbers: crime going down while prison populations are still going up,” said Greg Torres, president of MassINC, the nonpartisan research group that commissioned the study. “What the report shows is that it’s a problem with the corrections systems front and back doors — sentencing and release.”

The study says Massachusetts, with its rising prison population, is heading in the opposite direction of several more traditionally law-and-order states — many of which have changed sentencing requirements, closed prisons, and cut costs. While other states have seen drops in incarceration in conjunction with falling crime rates, Massachusetts has seen the opposite.

In addition to the longer prison stays, Torres said, a reduction in post-release supervision has left Massachusetts with a recidivism rate higher than many other states, which in turn has sent more offenders back to prison. New data in the report show that six of every 10 inmates released from state and county prisons commit new crimes within six years. If the recidivism rate was cut by 5 percent, the report says, Massachusetts could cut $150 million from its more than $1 billion corrections budget.

Released in partnership with the newly formed grouping of law-enforcement officials, which is called Criminal Justice Reform Coalition, and Community Resources for Justice, a social justice nonprofit group, the report issues include a moratorium on the expansion of state prisons, reexamining sentencing guidelines, and expanding prerelease programs. “In the last 10 years we’ve learned a lot about what doesn’t work,” said John Larivee, chief executive of Community Resources for Justice and coauthor of the report.

One key to changing the state’s corrections system, the report’s authors stress, is building bipartisan consensus so neither side can later be accused of being soft on crime. “There’s more bipartisan common ground than you might expect,” said Wayne Budd, a Republican who is one of the reform coalition’s three co-chairmen.

In addition to Budd, the coalition is led by Kevin M. Burke, former state secretary of public safety, and Max D. Stern, president of the Massachusetts Association of Criminal Defense Lawyers.

UPDATE:  The full 40-page report, which is titled "Crime, Cost, and Consequences: Is it Time to Get Smart on Crime?," is now available via this link.

March 25, 2013 in Data on sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, March 12, 2013

Notable debate in Wisconsin over new state child porn sentencing law

Regular readers are quite familiar with (and perhaps even tired of) the long-running debates over federal child pornography sentencing laws. But, as detailed in this local article from Wisconsin, headlined "New law limits judges' power in child pornography cases," similar issues and debates arise in states sentencing systems, too.  Here are excerpts from the article, which strikes all the usual themes concerning the impact of mandatory minimum sentencing provisions:

A new law intended to toughen punishment for those convicted of viewing child pornography is drawing criticism from court officials. 

In April 2012, state lawmakers passed into law a mandatory, minimum three-year prison sentence for the felony offense.  Under a clause in the old law, judges had the discretion to order lesser penalties depending on the circumstances of the case.

Rep. Mark Honadel, R-South Milwaukee, who sponsored the mandatory penalty, testified that judges were letting too many offenders stay out of prison. “Sentences of less than 3 years were meant to be issued sparingly but became the standard,” Honadel said.

State Rep. Jeremy Thiesfeldt, R-Fond du Lac, said the law was conceived as a way to provide consistent sentences for all offenders who commit the same crime.  “Prior to this, sentences were all over the map. In a judicial sense, this probably wasn’t the best way to operate,” Thiesfeldt said. “Anytime you can establish standards of fairness, that’s a good thing.”...

Fond du Lac County Circuit Court Judge Peter Grimm, who has worn the hat of a public defender and district attorney before his election to the bench 22 years ago, says judges need discretion in sentencing to ensure the punishment fits the circumstances of the crime and the criminal.  “These mandatory minimum sentences fly in the face of current judicial training in which judges are trained to use evidence-based sentences designed to let judges make the best decision based on the facts of the case,” said Grimm. “Judges should not be locked into a minimum sentence because the legislature wants to be tough on crime.”

Dodge County District Attorney Kurt Klomberg has mixed feelings concerning the new law. “The law does take discretion away from the judges.  The judge is no longer able to go below the minimum (sentence) even in the face of strong mitigating evidence,” Klomberg said.  “The prosecutor now has greater power in the sentencing process as the decision on the charge will be a decision on the minimum allowable sentence after conviction.”

Klomberg also recognizes that the new law could impact settlement in cases involving child pornography.   “The defendants in these cases are often willing to plead to the charges in hopes of convincing the judge to go below the minimum,” Klomberg said.  “Under the new law, there is no possibility, and it may result in more trials.”

