Thursday, September 27, 2007
New NJ report on state sentencing
This afternoon I received an e-mail reporting the release of a new report from New Jersey (which can be downloaded below). Here are the basics from the e-mail:
The New Jersey Commission to Review Criminal Sentencing today issued the first comprehensive and independent examination of legislative changes relevant to sentencing of adult criminal offenders since the enactment of the Code of Criminal Justice in 1979.
Specifically, the report explains the sentencing system established by Legislature in 1979 as part of the then-newly enacted Code. In addition, the report discusses how subsequent and numerous statutory changes to the Code during the intervening 28 years have fundamentally altered that scheme in terms of both the amount of punishment authorized and the process by which sentences are imposed.
Thursday, September 06, 2007
Editorial spotlights the modern politics of sentencing
This morning's Detroit Free Press has this effective editorial, entitled "The politics of fear vs. sentencing reform." Here are snippets:
After Lansing police arrested state prison parolee Matthew Macon last week as a suspect in the murders of five women, state Sen. Alan Cropsey, R-DeWitt, promptly pronounced overdue sentencing reforms dead. Like most Republicans, however, Cropsey had already opposed sentencing reforms that would save the state a much needed $100 million by diverting some minor offenders from prison to community corrections programs. So Cropsey's remarks were as predictable as they were off point. He joins a long line of politicians who have used fear instead of reason to exploit a handful of high-profile cases to justify Michigan's unreasonably high incarceration rates.
The result has been enormous increases in prison populations and costs, with little or no effect on public safety. In Michigan today, one in three state civil service employees works for the Department of Corrections; in 1980, one in 20 did. Michigan spends nearly $2 billion a year on Corrections -- more than it spends on higher education. It incarcerates at a rate of 40% higher than other Great Lake states, which have lower crime rates....
To be sure, reforms in Michigan's sentencing polices ought to be subject to tough questions, but exploiting a tragedy to silence a very necessary debate will bankrupt the state while doing nothing to further public safety.
Saturday, September 01, 2007
Connecticut Governor appoints sentencing and parole task force
As detailed in this New Haven Register article, Connecticut Governor M. Jodi Rell has created a Sentencing and Parole Review Task Force "to review state charging, sentencing and parole procedures in the wake of the July triple-homicide in Cheshire."
I am impressed to see this sort of sound and sensible reaction to a terrible crime (instead of, say, knee-jerk legislation to increase sentence lengths). But I am disappointed to see that, as detailed here, the new 20-member task force does not appear to include any professors with expertise in sentencing law and policy.
Nebraska high court rejects effort to pass sentencing buck
As detailed in this AP story and this effective news analysis, on Nebraska Supreme Court yesterday declared that the state legislature had violated the state constitution "when they enacted a plan this year intended to have the high court adopt sentencing guidelines aimed mostly at drug offenders." The ruling came in In Re Petition of Nebraska Community Corrections Council, 274 Neb. 225 (Aug. 31, 2007) (available here). Here is how the opinion begins:
The Legislature has mandated by statute that we promulgate by court rule sentencing guidelines for certain offenses. Under the guidelines, courts must consider community correctional programs and facilities in sentencing offenders. In February 2007, the legislatively created Community Corrections Council petitioned this court to adopt its proposed guidelines. We invited the public to comment on the proposed guidelines. Several members of the judiciary raised concerns related to separation of powers.
We conducted a hearing in April. We agree that the Legislature’s mandate violates the Nebraska Constitution’s separation of powers clause. We deny the Community Corrections Council’s petition, because we conclude that the Legislature cannot delegate to the judicial branch its constitutional power to enact the laws of this state.
Thursday, August 09, 2007
Economic realities of state sentencing reform
This commentary from Michigan, entitled "Budget pitting prisons against our universities," spotlights some of the state economic realities that often are the catalyst for new sentencing reforms. Here is how it begins:
Michigan is at a crossroads and facing a critical choice about its future direction, perhaps nothing defines the choice as clearly and fundamentally as the coming budget struggle between prisons and universities. Yes, there are many funding priorities and many worthy programs and services facing stress because of the state's projected deficit for the 2008 fiscal year, which could run as high as $1.8 billion, according to the Senate Fiscal Office.
But shaping choices between Corrections (the backbone of public safety) and universities (the gateway to the knowledge economy) is symbolic of the struggle that faces Michiganians. It is not just a struggle for today or even for 2008, because the actions taken now will set the tone for what type of state Michigan wants to be and what future those who live here can expect.
Wednesday, August 08, 2007
A quick NASC wrap
Mike Connelly is so pooped from the terrific NASC conference he helped organize that we will have to wait a bit for his wrap-up. In the meantime, this article from The Oklahoman provides some highlights.
Some recent related posts (with strong comments):
Tuesday, July 24, 2007
Controversy over proposed Michigan sentencing reforms
This local article provides an effective review of the controversies brewing over Michigan Governor Jennifer Granholm's suggested changes to the state's sentencing laws. Here are excerpts:
Public safety is not state government leaders' priority. That is the reaction Livingston County Sheriff Bob Bezotte had upon learning about Gov. Jennifer Granholm's proposed reforms to the state's sentencing laws. "The state is trying to fix its problem by dumping (them) on the county," Bezotte said. "As far as I'm concerned, the state government is shirking its responsibility. Public safety is not one of their priorities."
The Granholm administration is pushing to change the state's sentencing laws so fewer criminals are locked in state prisons and county jails. However, Bezotte said the proposal will only land more people in the county jail, which continually sees overcrowding.
According to the proposed sentencing law reforms report, about 140 felonies — such as fourth-degree fleeing and eluding, felonious driving, negligent homicide and writing bad checks — would become one-year misdemeanors, which mean a potential jail sentence — not prison. The plan also calls for putting lower-level offenders behind bars for less time....
Attorney General Mike Cox as well as other law enforcement officials on Monday blasted the proposal, calling it "seriously flawed."
The state report disagrees with Bezotte's analysis of the likely impact, indicating that statewide county jail intake will be reduced by a net of 11,939 admissions each year.... "We need these sentencing reforms," Corrections spokesman Russ Marlan said. "If we want to see significant costs savings, we need to decrease the prison population." That's all well and good, local officials say, but the problems the state hopes to eliminate are simply being passed to the county governments.
