Sentencing Law and Policy

"Rethinking Drug Courts: Restorative Justice as a Response to Racial Injustice"

The title of this post os the title of a new forthcoming article in the Stanford Law & Policy Review from Michael O'Hear. The piece is up at SSRN at this link, and here is the abstract:

Specialized drug treatment courts have become a popular alternative to more punitive approaches to the "war on drugs," with nearly 2,000 such courts now established across the United States. One source of their appeal is the belief that they will ameliorate the dramatic racial disparities in the nation's prison population -- disparities that result in large measure from the long sentences handed out for some drug crimes in conventional criminal courts. However, experience has shown that drug courts are not a "do-no-harm" innovation.  Drug courts can produce both winners and losers when compared to conventional court processing, and there are good reasons to suspect that black defendants are considerably less likely to benefit from the implementation of a drug court than white defendants. 

As a result, drug courts may actually exacerbate, rather than ameliorate, racial disparities in the incarceration rate for drug crimes.  Thus, the concerns of inner-city minority communities with the war on drugs may be better addressed through a different sort of innovation: a specialized restorative justice program for drug offenders.  Although treatment may be part of such a program, the real centerpiece is the "community conferencing" process, which involves mediated dialogue and collective problem-solving involving drug offenders and community representatives.  Where the drug treatment court gives a dominant role to criminal justice and therapeutic professionals, the community conferencing approach empowers lay community representatives, and is thereby capable of addressing some of the social capital deficits that plague inner-city minority communities with high crime and incarceration rates.

The latest news on Maryland's continuing debate over death penalty reform

The Baltimore Sun reports here on the latest development from Maryland on legislative reform of death penalty administration.  Here are the particulars:

A House of Delegates committee approved the Senate's plan yesterday to restrict capital punishment to cases with specific kinds of evidence, a major step toward added limitations on Maryland's death penalty that could receive final legislative approval as soon as next week.

Gov. Martin O'Malley had called on the Senate to abolish the death penalty, and the House appeared poised to follow suit. But the governor urged delegates this week to abandon the repeal in favor of the Senate plan. In the view of some death penalty supporters, however, the limitations are tantamount to a repeal....

Under the Senate proposal, prosecutors could seek capital punishment only in murder cases in which the crime was caught on videotape, the defendant confesses on video tape, or DNA or biological evidence links the defendant to the crime. Maryland Attorney General Douglas F. Gansler, a former Montgomery County prosecutor and death penalty supporter, said this week that the legislature's proposal "significantly limits the death penalty so as to almost nullify it in the state of Maryland."

"Crime and Punishment in Japan: From Re-integrative Shaming to Popular Punitivism"

The title of this post is the title of this interesting piece from The Asian-Pacific Journal, which describes notable developments in criminal justice trends in Japan.  The piece is a few years old, but just showed up on line and still seems timely.  Here is how the piece begins and ends:

Since the Second World War, Japan has avoided the correlation between rising crime and increased affluence that has afflicted other comparable advanced democratic economies.  This has prompted other countries to investigate to famous koban ‘community policing’ principle and to look at notions of re-integrative shaming, which were seen as prevalent in dealing with Japanese offenders.  However, since the late 1990s, the Japanese press and public have lost confidence in their public safety and the effectiveness of the criminal justice system.  Public opinion surveys show that fear of crime among the Japanese has risen. This perceived rise in crime, which is reflected in a 44% increase in recorded crime between 1995 and 2004, is generally associated in the Japanese press with the economic slump during this period, and a subsequent collapse of traditional community-based society.  A major watershed was the way in which police investigative competence was questioned by the press at the end of the 1990s, and the early 2000s, also saw a heavy press focus on a rising tide of youth violence and mass killing sprees....

Western scholars have generally focused on the role of apology and forgiveness in everyday life and in criminal justice in Japan.  However, the questions posed above beg further research into whether Japan has started to resemble other developed countries, such as the US and UK, in moving towards popular punitivism, or whether, at least to some extent, the Japanese public were always more punitive than they were perceived to be.

Notable Fourth Circuit (unpublished) vacating of downward variance

Thanks to this post at Fraud with Peril, I see that the Fourth Circuit has today vacated, via an unpublished per curiam opinion, a downward variance in US v. Gaskill, No. 04-4476 (4th Cir. March 20, 2009) (available here).  Here is how this opinion begins:

Appellee Jerry Gaskill was convicted and sentenced in the Eastern District of North Carolina for making materially false statements in connection with a matter within the jurisdiction of the Army Corps of Engineers, in violation of 18 U.S.C. § 1001.  At his sentencing hearing, the district court, over the Government’s objection, granted Gaskill a downward variance from the advisory Sentencing Guidelines range of fifteen to twenty-one months, and imposed a sentence of three years’ probation with six months’ home confinement.  The Government has appealed Gaskill’s sentence, asserting that the court erred in granting the downward variance. As explained below, we agree with the Government, and thus vacate and remand.

Intriguingly, the opinion in Gaskill suggests that the panel has a substantive problem with the sentence imposed, though it ultimately asserts that it is vacating and remainding for procedural unreasonableness:

In the absence of some indication that the sentencing court considered all the § 3553(a) factors, we are unable to conclude that it complied with its § 3553 mandate.... The court’s implicit consideration of only a part of a single § 3553(a) factor ... is insufficient to support the implication that it considered each of the § 3553(a) factors.... Because a sentencing court should provide a more substantial justification for a probationary sentence when the Advisory Guidelines call for an active sentence of imprisonment, such as in this case, we are unable to conclude that the award of a downward variance was procedurally sound.

Another drunk driving sentencing story we can follow on the sports pages

I suppose I should be glad that during March Madness I can keep up with sentencing news in the sports pages.  But, I am not glad to learn from this SI.com article, that a recent driving fatality caused by a famous athlete is more than just a terrible accident:

Miami television station and newspaper are reporting that blood tests show that Cleveland Brown wide receiver Donte Stallworth was driving drunk when he fatally struck a pedestrian last weekend.

WSVN-TV reported Thursday that unnamed sources with knowledge of the investigation say that Stallworth's blood-alcohol level was .12. The legal limit is .08.  The Miami Herald also reported Thursday that an unnamed source says Stallworth's blood-alcohol level was above the legal limit.

Regular readers are probably tired of my posts complaining about the large number of fatalities caused by drunk driving and about my belief that we might deter some of these deaths if we were much tougher on drunk driving.  Nevertheless, I cannot help but wonder if a much tougher sentence for Charles Barkey, the last prominent athlete convicted and slapped on the wrist from drunk driving, might have led Donte Stallworth to think a little harder before getting behind the wheel while drunk last weekend.

Notable new and helpful thoughts on the capital concept of closure

I just noticed this interesting-looking new piece on SSRN by Jody Lynee Madeira, titled "Why Rebottle the Genie?': Capitalizing on Closure in Death Penalty Proceedings." Here is the abstract:

Closure, though a term with great rhetorical force in the capital punishment context, has to date evaded systematic analysis, instead becoming embroiled in ideological controversy.  For victims who have rubbed the rights lamp for years, inclusion in capital proceedings and accompanying closure opportunities are perceived as a force with the potential to grant wishes of peace and finality.  Scholars, however, argue for rebottling the closure genie lest closure itself prove false or its pursuit violate a defendant's constitutional rights. In order to effectively appraise the relationship of closure to criminal jurisprudence, however, and thus to decide whether and to what extent closure is an appropriate adjudicative goal, it is necessary to more thoroughly investigate the concept and develop a theory of closure.

This article provides an argument against rebottling the closure genie, a task not only seriously implausible but unsound under principles of communicative theory.  Proposing that closure is an authentic cultural and communicative construct that has become indelibly linked to capital proceedings, this article advocates a shift in focus to more practical questions.  This article first summarizes how legal scholarship has described closure up to this point, and then examines how courts utilize the rhetoric of closure to effect change for victims' families in a variety of contexts.  It then reviews widespread scholarly opposition to utilizing criminal law to pursue therapeutic ends. Thereafter, this article seeks to broaden the contemporary understanding of closure by exploring how members of one victim population -- Oklahoma City Bombing victims' families and survivors - have described closure in intensive face-to-face interviews.  These reflections provide the foundation for theorizing closure as a communicative concept composed of two interdependent behaviors: intervention and reflexivity. While intervention is an interpersonal component that urges victims' families to take action to effect change and pursue accountability, reflexivity is an intrapersonal component that nudges them to contemplate and work through grief, emotion, and trauma after a loved one's murder.  Finally, this article considers the pragmatic ramifications of applying a communicative theory of closure.