Defense attorney and former Fond du Lac County District Attorney Michael O’Rourke disagrees with a one-size-fits-all approach.   “Each case and each defendant are different and judges should have the ability to fashion a sentence that is good for both the community and aids defendants in rehabilitation,” O’Rourke said

The former prosecutor says judges need discretion in sentencing to ensure the penalty doesn’t outweigh the crime.   “The retired 63-year-old with no previous record who went to an adult porn site and was browsing and clicked onto a site that includes child pornography and then looks at a couple of pictures is different than the person who may already have a record, or who is actively seeking child porn,” O’Rourke said.  “Some peer-to-peer sites will download thousands of images in seconds onto a computer and the individual has seen none of them.  A judge should have the discretion to consider that.”

Wisconsin’s new child pornography law offers one exception to the minimum sentence, Thiesfeldt said.  Several cases involving teens trading inappropriate pictures by cell phone prompted lawmakers to include a clause in which a judge can issue lesser penalties if the offender is no more than four years older than the child depicted.

March 12, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sex Offender Sentencing, State Sentencing Guidelines | Permalink | Comments (5) | TrackBack

Monday, March 04, 2013

A notable first echo from Ohio's notable new early release law

This local AP article, headlined "Five should be freed, state prisons chief says," reaffirms my belief that Ohio is now a dynamic and important "state to watch" concerning modern sentencing law and practices. Here are the interesting details from this latest story in the important Buckeye chapter of modern sentencing reform:

Ohio’s prison chief has recommended the release of five inmates who have served 80 percent of their time. The recommendations, if approved, would mark the first use of a 2011 law meant to help reduce the state’s inmate population and save the state money.

Director Gary Mohr of the Department of Rehabilitation and Correction cited several reasons, including good behavior, for his recommendations in letters to judges, who have the final say. He also considered information from prison employees who are go-betweens with the prisons, the courts and the inmates.

The five inmates — two women and three men — are serving time mostly for low-level felonies, although one was convicted of aggravated vehicular homicide.

Prisons spokeswoman JoEllen Smith said the 80 percent release option encourages inmates to act responsibly in prison “and is significant in our effort to better communicate with courts and assist the eligible, suitable offenders in having a successful transition back into our communities.”

The 2011 law aims to save the state millions of dollars by shrinking the number of inmates and reducing the number of offenders who might return to prison as repeat offenders. By several measures, the law and other efforts are working.

Ohio’s prison population remains under 50,000 inmates, a level not seen since 2007. Also, the state reported on Feb. 22 that the number of inmates returning to Ohio prisons upon release has hit a new low, a trend officials attribute to a focus on keeping inmates in the community and the involvement of groups that work with inmates before their release.

Other factors Mohr considered in making his recommendations included little or no rule-breaking during incarceration; a history of participating in prison programs; and development of a plan for dealing with the release.

Inmate Mary Clinkscales of Summit County, sentenced to a seven-year prison term in 2007 for possession of drugs, is a prime candidate for release because of her activities in prison, according to a Feb. 15 letter from a go-between, called a justice reinvestment officer.

Clinkscales had just one rule infraction while imprisoned — wearing shorts that were not part of her state-issued clothing — said Suzanne Brooks, the agency’s Cleveland-area justice reinvestment officer.

Clinkscales has attended literacy, anger-management and family-values skills classes, worked on community service projects making hats and scarves and is not a gang member, Brooks said. All these factors, plus no previous prison sentence, make her a suitable candidate for release, Brooks said.

I am tempted at this point to jokingly suggest that it would make sense to expect that someone named "Clickscales" would at some point get sent to prison for a drug offense. But this new story about prison officials actually actively advocating for the early release of a few prisoners is too serious and important to make the basis of jokes about surnames. And speaking of serious and important, the five prisoners likely to get released first via this Ohio early release program ought to seriously understand how very important it will be for other prisoners and so many others throughout Ohio for them to fulfil the faith that Ohio's prison chief has in them.

There are lots of potential reactions and commentary justified by this story and the operationalization of the 2011 Ohio law meant to help reduce the state's inmate population and save the state money. For now, I want to focus on an important political reality in this Ohio "smart on crime" development: both houses of the Ohio General Assembly and the executive branch of Ohio were all in firm Republican control when Ohio enacted the broad-based sentencing reform that is now enabling at least five offenders to likely obtain early release from their prison sentences. For this reason (and others), I think prison reform is right now much better understood, at least at the state level, as a matter of avoiding the (budget) red rather than a matter of political debate among the blue and red sides of the aisle.