Wednesday, July 18, 2007
The Sentencing Project's new report on prison disparities
As first previewed in this post and as detailed here, the Sentencing Project has a new report providing "a regional examination of the racial and ethnic dynamics of incarceration," which "finds broad variations in racial disparity among the 50 states." The report is entitled "Uneven Justice: State Rates of Incarceration by Race and Ethnicity" and is available at this link.
Among other interesting findings, these highlights from the report may surprise a few folks:
- African Americans are incarcerated at nearly six (5.6) times the rate of whites
- Hispanics are incarcerated at nearly double (1.8) the rate of whites
- States exhibit substantial variation in the ratio of black-to-white incarceration, ranging from a high of 13.6-to-1 in Iowa to a low of 1.9-to-1 in Hawaii
- States with the highest black-to-white ratio are disproportionately located in the Northeast and Midwest, including the leading states of Iowa, Vermont, New Jersey, Connecticut, and Wisconsin. This geographic concentration is true as well for the Hispanic-to-white ratio, with the most disproportionate states being Massachusetts, Pennsylvania, New York, New Hampshire, and New Jersey.
Saturday, July 14, 2007
Latest FSR issue on state reforms now on-line
Now available on-line (with a subscription) at this link is the Federal Sentencing Reporter's latest issue, which is focused on state sentencing reforms and information-driven analyses of sentencing developments. In the issue's editors' introduction, Steve Chanenson and I ask the question "Can and Will Information Spur Post-Modern Sentencing Reforms?"
Other recent FSR issues:
- FSR Issue 19.3: Claiborne & Rita: Reasonableness Review in the Supreme Court
- FSR Issue 19.2: Victims and Sentencing II: Beyond the CVRA
- FSR Issue 19.1: Victims and Sentencing I: Victim Impact Evidence, the Crime Victims' Rights Act and Kenna
- FSR Issue 18.5: Toward Real Reform: The Constitution Project Recommendations; Model Federal Sentencing Guidelines
- FSR Issue 18.4: Sentencing at the Supreme Court
- FSR Issue 18.3: Taking Stock a Year after Booker
- FSR Issue 18.2: Defense Perspectives on the Post-Booker World
- FSR Issue 18.1: State of Blakely in the States
Monday, June 18, 2007
Costs cause states to pursue prison alternatives
This new article from Stateline.org, entitled " States seek alternatives to more prisons," highlights how prison overcrowding problems across the country are creating the necessity to invent new types of responses to crime. Here are excerpts from the article (which includes a cool graphic reflecting this detailed analysis of state-by-state increases in corrections costs):
With swelling prison populations cutting into state budgets, lawmakers are exploring ways to ease overcrowding beyond building expensive new correctional facilities. Though the construction of prisons continues as states struggle to provide enough beds for those behind bars, legislators increasingly are looking at other ways to free up space and save money, including expanded programs to help prevent offenders from being incarcerated again, earlier release dates for low-risk inmates and sentencing revisions.
Criminal justice analysts point to Kansas and Texas as recent innovators. Both states are putting off building new prisons, focusing instead on rehabilitation and recidivism. At the same time, a new $7.7 billion prison spending plan in California — where overcrowding last year forced Gov. Arnold Schwarzenegger (R) to declare a state of emergency — has met with skepticism. Critics call the plan "prison expansion, not prison reform" and say the initiative relies on impractical fixes such as shipping inmates out of state.
State spending on prisons surged 10 percent nationally last fiscal year (see graphic) and growing inmate populations played a lead role in those costs, according to an analysis by the National Conference of State Legislatures. Corrections trails only education and health care in swallowing state dollars, and experts say lawmakers are responding to the budgetary pressures by trying more cost-effective approaches.
Some related posts:
Thursday, June 07, 2007
California sentencing commission closer to reality
As detailed in articles from the San Jose Mercury News and the Sacramento Bee, both houses of the California legislature passed (slightly different) bills to create a sentencing commission in California. the Mercury News article nicely details differences in the bill and the partisan political rhetoric surrounding their consideration and passage.
Some related posts:
- Might California finally create a sentencing commission?
- A push for a sentencing commission in California
- Advocating a sentencing commission for California
Monday, May 21, 2007
Ninth Circuit rejects Eighth Amendment challenge to 15 years for child porn distribution
The Ninth Circuit issued an unsurprising ruling today in US v. Meiners, No. 06-30389 (9th Cir. May 21, 2007) (available here), which rejects a defendant's claim that his 15-year federal sentence for advertising and distributing child porn was unconstitutional. What makes the case blog-worthy is that the Meiners ruling emphasizes the particular harms that flow from advertising and distributing child pornography. Meiners thus perhaps indirectly suggests that a very long sentence for simply receiving child porn — such as the 200-year Arizona state sentence given to a Phoenix high school teacher for simply possessing child pornography (basics here, commentary here) — might produce a different Eighth Amendment assessment.
Some related posts on the Berger case:
- Arizona Supreme Court upholds 200-year sentence for possessing child porn
- What ever happened to state constitutional law, textualism, and libertarianism?
- Liberty versus security in the war on ... sex offenders
- More on the cert denied in Berger
Friday, May 11, 2007
Mass talking about crime fighting through the elimination of mandatory minimums
A helpful reader pointed me to this Boston Globe article focused on Massachusetts' Governor Deval Patrick new statewide anticrime plan. The concluding section of the article spotlights that getting rid of mandatory minimums is on lawmakers' crime-fighting agenda:
Salvatore F. DiMasi, House speaker, said lawmakers should consider eliminating mandatory minimum sentences as part of any comprehensive plan to reduce crime. "Mandatory minimum sentences aren't working, and we're paying for the mistakes we made in the past," said DiMasi. "We need to do more. Young people need to have a chance in life to turn away from the streets, not turn to the streets."
Critics, including Patrick and Senate President Therese Murray, argue that mandatory sentences make it less likely that prisoners will be able to rejoin society successfully once they are freed because they are barred from participating in work release, rehabilitation, or furlough programs. Also, once prisoners serving mandatory sentences are released, they are sent back to society unsupervised.
Patrick said yesterday that he hopes the anticrime council, which met for the first time yesterday, will look at ways to change the state's mandatory sentencing laws -- which were passed in the 1990s as a response to the perceived leniency on some drug- and gun-related crimes.
