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May 16, 2009

Seeking more number crunching and deep thoughts on the great writ

US District Judge Lynn Adelman's new article titled "The Great Writ Diminished" aspires to "stimulate a discussion about the current state of habeas corpus.  Wonderfully, the article has already started such a discussion in these blog comments, and I want to keep the momentum going in this post.

Specifically, I would like to see a lot more number crunching concerning habeas appeals of state convictions in federal courts.  Judge Adelman builds off the ground-breaking 2007 Vanderbilt study which, as discussed here, found that of 2384 non-capital filings examined, petitioners received relief a rate of 1 in every 341 cases filed, whereas of the 267 capital cases examined, about 1 in 8 petitioners received relief.  These national numbers may obscure lots of significant state variations and also significant issue-specific variations that could and should tell us a lot more about how the great writ is really working.

I also would like to hear more thoughts about what might seem like the "right" number of habeas grants, especially in light of the inevitable need to triage federal resources.  I share Judge Adelman's instinct that habeas relief is granted too infrequently in non-capital cases, but I also fear that habeas relied is grant too frequently in capital cases.  And yet, maybe this is a healthy pattern of "habeas irregularity" on the theory that, given the stakes involved, it is generally sensible for federal courts to micro-manage state capital cases even though this might necessarily mean they will often show perhaps too much deference to state non-capital convictions.  Indeed, arguably this is exactly what the Congress that passed AEDPA might want to be happening.

Some related posts:

May 16, 2009 in Sentences Reconsidered | Permalink | Comments (22) | TrackBack

Notable report on the impact of the prison economy in the Sunshine State

Thanks to this post at Grits for Breakfast, I found this fascinating local article from Florida headlined "Budget reality hits GOP's get-tough-on-crime stance." Here are some highlights:

With the state short on cash and prison beds, Republicans in the Florida Legislature are being forced to reassess the tough-on-crime mentality that has permeated their politics for years.  Florida's prison population cracked 100,000 this year, and state prison officials expect to need more and more prison beds during the next five years as the number of people incarcerated swells past 120,000.

Orange and Pinellas counties led the state in that growth rate in 2008, with Orange's new incarceration rate growing 15.2 percent to 1,868 new prisoners. The single largest category of growth in crimes was burglary, state records show. "Our prisons are growing faster than anything else in our state," said Senate criminal-justice budget chief Victor Crist, a Tampa Republican....

This year's money crunch also prompted lawmakers to abandon plans to bond out $300million in new prison construction in future years.  Rather, to address its prison-population growth, lawmakers ended years of resistance and included plans in the state's $66.5billion budget passed Friday to beef up drug courts across the state.  These courts are designed to find programs for drug users instead of dumping them into the state prison system.

Lawmakers also directed circuit judges to keep more nonviolent offenders who commit lower-level crimes out of prisons.  The spending blueprint even lets the Corrections Department start negotiating with counties and other states to take state prisoners when the department is close to running out of beds....

Lawmakers shied from the normal bills stiffening sentences for sexual predators, drug crimes and other offenses. Another bill to crack down on smuggling illegal immigrants into the country passed only after the penalty was watered down from prison time to a fine.

It's a far cry from just two years ago, when lawmakers rushed to meet Crist's 2006 campaign demand that the first bill he signed be the "anti-murder" legislation that would deny bail to violent offenders and is expected to result in about 2,500 more incarcerations by mid-2011.

"These are tough times, and we can't operate in a vacuum," said Rep. Darren Soto, the Orlando Democrat who carried a failed bill this spring named after an Osceola teen killed by street racers. Because the bill could have led to prison sentences for three-time street racers, it was bottled up in the Senate.  "If we're going to put more penalties into law, we have to be willing to house these folks. And this wasn't the year for it."

May 16, 2009 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

May 15, 2009

The latest SCOTUS nominee news and seeking some predictions (or dreams)

According to this AP article, the "White House says President Barack Obama has not started interviewing candidates for the upcoming Supreme Court vacancy."  I had been thinking that President Obama was likely to name a nominee within the next few days, but perhaps this latest news suggest we have a lot longer to wait.

While we wait, I am eager to hear from readers about their latest predictions (or dream candidates).  Over the last few weeks there has been a lot of chatter about the supposed front-runners.  Does anyone have any new (or old) thoughts about who the President will pick or who he should pick?

Some prior posts on SCOTUS personnel:

May 15, 2009 | Permalink | Comments (13) | TrackBack

The latest briefing on fast-track disparity after Kimbrough

One of the most interesting and dynamic post-Booker issues still percolating in the lower courts concerns whether defendants who are not within so-called "fast-track" districts should be eligible for comparable early plea sentence reductions when their cases are factually similar to those who get the benefit of such reductions in "fast-track" districts.  Before Kimbrough, the circuits had generally ruled that district courts lack discretion to provide such reductions without the blessing of the government.  After Kimbrough, this issue has divided the circuits. 

A helpful reader sent me a copy of a thorough and thoughtful brief on this fast-track disparity issue that was filed in the Seventh Circuit earlier this week.  Here is how the appellate issue is presented in this brief (which can be downloaded below):

Whether the district court committed reversible procedural error when it determined that Seventh Circuit precedent precluded it from considering the sentences given in fast-track districts as part of its 18 U.S.C. § 3553(a) analysis, despite intervening Supreme Court decisions that abrogated the Seventh Circuit’s precedent.

Download Fast-Track Seventh Circuit Brief w Appendices

I am pleased to report that the Federal Sentencing Reporter is in the midst of putting together an issue reviewing the recent past and current debate over fast-track sentencing discounts.  This FSRfast-track issue ought to be out early this summer, though I am wondering if DOJ's working group on sentencing issues will be suggesting some new  fast-track policies even before that issue goes to press. 

Some recent related posts:

May 15, 2009 in Booker in the Circuits | Permalink | Comments (2) | TrackBack

"The Great Writ Diminished"

The title of this post is the title of this piece on SSRN by US District Judge Lynn Adelman.  Here is the abstract:

In 2007, an empirical study of 2,384 randomly-selected habeas corpus petitions filed in United States District Courts by state prisoners in non-capital cases found that district courts granted relief in only seven. This amounts to one grant out of every 284 petitions, or a grant rate of approximately 0.35 percent. The author, himself a district judge, has granted habeas relief in 12 cases out of approximately 300, resulting in a grant rate that is much higher than the rate found by the empirical study. Thus, if the author’s experience is any indication, on average district courts are not granting habeas petitions as often as they should be. If this is so, the Great Writ has been diminished.

This article seeks to stimulate a discussion about the current state of habeas corpus.  Relying on his own experience with habeas petitions, the author explains why habeas is an important component of our justice system and details the cost of a diminished writ.  The article concludes by offering suggestions for making habeas corpus a more potent tool for protecting the constitutional rights of criminal defendants.

May 15, 2009 | Permalink | Comments (19) | TrackBack

Is the Obama Administration starting a (too slow?) withdrawal in the war on drugs?

This article from the Wall Street Journal, headlined "White House Czar Calls for End to 'War on Drugs': Kerlikowske Says Analogy Is Counterproductive; Shift Aligns With Administration Preference for Treatment Over Incarceration," provides some encouraging news for those who are eager for an end to the drug war.  Here is how the piece begins:

The Obama administration's new drug czar says he wants to banish the idea that the U.S. is fighting "a war on drugs," a move that would underscore a shift favoring treatment over incarceration in trying to reduce illicit drug use.

In his first interview since being confirmed to head the White House Office of National Drug Control Policy, Gil Kerlikowske said Wednesday the bellicose analogy was a barrier to dealing with the nation's drug issues. "Regardless of how you try to explain to people it's a 'war on drugs' or a 'war on a product,' people see a war as a war on them," he said. "We're not at war with people in this country."

Mr. Kerlikowske's comments are a signal that the Obama administration is set to follow a more moderate -- and likely more controversial -- stance on the nation's drug problems. Prior administrations talked about pushing treatment and reducing demand while continuing to focus primarily on a tough criminal-justice approach.

The Obama administration is likely to deal with drugs as a matter of public health rather than criminal justice alone, with treatment's role growing relative to incarceration, Mr. Kerlikowske said.

Valuably, Arianna Huffington has this potent follow-up commentary in which she stresses the need for the Obama Administration to walk as well as talk the talk in this arena. Her piece is titled "Ending the War on Drugs: The Moment is Now," and here are excerpts:

[W]hen it comes to putting its rhetoric into action, the Obama administration has faltered.

Just a week after the Attorney General said there would be no more medical marijuana raids, the DEA raided a licensed medical marijuana dispensary in California. Obama's '09-'10 budget proposes to continue the longstanding ban on federal funding of needle exchange programs.

The current budget is still overwhelmingly skewed in favor of the drug war approach -- indeed, it allocates more to drug enforcement and less to prevention than even George Bush did.

Testifying [Thursday] in front of the House Judiciary Committee, Holder, in his opening statement, called for a working group to examine federal cocaine sentencing policy: "Based on that review, we will determine what sentencing reforms are appropriate, including making recommendations to Congress on changes to crack and powder cocaine sentencing policy." A working group? Why? As a senator, Obama co-sponsored legislation (introduced by Joe Biden) to end the disparity. What further review is needed?...

So the question becomes: is the Obama administration really committed to a fundamental shift in America's approach to drug policy or is this about serving up a kinder, gentler drug war?

And this at a time when the tide is clearly turning. Inspired by the massive budget crises facing many states, and the increase in drug violence both at home and abroad -- leaders on all points across the political spectrum appear more willing to rethink our ruinous drug policies.

