Wednesday, February 13, 2013

Notable commentary on "Christopher Dorner and the California Death Penalty"

Noted legal commentatory Jeffrey Toobin has this notable new commentary at The New Yorker on a high-profile murder case that seems to have resolved itself in the state with a highly-dysfunctional capital punishment system.  Here are excerpts:

At this moment, it looks like Christopher Dorner, the ex-L.A.P.D. officer who’s been terrorizing Southern California for the past week, died on Tuesday in a confrontation with his pursuers.  A San Bernardino deputy sheriff was also killed; Dorner has already been charged with the murder of another officer, and is alleged to have killed two other people. In a lengthy post on Facebook last week, Dorner said that the motive for his rampage was an unjust dismissal from the L.A.P.D. several years ago.

If Dorner didn’t die (and is later caught), we can be sure that one or more district attorneys will seek to have him executed. And thus the nation would be forced to confront one of the biggest fiascoes in the American legal system — the death penalty in California.

It’s possible for reasonable people to hold differing opinions on the death penalty. (Over the years, I’ve had several different ones myself.) But what’s going on in California represents the worst of all worlds — a massively expensive Potemkin operation in which hundreds of people are sentenced to death and no one is ever executed....

There are several reasons that the system in California has ground to a halt. The 1978 voter initiative that restored the death penalty sent all appeals directly to the California Supreme Court, bypassing the intermediate appeals courts.  This has created a huge backlog at the state’s highest court.  Moreover, challenges to the method of execution have led to a de facto moratorium on executions since 2006.  That impasse continues.

The root of the problem, in California and elsewhere, is that, as the Supreme Court has often said, death is different.  The finality of capital punishment requires special safeguards against errors in the judicial process.  But if a state takes those safeguards seriously, as California does, the process can become never-ending.  Death-row exonerations, through DNA evidence and other means, have provoked even greater scrutiny of the cases of those who remain.  And the state’s oxymoronical quest to kill people in a humane fashion turns out to be difficult indeed.  All of this leads to delay.

And to enormous expense: many studies have shown that the death penalty is far more costly to taxpayers than a maximum sentence of life in prison without the possibility of parole....

If Dorner is dead, few will mourn him.  But anyone who has thought that his murderous spree — or the next spectacular California crime — would lead to a restoration of executions is very much mistaken.  The death penalty is already over in California in fact; it may take a little while longer to be gone in law, too.

I suspect lots of different readers will have lots of different reactions to this commentary (including to some of the more abolitionist-leaning sections I have not reprinted above).   Ever the iconoclast, I will make the point that the Dorner case provides another great example, in my view, of the kind of  "national" mass murder case which could and should be prosecuted (exclusively?) in federal court if he were still alive and responsible officials decided his case should be subject to a capital charge.

Recent and older related posts on use of the federal death penalty:

February 13, 2013 in Death Penalty Reforms, Offense Characteristics, Who Sentences? | Permalink | Comments (24) | TrackBack

"Prosecutorial Discretion under Resource Constraints: Budget Allocations and Local Death Charging Decisions"

The title of this post is the title of this new empirical paper recently posted on SSRN and authored by Greg Goelzhauser. Here is the abstract:

Do prosecutorial resource constraints influence death-charging decisions?  Prosecutors typically contend that death-charging decisions are made independent of budget considerations, and the limited empirical evidence supports this view.  Using new data on death-charging decisions from 301 prosecutorial districts across 34 states, the results presented here suggest that the conventional wisdom is wrong.  The probability of facing a death charge is higher in prosecutorial districts with larger budgets.  The results inform our understanding of the politics of prosecutorial behavior and the policy debate over capital punishment.

February 13, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Hawaii house extinguishes bill proposing full legalization of marijuana

There had been some notable buzz that Hawaii could become the first state with a legislative body voting to legalize recreational marijuana (as opposed to the voter iniatives which brought legal reform in Colorado and Washington).  But, as this AP article reports, a "bill that would have legalized marijuana in Hawaii has died in the state House."  Here is why and the surrounding debate:

House judiciary committee Chairman Karl Rhoads said Tuesday that he decided to kill the bill after learning from House leadership that the initiative does not have enough votes to pass the House. Key lawmakers in the Democratic-controlled House supported the measure, including the speaker and the majority leader.

Pamela Lichty, head of the Hawaii Drug Policy Action Group, says the organization is disappointed with the outcome but will continue to advocate for marijuana decriminalization through other measures. She says that the fact that there were more than 20 marijuana-related bills introduced this year is a sign of public support for the initiative. She says the organization plans to continue to advocate for bills related to medical marijuana, which is legal in Hawaii.

The proposal that failed Tuesday would have legalized marijuana for recreational use for people aged 21 or older. It can’t be revived until future sessions. The initiative ignited an outpouring of public testimony that reflected sharply divided public opinion.

At a public hearing on the bill, law enforcement officials told Hawaii lawmakers that marijuana is a dangerous drug. They said the societal costs of legalizing weed aren’t worth the risks of allowing marijuana culture to proliferate. Opponents of the bill included the state attorney general, the county police departments and the Coalition for a Drug-Free Hawaii.

Numerous community members voiced opinions in favor of legalization, including the American Civil Liberties Union of Hawaii. Proponents said the move would conserve state resources and respect residents’ freedom of choice. They said the state’s current law against marijuana disproportionately impacts Native Hawaiians and other minority groups.

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

Tuesday, February 12, 2013

"How Crazy Is Too Crazy to Be Executed?"

The question in the title of this post is the main headline of this new Mother Jones essay authored by capital defense attorney Marc Bookman.  The lengthy piece carries this summary subheadline: "The voices told Andre Thomas to gouge out his eyes. But even that hasn't convinced the state of Texas to reconsider his death sentence." 

This companion piece, also authored by Marc Bookman, is headlined " 13 Men Condemned to Die Despite Severe Mental Illness: If juveniles and intellectually disabled people are ineligible for execution, why not paranoid schizophrenics?".  Here is how that piece gets started as an introduction to summaries of 13 capital cases involving defendants with severe mental illness:

Just how crazy must a person be to be ruled incompetent for execution in the United States?  Being profoundly mentally ill is not enough. You have to be deemed legally "insane."  At trial, the insanity defense generally hinges on a person's inability to distinguish right from wrong or understand the "nature and quality" of his act.  In the context of an impending execution, insanity means you cannot rationally comprehend that you are being put to death as a consequence of the crime you committed.

In 2005, a Texas jury found that Andre Thomas, the subject of my in-depth companion piece (see box below), was not insane at the time of his crime.  To put this in context, consider that Thomas was then, and still is, a delusional paranoid schizophrenic who hears voices — from God, he believes — telling him to do things.  He carved out the organs of his four-year-old son, his estranged wife, and her 13-month-old daughter, and took them home in his pockets, believing that this would kill the demons inside them.  In the days following his arrest, he insisted to a jailhouse nurse that his victims were still alive.

And that's not even the weirdest part of the story.  Thomas' case is on appeal in federal court, and as it stands, the courts cannot even address the question of whether he is competent to be executed until he is about to be.  But should someone as obviously crazy as Andre Thomas be facing execution at all?  Over the past decade, US courts have barred the death penalty for the intellectually disabled and for juveniles — the Supreme Court found that they have less culpability due to their lower mental functioning and immaturity. Many legal observers believe that barring the death penalty for the severely mentally ill, given their dissociation from reality, is the next frontier in capital jurisprudence.

Over the years, governors from both parties have seen fit to commute the death sentences of profoundly mentally ill prisoners, even in conservative states. But authorities in Texas have shown little mercy: The state Board of Pardons and Paroles has recommended clemency based on mental illness in only one case since 1977, when the death penalty came back into use (see Kelsey Patterson below) — and Gov. Rick Perry denied it.

February 12, 2013 in Death Penalty Reforms, Offender Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (22) | TrackBack

Monday, February 11, 2013

Disparate stories price out (some) costs of poorly functioning state criminal justice systems

How Appealing had links this morning to these two notable criminal justice stories that, on the surface, seem disparate in their settings and messages:

"Tab for wrongful convictions in Texas: $65 million and counting; State the most generous in compensating exonerees; legislators ponder changes to safeguard against future false convictions." Mike Ward has this article today in The Austin American-Statesman.

"AP Exclusive: Inmate lawsuits cost Calif. $200M." The Associated Press has a report that begins, "Gov. Jerry Brown has begun aggressively challenging federal court oversight of California's prison system by highlighting what he says is a costly conflict of interest: The private law firms representing inmates and the judges' own hand-picked authorities benefit financially by keeping the cases alive."

Much can and should be said about both of these interesting reports, but the title of this post is meant to highlight one commonality: for lots of different reasons and in lots of different ways, it can often become quite costly, even when measured just in pure economic terms, whenever any aspect of a state criminal justice system is run poorly. 

February 11, 2013 in Data on sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

"Doors swing open for advocates of marijuana legalization on Capitol Hill"

The title of this post is the headline of this notable new piece from The Hill. It gets started this way:

Advocates for the legalization of marijuana plan to step up their political giving and lobbying efforts now that members of Congress are taking an interest in changing federal drug laws.

The lobbyists say lawmakers who wouldn’t give them the time of day are suddenly interested in meeting with them and introducing legislation following the approval of ballot initiatives in Colorado and Washington that legalized recreational use of the drug.

“These were folks who wouldn't take a call five years ago and now they are calling us and telling us to get up there with our PAC money and our expertise,” said Allen St. Pierre, executive director for the National Organization for the Reform of Marijuana Laws (NORML). “For those of us who have been at this for the past 20 years, it has been nice to see the warm turn.”

The piece also includes a number of important observations on various fronts, particularly about fundraising and voting blocs, which are sure to impact political realities in the years ahead:

As the movement for marijuana legalization spreads, competition for fundraising dollars is likely to grow.  A number of well-heeled donors have already opened their wallets for the cause. New Approach Washington, the main group that campaigned for legalization in that state, took in more than $6 million in contributions last election cycle.

The prolific liberal donor Peter Lewis gave more than $2 million to New Approach Washington for their legalization campaign, according to state campaign finance records. Drug Policy Action — the 501(c)(4) affiliate of Drug Policy Alliance — contributed more than $1.6 million. George Soros sits on Drug Policy Alliance’s board of directors and was a major donor to Drug Policy Action in 2012.

Lobbyists say the battle that is brewing over drug laws will be far-reaching and not confined to recreational use of marijuana.  “You going to see reform on federal drug policy in general,” said Bill Piper, director of national affairs for the Drug Policy Alliance. “It's not just about marijuana. It's about racial disparity, over-incarceration and saving money as well.”

Capitol Hill has certainly taken notice.  Reps. Jared Polis (D-Colo.) and Earl Blumenauer (D-Ore.) each introduced separate bills this past week that would regulate and tax marijuana like alcohol.  The two lawmakers also released a report on how to rethink federal marijuana policy.  On the other side of the Capitol, Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, plans to hold a hearing on marijuana policy this Congress.

Drug laws are also getting a second look from the GOP, with Kentucky Republicans rallying behind industrial hemp.  Rep. Thomas Massie (R-Ky.) introduced legislation this past week to exclude hemp from the Controlled Substances Act’s definition of marijuana. Senate Minority Leader Mitch McConnell (R-Ky.) has backed that effort, saying he became convinced that hemp production would be good for his state after long discussions with the libertarian Sen. Rand Paul (R-Ky.).

Lobbyists don’t expect a marijuana legalization bill will be on President Obama’s desk this Congress, but lawmakers know they will have to reconcile federal policy at some point with the legalization movement sweeping the states.  “I often tell elected officials that if you are going to remain relevant in politics, you are going to have to move towards drug policy reform because that's where the younger voters are,” Piper said.

One Democrat said he’s made a personal appeal to Obama — who has admitted to smoking marijuana as a teenager — for changes to federal policy.  “I raised the issue myself with the president at the Democratic retreat [on Thursday]. … It should change,” Rep. Steve Cohen (D-Tenn.), noting thousands of people are in jail for marijuana use.

Cohen plans to introduce legislation to create a commission to study states where medical marijuana and marijuana have been legalized.  Advocates believe the bill could attract White House support. “The commission gives the president some maneuvering room by affording him time and his administration acknowledges that public attitudes about this have changed,” St. Pierre said.

Though it is hard not to start thinking about funny names and acronyms for a new federal pot panel, I think a legislatively created commission tasked with reviewing and assessing marijuana reform options and realities is a fantastic ideas.  There is already buzz of competing claims by partisans about the pros and cons of marijuana reform efforts at the state level, and a national commission created by Congress may have a unique ability to sort through a haze of advocacy more effectively than more partisan players or any state-level actors.

February 11, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Talk in Chicago of increasing mandatory minimum sentences for gun possession

Chicago gunsAs reported in this new local article from Chicago, that city's "mayor, cops and prosecutors are taking aim at Illinois’ gun possession laws — calling for longer mandatory prison terms and 'truth in sentencing'." Here are some of the details of the proposal and the sentencing debate is has started to engender:

Their wish list includes boosting the minimum required sentence for people convicted of gun possession from one year in prison to three years. They hope to increase the minimum sentence for felons caught with guns from two years to three years.

They also want everyone convicted of felony gun possession to be required to serve 85 percent of their sentences. Now those inmates must complete only half their terms — and sometimes much less after earning “good time” in prison.

Cook County State’s Attorney Anita Alvarez said the proposed reforms would deter more people from carrying guns illegally and would help curb violence. “The guys who are doing the shootings would be away from the corners for a longer time,” Alvarez said in an interview.

Mayor Rahm Emanuel, whose office drafted the legislative proposals, is expected to announce them Monday with Alvarez and other officials. “Criminals continue to escape with minor sentences for possessing and using firearms,” Emanuel said in a prepared statement.

For months, police Supt. Garry McCarthy has proposed lengthening the mandatory sentence for gun possession to three years, pointing to New York City, where he was once a high-ranking cop. The state of New York passed a 3½-year mandatory minimum sentence for illegal gun possession in 2007. The following year, NFL star Plaxico Burress was arrested after a handgun he was carrying accidentally discharged and shot him.

Burress pleaded guilty to a lesser offense and was hit with a two-year jail term, drawing national attention to New York City as a place that cracks down on illegal gun possession. Criminologists point to the mandatory gun sentence in New York as one of the reasons for the Big Apple’s continuing decline in violent crime.

Chicago — whose murder tally rose 16 percent to 506 last year — has about three times as many murders per capita as New York. Also, about 85 percent of murders in Chicago involve a gun, compared to about 60 percent in New York.

While the cops and prosecutors in charge of locking up criminals support lengthier sentences, one judge said the General Assembly — and the public — need to think hard before making the gun laws harsher. “As a taxpayer of this state, I would hope the legislators are cognizant that creating mandatory minimum sentences creates a financial consequence to the state,” said Cook County Judge Nicholas Ford.  “A lot of judges bristle at mandatory minimum sentences.  It’s not my position to question it.  It’s my job to enforce whatever the legislature forwards me.

“But for a person who’s never been convicted of a felony, for a person who’s never committed a violent crime, for a taxpayer who’s never had any problems with the law, I wonder about that,” Ford said.

Alvarez responded that few people without criminal backgrounds are charged with felony gun possession in Cook County.  “You will see that once in a while, but that is when our discretion [as prosecutors] comes into play in charging and in looking at cases once they’re in the system,” she said.

Supporters of mandatory minimum sentences say they also provide a predictable outcome. Indeed, a Chicago Sun-Times examination found wide disparities in how often Cook County judges put people behind bars for gun possession before mandatory minimum sentences fully took effect in early 2011.

Ford, for example, sentenced 42 defendants for gun possession and sent about 76 percent to prison. About 21 percent received probation and 2 percent went to boot camp. The length of his average prison sentence was almost two and a half years. Judge Michael Brown, meanwhile, sentenced 45 defendants. About half went to prison, 23 percent received community service, 18 percent probation and 5 percent boot camp. But the length of his average prison sentence was more than three years.

Overall, Cook County judges sent nearly three-quarters of such defendants to prison for an average sentence of almost two and a half years.  About 14 percent got probation, 6 percent boot camp and 4 percent community service.  The newspaper studied 2011 sentencing outcomes in felony gun possession cases that didn’t include other types of crimes.

Many of those cases involved 2010 arrests, which didn’t apply to the mandatory minimum sentences that took effect in 2011. A separate law that took effect in late 2009 requires a minimum sentence of three years for gang members convicted of carrying a loaded gun.

The Sun-Times analysis found that judges sometimes sentenced defendants to Cook County boot camp — a four-month program with eight additional months of strict supervision. Ford called boot camp a “really solid disposition” for younger defendants without a felony record or violent background.

But Alvarez said she doesn’t think judges should have the option to sentence such defendants to boot camp. “It’s not ‘pen’ time,” she said. “I think the law is clear that they should not be giving boot camp, but judges see it a different way.”

Alvarez said she’s considering discussing the matter with Cook County Chief Judge Timothy Evans and “seeing if there’s something we need to change legislatively — or litigate it.” As Alvarez and other politicians pursue tougher gun laws, one man convicted of illegal gun possession surprisingly said they’re right.

Matthew Munoz, 24, was arrested in 2011 after he and his pals got into a squabble with rival gang members on the South Side.... Munoz was eligible for probation because his crime happened in 2010, before the one-year mandatory minimum took effect. He was sentenced to two years’ probation, but after one year he messed up when he tried to foil a drug test.

Munoz was sent to prison. But because he got credit for time he spent in the Cook County Jail, he said he spent only one day at Stateville Correctional Center. “It’s called ‘dress in and dress out,’ ” he said.

Munoz is now on parole, which he vows to complete successfully. He plans to go to school and get a job. “Some people need prison to learn their lesson,” Munoz said. “I wish I got sent to prison a long time ago. I kept getting probation for this and that. . . . Chicago is getting out of control with the gang violence. They should send those guys to prison — even guys like me.”

As serious sentencing fans know well, and as this article helps highlight, mandatory minimum sentencing laws do not really mandate prison for all offenders.  Rather, they mostly serve to transfer the discretion as to which offenders go to prison from judges to prosecutors. 

If there is good research indicating that this transfer of discretion in the gun crime settings help to reduce illegal gun use and gun violence, I can understand why folks in Chicago and elsewhere think increased mandatory minimums should be a needed response to gun crimes and gun violence.  But, as lots of research and experience reveals in the federal system and elsewhere, having prosecutors as exercising the most sentencing discretion via mandatory minimums tends to increase sentencing disparities, not ensure that similar defendants always receive similar sentences.

Recent and older related posts:

February 11, 2013 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (16) | TrackBack

"America's prison boom is starting to fizzle"

The title of this post is the first sentence of this new Wall Street Journal article, which carries this headline and subheading: "With Fewer to Lock Up, Prisons Shut Doors: Declining Inmate Population, Partly Thanks to Softer Sentences, Spurs Some Cash-Strapped States to Close Facilities." Here are highlights:

For decades, the country had little trouble filling its ever-growing number of prisons, thanks in large part to tough-on-crime policies and harsh drug laws. But a combination of falling crime rates, softer sentences for low-level and nonviolent offenders and a dwindling appetite for hefty prison budgets has begun to whittle away at the number of people behind bars. That is allowing many states to do what a few years ago seemed unthinkable: close prisons.

Comprehensive numbers on prison closures are hard to come by. But the National Conference of State Legislatures shows that 35 adult correctional facilities in 15 states have closed in the past two years, and governors in states including Pennsylvania, New York and Illinois are pushing for more closures this year....

The closures haven't been without opposition. Corrections unions and community leaders worry about job losses and say a result could be overcrowding in the prisons that remain.

Cash-strapped states are increasingly turning to corrections budgets in search of cuts. From 1982 through 2001, state corrections budgets more than tripled to a peak of $53.5 billion, according to the Bureau of Justice Statistics. Now, spending is 9% below that level. In Illinois, Gov. Pat Quinn, a Democrat, is aiming to close four adult and three youth corrections facilities in a bid to save the state $70 million.

It isn't clear whether the nation's total prison count is shrinking. Some states, including Pennsylvania, are consolidating old facilities into new ones rather than eliminating capacity. In recent years, private-prison operators built new facilities, though analysts say the pace of construction has slowed.

Still, there does appear to be a broader shift in the corrections system. From 1990 through 2009, the number of people in state and federal prisons more than doubled to 1.6 million, while the number of prisons rose 41% to 1,821 from 1990 through 2005, according to the Bureau of Justice Statistics. Then, in 2010, the inmate population fell for the first time in nearly four decades. It fell again in 2011, the bureau said.

The declines have been uneven. Roughly 70% of the 2011 decline in state prison rolls was due to a massive drop in California's inmate population owing to a Supreme Court order that the state reduce overcrowding. Many of those inmates are now in county jails or other facilities. Some states, including Tennessee and Kentucky, saw their prison populations rise in 2011.

Still, several states are experiencing a meaningful drop. Florida, Texas, New York and Michigan each shed more than 1,000 prisoners in 2011. Each of those states closed prisons in the past two years....

Policy experts attribute the declines partly to measures aimed at reducing the number of nonviolent offenders behind bars. In New York, they cite the 2009 relaxation of the state's tough Rockefeller-era drug laws. Prison rolls in New York fell by nearly a quarter from a peak of 72,600 in 1999 to about 55,000 in 2011, the latest data available.

Texas closed a state prison for the first time everin August 2011. Until the closure, the state had built an average of more than three prisons a year since 1990, according to the Texas Department of Criminal Justice. "You've got to distinguish who you're afraid of and who you're mad at. You're afraid of child molesters, murderers and rapists," said State Sen. John Whitmire, who has helped lead an overhaul of the Texas prison system. "People like low-level offenders, you're not afraid of them."...

In rural areas, which often depend on prisons for jobs, a closure can be particularly difficult. In early January, Pennsylvania officials said they planned to shut prisons in Cresson and Greensburg and replace them with a single facility near State College. "It's going to hurt the restaurants, the hardware store, every business place here is going to be affected," said Patrick Mulhern, the longtime mayor of Cresson, east of Pittsburgh. "Five hundred employees in one fell swoop — that's an awful lot."

February 11, 2013 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8) | TrackBack

Sunday, February 10, 2013

"Plea Bargaining, Sentence Modifications, and the Real World"

The title of this post is the title of this new paper on SSRN by Julian A. Cook. Here is the abstract:

This article examines the 2011 Supreme Court decision in United States v. Freeman.  At issue was whether defendants, such as Freeman, who enter a guilty plea pursuant to a binding plea agreement, are entitled to seek a modification of their sentence when the guideline range applicable to their offense has subsequently been lowered by the United States Sentencing Commission.  By a five-to-four vote, the Court found that Freeman was eligible to seek a sentence reduction.  However, as the article explains, the concurring and controlling opinion of Justice Sotomayor may ultimately prove to be problematic for criminal defendants generally and for the Commission for many years to come.  In her opinion, Sotomayor suggests, in dicta, that the government can preempt future sentencing reduction claims through the insertion in plea agreements of waiver clauses. Should the Department of Justice adopt such a policy, the article warns of (and describes) the long-term adverse consequences that such a decision would have for criminal defendants and for ability of the Commission to achieve equity through guideline sentencing.

As part of its critique of Freeman, the article also explains why the Freeman Court erred in its analytical approach.  In so doing, it illuminates the real world of plea bargaining in the Freeman context, and explains why this plea negotiation truism provides a sounder, firmer, and clearer foundation to decide not only Freeman-type cases but any such case involving a sentence reduction claim.  The article also uses Freeman to highlight and correct a common misunderstanding about the nature of plea agreement contracts.  It explains why plea agreements have been erroneously construed as unilateral arrangements between the prosecution and the defendant, and why they should properly be interpreted as bilateral contracts involving three parties — the prosecution, the defendant and the court.

February 10, 2013 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Guest post on Amish sentencing: "A Travesty in Cleveland"

Experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) attended this past Friday's high-profile federal sentencing of the Amish defendants involved in the high-profile beard-cutting attacks in northern Ohio.  I am pleased to be able to now reprint his lengthy guest-post on the sentencing proceedings:

Living in northeast Ohio, I have encountered Amish on several occasions, usually on the road behind their horse-drawn buggies, but never in a courtroom.  Yesterday I had the opportunity to sit through perhaps the most surreal sentencing I will ever encounter. Reminiscent of the movie “Witness,” the followers of Samuel Mullet, Jr. sat on the right side, with the women wearing kerchiefs, while victims and their supporters sat on the left with the women wearing bonnets — the only apparent distinction between the two groups. The men, all in similar attire, had large, solid hands, built up from years of farming, some with flecks of mud on their clothing.  They sat quiet, subdued, and unlike the “English” present, did not speak among themselves.

These obviously were simple, passive people, involved in a serious and unfortunate dispute.  A dispute that resulted in shameful and abusive conduct by Mullet and some of his followers against other Amish: beard and hair cutting, which held religious symbolism. This conduct, while criminal, was not tantamount to the seriousness reflected in the severity of the sentences handed down.   That Mullet received a 15-year sentence for ordering the assaults, and that his remaining followers received from a year-and-a-day to 7 years, which will result in effectively orphaning a few dozen children, was the most surreal part of yesterday’s sentencing.

Given the severity of the sentences the government (incredulously sought) — in Mullet’s case, life — it was surprising that statistics were not raised during the hearing.

First, 18 U.S.C. s. 249 offenses are rarely prosecuted, and despite their high-profile nature, hate crimes generally are rarely sentenced.  While the FBI reports that in 2011 there were 6,222 hate crime incidents, per the most recent U.S. Sentencing Commission datafile, there were exactly two cases involving a 249 charge in 2011, and the hate crime enhancement at 3A1.1 was applied a mere 35 times.  Likewise, section 2H1.1 of the guidelines under which Mullet and his co-defendants were sentenced was applied only 47 times last year.  Section 2A4.1, which governs kidnapping and was the ultimate guideline the court utilized for sentencing, was applied in slightly more cases: 108 out of over 86,000 cases.  In light of recent and widespread criticism regarding the guidelines lacking empirical support, it would seem that offenses rarely prosecuted and guidelines rarely utilized in such unique circumstances as these would render any sentencing range not only questionable, but plainly inapplicable.

Second, while at a considerable variance from the advisory guideline sentence of life, Mullet’s sentence still is nearly equivalent to the median sentence for murder (189 months), and far, far greater than those for manslaughter (37 months), sexual abuse (87 months), assault (27 months) and arson (50 months).  While it is close to the median sentence for kidnapping (184 months), given that this was a kidnapping in a very technical sense (much as this was only a technical hate crime), that should have given the Court considerable pause before imposing such a draconian sentence.  Is Mullet’s offense really the equivalent of a murder and more serious than manslaughter?

Finally, Mullet is 67.  A 15-year sentence still effectively is a life sentence for him.  With an already over-crowded federal prison system and growing, Mullet’s time will be even more onerous than most in light of his age and most glaringly, his cultural and religious background, will make him highly susceptible to abuse.  Further, his age will impose additional financial burdens on the BOP, with some estimates as high as $90,000 per year. Is this an appropriate use of the public fisc?

This was an awful case from every perspective.  Why the federal government thought it was appropriate to bring criminal charges under truly unique circumstances defies explanation.  Clearly, the courts of Ohio could have (and should have) addressed this matter.  The sentences handed down merely have compounded the travesty of this prosecution.  While Judge Polster did an admirable job in detailing his reasoning — especially noting the irony of the Amish defendants trampling the very Constitution that makes their lifestyle possible — but for the absurdity of a federal sentencing system that has for years encouraged the judiciary to hand out multi-year sentences as if they are candy, one wonders how Judge Polster would have sentenced unencumbered by a sentencing regime that clearly did not contemplate the facts of this case and has otherwise run amok.

The federal government not only chose to prosecute these assaults as if they were kidnappings but hate crimes.  While technically hate crimes given the religious motivation for the assaults, the assaults, which left no permanent physical injuries, certainly were nowhere of the kind the statute was intended to address, while the punishment, ironically, was.  Indeed, the hate crime statute upon which the defendants’ convictions rested — 18 U.S.C. s. 249 — was enacted as part of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009.  Both Shepard and Byrd were the victims of the most atrocious and violent hate crimes in recent memory — Shepard tortured and left to die tied to a fence in Wyoming because of his sexual orientation, and Byrd gruesomely dragged to his death and decapitated behind a pick-up because of his race.  Sentencing these Amish assaults as if they were equivalent to the offenses suffered by Shepard and Byrd is an affront to their memories.  Hopefully the Sixth Circuit will rectify this manifest injustice.

Related posts:

February 10, 2013 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (39) | TrackBack

District judge rejects too sweet federal plea deal for long-time fraudster in Pennsylvania

A helpful reader sent along this interesting local article from Pennsylvania, eadlined "Rosetti plea rejected by judge," reports on a case in which a federal judge took the usual step of rejecting a plea deal as too lenient. Here are the details:

In a strong rebuke calling for "just punishment," a federal judge has rejected the plea agreement made by Fred Rosetti, Ed.D., former executive director of the Northeastern Educational Intermediate Unit.   The deal, which called for 12 to 18 months in prison, is not appropriate for the "defendant's longstanding, pervasive and wide-ranging criminal activities," U.S. District Judge Robert D. Mariani wrote in his order.

Dr. Rosetti, who is accused of intentionally failing to record sick and vacation days, creating false travel vouchers and ordering employees to do personal tasks for him, now has the option of withdrawing his plea and going to trial or keeping his plea and letting the judge determine his sentence.  He could also try to negotiate a new plea agreement.

"The sentence proposed by the plea agreement, as well as the agreement's other terms, do not reflect the seriousness of the offense, do not promote respect for the law and do not provide just punishment for the offense," Judge Mariani's order states.

In October, Dr. Rosetti pleaded guilty to theft and mail fraud charges in a plea deal with prosecutors that called for 12 to 18 months of imprisonment and restitution of $120,000....  A presentence investigation report completed earlier this month and prepared by the United States Probation Office "describes a 12-year pattern of abuse of public trust and executive authority for private gain."

The report, which is not available to the public but part of which is detailed in Judge Mariani's order, describes how Dr. Rosetti intentionally failed to document time off from the NEIU, in the form of vacation, personal and sick leave.  For every day he did not record, he received a larger payout....

Other actions described in the order include ... 127 fraudulent travel vouchers, which Dr. Rosetti created or ordered employees to create, at a cost of $18,106.75.  Dr. Rosetti threatened employees with the loss of their jobs if they did not oblige....

The presentence report indicates the loss to the NEIU totals $137,944.13, but the plea agreement calls for restitution of $120,000.  The difference is significant because the amount could lead to a stricter sentence under federal sentencing guidelines that call for 27 to 33 months in prison....

The report also details the defendant's attempt to "obstruct or impede the administration of justice." Dr. Rosetti has been on home confinement since contacting witnesses this spring and subsequently spent 12 nights in jail....

When Dr. Rosetti was indicted in February 2012, prosecutors said that if convicted of the most serious charges, he could have faced 10 years in prison, a $250,000 fine and the forfeiture of $240,000, the contents of two bank accounts and his Archbald home. Dr. Rosetti originally faced 13 counts of fraud, theft and money laundering.  The plea agreement Judge Mariani rejected called for Dr. Rosetti to plead guilty on two counts: Count 1, mail fraud relating to a package delivered at NEIU expense; and Count 8, theft concerning programs receiving federal funds....

A hearing has been scheduled for Feb. 21 to inform Dr. Rosetti of his options and give him an opportunity to withdraw his plea.  If he does not withdraw his plea, a sentencing hearing is scheduled for March 5.  Judge Mariani would then determine Dr. Rosetti's punishment.

The District Court's 11-page order explaining its ruling is available at this link.

February 10, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Top Texas criminal court to hear case on Miller retroactivity

Over at Grits for Breakfast, Scott Henson has this helpful post reporting on the recent decision by the top criminal appeals court in Texas to consider the application of Miller in the Lone Start state.  Here is how the post gets started:

The Texas Court of Criminal Appeals this week agreed to hear arguments in Ex Parte Terrell to determine whether the Supreme Court's Miller v. Alabama — a case which banned life without parole (LWOP) sentences for juveniles if lesser options weren't offered — applies retroactively in Texas.   As I understand it, around 28 Texas prisoners convicted of capital murder at age 17 since 2005 find themselves in that category: That's when the Legislature eliminated life without parole for juveniles 16 and under who, when convicted of capital murder, are now eligible for parole after 40 years.

For 17-year olds, though, who are tried as adults, there is presently no legal sentence available under Texas law. A 2005 statute made the death penalty and LWOP the only available sentences for adults convicted of capital murderers, and for purposes of trying to kill them or incarcerate them for life, at least, Texas treats 17 year olds as adults.  Or they were until the Supreme Court said that, for the most extreme sentencing purposes, they belonged in the juvenile category.  The SCOTUS ruling prompted state courts, now including Texas, to reconsider their old juvie LWOP sentences, and the results have been all over the map.  In Texas, this will be a case of first impression.

February 10, 2013 in Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, February 09, 2013

Highlighting the challenges of pardons and politics for state governors

PardonModels_infographic_finalThe folks at Stateline have this terrific new article about state pardon laws and practices titled "Governors Balance Pardons With Politics." Here are excerpts:

This week, Arkansas Governor Mike Beebe announced his intent to pardon Herman T. Warren, who had been convicted of possessing marijuana and drug paraphernalia in 2003.  Warren had completed his sentence, two years on probation, and paid all the fines associated with his conviction.

Beebe’s pardon, which will be issued following a 30-day public comment period, means that Warren will be eligible to serve on a jury and apply to own a gun, and if anyone ever questions Warren about his conviction, he can show the pardon as proof that he’s turned his life around. It’s almost as if Warren’s conviction never happened — although his record won’t be formally cleared, he will no longer experience any official consequences of his conviction.

Pardons like this one are relatively common in Arkansas. (See Stateline infographic [reprinted here].)  In his six-year tenure, Governor Beebe has pardoned 529 individuals, usually issuing a few pardons each month to minor drug offenders convicted more than 10 years ago. The process is a routine part of Beebe’s job, and he’s “constantly reviewing clemency requests,” says spokesman Matt DeCample.

But Beebe’s pardoning practices are increasingly rare among governors, who fear political backlash if a pardoned criminal should reoffend.  Clemency decisions have proved costly for recent Republican presidential candidates, including Beebe’s Arkansas predecessor, Mike Huckabee, who faced tough questions after Maurice Clemmons, a man whose sentence Huckabee commuted, was linked to the murder of four police officers near Tacoma, Washington.

Many current governors in the national spotlight, such as Wisconsin’s Scott Walker, New York’s Andrew Cuomo, and Massachusetts’ Deval Patrick, have granted no pardons at all. And governors don’t have an example of pardon leniency to follow in the White House either — President Obama granted just 22 pardons in his first term, the lowest number of any president since George Washington.  These days, many governors are more inclined to pardon a turkey for Thanksgiving or a pig for a bacon festival, than to grant restored rights to a convicted criminal.

The reasons are not always personal. In six states, pardons are entirely the province of an independent commission.  In 20 states, the governor can make the decision, but must consult with a board of one kind or another.  In Rhode Island, the Senate must approve every pardon application before it can be granted. Needless to say, very few offenders receive pardons in Rhode Island.

But in much of the country, the power to pardon remains a gubernatorial prerogative, one of the broadest executive powers afforded to governors in a state’s constitution.  And the pardon decision rarely follows any ideological trend; it’s largely subject to the individual preferences of the executive and the customs of the state, says Margaret Colgate Love, who served as U.S. pardon attorney from 1990 to 1997.

By and large, the reason for the drop in the number of governors’ pardons since the 1960s is political, argues P.S. Ruckman, a professor of political science at Rock Valley College in Rockford, Illinois, and author of the blog, Pardon Power.  “Some governors think, ‘why should I do this? It won’t benefit me politically and it might hurt me.’  There’s some very crass political calculating going on,” says Ruckman, “and people suffer because of it.”

“Particularly when a governor does it alone,” says Love, “pardoning is a very personal thing, and the reasons for doing it can vary.  To me, it is a measure of character. In some states, like Arkansas and Nebraska and Connecticut, there is a culture and expectation that there will be pardons. But there is always a political element because popular opinion is the main brake on the power.”...

Criminal convictions come with a range of collateral consequences, including the loss of voting rights, right to serve on a jury, hold public office or obtain a gun permit.  A pardon from the governor can restore those rights, and a handful of governors, including Democrats Beebe in Arkansas and Tim Kaine in Virginia and Republican Robert Ehrlich in Maryland, have restored the rights of hundreds of former offenders.

Both pardons and commutations are often made at the end of a governor’s tenure when he is not facing reelection and the political consequences for a pardoning decision won’t be as severe.  “You really see what they believe when they’re a lame duck,” says Rachel Barkow, a law professor at New York University.

It’s these end-of-term grants that are often the most infamous.  For example, just hours before Governor Arnold Schwarzenegger left the California governor’s mansion in 2011, he shortened the sentence of a political ally’s son from 16 to seven years, which angered the victim’s family and the public.  The victim’s family sued Schwarzenegger for not notifying them in advance of the commutation, but a court found that while the last-minute commutation was “repugnant,” it was not illegal.

One year later, as Haley Barbour was leaving office as Mississippi’s governor, Barbour pardoned nearly 200 offenders, including five convicted murderers, as a display of Christian principles of forgiveness, he said at the time.  The last-minute pardons set off a national uproar and the state’s attorney general argued that Barbour had violated the state constitution by not publishing a notice of his intent to pardon the offenders.  The Mississippi Supreme Court upheld Barbour’s right to pardon the offenders; however, incoming Governor Phil Bryant vowed to severely limit the number of pardons he would grant.

While the overall trends show pardons on the downturn, there are some current exceptions.  Illinois Governor Pat Quinn has pardoned over 800 people since taking office in 2009, clearing a backlog of more than 2,500 pardon applications left untouched by previous Governor Rod Blagojevich.  California Governor Jerry Brown, who has noted his commitment to rehabilitation, has issued 149 pardons since taking office in 2011, reversing a nearly 20-year trend of minimal pardons from California governors.

February 9, 2013 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, February 08, 2013

"What the Gun Lobby and the Marijuana Lobby Have in Common"

The title of this post is the headline of this new commentary by Andrew Cohen at The Atlantic.  It gets started this way:

Last week, I took a glancing look at some of the most dubious gun measures creeping up from state legislatures all over the country since the beginning of the year. The statutory text may differ from state to state, but the theme of those post-Newtown proposals are essentially the same: Under the banner of federalism, expressing alarm at federal power, earnest lawmakers are seeking to use new state laws to prevent law enforcement officials from enforcing existing (and future) federal gun regulations.

At the same time, also in the last five weeks, lawmakers in at least 18 states -- more than one-third of the nation -- have proposed dozens of new marijuana laws that would dramatically alter the way millions of people interact with pot.  Again, the details differ from bill to bill.  But, again, the underlying theme is familiar: Under the banner of federalism, expressing disdain with federal power, earnest lawmakers are seeking through these measures to erode the scope of federal law, which still classifies marijuana as a dangerous drug that is illegal to sell or possess.

The new generation of gun laws, which run directly counter to national public opinion, is rooted in the fealty of state lawmakers to the 10th Amendment, to the 2nd Amendment, to gun industry lobbyists and to its tribune, the National Rifle Association.  And these measures, if passed, would be patently unconstitutional.  You can amend or repeal a federal statute, in other words, including of course a federal gun regulation, but as a state lawmaker you cannot seek to punish federal officials who are trying to enforce it.

On the other hand, the new generation of marijuana laws, which represent growing national support for reasonable reform, is a direct result of the stunning election success last November of two legalization measures in Colorado and in Washington.  These measures, too, on their face, violate federal marijuana law.  And, ultimately, either the federal law will have to change, or these state laws will have to change.  That change isn't likely to come first from the courts.  It's going to have to come from lawmakers, from Congress, and the White House.

February 8, 2013 in Gun policy and sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Second Amendment issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Notorious NY cop killer loses Atkins claim and will face federal death penalty again

As reported in this New York Times article, headlined "2 Detectives’ Killer Is Eligible for Death Penalty, Judge Rules," a lengthy federal court ruling handed down yesterday has cleared the way for an infamous murderer to face the death penalty again. Here are the basics:

A New York City man who was sentenced to be executed for the murder of two undercover police officers in 2003 — and who made headlines once again this week after it was revealed he impregnated one of his prison guards — was found by a judge on Thursday not to be mentally retarded and therefore eligible to be put to death.

The man, Ronell Wilson, shot and killed two undercover detectives — James V. Nemorin and Rodney J. Andrews — during a failed gun-buy operation on Staten Island in 2003. A federal jury found Mr. Wilson guilty of murder and handed down the first death sentence by a federal jury in the city in more than half a century.

An appeals court upheld the conviction but not the death sentence, saying the prosecution unfairly prejudiced the jury during sentencing. That meant the question of whether Mr. Wilson would face capital punishment or would face life in prison would have to be heard by a new jury.

Lawyers for Mr. Wilson sought to block the prospect that he could receive another death sentence by arguing that he was mentally incompetent. But Judge Nicholas G. Garaufis of United States District Court in Brooklyn ruled that Mr. Wilson was not mentally retarded, either at the time he committed the crime or now.

The 55-page ruling did not mention the latest controversy surrounding Mr. Wilson — that he had a sexual affair with one of his prison guards at the Metropolitan Detention Center in Brooklyn and that she is now eight months pregnant with his child. The guard, Nancy Gonzalez, 29, was arraigned in federal court on Tuesday on charges of sexual abuse of a person in custody, because an inmate cannot legally consent to sex.

If Mr. Wilson had been found to be retarded, a death penalty ruling would violate the Eighth Amendment ban on cruel and unusual punishments, as well as the Federal Death Penalty Act, passed by Congress in 1988 and amended in 1994. It states that a “sentence of death shall not be carried out upon a person who is mentally retarded.”...

Judge Garaufis noted that over the course of his life, Mr. Wilson had been given nine I.Q. tests. The methods of the testing varied, but Judge Garaufis found that because eight of those tests showed him to be at least three points above the benchmark for legal retardation, which is 70, Mr. Wilson was not retarded.

In addition to the I.Q. tests, Judge Garaufis said he based his ruling on the opinions of the clinicians who administered the tests. “The clinical judgments of Wilson’s test administrators support the court’s analysis,” he wrote. “And most of them believed his observed scores represented an underestimate of his true intelligence.”

But the judge noted that the ruling did not mean Mr. Wilson would ultimately face execution for his crimes. “This does not mean that he will receive — or deserve to receive — the death penalty,” he wrote, “but only that any such penalty would not violate the Federal Death Penalty Act or the Eighth Amendment.”

Recent related posts:

February 8, 2013 in Death Penalty Reforms, Offender Characteristics, Who Sentences? | Permalink | Comments (20) | TrackBack

Thursday, February 07, 2013

Are tough sentences sought in Amish beard-cutting case part of a DOJ "war on religion"?

The provocative question in the title of this post is prompted by this recent post by Bill Otis over at Crime & Consequences under the provocative heading "DOJ Goes Stark Raving Mad." Here are excerpts of Bill's perspective on a high-profile federal sentencing case:

Regular readers know that I'm no fan of wimpy sentencing, and that I've had it with the every-excuse-in-the-book style of defense lawyering.  But there are limits.  DOJ went well beyond them when it sought a life sentence for an Amish bishop convicted of conspiracy to forcibly cut beards....

Bishop Samuel Mullett is not Mr. Nicey, according to the government's sentencing memo. The story reports that, in addition to leading the beard-cutting conspiracy for which he was convicted, prosecutors "characterized Mullet as an iron-fisted bishop who exerted total control over his flock: He censored his followers' mail, had sex with married women under the guise of marital counseling, endorsed bizarre punishments such as confinement in chicken coops and spankings, and laughed at the attacks, which were driven by a crusade to punish those who spurned his teachings."

Those are bad things, and if they are true, they are properly taken into account in federal sentencing....  But life? Is this guy Ted Kaczynski?  Zacarias Moussaoui?  Not exactly.  How does DOJ wind up recommending life for the ring leader in a beard-cutting conspiracy? They might just be smoking weed, but I suspect something else, less groovy and more ominous, is at work.

This seems to be a part of the present administration's snarling hostility to religion. And one must admit the defendant makes a politically apt target.  This "bishop" sounds like a first-class thug, and he heads a splinter group in what is itself a very small, conservative, insular religion that must seem to Eric Holder to be ripe for the pickin'.  But this is taking liberal detestation of religion to an absurd extreme.  What happened to government neutrality?  Could a sentencing recommendation this far off the wall possibly have come about without at least an element of anti-religious bigotry?

What we have here is a 67 year-old man with no prior record (so far as I know or is reported in the story) who organized, and then (apparently) laughed at, beard cuttings.  It's only when viewed in the funhouse mirror of Holder's Very Politically Correct DOJ that this could be seen as an LWOP offense.

Does the "bishop" deserve jailtime?  You bet, and I hope he gets it.  But life in the slammer? DOJ's action would be a joke if, on account of its menacing, if only shadowy, political and cultural motivations, it weren't so dangerous.

I find Bill's perspective here quite stunning (and telling) given Bill's oft-stated affinity for making the federal guidelines mandatory again and his advocacy for long-terms of incarceration to incapacitate dangerous offenders.  Let me explain (using some of Bill's own words):

1. Bill asks "How does DOJ wind up recommending life for the ring leader in a beard-cutting conspiracy?"; he asserts that only "in the funhouse mirror of Holder's Very Politically Correct DOJ that this could be seen as an LWOP offense." Actually, DOJ is only recommending a within-guideline sentence for Samuel Mullet Sr. (and it is recommending well-below guideline sentences for all the other Amish defendants).  In other words, it is only the crazy "funhouse mirror" of unduly severe federal sentencing guidelines (and the continued affinity for these guidelines stressed by folks like Bill) which makes this crime appear to be an LWOP offense.

2. As referenced in the government's sentencing memo, many other members of the Amish community have written to prosecutors to stress that Samuel Mullet Sr. is a religious terrorist comparable to other violent zealots quick and eager to do great harm to anyone who does not follow his edicts or share his views.   My own disaffinity for severe sentences was tempered as I read these letters from members of the Amish community; I came to think that showing real respect for the Amish religion may require a severe sentencing term for Mullet and his most radical followers.

3. The government's sentencing memo and related materials certainly indicate (a) that the Amish community has been much safer since Mullet's arrest, and (b) that Mullet has shown no remorse and may well return to his terrorizing ways if and whenever released from custody.  Though I am not a big fan of using vague concerns about recidivism to justify longer terms of imprisonment, in this case the risk of recidivism seems quite significant and the future crimes would surely be directed toward the very Amish community whom Bill thinks DOJ is here disrespecting.

I could go on and on, but I want to give Bill and chance to respond in the comments and also allow others to share their perspectives on this fascinating case.  (I should note that I share the view that an LWOP sentence here is overkill, though I see this as an overkill prompted by dysfunctional federal sentencing guidelines, not a religion-hating DOJ.  And though Bill never indicates what kind of prison term would be fitting in his eyes, I think something in the neighborhood to 10 years may be about right to achieve all the diverse and challenging federal sentencing purposes implicated in this case.)

Whatever else one thinks about these issues, this Amish beard-cutting case surely provides yet another example of the many ways in which difficult sentencing cases can starkly reveal (a) how problematic any rigid system of sentencing guidelines can often be, and (b) what values are at the core of various persons' diverse sentencing perspectives.

Related related posts:

February 7, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Religion, Scope of Imprisonment, Who Sentences? | Permalink | Comments (67) | TrackBack

Feds seeking upward departure for local comptroller engaged in long-time fraud

As detailed in this Chicago Tribune article, federal prosecutors have found a white-collar case in which they think the federal guidelines are not tough enough. Here are the basics:

In the spring of 2010, the city of Dixon was in a financial death spiral, with a budget deficit closing in on $4 million, no working cash flow and drastic cuts needed in services and hiring to stay afloat.   Longtime Comptroller Rita Crundwell gave commissioners a familiar excuse for the crisis: Declining tax revenues in a bad economy and late state payments had drained the town's coffers.

Yet Crundwell was living it up with massive amounts of stolen taxpayer money. In 2010 alone, federal authorities say, Crundwell plundered more than $5.5 million, money that went to buy an 80-acre ranch and farmhouse outside town, expand her championship horse business, fund lavish birthday parties for herself in tony Venice Beach, Fla., and buy luxury vehicles and jewelry.

In newly filed court papers ahead of Crundwell's sentencing next week, federal prosecutors are seeking as much as 20 years in prison, laying out in the greatest detail yet how her nearly $54 million in thefts beginning in 1991 devastated the northwest Illinois town's budget as well as public confidence in its government officials....

Crundwell ordinarily would face a sentence of about 12.5 to 16 years in prison under federal sentencing guidelines. But prosecutors want U.S. District Judge Philip Reinhard in Rockford to go higher because of the decades-long scheme and staggering losses.

In a response filed Tuesday, Crundwell's attorney, Public Defender Paul Gaziano, asked for a sentence at the low end of the guidelines. Gaziano noted that a 20-year sentence would likely mean that Crundwell, 60, would spend the rest of her life in prison.  He also argued that she has cooperated with authorities once the fraud was uncovered last April and has helped the town recoup some of its losses by selling off millions of dollars in horses, real estate and other assets....

When Crundwell pleaded guilty last November to a single count of wire fraud, acting U.S. Attorney Gary Shapiro called it the largest theft of government funds in Illinois history. In her plea agreement with prosecutors, Crundwell, who served as the city's comptroller starting in 1983, admitted transferring money from city funds into a bank account bearing her name that she secretly opened in December 1990.

The thefts grew bolder over time, but it wasn't until she started spending long periods away from City Hall, traveling the country to compete in horse shows, that her scheme unraveled. In 2011, the city clerk, filling in for Crundwell, discovered the secret account and informed the mayor, who tipped off law enforcement, authorities have said.

In the early years, Crundwell annually stole a few hundred thousand dollars, but by the late 1990s, as her quarter-horse business expanded and gained national attention, the thefts exploded, growing to more than $1 million in 1999, then nearly doubling to $2 million the next year, according to prosecutors.  The town's financial straits worsened, and cuts to each annual budget multiplied.  By 2008, the shortfalls reached crisis levels.  At a special City Council meeting that March, Finance Commissioner Roy Bridgeman reported that the budget deficit approached nearly $1.2 million and warned of staff cutbacks, according to court records.

Professor Todd Haugh sent me an intriguing note about this case after the feds filed its sentencing documents, which he has graciously allowed me to post here:

The government's sentencing memorandum is pretty incredible. Not only does it ask for an upward departure from the sentencing guidelines (which are already at 210-262 months based on the dollar amount and her position of trust) to a sentence of 27-34 years (324-405 months), but it includes a five-part timeline/slideshow detailing the crime and Crundwell's personal expenditures. I've never seen anything like that in 10 years of defending white collar cases, particularly when the original guideline range is that high already.... The tone of the slideshow, not surprisingly, is greed, greed, greed, and it's filled with color pictures of all the things this women bought with the illegally-obtained funds.

To put the possible sentence in perspective, if Crundwell gets anywhere close to 34 years, she will be in the upper-echelon of white collar defendants receiving heightened sentences. Skilling got 24 years; Rajaratnum got 11; Rigas got 20; Peter Madoff got 10; etc. She would be getting close to even the big Ponzi schemers (the CEO of Peregrine just got 50 years for a $100M Ponzi)....

To me, this is classic government piling on of a white collar offender in the name of assuaging community anger (which is highly concentrated here). It does very little to further the goals of sentencing (I suppose retributivists could argue the additional 100+ months are necessary but even that seems a stretch given the already high sentence), and it's simply advancing the crime master narrative of "all white collar offenders should be given life sentences because they are greedy and evil."... But it also demonstrates how the fraud guideline becomes a little silly at the high loss levels and how 3553 can be a weapon for the prosecution, not just a shield for the defense.

February 7, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

"Plea Bargaining After Lafler & Frye"

The title of this post is the title of an amazing looking symposium sponsored by Duquesne University School of Law taking place a few weeks from now.  This website sets out the basics:

Join us for a national symposium on plea bargaining after the U.S. Supreme Court's two latest decisions on the topic, Lafler v. Cooper and Missouri v. Frye. These decisions recognized that a defendant has a right to the effective assistance of counsel in the process of criminal negotiations.  The Court, however, expressly declined to say what remedy a defendant, whose lawyer did not perform effectively during the plea bargain, should receive.  These cases raise many more questions than they answer.  Do they change the plea process?  How does one go about evaluating whether a lawyer has been a constitutionally competent negotiator? What remedy should lower courts apply?  Do these cases portend judicial limitations on prosecutors?

The Honorable W. Louis Sands of the United States District Court for the Middle District of Georgia, a former state and federal prosecutor, will deliver the keynote address on Thursday offering his reflections from the bench.

A series of panels, each hosted by a prominent Pittsburgh lawyer or judge, will follow on Friday to focus on implications and concerns raised by the two decisions.  The day will begin with an introduction by the Honorable Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit and author of one of the seminal pieces on the subject.

The full symposium schedule details that lots of top scholars and practitioners are covering lots of cutting edge plea bargaining topics at this event.

February 7, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, February 06, 2013

Some of today's notable marijuana headlines

22_010411marley_01Because there is so many on-going local and national sentencing developments and law reform discussions concerning marijuana, I would need to a few post posts a day just keep up with the highlights.  But, because I am disinclined to have this blog morphy into a cyber-version of High Times, I am trying to be somewhat selective concerning when and how to cover wacky weed developments. 

That said, and especially because today would have been Bob Marley's 68th birthday, I thought there we a number of major marijuana stories breaking today that justified blog coverage. Here are headlines and links to just some of the noteworthy ganja news drawn from various sources:

I think a reasonable claim could be made that any one of these headlines reports on the most important marijuana reform story of the day.  But because money often ends up speaking louder than morals, especially in lean times, I would assert that the story out of Michigan is perhaps the most consequential.  It begins this way:

Medical marijuana is turning out to be a windfall for Michigan state government.

A report says nearly $10 million in revenue was collected from applicants — more than double the cost of running the program.  The report covers the state's last budget year, which ended on Sept. 30.

A medical marijuana application costs $100.  Caregivers who grow marijuana for people also pay a fee.

To paraphrase the reggae master, it would appear Michigan's jamming, and I suspect that many other states looking for easy tax revenues will, before too long, wanna be jamming, too.

February 6, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (14) | TrackBack

(In)famous innocence story at heart of efforts to repeal Maryland's death penalty

Today's New York Times includes this notable article, headlined "A Death Penalty Fight Comes Home," concerning a major player in the push to abolish capital punishment in Maryland. Here are excerpts:

Kirk Noble Bloodsworth, a beefy, crew-cut man whose blue T-shirt read “Witness to Innocence,” took the microphone in a church hall here and ran through his story of injustice and redemption one more time.  Twenty years ago, he walked out of a Maryland prison, the first inmate in the nation to be sentenced to death and then exonerated by DNA.

About 60 activists against the death penalty listened with rapt attention, preparing to descend on state legislators to press their case.  Maryland appears likely in the next few weeks to join the growing list of states that have abolished capital punishment.  Some longtime death penalty opponents say no one in the country has done more to advance that cause than Mr. Bloodsworth.  But ending executions in Maryland, the state that once was determined to kill him, would be a personal victory for him.

Even for proponents of capital punishment, Mr. Bloodsworth’s tale is deeply unsettling. In 1984, he was a former Marine with no criminal record who had followed his father’s profession as a waterman on the Eastern Shore of Maryland.  A woman glimpsed on television a police sketch of the suspect in the rape and murder of a 9-year-old girl outside Baltimore.  She thought it looked like her neighbor Kirk, and she called the police.

From there, with the police and prosecutors under intense pressure to solve the crime, it was a short route to trial, conviction and a death sentence for a man whose Dickensian name, after all, seemed to imply guilt.  “I was accused of the most brutal murder in Maryland history,” Mr. Bloodsworth, now 52, told the church audience.  “It took the jury two and a half hours to send me to the gas chamber.”

Only after nine years in the state’s most decrepit and violent prisons did Mr. Bloodsworth, through his own perseverance and some aggressive lawyering, manage to get the still-novel DNA test that finally proved his innocence in 1993.  Even then, prosecutors publicly expressed doubt about his innocence. “Nobody knew what DNA was then — it was sort of shaman science, a ‘get out of jail free’ card,” he said in an interview. It took another decade — and, again, Mr. Bloodsworth’s own dogged efforts — before officials ran the DNA from the murder scene through a database and identified the real killer, who is now serving a life sentence.  He bore little resemblance to the description that the police had compiled from eyewitnesses....

Even after his release, Mr. Bloodsworth could never quite escape the false charges that had threatened him with execution.  He tried to return, he said, to “a normal life,” but he was haunted by what he had learned about the justice system.  “If it could happen to me, it could happen to anybody,” he said. He threw himself into work against capital punishment and for justice reform, first as a volunteer speaker and later as a professional advocate.  Last month he began work as the advocacy director for Witness to Innocence, a Philadelphia-based coalition of exonerated death row inmates who push to end capital punishment.

The movement to end the death penalty has garnered more support from politicians and the public as it has shifted from moral condemnation of capital punishment to a more practical argument: that mistakes by witnesses and the police inevitably mean that innocent people will be executed.  While DNA gets the limelight, of 142 prisoners sentenced to death and then exonerated in the last 40 years, just 18 were freed over DNA evidence, according to the Death Penalty Information Center in Washington.

Use of the death penalty has been steadily declining, and 17 states no longer have it on the books, with 5 of them abolishing it since 2007, said Richard C. Dieter, the center’s executive director. Executions dropped to 43 last year from 98 in 1999.  “These innocence cases are the biggest single factor, because it has spread doubt throughout the system,” Mr. Dieter said.

Mr. Bloodsworth, a tireless public speaker who has visited state after state to lobby for repeal, handing out a 2004 book on his case, called “Bloodsworth,” has used his own experience to promote those doubts.  “I think no single individual has changed as many minds as Kirk,” said Jane Henderson, the director of Maryland Citizens Against State Executions, a lobbying group. “He’s articulate, patient, and he’s got a huge heart.”

His homespun eloquence has unmistakable appeal, but his own tale is his most powerful argument.  Prosecutors and jurors ignored glaring problems with witnesses — two were boys who did not pick Mr. Bloodsworth out of a lineup — and dismissed five alibi witnesses who testified that he was home at the time of the murder....

Delegate Barbara A. Frush, a Maryland legislator for 19 years, said a visit from Mr. Bloodsworth two years ago changed her mind about capital punishment, which she had long favored.  “I sat across the desk from him and looked in his eyes and listened to his story,” she said.  “It sent shivers down my spine.  I thought, I can’t take the chance that I might send an innocent man to death.”

This week, for the first time, he had a private visit with the longtime president of the State Senate, Thomas V. Mike Miller Jr., who has decided to allow a floor vote on the repeal bill. Mr. Bloodsworth left the meeting more optimistic than ever.

February 6, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack

Tuesday, February 05, 2013

Second Circuit judges sparring after denial of review of long child porn sentence

DexterI noted in this prior post the must-read opinions from a split Second Circuit panel in US v. Broxmeyer, No. 10-5283 (2d Cir. Aug. 27, 2012) (available here), in which the panel upholded the reasonableness of a 30-year sentence for possession and attempted production of child pornography.  Today the full Second Circuit denied in banc review of the case via this order.  (Side note to usage mavens: I had thought the Second Circuit had officially given up the in banc form for the more traditional en banc form.  But this new order indicates otherwise.)

Here is the full text of today's order, which details the companion opinions this case has now generated:

Following disposition of this appeal on August 28, 2012, an active judge of the Court requested a poll on whether to rehear the case in banc. A poll having been conducted and there being no majority favoring in banc review, rehearing in banc is hereby DENIED.

Reena Raggi, Circuit Judge, joined by José A. Cabranes, Richard C. Wesley, and Debra Ann Livingston, Circuit Judges, concurs by opinion in the denial of rehearing in banc.

Dennis Jacobs, Chief Judge, joined by Rosemary S. Pooler, Circuit Judge, dissents by opinion from the denial of rehearing in banc.

Many flourishes in the opinions by Judge Raggi and Chief Judge Jacobs makes this latest round of Broxmeyer debate another must-read.  (Among other interesting parts of both opinions are references to infamous cannibal Jeffrey Dahmer.)  I found this particular paragraph in the dissent especially notable not only for its assertions about federalism, but also for its intriguing pop-culture reference:

The majority opinion allows a federal court to inflict punishment overwhelmingly on account of conduct that would be purely state offenses.  It is not the role of the federal courts to exact punishment for conduct that has escaped state prosecution or that (it is thought) the state has punished inadequately, and thereby augment federal sentencing policy with a bit of Dexter.

Would it be wrong to think that Chief Judge Jacobs' pop-culture flourish here provides another name to put on the list of possible candidates for new head of the DOJ's Criminal Division?

February 5, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, February 04, 2013

"Colorado Capital Punishment: An Empirical Study"

The title of this post is the title of this paper now up at SSRN by Justin F. Marceau, Sam Kamin and Wanda Foglia. Here is the abstract:

This article reports the conclusions of an empirical study of every murder conviction in Colorado between January 1, 1999 and December 31, 2010.  Our goal was to determine: 1) What percentage of first degree murderers in Colorado were eligible for the death penalty; and 2) How often the death penalty was sought against these killers.  More importantly, our broader purpose was to determine whether Colorado’s statutory aggravating factors meaningfully narrow the class of death eligible offenders as required by the Constitution.

We discovered that while the death penalty was an option in approximately ninety two percent of all first degree murders, it was sought by the prosecution initially in only three percent of those killings, pursued all the way through sentencing in only one percent of those killings, and obtained in only 0.6 percent of all cases.

These numbers compel the conclusion that Colorado’s capital sentencing system fails to satisfy the constitutional imperative of creating clear, statutory standards for distinguishing between the few who are executed and the many who commit murder.  The Eighth Amendment requires that these determinations of life and death be made at the level of reasoned legislative judgment, and not on an ad hoc basis by prosecutors.  The Supreme Court has emphasized that a State’s capital sentencing statute must serve the “constitutionally necessary function . . . [of] circumscrib[ing] the class of persons eligible for the death penalty” such that only the very worst killers are eligible for the law’s ultimate punishment.  Colorado’s system is unconstitutional under this standard because nearly all first degree murderers are statutorily eligible to be executed.

I do not think one needs to be a sophisticated empiricist to have an inkling, based on the quality and quantity of support for the death penalty expressed in some comments, that not all readers of this blog with feel compelled to reach the same constitutional conclusion reached by these authors concerning Colorado's modern experience with capital punishment.

February 4, 2013 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Guest post: "Victims of Human Trafficking Can Vacate Convictions in NY"

As regular readers know, I welcome guest posts from all quarters, and I was pleased when prominent New York criminal practitioner Arkady Bukh (firm website here) sent me this extended discussion of an important legal issue:

It has long been a fact that the victims of human trafficking, especially sexual trafficking, suffer not just from their abusers, but also from a criminal record that they carry with them the rest of their lives. This record can keep them from turning their lives around by keeping them from regular employment, good credit and in general ruining their overall reputation in the community. How sad is it that someone coerced or sold into sexual slavery at the age of 13 cannot obtain a normal life even when their abuser has been caught or they have escaped from them. At the present time there are seven states that have enacted legislation to clear the criminal records of the victims of human trafficking and they are: New York, Illinois, Maryland, Nevada, Vermont, Washington and Hawaii. This is a brief overview of the law as it presently stands in New York State.

a) The New York Vacating Convictions law at this time can only be applied to persons that have been convicted of two crimes: 1) New York Penal Law §230.00 – Prostitution; 2) New York Penal Law §240.37 Loitering for the Purpose of Engaging in a Prostitution Offense.

b) This statute states that there is not official documentation of trafficking required for a victim to qualify, however, if they do have official documentation such as a letter from the Dept. of Health stating that they were a victim of human trafficking then there is a presumption created that their convictions were from trafficking. There is no evidence such as this required in the New York Law and personal affidavit is accepted.

c) Importantly the New York law does NOT MANDATE that victims bringing their motions for vacatur to have to prove that they have exited prostitution or have entered some sort of "rehab" type of program in order to gain this remedy. However, in order to insure that victims can come forward even years after their victimization has ended to clear their conviction history, the legislation has included the following paragraph for their benefit, not as a mandate:

A motion under this paragraph shall be made with due diligence, after the defendant has ceased to be a victim of such trafficking or has sought services for victims of such trafficking, subject to reasonable concerns for the safety of the defendant, family members of the defendant, or other victims of such trafficking that may be jeopardized by the bringing of such a motion, or for other reasons consistent with the purpose of this paragraph. N.Y. CRIM. PROC. LAW §440.10(1)(i)

d) A major aspect of the victimization of these people is that they have often been threatened with death or injury to themselves or family members by their abusers. For this reason, the NY law allows a victim's motion to be made with privacy allowed to the petitioner. Legal Services and other advocacy groups have made these petitions using only the victim's initials, much the way a minor is often protected in the family courts.

e) The New York creates actual vacatur for the victim which is stronger than an expungement which may be offered by other states. A vacatur is actually the closest thing to erasing the convictions of the victim where in some states that after an expungement the petitioner must then ask the records to be sealed. New York State does not have an expungement remedy for any crime which is why this is done as a vacatur actually vacating the convictions and creating a clean record.

f) If the victim has met all the requirements of this law and is a victim of human trafficking, the Judge has no discretion not to vacate the convictions and dismiss the accusatory instruments. The elements needed to be met are: 1) was a victim of human trafficking, 2) was charged with the crimes and 3) these crimes that they have been charged with were due to the fact of human trafficking.

g) However, a Judge may have discretion to take any additional action they deem reasonable such as possibly vacating other offenses that they consider part of the whole trafficking life of the victim.

h) This law is retroactive and can cover any convictions the victim incurred prior to the law being enacted.

It is a positive thing that New York passed this legislation in 2010 and a good thing that six other states have similar laws on their books. However, it is very sad that 43 states have yet to take this action to protect the victims of human trafficking, especially at a time when this crime has become more and more prevalent. Many victims of trafficking are brought to this country illegally by their abusers and this law makes it possible for them to obtain legal status. "The Board of Immigration Appeals has rules that when a state court vacates a judgment of conviction based on a procedural or legal deficit,..…the conviction is eliminated for immigration purposes".

New Jersey along with other states such as Florida are looking at legislation strengthening their laws against human trafficking, it can just be hoped that at the same they will add legislation that will vacate the convictions of those victims of this crime.

February 4, 2013 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Sunday, February 03, 2013

"Why Police Lie Under Oath" and deeper challenges involving criminal justice metrics

03POLICE-articleInlineThe title of this post is the partially drawn from the headline of this opinion piece in today's New York Times, which was authored by my Ohio State College of Law colleague Michelle Alexander.  Here is how it starts:

Thousands of people plead guilty to crimes every year in the United States because they know that the odds of a jury’s believing their word over a police officer’s are slim to none. As a juror, whom are you likely to believe: the alleged criminal in an orange jumpsuit or two well-groomed police officers in uniforms who just swore to God they’re telling the truth, the whole truth and nothing but?  As one of my colleagues recently put it, “Everyone knows you have to be crazy to accuse the police of lying.”

But are police officers necessarily more trustworthy than alleged criminals?  I think not. Not just because the police have a special inclination toward confabulation, but because, disturbingly, they have an incentive to lie.  In this era of mass incarceration, the police shouldn’t be trusted any more than any other witness, perhaps less so.

That may sound harsh, but numerous law enforcement officials have put the matter more bluntly. Peter Keane, a former San Francisco Police commissioner, wrote an article in The San Francisco Chronicle decrying a police culture that treats lying as the norm: “Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath.  It is a perversion of the American justice system that strikes directly at the rule of law.  Yet it is the routine way of doing business in courtrooms everywhere in America.”

Though focused on police practices, this piece goes on to touch upon the broader systemic problems that can result from "get tough" metrics (much too?) often being used by police and prosecutors and rewarded by legislatures:

Police departments have been rewarded in recent years for the sheer numbers of stops, searches and arrests. In the war on drugs, federal grant programs like the Edward Byrne Memorial Justice Assistance Grant Program have encouraged state and local law enforcement agencies to boost drug arrests in order to compete for millions of dollars in funding.  Agencies receive cash rewards for arresting high numbers of people for drug offenses, no matter how minor the offenses or how weak the evidence.  Law enforcement has increasingly become a numbers game.  And as it has, police officers’ tendency to regard procedural rules as optional and to lie and distort the facts has grown as well. Numerous scandals involving police officers lying or planting drugs — in Tulia, Tex. and Oakland, Calif., for example — have been linked to federally funded drug task forces eager to keep the cash rolling in....

The natural tendency to lie makes quota systems and financial incentives that reward the police for the sheer numbers of people stopped, frisked or arrested especially dangerous. One lie can destroy a life, resulting in the loss of employment, a prison term and relegation to permanent second-class status. The fact that our legal system has become so tolerant of police lying indicates how corrupted our criminal justice system has become by declarations of war, “get tough” mantras, and a seemingly insatiable appetite for locking up and locking out the poorest and darkest among us.

And, no, I’m not crazy for thinking so.

As regular readers likely realize, I am a big fan of data and metrics in the operation of modern criminal justice systems (which is, surely, a by-product of the fact that I am much more drawn to consequentialist rather than retributivist theories of punishment). Thus, as a general matter, I am not opposed to the reality that law enforcement, as well as other parts of our modern criminal justice system, "has increasingly become a numbers game." But, as this opinion piece highlights, we need to be conscious and cautious about whether the metrics were are using are the right ones and about whether these metrics may be harmfully distorting the ways in which various criminal justice actors go about doing their jobs.

I have been giving extra thought to these issues lately in part because of this recent post noting a prosecutor taking with pride about extra long federal sentences and this recent post about the US Sentencing Commission's new Booker report noting that the number of federal offenders has substantially increased in recent years.  But all sort of other major criminal justice issues and debates can (and should) turn on debates over metrics.  For example, does more guns, as some contend, really result in less crime?  And what will and should be the metrics used to judge the success or failings of  modern marijuana reform efforts? 

Staying focused on sentencing issues, the nationwide movement toward so-called "evidence-based" reforms also has, hiding deep within, really hard questions concerning what kinds of "evidence" are most valid and most important in the continuing evolution of sentencing systems.  Is saving a lot of taxpayer money a marker of sentencing reform success if crime ticks up a bit?  How about simply having fewer persons with liberty restricted by being in prison or subject to criminal justice control? (Maybe now that Nate Silver has some free time until the next election cycle gets into full swing, perhaps he can focus his impressive data-crunching skill on these issues and all the challenges they present.)

Some recent and older related posts implicating metric challenges:

February 3, 2013 in Data on sentencing, National and State Crime Data, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (46) | TrackBack

Saturday, February 02, 2013

Should a US Attorney take pride in helping to "have produced the longest average prison sentences in the country"?

The question in the title of this post is prompted by this interesting local article coming from Indiana which a kind reader sent my way today.  The article is headlined "U.S. attorney plans additional efforts in 2013," and here are some excerpts which provide context for the query above:

Since his appointment to the job in late 2010, U.S. Attorney General for the Southern District of Indiana Joseph Hogsett has steadily grown the office’s footprint.

He has done so by refocusing on existing efforts like the U.S. Attorney Office’s anti-child exploitation campaign Project Safe Childhood, but also by expanding the office’s reach with a violent crime initiative and creation of an interagency group to find and prosecute corruption and white-collar crimes.  “I plan to continue many of those priorities and hopefully add a few more in 2013,” he said.  “I would like to see it continue to expand.”

With 60 counties in the district, Hogsett’s efforts affect nearly two-thirds of the state. The U.S. attorney’s office maintains offices in Indianapolis, Evansville, New Albany and Terre Haute — all of which are cities with federal courthouses.

In 2012, an additional full-time attorney was added to the Evansville office, as well as a part-time special deputy U.S. Attorney who also works part-time in the Vanderburgh County Prosecutor’s Office, and who serves as liaison between the two. In addition, Assistant U.S. Attorney Matt Brookman from the Evansville office was appointed to lead the district’s drug unit, supervising a team of attorneys both Evansville and Indianapolis.

Hogsett’s most recent effort has been the creation of a Civil Rights Task Force. The idea is to take a more active roll in investigating and pursuing legal actions on cases in which the civil rights of Indiana are endangered.

Hogsett said it will take a broad view of civil rights and include attorneys from the civil and criminal divisions of the office. “I am not talking just racial actions but also areas such as the Americans with Disabilities Act (ADA),” he said, adding he would like to make a difference in the areas of fair housing and fair lending.

He pointed to recent cases from his office that involved service animals being allowed in restaurants and an agreement with the Indianapolis Motor Speedway to comply with the ADA, as well as prosecuting multiple cases of intimidating acts based on race or ethnicity....

[H]e said pursuing civil rights violations will take more effort than other initiatives. “The others have largely depended on relationships with law enforcement. This Civil Rights Task Force is going to require us to do a lot of outreach to the community.”

Hogsett’s previous initiatives have brought measurable results.  Prosecutions in the Southern District of Indiana have produced the longest average prison sentences in the country over the last two years, according to an annual report compiled by the office. Hogsett attributes much of the office’s success to cooperation with local prosecutors and law enforcement agencies.

The question in the title of this post emerges from the penultimate sentence above that I have highlighted. I do not mean to suggest an answer to the question, but I sense of the context of this laudatory press report that Mr. Hogsett and those within his office are (1) keeping close track of sentencing outcomes, and (2) seem to consider it an accomplishment worth noting to the press that recent prosecutions in Southern District of Indiana have resulted in the harshest average prison sentences over the last 24 months among all 90+ federal districts.

Having never been a federal prosecutor, I am not sure if it is unusual or common for a US Attorney's office to keep very close account of sentencing outcomes and to use those outcomes as a metric of importance in the work of that office. But I am sure I would not like to hear that US Attorneys and their assistants in other federal districts would be likely to react to this story by deciding they need to try to best Mr. Hogsett's efforts to produce the longest average federal prison sentences in the country. More broadly, I sure hope at both the federal and state levels that many more prosecutors look for decreases in local crime rates, rather than increases in the severity of sentencing outcomes, as the preferred metric for evaluating their accomplishments as prosecutors.

February 2, 2013 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, February 01, 2013

Summary of key USSC findings in its big new Booker report

6141708385_8dedf68f37As explained here, unfortunately, wascally on-line wabbits have so far managed to allow only the first big part of US Sentencing Commission super-sized new Booker report to be available on-line only via this SL&P link.  Fortunately, because others are primarily in charge of chasing down the annoying anonymous hackers (and because the NRA is primarily in charge of making sure all the rest of us have a right to use maximum firepower when hunting other forms of wabbits), I can spend my time trying to take stock of all the incredible effort and research reflected in the part of the new USSC Booker report now available for general consumption.

Though I am still just start to scratch the massive surface of the mass of information in just the first part of the new USSC Bookerreport, I can begin some assessment of what's in there by first praising the Commission for having a handy list of bolded "key findings" summarized in the first chapter.  Here, in full text, are all the bolded key findings set out in the report's Overview chapter [with my own numbers added]:

[1] The number of federal offenders has substantially increased, and most federal offenders have continued to receive substantial sentences of imprisonment.

[2] The guidelines have remained the essential starting point for all federal sentences and have continued to influence sentences significantly.

[3] The influence of the guidelines, as measured by the relationship between the average guideline minimum and the average sentence, has generally remained stable in drug trafficking, firearms, and immigration offenses, but has diminished in fraud and child pornography offenses.

[4] For most offense types, the rate of within range sentences has decreased while the rate of below range sentences (both government sponsored and non-government sponsored) has increased over time.

[5] The influence of the guidelines, as measured by the relationship between the average guideline minimum and the average sentence, and as measured by within range rates, has varied by circuit.

[6] The rates of non-government sponsored below range sentences have increased in most districts and the variation in such rates across districts for most offenses was greatest in the Gall period, indicating that sentencing outcomes increasingly depend upon the district in which the defendant is sentenced.

[7] For offenses in the aggregate, the average extent of the reduction for non-government sponsored below range sentences has been approximately 40 percent below the guideline minimum during all periods (amounting to average reductions of 17 to 21 months); however, the extent of the reduction has varied by offense type.

[8]Prosecutorial practices have contributed to disparities in federal sentencing.

[9] Variation in the rates of non-government sponsored below range sentences among judges within the same district has increased in most districts since Booker, indicating that sentencing outcomes increasingly depend upon the judge to whom the case is assigned.

[10] Appellate review has not promoted uniformity in sentencing to the extent the Supreme Court anticipated in Booker.

[11] Demographic factors (such as race, gender, and citizenship) have been associated with sentence length at higher rates in the Gall period than in previous periods.

I do not think any of these key findings are especially surprising, though I suspect some (many?) will still prove to be somewhat controversial.  Most fundamentally, I am certain that all of these findings could be "spun" in any number of ways in any number of settings.  For example, I think one might reasonably wonder whether finding 8 concerning prosecutors contributing to disparties best explains finding 11 concerning increased demographic disparities.  (Also, it is especially interesting to consider how one might spin findings 2 and 5 and 6 in the on-going Supreme Court litigation concerning the application of ex post facto doctrines in the post-Booker advisory guideline system.)

All these key findings should and likely will engender lots of discussion and debate in the weeks ahead.  For now, though, I am eager to hear from readers about which particular finding they consider most important or least important (or, perhaps, least likely to get enough attention or most likely to get too much attention).   As one who has long been concerned that federal sentencing severity and the overall growth in the total number federal defendants gets too little attention while disparity gets too much attention, I will assert that finding 1 above and the realities it reflects is really the most important big-picture take-away point.  I have a feeling, though, that others may have distinct views.

Recent related post:

February 1, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, January 31, 2013

US Sentencing Commission releases (and provides on-line here only) new Booker report

I was very excited late yesterday to get a call from people at the US Sentencing Commission to tell me (1) that the USSC had completed and was starting to distribute its latest big new report on federal sentencing practice since Booker, and (2) that I could be the first website to post the report (and an accompanying press release) on-line due to the technical challenged now facing the USSC website.  Ergo, below are these documents, and here are excerpts from the press release (which is dated January 30, 2013):
Today the United States Sentencing Commission submitted to Congress its report assessing the continuing impact on the federal sentencing system of the Supreme Court’s 2005 opinion in United States v. Booker, which rendered the sentencing guidelines advisory.
Judge Patti B. Saris, chair of the Commission, stated: “The sentencing guidelines remain the essential starting point for determining all federal sentences and continue to exert significant influence on federal sentencing trends over time. Four out of five sentences imposed are either within the guideline range or below the guideline range at the request of the government. However, there are certain trends the Commission finds troubling, including increased regional and demographic differences.”
The Commission undertook statistical analyses of federal sentencing data spanning a broad time frame, from October 1995 through September 2011, and focused on offenses that comprise over 80 percent of the federal criminal docket (drug trafficking, immigration, fraud, firearms, child pornography, and career offenders). The study shows that sentences for drug trafficking, immigration, and firearms offenses continue to track the guidelines closely, but in recent years sentences for fraud and child pornography offenses have increasingly diverged from the guidelines.
The rate at which courts impose sentences within the applicable guideline range has decreased over the four time periods studied, from a high of 70.1 percent to 53.9 percent during the most recent time period studied. Much of this decrease is attributable to a corresponding increase in below range sentences not requested by the government, from a low of 5.7 percent to 17.4 percent during the most recent time period. These trends were consistent across all offense types studied, but to different degrees depending on the offense. Sentencing data from the last two fiscal years indicates that the rate of below range sentences has plateaued.
The study also reveals increased differences in rates of below range sentences across the nation, ranging from less than ten percent in some districts to more than 40 percent in others during the most recent time period studied. Furthermore, judges within the same district increasingly vary from the guidelines at different rates.
The study shows that prosecutorial practices also contribute to differences in sentencing. For example, certain charging practices vary and prosecutors in more districts are making motions for below range variances from the guidelines....
In addition to the printed portion of the report, the Commission will soon be making extensive data and information available online.

Download Booker_PressRelease_final

Download Part A - Continuing Impact of Booker on Federal Sentencing

Lots and lots of commentary on the report will follow the days ahead, but today I am otherwise tied up.

January 31, 2013 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, January 30, 2013

"Montana lawmaker offers pain instead of prison"

A helpful reader altered me to this notable local story of a notable state sentencing proposal that, I suspect, ought to generate some interesting discussions.  The story has the same headline as this post, and here are excerpts:

A Montana lawmaker says convicts should be allowed to get out of prison time if they instead agree to the "infliction of physical pain" — an idea that so far is receiving a cool reception.

Republican Rep. Jerry O'Neil is drafting a bill that would allow those convicted of misdemeanors or felonies to negotiate corporal punishment instead of another sentence. The method used to inflict the pain would be decided by a judge.

The veteran lawmaker said Wednesday that he thinks long prison sentences are inhumane. "Ten years in prison or you could take 20 lashes, perhaps two lashes a year?  What would you choose?" O'Neil said.

He argued that the convict under his proposal could remain employed to pay restitution, and that it would potentially save the corrections budget millions of dollars per year. "It is actually more moral than we do now," O'Neil said of the lashings. "I think it's immoral to put someone in prison for a long time, to take them away from their family, and force that family to go on welfare."...

The House speaker's office noted that O'Neil bill was tied up in lengthy legal review and faces several hurdles. "It's a citizen legislature, and folks get to carry the bills they like on their own," said House Speaker Mark Blasdel, a restaurant owner from Somers.

House Minority Leader Chuck Hunter of Helena was speechless over a bill he said looks like it comes out of the 17th century. "Wow," Hunter said.

The Montana ACLU, opposed to physical pain and corporal punishment, sympathized with the effort to reduce prison populations.  "We agree with Rep. O'Neil that our state needs to find alternatives to over-incarceration and lengthy jail and prison sentences that are ineffective and costly, but we don't agree that corporal punishment is the solution," said Niki Zupanic, the group's public policy director.

"We support reducing sentences and increasing our investment in community corrections alternatives.  We need to put more and better options on the table, but corporal punishment is not one of them."  

Not only do I share Rep. Jerry O'Neil's viewpoint that long prison sentences are inhumane, I am eager to applaud his apparent eagerness to develop a creative alternative to imprisonment that would give defendants and judges more discretionary punishment options.  Indeed, if a bill were merely to allow defendants to propose corporal punishment options in lieu of any prison time, and especially if the severity to the corporal punishment is to be circumscribed and only availble upon the defendant's knowing request, I do not this provocative sentencing proposal should be dismissed out of hand immediately. 

After all, even short prison terms include, both formally and informally, the imposition of some significant measure of physical discomfort: one need not have seen the TV series Oz to realize prison food, lodging and companionship lacks many of the comforts of home.  Moreover, for persons who suffer from any number of medical conditions (both physical and mental), prison stays can involve persistent and sometimes extreme physical pain (and can sometimes become de facto death sentences).   And, personally, I would consider the emotional pain of being separated from my children for a decade or more to be far harder to imagine or endure than even a serious whipping (and, of course, my kids would really hate not having me around to drive them places).  

Of course, as with all creative sentencing proposals, the devil is in the details.  But, for now, I am eager to reserve judgment on Rep. O'Neil's bill until I see just how he tries to operationalize a potential corporal punishment alternative to long prison sentences.  More generally, I hope that those folks eager to support and help the interests of criminal defendants are not too quick to dismiss completely any creative efforts to develop any potentially more humane punishment option than long imprisonment to our modern sentencing toolbox.

January 30, 2013 in Scope of Imprisonment, Who Sentences? | Permalink | Comments (13) | TrackBack

"Ham Sandwich Nation: Due Process When Everything is a Crime"

The title of this post is the title of this timely new essay by Glenn Harlan Reynolds now available via SSRN.  Here is the abstract:

Though extensive due process protections apply to the investigation of crimes, and to criminal trials, perhaps the most important part of the criminal process — the decision whether to charge a defendant, and with what — is almost entirely discretionary.  Given the plethora of criminal laws and regulations in today's society, this due process gap allows prosecutors to charge almost anyone they take a deep interest in.  This Essay discusses the problem in the context of recent prosecutorial controversies involving the cases of Aaron Swartz and David Gregory, and offers some suggested remedies, along with a call for further discussion.

January 30, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Who will (and who should) replace AAG Lanny Breuer has head of DOJ's Criminal Division?

The question in the title of this post is prompted by this lengthy official DOJ press release, titled "Assistant Attorney General Lanny A. Breuer Announces Departure from Department of Justice." In addition to singing Breuer's praises, the press release explains that "Assistant Attorney General Lanny A. Breuer of the Justice Department’s Criminal Division will leave the department on March 1, 2013," and it notes that AAG Breuer "was unanimously confirmed by the U.S. Senate on April 20, 2009, and is the longest-serving head of the Criminal Division in recent history."

This Main Justice story about the departure, as well as this piece at the Washington Post, provides a more balanced and dynamic account of Breuer's work as head of DOJ's Criminal Division.  But none of these pieces discusses who might get to be the next head of the Criminal Division.  The Main Justice story does note that Manhattan US Attorney Preet Bharara has garnered praise for being tough on the folks on Wall Street, and thus I have to guess that his name would not be on any short list for this new DOJ openning.  Complicating this inside-the-Beltway guessing game is the fact that AG Eric Holder has talked about staying in his job for another year and then moving on himself. 

So, dear readers, I am interested in hearing opinions not only concerning who you think will get to be the next head of the DOJ Criminal Division, but also concerning who you think should get this job.  Given some of the praise for former US Attorney, and now US District Judge, John Gleeson today on the blog, I am inclined to wonder whether any current federal district judges with DOJ history might have an interest in switching branches. 

January 30, 2013 in Who Sentences? | Permalink | Comments (4) | TrackBack

Federal judges give Gov. Brown a six-month reprieve on California prison population deadline

As reported in this Sacramento Bee article, headlined "U.S. judges give California six more months to cut inmate population," the federal judges administering the Plata prison overcrowding litigation in California have modified their orders in the case.  Here are the details:

Three weeks after Gov. Jerry Brown declared the state's prison overcrowding crisis over, a court of three federal judges said Tuesday that state officials can have six more months to reduce the inmate population to the previously ordered level.

The judges noted that California officials have said they cannot meet the court's June 30 deadline for reducing its population to 137.5 percent of design capacity, but the officials believe they can hit that mark by Dec. 31.  "Accordingly, this court modifies the June 30, 2011, order by granting defendants a six-month extension in which to comply with its terms and provisions," said the order from 9th U.S. Circuit Court of Appeals Judge Stephen Reinhardt, U.S. District Judge Lawrence K. Karlton of Sacramento and U.S. District Judge Thelton E. Henderson of San Francisco.

Karlton and Henderson have overseen years of litigation aimed at bringing the level of mental and medical health care for inmates up to constitutional standards.  Following a trial, the three-judge court appointed by the 9th Circuit's chief judge ruled that the crowded conditions of the state's 33 adult prisons were the primary reason for the unconstitutional care.  Prisoners were jammed into areas of the prisons not designed for housing.  At some points, the number of inmates ballooned to double the designed capacity, and the U.S. Supreme Court endorsed the three-judge court's order.

Since the governor instituted his so-called realignment program a year ago to divert nonviolent, nonserious offenders to county jurisdictions, the state has made progress cutting the prison population, but Brown said he cannot release additional inmates without putting the public at risk.  Corrections officials indicated they are pleased with Tuesday's order but are still not satisfied.

"We are pleased the court recognized that releasing thousands of inmates to reach the arbitrary population cap by June would have jeopardized public safety," the state Department of Corrections and Rehabilitation said in a statement.  "However, we believe the court should go further and terminate the population cap entirely, as CDCR is providing a constitutional level of health care at current population levels."...

The federal court wants the prison population cut by the end of the year to about 110,000 inmates, down from about 119,000 currently.  The design capacity of the state's 33 adult prisons is about 80,000....

Michael Bien, lead attorney for the inmates, said Tuesday that "the order's message is the judges are going to hold the state to the numbers. Corrections got an extension, but it didn't get anything else. The question is still 'Are they going to comply?'" Brown and his prison officials "are still saying everything is just fine and the courts should go away and leave us alone," Bien said. "They claim the courts have no more jurisdiction since the constitutional standard has been met.  It's one thing to say that, it's another to prove it," he declared.  "They have a long way to go to do that.  They've made these claims before, but they've never been able to back them up."

January 30, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, January 29, 2013

"Washington vows to try to keep marijuana in state...but how?"

The title of this post is the headline of this lengthy new AP article, which gets started this way:

So far, no one is suggesting checkpoints or fences to keep Washington state’s legal pot within its borders.   But Gov. Jay Inslee insists there are ways to prevent the bulk smuggling of the state’s newest cash crop into the black market, including digitally tracking weed to ensure that it goes from where it is grown to the stores where it is sold.

With sales set to begin later this year, he hopes to be a good neighbor and keep vanloads of premium, legal bud from cruising into Idaho, Oregon and other states that don’t want people getting stoned for fun.

It’s not just about generating goodwill with fellow governors.  Inslee is trying to persuade U.S. Attorney General Eric Holder not to sue to block Washington from licensing pot growers, processors and sellers.  Marijuana remains illegal under federal law.  “I am going to be personally committed to have a well regulated, well disciplined, well tracked, well inventory-controlled, well law-enforcement-coordinated approach,” said Inslee, who is due to give Holder more details this week.

Keeping a lid on the weed is just one of the numerous challenges Washington state authorities and their counterparts in Colorado — where voters also legalized pot use — will face in the coming months.

The potential of regulatory schemes to keep pot from being diverted isn’t clear.  Colorado already has intensive rules aimed at keeping its medical marijuana market in line, including the digital tracking of cannabis, bar codes on every plant, surveillance video and manifests of all legal pot shipments.

But law enforcement officials say marijuana from Colorado’s dispensaries often makes its way to the black market, and even the head of the Colorado agency charged with tracking the medical pot industry suggests no one should copy its measures.  The agency has been beset by money woes and had to cut many of its investigators.  Even if the agency had all the money it wanted, the state’s medical pot rules are “a model of regulatory overreach,” too cumbersome and expensive to enforce, Laura Harris said in a statement.

A few recent and older related posts: 

January 29, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4) | TrackBack

House members ask DOJ to answer lots of questions about Swartz prosecution

As reported in this article from The Hill, "lawmakers on the House Oversight and Government Reform Committee on Monday demanded a briefing from Justice Department officials about the prosecution of Internet activist Aaron Swartz, who killed himself earlier this month." Here are more of the basics:

In a letter to Attorney General Eric Holder, Chairman Darrell Issa (R-Calif.) and ranking member Elijah Cummings (D-Md.) said there are "many questions" about how prosecutors handled the case. They demanded a briefing from DOJ officials by Monday, Feb. 4....

Critics, including Swartz's family and members of Congress, have accused prosecutors of seeking excessive penalties in the case.  The charges carried a maximum penalty of 35 years in prison and a fine of up to $1 million.  Prosecutors reportedly offered Swartz seven to eight months in prison if he pleaded guilty and told him they would seek seven to eight years if the case went to trial.

In their letter, Issa and Cummings asked Holder to justify the charges and penalties that prosecutors sought.  They asked whether Swartz's campaign against the the Stop Online Piracy Act (SOPA) or his association with advocacy groups influenced the prosecution. The lawmakers also asked whether the charges, penalties and plea offers were similar to other cases brought under the Computer Fraud and Abuse Act.

The detailed three-page letter to AG Eric Holder can be found at this link, and it makes for a very interesting read.  Sentencing fans should find these question within the letter especially notable:

3.  What specific plea offers were made to Mr. Swartz, and what factors influenced the decisions by prosecutors regarding plea offers made to Mr. Swartz?

4.  How did the criminal charges, penalties sought, and plea offers in this case compare to those of other cases that have been prosecuted or considered for prosecution under the Computer Fraud and Abuse Act?...

6.  What factors influences the Department's decisions regarding sentencing proposals?

7. Why was a superseding indictment necessary?

It is a darn shame that a suicide was needed for some members of Congress to begin asking some questions about how federal prosecutors exercise their charging and bargaining discretion. It is even more of a shame that it is unlikely that these important questions will ever get asked in hundreds of other federal prosecutions that, at least in my view, have been even more extreme than the prosecution of Aaron Swartz.  Nevertheless, it is still nice to an Oversight committee doing some oversight here in a seemingly bipartisan way, and I am already excited to see how DOJ responds next week.

Some recent related posts:

January 29, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12) | TrackBack

New Sentencing Project report on 2012 state statutory sentencing developments

I just received an e-mail promoting a notable new report just released by The Sentencing Project.  Here is the full text of the e-mail, signed by Marc Mauer, which includes a link to the report:

I am pleased to share with you a new report from The Sentencing Project, The State of Sentencing 2012: Developments in Policy and Practice, by Nicole D. Porter.  The report highlights reforms in 24 states that demonstrate a continued trend to reform sentencing policies and scale back the use of imprisonment without compromising public safety.  The report provides an overview of recent policy reforms in the areas of sentencing, probation and parole, collateral consequences, and juvenile justice.  Highlights include:

  • Mandatory minimums:  Seven states — Alabama, California, Missouri, Massachusetts, Kanas, Louisiana, and Pennsylvania — revised mandatory penalties for certain offenses,  including crack cocaine offenses and drug offense enhancements.
  • Death penalty: Connecticut abolished the death penalty, becoming the 17th state to do so.
  • Parole and probation reforms:  Seven states — Colorado, Delaware, Georgia, Hawaii, Louisiana, Missouri, and Pennsylvania — expanded the use of earned time for eligible prisoners and limited the use of incarceration for probation and parole violations.
  • Juvenile life without parole:  Three states — California, Louisiana, and Pennsylvania — authorized sentencing relief for certain individuals sentenced to juvenile life without parole.
I hope you find this publication useful in your work.  The full report, which includes a comprehensive chart on criminal justice reform legislation, details on sentencing, probation and parole, collateral consequences of conviction, juvenile justice and policy recommendations, can be found online here.  I’d encourage you to be in touch with Nicole D. Porter, Director of Advocacy, at nporter@sentencingproject.org to discuss how we can support your efforts in the area of state policy reform.

January 29, 2013 in Data on sentencing, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, January 28, 2013

Intriguing Massachusetts developments in response to SCOTUS Miller ruling

As reported in this local article, Massachusetts Gov. Deval Patrick has today set out "proposed legislation that would eliminate mandatory life sentences without parole for teens under 18 convicted of first-degree murder."  Here is more from the article:

The measure filed by Patrick Monday would also raise the age for juvenile court jurisdiction from 17 to 18 in Massachusetts. Under current state law, teens as young as 14 can be tried as adults for first-degree murder. Conviction on first-degree murder carries an automatic life sentence without parole in Massachusetts.  Patrick’s bill would still allow life sentences without parole for juveniles under certain circumstances....

The U.S. Supreme Court ruled last year that mandatory life sentences without parole for juveniles are unconstitutional.  Because of that Supreme Court case -- Miller v. Alabama -- the change proposed by Patrick to eliminate mandatory life sentences for teens is not a great surprise, several lawyers said....

According to a prepared statement issued by Patrick’s office, “An Act to Reform the Juvenile Justice System in the Commonwealth” will create a fairer justice system for the state’s youth.   “Every violent felon should be held accountable for their actions, even youth.  But in sentencing every felon’s circumstances should be considered, too, and youth itself is a special circumstance,” Patrick said.  “It is time for the Commonwealth’s laws to reflect the value, in accord with the Supreme Court, that young people deserve every opportunity for rehabilitation and reform,” he said.

State Public Safety Secretary Andrea Cabral said, “The governor’s legislation recognizes the importance of providing juveniles with age-appropriate resources for rehabilitation. It builds on established research that proves an adolescent brain affects behavior and judgment, but that rehabilitation is possible.”

“Fair treatment of juveniles requires both holding them accountable for their actions and ensuring the highest degree of public safety in order to keep the Commonwealth’s neighborhoods safe and secure," she said.

This lengthy press release from Gov. Patrick's office provides a lot more detail on the details in the juve justice reforms now being proposed in the Bay State.

January 28, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Who Sentences? | Permalink | Comments (1) | TrackBack

"Anonymous re-hacks US Sentencing site into video game Asteroids"

This blog post via ZDNet provides the latest notable news concerning this weekend's hacking of the US Sentencing Commission's website (first reported here):

The U.S. Sentencing Commission website has been hacked again and a code distributed by Anonymous "Operation Last Resort" turns ussc.gov into a playable video game.

Visitors enter the code, and then the website that sets guidelines for sentencing in United States Federal courts becomes "Asteroids." Shooting away at the ussc.gov webpage reveals an image of Anonymous.

The trademark Anonymous "Guy Fawkes" face is comprised of white text saying, "We do not forgive. We do not forget."

Update Sunday, January 27, 11pm PST: the ussc.gov website has been offline intermittently, ostensibly due to high traffic. Anonymous Operation Last Resort tweeted the Asteroids hack can be "played" on yet another U.S. government website: "Backup gaming site while USSC.gov is down miep.uscourts.gov " (the U.S. Probation Office for the state of Michigan). This suggests, in this writer's opinion, that Anonymous has background control of multiple U.S. government websites - and after the antics this weekend, the group likely has had this access for a while and they are playing a game of cat-and-mouse with the United States Department of Justice.

Hacktivist group Anonymous began its "Operation Last Resort" Friday night by hacking the U.S. Sentencing Commission website in the name of suicide victim Aaron Swatrz, demanding reform in the U.S. justice system.

The government website was pulled offline and restored by Saturday. Now, on Sunday afternoon, the U.S. Sentencing Commission website appears to have been compromised a second time, severely, wherein a code being issued by Operation Last Resort and other Anonymous social media accounts turns ussc.gov into a game of Asteroids.

Prior related post:

January 28, 2013 in Who Sentences? | Permalink | Comments (29) | TrackBack

Saturday, January 26, 2013

Channeling Justice Brennan, new Ohio Supreme Court Justice dissents from order setting execution date

As reported in this AP piece,the "Ohio Supreme Court has set an execution date for a condemned killer who stabbed a 10-year-old girl."  That fact alone is not especially noteworthy, though the date scheduled and a dissent from a newly elected Justice makes this otherwise routine matter blogworthy:

The Supreme Court on Friday set a May 14, 2015, execution date for [Jeffrey] Wogenstahl.

Justice William O'Neill dissented, saying the death penalty is "inherently both cruel and unusual" and is unconstitutional.  The Democrat said it was time for Ohio to end what he called an outdated form of punishment.  O'Neill's comments were unusual for what is usually a routine matter.  Even Justice Paul Pfeifer, now a death penalty opponent who wants Ohio's law overturned, voted in favor of the date and sometimes upholds death sentences.

That Ohio is now setting execution dates now nearly 30 months out (and only after decades of capital appeals) provides yet another interesting window on the realities of capital justice delayed.  But even more interesting is that Justice O'Neill appears to indicating that he will dissent from any and every effort to implement the death penalty in Ohio.  His full dissent is available at this link, and here are excerpts:
If there exists a case that is appropriate for the imposition of the death sentence, this case clearly qualifies. Appellant was convicted of kidnapping a ten-year-old girl from her home, taking her to a secluded area, and stabbing her to death.  There can be no disputing that this was a horrific act that is deserving of the strongest penalty possible.

Without expressing an opinion as to appellant’s guilt or innocence, however, I would hold that capital punishment violates the Eighth Amendment to the Constitution of the United States and Article I, Section 9 of the Ohio Constitution.  The death penalty is inherently both cruel and unusual and therefore is unconstitutional.

Capital punishment dates back to the days when decapitations, hangings, and brandings were also the norm. Surely, our society has evolved since those barbaric days.  The United States is one of just a few civilized countries that still permit state executions.

To date, 17 states and the District of Columbia have eliminated the death penalty altogether.  It is clear that the death penalty is becoming increasingly rare both around the world and in America.  By definition it is unusual....

Additionally, death, even by lethal injection, is a cruel punishment. One need only look at the recent Ohio case of Romell Broom for a demonstration of that proposition.  Although the executioners spent over two hours attempting to find a vein through which to administer the lethal injection, they ultimately failed.  Subsequently, the governor granted a one-week reprieve....

Broom remains on death row today.  A more chilling definition of cruel is hard to imagine....

The time to end this outdated form of punishment in Ohio has arrived.  While I recognize that capital punishment is the law of the land, I cannot participate in what I consider to be a violation of the Constitution I have sworn to uphold.  I must respectfully dissent.

January 26, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (27) | TrackBack

Anonymous hacks USSC website to avenge Aaron Swartz's suicide

Anon hack of USSCAs reported in this new AP article, "Anonymous says it hijacked the website of the U.S. Sentencing Commission to avenge the death of Aaron Swartz, an Internet activist who committed suicide." Here is more on this intriguing (and somewhat misguided) bit of internet protest:

The website of the commission, an independent agency of the judicial branch, was taken over early Saturday and replaced with a message warning that when Swartz killed himself two weeks ago "a line was crossed."  The hackers say they've infiltrated several government computer systems and copied secret information that they now threaten to make public.

Family and friends of Swartz, who helped create Reddit and RSS, say he killed himself after he was hounded by federal prosecutors.  Officials say he helped post millions of court documents for free online and that he illegally downloaded millions of academic articles from an online clearinghouse.

The Justice Department had no immediate comment Saturday.

And thanks to How Appealing, I found here a fascinating statement purporting to explain the role and goal of this form of "hackivism." Here is one of many notable excerpts:

Last year the Federal Bureau of Investigation revelled in porcine glee at its successful infiltration of certain elements of Anonymous. This infiltration was achieved through the use of the *same tactics which lead to Aaron Swartz' death. It would not have been possible were it not for the power of federal prosecutors to thoroughly destroy the lives of any hacktivists they apprehend through the very real threat of highly disproportionate sentencing.

As a result of the FBI's infiltration and entrapment tactics, several more of our brethren now face similar disproportionate persecution, the balance of their lives hanging on the severely skewed scales of a broken justice system.

We have felt within our hearts a burning rage in reaction to these events, but we have not allowed ourselves to be drawn into a foolish and premature response. We have bidden our time, operating in the shadows, adapting our tactics and honing our abilities. We have allowed the FBI and its masters in government -- both the puppet and the shadow government that controls it -- to believe they had struck a crippling blow to our infrastructure, that they had demoralized us, paralyzed us with paranoia and fear. We have held our tongue and waited.

With Aaron's death we can wait no longer. The time has come to show the United States Department of Justice and its affiliates the true meaning of infiltration. The time has come to give this system a taste of its own medicine. The time has come for them to feel the helplessness and fear that comes with being forced into a game where the odds are stacked against them.

This website was chosen due to the symbolic nature of its purpose -- the federal sentencing guidelines which enable prosecutors to cheat citizens of their constitutionally-guaranteed right to a fair trial, by a jury of their peers -- the federal sentencing guidelines which are in clear violation of the 8th amendment protection against cruel and unusual punishments.  This website was also chosen due to the nature of its visitors.  It is far from the only government asset we control, and we have exercised such control for quite some time...

I think the US Justice Department's website or maybe the websites of various local US Attorneys' offices would have been a more fitting target for these hackers, especially since the federal sentencing guidelines are now advisory.  (Notably, this Reuters article wrongly describes the US Sentencing Commission as part of the Justice Department.  In fact, as the above AP article gets right, the USSC is an independent commission in the judicial branch.)

I suppose I should just be grateful that Anonymous et al. have not gone after my blog.  But perhaps Bill Otis should be on high alert.

UPDATE:  And here is a video on YouTube from the hackers articulating the sentiments in the statement along with accompanying images.  And Josh Blackman adds some commentary here.

January 26, 2013 in Who Sentences? | Permalink | Comments (35) | TrackBack

Friday, January 25, 2013

How will social conservatives react when medical marijuana meets parental rights?

1994343_GIn this lengthy post, I suggested that positions on modern marijuana policies may now provide an effective means to distinguish bewteen social conservatives (who will generally oppose reforms and favor big government prohibition policies) and fiscal conservatives (who will be open and perhaps eager to get the cost savings from scaling back this seemingly inefficient part of the government's drug war).  But this new local article from Oregon, which is headlined "Oregon family uses medical marijuana to manage son's autistic rage," prompts the question in the title of this post and lead me to think marijuana reform advocates might seek to sway some social conservatives by highlighting medical marijuana stories that implicate parental rights to raise and help their children as they see fit. Here are the basics of the story prompting this thinking:

An Oregon family has turned to medical marijuana to manage their son's severe autistic rage.  "It was indescribable, it was horrifying," said Jeremy Echols, father of 11-year-old Alex. "When you've got no other options, are you honestly gonna say no?"

Eleven-year-old Alex Echols is severely autistic, and his doctor said Alex's self-destructive behavior is brought on by Tuberous Sclerosis, a rare, genetic disorder that affects about 50,000 people in the U.S. The disorder causes unregulated growth of non-malignant tissue in organs.  In Alex's case, his neurologist said growths in Alex's brain have led to seizures and autism....

Echols said by the time Alex was 5, he exhibited intense, self-directed rage.  Echols showed us home videos of the rage.  He said they videotaped the episodes to show doctors the injuries were self-inflicted.  Echols said Alex head butted anything he could. He said the boy bruised his forehead so badly, the blood would drain down until Alex's entire face was black and blue.  His parents got him a helmet to protect his head, swaddled him like a newborn and tried mood-altering drugs to control the behavior, with little success.

Alex's daily, violent behavior became the Eugene family's new normal. When he was eight years old, the Echols made the heartbreaking decision to move Alex into a state-funded group home. "It was like we were throwing him away, like we were giving him to somebody else and saying, 'Sorry buddy, you're not part of the family anymore,'" he said. "It was pretty rough." But was there a way to help him?

In late 2009, the Echols said they saw a television news story about a California woman who was using medical marijuana to treat her autistic son. The Echols researched Oregon's medical marijuana program, and in 2010, a doctor approved Alex for medical marijuana use. "We tried the (marijuana) brownies, we tried butter for cookies," he said.

Alex is now one of 58 minors currently protected under the Oregon Medical Marijuana Act. While autism is not a qualifying medical condition like cancer or severe pain, in Alex's case, his seizures were.  And after a few months of treatment, the Echols said they saw a dramatic improvement. "He went from being completely, yelling, screaming, bloodying his face, to within an hour, hour and a half, he would be playing with toys, using his hands," he said. "Something that at that time was almost unheard of."

Echols said Alex's group home will not administer the marijuana, so, about three times a week off-site, his parents give Alex a liquid form of the drug by mouth. The dosage is up to the parent and Oregon law does not require a doctor to monitor a child's medical marijuana use. In fact, Alex's neurologist didn't know about the alternative treatment, until we told him.

While Dr. Roberts did not condone the treatment, he said he understood the family's desire to help their child. "Alex's parents are wonderful people." he said. "I certainly am very much with them in my desire to help Alex. All of us want to help Alex."

The American Academy of Pediatrics has circulated a resolution that opposes the use of medical marijuana in children. Dr. Sharon Levy, an assistant professor of pediatrics at Boston's Children's Hospital and chairwoman of the AAP's committee on substance abuse, told FOX 12 marijuana is toxic to children's developing brains. She also said enough isn't known about the drug's long-term effects.

"For us, the long-term side effects that are unknown for something that can't kill him are a lot better than the long-term side effects of him beating himself bloody," Echols said.  The Echols also said they're not advocating the use of medical marijuana for all autistic children, but they say those who walk a mile in their shoes may not consider the treatment so extreme.  The Echols have set up a Facebook page that chronicles Alex's journey. You can find their blog at www.facebook.com/alex.autism.rage.mmj.

Among other issues that this interesting story raises is my enduring question/concern about whether and when we will ever hit constitutional limits on federal authority to enforce its steadfast commitment to pot prohibition.  Though I certainly hope this is only a hypothetical question, I still wonder whether readers (particularly those supporting federal pot prohibition) would agree with my belief that the Echols would and should have some kind of federal constitutional defense — based on substantive due process, perhaps — if local federal prosecutors were to seek to prosecute and severely punish the Echols for knowingly and repeatedly distributing a Schedule I drug to their child.

A few recent and older related posts: 

January 25, 2013 in Marijuana Legalization in the States, Offender Characteristics, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (31) | TrackBack

Thursday, January 24, 2013

New ACS issue brief on the the federal pardon process

BookletI just learned that the American Constitution Society (ACS) is putting out series of new Issue Briefs, under the heading “Toward a More Perfect Union: A Progressive Blueprint for the Second Term,” which seeks to offer ideas and proposals "to advance a vision consistent with the progressive themes President Obama raised in his second Inaugural Address."  And I am pleased to see that one of the initial publications in this series is authored by Margaret Colgate Love and is available at this link.  Here is how ACS describes this Issue Brief at this page:

ACS is pleased to distribute “Reinvigorating the Federal Pardon Process: What the President Can Learn from the States” by Margaret Colgate Love of the Law Office of Margaret Love and formerly of the Office of the U.S. Pardon Attorney.

The presidential exercise of the pardon power, or lack thereof, has been the subject of national conversation in recent months.   As Margaret Colgate Love describes in her Issue Brief, this much discussed, but not often used, executive power and process "has lost its vigor, its integrity, and its sense of purpose.”  The latest assessments of the federal pardon process suggest a process plagued by racial and class disparities, and in at least one case, misconduct on the part of the Pardon Attorney.

Rather than "live with a dysfunctional pardon process," Love identifies state pardon models that the President and federal justice system could adopt.  Highlighted for their “authority,” “accountability,” and "transparency," Love explains that these models are necessary responses to the "hard to understand and even harder to penetrate, operating in secret and accountable to no one" Justice Department Pardon Office.   According to Love, “there is not a single state whose pardon process is as poorly conceived and managed as the federal government’s.” The process must “evolve with the changing needs of the presidency and of the justice system,” Love concludes.

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

January 24, 2013 in Clemency and Pardons, Who Sentences? | Permalink | Comments (0) | TrackBack

"Sentenced to Confusion: Miller v. Alabama and the Coming Wave of Eighth Amendment Cases"

The title of this post is the title of this recently published essay by Craig Lerner, which gets started this way:

In Miller v. Alabama, the Supreme Court held unconstitutional roughly 2,000 life-without-parole sentences,which had been imposed on juveniles by twenty-eight states and the federal government.  The nominal license for the exercise of this power was the Constitution’s Eighth Amendment, which proscribes “cruel and unusual punishments.”  The astute (or perhaps naïve) reader will wonder: how can 2,000 sentences imposed by a majority of U.S. jurisdictions be unusual?  For that matter, is it possible that a majority of U.S. jurisdictions countenance a “cruel” punishment?

These questions are premised on the now-quaint idea that the phrase “cruel and unusual punishments” was relevant to the Court’s decision in Miller. Although the Court has touted adherence to the Constitution’s text and its historical understanding as a basic interpretive principle in decisions examining the Second, Fourth, and Sixth Amendments, this even-numbered originalism collapses at“eight.”  The jurisprudence of he Eighth Amendment was long ago untethered from its text, and as a consequence, the decision in Miller came as little surprise.

January 24, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

Lots of interest and interesting ideas in Washington forum concerning marijuana legization implementation

How Colorado and Washington seek to implement their new regimes of legalizaed marijuana should be a fascinating story to watch throughout 2013 and beyond.  And this new local article from the Evergreen State, headlined "Washington Pot Forum Draws Standing Room Crowd," provides a window into the interesting discussions already taking place in one of these states:

The first public forum on how to implement Washington’s new marijuana law drew a capacity crowd Tuesday night in Olympia. The state’s Liquor Control Board is seeking input as it writes the rules for enacting Initiative 502 – Washington’s new pot legalization law.

They arrived early and in droves – the smell of marijuana clung in the air. First in line to get a seat for the forum was Leslie Tikka of Olympia. She mainly came to see a bit of history in the making. “I’ve thought about getting a license and holding it because I think it would be valuable because no one knows what’s going to happen with it," Tikka said. "But I don’t think I’d want to go in production. I don’t know enough.”

Inside, Liquor Control Board chair Sharon Foster had one reaction to the standing room only crowd: “wow.”... Foster told the audience Washington is about to go where no other state has gone before. The task over the next year: create a complex system to license marijuana producers, processors and sellers. And the audience had plenty of advice.

Justin Pitts came to Olympia all the way from Spokane. He has a felony conviction for pot and said that shouldn’t disqualify him from getting a license. “I’m one of the casualties that at 20 years old I got caught with a backpack full of pot and became a felon from it," Pitts explains. "Twenty years later now I’ve no other convictions, no problem, have multiple businesses and pay lots of taxes but yet I would be barred.”

Other suggestions: license as many producers as qualify in order to flood out the black market. Survey the public to see how much pot will be needed to meet demand – and then double it. Take into account the environmental impact of marijuana production.

It was mostly a ball caps and t-shirt crowd. But there was one guy in a pinstripe suit. Jamen Shively is a former Microsoft strategist. Now he plans to open high-end marijuana retail shops. “Our target market is baby boomers and so you’re going to have a lot of baby boomers. Maybe they tried the product 40 years ago, maybe they didn’t inhale," Shively says. "Well, now it’s safe to inhale. And the product has changed a lot.”...

The Liquor Control Board has five more public meetings scheduled around the state and plans to add more dates as needed.

January 24, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, January 23, 2013

More notable talk of more notable sentencing reforms (and a sentencing commission) in Texas

For many years and for many reasons, Texas has been among the most interesting and dynamic modern sentencing reform states.  And this new article from the Austin American-Statesman, headlined "Prison reform outlook improves with business group’s involvement," details why the past, present and future of sentencing in the Lone Star State merits close attention from all sentencing fans. Here are snippets from this new article:

Now, with an influential business lobby group and a leading conservative organization leading the charge, some legislative leaders are wondering whether this year’s 140 days of lawmaking could rival the 2007 session.  That year, lawmakers approved a historic $240 million initiative to provide addiction treatment and rehabilitation programs for convicts rather than building new prisons, a gamble that has since paid off — and become a national model.

This year, just two weeks into the legislative session, there are active discussions about expanding a variety of community-based corrections programs with state funds, changing state laws to rehabilitate low-level drug offenders in programs rather than in expensive state prisons, and even to ease laws that limit ex-convicts’ employment.

“The Legislature this year has an opportunity to take the next step,” said Marc Levin, director of the Center for Effective Justice at the conservative Texas Public Policy Foundation.  Levin helped bring in the support of the Texas Association of Business to push the smarter-on-crime agenda.   “The current system is a drag on our vitality as a state. The more people we can get into less costly treatment and rehabilitation programs that are successful, the better off we’ll be,” he said.

Bill Hammond, a former legislator who is president of the Texas Association of Business, agrees: “The current system costs too much. We’re looking at this from a business standpoint, that some changes are good public policy.”  Even state Sen. John Whitmire, a Houston Democrat who is an architect of many of the previous reforms, says he is hopeful that meaningful reforms could be in the offing, thanks to an unexpected new ally....

Proposals sparking the most discussion so far include:

• Allowing more low-level offenders caught with small amounts of certain drugs to be sentenced to local rehabilitation and treatment programs instead of prison, and letting shoplifters and other petty criminals serve their sentences under community-based supervision. ...

• Making prostitution a misdemeanor offense, rather than a low-level felony. The change could eventually remove several hundred women from state lockups and place them in local rehab programs that have been highly successful elsewhere. The difference in cost: $15,500 a year for a state cell vs. $4,300 for a bunk in a community program.

• Creating a new commission of judges, prosecutors and other officials to review sentencing practices across the state.  The panel was recommended by a recent government-efficiency report by the Legislature Budget Board.  If adopted, it would be the first time the state’s criminal laws have been reviewed for streamlining since 1993....

• Allowing dozens of terminally ill and bedridden offenders to be more easily paroled, a move that could save the state millions of dollars in prison medical costs.  At $700 million a year, the medical tab is one of the fastest-growing items in the state budget. The 10 sickest convicts in 2011 cost taxpayers nearly $2 million....

Crime victims and police groups that have campaigned to increase criminal penalties say they will be watching for any changes that might be too soft on crime.  But some acknowledge that discussion of successful, less costly alternatives to prison is timely. “As long as public safety remains the most important priority, I’m sure there’s room for improvement,” said Kat Peterson, a Dallas resident who been a frequent fixture at legislative hearings over the past decade — both as a onetime victim of violent crime and an advocate for her cousin who is serving a long sentence in a state prison.  “Even a good system can be reformed to make it better.”

I often look to Grits for Breakfast when I want to know more about the latest comingsand goings on Texas criminal justice issues, and Grits had had these recent notable posts on this front:

January 23, 2013 in Criminal Sentences Alternatives, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Seventh Circuit finds unconstitutional Indiana statute prohibiting sex offenders from social media

The Seventh Circuit today handed down a significant new media and sex offender First Amendment ruling in Doe v. Prosecutor, Marion County, Indiana, No. 12-2512 (7th Cir. Jan 23, 2013) (available here).  Here is how the 20-page unanimous panel ruling gets started:
A recent Indiana statute prohibits most registered sex offenders from using social networking websites,instant messaging services, and chat programs. John Doe, on behalf of a class of similarly situated sex offenders, challenges this law on First Amendment grounds. We reverse the district court and hold that the law as drafted is unconstitutional. Though content neutral, we conclude that the Indiana law is not narrowly tailored to serve the state’s interest. It broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors.

I am pretty sure this is the first significant circuit court constitutional ruling on this kind of state sex offender internet prohibition, and a quick skim suggests that this Doe ruling is a fairly thorough and thoughtful review of the challenging legal and policy issues raised in this setting. I would guess that Indiana will seriously consider seeking en banc review and/or a cert petition in an effort to preserve its statute, but I would also predict that the Justice may think these issues ought to percolate more before granting review.

UPDATE This Politco piece about the Doe ruling provides some information about similar rulings and a statement from the Indiana AG in reaction to the decision:

A similar law in Louisiana was thrown out in February of last year, though the state then passed a revised law requiring sex offenders to disclose their status on social networks, and a Nebraska judge in 2009 blocked parts of a sex offender law that restricted Internet access.

Indiana officials did not know Wednesday whether they would appeal the decision.  “The Indiana Legislature made a policy decision in 2008 that the state’s reasonable interests in protecting children from predators outweighed the interest of allowing convicted sex offenders to troll social media for information.  We have worked with county sheriffs and prosecutors in our defense of the legal challenges to these protections of our children, and we will need to review this 7th circuit ruling to determine the state’s next steps,” Indiana Attorney General Greg Zoeller said in a statement.

January 23, 2013 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Talk in Vermont of requiring judges to consider directly costs of sentence

This local article, headlined "Sentencing in Vt: Factor in cost?," reports on an interesting sentencing debate now taking place in the Green Mountain State.  Here are highlights:

As part of an effort to curb rising corrections budgets, the Senate is contemplating legislation that would require Vermont judges to consider the cost of a sentence before handing down jail time.  Sen. Dick Sears, chairman of the Senate Judiciary Committee, said it would be up to individual judges to decide whether to allow the information to influence their sentencing decisions.  But with the annual cost of incarcerating an inmate in Vermont at $45,000, Sears said judges at least ought to be aware of the financial consequences of their decisions.

“I’m not suggesting we shouldn’t lock somebody up for 20 years,” Sears said Tuesday. “But if we do, it’s going to cost us $650,000, in today’s dollars, and we need people in the system to be asking themselves: Is that a good investment?”

Requiring judges to consider the cost of their sentences is the most controversial provision in a bill that seeks broader reforms to the sentencing process. The bill would provide judges information about the average sentences for certain crimes — a measure aimed at remedying the disparity in sentencing across county lines. The bill also would institute a risk assessment for offenders, before sentencing, as a means of helping judges evaluate the merits of various options.

Bram Kranichfeld, the new executive director of the Department of State’s Attorneys and Sheriffs, said cost should have no bearing on sentencing.  “You can end up with unfair results, you can end up with arbitrary results, if a judge is required in every case to take cost into account,” Kranichfeld said.

He said state’s attorneys support efforts to track the costs of various sentencing options, and to come up with metrics that might help determine how “successful” various sentences are.  But he said issues of cost should be used to shape policy, not to influence the length of a sentence in a specific case.

“If a judge was otherwise going to give someone life in prison for a horrible crime, would it be appropriate to give them less than that solely because of the cost?” Kranichfeld said. “On lower-level cases, it’s the same sort of issue. Would it be appropriate for a judge to give someone 20 days in jail if he or she thought 30 days in jail was appropriate and equitable, simply because the 10 extra days is going to cost more?”

Sears said the issue of price shouldn’t play a role in sentencing for violent crimes.
“But it maybe should have some impact on some crimes that are nonviolent in nature, which is an area we’ve been working over the past eight years trying to lower recidivism,” Sears said.  “OK, I can put this baggy-pant kid in jail for awhile and it’s going to cost me $75,000, or I can put him in drug treatment and it’ll cost me $10,000. If he’s been breaking into cars and stealing stuff, you need a punishment. But with such limited resources now, maybe cost ought to be a factor in what you want to do with him.”...

Defender General Matt Valerio, who oversees a public defense system that represents the vast majority of defendants in criminal cases, said lawyers in his office have in the past sought to use cost as a factor in sentencing.  In every case, Valerio said, they have “roundly been … shot down.”

Valerio said cost should be a factor in sentencing, especially in instances when courts are weighing retribution versus rehabilitation.  “If you feel like you want to take out society’s anger with a situation on a person, rather than getting them a rehabilitative sentence, then we ought to know what that’s going to cost so you know how much you’re going to spend for society to impose its punishment,” he said.

January 23, 2013 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, January 22, 2013

"Indonesia sentences British woman to death for drug smuggling"

The title of this post is the headline of this notable international sentencing story which I suspect will get a significant measure of worldwide attention for various reasons.  Here are the details:

A 56-year-old British woman caught smuggling blocks of cocaine in her suitcase has been sentenced to death in Indonesia.  Prosecutors in Bali had asked for a 15-year sentence for Lindsay June Sandiford, who was arrested last May carrying what officials said was cocaine worth an estimated $2.6 million.

But a panel of judges opted Tuesday to hand down the death penalty.  Their decision was based on the defendant having shown no regret for what she did, Indonesian state news agency Antara reported.

Sandiford, from northeast England, was found to have blocks of cocaine weighing 4.7 kilograms (10.4 pounds) in her suitcase when she arrived on the island of Bali in May, the court heard.

"We were surprised by the decision, because we never expected the death penalty," Ezra Karo Karo, a lawyer acting for Sandiford, is quoted by Antara as saying.  He said the judge did not consider mitigating circumstances in his client's case, such as that she acted under the threat of violence to her family, the news agency reported.

The UK Foreign Office confirmed the sentence but said only that it would continue to provide consular assistance.   "The UK remains strongly opposed to the death penalty in all circumstances," a Foreign Office statement said.

Indonesia, the world's most populous Muslim nation, has strict laws against drug trafficking.   The head of Bali's Customs and Excise Agency monitoring division, Made Wijaya, warned at the time of her arrest that Sandiford could face execution if convicted.

"The main reason is because narcotics can massively endanger the young and, thus, whoever is caught with drugs should be severely punished.  If three people can consume one gram of cocaine, then this operation has potentially saved up to 14,000 lives," he said....

Any appeal for Sandiford must be filed within 14 days....  Sandiford's lawyer told Antara that it was likely that his client would appeal the sentence.

January 22, 2013 in Death Penalty Reforms, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (4) | TrackBack

DC Circuit rejects efforts to force DEA to consider "rescheduling" of marijuana

As reported in this AP article, the DC Circuit earlier today "rejected a petition to reclassify marijuana from its current federal status as a dangerous drug with no accepted medical use." Here is more about the ruling and its context:

The appeals court panel denied the bid from three medical marijuana groups, including Americans for Safe Access, and several individuals. In 2011, the Drug Enforcement Administration had rejected a petition by medical marijuana advocates to change the classification.

In his majority opinion, Judge Harry T. Edwards wrote that the question wasn't whether marijuana could have some medical benefits, but rather whether the DEA's decision was "arbitrary and capricious." The court concluded that the agency action survived a review under that standard....

In the federal system, marijuana is classified as a controlled substance, categorized as having a high potential for abuse and no currently accepted medical use, together with drugs like heroin, LSD and ecstasy.

The court noted that the DEA denied the petition to change the classification after the Department of Health and Human Services gave the DEA its evaluation that marijuana lacks a currently accepted medical use in the United States. DEA regulations define "currently accepted medical use" to require, among other things, "adequate and well-controlled studies proving efficacy."

Americans for Safe Access cited more than 200 peer-reviewed published studies demonstrating marijuana's efficacy for various medical uses, including a 1999 study by the respected Institute of Medicine, a government adviser on health issues. "The IOM report does indeed suggest that marijuana might have medical benefits," the court conceded. "However, the DEA fairly construed this report as calling for 'more and better studies to determine potential medical applications of marijuana' and not as sufficient proof of medical efficacy itself."

The lengthy opinion in Americans for Safe Access v. DEA, No. 11-1265 (D.C. Cir. Jan. 22, 2013), is available at this link. There is a dissent from the panel ruling, though it is focused only on the question of standing and argues that the panel majority ought not have reached the merits.   I presume there may be an effort to bring this issue to an en banc court or even to the Supreme Court, though upon first impression I am disinclined to predict any change in the outcome in this matter.

January 22, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (5) | TrackBack

More proof mandatory sentencing laws are never really mandatory and can enhance disparities

Guns-prison5One typical argument for mandatory sentencing provisions, whether in the form of statutory minimums or rigid guideline structures, is that they ensure all persons who commit a certain kind of crime will be sure to get a certain kind of sentence. But even if one believes such one-size-fits-all approach to sentencing can be justified normatively in some settings, real-world evidence reveals again and again and again that criminal justice actors will devise various ways (some hidden, some in the open) to avoid consistent application of these mandates. The latest proof of this reality appears in this lengthy article from yesterday's New York Times, which is headlined "Prison Isn’t as Mandatory as State’s Gun Laws Say." Here are excerpts:

The last time New York State’s gun laws were tightened, Mayor Michael R. Bloomberg rolled out a graphic reminder of what would happen to anyone caught carrying a loaded, illegal weapon. “Guns = Prison,” public service posters proclaimed categorically.  In 2006, the mandatory prison sentence was increased to 3.5 years from 1 year.

Five years later, though, that equation seemed decidedly more equivocal.  In 2011, the latest year for which sentencing statistics are available, fewer than half the defendants who had been arrested for illegal possession of a loaded gun in New York City received a state prison sentence, according to an analysis of criminal justice statistics by the mayor’s office.  In the Bronx, as few as 31 percent were imprisoned. In Brooklyn the rate was 41 percent; in Staten Island it was 47 percent; in Manhattan it was 68 percent; and in Queens it was 76 percent.

Still, the proportion of defendants sentenced to prison represents an improvement over previous years, said John Feinblatt, the mayor’s chief policy adviser and criminal justice coordinator.  “Before the new law in 2006, which required anyone convicted of felony possession of an unlicensed loaded gun to serve three and a half years, the prison rate was 28 percent,” he said.  “We’ve made a lot of progress.”

But the fact that only half the suspects arrested wind up in state prison also demonstrates that the prerogatives of prosecutors and judges still create a lot of wiggle room, particularly in cases that are weaker or have mitigating circumstances.   Mr. Feinblatt said the laws had what he called a “gigantic loophole”: prison sentences are mandatory except where the interests of justice would dictate otherwise. “You could drive a Mack truck through that,” he said.

Sometimes, he said, prosecutors reduce the charges appropriately as a result of plea bargaining, which spares the time and expense of going to trial in a marginal case, as when a weapon is found in a car carrying several people and it is difficult to prove who had physical possession, or the seizure is subject to constitutional challenges over its reasonableness.  In pressing for a stricter assault weapons ban last month, Gov. Andrew M. Cuomo said the law had “more holes than Swiss cheese.”

Even some of the more stringent assault weapons provisions rushed through the Legislature last week, while raising minimum penalties, have left some prosecutors puzzled.  For example, the new law says those penalties “shall” be imposed, not “must be.”  The law also leaves some latitude if a judge, “having regard to the nature and circumstances of the crime and to the history and character of the defendant,” finds that meting out consecutive sentences for multiple offenses “would be unduly harsh and that not imposing such sentence would be consistent with the public safety and would not deprecate the seriousness of the crime.”

Richard A. Brown, the district attorney in Queens, has taken the word “mandatory” more literally.  “The statistics bear out the effectiveness of the supply-and-demand strategy that we have been following for some time here in Queens,” he said.  “On the one hand, we aggressively go after the gun supply by going after those who traffic in illegal weapons, and on the other hand we concentrate on controlling the demand for illegal guns by making it clear that if you illegally possess a gun in Queens County, there is a very strong likelihood that you are going to state prison.”...

The ratio of arrests to prison sentences is only one measure of the law’s effectiveness.  By another measure, of the 448 defendants sentenced in New York State in 2011 after conviction on the top illegal gun possession charge, 437 received a term of at least three and a half years.  That same year, 3,018 people were arrested on that charge in the state. State Division of Criminal Justice Services officials caution that comparisons between arrests and convictions can be imprecise because not all the cases are adjudicated in one calendar year.

Steven Reed, spokesman for the Bronx district attorney, said the comparison of arrests and prison sentences of three and a half years also did not account for the number of shorter prison sentences imposed after guilty pleas, or after the many convictions in the cases that prosecutors chose to try.  “When those numbers are included, the incarceration rate for gun cases in the Bronx is nearly 85 percent,” he said.  (In Queens that rate is 98 percent.)...

Still, Mr. Feinblatt, the mayor’s criminal justice coordinator, suggested that the 50 percent mandatory minimum imprisonment rate remained too low.  “Maybe I can’t answer what should it be,” he said, “but when I look and see that one borough is doing 76 percent, I certainly see what it can be.”

Though a bit confusing in its data reporting, this article still is so very telling as to how the "prerogatives of prosecutors" ultimately determine whether and how mandatory sentencing provisions are applied and how the policies and practices of different local prosecutors can have more profound impact on sentencing outcomes in the shadow of mandatory sentencing laws than any other factor. And the final comment by the mayor’s criminal justice coordinator here is especially telling when he says he "can’t answer what should" be the imprisonment rate for offenders who break a law which is supposed to indicate a legislative and executive commitment to the principle that 100% of persons who commit a certain crime should get prison time.

Though sophisticated criminal justice participants already know this story well, this article provide still more evidence about the real import and impact of so-called mandatory sentencing laws: they dramatically impact the power of prosecutors to control sentencing outcomes and thus increase prosecutors' leverage to shape all prior stages of the criminal justice system. In turn, unless and until the discretionary decisions of prosecutors are subject to greater regulation, scrutiny, accountability and review, mandatory sentencing laws are likely to enhance (and hide from view) sentencing disparites.

January 22, 2013 in Gun policy and sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (12) | TrackBack

Monday, January 21, 2013

Will Prez Obama's clemency record ever match his inaugural rhetoric?

Blogging four years ago during the last day in which a US President took the oath of office, I commented in this post about the tendency of chief executives to invoke great rhetoric and wax poetic about freedom and liberty in America despite our country's recent record of locking up a record number of persons in jails and prisons.  I also asked in this follow-up post on the same day whether it was too early to start demanding President Obama use his clemency power to live up to our country's traditional commitment to personal freedom and liberty. 

Sadly, as P.S. Ruckman effectively documents and highlights in this new post, President Obama's first-term record on the clemency front is at once disgraceful and disgusting:

Barack Obama's first term has come to an end and we are now ready to report that his four-years as president represent the least merciful term for any modern president (Democrat or Republican) and, quite possibly, the least merciful in the entire history of the United States (see footnote below).

This is, of course, an incredible distinction for a president who repeatedly notes that America is a place where people get "second chances," from a president who complained bitterly about overly-harsh sentences given to criminal defendants simply because they were African-American, and from a president who promised us "hope and change."

Not surprisingly, this ugly clemency record did not prevent President Obama from kicking off his secord term with more empty inaugural rhetoric about freedom and liberty, and I found these particular phrases from Obama's speech today especially notable:

We do not believe that in this country, freedom is reserved for the lucky, or happiness for the few....

[O]ur interests and our conscience compel us to act on behalf of those who long for freedom.   And we must be a source of hope to the poor, the sick, the marginalized, the victims of prejudice — not out of mere charity, but because peace in our time requires the constant advance of those principles that our common creed describes: tolerance and opportunity; human dignity and justice.

We, the people, declare today that the most evident of truths — that all of us are created equal — is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great Mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth.

As all students of mass incarceration know too well, a large number of persons locked in the cages of our nation's jails and prisons are "the poor, the sick, the marginalized, the victims of prejudice"; and the fact that they have committed crimes does not mean they do not "long for freedom," nor does it mean our nation and its peoples should no longer be compelled by our conscience to be a "source of hope" to them.  Indeed, as MLK said decades ago and as Prez Obama reminds us today, each and everyone one of us has "our individual freedom .. inextricably bound to the freedom of every soul on Earth" including those souls who have violated our criminal laws and now have their liberty curtailed.

Given his track record to date, I do not expect much change from President Obama on this important (but not politically popular) front.   But I will continue to have hope, not so much because I have much faith in this President's merciful heart, but because I do have great faith in this nation's merciful soul.

January 21, 2013 in Clemency and Pardons, Who Sentences? | Permalink | Comments (15) | TrackBack

Big business joins sentencing reform bandwagon in Texas

A telling and important sign of modern sentencing reform times can be found in this recent article from the Austin American Statesman, which is headlined "Big-business lobby enters fray on criminal justice reforms."   Here is how the article gets started:

In a significant shift in lobbying clout, Texas’ most powerful business group has decided to make criminal-justice reforms a key focus of its priorities for legislative action, seeking ways to spend taxpayer money more efficiently and to improve the state’s economic future.

Bill Hammond, president of the Texas Association of Business, said the group plans to push to expand successful rehabilitation and community-based corrections programs; to change Texas’ drug-sentencing laws to put more low-level offenders in local treatment programs and reduce penalties for small amounts of drugs; and to modify state licensing laws that keep some ex-convicts from ever becoming certified for various trades.

“We’re sending too many people to the slammer,” Hammond said. “The taxpayers and the business community are both being harmed.”

On Wednesday, the business group will meet to plan its strategy to persuade the Legislature to enact changes that Hammond said are designed to keep more low-level, nonviolent lawbreakers on probation and in treatment and rehabilitation programs in their communities, “rather than sending them all to Huntsville.”

The entry of an influential lobby group such as TAB — which represents many of the state’s largest employers — promises to change the likelihood that significant reforms could pass into law. It could also portend a showdown with some victims’ rights groups who lobbied for passage of many of the tough-on-criminals measures of the past 20 years.

Even so, the move is part of a national trend just beginning to emerge that has seen business executives weighing in on justice reforms — another sign that the tough-on-crime era, which saw a wave of “three-strikes” laws that put felons away for life and prison funding that was focused mostly on punishment, has ended.

Business leaders from Florida to Kentucky to Oregon have endorsed corrections reforms on limited issues within the past year.  But TAB’s new role could be the biggest entry by a business group into systemic justice reform.

I have long viewed incarceration as a costly and not-always-cost-effective public safety expenditure; it is nice to see an important big business lobbying group in what is thought to be America's toughest state to be in agreement and committed to sentencing reform efforts.

January 21, 2013 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack