Friday, May 10, 2013

"Marijuana taxes as a cash cow? Think again"

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

Taxing pot could raise hundreds of millions of dollars but still not be the moneymaker states were hoping for. Colorado and Washington State are launching their legal recreational marijuana industries, and both are coming to terms with scaled back expectations.

Washington had projected up to $450 million in annual tax revenue, but the state's new pot consultant figures it could be little more than half that.  In Colorado, the Colorado Futures Center think tank forecasts $130 million in taxes but thinks that won't even cover the cost of regulating the new industry.

Still, these forecasts are rough guesses.  They're based on estimates of drug usage and marijuana prices, both of which are difficult to measure because most of the cannabis industry is underground.

Another problem will be tax collection, especially because it's an all-cash industry. Banks and credit card companies won't service pot businesses while cannabis is still deemed illegal at the federal level.  To address that problem, Washington regulators hope to monitor every gram that's grown, moved and sold.

"We're going to look at some sort of traceability system that's going to track the plant from the plant to the sale," said Pat Kohler, a director at the state's Liquor Control Board. "This is definitely a challenge, a long with many other challenges."

At least one private company, MJ Freeway in Colorado, already does so-called "seed-to-sale" tracking.  Still, CEO Amy Poinsett warns that the all-cash nature of the industry encourages wrongdoing, like laundering money.  "There's quite a temptation to just slip $500 into your pocket," Poinsett said, noting it's a shame because "this is one of the only industries where people are saying, 'Please regulate me. Please tax me.'"

In Colorado, anti-pot politicians are threatening to roll back legalization if voters don't approve higher taxes. There's a proposal to send the question to voters later this fall.

Taxes are already high in Washington.  The law approved by its voters last year includes a 25% sales tax at three different stages: when it's sold from grower to processor, processor to retailer, and retailer to customer.  That will add a few dollars to every store purchase, pushing the price of a gram from its current average of $10 closer to $15.

With tax rates fixed in Washington, raising more revenue would have to come from selling more weed.  To accomplish that, regulators could potentially hand out more licenses and lessen restrictions on growers and sellers.  But that conflicts with one of the state's primary concerns: carefully controlling the price of marijuana.

May 10, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2) | TrackBack

Notable new Oregon bill to allow some young sex offenders to get off registry

In this recent post about the Second Amendment rights of registered sex offenders prompted a lengthy comment thread about who does and does not end up on sex offender registries.  With that discussion fresh in mind, I found this AP story about a bill making its way through the Oregon legislature interesting:

Some young offenders convicted of having sex with underage partners would be able to request the crime be removed from their records under a bill narrowly passed by the Oregon House on Wednesday. Voting 31 to 27, the House sent the bill to the Senate with little discussion.

Under the bill, in order for adult offenders to apply to have their records erased, coercion or force could not have been used in the sex act. Other conditions include completion of all required court-ordered programs and treatments.

Proponents say the current punishment for such sex offenders does not fit the crime. Opponents say people convicted of sex crimes often reoffend and should not be able to have their records expunged. "Individuals who commit sex offenses ... this isn't their first time and it won't be their last," said Crook County District Attorney Daina Vitolins, who opposes the bill on behalf of the Oregon District Attorneys Association. To say an act is consensual when it involves a person who is too young to give consent is indefensible and minimizes the law, Vitolins said.

For offenders to have their records cleared under the proposed law, they could be no more than five years older than the victim, and the victim must be at least 14. For sex crimes committed by a minor, the victim must be at least 12 and the age difference can be no more than three years.

House Speaker Tina Kotek, a sponsor, brought the legislation forward after hearing from a constituent who was 14 when his friend's parents reported him to the authorities for engaging in inappropriate behavior — which did not involve intercourse — with their young daughter.  "This is the difference between a life of hopelessness and a future for this individual," the Portland Democrat told lawmakers last month.

Among those testifying for the bill was Matthew Shettles, who served three years' probation on a charge of sex abuse for having sex with his girlfriend in 2004 on the night of his high school graduation. In written testimony, Shettles said he had just turned 18 at the time and she was five weeks shy of 15.  A counselor learned of the encounter and was required by a mandatory reporting law to inform authorities, he said.

He said having a sex crime on his record has made it difficult to get hired and rent an apartment. Employers and housing agencies often run criminal background checks.  "It doesn't seem reasonable that a guy who had sex with his girlfriend should have to pay for the rest of his life," Shettles said in the written testimony.

Under the bill, only sex crimes that meet a specific set of requirements could be erased from an offender's record.  Among other things, the person must have successfully applied to be removed from the state's sex offender registry and cannot have been convicted of other serious crimes.

May 10, 2013 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Thursday, May 09, 2013

"Looking Past the Hype: 10 Questions Everyone Should Ask About California's Prison Realignment"

The title of this post is the title of this new paper on SSRN by Joan Petersilia and Jessica Snyder. Here is the abstract:

California’s Criminal Justice Realignment Act passed in 2011 shifted vast discretion for managing lower-level offenders from the state to the county, allocated over $2 billion in the first 2 years for local programs, and altered sentences for more than 100,000 offenders. Despite the fact that it is the biggest penal experiment in modern history, the state provided no funding to evaluate its overall effect on crime, incarceration, justice agencies, or recidivism.

We provide a framework for a comprehensive evaluation by raising 10 essential questions: (1) Have prison populations been reduced and care sufficiently improved to bring prison medical care up to a Constitutional standard? (2) What is the impact on victim rights and safety? (3) Will more offenders participate in treatment programs, and will recidivism be reduced? (4) Will there be equitable sentencing and treatment across counties? (5) What is the impact on jail crowding, conditions, and litigation? (6) What is the impact on police, prosecution, defense, and judges? (7) What is the impact on probation and parole? (8) What is the impact on crime rates and community life? (9) How much will realignment cost? Who pays? (10) Have we increased the number of people under criminal justice supervision?

May 9, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Cleveland police report supports Aggavated Murder capital charges against Ariel Castro

I asked in this post yesterday whether Ariel Castro, the monster who abducted and sexually tortured three young women in Cleveland, could and should possibly face the death penalty under Ohio law.  Based on the newly released police report, discussed in this CBS News piece, I am now convinced that Castro can reasonably be charged with with Aggravated Murder pursuant to Ohio Revised Code 2903.01. Here are the key facts supporting this conclusion:

New details on the women's harrowing ordeal were confirmed in a police report obtained Wednesday by CBS News.... [Michelle] Knight told police, according to the report, that Castro impregnated her "at least 5 times," but that each time he would starve her and then punch her in the stomach to induce a miscarriage.

