Thursday, August 28, 2014
At third federal sentencing, elderly child porn defendant gets one year in prison and lawyer pledges SCOTUS appeal
Regular readers and hard-core federal sentencing fans are familiar with the long-running dispute over the sentencing of child porn downloader Richard Bistline. The latest chapter of this saga, but apparently not the last, unfolded in federal district court yesterday as reported in this Columbus Dispatch article, headlined "Child-porn possessor finally gets harsher sentence: 1 year in prison." Here are excerpts:
A Knox County man at the center of a fight about prison sentences for people convicted of possessing child pornography won’t be out of the spotlight anytime soon. Richard Bistline, 71, was sentenced yesterday to a year and a day in federal prison by U.S. District Judge George C. Smith, who also ordered 10 years of supervised release. Bistline also must register as a sex offender.
Bistline’s attorney, Jonathan T. Tyack, immediately said he will appeal the case in the hope that it eventually will be considered by the U.S. Supreme Court....
It was the third time that Bistline, of Mount Vernon, had been sentenced for his 2009 conviction on one count of possession of child pornography. Sentencing guidelines set Bistline’s prison term at five to six years, although judges have discretion.
His case pingponged from district court to the 6th U.S. Circuit Court of Appeals twice after federal Judge James Graham refused to sentence Bistline to lengthy prison time. Instead, he sentenced him in 2010 to one day in prison, 30 days of home confinement and 10 years of supervised probation.
Assistant U.S. Attorney Deborah Solove appealed, arguing that prison time was needed, and the 6th Circuit ordered Graham to resentence Bistline. In 2013, Graham ordered the same sentence with three years of home confinement. Solove appealed again, and the 6th Circuit ruled that the sentence still was not adequate.
Graham was removed from the case, paving the way for Smith’s sentence yesterday. “The 6th Circuit has clearly spoken and is requiring me to impose a custodial sentence,” Smith said. “I hope my colleagues and the sentencing commission continue to shed light on these very important policies.” Smith then stayed the sentence and said Bistline could remain out on bond until his appeal is decided.
Tyack had asked Smith to sentence his client to one day in prison and 10 years of supervised probation. “At the end of the day, the Court of Appeals is attempting to dictate to this court what sentence it should impose,” Tyack said. “It’s inappropriate.”
Tyack said he hopes the Supreme Court will arrive at that conclusion in Bistline’s case. “He’s caught up in a legal fight that will ultimately define the boundaries between the court of appeals and district court,” Tyack said.
Bistline, a former Michigan schoolteacher with no criminal record, was arrested after a task force investigating online crimes against children downloaded images of child pornography that had come from Bistline’s home computer. A search of the computer revealed 305 images and 56 videos of children posing naked or involved in sex acts with adults. Solove said Bistline sought out child pornography for more than a year for sexual gratification. She asked for a five-year prison sentence.
Tyack said in court documents in May that “a 71-year-old inmate with Mr. Bistline’s health problems is likely to suffer greater punishment than the average inmate because the Bureau of Prisons often fails to provide adequate or even necessary medical treatment.” Bistline has a pacemaker, high blood pressure and hearing loss, among other medical problems.
Graham has been outspoken about Bistline’s case and about the federal sentencing guidelines for defendants who have been charged with possession of child pornography. He wrote a lengthy law-review article about the case that was published in December, and he has spoken about the guidelines at court hearings for other defendants charged with child-porn possession.
Wednesday, August 27, 2014
"Rebellion: The Courts of Appeals' Latest Anti-Booker Backlash"
The title of this post is the title of this notable new essay about federal sentencing and appellate practices by Alison Siegler available via SSRN. Here is the abstract:
For over twenty-five years, federal courts of appeals have rebelled against every Supreme Court mandate that weakens the United States Sentencing Guidelines. Since the Court made the Guidelines advisory in United States v Booker, the rebellion has intensified, with the appellate courts consistently ensuring adherence to the Guidelines by over-policing sentences that fall outside the Guidelines and under-policing within-Guidelines sentences. The courts of appeals are now staging a new revolt, creating appellate rules — carve-outs — that enable them to reject meritorious challenges to within-Guidelines sentences.
Part I describes the previous rebellions. Part II introduces the current rebellion. Part II.A discusses what I term the “stock carve-out,” an appellate rule that violates the sentencing statute and the Sixth Amendment by allowing sentencing judges to ignore mitigating arguments regarding defendants’ personal characteristics. Part II.B discusses the “§ 3553(a)(6) carve-out,” a rule that similarly violates the statute and precedent by allowing sentencing judges to ignore disparity arguments. Part III concludes.
August 27, 2014 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack
Based on Burrage, split Sixth Circuit panel reverses federal hate crime convictions for Amish beard-cutters
Regular readers may recall lots of coverage early last year concerning the unusual federal hate crime prosecution and sentencing of a group of Amish who assaulted others in their community in the midst of a religious dispute. The convictions were appealed to the Sixth Circuit, and a panel this morning reversed the convictions based on the intervening Supreme Court decision in the Burrage mandatory sentencing case. Here is how the majority opinion, per Judge Sutton, in US v. Miller et al., Nos. 13-3177 et al. (Aug. 27, 2014) (available here), gets started:
A string of assaults in several Amish communities in Ohio gave rise to this prosecution under Section 2 of The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009. The assaults were not everyday occurrences, whether one looks at the setting (several normally peaceful Amish communities), the method of attack (cutting the hair and shaving the beards of the victims), the mode of transportation to them (hired drivers), the relationship between the assailants and their victims (two of them involved children attacking their parents), or the alleged motive (religious-based hatred between members of the same faith). A jury found that four of the five attacks amounted to hate crimes under the Act and convicted sixteen members of the Bergholz Amish community for their roles in them.
At stake in this appeal is whether their hate-crime convictions may stand. No one questions that the assaults occurred, and only a few defendants question their participation in them. The central issue at trial was whether the defendants committed the assaults “because of” the religion of the victims. 18 U.S.C. § 249(a)(2)(A). In instructing the jury on this point, the district court rejected the defendants’ proposed instruction (that the faith of the victims must be a “but for” cause of the assaults) and adopted the government’s proposed instruction (that the faith of the victims must be a “significant factor” in motivating the assaults). Regrettably for all concerned, a case decided after this trial confirms that the court should have given a but-for instruction on causation in the context of this criminal trial. Burrage v. United States, 134 S. Ct. 881, 887–89 (2014). Because this error was not harmless, and indeed went to the central factual debate at trial, we must reverse these convictions.
Here is how the dissent, per Judge Sargus sitting by designation, gets started:
This is the first appellate case involving a religious hate crime under the Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249. While I respect the majority’s efforts to construe a deceivingly simple, but actually complex, statute, I dissent. In my view, the majority has adopted an unduly restrictive interpretation of the statute.
Since this case was tried, the Supreme Court decided the case of Burrage v. United States, 134 S. Ct. 881 (2014). The majority correctly holds that the “because of” phrase used in § 249(a), similar to “results from,” requires proof that one act would not have happened “but for” the other. I disagree, however, with the majority’s conclusion that the trial court’s causation-instruction error was not harmless. This disagreement stems not from a dispute over the standards governing a harmless error analysis, but rather is from a disagreement over statutory construction.
Related prior posts:
- Ohio Amish hair-cutting incidents now a federal hate crimes sentencing matter
- Stark extremes for forthcoming debate over federal sentencing of Amish beard-cutters
- Interesting defense arguments for sentencing leniency in Amish beard-cutting case
- Feds request LWOP for Samuel Mullet Sr., leader of Amish beard-cutting gang
- Are tough sentences sought in Amish beard-cutting case part of a DOJ "war on religion"?
- "Amish beard-cutting ringleader gets 15 years"
- Guest post on Amish sentencing: "A Travesty in Cleveland"
"Brady's Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team"
The title of this post is the title of this intriguing and timely new article by Jonathan Abel. Here are excerpts:
The Supreme Court’s pronouncements in Brady v. Maryland and its progeny place a constitutional obligation on prosecutors to disclose any evidence that would be favorable and material to the defense. But in some jurisdictions, even well-intentioned prosecutors cannot carry out this obligation with respect to one critical source of impeachment material: police personnel files. Such files contain invaluable material from internal affairs investigations and disciplinary re-ports—information that can destroy an officer’s credibility and make the difference between a defendant’s acquittal and conviction. But, while some jurisdictions make these files freely accessible, others employ a welter of statutes and local policies to keep these files so confidential that not even the prosecutor can look inside them. And, even where prosecutors can access the files, police officers and unions have used litigation, legislation, and informal political pressure to prevent prosecutors from disclosing Brady information in these files. While suppression can cost defendants their lives, disclosure of this information can cost officers their livelihoods, as “Brady cops” may find themselves out of work and unemployable.
Using original interviews with prosecutors, police, and defense attorneys, as well as unpublished and published sources, this Article provides the first account of the wide state-to-state disparities in Brady’s application to police personnel files. The Article argues that the widespread suppression of material in these files results not simply from prosecutorial cheating, but from the state statutory and local institutional constraints that give society’s imprimatur to the withholding of Brady material. It further challenges the doctrinal assumption that prosecutors and police officers form a cohesive “prosecution team,” and that, in the words of the Supreme Court, “the prosecutor has the means to discharge the government’s Brady responsibility if he will” by putting in place “procedures and regulations” to bring forth any Brady material known to the police. Finally, the Article contends that the confidentiality these files currently receive is not only undeserved as a normative matter, but also incompatible with core tenets of the Brady doctrine.
Tuesday, August 26, 2014
Significant Third Circuit ruling on the consequences of a defendant's appeal despite an appeal waiver
A helpful reader alerted me to a significant ruling today by the Third Circuit in US v. Erwin, No. 13-3407 (3d Cir. Aug. 26, 2014) (available here). Here is how the opinion starts:
This case presents the novel question of what remedy is available to the Government when a criminal defendant who knowingly and voluntarily executed a waiver of right to appeal — and received valuable promises from the Government in return — violates his plea agreement by filing an appeal. Christopher Erwin pleaded guilty to conspiracy to distribute and possess with intent to distribute oxycodone, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 21 U.S.C. § 846. His agreement included a waiver of right to appeal his sentence if it was within or below the advisory Sentencing Guidelines range that results from a total advisory United States Sentencing Guidelines (“U.S.S.G.”) offense level of 39. The Government agreed not to bring further criminal charges against Erwin in connection with the conspiracy, and it also agreed to seek a downward departure under U.S.S.G. § 5K1.1. The Government fulfilled its part of the bargain; Erwin, who challenges his within-Guidelines sentence on appeal, did not.
For the following reasons, we conclude that Erwin’s appeal is within the scope of his appellate waiver, to which he knowingly and voluntarily agreed, and that he has failed to raise any meritorious grounds for circumventing the waiver. We further conclude that Erwin breached the plea agreement by appealing, and that the appropriate remedy for his breach is specific performance of the agreement’s terms: that is, the Government will be excused from its obligation to move for a downward departure. We will therefore vacate Erwin’s judgment of sentence and remand for de novo resentencing in accordance with this opinion.
Matthew Stiegler in this post at his CA3blog starts his coverage of this Erwin ruling with this astute observation:
The Third Circuit just issued what looks to me like a very significant new criminal sentencing ruling: when a defendant violates an appeal waiver, he can be re-sentenced without the deal. Defendants who plead guilty and waive their appeals (i.e. virtually all federal defendants) can still raise miscarriage-of-justice challenges to their sentences, but the cost of losing such a challenge just went way, way up.
Notable federal case impacted by SCOTUS Miller ruling nearly two decades after initial sentencing
This local story out of Kansas City, headlined "Judge orders new sentencing hearing for defendant in deaths of six KC firefighters," reports on a notable new legal development in an old case as a result of the Supreme Court's Eighth Amendment ruling in Miller v. Alabama. Here are excerpts (with my emphasis added for reasons explained below):
A man serving a life sentence for his role in the 1988 explosion deaths of six Kansas City firefighters will get a new sentencing hearing, a federal judge has ruled.
U.S. District Judge Fernando Gaitan signed orders Monday setting aside the life sentence given to Bryan E. Sheppard in 1997. Gaitan ordered probation officers to prepare a new sentencing report on Sheppard and told prosecutors and Sheppard’s lawyers to write sentencing memos to be submitted to him by Sept. 26. After that, Gaitan will review the paperwork, confer with attorneys and set a date for Sheppard to be re-sentenced, according to federal court records.
Sheppard, who was 17 at the time of the explosion, asked for a new sentencing hearing because the U.S. Supreme Court ruled in 2012 that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”
In February, prosecutors agreed that Sheppard was covered by the Supreme Court ruling and deserved a chance to make his case for a reduced sentence before a federal judge.
Firefighters Thomas Fry, Gerald Halloran, Luther Hurd, James Kilventon Jr., Robert D. McKarnin and Michael Oldham died before dawn Nov. 29, 1988, while fighting a fire in a construction trailer parked near the site of a U.S. 71 widening project. The trailer contained 25,000 pounds of ammonium nitrate mixed with fuel oil. It erupted in a massive explosion that ignited a second explosives trailer. The two blasts were felt for miles.
A federal jury convicted five defendants nearly nine years later. All were sentenced to life in prison.
The passage I have highlighted is noteworthy because it reveals that federal prosecutors in this case (and I am pretty sure in others) agree that the Supreme Court's Miller ruling should be applied retroactively. As regular readers know, the issue of Miller retroactivity has split state courts and it seems only a matter of time before the SCOTUS resolves the split.
Though guidelines recommend two years or less, feds request 10-year max for woman who bought guns for killer
An interesting and challenging federal sentencing is scheduled this week in upstate New York, and one of many reasons the case is noteworthy is because federal prosecutors are requesting a statutory maximum sentencing term of 10 years in prison when the applicable guideline recommend only 18 to 24 months for the offense. This recent local article, headlined "U.S. asks for Nguyen to get 10 years," provides the context and details:
Federal prosecutors want a judge to ignore sentencing guidelines and sentence Dawn Nguyen to 10 years in prison. While Nguyen likely did not know that firearms she bought for William Spengler Jr. would be used in an ambush of volunteer firefighters, she did "place two tactical military-style weapons in the capable hands of a man who she knew had already killed his own grandmother," say court papers filed Thursday by Assistant U.S. Attorney Jennifer Noto.
Nguyen is scheduled to be sentenced in U.S. District Court on Thursday for her conviction in three federal crimes: lying on a federal firearms transaction when she bought a shotgun and semiautomatic rifle in June 2010; passing those weapons onto a man — Spengler — whom she knew was a convicted felon; and possessing the guns while she was a marijuana user.
The request for a 10-year sentence sets up a rare occurrence in federal court — a decision by a judge as to whether the crimes were so extraordinary that the guidelines should be bypassed. The guidelines, while only advisory, are designed to ensure comparable punishments for comparable crimes. A judge has the discretion in unusual cases to sentence up to the maximum, which for Nguyen is 10 years for each crime.
To make his decision, U.S. District Judge David Larimer will have to weigh the question that has long been central to Nguyen's offenses: Should she be held responsible for the Christmas Eve 2012 violence spree during which Spengler killed his sister and two volunteer firefighters?...
Nguyen has pleaded guilty to the federal crimes. She also was convicted in state Supreme Court of lying on the firearms purchase form when she said the guns were for her. State Supreme Court Justice Thomas Moran sentenced her to 16 months to four years in state prison.
In June 2010, Nguyen and Spengler went to Gander Mountain in Henrietta where she bought the weapons for Spengler, who could not own guns because of his past crimes. On the morning of Christmas Eve 2012, Spengler fatally shot his sister, Cheryl, then started a blaze that largely destroyed his Lake Avenue home and others along the Lake Road strip. He then lay in wait for firefighters, ambushing them with the guns bought by Nguyen. He fatally shot West Webster volunteer firefighters Michael Chiapperini, 43, and Tomasz Kaczowka, 19.
The 10-year sentence "is what the victims have asked for," U.S. Attorney William Hochul Jr. said Friday of the families of the slain firefighters. "It's absolutely critical that the judge keep in mind the chain of events started by Dawn Nguyen," Hochul said.
In a letter to the court, Nguyen, now 25, said that Spengler told her he wanted the guns for hunting, and she did not know enough about guns to find that unusual. She wrote that she knew Spengler had been imprisoned for the death of his grandmother, but she did not know exactly what he had done.
Her attorney, Matthew Parrinello, said Friday that the request by prosecutors for a 10-year sentence is a "media grab."
"She committed a crime and she has already been punished," he said, noting Nguyen's state prison sentence. Parrinello wants Larimer to use the sentencing guidelines, and have the federal sentence run concurrent with her state sentence.
Prosecutors are asking that the federal sentence not be served until after Nguyen completes her state sentence, which would further increase the time she has to spend in prison.
The 25-page sentencing brief submitted by federal prosecutors in this notable case is available at this link and it make for an interesting read.
August 26, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Monday, August 25, 2014
What's the likely Ninth Circuit timeline for deciding the fate of California's death penalty in Jones v. Chappell?
As first noted in this post a few days ago, California Attorney General Kamala Harris has officially noticed an appeal to the Ninth Circuit in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here), the remarkable case in which U.S. District Judge Carney declared all of California's death penalty system unconstitutional. Because the stakes are so high in California and for modern death penalty jurisprudence generally, I expect this Ninth Circuit capital appeal will get considerable attention in the weeks and months ahead and that lots of different death penalty advocates (both pro and con) will be filing amicus briefs with competing claims about the constitutionality of California's death penalty system.
As the question in the title of post highlights, though I am sure the Jones v. Chappell appeal will get garner lots of attention, I am not sure how quickly (or slowly) the Ninth Circuit will hear and decide this case. As death penalty fans know, federal capital habeas appeals have a (well-earned) reputation for proceeding either (1) very slowly, in part because a death row defendant raises so many case-specific claims concerning errors in a state trial and sentencing, or (2) very quickly, in part because there is a looming serious state execution date and the state highlights that all reasonable claims of error have been considered and rejected before. In Jones v. Chappell, however, at issue on appeal is just one basic system-wide constitutional concern which is being considered in a case in which no serious execution date is looming. Consequently, there is little reason to expect this appeal to move especially slowly or especially quickly.
Notably, a bit of irony attends the question in the title of this post because the constitutional issue in Jones v. Chappell centers on lengthy delays in appellate review in California and the apparent arbitrariness of which cases get through reviews more quickly or slowly. Arguably, the longer the Ninth Circuit appellate process takes in Jones v. Chappell, the stronger the capital defendant's claims become. That bit of irony aside, I am eager to hear from any infomed Ninth Circuit capital habeas practitioners or observers concerning what kind of timelines are likely in play now in Jones v. Chappell. Is this case likely to be fully briefed before the end of this year? Can/should we reasaonally expect oral argument to take place in the early part of 2015 and a ruling not long thereafter?
I ask these questions not only because I am genuinely wondering what kind of pacing we all should expect in this matter, but also because this case necessarily should impact any political plans that California death penalty supporters and opponents may have for the big looming 2016 election. Supporters of a more efficient and effective California death penalty system are already on record expressing interest in a voter initiative to reform the state's capital appellate process, and steadfast opponents of the death penalty also seem likely to eye a 2016 capital repeal initiative. Not just how, but also exactly when, the Ninth Circuit rules in Jones v. Chappell could greatly impact initiative planning and advocacy.
Recent related posts:
- Federal district judge declares California's death penalty unconstitutional under Eighth Amendment
- Lots of notable discussion of yesterday's notable decision striking down California's death penalty
- Furman and randomness (not just delay) at heart of California capital ruling
- Thoughtful Teague-based criticism of the remarkable California capital ruling in Jones v. Chappell
- California Attorney General seeking appeal in Jones v. Chappell capital case
Sunday, August 24, 2014
"Clemency and the Unitary Executive"
The title of this post is the title of this notable new paper by Rachel Barkow now available on SSRN. Here is the abstract:
President Obama’s use of enforcement discretion to achieve important domestic policy initiatives — including in the field of criminal law — have sparked a vigorous debate about where the President’s duty under the Take Care Clause ends and legitimate enforcement discretion begins. But even with broad power to set enforcement charging policies, the President controls only the discretion of his or her agents at the front-end to achieve policy goals. What about enforcement decisions already made, either by his or her own agents or actors in previous administrations, with which the President disagrees? The Framers anticipated this issue in the context of criminal law and vested the President with broad and explicit back-end control through the constitutional pardon power. But while centralized authority over enforcement discretion at the front-end has grown, the clemency power finds itself falling into desuetude.
This Article explores the fall of the clemency power and argues for its resurrection as a critical mechanism for the President to assert control over the executive branch in criminal cases. While clemency has typically been referred to as an exercise of mercy and even analogized to religious forgiveness, it also serves a more structurally important role in the American constitutional order that has been all but overlooked. It is a critical mechanism for the President to control the executive department. Those in favor of a unitary executive should encourage its more robust employment. But even critics of unitary executive theory should embrace clemency as a mechanism of control because, whatever the merits of other unitary executive claims involving military power or oversight over administrative agencies, clemency stands on different footing. It is explicitly and unambiguously grounded in the Constitution’s text, and it comes with an established historical pedigree. It is also a crucial checking mechanism given the landscape of criminal justice today. The current environment of overbroad federal criminal laws and excessive charging by federal prosecutors has produced a criminal justice system of unprecedented size and scope with overcrowded and expensive federal prisons and hundreds of thousands of individuals hindered from reentering society because of a federal record. Clemency is a key tool for addressing poor enforcement decisions and injustices in this system, as well as checking disparities in how different United States Attorneys enforce the law.
Friday, August 22, 2014
California Attorney General seeking appeal in Jones v. Chappell capital case
As reported in this Los Angeles Times piece, headlined "California AG Kamala Harris to appeal ruling against death penalty," the Ninth Circuit will now be called upon to consider the remarkable decision last month by U.S. District Judge Cormac Carney ruling that all of California's death penalty system is unconstitutional. The ruling in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here), has already generated lots of thoughtful discussion (as reflected in posts last month here and here), and now I suspect the case is going to generate lots of thoughtful amicus briefs on both sides.
For a host of reasons, I am not very surprised and I am very pleased that California AG Harris has decided to appeals the important and consequential ruling in Jones v. Chappell. The facts stressed and conclusions reached in that decision merit greater attention and scrutiny, and proceedings in the Ninth Circuit will help ensure the cases and its issues get a wider airing. Indeed, I would not be surprised if the Ninth Circuit ends up having both a regular panel and an en banc panel consider the issues in Jones v. Chappell all as a prelude to an (inevitable?) cert petition by the losing party on appeal. In other words, stay tuned death penalty followers.
Recent related posts:
- Federal district judge declares California's death penalty unconstitutional under Eighth Amendment
- Lots of notable discussion of yesterday's notable decision striking down California's death penalty
- Furman and randomness (not just delay) at heart of California capital ruling
- Thoughtful Teague-based criticism of the remarkable California capital ruling in Jones v. Chappell
"It’s Time to Overhaul Clemency"
The title of this post is the headline of this recent New York Times editorial. Though I wish the headline was something more like "Prez Obama sucks for failing to overhaul clemency during his six years on the job," I am glad to see the Grey Lady again spotlighting the Obama Administration's conspicuous failings to date in this arena. Here are excerpts:
On Jan. 20, 2009, in his last moments as president, George W. Bush gave Barack Obama a hard-earned bit of wisdom: whatever you do, he said, pick a pardon policy and stick with it.
It was sage advice, yet, more than five years later, President Obama has not heeded it. As a result, as one former pardon attorney has said, the clemency power is “the least respected and most misunderstood” power a president has. Yet it is granted explicitly by the Constitution as a crucial backstop to undo an unjust conviction or to temper unreasonably harsh punishments approved by lawmakers. It also can restore basic rights, like the right to vote, that many people lose upon being convicted.
In the past, presidents made good use of it, but as tough-on-crime policies became more popular, the number of grants fell dramatically. Judging by the numbers, Mr. Obama, who has, so far, granted just 62 clemency petitions, is the least merciful president in modern history.
The Obama administration took a stab at remedying the situation in April when it replaced its feckless pardon attorney and announced that it would consider granting clemency to thousands of low-level drug offenders serving what Mr. Obama called “unjust” sentences. The effort, dubbed Clemency Project 2014, was a promising start, but it has already run into significant hurdles, most recently a ruling barring hundreds of federal public defenders from assisting inmates in filing their petitions.
Even if the project succeeds, it is a one-time fix that fails to address the core reasons behind the decades-long abandonment of the presidential power of mercy. A better solution would be a complete overhaul of the clemency process. First and foremost, this means taking it out of the hands of the Justice Department, where federal prosecutors with an inevitable conflict of interest recommend the denial of virtually all applications. Instead, give it to an independent commission that makes informed recommendations directly to the president.
That proposal, which has been made before, gets new attention in an upcoming article in the University of Chicago Law Review by two law professors, Rachel Barkow and Mark Osler. Such a commission’s membership, the authors write, must be politically balanced and have a wide range of perspectives, including those of prosecutors, defense lawyers, judges, inmates, academics, officials from corrections and law enforcement, and victims’ rights advocates....
In several states that already have such commissions — such as Pennsylvania, South Carolina and Alabama — clemency decisions are more transparent, more predictable, and much more frequent than in the federal system.
Mr. Obama’s failure to wield the pardon power more forcefully is all the more frustrating when considered against the backdrop of endless accusations that he is exercising too much executive authority, sometimes — his critics say — arbitrarily if not illegally. In this case, he should take advantage of a crucial power that the Constitution unreservedly grants him.
A few of many recent and older posts concerning federal clemency practices:
- "How to Awaken the Pardon Power"
- ProPublica reveals more ugliness in federal clemency process
- "Clemency Reform: We're Still Waiting"
- New York Times editorial assails Prez Obama's considerable clemency failings
- Updated numbers on President Obama's disgraceful clemency record
- "White House Seeks Drug Clemency Candidates" ... like Weldon Angelos and Chris Williams?
- Justice Department formally announces its clemency initiative plans and guidelines
- How many of current federal prisoners satisfy all six of the new DOJ clemency guidelines?
- Curious DOJ clemency campaign continues through meeting with defense groups
- Defender hiccup or major headache for Clemency Project 2014?
- New commentary highlights why DOJ's new clemency initiative is not enough of a good thing
- "Restructuring Clemency: The Cost of Ignoring Clemency and a Plan for Renewal"
Thursday, August 21, 2014
Pennsylvania Superior Court upholds (most of) sentence requiring former state Supreme Court Justice to write apology
As reported in this local Pittsburgh Post-Gazette article, an intermediate state appellate court upheld most (but not quite all) of the notable sentencing terms imposed on former Pennsylvania Supreme Court Justice Joan Orie Melvin. Here are the basic details of a lengthy and interesting sentencing ruling:
The state Superior Court today affirmed the criminal conviction of former state Supreme Court Justice Joan Orie Melvin, as well as that of her sister, Janine Orie. The panel also affirmed the part of Melvin's sentence requiring her to send apology notes to her former staff and fellow judges in Pennsylvania, but it eliminated the requirement that she do so on a picture taken of her following sentencing in handcuffs.
"The trial court unquestionably staged the photograph for maximum effect," wrote Judge Christine Donohue. "At the time it was taken (immediately after sentencing), Orie Melvin was no longer in police custody and was otherwise free to go home to begin house arrest. She was not in restraints at that time, and the trial court directed that she be placed in handcuffs only to take the photograph.
"The trial court’s use of the handcuffs as a prop is emblematic of the intent to humiliate Orie Melvin in the eyes of her former judicial colleagues."
The Superior Court panel said it would enforce the idea of writing apology letters because, it "adresses the trial court’s intent to rehabilitate her by requiring her to acknowledge her wrongdoing."
As part of its 114-page opinion, the court also reversed the order of Common Pleas Judge Lester Nauhaus, who in November stayed Justice Melvin's criminal sentence in its entirety pending appeal.
Justice Melvin was found guilty of six of seven counts against her, including theft of services, conspiracy and misapplication of entrusted property. Judge Nauhaus ordered her to serve three years of house arrest, pay a fine, work in a soup kitchen and write the letters of apology.
Kentucky Supreme Court affirms that ineffective assistance of counsel waivers in plea agreements are ehtically suspect
Via an e-mail from the National Association of Criminal Defense Lawyer, I just learned of a notable new opinion from the Kentucky Supreme Court. Here is an excerpt from the NACDL's account of the ruling (as well as a link to the ruling):
In a landmark decision handed down today in U.S. v. Kentucky Bar Assn., the Supreme Court of Kentucky unanimously rejected a challenge by the federal government, by and through its federal prosecutors in that jurisdiction, to Kentucky Bar Association Ethics Opinion E-435, which states that the use of ineffective assistance of counsel (IAC) waivers in plea agreements violates Kentucky's Rules of Professional Conduct.
According to the court, this means that whether in state or federal court in Kentucky, "either defense counsel or prosecutors inserting into plea agreement waivers of collateral attack, including IAC, violates our Rules of Professional Conduct." The Court held that "the use of IAC waivers in plea agreements (1) creates a nonwaivable conflict of interest between the defendant and his attorney, (2) operates effectively to limit the attorney's liability for malpractice, (3) induces, by the prosecutor's insertion of the waiver into plea agreements, an ethical breach by defense counsel." The decision also relies on the McDade-Murtha Amendment (28 USC § 530B), which requires that federal prosecutors abide by state ethics laws. The National Association of Criminal Defense Lawyers (NACDL) advocated for passage of this important check on prosecutorial misconduct and has worked to defeat efforts to repeal or dilute the measure.
The Kentucky Bar Association adopted Ethics Opinion E-435 in late 2012, shortly after NACDL adopted Formal Opinion 12-02, cited in today's Kentucky Supreme Court decision. The NACDL opinion determined that it is not ethical for a criminal defense lawyer to participate in a plea agreement that bars collateral attacks in the absence of an express exclusion for prospective claims based on ineffective assistance of counsel. The NACDL opinion further states that prosecutors may not ethically propose or require such a waiver. It also describes an attorney's duty when the government attempts to extract such a waiver.
NACDL filed an important amicus curiae brief joined by numerous legal ethics professors and practitioners in U.S. v. Kentucky Bar Assn. and was also afforded the opportunity to present oral argument before the Supreme Court of Kentucky in this matter....
A link to the Supreme Court of Kentucky's decision in U.S. v. Kentucky Bar Association is available here.
A link to NACDL's Formal Opinion 12-02 is available here.
A link to NACDL's joint amicus curiae brief in U.S. v. Kentucky Bar Association is available here.
Wednesday, August 20, 2014
Detailing the significant increase in California lifers getting parole
This local article, headlined "Life with parole no longer means life term: Legal ruling causes steady rise in parole for California's lifers," highlights that parole has recently become a realistic possibility again for lifers in California. Here are the details:
Not so long ago, the conventional wisdom in legal circles was that any violent criminal sentenced to life with the possibility of parole in California wasn’t likely to ever walk out of prison. Whether that inmate had served the minimum on a term of 15 years to life or 25 years to life seemed inconsequential for many prisoners in the 1990s and early 2000s. In California, life meant life.
But that’s not the case anymore. In 2009, 221 lifer inmates were released from prison on parole, more than twice the number from the year before, according to the Governor’s Office. The numbers have steadily increased since then, reaching a high of 596 lifer inmates released on parole last year.
More than 2,200 inmates who had been serving life sentences in California have been paroled over the past five years, which is more than three times the number of lifers paroled in each of the previous 19 years combined.
Authorities say the higher numbers are primarily the result of a state Supreme Court decision in 2008 that set a new legal standard for the Board of Parole Hearings and the Governor’s Office to use when determining who is suitable for parole. That standard is focused not just on the circumstances of the inmate’s offense, but whether he or she poses a current threat to public safety. If not, the inmate may be released.
Despite speculation to the contrary, Gov. Jerry Brown’s office has stressed that lifer parole grants during his current administration have had nothing to do with a federal court mandate to reduce overcrowding in California’s prisons. “The prison population has no bearing on the governor’s decision to reverse or not act on a parole grant,” said Evan Westrup, a spokesman for Brown....
The spike in paroles came during Arnold Schwarzenegger’s term as governor, when the state’s high court established the standard by which a prisoner could be determined suitable for parole. Schwarzenegger, who was governor from 2003 to 2011, reversed more than 1,100 lifer parole grants during his time in office. One of them involved Sandra Davis Lawrence, who killed her lover’s wife in 1971. Her case went to trial in 1983. She was convicted of first-degree murder and sentenced to life in prison.
The Board of Parole Hearings determined in 2005 that Lawrence was suitable for parole based on several factors, including her efforts to rehabilitate herself in prison, her acceptance of responsibility for her crime and her close ties to her family. But Schwarzenegger found that Lawrence was not a good candidate for release based on “the gravity of the commitment offense,” according to court documents.
A three-judge panel of the state Supreme Court said that’s not good enough, explaining that parole could not be denied simply because the inmate’s offense was “heinous” or “cruel.” The key factor is whether that person remains a danger at the time parole is considered. “There has to be something more than just your crime was particularly atrocious,” said Jennifer Shaffer, executive officer of the Board of Parole Hearings. Denial can’t be based on “something you can’t change,” she said.
When the board denies parole for an inmate, that decision can be appealed, which results in a court-ordered hearing. In 2009, the first full year after the ruling, there were 263 court-ordered hearings spurred by appeals. “That is basically the court saying, ‘You got it wrong,’” she said. Last year, there were only 13 court-ordered hearings, which Shaffer said indicated the board had learned over time how to do a better job of applying the new standard. “The board, as a whole, learned with a lot of guidance from the court,” she said.
The Board of Parole Hearings issued 670 parole grants in 2012, and 590 in 2013, but some of those offenders may still be behind bars. Depending on factors specific to each case, it could take five months to several years for each prisoner to actually be released. State law bars the board from taking prison overcrowding into account when making its decisions. However, Shaffer said, there may be a perception that the issues are related because of the state’s efforts to comply with the federal court order.
Tuesday, August 19, 2014
Senator Whitehouse defends risk-assessment tools for some sentencing determinations
The New York Times today published this letter-response by Senator Sheldon Whitehouse to this recent NYT commentary expressing concern about the use of risj-assessment tools in sentencing decision making. Here is the full text of the published letter:
In “Sentencing, by the Numbers” (Op-Ed, Aug. 11), Sonja B. Starr highlights concern over judges’ use in sentencing of predictive tools to gauge an offender’s risk of recidivism. But let’s not overlook the important role that risk-assessment tools can play in helping identify the factors that make sentenced inmates more likely to commit crimes after they are released.
The most useful tools emphasize dynamic factors — those the inmate has the ability to change — including things like substance abuse, lack of education or antisocial attitudes.
States as different as Rhode Island and Kentucky have found that risk-assessment tools, when coupled with appropriate in-prison programs, can help inmates prepare to re-enter society with less likelihood that they’ll reoffend. That reduces spending on prisons, keeps us safer and also benefits the prisoners themselves.
Recent related posts:
- "Attorney General Eric Holder to Oppose Data-Driven Sentencing"
- Three distinct takes on AG Eric Holder's recent reservations about risk-based sentencing
Is an end to the modern drug war the only real way to prevent future Fergusons?
The question in the title of this post is prompted by this provocative new commentary by John McWhorter in The New Republic. The piece is headlined "There Is Only One Real Way to Prevent Future Fergusons: End the War on Drugs," and here are excerpts:
At times like this, with the raging protest in Ferguson, an implication hangs in the air that these events are leading somewhere, that things are about change. The saddest thing, however, is that this is, indeed, a “time like this” — one of many, before and certainly to come. It is impossible not to conclude that what happened to Michael Brown in Ferguson is now status quo, not a teaching lesson to move us forward....
We don’t know the details yet, but it’s apparent that, in spite of all we went through with [Trayvon] Martin so recently, in a clinch — the mean, messy place where these things always happen — the Ferguson cop Darren Wilson assumed that a big black guy was trouble, serious trouble, and shot him dead. It’s what happens in that clinch that matters, and we can now see that no amount of articulate protest can cut through such visceral human tendencies as bias and fear....
So, what will really make a difference? Really, only a continued pullback on the War on Drugs. Much of what creates the poisonous, vicious-cycle relationship between young black men and the police is that the War on Drugs brings cops into black neighborhoods to patrol for drug possession and sale. Without that policy — which would include that no one could make a living selling drugs — the entire structure supporting the notion of young black men as criminals would fall apart. White men with guns would encounter young black men much less often, and meanwhile society would offer young black men less opportunity to drift into embodying the stereotype in the first place.
But that’s the long game. In the here and now, we are stuck. Michael Brown was not “it.” The journalists assiduously documenting the events in Ferguson can serve as historians, but not as agents of change.
Recent related post:
Notable new follow-ups to recent ugly executions in Arizona and Ohio
Coincidentally, this week has brought two distinct follow-up article examining the backstories that may have contributed to two distinct ugly executions in Arizona and Ohio. The Arizona follow-up story comes via this new New York Times article headlined "Arizona Loose With Its Rules in Executions, Records Show," and it starts this way:
In an execution in 2010 in Arizona, the presiding doctor was supposed to connect the intravenous line to the convict’s arm — a procedure written into the state’s lethal injection protocol and considered by many doctors as the easiest and best way to attach a line. Instead he chose to use a vein in an upper thigh, near the groin. “It’s my preference,” the doctor said later in a deposition, testifying anonymously because of his role as a five-time executioner. For his work, he received $5,000 to $6,000 per day — in cash — with two days for practice before each execution.
That improvisation is not unusual for Arizona, where corrections officials and medical staff members routinely deviate from the state’s written rules for conducting executions, state records and court filings show. Sometimes they improvise even while a convict is strapped to a table in the execution chamber and waiting for the drugs coursing through his veins to take effect.
In 2012, when Arizona was scheduled to execute two convicted murderers, its Corrections Department discovered at the last minute that the expiration dates for the drugs it was planning to use had passed, so it decided to switch drug methods. Last month, Arizona again deviated from its execution protocol, and things did not go as planned: The convicted murderer Joseph R. Wood III took nearly two hours to die, during which he received 13 more doses of lethal drugs than the two doses set out by the state’s rules.
The Ohio follow-up story comes via this new New Republic article headlined "Exclusive Emails Show Ohio's Doubts About Lethal Injection: The state worried new drugs could make prisoners "gasp" and "hyperventilate" — and used them anyway." Here is how it gets started:
In July 23, Arizona took 117 minutes to execute a convicted murderer named Joseph Rudolph Wood III. It was not the nation’s first execution to last that long. In September 2009, Romell Broom entered the Ohio death chamber and exited two hours later still breathing — the only inmate in U.S. history to survive a lethal injection. The executioners had scoured his arms, legs, hands, and ankles for veins in which to stick their needles. But they repeatedly missed the vessels with the IVs. After at least 18 failures, Ohio had no choice but to cancel the execution.
In Wood’s execution, the trouble began when the drugs began to flow. Arizona’s executioners first injected Wood with a combination of midazolam and hydromorphone, two drugs they had never used before in an execution. When the first dose failed to stop his heart, the executioners administered a second. And then a third. The execution team injected 15 doses in total before a doctor finally pronounced death. An Arizona Republic reporter witnessing the execution said Wood gasped more than 640 times and that he “gulped like a fish on land.”
IDespite their different problems, the attempted execution of Broom and the execution of Wood are connected by more than just their lengths. Had executioners in Ohio been able to insert IVs into Broom’s veins, Wood’s execution might have gone much more smoothly. That’s because the Broom debacle led Ohio to write a “Plan B” for lethal injections, introducing into the death chamber for the first time the untested drugs Arizona would use years later to kill Wood. And emails I obtained from Ohio reveal some of the state's internal debates and concerns about these drugs—including fears that an inmate could “gasp” and “hyperventilate” as he died.
IDoctors warned from the beginning that midazolam and hydromorphone could create “a distasteful and disgusting spectacle.” And yet the drugs spread from Ohio across the country, revealing the lengths states will go to in order to carry out death sentences despite constant IV trouble, drug shortages, and problematic executions.
Monday, August 18, 2014
More evidence of the poor funtioning of California's crime-and-punishment policies and practices
Over the weekend, the Los Angeles Times published this lengthy and disconcerting article spotlighting yet another aspect of the mess that is California's current sentencing and corrections system. The piece is headlined "Early jail releases have surged since California's prison realignment," and here are some extended excerpts:
Jesus Ysasaga had been arrested multiple times and ordered by the court to keep away from his ex-girlfriend. Two parole boards sentenced him to nearly a year in jail for stalking, drunkenness and battery.
But the Fresno County jail would not keep him. Four times in the summer of 2012, authorities let Ysasaga go, refusing two times to even book him. The jail had no room. Ysasaga's attorney, Jerry Lowe, said the parade of convicted offenders being turned away from the jail was common. "It became quite a joke," he said.
Across California, more than 13,500 inmates are being released early each month to relieve crowding in local jails — a 34% increase over the last three years. A Times investigation shows a significant shift in who is being let out of jail, how early and where.
The releases spring from an effort begun in 2011 to divert low-level offenders from crowded state prisons to local jails. The move had a cascade effect, forcing local authorities to release their least dangerous inmates to make room for more serious offenders. "It changes criminal justice in California," said Monterey County Chief Deputy Edward Laverone, who oversees the jail. "The 'lock them up and throw away the key' is gone."
State and local officials say that they are making every effort to ensure the releases pose little danger to the public, freeing those believed to be the least risky convicts, usually parole violators and those convicted of misdemeanors. But an analysis of jail data has found that incarceration in some counties has been curtailed or virtually eliminated for a variety of misdemeanors, including parole violations, domestic violence, child abuse, drug use and driving under the influence.
In Los Angeles County, with a quarter of California's jail population, male inmates often are released after serving as little as 10% of their sentences and female prisoners after 5%. Fresno County logs show the jail is releasing criminals convicted of crimes that used to rate prison time: fraud, forgery and trafficking in stolen goods.
Law enforcement officials say that criminals have been emboldened by the erratic punishment. "Every day we get guys who show up in the lobby, stoned out of their minds," said one parole agent who did not want to be identified because he was not authorized to speak about the issue. "I'll have 15 arrested, and 12 to 14 will be released immediately."...
For law enforcement agents, the jailhouse revolving door is frustrating.
Leopoldo Arellano, 39, was in and out of custody at least 18 times from 2012 to 2014 for violating parole, criminal threats and at least four incidents of domestic battery, according to Los Angeles County jail logs. San Diego County let parolee Demetrius Roberts go early 12 times; mostly for removing or tampering with his GPS tracker, which he was required to wear as a convicted sex offender.
In Stockton last year, a furor erupted over the repeated releases of Sidney DeAvila, another convicted sex offender. He had been brought to the San Joaquin County jail 11 times in 2012 and 2013 for disarming his GPS tracker, drug use and other parole violations.
He was freed nearly every time within 24 hours, even when he was brought to the jail by the state's Fugitive Apprehension Team. Days after being let out early in February 2013, DeAvila went to his grandmother's house, raped and killed the 76-year-old woman, then chopped her body into pieces. He was found later that day with the woman's jewelry around his neck....
The problem stems from the huge increase in the number of state prisoners over the last four decades, spurred by increasingly harsh sentencing laws passed during the war on drugs. Felons could serve decades behind bars for repeat convictions of drug use and other nonviolent crimes. From a relatively stable population of less than 25,000 in the 1970s, the number of state prisoners rose to a high of 174,000 in 2007.
Crowding reached dangerous levels, leading federal judges to rule in 2009 that the conditions were unconstitutional. When Gov. Jerry Brown took office in 2011, the state was under orders to cap prison counts at 110,000.
Brown's solution, called "realignment," shifted the responsibility for parole violators and lower-level felons to the counties, putting inmates closer to home and potentially improving their prospects for rehabilitation. Lawmakers tried to ease the load on counties by expanding credits for good behavior and jailhouse work, cutting most sentences in half. Even with that, state officials concede, they knew jails did not have enough room.
The shift flooded county jails, many of which already were freeing convicted offenders under a melange of local court rulings, federal orders and self-imposed caps. "If you've got a prison population and a jail population, if you're going to release anywhere, you might better release at the lower level," said Diane Cummins, Brown's special advisor on realignment and criminal justice policy.
The number of prisoners released from county jail because of crowding has grown from an average of 9,700 a month in 2011 to over 13,500 a month today, according to state jail commission figures. In October, those records show releases surged to over 17,400.
Jailers are struggling to decide whom to let go.... Kern County Sheriff's Lt. Greg Gonzales said the jail he manages hits its maximum capacity two or three times a week. When that happens, inmates must go, 20 to 30 at a time. Parolees and those who have served the most time on their sentences leave first. Those who have committed violent crimes or molested a child stay the full term. The county is experimenting with a risk-assessment system that tries to gauge the likelihood an offender will commit future crimes. Gonzales does not pretend the decisions are foolproof. "Every release is a bad release," he said. What happens after "is a crap shoot."...
Law enforcement authorities and other officials say that releasing prisoners has raised safety issues, although there have been no studies on the effect. At a shelter for battered women in Stanislaus County, where the jail releases more than 500 inmates early each month, caseworkers are convinced that decreasing sentences has emboldened abusers....
Time served varies considerably around the state — a situation that UC Berkeley law professor Barry Krisberg called "justice by geography." That is especially true for parole violators, who used to serve their time in state prison. Now they are locked up in jails and are frequently the first to be released, or not booked at all....
Krisberg said stopping the early releases would require a fundamental change in California's criminal justice system. Just "shifting the location of incarceration" from prisons to jails doesn't change much, he said.
The Little Hoover Commission, an independent state policy agency that released a report last year that was critical of early releases, has recommended that California reform its complex sentencing laws, which have overwhelmed prisons with long-term inmates.
The commission has also recommended reducing bail so more inmates can afford to leave. State records show nearly two-thirds of the space in county jails is occupied by suspects awaiting trial. But even political supporters of such reforms say the issue is an electoral land mine likely to stir campaign accusations of being soft on crime.
Sheriffs have launched their own silent reform by letting out prisoners when there is no room. "We actually have a de facto sentencing commission in our sheriffs," said Carole D'Elia, acting executive director of the Little Hoover Commission. "You have a crazy system of 'Is the jail full today?' "
San Joaquin County Superior Court Judge Richard A. Vlavianos said that allowing jailers to override judges "does nothing but undercut integrity.… It loses public confidence. You lose integrity with the defendants. All the way around, it is a bad thing," he said.
As I have commented before and will say here again, this mess is the obvious by-product of California policy-makers failing to deal proactive with sentencing and corrections problems for decades. Nearly a decade ago, as noted in this long-ago post, Governor Arnold Schwarzenegger proclaimed a state of emergency because extreme prison overcrowding "created a health risk and 'extreme peril' for officers and inmates." He also called the the California legislature into special session in Summer 2006 to address critical prison crowding and recidivism issues. But, thanks to California's dysfunctional politics, nothing much got done. Similarly, smart folks have been urging California to create a sentencing commission to help deal with these issues, but California's dysfunctional politics again brought down a number of potentially sensible proactive reforms.
Now the price of all the avoidance is finally coming due, and the result seems pretty ugly on all fronts. But, sadly, I fear that precious few of the folks who should pay a political price for all this political dysfunction will in the end pay any real political price. Sigh.
Intriguing account of how Pittsburgh police undermined local crime-fighting efforts
This new article from the Pittsburgh Post-Gazette provide a disconcerting account of how local police can undermine efforts to reduce local crime. The piece is headlined "Professor: Lack of cooperation marred success of Pittsburgh crime-fighting initiative," and here are excerpts:
It was one of the most embarrassing moments of David Kennedy’s career. Mr. Kennedy, a professor at the John Jay College of Criminal Justice at the City University of New York who has spent two decades studying crime and policing and worked with hundreds of departments across the country, was brought to Pittsburgh in 2008 by then-Mayor Luke Ravenstahl to help launch an initiative that has been credited with stemming killings in Cincinnati, Boston, Chicago, New Orleans, Philadelphia and elsewhere.
“It is the most effective intervention with respect to gun violence or homicide that we have in any portfolio,” said Mr. Kennedy, also an author and co-chairman of the National Network for Safe Communities, an initiative of John Jay’s Center for Crime Prevention and Control. “This works better than everything.”
Part of implementing the Pittsburgh Initiative to Reduce Crime — a combination of outreach to gangs and other violent groups, a swift police crackdown on group members when shootings happen and the provision of social and job-related services to offer members a way out — required mining the knowledge of veteran street officers to identify the people most likely to become victims or perpetrators of shootings.
A team from the University of Cincinnati was brought in to spend a few days with those police officers to map out the city’s violence-prone populations, but the team was sent packing in short order after the police refused to share information, Mr. Kennedy said. “I set this thing up and wound up with my face planted in the mud,” he said, calling it an unprecedented level of resistance that command-level officers orchestrated.
A 2011 city-commissioned report on PIRC that the University of Pittsburgh conducted also found the police largely ignored the Cincinnati academics’ research, which identified 35 “violent groups” in Pittsburgh and determined 69 percent of the city’s homicides from 2007 to early 2010 were “group-related.”
“The Pittsburgh police department was absolutely the most condescending and aggressively uncooperative agency I have encountered,” he said. “They would not share information; they would not provide information. They would not allow any outsiders in.” It made no difference that PIRC was a mayoral initiative with hundreds of thousands of dollars in City Council funding. “They actively rejected it and made no secret of that,” Mr. Kennedy said. “My read on this was the police bureau saying, ‘City Hall is trying to tell us what to do, and we’re not going to do it.’ And they won that fight.”
Not long after, Mr. Kennedy gave up. “I said to them, ‘This is a sham. I’m not going to be involved in it anymore,’” he said. Ever since, PIRC has failed to fulfill its potential to reduce the number of bodies hitting city streets, though it has had some success in connecting people with job services and education, said City Councilman Ricky Burgess, who helped bring the program to the city.
“We’re losing lives because the police do not want to make preventing homicides by gaining community confidence its primary concern,” he said, noting that the Allegheny County Department of Human Services embraced many of the same principles Mr. Kennedy promoted in a June report. “We need a philosophical change in the way the city of Pittsburgh police operates.”
Two weeks ago, Mayor Bill Peduto, who was elected last year, and his new public safety director, former Pennsylvania state trooper and FBI special agent Stephen Bucar, were flanked by acting police Chief Regina McDonald at a news conference to address a spike in killings.... PIRC was barely mentioned during the news conference, during which most of the focus was on 13 new officers assigned to walk beats in Homewood and other East End neighborhoods, three more detectives moving to the bureau’s homicide division and the role of the community in reporting crime and coming forward as witnesses....
Sonya Toler, the city’s public safety spokeswoman, refused requests to interview Chief McDonald, former Public Safety Director Mike Huss, who remains on the city payroll, and Deputy Chief Paul Donaldson about PIRC. Jay Gilmer, PIRC’s civilian coordinator and sole employee, who is paid about $49,000 a year, referred all questions to Ms. Toler, who said some of the past friction was the result of restrictions on sharing information outside of law enforcement circles. She said while it “may be true” that police resistance stifled PIRC’s effectiveness, dwelling on the past won’t make the program better in the future....
The mayor and Mr. Bucar have said they favor revamping PIRC, with Mr. Bucar pledging during his council confirmation hearing that the police “will become engaged” in the program. Mr. Bucar has assigned Officer Michelle Auge to be his liaison to the police bureau, which will include PIRC work, in a move that is already yielding results, Ms. Toler said....
Whatever happens, the existing Pittsburgh program needs more than a tweak, Mr. Kennedy said. “They need to blow it up and start all over again,” he said. “PIRC did not fail because it won’t work in Pittsburgh. PIRC failed because the police bureau failed to let it succeed.”
Saturday, August 16, 2014
Texas Gov Rick Perry facing two felony charges carrying significant mandatory minimum prison terms
I know very little about Texas criminal laws and procedures, and I know even less about the political and legal in-fighting that appears to have resulted in yesterday's remarkable indictment of Texas Gov Rick Perry on two state felony charges. But I know enough about mandatory minimum sentencing provisions to know Gov Perry might be looking a significant prison time if he is convicted on either of these charges. This lengthy Dallas Morning News article, headlined "Gov. Rick Perry indicted on charges of abuse of power, coercion," provides some of the political and legal backstory (as well as a link to a copy of the two-page indictment):
Republican Rick Perry, becoming the first Texas governor indicted in almost a century, must spend the final five months of his historically long tenure fighting against felony charges and for his political future. A Travis County grand jury on Friday charged Perry with two felony counts, abuse of official capacity and coercion of a public servant, after he vetoed funding for a county office that investigates public corruption.
Special prosecutor Michael McCrum of San Antonio said he felt confident in the case against Perry and was “ready to go forward.” Perry made no statement, but his general counsel, Mary Anne Wiley, said he was exercising his rights and power as governor. She predicted he would beat the charges. “The veto in question was made in accordance with the veto authority afforded to every governor under the Texas Constitution. We will continue to aggressively defend the governor’s lawful and constitutional action, and believe we will ultimately prevail,” she said.
The charges set off a political earthquake in the capital city. Democrats said the indictment underscores Perry’s insider dealing and he should step down. Republicans called it a partisan ploy to derail him, especially aimed at his second presidential run that had been gathering momentum.
The case stems from Perry's erasing $7.5 million in state funding last year for the Travis County Public Integrity Unit. He did so after District Attorney Rosemary Lehmberg, a Democrat, rejected his calls to resign after her drunken driving conviction.
Perry could appear as early as next week to face arraignment on the charges. Abuse of official capacity is a first-degree felony with punishment ranging from five to 99 years in prison, and coercion of a public servant is a third-degree felony with a penalty of two to 10 years.
In announcing the indictment, McCrum said he recognized the importance of the issues at stake. “I took into account the fact that we’re talking about the governor of a state and the governor of the state of Texas, which we all love,” he said. “Obviously, that carries a level of importance. But when it gets down to it, the law is the law.”...
The allegations of criminal wrongdoing were first filed by Craig McDonald, director of the nonprofit campaign watchdog group Texans for Public Justice. McDonald has maintained that using veto threats to try to make another elected official leave was gross abuse of office. “The grand jury decided that Perry’s bullying crossed the line into lawbreaking,” he said Friday. “Any governor under felony indictment ought to consider stepping aside.”
State Republican Party chairman Steve Munisteri decried the prosecution as politically motivated. “Most people scratch their heads and wonder why we’re spending taxpayer dollars to try to put somebody in jail for saying that they didn’t feel it was appropriate to fund a unit where the person in charge was acting in a despicable way,” Munisteri said....
A judge from conservative Williamson County, a suburban area north of Austin, appointed McCrum to look into the case. The current grand jury has been studying the charges since April. McCrum worked for 10 years as a federal prosecutor, starting during President George H.W. Bush’s administration. He’s now in private practice, specializing in white-collar crimes....
McCrum, a former federal prosecutor, said he interviewed up to 40 people as part of his investigation, reviewed hundreds of documents and read dozens of applicable law cases. He dismissed the notion that politics played any part. “That did not go into my consideration whatsoever,” he said. Asked why he never called Perry before the grand jury, McCrum said, “That’s prosecutorial discretion that I had.”
Of course, what makes this story so very notable from a criminal justice perspective is the extraordinary power and discretion that the special prosecutor had in developing these charges and the extraordinary impact that mere an indictment seems likely to have on Gov Perry professional and personal life.
Regular readers know that former commentor Bill Otis and I often went back-and-forth in the comments concerning my concerns about (and his support for) federal prosecutors have very broad, unchecked, hidden and essentially unreviewable charging and bargaining powers. For this reason, I was especially interested to see that Bill now already has these two new posts up over at Crime and Consequences assailing the charging decision by the (former federal) prosecutor in the Perry case: The World's Most Absurd Indictment and Politics & Prosecution, a Toxic Brew. I am hopeful (though not really optimistic) that the Perry indictment might help Bill better appreciate why I have such deep concerns about prosecutorial discretion as exercised by federal prosecutors (especially when their powers are functionally increased by severe mandatory minimum sentencing provisions).