Sentencing Law and Policy

Tennessee legislators talking reform of death penalty administration

As detailed in this local article, headlined "Tennessee's death penalty laws need major reform, legislative group says," legislators in the volunteer state are talking about how to improve the state's administration of capital punishment. Here are details from the start of the article:

Tennessee's death penalty needs major reform to ensure that people facing execution get fair trials, said members of a legislative study committee which just ended 16 months of analyzing how capital crimes are prosecuted in this state.

The study committee, which included people for and against the death penalty, was asked to look for ways to make capital punishment more fairly and accurately applied across the state.

Four bills related to the recommendations have been introduced and are sponsored by the committee's chairmen, Sen. Doug Jackson, D-Dickson, and Rep. Kent Coleman, D-Murfreesboro. The committee wants the state legislature to: 

• Require defense attorneys in capital cases to be highly qualified;
• Mandate that defense attorneys have uniform access to evidence against their clients;
• Require police officers to record all interrogations related to a homicide case;
• Force the state to set realistic timetables for litigating capital cases so families are not revictimized by decades of appeals.

Needless to say, these reforms necessarily come with a significant price tag.  In these lean times, I would be very surprised if Tennessee find the resources necessary to make these sensible recommendations a reality.  Notably, this article includes some discussion of these cost issues:

"I think my biggest surprise, though I had an idea, is that the death penalty is a very expensive process," said Rep. Bill Dunn, R–Knoxville. "It has to be in order to get the right verdict, but I don't think the average taxpayer knows what it costs to seek this penalty."  Neither does the state, according to the report. The comptroller's office testified that no effective way exists to track the costs of capital punishment cases to the state....

Two members of the committee voted against the final draft of the report on Thursday, citing opposition to the costly recommendation of creating an independent authority to oversee the representation of suspects facing the death penalty, starting with their trials.

Some recent related posts:

• States considering laying off the death penalty during tough economic times
• Death penalty abolition becoming more realistic in a few western states
• Interesting time for Time's discussion of death's demise
• What might 2009 have in store for . . . the death penalty in the US?
• DPIC releases year-end report on state of death penalty in 2008

Weekend reading on international sentencing

Because I can barely keep up with major national sentencing trends, I am always grateful to see others keeping an eye on important international sentencing stories.  Thus, I was excited to see this new piece on SSRN by Shahram Dana, titled "Advancing International Law: Rethinking Nulla Poena Sine Lege in International Criminal Justice." Here is the abstract:

Although ranking among the most fundamental principles of criminal law, nulla poena sine lege has received surprisingly little attention in international criminal justice.  Indeed, it may be considered the 'poor cousin' of nullum crimen sine lege, which in comparison has been the subject of numerous articles, books, and judgments.  Given that they work in tandem as principles of legality, the limited scholarship on nulla poena sine lege is difficult to justify, although not without explanation.  It has not, for example, escaped attention that nulla poena 'affects only proven criminals' while nullum crimen sine lege 'protects the mass of respectable citizens'.  While most criminal justice systems have made considerable efforts over the years to close this gap, international criminal law has not. 

The potential contribution of nulla poena sine lege has been largely overlooked in the context of international prosecutions by policy makers, drafters, and judges.  Likewise, there exists a lacuna in academic scholarship on this subject. Under-theorization of nulla poena in international criminal justice stalls the maturation in international law of this long standing criminal law principle, keeps dormant its contribution to justice, and challenges the legitimacy of international punishment.

This article aims to redress this imbalance by developing the normative content of nulla poena sine lege under international law.  The study's methodology deconstructs the nulla poena sine lege maxim into its underlying legal principles, investigates sources of international law pertaining to each principle and, reconstructs an international nulla poena sine lege maxim.  The article hypothesizes that a fuller appreciation of the function and purpose of nulla poena sine lege, gained through an elucidation of its underlying legal principles, can facilitate a more penetrating analysis of its normative development in international law.  Measured against the international standard for nulla poena, the article critically evaluates the statutes of international criminal courts and the emerging international sentencing jurisprudence for mass atrocities, genocide, crimes against humanity and war crimes.

More evidence Obama's DOJ is just not that into change in the criminal justice arena

Tony Mauro has this interesting new post at The Blog of Legal Times, titled "SG Won't Disavow Bush Position in Controversial DNA Case."  Here is how the post starts:

The solicitor general's office has turned down a request by the Innocence Project to disavow a Bush Administration stance on prisoners' access to DNA evidence in postconviction proceedings. As a result, on March 2, Neal Katyal will make his debut as deputy solicitor general by arguing before the Supreme Court in support of the state of Alaska's view that prisoners have no constitutional right to obtain DNA evidence that might help them prove their innocence -- even if the prisoners pay for the DNA testing themselves. The case is District Attorney's Office for the Third Judicial District v. Osborne.

The decision to maintain the same position as the Bush Administration in the case has caused deep disappointment among innocence advocates, especially in light of President Barack Obama's strong support of access to DNA evidence while a state senator in Illinois, where many of the early successes in exonerating innocent inmates through DNA evidence took place.

The episode also highlights the tension between a new administration's eagerness to change direction, and the institutional reluctance in the solicitor general's office to shift gears too suddenly, for fear of losing credibility with the high court.

As I have indicated in a number of prior posts, the Obama Administration has given very few signals that it is seriously interested in changing course on an array of lower-profile (but very consequential) criminal justice issues.  I am pleased to see the Innocence Project urging a new direction, and I hope lots of other public policy groups will formally advocate for the Obama Administration's litigation realities to match up with the new President's soaring rhetoric.  But, as this Osborne example spotlights, I fear that "change" may not amount to much more than a slogan in many federal criminal justice settings.

Some recent related posts:

• Inaugural rhetoric about freedom and liberty in prison nation
• What do "our ideals" say about mass incarceration or LWOP for juves or acquitted conduct or the death penalty or GPS tracking or....
• Will AG Holder really lead a "new birth of freedom" in prison nation?
• My latest (academic?) musings about progressive punishment perspectives
• After fast work on excessive pay, now how about similar work on excessive sentences?
• Am I crazy to dream about a "Liberty Recovery Advisory Board"?
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• Interesting reflections on Obama appointees from drug policy reformers

Assessing the reality of modern prison growth

A helpful reader alerted me to this new Slate article by Professor John Pfaff, titled "Reform School: Five myths about prison growth dispelled." The piece builds off John's terrific and terrifically important article on "The Myths and Realities of Correctional Severity" (discussed here).  Here is how this Slate piece starts:

The United States has a prison population like nowhere else.  With one out of every 100 adults behind bars, our incarceration rate is the highest in the entire world. Our inmates — 1.5 million in prison, with another 800,000 in jail — comprise one-third of the world's total.  This is a surprisingly recent development. A fter barely budging for 50 years, our incarceration rate increased sevenfold (to 738 per 100,000 people) between 1978 and 2008.

The system is now at its breaking point.  Federal judges in California just issued a tentative order demanding that the state release nearly 60,000 inmates over the next three years to alleviate intolerable overcrowding.  New York state's sentencing commission released a 326-page report calling on the Legislature to cut back on severe drug sentences.  And with budgets growing ever-tighter in a collapsing economy, states are beginning to realize that large prison populations are boom-time luxuries they can no longer afford.

