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January 31, 2009

Louisiana Governor proposes taking sex offender mania to new heights

It is both noteworthy and worrisome that Louisiana Governor Bobby Jindal, who is viewed by everyone as a rising star in the Republican party, has decided to propose legislation that would take the manic panic about sex offenders to new heights.  This local story provides the basic details:

If a day care owner knowingly allows a registered sex offender to come onto the facility's property, that owner could be charged with a crime and face prison time, according to a proposed law by Gov. Bobby Jindal.

The proposal was among several pieces of suggested sex crime legislation Jindal announced Thursday at the Caddo Parish Correctional Center. "This will resonate with the people here," Jindal said. His words came about a month after a local day care owner's son, a registered sex offender, was arrested after being accused of sex crimes with children at the facility.

Rodney Chism, son of Katherine Robbins, owner of the Smart Start Learning Center Express in Caddo Parish, was arrested in December on two counts of juvenile molestation. Robbins, who allegedly knew her son was a sex offender, could only be charged with perjury because there are no existing laws criminalizing such scenarios. The day care center was closed after authorities with the state Department of Social Services said Robbins had not performed adequate background checks on her employees.

Other proposals listed by the governor would strengthen many existing sex offender laws, such as making some of the most violent sex offenders submit to psychiatric evaluation after their prison and parole terms end. If a psychiatric evaluator determined the offender was likely to commit a crime again, the change would mean a district attorney could request indefinite, forced evaluation of that person until he or she was deemed to be no longer a threat.

This story provides yet another example of the one-way ratchet of criminal laws and the potential harm of legislative reactions to one awful crime.  Unless very carefully crafted and limited, a law making it a felony for a day care owner to even allow any registered sex offender to come onto the facility's property could (and likely would) have a lot of unforeseen consequences for both day care operators and families.  Especially since residency restrictions, and GPS tracking, and laws criminalizing a failure to register as a sex offender have had a variety of unexpected and negative consequences, I hope Bobby Jindal and his team have really thought through all the potential ramifications of what he is proposing here.

January 31, 2009 in Sex Offender Sentencing | Permalink | Comments (24) | TrackBack

What could be the impact of another Democratic president having a brother problem?

President Jimmy Carter had problems with Billy Carter.  President Bill Clinton had problems with Roger Clinton.  And now, as detailed in this CNN article, it appears that President Barack Obama may have problems with George Obama:

George Obama, the half brother of U.S. President Barack Obama, has been arrested by Kenyan police on a charge of possession of marijuana, police said Saturday.  Inspector Augustine Mutembei, the officer in charge, said Obama was arrested on charges of possession of cannabis, known in Kenya as Bhang, and resisting arrest. He is scheduled to appear in court Monday, Mutembei said....

CNN Correspondent David McKenzie talked with George Obama at the jail where he is being held. Speaking from behind bars, Obama denied the allegations. "They took me from my home," he said, "I don't know why they are charging me."

George Obama and the president barely know each other, though they have met before.  George Obama was one of the president's few close relatives who did not go to the inauguration in Washington last week. In his memoir, "Dreams from My Father," Barack Obama describes meeting George as a "painful affair."

For a variety of reasons, the arrest of George Obama in Kenya on drug charges is more likely to be a media-driven distraction than the basis for serious discussion of drug crimes and international law.  However, I cannot help but speculate and fear that this news could somehow influence whether and how the Obama Administration moves forward anytime soon on drug policy reforms or other hot-button criminal justice issues.

January 31, 2009 in Drug Offense Sentencing | Permalink | Comments (5) | TrackBack

January 30, 2009

Off-line while participating in Stanford Law Review symposium about media

Ironically, I may be off-line and unable to comment on media, justice and the law for a little while because I am participating the Stanford Law Review's symposium on "Media, Justice, and the Law."  The details of the event are here and here.  All of the papers written for the event are really interesting; I am looking forward to an exciting event and I think a webcast should be available here.

January 30, 2009 in On blogging | Permalink | Comments (4) | TrackBack

Another potent sentencing dissent from the Sixth Circuit's Judge Merritt

Sixth Circuit Judge Gil Merritt should be known as the great sentencing dissenter because he continues to speak forcefully in dissent about the long sentences being affirmed by his colleagues. Today's potent sentencing dissent comes in US v. Young, No. 07-5600 (6th Cir. Jan. 30, 2009) (available here), and it includes a notable prediction about future SCOTUS consideration of acquitted conduct enhancements:

The two first offenders here grew and distributed marijuana off and on over several years and were sentenced to 17 years and 19 years respectively.  In my view this sentence is too long and serves no rational penal purpose.  It is much greater than necessary to adequately deter marijuana growing and distribution.  I would reverse and remand for a further explanation of why such a long sentence is justified, especially in light of the great disparity in sentencing for such relatively minor marijuana crimes between the state and federal courts and among federal judges themselves. These defendants will be over 70 years old when they get out of jail, if they live that long.  The cost of their incarceration, including health care, will be enormous.  The sentences seem irrational to me — too irrational for me to defer.

For reasons stated in my dissenting opinion in United States v. White, No. 05- 6596 (6th Cir. Dec. 24, 2008 (en banc)), I do not agree with the holdings and reasonings of Sections II.D and II.E of the majority opinion upholding the use of acquitted conduct and the judge-found, offense-conduct facts regarding the leadership enhancement.  These sentencing enhancements are unconstitutional in my view.  Although I concur that we must defer to the majority opinion in United States v. White, it is not final for all purposes and is likely to be reversed by the Supreme Court.  These two enhancements are the basis for the long sentences and are inconsistent with the right of trial by jury under the Sixth Amendment, as I explained in White.  Counsel for the defendants should keep the cases open until we find out what happens to the White case in the Supreme Court.

As a critic of acquitted conduct enhancement (and as an amici in White), I sure hope Judge Merritt is looking into an accurate crystal ball when he makes the bold prediction that "White ... is likely to be reversed by the Supreme Court."  At this point, I will be excited if the Supreme Court even takes up White, since it has rejected cert petitions in a number of notable acquitted conduct cases in the past.

January 30, 2009 in Drug Offense Sentencing | Permalink | Comments (16) | TrackBack

Six-month federal sentence for Elliot Spitzer's "hooker booker"

Local news stories here and here report on the sentencing of a young woman involved in booking hook ups for the prostitution ring that former New York Governor Elliot Spitzer frequented.  Here are basic details from the NY Daily News:

The woman who ran Eliot Spitzer's favorite call-girl ring got six months in prison Thursday from a judge who cited her mentor's tight control over her.  Manhattan Federal Judge Barbara Jones rejected prosecutors' recommendation of a 21-to-27 month sentence for Cecil (Katie) Suwal, citing the Svengali-like power Emperors Club VIP boss Mark Brener once had over the 24-year-old.

A regular reader sent me this reaction to the sentence via e-mail:

This call girl was prosecuted in a federal case, if you can believe it.... The ignobility of it all...that Eliot Spitzer should escape prosecution, but this woman didn't...it boggles the female mind.

January 30, 2009 in Celebrity sentencings | Permalink | Comments (7) | TrackBack

"Our Existential Death Penalty: Judges, Jurors, and Terror Management"

The title of this post is the title of this new article appealing in the journal titled Law & Psychology Review and available via SSRN.  Here is the abstract:

Cultural anthropologist Ernest Becker explored the impacts of the subconscious fear of death upon humans.  In recent years, experimental psychologists have conducted studies related to Becker's theories.  This "terror management theory" research has found that human beings become more punitive and hostile toward other groups when they are reminded of their own mortality.  For example, in one study of municipal judges, the judges who were reminded of death set an average bond of $455 in a fictional case, while judges in the control group who were not reminded of their mortality set an average bond of $50 for the same case.  This study, and others like it, provides significant lessons for the legal system, especially in cases involving death.

This Article begins with a brief introduction into the existential theories about the fear of death discussed by Ernest Becker and others, and then it provides an overview of the recent empirical terror management theory research.  The following sections give a brief overview of the capital punishment system and discuss how the terror management studies explain several inherent problems with the capital punishment system.  These theories and experiments provide an important understanding of the subconscious influences upon jurors and upon other participants in the legal system such as judges, attorneys, and defendants.  For example, terror management theory helps explain why death-qualified jurors are more punitive.  The article concludes by explaining how attorneys and judges should work to lessen the death denial influences in capital cases because these existential influences contribute to the arbitrariness of the application of the death penalty. In addition to providing advice for capital defense attorneys, prosecutors and judges, the article proposes areas of further study for experimental existential psychologists.  The conclusion appeals for more education in the legal community and for further interdisciplinary study in the scientific community.

January 30, 2009 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Should we consider military service as an alternative to incarceration?

The Fall 2008 issue of the Justice Policy Journal includes this interesting article titled simply "Alternatives to Incarceration."  However, as this abstract reveals, the piece is focused on one particularly interesting alternative:

While previous research has sought to evaluate prisoners’ perceptions of various alternatives to imprisonment, most have centered on the prisoners perspective as to the perceived severity of the alternative punishment.  This research is quite different, as the proposed alternative does not seek to punish but rather to rehabilitate.  The proposed alternative argues that military enlistment be utilized as an alternative to incarceration we intend to determine if prisoners would welcome such an alternative.  Researchers have identified a correlation between military service and desistance from crime among youths, many of whom have had delinquent pasts.  This current project is intended to expand upon the life course perspective as the military can act as a “rehabilitative agent” which will act as a hook for change, thereby facilitating desistance from criminal behavior.

In the current study, we argue that military service can facilitate social bonds, promote prosocial network contacts, and teach skills necessary for successful integration into the dominant society.  Because of the benefits military service offers, it is hypothesized that prisoners will be receptive to such an alternative to incarceration.  Through our interviews with prisoners at a minimum security facility in Kentucky, we discovered that indeed prisoners overwhelmingly would welcome such an alternative.

UPDATE:  A terrific former student sent me this e-mail noting that there is historical precedent for military service as an alternative punishment:

One of the ways of avoiding a sentence of death during the middle ages was to accept a pardon from the King for service in the army for a year.  “The terms were readily accepted, and the King increased his force by a number of men who would perhaps be inferior to none in courage, though they might not improve the discipline of the army.”  Stanley Grupp, Some Historical Aspects of the Pardon in England, 7 Am. J.L. Hist. 51, 55 (1963).

January 30, 2009 in Criminal Sentences Alternatives | Permalink | Comments (5) | TrackBack

Lots of strong SORNA analysis...

in a series of strong posts at Sex Crimes:

January 30, 2009 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

A call for more sentencing rationality in Florida

A helpful reader pointed me to this interesting artice from the latest Florida Bar Journal, titled "Unhandcuffing Justice: Proposals to Return Rationality to Criminal Sentencing."  Though the piece brings the most sunshine to sentencing laws and practices in the Sunshine State, it covers topics arising in every jurisdiction.  Here are snippets:

Americans love to be number one.  Unfortunately, we are now tops in two negative areas: debt and prisons....

[O]ur nation imprisons more people per capita than any other nation. Florida is leading this trend with the fastest growth of any state. A recent Pew Report noted that Florida “will run out of prison capacity by early 2009 and will need to add another 16,500 beds to keep pace.” With $65,000 per bed “as the best approximation for a typical medium security facility” and $19,308 per year for each Florida inmate, Florida must raise taxes, cut programs, or finance this $1.1 billion in initial capital costs plus an additional $314 million in annual recurring costs....

Our current approach to criminal justice sentencing is not only fiscally irresponsible — it is morally questionable.  This approach will result in a continuing, chronic economic crisis.

January 30, 2009 in Scope of Imprisonment | Permalink | Comments (3) | TrackBack

January 29, 2009

Historical evidence that it is NOT too early to start demanding clemencies from President Obama

Over at the Pardon Power, P.S. Ruckman has two amazing posts here and here detailing for all the Presidents "the number of days between inauguration or the assumption of office (via death or resignation) and their very first pardon as President of the United States."  The data show that President Obama is already on the verge of being behind the historical curve: roughly half of all Presidents granted their first pardons within their first two weeks in office

Of course, 100 days is a widely-used marker for the Presidential honeymoon, and the data show that all but eight Presidents granted clemency within the first 100 days.  Disappointingly, even as the federal criminal justice system has grown enormously over the last two decade, three presidents who have been among the slowest in using this power of mercy were President Clinton and both Presidents Bush.  So much for feeling others pain or 1000 points of light or compassionate conservatism from the recent residents on the Oval Office.

As I have suggested before and will say again and again, I will only be a true believer in "hope" and "change" if and when President Obama changes the ugly realities that now surround clemency by starting to use the power to remedy true federal criminal injustices as the Framers intended.

Some recent related posts:

January 29, 2009 in Clemency and Pardons | Permalink | Comments (8) | TrackBack

Better off dead?

The potential consequences of severe residency restrictions for sex offenders is highlighted by this news story out of Michigan, headlined "Man found dead in cold was turned away from shelters in past because he was sex offender."  Here are the basics:

A man found dead on the streets Monday had tried in recent weeks to gain admittance to at least one of two Heartside missions, but was denied a bed because he is a registered sex offender.

Officials say its possible Thomas Pauli might be alive today except for a state law prohibiting him from establishing a residence even for one night within 1,000 feet of a school, in this case, Catholic Central High, also located in the Heartside district.

[Mission directors] decried a system where there are no exceptions to the so-called Megan's Law, which sets boundaries and restrictions for those on the list. "We have to follow the law, but ethically, it feels like were responsible," said [Bill] Merchut.  Added [Bill] Shaffer, "These men and women are clearly 'The Scarlet Letter' folks of our day. And where do they go? I have no answer."

Pauli, 52, served 11 years in prison for a 1991 conviction in Grand Traverse County for second-degree criminal sexual conduct, state records show.  He was released in 2003 and was required to register as a sex offender.

This related commentary raises all the important questions in the wake of this tragedy:

So is this what it finally takes for us to hear the muffled cries of the homeless -- an ex-con dead in the snow because it's against the law for a sex offender to huddle up at either of two Grand Rapids missions?

Thomas Pauli didn't choose to die alone in the cold.  He apparently froze to death because of a crime he committed nearly 20 years ago, and a law that's dogged him ever since his release from prison.

January 29, 2009 in Sex Offender Sentencing | Permalink | Comments (15) | TrackBack

Execution news and notes from Japan and Texas

This morning brings executions news from both the national and international new desks.

From the AP, "Texas executes former security guard for killing four":

Texas executed a former Houston security guard Wednesday for gunning down four people, including his ex-girlfriend and her two small children, during an October 1996 shooting frenzy.  Virgil Martinez, 41, was condemned for killing 27-year-old Veronica Fuentes; her children, 5-year-old Joshua and 3-year-old Casandra; and an 18-year-old neighbor, John Gomez, in Alvin, just south of Houston.

Martinez was the fourth Texas inmate executed this year and the first of two on consecutive nights this week in the nation's most active death penalty state.

From CNN, "Japan executes four death-row inmates":

Japan executed four convicted killers on death row on Thursday, the government said, marking the first set of executions in the country since October 2008.

All four men were hanged, Japan's primary method of execution, the Justice Ministry said.  The ministry identified the inmates as: 58-year-old Tadashi Makino, convicted of murdering four women in separate home invasion robberies; 44-year-old Yukinari Kawamura and 39-year-old Tetsuya Sato, both convicted of killing two women and burning their bodies in steel barrels; and 32-year-old Shojiro Nishimoto, convicted of murdering four people in separate home invasion robberies....

Japan executed 15 inmates in 2008 and 95 inmates currently sit on Japan's death row.  Japan's rate of executions since August 2007 has been approximately one execution every two to three months.

January 29, 2009 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Dutch white-collar sentencing in accounting fraud show continental contrast

In China, corrupt executives can get the death penalty, and decades of prison time were handed out to CEOs convicted of fruad like Bernie Ebbers and Jeff Skilling.  But, as this Reuters story indicates, sentencing outcomes are much different on the continent:

The Amsterdam appeals court sentenced three former executives of Dutch supermarket group Ahold on Wednesday to suspended sentences and fines over an accountancy fraud revealed by the company in 2003. In the Netherlands' biggest ever corporate accountancy fraud, Ahold had revealed massive bookkeeping irregularities at its U.S. Foodservice business and other foreign subsidiaries, overstating profits by almost 1 billion euros ($1.3 billion).

Former Chief Executive Cees van der Hoeven was sentenced by an Amsterdam appeals court to pay a fine of 30,000 euros, while former Chief Financial Officer Michiel Meurs was given 240 hours of community labour, a fine of 100,000 euros and a six-month suspended sentence. Former management board member Jan Andreae was given a three-month suspended sentence and a fine of 50,000 euros.

As this AP account explains, the appeals court ruling here involved cutting the (slightly) more onerous sentence that had been handed out by the trial court.

January 29, 2009 in Sentencing around the world, White-collar sentencing | Permalink | Comments (4) | TrackBack

January 28, 2009

The state of cost problems in the states of prison nation

16866_SOTSCover Now available here via Stateline.org is an effective article about state struggles with prison costs appearing in the  "State of the States 2009" publication put together by the folks at The Pew Center on the States.  The piece is titled "Strapped states eye prison savings" and here are a few choice snippets:

Faced with a surging prison population and a state budget more than $1 billion in the red, Gov. Steve Beshear and Kentucky lawmakers last year took a dramatic step that they hoped would save $30 million over two years: granting early release to more than 1,800 inmates, including some felons convicted of murder, rape and other violent crimes.

Kentucky’s prisoner release plan, which touched off a political firestorm and prompted a court challenge from the state’s attorney general — like Beshear, a Democrat — is an example of the difficult criminal justice decisions some states could face this year.

From California to Connecticut, states are under mounting pressure to bring corrections spending in line with the reality of gaping budget shortfalls. Lawmakers in some states are slashing prisoner rehabilitation programs, releasing inmates early or packing them more tightly into crowded facilities to save money. Others are using technology, such as satellite tracking, to monitor sex offenders, drunken drivers and other criminals instead of keeping them behind bars. To avoid building new prisons, many states ship inmates to private facilities that often are thousands of miles away.

Other states are exploring long-term strategies aimed at preventing recidivism, a leading factor behind overcrowded prisons and jails — and rising costs.  At any given time, more than 2.3 million people are locked up in federal, state and local facilities in the United States, and more than half of those released from prison are back behind bars within three years, according to the federal Bureau of Justice Statistics....

Nationally, corrections trails only health care, education and transportation in consuming state dollars. Prison spending increased 127 percent from 1987 to 2007, and at least five states — Connecticut, Delaware, Michigan, Oregon and Vermont — now spend as much or more on corrections as they do on higher education, according to the National Association of State Budget Officers and the Public Safety Performance Project.

The statistics are alarming state lawmakers in all regions of the country and, increasingly, on both sides of the political aisle. Criminal justice reform — for years a controversial issue for legislators wary of being labeled “soft on crime” — is finding new proponents as public officials seek ways to save money.  But a single strategy to tackle incarceration costs has yet to emerge, and some critics say state policymakers are dragging their feet and avoiding comprehensive changes that have become necessary.

Regular readers know that I have been following this story for years and the cost of sentencing toughness are coming due.  Here are links to prior posts covering these issues in particular states:

January 28, 2009 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Seventh Circuit finds top-of-range guideline sentence procedurally(?) unreasonable

Tucked into the back of a long opinion from the Seventh Circuit yesterday is a little sentencing talk that shows that at least one circuit is not always going to rubber-stamp district court rulings when conducting reasonableness review.  The opinion in US v. Williams, No. 07-1573 (7th Cir. Jan. 27, 2009) (available here), rejects lots of arguments from lots of co-defendants, but "vacate[s] Clinton Williams’s sentence because the record does not demonstrate that the district court considered his mental disability as a mitigating factor."  Here are some snippets from the panel's sentencing discussion (with cites omitted):

Section 3553(a) directs a district court to consider the history and characteristics of the defendant among the factors it weighs in determining a reasonable sentence.  We have held that while a "district court may pass over in silence frivolous arguments for leniency,” where a defendant presents an argument that is “not so weak as not to merit discussion,” a court is required to explain its reason for rejecting that argument....

There are two problems with the district court’s analysis.... [First,] the court’s observation that Clinton Williams was exaggerating his mental and intellectual disabilities is not dispositive of whether he was mentally disabled or whether his actual disability justified a lower sentence....

Second, the district court did not take into account the combination of Clinton Williams’s diminished capacity along with the fact that the ringleader was his brother, and the exacerbating effect that might have on his ability to think for himself.  We remand Williams’s case and on remand, the district court should consider his actual disability and the combination of his disability with his susceptibility to manipulation by his brother Brad.

Though styled as a conclusion that the district court erred procedurally by failing to explain how it considered the defendants arguments for a lower sentence, the panel decision here feel more like a reversal based on substantive unreasonableness.  Thanks to applicable mandatory minimums, the defendant faced a guideline range of roughly 43 to 46 years(!) in prison, and the sentencing judge impose a top-of-the-range sentence of 46 years. In its discussion, the panel notes at length the extent of Clinton Williams's disability history and indirectly suggests that 46 years seems extreme under the circumstances. 

Though we have had four years of reasonableness review since Booker was handed down, there still has been just a single sentence reversed as substantively unreasonable.  This Williams rulings gets close, but does not quite make number two.  Still, it is nice to see a circuit enforcing seriously the duty of explanation that should be inherent in reasonableness review.

January 28, 2009 in Booker in the Circuits, Offender Characteristics | Permalink | Comments (5) | TrackBack

Eric Holder on track to be next U.S. Attorney General

This AP story provides the latest news on the path toward a new U.S. Attorney General:

Senate Republicans, who acted like lions in challenging Eric Holder, turned into lambs Wednesday as they joined Democrats in recommending President Barack Obama's choice for attorney general.

The Judiciary Committee voted 17-2 to endorse Holder, with two Republicans opposing the nomination — John Cornyn of Texas and Tom Coburn of Oklahoma.  The Senate could vote as early as Thursday to confirm Holder as the first African-American to lead the Justice Department.

Some posts on the Holder pick for Attorney General:

January 28, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (0) | TrackBack

Two intriguing sentencing stories show the impact of cable TV on federal justice

Two new local stories about two very different federal prosecutions have one notable link: cable TV shows seemed to have had an the operation of the federal criminal justice system in both cases.

First, consider this Tennessee story, headlined "Moonshine maestro gets 18 months."  Here are some of the cable-influenced details:

A federal judge sentenced Marvin “Popcorn” Sutton to 18 months in prison on moonshining and weapons charges Monday, rejecting arguments that Sutton deserved a sentence of probation because he had reformed and was too ill to serve prison time....

Sutton has a broad circle of supporters, and nearly 1,500 people signing petitions of leniency on his behalf.  He gained fame through a book he wrote called “Me and My Likker,” as well as through Internet videos and cable TV documentaries in which he demonstrated how to make moonshine.

That notoriety may have harmed him in the sentencing hearing. Assistant U.S. Attorney Robert Reeves introduced several of the videos as evidence Monday, claiming they showed Sutton “flaunted criminal activity.”  The judge appeared to agree. “Your moonshining is a violation of the law,” [the judge] told Sutton. “I don't care how it is glamorized on the History Channel or the Discovery Channel.”

Second, consider this Connecticut story, headlined " Child porn purveyor fights prison sentence."  Here are some of the cable-influenced details:

A man who was sentenced to more than three years in federal prison for possessing child pornography after a state judge gave him probation for possessing the same material is fighting the federal sentence — unsuccessfully so far....  [Defendant Edward] Burke pleaded guilty in October 2007 to a federal charge of possessing child pornography, which would have been extremely difficult for his lawyers to defend against at trial because he had pleaded guilty to the same conduct in Hartford Superior Court.

The federal prosecution began after the Journal Inquirerreported on Burke’s sentence of probation at the state level, imposed in October 2006 by Judge Thomas P. Miano in Hartford Superior Court. Miano put Burke on probation for five years, with 10 years of potential prison time hanging over his head if he violated court-ordered conditions.  The hundreds of images of child pornography found on Burke’s computer included sexual abuse of toddlers and the bondage and rape of prepubescent girls, authorities have said.

Heather Nann Collins, then a JIreporter, appeared on Cable News Network’s Nancy Grace show to discuss the case.  During the show, Grace said, as if speaking to Miano, “You are in contempt.”  Burke’s lawyers argued in court papers that the federal prosecution was “unduly influenced” by Grace’s attack on Miano.

January 28, 2009 in Booker in district courts | Permalink | Comments (2) | TrackBack

Can we effectively test capital deterrence in Maryland and Virginia now?

Whether the death penalty deters murders is an important and always controversial topic.  I tend to assume we will never know for sure and/or that the answer varies based on array of non-legal factors that cannot be effectively measured or modified.  That all said, the recent death penalty news in the vicinity of the nation's capital has me wondering if a terrific capital deterrence case-study is being created.

Specifically, consider this Washington Post report on recent capital debate headlined, "Maryland & Virginia Go Separate Ways On Death Penalty":

In both states, moves are afoot to make big changes in death penalty law. As the states' stereotypes would have it, Virginia is considering expanding use of capital punishment, while Gov. Martin O'Malley is stepping out to press Maryland to end its use of the ultimate sentence.

The Virginia efforts are an annual affair, a move, mainly by Republicans, to widen use of the death penalty to cover accomplices in murder cases. The state's current "triggerman" law limits executions to those who actually commit the deed, rather than those who may have conspired with or helped the killer....

Across the Potomac ... O'Malley has moved sharply away from his earlier reticence about translating his personal opposition to the death penalty into state policy.

So, in the same region, we have one state making news by talking about expanding the death penalty and another state making news about eliminating the death penalty.  (Squeezed in between is DC, which does not have the death penalty, though its entirely urban landscape keeps it from being an effective comparison to the somewhat more comparable states of Maryland and Virginia.)

Someone who does serious social science research likely would tell me that a host of factors may (or many not) prevent Maryland and Virginia from being good modern subjects for analysis of the classic capital deterrence question.  But, until I hear otherwise, I do think I am going to be keeping an extra eye focused on the homicide rates in these two jurisdictions.

January 28, 2009 in Death Penalty Reforms | Permalink | Comments (4) | TrackBack

January 27, 2009

Strong sentencing opinion noting disparities in federal child porn downloading cases

Regular readers know I have blogged a lot about the disparity I keep seeing in the ways in which child porn downloading cases are being prosecuted and sentenced in federal courts.  And, thanks to a helpful readers, I just learned about an sentencing opinion issued last month in US v. Stern, No. 5:07-CR-00524 (N.D. Ohio Dec. 17, 2008) (available for download below), that notes this reality while quoting some of my blogging on this topic.  Stern is a terrific opinion for lots of reasons, but you can understand my special affinity for these passages toward the end of the opinion:

The Court has carefully considered an extremely wide variety of opinions from across the country as well as the National Guideline Statistics.  The Court is deeply troubled by its findings: “anyone seriously concerned about federal sentencing disparities [must begin by] taking a very close look at federal child porn cases.” Professor Douglas A. Berman, Is There an Ivy-Leaguer Exception to Federal Child Porn Charges?(October 22, 2008), on-line at http:// sentencing.typepad.com.  Based on the Court’s review of the case law, it is clear that “one would be hard pressed to find a consistent set of principles to explain exactly why some federal child porn defendants face decades in federal prison, some face many years in federal prison, while others only end up facing months.” Id.  This Court is “struck by the inconsistency in the way apparently similar cases are charged and sentenced.” Goldberg, 2008 U.S. Dist. LEXIS 35723, at *5-6 (considering nearly two-dozen cases).

In short, the national sentencing landscape presents a picture of injustice. In the absence of coherent and defensible Guidelines, district courts are left without a meaningful baseline from which they can apply sentencing principles.  The resulting vacuum has created a sentencing procedure that sometimes can appear to reflect the policy views of a given court rather than the application of a coherent set of principles to an individual situation.  Individual criminal sentences are not the proper forum for an expansive dialogue about the principles of criminal justice.  Such conversation, though vital, should not take place here – lives are altered each and every time a district court issues a sentence: this is not a theoretical exercise. Yet, this Court is mindful of the appropriate scope of its authority – it must take the law as it finds it.

The Court, accordingly, has attempted to ensure that its sentence avoids unwarranted sentencing disparities to the greatest degree possible while still hewing to its view that this individual defendant must be punished with a term of imprisonment.

Download Stern child porn sentencing

Some related recent federal child porn prosecution and sentencing posts:

January 27, 2009 in Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Another former AIG executive gets serious prison time, but also a serious variance

This Rueters piece provides the basics on a notable white-collar sentence handed down today:

A former executive at American International Group Inc was sentenced to four years in prison on Tuesday for his role in a reinsurance deal that prosecutors said misled AIG investors. Christian Milton, a former AIG vice president of reinsurance, and four former executives at Berkshire Hathaway Inc's General Re Corp business were found guilty last February of conspiracy and fraud....

According to sentencing guidelines, Judge Christopher Droney of U.S. District Court in Hartford, Connecticut, could have sentenced Milton, of Wynnewood, Pennsylvania, to as much as 210 years in prison.

Ronald Ferguson, General Re's former chief executive, was sentenced to two years in prison last month in the same case.

Additional details about the case and the sentencing can be found from the AP and Bloomberg.  None of the media accounts effectively detail exactly how the guidelines and the 3553(a) factors were utilized, but I think I am on solid ground when I conclude that the defendant here got the benefit of a big-time variance.

January 27, 2009 in White-collar sentencing | Permalink | Comments (2) | TrackBack

New (award-winnning) ABA Journal essay on the problems of mass incarceration

I am pleased to learn and to report that this new essay about the problems of mass incarceration appears in the February 2009 ABA Journal after having been "selected by the ABA JournalBoard of Editors as the winner of the 2009 Ross Essay Contest."  The essay is by Ben Trachtenberg, and it titled "Incarceration Policy Strikes Out: Exploding prison population compromises the U.S. justice system." Here are a few excerpts:

At midyear 2007, U.S. prisons and jails held 2,299,116 inmates, meaning more than 1 percent of American adults were incarcerated. We top the world in per capita imprisonment, increasing our lead every year.  Since 2000, while the total U.S. population increased by 7 percent, our prison population has grown by 19 percent.  Our massive imprisonment costs needless billions and, perversely, hinders effective crime control.  We need to re­duce our prison population....

A rational criminal justice system would — while shortening sentences of certain offenders — keep others out of prison altogether. With alternative treatments and punishments, a state shrinks its prison budget, allows convicts to keep their jobs and support their families, and makes recidivism less likely....

By adopting “smart on crime” programs instead of knee-jerk toughness, states can reduce crime while spending less.  Reworked federal incentives would encourage smart state policymaking. While no one supports freeing rapists and murderers, warehousing every offender wastes money, destroys lives and contributes to our shameful status as the world’s leading incarcer­ator.  We need Washington to reward good policy, not costly grandstanding that bankrupts our state governments and confines more than one of every 100 American adults.

January 27, 2009 in Scope of Imprisonment | Permalink | Comments (5) | TrackBack

Notable (and cert-worthy?) Pennsylvania Supreme Court decision on application of Atkins

This post at How Appealing alerts me to a recent ruling from Pennsylvania that providing a fitting follow-up to this recently-noted law review article discussing the challenges that lower courts are having implementing Atkins, the Supreme Court's 2002 Eighth Amendment ruling barring the execution of mentally retarded defendants.  This new article on the ruling in The Legal Intelligencer details the basics:

In a decision that may prove to be a lightning rod in the debate over Pennsylvania's use of the death penalty, the state Supreme Court has ruled that any criminal defendant with mental impairments, short of being legally defined as "mentally retarded," can be executed for capital offenses.  A dissenting justice accused the majority of being "draconian" and warned the ruling might lead to putting mentally retarded people to death.

The justices in the 5-2 decision in Commonwealth v. Vandivner ruled that those seeking waiver of the death penalty must show records noting a defendant's mental illness began before his or her 18th birthday -- a decision Justice Max Baer labeled as problematic for certain defendants.

"To say this is troubling is an understatement," Baer wrote in his concurring and dissenting opinion. "Many defendants, such as appellant, were not afforded the specialized expert attention, IQ tests, or adaptive assessments memorialized in school records, required by the majority to corroborate their claim of mental retardation."

As some readers may know, states have implemented Atkins in a variety of ways (which was to be expected when the Supreme Court in Atkins expressly left it to the states to administer is broad and vague holding).  Assuming cert in sought in this case, the fact that death row defendant Vandivner here had the burden to prove his retardation and the fact that this burden was applied quite stringently could draw the Justices' attention.  Or, if the Supreme Court ends up doing something notable in the capital cases of Bobby v. Bies (08-598) it took up a few weeks ago (details here), there might be some GVR juice in Vandivner.

Some related posts:

January 27, 2009 | Permalink | Comments (8) | TrackBack

Some mid-Term SCOTUS reflections and predictions

As noted here at SCOTUSblog, the Justices have now started another long recess.  I suppose they deserve some time off after the flurry of SCOTUS action (much of it involving criminal justice topics) in recent weeks, though the Justices surely have the kindest work schedule of any top government actors inside the Beltway.  (I am, of course, jealous because I would love four weeks away from snowy Ohio this time of year.)

The break seem like a good time to take stock of the Term so far and to start making predictions for the SCOTUS months ahead.  And, with all the other DC transitions afoot, perhaps folks would also like to comment more broadly on the overall work of the Roberts Court and on its likely future.  Here are a few of my own reflections and predictions, with my usual focus on criminal justice and sentencing issues.

First, though the Court is keeping busy, the Court has neither decided nor has on the docket any obvious blockbusters.  And, in light of all the blockbusters last Term (Heller, Baze, Boudemine, Gall and Kimbrough), the lower profile is perhaps intentional and probably should be welcomed.

Second, the Court continues to show interest is lots of criminal justice issues, including lots of sentencing matters.  Though not involving blockbuster concerns, cleaning up circuit splits and some error-correction in various criminal settings remains a priority for this Court.  Notably, the Court seems able to issue opinions in criminal justice cases more quickly than in other areas, perhaps in part because the "smaller" cases the Court is now taking do not prompt multiple opinions (and can often be resolved unanimously).

Third, as evidenced by the recent summary reversals in Spears and Nelson (discussed here), as well as the consequential ACCA ruling in Chambers (discussed here), sentencing issues still will often get more defendant-friendly treatment in the Supreme Court than in just about any other appellate court.  However, as the Ice ruling limiting Apprendi shows, even some purportedly liberal justices do not find all defense sentencing claims compelling.  And, as other rulings document, criminal defendants raising non-sentencing issues still fare much better in the Ninth Circuit and some other lower courts than in front of the Justices.

Fourth, the new President and his Administration's legal team surely could and likely will quickly shift the nature and context of some on-going constitutional debates.  Most obviously, with the closing of GITMO, the Justices won't have to save space and energy for all the detainee issues that helped keep them busy over the last five years.  In turn, I suspect the Second Amendment will soon become a key battleground for constitutional controversy over who gets to make decision about how best to balance liberty and security.  (I note here the Court has not yet resolved this Term's one Second Amendment sleeper case Hayes, which concerns a federal prohibition on gun possession by those convicted of a misdemeanor crime of domestic violence.)

Fifth, the Justices should have no problem continuing to find sentencing issues to ponder in the months and years ahead.  At some point it will have to take up a post-Booker acquitted conduct case, and there are plenty of small and large post-Bookercircuits splits that need the Court's input.  In addition, all the federal and state sex offender legislation, not to mention a host of technocorrection innovations, should keep the cert pool full of cert-worthy goodies.

January 27, 2009 in Who Sentences | Permalink | Comments (2) | TrackBack

"Sex Offenders' GPS Devices Not a Silver Bullet, States Say"

The title of this post is the title of this intriguing article from the site Government Technology.  Here are excerpts from the start of a piece that is a must-read for anyone hoping (or fearing) that GPS tracking is the future of corrections:

GPS monitoring -- embraced as a simple technological solution for tracking the whereabouts of convicted sex offenders -- is proving to be something less than a silver bullet for state and local public safety agencies.

Convinced that GPS monitoring was the answer to the sex offender problem, judges and lawmakers began mandating the technology for high-profile parolees. Beginning in 2005, the technology was widely deployed as means to ensure that offenders complied with the terms of their release, such as staying a safe distance from schools or a victim's home.

