Sentencing Law and Policy

"The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants"

The title of this post is the title of this interesting-looking new piece on SSRN from Adam Gershowitz and Laura Killinger. Here is the abstract:

Although dozens of scholars have documented the appalling underfunding of indigent defense in the United States, virtually no attention has been paid to the overburdening of prosecutors. In many large jurisdictions, prosecutors handle caseloads that are as large as those handled by public defenders. Counter-intuitively, when prosecutors shoulder excessive caseloads, it is criminal defendants who are harmed.

Because overburdened prosecutors do not have sufficient time and resources for their cases, they fail to identify less culpable defendants who are deserving of more lenient plea bargains. Prosecutors also lack the time to determine which defendants should be transferred to specialty drug courts where they have a better chance at rehabilitation.  Overwhelmed prosecutors commit inadvertent (though still unconstitutional) misconduct by failing to identify and disclose favorable evidence that defendants are legally entitled to receive.  And excessive prosecutorial caseloads lead to the conviction of innocent defendants because enormous trial delays encourage defendants to plead guilty in exchange for sentences of time-served and an immediate release from jail.  This article documents the excessive caseloads of prosecutors’ offices around the country, and it demonstrates how the overburdening of prosecutors harms criminal defendants, victims, and the public at large.

Maryland legislature moving forward on branding sex offender drivers' licenses

As this AP article details, "Maryland senators have passed legislation that would add special coding to sex offenders' driver's licenses."  Here are the basic details:

Senators passed legislation with the provision on Saturday. Sen. Richard Colburn, R-Dorchester, sponsored the amendment, which requires the marking to be done in a way that only law enforcement can understand. He says it would alert police to ask more questions if they stop a registered sex offender with a child.

Opponents say adding the markings is akin to a "scarlet letter" and will make it tougher for those on parole to rejoin society. They add it could drive more sex offenders underground as they try to avoid registration requirements.

"Obama should exercise the pardon power"

The title of this post is the headline of this new commentary in the National Law Journal from Kenneth Lee, who served as an associate counsel to President George W. Bush and assisted with presidential pardons. Here are some excerpts:

President Obama's inaction on pardons is understandable. President Ford grievously damaged his re-election prospects by pardoning Nixon. And President Clinton's midnight pardon of fugitive financier Marc Rich generated a bitter and bipartisan backlash. For presidents, it may seem that there are substantial political liabilities but no real short-term benefits in issuing pardons.

Yet the pardon power is an important tool to provide a second chance for hard-luck Americans as well as to redeem the reputations of successful individuals who continue to bear the burden for mistakes made years ago. Obama should not hesitate or further delay exercising this power with vigor....

Despite the positive impact that clemency can have on so many lives, presidents often are loath to exercise their pardon power vigorously due to potential political liability. Understandably, no president wants to have a Willie Horton on his hands if a freed felon commits another crime. And after Marc Rich's pardon, presidents also fear being accused of a quid pro quo if the recipient is politically well-connected.

But these fears of political backlash are greatly exaggerated. Bush and Clinton each granted hundreds of acts of clemency, but there have not been any reported cases of recidivism. This sterling record can be attributed to stringent vetting of potential candidates....

In recent months, Obama has learned to appreciate the expansive reach of executive power. He has made recess appointments of stalled nominees and issued an executive order that was critical to the passage of the health care bill. He should now exercise the most plenary of presidential powers and issue his first batch of pardons. With the mere stroke of his pen, Obama has the power to bring hope to numerous Americans seeking a second chance.

As regular readers know, I have been urging President Obama to exercise his clemency power with vigor since literally his very first day in the Oval Office:

• 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
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• Commentary on how celebrity status effects clemency commitments
• Inaugural rhetoric about freedom and liberty in prison nation
• "Grandmother Will Mark President's Day By Petitioning Obama To Commute Her 27-Year Prison Sentence For Non-Violent Crime"
• Obama as Scrooge: no Christmas clemency grants
• Fitting complaints about an ugly clemency scoreboard: "Turkeys 2, humans 0"
• The true sentencing turkeys on this Thanksgiving eve
• Justified complaints that Obama's first pardon will be of a turkey
• "President Barack Obama proving stingy with his pardon power"
• Notable press stories noting Obama's lack of clemency action
• A simple plea for Prez Obama: grant at least a single clemency in your first 100 days

Post number 10,001 of this blog...

will apparently be this post noting this this is my 10,001 post since starting this blog just under six years ago with this first post on May 14, 2004.  That first post concerned the then-new report issued by the commission created by then-Massachusetts Governor Mitt Romney concerning how to try to create a nearly "foolproof" death penalty system for the state. 

As the early archives of this blog show, my initial plan for this space was to do just a few posts each week with links to new reports and articles that did not get much attention (and were hard to find) elsewhere.  In fact, over my first six weeks of blogging, I averaged only three posts per week, and only two of my first 18 posts referenced a court ruling (one of which was this post speculating about a possibly big pending SCOTUS case).

But six weeks into this blogging experiment, the Supreme Court handed down its remarkable Blakely ruling, and this blog took a more manic (and case-centric) turn.  Perhaps fittingly, I am noting a blogging milestone one post later than I expected because I had to give my 10,000th post to announcing the official retirement of whom I regard to be perhaps the "greatest" sentencing Justice of all time.

It's official: Justice John Paul Stevens is calling it quits this summer

This AP report provides the text of Justice John Paul Stevens' retirement letter to President Barack Obama, which reads as follows:

Having concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court's next term, I shall retire from regular active service as an Associate Justice, under the provisions of 28 U.S.C. 371 (b), effective the next day after the Court rises for the summer recess this year.

I think it is notable (and astute) that Justice Stevens reports that his retirement will be effective as of this summer, not when a replacement is confirmed.  This means that, come July, the Supreme Court will be short a Justice unless and until a new Justice is confirmed.

This is obviously huge legal (and politicial) news for lots and lots and lots of reasons.  But in this space, of course, I will focus on what this may mean for the future of capital and non-capital sentencing jurisprudence (and may also do a series of posts reflecting on Justice Stevens' extraordinary contribution to this jurisprudence over the last 35+ years).

UPDATE:  For those seeking lots of links to major coverage of the coming SCOTUS transition, How Appealing is the place to start.  For those seeking substantive analysis, the National Law Journal has a new group blog, Speaking of Stevens, and the National Journal has a Ninth Justice nomination blog (and, of couse, SCOTUSblog is always a must on all SCOTUS fronts.)

I am already overwhelmed by all the discussion and punditry surrounding these developments, and I am also already underhwelmed (but not surprised) by how much (or, should I say little) attention that criminal justice issues are getting.

How should we deal with (mature?) teenagers who knowingly download the worst kiddie porn?

The question in the title of this post is prompted by this intriguing local story from Florida, which is headlined "Teenager pleads guilty to possession of child porn, becomes sex offender." Here is how the piece starts:

Patrick Melton, 17, became a sex offender Thursday after pleading guilty to 50 counts of possession of child pornography.  Hillsborough County sheriff's detectives first learned of Melton's Internet activity in December 2008.  Using a search warrant for his home that following March, they found the images, including one of a man molesting a 2-year-old.

When they tracked Melton down at Tampa Bay Tech, deputies said he admitted downloading them. He told a detective he was 9 years old when an Internet search typo introduced him to child pornography.  He meant to type "hot rods," he said. Instead, he typed "hot bods."

Prosecutor Rita Peters said Melton admitted to authorities that if he had not gotten caught, he might have gone on to touch a child.

Taking into account his age, candor with detectives, stable home environment and the fact that many of the images he viewed were of children within his age bracket, prosecutors offered him a deal: six years of probation with sex offender treatment. Melton took it.

Given the various aggravating factors apparently in the mix here — a long history of downloading, lots of images, image involving very young kids, an admitted interest in molestation — I think there is little doubt that the defendant's age here played a major role in his probation sentence.  But, as spotlighted by other cases from Florida involving severe sentences for teenagers (including two now before the Supreme Court involving LWOP prison terms), Florida prosecutors and judges do not always view teenagers as less culpable than adults.  And there are, of course, statistical reasons to worry that teenager offenders present the highest risk of recidivism.

In light of all these factors, I wonder if readers are generally pleased or generally troubled by the (exceptional?) sentencing outcome in this case.  More broadly, I wonder if folks think there are special reasons that teenagers should get a special break when they are involved in on-line sex crimes.

Ponzi schemer Petters gets "only" 50 years for $3.5 billion fraud

As detailed in this Bloomberg report, another notable Ponzi schemer got another notable federal sentence this afternoon:

Petters Group Worldwide LLC founder Thomas Petters, convicted of orchestrating a $3.5 billion fraud scheme, was sentenced to 50 years in prison.

Petters, 52, was found guilty in December of 20 counts in what prosecutors said was the biggest fraud in Minnesota’s history. Prosecutors said he used his Petters Company Inc. to lure investor funds for fake deals to buy shipments of consumer goods and then used the money to support his lavish lifestyle.

“This was a massive fraud. There are victims who have been devastated here,” U.S. District Judge Richard Kyle in St. Paul said today at Petters’s sentencing hearing. “There’s nothing wrong with having three houses and airplanes and all of that, so long as it’s your money.”

Petters ran a Minnetonka, Minnesota-based business empire that bought companies including Sun Country Airlines Inc. and Polaroid Corp. until federal agents raided his home and offices on Sept. 24, 2008. Petters was found guilty by a federal jury in St. Paul of all charges filed against him, including money laundering and conspiracy....

With time off for time already served and for good behavior, Petters may be released after 41 years, Kyle said. At Petters’s request, Kyle said he will recommend that he serve his sentence in Minnesota.

Petters, who testified in his own defense, claimed that the fraud at PCI was committed by former Vice President Deanna Coleman and former Chief Financial Officer Robert White without his knowledge. Coleman and White, who pleaded guilty in the case, testified at Petters’s trial that they helped carry out the fraud under his direction. Four other prosecution witnesses in the case also pleaded guilty.

At the sentencing today, Kyle, who presided over the trial, said that Petters’s testimony “didn’t pass the smell test.” “The testimony was unbelievable -- let’s leave it at that,” Kyle said.

Given that the defendant here went to trial and aparently perjured himself in an effort to avoid doing time for his mass Ponzi crimes, her probably should consider himself luncky that he has an outside chance to live long enough to eventually get out of prison.

Ohio inmate claiming execution protocol violates federal drug law

Providing more proof that no good capital punishment deed goes unpunished, this local article reports on how the next person due to be executed in Ohio is responding to the state's decision to adopt a (more humane?) one-drug execution protocol.  The article is headlined "Death-row inmate: Lethal injections violate federal drug law," and here are excerpts:

An Ohio inmate scheduled to die April 20 is arguing that the state's use of lethal injection drugs violates federal prescription drug law. Death row prisoner Darryl Durr on Wednesday asked U.S. District Judge Michael Watson in Columbus to act quickly to hear Durr's claim that administering the drugs in executions is illegal.

Durr's lawsuit, filed Monday, argues the use of the drugs violates the federal Controlled Substances and Food & Drug acts. Durr says those laws prohibit the use of drugs such as lethal injection chemicals without a doctor's prescription.

The U.S. Supreme Court rejected a similar argument 25 years ago but Durr believes he's raising new issues. He was sentenced to die for raping and strangling 16-year-old Angel O'Nan in 1988.

Notable comment on sentencing from Chief Justice of the United States

Tony Mauro in this post at The BLT has this remarkable sentencing-significant snippet from Chief Justice Roberts' comments yesterday when speaking to a law school crowd in Indiana (my emphasis added):

Trial judging:  Asked by a trial judge in the audience if he would consider presiding over a trial in federal court, Roberts said flatly, but with a smile, "I wouldn't do it in a million years."  Roberts explained that his predecessor William Rehnquist once presided over a trial in Virginia while a justice, only to have the U.S. Court of Appeals for the 4th Circuit reverse him in an unsigned opinion.  Roberts added that from his appellate experience with sentencing issues and mandatory minimum sentences, he would find sentencing in a criminal case particularly distasteful.  "I wouldn't like doing it," he said with a frown.