Gov. Arnold Schwarzenegger has called for "an open debate" and careful study of proposals to legalize, regulate, and tax marijuana. Former Mexican President Vicente Fox has also urged renewing the debate, saying that he isn't convinced taxing and regulating drugs is the answer but "why not discuss it?" Arizona Attorney General Terry Goddard, pointing to evidence that Mexican drug cartels draw 60 to 80 percent of their revenue from pot, suggested legalization might be an effective tool to combat Mexican drug traffickers and American gangs....

I understand that drugs continue to be a political hot potato, fueled by what the Latin American presidents described as "prejudices and fears that sometimes bear little relation to reality."   And I can easily picture some on the president's team advising him to keep the issue on the backburner lest it turn into his "Don't Ask, Don't Tell."

But the cost of the drug war -- both human and financial -- is far too high to allow politics to dictate the administration's actions. Indeed, with all the budget cutting going on, how can anyone justify spending tens of billions of dollars a year on an unwinnable war against our own people?

Change won't be easy.  The prison-industrial complex has a deeply vested interest in maintaining the status quo.  Which is why we need to keep the pressure on the president and his team to follow through on their drug policy promises.

As with the regulation of Wall Street, real reform of our nation's drugs policies won't happen without someone in the administration making it a top priority.

As I have suggested in a number of prior posts, one symbolically important gesture that President Obama could and should make in this regard is to commute the sentences of a few non-violent drug offenders who have already served lots of time in prison.  A particularly sensible group of potential candidates for some clemency relief might be the most sympathetic crack defendants who have not been able to get effective sentence reductions under the US Sentencing Commission's liimited reduction of its crack guidelines.

Some related posts on the drug war and clemency:  

May 15, 2009 in Drug Offense Sentencing | Permalink | Comments (31) | TrackBack

Scholarly concerns about the CVRA

Regular readers may sense that I am a fan of victim participation in sentencing, which in turn make me a fan of the federal Crime Victimsi Rights Act.  But this new piece appearing on SSRN, titled "The Limits of Victims' Rights in a System of Public Prosecution," suggest the CVRA should be a cause for concern, not celebration.  Here is the abstract:

The Crime Victims’ Rights Act (“CVRA”), enacted in 2004, potentially threatens our system of public prosecution enshrined in the Constitution.  Although it does not confer party status to victims, the CVRA provides victims with expansive rights, which could often conflict with the interests of prosecutors and defendants.  Most significantly, if a district court denies any of the victims’ participatory rights under the statute, the CVRA permits victims to petition the appellate court for a writ of mandamus to re-open a plea bargain or sentence. Consequently, given the expansive rights and remedies, victims theoretically have the ability to trump prosecutorial and judicial discretion regarding decisions made in a criminal case.  Although the standard for granting a writ of mandamus is ordinarily very high, two circuits, the Second and the Ninth, have declined to use the traditional mandamus standard and have reviewed victims’ petitions for either an error of law or for an abuse of discretion.  Using a more relaxed standard is problematic because victims’ interests may at times be opposed to those of the prosecutor, and for obvious reasons, are often at odds with those of the defendant.  An appellate court reviewing a district court’s denial of a victim’s motion should apply the traditional mandamus standard of review because it promotes a narrow interpretation of the CRVA and respects prosecutorial and judicial discretion, which Congress explicitly built into the statute.

May 15, 2009 in Victims' Rights At Sentencing | Permalink | Comments (1) | TrackBack

Lots of dynamic death penalty debates in Missouri, while other states execute

This new article from the St. Louis Post-Dispatch, headlined "Legal challenges over, Missouri plans to resume executions next week," provides details on the latest death penalty developments in the Show Me State.  Here are a few of the interesting details:

After more than three years of wrangling over how Missouri's executioners should deliver the lethal injection — and who is qualified to do it — the state is gearing up for the death penalty again. With questions about the state's method of capital punishment settled, the debate has shifted to whether the first man in line should be spared.

Dennis Skillicorn, 49, is scheduled to die at 12:01 a.m. Wednesday for a role in the 1994 murder of Richard Drummond. With appeals running out, Skillicorn's last hope may be Gov. Jay Nixon, who holds the power to convert the death sentence to life in prison.

In an interview Tuesday at the prison in Bonne Terre, Skillicorn insisted that he did not kill Drummond. He said that his death would cause suffering for his wife and that society would benefit from letting him live. Many agree. Supporters and even a prominent legislator are asking Nixon to spare him. Some prison workers and volunteers plan a demonstration for him Monday in Jefferson City. They say there is substantial doubt that Skillicorn was responsible for the murder — and that he has transformed into a force for good.

But Skillicorn has been implicated in four murders over time, leading others to insist his recent deeds don't matter. State Rep. Bob Nance, a Republican from Excelsior Springs, Mo., Drummond's hometown, said Skillicorn is a career killer and represents the very reason Missouri has a death penalty....

Skillicorn runs one program to help strengthen prisoners' families and another to care for sick and dying inmates. He edits a national magazine, Compassion, that has awarded scholarships for relatives of crime victims. One prison guard calls him a "calming influence." A chaplain said Skillicorn made prison safer and said taking his life would be "counterproductive."

Skillicorn's lawyer has argued, unsuccessfully, in federal court that Nixon, as the former Missouri attorney general, could be biased against clemency. A spokesman for the governor said he would be thorough and fair.

Earlier this week, state Rep. Bill Deeken, R-Jefferson City, asked that the death penalty be put on hold for two years while a commission studies whether it is administered fairly and properly. That measure failed 95-64.

Majority Leader Steve Tilley, R-Perryville, urged Nixon to grant clemency, saying there was "reasonable doubt" about Skillicorn's role in Drummond's slaying. But before the Drummond killing, Skillicorn was already on parole for murder. In that case, in 1980, his partner in a burglary killed the occupant of a home. Skillicorn did more than 13 years in prison.

Meanwhile, as this new AP article reports, two other states went forward with executions yesterday:

A man convicted of battering his girlfriend's 8-year-old son and stuffing the body in a freezer was put to death Thursday in Oklahoma, while a man in Alabama was executed for fatally stabbing a mother of six.

May 15, 2009 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

May 14, 2009

Should we force offenders to pay for the costs of their punishments?

This local article, headlined "N.J. lawmakers want inmates to pay jail, monitoring costs," prompts the question in this title of this post.  Here are some excerpts:

Some New Jersey lawmakers want convicted criminals to pay for their confinement or electronic monitoring. Two bills would pass the costs of state jails onto inmates and the expense of electronic monitoring devices onto sex offenders required to wear them.

A plan from State Sen. James Beach (D., Camden) would charge state prisoners for the cost of their incarceration, an average of $38,700 per year.  Beach said he had gotten the idea from within his district, where the Camden County Correctional Facility assesses a user fee of $5 per day for room and board and $10 per day for use of the infirmary.  The fees generate about $300,000 a year.

"There's a misperception that everyone in jail is poor, and that's just not true," Beach said. "Why should we as taxpayers foot the bill for someone that did something wrong and end up in jail?" With the cost of incarceration approaching $40,000 per year, Beach said, "I think we should be able to do pretty good."

A bill sponsored by State Sen. Joseph Pennacchio (R., Morris) and Senate Majority Leader Stephen Sweeney (D., Gloucester) would require those convicted sex offenders who must wear electronic monitoring devices to pay the costs of that equipment, or about $2,900 per year.  "It can be quite an expense for the state, an expense that, in my view, the state shouldn't have to deal with," Pennacchio said at a hearing on the measure.

About 209 sex offenders in New Jersey must be monitored.  They are generally those considered the highest threat to safety who can still be released from confinement.  Pennsylvania charges all people who require electronic monitoring, including sex offenders, for the cost, said Leo Dunn, a spokesman for the state's parole board.

At least eight other states make sex offenders pay for monitoring devices, according to the National Conference of State Legislatures.  There is also long-running movement among some county jails to charge inmates.  Pennsylvania does not do it statewide, but several counties do.

"It is popping up across the country," said Rick Neimiller, director of administration and communications for the American Jail Association. "Especially now they're looking at it, with the economy."

Critics, however, said charging inmates would put a burden on both the prisoners and their families, who are often poor.  "It discourages people trying to put their lives back together," said Elizabeth Alexander, director of the American Civil Liberties Union's National Prison Project. People heading to prison often owe fines, restitution, and child support, and have little income while incarcerated, said Ed Martone, director of public education and policy for the New Jersey Association on Correction.

May 14, 2009 in Criminal Sentences Alternatives | Permalink | Comments (29) | TrackBack

Connecticut house votes to repeal state's death penalty

Here is the latest news from the latest state that does not really make serious use of the death penalty that is having a serious debate over whether to formally abolish the punishment:

The [Connecticut] state House of Representatives voted to abolish the death penalty on Wednesday — the fourth anniversary of the execution of serial killer Michael Ross — and instead impose life in prison without the possibility of release.

The historic vote, 90-56, came at about 7:45 p.m. after more than five hours of passionate debate. Lawmakers argued whether the death penalty is necessary for justice or is a punishment that should never be rendered by state government.

Despite the House vote, the chances of the death penalty being eliminated in Connecticut are slim. Republican Gov. M. Jodi Rell repeated her support for capital punishment this week as the House prepared for the debate.

"I have always said that I support the death penalty because I do believe that there are some crimes that are so heinous that the death penalty is the only option," Rell told reporters at the state Capitol complex. "I believe in the death penalty.  I don't consider it revenge. It's justice." 

Some related posts:

May 14, 2009 in Death Penalty Reforms | Permalink | Comments (3) | TrackBack

"Car breath tests for 1st-time DUI offenders?"

The title of this post is the headline of this article from my local Columbus Dispatch.  As a few excerpt show, this short piece appeals to my affinity for technocorrections, for data-driven sentencing reforms, for alternatives to incarceration and for getting tougher on drunk driving:

Some Ohio lawmakers and Mothers Against Drunk Driving want the state to require anyone convicted of a drunken-driving offense to blow into an alcohol tester before his or her car can start -- the first step, opponents say, in requiring all drivers to submit to such a test.

MADD's national president, Laura Dean-Mooney, testified at the Ohio Statehouse yesterday in favor of a bill that would require ignition-interlock devices for first-time DUI offenders.

She said the 10 states that have such laws have had significant decreases in the number of drunken-driving accidents and deaths.  DUI-related accidents have decreased 35 percent in New Mexico since that state required ignition interlocks in 2005, she said.

"Despite the fact that this life-saving technology exists, it's not used very often," Dean-Mooney told the Ohio House's Criminal Justice Committee. "Ignition interlocks would reduce recidivism and save some of the 13,000 lives that are lost in drunk-driving accidents every year."

Last year, 466 people died in Ohio in DUI-related accidents, according to the State Highway Patrol.  About 9,000 others were injured.... Ohio law prescribes an ignition interlock for second-time offenders for whom judges restrict driving privileges.

In my view, unless and until there is empirical evidence indicating that ignition interlocks are ineffective, the answer to the question in the title of this post should be an emphatic YES.  Even If Ohio might only get half the accident decrease in New Mexico, the data still suggests we could save perhaps as many as 100 lives and thousands of injuries from simply requiring those convicted of drunk driving to prove they are not repeating their offense when they again get behind the wheel.  Unless one cares a lot more about some value other than innocent lives, I do not quite understand the basis for serious opposition to this proposal.

Of course, there was opposition expressed at the Ohio Statehouse yesterday, but those voicing the opposition is tellingly a group, the American Beverage Institute, that sees a loss of potential profits from this potentially life-saving bill:

A total of 27 states require repeat DUI offenders or first-timers with extremely high blood-alcohol concentrations to blow into the testers before their engines can start, said Sarah Longwell, managing director of the American Beverage Institute.

The trade group of alcohol-serving restaurants opposes efforts to require ignition interlocks for first-time offenders. "This bill mandates that people one sip away from 0.0799 receive a punishment normally reserved for high-(blood-alcohol-content), repeat offenders," Longwell told the House committee. "While both have committed a crime, they are very different types of criminals."

Some related posts on sentencing drunk drivers:

May 14, 2009 in Criminal Sentences Alternatives | Permalink | Comments (29) | TrackBack

Exploring constitutional ineffectiveness at sentencing

Professor Carissa Byrne Hessick now has posted here on SSRN a great new paper on a sentencing topic I have always found very interesting (and underexplored in both caselaw and the academic literature). This piece is titled simply "Ineffective Assistance at Sentencing," and here is the abstract:

The legal standards for reviewing claims of ineffective assistance at sentencing are underdeveloped.  In other contexts, defendants seeking to prove ineffective assistance must demonstrate that counsel's performance fell below appropriate professional standards and that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.  The doctrinal uncertainty whether that standard applies to sentencing proceedings in non-capital cases, coupled with worries that ineffective assistance at sentencing claims will result in a flood of litigation, has led some courts to require defendants to satisfy stricter prejudice standards in discretionary non-capital sentencing regimes.

This Article analyzes the ineffective assistance jurisprudence and concludes that the sufficiency of counsel's performance is largely evaluated against a backdrop of relevant substantive law.  The substantive law of non-capital sentencing is not well-developed, which may explain the underdeveloped state of ineffective assistance at sentencing standards. Drawing on several recent ineffective assistance cases in the death penalty context, this Article identifies legal principles and practices that may assist in making the legal assessments necessary to analyze ineffective assistance at sentencing claims.  These principles and practices may provide a sufficient legal framework to render unnecessary the crude manipulation of the prejudice showing that some courts have employed.

May 14, 2009 in Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Prosecutorial power, victims rights, sentencing judgments and judicial empathy

Two very different post by Orin Kerr at The Volokh Conspiracy have me thinking this morning about all the topics in the title of this post.  Here are the links:

The first post provides links to the fascinating supplemental sentencing briefs in the Lori Drew cyber-bullying case.  There are lots of remarkable aspects to those briefs, perhaps the most notable being that federal prosecutors are seeking a statutory max of 3 years in prison for Drew for three misdemeanor convictions and that they are pressing a very broad interpretation of the CVRA (no doubt because a vocal "victim" is going to support their sentencing suggestions).  In response, the defense's legal team (which includes Orin Kerr) quotes from Attorney General Robert Jackson's famed 1940 speech about abuses of prosecutorial power and complains repeatedly about the fact that "the goal of the government’s case has been to make Lori Drew the public face of cyberbullying." 

I could go on and on about these two remarkable briefs in what is a truly remarkable case, but folks should just read them here and here.  I would, of course, welcome comments on the legal specifics, as well as whether there is anything wrong with the government’s efforts "to make Lori Drew the public face of cyberbullying."

After I read these sentencing briefs and struggling with all the legal and policy issues they present, I then read the second post from Orin about legal ambiguity and the ways in which empathy is being discussed in connection with President Obama's SCOTUS nominee decision.  Especially after having my mind swimming with all the fascinating and challenging questions raised by the up-coming sentencing of Lori Drew, I was quite surprised and troubled by what a simplistic account Orin gave to the concepts of legal ambiguity and judicial power. 

Here is one part of a comment I added to the first of Orin's posts: "isn't a whole lot of sentencing debate about competing visions of empathy, with prosecutors urging empathy for the victims/society, and defense lawyers arguing for empathy for the defendant?".  Indeed, the more I think about the concept of empathy, the more I am inclined to assert that the issue is not whether a judge should be empathetic, but rather to whom that empathy should be shown in legal rulings and discretionary judgments.

May 14, 2009 in Celebrity sentencings | Permalink | Comments (8) | TrackBack

Interesting empirical examination of SCOTUS cert granting

Especially in the criminal justice arena, what the Supreme Court decides to decide is almost as important as what they decide.  Thus, I am always excited to see a new analysis and assessment of how the Justices' pick their cases.  This piece on SSRN, titled " An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor General," looks worthy of review by both academics and practitioners.  Here is the abstract:

The Supreme Court frequently uses two tools to gather information about which cases to hear following a petition for writ of certiorari: the call for response and the call for the views of the Solicitor General.  To date, there has been no empirical analysis of how the Supreme Court deploys these tools and little qualitative study. 

This Article fills in basic gaps in the literature by providing concrete answers to common questions regarding these two tools and offers detailed analysis of how and why states, private parties, and the United States (through the Solicitor General) respond to petitions.  In addition, the Article provides much-needed data for litigators and litigants to be able to estimate the probability of their case being heard by the Court, and provides insight on how to react when the Court calls for a response or calls for the views of the Solicitor General.  To reach these conclusions, the Article relies on detailed, quantitative analysis of a novel, 30,000-petition dataset, as well as interviews with top Supreme Court litigators, former Supreme Court clerks, and former staff of the Clerk’s office.

May 14, 2009 in Who Sentences | Permalink | Comments (1) | TrackBack

May 13, 2009

The latest SCOTUS nominee short-list news

This AP article has these new SCOTUS nominee short-list details:

Among those under consideration are Solicitor General Elena Kagan, Michigan Gov. Jennifer Granholm, Homeland Security Secretary Janet Napolitano and U.S. Appeals Court judges Sonia Sotomayor and Diane Pamela Wood. California Supreme Court Justice Carlos Moreno is also under review by Obama.

Sources familiar with Obama's deliberations confirmed the names to The Associated Press on condition of anonymity because no candidates have been revealed by the White House. The confirmation amounts to the first time any name has been directly tied to Obama.

One official cautioned that Obama is considering other people who have not been publicly mentioned. And more names may be added as the administration considers a replacement for retiring Justice David Souter.

Some prior posts on SCOTUS personnel:

May 13, 2009 in Who Sentences | Permalink | Comments (2) | TrackBack

Should we embrace or fear videoconferencing in corrections?

This fascintating article at Stateline.org, which is headlined "States expand videoconferencing in prisons," prompts the question in the title of this post.  Here are snippets from the article:

Faced with the high costs of transporting and escorting sick inmates to the doctor, states are expanding their use of videoconferencing to provide health consultations to prisoners without resorting to costly — and sometimes dangerous — off-site trips....  Elsewhere, videoconferencing in prisons and jails is replacing inmates’ in-person trips to the courtroom or parole board, and even the way family members visit.

Supporters say the technology saves money when few states have funds to spare; Arizona, for instance, saved $237,000 in 2008 by using telemedicine at nine correctional facilities, according to the state Department of Corrections.

But some have criticized the expansion of videoconferencing.  Relying on technology to keep inmates behind bars makes them “disappear more and more from the public consciousness, and I think there’s a (negative) long-term consequence of that,” said Nancy Stoller, a professor at the University of California-Santa Cruz and the coordinator of a jail and prison task force at the American Public Health Association....

Telemedicine and telepsychiatry work by letting inmates and doctors communicate with each other using interactive, real-time audio and video links. The practice — which has been praised by the U.S. Department of Justice and the National Commission on Correctional Health Care — is most often used for consultation, not treatment....

Many states also are using videoconferencing to avoid transporting prisoners to court for arraignments and other initial appearances, according to Greg Hurley, an analyst with the National Center for State Courts, which researches court trends across the nation. Parole hearings also can be conducted by videoconference.

Connecticut last year finished installing videoconferencing equipment at all 18 of its state correctional facilities and the state’s court system is studying ways to expand the practice. The state’s corrections commissioner, Theresa Lantz, noted that videoconferencing saves the state money it would otherwise have to spend on vehicles, gasoline, correctional officers and overtime.

Illinois and other states also are looking at videoconferencing to let prisoners talk with family members who might not be able to make the trip to visit them in person....  The Pennsylvania Prison Society, a nonprofit advocacy group, has partnered with the state Department of Corrections since 2001 to allow inmates’ families to come to the organization’s offices and speak on a video link with their loved ones serving time.  A 55-minute session costs the family $20, according to the group’s Web site.

On these kinds of issues, I am always inclinded to embrace technology and innovation unless and until a strong argument can be made to preserve the status quo.  Among other benefits, as this Stateline article hints, new technologies and innovation tends (at least initially) to avoid the usual (and usually destructive) left/right rhetorical divides that often can thwart useful reforms.

May 13, 2009 in Technocorrections | Permalink | Comments (5) | TrackBack

"Law students help free three-strikes offenders"

The title of this post is the headline of this interesting Los Angeles Times article.  Here are excerpts:

Stanford law clinic ... students are devoted to reversing what they view as miscarriages of justice under the three-strikes law.   Their work involves a new twist on a strategy employed by innocence projects nationwide in which students have helped overturn wrongful convictions and sparked debate over the death penalty. Rather than championing the innocent, the Stanford students are advocating for prisoners guilty of what they view as relatively minor offenses and raising the question of how much prison time is too much.

The effort touches a nerve.  Fifteen years ago, California voters overwhelmingly approved the three-strikes sentencing law. The state rejected a reform initiative five years ago.

The Stanford clinic is taking aim at the most controversial part of the law, which imposes at least 25 years to life in prison even for a nonviolent felony, such as petty theft or drug possession, as long as an offender's criminal history includes at least two violent or serious crimes.

Students and their instructors hope to redress what they call grossly unfair sentences for minor crimes and spur changes in the law. Their clients, they say, illustrate how the justice system has unfairly ensnared low-level defendants whose crimes are often linked to mental illness, drug abuse or extreme poverty....

Mike Reynolds, who wrote the three-strikes law after his 18-year-old daughter's murder in Fresno, said many prisoners who have minor third strikes also have long, violent criminal records.  He said voters knew exactly whom they were putting away when they approved the law and called the Stanford clinic's work misguided. "Do they understand that they could be turning someone loose who could get out and hurt somebody?" he asked.

Since September, students have persuaded judges to lessen the sentences of four prisoners, including Williams. Three have been released so far, having already served their reduced prison terms, which ranged from six to 10 years.

More than 8,400 inmates are serving possible life terms under the three-strikes law, according to the state Department of Corrections and Rehabilitation. Of those, more than 1,300 were sentenced for drug offenses and nearly 2,500 for property crimes.  A department spokeswoman said the agency has not compiled data on what serious or violent felonies those inmates previously committed.

Since its launch in 2006, the Stanford Criminal Defense Clinic has been deluged with letters from inmates and their relatives pleading for help. None have attorneys to handle their appeals, the clinic says.  Instructors at the clinic sift through the letters and review appeals records in search of clients who appear to be good candidates for their help. Most of the inmates they aid have nonviolent criminal records. "There's a huge number of people who fit into that category," said Michael S. Romano, a Stanford law school lecturer who launched the clinic.

May 13, 2009 in Scope of Imprisonment | Permalink | Comments (18) | TrackBack

Two significant sex offender rulings on constitutional issues from the Eighth Circuit

As noted on this official opinion page the Eighth Circuit has released two significant sex offender rulings today.  Here are the basic detail (and links) from the unofficial summaries on that page:

United States v. Roger Dean Tom, No: 08-2345 -- District court erred in finding 18 U.S.C. Sec. 4248 (the "Adam Walsh Act") was an unconstitutional exercise of Congress's powers under the Commerce Clause; Congress, having been empowered by the Commerce Clause to criminalize and punish the conduct of which defendant is guilty, has the ancillary authority under the Necessary and Proper Clause to provide for his civil commitment so that he may be prevented from its commission in the first place; 18 U.S.C. Sec. 4248 does not upset the delicate federal state balance mandated by the Constitution. 

United States v. Scott Hacker, No: 08-2427 -- SORNA's registration and penalty provisions are valid exercises of Congress' authority under the Commerce Clause; Hacker lacks standing to raise a Tenth Amendment challenge to SORNA; Hacker lacks standing to assert an argument that Congress impermissibly delegated to the Attorney General the authority to determine SORNA's retroactive effect; Hacker lacks standing to challenge the interim rule on APA grounds.

May 13, 2009 in Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Unusual porn case leads to 33-month sentence after rejected deal for shorter term

As noted in this post from a few weeks ago, an unusual porn case from Indiana had prompted a federal district judge to reject a plea agreement that had called for a below-guideline sentence for a defendant who clearly has some mental issues.  As this new local article highlights, the case has now produced a sentence:

A Hobart man who twice served time for killing animals now will spend nearly three years in federal prison for downloading images of people having sex with animals. Michael Bessigano likely will serve his sentence in a Boston-area facility for male offenders with mental problems.

U.S. Judge Philip Simon on Tuesday sentenced Bessigano to 33 months in prison and three years of supervised release, a term at the low end of federal guidelines. Simon two weeks ago threw out a plea agreement that would have seen Bessigano serve only 24 months, stating that Bessigano's history did not seem to make him a candidate for a below-guidelines sentence....

Assistant U.S. Attorney Bernard Van Wormer said the sentence was appropriate for Bessigano, who served time prison for killing a neighbor's rottweiler in St. John Township in 1993, and was jailed again in 2001 for killing a chicken, and having sex with it.

He was badly beaten in the Porter County Jail while awaiting sentencing in 2001, and has been in and out of psychological treatment for schizophrenia since childhood, his mother has said. Bessigano has told investigators in the past that he believes he is an animal trapped in a human's body.

I am starting to wonder if there is some weird Lost-like karma around the number 33 in the federal sentencing system.  In addition to being the number of months given to Bessigano for downloading animal porn, it is also the term given to federal judge Samuel Kent earlier this week and the term that  served by Victor Rita, the defendant whose within-guideline sentence was affirmed in the first big post-Booker federal sentencing ruling by SCOTUS.

Speaking of Lost, I am really worried that tonight's season finale will produce still more build-up and still too little delivery.  But I hope I am wrong.

May 13, 2009 in Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Interesting post-DP repeal ruling from the New Jersey Supreme Court

As detailed in this local article from New Jersey, the "state Supreme Court ruled yesterday that a murderer whose case was proceeding as New Jersey abolished the death penalty can be sentenced to life without parole, even though the state had no such punishment when he was convicted."  The ruling came in State v. Fortin, No. A-27-08 (NJ May 12, 2009) (available here), and here is a paragraph from the opinion's syllabus that summarizes the majority's holding:

Because defendant had prior notice of the former statute’s death penalty procedures, there is no impediment to proceeding to the penalty phase under the former statute. If the jury concludes that the State has proven beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors, rendering defendant subject to a death sentence under the former law, then imposing a life-without-parole sentence under the new law would not violate the Ex Post Facto Clause.  If the jury finds in favor of a non-death sentence, defendant must be sentenced under the law as it existed at the time of the offense, to a term of thirty years to life with a thirty-year parole disqualifier.

May 13, 2009 in Sentences Reconsidered | Permalink | Comments (0) | TrackBack

You make the call: should PA file a brief in Graham and Sullivan

This new article from the Pittsburgh Tribune-Review, which is headlined "U.S Supreme Court may alter juveniles' life sentences," spotlights why Pennsylvania will be very interested in the two juve LWOP cases, Graham and Sullivan, recently taken up by the Supreme Court (basics here and here):

Civil-rights advocates are cautiously optimistic that the days of sentencing juveniles to life in prison with no chance of parole could soon end.  Their hope lies with the U.S. Supreme Court, which said this month it would review two cases from Florida in which juvenile offenders claim their life sentences — one for rape, the other for robbery — are unconstitutional.

Legal experts cautioned the court could rule in a number of ways, and said some outcomes might not change Pennsylvania's sentencing guidelines.  But they added that if the court rules life sentences for juveniles are inhumane, the effect on Pennsylvania — which has about 450 juvenile lifers, more than any other state — could be huge.

"The impact here would be significant, profound and immediate," said Bradley Bridge, an attorney with the Defender Association of Philadelphia who opposes sentencing juveniles to life in prison without parole. "We would go back into court rapidly, seek to have all of the juvenile life sentences ruled unconstitutional, and have them re-sentenced."...

Justices could rule in various ways, according to legal experts.  For example, the Supreme Court could uphold the sentences, or deliver an opinion specific to non-lethal crimes.  All of Pennsylvania's juvenile lifers were convicted for first- or second-degree murder, Bridge said.  Another possible outcome: The court could set an age limit determining when such sentences are inhumane.

For the sake of discussion, I encourage readers to imagine being in the role of a leading legal actor in Pennsylvania — say, Attorney General or the Governor's legal counsel.  How would you assess and decided whether and how Pennsylvania might participate in the Graham and Sullivan cases? 

At one level, you have to realize that if SCOTUS rules for the defendant in either or both cases, there will be lots of (costly and cumbersome) follow-up litigation in the state.  At another level, however, you might be supportive of the idea that juve LWOP should not be possible for non-murder crimes, and might want to encourage the Justices to make an explicit constitutional distinction between LWOP for murder and LWOP for other crimes.  So, might you urge advocating in support of Florida's extreme use of juve LWOP in these non-murder cases, or perhaps instead urge supporting the defendants in a brief that encourages the Justices to draw a constitutional line that could help preserve the law in the Keystone State?

Of course, Pennsylvania might opt not to participate at all, and perhaps any state considering getting involved should fear that a decision to participate could prompt certain Justices to want to issue a broader ruling than the facts in Graham and Sullivan demand. 

So dear readers, should Pennsylvania (and other states) jump into the Graham and Sullivan juve LWOP fray?

Other recent posts on Graham and Sullivan:

May 13, 2009 in Graham and Sullivan Eighth Amendment cases | Permalink | Comments (24) | TrackBack

Spring issue of FAMMGram now available

I just received via e-mail this note from the folks at FAMM detailing the contents of its latest newsletter:

The FAMMGram still includes all of the latest sentencing information you expect from FAMM. Click here to thumb through the pages, which you can download and print.
Top stories include:
Stars align for sentencing reform -- From the White House to State Houses across the country, sentencing reform is becoming a reality.
Seizing the moment for justice -- Federal lawmakers push legislation to address the sentencing and criminal justice crisis.
New York leads the way for states embracing sentencing reform -- Lawmakers can no longer ignore skyrocketing prison populations, high costs and ruined lives.

May 13, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (0) | TrackBack

"Determining When Severe Mental Illness Should Disqualify a Defendant from Capital Punishment"

The title of this post is the title of this piece from Bruce Winick appearing on SSRN. Here is the abstract:

The American Bar Association and other professional organizations have adopted policy statements calling for an exclusion from capital punishment for those with severe mental illness at the time of the offense. If this policy is adopted, either legislatively or judicially under the Eighth Amendment, a procedural question would arise concerning how this mental illness/capital punishment exclusion issue is determined.  Should the issue be determined by pretrial motion made to the trial judge or a special jury convened for this purpose?  Should it be determined by the capital jury at the penalty stage that would follow conviction for a capital crime?

This Chapter analyzes the various factors that should be considered in resolving the procedural question of how this exclusion from capital punishment should be determined, and argues that Eighth Amendment values and considerations of accuracy, cost, and therapeutic jurisprudence all tilt strongly in the direction of having the issue decided pretrial by the trial judge.  The chapter then examines whether having the trial judge make the determination would be inconsistent with Ring v. Arizona (2002), which reflects the Sixth Amendment’s constitutional preference for jury determinations of disputed issues of fact in capital sentencing.  Finally, the chapter analyzes whether the prosecution or the defense should have the burden of persuasion on the Eighth Amendment question, and by what standard of proof that burden should be carried.

May 13, 2009 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

May 12, 2009

Still more disturbing details emerging (and not emerging) from Kent sentencing

The more I learn about the crimes and sentencing of former federal judge Samuel Kent, the more troubled I am about how this case has been handled by federal prosecutors and the presiding federal judge.  And I remain especially aggravated that Kent will probably end up serving less than two years in federal prison while far less advantaged individuals are serving much more time for seemingly much less serious crimes.

Consider first this potent victim statement post on-line by the Houston Chronicle.  It details how extensively Kent sexually abused one particular court employee, how "he hurt so many people in so many ways," and how his decision to lie repeatedly about his criminal acts further exacerbated the harms suffered by his victims.

Now consider an excerpt from this potent post by lawyer Tom Kirkendall, who attended the sentencing and asks some keen and important questions about how this case was handled by everyone involved:

The first hour or so of the hearing was stupefying as prosecutors and Kent defense attorney Dick DeGuerin argued over objections to the government's pre-sentencing report. The main reason for the boredom was that, for the most part, no one except the lawyers in involved in the case and U.S. District Judge Roger Vinson knew what they were talking about. That vacuum of information was a direct result of Judge Vinson's dubious decision to keep a substantial amount of the information about the charges against Kent under seal and away from public scrutiny.

Judge Vinson's decision in that regard might have been somewhat defensible had the two victims of Kent's sexual assaults requested secrecy to preserve what little privacy that they could salvage from this ordeal. But neither of the victims requested such treatment, and my sense is that Kent didn't want it, either.

So, Judge Vinson decided to conduct this case largely outside the public eye for his own reasons. In my 30 years of practicing law, I have never seen the volume of information in a case placed under seal as was done in this case.

In sentencing Kent, Judge Vinson claimed that he was upholding the justice system by showing that even a powerful judge is not above the law. Unfortunately, he undermined that same system by preventing the public from learning the details of the accusations against Kent and Kent's responses to those allegations. Although the first part of the hearing could have induced a snooze, the pace picked up dramatically when the two victims of Kent's assaults made their way to the podium to make their victim statements to the court. Both victims were extremely impressive in their presentations, describing the emotional and family carnage that Kent's assaults and abuse of power caused.  We also learned tidbits of information that likely would have been already been revealed had Judge Vinson not maintained such tight control over information... [including that a] "culture of fear" existed among employees at the Galveston federal courthouse as a result of Kent's manipulative behavior and frequent drunkenness....

[N]ow it appears that Kent was drinking heavily for much of the past decade and that he was frequently intoxicated while at the courthouse.... Where were Kent's "friends" who knew about his excessive drinking and other personal problems, and were in a position to intervene and help him before it was too late?

What are we to make of the federal government's human resources apparatus that an entire federal courthouse could have been placed under a culture of fear by the abusive behavior of one man?

And doesn't the Fifth Circuit Judicial Council have some explaining to do on why it issued its agreed order of public reprimand of Kent without interviewing either of the victims during the council's investigation?

Finally what are we to conclude about our justice system that the Houston Chronicle -- which, along with its coverage of Hurricane Ike, should have been won a Pulitzer Prize for its reporting on the Kent case -- provides much more information to the public about the crimes of an abusive judge than the prosecution of that judge?

Related posts on the Kent proceedings:

May 12, 2009 in Celebrity sentencings | Permalink | Comments (15) | TrackBack

FSR issue on "second look" sentencing reforms now on-line

I am very pleased to report that the latest issue of the Federal Sentencing Reporter is available on-line. The issue is focused on "second look" sentencing reforms, and is largely a product of the efforts of Margaret Colgate Love. Thanks to Margy's extraordinary organization work, FSR has the honor of devoting an entire issue to the proceedings and papers from the Roundtable on “Second Look” Sentencing Reforms organized by the American Bar Association Commission on Effective Criminal Sanctions.

The major articles of this latest FSR issue are listed below and can be accessed electronically here.  (A full subscription to the Federal Sentencing Reporter can be ordered on-line here.)



Other recent FSR issues:

May 12, 2009 in Recommended reading | Permalink | Comments (3) | TrackBack

"Ohio judge sentences 2 teens for sexting"

The title of this post is the headline of this local article reporting the latest sexting sentencing news.  Here are the particulars:

Two Ohio teenagers caught sending or possessing nude photos on their cell phones have been ordered to surrender their phones, perform 100 hours of community service and receive counseling.   A Warren County Juvenile Court judge on Monday also sentenced one of the teens — a 15-year-old boy — to 30 days of house arrest.  The other teen, a 15-year-old girl, must write a paper detailing the dangers of "sexting."

I discovered that the local county prosecutor involved in this case issued this press release yesterday concerning these sentences.  Here are sections of the release, which provides more legal background and a notable quote:

The two Mason teens charged with sending and possessing nude photos on their cell phones, an act known as “sexting,” were sentenced today in Warren County Juvenile Court. The teens admitted to charges of contributing to the delinquency of a minor, misdemeanors of the first degree....

“This is a just and adequate punishment,” Warren County Prosecutor Rachel Hutzel said. “It sends a message to the teens of Warren County that this is not a joke, this is a serious issue that can have long lasting consequences. At the same time if these teens comply with the terms of their sentence their records will be expunged and this will have no legal impact on their adult lives. We are pleased with the standard that the judge set,” Hutzel added.

Some recent related "sexting" posts:

May 12, 2009 in Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

My kind of drunk driving sentence ... in Norway

I was intrigued and pleased to see this press report, headlined "Big fine follows short drive," discussing a noteworthy drunk driving sentence handed down recently in Norway:

A Norwegian businessman was ordered on Tuesday to pay a fine of 700,000 kroner for driving 400m while drunk, a court said.  Due to the man's wealth, the court in the southern Norwegian county of Aust-Agder handed down a heavier-than-usual sentence, which would normally be equivalent to a month-and-a-half's gross salary for the accused.

"The principle of proportionality implies that we should take into account the entire wealth of the person in cases where the defendant is more well off than most other people," a copy of the verdict obtained by AFP read.

The 49-year-old man is the heir of a rich shipping family.... The man was also ordered to take part in an alcohol rehabilitation programme — failing which he will have to serve 18 days in jail — and he had his driver's licence suspended for two years and three months.

The man was arrested in October 2008 after he was found to have more than nine times the permitted blood-alcohol level an hour after he was stopped by police. The man told the court that he had only driven 300 to 400m, and that, aware of his condition, he was going to meet friends to ask them to take him home.