Here are the key provisions of ORC 2903.01, with the terms in bold and some italics that highlight the basis on which Ohio prosecutors could charge Aggravated Murder against Castro:

2903.01 Aggravated murder.

(A) No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another's pregnancy.

(B) No person shall purposely cause the death of another or the unlawful termination of another's pregnancy while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit, kidnapping, rape, aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary, trespass in a habitation when a person is present or likely to be present, terrorism, or escape.

Critically, I do not mean here to assert that state prosecutors must now seek the death penalty in their prosecution of Castro.  I can envision lots of sound reasons for local prosecutors to decide not to seek the punishment of death here -- especially if Castro's three primary victims indicate a strong disinclination to go through the difficulties (and media sensation) of a full-blown capital trial and the inevitable appeals that would likely follow if a jury imposed a death sentence.

But I do mean to assert that state prosecutors should now be considering how they will present to an Ohio grand jury the evidence which could support a charge of Aggravated Murder based on Casto's alleged repeated purposeful efforts to unlawfully terminate Michelle Knight's pregnancies. 

Because Ohio legislators amended the state's Aggravated Murder provisions to expressly include "purposely caus[ing]... the unlawful termination of another's pregnancy," Ohio law now expressly reflects a state policy decision that a defendant who intentionally and unlawfully terminated a pregnancy could face an Aggravated Murder charge.  Based on the facts appearing in the recently released police report, Ariel Castro is the poster child for the kind of "unlawful pregnancy terminator" who, in my view, should be facing charges of Aggravated Murder under Ohio law.

Recent related post:

May 9, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (44) | TrackBack

Illinois moves closer to becoming 20th state to legalize medical marijuana

As reported in this article, headlined "Medical marijuana bill clears Illinois Senate committee," a very big and significant state has now moved one step closer to joining the ranks of state's legalizing marijuana for some purposes. Here are the basics:

A key panel of Senate lawmakers advanced legislation Wednesday that would allow patients with certain illnesses to use marijuana to ease their symptoms. The measure was approved on a 10-5 vote by the Senate Executive Committee despite concerns raised by law enforcement officials that the bill would not prevent medical marijuana card holders from driving while under the influence.

The proposal has already passed the House. Gov. Pat Quinn has said he is "open minded" to the legislation but must give the matter further review.

Under the bill, a four year pilot program would be established to allow doctors to prescribe patients no more than 2.5 ounces of marijuana over two weeks. Patients would have to buy from one of 60 dispensing centers across the state and could not grow their own.

Sponsoring Sen. Bill Haine, D-Alton, said the rules were the toughest in the nation. A former State's Attorney, Haine promised the bill is "not an opening to legalization" of recreational pot use. Opponents said they acknowledged the relief marijuana could provide but questioned unintended consequences.

May 9, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, May 08, 2013

Feds and Jeff Skilling cut resentencing deal to fix new guideline range at 168 to 210 months

As had been previewed a public notice to victims from the Justice Department last month (noted here), federal prosecutors and former Enron CEO Jeff Skilling have reached a deal concerning unresolved matters before Skilling's resentencing. This Reuters article details the basics of this notable high-profile sentencing development:

Jeffrey Skilling, the former Enron Corp chief executive, could be freed from prison nearly a decade sooner than originally expected, under an agreement with federal prosecutors to end the last major legal battle over one of the biggest corporate frauds in U.S. history.

The agreement calls for Skilling to see his federal prison sentence reduced to as little as 14 years, down from the 24 years imposed in 2006. It could result in Skilling's freedom in late 2018, with good behavior.

In exchange, Skilling, 59, who has long maintained his innocence, agreed to stop appealing his conviction. The agreement would also allow more than $40 million seized from him to be freed up for distribution to Enron fraud victims.

A resentencing became necessary after a federal appeals court upheld Skilling's conviction but found the original sentence too harsh....  Wednesday's agreement, which is subject to court approval, recommends that Skilling be resentenced to between 14 and 17-1/2 years in prison, including time already spent there. Skilling has been in prison since December 2006.

A helpful readers forwarded to me the 7-page sentencing agreement, which can be downloaded below.  Here are the essential pieces of the deal:

The Government and the defendant agree that, based on the previous decisions of the Fifth Circuit with respect to proper calculation of the United States Sentencing Guidelines range and this Court's prior sentencing rulings on October 23, 2006, the United States Sentencing Guidelines provide that the defendant should be resentenced using an adjusted offense level of 36 and a criminal history category of I, resulting in an advisory guidelines range of 188 to 235 months of imprisonment.

For the reasons set forth below as "Relevant Considerations," the Government and the defendant agree to recommend jointly that the District Court apply a one-level downward variance and resentence the defendant using an adjusted offense level of 35, pursuant to the United States Sentencing Guidelines.  Given that the defendant is located in criminal history category I for resentencing purposes, the jointly recommended adjusted offense level will result in a jointly recommended guidelines range of 168 to 210 months of imprisonment.

Neither the Government nor the defendant will seek any variance or departure from the jointly recommended guidelines range.  The Government may allocute at sentencing, but the Government will not take a position regarding the particular sentence the District Court should impose within the jointly recommended guidelines range.

The defendant agrees to waive all potential challenges to his convictions and sentence, including a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, appeals, and collateral attacks, except as set forth [below]....

Neither the Government nor the defendant will appeal a sentence imposed within the jointly recommended guidelines range.  However, the Government and the defendant each reserve the right to appeal a sentence imposed outside this range.

Download Skilling Sentencing Agreement final.cfv

May 8, 2013 in Enron sentencing, 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 (4) | TrackBack

"Federal Public Defense in an Age of Inquisition"

The title of this post is the title of this notable new article by federal public defender David Patton, which is now available via SSRN.  Here is the abstract:

This Essay asks whether federal criminal defendants receive fairer process today than they did in 1963, when Gideon v. Wainwright was decided.  It concludes that in many situations they do not; indeed, they often receive far worse.  Although Gideon and the Criminal Justice Act of 1964 undoubtedly improved the quality and availability of counsel in the federal courts, extraordinary damage has been done since then to the aspect of the criminal justice system that makes lawyers so valuable: the adversary process.

Sentencing severity, the control of that severity by prosecutors rather than judges or juries, and high rates of pretrial detention have greatly limited defendants’ ability to challenge the government’s version of the facts and the law.  This Essay briefly describes federal criminal practice as it existed in 1963 and illustrates the shifts that have occurred by discussing current practice in the federal public defender office in New York City.