March 4, 2013 in 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 (5) | TrackBack

Thursday, February 28, 2013

You be the prosecutor: what state sentence should be sought for Joan Orie Melvin and her sister?

OriesRegular readers know that, often on the eve of a high-profile or unique sentencing proceeding, I urge folks to imagine being the judge and to propose a just and effective sentence for the defendant.  (See, e.g., prior "you be the judge" posts involving a rouge federal judge, a Ponzi schemer, the "Spam King", and an NBA star.)   Earlier this month, however, I generated a notable sentencing debate by changing the script via this post in which I encouraged folks to imagine being a federal prosecutor tasked with recommending a federal sentence for Jesse Jackson Jr. and his wife after it was clear that they intend to plead guilty to political corruption charges stemming from their misuse of campaign finance monies.  (See "You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?".)

As the title of this post reveals, I think it valuable to encourage readers again to think as a prosecutor about sentencing recommendations for political corruption.  But, as explained via this local story, "Judge sets May 7 sentencing for Joan Orie Melvin," the high-profile upcoming sentencing I have in mind is in state court and concerns a prominent state jurist and her sister after a trial conviction on multiple charges:

Allegheny County Judge Lester Nauhaus has scheduled suspended Supreme Court Justice Joan Orie Melvin's sentencing for May 7, the judge's staff said Wednesday.

A jury on Feb. 21 found Melvin, 56, of Marshall guilty on six criminal charges dealing with her misuse of state-paid employees to campaign for a seat on the high court in 2003 and 2009. The jury deadlocked on a seventh charge of official oppression.

The jury also convicted her sister and former staffer, Janine Orie, 58, of McCandless on six related charges.  Information on her sentencing date wasn't available.  A third sister, former state Sen. Jane Orie, 51, of McCandless is serving 2 1⁄2 years to 10 years in state prison on similar charges.

Obviously, the exact specifics of the crimes and the political positions of Jesse Jackson Jr. and Joan Orie Melvin are quite different.  Nevertheless, the underlying criminal behavior is arguably similar, as is the basic background of the offenders in relevant respects (e.g., both convicted defendants came from prominent political families, had a record of electorial success, and have considerable parental responsibilities).  Of course, Jackson Jr. and his wife are due to be sentenced in the federal no-parole system in which judges must impose exact sentences subject only to a 15% reduction for good prison behavior, whereas Melvin and her sister are to be sentenced in the Pennsylvania with-parole system in which judges general impose sentences in term of broad ranges.  Further, the Jacksons pleaded guilty and have expressed remorse, whereas Melvin and his sister both execised their trial rights and were found guilty on nearly all charges by a jury.

Differencea aside, I am eager to hear what readers think state prosecutors ought to be recommending as a sentence for Joan Orie Melvin and her sister.  Do you think they merit a longer or shorter sentence that what the Jacksons are facing?  Do you think the fact that state sentencing in Pennsylvania involves possibility of parole should lead to state prosecutor to urge for a much longer sentence in the Melvin case than federal prosecutors are urging in the Jackson case?  Do you disagree with my general notion that these crimes are in some ways comparable given that they were prosecuted in different jurisdictions (even though, I think, the feds could have prosecuted both cases)?

I raise these points not only because I see high-profile, white-collar sentences as provide a great setting for debating sentencing issues, but also because I think efforts to compare the sentencing treatment of seemingly similar defendants can often distract from the task of seeking to impose the most just and effective sentence for a singular defendant.  Ergo my interest in reader views on both the upcoming sentencing in this high-profile state political corruption case and how it should be compared to the upcoming sentencing of the Jacksons in federal court.

Recent related posts:

February 28, 2013 in Celebrity sentencings, Purposes of Punishment and Sentencing, Race, Class, and Gender, State Sentencing Guidelines, White-collar sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Saturday, February 16, 2013

Missouri dealing with pipeline sentencing issues after state changes to crack law

Federal sentencing practioners are well aware of the multi-year legal debate over the application of the new crack sentencing rules in the Fair Sentencing Act to pending cases.  That legal debate culminated in the Supreme Court's Dorsey ruling last tear, and lower federal courts are still sorting through the consequences.  Now I see from this local article, headlined "Crack cocaine sentencing law at crossroads in St. Louis case," that the Missouri now has the same kind of issue percolating as a matter of state sentencing law. Here is how this lengthy piece get started:

Two grams of crack cocaine could cost Jackie Murphy a lot more time in prison than many other defendants with identical drug cases awaiting trial.  That’s because Murphy, of St. Louis, was charged before the Missouri legislature acted last summer to bring the penalties for possessing crack cocaine more in line with those for possessing powder cocaine.