LA Times asserts prosecutors who apply California law to murderers are "inhumane"

My inner Inigo Montoya from The Princess Bride must emerge in response to this new editorial in the Los Angeles Times, which is headlined "A death penalty record: L.A. County led the U.S. in capital sentences in 2009.  Prosecutors are being overzealous and inhumane."  Here is the editorial:

Harris County, Texas, used to be known as the death penalty capital of the United States, the focus of national and global outrage over an outdated, costly and immoral form of criminal justice. But things have changed: Harris County now has a sentencing record that looks like Denmark's, and the hanging judges (or rather, prosecutors) seem to have relocated to liberal Los Angeles.

A recent report by the American Civil Liberties Union shows that Los Angeles County sent more people to death row last year than any other county in the U.S. -- and more than the entire state of Texas. The trend is particularly odd given that most of the rest of the country is headed in the opposite direction. According to the Death Penalty Information Center, the number of death sentences nationwide last year was the lowest since capital punishment was reinstated in 1976.

A spokeswoman for the L.A. County District Attorney's Office says that 2009, when 13 felons were sentenced to death, was an anomaly because some capital cases took years to get to trial. Indeed, although the number of inmates sentenced to death annually was often in the double digits in the 1990s, there were only six in L.A. County in both 2008 and 2007. But that still doesn't fully explain why the office isn't following the lead of prosecutors in the rest of the U.S., who are pursuing fewer capital cases because in recent years some condemned inmates have been shown to be innocent and the economic costs of capital punishment are becoming harder to bear.

Los Angeles isn't the only killer county in California; death sentences were also up sharply in Orange and Riverside counties last year.  The rest of the state, though, seems to be more in line with the national trend, according to the ACLU.

California hasn't killed an inmate in four years because of a legal battle over execution procedures, and its condemned population has soared above 700.  That exceeds the capacity of San Quentin State Prison's death row, which is in need of a $395.5-million upgrade.  Expenses related to the death penalty cost the state $137 million per year, according to the California Commission on the Fair Administration of Justice, at a time when Sacramento is trying to cope with a $20-billion budget deficit.

The cost, of course, isn't the best reason to end the death penalty -- it's that an imperfect justice system cannot provide 100% certainty of guilt, making us all guilty of state-sanctioned murder when the courts get it wrong.  That's why most developed nations have done away with capital punishment.  In that context, L.A. prosecutors aren't just being overzealous, they're being inhumane.

I think it is quite useful for the LA Times to note that California imposed a significant number of death sentences in 2009.  But, to quote another great character from The Princess Bride, I find inconceivable the choice here to respond to this fact by attacking prosecutors as "inhumane." 

For starters, local prosecutors have a professional obligation to consider and apply California sentencing law: for them to categorically refuse to pursue capital charges in response to serious murders would be lawless (not humane) unless and until the California legislature repeals the state's death penalty.  Moreover, prosecutors do not and cannot decided unilaterally who gets sentenced to death; juries and judges have untimate control over  which murderers head to death row.  The LA Times should be attacking the state's legislature and juries, not prosecutors, if it is really troubled by an uptick in death sentences.  (Indeed, as I have suggested in this recent post, they might also blame appellate courts who've blocked all executions in the state.)

More fundamentally, I cannot understand why or how the label "inhumane" gets attached to prosecutorial decisions to seek the application of duly enacted sentencing law.  The acts of many murderers might be fairly described as "inhumane," as might even the fact that the family members of murder victims have now had to wait four years (and counting) for the state to deal with crazy legal battles over execution procedures.  But I do not think the word "inhumane" means what LA Times must think it means in this deeply misguided editorial.

Recent related posts:

• Are California death sentences going up because of a lack of executions?
• "Every time a killer is sentenced to die, a school closes"
• Spot-on commentary at C&C about legislative action on the death penalty
• New DPIC report assails costs (and opportunity costs) of death penalty administration
• Is it true that nobody's view on the death penalty can be influenced by its costs?

Mass high court considering GPS tracking rules for sex offenders

As detailed in this Boston Herald article, which is headlined "DAs unite to use GPS on sex offenders," the most popular of modern technocorrections was before the Massachusetts Supreme Judicial Court yesterday. Here are the details:

Allowing sex offenders to roam free without GPS monitoring has district attorneys joining forces to appeal to have judges granted the authority to slap the fiends with ankle bracelets.

The state Supreme Judicial Court yesterday heard both sides of the controversy in a case about a convicted Middlesex County child rapist who objected to wearing a GPS-monitoring device during his 10-year probation term.  “These are people who by their very nature cannot control their sexual impulses and are likely to reoffend,” said Middlesex County District Attorney Gerard Leone, whose office prosecuted Ralph Goodwin, the sex offender at the center of the legal battle.  “It’s paramount we have some means of significant monitoring.”

After he finished jail and civil sentences last summer, the Probation Department requested GPS monitoring for Goodwin.  Superior Court Judge Kathe M. Tuttman, however, ruled she did not have the authority to impose the monitoring.  In her ruling, Tuttman cited a 2009 SJC decision that decided a 2006 law mandating GPS devices on all sex offenders placed on probation cannot apply retroactively....

Since the summer, about 234 sex offenders have been allowed to remove their ankle bracelets as a result of the SJC ruling.

Cape and Islands District Attorney Michael O’Keefe said it makes sense to give judges the right to decide whether GPS monitoring is appropriate.  “I believe that judges should have the option to make that finding,” he said.  “It doesn’t necessarily mean it would be done in every case.”

Essex County District Attorney Jonathan W. Blodgett agreed.  “It’s just another probationary tool to help keep the public safe,” he said.  “We have an obligation to speak up about this and ask the court to make a decision.”

Does having celebrity "a-listers" ask for leniency help a defendant's cause at sentencing?

The question in the title of this post results in from my afternoon read of The Star Magazine, which has this new article headlined "A-Listers Ask Judge for Leniency in Sentencing of Michael Douglas' Son." Here is the background:

As Michael Douglas' son awaits his sentence for drug trafficking, Cameron Douglas' family members and friends — including his dad, stepmom Catherine Zeta-Jones, grandfather Kirk Douglas — have written letters to the judge asking for leniency for the heroin addict.

After entering a guilty plea to trafficking large quantities of methamphetamine and cocaine in January, the sometime actor — who appeared in It Runs in the Family with his dad and grandfather — will be sentenced next week in Manhattan federal court.  While he faces a minimum 10 years in prison, letters from loved ones beg the judge for a lighter sentence and placement in a drug treatment program — while largely blaming his parents for his massive troubles.

In the more than two dozen letters, many of Cameron's nearest and dearest pointed fingers at his famous father and mother, Diandra Douglas, for his problems.  Family friend Patricia Sullivan-Webb, who says Cameron spent a large portion of his childhood at her home wishing he was one of her sons, remembers Diandra saying of a then 2-year-old Cameron: "'I don't like this child; I don't think I even love him."  Noting that Diandra would go out partying, despite her son begging her not to, and the boy would frequently fall asleep crying on his pillow....

In other letters from the family, screen legend Kirk called his grandson "a pleasant guy who cared for others" and said he hopes to see him rehabilitated "before I die."  Meanwhile, Catherine's handwritten plea described Cameron as a "caring, considerete [sic], worthy human being" who's been an "exceptional" brother to her young children, Dylan and Carys.

Former NBA basketball coach Pat Riley submitted a letter on Miami Heat stationary and socialite Ann Dexter-Jones called Cameron her “surrogate son” and remembers how he was a lonely child who sought “sibling companionship” from her kids – music producer Mark Ronson, DJ Samantha Ronson and designer Charlotte Ronson.

Several months prior to Cameron’s July 2009 arrest, Star exclusively reported that he had been evicted from his home in Los Angeles' Laurel Canyon for failure to pay rent.  When the landlord entered the apartment, classic signs of drug use were discovered in the home, including glassine envelopes and home drug-testing kits, spoons used to heat a substance over the stove and filthy syringes and mirrors covered in white powder.  In 2007, Cameron was charged with felony possession of a controlled substance when police found liquid cocaine in his car.

"Vigilante Justice: Prosecutor Misconduct in Capital Cases"

The title of this post is the title of this new paper (with four co-authors) appearing on SSRN.  Here is the abstract:

This Article examines categories of prosecutor misconduct that may occur in capital cases, and it discusses suggestions to help prevent and remedy such misconduct.  The prosecutor’s role is especially important in death penalty cases because the prosecutor is a determining force in the decision of whether a defendant will live or die.  Thus, even though prosecutor misconduct is an important concern for all types of cases, it has a special impact in capital cases.

Instances of prosecutor misconduct may occur prior to trial during discovery, during jury selection, and during trial and post-trial.  In Part One of the Article, we discuss situations where prosecutors withhold exculpatory evidence from defendants in capital cases.  In Part Two, we discuss the problem where prosecutors improperly use pretrial publicity to achieve convictions and death sentences in capital cases.  Misconduct may occur during jury selection, and in Part Three, we examine situations where some prosecutors have improperly used peremptory challenges to exclude prospective jurors based upon race.  Under Batson v. Kentucky, 476 U.S. 79 (1986), this type of prosecutor misconduct may rise to constitutional significance.  Next, in Part Four, we consider the trial itself and discuss situations where prosecutors improperly used false evidence or statements in capital cases.

In Part Five, we consider methods for addressing misconduct in capital cases.  The Article considers three different categories of ways to deter instances of prosecutor misconduct in capital cases: (1) institutional and systemic methods of preventing prosecutor misconduct; (2) punishment of individual prosecutors responsible for egregious misconduct; and (3) remedies for defendants who are victims of misconduct.  After giving an overview of various suggestions, the Article concludes with five specific proposals that should be the first steps toward deterring and remedying prosecutor misconduct in capital cases.

Potent new district court opinion assailing mandatory minimum sentencing

Thanks to this post at the Second Circuit Sentencing Blog, I just learned about the potent opinion issued last week by US District Judge John Gleeson in United States v. Vasquez, No. 09-CR-259 (E.D.N.Y. March 30, 2010) (available for download below).  The opinion is a must-read for various reasons, as these opening and closing paragraphs suggest:

When people think about miscarriages of justice, they generally think big, especially in this era of DNA exonerations, in which wholly innocent people have been released from jail in significant numbers after long periods in prison.  As disturbing as those case are, the truth is that most of the time miscarriages of justice occur in small doses, in cases involving guilty defendants.  This makes them easier to overlook.  But when they are multiplied by the thousands of cases in which they occur, they have a greater impact on our criminal justice system than the cases you read about in the newspapers or hear about on 60 Minutes.  This case is a good example....

As a result of the decision to insist on the five-year mandatory minimum, there was no judging going on at Vasquez’s sentencing. Though in theory I could have considered a sentence of greater than 60 months, even the prosecutor recognized how ludicrous that would be, and asked for a 60-month sentence.  But the prosecutor’s refusal to permit consideration of a lesser sentence ended the matter, rendering irrelevant all the other factors that should have been considered to arrive at a just sentence.  The defendant’s difficult childhood and lifelong struggle with mental illness were out of bounds, as were the circumstances giving rise to his minor role in his brother’s drug business (i.e., it was to support an addiction, not to become a narcotics entrepreneur with a proprietary stake in the drugs), the fact that he tried to cooperate but was not involved enough in the drug trade to be of assistance, the effect of his incarceration on his three-year-old daughter and the eight-year-old child of Caraballo he is raising as his own, the fact that he has been a good father to them for nearly five years, the fact that his prior convictions all arose out of his ex-wife’s refusal to permit him to see their three children.  Sentencing is not a science, and I don’t pretend to be better than anyone else at assimilating these and the numerous other factors, both aggravating and mitigating, that legitimately bear on an appropriate sentence.  But I try my best to do just that, and by doing so to do justice for the individual before me and for our community.  In this case, those efforts would have resulted in a prison term of 24 months, followed by a five-year period of supervision with conditions including both other forms of punishment (home detention and community service) and efforts to assist Vasquez with the mental health, substance abuse, and anger management problems that have plagued him, in some respects for his entire life.  If he had failed to avail himself of those efforts, or if, for example, he intentionally had contact with Melendez without the prior authorization of his supervising probation officer, he would have gone back to jail on this case.

The mandatory minimum sentence in this case supplanted any effort to do justice, leaving in its place the heavy wooden club that was explicitly meant only for mid-level managers of drug operations.  The absence of fit between the crude method of punishment and the particular set of circumstances before me was conspicuous; when I imposed sentence on the weak and sobbing Vasquez on March 5, everyone present, including the prosecutor, could feel the injustice.

In sum, though I am obligated by law to provide a statement of "reasons" for each sentence I impose, in this case there was but one: I was forced by a law that should not have been invoked to impose a five-year prison term.

Download Vasquez opinion by Judge Gleeson

Louisiana moving to adding "drug offender" label to state drivers licenses

This local article, which is headlined "'Drug offender' could be added to licenses," details the latest approach to offender branding being considered in Louisiana.  Here are the particulars:

Second-conviction felony drug dealers should have that noted on their driver's licenses, a House committee said Tuesday. The House Transportation, Highways and Public Works Committee unanimously approved House Bill 139 by Rep. Rickey Hardy, D-Lafayette, after increasing the fee assessed on offenders from $10 to $25 to cover the cost of issuing a special license with "DRUG OFFENDER" in bright orange on the bottom. Similar licenses with "SEX OFFENDER" already are issued to people convicted of certain sex crimes.

Hardy said the main goal of his legislation is to "give the officer who would stop that person a heads-up who he's dealing with, to let him know that person has been involved in criminal activity and might be armed."

The legislation was supported by state police Maj. Dewayne White. "When they hand that license, a caution light is going to come on" in a law enforcement officer's mind, White said. "If a drug offender doesn't have it, his caution light may come on too late."

Rep. Sam Jones, D-Franklin, who got the committee to increase the fee so it covers the license cost, told Hardy "I wouldn't mind amending the bill to paint their cars white with pink polka dots."

Rep. Barbara Norton, D-Shreveport, raised the only objection. "If that person has done his time in prison, why put it on the driver's license?" she asked. "Sometimes we go a little bit too far. I think this is wrong. It is not the American way. It's not going to stop crime."

The latest "grand" development in the debate over child porn restitution "settlements"

This new article from the Minneapolis Star Tribune, which is headlined "Possessor of child porn to pay $1,000 in restitution," provides the latest legal update on a case concerning debates over restitution awards in child porn cases." Here are the details:

Across the United States, some purveyors of child pornography have been ordered to pay millions in restitution to their victims.  Others, not a dime.  On Monday in federal court in St. Paul, Brandon Anthony Buchanan -- penniless, without assets and serving more than seven years in prison -- agreed to pay $1,000 restitution for possessing images of a victim identified as "Amy."  The amount was agreed to by prosecutors, the defense attorney, the judge and Amy's lawyer.

It is the principle -- not the amount -- that was important in Buchanan's case, said James Marsh, Amy's attorney.  Buchanan's case, one of more than 400 in which Marsh has asked for restitution around the country, is a sign that more courts accept the idea that possessing even a single child porn photo does measurable harm to victims.  "We applaud the judge for what he's done," Marsh said Monday.

The issue of restitution for child porn victims -- and deciding who pays and how much -- came to the forefront in Minnesota three months ago when U.S. District Judge Patrick Schiltz demanded to know why restitution wasn't being sought in Buchanan's case.  Buchanan had pleaded guilty in May 2009 to possessing child pornography, including images of Amy, considered one of the most widely circulated sets of child porn in the country.  As he does whenever Amy's pictures are recovered, Marsh submitted a letter in Buchanan's case requesting $3.4 million in restitution.

Marsh said he has won restitution settlements ranging from $5,000 to $150,000 in about a third of the cases.  A few courts have ordered millions.  Some have ordered nothing....

Defense attorneys have argued that ordering restitution from everyone who possesses child pornography is better left to civil courts, rather than the criminal system.  Others say that while the possessor of child porn almost certainly causes harm to its victims, determining the weight of that harm -- among potentially millions of offenders -- is nearly impossible...

Schiltz dived into the center of the debate when he issued an order Jan. 4 asking why restitution was not being sought in Buchanan's case.  Schiltz said that Congress has clearly intended that restitution be considered for all crime victims -- including child porn victims. Yet, in Buchanan's case, the U.S. attorney's office and Buchanan's defense attorney agreed that no restitution would be paid.

The prosecutor replied that Amy was, indeed, entitled to restitution.  On Monday, all sides agreed that $1,000 was appropriate.  Officials with the U.S. attorney's office declined to comment further.

Marsh said that $1,000 -- to be paid to the U.S. Clerk of Court -- is the minimum amount he has agreed to in cases where the offender is destitute. "In a world of unlimited possible defendants with limited resources, defendants like Buchanan just aren't of interest to us," he said.

It is telling (and troublesome?) that this article describes the criminal punishment imposed in this case as a "restitution settlement" given that a resolution was reached here once "all sides agreed that $1,000 was appropriate."  Nevertheless, this case formally involved a US District Judge ordering a criminal defendant to pay restitution as part of his (required) punishment for his criminal offense.  Still, functionally, this process does not seem like classic and traditional criminal law.  Whether that functional reality is a virtue or a vice is a terrifically difficult policy question that will surely continue to rage on.

"Aging Prisoners, Increasing Costs, and Geriatric Release"

The title of this post is the subtitle of this terrific and timely new publication from the Center on Sentencing and Corrections at the Vera Institue of Justice. Here is how the Center summarizes the piece (which is authored by Tina Chui):

Correctional facilities throughout the United States are home to a growing number of older adults with extensive, costly medical needs. This report examines statutes related to the early release of geriatric inmates in 15 states and the District of Columbia and concludes that these provisions are rarely used, despite the potential of reduced costs at minimal risk to public safety. The author identifies factors that help explain the discrepancy and provides recommendations for addressing it.

Here is part of the piece's executive summary:

This report is based upon a statutory review of geriatric release provisions, including some medical release practices that specifically refer to elderly inmates. The review was supplemented by interviews and examination of data in publicly available documents.

At the end of 2009, 15 states and the District of Columbia had provisions for geriatric release. However, the jurisdictions are rarely using these provisions. Four factors help explain the difference between the stated intent and the actual impact of geriatric release laws: political considerations and public opinion; narrow eligibility criteria; procedures that discourage inmates from applying for release; and complicated and lengthy referral and review processes.

This report offers recommendations for responding to the disparities between geriatric release policies and practice, including the following:

• States that look to geriatric release as a cost-saving measure must examine how they put policy into practice. For instance, they should review the release process to address potential and existing obstacles.
• More analysis is needed to accurately estimate overall cost savings to taxpayers—and not just costs shifted from departments of corrections to other agencies. 
• More effective monitoring, reporting, and evaluation mechanisms can improve assessments of the policies’ impact. 
• Creative strategies allowing older individuals to complete their sentences in the community should be piloted and evaluated.
• Finally, to protect public safety, states should consider developing relevant risk- and needs-assessment instruments, as well as reentry programs and supervision plans, for elderly people who are released from prison.

Should Sherrif Joe Arpaio be praised or pilloried for "Pedal Vision"?

This local story provides the details on the latest innovation coming from Arizona's (in)famous Sheriff Joe Arpaio. Here are the fascinating details:

Sheriff Joe Arpaio Maricopa County is implementing a new inmate program at Tent City Jail called “Pedal Vision.” The program uses inmate-powered cycles to generate electricity for televisions.

Reports say Arpaio’s recent visit to Tent City inspired the idea, when he saw that many of the inmates were overweight. The stationary bikes are customized so that as an inmate pedals, a connected television is powered once the cycle generates 12 volts of electricity.

One hour of pedaling equals one hour of television viewing for the inmates, according to Arpaio. Arpaio said the inmates will only be able to watch television in the television room if they choose to pedal.

"I started with the females because they seemed more receptive to the idea," Arpaio said. "The only exercise the females get right now is speed-walking around the tents yard and few are doing that. This gives them a reason to get moving and a way to burn up to 500 calories an hour. They won't be charged a monthly gym fee but they will have to sign a contract." Sheriff Arpaio debuted the pilot program on April 1.

Though Sherriff Joe is (justifiably?) notorous for some of the "get-tough" innovations he tries out on local prisoners, I am inclined to praise him for "Pedal Vision."  The program seems to encourage improved physical fitness and also sound pretty "green" too.  However, given Sherriff Joe's reputation and past programs, I have an inkling not everyone will be eager to praise him now for this latest innovation.

Effective review of federal sentencing law on sentencing entrapment

The Third Circuit released an opinion today in US v. Sed, No. 09-1489 (3d Cir. Apr. 6, 2010) (available here), which includes this effective review of the disparate circuit law on the concept of "sentencing entrapment":

We have neither adopted nor rejected the doctrines of sentencing entrapment and sentencing factor manipulation. See United States v. Tykarsky, 446 F.3d 458, 476 n.13 (3d Cir. 2006); United States v. Raven, 39 F.3d 428, 438 (3d Cir. 1994).  Almost all of our sister courts of appeals have opined about both doctrines, reaching varied conclusions. 

For example, the Courts of Appeals for the First, Eighth, Ninth and Tenth Circuits have adopted sentencing entrapment and sentencing factor manipulation, but they have disagreed as to whether they are separate defenses.  See United States v. Jaca-Nazario, 521 F.3d 50, 57 (1st Cir. 2008) (both are identical, valid defenses); United States v. Torres, 563 F.3d 731, 734 (8th Cir. 2009) (accepting sentencing factor manipulation); United States v. Martin, 583 F.3d 1068, 1073 (8th Cir. 2009) (accepting sentencing entrapment, as distinct from manipulation); United States v. Riewe, 165 F.3d 727, 729 (9th Cir. 1999) (treating both defenses as identical and valid); United States v. Beltran, 571 F.3d 1013, 1017-18 (10th Cir. 2009) (accepting both as identical).

On the other hand, the Courts of Appeals for the Fourth, Fifth, Sixth, and District of Columbia Circuits have rejected both doctrines.  See United States v. Jones, 18 F.3d 1145, 1153-54 (4th Cir. 1994); United States v. Tremelling, 43 F.3d 148, 151 (5th Cir. 1995) (rejecting sentencing factor manipulation); United States v. Snow, 309 F.3d 294, 295 (5th Cir. 2002) (rejecting sentencing entrapment); United States v. Guest, 564 F.3d 777, 781 (6th Cir. 2009); United States v. Hinds, 329 F.3d 184, 188 (D.C. Cir. 2003).

Finally, the Courts of Appeals for the Seventh and Eleventh Circuits have reached mixed results.  See United States v. Turner, 569 F.3d 637, 641 (7th Cir. 2009) (sentencing entrapment valid but sentencing manipulation not); United States v. Ciszkowski, 492 F.3d 1264, 1270 (11th Cir. 2007) (sentencing factor manipulation valid but sentencing entrapment not).

And where does the Thrd Circuit jump in with Sed?  Nowhere: "Once again, we need not rule on the legal merits of either doctrine because Sed cannot establish the requisite factual predicates for sentencing entrapment or sentencing factor manipulation."

Illinois Governor acts on backlogged clemency petitions and grants multiple pardons

Critics of President Obama often assail him for being just another Chicago politician, but this recent press report on actions by Illinois Governor Pat Quinn leave me wishing President Obama would acted more like his hometown politicians when it comes to the exercise of clemency power.  Here are the details:

Gov. Pat Quinn is granting pardons to dozens of people convicted of crimes. Quinn acted on 407 petitions Friday. He pardoned 147 of their crimes and authorized two others who had previously been pardoned to seek expungement of their records. Quinn also denied 258 petitions.

Since Quinn took office he has acted on 769 petitions, but the backlog built up by his predecessor remains large. Quinn spokeswoman Marlena Jentz says there are still about 2,450 petitions awaiting action. She says 1,800 of those are left over from the administration of Gov. Rod Blagojevich.

As this official webpage reveals, President Obama has yet to act on a single one of the many thousands of requests for pardons and commutations sitting unresolved on his Oval Office desk.  Though I have urged President Obama to consider granting some clemencies since the day he took office nearly 15 months ago, at the very least he should find the time to resolve at least some of the petitions one way or another.  Even a denial seems more humane and responsible that leaving thousands of clemency petitioners (and the many thousands more who care about these persons' fate) in the dark about their status for months and months.

Some related recent posts on federal clemency realities:

• "Grandmother Will Mark President's Day By Petitioning Obama To Commute Her 27-Year Prison Sentence For Non-Violent Crime"
• Obama as Scrooge: no Christmas clemency grants
• Fitting complaints about an ugly clemency scoreboard: "Turkeys 2, humans 0"
• The true sentencing turkeys on this Thanksgiving eve
• Justified complaints that Obama's first pardon will be of a turkey
• "President Barack Obama proving stingy with his pardon power"
• Notable press stories noting Obama's lack of clemency action
• A simple plea for Prez Obama: grant at least a single clemency in your first 100 days
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• "The Fall of the Presidential Pardon"

"Sarah Palin, Marijuana Law Reformer?"

The title of this post is the partial headline of this item at the Huffington Post, which continues with "Nevada Group Hopes $25,000 Convinces Palin To Back Reform Of Marijuana Laws." Here are snippets of the piece:

Could Sarah Palin become the highest profile conservative to endorse reforms to the nation's marijuana laws?

She clearly has no problem with legalized inebriation. Palin, who is scheduled to give the keynote address Tuesday at the national convention for the Wine & Spirits Wholesalers of America, will be offered to give a similar speech at a Nevada event about marijuana.  Nevadans for Sensible Marijuana Laws (NSML), a ballot initiative group, is poised to offer the former Alaska Governor $25,000 to speak at one of their upcoming events, according to a statement from the Marijuana Policy Project.

As evidence that Palin might be willing to support marijuana, NSML's Campaign Manager Dave Schwartz pointed to Palin's willingness to endorse alcohol....

But Schwartz might do well to prepare himself for rejection.  According to a Politico report, the former Republican candidate for vice president charges at least $75,000 per speaking engagement.

Though I do not think the folks at NSML should start booking a room for Palin at its upcoming event, I am hopeful that some of the anti-government rhetoric coming from some notable conservatives might lead them to seriously consider supporting movements urging government to get out of the business of pot prohibition.

Some related older and more recent posts:

• Is Governor Palin is a real fan of jury nullification and pot decriminalization?
• Governor Palin, crime and punishment 
• What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
• Should and will California's voters legalize marijuana in that state this November?

New UK sentencing structure attacked for giving judges too much discretion

The title of this new piece in The Guardian caught my eye because I thought the federal sentencing system was being discussed under the headline "Judges given free rein by 'pitifully loose' sentencing law."  But, as this excerpt shows, the article concerns new UK sentencing law:

New legislation guiding judges on sentencing criminals is so "pitifully loose" that judgments could become idiosyncratic and inconsistent, according to the head of the Sentencing Advisory Panel. Professor Andrew Ashworth struck out at the government on the eve of the panel's replacement today by a new body, the Sentencing Council.

In an interview with the Guardian, Ashworth called the new council "defective". He said the legislation dictating its powers and responsibilities "dilutes and even trivialises the proper approach" to the rule of English law. Ashworth, the Vinerian professor of English law at the University of Oxford, accused the government of "changing course in response to judicial opposition to the creation of the new council".

He said the government has given judges a virtually free rein in deciding what sentence to hand down. "It's not democratic. It is about retaining the confidence of the judiciary, who were concerned that the new council would threaten what they consider to be their independence, at the cost of reducing the effectiveness of the guidelines," he said.

"The whole idea of guidelines has been undermined. The purpose of guidelines is to steer judges along particular channels but the new legislation is destructive because it hardly binds judges at all. It is possible that the new legislation will lead to the sort of idiosyncratic sentencing that used to cause people such worry. It depends on how tightly the court of appeal polices things, but under the new statute as we now have it, that is a possibility."

SCOTUS short-list speculation as Justice Stevens talks of retirement

As highlighted in all the links here at How Appealing, it is time once again to crank up the speculation stories about when exactly Justice Stevens will retire and who President Obama might nominate to replace him.  Given that Tom Goldstein has already predicted that current SG Elena Kagan will get the post, that's the smart money bet.  But, especially because I will be off-line most of today, I am eager to hear the readers of this blog discuss the next possible SCOTUS transition (ideally with a sentencing spin).

Here are some of my "classic" short-list posts from earlier SCOTUS transition periods:

• "For the Supreme Court, Younger Isn’t Necessarily Better"
• An op-ed call for a district judge to become a Justice
• Is career diversity a bad thing in the highest court in the land?
• "The last thing the Supreme Court needs: Another judge"
• Insider myopia and the diverse benefits of a short bench
• Thinking creatively about different SCOTUS short lists
• Does SCOTUS need a trial judge?
• Developing a SCOTUS short list of district court judges
• Brave New Justice and sentencing issues

Report on capital justice delayed in Alabama

This local article from Alabama, which is headlined "Death penalty cases take longer to complete as debate continues," provides details on why capital justice takes a long time in the Yellowhammer State. Here are excerpts:

When a new inmate arrives on Alabama's death row, the chief capital punishment attorney for the state does not begin making plans for the execution. Instead, Assistant Attorney General Clay Crenshaw begins making plans for representing the state in numerous appeals of the death sentence, which can often last for more than 20 years.

Crenshaw said the average length of time between a death sentence being imposed and an execution carried out in Alabama is 13.5 years. He said that period is growing as appeals courts spend more time before issuing decisions. "The courts are taking longer than ever to issue opinions on death penalty cases and I'm not sure why," Crenshaw said. "The Alabama Supreme Court can take two years just to decide if it is going hear a case."

Lauderdale County District Attorney Chris Connolly said he always discusses the lengthy appeals process with family members of capital murder victims when deciding if the death penalty will be pursued. "We want to make sure they understand the execution is not going to happen overnight and they could be attending appeal hearings for 20 years or more before an execution takes place."...

Connolly said the likelihood of a capital murder case lingering in the courts for decades before the execution occurs sometimes prompts family members of the victim to opt for a life sentence in prison, without parole, for the defendant to bring quick closure to the case.

"there is no such thing as a nonviolent crime"

This title of this post is a line from this remarkable op-ed from a "senior supervising psychologist" at a California prison. The op-ed is headlined "State plays dangerous game when it considers the early release of inmates," and it highlights some of the arguments and rhetoric that makes cutting prison populations so challenging. Here are excerpts:

After spending 20 years in corrections as a psychologist, I am astonished that anyone -- much less the governor -- could define any class of felons as nonviolent.  The current plan to release thousands of California inmates with no or shortened parole is fatuous, if not disingenuous.  It is a complete fiction to believe that any convicted felon upon release is safe for community re-entry without serious strengthened parole supervision and community-based rehabilitation.

The re-offense numbers are striking and troublesome.  According to up-to-date reports readily available through the state corrections department, 57.44 percent of all paroled felons are returned to prison within three years for parole violations or for a new offense.  And those are just the ones who have been caught.

Moreover, there is no such thing as a nonviolent crime.  Virtually every blue-collar crime is committed by someone willing to do some kind of violence if in the doing of the crime they are discovered....

Do some inmates leave prison and lead exemplary lives? Of course.  But the last thorough study revealed that out of 10,000 paroled criminals followed over many years, fewer than a dozen -- yes, a dozen -- of those multiple thousands truly turned themselves around.  The rest faced post-release lives skirting the law and flirting with re-arrest by continuing their crime....

Not a pretty picture, especially when we are facing personnel reductions in police and sheriff's departments, locally and throughout the state.  More felons on the street, fewer of society's "protectors" in the field.  Not hard to see where that might lead.

The only credible solution if these felons are to be released is to redirect a serious portion of money saved through the release program to parole programs throughout the state to greatly reduce the number of parolees on an agent's caseload -- as has now wisely been done -- to 40 or fewer, so that supervision is close, frequent and regular.  And these parolees need to be in rehab programs and forced to wear GPS devises so that at any time they can be located for random checks.  Anything short of that, we're courting disaster.

I am a bit surprised to see a prison psychologist making such an aggressive argument against the notion that some crimes are nonviolent and for the idea that all felon pose a significant risk to the community upon release.  Nevertheless, this op-ed provide a great example of the kind of fear-mongering that can make it so very hard for states to keep moving forward with plans to reduce prison populations.

Georgia not (yet) considering prison reduction to cut costs

This effective piece from the Atlanta Journal-Constitution, which is headlined "Georgia prison population, costs on rise," suggests that Georgia may soon have start considering it prison populations as it tries to deal with budget deficits. Here are excerpts:

As Georgia lawmakers desperately search for ways to slash spending, they are not debating an option taken by other states: cutting the prison population. Georgia operates the fifth-largest prison system in the nation, at a cost of $1 billion a year.  The job of overseeing 60,000 inmates and 150,000 felons on probation consumes 1 of every 17 state dollars.

The state’s prison population has jumped by more than a quarter in the past decade and officials expect the number of state inmates to continue to creep upward. Georgia has resorted to measures other than reducing the prison population to keep corrections spending under control....

Georgia prisoners are serving longer sentences due to tough-on-crime laws adopted in the 1990s. Those laws ban early release through parole for many offenders. A wave of convictions related to illegal methamphetamine also pushed up prison admissions in recent years.

Enough states are experimenting with keeping fewer offenders behind bars that the total number of state prisoners held nationwide declined this year for the first time in nearly four decades, according to a new report by the Pew Center on the States.  The Pew study found that prison populations dropped in half the states.  Georgia was among the states that posted an increase.

Budget problems played a role in the prison population reductions elsewhere.  But so did a sense among some policy makers that continuing to put greater numbers of offenders behind bars for longer sentences would not be effective at reducing crime, especially for some non-violent offenders and those incarcerated on drug charges....

States working to cut prison populations are relying on new research that helps them identify which offenders are likely to do well outside of prison and which programs work best to discourage recidivism....

Cutting Georgia’s prison population hasn’t been debated this year, even as legislators have considered drastic cuts in education, health care programs and the judiciary.  Given the state’s finances, some influential voices say it is time to begin a conversation about prison spending.

State Rep. Chuck Martin (R-Alpharetta), who leads a subcommittee that oversees public safety spending, said it makes sense for the Legislature to study alternatives.  Martin said sentencing some low-risk offenders to house arrest at night, while requiring them to work during the day, could be more effective than placing them behind bars for a year with hardened criminals.

Such an approach could conserve resources to keep dangerous offenders locked up, he said, while also steering low-level offenders into more productive lives.  “If they are non-violent and do not pose a risk to the community or themselves,” Martin said, “let’s find a way to punish them and make them continue to work and pay restitution and support their family.”

Newt Gingrich, the former Georgia Republican congressman who served as Speaker of the House from 1995 to 1999, wrote recently in The Atlanta Journal-Constitution that “Georgia simply can’t afford for the corrections system to maintain the status quo.” Gingrich argued that recidivism rates are unacceptably high and that churches and non-profits need to offer more resources and support to help offenders who are released from prison build productive lives in the community.

“Celebrating taking criminals off the street with little thought to their imminent return to society is foolhardy,” Gingrich wrote in the article, which was co-authored by Mark Earley, a former attorney general of Virginia.

A busy week that was at SCOTUS for sentencing fans

The biggest story for criminal justice fans coming from the Supreme Court this week was surely its ruling in Padilla concerning the application of the Sixth Amendment to how an attorney advises a defendant prior to a plea (details here and here).  But the Justices also heard argument on consequential sentencing issues in Dillon and Barber and on some other complicated criminal justice issues with various sentencing implications (see list here). 

Anyone looking for comprehensive coverage of all these happenings should head over to SCOTUSblog, but here I can link my recent coverage of the Justices' doings during the dynamic week that was.  Many of these posts have long, thoughtful comments by readers that especially merit careful reading:

• Padilla prevails in his ineffectiveness claim concerning plea advice
• Is the Padilla ruling as profound as it seems?
• Sentencing day at the US Supreme Court
• "Justice Kennedy prods Obama to commute sentences"
• Telling(?) distractions during Dillon SCOTUS oral argument
• "Supreme Court justices have a good time debating 'good time'"

I will have more to say specifically about the Padilla ruling in a subsequent post, though readers are welcome to continue the commentary on this major Sixth Amendment decision.  I am also eager to get reader comments on any other aspects of what the Justices are doing or thinking on sentencing issues these days.