Monitoring systems typically consist of a GPS receiver/portable tracking device, radio frequency transmitter, stationary charging unit, cellular telephone and computer software to review GPS data. The devices allow officials to track the parolees' whereabouts -- when everything works properly and when offender cooperates.

But there are problems with the way the technology is used and monitored.  False alarms number in the thousands in some jurisdictions, straining manpower and casting doubt on the viability of GPS as a tracking tool for high-profile felons.

In Arizona, a 2007 legislative study found more than 35,000 false alerts by 140 subjects wearing the GPS-monitoring devices.  In California, the percentage of transient parolees, those who've been declared homeless, has increased by 900 percent since a law was passed that included GPS as part of the solution.  Now, officials say, they're guessing about where the offenders are because more have become transient and the GPS monitoring can be unreliable, especially when the offenders lack real housing where they can charge the devices....

Though public safety officials typically agree that GPS is a valuable tool, they say it's not a replacement for personal contact with the subject, his co-workers, family and friends that keeps the offender honest.

Some related posts on GPS tracking and related technocorrections:

January 27, 2009 in Sex Offender Sentencing, Technocorrections | Permalink | Comments (7) | TrackBack

January 26, 2009

The challenges of implementing Atkins

I just noticed on SSRN this new paper on how well (or should I say how poorly) lower courts are implementing the Eighth Amendment capital ruling barring the execution of mentally retarded defendants.  The piece is titled "Of Atkins and Men: Deviations from Clinical Definitions of Mental Retardation in Death Penalty Cases", and here is the abstract:

Under Atkins v. Virginia, the Eighth Amendment exempts from execution individuals who meet the clinical definitions of mental retardation set forth by the American Association on Intellectual and Developmental Disabilities and the American Psychiatric Association.  Both define mental retardation as significantly subaverage intellectual functioning accompanied by significant limitations in adaptive functioning, originating before the age of 18.  Since Atkins, most jurisdictions have adopted definitions of mental retardation that conform to those definitions.  But some states, looking often to stereotypes of persons with mental retardation, apply exclusion criteria that deviate from and are more restrictive than the accepted scientific and clinical definitions.  These state deviations have the effect of excluding from Atkins's reach some individuals who plainly fall within the class it protects.  This article focuses on the cases of Roger Cherry, Jeffrey Williams, Michael Stallings and others, who represent an ever-growing number of individuals inappropriately excluded from Atkins.  Left unaddressed, the state deviations discussed herein permit what Atkins does not: the death-sentencing and execution of some capital defendants who have mental retardation.

January 26, 2009 in Death Penalty Reforms | Permalink | Comments (9) | TrackBack

Though Booker did not help Booker, the reduced crack guidelines did

The significance of the US Sentencing Commission's decision to make its reduced crack guidelines retroactive has been usefully highlighted by a ruling today in favor of a defendant with a well-known name: Freddie Booker.  As sentencing fans recall, though Booker won his Supreme Court case, he was sentencing again to the same 360-month term imprisonment at resentencing because the Booker remedy authorized sentence-enhancing judicial fact-finding as long as the guidelines were treated as advisory.  But today, as reported here via an e-mail from a federal defender, Freddie finally go a sentencing break:

Although meager, and way too late, I am pleased to report that Freddie Joe Booker finally got at least a small amount of relief.  Chief Judge Crabb in the Western District of Wisconsin today granted Freddie Booker's 3582 motion and reduced his 360-month sentence to 324 months (bottom of range two levels lower).

January 26, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (3) | TrackBack

Sixth Circuit issues first Spears remand

The per curiam ruling by the Supreme Court last week in Spears (basics here) stressed that it acted via summary reversal because of the need to "promptly remove from the [jurisprudential] menu the Eighth Circuit’s offering, a smuggled-in dish that is indigestible" in light of the teachings of Kimbrough.  Today, the Sixth Circuit has the distinct honor of being the first lower court to serve up a Spears remand through US v. Johnson, No. 07-2447 (6th Cir. Jan. 26, 2009) (available here):

In light of the Supreme Court’s recent decision in Spears v. United States, — S. Ct. —, No. 08-5721, 2009 WL 129044 (Jan. 21, 2009), we VACATE Johnson’s sentence and REMAND for resentencing. Spears held that district courts have the power to categorically reject and vary from the crack-cocaine sentencing guidelines based on a policy disagreement with the guidelines, even in a mine-run case such as this.  Because the district court sentenced Johnson without the benefit of Spears, we remand for resentencing to give the district court an opportunity to impose a sentence with full recognition of its authority to reject and vary from the crack-cocaine Guidelines based solely on a policy disagreement with those Guidelines.

Disappointingly, Sixth Circuit Judge Cook was not on the panel, so I can take the culinary metaphors just so far with this first ruling.  Mangia!

Recent related posts:

January 26, 2009 in Kimbrough reasonableness case | Permalink | Comments (5) | TrackBack

New opinion from Judge Adelman explaining why drug guidelines merit less respect under 3553(a)

I just received a short but still important new sentencing decision from US District Judge Lynn Adelman. Judge Adelman imposes a below-guideline sentence in US v. Thomas, No. 08-CR-238 (E.D. Wisc. Jan. 24, 2009) (available for download below), based on part on the conclusion that the powder cocaine drug trafficking guideline is entitled to less respect because it is not based on an "empirical approach" or  study and expertise from the US Sentencing Commission. Here is a key paragraph from the opinion in Thomas:

As indicated above, the guidelines recommended that defendant served 27-33 months in prison.  In considering this recommendation, I noted that the Sentencing Commission “departed from the empirical approach when setting the Guidelines range for drug offenses, and chose instead to key the Guidelines to the statutory mandatory minimum sentences that Congress established for such crimes.”  Gall, 128 S. Ct. at 594 n.2.  The Commission did not at the time of adoption explain how this scheme furthered the purposes of sentencing or otherwise justify the recommended sentences by reference to past practice or other research or study, and sentences in drug cases have since increased far above pre-guideline practice.  See U.S. Sentencing Commission, Fifteen Years of Guideline Sentencing 48-49, 53 (2004).  Such guidelines, which do not take account of empirical data and national experience, and do not exemplify the Commission’s exercise of its characteristic institutional role, are generally entitled to less respect. See Kimbrough, 128 S. Ct. at 575.

Download Judge Adelman written memo for drug variance

January 26, 2009 in Booker in district courts | Permalink | Comments (2) | TrackBack

One Texas execution stayed, two more still scheduled for this week

This new AP story provides the latest execution news and notes coming from Texas this week:

A federal appeals court on Monday stopped this week's scheduled execution of a man condemned for abducting, raping and strangling a 19-year-old suburban Houston woman 10 years ago. Larry Swearingen, 37, faced lethal injection Tuesday evening for the death of Melissa Trotter, whose body was found Jan. 2, 1999, in the Sam Houston National Forest south of Huntsville. The discovery came 25 days after she was last seen leaving the library at Montgomery College near Conroe.

The 5th U.S. Circuit Court of Appeals reprieve came in response to questions from Swearingen's attorneys about the timing of Trotter's death. Swearingen insisted he couldn't have killed the woman because he was in jail for outstanding traffic warrants when newly evaluated forensic evidence indicates her body was dumped in the woods not far from his home....

Swearingen would have been the fourth condemned prisoner executed this year. Two more executions are scheduled later this week in the nation's most active death penalty state....

On Wednesday, Virgil Martinez, 40, is set to die for a 1996 shooting rampage that left four people dead, including his ex-girlfriend and her 3- and 6-year-old children. On Thursday, Ricardo Ortiz, 46, was scheduled for execution for fatally injecting a fellow inmate with heroin in 1999 at the El Paso County Jail to stop the victim from testifying against him in a robbery case.

January 26, 2009 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

When will President Obama start acting like President Lincoln when it comes to the clemency power?

This CNN reporthighlights that President Obama is already moving fast during his second work week, having already "signed a memorandum Monday requiring the Environmental Protection Agency to reconsider an application by California to set more stringent auto emissions and fuel efficiency."  In addition, as detailed at this official page, President Obama has already acted on abortion issues, ethics issues and GITMO/terror war issues.  In light of all this activity, I think it is now no longer too soon to start complaining about the new President's failure to start using his clemency power.

As noted hereby PS Ruckman, President Lincoln was proactive in his use of the clemency power, and there is every reasons for the new President to consider following his lead:

Despite the fact that he was riding thin electoral support and had a Civil War on his hands, Abraham Lincoln took the time and, to some extent, the political risk, to grant pardons to almost 400 individuals in just over four years [which is] more than both George H. W. Bush and George W. Bush combined granted in a full twelve years....

Because President Lincoln frequently provided multiple explanations for his clemency decisions, we know that he considered a wide range of factors in granting these pardons but especially: good behavior during confinement, a penitent disposition, first time offenses and the youth of offenders. Scholars have noted Lincoln "thrived on the hope that each request he granted further educated a portion of the public as to the necessity of a clemency power in the justice system."  With hundreds of thousands of Americans in our prisons, and thousands of applications for clemency piled up in the Department of Justice, we believe the Nation is long over-due for this side of Abraham Lincoln to re-emerge in the White House.

Even a poor math student can figure out that granting 400 pardons in four years work out to an average of 1 or 2 clemency grants each and every week.  FDR, another famed President often mentioned these day, granted, on average, more than 5 clemencies per week throughout all his years in the White House.  So, if President Obama really wants to follow in wise presidential footsteps, he ought to get moving on clemencies ASAP.

Some recent related posts:

January 26, 2009 in Clemency and Pardons | Permalink | Comments (4) | TrackBack

Nelson's key language and the SCOTUS spirit: guidelines are really, truly advisory

For the second week in a row, the Supreme Court has issued a little per curiam opinion to make sure, yet again, that lower courts really, truly understand that the Booker remedy means that the guidelines really, truly are advisory.  Today's opinion, in Nelson v. US, No. 08-5657 (S. Ct. Jan. 26, 2009) (available here), includes this key language (cites edited): 

Our cases do not allow a sentencing court to presume that a sentence within the applicable Guidelines range is reasonable.  In Rita we said as much, in fairly explicit terms: “We repeat that the presumption before us is an appellate court presumption. . . . [T]he sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.”  551 U. S., at 351.  And in Gall we reiterated that district judges, in considering how the various statutory sentencing factors apply to an individual defendant, “may not presume that the Guidelines range is reasonable.” Id..

In this case, the Court of Appeals quoted the above language from Rita but affirmed the sentence anyway after finding that the District Judge did not treat the Guidelines as mandatory.  That is true, but beside the point.  The Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable. We think it plain from the comments of the sentencing judge that he did apply a presumption of reasonableness to Nelson’s Guidelines range.  Under our recent precedents, that constitutes error.

One might initially view this decision as just an example of the Justices making sure that the Fourth Circuit takes prior decisions to heart.  But the fact that Justice Breyer (with Justice Alito) concurred separately to assert that the Court should have just done a GVR rather than a summary reversal suggests to me that a lot more is afoot.

Specifically, with Gall and Kimbrough and now Spears and Nelson, I sense that the Justices (perhaps save Justices Breyer and Alito) are persistently troubled by how prominent the federal sentencing guidelines remain in both district and circuit sentencing decision-making.  Through Spears and now Nelson, the Justices have made extra efforts to say to lower courts that they need not, perhaps even should not, keep gravitating toward the guidelines.  Though one would have hoped this message came through loud and clear through the rulings in Gall and Kimbrough, it is important to see the Justices willingness to keep smacking down the circuits that seem so unwilling to get with the full 3553(a) post-Booker program.

January 26, 2009 in Booker and Fanfan Commentary | Permalink | Comments (6) | TrackBack

Lots more notable criminal justice action from the Supreme Court, including another summary reversal

The Supreme Court issued a whole bunch of opinions and granted cert on three new cases today, and there is lots of criminal action in this flurry of activity.  To get effective summaries and links of all the action, readers should go SCOTUSblog, of course.  I hope to get a chance to blog about some of these developments later today.

But sentencing fans will want to start by checking out another notable summary reversal on a Booker-based sentencing appeal, this time in Nelson v. US, No. 08-5657 (S. Ct. Jan. 26, 2009) (available here).  Nelson is not quite as big a deal as last week's Spears decision because in Nelson the Solicitor General's office admitted error.  Nevertheless, as I will highlight in a subsequent post, there is still some useful language in Nelson for other appealing within-guideline sentences.

Recent related posts:

January 26, 2009 in Who Sentences | Permalink | Comments (2) | TrackBack

Another local article showing relative ease of implementing crack reductions

This effective local article, headlined "Q-C crack cocaine sentences reduced," provides yet another example of how effectively and efficiently lower courts have been implementing the reduced crack sentences that the Sentencing Commission made retroactive. Here are snippets:

After playing football for the Iowa Hawkeyes, Ernest Crank turned to dealing crack cocaine. The amount of crack he dealt landed Crank, a native of Chicago, in a federal courtroom in Davenport and then in federal prison for 20 years. Crank has learned much during time so far in prison, court documents say.

“He has taken advantage of every program made available to him,” his attorney, Clemens Erdahl, wrote in a motion to reduce Crank’s sentence. “His self-education in the law … is evidence of an excellent mind and the ability to channel his time and energy productively. Thus, defendant is a better man than the one who was incarcerated over nine years ago.”

But what Crank has come to know during his prison time has little to do with the four-year reduction in sentence he received. Instead, his request is one of thousands filed nationally as federal officials reduced the amount of time people spend in prison for dealing the highly addictive drug that affects the black community more than any other....

For the most part, the process has gone smoothly in the two federal courthouses that serve the Quad-Cities, officials said. Prosecutors and defense attorneys worked with probation officers to sift through applications to determine who was eligible and who was not. People with mandatory sentences and career offender status were out. A few people convicted of other types of crime attempted to ask for reductions, too.

In the Central District of Illinois, of which the Illinois Quad-Cities is a part, 307 cases were considered as of the beginning of December, according to the U.S. Sentencing Commission. Of those 139 were granted, and 168 were denied. The average decrease was 28 months.

Jeff Lang, assistant U.S. attorney, said the process was smooth for the most part. Prosecutors examined cases to determine if a person would present a substantial public safety risk if released...

In the Southern District of Iowa, which includes the Iowa Quad-Cities, 144 cases were considered as of December, according to the U.S. Sentencing Commission. Eighty were granted; 64 were denied. The average reduction was 27 months.

January 26, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

January 25, 2009

"Racial Disproportionality in the American Prison Population"

The title of this post is the start of the title of this article from the Fall 2008 issue of the Justice Policy Journal.  Especially after a week in which many are eager to assert we have entered a new era when it comes to racial issues and justice issues, the article provide an important reminder of some critical criminal justice reality. As I have mentioned throughout the week, President Obama's Inaugural Address was inspirational when discussing "that noble idea passed on from generation to generation: the God-given promise that all are equal, all are free, and all deserve a chance to pursue their full measure of happiness."  But, as the JPJ article highlights, the US now denies freedom through incarceration quite unequally.  Here is the start of the article's abstract:

Statistics indicate that racial/ethnic minorities, particularly black and Hispanic males, face a disproportionately high risk of incarceration in the United States.  We argue that this is the most serious issue facing contemporary criminal justice policymakers.  This determination is made by assessing the negative impact that incarceration can have on individuals, their communities, and the integration of minorities into the nation’s larger social, economic, and political landscape.

January 25, 2009 in Race, Class, and Gender | Permalink | Comments (0) | TrackBack

Should the GITMO prisoners go to Alcatraz?

Alcatraz Not surprisingly, the President's order to close GITMO has everyone talking about where the prisoners now held there will be sent.  This Denver Post article, for example, reports on buzz already surrounding the the possibility that the GITMO detainees might be sent to the federal supermax prison in Florence, Colorado.

I think there is a pretty good chance that at least some of the GITMO detainees will end up in a federal supermax prison.  But I was joyfully gobsmacked when on NBC’s “Meet the Press” this morning House Minority Leader John Boehner suggested we send them to Alcatraz.

As revealed in this official website, right now Alcatraz Island is a national park.  But as detailed in official and unofficial websites, the colorful and dynamic history of Alcatraz (not to mention its secure location) makes it perhaps the most fitting locale for the next chapter of the war on terror.

January 25, 2009 in Prisons and prisoners | Permalink | Comments (5) | TrackBack

Details of the prison economy problems from the Granite State

Local papers this Sunday are filled with local prison economy stories.  In addition to these pieces from West Virginia, today also brings from the Concord Monitor this article, headlined "In crisis, changes for prisons: Budget challenge may reshape corrections."  Here is a snippet, which includes details of the state's interesting back-end sentencing mechanism and cost calculations:

The state's corrections budget is one of the biggest and one of the hardest to cut because Commissioner William Wrenn can't simply close his prisons and send inmates home.  But many think this economic crisis might be the state's best chance to find cheaper, better ways to do its prison business.

"There is nothing like lean times to make you smart," said former speaker of the New Hampshire House Donna Sytek, who saw lawmakers through a similarly severe downturn in the 1990s.... 

"It's not about being tough on crime or soft on crime," Wrenn said. "We are facing a huge economic challenge here. Are we doing the right thing?"

Inside the prison, Wrenn had reinstated a past practice of allowing well-behaved, successful inmates to request early release before they'd otherwise be able to do so through the courts. Inmates can petition Wrenn and a review board to recommend them for a sentence modification; if the board approves the request, it sends the petition onto the sentencing judge for a final decision.

But Wrenn isn't expecting the revived practice to be a big money-saver for the state because in the one month the policy has been in place, nine inmates have submitted petitions and the review board hasn't approved any for submission to a judge.  Wrenn said his real hope is that the opportunity to win a sentence modification will persuade inmates to more actively pursue education and counseling while in prison to enhance their chances of early release.

What Wrenn is most passionate about may be the hardest of the solutions to pull off: alternative sentencing for defendants who suffer mental illness or substance abuse addiction.  He and a lot of others believe that if that population could be supervised and treated in their own communities and not housed in prison cells, the benefits would be many and not only monetary.

Inmates cost the state not only the $32,000 a year for basic incarceration, but also thousands in medical bills because the state is obligated to cover medical expenses when inmates are behind bars. Inmates supervised on the outside, however, are eligible for private insurance or Medicaid, which means savings for the state.

It's also far cheaper to pay a probation officer to supervise an inmate in an intense alternative program than to house someone inside a prison. In a recent study,  The New Hampshire Center for Public Policy Studies compared that cost by looking at a year inside prison against a year in Strafford County's Drug Court, an intensive supervision and treatment program that lets inmates live at home.  The difference was staggering: $32,000 a year in prison versus about $11,400 a year in the Strafford County's alternative program.

January 25, 2009 in Scope of Imprisonment | Permalink | Comments (11) | TrackBack

Potent scholarship about reasonableness review and sentence explanations

The University of Chicago Law Review has published this new comment, titled "Determining 'Reasonableness' without a Reason?: Federal Appellate Review Post–Rita v United States."  As detailed in these passages from the introduction, the piece provides a potent and wise account of how appellate courts should assess procedural reasonableness:

This Comment explores the circuits’ conflicting readings of the Booker and Rita rulings with respect to the adequacy of judges’ sentencing explanations and argues that a sentence is procedurally reasonable only when the appellate court can follow, recreate, and assess the district court’s basis for the sentence. Not only is this conclusion supported by Booker and Rita’s emphasis on the importance of thoroughly reasoned sentencing opinions for the evolution of the Guidelines, but also by the SRA’s focus on increased transparency and rationality in the sentencing process....

Part V discusses the centrality of explicit and thoroughly reasoned sentencing explanations to SRA’s vision of the federal judiciary’s role in the development of sentencing policy and procedures. It proposes that the First and Sixth Circuits’ reading of Rita— that a sentence is procedurally unreasonable when neither the context nor the record clearly reveals the district court’s consideration of relevant § 3553(a) factors and the reasoning for imposing the sentence — most closely comports with both the purpose and text of the SRA, and with meaningful sentencing reform more generally.

Some related posts with some recent reasonableness review scholarship:

January 25, 2009 in Booker in the Circuits, Claiborne and Rita reasonableness case, Recommended reading, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Reporting from West Virginia about prison economy realities

Two articles today from the Times West Virginian provide another effective local perspective on my favorite real-politick mantra, "It's the prison economy, stupid."  The lead article, headlined "Running out of room: Drug courts one option in reducing prison overcrowding," starts this way:

As in many other states, the prison population in West Virginia is increasing quickly.  Although violent crimes are on the decline, the population of West Virginia’s prisons is quickly outgrowing the capacity of the state’s facilities, according to Joe Thornton, deputy secretary of the West Virginia Department of Military Affairs and Public Safety, which is the agency that oversees the Division of Corrections.

Currently the state has room for 5,000 prisoners in state prisons.  However, there are now 6,200 inmates who have been sentenced to terms in state prisons, Thornton said.  That means there are 1,200 prisoners who should be confined to state prisons but are instead sitting in regional jails awaiting transfer to prisons when a bed opens up.

“It’s a matter of perspective, but I think we’re at a crisis level right now,” Thornton said. “And now were running out of space in the regional jails, too.”  And the problem is likely to get worse. According to Thornton, the number of those sentenced to serve terms in a state prison is predicted to rise to around 8,000 by 2012.  Gov. Joe Manchin has appointed a commission to study the overcrowding issue, Thornton said, and there are several solutions being discussed to deal with the overcrowding problem.

The companion article, headlined "Alternative sentencing becoming more common," starts this way:

Like many expenses, the cost of housing inmates in jails and prisons around the country is increasing.

Along with the increasing costs, inmate populations are also on the rise, and that is leaving governments on the federal, state and local levels looking for ways to cut down on the costs of housing criminals.  To combat that, different forms of alternative sentencing have been thrust to the forefront.

Alternative sentencing can come in forms such as home confinement or community service and is normally reserved for non-violent offenders.  The idea of the programs is to keep the offender out of jail, which reduces the fees paid by the state and counties.

January 25, 2009 in Scope of Imprisonment | Permalink | Comments (6) | TrackBack