Friday, March 15, 2013

Lots of notable death penalty news and notes from both coasts

The biggest death penalty news to close out this week would appear to be the repeal news out of Maryland,  highlighted by this new AP article headlined, "Md. Poised to Be 18th State to Ban Death Penalty."  But, thanks to links of lots of coverage from How Appealing, here are some other notable capital stories coming from the other end of the country:

March 15, 2013 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, March 14, 2013

Third Circuit panel discusses at length all the problems with SORNA

The start of the Third Circuit panel's lengthy opinion today in US v. Reynolds, No. 08-4747 (3d Cir. Mar. 14, 2013) (available here), explains the current mess that is certain federal sex offender registration laws better than I could. Here goes (with footnotes removed):

This case returns to us after the Supreme Court’s review in Reynolds v. United States, 132 S. Ct. 975 (2012). Remand requires that we reach the merits of Reynolds’s claim that the regulatory rule upon which his indictment was based was promulgated in violation of the Administrative Procedure Act (“APA”).  This claim gives rise to three questions: (1) What is the appropriate standard of review of an agency’s assertion of good cause in waiving the APA’s notice and comment requirements?  (2) Did the Attorney General have good cause to waive these requirements in promulgating a rule governing the retroactivity of the Sex Offender and Registration Notification Act’s (“SORNA”) registration requirements?  (3) If the Attorney General lacked good cause to waive the requirements, was Reynolds prejudiced by the failure to comply with the APA’s notice and comment requirements?

The courts of appeals are divided on each of these questions.  On the first question, the Fifth and Eleventh Circuits have determined that the arbitrary and capricious standard is the appropriate standard for reviewing the Attorney General’s actions, the Fourth and Sixth Circuits have not stated a standard but appear to use de novo review, and the Ninth Circuit has explicitly avoided the question.  On the second question, the Fourth and Eleventh Circuits have held that the Attorney General had good cause to waive notice and comment, while the Fifth, Sixth, and Ninth Circuits have held that he did not.  On the final question, the Fifth Circuit has held that the Attorney General’s lack of good cause does not prejudice defendants, while the Sixth Circuit has held that it is prejudicial.

We conclude that we need not decide the appropriate standard of review today because the Attorney General’s assertion of good cause cannot withstand review even under the most deferential standard available.  We also conclude that the Attorney General’s lack of good cause is prejudicial to Reynolds.  Accordingly, we will vacate Reynolds’ conviction.

March 14, 2013 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

"Rethinking the Use of Community Supervision"

The title of this post is the title of this important new paper now available on SSRN and authored by Cecelia Klingele.  As practitioners and policy-makers know, the back-end of the criminal justice system and the use of alternatives to incarceration are critically important "real world" sentencing issues that only rarely get sustained attention from the legal academy.  I am so pleased that Cecelia Klingele is a leading voice help ensuring these important legal and policy issues get the scholarly attention they need and deserve.  Here is the abstract of her latest work in this regard:

Community supervision, whether in the form of probation or post-release supervision, is ordinarily framed as an alternative to incarceration.  For this reason, legal reformers intent on reducing America's disproportionately high incarceration rates often urge lawmakers to expand the use of community supervision, confident that diverting offenders to the community will significantly reduce over-reliance on incarceration.  Yet, on any given day, a significant percentage of new prisoners arrive at the prison gates not as a result of sentencing for a new crime, but because they have been revoked from probation or parole.  It is therefore fair to say that in many cases community supervision is not an alternative to imprisonment, but only a delayed form of it.

This Article examines the reasons why community supervision so often fails, and challenges popular assumptions about the role community supervision should play in efforts to reduce over-reliance on imprisonment.  While probation and post-release supervision serve important purposes in many cases, they are often imposed on the wrong people, and executed in ways that predictably lead to revocation.  To decrease the overuse of imprisonment, sentencing and correctional practices should therefore limit, rather than expand, the use of community supervision in three important ways.

First, terms of community supervision should be imposed in fewer cases, with alternatives ranging from fines to unconditional discharge to short jail terms imposed instead. Second, conditions of probation and post-release supervision should be imposed sparingly, and only when they directly correspond to a risk of re-offense.  Finally, terms of community supervision should be limited in duration, extending only long enough to facilitate a period of structured re-integration after sentencing or following a term of incarceration.

March 14, 2013 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (22) | TrackBack

As Maryland takes another step toward capital repeal, limbo looms for five on state's death row

03_13a_DeathPenaltyFullVizAs reported in this AP article, the Maryland House "on Wednesday night advanced legislation to repeal the death penalty in Maryland after delegates rejected nearly 20 amendments, mostly from Republicans, aimed at keeping capital punishment for heinous crime." Here is more:

The Senate approved the measure earlier this month. A final House vote on the legislation, a top legislative priority of Democratic Gov. Martin O’Malley, could come as soon as Friday.

Amendments defeated on the House floor would have maintained the death penalty in some cases, including acts of terrorism, for mass murderers, lawbreakers who kill police officers or firemen in the line of duty and for kidnappers who kill.   “We can’t get into the business of this crime is worse than another,” said Delegate Samuel Rosenberg, a Baltimore City Democrat who supports the measure.  “These are terrible cases, but the death penalty is not the way to go.”

With the repeal of the death penalty now nearly a done deal, the next interesting legal and policy question concerns what should become of the five murderers current on Maryland's death row.  That issue is the subject of this lengthy new Stateline article, headlined "Death Row Inmates In Limbo As Maryland Moves to Repeal Death Penalty." Here are excerpts:

After a years-long fight, Maryland is about to become the sixth state in as many years to repeal its death penalty. Gov. Martin O’Malley, who championed the repeal, says he will sign it into law. But the Democrat still faces a tough choice — what to do about the five remaining Maryland inmates on death row? The repeal bill makes no provision for the five men sentenced to death, which even after a repeal of the death penalty could legally still be executed, should they exhaust all of their appeals.

In 2011, Illinois Gov. Pat Quinn, a Democrat, commuted the sentences of all 15 death row inmates before signing a bill repealing the death penalty in his state. New Jersey Gov. Jon Corzine, also a Democrat, did the same for eight death row inmates before signing a death penalty repeal bill in 2007. But governors in Connecticut and New Mexico left their states’ death row inmates subject to the death penalty when they signed their states’ repeal bills.

In Maryland, the governor has virtually unlimited power to pardon or commute sentences, and many death penalty opponents have encouraged O’Malley to simply clear death row if he is morally opposed to the death penalty. The Maryland Senate added an amendment to the repeal bill expressing its will that all death row inmates have their sentences commuted to life in prison without parole. The executive clemency decision, however, is solely up to O’Malley.

O’Malley has three clemency options, says spokesperson Raquel Guillory: He can immediately commute all five death sentences, commute each sentence on a case by case basis, or do nothing. He is not expected to make a decision until after the legislative session ends in April.

O’Malley has been notably reluctant to commute any sentences or grant pardons during his seven-year tenure. He’s only granted 50 pardons out of 690 requests as of last December, according to The Washington Post. And he’s only commuted two sentences, one where an accomplice served three times as long as the shooter, and another where a witness recanted testimony that sent a man to prison for nearly 30 years.

O’Malley’s clemency record is in line with his overall stance of being tough on crime, stemming from his background as a Baltimore prosecutor. The majority of governors have broad, nearly unrestricted clemency power to pardon or commute sentences as they see fit. But few exercise that power regularly.

As Stateline has previously reported, governors contemplating higher office—and O’Malley is contemplating a presidential bid in 2016—have been wary of using their executive clemency powers. Well-publicized missteps by Govs. Michael Dukakis of Massachusetts, Mike Huckabee of Arkansas and Tim Pawlenty of Minnesota allowed their opponents to paint them as soft on crime.

Even though O’Malley’s clemency record is less than generous, his support for the repeal of the death penalty has brought him national attention. He’s not the only governor who’s opposed the death penalty, but he’s made it a central part of his political agenda and sold it as a public safety issue, says Shari Silberstein, executive director of Equal Justice USA, which advocates for the abolition of the death penalty.

“I think his actions are symbolic of changing national conversation surrounding the death penalty,” says Silberstein. “It’s not the third rail of politics anymore, and politicians aren’t going to have to ask themselves if they should take the risk (to oppose the death penalty) because it’s not a risk anymore. Politicians are finding that they’re not being hurt in polls.”...

Legislators in Colorado, Oregon, Kansas and Delaware are currently debating repealing the death penalty, and legislators in Montana gave a hearing to a death penalty repeal bill earlier this session. Colorado Gov. John Hickenlooper, a Democrat, is facing pressure to commute the sentences of two death row inmates nearing execution, and his commitment to the death penalty is wavering....

If O’Malley does not commute the sentences of Maryland’s death row inmates, he’ll be following the examples of Connecticut and New Mexico. But in those states, the remaining death row inmates have filed multiple appeals based on the legislature’s decision that death is no longer an acceptable sentence. The litigation stemming from the confusion could last years and there has been no ruling concerning all remaining death row inmates in either state.

March 14, 2013 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack

Wednesday, March 13, 2013

"Deporting the Pardoned"

The title of this post is the title of this notable paper by Jason Alexis Cade.  As the paper's abstract reveals, this work touches on various issues that ought to be of interest to a various sentencing fans:

Federal immigration laws make noncitizens deportable on the basis of state criminal convictions.  Historically, Congress implemented this scheme in ways that respected the states’ sovereignty over their criminal laws.  As more recent federal laws have been interpreted, however, a state’s decision to pardon, expunge, or otherwise set-aside a conviction under state law will often have no effect on the federal government’s determination to use that conviction as a basis for deportation.  While scholars have shown significant interest in state and local laws regulating immigrants, few have considered the federalism implications of federal rules that ignore a state’s authority to determine the continuing validity of its own convictions.

This Article contends that limitations on the preclusive effect of pardons, expungements, appeals, and similar post-conviction processes undermine sovereign interests in maintaining the integrity of the criminal justice system, calibrating justice, fostering rehabilitation, and deciding where to allocate resources.  In light of the interests at stake, Congress should be required to clearly express its intent to override pardons and related state post-conviction procedures.  A federalism-based clear statement rule for statutory provisions that restrict generally applicable criminal processes would not constrain Congress’s power to set immigration policy, because Congress remains free to make its intent clear in the statute. But the rule would ensure that Congress, rather than an administrative agency, has made the deliberative choice to upset the usual constitutional balance of federal and state power.

March 13, 2013 in Clemency and Pardons, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Does new Eighth Amendment limits on juve sentencing redefine requirements of juve transfer proceedings?

The question in the title of this post, to which I know many folks involved with juvenile justice reform have given thought, is prompted today by some interesting dicta at the end of an interesting Sixth Circuit concurring opinion rejecting an interesting habeas claim of ineffective assistance concerning a lawyers's failure to contest a Tennessee juve's transfer to adult court for a murder prosecution. The ruling in Howell v. Hodge, No. 10-5493 (6th Cir. Mar. 13, 2013) (available here), is mostly focused on habeas realities and Tennessee transfer laws, but these paragraphs at the end of Judge Stranch's concurring opinion out to be of broader interest:
I have recounted the evidence supporting the decision of the juvenile court at length because I believe it is important to clarify what I find problematic about the analysis of the expert reports and testimony.  Clarification is especially important due to the significance of transferring a juvenile to adult court for trial and sentencing, even where a terrible crime such as this one is at issue. The United States Supreme Court’s recent decision in Miller v. Alabama, 132 S. Ct. 2455, 2468 (2012), reviewed the considerations that it found must separate sentencing of adults from that of children, including: a juvenile’s impetuosity and lack of appreciation of risks and consequences; her inability to escape brutal and dysfunctional social or home situations; her incompetencies in dealing with the criminal justice system; and other factors relating to the diminished moral culpability of children.  The differences that make juveniles more susceptible to influence also result in a heightened capacity for change and, therefore, a greater prospect for reform. Id. at 2464-65, 2469.  Thus, in reviewing a decision to transfer a juvenile to adult court — especially one that results, as here, in a sentence of life without parole — Miller teaches that we must always be cognizant of “the great difficulty . . . of distinguishing at this early age between ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’” Id. at 2469 (quoting Roper v. Simmons, 543 U.S. 551, 573 (2005)).  These considerations and concerns are highlighted by the specific holding in Miller — that the Eighth Amendment prohibits states from imposing sentences of “mandatory life without parole for those under the age of 18 at the time of their crimes.” Id. at 2460.
Miller’s holding does not categorically foreclose the sentence of life without the possibility of parole imposed on Howell.   Language in the Court’s opinion, however, highlights my concerns about the analysis necessary when making and reviewing decisions to transfer juveniles to adult court and raises questions regarding the propriety of the sentence of life without the possibility of parole in this case.   The Miller majority observed that the reasoning of Graham v. Florida, 130 S. Ct. 2011 (2010), upon which it relied and which prohibits the imposition of life without the possibility of parole sentences on juvenile offenders for nonhomicide crimes, “implicates any life-without-parole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses.” Miller, 132 S. Ct. at 2465.  The majority also observed that “appropriate occasions for sentencing juveniles to [life without the possibility of parole] will be uncommon.” Id. at 2469. Moreover, in his concurring opinion, Justice Breyer argued that, based on Graham, “the kinds of homicide that can subject a juvenile offender to life without parole must exclude instances where the juvenile himself neither kills nor intends to kill the victim.” Id. at 2475-76.  As here, one of the defendants in Miller was found guilty of felony murder and was not responsible for the killing, and no evidence indicated that he had any intent to kill.  Id. at 2477.  In Justice Breyer’s view, before the State could continue to impose a sentence of life without parole for this defendant, it would first need to determine whether he “kill[ed] or intend[ed] to kill” because, “without such a finding, the Eighth Amendment as interpreted in Graham forbids sentencing [the defendant] to such a sentence, regardless of whether its application is mandatory or discretionary under state law.” Id. at 2475 (internal quotation marks omitted).  Though the scenario posited has parallels to Howell’s situation, Miller is not necessarily dispositive and these issues are not before us today

March 13, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

An effective primer on the federal tax issues facing state marijuana businesses

This notable new Forbes commentary by attorney Robert Wood, headlined "Dude, Can Marijuana Beat The Tax Man?," provides an effective overview of notable new issues raised by the intersection of modern marijuana reform and not-so-modern federal tax laws.   Here are excerpts from this latest piece (with links to some key resources in this area):

Aren’t marijuana growers, dealers and dispensaries just trying to pay their taxes and make a profit like everybody else?  In the staid world of tax law, it can seem downright strange to be worried whether someone has “trafficking” tax problems.  Such is the odd symbiosis between conflicting federal and state laws.

Federal law still outlaws marijuana even in states that legalize it.  Reminiscent of Al Capone, that makes taxes a big problem.... [L]egal dispensaries are still drug traffickers to the feds, so Section 280E of the tax code denies their tax deductions. Intended to prevent tax deductions by drug dealers, it covers medical marijuana too.  The IRS says it must enforce Section 280E no matter what state law says.

Indeed, 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. See Californians Helping to Alleviate Medical Problems Inc. v. Commissioner.

If a dispensary sells marijuana and is in the separate business of care-giving, the care-giving expenses are deductible.  If only 10% of the premises are used to dispense marijuana, most of the rent is deductible.  Good record-keeping is essential.  See Medical Marijuana Dispensaries Persist Despite Tax Obstacles.

Another idea is that Marijuana sellers might operate as nonprofit social welfare organizations.  See 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.

Meanwhile, Congressmen Jared Polis (D-CO) and Earl Blumenauer (D-OR) 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.

March 13, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, March 12, 2013

"'The Judge, He Cast His Robe Aside': Mental Health Courts, Dignity and Due Process"

Bob-dylan-drifters-escape-1968Hard-core Bob Dylan fans will should appreciate the title of this new Michael Perlin article available via SSRN, and all criminal justice fans should appreciate the importance of the substance of this new piece. Here is the abstract:

One of the most important developments in the past two decades in the way that criminal defendants with mental disabilities are treated in the criminal process has been the creation and the expansion of mental health courts, one kind of “problem-solving court.” There are now over 300 such courts in operation in the United States, some dealing solely with misdemeanors, some solely with non-violent offenders, and some with no such restrictions. There is a wide range of dispositional alternatives available to judges in these cases, and an even wider range of judicial attitudes. And the entire concept of “mental health courts” is certainly not without controversy.

These courts offer a new approach – perhaps a radically new approach – to the problems at hand. They become even more significant because of their articulated focus on dignity, as well as their embrace of therapeutic jurisprudence, their focus on procedural justice, and their use of the principles of restorative justice. It is time to restructure the dialogue about mental health courts and to begin to take seriously the potential ameliorative impact of such courts on the ultimate disposition of all cases involving criminal defendants with mental disabilities.

There has been much written about these courts, but little attention has been paid to two issues that must be considered seriously: the quality of counsel available to persons in mental health courts, and the question of whether the individual is competent to engage in mental health court proceedings. These are both discussed extensively in this paper.

Much of the recent debate on mental health courts has focused either on empirical studies of recidivism or on theorization. This entire discussion, while important and helpful, bypasses the critical issue that is at the heart of this paper: do such courts provide additional dignity to the criminal justice process or do they detract from that? Until we re-focus our sights on this issue, much of the discourse on this topic remains wholly irrelevant.

In Part I of this paper, I will first discuss the underpinnings of therapeutic jurisprudence. I will next, in Part II, look at the structure of mental health courts, and will then raise the two concerns about such courts that are, I believe, of particular relevance to which I just alluded: questions of adequacy of counsel and the competency of defendants to voluntarily participate in such court proceedings. In Part III, I will then consider the role of dignity in this process, and look to ways that therapeutic jurisprudence can promote dignity in this context.

March 12, 2013 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

In Eighth Circuit, US Attorney says Miller is "substantive" and so should be applied retroactively

A helpful reader sent me this week a copy of a notable filing from a federal 2255 action in Johnson v. US, No. 12-3744, involving a federal defendant seeking resentencing based on the Supreme Court's Miller decision concerning the unconstitutionality of mandatory LWOP for juvenile offenders. The filing is notable because the feds concede that Miller can and should be given retroactive effect because, in the government's view, Miller announced a new rule that is "substantive."  Here is how the lengthy filing, which can be downloaded below, gets started:

The United States of America, by and through its attorneys, B. Todd Jones, United States Attorney for the District of Minnesota, and Jeffrey S. Paulsen, Assistant United States Attorney, submits this memorandum in response to petitioner Kamil Hakeem Johnson’s November 16, 2012, Motion Pursuant to Title 28 U.S.C. § 2244, Requesting Authorization To File a Second or Successive 28 U.S.C. § 2255 To The District Court (“Application”).

Johnson, who was a juvenile at the time of his 1996 offense, seeks authorization to file a second motion under Section 2255 to challenge the constitutionality of his mandatory life-without-parole sentence.  In Miller v. Alabama, 132 S. Ct. 2455, 2460 (2012), the Supreme Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”  Although the Court had earlier held that a lifewithout- parole sentence for a non-homicide offense committed by a juvenile is always unconstitutional, see Graham v. Florida, 130 S. Ct. 2011 (2010), Miller did not bar such a sentence for a homicide committed before the age of 18.  132 S. Ct. at 2469. But under Miller, the sentencer for such a juvenile offense must have “discretion to impose a different punishment.” Id. at 2460.

Johnson’s mandatory life sentence is therefore constitutionally flawed.  This Court may certify a second or successive Section 2255 motion where, as relevant here, the application makes a prima facie showing that it relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court,” 28 U.S.C. § 2255(h)(2).  Because the United States agrees that Johnson’s reliance on Miller makes such a prima facie showing, his motion should be granted and the case certified for filing in the district court.

Download USA Miller 2255 Response

March 12, 2013 in Assessing Miller and its aftermath, Irizarry SCOTUS case, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, March 11, 2013

"How the Sequester Threatens the U.S. Legal System"

The title of this post is the headline of this lengthy new piece authored by Andrew Cohen for The Atlantic.  Here is how it starts and ends:

When the chief justice of the United States and the chief judges of each of the federal circuits gavel down the semi-annual meeting of the Judicial Conference of the United States on Tuesday, they will have on their agenda an unusual item: the alarming impact of the funding "sequester" on the nation's federal court system.  The world won't end if students are denied the chance to tour the White House.  It will not end if our National Parks open days late this spring.  But citizens everywhere will see vital legal rights denied or delayed by the forced budget cuts.

All of the constituencies of the judiciary agree on this issue.  Federal trial judges are quietly seething at the inability of the legislative and executive branches to avoid sequester.  Federal public defenders, whose budgets have been cut twice in two months, are furloughing and laying off staff.  The attorney general of the United States has expressed grave concern on behalf of prosecutors and federal law enforcement officials. And court administrators are expressing alarm over the effect of the cuts upon federal judicial services.

At the core of the problem is the fact that the judicial branch is financially beholden to the other two branches of government.  This separation of powers was designed by our nation's founders to limit the judiciary's independence, and it has, and nowhere is this dynamic more visible than when a chief justice like John Roberts has to grovel for funding or otherwise justify the judiciary's minuscule portion of the budget.  If the sequester isn't unconstitutional per se, it is causing an unconstitutional effect upon the swift, fair and equal administration of justice....

Beyond a reasonable doubt, the sequester is having a profound and pernicious effect on the government's ability to observe its constitutional commands -- and to provide justice to its citizens.  That's why the members of the Judicial Conference have a difficult and delicate task this week.  The judges and administrators must adequately express the scope of their concern, and effectively explain the impact the sequester will have on the judiciary, without offending the very politicians who control the federal judiciary's budget. It's not right.  It's not fair.  It's a terrible testament to judicial independence.  But sadly it's the way the politics of law works in America today.

Recent related posts:

March 11, 2013 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Will Maryland voters even get a chance to reconsider repeal of state's death penalty?

One reason I have been following closely the march in Maryland toward repeal of the state's death penalty has been because Maryland has a well-established process for voter referendum as a means to create a populist veto of any law passed by the state's legislature.  If Maryland's legislature repeals its death penalty and then there is a subsequent referendum on that repeal, the state-wide campaign for such ballot initiative would likely be quite interesting and the the vote outcome would likely be quite uncertain.  But this new local article, headlined "Death penalty repeal may not be petitioned onto ballot," suggests that Maryland voters might not even get a chance to vote in a referendum after death penalty repeal in the state. Here is why:

Del. Neil C. Parrott, chairman of petition website MDPetitions.com, said petitioning Gov. Martin O’Malley’s death penalty repeal to the 2014 general election ballot isn’t a foregone conclusion. That’s even though some opponents of the repeal, including Senate President Thomas V. Mike Miller Jr., D-Calvert, have said they think a referendum vote likely.

But “there’s no talk about” such a petition drive at the grass-roots, Parrott said. “It’s probably not going to be petitioned.” Parrott indicated he’s more interested in leading a petition drive against House Bill 493, the Referendum Integrity Act — a measure he believes could choke off future referendums if it passes.

The Washington County Republican led petition drives that placed on the 2012 ballot three measures passed by the General Assembly: legalizing same-sex marriage, in-state tuition for some illegal immigrants, and the state’s congressional redistricting plan. All three challenges failed.

Parrott said a drive to overturn the death penalty repeal would involve a long, difficult campaign all the way up to the 2014 election. And such efforts take money — something MDPetitions.com is “not very flush with,” Parrott said. “There’s going to be serious consideration whether we do one or not, because it is so difficult,” he said....

Parrott’s MDPetitions.com website makes it easier for people to generate signatures that match the way their names are rendered on the state’s voter rolls, so that they can’t be invalidated by elections officials. Before the website, only one referendum to overturn a state law made it onto the ballot in 20 years, a 1992 attempt to overturn Maryland’s abortion law. That attempt failed....

Parrott said O’Malley has introduced several “radical” measures — one of which, he said, is the death penalty repeal, Senate Bill 276. That bill has passed in the Senate. On Friday, the bill made it through a House committee. It is expected to pass in the full chamber. “Honestly, I hope (death penalty repeal) stops in the House,” Parrott said. “At this point, we’re just looking to see what happens.”

O’Malley said that even if the death penalty repeal goes to referendum, the voters will ultimately uphold it. “The people of our state want us to do the things that work and that actually reduce crime,” he said.

Recent related posts:

March 11, 2013 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (9) | TrackBack

Split Eighth Circuit panel weighs in on child porn restitutution issues

A few weeks ago, as reported in this post, the Sixth Circuit in US v. Gamble ended any betting on how that court was going to sort through the circuit-splitting issues concerning awards of restitution in child porn downloading cases.  Today, the majority of an Eighth Circuit panel in US v. Fast, No. 12-2752 (8th Cir. Mar. 11, 2103) (available here), was quick to adopt the majority approach to these issues (hat tip to How Appealing), via an opinion that gets started this way:

Robert M. Fast pled guilty to one count of receiving and distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2). The district court ordered him to pay $3,333 restitution to Vicky — the pseudonym for the child-pornography victim whose images were on Fast’s computer — under 18 U.S.C. § 2259. Vicky challenges the restitution award by direct appeal and in a petition for mandamus.  She argues that Fast need not proximately cause the losses defined in subsections 2259(b)(3)(A) through (E) to be liable for them, and that the district court misinterpreted the “full amount of [her] losses” under section 2259(b)(1).  Because she lacks standing as a nonparty to bring a direct appeal, this court grants the motions to dismiss by Fast and the government.  Having jurisdiction over her mandamus petition under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771(d)(3), this court denies her petition.  

Judge Shepherd authors an extended dissent, which gets started this way:

I concur with respect to sections I, II, and III of the majority’s opinion. I dissent with respect to sections IV and V, and with respect to the judgment, because I would follow the Fifth Circuit’s approach and hold that only damages awarded under 18 U.S.C. § 2259(b)(3)(F) are subject to a proximate cause requirement. See In re Amy Unknown, 701 F.3d 749, 752 (5th Cir. 2012) (en banc).  Consequently, I would grant Vicky’s petition for mandamus relief and remand for the district court to recalculate her losses.

As I have noted before (and likely will have an opportunity to mention again in the future), it seems only a matter of time before the Supreme Court will feel it has to take up these issues in some manner.

A few more recent and some older related federal child porn restitution posts:

March 11, 2013 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

"The Right to Counsel: Badly Battered at 50" (at a great moment for hope and change)

10EDITORIALSUB-articleLargeThe title of this post is drawn in part from the headline of this notable commentary by Lincoln Caplan, which appeared in yesterday's New York Times.  Here are excerpts (with a final key point stressed by me below):

A half-century ago, the Supreme Court ruled that anyone too poor to hire a lawyer must be provided one free in any criminal case involving a felony charge.  The holding in Gideon v. Wainwright enlarged the Constitution’s safeguards of liberty and equality, finding the right to counsel “fundamental.”  The goal was “fair trials before impartial tribunals in which every defendant stands equal before the law.”

This principle has been expanded to cover other circumstances as well: misdemeanor cases where the defendant could be jailed, a defendant’s first appeal from a conviction and proceedings against a juvenile for delinquency.

While the constitutional commitment is generally met in federal courts, it is a different story in state courts, which handle about 95 percent of America’s criminal cases.  This matters because, by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers and have to depend on court-appointed counsel.

Even the best-run state programs lack enough money to provide competent lawyers for all indigent defendants who need them.  Florida set up public defender offices when Gideon was decided, and the Miami office was a standout.  But as demand has outpaced financing, caseloads for Miami defenders have grown to 500 felonies a year, though the American Bar Association guidelines say caseloads should not exceed 150 felonies.

Only 24 states have statewide public defender systems. Others flout their constitutional obligations by pushing the problem onto cash-strapped counties or local judicial districts.

Lack of financing isn’t the only problem, either. Contempt for poor defendants is too often the norm.  In Kentucky, 68 percent of poor people accused of misdemeanors appear in court hearings without lawyers.  In 21 counties in Florida in 2010, 70 percent of misdemeanor defendants pleaded guilty or no contest — at arraignments that averaged less than three minutes....

The powerlessness of poor defendants is becoming even more evident under harsh sentencing schemes created in the past few decades.  They give prosecutors, who have huge discretion, a strong threat to use, and have led to almost 94 percent of all state criminal cases being settled in plea bargains — often because of weak defense lawyers who fail to push back....

After 50 years, the promise of Gideon v. Wainwright is mocked more often than fulfilled. In a forthcoming issue of the Yale Law Journal, Stephen Bright, president of the Southern Center for Human Rights in Georgia, and Sia Sanneh, a lawyer with the Equal Justice Initiative in Alabama, recommend [in an article available here] that all states have statewide public defender systems that train and supervise their lawyers, limit their workloads and have specialized teams in, for example, death-penalty cases. 

There is no shortage of lawyers to do this work.  What stands in the way is an undemocratic, deep-seated lack of political will.

I have stressed the penultimate sentence in this commentary because readers with any connection to law schools and on-going debates over legal education reform know well the modern concerns and problems caused by the graduation of so many lawyers with large debt load while there are, apparently, not enough viable jobs in the marketplace to employ all the debt-saddled new lawyers.  This commentary provides a ready reminder that there are ample legal needs going unaddressed and unresolved even while there are ample new lawyers looking for jobs and struggling to deal with their education debt. 

Leaders involved with legal-eduction reform and involved with right-to-counsel reform need to get together ASAP to try to fix two big problems with one solution.  Problematically, if the private marketplace could readily engineer a solution to the problems of inadequate counsel for indigent defendants, these matters would likely not even be a modern concern.  But, because of market failings and limitations, these problems need a government solution; the federal government would seem to be the right source for a solution given that the federal government has been giving out the guaranteed student loans that helped produce a glut of debt-saddled new lawyers (which the private legal marketplace now does not want). 

In another setting a few years ago, I talked up here the notion of a "Lawyer Peace Corps" or "Lawyering for America" to do good while helping new law grads to better. The 50th Anniversary of the Gideon decision would seem to be an ideal moment to get such programming off the ground.

Cross-posted at PrawfsBlawg (where I will be guest blogging a bit the next few weeks).

March 11, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Sunday, March 10, 2013

Fascinating fight over death penalty realities and clemency rights gets to Oregon Supreme Court

As reported in this new local article, headlined "Oregon Supreme Court to hear Haugen death penalty case," this top court in Oregon is due to hear arguments this week in a very interesting case concerning both clemency rights and application of the death penalty. Here are the basics:

The next step in Gary Haugen’s request to be executed is up to the Oregon Supreme Court. When the seven justices hear oral arguments Thursday, they will consider only whether the twice-convicted murderer can legally reject an unconditional reprieve issued by Gov. John Kitzhaber on Nov. 22, 2011. Kitzhaber’s action blocked the execution two weeks before it was scheduled to take place.

Haugen won the first round Aug. 3 in Marion County Circuit Court, where visiting Judge Timothy Alexander ruled that Haugen could refuse the reprieve. The Supreme Court accepted Kitzhaber’s appeal directly.

In written arguments filed with the court, Kitzhaber said Haugen has no legal right to reject a reprieve based on three main reasons: the text of the Oregon Constitution; the historical circumstances of clemency; and previous court decisions about the governor’s clemency powers.

Haugen argued through his lawyer that Kitzhaber’s action was not a true reprieve, previous court decisions support his right to refuse it, and a reprieve deprives him of federal constitutional rights such as a ban on cruel and unusual punishment.

The newspaper account of this upcoming argument provides a brief review of the parties' arguments, as well as links to some brief. Included therein is a brief with a link to a filing by the ACLU. Upon seeing the link, I was unsure which side the ACLU should and would support, given my understanding that the ACLU opposes the death penalty but also supports a person's right to die. I will leave it to readers to guess (or figure out) which commitment proved more important to the ACLU in this notable setting.

March 10, 2013 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

"Neighborhoods Seek to Banish Sex Offenders by Building Parks"

The title of this post is the headline of this notable new article in today's New York Times.  Here are snippets:

Parents who pick up their children at the bus stop in this city’s Harbor Gateway neighborhood say they often see men wearing GPS ankle bracelets and tell their children to stay away.  Just up the street, 30 paroled sex offenders live in a single apartment building, including rapists and child molesters. More than 100 registered sex offenders live within a few miles.

So local residents and city officials developed a plan to force convicted sex offenders to leave their neighborhood: open a tiny park.

Parents here, where state law prohibits registered sex offenders from living within 2,000 feet of a school or a public park, are not the only ones seizing on this approach. From the metropolis of Miami to the small town of Sapulpa, Okla., communities are building pocket parks, sometimes so small that they have barely enough room for a swing set, to drive out sex offenders.  One playground installation company in Houston has even advertised its services to homeowners associations as an option for keeping sex offenders away.

Within the next several months, one of Los Angeles’s smallest parks will open here in Harbor Gateway, on a patch of grass less than 1,000 square feet at the corner of a busy intersection.  But even if no child ever uses its jungle gym, the park will serve its intended purpose.  “Regardless of whether it’s the largest park or the smallest, we’re putting in a park to send a message that we don’t want a high concentration of sex offenders in this community,” said Joe Buscaino, a former Los Angeles police officer who now represents the area on the City Council.

While the pocket parks springing up around the country offer a sense of security to residents, they will probably leave more convicted sex offenders homeless. And research shows that once sex offenders lose stable housing, they become not only harder to track but also more likely to commit another crime, according to state officials involved with managing such offenders.

“Putting in parks doesn’t just break up clusters — it makes it impossible for sex offenders to find housing in the whole city,” said Janet Neeley, a member of the California Sex Offender Management Board.  “It’s counterproductive to public safety, because when you have nothing to lose, you are much more likely to commit a crime than when you are rebuilding your life.”

Restrictions on where sex offenders can live, which have been passed in most states, have already rendered most residential areas in many cities off limits.   The number of homeless sex offenders in California has increased threefold since 2006, when the latest residency restrictions were passed, and a third of sex offenders on parole are now homeless, according to reports from the Sex Offender Management Board....

Mr. Buscaino said he supported housing for sex offenders, but said the pocket park would improve the quality of life in Harbor Gateway. “Let’s house them, absolutely, but not in a high-population area like this one,” he said.

Many of the sex offenders who live near Harbor Gateway have been placed there with the help of parole officers, precisely so they would not end up on the street.  The landlord of some nearby apartments where dozens of sex offenders on parole live, who spoke on the condition of anonymity for fear of retaliation, said that keeping paroled sex offenders together in transitional housing actually kept the community safer because it places controls on them even after they leave prison....

In some urban areas, however, there is already nowhere left for sex offenders to legally live.  In Miami, dozens of convicted sex offenders camped under a bridge, unable to find any other shelter, until the encampment was broken up several years ago.  Another camp in Miami, where a dozen offenders slept on the sidewalk, was dispersed last year when Marc Sarnoff, a city commissioner, had three pocket parks built in the neighborhood.

Mr. Sarnoff said he did not know where the offenders ended up.  “There has to be a strategy in place so they don’t just live on the sidewalk,” Mr. Sarnoff said.  “We need more resources in place so these guys don’t reoffend. But that’s beyond the city’s resources.  It has to be at the state level.”

March 10, 2013 in Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (25) | TrackBack

Upcoming symposium at Gerogetown on "Reducing Corporate Criminality"

I was so very pleased that my post here about the fantastic Missouri Law Review symposium in which I participated this past Friday prompted a member of the American Criminal Law Review at Georgetown University Law Center to send me news of another exciting (and free) criminal justice symposium taking place in DC this coming week. Here is the heart of the note about this symposium sent my way:

Your readers may be interested in our symposium next week: "Reducing Corporate Criminality: Evaluating Department of Justice Policy on the Prosecution of Business Organizations and Options for Reform."

Though our symposium is not specifically about sentencing issues, it is likely to be highly relevant to your readership in both public interest and white collar defense practices.  Our goal is to focus on issues facing current practitioners in addition to the traditional theoretical debates found in law reviews.  The symposium on March 15, 2013 will include four panels centered on (1) the evolution of DOJ guidelines on prosecuting business organizations; (2) a presentation on empirical evidence of trends in wrongdoing within business organizations; (3) suggested reforms to DOJ policy governing corporate prosecution; and (4) the effects of DOJ policy on the regulated entities.

More information (including the schedule of these panels and the terrific line-up of speakers) can be found here at this link.

As this post is intended to highlight, I am always eager to note and promote any and all criminal justice events that might be of interest to sentencing fans.  Consequently, as my schedule and energy permits, I will post news of any such event if details are sent my way.  And, when folks fo an effective job of providing me with blog-friendly, cut-and-paste-ready text about the event, it will often be much easier for my schedule and energy to facilitate posting and promotion.

March 10, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, March 09, 2013

"The Conservative Case Against More Prisons"

Mar-apr-cover-archiveThe title of this post is the headline of this lengthy new piece authored by Vikrant Reddy and Marc Levin, senior policy advisers to the Right on Crime campaign, and now appearing in The American Conservative. Here is how it starts:

Since the 1980s, the United States has built prisons at a furious pace, and America now has the highest incarceration rate in the developed world. 716 out of every 100,000 Americans are behind bars. By comparison, in England and Wales, only 149 out of every 100,000 people are incarcerated. In Australia — famously founded as a prison colony — the number is 130. In Canada, the number is 114.

Prisons, of course, are necessary.  In The Scarlet Letter, Nathaniel Hawthorne observed that “The founders of a new colony, whatever Utopia of human virtue and happiness they might originally project, have invariably recognized it among their earliest practical necessities to allot a portion of the virgin soil… as the site of a prison.”  As long as there are people, there will be conflict and crime, and there will be prisons.  Prisons, however, are not a source of pride.  An unusually high number of prison cells signals a society with too much crime, too much punishment, or both.

There are other ways to hold offenders — particularly nonviolent ones — accountable. These alternatives when properly implemented can lead to greater public safety and increase the likelihood that victims of crime will receive restitution.  The alternatives are also less costly.  Prisons are expensive (in some states, the cost of incarcerating an inmate for one year approaches $60,000), and just as policymakers should scrutinize government expenditures on social programs and demand accountability, they should do the same when it comes to prison spending.  None of this means making excuses for criminal behavior; it simply means “thinking outside the cell” when it comes to punishment and accountability.

This argument is increasingly made by prominent conservatives.  Bill Bennett, Jeb Bush, Newt Gingrich, Ed Meese, and Grover Norquist have all signed the Statement of Principles of Right On Crime, a campaign that advocates a position on criminal justice that is more rooted in limited-government principles.  They are joined as signatories by the conservative criminologist John Dilulio and by George Kelling, who helped usher in New York City’s successful data-driven policing efforts under Mayor Rudolph Giuliani.  Some groups, like Prison Fellowship Ministries, approach the issue from a socially conservative perspective.  Others, like the American Legislative Exchange Council and the State Policy Network, have fiscal concerns top of mind.  Regardless, a sea change is underway in sentencing and corrections policy, and conservatives are leading it.

March 9, 2013 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (11) | TrackBack

Friday, March 08, 2013

Smarter Sequestration: simple statutory ways to save prison monies (and avoid federal furloughs?)

I have been talking to a variety of federal criminal justice folks since sequestration became official on March 1, 2013, and there has been much buzz about possible furloughs.  And in his Senate testimony Wednesday, AG Eric Holder closed with this ominous comments about the impact of sequestration:

[C]uts are already having a significant negative impact not just on Department employees, but on programs that could directly impact the safety of Americans across the country. Important law enforcement and litigation programs are being disrupted.  Our capacity — to respond to crimes, investigate wrongdoing, and hold criminals accountable — has been reduced. And, despite our best efforts to limit the impact of sequestration, unless Congress quickly passes a balanced deficit reduction plan, the effects of these cuts — on our entire justice system, and on the American people — may be profound.

But, as my post title suggests, I think we could and should improve the administration of justice and save money if DOJ and BOP and others would use existing statutory mechanisms to reduce federal prison populations and costs.  FPD Steve Sady recently reminded me that, a year ago, the federal defenders, drawing from data gathered by the Government Accountability Office, provided a simple roadmap of action that could and should be taken now to reduce excessive sentencing practices which is could save hundreds of millions of dollars just by better implementing certain "smart sentencing" statutes.

The title of the federal defender report, which is available here, sets the tone: "GAO Report Reveals Multiple Ways To End The Waste Of Millions On Unnecessary Over-Incarceration." The full report is a dense account of BOP policies that lead to longer periods of incarceration than necessary to accomplish sentencing goals; the key recommendations suggest we could achieve large savings simply by providing some relief to the least dangerous and most deserving of federal prisoners. This executive summary from the report makes these essentials clear:

First, the GAO identified three statutory programs that, if fully implemented, would save taxpayer dollars that are now being wasted on unnecessary incarceration:

• The BOP underutilizes the residential drug abuse program (RDAP) incentive for nonviolent offenders. If inmates had received the full 12-month reduction from 2009 to 2011, the BOP would have saved up to $144 million. Much more would be saved if all statutorily eligible prisoners were allowed to participate.

• The BOP underutilizes available community corrections so that inmates serve an average of only 4 months of the available 12 months authorized by the Second Chance Act. Just by increasing home confinement by three months, the BOP could save up to $111.4 million each year.

• The BOP underutilizes available sentence modification authority for “extraordinary and compelling reasons,” depriving sentencing judges of the opportunity to reduce over-incarceration of deserving prisoners whose continued imprisonment involves some of the highest prison costs.

Second, the GAO confirmed that amending the good time credit statute to require that inmates serve no more than 85% of the sentence would better calibrate actual time served with the assumptions underlying the sentencing guidelines consulted at sentencing. Both the Department of Justice and the BOP favor the amendment. After the release of about 3,900 inmates in the first fiscal year, the BOP would continue to save about $40 million a year once the amendment was enacted.

Third, the GAO identifies cost savings that the BOP could realize simply by using available rules for executing and calculating sentences. For example, the BOP unilaterally abolished the shock incarceration program, spending unnecessary millions by replacing sentence reductions and increased home detention with prison time for nonviolent offenders with minimal criminal history. The BOP also fails to treat defendants’ time in immigration custody as “official detention,” an unnecessary policy that increases custody costs by creating dead time. The BOP should act immediately to end these and other unnecessary and wasteful policies.

March 8, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23) | TrackBack

Is Miller an Eighth Amendment "bombshell or baby step"?

New-law-review-symposium13-large-bannerI have the honor and pleasure of participating today in a fantastic Missouri Law Review symposium which is to explore the question in the title of this post.  This webpage details today's schedule of panels and speakers, and this page reports on these essentials of today's event:

This year's Missouri Law Review Symposium will focus on constitutional, practical and policy matters, regarding juveniles and sentencing more generally, that now challenge courts, legislatures and attorneys in the opinion's wake. 

On the constitutional front, in what ways are adult offenders who are subject to mandatory sentencing schemes asking lower courts to extend Miller, and how are those courts replying?  The Miller opinion extends the Court's "death is different" doctrine to mandatory life-without-parole sentences for juveniles: should that doctrine, requiring individualized sentencing, apply in other contexts?  How are state legislatures and Congress responding — and how should they respond — in designing sentencing procedures for juvenile homicide offenders?  What special challenges will attorneys face when representing a juvenile in a life-without-parole sentencing trial?  Morally, to what extent, if any, do recent discoveries in developmental psychology and neuroscience shed normative light for courts and legislatures on juvenile offenders.

Judge Nancy Gertner, Professor of Practice at Harvard Law School, will deliver the keynote address.  She will be joined by eminent attorneys, inside and outside the academy, to explore these and other important questions regarding criminal sentencing in general and juvenile sentencing in particular.

March 8, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, March 07, 2013

Is a "model" medical marijuana law been concocted in the laboratory of Illinois?

As all good law geeks know, in a renowned dissent in New State Ice, Justice Louis Brandies famously observed that "one of the happy incidents of the federal system [is] that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."   This laboratory metaphor seems especially apt for what we see going on with marijuana reform in so many states; I especially like the notion that different states can and will refine their on-going social and economic marijuana experiments after seeing what works and does not work in other locales.

With that (social) science background, I found especially interesting this new local story from Illinois, which is headlined "House committee endorses medical marijuana pilot project."   Here is how the piece starts:

An Illinois House committee on Wednesday endorsed a proposed four-year pilot project to legalize medicinal use of marijuana.  State Rep. Louis Lang, D-Skokie, said if the project is approved, it would be the toughest medical marijuana law in the nation.  Currently, 18 states and the District of Columbia have laws permitting medical use of marijuana.

Lang, who is sponsoring the current version, said a similar measure that he unsuccessfully proposed last year outlined the toughest regulations ever written on the subject, and this year’s proposal “goes many steps further.”

“This is clearly model legislation for the country, if we were to pass it,” Lang said.

The proposal would allow patients diagnosed with specific conditions — such as cancer, multiple sclerosis and HIV — to get a special ID card allowing them to buy limited amounts of medical marijuana from state-licensed dispensaries.

Patients and caregivers would have to buy marijuana from one of 66 state-licensed dispensaries, which would get the marijuana from one of 22 state-licensed growers. “The bill will allow very sick people to get a product that they need to feel better,” Lang said. “Their quality of life is at stake.”

Given that two states have now already legalized small quantities of marijuana for recreational uses and they only a few states have been eager to embrace very tough regulations for medical marijuana, I am not sure State Rep. Lang should be so confident that the legislation he has proposed is likely to be embraced by lots of other states.  That said, if (and when?) there is a move in Congress to start to back away from federal pot prohibition, perhaps those states which experiment with the toughest medical marijuana laws will end up getting a special gold star for their laboratory reports.

March 7, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

DOJ agrees with US Sentencing Commission that child porn guidelines are badly broken

Thanks to a helpful reader, I have learned that earlier this week a representative of the US Department of Justice sent a lengthy and detailed letter to the US Sentencing Commission concerning its recent huge child pornography federal sentencing report (basics here and here).  Disappointingly, as of this writing, I cannot seem to find a copy of this important and interesting letter on the website of either the DOJ or the USSC.   ButI have a pdf copy of the letter, which is dated March 5, 2013, and I have posted the full 7-page letter below.

The lengthy letter needs to be read in full by any and everyone concerning with federal child porn sentencing dynamics.  And these sentences from the first page highlights that DOJ agrees with the USSC's basic conclusion that the current child porn federal sentencing guidelines are badly broken:

[T]he Department agrees with the Commission's conclusion that advancements in technologies and the evolution of the child pornography "market" have led to a significantly changed landscape -- one that is no longer adequately represented by the existing sentencing guidelines.  Specifically, we agree with the Report's conclusion that the existing Specific Offense Characteristics ("SOCs") in USSG § 2G2.2 may not accurately reflect the seriousness of an offender's conduct, nor fairly account for differing degrees of offender dangerousness.  The current guidelines can at times under-represent and at times over-represent the seriousness of an offender's conduct and the danger an offender possesses.

Download DOJ letter to USSC on CP report

As I suggested in this recent post, now that the US Sentencing Commission has said that the current federal guidelines for child pornography are broken, it not longer seems proper for these guidelines to be given much weight and it seems plainly improper for within-guideline CP sentences to still carry a presumption of reasonableness on appeal. Now that the Justice Department has officially stated that it agrees with the USSC's position on these guidelines, I wonder if federal prosecutors will not be not merely authorized, but actually required, to agree with the common defense arguments in CP cases that the current guidelines should be afforded little or no weight in the broader 3553(a) analysis.

Indeed, in light of this DOJ letter, which details the many ways ways in which the current CP guidelines are broken, perhaps circuit courts should begin to adopt a blanket presumption of unreasonableness for any and every within-guideline child porn sentence. (Of course, that presumption could be rebutted if and when a district judge were to explain how other 3553(a) factors justified a within-guideline sentence in a child porn case. But, in light of what the USSC and DOJ are saying about the flaws of the current CP guideline, it would seem only logical now to view any within-guideline child porn sentence as presumptively flawed rather than presumptively sound.)

Recent related posts:

March 7, 2013 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

"Medical marijuana businesses see opportunity in Mass."

Follow MoneyOne need not remember this classic scene from a classic political movie to know that one of the best ways to understand and predict human behavior (of politicians and others) is to "follow the money."  This fascinating new Boston Globe article, with the headline that is quoted in the title of this post, has me thinking about these realities and the many ways in which they seem sure to impact our nation's quickly evolving perspectives on marijuana use and distribution.  Here are excerpts from the article:

Kayvan Khalatbari rings up more than $1 million in annual sales at Denver Relief, the medical marijuana dispensary he runs out of a downtown storefront, and business keeps getting better.

But rather than opening an additional store, Khalatbari, 29, is expanding in a different direction: He has been devoting more time to doing lucrative consulting work for about 15 fledgling cannabis entrepreneurs who are interested in setting up shop in Massachusetts.

Denver Relief is one of several companies in Colorado — the epicenter of the nation’s medical marijuana industry — eager to capitalize on the expected “green rush” as Massachusetts’ medical marijuana program gets off the ground this year.

There is lots of money to be made by the ancillary businesses — including consulting, accounting, law, and marketing — as well as in the treatment centers. “There is a great opportunity here in Massachusetts,” said Khalatbari, who charges $250 an hour for his services.

Tripp Keber, widely considered the king of cannabis-infused products, is also looking East. His Dixie Elixirs & Edibles enterprise earned more than $1 million in 2012 by selling medicated carbonated beverages, infused edibles such as chocolate truffles and fruit lozenges, and other items to roughly 500 medical marijuana dispensaries in Colorado, where medical marijuana has been legal since 2000. The medical marijuana business has spawned a variety of companies making products like drug-laced mints and containers. The bag at bottom right holds medicated drinks, balms, and salves.

Keber projects his company’s sales will more than triple this year as Dixie Elixirs strikes deals in Arizona, Washington, D.C., Connecticut, and Massachusetts. He is in discussions with six Bay State entrepreneurs, including one in Nantucket, to license the brand and technology.

At Dixie’s Colorado headquarters, molecular biologists wearing white lab coats work with mechanical engineers, chemists, food scientists, and a chef to create dozens of products in a Willy Wonka-like setting. They concoct a rainbow of elixirs, including sparkling pomegranate sodas formulated with up to 75 milligrams of THC (the active ingredient in marijuana) per 12-ounce serving and mandarin orange-flavored energy boosters with about 60 milligrams of THC and as much caffeine as a cup of premium coffee. The standard dose is about 10 milligrams, so such products are not intended to be single-serve.

Keber has more than 40 employees after acquiring four medical marijuana businesses and is negotiating to take over two more. To support the growing empire, Dixie has hired three law firms, five consultants, a graphic designer, and a security company.

“Medical marijuana has created a cottage industry. This business is growing exponentially,” Keber said during an interview in his office, where he proudly showcases Dixie’s most recent honor: a fake marijuana leaf in a snow globe emblazoned with the words “Most Valuable MMJ Business,” awarded by local cannabis consultants. (MMJ is industry shorthand for medical marijuana.)

“Two to three years ago, we couldn’t get someone to return our calls,” Keber said. “Now, on any day, we have three to five vendors calling, e-mailing, or knocking on our door wanting to do business with us.”

When states start medical marijuana programs, the business impact extends far beyond dispensaries and cultivation operations, said Chris Walsh, editor of the Medical Marijuana (MMJ) Business Daily, a trade publication based in Denver. Many other types of companies crop up to provide services, including hydroponics shops, software firms, and packaging vendors. For instance, MMC Depot, a Colorado company that sells high-end glass jars and colorful plastic prescription bottles to hold marijuana, is interested in opening an East Coast branch in Boston. “These other businesses generate millions of additional dollars in revenues and put more people to work,” Walsh said.

In Denver, Brian Vicente has built a law practice around medical marijuana. He helps start-ups across the country cope with local laws, negotiate leases, draw up mergers and acquisitions, and — if needed — represents them in court. The company is doing so well it recently moved from a modest office — with waiting room magazines that included The Hemp Connoisseur and High Times Medical Marijuana — to a brick mansion across the street.

Vicente’s firm has doubled its space and shares some with other medical marijuana firms. He was one of the first Denver professionals to set up an office in Massachusetts and hire a full-time lawyer, based in the Financial District, who helped organize the recently formed Massachusetts Medical Marijuana Association.

He estimates Massachusetts could enroll more than 100,000 patients within two years — similar to the patient base in Colorado. “We know this issue is going to be big, and we want to help it grow in the right direction,” Vicente said.

March 7, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, March 06, 2013

Notable commentary as Catholic University’s Columbus School of Law launches new clemency "partnership"

Copy%20of%20EhrlichI just came across this law school website account of an event last month launching an important new law school project in the Washington DC area. The discussion carries the heading "Law School to Host Clemency and Pardons Clinic in Collaboration with Former Governor Robert L. Ehrlich, Jr.," and here are some of the notable details from the launch event:

The Catholic University of America’s Columbus School of Law has been selected as the institutional home for “The CUA Law/Ehrlich Partnership on Clemency," among the country’s first law school-based clinics devoted to the research and study of executive clemency and the power of pardon.

The official announcement was made on at the National Press Club on Feb. 20 by Robert L. Ehrlich, Jr (above), who served as Maryland’s 60th governor from 2003-2007 and whose tenure was distinguished by the time he spent personally reviewing requests for pardons from convicted criminals.

Currently a senior counsel at King and Spaulding (which announced a $5,000 donation to the new partnership with another to follow next year), Ehrlich characterized the clemency project with the law school as a vital tool to educate and remind state chief executives of the vast power they possess but too often use infrequently.

“This is part of the job. But, your political courage quotient will be tested. It’s a strange issue, and neither Democrats nor Republicans seem to care very much about it,” Ehrlich said.

Under the auspices of its already established Innocence Project, the Columbus School of Law will expand the scope of its students’ current duties to include the preparation of pardon applications starting next August.

“We will also conduct a training program for newly elected state executives or their chiefs of staff, and we will provide a venue for educational and advocacy programs on executive clemency,” said law school Dean Daniel Attridge. “This is a splendid example of how our cooperative efforts can directly benefit our institution, our students, and our mission to serve the public.”

The announcement of the clemency clinic partnership came against the larger backdrop of a CUA Law sponsored symposium on the subject: “Smart on Crime: A New Era of Bipartisan Criminal Justice Reform,” that invited leading experts to dissect the shortcomings of the current system and suggest improvements.

Panelist Edwin Meese III, who served as served as the 75th Attorney General of the United States under President Reagan and currently holds a chair in public policy at The Heritage Foundation, said that California began improving its pardon policies dramatically back in the 1960s when Reagan served as governor.  But a pardon can rest on a convict’s behavior behind bars, and Meese said that brutal prison conditions can make it hard to be a model inmate....

There would be much less of a need for gubernatorial pardons in the first place if fewer behaviors were criminalized, said Rep. Bobby Scott, (D-VA). Mandatory minimum sentences for non-violent drug offenses, he said, are a big part of the problem. “These sentences discriminate against minorities and violate common sense,” said Scott. “We can reduce crime or we can play politics. Unfortunately, we can’t do both.”

Margaret Love, who served as the U.S. Pardon Attorney between 1990 and 1997 and focuses her private practice on the issue today, could not understand the reluctance of many politicians who hold the power of pardon to use it. “It should be one of the happiest duties of an executive. It should be easy,” said Love, who expressed surprise and disappointment in President Obama’s record so far of issuing just 22 presidential pardons, the lowest total to date in American history.

Three follow-up comments concerning this exciting new clemency intitiative:

1. I hope this new project might develop some sore of web presence, as I continue to believe there should be a lot more new media coverage and discussion of modern clemency issues.

2. I suspect it was just a coincidence that only a few days after this event, President Obama granted a significant and somewhat unexpected new batch of pardons (details here). Nevertheless, if I was in some way involved with this new clemency project, I would be dang sure to at least speculate that the timing of project's launch and these new pardon grants might have been more than mere coincidence.

3. Though never eager to look a gift horse in the mouth, I am a bit stunned that the massive King and Spaulding law firm only donated a measly $5,000 to this important endeavour.  A quick bit of research reveals that K&S has over 300 partners who with average profits/partner recently approaching $2,000,000/year.  If merely 1% of all the K&S partners had been willing to kick in just only 0.33% of their yearly profits to this important endeavor, this project would have gotten a donation twice as large.  I do not mean to be overly critical of K&S here, but I do mean to highlight how hard it often can be to get even those folks with very deep pockets to be willing to give significant sums to any criminal justice initiative even when it is headed by a former Republican Governor.

March 6, 2013 in Clemency and Pardons, Who Sentences? | Permalink | Comments (2) | TrackBack

US Sentencing Commission soon to be looking for a new staff director

Because I have come to know and really like the current staff director of the United States Sentencing Commission, I am now really quite melancholy about having just discovered this new press release on the USSC's website.  Here is how it begins:

Judith W. Sheon announced that she will retire on May 31, 2013, after serving for eight years as staff director of the United States Sentencing Commission.  She retires as the longest serving staff director of the Commission, having served under three chairs of the bipartisan agency — Judge Ricardo H. Hinojosa of the Southern District of Texas, Judge William K. Sessions III of the District of Vermont, and most recently Judge Patti B. Saris of the District of Massachusetts.

Ms. Sheon’s tenure as staff director was marked by the Commission’s transition to advisory guidelines after the Supreme Court decision in United States v. Booker.  She led the Commission’s efforts to modernize and expand its collection, analysis, and reporting of federal sentencing data, and oversaw the drafting of several major reports to Congress, including two reports on federal child pornography offenses and the continuing impact of Booker on federal sentencing that were issued last month.  Among the Commission’s major policy accomplishments during her tenure are amendments that reduced the guideline penalties for crack cocaine offenses.

March 6, 2013 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

After state senate vote, Maryland appears poised to repeal its (already dormant) death penalty

As reported in this extended Washting Post article, earier today the "Maryland Senate voted 27 to 20 to repeal the state’s death penalty Wednesday after four days of heated and emotional debate, putting Gov. Martin O’Malley (D) on the brink of a long-sought legislative victory." Here are more details and context:

Supporters of the legislation argued that capital punishment is not an effective deterrent, is costly and creates the risk of executing innocent people.... Opponents countered that the death penalty can be an important law-enforcement tool and should be kept on the books for heinous cases, several of which were recounted in graphic detail on the Senate floor....

The bill moves next to the House of Delegates, where repeal advocates say they are confident they have the votes. The Senate had long been viewed as the tallest hurdle for the legislation.   O’Malley’s repeal bill was introduced this session with 67 co-sponsors in the House, leaving supporters just four delegates to sway to get a majority. Del. Samuel I. Rosenberg (D-Baltimore), a champion of the legislation, said he is confident his side has the votes to prevail in coming weeks.

Maryland voters could have the final say on the issue, however.  If the bill passes the House, opponents have vowed to make use of a provision in the state Constitution that allows citizens to petition recently passed laws to the ballot, as happened with same-sex marriage last year.  The outcome of a death penalty referendum would be far from certain.

A Washington Post poll released last week showed that a majority of Marylanders want to keep the death penalty on the books despite widespread skepticism across the state about whether capital punishment is a deterrent to murder or is applied fairly.

O’Malley’s bill would replace death sentences with life in prison without the possibility of parole. It would not affect the five inmates currently on death row in Maryland, leaving it to the governor to determine whether to commute their sentences....

Maryland would become the 18th state to abolish the death penalty, and the sixth in six years, reflecting new momentum for repeal efforts nationally. The NAACP has put a priority on the issue and is focused heavily on Maryland this year.

Maryland has has not carried out an execution since 2005, when O’Malley’s Republican predecessor, Robert L. Ehrlich Jr., was in office.  The state has had an effective moratorium on capital punishment since December 2006, the month before O’Malley took office, when Maryland’s highest court ruled that regulations on lethal injection had not been properly adopted.

The O’Malley administration has yet to implement new regulations, and the shortage of a drug prescribed in Maryland for executions could complicate the efforts of any future governor to resume executions.  Some opponents of the repeal harshly criticized O’Malley for failing to move forward during the past several years. “It’s hard to say something doesn’t work if you don’t use it,” Colburn argued.

Two Republicans joined 25 Democrats in the chamber in voting for the repeal on Wednesday. The measure was opposed by 10 Republicans and 10 Democrats.

Debate on the measure was dominated by efforts to create exceptions to the repeal. Bill supporters fended off more than a dozen amendments, including provisions that would have allowed executions to continue for people who kill law-enforcement officers, for people who kill while in prison and people who rape their victims before killing them.

Recent related posts:

March 6, 2013 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

"Sen. Leahy: Sequester should halt federal marijuana raids"

The title of this post is the headline of this Washington Times account of some discussion about federal marijuana policy today in the Senate Judiciary Committee. Here are the details:

The Obama Justice Department is still trying to figure out how to handle the legalization of marijuana possession in Colorado and Washington state, but one senator on Wednesday said that in an era of stretched budgets, the feds should back off.

“I would suggest there are more serious things than minor possession of marijuana,” Sen. Patrick J. Leahy, Judiciary Committee chairman, told Attorney General Eric H. Holder Jr.

Minutes earlier, Mr. Holder had warned that the budget sequesters are forcing him to cut more than $1 billion from his department’s operations and said that could hurt national security.

Mr. Leahy, Vermont Democrat, said that’s all the more reason to not continue targeting marijuana users.

Mr. Holder is trying to figure out how the federal government, which still considers marijuana a major illegal drug, will deal with pot users in states where it’s been legalized. He said he expects to have a policy soon.

March 6, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (13) | TrackBack

Ohio completes its 50th execution in modern era

As reported in this new AP report, headlined "Ohio executes man who fatally shot security guard," my own great state of Ohio has this morning reach a notable modern death penalty milestone. Here are the basics:

A man who fatally shot an adult bookstore security guard in 1994 at the end of a multistate crime spree was executed on Wednesday.

Frederick Treesh received a single powerful dose of pentobarbital and was pronounced dead at 10:37 by Donald Morgan, warden of the Southern Ohio Correctional Facility in Lucasville. Treesh was sentenced to die for killing Henry Dupree in Eastlake east of Cleveland on Aug. 27, 1994.

Treesh, in a last statement, apologized for the death of Dupree, but said he wouldn't say he was sorry to family members of a video store clerk killed in Michigan who were witnessing the execution. "I've never been tried, I've never been charged," he said. After a few more comments he said, "If you want me murdered, just say it."

Treesh was the 50th inmate put to death by the state since it resumed executions in 1999.

Gov. John Kasich denied Treesh clemency last week, following the recommendation of the state parole board, which ruled unanimously last month that the evidence showed Dupree was seated when shot and hadn't shown any sign of being a threat to Treesh. The board also said Treesh's decision to shoot a clerk in the face as he left the store suggests Treesh's "murderous intent" when coming to the store. Treesh and his co-defendant "gratuitously brutalized, humiliated and killed innocent people, most of whom, like Dupree, posed no real or perceived threat to them," the board said.

Prosecutors say Treesh, 48, and the co-defendant robbed banks and businesses, committed sexual assaults, stole cars, committed carjackings and shot someone to death in a Michigan robbery during a spree that also took them to Indiana, Iowa, Minnesota and Wisconsin.

Just a decade ago, Ohio was among a number of large industrial and western states with a fairly large death row but few actual executions. States still in that category include California, Nevada and Pennsylvania and used to include Illinois.

But now Ohio in among the ranks of mostly southern states that have completed more than 50 executions in the post-Furman modern death penalty era. Via this page at the Death Penalty Information Center, here is a list of the states that Ohio has now joined (with their total modern executions in parentheses):

Texas (493)

Virgina (110)

Oklahoma (102)

Florida (74)

Missouri (68)

Alabama (55)

Georgia (53)

March 6, 2013 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Who Sentences? | Permalink | Comments (42) | TrackBack

Tuesday, March 05, 2013

UN agency and former DEA officials complain about the end of pot prohibition in two states

As reported in this notable Wall Street Journal article, headlined "Government Urged to Act Over Pot Laws," there are some notable new folks making noise about the efforts by two US states to end pot prohibition. Here are the interesting details:

A United Nations agency and a group of former U.S. Drug Enforcement Administration heads pressed the U.S. government Tuesday to challenge laws making recreational pot use legal in Colorado and Washington state.

The U.N.'s International Narcotics Control Board, which monitors implementation of U.N. drug-control conventions, said in its 2012 annual report that the states' pot laws violate international narcotics conventions and that it "urges the Government of the United States to take the necessary measures to ensure full compliance with the international drug control treaties on its entire territory."

Separately Tuesday, eight former DEA administrators issued a joint warning that the government must act now or lose the chance to nullify the Colorado and Washington laws. U.S. Attorney General Eric Holder said last week he is in the last stages of reviewing the laws.

"We are urging Attorney General Holder, as he did in the case of the Arizona immigration law, to file a lawsuit challenging the Colorado and Washington laws without delay," said one of former DEA Administrators, Judge Robert Bonner, in the statement.

"It's not up to the U.S. Attorney General to decide that he is going to abandon the law; it is his job to enforce the law," said Peter Bensinger, another of the former DEA administrators, in an interview.

Both states are working on rules to codify how marijuana's production, processing and sale will be regulated after voters in the states last November passed ballot measures letting adults use pot recreationally.

"It doesn't change what we're doing," said Brian Smith, spokesman for the Washington State Liquor Control Board, which is formulating pot-use rules there.

"This is an over-reach by outside entities," said Colorado state Rep. Jonathan Singer, a legalization advocate. A spokesman for Colorado Gov. John Hickenlooper said the office had no comment.

As political observers know, in nearly all other settings, folks on the right side of the aisle are typically quick to complain if and whenever either the United Nations or a federal agency tries to dictate whether and how an independent US state seeks to conduct its legal business.   I sure hope, just because we are now dealing with state laws concerning the use and distribution of a plant — rather than, say, state laws concerning the use and distribution of firearms or state laws concerning the operation of the death penalty — that the folks on the right do not conveniently forget the usual states' rights mantra in opposition to UN meddling or big federal agency over-regulation of state business.

A few recent and older related posts: 

March 5, 2013 in Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (9) | TrackBack

The many (impossible?) challenges of federal child pornography sentencing

The title of this post is inspired in part by the US Sentencing Commission's recent report, which highlights many of the flaws with the current child porn sentencing guidelines and set forth a number of ideas and needs for effective reform (basics here and here).  But what is really driving it is this new local article reporting on a federal sentencing in Maine, headlined "‘There will be no more victims,’ judge tells man at child pornography sentencing."  First, here are the basics of the sentencing story:

“There will be no more victims of Walter Mosher,” a federal judge told the 65-year-old convicted sex offender Monday in sentencing him to more than a dozen years in prison for possessing child pornography.

U.S. District Judge John Woodcock sentenced Walter A. Mosher Jr. of Hampden to 12 years and seven months behind bars. The judge also ordered him to remain on supervised release for life when he is released.

Mosher is scheduled to be sentenced Wednesday at the Penobscot Judicial Center on one count of gross sexual assault. Mosher reported to police through his attorney that he molested a boy under the age of 14 between Feb. 1, 2011 and March 1, 2012, according to the sentencing memorandum filed in federal court by his attorney, Jeffrey Silverstein of Bangor. Mosher pleaded guilty to the Class A crime Nov. 21 at the Penobscot Judicial Center.

Under the federal sentencing guidelines, Woodcock was allowed to consider Mosher’s recent guilty plea as “relevant conduct” in connection with the possession of child pornography charge, even though the victim was not depicted in the images found on Mosher’s computer. The federal judge focused on the sexual abuse of the child as he directed his comments at Mosher.

“There are some cases in this court that cry out for justice and yours is one of them,” Woodcock told Mosher shortly before sentencing him. “This was an inexplicable and hideous violation of trust. What we’ve seen today is just the tip of the iceberg of pain you have caused.” A parent of the victim told the judge that Mosher needed “to go away, and go away for a very long time.”

Mosher was required to register as a sex offender because he was convicted in 1986 in Aroostook County Superior Court in Houlton in connection with the molestation or abuse of 15 minors, according to the sentencing memorandum. Since serving 11 years on the 1986 charges, Mosher was not charged with another crime until he was indicted by a federal grand jury on March 15, 2012, according to court documents.

In an emotional statement, Mosher described in graphic detail how he was sexually abused as a child by a female relative. He said that when he committed his earlier crimes, he was going through a divorce and drinking heavily. “I am deeply ashamed and sorry for what I have done,” he told Woodcock. “I don’t know why I have done these things. I have no idea how I got to a place to do these horrible things.”

Mosher has been held without bail since his arrest the day after he was indicted. Mosher pleaded guilty to possession of child pornography in June in federal court. According to court documents, Mosher’s computer contained images of child pornography, specifically digital images and videos that were produced using minors engaged in sexually explicit conduct....

Because of his 1986 convictions, Mosher faced a minimum of 10 years in federal prison and a maximum of 20 years and a fine of up to $250,000. On the gross sexual assault charge, Mosher faces up to 30 years in state prison and a fine of up to $50,000.

Even without knowing any more that these most basic details about the defendant in this case or the particulars of his crime, it is easy to see all the tough questions facing Chief Judge Woodcock: e.g., should the defendant's federal child porn sentence here be longer (or shorter) given that he is surely soon to get a lengthy state sentence for gross sexual assault? should the defendant's recidivism at such an advanced age mean that a federal sentence now should try to ensure Mosher dies in prison, or should the sentence at least offer the defendant a glimmer of hope that he might be able to be free again in his 80s? With the facts of the criminal and the defendants criminal history so troublesome, should the defendant get much (if any) credit for pleading guilty and accepting responsibility?

I could go on and on highlighting all these challenges in this one case, but what really caught my attention when reviewing this article was these notably disparate headlines below the piece noting "similar articles":

In turn, a quick search for headlines from the same local Maine paper (the Bangor Daily News) revealed these additional sentencing headlines concerning the disposition of child porn charges over just the last 24 months:

A quick click through to a number of these article reveals that there are a number of striking parallels as well as a number of striking differences in the offenses and offenders in these cases.  Nevertheless, I still find notable and telling that even in a small and seemingly homogeous federal district like Maine, here is an accounting of the number of months in prison given to 10 child pornography offenders (going from lowest to highest sentence):

6 months; 12 months; 60 months; 84 months; 151 months; 192 months; 192 months; 240 months; 300 months; 340 months

The point of my post here is not to assert or even suggest that any of these referenced sentences is right or wrong or should be higher or lower.  Without spending a lot more time looking through the facts of all these cases, I think it is extremely hard to reach even a tentative conclusion about this pattern of sentencing result.  But that is my main broader point: there is, of course, a pressing interest and enduring goal for everyone involved to try to determine the "right" sentence in federal child pornography cases not only in each individual case, but also across a range of cases.  But, these cases all necessarily raise so many important and challenging issues, I wonder and worry if the goal to get federal child pornography sentencing "just right" is a kind of "fool's gold" that many will pursue at a great cost but ultimately with little of value to show from the pusuit.

Recent related posts:

March 5, 2013 in Booker in district courts, Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (26) | TrackBack

"Fearing Deluge of Litigation, Supreme Court Works the Floodgates"

The title of this post is the headline of this fascinating new "Sidebar" column by Adam Liptak in today's New York Times.  Here are excerpts:

February was flood season at the Supreme Court.  On Feb. 20 alone, three justices used flooding as a metaphor in talking about the consequences of the court’s rulings.  Justice Samuel A. Alito Jr. wrote that allowing some lawsuits from prisoners would not “prompt an unmanageable flood of litigation.”  Justice Antonin Scalia countered that there was indeed a good reason to worry about “a flood of litigation.”  Justice Stephen G. Breyer, in a second decision that day, said allowing the correction of plainly erroneous rulings late in the game “will not open any ‘plain error’ floodgates.”

Lawyers who argued before the court were using the same terms.  On Feb. 27, one assured the justices that “we haven’t seen the floodgates opened” after a lower court allowed some kinds of class actions. The week before, another lawyer said that ruling against his position “would unleash a flood of suits by prisoners.”  A lawyer on the other side responded: “If adopting a broader interpretation here would open the floodgates, the floodgates are already open, and they have been for 40 years in most of the country.  And we haven’t seen a flood.”

In real life, floods are bad.  But the metaphor of a flood in the context of litigation obscures more than it illuminates.  If a legal theory is sound, is it a problem if it produces too much justice?

Marin K. Levy, a law professor at Duke University, has been tracking the rise of all of this talk of floods.  “It’s a huge uptick,” she said. “This is clearly on their minds,” she said of the justices, “and it’s something that should give us pause.”

She found about 60 “explicit floodgates cases,” meaning cases using that term and its cousins.  The first was in 1908.  They reappeared in the 1940s and picked up in the 1970s. Nearly half are from 2000 or later, and 14 are from the last four terms....

In an article to be published in September in The University of Chicago Law Review, Professor Levy proposes a subtle taxonomy of floodgates arguments, approving of ones protecting executive branch officials and interpreting statutes to track Congress’s purpose. Those limits, she writes, are grounded in the separation of powers. She is also sympathetic to limits that affect the relationship between state and federal courts.

But about half of the cases are based on a more self-interested concern: the fear that federal courts will be inundated with new cases and judges may have to work too hard to keep up with them. The metaphor gained currency, Professor Levy writes, as many judges and law professors in the 1970s grew concerned that caseloads in the federal courts were becoming unmanageable. Justice Stevens said as much in a 1978 opinion, observing that appeals court judges were “struggling desperately to keep afloat in the flood of federal litigation.”

There are, to be sure, some kinds of lawsuits that are likely to be a waste of judicial time. As Justice Robert H. Jackson wrote in a 1953 concurrence, there was good reason to worry about “floods of stale, frivolous and repetitious petitions” from prisoners challenging their convictions.

“It must prejudice the occasional meritorious application to be buried in a flood of worthless ones,” he wrote. “He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search.”

Congress can certainly erect barriers against such problems, and it has. The Prison Litigation Reform Act of 1995, for instance, cut back on, in Justice Alito’s words in a 2006 opinion, “a flood of prisoner litigation in the federal courts.”

But allowing judges to close the courthouse door to a class of cases on the ground that they create too much work is, Professor Levy writes, “deeply troubling,” for two reasons. One is that judges are not particularly good at predicting the consequences of their decisions. The other is that this sort of thinking is not grounded in the law.

“Barring a true flood of tens or hundreds of thousands of cases,” she wrote, “no evident principle exists to support the court taking workload concerns into account when engaging in interpretation of the law.”

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

Monday, March 04, 2013

Does God care who wins when federal judges impose sentences?

SI coverThe silly question in the title of this post is prompted in part by last month's Sports Illustrated cover which asked "Does God Care Who Wins the SuperBowl?"  Whatever your answer to that important ecumenical sports query, my version of the question above is a response today to this new local federal sentencing story from Vermont headlined "Virginia pastor credits 'the mercy of God' in custody dispute sentencing: Kenneth Miller sentenced to 27 months but released pending appeal."  Here are the divine (and fascinating) particulars of a notable federal sentencing process:

A Mennonite pastor who helped a still-missing woman and her daughter flee the country — and a custody fight with the woman’s former lesbian partner — joined his supporters in song Monday evening in Burlington after learning his 27-month prison sentenced could be put on hold while he appeals his conviction.

Kenneth Miller was still wearing his prison jumpsuit when he left federal court in Burlington and met a crowd of about 100 supporters who came to Vermont from as far away as his home state of Virginia.   “I am grateful for the mercy of God,” Miller said before joining his supporters in singing a hymn, “Our God, He is alive.”

During a two-hour sentencing hearing, Miller told U.S. District Court Judge William Sessions III he couldn’t promise he would not again aid in international parental kidnapping.  Last summer a jury found him guilty of helping Lisa Miller and her now-10-year-old daughter, Isabella, travel from Virginia to the Canadian border and then on to Nicaragua via the Toronto airport.   Lisa Miller and Isabella are still believed to be hiding in Central America.  They are not related to the pastor.

Kenneth Miller, 47, of Stuarts Draft, Va., said he acted out of conscience and a religious belief that finds the idea of same-sex marriage offensive after a desperate Lisa Miller came to him in September 2009.  Miller said the woman pleaded for help escaping a court order that Isabella spend time with her former partner, Janet Jenkins, of Fair Haven, Vt....

Sessions said he admired Miller for the depth of his convictions, but he could not allow him to choose God’s law over his country’s, saying the pastor had helped deprive Isabella of Jenkins’ love.  “The horror of this cannot be overstated,” Sessions said.

Assistant U.S. Attorney Christina Nolan said Kenneth Miller’s actions were not those of someone full of love and compassion for other people — particularly Jenkins — as he and others have claimed.  “He didn’t see her as a human being.  He saw her primarily as a homosexual associated with the powers of darkness,” Nolan said.

Lisa Miller and Jenkins were joined in a Vermont civil union in 2000, and Isabella was born to Lisa in 2002. The couple split in 2003, and a Vermont family court gave custody of Isabella to Lisa Miller with regular visitation for Jenkins.  Lisa Miller then returned to Virginia, became a conservative Christian, renounced homosexuality and sought full custody. Two months after Lisa Miller and Isabella fled the country, a Vermont family court judge transferred custody of the girl to Jenkins, who was not in court Monday.

Kenneth Miller had been jailed since Jan. 24 for contempt of court after refusing repeated orders to testify before a federal grand jury seeking information about others involved in the flight of Lisa Miller and Isabella. At the end of Monday’s hearing, Sessions released him from the contempt citation saying additional incarceration was unlikely to compel him to testify.

Kenneth Miller’s attorneys are planning to appeal. They argued the law that allowed Kenneth Miller to be tried in Vermont for a crime that neither occurred nor was planned in the state was likely to be overturned on appeal. Sessions, the judge, said the appeals process could take years.

March 4, 2013 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

A notable first echo from Ohio's notable new early release law

This local AP article, headlined "Five should be freed, state prisons chief says," reaffirms my belief that Ohio is now a dynamic and important "state to watch" concerning modern sentencing law and practices. Here are the interesting details from this latest story in the important Buckeye chapter of modern sentencing reform:

Ohio’s prison chief has recommended the release of five inmates who have served 80 percent of their time. The recommendations, if approved, would mark the first use of a 2011 law meant to help reduce the state’s inmate population and save the state money.

Director Gary Mohr of the Department of Rehabilitation and Correction cited several reasons, including good behavior, for his recommendations in letters to judges, who have the final say. He also considered information from prison employees who are go-betweens with the prisons, the courts and the inmates.

The five inmates — two women and three men — are serving time mostly for low-level felonies, although one was convicted of aggravated vehicular homicide.

Prisons spokeswoman JoEllen Smith said the 80 percent release option encourages inmates to act responsibly in prison “and is significant in our effort to better communicate with courts and assist the eligible, suitable offenders in having a successful transition back into our communities.”

The 2011 law aims to save the state millions of dollars by shrinking the number of inmates and reducing the number of offenders who might return to prison as repeat offenders. By several measures, the law and other efforts are working.

Ohio’s prison population remains under 50,000 inmates, a level not seen since 2007. Also, the state reported on Feb. 22 that the number of inmates returning to Ohio prisons upon release has hit a new low, a trend officials attribute to a focus on keeping inmates in the community and the involvement of groups that work with inmates before their release.

Other factors Mohr considered in making his recommendations included little or no rule-breaking during incarceration; a history of participating in prison programs; and development of a plan for dealing with the release.

Inmate Mary Clinkscales of Summit County, sentenced to a seven-year prison term in 2007 for possession of drugs, is a prime candidate for release because of her activities in prison, according to a Feb. 15 letter from a go-between, called a justice reinvestment officer.

Clinkscales had just one rule infraction while imprisoned — wearing shorts that were not part of her state-issued clothing — said Suzanne Brooks, the agency’s Cleveland-area justice reinvestment officer.

Clinkscales has attended literacy, anger-management and family-values skills classes, worked on community service projects making hats and scarves and is not a gang member, Brooks said. All these factors, plus no previous prison sentence, make her a suitable candidate for release, Brooks said.

I am tempted at this point to jokingly suggest that it would make sense to expect that someone named "Clickscales" would at some point get sent to prison for a drug offense. But this new story about prison officials actually actively advocating for the early release of a few prisoners is too serious and important to make the basis of jokes about surnames. And speaking of serious and important, the five prisoners likely to get released first via this Ohio early release program ought to seriously understand how very important it will be for other prisoners and so many others throughout Ohio for them to fulfil the faith that Ohio's prison chief has in them.

There are lots of potential reactions and commentary justified by this story and the operationalization of the 2011 Ohio law meant to help reduce the state's inmate population and save the state money. For now, I want to focus on an important political reality in this Ohio "smart on crime" development: both houses of the Ohio General Assembly and the executive branch of Ohio were all in firm Republican control when Ohio enacted the broad-based sentencing reform that is now enabling at least five offenders to likely obtain early release from their prison sentences. For this reason (and others), I think prison reform is right now much better understood, at least at the state level, as a matter of avoiding the (budget) red rather than a matter of political debate among the blue and red sides of the aisle.

March 4, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (15) | TrackBack

"Constitutional Line Drawing at the Intersection of Childhood and Crime"

The title of this post is the title of this intriguing looking new paper now available via SSRN.  Here is the abstract:

Three cases have arisen in the first seven years of the Roberts Court in which concepts of childhood have played a key role.  First came Graham v. Florida, a 2010 case in which the Court held that the Eighth Amendment's Cruel and Unusual Punishment's Clause prohibited sentencing of juveniles to life without parole for non-homicide offenses.  Next was J.D.B. v. North Carolina, a 2011 case in which the Court held that a juvenile's age is a relevant consideration when determining whether a reasonable person would believe he was in custody for Miranda purposes.  Finally, the Court decided Miller v. Alabama, a 2012 case in which the Court held that the mandatory imposition of life without parole in cases where juveniles were convicted of homicide was cruel and unusual punishment because it precluded consideration of age and its attendant consequences.

Though at first glance these three cases appear consistent -- they each result in some degree of enhanced constitutional protection for juveniles -- a closer look reveals significant jurisprudential tension because the opinions are riddled with contradictions. This Article explores those tensions and the need to resolve them, focusing in particular on two major line-drawing problems that have emerged in the juvenile cases. The first is inherent to but largely ignored in the cases: whether and where to draw the line between childhood and adulthood.  The second line is judicially manufactured: the line between homicide and non-homicide offenses.  The Article describes and critiques the Court's line drawing and offers proposed solutions to remedy flaws in the Court's reasoning.

March 4, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

"The left’s austerity strategy for the death penalty"

The title of this post is the headline of this new MSNBC piece, which reports on a segment that ran on that network yesterday. Here are highlights:

In an age when trimming budgets and reducing deficits has become politically popular, some liberals are brewing a new strategy on old issues.  Democrats and left-leaning groups are increasingly trying to use austerity arguments to pass their progressive agendas.

Maryland’s Democratic Gov. Martin O’Malley has long sought to have the death penalty abolished in his state.  As a Roman Catholic, he has used a moral argument against the death penalty in the past.  But now he is emphasizing the financial benefits of making the maximum sentence a life in prison without parole...

Rather than funnel all of their focus into moral and social arguments, the bill’s supporters have been making their point partly in economic terms.  The cost of prosecuting a death row case in Maryland can be as much as three times what it costs for a case seeking a life sentence without parole.

A study by the Urban Institute in 2008 found that the average cost to taxpayers for one death sentence was $3 million, about $1.9 million more than it cost for a case when the death penalty wasn’t sought.  These numbers include the criminal investigation, trial costs, appeals, and incarceration....

For elected officials who can’t be tough enough on crime, NYU law professor Bryan Stevenson said, “you need a narrative that allows people to retreat from that and cost is just a very effective one.”

On Sunday’s Up with Chris Hayes, Stevenson also addressed the fears of many voters that abolishing capital punishment could lead to a higher crime rate, explaining that the economic arguments could also benefit public safety:

“Maryland’s bill actually will give money and resources to the families of people who’ve lost loved ones.  California’s bill was actually directly aimed at helping to solve the 34% of homicides that aren’t resolved in an arrest, 46% of rapes that aren’t resolved in an arrest, mostly in poor and minority communities.  I think if you’re concerned about public safety, these economic arguments actually make links that we have to make.”

If it passes, Maryland will be the sixth state in six years to abolish the death penalty, after New Jersey, New Mexico, New York, Illinois, and Connecticut....

While they acknowledged the financial advantages, the Up with Chris Hayes panelists emphasized that decades of talking about the death penalty’s moral and social implications cannot be ignored.

“If the economic argument is the one that tips the scales, then I need not worry that we haven’t couched the debate enough in moral terms,” said Mattea Kramer of the National Priorities Project.  “You keep your eyes on the prize.” Stevenson added, “I don’t actually think that the economic arguments would be effective today if we hadn’t shown over the last 15 years that we’re putting a lot of innocent people on death row.”

March 4, 2013 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (25) | TrackBack

Sunday, March 03, 2013

Drug courts come to federal system (and New York Times' front page)

Y-jp-drug-court-articleInlineRegular readers know about the drug courts movement and its (varied but still very important) success as an alternative means to process certain drug offenders through the modern criminal justice system.  But, thanks to this big new front-page article in today's New York Times, which is headlined "Outside Box, Federal Judges Offer Addicts a Free Path," the notable new story of drug court development in the federal criminal justice system is due to get a lot more attention.  Here are extended passages from the Gray Lady's important coverage of this important federal sentencing story:

Federal judges around the country are teaming up with prosecutors to create special treatment programs for drug-addicted defendants who would otherwise face significant prison time, an effort intended to sidestep drug laws widely seen as inflexible and overly punitive.

The Justice Department has tentatively embraced the new approach, allowing United States attorneys to reduce or even dismiss charges in some drug cases.  The effort follows decades of success for “drug courts” at the state level, which legal experts have long cited as a less expensive and more effective alternative to prison for dealing with many low-level repeat offenders.

But it is striking that the model is spreading at the federal level, where judges have increasingly pushed back against rules that restrict their ability to make their own determination of appropriate sentences.  So far, federal judges have instituted programs in California, Connecticut, Illinois, New Hampshire, New York, South Carolina, Virginia and Washington.  About 400 defendants have been involved nationwide.

In Federal District Court in Brooklyn on Thursday, Judge John Gleeson issued an opinion praising the new approach as a way to address swelling prison costs and disproportionate sentences for drug trafficking.  “Presentence programs like ours and those in other districts mean that a growing number of courts are no longer reflexively sentencing federal defendants who do not belong in prison to the costly prison terms recommended by the sentencing guidelines,” Judge Gleeson wrote.

The opinion came a year after Judge Gleeson, with the federal agency known as Pretrial Services, started a program that made achieving sobriety an incentive for drug-addicted defendants to avoid prison.... 

The new approach is being prompted in part by the Obama administration, which previously supported legislation that scaled back sentences for crimes involving crack cocaine. The Justice Department has supported additional changes to the federal sentencing guidelines to permit the use of drug or mental health treatment as an alternative to incarceration for certain low-level offenders and changed its own policies to make those options more available.

“We recognize that imprisonment alone is not a complete strategy for reducing crime,” James M. Cole, the deputy attorney general, said in a statement.  “Drug courts, re-entry courts and other related programs along with enforcement are all part of the solution.”...

The development of drug courts may meet resistance from some Republicans in Congress. “It is important that courts give deference to Congressional authority over sentencing,” Representative F. James Sensenbrenner Jr., Republican of Wisconsin, a member and former chairman of the Judiciary Committee, said in a statement.  He said sentencing should not depend “on what judge happens to decide the case or what judicial circuit the defendant happens to be in.”

At the state level, pretrial drug courts have benefited from bipartisan support, with liberals supporting the programs as more focused on rehabilitation, and conservatives supporting them as a way to cut spending.  Under the model being used in state and federal courts, defendants must accept responsibility for their crimes and agree to receive drug treatment and other social services and attend regular meetings with judges who monitor their progress.  In return for successful participation, they receive a reduced sentence or no jail time at all.  If they fail, they are sent to prison....

In interviews, the federal judges who run the other programs pointed to a mix of reasons for their involvement. Judge Ricardo S. Martinez ran a state drug court in Seattle before he was appointed to the federal bench.  “People that have a serious addiction, you can put them in custody, but the minute you put them back in the community, they go back to the same thing and lo and behold you see them again,” Judge Martinez said in an interview.

Some of the most pointed criticism of the status quo has come from Judge Gleeson, a former federal prosecutor.  The drug court he helped set up is open to defendants who committed a range of nonviolent crimes, like fraud and selling prescription pills, and whose addictions fueled their actions.

In a 35-page opinion he issued this week, he criticized the Justice Department for charging defendants with drug offenses that carry mandatory minimum sentences, urged the Sentencing Commission to reduce the guideline range for many drug offenses and called for more programs that divert defendants from prison time.  The opinion chronicled the case of three graduates of the drug court....

Loretta E. Lynch, the United States attorney in Brooklyn, said she backed the program because drug courts elsewhere had lowered recidivism rates. “Our overall strategy of law enforcement and crime prevention isn’t just incarceration,” Ms. Lynch said.

At a sentencing hearing for Ms. Leitch last month, a prosecutor vacated her guilty plea and agreed to dismiss the charges if she did not use drugs or get arrested for 18 months. After the hearing, Judge Gleeson offered some encouraging words for the defendant, and then a hug. “I don’t know them as just the judge,” Ms. Leitch said later. “People see judges as the bad guy. They get deeper. They get to know who you are.”

Judge Gleeson's 35-page opinion in US v. Leitch et al, 11-CR-00609 (EDNY Feb. 28, 2013), not only merits NY Times front-oage coverage, but also a read in full. I have uploaded that opinion here.

Download Gleeson SOR in Nunez.Leitch

Some older and newer related posts about drug court programs and research:

March 3, 2013 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

"Should defendants’ age, health issues be sentencing factors?"

The question in the title of this post is the sub-heading of this notable article appearing in my own local Columbus Dispatch, which carries the main headline "Seniors argue for less time in prison." Here are excerpts:

Is prison more of a punishment if a defendant is 50 rather than 20? Some defense attorneys are debating that issue in federal court as they seek to minimize prison sentences for defendants 50 or older.

“We’re seeing it a lot,” Assistant U.S. Attorney Deborah A. Solove said. The issue is at the heart of an unprecedented second appeal that Solove has filed over the prison sentence imposed by U.S. District Judge James L. Graham on a Knox County man, Richard Bistline.

Graham originally sentenced Bistline, 70, of Mount Vernon, in 2010.  The sentence, for possessing child pornography, was one day in prison plus 10 years of supervised probation. Solove appealed, saying the sentence was too lenient.  The 6th U.S. Circuit Court of Appeals ordered Graham to resentence Bistline, saying the original penalty “does not reflect the seriousness of his offense.”

In January, Graham ordered the same sentence but added three years of home confinement as part of Bistline’s probation. The judge said he didn’t order more prison time because he was concerned about Bistline’s age and health problems, which included two strokes and a heart attack a year ago.  He questioned whether Bistline would get adequate medical care in prison.

Solove, who prosecuted the case, had asked for a five-year prison term, which was a bit less than is called for in the sentencing guidelines determined by the court. Graham maintained that would be “a life sentence, or more accurately, a death sentence,” for Bistline.

Graham said last week that judges can consider age and infirmity in sentencing, and he does that if a defendant is not a danger to the public. “I was completely satisfied in this case that he was not.  Your job as a judge is to figure out which one of these defendants are the really bad guys you need to put away.”

In another case, Laura E. Byrum, an assistant federal public defender, is arguing that her 64-year-old client should get a prison sentence that’s shorter than the guidelines call for, in part because of his age and health problems.   Robert W. Burke of 767 Bracken Court, Worthington, pleaded guilty to one count of receiving child pornography, and the guidelines call for a 20-year prison term.

Byrum has asked for a 10-year prison term followed by 20 years of supervised release. She argues that the life expectancy of a man Burke’s age is 18 years, and his is likely shorter because he has skin cancer and chronic obstructive pulmonary disease.  Twenty years is a “virtual death sentence,” she wrote in her sentencing memorandum.

Assistant U.S. Attorney Heather Hill said the federal prison system can handle most of the typical health problems associated with aging. “Going to prison isn’t easy for anyone, but that is the consequence of breaking the law,” she said. “We’re not sure that being nearer to the grave gives you license to be a criminal.”

According to a 2012 report by Human Rights Watch, state and federal prisons held 124,440 prisoners who were 55 or older in 2010.  That was a 282 percent increase from 1995, at a time when the total number of prisoners rose by 42 percent.

Prior related posts:

March 3, 2013 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Scope of Imprisonment, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Saturday, March 02, 2013

Congress not done asking hard questions about federal prosecution of Aaron Swartz

As reported in this lengthy Boston Globe article, headlined "Inquiry widens into Swartz prosecution," some members of Congress are not yet satisfied with the Justice Department's account of its prosecution of Aaron Swartz.  Here is how the Globe article begins:

A congressional committee is broadening its investigation of the Boston-based prosecution of political activist Aaron Swartz, whose January suicide prompted questions about whether the Justice Department went too far in enforcing a 27-year-old law regulating computer use.

Darrell Issa, chairman of the House Committee on Oversight and Government Reform, said in an interview that he plans to expand his inquiry into how the office of US Attorney Carmen Ortiz of Massachusetts handled the case.

“Are we using excess prosecution, excess claims in order to force guilty pleas?” the California Republican asked.  “Or are we trying to genuinely offer punishment fitting the crime?  In the case of Aaron Swartz, it’s very clear that they were trying to send a message to people other than Aaron Swartz with what they were willing to offer him and what he was charged with.”

Issa said his committee is seeking information from the Massachusetts Institute of Technology, where Swartz hacked computers, and JSTOR, the scholar database whose files he downloaded.   Issa’s staff was recently briefed by the Justice Department on the rationale for the prosecution of Swartz, but Issa said the committee was left with many questions that he hopes will be answered in an expanded inquiry.

Whatever happens in the investigation, the case has simultaneously pushed Congress to review whether to update the law under which Swartz was prosecuted.  That has prompted a debate with potentially far-reaching consequences, as lawmakers ponder whether to revise a law enacted in 1986 — when the Internet as it is known today barely existed — without creating an opening for illegal hacking.

March 2, 2013 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Obama grants 17 pardons ... could this signal a new (second term) approach to clemency?

As reported in this Washington Post article, headlined "Obama grants pardons to 17 people for nonviolent offenses," President Obama late yesterday rediscovered his clemency powers. Here are the basics:

President Obama pardoned 17 people for nonviolent offenses Friday, a rare move that nearly doubled the number of pardons he has granted since taking office just over four years ago.  The individuals came from 13 states and were sentenced years if not decades ago for such minor federal offenses as falsely altering a U.S. money order, possessing an unregistered firearm, embezzling bank funds and acquiring food stamps without authorization....

The pardons, the first of Obama’s second term, are significant because this president so infrequently grants clemency.

Before Friday, Obama had granted 22 pardons; he had received petitions from 1,333 individuals, according to the data maintained by the Department of Justice’s Office of the Pardon Attorney. He granted his first batch of pardons, totaling nine, in December 2010, and granted eight in May 2011 and five in November 2011.

By contrast, former president George W. Bush received 2,498 petitions and granted 189 pardons, while former president Bill Clinton received 2,001 petitions and granted 396 pardons, according to the data.

Dafna Linzer of ProPublica, a nonprofit investigative news organization, reported last year that Obama has granted clemency at a lower rate than any modern president. Among the hundreds of people who have been denied pardons by Obama, Linzer reported, are a former brothel manager who helped the FBI bust a national prostitution ring and a retired sheriff who inadvertently helped a money launderer buy land.

Obama has come under criticism for not using more frequently his constitutional powers to pardon people for federal crimes. Some academics argue that the president could have more impact by pardoning younger people with more recent crimes.

“He’s not only being extremely stingy, but he’s giving pardons to people who arguably need them the very least,” said P.S. Ruckman Jr., a political scientist at Rock Valley College in Illinois who blogs about presidential pardons. “The people who need pardons are people in their 30s and 40s and 50s who are trying to get jobs and raise families.”

Jeffrey Crouch, a political science professor at American University, said the pardons announced Friday mirror those Obama granted in his first term. “The president’s pattern has been pretty much to go for the safe route — look for older offenses, nonviolent offenses — and using the pardon power in some cases just enough to not be criticized for not using it at all,” said Crouch, author of “The Presidential Pardon Power.”

The White House on Friday offered no information about why Obama selected these 17 individuals for pardons other than that he believes they will lead productive lives. “As he has in past years, the president granted these individuals clemency because they have demonstrated genuine remorse and a strong commitment to being law-abiding, productive citizens and active members of their communities,” White House spokesman Matt Lehrich said.

Of course, the Pardon Power the place to go for all the pardon news and analysis via P.S. Ruckman, and this new post provides some more context for these latest grants:

Today, President Obama granted 17 pardons, the largest batch of pardons granted in his presidency.  This brings his pardon total to 39 (22 in the first term and 17 in the second). He has also granted a single commutation of sentence (first term).  According to the Office of the Pardon Attorney, Obama has received at least 8,000 clemency applications to date.

Recall, President Obama waited a whopping 682 days before  granting the first pardon of his first term -- the longest delay for any president in American history, save George W. Bush. For Obama's second term, the wait has been a mere 39 days!

Regular readers know I have been very critical of President Obama for his failure to make any significant use of his clemency powers. Consequently, I am pleased to see any Presidential action on this front. But, as the title of this post suggests, what really matters is whether these initial pardons might be a sign of a lot more clemency action to come in months and years ahead.

Some recent and a few older posts concerning federal clemency practices:

March 2, 2013 in Clemency and Pardons, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, March 01, 2013

Proof of bad people or bad punishments or bad programming?

PA infographic_page2The quirky question in the title of this post is prompted by this notable local article from Pennsylvania, which is headlined "6 in 10 will re-offend: State prison study sets baseline for progress." Here are the details:

Secretary of Corrections John Wetzel on Thursday morning released what he's calling a "landmark study" into recidivism rates at Pennsylvania's state prisons, and the study is noted not for the progress shown, but rather for the lack of change demonstrated.

For more than a decade, a consistent six in ten people released from Pennsylvania state prisons were either re-arrested or put back in prison within three years. What's "landmark" about the study is in part its scope -- more than 12 years -- but largely the fact is sets a "baseline" for going forward.

Wetzel said it marks the first step toward measuring progress. "Citizens of the Commonwealth should have every expectation of a corrections system that actually helps people correct themselves; one that is based on research, not on anecdotal stories and innuendo," said Wetzel.

While population and cost "remain essential measurements" in Gov. Tom Corbett's Corrections Reform initiative, he said, "The 'new normal' is to expect and require quantifiable results."

The study, which Wetzel called "the keystone of the Corbett Corrections Reform initiative," also helps the Department of Corrections and the Board of Probation and Parole understand who is most likely to re-offend and how.  “To get a true picture of whether our state prison system is meeting its goal of reducing future crime, we need to look at more than just the reincarceration of an individual,” Wetzel said.  “We need to look at re-arrests as well to see the whole picture of how and when individuals come into contact again with the criminal justice system.”

For example, the study found that more than half of those who will return to prison within three years after release will do so within the first years, which is by far the most risky period for recidivism.  Younger offenders are more likely to recidivate than older offenders.  Individuals most likely to reoffend appear to be property offenders. Individuals least likely to reoffend are those incarcerated for driving under the influence of intoxicants, rape and arson.

The study looked prisoners' background as well and found a released inmate who has 10 or more prior arrests is greater than 6 times more likely to recidivate than a released inmate with no prior arrest history other than the arrest for the current stay in prison.

According to the study, nearly two-thirds of all reincarcerations within three years of release from prison are for technical parole violations.  Nearly three-fourths of rearrests within three years of release from prison are for less serious offenses.

The study also confirmed the damning portrait of Community Corrections Centers outlined in an earlier study performed by Dr. Edward Latessa of the University of Cincinnati.  From 2005 through 2011, inmates paroled to a Community Corrections Center were actually more likely to be back in prison within a year as inmates paroled directly home.

Wetzel said the Department of Corrections can save taxpayers $44.7 million annually by reducing the one-year reincarceration rate by 10 percentage points.

The full 45-page report referenced in this article is available at this link, and the cool infographic that explains the reports key findings comes from the PA Department of Corrections website.  One key finding reflected in the infographic is that less than one in five new arrests are for an act of violence.  The majority of rearrests are for drug or public order offenses or parole violations.

Obviously, lots of different conclusions and responses can be based in this new recidivism data.  But I think most important is to stay ever open-minded about what can be the most effective and efficient kinds of criminal justices responses.  This report apparently reveals that for some offenders in some cases recidivism may be lower in the absence of a certain kind of punishment or programming.  It is, of course, bad enough when the work of a department of corrections fails to actual help "correct" people.  But the ultimate form of government waste exists when there is evidence that the taxpayer funded work of the criminal justice system may be making people worse criminals.

March 1, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Procedural rules now blocking efforts to undo convictions of federal defendants who are legally innocent

As reported in this new USA Today piece, headlined "Federal judge refuses to release innocent prisoners," a number of procedural issues are getting in the way of undoing federal convictions of defendants that the US Justice Department now recognizes are legally innocent.  Here are the details:

Even the federal prosecutors who put Gordon Lee Miller in prison couldn't get him out.  U.S. Justice Department lawyers took the unusual step in December of asking a federal judge to throw out Miller's conviction and free him because, they said, he had not actually broken the law.

But the judge's answer was still more unusual: No. 

The judge's ruling against Miller is among the latest in a handful of court decisions blocking — at least temporarily — efforts by defense lawyers and prosecutors to overturn convictions in hundreds of cases in which the Justice Department agrees that people were sent to prison improperly because of a misunderstanding of federal law. The decisions raise for the first time the prospect that scores of prisoners still waiting for courts to decide their cases might remain locked up.

"It's very frustrating," said Chris Brook, legal director of the ACLU of North Carolina, which has been tracking the cases.  "These are cases where everybody is on the same page. The government and the defense agree.  The only one standing in the way is the judge."  Miller finished his prison sentence while the case was being decided, but still must serve three years on supervised release.

The legal dispute stems from a misunderstanding about which North Carolina state convictions were serious enough to make having a gun a federal crime.  A USA TODAY investigation last year identified 60 people who had been sent to prison on gun charges even though an appeals court later determined that it was not illegal for them to have a gun.  The Justice Department had initially asked courts to keep the prisoners locked up anyway, but dropped that position last year "in the interests of justice," and is now asking courts to let them out.

In response, judges have so far freed 34 people and taken at least 16 others off supervised release, court records show.  A Justice Department review last year identified 175 others in the smallest of the state's three judicial districts who are entitled to be released or have their prison sentences reduced.

But this month, U.S. District Judge Robert Conrad in Charlotte turned down petitions by Miller and another man seeking to have their convictions overturned, even though prosecutors said in court filings that they were "convicted for conduct that we now understand is not criminal." Another judge, Martin Reidinger, has expressed skepticism that he can free five other men, and has asked prosecutors and defense lawyers to prepare additional filings before he makes his decision.

A Justice Department spokeswoman, Allison Price, declined to comment on the specifics of those cases, saying only that "the court is empowered with great discretion and we respect the court's decision."  The department has until next week to tell Reidinger whether it still believes the men can be freed.

Miller was sent to federal prison under a law that bars people from owning guns if they have already been convicted of a crime that could have put them in prison for more than a year.  But Miller's prior North Carolina convictions could have put him in jail for no more than eight months. Conrad — the former chief federal prosecutor in Charlotte — said in a Feb. 15 order that he could not upend Miller's conviction.  Miller, he wrote, was "lawfully sentenced under then-existing law," and an appeals court's 2011 decision that changed that understanding of the law did not apply to cases that were already concluded.

Miller's lawyers, who declined to comment, have appealed Conrad's order.  If an appeals court upholds the decision, it could effectively block other judges from overturning convictions in similar cases that are still pending in federal courts throughout North Carolina.

Related prior posts:

March 1, 2013 in Gun policy and sentencing, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Thursday, February 28, 2013

"The right way to regulate pot"

The title of this post is the headline of this notable new Los Angeles Times editorial.  Here is how it starts and ends:

Political movements like the tea party may come and go, but the pot party seems to get stronger with every national election, putting the federal government in an increasingly untenable position.

To date, more than one-third of the states and the District of Columbia have legalized marijuana, at least for medical purposes, and, according to Americans for Safe Access, eight other states are considering bills to do the same. As a result, we're getting close to the point where half the country will have legalized a drug designated a Schedule 1 controlled substance by the federal government, meaning it has no known medical uses and is as dangerous as heroin. This has been an overly restrictive classification since it was imposed in 1970, yet what's remarkable about the anti-prohibition movement is that it still hasn't prompted the government to reconsider its stance. A bill in Congress would do just that, but it also points out that there's a right way and a wrong way to proceed....

Regulatory failures have made it all too easy for recreational pot smokers to get their hands on the drug, even though that's not what California voters intended when they legalized medical marijuana in 1996. What we'd like to see is federal legislation that would treat marijuana like an ordinary prescription drug, complete with FDA oversight. Anything less would probably just add to the confusion and abuse.

February 28, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4) | TrackBack

You be the prosecutor: what state sentence should be sought for Joan Orie Melvin and her sister?

OriesRegular readers know that, often on the eve of a high-profile or unique sentencing proceeding, I urge folks to imagine being the judge and to propose a just and effective sentence for the defendant.  (See, e.g., prior "you be the judge" posts involving a rouge federal judge, a Ponzi schemer, the "Spam King", and an NBA star.)   Earlier this month, however, I generated a notable sentencing debate by changing the script via this post in which I encouraged folks to imagine being a federal prosecutor tasked with recommending a federal sentence for Jesse Jackson Jr. and his wife after it was clear that they intend to plead guilty to political corruption charges stemming from their misuse of campaign finance monies.  (See "You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?".)

As the title of this post reveals, I think it valuable to encourage readers again to think as a prosecutor about sentencing recommendations for political corruption.  But, as explained via this local story, "Judge sets May 7 sentencing for Joan Orie Melvin," the high-profile upcoming sentencing I have in mind is in state court and concerns a prominent state jurist and her sister after a trial conviction on multiple charges:

Allegheny County Judge Lester Nauhaus has scheduled suspended Supreme Court Justice Joan Orie Melvin's sentencing for May 7, the judge's staff said Wednesday.

A jury on Feb. 21 found Melvin, 56, of Marshall guilty on six criminal charges dealing with her misuse of state-paid employees to campaign for a seat on the high court in 2003 and 2009. The jury deadlocked on a seventh charge of official oppression.

The jury also convicted her sister and former staffer, Janine Orie, 58, of McCandless on six related charges.  Information on her sentencing date wasn't available.  A third sister, former state Sen. Jane Orie, 51, of McCandless is serving 2 1⁄2 years to 10 years in state prison on similar charges.

Obviously, the exact specifics of the crimes and the political positions of Jesse Jackson Jr. and Joan Orie Melvin are quite different.  Nevertheless, the underlying criminal behavior is arguably similar, as is the basic background of the offenders in relevant respects (e.g., both convicted defendants came from prominent political families, had a record of electorial success, and have considerable parental responsibilities).  Of course, Jackson Jr. and his wife are due to be sentenced in the federal no-parole system in which judges must impose exact sentences subject only to a 15% reduction for good prison behavior, whereas Melvin and her sister are to be sentenced in the Pennsylvania with-parole system in which judges general impose sentences in term of broad ranges.  Further, the Jacksons pleaded guilty and have expressed remorse, whereas Melvin and his sister both execised their trial rights and were found guilty on nearly all charges by a jury.

Differencea aside, I am eager to hear what readers think state prosecutors ought to be recommending as a sentence for Joan Orie Melvin and her sister.  Do you think they merit a longer or shorter sentence that what the Jacksons are facing?  Do you think the fact that state sentencing in Pennsylvania involves possibility of parole should lead to state prosecutor to urge for a much longer sentence in the Melvin case than federal prosecutors are urging in the Jackson case?  Do you disagree with my general notion that these crimes are in some ways comparable given that they were prosecuted in different jurisdictions (even though, I think, the feds could have prosecuted both cases)?

I raise these points not only because I see high-profile, white-collar sentences as provide a great setting for debating sentencing issues, but also because I think efforts to compare the sentencing treatment of seemingly similar defendants can often distract from the task of seeking to impose the most just and effective sentence for a singular defendant.  Ergo my interest in reader views on both the upcoming sentencing in this high-profile state political corruption case and how it should be compared to the upcoming sentencing of the Jacksons in federal court.

Recent related posts:

February 28, 2013 in Celebrity sentencings, Purposes of Punishment and Sentencing, Race, Class, and Gender, State Sentencing Guidelines, White-collar sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Wednesday, February 27, 2013

"Marijuana poll: Californians' support for legalizing pot at record level"

Cal pot polThe title of this post is the headline of this notable new local report on a notable new poll in California.  Here are highlights (with a few details emphasized):

Californians support legalizing pot in greater numbers than ever -- and they want the federal government to cool it with the crackdowns on medical marijuana dispensaries.

In a Field Poll released Wednesday, California voters, by a margin of 54 percent to 43 percent, supported allowing legal sales of marijuana, as long as restrictions are in place on age, driving under the influence of the drug and licensing those who sell it.  That represents the highest level of support since the Field Poll began asking the question 44 years ago, when most California believed pot was the gateway drug to more hurtful substances.

Only 13 percent of California adults supported legalizing marijuana in 1969 -- the year of Woodstock.   "Now, we're getting to the point where baby boomers have lived with this stuff for most of their lives," said Mark DiCamillo, director of the Field Poll.

Two-thirds of 834 registered voters said they opposed the Obama administration's raids on medical marijuana outlets, in which nearly 200 dispensaries -- most in California -- were targeted in President Barack Obama's first term.  Local governments have taken cues from the administration: Two hundred cities and counties have banned medical marijuana dispensaries.   The state Supreme Court is poised to issue a ruling on whether local governments can shut down dispensaries.

Nearly three-fourths -- 72 percent -- of Californians back the state's existing medical marijuana law, approved by voters in 1996. And a strong majority -- 58 percent -- would support allowing medical marijuana dispensaries in their own community.  "Certainly, it's a rebuke of the Obama administration's tactics," said Kris Hermes, a spokesman for Oakland-based Americans for Safe Access, a medical marijuana advocacy group. "It should indicate that the Justice Department's tactics are unacceptable and should be reconsidered."

Obama once criticized President George W. Bush for his aggressive approach to shutting down medical marijuana dispensaries.  But Obama is on pace to exceed Bush's record of medical marijuana busts.

Though voters support medical marijuana, just over two years ago they rejected a ballot measure to legalize pot, Proposition 19, by a 53 to 47 percent margin.  Legalization had only narrow support -- 50 to 46 percent -- in a Field Poll four months before that election, and the measure's chances for success were derailed by what political analysts called a lackluster campaign and a vague regulatory plan.   Well-run campaigns and more detailed regulatory plans led to pot legalization last November in Colorado and Washington state.

A coalition of Proposition 19 supporters met in December to discuss potential future California ballot measures.  They've said that they're targeting the 2016 presidential election ballot, though they haven't ruled out putting it on the ballot in 2014.

A younger and more tolerant electorate is changing the political landscape.  Among voters between the ages of 18 and 29, legalization has a 58-39 edge; among 30- to 39-year-olds, it has a 61-38 percent advantage.  Voters 65 or older are the least likely to support legalization, with only 43 percent in favor and 52 percent against.

Independent voters most strongly support legalization, at 59 percent, closely followed by Democrats, at 58 percent. Only 42 percent of Republicans favor legalization. And Latinos are just as against it, with only 41 percent in favor. But Latinos between the ages of 18 and 39 support it, 53 to 47 percent.  Only 30 percent of Latinos 40 and older support legalization....

The poll, taken Feb. 5 to 17, has an overall margin of error of plus or minus 3.5 percentage points.

This poll is significant for any number of reasons, especially with word coming from AG Eric Holder that the US Justice Department would issue "soon: some guidance on how it plans to treat states that have legalize marijuana (details here). The fact that a heavy majority of voters in California do not like the "tough love" approach taken by the Obama Administration to date before will help that Administration consider alternatives.

The poll data points I have highlighted are meant to stress reasons why I think all political candidates on all sides of the aisle will soon start realize that strong support for strong federal pot prohibition efforts is now full of political risks. Younger and independent voters are critical constituencies for winning elections now and especially into the future, and there is especially good reason to believe that views on pot policy will be quite salient and important to these constituencies in coming elections. As I have said in prior posts, any and all Republicans concerned about their "national brand" might be very wise to start talking up (as Paul Ryan did in the last election cycle) the idea of leaving pot policies up to the states and getting the feds out of the pot prohibition business.

February 27, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

US Sentencing Commission releases big new report on federal child porn sentencing

As reported in this official press release, this morning "the United States Sentencing Commission submitted to Congress its comprehensive report examining federal sentencing policy in child pornography cases." Here is more from the press release, which serves as a partial summary of the 468-page(!) report (which is available in full here):

Although still only a small percentage of the overall federal caseload, child pornography prosecutions have grown significantly during the past decade and now account for nearly 2,000 federal cases each year.  That growth reflects the increasing role of the Internet in child pornography offenses.  Before the Internet, law enforcement officers had significantly curtailed the child pornography market in the United States.

Significant technological changes in offenders’ conduct have occurred since the federal penal statutes and sentencing guidelines for child pornography offenses were last amended comprehensively a decade ago.  Child pornography offenders today typically use Internet technologies such as peer-to-peer file-sharing programs that enable offenders to distribute, receive, and collect child pornography images more easily and in greater quantities than when the current penalty structure was established.  Several penalty enhancements in the guidelines for child pornography offenses,such as use of a computer, now apply to typical offenders.  As a result, prison sentences for efendants convicted of federal child pornography offenses have almost doubled in the last decade to approximately five years for possession and 11 years for receipt and distribution.

Judge Saris concluded, “Because of changes in the use of Internet-based technologies, the existing penalty structure is in need of revision.  Child pornography offenders engage in a variety of behaviors reflecting different degrees of culpability and sexual dangerousness that are not currently accounted for in the guidelines.”

The Commission’s study found that approximately one in three federal child pornography offenders had a known history of engaging in illegal sexual misconduct prior to or in conjunction with their federal child pornography offenses.  Such illegal behavior ranged from sexual assaults against children to “non-contact” sex offenses such as soliciting self-produced sexual images from minors in on- line communication. The Commission’s recidivism study also concluded that approximately 7 percent engaged in illegal sexual misconduct after serving their sentences for federal child pornography offenses.  Both figures should be considered conservative because such offenses are underreported....

Judge Saris stated, “The Commission will continue to study child pornography sentencing practices, and looks forward to working with Congress on developing a sentencing scheme that serves to better distinguish offenders, thereby reducing unwarranted sentencing disparities in these serious crimes.”

All the pieces of this important new report are available via this link. The press release summary alone suggests there is considerable food for sentencing thought in this important new USSC report, and I am going to start my view by reading closely the 26-page executive summary available here.

I expect a lot more posts on this topic will following the days ahead. And in addition to digging into the substance of this report, I also will be keeping on eye on how federal officials in other branches and the media respond to what the USSC has to say.

February 27, 2013 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

AG Holder indicates federal response to state marijuana reforms coming "soon"

As reported in this piece from The Hill, "Attorney General Eric Holder promised Washington and Colorado state attorneys general on Tuesday that the Justice Department would issue its verdict 'soon' on how it plans to treat the states’ recent moves to legalize marijuana." Here is more from the report:

“We’re still in the process of reviewing both of the initiatives that were passed,” said Holder, speaking at the National Association of Attorney General annual conference in Washington, D.C.

“You will hear soon. We’re in the last stages of that review and we’re trying to make a determination as to what the policy ramifications are going to be, what our international obligations are — there are a whole variety of things that go into this determination — but the people of [Colorado] and Washington deserve an answer and you will have one soon.”

Holder was responding to Colorado state attorney general John Suthers, who asked the nation’s top law enforcement official when the DOJ would be weighing in on the state laws that have been in effect for nearly two months. The DOJ is charged with enforcing the federal prohibition on marijuana, and the state laws run counter to the long-existing ban, creating a debate over which law should be enforced and which law is most responsive to the will of the people.

Marijuana has been a centerpiece of the federal government’s “war on drugs,” aimed at cracking down on drug use in the United States. But the growing number of people who support the decriminalization of pot — which is still legally classified nationally in the same category as heroin — has some policymakers in Washington, D.C., rethinking their approach.

On Monday, nearly a dozen House Democrats introduced several bills that would decriminalize marijuana and remove the drug from the list of controlled substances, while requiring the federal government to regulate it and impose penalties on tax-evaders.

February 27, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2) | TrackBack

"Sequestration Will Wreak Chaos On U.S. Federal Prisons"

The title of this post is the headline of this very interesting new piece from Business Insider.  Here are excerpts:

Sequestration will hit each and every aspect of the U.S. government, but for the Bureau of Prisons, the impact could be horrifying. According to the Attorney General's office, the federal Bureau of Prisons (BOP) will have to handle a rising number of inmates with a major budget reduction, a cut of $338 million.

And while other agencies can find ways to do more with less — for example, by reducing procurement, enacting hiring freezes or cutting services — BOP has to maintain constant security at federal prisons around the country with even less money. The solutions will not be pretty.

In an email to Business Insider, a spokesperson from the Department of Justice said that they are "acutely concerned about staff and inmate safety should sequestration occur." The Department indicated that it may at times maintain a minimum level of staff for security purposes, and that lock-downs may be required.

The Bureau oversees 188 facilities and contracts 16 facilities out to private prison companies.  Currently, there is a grand total of 217,249 inmates in the federal prison system, a number BOP expects to rise to 229,300 by the end of 2013. In 2012, the BOP had a budget of $6.6 billion, with 41,310 employees. Correctional officers make up around half of the staff, with 19,756 employees in 2012.

According to DOJ, the sequester budget cuts will result in 5 percent reduction in the Bureau's workforce, which will be achieved by freezing future hiring and furloughing 36,700 staff for an average of 12 days. This means that almost every employee will have to go home without pay for some time, leaving BOP to function at unnecessarily low security levels.

Attorney General Eric Holder indicated that this reduction in force would endanger the lives of staff and inmates. According to the Attorney General, the BOP will have to implement full or partial lock downs across the board. In a letter to Senate Appropriations Chair Barbara Mikulski (D-Md.), Holder said "This would leave inmates idle, increasing the likelihood of inmate misconduct, violence, and other risks to correctional workers and inmates."

Complicating all of this is the fact that the federal prison system is already severely overcapacity. According to the 2012 Justice Department annual report, the system is 38 percent overcapacity, a problem that the Department has identified as a major weakness. But efforts to find a solution will be thwarted by the sequester.

In 2013, the BOP was slated to activate 5 new prisons throughout the system, alleviating the crunch with 8,100 new beds. In addition to cuts in guards, those projects will have to be delayed, exacerbating the overcrowding problem further. On top of these issues, Holder reported that the BOP will be forced to curtail or cancel some of the crucial rehabilitation programs that bring long term savings to the criminal justice system....

Jesselyn McCurdy, an attorney at the American Civil Liberties Union who specializes in civil liberties in the criminal justice system, is very concerned about the impact that the cuts will have on inmates. “"Sequestration could result in disaster for people in federal prisons who already live in dangerously overcrowded conditions,”" McCurdy said.

The private prison industry, which is largely dependent on federal contracts, is also worried about the cuts. Damon Hininger, CEO of Corrections Corporation of America, one of the largest private prison companies, voiced these concerns on a February 14 call to investors.

Through not mentioned in this article, it is interesting to consider that the passage of reduced crack guidelines which were made retroactive likely has help prevent this bad situation from being even worse.  Absent the sentencing reductions from reduced crack guidelines passed in 2007 and 2010, the current federal prison population would perhaps already be creeping up near 250,000.

Recent related post:

February 27, 2013 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (13) | TrackBack

Tuesday, February 26, 2013

New poll indicates most Maryland citizens do not support death penalty repeal efforts

This new article, headlined "Washington Post poll finds most Marylanders in favor of death penalty," reveals that the on-going effort by many elected Maryland representatives to repeal the state's death penalty runs contrary to current public opinion in the state. Here are the basic (which includes a link to the poll data):

A majority of Marylanders want to keep the death penalty on the books despite widespread skepticism across the state about whether capital punishment is a deterrent to murder or is applied fairly, a new Washington Post poll has found.

Sixty percent of adults in the poll say that Maryland law should allow for the death penalty, while 36 percent support replacing it with life in prison without the possibility of parole....

Gov. Martin O’Malley (D) has made repeal of the death penalty a top priority in the 90-day legislative session. Debate could begin in earnest on the issue later this week in the Senate, where a narrow majority of members are on record supporting O’Malley’s repeal bill. Prospects in the House of Delegates are also considered strong.
Some of the arguments O’Malley is making appear to resonate among Marylanders. By nearly 2 to 1, those polled say that the death penalty is not a deterrent to murder and does not lower the murder rate.  And most who respond that way say they feel strongly about their view.  Moreover, nearly one-third of Marylanders — including nearly a half of African Americans — say capital punishment has been applied unfairly in the state. That’s another argument O’Malley has advanced in a state where five men sit on death row but no executions have taken place since 2005.
Yet even when those arguments are stated explicitly, as well as questions that critics have raised about the morality of capital punishment, support for repeal is tepid among the public — which could ultimately decide the issue.  If a repeal bill passes the General Assembly, opponents are expected to take advantage of a provision in the state Constitution that allows citizens to petition new laws to the statewide vote.  If enough signatures are collected, the issue would appear on the ballot in November 2014....
There are deep divisions over the death penalty based on party affiliation, race, gender and other demographics.  More than half of Democrats oppose capital punishment, while three-quarters of Republicans support it.  About six in 10 men support the death penalty, while women are nearly evenly divided. Whites support capital punishment by a margin of about 2-to-1, while a majority of African Americans are opposed....
The Post poll was conducted Feb. 21-24, among a random sample of 1,156 adult residents of Maryland. The results from the full survey have a margin of error or plus or minus 3.5 percent.

February 26, 2013 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1) | TrackBack

Another big SCOTUS criminal justice day on tap

As reported in this prior post, yesterday proved a notable SCOTUS day for fans of intricate federal criminal procedure (though likely for few others).  But today is one I had long noted on my calendar because these two cases (summaries/previews via SCOTUSblog) due to be argued should be of special interest for sentencing fans:

Peugh v. United States

Issue: Whether a sentencing court violates the Ex Post Facto Clause by using the U.S. Sentencing Guidelines in effect at the time of sentencing rather than the Guidelines in effect at the time of the offense, if the newer Guidelines create a significant risk that the defendant will receive a longer sentence.

Argument preview: Are federal Sentencing Guideline amendments “law” or merely “advice” when applying the Ex Post Facto Clause?

 

Maryland v. King

Issue: Whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged with serious crimes.

Argument preview: Crime, technology, and privacy

UPDATEThe transcript in Peugh v. United States is now available here, and the transcript in Maryland v. King is now here.

February 26, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, February 25, 2013

"Mass Incarceration at Sentencing"

The title of this post is the title of this interesting looking new paper by Anne Traum now available via SSRN. Here is the abstract:

Courts can address the problem of mass incarceration at sentencing.  Although some scholars suggest that the most effective response may be through policy and legislative reform, judicial consideration of mass incarceration at sentencing would provide an additional response that can largely be implemented without wholesale reform.  Mass incarceration presents a difficult problem for courts because it is a systemic problem that harms people on several scales — individual, family, and community — and the power of courts to address such broad harm is limited.

This Article proposes that judges should consider mass incarceration, a systemic problem, in individual criminal cases at sentencing.  Sentencing is well suited to this purpose because it is a routine phase of a criminal case when courts have great flexibility to individualize punishment based on individual and systemic factors.  In this phase, judicial discretion is at its highest, the judges’ contact with defendants is most direct, and the court can consider the broadest information relevant to sentencing options and impacts.

Mass incarceration can be viewed as a systemic concern that is relevant to both the defendant’s history and the traditional sentencing purposes — including the need to benefit public safety and to ensure that sentences are fair and just.  Information about mass incarceration would enhance courts’ understanding of the impacts of sentencing on the defendant and others in the local community.  This Article articulates how this can be accomplished in federal sentencing and suggests doctrinal and practice changes that would enhance courts’ capacity to consider and mitigate the harms of mass incarceration in individual cases.

February 25, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (13) | TrackBack

Another notable sign of our modern legal on-line times (and a suggestion)

Gannett HouseVia the always timely How Appealing, I came across this new Harvard Crimson piece headlined "Harvard Law Review Increases Online Presence." Here is the heart of the report:

The Harvard Law Review will more than double the number of editors focusing on online content for the publication next year in an effort to expand its web presence.

Increasing the online staff from two to five, these new editors will join the Forum Committee, which is responsible for developing the website and editing the material published online.  In the next year, the Law Review hopes to enhance the functionality and design of its website in addition to increasing the quantity of published content, according to second-year Law School student Gillian S. Grossman ’10, the recently elected president who will lead 127th Volume of the organization....

The majority of returning editors voted to add two additional students to this year’s pool of rising editors in order to expand the online content while maintaining the quality of the current print operations, according to Grossman.

The Law Review will also grow the amount of material published online in an effort to increase the resources available for scholarly research.  “The Law Review recognizes that legal conversations and legal scholarship are taking place online in addition to print mediums,” Grossman wrote in an email.  “The Law Review’s Forum provides a platform for authors to engage with the articles we publish in our print issues and to engage with current legal developments through various forms of online scholarship.”

In line with this mission, the Law Review began publishing its print materials online in 2006.  The organization also created a “Forum” section on its website where contributors can write exclusively online content.  In the past, these articles have come in the form of “Responses,” approximately 2,500 word pieces written in response to articles published in the print journal.  With the new push towards expanding the Law Review’s web presence, the “Forum” will also begin publishing “Reactions,” shorter pieces commenting on recent developments in the law, as well as other scholarly essays.

I am always quite pleased to see any and all efforts from the folks at Gannett House to continue to innovate with the form and function of modern legal scholarship.  And, ever eager to encourage my favorite kinds of engagement "with current legal developments through various forms of online scholarship," I will make one big suggestion for the new HLR leaders: try to use the new on-line spaces to try to cover much more state "developments in the law" both legislative and judicial (and, to make me really giddy, give special attention to state criminal justice developments).

February 25, 2013 in On blogging, Recommended reading, Who Sentences? | Permalink | Comments (2) | TrackBack