May 8, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Senate hearings scheduled this afternnon for two of Prez Obama's USSC nominees

As detailed on this official Senate Judiciary Committee webpage, today at 2:30pm there is a scheduled a hearing on "Nominations" which includes the nomination of "William H. Pryor, Jr., to be a Member of the United States Sentencing Commission" and "Rachel Elise Barkow, to be a Member of the United States Sentencing Commission."

Regular readers may recall from this prior post that I am very excited about all three of the new nominees to fill open spots on the USSC. I am thus thrilled to see two of these nominees get a hearing only a few weeks after their nomination, but also a bit puzzled about why US District Judge Charles Breyer is not also having a hearing. (As a matter of pure speculation, I am inclined to guess that Judge Breyer's nomination is more controversial perhaps because of his brother's status as a sitting Supreme Court Justice.)

Because I will be on the road all afternoon, I will not be able to follow closely this scheduled hearing, but others can watch it live via this link.  I am eager to hear reports on whether the questioning of these two nominees are tough or sweet, as well as whether their views on the import and importance of federalism concerns come up.  (I would also love to see Senators Leahy and Paul ask the nominees whether they share my perspective on the proposed Justice Safetly Valve Act of 2013.)

Some recent and older related posts:

May 8, 2013 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, May 07, 2013

Wall Street Journal pitch for the Prez to get behind the Justice Safety Valve Act of 2013

Thanks to the suggestions, and insights and energy of Harlan Protass, a criminal-defense lawyer in New York and an adjunct professor at the Cardozo School of Law, some of the ideas first expressed in this recent post concerning the proposed Justice Safetly Valve Act of 2013 now find expression in this Wall Street Journal opinion piece we co-authored.  Here is are snippets from the the piece:

There are few topics on which leading Democratic and Republican voices agree these days. But the recently introduced Justice Safety Valve Act of 2013 — which would authorize federal judges to impose prison terms below statutory mandatory minimums in some cases — represents a new bipartisan effort at addressing America's overcrowded prisons and bloated budget.  Passage of the act, though, will depend on President Obama and his Justice Department getting behind it....

The Justice Safety Valve Act, recently introduced by Sens. Patrick Leahy (D., Vt.) and Rand Paul (R., Ky.), and to the House by Reps. Robert C. "Bobby" Scott (D., Va.) and Thomas Massie (R., Ky.), could help reduce the millions of taxpayer dollars wasted keeping thousands of people sentenced under mandatory minimum laws locked up.  The bill would enable federal judges to consider when or whether a mandatory-minimum sentence serves legitimate law-enforcement purposes given the particular circumstances of the crime and defendant.  Judges could impose prison terms below the statutory minimums only when they explain, through an on-the-record, reviewable opinion, that a shorter term is sufficient to serve the express goals of the criminal justice system set out by Congress....

[B]ipartisan support and sponsorship of the Justice Safety Valve Act highlights that prominent lawmakers on both sides of the aisle agree — at this time of lean budgets, sequester cuts and overcrowded prison facilities — that the current federal sentencing scheme is neither fair nor effective, and that mandatory-minimum sentencing laws lie at the heart of the problem.

President Obama's vocal support of this bill would signal a real commitment to using his bully pulpit to advocate on behalf of significant reform proposals.  If he does not, the president's failure to champion sentencing reform may become his most lasting federal criminal-justice legacy.

Some recent and older related posts:

May 7, 2013 in Criminal justice in the Obama Administration, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Wait, Wait ... Don't forget to set your DVR for Constitution USA with Peter Segal

H-PETER-SAGAL-348x516As explained on this PBS webpage, a great new four-part series about the US Constitution is premeiring tonight on many local PBS stations.  Here are the basics via a couple links on the official PBS website:

Does the Constitution have what it takes to keep up with modern America?  Join Peter Sagal, host of NPR’s Wait Wait… Don’t Tell Me! as he hits the road to find out. Traveling across the country by motorcycle, Sagal is in search of where the U.S. Constitution lives, how it works and how it doesn’t… how it unites us as a nation and how it has nearly torn us apart.

CONSTITUTION USA,... is hosted by Peter Sagal.... Over the course of the four-hour series, Sagal hits the road, travelling cross country on a customized red, white and blue Harley-Davidson, to find out where the Constitution lives, how it works, and how it unites us as a nation. From New York to San Francisco, from Missoula, Montana to Tyler, Texas, Sagal visits dozens of cities and small towns across America introducing viewers to some of today’s major constitutional debates — free speech in the digital age, same-sex marriage, voting rights, separation of church and state, presidential power in the post-9/11 world, to name just a few — and the fascinating stories of the people they affect every day.

And for each contemporary story, Sagal dives into the history behind it and talks to prominent legal scholars, historians and public figures, finding out what the Constitution says, the dramatic historical events and crises that defined the Constitution, and why all this matters.  Each one-hour episode of CONSTITUTION USA vividly illuminates a central theme essential to the Constitution.

A More Perfect Union:  Peter explores the Constitution’s most striking and innovative feature: its resilient brand of federalism.  The framers created a strong national government while at the same time preserving much of the power and independence of the states.  This delicate balance of power, seemingly hard-wired for disagreement and conflict, has served America well for more than two centuries.  But it has also led to tensions throughout American history and still sparks controversy today over medical marijuana, gun control, and Obamacare.

It’s a Free Country:  Ask Americans what the Constitution’s most important feature is, and most will say it’s the guarantees of liberty enshrined in the Bill of Rights.  In this episode, Peter explores the history of the Bill of Rights, and also takes on several stories ripped from the headlines, involving freedom of speech, freedom of religion, and right to privacy.

Created Equal: The high ideals of the Declaration of Independence that “all men are created equal,” endowed with “unalienable rights,” didn’t make it into the Constitution in 1787.  It took three-quarters of a century, and a bloody civil war, before the Fourteenth Amendment of 1868 made equality a constitutional right, and gave the federal government the power to enforce it.  The far-reaching changes created by that amendment established new notions of citizenship, equal protection, due process, and personal liberty and today those notions are being used to fight for same sex marriage, voting rights, affirmative action, and immigration reform.

Built to Last?: In this last episode, Peter travels to Iceland where a few years after the country’s economic collapse, leaders decided to create a new constitution, turning to the U.S. Constitution for inspiration.  This prompts Peter to consider why our own founding document has been able to last for more than 225 years.  He looks at the systems that have kept the Constitution healthy — amendments, judicial interpretation, checks and balances — and also at the political forces that threaten to undermine the framers’ vision: excessive partisanship leading to gridlock, money in politics, and gerrymandering.

May 7, 2013 in Television, Who Sentences? | Permalink | Comments (14) | TrackBack

Are sexy and jobless now the best adjectives to describe federal criminal justice in SD Ohio?

The somewhat bizarre and silly question in the title of this post was my reaction to this somewhat bizarre and not-so-silly article in my own Columbus Dispatch this morning concerning the US Attorney and (former) Chief Federal Public Defender in the Southern District of Ohio. Here are the details:

It turns out that at least one Columbus lawyer ranks pretty high in sexiness. According to a popular business- and technology-news website, the No. 2 sexiest lawyer in America is the city’s own Carter Stewart, the U.S. attorney for the Southern District of Ohio.

“He doesn’t know how he got on the list,” said Fred Alverson, a spokesman for Carter’s office in Columbus. “By that, I mean we don’t know how he got noticed, but we’re honored he’s at the top of the list.” Stewart, 44, is a Harvard Law School graduate and has been in his current job since 2009.

First on the Business Insider list, not surprisingly, is California Attorney General Kamala Harris. President Barack Obama called her “by far the best-looking attorney general in the country” at a fundraising event in early April.

Though his animal magnetism was never brought up, Stewart’s opposite number, Steve Nolder, made an appearance on Comedy Central’s The Daily Show last week. Daily Show reporter and comic Aasif Mandvi traveled the country to learn how the federal sequestration is affecting people, and he came to Columbus to interview Nolder, the federal public defender for the Southern District of Ohio.

A straight-faced Nolder told Mandvi he hadn’t had to fire any employees in his office because of the automatic federal spending cuts. Instead, he fired himself. “That’s stupid,” Mandvi blurted out. After that, Mandvi took Nolder to “the only place he can now afford to eat” — a Columbus soup kitchen.

Nolder’s decision to ax his own position is no joke.  He has been with the public defender’s office in Columbus since it opened in 1995 and has been moved to tears several times when talking about his decision to leave the job he loves.

 

The Daily Show with Jon Stewart
Get More: Daily Show Full Episodes,Indecision Political Humor,The Daily Show on Facebook

I have embedded the Daily Show segment in which Steve Nolder appears at the very end of the end. Though I am not exactly an expert on sexy (and though I am surely biased toward folks who are follicly-challenged like me), I think Nolder might be able to give Carter Stewart a run for his money on that adjective. Jokes aside, though, I wish there was a well-staffed US criminal justice research commission (hint: USSC) or federal department focused on the administration of justice (hint: DOJ) who would be regularly reporting to the press and others on the seemingly very serious impact that the sequester seems already to be having on the day-to-day operation of the federal criminal justice system.

Recent related posts on federal sequester:

May 7, 2013 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

"Florida tries to speed up executions as Maryland, other states repeal death penalty"

The title of this post is the headline of this recent FoxNews story, which actually does provide a relatively fair and balanced perspective on some recent capital punishment legislative developments:

While other states move to abolish capital punishment, Florida lawmakers are taking an entirely different approach -- trying to speed up executions for death row inmates.

The Republican-controlled legislature has sent a bill to Gov. Rick Scott that, if signed, would require the governor to sign execution warrants 30 days after the state Supreme Court reviews cases. It would require the state to execute a prisoner within 180 days of a warrant being signed. The legislation also sets new deadlines for death row appeals.

The bill arrives on Scott’s desk just days after Maryland became the sixth state in as many years -- and the 18th state overall -- to abolish the death penalty. Democratic Maryland Gov. Martin O’Malley signed the bill Thursday, ending what supporters said was decades of racial and socio-economic disparity in death penalty sentencing.

Supporters of the Florida legislation claimed their bill was aimed at improving -- rather than abolishing -- a broken system. They argue it puts an end to condemned prisoners sitting for years on death row -- often through what they consider unnecessary delays in the so-called “post conviction” process.

Republican state Sen. Joe Negron, the bill's sponsor, on Monday called that situation a “mockery” of the criminal justice system. “We believe in due process,” Negron told FoxNews.com. “But this is about cases in which there is no allegation of innocence and a succession of motion after motion.”

He and fellow state Sen. Rob Bradley also argue the bill ends the long waits that surviving families and others must endure between a murder and the justice they seek. “This bill is about closure,” Bradley told The Florida Courier.

The average stay on Florida’s death row before being executed is roughly 13 years, according to state records.

Critics of the legislation, however, question why legislators would want to, in effect, accelerate the appeals process, considering 24 people on death row have been exonerated since Florida resumed executions in the 1970s, which is more exonerations than in any other state. “It is both tragic and ironic that the state that sends the highest number of wrongfully convicted people to death row is considering speeding up executions,” said Mark Elliott, of the group Innocent on Death Row. “Speeding up executions virtually guarantees that innocent people will be executed.”

The legislation attempts to fix the problem of the accused getting shoddy legal services by suspending lawyers for five years from handling death appeals if they are found twice to have provided deficient representation.

May 7, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Corrupt state supreme court judge and sister facing state sentencing in PA

As reported in this local article, headlined "Former Pennsylvania Justice Orie Melvin, sister face sentencing today," a high-profile corruption case in the Keystone State has finally reached the sentencing stage. Here are the basics:

Former Pennsylvania Supreme Court Justice Joan Orie Melvin and her sister and former court aide Janine Orie will be sentenced today by Allegheny County Common Pleas Judge Lester Nauhaus.

Prosecutors, in briefs filed before the court last month, are seeking incarceration for Ms. Orie Melvin and for her sister, who were convicted in February of misusing state-paid employees in Ms. Orie Melvin's campaign for a seat on the high court in 2003 and 2009. The sisters were found guilty of theft of services, conspiracy and misapplication of government funds. Janine Orie was also convicted of tampering with evidence and solicitation.

In their briefs, Ms. Orie Melvin's defense attorneys asked for probation, citing her dedication to public service, charitable work and her devotion to her family and the hardship incarceration would bring upon her family, including her six children and elderly father.

The sisters were charged with misapplication of government funds, theft of services and conspiracy for using the justice's former Superior Court staff and the legislative staff of a third sister, former state Sen. Jane Orie, to run campaigns for the Supreme Court in 2003 and 2009. Among the allegations were that staffers wrote speeches, drove Ms. Orie Melvin to campaign events and worked the polls....

At the time of the verdict, Matt Mabon, the jury foreman, explained that the jury couldn't reach a decision on the official oppression count, which was connected to the employment of Lisa Sasinoski, chief law clerk for the justice who was a witness. Because there were competing versions of whether she was fired or resigned, jurors couldn't reach a decision, he said.

Ms. Orie Melvin voluntarily stopped hearing cases before the high court when she was indicted a year ago, just hours before the court issued an order suspending her to "preserve the integrity" of the system. That same day, the Pennsylvania Judicial Conduct Board issued a recommendation that she be suspended with pay pending resolution of the criminal case, but in August, the Court of Judicial Discipline ruled that Justice Orie Melvin should not be paid during her suspension. Her salary at the time was $195,309.

Justice Orie Melvin fought unsuccessfully to have the charges against her dismissed, claiming that the Supreme Court itself should have jurisdiction over the allegations and not the criminal courts. A month after the verdict, on March 25, Ms. Orie Melvin announced, in a letter to Gov. Tom Corbett, that she would resign May 1 "with deep regret and a broken heart."...

Jane Orie is serving a 21/2- to 10-year prison term for using her staff for her own and Ms. Orie Melvin's campaigns and for forging documents to cover it up. She was found guilty in March 2012 of 14 of 24 counts against her, including ethics violations, theft of services, tampering with evidence and forgery.

Assistant district attorney Lawrence Claus is seeking consecutive sentences of incarceration in the aggravated range for Ms. Orie Melvin. The standard range is probation to 30 months, versus 48 months in the aggravated range. For Janine Orie, the standard range is probation to 27 months and up to 45 months in the aggravated range.

Related post:

UPDATE:  I am very pleased to see from this local article, headlined "Orie Melvin must write apology letters to Pennsylvania judges on photos of herself," that the sentence for the former judge includes a serious shaming sanction.  Here are the awesome basics, about which I will blog more in a future post:

Disgraced former Pennsylvania Supreme Court justice Joan Orie Melvin was sentenced today to house arrest followed by probation and ordered to send handwritten apologies on photographs of herself to every judge in the Commonwealth.

Allegheny County Court of Common Pleas Judge Lester Nauhaus sentenced Orie Melvin to three years' house arrest with two years' probation to follow.

A jury found Orie Melvin and her sister Janine Orie guilty on Feb. 21 of using judicial staff, as well as the staffers of another sister, former state Sen. Jane Orie, to work on the campaigns in 2003 and 2009 for the Pennsylvania high court.

Orie Melvin, 56, was found guilty on six of seven counts against her, including conspiracy, theft of services and misapplication of government funds. She resigned from the Supreme Court in March.

She must serve in a soup kitchen three times a week and can otherwise only leave her house for church.

Judge Nauhaus also ordered that an official county photographer take a photograph of Orie Melvin, on copies of which she must apologize to each of Pennsylvania's judges. She must pay for the cost. He ordered a deputy to handcuff her and the photo was taken of her in handcuffs.

Her sentence also includes $55,000 in fines, a prohibition on using the title "justice" during her term and handwriting apologies to former members of her campaign staff and that of her sister, former state Sen. Jane Orie, whom she made engage in illegal work.

May 7, 2013 in Celebrity sentencings, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, May 06, 2013

Don't registered sex offenders need gun rights for personal self-defense more than others?

The question in the title of this post is my initial reaction to this big newpaper story from Iowa, headlined "50 sex offenders have gun permits: Law enforcement is concerned that state law allows offenders to easily obtain permits."  Here are excerpts from the lengthy Des Moines Register story,  which is less than fully informative about legal matters, but provides a lot of interesting facts nonetheless:

Joshua Duehr is one of more than 50 sex offenders in Iowa who can carry a gun in public. “I don’t leave the house without one,” said Duehr, who lives in Dubuque.

It’s legal — and it’s news that has surprised some state lawmakers and alarmed a few Iowa and national law enforcement officers.  An FBI official, the president of the Iowa State Sheriffs’ & Deputies’ Association, the president of the Iowa State Police Association and two state lawmakers told The Des Moines Register they have public safety concerns after learning that a two-year-old state law on gun permits allows registered sex offenders to obtain a weapons permit....

Some, if not most, applications by sex offenders for permits to carry weapons would have been denied by county sheriffs before 2011, according to officials from the Iowa Department of Public Safety.  But under a two-year-old state law, sheriffs no longer have discretion to reject such applications.

The law change means people convicted of misdemeanor sex crimes can now walk the streets, malls or virtually any public place in the state while carrying a gun.  Almost all of the sex offenders on the Register’s list were convicted of misdemeanors such as lascivious conduct with a minor or assault with intent to commit sexual abuse.

But the Register found three men convicted of felony sex crimes who had permits to carry weapons in public.  Two of those men had their permits revoked by sheriffs after the Register asked about their situations....

Some sheriffs were aware that sex offenders are carrying weapons in public, primarily because they issue the permits and have firsthand knowledge about the issue.  But other professionals in Iowa’s law enforcement community were caught off guard.

Rob Burdess, a Newton police detective and the president of the Iowa State Police Association, was unaware that sex offenders are being issued weapon permits until he was asked about it by the Register.  He noted that people with felonies or domestic abuse convictions are typically unable to obtain weapon permits, so he questions the logic of allowing sex offenders — even those convicted of non-felony offenses — to carry weapons in public....

[A] review of states surrounding Iowa found that some sex offenders can obtain permits to carry weapons even though authorities said they aren’t aware of a large number being issued.  Those states — including Nebraska, Missouri and Wisconsin — have laws similar to Iowa’s that do not specifically exclude sex offenders from obtaining such permits. Minnesota law, however, makes it a misdemeanor for a person required to register as a sex offender to carry a handgun.

Just as state laws vary, so do opinions about whether armed sex offenders inherently pose more of a risk than other citizens.  Sex offense recidivism rates are much lower than commonly believed, according to legislative testimony given in multiple states by Jill Levenson, an associate professor at Lynn University in Florida.  She is frequently recognized as a national expert on sexual violence....

National uniform crime data from 2006 — the most recent data available — show that about half of all reported sex offenses included a weapon of some form (including the use of fists) but less than 1 percent of all reported sex offenses included the use of a firearm, according to Jason Rydberg, a graduate student at Michigan State.  Iowa numbers mirror the national trend.  Of the roughly 5,750 people on Iowa’s sex offender registry, 47 — or less than 1 percent — used guns in their crimes, according to data from the Iowa Department of Public Safety....

The Association for the Treatment of Sexual Abusers, a national organization focused on the prevention of sexual abuse, generally advocates for cases to be reviewed individually when assessing if a sex offender is likely to reoffend or jeopardize public safety.  “There’s no blanket way of stating that sex offenders are more dangerous than everybody else,” said Maia Christopher, executive director of the association.

Iowa Rep. Clel Baudler, R-Greenfield and a former state trooper, isn’t reassured by the type of research offered by Levenson or groups like the Association for the Treatment of Sexual Abusers.  Until he was contacted for this article, Baudler was unaware that the new gun permit law he advocated for in 2010 has allowed dozens of sex offenders to obtain weapon permits....

An Iowa sheriff may deny a permit to carry a weapon if he believes probable cause exists that the person is likely to use a weapon in a way that would endanger themselves or others.  Those types of denials typically must be based on documented actions from the past two years.  Iowans who believe sheriffs have wrongly rejected their applications for a weapon permit may appeal.  Each appeal, generally reviewed by an administrative law judge, can cost a county government and taxpayers hundreds of dollars....

The cost and the real possibility of losing a case is one reason sheriffs don’t deny permits to carry weapons — even in cases where they have reservations — several sheriffs told the Register.

Washington County in January issued a permit to acquire a weapon to Ronald Nicholis Hahn Jr., who has been on the sex offender registry since 2005 because he was convicted of indecent exposure.  Dunbar said he approved the permit because Hahn passed background checks.  Hahn, 51, said he poses no threat to public safety and that he uses guns for hunting.  “My offense happened seven or eight years ago and it has nothing to do with weapons, so why should I be denied the ability to purchase a gun?” Hahn asked.

Rep. Matt Windschitl, R-Missouri Valley, indicated that he believes Iowa’s new weapons permit law doesn’t need to be revised to specifically ban sex offenders.  People convicted of felonies, including sex offenders, are already prohibited from obtaining a permit, he emphasized. “If their local sheriff does not have probable cause to restrict that person under current law from being able to obtain a permit, then that’s the situation at hand,” said Windschitl, a gunsmith who has advocated for multiple pro-gun bills.

Aggravatingly, this story fails to note that it is a serious federal crime, subject to up to 10 years imprisonment, for any and all persons convicted of a felony or a domestic violence misdemeanor from even possessing a gun. Thus, as the story indirectly notes, only persons without a felony or domestic violence conviction is even lawfully able to possess a gun, let alone get a lawful state permit for one. (I find notable that somehow three sex offender felons were able to get an Iowa gun permit, which perhaps highlights the need for background checks on how good current background checks are in the permit-issuance process in Iowa.)

More to the point of the question in the title of this post, if we think the Second Amendment right to bear arms is linked in some important and significant way to the natural right of personal self-defense (as Heller suggested), a reasonable claim might be made that it would be uniquely unconstitutional to deny gun permits to otherwise eligible persons on a state sex offender registry. There has long been considerable anecdotal evidence of considerable vigilante violence directed toward persons based simply on their presence on a sex offender registry. Given the history of private violence directed toward sex offenders — not to mention the possibility that local law enforcement might not be too quick to come to the aid of someone they know is a registered sex offender — I can fully understand why Joshua Duehr and other low-level registered sex offender might be afraid to move around in public without packing heat to potentially aid any efforts to exercise their natural right of self defense.

Though I do not fancy myself a Second Amendment expert, I wonder if a state law like Minnesota's  prohibiting misdemeanor sex offenders from having a firearm in constitutional in the wake of Heller and McDonald.  If and when a low-level sex offender in Minnesota or elsewhere could reasonably document a history of serious personal threats of serious violence directed toward him because of his placement on the registry and asserted a genuine belief in his need for a firearm in order to protect himself, could a state really require his name and address to stay on the sex offender registry while also denying him a right to keep and bear arms to defend himself?

May 6, 2013 in Collateral consequences, Gun policy and sentencing, Procedure and Proof at Sentencing, Reentry and community supervision, Second Amendment issues, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (90) | TrackBack

New bipartisan House Judiciary Committee task force to examine overcriminalization

Overcrim graphicAs reported in this Wall Street Journal article, Congress is creating a new federal criminal justice task force to address the problem of Congress creating too much federal criminal justice.  The article is headlined "Task Force Aims to Lighten Criminal Code: Bipartisan Congressional Initiative Targets Bloated Federal Provisions Cited by Critics for Driving Up Incarceration Rates," and here are excerpts:

Congress plans this week to create a new, bipartisan task force to pare the federal criminal code, a body of law under attack from both parties recently for its bloat.

The panel, which will be known as the House Committee on the Judiciary Over-Criminalization Task Force of 2013, will comprise five Republicans and five Democrats.  It marks the most expansive re-examination of federal law since the early 1980s, when the Justice Department attempted to count the offenses in the criminal code as part of an overhaul effort by Congress.

Rep. Bobby Scott (D., Va.) said he expected the committee to work through consensus. "We've been warned it's going to be a working task force and it means we'll have to essentially go through the entire code," he said.

Rep. F. James Sensenbrenner (R., Wis.) a longtime champion of overhauling the code, will lead the task force.  He is expected to reintroduce a bill he has tried to get through several congresses that would cut the size of the criminal code by a third. "Overcriminalization is a threat to personal liberty and an expensive and inefficient way to deal with a lot of problems," he said.

In a city with deep political divisions, the expansion of federal criminal law has created a coalition of allies from opposite sides of the aisle, including the conservative Heritage Foundation, the libertarian Cato Institute, the National Association of Criminal Defense Lawyers, the American Civil Liberties Union and the American Bar Association. Legal experts estimate there are 4,500 criminal statutes and tens of thousands of regulations that carry criminal penalties, including prison.

The Administrative Office of the U.S. Courts figures some 80,000 defendants are sentenced in federal court each year. In recent years, states have reversed years of steady increases by reducing their prison populations while the number of people held at the federal level has continued to climb.  Federal lawmakers and legal experts attribute part of the continuing increase to the rise in criminal offenses and regulations that carry prison time and the creation of laws that don't require knowledge of wrongdoing.

Democrats have long opposed the growth of parts of the system, blaming mandatory minimums for the increase in the federal prison population, especially the rise in African-American inmates.  For Republicans, the encroachment of federal law into areas that could be handled by the states is a top concern....

Other committee members include Rep. Raul Labrador (R., Idaho) and Rep. Karen Bass (D., Calif.). Recommendations made by the task force will be taken up by the House Judiciary Committee, Chairman Robert Goodlatte (R., Va.) said in an interview.

As the first sentence of this post suggests, I am not especially optimistic about the prospects for a new federal criminal justice entity doing a robust job of curtailing the size and scope of the federal criminal justice system.  Nevertheless, simply the creation of this new task force, as well as its composition and commitment to work via consensus, suggests that at least a few persons inside the Beltway have come to realize there can and should be bipartisan efforts to shrink the considerable costs of the massive modern federal criminal justice system.

May 6, 2013 in Federal Sentencing Guidelines, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

California Supreme Court decides localities can ban storefront marijuana shops

As reported in this new AP article, "local governments in California's have legal authority to ban storefront pot shops within their borders, California's highest court ruled on Monday in an opinion likely to further diminish the state's once-robust medical marijuana industry." Here is more about the ruling and the context via the AP:

Nearly 17 years after voters in the state legalized medical marijuana, the court ruled unanimously in a legal challenge to a ban the city of Riverside enacted in 2010.

The advocacy group Americans for Safe Access estimates that another 200 jurisdictions statewide have similar prohibitions on retail pot sales. Many were enacted after the number of retail medical marijuana outlets boomed in Southern California after a 2009 memo from the U.S. Justice Department said prosecuting pot sales would be a low priority.

However, the rush to outlaw pot shops has slowed in the 21 months since the four federal prosecutors in California launched a coordinated crackdown on dispensaries by threatening to seize the property of landlords who lease space to the shops. Hundreds of dispensary operators have since been evicted or closed voluntarily.

Marijuana advocates have argued that allowing local government to bar dispensaries thwarts the intent of the state's medical marijuana law - the nation's first - to make the drug accessible to residents with doctor's recommendations to use it.

The ruling came in the case filed after Riverside city lawmakers used zoning powers to declare storefront pot shops as public nuisances and ban the operations in 2010. The Inland Empire Patient's Health and Wellness Center, part of the explosion of retail medical marijuana outlets, sued to stop the city from shutting it down. A number of counties and cities were awaiting the Supreme Court ruling before moving forward with bans of their own.

The 38-page majority opinion from the California Supreme Court, as well as a three-page concurrence by Justice Liu, can be found at this link.

May 6, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1) | TrackBack

"Plea Bargains that Waive Claims of Ineffective Assistance -- Waiving Padilla and Frye"

The title of this post is the headline of this notable and timely new article by Nancy King now available via SSRN.  Here is the abstract:

This essay addresses the growing use and enforcement of terms in plea agreements by which a defendant waives his right to attack his plea agreement on the basis of constitutionally deficient representation during negotiations leading to the agreement. Contrary to other commentators and some courts, I argue that the Constitution does not forbid the enforcement of such a waiver, and review steps a judge may have to take in order to ensure that a defendant’s express waiver of the right to effective representation during plea bargaining is knowing and voluntary.  I also argue that although the Constitution does not prohibit judges from enforcing broad waivers of the right to attack a plea-based conviction on the basis of poor representation during bargaining, routine adoption and enforcement of such terms would be unwise, and suggest several strategies to avoid this result.

I am looking forward to finding time to read this article, in part because I have seen a number of federal plea agreements than include express waivers of the right to effective representation during plea bargaining.  I have not given much thought to the constitutional status of these plea terms, but I have long thought it ethically questionable for prosecutors to demand such terms in plea agreements and for defense attorney's to urge defendants to accept such a waiver without also advising the defendant to consider seeking outside advice as to whether he can and should accept such a term in any proposed plea deals.

This view is informed by professional conduct rules (such as this one) which often require a lawyer to recommend a client seek another independent lawyer's advice before waiving potential malpractice claims. Waiving a viable IAC claim seems comparable to waiving a malpractice claim; I think similar professional rules ought to apply to lawyers in this kind of setting, especially since it is the client's liberty and future, rather than just his money, at stake in any dealmaking in any serious criminal cases.

May 6, 2013 in Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

You be the judge: how would you sentence for the missed tax payments of Lauryn Hill?

Lauryn HillAfter a rescheduling and now some important repayments, an interesting and high-profile federal sentencing is on tap for this morning in Newark, New Jersey.  This new Reuters article provides the basics for all would-be federal sentencing judges to ponder in order to answer the question in the title of this post:

Hip hop artist Lauryn Hill, on the eve of her scheduled sentencing on federal tax evasion charges, has paid off the balance of more than $900,000 she owed in back taxes and penalties, her attorney said on Sunday.

The Grammy-winning musician is scheduled for sentencing on Monday in U.S. District Court in Newark, New Jersey on three charges she failed to file tax returns on more than $1.8 million between 2005 and 2007.  She faces up to a year in jail for each charge, but the final sentence is expected to be adjusted based on her repayment of the money, her attorney said.

She owed at least $504,000 in federal back taxes as well as state taxes and penalties that brought the estimated total to more than $900,000.  "Ms Hill has not only now fully paid prior to sentencing her taxes, which are part of her criminal restitution, but she has additionally fully paid her federal and state personal taxes for the entire period under examination through 2009," her attorney, Nathan Hochman, said in an email.

In April, Hill was admonished by U.S. Magistrate Judge Madeline Cox Arleo for failing to make promised payments on her unpaid taxes ahead of her sentencing.  She had expected to raise the money from a new recording contract last fall but only paid $50,000 when she did not complete the expected tracks, her attorney said.

Her attorney said last month that Hill lined up a loan secured by two pieces of real estate. He said on Sunday that the tax repayment came from a combination of sources but did not include funds from any new record sales.

A new single by Hill, her first in several years, called "Neurotic Society," was posted on iTunes on Friday.  She posted a link to the song on the social media site Tumblr on Saturday, writing, "Here is a link to a piece that I was ‘required' to release immediately, by virtue of the impending legal deadline.  "I love being able to reach people directly, but in an ideal scenario, I would not have to rush the release of new music... But the message is still there," she wrote.

Hill's 1998 solo album "The Miseducation of Lauryn Hill" won the singer, a former member of the Fugees, five Grammy awards.

Given that it appears Hill has now made the government whole after her tax evasion crimes, and especially given that she apparently can be and wants to continue to be a productive tax-paying member of society, I believe I would be very eager to give Hill some kind of (harsh?  expensive?) alternative to imprisonment sentence.

For all sort of obvious and not-so-obvious reasons, I think a significant fine plus a (very burdensome?) community service requirement could and should achieve all the congressional purposes of punishment better than a brief stint in prison.

Indeed, I think a creative shaming sentence could perhaps be especially appropriate in a case like this.It might be very beneficial, and I doubt unconstitutional, to require as part of a probation term that Hill write and release a few songs in which she discusses the consequences of failing to pay required federal taxes and/or in which she discusses the pros and cons of her experiences with the federal criminal justice system. 

UPDATE:  This AP story reports on the actual sentencing outcome for the federal tax code re-education of Lauryn Hill.  I will let readers click through so as not to turn this post into a "spoiler" before reading the comments.

May 6, 2013 in Celebrity sentencings, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (4) | TrackBack

Sunday, May 05, 2013

Notable new Judge Weinstein opinion on child porn sentencing for juve offender

Over the weekend, experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) alerted me to what he called a "new and (again) excellent opinion by Judge Jack Weinstein" in U.S. v. D.M., 12-CR-170 (EDNY May 1, 2013) (available here).  The opinion runs nearly 50 pages, and Mark provided a summary which he has graciously allowed me to post here:

D.M. is a child porn possession case wherein Judge Weinstein imposed straight probation. What is rather unusual about the case (in addition to the sentence imposed) is the fact that the government initially charged the defendant with distribution, which carries a 5-year mandatory minimum, but later allowed the defendant to plead to a simple possession charge in order for the court not to be bound by the mandatory minimum after the defendant successfully completed a couple of polygraphs regarding whether he intended to distribute (as is typical, he had used a peer-to-peer site to obtain the contraband).

The nature of the plea negotiation is quite interesting, and, as Judge Weinstein rightly notes, counsel for both sides should be congratulated for their effort to seek justice, as opposed to the all-so-typical bidding war regarding months' imprisonment that mirrors what occurs in civil settlement negotiations rather than what should occur (and what did occur here). 

Judge Weinstein begins the opinion as follows: “This case illustrates the sensible cooperation of prosecutor, defense, experts and the court to save rather than destroy an adolescent found to have used his computer to view child pornography.”  How many judges can say that in any criminal case that is resolved by plea?  Far, far too few. 

Judge Weinstein ends thus: “The sentence imposed will provide an opportunity for defendant to succeed in therapy, at school, at attaining employment, and at becoming a functioning and law-abiding member of society. A sentence involving incarceration has been considered and is rejected.  All concerned are best served by following this course.”

This is a good read for all, regardless of practice focus. (Of course, those who have clients charged with child porn, it is a particularly good case to read and cite, not the least of which is because it is the first published opinion to discuss in substantive detail the Commission’s new Child Porn report).

May 5, 2013 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (19) | TrackBack

Boston bombings apparently does not change Massachusetts' legislators perspectives on the death penalty

The conclusion in the title of this post is my take-away from this new Boston Globe article headlined "The death penalty still divides."   Here are excerpts:

The Boston Marathon terrorism attack is stirring renewed talk about restoring the death penalty in Massachusetts, but so far has apparently done little to ease the sharp divide among lawmakers on the issue.

About a dozen area legislators contacted this past week said their positions on capital punishment — for or against — are largely unchanged in the aftermath of the Marathon bombings on April 15 and the killing of a campus police officer that followed.

The issue briefly captured the spotlight on April 23 with a proposed House budget amendment from Representative James Miceli, a Wilmington Democrat. Miceli’s amendment, identical to a pending bill he filed, would have allowed for the death penalty in cases involving the murder of a law enforcement, court, or correctional officer; or a judge, witness, or others involved in the court process. It would also be available for murders involving torture or carried out as an act of terrorism....

But Representative Ken Gordon, a Bedford Democrat who also represents Burlington and a part of Wilmington, opposes the death penalty, even in such limited cases. Gordon said that the horrific actions of the alleged terrorists had not altered his view. “We don’t have the moral authority to kill our citizens. That’s my position and I don’t make any exceptions.”

Miceli’s amendment was effectively defeated when the House, by a 119-38 vote, agreed to a substitute amendment offered by Representative Eugene O’Flaherty, a Chelsea Democrat, calling for a full study of the measure’s impact on the judicial system. Miceli said his amendment was not prompted by the bombings, noting that he filed it three days before the Marathon. But he said he was surprised that the event did not appear to sway his colleagues. “I felt under the circumstances of what had happened on the 15th, that would even give this more impetus, but it didn’t make any difference,” he said....

Miceli, who would favor a broader capital punishment bill, said he is pushing the more narrowly focused bill because he believes it has a better chance of passing. The death penalty has flared as an issue periodically in Massachusetts since the state abolished it in 1984. In 2005, lawmakers rejected a bill filed by then-governor Mitt Romney that is the same measure Miceli is now pushing.

Representative Jason Lewis, a Winchester Democrat, said he has been a longtime opponent of the death penalty, and the recent events did not change that. “In a horrific event like the Boston Marathon attack, understandably it makes us all question what sort of judgment is appropriate for such evil people who commit attacks like that,” Lewis said. But he said he continues to believe that capital punishment is not the right approach “even in the more narrow situation that Representative Miceli proposed.”

Representative John Keenan, a Salem Democrat, said he opposes the death penalty on principle.  “A case like this certainly tests your ability to stand against it in terms of the magnitude of how heinous the crime was.  Personally, you want to see the person punished. But at the end of the day, killing someone to prove killing is wrong is inappropriate,” he said. He also cited the potential for an innocent person to be executed as a factor....

Representative Jerry Parisella, a Beverly Democrat, called the death penalty “an emotional issue and one I’ve been struggling with for quite a while.  I personally don’t want to make a decision based on one particular event.”  Parisella said he leans against the death penalty due to serious concerns about the potential for executing an innocent person.

I think it is notable that even such a dramatic mass murder has apparently not (yet) significantly impacted public policy perspectives on the death penalty in Massachusetts. As criminal justice fans know too well, legislators are often quick (and, in my view, often much too quick) to start talking about making legislative changes in the wake of one high-profile crime and criminal, whether that involves a parolee gone bad or a firearm misused or lying mom acquitted or a suicide by a suspect. But, providing yet another example of how death is different, it appears that long-standing positions on the death penalty are not likely to be remade in the wake of just one notable crime.

Disappointingly missing in this story are any follow-up questions in light of the reality that it appears that the surviving Boston bomber is likely to be facing the death penalty as part of his federal prosecution. I wish the reporter here had followed up with those representatives who support bringing the death penalty on the books in Massachusetts by asking why their efforts are even needed if and when it appears clear that the feds will be able and likely to bring the death penalty on the table if and when any major murder occurs in the state.

Some related recent posts:

May 5, 2013 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (10) | TrackBack