St. Louis Circuit Attorney Jennifer Joyce’s office has taken the stance that the new legislation was not intended to apply to cases that were pending at the time — only to charges going forward.  That means that Murphy, if convicted, could face five to 15 years in prison for his alleged possession in January 2009 of two to eight grams of crack cocaine, under the Class B felony of trafficking.  Someone accused of the same conduct after August 2012 would face far less: one day to seven years for the lesser charge of possession, a Class C felony.

It’s a dichotomy that Murphy’s public defender, Richard Kroeger, is calling “utterly wrong” in a motion arguing for a dismissal of the charges.  He’s asking St. Louis Circuit Judge John Riley to follow the reasoning of the U.S. Supreme Court, which in June settled the same debate on the federal level.  It was about two Illinois men whose cases were charged but not yet adjudicated when the Fair Sentencing Act of 2010 was enacted.  The high court said the new law did apply to federal cases in the “pipeline.”

Joyce’s office opposes the motion, arguing that state law is clear and that the federal cases are a different matter.  The office declined to make anyone available this week to answer questions about it.  Riley is expected to issue a ruling as early as next week. 

Those who advocated for the legislation here are watching carefully, saying this could be the test case for how the new law is applied across the state. It was unclear how many pending cases might be affected, but lawyers said “a number” were on hold pending the outcome.

Under the old Missouri law, trafficking more than 150 grams but less than 450 grams of powder cocaine was treated the same as trafficking at least two grams but less than eight grams of crack.

According to a 2011 report from the Sentencing Project, a nonprofit advocate on criminal justice policies, Missouri’s 75-to-1 ratio for weight-based penalties on crack versus powder cocaine was the highest disparity in the nation.  It was adopted in 1989, according to the report, after a significant increase in cocaine-related deaths and at the tail end of a nationwide crack epidemic.  The old federal law had a 100-to-1 disparity.  Illinois, with no difference, was not mentioned in the report.

The Washington-based organization, and other advocates for equalizing crack and powder cocaine sentencing, argue that the old laws in Missouri and elsewhere are discriminatory because the heaviest penalties fell on minority and poor offenders, who have tended to choose crack.  And in the last decade or so, lawmakers have begun to agree. Missouri is one of five states, among 13 with disparities, that have since moved either to close the gap or eliminate it, according to the organization.

Nicole Porter, director of advocacy for the Sentencing Project, said she was not aware of any legislation that included provisions to be applied retroactively, or specified whether it would apply to pending cases.  Silence on the issue in the 2010 federal revision produced two years of uncertainty, until the U.S. Supreme Court issued its ruling in the consolidated cases of Dorsey v. United States and Hill v. United States.  Porter added that Murphy’s case was the first she’d heard of on the state level that asks the courts how the pipeline cases should be handled. “That litigation that is going on in Missouri is really new territory,” she said.

February 16, 2013 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, January 29, 2013

New Sentencing Project report on 2012 state statutory sentencing developments

I just received an e-mail promoting a notable new report just released by The Sentencing Project.  Here is the full text of the e-mail, signed by Marc Mauer, which includes a link to the report:

I am pleased to share with you a new report from The Sentencing Project, The State of Sentencing 2012: Developments in Policy and Practice, by Nicole D. Porter.  The report highlights reforms in 24 states that demonstrate a continued trend to reform sentencing policies and scale back the use of imprisonment without compromising public safety.  The report provides an overview of recent policy reforms in the areas of sentencing, probation and parole, collateral consequences, and juvenile justice.  Highlights include:

  • Mandatory minimums:  Seven states — Alabama, California, Missouri, Massachusetts, Kanas, Louisiana, and Pennsylvania — revised mandatory penalties for certain offenses,  including crack cocaine offenses and drug offense enhancements.
  • Death penalty: Connecticut abolished the death penalty, becoming the 17th state to do so.
  • Parole and probation reforms:  Seven states — Colorado, Delaware, Georgia, Hawaii, Louisiana, Missouri, and Pennsylvania — expanded the use of earned time for eligible prisoners and limited the use of incarceration for probation and parole violations.
  • Juvenile life without parole:  Three states — California, Louisiana, and Pennsylvania — authorized sentencing relief for certain individuals sentenced to juvenile life without parole.
I hope you find this publication useful in your work.  The full report, which includes a comprehensive chart on criminal justice reform legislation, details on sentencing, probation and parole, collateral consequences of conviction, juvenile justice and policy recommendations, can be found online here.  I’d encourage you to be in touch with Nicole D. Porter, Director of Advocacy, at nporter@sentencingproject.org to discuss how we can support your efforts in the area of state policy reform.

January 29, 2013 in Data on sentencing, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, January 23, 2013

More notable talk of more notable sentencing reforms (and a sentencing commission) in Texas

For many years and for many reasons, Texas has been among the most interesting and dynamic modern sentencing reform states.  And this new article from the Austin American-Statesman, headlined "Prison reform outlook improves with business group’s involvement," details why the past, present and future of sentencing in the Lone Star State merits close attention from all sentencing fans. Here are snippets from this new article:

Now, with an influential business lobby group and a leading conservative organization leading the charge, some legislative leaders are wondering whether this year’s 140 days of lawmaking could rival the 2007 session.  That year, lawmakers approved a historic $240 million initiative to provide addiction treatment and rehabilitation programs for convicts rather than building new prisons, a gamble that has since paid off — and become a national model.

This year, just two weeks into the legislative session, there are active discussions about expanding a variety of community-based corrections programs with state funds, changing state laws to rehabilitate low-level drug offenders in programs rather than in expensive state prisons, and even to ease laws that limit ex-convicts’ employment.

“The Legislature this year has an opportunity to take the next step,” said Marc Levin, director of the Center for Effective Justice at the conservative Texas Public Policy Foundation.  Levin helped bring in the support of the Texas Association of Business to push the smarter-on-crime agenda.   “The current system is a drag on our vitality as a state. The more people we can get into less costly treatment and rehabilitation programs that are successful, the better off we’ll be,” he said.

Bill Hammond, a former legislator who is president of the Texas Association of Business, agrees: “The current system costs too much. We’re looking at this from a business standpoint, that some changes are good public policy.”  Even state Sen. John Whitmire, a Houston Democrat who is an architect of many of the previous reforms, says he is hopeful that meaningful reforms could be in the offing, thanks to an unexpected new ally....

Proposals sparking the most discussion so far include:

• Allowing more low-level offenders caught with small amounts of certain drugs to be sentenced to local rehabilitation and treatment programs instead of prison, and letting shoplifters and other petty criminals serve their sentences under community-based supervision. ...

• Making prostitution a misdemeanor offense, rather than a low-level felony. The change could eventually remove several hundred women from state lockups and place them in local rehab programs that have been highly successful elsewhere. The difference in cost: $15,500 a year for a state cell vs. $4,300 for a bunk in a community program.

• Creating a new commission of judges, prosecutors and other officials to review sentencing practices across the state.  The panel was recommended by a recent government-efficiency report by the Legislature Budget Board.  If adopted, it would be the first time the state’s criminal laws have been reviewed for streamlining since 1993....

• Allowing dozens of terminally ill and bedridden offenders to be more easily paroled, a move that could save the state millions of dollars in prison medical costs.  At $700 million a year, the medical tab is one of the fastest-growing items in the state budget. The 10 sickest convicts in 2011 cost taxpayers nearly $2 million....

Crime victims and police groups that have campaigned to increase criminal penalties say they will be watching for any changes that might be too soft on crime.  But some acknowledge that discussion of successful, less costly alternatives to prison is timely. “As long as public safety remains the most important priority, I’m sure there’s room for improvement,” said Kat Peterson, a Dallas resident who been a frequent fixture at legislative hearings over the past decade — both as a onetime victim of violent crime and an advocate for her cousin who is serving a long sentence in a state prison.  “Even a good system can be reformed to make it better.”

I often look to Grits for Breakfast when I want to know more about the latest comingsand goings on Texas criminal justice issues, and Grits had had these recent notable posts on this front:

January 23, 2013 in Criminal Sentences Alternatives, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack