Thursday, April 18, 2013

"Race and the Disappointing Right to Counsel"

The title of this post is the title of this notable new article by Gabriel (Jack) Chin now available via SSRN. Here is the abstract:

Critics of the criminal justice system observe that the promise of Gideon v. Wainwright has been unfulfilled.  They decry both the inadequate quality of representation available to indigent defendants, and the racially disproportionate outcome of the process.  Some hope that better representation can help remedy the gross overrepresentation of minorities in the criminal justice system.  This essay is doubtful that better lawyers will significantly address that problem.

When the Supreme Court decided Gideon, it had two main purposes.  First, it intended to protect the innocent from conviction.  This goal, while imperfectly achieved at best, was explicit.  Since Gideon, the Court has continued to recognize the importance of claims of innocence at trial, with important, pro-defense decisions in the areas of confrontation, jury fact-finding, the right to present a defense and in other areas.

The Court's second goal was to protect African Americans subject to the Jim Crow system of criminal justice.  But, as it had in Powell v. Alabama, the Court pursued this end covertly and indirectly; the Court attempted to deal with racial discrimination without explicitly addressing it.  This timidity was portentous.  Gideon did not mark the beginning of a judicial project to eliminate race from the criminal justice system root and branch; three years after Gideon, the Court allowed prosecutors to exercise peremptory challenges of jurors based on race.  Since Gideon, the Court has made it practically impossible to invoke racial bias as a defense; so long as those charged are in fact guilty, discrimination in legislative criminalization, in enforcement and in sentencing practices are essentially unchallengeable.

Since Gideon, racial disproportionality in the prison population has increased.  Not only might Gideon not have solved the problem, it may have exacerbated it.  To the extent that Gideon improved the quality of counsel available to the poor, defense lawyers may be able to obtain favorable exercises of discretion in investigation, prosecution and sentencing for indigent white defendants that they cannot for clients of color.  For these reasons, racial disparity likely cannot be remedied indirectly, with more or better lawyers. Instead, the remedy lies in directly prohibiting discrimination, and having fewer crimes on the books, fewer arrests, and fewer prosecutions.

I am very pleased to see Jack Chin's willingness to note not only that Gideon may not have solved the problem of a racialized criminal justice system, but even that Gideon "may have exacerbated it."  In many ways, Jack's piece here is another articulation of this recent provocative New York Times op-ed by Paul Butler last month, headlined "Gideon’s Muted Trumpet," which highlighted various ways in which the modern criminal justice evolved for the worse during half century after Gideon became the law of the land.  And I echoed another variation on these ideas when I asked in this post, "Did Gideon enable the war on drugs, the sentencing severity revolution and modern mass incarceration?."

I do not surmised that Jack or Paul are saying, and I know that I am not saying, that Gideon was wrongly decided or that our current criminal justice system would be better without Gideon.  But I do think we are all eager to encourage reflection on the reality that there may be a lot more wrong with our modern criminal justice systems than poor funding and poor functioning of some defense lawyers. 

Recent related posts:

April 18, 2013 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1) | TrackBack

"What if NY invested more in dairy farms and less in prisons?"

Milknotjails4The question in the title of this post is the headline on this story from a public radio station in upstate New York, which is part of "a series on current issues and the future of dairy in the North Country." (In addition to liking the milky pictures that go with this story, I like having new proof that even the price of ice cream and cow-tipping have a link to sentencing law and policy.) Here is how the text with the piece starts:

There are more than a dozen state and Federal prisons in the [North Country] region, along with eleven county jails. That makes corrections work one of our top employers.

One activist group based in Brooklyn thinks these two issues -- prison jobs and the dairy industry -- should be linked in people's minds, as we think about ways to grow the rural economy.  That group's called "Milk Not Jails."...

This whole project, Milk Not Jails, is the brainchild of Lauren Melodia, who lives in Brooklyn and has spent the better part of a decade trying to connect upstate and downstate communities around the question of how their economies interact.  She says she was working in an urban neighborhood trying to raise awareness about food issues, and prisons just kept coming up.

"The community that I was trying to bring fresh food into had very little access to fresh produce," Melodia says.  "And oftentimes we would take bus trips up to the farm where we received our produce from.  And a lot of the people on the bus would say that they'd never been upstate except to visit someone in prison."

Melodia also spent a year in Ogdensburg and Canton, trying to make connections in the North Country that would begin to open a new conversation about how prisons shape lives. "I was in Ogdensburg at the same time that Governor David Paterson was considering closing Ogdensburg Correctional Facility.  And people refer to the Ogdensburg and Riverview correctional facilities as the last factories in town.  That's absolutely real for people."

Lauren Melodia ... thinks New York state should invest more money in dairy farms and agriculture -- and less money locking up prison inmates, especially low-level and non-violent offenders.  "There's all this spin-off economic activity that goes hand-in-hand with agriculture.  You have processing, you have distribution, you have tourism.  We can't say the same thing for prisons.  They don't have that kind of economic growth opportunity."...

"The guards' union and the politicans who represent them oppose major reforms that could make the system work better and prevent people from going to prison in the first place. Why? They're worried that it could create job loss in their community."  That message is a tough sell in communities, like Ogendsburg, that rely on corrections jobs. 

Melodia says Milk Not Jails met yesterday in Albany with the staff of North Country Senator Patty Ritchie.  Melodia says lawmakers are open to the discussion of boosting dairy and agriculture. But talk of closing more prisons? That doesn't go over so well.

"I understand that the crisis at this point is that these are the last factories in town and we can't get rid of them," she says. "What we're trying to do is build some kind of long-term planning in the communities where these prisons are housed so there's not that dependency."

April 18, 2013 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Obama Administration still talking up, but still not heavily investing in, drug courts

A corollary to the classic wisdom "follow the money" is the admonition "put your money where you mouth is." These phrase came to mind for me as I read the text of this speech by Acting Assistant AG Mary Lou Leary given today at the National African American Drug Policy Coalition National Spring 2013 Summit. These passages from the speech, in particular, reinforced my concern that the Obama Administration is still doing a great job of talking the talk, but still is not really walking the walk, in its support of drug courts:

[W]hen it comes to drugs, we know that the only way the justice system is going to realize its full potential as a problem solver is by using its authority to encourage and support treatment. And there’s no better illustration of how this can work than the drug court.

Drug courts use the authority of the judicial system to bring together criminal and juvenile justice agencies and social service and treatment providers to deal with the underlying causes of addiction in drug-involved offenders. In other words, it’s court-sanctioned and court-supported treatment. There are more than 2,600 drug courts in operation across the country, and our research shows that they’re effective in reducing recidivism, decreasing future drug use, and saving money.

Our challenge is to expand the drug court approach. Right now, they serve some 120,000 people, but that’s only a fraction of the 1.2 million non-violent drug offenders now in the system.  At the Office of Justice Programs, we’re continuing a proud tradition of supporting drug courts, going back to my early days at the agency under Attorney General Janet Reno, who started the first drug court program in Miami.  Continuing her legacy, last year our Bureau of Justice Assistance awarded 60 grants totaling almost $18 million to fund drug courts.

We’re also supporting the development and expansion of juvenile and family drug courts. Young drug-involved offenders can really benefit from the treatment, support, and accountability that drug courts provide, and families where children live with substance abusing parents can begin the process of stabilization through the drug court model.

I’m pleased the President’s budget to Congress requests $44 million to continue supporting drug courts and other problem-solving courts modeled on drug court principles.

I am pleased to hear continued promotion of drug courts by the Obama Administration because of the research that "shows that they're effective in reducing recidivism, decreasing future drug use, and saving money." But I am not pleased to here that the President's budget to Congress only requests $44 million to continue supporting drug courts and other problem-solving courts. The President's FY2014 budget calls for about $3.8 trillion, so a request of $44 million for drug courts amounts to, roughly,  around 0.0001% of the total budget.

I know I should not look a drug court budget gift horse in the mouth especially in these lean budget times.  But I still cannot help but wish this gift horse was larger given that research shows that drug courts are "effective in reducing recidivism, decreasing future drug use, and saving money."

April 18, 2013 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

"Justice Reinvestment in Action: The Delaware Model"

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

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

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

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

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

Some older and more recent related posts:

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

"Hustle and Flow: Prison Privatization Fueling the Prison Industrial Complex"

The title if this post is the title of this paper by Patrice Fulcher recently posted on SSRN.  Here is the abstract:

The Prison Industrial Complex (“PIC”) is a profiteering system fueled by the economic interests of private corporations, federal and state correctional institutions, and politicians.  The PIC grew from ground fertilized by an increase in the U.S. prison population united with an economically depressed market, stretched budgets, and the ineffective allocation of government resources.  The role of the federal, state, and local governments in the PIC has been to allocate resources.  This is the first of a series of articles exploring issues surrounding the PIC, including (1) prison privatization, (2) outsourcing the labor of prisoners for profit, and (3) constitutional misinterpretations.

The U.S. prison population increased in the 1980s, in part, because of harsh drug and sentencing laws and the racial profiling of Blacks.  When faced with the problem of managing additional inmates, U.S. correctional institutions looked to the promise of private prison companies to house and control inmates at reduced costs.  The result was the privatization of prisons, private companies handling the management of federal and state inmates.

This Article addresses how the privatization of prisons helped to grow the PIC and the two ways in which governments’ expenditure of funds to private prison companies amount to an inefficient allocation of resources: (1) it creates an incentive to increase the prison population, which led to a monopoly and manipulation of the market by Correction Corporation of America (“CCA”) and The GEO Group, Inc. (“GEO”), the top two private prison companies, and (2) it supports the use of Blacks as property, which in turn prevents Blacks from participating in future economic activities because they are labeled as felons.

This Article first discusses how the increased prison population led to the allocation of government resources to prison privatization. Second, it establishes how funding private prison companies helped to develop the PIC into an economic, for-profit “hustle” for the involved partners and stakeholders, herein after referred to as players.  Third, it makes it easy to see the “flow” of inequities stemming from the “hustle” and how they are the result of inefficient allocation of government resources.  Finally, in order to stop the “hustle” and change the “flow” of inequities, this Article calls for a moratorium on the privatization of U.S. prisons, the end of private prison companies, and a change in drug sentencing laws in order to reduce the prison population.

Some related posts about private prisons: 

April 18, 2013 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, April 17, 2013

If (and when?) confirmed, will Judge William Pryor champion federalism concerns within the US Sentencing Commission?

CoverAs reported in this post yesterday, President Obama officially nominated three new persons to serve on the US Sentencing Commission:

Notably, the comments to my prior post already include a variety of (not-always-informed) perspectives on these nominations.  As I suggested in my prior post, I am a big fan of these nominees, in part because of their diverse backgrounds and professional history and in part because I have interacted with them all personally and been consistently impressed by their insights.

Some comments to the prior post direct particular criticism directed toward Judge Pryor, perhaps because he was a controversial figure when appointed to the bench by President Bush.  I submit that, in this context, any assessment of Judge Pryor would be premature unless and until one has read Judge Pryor's own recent account of his history with sentencing and his perspective on the federal sentencing system.  That account appeared in the Spring 2011 issue of my own Ohio State Journal of Criminal Law as William H. Pryor Jr., Federalism and Sentencing Reform in the Post-Blakely/Booker Era, 8 Ohio St. J. Crim. L. 515 (2011).

I recommend that all sentencing fans read the entire OSJCL article by Judge Pryor.  These passages from the article's introduction should help explain the question in the title of this post (and perhaps also help account for why I hope all new nominees to the USSC get confirmed and get started ASAP):

During my tenure as a state attorney general from 1997 to 2004, I considered myself a sentencing reformer.  My office drafted and successfully lobbied for the legislation that created the Alabama Sentencing Commission. Before my term as attorney general ended, the Commission began its long-term campaign to dismantle a regime of explosive growth in the prison population, disparities and dishonesty produced by indeterminate sentencing, and a system of corrections that offered few alternatives to incarceration as a form of punishment.  Our hope was to create over time a system of voluntary sentencing guidelines to the end that criminal sentencing in Alabama could be made honest, fair, and rational.

My contributions to sentencing reform in Alabama ended in February 2004, when President George W. Bush appointed me first to serve temporarily as a circuit judge on the United States Court of Appeals for the Eleventh Circuit and later to a term of good behavior, which was confirmed by the Senate in 2005.  In the meantime, the theater of sentencing changed dramatically — both for the states and the federal government — when the Supreme Court decided Blakely v. Washington in 2004 and United States v. Booker in 2005. I have had a front row seat as this play unfolded.

Although I consider myself a generalist in the performance of my public service, my experiences over the last dozen years have given me a comparative perspective of sentencing guidelines and scholarship.  Over the last several years, I have participated in the adjudication of hundreds of federal appeals of criminal convictions and sentences and the collateral review of hundreds of state convictions and sentences.  I have followed the successful, but often ignored, efforts of state sentencing commissions and reform movements and served as part of the members' consultative group of the revision of the sentencing provisions of the Model Penal Code.  I also have read scholarship about and discussed with colleagues the widespread dissatisfaction with the federal sentencing guidelines....

I also have a perspective of federalism, shaped by my experience as a state attorney general, federal judicial servant, and teacher of federal jurisdiction, that a structural problem underlies the current challenges to federal and state sentencing reform.  This structural problem involves the federalization of crime.  In the spirit of making a modest contribution to the vision of the great reformer, Judge Frankel, I submit that sentencing commissions and lawmakers should consider this structural problem and together find creative solutions to the current challenges for sentencing reform.

My hope for sentencing reform is rooted in a respect for federalism, a venerable feature of the American constitutional order.  Restoring some respect for federalism in criminal law might help bridge the political divide between the left and the right, the judicial divide between formalists and pragmatists, and the sentencing divide between individual sentencing and consistency in sentencing.  To restore respect for federalism, we must reverse the federalization of crime.

April 17, 2013 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Two big significant states perhaps on track join growing ranks legalizing medical marijuana

As I have hinted in prior posts, I think it could become a very big deal if (and when?) a majority of US states have formally legalized medical marijuana — especially if (and when?) a number of jurisdictions have also legalized recreational marijuana use and the majority of Americans become accustomed to seeing legitimate "pot shops" in their communities.  Consequently, these new stories today strike me as especially notable and significant:

If it is only a matter of time before there are state-legalized marijuana sales in Chicago, Manhattan and our Nation's capitol, then I think it will only really be a matter of a little more time before marijuana is legal (or at least decriminalized) in the entire country.

April 17, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1) | TrackBack

In divided ruling, SCOTUS embraces (fuzzy?) standard rather than per se rules for DUIs and blood tests

The Supreme Court this morning handed down a notable, and notably divided, Fourth Amendment ruling in Missouri v. McNeely, No. 11-1425 (S. Ct. April 17, 2013) (available here). This accounting of the votes and opinions highlights why it likely will not be easy to figure out right away just what McNeely really means:

SOTOMAYOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, in which SCALIA, KENNEDY, GINSBURG, and KAGAN, JJ., joined, and an opinion with respect to Parts II–C and II, in which SCALIA, GINSBURG,and KAGAN, JJ., joined. KENNEDY, J., filed an opinion concurring in part. ROBERTS, C. J., filed an opinion concurring in part and dissenting in part, in which BREYER and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion.

I will leave it to Fourth Amendment gurus to tell me whether there is as much of interest in the substance of McNeely as there is in the voting blocks.  And speaking of substance, here is how the main opinion of Justice Sotomayor gets started:

In Schmerber v. California, 384 U. S. 757 (1966), this Court upheld a warrantless blood test of an individual arrested for driving under the influence of alcohol because the officer “might reasonably have believed that he was confronted with an emergency, in which the delay neces­sary to obtain a warrant, under the circumstances, threat­ ened the destruction of evidence.”  Id., at 770 (internal quotation marks omitted).  The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant require­ment for nonconsensual blood testing in all drunk-driving cases.  We conclude that it does not, and we hold, con­sistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances.

In the context of the Fourth Amendment (and many other criminal procedure contexts), I  typically see the embrace of multi-factor standards rather than bright-line rules to be better for defendants (and especially their lawyers) than for police and prosecutors.  In turn, the voting blocks here in McNeely reinforce my sense (1) that Justices Ginsburg, Kagan and Sotomayor are very often going to vote together in criminal procedure cases, and (2) that, at least in pre-trial procedure settings, Justice Scalia may often be a more consistent pro-defendant vote than either Justice Breyer or Justice Kennedy.

April 17, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

"Ending Mass Incarceration: Charting a New Justice Reinvestment"

Charting a New Justice ReinvestmentThe title of this post is the title of a notable new "paper co-authored by a group of researchers, analysts, and advocates dedicated to ending mass incarceration in the U.S."  The full 36-page report is available at this link, and this webpage provides an overview of the contents.  Here are some of the basics:

Justice Strategies Director, Judith Greene, has co-authored Ending Mass Incarceration: Charting A New Justice Reinvestment, with Vanita Gupta and Kara Dansky of the American Civil Liberties Union, Malcolm Young of Northwestern University Law School's Bluhm Legal Clinic, James Austin of the JFA Institute, Eric Cadora of the Justice Mapping Center, Todd Clear of Rutgers University, Marc Mauer and Nicole Porter of The Sentencing Project, and Susan Tucker, the former Director of The After Prison Initiative at the Open Society Foundations.

The paper traces the history and examines the impact of Justice Reinvestment (JR) since its inception a decade ago to its current incarnation as a national initiative.

The primary conclusion is that while JR has served to soften the ground for criminal justice reform, it has not achieved significant reductions in the correctional populations or costs in most of the states in which it has been conducted. This is in contrast to its original intent: to reduce corrections populations and budgets and reinvest in high incarceration communities to make them safer, stronger, and more equitable.

As originally conceived, Justice Reinvestment called for the reduction of corrections populations and budgets to generate savings that would be reinvested in high incarceration communities to improve public safety, and reverse the destructive effects of mass incarceration and harsh punishment visited disproportionately upon individuals and communities of color.

As implemented through legislation in 18 states, the Justice Reinvestment Initiative has helped stabilize corrections populations and budgets, educate state legislators and public officials about the expense of correctional system, and persuade them to undertake reforms, but it runs the risk of institutionalizing mass incarceration at current levels.

April 17, 2013 in Pot Prohibition Issues, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Noteworthy new lawyer and now a new judge for Jesse Jackson Jr. sentencing

This new Chicago Tribune article, headlined "For sentencing, Jacksons get new judge named Jackson," reports on some notable pre-sentencing developments in the run up to a high-profile federal sentencing scheduled for later this year. Here are the basics:

The felony cases of former Rep. Jesse Jackson Jr. and his wife, former Chicago Ald. Sandi Jackson, have been assigned to a new judge — named Jackson.

Court papers filed Tuesday moved the cases to U.S. District Judge Amy Berman Jackson, but did not explain why the judge who accepted the Jacksons' guilty pleas, Robert Wilkins, would not be the one to sentence them this summer.

Harvard law professor Charles Ogletree Jr., who recently joined Jesse Jackson Jr.'s legal team, told the Tribune that Wilkins is a former law student whom he knows well, and that Wilkins may have recused himself out of caution.

Ogletree said he joined Jackson Jr.'s team on a pro bono basis and will appear at his sentencing June 28. He said he was not involved in the defense of Sandi Jackson, who will be sentenced July 1.

Under sentencing guidelines, the former congressman faces 46 to 57 months in prison and Sandi Jackson one to two years. The pair pleaded guilty in separate cases in the U.S. District Court for the District of Columbia after Jackson Jr. looted his campaign treasury of more than $750,000 and Sandi Jackson failed to report on joint tax returns about $600,000 in income.

Ogletree, when asked what would be a fair sentence for Jackson Jr., would not say whether that involved prison time but argued that he deserved a "second chance." He said he thought any judge will look not only at the guidelines but at Jackson Jr.'s record of public and community service and work with seniors and young people.

Ogletree, a longtime acquaintance of the Rev. Jesse Jackson Sr., the civil rights leader, said the case was not about the father but about his son, who is "a young man in a very challenging situation who has a story that I hope people will be willing to listen to."

Judge Amy Berman Jackson was chosen for the Jacksons' case based on a random reassignment. She is not related to the couple — but she is a Harvard law alum like Wilkins and Ogletree.

Judge Jackson has familiarity with a convicted congressman: As a defense attorney before her appointment to the bench, she represented Rep. William Jefferson, D-La., who was convicted of corruption after authorities found $90,000 in cash in his freezer.

Recent related posts:

April 17, 2013 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, April 16, 2013

"Conservatives Push Marijuana Reform in Congress"

The title of this post is the headline of this notable new piece from Rolling Stone.  Here are excerpts:

There's a new congressional push to end the federal War on Pot in the states – and it's being spearheaded by some of the most conservative members of the Republican conference.

The "Respect State Marijuana Laws Act" introduced in the House last week would immunize anyone acting legally under state marijuana laws from federal prosecution under the Controlled Substances Act.  Depending on the state, the legislation would cover both medical marijuana and recreational pot, and would protect not only the users of state-legal cannabis, but also the businesses that cultivate, process, distribute and sell marijuana in these states....

The three GOP co-sponsors are:

Rep. Dana Rohrabacher of California, who is best known to liberals as a villainous climate denier for theorizing that global warming is the result of "dinosaur flatulence."

Rep. Don Young of Alaska, the mastermind of the infamous Bridge to Nowhere, who was most recently in the news for recalling the "wetbacks" his father employed on the family farm.

And Rep. Justin Amash of Michigan, who was recently "purged" from the Republican House Budget Committee – allegedly for being too conservative – and who has repeatedly voted against toughening penalties for human trafficking.

These hardcore Republicans are joined in a ganja Gang of Six by liberal pro-pot stalwarts Reps.  Jared Polis of Colorado, Earl Blumenauer of Oregon and Steve Cohen of Tennessee.

Speaking for the group, Republican Rep. Rohrabacher said the bipartisan bill "establishes federal government respect for all states' marijuana laws" by "keeping the federal government out of the business of criminalizing marijuana activities in states that don't want it to be criminal."

Steve Fox, national political director of the Marijuana Policy Project, hailed the effort to bend federal marijuana law to the will of the governed.  "Marijuana prohibition is on its last legs because most Americans no longer support it," said Fox, adding that the new legislation offers the states'-rights crowd in the House with a chance to vote their principles:  "This legislation presents a perfect opportunity for members to embrace the notion that states should be able to devise systems for regulating marijuana without their citizens having to worry about breaking federal law."

A few recent and older related posts: 

April 16, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3) | TrackBack

Prez Obama makes three great new nominations to the US Sentencing Commission

I am very pleased and excited to have learned that late yesterday the White House officially announced three great new nomination to fill the three now-empty spots on the US Sentencing Commission.  A colleague forwarded me a copy of the official press releases with the appointments, but I cannot yet find it linked on-line.  Ergo, I will rely on this local press report from the Montgomery Advertiser, headlined "Obama nominates Bill Pryor for sentencing commission," for the basics:

President Barack Obama nominated former Alabama attorney general and current U.S. circuit judge Bill Pryor to be a commissioner on the U.S. Sentencing Commission, the White House announced Monday evening.

Pryor, who served as attorney general from 1997 to 2004, serves on the U.S. Court of Appeals for the 11th Circuit. President George W. Bush appointed Pryor to the federal bench in 2004....

Pryor would serve a term that expires Oct. 31, 2017, and would replace commissioner William B. Carr, whose term has expired.

Obama also intends to nominate Rachel Elise Barkow, the Segal Family Professor of Regulatory Law and Policy at the New York University School of Law, and U.S. District Judge Charles Breyer of the Northern District of California to the sentencing commission, according to the White House.

I am familiar with and greatly respect the sentencing work of all three of these folks, and I cannot readily think of many persons whom I would be more excited to see joining the U.S. Sentencing Commission. I hope they are all swiftly confirmed and can get right to work on all the area of federal sentencing reform now in urgent need to attention and action.

UPDATE:  The official press release about these nomination are now available at this link.

April 16, 2013 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (16) | TrackBack

"Clemency for the 21st Century: A Systemic Reform of the Federal Clemency Process"

The title of this post is the headline of this new short piece by Mark Osler now available via SSRN. Here is the abstract:

Federal clemency is in crisis. In response to that crisis, a remarkable bipartisan consensus has formed in support of systemic reform.  This short statement acknowledges that consensus, and lays out a framework for change.  The reforms described here are achievable without significant congressional action, consistent with best practices in the states, and cost-effective.  We urge that this administration take the clemency process out of the Department of Justice, create an independent and bipartisan Clemency Board that would report directly to the President, and establish a regular and systemic process for executive consideration of individual cases.

April 16, 2013 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, April 15, 2013

What should happen after improper federal judicial participation in plea negotiations?

The question in the title of this post is the question being considered by the Supreme Court during oral argument today in US v. Davila. I have not given Davila too much attention until now, in part because I think I would prefer a world with a lot more regulation and judicial involvement in plea negotiation. Moreover, as this SCOTUSblog preview by Rory Little suggests, there may be a host of reasons it makes sense for me to be rooting about the federal criminal defendant in this matter. Here is how Rory's effectivepreview starts:

With apologies to fifty-seven of my fellow “Criminal Law and Procedure Professors” who have filed an amicus brief in support of respondent Anthony Davila in United States v. Davila (set for argument on Monday April 15 -- can that really be a coincidence for a felony tax offender?), this looks like a simple case.  “Deceptively simple,” Davila’s lawyer Josh Rosenkranz might respond -- his brief does a good job of making one pause at the implications of the underlying facts.  But the Question on which the Court granted -- whether “any degree of judicial participation in plea negotiations in violation of Federal Rule of Criminal Procedure 11(c)(1) automatically requires” reversal (my emphasis) -- really does not require examination of these implications.  In recent years, the Court has firmly rejected endorsing “automatic reversal” rules, let alone ones based on procedural rules rather than the Constitution, rules that many states do not follow.   Expect Monday’s argument to be respectful but one-sided on the Question Presented, with the more defendant-friendly Justices perhaps focused on how best to limit a reversal so as to not endorse the disturbing implications that Davila (and his law professor amici) admirably present.

I expect the oral argument transcript in Davila will be available later this afternoon, and I will post it here when it is.

UPDATE:  The transcript in United States v. Davila is now available at this link.

April 15, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Second Circuit finds Cameron Douglas's above-guideline sentence substantively reasonable

The latest (and perhaps final) significant chapter in the federal sentencing saga concerning Cameron Douglas was finished this morning when a Second Circuit panel rejected his claim that his second federal sentence was substantively unreasonableness in US v. Douglas, No. 11-5384 (2d Cir. April 15, 2013) (available here). In addition to thinking the Second Circuit panel came to the right basic outcome here, I am especially pleased that both the majority opinion and the concurrence in Douglas provide an extended discussion of sentencing practice and policy as part of the continuation of a (still nascent, but-not-yet-dormant) post-Booker common law of reasonableness review.

As I have explained in a number of prior posts (which are liked below), I have found the Cameron Douglas story of crime and punishment consistently worthy of attention — in part because the involvement of celebrities at his federal sentencings and in part because of the many legal and social issues raised by the seemingly lenient sentence Michael Douglas's drug-addicted son was given at his first sentencing and the seemingly harsh sentence he got the second time around (some backstory here).  The Second Circuit's Douglas opinion tells this story effectively (though leaving out the celebrity part), and then provide a lot of analytical meat for any and all federal sentencing fans to chew on.  I highly recommend reading the Douglas opinions in full, though I will here spotlight two notable passages from the opinions concerning the relationship between addiction and drug sentencing.

At the very end of the majority opinion (per Judge Gerard Lynch), we get these notable comments from the Second Circuit panel:

Finally, we take note of the argument, made by Douglas and supported by amici, that punitive sanctions are a less appropriate response to criminal acts by persons suffering from addiction than drug treatment. It may well be that the nation would be better served by a medical approach to treating and preventing addiction than by a criminal-justice-based “war on drugs.” See, e.g., Heather Schoenfeld, The War on Drugs, the Politics of Crime, and Mass Incarceration in the United States, 15 J. Gender Race & Just. 315 (2012); Juan R. Torruella, Déjà Vu: A Federal Judge Revisits the War on Drugs, or Life in a Balloon, 20 B.U. Pub. Int. L.J. 167 (2011).  But Congress has made a different choice, and this case is not a vehicle for deciding questions of comprehensive drug policy. For so long as the sale and possession of narcotics remain crimes, courts must struggle with the difficult task of sentencing those who commit such crimes.

We do not hold that district courts may not approach cases of addicted defendants who seek treatment and show promise of changing their lives with compassion and with due consideration of the relative costs and effectiveness of treatment versus long prison sentences.  Indeed, that is precisely how the district court approached Douglas’s original sentence in this case.  Sentencing courts are not required, however, to turn a blind eye to behavior that can reasonably be understood as demonstrating that a particular defendant has shown himself to be a poor candidate for treatment or for leniency.  District courts are in the best position to decide whether the defendant before the court is likely to respond to drug treatment or has spurned chances at rehabilitation and persisted in a life of “reckless, criminal, dangerous, destructive, [and] deceitful conduct.”  We therefore cannot say that the district court’s assessment of the sentence appropriate for Douglas was unreasonable.

And, at the very start of the concurring opinion by (my former boss) Judge Guido Calabresi, we get these notable comments:

I join the majority opinion in full because I agree that it is not substantively unreasonable for a district judge, after having given a defendant a number of breaks and second chances, to impose a sentence like this one. I write separately to emphasize my view that a term of imprisonment of between 5 and 10 years ought not to be seen merely as a punishment. It also must represent an expression of some faith that the convict might be rehabilitated within that time. Prisons should have a duty, therefore, not just to keep the convict locked away, but to enhance his ability to become a responsible citizen. When the convict’s crime involves drug addiction, a necessary part of this rehabilitation is enforced, medically monitored withdrawal. Congress has passed a law criminalizing possession of drugs by an inmate in federal prison, and there is no question that Douglas broke that law and manifested, as the majority opinion shows, a high level of culpability. There is also no question in my mind, however, that the incidence of this crime also demonstrates a significant level of culpability on the part of the jailing institution. When a prison cannot protect an addicted inmate from the capacity to relapse, it has failed to perform an essential obligation – an obligation that it owes both to the inmate and to the society that the inmate will someday rejoin.

Prior posts concerning Cameron Douglas's federal sentencings:

April 15, 2013 in Booker in the Circuits, Drug Offense Sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Interesting coverage of media coverage of crime and prison punishments

Marchapril2013cover_300x400Thanks to this post at How Appealing, I discovered that the the March / April 2013 issue of Columbia Journalism Review has a set of articles concerning the ways in which the media covers (and has trouble covering) some modern crime and punishment stories.  I am very pleased to see the Columbia Journalism Review provide this significant coverage of aspects and limits of modern media coverage, not only because I sorta/kinda play the role of a new media journalist on-line through this blog, but also because these articles are part of a broader issue devoted to the modern media's less-than-inspiring "coverage of race, class, and social mobility." 

As regular readers will not be surprised to hear from me, I think issues of crime and punishment are among the most central and least examined aspects of our enduring struggles with the array of dynamic issues relating to race, class, and social mobility in the United States.  Thus, I am not only generally happy to see coverage of media coverage of crime and prison punishments, but I am particularly pleased that this issue of the Columbia Journalism Review links its article to the broader concerns of "coverage of race, class, and social mobility."

With that wordy preview, here are links to the set of pieces appearing in the the March / April 2013 issue of Columbia Journalism Review that all look like must-reads:

April 15, 2013 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Is there any sound scientific reason for the dearth of marijuana research funding?

The question in the title of this post is prompted by this lengthy and informative new Bloomberg article, which is headlined "Marijuana Research Funding Cut as Support for Drug Grows."  Here are excerpts:

As more states embrace legalized marijuana, the drug’s growing medicinal use has highlighted a disturbing fact for doctors: scant research exists to support marijuana’s health benefits.

Smoked, eaten or brewed as a tea, marijuana has been used as a medication for centuries, including in the U.S., where Eli Lilly & Co. (LLY) sold it until 1915.  The drug was declared illegal in 1937, though its long history has provided ample anecdotal evidence of the plant’s potential medicinal use.  Still, modern scientific studies are lacking.

Subsequent research suggests marijuana may help stimulate appetite in chemotherapy and AIDS patients, help improve muscle spasms in multiple sclerosis patients, mitigate nerve pain in patients with HIV-related nerve damage and reduce depression and anxiety.

What’s more, the federal government is scaling back its research funding. U.S. spending has dropped 31 percent since 2007 when it peaked at $131 million, according to a National Institutes of Health research database.  Last year, 235 projects received $91 million of public funds, according to NIH data.

That’s left the medical community in a bind: current literature on the effects of medical cannabis is contradictory at best, providing little guidance for prescribing doctors.  “What’s happening in the states is not related to science at all,” said Beau Kilmer, co-director of RAND Corp.’s drug policy research center. Kilmer is also part of a group selected to advise the state of Washington on its legalization effort. “It’s difficult to get good information,” he said.

Two states, Washington and Colorado, have fully legalized the drug, 18 states allow its use for medical reasons and 17, including New York, have legislation pending to legalize it.

Donald Vereen, a former adviser to the last three directors of the National Institute on Drug Abuse, says that most doctors’ and policy makers’ knowledge on the subject stems from a 1999 report from the Institute of Medicine, an independent nonprofit that serves to provide information about health science for the government.  The group summed up its findings saying cannabis appeared to have benefits, though the drug’s role was unclear.

The IOM report recommended clinical trials of cannabinoid drugs for anxiety reduction, appetite stimulation, nausea reduction and pain relief. It also found that the brain develops tolerance to marijuana though the withdrawal symptoms are “mild compared to opiates and benzodiazapines.”... Vereen, for one, says marijuana’s effects on pain without the withdrawal symptoms associated with other medications are deserving of further study to develop better pain drugs.

Subsequent research suggests marijuana may help stimulate appetite in chemotherapy and AIDS patients, help improve muscle spasms in multiple sclerosis patients, mitigate nerve pain in those with HIV-related nerve damage and reduce depression and anxiety. It’s even been suggested that an active ingredient, THC, may prevent plaques in the brain associated with Alzheimer’s, according to a 2006 study by the Scripps Research Institute.

Still, fewer than 20 randomized controlled trials, the gold standard for clinical research, involving only about 300 patients have been conducted on smoked marijuana over the last 35 years, according to the American Medical Association, the U.S.’s largest doctor group....

Until more laws change, it will be difficult to study an illegal substance with the goal of turning it into a medication, researchers say. And since it’s illegal to grow, marijuana isn’t subjected to the rigorous quality control most medicines are, raising concerns patients may be at risk from contaminants, said Vereen.

Marijuana advocates point out inherent obstacles to conducting research: the National Institute on Drug Abuse controls all the cannabis used in approved trials, but the agency’s mandate is to study abuse of drugs, not health benefits. FDA Dilemma This creates dilemmas. The Food and Drug Administration, for instance, has approved a clinical trial studying whether marijuana can relieve symptoms of post-traumatic stress disorder. The trial, however, which is in the second of three stages of clinical testing, is blocked. NIDA, which controls the legal testing supply of the drug grown at a University of Mississippi farm, has refused to supply the researchers with marijuana.

“NIDA is under a mandate from Congress to find problems with marijuana,” said Bob Melamede, CEO of Cannabis Science Inc. (CBIS), a Colorado Springs, Colorado-based company that develops medicines derived from marijuana. “If you want to run a study to show it cures cancer, they will not provide you with marijuana,” he said. “What you cannot do are the clinical studies that are necessary.”

Attempts to expand licensed facilities beyond the University of Mississippi farm, have been denied, including a petition from University of Massachusetts agronomist Lyle Craker. The Drug Enforcement Administration denied that request in 2011, reversing a 2007 recommendation from its own administrative law judge, Mary Ellen Bittner.

NIDA also administered the most projects from 2003 to 2012, overseeing $713 million split among 1,837 research efforts. The bulk of the funding in the past decade was devoted to evaluating marijuana’s risks, potential negative impacts on the brain and developing prevention and treatment strategies, according to NIDA.

“There’s been a significant amount of study, but not clinical research,” said Brad Burge, a spokesman for the Multidisciplinary Association for Psychedelic Studies, a non-profit research and advocacy group. What’s lacking, says Burge, is “research intended to move marijuana, the plant, through the path to prescription approval by the FDA.”

For now, the research that does exist is often contradictory. A survey of 4,400 people found that those who consumed marijuana daily or at least once a week reported less depressed mood than non-users, according to a 2005 report in the journal Addictive Behaviors. A 2010, however, study in the American Journal of Drug and Alcohol Abuse of 14,000 found that anxiety and mood disorders were more common in those who smoked almost every day or daily....

Doctors’ attitudes are also shifting in favor of easing marijuana restrictions. The American Medical Association, the nation’s biggest doctor organization has called for a review of marijuana’s Schedule I status, a designation that declares it has no accepted medical use.

The American College of Physicians, the second-largest U.S. doctor organization with 133,000 members, also wants criminal penalties waived for doctors who prescribe marijuana and patients who smoke it. The drug could be useful to treat multiple sclerosis, nausea and pain, based on preliminary studies and pre-clinical lab work, the group said in a 2008 position paper calling for more research.

April 15, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Sunday, April 14, 2013

Weekend crime and punishment headlines from California

California has a large enough population to be a large nation all its own, and some crime and punishment stories that swirl around the state these days reveals just some of the ways that the Golden State is truly a unique jurisdiction.  Here are just some of the headline from the state which caught my eye this weekend:

April 14, 2013 in Death Penalty Reforms, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, April 13, 2013

"Hurricane Sandy has been good for the Gambino crime family"

The title of this post is the amusing first sentence of this New York Daily News article discussing the latest way-below-guideline federal sentencing outcome for extortion crimes in and around New York.  Here are the factual basics:

Reputed soldier Vincent Dragonetti is the third mobster convicted of extortion to be sentenced to perform community service for victims of last year’s weather disaster instead of jail time.

Federal Judge Dora Irizarry could have sent Dragonetti away for up to 51 months for his extortion of Brooklyn developer Sitt Asset Management, but he gave him 200 hours of service instead.

Irizarry previously sentenced Gambino associates Emmanuel Garofalo and Thomas Frangiapane to Sandy-related relief.

I am not eager to question the sentencing wisdom of Judge Irizarry or any other federal judge who concludes that the goals of sentencing set out by Congress in 3553(a) are better served by community service than by prison time.  That said, I hope that there will be proper monitoring of these community service sentences so that Sandy victims really do directly benefit from the alternative sentences given to these high-profile federal criminals.

April 13, 2013 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, April 12, 2013

A few minutes of ganja gold social commentary from The Colbert Report

I have already seen lots of interesting social commentary about the modern marijuana reform movement, but the recent segment by Steven Colbert (embedded below) makes for especially amusing viewing on a Friday afternoon.  Enjoy:

Notably, this amusing new segment may soon seem dated, as this AP article details that Maryland appears to be on the verge of becoming the 19th state to legalize medical marijuana.  In addition to being intrigued by state developments in this realm, I think it may be only a matter of time before so many states have legalized medical marijuana that the feds may have to confront new constitutional arguments problems when trying to aggressively prosecute and severely sentence responsible persons who are involved in state-approved medical marijuana businesses.

A few recent and older related posts: 

April 12, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (8) | TrackBack

Terrific SCOTUSblog preview of Kebodeaux and SORNA

A helpful reader reminded me not only that the Supreme Court has a last few criminal justice cases slated for oral argument the next few weeks as its term winds down, but also that one sex offender case, US v. Kebodeaux, due to be argued next week raises a host of intricate legal issue. Helpfully, Steven Schwinn sorts through Kebodeaux via this terrific (and very lengthy) post at SCOTUSblog  titled "Argument preview: Can Congress punish a former sex offender for failure to register?".  Here are highlights from the analysis section of the preview:
This is a narrow case. It involves a defendant who represents a relatively small and, with time, diminishing class of individuals (those with sex-offender convictions pre-SORNA). It involves a defendant who is subject to SORNA by virtue of his military conviction, and not his interstate travel. And it involves a challenge to SORNA’s penalty provision, and not its other provisions (including its registration provision, although it may be hard to separate the two here)....

In short, this is no broadside challenge to congressional authority to require sex-offender registration. Instead, it is a very narrow case. And we can expect the Court to address it that way.

Still, bigger issues are likely to emerge in the arguments. Thus, look for the Court to press the government for limits on congressional authority, and to ask the government about federal intrusion into areas of traditional state concern. In other words, some on the Court are likely to worry about whether the government’s theories lead to an expansive federal power that can encroach too far on the states.

On the other hand, look for the Court to ask Kebodeaux about the sweep of federal power under Comstock, especially when Kebodeaux came under federal authority because of his military service, and not because of his interstate travels. Look for the Court also to test Kebodeaux’s theory of federal control pre-SORNA, given the full sex-offender registration scheme under the Wetterling Act (including the federal penalty for failure to register, and also including the federal financial incentives for states to create their own registrations and other features of the Act). The Court could see SORNA’s application to Kebodeaux as only a modest additional exercise of federal authority, given these considerations.

April 12, 2013 in Criminal Sentences Alternatives, Offense Characteristics, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, April 11, 2013

Former NFL player now a high-profile felon facing (severe?) federal sentencing realities

As reported in this ESPN piece, headlined "Sam Hurd pleads guilty," I now have a new high-profile (and potentially high) federal defendant to watch as his sentencing approaches.   Here are just some of the interesting details:

Former NFL wide receiver Sam Hurd pleaded guilty Thursday to trying to buy cocaine and marijuana to set up a drug-distribution network, a move that leaves him facing significant prison time.

Hurd, 27, pleaded guilty in federal court in Dallas to one count of possession of cocaine and marijuana with intent to distribute. His trial was scheduled to begin Monday, and a federal judge had refused his attorney's request to delay it.

Prosecutors and Hurd's attorneys have been in plea discussions for months, according to one of his attorneys, Jay Ethington. One sticking point was what allegations Hurd would acknowledge in a plea agreement, which will factor into his recommended sentence on the indictment, Ethington said in September.

Ethington told The Chicago Tribune that he plans to "vigorously contest" Hurd's sentencing, contending that the former receiver didn't engage in drug trafficking to the extent alleged by prosecutors. "He's a marijuana freak," Ethington told the newspaper. "He loves marijuana. He's addicted to high-grade marijuana."

Ethington said Hurd was not a marijuana dealer. "Sell? No. Share with his friends? Yes," Ethington told the newspaper.

Hurd was a player for the Chicago Bears when was arrested in December 2011 outside a Chicago-area steakhouse after accepting a kilogram of cocaine from an undercover officer, according to documents prosecutors filed in the case.  Prosecutors alleged he told the officer and an informant at the steakhouse that he wanted to purchase up to 10 kilograms of cocaine a week for $25,000 per kilogram.

His arrest shocked his teammates and led to his release from the team. Months later, he was back in court after failing two drug tests and allegedly trying to arrange another drug buy.  Two men linked to Hurd's alleged attempts to buy drugs have pleaded guilty and were prepared to testify against him.

April 11, 2013 in Celebrity sentencings, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (2) | TrackBack

"How to Awaken the Pardon Power"

The title of this post is the headline of this notable new commentary by Mark Osler now up at The Huffington Post.  Here is how it starts and ends:

In recent months, a striking array of people -- from the Kardashians to those within the Heritage Foundation -- have called attention to the often-forgotten ability of the president to shorten sentences and pardon convictions. It's no wonder: There is a crisis of over-incarceration in this country, and the pardon power is an obvious way to address it.

Inaction has exacerbated the problem, as the federal pardon power has nearly faded away. President Obama's recent grant of 17 pardons in minor, old cases does little to refute this. Even after these pardons, this president remains the stingiest user of executive clemency in recent history. In addition to a handful of pardons through the course of his presidency, President Obama has granted only a single commutation petition (which merely reduces a sentence), while denying over 3,000. Meanwhile, over 5,000 federal prisoners continue to serve sentences under an old mandatory minimum sentencing statute for crack cocaine sentences that has been reformed but not made retroactive.

No one seems happy with this abandonment of an important Constitutional power. Reports critical of Obama's performance have recently been issued by experts at both the conservative Heritage Foundation and the liberal American Constitution Society, and Supreme Court Justice Anthony Kennedy has condemned the dissolution of the pardon power both while on and off the bench. Such rare consensus among the right, the left, and the middle must mean that something is very wrong.

The process for considering clemency petitions is a part of the problem, according to the critics. The United States Pardon Attorney and his small staff are a part of the Department of Justice, and several levels of review stand between that office and the president. Those tasked with evaluating the apportionment of mercy are embedded deep within the agency charged with prosecution. The stingy results are predictable.

Three simple steps would cure this systemic problem. First, the consideration of clemency needs to be taken out of the Department of Justice. Second, clemency petitions should be evaluated by a diverse, bi-partisan board rather than a single official. Finally, clemency considerations should be routinized, with that board presenting its recommendations to the president at regular intervals....

The president of the United States is a Constitutional scholar, and it is the Constitution itself which creates the odd but important pardon power of the executive. It is nothing less than a charge to do justice while embracing mercy, a job made possible by the humble acknowledgment that our laws at times are not perfectly fit to the changing shapes of human frailties. We can only hope that the president possesses the strength to embrace that humility.

April 11, 2013 in Clemency and Pardons, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

How should we understand and react to a small uptick in San Diego's crime rate?

330317_1n11crime_1_t940The question in the title of this post is my reaction to this local article which carries the (problematic?  incomplete?) big and bold headline "County crime increased in 2012."  Here are the basics of the (important? problematic? fascinating?) local California crime story:

The decades-long trend of declining crime across San Diego County took a turn last year, when reported incidents increased by 7 percent.  Regional law enforcement officials say they are concerned, but not certain if there is cause for alarm.

“Nobody in law enforcement likes it when the crime rate goes up,” Sheriff Bill Gore said Wednesday, adding that it is cause for concern.  “Crime rates have been going down for 30 years. We didn’t think crime would go to zero.”

The 2012 numbers were released Wednesday by the San Diego Association of Governments, which each year tallies the seven major crimes tracked by the FBI: homicide, rape, robbery, aggravated assault, burglary, larceny and motor theft.

The countywide figures, in rounded numbers, show that reported crimes rose from 76,000 in 2011 to 81,000 in 2012, a 7 percent increase. Violent crimes rose 7 percent, property crimes rose 6 percent.

Crime rose by 7 percent within the city of San Diego, which had 35,000 crimes in 2011 compared to 37,000 in 2012.  Incorporated cities and unincorporated county areas served by the Sheriff’s Department saw an 8 percent increase in crime, from about 16,000 to 17,000.

The local numbers seem to echo, and exceed, a national upward trend in crime figures. “Nationally, for the first six months of 2012, we saw a less than 2 percent increase in the numbers — a slight uptick,” said James Austin, president of nonprofit JFA Institute, a Washington D.C.-based criminal justice research and consulting firm.  “By region, most of that increase is produced in the Northeast and the Western region, and San Diego is part of the Western region. So that is consistent.”

With the 2012 increase in crimes, authorities around San Diego County have asked themselves “Why?” and looked for ways to slam on the brakes.  Some are ready to place at least some of the blame on the state’s public safety realignment law, also known as AB 109. “It’s too early to say,” said Cynthia Burke, director of SANDAG’s criminal justice research division. “It’s something law enforcement is tracking.”...

San Diego police Chief Bill Lansdowne pointed out that in 2011, the city had its lowest crime rate in 42 years. Then came last year’s spike.  There were more homicides, rapes, assaults, home burglaries, larcenies and car thefts.  The only crime category to drop was nonresidential burglaries.

“I believe AB 109 is starting to have an effect on our crime,” Lansdowne said.  He said lower numbers of police officers, because of budget cuts, were also a likely factor.  Gore, too, said financial constraints and staff reductions have had their effect, and he hopes to fill 250 empty deputy positions by mid-2014.

In recent months, Lansdowne said, the department has focused crime-fighting efforts on areas seeing the greatest increases. One result, he said, is that homicides are down by 36 percent so far this year, compared to the same time last year, and gang-related crime is down 86 percent.

He also is hiring more officers, and looking forward to San Diego’s share of a $1.6 million state grant to county law agencies to address AB 109 issues.  Within the county last year, Ramona saw the largest increase in crime — 28 percent — with 546 crimes reported in 2011 and 699 in 2012.  Most of the crime was burglary and theft, said Lt. James Bovet, in charge of the town’s sheriff’s station....

Bovet said he was watching closely last year as the mountain community’s crime figures edged up. “Our overall crime rate is low, but this increase was so dramatic, we had to take some quick steps,” he said. “We analyzed our crime problems and prioritized out staff with more deputies per shift. I tasked my deputies here to pretty much talk weekly to a probationer. We do more to keep track of our known criminals and parolees.”

Bovet said deputies also broke up two burglary rings late last year, making several arrests. “I can tell you, this year, we’ve seen significant decreases in crime,” Bovet said. “We’ll keep monitoring it and do what we can do.”

Assuming the data reported here (both in the text and in the chart) is accurate, the real question/story here for sentencing fans is how should we come to understand this data and react thereto.  For folks who do not like the SCOTUS Plata ruling and/or the realignment plan that it prompted, it is real easy to claim that this crime increase is the fault of activist judges and Governor Jerry Brown.  But for folks who want to defend the SCOTUS Plata ruling and/or the realignment plan that it prompted, it is also real easy to claim that local authorities failed to plan properly for realignment and/or that modern budget cuts and limited funding for police and realted social services is the primary reason crime ticked up.

Perhaps more importantly, perhaps the right "story" and reaction thereto is celebration of government improvements, not finger-pointing and government blame.  As the chart above reveals, crime rates in San Diego, even after the SCOTUS Plata ruling and the realignment plan, remain a historically low level.  And it seems that an small uptick in crime led to local police department reviewing closely whether and how they could do more effectivel crime-fighting for less money.  And, at least according to the "cops on the beat," it now appears that despite realignment AND budget cuts, now  in some areas "homicides are down by 36 percent so far this year, compared to the same time last year, and gang-related crime is down 86 percent."

In other words, despite the short-hand bad-news headline of "County crime increased in 2012," the real story is much more mixed, and a lot of different stories can be told about whether and why the local crime glass is half-full or half-empty.  Unfortunately, while I have the time and energy to think this all through and am inclined to spin this story in a positive way, I suspect the average voter and average politician instead only has time to see the headline and to (over)react to what seems like very bad news concerning both crime and punishment in California.

Some related posts on the great crime decline and modern crime rates: 

April 11, 2013 in Detailed sentencing data, National and State Crime Data, Who Sentences? | Permalink | Comments (13) | TrackBack

Wednesday, April 10, 2013

New Brennan Center report on Gideon and indigent defense

Via e-mail, I received news of this new report on the right to counsel titled "Gideon at 50: Three Reforms to Revive the Right to Counsel."  Here is how the e-mail described its context and contents:

The Brennan Center for Justice at New York University School of Law releases a new report examining the numerous challenges public defenders face in providing legal representation to poor clients.  Fifty years after the U.S. Supreme Court recognized the constitutional right to an attorney for criminal defendants in Gideon v. Wainwright, many public defenders are so underfunded and overworked that clients are not getting the legal defense they were guaranteed, further feeding our nation’s mass incarceration problem.  In this report, Thomas Giovanni and Roopal Patel identify impediments to effective counsel and propose three common sense reforms.

“The underfunding of legal defense for poor people increases the risk that innocent people will be convicted,” said Giovanni.  “The overcriminalization of petty, non-violent activity diverts scarce resources from real public safety priorities.  Until legislators commit the necessary resources to public defenders and rethink the classification of low-level offenses, the cycle of mass incarceration will continue at great societal, political, and fiscal costs.”

April 10, 2013 in Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

"The most interesting part of [Rand Paul's] speech was his widely anticipated defense of drug law reform."

The title of this post is drawn from this early report via Jennifer Rubin of the Washington Post concerning Senator Rand Paul's notable policy speech today at Howard University. Here is some context and more content from Rubin's strong first-cut analysis of Senator Rand's efforts (with one particular line emphasized by me):

Sen. Rand Paul (R-Ky.) delivered an important and intriguing speech at Howard University as part of his determined effort to expand the reach of the GOP and take his message everywhere.

His remarks, as prepared for delivery, highlighted the best and the worst aspects of his thinking, and they left some question marks....

The most interesting part of the speech was his widely anticipated defense of drug law reform.  “I am working with Democratic senators to make sure that kids who make bad decisions, such as non-violent possession of drugs, are not imprisoned for lengthy sentences.  I am working to make sure that first-time offenders are put into counseling and not imprisoned with hardened criminals.  We should not take away anyone’s future over one mistake.”  He described two young men, one white and privileged and the other mixed race and modest in income, who could have had their lives ruined by a drug arrest. He concluded with a kicker: “Instead, they both went on to become presidents of the United States. But for the grace of God, it could have turned out much differently.”

He then explained his opposition to mandatory minimum sentences:

"Our federal mandatory minimum sentences are simply heavy-handed and arbitrary. They can affect anyone at any time, though they disproportionately affect those without the means to fight them.  We should stand and loudly proclaim enough is enough. We should not have laws that ruin the lives of young men and women who have committed no violence.  That’s why I have introduced a bill to repeal federal mandatory minimum sentences.  We should not have drug laws or a court system that disproportionately punishes the black community."...

It was a nervy effort on his part, and a sincere one, I think, to explain his views to an audience not enamored of his party or philosophy. He should do more of it, and in more concrete terms, to persuade and explain how his philosophy works and why liberalism doesn’t.

He is a force to be reckoned with; liberals and conservatives ignore him at their own risk. If nothing else, he demonstrated that a forceful reiteration of history can illuminate the Republican Party and that conservatism deserves a fair hearing. That’s more than 90 percent of Republicans have done.

Regular readers (and certainly my dad and close friends) know that my political commitments lean toward the libertarian, and thus I was inclined to be a fan of Senator Rand Paul from the get-go. More broadly, as regular readers and others surely know, I strongly believe our modern federal criminal justice system ought not be so committed to costly big national government one-size-fits-all solutions for what seem, at least to me, to often be local small community diverse problems. Thus, I am especially excited that Senator Paul is apparently committed to bringing his libertarian perspective to the arena of federal criminal justice reform.

But the single sentence I have highlighted above reflect a different theme and one that strikes a different chord with my own philosophical commitments. Saying that "We should not take away anyone’s future over one mistake," reflects not a unique political philosophy but rather suggests a kind of personal moral philosophy grounded in a deep commitment to (1) recognizing the reality of human fallibility, and (2) embracing the potential for human improvement and achievement even after a human mistake is made.

Of course, if one really accepts this kind of deep moral commitment and wants criminal laws to reflect this commitment, there are a whole lot of important sentencing implications beyond reform of federal drugs and mandatory minimum sentencing terms. Such a personal moral philosophy, at least in my view, would necessarily call for eliminating the death penalty and LWOP for any and all first offenders, and it might even call for eliminating any imprisonment any and all first offenders. But I do not want to, at least right now, start setting out a script for just how Senator Rand Paul should seek to operationalize his political and personal philosophies. For now I just want to (a) celebrate the fact that he is really starting to talk the talk on long-needed federal criminal justice reforms, and (b) continue to get excited about how he will be soon walking the walk on long-needed federal criminal justice reforms.

Some recent and older related posts:

April 10, 2013 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack

"Can Constitutional Rights Be Sequestered?"

The title of this post is the headline of this notable and potent new commentary appearing today in the New York Law Journal. It is authored by federal public defender Douglas Morris, and here are excerpts:

In Germany, between the end of World War I and the beginning of the Nazi regime, a criminal defense lawyer named Max Hirschberg confronted right-wing reactionaries in court, including one Adolf Hitler in a dramatic case in 1929.  Some three years later, at the end of 1932, just months before Hitler came to power, Hirschberg published an article in a small democratic journal.  He protested the recent misuse of emergency decrees for stripping defendants of certain basic rights.  The excuse, Hirschberg pointed out, was budget constraints.

Today in the United States, the federal sequester, the across-the-board cuts in federal spending that took effect March 1, has become a frontal assault on the Sixth Amendment right to counsel.  For years I have been representing defendants as an employee of Federal Defenders of New York, Inc., the public defender office in New York City for those who cannot afford an attorney.  But my office, like its counterparts elsewhere, is being gnawed to the bone in the jaws of the sequester....

The sequester is not just financially squeezing the federal defenders, who already earned far less than, say, first year associates at major law firms. It is destroying any semblance of justice.  The body blow is to the defense, not the prosecution.  Take the example of the Southern and Eastern Districts of New York, which comprise the federal trial courts for New York City and some surrounding counties. The prosecutors in the two U.S. Attorney Offices have always vastly outnumbered the defense lawyers in the federal defender office.

The head count alone captures the picture, with 280 prosecutors versus 38 Federal Defender lawyers, who represent approximately 40 percent of the New York metropolitan area's federal criminal defendants, a ratio of three to one.  The sequester, slashing our office's budget for the next six months by 20 percent, is forcing these 38 defense lawyers to take an average of six weeks of furlough, more than one day a week.  The alternative was laying off one third of the lawyers.  As of now, the prosecutors will take no furlough....

The adversarial system in criminal justice acknowledges that prosecutors have no monopoly on the truth, logical reasoning, or good judgment, and the Sixth Amendment right to counsel assures individuals in trouble some support against the powers of the state.  The principle of Gideon is that the Sixth Amendment announces not just a privilege for the rich, but a right for all, including the poor.  The only fair, effective and efficient way to secure that right is by investing money in institutions like Federal Defenders.  This institutional structure has taken years to build.  Ax it at the knees and it will collapse in no time.

Then the promise of Gideon will become the shameful memory of a principle that was beginning to work until its miserly abandonment. God, in infinite wisdom, set aside the seventh day as one for rest, but the Founding Fathers, with good practical sense, did not envision the right to counsel on furlough.  When Max Hirschberg cried out in late 1932 for preserving fairness in criminal defense, he did not know that Germany had only to await the imminent emergence of the Nazi regime for delivering the finishing blow to independent defense lawyers.  An open question is whether America will cripple criminal defense in the midst of a democracy.

Recent related posts:

April 10, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (27) | TrackBack

Amnesty International reports on latest state of death penalty around the globe

As reported in this New York Times article, yesterday Amnesty International released its annual compilation of capital punishment trends.  Here are the basics:

At least four countries that had not used the death penalty in some time — India, Japan, Pakistan and Gambia — resumed doing so last year, the rights organization Amnesty International says in its annual compilation of capital punishment trends.... Nonetheless, its yearly review, released early Wednesday in London, said the overall shift away from death sentences and executions continued in 2012.

“In many parts of the world, executions are becoming a thing of the past, ” Salil Shetty, secretary general of the organization, said in a statement. Amnesty said only 21 countries were recorded as having carried out executions in 2012, the same as in 2011, but down from 28 countries a decade earlier.

It said at least 682 executions were known to have been carried out worldwide in 2012, two more than 2011, and at least 1,722 death sentences were imposed in 58 countries, compared with 1,923 imposed in 63 countries the year before....

Amnesty also pointed out that its compilation excluded what it said were the thousands of executions it believes were carried out in China, where the number of capital punishment cases is kept secret. The organization said it still believed China remained the world’s top executioner.

Besides China, the top executors in 2012, Amnesty said, were Iran with 314, Iraq with 129, Saudi Arabia with 79 and the United States with 43. The report also noted that only nine American states executed prisoners in 2012, compared with 13 the year before, and that in April, Connecticut became the 17th state to abolish the death penalty.

The full AI report and additional related information can be accessed from this link.

April 10, 2013 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (22) | TrackBack

Tuesday, April 09, 2013

Nebraska legislature debating "Miller fix" sentencing proposals

As reported in this local article, headlined "Debate begins on juvenile sentencing bill," the single body that legislates in Nebraska is sorting through competing ways to deal with the Supreme Court's handiwork in Miller.  Here are the basics:

Senators turned away two attempts Monday to amend a bill that calls for a minimum sentence of 30 years for juveniles convicted of first-degree or felony murder.

They defeated amendments that sought to make the minimum sentence 60 years and one that would have removed specific mitigating factors for judges to consider when sentencing....

A 30-year minimum sentence would provide discretion to the courts and is in line with current science on juvenile brain development, said Omaha Sen. Brad Ashford, who introduced the bill.

With a 30-year minimum sentence, the offender would be eligible for parole in 15 years. A judge would have the option of sentencing the convicted juvenile to more time -- or could impose a life sentence.

The Supreme Court ruled judges must consider a defendant's age, immaturity, impetuosity and failure to appreciate risks and consequences. They must take into account the family and home environment that surrounds the youth. The Nebraska bill would require the court to consider those mitigating factors, as well as the outcome of a comprehensive mental health evaluation by a licensed adolescent mental health professional.

On Monday, senators defeated an amendment by Omaha Sen. Scott Lautenbaugh, after dividing it into two questions: One that would have made the minimum sentence 60 years was defeated on a 21-23 vote. The other, which would have eliminated consideration of mitigating factors, was defeated on a 16-27 vote.

Ashford said in crafting a constitutional solution to the Nebraska life sentence, the committee knew the 35-year sentence in Pennsylvania and the 60-year sentence in Iowa were under constitutional attack. "Sixty is just beyond the pale. It would never, in my view, pass constitutional muster," he said.

Supporters of the amendment said the possibility of parole after 15 years was unacceptable. And judges already consider such factors as those listed in the bill. Omaha Sen. Beau McCoy said the discussion on the 60-year minimum sentence could resume Tuesday.

Among other stories, I find it interesting and notable that on-going constitutional litigation in other states over efforts to respond to Miller is clearly impacting how Nebraska's legislature is working through its legislative fix.  I think famed constitutional theorist Alexander Bickel, who often spoke of the import and impact of a multi-branch national dialogue about core constitutional principles (see post here by Barry Friedman at SCOTUSblog), would be quite pleased to see how just such a dialogue is unfolding as to how best to operationalize the sentencing principles set out in the Miller ruling.

April 9, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Who Sentences? | Permalink | Comments (0) | TrackBack

Fascinating (distinct/similar?) commentary on marijuana policy and politics from inside the Beltway

As regular readers know well, I find the law, policy and politics of modern marijuana reform to be fascinating.  Two recent commentaries in the Washington Post reinforce my perspective.

First, consider this notable commentary by Peter Wehner, who worked in the last two Republican presidential administrations, under the headline "GOP should stand firm against drug legalization."  I find especially telling that this piece, as excerpted below, makes a forceful argument that (big federal) government works and that drug use is a moral issue that calls for more (big federal) government intervention:

Strong, integrated anti-drug policies have had impressive success in the United States. Both marijuana and cocaine use are downsignificantly from their peak use in the 1970s and ’80s....
In his dialogues, Plato taught that no man is a citizen alone. Individuals and families need support in society and the public arena. Today, many parents rightly believe the culture is against them.  Government policies should stand with responsible parents — and under no circumstances actively undermine them....

In taking a strong stand against drug use and legalization, Republicans would align themselves with parents, schools and communities in the great, urgent task of any civilization: protecting children and raising them to become responsible adults....

[R]arely do people say that drug use is wrong because it is morally problematic, because of what it can do to mind and soul. Indeed, in some liberal and libertarian circles, the “language of morality” is ridiculed.  It is considered unenlightened, benighted and simplistic.  The role of the state is to maximize individual liberty and be indifferent to human character.

This is an impossible stance to sustain.  The law is a moral teacher, for well or ill, and self-government depends on certain dispositions and civic habits.  The shaping of human character is preeminently — overwhelmingly — the task of parents, schools, religious institutions and civic groups.  But government can play a role.  Republicans should prefer that it be a constructive one, which is why they should speak out forcefully and intelligently against drug legalization.

Now, consider this notable commentary by Jonathan Rauch, who is a guest scholar at the Brookings Institution, under the headline "Let’s go down the aisle toward legalized pot."  I find especially telling that this piece, as excerpted below, makes a forceful argument that (big federal) government now will not work unless it adapts to new circumstances and that drug use is a moral issue that calls for (big federal) government withdrawal in light of changing attitudes:

All but a small fraction of the people who enforce the marijuana laws work for state and local governments and answer to state law.  Although states cannot break federal law, neither must they step in and enforce it.  Federal prosecutors probably could shut down regulated marijuana distributors in Colorado and Washington with relative ease by sending threatening letters to landlords and bankers.  But that would leave those states, and others that follow, with the option of legalizing marijuana without regulating it, because unconditional legalization under state law is indisputably within the states’ power.  The effect of removing states’ troops from the battlefield would be to strand the federal government with marijuana laws it could not enforce.

The chaos that might result would be counterproductive even (or especially) for drug hawks.  Instead of shutting down the states’ experiments, then, the federal government might better serve the policy goals of the Controlled Substances Act by working with Colorado and Washington to concentrate federal and state enforcement on high federal priorities, such as preventing legalized marijuana from spilling across state borders....

In a number of important respects, marijuana legalization and same-sex marriage track closely.  Both are controversial social issues about which public opinion has changed dramatically in the past few years; on both issues, polls show the public closely divided but tipping toward legalization.

Moreover, for both issues, young people are driving the trend; older opponents of legalizing both are exiting the scene.  The issues’ demographics suggest that public opinion is virtually certain to continue shifting.  A true national consensus, however, remains some distance away, and partisan and regional differences are sharp.

In recent years, the country has pushed many controversial issues — abortion, crime, education — up to the federal level.  But same-sex marriage has taken the opposite path, with leadership left to the states.  The result, though somewhat messy as policy, has been a remarkable political success at a time when the country has few to boast of.  That some states could try same-sex marriage without betting the whole country reduced the stakes and contained the conflict.  States’ experiments with gay marriage educed valuable information about its real-world consequences, or lack thereof, allowing for a better-informed, more rational debate.

Above all, localizing the dispute gave people across the country time to work out what they think and to adjust policies as public opinion changed.... State leadership on marijuana policy has all of the same advantages as on marriage.  It contains conflict by reducing the stakes; educes knowledge about what happens if marijuana policy is changed; and allows incremental adjustment to social change.  For the federal government, yielding some measure of control over marijuana policy to the states is not a threat; it is an opportunity to manage change and preserve options.  Painting federal policy into a corner serves no one, not even drug warriors.

Though I am eager to say a lot more about both of these commentaries, but I will conclude for now with the adjective that captures most of my feelings here: fascinating!

A few recent and older related posts: 

April 9, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Monday, April 08, 2013

Notable perspective on notable class disparities in federal sentencing

I received via this e-mail from a helpful ready the following blog-friendly comment (with links) that I believe merits sharing in this space:

I was reading your blog post about the return of debtors' prisons for those who fail to pay court fines in Ohio, and appreciate your concern about a two-tiered sentencing system: those who can afford to pay, and those who can't.

You may be interested in a similar phenomena in the Brooklyn federal courts where a defendant who has a business which employs others often gets probation because the judges don't want his employees to lose their jobs.  Isn't this favored treatment for the capitalist class, and a penalty for the poor who don't employ others?

Reputed Gambino associate Anthony Scibelli got off with just probation last Friday because the sentencing judge also was reluctant to imprison Scibelli over "concern that incarceration would jeopardize the jobs of 200 employees at his firm" as reported by John Marzulli for the Daily News.

In 2008 another Brooklyn federal judge spared alleged Gambino soldier and Brooklyn restaurateur Joseph Chirico from prison on a money laundering conviction as then reported by Kati Cornell for the New York Post:  "Judge Jack Weinstein said he was hesitant to cut Chirico a break, but wanted to ensure Chirico's workers stay employed."

April 8, 2013 in Race, Class, and Gender, White-collar sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

"Retribution and Revenge in the Context of Capital Punishment"

The title of this post is the title of this notable new paper I just saw via SSRN. The piece is authored by Robert Schopp, and here is the abstract:

Several Supreme Court opinions that reject capital punishment specifically or retributive punishment generally as inconsistent with the Eighth Amendment of the Constitution characterize those practices as vengeance or as revenge.  These opinions apparently reflect the premise that vengeance is self-evidently evil.  Non-judicial participants in the legal, political, and public debates regarding capital punishment specifically or retributive punishment generally sometimes demonstrate a similar tendency to repudiate capital punishment or retributive punishment as revenge without further justification, suggesting that the mere characterization of behavior or of an institution as revenge is sufficient to establish that it is illegitimate.

This Article examines the relevant passages in these opinions and the central notions at issue in order to distinguish several possible interpretations of the positions asserted.  It then evaluates the broader interpretations in the context of one traditional moral theory. Finally, it clarifies the significance of this analysis for the underlying debate regarding the justification (or lack thereof) of retributive punishment generally or of capital punishment specifically.

April 8, 2013 in Death Penalty Reforms, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Florida still trying to figure out its Miller fix

As reported in this local article, headlined "Lawmakers differ on how to fix juvenile sentencing laws," Florida is still not yet sure how it will change its laws to comply with the Supreme Court's ruling last year in Miller.   Here are the basics:

[W]ith the 2013 legislative session at its midpoint, it’s unclear if legislation will be passed fixing the problem. It’s also unclear if the legislation will allow judges to sentence minors to lesser sentences, or if some form of parole will return to Florida for the first time in a generation.

“It is something that needs to be fixed,” said state Sen. Darren Soto, D-Orlando, who has introduced one of the several bills that would amend Florida’s sentencing laws. “But there doesn’t seem to be much will to get anything done.”...

Florida law now mandates anyone convicted of first-degree murder gets life in prison without the possibility of parole, if they are not sentenced to death. There are no exceptions for people younger than 18....

State Sen. Rob Bradley, R-Fleming Island, has introduced a bill that would allow judges to sentence minors to less than life in prison. It requires any minor convicted of first-degree murder to go through a sentencing hearing where both sides would argue what the sentence should be.

Issues like a defendant’s background, remorse, education and family history could be introduced for a judge to consider. The family of the victim would also be allowed to testify. Parole was eliminated for anyone convicted after 1994, and Bradley’s bill still prohibits it.

“I am not comfortable with a hearing occurring every five years or so where a family shows up and argues about why the defendant who killed their loved one should stay in jail,” he said. “A parole-like system is not in the best interests of Florida.”

Soto’s bill does the opposite. Life sentences are still required, but juvenile defendants will be up for parole 15 to 25 years after the sentencing occurred. “I do think they need to go to jail for a long time,” Soto said. “But children that age do deserve an opportunity to get out.”

When they’re up for parole, whether they’ve educated themselves in prison and what their family life was like beforehand will be considered, Soto said. Soto’s legislation also permits parole for juveniles who get life sentences for lesser offenses like second-degree murder. Those people would be up for parole after 15 years while first-degree murderers would have to wait 25 years.

J.D. Moorehead, a professor at Florida Coastal School of Law, said Bradley’s legislation would likely survive a court challenge because it addresses the major concern the Supreme Court had. Soto’s plan to bring back the parole system might be more problematic, although it does make a certain amount of sense to bring back parole for juveniles, Moorehead said.

The most logical step might be to take a hybrid of both bills, give judges the option of life without parole but allow them to impose a lighter sentence, and also let judges decide whether the defendant should be eligible for parole at some point, Moorehead said. “Judges know the people in front of them best,” he said.

April 8, 2013 in Assessing Miller and its aftermath, Offender Characteristics, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, April 07, 2013

Federal judge decides California still cannot run its prison without monitoring

As reported in this article, which is headlined "Judge refuses to end prison monitoring," the California prison system appears not to be getting out of federal court monitoring anytime soon. Here is the story:

Treatment of 32,000 mentally ill inmates in California prisons remains seriously deficient, with staff and facilities shortages and a high number of preventable suicides, a federal judge declared Friday in rejecting Gov. Jerry Brown's request to end more than 17 years of court monitoring.

Brown's insistence that prison mental health care now exceeds constitutional standards, after billions of dollars of expenditures, conflicts with evidence from an ongoing series of prison inspections, said U.S. District Judge Lawrence Karlton of Sacramento.

"Systemic failures persist in the form of inadequate suicide-prevention measures, excessive administrative segregation of the mentally ill (in isolated lockups), lack of timely access to adequate care, insufficient treatment space and access to beds, and unmet staffing needs," Karlton said.

He said the inmate suicide rate, which had been declining for several years, has soared since 2009 to nearly 24 per 100,000 inmates, or 60 percent above the national average. More than 70 percent of the suicides might have been prevented with adequate treatment, Karlton said....

Friday's decision is a signal that the population-reduction order is still needed and will be upheld, said Michael Bien, a lawyer for mentally ill inmates who sued the state in 1991. After finding constitutional violations, Karlton appointed a monitor, called a special master, to inspect the prisons and report on mental health care in January 1996. The judge's refusal to end the monitoring "allows us to get back to the real work of fixing a dangerously flawed mental health care system that's shamed California for more than 20 years," Bien said....

Karlton said the evidence, from experts on both sides as well as the court-appointed monitor, showed that the prisons have not implemented their own suicide-prevention plans, keep too many mentally ill inmates in high-security lockups and are understaffed by more than 20 percent.

April 7, 2013 in Prisons and prisoners, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, April 06, 2013

"Toward a Right to Litigate Ineffective Assistance of Counsel"

The title of this post is the title of this timely new paper by Ty Alper. Here is the abstract:

The Supreme Court's decisions in Martinez v. Ryan and Maples v. Thomas have been hailed as evidence of the Court's increasing willingness to grant some relevance to the competence of postconviction counsel.  While this may be true, for the vast majority of defendants convicted of noncapital crimes, the rulings provide little in the way of immediate assistance because most such prisoners have no federal habeas counsel and therefore no means to take advantage of the procedural protections Martinez and Maples provide.

In this Article, I argue that, in these cases, the Court has taken a step closer to recognizing not necessarily a broad right to postconviction counsel but rather a narrower yet critical right to raise a claim of ineffective assistance of trial counsel in at least one forum.  At least with respect to claims of ineffective assistance of trial counsel, the Court appears to be moving toward recognition that the right to raise such claims is as important as the right to raise record-based claims typically brought by constitutionally required appellate counsel.  My view is that this development is both far more significant than any signals the Court has sent with respect to the provision of postconviction counsel generally, and more likely to eventually vindicate the bedrock principle embodied in Gideon v. Wainwright.

April 6, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Friday, April 05, 2013

Rand Paul begins forceful pitch in campaign against federal mandatory minimums

Rand Paul

I suspect that US Attorney General Eric Holder and US Senator Rand Paul do not have the same position on a lot of different issues.  And yet, today in the post right after this post covering a big speech by AG Holder in which he suggests exploring ways "to give judges more flexibility in determining certain sentences," I get to highlight this new op-ed in the Washington Times by Senator Paul which assails federal minimum sentencing laws for taking sentencing authority "away from the jury and judge."

I urge everyone to read Senator Paul's op-ed in full, and here are just a few passages that prompted me to find and post the picture that accompanies this posting:

Mandatory minimums reflect two of the biggest problems in Washington: The first problem is the idea that there should be a Washington-knows-best, one-size-fits-all approach to all problems, be they social, educational or criminal. This approach leads to our second problem: Washington’s habit of undermining the system our Founding Fathers created. Their system left as much power as possible in the hands of local and state officials, and sought to treat people as individuals, not as groups or classes of people.

Last year in my community, a family lost one of their sons to an overdose. They almost lost their other son to a mandatory minimum sentencing. Federal law requires a mandatory 20-year sentence if a death occurs, even an accidental one. If prosecutors had charged the surviving brother in federal court, he would have received a mandatory 20-year sentence.

When a crime is committed, it should fall to the local prosecutor, judge and jury to determine the guilt or innocence, as well as determine the just punishment for the crime. In the current system of federal mandatory-minimum sentencing, the authority is taken away from the jury and judge, and given by the legislature to the executive. Prosecutors already have tremendous power because they collect the evidence and choose which crimes to charge. If a mandatory penalty is attached to that crime, the prosecutor then exerts much influence over the entire procedure, including the sentence.

Our Founding Fathers went to great lengths to prevent the executive and prosecutors from obtaining too much power. The Fourth Amendment was written to stop overzealous searches, and the Fifth and Sixth Amendments were written to establish full due process as an inalienable right.

Ignoring these rights comes with several tangible costs. In the last 30 years, the number of federal inmates has increased from 25,000 to nearly 219,000. That is nearly a 10-fold increase in federal prisoners, each of whom cost the taxpayers $29,027 a year to incarcerate. The federal prison budget has doubled in 10 years to more than $6 billion.

Half of the people sentenced to federal prison are drug offenders. Some are simply drug addicts, who would be better served in a treatment facility. Most are nonviolent and should be punished in ways that do not require spending decades in a federal prison, with meals and health care provided by the taxpayers.

For these reasons and others, last week I joined my colleague Sen. Patrick Leahy, Vermont Democrat, in introducing a bill that would authorize judges to disregard federal mandatory-minimum sentencing on a case-by-case basis.

Some might think it is unusual for a conservative Republican to join a liberal Democrat on such a bill, but contrary to popular belief, the protection of civil liberties and adherence to the Constitution should be a bipartisan effort....

I will speak more about this in a speech I am giving at Howard University on April 10.  I hope to engage conservatives and liberals in a discussion of how the federal government should handle mandatory minimums and the reforms needed to secure our Fourth, Fifth and Sixth Amendment rights.  How much of our liberty are we willing to yield to the government in the name of a false sense security?  This is a debate that crosses many issues, and deserves full and fair exploration.

Ever the sentencing geek, I am already giddy in anticipation concerning Senator Paul's upcoming speech on these issues at Howard University. The setting is notable in part because way back in 2007, as blogged here and here, then-Senator Obama gave a big speech about the need for federal criminal justice reforms.   I would be foolish to assert that talking the talk about criminal justice at Howard University is a key step toward becoming US President, but I do not think it is foolish to assert that Rand Paul has (in my view, wisely) perhaps figured out that it may be politically valuable to speak forcefully and in constitutional terms about the need for significant federal criminal justice reform.

Some recent and older related posts:

April 5, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Potent new quote from AG Eric Holder: "Too many people go to too many prisons for far too long for no good law enforcement reason"

I am very pleased to have seen from this new Politico article that Attorney General Eric Holder last night stressed the need for national criminal justice reform at the end of a major speech delivered at the 15th Annual National Action Network Convention. The full text of the lengthy speech is available at this link, and here is some of the context for the potent quotable stressed above:

[W]e must also move to improve our nation’s criminal justice system — and to promote public safety, deterrence, efficiency, and fairness at every level. We’re providing increased support for programs offering quality legal representation to those who cannot afford it, in accordance with the Supreme Court’s decision in Gideon v. Wainwright — a landmark ruling, handed down 50 years ago last month, which held that every defendant charged with a serious crime has the right to an attorney.

We’re also asking larger questions about the mechanisms of our criminal justice system as a whole – and, where appropriate, exploring ways to recalibrate this system and ensure that it’s as fair and effective as possible.

Already, this urgent need has driven the Administration to advocate — successfully — for the elimination of the unjust 100-to-1 sentencing disparity between crack and powder cocaine.  As we speak, it is propelling us to become both smarter and tougher on crime by facilitating more effective policing at the state and local levels; broadening the impact of innovative prevention, intervention, enforcement, and reentry programs; using intelligence-based strategies to target federal law enforcement resources and assistance to the areas where they’re most needed; and seeking new ways to help crime victims — especially victims of sexual assault — to make their lives whole again.

Our reform efforts are also driving us to engage allies like the Department of Education — and others — to confront the “school-to-prison pipeline” that transforms too many educational institutions from doorways of opportunity into gateways to the criminal justice system.  They are informing essential programs like the Department’s Defending Childhood Initiative and the National Forum on Youth Violence Prevention — which are helping to rally federal leaders, state officials, private organizations, and community groups to examine how we can better understand, address, and prevent youth exposure to violence — as victims or as witnesses.  And these efforts are inspiring us to forge new partnerships like the Federal Interagency Reentry Council — a group I first convened in 2011, which brings together leaders from 20 federal agencies to address barriers that formerly incarcerated individuals face in rejoining their communities, to promote best practices, and to confront these and related issues as more than just criminal justice problems.

The sheer number of Americans contending with these challenges is staggering. Well over two million people are currently behind bars in this country.  As a nation we are coldly efficient in our incarceration efforts. One in 28 children has a parent in prison.  For African American children, this ratio is roughly 1 in 9.  In total, approximately 700,000 people are released from state and federal prisons every year.  Nine to 10 million more cycle through local jails.  And 40 percent of former federal prisoners — along with more than 60 percent of former state prisoners — are rearrested or have their supervision revoked within three years after their release.

Now, there’s no question that incarceration has a role to play in our criminal justice system.  But there’s also no denying that widespread incarceration at the federal, state, and local levels imposes a significant economic burden — totaling nearly $83 billion in 2009 alone — along with human and moral costs that are impossible to calculate.  As a nation — and as a people — we pay a high price whenever our criminal justice policies fall short of fairly delivering outcomes that deter and punish crime, keep the American people safe, and ensure that those who pay their debts to society have the chance to become productive, law-abiding citizens.

This is why — as we look toward the future — we must promote public safety and deterrence while at the same time ensuring efficiency and fairness. I am concerned by a troubling report released by the United States Sentencing Commission in February, which indicates that — in recent years — black male offenders have received sentences that are nearly 20 percent longer than those imposed on white males convicted of similar crimes. The Department of Justice is determined to continue working alongside Congressional leaders, judges, law enforcement officials, and independent groups — like the American Bar Association — to study the unintended collateral consequences of certain convictions; to address unwarranted sentencing disparities; and — where appropriate — to explore ways to give judges more flexibility in determining certain sentences.  Too many people go to too many prisons for far too long for no good law enforcement reason.  It is time to ask ourselves some fundamental questions about our criminal justice system.  Statutes passed by legislatures that mandate sentences, irrespective of the unique facts of an individual case, too often bear no relation to the conduct at issue, breed disrespect for the system, and are ultimately counterproductive. It is time to examine our systems and determine what truly works.  We need to ensure that incarceration is used to punish, to rehabilitate, and to deter — and not simply to warehouse and forget.

I am so excited to now see that our nation's top law enforcement officer is now expressly saying, without reservation and in no uncertaint terms, what I have long believed about the big government waste in our massive modern criminal justice systems: "Too many people go to too many prisons for far too long for no good law enforcement reason."  I hope that, in addition encouraging that "ask ourselves some fundamental questions about our criminal justice system," that he will actively take the many possible steps within his power to get some of the people in prison for too long to ensure those who are now being just warehoused are no longer forgotten.

April 5, 2013 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (43) | TrackBack

"Nearly three-quarters of Americans (72%) say that, in general, government efforts to enforce marijuana laws cost more than they are worth"

4-4-13-21The title of this post is the sentence and finding that struck me as the most notable and most interesting data point emerging from the just-released survey on marijuana law and policy by the Pew Research Center.  This extended press release from the folks at Pew, which carries the headline "Majority Now Supports Legalizing Marijuana," reports on all of the survey's main findings, and here are a few excerpts:

For the first time in more than four decades of polling on the issue, a majority of Americans favor legalizing the use of marijuana.  A national survey finds that 52% say that the use of marijuana should be made legal while 45% say it should not.

Support for legalizing marijuana has risen 11 points since 2010.  The change is even more dramatic since the late 1960s. A 1969 Gallup survey found that just 12% favored legalizing marijuana use, while 84% were opposed.

The survey by the Pew Research Center, conducted March 13-17 among 1,501 adults, finds that young people are the most supportive of marijuana legalization.  Fully 65% of Millennials — born since 1980 and now between 18 and 32 — favor legalizing the use of marijuana, up from just 36% in 2008.  Yet there also has been a striking change in long-term attitudes among older generations, particularly Baby Boomers.

Half (50%) of Boomers now favor legalizing marijuana, among the highest percentages ever.  In 1978, 47% of Boomers favored legalizing marijuana, but support plummeted during the 1980s, reaching a low of 17% in 1990.  Since 1994, however, the percentage of Boomers favoring marijuana legalization has doubled, from 24% to 50%....

The survey finds that an increasing percentage of Americans say they have tried marijuana.  Overall, 48% say they have ever tried marijuana, up from 38% a decade ago. Roughly half in all age groups, except for those 65 and older, say they have tried marijuana....

Among those who say they have used marijuana in the past year, 47% say they used it “just for fun,” while 30% say it was for a medical issue; 23% volunteer they used it for medical purposes and also just for fun....

More recently, there has been a major shift in attitudes on whether it is immoral to smoke marijuana.  Currently, 32% say that smoking marijuana is morally wrong, an 18-point decline since 2006 (50%).  Over this period, the percentage saying that smoking marijuana is not a moral issue has risen 15 points (from 35% then to 50% today).

Amid changing attitudes about marijuana, a sizable percentage of Americans (72%) say that government efforts to enforce marijuana laws cost more than they are worth.  And 60% say that the federal government should not enforce federal laws prohibiting the use of marijuana in states where it is legal....

While Americans increasingly support legalizing marijuana and fewer see its potential dangers, many still do not like the idea of people using marijuana around them.  About half (51%) say they would feel uncomfortable if people around them were using marijuana, while 48% would not feel uncomfortable.  As with nearly all attitudes about marijuana, there are substantial age differences in discomfort with others using marijuana — 74% of those 65 and older say they would be uncomfortable if people around them used marijuana, compared with 35% of those under 30.

I genuinely wonder if there is any other serious federal felony law for which 3 out of every 4 persons would say that government enforcement efforts "cost more than they are worth." I also wonder whether and how these public opinions will start to have a tangible impact on federal marijuana laws, policies and practices.

April 5, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

New ACLU of Ohio report documents "contemporary debtors’ prisons"

DebtorsPrisonAs reported in this local article, headlined "Poor unfairly jailed for failing to pay fines, report says," a new report by the ACLU of Ohio makes a set of provocative assertions about crime, punishment and modern economic realities. Here are the basics:

Courts in at least seven counties routinely jail Ohioans for owing court fines and fees, in violation of the state constitution and laws and against a 1983 U.S. Supreme Court ruling, according to a new study released by the American Civil Liberties Union of Ohio.

Ohio Supreme Court Chief Justice Maureen O’Connor says the report raises issues that “can and must receive further attention.”

While many defendants can pay their fines and walk away, for Ohio’s poor a fine “is just the beginning of a process that may involve contempt charges, mounting fees, arrest warrants, and even jail time,” the report says.

The ACLU documented debtors prison practices in Springboro mayor’s court and municipal courts in Hamilton County, Sandusky, Norwalk, Parma, Mansfield and Bryan....

Other courts, including Moraine mayor’s court, employ policies such as arresting defendants for not showing up for hearings where they’re supposed to explain why they haven’t paid their fines, said Mike Brickner, ACLU of Ohio communications director. The hearings are sometimes scheduled weekly, increasing the chances that the defendant will eventually miss one and face a bench warrant, he said....

The ACLU calls on the Ohio Supreme Court to issue administrative rules to require courts to hold hearings to determine whether a defendant is unable to pay fines owed or if they’re just unwilling.  Even if a defendant is just refusing to pay, he or she is supposed to be credited $50 per day spent in jail against the debt.

Jailing people costs between $58 and $65 per night, plus the time spent by officers and clerks to track the person down, arrest them, book them into the jail and file paperwork. Often the costs exceed the debts owed.  “It is not a good deal for the taxpayers.  (The defendants) aren’t not paying because they don’t feel like it.  They’re not paying because the literally have no money,” Brickner said.   Brickner said it creates a two-tier justice system for those who are able to pay fines and those who can’t.

The ACLU of Ohio's report is titled "The Outskirts of Hope" and is available at this link.  Here are a few paragraphs from the report's introduction:

The resurgence of contemporary debtors’ prisons sits squarely at this intersection of poverty and criminal justice. While this term conjures up images of Victorian England, the research and personal stories in this report illustrate that debtors’ prisons remain all too common in 21st century Ohio. In towns across the state, thousands of people face the looming specter of incarceration every day, simply because they are poor.

Taking care of a fine is straightforward for some Ohioans — having been convicted of a criminal or traffic offense and sentenced to pay a fine, an affluent defendant may simply pay it and go on with his or her life.  For Ohio’s poor and working poor, by contrast, an unaffordable fine is just the beginning of a protracted process that may involve contempt charges, mounting fees, arrest warrants, and even jail time.  The stark reality is that, in 2013, Ohioans are being repeatedly jailed simply for being too poor to pay fines. The U.S. Constitution, the Ohio Constitution, and Ohio Revised Code all prohibit debtors’ prisons. The law requires that, before jailing anyone for unpaid fines, courts must determine whether an individual is too poor to pay.  Jailing a person who is unable to pay violates the law, and yet municipal courts and mayors’ courts across the state continue this draconian practice. Moreover, debtors’ prisons actually waste taxpayer dollars by arresting and incarcerating people who will simply never be able to pay their fines, which are in any event usually smaller than the amount it costs to arrest and jail them.

The Outskirts of Hope documents how contemporary debtors’ prisons work in Ohio and profiles some of the real people who have been impacted by this system.  The constant threat of incarceration has left an imprint on each of these individuals’ lives, interfering with their families, health, employment, and housing.  By shining a light on this dark practice in Ohio, this report hopes to move our state towards the promise of greater justice and fairness for those with the fewest resources.

April 5, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, April 04, 2013

Resentencing of Enron CEO Jeff Skilling perhaps on the verge of a resolution through a sentencing deal

This new CNBC report, which has a somewhat inaccurate headline and first sentence, provides an interesting update on a long-delayed high-profile resentencing.  The article is headlined "Enron's Jeff Skilling Could Get Early Release From Prison," and the first sentence reads as follows: "Former Enron CEO Jeffrey Skilling, who is serving a 24-year prison term for his role in the energy giant's epic collapse, could get out of prison early under an agreement being discussed by his attorneys and the Justice Department, CNBC has learned."  The rest of the story explain what is going on and reveals why I call the start of the piece inaccurate:

Skilling, who was convicted in 2006 of conspiracy, fraud and insider trading, has served just over six years. It is not clear how much his sentence would be shortened under the deal.

A federal appeals panel ruled in 2009 that the original sentence imposed by U.S. District Judge Sim Lake was too harsh, but a re-sentencing for the 59-year-old Skilling has repeatedly been delayed, first as the appeals process played out, and then as the negotiations for a deal progressed. Those talks had been a closely guarded secret, but Thursday the Justice Department quietly issued a notice to victims required under federal law:

"The Department of Justice is considering entering into a sentencing agreement with the defendant in this matter," the notice reads. "Such a sentencing agreement could restrict the parties and the Court from recommending, arguing for, or imposing certain sentences or conditions of confinement. It could also restrict the parties from challenging certain issues on appeal, including the sentence ultimately imposed by the Court at a future sentencing hearing."

A Justice Department spokesman declined to comment. Skilling's longtime defense attorney, Daniel Petrocelli, could not immediately be reached for comment.

Lake, who imposed the original sentence, would have the final say in the sentence. The posting of the notice, however, suggests the parties have some indication he will go along. Lake held a private conference call with attorneys for both sides last month.

For Skilling, who has consistently maintained his innocence, an agreement would end a long ordeal, although his conviction on 19 criminal counts would likely stand. The government, meanwhile, would avoid a potentially messy court battle over alleged misconduct by the Justice Department's elite Enron Task Force appointed in the wake of the company's sudden failure in 2001.

Skilling's attorneys had planned to move for a new trial based on that alleged misconduct. Under a sentencing agreement, that motion would likely be dropped.

UPDATE: Thanks to a helpful reader, I discovered that the crime victim notice from DOJ referenced in this article is available at this link.

April 4, 2013 in Victims' Rights At Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Perfect retributivism?: Saudi court orders paralysis as punishment for assault that resulted in paralysis

A colleague sent me this remarkable international sentencing story, headlined "Surgical Paralysis Ordered in Saudi Arabia as Punishment for Teenage Assault: Spine-for-a-spine punishment has mother 'frightened to death'."  Here are the basics:

Ali Al-Khawahir, 24, is awaiting court-ordered surgical paralysis in Saudi Arabia for an assault he committed when he was 14 years old, according to news reports.

Al-Khawahir has reportedly spent 10 years in prison since stabbing a friend in the spine during a fight. The wound left his friend paralyzed.  The Saudi legal system allows eye-for-an-eye punishments.

The convicted man's mother told Arabic-language newspaper Al-Hayat that the family is seeking help raising $270,000 in "blood money," which in Saudi Arabia can be requested by a crime's victim -- or victim's family in cases of murder -- in exchange for punishment. "We don't have even a tenth of this sum," she said, according to a translation by The Guardian....

Amnesty International condemned the sentence as "outrageous" in a statement released this week. "Paralysing someone as punishment for a crime would be torture," said Ann Harrison, the organization's Middle East and North Africa deputy director. "That such a punishment might be implemented is utterly shocking."  Tooth extractions, said Amnesty, have also been ordered in Saudi Arabia.

Israeli news website Ynet reports that 13 years ago a Saudi hospital gouged out an Egyptian man's eye as punishment for an acid attack that injured another man. A similar sentence for an Indian man six years later was set aside after international outrage.

If victims do not seek "blood money" or perpetrators cannot afford to pay the amount requested, the sentence is carried out.

Though I never want to be accused of defending this seemingly brutal form of retributivist punishment, I cannot help but note that a sentence of LWOP (especially if it involves extended confinement in a supermax-type prison) could and would in some cases be more limiting of a offender's freedom than being confined to a wheelchair for life.  And, of course, there are many (perhaps thousands) of folks serving LWOP sentences in US prisons for crimes less severe than aggravated assault leading to permanent paralysis. (Recall that Terrance Graham was serving an LWOP in Florida for robbery offenses committed while a teenager until the US Supreme Court decided the sentence was unconstitutional.)

As should be obvious, I am not trying to make the case for either paralysis or LWOP as justifiable punishments, but rather I am trying to suggest that some reasons we may find this court-ordered lifetime confinement to a wheelchair os horrific ought also give us reason to be deeply troubled by court-ordered lifetime confinement to a cage.  More broadly, I mean for this story and my headline to highlight that an aggressive commitment to the deontological punishment philosophy of retributivism may make it difficult to assail, at least in theory, the distinctive punishment ordered by the Saudi court in this case.

April 4, 2013 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (21) | TrackBack

"Pretrial Detention and the Right to Be Monitored"

The title of this post is the title of this notable new paper available via SSRN by Samuel Wiseman. Here is the abstract:

The typical academic concern with respect to advancing criminal justice technology, be it wiretaps or surveillance drones, is that there will be too much of it.  In the context of pretrial justice, however, we have the opposite problem.  Although detention for dangerousness has received far more attention in recent years, a significant number of non-dangerous but impecunious defendants are jailed to ensure their presence at trial due to continued, widespread reliance on a money bail system.  Increasingly sophisticated forms of electronic monitoring have the potential to mitigate flight risk at least as well as money bail at a cost to defendants and the state lower than money bail’s necessary concomitant, pretrial detention.  But the long, mostly sad history of bail reform efforts suggests that, unlike wiretaps, electronic monitoring in lieu of detention will not be adopted through the political process in many jurisdictions.

This paper develops two related claims.  First, in the near term, electronic monitoring will present a superior alternative to money bail for addressing flight risk.  In contrast to previous proposals for reducing pretrial detention rates, including increased use of personal recognizance bonds and varying forms of supervision by pretrial services agencies, electronic monitoring has the potential to both reduce fugitive rates (by allowing the defendant to be easily located) and government expenditures (by reducing the number of defendants detained at state expense).  Moreover, the usual objections to government monitoring -- the intrusion on individual privacy and the threat of surveillance extending to new segments of society -- have relatively little force in the pretrial context, where detention currently all but extinguishes privacy interests, and the number of criminal defendants is largely independent of the means of preventing flight.

Secondly, despite the potential benefits to defendants and governments, electronic monitoring is not likely to be adopted by legislative or executive action.  The commercial bail industry has a significant financial incentive to maintain the status quo, and it has repeatedly blunted previous reform efforts.  Thus, although there is a lively debate over the institutions best suited to respond to advances in investigative technology, here the best prospect for meaningful change is clearly the judiciary generally, and the Eighth Amendment’s prohibition of Excessive Bail more specifically.  To achieve this goal, however, the courts will, for the first time, have to develop a meaningful jurisprudence of excessiveness to test the fit between the government’s pretrial goals and the means employed to accomplish them.  The paper begins this inquiry, arguing that the text, purpose, and history of the Amendment all support the requirement that the chosen means be, at minimum, not substantially more burdensome than necessary.  Under this standard, a money bail system that leads to widespread detention without a corresponding increase in performance or savings cannot survive in the face of a less restrictive technological alternative.

Long-time readers know I am a fan of both the Eighth Amendment and of the potential of technocorrections to reduce the modern incarceration "footprint."  I thus find especially intriguing and appealing the notion that the Eighth Amendment might give defendants a right to demand a technocorrections alternative to incarceration in some settings.

April 4, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, April 03, 2013

Some notable headlines in wake of state prosecutors' decision to seek death penalty for James Holmes

I was intrigued to see this set of notable anti-death penalty headlines and commentaries in a bunch of major news sources this afternoon as a follow-up to the recent decision by Colorado state prosecutors to seek a death sentence in the Aurora mass shooting case:

From The Atlantic here, "In Aurora Shooting Case, a Public Pushback Against the Death Penalty"

From The Guardian here, "Even Aurora shooter James Holmes shouldn't get the death penalty"

From CNN here, "Why death penalty for Holmes wouldn't bring justice"

From the Daily Beast here, "Why My Mother Would Save Aurora Shooter James Holmes"

Also from the Daily Beast here, "Death Penalty Is the Wrong Punishment for James Holmes"

I think most of the authors of these pieces are committed abolitionists, so their positions on this high-profile case is not all that surprising.  But I still think it is notable and significant that so many commentators are quick to take up the challenge of seeking to explain and justify their opposition to the death penalty even in a case in which the crime is so horrific.

Recent and older related posts (with lots of comments):

April 3, 2013 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

For blogging about circuit sentencing opinions, three is a magic number

Schoolhouse_Rock_3_Number_Red_Juniors_POPBecause I have been on the road a lot lately (and will be on the road again starting tomorrow), I have had precious little time to keep up with or blog about notable recent circuit sentencing opinions.  And today I feel extra overwhlemed, in part because potentially blog-worthy opinions have been handed down in the last few days in nearly every federal circuit.  But, as the title of this post and the classic picture is meant to suggest, on this the third day of the month there are three new opinions from all three of the three-magical circuits that merit taking the time for a blog shout-out:

From the Third (3 x 1) Circuit, we get US v. Zabielski, No. 11-3288 (3d Cir. Apr. 3, 2013) (available here), which starts this way:

 

In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the United States Sentencing Guidelines could not constitutionally be applied as diktats.  Rather than scrap the Guidelines entirely, the Court left them intact as advisory and trial judges may vary from them, within reason, after applying the relevant provisions of 18 U.S.C. § 3553(a).  Before doing so, it is important that trial judges accurately calculate the Guidelines range and correctly rule on departure motions.  Failure to accomplish either of these tasks typically will cause us to vacate and remand for resentencing.  In some cases, however, the procedural error committed by the sentencing court is so insignificant or immaterial that prudence dictates that we hold such error harmless.  Because we view this appeal as one of those cases, we will affirm Appellant Mark Zabielski‘s judgment of sentence.

 

From the Sixth (3 x 2) Circuit, we get US v. Doyle, No. 12-5516 (6th Cir. Apr. 3, 2013) (available here), which starts this way:

After moving to Tennessee, Rashan Doyle was charged with failure to register as a sex offender, in violation of 18 U.S.C. section 2250(a), to which he pleaded guilty without a plea agreement.  The district court sentenced Doyle to three years and one month in prison followed by ten years of supervised release, upon which the district court imposed four special conditions, numbered three, four, six and eight.  Doyle appeals the district court’s imposition of these four special conditions of supervised release.  Because the district court erred procedurally by failing to explain its reasons for imposing the special conditions, and because the record does not otherwise illuminate the reasons for them, we VACATE the district court’s imposition of the special conditions of supervised release and REMAND for resentencing proceedings consistent with this opinion. 