Tuesday, May 08, 2007
Great observation on NY's new sentencing reform initiative
Though locked up by a subscription, I saw a great piece in yesterday's New York Law Journal entitled "New York's New Commission on Sentencing Reform" by Alan Vinegrad and Douglas Bloom. The article thoughtfully discusses Governor Eliot Spitzer's establishment of the New York State Commission on Sentencing Reform (previously discussed here). Here are some passages from the informative and insightful article:
The [federal] Sentencing Reform Act of 1984 directed the USSC to create and maintain a determinate sentencing system with the now-familiar Sentencing Guidelines as its centerpiece. The [New York] Commission on Sentencing Reform, on the other hand, does not appear to have been developed with any particular system in mind. Rather, it has been given the open-ended charge of recommending legislative fixes that include alternatives to incarceration and take into account the fiscal impact of the prison system. It appears that, beyond simple uniformity, the commission's aim is to reduce prison populations while still maintaining public safety and the traditional goals of criminal punishment....
Combined with a separate proposed program to consolidate and close state prisons, cost may have been a motivating factor behind the creation of the new commission. With the political freedom to experiment that comes with lower crime rates, Governor Spitzer appears to be seizing the opportunity to explore ways to reduce crime and improve the state budget at the same time. Although not abandoning the goal of limiting sentencing disparity, he has effectively charged his new committee with the difficult task of finding ways to reduce crime and dampen recidivism while still protecting the community at reduced costs.
By focusing on alternatives to incarceration, the commission has an opportunity to achieve this goal. In a sense, Governor Spitzer's answer to Mayor Koch is that the state may not need to choose between education and incarceration. Through re-entry programs, education programs and alternatives to sentencing — such as the Drug and Community Court systems — the state may be able to reduce crime while simultaneously reducing incarceration.
Tuesday, May 01, 2007
Geography and sentencing differences in Ohio
Thanks to ODPI, I saw this interesting article in the Defiance Crescent-News, entitled "Felony sentencing philosophy reflects community values," which details how local geography impacts sentencing outcomes in different ways in capital and non-capital cases. Her is how it starts:
Do judges in Ohio's rural counties send certain offenders to prison at a higher rate than judges in larger counties? The answer -- according to three area common pleas court judges -- is yes. And they make no apologies for it.
"It's definitely true that convicted offenders in rural areas are sent to prison more than in the metropolitan areas, particularly in drug cases," said Joseph Schmenk of Defiance County. "I think most judges have a sentencing philosophy which reflects their county's values and mores," he added. "I don't think there's anything wrong with that."
Monday, April 16, 2007
The on-going MPC sentencing project
A month from today at the American Law Institute's Annual Meeting, Tentative Draft No. 1 of the "Model Penal Code: Sentencing" project is up for approval. As detailed here, work on this project began back in 1999 because of the need to update the MPC's approach to sentencing "in light of the many changes in sentencing philosophy and practice that have taken place in the more than 40 years since the Code was first developed."
The project's progress has been disrupted somewhat by the Blakely revolution, and the project's direction has been questioned by ALI member Michael Marcus, circuit-court judge for Multnomah County, Oregon. As detailed in this statement, Judge Marcus proposes to make a number of motions critical of the draft in its present form. The project's Reporter, Professor Kevin Reitz has this response.
The debate over the substance of the new MPC sentencing provisions is very interesting, but it is not clear that it is very important. These days, there are no shortage of ideas for sounder sentencing reform; the real challenge, as California continues to demonstrate, is to be able to manage or alter the skewing influence of politics so that sounder sentencing reforms can be effectively exacted and implemented.
Monday, April 02, 2007
Notable (but limited) SCOTUS action
SCOTUSblog has all the news on today's Supreme Court action, which includes a notable (but perhaps troublesome) order requesting supplemental briefing in Panetti v. Quarterman. The big news is two big decisions in environmental cases
Still no word on the ACCA case James that was argued five months ago. Apparently it was easier for the Justices to figure out global warming than to figure out criminal history doctrines.
A new New York under Spitzer?
The Gotham Gazette has this interesting and detailed article entitled "Criminal Justice Under Eliot Spitzer." This piece provides lots of information about how New York's new Governor might recast criminal justice law and policy in the Empire State.
Wednesday, March 28, 2007
California's continued struggles
California continues to struggle with its response to Cunningham and its on-going prison over-crowding problems. Here are two news accounts with new developments:
- As a response to Cunningham, "Assembly Approves Changes to California Sentencing Law"
- As a response to over-crowding, "Hold placed on bills that might swell prisons"
Sunday, March 25, 2007
County sentencing disparities in Michigan
The AP has this extended story on sentencing disparities in Michigan, entitled "Is Michigan justice unequal?: Prison sentences may depend on where defendants are convicted." Here is a snippet:
A man convicted of breaking into a house in rural Hillsdale County often ends up in prison if the judge has the ability to send him there. Doing the same thing 80 miles away in suburban Detroit would more likely get the convict jail time, probation or a lighter punishment.
Michigan's sentencing guidelines are meant to ensure that consistent sentences are handed out for similar crimes. But when given a choice, judges in most smaller counties are sending certain offenders to prison at a higher rate than judges in larger counties, according to state Department of Corrections data.
Friday, March 23, 2007
A decade of Ohio sentencing reform
To mark what is roughly the 10-year anniversary of sentencing reform in Ohio, the Ohio Criminal Sentencing Commission has created a terrific primer fittingly entitled "A Decade of Sentencing Reform." Though focused exclusively on Ohio developments, the report covers an array of topics that should be of interest to all students of modern sentencing reforms. This report can be downloaded here: Download ohio_decade_of_sentencing_reform.doc
Wednesday, March 21, 2007
Sentencing job in Blakely's backyard
Any sentencing fan wanting to take their interests to a new level should consider applying for an exciting position now open in the land of Blakely. As detailed in the flier that can be downloaded below, the "Washington State Sentencing Guidelines Commission (SGC) located in the heart of the beautiful Pacific Northwest is seeking a dynamic, legal and legislative-minded Executive Director with technical, policy, managerial, and interpersonal skills."
Though I doubt this job pays quite what federal judges earn, I cannot imagine a more exciting opportunity for persons experienced in the field of sentencing. All the pertinent information about qualifications and application procedures can be found in the flier.
Wednesday, March 14, 2007
Interesting new report from The Sentencing Project
The Sentencing Project has released a new study reporting growing momentum for sentencing reform designed to limit prison population growth and reduce ballooning corrections budgets in the United States.
