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October 20, 2007

More on what a de facto execution moratorium might entail

This new AP article explores whether the emerging de facto execution moratorium could mean even bigger things for death penalty policy and politics.  Here is how the piece starts:

Stop executions for a while and perhaps they can be stopped forever.  That calculation has been part of the strategy of capital punishment opponents for decades.  The Supreme Court-inspired slowdown in executions offers the first nationwide opportunity in 20-plus years to test whether the absence of regularly scheduled executions will lead some states to abandon the death penalty and change public attitudes about capital punishment.

Some recent related posts:

October 20, 2007 in Death Penalty Reforms | Permalink | Comments (10) | TrackBack

Should medical boards be able to bar doctor involvement in executions?

This interesting article discusses an on-going battle in North Carolina over doctor involvement in executions.  Here are snippets:

North Carolina doctors reasserted their opposition to participating in the executions of condemned criminals this week, appealing a judge's ruling that the state medical board cannot prohibit doctors from taking part in lethal injections.  The appeal focused renewed attention on doctors' roles during executions.

The U.S. Supreme Court and several other states are also considering whether executions by lethal injection cause excessive pain. There has been considerable debate about whether doctors should be present during lethal injections, a conflict sometimes described by doctors as "The Hippocratic Paradox." On one hand, doctors may be needed to carry out a lethal injection execution so that it is consistent with 8th Amendment prohibitions against cruel and unusual punishment.  But others say the Hippocratic oath to preserve life rules out their involvement....

The current controversy was stirred when U.S. District Judge Malcolm J. Howard blocked an April 2006 execution at the prison in Raleigh after defense lawyers raised concerns that condemned inmates were experiencing an excessive level of pain during lethal injections....  Then, Howard reversed course, ruling that the execution could go forward, after prison officials said they would use a bispectral index monitor, which the state said could track the inmate's level of consciousness. The ruling required that medical personnel be present to ensure that the condemned inmate was unconscious before the second and third drugs were administered.

Charles van der Horst, professor of medicine at the University of North Carolina Medical School, and Arthur Finn, a retired doctor, were concerned that doctors would be asked to play a larger role in lethal injections.  Last year, they and other physicians urged the medical board to take a firm stand against any doctor participation in executions, saying it violated the Hippocratic oath. In mid-January, the board adopted that position..... 

In March, the state corrections department sued the board, asserting that it had prevented the state from finding physicians to be present at executions. Last month, state court JudgeDonald W. Stephens ruled that the board had overstepped its bounds. He said the state law requiring a doctor to "attend and provide professional medical assessment" during executions overrode the board's position.  The judge said executions should not be categorized as a "medical procedure or medical event" even though doctors were called on for medical tasks, including "ensuring that the condemned inmate is not subjected to unnecessary and excessive pain," and determining whether the inmate was dead.

Some related posts/readings about doctors and executions:

October 20, 2007 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1) | TrackBack

The practical challenges of sex offender tracking

This fascinating Los Angeles Times story highlights the practical difficulties of extensive tracking of sex offenders.  The article is headlined "Some sex offenders go untracked: A measure approved by voters last year fails to clarify how to pay for satellite monitoring and which offenders require supervision."  Here is how it starts:

Hundreds of California sex offenders who are supposed to be monitored for life under an initiative approved by voters last year are now unsupervised because the law does not detail who is responsible for tracking them or how to pay for enforcement.  The ambiguity in the measure, Proposition 83, commonly known as Jessica's law, could affect thousands of sex offenders returning to local communities.

State corrections officials are warning local sheriffs and police that 553 convicted sex offenders who they believe fall under Proposition 83 have already been dismissed from parole and are not being monitored.  Therefore, there is no way to check whether they are complying with the law's requirement that they live more than 2,000 feet from schools and parks, and they are not being tracked by satellite for life. An additional 98 are expected to leave parole by year's end.

California Corrections Secretary James Tilton on Thursday began notifying local law enforcement agencies that the state would no longer take responsibility for placing tracking devices on the ankles of sex offenders once they leave parole.  But few if any local agencies around the state are equipped to handle the expensive and intensive satellite monitoring the law requires. And the law is not clear on whether they should have to do so.

Some related posts on sex offender GPS tracking:

October 20, 2007 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

October 19, 2007

Is the de facto moratorium on executions going to impact capital indictments and death sentences?

One of many questions I have now that a de facto execution moratorium has emerged is whether and how all these Baze-y, crazy lethal injection developments might impact prosecutors considering whether to seek death charges and jurors considering whether to impose death sentences. 

Of course, legal concerns about lethal injection protocols should have no real impact whatsoever on the legal issues surrounding capital charges and sentences.  Nevertheless, the fact that few if any executions will go forward for many months, I have to suspect that state prosecutors and juries could be less motivated to push a case into the unpredictable death penalty universe.

I would be especially grateful if practitioners might be willing to weigh in on this question:

Do you think the Baze case and all its ripple effects could start impacting prosecutors' willingness to pursue capital charges or the views of capital jurors?

October 19, 2007 in Death Penalty Reforms | Permalink | Comments (7) | TrackBack

Intriguing new paper on plea dynamics on SSRN

The recent Marquette Law Review symposium on plea bargaining looks to be producing a number of very interesting papers.  One by Alafair Burke, entitled "Prosecutorial Passion, Cognitive Bias, and Plea Bargaining," recently appeared on SSRN at this link.  Here is the abstract:

The standard account in support of plea bargaining is that it reflects both likely trial and sentencing outcomes, but a growing literature explores the ways in which plea negotiations are influenced by factors other than the likelihood of conviction and the probable post-trial sentence. For example, structural factors such as limited pre-trial discovery, attorney self-interest and incompetence, pretrial detention, and determinate sentencing can affect the parties' willingness and power to negotiate. Several scholars have also observed the ways that psychological and cognitive factors, such as overconfidence, denial, information barriers, framing, anchoring, and risk aversion, can influence plea bargaining. Previous examinations of the influence of cognitive bias on plea bargaining have focused primarily on the decision making of defendants.  This Article, a contribution to Marquette Law Review's symposium on plea bargaining, seeks to contribute an additional dimension to the understanding of plea bargaining dynamics by exploring influences on the decision making of prosecutors.

A central tenet of plea bargaining is that prosecutors are willing to negotiate settlements to free up trial resources for other cases.  Accordingly, the first step in this Article's exploration of prosecutorial decision making in plea bargaining is an examination of the factors that drive a prosecutor's prioritization of cases.  Specifically, Part I argues that prosecutors prioritize cases in part by the amount of passion they feel in each case. Prosecutorial passion — how much a prosecutor “cares” about a case — is an undefined and unexplored factor in the current literature, and reflects subjective determinations beyond the strength of a case's evidence or its likely post-conviction sentence.

Part II explores the ways that prosecutorial passion might affect plea bargaining.  First, passion might create a conscious aversion to plea bargaining in prosecutors. Second, even when a passionate prosecutor believes she desires settlement, passion might trigger or exaggerate cognitive biases that will make settlement less likely, such as selective information processing, loss aversion, framing, overoptimism, hindsight bias, anchoring, and the sunk cost fallacy.  Part III concludes with some brief thoughts regarding the implications of prosecutorial passion for plea bargaining reform.

October 19, 2007 in Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

NY Times coverage of moratorium head-scratching

In today's New York Times, Linda Greenhouse has this effective article entitled, "Trying to Decipher the State of the Death Penalty."  Here is how it starts:

Is there a death penalty moratorium now in place, and how would we know?

The Supreme Court has granted two stays of execution and refused to vacate a third in the three weeks since it agreed to hear a challenge to Kentucky's use of lethal injection. 

On Thursday, the Georgia Supreme Court became the latest state court to interpret the justices' actions as a signal to suspend at least some executions.  It granted a stay to Jack Alderman, who had been scheduled to die by lethal injection Friday night for murdering his wife 33 years ago.

The top criminal court in Texas, a state that accounts for 405 of the 1,099 executions carried out in this country since 1976, has indicated that it will permit no more executions until the Supreme Court rules, sometime next spring.  The Nevada Supreme Court this week postponed all executions in that state.  The governor of Alabama gave one inmate a 45-day reprieve.... This sequence of events has led some death penalty opponents and other analysts to declare that a de facto moratorium is in place.

Because the article thereafter kindly quotes my recent "moratorium mojo" post, it seems I am one of the "other analysts" declaring that we now have a de facto moratorium.  In fact, as some posts linked below explain, I think we may now be only a month into an execution hiatus that could last a year or even longer because of the likely pace of the Baze litigation and the uncertainty that may follow whatever nuanced ruling the Supreme Court delivers in Baze.

And yet, moratoriums (like sports momentum) can change very quickly.  So I think Karl Keys and others are wise to caution against too readily assuming that there will be no executions at all until Baze is decided.  That said, as detailed in this AP article, it seems all but certain that 2007 will end up having the fewest total executions in a decade and 2008 may end up having the fewest executions in a quarter century.

October 19, 2007 in Baze and Glossip lethal injection cases | Permalink | Comments (1) | TrackBack

The practical consequences of residency restrictions

This new CNN piece, headlined "Trailer park becomes 'paradise' for sex offenders," highlights one of the many collateral consequences of sex offender residency restrictions.  Fortunately, the story is a bit more positive than the headline suggests.  Here is how it begins:

It's a community that seems serene, with just a wind chime breaking the silence.  But look again and you will see many residents wearing ankle monitor systems that alert authorities if they wander too far away.  Nearly half the residents of the Palace trailer park are convicted sex offenders.

Ninety-five of these 200 residents are convicted sex offenders, including some pedophiles. The adults-only, nondescript, low-income trailer park near St. Petersburg, Florida has gained a reputation among sex offenders on probation as a good place to live and stay out of trouble. 

"Out there ... it's a jungle," said Michael, who did not want his last name used for this report. "In here, it's our own little piece of paradise. We're safe here." Michael was released from prison in June. He's been a familiar face to law enforcement in Florida and Mississippi for the past 20 years, serving prison time for grand theft, drug possession and sexual battery on a child.  "I pray a lot that my victim has been given the opportunity to grow beyond the horrendous problem that I caused for them," he said. In many ways, the Palace provides him a second chance at life.

New laws across the country have limited where sex offenders and predators can live, banning them from places where children might congregate.  This trailer park is far enough away from schools, churches, playgrounds and bus stops, allowing Michael to call it home without running afoul of the law. "As a sex offender -- when you come out, you're told you can't do this; you can't be around children; you can't go to parks; you can't go to the beach; you can't go to the library," he said.

Nearly 600 sex offenders have lived here in the past couple of years, according to manager Nancy Morais, who said she was sexually assaulted by a family member as a little girl.  Not only does she allow the sex offenders to live here, she also offers therapy to help them become part of society again. "Put him on the right track, and we have a better chance of seeing society be a little bit safer with this person," she said. "Can I guarantee they're all gonna be good? Of course not."

October 19, 2007 in Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

A Fifth Circuit unpublished affirmance of a long white-collar sentence

This AP article details that the Fifth Circuit this week affirmed a notable above-guideline sentence in a fraud case.  Here are details from the article:

A federal appeals court has upheld the sentence of the former chief financial officer of a West Texas oil and gas drilling company who pleaded guilty to swindling $77 million from his employer.  Jonathan Dwane Nelson wanted the 5th U.S. Circuit Court of Appeals to revisit his 25-year sentence, saying the length fell outside punishment guidelines. The New Orleans-based court on Wednesday disagreed, saying the district court's sentence was reasonable. 

Officials say Nelson embezzled $77 million from Snyder-based Patterson-UTI. Authorities allege Nelson sent the money to companies he controls and then spent it on an airplane, an airfield, a cattle ranch, homes, vehicles and a truck stop. He pleaded guilty in April 2006 to one count of wire fraud and aiding and abetting; and one count of engaging in monetary transactions derived from specified unlawful activity and aiding and abetting. 

He was sentenced last October. He also was fined $200,000 and ordered to pay restitution from the sale of assets he had purchased with the stolen money. The punishment range was 188 to 235 months, court documents show.  But U.S. District Judge Sam Cummings issued a non-guideline sentence of 300 months because the court found Nelson's actions justified a harsher punishment than the guidelines set forth.

I had to get the case details from the AP article because the Fifth Circuit's unpublished disposition in Nelson provides very few of these specifics.  Indeed, what's most significant about the Fifth Circuit's work is its willingness to approve so quickly a sentence that requires a non-violent offender to serve nearly a decade more time in prison than the guideline range suggests would be sufficient.

October 19, 2007 in Booker in the Circuits | Permalink | Comments (3) | TrackBack

October 18, 2007

Georgia Supreme Court stays execution scheduled for this week

Providing still more evidence that the Supreme Court has helped create a de facto moratorium on executions, the Georgia Supreme Court has now blocked the scheduled execution of condemned defendant Jack Alderman, which was to take place tomorrow. This local article provides more details:

Alderman was scheduled to die at 7 p.m. Friday, but 27 hours earlier the Georgia Supreme Court issued a stay.  The justices wrote in their order that their reasoning was based on the U.S. Supreme Court decision last month to hear a Kentucky inmate's challenge to the three-drug lethal injection method, and then a decision by that same court on Wednesday to stop an execution that was scheduled in Virginia.

"It certainly seems a [national] moratorium is now in place on lethal injections and all executions until the [U.S.] Supreme Court issues an opinion in the Kentucky case," said Richard Dieter, executive director of the Death Penalty Information Center in Washington. "The pattern seems clear. Lower courts and state courts have gotten that message."

October 18, 2007 in Baze and Glossip lethal injection cases | Permalink | Comments (4) | TrackBack

Mitt Romney, a foolproof death penalty system, and tinkering with the machinery of death

I had a chance to talk with a reporter today about whether the Baze case and broader capital punishment issues might become a topic in the 2008 election campaign.  While saying "anything is possible" when it comes to the politics of the death penalty, I was reminded of the interesting encounter that candidate Mitt Romney had with death penalty politics when governor of Massachusetts.

As noted in my very first blog post, back in 2004 then-Governor Romney created by an 11-member death penalty commission to attempt to establish a nearly "foolproof" death penalty system for Massachusetts.  That committee produced a very interesting report --- which, intriguingly, is no longer easily accessible on-line [Update: S.cotus found the report] --- that became a Romney-backed bill for bringing the death penalty back to the Bay State.  However, as this amazing article from the Boston Phoenix highlights, Romney's capital punishment bill proved to be an extraordinary political disaster.  (The full title of the Boston Phoenix article is "The sudden death of Romney's dream: What once seemed like a clever ploy has become a political and policy disaster for the governor.")

Could Romney's bad experience with capital punishment politics in part explain why none of the presidential candidates have so far said boo about all the recent lethal injection controversies?

October 18, 2007 in Baze and Glossip lethal injection cases, Campaign 2008 and sentencing issues, Death Penalty Reforms | Permalink | Comments (4) | TrackBack

Possible ineffective assistance in an Eighth Circuit crack appeal that nobody sees

Though perhaps I am trying to turn this into a "dogs not barking" story, I am very troubled to see that Eighth Circuit today apparently affirms a within-the-old-crack guidelines sentence in an unpublished Anders case in US v. Wanton, No. 06-3502 (8th Cir. Oct. 18, 2007) (available here).  The facts are scarce in this unpublished disposition, but it appears that the defendant in Wanton pleaded guilty to distributing more than 50 grams of crack and received a bottom-of-the-range sentence of 135 months in prison.  Since the Eighth Circuit has adopted a presumption of reasonableness for within-guideline sentences, perhaps it seemed obvious to the defense counsel that a sentencing appeal was friviolous.

But, with the US Sentencing Commission saying in powerful terms in May that the crack guideline are too harsh, and with the USSC's reduction in crack guildeines sentences becoming effective in a matter of weeks, and with the Supreme Court having just hear a crack sentencing case in Kimbrough, there ought to be a lot more to the story in Wanton.  Indeed, unless the district court record demonstrates that the district judge was aware at sentencing of all these developments, I think it is a form of ineffective assistance for a defense attorney to assert that any appeal of a within-the-old-crack guidelines sentence is frivolous.

Some related posts:

October 18, 2007 in Booker in the Circuits, Kimbrough reasonableness case, New USSC crack guidelines and report | Permalink | Comments (7) | TrackBack

More on the moratorium mojo and a guessing game

This front-page article in today's Washington Post provides a very nice review of the de facto execution moratorium the the Supreme Court has helped produce.  The piece is entitled "Supreme Court Halts Va. Inmate's Execution: Ruling Could Lead To National Hiatus In Lethal Injections," are here are a few snippets:

Richard Dieter, executive director of the Washington-based Death Penalty Information Center, agreed [a moritorium has developed]. "I believe this stay in Virginia, combined with previous stays in a number of other states, confirms that a moratorium on all lethal injections is in place in this country until the Supreme Court rules on the issue," he said. Lethal injection is the primary method of execution in 37 of the 38 states that have the death penalty.  Nebraska uses electrocutions, but no executions are scheduled there.

Kent Scheidegger, legal director and general counsel for the Criminal Justice Legal Foundation, which favors capital punishment and opposes expansion of criminal rights, said he had hoped the court would explain its reasoning in its case-by-case review of the stay requests.  Another appeal, from Georgia, is likely to reach the court this week. If the court's action amounts to a moratorium, Scheidegger said, it would dilute "the deterrence effect" of the death penalty and "cause more innocent people to die."

Even without a halt to the use of lethal injections, the pace of executions nationally is the slowest in a decade.

As I have explained in prior posts (some of which are linked below), the Baze case presents the potential to halt executions for as long as a year if the Supreme Court doesn't issue a ruling in this Kentucky case until summer 2008, and then other states need a few months to figure out exactly what the ruling means for their execution protocols.  So, now seems like a fitting time for an SL&P guessing game centered on this question:

On what date and in what state will the next US execution take place?

As the excerpt above notes, it is possible that Georgia could still be trying to forward with executions in the next few weeks.  But, after the Virgina stay, I think Georgia will get thwarted, too.  As a result, I am inclined to guess that we won't see another execution until probably August 2008 in Texas.  But this is pure speculation and others are encouraged to provide a more informed perspective.  (In this context, I must spotlight that my early January prediction of less that 46 executions in 2007 is now looking pretty good.)

Some related posts:

October 18, 2007 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (21) | TrackBack

Valuable recidivism assessment and analysis from down under

Thanks to a helpful colleague, I learned of this terrific new report on recidivism published by the Australian Institute of Criminology entitled "Recidivism in Australia: findings and future research."  This report is obviously a must-read for anyone interesting in international sentencing issues, but it also ought to be read closely by anyone seriously interested in evidence-based sentencing policy and reform.

The report is lengthy, but an executive summary makes it easy to take in the highlights.  Here is how that summary starts:

At a time when evidence based policy development has become increasingly important in the criminal justice policy arena, recidivism research provides promise for crime control strategies targeted at reducing reoffending. Identifying recidivists, understanding the correlates of high volume offending, and evaluating programs designed to reduce offending remain three key research and policy priorities in Australia.

Despite the importance of recidivism, there is a large divide between research and policy. What policy makers would like to measure often bears little resemblance to what researchers are able to measure, given the limitations on appropriate data and available information. As a result, research findings are often used out of context and with little regard for limitations imposed on them by the methodological constraints they face. This is driven primarily by a lack of clarity surrounding an appropriate definition of recidivism and clear articulation of research methodologies.

This report deals with important questions relating to recidivism research. It provides a conceptual framework through which recidivism can be defined and interpreted and arms both researchers and policy makers with a battery of tools useful in critical assessment of the research literature. It begins by looking at the general definition of recidivism and the problems inherent in its measurement and identification.

October 18, 2007 in Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (0) | TrackBack

Interesting state sentencing stories nationwide

I am having a ver hard time keeping up with all the sentencing news these days, and thus I'll let these recent headlines and links cover a lot of notable state sentencing stories:

I hope to find time to do a lot more coverage of some of these important stories in future posts.

October 18, 2007 | Permalink | Comments (1) | TrackBack

The consequences of Cunningham in Hawaii and Tennessee

With so much going on, I have failed to report previously that in the last few weeks the highest courts in both Hawaii and Tennessee have (finally) recognized that they have to live in Apprendi-land.  Specifically, recognizing the impact and import of the Supreme Court's ruling in Cunningham (which applied Blakely to California's structured sentencing system), the Supreme Courts of Hawaii and Tennessee have both recently held that their states' mandatory sentencing schemes create Sixth Amendment problems.

These recent rulings came in State v. Maugaotega (available here) and State v. Gomez (available here).  A local press report provide the basics in this article from Hawaii.  And BNA subscribers can read about both rulings at this link.

October 18, 2007 in Blakely in the States, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

October 17, 2007

Effective district court review of SONRA enforcement issues

Though District Judge Paul Cassell will be stepping down from the bench in only a matter of weeks (details here), he is still producing effective sentencing rulings as he clears his docket.  Specifically, earlier this week he effectively reviewed the state of the law concerning enforcement of the recently enacted federal Sex Offender Registration Notification Act (SORNA) in US v. Gill, No. 2:06-CR-00725 (D. Utah Oct. 15, 2007) (available below).  Here is how Gill begins:

Defendant John Henry Gill, convicted of a sex offense in 2003, moves this court for an order to dismiss the indictment charging him with failing to register as a sex offender during September and October 2006 — as required by 18 U.S.C. § 2250(a) of the recently enacted Sex Offender Registration Notification Act (SORNA).  Mr. Gill alleges that, at least as applied to him, SORNA violates the Ex Post Facto Clause of the Constitution.  Mr. Gill raises two ex post facto challenges. He first argues that the Ex Post Facto Clause blocks any registration requirement for previously convicted offenders.   He also argues that, even if SONRA could constitutionally be applied to him, it did not in fact apply to him; he failed to register before the Attorney General had promulgated Interim Rules making SORNA’s criminal provision applicable to persons convicted before its effective date.  The court agrees with Mr. Gill’s second, narrow submission. Because SORNA did not apply to Mr. Gill until the Attorney General issued the Interim Rule in February 2007, and because his alleged failure to register predates the promulgation of that Rule, his indictment violates the Ex Post Facto Clause.  Therefore, the court grants Mr. Gill’s motion to dismiss.

Download cassell_gill_order.pdf

Footnotes 26 and 27 of this ruling spotlight that there is a very significant split of district court authority on the Ex Post Facto issue on which the defendant in Gill prevails.  Put more boradly, Gill highlights that SORNA is a piece of legislation that seems likely to divide lower courts on various consequential issues.

October 17, 2007 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Supreme Court, continuing de facto moratorium, grants execution stay in Virginia

The latest news from inside the Beltway, as detailed in this new order, is that the Justices have yet again granted a stay to prevent a state from going forward with a lethal injection execution.  As detailed in this AP report, the latest stay comes in a Virginia case.

The Supreme Court decides cases and motions; it is not in the business of officially declaring executions moratoriums.  Nevertheless, despite the sound and cautious analysis from Kent at C&C and Lyle at SCOTUSblog, I am prepared to assert that the Supreme Court has essentially decided that it should perpetuate a de facto national moratorium on lethal injection executions at least until the Baze case gets going (and probably until the Baze is decided on the merits sometime in 2008). 

Some recent related posts:

October 17, 2007 in Death Penalty Reforms | Permalink | Comments (5) | TrackBack

Any serious sentencing talk at the Mukasey hearings?

This new CNN piece, headlined "Attorney general nominee pledges independence," provides some of the highlights of today's Senate Judiciary Committee hearing for Attorney General-designate Michael Mukasey.  I watched the first hour of the hearing on C-Span 3, but then got bored because I did not hear any sentencing talk, and now I am wondering if any of the questioning involved sentencing issues.

Booker and possible Booker fixes, crack sentences, mandatory minimums, federal death penalty policy, lethal injection litigation, extreme sentences for white-collar and non-violent offenses and national sex offender policies all seem like topics very worthy of exploring with the likely next AG.  Did any of this stuff come up?

UPDATE:  Thanks to S.cotus for live-blogging a few sentencing-related highlights in these comments.  Now I am just waiting for federalist to add his perspective given that, as Stephen Colbert has explained, "reality has a well-known liberal bias."

October 17, 2007 in Who Sentences | Permalink | Comments (5) | TrackBack

Making sense of the Second Circuit's second thoughts on Booker

Last week I noted here that the Second Circuit issued this revised decision in its important variance case of United States v. Cavera (previously discussed here). Helpfully, the New York Law Journal has this new article, entitled "Mindful of 'Booker,' 2nd Circuit Revises Sentencing Opinion," which provides some background on the revised Cavera ruling.  Here are some interesting particulars:

In June, Judges Richard Cardamone, Guido Calabresi and Rosemary Pooler reversed Eastern District of New York Judge Charles Sifton, who had gone above the guidelines range of 12-18 months and given two years in prison to Gerard Cavera after he pleaded guilty to conspiracy to deal in and transport firearms.

Sifton's mistake, the panel said in June, was that he considered New York City's population density and reasoned that gun trafficking there required a heavier sentence.  The circuit panel, in a decision by Cardamone, initially said Sifton's approach ran counter to one of the chief purposes of the guidelines -- to reduce disparity in sentencing across the nation's federal districts.

But in a new opinion released Oct. 11 in United States v. Cavera, 05-4591-cr(L), the court said its June opinion "prompted comments from several members" of the circuit, so it was withdrawing the old opinion as well as a concurring opinion by Calabresi.  "The best I can understand is that, after they issued the first decision, other judges looked at this and said, 'Look, this is a critical issue for sentencing purposes and the decision itself doesn't really cover all the issues that are necessary to set precedent,'" said Jeffrey Rubin, who represented Cavera.

The circuit's new opinion does not change the result -- a remand to Sifton for resentencing. However, Rubin said it is less sweeping in its language than the first ruling and focuses more on limiting the holding to the facts of Cavera's case.   In the June opinion, for example, the court said the sentence was unreasonable because the lower court relied on "community-specific characteristics," such as population density.  But in the second opinion, the circuit states, "Under the circumstances of this case, the district court's reliance on the simple fact of population density to impose a non-guidelines sentence constitutes legal error and rendered the defendant's sentence unreasonable."

I suppose this judicial history suggests that, at least in the Second Circuit, it may sometimes be reasonable for a sentencing court to rely on "community-specific characteristics" after Booker.  Very interesting.

October 17, 2007 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Overcrowding problems in the Nutmeg State

As detailed in this New York Times article, Connecticut is yet another state on a ever-growing list that is struggling with its ever-growing prison population.  Here are a few specifics from the piece:

Cubicles built for four are crammed with eight inmates, and enclosed areas known as dollhouses where inmates once played cards and wrote letters now hold 14 bunk beds.  The corridors are lined with more beds. 

Each large room at the Willard-Cybulski Correctional Institution once had 50 beds and now has 118. The dual prison, one part in Enfield and the other in Somers, is part of a system so overcrowded that it tests the state's resolve to get tough on criminals. Correction officers who work at this dormitory-style, minimum security prison say the cramped conditions give them little room to maneuver and little hope of keeping small problems from turning into big ones....

The arrest in July of two parolees in the grisly murders of a mother and her two daughters in Cheshire, followed closely by a carjacking involving a parolee, touched off a wave of official responses that were intended to address flaws in the criminal justice system, but that also made crowded prisons even more crowded. Gov. M. Jodi Rell ordered the Department of Correction to temporarily stop granting parole to violent offenders, a class that now includes home burglars. "Security comes first," the governor said in a Sept. 21 statement.

In addition, prosecutors are holding out for stiffer plea bargains, and judges are imposing longer sentences.  Ms. Rell has promised a top-to-bottom review of the state’s criminal justice system, but in recent weeks, as policy makers have been discussing the issue, pressure has been building. The union that represents two-thirds of the 7,000 employees at the Department of Correction said Monday that its members counted 821 temporary beds — they resemble plastic toboggans with mattresses — in use in 11 of the state’s 18 prisons one night last week.  "My members believe we're already at a crisis population," said Jon Pepe, president of a correction officers union.  "We're only managing them because the population is letting us manage them."

UPDATE:  Anyone interested in more background and discussion of the problems of overcrowding Connecticut should be keeping up with the blogging done by Gideon at "a public defender," who has been following these overcrowding problems very effectively.

October 17, 2007 in Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack

The crazy, Baze-y lethal injection uncertainty continues

Monday brought a last minute state court stay of a scheduled execution in Nevada (discussed here).  But then we got rulings in Georgia and Virginia which keep scheduled executions on track: in the Virginia case, as detailed here, the Fourth Circuit refused to grant a stay; in the Georgia case, as detailed here, the state Supreme Court refused to grant a stay.  But, then, late Tuesday, the US Supreme Court refused to vacate a stay granted by the Eighth Circuit in an Arkansas case.  Here is the notable text of the SCOTUS order in the Arkansas case:



The application to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Eighth Circuit on October 11, 2007, presented to Justice Alito and by him referred to the Court, is denied.

Justice Scalia, dissenting.

I vote to grant the State’s application to vacate the stay because in my view the decision of the Eighth Circuit was based on the mistaken premise that our grant of certiorari in Baze v. Rees, ___ S. Ct. ___ (2007), calls for the stay of every execution in which an individual raises an Eighth Amendment challenge to the lethal injection protocol.  The grant of certiorari in a single case does not alter the application of normal rules of procedure, including those related to timeliness. In this case, Jones’s challenge to the lethal injection protocol, which was brought nine years after his conviction and sentence became final, was dilatory.

October 17, 2007 in Death Penalty Reforms | Permalink | Comments (15) | TrackBack

NYTimes coverage of very young lifers

20071017_teenage_190_1Writing in the New York Times, Adam Liptak has this potent new article discussing offenders serving life terms for crimes committed as very young teenagers.  Here are excerpts from a piece that is part of a new series "that will examine commonplace aspects of the American justice system that are actually unique in the world":

In December, the United Nations took up a resolution calling for the abolition of life imprisonment without the possibility of parole for children and young teenagers. The vote was 185 to 1, with the United States the lone dissenter.

Indeed, the United States stands alone in the world in convicting young adolescents as adults and sentencing them to live out their lives in prison. According to a new report, there are 73 Americans serving such sentences for crimes they committed at 13 or 14....

The group that plans to release the report on Oct. 17, the Equal Justice Initiative, based in Montgomery, Ala., is one of several human rights organizations that say states should be required to review sentences of juvenile offenders as the decades go by, looking for cases where parole might be warranted.

But prosecutors and victims’ rights groups say there are crimes so terrible and people so dangerous that only life sentences without the possibility of release are a fit moral and practical response.

According to a 2005 report from Human Rights Watch and Amnesty International, 59 percent of the more than 2,200 prisoners serving life without parole for crimes they committed at 17 or younger had never been convicted of a previous crime.  And 26 percent were in for felony murder, meaning they participated in a crime that led to a murder but did not themselves kill anyone.

The new report focuses on the youngest offenders, locating 73 juvenile lifers in 19 states who were 13 and 14 when they committed their crimes.  Pennsylvania has the most, with 19, and Florida is next, with 15. In those states and Illinois, Nebraska, North Carolina and Washington, 13-year-olds have been sentenced to die in prison.  In most of the cases, the sentences were mandatory, an automatic consequence of a murder conviction after being tried as an adult.

October 17, 2007 in Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (9) | TrackBack

October 16, 2007

Cleveland rocks!

Inc_cle_bos I am heading out to attend in person (after a long drive) a great aspect of the great month of October.  Though commentors are welcome to try to find a sentencing angle in my evening plans, they are also welcome to debate here whether the BoSox should be pitching Josh Beckett on 3 days rest. 

October 16, 2007 | Permalink | Comments (2) | TrackBack

In the SL&P mailbag: " Unequal under Law"

Book_cover I am not quite sure whom to thank, but I am grateful for getting a free copy of this new book from The University of Chicago Press by Doris Marie Provine entitled "Unequal under Law: Race in the War on Drugs."  Here is the blurb from the publisher:

Race is clearly a factor in government efforts to control dangerous drugs, but the precise ways that race affects drug laws remain difficult to pinpoint. Illuminating this elusive relationship, Unequal under Law lays out how decades of both manifest and latent racism helped shape a punitive U.S. drug policy whose onerous impact on racial minorities has been willfully ignored by Congress and the courts.

Doris Marie Provine’s engaging analysis traces the history of race in anti-drug efforts from the temperance movement of the early 1900s to the crack scare of the late twentieth century, showing how campaigns to criminalize drug use have always conjured images of feared minorities.  Explaining how alarm over a threatening black drug trade fueled support in the 1980s for a mandatory minimum sentencing scheme of unprecedented severity, Provine contends that while our drug laws may no longer be racist by design, they remain racist in design.  Moreover, their racial origins have long been ignored by every branch of government. This dangerous denial threatens our constitutional guarantee of equal protection of law and mutes a much-needed national discussion about institutionalized racism — a discussion that Unequal under Law promises to initiate.

Some recent related posts:

October 16, 2007 in Drug Offense Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

The Sentencing Project urges retroactivity of USSC crack amendment

As detailed here, the Sentencing Project "has submitted a letter to the United States Sentencing Commission urging it to apply retroactively a crack cocaine sentencing amendment passed this May to defendants previously sentenced for a crack offense."  The full text of the lengthy letter can be accessed at this link, and here is a snippet:

The Commission has opted to make retroactive every amendment to a drug sentence that could be formulaically applied, i.e., in cases where the district court could calculate the new sentencing range using a simple mathematical equation. The Commission has followed the same pattern since it began requesting public comment in 2000.... [The crack amendment] fits squarely in the category of amendments that have been made retroactive.  It can be easily applied by district courts in a formulaic manner. ...

To diverge from its paradigm in this particular instance would be particularly inappropriate given the racial implications of [the crack amendment].  Failing to make the amendment retroactive would perpetuate the already disproportionate effect of the severity of the Guidelines on African American defendants and poor urban neighborhoods.

Some related posts:

October 16, 2007 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

New ABA publication on "Mental Health and Criminal Justice System"

I just received in my in-box this announcement: "The ABA Section of Criminal Justice is pleased to announce the online availability of the Fall 2007 Special Issue of Criminal Justice Magazine, 'The Criminally Mentally Ill', at this link."  The issues looks like a great read from start to finish, and here are some of the feature articles that should be of special interest to sentencing fans:

October 16, 2007 in Offender Characteristics | Permalink | Comments (1) | TrackBack

Even a volunteer can't get executed because of Baze

As covered by media links at How Appealing and this post at CDW, the Nevada Supreme Court prevented a condemned inmate who wished to be executed from being subject to lethal injection.  Here are details from this local news coverage:

Death row inmate William Castillo seemed "very disappointed" Monday night that the Nevada Supreme Court canceled his execution about 90 minutes before he was scheduled to have a lethal injection. "He asked if it was possible to get more medication to calm him," Nevada Department of Corrections Director Howard Skolink said of Castillo's reaction. "He wanted something to take the edge off."

The court convened at 4 p.m. to hear arguments and about 7 p.m. stayed the execution and gave the American Civil Liberties Union and the state attorney general 20 days to file briefs regarding the ACLU's last-minute request that the execution method is unconstitutional because the drugs masks the inmate's reaction, denying news media the First Amendment right to report the actual effects of the injection.  The ACLU petition came on the heels of a U.S. Supreme Court review of the constitutionality of lethal injection methods in a Kentucky case.

Lee Rowland, the ACLU coordinator in Northern Nevada and the lawyer who argued the case, termed the decision "clearly correct legally and morally."...

"The elderly relatives of the victims had hoped for closure, and they didn't get it tonight," Skolink, who told media of the court's decision, said at the prison in Carson City. "The inmate had prepared himself for the execution, and now it will be at least 60 days before he's going to know what happened to him."

Castillo was sentenced to death for the tire-iron beating of Isabelle Berndt, 86, a teacher who lived in Las Vegas.  His female accomplice is serving a term of life with parole.  Two of Berndt's elderly relatives had driven to the prison, were told of the cancellation and never went inside.  Skolink said Berndt's family said they were going to ask the state supreme court and ACLU for their travel expenses for a "trip that need not have been made."

Some recent related posts:

October 16, 2007 in Baze and Glossip lethal injection cases | Permalink | Comments (11) | TrackBack

October 15, 2007

SCOTUS denies cert in death row syndrome case

I missed in the quick review of SCOTUS action today that the Court rejected, yet again, a "death row syndrome" case.  Here are particulars from Lyle Denniston at SCOTUSblog:

The Court refused, for at least the fifth time in the past 12 years, to consider whether it is unconstitutional for a individual facing a death sentence to have to remain on Death Row for a long period of time. The Court declined to hear the case of Smith v. Arizona (07-5847), raising this issue: “Whether the standards of decency have evolved to the point that the execution of a person after confinement on death row for over three decades violates the Eighth Amendment’s prohibition against cruel and unusual punishment?” Justice Stephen G. Breyer, who has voted repeatedly to consider that issue (as has Justice John Paul Stevens), dissented from the denial, and filed a one-page opinion briefly outlined views he had expressed previously.  Justice Stevens did not note his vote this time.  Several times in the past, Justice Clarence Thomas has written opinions arguing that there is no constitutional problem in such prolonged waits for execution.  He did not write on Monday.

More details about the Smith case can be found in this Reuters report.

UPDATE:  Justice Breyer's one-page dissent is available here.

MORE:  And Kent at C&C comments here on Smith.

October 15, 2007 in Death Penalty Reforms | Permalink | Comments (12) | TrackBack

Arizona prosecutor drops child-porn charges after convictions(!) to avoid "disproportionate" sentence

A helpful reader sent me this interesting article from Arizona describing a case in which a local prosecutor has dropped numerous child-porn charges "in the interest of justice" --- after a conviction was obtained on these charges!  Here are the particulars:

Mesa jurors found a defendant guilty on nine counts of child-pornography charges, setting him up for a potential 90-year sentence under Arizona's tough dangerous-crimes-against-children law. But, in a rare move, the Maricopa County Attorney's Office urged a Superior Court judge to drop five counts, leading instead to a 40-year sentence handed down Oct. 5 for Todd Robert Laughlin.

Laughlin, 46, was convicted of possessing three movies and six computer images depicting children performing sex acts.  A motion filed by prosecutor Ronald M. DeBrigida Jr. noted that jurors found Laughlin guilty of all nine counts Aug. 21, but asked Judge Helene Abrams to dismiss five counts, saying that it was "in the interests of justice."  He offered no further explanation.

Deputy County Attorney Daniel Strange prosecuted Laughlin, but the motion was filed by DeBrigida, a supervisor in the office.  Maricopa County Attorney Andrew Thomas was unavailable for an interview but released a statement. "Upon further review of the facts in this case, I concluded that the mandatory 90-year sentence facing the defendant was disproportionate to the offenses he was convicted of," Thomas' statement said. "As a result, our office exercised its prosecutorial discretion in dismissing five of the criminal counts, so that the mandatory sentence now will be 40 years in prison," it said.

Barnett Lotstein, one of Thomas' top assistants, said his office tried Laughlin on nine counts to prove a pattern of child pornography, removing any possible defense that he accidentally accessed child pornography on the Internet. "It's not uncommon to look at a case again and re-evaluate it," Lotstein said. "He (Thomas) is not being soft. Forty years is a harsh sentence. Murderers serve 25 years."

Regular readers will recall that similar stacked child-porn charges against a former Phoenix high school teacher, Morton Berger, ultimately led to Berger receiving a 200-year prison sentence (basics here, commentary here and here).  Though the Supreme Court denied cert in Berger (details here and here), Mr. Berger likely has a habeas claim in the works; the statements from the prosecutors in this other case should provide some help for his sentencing claims.

October 15, 2007 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (32) | TrackBack

Ninth Circuit opines on sentencing practices

The Ninth Circuit has an intriguing little sentencing ruling today in US v. Saeteurn, No. 06-10401 (9th Cir. Oct. 15, 2007) (available here).  Here is how it starts:

This case deals with sentencing practice. Specifically, is the sentencing judge required to resolve disputes regarding facts recited in the Presentence Investigation Report (“PSR”), when those facts do not affect the term of imprisonment imposed, but may affect how the sentence is served, including a possible early release from prison?  We hold that there is no such requirement upon the sentencing judge.  We also consider whether the sentencing judge imposed a reasonable sentence in this case.  We conclude that he did.

UPDATE:  Steve Kalar has a new post here at the Ninth Circuit Blog on Saeteurn.  Here is how it starts:

"Close enough for government work" is close enough for the Ninth in a disappointing decision.  See United States v. Saeteurn, __ F.3d __, 2007 WL 2983806 (9th Cir. Oct. 15, 2007).  In Saeteurn (written by Judge Bea), the Court tolerates disputed and erroneous information in a PSR, unresolved by the district court -- despite the fact that this error will have a profound impact on the defendant's conditions of confinement.  A very troubling decision that calls out for en banc review.

October 15, 2007 in Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Supreme Court taking in some laundry

Though not technically a sentencing case, the Supreme Court's decision today to grant cert to explore what it means to "launder" money in Cuellar v. US (06-1456) certainly could have lots of sentencing ripples.  Moreover, it provides more evidence that this Term of the Roberts Court may create its biggest headline through its work on its criminal docket.

Some recent related posts about the SCOTUS docket:

October 15, 2007 in Who Sentences | Permalink | Comments (0) | TrackBack

Effective coverage of new compassionate release guidelines

The Los Angeles Times this morning has this effective piece discussing the US Sentencing Commission's new (and potentially very important) compassionate release guidelines.  Here are excerpts:

Every year, about a dozen of more than 200,000 inmates in federal custody around the country have their sentences commuted for health reasons.  The actions are part of a safety valve included in an otherwise tough law enacted by Congress in 1984 that stiffened sentences in federal prison and abolished parole.  As interpreted by prison officials, the idea is to give the terminally ill -- and those so profoundly disabled that they can no longer care for themselves -- an opportunity to have their sentences commuted.  The provision -- dubbed "compassionate release" by the government -- gives the inmate a chance to die at home or among loved ones, and the government a chance to pass along some of the often heavy costs of incarcerating and caring for sick prisoners.

But advocates for inmates say the way the statute is actually carried out is anything but compassionate. Few terminally ill inmates are approved for release, and the bureaucracy is such that even when people are approved, they often die before they get out.  The advocates also contend that prison officials have misconstrued the original intent of Congress and interpreted the grounds for release much too narrowly.

Now, in a departure from the tough sentencing policies that it has legislated for more than two decades, Congress is poised to allow guidelines to go into effect starting Nov. 1 that would give federal judges much greater power to release federal inmates.  The new guidelines would be a victory for advocacy groups that have been seeking more lenient treatment for years.  They would also put the federal government ahead of a movement in which a number of states, including California, have sought to expand their early-release laws.

But whether the Bureau of Prisons will go along is far from clear. Although compassionate releases must be ordered by federal judges, the Justice Department's prisons bureau acts as the gatekeeper in bringing early-release requests to the courts. A Justice Department official last year called the proposed guidelines "an excess of permissiveness" that could be "an incitement to prisoners" to file lawsuits. 

The issue could present an early test for Atty. Gen.-designate Michael B. Mukasey, who faces a confirmation hearing in the Senate this week.  The new guidelines, developed by the U.S. Sentencing Commission, would empower judges to commute sentences in "extraordinary and compelling" circumstances. 

Some legal experts argue that the original intent of the law was to cover health concerns and a range of purposes such as rewarding prisoners for acts of heroism or assisting the government, giving them the benefit of later changes in applicable laws, or eliminating disparities in sentences they received compared with co-defendants. One of the proposed guidelines would allow for early release of incarcerated women with minor children in case of death or incapacitation of relatives capable of caring for the children.  Prison officials decline to say whether they will now support a more generous approach to early release.

October 15, 2007 in Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

October 14, 2007

USSC schedules public hearing on crack amendment retroactivity

As noted on the US Sentencing Commission's website, the "Commission has scheduled a public hearing for November 13, 2007 at Georgetown University Law Center ... regarding whether Amendment 9 pertaining to offenses involving cocaine base ("crack") and Amendment 12 pertaining to certain criminal history rules ... should be applied retroactively to previously sentenced defendants."  This official notice provides a bit more background and details on the hearing.

This should be a very interesting hearing, in part because it deals with a very important issue:  as this recent USSC analysis details, the Commission's research "estimates that 19,500 offender sentenced between October 1, 1991 and June 30, 2007 ... would be eligible to seek a reduce sentence if the Commission were to make the 2007 crack cocaine amendment retroactive."

Some recent related posts on crack sentencing:

October 14, 2007 in New USSC crack guidelines and report | Permalink | Comments (2) | TrackBack

Is faith the best thing to happen to prisons since ... the faithful started prisons?

Thanks to this post at C&C, I noticed this long AP article entitled "Faith-Based Prison Programs Flourish."  The whole piece is a must-read, and here are some excerpts:

Killer-turned-artist Manny Hernandez on the prison where he's finishing an eight-year term: "It's a blessing to be here." Fellow murderer and inmate Raymond Hall likens it to heaven. "I love this place," says their warden, Cynthia Tilley. "It's so calm."  They're praising the Carol Vance Unit, founded in 1997 on the outskirts of Houston. It's the oldest of a rapidly growing number of faith-based prison facilities across the nation. 

Even as they proliferate, fueled by the fervor of devout volunteers, these programs are often criticized. Evidence that they reduce recidivism is inconclusive, and skeptics question whether the prevailing evangelical tone of the units discriminates against inmates who don't share their conservative Christian outlook.  However, evidence is strong that violence and trouble-making drop sharply in these programs, and they often are the only vibrant rehabilitation option at a time when taxpayer-funded alternatives have been cut back. 

Inmates at Vance offer another compelling argument.  Unlike many of America's 2 million prisoners, they feel they are treated with respect. They have hope. "A bunch of cats in prison, they never had anyone show them love — even their mother and father," said Anzetta Smith, who served 18 years for attempted murder before graduating from Vance this year. "You get in the program, and everybody shows you love."

Impressed by the Vance operation, Texas officials have opened a dozen faith-based dorms elsewhere in the state, accommodating some 1,300 inmates.  At one dorm, at the maximum-security Allred prison near Wichita Falls, infractions by the inmates dropped more than 90 percent once they entered the program....  "In my other prison, on a daily basis there was rape, drugs," said Raymond Hall, who was convicted at 16 of murder and hopes to complete his 15-year sentence in early 2009.  "When you come to Carol Vance, it's like a load is lifted. It's like heaven."...

Elizabeth Alexander, director of the American Civil Liberties Union's National Prison Project, has qualms about whether the faith-based programs are fair to non-Christian inmates but hesitates to criticize them because they fill a void. Two decades of tough-on-crime policies have sharply reduced the number of rehabilitative prison programs, she said, and volunteer-driven religious initiatives offer states a low-cost way to meet some of the demand.

In all, at least 10 states now have faith-based prison dorms.  The Corrections Corporation of America, which operates private prisons, has separate "faith pods" housing about 1,660 inmates at 24 prisons in 13 states. "The inmates have far fewer discipline issues," said CCA's John Lanz.

While disciplinary trends have been easy to track, it's been harder to compile data proving that faith-based programs succeed at their core mission — reducing recidivism.  Nationally, federal experts estimate that two-thirds of inmates released from state prisons are re-arrested for serious offenses within three years, and 52 percent go back behind bars.

Proponents of faith-based programs insist they can achieve lower rates. But supportive data remains scarce, and some skeptics say the programs "cherry-pick" motivated inmates who would be less likely to re-offend under any circumstances. Only about 10 percent of the inmates released from Florida's faith-based prisons have been reincarcerated.  But an independent study last year also found very low recidivism among Florida inmates with similar characteristics who didn't go through the faith program. Similarly, proponents of the InnerChange program at Vance have touted a 2003 study asserting that only 8 percent of its graduates returned to prison.  But critics belittled that finding, saying it measured recidivism only for inmates who completed the program and got jobs, not for the larger number who dropped out and had a high recidivism rate. "It's not that these programs are a bad idea," said Dan Mears, a Florida State University criminologist. "But there's no good evidence that they work."...

Prison Fellowship's president, former Virginia attorney general Mark Earley, said any move to curtail evangelicals' volunteer work in prisons would undermine the prospects for greater nationwide emphasis on rehabilitation. "If you excluded faith-based groups, you're excluding the largest number of people willing to be involved," he said. "There's not a whole lot of other people lining up at the prison doors."

Some related posts on faith-based prison programs:

October 14, 2007 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Persistent strong public support for the death penalty

Pr071012ci In my recent post explaining my agnosticism regarding the death penalty (which generated a fantastic comment thread), I noted that broad public support for the death penalty was one reason have a hard time being categorically opposed to this punishment.  Coincidentally, this weekend the Gallup Poll released its annual survey on public support for the death penalty and it "shows no diminution in Americans' strong support for the death penalty in cases of murder."   Specifically:

The Oct. 4-7 poll indicates that 69% of Americans respond "yes" when asked this question: "Are you in favor of the death penalty for a person convicted of murder?" This level of support for the death penalty is generally in line with the level of support that Gallup has measured in 13 polls featuring this question since 1999.

This post at Crime & Consequences talks about the Gallup results and other polling questions about the death penalty.

The Gallup press release about its findings has lots of interesting particulars.  I found especially interesting the fact that though "support for the death penalty varies some within different subgroups of the American population," this variations was not nearly "as much as might be expected."

October 14, 2007 in Death Penalty Reforms | Permalink | Comments (23) | TrackBack

If you build it (guidelines) well, they (judges) will come

As this local article from Alabama highlights, sentencing judges are eager to comply with sensible sentencing regulations.  In addition, as the story documents, when sentencing guidelines are truly sensible, prosecutors often complain about them more than defense attorneys.  Here's are excerpts from the article:

Trial judges in the state surprised the Alabama Sentencing Commission by overwhelmingly making use of voluntary sentencing guidelines that went into effect a year ago.... The commission reported earlier this month that judges considered the guidelines in 86 percent of cases.

The guidelines were created to reduce prison overcrowding and give judges more options. They tighten the range of prison time for certain offenses and reduce the sentences for property crimes. To use the sentencing guidelines, judges and attorneys fill out a worksheet devised by the sentencing commission with information such as age and the number and severity of previous crimes. The worksheet helps determine the length of sentence and whether an alternate sentence, such as drug court, is appropriate. The compliance figures took into account only how many times judges used the worksheets, not how often they followed the recommendation....

Not everyone is a fan of the guidelines, including Chris Hargett, the senior assistant district attorney in Tuscaloosa. “I’ve never been sold on the idea of guidelines,” he said....  Hargett said that prisoners usually receive shorter sentences when judges use the guidelines....

One goal of the guidelines is to create equality in sentencing so people who commit the same crimes in different areas of the state spend about the same time in prison. Hargett believes that the standards, in this first year, have had the opposite effect, since not all judges are using them. “There is a greater disparity in sentencing than there was before,” he said. “This leaves me with the feeling that my victims are being shortchanged.”

But retired Judge Joseph Colquitt, a University of Alabama law professor and chairman of the Alabama Sentencing Commission, doesn’t agree. “By using the standards even more frequently than we had anticipated, the judges are helping to reduce disparity in sentencing beyond our initial expectations,” he said. “The elimination of unwarranted disparity in sentencing is a worthy goal, and one that the Alabama Sentencing Commission has identified as a principal objective.”

October 14, 2007 in State Sentencing Guidelines | Permalink | Comments (0) | TrackBack