From the Ninth (3 x 3) Circuit, we get US v. Augustine, No. 12-50061 (9th Cir. Apr. 3, 2013) (available here), which starts this way:

In the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111–220, 124 Stat. 2372, Congress addressed the inequitable disparity between the sentences prescribed for crack and powder cocaine offenses. The question in this case is whether a defendant sentenced for a crack cocaine offense before the FSA was enacted is eligible for a reduced sentence under 18 U.S.C. § 3582(c)(2).  We hold, consistent with all circuits to have addressed the issue, that the FSA’s lowered mandatory minimums are not available to such individuals.

 

April 3, 2013 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

"Judge to retire after sending racist Obama email"

The title of this post is the headline of this notable new AP article following up on a federal judiciary story that generated some blog-worthy discussions around a year ago.  Here are the basics (followed by  back-story links to prior posts):

Montana's chief federal judge will retire following an investigation into an email he forwarded that included a racist joke involving President Barack Obama.

U.S. District Judge Richard Cebull had previously announced he would step down as chief circuit judge and take a reduced caseload, but he informed the 9th U.S. Circuit Court of Appeals that he now intends to fully retire May 3. The appellate court posted a statement by Chief Judge Alex Kozinski on its website Tuesday announcing Cebull had submitted the retirement letter.

The March 29 letter comes after the appellate court's Judicial Council issued a March 15 order on the investigation into the February 2012 email, but appellate court spokesman David Madden could not say whether Cebull resigned because of the order. "The misconduct process is confidential. I am not privy to what the order said nor do I know what Judge Cebull's motivations were," Madden said in Wednesday email.

The council's order will remain confidential during an appeal period, which concludes May 17, Madden said. The council will make an announcement after Cebull's retirement takes effect, he said, but added that he was unable to answer when the order or the letter will be released to the public.

A Cebull aide directed calls for comment to Clerk of Court Tyler Gilman, who said Wednesday that Cebull would not have any comment other than the court's statement. He declined to release the resignation letter or describe what it said.

Cebull wrote a letter of apology to Obama and filed a complaint against himself after The Great Falls Tribune published the contents of the email, which included a joke about bestiality and the president's mother.

The Billings judge forwarded the email from his chambers to six other people on Feb. 20, 2012, the newspaper reported.  Two other groups also demanded an investigation, with one, the Montana Human Rights Network, starting an online petition calling for Cebull's resignation.

Kim Abbott, the network's co-director, said Wednesday she was pleased with the announcement but hopes to see the results of the investigation.  "The email really called into question his ability to treat women and people of color fairly, so we're happy Montanans will get to appear before a different judge," Abbott said.

The complaints were referred to a special committee appointed by the appellate court to investigate whether Cebull's email constituted misconduct.  Kozinski's statement said the committee submitted a report to the Judicial Council in December after "a thorough and extensive investigation" that included interviews with witnesses and Cebull and going over related documents. The council issued its order based on that report....

Cebull previously said he would take senior status March 18, which would have allowed another judge to be appointed while he continued working with a reduced caseload. U.S. Sen. Max Baucus then formed a committee to replace Cebull and another judge taking senior status, with Baucus recently recommending that Obama appoint state District Judge Susan Watters of Billings to take Cebull's spot on the bench.

The new chief federal judge, U.S. District Judge Dana Christensen, plans to meet with other judges to discuss how to handle the Cebull's cases, Gilman said. Cebull was a Billings attorney for nearly 30 years before becoming a U.S. magistrate in Great Falls in 1998. He became a district judge in 2001 and has served as chief judge of the District of Montana since 2008.

Related prior posts (all from March 2012):

April 3, 2013 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, April 02, 2013

Guest post by Norm Pattis on his new book, "Juries and Justice"

Juries-and-Justice_Cover_thumbI was pleased to receive from noted criminal defense and civil rights lawyer Norm Pattis the following guest-post concerning the themes in his new book, "Juries and Justice: Saving a System Under Fire":

Juries, we like to tell ourselves, are one of the crown jewels of the American experiment in republicanism.  King George III’s interference with the right to jury trials was, after all, one of the reasons cited for rebellion in the Declaration of Independence. Yet today, a summons to jury duty is regarded by many as akin to a trip to the dentist’s office.  Attend jury selection some time and listen to the excuses people offer as to why they cannot serve.  It’s depressing.  Is it possible that one reason for the decline in interest in jury service is that we have transformed jurors into little more than assembly line workers?

At the time of the founding, jurors had the right to decide both facts and law.  In other words, juries could, and did, nullify the law when they thought the law was unfairly, or improperly, applied.  Thus, while John Peter Zenger was undoubtedly guilty in the 1730s of publishing seditious, unlawful comments about William Cosby, the governor of New York, his jury voted to acquit, expressing its sense that the law was wrong.  Today, Zenger would have been convicted by a jury told that it had to follow the law regardless of whether jurors agreed or disagreed with the law.

Jury nullification is prohibited in the federal courts.  In 1895, the Supreme Court ruled a defendant had no right to have a jury informed of its ability to nullify.  Sparf v. United States, 156 U.S. 51 (1895).  Only a handful of states permit lawyers to argue nullification to juries today.  New Hampshire, for example, passed legislation in 2012 permitting the practice.

What irony, then, to permit prosecutors to argue that a defendant must be held “accountable,” the favorite trope of prosecutors nationwide, while at the same time hobbling a jury’s ability to render a decision about whether the prosecution has responsibly used its power to charge a person with a crime.

Jury service offers ordinary people an opportunity to sit in judgment over the day-today conduct of government officials in a way that voting does not.  By the time a candidate for office has been vetted, funded, and groomed by the major parties and Political Action Committees, the candidates too often appear beholden to big money.  Is it any wonder that the stock market has “recovered,” creating great wealth for a few, while many remain out of work, apparently locked out of an economy that doesn’t work for them?

Why not give jurors the chance to express themselves by nullifying the law as a matter of political protest?  Why, for example, can’t jurors simply say “no” when the prosecution seeks to imprison a young man or woman for casual drug use, but decides not to prosecute a banker who engaged in what amounted to fraud by selling bad mortgages?

Jury nullification is risky.  Didn’t juries nullify in the deep South in the 1960s by refusing to convict southerners of acts of racially motivated violence?  In other words, isn’t the rule of law imperiled when it plays a subordinate role to a jury’s passion and prejudice?

That risk is real.  But, on balance, the greater risk seems to be a people adrift, without a real sense of efficacy.  If government were held accountable for the consequences of the day-to-day decisions it makes in jury rooms, a habit of participation might be fostered in a people consigned to playing the role of passive consumers every so often on polling day. Tweedledum and Tweedledee might be forced to listen if jurors were given choices in jury rooms about whether the law served purposes the people endorse.

I say empowering juries could empower communities, and make government more responsive to the felt necessity of the times.  We can increase a sense of the legitimacy of public institutions by getting jurors more involved in deciding not just whether a defendant is guilty of the crime charged, but whether the government has used our resources wisely in deciding to prosecute in the first instance.

I say it’s time to restore the right to nullify in courts throughout the land.  Will it yield chaos and unpredictability?  Perhaps.  Who said order for order’s sake is a good thing? Justice is too important to be left to judges and lawyers.  Ordinary people live with the consequences of what goes on in a courtroom; these people should have a greater role in deciding the cases they hear.

April 2, 2013 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Protests scuttle private prison group's plans to get name on university stadium

As reported in this prior post a few weeks back, the private prison corporation GEO Group Inc. had a deal in the works to give a huge check to a university in Florida and to get a stadium named after it in return.  But, as highlighted in this new Huffington Post piece, the deal is off:

It was a move that baffled sports marketing experts: Florida Atlantic University struck a deal in February to name its football stadium after a private prison company.

But after more than a month of backlash from students, faculty and human rights groups, the GEO Group Inc. pulled out of the $6 million deal with Florida Atlantic on Monday, citing the "distraction" it had caused for the company and the university.

"What was originally intended as a gesture of GEO's goodwill to financially assist the University's athletic scholarship program has surprisingly evolved into an ongoing distraction to both of our organizations," GEO Group chairman and chief executive George Zoley said in a statement released by the university on Monday.

Soon after the deal was announced in mid-February, it got attention in national news outlets and garnered a segment on the Colbert Report. Citing lawsuits against the company and federal reports detailing horrible conditions at a GEO-operated youth prison in Mississippi, host Stephen Colbert quipped: "This criticism is just one of the downsides of paying millions of dollars to have people pay attention to your company …. People start paying attention to your company."

The GEO Group is based in Boca Raton, Fla., just a few miles from Florida Atlantic University. Zoley, the company's chairman and chief executive, received bachelor's and master's degrees from the university and was a former chairman of the board of trustees. The university had been seeking a corporate sponsor for two years to pay down the debt on its newly built stadium, and the GEO Group pledged to pay $6 million over 10 years in exchange for the naming rights.

Student groups at Florida Atlantic quickly coalesced against the GEO Group Stadium deal, dubbing the facility "Owlcatraz" -- a play on the university's mascot, an owl. They staged a sit-in outside the university president's office in February and demanded that university leadership organize forums and discussions about GEO's human rights record.

The school's faculty senate overwhelmingly passed a resolution against the stadium name last month, noting that GEO Group's business practices "do not align with the missions of the university."...

The GEO Group's revenue has nearly tripled over the last decade, as the private prison company has captured greater shares of state and federal prison populations, including facilities that hold undocumented immigrants. GEO has also donated more than $1.2 million to the Florida Republican Party over the last three election cycles. Republicans in the state legislature last year came close to approving a massive expansion of private prisons in south Florida, an opportunity that the GEO Group mentioned frequently in calls with investors....

In a statement, Florida Atlantic President Mary Jane Saunders said Zoley and the company "have been loyal supporters of this university" and that she was thankful for all organizations that give to support "our mission, our pursuit of academic excellence and valuable contributions to this community."...

It is unclear where the university will get the money needed to pay off debt for its stadium. FAU had been searching for more than two years for a corporate sponsor before GEO Group agreed to pay $6 million over 10 years. The university built the $70 million football stadium in 2011, borrowing more than $45 million.

Some recent and older related posts: 

April 2, 2013 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

"Legal Punishment as Civil Ritual: Making Cultural Sense of Harsh Punishment"

The title of this post is the title of this notable new paper by SpearIt available via SSRN. Here is the abstract:

This work examines mass incarceration through a ritual studies perspective, paying explicit attention to the religious underpinnings. Conventional analyses of criminal punishment focus on the purpose of punishment in relation to legal or moral norms, or attempt to provide a general theory of punishment.  The goals of this work are different, and instead try to understand the cultural aspects of punishment that have helped make the United States a global leader in imprisonment and execution.  It links the boom in incarceration to social ruptures of the 1950s and 1960s and posits the United States’ world leader status as having more to do with culture than crime.

This approach has been largely overlooked by legal scholars, yet ritual studies enhance understanding of law and legal institutions. A ritual perspective illuminates the religious history of criminal justice, challenges traditional dogmas that hold punishment as a rational response to crime, and explains why some people must suffer so that others may feel secure.

April 2, 2013 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, April 01, 2013

"James Holmes' Victims Applaud Death Penalty Plan: 'I Want Him Dead'"

The title of this post is the notable headline of this ABC News report on the (not-very-surprising) decision today by Colorado prosecutors to seek the death penalty for mass murderer James Holmes. Here are excerpts:

Friends of Aurora shooting victims applauded prosecutors' decision today to seek the death penalty for James Holmes, with one friend saying he wanted to be in the room if Holmes is executed.

"I don't know if it's painful. I want him dead. I just want to be there in the room when he dies," Bryan Beard said outside the Colorado courthouse. "He took one of my friends from this Earth. Death equals death." Beard's close friend Alex Sullivan was one of the 12 people killed in the shooting on July 20 last year. It was Sullivan's 27th birthday.

Prosecutors from the Arapahoe County District Attorney's Office said at a hearing today in Aurora, Colo., that they will seek execution for Holmes if he is convicted. "For James Eagan Holmes, justice is death," District Attorney George Brauchler said in court.

A couple of victims' relatives cried. Holmes' parents were also in court. He looked at them when he came in. After the announcement, Holmes' father nodded his head and put his arm around his wife.

Brauchler said his office has reached out to 800 victims and that he had personally spoken with relatives of 60 victims who died and were injured. Brauchler said he didn't speak to anyone about the decision.

"They are trying to execute our client and we will do what we need to do to save his life," public defender Tammy Brady said in a voice shaking with anger. "We are asking the court not to rush this."

Judge Carlos Samour, the case's new judge, set the trial date for Feb. 3, 2014, but the date could change if the defense finds it is not ready early next year. "I want to be aggressive in moving this case along, and at the same time I want to make sure it's done right," Samour said.

The decision follows several days of wrangling between the defense and prosecution over Holmes' offer to plead guilty in a bid to avoid the death penalty. Despite the announcement, experts predict a long road ahead for Holmes, 25, and the case....

Family members are divided on whether Holmes should get death, according to investigative sources. Some are philosophically opposed to the death penalty, others support it and still another group wants death for Holmes, but they don't want to endure a trial.

Recent and older related posts (with lots of comments):

April 1, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Unanimous SCOTUS summary reversal of Ninth Circuit on right-of-appoint-counsel

A long day of meetings has meant it has taken me nearly all day to note today's notable Sixth Amendment ruling from the Supreme Court in Marshall v. Rodgers, No. 12-382 (S. Ct. Apr. 1, 2013) (available here).  The Rodgers ruling is a unanimous, per curiam summary reversal of the Ninth Circuit, and the start and end of the short SCOTUS opinion highlights its nuances:

Respondent Otis Lee Rodgers, challenging his state conviction, sought a writ of habeas corpus from the United States District Court for the Central District of California. He claimed the state courts violated his Sixth Amendment right to effective assistance of counsel by declining to ap- point an attorney to assist in filing a motion for a new trial notwithstanding his three prior waivers of the right to counseled representation. The District Court denied respondent’s petition, and he appealed to the Court ofAppeals for the Ninth Circuit, which granted habeasrelief.  678 F. 3d 1149, 1163 (2012).  Because the Court of Appeals erred in concluding that respondent’s claim issupported by “clearly established Federal law, as determined by the Supreme Court of the United States,” U. S. C. §2254(d)(1), its judgment must be reversed....

The Court expresses no view on the merits of the underlying Sixth Amendment principle the respondent urges.  And it does not suggest or imply that the underlying issue, if presented on direct review, would be insubstantial.  This opinion is instead confined to the determination that the conclusion of the California courts that there was no Sixth Amendment violation is not contrary to “clearly established Federal law, as determined by the Supreme Court of the United States.” §2254(d)(1).

The petition for a writ of certiorari and respondent’smotion to proceed in forma pauperis are granted.  The judgment of the United States Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

April 1, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack