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September 12, 2009

Seeking thoughts on a "professional judiciary" for sentencing law

Over at Concurring Opinions, Gerard Magliocca has this post, titled "A Professional Judiciary?", which note and criticizes the early pattern of President Obama to elevate lower court judges in his nomination choices. Here it is in full:

Yesterday I was struck by an interesting fact. Thus far, all but one of President Obama’s Circuit Court nominees are sitting District Court judges. Justice Sotomayor, of course, was promoted by President from the Second Circuit after serving on the District Court in New York.

I think this is a bad trend. One of the strengths of our judiciary, in contrast to the European civil service tradition, is that we draw on people with a wide variety of backgrounds (private attorneys, elected officials, prosecutors, and . . . yes, professors).  Narrowing the pool to sitting judges harms the quality of the bench and creates undue pressure on District judges to act in a politically safe way in the hope of getting promoted.  There’s nothing wrong, of course, with the occasional District Judge elevation. But can the White House really find nobody else who is qualified?

Regular readers know I am a big fan of judicial diversity, so I am also troubled by the early pattern -- though I also expect it to change over time because I think it mostly represents Obama's political desire for "safe" picks rather than a judgment that others are not qualified or needed for circuit courts.  That said, I do think federal circuit sentencing law might be improved by having more circuit judges who have experienced sentencing first-hand.

Reflecting more broadly on these issues, I was thinking about the potential value of a "professional judiciary" that was much more diverse and dynamic in its judicial history than what we are seeing in President Obama's early picks.  Specifically, what might Gerard and others think if Obama (or some other president) made a practice of regularly nominating sitting state lower court judges (including juve judges and other specialty court judges) on the federal bench?  (More than a few nominated district and circuit judges cross-over this way, but I think it is more often the exception than the rule.)

Gerard's post has generated a lot of thoughtful comments over at CO, and I hope readers of this blog might also get into the act (and, of course, give the discussion a special sentencing spin, as appropriate).

September 12, 2009 in Who Sentences | Permalink | Comments (7) | TrackBack

Updates on all the prison craziness in California

As detailed in this Los Angeles Times article, legislators in California finalized its "plan to cut the state's giant prisons budget, passing a hard-fought measure that would reduce the inmate population by thousands but stop far short of solving the overcrowding crisis."  Here are more of the specific details:

The prisons measure, SBX3 18 by Sen. Denise Moreno Ducheny (D-San Diego), would reduce supervision of low-level offenders on parole so they could not be sent back for violating the terms of their release. It would allow some offenders to earn shorter terms by completing rehabilitation programs.

Legislative officials estimated that under the measure, the prison population would fall by 20,000 to 25,000 over two years.

But the bill no longer contains provisions passed by the Senate that would have moved thousands of inmates to home detention and created a commission with the power to change state sentencing laws. Sen. Gloria Romero (D-Los Angeles), called the final bill "prison lite," although she voted for it, and declared: "What's not in the bill is a resolution and solution to this prison crisis."

The vote was the culmination of weeks of controversy and dispute over how to safely cut the population of the state's overcrowded prisons to ease budgetary pressure and satisfy a federal court order to reduce the number of inmates.

The Senate, despite fierce opposition from law enforcement, had approved a broader package of cuts earlier in the summer to reduce the number of inmates by 37,000 over two years, nearly the amount federal judges have demanded.

Meanwhile, this SCOTUSblog post details that the Supreme Court also issued an order in response to California's request for a stay from having to comply with the prison reform order issued by a three-judge panel that demanded a deeper set of prison population cuts:

The Supreme Court refused on Friday evening to interfere with a federal court order requiring the state of California to draw up a plan for the mandatory release of up to 46,000 prison inmates to relieve overcrowding in state penal facilities.  In doing so, however, the Court indicated it would have an opportunity to examine any implementation of such a release before it actually occurs.

The Court order in Schwarzenegger, et al., v. Coleman, et al. (application 09A234), noted that the three-judge District Court had “indicated that its final order will not be implemented until this Court has had the opportunity to review the district court’s decree.”

September 12, 2009 in Scope of Imprisonment | Permalink | Comments (8) | TrackBack

"What Prevents the Application of the Thirteenth Amendment in Prison?"

The title of this post is part of the title of this interesting-looking new paper on SSRN from Raja Raghunath, which is fully titled "A Promise the Nation Cannot Keep: What Prevents the Application of the Thirteenth Amendment in Prison?". Here is the abstract:

The walls of the prison are not solely physical. The doctrine of judicial deference to prison officials, which compels courts to defer to the discretion of those officials in almost all instances, obstructs the effective scrutiny of modern practices of punishment. Since its ratification, the Thirteenth Amendment - which prohibits slavery or involuntary servitude anywhere within the United States or its jurisdiction, except where imposed 'as a punishment for crime whereof the party shall have been duly convicted' - has been seen by courts as one brick in this wall. This article makes the novel argument that, properly read, the amendment should instead function as a breach in this wall - one of sufficient size to allow some needed light to shine within.

Although in some states inmates may still be sentenced to hard labor, in most systems today they labor under a more general requirement that, if they are able-bodied, they must work. Reading the word 'punishment' in the Thirteenth Amendment in a manner consistent with the way that same word is used in the Eighth Amendment, and is understood in the rest of the Constitution, reveals that only those inmates who are forced to work because they have been so sentenced - which is not the vast majority of inmates compelled to work in the present day - should be exempted from the general ban on involuntary servitude. In addition to examining the jurisprudence of the Eighth and Fifth Amendments as it relates to this question, this article also details the history of forced labor programs as punishment, and how courts’ reading of the punishment exception is not supported by either the circumstances surrounding ratification of the Thirteenth Amendment, or the ways that courts have construed it as a whole since that time.

This article argues that the reason courts have broadened of the meaning of 'punishment' in the Thirteenth Amendment, while simultaneously narrowing it in the Eighth Amendment, is because these directly contradictory acts of constitutional interpretation both serve the same end of judicial deference to the actions of prison officials, which has resulted in the general abdication by courts of their constitutional obligations to oversee those officials’ actions. This article also theorizes about the potential outcomes of interpreting the Thirteenth Amendment properly with respect to prison labor, and suggests that the resulting recognition of the punitive purposes that have always driven our prison labor programs may actually lead to an improvement in the overall well-being of prisoners, and perhaps of society as a whole.

September 12, 2009 in Prisons and prisoners | Permalink | Comments (2) | TrackBack

September 11, 2009

Split Sixth Circuit affirms one-day prison sentence for downloading child porn

Providing another example of the disputes and disparities engendered by sentencing in federal child porn possession cases, a split panel of the Sixth Circuit today affirms as reasonable a one-day prison sentence in US v. Stall, No. 08-4064 (6th Cir. Sept. 11, 2009) (available here).  Here is the start of the majority opinion authored by Judge Boggs:

Adam Stall pleaded guilty to two counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4). After observing that Stall had no criminal history and properly determining that the Sentencing Guidelines advised a range of 57-71 months of imprisonment, the district court sentenced Stall to only one day of incarceration and a ten-year period of supervised release.1 In this appeal, the United States contends this “non-custodial” sentence was procedurally and substantively unreasonable. Because the government at sentencing put forward almost no evidence for why a sentence within the Guidelines was warranted and did not raise the same cogent arguments it presents only on appeal, we affirm, holding that the district court’s explanation for the extent of its downward variance was sufficient in light of the record made before it.

Here is the entire dissent authored by Judge Rogers:

The one-day sentence in this case does not, with reasonable sufficiency, avoid disparity in sentencing or provide for general deterrence. I would therefore vacate the sentence as substantively unreasonable, and remand.

September 11, 2009 in Booker in the Circuits | Permalink | Comments (13) | TrackBack

Massachusetts update on the challenges of the prison economy

This Boston Globe article, headlined "Prisons facing $100m in cuts: Fiscal scenario may prompt closings, layoffs," provides a Bay State perspective on the difficulties posed by the modern prison economy.  Here are excerpts:

Under increasing financial pressure, the state’s prison system is weighing close to $100 million in budget cuts that could force widescale layoffs and the closure of several facilites at a time of growing fears over inmate overcrowding.

Harold W. Clarke, commissioner of the Department of Correction, outlined the bleak fiscal scenario, and its potentially drastic consequences, at a monthly meeting yesterday between top prison managers and union leaders, according to Steve Kenneway, president of the Massachusetts Correction Officers Federated Union. Clarke told union officials the state is considering closing as many as four prisons and laying off 300 employees, Kenneway said....

The Patrick administration expects to make preliminary decisions on closings and layoffs next month, he said. The prospect of multiple prison closings alarmed critics who say the system is already dangerously overburdened. "You have prisoners locked in a cell together for 19 hours a day, with a resultant increase in violence," said Leslie Walker, executive director of Massachusetts Correctional Legal Services, which provides legal services to inmates. "It’s a mistake that could prove tragic."...

The state’s 17 prisons are well over capacity, with their population more than tripling over the past two decades to over 11,000. In July, a riot at the Middlesex Jail, a county facility in Cambridge at more than double its capacity, shone a harsh light on the problem, and has intensified lobbying for relaxed minimum sentences, accelerated parole reviews, and more liberal use of home confinements....

In the face of a worsening financial crisis, the prison system also plans to cancel in-service training for correction officers and shelve training for 150 recruits this fall. In November, it will also close a Bridgewater substance abuse center that treats more than 1,500 men each year who have been civilly committed by the courts. The men will be transferred to facilities run by the Department of Public Health, said Diane Wiffin, a spokeswoman for the Department of Correction.

September 11, 2009 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Looking at collateral consequences from "race and dignity" perspective

I just noticed on SSRN this new piece, titled "Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity," by Michael Pinard. Here is the abstract:

This article explores the racial dimensions of the various collateral consequences that attach to criminal convictions in the United States. The consequences include ineligibility for public and government-assisted housing, public benefits and various forms of employment, as well as civic exclusions such as ineligibility for jury service and felon disenfranchisement. To test its hypothesis that these penalties, both historically and contemporarily, are rooted in race, the article looks to England and Wales, Canada and South Africa. These countries have criminal justice systems similar to the United States’, have been influenced significantly by United States’ criminal justice practices in recent years, have turned to increasingly punitive punishment schemes and have histories of disproportionately incarcerating people of color. This article is the first that offers a detailed comparative examination of collateral consequences. The examination finds that the consequences in the United States are harsher and more pervasive than those in these other countries. It also shows that Canada and South Africa have articulated broad dignity protections for incarcerated and formerly incarcerated individuals that are influenced by human rights notions of rights and privileges. Canada, in particular, has employed mechanisms to ease racial disparities in incarceration. Drawing lessons from these countries, the article offers steps to ease the legal burdens placed on individuals with criminal records in the United States, as well as to lessen the disproportionate impact these post-sentence consequences have on individuals and communities of color.

September 11, 2009 in Reentry and community supervision | Permalink | Comments (2) | TrackBack

"U.S. Sentencing Commission Urged to Give Judges More Flexibility"

The title of this post is the headline of this new article in the Washington Post discussing testimony at this week's US Sentencing Commission's regional hearing in Chicago.  Here is how the article starts:

Advocates for added flexibility in criminal sentencing took their appeal to the U.S. Sentencing Commission, which heard testimony here Wednesday and Thursday as part of the agency's first nationwide series of public hearings since federal sentencing guidelines took effect 22 years ago.

Criminal justice reform proponents have long pushed the federal government to back alternatives to incarceration and more flexible sentencing for drug, child pornography and other convictions. While past critics of federal guidelines criticized them for removing judges' discretion, others in law enforcement and advocacy want to use the guidelines to promote alternative sentencing. They said they think the commission is increasingly receptive to that idea.

Kentucky Justice and Public Safety Cabinet Secretary J. Michael Brown, who called the commission "the NASA of sentencing stuff," lamented states passing strict laws targeting "the drug du jour" only to end up "with prison systems bursting at the seams with people who aren't the most dangerous to society."

David Kennedy, director of the Center for Crime Prevention and Control at John Jay College of Criminal Justice, urged the commission to promote new strategies for dealing with gangs, including an approach wherein judges and prosecutors are more lenient if gangs cease their activities, but "bank" charges for later punishment if crime continues. Kennedy sees his invitation to testify as part of a new direction for the commission.  "The Sentencing Commission appears to me to be thinking about its role more broadly and is interested in different points of view," he said.  Kennedy said judges are "enormously influenced" by the guidelines, even though they are not mandates.

September 11, 2009 in Federal Sentencing Guidelines | Permalink | Comments (6) | TrackBack

September 10, 2009

A proposal from California to create a registry for arsonists

As detailed in this Los Angeles Times article, "Los Angeles County's largest fire in modern history led a pair of California lawmakers Wednesday to step up efforts to win congressional approval of legislation that would set up a national system for tracking convicted arsonists."  Here are more of the particulars:

"We as Californians understand the incalculable damage that can be caused by wildfire, which makes it all the more essential that we do everything possible to prevent unnecessary and senseless disaster at the hand of an arsonist," said Rep. Mary Bono Mack (R-Palm Springs).

She was joined by Rep. Adam Schiff (D-Burbank) in urging congressional leaders to allow a vote as soon as possible on their bill, the Managing Arson Through Criminal History, or MATCH, Act....

The arson legislation would require convicted arsonists -- many of whom are repeat offenders -- to report to authorities where they live, work and attend school. An arsonist would be required to register for five years for one offense, 10 years for two and for life for three or more offenses. The measure easily cleared the House in the last Congress, but never came to a vote in the Senate.

September 10, 2009 in Criminal Sentences Alternatives | Permalink | Comments (6) | TrackBack

"Debacle: How the Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended"

The title of this post is the title of this new article on SSRN from Professor Frank Bowman. I consider everything Frank writes to be a must-read, but this 100-page magnum opus seems especially worthy of attention.  Here is the abstract:

This Article argues that the line of Supreme Court Sixth Amendment jury right cases that began with McMillan v. Pennsylvania in 1986, crescendoed in Blakely v. Washington and United States v. Booker in 2004-2005, and continued in 2009 in cases such as Oregon v. Ice, has been a colossal judicial failure.  First, the Court has failed to provide a logically coherent, constitutionally based answer to the fundamental question of what limits the Constitution places on the roles played by the institutional actors in the criminal justice system.  It failed to recognize that defining, adjudicating and punishing crimes implicates both the Sixth Amendment jury clause and the Fifth and Fourteenth Amendment due process clauses, and it has twisted the jury clause into an insoluble logical knot.  Second, the practical effect of the Court’s constitutional bungling has been to paralyze the generally beneficial structured sentencing movement, with the result that promising avenues toward improved substantive and procedural sentencing justice have been blocked.  Even the most widely-applauded consequence of the Apprendi-Booker line, the transformation of the federal guidelines into an advisory system, proves on close inspection to be a decidely mixed blessing . The Court has made the Constitution not a guide, but an obstacle, to a desirable distribution of authority among the criminal justice system’s institutional actors. The Article provides a comprehensive constitutional analysis of all the opinions in the McMillan-Apprendi-Blakely-Booker-Ice line, as well as an assessment of the practical impact of these cases on both federal and state sentencing systems.  In addition, the article uses its careful dissection of the defects in the Court’s Sixth Amendment sentencing decisions to develop an alternative constitutional analysis that combines Sixth Amendment and due process principles. Finally, the article suggests that the elevation of Judge Sonia Sotomayor to the Supreme Court may provide the occasion for the Court to rethink its sentencing cases and move toward a more intellectually coherent and practically desirable constitutional sentencing jurisprudence.

September 10, 2009 in Blakely Commentary and News, Recommended reading | Permalink | Comments (19) | TrackBack

FAMM survey on views about sentencing reform

I received this inquiry from Families Against Mandatory Minimums via e-mail today, and was informed that FAMM would like to hear from as many persons as possible:

Why do you care about FAMM and sentencing justice?  Take FAMM's survey and let us know!  It only takes a minute, it's only five questions, and it's completely anonymous!  This is your chance to help FAMM learn more about our members and why you care about sentencing reform. Click the link below, or check FAMM's website or Facebook page to complete our survey. We'll post the results on our website at the end of September.

Please take a moment to do this FAMM survey.  It is really short and easy, and I hope both fans and foes of modern sentencing systems will weigh in.

September 10, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (4) | TrackBack

Ninth Circuit panel finds retroactive part of SORNA unconstitutional

The Ninth Circuit, in an lengthy panel opinion authored by Judge Reinhardt, today declares in US v. Juvenile Male, No. 07-30290 (9th Cir. Sept. 10, 2009) (available here) that part of the federal Sex Offender Registration and Notification Act is unconstitutional as applied to former juvenile offenders. Here is a key paragraph from the start of the unanimous panel opinion:

We must decide as a matter of first impression — in our court and in any other circuit court — whether the retroactive application of SORNA’s provision covering individuals who were adjudicated juvenile delinquents because of the commission of certain sex offenses before SORNA’s passage violates the Ex Post Facto Clause of the United States Constitution.  In light of the pervasive and severe new and additional disadvantages that result from the mandatory registration of former juvenile offenders and from the requirement that such former offenders report in person to law enforcement authorities every 90 days for 25 years, and in light of the confidentiality that has historically attached to juvenile proceedings, we conclude that the retroactive application of SORNA’s provisions to former juvenile offenders is punitive and, therefore, unconstitutional.

For a host of reasons, this ruling seems likely to get considerable attention and scrutiny from federal officials in other branches as well as perhaps from the full Ninth Circuit and/or the Supreme Court.  And I hope to have time to comment on the ruling in some detail once I get a chance to read it closely tonight.

September 10, 2009 in Sex Offender Sentencing | Permalink | Comments (13) | TrackBack

When and how will DOJ Sentencing and Corrections Working Group report on its conclusions?

As noted in this prior post, the US Sentencing Commission hears a second day of testimony as part of its Chicago regional public hearings, and this official agenda shows that this morning started with testimony from two US Attorneys.  And, at the very start of their submitted written testimony, both US Attorney's referenced the on-going review of sentencing and corrections taking place within DOJ.  Here is a snippet from the outset of the written testimony of US Attorney Patrick Fitzgerald:

[W]hile the Commission continues its critical work studying and seeking to improve the sentencing guidelines, the Department of Justice is undertaking its own fairly comprehensive review of federal sentencing policy. (Indeed, I know the Commission has been an invaluable resource for data and analysis to assist the Department’s effort and for that, we are grateful.) As a result of the ongoing DOJ efforts, I will note up front that I am not in a position to suggest particular changes to the federal sentencing guidelines while I am currently participating – with many, many others in the Department of Justice – in the Sentencing and Corrections Working Group studying the matter and preparing a report to the Deputy Attorney General and, through him, the Attorney General.

Based on various comments from various DOJ officials, the Sentencing and Corrections Working Group has been hard at work for many months.  And I had gotten the impression that this Group would be making some sort of public report on its findings and conclusions sometime in early fall.  But these comments from USA Fitzgerald lead me to be concerned (1) that it may be many more months before the Group even finishes it work, and (2) that its findings may not be made public unless and only after the Deputy AG and the AG embrace and endorse the Group's conclusions.

For a variety of reasons, I cannot fault DOJ for playing "close to the vest" during its self-study.  But with nearly 2,000 federal defendants sentenced each and every week, time is always of the essence for the reform of the federal criminal justice system.  And, as evidenced by last week's notable district court decision to postpone a case in light of recent comments from senior Justice Deparment officials (details here), lots of folks are expecting and hoping that the Sentencing and Corrections Working Group will be bringing hope and change to the federal sentencing system ASAP.

September 10, 2009 in Who Sentences | Permalink | Comments (0) | TrackBack

New Amnesty International report on the death penalty in Japan

As detailed in this new CNN piece, Amnesty International has issued a new report urging Japan's government "to establish a moratorium on executions and consider abolishing the death penalty." Here are more of the details from CNN:

Death row inmates in Japan spend decades in isolation and face inhuman conditions that can lead to mental illness, Amnesty International said Thursday.  Amnesty urged Japan's new government to improve death row conditions....

As many as 102 prisoners face execution in Japan -- many of them elderly inmates who have lived in isolation for decades, the human rights group said.  However, the number of death row prisoners suffering from mental illness is unknown.

"The secrecy around the death penalty and prisoners' health, combined with a lack of scrutiny by independent mental health experts, has led to reliance on secondary testimony and documentation to assess the mental state of those on death row," Amnesty said.

The report by the London-based human rights group comes as a new Japanese administration prepares to take over after ousting the long-ruling government in a landslide victory last month. Amnesty urged the new Democratic Party of Japan government, which will form in mid-September, to improve death row conditions.

September 10, 2009 in Sentencing around the world | Permalink | Comments (3) | TrackBack

Crooked state juve judges indicted now on federal racketeering charges

This new piece from the Legal Intelligencer, which is headlined "Pa. Judges in Corruption Scandal Indicted for Racketeering," provides the latest news on the remarkable case involving two allegedly crooked state juve judges:

A federal grand jury has handed down a 48-count indictment against two former Luzerne County, Pa., judges, alleging the men engaged in racketeering and related charges, the U.S. Attorney's Office for the Middle District of Pennsylvania announced Wednesday.

The indictment, a copy of which was not available at press time Wednesday, comes about 5 1/2 weeks after a federal judge rejected the conditional plea agreements of Michael T. Conahan and Mark A. Ciavarella Jr. and nearly two weeks after the men withdrew their conditional guilty pleas in the matter.

The indictment charges Conahan and Ciavarella with fraud, money laundering, extortion, bribery and federal tax violations while alleging they received "millions of dollars in illegal payments," according to Dennis C. Pfannenschmidt, U.S. Attorney for the Middle District of Pennsylvania. Each charge is related to the judges' ties to two juvenile detention facilities: PA Child Care and Western PA Child Care.

The indictment also seeks forfeiture of more than $2.8 million -- an amount the government alleges were proceeds from the judges' criminal activity. That amount is slightly higher than the $2.6 million the judges originally admitted to accepting in their conditional plea agreements....

The indictment is the latest twist in a story that has seen several since late summer. Conahan and Ciavarella made a joint filing Aug. 20, petitioning U.S. District Judge Edwin M. Kosik to reinstate their agreed-upon sentence of 87 months in prison because neither could be found at fault for his post-plea hearing actions. Kosik rejected that Aug. 24. That same day, the former judges withdrew their guilty pleas and formally entered pleas of not guilty to the charges.

Kosik threw out the plea agreements July 31, citing, in part, Conahan and Ciavarella's conduct following the announcement they had agreed to plead guilty to federal fraud charges and their refusal to accept responsibility for the crimes they had committed. Ciavarella's public comments were self-serving, he said, and Conahan was being obstructionist....

While the government's press release made no mention of any charges beyond those related to the juvenile detention center, several sources said they expected the government to come back at some point with a superseding indictment seeking additional charges against Conahan and Ciavarella.

While the federal government's case against the former judges centers on their roles in taking money from attorney Robert Powell, the owner, and Robert Mericle, the builder, of a juvenile detention facility and the judges' alleged abuse of the rights of juveniles sentenced to the facility, sources close to the investigation and inside Luzerne County say the scam some in the media have labeled "kids for cash" was just the tip of the iceberg and only the most blatant example of the corruption allegedly overseen by the two judges.

September 10, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Judges complaining to USSC about federal sentencing guidelines for child porn possession

This new article from the National Law Journal, which is headlined "Sentences for Possession of Child Porn May Be Too High, Judges Say," reports on some testimony from the latest US Sentencing Commission regional hearing. Here are highlights:

Judges testifying before the U.S. Sentencing Commission in Chicago told the panel that sentences for people convicted of possessing child pornography have become too severe. The commission suggested it will review the relevant guidelines.

Chief Judge James Carr of the Northern District of Ohio and Chief Judge Gerald Rosen of the Eastern District of Michigan told the panel on Wednesday that sentencing for possession of child pornography, as opposed to manufacture or commercial distribution, may need to be changed. Many people convicted on the offense are not threats to the community, but rather socially awkward first-time offenders, they said. "This is an area that requires the commission's close consideration and possible corrective action," Rosen told the panel, adding, "I know it's an awkward area for all of us."

In response, Commissioner Beryl Howell said that the issue "is on our priority list for the coming year." The commission will study what kinds of refinements might be made after reviewing the departures from the sentencing guidelines that judges have made in these cases, she said. Howell also noted that Congress has weighed in heavily in this area over the years....

"I'm of the view that in many instances the sentences are simply too long," Carr said, referring specifically to the guidelines for child pornography possession, gun possession and drug possession....

7th Circuit Chief Judge Frank Easterbrook, who testified with a separate group of appellate judges, agreed that the child pornography possession area might be ripe for review. He said it gives him pause when he sifts through a stack of sentences that includes a bank robber getting a 10-month sentence and a person convicted of downloading child pornography receiving a 480-month sentence. "One wonders if we aren't facing some unreasonable and unjustifiable disparities," Easterbrook told the panel.

U.S. Attorney Patrick Fitzgerald, who oversees the Northern District of Illinois, will testify tomorrow that there "seems to be a striking dissonance" between judges and prosecutors in sentencing for child pornography and exploitation cases, according to his prepared remarks. "Without taking an advocate's view on why it is so, it is plain as day there is a deep disconnect," he said in the remarks, which were distributed early by the sentencing panel. "I respectfully suggest that this is an area of sentencing that warrants further study and further education of all involved."

The Booker decision has "aggravated the situation concerning child pornography," Fitzgerald said in his prepared remarks.  While mandatory minimum sentences in that area "are certainly strict," prosecutors may be reluctant to seek lower sentences when they expect, based on past experience, that judges will reduce whatever sentences they recommend, he said.

September 10, 2009 in Federal Sentencing Guidelines | Permalink | Comments (4) | TrackBack

September 9, 2009

A reported promotion for the judge who gave Madoff the max

The New York Times is reporting in this article, headlined "Madoff’s Sentencing Judge To Be Appellate Court Choice," that the federal district judge who maxed out Bernie Madoff is soon to be nominated to the Second Circuit.  Here are the basics:

Denny Chin, a federal district judge in Manhattan who has been involved in a number of prominent decisions, including the sentencing of Bernard L. Madoff to 150 years in prison for his huge Ponzi scheme, is expected to be nominated by the White House for a prestigious appellate judgeship in New York, according to the office of Senator Charles E. Schumer.  Mr. Schumer’s office said that the nomination is expected in the coming months, in time to be confirmed by the Senate before it recesses later in the year.

If nominated, and confirmed by the Senate, Judge Chin would join the United States Court of Appeals for the Second Circuit, known widely for its rulings in financial and white-collar cases, among others.  It is also the court where Justice Sonia Sotomayor served before she was named to the Supreme Court.

Judge Chin, 55, would become the sole Asian-American to fill an active judgeship on a United States Circuit Court of Appeals.  (Judge A. Wallace Tashima of the Ninth Circuit has taken senior status, a sort of semi-retirement.)

Senator Schumer, who was consulted on the matter, said, “We told the White House that Judge Chin would be an outstanding choice.”  “Even in the most high-profile of cases, he has been unflappable, erudite and steadily applied the law,” said the senator, who sits on the Judiciary Committee.

September 9, 2009 in Who Sentences | Permalink | Comments (5) | TrackBack

Shaming t-shirts ordered as part of community service sentence

Thief t-shirtGiven that shaming sentences would seem to have special appeal during lean economic times when the costs of traditional punishment are of great concern, I am somewhat surprised that there has not been more discussion and debate of these kinds of innovative sentences lately.  But, as highlighted by this recent article from the Toledo Blade, which is headlined "Fashion police: Judge tailors punishment that fits criminals to a T," the use of shaming sentences remains alive and well at the local level.  Here are excerpts from this story:

I did the crime, I did the time, and all I got was this lousy T-shirt. Such a reaction could crop up in Fulton County, where a no-nonsense judge is requiring some criminals to wear customized clothing in public: neon green shirts with large, black letters announcing, "I'm a thief."

To curb crime and provide a form of public punishment, Western District Court Judge Jeff Robinson recently introduced the "criminali-tees," and so far several convicted shoplifters, while performing community service, have worn the garish, attention-grabbing garments.

The shirts aren't designed to be a fashion statement, but rather a statement of fact, a wash-and-wear way to help weave criminals back into the social fabric. Public punishment, the judge said, serves as a deterrent, particularly at a time when more people are being tempted to steal from others.

When the economy started to tank, the judge noticed "what appeared to be a huge uptake in the number of shoplifting cases occurring in the community."  During one proceeding, he asked a thief how she expected to get away with stealing stuff from a busy retail store, and she seemed rather proud to know security cameras can't spot shoplifters in a particular area, he said.

After that, he decided shoplifters needed to "suffer a little bit of humility." And, he said, a message needed to be sent to others that being a thief isn't something they want to get involved in. The shirts, the judge said, are not worn with a sense of pride, and the message appears to be having its desired effect. "Shoplifting cases are down," he said, but he added that the shirts alone aren't the reason. Enforcement efforts have stepped up....

Mr. Robinson, a judge since 2005, admits customized clothing for criminals isn't a new idea. A judge in Defiance County, who is now retired, "had a whole parcel of shirts for juveniles" to wear, he said....

Mark Powers, a lawyer in Fulton County who represents clients who come before Judge Robinson, said he's aware of the shirts, but hasn't seen anyone wearing one in public. So far, none of his clients has been ordered to wear them, but "I am sure that will happen," he said. And when it does, he'll be OK with it, even if his clients aren't.

"Quite frankly, the idea is to get people to not do this and if that is an effective way to not do that, it serves its purpose," Mr. Powers said. It's sort of like the old days of pillory, Mr. Powers said, when people were punished by public humiliation, with heads and hands secured in a metal or wooden framework device. "If it keeps them from doing it again, it wasn't the worst thing to try to do."

September 9, 2009 in Criminal Sentences Alternatives | Permalink | Comments (8) | TrackBack

"Sex Offender Registries: Fear Without Function?"

The title of this post is the title of this research paper I just noticed on SSRN authored by Amanda Agan of the University of Chicago Department of Economics. The paper seems especially timely in light of the on-going discussion of how Phillip Garrido's placement on a sex offender registry did not seem to impact his ability to get away with a notorious sex offense.  Here is the abstract from the this paper:

I use three separate datasets and designs to determine whether sex offender registries are effective. First, state-level panel data is used to determine whether sex offender registries or public access to them decreases the rate of rape and other sexual abuse. Second, a dataset which contains information on the subsequent arrests of sex offenders released from prison in 1994 in 15 states is used to determine if registries reduce the recidivism rate of offenders required to register compared with those who do not. Finally, I combine data on locations of crimes in Washington, D.C. with data on locations of registered sex offenders to determine whether knowing the location of sex offenders in a region help predict the locations of sexual abuse. The results from all three datasets do not support the hypothesis that sex offender registries are effective tools for increasing public safety.

Some recent related posts:

September 9, 2009 in Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Astute views from the district court about post-Booker sentencing realities

As noted in this prior post, today the US Sentencing Commission started yet another one of its regional public hearings.  This fourth regional public hearing is taking place in Chicago, and this official agenda details the a fascinating group of invited witnesses scheduled to testify.  And now some of the submitted written testimony is linked via the agenda. 

Though I would recommend that everyone read all of the linked submitted testimony now available this official agenda, I want to put in a special plug for the submissions from the district judges.  In various way, all the realities of sentencing "cash out" in front of sentencing judges, and thus the insights and concerns expressed by federal district judges seem especially important.  And, based on my quick scan, the insights and concerns expressed by these district judges testifying this morning in Chicago seem especially astute and worthy of this blog shout out:

September 9, 2009 in Booker in district courts | Permalink | Comments (0) | TrackBack

Another noteworthy below-guideline federal child porn sentence

This local article, headlined "Asperger's lightens prison sentence for man in child porn case," reports on another notable federal child porn sentence. Here are the basics:

A Bettendorf man with Asperger's Syndrome who graduated from college with three majors and volunteered at his church now faces more than seven years behind bars on a federal child pornography conviction.

Jeremy Gatton, 35, was sentenced Tuesday in U.S. District Court, Davenport, by Judge John Jarvey. In a rare move, the defense and prosecution both asked Jarvey to consider a sentence less than what was recommended by the federal sentencing guidelines: 17 1/2 to 20 years. Jarvey agreed.

The material found on Gatton's computer, Jarvey said, was "terrible" and the "behavior for which he got caught is particularly disturbing." However, Jarvey noted that Gatton's disorder, often associated with an intense focus on a subject, "might very well explain the number of images" involved in the case, which significantly raised the potential range of punishment. It also is "very rare" to see a defendant in federal court with a loving family and strong support system, Jarvey said. Gatton has no criminal record.

After serving his 90-month sentence, Gatton will be on supervision for 10 years. Gatton came to authorities' attention after he posted a question at a Web site called misterpoll.com. Posting as "dadof3unrulygirls," he asked how he should sexually discipline his 8-, 10- and 12-year-old girls, officials said.

Gatton has no children, but a computer found in his bedroom contained several images of child pornography, a number of which were of victims identified by the National Center for Missing and Exploited Children.

He told officials that he searched for the images, some of children as young as 4 years old, authorities said. He used the peer-to-peer file sharing software Morphius. "I like to find things and I stumbled on it quite by accident," Gatton said after the judge asked him how it started. He also expressed deep regret and a desire to act with integrity and virtue in the future.

Some related federal child porn prosecution and sentencing posts:

September 9, 2009 in Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

September 8, 2009

Another notable uptick in below-guideline sentences in latest data run from USSC

The US Sentencing Commission has some notable new sentencing data now up on its website. The USSC's latest data report, which can be accessed here, is described this way:

Third Quarter FY09 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced through the third quarter of fiscal year 2009.  The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published September 8, 2009)

The new data shows the continuation of a trend of an increase in below-guideline sentence (which I first noted in this post and which I tentatively predicted in this post right after President Obama's election).  This data run shows another (still small but seemingly significant) uptick in below-guideline sentences imposed by judges.  Specifically, in the three quarters just before President Obama's election, judges decided on their own to impose a below-guideline sentence in roughly 13.8% of all cases.  In the three quarters since then, judges decided on their own to impose a below-guideline sentence in roughly 15.8% of all cases. 

Of course, it remains the case that most below-guideline sentences still result from prosecutors requesting a below-range sentence (this happens in more than 25% of all cases).  And, as has always been the reality in the federal sentencing system both before and since Booker, one can identify a number of large inter-circuit and inter-district variations in how many sentences fall within or outside calculated guideline ranges.

The latest data might be spun in lots of different ways, and it will be especially interesting to see how the on-going internal study group inside the Justice Department characterizes and responds to these trends.

September 8, 2009 in Detailed sentencing data | Permalink | Comments (1) | TrackBack

"A Move to Register Sex Offenders Globally"

The title of this post is the headline of this new piece in Time.   Here is how it gets started:

While the world's attention was focused on Phillip Garrido, who is accused of abducting 11-year-old Jaycee Lee Dugard in 1991 and holding her hostage for 18 years as a sex slave, three other alleged sexual predators were quietly brought back to the United States to face prosecution for abusing countless children in Cambodia.  The horrifying ordeal of Garrido's victim is now well documented; however, the stories of an estimated 1.8 million other children worldwide who are forced into the multi-billion dollar commercial sex trade every year remain largely unheard.

One of the men arrested in Cambodia, Jack Sporich, 75, spent nine years in a California prison for molesting as many as 500 boys during camping trips.  Although Sporich was placed on a public registry and barred from living or working within 1,000 feet of a school or a child-care center anywhere in the U.S., Cambodian authorities were not notified when Sporich relocated to Phnom Penh in 2006.  Sporich was arrested after an investigation by a local agency — Action Pour Les Enfants-Cambodia — alleged that he had lured three Cambodian boys aged 9 to 12 to his home with toys and candies.  Court documents state that Sporich also enticed them by dropping Cambodian currency in the street as he rode along on a motorbike.

The case has reinvigorated support for H.R. 1623, the "International Megan's law," which Rep. Chris Smith, a New Jersey Republican, introduced in March 2009.  If passed, the bill would alert officials abroad when U.S. sex offenders intend to travel, and likewise encourage other countries to keep sex offender lists and to notify the U.S. about offenders' travel plans to the United States.  U.S. law can grab American predators overseas. Sporich, along with Ronald Boyajian, 49, and Erik Peeters, 41, were charged under the PROTECT Act, which was enacted six years ago to strengthen federal laws related to predatory crimes committed outside the U.S. (A federal magistrate ordered the three held in custody until their arraignment on Sept. 21.  Each could face up to 30 years in prison per victim if convicted.)

But human rights organizations say their alleged crimes never should have occurred because all three men were previously convicted of sex offenses in the U.S. and listed in the domestic sex offender registry.  "Sex offenders still think they can come to East Asia and commit new crimes with impunity," says Giorgio Berardi, Program Officer for Combating Child-Sex Tourism at ECPAT International, an organization working to eliminate child pornography, prostitution and trafficking.  "We need far better collaboration between countries to prevent sexual exploitation of children."

September 8, 2009 in Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

Updated supplement for Sentencing Law and Policy casebook now available

As a new school year gets underway, I am happy to be able to share an updated electronic supplement providing additional materials to accompany the second edition of the Sentencing Law and Policy casebook.  Anyone can download this 2009-2010 supplement below.

This updated supplement includes edited versions of KennedyKimbrough and Gall, as well as lots of notes covering various major sentencing developments from the past few years.  My co-authors and I hope that adopters of our text (and others) find this new, updated supplement useful, and we welcome comments and suggestions.

Download Sentencing SuppDBMW2009

September 8, 2009 in Recommended reading | Permalink | Comments (0) | TrackBack

"Judges Punish Wall Street as Regulators Just Talk About Reform"

The title of this post is the headline of this interesting Bloomberg piece that suggesting that federal sentencing judges are playing a central role in responding to the recent economic crash.  Here is how the piece gets started:

As the White House and Congress debate how to regulate financial firms to avoid another economic crisis, judges have assumed the point position in punishing Wall Street for causing the worst recession since the 1930s.

The executive and legislative branches have been discussing reforms such as more regulation of hedge funds and transparency for derivatives as a response to the financial crisis that began a year ago. As that battle with a reluctant Wall Street inches forward about how to prevent another disaster, judges are taking the first steps toward the same goal, punishing executives and issuing rulings with national impact....

“Judges have lifetime appointments and are freer to act on their conscience than regulators,” said Charles Elson, chair of the University of Delaware’s corporate-governance center. Judges can act more decisively than regulators or politicians because they’re “insulated from the political process,” he said.

Free from the pressures of lobbyists, judges typically refrain from showing emotion or expressing opinions during court proceedings to appear impartial. During sentencings in criminal cases, they sometimes let their hair down about their feelings about the damage Wall Street firms or their executives did.

September 8, 2009 in White-collar sentencing | Permalink | Comments (0) | TrackBack

China struggles with drunk driving sentencing

As one who is always concerned with the US approach to sentencing drunk driving, I was intrigued to see this AP story from China concerning that country's struggle with this crime and effective punishments.  Here are excerpts from the piece:

An appeals court in China overturned the death penalty Tuesday in a drunk driving case, sentencing the defendant instead to life imprisonment.  Sun Weiming, 30, was sentenced to death after being convicted for a fatal accident last December that killed four people and injured another in southwestern Chengdu.  It was reportedly the first time a death penalty had been given in a drunk driving case in China....

His original sentence was made amid a two-month nationwide crackdown against drink-driving launched in August following a series of fatal accidents involving pedestrians and drunk drivers.  Enforcement of laws against drunken driving has traditionally been lax and police easily bribed or otherwise persuaded to expunge convictions.

However, a recent spate of highly publicized drunken driving incidents has sparked outrage in the media and on the Internet.  The problem has tapped into disgust over China's yawning gap between the rich and poor after a young man driving his father's Porsche SUV killed a 16-year-old waitress earlier this month.

Drivers in Beijing can be cited as drunk if they have a blood alcohol level at or above 0.02, or 20 milligrams of alcohol per 100 milliliters of blood.  That is much lower than the U.S. limit of .08, making virtually any consumption of alcohol by drivers illegal.

September 8, 2009 in Sentencing around the world | Permalink | Comments (4) | TrackBack

September 7, 2009

When and how will SCOTUS respond to the California prison litigation?

As detailed in this San Jose Mercury News article, "California officials Friday asked the U.S. Supreme Court to block a lower court order that forces the state to quickly devise a plan to shed more than 40,000 inmates from its overcrowded prisons."  This filing came on the heels of the decision late last week by the special three-judge panel, noted here and available here, which refused to stay its order that California submit a prison reduction plan by September 18.  Here is more on California's SCOTUS filing:

In a 46-page petition to Supreme Court Justice Anthony Kennedy, who handles emergency appeals from the Western states, California Attorney General Jerry Brown asked for an immediate stay of a three-judge panel's Aug. 4 order requiring the state to submit its prisoner release plan within 45 days.

Judges on the federal court panel Thursday rejected the state's bid for a stay, saying they've been "more than patient with the state and its officials" in the years-long legal battle over conditions inside California's prison system.

But California officials say the court has put the state in an impossible spot by requiring it to come up with a plan to reduce the prison population by one-fourth by Sept. 18.  "Every day that the three-judge court's order hangs over California, it places enormous strains on the state's existing resources and creates intolerable anxiety for both officials and residents of the nation's most populous state," state lawyers wrote to Kennedy.

Meanwhile, according to this distinct article in the Sacremento Bee, the separate political fight going on "in the California Legislature over prison cuts is costing taxpayers millions per day as lawmakers debate changing tough-on-crime policies that have sent prison populations and costs soaring." As this article explains, the state's "fiscal crunch grows by $3.3 million per day because the state budget anticipated that a deal on how to cut $1.2 billion from prisons would be struck in July, not mired in politics for months."

In other words, everyone says for a variety of reasons that time is of the essence in these matters.  Thus, it would seem important for Justice Kennedy and/or the entire Supreme Court to move quickly to rule in some manner concerning this California prison litigation.  And yet SCOTUS is not an institution known for moving very fast on others' timelines.  Thus, I will be intrigued to see not only how, but when, SCOTUS responds to California's emergency filing.

UPDATE:  Over at SCOTUSblog here, Lyle Denniston discusses this case and provides this link to California's stay application.  The entire stay application makes for an interesting read, including the fact that Carter Phillips of Sidley Austin is listed as counsel of record for California.  Apparently, California can afford to hire a top-flight Supreme Court litigator despite its economic woes (and I cannot help but wonder if Phillips is giving the struggling state a dsicount or taking his fees in the IOUs the state was recently forced to utilize).

September 7, 2009 in Scope of Imprisonment | Permalink | Comments (6) | TrackBack

A remarkable concurrence in the affirmance of a long mandatory minimum sentence

Late Friday the First Circuit affirmed the application of a 20-year mandatory minimum sentence in a single-page per curiam opinion in US v. Cirilo-Munoz, No. 08-1830 (1st Cir. Sept. 4, 2009) (available here). The opinion in Cirilo-Muno is blog-worthy because of a remarkable five-page concurrence by Judge Torruella, which starts and ends this way:

This case, and its outcome, is a notorious example of oppressive injustice culminating in an outrageous adjudication.  It is a stain on the robes of American justice.  Appellant Cirilo-Muñoz was convicted of aiding and abetting the murder of an on-duty police officer.  He was convicted even though his co-defendant Lugo- Sánchez, the murderer himself, who initially tried to pin Cirilo-Muñoz for the murder and was the government's star witness, "testified unequivocally that Cirilo[-Muñoz] had no advance knowledge about his plan to murder . . . and did not assist him in committing the murder in any way." United States v. Mangual-Corchado, 139 F.3d 34, 50 (1st Cir. 1998) (McAuliffe, J., dissenting).   We are now called upon to affirm the imposition of a harsh mandatory minimum sentence, which only compounds the injustice caused by Cirilo-Muñoz's conviction.  Because I have taken an oath to uphold the law irrespective of my personal views, I am left without a principled choice in this appeal other than to concur, and, in the process, register my most vehement disagreement with the warped outcome of this case....

A series of coincidences have laid bare a system of law, which in Cirilo-Muñoz's particular circumstances has failed to protect him from the oppressive power of government and its bureaucracy.  The result is that a seventeen-year-old adolescent has been condemned to spending his entire adult life incarcerated in a federal prison.  To this wrongful outcome have contributed all three branches of government, with Congress making its contribution on this appeal through its draconian mandatory minimums.

Our prior decisions and the laws passed by Congress command this result, which I must obey. I write this opinion so that this injustice is not forgotten in our otherwise summary disposal of Cirilo-Muñoz's appeal.  His case calls out for clemency and relief, and should serve to remind us both of the flaws in our system of adjudicating guilt and the dangers of mandatory minimums.

I am not familiar with this case or the reasons why Judge Torruella sees the case as "a notorious example of oppressive injustice culminating in an outrageous adjudication."  But I am familiar with the reality that homicide defendants sentenced to something less than the death penalty often get overlooked by abolitionist activists eager to assail cases involving oppressive injustices.  I wonder if those activists might take up the defendant's cause as urged by Judge Torruella in this opinion.

September 7, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (12) | TrackBack

Confronting the gendered realities of extreme sex crimes

Most serious observers of the criminal justice system surely recognize how dramatically "gendered" much criminal offending tends to be — i.e., the vast majority of serious criminal offenders are men, and many female offenders get involved in crimes because of, or through, their relationship to men.  Nevertheless, these gendered realities are not often broadly discussed or debated.  But, as this new Sacremento Bee article highlights, the high-profile Garrido case is prompting new discussions of these matters.  The piece is headlined "Women's role in sex crimes resurfaces as issue," and here is how it starts:

Charlene Williams of Sacramento lured six teenage girls and four young adults to their deaths as her husband demanded the perfect "sex slave."

Michelle Lyn Michaud, also of Sacramento, customized curling irons to help her boyfriend torture and murder a 22-year-old student abducted from a Pleasanton street.

In Utah, Wanda Eileen Barzee was accused of helping her husband kidnap 14-year old Elizabeth Smart at knifepoint from her Salt Lake City bedroom so that he could secure another "wife."

Now along comes Nancy Garrido of the Bay Area. Like the others, Garrido is accused of teaming up with a male partner — in Garrido's case, her husband of nearly three decades — and allegedly committing unthinkable crimes against other women and children.

September 7, 2009 in Race, Class, and Gender, Sex Offender Sentencing | Permalink | Comments (14) | TrackBack

Notable criminology studies from international sources

Catching up with some of the SSRN pieces in my in-box, I discovered these two notable criminology pieces from researchers working outside the USA:

Crime, Economic Conditions, Social Interactions and Family Heritage

Abstract: This paper tests whether factors referring to socio-economic aspects, family heritage, social interaction, habits and customs explain differences among violent and non-violent prisoners.  Some of the results of the probit estimation show that economic issues are the main factors that stimulate the practice of non-violent crime.  On the other hand, violent crimes results suggest that factors related to family heritage reduce this kind of crime.  In relation to variables of social interaction, prisoners who were brought up in a good neighborhood have a lower probability of committing violent crimes.

Prison Conditions and Recidivism

Abstract: This paper examines the impact of prison conditions on future criminal behaviour. The analysis is based on a unique dataset on the post-release behaviour of 25,000 Italian former prison inmates.  We use an exogenous variation in prison assignment as a means of identifying the effects of prison overcrowding, deaths in prison, and degree of isolation on the probability of re-offending. We find do not find compelling evidence of deterrent effects of prison severity.  The measures of prison severity do not affect negatively the probability of recidivism. Instead, all point estimates suggest that harsh prison conditions increase post-release criminal activity, though they are not always precisely estimated.

September 7, 2009 in Recommended reading | Permalink | Comments (1) | TrackBack

Reflecting on community intuitions about justice and punishment

As spotlighted in this paper and in lots of other thoughtful work, Paul Robinson has pioneered and championed a concept he calls "empirical desert" that is focused on having community intuitions of justice as the backbone of a criminal justice system.  As I have recently figured out, I think the label  "empirical desert" is a less-than-ideal way to describe Robinson's very valuable insight that shared intuitions of justice ought to play a more central role in the design of punishment systems.

Valuably, lots of thoughtful folks are starting to assess and debate Robinson's concept of "empirical desert," as evidenced by this new paper on SSRN, titled "How to Improve Empirical Desert," by Adam Kolber.  Here is the abstract:

According to advocates of "empirical desert," laypeople intuitively support a retributive approach to punishment, and policymakers can increase compliance with criminal justice policies by punishing in accord with lay intuitions.

I offer three criticisms of empirical desert intended ultimately to strengthen its theoretical underpinnings: First, advocates have cherry-picked certain moral intuitions, while ignoring others. They focus on the calm, unbiased intuitions of people who are generally law-abiding, even though the people whose compliance we most hope to gain — those who are on the fence about offending — are likely to act under biased, heat-of-the-moment circumstances.  Second, advocates cannot operationalize empirical desert because they have yet to demonstrate the value of the compliance induced by empirical desert relative to the value of other consequentialist goals.  Third, empirical desert arguably exploits laypeople by using their “mistaken” retributive beliefs about punishment to encourage their compliance with consequentialist goals.  Such exploitation may especially trouble defenders of the “publicity principle,” which requires that a system of morality be based on principles that can be announced publicly without thereby undermining those same principles.

I do not describe precisely how empirical desert advocates should respond to these concerns, but they can make substantial headway by more carefully distinguishing the use of widely-shared moral intuitions to make predictions about people’s behavior from the use of those intuitions to justify particular policies.

September 7, 2009 in Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack

September 6, 2009

Seeking deep throughts in reaction to "The Recession Behind Bars"

Today's New York Times includes this fascinating op-ed, headlined "The Recession Behind Bars," which is authored Kenneth Hartman, who is nearing the end of his third decade in prison following a 1980 conviction for murder that led to an LWOP sentence in California. Here are excerpts from this must-read piece:

The past 25 years were generally prosperous for California; the economy boomed and fortunes were made in the sunny San Fernando Valley.  But during this time, the lives of prisoners became much drearier.  We were forced into demeaning uniforms, with neon orange letters spelling out “prisoner,” and lost most of the positive programs like conjugal visits and college education that we had had since the ’70s.  Money was flowing outside the prison walls, but new “get tough” policies against criminals were causing our population, and our costs, to soar.

It is a quirk of California politics that it is among the bluest of states but has some of the reddest of laws.  No politician here ever lost an election for being too tough on crime or prisoners. Consequently, all through the ’80s and ’90s billions of dollars were poured into a historic prison-building boom.  Private airplane pilots tell me it’s easy to navigate at night from San Diego to Los Angeles and on up the Central Valley to Sacramento by simply following the prisons’ glowing lights. Good times in the free world meant, in here, ever-longer sentences, meaner regulations and ever-decreasing interest in rehabilitation.  “Costs be damned; lock ’em up and be done with it” became the unofficial motto of the Department of Corrections.

The last time I received a visit from my family, in early July, the air-conditioning in the visiting room had been broken for more than a month.  This matters because my prison is in the high desert north of Los Angeles....  The next day I asked one of the administrators what could be done to get the air-conditioning fixed, and he told me an amazing story. The free-world contractor who services the prison’s air-conditioning systems had refused to come out to replace the part that was broken, because the state owed the company tens of thousands of dollars in back fees and could pay only in i.o.u.’s.  There would be no cool air until the state’s budget negotiations were concluded.

Now that the economy is suffering, there is talk of reforming the prisons, of reviving the discredited concept of rehabilitation, of letting some prisoners out early.  Some people have even mentioned doing away with the death penalty because of the exorbitant cost to the state of guaranteed appeals.  For those of us who have endured a generation of policies intended explicitly to inflict pain, this has a surreal quality to it. After all, it was only a year ago that the state authorities were planning the next phase of prison expansion.  Obviously, all the passionate arguments that have been made about the moral wrongs of mass incarceration, of disproportionately affected communities, of abysmal treatment and civil rights violations were just so much hot air.  Only when society ran out of ready cash did prison reform become worthy of serious consideration. What this says about the free world is unclear to me, but it doesn’t feel like a good thing.

The talk in here contains an element of schadenfreude.  When the TV shows legislators complaining about how deep in the hole the state budget is, laughter fills the day room. Our captor turns out to be simply inept....

From my cell I can also observe the inner roadway on which prison vehicles pass.  A fleet of new, shining-white super-security transportation vans still drives by daily.  Leviathan hasn’t quite adjusted to the Golden State’s diminished firmament.

This snippet and the rest of the op-ed is perhaps more about modern sociology than modern economics or criminology.  But, whatever label readers might attach to the piece, I hope deep thoughts will follow in the comments as we reflect on work, the economy and American society this Labor Day weekend.

September 6, 2009 in Prisons and prisoners | Permalink | Comments (18) | TrackBack

Interesting review of closing penitentiaries due to the prison economy

This weekend's Wall Street Journal includes this effective piece headlined "Lights Out at the Penitentiary: Strapped States are Shutting Prisons, But Moving 1,100 Inmates -- Beds and All -- Is a Trial."  Here is how it gets started:

Jeffrey Woods, warden of the Hiawatha Correctional Facility here at the eastern end of Michigan's Upper Peninsula, was vacationing on Lake Huron when his cellphone rang on July 1.  The message from his boss: Hiawatha, which had been slated to shut down in October as part of a sweeping downsizing of the state's prison system, would now have to close by Aug. 7.  That meant he had just five weeks to ship out 1,100 inmates and 207 staff.

"I stopped sleeping" after that, says Mr. Woods, who kept a to-do list by his bed and wrote down new tasks when he was jolted awake in the middle of the night.  The scramble to empty Hiawatha prison is part of a rapid shift in thinking about how many people should be locked up in the U.S., and for what crimes.

For three decades, state and local governments built and filled jails to make good on promises to get tough on crime.  Now, the recession and collapsing budgets are forcing an about face.

Prisons are one of the biggest single line items in many state budgets, in part because nearly five times as many people are now behind bars as in the 1970s.  From California to New York, officials are now closing penitentiaries and releasing inmates early.  At least 26 states have cut corrections spending in fiscal year 2010, and at least 17 are closing prisons or reducing their inmate populations, according to the Vera Institute on Justice, a criminal-justice reform organization in New York.

The problem is especially acute in Michigan. Inmates here on average serve 127% of their court-ordered minimum sentences, well beyond the sentences of inmates in other states that offer parole, according to the Council of State Governments Justice Center.  The state last year spent $2 billion on prisons, and one third of all state employees work for the department of corrections, which is among the highest percentage in the nation.  With the collapse of the auto industry, the pressure to pare these costs is high.

September 6, 2009 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Detailed examination of the death penalty in Louisiana

LA deathThe Shreveport Times today has this effective article, headlined "Louisiana death penalty: an eye for an eye or ineffective?," which provides a detailed examination of the death penalty in Louisiana.  The paper indicates that this piece is only "the first in a series of stories by The Times about Louisiana's death penalty" and that in future articles it "will explore reasons for an apparent slowdown of executions, the costs of seeking the death penalty and the increasing number of death row inmates who are exonerated of their crimes and those whose sentences are overturned." Here are excerpts from this first piece:

The last execution in Louisiana was in May 2002. Leslie Dale Martin was put to death by lethal injection for the 1991 rape and killing of a 19-year-old college student. No other execution is scheduled, said Pam Laborde, Louisiana Department of Corrections spokeswoman.

Of the 27 men put to death since Louisiana reinstated the death penalty in 1979, 18 were executed between 1983 and 1988.  Seven more were put to death during the '90s and just two were executed since 2000.

That mirrors a national trend. There have been 1,171 executions nationwide since 1976. The annual number has steadily dropped from a peak of 98 in 1999 to 37 executions last year, the Death Penalty Information Center reports.

"Louisiana was one of the most active death penalty states in the first 10 years after the death penalty was reinstated," [Professor Burk] Foster said. "Then it began to slow down. When we switched from electrocution to lethal injection it slowed down even more."

The reasons for that trend are varied, but better, more qualified legal representation for death row defendants has contributed to a lull in executions and an increase in exonerations and sentences being reversed, Foster said.

Since 2007, 11 men, not including those exonerated, have been taken off death row for a variety of reasons, the DOC reports. Most have seen their death sentences reversed and were resentenced to life in prison....

As a result of those and other factors, prosecutors are seeking death sentences less frequently. Faced with higher costs, the need for a unanimous jury verdict and a lengthy, expensive appeals process, they instead are opting for life sentences with no parole. Today there are 4,280 life inmates in Louisiana's state prisons.

An estimated 111 death sentences were meted out in 2008 across the country — part of a continual decline since 1998. In Louisiana, nearly half of the inmates on death row were sent there by three parishes — East Baton Rouge, Caddo and Jefferson. Between 2000 and 2008, those same parishes also had the most death row commitments in the state. Orleans Parish, which has the highest per capita murder rate in the nation, had not sentenced anyone to death in at least 12 years until August.

"There are parts of Louisiana that are very pro-death, but more than half the parishes in this state have never returned a death penalty," said Richard Bourke, director of the Louisiana Capital Assistance Center in New Orleans. "The death penalty in this state is driven by a small number of individually, locally-elected officials."

September 6, 2009 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack