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April 24, 2010

Shouldn't we celebrate condemn's request that he "would like the firing squad, please"?

I am intrigued by the media attention being given to a Utah death row defendant's decision to select the firing squad as a method for his execution.  Here are the details from this Salt Lake Tribune account:

Shackled at his ankles and wrists and wearing an orange jump suit, Ronnie Lee Gardner leaned forward in his chair Friday and uttered seven words that will place Utah in the international spotlight. "I would like the firing squad, please," Gardner said, his voice choking up.

Choosing bullets over lethal injection may have nothing to do with making headlines for Utah -- the first state to execute a killer after the U.S. Supreme Court reinstated the death penalty in 1976 and the only to allow inmates to die by firing squad. Gardner's cousin, Jerry Hainsworth, said Gardner told him a few years ago: "I'd rather do it that way because I've been shot a bunch of times."

That includes a bullet wound suffered during Gardner's 1985 escape attempt from the since demolished Salt Lake County courthouse.  Police shot Gardner in the neck while trying to apprehend him after he escaped from prison in 1981.  Hainsworth said Gardner was shot in the leg with a .22-caliber rifle as a child, was once wounded in a shootout with a brother-in-law, and once accidently shot himself in the thigh.

After hearing Gardner's request, 3rd District Court Judge Robin Reese on Friday signed a death warrant setting his execution date for June 18.  The judge rejected Gardner's latest appeal of his 1985 death sentence minutes earlier, leaving a Utah Supreme Court appeal or a commutation from the Utah Board of Pardons as Gardner's only chances to avoid death.

Already on Friday opponents of capital punishment were anticipating the intense scrutiny Gardner's death would generate for Utah. "It's so unusual and harks back to a whole other era," said Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C. "This is a spectacle in a sense."

The last Utah inmate to die by firing squad was John Albert Taylor in 1996, who said he selected the method to embarrass the state. Satellite trucks filled a large parking lot near the state prison in Draper.  Jack Ford, who was then the Utah Department of Corrections spokesman, on Friday read a list of reporters, photographers and other media personnel who were on the prison grounds. Ford estimated there were 150 media personnel in all, including major American news outlets and journalists from Great Britain, Denmark, Italy and Australia....

The current Corrections spokesman, Steve Gehrke, said as of Friday afternoon he had already received inquiries from several national media outlets.  Visiting reporters will find the firing squad still has its proponents among Utah lawmakers.

 In 2004, when the Legislature was debating whether to eliminate the firing squad, then-Sen. David Thomas, R-South Weber, and others like him supported keeping the method.  "I know there are a lot who suggest getting rid of firing squad is more humane but we've had the firing squad since statehood and it's effective," Thomas told The Salt Lake Tribune Friday.

Unless and until a state eliminates the death penalty altogether, it seems to me that letting a condemned man selected the method for his execution is more humane (and respectful of his continuing autonomy) that is forcing him to be exectued a particular way.  In addition, given all the evidence developed by the defense bar that a three-drug lethal injection protocol can be botched in a manner which can be torturous for the condemned, this choice by Gardner seems sound and sensible in light of what we have come to learn about his other execution option. 

April 24, 2010 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (62) | TrackBack

"Documentation, Documentary, and the Law: What Should be Made of Victim Impact Videos?"

The title of this post is the title of this interesting new piece on SSRN from Regina Austin. Here is the abstract:

Since the Supreme Court sanctioned the introduction of victim impact evidence in the sentencing phase of capital cases in Payne v. Tennessee, 501 U.S. 808 (1991), there have been a number of reported decisions in which that evidence has taken the form of videos composed of home-produced still photographs and moving images of the victim.  Most of these videos were first shown at funerals or memorial services and contain music appropriate for such occasions. This article considers the probative value of victim impact videos and responds to the call of Justice John Paul Stevens, made in a statement regarding the rejection of certiorari in People v. Kelly, 129 S.Ct. 564 (2008), for the articulation of reasonable limits on the admission of victim impact evidence.

The first part of the article offers an analysis of victim impact videos drawing on the lessons of cinema studies and cultural studies.  The common reception of home photographs and moving images affects the interpretation of victim impact videos.  As a result, impact videos are typically too idealistic and idyllic to be really probative evidence of the victims’ individuality and the impact of their loss on their families and friends. However, impact videos may be particularly important evidence for the members of devalued or denigrated groups who fall outside of generally accepted images of ideal victims. 

The second part of the article deals with an actual case in which the subject of the video was a young Latina mother, felled by domestic violence, whose character was attacked as part of the effort to mitigate her husband’s sentence.  He wound up with a judgment of life without the possibility of parole.  Here the article considers how the victim impact video might have been more probative and the response of the defense to it, more likely to produce a less harsh punishment.

Part three finds greater relevance in a video streamed on YouTube that was based on the written impact statement presented by the young adult son of a homicide victim at the perpetrator’s first parole hearing which was held some 15 years after the murder.  Finally, the conclusion offers recommendations for the admission of victim impact videos.

It is my understanding that the submission by defendants of mitigating video evidence at sentencing is becoming a quite common in some courthouses.  Thus, I wonder if the author here or others who agree that certain kinds of "videos are typically too idealistic and idyllic to be really probative evidence" would also be inclined to preclude defense submission of videos. 

April 24, 2010 in Procedure and Proof at Sentencing, Technocorrections, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (3) | TrackBack

Anyone want to discuss the Ben Roethsliberger "sentencing"?

I am not sure if it is even wise to discuss or debate the NFL's six-game suspension of Ben Roethsliberger in sentencing terms. But on the reasonable assumption that some sentencing fans might have some sentencing-relevant reaction to how Big Ben is being punished, I figured I might spice up the final day of the NFL draft by encouraging some football talk in this forum.

April 24, 2010 in Celebrity sentencings, Criminal Sentences Alternatives | Permalink | Comments (4) | TrackBack

April 23, 2010

Go West, Young Pot Dealer!

Go west This local sentencing story out of Buffalo, which is headlined "Pot dealer banished from state by judge," prompted the green-leaf twist on the famous Hoarce Greeley saying in the title of this post.  Here are the details:

Brian M. Renaud, who pleaded guilty Wednesday to his second marijuana felony in six years, is being kicked out of New York State as part of a plea bargain approved by Niagara County Judge Sara Sheldon Sperrazza.

Renaud, 31, of Old Ransomville Road, Lewiston, admitted to a reduced charge of attempted second-degree criminal possession of marijuana. Sperrazza agreed to place him on probation as long as he leaves the state forever.

“Banishment is not something I do lightly or often,” the judge said. “His family has relocated, and he wants to move to California.”

She ordered Renaud to list his house for sale by June 30, the formal sentencing date.

Assistant District Attorney Susan B. Bjornholm said Renaud was arrested Dec. 15, 2008, after police raided his home and found him growing marijuana. They seized 3.84 pounds of it.

Renaud served three years in prison, starting in 2004, after police found 31 pounds of pot, packaged for sale, in another raid.

April 23, 2010 in Criminal Sentences Alternatives, Drug Offense Sentencing | Permalink | Comments (5) | TrackBack

"Ohio considers using Twitter to announce executions"

The title of this post is the headline of this new story out of Ohio.  Here are the details:

A spokeswoman says Ohio's prison system has contemplated using Twitter to announce when an execution has been completed.  However, Communications Director Julie Walburn at the Department of Rehabilitation and Correction says she's concerned that tweeting about an inmate's time of death may be considered in poor taste.

She says the department still hasn't decided how to use Twitter and other social media to disseminate news. Walburn says she's focused on trying to get the word out about executions quickly. When condemned inmate Darryl Durr died by lethal injection at 10:36 a.m. Tuesday, a news release was e-mailed to media outlets one minute later.

I know lots and lots of people consider a state's efforts to execute someone to be in "poor taste," but I see no reason not to use all modern means of communication to report on these efforts.  But perhaps other have different views on taste and technology (which they are encouraged to express in the comments).

April 23, 2010 in Death Penalty Reforms, Technocorrections, Who Sentences | Permalink | Comments (4) | TrackBack

Questionable(?) DC Circuit ruling on safety-valve burden of proof

The DC Circuit has a very intriguing little opinion this morning in US v. Gales, No. 08-3040 (DC Cir. Apr. 23, 2010) (available here), concerning burdens of proof and eligibility for statutory safety valve relief from an applicable mandatory minimum sentencing term.  At issue in Gales is whether the defendant satisfied the safety valve requirement to truthfully provide all information about his offense: the defendant claimed he did, prosecutors claimed he did not.  After saying it was not clear error for the district court to not believe the defendant, the DC Circuit has to respond to these claim by the defendant about the applicable burdens of proof:

Gales contends that the district court “misunderstood and misapplied” the burden of proof under the safety valve provision, claiming that after the government expressed its doubts to the district court about Gales’ story concerning his drug supplier, the district court shifted the burden of proof to Gales to prove that he had not lied.  Gales argues that such an “impossibly high burden” is not imposed by the law.  Instead he claims that once he made a credible showing that his story was truthful and complete, it was the government’s burden to present evidence showing otherwise....