As regular readers know, I am a fan of alternatives to incarceration and also a fan of tougher sentences for drunk drivers (primarily in the hope of achieving a measure of general deterrence for what seems like a deterable crime).  Thus, making a rich very guy pay over $100,000 even for a short drunk drive sounds about right (I think I the kroner/US dollar exchange rate is about 7:1).  Moreover, not only has this sentence made international news, it also has netted Norway's government a nice chunk of change that it can use on rehabilitation programming or other crime prevention measures.

May 12, 2009 in Criminal Sentences Alternatives, Sentencing around the world | Permalink | Comments (4) | TrackBack

Charges dropped against Paul House of House v. Bell fame

This AP piece, headlined "Charges dropped against former TN death row inmate," provide the rest of the story of a notable SCOTUS case from a few years back.  Here is how it starts:

Prosecutors dropped charges on Tuesday against a former inmate who spent two decades on Tennessee's death row before the U.S. Supreme Court questioned his guilt.

Prosecutors acknowledged in a surprise petition that new evidence raises doubts that Paul House acted alone in the 1985 death of a young mother and clouds his possible role. House, who spent 22 years on death row, has been under house arrest while awaiting a new trial.

May 12, 2009 in Death Penalty Reforms | Permalink | Comments (22) | TrackBack

Split Ninth Circuit rejects Commerce Clause challenge to possession of body armor crime

A Ninth Circuit panel today split over an interesting Commerce Clause issue relating to a federal criminal statute in US v. Alderman, No. 07-30186 (9th Cir. May 12, 2009) (available here).  Here is how the majority opinion starts:

This case of first impression in the Ninth Circuit requires us to consider whether Congress has the authority under the Commerce Clause of the United States Constitution, art. I, § 8, cl. 3, to criminalize the possession by a felon of body armor that has been “sold or offered for sale in interstate commerce.” 18 U.S.C. §§ 931 and 921(a)(35)..... We conclude that we are bound by [SCOTUS and Ninth Circuit] precedent — absent the Supreme Court or our en banc court telling us otherwise — and that the felon-in-possession of body armor statute passes muster.

May 12, 2009 in Who Sentences | Permalink | Comments (1) | TrackBack

A pair of notable and important rulings in another sad child porn downloading case

I just received a copy of a pair of notable (and notably brief) rulings from a federal district court here in Ohio in yet another sad child porn downloading case.  The two rulings in US v. Szymanski, No. 3:08 CR 417 (N.D. Ohio 2009), can be downloaded below, and they address  (1) the authority of a district court to sentence below the statutory mandatory minimum in a receipt/possession child porn case, and (2) the first has to do with the authority of a district court to stay a sentence pending appeal.  Here are snippets from each opinion that spotlights some of the reasons they are so interesting:

The specific question raised in the instant case is whether this Court can sentence Defendant below the mandatory minimum of five years, or stated differently, whether the mandatory minimum is grossly disproportionate to the crime.  A district court is not authorized to sentence a defendant below the statutory mandatory minimum unless the Government files a substantial assistance motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, or a defendant falls within the safety valve of 18 U.S.C. § 3553(f).  However, neither of these “outs” are available in a child pornography case under 18 U.S.C. § 2252.....

Defendant argues that the mandatory minimum sentencing scheme of § 2252(b) conflicts with the Court’s mandate to fashion a sentence under § 3553(a).  It appears the Sixth Circuit has not yet evaluated the potential conflict between mandatory minimum sentences and the factors under § 3553(a) through the lens of the Supreme Court’s decision in Booker and its progeny.  This conflict is important because, in this case, the Court finds that the mandatory minimum exceeds a fair and just sentence that is sufficient but not greater than necessary to comply with § 3553(a)....

The problem [of unwarranted disparities] is especially apparent in a case like this where the differences between the receipt of child pornography and the possession of child pornography is a distinction without a difference.  Yet one carries a mandatory minimum of five years while the other has none.  Conduct which could apply to either statute necessarily results in the potential for gross disparities in sentences....

This tension between possession and receipt effectively places in the prosecutor the ability to determine the defendant’s sentence, a role reserved for the judiciary.  In short, a prosecutor through a charging decision controls the sentencing range in cases involving the possession and/or receipt of child pornography.  This Court believes the Sixth Circuit should determine, at least in this context, whether mandatory minimum sentences violate the separation of powers since the advent of Booker and is progeny.

Download Szymanski Sentencing Memorandum

A defendant can be released pending appeal under 18 U.S.C. § 3145(c) if the Court finds “it is clearly shown that there are exceptional reasons why such person’s detention would not be appropriate.”...  For the above reasons, as well as those expressed at the Sentencing Hearing and in the other post-hearing Orders which detail the reasons for a downward variance, this Court finds it appropriate under the circumstances of this case to stay execution of the sentence pending appeal. Defense counsel shall notify this Court upon the conclusion of all appeals at which time Defendant shall report either to the Marshals for service of his sentence or to this Court for resentencing.

Download Szymanski Order re Release Pending Appeal

May 12, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (16) | TrackBack

Lots of new SCOTUS nominee posts at The Volokh Conspiracy

The bloggers at The Volokh Conspiracy have a bunch of notable new posts (with links and comments) on SCOTUS nominee buzz:

In addition, any and all Wikipedia fans will want to check out this start of what looks to be a series of posts on from an "administrator on the site and a member of the in-house Arbitration Committee."

May 12, 2009 in Who Sentences | Permalink | Comments (1) | TrackBack

Revised discussion of criminal justice plans on White House website

Though perhaps this is old news, I just noticed that the discussion of criminal justice issues has changed over at the Civil Rights webpage on WhiteHouse.gov.  As detailed in this old post, this webpage used to take a bullet-point approach to describing agenda items, and the key bullet points were "Reduce Crime Recidivism by Providing Ex-Offender Support"; "Eliminate Sentencing Disparities"; "Expand Use of Drug Courts."  Now this page has just this paragraph with a single heading:

Lead Criminal Justice Reform

The President will lead the fight to build a more fair and equitable criminal justice system.  He will seek to strengthen federal hate crime legislation and will work to ensure that federal law enforcement agencies do not resort to racial profiling.  He supports funding for drug courts, giving first-time, non-violent offenders a chance to serve their sentence, if appropriate, in drug rehabilitation programs that have proven to work better than prison terms in changing behavior. President Obama will also improve ex-offender employment and job retention strategies, substance abuse treatment, and mental health counseling so ex-offenders can successfully re-join society.

I am not sure the changed text suggests any formal changes in policy plans.  However, the prior text stated expressly that President Obama and VP Biden favored completely eliminating the crack/powder sentencing disparity.  It is somewhat peculiar that the crack/powder discussion has now itself been completely eliminated from WhiteHouse.gov even though Obama's Justice Department has now urged Congress to completely eliminate the crack/powder disparity.

Meanwhile, I cannot help but use this opportunity to spotlight, yet again, that President Obama has completely failed to make any use of his clemency power, even though a few strategic clemency grants would present an especially effective means to show he was genuinely committed to "lead[ing] the fight to build a more fair and equitable criminal justice system" and to "giving first-time, non-violent offenders a chance" to avoid excessive and ineffectual prison terms.  I stress this point again and again because, though President Obama has been very active in his first 100+ days on so many other issues, when it comes to hope and change for the federal criminal justice system, he can and should be assailed for being all talk and little action.

Some old and new related posts:

May 12, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (9) | TrackBack

How do you say Mistretta with a scottish brogue?

This year marks the 20th anniversary of the Supreme Court's decision in Mistretta, which declared that the basic institutional structure for the creation of the federal sentencing guidelines were constitutional.  And now, as detailed in this brief report, it appears that there is now a similar constitutional debate about sentencing guidelines in Scotland:

Top judges are attacking "fundamentally unacceptable" Scottish Government plans for a new body to draw up guidelines on sentencing. The country's two most senior judges will tell MSPs the plans are unconstitutional and would undermine judicial independence.

Additional details on this sentencing debate can be found in this BBC story.  (Now, if I can just figure out a way to get invited to Scotland to participate this important sentencing debate, ideally while playing at St. Andrews or some other classic golf course.)

May 12, 2009 in Sentencing around the world | Permalink | Comments (0) | TrackBack

May 11, 2009

A favorite footnote of the day

M6268 Though not of any consequence to the ruling in the case (or really to anything else), I could not resist a little monkeying around by spotlighting here a favorite footnote from a Third Circuit panel ruling in a capital case today.  Here is the textual paragraph for context and then the footnote: 

After a psychiatric evaluation, Hammer presented an insanity defense. A forensic psychiatrist testified that Hammer suffered from dissociative identity disorder (formerly known as multiple personality disorder) and that one of his alter personalities[FN2] killed Marti; therefore, the defense argued, Hammer himself was not legally responsible.

[FN2] The defense’s forensic psychiatrist testified that Hammer had four alter personalities: 1) Jocko, a violent male; 2) Tammy, a female; 3) Wilbur, a child; and 4) Jasper, a chimpanzee.  He contended that Jocko killed Marti.

Here is my follow-up question: how exactly could the forensic psychiatrist know that the "Jasper" alter personality was a chimp and not, say, a gorilla or a baboon?   I have to assume that "Jasper" was not a talking chimpanzee, so how exactly was he able to inform the forensic psychiatrist concerning which member of the ape/monkey family belonged to? 

I guess I will just never fully understand forensic psychology.

May 11, 2009 | Permalink | Comments (19) | TrackBack

Lots of criminal cases on the SCOTUSblog watch list

I see from this new post at SCOTUSblog that the folks over there have about a half-dozen criminal law cases among the group on their list of “Petitions to Watch” that are up for consideration at the Justices’ private conference on May 14.  I suspect that only a few of the cases listed there will produce a cert grant, and I am rooting hard for the Supreme Court to take up Dunphy, a case noted here concerning the application of the crack retroactivity rules.

I would be interested to hear if others have favorite criminal issues from the SCOTUSblog watch list or elsewhere lurking in the cert pool.  On this front, consider this lengthy post from Crime & Consequences, titled "A Ninth Circuit Stinker Goes to SCOTUS."

I think the Justices still have to grant a good number of new cases in order to have a full Fall of arguments, so I hope everyone will gear up their case pitches before we reach the usual summer slow-down.

May 11, 2009 in Who Sentences | Permalink | Comments (5) | TrackBack

Notably different new capital statements from state governors

These two afternoon headlines noting statements from Governors in Connecticut and Kansas caught my eye in light of never-ceasing public discussions of death penalty law and policy:

May 11, 2009 | Permalink | Comments (1) | TrackBack

More (disturbing?) details emerging about crimes and sentencing of former Judge Kent

The US Department of Justice has this official press release concerning today's federal sentencing of former federal judge Samuel Kent.  It provides this summary review of the charges involved in Kent's indictment and plea:

U.S. District Judge Samuel B. Kent was sentenced today to 33 months in prison for obstruction of justice related to an investigation of a judicial misconduct complaint filed against him....

On Aug. 28, 2008, a grand jury in the Southern District of Texas indicted Kent, who was at that time a sitting U.S. District Judge for the Southern District of Texas, on two counts of abusive sexual contact and one count of attempted aggravated sexual abuse for his alleged assaults in 2003 and 2007 on an employee of the Office of the Clerk of Court identified as Person A.  On Jan. 6, 2009, the grand jury returned a superseding indictment against Kent.  The superseding indictment incorporated the original charges and added three counts: one count each of abusive sexual contact and aggravated sexual abuse, based on Kent’s alleged repeated assaults on another U.S. District Court employee identified as Person B, and one count of obstruction of justice, based upon his obstruction of the Fifth Circuit’s investigation into a misconduct complaint filed by Person A.

On Feb. 23, 2009, Kent pleaded guilty to obstructing the judicial misconduct investigation into his sexual assaults. As part of his plea, Kent admitted that in both 2003 and 2007, he engaged in non-consensual sexual contact with Person A without her permission. He also admitted that he engaged in non-consensual contact from 2004 through at least 2005 with Person B without her permission.

Kent was also ordered to pay a $1,000 fine as well as restitution of $3,300 to Person A and $3,250 to Person B.  Kent was ordered to surrender on June 15, 2009.

The fact that Kent was allowed, on the eve of trial, to plead guilty to only a single obstruction count has always disturbed me.  And information emerging from this new Texas Lawyer article about the sentencing reinforces many of my concerns:

The sentencing hearing included testimony from two former courthouse employees who alleged Kent had assaulted them.  Cathy McBroom, Kent’s former case manager, told Vinson, “I will forever be scarred” by what happened to her in Galveston.

She said that she would avoid Kent at the courthouse when he was intoxicated. “Being molested and groped by a drunken giant is not my idea of an affair,” McBroom said, noting that Kent falsely told others that she was pursuing him.

 The other woman, Donna Wilkerson, who worked as Kent’s secretary, said Kent “maliciously manipulated and controlled everyone around him.” She also said, “My life is forever changed.”

Hmmm... and restitution awards of a few thousand dollars are supposed to be fitting in this case?  For that matter, while I am asking questions about the outcome here, since Kent was allowed to plead only to an obstruction count, I am not sure of the basis for awarding restitution since, technically, the two women that Kent molested were not actually victims of his act of obstruction.  In the end, though, according to the Texas Lawyer article, it seems that the victims are content with outcome:

Following the sentencing, both women said they were pleased with the sentence, with McBroom noting, “You don’t have to put up with it, no matter who the person is.”

Related posts on the Kent proceedings:

May 11, 2009 in Celebrity sentencings | Permalink | Comments (5) | TrackBack

Lots of ink spilled about denial of en banc review in California capital case

Today the Ninth Circuit officially denied en banc review in a high-profile capital case from California, and some of the judge involved felt compelled to write over 100 pages of dense text about the decision.  All this discussion concerning the claims of defendant Kevin Cooper can be found at this link.  

The leading opinion dissenting from the the denial of en banc review starts with this significant first sentence: "The State of California may be about to execute an innocent man." 

Those who closely follow capital punishment in California know that this sentence cannot be quite right:  California has not been able to execute even an indisputably guilty man in over three years because of litigation over the state's lethal injection protocols.  Because of that on-going litigation, California is surely unlikely to "be about to execute" anyone for many more months (and perhaps even many years).

UPDATE:  I have now noticed that the Third and Fourth Circuits also both have rulings today in death penalty collateral appeals.  I wonder how often we get three capital habeas rulings from the federal circuits courts and none of them come from either the Fifth or Eleventh Circuits.

May 11, 2009 in Death Penalty Reforms | Permalink | Comments (8) | TrackBack

Any predictions on former Judge Sam Kent's sentence? UPDATE: 33 months

This article in today's Houston Chronicle indicates that former federal judge Samuel Kent has his sentencing hearing today:

Samuel Kent, who wielded power as a federal judge for 18 years, is very likely to be sentenced to prison today for obstructing justice.  Kent, 59, pleaded guilty in February to obstruction of justice for lying to a judicial committee investigating an allegation he sexually harassed an employee.  The longtime Galveston judge also acknowledged that he’d had nonconsensual sexual contact with two female employees between 2003 and 2007.

Kent came to court this morning with his wife and three others.  He walked through the courthouse front door rather than using the secure back entrance for working jurists.  Prosecutors arrived in court with some of Kent's alleged victims and their attorneys.  The women who brought complaints against Kent cannot testify in court but were interviewed for the pre-sentencing report.

Five criminal charges against Kent related to the sexual contact were dropped.  But all of Kent’s actions are to be considered by Senior U.S. District Judge Roger Vinson of Pensacola, Fla., in determining Kent’s sentence.

The obstruction charge carries a maximum punishment of 20 years in prison.  Prosecutors requested that the man appointed to the bench by President George H.W. Bush in 1990 be sentenced to three years in prison, but Vinson is not bound by that recommendation.

Arthur Hellman, a Pittsburgh-based legal expert in judicial discipline, said Kent’s case will be closely watched.  “It is important because it implicates the ability of the judiciary to police itself,” Hellman said.  “If the sentence is substantially below the three years specified in the plea bargain, some people will say that the judge is going easy on a fellow judge. If the sentence is especially harsh, it will seem that Judge Kent is being made an example because of his position.”...

Judge Vinson handled Kent’s case in a very secretive manner by Houston standards.  Without being asked to do so, Vinson placed a gag order on the lawyers and witnesses to keep the jury from being tainted.  But even after Kent pleaded guilty and there would be no jury, Vinson continued the gag order until media challenged it and Kent could cite no law to keep it in place.  Vinson also had more than 20 sealed events before Kent’s plea.

As I have indicated in prior posts, I fear that former Judge Kent has already been treated too leniently given that he has admitted to illegal sexual conduct with two employees and then lied to fellow jurists when his illegal behavior started to be investigated.  I can think of few other (repeat) sex offenders who would have gotten such a sweet plea deal on the eve of trial and such respectful treatment from the court and federal prosecutors. 

In addition, I sense that the true victims here — the two women subject to former Judge Kent's sexual abuse — have been poorly treated by the federal criminal process despite the recent passage of the Crime Victim Rights Act designed to give them some statutory protections.  I sincerely hope their punishment interests are fully reflected in whatever sentence was recommended by the presentence report and whatever sentence gets imposed by Judge Vinson.

I also hope, writing now as an professor who used this case in a class as an example of the challenges of modern guideline sentencing (see here and here and here), that the guideline calculations in the case become a matter of public record at some point.  Notably, for anyone interested, the students in my class suggested sentences ranging from as low as 6 months and as high as 15 years when I urged them to consider what sentence they might impose without the aid of any guidelines or other sentencing rules beyond the statutory min and max provided for the offense of conviction.

Related posts on the Kent proceedings:

UDPATE:  The article linked above now reports the results of the sentencing: "Samuel Kent, who wielded power as a federal judge for 18 years, was sentenced to 33 months in federal prison today for obstructing justice."  As suggested above, this seems like a pretty lenient sentence given his admitted sexual conduct, but his plea deal revealed that this was all that the federal prosecutors were looking for.  I hope to learn more about the particulars of the proceeding, and I likely will have further comments about this high-profile case if/when more details from the sentencing emerge.

May 11, 2009 in Celebrity sentencings | Permalink | Comments (4) | TrackBack

California bill seeks to eliminate juve LWOP

As detailed in this Sacramento Bee article, which is headlined "Calif. bill would give young killers rehab chance," a California state legislator is seeking to eliminate LWOP sentences for juveniles. Here are some of the interesting particulars:

State Sen. Leland Yee believes that wayward kids should have a second chance to make good - even when they commit murder or other serious crimes.  Yee, a San Francisco Democrat who has a doctorate in child psychology, has introduced legislation that would allow courts to reduce the sentences of inmates who were given terms of life in prison without the possibility of parole when they were minors....

The bill, which is on the Senate Appropriations Committee's agenda on Monday, would allow a prisoner who was sentenced to life without parole as a minor to petition a court for a new sentencing hearing after the inmate had served at least 10 years.

The court would have to grant the hearing -- but not necessarily agree to change the sentence -- if it found that the inmate met at least three of eight criteria.  Those standards include the fact that inmate was an accessory to murder but not the actual killer, did not have prior convictions for assault or other violent crimes and had demonstrated remorse.

Elizabeth Calvin, children's rights advocate with Human Rights Watch, an international group that investigates allegations of human rights violations, said there are about 250 California inmates who are serving life without parole sentences handed down when they were minors....

Scott Thorpe, chief executive officer of the California District Attorneys Association, one of the law enforcement groups that opposes the bill, said the standards that courts must consider in determining whether to grant a new sentencing hearing are too weak.... "You're going to set up a system where hearings are going to be mandated which are mini-trials.... We're just concerned about the cost of this and the ease of which it would be established to have these kinds of hearings. The standards are too low."

It is interesting to speculate — and useful for researchers to follow — whether legislative proposals to eliminate juve LWOP will get more or less traction now that the Supreme Court has decided to take up two juve LWOP cases with its cert grants last week in Graham and Sullivan (basics here).  Importantly, because both Graham and Sullivan involve non-homicide crimes, the Supreme Court is unlikely in those cases to address all uses of LWOP for kids and thus bills addressing juve LWOP more broadly are likely to be very important and consequential no matter what the Supreme Court eventually does in these Eighth Amendment cases.

Some other posts on juve LWOP and on recent SCOTUS grants:

May 11, 2009 in Graham and Sullivan Eighth Amendment cases, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Bail and sentencing issues take center stage in Dreier case

This New York Law Journal article, headlined "Guilty Plea Expected, but Dreier Seeks to Stay Free a Little Longer," details how another high-profile white-collar prosecution is about to become a case about bail and sentencing.  Here are the details:

Disgraced attorney Marc S. Dreier will journey this afternoon from midtown Manhattan to a downtown federal courthouse, where he is expected to plead guilty to peddling fictitious notes to investors.

It is uncertain whether Dreier will be allowed to return to his penthouse apartment at 151 E. 58th St. before imposition of what will surely be a lengthy prison term.  But the principal job of defense lawyer Gerald Shargel will be to keep his client out of jail for as long as possible.

Starting with the December arrest of the former head of now-defunct, 250-attorney Dreier LLP, Shargel waged an extended battle with Assistant U.S. Attorney Jonathan Streeter to have his client released from pretrial detention, eventually prevailing when Southern District of New York Judge Jed S. Rakoff ruled Feb. 5 that Dreier could be confined to his apartment under guard pending resolution of the case. 

"We're going to have an issue about bail pending sentencing because the government is seeking to have him remanded and I'm trying to keep him out," Shargel said Friday.  The problem for Shargel, who met with his client at his apartment on Thursday to prepare for today's hearing, is that, once Dreier pleads guilty, the burden shifts to the defense on the question of remand....

At the hearing scheduled for 5 pm today before Rakoff, Dreier is expected to admit to every count in an indictment charging him with selling fictitious notes to at least 13 different funds and three individuals between 2004 and 2008: money laundering, conspiracy to commit securities and wire fraud, one substantive count of securities fraud and five substantive counts of wire fraud.

Dreier, 58, faces a sentence of 20 years in prison on each of the most serious charges against him, but Shargel's hope is for a sentence that leaves open the possibility that he will get out of prison before the end of his life.   In a recent proceeding, Shargel stressed to Judge Rakoff that his client was prepared to accept full responsibility for his actions, a fact that could be considered in his favor at sentencing.

Shargel would not comment on sentencing issues Friday. But with a client who was caught red-handed, the veteran defense attorney has indicated from the outset that the case would be resolved short of trial with a guilty plea.  "Given the facts and circumstances of the case, I thought both the public and the people involved in the matter had every right to know what our position was," Shargel said Friday.

May 11, 2009 in White-collar sentencing | Permalink | Comments (0) | TrackBack

May 10, 2009

The arrested development of the death penalty in Connecticut

As detailed in this article from the Hartford Courant, the administration of the death penalty (or the lack thereof) has nearly everyone in the Nutmeg state frustrated.  Here is a snippet from the article:

Many on both sides of the debate over the death penalty have come to the same conclusion: It is unworkable.  Only one inmate — serial killer Michael Ross — has been executed in Connecticut in nearly 50 years, and that was only after he waged a legal fight to have his sentence imposed.   But they disagree whether the death penalty should be eliminated or repaired.

State Rep. Michael Lawlor, co-chairman of the legislature's judiciary committee and an opponent of capital punishment, said that no convicted killer is going to be executed in Connecticut unless he wants to be, resulting in a legal process that's cumbersome, costly and frustrating to victims' families.

In March, the committee voted to abolish the death penalty, sending the proposal to the General Assembly. On Friday, legislators heard Chief State's Attorney Kevin Kane's plan to fix it.  Kane proposed streamlining the appeals process by requiring transcripts of proceedings to be prepared more quickly and limiting certain types of petitions in state courts. Doing so would hasten the process and spare victims' families the pain and frustration of living in limbo for years, even decades, while death penalty cases wend their way through the courts, he said.

But critics, including Chief Public Defender Susan O. Storey, said that Kane's prescription for a more workable death penalty would not substantially shorten the process. "If you really want death penalty reform, you can't raise false hopes for victims' families," she said.  To Storey, a more just and moral solution is to do away with capital punishment and sentence those convicted of the most serious crimes to life in prison without the possibility of release.

May 10, 2009 in Death Penalty Reforms | Permalink | Comments (10) | TrackBack

Blagojevich gets a bargain rate for his defense team

This interesting article, headlined "Blagojevich Lawyers Agree to $110-an-Hour Fee Limit ," explains how former Illinois Governor Rod Blagojevich is getting some top-shelf legal help at cut-rate prices:

Ousted Illinois Gov. Rod Blagojevich's lawyers have reluctantly agreed to be paid far below the rate some of them usually charge in return for being allowed to tap his $2.3 million campaign fund.

In court papers filed Friday morning, the lawyers accepted the rate of $110 an hour, which is the legal limit court-appointed lawyers can charge in federal cases. Big-name criminal defense attorneys often work on a flat-fee basis but when computed as hourly rates, their charges can range up to $700 and beyond.

The debate over fees between prosecutors and the Blagojevich defense team headed by attorney Sheldon Sorosky has been dominating developments in the case for weeks.

Blagojevich is charged with scheming to sell or trade President Obama's U.S. Senate seat and use the muscle of the Illinois governor's office to squeeze companies with state business for campaign contributions. He has pleaded not guilty.

So far Sorosky is the only attorney to commit himself in court to represent the now-impeached governor. Others have been said to be waiting to see if they would be paid.  Attorneys say the campaign fund is the only ready source of money to pay fees.

Assistant U.S. Attorney Reid Schar and other prosecutors have argued that it might not even be proper to tap the fund which was meant to bankroll political campaigns -- not Blagojevich's defense against federal corruption charges.  Last week, however, they offered to allow defense attorneys to pay themselves out of the fund as long as they confined themselves to the $110-an-hour rate.  They said that if the attorneys billed the fund at a higher rate, it would soon be exhausted and taxpayers would have to provide the fees for the rest of the case.

U.S. District Judge James B. Zagel, who is presiding over the case, said the defense attorneys would be allowed to take that deal or ask for a hearing on why they should be allowed to bill at a higher rate. They took the $110-an-hour rate.

May 10, 2009 in Celebrity sentencings | Permalink | Comments (3) | TrackBack

"Ohio lawmakers mull sweeping reform to cut prison populations"

The title of this post is the headline of this local article providing a window into the ways in which lean economic times are impacting prison nation and the usual debates over balancing budgets and public safety. Here is an excerpt:

With a near-record 50,919 inmates behind bars as of May 4, Gov. Ted Strickland said he has no choice but to start releasing people because the state can't afford it. His proposal isn't just a scare tactic.

Ohio lawmakers are considering sweeping prison reform in which prisoners will be sent to live in halfway houses in communities -- or be paroled to a house down the block. Many more will never set foot in a prison under a proposal to amend sentencing laws so some crimes are no longer considered serious enough to warrant prison.

Strickland predicts his proposed changes could reduce the prison population by 6,736 indefinitely and save state taxpayers almost $28 million per year....

Ohio Department of Rehabilitation and Correction director Terry Collins pledges the plan is "smart on crime." Violent inmates and sex offenders will stay behind bars, he promises.... Collins recently told legislators that if the state doesn't pass reforms, he might recommend emergency release of prisoners.

Hamilton County Prosecutor Joe Deters said the answer is simple: more money for prisons. Opponents like Deters say no one should get out before a judge says so.  The plan compromises public safety for the sake of a balanced budget, they say.

Deters is vehemently against releasing offenders to free up prison beds to avoid situations like parolee and career criminal Anthony Kirkland -- out of prison just five months -- being charged with strangling 13-year-old Esme Kenney as she ran in her Cincinnati-area neighborhood in March.

Deters sent letters to every state legislator urging them to vote against changes to Ohio's sentencing laws. "The legislature's first responsibility should be to secure public safety -- not to undermine it," he wrote.

May 10, 2009 in Scope of Imprisonment | Permalink | Comments (11) | TrackBack