Sunday, September 02, 2012

After six capital case reversals over two decades, should Kansas give up on the death penalty?

The question in the title of this post is prompted in part by this AP piece headlined "Critics: Death penalty must go; Activist says growing number of people against capital punishment."  Specifically, these excerpts from the story makes me wonder whether even strong supporters of capital punishment might conclude that, in the Jayhawk State, the capital punishment game just ain't worth the candle:

A leading death penalty opponent says it's time for Kansas to stop sentencing criminals to be executed after the latest appealed conviction was overturned, the sixth such reversal in six cases before the state's high court.  Donna Schneweis, chairwoman of the Kansas Coalition Against the Death Penalty, says she realizes the odds of repealing the 1994 law are slim, but a growing segment of society is changing its view on capital punishment in the United States....

Attorney General Derek Schmidt said "it's always possible" that the law would get repealed, but he supports keeping it as an option.  "I think that with each year that passes and an increasing body of case law that we are inching closer to a law that can be carried out," said Schmidt, a Republican and former state senator.

Republican Gov. Sam Brownback has spoken out in the past about the death penalty, including his presidential run in 2007 when he said the nation should strive to create a culture of life.  He said at the time that it should be held out for special cases, such as Osama Bin Laden or other terrorist figures.  Sherriene Jones Sontag, the governor's spokeswoman, said Friday that Brownback supports the death penalty "when there are no other options to protect society."...

The last execution in Kansas was in June 1965 by hanging.  The latest case to be overturned was announced Aug. 24 when the court struck the conviction of Scott Cheever for the 2005 shooting death of Greenwood County Sheriff Matt Samuels.  Cheever admitted to killing the sheriff at a southeast Kansas home but said it wasn't intentional and he was under the influence of methamphetamines.

The court struck down the conviction because of testimony given by an expert witness presented by prosecutors who divulged information about a psychological evaluation of Cheever when his case was originally filed in federal court.  Cheever's case began at the federal level because the Kansas death penalty law was ruled unconstitutional by the state court, a decision reversed by the U.S. Supreme Court....

Sen. Terry Bruce, a Hutchinson Republican and member of the Senate Judiciary Committee, said the justices have been "hyper technical" when interpreting the state's death penalty law but that many of the errors identified would be found with any trial.  "It may be that the judiciary is going to scrutinize these cases so much that we never will have an execution in Kansas," he said.

I wonder if a strong but sober capital punishment supporter might actually get behind repeal of the Kansas death penalty if hw were to agree with Senator Bruce's suggestion that the Kansas Supreme Court will likely continue to reverse any and every capital sentencing that comes its way.  Notably, as the most recent reversal highlights, without a seemingly functional capital punishment system, the worst-of-the-very-worst murderers in Kansas (such as a Jayhawk version of Osama Bin Laden or similar terrorist) could and should be capitally prosecuted by the federal government.  (Moreover, I suspect the Tenth Circuit would be generally less likely to reverse a capital sentence than the Kansas Supreme Court.)

Though every case is different and brings up different feelings for different families of victims, I would suspect that many victims' families would prefer the closure of an LWOP sentence than to an initial death sentence that is all but certain to be reversed and then perhaps require retrials.  And an LWOP sentence is likely to be more cost-effective, too.  Then again, if just the possibility of a death sentence may help Kansas prosecutors efficiently get deserving killers to agree to an LWOP sentence, perhaps one can consider capital punishment to still play a useful role even if there is a strong likelihood that the Kansas Supreme Court will never find a capital sentence it can approve.

September 2, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Saturday, September 01, 2012

"Changes in Community Supervision Offer the Get into Jail Free Ticket"

The title of this post is the title of this new paper available via SSRN by Paige Jann. Here is the abstract:

California traditionally had two types of community supervision, probation and parole. While probation generally consisted of a sentence given in lieu of prison with incarceration as a consequence for violating its terms, parole instead consisted of a term of supervision following an individual’s prison sentence.  However, the recent passage of The Criminal Justice Realignment Act (AB 109) drastically changed the landscape of community supervision by shifting the responsibility of supervising certain offenders from the state to the county level.  Companion legislation also amended California Penal Code section 1170(h) to include a new sentencing option called a split sentence, whereby a court can craft a sentence that combines both a period of local incarceration and mandatory supervision.  Ultimately, Realignment legislation combined the oversight of parole, probation, and split sentencing all into one unified agency: county probation departments. A lingering question now remains as to whether each of these very different programs may suffer under such a unification.

This paper examines California’s scheme of felony sentencing and community supervision prior to Realignment, as well AB 109’s various changes to these areas.  Further, this paper critically examines the idea of entrusting all community supervision to one department. These critiques suggest a resulting paradox where offenders may prefer harsher sentencing alternatives over probation because it is more difficult to graduate from the latter.  Finally, this paper concludes that oversight of community supervision may be incapable of integration, and that each program may instead require individual attention. Realignment and its accompanying legislation have drastically transformed California’s criminal justice system.  Examining the extent to which 1170(h) augments county probation departments’ responsibilities may reveal the potential struggles that lie ahead and offer guidance in further implementation of these changes.

September 1, 2012 in Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, August 31, 2012

SCOTUS grants cert on yet another ACCA dispute over predicate offenses

Lyle Denniston has this effective report on two new cases in which the Supreme Court has today granted cert, and here is the discussion of the one sentencing case:

The Court’s order granting review of the burglary case involves the use of a state burglary conviction as a basis for enhancing a sentence for a federal crime under the Armed Career Criminal Act. The case involves a Spokane, Wash., man, Matthew Robert Descamps, who was convicted of the federal crime of being a felon who had a gun illegally.  He was sentenced under that Act to 262 months in prison, based in part on a 1978 conviction — a guilty plea — for the burglary of a grocery store in California, treating that conviction as one for a “violent felony.”

In his petition, Descamps’s lawyers argued that the burglary conviction should not count in the sentencing calculation, because the California law at issue does not include the element of entering or remaining illegally at the site of the alleged crime.  That omission, the petition claimed, means that the crime does not fit the definition of “generic burglary.”  The Ninth Circuit, however, supplied that element, finding that burglary under the California law at issue in Deschamps’s case is broader than “generic burglary,” and thus counts under the ACCA.

The U.S. Solicitor General had urged the Court not to hear Descamps’s case, even though the government conceded that there is some disagreement among lower courts on when a federal court may supply a missing element of a crime, using what is technically called the “modified categorical approach.”  The Solicitor General said that conflict predates a definitive ruling on the issue by the Ninth Circuit, so Supreme Court review at this point would be premature.

August 31, 2012 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Drawing process lessons from high-profile sentencing after college killing in Virginia

The high-profile homicide case emerging from the University of Virginia, in which George Huguely was convicted of second-degree murder in the beating death of his former girlfriend Yeardley Love, culminated in a Virginia state sentencing proceeding yesterday.  This extended ABC News report provides considerable sentencing details:

A Virginia judge today sentenced convicted University of Virginia murderer George Huguely V to 23 years in prison for the beating death of his ex-girlfriend Yeardley Love.  He will serve 23 years, plus one concurrent year for the grand larceny conviction, ruled Judge Edward Hogshire of Charlottesville Circuit Court.  He also ordered three years of probation after the 23....

Huguely's attorneys told reporters outside the court that they plan on appealing both the conviction and the sentence. "Our client, Mr. Huguely, remains optimistic," the attorneys said.

In a statment, the Huguely family wrote, "Today is a sad day for our family.  The past twenty-eight months have been the most difficult in our lives.  We love George and will always support him."  They maintained that Love's death was "an accident with a tragic outcome," and said that, "Yeardley will always be in our hearts."

Love's mother and sister, Sharon and Lexie Love, also released a statement in which they thanked prosecutor David Chapman and everyone who helped them through the past two years.  "We find no joy in others' sorrow.  We plan to work diligently through the One Love Foundation to try and prevent this from happening to another family," they wrote....

Huguely's attorneys asked a Virginia judge today to consider reducing the former University of Virginia athlete's sentence to 14 years in prison, from the 26 years recommended by a jury.  The judge cut the recommended sentence by three years.

The prosecution and defense both called multiple witnesses to the stand for the sentencing, including former classmates, Huguely's aunt and a priest.

Rev. Joseph Scordo said he has visited Huguely in jail every Monday for a half-an-hour for the past two years. Scordo described Huguely as "spiritual" and said the two spoke freely about "faith, prayer, life, religion, family, UVA, sports." Scordo said he has never asked Huguely about the night of Love's death, but that Huguely frequently says, "I want the truth. I want the truth to come out. I have a lot of hope in Him, in God."

The prosecution's witnesses painted Huguely as a violent young man who struggled with his temper and alcohol. Huguely's former lacrosse teammate Gavin Gill told the court that he vividly remembered waking up to Huguely on top of him in bed, beating him up after he had left a party the previous night with Love.

The jury recommended 25 years in prison for the second-degree murder conviction and one year for a grand larceny conviction resulting from an allegation that Huguely stole Love's laptop computer.

Huguely's defense attorneys wrote that sentencing guidelines for convictions of second-degree murder and grand larceny "considering Mr. Huguely's negligible criminal record" recommend a sentence of 14 to 23 years.  "Beyond the obviously tragic outcome, there are no facts in this case sufficiently aggravating to warrant a sentence above the low end of the guidelines or a sentence inconsistent with those imposed across the Commonwealth for like offenses," the defense wrote.  Court documents filed on Wednesday by Huguely's defense team include numerous personal accounts from family and friends praising Huguely and asking for leniency

Huguely killed Love, 22, in a drunken rage in May 2010 just weeks before she was to graduate from the University of Virginia.  Both Huguely and Love were star lacrosse players on the university's elite teams.  Huguely faced six charges, including first-degree murder, in Love's death.

Over 10 days in court, jurors listened to testimony from nearly 60 witnesses and saw a video of Huguely's police statement, graphic photos of Love's battered body, and read text and email correspondence between the two.  Though charged with first-degree murder, the judge gave jurors a menu of lesser charges they could from: second-degree murder, voluntary manslaughter and involuntary manslaughter.

Neither the prosecution nor the defense denied that Huguely was in Love's room the night of her death and was involved in an altercation with her.  They differed on the severity of the encounter and whether Huguely was directly and intentionally responsible for Love's death.

Though I am not well-versed in Virginia sentencing procedures, it is my understanding that the sentencing judge here could not have increase Huguely's sentence above what was recommended by the jury, but rather only had authority to reduce the sentence. And it appears that advisory sentencing guidelines (including, I believe, an evidence-based risk assessment instrument) provided recommendations to the judge (along with arguments from the parties, of course) as to whether and how much he might reduce the sentence below the jury's recommendation.

Without making any judgments on the Huguely sentencing outcome, I have to express great respect and confidence in the Virginia state sentencing process because of all the perspectives that get brought to bear.  The jurors and judge who heard all the trial evidence along with additional sentencing information both have a significant and independent role in the process, and the final sentence is informed not only by arguments from the litigants but also by advisory guidelines reflecting systemic and evidence-based judgments by the Virginia's elected officials and its expert sentencing commission.  At least on paper and as a fair and transparent process, this seems like a pretty darn good sentencing decision-making system all around.

August 31, 2012 in Offense Characteristics, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (11) | TrackBack

Thursday, August 30, 2012

Despite (suspect?) commutation, Iowa judge grants post-Miller relief for juve killer sentenced to LWOP

As reported in this local article from Iowa, which is headlined "Jeffrey Ragland, sentenced to life at 17, may soon be a free man," a defendant in Iowa convicted of murder and sentenced to life without parole back in 1986 may now be getting a shot a freedom thanks to the Supreme Court's Eighth Amendment work a few months in Miller.  Here are the details:

For the first time in nearly 26 years, there is a light at the end of the tunnel for Jeffrey Ragland. Fourth District Judge Timothy O'Grady said Tuesday that Ragland should be eligible for parole immediately, after ruling that his life sentence without parole for the 1986 murder of 19-year-old Timothy Sieff was cruel and unusual punishment....

In 1986, a jury found Ragland, then 17, guilty of first-degree murder.  Sieff died of head injuries after being struck with a tire iron during a fight in a supermarket parking lot. Ragland's friend Matthew Gill wielded the tire iron.  Two other teens also were charged in the assault.

Gill and the two other teens accepted plea bargains.  Gill pleaded guilty to second-degree murder and was sentenced to 50 years in prison.  He was paroled after three years.

Iowa City attorney Jon Kinnamon, who represented Ragland along with Council Bluffs attorney Tom Lustgraaf, said he realized that there is tragedy in the incident: “Timothy Sieff was the recipient of a greater injustice.”  Still, he said, the time that Ragland has spent in prison compared with Gill is inappropriate.

The Iowa Supreme Court ruled in March that Ragland could challenge his sentence and seek a ruling on whether it constituted cruel and unusual punishment under the state and federal constitutions.  That hearing was put on hold, however, until after the U.S. Supreme Court had addressed a similar matter.  In June, the U.S. Supreme Court ruled it unconstitutional for a state to require a juvenile convicted of murder to be sentenced to life in prison without parole.  The court's 5-4 ruling left open the possibility that a judge could sentence a juvenile to a life term in an individual case but said state law cannot automatically impose such a sentence.

After the Supreme Court decision, Iowa Gov. Terry Branstad commuted the mandatory life sentences of 38 convicted killers who committed their crimes as juveniles.  The governor's action changed the sentences from life without the possibility of parole to life sentences that allow parole after 60 years have been served behind bars.

O'Grady said Tuesday that Branstad's commutation does not fit with the intent of Iowa law, which says a person under age 18 who commits a Class A felony is eligible for parole after serving a minimum of 25 years in prison.  “I believe Mr. Ragland is eligible for parole now after serving 25 years in prison,” O'Grady said.  “The decision whether or not or when it is granted rests with the Board of Parole.”

This article reinforces my sense that the equities of each individual juve murder case will often, directly or indirectly, whether an how a defendant now garners relief from the Supreme Court ruling in Miller. Based on this press report, it appears that the defendant in this Iowa case was involved in a killing which was, relatively speaking, not among the most aggravated, and for which other defendants received significantly less punishment. As a result, it seems that local prosecutors did not strenuously resist the defendant getting some benefit from the Miller decision.

I suspect there will be (many?) much more aggravated murder cases, in Iowa and elsewhere, in which a local prosecutor will be much more eager to argue against a juvenile killer getting any kind of revised sentence.  When that happens, not only might a trial judge be less likely to rule in the defendant's favor, but prosecutors may then be more eager to challenge any granted relief on appeal.

August 30, 2012 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

More wrongful federal gun convictions and sentences being remedied in North Carolina

As reported in this local piece, headlined "Judge rules five inmates wrongly sentenced on gun charges," a federal judge in North Carolina has ordered more relief for defendants wrongly charged as a felon for possessing firearms.   This action comes in the aftermath of the story blogged here and well covered by USA Today concerning many persons serving federal time for gun possession crimes that are no longer crimes in the wake of an important recent Fourth Circuit ruling.  Here are the details:

Civil libertarians and defense attorneys were heartened Wednesday when a federal judge vacated convictions of two men wrongly imprisoned on gun-related charges without any challenge from prosecutors. U.S. District Judge Terrence Boyle also reduced sentences for three other federal inmates seeking relief after a 2011 U.S. Court of Appeals case decision effectively changed the definition of who could be considered a felon.

Boyle’s rulings came several weeks after the U.S. Department of Justice told prosecutors to stop using procedural grounds to block legitimate appeals for relief....

For many years, the federal courts in North Carolina treated defendants as felons when their criminal records were not serious enough for that designation, according to the Fourth Circuit Court of Appeals case known as the United States vs. Simmons....

The American Civil Liberties Union and the ACLU of North Carolina Legal Foundation have been working in recent months to identify which prisoners are either wrongfully incarcerated or serving unnecessarily long sentences because of the quirk in North Carolina sentencing laws highlighted in the federal court of appeals ruling.

The federal government defines a felony as a crime punishable by death or imprisonment in excess of a year, and someone convicted of such a crime is a felon. But the federal courts in North Carolina were treating defendants as felons when their criminal records were not serious enough for that to be the case, the Fourth Circuit Court of Appeals found. As a result, a person with a less serious criminal record could be sentenced as if he had a lengthy one.

Though civil libertarians and defense attorneys would like more help from the federal government identifying hundreds of inmates caught in the ruling, they lauded the decisions on Wednesday. “It’s certainly encouraging the government is no longer standing in the way of folks who are already bringing appeals,” said Christopher Brook, legal director of the ACLU of North Carolina. “I would label this as a positive first step. There need to be a number of other steps before we get comprehensive justice.”

Related post:

August 30, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, August 29, 2012

"Pricing Amy: Should Those Who Download Child Pornography Pay the Victims?"

The title of this post is the headline of this lengthy and effective new article in the latest issue of the ABA Journal.  Here is a small excerpt from a piece that merits a full read for any and everyone concerned with issues surrounding child porn sentencing or restitution punishment:

Under the Crime Victims’ Rights Act, the government must notify Amy and other child pornography victims anytime anyone is arrested by federal authorities for possessing their images. Her attorney, James Marsh of New York City, says his office has received at least 1,500 required notices of federal prosecutions for possession of those images. “The day after we were retained in 2008, we had someone open up all these notices she received in the calendar years 2006 and 2007,” Marsh says. “It took two days just to open the envelopes.”...

The restitution portion of VAWA requires full compensation for victims’ losses, regardless of the defendant’s ability to pay. The D.C. Circuit noted this in April 2011 in U.S. v. Monzel, when it remanded a partial restitution order so the trial court could calculate “the full amount of the victim’s losses.”

However, the full-restitution requirement creates another problem with using VAWA in cases like Amy’s: how to split the restitution payment among all of the defendants who may be charged with possession of the same images. The act provides for joint and several liability among defendants in the same case, but what about defendants in multiple cases, in numbers nobody can predict? How should responsibility be apportioned between each of them, plus the original maker of the child pornography? And how can the justice system track what the victims actually receive?

Legal experts say there’s no precedent for these questions under VAWA or anywhere else in criminal law or in tort law. Several appeals courts have dedicated parts of their opinions to the problem, and federal district courts have struggled, with some developing a flat-rate scheme on their own. These include the Eastern District of California, which in three cases awarded $3,000 per victim, extrapolating from a provision in 18 USC § 2255 that minor victims of sexual exploitation may be deemed to have suffered civil damages no less than $150,000. In another case, a court in the Western District of Washington awarded $1,000 per image in U.S. v. Kennedy (later reduced to zero by the 9th Circuit at San Francisco).

Marsh says it’s his policy to file for full restitution—the full amount of Amy’s lost income, past and future psychiatric treatment, loss of enjoyment of life and attorney fees—in nearly every case, regardless of what other orders his client has received and regardless of the defendant’s means. He says Amy doesn’t care where the money comes from as long as she is made completely whole. He and Carol Hepburn of Seattle, Vicky’s attorney, argue that the system should not put the burden of working out these details on victims. Complicating matters further, Hepburn says, is the problem of collecting. “Just because an order is entered doesn’t mean one is going to get payment,” she points out. “In fact, I can remember early on a prosecutor telling me: ‘I got you a $10,000 order, but good luck getting anything because this guy’s going to get deported after he gets out of jail.’ ”

Even without immigration problems, defendants may have no money left after their defense, and no way of earning it while serving the long prison sentences typical in child pornography cases. Hepburn and Marsh say they receive some large checks as well as a few regular payments from prison wages. In some circumstances, particularly when the defendant is indigent, they may also work out arrangements with prosecutors or defense counsel.

August 29, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Reform records notable (though not so far noted) at Republican National Convention

I listened to most of the major speeches during the first night of the Republican National Convention; not surprisingly, I heard no mention of crime and punishment issues.  But that does not mean RNC speakers lack notable records on crime and punishment issues, as this post from FAMM Florida Project Director Greg Newburn highlights:

The Republican National Committee's list of speakers for the GOP convention ... [includes many speakers who have] embraced the “Smart on Crime” model ..., and in the process have demolished the tired idea that conservatives aren’t open to common-sense criminal justice reform.

Take Former Arkansas Governor Mike Huckabee, who could never be confused with a liberal.  He has argued that “we have not been very successful in incarcerating our way out of the drug problem.  We’ve created a bigger problem.  Our prisons are teeming with people who don’t need to be incarcerated as full-time inmates . . . I’m not soft on crime. Crime needs to be punished, but realistically, and justly.”...

Ohio Governor John Kasich ... has a lifetime rating of 88% with the American Conservative Union.  Governor Kasich made criminal justice reform a priority of his administration, and last year he signed a reform bill designed to “send low-level nonviolent felons to rehabilitation facilities in lieu of prison, put a credit-earned system in place, and adjust prison sentences for drug and petty theft offenses.  The package was proposed as a means to save money, reduce recidivism, and ease overcrowding.”...

Another speaker, Former Florida Governor Jeb Bush, recently joined Right on Crime, a group of conservative heavyweights that supports criminal justice reform (including mandatory minimum sentencing reform) and includes Grover Norquist, Newt Gingrich, and Ed Meese.  Governor Bush said of the effort, “States across the country, including Florida, are proving that policies based on these sound conservative principles will reduce crime and its cost to taxpayers.”

Oklahoma Governor Mary Fallin worked with Right on Crime, the American Legislative Exchange Council, and Republican legislators to craft a comprehensive Justice Reinvestment bill that included sentencing reforms and is projected to save her state millions of dollars.  On signing the bill, Governor Fallin said, “[I]n addition to saving tax dollars, [community sentencing options ] will help nonviolent offenders, many of whom have substance abuse problems, to receive treatment and safely get back into their communities.”

Of all the speakers at the convention, Senator Rand Paul might be the most vocal critic of mandatory minimum sentencing.  Not only has Senator Paul blocked federal drug legislation because it contained mandatory minimums, he’s said on the record that “On mandatory minimums, I don’t think teenagers accused of possessing drugs should get twenty years in prison.  I’ve fought to get rid of this.”

Perhaps most notably, New Jersey Governor Chris Christie said recently that “[t]he war on drugs, while well-intentioned, has been a failure.”  Christie signed reform legislation designed to reduce New Jersey’s reliance on incarceration in drug cases, and made the case that such reforms go beyond saving money:  “If you're pro-life, as I am, you can't be pro-life just in the womb,” he said. “Every life is precious and every one of God's creatures can be redeemed, but they won't if we ignore them.”

Across the country, conservatives understand that criminal justice systems should be subject to the same analysis as every other area of public policy.  They realize we spend far too much on incarceration and receive far too little in return.  Thankfully, some of the GOP’s “brightest stars” have made criminal justice reform a part of governing and leading “effectively and admirably.” It’s good to see the Republican Party not only embracing such reforms, but also rewarding the conservative leaders in criminal justice reform with a chance to share their views at the convention.

Some recent and older related posts:

August 29, 2012 in Campaign 2012 and sentencing issues , Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, August 28, 2012

What should a registered sex offender do when running from a hurricane?

For anyone who ever wondered what registered sex offenders are supposed to do when a hurricane is headed toward them, the Attorney General of Louisiana has released this helpful notice for those in the path of Isaac:

Under Louisiana law, you are required to notify law enforcement of any changes in residence, including any temporary situation that may cause an absence from your usual place of residence for more than seven days.

If you are traveling to another state, you should check-in with the law enforcement agency in that location to determine the reporting requirements in that state.  If you decide you need to evacuate to a shelter, contact your local parish sheriff or Office of Emergency Preparedness and inform them that you are a registered sex offender/child predator who is seeking shelter as a result of Hurricane Isaac.  They will advise you of the shelter to which you must report.

The easiest and quickest way to comply with these reporting requirements is to log onto the Internet-based law enforcement notification service provided by the Louisiana Sheriffs’ Association at  If you are unable to access the Internet for any reason, you are required to directly notify the appropriate law enforcement agencies of the change in your geographic location.

August 28, 2012 in Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

California struggles with prison realignment plans and alternative programming

The Fresno Bee has this effective report on the implementation challenges for California's prison realignment in the wake of the Supreme Court's Plata ruling.  The piece is headlined "California jail overhaul assessed after 6 months," and here are excerpts:

The overhaul of California's criminal justice system last year was billed as a way to get more felons into treatment and out of the vicious cycle of crime, prison and more crime. So far, this has hardly been the case.

Most offenders who qualify for rehab services instead of incarceration under the state's new realignment policy are still being sentenced to time behind bars, reports show.  Only a fraction are ordered to programs that include mandatory drug counseling or job training.

Additionally, the majority of these offenders, because of the way the new policy works, don't get supervision after their release from custody.  This supervision was common before the realignment began.

These shortfalls are adding to concern that the restructured criminal justice system, nearly a year after its October start, may not live up to promises of rehabilitating criminals. "Inmates are going to be coming out of custody unprepared, and they're going to be more likely to reoffend," said Fresno County Sheriff Margaret Mims.  "This defeats the whole purpose of realignment."

The realignment shifts responsibility for most nonviolent felons from the state to counties. (Violent offenders still go to state prison.) Gov. Jerry Brown saw it as a way to relieve the state's overcrowded prison system and, on this front, it's been a success. The prison population has shrunk by more than 15 percent.

Counties, it was expected, would do a better job of managing low-level criminals than the state, by offering treatment services tailored to local needs.  During the first six months of realignment, about 72 percent of the nearly 15,000 statewide offenders newly sentenced to counties instead of the state were given straight jail time, according to a recent report by the Chief Probation Officers of California....

"I think judges are still stuck in the old mind-set where they say, 'Hey, this guy deserves a harsher sentence,' " said Allen Hopper, who has studied the realignment and works as criminal justice director at the American Civil Liberties Union of Northern California.  Six percent of the state's low-level offenders were sentenced to probation programs during the first six months of realignment, while 21 percent were sentenced to a combination of jail and probation, according to the recent report....

State officials overseeing the realignment said they are not in a position to comment on how judges are doing with the sentencing.  They said it is a matter for each county to work out. But California Department of Corrections and Rehabilitation spokesman Jeffrey Callison said that the new policy encourages counties to make use of alternatives to jail.

In Fresno County, the Probation Department, like other probation programs across the state, has begun to beef up its alternative services, from drug rehab to vocational assistance to daily check-in centers.  "We would like to get a shot at these offenders and get them into a program," said Fresno County Chief Probation Officer Linda Penner.  "We feel strongly that a period of intervention, some sort of program, is meaningful."

Penner noted that the policy of realignment is not even a year old, and she's optimistic that its effectiveness will improve with time.  "It's still pretty early," she said.  "As programs strengthen and more alternatives are out there, I expect judges are going to have a higher comfort level and we'll see more people in programs."

Among other lessons, this report and the broader post-Plata story in California reveals that it is critical to change attitudes and culture as well as the legal rules in order to have a real shot at even modest success with major sentencing reforms.

August 28, 2012 in Criminal Sentences Alternatives, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8) | TrackBack

Saturday, August 25, 2012

Following the money in ballot contests over marijuana legalization

This new Reuters article, headlined "Legal marijuana backers raise $3 million in two US states," reports on the state of the ballot race (and the place of money in the race) concerning marijuana legalization. Here are excerpts from the piece:

Campaigns to become the first U.S. states to legalize marijuana for recreational use in Washington and Colorado have raised $3 million ahead of a November vote, far outpacing the opposition.

Proponents of pot legalization in Washington state have raised nearly $2 million since the initiative qualified for the ballot in January, and about $1 million in Colorado since its measure earned a place on the ballot the following month, according to the most recent state campaign figures.

In Oregon, where a voter referendum qualified in July, the legalization campaign reported less than $1,000 in contributions. All three state measures go on the ballot in November, when Americans vote for president and other offices.

With their war chests, backers of legalization drives in Washington state and Colorado have already bought television ads in a bid to convince voters, especially those who have never smoked pot, of merits of legalizing and taxing it....

"If one of these initiatives wins, it will really be a breakthrough," said Ethan Nadelmann, executive director of the Drug Policy Alliance, which seeks alternatives to the current U.S. policy to combat drug use. "And in the end, just as there has been a federal-state conflict involving medical marijuana, we anticipate there will be similar conflicts when states begin to legally regulate marijuana like alcohol," he said. "But the only way we think change can happen is through this process."

Polls indicate support in Colorado and Washington for legalizing pot. A July poll by Survey USA of 630 registered voters in Washington state said 55 percent backed the marijuana legalization ballot measure. The margin of error was 4 percent. Rasmussen Reports said its June poll of likely Colorado voters showed 61 percent supported legalizing and regulating pot. The survey had 500 respondents and a margin of 4.5 percent.

Billionaire Peter Lewis, the Ohio-based chairman of Progressive Insurance who helped finance successful state-level campaigns for medical marijuana, has emerged as the Washington state legalization measure's largest supporter with total contributions this year of $875,000.... Drug Policy Action, a group related to New York-based Drug Policy Alliance, has given $600,000 this year to the Washington legalization campaign.

The Washington, D.C.-based Marijuana Policy Project has given the two registered groups behind the Colorado campaign most of their roughly $1 million in funds, state records show. Lists of donors to Marijuana Policy Project and Drug Policy Action are not publicly available....

[O]pponents of legalization have so far fallen short in fundraising. State campaign figures show that Smart Colorado has raised the most of any anti-legalization group, but its 2012 total stands at less than $40,000.

Holcomb said her pro-legalization group bought more than $1 million in TV air time in Washington state this month. In Colorado, the Campaign to Regulate Marijuana Like Alcohol spent $800,000 for fall season television ads, said Mason Tvert, co-director of the group.

August 25, 2012 in Elections and sentencing issues in political debates, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (5) | TrackBack

Gambia gets real serious about carrying out death sentences real fast

Gambia-mapAs reported in this AP article, the African country of Gambia has just completed nine executions and it gearing up for dozens more. Here are the details:

Gambia has executed nine convicted criminals, the Civil Society Associations reported Saturday as Amnesty International warned that dozens more on death-row are under imminent threat as the West African nation carries out its first death sentences in 27 years.

President Yaya Jammeh vowed earlier this month to execute all inmates sentenced to death "to ensure that criminals get what they deserve, that is, those who killed are killed and those who deserve to be put away from the society are put away from the society in accordance with the law."

A government statement issued late Friday night said "All persons on death row have been tried by the Gambian courts of competent jurisdiction and thereof convicted and sentenced to death in accordance with the law. They have exhausted all their legal rights of appeal as provided by the law."

It added "the peace and stability of our beloved nation as regards to protection of the lives, liberty and property of individuals must at all cost be preserved and jealously guarded."

Eight men and one woman were removed from their prison cells Friday night and executed, London-based Amnesty reported, quoting "credible sources." It said two of those executed are believed to be foreigners from Senegal.

A barrage of protests met the move, with expressions of shock coming from the African Union, the Economic Community of West African States, the French and Nigerian governments and human rights groups. It was not clear how the prisoners were executed, but Gambia's constitution says executions should be by hanging. "What is however clear is that inmates were rounded up at 9.30 p.m. Thursday August 23 and that by the morning of August 24, the bodies were actually lying in the Mile Two Prison yard," the Civil Society Associations of Gambia reported.

Amnesty warned "more persons are under threat of imminent executions today and in the coming days." Amnesty said the executions are the first in Gambia since 1987. Gambia reinstated the death penalty in 1995 but had not executed anyone, former minister Omar Jallow has told The Associated Press.

Amnesty said there were 47 inmates on death row before Friday's executions: government figures put the number at 42 men and two women and another three men reportedly also received the death sentence this year.

Capital punishment can be imposed in Gambia for murder and treason. Three of those reportedly executed had been sentenced for treason, Amnesty said. It's not known how many of those on death row have been sentenced for alleged coup-plotting, a treasonable offense that could indicate Jammeh is using the executions to get rid of political opponents.

Perhaps those deeply troubled by how California officials have handled its (now seemingly dormant) death penalty lately ought to try to get officials in Gambia to give some instructions to capital punishment colleagues on a very different west coast.

August 25, 2012 in Death Penalty Reforms, Sentencing around the world, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, August 24, 2012

"Do the justices really deserve a three-month vacation?"

As I try to keep up with the sizeable number of criminal law opinions that the federal circuit courts hand down this time of year, the question in the title of this post caught my eye as the sub-heading of this notable Slate commentary by Amanda Frost.  Here are excerpts:

It’s August. Do you know where your Supreme Court is?

A good bet is that none of the nine justices are in Washington, D.C. As Chief Justice John Roberts once quipped: “Only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.”  (Roberts made that statement while serving as an attorney in the Reagan Administration.)  The justices are free to leave town as soon as they issue their last decision of the term in late June, and they are usually not to be found back in the nation’s capital until the first Monday in October — the official start of the new Supreme Court term.  Many of the justices use this chunk of free time to travel, lecture, write books, and teach, among other activities. This summer is no exception....

Should the leaders of the judicial branch be in a position to use “summer” as a verb, particularly when they take advantage of the time off to moonlight as law professors? Or is the summer break a harmless perk?

Either way, the summer recess comes with some significant costs.  Because the justices do not meet to decide whether to grant or deny review in cases during the summer months, thousands of legal petitions pile up during their absence.... The impending summer recess can also force the court to rush decisions without taking the time to articulate their reasoning....

The three-month break is particularly galling at a time when the Supreme Court decides fewer cases than any other court in modern times.  In recent years, the court has heard an average of about 80 cases a term, which is half the number they heard 20 years ago and makes up fewer than 1 percent of the approximately 10,000 review petitions they receive. The rest of the federal judiciary does not get the same extended summer vacation, and they handle a great deal more cases.  It is also a little disconcerting that many of the justices use the time off to generate outside income.  Shouldn’t their time be filled by the job they are paid (by all of us year-round working taxpayers) to do?

Of course, the summer recess probably offers some important psychological benefits. Hopefully, the justices use the break to reflect on the previous term and their role in our system of government.  Visits to foreign countries will likely broaden what otherwise might become parochial perspectives....

Still, it’s worth remembering that the justices did not always have it so good.  In 1789, Congress required the very first Supreme Court to meet in August for the start of its term — and this in an era without air conditioning.  Worse, that Congress assigned the justices double-duty as circuit court judges: In addition to deciding cases as members of the Supreme Court, the justices were required to “ride circuit” around the United States to hear cases in their capacity as lower court judges.  Circuit riding continued for the next 100 years.

So perhaps Congress should abolish the court’s three-month recess, and maybe even reinstate circuit riding, as a few scholars have already suggested.  Of course, these hardships will make a job on the Supreme Court less attractive than it is today.  That was certainly the case in 1801, when President John Adams was turned down by his first choice for chief justice before finally convincing John Marshall to accept the post.  (Former Chief Justice John Jay declined Adams’ nomination to serve in that position again, saying that the office lacked “dignity.”)  If nothing else, abolishing the justices’ summer vacation might lead to greater turnover on the high court — a possibility that might appeal to Democrats, Republicans, and any justice who’d rather spend more time on the Mediterranean.

August 24, 2012 in Who Sentences? | Permalink | Comments (5) | TrackBack

Stressing AEDPA deference, Eleventh Circuit upholds Florida law requiring defendant to prove lack of mens rea for drug crime

Long-time readers may recall the news last year of a federal habeas ruling in Shelton v. Florida DOC, No. 6:07-cv-839-Orl-35-KRS (M.D. Fla. July 27, 2011), finding unconstitutional the operation of Florida's criminal drug laws because it made lack of mens rea an affirmative defense for a defendant to prove rather than require state prosecutors to prove a defendant was knowingly involved in an illegal drug transaction.  Today's follow-up comes via this Eleventh Circuit ruling in Shelton, which starts this way:

A Florida state prisoner petitioned for federal habeas relief, challenging the constitutionality of a Florida statute that altered the mens rea requirement for state drug offenses.  The district court, finding a due process violation, granted relief.  We conclude that the state court did not unreasonably apply clearly established federal law, as determined by the U.S. Supreme Court, and reverse.

Here is a segment of the Eleventh Circuit panel's substantive analysis:

In order for Shelton to prevail here, he must be able to point to Supreme Court precedent clearly establishing that the Due Process Clause forbids the partial elimination of mens rea as an element of crimes analogous to those in Florida’s Drug Abuse Prevention and Control Act, beyond any possibility for fairminded disagreement.  That is a tall order, and as it happens, an impossible one....

[A] fine-grained parsing of Supreme Court precedents is unnecessary to resolve our constricted inquiry.  One very general principle can be distilled from the Court’s cases in this area: legislatures have “wide latitude . . . to declare an offense and to exclude elements of knowledge and diligence from its definition,” but they still must “act within any applicable constitutional constraints” when defining the elements of a criminal offenses.  The Court has not drawn lines around this principle sufficient to dictate a particular result of the Florida court here, especially considering that Florida’s elimination of mens rea was only partial.  The Supreme Court has acknowledged that its work in this area has only just begun, noting twice that no court “‘has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not.’”  Absent a Supreme Court case directly on point or a case so closely analogous that fairminded jurists would agree that its rule must extend to the present scenario, the Court’s acknowledgment of uncertainty in this key principle effectively answers the AEDPA inquiry in Florida’s favor.

Today, we need not march through all Supreme Court cases to prove the negative that the Supreme Court has never addressed Shelton’s issue head-on, much less addressed it in his favor.  It suffices to note that only once, in Lambert v. California, has the Supreme Court held a criminal provision unconstitutional under the Due Process Clause for failing to require sufficient mens rea.  Lambert was an as-applied challenge to a Los Angeles municipal ordinance requiring felons to register with the city.  The Court held that because failing to register is “wholly passive,” the defendant lacked any notice whatsoever of her wrongdoing, violating her due process rights.  The actions criminalized by the Florida Act as amended are sufficiently distinguishable — requiring affirmative acts of selling, manufacturing, delivering, or possessing, in addition to knowledge of the presence of the substance, all with an affirmative defense of lack of knowledge available — that we cannot say the state courts were unreasonable not to import Lambert’s reasoning into this very different context.

August 24, 2012 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

"21-Year Sentence For Norwegian Killer Of 77; But He May Serve For Life"

The title of this post is the headline of this NPR report on the sentencing in Norway of Anders Breivik. I selected this piece to link on the blog because it provided a seemingly more accurate (and reassuring?) headline than some other press accounts which perhaps suggest Breivik could be a free man within a decade.   Here is how NPR explains matters:

At first the news may be a shock because of what would seem to Americans to be such a relatively light punishment considering the crime: Anders Behring Breivik, the "self-styled anti-Muslim militant" who killed 77 people in Norway on July 22, 2011, was sentenced today by a five-judge panel in Oslo to a minimum of 10 years in prison and a maximum of 21 years, as The Associated Press reports.  Twenty-one years is the most Norwegian law would allow. There is no death penalty in Norway.

But, the wire service adds: "Such sentences can be extended as long as an inmate is considered too dangerous to be released.  Legal experts have said that in Breivik's case that could mean he will spend the rest of his life in prison."  The Norway Post puts it this way: the prison sentence can be "prolonged at a later date, five years at a time, if he is deemed to remain a danger to society."

Part of today's ruling also focused on the issue of whether Breivik is sane enough to be held criminally responsible for the slaughter.  The court concluded he is.  On Morning Edition today, New York Times correspondent Alan Cowell said the verdict and sentence is something of a victory for Brevik because he did not want to be declared insane.  "If he'd been found insane, he could have been treated indefinitely," Cowell said.  Also, in Breivik's mind the sanity judgment lends credibility to his crimes.

Recent related post:

August 24, 2012 in Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, August 23, 2012

NAACP gets behind marijuana legalization inititative in Colorado

As reported in this local article, the "Colorado ballot initiative to legalize limited possession of marijuana for adults is set to pick up an endorsement from a civil rights organization Thursday." Here is more:

[T]he head of the Colorado, Wyoming and Montana conference of the National Association for the Advancement of Colored People is expected to announce the conference's support for the initiative, Amendment 64.  The conference's president, Rosemary Harris Lytle, said Wednesday the endorsement comes not out of an interest in marijuana use but instead from a concern over the lopsided numbers of African-Americans arrested for marijuana offenses.

"In ending the prohibition against adult use of marijuana we might affect mass incarceration and its disproportionate impact on African-Americans and other people of color," Harris Lytle said.

In 2010, African-Americans accounted for roughly 9 percent of all arrests for marijuana possession in Colorado and 22 percent of arrests for marijuana sales or cultivation, according to figures advocates pulled from FBI data.  African-Americans made up about 4 percent of the Colorado population that year.

The local NAACP endorsement follows a similar endorsement by the California NAACP of a marijuana-legalization measure there in 2010.  And it is in line with the national NAACP's stance against the drug war.  "The realization is that drug laws have been disproportionately enforced against communities of color," said Niaz Kasravi, the national NAACP's criminal justice director.

Adams County District Attorney Don Quick, who opposes the initiative, agreed that African-Americans are over-represented in the criminal justice system.  "There's no denying it and that's wrong," Quick said.  "But the answer to that isn't to make marijuana more available in the community."

Quick said a proliferation of marijuana among adults will trickle down to kids, resulting in lower graduation rates and more discipline problems.

August 23, 2012 in Pot Prohibition Issues, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3) | TrackBack

"Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics"

The title of this post is the title of this notable new paper by Margo Schlanger now available via SSRN. Here is the abstract:

Last year, a bare majority of the U.S. Supreme Court, in an opinion in Brown v. Plata by Justice Anthony Kennedy, affirmed a district court order requiring California to remedy its longstanding constitutional deficits in prison medical and mental health care by reducing prison crowding.  The order the Supreme Court reviewed requires California’s state prisons to limit prison population to 137.5% of the rated capacity of California’s prisons by the end of 2013; absent construction, that works out to a bit under 116,000 prisoners — about equal to the state prison population in mid-1993.  At its peak in 2007, California’s prisoner total was over 173,000, with prisoners who couldn’t fit in cells packed instead into congregate spaces such as gyms.

This Article explores the legal and political ecosystem in which the Plata order developed and is being implemented.  The result illustrates the complex interplay of institutional reform litigation and political outcomes and processes.  The Article proceeds in four parts.

Part I sets out crucial background how a 1996 anti-prisoners’ rights federal statute, the Prison Litigation Reform Act (PLRA), structures correctional civil rights litigation.  Part II paints the litigation history in the district court and the Supreme Court, focusing on the interaction of court procedure and politics — describing, for example, how the litigation promoted a more explicit, open, and elaborate multiparty bargaining process over prison population and criminal justice policy; and how the focus during trial on public safety actually increased prisoners’ rights advocates’ effectiveness outside of litigation.  It analyzes Governor Jerry Brown’s “realignment” plan — the state’s response to the Plata/Coleman population order, which shrinks the parole population and shortens parole revocation sentence terms, moves some classes of prisoners from state to county custody, and encourages counties to consider non-incarcerative penalties for crime.  Part III looks at one of the key features of the environment in which realignment is being implemented: pre-PLRA jail population court orders, which have been very common in correctional civil rights cases, functioning for decades as county-specific bail and jail sentencing reform mechanisms.  Part IV concludes, by examining the prospects of a litigation-focused response to what I call the “hydra risk” — the very real possibility that court intervention could succeed at chopping the head off of unconstitutional conditions of prison confinement in California, only to cause 58 counties to develop unconstitutional conditions of jail confinement.  Going forward, it will be a huge challenge for prisoners’ rights advocates to find out what is going on in all the scattered county jails, much less to seek remedies for the problems that may be uncovered.  Three types of litigation responses are likely: additional scrutiny of jails in ongoing statewide prison litigation; new jail litigation; and revival of existing but more-or-less orphaned jail cases.

August 23, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Can a plea deal with one murder defendant take death off the table for another?

The question in the title of this post is prompted by this local story from Ohio in which it appears that one defendant is trying to get the death penalty blocked before his trial based on a plea deal purportedly made with a co-defendant.  Here are the particulars:

The judge in the William Inman Sr. murder trial says he'll decide Thursday whether to take the death penalty off the table.  Inman is charged with killing his daughter-in-law, Summer, then dumping her body in a septic tank in 2011.

Defense attorneys are questioning those involved in initial plea negotiations involving Inman's wife, Sandra, for her role in the murder.  Sandra Inman eventually agreed to testify against her husband in exchange for a 15-years-to-life prison sentence.

Inman Sr.'s lawyers say prosecutors' initial deal with Sandra Inman included an assurance that neither she, nor her co-defendants (William Sr. and the couple's son, William Jr.) would face the death penalty.

Prosecutors say that deal was invalidated when Sandra Inman cut an interview short, declined to provide truthful answers, and initially pleaded not-guilty by reason of insanity, before changing her plea to guilty.

A former Sandra Inman attorney, Bill Henderson, testified Monday that he was involved in plea negotiations that included a sentence of 12-years-to-life for Sandra Inman, as well as an assurance that "the state will not pursue the death penalty against the co-defendants."

In cross examination, prosecutors asked Henderson why he would make such a deal, since the prison term is three years less than the 15-years-to-life mandatory murder sentence in the state of Ohio.  Henderson testified that he anticipated the deal would be "tweaked" when the case went to court -- and was then told he breached the deal early on when his client first pleaded not guilty by reason of insanity, instead of guilty to murder.

A jury found William Inman Jr., guilty in June for the murder of his wife; he was sentenced to life in prison with no possibility of parole.  Jury selection in William Sr.'s trial is expected to begin Thursday, after the judge rules on the motion to remove the death penalty from consideration.

Beyond the factual questions of what kind of plea deal might have been put together by the local prosecutors and various defendants in this case, I wonder more broadly about legal questions surrounding whether, when and why a plea deal with one defendant can and should categorically preclude a judge or jury from considering an otherwise lawful sentence for another defendant.

I vaguely recall from my 1L contracts class two decades ago some doctrines about when and how third-party beneficiaries can seek enforcement of a contract between two other parties. But even if basic contract law might enable one defendant to seek to secure a benefit from another defendant's plea deal, I think that such a deal to preclude consideration of a statutorily authorized punishment for a crime could be viewed as void against public policy.

In my view, as a matter of just and effective sentencing policy and practice, it is troublesome enough that defendants and prosecutors often can and will cut (seemingly enforceable) deals intended to revise the applicable legal process and sentencing options for that defendant (e.g., take away appeal rights, limit arguments for departures/variance, etc.). I think it could be even more worrisome if and when defendants and prosecutors could put together enforceable deals to revise the applicable legal process and sentencing options for any number of other defendants.

UPDATE As this new local story now reports, "[a]fter hearing arguments this week, Hocking County Common Pleas Court Judge John T. Wallace this morning denied a defense motion to eliminate death as a possible penalty if William "Bill" Inman is convicted of aggravated murder in a trial beginning Tuesday."

August 23, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, August 22, 2012

"Prosecutorial Administration"

The title of this post is the title of this new paper now available via SSRN authored by Rachel Barkow. Here is the abstract:

It is by now well known that federal prosecutors hold the reins of power in individual federal criminal cases.  They have almost unlimited and unreviewable power to select the charges that will be brought against defendants. Prosecutors have also been a driving force in the political arena for mandatory minimum sentences and new federal criminal laws.

But prosecutorial power over federal criminal justice policy goes deeper still. Because of the structure of the Department of Justice, prosecutors are involved in other areas of criminal justice policymaking.  Indeed, we are living in a time of “prosecutorial administration,” with prosecutors at the helm of every major federal criminal justice matter.

This Article describes the current regime of “prosecutorial administration” and explains why its consequences should concern anyone interested in a rational criminal justice regime that is unbiased in any particular direction.  It focuses on three areas of criminal justice policy -- corrections, clemency, and forensics -- and describes how these matters came under the aegis of the Department without much concern about the conflicts they would create with the Department’s law enforcement mission.  It is a well-established feature of institutional design that agencies with competing mandates will adhere to the dominant one. In the case of the Department of Justice, that dominant mandate is undoubtedly law enforcement and obtaining convictions in particular cases.  As a result, whenever conflicts arise (or appear to arise) between this mission and other functions such as corrections, clemency, or forensic science, the law enforcement interests (as perceived by the Department’s prosecutors) will dominate.

Thus, if decisions about corrections, forensics, and clemency are being made by prosecutors -- and thus through the lens of what would be good for prosecutors and their cases -- it is possible that these decisions are not accounting for what would be good policy overall, taking into account interests other than law enforcement.  Indeed, even if the goal is law enforcement, prosecutors are not well-suited to take into account the long-term goals of law enforcement because they are focused on the short-term pressure of dealing with current cases.

The Article thus turns to the question of how institutional design could help create more of a balanced approach in these areas that is not so tilted to law enforcement concerns.  After making the case that institutional change is feasible in at least some areas, the Article tackles the question of what changes could yield positive results in each of these areas and what tradeoffs they entail.

August 22, 2012 in Clemency and Pardons, Who Sentences? | Permalink | Comments (10) | TrackBack

Effective review of three-strikes initiative battle taking place in California

The Sacramento Bee has this lengthy new article providing an effective overview of the 2012 election season debate over an effort to reform California's three strikes law. The piece is headlined "'Three-strikes' battle returns to fall ballot in California," and here are excerpts:

Proposition 36 gives the state's electorate another opportunity to weigh in on California's 18-year-old "three-strikes" law, the toughest career-criminal sentencing statute in the nation.  Twice in as many decades, voters have sided in favor of a three-strikes law that allows judges to impose a life prison term for offenders who commit a third felony -- no matter how minor -- if they have two previous serious or violent criminal convictions on their records.

Proposition 36 proponents want to change the law to restrict the 25-years-to-life sentences, with some exceptions, to criminals whose third felony was serious or violent; nothing less than a residential burglary would qualify as a strike.

The measure would enable an estimated 3,000 of the 8,873 prisoners serving 25-years-to-life terms in the state as of June 30 to apply for resentencing hearings.  If their motions for new terms are granted, a good number of those 3,000 prisoners could go free.  The Legislative Analyst's Office estimates passage of Proposition 36 could save the state anywhere from $70 million to $90 million a year in reduced prison costs.

The initiative has had huge cash infusions from two sources.  Billionaire financier George Soros, the international hedge fund manager who has contributed millions over the years to change drug laws and other statutes he believes are too harsh, kicked in $500,000, according to the secretary of state's records. David W. Mills, a Stanford law professor and private investment manager, matched and raised the contribution.  Mills, a co-chair of the NAACP's Legal Defense Fund, put in $878,000.  The money Soros and Mills contributed paid for the $1.4 million signature-gathering effort that qualified Proposition 36 for the Nov. 6 ballot.

In an interview, Mills, 65, said his involvement in California's three-strikes law stems from his long-term interest in civil rights.  It is Mills' view that the sentencing measure's "dramatic effect on poor people and African Americans" makes it one of the leading civil rights issues of the day. "The notion I can live in a state in a country where we would send somebody to jail for 25-to-life for stealing a loaf of bread, a pair of gloves, a piece of pizza, for a gram of cocaine, or whatever, to me is incomprehensible," he said.

Opponents of the measure include the California Police Chiefs Association.  Sacramento Police Chief Rick Braziel signed the ballot rebuttal argument against Proposition 36 in his capacity as president of the California Peace Officers Association, arguing that thousands of criminals would be released from prison.  Top victims' rights organizations, such as Crime Victims United of California, also have lined up to fight the measure....

Mike Reynolds, the Fresno photographer whose daughter was murdered by a repeat offender, has served as guardian of the three-strikes law since its 1994 birth.  In an interview, Reynolds noted steep declines in the California crime rate in the 18 years that the law has been in effect.  He wonders why anyone would want to change it, and is angry at the thought of 3,000 career criminals getting out of prison.

"One hundred percent of them would have at least two prior serious or violent convictions," Reynolds said.  "Make no mistake.  We're talking about the bad boys.  These are the guys who are responsible for the worst of our crimes, the most active by definition.  And you want to put them back on the streets and not expect them to come back with new convictions?"

Another Proposition 36 opponent, Sacramento County District Attorney Jan Scully, sneers at the suggestion that the three-strikes change would save taxpayers' money by releasing people from prison.  "This assumes they're not going to commit any more crimes," Scully said. "Trust me, they are.  Then we'll have to prosecute them again, so they'll be taking up just as many resources as before, except they'll have new victims in their path."

August 22, 2012 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, August 21, 2012

Split Ninth Circuit faults district judge for failing to ensure defendant was competent at sentencing

Today the Ninth Circuit handed down an interesting split panel decision on an interesting sentencing issue in US v. Dreyer, No. 10-50631 (9th Cir. Aug. 21, 2012) (available here). Here is how the majority opinion (per Judge Reinhardt) starts:

At the age of 63, Joel Dreyer experienced the onset of frontotemporal dementia, a degenerative brain disorder that causes changes in personality and behavior, impairs social interactions, and causes disinhibition and a loss of insight and impulse control. He was a practicing psychiatrist at the time. From the age of 66 to 69, despite having no criminal history, Dreyer participated in a conspiracy to distribute controlled substances, and in December 2010, at the age of 73, he was sentenced to ten years imprisonment after he pleaded guilty to charges related to that conspiracy.

At the sentencing hearing, the district court was provided with three expert reports: all three diagnosed Dreyer with frontotemporal dementia and noted that he exhibited textbook manifestations of the condition since its apparent onset in 2001, three years before his participation in the controlled substance conspiracy, and that his symptoms persisted into the present. Dreyer did not allocute at sentencing and defense counsel informed the court that his client would not address it due to the dementia’s effect on his behavior. Defense counsel did not move for a competency hearing and the district court did not order a hearing sua sponte. The court sentenced Dreyer to 120 months. Dreyer appeals his sentence, contending that the district court erred by failing sua sponte to order an evidentiary hearing to determine his competency at the time of sentencing.

We hold that the record before the district court at sentencing was sufficient to cause a genuine doubt as to the defendant’s competence and that the court committed plain error by failing to order a hearing sua sponte. Accordingly, we vacate Dreyer’s sentence and remand for the district court to evaluate Dreyer’s competency on the basis of an evidentiary hearing. In light of the additional circumstances of this case, we also direct that all further proceedings be assigned to a new judge on remand.

Here is how the lengthy dissent (per Judge Callahan) gets started:

I respectfully dissent. I cannot agree that it was plain error for the district court not to sua sponte order a competency hearing after Joel Dreyer pleaded guilty and received the benefit of his plea agreement but before sentencing. Dreyer was represented by competent counsel and had been examined by a number of doctors. Although all agreed that he suffered from frontotemporal dementia (“FTD”), none opined that Dreyer was not competent to participate in his sentencing. Moreover, although Dreyer chose not to allocute, he was responsive when the district judge addressed him personally, stating that he respected the judge and appreciated her comments. Even if the trial judge might have issued a sua sponte order for further psychiatric and medical evaluations, failure to do so was not plain error. Moreover, the majority’s unrequested reassignment of the case on remand to another judge is contrary to our norm of remanding to the original sentencing judge and is unsupported in fact or law.

August 21, 2012 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

New plea deal in place for child porn defendant after federal judge rejected prior deal with appeal waiver

This Denver Post article, headlined "Colorado child porn suspect pleads guilty on second try," provides an interesting follow-up to a federal sentencing story about plea deals and appeal waivers.  Here are the new details:

A child pornography suspect who reached a plea deal with federal prosecutors only to see that agreement rejected by the judge has finally pleaded guilty after striking a new deal.

Earlier this month, Timothy Vanderwerff pleaded guilty to one count of receipt of child pornography.  As part of the deal, prosecutors agreed not to seek more than 12 years in prison for Vanderwerff, though he could receive as much as 20 years or as little as 5 when formally sentenced.

Under his first deal, Vanderwerff would have pleaded guilty to the less-serious charge of possession of child pornography and would have likely faced no more than 10 years in prison.  That deal, though, also contained a waiver of Vanderwerff's right to appeal, except in limited circumstances.

It was that last detail that tripped up Senior U.S. District Judge John Kane, who rejected the deal in June by explaining that, "Indiscriminate acceptance of appellate waivers undermines the ability of appellate courts to ensure the constitutional validity of convictions and to maintain consistency and reasonableness in sentencing decisions."

Appellate waivers have become commonplace in federal plea bargains, and both sides in the case argued that the waiver was a valuable bargaining chip in negotiations.  But Kane said neither side gave him enough information to determine whether the waiver was appropriate. He wrote it is questionable to sacrifice "constitutional rights at the altar of efficiency."

Vanderwerff's attorney soon appealed the plea-deal rejection, arguing that the decision put Vanderwerff in a tight spot. After Kane's ruling, federal public defender Edward Harris wrote in a case filing, prosecutors refused to offer Vanderwerff the same deal minus an appellate waiver, instead pushing a much tougher bargain. The plea agreement Vanderwerff ultimately signed does not contain an appellate waiver.

Prior post on the Vanderwerff case and a few older appeal waiver posts:

August 21, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Monday, August 20, 2012

Federal magistrate orders(!?) Minnesota to convene Task Force to reform state's sex offender civil commitment

I just came across this interesting local story coming out of Minnesota last week, headlined "Minnesota must change sex offender program, judge orders." The story's report on a recent judicial order concerning Minnesota's civil commitment program strikes me as notable both as a matter of substance and procedure. Here are the details:

A federal judge has ordered Minnesota to reform its system for civilly committing and confining paroled sex offenders to indefinite treatment, a controversial practice that has drawn international criticism because almost no one has gotten out.

Chief U.S. Magistrate Judge Arthur Boylan on Wednesday ordered state Human Services Commissioner Lucinda Jesson to convene a task force of experts to recommend options less restrictive than the state's prison-like treatment centers and to suggest changes in how offenders are selected for civil commitment, as well as how they might earn release from the program.  The order came during pretrial discussions in a class-action lawsuit brought by patients who argued that their indefinite detention after completing their prison sentences is unconstitutional.

Critics of the Minnesota Sex Offender Program (MSOP) hailed Boylan's order as an unprecedented and significant step toward changing a system that has been a magnet for controversy since its creation in 1994 with the construction in Moose Lake of a sprawling campus surrounded by razor wire.

The program was created to treat small numbers of the state's worst sex criminals who had completed their prison sentences but were deemed too dangerous to release. But the 2003 killing of college student Dru Sjodin by a rapist newly released from prison prompted a surge of commitments of all types of sex criminals, from rapists to nonviolent molesters. The state went from committing an average of 15 per year before 2003 to 50 per year after that pivotal year.

The program's population has soared to more than 600 -- the most sex-offender civil commitments per capita in the country. Only two have won provisional discharge. One of those, Ray Hubbard, was pulled back into a treatment lockup because a psychiatrist thought he might reoffend. He died shortly thereafter....

Former state Sen. Don Betzold, chief author of the 1994 Sexually Dangerous Persons Act that created the current civil commitment system and MSOP, said the courts have repeatedly upheld the law as constitutional because judges believed the confinement was for treatment and that the public has been reassured that a subset of dangerous sex offenders are not free to strike again. However, even Betzold, a lawyer, said the lack of releases is a problem because it invites the conclusion that the program's only purpose is confinement....

The lead attorney for the patients, Dan Gustafson, called Boylan's order "a significant step" toward making the MSOP more effective and fair. "If you're going to commit these folks, you have to give them legitimate treatment and the legitimate opportunity to get out," said Gustafson, adding that unless the state reforms the system, it risks that the courts will declare the program unconstitutional and order releases, or mandate program improvements more expensive than the state can afford....

Boylan ordered that the state try to pack the task force with experts in the civil commitment system and the MSOP, including current or former legislators, prosecutors, judges, police, attorneys for patients, and state and local officials who deal with offenders....

[S]tate Rep. Tony Cornish, R-Good Thunder, who has studied the MSOP and civil commitment system as chair of the House committee on Public Safety and Crime Prevention Policy and Finance, ... said that when he and other legislators examined issues with the program this year, they found "there was no appetite in the Legislature for letting anyone out. They'd rather spend millions of dollars keeping people locked up than take the chance of something bad happening."

Now that a federal judge has ordered the state to look at other alternatives, policymakers may have to make decisions they find difficult to stomach, Cornish said, although the court mandate also may give them more of the political cover they need to make changes. "The die has been cast," Cornish said. "Now we have to find a blend that will satisfy the court but still protect the public."

Based on this press account, it is hard to tell if the order in this case from Chief U.S. Magistrate Judge Arthur Boylan is part of a consent agreement or some other negotiated settlement of the on-going lawsuit.  Whatever the formalities, I think it is unusual (and perhaps even inappropriate) for a federal magistrate judge to "order" a state official "convene a task force of experts to recommend" changes to a program which may be constitutional and to further demand that this task force be packed "with experts in the civil commitment system and the MSOP, including current or former legislators, prosecutors, judges, police, attorneys for patients, and state and local officials who deal with offenders." 

I am all for expert task forces to examine and address seemingly problematic areas of a state's criminal justice system.  (Indeed, as noted here, I am a member of just such a task force in Ohio.)  That said, I have never heard of a federal judge ordering the creation and staffing of such a task force as part of the adjudication of a constitutional challenge to a state criminal justice practice.  Perhaps this kind of order is not unusual or inappropriate for this kind of litigation, but it sure seems noteworthy all the same.

August 20, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

California legislature passes intriguiging and novel resentencing bill for juve lifers

As reported in this local piece, which carries the seemingly inaccurate headline "California Senate sends Jerry Brown bill to parole some juvenile murderers," it appears that California's Governor now has on his desk a novel bill to permit some serious juvenile offenders to seek resentencings.  Here are the (somewhat unclear) details from this press account:

California lawmakers are sending Gov. Jerry Brown a bill that would allow some juvenile murderers the chance to get out of prison on parole. The state Senate approved Senate Bill 9 on a 21-16 vote today, the bare minimum necessary for it to clear its last legislative hurdle. Brown has until the end of September to act on it. [As reported in this other press account, the bill "was approved by the Assembly on Aug. 16 on a 41 to 34 vote." 

The bill by Democratic Sen. Leland Yee of San Francisco would allow some murderers to petition for a hearing to have their sentence changed to 25 years to life, allowing them to later petition for parole. Several conditions would apply: They would have to have been under 18 when they committed a murder that got them life in prison with no possibility of parole. They also would have to have already served at least 15 years of their sentence, and wouldn't be released until they had served at least 25 years....

Some criminals would not be eligible -- those with a history of violence before the murder conviction, those who had tortured their victims, and those who had killed a firefighter or law enforcement official.  [This AP story reports there are 309 offenders California serving LWOP for juvenile crimes, but does not suggestion how many might be able to benefit from SB9]

Yee said the bill would only apply when offenders showed remorse and when "it is a very clear case where an individual has made amends and demonstrated that they are not going to re-offend."...

"It is absolutely outrageous that were going to release these little psychopaths out into the streets to murder again," said Sen. Joel Anderson, a Republican from Alpine.

The full text of what appears to be the passed version of this bill is available at this link.  The bill text shows it was first introducted back in December 2010, and it includes a number of intricate provisions that make it difficult for me to assess quickly whether and how many juvenile lifers in California are likely to benefit from this novel piece of legislation if (and when?) it becomes law.

I would be especially grateful to hear from any folks working on these issues in California concerning whether enactment of this bill could be a very big deal.  I also would love to hear opinions from anyone who can sort through just how this new law is suppose to operate and can assess whether this intriguing resentencing rule is a sensible way for a state to consider reconsindering juve LWOP sentences.

August 20, 2012 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

"Colorado marijuana legalization among crucial issues in state"

The title of this post is the headline of this Politico article, which reinforces my view (discussed here) that the presidential candidates will have a hard time dodging all discussion of federal pot prohibition and state pot policy reforms this election cycle.  Here are excerpts:

With the first presidential debate in Denver less than six weeks away, strategists and academics intimately familiar with Colorado gathered in Washington, D.C., to discuss issues particular to the vital swing state, such as marijuana decriminalization, “personhood” votes, the death penalty, and the influence of rising Democratic star Gov. John Hickenlooper.

In a panel sponsored by the University of Denver and moderated by former White House spokeswoman Dee Dee Myers, participants said the Aurora, Colo., shooting failed to spark efforts at gun control, but instead elevated talk of the death penalty, an issue that hasn’t received much national attention during this campaign cycle.

“Gun sales went up in Denver the week of the shooting, so it doesn’t seem to have been the impetus for a conversation on gun control. It has generated a fair amount of discussion about the death penalty however,” said Dr. Sam Kamin, a professor of law at the University of Denver.

The University of Denver will be the site of the first 2012 presidential debate between President Barack Obama and presumptive GOP presidential nominee Mitt Romney, to be held on Oct. 3....

And while the issues like the economy, Medicare and the deficit will no doubt be addressed during the debate, panelists took the time to address the specific policies making waves in the state.

At the same time as voters in Colorado head to the polls to cast a vote for president, they will also be addressing ballot questions on abortion and “personhood,” as well as the decriminalization of marijuana — so it is likely that the two presidential candidates might be asked about them.

The marijuana issue “is hugely popular with younger voters. … If they come out strongly and the Obama campaign doesn’t do anything to antagonize them on this issue, they could have a real impact,” Kamin said. “There’s a huge push online to get youth voters energized around that proposition, those are the exact same voters that had a lot of enthusiasm for the president four years ago.” Dee Dee Myers pointed out that Colorado is a state with more medical marijuana dispensaries than Starbucks locations.

Some recent and older related posts on pot policies and politics: 

August 20, 2012 in Campaign 2012 and sentencing issues , Elections and sentencing issues in political debates, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

"Do Prosecutors Have Too Much Power?"

The title of this post is the headline of this new New York Times segment of its series "Room for Debate."  The NY Times brought together five leading lights to comment on this question (all of whom appear to supply variations on the answer "Yes").  Here is how the segment sets up the debate, followed by links to the must-read pieces that provide five different answers to the question:

A U.S. district judge in Denver recently rejected a plea bargain in a child pornography case because the defendant had agreed to waive his right to appeal. The judge said such a deal would undermine the purpose of appellate courts. (He later accepted a plea bargain without that stipulation.)

Legal observers — including the editorial board of The New York Times — focused on the judge’s concern as a sign that plea bargains have gotten out of control and in the process given prosecutors too much power.  When one party decides whether to bring charges, what charges to bring and whether to offer a plea bargain, is the justice system lacking checks and balances?

August 20, 2012 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Sunday, August 19, 2012

Sentencing at heart of research on "How to Move a Mind"

This week's New York Times Magazine has this must-read article discussing social science research on how opinions change.  (The hard copy delivery to my door carries the summary headline "How to Move a Mind; Changing a strongly held belief has little to do with actual facts." The on-line version here carries a different headline.)  The piece should be read by all lawyers and public policy advocates, and here are excerpts that include reports on notable research involving sentencing issues:

Scientists have been studying attitudes and preferences for more than a century; those topics are bound to the origins of social psychology itself....

In the last decade, psychologists have focused increasing attention on moral attitudes. Jonathan Haidt, professor of psychology at the Stern School of Business at New York University and author of “The Righteous Mind,” told me that researchers have been especially interested in the way emotions and attitudes interact. Moral attitudes are especially difficult to change, Haidt said, because the emotions attached to those preferences largely define who we are. “Certain beliefs are so important for a society or group that they become part of how you prove your identity,” he said. “It’s as though we circle around these ideas. It’s how we become one.”

We tend to side with people who share our identity — even when the facts disagree — and calling someone a flip-flopper is a way of calling them morally suspect, as if those who change their minds are in some way being unfaithful to their group. This is nonsense, of course. People change their minds all the time, even about very important matters. It’s just hard to do when the stakes are high. That’s why marshaling data and making rational arguments won’t work. Whether you’re changing your own mind or someone else’s, the key is emotional, persuasive storytelling.

In 2006, researchers from Ohio State University and Colorado State University demonstrated that a well-written TV drama can change the political opinions of college students. They split 178 students into two groups. One watched a crime show that told a persuasive story about the value of the death penalty. The other group watched a different, unrelated drama. Afterward, both groups were interviewed about their personal beliefs and their opinions on the death penalty. The students who watched the crime show were more likely to support the death penalty. In fact, support for the death penalty was about the same whether those students self-identified as liberal or conservative. That wasn’t true among the students who watched the other show. There, political ideology strongly predicted their opinions on the death penalty.

Timothy Wilson is a psychology professor at the University of Virginia and the author of the book “Redirect,” about how we change our minds and behavior. Stories are more powerful than data, Wilson says, because they allow individuals to identify emotionally with ideas and people they might otherwise see as “outsiders.”...

In some cases — if we want to think of ourselves as thoughtful and open-minded — we can adopt identities that actually encourage flip-flopping. This is why juries function, and it’s what places pressure on scientists to form opinions based on reliable data. In 2009, the Oregon Legislature mandated the creation of the Oregon Citizens’ Initiative Review, panels made up of random residents assigned to review and assess ballot initiatives in “citizens’ statements.” The panelists know they’re expected to base their opinions on hard evidence, and this expectation becomes part of their temporary identity.

Under those conditions, says John Gastil, professor of communication arts and sciences at Penn State, facts suddenly matter. He points to Measure 73, a widely popular mandatory sentencing initiative, which the citizens’ panel voted against, 21 to 3. The panelists felt obligated to consider the measure more carefully than they otherwise would have, Gastil says, so they noted the high costs and thought about people who might be unfairly punished. Only a minority of voters knew the panel existed, so the measure still passed — though by a smaller margin than expected. In a study he performed on the public response to Measure 73, Gastil found that the panel’s opinion significantly changed the minds of those people who read its findings. “You got a shift from two-thirds in favor to two-thirds against just by reading the report,” Gastil says.

August 19, 2012 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (4) | TrackBack

Saturday, August 18, 2012

Intriguing jury sentence in Texas for female teacher having group sex with (adult) students

There are so many intriguing elements to this local sentencing story out of Texas, I am not sure which part most merits commentary.  Here are the basics:

A former Kennedale High School teacher was sentenced to five years in prison Friday evening after Tarrant County prosecutors asked jurors to show moral outrage that she treated students like a "buffet of possible sexual partners."

Earlier Friday, the jury of seven men and five women deliberated less than an hour before convicting Brittni Colleps, 28, of 16 felony counts of improper relationship between an educator and student.   According to testimony, Colleps, a married mother of three, had sex with five male students, four of them 18 and one 19, several times at her Arlington home in spring 2011.  The jury was shown sexually explicit text messages and watched a cellphone video of Colleps having group sex with four of the students.

In the sentencing phase, her family, her attorneys and one of the students asked for the minimum sentence of probation, saying Colleps has been punished enough.  She needed to be home with her children -- girls ages 8 and 6 and a boy age 5 -- all of whom have acute asthma and allergies, they said....

Prosecutors asked for the maximum of 20 years on each count and a $10,000 fine.  "You don't have a crime captured on videotape very often, and that is what you have here," prosecutor Elizabeth Beach said.

She was graphic in reminding jurors of the sexual encounters.  The students did not wear condoms on the night the video was made, Beach said.  She described the amount of body fluids and possible diseases exchanged during the night as "staggering and it is disgusting. It's completely disgusting."...

The jury deliberated the sentence for a little less than three hours.  Although Colleps was technically given five years on each of 16 counts, the sentences will run concurrently.

Defense attorney Lex Johnston said Colleps must serve a year to 2.5 years before she is eligible for parole. Johnston, who worked with Cynthia Fitch, said:  "I think the jury will probably regret what they did. Nothing we can do about it.  The jury spoke.  We have some legal issues to work on later on down the road and we'll see what happens." He said the sentence sends the message that Texas is "too conservative for our own good." The Supreme Court will eventually tell Texas to back out of people's lives and bedrooms, he said.

"These were not boys. These were not children. These were grown men who connived, conspired, worked with each other to be with this woman whose husband was away serving the military," Johnston said.

Beach and co-prosecutor Tim Rodgers called the verdict "very fair." Prosecutors never offered Colleps a plea bargain because, Beach said, "we wanted a Tarrant County jury to evaluate and as the moral conscience of the community say this is what we think of this kind of behavior and we got a very clear message from the jury."...

Christopher Colleps was serving in the military outside the area when the crimes occurred. Frequently breaking into tears, he acknowledged that he and his wife, who have been married for nine years, had engaged in group sex with another adult couple while living in Louisiana.

The last year has been "pretty rough," he said, but he will stand by his wife. "I feel like what she did was morally and ethically wrong. I feel like she has hurt me and my children, but I feel that's between me and her and God."...

According to a news release from the Tarrant County district attorney's office, at least five cases of improper relationship between an educator and a student have been prosecuted in Tarrant County since the law was enacted in 2003.

I find two aspects of prosecutorial discretion especially notable here:  (1) though it appears no offense facts were really in dispute, prosecutors apparently did not want to pursue any plea deal because they wanted a jury to send a message via sentencing; and (2) the prosecutors asked the jury to send a message through the most severe possible prison term of 20 years imprisonment.

I am generally supportive of decision (1) by the prosecutors here, especially because it seems hard to predict ex ante just what community sentiment might be on whether and how much to punish this teacher for group sex with her (adult) students.  But I am generally critical of decision (2) by the prosecutors here, especially because a 20-year term would likely mean this offender would be in prison for much of the prime of her life (and her kids' entire childhoods) despite posing little or no real risk to the community. 

I suspect prosecutors in this case requested a 20-year term not because they considered such a long term necessary, but rather because they wanted to push the jury to impose some significant prison time.  But I always find very troublesome such an inflationary approach to sentencing advocacy coming from prosecutors, especially in a case like this in which we are dealing with consentual sexual encounters among adults.

August 18, 2012 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (54) | TrackBack

New poll numbers (and polling techniques) surrounding California DP repeal initiative

This local California story, headlined "Poll says death penalty support rises after mass shootings," has interesting poll data and interesting debates concerning the poll data on California's death penalty repeal initiative.  Here are details:

According to one set of polls, support for California’s death penalty has risen — and support for an initiative to repeal it has plummeted – since the mass killings at a theater in Colorado.

A survey by the California Business Roundtable and the Pepperdine School of Public Policy, released on July 19, found that 45.5 percent of the respondents favored Proposition 34 and 46.7 percent opposed it — a statistical tie, since the difference was within the poll’s margin of error. Prop. 34 on the November ballot would abolish the death penalty and replace it with life in prison without the possibility of parole.

A day after the poll came out, a gunman killed 12 people and wounded 58 at a theater in Aurora, Colo. On Aug. 5, another gunman killed six and wounded three at a Sikh temple in Oak Creek, Wis., before being shot by a police officer. The gunman, white supremacist Wade Michael Page, then took his own life.

The first Business Roundtable-Pepperdine poll after the Aurora massacre was released Aug. 2. It found 35.9 percent of respondents in favor of Prop. 34 and 55.7 percent opposed. The latest poll, released Thursday, found 38.2 percent in favor and 52.2 percent opposed. The polling organization said its sample for that survey consisted of 811 Californians, contacted between Sunday and Wednesday, who described themselves as likely voters. The margin of error was 3.4 percent.

It’s impossible to say how much the results were affected by the mass shootings or by other events, like Jared Lee Loughner’s negotiated guilty plea Aug. 7 to serve a life term for the January 2011 shootings in Tucson that killed six people and wounded 13, including Congresswoman Gabrielle Giffords. It certainly seems plausible that news of a mass murder would evoke an emotional response and support for greater punishment.

The director of the Yes-on-34 campaign isn’t buying it. Natasha Minsker called the Business Roundtable-Pepperdine polling “very unreliable” and noted that it was conducted online, in contrast to the standard method of questioning a selected group of respondents over the telephone.

It’s hard to keep tabs on the people who take part in an Internet poll, Minsker said, and this one seems particularly questionable: It showed Prop. 34 doing better in conservative San Diego County than in the liberal Bay Area. She said phone polls by her campaign organization, and private polls she’s aware of, show Prop. 34 leading, though she didn’t give precise numbers.

But the director of the Business Roundtable poll said online surveys, though relatively new, are at least as reliable as telephone polls. Chris Condon, research director for a company called M4 Strategies, said respondents are chosen carefully to reflect the demographics of California’s voting population and checked to make sure they’re who they say they are. They’re also paid a small sum as an incentive. Condon said he’s compared some past results with phone polling on the same issues and found they were pretty close. Although the online surveys obviously leave out anyone who lacks a computer, Condon said phone polls likewise omit people without land lines, and also have to rely on the pollster’s oral description of each ballot measure. Participants in the online polls, Condon said, see the measure’s title and summary and can open a link to the ballot arguments. “In a sense, we’re closer to how people vote,” he said....

Whatever the method, Mitch Zak, spokesman for the No-on-34 campaign, said the latest poll “highlights what folks have known all along: Californians strongly support the death penalty.”

August 18, 2012 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (17) | TrackBack

Friday, August 17, 2012

Is it really true that "conservatives and liberals are increasingly united" on criminal justice reform?

The question in the title of this post is prompted by this recent op-ed in the Washington Times authored by Alan Mollohan and David Keene.  The piece is headlined "Left and right agree on criminal justice reforms; Congress should move with bipartisan consensus," and here are excerpts:

While Americans seem to be sharply divided along partisan lines when it comes to important domestic policy issues — take health care, immigration or the national debt, for example — in at least one area of national importance, conservatives and liberals are increasingly united: criminal justice reform.

With only 5 percent of the world’s population, America incarcerates 25 percent of the world’s jail and prison population, imprisoning individuals at a rate five times higher than comparable Western, industrialized nations.  During the upcoming fiscal year, the federal government would spend nearly $7 billion, a nearly $300 million increase from this year, under the president’s budget proposal to house prisoners and very little, comparatively, on investments to curb the deluge of prisoners entering the system.

Policymakers and opinion leaders from both sides of the aisle recognize that this rate of incarceration is not sustainable or wise and are increasingly rallying around the same common-sense solutions to improve public safety while saving money.  Prominent conservative leaders such as former Florida Gov. Jeb Bush, former Reagan administration Attorney General Edwin Meese III, and President of Americans for Tax Reform Grover Norquist all have called for an overhaul of the criminal justice regime.

Despite the growing bipartisan consensus in support of criminal justice reform, the federal government has done little in recent years to address the pressing issues of growing incarceration rates, prison overcrowding and recidivism....  The Senate Judiciary Committee recently held a hearing to address rising prison costs.  It’s promising that Congress is talking about the issues, but the time for talk is over — it is time for Congress to act, and it should look to states for the road map.

In several states, legislators have crossed the aisle to build consensus and enact reforms on a bipartisan basis, easily outpacing the federal government.  In tough-on-crime Texas, the Republican chairman of the state House Corrections Committee worked with the Democratic chairman of the Senate Criminal Justice Committee to shepherd through legislation in 2007 that increased drug treatment capacity and expanded diversion from prison for nonviolent, low-level offenders.  Similarly, the Georgia legislature unanimously passed a bill this year that diverts low-level offenders away from prison and, when appropriate, into drug treatment, reserving prison for dangerous offenders.  States such as Kansas, South Carolina and Ohio have enacted similar legislation.

Bipartisan reforms at the state level have proved to be socially and economically beneficial.... Instead of throwing good money after bad, Congress should follow the example of these states and take steps to curb federal prison population growth. Congress can start with proven solutions that reduce recidivism and give prisoners a second chance. One example is increasing the number of days that a prisoner can earn off his sentence for good behavior, called “good time credit.”  Congress also should implement programming within prisons that would increase the likelihood of prisoners’ success after release, such as more drug treatment programming, educational opportunities and vocational training, all of which have proved to be effective at reducing recidivism....

Congress also should consider who is incarcerated in federal prisons. Sensible people agree that violent criminals belong behind bars, but the reverse is often true as well — many low-level, nonviolent offenders do not belong behind bars.  The increased use of diversion programs, probation and other prison alternatives, all of which many states have successfully employed, should be systematically implemented by the federal government.

At a time when almost every issue seems to bitterly divide Democrats and Republicans, reforming our flawed criminal justice policies has produced consensus rather than division across our nation.  Congress ought to take advantage of this political consensus to develop and enact practical yet effective solutions and embrace criminal justice reform.

I am very supportive of the themes and the specific recommendations in this op-ed.  But, as even the most casual reader of this blog's comments likely knows, there still seems good reason to question the assertion that proposals to reform "our flawed criminal justice policies" tend to produce "consensus rather than division across our nation." 

Most critically, while a good number of prominent conservative leaders formerly in power have signed joined the Right on Crime movement, we are still waiting for a prominent conservative leader currently in power (other than perhaps Ron Paul) to champion these issues and causes.  Indeed, the Obama Justice Department lately been urging Congress to increase federal good-time credit and to create earned-time programming in an effort to reduce the size and growth of the federal prison population.  My understanding is that Republicans now in power in the House of Representatives will not even allow the most modest of proposed federal reforms to move forward.

As I have said more than a few times on this blog, I think it could be politically shrewd as well as inspiring if any conservative leaders now on the campaign train would start talking up these issues.  In particular, given Mitt Romney's selection of House budget guru Paul Ryan as his Republican ticket running mate, there could and should be some serious discussion of the costs and benefits of the federal prison population (which, according to the latest BOP weekly population report (available here),  now has 218, 261 federal prisoners).

A few recent related posts:

August 17, 2012 in Who Sentences? | Permalink | Comments (9) | TrackBack

Thursday, August 16, 2012

New (curious? useful? suspect?) study on hypotheticals sentencing results and neurobiological evidence

This new New York Times article, headlined "Brain Evidence Sways Sentencing in Study of Judges," provides a lengthy discussion of this newly published research in Science exploring the (hypothetical) sentencing impact of brain science evidence when presented to judges.  Here are excerpts from the Times article, with one particular aspect of the study highlighted for dicussion:

Judges who learned that a convicted assailant was genetically predisposed to violence imposed lighter sentences in a hypothetical case than they otherwise would have, researchers reported on Thursday, in the most rigorous study to date of how behavioral biology can sway judicial decisions.

The findings, published in the journal Science, are likely to accelerate the use of brain science in legal proceedings, experts said, and to intensify a long-running debate about its relevance. Courts have increasingly admitted such evidence — brain scans, mostly, as well as genetic analyses — though many experts say the science is still too primitive to inform legal decisions.  Defense lawyers now commonly introduce brain scans of convicted clients as mitigating evidence in appeals of death sentences, experts said.

Previous studies of how such evidence affects legal decisions are scarce and their results mixed....  The new experiment focused on sentencing by judges, not jury verdicts.  It found that neurobiological evidence reduced judges’ sentences by an average of about 7 percent for a fictional defendant convicted of battery and identified as a psychopath.

“What’s path-breaking about this paper is that it both isolates, as well as one can, the effects of biological testimony on outcomes and it also does this within a sample of the real-world decision makers, the judges themselves,” said Owen D. Jones, a professor of law at Vanderbilt University and director of the MacArthur Foundation Research Network on Law and Neuroscience.  “This moves our understanding forward considerably.”

Dr. Jones and other experts cautioned that the effect might not apply broadly to other kinds of criminal defendants.  It may also play out differently in jury trials.  But they said that the findings were convincing and plausible.

In the study, three researchers at the University of Utah tracked down 181 state judges from 19 states who agreed to read a fictional case file and assign a sentence to an offender, “Jonathan Donahue,” convicted of beating a restaurant manager senseless with the butt of a gun.  All of the judges learned in their files that Mr. Donahue had been identified as a psychopath based on a standard interview — that is, he had a history of aggressive acts without showing empathy.

The case files distributed to the judges were identical, except that half included testimony from a scientist described as “a neurobiologist and renowned expert on the causes of psychopathy,” who said that the defendant had inherited a gene linked to violent, aggressive behavior.  This testimony described how the gene variant altered the development of brain areas that generate and manage emotion....

The judges who read this testimony gave Mr. Donahue sentences that ranged from one to 41 years in prison, a number that varied with state guidelines.  But the average was 13 years — a full year less than the average sentence issued by the judges who had not seen the testimony about genetics and the brain.

In interviews about their decisions, the judges said that a crime of aggravated battery like this one normally carried a sentence of nine years, on average, and 15 years if the defendant was identified as a psychopath, the researchers found.  “But then those who read about the biological mechanism subtracted a year, as if to say, ‘This guy is really dangerous and scary, and we should treat him as such, but the biological evidence suggests that we can’t hold him as responsible for the behavior,’ ” said James Tabery, an assistant professor of philosophy at Utah. He wrote the study with Lisa G. Aspinwall, a psychologist, and Teneille R. Brown, an associate professor in the university’s school of law....

This mixed result — added punishment for the defendant’s being identified as a psychopath, tempered by empathy for his having a possible genetic predisposition — provides a good illustration of what legal researchers call the double-edged sword of biobehavioral evidence.  On one hand, a biological predisposition suggests that a person is likely to be dangerous in the future and should get a longer sentence; on the other, it implies a lower threshold of responsibility. The evidence could cut either way, depending on the judge....

The Supreme Court has been fairly inclusive in what it considers relevant to sentencing, said Dr. Brown, of the Utah law school, so the likelihood is that courts will see much more neurobiological evidence in the future, not less. And the interpretation of that evidence is, like much else, subject to cultural trends as well as to the law. “Our study found that this evidence went in favor of the defense,” Dr. Brown said, “but you can imagine the exact same evidence used for different purposes, shifting back to the prosecution.”

The researchers involved in this study (as well as the reports now about it) are obviously focused on the impact that case-file testimony about genetics and the brain had on the average sentencing outcome.  But I am much more intrigued, and much more troubled, by some other findings in this study based on what is highlighted above.  Specifically, I find most telling and most notable that the proposed sentences for this hypothetical case of aggravated battery ranged from 1 to 41 years and that simply adding the (unscientific?) label "psychopath" apparently increased sentences over 60%. 

Most importantly, I think it is critical to consider this study and all its findings with a large grain of salt.  According to this discussion of the research in Science, the studied "sentencings" were not only of a hypothetical denfendant on a paper record, but the entire study was "web-based."  Though we may be able to learn something about judges' sentencing instincts from these kinds of faux, web-based inquiries, the absence of a real defendant and real lawyers making real arguments in an effort to impact a real sentence makes me cautious about drawing many real-world conclusions from this study.

August 16, 2012 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

"What is the fairest way for Pa. to deal with juvenile lifers petitioning for resentencing?"

The question in the title of this post comes from this local piece from Pennsylvania.  Along with this companion piece, which is headlined "Pennsylvania is battleground for implementing Supreme Court ruling on young lifers," the report does a nice job spotlighting the challenges facing the Keystone State in the wake of the Supreme Court's work in Miller.  Here is an excerpt from the piece which sets out some additional questions concerning which I am interested in comments:

Pennsylvania has more prisoners who were sentenced to life without parole as minors than any other state — about 500 — and the least amount of time to deal with the flood of resentencing petitions.  Under existing state law, those prisoners have 60 days to re-open their cases, while some states have as long as a year.

If the decision is to work retroactively, which is not at all clear yet, it could mean a lot of potential resentencing hearings and a lot of unhappiness dredged up for the families of murder victims.  What is the fairest way of dealing with this?

Iowa's Gov. Terry Branstad sidestepped the issue in July by commuting the life sentences of 38 juvenile offenders and making them eligible for parole after 60 years.  The action seems to be an attempt to protect victims' families, who would be forced to sit through parole hearings if lifers are granted new sentences.  He eliminated that possibility and, in going against the spirit of the Supreme Court decision, sparked criticism and legal challenges.

Do you think individual prisoners should be entitled to a resentencing hearing, or is this an unfair burden on Pennsylvania's legal system?

Speaking of unfair — should victims' families be forced to reopen old wounds with more legal proceedings?

Would you support a blanket solution like Branstad's (which, as far as we know, is not on the table in Pa.), or do you think his disregard for individual cases was unfair?

August 16, 2012 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Texas eager to (and right to) brag about its "smart on crime" parole reforms

Texas paroleThis new Houston Chronicle piece, headlined "Texas says rise in paroles gives state bragging rights: Officials say reforms are 'smart on crime' and save money," provides a lengthy report on the successes Texas officials can and should claim have flowed from its recent criminal justice reform efforts. Here is how the interesting piece starts and ends:

Texas continues a steady march away from its Old West image of being tough on crime to one that state leaders now call "smart on crime" and even fiscally "right on crime." Nothing makes that more apparent than the Texas Board of Pardons and Parole's newly released bragging rights: More prisoners were paroled this past fiscal year than any other year in the past decade, and fewer parolees are being sent back.

The board's report this week boasts 24,342 offenders were approved for parole from Sept. 1, 2010, to Aug. 31, 2011. This represents 31 percent of all who applied and an approval rate that is six percentage points higher than 10 years ago.

At the same time, the number carted back to prison this past fiscal year after their parole was revoked plummeted by 44 percent from a high of 11,374 in 2004.

Instead of fearing accusations of appearing too lenient, state authorities are smiling. "We are pleased with our continuing increase in granting parole," said Rissie Owens, chairwoman of the state's pardons and parole board. "The use of our parole guidelines to assess the likelihood of a successful parole outcome has been cited as a national model for its positive impact on returning more offenders to productive lives."

The Association of Paroling Authorities International has praised Texas' system which many other states are copying, said board spokesman Harry Battson....

The parole department's report showed the highest release rate occurred in one of the worst crime categories: violent aggravated sexual assaults. Nearly 42 percent of those candidates considered for parole were released in the last fiscal year.

However, Battson, the parole department spokesman, stressed that the actual number of violent sex offenders released is relatively small and they are nearing the end of their sentences. This category accounted for 1,849 of the 24,342 released.

The data give positive feedback that even though more parolees are being released, they are committing fewer crimes. The number of new crimes dropped 3 percent last year compared to the previous year.

August 16, 2012 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, August 15, 2012

Former DA of LA says California "can no longer afford" its death penalty system

Gil Garcetti, the former Los Angeles district attorney, has this new op-ed headlined "End death penalty for dollars and sense."  Here are excerpts:

My office sought the death penalty in dozens of cases when I was the Los Angeles County district attorney for eight years, and chief deputy district attorney for four.  The cases had horrific and compelling facts; I had no problem seeking death sentences.  But though I never was squeamish, I now fully support Proposition 34 to replace the death penalty with life in prison with no possibility of parole.  Here's why.

California's death penalty is broken beyond repair, hideously expensive, and inevitably carries the risk of executing an innocent person.  The hundreds of millions of dollars we throw away on this broken system would be much better spent on solving and preventing crime and investing in our kids' schools.

I have no qualms with the death penalty in theory.  I do, however, object to the way it is carried out in practice.  We condemn murderers to Death Row with the hope of delivering severe punishment for their crimes.

Yet the reality is that these criminals enjoy special status.  Fan mail, private cells, their own personal television and other special privileges are not what I envisioned when I sought the death penalty as district attorney.  I am sure that is not what family members of victims envisioned either.

What's more, the costs of this dysfunctional system are staggering.  There's special housing, legal teams and a double trial process, among other costs.  The Office of the Legislative Analyst in California found that replacing it with life in prison without parole could save us $130 million every year.

We are on track to spend $1 billion on this broken system over the next five years.  All for what?  Most inmates die of old age.  We need to stop the waste wherever we can.  We need that money for police and teachers, not a Death Row that exists in name only....

Let me be clear: I am no less adamant about punishing heinous killers now.  Proposition 34 is tough justice.  Convicted murderers and rapists will remain in prison until they die, with no hope of ever getting out, and will have to work and pay restitution for their crimes.

The time is now to invest our scarce resources where they can do the most good. Fighting crime and funding education are sound investments.  We can no longer afford to prop up a system that works only in theory while it robs us of precious tax dollars.  California is ready for justice that works for everyone.

UPDATE:  Thanks to Kent's comment, I see now this companion op-ed authored by Stephen Wagstaffe, the San Mateo County DA, and Marc Klaas, father of 12-year-old Polly Klaas who was murdered by Richard Allen Davis. The piece is headlined "Ending death penalty would fuel crime," and it begins this way:

Should California preserve the death penalty for vicious murderers?  

That's the real question for voters considering Proposition 34.  It's not about saving money or preventing the execution of innocent people.  Those are political statements by special interests who have consistently fought against capital punishment.  Prop. 34 is their latest effort, complete with a catchy name and slick sales pitch.

We oppose Prop. 34 from the perspective of a father forced to bury his 12-year-old little girl after she was raped and murdered, and a district attorney who has taken an oath to defend and protect innocent citizens.

Should it pass, Prop. 34 would embolden violent criminals.  Make no mistake; criminals will take advantage of leniency and act brazenly without fear of consequences.

August 15, 2012 in Death Penalty Reforms, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (22) | TrackBack

Fascinating story of cowboy fun and games for prisoners in Angola

0802_prison_slateBecause so many of the stories about sentencing and corrections in Louisiana are depressing, I am very pleased a helpful reader alerted me to this interesting new piece up at CNN.  The piece is headlined "When the Game Means Freedom," and it is part of a series called "Gaming Reality." Here are extended excerpts which explain why this piece (and gaming culture) should be of interest to sentencing fans:

On October 20 in a small town in Louisiana, there will be a rodeo, complete with the prerequisite boots, bulls and Marlboro-man doppelgangers. But this particular rodeo will take place not at a fairgrounds, but at the Louisiana State Penitentiary, also known as "Angola."  The riders are untrained inmates who have earned the right to participate -- and feel up to 6 seconds of freedom atop an angry bull -- in a highly calculated and wildly effective prison reward system....

Burl Cain [is] Angola warden..., [and] in 2004 Cain was charged with giving a makeover to America's largest and bloodiest maximum-security prison, home to 5,300 violent offenders. It was a Goliath-sized task.  Angola was stained with a long history of gang violence and one particularly gruesome incident back in the 1950s when prisoners cut their Achilles tendons to protest poor lockdown treatment....

Cain's play-by-play at Angola reads like a deck of game-mechanics cards.  To change behavior, he introduced a progression system that was notched with "appointments" -- challenges inmates had to conquer to in order to get a reward.  Rise to the challenge and you could earn the right to own a pet, to take a job, even the freedom to roam the grounds.

To reach the highest level, known at Angola as becoming a Trustee, can take up to 10 years.  It's not an easy game, but it's one that the majority of its players are highly motivated to play.  Today, Angola is a thriving prison environment that has successfully "rehabbed" many hardened criminals into productive Trustees.  Prisoners have a sense of ownership, achievement, status and some healthy envy -- not to mention an award-winning prison newspaper.

Of course, this is not a new concept.  Prisons have long used incentive systems to motivate inmates.  But Cain's implementation is unique.  His approach has flourished because he evaluated his target audience and recognized that the traditional reward system was broken.  Cain realized that his audience -- many of them men facing life or double-life sentences -- might not be motivated by standard rewards like additional phone time, longer visitation hours or upgraded quarters.

But they would be motivated by an incentive that offered them meaning -- something they could be proud of.  Cain believed the opportunity to be a champion could infuse meaning and pride back into the prison experience while motivating inmates to be better men. Which brings us back to the rodeo.

At a certain point in the climb to Trustee status, inmates earn the opportunity to participate in the Angola Rodeo, held each spring and fall in an arena that holds more than 7,500.  The day consists of 11 events, including bull riding.  The beast in question is a 2,000-pound Brahma bull, and most times the inmate rider has never been on the back of a bull before.  All is not fair in prisons and rodeos....

It's not as unprofessional as it might sound.  Seasoned rodeo clowns are always present in the arena to distract angry animals, and a team of emergency medical personnel is waiting in the wings.  Still, the whole enterprise is speared with controversy, for obvious reasons. Precautions aside, inexperienced inmates are facing off with agitated, unpredictable animals in a costly, injury-ridden event.  Change the name and tweak the specifics, and the Angola Rodeo could easily become the plot of the next bestselling dystopian thriller. "The Hunger Games," anyone?

And yet, the rodeo is a powerful motivator for inmates, for two reasons.  The first is pride. Prisoners are willing to face serious injury for the chance to be cheered on by thousands of onlookers.  The event represents both an earned right and a true challenge to overcome.

The second, overarching incentive is meaning.  It's huge.  It's the reason why we as people respond to games and game-like scenarios.  Games, especially those with powerful incentive systems, lead us up a ladder and allow us to grasp at something intangible.  Much like the Greeks filled stone stadiums to watch gladiators, people are tuning in to the new reality TV show, "Louisiana Lockdown," to see Angola's prisoners succeed or fail. Audiences aren't just responding to the rodeo itself, they're responding to the game mechanics that are driving the inmates' right to participate in the rodeo.

It's a testament to how more people are embracing gamification, which applies game-design thinking to real-life situations to make them more fun and engaging.  You don't need an app or a product or a business to use game mechanics.  You just need a person or a group of people with a behavior that you'd like to change....

Angola is living proof that game mechanics have come a long way from motivating us to water virtual crops in FarmVille.  As inmates become Trustees and take their shot at fleeting glory atop rampaging bulls, game mechanics are becoming a commonplace, mainstream approach to solving even the most intractable of problems.

August 15, 2012 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, August 14, 2012

"A Moral Defense of Plea Bargaining"

The title of this post is the title of this piece available via SSRN from Michael Young. Here is the abstract:

This paper argues that the critics' best case fairly stated against plea bargaining fails in its own terms to show that plea bargaining is necessarily unjust or injustice-tending. Critically, this paper argues against plea-bargaining's critics without resorting to the typical pro-plea-bargaining arguments about efficiency or the value of choice. Plea-bargaining may be efficient as a means of deterring crime and saving prosecutorial resources, but, even if so, that fact would not redeem plea-bargaining if it were, as the critics claim, unjust. Or, plea-bargaining may realize the defendant's rational choice, but where it is sensible to ask whether those very choices should be in the first place thrust upon the defendant, an appeal to choice in this way begs rather than answers the moral question raised by the critic. If it is to be answered at all, the moral case against plea bargaining must be answered in the terms of the critics' real moral concern without resort to the usual poor arguments, and this paper provides that better moral answer by focusing on several key critical arguments.

Specifically, this paper offers original arguments challenging the critical claims that plea bargaining leads to the conviction of too many innocents (the "innocence problem"); that it is necessarily coercive or tending towards coercion; and that it inequitably leads to the unlike treatment of like cases (the "trial penalty" problem).

August 14, 2012 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Interesting report on marketing technology to a confined consumer

Businessweek has this notable new piece discussing some private companies' shrewd efforts to tailor technology products to inmate populations. The piece is headlined "The Apple of the U.S. Prison System," and here are excerpts:

The surge [in US prison populations in recent decades] has been good for a constellation of corrections contractors, including JPay, which handles money transfers, e-mail communications, and video visitations for more than 1.4 million inmates in hundreds of prisons across about 35 states. So good that the decade-old business last year expanded into selling inmates its own line of “prison-proof” MP3 players — what it dubs the JP3. “We’re looking for products that an inmate would want to buy and a corrections facility would accept,” says founder and Chief Executive Officer Ryan Shapiro, 35.  “Music was a no-brainer because inmates don’t have enough music and they all love music.”

Shapiro is aiming to make JPay, a 200-employee Miami business that became profitable in 2006, the Apple (AAPL) of the U.S. penal system. To understand why he thinks Apple or another tech behemoth can’t easily snuff him out, here’s a quick review of prison rules: Corrections facilities generally forbid devices that can be turned into weapons, be used to communicate freely with the outside, or conceal contraband.  Hand a violent prisoner an iPad and the risks become fairly clear.

Shapiro says JPay’s player, which retails for around $40 at kiosks the company installs in common areas inside prisons, is virtually indestructible. Inmates use it to browse a library of more than 10 million songs, “just like on iTunes,” and download them for $1.99 a pop. The three most popular artists are Usher, Tre Songz, and Kenny Chesney.  “We take outside applications, redevelop them for prisons specifically, and then deploy them,” Shapiro explains. “The prison doesn’t pay for any of [our services]; it’s the end user who pays.”

JPay didn’t pioneer its new line of business. Keefe Group, a St. Louis-based supplier of food and personal-care products to prison commissaries, launched its own music download service for prisoners in 2009.  While the 37-year-old company didn’t respond to interview requests, a press release posted on the company’s website says it sold more than 1 million downloads in just over a year.  On its own website, a rival correctional facilities supplier, Union Supply Group, headquartered in Rancho Dominguez, Calif., says it started selling digital music to offenders in 2003 and has available more than 5 million tracks “approved” by correctional partners. Shapiro won’t say what JPay has sold or how much it scores in annual revenue but asserts that the company is “way in front of [Keefe] when it comes to money transfer or the media business.”

Shapiro, who holds a bachelor’s degree in economics from the University of Colorado, Boulder, learned about the inconveniences of transferring money to a prisoner’s account when a friend’s mother was sentenced for embezzling.  He says inmates “understand you have to charge in order to be able provide a service … Look at our Facebook (FB)page. Look at how many times someone says: ‘I love JPay.’”

Next up for the business: a mini tablet it plans to start selling by yearend called the JP4. “It’s got an e-mail application, music, e-books — it’s got anything you can imagine,” says Shapiro.  “Think about education, think about games; it’s endless where we could go.  We think it’s as big, if not bigger, than the money-transfer business.”

August 14, 2012 in Prisons and prisoners, Technocorrections, Who Sentences? | Permalink | Comments (0) | TrackBack

Arkansas voters likely to have opportunity to vote on medical marijuana in 2012

This AP article, which is headlined "Ark. medical marijuana group submits signatures," reports on another state ballot initiative likely to give voters a direct opportunity to participate in pot policy reform. Here are the details:

Backers of an initiative that would legalize the use of medical marijuana in Arkansas submitted more than 74,000 additional signatures Monday to the secretary of state's office, though only about a quarter of them need to be valid to get the issue on the November ballot.

The group Arkansans for Compassionate Care was given time to gather more signatures after it submitted 65,413 names on July 5. Only 36,495 names from that batch were certified as being from registered voters, leaving organizers shy of the required 62,507 verified names.

The group's treasurer, Melissa Fults, said organizers learned more about the process after submitting its first batch of signatures. This time, she said, they made sure that volunteers and paid canvassers asked people when and where they last voted before asking them to sign the petition to help ensure the signees were registered voters. "I don't think there's much of a chance we won't" make the Nov. 6 ballot, Fults said....

Fults, of Hensley, said the group wants to convince voters that marijuana is the most appropriate treatment for some illnesses. So does Emily Williams, who said marijuana enabled her to cope with chemotherapy when she was being treated for lymphoma.

Williams, who spoke during a news conference at the Capitol with Faults' group, said she experienced constant nausea and vomiting. She said her doctor wouldn't prescribe marijuana but told her he didn't see the harm because other anti-nausea medications weren't working. "You hurt all over. Everything is just kind of black," the 55-year-old Fayetteville resident said.

Katherine Reynolds of Bella Vista said using marijuana helped her through breast cancer treatment and bone marrow transplants, explaining that it enabled her eat after hospital treatments. She said it was a necessary treatment and thought it absurd that she could be arrested for it. "If I didn't have that, I wouldn't be here talking to you," Reynolds said.

But the measure has drawn a tepid response from politicians. Gov. Mike Beebe and Attorney General Dustin McDaniel, both Democrats, have said they won't actively oppose the measure but that they probably won't vote for it. Spokesmen for Beebe and McDaniel said Monday that their positions have not changed.

The conservative Arkansas Family Council opposes the measure, arguing that marijuana is an illegal drug under federal law, which trumps state law. The group's director, Jerry Cox, didn't immediately return a message seeking comment Monday.

August 14, 2012 in Drug Offense Sentencing, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, August 13, 2012

California facing crunch time in prison population reduction plans

This new article in the Los Angeles Times, which is headlined "California unlikely to meet prison crowding reduction requirement," reports on the difficult corrections issues facing the Golden State a year after Plata.  Here are the details:

California's progress in relieving its teeming prisons has slowed so much that it probably won't comply with a court-ordered population reduction, and judges have raised the prospect of letting some inmates out early.

Three federal jurists have given the state until Friday to come up with a schedule for identifying prisoners "unlikely to reoffend or who might otherwise be candidates for early release" and to detail other ways to hasten the emptying of double-bunked cells. In the interim, the judges have ordered California to "take all steps necessary" to meet their existing deadline for population cuts.

A recent flurry of legal motions that provoked the judges' Aug. 3 order shines the first light on shortcomings in California's plan for fixing its prison system — one so overburdened, with healthcare so poor, that the U.S. Supreme Courtsaid incarceration there was tantamount to "cruel and unusual punishment."

In May 2011, the high court gave California two years to comply with the three judges' determination that prisons should not be overcrowded by more than 137.5%. State officials concede they are unlikely to reach that target by the June 2013 deadline and have told the judges they intend to ask for a new cap of 145%. That would mean about 118,000 prisoners, which is about 6,000 more than the court wants, in quarters built for 81,500.

The officials say they can comply with the spirit of the order — improved medical care and humane living conditions — if not the letter. "Reducing the inmate population is not the goal of the court," said corrections agency spokesman Bill Sessa. "It is a means to an end, which is providing better healthcare that was compromised by overcrowding." He said the goal of improved healthcare would be achieved next year, when the state opens a new 1,700-bed prison hospital in Stockton to house critically ill and long-term-care patients, which will also further reduce crowding.

Since October, Gov. Jerry Brown's realignment program has diverted tens of thousands of low-level felons to county jails and probation programs rather than put them in state lockups. A Times analysis of prison population reports and projections for the last year shows the number of inmates fell faster than analysts predicted but then leveled off.

August 13, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

"Death and Rehabilitation"

The title of this post is the title of this notable and timely new piece by Professor Meghan Ryan.  Here is the abstract:

While rehabilitation is reemerging as an important penological goal, the Supreme Court is eroding the long-revered divide between capital and non-capital sentences.  This raises the question of whether and how rehabilitation applies in the capital context.  Courts and scholars have long concluded that it does not — that death is completely irrelevant to rehabilitation.  Yet, historically, the death penalty in this country has been imposed in large part to induce the rehabilitation of offenders’ characters.  Additionally, there are tales of the worst offenders transforming their characters when they are facing death, and several legal doctrines are based on the idea that death spurs rehabilitation.

Courts’ and scholars’ conclusion that death is irrelevant to rehabilitation likely stems from changes in our understanding of rehabilitation.  While it was once understood as referring to an offender’s character transformation, references to rehabilitation now often focus on offenders’ direct impacts on society.  This has the effect, though, of distracting from the humanness of the worst offenders and consequently not providing them with true opportunities to transform their characters — a denial which challenges the Eighth Amendment’s focus on respecting the human dignity of the condemned.

August 13, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Sunday, August 12, 2012

Texas continues to lower its (still high) incarceration rates

TexasToday's Austin Amerincan-Statesman has this lengthy story discussing trends in Texas's prison population levels.  Here are extended excerpts:

In July, Texas' prison system posted its lowest head count in five years, even as the state's overall population continued to grow at a fast clip.

Instead of 156,500 prisoners behind bars in Texas' 111 state prisons a year ago, the lockups now hold just over 154,000 — a drop of about 2,500, according to state statistics. Texas, which historically has had one of the highest incarceration rates per capita of the 50 states, is now in fourth place, down from second two years ago.

Whether the declining prison population is the start of a long-term decrease or a short-lived dip is a matter of debate that will be settled only by time. Still, experts say, prison population declines are occurring in other states, too.

"It's real. It's happening, not only in Texas, but around the country," said Tony Fabelo, an Austin-based criminal justice consultant who coached Texas officials during the 1990s as the state tripled the size of its prison system and is now advising other states on how to decrease their prison populations. "The challenge is to sustain the outcomes to see how far you can go in downsizing prisons. I have my doubts, but it's an interesting time for criminal justice," Fabelo said.

Instead of sending more and more lawbreakers to prison, judges in Texas and other states are increasingly sentencing them to alternative treatment and rehabilitation programs that have proven more effective — and that cost much less. For taxpayers, that could mean safer communities and fewer expensive prisons to operate. For criminals, that could mean more effective programs to help them escape drug and other addictions and become law-abiding citizens again.

A decrease in crime rates, changes in demographics and an aging state population also have a role in emptying Texas' prison beds, experts say.

Not since the early 1990s, when then-Gov. Ann Richards, a Democrat, shook up the historical punishment culture of Texas prisons by opening new drug-treatment prisons focusing on rehabilitation, has such a dramatic trend emerged, some experts say. Only this time, conservative Republicans are driving the reforms that began in 2007, as fiscal conservatism gained the upper hand over tough-on-crime policies.

National prison rates

"Policies in various states are finally catching up with what we know works," said Marc Levin, director at the Austin-based Center for Effective Justice and a leader in the national Right on Crime campaign, which promotes community-justice solutions. "For most nonviolent offenders, community-based initiatives are much cheaper and have much better outcomes," Levin said. "In this time of tight budgets and programs that work, this is the conservative thing to do."...

More reforms are expected when the Legislature convenes next year, with proposals to change drug sentencing to provide more treatment rather than prison time and a push to fund a 2011 law that allows Texas counties to limit the number of felons they send to state prisons in exchange for more state funding for local corrections programs.

"We're definitely going to be looking at what works and what doesn't — and we know that treatment and rehabilitation and community justice programs work," said Senate Criminal Justice Committee Chairman John Whitmire, D-Houston, an architect of many of the reforms. "Prisons should be reserved for the worst of the worst, the violent criminals, murderers, child molesters we should definitely be afraid of. We have a lot of other inmates in there that could probably be housed someplace else, at less cost," Whitmire said....

Despite the enthusiasm in Texas and nationally for community-based alternatives to prison, there are limits [in part because] alternatives to prison don't work for everybody. Sharon Padilla's family highlights that dilemma.

The 34-year-old former Austinite, now living and working in Houston, served three years in Texas prisons for cocaine possession, after flunking out three times on probation with several stints in jail. "I went through programs one after the other, but nothing took," Padilla said. "Prison didn't do much, except it got me off the street.  Drug court got in my business big time, and I had to get my head straight. But it took myself to want to do it."

August 12, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

"Trends in Juvenile Justice State Legislation: 2001-2011"

The title of this post is the title of this notable report from the National Conference of State Legislatures.  Here are excerpts from the start and end:

Two main goals drive the nation’s juvenile justice system: protecting both public safety and the welfare and rehabilitation of young offenders who break the law.  State juvenile justice policies require balancing these interests, while also preserving the rights of juveniles.

A rise in serious juvenile crime in the late 1980s and early 1990s led to state laws that moved away from the traditional emphasis on rehabilitation in the juvenile justice system toward tougher, more punitive treatment of youth, including adult handling.  During the past decade, juvenile crime rates have declined, and state legislatures are reexamining juvenile justice policies and rebalancing approaches to juvenile crime and delinquency....

States are not complacent about juvenile crime and remain interested in providing public safety, improved juvenile justice systems and positive results for youth.  The legislative trends evidenced during the past decade reflect a new understanding of adolescent development and the value of cost-benefit analysis of existing data-driven research. Investing in community-based alternatives to incarceration and evidence-based intervention programs, as well as multi-system coordination and cross-systems collaboration are among the examples of how states now are better serving youth and addressing and preventing juvenile crime.

August 12, 2012 in Offender Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, August 11, 2012

"Marijuana Legalization Ballot Shows To Be Favored By Colorado Voters"

The title of this post is the headline of this notable new report on a notable new poll from the state which may soon become known as the highest state for a new reason.  Here is how the story starts:

Public Policy Polling released a new poll this week showing that likely voters in Colorado are in support of Amendment 64.

Colorado Amendment 64 is an amendment to Article 18 of the Colorado state constitution. If the amendment passes, it will permist a person 21-years of age or older to consume or possess limited amounts of marijuana.  The intent of the amendment is for marijuana to be regulated in a manner similar to alcohol.

The new survey presented by PPP was of 779 likely Colorado voters.  The Huffington Post reports that the survey, conducted between the dates of August 2nd and August 5th, shows that 47% would vote for Amendment 64 to pass if the election were held right now. 38% of the voters would vote against it, and 15% of voters remain uncertain in their decision.

Back in June, the PPP conducted a similar poll. The votes for passing Amendment 64 barely outpaced the opposition 46 percent to 42 percent.  Now two months later, support for the amendment has grown to 47-38.  According to PPP, the reason for this are the independent and young voters who are increasingly in favor of legalization.

As I have suggested in prior posts, Colorado is shaping up to be ground-zero for debate and discussion about pot policy.  These new polling data, and especially the apparent affinity that independent and young voters have for pot legalization, confirms my belief that national candidates in both political parties would be wise to develop ASAP a nuanced set of policy positions concerning how the federal government might respond if (and when?) this Colorado ballot initiative were to pass.

Some recent and older related posts on pot policies and politics: 

UPDATE:  Another state to watch on this front is Washington, and here is a notable new AP article on its marijuana reform ballot initiative.  The piece is headlined, "Legalizing marijuana could bring in $2 billion for Washington," and here is how it begins: "The state's latest financial analysis says legalizing and taxing marijuana could bring Washington as much as nearly $2 billion over the next five years — or as little as nothing."

August 11, 2012 in Drug Offense Sentencing, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (29) | TrackBack

Friday, August 10, 2012

Intriguing (and questionable) commentary on what Miller says and means

Via the ABA Journal, I just saw this new commentary authored by Erwin Chemerinsky discussing the Supreme Court's work in the Miller case and its potential impact.  Most of the commentary is a pretty standard discussion of the ruling, but some passages from the commentary struck me as interesting and somewhat questionable.  Here is how the piece starts along with the passages that caught my attention as worthy of some blog debate:

In Miller v. Alabama, the U.S. Supreme Court held in June that it is cruel and unusual punishment to have a mandatory sentence of life without the possibility of parole for homicide crimes committed by juveniles. At first glance, the decision seems to follow from other recent Supreme Court decisions that have limited the punishments imposed on juvenile offenders.

But in a key respect this case is different: previous cases prohibited the imposition of certain punishments under any circumstances, whereas Miller holds only that there cannot be a mandatory sentence. This distinction is going to matter enormously and raise important issues that are sure to be litigated....

Miller does not make it unconstitutional in all circumstances for a state to impose a sentence of life without parole for a homicide committed by a juvenile. Rather, it only holds that such a sentence cannot be mandatory.

This is going to require changes in the criminal justice system and pose difficult issues that must be resolved. First, if prosecutors wish to seek a sentence of life without parole for a homicide crime committed by a juvenile, there will need to be a proceeding to determine if this is warranted.

This will necessitate a penalty phase after conviction to make this decision. After the Supreme Court held that there cannot be a mandatory death sentence in homicide cases, the practice of the penalty phase developed for a determination of whether capital punishment is warranted based on the facts in each case. The same type of penalty phase will be required when life without parole is sought for a homicide crime committed by a juvenile.

In Ring v. Arizona, decided in 2002, the Supreme Court held that it is for the jury, not the judge, to decide in the penalty phase whether the aggravating factors sufficiently outweigh the mitigating circumstances to warrant a death sentence. Likewise, it will be for the jury to decide whether to impose a sentence of life without parole for a homicide committed by a juvenile....

[T]here is sure to be litigation over whether Miller applies retroactively. What about those now serving life without parole for homicides committed as juveniles? There is a strong argument that Miller should apply retroactively: It says that it is beyond the authority of the criminal law to impose a mandatory sentence of life without parole. It also would be terribly unfair to have individuals imprisoned for life without any chance of parole based on the accident of the timing of the trial.

On the other hand, if Miller is seen as just requiring a new procedure–a penalty phase before a sentence of life without parole is imposed for a crime committed by a juvenile – then it is unlikely to be applied retroactively. Procedural changes rarely apply retroactively. In fact, the Supreme Court held that Ring did not apply retroactively. In 2004’s Schriro v. Summerlin, the court concluded that Ring was a procedural change and not a "watershed" rule of criminal procedure that warranted retroactive application.

Ultimately, this is a question that will need to be resolved by the Supreme Court. My sense is that the Miller court did more than change procedures; it held that the government cannot constitutionally impose a punishment. As a substantive change in the law which puts matters outside the scope of the government's power, the holding should apply retroactively.

I see a whole lot I could nitpick about the analysis of Miller here, but for now I just want to get some reactions in the comments to what Chemerinsky seems to be saying Miller says or suggests.

August 10, 2012 in Assessing Miller and its aftermath, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, August 09, 2012

Is anyone eager to lament the death penalty as bargaining chip in Tucson shooting?

The question in the title of this post is prompted by this effective commentary piece by Debra J. Saunders, which is headlined "The Death Penalty and Jared Lee Loughner."  Here are excerpts:

Jared Lee Loughner pleaded guilty Tuesday to 19 counts involving a 2011 shooting in Tucson, Ariz., that left six dead and 13 others, including then-Rep. Gabrielle Giffords, wounded. As part of the deal, Loughner will receive a sentence of life without parole. Victims' families have been spared the rigors of a trial, and prosecutors can be sure that Loughner will never again endanger the general public. Thank the federal death penalty, which applied because Loughner shot people at a federally protected political event.

Defense attorney Gerald L. Shargel wrote on The Daily Beast that though it would have been a steep climb, Loughner could have won an insanity defense given his "long and tortured history of mental illness."  What could prosecutors have done to prevent litigation that would have spanned decades?  "Obviously, the prosecutors have to give something up in order to get the plea," Shargel told me.  Not that he sees this as a game, but "the only card to play was taking the death penalty off the table."

Giffords and her husband, Mark Kelly, issued a statement in support of the outcome.  "We don't speak for all of the victims or their families, but Gabby and I are satisfied with this plea agreement. ... Avoiding a trial will allow us -- and we hope the whole Southern Arizona community -- to continue with our recovery and move forward with our lives."

Death penalty opponents often argue that eliminating capital punishment in favor of life without parole would provide swifter resolution for victims' families, who would not have to endure years of appeals regarding pending executions.  Kent Scheidegger of the law-and-order Criminal Justice Legal Foundation says he likes swift resolution, too, but "it only happens when the death penalty's available."...

In the end, while Loughner was too mentally impaired to rate capital punishment, he also was too culpable to escape sure punishment for a well-planned killing spree.  Prosecutors took the death penalty off the table, and Loughner agreed not to appeal the results. Justice will be served.

Robert Hirschhorn, an attorney and jury consultant, does not support the death penalty, but he agreed that without it, there would have been no deal.  "You really want to use the death penalty as a bargaining chip?" Hirschhorn asked.

I don't see Giffords or Kelly complaining.

Very few folks, and especially the abolitionist community, are keen to celebrate or even acknowledge the plea bargaining benefits that the availability of the death penalty may provide in cases like the Tucson shooting (or the Unibomber case or for the Green River Killer or for so many other cases in which a plea to an LWOP sentence would not even be seriously considered by a defendant and his attorneys if death was not potentially on the table).

I am pleased that this commentary not only highlights, but actively praises, the role that the death penalty played in what seems like a just and effective (and certainly efficient) resolution of this high-profile mass murder case.  But maybe others, especially those in the abolitionist community, have a different view on this case and the role of the death penalty in its resolution.  Thus the question in the title of post, for which I welcome responses from all possible perspectives.

UPDATE after 17 comments:  A few commentors seem to view this post (wrongly) as asserting that the death penalty is always justified in order to always encourage guilty pleas in murder cases.  That is not the point of this post nor a claim I wish to make generally.  Rather, I mean via this post to wonder whether anyone is deeply troubled in the Loughner in particular --- or in other mass murder cases in which factual guilt is not reasonably in doubt --- that the death penalty has helped achieve what would appear to be a just and effective (and certainly efficient) resolution of a case that could otherwise have dragged on in court for decades (and cost taxpayers huge sums and give victims no real closure). 

In other words, this post does not ask whether the death penalty might sometimes be an unjust or misguided plea bargaining chip in some other settings, but rather asks if anyone is truly and deeply troubled that in the Tucson case the death penalty ended up playing this role.

August 9, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (37) | TrackBack

Wednesday, August 08, 2012

Ohio op-ed laments that capital cases "waste a lot of taxpayers' money"

Just in time for my return to Ohio after six weeks overseas, my own Columbus Dispatch has this new editorial about the costs of death penalty cases.  The piece is authored by Jack D’Aurora of The Behal Law Group, and here are excerpts:

When Mark W. Wiles was executed on April 8, Ohio was set to execute 11 more Death Row inmates, one every two months through January 2014. If you’re a social conservative, this is good thing, though you’re disappointed that Gov. John Kasich commuted the death sentences for Abdul Hamin Awkal and John J. Eley, who were scheduled to be executed this summer.

If you’re a fiscal conservative, you’re wondering why we spend so much time and money on the death penalty. Wiles was executed for a 1985 murder. Awkal and Eley committed murder in 1992 and 1986, respectively. Of the nine other inmates, four committed their crimes between 1983 and 1989, three between 1993 and 1994, and two in 1997 and 1998. That comes out to a minimum of 14 years between homicide and execution and an average of over 21 years. Another 133 Death Row inmates await execution dates.... I spoke with U.S. District Court Judge Gregory Frost about the time he and his staff spend on death-penalty cases. Like all federal judges, Frost presides over habeas corpus cases. To assist with the review of these cases, each of the three federal courts in the Southern District of Ohio employs a full-time law clerk (all licensed attorneys), and the court here in Columbus employs a part-time clerk, as well. The law clerks in Columbus handle about 25 cases, which may consist of anywhere from two boxes of documents to tens of thousands of pages.

Judge Frost also is involved in two other aspects of the death penalty. He reviews the very detailed protocol that begins 30 days prior to each execution and presides over a civil action concerning the death penalty, filed in 2004 on behalf of about 87 Death Row inmates....

Hearings are attended, at a minimum, by three assistant attorneys general, three attorneys for the inmate, the Lucasville prison warden, the director of the Department of Rehabilitation and Correction, counsel and other officials from the department, Frost and his two law clerks. These people all are paid by either the state or the federal government. Hearings can last from a few hours to multiple days....

Frost estimates that he and his staff spend 40 to 60 hours per month on some aspect of death-penalty cases.

The hidden cost of executing murderers reminds me of a commercial a few years back, where corporate executives are not allowed to leave a conference room until they devise a way to cut the company budget. After various ideas are tanked, one executive waives his hand over the binders and reams of paper that cover the table and asks, “How much does all this stuff cost?” The financial guy responds, “Time, people and material — it could be millions.” Everyone’s eyes open wide in astonishment.

Shouldn’t our state be equally concerned about time and money? Life sentences without parole would serve us much better, but we are fixated on a process that drains government resources. And to what advantage?

August 8, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Tuesday, August 07, 2012

"Jared Lee Loughner Pleads Guilty to Federal Charges in Tucson Shooting"

The title of this post is the heading of this press release coming today from the U.S. Department of Justice.  Here are excerpts:

Jared Lee Loughner, 23, of Tucson, Ariz., pleaded guilty today in federal district court to charges stemming from the January 8, 2011 shooting outside a supermarket that killed six people and wounded 13 others.  Under the terms of the plea agreement, Loughner will be sentenced to life in prison with no eligibility for parole.

“It is my hope that this decision will allow the Tucson community, and the nation, to continue the healing process free of what would likely be extended trial and pre-trial proceedings that would not have a certain outcome.  The prosecutors and agents assigned to this matter have done an outstanding job and have ensured that justice has been done,” said Attorney General Eric Holder.  “In making the determination not to seek the death penalty, I took into consideration the views of the victims and survivor families, the recommendations of the prosecutors assigned to the case, and the applicable law.”

“Given the defendant’s history of significant mental illness, this plea agreement, which requires the defendant to spend the remainder of his natural life in prison, with no possibility of parole, is a just and appropriate resolution of this case,” said U.S. Attorney John S. Leonardo.  “I hope that today’s resolution of this case will help the victims, their families, and the entire Tucson community take another step forward in the process of healing and recovering from this sad and tragic event.”...

Through a plea agreement, Loughner pleaded guilty to 19 counts of the superseding indictment handed down March 3, 2011....  Under the terms of the plea agreement, Loughner will be sentenced to seven consecutive life sentences, followed by 140 years in prison....

Convictions for the attempted assassination of a member of Congress, the murder of a federal employee, and causing the death of a participant in a federally-provided activity each carry a maximum sentence of life in prison ( or death in the case of murder), a $250,000 fine or both.  A conviction for the attempted murder of a federal employee carries a maximum penalty of 20 years in prison, a $250,000 fine or both. A conviction for injuring a participant in a federally-provided activity carries a maximum penalty of 10 years in prison, a $250,000 fine or both.

In determining an actual sentence, U.S. District Judge Larry A. Burns will consult the U.S. Sentencing Guidelines, which provide appropriate sentencing ranges.  The judge, however, is not bound by those guidelines in determining a sentence.  Sentencing is set before Judge Burns on November 15, 2012, at 10:00 am in Tucson.

August 7, 2012 in Celebrity sentencings, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Will women be the key swing voters for state marijuana ballot initiatives?

The question in the title of this post is prompted by this interesting local story from Washington, which is headlined "A mellow $1 million marijuana campaign."  Here are excerpts:

A group supporting Initiative 502, which would legalize, tax and regulate sales of marijuana in Washington, is up, up and away with a $1 million advertising campaign and a 30 second spot you’ll see on early morning TV news.  “It’s definitely targeted to women who tend to be less supportive of marijuana reform than men,” said Alison Holcomb, coordinator for the New Approach Washington campaign.

The marijuana campaign is mellow, featuring a woman looking into the TV screen and saying: “I don’t like it personally, but it’s time for a conversation about legalizing marijuana.  It’s a multimillion dollar industry in Washington State and we get no benefit. What if we regulate it?”  The end message:  A “new approach” to cannabis is needed.

New Approach is dealing with a tricky political climate ... [and] the country is polarized. Law enforcement has become addicted to its “War on Drugs” despite evidence that the war is being lost.  The 1930′s-vintage movie “Reefer Madness” is still taken seriously, and the careers of students, park rangers and Olympic athletes get permanently blighted if they test positive or admit to taking a toke.  At the other end of the spectrum are ... “Free the Weed” advocates, the pothead constituency deeply suspicious of city attorneys and former FBI agents and police chiefs signing on to the legalization cause....

New Approach Washington has been laying groundwork for more than a year.  At last check with the Washington State Public Disclosure Commission, it has raised $2.95 million and spent $1.4 million.  Still, both major candidates for Governor — Republican Rob McKenna and Democrat Jay Inslee — have come out against Initiative 502.  So have several major police organizations.

As regular readers know, I find the on-going legalization campaigns in a few Western states to be fascinating and useful for sentencing fans to follow closely.  The local, state and national mood concerning the pros and cons of the drug war are always difficult to guage, and I expect the advertising and polling over theese initiatives to provide an important window into what the most passionate advocates (and monied interests) view as key elements in the broader drug war battlefield.

Some recent and older related posts on pot policies and politics: 

August 7, 2012 in Drug Offense Sentencing, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (18) | TrackBack

Monday, August 06, 2012

Will Texas go forward with scheduled execution of inmate with recorded IQ of 61?

Last month, Georgia was poised to execute Warren Hill, who has a pretty strong claim that he is mentally retarded and thus ineligible for execution under the Supreme Court's 2002 Atkins ruling.  That execution was ultimately stayed based on concerns about Georgia's lethal injection protocols (some blog reporting on the case can be found here and here and here).  Now, as reported in this detailed article, Texas is the state seemingly ready to execute a condemned defendant  who who has a pretty strong claim that he is mentally retarded.  Here are the basics:

Death row inmate Marvin Wilson's attorneys petitioned the U.S. Supreme Court to stay his execution, set for Tuesday, arguing the convict's date with a lethal injection runs contrary to a 2002 ruling by the nation's highest court.  The catch, and what Wilson's lawyers hope will spare his life, remains his I.Q. of 61 coupled with a medical diagnosis of mental retardation.

Texas' counter?  Wilson is wholly dissimilar to a fictional character created by novelist John Steinbeck.

The 54-year-old was convicted in 1992 of murdering a police drug informant.  His planned execution is becoming another linchpin in the exhaustive battle over capital punishment, this time calling into question who or what exactly determines "mental retardation."...

The [Supreme Court's Atkins] decision lacked a formal definition for "mentally retarded," which the Supreme Court intentionally ignored to avoid codifying a means to test mental retardation.  "The Supreme Court doesn't like to micromanage," said Richard Deiter, Executive Director of the Death Penalty Information Center.  "Still, it's not a blanket recipe for 'do anything want.'"...

The Texas Court of Criminal Appeals ... used the absence of strict orders as license to set a threshold which ignores recognized medical testing; ... it concocted seven criteria called "Briseno factors," which were based upon the character Lennie Small from Steinbeck's novel Of Mice And Men.  In short, the measuring stick allows executions to be carried out if a judge determines the crime was complex enough to require forethought, planning and intricate execution.  Wilson met all the criteria....

During his stint in prison, Wilson was subjected to a battery of tests to determine the borders of his mental limitations, including a 2004 report by Dr. Donald Trahan with the Center for Behavioral Studies in Texas.  "It is evident that the deficiencies in general intelligence and adaptive behavior have been present since early childhood and well before the age of 18," Trahan wrote.  "My evaluation of Mr. Marvin Lee Wilson reveals that he does meet the criteria for a diagnosis of mild mental retardation."

His ultimate medical I.Q. of 61 puts him in the lowest percentile of the population, with the literacy level of a 7-year-old.  "If Wilson is executed on Tuesday, Texas will be rendering the US supreme court's Eighth Amendment prohibition on the execution of mentally retarded prisoners a prohibition in name only," said Lee Kovarsky, Wilson's lawyer...

Several factors could change Wilson's fate over the next 24 hours.  The Supreme Court could offer a stay of execution, a lower court could push back as well.  Texas Gov. Rick Perry could also intervene -- though the prospect remains unlikely.  He vetoed a bill that would have banned the execution of mentally retarded inmates, as well as defined the term, in 2009.

August 6, 2012 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Notable report on "decarceration laboratory" taking place in California

Today's New York Times has this interesting new article, headlined "In California, County Jails Face Bigger Load."  The piece discusses how one big county in the largest state in the US has been responding to the Plata ruling, which has required California to reduce its prison populations to remedy  the Eighth Amendment problems created by severe overcrowding.  Here is an excerpt:

Ordered by the United States Supreme Court to reduce severe overcrowding in its prisons, California began redirecting low-level offenders to local jails last October in a shift called realignment. Its prison population, the nation’s largest, has since fallen by more than 16 percent to 120,000 from 144,000; it must be reduced to 110,000 by next June.

Counties with already tight budgets are scrambling to house the influx of newcomers in facilities that were never designed to accommodate inmates serving long sentences, like a man who began serving 15 years for fraud recently in the Fresno jail.

Fresno County — a sprawling agricultural area surrounding the city, which is also facing financial problems and became a punch line for Conan O’Brien recently — is adding 864 beds to its chronically overcrowded jail. Under a longstanding federal consent decree that requires the Sheriff’s Department to release inmates when the jail reaches capacity, 40 to 60 people are let go early every day.

In a move watched by other states also facing prison overcrowding, California is handing its 58 counties money and leeway to decide how to handle the new arrivals. Liberal communities like San Francisco are using a greater share of the state money on programs and alternatives to incarceration. But most counties, particularly here in the conservative Central Valley, have focused on building jail capacity.

That troubles organizations on both sides of the political spectrum. Sheriff Keith Royal of Nevada County, the president of the California State Sheriffs’ Association, said members were worried about their capacity to provide “adequate treatment” in jails and about “litigation at the location level.” The American Civil Liberties Union warned that instead of making fundamental improvements to the criminal justice system, many counties risked simply repeating the state’s mistakes by reflexively putting people behind bars....

Allen Hopper, a lawyer with the A.C.L.U. who co-wrote a study on the shift to jails, said the population at county jails could be significantly reduced by overhauling pretrial procedures. Many inmates, who present no risk, remain in jail simply because they cannot afford bail, he said, adding that alternatives like electronic monitoring and day reporting could free up jail space and save counties money.

But in counties where elected officials are afraid of appearing soft on crime, such alternatives are particularly sensitive. “Everything is political,” said Sheriff Margaret Mims of Fresno County. Sheriff Mims said she had become “less optimistic” about the shift to jails because of rising crime in the county, including burglaries and car thefts. Though law enforcement officials acknowledge that rising crime cannot be linked directly to the realignment policy, they say people engaging in nonviolent offenses like property crime no longer fear being sent to prison.

Despite Fresno County’s conservative attitude toward crime, the policy shift has fueled a debate about alternatives to incarceration by grouping various agencies in the committee overseeing the change, said Emma Hughes, a criminologist at California State University, Fresno, who is working as a consultant for the county.

Linda Penner, the chief probation officer and chairwoman of the realignment committee, said that having secured money to reopen two jail floors, the committee had the political room to approve the $848,000 for the rehabilitation program. “Do I think we’re all getting on the same page in reckoning with the fact that we have to create alternatives to detention?” she said. “Yes.”

This piece, and other like reports on what has been going on in California over the past year since the Plata ruling, confirms my belief that it will likely take a lot of time and a lot of sophisticated reseach before we will be able to reach any confident conclusions concerning the true impact of the Plata ruling and the ways in which California's political and legal system has responded.

August 6, 2012 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack