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September 26, 2009

Interesting discussion of contributions and legacy of Jeremy Bentham

I just noticed on SSRN this posting of an interesting looking book chapter discussing the contributions and legacy of Jeremy Bentham. Here is the abstract:

Jeremy Bentham is associated in criminology with his invention of the 'Panopticon.' In many ways this appeared as the quintessential disciplinary institution, training subjects to be 'docile' and obedient. Yet Bentham's classical criminology also stressed that actors are rational choice optimisers, and are to be seen as inventive and enterprising rather than servile and mindless. In part, the overemphasis on the Panopticon leads modern criminologists ignore this side of his thinking and to see Bentham as narrowly punitive and disciplinary. But in his later years he turned toward 'pecuniary sanctions', fines and damages, that he regarded as the optimal liberal sanction. Bentham outlined many of the advantages of monetary justice, and advocated their use in relation to almost every crime, in place of the more usual punishments. This chapter suggests a need to reconsider the contribution of Bentham to criminology and penology in terms of such later works and ideas rather than his advocacy of the Panopticon alone.

September 26, 2009 in Recommended reading | Permalink | Comments (3) | TrackBack

Notable buzz about proportionality review in capital cases

A helpful reader passed along some helpful information about recent developments concerning proportionality review in capital cases.  Here are the basics:

A cert petition in Holmes v. Louisiana, which questions whether the operation of Louisiana’s capital punishment scheme and the State Supreme Court’s proportionality review violate the Eighth Amendment’s guarantee against arbitrariness in capital sentencing, was recently spotlighted on SCOTUSblog's Petitions to Watch List here.  Notably, Charles Ogletree & the Houston Institute for Racial Justice at Harvard Law School are counsel of record.  And they have posted this press release on the case.

Relatedly, Bidish Sarma has an interesting little piece on proportionality review that was just posted on the Cardozo Law Review's online site, which can be accessed via this blog post.

September 26, 2009 in Detailed sentencing data, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Could and should new technologies help achieve perfect deterrence?

This amusing article, which is headlined "Fantasy iPhone applications: 20 apps we would like to see," provides a technology suggestion that might help criminal deterrence work even better:

Below we present 20 iPhone apps that we would like to see.  Some will remain the stuff of fantasy without bolt-on hardware, but others should not be too difficult for developers to create....

6) Jail time

Provides instant sentencing guidelines for the most common offences, so would-be criminals can make informed choices. 

I like this idea so much, I am inclined to support its development beyond just an iPhone application.  What if a program like this was pre-loaded on to every computer and could provide a pop-up window every time a computer user seemed to be doing something hinky?  I  would certainly like to believe that many folks would stop using their computers for sex crimes if they were effectively informed about how harsh the guideline sentencing ranges have become for these crimes in the federal system.

September 26, 2009 in Purposes of Punishment and Sentencing, Technocorrections | Permalink | Comments (3) | TrackBack

September 25, 2009

Technocorrections, economic realities and a new privacy/liberty relationship

Today's Washington Post has this interesting article focused on alcohol monitoring devices, which is headlined "Sweat Becomes Offenders' New Snitch: Alcohol-Sniffing Anklet Saves Money but Stirs Privacy Fears."  As this excerpt reveals, the piece discussion various important issues that come up in the context of many technocorrections:

[Bari Lynne] Williams wears a high-tech sensor on her ankle that can detect the faintest whiff of alcohol in her perspiration. If she sneaks a drink, the device will know it -- and so will a judge, who could put her behind bars for violating a court order to avoid alcoholic beverages.

At $12 a day, the anklet is a bargain, compared with $150 a day to house a minor offender such as Williams in the Loudoun County jail, and far less than the $24,332 a year it costs Virginia to keep a felon in state prison.  Best of all, backers say, Williams and other offenders pay the bill.

The biometric anklet represents a recent technological breakthrough whose popularity is gaining as state and local governments search for ways to close budget deficits during the recession. More than half of all states have slashed spending on corrections this year, while some, including New Hampshire, Michigan, California and now Virginia, are closing prisons, releasing some prisoners early or expanding the use of electronic monitoring.

Local governments are also targeting jails for cost-savings. Loudoun, which began using the alcohol-monitoring device 18 months ago, introduced a pilot program last week using anklets with global positioning system technology to track juvenile offenders. Fairfax County Supervisor Pat S. Herrity (R-Springfield) hopes to promote the use of it for his county, and a Fairfax County Circuit Court judge applied it to a defendant in a domestic violence case.

But the gadget has also stirred "Big Brother" jitters as technological advances make it easier for governments and corporations to keep tabs on people. While law enforcement has been using satellite-based GPS to track offenders' whereabouts for some time, privacy advocates say the alcohol-monitoring device -- known as Secure Continuous Remote Alcohol Monitor, or SCRAM -- has taken law enforcement into the realm of continuously and remotely monitoring people's physical condition. "We are at a point where no one could have even imagined 15 years ago," said Albert J. Lurigio, a professor of psychology and criminal justice at Loyola University who has written about electronic monitoring and privacy since a New Mexico judge, inspired by Spider-Man comics, became the first to sentence a defendant to home confinement with an electronic monitor.

The driver these days is money. The National Conference of State Legislatures lists 28 states that are squeezing savings from corrections by easing harsh drug laws, laying off staff workers or closing prisons. New Hampshire's governor has proposed using home confinement for habitual drunk drivers, and California lawmakers considered freeing thousands of nonviolent inmates and monitoring them with GPS devices before opting for less-controversial cuts.

As I was reading this piece, I got to thinking about how technology in general and technocorrections in particular could be producing a new a relationship between liberty and privacy.  Before certain modern technologies and technocorrections, one could generally assume that enhanced individual privacy would also advance and ensure enhanced individual liberty.  But, as this story spotlights, due to economic realities and other forces, some offenders who are willing (or required) to give up privacy by being monitored by GPS and SCRAM and other devices may actually be rewarded with increased liberty by being able to avoid extra time in prison or jail. 

Some related posts on GPS tracking and related technocorrections:

September 25, 2009 in Criminal Sentences Alternatives, Technocorrections | Permalink | Comments (8) | TrackBack

Around the blogosphere

Here are some posts of note around the blogosphere to close out the week:

In addition, lots of thoughtful bloggers are talking about the briefs submitted in the Supreme Court case of Pottawattamie County vs. McGhee, which concerns whether prosecutors have "absolute immunity" when presenting false evidence that produces a wrongful conviction.  Posts worth checking out include notable ones from Grits and Crime and Federalism and Simple Justice and The Volokh Conspiracy.

September 25, 2009 | Permalink | Comments (3) | TrackBack

Ninth Circuit awaits SCOTUS action on Second Amendment incorporation issue

As detailed in this SCOTUSblog post, the Ninth Circuit decided on Thursday to "put on hold its consideration of a case testing whether the Second Amendment right 'to keep and bear arms' restricts laws passed by state and local governments."  Here's more:

After a hearing before an 11-judge en banc Court in San Francisco, the Court issued an order vacating submission of the case of Nordyke et al. v. King et al. (docket 07-15763), until the Supreme Court acts on pending cases raising the same issue.

Earlier, a three-judge panel of the Circuit Court had extended the Second Amendment to the state, county and city level, through the Fourteenth Amendment.  That ruling was vacated when the Circuit Court agreed to reconsider the issue en banc.   The Supreme Court may act as early as next week on one or more of  three pending cases: National Rifle Association v. Chicago (08-1497), McDonald v. Chicago (08-1521), and Maloney v. Rice (08-1592).  All three are scheduled to be considered at next Tuesday’s private Conference.

How Appealing here links to press coverage of the en banc hearing and also to an audio of the oral argument. 

September 25, 2009 in Second Amendment issues | Permalink | Comments (0) | TrackBack

"Other states watching Arkansas lethal injection case"

The title of this post is the headline of this AP article discussing arguments yesterday in the Eighth Circuit.  Here is how it starts:

An attorney for four Arkansas death row inmates who are challenging the state's lethal injection procedure told a federal appeals court panel Thursday that even with new methods in place, the process can cause pain and suffering.

A three-judge panel of the 8th U.S. Circuit Court of Appeals heard the case filed on behalf of convicted killers Don William Davis, Jack Harold Jones Jr., Terrick Nooner and Frank Williams Jr.

Other death penalty states are watching the outcome, which isn't expected for several weeks. In fact, an attorney for Missouri death row inmate Reginald Clemons was in court to observe. The issue also drew attention earlier this month after a failed attempt to execute an inmate in Ohio.

Lethal injection had been on hold across the country until a Supreme Court ruling last year in a case out of Kentucky about whether the three-drug combination used in executions causes unconstitutional pain and suffering. Roughly three dozen states use the combination — an anesthetic, a muscle paralyzer and a substance to stop the heart.

After that ruling, Arkansas prison officials introduced new procedures. Joe Cordi of the Arkansas Attorney General's office told the panel the new protocol is thorough in trying to ensure that the inmate doesn't suffer. But the attorney for the inmates, Scott Braden, said concerns remain both about the written procedures and how they would be carried out, especially because Arkansas has a history of botched executions.

Seom recent related posts on lethal injection litigation:

September 25, 2009 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Alabama litigation over whether and how homeless sex offenders have to register

This article from Alabama, headlined "Alabama's sex offender laws challenged," spotlights some of the legal difficulties surrounding registration requirements for homeless sex offenders.  Here is how the piece starts:

A Montgomery circuit judge has struck down a portion of the state's sex offender law, saying that a provision that requires indigent offenders to provide a verifiable address as a condition of their release is unconstitutional. Advertisement

Several homeless sex offenders sought to have the Class C felonies that they were charged with for not complying with the law dismissed citing that the provision violated their rights. But the state's top attorney said he's ready to take the cases to the highest court he can to protect children from pedophiles.

Under Alabama's Community Notification Act, incarcerated sex offenders must provide law enforcement officials a verifiable address where they will live 45 days prior to their release.

Failure to comply with that provision is a Class C felony, and the sex offender is immediately taken to county jail upon release. The offender could face 15 years to life in prison if convicted because of the state's Habitual Offender Act, according to briefs filed on behalf of the homeless defendants.

Lawyers for the defendants in the cases argued successfully that they were being punished for not complying with a law that was physically impossible to abide by, and that they were essentially being re-imprisoned after they had served their sentences.

Attorney General Troy King said he is appealing the rulings because an "actual address," which the law requires, can be anything from a homeless shelter to a park bench.

September 25, 2009 in Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

September 24, 2009

Below-guideline sentence for corrupt Alaska state representative

As detailed in this local article from Alaska, which is headlined "Former Alaska rep gets 6 months in state's bribery scandal," another high-profile white-collar offender has received another high-profile below-guideline federal sentence.  Here are the details:

Former state Rep. Beverly Masek was sentenced to six months in federal prison today for her part in the Alaska political corruption scandal, a lenient punishment that sliced a year from the minimum confinement recommended by federal guidelines.

U.S. District Judge Ralph Beistline said Masek betrayed the public trust and the oath of office she took five times in Juneau -- one for each of the two-year terms she served representing the Willow area in the Legislature.  Masek admitted taking two illegal payments in 2003 of $2,000 each from former Veco Corp. chief executive Bill Allen, the second time in payment for spiking an oil-tax bill. Allen, an oil-field contractor, was concerned that the tax bill would hurt his clients.

In delivering a sentence substantially below the 18- to 24-month recommendation in federal guidelines, Beistline cited the long delay between the commission of the crime and its prosecution by federal authorities, who didn't charge Masek until March.  She pleaded guilty to conspiracy to commit bribery.

Masek, 45, a former Iditarod musher, cried throughout the 80-minute hearing, including when she promised to obtain sobriety treatment after her prison sentence.  "I feel I've been operating on a broken sled runner," Masek said, recalling her days has a dog musher. "I feel I've been on that broken sled runner for quite a while. I'd really like to fix it."

September 24, 2009 in Booker in district courts, White-collar sentencing | Permalink | Comments (1) | TrackBack

"Judge: Teen too pregnant for jail; She can give birth first, then go, judge says"

The title of this post is the headline of this interesting local article from Michigan. Here are the details:

A 19-year-old Pontiac woman was to be sentenced to prison Wednesday for her role in a crash that killed her pregnant friend. Instead, she will get a nine-week reprieve because she is now pregnant and due to deliver in five weeks. The sentencing judge said he did not want the child born behind bars.

Alexis D. Wilson stood before Oakland County Circuit Judge Edward Sosnick. Sosnick told her she would have to report for sentencing Nov. 25. Her baby is due Nov. 1.

Wilson, who is unemployed, faces 43 to 86 months in prison for the July 6, 2008, death of Tamia Williams, 17. Blood tests, taken at the scene but completed almost six months later, showed traces of marijuana in Wilson.

She pleaded no contest earlier this year to driving while intoxicated causing death, manslaughter with a motor vehicle and operating a motor vehicle while intoxicated, causing a miscarriage.

Her attorney, Cyril Hall, said there was no evidence marijuana was a cause. "There is no evidence whatsoever that this accident was the result of intoxication," he said. "It's like drinking 30 days ago, then you get stopped today and arrested for drunk driving."

However, under Michigan law, drivers who have marijuana in their bloodstream at the time of an accident are guilty of a crime.

September 24, 2009 in Offender Characteristics, Race, Class, and Gender | Permalink | Comments (6) | TrackBack

"Time for a Moratorium to Rethink Executions"

The title of this post is the headline of this new commentary now up at The Huffington Post authored by Ohio's Secretary of State (and US Senate candidate), Jennifer Brunner.  The piece springboards off the failed execution attempt of Romell Broom in Ohio last week to set forth a fairly thorough (and rambling) assault on the death penalty on Ohio or anywhere else.  Here are a few excerpts from an interesting piece that might shake up the status quo concerning capital punishment in Ohio:

I am running for the United States Senate because I believe that public service is for the purpose of helping our fellow citizens realize improvement in their lives.  I believe that a government that treats its citizens with fairness, equality and respect, brings peace and justice to its citizens.  In this framework, killing in retribution for killing has no place.  It is in the community of sharing each other's burdens that we bridge the human chasm we cannot comprehend....

After Broom's execution was called off, the American Civil Liberties Union of Ohio asked state officials to immediately halt executions. "Ohio's execution system is fundamentally flawed. If the state is going to take a person's life, they must ensure that it is done as humanely as possible," ACLU Ohio counsel Carrie Davis said. "With three botched executions in as many years, it's clear that the state must stop and review the system entirely before another person is put to death."

I agree....

I cannot condone a system that perpetuates the pain from which sprang the punishment. A civilized society does not abide barbarism to ease its pain. It is not justice for me. Even when those who represent me and make the laws say that it is, I say that the people have said, "Then if this is justice, it must not perpetuate the cruelty from which it has sprung." It must neither torment its recipients nor its administrators.

In Ohio, after a 30-month review of the state's death penalty system, a team of Ohio legal experts, working under the auspices of the American Bar Association's Death Penalty Moratorium Implementation Project, issued a report on September 24, 2007 calling for a temporary halt to executions in Ohio in light of numerous problems the team uncovered....

The failed attempted execution of Romell Broom is the latest reason to end the death penalty in Ohio. Since 1976 Ohio has executed 32 people. That puts Ohio in the top 10 of states and it's a top 10 we must exit....

Now is the time to rethink, first, how we kill, and then move on to the larger question of whether we even should kill in the first place.  We must begin to be the change we seek to improve individual lives one-by-one with temperance, patience and understanding.  We must focus on the improvements that shape and build and strengthen individual lives in our communities.  We must recognize and internalize that all are entitled to the basic rights as we the people have determined in our constitutions and entrusted to our courts to protect.  And when one of us violates those rights, we must continue to abide by these principles in addressing it.

There is much discussion ahead as we dare to embrace the change that lay before us. With your help I can begin that discussion in the Senate along with many other thoughtful and diverse minds.

In the interim I call for an immediate moratorium on the death penalty to allow the dialog to begin once again -- not just about how people are put to death, but whether they should be.  Like 15 other states that have outlawed prisoner executions, I believe that answer is no. I ask that you join me.

September 24, 2009 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (24) | TrackBack

Oregon Supreme Court declares two non-capital sentences disproportionate

A helpful reader altered me to today's ruling by the Oregon Supreme Court in State v. Rodriguez/Buck, No. S055720 (Ore. Sept 24, 2009) (available here), in which the Court relies on the state's constitutional proportionality provision to deem two sentences in two sex offense cases too long. Here is how the opinion starts:

These two criminal cases, which we consolidated for argument and disposition, require us to interpret and apply the requirement in Article I, section 16, of the Oregon Constitution that "all penalties shall be proportioned to the offense."

Veronica Rodriguez touched a 13-year-old boy when, standing behind him in a room with 30 to 50 other people, she brought the back of his head into contact with her clothed breasts for about one minute. Darryl Buck touched a 13-year-old girl when the girl, who was sitting next to him while she was fishing, leaned back to cast her fishing line, bringing her clothed buttocks into contact with the back of his hand and Buck failed to move his hand; that happened one or two more times. When they stood up, Buck brushed dirt off the back of the girl's shorts with two swipes of his hand. Each of those touchings was unlawful because a jury in Rodriguez's case and a judge in Buck's case found that they had been for a sexual purpose -- a fact that brought the physical contact within the definition of first-degree sexual abuse. ORS 163.427(1)(a)(A). Rodriguez and Buck were both convicted of that crime.

First-degree sexual abuse carries a mandatory sentence of six years and three months (75 months) in prison, under Ballot Measure 11 (1994). In each of these cases, however, the trial judge determined that the mandatory sentence was not "proportioned to the offense" committed by the defendant and therefore was unconstitutional under Article I, section 16. The trial courts imposed shorter sentences -- 16 months in the case of Rodriguez and 17 months in the case of Buck. The state appealed the trial courts' sentencing rulings, and Rodriguez and Buck cross-appealed their convictions. The Court of Appeals affirmed the convictions, but agreed with the state that the trial courts should have imposed mandatory 75-month sentences.  State v. Rodriguez, 217 Or App 351, 174 P3d 1100 (2007); State v. Buck, 217 Or App 363, 174 P3d 1106 (2007).

Defendants filed petitions for review, which we allowed. For the reasons that follow, we affirm defendants' convictions. However, we reverse the decisions of the Court of Appeals as to sentencing and affirm the sentences imposed by the trial courts. We conclude that the imposition of the mandatory 75-month sentence for first-degree sexual abuse, as applied to the facts of Rodriguez's and Buck's offenses, would violate the constitutional requirement that the penalty be proportioned to the offense.

September 24, 2009 in Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

State judge makes pitch for ignition locks for drunk drivers

Thanks to a helpful commentor, I just noticed this terrific Slate piece in which a retired state court judge makes an effective pitch for one of my favorite modern technocorrection punishment : ignition locks for drunk drivers.  The piece is headlined "Baby, You Can't Drive Your Car: A judge's favorite punishment for drunken drivers—ignition-interlock," and it discusses lots of legal reform issues that transcend just how to deal with drunk drivers:

On May 28, 1987, I became the first judge in the state of California to order convicted drunken drivers to install ignition-interlock devices in their cars.  The device is designed to stop people who have been drinking alcohol from starting their cars by requiring them first to blow into it.  If there is alcohol on the driver's breath, the device will not allow the ignition system to operate.

Ordering convicted drunken drivers to install these devices seems to me a matter of common sense and basic safety.  But in fact, the matter proved far more complicated.  The California courts may soon require judges to follow my lead on ignition-interlock sentencing.  But it has taken more than 20 years and new legislation, which is on Gov. Arnold Schwarzenegger's desk awaiting his signature. Why has it taken so long?  And why do we need a law mandating such an obvious safety measure when judges could put it into effect themselves?

My own history suggests one unsettling answer.  Early on, my fellow judges did not support my ignition-interlock sentences. Judges, no less than the rest of us, resist change. My colleagues who were assigned to calendars filled with drunken driving charges wanted to dispose of these cases quickly and quietly, obtaining guilty pleas as early in the process as possible. Completing the additional paperwork that went with ignition-interlock devices did not sit well with them.

Then came the totally unexpected opposition from the local chapter of Mothers Against Drunk Driving. In their view, the ignition-interlock devices weren't punitive enough; they preferred more jail time for drunken drivers. Incarceration, however, is a temporary remedy. As the recidivism numbers clearly demonstrate, convicted drunken drivers return to the roads in numbers too great to ignore.

And finally, in my own court, as I continued to order the installation of ignition-interlock systems, I started to worry about fairness, since the devices are expensive....

Today, almost all 50 states have laws permitting the imposition of ignition-interlock devices as sentencing alternatives for drunken drivers. The devices have a proven track record as an effective deterrent.  The American Journal of Preventive Medicine notes that five out of six studies found that interlocks reduced the rate of recidivism for DWI charges.  Participants in the interlock programs were 15 percent to 69 percent less likely than other offenders to be rearrested for drunken driving.

And yet, as a recent New York Times op-ed noted, while the effectiveness of the devices is clear, judges often fail to order the installations, even when the law requires it. Anecdotally, you can take your pick of explanations: too much paperwork; too much court time to review the results of the breath printouts; opposition to any other sentencing options other than jail; ignorance of the fact that this is a sentencing alternative.  In any case, just as convicted drunken drivers must be made to use the devices, judges must be made to order them.  The well-documented carnage on our highways and the tremendous economic impact wreaked upon us by drunken drivers are far too great to leave to judicial whim.

In California, the bill on the governor's desk, which passed earlier this month, would require judges to order the installation of ignition-interlock devices in the vehicles of convicted first-time and repeat drunken drivers, as a pilot project in the counties of Los Angeles, Alameda, Sacramento, and Tulare.  If Gov. Schwarzenegger signs the bill, the pilot program would start in July 2010 and become statewide law in 2016.  This legislation is supported by a wide array of law enforcement agencies, including MADD, which has changed its stance on ignition-interlock sentencing.

Schwarzenegger should sign the bill. It will make our judges better.  And it will make our streets safer.  Finally.

There are so many important insights and lessons to be drawn from this story, especially as it relates to the institutional status quo biases that often prevents sensible and effective sentencing and punishment reforms from gaining traction.  Here is hoping not only that ignition locks soon become a standard punishment term for drunk driving, but also that this story helps folks interested in "smart on crime" reforms to understand the structural challenges that make even the soundest sentencing changes hard to achieve.

Some related posts on sentencing drunk drivers:

September 24, 2009 in Criminal Sentences Alternatives, Technocorrections | Permalink | Comments (7) | TrackBack

SCOTUS stays Texas execution based on pending Alabama case

As detailed in this AP report, the "U.S. Supreme Court Wednesday night stopped the scheduled execution of Texas death row inmate Kenneth Mosley a day before he was to receive lethal injection for the fatal shooting of a suburban Dallas police officer."  Here's why:

The court agreed to halt the lethal injection until it resolves an Alabama death penalty case that Mosley's attorney said could affect his case. The Alabama case, to be heard by the high court in November, centers on whether a trial lawyer was constitutionally deficient in failing to raise objections during the punishment phase of the trial.

Mosley's attorneys have raised similar claims, saying his trial attorneys were deficient for not objecting to victim impact testimony from the officer's wife and for not calling witnesses to testify about Mosley's drug and alcohol addictions. Mosley, 51, was condemned for the February 1997 shooting death of Garland Officer Michael David Moore. Moore was responding to a 911 call about a robbery at a bank.

September 24, 2009 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

A Bill James furlough for a jailed Red Sox fan

I became a Bill James fan as a kid after reading the baseball guru's extraordinary analysis of a seemingly meaningless loss mid-season by the Kansas City Royals in the mid 1980s.  Two decades later, I recall this memory because of this local sentencing story, which is headlined "Jailed Red Sox fan in Iowa gets Royal treatment," sent my way by a helpful reader.  Here are excerpts:

It’s like a little bit of the Bay State in the Corn Belt. Red Sox Nation citizenship got one Hawkeye out of jail for the day.

Taking a page from furlough-happy Massachusetts jurisprudence, an Iowa judge sprung a jailed man so he could watch his beloved Red Sox play the Kansas City Royals last night.

Randy Barker is half-way through two concurrent 10-day sentences for violation of a protective order, but prior to his conviction last week, his dad scored tickets to the Sox Midwest showdown, according to his court-appointed lawyer, Margaret King. She told the court Barker is a diehard Sox fan.

In a move King called “compassionate,” magistrate Benny Waggoner allowed Barker’s father and brother to pick him up from jail, drive him the four hours to Kauffman Stadium in Kansas City, then bring him back, she said. “He’s going to be allowed to go with his daddy and brother. They’ll bring him back tonight,” she said. “It’s a small town. Everybody knows everybody, and everybody trusts everybody . . . Everybody had a lot of compassion for him.”

When reached, the Van Buren County Sheriff’s Office in Keosauqua, Iowa, said no one was available to comment on the arrest. County Attorney Craig Miller said he objected to the decision, but not strenously “under the circumstances.” “I opposed the motion, because he was serving a jail sentence,” Miller said. “I think the judge made the decision, trying to be fair to the defendant and to the family.”

September 24, 2009 in Criminal Sentences Alternatives | Permalink | Comments (1) | TrackBack

September 23, 2009

Charting the uncertain future for death row inmates left behind after New Mexico repeal

This interesting local article from New Mexico, which is headlined "Uncertain Fates: NM’s next governor could commute death sentences," discusses the uncertainty that surrounds the fate of the two condemned murderers that were left on death row even after New Mexico repealed its death penalty earlier this year. Here is how it starts:

And you thought capital punishment was dead. Although the New Mexico Legislature voted to repeal the death penalty in March, the new law doesn’t impact the two men currently on death row or any others who could be sentenced to death for crimes committed before July 2009.

Gov. Bill Richardson told reporters at the bill signing that he wouldn’t use his pardon power to commute the remaining sentences, and so death-penalty opponents looked to the New Mexico Supreme Court for relief.

In May, the court’s justices entertained the idea of finishing what the Legislature started, during oral arguments in the case of accused deputy-killer Michael Astorga. They, too, left the issue hanging when they quashed Astorga’s appeal, without explanation, on Sept. 17.

This volleys the death penalty into the voters’ court: The next governor will have the power to commute the sentences of those left on death row.

September 23, 2009 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Gubernatorial candidates discuss California prison reforms

This front-page article from today's Sacramento Bee, which is headlined "Gubernatorial hopefuls split on California prison changes," suggests that mostly standard ideas are coming from the leading candidates looking to take over one of the most dysfunctional sentencing and prison states.  Here are the highlights from the piece:

Gov. Arnold Schwarzenegger isn't done battling federal judges over plans to relieve California prison overcrowding. But as Schwarzenegger's last year in office approaches, much of the burden for cutting state inmate numbers will fall to the chief executive who follows him.

Schwarzenegger filed a plan last week to ease overcrowding that falls well short of a demand by a three-judge panel that he reduce the population by 40,000 inmates within two years. That means the four declared gubernatorial candidates as well as Attorney General Jerry Brown, who is widely expected to run, face questions about how they would act to fix what everyone acknowledges is a broken state corrections system.

In conversations with The Bee, they've laid out two distinct visions:

Two of the Republican candidates, former eBay CEO Meg Whitman and Insurance Commissioner Steve Poizner, have rejected proposals that would let inmates out early or keep some parole violators out of prison. The two have also called for building more prisons to relieve overcrowding and sending inmates to other states with surplus bed space.

On the other side are Democrat Gavin Newsom, mayor of San Francisco, and Republican Tom Campbell, a former congressman, both of whom support reworking prison and parole guidelines to divert more inmates into parole and keeping some parole violators out of prison.

Brown, in interviews with The Bee, declined to comment on specific reform proposals, saying that as attorney general he has to enforce whatever proposals become law. But in the past he has been harshly critical of a prison system that he said grew as a result of media-driven fears and profiteering by private corrections companies and prison guards.

Both he and Newsom said that reducing the state's nation-high recidivism rate – estimated at more than 70 percent – would go a long way to easing prison overcrowding. "We're simply not preparing these prisoners for life outside of the system," Newsom said, "and the issue of re-entry programs becomes critical. Therein lies our big focus, at least mine."

Whitman and Poizner, on the other hand, have tried to out-tough each other, railing against legislation passed last month by the state Senate that would have let some inmates out earlier and appointed a commission to rework state sentencing laws.

September 23, 2009 in Scope of Imprisonment | Permalink | Comments (3) | TrackBack

"Lil Boosie Gets Two-Year Prison Sentence For Drug Possession"

And now from the entertainment sentencing news desk, as the title of this post is the headline of this sentencing story from MTV.  Here are the basic details:

Louisiana rapper Lil Boosie (born Torrence Hatch) pleaded guilty to a third-offense marijuana possession charge on Tuesday and was sentenced to two years in prison. The plea deal came just one day before it was announced that the MC's latest album, Superbad: The Return of Boosie Bad Azz, will debut in the top 10 on next week's Billboard albums chart.

According to Baton Rouge station WBRZ, Boosie will serve at least one year in prison after prosecutors reached an agreement with his lawyers in which all but two years of a 10-year sentence were suspended. The rapper will also be on active supervised probation for two to five years after his release from prison. If he completes his probation, the gun charge will be dropped.

"I'm ready to get this behind me," Boosie, 25, told Judge Chip Moore one week before he was scheduled to stand trial in connection with his October 22 arrest.  During the incident, East Baton Rouge sheriff's deputies found a bag of marijuana, a cigar loaded with weed and another unspecified drug and a gun in a car driven by Boosie.  At the time, he was charged with third-offense possession of marijuana, punishable by up to 20 years in prison, as well as possession of a firearm with a controlled dangerous substance, a crime that carries a mandatory minimum five-year prison term.

The judge set a November 9 sentencing date and strongly warned Boosie to stay out of trouble and away from drugs, guns and convicted felons between now and his sentencing, according to WBRZ. If the rapper is rearrested, tests positive for drugs or fails to show up for his November sentencing date, the judge warned the consequences will be harsh. "When I do catch up with you, I can assure you I will not abide by this agreement of 10 years. It will be much more," Moore said.

September 23, 2009 in Celebrity sentencings | Permalink | Comments (28) | TrackBack

Ninth Circuit upholds barring from San Francisco as a supervised release condition

SF bridge

A Ninth Circuit panel today has an interesting ruling upholding an unusual condition of supervised release in US v. Watson, No. 08-10385 (9th Cir. Sept. 24, 2009) (available here). Here is how it starts:

Deandre Watson, who pled guilty to carjacking pursuant to a plea agreement containing a waiver of the right to appeal, challenges a condition of his supervised release barring him from entering San Francisco without the prior approval of his probation officer. He argues that the district court did not provide the necessary notice before issuing this condition and that the condition itself violates his “constitutional rights to travel and move, to freedom of association, to intimate association with his family and related rights.”

A waiver of the right to appeal does not bar a defendant from challenging an illegal sentence. We conclude, however, that the disputed supervised release condition directing Watson to stay out of San Francisco during the term of his super vised release unless he obtains permission from his probation officer is not unlawful. It is reasonably tied to the court’s stated aims of rehabilitation and deterrence and is no more restrictive than reasonably necessary to serve those purposes. Nor do we find here any of the other circumstances that cause a waiver of appeal to be ineffective. The language of Watson’s plea agreement waiver encompasses this appeal and the waiver was knowingly and voluntarily made given the circumstances surrounding the agreement. We accordingly dismiss the appeal.

September 23, 2009 in Criminal Sentences Alternatives | Permalink | Comments (0) | TrackBack

Still another noteworthy federal child porn downloading sentence

This local story, headlined "Teacher sentenced in child pornography case," provides yet another noteworthy example of the variation and uncertainty that surrounds federal child porn sentencing. Here are some unique parts of this sentencing story that drew my attention:

Judge F. Dennis Saylor IV, whose federal courtroom was awash in competing human tragedies, yesterday sentenced a former teacher of the year to 70 months in prison for possession of child pornography.

The case of Gregg Woodward, 46, formerly of Milford, confronted the judge with the feelings read by prosecutor Karin M. Bell of a young woman whose image was found on Mr. Woodward’s computer because she had been raped and photographed by her father when she was 10 and 11 years old: that she was being raped over and over again when she discovered that the pictures of her could be viewed forever by people like Mr. Woodward on their computers.

But defense lawyer Raymond A. O’Hara said that law enforcement investigated and found no evidence Mr. Woodward, a Foxboro High School teacher, had ever used public computers to view pornography, much less acted out his fantasies to abuse children. He said the law needs to make a distinction between voyeurs and predators.

But the case of the defendant, whose parents live in Millbury, became even more serious after he was incarcerated in Wyatt Detention facility in Rhode Island following his guilty plea. He was distributing to other inmates hand-drawn images depicting the rape and torture of minor children, according to Assistant U.S. Attorney Bell. A search of his cell in the protective custody section of the jail in April also turned up a handwritten, illustrated 65-page document of stories and plays focusing on the rape and torture of minor girls by family members, Ms. Bell said.

Following that incident Judge Saylor allowed a motion by Mr. O’Hara to have Mr. Woodward hospitalized in a prison psychiatric facility because his client “feared he was no longer in control of his thoughts or actions” and suffered “auditory and visual hallucinations.” Mr. O’Hara said that his client had been cut off from medications and counseling following his March 31, 2008 arrest by the FBI....

The prosecutor, who recommended a sentence of 87 months in prison, said that in addition to the direct harm to the subjects of pornography, those who buy it create the demand that provides the incentive for people to produce it. She also objected to the defense of what Mr. Woodward did not do — abuse girls in person.

But Mr. O’Hara said there is something wrong with a justice system that sentences a man who lured an underage girl to Massachusetts to have torrid sex with him to less time — 60 month’s in prison as happened in federal court in Boston last year — than the government is seeking for Mr. Woodward, who is charged only with viewing pornography. Less than 20 years ago he said he had a case in which defendants who received pornography passed a lie detector test indicating they had never abused a child nor had a tendency to do so and “the case disappeared” because of the apparent policy of the U.S. Attorney’s office back then....

Judge Saylor said that he was torn by this “unusually difficult case” and other pornography cases. As a parent he is appalled by child pornography, but numerous of his fellow federal judges have testified that they feel the advisory guidelines for pornography are too severe. He discounted the increased sentence the guidelines call for merely for using a computer to view pornography and sentenced Mr. Woodward to less than the 78 to 97 months the guidelines otherwise would have called for.

Some related federal child porn prosecution and sentencing posts:

September 23, 2009 in Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

"Prosecutors Defend False Testimony as 'Truthful, but Inaccurate'"

The title of this post is the headline of this new article in the National Law Journal. Here is how it gets started:

Federal prosecutors in Chicago have asked a judge to reconsider her ruling last month that four convicted drug traffickers deserve a new trial because prosecutors engaged in misconduct.

The prosecutors from U.S. Attorney Patrick Fitzgerald's office on Sept. 18 filed a motion for reconsideration in the case, telling U.S. District Judge Joan Lefkow that the government witness who she determined gave false testimony at the trial actually "was truthful, but inaccurate."  When taking into account additional evidence not cited in Lefkow's decision and viewing the case as a whole, no finding of misconduct is justified, the prosecutors argued.

I wonder if lots of defendants and other accused of perjury will start taking a page from the government's playbook here and explain false statements as being truthful, but inaccurate.  Perhaps John Edwards and Mark Stanford and other politicians who get in trouble might also be drawn to this interesting approach to revising history concerning past statements that prove to be false.

Related post:

September 23, 2009 in Sentences Reconsidered, Who Sentences | Permalink | Comments (8) | TrackBack

Pastor and city leaders fighting over sex offender working at church in California

This local story out of California, which is headlined "Pastor: San Bernardino council ultimatum is unconstitutional," reports on the fascinating details of a brewing constitutional debate involving churches freedom and local sex offender restrictions.  Here are the basics:

Responding to a demand that First Church of the Nazarene ban registered sex offenders or to stop receiving city money to host a youth facility there, the church's pastor contended the ultimatum is an unconstitutional violation of his religious freedom. "I cannot think of anything more antithetical or repugnant to the fundamental values upon which our nation was founded  — freedom of religion, freedom to worship God without interference from the government, freedom to practice Christianity without oppression," Pastor David Rhone wrote Tuesday in a letter to Mayor Pat Morris and the council.

The controversy follows Monday's revelation — through the leak of a confidential memo — that a man convicted of incest and lewd and lascivious conduct with a person younger than 14 performed work at the First Church of the Nazarene.

A police investigation determined that the man's presence at the church did not present a danger to children or that any new crimes were committed.  Nevertheless, the issue is sensitive not only because San Bernardino is in the middle of election season, but because the church hosts San Bernardino's flagship Operation Phoenix youth center.  That center was managed by Mike Miller until Miller's arrest in July 2008 on suspicion of child molestation. Miller has pleaded not guilty and is incarcerated while awaiting trial.  The church also hosts SOAR Charter Academy and Valley Christian Pre-school.

Rhone said Tuesday that he would rather sever the church's relationship with the city than let the government decide who can attend services, but he does not expect that to come to pass. Instead, he expects the council to take back its demand and apologize.  "They've got to reconsider because what they've asked us to do is unlawful," Rhone said.

But City Attorney James F. Penman, whose investigators spent Tuesday passing out fliers reporting a sex offender had performed work at the church, says the council was within its rights to make demands of Rhone's church.  The city attorney said the council did not take over the church's decisions on which sinners can be preached to. Penman maintained the demand is meant to protect children participating in a city-run program and is a condition on partnering with the city.

Penman also thinks Rhone was irresponsible in allowing a known sex offender to perform work near children's facilities. "There's an old saying that comes out of the Bible: `Who is without sin can cast the first stone.' I don't think Pastor Rhone is a position to cast stones."  For his part, Rhone sees Penman's actions as electoral politics.  Penman is challenging incumbent mayor Morris for the city's top job.

Police Chief Keith Kilmer said Tuesday the mere presence of a registered sex offender in an area does not mandate public notification. "The threshold is when someone poses a risk to public safety and that would be based on circumstances that are happening, (such as) if someone is hanging around a school and they have no business there," Kilmer said.

Despite the Police Department view that children were not threatened while on church property, all five council members who were present Monday night voted to present First Church of the Nazarene with the ultimatum. City Councilwoman Wendy McCammack, who recommended the ultimatum to her colleagues, said Tuesday she's not afraid of any legal challenge. "If it's unconstitutional, then I guess he can sue us," she said. "We have a Constitutional responsibility, local, state and federal, to keep city participants safe."

September 23, 2009 in Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

September 22, 2009

Federal hearing about constitutionality of Ohio's re-execution attempt pushed back months

This local AP story, which is headlined "Second attempt to execute Ohio killer further delayed," documents why the state of Ohio is very unlikely to get another chance to execute Romell Broom anytime soon.  Here are the basics from the AP story:

A federal judge on Tuesday further delayed an unprecedented second attempt to put a condemned rapist and killer to death by lethal injection. U.S. District Court Judge Gregory Frost's order, which pushes a hearing on the fate of inmate Romell Broom from next week to Nov. 30, was unopposed by the state.  It gives the state and Broom's attorneys time to gather more information to argue over trying to execute Broom again for the 1984 rape and murder of a teenage girl he abducted at knifepoint in Cleveland.

Because this initial federal court hearing won't take place until late November (and especially given the state seems in no hurry now to try again to execute Broom), it is quite unlikely that the district court will even issue a ruling before next year and the inevitable appeal to the Sixth Circuit and the Supreme Court could easily extend the Broom case deep into 2010 and beyond.

The really interesting and uncertain question going forward concerns what will happen in other scheduled Ohio executions in the weeks and months ahead.  I believe there are three more executions scheduled in Ohio before the end of 2009.  Especially now that the litigation over Broom's status has been put on a slower track, the hottest lethal injection fights are now likely to focus on the defendants who are scheduled to be executed in October and November.

Related posts on botched Broom execution attempt:

UPDATE:  I noticed here these three telling comments, which were the first responses to this story on Columbus Dispatch website:

Comment 1: November 30th?  Great ruin this poor victim's families holiday season.  One I might add that she hasn't been able to enjoy since 1984.  This scum needed to die way before now.  He has had too many years on this planet.

Comment 2: I find this situation unbelievable, An I/O (interosseous) device is painless, quick and simple to use.  Used everyday in prehospital and clinical settings with great success.  Designed to use when an IV placement is difficult.  Delaying this execution is cruel and unusual punishment for the convict and more so, for the family.

Comment 3: This is astounding!  Put his rear in the chair or line him up on a wall and have target practice with him!!!  What he is 'going through' is nothing compared to the cruel and unusual punishment he put an innocent little girl through!  Heck, if I had access to him, I'd do it myself!!

September 22, 2009 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (16) | TrackBack

State AGs and the Second Amendment incorporation debate

Thanks to law.com, everyone can check out this very interesting piecefrom a California legal newspaper headlined "With 9th Circuit Set to Hear Firearms Case En Banc, Calif. AG Walks Line on Gun Control."  Here are a few highlights:

A hard-fought firearms case is coming to the 9th U.S. Circuit Court of Appeals for en banc arguments Thursday, with the usual gun groups weighing in as amici on the usual sides.

Though the case arose in Alameda County, Calif., home to California Attorney General Jerry Brown, he hasn't submitted briefs. But in another case across the country, involving the same issue, Brown filed an amicus that has gun control advocates shaking their heads. After the 7th U.S. Circuit Court of Appeals decided that the Second Amendment didn't apply to state or local governments — and therefore upheld a local handgun ordinance — Brown joined those asking the U.S. Supreme Court to review the ruling.

The move throws a spotlight on how Brown, a presumed candidate for the governorship, handles this sometimes socially divisive issue. His 7th Circuit brief disappointed — but didn't surprise — Juliet Leftwich, the legal director of Legal Communities Against Violence in San Francisco. "He just stands in stark contrast to Bill Lockyer, who was an active leader in this area," she said....

Chief Deputy Attorney General James Humes said the Justice Department does plenty to stanch the scourge of guns but simply believes in different approaches to the problem. "I would say Jerry Brown is much more interested in law enforcement than legislation," said Humes.

Under Brown's leadership, Humes said the department has seized 1,194 firearms and arrested 87 individuals on California's list of those prohibited from carrying firearms. Authorities have also nabbed people illegally transporting guns into the state after buying them at shows in Nevada. As for the attorney general's position in the 7th Circuit case, Humes calls it a "common-sense" approach. "The Second Amendment exists, and it will exist whether we like it or not," he said....

According to Humes, the AG didn't weigh in on the 9th Circuit case because he agreed with part of the ruling — the panel had simultaneously affirmed the county's right to regulate guns beyond the home, in sensitive public places. Indeed, Brown argued for similar treatment in his 7th Circuit brief.  The attorney general also held up the 9th Circuit panel ruling as evidence that such high court guidance was necessary.

Beyond raising a variety of issues concerning how Jerry Brown is trying to position himself politically, this article raises in my mind of the interesting challenges that Heller and the Second Amendment incorporation debate create for elected state Attorneys General. 

I would surmise all but a few northern and urban places, it would not be politically wise for a state Attorney General to be vocally opposed to individual gun rights and thus it would not be shrewd to come out publically against incorporation of the Second Amendment.  And yet, I also think that most state Attorneys General realize that there are serious legal and practical headaches if (and when?) the Second Amendment is declared applicable as a constitutional limit on any and all state gun restrictions and regulations.  My guess is that, like AG Brown, most state AG will be inclined to dodge this issue as much as possible while perhaps privately hoping that the Supreme Court refuses to incorporate the Second Amendment.

Some related Second Amendment incorporation posts:

September 22, 2009 in Second Amendment issues | Permalink | Comments (3) | TrackBack

"Immigration Prosecutions at Record Levels in FY 2009"

The title of this post is the headline of this new data item from the folks at the Transactional Records Access Clearinghouse (TRAC). Here is how the report starts:

The latest available data from the Justice Department show that during the first nine months of FY 2009 the government reported 67,994 new immigration prosecutions. If this activity continues at the same pace, the annual total of prosecutions will be 90,659 for this fiscal year.  According to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC), this estimate is up 14.1 percent over the past fiscal year when the number of prosecutions totaled 79,431.

The comparisons of the number of defendants charged with immigration-related offenses are based on case-by-case information obtained by TRAC under the Freedom of Information Act from the Executive Office for United States Attorneys.

These numbers ought to bring a smile to Lou Dobbs and others who are often calling for tougher enforcement of immigration laws.  Whether it amounts to change we can believe in is, of course, a distinct question.   

September 22, 2009 in Criminal justice in the Obama Administration, Detailed sentencing data, Offense Characteristics, Who Sentences | Permalink | Comments (4) | TrackBack

Notable (and disturbing?) Third Circuit ruling on AEDPA and the Sixth Amendment

The Third Circuit has an interesting ruling today in a habeas case that, though not exactly about sentencing, seems certain to intrigue readers. The opinion in Thomas v. Carroll, No. 06-2282 (3d Cir. Sept. 22, 2009) (available here) gets started this way:

This appeal presents a factual scenario unique in our experience and a legal question for which we have found no precise precedent.

While Appellant Andre R. Thomas was serving a thirty-five year sentence in a Delaware penal institution, he punched a corrections officer and was subsequently indicted under Delaware law for assault.  Prior to trial, Thomas voluntarily and knowingly waived his right to counsel and was permitted to proceed pro se.  However, after the Delaware trial judge (Superior Court) declined to order the production of all the witnesses and documents that Thomas requested, Thomas refused to participate in the trial.  The case proceeded to jury selection and then trial without anyone representing the defense.  On several occasions, the trial judge provided Thomas with the opportunity to return to, and participate in, the proceedings, but he declined to do so.  Ultimately, he was convicted by a jury, sentenced to eight years additional imprisonment, and on direct appeal, the Delaware Supreme Court affirmed.