Gales [further] contends that when the district court stated that the way the safety valve works is for Gales to give the government “the answer they want,” the court was giving the government the same discretion it has pursuant to the Sentencing Guidelines’ substantial assistance provision, U.S.S.G. § 5K1.1.  That is, the district court was allowing the government to prevent him from receiving relief under the safety valve.  According to Gales, this was not Congress’ intent.

Relying on the Circuit's (pre-Blakely) precedent, the panel in Galesrejects the contention that there is any problem with placing the burden on the defendant to establish "his story was truthful and complete."  In other words, the defendant here gets subject to a 5-year mandatory minimum especially because he could not satisfy his burden of proving that "his story was truthful and complete."  

As my quick reference to Blakely above is meant to suggest, there could be possible constitutional arguement (based in the Fifth Amendment more than the Sixth Amendment) against an interpretation of a statutory scheme that functionally increases the defendant's sentence because he fails to prove his admissions of guilt were truthful and complete.  More fundamentally, I think constitutional doubt and rule of lenity statutory construction principles suggest, at least to me, that the proof burden should be on the government in this kind of setting.

April 23, 2010 in Blakely Commentary and News, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Comdemned battered female murderer raising interesting issues in Tennessee

This notable new local editorial, which is headlined "Bredesen holds complex case; Gaile Owens poses a challenge: Abuse and a co-defendant figure into the fate of a Bartlett woman who hired her husband's killer," spotlights a capital case and debate worth watching in Tennessee. Here are the details:

Gaile Owens, facing trial for the murder of her husband, and co-defendant Sydney Porterfield were offered a deal by a Memphis prosecutor in January 1986: Plead guilty and you won't be executed.

But they both had to agree to it or the bargain was off, and Porterfield refused. Consequently they both went to trial, and Owens may become the first woman to be executed in Tennessee since 1820. She could also be the first woman in America to be executed for a crime committed under the influence of battered woman's syndrome.

Those are among the issues that should factor into the decision before Gov. Phil Bredesen -- whether or not to allow her execution to go forward.  Of course, Bredesen must also consider the brutality of the crime to which Owens, 57, has confessed -- hiring Porterfield to kill her husband.

Ronald Owens was beaten to death with a tire iron in the couple's Bartlett home, a crime that has surely earned Owens a life sentence without parole at least.

Bredesen's decision will stir up passions on both sides, as well as the inevitable comparisons with Mary Winkler, who served less than a year for the 2006 slaying of her husband, Rev. Matthew Winkler of Selmer.

Like Winkler, Owens exhibited symptoms of battered woman's syndrome, a condition described by Memphis psychologist Dr. Lynn Zager, who interviewed her, as "characterized by dominance and control exerted by the husband over the wife, leading to increased entrapment of the wife, or what is called 'learned helplessness.'"...

Owens has maintained that she didn't testify at her trial and never raised the mistreatment defense in order to protect two young sons from the truth about their father's behavior.

Her initial agreement to plead guilty to the offense in exchange for a life sentence supports the claim.  Her co-defendant's refusal to accept the deal turned out to be a mistake -- Porterfield is on death row, as well -- over which Owens had no control.

Nevertheless, Owens has exhausted her legal challenges to the death penalty, and Tennessee has set a Sept. 28 execution date.

With the stroke of a pen, Bredesen can change that. Whatever he does, it will be greeted by second guessing among people who should be grateful their hands don't hold the pen.

So, dear readers, how about giving Gov. Phil Bredesen some help with this tough decision.  Should he grant clemency to Owens?  I am already prepared to predict that he will, but I want to hear comments about whether folks think he should.

April 23, 2010 in Clemency and Pardons, Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (8) | TrackBack

"Federal Judges Still Finding Their Way in Post-'Booker' Sentencing Landscape"

The title of this post is the headline of this new article by Mary Pat Gallagher in the New Jersey Law Journal. Here is how it gets started:

Five years after the Supreme Court held that the federal sentencing guidelines are no longer binding but merely advisory, judges for the most part continue to follow them, though there is an ever-growing divergence, according to the most recent federal sentencing statistics.

But judges are still struggling to grasp the degree of discretion the Court handed back to them in U.S. v. Booker, 543 U.S. 220 (2005), which held that the guidelines violate the Sixth Amendment right to a jury because they required harsher sentences based on facts found by judges rather than jurors.  Instead of tossing the guidelines, the Booker Court said judges must take them into account, along with other factors listed in the sentencing law, 18 U.S.C. 3553(a), including the nature and circumstances of the offense.

There has been an incremental trend away from strict adherence to the guidelines. The statistics, released April 9, show that for the 2009 fiscal year, which ended Sept. 30, 2009, 56.8 percent of sentences were inside the guidelines, down from 61.7 for 2006, the first year after Booker. The percentage also fell in both of the intervening years too, to 60.8 percent in 2007 and 59.4 in 2008.

Though nationally more than half of sentences are within the guidelines, the rate varies widely from district to district -- from a low of 27.8 percent in the District of Arizona to a high of 92.3 percent in the District for the Northern Mariana Islands, both part of the 9th Circuit.  The second lowest and highest rates of fealty to the guidelines were the District of Vermont's 30.8 percent and the Southern District of Mississippi's 80.7 percent.

Circuit averages varied from 39.4 in the District of Columbia Circuit to 71.7 percent in the 5th Circuit. When judges opt not to stay within the guidelines, they are far more likely to go below them.  Nationally, lesser sentences were meted out in 41.2 percent of cases, versus only 2 percent where they were greater.

April 23, 2010 in Booker and Fanfan Commentary, Booker in district courts, Data on sentencing, Who Sentences | Permalink | Comments (8) | TrackBack

April 22, 2010

"Sanford backs plan to put fewer non-violent offenders in prison"

The title of this post is the headline of this new article concerning proposed prison reforms in South Carolina.  Here are the particulars:

Gov. Mark Sanford formally threw his support behind a far-reaching sentencing reform bill Wednesday, a bill that supporters say will reduce the number of non-violent offenders in prison and save the state millions of dollars. "You can only squeeze so much blood from a turnip," Sanford said. "This really is a taxpayer issue."

The 94-page bill is expected to reduce the state's projected prison population enough to negate the need for a new prison -- saving more than $400 million over five years. It's designed to increase training for nonviolent offenders to re-enter society without becoming repeat offenders. And it defines a laundry list of crimes as "violent," including many sex crimes against children.

It also provides, for example, a tiered approach to assault and battery crimes. Currently, the state has 90-day maximum sentences and 10-year minimum sentences and nothing in between, said state Sen. Chip Campsen, R-Charleston.

And it provides a sentence of up to $10,000 and up to 20 years in prison for habitual offenders convicted of driving under suspension resulting in death -- and a fine of up to $5,000 and 10 years in prison in such cases where great bodily injury results. A version of that provision, rolled into the bill last month, has been championed by Spartanburg resident Lily Lenderman for eight years -- ever since she lost her grandson in a wreck caused by someone driving under a suspended license.

"The whole idea about any criminal law is to keep us safe," said Rep. Keith Kelly, R-Woodruff, chairman of the House Criminal Law Subcommittee. "This bill ... is strong by keeping the violent offenders segregated from South Carolina families. At the same time, it's smart, because it's taking non-violent offenders out of the Department of Corrections and puts them on alternative sentencing -- GPS monitoring, for instance, that they pay for, not you or me."...

Corrections Department Director Jon Ozmint said the Sanford administration had been behind sentencing reform since a scaled-down version of it failed seven years ago.  Ozmint said South Carolina currently doesn't have a criminal justice system; rather, it has a patchwork of laws that have been cobbled together over the years.  He and several supporters talked about this bill being ruled by statistics rather than emotions.  "Don't underestimate that first step in this state's history," he said.

April 22, 2010 in Mandatory minimum sentencing statutes, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (9) | TrackBack

Some notable new developments in the Polanski prosecution

As detailed in this AP article, "An appeals court on Thursday denied a petition by Roman Polanski's victim to dismiss the three-decade-old sex case against the director."  Here's more:

The California Second District Court of Appeal denied the petition by Samantha Geimer without comment. 

Geimer's attorney petitioned the court on March 23 to dismiss the case against Polanski, arguing recent changes to California's constitution gave her more rights as a victim to influence the case. "She is a person who is harmed by the maintenance of the prosecution and she wants it to end," Geimer's attorney wrote in the petition for dismissal. "She has not been treated fairly."

Prosecutors argued in a filing last week that voters' decision in 2008 to include a victim's bill of rights in the state's constitution didn't grant Geimer or other crime victims the authority to end prosecutions.

Thursday's ruling is unlikely to have any immediate bearing on Polanski's status.  The Oscar-winning director remains on house arrest at his chalet in the Swiss resort of Gstaad.  The appeals court has not yet ruled on another petition his attorneys filed earlier this year, records show.

