Sentencing Law and Policy

Cert petition on video victim impact evidence

This new post at SCOTUSblog discusses a very interesting case coming to the Supreme Court concerning victim impact evidence.  Here is the start of the post:

Nearly two decades ago, in Payne v. Tennessee (1991), the Supreme Court held that the Eighth Amendment did not bar the introduction of “victim impact evidence” at the penalty phase of capital trials. The Court held that just as the Constitution gave defendants the right to present evidence designed to avoid imposition of the death penalty, it did not forbid testimony designed to show the victim was a unique human being whose loss left an impact on the survivors and society at large.

At the opening conference at the end of September, the Justices will decide whether to grant review in a case involving whether the Constitution nonetheless places limits on how such evidence may be presented. The petition in Kelly v. California (07-11073) asks whether the presentation of what might be called video scrapbooks – containing photographs and home movie footage of the victim, and, in this case, set to background music – can so prejudice the jury as to deprive the defendant of a fair trial in violation of the Due Process Clause of the Fourteenth Amendment, or create an arbitrary risk of capital punishment in violation of the Eighth Amendment.

AP covers the remarkable story of (my client) Patrick Lett

Long-time readers may recall prior posts about the sentencing and appeals of Sgt. Patrick Lett (many of which are linked below).  As I have said before, I am so very proud to now represent Lett is (along with Douglas Cole of Jones Day), and we have a cert petition still pending before the Supreme Court.  Today the AP has this article about Lett's case, which starts this way:

Patrick Lett returned to south Alabama when he finished an unblemished 17-year Army career, including two tours in Iraq. Then his father died, he couldn't find work to support his two daughters and his life took a wrong turn. Lett pleaded guilty in federal court to cocaine possession for his involvement in a cousin's drug operation and was sentenced in 2006 to five years in prison.

U.S. District Judge William Steele didn't want to order Lett to serve time at all, but he thought the law required it.  Steele noted at the sentencing Lett had led "an exemplary life up until the time of the offenses and even after," when Lett re-enlisted and served another 17 months before his indictment.

Lett, 39, probably would be in prison today if a friend hadn't helped Steele realize that he had misunderstood the sentencing requirements.  Steele changed the prison term to three years of supervised release, and Lett was free to go, the judge's honest mistake apparently cleared up.

But that didn't satisfy prosecutors, who appealed the lighter sentence on the grounds that Steele didn't have the authority to change the initial five-year sentence.  The 11th U.S. Circuit Court of Appeals agreed, saying Steele couldn't undo his own error.  The bizarre scenario may end with the former soldier reporting to prison unless the U.S. Supreme Court agrees to take on the case and decide whether a judge can go back and change a mistakenly issued sentence.

Some related posts on the Lett case:

• Should prior military service reduce a sentence?
• My amicus effort to support our troops
• NLJ coverage of Patrick Lett appeal
• Technicality leads Eleventh Circuit to require 5-year mandatory for veteran
• Petition for rehearing in US v. Lett
• The amazing federal sentencing story of Sgt. Patrick Lett
• The cert petition in US v. Lett (and amici encouragement)

Governor Palin, crime and punishment

Last week I had this post reflecting on, and seeking comments concerning, what Senator Obama's selection of Senator Biden meant for how the Democrats would approach crime and punishment issues this fall.  Now that John McCain has now made his surprising VP choice, I am starting to wonder about what this decision could mean for the Republican approach on these issues might be. 

Like most everyone else in the continental 48, I knew very little about Governor Sarah Palin before this morning.  But the fact that she, as noted here, is a "lifetime member of the NRA" could prompt more interesting post-Heller debate about the reach and application of the Second Amendment.  (I am already curious whether Governor Palin has a view about whether a person previously convicted of a domestic violence misdemeanor should be federally prosecuted simply for possessing a hunting rifle as in this federal case from Wisconsin.)

Notably, this Denver Post blog is calling Palin the "libertarian VP candidate."  I am not sure this label really fits, but I genuinely hope Palin might have a libertarian streak when in comes to the so-called "war on drugs" and similar criminal justice issues.  I hope we will find out this fall (although I continue to expect the MSM will continue to ignore important crime and punishment issues).

Some related posts on Campaign 2008:

• Senator Biden, crime and punishment
• Hey, big spender: John McCain's ambitious (and expensive?) crime-fighting agenda
• Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?
• A good question about prison nation ... dodged
• Hoping for a presidential town hall on crime and punishment
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• How the media can do better: ask the candidates tough crime and punishment questions
• FAMM suggests sentencing questions for the candidates
• Will any Prez candidate promise to get us out of a failed war ... on drugs?

Kiddie porn killed the radio star

This local story about a high-profile federal child porn sentencing case made it impossible to avoid linking to the great first video ever shown on MTV.  Of course, the specifics of the sentencing are no joking matter for anyone involved:

Bernie Ward, one of the Bay Area's most prominent radio talk show hosts for 15 years, was sentenced to more than seven years in prison by a federal judge today for distributing child pornography on the Internet.

Ward, 57, pleaded guilty to the felony charge in May and admitted sending between 15 and 150 pornographic images by e-mail, which he maintained were for a research project.  Chief U.S. District Judge Vaughn Walker in San Francisco imposed a sentence of seven years and three months, rejecting a defense plea for the minimum five-year term required by federal law.  Prosecutors had sought a nine-year term....

Ward spent 24 years with KGO-AM in San Francisco, first as a reporter and later as the host of a talk show on news and politics that ran three hours every weeknight. A former Roman Catholic priest, he also hosted "God Talk," a Sunday morning program that discussed religious issues....

Ward was charged after a woman in Oakdale (Stanislaus County) contacted police in 2005 and said an ex-priest, later identified as Ward, had been having sex chats with her by e-mail and had sent her a photo showing child pornography. Police got a search warrant for the online account and found about 100 images showing minors engaged in sexually explicit conduct, prosecutors said in court papers.

Ward's lawyer, Doron Weinberg, described the online conversations with the woman as role-playing. Ward has said he downloaded the images as part of his research for a proposed book on hypocrisy among Americans who preach morality. 

Prosecutors said they had evidence that Ward had shared graphic images of child sex with a group of 10 people for about a year. Ward's motive and intent were irrelevant to his guilt under federal law, which makes possessing, receiving or distributing child pornography a felony punishable by at least five years in prison.

BET special on felon disenfranchisement issues

As detailed in this item from the Sentencing Project, BET News has a special segment running this weekend on felon disenfranchisement.  Here is a description of the program:

In “Locked Out: Ex-Cons and the Vote,” BET News correspondent Samson Styles investigates how disenfranchisement laws affect African-American turnout at the polls.  As one of the 5.3 million people in America who has lost the right to vote due to a criminal conviction, Styles sets out on a journey to regain his own voting rights, explore the state-to-state differences of disfranchisement laws, and investigate the national effects of such legislature. "Locked Out: Ex-Cons and the Vote" airs Friday at 11:30 p.m. and Sunday at 1:30 p.m.

Another (too?) brief opinion rejecting misdemeanant's Second Amendment claim

A helpful reader sent me a copy of the latest lower court ruling that declares that the constitutional right recognized by the Supreme Court in Heller is categorically unavailable to another group of individuals.  The decision this time comes in US v. Skoien, No. 08-rc-19-bbw (W.D. Wis. Aug. 27, 2008) (available for download below).  Here are some key passages from the opinion:

Defendant Steven M. Skoien has moved to dismiss the indictment against him on the ground that 18 U.S.C. § 922(g)(9) violates the Second Amendment to the Constitution of the United States. Defendant is charged in a one-count indictment with possessing three firearms after having been convicted of a misdemeanor crime of violence, in violation of § 922(g)(9)....

Defendant argues [that] Heller requires courts to examine any prohibition on gun possession to determine whether it is precisely tailored to serve a compelling governmental interest....

Defendant may be correct about the standard to apply to any legislative effort to restrict firearms possession, but I need not take up the issue in this case. Even assuming that the highest standard applies, as defendant proposes, § 922(g)(9) passes muster. It is narrowly tailored: it applies only to persons who have been found guilty by a court of domestic violence. These persons have shown that it is they and not any outside intruders that pose the greater danger to their families.  The government has a compelling interest in protecting the families of such persons.  The fact that the firearm defendant was charged with possessing was a hunting rifle does not change this analysis.

As the government notes in its brief, the [Heller] Court’s statement about “longstanding prohibitions on arms possession by felons” is an explicit recognition of the fact that persons may forfeit their Second Amendment right to bear arms along with other rights when they commit serious crimes.  Congress has made the judgment that one of those “serious crimes” is domestic violence serious enough to result in a misdemeanor conviction.

Download skoien_motion_to_dismiss_opinion.pdf

Of course, I told my students in class just today that a legislature's (and a prosecutor's) choice to label a particular offense a misdemeanor generally means that the offense is not considered a "serious crime."  But apparently these labels are of no big concern when it comes to restricting the reach of the Second Amendment.  Indeed, I suppose if DC is still eager for broad gun control, even after Heller it can just make the judgment that anyone convicted of a traffic offense or any other public nuisance misdemeanor is a kind of serious criminal who should not have any rights to any kind of gun.

Some related post-Heller posts:

• District Court rejects Second Amendment claim from misdemeanant
• Updates on post-Heller Second Amendment litigation
• Justice Scalia sells out felon gun rights, but on what basis exactly?
• Certain post-Heller uncertainty: lots of lower court Second Amendment litigation
• Prosecutorial headaches after Heller
• One (of many?) post-Heller motion to dismiss felon in possession federal indictment
• Former SG Ted Olson suggests Heller could impact broad prohibitions on felon gun rights
• Might the ACLU be a strong supporter of all persons' gun rights?
• The post-Heller litigation headaches (and judicial cut-backs) have begun
• Another review of felon efforts to assert Second Amendment rights
• An argument against — and for!— felon gun rights

Second Circuit upholds Sixth Amendment KPMG ruling

In a significant ruling that will sure warm the hearts of all white-collar defense attorneys, the Second Circuit today has affirmed the Judge Lewis Kaplan's groundbreaking right-to-counsel Sixth Amendment ruling the the KPMG case.  The decision in US v. Stein, No. 07-3042 (2d Cir. Aug. 28, 2008) (available here), starts with this summary:

The United States appeals from an order of the United States District Court for the Southern District of New York (Kaplan, J.), dismissing an indictment against Defendants-Appellees, thirteen former partners and employees of accounting firm KPMG, LLP.   We affirm the district court’s ruling that the government deprived Defendants-Appellees of their right to counsel under the Sixth Amendment by causing KPMG to place conditions on the advancement of legal fees to Defendants-Appellees, and to cap the fees and ultimately end them. Because the government failed to cure the Sixth Amendment violation, and because no other remedy will return Defendants-Appellees to the status quo ante, we affirm the dismissal of the indictment. In a separate summary order.

UPDATE:  Here is an early AP report on the Second Circuit's ruling.

ANOTHER UPDATE:  Here is commentary on Stein (KPMG) from White Collar Crime Prof Blog.

Awesome ABA conference on sentencing

I just got this official brochure for a conference being put on by the ABA this October titled, "Sentencing Advocacy, Practice and Reform Institute."  I was excited when invited to participate in the conference earlier this year; I am now even more excited to be able to attend now that I see the extraordinary set of topics and participants the ABA Criminal Justice Section has put together. 

Here are just some of the topics/panels that look great:

• The State of the Sentencing Union: Rates of Incarceration, Sentencing Trends, Racial Issues, A Brief Overview of Alternatives to Imprisonment and Recent Legislation
• Alternatives to Imprisonment: Mediation, Diversion, Drug Courts
• Update on Sentencing Law: Supreme Court, Appellate, Legislation (N.B.: this is my panel, so I am biased when I say it looks great, though I am really commenting on the other panelists)
• Sentencing Practice and Procedure: Plea Negotiations, Charging Practices, and Charge-Based Sentencing
• Sentencing in White Collar Cases: Sarbanes-Oxley, A Five Year Retrospective
• The Future of Federal Sentencing: Data on Advisory Guidelines and the Need for Simplified Guidelines Legislation
• The Second Chance Act and Reentry Issues: What Works to Reduce Recidivism?

Kudos to the ABA planning committee for putting together such an amazing and timely conference covering nearly all of my favorite topics.

Jack Abramoff getting cooperator's benefit

This story, headlined "DOJ Seeks Reduced Sentence For Abramoff In D.C. Corruption Case," highlights in a high-profile setting the sentencing benefits of cooperating with the feds:

Federal prosecutors are seeking a reduced sentence for imprisoned GOP lobbyist Jack Abramoff in a Washington, D.C., corruption case, citing his his "significant and useful" cooperation against other individuals involved in the scandal that brought down the one-time K Street superstar.

Prosecutors are seeking only a 64-month sentence for Abramoff in the D.C. corruption case, far less than the minimum 108 months behind bars he could have received under federal sentencing guidelines. Abramoff, who is already serving a 70-month prison term in a Florida fraud case, is scheduled to be sentenced Sept. 4 in the D.C. case.

The Washington Post is reporting that Abramoff "would serve no more than another three years and three months in prison, not accounting for credit for good behavior awarded by the Bureau of Prisons," meaning he could be out by late 2011, and possibly a year earlier if Abramoff's attorneys are successful in winning further reductions.

Abramoff's assistance to DOJ and FBI investigators "has exposed significant misconduct by others in and out of public office and revealed to law enforcement officials and the public the manner and means used by government officials to game the system for private advantage in violation of criminal, regulatory, and ethical laws and rules," prosecutors said in a pre-sentencing memo filed today. According to Abramoff's attorney. their client has spent more than 3,000 hours meeting with more than 100 federal investigators.

New developments or data from the USSC?

The US Sentencing Commission has a public meeting scheduled for Thursday, August 28, 2008, at 1:45 pm.  But this official agenda does not give any indication that anything notable is likely to happen, though an outsider can never be sure based on the limited public materials the USSC typically puts out before these types of meetings. 

I am cautiously hopeful that, in conjunction with this scheduled public meeting, the USSC might have some more post-Gall data to share.  The last official data run, set forth in this report, suggested that Gall and Kimbrough were impacting federal sentencing outcomes.  But that report included only sentencings through early May; I am wondering which data trends reflected in the first six month of post-Gall data may have persisted (or grown more significant) through the summer sentencing months.

Some related posts:

• What does the future hold for the US Sentencing Commission?
• USSC proposes latest priorities and requests public comments
• Acquitting and downloading some additional USSC priorities
• Developing AG and USSC short lists

The man behind "smiling bob" not likely smiling after federal sentencing

As detailed in this local article, the man who helped give us the character "smiling bob" had a downer federal sentencing today.  Here are the details:

A federal judge today sentenced the founder of Berkeley Premium Nutraceuticals to 25 years in prison and ordered that he and the company pay back more than $500 million. Berkeley distributes various products alleged to boost energy, manage weight, reduce memory loss and aid sleep.  The company's main product, Enzyte, which promises sexual enhancement, has ads featuring "Smiling Bob," a happy man with an exaggerated smile.

A federal jury convicted the company, founder Steve Warshak and several others of participating in a massive scheme that included fraud, money laundering and bogus claims about the effectiveness of Berkeley’s products. U.S. District Judge S. Arthur Spiegel ordered Warshak, 42, to begin serving his sentence within 30 days.

Spiegel said it was impossible to calculate exactly how much money was lost by customers, so he accepted a figure based on how much Warshak and the company took in. "This is a case about greed," Spiegel said as he reviewed the case. "Steven Warshak preyed on perceived sexual inadequacies of customers."  Spiegel said one aspect of the fraud relied on the reluctance of customers to come forward, which would mean admitting they ordered the sexual enhancement pills. "I don't see any evidence of remorse or concern for anyone but himself," Spiegel said.

Among interesting aspects of this case was the district court's decisions on bail pending appeal:

Spiegel denied Warshak's request to remain free on bond pending appeal, but gave him 30 days to wrap up personal business and report to prison.

Warshak's mother, Harriet Warshak, was sentenced to two years in prison. She was convicted of conspiracy and other charges. Spiegel allowed her to remain free pending appeal and acknowledged that she is 75, has cancer and likely will never be incarcerated because of the time it takes appeals to work through the courts.

Judge Bright gives shout out to Second Chance Act

Concurring today in US v. Wessels, No. 07-3208 (8th Cir. Aug. 27, 2008) (available here), Judge Bright gives a little attention to the Second Chance Act.  Here are snippets from his opinion:

I concur in the opinion in this case but I write separately to call attention to the Second Chance Act of 2007. Pub. L. No. 110-199, 122 Stat. 657 (April 9, 2008). In this Act, the Congress has directed a shift from policing those on parole to rehabilitating them. The parole system now bears an increasing special obligation to help federal offenders successfully reenter into society.

Any time a person serves a prison sentence, begins parole or supervised release, and then, as in this case, violates a provision of release that may justify reimprisonment, the correctional system has failed.  In making this statement, I do not mean to comment adversely on probation officers.  I do, however, call attention to this new wind that is refreshingly blowing into the correctional systems in this country.

Title II(C)(1) of the Second Chance Act aims to improve the reentry of federal offenders into society with the help of probation officers....

It is clear that the spirit of the Second Chance Act of 2007 intends that the entire penal systems, state and federal, work towards the rehabilitation of prisoners for the purpose of reducing recidivism....

The Second Chance Act of 2007 therefore revises the duties of parole and probation officers, focusing much of their attention to the rehabilitation of those who have served prison sentences. Such a recent but important development must be underscored so that the Act may change the attitudes and focus of probation from policing parolees and probationers to rehabilitating them.

Some  related posts:

• NY Times editorial on Second Chance Act
• Official coverage of President Bush signing the Second Chance Act
• Some media coverage of the Second Chance Act
• Second Chance Act finally poised to become law
• Second Chance Act (finally!!) passed by Congress
• More on the passage of the Second Chance Act
• Previewing  FSR issue on reentry issues

Wondering what a Justice Clinton might say about sentencing jurisprudence?

Though I have not watched all of the Democratic convention, I think I am right to assert that Senator Hillary Clinton was the first headliner to mention the Supreme Court in her speech.  (Describing the state of the country, she said the Supreme Court is "in a right-wing headlock.")  That fact alone got me thinking again about the (very real?) possibility of a President Obama nominating Senator Clinton to fill an opening on the Supreme Court.

Lots might be said about the political virtues (and vices?) or such a nomination and also about whether the Obama team might encourage pre-election political buzz about this possibility.  (A great retort to the failure to pick/vet Senator Clinton from the Obama team would be that we did not want to prevent her from being available for the first SCOTUS opening.)  Lots also might be said about how a Justice Clinton would approach the future of Roe v. Wade and federal regulatory power. 

But, in this blog setting, I would love reader speculation on a Justice Clinton and sentencing law and policy.  Specifically, how do we think a Justice Clinton would sort out enduring Blakely and Booker issues?  How about death penalty issues or sex offender residency restrictions or severe mandatory minimum sentencing terms?  Of course, we have some sense of what Hillary Clinton the politician thinks about some of these issues, but I do not think we should readily assume a Justice Clinton would take the same approach.

Some related posts:

• Reflections on the politics of SCOTUS and personhood of its members
• Judging, politics, sentencing and elections
• Brave New Justice and sentencing issues
• Developing a SCOTUS short list of district court judges
• Insider myopia and the diverse benefits of a short bench
• Thinking creatively about different SCOTUS short lists

Over four years in prison for failing to register under AWA

This local story reports on another federal sentence for a state sex offender who failed to register and thereby violated the new federal Adam Walsh Act.  Here are the basics:

A Tennessee man convicted earlier this year for failing to register as a sex offender under the Adam Walsh Act has been sentenced to 51 months in federal prison without parole. Tommy Edward LeTourneau, 47, appeared before U.S. District Judge Andrew S. Hanen Tuesday morning where his sentenced was handed down....

LeTourneau's case was the first of its kind to go to trial in the Southern District of Texas under the revised Sex Offender Registration and Notification Act.

Dickensian complaint over NJ prison conditions

A helpful reader alerted me to this news of a new lawsuit concerning New Jersey's prison conditions, which indirectly touches on many economic issues that surround prison nation.  Here are excerpts the article:

Conditions out of Charles Dickens' novel beset the 1,800 inmates at the New Jersey State Prison in Trenton, according to a recent class action lawsuit filed by seven inmates. Indeed, Dickens, who visited the facility in 1842, decried the conditions at the jail, the suit noted.  Sections of the current prison date to the 1860s....

The suit claims that actions of corrections officers, who are in a dispute with the DOC over salary cuts and overtime, exacerbate the problems.  Because of pay cuts, officers have an incentive to make additional money by smuggling in contraband, the suit says.

The suit alleges that officers find bogus reasons to get more overtime, including an August 2006 shakedown where guards claimed to have recovered a handgun at the prison. The suit accuses the officers of smuggling in the gun themselves as a pretext for a three-week search that led to millions in overtime pay....

Gerald Albrecht, 52, a plaintiff who is serving 25 years to life for robbery, called on Corzine to appoint an independent commission to investigate rather than allowing the DOC to investigate itself.

The lawsuit also charges that educational programs and religious programs have been cut, citing a 2006 memo by administrator Michelle Ricci that suspended 36 faith-based activities and told chaplains to reduce their time with inmates by half.

Another reason to believe GPS technocorrections are inevitable

As regular readers know, I view GPS tracking and other (cost-saving?) technocorrections as virtually inevitable as society becomes ever-more acclimated to this kind of criminal justice innovation.  And this local article, headlined "Ankle Monitors Make the Grade in Texas," provides more evidence for my inevitability claims.  Here are excerpts:

It began in Midland as a successful way of keeping kids in school, and now its spreading across the state.  A program in Midland uses ankle monitors to track truant kids, and that has court authorities all over Texas sitting up and taking notice.  The latest city to sign up is San Antonio.

On Monday morning, the Midland County Commissioners Court re-approved the grant of about $200,000 for the tenth year in a row.  With a 95 percent success rate, their phone has been ringing from counties from all over Texas, wanting to know how they can start a similar program.  "If we're getting our kids in school, then everybody benefits," James R. Henry, Program Director of the Alternative Sentencing Program in Midland, said. 

Juvenile offenders from 10-17 years of age qualify for the monitors, but so far, Midland has only used these monitors on Jr. High and High School students....  Depending on their sentencing, students wear the tracking device between 30-180 days. "The student keeps the monitor on for as long as we feel like they need it. If they can show a pattern that they've gotten themselves back in order and attending as required, then we'll take the monitor off," Henry said....

The ankle monitors track where you are and where you've been, but the most surprising thing about this technology isn't the affect is has on the one who wears it, it's the effect that it has on other students.  "One monitor effects 15-20 other students because the students see the monitor on, and they're like, 'Oh, I don't want that. What do I have to do to stay out of Judge Cobo's court?'" Henry said.

But then officials got an unexpected result. "The parent/child relationship was an unseen success for the program, because when we put the child on the monitor, it also requires the parents to have a certain level of accountability," Henry said....  "We saw families, parents, and kids coming closer together after they've been wearing the monitor," Henry said. "And parents have been extremely receptive to the idea. They like it, they see it as something they need in order to get their kids back on track like they should."

NewsWest 9 also spoke with Judge Cobos on Monday and he tells us they can track the student's whereabouts every thirty seconds just by checking their cell phones or computers.  Now that Midland has helped San Antonio get their program underway, officials are hoping it will continue spreading around Texas and even across the U.S.

Some related posts on GPS tracking:

• The inevitability of GPS tracking and cost-saving technocorrections
• Are microchip implants for offenders inevitable?
• UK getting serious about GPS through microchip implants
• A sober (and caffeinated) look at GPS tracking realities
• The practical challenges of sex offender tracking
• Are we willing to pay the costs of (effective?) technocorrections like GPS tracking?
• The devil's in the details of GPS tracking of sex offenders
• Is GPS tracking a better way?
• More on the pros and cons of GPS tracking
• New article examining incapacitation innovations

Will crime and punishment get any attention at the Democratic Convention?

As national thoughts turn from Olympian achievements to political conventions, I continue to keep an eye on matters of crime and punishment.  As noted in this weekend post and by some bloggers, the Biden VP choice has some criminal justice angles.  Moreover, as this WSJ blog post notes, some Obama surrogates on the Sunday morning shows were talking up Joe Biden's purported crime-fighting achievements.  These developments have me now thinking that crime and punishment could get some play in Denver, though I am not sure I will be too keen on the themes that may be stressed.

As regular readers know from a bunch of posts linked below, I am troubled that many issues related to prison nation have gotten no serious attention throughout our seemingly endless 2008 election season.  Though I doubt that either party's convention will change this reality, I will be watching the activities this week in Denver (and next week in Minneapolis) just to see what might be said and what goes unsaid.

Some related posts on Campaign 2008:

• Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?
• A good question about prison nation ... dodged
• Hoping for a presidential town hall on crime and punishment
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
• (Too) little coverage of JEC hearing on US drug policy
• Upcoming JEC hearing on costs of US drug policy
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• How the media can do better: ask the candidates tough crime and punishment questions
• FAMM suggests sentencing questions for the candidates
• Senator Biden, crime and punishment
• Hey, big spender: John McCain's ambitious (and expensive?) crime-fighting agenda
• Will any Prez candidate promise to get us out of a failed war ... on drugs?

"Happiness and Punishment"

This title of this post is the title of this intriguing new article available via SSRN.  The piece comes from Professors John Bronsteen, Christopher Buccafusco and Jonathan Masur, and here is the abstract:

This article continues our project to apply groundbreaking new literature on the behavioral psychology of human happiness to some of the most deeply analyzed questions in law. Here we explain that the new psychological understandings of happiness interact in startling ways with the leading theories of criminal punishment.  Punishment theorists, both retributivist and utilitarian, have failed to account for human beings' ability to adapt to changed circumstances, including fines and (surprisingly) imprisonment.  At the same time, these theorists have largely ignored the severe hedonic losses brought about by the post-prison social and economic deprivations (unemployment, divorce, and disease) caused by even short periods of incarceration. These twin phenomena significantly disrupt efforts to attain proportionality between crime and punishment and to achieve effective marginal deterrence.  Hedonic psychology thus threatens to upend conventional conceptions of punishment and requires retributivists and utilitarians to find novel methods of calibrating traditional punitive sanctions if they are to maintain the foundations upon which punishment theory rests.

Seventh Circuit debates a federal death sentence

Today's read of the day has to be US v. Mikos, No. 06-2375 (7th Cir. Aug. 25, 2008) (available here), in which Seventh Circuit Judges Easterbrook and Posner debate over the legality of a federal death sentence.  While the legal dispute between the jurists concerns vulnerable victims and lack of remorse as aggravating factors, the first paragraph of the majority opinion by Judge Easterbrook reads like a Coen Brothers script:

Medicare does not cover the costs of routine medical procedures.  Ronald Mikos, a podiatrist, performed nothing but routine procedures, such as trimming the toenails of people unable to clip their own.  Yet he billed Medicare for thousands of surgeries. When officials became suspicious, Mikos arranged for some of his elderly patients (many of whom were not mentally competent) to submit affidavits stating that surgeries had indeed occurred (though at trial Mikos’s secretary of seven years testified that he had never performed a single surgery during her time in his employ, and medical specialists who examined these people found no signs of surgery).  Other patients were less obliging, so Mikos wrote affidavits for them and had their signatures forged.  A grand jury issued subpoenas to seven of Mikos’s patients.  He visited them, trying to dissuade each from testifying. None appeared to testify — whether because of Mikos’s persuasiveness or because of their own mental and physical limitations, the record does not show.  But we know why one of the seven did not show up.  Joyce Brannon, who by then was cooperating with the investigators, had been shot six times at close range.  After concluding that Mikos had slain her, the jury sentenced him to death.  See 18 U.S.C. §1512(a)(1)(A). It also convicted him of other crimes, including fraud, obstruction of justice, attempting to influence a grand jury, and witness tampering. 18 U.S.C. §§ 1341, 1347, 1503, 1505, 1512(b)(1).

Local data suggesting jail terms increase recidivism

This new research report from the Vera Institute of Justice, titled "Assessing the Effectiveness of Intermediate Sanctions in Multnomah County, Oregon," provides some interesting data on the use various sanctions when offenders violate the conditions of their probation or post-prison supervision.  This report summary details these key findings:

• Most people (70 percent) did not receive any type of sanction or intervention while on probation or under post-prison supervision in Multnomah County, and most were neither re-arrested (74 percent) nor reconvicted (85 percent) after their supervision ended.

• Multnomah County relies heavily on jail to sanction those who violate conditions of supervision. Of the 30 percent of the supervised population who were sanctioned, 92 percent received jail time at some point during their supervision.

• The use of jail as an intermediate sanction was correlated with higher rates of recidivism, a relationship that should be examined more closely. People who received any intermediate sanction (including jail) were 44 percent more likely to have their supervision revoked, compared to a similar group.  Those receiving jail were 76 percent more likely to have their supervision revoked.

Still more evidence it's the prison economy, stupid

This article from this weekend's New York Times highlights the important connection between economic realities and prison nation.  Here is how the piece starts:

When residents here heard that the governor wanted to close the 137-year-old Pontiac Correctional Center, taking hundreds of jobs from the area, they mobilized. They held rallies and a parade. Streets were lined with blue and white “Save Our Prison” signs, and people were outfitted in T-shirts to match.

The 12,000 or so residents now find themselves trying to talk Gov. Rod R. Blagojevich, a Democrat, out of closing the town’s second-largest employer to help fill a $700 million hole in the state budget.

Some related posts:

• It's the prison economy, stupid
• More evidence that it's the prison economy, stupid

Effective review of federal uptick in child-porn prosecutions

In today's San Jose Mercury News is this effective article, headlined "Feds push child-porn cases; penalty can be years in prison."  Here are excerpts:

Just a few mouse clicks into the forbidden world of Internet child porn can transform an apparently upstanding individual into a federal prison inmate — doing a long sentence.

That's the harsh reality former KGO radio host Bernie Ward will encounter this week.  The popular and prominent liberal voice on Bay Area radio for decades is scheduled to be sentenced Thursday in San Francisco federal court for distributing sexual images of young children.  The best the 57-year-old Ward can hope for is five years in prison. Setting aside his celebrity status, Ward's case is no aberration. Ward is ensnared in what is becoming one of the U.S. Justice Department's fastest-growing areas of prosecution.

Child-porn crimes have gone from a rarity on federal court dockets to a phenomenon, with prosecutions jumping nationally from a scant 30 in 1995 to more than 2,100 last year, according to a Mercury News analysis of Justice Department data maintained by Syracuse University. In the Bay Area, dozens of federal cases are being filed every year and the U.S. Attorney's Office is on pace to file a record number of child-porn prosecutions in 2008. There were just two child-porn cases filed in the region's federal courts in 1995 — an era when child pornography just began to proliferate on the Web.

Aggressive law enforcement teams — nationally and in the Bay Area — are policing the Internet. Typically, they are catching successful people — engineers, businessmen, professors and lawyers — who are under the false impression that their habit is personal, harmless and anonymous.  But by downloading or sharing sexual images of pre-pubescent children, those who do so find out they are not sequestered by the privacy of their own computers and are shocked when they suddenly find themselves facing the law's wrath... 

For the federal courts, child-porn cases are raising a host of issues, from concerns in the defense bar that prosecutors are casting too broad a net to questions about the severity of the prison sentences, which often carry mandatory minimum terms ordinarily reserved for violent felons in gun cases and major drug dealers. 

"These cases are difficult," said San Jose U.S. District Judge Jeremy Fogel, who just this summer sent several child-porn defendants to prison. "Many of the defendants have no previous criminal history and have been productive members of the community, and often there are complex psychological reasons why (they) are interested in child pornography.  "At the same time," Fogel added, "the images themselves are truly horrible. Even passive viewers of such material help to make its production profitable."

Some related child porn sentencing posts:

• Another notable sentencing opinion in a child porn downloading case
• Acquitting and downloading some additional USSC priorities
• Judge Adelman operationalizes deconstructed child porn guidelines
• Thoughtful opinion focused on bad health as the basis for a below-guideline sentence
• Should defendants facing long sentences for downloading child porn be filing Kozinski claims?
• Arizona Supreme Court upholds 200-year sentence for possessing child porn