Wednesday, May 01, 2013

New big Human Rights Watch report assails placing juve sex offenders on registries

Us0513_reportcoverAs reported in this new AP piece, Human Rights Watch today released a big report urging governments to stop placing juveniles on publicly accessible sex-offender registries. Here are parts of the AP account of the report and reactions thereto:

Human Rights Watch said its report, being released Wednesday, is the most comprehensive examination to date of the impact that registry laws have on juvenile sex offenders. "Of course anyone responsible for a sexual assault should be held accountable," says lawyer Nicole Pittman, the report's author.  "But punishment should fit both the offense and the offender, and placing children who commit sex offenses on a public registry — often for life — can cause more harm than good."

The report says the laws, which require placing offenders' photographs and personal information on online registries, often make them targets for harassment and violence. In two cases cited in the report, youths were convicted of sex offenses at 12 and committed suicide at 17 due to what their mothers said was despair related to the registries.  One of the boys, from Flint, Mich., killed himself even after being removed from the list....

The registry laws generally include restrictions that prohibit offenders from living within a designated distance of places where children gather, such as schools and playgrounds. "They often struggle to continue their education," Human Rights Watch said.  "Many have a hard time finding — and keeping — a job, or a home."

According to Human Rights Watch, 747,000 adult and youth sex offenders were registered nationwide as of 2011. The organization said it was unable to quantify how many were juveniles, but it interviewed 281 youth sex offenders while preparing the report, as well as defense attorneys, prosecutors, judges, law enforcement officials and victims of child-on-child sexual assault....

Under a federal law, the Adam Walsh Act, states are required to include certain juvenile sex offenders as young as 14 on their registries.  Some states have balked at complying with this requirement, even at the price of losing some federal criminal-justice funding. Other states have provisions tougher than the federal act, subjecting children younger than 14 to the possibility of 25-year or lifetime listings on public registries.

According to Pittman, it's fairly common in about 35 states for juveniles to be placed on public sex-offender registries.  Other states take that step only for juveniles convicted of sex offenses in adult court, she said, while a few place juvenile sex offenders only on registries that are not accessible by the public.

The report recommends that all juveniles be exempted from the public registration laws, citing research suggesting they are less likely to reoffend than adult sex offenders. Short of a full exemption, the report says, registration policies for juveniles should be tailored to account for the nature of their offense, the risk they pose to public safety and their potential for rehabilitation....

Scott Burns, executive director of the National District Attorneys Association, said his organization would not support a blanket exemption of juveniles from the sex-offender registries. But he said prosecutors should have the discretion to require registration or not, based upon each case.

"If a 15-year-old 'sexted' a picture of him or herself, it is safe to say that prosecutors would take appropriate steps to ensure that person isn't required to become a registered sex offender for life," Burns said in an e-mail. "If a 17-year-old had committed multiple violent sex offenses against children, registration as a sex offender would most likely be recommended."...

Mai Fernandez, of the center for victims of crime, said the entire sex-offender system — covering both juveniles and adults — is flawed and needs an overhaul.  "If you know a young person living in your neighborhood has raped someone, there are things that should kick in — tighter supervision, more services — to be sure that child doesn't commit that crime again," Fernandez said.  "That's more important than the registry."

The full 111-page HRW report, which is titled "Raised on the Registry: The Irreparable Harm of Placing Children on Sex Offender Registries in the US," can be accessed via this link in both complete pdf and on-line form. Here is how that page describes the report:

This 111-page report details the harm public registration laws cause for youth sex offenders. The laws, which can apply for decades or even a lifetime and are layered on top of time in prison or juvenile detention, require placing offenders’ personal information on online registries, often making them targets for harassment, humiliation, and even violence. The laws also severely restrict where, and with whom, youth sex offenders may live, work, attend school, or even spend time.

May 1, 2013 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Is adjective "draconian" fitting for a proposed 13-year prison sentence for insider trader?

DracoThe question in the title of this post is prompted by this lengthy new Bloomberg article about the defense's sentencing submission in a high-profile, white-collar federal sentencing scheduled for later this month.  The Bloomberg article is headlined "Chiasson Seeks Leniency From U.S. Judge Citing Charitable Deeds," and here are excerpts:

Level Global Investors LP co-founder Anthony Chiasson, convicted of an insider-trading scheme that reaped $72 million, asked a judge to give him less time in prison than the 13-year term called for by U.S. sentencing guidelines.

Lawyers for Chiasson, 39, called such a sentence “draconian” in a, April 29 court filing. They urged U.S. District Judge Richard Sullivan in Manhattan to impose an unspecified shorter prison term, saying the alleged crimes were “aberrant” and that Chiasson has led an “exemplary life.”

Defense lawyers Greg Morvillo and Reed Weingarten cited Chiasson’s charitable work, including his effort to save his Catholic Jesuit high school in Portland, Maine, from closure, the creation of a scholarship program for his alma mater, Babson College, and his contributions to the Robin Hood Foundation and the Michael J. Fox Foundation.  “Anthony Chiasson is an extraordinary man,” Morvillo and Weingarten said in a memo to Sullivan. “But for the conduct that brings him before the court, Anthony has led an exemplary life.”

Chiasson, who began his career on Wall Street at Solomon Brothers and left SAC Capital Advisors LP to start the hedge fund, is scheduled to be sentenced May 13.  While U.S. court officials said that based on non-binding guidelines Chiasson should serve 121 to 157 months in prison, his lawyers said the appropriate range is 78 to 97 months.

A Manhattan federal jury in December found Chiasson guilty of five counts of securities fraud and convicted former Diamondback Capital Management LLC portfolio manager Todd Newman of one count of conspiracy and four counts of securities fraud.  Newman is scheduled to be sentenced May 2.  The U.S. alleged that the two portfolio managers were part of a “corrupt chain” of hedge-fund managers and analysts and insiders at technology companies who swapped and traded on illicit tips.  The U.S. said Level Global earned $68 million as a result of the insider trading based on material nonpublic information Chiasson received from Spyridon “Sam” Adondakis, a former Level Global analyst who worked for him. 

Defense lawyers estimated the fund earned $11.7 million as a result of trading in the stocks of Dell Inc. and Nvidia Corp. They disputed the government’s allegation that Chiasson based the transactions on illicit information and argued that federal sentencing guidelines allow prosecutors to inflate profits generated as a result of alleged crimes.  “There is only one reason the range is so high: the guidelines’ unrelenting predisposition to punish profit,” Morvillo and Weingarten said.

Morvillo and Weingarten also argued that Chiasson “should not be required to forfeit gains of any co-conspirators.” They said that the fund earned more than $21.6 million on trades by David Ganek, a Level Global co-founder who was ruled by Judge Sullivan to be an uncharged co-conspirator in the insider- trading scheme.  Adondakis, who pleaded guilty, testified that he didn’t tell Ganek about the source of his tips.  Ganek hasn’t been charged with wrongdoing....

Chiasson’s lawyers argued that he deserves a sentence comparable to others convicted of insider trading, including former Goldman Sachs Group Inc. director Rajat Gupta, who was ordered to serve two years in prison, and former Primary Global Research LLC executive James Fleishman and Michael Kimelman, the co-founder of Incremental Capital LLC, who were both given 30- month prison terms.  In January, a federal appeals court allowed Gupta to remain free while he fights his conviction.  Both Fleishman and Kimelman were recently released from prison.

The adjective draconian is often used now as a synonym for unduly harsh punishments, and I am sure I have sometimes used the term this way in various settings. But the faint-hearted linguistic originalist in me cannot help but note that arguably no prison terms should be really called draconian because incarceration was largely an unknown punishment in achient Greece and Draco the lawgiver was (in)famous for prescribing death as a punishment for both major and minor crimes. (With tongue-in-cheek, I suppose maybe a different (but less real) Draco could be expected to be a proponent of long prison terms, though I this this character probably realized he and his family only narrowly avoid imprisonment in Azkaban.)

Historical and literary references aside, these latest insider-trader, white-collar sentencing cases are surely worth watching closely.  My sense is that, especially with the economy seeming to be improving, there is diminishing public and social pressure to "throw the book" at wall-street types like Anthony Chiasson.  And yet, as the arguments in Chiasson's case highlight, every below-guideline sentence given in major white-collar cases provide a strong defense argument in later cases that only below-guideline sentences are proper pursuant to the sentencing commands of 3553(a).

May 1, 2013 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, April 30, 2013

"The Boston Bomber Should Face The Possibility Of The Death Penalty"

The title of this post is the headline of this notable new op-ed published today in Forbes and authored by (frequent SL&P blog commentor) William Otis.  Here are excerpts from this piece:

Dzhokhar Tsarnaev and his brother murdered three people at the Boston Marathon, and grossly mutilated dozens more.  The brother was killed in a shootout with police.  The question is what justice Dzhokhar should face.  The answer, as the Justice Department apparently understands, is a jury empowered to consider the death penalty....

Wanting justice is not wanting vengeance.  It is for this reason that our most honored Presidents — Washington, Lincoln and FDR — not only supported but used the death penalty. President Obama supports it.  At least three-fifths of Americans likewise support it.  Liberal New York Sen. Chuck Schumer says he supports it for the Boston killer.  This is not because these people are bloodthirsty or revenge-driven.  It’s because a prison sentence, no matter what its length, hardly seems to fit some gruesome, hate-driven, calculated crimes.

But that’s not the end of it.  Contrary to a typical abolitionist claim, the death penalty is a deterrent, as the majority of scholarly studies has found.  Anecdotal evidence tells us the same thing; California Sen. Diane Feinstein once recounted the story of a robber who left his gun at home for fear that, if he used it, he could face a death sentence....

While the are some cases in which a reasonable person could think we’ve got the wrong guy, this is not one of them.  There is simply no sane account in which Dzhokhar Tsarnaev didn’t do it.

Some have voiced racial objections to the death penalty.... But that has no bearing in this case in any event, since neither Tsarnaev nor his victims is a member of a race that has historically suffered discrimination.  The legacy of Jim Crow simply does not exist in this case.