Though this ruling is not unexpected, I was somewhat suprirsed by this news report, headlined "Roman Polanski asks President Obama for clemency." Here are the details:

French President Nicolas Sarkozy has hand-delivered a letter to President Obama from fugitive director Roman Polanski, according to a new report. The Daily Beast website claims a French political magazine has published a report stating that Polanski made the private plea for clemency.

The website writes: “In an astonishing act of backroom international diplomacy, French President Nicolas Sarkozy hand-delivered a letter from fugitive Oscar-winning filmmaker Roman Polanski to President Barack Obama last week on the sidelines of the international anti-nuke proliferation summit in Washington, according to a small and little-noticed article embedded in the prestigious French political magazine, L'Express.”...

The letter, which is not directly quoted in the L'Express article, is said to suggest that the two months the aging director spent in a Swiss prison, in addition to the 47 days that he spent in detention in California in 1977, should suffice for the crime of unlawful sexual intercourse he pled guilty to.

April 22, 2010 in Celebrity sentencings, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (6) | TrackBack

"Judge Who Sentenced Madoff Confirmed to 2nd Circuit"

The title of this post is the headline of this report at The Blog of Legal Times, which details that the "Senate today unanimously confirmed Judge Denny Chin to the U.S. Court of Appeals for the 2nd Circuit." I find it both unsurprising and telling that the elevation of a respected and path-breaking jurist from the District Court to the Circuit Court gets flagged by reference to his highest-profile sentencing decision.

April 22, 2010 in White-collar sentencing, Who Sentences | Permalink | Comments (4) | TrackBack

Another high-profile murder case ends in a plea deal to avoid the death penalty

As detailed in this AP article, one man "accused in the killing of a student body president at University of North Carolina's flagship campus pleaded guilty to federal crimes Monday, avoiding a death penalty case prosecutors were pursuing."  Here are more details:

Demario Atwater pleaded guilty to several charges, including carjacking resulting in death and kidnapping. Prosecutors agreed to drop their plan to pursue the death penalty and Atwater agreed that he will face a life sentence.

Eve Carson, 22, of Athens, Ga., was found shot to death in the middle of a Chapel Hill street in March 2008. She had been shot five times, including once in the head with a 12-gauge shotgun.

"While we deplore the evil and negligence that led to Eve's death, we agree with the U.S. Attorney's decision to accept the plea agreement," Carson's parents said in a statement Monday released by prosecutors. "We are very grateful for the dedication and hard work that have gone into the investigation and prosecution of this crime."

I hope (but do not really expect) that this plea deal and the similar plea deal that has recently been entered in the Chelsea King murder case (details here) might get more researchers and death penalty debaters to seriously analyze and assess the benefits and burdens of the death penalty as a plea bargaining tool. 

As regular readers know, I see the death penalty's role as a catalyst for resoving difficult murder cases via pleas to lesser sentences to be the least examined (and perhaps most important) justifications for capital punishment.  With the high-profile Carson and King cases both showcasing this issue, perhaps plea bargaining in the shadow of death will get more attention.  Gosh knows it should.

Some related posts:

April 22, 2010 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (15) | TrackBack

Interesting discussion of state juve bind-over procedures

This local piece out of Denver, which is headlined "Children behind bars: Why Colorado is trigger-happy when it comes to sentencing kids like Alan Sudduth as adults," provides an interesting discussion of concepts with allowing state prosecutors to unilaterally decide when to try juvenile offenders as adults.  Here is an excerpt:

The state's current direct-file system was a response to growing concerns about crime in the 1990s, says Kim Dvorchak, chair of the Colorado Juvenile Defender Division.  "What had been happening before was that when a child committed a serious crime, the DA would have to petition the juvenile court judge to waive jurisdiction and send the case to adult district court," she says.  "In the 1990s, crime went up and the judicial transfer process was perceived as cumbersome.  You had to have a hearing.  There were defense lawyers involved and they might get evaluations and evidence.  It was like a mini-trial."

So to get tough on crime, the Colorado Legislature passed a series of laws that allowed prosecutors to bypass judicial hearings and direct file kids fourteen and older for class 1 or class 2 felonies and other crimes.  That gave DA's offices widespread new authority, says Dvorchak. "The direct-file statute relieves a prosecutor of having to prove the child is no longer amenable to treatment in the juvenile system," she explains.  "Even when prosecutors are seeking the death penalty, they have to give notice.  It's a separate sentencing hearing, and a jury decides whether or not to impose the death penalty.  Even that level of due process is absent from the direct-file statute."

Colorado isn't unique in having direct-file laws.  Fourteen states allow district attorneys to direct file kids as adults, something often referred to as judicial waiver.  Some states have even passed mandatory waiver laws, meaning that kids over a certain age accused of first-degree murder have to be charged in adult court, no matter what defense attorneys or prosecutors might say.

But Colorado is unique in one regard, says Dvorchak: "We have no ability to return kids to juvenile court.  The majority of other states that have direct-file or mandatory waiver laws give the child an opportunity to challenge adult-court jurisdiction either at pretrial or at sentencing.  As Colorado's direct-file statute currently stands, there is no provision that allows defense attorneys to challenge the prosecutors' decision that a child should be subject to adult laws instead of juvenile laws."

And that's a problem, says Dvorchak, because once such a decision is made, it can have drastic consequences on the kids involved.  For one thing, as part of a direct file, the prosecutors can decide the youth should stay in adult jail pending the conclusion of the trial. Since these jails don't have separate facilities for juveniles and the kids can't be mixed in with the older inmates, that often means the youths are subjected to 23- or 24-hour cell lockdown. There are often few of the recreation and education opportunities available at juvenile facilities, and the young inmates aren't allowed contact visits with their families.  "The conditions are almost like death row," says Dvorchak.  "They have worse conditions than the adults."

Over the past couple of years, there have been two prominent examples of teenagers committing suicide while incarcerated in local adult jails, one in Pueblo and one in Denver. Dvorchak says there are also major problems with sending kids through court proceedings designed for adults. "Reports have found that prosecuting children in adult court increases recidivism," she says. "Children's experiences going through the adult court proceedings are so negative. In juvenile court, it's a much friendlier atmosphere.  Most people in the juvenile court system are interested in rehabilitating these kids, getting them on the right track.  That's not what happens in adult criminal court. It's a much more sterile environment."

April 22, 2010 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2) | TrackBack

April 21, 2010

"Becoming Justice Stevens: How and Why Some Justices Evolve"

The title of this post is the title of this interesting new FindLaw commentary by Professor Michael Dorf, which includes a section sub-titled "The Death Penalty: Justice Stevens's Recent Change of View."  In addition, here are the first few paragraphs of the piece's final sub-heading "Does American Law Have a Liberal Bias?":

One factor that undoubtedly plays a role in judicial drift over time is experience. Justices Powell, Blackmun, and Stevens each pointed to the years of death penalty cases in which they participated as crucial factors in their loss of faith in the system of capital punishment. Exposed in detail, and repeatedly, to a broken system, they eventually questioned the premises on which their earlier votes had been based.

That experience may explain drift on the death penalty but it is not a general explanation for leftward drift. One could, after all, describe a Justice who became more conservative on some issue as responding to negative experience with some liberal doctrine–affirmative action, say.  Judicial experience no doubt shapes the views of long-serving judges, but not necessarily in a liberal direction.

In the end, I would offer the following provocative suggestion: More often than not, Justices drift left because American constitutional law itself has a "liberal bias."  The judicial process calls for the evenhanded application of principles.  Yet as Justice Benjamin Nathan Cardozo wrote (when he was a judge on New York's highest court) in his book The Nature of the Judicial Process, a legal principle has a "tendency . . . to expand itself to the limit of its logic."  A Supreme Court Justice who wants to deny the expansion of rights under open-ended constitutional provisions such as the First, Fifth, and Fourteenth Amendments will find himself or herself struggling against the natural pull of the job.

Hmmm.  Not only am I not completely convinced by "provocative suggestion" that American constitutional law itself has a "liberal bias," but I am completely mystified why Professor Dorf did not reference the "open-ended constitutional provisions" of the Second, Fourth, and Eighth Amendments in support of his thesis. 

April 21, 2010 in Who Sentences | Permalink | Comments (10) | TrackBack

Interesting report on long state sentence for child porn offense

At the same time I have been following closely the debates and controversies over long child porn offense sentence in the federal system, I have been wondering how (and how many) such cases are handled at the state level.  On that front, I found interesting this local story from Florida headlined "Gibsonton man gets 55 years in child porn case."  Here are the details:

A Gibsonton man arrested in a sting in which he thought he was going to have sex with a 12-year-old mentally challenged girl was sentenced today to 55 years in prison. Deputies found thousands of photographs and videos of child pornography on the computer of Carl M. Cocking, 37.

Prosecutors said it was the longest prison term ever handed down in Hillsborough County for downloading child porn. "Every time these images are made, a child has been raped, a child has been victimized and a child has lost its innocence," Hillsborough Circuit Judge Chet A. Tharpe said in imposing sentence. "It has to be stopped."

The sentence was the maximum Tharpe could mete out under a five-page plea bargain Cocking worked out with prosecutors. He was charged with using a computer to solicit child pornography, two counts of attempted lewd and lascivious battery, and 45 counts of possessing more than 10 images of child pornography.

Cocking faced 1,300 years under state law, but prosecutors said 55 years was the maximum sentence under state sentencing guidelines.

Prosecutors took the rare approach of showing some of the images to Tharpe before sentencing. Assistant State Attorney Rita Peters said it was the first time she had done so. The screen was placed so only Tharpe, the lawyers and a detective could see it. The images included the rape of a 2-year-old who cried for her mother during the attack.

"It is beyond my wildest dream that you would watch that and get sexual satisfaction," Tharpe told Cocking. "Thank God the detectives caught you before you acted out because you were going to act out." Tharpe remained visibly upset afterward....

Cocking's lawyers sought to lessen his sentence, saying he has been in constant outpatient therapy since being released on bail and that he didn't flee. Peters said she took the step of showing the images to Tharpe so he could understand the degree of Cocking's depravity. "He needed to be incarcerated," she said.

April 21, 2010 in Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (37) | TrackBack

Notable UK court ruling on human rights attack on sex offender registry

Because I know almost nothing about UK law and procedure, I cannot quite tell if this new story from The Guardian is a just notable or really huge.  Still, its headline alone caught my attention: "Sex offenders win appeal against indefinite inclusion on register; Supreme court backs case of two sex offenders who claim being on register for life without review breaches their human rights." Here is more:

A supreme court ruling today has opened the way for hundreds of sex offenders to challenge whether they should remain on the sex offenders' register for life. The ruling backed a case brought by two convicted sex offenders who challenged their indefinite inclusion on the register without any right to a review, claiming it breached their human rights.

One, who was convicted of rape when he was 11 years old, argued that being on the register had prevented him taking his family on holiday or playing rugby league. The other offender, Angus Aubrey Thompson, now aged 59, was jailed for five years for indecent assault 14 years ago. Their lawyers argued they had been labelled for life without any opportunity to demonstrate they had reformed.

The current legislation says that any sex offender sentenced to a prison sentence of at least 30 months is placed on the register for life and has a duty to keep the police informed of any change of address or travel abroad.

The supreme court decision published today follows an appeal by the home secretary against an earlier appeal court ruling that the lack of any review was incompatible with the European convention on human rights, in particular the right to respect for a private and family life.

Lord Phillips, the supreme court president, said: "It is obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified."

The judges stressed that the ruling did not mean the sex offenders' register itself was illegal and said that it was entirely reasonable and lawful to monitor someone for life if they were assessed to be a danger to society.

But the judges rejected the home secretary's appeal, saying there was no evidence to show it was impossible to identify which sex offenders had reformed. Home Office research submitted during the case showed that 75% of sex offenders who were monitored over a 21-year period were not reconvicted of any offence.

Mike Pemberton, solicitor for F, who was convicted of the rape of a six-year-old boy when he was 11, said his client wanted a fair chance to show that he had reformed.

In addition to hoping I might be able to get a copy of or link to this opinion, I also hope informed readers might be able to use the comments to tell me whether this is huge news or not really that big a deal.

UPDATE:  A couple of helpful readers have sent me this link to the UK ruling [2010] UKSC 17, and have also confirmed my instinct that this is a big deal.

April 21, 2010 in Collateral consequences, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (11) | TrackBack

New LDF report on the impact of felon disfranchisement laws

I received via e-mail a press release from the NAACP Legal Defense and Educational Fund linking me to a new report on felon disenfranchisement.  Here is the start of the press release:

Today, the NAACP Legal Defense and Educational Fund (LDF) released Free the Vote: Unlocking Democracy in the Cells and on the Streets, a report detailing the impact felon disfranchisement laws have on communities of color nationwide. "Securing the right to vote for the disfranchised-persons who have lost their voting rights as a result of a felony conviction-is widely recognized as the next phase of the voting rights movement," said John Payton, LDF Director-Counsel.

Nationwide, more than 5.3 million Americans who have been convicted of a felony are denied access to the one fundamental right that is the foundation of all other rights. Nearly 2 million, or 38%, of the disfranchised are African Americans.

The report details that a staggering 13% of all African-American men in this country-and in some states up to one-third of the entire African-American male population-are denied the right to vote. Given current rates of incarceration, an astonishing one in three of the next generation of Black men will be disfranchised at some point during their lifetime.

Nowhere are the effects of felon disfranchisement more prominent than in the Black community, where more than 1.5 million Black males, or 13% of the adult Black population, are disfranchised-a rate seven times the national average.

The full report, which is relatively brief and intriguingly has as many pictures as pages, can be found at this link

April 21, 2010 in Collateral consequences, Who Sentences | Permalink | Comments (0) | TrackBack

Should we care that Cameron Douglas, though sentenced to 5 years in prison, will likely be out in 2012?

I had a wonderful discussion with my sentencing class this morning about the realities of the Cameron Douglas sentencing and his forthcoming prison term.  We discussed the legal reality that, because parole was eliminated from the federal sentencing system via the Sentencing Reform Act of 1984, the 5-year prison term he was give yesterday (basics here) "really meant" he was subject to being incarcerated for half a decade.  But then we got into the practical realities of calculating his "real" time, and we discovered that he might be out of federal prison as early as 2012.  Here's why:

1.  Cameron Douglas was given credit yesterday for the 8 months he has already served pending sentencing, so his 60-month sentence already has only 52 months left.

2.  Cameron Douglas, like all federal prisoners, can earn up to 15% off his sentence for "good time."  Though the exact calculation of that time is now an issue pending before the Supreme Court in Barber v. Thomas (background here), it seems fair to assert that Douglas will be able to earn at least another 8 months off his sentence if he behaves himself.  Thus, his "real" federal prison term is potentially down to 44 months.

3.  Cameron Douglas, like many federal prisoners struggling with substance abuse, should be eligible for the RDAP program (background here), which could lead to a reduction of another year off his sentence.  Thus, his "real" federal prison term is potentially down to 32 months.

If my basic analysis and math is right (and I am not an expect on these back-end prison law issues), it seems that Cameron Douglas might be able to celebrate Hanukkah and Christmas 2012 at home with his famous father and step-mom.  In addition, because the RDAP program may also permit extended treatment and transition via half-way house placement and home confinement, Cameron Douglas might even get to watch the Summer 2012 Olympics from the comfort of his own home.

The big follow-up question to all real-world sentencing math is whether we should care or be at all bothered that Cameron Douglas, despite being sentenced to imprisonment for five years in federal court just yesterday, will likely walk out of federal prison in perhaps just over two years. 

Some related posts:

April 21, 2010 in Celebrity sentencings, Drug Offense Sentencing, Who Sentences | Permalink | Comments (12) | TrackBack

SCOTUS to keep us waiting for juve LWOP rulings in Graham and Sullivan

As detailed in this post late last week, I thought there was a real chance that the Supreme Court might this week finally issue rulings in Graham and Sullivan, the two juve LWOP Eighth Amendment cases from Florida which were argued nearly six months ago.  But, as detailed here at How Appealing, the three rulings handed down today by the Justices were all concerning civil issues, and I believe it is unlikely we will get any more opinions issued until at least next week.

Though I am disappointed, I am not surprised that the Justices are taking their time with Graham and Sullivan.   As I have explained in prior posts, these cases have the potential to be the most consequential non-capital sentencing Eighth Amendment rulings in the Court's history.  Getting tese rulings done right is a lot more important than getting them done quickly.  In addition, I suspect that there will be multiple opinions in these cases no matter how they get resolved.  Indeed, the continuing delay reinforces my gut feeling that we may get four or five or even more separate opinions in these important Eighth Amendment cases.

April 21, 2010 in Graham and Sullivan Eighth Amendment cases, Who Sentences | Permalink | Comments (2) | TrackBack

Research review showing home leave and work release can reduce recidivism

In light of on-going concern with recidivism rates and interest in effective re-entry programming, this paper newly available via SSRN should be on a reading list for everyone interested in evidence-based sentencing reforms.  The paper is titled "Reconsidering the Effectiveness of Temporary Release: A Systematic Review," and here is the abstract:

This article offers a systematic review of the ‘what works’ literature on temporary release, particularly as concerns home leave and work release programs. Against the ‘nothing works’ proposition, the findings suggest that both home leave and work release schemes can be effective in reducing recidivism rates, while work release may also enhance post-release employment prospects. The final section discusses the directions future evaluative research should take, with special reference to the need for drawing the link between the procedural and outcome dimensions of temporary release.

UPDATE:  I just noticed on SSRN this related (and slightly more recent) piece about temporary release from the same author, Leonidas K. Cheliotis, which is titled "Before the Next Storm: Some Evidence-Based Reminders About Temporary Release."

April 21, 2010 in Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (5) | TrackBack

Fascinating report on backstory behind presidential pardon problems

This new post at Main Justice, which is headlined "Despite Efforts, Pardon System Still Unchanged," provides some new and notable details about discussion and debate over pardon policy inside the Obama Administration.  Here are excerpts:

Behind closed doors Justice Department and White House officials have been considering changes to the system since the start of the Obama administration, though the White House appears to have scaled back its ambitions after key personnel changes.

Former White House Counsel Greg Craig, now a partner at Skadden, Arps, Slate, Meagher & Flom, led a push for major reforms before stepping down last November, according to two people with knowledge of the discussions.  He received support from then-Deputy Attorney General David Ogden, who recently returned to his practice at Wilmer Cutler Pickering Hale and Dorr LLP, the individuals said.

Attorney General Eric Holder — whose involvement in the controversial pardon of fugitive financier Marc Rich at the end of the Clinton administration threatened his career — also expressed interest in making the clemency program “more systematic,” said one of the individuals.

The Justice Department’s Office of the Pardon Attorney receives clemency applications and makes recommendations to the White House via the Office of the Deputy Attorney General.  A steep backlog in the pardon office coupled with fewer clemency grants in recent years has driven applicants to reach out to the White House directly.

Some critics say the current system is obsolete because it provides the president with no assurances that his grants will be free of political consequences. Meanwhile, they say, the tool used in the past to “correct injustices that the ordinary criminal process seems unable or unwilling to consider,” as Justice Anthony Kennedy once wrote, has fallen into disuse.

An idea favored by Craig was the creation of a blue-ribbon commission or an advisory process inside the Justice Department but apart from the pardon attorney, the people said.  After he stepped down in November, however, discussions turned to developing criteria under which clemency petitions should be granted in the existing program.

“Like every administration, we are updating the policy guidance for DOJ on requests for executive clemency,” a White House official said.  Craig and Ogden declined to comment.  A Justice Department spokeswoman declined to comment while the policy was under review.

The clemency issue gained attention after the Supreme Court heard arguments last month in Dillon v. U.S., a case brought by a federal prisoner who was sentenced in 1993 to 27 years behind bars for trafficking in crack cocaine.

Percy Dillon, described as a model prisoner, asked the court to decide whether the U.S. Sentencing Commission erred in limiting federal judges’ discretion in new sentencing hearings under Congress’ 2007 reduction in the crack guidelines.  A federal judge had called his original sentence “unfair” and “entirely too high.”

At one point, Justice Kennedy asked the government’s lawyer whether the Justice Department ever recommends clemency for prisoners like Dillon.  He also questioned whether the lack of commutations last year and the five the year before signaled that “something is not working in the system.”

It is quite sad (and perhaps quite telling) that the two official inside the Obama Administration who were most forcefully pushing for clemency reforms are now out of the Administration.  And, of course, it is even sadder and even more telling that we are now deep into the Obama era and have yet to see any tangible evidence of significant hope and change in this setting or in many other federal criminal justice contexts.

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:

April 21, 2010 in Clemency and Pardons, Criminal justice in the Obama Administration, Who Sentences | Permalink | Comments (5) | TrackBack

April 20, 2010

"Did Michael Douglas' Son Get Celeb Treatment With Reduced Sentence?"

The title of this post is the headline of this hard-hitting report from the folks who are not afraid to ask the tough questions at E! Online.  Here's more:

Sure, having a movie star father might have contributed to getting Cameron Douglas into this legal mess.  But it also seems to have helped get him out of it.

Michael Douglas' son was sentenced to five years in prison today, just half of what is otherwise (like, for offenders without famous relatives) a minimum — yes, minimum — 10-year term.  It's unclear why at this point, but earlier today all parties agreed, on the record, that Douglas was not bound by mandatory minimums.

U.S. District Judge Richard Berman said the sentence was the 31-year-old's "last chance to make it," and the decision came down after papa Michael, gramps Kirk Douglas and stepmom Catherine Zeta-Jones each penned personal letters to the court asking for leniency. Guess it worked!

So, dear knowledgeable readers, what say you in response to the question posed by the folks at E!?

Some related posts:

April 20, 2010 in Celebrity sentencings, Drug Offense Sentencing, Who Sentences | Permalink | Comments (22) | TrackBack

SCOTUS discusses restitution deadlines in Dolan

As a fan of sentencing options beyond just incarceration, I am probably one of a very small group of sentencing geeks excited to find time this evening to read the transcript from today's SCOTUS oral argument in Dolan v. US.  The transcript is available at this link, and this press report about the argument suggests that some pretty interesting jurisprudential issues are in play:

The Supreme Court heard arguments Tuesday on whether a judge had the authority to order restitution more than 90 days after sentencing in the case of a hitchhiker's attacker. "The victim gets nothing because the judge waited too long," Justice Samuel Alito said, paraphrasing the appeal. "Do you think that is what Congress had in mind?"

For the first time since 1990, the justices agreed to interpret federal restitution law in the case of Brian Dolan, who beat up a hitchhiker and left him on the side of the road, bleeding, unconscious and with several broken bones. He racked up more than $100,000 in medical bills with the Indian Health Service.

Nolan was sentenced to one year and nine months in prison, with restitution to be determined later, "pending the receipt of additional information."   He was later slapped with a $104,650 restitution order, nearly six months after the 90-day deadline established in the Mandatory Victims Restitution Act.

Attorney Pamela Karlan urged the justices to overturn the restitution order, saying the lower court lacked the authority to extend the 90-day window. Toby Heytens, arguing for the government, acknowledged that the judge missed the deadline, but said it's up to Congress -- not the courts -- to set the consequences of a court's failure to act.

Of course, I welcome any and all fellow sentencing geeks to use the comments to make me feel less strange for getting excited about finding time to read the Dolan transcript.  (Alternatively, readers can tap into a different dimension of my multi-faceted geekdom by watching tonight's notable installment of ESPN's 30 for 30 series.)

April 20, 2010 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (10) | TrackBack

Cameron Douglas sentenced to five years for federal drug offense

This New York Daily News report and this New York Times piece provide some noteworthy details from today's celebrity federal sentencing in NYC. From the Daily News:

Cameron Douglas -- son of Michael Douglas and grandson of Kirk Douglas -- is going to prison for more than four years despite the pleas of his famous family.

As he sentenced the Hollywood scion, Federal Judge Richard Berman said Tuesday that too many of the letters he received treated him like a victim. "Get over that idea," he said.

Still, he knocked a big chunk off the 10 years the admitted junkie could have faced for conspiring to distribute crystal meth and cocaine. He gave the 31-year-old 60 months in prison, with credit for the eight months he's already served....

From the Times:

Cameron Douglas, the 31-year-old son of the actor Michael Douglas, was sentenced to five years in prison on drug-related charges in Federal District Court in Manhattan on Tuesday.

In January, Mr. Douglas, a D.J. and an aspiring actor, pleaded guilty to charges that he distributed large quantities of methamphetamines and cocaine over a three-year period. He also pleaded guilty to possession of heroin, a charge that was brought while he was on house arrest and awaiting trial.

Judge Richard M. Berman also sentenced Mr. Douglas to five years of supervised release; the judge said that he was not obligated to follow federal sentencing guidelines, which normally would call for a 10-year sentence for such charges.  Federal prosecutors did not challenge the sentence.

Also, anyone interested in getting a sense of the media circus surrounding this celebrity sentencing, TMZ has video of Cameron Douglas's parents leaving the federal courthouse building where their son was sentenced.

April 20, 2010 in Booker in district courts, Celebrity sentencings, Drug Offense Sentencing | Permalink | Comments (0) | TrackBack

Seeking advice on how best to "celebrate" 4/20 day as a law professor

420_ecard As perhaps many readers may already know, today is so-called 4/20 day , which is described this way on Wikipedia:

April 20 ("4/20" in U.S. date notation) has evolved into a counterculture holiday, where people gather to celebrate and consume cannabis.  In some locations this celebration coincides with Earth Week.  Some events may have a political nature to them, advocating for the decriminalization of non-medical cannabis in the United States.

This webpage at NORML details how this marijuana legalization group is celebrating its favorite day:

[T]his '4/20' celebration in 2010, as is NORML tradition, is a combination of both the serious and silly!

There will be dozens of major 4/20 ‘protestivals’ today from New York City to Seattle, to the expected largest one in the nation I’m speaking at in Denver Colorado.  Major newspaper articles and stories on TV will abound by day’s end. In fact whole television networks such as G4, Comedy Central, Spike and Current TV will devote some or all of their programming today to celebrating cannabis and, implicitly, the herb’s reform.

Also today, NORML launches a new advertisement for 4/20 on Times Square’s largest electronic billboard calling out New York City politicians and law enforcement for having one of the highest — and most racially disparate — cannabis arrest rates in the United States.  The advertisement will run 18 times a day until late May, and will be seen by an expected 1.5 million Times Square visitors.

These protestivals and public celebrations of cannabis culture in North America is a greatly anticipated and celebratory annual event at NORML since the mid 1990s, but the serious political message of this wonderfully creative day (beyond the obvious one of ‘re-legalize cannabis now!’) for this specific year is to direct as much NORML membership and public attention as possible to donate and support the voter initiative on the ballot in California this very November that will effectively legalize cannabis for adult use, cultivation and sales.  Going into our 40th year, NORML’s staff and board of directors have made the passage of California’s voter initiative to legalize cannabis the number #1 political priority for the organization.

As I have suggested in some prior posts, I view the economic and related utilitarian/libertarian argument for legalizing marijuana to be fairly strong these days.  At the very least, I think it important and valuable for serious people in serious settings to have serious conversations about whether and how pot prohibitions should be scaled back.  Thus, I plan to "celebrate" 4/20 day by raising these issues (indirectly) in my Criminal Procedure class this afternoon.  But, as my post title suggests, I welcome other advice concerning how best to mark this day.

Some related older and more recent posts:

April 20, 2010 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (21) | TrackBack

Third Circuit finds (way) below-guideline crack sentence unreasonable

In a lengthy opinion that covers lots of reasonableness review topics, a Third Circuit panel today in US v. Merced, No. 09-1844 (3d Cir. Apr. 20, 2010) (available here), reverses a 60-month sentence given to a crack offender with a long criminal history whose guideline range was 188 to 235 months.  Here is a key concluding paragraph from the main opinion:

In summary, we hold that the District Court committed two errors.  First, it may have sentenced Merced pursuant to a personal policy disagreement with the Guidelines; specifically, disagreement with the scope of the career offender provision of U.S.S.G. § 4B1.1.  While granting a variance on such grounds may be permissible, the District Court must, at the very least, explain itself more thoroughly than it has so far.  On remand, the District Judge should clearly explain whether he is granting a variance based on a policy disagreement with § 4B1.1. If so, he must justify that decision to the extent required by our precedents.  Second, the District Court failed to analyze a highly relevant sentencing factor, § 3553(a)(6).  The Court’s choice of sentence may have created a risk of unwarranted disparities between Merced and similarly situated recidivist crack cocaine dealers.  The Court should have considered this issue, and addressed the government’s argument that a Guidelines sentence was necessary to promote uniformity in sentencing.

April 20, 2010 in Booker in the Circuits, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

Does a key line in Stevens foreshadow the demise of "honest-services" fraud statute?

I found Chief Justice Roberts opinion for the Supreme Court in the Stevens "animal porn" case (basics here) to be a pleasure to read for a number of reasons (including my discovery that my new iPad is great for reading SCOTUS slip opinions).  But one particular sentence jumped out as an indication that there may be other forthcoming SCOTUS rulings that notable federal criminal statutes are constitutionally problematic.  Specifically, this sentence in the Court's discussion of prosecutorial discretion struck me as a harbinger of rulings to come:

We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.

If I recall oral arguments correctly, I remember that a key part of the US Government's defense of the broad "honest services" fraud statute at issue in the Black case and some other pending SCOTUS cases (including Skilling) was its assertion that federal prosecutors would always and only use the statute responsibly.  This line from the Stevens decision today suggests that such a promise does not comfort eight out of nine of the Justices.  (In this context,I think it extra notable and telling that the lone dissenter in Stevens, Justice Alito, is also the lone former federal prosecutor on the Court.)

April 20, 2010 in Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (28) | TrackBack

Ohio completes another successful one-drug lethal injection execution

As detailed in this local press report, which is headlined "Teen's killer executed as victim's mother watches," Ohio completed this morning what I believe is its fifth "uneventful" execution using its one-drug lethal injection protocol. Here are the basic detail:

As his victim's mother watched, Darryl Durr was executed this morning for abducting and murdering 16-year-old Angel Vincent of Elyria. Durr, 46, was pronounced dead at 10:36 a.m. after being injected with a single, large dose of thiopental sodium, a powerful anesthetic.

Durr's legal team threw up a flurry of last-minute appeals, claiming he might have a severe allergic reaction to the killing drug and that it has not been approved for executions by the U.S. Food and Drug Administration.  The American Civil Liberties Union of Ohio filed a suit as well, arguing that Durr was illegally prevented from obtaining a DNA test on the dead girl's necklace that could have produced evidence showing he was not guilty of the crime.

State and federal courts rejected all the appeals, however, clearing the way for Durr's execution -- Ohio's fourth in as many months and 37th since 1999.  Gov. Ted Strickland rejected Durr's clemency request yesterday.

The condemned man contended to the end that he was innocent not only of killing Vincent, but of committing rapes of other young women with which he was also charged.

April 20, 2010 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (15) | TrackBack

SCOTUS affirms unconstitutionality of federal "animal porn" prohibition in Stevens

In the only opinion handed down this morning, the Supreme Court today in United States v. Stevens, No. 08-769 (available here), affirmed the Third Circuit's judgment that 18 U.S.C. § 48, which criminalizes certain depictions of animal cruelty, is unconstitutional.  The vote was 8-1, with Chief Justice Roberts writing the opinion for the Court and with Justice Alito writing a lengthy dissent.

The opinions appear to engage significantly with the Supreme Court's 30-year-old ruling in Ferber that child porn is not subject to First Amendment protections, though I will need some time to digest the opinion before seeing if there is anything in Stevens that could really impact day-to-day federal criminal justice policy or practice.

April 20, 2010 in Offense Characteristics, Who Sentences | Permalink | Comments (18) | TrackBack

New coverage of FSR at the website of the Vera Institute of Justice

I am pleased to be able to spotlight that the terrific Center on Sentencing & Corrections at the Vera Institute of Justice has created this new webpage featuring the work of the Federal Sentencing ReporterAlison Shames, the Associate Director of the Center on Sentencing and Corrections, provides this kind introduction to this new web locale:

Vera and the Federal Sentencing Reporter share an approach to policy change that relies on information, analytical examination, and innovation.  Rare among scholarly journals, the Federal Sentencing Reporter focuses — in its authorship and readership — on academics as well as practitioners.  In its pages, conversations take place among judges, lawyers, policy makers, and scholars.  The publication is an intellectual resource that people in the field turn to for solutions and that academics rely on to propose, learn about, and discuss new ideas.  Each issue offers in-depth analysis on a wide range of topics related to sentencing policies and practices.

The Federal Sentencing Reporter is published five times a year. For each issue, Vera posts the “Editor’s Observations” (a regular feature that highlights the themes of the issue), a select article, and the table of contents on its website.  Other articles, subscription services, and archives are available through University of California Press.

April 20, 2010 in Recommended reading | Permalink | Comments (0) | TrackBack

Is seeking a fourth death sentence a sound use of limited state resources?

The question in the title of this post is prompted by this effective local story out of California, which is headlined "Mounting costs to try killer Duncan for slaying of Beaumont boy fuel debate since death sentence awaits Duncan elsewhere."  Here are parts of the fascinating on-going story:

The death penalty trial of Joseph Edward Duncan III already has cost Riverside County more than $167,000, and legal experts say the murder trial could total several million dollars by the time it's completed.

Since January 2009, the Riverside County district attorney's office has been prosecuting Duncan, who has already been sentenced to death for murders in Idaho, in the 1997 killing, torture and sexual assault of 10-year-old Anthony Martinez of Beaumont.

The district attorney extradited Duncan, 47, to face murder charges in Indio for Anthony's death after Duncan was convicted of murdering a family of four in Idaho. He was sentenced by an Idaho federal and state court to three death sentences and nine life terms.

Riverside County so far has been billed at least $167,665, according to documents detailing expenses for the defense, jail housing and transportation of Duncan. Those numbers do not include prosecution or defense attorney hours or district attorney investigation costs.

Martinez's mother, Diana Gonzales, who lives in Kansas, said she supports the district attorney prosecuting the case.  Gonzales said her family and the community of Beaumont have waited more than 13 years for her son's killer to be sent to trial and find justice for Anthony....

Duncan has confessed to killing Anthony and is representing himself.  Since he has refused an attorney, he is prohibited by state law from pleading guilty.  He is spending his days at the Indio Jail and has a tentative Sept. 1 trial date, but Duncan has said he may need another one to three years to prepare his defense.

Duncan was transferred from federal death row in Terre Haute, Ind., to California in an agreement with federal prosecutors that he would be returned immediately if an order for execution is issued. He will return to federal custody if convicted in Riverside County.

Riverside County Public Defender Gary Windom has questioned why Duncan is being prosecuted here, when he already has been convicted and sentenced in another case and the county is in a fiscal crisis.  The public defender's office represented Duncan until he was allowed to act as his own attorney in September.

"No matter how you slice it, it's an expensive commodity," Assistant Public Defender Robert Willey said. "There's absolutely no reason to try this case here.  We're dedicating courtroom time and a trial whenever it may go.  And at any given point in time, the federal authorities could call and say, 'We're ready to execute him.' "

District Attorney Rod Pacheco has stood by the decision to prosecute Duncan to achieve justice for Anthony Martinez.  "The reason we feel this is important is a 10-year-old boy was kidnapped, tortured and murdered in our county and it's important to us that that child gets justice," district attorney's spokesman Michael Jeandron said.  "We're not going to tell a 10-year-old child and his family that their case is not important enough to prosecute."

The average death penalty trial can cost $3 million to $7 million, said Michael Radelet, a University of Colorado sociology professor and death penalty expert. "What goal is accomplished for spending several million on this case when we know the prosecutor will look tough on crime?" Radelet said. "It's not about whether this case is worth it. It's about whether it's worth it compared to other ways to spend the money and keep schools open."...

Jeandron said the case has not had any significant impact on the county's budget.  In response to the case being politically motivated, he said the case is being pursued to ensure justice for Anthony. "Whether or not Anthony Martinez deserves justice is not an issue of whether it's financially acceptable. We're not in a position to say if it's too expensive to consider that," Jeandron said. "What we're doing will double lock the door so a serial killer and rapist is sentenced to death, whether it be in Idaho or California.  We're making sure his fate is sealed."...

Anthony's mother said her family and the community of Beaumont have paid taxes for purposes like Duncan's trial.  "The time is now to ask the government to use our money to put Joseph Duncan on trial for Tony's kidnapping and murder," Gonzales wrote.  "How much is a person's life worth?  How do we as a society say that it is too expensive to give justice to a 10-year-old boy that was kidnapped at knifepoint and dumped like garbage?  Do we dare put a price tag on justice?  My son's life was worth every cent that is being spent on prosecuting the monster that took his life!!!" she wrote.

April 20, 2010 in Death Penalty Reforms, Who Sentences | Permalink | Comments (7) | TrackBack

Noting SCOTUS disinterest in juve priors as basis for enhanced adult sentence

The fact that the Supreme Court could soon announce new constitutional principles for sentencing juvenile offenders in in the pending Graham and Sullivan cases makes extra interesting the Justices' decision to deny cert in a case concerning juve priors and an Apprendi challenge from California.  This piece from the San Francisco Chronicle, which is headlined "'Three strikes' can count juvenile convictions," provides the details:

The U.S. Supreme Court on Monday upheld California judges' authority to count adult felons' convictions in juvenile court in determining whether to sentence them to life in prison under the state's "three strikes" law.

The court denied a San Jose man's appeal of his 2005 sentence for possessing a gun as a convicted felon. Vince Nguyen's sentence was doubled, to 32 months, based on his assault conviction in a 1999 juvenile court proceeding, when he was 16.  Under the three strikes law, he could have been sentenced to 25 years to life in prison if his record had included a second such conviction as a juvenile.

The 1994 three strikes law, the nation's toughest sentencing measure for repeat offenders, requires a sentence of 25 to life for anyone convicted of a felony at age 18 or older who has committed at least two serious or violent felonies in the past.  With one such previous conviction, the normal sentence for the new crime is doubled.

Unlike most states with repeat-felon laws, California classifies convictions for serious or violent crimes in juvenile court, at age 16 or 17, as strikes.

Nguyen claimed that increasing a sentence based on a juvenile conviction violated a U.S. Supreme Court ruling in 2000 entitling defendants to a jury trial on any facts used to lengthen their sentences beyond the usual maximum term.  The California Supreme Court ruled against Nguyen in July 2009, saying the use of his juvenile conviction to increase his sentence as an adult did not violate his right to a jury trial.

April 20, 2010 in Almendarez-Torres and the prior conviction exception, Offender Characteristics, Who Sentences | Permalink | Comments (3) | TrackBack

April 19, 2010

Great coverage of "Marijuana & Money" at CNBC

CNBC has a huge new special report on marijuana now appearing on it website. The Editor's Introduction to the coverage, which includes links to lots of articles on lots of legal (and non-legal issues), starts and ends this way:

The legalization of marijuana is no longer the unthinkable.

On a state level, in California, for instance, it could be a reality later this year.  Some 56 percent of people polled there already support the regulation and taxation of marijuana, ahead of a November public referendum to do just that.

Medical marijuana is now legal in California and 13 other states, while more are considering it.  The drug has been decriminalized in 12 states, and in Denver voters opted to legalize a small amount for personal consumption for those over 21 years-old, even though Colorado law says otherwise.

All of this is creating a legal thicket involving jurisdictional authority because on a federal level marijuana is not legal in any way, shape or form.  As the legal debate grows louder, so do other ones about what is already one of the nation's biggest cash crops....

CNBC's "Marijuana & Money" explores the concept of legalization in largely an economic context, which is why you'll find ample representation of critics and opponents--both in and out of government--who say marijuana remains the "gateway drug" and the cost-benefit analysis of legalization has been greatly simplified....

"Marijuana & Money" explores virtually every angle and aspect of the marijuana debate, from the economics of taxation and law enforcement, the likely business models of production and consumption; the lobbying effort and public health debate, professional and workplace issues, and, of course, the rapidly evolving world of legalized medical marijuana.  Much of this you can track through individual state pages and a state-by-state tables.

In some three dozen articles, videos and slideshows — and another dozen, diverse commentaries (pro, con and neutral) from major players and thoughts leaders in the arenas of politics and government, law, medicine, sociology, religion and entertainment — "Marijuana & Money" catches a country in clear transition and a debate in high gear.

Marijuana is something many Americans know about — to one degree or another.  (By one government estimate, 10.1 percent of the population admitted to using marijuana in 2007).  It's part of American history, culture and our economy.

Kudos to CNBC for giving this important issue the coverage it needs and deserves (and thanks to the reader who alerted me to this new resource).

April 19, 2010 in Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack

Fascinating little expungement ruling concerning Second Amendment rights from the Sixth Circuit

The Sixth Circuit has a fascinating little ruling today concerning expungement and gun rights today in US v. Carey, No. 09-3399 (6th Cir. Apr. 19, 2010) (available here).  Here is the heart of the defendant's argument in Carey as explained by the panel:

Carey argues that the Second Amendment to the United States Constitution gives him a fundamental right to possess or carry a firearm, and that the denial of his expungement motion for his valid conviction denied him this fundamental right, resulting in a violation of his Equal Protection and Due Process rights under the Fifth Amendment.  Essentially, Carey contends that, because expungement of his conviction would allow him to regain his Second Amendment rights, a court’s denial of expungement infringes upon his fundamental right.

The panel ruling quotes the well-worn dicta from Heller about laws prohibiting felons from possessing guns, and then rejects Carey's claim this way:

After Heller, this Court affirmed that prohibitions on felon possession of firearms do not violate the Second Amendment.  United States v. Frazier, 314 F. App’x 801 (6th Cir. Nov. 19, 2008).  In short, Heller states that the Second Amendment right is not unlimited, and, in fact, it is specifically limited in the case of felon prohibitions.  Heller, 128 S. Ct. at 2816-17.  Because Congress’s prohibition on felon possession of firearms is constitutional, it follows that the burdens associated with the congressionally-created expungement exception in 18 U.S.C. § 921(a)(20) do not violate the Second Amendment.  Accordingly, the district court did not abuse its discretion in denying Carey’s motion for expungement.

Because of both the posture of the case and the nature of the panel's ruling, the Carey decision arguably raises more questions than it answers.  Specifically, in the course of concluding merely that the district court did not abuse its discretion by denying the motion to expunge, the panel implicitly suggests that the district had discretion to grant the motion within its equitable jurisdiction.  Moreover, it is unclear if the defendant here contended that he needed and wanted to be able to possess guns in conjunction with self-defense of his home; such an assertion would implicate the core of Heller and would perhaps satisfy the Sixth Circuit standard of "compelling and extraordinary circumstances for a Court to grant" a motion for expungement. 

In other words, though affirming the denial of the expungement motion in Carey, the Sixth Circuit has perhaps indicated that the right defendant making the right showing might be able to get the right judge to grant such a motion.  Whether such a defendant will find such a judge in the Sixth Circuit remains to be seen.

April 19, 2010 in Criminal Sentences Alternatives, Second Amendment issues, Who Sentences | Permalink | Comments (3) | TrackBack

New USSC amendments expanding prison alternatives and addressing certain offender characteristics

As detailed in this just posted official press release, the United States Sentencing Commission has "voted to promulgate sentencing guideline amendments that expand the availability of alternatives to incarceration and address the relevance of certain specific offender characteristics in sentencing."  Here's more of the details from the press release:

The Commission also voted to promulgate guideline amendments on additional topics including hate crimes, the calculation of a defendant’s criminal history, and sentencing corporate offenders.

The amendment on sentencing alternatives has several key components.  First it informs courts that departures from the guidelines may be warranted in situations where an offender’s criminal activity is related to a treatment issue such as drug or alcohol abuse or significant mental illness and sentencing options such as home or community confinement or intermittent confinement would serve a specific treatment purpose.  The Commission also recommends in a new application note that courts take into consideration the effectiveness of residential treatment programs as part of their decision to impose community confinement. Second, the Commission voted to increase the availability of alternative sentencing options by expanding by one offense level Zones B and C in the guidelines’ sentencing table.  According to the guidelines, offenders in Zones B and C are eligible, in the court’s discretion and subject to statutory limitations, for alternatives to straight imprisonment such as split sentences, home or community confinement....

The Commission also voted to amend guideline policy statements regarding age, mental and emotional conditions, physical condition, and military service recognizing that these factors may be relevant to the sentencing process courts undertake.  Previously, these factors were deemed as “not ordinarily relevant” in determining whether a sentence outside the guidelines was warranted. The amended policy statement provides that these factors may be relevant if they are relevant to an unusual degree and distinguish the case from the typical case.  This amendment reflects the Commission’s extensive review of offender characteristics that included reviewing case law and relevant literature, receiving public comment and hearing testimony, and conducting extensive data analyses....

Any amendments made by the Commission to the guidelines must be submitted to Congress on or before May 1 of each year and become effective on November 1 if not disapproved by Congress.

Kudos to the USSC for moving on these important federal sentencing fronts.  Though I want to see the exact language of the amendments to figure out if mondo-kudos are meritted, the Commission is to be complimented for (finally!) taking a more dynamic approach to some key issues that called for additional attention in the wake of Booker.

April 19, 2010 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Who Sentences | Permalink | Comments (8) | TrackBack

What's the status of crack/powder sentencing reform in the House?

As detailed in this post, just over a month ago the full US Senate unanimously approved legislation to reduce (but not eliminate) the notorious 100:1 ratio in the amount of powder cocaine versus crack cocaine that trigger statutory mandatory minimum sentences.  This compromise legislation as passed by the Senate cuts the ratio to roughly 18:1, and it does so by keeping powder sentences the same and by essentially reducing the severity of the mandatory minimums for crack offenses. 

As I have noted in prior posts, most advocates for crack/powder sentencing reform view this Senate compromise as an improvement over the status quo, but a lot less than was sought/hoped by reform advocates.  Consequently, as I flagged in this follow-up post, the next big question was whether the House will adopt this compromise so that it can become law.  Now, a full month later, we are still awaiting news on this critical question.

I have heard rumors from various sources that the House was likely to go along with the Senate compromise, and that this might get done in April.  But I have yet to hear any official word on this front, and I am wondering if (and worrying about) inertia and competing priorities might be preventing the House from getting this done. 

Helpfully, as we await further legislative developments, the folks at FAMM have a new FAQ (frequently asked questions) about pending federal legislation to reform crack cocaine laws at this link.  The FAQ includes a detailed response to this notable and challenging question: "If a person is in jail and has not been sentenced yet, should he postpone sentencing until a crack reform bill becomes a law?".

Some related recent posts:

April 19, 2010 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2) | TrackBack

An intriguing week on tap for SCOTUS and sentencing fans

The Supreme Court is back from its latest break today, and this SCOTUSblog post details the Justices' basic agenda for hearing arguments.  Of the four arguments on tap for this week, at least two should be of special interest for criminal justice fans:

City of Ontario v. Quon (08-1332) — right of privacy for public employee’s text messages by government-issued pagers

Dolan v. United States (09-367) — federal judges’ power to order restitution for crime victims

Because Dolan involves a technical timing issue, I am not expecting a big ruling in a case that obviously deals directly with sentencing matters.  In contrast, though Quon involves at Fourth Amendment issue, I am expecting the Supreme Court's first foray into the digital world to have inevitable echo effects into a lot of cybercrime and punishment matters.

In addition, as noted in this post late last week, SCOTUS has announced that it will be handing down opinions on both Tuesday and Wednesday, and I am hoping one (or more) of the big sentencing cases still pending could be among the cases decided this week.

April 19, 2010 in Criminal Sentences Alternatives, Who Sentences | Permalink | Comments (1) | TrackBack

Serious talk of a broad drug dealer registry in Massachusetts

This interesting local article, which is headlined "Registry for drug dealers debated," suggests there is some serious support for a broad registry for certain drug offenders in Massachusetts.  Here are the details:

Legislation proposing to create a registry for convicted drug dealers is meeting with positive reviews across the state, according to state Rep. Demetrius Atsalis, who introduced the proposal last year.

Some law enforcement authorities say the proposal, modeled after the state's sex offender registry, could help police identify and track convicted drug dealers, who often bring drug-related violence into a community.  And some education professionals say it could better ensure safety through the school community.

"It would definitely be good to know that you're not establishing a bus stop directly outside the home of a narcotics distributor," said Arthur Dulong, assistant director of the state Secondary Schools Administrators Association, which reviewed the proposal at a recent meeting. "There could definitely be some benefits," echoed Cape and Islands District Attorney Michael O'Keefe, who is considering the matter. "It's worth looking into."

The proposal, which would not affect convicted drug users, is set to go to the House Judiciary Committee, though it's unlikely to go to a vote during the current legislative session, said Atsalis, who plans to reintroduce the matter next year.  But some legislators and human rights advocates contend such registries infringe on convicts' personal freedoms, and the proposal should be quickly dismissed.

Drug registries — Minnesota and Tennessee, among other states, have launched methamphetamine databases — can stigmatize reformed dealers, making it more difficult for them to find work or housing as they seek to rehabilitate, according to officials from the Massachusetts branch of the American Civil Liberties Union....

Atsalis has amended his proposal — designed in a three-tiered system, like the sex offender registry — to include limits on how long offenders will be registered, so long as they don't re-offend.... A cross the state, there were 6,086 arrests for the sale or manufacturing of drugs in 2008 — the most recent figures available, according to Federal Bureau of Investigation records.

The time limits included under Atsalis' proposal fail to address the broader question of the slippery slope, according to [Christopher] Ott, of the ACLU.  If it's implemented, a narcotics registry could lead eventually to a property crime or motor-vehicle crime registries, Ott wrote to the Times. "Do we want to create retroactive registries for anyone ever convicted of shoplifting ... or people who get a lot of speeding tickets?" he wrote. "It's wrong in principle."...

"The public has a right to know who are the convicted drug dealers," state Rep. Jeffrey Perry, R-Sandwich, said in reference to Atsalis' proposal. "But I would take it a step further.  The public has a right to know who all serious criminals are. ... If you had a neighbor who's been convicted four times of assault and battery ... wouldn't you want to know about that?"

April 19, 2010 in Criminal Sentences Alternatives, Drug Offense Sentencing, Who Sentences | Permalink | Comments (3) | TrackBack

The notable contrast in Arizona and Texas prison population trends

Yesterday's Arizona Republic had this long and effective article on prison populations, which was headlined "Ariz. aims to cut prison costs; in Texas, a new approach."  Here is how it gets going:

While the U.S. prison population is declining for the first time in nearly 40 years, Arizona is headed in the opposite direction.

Unlike in some other states, mandatory-sentencing laws keep Arizona inmates in prison for nearly all of their sentenced time.  And state lawmakers say rewriting sentencing guidelines to grant shorter prison terms is politically unlikely.

Amid a historic budget shortfall, some lawmakers are intent on finding ways to reduce the $880 million bill taxpayers foot each year for locking up convicts, nearly 10 percent of the state's $8.9 billion budget.  A look at other states with similar challenges shows some ways prison populations — and costs — can be cut.

With changes made over the past five years, Texas has reduced its prison population and halted plans for a huge prison expansion.  New approaches to incarceration have saved money without taking the teeth out of the criminal-justice system, says a Republican Texas lawmaker who had a hand in the changes.

April 19, 2010 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

"Suicide watch stepped up for Death Row inmate"

The title of this post come from the headline of this story in this morning's Columbus Dispatch.  Here are the details as I am contemplate whether I should be concerned that perhaps more of my tax dollars are now being spent by Ohio officials to ensure a condemned inmate does not kill himself before the state gets to kill him tomorrow:

The next inmate to be executed in Ohio is under heightened security as the state tries to avoid another suicide attempt on Death Row. In response, a civil-liberties group suggested the new policy goes too far.

Serial rapist Darryl Durr, who is scheduled to die Tuesday by lethal injection for strangling a 16-year-old girl a suburb of Cleveland in 1988, is under a 72-hour watch at a state prison in Youngstown.

The watch has been standard procedure. But now his cell includes a Plexiglas-like door so guards can keep him under better surveillance, prisons spokeswoman Julie Walburn said. Also, his bed lacks springs, which he could use to harm himself, and he can't have physical contact with visitors.

Mental-health staff members will evaluate whether Durr, 46, can have certain personal items, including shoestrings, or leave his cell for recreation, Walburn said.

The moves follow the March 7 suicide attempt of Lawrence Reynolds, an inmate who overdosed on an antidepressant hours before he was to be sent from Youngstown to the Southern Ohio Correction Facility in Lucasville, site of the state's death chamber.

April 19, 2010 in Death Penalty Reforms, Prisons and prisoners | Permalink | Comments (3) | TrackBack