According to Thomas, his Sixth Amendment rights were violated because the Superior Court conducted the trial without anyone present for the defense.  If we were writing on a blank slate, we might agree with Thomas that a trial under those circumstances is inconsistent with the fair trial requirement of the Sixth Amendment.  However, this case comes to us on Thomas’ petition for a writ of habeas corpus and our inquiry is limited under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d).  Here, the Delaware courts’ conclusion that Thomas’ Sixth Amendment rights were not violated was not contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court.  Therefore, we will affirm the District Court’s denial of his petition.

Judge Pollak, sitting by designation, has an intriguing little concurrence in which he observes that, as a result of AEDPA, "there is now no available judicial mechanism for remedying the deficiency that has resulted in what I deem to be a constitutionally flawed conviction and resultant sentence."  That would seem to be a disturbing reality (and thus prompts this adjective in my post title), unless one concludes that Congress via AEDPA was content to allow some constitutionally flawed state convictions to be beyond the remedial reach of federal habeas courts.

September 22, 2009 in Sentences Reconsidered, Who Sentences | Permalink | Comments (29) | TrackBack

States continuing to consider prisoner release to deal with budget woes

The economic realities of mass incarceration continue to impact state budgets and political debates, as evidenced today by this local feature out of Illinois headlined "Quinn's plan to release prisoners stirs debate." Here are the basics:

There are still a lot of questions about Gov. Pat Quinn's plan to release about 1,000 prisoners to ease overcrowding and help with the state's budget crisis.  Prison reform advocates have been saying it for many years: that states could save billions of dollars by treating instead of incarcerating drug users.  The message is finally hitting home in deficit-ravaged Illinois where the administration of Gov. Pat Quinn plans an early release for 1,000 state prison inmates....

Chicago Police Superintendent Jody Weis wishes there was no need for an early release program."From a law enforcement program, you'd always like to have people stay in jail to compete their sentences," said Weis.

But the Quinn administration — still unable to get a tax increase to offset a $10 billion deficit — says releasing non-violent inmates will save millions, pose no threat to law and order, and begin reform the criminal justice system. "We're not just going to use tax money to throw people in a warehouse and they commit more crimes," said Gov. Quinn.

There would be an initial release of 1,000 inmates, most non-violent drug possession offenders with less than one year remaining on their sentences.  Early parolees possibly would be required to live in their family homes with electronic monitors.

Meanwhile, as detailed in this Columbus Dispatch article, an effort in Ohio to patch a budget hole with gambling monies has run into legal troubles and is prompting renewed talk of prisoner releases as one alternative budget balm:

Not quite three months into the new two-year state budget cycle and already Gov. Ted Strickland and legislative leaders are facing the prospect of filling an $851 million funding shortfall. But so far, no one is offering solutions.

Strickland says he is not yet giving up on electronic slot machines. But if he cannot find another way to quickly get the machines at Ohio's seven racetracks, despite yesterday's Supreme Court ruling that the plan can be subjected to a ballot referendum in November 2010, tough decisions await....

In Illinois, the governor just announced that he would release 1,000 nonviolent prisoners, while Michigan has closed three prisons and the governor wants to speed up the possible parole of 12,000 inmates. California might release more than 20,000 prisoners, and Colorado is talking about letting 3,100 prisoners out early.

In Ohio, Senate Republicans nixed a proposed sentencing overhaul from Strickland that would have allowed most prisoners to get out early by earning up to five days of credit per month, saving $50 million over the biennium.

Some recent related posts:

September 22, 2009 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

"Plax prison touchdown"

The title of this post is the headline of this little article in today's New York Post.  Here are the basics:

Plaxico Burress is due to turn himself in at 9:30 a.m. today to begin a two-year prison term. The ex-Giant -- who shot himself in the thigh in a Midtown club last November -- pleaded guilty last month to attempted gun possession to avoid serving a mandatory three years if found guilty of possession.  He bought his gun legally in Florida but lacked a New York license.

His time behind bars could drop to 20 months with good behavior. But the self-inflicted wound cost him the $27 million left on his Giant contract.  And under NFL rules, he can't sign with any team until he's completed his term.

As regular readers know, I think the fact that Plax is willingly serving two years in prison for gun possession without even raising a Second Amendment claim is strong evidence that Heller is unlikely to mean much for most law enforcement purposes for quite some time.  Then again, maybe Delonte West is now poised to be a celebrity spokesperson for the Second Amendment.

Some related posts on the Burress cases:

UPDATE:  This New York Times article discusses today's events in state court in which Plaxico official received his two-year prison sentence

September 22, 2009 in Celebrity sentencings, Second Amendment issues | Permalink | Comments (3) | TrackBack

September 21, 2009

Federal stimulus money used to fund native american prison economy

I found this item in the New Mexico Independent quite intriguing as a sign of the economic times. The headline is "Feds release $82 million in stimulus for criminal justice for several pueblos, Navajo nation," and here is how the piece starts:

The U.S. Department of Justice announced Monday the award of $82.29 million in federal stimulus money for criminal justice initiatives in the Navajo Nation and several tribal jurisdictions throughout New Mexico.

The money will go toward everything from constructing and renovating prisons and jails and creating sexual offender registries to combating violence against women, according to a release from the U.S. Department.

Here is a link to the USDOJ press release.

September 21, 2009 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

"Dying in Vein: Is subjecting an inmate to a failed execution cruel and unusual punishment?"

The title of this post is the headline of this new piece appearing on-line at Newsweek.  Here is how it begins:

Can a vein save a convicted killer?  It the case of Romell Broom — it might. Broom was sentenced to death for raping and murdering 14-year-old Tryna Middleton on Sept. 21, 1984. Broom isn't supposed to be alive to witness the 25th anniversary of Middleton's death — but he is.  Last Tuesday, the execution team at the Southern Ohio Correctional Facility spent several hours trying unsuccessfully to find a viable vein for a lethal injection. Now, Ohio is faced with the difficult task of determining whether it can try to execute Broom a second time, after it botched the first attempt.

Related posts on botched Broom execution attempt:

September 21, 2009 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (11) | TrackBack

Posts of note from The BLT

These two posts from The BLT: The Blog of Legal Times tap into two very different issues that have long been of interest to me (and have been subject to lots of older and newer posts on this blog):

September 21, 2009 in Who Sentences | Permalink | Comments (0) | TrackBack

An international perspective on the right to remain silent

This article from New Zealand, which is headlined "Crime victims slam right to silence," provides an interesting international perspective on what is often viewed as a cherished American constitutional right.  Here are some highlights:

Crime victims want an end to defendants "hiding" behind the right to silence in court but civil rights experts and defence lawyers argue this would be a serious erosion of human rights.

Sensible Sentencing Trust spokesman Garth McVicar outlined a proposal to ditch defendants' right to silence when he headed up a high-profile conference at Taupo at the weekend. He said at present the law sheltered people accused of serious crimes including murder. "It doesn't mean defendants will be forced to talk it just means if they don't, juries can take it into account."

There were two murder trials involving Waikato people last week where defendants did not take the stand: Joshua Woodcock who was found guilty of the manslaughter of his baby daughter, and the three men found guilty of murdering Waharoa man Ollie Gage in a drive-by shooting.

The Sensible Sentencing Trust's lawyer, former ACT MP Stephen Franks, said New Zealand should follow Britain's lead in allowing police to advise defendants that their silence could be used against them, and in permitting juries to "draw a sensible inference". "There are occasionally valid reasons for invoking the right to silence but it has become part of the ritual game-playing by justice system insiders."

Police-rape complainant Louise Nicholas, who lost her own case but sparked a damning inquiry into police conduct, said the right to silence should be abolished. "Nine times out of 10, the defendant exercises his right to silence, but the victim has to take the stand and have her entire life raked over and her character put under the spotlight," she said.

But the call to remove defendants' right to silence was criticised by two senior Waikato defence lawyers.  Paul Mabey QC said a law change forcing defendants to take the stand would erode a fundamental legal right that the prosecution had to prove the guilt of the defendant. "The right to silence is fundamental and preserved in the Bill of Rights. It's consistent with the presumption of innocence, and no person must prove their innocence," Mr Mabey said.  Defendants "should not be forced to give evidence".... Philip Morgan QC described any push to end the right to silence as "just nonsense, really"....

Ms Collins told the conference: "Law-abiding New Zealanders are sick and tired of seeing their rights eroded and, in many cases, ignored in favour of the rights of criminals. This Government is not standing for that."

Shrewd readers likely know that the US Supreme Court had an interesting discussion of the sentencing aspects of "right to silence" issues in its 1999 ruling in Mitchell v. United States (available here).

September 21, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

A (questionable?) Eighth Circuit reversal of a reduction in crack guideline retroactivity case

The implementation of the retroactive crack guidelines has produced a lot of federal circuit court rulings, though most have involved a circuit affirming a district court's decision to deny a reduction to a defendant.  But the Eighth Circuit has a ruling today in US v. Collier, No. 08-3306 (8th Cir. Sept. 21, 2009) (available here), in which a panel, upon the  government's appeal reverses a district court's decision to grant the defendant a sentencereduction based on the crack retroactivity provisions.

The particulars of Collier are complicated, but the case especially draws my attention because it would seem ripe for a viable cert petition because the defendant (a) seems relatively sympathetic, (b) prevailed in the district court by getting a lower sentence, and (c) had his reduced sentenced reversed by the Eighth Circuit upon the government's appeal.  As some astute readers may realize, this "abc formula" produced cert grants in Claiborne and Gall and Spears, and perhaps Collier might file a petition to see if he can get the formula to work for him as well.

September 21, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (9) | TrackBack

A timely examination of data and integration amidst California's corrections craziness

Professor W. David Ball has recently put up on SSRN on this timely analysisof California's sentencing and corrections challenges, which is titled "E Pluribus Unum: Data and Operations Integration in the California Criminal Justice System."  Here is the abstract:

The Stanford Criminal Justice Center (SCJC) recently completed a series of Executive Sessions with state and local officials about integrated criminal justice in California, exploring the ways in which the hundreds of disparate criminal justice agencies across the state might share information and coordinate activity, cooperating across jurisdictional and agency lines to promote common public safety goals.  An integrated criminal justice system, one where information is readily available to agencies when they need it, has several potential advantages: it can promote more efficient use of resources by avoiding duplication of effort; provide greater transparency to policymakers, regulatory agencies, and the public; and produce the evidence necessary to illustrate ways in which existing policies can be improved.

While integration is a crucial part of the future of criminal justice, integration itself is an increasingly important issue in its own right, particularly as governments tackle complex problems that do not confine themselves to particular geographic or jurisdictional areas (e.g. environmental pollution).  As with criminal justice, tackling these problems also requires massive amounts of information and inter-agency and inter-jurisdictional coordination.  Some lessons from the integrated criminal justice context might be relevant here: the importance of agreeing on common metrics, the challenge of getting individual agencies to think about how their information and interventions might be reused, and the importance of ensuring that any proposed changes take ordinary business practices into account. Integrated criminal justice can, at a minimum, illustrate the issues that are likely to arise.

Some recent posts on related issues in California and elsewhere:

September 21, 2009 in Data on sentencing, Detailed sentencing data, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

Are there reliable data on the efficacy of chemical castration?

This question in the title of this post is prompted by this interesting new piece out of Australia, which discusses the idea of chemical castration for certain sex offenders.  Here excerpts from the piece:

A recent spate of stories about sex offenders has put chemical castration back in the spotlight, sparking ethical concerns and warnings about its effectiveness.

The group of drugs used for chemical castration stops the actions of sex hormones by blocking testosterone, which underlies sexual impulses and sexual feelings. With reduced libidos, the aim is to reduce the impulse of convicted rapists, molesters and paedophiles to offend again.

But Queensland Council of Civil Liberties president Michael Cope considers chemical castration a human rights abuse, no matter how serious the offender in question is. "We consider it to be cruel and inhumane and it's like the death penalty, as subsequently if somebody's found out to be innocent you can't take it back," he told ABC News Online.

Mr Cope says the whole idea of chemical castration — which has been used across Australia and the world for decades — is based on the wrong premise. "It's not directed at what sex offences are actually about — which is power — which is what most people accept these days. Castrating people and trying to remove their urge is not the answer to it," he said....

But the Royal Australian and New Zealand College of Psychiatrists president-elect, Louise Newman, believes chemical castration, which works as long as the patient stays on the medication, should be considered for the more "hard core" sexual offenders.

"It's certainly not a cure or a way of reducing all risk, but it might be seen as a useful component of treatment or management for some of these very difficult cases, where we're unlikely to see response to other methods," Professor Newman told ABC News Online. "They're not commonly used at all and they are not needed other than in the fairly difficult group of very severe offenders."

This kind of story drive me crazy, because it does not tell me what I really want to know — the article reports that chemical castration "has been used across Australia and the world for decades," but it does not have any discussion how effective this alternative sentence has been.

September 21, 2009 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

September 20, 2009

Looking at Lawrence as an Eighth Amendment case

Thanks to this post at CrimProf, I just noticed this intriguing piece by Sheldon Bernard Lyke on SSRN, which is titled "Lawrence as an Eighth Amendment Case: Sodomy and the Evolving Standards of Decency." Here is the abstract:

This Article offers an alternate reading of Lawrence v. Texas, the 2003 U.S. Supreme Court case that struck down the Texas sodomy statute that criminalized private, consensual, and adult same-sex intercourse.  While most scholars discuss Lawrence as a substantive due process case and struggle to find meaning in the ambiguity of the decision’s language, I propose that Lawrence is better read as an Eighth Amendment case.  This Article argues that the majority opinion analyzed the constitutionality of the Texas sodomy law as it would analyze the cruelty and unusualness of a criminal law in an Eighth Amendment evolving standards of decency case.  The Lawrence Court not only used objective indicators to find a U.S. consensus against sodomy laws but was also cognizant of foreign nations that refused to criminalize sodomy.  Additionally, I suggest that the Eighth Amendment and the evolving standards of decency were on the minds of the Justices when deciding Lawrence, and at a minimum, the case was decided in the amendment’s shadow.  The Justices were exposed to an evolving standards of decency analysis in both written briefs and oral arguments, and the majority opinion used language evocative of emergence and evolution. I discuss the importance of this alternative reading of Lawrence and begin a conversation on the possibilities of extending an evolving standard of decency analysis to issues other than sodomy and areas beyond criminal law.

Of course, the Eighth Amendment's actual textual prohibition on the infliction og "cruel and unusual punishments" says nothing expressly about so-called evolving standard of decency.  But, ever since the Surpeme Court coined this felicitious phrase in Trop v. Dulles, this concepts has had a prominent place in Eighth Amendment jurisprudence.

September 20, 2009 in Sentences Reconsidered | Permalink | Comments (7) | TrackBack

Reflective commentaries in the wake of Garrido's crimes

The San Francisco Chronicle today has these two very different commentaries discussing how the California and other jurisdictions ought to react to the Garrido case:

September 20, 2009 in Sex Offender Sentencing | Permalink | Comments (2) | TrackBack