Changing Direction? State Sentencing Reforms 2004-2006 finds that at least 22 states have enacted sentencing reforms in the past three years. The report further identifies that the most popular approach for reducing prison crowding -- implemented by 13 states -- was the diversion of low-level drug offenders from prison to drug treatment programs. Additional policy changes included:
- expansion of alternatives to incarceration for non-violent offenders;
- parole and probation reforms designed either to reduce time served in prison or to provide supervision options to reduce the number of revocations to prison; and
- broader sentencing reform, such as modifying controversial mandatory minimum sentencing laws.
Changing Direction? State Sentencing Reforms 2004-2006 argues that in order to build on these positive legislative developments, lawmakers must continue to enact evidence-based criminal justice policies. Recommendations of The Sentencing Project urge that policymakers:
- expand the use of drug treatment as a sentencing option;
- utilize intermediate sanctions for technical violations of parole and probation;
- repeal mandatory minimum sentences; and
- reconsider sentence lengths.
Friday, February 16, 2007
The Pew Index Strategy
[Posted by Ron Wright]
Doug is away for a few days. He'll be checking in now and then from the road, but while he's away I'll be feeding the dogs, watering the plants, musing once or twice on the SLP Blog ...
Recent SLP posts (here and here) have touched on the recent past work of the Pew Charitable Trusts. I want to highlight the future work of the Pew Public Safety Performance Project -- looking up to the front Pew, rather than looking behind to the back Pew (sorry, I'm just trying to invoke Doug's spirit of fun here). As you can see from this description of the project, Pew's emphasis is on promoting effective sentencing practices for states, without looking directly at the federal system.
The distinctive Pew technique for promoting good practices is to create a "report card" or an "index" to offer state officials an accessible way to compare their efforts to what happens in other states. They sort through features of state systems, reduce them to a single number or score, and compare states. Pew already uses this technique in areas such as higher education.
It's an interesting affirmation of democracy, isn't it? While it is tempting to call for the "politicians" to leave sentencing questions to the experts, the Pew strategy instead is to make expertise more populist. The report cards, to be sure, simplify some things and therefore distort to some degree. But if the rankings are done well, they focus policymakers on relevant measures and take advantage of a natural competitive spirit.
So here's my question for the large and informed readership of the SLP Blog: What data points about a state sentencing system might be (1) measurable with comparable numbers across many state systems, and (2) tell us something worthwhile about the systems, something worth ranking and changing?
Saturday, January 27, 2007
Will serious sentencing reform come to Colorado?
Though California's sentencing woes and need for reform are making lots of headlines, this news article from Colorado highlights another state trying to start on needed reforms:
The state legislature will look at reforming Colorado prison sentences this session, breaking a longtime taboo in state politics. "We will make a significant attempt at some kind of sentencing reform," Rep. Terrance Carroll D-Denver, chairman of the House Judiciary Committee, said Friday. He said his committee would be looking at a recent report from the Colorado Lawyers Committee that called for creation of a sentencing reform commission to propose changes.
Carroll said the state's new Democratic governor, Bill Ritter, is interested. Evan Dreyer, the governor's spokesman, said Ritter, a longtime prosecutor, "is interested in taking a closer look at many aspects of the criminal justice system," with emphasis on reducing recidivism....
Carroll spoke after a news conference about halting Colorado's soaring growth in prisoners. The gathering brought together a disparate group of supporters, including the free-market Independence Institute, Democratic legislators, the sheriff from conservative Colorado Springs and prison reformers.
The state expects to add more than 6,000 prisoners by 2011, requiring $800 million in prison construction. That figure is more than twice the amount Colorado expects to have for all capital construction other than roads during that period of time. A number of officials have concluded the state cannot afford it....
Carroll called state sentencing laws "byzantine" because they are so complex. Lawyers and judges often debate in court how indecipherable laws interact to mandate a particular sentence, said Maureen Cain of the Colorado Criminal Defense Bar. She cited a client who has been successfully managing probation for three years, supporting his children and passing his drug tests - but who is about to be sent to prison because he cannot afford his probation fees.
Monday, December 18, 2006
Two states turning to overdue reforms
Though death penalty developments get most of the headlines, non-capital sentencing has the broadest impact on criminal justice systems. Thus, it is heartening to see new that both Alabama and California are getting serious about long needed reforms:
- From Alabama, this AP article details that "Alabama has been chosen for a national project that would lead to more community corrections programs, more rooms in prisons and a drop in recidivism rates, state officials announced Friday." This local editorial provides more background on this important development for Alabama sentencing and corrections.
- From California, this AP article details that "California's corrections secretary said Friday that the state will create a commission to review sentencing guidelines for felons, a potential key step in Gov. Arnold Schwarzenegger's efforts to relieve prison crowding."
Monday, December 11, 2006
In support of indeterminate sentencing
In this recent post, I noted a Texas report touting the virtues of parole in a modern state sentencing system. On a related front, thanks to the always terrific Corrections Sentencing, I see that the Utah Sentencing Commission has issued this fascinating statement in support of the state's indeterminate sentencing system. Here is the statement's executive summary:
By avoiding precise and fixed sentencing and release determinations, Utah's primary sentencing interests are best protected. An offender's release from incarceration is contingent on the individual nature of the crime committed, mitigating and aggravating circumstances associated with the criminal offense, past criminal history, the offender's conduct in the prison system, and proven amenability to rehabilitation over time. Our indeterminate system preserves control over the offender and enables a careful evaluation of the offender prior to releasing him back into the community.
Perhaps Utah ought to be a model for Congress if it ever decides that a Booker fix is needed for the federal sentencing system.
California's desperate need for reform
The New York Times has this extended article detailing the sorry state of sentencing and corrections in California. The pictures accompanying the story are stark and telling, and the text of the article really only provides the most basic details of California's woes. Notably missing from the discussion is the possibility that Supreme Court in Cunningham might declare California's structured sentencing system unconstitutional (lots of background here).
The entire article spotlights the challenging politics of sentencing reform, even when a state's situation seems desperate. Also, the second part of the article make a nice case for sentencing commissions. Here is a long snippet from today's must-read:
By nearly every measure, the California prison system is the most troubled in the nation. Overcrowding, inmate violence, recidivism, parole absconders and the prison medical system are among its many festering problems....
"The November election is over, and that is critical in terms of the politics of prison reform," said the State Senate majority leader, Gloria Romero, Democrat of Los Angeles. "The governor is particularly looking at his legacy, and I do not believe he can have a positive one if he does not solve the prison crisis."
Overcrowding is so severe that 16,000 inmates are assigned cots in hallways and gyms; last month, the state began asking for volunteers to be moved to prisons out of state. The system's medical program is in federal receivership and much of the rest of the system is under court monitoring. Cellblocks are teeming with violence. Seven of 10 inmates released from prison return, one of the highest rates in the country....
Like so many things in California, the scope of the prison problem stems largely from its size. The system houses 173,000 inmates — second-place Texas has 152,500 — and has an $8 billion budget. Its population explosion is in large part an outgrowth of a general increase in the state's population, its unusual sentencing structure and parole system, a legislature historically enamored with increasing penalties, and ballot measures like the three-strikes initiative.
Further, most rehabilitation programs have been eliminated from the system in recent years, which some criminal justice experts believe has increased the rate of recidivism. Some experts also argue that a legislature bound by term limits has created an expertise vacuum on the complex and emotional issue of prison sentencing....
[A] consensus has been building over the last six months, with union officials, the governor, public policy experts and many members of the legislature agreeing that a sentencing commission is in order. Sentencing commissions, made up of a diverse group of experts including former judges and crime victim advocates, essentially treat prison beds as scarce resources that need to be properly allocated.
Some related posts on California's prison problems:
Monday, October 23, 2006
Should juves get a sentencing break?
This article from the Richmond Times Dispatch, entitled "Many youths get leniency from judges," reports on recent findings by the Virginia Criminal Sentencing Commission that juvenile offenders seem to be getting more breaks at sentencing. Here is a snippet from the article:
A decade after legislators got tough on juvenile offenders by allowing more of them to be tried as adults, records suggest those juveniles are shown more leniency than adults. That has some experts pleased and others concerned. Both sides agree more study is needed.
[A] recent survey of sentencing records by the Virginia Criminal Sentencing Commission indicates circuit court judges are being relatively lenient with young offenders.... In the five years ending June 30, 2005, circuit judges issued juveniles lighter sentences than called for by the guidelines 36 percent of the time, compared with just 11 percent for all criminals....
A notable finding was that judges were most likely to sentence juveniles below sentencing guidelines in cases involving rape and other serious sex crimes. Judges sentenced below the guidelines in 58 percent of those cases even though two-thirds of the victims were under 13. Judges also appeared to be lenient when sentencing for burglary and robbery, going below the guidelines 48 percent and 45 percent of the time, respectively.
[D]irector of the sentencing commission, Richard Kern, said ... noted that age is an important factor in predicting the future danger a young criminal poses — generally the younger the offender, the more trouble they will be later. Showing leniency because of an offender's youth runs counter to what criminologists might recommend, Kern said.
Friday, September 01, 2006
Terrific accounting of state-by-state sentencing structures
With thanks to Michael Heise and ELS Blog for this tip, I have discovered that this is an interesting sentencing part to the Bureau of Justice Statistics' massive account of information on state court systems in its recently-released report State Court Organization, 2004. Starting at page 239 of a 300+ page document is a part called "The Sentencing Context," which has five amazing tables describing, state-by-state, facets of the sentencing process.
Saturday, July 29, 2006
Super sentencing commission soiree
Anyone with an interest in sentencing, and especially the work of sentencing commissions, ought to make haste to Philadelphia for the 2006 Conference of the National Association of Sentencing Commissions (NASC). Starting next Sunday, the Conference is entitled "Keystone of Sentencing: Balancing Fairness and Costs," and the particulars are detailed in this schedule. The latest NASC newsletter, available here, has more information about the conference (and also discusses recent work of some state sentencing commissions).
Though Blakely and Booker talk will surely arise during the NASC conference, the structure and agenda of the event ensures that a broad range of other important sentencing reform issues take center stage. I am planning to attend the entire NASC conference, and I have the honor of moderating a Monday panel on Federalism & Sentencing. I am looking forward to every part of the terrific event, and I might even try to do a little live blogging if the tech gods are friendly.
Sunday, June 11, 2006
Training sentencing judges
This article from Alabama, entitled "Judges await training in sentencing," provides an interesting perspective on one of the challenges that accompany the adoption of a new sentencing system. Here is a snippet:
It's been two months since Gov. Bob Riley signed into law voluntary sentencing standards for 26 of the most common felonies in Alabama. Judges don't have to follow the standards but they must show that they considered them.
This is what the new law requires, but over the past two months, the Alabama Sentencing Commission has given only about a dozen judges training on how to use the new standards that give low-level criminals a chance to get treatment instead of hard time. The commission has a lot of judges, lawyers and clerks to educate and comparatively little time to do it. "It's a monumental task with a lot of people to reach," said Rosa Davis, attorney for the Alabama Sentencing Commission, a key player in getting the changes implemented.
Friday, June 02, 2006
State legislator speaks out against mandatories
In the Philadelphia Inquirer, State Representative Greg Vitali has this notable op-ed entitled, "Mandatory sentences, minimum justice." Here's a portion of the strong piece that should be read in full (especially now that legislation is in the works to create a rigid mandatory federal sentencing scheme):
When some people learn that I'm opposed to minimum mandatory sentencing laws, they accuse me of "voting with the drug dealers and against our children." That's just campaign rhetoric, promoted by those eager to appear "tough on crime." These sentencing laws, regrettably, impede our judicial system's ability to do justice....
The main problem with mandatory minimum sentences is that they take away the ability of judges to consider the individual circumstances of each case when imposing sentence.... Another problem with mandatory minimums is that they skew our system of justice by shifting power from judges to prosecutors.... Finally, mandatory minimum sentences have added huge costs to Pennsylvania's corrections budget.... A much better approach would be to eliminate mandatory minimum sentencing and rely on the sentencing guidelines already set up by the Pennsylvania Sentencing Commission.
As of now, legislators who oppose mandatory minimums are losing the sound bite war. That's why many politicians who oppose mandatory minimums nevertheless will not vote against them - they consider such a vote political suicide. The groups who oppose mandatory minimums must be more vocal in their opposition, particularly groups with a vested interest, such as the judges whose role is being impeded, the lawyers who see how mandatory minimums skew the system, and the groups working for justice in our communities. Only these groups can educate the public about the problems with mandatory minimums, and provide the political cover that legislators need to make changes. Those changes need to be made soon. Our system of justice depends on it.
Sunday, May 28, 2006
Delaware considering repeal of drug mandatories
This recent editorial and this recent commentary from Delaware suggests that the state might soon "repeal mandatory minimum sentence laws regarding drug offenses" through a pending bill. The commentary indicates that "34 members of the Delaware House of Representatives and the Senate have agreed to bipartisan sponsorship of House Bill 181." Additional background on the bill (and advocacy for it) can be found at this webpage maintained by Stand Up for what is Right and Just, a grassroots organization dedicated to reforming Delaware’s criminal justice system.
Friday, April 14, 2006
Should prior military service reduce a sentence?
This interesting federal sentencing story from Alabama, entitled "Soldier gets 5-year sentence," has me thinking again about whether guideline sentencing systems ought to provide (and regulate) sentencing reductions for military service. Here are highlights from the article:
Patrick Lett seemed to have everything going for him, including a 17-year Army career that saw him rise to the rank of sergeant and serve honorably in the Iraq war and Operation Desert Storm a decade earlier. But something went terribly awry in early 2004. Lett, 37, of the Monroe County town of Peterman, fell in with some cousins who law enforcement investigators contend sold tens of thousands of grams of crack cocaine in the Monroeville area.
Lett pleaded guilty in December to seven counts of distribution of crack. On Thursday, U.S. District Judge William Steele, who appeared moved by Lett's story, sentenced him to five years in prison -- the minimum allowed by law. Defense attorney Glenn Cortello said his client also faces expulsion from the military.
The prison term is 10 months shorter than the punishment recommended under advisory sentencing guidelines, but the judge rejected a request Cortello to cut the prison time. A judge could order a shorter sentence by ruling that the mandatory-minimum sentence would be unconstitutionally excessive.
I often think of honorable military service and other past good deeds by a defendant as the flip side of criminal history. Criminal history, after all, is just a past record of prior bad deeds, and every sentencing system (guideline or otherwise) provides for sentence enhancements (often huge enhancements) based on such a record of prior bad deeds.
Doesn't it make some logical sense for a sentencing system to similarly provide for sentence reductions based on a notable record of prior good deeds such as military service? Especially during a time of war, wouldn't a sentence reduction based on honorable military service serve as a tangible way to recognize and reward service to our country?
Thursday, April 06, 2006
Following Alabama sentencing reform
This morning's Montgomery Advertiser has this interesting editorial, entitled "Commission has much left to do," which highlights the long path to effective sentencing reform. Here's how it starts:
The passage of statewide sentencing guidelines was a landmark event that holds great potential for helping ease the chronic overcrowding of Alabama's prison. Alabamians owe a generous measure of appreciation to the Alabama Sentencing Commission.
Even with that notable objective accomplished, however, the work of the commission is by no means over. It will now shift its focus to improving community corrections programs and moving toward its eventual goal of truth in sentencing, in which the time sentenced is the time served, as in the federal judicial system.
Related posts on Alabama sentencing reform:
Friday, March 31, 2006
Alabama legislature approves voluntary guidelines
As detailed in this article, after a very long reform process, the "Alabama Legislature gave final approval Thursday to three bills supported by Gov. Bob Riley to reform Alabama's sentencing procedures and help ease overcrowding in state prisons." Specifically, the "key bill in the package would provide judges with a voluntary list of recommended sentences for various crimes." I found this passage in the article especially interesting:
The sponsor of the legislation, Rep. Marcel Black, D-Tuscumbia, said the purpose of the bill setting voluntary sentencing guidelines was so that a person convicted of committing a crime in one part of the state will receive a similar punishment as a person convicted of the same crime in a different area. But Black said judges will still have the option to give a lenient sentence or a harsher sentence when needed. "Every theft case is not the same. Every murder case is not the same," Black said.
Perhaps we might encourage state representative Black to take a meeting with federal representative Sensenbrenner (who apparently does not quite see the virtues of judicial discretion).
Monday, March 13, 2006
California's sentencing and corrections woes
A thoughtful reader pointed me to this strong piece from Sunday's San Francisco Chronicle, entitled "Prison reform needs reform: Corrections system can't do task alone," which discusses the woes of California's sentencing and corrections system. Here's a snippet:
Scholars ... who have studied California's overcrowded, $8 billion corrections system have repeatedly concluded that many of the system's troubles stem from poorly thought out criminal justice policies.
Sentencing laws enacted more than 30 years ago, and repeatedly described as a failure, require nothing of inmates, who sit in cells or on yards instead of entering drug treatment or vocational education programs. Corrections administrators have little power to determine when an inmate is truly ready to leave prison, and that results in the daily release of dangerous people back into the neighborhoods they previously terrorized. Overburdened parole agents are required to monitor virtually every parolee, leaving the agents little time to concentrate on the parolees most likely to pose a threat to citizens. That has resulted in this shocking fact: More than 20,000 California parolees are unaccounted for on any given day....
And many scholars say lawmakers continue to make bad decisions based more on headlines and emotional pleas than on a growing body of data that suggests how states can run cost efficient and effective prisons and parole systems.... Rarely are costs — or studies showing effectiveness — considered. The results make working in the state's penal system difficult and contribute to parolees churning in and out of jam-packed prisons.
Saturday, March 11, 2006
Former state prosecutor finds religion
The Capital Times, a Wisconsin paper, has this interesting article about a former prosecutor-turned-pastor who is now speaking out about excessive incarceration and calling truth-in-sentencing "evil." Here's a snippets from the article:
It had been gnawing away at him for years, especially after the Wisconsin Legislature passed the "truth in sentencing" law in 2000. "I became concerned about the legal system's obsession with fairness, which is very different from justice," Jerry Hancock, a former attorney in the Dane County District Attorney's Office, noted during an interview at a west side coffee shop this week. "I mean, people can get a fair trial. But the results may be unjust."
Fairness, he adds, "is very important. But a system that ends up with more than half the inmates being African-American and Hispanic is not just. And I wanted to deal with those issues from a whole different perspective." So in 2001, Hancock, who had spent three decades in the criminal justice system, pointed his life in a new direction. With the encouragement of his wife Linda, he started taking classes at Chicago Theological Seminary so that he could become a minister and provide spiritual guidance for prisoners and their families, as well as for victims of violent crime.
Related posts on religion and criminal justice:
- Religion, sentencing and corrections
- Meth, mandatories and moral values
- Is there a "new right" on criminal sentencing issues?
- Miers, religion, and criminal justice issues
- Having faith in prisons
Wednesday, March 08, 2006
Ohio defenders seek reconsideration of Foster's retroactive application
Today brings an interesting development in the saga of Blakely's application to Ohio's sentencing law. Recall that last week, the Ohio Supreme Court in Foster found Blakely applicable to Ohio's structured sentencing system and adopted a Booker-type remedy (basics here, commentary here and here and here). Now, the Foster defendants and a supporting amicus have filed for reconsideration in the Ohio Supreme Court claiming that the "retroactive application of this case's remedy to persons who committed their criminal offenses prior to the release of the Opinion, violates clearly established United States Supreme Court precedent regarding ex post facto and due process."
I have provided links to two briefs filed in support of this motion for reconsideration. Here is a portion of the argument summary from Amicus Curiae Cuyahoga County Public Defender:
Your amicus' argument against retroactive application to persons who committed their offenses prior to 9:00 a.m. on February 27, 2006, can be summarized as follows. At the time of the offense conduct, the criminal defendant enjoyed, as a standard range of punishment, a presumptive sentence of minimum and concurrent terms of imprisonment; a trial judge could only overcome that presumption by making statutorily prescribed findings. This Court correctly held that, because the trial judge and not a jury was entrusted with making these findings, the statutory scheme violated the Sixth Amendment right to trial by jury as interpreted by Blakely. In its opinion in the instant case at “Part V. Remedy,” ¶¶ 84-102, this Court has eliminated the presumptive sentence, thus relieving the trial judge of having to make any findings whatsoever before imposing a sentence at any point in the statutory range and before ordering terms of imprisonment to be served consecutively to one another.
Applied prospectively, this Court's employment of severance to save the statutory scheme from an unconstitutional interpretation, as a general matter, does not violate ex post facto and the due process considerations attendant thereto. However, when applied to those persons whose crimes were already committed, this Court's remedy unconstitutionally changes the rules to the defendant's detriment by stripping defendants of the protections of the presumptions discussed above. Just as the General Assembly could not amend the statutory scheme in this manner and legislate that the new scheme apply to those whose crimes have already been committed, this Court is precluded from doing the same.
UPDATE: The ACLU of Ohio has also filed a brief seeking reconsideration of the Foster remedy. The ACLU brief, which can be downloaded below, stresses separation of powers concerns. Here is a snippet:
The ACLU files this supporting brief as amicus to address [its] concern that ... Foster violates the separation of powers by usurping the legislative function specifically and exclusively allocated to the General Assembly.
March 8, 2006 in Blakely Commentary and News, Blakely in the States, Blakely in the Supreme Court, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack
Thursday, March 02, 2006
South Carolina top judge calls for sentencing reform
As detailed in this interesting article, South Carolina's Chief Justice "called for a 'policy summit' on sentences in South Carolina, citing exploding prison populations nationwide." Here are selections from an interesting read:
"Sentencing in the United States is a national disgrace," Supreme Court Chief Justice Jean Toal said Wednesday in her annual speech to the S.C. General Assembly.... From 1970 through 2000, the nation's prison population increased six-fold, Toal said. "This is a huge drain on state and local resources."... "We don't know the answer now as to how the system is being run because it's been such a long time since we've taken a real hard look at it," Toal said afterward. "I want to know if there are better ways to sentence and incarcerate than what we are using now."...
State Sen. Jake Knotts, R-Lexington, a former police officer, said he thinks the state should resurrect the sentencing guidelines commission. He was a member of the group, which disbanded a few years ago. The commission proposed uniform sentence ranges based on the severity of the crime and the defendant's criminal history....
North Carolina adopted similar guidelines in the mid-1990s. They helped reduce prison populations and saved about $1 billion over a decade, said Tom Ross, former chairman of that state's sentencing commission. The goal of structured sentencing, he said, is to keep violent criminals behind bars longer while providing alternatives to prison, such as house arrest or substance abuse counseling, for non-violent offenders.
Monday, February 27, 2006
More on California sentencing
- The Christian Science Monitor has this article on the proposed initiatives in California to reform the state's tough three-strikes law. (Prior recent coverage here.)
- The Sacramento Bee, continuing its series on California's drug sentencing laws, has this article today headlined, "Drug law's failures spur get-tough call: Battle looms over effort to crack down."
Thursday, February 23, 2006
The latest must-read on Blakely/Booker
Professor Ron Wright, throughout his copious work on federal and state sentencing systems, always adds an insightful and distinctive perspective to our understanding of sentencing reform. (Bias acknowledgment: Ron is a co-author on my casebook, Sentencing Law and Policy: Cases, Statutes and Guidelines.) Ron's latest paper (available here), entitled "The Power of Bureaucracy in the Response to Blakely and Booker," is no exception. Here is part of the abstract:
How will different jurisdictions respond to the recent Supreme Court decisions in Blakely v. Washington and United States v. Booker, which require jury fact-finding to support certain types of sentences? The best clues in predicting the answer to this question come from the people who know this world best, the sentencing bureaucracy. Sentencing commissions, mostly for benign reasons, hope to preserve their own place in the sentencing structure, or to expand their role if possible. The particulars shift from place to place, but this powerful tendency of bureaucracies for self-preservation offers a reliable way to predict the reactions of sentencing systems to the upset from Blakely and Booker.
February 23, 2006 in Blakely Commentary and News, Blakely in the States, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack
Wednesday, February 15, 2006
Update on state sentencing action
Folks really in the know about sentencing realize that all the sturm und drang over federal sentencing is a sideshow to all the real sentencing action that takes place in the states. Consequently, I am pleased to be able to post the latest edition of the newsletter of the National Association of Sentencing Commissions (NASC), which provides an effective summary of some of the latest activities a number of state sentencing commissions. As the newsletter documents, there is so much interesting and important sentencing work is being done in the states (and not all of it is about Blakely, thank goodness).
In addition, this newsletter has information about the upcoming annual NASC conference, which looks fantastic. The theme for this year's conference, which takes place in Philadelphia in August 2006, is "Keystone of Sentencing: Balancing Fairness and Costs." Be there or be square.
Sunday, January 22, 2006
The state of sentencing in Oregon
Oregon Circuit Court Judge Michael Marcus, who has this fascinating site supporting his "Smart Sentencing" Project, was reported that Oregon has its newly revised "Criminal Benchbook" on the Oregon courts' public site here. Judge Marcus has these interesting comments about this interesting resource:
The benchbook is 1160 pages, pdf format, searchable, hyperlinked in the table of contents [and elsewhere], and also navigable by the usual Adobe Reader tools. Unique, and uniquely vetted by the Criminal Law Committee of the Oregon Judicial Conference [no other portion was deemed controversial], are the first 30 pages of the Sentencing chapter, which notes current sentencing issues and provides practical suggestions for smart sentencing analysis -- all beginning at page 727.
I have quickly scanned the sentencing chapter of the benchbook, and it makes for an interesting read.
Wednesday, January 18, 2006
Alabama sentencing reform moving forward
As detailed in articles here and here, the "Alabama House passed eight bills Tuesday in a package supported by Gov. Bob Riley to reform Alabama's sentencing procedures and help ease overcrowding in state prisons." A basic list of the reforms in these bills is available here. The Alabama Sentencing Commission, which recommended these bills, has a lot more details about these reforms at this webpage and in this legislative pamphlet.
One bill provides for the adoption of voluntary sentencing guidelines. Here is how the Alabama Sentencing Commission describes the bill in its legislative pamphlet:
In compliance with the directives included in the Sentencing Reform Act of 2003, this bill proposes adoption of voluntary sentencing standards for 26 felony offenses. These sentencing recommendations are historically based voluntary, non-appealable sentence recommendations developed for personal, property and drug crimes, representing 87% of all felony convictions and sentences imposed in Alabama over a five year period. The recommended sentence ranges and dispositions for the covered offenses are in lieu of the wider ranges under existing statutory law and provide uniform sentencing recommendations for trial court judges in sentencing convicted felons. These standards, which are voluntary, address both the length of sentences and the disposition of the offender (probation, intermediate alternative or prison).
Notably, proposals for the adoption of voluntary guidelines have been making the rounds for a few year, but Alabama prison overcrowding crisis seems to have finally pushed the reform forward. A few months ago, a state Task Force on Prison Crowding released this report which suggested enactment of these guidelines was key to dealing with the prison overcrowding problem.
Monday, October 24, 2005
More on "Show Me" state sentencing
I noted in ths post interesting sentencing developments in Missouri, where new presentencing reports are designed to encourage more judges to follow voluntary sentencing recommendations. More information and insight on these developments can be found this morning in this Kansas City Star article, which focuses on the problems of geographic disparity and the overuse of scarce prison resources on non-violent offenders.
Sunday, October 23, 2005
Missouri's interesting sentencing developments
Thanks to this AP article, I see that Missouri is about to roll out a risk-oriented, information-driven, computer-aided program for providing state judges with sentencing recommendations. Here is a passage from this press release from the Missouri Sentencing Advisory Commission about this notable development:
Missouri will launch a new pre-sentence investigation format November 1 that will provide judges with information for making effective sentencing decisions.... These new reports contain details about offenders and their offenses with various background data including criminal histories, victim impact statements, and offenders' personal characteristics. To assess offenders' likelihood of re-offending, risk factors are identified and scored. About half the scored factors deal with prior criminal history, while the other factors score particular characteristics that statisticians find are related to the chance for success or failure on probation or parole, such as substance abuse, education level, and employment history.
As explained on this page at the Missouri Sentencing Advisory Commission's website, concerns about the over-use of incarceration for non-violent offenders and about sentencing disparity are among the driving forces for Missouri's sentencing reform efforts. These efforts, and the new recommended sentencing system, are discussed more fully in this lengthy report from the Commission. That report includes this telling footnote:
The commission decided to abandon the use of the phrase "sentencing guidelines" because the same phrase is used in the federal courts to describe a system that is entirely different from the sentencing system in Missouri courts. The commission labels its work as Sentencing Recommendations because that is what they are. They are not compulsory. The Missouri Sentencing Advisory Commission does not support a federal style guidelines system. In fact, the federal system has been rendered voluntary by the US Supreme Court decisions in Blakely (6/24/04) and Booker (1/12/05).
Thursday, August 04, 2005
Judge Pryor urging sentencing reforms in Alabama
As detailed in this newspaper article from The Mobile Register, Eleventh Circuit Judge William Pryor in a speech earlier this week to the Southern Legislative Conference, said that "sentencing practices in many states have grown unfair and bulged prison populations over the last two decades." Earlier this year Judge Pryor, who served as Alabama's Attorney General before his appointment(s) to the bench, also gave a very pro-reform speech as the Keynote speaker at the Columbia Law Review's terrific symposium "Sentencing: What's at Stake for the States?" (background here; Pryor's keynote address appears at Lessons of a Sentencing Reformer from the Deep South, 105 Colum. L. Rev. 943 (May 2005).)
Here are some interesting passages from the Register article:
"If sentencing reform has been urgently needed anywhere, it's in Alabama," [Pryor] said. "Crisis is the only word that could fairly be used to describe the condition in my state."... Pryor ticked off statistics familiar to those who have studied the state's corrections system. Between 1930 and 1980, he said, Alabama's prison population held fairly steady at about 5,000 inmates. That number doubled by 1990 and increased to 23,000 by 2003.
In an interview after his speech, Pryor said other states have enjoyed great success at reducing overcrowded prisons by reforming their sentencing structures. Now that he is a judge, he said it is not for him to say when or how the state should proceed. But he told the conference delegates during his address that while different "stakeholders" distrusted each other, "I could not find a defender of the status quo."
Friday, June 17, 2005
Washington Supreme Court declares Blakely not retroactive
As detailed in this article, on Thursday the Washington Supreme Court concluded in State v. Evans, No. 74851-9 (Wash. June 16, 2005) that "neither Apprendi nor Blakely applies retroactively on collateral review to convictions that were final when Blakely was announced." The Court's unanimous ruling can be accessed at this link, and a brief concurrence by Justice Sanders can be accessed at this link.
The decision in Evans covers now familiar retroactivity ground, relying heavily on Schriro and otherwise rejecting arguments, including a claim based on state law, which might provide a basis for giving some retroactive application to Blakely. And Justice Sanders' one paragraph concurrence makes this observation about the current state of retroactive affairs:
As a matter of logic and principle, I find it difficult to accept one's constitutional right to a jury trial on sentencing factors may be abridged, without remedy, when the issue is first raised based on new case law in the context of a personal restraint petition. But a slim majority (5-4) of the United States Supreme Court in Schriro v. Summerlin, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004), seems to say exactly that. What can I do but concur in the decision of our majority?