Monday, January 13, 2014
A few 2014 headlines reflecting the state of, and debates over, the death penalty
I have not done too many death penalty posts lately because the subject (and the usual comments it generates) often gets tiresome for me, and lots and lots of other coverage is always provided by the MSM and new media outlet. But because I will be starting a death penalty until in my Sentencing Law course later this month, I have been reading more carefully my news feed on the topic lately. And here are a few recent reports and commentary pieces that may serve as a bit of a summary of some capital punishment topics making the papers in early 2014:
- Plan to speed Alabama death penalty appeals could mean innocent are executed, defense lawyers say
Does Gov. Christie kerfuffle suggest being a bully is always a big part of a former prosecutor's playbook?
I have been thinking about the question in the title of this post for a few days, and a helpful reader altered me to this post at Above the Law talking through a similar line of thinking. The post by defense attorney Joe Patrice is titled "Governor Chris Christie Did What We All Should Have Expected From An Old Prosecutor," and here are excerpts from a lengthy and amusing screed against Christie and all modern prosecutors:
Unless you’re living under a rock or stuck in traffic on the George Washington Bridge, you know that N.J. Governor Chris Christie spent [Thursday] digging himself out of the Fort Lee traffic scandal in the most Jersey of manner — by placing a proverbial bullet in the back of the neck of one of his most trusted allies Tony Soprano-style. He even invited the media over to the Bada-Bing for a couple of hours after he did it.
Deputy Chief of Staff Bridget Kelly took the rap for closing lanes on the GWB and creating a traffic snarl for Fort Lee residents after a smoking gun email emerged where the staffer seemingly ordered David Wildstein, himself a once highly-paid Christie staffer who resigned last month, to stop up the bridge to make life miserable for Fort Lee. The mayor of the town — a Democrat — had failed to fall in line and endorse the Republican Christie in his re-election campaign, and Kelly’s email outlined the chosen means of retaliation. It seems dumb, but people may have died over this issue.
Liberal columnists are calling Christie basically an overfed Pol Pot and conservatives are comparing this — because they cherish beating their dead one-trick pony — to Benghazi. But whether Christie was directly involved in this scandal or not — and so far the digital paper trail seems to begin with his mild-mannered aide showing uncharacteristic initiative and ends with a high school crony whom Christie put in charge of the bridge — this scandal falls somewhere between unsurprising and utterly inevitable.
Christie is a former prosecutor, serving as a U.S. Attorney from 2002 until 2008. The modern prosecutor is armed with the luxury to exact petty, brutal revenge on any and all who cross him or her, and this is the mentality that Christie brought into the Governor’s Mansion. Indeed, he made this mentality his political calling card.
Oh, and will this matter in 2016? Yes, this will matter in 2016. Sort of. Or sort of not. Look, we’re getting ahead of ourselves....
[The Gov. Christie administration] atmosphere flows directly from the arrogance of a prosecutorial office. Chris Christie frigging loves being a prosecutor. He talks about it all the time. He gets off bullying journalists who ask him simple goddamned questions by pointing out that he’s a prosecutor....
[U]nabashed imperiousness is not just a product of Christie’s thuggery; rather, it flows from the modern prosecutor. More and more, society judges prosecutors by their ability to make public spectacles of securing big prison time for low-hanging fruit — even to the exclusion of taking on the harder cases. Acting as a neutral purveyor of justice has fallen so far to the wayside that defense lawyers are legitimately shocked when prosecutors adhere to their constitutional duties. They are the masters of their own little kingdoms, with nearly limitless power over the fates of all those who brush up against the criminal justice system in their domain. No wonder they get a little drunk with power.
Armed with extensive discretion and so many potential charges to bring, prosecutors can, and do, construct draconian threats by heaping additional and enhanced charges on defendants who refuse to play ball. Plea deals are no longer limited to “going up the chain,” as the masterminds of wrongdoing are now given deals to rat out their underlings for harsher punishment....
Prosecutors are incentivized to use all of their vast power to get more people convicted, and they’re willing to use a bazooka to kill a cockroach if it advances that ball. Listen, I spent a lot of time working with current and former prosecutors. And whether I represented a cooperator working with the government or I was sitting on the same side as a defense lawyer freshly out of the prosecutor’s office, it always disturbed me how quickly they would leap to asking “how do we screw them?” over the most minor of slights.
When this is the model of success that propels you into office, how does one reset? In Christie’s case, he never eschewed this model of leadership. He may well have directly ordered these lane closures, but even if he didn’t, the mentality he has championed in his meteoric rise to prominence invited this sort of behavior. And now we’re supposed to be forgiving when he says his deputy acted alone when plotting to make life hell for someone unwilling to kowtow to the Governor’s overtures?
Friday, January 10, 2014
"A Field Study of the Presumptively Biased: Is There Empirical Support for Excluding Convicted Felons from Jury Service?"
The title of this post is the title of this very interesting new empirical paper by James Michael Binnall now available via SSRN. Here is the abstract:
In the United States, a vast majority of jurisdictions statutorily exclude convicted felons from jury service. Justifying these exclusions, lawmakers and courts often cite the inherent bias rationale, which holds that convicted felons harbor a prodefense/antiprosecution pretrial bias that would jeopardize the impartiality of the jury process. The inherent bias rationale has never been the subject of empirical analysis. Instead, authorities seemingly accept the logic of the rationale unconditionally.
This study (1) explores the prevalence, strength, and direction of convicted felons' pretrial biases; (2) compares the group‐level pretrial biases of convicted felons, nonfelon eligible jurors, and nonfelon law students; and (3) examines if and how a felony conviction shapes pretrial biases. The results of this study indicate that a majority of convicted felons harbor a prodefense/antiprosecution bias and, in this way, differ from eligible jurors generally. Yet, the results of this study also show that many convicted felons are neutral or harbor a proprosecution pretrial bias, and that the strength and direction of convicted felons' group‐level pretrial biases are similar to those of other groups of nonfelon jurors. In sum, this study suggests that while felon jury exclusion does not offend applicable constitutional standards, it is an imprecise and perhaps unnecessary practice that may come at substantial costs.
Thursday, January 09, 2014
US Sentencing Commission suggests lowering drug guideline sentences across the board!
In a vote that may not be historic but is still very important and a sign of the times, the US Sentencing Commission earlier today voted to publish proposed amendments to the federal sentencing guidelines which include an across-the-board reduction in the sentences recommended for all drug offenses. This official press release effecively summarizes and contextualizes this proposed amendments and others that were voted upon today at the USSC's public meeting:
The United States Sentencing Commission voted today to publish proposed guideline amendments, including possible reductions to the sentencing guidelines levels for federal drug trafficking offenses. Another proposed amendment addressed implementation of the Violence Against Women Reauthorization Act of 2013.
The bipartisan Commission voted to seek comment on a proposed amendment to lower by two levels the base offense levels in the Drug Quantity Table across drug types in guideline §2D1.1, which governs drug trafficking cases. Commission analysis indicates that such a change in the guidelines would result in a reduction of approximately 11 months for those drug trafficking offenders who would benefit, resulting in a reduction in the federal prison population of approximately 6,550 inmates by the fifth year after the change.
With this reduction, the sentencing guideline penalties for drug traffickers would remain consistent with pertinent drug trafficking statutes, including existing 5 and 10 year statutory mandatory minimum penalties, by structuring the Drug Quantity Table based on levels 24 and 30 (which correspond to a guideline range of 51 to 63 months and 97 to 121 months, respectively), rather than the existing levels of 26 and 32 (which correspond to 63 to 78 months and 121 to 151 months, respectively).
“The Commission’s proposal reflects its priority of reducing costs of incarceration and overcapacity of prisons, without endangering public safety,” said Judge Patti B. Saris, Chair of the Commission. A Commission study of offenders who received a reduced sentence pursuant to a similar two-level decrease in guideline levels for crack cocaine offenders in 2007 found no difference in recidivism rates for those offenders released early compared to those who served their full sentence.
“Like many in Congress and in the executive and judicial branches, the Commission is concerned about the growing crisis in federal prison populations and budgets, and believes it is appropriate at this time to carefully consider the sentences for drug traffickers, who make up about half of the federal prison population,” Saris said. “Our proposed approach is modest,” Saris said. “The real solution rests with Congress, and we continue to support efforts there to reduce mandatory minimum penalties, consistent with our recent report finding that mandatory minimum penalties are often too severe and sweep too broadly in the drug context, often capturing lower-level players.”...
Consistent with its responsibility to respond to major legislation affecting federal crimes, the Commission voted to publish a proposed amendment responding to the Violence Against Women Reauthorization Act of 2013 (Pub. L. No. 113–4).... The Commission also asked for comment on whether the guidelines adequately address the environmental and other harms of drug production operations, in particular the cultivation of marijuana, and requested comments on issues related to the alien smuggling guideline and on resolving circuit court conflicts regarding the sentencing guidelines, among other matters.
The proposed amendments and issues for comment will be subject to a 60-day public comment period running through mid-March. A public hearing on the proposed amendments will be scheduled in Washington, D.C., on March 13, and a hearing concerning issues related to the reauthorization of the Violence Against Women Act will be held February 13.
For a whole bunch of reasons, this strikes me as HUGE news, and a terrific and fitting application of some of the themes that have been stressed by many members of Congress and by the Attorney General in recent months. Indeed, this action by the USSC, though only now a proposal for comment, strikes me as the most important tangible federal sentencing development since the passage of the Fair Sentencing Act. Let me explain why:
1. This proposed amendment is essentially a statement by the USSC that it believes, in its expert opinion, the current guideline sentences for ALL drug offenses are ALL too harsh. Consequently, even before this amendment becomes official and gets even closer to becoming law, every defendant to be sentenced for ALL drug offenses ought to be arguing for a two-level reduction in the calculated guideline range (and/or a variance from the calculated range) based on the Commission's expert advice and opinion that the current guideline sentences for ALL drug offenses are ALL too harsh.
2. The usual critics of the current drug guidelines as way too harsh are sure to advise the USSC in the days ahead that this proposed amendment is a great idea (and, if they were shrewd, they might push for the amendment reduce sentences even more). Meanwhile, we will get to see if anyone will actively oppose this proposed amendments. In the past, DOJ could often be counted on to oppose any proposed pro-defendant guideline amendment. But these days, in the wake of AG Holder's recent speeches and work, I suspect DOJ will not actively oppose the amendment (and may even support it). If it turn out there is little or no opposition to this amendment, federal judges could and should feel even more confident now and in the near future to lower drug sentences when permitted in the exercise of their post-Booker discretion.
3. If (and when?) this guideline lowering amendment becomes official in November 2014, the US Sentencing Commission will have authority to decide to make it retroactive (as it did with all of recent prior crack amendments). Thus, not only could this amendment start lowering many federal drug sentences now and going foward, there is a chance it could end up lowering many long federal drug sentences already being served.
Perhaps I am at risk of already getting too excited (and counting too many unhatched chickens) concerning this USSC vote. But especially if this vote was unanimous within the Commission, and especially if it has the formal or even tacit approval of the Department of Justice, I do not think I am completely off base when suggesting this is a really big deal.
"Are there no limits on Second Amendment rights?"
The title of this post is the title of this new entry by Lyle Denniston at the "Constitution Daily" blog of the National Constitution Center. After I reprint some excerpts, I will explain why I see more limits on Second Amendment rights than any other right in the Constitution:
In only one place in the Constitution’s Bill of Rights is there a provision that flatly bars the government from regulating one of the protected rights. That is in the First Amendment, declaring that “Congress shall make no law respecting” the rights listed in that Amendment. The “right to keep and bear arms” is not one of those rights; it is contained in the Second Amendment.
The Second Amendment’s text, of course, does say that the right it protects “shall not be infringed.” Is that the same thing as saying that government may pass “no law respecting” gun rights?...
The only place that Americans can look for a binding interpretation of what the Constitution’s words mean – other than to the people acting through the amendment process to make a new constitutional declaration – are the decisions of the U.S. Supreme Court....
Over the time since 1791, when the Bill if Rights was ratified, the Supreme Court has given its blessing to an entire governing edifice that regulates First Amendment rights: the laws of libel and defamation, limits on publishing secret military strategy, regulation of “obscene” and “indecent” expression, and limits on “hate speech.” Famously, the court has said that one has no right to shout “Fire!” in a crowded theater. Even the right to worship freely sometimes is curbed by laws that regulate conduct that has religious meaning.
In contrast to the First Amendment, there is very little constitutional history about the meaning of the Second Amendment. In fact, until just five years ago, the “right to keep and bear arms” was not generally understand as a personal right to have a gun, even for self-defense. It was only in 2008 that the Supreme Court declared that such a personal right does, indeed, exist.
That decision, in the case of District of Columbia v. Heller, is – so far – the most important decision the court has ever issued on the scope of the “right to keep and bear arms.” But in that very ruling, the Court said explicitly: “Like most rights, the right secured by the Second Amendment is not unlimited.” It went on to say just as clearly that it was not barring the government from imposing “reasonable regulation” on that right.
Is a “reasonable regulation” of gun rights, then, an “infringement” on those rights? If the word “infringement” means to encroach on something, as one does when one “trespasses” on someone else’s private property, that does not support the idea that Second Amendment rights are absolutes. Government can “trespass” on private property to put out a fire, for example....
The Supreme Court, of course, could re-enter into that national debate if it felt a need to clarify just what kind of “regulation” of gun rights is allowed without being found to violate the Second Amendment. Up to now, however, the Court does not seem to sense that need. It has issued only one significant gun rights decision since the 2008 ruling, and that 2010 decision in McDonald v. Chicago expanded the personal right to a gun to exist at the state and local level, as well as at the federal level. The court did not go further to explain what it would allow in gun regulation by state and local governments.
It has been asked, every year since then, to take on a variety of new cases, to answer some of the lingering questions: does the personal right to have a gun extend beyond one’s own home, who can be forbidden to have a gun at all, when can a gun be carried in public in a concealed way, what types of guns or ammunition can be regulated or even banned, what places in a community are too sensitive or too prone to violence to allow guns in them, how can the government trace a gun that has been used in a violent incident, how freely should gun shows be allowed to operate?
However, the Court has resisted giving an answer to any follow-up questions. And what that has meant, in the national conversation over gun rights, is that anyone’s argument about the extent of those rights is just as good as anyone else’s, and neither side needs to listen to the arguments that the other side makes.
As regular readers know, I have long highlighted (and lamented) that so far the Second Amendment has been interpreted by lower courts to mean that, if an American ever does one bad thing once (a felony or certain misdemeanors), she can forever be subject to a criminal convction for exercising Second Amendment rights. I know of no other express right set forth in the Bill of Rights that a person forever forfeits based on a single prior bad act. Thus, from my perspective, the Second Amendment is subject to many more rigid limits than any other constitutional right.
Wednesday, January 08, 2014
Seeking input on "must-teach" units as I start a new version of my Sentencing Law course
I am very excited that in a few hours I will begin teaching to a new group of bright Ohio State students my Sentencing Law course. I have taught this three-credit, upper-level course every other year since I started teaching in 1997; since 2003, I have had the added pleasure of teaching from my own co-authored casebook, Sentencing Law and Policy: Cases, Statutes, and Guidelines. Joyfully, the new Third Edition of this casebook was published this past summer, so this semester I will get to experience a new version of the text as I work my way through a new version of the course.
As regular readers can imagine, because sentencing law has changed a lot over the past 15 years, my course coverage has changed a lot over the years. Indeed, I always get a kick out of reviewing my teaching notes from the late 1990s which pressed students, inter alia, to consider why the US still allowed the execution of juvenile and mentally retarded murderers and why federal judges were required to enhance federal guideline sentences based on acquitted conduct.
Of course, many basic theoretical, policy and practical issues concerning why, who and how we sentence in the United States are enduring. But each time I teach this course, in addition to reviewing the basics of capital and federal sentencing doctrines, I often end up focusing a lot of energy on the then-most-pressing topics of current doctrinal debate. The last time I taught this class, for example, in Fall 2011, I spent lots of extra time on the Eighth Amendment's application to prison sentences in the wake of the SCOTUS ruling in Graham and its cert grant in Miller.
Because there are so many sentencing topics, both big and small, that interest me greatly and that I think students should get exposed to, I often struggle to make sure I cover all the "must-teach" sentencing topics each semester. Of course, because there has never been an established "canon" for what must be covered in a sentencing course, students do not know what are all the "must-teach" sentencing topics. But, because there has never been a established "canon" for what must be covered in sentencing course, I likewise have never been sure just what are all the "must-teach" topics for my course.
So, as I start the latest (and I hope greatest) version of my Sentencing Law course, I am eager to hear from readers of all stripes (including lawyers and non-lawyers, professors and students) concerning what they might consider "must-teach" units in a three-credit, upper-level Sentencing Law course. Perhaps stated slightly different, I am eager to hear from everyone and anyone concerning what sentencing topics they assume my students learn about when they hear they have taken a course on Sentencing Law.
Cross-posted at PrawfBlawg
Tuesday, January 07, 2014
Another new legal challenge as Ohio prepares to conduct an execution with another new protocol
As reported in this AP piece, headlined "Attorneys cite 'agony and terror' in untried execution method," Ohio has an execution scheduled for next week that is generate a new round of litigation because of a new execution method. Here are the basics:
Ohio's untried execution method, the first of its kind in the nation, will cause the condemned killer of a pregnant woman "agony and terror" as he struggles to breathe, attorneys trying to stop the execution argued in federal court.
The two-drug combination won't sedate death row inmate Dennis McGuire properly, and he will experience a suffocation-like syndrome known as air hunger, the attorneys said in filings Monday and Tuesday. The drugs were chosen because of a shortage of other lethal injection drugs.
Lawyers had also asked Gov. John Kasich to spare McGuire on the grounds that a jury never got to hear the full details of his chaotic and abusive childhood and abuse. Kasich rejected that request without comment Tuesday. The governor typically does not give a reason when he turns down clemency requests by death row inmates.