Because I have long thought that the concept of closure has been over-used and under-examined in capital punishment debates, I am looking forward to finding time to read this piece closely.  I suspect, however, that this important new foray will not give me closure on the concept of closure in capital cases.

Still waiting ... and waiting ... and waiting ... on the clemency front

President Obama is about to begin his third month in office still without having made any use (or any mention) of his clemency powers.  As I spotlighted in a post here a few weeks ago, P.S. Ruckman in this post has documented that the new guy "is already among the slowest presidents to tend to this constitutional duty."  As Ruckman has noted, the vast majority of Presidents have used their clemency power within their first month in office.

Disappointingly, President Obama is following the more recent trend of more recent presidents to wait a long time before getting serious about clemencies.  But, as I have said before and will keep on saying, the failure of modern presidents to use their clemency powers actively is especially troubling because the federal criminal justice system in now so much larger (and also so much harsher) than during any other period in American history. 

I am not holding my breath while hoping that President Obama will bring needed change to the modern presidential tendency to ignore clemency concerns.  But I will keep bringing up this issue periodically.  And I also will readily and repeatedly call out others for not calling out President Obama on this front.  As detailed in some prior posts linked below, many were quick to condemn former President Bush for failing to use his clemency power robustly.  These same voices can and should be raised to complain about President Obama's clemency record unless and until he starts doing better on this front.

Some related posts:

• Is it too early to start demanding President Obama use his clemency power?
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• Washington Post urges Prez Obama to do better on clemency
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• Another public and potent call to reinvigorate the pardon power
• Inaugural rhetoric about freedom and liberty in prison nation
• Are the Border Agents the only federal offenders for whom President Bush feels compassion?
• "Compassionate Conservatism, My Ass"
• Few giving the President sentencing thanks
• The sad (unpardonable) state of compassion in the Bush Administration
• Latest FSR issue on "Learning from Libby"
• Taking stock of President George W. Bush's clemency record
• What might 2009 have in store for . . . executive clemency? 

Local sheriff talking about trying referendum to undo New Mexico's death penalty repeal

Revealing that the death penalty is never easily killed, this AP story reports on comments from a sheriff in New Mexico about his desire to seek a means for reversing the repeal of the death penalty in New Mexico:

Bernalillo County Sheriff Darren White is looking into the possibility of petitioning to put the repeal of New Mexico's death penalty before the voters.

White said Thursday he's looking at a "reverse referendum" after the 2009 Legislature passed and Gov. Bill Richardson signed a measure that replaces lethal injection with life in prison without possibility of parole. The new law will apply to crimes committed as of July 1. "I think there's a lot of support out there" for an effort to reinstate the death penalty, the sheriff said.

New Mexico's constitution has a referendum provision that allows citizens to try to overrule laws approved by the Legislature. It's very difficult to get such a measure on the ballot. In fact, only three referendums have been on the ballot since statehood in 1912 — the most recent in 1964 — and only one passed, according to the Legislative Council Service.

White said he's been flooded by calls since Richardson signed the bill Wednesday. "Judging from the phone calls I've received, asking, 'What can I do, what can I do,' this is an option afforded to us by law," White said. "Let's look at it and see if it's feasible."...

If death penalty supporters decide to try for a referendum, White said they'd form a committee to follow through. "Let the voters decide," he said.

Some recent related posts:

• Abolitionists seem more motivated in New Mexico death penalty debate
• The death penalty officially killed off in New Mexico
• Can and will New Mexico go forward with executions even after its death penalty repeal?
• Effective coverage of death penalty reforms and realities

Feds seeking only sentence of probation for Miguel Tejada based on lying conviction

As detailed in pieces from the AP and from SI.com, federal prosecutors are not asking for an jail time in the upcoming sentencing of Miguel Tejada.  Here are some details from the SI report:

The United States Attorney's office has recommended that Houston Astros shortstop Miguel Tejada receive a sentence of probation for lying to congressional investigators in 2005, according to a memorandum filed on Thursday in Washington, D.C., federal court.  The filing, which also calls for Tejada to pay a fine and participate in youth-based community service, is a suggested sentencing -- not a binding one -- for Washington magistrate judge Alan Kay.

Kay will issue Tejada's punishment next Thursday, when the 34-year-old shortstop is due back in court. Tejada pleaded guilty last month to a misdemeanor charge that he made "misrepresentations to Congress" when he told congressional aides at a Baltimore hotel on Aug. 26, 2005, that he was unaware of steroid use by other players....

Tejada struck a plea agreement with the U.S. attorney's office last month, pleading to the misdemeanor offense. Hours after his guilty plea last month, Tejada fought back tears at a press conference in Houston where he said, "I made a mistake and now I know how serious of a mistake I made for not answering a question about another teammate." He then apologized "to the whole United States, because this country gave me the opportunity to be who I am and the last thing I want to do is let this country down."

With Thursday's sentencing recommendations, it appears that the federal government is willing to give Tejada another chance. "Defendant has expressed appropriate remorse," the filing says, "[he] appears to have learned a difficult and important life lesson."

Some related posts:

• Another prominent (minority) athlete in trouble for lying about steriod use
• Marion Jones gets six-month federal prison term
• Barry Bonds indicted, what would be his guideline range?
• Feds get another conviction in steroid investigations
• Another federal sentence for another athlete lying about steroid use
• Should Roger Clemens now be indicted for perjury?
• More on Roger Clemens, Barry Bonds, perjury prosecutions and race concerns
• "McNamee's Lawyer Predicts Clemens Pardon"

Dean Elana Kagan is now officially SG Kagan

The BLT has this report, titled "Kagan Confirmed as First Female Solicitor General."  As I have suggested in prior posts,new SG Elana Kagan can and will have some say (and perhaps a significant role) in the shape and direction of DOJ's post-Booker litigation positions and other federal sentencing issues.

Some related posts:

• HLS Dean Elena Kagan to be nominated for US Solicitor General
• How much can and will the "tenth justice" influence sentencing jurisprudence?
• How a new administration is likely to impact federal sentencing practice
• Why federal sentencing reformers must focus on the USSC and lower courts
• Will AG Holder really lead a "new birth of freedom" in prison nation?
• More evidence Obama's DOJ is just not that into change in the criminal justice arena
• Lots of big (though really little) congressional sentencing activity
• Are we on the verge of a new changed era concerning federal sentencing law and policy?

Effective coverage of death penalty reforms and realities

Over at Stateline.org, John Gramlich has this effective review of recent capital punishment developments. The piece is headlined, "Death penalty rift in states continues," and here are some excerpts:

Gov. Bill Richardson’s decision Wednesday (March 18) to repeal New Mexico’s death penalty and replace it with a maximum sentence of life without parole is being hailed by supporters as a major victory in the decades-old debate over state-sanctioned executions.

But the decision — which follows New Jersey’s repeal in 2007 and brings to 15 the number of states that do not execute inmates — also underscores the nuanced modern landscape of capital punishment.

While a growing number of states are seriously considering eliminating the death penalty — whether for moral, fiscal or political reasons — others are trying to reinstate or expand it.  At the same time, the United States is on track to put more inmates to death this year than in any year since 1999.

Recent political developments have highlighted the complex and highly regional approaches to the death penalty....

Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation in Sacramento, Calif., noted that the states in which repeal legislation has gained the most traction in recent years — or where it has passed — rarely execute prisoners in the first place.

New Mexico, for instance, has only two inmates on death row, and the state has not executed anyone since 2001. (In an unusual twist, Richardson said during a press conference last night that he will not commute the sentences of the state’s two death-row inmates. The decision potentially sets the stage for a future execution in a non-death penalty state.)

In New Jersey, Gov. Jon Corzine (D) repealed a death penalty the state had never used, and only eight inmates were on death row. In Kansas, Maryland, Montana, Nebraska and New Hampshire, where death-penalty repeal legislation has been seriously debated this year, a combined 29 inmates sit on death row.

In contrast, Scheidegger said, “I don’t see any serious chance of repeal in those states that are actually using the death penalty.”

Are any and all LWOP sentences inconsistent with international human rights law?

Over at The Volokh Conspiracy, Eugene Volokh in this post notes this New Zealand Herald article and wonders and worries about the prospect of international human rights law being used to bar sentencing murderers to life without the possibility parole.  Here are snippets from the kiwi sentencing piece prompting Eugenes concerns:

Foreign Affairs officials are warning the Government that its hardline sentencing and non-parole policy risk damaging New Zealand's international reputation.  They say National's "no parole for the worst murderers" policy and the proposed "three strikes and you're out" law could breach international obligations on torture and civil rights.  The Ministry of Foreign Affairs and Trade says such breaches would affect New Zealand's ability to influence other countries.

The ministry's advice, obtained by the Herald under the Official Information Act, says passing the laws "would pose reputational risks to New Zealand by resulting in international criticism".

The ministry has told the Government that no parole for the worst murderers — a National election policy - would enable "indefinite detention without the possibility of release", and would probably violate two human rights conventions monitored by the United Nations.

Act's "three strikes" policy, which imposes a life sentence with a minimum non-parole period of 25 years on the third "strike" offence, "may result in disproportionate sentences that could also breach the human rights obligations assumed by New Zealand (and most other countries)"....

David Garrett, the Act MP who designed "three strikes", said he wanted to know what countries the Foreign Affairs officials believed would be offended.  "They shoot people in China for much less and we have just concluded a free trade agreement with them.  And we can't be offside with the Yanks because half their states have three strikes."

Though I am not a fan of rigid LWOP sentencing laws or too-broad three-strikes laws, I laregely share Eugene's view that domestic sentencing decision-makers should, as a general matter, "pretty strongly resist any attempt to have our laws on these subjects be governed by 'human rights conventions' that chiefly represent the views of elite lawyers in Western countries rather than of American voters, constitution-makers, or even judges (who at least have been appointed and confirmed by American elected officials and could in time be replaced by American elected officials)."

An interesting historical look at jury trial rights and the rise of pleas

I just noticed on SSRN this interesting piece providing a great historical perspective on jury trials and plea agreements.  The article by Elizabeth Dale is titled "People v. Coughlin and Criticisms of the Criminal Jury in Late Nineteenth-Century Chicago," and here is the abstract:

The last decades of the nineteenth century and the first decades of the twentieth century are typically characterized as the era in which the criminal jury trial came to an end.  Although criminal juries did not completely disappear, their role became smaller and smaller across that time frame.  Most studies of this phenomenon attribute that decline to the rise of plea bargains in that same period. Specifically, these studies lead to the conclusion that institutional factors, such as case loads and the political pressure on elected prosecutors to be "tough on crime," made plea bargains an increasingly attractive option for the State.  They are based on the assumption that the rise of plea bargains caused the decline of criminal juries.  Yet this explanation does not appear to fit the case of late nineteenth-, early twentieth-century Chicago.  In that period the felony courts in Chicago, like felony courts in Los Angeles, Philadelphia, and Boston, did make increasing use of plea bargains and jury trials declined, as well.  But the data suggests that the greater use of pleas did not lead to the decline of criminal juries, so much as result from efforts to avoid jury trials.

To explore this possibility, this article begins with a review of studies of plea bargaining in the Chicago and Cook County felony courts.  The data in that scholarship suggests that the desire to avoid trials prompted the resort to plea agreements.  Then, to consider why that might be so, this article explores the contemporary views of criminal juries by unpacking a trial from late nineteenth-century Chicago, People v. Coughlin, and the various objections to the jury that arose at different moments in that trial.  These objections, made by new accounts, judges, lawyers, legal scholars and political figures, reveal the full range of ambivalence about criminal juries in Chicago at the end of the nineteenth century.  Yet as deep as that unhappiness was, Illinois law failed to respond to those concerns, in part because they were challenges to fundamental aspects of the Anglo-American common law tradition.  That resistance to reform may have reflected an abiding commitment to the ideal of the jury, but it made plea agreements an attractive alternative.  

"Texas judge: Eye-plucking inmate 'crazy' but sane"

The title of this post is the headline of this AP report on an eye-popping case previously discussed here (sorry, couldn't resist the easy joke).  Here are the particulars:

A condemned Texas inmate who removed his only eye and ate it in a bizarre outburst several months ago on death row is "crazy," yet sane under state law, a judge wrote in an appellate court ruling Wednesday that rejected his appeals.

Andre Thomas raised 44 claims in his petition to the state's highest criminal court, challenging his conviction and death sentence for the murder of his estranged wife's 13-month-old daughter five years ago in Grayson County in North Texas....

The nine-member Texas Court of Criminal Appeals unanimously upheld Thomas' conviction and punishment.  Thomas "is clearly 'crazy,' but he is also 'sane' under Texas law," Judge Cathy Cochran wrote in a 14-page statement accompanying the court's brief order....

Cochran wrote that although "reasonable people might well differ on the questions of whether (Thomas) was sane at the time he committed these murders or competent at the time he was tried, those issues were appropriately addressed by the defense, the prosecution, trial judge, and the jury during the trial."

While in the Grayson County Jail five days after his arrest, Thomas plucked out his right eye. A judge subsequently ruled he was competent to stand trial.  Last December, a death row officer at the Polunsky Unit of the Texas Department of Criminal Justice found Thomas in his cell with blood on his face and had him taken to the unit infirmary. Thomas told officials he had pulled out his remaining eye and ate it.  He was taken to a hospital for treatment, then was transferred to a prison psychiatric unit.

There was no reference to the second eye removal in the court opinion.

Thomas was convicted of killing 13-month-old Leyha Marie Hughes. Also slain March 27, 2004, were his wife, Laura Christine Boren, 20, and their son, 4-year-old Andre Lee.  "This is an extraordinarily tragic case," Cochran wrote, saying the deaths could have been avoided because Thomas twice went to hospitals for help but left voluntarily and couldn't be held without legal authority.

The Texas Court of Criminal Appeals per curiam opinion in this case is available here; Judge Cochran's concurring opinion is available here.

Can and will New Mexico go forward with executions even after its death penalty repeal?

I am pretty sure that New Jersey's legislative repeal of its death penalty included a provision for commuting the sentences for those Garden State defendants already sent to death row.  But, according to this local article, folks in New Mexico are talking about still carrying out previously-imposed death sentences despite the abolition of capital punishment there:

Gov. Bill Richardson may have signed into law a repeal of the death penalty, but that doesn’t mean the two men on New Mexico’s death row will see their sentences converted to life without parole.

Richardson told news reporters Wednesday during a news conference,“I will not commute their sentences.” “Those are past legal issues. In fact, they would probably get off easier with life imprisonment,” Richardson added.

The law Richardson signed goes into effect in July 1 and doesn’t apply to crimes that occurred prior to that, meaning that New Mexico still technically has a death penalty. Richardson also surprised some reporters Wednesday when, moments after signing the repeal into law, he said he remained convinced of his initial statement when Michael Paul Astorga was arrested for killing Bernalillo County Sheriff’s deputy James McCrane Jr. McCrane’s parents pleaded with Richardson to not sign the repeal. “For the record, when this crime was committed I felt that Astorga was deserving of the death penalty and I still do,” Richardson said.

For a host of reasons, I think it is unlikely that New Mexico will ultimately execute the two men on its death row given that it has now abolished the death penalty.  But perhaps it will try, and appellate courts will have to decide whether the state can go forward with executions after having taken this sentence off its books.

Another interesting legal issue could arise if New Mexico prosecutors want to still pursue death in response to a terrible murder committed over the next three months.  As noted above, the law repealing the death penalty has an effective date of July 1, 2009.  This would suggest that prosecutors still could (and arguably still should) seriously consider bringing capital charges against any and all terrible murderers who commits their crimes before the second half of this year.

Defendant seeking to turn sentence into Roman holiday

Though I do not expect Gregory Peck or Audrey Hepburn to turn up in this version tale, this local story details an interesting international sentencing dimension in a case from Connecticut:

Lawyers for Benedetto Cipriani, the Italian citizen convicted of hiring the hit man who killed three men in a Windsor Locks auto repair shop in 2003, are asking the Hartford Superior Court judge who will sentence him to order that he spend his entire prison term in Italy.

Cipriani, 53, returned to his native Italy shortly after the fatal shootings of Robert Stears, Barry Rossi, and Lorne Stevens at B&B Automotive on Spring Street in Windsor Locks on July 30, 2003. After a lengthy legal process in Italy, Cipriani was extradited to the U.S. on certain conditions, one of which was that he not be executed.

One of Cipriani’s lawyers, David Compagnone of Waterbury, says in a motion filed in Hartford Superior Court that another condition of the extradition was that Cipriani be returned to Italy to serve his prison time if he so requests. Compagnone made such a request on Cipriani’s behalf in a Jan. 7 letter to a Justice Department official at the U.S. embassy in Rome.

Prosecutors Dennis O’Connor and Robin Krawczyk have yet to file a formal response to the motion. But they said in a motion to postpone the sentencing, filed last week, that Cipriani “is contesting what the state of Connecticut understands to be the terms of Mr. Cipriani’s sentencing, specifically, the country in which he will serve his sentence.”

The prosecutors asked for more time to consult with U.S. Justice Department officials and prepare a response to Cipriani’s claims. Judge Julia DiCocco Dewey granted the motion, which is why Cipriani’s sentencing didn’t occur Tuesday, as originally scheduled.

The death penalty officially killed off in New Mexico

This local story reports that this evening Governor Bill Richardson signed a bill to abolish the death penalty in New Mexico.  Here are a few details from the story:

Tonight, Gov. Bill Richardson signed his name to a law that abolishes the death penalty in New Mexico, saying “This has been the most difficult decision of my political career.”

With his signature, Richardson made the Land of Enchantment the 15th U.S. state to ban capital punishment and pushed it into the worldwide community of states and nations that have abolished the death penalty, including many countries in the European Union.

“I do not have confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crime,” Richardson said. “If the State is going to undertake this awesome responsibility, the system to impose this ultimate penalty must be perfect and can never be wrong.”...

The law also creates a sentence of life without parole to replace the death penalty for the most heinous crimes.

The lead up to Richardson’s decision attracted attention across the country as well as beyond its borders. Viki Elkey of the New Mexico Coalition to Repeal the Death Penalty said Wednesday she had conducted more than 50 media interviews in recent days. And most of the reporters she spoke to hailed from European countries....

New Mexico has executed one prisoner since 1976 — Terry Clark in 2001.

This official page reprints Governor Bill Richardson's statement in conjunction with this decision to sign this bill.  It is an interesting read that includes these assertions:

Even with advances in DNA and other forensic evidence technologies, we can’t be 100-percent sure that only the truly guilty are convicted of capital crimes. Evidence, including DNA evidence, can be manipulated. Prosecutors can still abuse their powers. We cannot ensure competent defense counsel for all defendants. The sad truth is the wrong person can still be convicted in this day and age, and in cases where that conviction carries with it the ultimate sanction, we must have ultimate confidence – I would say certitude – that the system is without flaw or prejudice. Unfortunately, this is demonstrably not the case.

And it bothers me greatly that minorities are overrepresented in the prison population and on death row.

I have to say that all of the law enforcement officers, and especially the parents and spouses of murder victims, made compelling arguments to keep the death penalty. I respect their opinions and have taken their experiences to heart -- which is why I struggled – even today – before making my final decision.

Yes, the death penalty is a tool for law enforcement. But it’s not the only tool. For some would-be criminals, the death penalty may be a deterrent. But it’s not, and never will be, for many, many others.

While today’s focus will be on the repeal of the death penalty, I want to make clear that this bill I’m signing actually makes New Mexico safer. With my signature, we now have the option of sentencing the worst criminals to life in prison without the possibility of parole. They will never get out of prison.

Faced with the reality that our system for imposing the death penalty can never be perfect, my conscience compels me to replace the death penalty with a solution that keeps society safe.

An effort to use charging disparity to fend off death penalty in North Carolina

This story from North Carolina reports on a notable effort by capital defense attorneys to attack the way in which local prosecutors use their charging discretion in capital cases.  Here are excerpts from the article:

A couple of defense lawyers are using a local death penalty study that mirrors the racial disparities highlighted in national analyses to try and keep their client from being prosecuted capitally.

An analysis of 177 murder cases over five years shows that prosecutors are six times more likely in Durham, one of the most diverse counties in the state, to seek capital punishment when a black suspect has been accused of killing a white person compared with when the victim is black.

Jay Ferguson and Lisa Williams, two Durham lawyers, plan to use the analysis in their defense of Keith Kidwell, a 24-year-old black man who has spent the past four years in jail awaiting trial on charges that he murdered Crayton Nelms, a white Kangaroo convenience store clerk found beaten to death at work in February 2005.

Ferguson and Williams will argue in court this week that the death penalty should be taken off the table because of the racial disparity issue...

The Durham analysis was conducted by Isaac Unah, a political scientist at UNC-Chapel Hill. The researcher looked at all murder cases indicted by the Durham grand jury and followed them from start to finish.

Of the 177 murder suspects indicted by a Durham County grand jury between 2003 and 2007, 50 could not be prosecuted as death penalty cases because the defendants were too young.  Of the 127 other cases, only 20 were ever capital cases.  None of those went to jury as a death penalty case because prosecutors often use the threat of capital punishment in bargaining for pleas....

The researchers considered more than race. They also analyzed the cases by the number of victims and the number of charges the suspects faced. "Of all the factors analyzed," Unah concluded in the affidavit attached to his study, "the race of the victim had the greatest effect on the decision to seek the death penalty."

Of the 107 cases where the suspect was black and the victim was black, prosecutors sought the death penalty nearly 10 percent of the time.  Of the 20 cases where the suspects were black and the victims white, prosecutors sought the death penalty 35 percent of the time....

Kidwell, according to his attorneys, has been offered one plea deal that, had he accepted, would have put him behind bars for the rest of his life. "I believe they're using the death penalty to extract plea bargains," Ferguson said.

Disappointingly, this press account does not provide a link to the report with the basic data and analysis.  I will post the report if I can find it.

UPDATE:  A very helpful commentor from DeathWatch North Carolina provides this link to the defense motion discussed in this press report on this litigation.  It is an interesting read.

The latest data on the ever-growing federal criminal caseload

The Administrative Office of the United States Courts has recently issued this news release, titled "Workload of the Federal Courts Grows in Fiscal Year 2008."  Here are some details that should interest federal sentencing fans:

For FY 2008, the twelve-month period ending September 30, 2008, filings in the regional courts of appeals rose 5 percent to 61,104. The overall growth stemmed from increases in civil appeals of prisoner petitions, appeals of administrative agency decisions, involving the Board of Immigration Appeals (BIA), and criminal appeals of drug cases....

Criminal appeals rose 4 percent to 13,667.  An amendment to the U.S. Sentencing Guidelines issued in 2007 reduced penalties for most crack cocaine offenses, and affected the number of appeals in non-marijuana drug cases.

More appeals were filed by pro se litigants in 2008, rising 12 percent to 28,055.  The largest numeric increase was in pro se filings related to criminal appeals, which more than doubled. Pro se petitions filed by prisoners rose 9 percent to 14,993....

Criminal case filings in the U.S. district courts rose 4 percent in 2008 to 70,896, and the number of defendants climbed 3 percent to 92,355.  Increases occurred in cases related to immigration and sex offenses.

Immigration case filings jumped 27 percent to 21,313, and defendants in those cases rose 26 percent to 22,685.  The growth in immigration cases resulted mostly from filings addressing improper reentry by aliens and filings involving fraud and misuse of visa/permit.  The charge of improper reentry by an alien accounted for 73 percent of all immigration cases and 69 percent of immigration defendants.  Seventy-two percent of all immigration cases were filed in the five southwestern border districts — the District of Arizona, Southern District of California, District of New Mexico, and the Southern and Western Districts of Texas.

Sex offense case filings grew 9 percent to 2,674, and defendants in such cases climbed 7 percent to 2,760.  Within this category, sexually explicit material cases rose 10 percent to 1,691, and defendants in these cases climbed 10 percent to 1,708.

Overall, drug cases dropped 7 percent to 15,784, and defendants charged with drug crimes fell 3 percent to 28,932.  Fraud cases declined 4 percent to 7,746, and defendants in these cases dropped 1 percent to 10,680.  Filings of firearms cases fell 3 percent to 8,045, and defendants declined 4 percent to 9,068.

Are a lot more new federal judgeships in the works?

Tony Mauro at The BLT has this important post, headlined "Judicial Conference Adopts New Ethics Code, Seeks New Judgeships." The specifics suggest that a number of new federal judgeships may soon be created:

The Judicial Conference ... agreed to ask Congress to create 63 new judgeships -- 12 appeals court judges and 51 at the district court level. As usual the conference, which is the policy-making body for the federal judiciary, met behind closed doors at the Supreme Court, with Chief Justice John Roberts Jr. presiding....

On the issue of creating judgeships,[conference executive committee chair Judge] Scirica said the conference "hopes the administration and Congress will move ahead on this." Sens. Patrick Leahy, (D-Vt.), and Arlen Specter, (R-Pa.), both addressed the conference and indicated their support for more judgeships, Scirica said.  Congress has occasionally added district judgeships over the years, but no new appeals court seats have been created since 1990.

The recommendations made by the conference would add five judges to the 9th Circuit, two each to the 2nd and 3rd, and one each to the 1st, 6th and 8th. Some would be permanent seats and some would be temporary -- meaning that when the judge appointed retires or dies, it would not be refilled. Currently, there are 167 authorized appeals court judgeships. At the district court level, the conference recommends adding 51 judgeships to the existing 678.

Expanding the federal judiciary by nearly ten percent right now would, of course, provide President Obama with an ever greater opportunity to put his stamp on the lower federal courts.  And with Congress right now controlled by Democrats, I have to this all the partisan forces are properly aligned to make this expansion a reality sooner rather than later.

Abolitionists seem more motivated in New Mexico death penalty debate

I have always suspected that, while a majority of the public favors the death penalty, those who are opposed to the death penalty tend to be more passionate and motivated.  This view would seem to be supported by this official press release from the New Mexico Governor Bill Richardson's office:

Governor Bill Richardson continues to hear from New Mexicans about a bill to repeal the death penalty and today released details on the more than 9,400 calls, emails and walk-ins he’s received on the issue. The Governor has heard from a total of 9,413 constituents who voiced their opinion on House Bill 285. Of those, 7169 were FOR the repeal of the death penalty and 2244 were AGAINST.

After lawmakers passed the bill on Friday, the Governor urged New Mexicans to call and email him on their thoughts of the bill. The Governor then met with more than 100 New Mexicans at his office on Monday, many of which had concerns either pro or con, the repeal of the death penalty.

The Governor has until midnight on Wednesday, March 18th to take action on HB 285.

I would seriously doubt that public opinion throughout New Mexico runs 3 to 1 against the death penalty.  But, as this press release reveals, it appears that those constituents who are opposed to the death penalty made extra efforts to ensure Governor Richardson heard their views.  In light of this press release, I am now inclined to predict that Governor Richardson will sign the repeal bill that's on his desk tonight. 

"To save money on prisons, states take a softer stance"

The title of this post is the headline of this new article from USA Today. Here are excerpts:

[A]cross the nation, the deepening financial crisis is forcing dramatic changes in the hard-line, punishment-based philosophy that has dominated the USA's criminal justice system for nearly two decades.

As 31 states report budget gaps that the National Governor's Association says totaled nearly $30 billion last year, criminal justice officials and lawmakers are proposing and enacting cost-cutting changes across the public safety spectrum, with uncertain ramifications for the public.

There is no dispute that the fiscal crisis is driving the changes, but the potential risks of pursuing such policies is the subject of growing debate. While some analysts believe the philosophical shift is long overdue, others fear it could undermine public safety.

Ryan King of The Sentencing Project, a group that advocates for alternatives to incarceration, says the financial crisis has created enough "political cover" to fuel a new look at the realities of incarcerating more than 2 million people and supervising 5 million others on probation and parole. "It's clear that locking up hundreds of thousands of people does not guarantee public safety," he says.

Joshua Marquis, a past vice president of the National District Attorneys Association, agrees the economy is prompting an overhaul of justice policy but reaches a very different conclusion about its impact on public safety. "State after state after state appears to be waiting for the opportunity to wind back some of the most intelligent sentencing policy we have," Marquis says. "If we do this, we will pay a price. No question."

Some recent related posts:

• The state of cost problems in the states of prison nation
• How many states are being forced by economic realities to consider releasing prisoners?
• Will we invest in classrooms or cells in these tough times?
• States considering laying off the death penalty during tough economic times
• "Time For Marijuana Legalization?"
• Should we end a failed expensive war (the war or drugs) during these hard economic times?
• Terrific commentary and assessment of the war on drugs

New ACS brief urging a new approach to drug policy

I just received an e-mail alerting me to this new issue brief from the American Constitution Society by Professor Alex Kreit, titled "Toward a Public Health Approach to Drug Policy." Here is the ACS's description of the paper:

ACS is pleased to distribute "Toward a Public Health Approach to Drug Policy," an Issue Brief by Alex Kreit, Assistant Professor and Director of the Center for Law and Social Justice at Thomas Jefferson School of Law.  On March 11, 2009, President Barack Obama announced that he will nominate Seattle Police Chief Gil Kerlikowske to be the next director of the Office of National Drug Control Policy, also known as the "Drug Czar."  Chief Kerlikowske's nomination comes as we approach the 40th anniversary of the "war on drugs," which followed the passage of the Controlled Substances Act in 1970.  Professor Kreit argues that, after nearly 40 years, "it is becoming increasingly clear that our current drug control strategy has not worked."  He reaches this conclusion after discussing a variety of studies and surveys that detail the amount of money that has been spent by the United States as part of this "war," and the results we have gotten in terms of the rate of drug use in general, use of drugs by young people, and the ease of obtaining drugs, particularly in comparison to other countries that have used different approaches to addressing these issues.  He also discusses the significant impact that U.S. drug policy has had on the size and composition of our prison population.

Professor Kreit calls on the President and the new Drug Czar to change the focus of our nation's drug policy from a punitive approach to one that looks at and addresses the problem through the lens of public health.  In a discussion of recent surveys and election results, Professor Kreit sees the opportunity for politicians to seek fundamental change in our approach to combating drug use because the views of voters have been changing, and American citizens are now more open to these changes than they were in the 1980s and 1990s.  He acknowledges that "[t]here is no magic bullet that can solve the problem of substance abuse."  Nevertheless, Professor Kreit believes that "[t]here are ... a number of readily identifiable reforms that can help begin to set us on the right track and build a foundation for more significant improvements in the future."  In particular, he suggests shifting funding from programs that have unsuccessfully focused on limiting the supply of drugs to programs that have proven successful at reducing demand, and seeking changes to federal law to remove provisions that are hampering the government's ability to pursue effective programs.  In addition to adopting the changes he proposes, Professor Kreit concludes by advocating for the creation of a commission to conduct a comprehensive reevaluation of U.S. drug policy in light of the significant amount we have learned from other countries and four decades of our own experience with the current approach.

"Why Can’t Martha Stewart Have a Gun?"

The title of this post is the title of a new article by C. Kevin Marshall that will appear the Spring 2009 issue of the Harvard Journal of Law and Public Policy.  A helpful reader sent me a copy of the article, perhaps after noticing this post I wrote way back in January 2008 questioning the justification for asserting that Martha Stewart and Scooter Libby and other non-violent felons are completely and forever excluded from the Second Amendment's protection.  I have secured permission to post this new article, which starts this way:

In 2004, domestic diva Martha Stewart was convicted of obstruction of justice, making false statements, and two counts of conspiracy in connection with dubious stock transactions.  Although sentenced to only five months in jail plus a period of supervised release, she risked a much harsher punishment.  Because she was convicted of a crime punishable by more than a year in prison, federal law bans her from having any gun.  Her ban is for life, unless the Attorney General lifts the disability — a because Congress regularly bars the Bureau of Alcohol, Tobacco, Firearms, and Explosives from spending any money to review petitions to lift firearms disabilities.

Is the public safer now that Martha Stewart is completely and permanently disarmed?  More to the point, how could such a ban be constitutional, now that the Supreme Court, in District of Columbia v. Heller, not only has confirmed that the Second Amendment secures a personal right to keep and bear arms, but also has emphasized its historical tie to the right of self-defense?

Here is how Mr. Marshall concludes his exploration of this interesting and important post-Heller topic:

Research and analysis need to replace dicta and assertions on this topic.  Especially after Heller, there is much room for further thinking and discussion.  Yet wherever the constitutional line may be, it is difficult to see the justification for the complete lifetime ban for all felons that federal law has imposed only since 1968.  And among the various lines that the Second Amendment might draw, it is at least curious how Martha Stewart could merit anyone’s concern.

Download Marshall article on 2A and felon gun possession

Some related Second Amendment posts:

• Justice Scalia sells out felon gun rights, but on what basis exactly?
• The lack of originalist justification for excluding felons from the Second Amendment
• Former SG Ted Olson suggests Heller could impact broad prohibitions on felon gun rights
• Assailing the unjustified Second Amendment limits in Heller
• SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
• Even the Chief and Justice Scalia are content to damn gun possession with faint praise
• Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
• What if no lower court judges participate in a "Second Amendment Revolution"
• Has there been a single pro-gun-rights rulings in lower courts since Heller?
• Are Scooter Libby and Martha Stewart and millions of others not among the Constitution's "people"?
• What might 2009 have in store for . . . Second Amendment jurisprudence?

First Circuit affirms sentence of "87-month term of immurement"

There is nothing especially ground-breaking about the First Circuit's sentencing work in US v. Vargas, No. 08-1377 (1st Cir. March 17, 2009) (available here), but a word choice in the opening paragraph alone makes the opinion blog-worthy: 

Defendant-appellant Victor Vargas pleaded guilty to a charge of conspiring to possess with intent to distribute five or more kilograms of cocaine.  See 21 U.S.C. §§ 841(a)(1), 846.  The district court sentenced him to an 87-month term of immurement.

Other words of note in the Vargas opinion include "anent" and "aposematic" and "asseverates" and "boon" and "congeners."  These terms, in addition to informing knowledgeable readers of the author of this opinion, lead me to wonder if Mr. Vargas has access to a dictionary sufficient to help him understand fully the decision which affirms his sentence.

Here comes the Obama judges ... do we need to prepare for the "mass freeing of criminal defendants"?

Just before the 2008 election, Senator John McCain wrote this op-ed asserting that "Obama's judges would coddle criminals,"  and Professor Steven Calabresi, in this op-ed in the Wall Street Journal, warned that if Barack Obama becomes President and appoints a large number of federal judges, "we could possibly see ... the abolition of capital punishment and the mass freeing of criminal defendants."  If anyone took this heated punditry to heart, now it's time to double-lock the doors and keep the kids from playing outside: according to this New York Times article, "President Obama is expected to name his first candidate to an appeals court seat this week."

Interestingly, the headline for this Times report is "Moderate Is Said to Be Pick for Court," and here are a few more particulars:

President Obama is expected to name ... David F. Hamilton, a highly regarded federal trial court judge from Indiana, for the appeals court in Chicago....

Judge Hamilton, who is said by lawyers to represent some of his state’s traditionally moderate strain, served as counsel to Senator Evan Bayh when Mr. Bayh was the state’s governor; he is also a nephew of former Representative Lee H. Hamilton of Indiana.

A senior administration official said Judge Hamilton would have the support of both Mr. Bayh, a Democrat, and the state’s other senator, Richard G. Lugar, a Republican.

Ooh, Judge Hamilton sure does sound scary, doesn't he?  And given that Judge Hamilton is from the state that birthed infamous figures like Senator Ted Stevens and speeder David Letterman (not to mention Chief Justice John Roberts and Johnny Appleseed and Larry Bird), who knows what we should expect once Judge Hamilton gets a chance to use his Hoosier charms to influence the likes of Judges Easterbrook and Posner on the Seventh Circuit.

All kidding aside, the Times article notes a recent sex offender sentencing ruling by Judge Hamilton that likely will get (too much?) attention given the modern affinity for partisan judicial confirmation battles:

In 2008, Judge Hamilton struck down as unconstitutional an amendment to the state law requiring convicted sex offenders to provide the authorities with personal information, including any e-mail addresses or user names.  The amendment would also have required the offenders to agree to allow their home computers to be searched at any time and to pay for a program to allow monitoring of their Internet use.

The judge said the amendment cut into the heart of a person’s right to privacy in his home.  “The ability of the individual to retreat into his home and therefore to be free from unreasonable intrusion by the government stands at the very core” of constitutional protections against unreasonable searches, he said.

I reported and linked to this ruling by Judge Hamilton in this post, where I speculated that this 52-page(!) ruling "might make its way to the Seventh Circuit and perhaps further."  I do not know if Judge Hamilton's ruling has been appealed, though I suspect we will hear a lot more about this case if Judge Hamilton is soon tapped to move up to the Seventh Circuit.

Some related old and new posts on judicial appointments:

• Names starting to emerge for early Obama circuit court nominees
• Noticing the biggest bias in the federal judiciary
• How a new administration is likely to impact federal sentencing practice
• Why federal sentencing reformers must focus on the USSC and lower courts
• Judging, politics, sentencing and elections
• Brave New Justice and sentencing issues
• A modest(?) proposal for filling the bench from the ivory tower
• Urging President-elect Obama to elevate district judges to the circuit courts

UPDATE:  And so it begins.  This official press release reports that "President Barack Obama announced his intent to nominate Judge David Hamilton to the United States 7th Circuit Court of Appeals."  In response, former judge Paul Cassell at Volokh here describes Judge Hamilton as " a very sensible and reasonable person -- a good selection for the Seventh Circuit."  But the folks at National Review's bench memos do not seem too pleased as evidenced by these new posts over there:

• Obama's First Appellate Court Nominee: Hard Left
• Seventh Circuit Candidate David Hamilton—An ACLU “Moderate”!

Lots of headlines about death penalty reform debates

Lots of states are in the midst of debating the death penalty, resulting in lots of stories about these debates:

• From the Kansas City Star here, "Kansas Senate fails to advance death penalty repeal"
• From The New Mexico Independent here, "The guv gets 6000 calls, e-mails about death-penalty repeal"
• From the Washington Post here, "Death Penalty Bill Faulty, Md. Attorney General Says"

New scholarship on sex offender residency restrictions

I just noticed on SSRN this new article by Professor Asmara Tekle-Johnson, titled "In the Zone: Sex Offenders and the Ten-Percent Solutions." Here is the abstract:

At first glance, sex-offender residency restrictions appear plausible because they ostensibly place a convicted sex offender's residence out of reach of children.  However, these regimes address less than ten percent of the very real problem of child sex abuse, as family members and acquaintances of children commit more than ninety percent of this abuse.  On the other hand, many schemes effectively banish almost 100% of convicted sex offenders to society's literal and social margins, condemning many low-risk offenders to a lifetime of isolation while breeding optimal conditions for high-risk offenders to reoffend.  The practical implications of this policy choice, therefore, are dangerous and real, lulling the public into a false sense of security.

This Article challenges prevailing judicial orthodoxy that many sex-offender residency restrictions are constitutional under the Ex Post Facto Clause.  The Article applies the analytical framework of Smith v. Doe, the U.S. Supreme Court's most recent case involving sex-offender legislation. It also forges a new way of thinking about these regimes as land-use policies that "negatively" zone individuals out of the urban cores. The Article proposes an innovative "positive" zoning scheme, the Sex-Offender Containment Zone, which zones high-risk convicted sex offenders back into the city in a manner that is effective, humane, and constitutional.

"Texas jail was an Animal House, authorities say"

The title of this post is the headline of this AP story, which I just could not resist blogging.  Here is how the piece starts:

For months, perhaps longer, the Montague County Jail was "Animal House" meets Mayberry. Inside the small brick building across from the courthouse, inmates had the run of the place, having sex with their jailer girlfriends, bringing in recliners, taking drugs and chatting on cell phones supplied by friends or guards, according to authorities. They also disabled some of the surveillance cameras and made weapons out of nails.

The doors to two groups of cells didn't lock, but apparently no one tried to escape — perhaps because they had everything they needed inside....

There were whispers in the past year about an affair between a female jailer and male inmate, but folks dismissed the rumors as small-town gossip.  It was not until late last month, when a Texas grand jury returned a 106-count indictment against the former sheriff and 16 others, that the inmates-gone-wild scandal broke wide open.

The indictment charged Bill Keating, sheriff from 2004 until December, with official oppression and having sex with female inmates.  The others indicted include nine guards — seven women and two men — who were charged with various offenses involving sex or drugs and other contraband.  Four inmates also were charged.  Local, state and federal authorities are still trying to figure out how this small-town Texas jail was turned into something resembling a frat house.

Deep thoughts about punishment theory and the genius behind the MPC

Professor Anders Walker has now posted here on SSRN a great-looking new piece that should help me while I otherwise wait impatiently for the NCAA basketball tourney to get started. The piece is titled "American Oresteia: Herbert Wechsler, the Model Penal Code, and the Uses of Revenge," and here is the abstract:

The American Law Institute recently revised the Model Penal Code's sentencing provisions, calling for a renewed commitment to proportionality based on the gravity of offenses, the "blameworthiness" of offenders, and the "harms done to crime victims."  Already, detractors have criticized this move, arguing that it replaces the Code's original commitment to rehabilitation with a more punitive attention to retribution.  Yet, missing from such calumny is an awareness of retribution's subtle yet significant role in both the drafting and enactment of the first Model Penal Code (MPC).  This article recovers that role by focusing on the retributive views of its first Reporter, Columbia Law Professor Herbert Wechsler. Though a dedicated utilitarian, Wechsler became increasingly aware of retribution's value to sentencing over the course of his career, using that awareness to guide both the development and adoption of the MPC.  Recovering his view helps us to contextualize and perhaps even better appreciate the current revision's emphasis on proportionality.

New York Times noticing Heller's lack of practical significance

I am pleased to see that the Old Gray Lady is taking note of the fact that the Supreme Court's supposedly revolutionary Second Amendment ruling in Heller has not had much of a practical impact.  Specifically, Adam Liptak has this new piece on Heller's impact for the New York Times, headlined "So Far, Few Ripples From Landmark Ruling on Guns."  Here are snippets:

About nine months ago, the Supreme Court breathed new life into the Second Amendment, ruling for the first time that it protects an individual right to own guns. Since then, lower federal courts have decided more than 80 cases interpreting the decision, District of Columbia v. Heller, and it is now possible to make a preliminary assessment of its impact.

So far, Heller is firing blanks.

The courts have upheld federal laws banning gun ownership by people convicted of felonies and some misdemeanors, by illegal aliens and by drug addicts.  They have upheld laws banning machine guns and sawed-off shotguns.  They have upheld laws making it illegal to carry guns near schools or in post offices.  And they have upheld laws concerning concealed and unregistered weapons.

“The Heller case is a landmark decision that has not changed very much at all,” said Adam Winkler, a law professor at the University of California, Los Angeles who keeps a running tally of decisions based on the case. “To date, the federal courts have not invalidated a single gun control law on the basis of the Second Amendment since Heller.”...

There is one arguable exception to this trend.  Two judges have struck down a part of the Adam Walsh Child Protection and Safety Act, named after the murdered son of John Walsh, the host of “America’s Most Wanted.”  The act says that people accused of child pornography offenses must be prohibited from possessing guns while they await trial.

That provision may well have been unconstitutional as a matter of due process even before Heller, as it seems to impose a punishment before conviction.  But two courts have struck down the provision based partly on the fact that a fundamental constitutional right is at stake....

“My own bet,” said Sanford Levinson, a law professor at the University of Texas, “is that Heller will more likely than not turn out to be of no significance to anyone but constitutional theorists.”

Regular readers will not be at all surprised by this news, since I have been noting and lamenting the lack of significance that Heller has had in lower courts.  (Just a few examples of my Second Amendment moaning appears in these posts: What if no lower court judges participate in a "Second Amendment Revolution"? and Has there been a single pro-gun-rights rulings in lower courts since Heller?.)

Relatedly, my commentary and complaints about the Supreme Court's work in its recent Hayes gun possession case (see here and here) has been based in part on my view that the Hayes case gave the Justices their very first opportunity to reinforce or repudiate the lack of attention and respect that Second Amendment rights and Heller has received from lower federal courts.  The fact that none of the Justices ever even mentioned the Second Amendment or Heller is its ruling provided strong evidence that not even the Justices who helped rescue the Second Amendment from the historical dust-bin had any serious problems with lower courts throwing lots and lots of dust on the rights that Heller purports to vindicate.

Some related Second Amendment posts:

• Is anyone (other than me) discussing the apparent insignificance of Heller?
• "The New Second Amendment: A Bark Worse Than Its Right"
• Justice Scalia sells out felon gun rights, but on what basis exactly?
• The lack of originalist justification for excluding felons from the Second Amendment
• Former SG Ted Olson suggests Heller could impact broad prohibitions on felon gun rights
• Assailing the unjustified Second Amendment limits in Heller
• SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
• Even the Chief and Justice Scalia are content to damn gun possession with faint praise
• Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
• What if no lower court judges participate in a "Second Amendment Revolution"
• Has there been a single pro-gun-rights rulings in lower courts since Heller?
• Still more proof that federal courts have no real interest in gun rights
• District Court rejects Second Amendment claim from misdemeanant
• Another (too?) brief opinion rejecting misdemeanant's Second Amendment claim
• Starting to make the Second Amendment case for Plaxico Buress
• What might 2009 have in store for . . . Second Amendment jurisprudence?

Another notable new little data report from the USSC

Lately the US Sentencing Commission has been producing a series of interesting little reports on interesting little federal sentencing topics.  Specifically, just in the last few months we have gotten new (and reader-friendly) reports on federal escape offenses and on the growth of the federal criminal caseload and on alternative sentencing in the federal system.  And now today I see up on the USSC's website this latest addition to its releasing of notable little reports:

Impact of Prior Minor Offenses on Eligibility for Safety Valve:  This report provides an analysis of the role of convictions for prior minor offenses in the sentences of federal offenders.  offenders from receiving a sentence below the statutory mandatory minimum punishments for drug trafficking crimes.  The publication utilizes data drawn from a large research sample of offenders sentenced in fiscal year 2006.

Here is the full text of the conclusion of this latest report:

Prior convictions for minor offenses have a minimal impact on safety valve eligibility. Some offenders are subject to an increase in their criminal history score and become ineligible for safety valve relief as a result of their prior minor offenses.  However, these offenders comprise a very small percentage of the drug trafficking offender population.  Therefore, the notion that including minor offenses in the criminal history calculation causes wide spread inequity in sentencing is an overstatement.  Of the 24,483 drug trafficking offenders in the sample, only 260 (1.1%) were disqualified from eligibility for the safety valve provision due to minor offenses in their criminal history. For the vast majority of drug trafficking offenders, past convictions for minor offenses have no effect on the punishment they receive for their later federal crime.

The "mire" and (slow-moving) "train wreck" that is federal criminal history sentencing

In recent months, I have not blogged much about the lower-court mess that constitutes federal sentencing law and policy concerning the use of a defendant's state criminal history as an aggravating sentencing factor.  Part of the reason for not discussing the lower-court mess has been the Supreme Court's recent efforts to try to clean up some of the mess through its rulings in James and Logan and Begay and Rodriquez and Chambers (all of which have come down over the last two years).  But the mess is hardly going away.

Notably, Justice Alito wrote separately in Chambersin order "to emphasize that only Congress can rescue the federal courts from the mire into which" federal statutes and SCOTUS jurisprudence has cast federal law.  And today, though a separate opinion in US v. Mayer, No. 07-30274 (9th Cir. March 16, 2009) (available here), some federal circuit judges are noting a "train wreck in the making" in the middle of this jurisprudential mire.  Here is the start of Chief Judge Kozinski's denial from en banc review in Mayer:

This is a train wreck in the making.

The panel cleaves a formerly uniform doctrine — the Taylorcategorical approach — into two branches. One approach for most things; a separate, incompatible version for a single clause of the Armed Career Criminal Act.  This approach is novel, difficult to administer and will encourage future panels to splinter the categorical approach into even smaller pieces.  That’s not all: The panel also reads ACCA’s residual clause so broadly that nearly any crime will qualify.  And it does so by embracing an argument that the Supreme Court rejected this Term, in an opinion on which the ink is barely dry. This is precisely the sort of case we need to take en banc in order to prevent serious damage to the fabric of our circuit law.

Kansas death penalty debate impacted by capital killers already on the row

This article from the Topeka Capital Journal, which is headlined "Death penalty repeal on tap," details some of the ways in which a debate over repealing the death penalty in Kansas is being impacted by a couple defendants already condemned to death:

The Senate is preparing for an extraordinary debate today on a bill that may render capital punishment in Kansas a casualty of financial austerity, appellate fatigue and moral outrage.

Countering those weighty forces of change will be the legacy of mayhem left by 10 men who have drawn the state’s ultimate sanction since reimposition of the death penalty in 1994.  The leading edge of arguments by defenders of the death penalty will be the depraved saga of murder, torture, rape and robbery that catapulted Reginald and Jonathan Carr to death row.  Both were sentenced to die in 2002 for a Wichita crime spree that put five people in their grave....

Under Senate Bill 208, the death penalty would no longer be an option for Kansas judges and juries after July 1.  Opponents of the death penalty have campaigned against the law on moral grounds but recently built support with an argument drawn from practical experience.  The cost of a death penalty prosecution averages $1.2 million, according to a 2003 state audit, while the cost of other murder cases is $740,000. No one has been executed in Kansas since reimposition of the death penalty....

Supporters of the repeal said the bill was written so Kansas inmates with a pending sentence of death, including the Carr brothers, would remain on death row.  However, Attorney General Steve Six said abolition of capital punishment for future offenders would trigger new appeals by anyone facing execution in Kansas.  Outcome of those legal proceedings is unclear, he said.

Will SCOTUS soon be considering California's corrections crisis?

This new AP article, headlined "California fight over inmate care may go to high court," provides the latest developments in the various legal battle over California's corrections mess.  Here are a few of the details:

When the quality of health care in California's sprawling prison system was first challenged in court, it seemed only a matter of time before major reforms would take hold. Nearly two decades later, the desires of the federal courts and inmate advocates have run into a wall of political inertia.

Legislative stonewalling, California's mounting financial problems and legal counterpunches by the state have conspired to stall the most ambitious of the overhaul plans. The result is a showdown over whether federal judges can take control of California's inmate population and order the state to make costly changes to its corrections system.

The dispute seems headed for the U.S. Supreme Court. If the state appeals to the high court, the justices will face a clash between two constitutional amendments: one that shields inmates from cruel and unusual punishment, and another protecting state sovereignty....

The legal challenges over California's inmate medical and mental health care systems date back to 1991 and initiated studies that found the system was indeed failing prisoners. Some doctors, for example, reused tongue depressors, passing them from patient to patient.

Ultimately, the courts ruled that negligence or malfeasance in the prison health care system was leading to the death of an inmate at the rate of roughly one a week. Finding the level of care unconstitutional, a federal judge in San Francisco in 2005 appointed a receiver to oversee the medical and mental health systems and implement reforms. Improvements have followed.

The receiver has gone on a hiring binge and ordered higher salaries to fill vacancies, with many prison doctors now making about $250,000 a year. A private company runs prison pharmacies, while hundreds of millions of dollars have been redirected from the state general fund to pay for new prison medical buildings and equipment....

The result was a pushback from the Schwarzenegger administration and Attorney General Jerry Brown. "This thing has escalated out of control. It's the most extravagant proposal for inmate health care we've ever seen in the United States," Brown, a Democrat, said in an interview.  Brown said the receiver's plan would create a system that coddles inmates with "Cadillac care" not afforded to many California taxpayers.

As noted in this recent post, UC Hastings College of the Law this week is going to have, as detailed here, a great conference on “The California Correctional Crisis.”   The full schedule for this timely conference is available at this link, and the full list of participants is available here. In addition, the conference organizers have this terrific blog, which is providing "News, Updates and Opinions on Sentencing and Corrections in California."

Gov. Richardson asking for public input on whether to sign death penalty abolition bill

As noted in this post, late Friday the New Mexico state legislature finally passed a bill to repeal the death penalty in that state.  Now, as detailed in this local story, Gov. Bill Richardson is actively seeking public input concerning whether he should sign the bill:

Gov. Bill Richardson, whose signature could abolish the death penalty in New Mexico, spoke publicly Saturday about his dilemma over signing the bill.

The governor said in the days after the attacks of 9-11, he supported the death penalty. But in the last couple of years, he says his thinking has started to change. "You see prosecutorial abuse, you see inmates that have been wrongly incarcerated, you see DNA evidence that's faulty," Richardson said.

Those doubts could play a role in Richardson's decision to either sign or reject a bill passed by the New Mexico Senate Friday that would abolish the death penalty for life without parole. The governor has until Wednesday to decide. "I've struggled with this. It's something probably that you get as governor once in a lifetime, so I want to make the right choice," he said....

The governor said he is looking for the public's input before he decides. "I want to hear compelling argument, factual arguments. I want to hear from the clergy-conscious arguments," he said....

The governor's office has been flooded with thousands of calls and e-mails on the issues, with opinion split evenly. Now, the governor says he wants to go face-to-face with voters. "We're going to be available all weekend to hear from constituents," he said. "I'm going to meet with constituents on Monday--anyone that wants to talk to me about this issue," he said.

You can call the governor at 505-476-2225. You can also e-mail him through his website under the "contact the governor" link.

Sex offender registration news and notes

Two local stories in the Sunday papers provide two interesting ground-level perspectives on the challenges and difficulties posed by sex offender registration laws:

• From the Providence Journal here, "Implementing sex offender registration law may prove impossible"
• From the Atlanta Journal Constitution here, "Sex offender designation not always literally true"

A new opportunity to assess the economy/crime rate connection

The relationship between economic conditions and crime rates has always been considered an important (and unclear) component of criminal justice realities.  This interesting new article from today's Denver Post, which is headlined "This time, economy, crime fall in tandem: Metro area seems to buck trend of downturns breeding scofflaws," provides some new food for thoughts concerning this relationship.  Here is how the article starts:

The number of reported burglaries, car thefts and larcenies has dropped steadily in several Colorado cities despite historic data that say crime should be on the rise during this deep economic recession.

The decrease puzzles criminologists but gives police reason to tout crime-prevention initiatives and tougher sentencing laws putting prolific burglars and car thieves away. Yet even the police aren't sure of all of the factors driving the phenomenon. "Perhaps it would be a natural assumption that crime would increase when the economy is bad," said Detective Shannon Lucy of the Aurora Police Department. "It does kind of go against what people would expect."

It may be too early in this recession to see whether the downward crime trend holds. Some who are young, poor and uneducated may yet be driven to crime after repeated failed attempts to find jobs, some experts said. "People don't become criminals overnight. It takes some time for the strain to hit them," said Jeff London, assistant professor of criminology at Metropolitan State College of Denver.

Between 1979 and 1981, when wages dropped 20 percent, the number of property crimes reported jumped 18 percent nationwide, following a long-established pattern in which recessions cause crime to spike. Colorado experienced a similar leap of 18 percent in property-crime numbers between 1979 and 1981, according to Colorado Department of Public Safety reports.

But during the current recession, several Colorado communities, including Denver, Thornton and Aurora, are seeing double-digit-percentage declines. Statewide totals for 2008 won't be available for two months.

But while the numbers look promising for getting through the recession without a crime spike, there are dominoes yet to fall. Mass layoffs during a recession force people with master's degrees to seek jobs normally taken by those with bachelor's degrees, who, in turn, take openings normally taken by less-educated youths, who find it increasingly difficult to find any job. It also takes time for people to run out of unemployment benefits.