The central reason to keep the death penalty available is graphically illustrated here.   The crime was unbelievably sinister, cruel and sadistic; the victims, including an eight year-old, numerous; the perpetrator unrepentant; and his guilt not open to question by any reasonable person.  A society without the moral confidence to use the ultimate punishment in such a case has all but announced that it has no moral confidence at all.

To say that the jury should be empowered to consider the death penalty for Tsarnaev is not necessarily to say it should be imposed.  There may be mitigating circumstances, not presently in sight, that would warrant a lesser sentence.  It is the genius of the jury system that it takes cases one at a time.  But it is for exactly that same reason that we should not take the death penalty off the table in advance, before all the facts -- possibly mitigating, and possibly even more damning -- are known.

Though not explicitly stated by Bill Otis in this Forbes commentary, I perceive an implicit suggestion here that it would only be proper in this case for a federal jury after a transparent in-court sentencing hearing, and not for a federal prosecutor via an unexplained back-room plea deal, to decide what the proper punishment for Dzhokhar Tsarnaev.  And via this post at Crime & Consequences, titled "No Quick and Dirty Deals," Bill Otis makes a bit more explicit why he thinks it would, at least right now, be inappropriate for prosecutors "to take capital punishment off the table in exchange for Tsarnaev's cooperation."  Bill concludes his C&C post this way: "In this high stakes showdown, give no deals to this devil and let a jury do what the Framers designed it to do."

For a host of reasons, I largely agree with Bill in this instance that the final punishment for Dzhokhar Tsarnaev should ultimately be decided by a jury (or a judge). My principal reason for this view in this is because I believe all sentencing decision-making should be as deliberative, open and transparent as possible, and that final sentencing outcomes should result from adjudicative judgements made by neutral judicial-branch actors rather than via opaque bargains and unreviewable policy decisions made by executive branch officials.

While I am pleased that, in this "high-stakes" setting, Bill Otis sees the value of judicial branch actors having ultimate sentencing authority, I am disappointed and somewhat confused why he has a different view when prison sentences are at issue. Specifically, in long comment exchange to a post about reform of federal mandatory minimums, Bill expressed great concerns about letting judges select final sentencing outcomes on the record according to federal sentencing law rather than letting prosecutors make this decision behind closed doors based on their charging and bargaining instincts.  

Dare I suggest it is only because Bill Otis likes the potential outcome of judicial-branch sentencing (rather than executive branch sentencing) in the Tsarnaev case that he now is keen to assert that prosecutors should not take a particular sentencing option off the table?  (For the record, I think it is fine for Bill Otis (or anyone else) to believe/decide that he will always favor whichever sentencing decision-maker is likely to be harsher (or softer).  But I hope he (and others) recognizes that such a position --- whether driven by a desire for consistent sentencing harshness or sentencing leniency --- necessarily prioritizes a substantive commitment to certain kinds of sentencing outcomes, and suggests that certain substantive sentencing ends always justify whatever procedural means are needed to get there.

Some related recent posts:

April 30, 2013 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (49) | TrackBack

US Sentencing Commission names new executive director

I am very pleased to report, as detailed in this official press release, that a former law school classmate of mine has now been named as the next staff director of the US Sentencing Commission.  (Apparently, the fact that Harvard Law School lacked any kind upper-level sentencing course in the early 1990s did not unduly retard the professional development of some of its students).  Here are the details:

The United States Sentencing Commission announced the appointment of Kenneth P. Cohen as its new Staff Director, succeeding Judith W. Sheon. Cohen has served as the Commission’s General Counsel since February 2007 and previously served as its Director of Legislative Affairs.  His appointment becomes effective on June 2, 2013....

Cohen graduated with highest distinction from the University of Virginia in 1988 and cum laude from the Harvard Law School in 1993.  Previously he served as a credit analyst for Chemical Bank in New York, and he was an associate at the Washington D.C. law firm of Covington & Burling from 1993 to 1997.  He also served at the Commissi on as an attorney advisor to then-commissioner Judge Deanell Tacha, and he served on detail as counsel to Senate Judiciary Committee Chairman Arlen Specter from 2005 to 2006.

The same press release also notes another notable recent new hire on the USSC: "The Commission also last month added Noah D. Bookbinder as Director of Legislative and Public Affairs.  Bookbinder previously served as Chief Counsel for Criminal Justice for the Senate Judiciary Committee, where he worked from 2005 to 2013, and as a Trial Attorney for the United States Department of Justice’s Public Integrity Section from 1999 to 2005.   He graduated summa cum laude from Yale University in 1995 and with distinction from Stanford Law School in 1998 and served as a law clerk to United States District Judge Douglas Woodlock."

April 30, 2013 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack

Might the Gov of Virginia soon be a federal criminal defendant?

The question in the title of this post is prompted by this new Washington Post piece, headlined "FBI looking into relationship between McDonnells, donor."   Here are the basics:

FBI agents are conducting interviews about the relationship between Virginia Gov. Robert F. McDonnell, his wife, Maureen, and a major campaign donor who paid for the food at the wedding of the governor’s daughter, according to four people familiar with the questioning.

The agents have been asking associates of the McDonnells about gifts provided to the family by Star Scientific chief executive Jonnie R. Williams Sr. and actions the Republican governor and his wife have taken that may have boosted the company, the people said.

Among the topics being explored, they said, is the $15,000 catering bill that Williams paid for the 2011 wedding of McDonnell’s daughter at Virginia’s historic Executive Mansion.  But questions have extended to other, previously undisclosed gifts from Williams to Maureen McDonnell as well, they said.

The interviews, at which Virginia State Police investigators were present, began in recent months as an outgrowth of a federal investigation of securities transactions involving Star Scientific, which produces a dietary supplement called Anatabloc.  The company disclosed that probe in a regulatory filing last month, saying it had received subpoenas from the U.S. attorney’s office for the Eastern District of Virginia.

Now, federal officials are trying to determine whether to expand that investigation into a broader look at whether McDonnell or his administration took any action to benefit Star Scientific in exchange for monetary or other benefits, according to the four people familiar with the interviews.  It is unclear whether the probe will be broadened.

April 30, 2013 in Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

"D.C.’s Race Disparity in Marijuana Charges Is Getting Worse"

The title of this post is the headline of this notable recent commentary by Rend Smith appearing in Washington's City Paper.  Here are excerpts (with links from the original):

[D]ozens of marijuana activists converged on the National Mall to celebrate 4/20 and push for the drug's legalization.  If photos and videos are any indication, most of the attendees were white.  As a black man, I find their efforts laudable and hearteningly altruistic. D.C.'s campaign against marijuana is racist. If it wasn't, District marijuana enforcement would look a lot less abominable.

In 2010, I wrote about how Jon Gettman, a public policy professor at Shenandoah University, pored through the city's 2007 marijuana arrest records to discover the District had arrested more pot offenders per capita than any other jurisdiction in the country. Gettman also found that the overwhelming majority of pot miscreants the city went after that year — 91 percent — was black.

... In 2007, a black person was eight times more likely to be arrested for a District marijuana offense than a white person, even though researchers have exposed what any college pot dealer can tell you from the comfort of his Barcalounger: Members of both racial groups consume cannabis at nearly equal rates.

D.C.'s dope divide is just as striking when you zoom out.  According to arrest numbers obtained from the Metropolitan Police Department and crunched by a statistician, between 2005 and 2011, D.C. cops filed 30,126 marijuana offense charges.  A staggering number of those — 27,560, or 91 percent — were filed against African-Americans. Only 2,097 were filed against whites.

Blame-the-victim folklore contends that pot-arrest asymmetries, which show up in various cities around the country, are about blacks smoking outside and getting their pot on street corners.  Recent studies contradict that.  And if D.C.'s shameful pot disparity was about anything but racial bias, we'd see it narrowing.

Instead, though the number of black and white pot charges filed fluctuated from year to year, reefer charges filed against blacks rose 6 percent and declined 10 percent for whites between 2005 and 2011.

Over the last decade, the federal city's black population has wavered as its white population shot up.  If municipal pot arrests were impartial, that should have equaled more white potheads learning what the inside of a squad car looked like as arrests of black potheads became scarcer.  Latinos, moving into the city in steady if not overwhelming numbers, for instance, saw their pot arrests rise 40 percent between 2005 and 2011, from 93 pot charges to 153.

Also, at a time when weed has become another chic amenity, there's a good chance that the city's affluent whites have most of D.C.'s stash. Last year, Washingtonian ran a gleeful article about the massive amount of weed rambling through D.C.'s elite neighborhoods courtesy of drug-dealing stroller moms and tony pot-delivery services....

The only politician explicitly working to address the dope divide is longshot at-large D.C. Council candidate Paul Zukerberg, who's made marijuana decriminalization part of his platform.  He attributes the disparity to cops using stop-and-frisk powers on young black males. "In D.C., we’re giving young people twice as many marijuana arrests as high school diplomas," he writes on his website.

Other D.C. politicians I contacted, like Mayor Vince Gray, wouldn't comment on the matter or didn't return messages.  But when I mentioned the dope divide to Police Chief Cathy Lanier (who told the Washington Post she’d tried weed as teen) during an email exchange last year, the top cop seemed concerned.  “Broad statement,” she wrote. “Mixed feelings on enforcement here...”  When I tried to get Lanier to say more, she referred me to her spokesperson, who told me that MPD doesn't insert itself into politics.

April 30, 2013 in Drug Offense Sentencing, Pot Prohibition Issues, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, April 29, 2013

"Is 100 Years a Life Sentence? Opinions Are Divided"

The title of this post is the headline of this notable new Sidebar column in the New York Times by Adam Liptak.  Hard-core sentencing fans should realize from the title that this is a story about one of the many doctrinal questions gurgling in lower courts three years after a landmark Eighth Amendment SCOTUS ruling.  Here are excerpts from the column:

If people who are too young to vote commit crimes short of murder, the Supreme Court said in 2010, they should not be sentenced to die in prison.  That sounds straightforward enough. But there are two ways to understand the decision, Graham v. Florida.

One is formal. The court may have meant only to bar sentences labeled “life without parole.”  On that understanding, judges remained free to impose very long sentences — 100 years, say — as long as they were for a fixed term rather than for life....

The other way to understand the decision is practical.  If the Eighth Amendment’s prohibition of cruel and unusual punishment requires that young offenders be left with a glimmer of hope that they may someday be released, it should not matter whether they were sentenced to life in so many words or as a matter of rudimentary actuarial math.

The lower courts are split on how to interpret the Graham decision, and the Supreme Court seems to be in no hurry to answer the question.  Last week, the justices turned away an appeal from Chaz Bunch of Ohio, who was convicted of kidnapping and raping a woman in a carjacking when he was 16.  He was sentenced to 89 years.  Even assuming he becomes eligible for early release, he will be 95 years old before he can leave prison.

The United States Court of Appeals for the Sixth Circuit, in Cincinnati, upheld the sentence, even as it acknowledged that there were two ways to approach the matter.... Until the Supreme Court speaks, Judge Rogers wrote, there is no “clearly established federal law” to assist Mr. Bunch, who was challenging his state conviction in federal court.

Applying the reasoning of the Graham decision to long fixed sentences, Judge Rogers added, “would lead to a lot of questions.”  An appeals court in Florida last year listed some of them in upholding a 76-year sentence meted out to Leighdon Henry, who was 16 when he committed rape.

“At what number of years would the Eighth Amendment become implicated in the sentencing of a juvenile: 20, 30, 40, 50, some lesser or greater number?” Judge Jacqueline R. Griffin wrote for the court.

Mr. Henry is black and was born in 1989.  The life expectancy of black males born that year was 64, according to the Centers for Disease Control and Prevention. Life expectancy in prison is shorter than it is outside. Wherever the line is, then, a 76-year sentence would seem to be past it.  “Could the number vary from offender to offender based on race, gender, socioeconomic class or other criteria?” Judge Griffin asked.

That is a reasonable question.  But Bryan Stevenson, the executive director of the Equal Justice Initiative in Montgomery, Ala., said it was the wrong one.  “The idea isn’t to get the person as close to death as possible before you deal with the possibility of their release,” he said.  It is, rather, to give juvenile offenders a sporting chance, perhaps after decades in prison, to make the case that they deserve to get out, he said....

The number of juvenile offenders serving de facto life terms because of very long sentences is probably in the hundreds.  Some of the appeals court judges who have upheld such sentences did not sound enthusiastic about the task.  “Without any tools to work with, however, we can only apply Graham as it is written,” Judge Griffin wrote.  “If the Supreme Court has more in mind, it will have to say what that is.”

April 29, 2013 in Assessing Graham and its aftermath, Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Bad news for hard-core death penalty fans: Judy Clarke joins defense team for Boston bomber Dzhokhar Tsarnaev

As reported in this new AP piece, "Judy Clarke is joining the team representing the suspect in the Boston Marathon bombings."  Here is more of the basics of federal public defender Clarke's appointment:

The appointment of Clarke, based in San Diego, Calif., was approved Monday by U.S. Magistrate Judge Marianne Bowler. Bowler denied a request from Dzhokhar Tsarnaev’s public defender to appoint a second death penalty lawyer.  Bowler says Tsarnaev’s lawyers could renew their motion to appoint another death penalty expert if Tsarnaev is indicted....

Clarke’s clients have included Unabomber Ted Kaczynski; Susan Smith, who drowned her two children; and most recently Tucson, Ariz., shooter Jared Loughner.  All received life sentences instead of the death penalty.

Not quite coincidentally, this distinct AP piece from last week provided a little bit of a profile of Clarke and her work, and it highlighted her ability to working out plea deals with prosecutors that serve to spare her clients from facing the death penalty.  Not listed in this latest AP article is Clarke's representation of Olympic Park bomber Eric Rudolf, whose crimes and motivation are arguably most comparable to what it seems we so far know about Dzhokhar Tsarnaev’s crimes and purported motives.  As with the federal mass murderers Kaczynski and Loughner, Clarke helped secure an LWOP plea deal with Rudolf to save his life.

I mused in this post a couple of weeks ago when Tsarnaev was first captured that "as in the case of the Unibomber and the Tucson shooter and other notorious federal mass murderers, I would not be surprised if eventually capital charges are taken off the table for a guaranteed LWOP sentence in exchange for a guilty plea."  The appointment of Clarke prompts me to now turn my musings into a prediction: I think the odds are now pretty good that, after a fair bit of (costly?) legal wranging over the next few months or years, Dzhokhar Tsarnaev will plead guilty and get sentenced to life without the possibility of parole. 

Some related recent posts:

UPDATE:  Just moments after click "Publish" on this post, I saw this interesting new commentary by Mark Osler at MSNBC headlined "Sentence the Boston bomber to meaninglessness." The piece contends that LWOP may be the best "punishment" in this case in these interesting terms:

[W]hat someone like Tsarnaev probably fears most is meaninglessness. He is typical of terrorists, in that he is a young man of little accomplishment who chose to make his mark on the world through a terrible act.  For someone like Tsarnaev, and many others like him, the real fear is a life of being unimportant.  The evidence of that is already clear, given that he chose a path of carnage and destruction, with the high risk of death that comes with all that, rather than to continue life as a nondescript college student.

Fortunately, the alternative to execution in the federal system is precisely what Tsarnaev seems to fear: utter meaninglessness.

Technically, the sentence is called life without parole (there is no parole in the federal system for any sentence).  However, more than anything, it is a sentence to an existence without notice or meaning, to live out one’s life without the deep interactions with the world that inspire people to great and terrible acts.  It begins with being assigned a number which largely replaces one’s name, and it ends with an unnoticed death, rather than the burst of attention that accompanies an execution.

April 29, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (44) | TrackBack

A notable DIG (with lots of explanation) from SCOTUS concerning indigent defense

The Supreme Court has a significant non-decision this morning in Boyer v. Louisiana. Here is the entire per curiam decision for the Court: "The writ of certiorari is dismissed as improvidently granted." But this mini-non-ruling also came with a concurring opinion authored by Justice Alito, joined by Justices Scalia and Thomas, and a a dissenting opinion authored by Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan. This surely suggests that the Chief Justice and/or Justice Kennedy wanted this case to go away rather than have to pick sides on the merits.

Here is a key starting paragraph from Justice Alito's four-page concurrence:

We granted certiorari in this case to decide “[w]hether a state’s failure to fund counsel for an indigent defendant for five years, particularly where failure was the direct result of the prosecution’s choice to seek the death penalty, should be weighed against the state for speedy trial purposes.”  Pet. for Cert. i.  The premise of that question is that a breakdown in Louisiana’s system for paying the attorneys representing petitioner, an indigent defendant who was charged with a capital offense, caused most of the lengthy delay between his arrest and trial.  Because the record shows otherwise, I agree that the writ of certiorari was improvidently granted.

Here is a key starting paragraph from Justice Sotomayor's 10-page dissent:

We granted certiorari to decide whether a delay caused by a State’s failure to fund counsel for an indigent’s de fense should be weighed against the State in determining whether there was a deprivation of a defendant’s Sixth Amendment right to a speedy trial.  568 U.S. ___ (2012).  Rather than dismiss the writ as improvidently granted, I would simply address this question.  Our precedents provide a clear answer: Such a delay should weigh against the State.  It is important for States to understand that they have an obligation to protect a defendant’s constitutional right to a speedy trial. I respectfully dissent.

April 29, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

SCOTUS grants cert on federal criminal law causation issues

The Supreme Court, despite having one of it members on the DL, gets a new week started with some notable criminal justice action.  First and foremost, it has granted review, via this order list, in Burrage v. United States (12-7515).  Here is how the SCOTUSblog folks describes the questions on which cert was granted in Burrage:

First, whether the crime of distributing drugs causing death is a strict liability crime without a cause requirement.

Second, whether a person can be convicted of that crime under jury instructions which allow a conviction when the heroin contributed to death but was not the sole cause of the death.

The way these issues matter in Burrage can be figured out from the Eighth Circuit decision from last year, which can be accessed at this link.  And, thanks to the SCOTUSblog folks, now the cert petition can be accessed at this link.

April 29, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, April 28, 2013

Lawyers and prisoners using Yelp to review lock-ups

Yelp_logo.svgAs reported in this new Washington Post piece, headlined "With few other outlets, inmates review prisons on Yelp," one can find more than restaurant reviews on-line these days.   Here are excerpts from this article:

Lawyer Robert Miller has visited five prisons and 17 jails in his lifetime, but he has reviewed only three of them on Yelp. One he found “average,” with inexperienced and power-hungry officers. Another he faulted for its “kind of very firmly rude staff.”  His most recent review, a January critique of Theo Lacy jail in Orange County, Calif., lauds the cleanliness, urban setting and “very nice” deputies.  Miller gave it five out of five stars.

“I started reviewing because I needed something to kill time while I waited to see clients,” said Miller, who has worked as a private defense lawyer in Southern California for 18 years.  “But I think the reviews are actually helpful for bail bondsmen, attorneys, family members — a lot of people, actually.”...

Because Yelp does not break out statistics by business type, it’s difficult to tell how many jails and prisons have been reviewed in the 19 countries covered by the site.  (Yelp declined to comment for this article, aside from noting that users may review any business with a physical address, as long as the review follows site guidelines.)  In the Washington region, six incarceration facilities have earned reviews, including two in 2013....

Accuracy is, of course, a major concern with Yelp reviews of any type, and an especially big one when reviewers make serious complaints.  In June 2012, a reviewer alleged that five guards at the Men’s Central Jail in Los Angeles beat him for no reason and laughed about it afterward. Other reviews of the jail mention rat infestations, violence and racial tensions.

“Every allegation we get, we investigate,” said Stephen Whitmore, spokesman for Los Angeles County Sheriff Lee Baca.  He notes that the jail has also its share of four- and five-star reviews.  “But this Yelp phenomenon I find curious,” Whitmore said. “Jail isn’t a restaurant. It isn’t seeing a movie. You’re doing time for committing a crime.”

Bad reviews aren’t unique to Los Angeles.  In New York, one user wrote that officers pressure inmates going through drug withdrawal to lie about their symptoms, presumably so the jail doesn’t have to provide treatment....

Although some look upon the reviews as weird novelties — “like Lonely Planet for career criminals,” one Buzzfeed post put it — they could reflect serious flaws in the U.S. prison system.  Because of a 1996 law called the Prison Litigation Reform Act, inmates cannot sue over prison conditions until they have “exhausted” administrative procedures, and they can ask for only limited changes to prison policy.  Just a few states, such as Texas and New York, have outside inspectors who watch for abuse within the system....

David Fathi, director of the National Prison Project of the American Civil Liberties Union ... said his group receives 300 to 400 written complaints each month about prison conditions.  That number does not include the phone calls and e-mails the project receives or the complaints addressed to the ACLU’s state branches.  Almost none of those grievances make it to court.  So Yelp reviews, Fathi said, could prove to be pretty powerful.  “Prisons and jails are closed institutions, and the lack of outside scrutiny and oversight sometimes facilitates mistreatment and abuse,” Fathi said.  “So anything that increases public awareness of prison conditions is a positive thing.”

Not all of those reviews are accurate, of course, and many may come from pranksters who don’t care about the travails of prison life.  The reviews also won’t necessarily prompt systemic change — it’s not like a detention center relies on good Yelp reviews for business the way some restaurants and small businesses do.

But Miller, the California lawyer, said the reviews can help educate professionals who work with the prison system and inform the public about the conditions inmates face.  “It helps elevate consciousness of the problems and brings transparency and oversight to a system that isn’t used to being transparent,” Miller said.  “That’s a very valuable tool.”

April 28, 2013 in Prisons and prisoners, Who Sentences? | Permalink | Comments (5) | TrackBack

Potent preview of pot policy prospects, problems and possibilities

With apologies for the forced illeteration in the headline of this post, I was inspired by this effective new USA Today column by Beau Kilmer headlined "7 key questions on marijuana legalization: As more states consider the move, they will face some new and tricky issues." The start of the piece and the headings highlighted below perhaps provide an explanation:

Believe me, I've heard all the pot jokes, and some of them are true.  Public support for legalizing marijuana use is at an all-time high. Some state-level marijuana laws are going up in smoke.  And yes, Washington and Colorado are embarking on a historic joint venture.

Puns aside, discussions about marijuana legalization are getting serious.  In November, voters in Colorado and Washington made the unprecedented decision to allow commercial production, distribution and possession of marijuana for nonmedical purposes.  Not even the Netherlands goes that far.

Policymakers in both states are confronting some new and tricky issues that have never been addressed.  For them, and for anyone else thinking about changing their pot laws, here are seven key decision areas that will shape the costs and benefits of marijuana legalization:

1. Production.  Where will legal pot be grown -- outdoors on commercial farms, inside in confined growing spaces, or somewhere in between?...

2. Profit motive.  If there is a commercial pot industry, businesses will have strong incentives to create and maintain the heavy users who use most of the pot...

3. Promotion.  Will states try to limit or counter advertisements in the communities and stores that sell marijuana?...

4. Prevention.  If pot is legal for adults, how will school and community prevention programs adapt their messages to prevent kids from using?...

5. Potency.  Marijuana potency is usually measured by its tetrahydrocannabinol content, or THC -- the chemical compound largely responsible for creating the "high" from pot, as well as increasing the risk of panic attacks....

6. Price.  With marijuana, like any other commodity, price will influence consumption and revenues....

7. Permanency.  The first jurisdictions to legalize pot will probably suffer growing pains and want to make changes later on....

April 28, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, April 26, 2013

Current NRA president vocally supporting (liberal? conservative?) mandatory minimum sentencing reform in Oregon

David Keene, a former chairman of the American Conservative Union who is now serving as president of the National Rifle Association, has this notable new commentary piece in the Salem Statesman Journal promoting sentencing reform in the Beaver State. Here are excerpts:

If you are an Oregon conservative, I hope you’re asking the same question the state’s bipartisan Commission on Public Safety asked: “Are taxpayers getting the most from the money we spend on public safety?”  Oregon has been a leader in effective corrections policy and boasts one of the lowest recidivism rates in the nation.

But the state is trending in the wrong direction when it comes to corrections spending, and much of the growth is due to mandatory minimum sentences that violate conservative principles.

Oregon criminal justice agencies predict that the state’s prison population will grow significantly over the next 10 years, and that the growth will be composed mostly of nonviolent offenders. The expected inmate surge is projected to cost Oregon taxpayers $600 million, on top of the biennial corrections budget of $1.3 billion.

The time is ripe for comprehensive criminal justice reform — not only supported by Oregon conservatives, but led by Oregon conservatives.

We believe all government spending programs need to be put to the cost-benefit test, and criminal justice is no exception.  Oregon has done a good job with this in the past but is slipping, by locking up more offenders who could be held accountable with shorter sentences followed by more effective, less expensive local supervision programs....

As conservatives, we also believe that a key to protecting our freedom is maintaining the separation of powers between the branches of government.  Such protection is lost when so-called “mandatory minimum” sentences force the judicial branch to impose broad-brush responses to nuanced problems.  Mandatory minimums were adopted in response to the abuses of a few judges decades ago, but have proven a blunt, costly and constitutionally problematic one-size-fits-all solution begging for reform.

The commission’s recommendations make modest prospective changes to mandatory minimums under Measures 11 and 57.  These measures have given prosecutors unchecked power to determine sentences by way of charging decisions, regardless of the facts of the case, or the individual’s history and likelihood of re-offending.

The reform package now before the Legislature would restore the constitutional role of the courts for three of the 22 offenses covered by Measure 11. Judges could still impose the stiffest penalties where necessary, but would regain discretion in sentencing appropriate offenders to shorter prison terms or less expensive, more intensive community supervision.

These sensible reforms will restore some checks and balances between prosecutors and the courts, allow prison resources to be focused on serious violent offenders and let taxpayers know that their public safety dollars are being spent more wisely.

April 26, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (8) | TrackBack

Thursday, April 25, 2013

"Harvard Law School Offers 'Tax Planning For Marijuana Dealers' --- No Joke."

The title of this post is the headline of this new Forbes commentary which discusses a presentation of this notable paper by Benjamin Leff available via SSRN.  Here is the context for the article and why a new Forbes piece stressed its affiliation with President Obama's alma mater:

Perhaps Harvard’s Board of Trustees will get wind of it and get upset. But the ire should be directed at tax rules that need fixing.  Now that we have legalized medical marijuana in 18 states and the District of Columbia can these businesses be run like businesses? Not really.  Massachusetts was the most recent entrant, and its marijuana businesses, like those in all the other states, face legal and tax problems....

Why?  Because even legal dispensaries are drug traffickers to the feds.  Section 280E of the tax code denies them tax deductions, even for legitimate business costs.  Of all the federal enforcement efforts, taxes hurt most.  “The federal tax situation is the biggest threat to businesses and could push the entire industry underground,” the leading trade publication for the marijuana industry reports.

One answer is for dispensaries to deduct other expenses distinct from dispensing marijuana. If a dispensary sells marijuana and is in the separate business of care-giving, the care-giving expenses are deductible....

Another idea was presented April 24 at Harvard by Professor Benjamin Leff of American University’s Law School.  Professor Leff’s paper carried an unvarnished title: Tax Planning for Marijuana Dealers.  It was part of Harvard’s Tax Policy Seminar hosted by Harvard Prof. Stephen Shay.  Mr. Leff correctly pointed out the 280E Catch 22 and came up with another end run.

Marijuana sellers could operate as nonprofit social welfare organizations, he suggested. [See Leff's February Slate piece, Growing the Business: How Legal Marijuana Sellers Can Beat a Draconian Tax]. That way Section 280E shouldn’t apply.  A social welfare organization must promote the common good and general welfare of people in its neighborhood or community.  Operating businesses in distressed neighborhoods to provide jobs and job-training for residents?  That could fit a dispensary nicely.

You don’t need a Harvard education to see that there’s something wrong with this picture. Meanwhile, Congressmen Jared Polis (D-CO) and Earl Blumenauer (D-OR) have introduced a bill to end the federal prohibition on marijuana and allow it to be taxed.  This legislation would remove marijuana from the Controlled Substances Act.

That way growers, sellers and users could no longer fear violating federal law.  Their Marijuana Tax Equity Act would also impose an excise tax on cannabis sales and an annual occupational tax on workers dealing in the growing field of legal marijuana.  Whatever happens, it’s at least good that someone is paying attention to this mess.

April 25, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2) | TrackBack

Arkansas Supreme Court explains what Miller ruling means now for Kuntrell Jackson

As reported in this AP piece, in a ruling today the Arkansas Supreme Court "ordered a new sentencing hearing for Kuntrell Jackson, whose case was one of two that led to a U.S. Supreme Court decision last year throwing out mandatory life sentences without parole for juveniles." The nine-page ruling in Jackson v. Norris, 2013 Ark. 175 (April 25, 2013) (available here), is an interesting read for a number of reasons.

First, this latest round of habeas litigation for  Kuntrell Jackson does not deal at all with any possible dispute over whether the Supreme Court's Miller ruling is to be given retroactive effect.  This may because it appears the prosecution did not contest Jackson's request to be resentencing in light of Miller, as evidence by this sentence from the opinion: "We agree with the State’s concession that Jackson is entitled to the benefit of the United State’s Supreme Court’s opinion in his own case.  See Yates v. Aiken, 484 U.S. 211, 218 (1988)."

Second, after parroting most of the key language from the SCOTUS Miller ruling, the Arkansas Supreme Court has an interesting discussion of how to revamp the sentencing provisions applicable to Kuntrell Jackson's conviction in the wake of Miller.  Here is how that discussion finishes:

We thus instruct the Mississippi County Circuit Court to hold a sentencing hearing where Jackson may present Miller evidence for consideration.  We further instruct that Jackson’s sentence must fall within the statutory discretionary sentencing range for a Class Y felony.  For a Class Y felony, the sentence is not a mandatory sentence of life imprisonment without parole, but instead a discretionary sentencing range of not less than ten years and not more than forty years, or life.  Ark. Code Ann. § 5-4-401(a)(1) (Repl. 1997).

Finally, we are mindful that Jackson argues that as a matter of Eighth Amendment law, and because of the unique circumstances of this case, he cannot be sentenced to life imprisonment. However, it is premature to consider whether a life sentence would be permissible given that a life sentence is only one of the options available on resentencing.

Notably, Jackson's crime took place in 1999, and I presume he has been in custody since his arrest. In other words, given that he has already served more than a decade in prison and that the Arkansas Supreme Court has decided he is now eligible for a sentence as low as 10 years, he could possibly upon resentencing get a term of only time served. Going forward, it will be interesting to see what sentence state prosecutors request and what sentence actually gets imposed on Jackson at his future resentencing.

April 25, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

"Can I Say I'm Sorry? Examining the Potential of an Apology Privilege in Criminal Law"

The title of this post is the title of this article by Michael Jones, which I just saw via SSRN. Here is the abstract:

This paper is written for the purpose of addressing the power and possibility of early apologies in the criminal justice system. As constructed, our criminal justice system rewards defendants that learn early in their case to remain silent, and punishes those that talk. Defendants that may want to offer an apology or allocution for the harm they’ve caused are often required to wait until a sentencing hearing, which may come months, or even years after the event in question.

This paper proposes that the Arizona Rules of Criminal Procedure be modified to provide an exception for apology to criminal defendants. Apologies can play an invaluable role in the healing process for victims, defendants, family members and others tied together by the unfortunate events of a criminal prosecution. This paper seeks to further the comprehensive law movement approach that promotes a healing process for those involved in the criminal justice system.

April 25, 2013 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Wednesday, April 24, 2013

A prosecutor's potent perspective on Lafler?, Frye and the future of plea bargaining

I was pleased to learn about this interesting new commentary now appearing in the Houston Law Review’s online edition by Graham Polando, who is Deputy Prosecuting Attorney in Marshall County, Indiana.  The short and insightful piece is titled "Being Honest About Chance: Mitigating Lafler v. Cooper's Costs," and here is an excerpt from its first section:

What so exorcises prosecutors about Lafler, then, is that Cooper will get to have his cake and eat it too --—he got a shot at acquittal, then, that having failed, he will get the original plea offer the prosecutor designed, at least in part, to avoid that contingency.

The problem, then, is not one of resources (as Justice Alito contended), but of information.  Cooper received a look behind the veil of uncertainty provided by the trial and did not like what he saw.  Rather than an egg that cannot be unscrambled, this is a bell that cannot be unrung.

After Lafler, a prosecutor rightly worries, a defendant will be able to proceed to trial with the plea offer in his pocket, forcing specific performance when counsel's advice to proceed turns out to be incorrect, as it must have been -- he was, after all, convicted!  Chief Justice Roberts himself noted this concern at oral argument: “"[I]f you're the defense counsel, the best thing for you to do is not communicate any plea offer you get, and then if your client is found guilty, then you can go back and say, oh by the way, I didn't tell you about this, and he gets a whole new trial."  As in other contexts, the defendant benefits from both his counsel's successes (by getting a favorable result) and failures (by obtaining relief).  The rational prosecutor might respond to Lafler, then, by eliminating plea offers altogether, or at least reducing them.

April 24, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

"Balancing the State and Federal Roles in Boston Bomber Case"

The title of this post is the headline of this new article via Stateline, and here are some excerpts that reinforce my sense that at least some Masschusetts officials are quite pleased the feds have taken over the initial prosecution in this case because of the availability of the death penalty:

It’s not clear that anyone in Massachusetts is objecting to a potential death sentence in the bombings that killed three and injured hundreds, and in fact, a bipartisan group of lawmakers filed a bill Tuesday to reinstate the death penalty.  “What if he were not going to be federally charged?” said Republican Rep. Shaunna O’Connell in an interview with the Boston Globe.  “In Massachusetts, there would be no death penalty for him.”

The federal interest in the case against Tsarnaev is national security and the so far, state and federal authorities are cooperating.  There’s no federalism ground for the state of Massachusetts to object to a death sentence, said Robert Chesney, a professor at the University of Texas School of Law, since the federal charge carries a federal death sentence.  The final decision on whether to seek the death penalty will be made by Attorney General Eric Holder.

Currently, the state does not plan to introduce state charges against Tsarnaev, said Jake Wark, press secretary for the Suffolk County district attorney who handles all violent crime in Boston.  Wark said that in the first few hours after the explosions near the finish line of the Boston Marathon, the Suffolk County District Attorney’s Office was responsible for the case and handled it like any triple murder investigation.  But after the call came from Washington late Monday afternoon, the district attorney’s office deferred to the United States Attorney’s Office to proceed with the terrorism investigation.

Gov. Deval Patrick has been silent on the issue since the bombings, but said in 2005, “The death penalty can never be made foolproof, it is not a deterrent, and the huge costs incurred in capital proceedings divert resources away from actually fighting and prosecuting crime.”

So far in the investigation, federal, state and local authorities have worked together nearly seamlessly.  David Laufman, a former federal prosecutor in the Eastern District of Virginia, said that is the result of 10 years of relationship building between the FBI and state and local law enforcement.  In Boston, the joint terrorism task force, headed by the U.S. Department of Justice and FBI but also staffed with state and local officers, is taking the lead in the investigation.

“The FBI took some lumps in the 9/11 era for big-footing state and local law enforcement in national security and in other cases,” said Laufman, “but the FBI’s made a concerted effort to improve state and local relationships and now there are much better working relationships for the FBI to work in cases like this.”

Some related recent posts:

April 24, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Justice Safety Valve Act gets bipartisan introduction in House of Representatives

A helpful media members forwarded me a press release which provided the basis for this notable federal sentencing news from inside the Beltway:

Rep. Robert C. “Bobby” Scott, D-VA, and Rep. Thomas Massie, a Republican from Kentucky, today introduced the bipartisan Justice Safety Valve Act of 2013, which would give federal judges the flexibility to issue sentences below mandatory minimums.

Republican Sen. Rand Paul of Kentucky and Sen. Patrick Leahy, a Democrat from Vermont and chairman of the Senate Judiciary Committee, had previously introduced a Senate version of the bill on March 20.

Scott said that mandatory minimum sentences have been shown to mandate unjust results.  “They have a racially discriminatory impact, studies conclude that they waste the taxpayer’s money, and they often violate common sense,” he said.

Massie added that the one size fits all approach of federally mandated minimums does not give local judges the latitude they need to ensure that punishments fit the crimes. “As a result, nonviolent offenders are sometimes given excessive sentences,” Massie said. ”Furthermore, public safety can be compromised because violent offenders are released from our nation’s overcrowded prisons to make room for nonviolent offenders,” he said.

Now that there is bipartisan support in both houses of Congress for the Justice Safety Valve Act of 2013 (Senate story covered here), we finally have the foundation and the opportunity to find out if President Obama and his Department of Justice are prepared to start walking the walk (instead of just talking the talk) about the need for cost-conscious, data-driven modern federal sentencing reforms.  importantly, the Justice Safety Valve Act of 2013 is a big deal in the formal law which would really not be that big deal in actual practice: the law essentially provides that now-mandatory minimum statutory sentencing terms would be presumptive minimum sentencing provisions for federal judges (which, of course, has always been their status for federal prosecutors, who have charging/bargaining powers that can allow them to take mandatory off the table when it suits their interests).

Especially in the early part of a second term, with federal criminal justice actors dealing with budget cuts and furloughs, and with most Americans pleased with the possibility of federal charges in Boston including a (discretionary) death sentencing system, now is the time for President Obama to finally live up to his 2007 campaign promise at Howard university (covered here) to "review mandatory minimum drug sentencing to see where we can be smarter on crime and reduce the blind and counterproductive warehousing of non-violent offenders."  If not now, when?  And if not with support of the Justice Safety Valve Act of 2013, how?

Less than three weeks ago, Attorny General Holder stated forcefully in a big speech (covered here) that, in the United States today, "too many people go to too many prisons for far too long for no good law enforcement reason." In that same speech, AG Holder stated plainly: "Statutes passed by legislatures that mandate sentences, irrespective of the unique facts of an individual case, too often bear no relation to the conduct at issue, breed disrespect for the system, and are ultimately counterproductive." The Justice Safetly Valve Act of 2013 could and would (especially if made retroactive) directly and perhaps profoundly address these issues in the federal sentencing system via one simple bill.

If President Obama and AG Holder really mean what they say and say what they really mean, we should expect press releases coming from the Department of Justice and the White House putting the force force and weight of the Obama Administration behind the Justice Safetly Valve Act of 2013 and urging its passage ASAP.  But I fear that we will not be seeing such a press release in the near future -- that worrisome reality will, in turn, lead me again to my growing concern that the Obama Administration's persistent failure to champion badly needed sentencing reforms will become its most lasting federal criminal justice legacy.

Some recent and older related posts:

April 24, 2013 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (37) | TrackBack

Lots on sentencing, sequester and other stuff at "Hercules and the Umpire"

I am not at all surprised that, less than two months after coming on-line, U.S. District Court Judge Richard Kopf's his notable blog, "Hercules and the Umpire," is now a regular must-read.  Here are just a few April posts by Judge Kopf on topics that should greatly interest sentencing fans, sequester watchers and so many others: 

On sentencing:

On sequester realities:

On other stuff:

There is so much worth of attention in these (and other) posts by Judge kopf, but I want to close this post with excerpts from yesterday's post warning Congress about the impact of sequester:

I just received notice that the Federal Public Defender for the District of Nebraska furloughed his staff and closed his office on Friday, April 19, 2013 and he plans to furlough and close his office on 10 additional days. Here is the missive received today from our Clerk’s office:...

The Nebraska Judicial Council directs all courtroom deputies and judicial assistants to avoid scheduling any trial and hearings involving the Nebraska Federal Public Defender’s Office on the following dates ...[when that office] will be furloughed....

While I intend to honor this directive, I am also contemplating the dismissal of a certain percentage of criminal cases assigned to the FPD. If I dismiss a bunch of immigration cases, where a short prison sentence would otherwise be imposed and the defendants will be deported anyway, perhaps I can assist the FPD in meeting his statutory and constitutional obligations. I have not finally decided on this course of action, but I am seriously contemplating it.

Congress is therefore on notice that its failure to fund the judiciary, and most particularly the Federal Public Defenders and Criminal Justice Act counsel, may result in the guilty going unpunished. If a banana republic is what members of Congress want, I may help them get it.

April 24, 2013 in Recommended reading, Who Sentences? | Permalink | Comments (3) | TrackBack

States seek to find right tax formula for newly legal recreational marijuana

This notable New York Times piece, headlined ""Colorado Ponders the Economics of a Marijuana Tax," highlights the challenges of fuguring out the best state tax structure and rates for legalized marijuana. Here are excerpts:

If marijuana is legalized and properly regulated, its proponents have long said, it could generate millions of dollars in state tax revenue.  But how the drug should be taxed has proved to be a thorny question.

In Colorado, where voters approved a measure in November legalizing small amounts of marijuana for recreational use, officials have been grappling with this issue for months as the state works to forge a cohesive regulatory code.

This week, legislators here will consider excise and sales taxes on marijuana of up to 30 percent combined.  The proposal emerged from a task force of health officials, representatives of the state’s rapidly developing marijuana industry and others that was commissioned last year to help develop rules for marijuana.

The goal, task force members and lawmakers say, is to set taxes high enough to finance the administration of new laws, but not so high that customers are driven back to the black market.

“We should see a financial benefit as a state that can help pay for enforcement and other fundamental issues,” said Christian Sederberg, a Denver lawyer on the panel whose firm helped draft Amendment 64, the measure legalizing recreational marijuana.  “The other side is that if you tax something too high, then you simply crowd out the regulated market.  We’re confident we’ll find the right balance.”

Under the proposal, the first $40 million collected from a 15 percent excise tax would be used to build public schools.  Revenue from a 15 percent sales tax imposed, in addition to the state’s 2.9 percent sales tax and any local sales tax, would be apportioned to local governments and for enforcement....

State Representative Jonathan Singer, a Democrat from Longmont and the bill’s sponsor, said finding the right tax rate was also a matter of public safety.  “The big thing is that we want to make sure we’re able to put the appropriate safeguards in place so that marijuana doesn’t end up in the hands of kids, criminals or cartels,” he said.

Not everyone is certain that a tax is a good idea.  Michael Elliott, executive director of the Medical Marijuana Industry Group here, said he feared that too heavy a tax could make it hard for any marijuana business to survive, because Colorado’s black market is so entrenched....  “Higher taxes on the legal, commercial model will prevent the transition to a legitimate market from happening and keep more people buying it illegally,” he said....

In Washington State, where voters in November passed a similar measure legalizing small amounts of marijuana for personal use, taxes will be levied in three tiers of 25 percent each on producers, processors and retailers.  Those taxes were laid out in the initiative that voters approved, and passing on the costs will result in an effective rate for consumers of 44 percent, according to the state’s Liquor Control Board, which will administer marijuana regulations....

Jeffrey Miron, an economics professor at Harvard University and a senior fellow at the Cato Institute, a libertarian group, cautioned that while both states’ approaches seemed reasonable, he doubted the taxes would create a substantial windfall.  Dr. Miron, who supports legalization, said that as long as federal marijuana laws continued to be unsettled, collecting taxes would be challenging.  Moreover, he said, there is no way to predict how many customers would continue to buy on the black market.

After Prohibition ended in 1933, states levied taxes on alcohol, in part because they were desperate for revenue after the Great Depression.  But that shift, Dr. Miron noted, was undertaken with the full support of the federal government.  “It’s easy to get a little overexcited that legalizing marijuana is going to solve the world’s budgetary problems,” Dr. Miron said.  “But the question for the tax revenue part of this will be how much the federal government allows these markets to come completely above ground.”

April 24, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2) | TrackBack

"You Can't Get There from Here: Elderly Prisoners, Prison Downsizing, and the Insufficiency of Cost Cutting Advocacy"

The title of this post is the title of this notable new piece by Elizabeth Rapaport now available via SSRN. Here is the abstract:

The prison population in the United States has peaked and begun to recede, reversing more than 30 years of growth.  Mass incarceration is yielding to the imperative to reduce state budgets in recessionary times. As states turn away from the extravagant use of prison for nonviolent offenders, the percentage of the prison population serving long and life sentences for violent felonies will increase.  By 2009 one in eleven prisoners were lifers. These are the prisoners growing old and dying in prison. 

High cost elderly prisoners who have aged out of crime should be good candidates for cost saving measures such as compassionate release, parole, and release through community corrections programs.  This impression does not withstand scrutiny. Two thirds of elderly prisoners have been convicted of violent crimes; one quarter has been convicted of sexual offenses.  Programs to reduce prison costs have indeed gained ground but they are designed for a very different population.  The offender who is well positioned to avoid or leave prison as a result of cost savings policies is a young nonviolent offender; The majority of states have succeeded in reducing prison admissions by diverting nonviolent offenders to drug and other treatment programs and reducing prison terms for low level offenders. A threshold condition for diversion or release is low risk of violent offending. Implicitly these low risk nonviolent offenders are also promoted as criminals who can rehabilitate and reintegrate into the community.  The majority of compassionate release programs either exclude prisoners who were convicted of violent crimes or require that the prisoner be incapacitated to the extent that he or she poses no threat to public safety.  Yet even prisoners who meet these standards are rarely released.

Arguing for cost cutting release of the fast growing legion of elderly prisoners is much less easily buttressed with soothing claims about the happy coincidence of lower costs and public safety.  Even if, and it is big if, exaggerated fear of further predations were successfully addressed, the advocate of cost cutting reform cannot answer demands for retribution without venturing beyond the discourse of the “tough on crime” era.  For thirty years the political class has shunned the previously commonly invoked criminal justice values of second chances -- the redemptive values of rehabilitation, reintegration, and mercy.  The sickest and oldest prisoners are largely beyond second chances for productive citizenship. Whether released or incarcerated their care will be borne by the public purse. Elder care is not free.

This Article focuses on the subclass of old prisoners who are beyond any prospect for productive citizenship because of age and ill health and are in need of elder care.  The argument of this Article is that in order to capture the savings that release (and efficient carceral care) of elderly prisoners would bring, politicians and policy advocates will have to relearn to speak the language of humane criminal justice values, prominently mercy.

April 24, 2013 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, April 23, 2013

Georgia now has permission, but not needed pentobarbital, for executing Warren Hill

The saga surrounding Georgia's efforts to carry out the punishment of death for a Warren Hill, now more than two decades after his second murder, moved forward yesterday after a big split panel ruling by the Eleventh Circuit.  This Atlanta Journal Constitution article, headlined "Court lifts execution stay; state out of lethal-injection drugs," explains the panel ruling, while also highlights why this long-running death penalty drama seems unlikely to end anytime soon:

The federal appeals court in Atlanta has denied Warren Hill’s bid to halt his execution on grounds he is mentally retarded at a time when the state finds itself out of lethal-injection drugs. 

By a 2-1 vote, the 11th U.S. Circuit Court of Appeals said Hill’s mental retardation claims had already been considered and rejected.  The court also said that because Hill only challenged his eligibility for execution, and not his conviction of murder, it could not consider his new claims.

The court lifted its stay of execution, meaning the state can set a new execution date for Hill at anytime.  But the Georgia Department of Corrections is currently out of pentobarbital, a barbiturate used as the state’s sole lethal-injection drug.  “At this time, we are looking into the procurement of the drug,” agency spokeswoman Gwendolyn Hogan said in an email.

Hill’s case attracted international attention this year when three state experts, who previously testified Hill was faking his mental disability, came forward and said they had been mistaken.  The doctors — two psychiatrists and a psychologist — described their evaluations of Hill more than a decade ago as rush jobs and said an improved scientific understanding of mental retardation led them to now believe Hill is mildly mentally retarded.

In 1988, Georgia became the first state to ban executions of the mentally retarded; the U.S. Supreme Court declared the practice unconstitutional nationwide in 2002.

Judge Rosemary Barkett issued a stinging dissent, saying there is now “no question” that Georgia will be executing a mentally retarded man.  She noted that all seven mental health experts — the state’s and Hill’s — who have examined Hill now unanimously agree he is mentally retarded.   “The idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible for a country that not only prides itself on having the quintessential system of justice but attempts to export it to the world as a model of fairness,” she wrote.

Hill’s lawyer, Brian Kammer, said he was “deeply disappointed” that the 11th Circuit “found that procedural barriers prevent them from considering the compelling new evidence.”  He said it is likely he will ask the U.S. Supreme Court to consider Hill’s claims....

Hill was sentenced to death for killing Joseph Handspike, an inmate serving a life sentence in the same state prison where Hill was incarcerated.  In 1990, Hill bludgeoned Handspike to death with a nail-studded wooden board.  At the time, Hill was already serving a life sentence for killing his 18-year-old girlfriend, Myra Wright, by shooting her 11 times in 1986.

The full 69-page split panel ruling in In re Hill,  No. 13-10702 (11th Cir. April 22, 2012), is available at this link.

April 23, 2013 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, April 22, 2013

Does Boston bombing provide still more support for my federal-only death penalty perspective?

As long-time readers know, I like to describe myself a "death-penalty agnostic" concerning the theoretical and empirical arguments that traditionally surround the the criminal punishment of death.  But while I have long been uncertain about the "meta" arguments for and against capital punishment, as a matter of modern US policy and procedures I have a firm and distinctive view: given (1) persistent public/democratic support for death as a possible punishment for the "worst of the worst," and given (2) persistent evidence that states struggle in lots of ways for lots of reasons with the fair and effective administration of capital punishment, I believe that (1+2=3) as a policy and practical matter we ought to consider and embrace an exclusively federal death penalty.

Regular readers have seen and surely remember various prior post in which I have talked through this idea a bit, and I have linked some of these posts below.  But, as the title of this post is meant to highlight, I think the soundness and wisdom of my distinctive view on the best modern way to administer capital punishment in the United States is now on full display in the wake of the Boston bombings. 

Massachusetts, of course, does not have death as an available punishment.  And yet, I have already seen reports of many local and state officials (not to mention Massachusetts citizens) who now say they are open to (if not eager to) have the bombing suspect(s) prosecuted in federal court in part because federal law includes the possibility of the death penalty.  Moreover, there is every reason to view terror bombings like these, whether or not they have direct international connections and implications, as the kinds of crimes that ought to be investigated and prosecuted primarily by national authorities (assisted, of course, by state and local official and agents).

Stated in slightly different terms and with the events in Boston now making these ideas especially salient and timely, I believe that essentially by definition in our modern globally-wired and national-media-saturated American society (1) every potential "worst of the worst" murder is of national (and not just local) concern, and (2) every potential "worst of the worst" murder merits the potential involvement of federal investigators, and (3) federal authorities have constitutional and practical reasons for wanting or needing to be the primary "deciders" concerning the investigation and prosecution of every potential "worst of the worst" murder, and (4) state and local officials typically will welcome being able to "federalize" any potential "worst of the worst" murder, and thus (1+2+3+4=5) we should just make death a punishment only available at the federal level so that the feds know they can and should get involved if (and only when?) federal interests and/or the value of cooperative federalism are implicated by any potential "worst of the worst" murder.

Lots of (mostly older) related posts on the federal death penalty:

UPDATE This new DOJ press release reports on the initial charges brought against the surviving Boston bomber.  Here is how the release starts:

Attorney General Eric Holder announced today that Dzhokhar A. Tsarnaev, 19, a U.S. citizen and resident of Cambridge, Mass., has been charged with using a weapon of mass destruction against persons and property at the Boston Marathon on April 15, 2013, resulting in the death of three people and injuries to more than 200 people.

In a criminal complaint unsealed today in U.S. District Court for the District of Massachusetts, Tsarnaev is specifically charged with one count of using and conspiring to use a weapon of mass destruction (namely, an improvised explosive device or IED) against persons and property within the United States resulting in death, and one count of malicious destruction of property by means of an explosive device resulting in death.   The statutory charges authorize a penalty, upon conviction, of death or imprisonment for life or any term of years.  Tsarnaev had his initial court appearance today from his hospital room.

April 22, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Sunday, April 21, 2013

Sixth Circuit panel finds reasonable 30-day contempt sentence for courtroom cell phone use by observer

The sentencing component of this local Ohio article caught my attention based on the headline "Tweeting and texting earns Cleveland man contempt of court charge, 30 days in jail." Here are the basics:

Cell phones are routinely used in classrooms and bathrooms — sometimes even in churches.  But not in federal courtrooms, where all electronic devices are banned.  But that didn’t stop Maurtez Prince, 22, of Cleveland, from trying to sneak in a few tweets and texts last year during a buddy’s sentencing hearing at the U.S. District Courthouse in Akron.

Prince will be able to contemplate his crime from behind jail bars, where he will spend 30 days for contempt of court.

On May 31, the day of the friend’s sentencing, an assistant U.S. marshal spotted Prince using his cell phone in the courtroom and ordered him to turn it off, according to court documents. Later, the marshal again caught Prince texting and confiscated the phone.

Then, when Prince went to reclaim his phone, the marshal pointed out the three signs outside the courtroom banning cell phones and any cameras or recording devices, the court documents state.  That’s when Prince admitted having photographed his friend with the phone.

When U.S. District Judge John Adams heard about the incident he ordered Prince to appear before him and explain why he shouldn’t be held in contempt.  Prince argued that he had not deliberately defied a court order against cell phones or taking photographs, his lawyer said.  He claimed he hadn’t seen the signs, and had misunderstood the marshal, believing he simply had to silence his phone.  "Mr. Prince was very apologetic to the judge and the marshal for what he did," said Assistant Federal Public Defender Edward Bryan. "He wasn’t cocky at all. It was his first time in federal court and he didn’t understand the seriousness of his actions."

But Adams was not persuaded and found Prince guilty, stating that "the most troubling part" of the crime was that Prince had continued using his phone after he had been ordered to stop.  Adams sentenced Prince to 30 days in jail, but allowed him to remain free pending an appeal.

On Friday, a three-judge panel from the 6th U.S. Circuit Court of Appeals in Cincinnati released a six-page opinion affirming Adams’s sentence. Judge Deborah Cook wrote that Prince demonstrated "willful disobedience" and that "ample evidence supports the district court’s contempt finding."

A sentence of a month in jail for use of a cell phone in a courtroom struck me as quite severe, but the unpublished Sixth Circuit panel opinion in US v. Prince, No. 12-3789 (6th Cir. April 19, 2013) (available here), suggests to me there may be a lot more to the story. Specifically, the panel opinion highlights that Prince has a significant criminal history and that he may have been doing something quite nefarious when seeking to take pictures and send texts during another's federal sentencing proceedings.  In other words, after reading the panel opinion in Prince, I was less troubled by the decision to sentence this defendant to a month in lock-up for his contempt of court.

But I remain curious and uncertain as to whether there are perhaps some First Amendment implications here given that the courtroom Prince was in was not sealed and that sentencings are generally to be public proceedings.  I presume the First Amendment would generally preclude a courtroom spectator from being punished for writing/reporting on-line (say on a blog) about a public federal sentencing while that spectator has moved into the hallways of a public courthouse. Should I just view the courtroom ban/punishment here a proper time, place, manner restriction on the First Amendment, or do others agree there might be some important constitutional issues here?

April 21, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Technocorrections, Who Sentences? | Permalink | Comments (8) | TrackBack

Lots of death penalty headlines in wake of capture of one Boston bomber

Just as has taken place on this blog (via comments to this post), there is now lots and lots of media buzzing about seeking the death penalty for surviving boston bomber Dzhokar Tsarnaev.  Here are some of the headlines and stories from various sources that caught my eye via Google news this morning:

April 21, 2013 in Death Penalty Reforms, Offense Characteristics, Who Sentences? | Permalink | Comments (1) | TrackBack

Do recent California prison reforms demonstrate Plata ruling was a success or a failure?

There was lots of debate, both within the Justices' opinions and in the outside punditry, about whether and why the Supreme Court was wise or foolish to uphold in its 2011 Plata ruling a federal judicial panel's "prisoner release order" based on California's dismal record in running its overcrowded prisons.   Now, nearly two years later, this article from today's New York Times prompts the question in the title of this post.  The article is headlined "California Tries to Regain Fuller Control of Prisons," and here are excerpts:

On the sprawling grounds of the state prison, built here in 1955, a new three-story, $24 million treatment center for mentally ill inmates stands out because of its freshly painted walls and rooftop solar panels.  Inside, on a recent morning, psychologists and social workers were leading group therapy sessions for inmates in large, brightly lighted rooms while individual meetings were being held in smaller offices.

By all accounts, the opening of the new wing in January, as well as that of a crisis center and a housing unit for more troubled inmates in recent years, has improved the quality of mental health care in this prison, known formally as the California Medical Facility.  In the past, the group sessions were held in a housing unit’s common room and left those not participating locked in their cells, unable to socialize or watch television....

California is arguing that the building here, just west of Sacramento, part of the $1.2 billion spent on improving mental health care in the last three years, is an example of why the state should be allowed to regain fuller control over its prisons, the nation’s largest correctional system.  But federal judges recently issued stinging criticisms of the state, denying its bid for greater authority in two related cases and affirming the continuing need for federal overseers to achieve a level of care required by the United States Constitution.

Gov. Jerry Brown, who has been pressing strongly for the end of federal oversight since the beginning of the year, has said that the state will appeal the two decisions. Meanwhile, Mr. Brown and other state officials have been given until early May to submit a plan to further reduce overcrowding in the state prisons or be held in contempt of court....

The judges and lawyers representing inmates said that the improvements had been made only because of federal oversight. “We know they’ve needed treatment space for 20 years,” Michael Bien, a lawyer who has long represented inmates, said of the new building here. “It’s just an example of yes, they did it — great. They did it only under compulsion of the law. It wasn’t voluntary.”

Mr. Bien was involved in a class-action lawsuit regarding mental health care filed by inmates against the state more than two decades ago. In 1995, a federal court appointed a special master to carry out reforms in mental health care, which it found inadequate at the time and in violation of the Constitution. The court ruled this month that the federal overseer was necessary to remedy continuing constitutional violations behind problems like the high suicide rate.

The state is arguing that mental health care meets or exceeds constitutional standards. It is spending $400 million a year on mental health care in its prisons, and a dozen new facilities valued at a total of $1.2 billion have been built in the past three years or are under construction....

A special three-judge federal court also denied the state’s motion to overturn an order to reduce prison overcrowding from its current level of 150 percent of capacity to 137.5 percent by the end of this year.

In 2009, the court found that adequate mental and medical health care could not be delivered because of overcrowding — which reached more than 200 percent in 2006 — and ordered the state to reduce the prison population gradually. The Supreme Court upheld the order in 2011 after the state appealed.

California has already cut its prison population by 25,000 inmates to about 120,000 by sending low-level offenders to county jails in a policy known as realignment. Mr. Beard said that sending 10,000 more inmates to county jails — the number required to reach the court-mandated goal of 137.5 percent of capacity — would overwhelm the counties. Some county officials, forced to release inmates early from increasingly packed jails, have blamed realignment for a rise in break-ins and auto thefts.

Barry Krisberg, a law professor at the University of California, Berkeley, and an expert on California’s prisons who testified in the 2011 Supreme Court case, said it was unlikely the state would succeed in its appeals because of that 2011 ruling. “He can’t win these cases,” Mr. Krisberg said, referring to the governor. “In my view, it’s nearly impossible to go to the same Supreme Court and within a year ask them the same question.”

Instead of looking only to realignment, Mr. Krisberg said, the state must consider the politically difficult option of shortening sentences for good behavior, a policy that previous governors have carried out without an increase in crime. “If they were to restore good-time credits for the people who are doing everything we’re asking of them in prison, they could get these numbers,” he said, referring to the 137.5 percent goal.

April 21, 2013 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, April 20, 2013

"Effective Plea Bargaining Counsel"

The title of this post is the title of this new piece by Jenny Roberts now available via SSRN. Here is the abstract:

Fifty years ago, Clarence Earl Gideon needed an effective trial attorney.  The Supreme Court agreed with Gideon that the Sixth Amendment guaranteed him the right to counsel at trial.  Recently, Galin Frye and Anthony Cooper also needed effective representation. These two men, unlike Gideon, wanted to plead guilty and thus needed effective plea bargaining counsel.  However, their attorneys failed to represent them effectively, and the Supreme Court -- recognizing the reality that ninety-five percent of all convictions follow guilty pleas and not trials -- ruled in favor of Frye and Cooper.

If negotiation is a critical stage in a system that consists almost entirely of bargaining, is there a constitutional right to the effective assistance of plea bargaining counsel?  If so, is it possible to define the contours of such a right?  The concept of a right to an effective bargainer seems radical, yet obvious; fraught with difficulties, yet in urgent need of greater attention.

In this Essay, I argue that the Court’s broad statements in Missouri v. Frye, Lafler v. Cooper and its 2010 decision in Padilla v. Kentucky about the critical role defense counsel plays in plea negotiations strongly support a right to effective plea bargaining counsel.  Any right to effective bargaining should be judged -- as other ineffective assistance claims are judged -- by counsel’s success or failure in following prevailing professional norms. The essay discusses the numerous professional standards that support the notion that defense counsel should act effectively when the prosecution seeks to negotiate and should initiate negotiations when the prosecution fails to do so, if it serves the client’s goals.

The objections to constitutional regulation of plea bargaining include the claims that negotiation is a nuanced art conducted behind closed doors that is difficult to capture in standards and that regulating bargaining will open floodgates to future litigation.  While real, these are manageable challenges that do not outweigh the need to give meaning to the constitutional right to effective counsel.  After all, in a criminal justice system that is largely composed of plea bargains, what is effective assistance of counsel if it does not encompass effectiveness within the plea negotiation process?

April 20, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, April 19, 2013

"How can a member of the US Sentencing Commission promote federalism?"

The question in the title of this post is one astute query by a commentor in response to my recent post here highlighting that Eleventh Circuit Judge William Pryor, whom President Obama nominated to the US Sentencing Commission earlier this week, has written about the need for the federal criminal justice system to be more attentive to federalism concerns.  There are lots of possible answer to this question, but the following passage from the article in the Ohio State Journal of Criminal Law, Federalism and Sentencing Reform in the Post-Blakely/Booker Era, 8 Ohio St. J. Crim. L. 515 (2011), provides an answer in Judge Pryor's own words:

One answer to the current challenges to sentencing reform is to add federalism to our national conversation.  A comprehensive report on sentencing by the U.S. Sentencing Commission, as the Department of Justice suggests, is a good idea, but one of the subjects of the report should be the balance of federal and state power.  The Commission should consider and evaluate to what extent the problems of disparities, complexity, and unpopularity of the post-Booker guidelines are related to the federalization of crime.  The Commission should evaluate to what extent federal prosecutions of certain types occur more frequently in states with failed indeterminate systems and less frequently in states with successful guideline systems.  It should ask to what extent federal judges disrespect guidelines where the underlying crimes are more local in nature and differences of opinion about punishment vary more by region.  It should consider whether sentencing disparities occur under the advisory guidelines either on a regional basis from one district to another or within districts from one judge to another, and should consider what those disparities mean with respect to federalism.  The Commission is in a better position than most institutions to ask what federal sentencing policies and practices tell us about the balance of federal and state powers.

Disappointingly, the US Sentencing Commission's recently released reports about post-Booker sentencing practices and about federal child porn sentencing, despite being massive and dense with data about all sorts of federal sentencing realities, included no focused exploration of the relationship between federal sentencing practices and state and local sentencing developments.  Perhaps if (and I hope when) Judge Pryor is confirmed to join the USSC, he can and will champion an effort to produce follow-up reports focused specifically on these kinds of federalism concerns.

Recent related posts:

April 19, 2013 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, April 18, 2013

Can the new media help identify the two persons the FBI are seeking in the Boston bombings?

Array500The question in the title of this post is prompted by my desire to help the FBI identify and question the two persons appearing in these pictures now posted on the FBI's websiteThis Washington Post article provides background on this latest crime investigation development, as well as the modern challenges posed by modern media:

The FBI on Thursday released photographs of two men said to be suspects in the Boston Marathon bombings that killed three spectators and injured more than 170 other people.

Richard DesLauriers, special agent in charge of the FBI office in Boston, appealed to the public for help in identifying the two men, whom he cautioned should be considered “armed and extremely dangerous.”

Appearing at a news briefing with U.S. Attorney Carmen Ortiz, DesLauriers said the two men, both carrying what appeared to be heavy bags on their backs, walked together through the crowd of spectators. He said the man identified as Suspect No. 2, wearing a white cap, was seen leaving his bag at the site of the second explosion Monday.

“We initially developed a single person of interest,” not knowing whether the man was acting alone or with others, DesLauriers said. The FBI later determined that there was a second suspect, he said.

“Today we are enlisting the public’s help to identify the two suspects,” he said. Photos of the men were displayed on easels set up in the briefing room, and DesLauriers said the images would also be published on the FBI’s Web site.

“Somebody out there” knows who the men are, DesLauriers said, adding: “We consider them to be armed and extremely dangerous.” He warned the public: “No one should approach them.... Do not take any action on your own.” He urged people instead to contact law enforcement....

With the investigation proceeding, President Obama, first lady Michelle Obama and members of the Massachusetts congressional delegation flew to Boston to attend an interfaith prayer service, console victims of the bombings and their relatives and thank medical personnel and first responders....

Wednesday’s whirlpool of reports demonstrated the extraordinary promise and power that new technologies bring to criminal investigations, but also the risk and unreasonable expectations that now permeate such probes. When federal authorities asked the public for help Monday, they received thousands of video clips and still images of the bomb site.

Some people, empowered by smartphones and ever more sophisticated technology, didn’t leave the detective work to the professionals. They joined forces on sites such as Reddit.com to examine crowd pictures, searching for — and then virally distributing — image of backpacks that resembled the shredded bag in photos the FBI released Tuesday.

Black backpacks turn out to be ubiquitous, and when five of them were found in a single photo of the crowd on Boylston Street, the search quickly drew criticism from readers worried that innocent people could be harmed by being identified as suspicious. Others questioned whether black backpacks were even the most important lead, recalling the search for white box trucks that steered investigators astray in the D.C. sniper case a decade ago.

UPDATE As of 10am on Friday morning, April 19, 2013, here is the latest news via this NBC News update, which is right now headlined "Boston on lockdown during marathon manhunt for white-hat suspect":

Suspects-sought-dead-jpg

Boston and its surburbs, universities and transit system were on total lockdown Friday as police hunted for marathon bombing suspect Dzhokhar Tsarnaev -- on the loose after his accomplice brother was killed in a stunning chain of events that left one cop dead and another injured, officials said.

Authorities were confronting a double-edged nightmare: a ruthless killer at large in a densely populated area and a four-mile stretch of road possibly littered with explosive devices tossed from the suspects' getaway vehicle during a wild chase and firefights.

A possible associate of the brothers was also being sought.

Two unidentified people were taken into custody at the Cambridge, Mass., home where Dzhokhar Tsarnaev and his older brother Tamerlan grew up, but they were not being described as additional suspects. Three dozen FBI agents were surrounding the house....

"There is a massive manhunt under way," Massachusetts Gov. Deval Patrick said. "We are asking people to shelter in place." The lockdown initially affected more than 300,000 people in Cambridge, Watertown, Newton, Brighton, Allston and Belmont, but by 8 a.m., the entire city of Boston was paralyzed, officials said.

Watertown, where the second suspect was last seen, was the epicenter of the search. Frightened residents were trapped in their homes as convoys of heavily armed officers and troops arrived by the hour.

Harvard University, Boston University, the Massachusetts Institute of Technology and Emerson University were all closed and students were told to stay inside. Boston public schools were shuttered for the day.

The overnight violence began near MIT about five hours after the FBI released surveillance photos of the two men suspected of planting two bombs near the finish line of Monday's Boston Marathon, killing three and wounding 176.

Tips about the identity of the suspects were still pouring in when the Tsarnaev brothers robbed a 7-Eleven then fatally shot an MIT police officer in his vehicle at 10:20 p.m., law enforcement officials said.

The brothers -- of Chechen origin, but legal permanent residents of the U.S. who moved here a decade ago -- then carjacked a Mercedes SUV, briefly holding the driver captive before letting him go and taking off, sources said.  During a chase between Cambridge and Watertown, the suspects threw explosives out the window, sources said.

April 18, 2013 in Offense Characteristics, Who Sentences? | Permalink | Comments (6) | TrackBack

"Race and the Disappointing Right to Counsel"

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

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

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

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

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

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

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

Recent related posts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Justice Reinvestment in Action: The Delaware Model"

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

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

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

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

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

Some older and more recent related posts:

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

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

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

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

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

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

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

Some related posts about private prisons: 

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

Wednesday, April 17, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Ending Mass Incarceration: Charting a New Justice Reinvestment"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Recent related posts:

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

Tuesday, April 16, 2013

"Conservatives Push Marijuana Reform in Congress"

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

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

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

The three GOP co-sponsors are:

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

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

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

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

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

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

A few recent and older related posts: 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, April 15, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior posts concerning Cameron Douglas's federal sentencings:

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

Interesting coverage of media coverage of crime and prison punishments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, April 14, 2013

Weekend crime and punishment headlines from California

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

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

Saturday, April 13, 2013

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

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

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

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

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

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

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

Friday, April 12, 2013

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

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

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

A few recent and older related posts: 

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