McGuire, 53, is scheduled to die Jan. 16 for the 1989 rape and fatal stabbing of Joy Stewart in Preble County in western Ohio. McGuire's lawyers asked federal judge Gregory Frost to delay the execution while they challenge the proposed lethal injection system. "McGuire will experience the agony and terror of air hunger as he struggles to breathe for five minutes after defendants intravenously inject him with the execution drugs," the inmate's attorneys said in a Monday court filing.
They also said McGuire exhibits several symptoms of sleep apnea, which could exacerbate the problem. The dose planned for McGuire isn't enough to properly sedate him, meaning he'll experience "the horrifying sensation" of being unable to breathe, Harvard anesthesiology professor David Waisel said in a Tuesday filing in support of the inmate.
A message was left with the Ohio attorney general's office, which was expected to oppose McGuire's filing. Frost scheduled a Friday hearing. Supplies of Ohio's former execution drug, pentobarbital, dried up as its manufacturer put it off limits for executions. It's a challenge facing other death penalty states as well.
Missouri gave up attempts to use propofol over concerns the move could create a shortage of the popular anesthetic if the European Union, which opposes the death penalty, restricted its export. In Georgia, the state's attempt to use a non-federally regulated dose of pentobarbital is the subject of a lawsuit.
Instead, Ohio's Department of Rehabilitation and Correction plans to use a dose of midazolam, a sedative, combined with hydromorphone, a painkiller, to put McGuire to death.
That combination of drugs has never been used in a U.S. execution. They are included in Kentucky's backup execution method, while Florida uses midazolam as part of its three-drug injection process.
Regular readers know that there is a long history of notable developments in Ohio as a result of federal court litigation over new execution methods. It will be interesting to watch how this round of the litigation plays out.
"Should We Let Prisoners Upgrade Their Prison Cells?"
The title of this post is the headline of this interesting report from the OZY media resource. Here are excerpts:
Would prison be so bad if your cell was spacious and included a private bathroom, kitchen and cable TV? These are the accommodations for some prisoners at San Pedro prison in La Paz, Bolivia. But luxury isn’t free: For about $1,000-1,500, an inmate can purchase a high-class cell for the duration of his or her sentence.
San Pedro is divided into eight sections ranging from shared small cells with risks of stabbings at night to the opulent cells that have access to billiard tables and fresh juice stands. Every person must buy or rent a cell, no matter the quality, and many inmates have jobs as hairdressers, laundry staff, food stall operators or TV repairmen.
Does the idea of paying for better prison accommodations sound ludicrous? Would you bet this could never happen in the U.S.? Think again.
In California there are multiple jails with “pay-to-stay” programs where inmates can pay from $75-155 a day for a private cell in quiet areas away from violent offenders, and they are occasionally allowed to bring in an iPod or computer for entertainment. They must be approved for the program and their crimes are usually minor offenses. The ACLU is not a fan, calling the program a “jail for the rich.”
Supporters of pay-to-stay say they benefit the cities where they are located by providing revenue. For example, if the Fremont jail — which spends $8.35 a day on each inmate — houses 16 inmates for two nights per week a year, the city would net a profit of about $244,000. One immediate question is whether cities should make a profit off of prisoners. Another question has to do with equality.
Two people who commit the same crime but end up in different facilities depending on their ability to pay isn’t exactly equitable, but the American incarceration system doesn’t have the best record when it comes to treating the poor and rich equally....
But what if you weren’t allowed to use Daddy’s dollars to secure better living conditions while serving time for a DUI? What if, instead, you started out the same as every other inmate, regardless of personal wealth or outside resources?
Could a fairer option be that you start your sentence with a financial blank slate, earn money by taking jobs inside the prison or jail and then apply your self-earned dollars to book a nicer and more comfortable living situation? Should prisoners be allowed to pay to upgrade the quality of their cells, or should the nature of their crime be the sole factor in how they live out their prison terms?
January 7, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack
Notable (and amusing?) account of an execution method gone to the dogs
In various settings, some folks are quick to point out that the United States is uniquely punitivie in its use of imprisonment compared to all other nations in the world and also that the United States is one of the few nations in the western world to make continued and somewhat regular use of the death penalty. And advocates for sentencing and corrections reform (myself included) sometimes contend that the US ought to try to learn from the policies and practices of other nations. These realities came to mind when I read this notable recent article sent my way by a helpful reader reporting on a recent high-profile sentencing and punishment in another part of the world:
The execution of Jang Song Thaek, the No. 2 man in North Korea, took Beijing by surprise and will adversely affect bilateral relations. Beijing's displeasure is expressed through the publication of a detailed account of Jang's brutal execution in Wen Wei Po, its official mouthpiece, in Hong Kong, on Dec 12.
According to the report, unlike previous executions of political prisoners which were carried out by firing squads with machine guns, Jang was stripped naked and thrown into a cage, along with his five closest aides. Then 120 hounds, starved for three days, were allowed to prey on them until they were completely eaten up. This is called "quan jue", or execution by dogs.
The report said the entire process lasted for an hour, with Mr Kim Jong Un, the supreme leader in North Korea, supervising it along with 300 senior officials. The horrifying report vividly depicted the brutality of the young North Korean leader. The fact that it appeared in a Beijing-controlled newspaper showed that China no longer cares about its relations with the Kim regime.
Amusingly, as this new Reuters piece reports, it now appears that the "international media frenzy over reports that North Korean leader Kim Jong Un's uncle had been executed by throwing him to a pack of dogs appears to have originated as satire on a Chinese microblogging website." Here is more:
One of the pitfalls of reporting on North Korea is that few independent media have offices there and visiting media are tightly controlled in a country which ranks among the lowest in global surveys of press freedom. Because of the lack of first hand information, many lurid stories about the country gain credence.
Trevor Powell, a Chicago-based software engineer, who first spotted the link to the Weibo post and reported it on his own blog said that analysts and experts were "still all missing the obvious fact that the original source of the Wen Wei Po story was a tweet from a known satirist or someone posing as him/her." Powell blogged about the post here.
Monday, January 06, 2014
Lamenting the "ghosts ... still serving time under [crack] sentences that would not have been imposed under the new law"
Linda Greenhouse has this notable new op-ed in the New York Times headlined "Crack Cocaine Limbo." Here are excerpts:
President Obama earned a rare moment of bipartisan acclaim last month when he commuted the sentences of eight long-serving federal prisoners. Their crack cocaine offenses had resulted in the harsh penalties mandated by a sentencing formula that Congress repudiated when it passed the Fair Sentencing Act of 2010. The old formula, under which possession of a quantity of crack earned the same sentence as possession of 100 times that quantity of powdered cocaine, was “now recognized as unjust,” the president said.
But there were ghosts at last month’s party: thousands of federal inmates still serving time under sentences that would not have been imposed under the new law. Most are black. As is widely recognized, crack has been the cocaine of choice for African-American users and dealers even as white offenders choose powder. The racially disparate impact of the old law, which dates from the crack-cocaine panic of the mid-1980s with its now-discredited theory that crack was many times more dangerous, made reform a civil rights priority.
These prisoners remain in drug-sentencing limbo. When Congress passed the Fair Sentencing Act, which reduced the crack-to-powder sentencing ratio from 1:100 to 1:18, it was silent on retroactivity. The Supreme Court granted limited relief two years ago, ruling that those who committed their crimes before the law took effect in August 2010 but who were not sentenced until later could retroactively get the new law’s benefit....
Senators Richard J. Durbin, Democrat of Illinois, and Mike Lee, Republican of Utah, introduced a bill last summer to authorize judges to grant relief to pre-2010 prisoners on a case-by-case basis. But the Smarter Sentencing Act, as its sponsors call it, has yet to move toward a vote....
Society made a judgment, expressed in a bipartisan political consensus, that disparities of this kind were irrational and racially inequitable. Passage of the Fair Sentencing Act was preceded by years of debate, including pleas by federal judges who hated what the law made them do. Gradually, insight emerged. Keeping a known and finite group of people locked in a system acknowledged to be irrational is irrationality itself.
"Sex offender seeks admission to Kentucky bar"
The title of this post is the headline of this notable new AP article discussing a notable dispute concerning the potential professional collateral consequences of getting convicted of downloading the wrong dirty pictures. Here are the details, followed by a bit of commentary:
Guy Padraic Hamilton-Smith graduated in the top third of his law school class at the University of Kentucky, but the state Supreme Court blocked him from taking the bar exam because he is a registered sex offender. In the first case of its kind in Kentucky, the court rejected Hamilton-Smith’s bid and a move by the state Office of Bar Admissions to create and endorse a blanket rule that would have kept all registered sex offenders from gaining access to the bar.
“Rather, we believe the better course would be to allow any applicant for bar admission who is on the sex offender registry the opportunity to make his or her case on an individualized basis,” Chief Justice John D. Minton wrote in the Dec. 19 opinion on Hamilton-Smith’s case and the proposed rule.
Hamilton-Smith, who was convicted of a charge related to child pornography in 2007, has until Jan. 13 to ask the court to reconsider its decision. In an email, Hamilton-Smith referred Associated Press questions to his attorney, who said the reconsideration request will be filed.
Nationally, cases of felons seeking admission or re-admission to the bar are common. But situations of registered sex offenders attempting to do so appear to be rare. Beyond a recent rejection in Ohio and an ongoing case in Virginia, legal experts and those who work to rehabilitate sex offenders couldn’t recall a similar situation arising in recent years.
But Shelley Stow of Reform Sex Offender Laws — a Massachusetts-based organization that seeks to ease restrictions on offenders and promote rehabilitation — said she wouldn’t be surprised to see more cases out there. “It is so difficult for registrants to even get jobs and support themselves and function day to day, let alone pursue a law career,” she said.
The Kentucky case brings up the question of how to treat someone who has admitted to criminal activity, wants to rehabilitate himself and serve others, but is still monitored by law enforcement, said Hamilton-Smith’s attorney, Scott White, of Lexington. “It’s a highly stigmatized thing,” White said.
Hamilton-Smith pleaded guilty to a charge of possession of matter portraying a sexual performance by a child in March 2007. He received a five-year prison sentence, which was suspended, and was required to register as a sex offender for 20 years — until 2027.
After disclosing the conviction and sex offender status on his applications, Chase Law School at Northern Kentucky University and Brandeis Law School at the University of Louisville both rejected him in 2008. But the University of Kentucky College of Law accepted him in 2008 and he graduated in 2011. Hamilton-Smith later competed on the National Trial Team and National Moot Court Team, and he had a piece published in the Berkeley La Raza Law Journal through the University of California law school.
Since graduating in 2011, Hamilton-Smith has held a non-lawyer position for Baldani, Rowland and Richardson. The Lexington firm has filed letters in support of Hamilton-Smith taking the bar exam, White said. But Hamilton-Smith still has not been cleared by the Kentucky Office of Bar Admissions to take the exam that would allow him to practice law.
White called Hamilton-Smith “a classic sex addict.”
“The classic example is somebody who just downloads buckets of pornography,” White said. “In that download, there just happened to be child pornography.” In this case, Hamilton-Smith has gone through Sex Addicts Anonymous, despite a few admitted relapses with adult, but not child, pornography, White said.
White also said his client used law school as a redemptive and rehabilitative effort while owning up to his criminal conduct. “He just hasn’t let it define him,” White said....
For the justices, the nature of the crime defines someone lacking in the “requisite character and fitness” to be admitted to the bar. “Indeed, our certification could significantly mislead the public into believing that we vouch for (Hamilton-Smith’s) good character,” Minton wrote. “Consequently, a client’s subsequent discovery of the registry listing could then justifiably lead him to question the value of this court’s certification of the good character of those who are permitted to take the bar examination.”
I find this matter interesting for lots of reasons, especially because I suspect that Hamilton-Smith's personal background and recent professional challenges are likely to make him a much better lawyer to serve the (ever-growing) legal needs of the (ever-growing) sex offender population. Indeed, were I running a law firm that often dealt with sex offense cases and offenders, I would be very eager to hire Hamilton-Smith to help me serve this client population whether or not he ever gets admitted to the bar.
That said, it is quite possible (even likely?) that Hamilton-Smith is eager to develop a legal practice that has nothing to do with sex offenders. If that is true, I cannot help but wonder and worry that his status as a registered sex offender may always serve as a problematic disability in the competitive legal marketplace: I fear Hamilton-Smith's adversaries may be inclined (even perhaps eager) to use the modern stigma associated with sex offenders to harmfully impact both Hamilton-Smith and his clients.
More broadly, if the goal of the barring process was only to ensure that only those capable of being a competent lawyer served in this profession, it would be clear that Hamilton-Smith should be allowed to sit for the bar exam. Conversely, if the goal the barring process was only to ensure that nobody with a blemished past could become a lawyer, it would be clear that Hamilton-Smith should not be allowed to sit for the bar exam. But because it seems the goal of the barring process is a little of both, this is an interesting case.
Cross-posted at PrawfsBlawg
Sunday, January 05, 2014
A political and media tipping point?: New York's Gov to reform state's marijuana laws
The title of this post is prompted the fact that today's New York Times has this lengthy lead story on its front page above the fold under the headline "New York State Is Set to Loosen Marijuana Laws." Here are excerpts:
Joining a growing group of states that have loosened restrictions on marijuana, Gov. Andrew M. Cuomo of New York plans this week to announce an executive action that would allow limited use of the drug by those with serious illnesses, state officials say.
The shift by Mr. Cuomo, a Democrat who had long resisted legalizing medical marijuana, comes as other states are taking increasingly liberal positions on it — most notably Colorado, where thousands have flocked to buy the drug for recreational use since it became legal on Jan. 1.
Mr. Cuomo’s plan will be far more restrictive than the laws in Colorado or California, where medical marijuana is available to people with conditions as mild as backaches. It will allow just 20 hospitals across the state to prescribe marijuana to patients with cancer, glaucoma or other diseases that meet standards to be set by the New York State Department of Health.
While Mr. Cuomo’s measure falls well short of full legalization, it nonetheless moves New York, long one of the nation’s most punitive states for those caught using or dealing drugs, a significant step closer to policies being embraced by marijuana advocates and lawmakers elsewhere. New York hopes to have the infrastructure in place this year to begin dispensing medical marijuana, although it is too soon to say when it will actually be available to patients.
Mr. Cuomo’s shift comes at an interesting political juncture. In neighboring New Jersey, led by Gov. Chris Christie, a Republican whose presidential prospects are talked about even more often than Mr. Cuomo’s, medical marijuana was approved by his predecessor, Jon S. Corzine, a Democrat, but was put into effect only after Mr. Christie set rules limiting its strength, banning home delivery, and requiring patients to show they have exhausted conventional treatments. The first of six planned dispensaries has already opened. Meanwhile, New York City’s new mayor, Bill de Blasio, had quickly seemed to overshadow Mr. Cuomo as the state’s leading progressive politician.
For Mr. Cuomo, who has often found common ground with Republicans on fiscal issues, the sudden shift on marijuana — which he is expected to announce on Wednesday in his annual State of the State address — was the latest of several instances in which he has embarked on a major social policy effort sure to bolster his popularity with a large portion of his political base....
The governor’s action also comes as advocates for changing drug laws have stepped up criticism of New York City’s stringent enforcement of marijuana laws, which resulted in nearly 450,000 misdemeanor charges from 2002 to 2012, according to the Drug Policy Alliance, which advocates more liberal drug laws. During that period, medical marijuana became increasingly widespread outside New York, with some 20 states and the District of Columbia now allowing its use....
[Mr. Cuomo's] shift, according to a person briefed on the governor’s views but not authorized to speak on the record, was rooted in his belief that the program he has drawn up can help those in need, while limiting the potential for abuse. Mr. Cuomo is also up for election this year, and polls have shown overwhelming support for medical marijuana in New York: 82 percent of New York voters approved of the idea in a survey by Siena College last May.
Still, Mr. Cuomo’s plan is sure to turn heads in Albany, the state’s capital. Medical marijuana bills have passed the State Assembly four times — most recently in 2013 — only to stall in the Senate, where a group of breakaway Democrats shares leadership with Republicans, who have traditionally been lukewarm on the issue.
Mr. Cuomo has decided to bypass the Legislature altogether. In taking the matter into his own hands, the governor is relying on a provision in the public health law known as the Antonio G. Olivieri Controlled Substance Therapeutic Research Program. It allows for the use of controlled substances for “cancer patients, glaucoma patients, and patients afflicted with other diseases as such diseases are approved by the commissioner.”
Mr. Olivieri was a New York City councilman and state assemblyman who died in 1980 at age 39. Suffering from a brain tumor, he used marijuana to overcome some of the discomfort of chemotherapy, and until his death lobbied for state legislation to legalize its medical use. The provision, while unfamiliar to most people, had been hiding in plain sight since 1980. But with Mr. Cuomo still publicly opposed to medical marijuana, state lawmakers had been pressing ahead with new legislation that would go beyond the Olivieri statute.
Richard N. Gottfried, a Manhattan Democrat who leads the assembly’s health committee, has held two public hearings on medical marijuana in recent weeks, hoping to build support for a bill under which health care professionals licensed to prescribe controlled substances could certify patient need. Mr. Gottfried said the state’s historical recalcitrance on marijuana was surprising. “New York is progressive on a great many issues, but not everything,” he said.
Mr. Gottfried said he wanted a tightly regulated and licensed market, with eligible patients limited to those with “severe, life-threatening or debilitating conditions,” not the broader range of ailments — backaches and anxiety, for instance — that pass muster in places like California, which legalized medical marijuana in 1996. “What we are looking at bears no resemblance to the California system,” Mr. Gottfried said....
Ethan Nadelmann, the executive director of the Drug Policy Alliance, praised Mr. Cuomo’s decision as “a bold and innovative way of breaking the logjam” in Albany, though it may not be the final word on medical marijuana. Mr. Cuomo “remains committed to developing the best medical marijuana law in the country,” Mr. Nadelmann said. “And that’s going to require legislative action.”
For a host of (mostly economic and practical) reasons, legal reforms and policy developments in New York often can and usually will get more than its fair share of national political and media attention from elites up and down the east coast and even around the nation. Indeed, the very fact this story in not due to break "officially" until later this week, but is still now front-page news in the first Sunday New York Times in 2014 shows how some New York stories often are treated like national and nationally-important stories from the get-go.
Especially interesting in this coverage and in the development of this issue in 2014, it seems that Gov. Cuomo has decided he needs to make a (bold?) move toward marijuana reform for political reasons. I am not surprised that recent developments in Colorado and elsewhere may change political calculations by lots of politicians on these matters over time, but I did not expect to see things moving so fast in important places like New York and involving important established state officials with national political aspirations.
Cross-posted at Marijuana Law, Policy & Reform
Saturday, January 04, 2014
Will bipartisan momentum get Congress to enact some real and really consequential sentencing reform?
The question in the title of this post is prompted by this lengthy new AP piece, headlined "Momentum behind sentencing changes grows as supporters in Congress seek changes this year." Here are excerpts:
An unusual alliance of tea party enthusiasts and liberal leaders in Congress is pursuing major changes in the country's mandatory sentencing laws. What's motivating them are growing concerns about both the fairness of the sentences and the expense of running federal prisons.
The congressional push comes as President Barack Obama and his Cabinet draw attention to the issue of mandatory sentences, particularly for nonviolent drug offenders. Supporters say mandatory minimum sentences are outdated, lump all offenders into one category and rob judges of the ability to use their own discretion. They also cite the high costs of the policies. The Justice Department spends some $6.4 billion, about one-quarter of its budget, on prisons each year, and that number is growing steadily....
Tough-on-crime drug policies once united Republicans and Democrats who didn't want to appear weak on crime. Now reversing or revising many of those policies is having the same effect.
The Fair Sentencing Act, passed in 2010, drew bipartisan support for cutting penalties on crack cocaine offenses. The bill reduced a disparity between crack-related sentences and sentences for other drugs, though it only addressed new cases, not old ones. [Senator Dick] Durbin, one of that bill's chief sponsors, has written a much broader bill with [Senator Mike] Lee, called the Smarter Sentencing Act. It would expand a provision that gives judges discretion for a limited number of nonviolent drug offenders. The new law would allow judges the same latitude for a larger group of drug offenders facing mandatory sentences.
It's one of four bills dealing with sentencing that the Senate Judiciary Committee is expected to take up early in the year. The committee chairman, Sen. Patrick Leahy, D-Vt., said he wants one consensus bill to clear the committee.
Leahy is a co-sponsor on the Durbin-Lee bill but has also introduced legislation with Sen. Rand Paul, R-Ky., that would expand the safety valve even more, to all federal cases with mandatory sentences if certain conditions are met.
Sen. John Cornyn, R-Texas, introduced legislation late in December that is based on changes in Texas' state prison system. A separate bill, sponsored by Sen. Sheldon Whitehouse, D-R.I., and Sen. Rob Portman, R-Ohio, allows inmates to earn credit for completing programs designed to reduce recidivism.
Leahy's committee delayed writing a sentencing bill several times in 2013. But supporters noted that the last sentencing legislation took months to negotiate and said that the committee has delayed work until early 2014 in large part because behind-the-scenes talks are proving fruitful. Durbin said he and Lee had been lobbying their fellow committee members — Durbin talking to skeptical Democrats, Lee to Republicans. In the House, Rep. Raul Labrador, R-Idaho, a tea party conservative, and Rep. Bobby Scott, D-Va., are co-sponsors of a companion to Durbin and Lee's bill.
A number of outside groups have expressed support for the Durbin-Lee bill, too, and they run the ideological spectrum, including the conservative Heritage Action, the American Bar Association, the NAACP and the American Civil Liberties Union.
"Juvenile Lifers and Judicial Overreach: A Curmudgeonly Meditation on Miller v. Alabama"
The title of this post is the title of this notable new paper now available on SSRN and authored by Frank O. Bowman III. Here is the abstract:
This Article considers with a skeptical eye the Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), finding unconstitutional under the Eighth Amendment’s Cruel and Unusual Punishments Clause all laws subjecting murderers who killed before their eighteenth birthdays to a sentence of mandatory life without parole (“LWOP”).
Miller and Graham v. Florida, 130 S. Ct. 2011 (2010), in which the Court voided statutes imposing life without parole on juveniles who committed non-homicide crimes, are striking for several reasons. First, they impact juvenile justice because the Court has continued down the path it took in Roper v. Simmons, 543 U.S. 551 (2005), when it ruled the death penalty cruel and unusual for juveniles, regardless of the crimes they committed, and declared categorically that the relative immaturity of juveniles made them less culpable for crime and thus both ineligible for certain very harsh punishments and subject to different procedures than adults for others. Second, the Court’s reasoning in Miller and Graham has potentially far-reaching implications for the sentencing of adults. These opinions extend to non-capital crimes the unique body of Eighth Amendment law the Court had hitherto restricted to death penalty cases. And the language of Justice Elena Kagan’s majority opinion in Miller casts at least some doubt on the power of legislatures to impose any mandatory sentence, whether of death or a term of imprisonment.
This Article contends that, while the results of Miller and Graham are gratifying as sentencing policy, the opinions announcing those results are troubling as a constitutional matter because they are badly theorized and because they are two strands of a web of decisions in which the Court has consistently used doubtful constitutional interpretations to transfer power over criminal justice policy from the legislatures – state and federal – to the courts.
Friday, January 03, 2014
Pennsylvania task force struggling through comprehensive review of state's death penalty
As reported in this local article, headlined "PA Task Force Delays Deadline For Possible Death Penalty Reforms," folks in the Keystone State are struggling through an effort to better understand the state's death penalty. Here are the details:
Thirty-two states, including Pennsylvania, have the death penalty. Since 1976 when the U.S. Supreme Court reinstated capital punishment, Rhode Island (1984), New York (2007), New Jersey (2007), New Mexico (2009) Connecticut (2012), and Maryland (2013) have abolished it. But the repeal in the last three states was not retroactive so they still have prisoners on death row. Massachusetts' death penalty statute was nullified in 1984 by court rulings.
Could Pennsylvania become the next state to abolish capital punishment? The Pennsylvania Task Force and Advisory Committee on Capital Punishment is nearing the end of a two-year comprehensive study of all aspects of the death penalty. “No one has ever done this before in Pennsylvania,” said state Sen. Stewart Greenleaf (R-Montgomery), whose legislation created the commission.
The Penn State Justice Center for Research, the Inter-branch Commission on Gender, Racial and Ethnic Fairness and the Joint State Government Commission are researching all aspects of capital punishment for the task force. They were supposed to report findings and make recommendations this month but have asked for an extension to spring to complete what Greenleaf calls a “very laborious and time-consuming” process, which involves examining death penalty cases in every county of the state.
Three prisoners have been executed in the commonwealth since 1976, two in 1995 and the other in 1999. During that same 37-year period, 1,352 prisoners were put to death in the U.S.
Greenleaf said the researchers are looking at policies, procedures and impact of the death penalty including whether it’s being applied disproportionately based on race. “They’re having primary concerns themselves with statutory aggravators and mitigators; they’re the factors that come into play when a jury decides whether they give the death penalty or not,” Greenleaf said.
Of the 189 inmates on Pennsylvania’s death row, 101 are black — 53 percent. Louisiana has the highest rate of blacks on death row at 70 percent. Nationwide, 41 percent of those awaiting execution are black. The task force is also looking at everything from intellectual disabilities of inmates to the appeals process, from the use of lethal injection to the impact of the process on victims’ families.
Greenleaf, a former prosecutor, said the panel could suggest eliminating the death penalty in Pennsylvania. “We have to look at the report, but, of course, it could result in abolishing it or it could result in some changes or modifications of the process, everything is on the table right now," he said. "We want to see what their recommendations are.”
He added that the commonwealth’s adoption of DNA testing several years ago, which resulted in the exoneration of one death row inmate, is a pivotal factor in the basic question. “Is it more important that we convict every guilty person and execute them or is it more important that we never execute an innocent person?" Greenleaf said. "Our founding fathers said that it’s better to acquit a few guilty people than it is to convict one innocent person.”
Wednesday, January 01, 2014
Holiday references and caseload details in Chief Justice's 2013 year-end report
The headlines generated by the traditional "Year-End Report on the Federal Judiciary" from the Chief Justice of the United States (collected here at How Appealing) are justifiably all about the Chief's extended discussion of budget issues. But this year's report, which can be accessed here, also it includes a couple notable criminal justice caseload statistics as well as introductory paragraphs worthy of a poetic blogger. Here is the how the 15-page report gets started and its criminal caseload details:
The year’s end brings predictable constants, including the revival of favorite phantoms —Scrooge’s ghosts and George Bailey’s guardian angel — who step out from the shadows for their annual appearance and then fade away. Who doesn’t welcome the familiarity of the seasonal cycles, or retelling classic stories that, at their core, contain important truths? There are, however, some cycles from which we would all wish a break. At the top of my list is a year-end report that must once again dwell on the need to provide adequate funding for the Judiciary.
I would like to choose a fresher topic, but duty calls. The budget remains the single most important issue facing the courts. This year, however, let’s take a page from Dickens and Capra. Let’s look at what has made our federal court system work in the past, what we are doing in the present to preserve it in an era of fiscal constraint, and what the future holds if the Judiciary does not receive the funding it needs....
After rising four percent in 2012, filings in the regional courts of appeals dropped two percent to 56,475 in 2013. Appeals involving pro se litigants, which amounted to 51 percent of filings, fell one percent. Criminal appeals decreased 13 percent....
Filings for criminal defendants (including those transferred from other districts) decreased three percent to 91,266. Excluding transfers, fewer defendants were reported for most types of major offenses, including drug crimes. Filings for defendants charged with immigration violations dropped five percent. The southwestern border districts accounted for 75 percent of the nation’s immigration defendant filings. Defendants prosecuted for sex offenses rose 10 percent. There also were increases in defendants charged with violent crimes and regulatory offenses....
The 131,869 persons under post-conviction supervision on September 30, 2013, was less than one percent below the total one year earlier. Persons serving terms of supervised release after leaving correctional institutions increased one percent to 109,379 and constituted 83 percent of all persons under supervision. Cases opened in the pretrial services system in 2013, including pretrial diversion cases, declined six percent to 103,003.
Tuesday, December 31, 2013
"President Obama, the merciless?"
The title of this post is the headline given to this notable new CNN commentary piece authored by P.S. Ruckman Jr., who runs the always great Pardon Power blog. Here are excerpts:
This month, one of the least merciful presidents in the history of the United States granted 13 pardons and eight commutations of sentence. The grants moved President Barack Obama's overall mark past the administrations of John Adams (who served only one term), William H. Harrison (who died of pneumonia after serving only 30 days), James Garfield (who was fatally wounded by an assassin after serving only four months) and George Washington.
The New York Times complained that, when it came to the pardon power, there was just "no excuse" for Obama's "lack of compassion" and encouraged him to "do much more." The American Civil Liberties Union called the pardons "a step" and hoped the President would "continue to exercise his clemency powers." Meanwhile, the Cato Institute, a libertarian think tank, lamented the "drought" of pardons in the Obama administration and called the recent grants "mingy and belated." Conservative columnist Debra Saunders wrote that it was "about time" Obama acted, and even tossed out the possibility/hope that he might "do it again soon."...
No one is clamoring for violent criminals to be yanked out of prisons and tossed into the streets to wreak havoc on society. No one is lusting for the considered judgment of judges and juries to be whimsically overturned by politicians leaving office and, in the process, sidestepping accountability.
But, increasingly, there is recognition that budgets are tight, and prisons are both overcrowded and expensive. The recidivism of those who spend time in prisons and exit without anything like serious rehabilitation is also costly. Congress' recent recognition of the failure (if not outright unjust nature) of sentencing laws appears, to many, as still yet another indicator that there is consensus regarding the status of the so-called war on drugs: It has not worked out very well....
The pardon power will always carry an inherent political "risk," because no one can perfectly predict the future behavior of recipients and everyone's judgment can be second-guessed, if not mischaracterized. Informed persons know Mike Huckabee did not "pardon" Maurice Clemmons and Michael Dukakis did not "pardon" Willie Horton. But, of course, executives cannot always survive political storms with the support and encouragement of informed persons.
Nonetheless, the Founding Fathers considered the pardon power an integral part of our system of separation of powers and checks and balances. Its presence in the Constitution is premised on the notion that Congress and the Courts are not always perfect. Anyone care to disagree? It simply follows that, if the pardon power is being neglected or abused, then government is not doing what it was meant to do.
Alexander Hamilton furthermore noted, in the Federalist Papers, that the criminal codes of nations have an almost natural tendency toward over-severity. For that reason, he argued, there should be easy access to mercy. Yes, you read that right, "easy access," or, in other words, something very different than what is going on in the Obama administration.
The fortunate thing is, presidents and governors can very easily minimize the political "risk" of pardoning by granting pardons regularly, consistently, throughout terms, as opposed to, very questionably, at the "last minute." While Christmas pardons may make some feel warm and fuzzy, they also send a message that is more counterproductive than anything. They seem to say mercy is an afterthought, or worse, a gift, that may or may not be deserved.
The fact of the matter is the majority of individual acts of executive clemency in our lifetime have been pardons, which simply restored the civil rights of the recipients. No one was sprung from jail. Violent criminals were not tossed into the streets. Judges and juries were not overturned. Recipients have typically committed minor offenses, many involving no incarceration whatsoever, and usually, many years if not decades before pardon. FBI background checks documented they had integrated back into society as law-abiding productive members. Their pardons were not "gifts" so much as they were well deserved recognition.
Have these pardons been high-wire maneuvers? Have they required presidents to spend precious political capital? Not at all. Obama has granted 52 pardons to date. There is a much better than average chance that readers cannot name a single recipient. George W. Bush granted almost 200.
So, why can't Obama restore the civil rights of more applicants? Why doesn't he? There is no obvious answer to that question, save lack of care and concern. Where is the President who said his religion teaches him the importance of redemption and second chances? Where is the hope?
Monday, December 30, 2013
NY Times editorial talks of "Slow Demise of Capital Punishment"
The title of this new New York Times editorial, "The Slow Demise of Capital Punishment," is probably better viewed as wishful thinking rather than a sound prediction. Nevertheless, as excerpted below, the New York Times editorial board makes its most potent pitch against the death penalty in this piece:
More states are coming to recognize that the death penalty is arbitrary, racially biased and prone to catastrophic error. Even those that have not abolished capital punishment are no longer carrying it out in practice.
In 2013, Maryland became the sixth state to end capital punishment in the last six years. Eighteen states and the District of Columbia have abolished the penalty, and it is dormant in the federal system and the military. Thirty states have had no executions in the last five years.
As it becomes less frequent, the death penalty also becomes more limited to an extremely small slice of the country, and therefore all the more arbitrary in its application. All 80 death sentences in 2013 came from only about 2 percent of counties in the entire country, and all 39 executions — more than half occurred in Texas and Florida — took place in about 1 percent of all counties, according to a new report by the Death Penalty Information Center. Eighty-five percent of all counties have not had a single execution in more than 45 years.
Public support for the death penalty — an important factor in the Supreme Court’s consideration of its constitutionality — is at its lowest level in four decades, and 40 percent of people surveyed by Gallup say they do not believe it is administered fairly....
Of course none of this matters to, say, Troy Davis or Cameron Todd Willingham, both of whom were executed in recent years despite deep doubts about their guilt. Nor is it of much use to the 3,100 people still sitting on death row around the country.
The argument is not that all of these people are innocent, or that they deserve to be released. Most would be justly imprisoned for most if not all of their life. But the death penalty as applied in America now — so thoroughly dependent on where the defendant lives and how much money he can spend on his defense — violates the constitutional guarantees of due process and equal protection, and no longer can overcome the Eighth Amendment’s ban on cruel and unusual punishments.
The dishonor and shame of capital punishment are further highlighted by the current shortage of lethal-injection drugs, a “crisis” resulting from the refusal of European drug makers to provide them for executions. As a result, states that use lethal injection have turned to unregulated compounding pharmacies, and have even passed laws to hide the identity of those pharmacies and the chemical makeup of the drugs. This only underscores the fact that when it comes to the death penalty, the United States is virtually alone in the Western world.
Actually, all of these developments are in fact of great "use to the 3,100 people still sitting on death row around the country." Given that all these developments help explain why the US now averages less than 50 executions each year (and only a few dozen outside of Texas), the vast majority of murderers serving death sentences now should know that they are far more likely to die of old age in prison rather than in an execution chamber. (And, perhaps better yet for these murderers, their legal appeals are far more likely to get extra attention from lawyers and judges than the tens of thousands of defendants serving life sentences for lesser crimes.)
Sunday, December 29, 2013
Latest USSC quarterly data show (thanks to AG Holder?) record number of judge-initiated below-range sentences
I am intrigued to see that, as reported in Table 4 with the Fourth Quarter FY13 Quarterly Sentencing data report posted here at the US Sentencing Commission's website, there was a notable (though still small) uptick in the number of below guideline sentences imposed by federal district judges during the most recent quarter (from July 2013 to September 2013). Specifically, after a full year in which below-guideline sentence were imposed each quarter in just around 18.5% of all federal cases, in the most recent quarter the rate of judge-initiated below-range sentences jumped to 19.1%. This marks, I believe, the highest percentage of judge-initiated below-range sentences in any quarter on record.
As the title of this post hints, I am inclined to hypothesize that a few more judges were willing to impose below-guideline sentences in a few more federal cases in the wake of Attorney General Eric Holder's big early August speech to the ABA lamenting excessive use of incarceration in the United States. When the US Attorney General says "too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason," I surely hope federal judges are listening and thinking even harder about whether to follow harsh guidelines that tend to recommend pretty long prison sentences in most cases.
That all said, the latest new data continue to show the same basic story lines and relatively stability in the operation and application of the advisory federal guideline sentencing system: these data show, yet again, that somewhat more than 50% of all federal sentences are within the calculated guidelines range, and that below-guideline sentences are a result of a prosecutor's request (which occurs in well over 25% of all cases).
Friday, December 27, 2013
"White man charged with 'knockout game' hate crime. Racial hypocrisy?"
Folks on this blog (myself included) often discuss and debate the impact of racial issues, federalism and prosecutorial discretion on the operation of our nation's criminal justice systems. Consequently, this new Christian Science Monitor article with the same headline of this post just caught my eye as blogworthy. Here is the article's subheading: "The Obama administration's decision to charge a white man with a hate crime for allegedly punching a black man as part of the knockout game has led to criticism that it is applying the law unevenly." And here is more from the piece:
The US Department of Justice on Thursday stepped into the cultural fray about the so-called “knockout game” when it brought federal hate crime charges against a white Texas man for assaulting an unsuspecting black man.
The decision shines a brighter spotlight on the knockout game, in which an assailant tries to knock out a bystander with a single punch. A spate of incidents have gathered national attention in recent months, though it is unclear whether the game has become more popular or whether the Internet has simply allowed for isolated incidents to be broadcast more widely.
The majority of the reported incidents, however, have involved black men targeting white victims – and none triggered federal involvement. The fact that the Justice Department has elected to step in now, when a black man was the victim, has led to criticism among conservative pundits that the Obama administration is applying the hate-crime statute unevenly....
Conrad Barrett was arrested Thursday and charged under federal hate crimes law, which defines a hate crime as “motivated by enmity or animus against a protected class.” (The Federal Bureau of Investigation also lists anti-white crimes as hate crimes.)...
Federal prosecutors say Mr. Barrett planned the Nov. 24 attack, which he filmed with his cellphone. He approached “G.C.”, an elderly black man, and said, “How’s it going, man?” then punched him so hard that G.C.'s jaw was broken in two places and he lost three teeth. Barrett then allegedly cried “knockout!” and ran.
He was caught after he told the tale at a bar, where an off-duty cop was present. Federal prosecutors argue that the attack was motivated by racial animus because police uncovered videos where Barrett allegedly used racial epithets and at one point said that black people “haven’t fully experienced the blessing of evolution.” In another video from the day of the assault, Barrett says, “If I were to hit a black person, would this be nationally televised?”
A single hate crime charge carries a maximum of 10 years in federal prison and a $250,000 fine.
Some conservative bloggers see racial hypocrisy in the charges. “This case shows how warped law enforcement has gotten as a result of hate crime legislation,” writes Rick Moran on the American Thinker blog. “No matter who is in charge, the law will always be selectively enforced. It makes a mockery of the notion of equal justice under the law.”
Concern about the game has percolated within the black community. This fall, several black leaders, including Philadelphia Mayor Michael Nutter, spoke out about the knockout game and warned black parents, in particular, about the consequences for dangerous behavior by their kids.
Hate crime charges have been brought this year against one black suspect accused of playing the knockout game, but they were state charges brought by New York in the case of a knocked-out Jewish man.
For his part, Jack Levin, a criminologist at Northeastern University in Boston, is not convinced that knockout game attacks are growing. He argues in an upcoming journal article that racially fueled knockout attacks are in the news is because they’ve actually become rarer than in the past, so they are more notable. The 1990s, he says, had far more reports of so-called “thrill hate crimes” -- think white teenagers beating up homeless men....
According to FBI hate crime statistics, 22 percent of the 3,297 reported racially motivated hate crimes in 2012 were anti-white, while 66 percent were anti-black. (Others included anti-Pacific Islander and anti-Alaskan native attacks.) The Justice Department insisted Thursday that it does not discriminate in how it makes decisions on hate crime charges. “Suspected crimes of this nature will simply not be tolerated,” said US Attorney Kenneth Magidson of the Southern District of Texas. “Evidence of hate crimes will be vigorously investigated and prosecuted with the assistance of all our partners to the fullest extent of the law.”
Especially in light of the fact that "thrill" beatings are likely always to be localized assaults and that such crimes may actually be declining even as media reports about them increased, I am inclined to criticize the feds for getting involved at all before I will express concerns about racial disparities in how local federal prosecutors decide to bring hate-crime federal charges. More broadly, to the extent that a lot of federal involvement in state matters has often been justified by a concerns that southern courts have in the past been much more concerned about white victim than black ones, the fact that the feds have gotten involved in a case like this in Texas (perhaps after state authorities were slow to respond) involving a younger hoodlum going after elderly man, makes me hesitant to throw around labels like racial hypocrisy until I had more detailed information about why prosecutors moved forward with federal charges in this case but not in others.
That all said, this case and the reaction thereto provides further support for my belief that everyone tends to favor a potent federal criminal justice system and unregulated federal prosecutorial discretion unless and until the feds start using their broad powers in ways that a particular group dislikes.
Thursday, December 26, 2013
Extending Graham and Miller, Massachusetts SJC bars LWOP for all juve offenders
Thanks to this Christmas night post at How Appealing, I just discovered that on Christmas eve the Supreme Judicial Court of Massachusetts issued two big related rulings (available here and here) which not only held that the Supreme Court's Miller ruling is to be applied retroactively but also that "all life-without-parole sentences for juvenile offenders, whether mandatory or discretionary, violate art. 26 of the Massachusetts Declaration of Rights." Because I am on the road today, I will not have the chance to consume this significant rulings fully, but I can here link to and quote from this lengthy report on the rulings from the Boston Globe:
The state’s highest court struck down life sentences without parole for juveniles on Tuesday, saying scientific research shows that lifelong imprisonment for youths is cruel and unusual because their brains are “not fully developed.”
The Massachusetts Supreme Judicial Court decision is retroactive, meaning that, as one example, John Odgren, the suburban special needs student who stabbed 15-year-old James F. Alenson in the bathroom at Lincoln-Sudbury Regional High School on Jan. 19, 2007, and received a mandatory life sentence, now could have a chance of parole one day.
“We are very hopeful that the parole board is going to examine these kids’ lives carefully and will be giving them a real meaningful opportunity for release,” said Patty Garin, Odgren’s attorney. But some district attorneys said they were concerned about the ruling and would argue against parole in some cases.
The decision is a marked reversal for Massachusetts, where juveniles found guilty of murder have faced some of the harshest laws in the nation. The decision also is notable for its reliance on the growing field of research into the juvenile brain.
“Simply put, because the brain of a juvenile is not fully developed, either structurally or functionally, by the age of eighteen, a judge cannot find with confidence that a particular offender, at that point in time, is irretrievably depraved,” the court wrote. “Therefore, it follows that the judge cannot ascertain, with any reasonable degree of certainty, whether imposition of this most severe punishment is warranted.”...
The ruling goes farther than the Supreme Court decision in 2012 that struck down automatic sentences of life without parole for juveniles.... Because the Massachusetts high court’s decision is retroactive, prisoners sentenced as juveniles will “at the appropriate time” be afforded a parole hearing.
Lawyers said such inmates will have to have served at least 15 years before being considered for parole. There are currently 63 inmates in Massachusetts who were sentenced when they were juveniles to life sentences without the possibility of parole for first-degree murder....
The decision drew immediate praise from Governor Deval Patrick, who in September signed legislation that raises the age of juvenile jurisdiction from 17 to 18 and has pushed to reduce the number of teenagers sentenced to life without the possibility of parole. “I applaud today’s Supreme Judicial Court’s ruling,” the governor said in a statement. “Young people, even ones who commit terrible crimes, are developmentally and now constitutionally different from adults. Our SJC has wisely held that, while violent felons will be held accountable, youthful ones deserve every opportunity for rehabilitation.”
Some district attorneys questioned the decision. Essex District Attorney Jonathan W. Blodgett said the ruling will strip away the closure that victims’ families believed they had gained. “I am concerned for families who thought they had finality about their loved ones being murdered,” said Blodgett, who is president of the Massachusetts District Attorneys Association. “Now they have to go through these parole hearings.”
Suffolk District Attorney Daniel F. Conley said in a statement, “We are mindful of the literature on young adults’ brain development, and we already exercise great discretion in charging juveniles with murder. But we’re also keenly aware of the cases at issue here. Some fact patterns demand life imprisonment. Some defendants do not deserve parole. We will argue — as often and as forcefully as necessary — against parole in those cases.”
For years, Massachusetts has had some of the most punitive penalties in the country for juvenile offenders convicted of murder. Two decades ago a series of brutal murders galvanized public demands for harsher penalties. In 1996, legislators responded with a law that mandated that juveniles 14 years and older charged with murder be tried as adults.
Because Massachusetts’ penalties for first-degree murder is mandatory life without parole juveniles found guilty of that crime faced a lifetime of incarceration. As a result, Massachusetts became a leader in the number of youths facing life sentences without parole.
As of last year, the majority of youth with such sentences were concentrated in Massachusetts and four other states: California, Louisiana, Michigan, and Pennsylvania, according to the Campaign for the Fair Sentencing of Youth. “People thought if we have an extreme response, kids would stop doing bad things, and that has not turned out to be true,” said Naoka Carey, executive director of Citizens for Juvenile Justice, a nonprofit based in Massachusetts.
Carey said the SJC ruling brings Massachusetts back to the middle — she noted that other states that have abolished life without parole for juveniles include Wyoming, Colorado, and Texas. “We’re in some conservative company,” she said.
State legislative leaders said they plan to move quickly to overhaul juvenile sentencing laws that might conflict with Tuesday’s ruling. “The legislation currently pending that require the eradication of such sentences will be fast-tracked to ensure constitutional compliance with the ruling of the SJC,” said Representative Eugene L. O’Flaherty, a Chelsea Democrat who is the House chairman of the Judiciary Committee. Carey said there are currently a number of legislative options, but that any law will have to give meaningful opportunity for parole.
The SJC’s ruling came in the case of Gregory Diatchenko, who was 17 in 1981 when he murdered a man in a car in Kenmore Square. He has been in prison for more than three decades. The court ruled that he was eligible to be considered for parole immediately....
“I’m happy that Gregory Diatchenko is going to have a meaningful opportunity for release, which he deserves. He’s a living embodiment of what the [Supreme Court] case was all about. He does not deserve to die in prison. He’s not who he was when he was 17,” said Benjamin Keehn, Diatchenko’s attorney. Keehn was on his way to see his client at MCI Norfolk on Tuesday to relay the news. He said his client is 49 years old, two credits shy of a bachelors degree, and has been a Buddhist for over 10 years.
The court also ruled in the separate case of Marquise Brown, who was convicted of first-degree murder in a 2009 slaying. He has not been sentenced. The court ruled that because Brown was 17 at the time of his crime, he cannot be sentenced to life without parole.
The Diatchenko ruling was unanimous. In a concurring opinion, Justices Ralph Gants, Barbara Lenk, and Fernande R.V. Duffly, emphasized that defendants need to have a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” They urged that decisions on parole be informed by an attention to the “distinctive attributes of youth.
December 26, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack
Wednesday, December 25, 2013
Astute commentary concerning meager crack clemency mercy finally shown by Prez Obama
In part because long-overdue and still meager grants of clemency by President Obama garnered so much MSM attention, I have not blogged much more about the Prez's decision to commute a few crack sentences last week (basics here). But especially on this holy day, I thought it useful to provide links to a few subsequent piece of commentary that effectively highlight why a lot more use of the clemency power is still needed and justified for mercy to even be even a glimmer of hope for the tens of thousands of non-violent offenders still serving the harsh sentences that the federal criminal justice system too regularly hands out:
Senators Paul and Booker celebrate Festivus with sentencing and drug war reform tweeting
As highlighted in this article, "Sen. Rand Paul's (R-Ky.) 'airing of grievances' on Twitter Monday morning actually led to an important side discussion between him and Sen. Cory Booker (D-N.J.) about drug policy — one that could preview a renewed push on reforms next year." Here is more:
It started when Paul, during his homage to "Seinfeld," joked that one of his grievances was with the Twitter-savvy Booker: "One more Festivus grievance about bipartisanship. @CoryBooker doesn't RT me enough."
Booker responded, in kind: "U, me & 'feats of strength:' Senate floor, name the time MT"
Then things got a little more serious: "@CoryBooker how about mandatory minimum sentencing reform instead?"
And then Booker threw in a caveat of his own: "Yes, If u throw in reforming Fed Hemp & Marijuana laws u've got a deal! RT"
Paul reminded him of his stance on reforming marijuana laws: "@CoryBooker I am the Senate author of Hemp bill!"
Booker ended it by declaring an end to the "War on Drugs" in 2014: "I know. U told me last week. Here is to a 2014 where we take on the failed war on drugs RT"
I am pleased that the two Senators who have talked the most about federal sentencing reform have extended the discussion to the Twitterverse. But, as I have said before and will keep saying again, reform talk is cheap and only meaningful if and when advocates can turn this talk into action.
Some recent and older related posts:
- Federal sentencing reform: an unlikely Senatorial love story and a Booker double-dose?
- Is it too early want the new Senator from NJ to get going on sentencing reform?
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- "Conservatives latch onto prison reform"
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Senators Durbin and Lee come together to introduce "Smarter Sentencing Act"
- Does Senator Ted Cruz agree with GOP Senators Mike Lee and Rand Paul about the need for federal sentencing reform?
- Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?
- "The most interesting part of [Rand Paul's] speech was his widely anticipated defense of drug law reform."
- "Prison-Sentence Reform: A bill to give judges flexibility to impose shorter sentences deserves conservatives’ support."
- Another notable GOP member of Congress advocating for federal sentencing reform
Controversial Montana judge adds notable writing requirement to max sentence for assault
As reported in this Los Angeles Times article, headlined "Judge sentences man to write 'boys do not hit girls' 5,000 times," a Montana judge who made headlines for a lenient sentence in a rape case is now making news with a novel sentence in an assault case. Here are the details:
The Montana judge who sparked ire by sentencing a former teacher to 30 days in jail for the rape of a 14-year-old girl has ordered a man convicted of punching his girlfriend to write “Boys do not hit girls,” 5,000 times.
District Judge G. Todd Baugh, whose actions in the rape case sparked a national furor and a petition drive to have state officials take disciplinary action, sentenced Pace Anthony Ferguson on Monday to the writing exercise, in addition to six months in jail, for fracturing the woman’s face in three places during an August 2012 argument. Ferguson, 27, also was ordered to pay $3,800 in medical bills that came as a result of the woman's injuries.
Baugh told Ferguson to number the list, 1 through 5,000, sign it and mail it to him by May 23, according to the Billings Gazette. The six months in county jail is the maximum allowed sentence for the misdemeanor assault.
Ferguson made two appearances in court on Monday. After being sentenced by Baugh, Ferguson appeared before District Judge Gregory R. Todd for a disposition hearing. The judge ruled that Ferguson had violated the terms of his release from prison after a 2003 robbery conviction and ordered the man to spend eight years in state prison.
Monday, December 23, 2013
Reviewing the state of the death penalty in the Buckeye state
One of many reasons I am so very grateful to be able to teach and research sentencing law and policy at The Ohio State University Moritz College of Law is because Ohio is an especially interesting and dynamic state with respect to its application of the death penalty. And this local article, headlined "Ohio executes inmates more than most states: State is 4th among 32 with death penalty, while support, availability of drugs wane," provides an effective review of the state of the death penalty in the state these days. Here are excerpts:
Three ... executions occurred in Ohio [in 2013], which ranked fourth in executions behind Texas, Florida and Oklahoma.... Those executed were Frederick Treesh for the 1984 murder of Henry Dupree in Lake County; Steven T. Smith for the 1998 murder of Autumn Carter in Richland County; and Harry Mitts Jr. for the 1994 murders of John Bryant and Sgt. Dennis Glivar in Cuyahoga County. Billy Slagle was set to be executed this year for the 1988 murder of Mari Anne Pope in Cuyahoga County, but he committed suicide just days before the scheduled date.
Mitts was the last prisoner executed before the state’s supply of pentobarbital expired. Ohio’s new policy would use a never-tested combination of midazolam and hydromorphone if pentobarbital became unavailable.
Convicted murderer Ronald Phillips was scheduled to be the first recipient of the drug combination, but Gov. John Kasich delayed Phillips’ execution until July to see whether the inmate could donate his organs to ailing relatives.
Now, Dennis McGuire, who raped and fatally stabbed a pregnant woman, is set to be the first executed with the new combination. He is seeking a reprieve of his execution, which is scheduled for Jan. 16....
The number of inmates on Ohio’s death row, currently 140, has declined every year since 2003, according to December population counts from the state prison system.
A task force assembled by the Ohio Supreme Court and Ohio State Bar Association in 2011 to review Ohio’s use of the death penalty has made several suggestions for changes to state law. Those include eliminating the death penalty for inmates with serious mental illness during the time of the offense and standardizing pay for attorneys defending capital cases....
Several bills introduced this year address the death penalty, yet none has received a committee vote. One introduced by House Democrats would abolish the death penalty, whereas another backed by Senate Democrats would spare anyone sentenced to death because of race. A Cincinnati Republican wants to expand the death penalty to repeat sex offenders....
Ohio has executed 52 inmates since 1999 — all were men and nearly two-thirds were white. The highest number of executions in a year since Ohio reinstated the death penalty in 1981 was eight in 2010, according to the Ohio Department of Rehabilitation and Correction. Ohio has set six executions for 2014, six for 2015 and one for 2016.
Eleven prisoners have been executed during Kasich’s tenure compared with nine in the first three years of predecessor Gov. Ted Strickland, a Democrat, and two in the first three years of Republican Bob Taft’s tenure. Kasich has commuted four death row inmates’ sentences to life in prison without parole; Strickland commuted five death sentences over four years.
None of the states that surround Ohio executed a prisoner in 2013. Michigan and West Virginia are among the 18 states that do not have a death penalty.
Isn't it crazy (and one reason for much dysfunction) that California does not have some kind of sentencing commission?
I have written a law review article emphasizing that the mere existence of a sentencing commission within a jurisdiction does not magically solve or even necessarily improve the development of sentencing and corrections laws and policies in that jurisdiction. Indeed, some might reasonably claim that in jurisdictions that have other agencies collecting system-wide data, a sentencing commission can become a costly luxury that may at times do more harm than good.
That all said, and as the question in the title of this post highlights, it strikes me as truly nuts that California has never created some kind of sentencing commission to assemble at least basic state-wide sentencing information. Indeed, given the huge mess that has long been California's massive sentencing and corrections system, and given the crisis-mode reforms and regulations imposed by judges and governors for decades now, I have to think any kind of sentencing commission in California would be able to improve matters in some way at least by being the go-to location for information about what the heck is even going on in the state on a range of sentencing and corrections issues.
These matters come to mind in reaction to this notable new article in the Sacramento Bee headlined "Sentencing commission, suggested in Sacramento, faces long odds." Here are excerpts:
Key California lawmakers this summer suggested that a commission to review and overhaul criminal sentences not only could bring coherence to a disjointed system but also perhaps ease chronic prison overcrowding in the long term. But the idea now appears stalled, despite the incentive of federal litigation that could force Gov. Jerry Brown to release as many as 10,000 inmates next spring.
Lawmakers chastened by a history of unsuccessful sentencing commission bills hold out little hope that this time could be different. “These issues are hard,” Sen. President Pro Tem Darrell Steinberg, D-Sacramento, said in an interview last week. “They’re hard to bite off politically.”
The notion of a panel to overhaul California’s penal code has percolated for decades but eluded proponents time and again. Supporters argue that a steady accumulation of different regulations, layered on top of one another over time, has led to a labyrinth of sentencing guidelines. “There is a lot of disproportionate punishment in our penal code, and that’s because not uncommonly a horrible crime may be committed in someone’s district and so the response is legislatively to get tougher,” said Sen. Mark Leno, D-San Francisco. “These are emotional issues,” he added, “and to have politics infused in all of our decision-making does not create the most sound public policy.”
State sentencing commissions are typically independent bodies, appointed by officials, that study a state’s galaxy of sentencing laws and condense them into a comprehensive framework. They issue guidelines that would increase or decrease sentences for various categories of crimes. That troubles some law enforcement leaders who see the potential for weakened sentences. And it rattles lawmakers wary about constituents – or future electoral opponents – who could hold them responsible for changes that emanated from an unelected body.
“No legislative body wants to give up power,” said Rep. Karen Bass, D-Los Angeles, a former Assembly speaker who pursued a sentencing commission during her time in the Legislature.
Historically, the state’s law enforcement community has been hostile to allowing appointed entities to dictate consequences for crimes. District attorneys, sheriffs and police chiefs have opposed past efforts, raising concerns about who would sit on panels with expansive authority to reshape criminal justice. “In California, the only times sentencing commissions come up, it has been code for sentence reductions,” said Sacramento County District Attorney Jan Scully.
But the idea resurfaced this summer when Gov. Jerry Brown, seeking to satisfy a federal order to reduce California’s prison population without resorting to more early releases, proposed spending an additional $315 million to provide more cells. Steinberg broke with the governor, rallying Senate Democrats behind an alternate plan that questioned expanded capacity.
Among other provisions, Steinberg’s blueprint included a detailed plan for immediately creating an 18-member sentencing commission that could provide recommendations by the end of 2014. A letter to Brown argued that “short-term fixes provide no sustainable remedy.” Steinberg’s letter said the panel would make recommendations aimed at “long-term prison capacity, staying within the (prison capacity) cap, including changes in criminal sentencing and evidence-based programming for criminal offenders.” He included private poll results that showed nearly three-fourths of Californians supported a panel “to streamline California’s criminal statutes with the goal of safely reducing prison costs and maximizing public safety.”
But by summer’s end, the governor got his cash infusion. The final bill also created a special corrections policy committee tasked with broadly examining criminal justice in California. Last week, Steinberg called sentencing reform “a key piece” of rethinking the state’s criminal justice system. But he expressed doubt that substantial changes would materialize in the coming legislative session....
This session, Leno carried his second consecutive bill easing penalties for simple drug possession. Brown vetoed it. Part of Leno’s argument emphasized the state’s uneven sentencing statutes, which make possession of cocaine a felony but allow possession of Ecstasy or methamphetamine to be charged as misdemeanors. Leno cited such inconsistencies in arguing that the sentencing commission is “an idea whose time has come,” adding that the state’s struggles to reduce its prison population “only underscores the need for it.”...
Past sentencing commission efforts have self-destructed because the panel’s recommendations, though subject to legislative approval, would have carried the force of law, argued Sen. Loni Hancock, D-Berkeley. By contrast, Steinberg proposed a purely advisory body.
After seeing previous resentencing campaigns stymied, Hancock said an advisory commission may be the only tenable approach. Even if a commission’s recommendations remain just that, Hancock said she would push to see them implemented. “It’s just so important to cast some rational light on what goes on with our sentencing that I would be happy to see one that makes discretionary recommendations,” Hancock said.
I am pleased to hear there is talk of making a sentencing commission advisory in California because that should be one key to making such an entity a viable reality. But, were I a lawmaker in California, my proposal for a CA sentencing commission would be for the entire voting body of any such commission to be staffed only with district attorneys, sheriffs and police chiefs and for these folks on the CA commission to always have a majority of voting members. In that way, it should and could be clear that having a CA sentencing commission would not be code for sentence reductions but rather just a means for seeking greater sentencing rationality and information as defined by those very state actors elected and most responsible to the voters for seeking to ensure public safety and sensible use of tax resources to that end.
Thursday, December 19, 2013
Clemency christmas miracle?: Prez Obama communiting 8 pre-FSA crack sentences and granting 13 pardons
As reported in this new article from the New York Times, "President Obama, expanding his push to curtail severe penalties for drug offenses, is expected on Thursday to commute the sentences of eight federal inmates who were convicted of crack cocaine offenses. Each inmate has been imprisoned for at least 15 years, and six were sentenced to life in prison." Here is more about this interesting and exciting news:
It would be the first time retroactive relief was provided to a group of inmates who most likely would have received significantly shorter terms if they had been sentenced under current drug laws, sentencing rules and charging policies. Most of the eight would be released in 120 days.
In a statement prepared for release when the commutations are announced, Mr. Obama said that each of the eight men and women had been sentenced under what is now recognized as an “unfair system,” including under a 100-to-1 sentencing disparity between crack and powder cocaine offenses that was significantly reduced by the Fair Sentencing Act of 2011.
“If they had been sentenced under the current law, many of them would have already served their time and paid their debt to society,” Mr. Obama said. “Instead, because of a disparity in the law that is now recognized as unjust, they remain in prison, separated from their families and their communities, at a cost of millions of taxpayer dollars each year.”
The recipients include several high-profile inmates who have received news media attention as examples of the effects of earlier tough-on-crime drug sentencing policies, in which the quantities of crack involved sometimes resulted in severe punishments. Many of them were young at the time of their offense and were not accused of violence.
Clarence Aaron of Mobile, Ala., for example, was sentenced to three life terms in prison for his role in a 1993 drug deal, when he was 22. Mr. Aaron’s case has been taken up by congressional critics of draconian sentencing and by civil rights groups, and has received significant media attention. Last year, the Justice Department’s inspector general issued a report criticizing the department’s pardon office for mishandling his clemency petition.
Margaret Love, a former Justice Department pardon lawyer who represents Mr. Aaron, said she received a call informing her of the decision on Thursday morning and called her client, who along with his family was “very grateful.”
“He was absolutely overcome,” she said. “Actually, I was, too. He was in tears. This has been a long haul for him, 20 years. He just was speechless, and it’s very exciting.”
Mr. Obama, who has made relatively little use of his constitutional clemency powers to forgive offenses or reduce sentences, is also expected to pardon 13 people who completed their sentences long ago. Those cases involved mostly minor offenses that resulted in little or no prison time, in line with previous pardons he has issued.
But the eight commutations opened a major new front in the administration’s criminal justice policy intended to curb soaring taxpayer spending on prisons and to help correct what the administration has portrayed as unfairness in the justice system. Recipients also include Reynolds Wintersmith, of Rockford, Ill., who was sentenced in 1994 to life in prison for dealing crack when he was 17, and Stephanie George of Pensacola, Fla., who received a life sentence in 1997, when she was 27, for hiding a boyfriend’s stash of crack in a box in her house. In both cases, the sentencing judges criticized the mandatory sentences they were required to impose by federal law at the time, calling them unjust.
In December 2012, The New York Times published an article about Ms. George’s case and the larger rethinking of the social and economic costs of long prison terms for nonviolent offenders. Mr. Obama mentioned the article in an interview with Time magazine later that day and said he was considering asking officials about ways to do things “smarter.”
Around that time, a senior White House official said, Mr. Obama directed Kathryn Ruemmler, his White House counsel, to ask the Justice Department to examine pending clemency petitions to assess whether there were any in which current inmates serving long sentences would have benefited from subsequent changes to sentencing laws and policy. The deputy attorney general, James M. Cole, returned the eight cases with positive recommendations from the department about six weeks ago, the official said....
Legislation pending in Congress, including a bill co-sponsored by Senators Richard J. Durbin, Democrat of Illinois, and Mike Lee, Republican of Utah, would make the Fair Sentencing Act retroactive for some offenders, and it would build into the system a process for inmates to apply to a judge for case-by-case review of whether a reduced sentence would be appropriate. The Obama administration supports that bill, the White House said, as a more orderly and regular way to ensure individualized analysis in addressing the broader inmate population.
According to the group Families Against Mandatory Minimums, about 8,800 federal inmates sentenced for crack offenses before the Fair Sentencing Act would be eligible to apply for a reduced sentence were the bill to become law. “Commuting the sentences of these eight Americans is an important step toward restoring fundamental ideals of justice and fairness,” Mr. Obama said. “But it must not be the last. In the new year, lawmakers should act on the kinds of bipartisan sentencing reform measures already working their way through Congress. Together, we must ensure that our taxpayer dollars are spent wisely, and that our justice system keeps its basic promise of equal treatment for all.”
I am quite pleased Prez Obama is finally, finally, finally using his constitutional clemency powers in a truly consequential and meaningful way, and I am especially pleased that there are now eight more defendants (and families) who get some relief from the unfair 100-1 pre-FSA crack sentences that nobody ever seeks to defend substantively. However, the numbers reported above highlight that for every new bit of post-FSA fairness achieved by these commutations, a thousand other defendants (and families) must continue to live with the consequences of a reform that has been interpreted only to prevent future injustices and not fix past ones.
More broadly, though I do not want to turn a praiseworthy act by Prez Obama into an excuse for more criticism, there is a cynical voice in my head that is not only eager to fault the limited reach of this new round of clemency, but also its timing. Perhaps intentionally, these grants could (and perhaps should) be marginalized as just a holiday tradition, not as a bold statement of executive priorities. Even more worrisomely, as there is on-going talk of statutory sentencing reforms in Congress, these grants might provide some basis for opponents of broader reforms to contend that truly troublesome cases can and should be just handled and remedied by the executive branch.
Better summing up my cynicism is a response to this news from Professor Mark Osler: "Good news... But just one lifeboat off the titanic. With no structural change, the ship is still sinking."
December 19, 2013 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (13) | TrackBack
Death Penalty Information Center releases annual report on capital punishment developments in 2013
This morning, the Death Penalty Information Center released its annual report on death penalty developments under the sparkling title, "The Death Penalty in 2013: Year End Report." The eight-page report is available at this link, and here are its list of "key findings" followed by the first part of the report's conclusion:
There were 39 executions in 9 states: only the second time in 19 years there were fewer than 40 executions.
There were 80 death sentences in 2013, a slight increase from 2012, but near the lowest number since 1973.
Maryland abolished the death penalty in 2013, the 6th state in six years to do so.
Public support for the death penalty reached its lowest level in 40 years.....
The number of executions, the size of death row, and the number of death penalty states all declined in 2013. Death sentences were near their lowest level since the reinstatement of the death penalty in 1976. Even many southern states, including South Carolina, Virginia, Tennessee, and Louisiana, had no death sentences in 2013. With Maryland’s repeal of capital punishment, the number of states without the death penalty grew to 18. Public support for the death penalty is at a 40-year low.
It is likely these trends will continue as more state legislatures consider repealing what has become a very expensive and unpredictable punishment. Nevertheless, over 3,000 people remain on death row, and some states like Florida and North Carolina have taken measures to expand the use of the death penalty.
The problems of mistakes, unfairness, and even the method of execution have exasperated many supporters of the death penalty, contributing to less reliance on capital punishment. Death sentences in Texas have declined by almost 80% since 1999. When examined on a county basis, only 2% of U.S. counties are responsible for the majority of executions and prisoners on death row. Because of restrictions by drug manufacturers, states have been forced to try new combinations of lethal drugs, some obtained from questionable sources, to carry out executions.
Though the DPIC's work is always impacted by its anti-death-penalty perspectives, I am always impressed by and grateful for the various ways the group collected and disseminates important information about the application of the death penalty throughout the United States.
Wednesday, December 18, 2013
Task force recommends broad changes to sentencing and corrections in Mississippi
As reported in this local article, headlined "Sweeping prison reforms suggested in Mississippi: More judicial discretion among proposals," there is now big talk about big reforms in The Magnolia State. Here are the details:
A criminal justice task force on Tuesday recommended sweeping reforms to reduce Mississippi’s soaring prison population and costs, standardize sentences and reduce recidivism. “This is the first time in my career — 32 years — that we have taken a comprehensive look at corrections in this state,” said Mississippi Department of Corrections Commissioner Chris Epps. “… We all know the cost of doing nothing.”
The recommendations include providing more discretion for judges to impose alternatives to prison and creating “true minimums” on when violent and nonviolent offenders are eligible for release. They also call for defining what constitutes violent crime — something officials said isn’t clear in state law. Proposals also include increasing the threshold from $500 to $1,000 for felony theft and lowering drug sentences for possession of small amounts while cracking down on large drug dealers.
Epps headed the bipartisan, 21-member task force of lawmakers, judges, prosecutors, law enforcement and defense attorneys. The group, after working for seven months with assistance from the Pew Charitable Trust’s Public Safety Performance Project, developed recommendations for the 2014 Legislature.
Gov. Phil Bryant, Lt. Gov. Tate Reeves, House Speaker pro tem Greg Snowden and others voiced their support for the proposal after the task force adopted it. The task force was created by a bill Snowden authored this year. Bryant said the reforms “put victims first,” protect public safety and provide “clarity of sentencing.” Reeves praised the recommendations as “evidence-based, data-driven, fiscally sound criminal justice reforms.”
While the nationwide trend has been lower prison population, Mississippi’s has skyrocketed since it passed some of the toughest “truth in sentencing” laws in the 1990s. The state now has more than 22,600 prisoners and the second-highest incarceration rate in the nation. Prison costs have risen from $276 million in 2003 to $361 million, with unchecked growth expected to result in 2,000 more inmates and cost taxpayers another $266 million over the next 10 years.
The state has attempted unsuccessfully to reduce prison costs with a patchwork of release policies that created confusion in sentencing and a disconnect between the judges/prosecutors and corrections. Uncertainty about how long convicts would serve helped push sentence lengths by 28 percent the last decade....
State Sen. Willie Simmons, D-Cleveland, said the proposed reforms are “historical,” and “create a better system as opposed to a build it (prisons) and they will come approach.”
Is there a real problem with animal cruelty federal sentences being way too short?
The question in the title of this post was my reaction to seeing this essay, titled "Vulnerable Victims: Increasing Animal Cruelty Sentences to Reflect Society's Understanding of the Value of Animal Lives," recently posted on SSRN. Authored by Adam Lamparello and Megan Boyd, here is the abstract for this essay:
More should be done to deter animal cruelty. Crush videos, which depict horrific acts of animal cruelty, should be banned. The advisory Guidelines range — as well as the five-year statutory maximum sentence for animal cruelty cases — should be substantially increased. Additionally, courts should continue to impose severe sentences upon those who subject animals to senseless and deadly violence. In so doing, the law will recognize the intrinsic value of animals as conscious, living creatures worthy of legal and constitutional protection.
Candidly, I am not sure I fully understand or approve why many or even any animal cruelty should be prosecuted in federal courts. Though I can imagine settings in which dog-fighting, cock-fighting and other inter-state economic activities based on animal abuse implicate important federal interests, the underlying animal cruelty strikes me as typically a distinctly local activity that ought generally (if not always) be prosecuted in local courts to better reflect local needs and interests. My sense is that there are lots of local variations on what is regarded as criminal treatment of animals (e.g., hunting pigeons in a New York City park likely will be viewed by the local community as much different than hunting pheasants in a South Dakota park). For such behavior, I always think local juries and local judges ought always be the primary, and perhaps the exclusive, assessors of criminality and what constitutes fair and effective punishment.
Tuesday, December 17, 2013
"Mom's Photos of Kids Rules 'Obsessive' but Not Pornography"
The title of this post is the headline of this interesting report from the New York Law Journal about an interesting state ruling concerning the definition of child pornography. Here are the details:
Brooklyn Family Court Judge Steven Mostofsky suggested in a recent decision that he knows what's not pornography when he sees it, and the images a camera-ready Brooklyn mother took of her kids are neither lewd nor obscene. Rather, Mostofsky said, they are the product of a mom who is perhaps a little too eager to capture the family's Kodak moments.
"Any parent knows that you cannot raise a child without making a mistake in judgment from time to time," Mostofsky wrote in Matter of CW, NN-02628-6/13. "And unless that mistake endangers your child or you violate a statute you have the right to correct your mistake without government interference in your family life."
The case began when a man lost his BlackBerry last April. The person who found it noticed that there were numerous photographs of naked children and turned it into police. That resulted in a bench warrant, an investigation by the Brooklyn district attorney and the removal of four children, ranging in age from 7 to 1 based on allegations that the parents had promoted a sexual performance by a child and possessed obscene images.
In one of the photographs, a 4-year-old girl is sleeping, with her legs splayed and her private parts visible. In another, a child is wearing nothing but boots that are far too big. And in another, a child apparently undergoing potty training is depicted in the bathroom with her pants down. Others show the children playing in the bathtub.
The Brooklyn District Attorney's Office executed a warrant and seized various electronic equipment from the parents' home, but did not charge the parents with a crime. Rather, several months later, the district attorney aided the Administration of Children's Services in filing a child abuse case against the parents based on the same photographs, according to court records. ACS alleged that the parents had sexually explicit photographs of their children and failed to cooperate with the agency in its investigation.
But at a hearing, there was no indication the children were in any jeopardy, Mostofsky said. The children's pediatrician, who had cared for the children since birth, said the family was "one of the most normal high functioning families" in his practice and he never saw any signs of abuse. Even the ACS caseworker testified that the children were not in an imminent danger....
The court dismissed the petition, finding no evidence that the parents violated any laws. Mostofsky said the photographs in question do not meet the definition of lewd and the parents did not promote obscene sexual performances.
"We wish you 70 years in prison, we wish you 70 years in prison, and an unhappy new life"
The title of this post is inspired by this local sentencing story and the song I could imagine in some Texas jurors' heads as they decided to "celebrate" the holiday season by sentencing a woman with a notably long and ugly criminal record to a notably long and harsh prison term. The story is headlined "Parker County 'Grinch' Sentenced to 70 Years in Prison," and here are the details:
A woman known as the Christmas “Grinch” for stealing Christmas lights from a Parker County family’s home was sentenced to 70 years in prison on Friday after she was convicted of a separate burglary.
Dana Brock, 44, of Hurst, shook her head when the judge read the jury’s sentence. Prosecutors pushed for a long sentence because of her lengthy criminal record.
Brock gained notoriety in December 2012 when she was caught on surveillance video stealing Christmas lights from outside a family’s Aledo home while they were inside sleeping. She was arrested again in May after she stole a weed wacker and a power washer from another homeowner’s garage. She also was caught on video in that case.
"One of our deputies who responded out to this case and looked at the surveillance video at the homeowner's house saw her on the video and said, 'Hey, that's the Grinch,’” said assistant Parker County district attorney Jeff Swain. “He knew right away who it was." A jury deliberated just five minutes before convicting her on Thursday.
In the sentencing phase of her trial, prosecutors pointed to her long criminal history. Brock’s record dates to when she was a 17-year-old and was convicted in Arizona of solicitation to commit murder. Over the years she also was convicted of credit card abuse, injury to a child, theft, assault, and drug possession. Instead of two to 20 years in prison for burglary of a habitation, she faced 25 years to life under the "three strikes and you're out" law.
She shook her head as the judge read her 70-year sentence. "A 70-year sentence will knock the air out of your stomach,” said her attorney Raul Navarez. “She kept asking me, '70 years? Are you serious? 70 years?' Because 70 years is a pretty harsh sentence for this kind of a deal. And quite frankly, that's what I argued to the jury. But the jury decided and we have to respect that."
Navarez and prosecutors agree it didn't help her case when jurors saw the video of her stealing Christmas lights. "When you're known as the Christmas Grinch, people do remember you,” Swain said.
I am unsure whether Texas law ensures that this version of the grinch will have to serve most or nearly all of these 70 years in prison, though this defendant's lengthy record of not-so-petty crimes leads me to be less than too-sympathetic concerning her fate. That said, if she is really as smart as the "real" Grinch, she probably will be able to figure out some way to catch "affluenza" while serving her time in Texas prisons and thereafter convincingly claims at a parole hearing that her heart and her conscience managed to grow three sizes one day while she was incarcerated.
National Coalition to Abolish the Death Penalty lists top capital stories from 2013
Regular reasons may recall that I am a sucker for end-of-year lists and reports, and thus I was excited to see that the National Coalition to Abolish the Death Penalty has this extended blog post setting out a view of "important stories from 2013" concerning capital punishment in the United States. Here are the items on the list, and folks should click through to see the explanations provided by NCADP:
Maryland Repeals Death Penalty....
Death Penalty Support Drops....
New Report: 2% of Counties Responsible for Most Executions....
Reginald Griffin Exonerated....
Lethal Injection Drug Shortages Confound States....
Timely Justice Act Passes in Florida....
Texas Executes 500th Person....
Virginia Electrocutes Robert Gleason....
Delaware Senate Passes Repeal Bill....
U.N. Human Rights Council Passes Resolution on Behalf of Children of Death Row Prisoners....
I would add to this list the decision of the Supreme Court to finally take up the issue of permissible state procedures for implementing its Atkins Eighth Amendment ruling. But, since we will not get oral argument or a decision in this SCOTUS case until next year, I suppose this is more properly considered a 2014 story.
Monday, December 16, 2013
"Vermont's Chief Justice Is Speaking Out Against the Drug War: Is Anyone Listening?"
The title of this post is the headline of this lengthy and notable article I just came across from a Vermont independent paper, Seven Days. Here are excerpts:
In recent weeks, Vermont Chief Justice Paul Reiber has gone public with an unusually assertive critique of the war on drugs and the “tough on crime” approach that has defined criminal justice for decades.
Reiber, who holds an office in which occupants usually avoid saying anything remotely controversial, has stopped short of recommending policy or criticizing any individuals or government bodies. But in a pair of speeches and a brief interview with Seven Days, he has declared ineffective the current reliance on police and punishment, and touted the merits of treatment-based models for dealing with crime rooted in substance abuse.
“Even with our best efforts, we are losing ground,” Reiber told a crowd at Vermont Law School last month. “The classic approach of ‘tough on crime’ is not working in this area of drug policy. The public responds very well to this ‘tough on crime’ message, but that does not mean it’s effective in changing individual behavior. If the idea is law enforcement alone will slow and eventually eliminate drug use altogether, that isn’t going to happen … The criminal justice system can’t solve the drug problem.”
Experts note that Reiber’s stance isn’t exactly revolutionary, as judges across the country have become more comfortable in recent years speaking publicly about issues affecting the court system. But, backers say, his entrance into the politically fraught debate about drug policy lends a powerful voice to their cause....
Statistics from the Vermont judiciary show the root of Reiber’s concern. Felony filings have jumped nine percent in the past four years, and more than half of that spike came in the form of drug cases. Abuse and neglect cases, meanwhile, are up 33 percent in the same time frame. While difficult to pinpoint, experts say many of those cases are children suffering at the hands of drug-addicted parents. (Reiber said he recently observed a day in Addison County juvenile court, where the docket has grown in recent years, and watched parents who are about to be incarcerated give up their parental rights.)
But Reiber’s two speeches covered more than just Vermont’s swollen court docket. In his Boston speech, Reiber highlighted reforms in Portugal, which in 2001 abolished criminal penalties for possession of all drugs, and replaced incarceration with drug treatment. Vermont’s chief justice called the results of that experiment “astonishing,” citing a study from the libertarian Cato Institute showing that Portugal experienced a large drop in drug use and a spike in the number of people seeking treatment.
During that speech, Reiber even said that American drug courts — in which nonviolent defendants charged with drug possession are diverted out of the court system and given a chance to turn their lives around — don’t go far enough. Only broader changes, he said, will have an impact....
When asked if he supported a Portugal-style drug legalization in Vermont, Reiber demurred. “That’s not my job. That’s for somebody else to decide,” he said. But, as he is doubtless aware, Reiber’s job title assures his comments are assigned more importance by both insiders and the public.
You be the disparity judge: very different prison sentences for (similar?) fruadsters in different courts
One reason I never fully understand nor fully appreciate very aggressive efforts to try reduce sentencing disparities is because I never fully understand nor fully appreciate whether and when very different sentences for somewhat similar crimes represents warranted or unwarranted disparities. And these two notable headlines reporting on two notable white-collar sentences imposed today in two different courtrooms have me thinking about these matters yet again:
Here, respectively, are the basics of the crimes and punishments in these two cases taken from the above-link press accounts, the first of which is a report from a state court in Ohio:
Bobby Thompson, convicted mastermind of a national veterans charity scam that bilked donors out of an estimated $100 million, was sentenced to 28 years in prison this morning by Cuyahoga County Common Pleas Judge Steven Gall. Thompson is a stolen identity used by John Donald Cody, 67, to set up the U.S. Navy Veterans Association, based in Tampa, which solicited donations in Ohio and 40 other states from 2002-2010.
Gall, who addressed Thompson as Mr. Cody, additionally levied a $6.3 million fine against Thompson, plus a $330,778 judgement to cover the cost of prosecution by the Ohio Attorney General. The judge said factors he considered in determining the sentence included the eight-year duration of Thompson's charity "charade," the amount of money swindled from donors, the efforts Thompson made to hide his identity, and Thompson's lack of remorse or acceptance of responsibility for his actions.
Citing the damage done to veterans who could have been aided by the money that Thompson's charity raised, Gall also ordered that Thompson spend each Veterans Day in solitary confinement for the duration of his prison term....
Prior to the sentencing Joseph Patituce, Thompson's attorney, had suggested a possible sentence of 14 years. After his client got twice that number, Patituce said Thompson still denies that he committed a crime and will appeal.... Patituce said Thompson's refusal to testify in the trial on his own behalf was pivotal. "If he would have testified the verdict would have been different," Patituce said.
Brad Tammaro, an assistant attorney general prosecuting the case, argued against Patituce's suggested 14-year sentence for Thompson, calling that sentence "totally inappropriate." Tammaro also said that "the evidence in the case demonstrates a complete lack of remorse" on the part of Thompson.
And now, from a federal court in Rhode Island:
A federal judge sentenced a Rhode Island lawyer to six years in prison Monday for his role in a $46 million investment fraud that preyed on terminally ill people, calling him the architect of the scheme and saying he didn't seem to recognize the harm he had caused.
Joseph Caramadre was sentenced in Providence after pleading guilty to wire fraud and conspiracy. His lawyers asked for two years in prison and two years in home confinement. Prosecutors sought 10 years. Judge William E. Smith also ordered Caramadre to perform 3,000 hours of community service to help the elderly and terminally ill. He put off the question of restitution because Caramadre's lawyer has objected to the amount.
Caramadre was a prominent lawyer and philanthropist. Prosecutors say he and former employee Raymour Radhakrishnan paid terminally ill people cash, passing it off as charity, then used their personal information to purchase bonds and annuities that would pay out when the person died.
Caramadre pleaded guilty last year but a few months later tried to withdraw his guilty plea. He testified during a hearing on that request that he had committed perjury when he pleaded guilty, prompting the judge to say at the time: "It's amazing to watch a defendant perjure himself by saying he committed perjury the first time." Smith turned down his request to withdraw his plea in May and ordered him immediately into custody.
On Monday, Caramadre stuck with his contention that the plea was a lie, telling the judge he could not say he was sorry for anything although he felt terrible if some terminally ill people felt the investment strategy was not explained to them. "I wish I could play the game," he said, referring to his lack of contrition.
Still, he said, he took responsibility for his guilty plea. Smith said Caramadre seemed to recognize that people were hurt but didn't seem to recognize that he was the one that hurt them.
To the extent I can understand these stories, it seems that many millions of dollars were lost in the fraud on veterans over many years, whereas apparently a lot less money was lost in the fraud on the terminally ill during a shorter period. Also, of course, one defendant was convicted after a lengthy (state) trial and the other was convicted after a (now regretted) federal plea.
Still, is there really any sound way for anyone to assess whether the huge disparity in these two fraud sentences imposed today, one of which is nearly five times as long as the others, are warranted or unwarranted? More broadly, does anyone think it problematic that one defendant was prosecuted in Ohio state court and thus subject to Ohio's sentencing laws that are much different than the other defendant was subject to as a result of his federal prosecution?
DOJ Inspector General stresses "growing crisis" from growth of federal prison population
Thanks to The Crime Report, I have just come across this recently released memorandum from the US Department of Justice's Inspector General detailing the IG's views on the "six challenges that ... represent the most pressing concerns for the Department." Notably, as the cover letter to the memorandum stresses, concerns about the growth of the prison population is at the very top of the IG's list:
Attached to this memorandum is the Office of the Inspector General's (OIG) 2013 list of top management and performance challenges facing the Department of Justice (Department), which we have identified based on our oversight work, research, and judgment. We have prepared similar lists since 1998. By statute this list is required to be included in the Department's Agency Financial Report.
This year’s list identifies six challenges that we believe represent the most pressing concerns for the Department. They are Addressing the Growing Crisis in the Federal Prison System; Safeguarding National Security Consistent with Civil Rights and Liberties; Protecting Taxpayer Funds from Mismanagement and Misuse; Enhancing Cybersecurity; Ensuring Effective and Efficient Law Enforcement; and Restoring Confidence in the Integrity, Fairness, and Accountability of the Department. While we do not prioritize the challenges we identify in our annual top management challenges report, we believe that one of the challenges highlighted this year, which we also identified in last year’s report, represents an increasingly critical threat to the Department’s ability to fulfill its mission. That challenge is Addressing the Growing Crisis in the Federal Prison System.
The crisis in the federal prison system is two-fold. First, the costs of the federal prison system continue to escalate, consuming an ever-larger share of the Department’s budget with no relief in sight. In the current era of flat or declining budgets, the continued growth of the prison system budget poses a threat to the Department’s other critical programs -- including those designed to protect national security, enforce criminal laws, and defend civil rights. As I have stated in testimony to Congress during the past year, the path the Department is on is unsustainable in the current budget environment. Second, federal prisons are facing a number of important safety and security issues, including, most significantly, that they have been overcrowded for years and the problem is only getting worse. Since 2006, Department officials have acknowledged the threat overcrowding poses to the safety and security of its prisons, yet the Department has not put in place a plan that can reasonably be expected to alleviate the problem.
Meeting this challenge will require a coordinated, Department-wide approach in which all relevant Department officials -- from agents, to prosecutors, to prison officials -- participate in reducing the costs and crowding in our prison system. In that respect, the challenge posed by the federal prison system is reflective of all of the challenges on our list: each is truly a challenge to be addressed by the Department as a whole, not just by individual Department components.
As a policy matter, of course, it is not too difficult to devise a set of long-advocated reforms that would effectively help with this crisis: fewer federal drug prosecutions, more use of alternatives to incarceration for low-level federal offenders, greater judicial authority to reduce more unjust crack sentences based on FSA reforms, expanded good-time credits, new earned-time credits, greater use of compassionate release mechanisms, and greater use of executive commutations. The problems is, as a political matter, few in the current Obama Administration seem eager or willing to go beyond just talking the talk about these issues.
Sunday, December 15, 2013
Is a "worst-case scenario" regarding marijuana reform and regulation already emerging in Colorado and Washington?
The question in the title of this post is my reaction to what strikes me as a "Chicken Little" comment appearing in this lengthy New York Times article about marijuana reform in Colorado and Washington. The article, which started on the front page of Saturday's Times is headlined "In 2 States, Corner Cannabis Store Nears Reality." And here are excerpts that provide some background and context for my query:
Starting early next year, any adult with a craving or curiosity will be able to stroll into a strip mall or downtown shop in Colorado or Washington State and do what has long been forbidden: buy a zip-lock bag of legal marijuana.
After landmark votes made marijuana legal for recreational consumption, users in these two states will no longer need doctors’ notes or medical reasons to buy the drug. Instead, they will simply show identification to prove they are at least 21, and with the cautious blessing of state and federal officials, they will be able to buy as much as an ounce of marijuana and smoke it in their living rooms.
It is a new frontier of drug legalization, one that marks a stark turn away from the eras of “Reefer Madness,” zero tolerance and Just Say No warnings about the dangers of marijuana. But it also raises questions about whether these pioneering states will be able to regulate and contain a drug that is still outlawed across most of the country — although medical marijuana can be sold legally in 20 states and the District of Columbia. The end of the prohibition of alcohol in the 1930s, by contrast, to which some historians and legal scholars are comparing this moment, came all at once across the nation.
On this never-traveled road, the outcome on many fronts is uncertain: Supporters predict an economic boom in new business activity, cannabis tourism and reduced public expense with fewer low-level drug offenders clogging jails and courtrooms.
Elected officials, parents’ groups and police chiefs worry that drug traffickers will exploit the new markets, that more teenagers will take up marijuana, and that two places with reputations for fresh air and clean living will become known as America’s stoner states.
Other states flirting with legalization are watching closely too, not least for the expected windfall in state revenue in stiffly taxing something that has never been taxed at all. Referendum drives modeled on Colorado and Washington are already underway for next year in Arizona, California, Oregon and Alaska, and others are expected to follow in 2016. So the pressures to get it right the first time, local and state officials said, are immense. “We are floating in uncharted waters here,” said Mayor Michael B. Hancock of Denver, where 149 businesses have applied to sell or grow retail marijuana.
Consider, for example, the strangely altered new role of the police, who in Washington are required to make sure all marijuana is of the legal, state-licensed variety. That could make for more crackdowns on illegal grow-and-sale operations, not fewer, a fact highlighted when federal agents raided several dispensaries in Colorado last month, smashing glass and hauling away hundreds of plants.
Practical questions about the legal, workaday drug trade have required reams of rules and regulations to answer: Should it be specifically taxed?... Can people give it away in public parks?...
But most important, Colorado and Washington must show skeptical federal authorities that they can control this new world of regulated marijuana, and keep it from flowing to underage consumers, into other states or into the grip of drug traffickers and violent cartels. Even as the Justice Department announced in August that it would not block states from regulating marijuana, it also warned that their enforcement rules “must be tough in practice, not just on paper.”
“We’re already seeing a worst-case scenario emerging,” said Kevin A. Sabet, an opponent of legalization and the co-founder of Project SAM, Smart Approaches to Marijuana. He said marijuana was already flowing from dispensaries into the hands of teenage users, and he predicted the social costs would only mount in the months ahead.
Though I genuinely hope that marijuana reform is successful in Colorado and Washington because it would provide more evidence that freedom and free markets tend to be superior public policy choices to big government, I am genuinely eager to see sensible and sober assessments of the on-the-ground pros and cons of what these two states are trying. But if anti-reform (or, for that matter, pro-reform) advocates are going to persistently scream that the sky is falling (or that all is nirvana), it is going to end up being very hard to come to a truly sound assessment of whether and how reform can be more or less successful.
Saturday, December 14, 2013
New guidelines for sentencing sex offenses promulgated in the UK
This notable new story from across the pond, headlined "Sex offences sentencing overhaul: More emphasis on long-term impact on victims as celebrities have fame used against them," highlights that sentencing rules in other nations also often get ratcheted up following public concern about too lenient sentences in high-profile cases. Here are the basics:
Celebrities who commit sex-offences could see their public image used against them when being sentenced as part of an overhaul of decade-old sentencing guidance for judges in England and Wales. Sex-offenders who are considered to have abused their position of power may be handed longer jail sentences when the guidelines come into effect in April 2014.
Previous “good character” may be considered as an aggravating factor when it has been used to commit a sexual offence, new guidelines drawn up by the Sentencing Council said. The guidelines cover more than 50 offences including rape, child sex offences and trafficking and focus more on the long-term and psychological impact on victims than the previous 2004 guidelines. They also introduce a higher starting point for sentences for offences such as rape of 15 years.
The new guidance was drawn up by the Sentencing Council after a public consultation and research was undertaken with victims groups, medical practitioners, police, NGOs, magistrates and judges. “Across the justice system, changes have been made to ensure that the alleged offenders' behaviour and the context and circumstances of the incident are scrutinised, rather than the credibility of the victim,” Chief Constable David Whatton, national policing lead for violence and public protection, said....
The guidelines come following a series of high-profile sex offence cases, including revelations about disgraced TV presenter Jimmy Savile, that lead to high numbers of sex attack victims coming forward. Cases involving grooming gangs in Rochdale and Oxford separately raised questions about social care and attitudes held towards victims....
While the Sentencing Council can recommend a starting point, offenders can still only receive the maximum sentence available at the time the offence was committed.
Friday, December 13, 2013
SCOTUS grants cert to clarify required intent for federal bank fraud
As reported in this SCOTUSblog post, the Supreme Court this afternoon granted cert on two cases, one of which involves the required mens rea for federal bank fraud charges. Here is part of Lyle Denniston's summary of the case now officially before the Justices:
The Supreme Court agreed on Friday to clarify ... the kind of proof prosecutors must offer to get a conviction for bank fraud under federal law.... The bank fraud case is Loughrin v. United States....
The newly granted case on federal bank fraud involves a man, Kevin Loughrin, who was sentenced to three years in prison for engaging in a scheme to steal bank checks from peoples’ mailboxes, altering them and then using the checks to buy things at retail stores like Target and Wal-Mart, and then returning the merchandise for cash.
Prosecutors charted him with violations of two provisions of bank fraud law: defrauding a financial institution, and obtaining money from financial institutions by fraud. Both were apparently based on evidence that the checks were drawn on Bank of American and Wells-Fargo Bank and on three credit unions.
Loughrin’s lawyers tried to have the jury told that, in order for him to be convicted on either count, there had to be proof that he intended to defraud a bank or other financial institution....
The Tenth Circuit Court rejected his challenge. Under the bank fraud provision on which he was convicted, the Circuit Court ruled, it was enough that Loughrin had sought to defraud someone else — the retail stores — but there was no need for prosecutors to offer evidence of intent to defraud a bank directly.
Splitting 5-4 along party lines, SCOTUS vacates stay to allow Mizzou to complete novel execution
Distracted by other stories yesterday, I only now discovered that the US Supreme Court issued late Wednesday night this order (which, as I will explain below, strikes me as a pretty big deal):
The application to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Eighth Circuit on December 9, 2013, presented to Justice Alito and by him referred to the Court, is granted.
Justice Ginsburg with whom Justice Breyer, Justice Sotomayor, and Justice Kagan join, dissenting.
I would deny the application to vacate the stay of execution entered by the Court of Appeals. See Bowersox v. Williams, 517 U.S. 345, 347 (1996) (GINSBURG, J., dissenting) (“At the very least, before acting irretrievably, this Court might have invited prompt clarification of the Court of Appeals’ [stay] order. Appreciation of our own fallibility, and respect for the judgment of an appellate tribunal closer to the scene than we are, as I see it, demand as much.”).
The start and end of this lengthy AP article about the execution which followed this SCOTUS ruling accounts for why I think this order is a pretty big deal:
Allen Nicklasson once recalled the "euphoria" he felt after fatally shooting a kindly businessman who stopped to help when he saw Nicklasson's car stalled on Interstate 70 near Kingdom City, Mo., in 1994.
Late Wednesday night, Nicklasson was put to death for Richard Drummond's killing — nearly 23 hours after he was originally scheduled to die. It was the second execution in Missouri in three weeks after a nearly three-year hiatus. Racist serial killer Joseph Paul Franklin was executed Nov. 20.
The executions also were the first since Missouri switched from a three-drug protocol to use of a single drug, pentobarbital. Nicklasson, 41, was pronounced dead at 10:52 p.m. Wednesday, eight minutes after the process began. His eyes remained closed throughout and he showed little reaction to the drug, briefly breathing heavily about 2 minutes into the process. He offered no final words....
Nicklasson's execution was originally scheduled for 12:01 a.m. Wednesday. But an appeals court panel granted a stay of execution Monday, citing concerns about his counsel at trial and sentencing in 1996.
When the full appeals court refused to take up the case Tuesday, Missouri Attorney General Chris Koster appealed to the U.S. Supreme Court. It did not return its 5-4 decision to vacate the stay until 10:07 p.m. Wednesday, with Justices Ruth Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissenting. Gov. Jay Nixon refused to grant clemency.
Missouri previously used a three-drug method for executions but changed protocols after drugmakers stopped selling the lethal drugs to prisons and corrections departments. The pentobarbital used in Missouri executions comes from an undisclosed compounding pharmacy — the Missouri Department of Corrections declines to say who makes the drug, or where.
My general sense and understanding is that it is relatively rare for the Supreme Court, especially at the last minute, to vacate a lower court's stay in a capital case, especially if and when that stay was entered by a circuit which does not have a long history of getting in the way of state executions. Moreover, in addition to the legal issues that led to the stay, I think the defendant here was also seeking a stay in order to be able to question and assail Missouri's new lethal injection drugs and method.
Given that the four more liberal Justices were obviously eager to allow the stay of this execution to remain in place, I find it notable and seemingly important that the more conservative Justices were able to get swing Justice Kennedy to vote to vacate the stay and enable the Mizzou execution to be carried out. Particularly given that, over the last few years, aggressive lower-court litigation has probably played more of a role in reducing the total number of executions than many other factors, I cannot help but wonder if this decision represents a kind of (indirect?) statement by a majority of the Supreme Court that, at least for brutal killers who've already gotten to live on death row for decades, enough is enough.
Especially because this SCOTUS order is only an order and has not generated much attention at all, I may be guilty of trying to make this decision more of a big deal than it is. Nevertheless, especially as another year filled with capital habeas litigation winds to a close, I cannot help be think this may be an interesting and telling sign of future SCOTUS capital rulings to come.
How can and should Ohio's justice system deal with merciful elderly aggravated murderer?
I suspect many folks engaged in debates over the wisdom of mandatory minimum sentencing provisions at least feel comfortable with the suggestion that persons convicted of first-degree murder ought to always be mandated to serve at least decades in prison. Indeed, many folks who advocate for the abolition of the death penalty do so by suggesting mandatory LWOP is the right alternative sentence for those deemed the worst kinds of killers under state homicide laws. Though lots of folks (myself included) are troubled by mandatory long prison terms for lower-level drug or gun offenses, lots of folks (myself included) are much less troubled by some mandatory prison requirements in the sentencing rules for how the justice system responds to the very worst intentional violent crimes.
But the provocative question in the title of this post is prompted by a sentencing story developing today in Ohio, which is explained in this AP report headlined "John Wise, attorney to seek clemency from governor in wife's hospital killing." Here are the details:
A man convicted of fatally shooting his ailing wife in her hospital bed will seek clemency from the governor after his sentencing Friday, even if the judge follows a prosecutor's recommendation for a lighter punishment because of the unique circumstances of the case.
John Wise, 68, has said he shot his debilitated wife out of love in August 2012 after she suffered an aneurysm and appeared to be in pain at an Akron hospital. Mercy is not a defense to a murder charge in Ohio. Wise, of Massillon, was convicted on charges including aggravated murder with a firearm specification, which could carry a life sentence.
Summit County Prosecutor Sherri Bevan Walsh called Wise's actions illegal and dangerous but said the case warrants sentencing leniency. She has recommended that Wise be sentenced on a lesser crime and get a six-year term. "In light of the unique facts of this case, a shorter prison sentence is just," she said in a statement.
Whatever the sentence, the defense will pursue clemency from the governor and "will be seeking public support from those who sympathize with John and this situation," defense attorney Paul Adamson said in an email.
Judge Mary Margaret Rowlands in Akron has told attorneys the sentence must fit within legal limits. Neither side found previous case law to support the prosecutor's suggestion that the judge could sentence Wise to six years behind bars for manslaughter, a charge that wasn't among the counts against him but is considered a lesser included offense, Adamson said.
With charges merged for sentencing, it's also possible Wise could get a six-year term if the prosecution asks the judge to sentence him for felonious assault, one of three charges on which he was convicted. April Wiesner, a spokeswoman for the prosecutor, wouldn't say Thursday whether the office intends to pursue that option.
As my first-year Crim Law students know well, "Aggravated Murder" is Ohio's term for first-degree murder and Ohio sentencing law expressly provides that "Whoever is convicted of or pleads guilty to aggravated murder in violation of section 2903.01 of the Revised Code shall suffer death or be imprisoned for life...." Consequently, I am not aware of a sound legal basis for the prosecutor or judge in this case to recommend or impose any sentence other than an LWOP term for the aggravated murder charge. I surmise that the local prosecutor here may be asking for the judge not to sentence on that charge or to have it reduced or dismissed in some way before sentencing.
Ironically, I think the defendant and his lawyer here might want the sentencing judge to feel compelled to impose LWOP and thereby heighten the argument for some kind of clemency relief from Gov. Kasich. If the defendant here gets "only" six years in prison, I suspect it would be much easier for the Governor to leave such a sentence in place and conclude that justice for this murderer has already been tempered by mercy. Indeed, I am inclined to think that the prosecutor here has decided only to seek a six-year prison term for an aggravated murderer because she hope to bring a function end to this case at sentencing today rather than have to deal with a compelling clemency case if John Wise were to get an LWOP sentence.
UPDATE: This new AP report indicates that this aggravated murderer somehow received a sentence of only six years' imprisonment, as prosecutors had recommended:
An Ohio man convicted of fatally shooting his ailing wife in her hospital bed was sentenced Friday to six years in prison and plans to seek clemency from the governor....
The sentence issued by Summit County Court of Common Pleas Judge Mary Margaret Rowlands was in line with prosecutors' recommendation that the Massillon man receive a lighter punishment than the minimum 23 years on his most serious conviction, an aggravated murder count.
Holding a cane and wearing a striped jail outfit, Wise remained seated during the hearing. He made a brief statement, choking up as he apologized to his family and his son. He also thanked the prosecutors and the court.
Prosecutors said the case warranted leniency, but they emphasized that Wise's actions were illegal. "It is not our intention to minimize what happened. You cannot bring a loaded gun into a hospital and shoot someone," Summit County Prosecutor Sherri Bevan Walsh said in a statement after the sentencing.
In court, Assistant Prosecutor Brian LoPrinzi told the judge: "We believe that although his motive may have been pure, he was wrong."
Wise's attorney, Paul Adamson, said they will pursue clemency from the governor and create an online petition for supporters to sign. He called the shooting "an aberrational act" for Wise. "I've never represented a finer man," Adamson told the judge. The prosecutor's office said it would oppose any reduction in Wise's punishment.
Among those at the sentencing was Liz Flaker, one of the jurors who convicted Wise after he pursued an insanity defense. She said the jurors, who deliberated for several hours, took two votes. The first was 9-3 in favor of conviction; the second was unanimous. "There was really no split, per se, but I think there were a couple of people that kind of wavered on ... thinking was he insane or was he not insane," Flaker said. "I think the way the law was written for the state of Ohio is a little bit hazy."
Prosecutors had recommended that Wise be sentenced to six years for manslaughter, a charge that wasn't among the counts against him but is considered a lesser included offense. After neither side found previous case law to support that unusual suggestion, the prosecution instead asked the judge to sentence Wise under his felonious assault conviction with a firearms specification, and the judge did so. Wise also was convicted of aggravated murder with a firearm specification and murder, which could have led to a life sentence.
Police say Wise calmly walked into the hospital room on Aug. 4, 2012, and shot his wife of 45 years at her bedside. She died the next day. Wise told police he intended to kill himself, too, but the weapon jammed.
December 13, 2013 in Clemency and Pardons, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack
Thursday, December 12, 2013
Killer bride in Montana takes a plea deal to second-degree murder just before jury gets case
As reported in this new AP article, headlined "Woman in newlywed killing case agrees to plead guilty to second-degree murder," a high-profile federal homicide trial has now ended in a high-profile plea deal. Here are the details:
A federal judge accepted a guilty plea Thursday from a Montana newlywed after she reached a surprise plea agreement and said she pushed her husband from a cliff in Glacier National Park. The development came before a jury was set to begin considering the case against 22-year-old Jordan Graham.
In exchange for the plea to second-degree murder, prosecutors agreed to drop a first-degree murder charge and a count of making a false statement to authorities. First-degree murder means a crime is premeditated.
Graham could face a maximum sentence of life in prison on March 27.
In accepting the plea, District Judge Donald Molloy told Graham to recount exactly what happened the night of July 7 when her husband Cody Johnson, 25, fell to his death in the park.
Graham said she told Johnson that she wasn't happy and wasn't feeling like she should after getting married. She said they argued and at one point he grabbed her by the arm. She said she brushed his hand away and pushed him, with one hand on his arm and one on his back. "I wasn't thinking about where we were ... I just pushed," she told the judge. She said she then drove back to Kalispell without calling for help because she was so afraid she did not know what to do.
Earlier in the day, defense attorneys wrapped up their case without testimony from Graham. Instead, they showed the jurors pictures and videos of Graham smiling as she had her hair done and tried on her borrowed wedding dress, then videos of the June 29 wedding and the couple's first dance.
Those images attempted to chip away at the prosecution's image of Graham as a cold, dispassionate woman who didn't want to marry Johnson, and their contention that eight days later she led him to a dangerous precipice in the Montana park and deliberately pushed him to his death....
Both the prosecution and defense rested their cases Thursday after three and a-half days of testimony. The plea agreement was reached before closing arguments took place.
As for the statutory sentencing basics, here is the sentencing provision of 18 USC 1111, the federal murder statute: "Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life." The federal sentencing guideline for second degree murder, 2A1.2, provides a base offense level of 38 and recommends an upward departure if "the defendant's conduct was exceptionally heinous, cruel, brutal, or degrading to the victim." Also, I think there could be (and likely will be?) some sentencing debate over whether an adjustment up for a vulnerable victim or an adjustment down for acceptance of responsibility should be applied.
If we assume the guideline level of 38 sticks (and she has no serious criminal history), the USSG Sentencing Table recommends a prison sentence of 235-293 months (just under 20 to 25 years). I suspect the defense team will likely argue for a downward variance from his range, while perhaps the prosecutors will ask for something toward the top of the range. Thus, I would right now put the (way-too-early) over/under betting line for here federal sentence at 20 years' imprisonment.
Previous related posts:
- You be the federal sentencing judge: "Newlywed Admits to Pushing Husband off Cliff"
- Seeking pre-trial sentencing views in high-profile federal murder prosecution of homicidal bride
Texas tough means probation for teen who killed four and injured more while drunk driving?
The question in the title of this post is my reaction to this CNN report headlined "Texas teen Ethan Couch gets 10 years' probation for driving drunk, killing 4." Regular readers know that drunk driving is one notable crime that I fear is consistently under-punished throughout the United States, and the details of this story confirms my fear that elitism and a variety of other potentially pernicious factors may explain why. Here are the details:
To the families of the victims, Ethan Couch was a killer on the road, a drunken teenage driver who caused a crash that left four people dead.
To the defense, the youth is himself a victim -- of "affluenza," according to one psychologist -- the product of wealthy, privileged parents who never set limits for the boy.
To a judge, who sentenced Couch to 10 years' probation but no jail time, he's a defendant in need of treatment.
The decision disappointed prosecutors and stunned victims' family members, who say they feel that Couch got off too easy. Prosecutors had asked for the maximum of 20 years behind bars. "Let's face it. ... There needs to be some justice here," Eric Boyles, who lost his wife and daughter, told CNN's "Anderson Cooper 360" on Wednesday night.
"For 25 weeks, I've been going through a healing process. And so when the verdict came out, I mean, my immediate reaction is -- I'm back to week 1. We have accomplished nothing here. My healing process is out the window," he said.
Lawyers for Couch, 16, had argued that the teen's parents should share part of the blame for the crash because they never set limits for the boy and gave him everything he wanted. According to CNN affiliate WFAA, a psychologist called by the defense described Couch as a product of "affluenza." He reportedly testified that the teen's family felt wealth bought privilege, and that Couch's life could be turned around with one to two years of treatment and no contact with his parents.
Couch was sentenced by a juvenile court judge Tuesday. If he violates the terms of his probation, he could face up to 10 years of incarceration, according to a statement from the Tarrant County Criminal District Attorney's Office. Judge Jean Boyd told the court she would not release Couch to his parents, but would work to find the teen a long-term treatment facility.
"There are absolutely no consequences for what occurred that day," said Boyles. "The primary message has to absolutely be that money and privilege can't buy justice in this country." His wife, Hollie Boyles, and daughter, Shelby, left their home to help Breanna Mitchell, whose SUV had broken down. Brian Jennings, a youth pastor, was driving past and also stopped to help.
All four were killed when the teen's pickup plowed into the pedestrians. Couch's vehicle also struck a parked car, which then slid into another vehicle driving in the opposite direction. Two people riding in the bed of the teen's pickup were tossed in the crash and severely injured. One is no longer able to move or talk because of a brain injury, while the other suffered internal injuries and broken bones.
"There is nothing the judge could have done to lessen the suffering for any of those families," said defense attorney Scott Brown, CNN affiliate KTVT reported. "(The judge) fashioned a sentence that is going to keep Ethan under the thumb of the justice system for the next 10 years," he said. "And if Ethan doesn't do what he's supposed to do, if he has one misstep at all, then this judge, or an adult judge when he's transferred, can then incarcerate him."
Earlier on the night of the accident, June 15, Couch and some friends had stolen beer from a local Walmart. Three hours after the crash, tests showed he had a blood alcohol content of 0.24, three times the legal limit, according to the district attorney's office. "We are disappointed by the punishment assessed but have no power under the law to change or overturn it," said Assistant District Attorney Richard Alpert. "Our thoughts and prayers are with the families and we regret that this outcome has added to the pain and suffering they have endured."
It is very rare, but not impossible, for prosecutors to challenge the sentence on the ground that it was too lenient, CNN legal analyst Sunny Hostin said. "To give him a pass this time given the egregious nature of his conduct -- four deaths -- is just incomprehensible," she said. It is unfair that other young defendants without the same wealth could end up in jail for a lot less, said Hostin, of CNN's "New Day" morning show.
December 12, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (25) | TrackBack
Wednesday, December 11, 2013
Massachusetts Supreme Judicial Court suggests gender is important consideration for placement on state sex offender registry
This AP article, headlined "Mass. court overturns escort's sex offender label," reports on a very interesting ruling today by the top state court in Massachusetts. Here are the basics:
The state’s highest court on Wednesday overturned the classification of a former escort service manager as a low-level sex offender, finding that the state’s Sex Offender Registry Board should have considered research showing women are less likely than men to commit new sex offenses.
The woman, who wasn’t identified in the court’s ruling, pleaded guilty in 2006 to federal charges stemming from her management of an escort service from 2000 to 2002, including one count of transporting a minor to engage in prostitution and one count of sex trafficking of children. She served 17 months in prison while awaiting trial before pleading guilty.
In 2008, the woman requested funds to hire an expert witness, arguing that the board’s guidelines didn’t encompass scientific research on female sex offenders. Her request was rejected by the board. A hearing officer eventually found that she should be classified as a level one sex offender, the lowest level of offender, considered the least likely to reoffend and the least dangerous....
In its ruling Wednesday, the SJC agreed with the woman that the hearing examiner abused his discretion by denying her request for funds for an expert witness who could testify on the subject of how infrequently female sex offenders commit new crimes when compared with men. "We conclude that it was arbitrary and capricious for (the board) to classify Doe’s risk of re-offense and degree of dangerousness without considering the substantial evidence presented at the hearing concerning the effect of gender on recidivism," Justice Barbara Lenk wrote for the court....
The court also said the board is required to ensure that its guidelines are based on "the available literature."
"We do not purport to suggest a frequency with which the guidelines must be updated, but caution that guidelines that fail to heed growing scientific consensus in an area may undercut the individualized nature of the hearing to which a sex offender is entitled, an important due process right," Lenk wrote.
I was able to access the full text of the opinion in Doe v. Sex Offender Registry Board, No. SJC-11328 (Mass. Dec. 11, 2013), at this link.
December 11, 2013 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack
So many notable marijuana stories and so little time to blog 'em all
As my my Marijuana Law, Policy and Reform seminar winds down with students working on final papers, local, state, national and international stories concerning modern marijuana reform efforts is really starting to heat up. Here are headlines and links from just today's latest news of note:
From CNN here, "Uruguay to legalize marijuana, Senate says"
From the Denver Post here, "Colorado officials, pot businesses clash over inventory tracking"
From ESPN magazine here, "Smoke screen: It's time for the NFL to embrace a new pain reliever: marijuana"
From the Huffington Post here, "Polls Suggest California Is Poised To Legalize Marijuana In 2014"
From Politicker here, "Pols Begin Push to Legalize Marijuana in New York State"
From the San Jose Mercury News here, "San Jose medical marijuana crackdown begins after council vote on regulations"
I would be interested in reader perspectives on which of these stories seems the most notable and/or consequential for sentencing law and policy in particular or for American criminal justice more generally.
Cross posted in part at Marijuana Law, Policy and Reform
"Take Action: National Call-In Day for Sentencing Reform TODAY"
The title of this post is the heading of an e-mail I received this morning from The Sentencing Project. Here is the body of the e-mail request for action:
After decades of "get tough" rhetoric, Republicans and Democrats in Congress are finally coming together to say “enough.”
This week, the U.S. Senate is scheduled to take up legislation to address our unjust and racially discriminatory sentencing laws. One of the bills expected to be considered at this week's Senate Judiciary Committee hearing, the Smarter Sentencing Act (S. 1410), takes two significant steps forward. First, it reduces overly harsh penalties for drug offenses and allows judges greater flexibility in sentencing. Second, it extends the more equitable crack cocaine provisions of the Fair Sentencing Act retroactively to individuals serving prison terms under the now discredited 100-to-1 quantity disparity -- a disparity that has had a devastating impact on African American communities.
We need your help. On Wednesday, Dec. 11, civil rights and criminal justice advocates, faith-based groups, and others are joining together to tell their Senators to support sentencing reform.
To join this effort, please call the Senate switchboard TODAY at 202-224-3121 and ask to be connected to each of the Senators from your state. When you are connected, urge your Senator to address unjust sentences and racial disparities in the criminal justice system by supporting the Smarter Sentencing Act, S. 1410.
By modernizing drug sentencing polices and giving federal judges more discretion in sentencing, we can take smart and targeted steps to reduce skyrocketing prison populations and reduce racial disparities in sentencing.
I have tended to be cynical and pessimistic about the import and impact of these kinds of call-in days, but folks who know a lot better than me have reported that they can be quite valuable and consequential.
Poland asks Connecticut not to send murderer to death row
I just saw this intriguing domestic death penalty story from Connecticut with a notable international spin. The piece is headlined "Poland's president challenges state's death penalty," and here are excerpts:
In what could spark an international incident, the president of Poland is demanding the state not execute a former Trumbull man for the terrifying 2006 murders of a city woman, her 9-year-old daughter and a Milford landscaper.
"We strongly believe the death penalty should not be imposed," Agniestka Torres, vice consul and head of the legal section for the Polish consulate general in New York, told Hearst Connecticut Newspapers. "It doesn't matter what crimes he committed."
The government of the Republic of Poland this week notified Gov. Malloy and the Chief State's Attorney Kevin Kane that it objects to Richard Roszkowski -- whose parents were Polish -- getting the death penalty. Torres said the appeal comes directly from their president, Bronislaw Komorowski, who recently signed a law banning the death penalty in all circumstances.
Roszkowski was born in the U.S., but both his parents, who are now dead, emigrated from Poland and Roszkowski visited Poland when he was a child. "As far as we are concerned Mr. Roszkowski is a Polish national and is covered by our laws," Torres said....
This latest development adds to an already controversial status for the state's death penalty. In the last 60 years only one person, convicted serial killer Michael Ross, has been executed in this state and that was in February 2005.
Last year Malloy, an opponent of the death penalty, signed a law abolishing it for any new crimes. However, the law left in place the 10 men currently on death row. That portion of the law is currently under appeal.
Last week jury selection was completed for the death penalty hearing against the 48-year-old Roszkowski. His hearing is set to begin Jan. 7.
In May 2009 a Bridgeport jury found Roszkowski guilty of two counts of capital felony, three counts of murder and one count of criminal possession of a firearm for the Sept. 7, 2006, shooting deaths of 39-year-old Holly Flannery, her daughter, Kylie, and 38-year-old Thomas Gaudet.
Although the same jury that convicted Roszkowski of the crime subsequently found he should get the death penalty, the verdict was overturned on a technicality and a new penalty hearing was ordered. At least one of the jurors selected for the new death penalty hearing appears to be of Polish heritage....
Roszkowski's lawyers did not deny he killed the victims but presented nationally recognized medical experts and death penalty opponents who testified Roszkowski has brain damage caused by earlier car crashes, hepatitis and long-term drug use. The families of the victims declined comment because they are expected to testify in the upcoming hearing.
Among other interesting questions raised by this story concerns whether and how the defense lawyers for this mass murderer ought to be able to bring up these international issues during the penalty trial. Could and should Roszkowski's lawyers be able to argue to the jurors that sentencing Roszkowski to death would cause an international incident and hurt US-Polish relations? Could and should Roszkowski's lawyers be able to have members of the Polish consulate general testify for the defense at the penalty trial?
Tuesday, December 10, 2013
"Harsh Sentences Are Killing the Jury Trial"
The title of this post is the headline of this forceful commentary at The Atlantic authored by Andrew Guthrie Ferguson. Here are lengthy excerpts from a piece that merits a full read:
[T]he Human Rights Watch Report, “An Offer You Can’t Refuse,” confirms that harsh sentencing laws have undermined the American jury system. On average, 97 percent of defendants plead guilty in federal court. For crimes that carry a minimum mandatory sentence, going to trial has simply become too risky. As Human Rights Watch reports: “Defendants convicted of drug offenses with mandatory minimum sentences who went to trial received sentences on average 11 years longer than those who pled guilty.”
This risk goes well beyond the traditional trade-offs. Plea offers have been around since the 1800s and are a well-established and necessary part of criminal practice. But the new mandatory minimums and sentencing enhancements have given federal prosecutors new power to coerce pleas and avoid trials. A prosecutor can now give a minor drug dealer this choice: “Plead guilty to a reduced charge, or go to trial and risk sentencing that will put you in jail for decades.” It’s not hard to understand why so many defendants — whether innocent, guilty, or not quite as guilty as charged — are taking the first option....But, there is a secondary cost that is less often discussed but equally damaging to the criminal justice system. Harsh sentencing laws are killing the jury trial. And without trials, citizens have no say in the criminal justice system.
It is no accident that the jury trial is the only constitutional right to make a repeated appearance in the original Constitution and the Bill of Rights. The founding fathers considered criminal juries to be the best mechanism for checking the power of judges and lawyers. By interposing citizens between a prosecutor and a conviction, the constitutional system protected individual liberty. This is not to say that colonial juries did not convict people quite regularly, and quite harshly. But when they did, citizens, not prosecutors, were the ones condemning the law breakers. It was this local, public participation that gave legitimacy to the larger system.
The modern domination of plea bargains has excised the role of the citizen-juror. Without trials, citizens do not learn about what is happening in the criminal justice system, and they have no way of taking part in it. Instead of seeing the consequences firsthand, ordinary Americans must rely on research reports and news stories. This practice disconnects the people from their own democratically enacted laws, precluding them from evaluating these elective choices.
Unlike trials, plea bargains take place in secret, away from public scrutiny. They involve negotiations between repeat players in the system — the lawyers. And for many types of crimes, the bargains are influenced by federal policies, not local ones. Thus, the jury system — with its emphasis on local authority and public participation — has been replaced with a system as insular as it is broken....The push for jury trials in the Bill of Rights came from citizens — not judges, politicians, or prosecutors. In fact, the perceived lack of citizen involvement in the legal system almost derailed the original Constitution, as Anti-Federalists saw it as a threat to their liberty. Concerned citizens wrote, organized, and protested on behalf of their own role in the justice system. They won, and that victory can still be read in the Sixth Amendment, which promises in rather emphatic terms that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.”
Today, Americans of all political persuasions should embrace a greater role for juries, at least when it comes to federal prosecutions. After all, Tea Party conservatives believe in local, accountable government, while progressive liberals believe in an equitable system of justice. More jury trials will mean more ordinary people engaged in the legal system — more citizens involved in their government. The result will not only be consistent with the original design of the Constitution but, like the jury system, itself, will encourage more local, democratic, participatory engagement with our government and its policies.
A few recent and older related posts on modern prosecutors and plea practices:
- Remarkable new HRW report details massive "trial penalty" due to mandatory minimums in federal system
- "The Prisoners’ (Plea Bargain) Dilemma"
- US District Judge Bennett documents prosecutor-created disparity from § 851 enhancements in yet another potent opinion
- A prosecutor's potent perspective on Lafler, Frye and the future of plea bargaining
- "The Plea Jury"
- Don't federal mandatory minimums preserve a lawless (and perhaps discriminatory) "luck-of-the-draw system" of sentencing?
- Scott Burns from National District Attorneys Association makes the prosecutors case for mandatory minimums
- "Who's Guarding the Henhouse? How the American Prosecutor Came to Devour Those He is Sworn to Protect"
- "The Unchecked Charging Power of the Prosecutor"
Some final squabbling over some of the final executions slated for 2013
This new Reuters piece, headlined "Oklahoma to execute inmate; Missouri execution stayed," provides a run down of some of the final aspects of some of the final executions scheduled for 2013. Here are the details:
Oklahoma on Tuesday was scheduled to execute a man convicted of raping and murdering two elderly women in the 1980s, while a federal appeals court panel has stayed a Missouri execution planned for hours later.
Missouri appealed the 2-1 ruling by the Eighth Circuit U.S. Court of Appeals panel to stay the execution of Allen Nicklasson, 41, who was found guilty of killing a stranger who offered him roadside assistance. Nicklasson has raised claims that his trial and appeals counsel were ineffective. The full Eighth Circuit was expected to hear arguments and rule Tuesday morning on the state's request to lift the stay of Nicklasson's execution, which is set for early Wednesday at a Missouri prison.
The Missouri Department of Corrections is proceeding with its plans for the execution unless instructed differently by the state attorney general, spokesman Mike O'Connell said. Oklahoma is scheduled to execute Ronald Clinton Lott, 53, by lethal injection at a state prison after 6 p.m. Central Time (0000 GMT) on Tuesday.
If carried out, the executions of Lott and Nicklasson would be the 37th and 38th in the United States this year, according to the Death Penalty Information Center.
Lott was convicted of raping and killing Anna Laura Fowler, 83, in 1986 and Zelma Cutler, 90, in 1987 in their Oklahoma City homes after DNA evidence linked him to the crimes.... Another man, Robert Lee Miller Jr., had originally confessed to the rape and murder of the two women and served 11 years, seven on death row, before DNA evidence led authorities to Lott. Miller was released in 1998.
Lott would be the fifth man executed in Oklahoma in 2013. The state is also scheduled to execute Johnny Dale Black, 48, on December 17 for his conviction in the 1998 stabbing death of Ringling, Oklahoma, horse trainer Bill Pogue.
In the Missouri case, Nicklasson was found guilty of murder for the August 1994 shooting of motorist Richard Drummond, who stopped on a highway to help Nicklasson and two other men whose car had broken down. The men had burglarized a home where they stole guns and ammunition before their vehicle broke down. When Drummond stopped to offer a ride, the men abducted him, took him to a wooded area and shot him in the head, according to court records. One of the men, Dennis Skillicorn, was executed in 2009. The other man, Tim DeGraffenreid, was 17 at the time. He pleaded guilty to second-degree murder and received a reduced sentence.
Nicklasson and Skillicorn were also convicted of killing an Arizona couple while they were on the run after killing Drummond. Nicklasson would be the second person executed in Missouri this year.
Nicklasson had been scheduled to die October 23, but Missouri Governor Jay Nixon halted the execution due to broad criticism over the state's planned use of the drug propofol, widely used as an anesthetic in medical procedures. The case is one of many caught up in a nationwide debate over what drugs can or should be used for executions as capital punishment opponents pressure pharmaceutical companies to cut off supplies of drugs for executions. Missouri in November used pentobarbital, a short-acting barbiturate, mixed by a compounding pharmacy to execute serial killer Joseph Paul Franklin.
Because the executions discussed in this piece are the only ones likely to be carried out this month, it appears very likely that there will be less than 40 executions in the United States in 2013. This is only the second time in nearly two decades in which there were less than two score execution throughout the nation, and the last time (in 2008) no executions had been carried out for the first three months of the year as everyone awaited a result in Baze concerning the constitutionality of lethal injection protocols.
Monday, December 09, 2013
Ins't home confinement for only three months and a small fine insufficient punishment for a felony false imprisonment charge?
The question in the title of this post is my reaction to this new CNN report headlined "Ex-San Diego Mayor Bob Filner sentenced to home confinement, fines." Here are the details:
Former San Diego Mayor Bob Filner was sentenced Monday to 90 days in home confinement, three years probation, and a series of fines totaling about $1500 as part of a plea deal.
The 71-year-old pleaded guilty in October to kissing or grabbing three women at campaign events or at City Hall -- one a felony false imprisonment charge, the other two misdemeanor battery charges. The three women were among 19 who accused him of offensive behavior during his tenure as mayor and as a congressman....
GPS monitoring will track his whereabouts during his confinement. He'll be allowed to go out for medical and therapy appointments, religious services, and meetings tied to his probation. He'll also be allowed to leave his apartment but stay within the apartment complex....
[T]he prosecution said Filner's behavior harmed the women and the city. Referring to the three women as Jane Does 1, 2, and 3, the state said Filner humiliated, scared, embarrassed, sexualized and devalued them. Prosecutors also noted that after taking part in two weeks of treatment earlier this year, Filner still denied his crimes "and insisted that he was the victim of a lynch mob."
Filner's attorneys said they did not dispute any of the facts stated by the prosecution. None of the victims chose to be in court for the sentencing.
The felony charge said Filner used force to restrain a woman at a fund-raising event March 6. The misdemeanor charges say he kissed a woman on the lips without her consent at City Hall on April 6 and grabbed a woman's buttock after she asked to have her picture taken with him at a rally on May 25....
Under the plea deal, which was announced in October, Filner would be prohibited from ever seeking or holding public office again, the attorney general's office said. Filner also would not be able to vote, serve on a jury or own a firearm while on probation. Filner also will have to give up pension credit for his time in the mayor's office after March 6, the date of the first offense.
I am not intimately familiar with all the details of all the unlawful intimate and too-familiar behavior of the former mayor of San Diego. But the fact that this plea deal included a felony count proposed by state prosecutors and accepted by the state court judge suggests that many responsible folks think Filner should be foreover branded a felon. In light of that conclusion, I have a hard time seeing the "slap on the wrist" punishment here to be reasonably sufficient, especially if prosecutors had solid evidence that Filner abused more than a dozen women and that "Filner humiliated, scared, embarrassed, sexualized and devalued" his many victims.
I am not sure if this (seemingly too) lenient sentence for Filner was baked into the plea deal or the result of a sentencing judge not being too troubled by Filner's many crimes. Whatever the reality, if the victims truly suffered the way the prosecutor asserted, I am sorry for them that they were not there to speak at Filner's sentencing and that their harm may seem disvaluaed by this outcome. That said, perhaps many of Filner's victims are mostly interested in a huge tort payday, so maybe at least some of them are content with Filner having resources to pay them in a civil suit rather than a huge fine to the state as part of his punishment.