Reform is inevitable.  But if we are going to rein in our prison populations, we should do so based on facts, not on unfounded perceptions or shocking anecdotes.  So let's start by dispelling some of the myths that surround the breathtaking prison growth of the past three decades.

Pastor gets jail time for violating Oakland abortion clinic buffer-zone law

Because I am always intrigued by the intersection of sentencing issues and religious issues, this local sentencing story out of California caught my eye:

A pastor found guilty of violating a city law created to provide an 8-foot buffer between anti-abortion protesters and women entering clinics was sentenced to 30 days in jail and ordered to stay 100 yards away from the clinic at which he was arrested for the next three years.

The Rev. Walter Hoye, the first person charged and found guilty of the city's two-year-old law must also pay $1,130 in fines and remain on probation for three years after either serving his 30 days in county jail or entering an alternative program run by the sheriff's department.

The ruling, which was made by Alameda County Superior Court Judge Stuart Hing, came amid a charged atmosphere in the courtroom packed with both abortion-rights and anti-abortion advocates....

Hoye's case, a misdemeanor charge, has garnered national attention from anti-abortion supporters, many of whom traveled from as far as Dallas to speak in support of the pastor, who they said was having his First Amendment rights taken away....

But Alameda County Deputy District Attorney Robert Graff, who successfully tried the case, argued that Hoye was not an innocent man standing on a sidewalk with a sign but someone who violated a city law.  "To suggest that he was merely holding a sign on the sidewalk does not speak to the totality of what is going on here," Graff said.  "This is a balancing of rights here. These people's rights have to be balanced as well."

Hoye was arrested last May after he approached two women and their escorts who were trying to enter the Family Planning Specialists Medical Group in Jack London Square.  Hoye was originally charged with four counts of violating the city law but was found guilty last month of two counts. Hoye's defense attorneys, paid for by the Life Legal Defense Foundation, argued, at times with tears in their eyes, that the law was unconstitutional and that a punishment of jail was cruel and unusual.

While Graff agreed Hoye should not be placed in jail, he asked Hing to place the pastor on three years probation with an order to stay 100 yards away from the clinic.  If Hoye did not agree to that, Graff said he should be sent to county jail for two years.

Hing asked Hoye if he would abide by the ruling during court Thursday.  The pastor refused, saying he could not follow a law he found to be unjust.  As a result, Hing sentenced Hoye to 30 days in jail with the option of entering a sheriff work-release program that allows him to do sheriff-sponsored community service in exchange for jail time.

The idea that the "punishment of jail was cruel and unusual" under these circumstances provides a little window into an Eighth Amendment idea that's been kicking around my head a lot since the Heller ruling.  Specifically, I have been giving thought to the idea that there may be constitutional limits under the Eighth Amendment concerning how and/or how severely the state can punish conduct that comes within the penumbra of, but may not be fully constitutionally protected by, a particular Bill of Rights amendment.

Will AG Holder really lead a "new birth of freedom" in prison nation?

In addition to all the interesting advocacy for frank conversations about racial issues (details here), Attorney General Eric Holder articulated this potent commitment to freedom in his first major speech:

Through its work and through its example this Department of Justice, as long as I am here, must — and will — lead the nation to the "new birth of freedom" so long ago promised by our greatest President. This is our duty and our solemn obligation.

I am pleased to hear the new AG talking the talk of freedom.  But, especially with United States as the world's leader in incarceration, the big question with whether he will really walk the walk.  There are many ways that AG Holder could and should fulfill this duty and solemn obligation to usher in a new birth of freedom in prison nation, and I hope he will start trying to make criminal justice realities live up to his rhetoric.

Some recent related posts:

• Will we invest in classrooms or cells in these tough times?
• The state of cost problems in the states of prison nation
• How many states are being forced by economic realities to consider releasing prisoners?
• My latest (academic?) musings about progressive punishment perspectives
• After fast work on excessive pay, now how about similar work on excessive sentences?
• Am I crazy to dream about a "Liberty Recovery Advisory Board"?
• Inaugural rhetoric about freedom and liberty in prison nation
• What do "our ideals" say about mass incarceration or LWOP for juves or acquitted conduct or the death penalty or GPS tracking or....
• Terrific commentary and assessment of the war on drugs

Noticing that a death sentence is often practically a life sentence in Florida

The Orlando Sentinel has this long article documenting the reality that defendants sentenced to death in Florida are just as likely to die while awaiting execution as being executed. The piece is headlined, "Justice denied? On Florida's death row, many lives end -- but not by execution," and here are snippets:

Between March 1998 and November 2008, the Department of Corrections executed 26 prisoners. During that same period, another 26 death-row inmates died of other causes, the Orlando Sentinel found.

Such figures don't surprise experts, since death-penalty cases can take years -- even decades -- to work through the legal system. While the condemned wait, they can fall victim to ailments traceable to years of unhealthy living before their convictions, including drugs and alcohol abuse.

Of the 26 inmates who died from other causes, more than half passed away from cancer or heart disease.  Prison officials wouldn't comment on the health of those currently on death row.  But two inmates were recently in a prison infirmary, and another at a treatment center, according to DOC.

Prisoners spend an average of 14 years on death row.  The rate of execution in Florida fluctuates each year -- six in 2000, for example, but two last year.

Wisconsin Governor proposing early prison releases in state budget

Add Wisconsin to the ever-growing list of states considering sentencing reforms in the hope of saving money through a reduced prison population.  This local story provides the basic details: 

Wisconsin's estimated 22,000 inmate population could be seeing a significant reduction in coming years. Governor Jim Doyle wants nonviolent offenders to be able to get out of jail sooner by earning days off their sentences with good behavior. He also wants to eliminate probation for nonviolent offenders convicted of misdemeanors.

"You go and behave yourself in prison and you do what you are supposed to do, there is actually some incentive for you to do well," Doyle said.

The plan, which is part of the governor's budget proposal, would save the state considerable money and alleviate crowding in prisons. Wisconsin is facing an estimated $5.7 billion shortfall by mid-2011. Doyle has said nothing is off limits in terms of making cuts.

Wisconsin's Department of Corrections Secretary, Rick Raemisch, estimates about 3,000 inmates would be eligible for early release. "They truly do have to earn their way out, whether it be through programming, behavior adjustment, or positive changes behind bars. It's being smart on crime instead of tough on crime," Raemisch said. He did not have an exact savings estimate, however.

State Republican leaders are criticizing the plan, saying it would sacrifice public safety just to save some money.

Some recent related posts:

• The state of cost problems in the states of prison nation
• How many states are being forced by economic realities to consider releasing prisoners?
• My latest (academic?) musings about progressive punishment perspectives
• Will we invest in classrooms or cells in these tough times?
• Effective op-ed about dealing with prison costs coming due

The latest news is the saga of "Sex, Lies and Variances"

I reported in this post yesterday on the fascinating federal sentencing case that could provide the basis for screenplay titled "Sex, Lies and Variances."  The latest news in the case comes from this Boston Globe article:

Federal prosecutors today defended their controversial recommendation that a suspected prostitute receive only six months in jail for allegedly extorting $280,000 from a prominent businessman, saying a longer sentence might prompt her to go to trial, which the businessman wanted to avoid to keep his identity secret.

"Here, the victim's interest in avoiding a trial in which his identity would in all likelihood be revealed is a factor which the government has weighed heavily in calculating its recommended sentence," Assistant US Attorney James P. Dowden said in a 13-page filing.... Keeping the businessman's name a secret, he added, would encourage victims of similar blackmail threats to come forward "even in circumstances where the extortion victim himself has engaged in inappropriate (and even illegal) behavior."

Dowden filed the explanation today in response to an order by US Chief District Court Judge Mark L. Wolf, who wanted to know why prosecutors and the lawyer for Michelle Robinson were recommending a sentence that would likely result in her immediate release.... Federal sentencing guidelines ordinarily would recommend that Robinson, who intends to plead guilty Friday to wire fraud and threats in interstate communication, serve 33 to 41 months in prison, Wolf wrote.

UPDATE:  As detailed in this follow-up article,

US District Court Chief Judge Mark L. Wolf accepted [the] controversial plea agreement yesterday that will give Michelle Robinson, 29, much less time behind bars than the approximately two to three years that federal sentencing guidelines recommend and forbids her from revealing the identity of the man she extorted with threats of public disclosure....

Wolf, a former high-ranking federal prosecutor, sided with prosecutors who have taken pains to keep the man's identity a secret even though the businessman repeatedly committed a crime by paying Robinson for sex from about January 2007 to June 2008.  "While that businessperson created his own vulnerability, he is nevertheless a victim," said Wolf. He said the man deserves the protections of the Crime Victims' Rights Act of 2004, which says victims have the right "to be treated with fairness and respect for [their] dignity and privacy."

Another public and potent call to reinvigorate the pardon power

Just appearing at The National Law Journal is former US pardon attorney Margaret Colgate Love's latest call to get the presidential pardon power working properly again.  This latest piece, which is co-authored with another former pardon attorney, John Stanish, is titled simply "Reinvigorate the Power."  Here are excerpts:

Pardons are granted only at the end of a president's term, so goes the conventional wisdom. In reality, most presidents have hit the ground running where pardoning is concerned.  The best of them have made strategic use of this most personal power from the very beginning to advance their policy goals.

For example, in his first year in office, Abraham Lincoln issued 80 grants of pardon to ordinary citizens, in addition to his more famous grants to soldiers. By his second term he had pardoned 365 civilians. Lincoln encouraged a high degree of public participation in his clemency decision-making process, even disclosing the reasons for each grant.  A pardon scholar notes that Lincoln "thrived on the hope that each request he granted further educated a portion of the public to the necessity of a clemency power in the justice system."

Other exemplary occupants of the Oval Office were similarly forgiving early on. In their first year, Theodore Roosevelt issued 128 grants, Franklin Roosevelt 167 and Truman 107....

The disappointing trickle of grants at the end of Bush's term, like the torrent of irregular grants at the end of Clinton's, was the product of a chronically dysfunctional pardon advisory system in the Justice Department, a system now dominated by prosecutors that produces few favorable recommendations.... [N]either president was well-served by a Justice Department whose pardon office has become a place where petitions for presidential mercy go to die....

It is unfortunate that the pardon power has become essentially unusable, for it has never been more critical to the fair and efficient operation of the criminal justice system.  Harsh no-parole sentences mean that many people remain in prison long after any just purpose is served by their continued incarceration, and all leave prison permanently burdened with disabling collateral consequences that almost guarantee their return to crime.  Pardon, once the justice system's fail-safe, has not served that function for many years....

During the campaign, Obama expressed concern about the number of African-American men in prison, and declared his intention to eliminate the disparity in sentences for crack and powder cocaine.  This policy goal, recommended for many years by the U.S. Sentencing Commission but stubbornly resisted by Congress, could be advanced by a few judicious grants of clemency to crack defendants who have served many years in prison and have been recommended for release by the prosecutor or the sentencing judge....

In a perfectly just system of laws there is no need for pardon. Ours falls far short of that.  Justice Anthony M. Kennedy has observed that "a people confident in its laws and institutions should not be ashamed of mercy."  We hope that Obama is of like mind, and that he will take steps to reinvigorate the pardon power by shoring up the system for administering it.

Regular readers know that I have been beating the drum for President Obama to start making use of his pardon power within hours of his taking the oath.  As the second month of the Obama presidency begins, we have already seen no shortage of bold action by the new President to address perceived injustices (closing GTMO) and to help those in need due to imperfect decisions (various bailouts).  I sincerely hope that just a little dusting of hope and change will come to the federal criminal justice system sooner rather than later.  As Love and Stanish suggest, just a few strategic clemencies could go a very long way in this regard.

Some recent related posts:

• Is it too early to start demanding President Obama use his clemency power?
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• Washington Post urges Prez Obama to do better on clemency
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• Inaugural rhetoric about freedom and liberty in prison nation
• Taking stock of President George W. Bush's clemency record
• Are the Border Agents the only federal offenders for whom President Bush feels compassion?
• "Compassionate Conservatism, My Ass"
• A request for a commutation for Weldon Angelos 
• What might 2009 have in store for . . . executive clemency? 

Latest, greatest federal sentencing data run from USSC

The US Sentencing Commission has some new post-Kimbrough/Gall sentencing data now up on its website. The USSC's updated data report, which can be accessed here, is described this way:

Fiscal Year 2008 Post-Kimbrough/Gall Data Report: An updated set of tables presenting final data on fiscal year 2008 cases sentenced on or after December 10, 2007 through September 30, 2008. This report was prepared using data received, coded, and edited by the Commission by February 10, 2009.

Notably, the new data continue to show that ust under 60% of all post-Gall sentences are now within the calculated guidelines range, though this fact is mostly a product of prosecutors requesting a below-range sentence in more than 25% of all cases.  And, as has always been the reality in the federal sentencing system, one can identify a number of large inter-circuit and inter-district variations in how many sentences fall within or outside calculated guideline ranges.

Long and thoughtful ACCA analysis by Eleventh Circuit

The Supreme Court in a series of recent opinions has provided new wisdom on what sorts of prior offenses qualify as a "violent felony” under the Armed Career Criminal Act.  Today, the Eleventh Circuit has a long and thoughtful discussion of all the new ACCA jurisprudence via a decision in US v. Harrison, No. 08-12636 (11th Cir. Feb. 19, 2009) (available here).  Harrison addresses the "question of whether a prior state conviction for violating subsection 2 of Florida’s willful fleeing statute" qualifies as a violent felony under ACCA.  Here is one of many statute observations from the Eleventh Circuit's analysis:

A closer examination of James and Begay demonstrates that Chambersis simply the latest in a line of Supreme Court cases that have used hard data to assist in making risk assessments under the ACCA’s residual clause.  Although calculating risk “does not require metaphysical certainty,” James, 127 S. Ct. at 1597, it appears that statistical evidence now plays a role in assessing risk for non-enumerated crimes under the residual clause [used in ACCA to define what qualifies as a "violent felony"].

Will AG Holder urge the criminal justice system to "examine its racial soul"?

As detailed in this CNN article, Attorney General Eric Holder gave his first major speech yesterday, and it was a barn-burner about race relations and race discussions in the United States.  Here is how the CNN piece describes the speech:

In a blunt assessment of race relations in the United States, Attorney General Eric Holder Wednesday called the American people "essentially a nation of cowards" in failing to openly discuss the issue of race.  Eric Holder spoke to an overflowing crowd for Black History Month at the Justice Department Wednesday.

In his first major speech since being confirmed, the nation's first black attorney general told an overflow crowd celebrating Black History Month at the Justice Department the nation remains "voluntarily socially segregated."

"Though this nation has proudly thought of itself as an ethnic melting pot, in things racial we have always been and continue to be, in too many ways, essentially a nation of cowards," Holder declared.

Holder urged Americans of all races to use Black History Month as a time to have a forthright national conversation between blacks and whites to discuss aspects of race which are ignored because they are uncomfortable.

The full text of this interesting speech can be accessed at this link. Notably, crime (but not punishment) is mentioned briefly toward the end of the speech in this somewhat peculiar paragraph:

And today the link between the black experience and this country is still evident.  While the problems that continue to afflict the black community may be more severe, they are an indication of where the rest of the nation may be if corrective measures are not taken.  Our inner cities are still too conversant with crime but the level of fear generated by that crime, now found in once quiet, and now electronically padlocked suburbs is alarming and further demonstrates that our past, present and future are linked. It is not safe for this nation to assume that the unaddressed social problems in the poorest parts of our country can be isolated and will not ultimately affect the larger society.

I find it is telling and disappointing that racial disparities in state and federal criminal justice systems (and the related problem of mass incarceration for young black men) do not get mentioned by the nation's top law enforcement officer when calling upon the county to "examine its racial soul."  As everyone who works in criminal justice systems know, that racial soul is on full display in criminal courts and in prisons and jails every day.  As I have been saying for years (examples here and here), the reality of racial disparities in modern crime and punishment demands that criminal justice reforms should and must be at the heart of any serious modern civil rights movement.

I am encouraged that the new AG wants Americans to have frank discussions about race in the United States.  I hope he will show he is willing to stimulate hard conversations talking bluntly in future speeches about the racial realities of modern crime and punishment.

Some related posts:

• Two potent new reports on race and the drug war
• Examining the disconcerting realities of racial disparities
• Another strong piece about race and justice
• New JPI report on racial disparities in incarceration
• Reflecting on race and criminal justice realities to honor MLK's legacy
• Can and will Iowa's "Minority Impact Statement" legislation help with criminal justice disparities?
• Should criminal justice reform be the new civil rights movement?

Report documents new demographics of federal criminal justice system

As detailed in this Los Angeles Times article, a new study details that Latinos now comprise the largest group of offenders prosecuted in federal court:

Driven by a crackdown on illegal immigration, Latinos now make up by far the largest percentage of offenders sentenced in federal courts, according to a study released Wednesday.

Latinos accounted for 40% of all people sentenced to federal crimes in 2007, even though they made up only 13% of the U.S. adult population, according to the study by the nonpartisan Pew Research Center. In 1991, Latinos made up 24% of all sentenced offenders.

The study's authors, Mark Hugo Lopez and Michael T. Light, attribute the change in part to the increase in the undocumented immigrant population and to federal enforcement programs such as Operation Gatekeeper, which targeted illegal crossers along the Southwest border.

In 2007, nearly half of Latino offenders were sentenced for an immigration offense, up from 1 in 5 in 1991. Immigration offenses represented nearly a quarter of all federal convictions in 2007, up from 7% in 1991. "There was a very sharp rise of immigration offenses as a share of all offenses," said Paul Taylor, executive vice president of the Pew Research Center.

The full report, which is titled "A Rising Share: Hispanics and Federal Crime," is available at this link

District judge asks questions about apparent "don't tell" sentence reduction

The Boston Globe has this new report on a fascinating federal sentencing case that could perhaps provide the basis for a hot new screenplay that could be titled "Sex, Lies and Variances."  Here are some of the juicy details:

The chief judge of the US District Court in Boston today ordered federal prosecutors to justify why they are recommending that an alleged Canton prostitute receive a sentence of only six months in jail for extorting $280,000 in cash from a prominent Boston-area businessman in exchange for keeping their liaisons secret.

Chief District Court Judge Mark L. Wolf said today that neither US Attorney Michael J. Sullivan's office nor lawyers for the alleged prostitute have explained why the woman, Michelle Robinson, 29, should receive a sentence that would likely result in her being immediately freed....

That sentence "represents a significant downward departure" from the 33 to 41 months that probation officials have calculated would ordinarily be recommended for the defendant under federal sentencing guidelines, Wolf said.  The judge said that since neither prosecutors nor Robinson's lawyers have responded to an earlier court order to explain the sentence, "it is now uncertain whether the court is likely to accept the plea agreement."  He gave prosecutors until noon Thursday to file papers justifying the proposed six-month sentence.  Robinson's lawyer can also file an explanation....

The criminal case against Robinson was the subject of a Globe story Tuesday in which several legal specialists criticized prosecutors' efforts to keep the businessman's name a secret.  Among the terms of the tentative plea agreement is an extraordinary provision: Robinson would be forbidden from disclosing the businessman's name for the three years that she is on supervised release.

House Republicans file brief in support of 30-year mandatory minimum sentence in Farley

Regular readers may recall a notable district court opinion from last September (discussed in this post), which found unconstitutional a mandatory minimum term of 30 years imprisonment for a defendant who travelled across state lines in an effort to engage in sexual activity with a fictious ten-year old.  The case, US v. Farley, is now on appeal before the Eleventh Circuit, and this new post from the CQ Legal Beat reports on a notable new filing in this case:

A group of House Republicans filed a brief Wednesday challenging a federal District Court's ruling that a 30-year mandatory minimum prison sentence was a cruel and unusual punishment for a man convicted of crossing state lines to have sex with a minor.

That automatic mandatory minimum prison sentence was included in the Adam Walsh Act passed by Congress to combat child sex abuse. But in September 2008, Judge Beverly B. Martin of the Northern District of Georgia ruled that penalty was unconstitutional as applied to Kelly Farley, a 39-year-old Texas man convicted of making plans to molest a 10-year-old girl.

In the brief filed with the U.S. Court of Appeals for the 11th Circuit, the GOP lawmakers say they "are particularly concerned with the lack of respect and improper deference afforded to Congress by the district court in the case" and suggest the lower court's ruling "threatens to abridge Congress' authority to impose punishment that it deems appropriate to the corresponding offense."

Thanks to the folks at CQ, the full brief can be accessed at this link.  Fascinating stuff. 

Seventh Circuit gives short shrift to drug dealer's Heller claim

Though the result is not at all surprising, the Seventh Circuit's decision today discussing Heller is still notable for how (and how quickly) it disposes of a drug dealer's effort to claim that his home gun possession was constitutionally protected.  Here is the Heller discussion in the ruling (per Judge Easterbrook) in US v. Jackson, No. 07-3849 (7th Cir. Feb. 18, 2009) (available here):

The Court said in Heller that the Constitution entitles citizens to keep and bear arms for the purpose of lawful self-protection, not for all self-protection.  Jackson was distributing illegal drugs (cocaine and unlicensed dextromethorphan hydrobromide tablets) out of his home.  The Constitution does not give anyone the right to be armed while committing a felony, or even to have guns in the next room for emergency use should suppliers, customers, or the police threaten a dealer’s stash.  Jackson says that he lived in a dangerous neighborhood and wanted to protect himself from burglars and other marauders.  That may be so, but his decision to operate an illegal home business also matters.  Suppose a federal statute said: “Anyone who chooses to possess a firearm in the home for self-protection is forbidden to keep or distribute illegal drugs there.” Such a statute would be valid, as Jackson’s lawyer conceded. And if Congress may forbid people who possess guns to deal drugs, it may forbid people who deal drugs to possess guns. The statements “if you have a gun, you can’t sell cocaine” and “if you sell cocaine, you can’t have a gun” are identical.

Some related Second Amendment posts:

• What if no lower court judges participate in a "Second Amendment Revolution"
• Has there been a single pro-gun-rights rulings in lower courts since Heller?
• An argument that the Second Amendment and Heller should help Weldon Angelos
• Starting to make the Second Amendment case for Plaxico Buress
• "The New Second Amendment: A Bark Worse Than Its Right"
• What might 2009 have in store for . . . Second Amendment jurisprudence?

UPDATE:  Eugene Volokh astutely discusses this Seventh Circuit opinion in this post.

The US Department of Justice's take of ARRA stimulus

This new press release from the US Department of Justice details the monies that will be going to crime-fighting programs as part of the American Recovery and Reinvestment Act of 2009.  Here is how the press release starts:

Today President Obama signed the American Recovery and Reinvestment Act of 2009 (H.R.1), which includes $4 billion in Department of Justice grant funding to enhance state, local, and tribal law enforcement efforts, including the hiring of new police officers, to combat violence against women, and to fight internet crimes against children, the Department of Justice announced.

“This funding is vital to keeping our communities strong,” said Attorney General Eric Holder. “As governors, mayors, and local law enforcement professionals struggle with the current economic crisis, we can’t afford to decrease our commitment to fighting crime and keeping our communities safe. These grants will help ensure states and localities can make the concerted efforts necessary to protect our most vulnerable communities and populations.”

Some recent related posts:

• Does the stimulus bill allow further prison growth in incarceration nation?
• Interesting reflections on Obama appointees from drug policy reformers
• The state of cost problems in the states of prison nation
• Will a commitment to "transparency and the rule of law" extend to DOJ in the new administration?
• The Obama Administration moves forward (on-line) with its "change" agenda for criminal justice
• Are we on the verge of a new changed era concerning federal sentencing law and policy?

Federal sentencing fall-out from juve sentencing corruption

Regular readers will recall last week's remarkable story of two Pennsylvania state judges who to plead guilty to taking millions in kickbacks to send teenagers to two privately run youth detention centers.  This new local story reports on a fascinating federal sentencing echo from that case:

The fallout from disgraced Luzerne County Judge Mark A. Ciavarella Jr.’s handling of juvenile court cases has now spread to the federal court system.  On Tuesday, a lawyer for Justin Plesh, a Hazleton man awaiting sentencing in a marijuana trafficking case in U.S. District Court, asked that a marijuana possession case handled by Ciavarella in 2003 not be considered in determining Plesh’s sentence under federal guidelines.

Plesh was 16 in May 2003 when Ciavarella sent him to a juvenile detention center, according to a motion filed by his federal public defender.... If the juvenile court case is counted against Plesh in the federal case, the low end of sentence would increase by 13 months, the motion says. Plesh faces a maximum of five years in prison.

The motion argues that the federal court should nullify Ciavarella’s rulings due to his recent guilty plea to accepting $2.6 million in kickbacks in connection with juvenile-detention contracts and a review of all his juvenile court cases ordered by the state Supreme Court.  Ciavarella failed to inform hundreds of juvenile defendants of their rights to an attorney, according to a lawsuit filed by the Juvenile Law Center, a Philadelphia advocacy group.... “It is respectfully requested that this Honorable Court issue a ruling that unequivocally states that none of the actions of Mark A. Ciavarella while he was masquerading as an honest juvenile judge be given any recognition, force or effect,” the motion says.

States considering laying off the death penalty during tough economic times

This new AFP story, headlined "US states may axe executions to cut costs," effectively reviews the growing talk of abolishing the death penalty in a few states:

In an unexpected twist to the economic crisis, several US states are weighing whether to abolish the death penalty as the execution process proves too great a drain on dwindling resources.

Death penalty laws remain on the books of 36 of the 50 US states, and capital punishment is supported by some two-thirds of the American public. But across the nation, states as diverse and far-flung as Montana, Kansas, New Mexico and Maryland are among those actively considering abolishing capital punishment in a bid to overcome ballooning budget shortfalls....

Most of the states involved in the move are those which have only executed a few people — five or less — in the past 30 years since capital punishment was reinstated in 1976.

The irony here, of course, is that thos states seriously considering death penalty repeals really do not spend that much money on their capital punishment systems.  With few on death row and fewer executions, the costs savings from a repeal are not like huge (though I suppose every penny counts these days).

Of particular note here is that the state with the biggest current budget problems, California, is also the state that wastes the most resources on a bloated capital punishment system.  As detailed in DPIC data here and here, California has over 650 persons on its death row, but has only executed 13 persons in the modern capital punishment era.  And yet I have seen no talk of laying off the death penalty in California, even as the state's Governor prepares to lay off 20,000 state employees.

More back-story on President Bush's resistance to concluding clemencies

The New York Times has this new story with more on Dick Cheney major (failed) final push to get President Bush to pardon Scooter Libby (basics here).  Among the notable aspects of this Times coverage are indications that President Bush was "frustrated by a deluge of last-minute pardon requests from other quarters."  Here is some of this reporting:

Two former White House officials familiar with the thinking of both men said that Mr. Bush had been generally overwhelmed and surprised by the last-minute lobbying for pardons, but that he had believed he owed it to Mr. Cheney to listen to him as he made one last case for Mr. Libby over the course of several long discussions.

Sharing details of the private talks on the condition of anonymity, the former officials said Mr. Bush had not been comfortable going further than his initial commutation of Mr. Libby’s prison sentence in 2007....

Former White House officials said that Mr. Bush had seriously weighed Mr. Cheney’s arguments but that it was always a long shot that Mr. Bush would pardon Mr. Libby. He was well known to avoid revisiting decisions, and did not grant pardons easily. “He was very stingy with pardons,” said Andrew H. Card Jr., his former chief of staff.

Kenneth L. Adelman, another Bush supporter turned critic who has called for a pardon for Mr. Libby, said he believed “Bush got it in his head that he did not want to leave office like Clinton did,” a reference to the disputed pardons that President Bill Clinton issued in his final hours.

"How Prosecutor Elections Fail Us"

The title of this post is the title of this new piece on SSRN from Professor Ron Wright.  I heard Ron present this work at an early stage, and it mines so many interesting and important issues from fresh perspectives.  Here is the abstract:

There are several methods for holding prosecutors accountable in this country.  Judges enforce a few legal boundaries on the work of prosecutors.  Prosecutors with positions lower in the office or department hierarchy must answer to those at the top.  But none of these controls binds a prosecutor too tightly.  At the end of the day, the public guards against abusive prosecutors through direct democratic control.

Does the electoral check on prosecutors work?  There are reasons to believe that elections could lead prosecutors to apply the criminal law according to public priorities and values.  Voters choose their prosecutors at the local level, and they care enough about criminal law enforcement to monitor the work of an incumbent.  The conditions, in some ways, are promising.

Yet the empirical reality of prosecutor elections is not so encouraging.  A national sample of over 2000 outcomes in prosecutor elections-described here for the first time-reveals that incumbents do not lose often.  The principal reason is that challengers do not come forward very often, far less often than challengers in state legislative elections.  Uncontested elections short-circuit the opportunities for voters to learn about the incumbent's performance in office and to make an informed judgment about the quality of criminal enforcement in their district.

Even in those exceptional campaign settings when the incumbent prosecutor faces a challenge and is forced to explain the priorities and performance of the office, elections do not perform well. This article surveys the typical rhetoric in prosecutor election campaigns, drawing on a new database that collects news accounts of candidate statements during prosecutor elections.  Sadly, these campaign statements dwell on outcomes in a few high visibility cases, such as botched murder trials and public corruption investigations.  Incumbents and challengers have little to say about the overall pattern of outcomes that attorneys in the office produce or the priorities of the office.

Border agents, whose sentences were commuted by President Bush, released from prison

CNN provide this update on the latest development in an oft-blogged case involving two former federal border agents.  Here are the basics:

Two former U.S. Border Patrol agents -- whose cases became flashpoints in the controversy over border security -- were released early from prison Tuesday, one of their attorneys and a congressman said. The agents were convicted in 2006 of shooting and wounding an unarmed illegal immigrant and then covering it up.

President George W. Bush issued commutations for both men during his final days in office last month. Ignacio Ramos and Jose Compean had received 11- and 12-year prison sentences, respectively.

Some prior posts about the Border Agents case and the clemency grant by President Bush:

• Bipartisan call for commuting border agent sentences
• Reports on Senate hearing on Border Agent case
• The furor over border agents' long sentences
• Equal justice or just the realities of ratting out?
• Using the border agent case as a catalyst for federal sentencing reform
• Harsh border agent sentences producing half-truths
• Are the Border Agents the only federal offenders for whom President Bush feels compassion?
• "Compassionate Conservatism, My Ass"

Looking at the interaction of religious appeals and capital sentencing

Just yesterday I noted here the frequent intersection of religion and the death penalty, and last month I noted in this posta new cert petition concerning issues raised by juror consideration of biblical passages during the penalty phase of a capital trial.   Readers engaged by these stories should check out this new short piece recently appearing on SSRN, titled "Book Review: Religion in Criminal Justice by Monica K. Miller."  This review is authored by Geraldine Szott Moohr and Roger Sherman, and here is the abstract:

Do appeals to religious values during closing arguments of capital cases influence juror's decisions to impose the death penalty?  Based on experiments with mock jurors, Monica K. Miller is willing to conclude that religious appeals do not interfere with jurors' sentencing decisions.  But the religious appeals she presents to mock jurors are based on weak written summaries of cases rather than, say, dramatic presentations, so their failure will not support a general conclusion about the effect of religious appeals.  More accurately, her studies show that religious appeals — as represented in written summaries — do not interfere with juror's sentencing decisions in death penalty cases.  Miller's work provides preliminary results, and the main question about effects of appeals to religious values remains unanswered.

Seventh Circuit approves teaching felons a lesson about where they keep illegal firearms

The Seventh Circuit returns from a long weekend with three published sentencing opinions, and the most intriguing of the bunch is US v. Wise, No. 08-2794 (7th Cir. Feb. 17, 2009) (available here). Here is how the opinion starts:

It is an event almost too painful to recount: a four-year-old discharged a gun he found lying around the house, killing his two-year-old cousin.  The inaptly named Anthony Wise is the person who left the loaded gun on a window ledge behind a computer.  As it turns out, Wise was even extra unwise because he was a convicted felon who could not legally possess a gun.  As a result of all this, Wise was charged and convicted for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).  His sentence was enhanced because the judge found that he had also violated an Illinois statute prohibiting child endangerment.  Wise was sentenced above the guideline range to a term of 120 months in prison.  He contends the enhancement was improper and that the sentence is unreasonable.

In light of this opening paragraph, few will be surprised to learn the word that ends the opinion: "AFFIRMED."  A justification given by the sentencing judge for the statutory maximum sentence was that anything less "would not send the right signal in terms of deterrence," and the Seventh Circuit panel in turn decides it "cannot say there was an abuse of discretion."

Is career diversity a bad thing in the highest court in the land?

Adam Liptak has this great piece in today's New York Times, headlined " "Roberts Sets Off Debate on Judicial Experience." Here are snippets:

For the first time in its history, every member of the United States Supreme Court is a former federal appeals court judge. Chief Justice John G. Roberts Jr., in a lively and surprising talk a couple of weeks ago, said that development might be a good thing.

Over the life of the Supreme Court, its members were quite likely to be former governors, legislators, cabinet members, law professors and practicing lawyers. That mix of backgrounds and expertise might strike some as valuable, but the chief justice suggested that it tended to inject policy and politics into an area properly reserved for the law.

As late as 1972, when Chief Justice Roberts’s predecessor, William H. Rehnquist, joined the court as an associate justice, former federal judges were in the minority.  As a consequence, Chief Justice Roberts said, “the practice of constitutional law — how constitutional law was made — was more fluid and wide ranging than it is today, more in the realm of political science.”

Since then, Chief Justice Roberts continued, “the method of analysis and argument shifted to the more solid grounds of legal arguments. What are the texts of the statutes involved? What precedents control?” That move, he said, has resulted in “a more legal perspective and less of a policy perspective.”...

But there are reasons to question the chief justice’s conclusions. The political scientists who study such things say there is no empirical support for the notion that former judges are more apt to feel constrained by earlier rulings or to suppress their political views. “Former appellate court judges are no more likely to follow precedent or to put aside their policy preferences than are justices lacking judicial experience,” according to a study to be published soon in the University of Pennsylvania Law Review.

If Chief Justice Roberts was implying that the court became less political as the number of former judges on it rose, said Lee Epstein, who teaches law and political science at Northwestern and is one of the authors of the study, “the data don’t support it.”

And not everyone supports the idea that members of the court should have uniform backgrounds. The psychological literature demonstrates that “the more homogenous the group, the worse the quality of the decisions they make,” said Tracey E. George, a law professor at Vanderbilt and the author of a law review article about the consequences of promoting former judges to the Supreme Court.... 

Chief Justice Roberts did say that the current justices’ limited trial court experience was “an unfortunate circumstance” and “a flaw.”  Chief Justice Rehnquist tried to remedy that by once appointing himself to the trial bench in Virginia during a Supreme Court recess.  “He heard a case and issued the opinion,” Chief Justice Roberts recalled, “and was promptly reversed by the Fourth Circuit.”  He added, “Partly because of that, I can assure you that I am not going to appoint myself to the trial bench.”

As regular readers know, I have long complained about the absence of judges with trial court experience on the Supreme Court and I am a fan of a much more diverse SCOTUS bench.  Though I am not fully sold on Professor Adrian Vermeule argument in this article argues that the Surpeme Court should have at least one "lay Justice," I am suspect of the Chief's essential assertion that more Justices should be like him (and I am also disappointed by his unwillignness to experience the unique challenges faced by trial judges).

Some related old and new posts on judicial appointments:

• Does SCOTUS need a trial judge?
• Developing a SCOTUS short list of district court judges
• Insider myopia and the diverse benefits of a short bench
• Thinking creatively about different SCOTUS short lists
• Reflections on the politics of SCOTUS and personhood of its members
• Judging, politics, sentencing and elections
• Will the next SCOTUS nominee have any criminal law background?
• Brave New Justice and sentencing issues
• A modest(?) proposal for filling the bench from the ivory tower
• Urging President-elect Obama to elevate district judges to the circuit courts

Death penalty abolition becoming more realistic in a few western states

Though 2009 has already brought a large number of executions, it also has brought a lot more serious talk of the elimination of the death penalty in various states.  Today's abolition headlines come from states out west:

• From Montana, this local report details that after "a 90-minute, emotionally charged debate, the Republican-controlled state Senate [on Monday] endorsed a bill to abolish the death penalty in Montana."
• Fron New Mexico, this AP story reports that "Gov. Bill Richardson said Monday he has softened his stance on the death penalty and may sign a repeal bill if it reaches his desk."

Even VP Cheney couldn't convince President Bush to grant one more pardon

The New York Daily News has this notable new piece reporting that Dick Cheney made a major (but still failed) final push to get President Bush to pardon Scooter Libby. Here are some of the details:

In the waning days of the Bush administration, Vice President Dick Cheney launched a last-ditch campaign to persuade his boss to pardon Lewis (Scooter) Libby — and was furious when President George W. Bush wouldn't budge.

Sources close to Cheney told the Daily News the former vice president repeatedly pressed Bush to pardon Libby, arguing his ex-chief of staff and longtime alter ego deserved a full exoneration — even though Bush had already kept Libby out of jail by commuting his 30-month prison sentence. "He tried to make it happen right up until the very end," one Cheney associate said.

In multiple conversations, both in person and over the telephone, Cheney tried to get Bush to change his mind.... Several sources confirmed Cheney refused to take no for an answer.  "He went to the mat and came back and back and back at Bush," a Cheney defender said.  "He was still trying the day before Obama was sworn in."

After repeatedly telling Cheney his mind was made up, Bush became so exasperated with Cheney's persistence he told aides he didn't want to discuss the matter any further.  The unsuccessful full-court press left Cheney bitter.  "He's furious with Bush," a Cheney source told The News....

In July 2007, at Cheney's urging, Bush commuted Libby's 30-month prison sentence.  But he also said, "I respect the jury's verdict" and noted that his decision "leaves in place a harsh punishment" for the man often described as "Cheney's Cheney."  Libby was fined $250,000, and as a convicted felon, he has been disbarred from practicing law and cannot vote.

Notable briefing on fast-track disparity issue after Kimbrough

As I noted in this recent post, one (of many) persistent post-Booker jurisprudence hot-spots concerns whether defendants who are not within so-called "fast-track" districts should be eligible for comparable early-plea sentencing reductions when their cases are factually similar to those who get the benefit of such reductions in "fast-track" districts.  A helpful reader has recently sent along two notable briefs that talk through this important issue with lots of sophistication and also provide lots of original information and documents concerning "fast-track" practices.

The first document is an effective amicus brief, which can be downloaded below, that has recently been filed in the Seventh Circuit on these issues.  Here is the first paragraph of that brief:

The Supreme Court’s decision in Kimbroughgives sentencing courts discretion to correct for unwarranted disparities created by the Department of Justice’s (DOJ) selective use of fast-track plea bargaining in illegal reentry cases, whether implemented through U.S.S.G. § 5K3.1 or charge bargaining, for three reasons: (1) the disparities that result from U.S.S.G. § 5K3.1 are not mandated by Congress; (2) the Sentencing Commission did not act in its characteristic institutional role when promulgating § 5K3.1; and (3) Congress certainly never “warranted” the disparities created by charge-bargaining fast-track programs.

Download Seventh Cir Fast track Amicus with Appendix

The second document is an effective cert petition, which can be downloaded below, that documents all the different ways these issues have been unpacked in the lower courts.  Here is the first paragraph of the statement of the case from the cert petition:

This case raises an important question over which Circuit Courts of Appeals are split: whether a district court has sentencing discretion to consider punishment disparities among defendants guilty of similar conduct and with similar criminal histories, when the disparities are caused by the Government’s “early-disposition” or “fast-track” policy designed to serve the Government’s purported administrative interest, but are applied sporadically in only a small minority of districts around the country.

Download Cert Petition on fast track

Making a plea to the faithful in an attempt to end the death penalty

Perhaps some First Amendment scholars can help me figure out whether I should have constitutional concerns about this new AP story from Maryland, headlined "O'Malley asks churches to help end death penalty."  Here is how the article starts:

Gov. Martin O'Malley said today his effort to get the votes to repeal capital punishment in Maryland "is not done," and he asked the religious community to help by petitioning lawmakers facing a difficult decision.  "I need your help. I really and truly do on this death penalty legislation," O'Malley told about 300 people attending the African Methodist Episcopal Church Legislative Day. "It is not done."

The governor also urged repeal supporters not to take any votes for granted on the issue.  "I need your help writing letters.  I need your help persuading.  I need your help even talking to delegates and senators that you may think are probably already with us," O'Malley said. "You never really know."

I am not an expert on church-state issues, and (as detailed in lots of prior posts) there has long been a lot of interesting intersection of capital punishment issues and religious issues.  But something just feels a little hinky about a sitting Governor making a full-throated appeal to church members to actively campaign to support his latest legislative initiative.

Some recent posts about the death debate in Maryland:

• Maryland commission urges abolition of state's death penalty
• As goes Maryland, so goes the nation on capital punishment?
• Dueling editorials about the death penalty debate in Maryland
• Gov pledges to do "everything" to abolish capital punishment in Maryland

Some related posts on religion, politics and the death penalty:

• Candidates asked "what would Jesus do" about the death penalty
• Fascinating NY Times piece on victims, religion and the death penalty
• Senator Brownback questions death penalty and culture of life
• Debating religion and the death penalty
• New DPIC page on religion and the death penalty
• New resource examining religion and the death penalty
• Remarkable circuit judge speech on capital punishment at mass
• Sister Prejean's powerful perspective
• "Religion and the Death Penalty: Can't have one without the other?"

Michael Phelps to avoid state prosecution according to local authorities

This just in from the news wire:

Michael Phelps will not be charged with marijuana possession, though the Olympic champion swimmer admitted to being pictured holding a marijuana pipe at a Columbia house party in November, Richland County Sheriff Leon Lott announced today.

Speaking now during a press conference at the Sheriff's Department headquarters, Lott said his investigators couldn't find enough evidence to charge anyone — including Phelps — who attended the party with any crime.

Lott had declined to say in recent days whether he would press charges, though legal observers interviewed by The State said charges were unlikely because Phelps was not caught by authorities committing a crime and that credible witness would be difficult to find, making a court case difficult to prove under South Carolina law.

Some related posts:

• Is golden boy Michael Phelps going to be charged with a state drug crime?
• "Michael Phelps, Hypocrisy, and American Drug Policy"
• Should those seeking drug policy reform hope that Michael Phelps get prosecuted?
• Michael Phelps punished by USA Swimming with suspension

An Ohio example of how the prison economy budget can mix up the usual political rhetoric

In my own home state of Ohio, a very tight budget and a growing prison population have created a fascinating and dynamic set of political and practical conversations about state sentencing reform.  This local article today, headlined "Seitz offers plan for prison reform: Overcrowding strains budgets," details some of the on-going debate and reveals why we are not quite seeing politics as usual:

State Sen. Bill Seitz says sweeping prison reform is the only way to reduce overcrowding and ease strain on Ohio's incarceration budget.  The conservative Green Township Republican last week introduced Senate Bill 22, which would allow more minor offenders to be sentenced to community programs, give more good-time credit to inmates, give the parole authority the ability to deal with parole violators and create sentencing alternatives for parents convicted of failing to pay child support.

"While it is important that the Legislature continues to pass strong laws to help keep our communities safe, this effort must be balanced with policies that work to responsibly reduce Ohio's prison population and its financial impact on taxpayers across the state," Seitz said....

Hamilton County Prosecutor Joe Deters stopped short of criticizing a fellow Republican, but said the bill would compromise safety and if the budget needs relief, cuts should be made elsewhere. "The problem with any of these laws is they are entirely budget driven, and not safety driven," Deters said.

"Bill is one of the best legislators I have ever met, he is very smart and he is looking for ways to get money out of the budget, but he is looking in the wrong place," Deters said. "The first job of government is to protect its citizens, and a viable prison system is critical to community safety."

Seitz, who served nearly eight years in the Ohio house before moving to the Senate in 2007, said reform has been needed for years. But the budget crisis means the legislature has to act now, he said.

Seitz's bill mirrors proposals by the [Democratic] Strickland administration.  Gov. Ted Strickland's two-year budget, which must be passed by June 30, proposes spending $3.65 billion in fiscal years 2010 and 2011 to run prisons. Collins said there is about $10 million in the state budget for counties to fund community-correction programs, including halfway houses....

The Seitz bill varies slightly from Strickland's proposal, reducing earned credit to five days a month instead of seven. Violent offenders and sex offenders would not be eligible for good-time credits. "There are many things for Democrats and Republicans to fight about in this budget," Seitz said. "I hope this is not one of them."

Seitz said the reforms do not compromise safety. "We all want to increase the penalties for this and that," Seitz said. "And it might be warranted, but where is the money? The prison budget has been cut, cut, cut." Something has to give, he added....

Seitz said sentencing disparities for people convicted of crack cocaine versus powder cocaine crimes must be corrected, that judges need more authority over judicial release, and that inmates at the end of their sentences should transition into community-based correctional facilities....

Hearings could start as soon as next month, Seitz said. "Until people put their money where their mouth is on criminal sentences, there is no other choice," Seitz said.

Lots of AWA and SORNA news and notes

Over at Sex Crimes, Corey Yung has lots of new posts reporting on lots of new developments involving the Adam Walsh Act and the Sex Offender Registration and Notification Act (which was a part of the AWA).  This local newspaper article from California, headlined "Judge rules against federal sex offender registration," discusses the federal district court ruling that Corey spotlighted in this post in which he concludes that "we have reached the point where a critical mass of courts have recognized that there are genuine Commerce Clause problems with" SORNA.

In Alabama, the Kennedy case did not end talk of the death penalty for child rape

Apparently, it takes a while for a SCOTUS decision about constitutional limits on the death penalty to make its way down to Alabama.  That conclusion is the only way I can fully make sense of this local Alabama story, headlined "Capital Punishment for Certain Pedophiles?".  Here are excerpts from the piece:

Pedophiles who rape young children could face the death penalty in Alabama…if one state lawmaker gets his way.  State Representative Steve Hurst of Munford in Talladega County is proposing a new law that would allow a judge to use capital punishment if someone older than 21 is convicted of raping a child 6 years old or younger.

The death penalty is a punishment that — so far — has been reserved only for murderers. Should child molesters now be included?

With the growing number of child sex predators, Hurst says capital punishment is an appropriate sentence for adult rapists older than 21 who violate children 6 years old or younger. “You take a child who’s completely helpless. They have no way to defend themselves. And someone does something of this nature to them, you have literally destroyed that child for the rest of their life,“ says Hurst....

Introducing capital punishment for some might not be a fix all, but Hurst says, it’s at least a start. “You’ve got to keep knocking at the door, or you can’t never get in.“ Hurst is still waiting to schedule this bill’s first hearing before the Alabama Legislature.

Of course, last summer in the Kennedy case, the Supreme Court declared unconstitutional a Louisiana law making child rape a death-eligible crime.  This Alabama story does not even mention the Kennedy case, and I cannot help but wonder if Representative Hurst and his staff realize that the Justices have already declared unconstitutional the bill he has proposed.  

Then again, maybe Representative Hurst knows all about the Kennedy case and seeks to be at the forefront of a constitutional vanguard here.  In the absence of a constitutional amendment, only way for capital child rape to become constitutional would be through a new evolving national consensus in favor of such a punishment.  If Representative Hurst can get his bill passed in Alabama and then encourage a few dozen other states to pass similar bills, he might lay a foundation for the Supreme Court to revise its interpretation of the "evolving standards of decency" that serve as its jurisprudential touchstone for the Eighth Amendment.

Lots of interesting crime and punishment reading in the Sunday papers

A diverse array of interesting crime and punishment articles caught my eye in my review of the Sunday headlines.  Here are links to some of what I am reading from various papers this morning:

• "White-collar defendants are given some slack in reporting to federal prison"

• "Wisconsin's juvenile justice system tested by child killers"

• "Getting inside sex offenders’ brains"

• "Spiritual Advisor To Mother Teresa Gets 25-Year Sentence For Sex Crimes"

• "Firing squads are more humane, experts say"

Latest official data on implementation of retroactive crack guidelines

The US Sentencing Commission has available here the latest updated data on the retroactive application of its revised crack sentencing guidelines. Here is how the data is described:

A set of tables presenting preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2).  These cases involve retroactive application of the crack cocaine amendment to the sentencing guidelines (Amendment 706, as amended by Amendment 711) which became effective on November 1, 2007 and which was made retroactive effective March 3, 2008.  The data in this report represents those motions decided by the courts through January 21, 2009 and for which data was received, coded, and edited by the Commission as of January 26, 2009.

As I have said before, I continue to be impressed and somewhat surprised by how few problems there have been applying the new crack guidelines retroactively, especially given what a huge fuss was made by the Justice Department about the idea before it became a reality back in March.