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May 15, 2010

Shouldn't we try to make it is easy for sex offenders to know of legal restrictions?

The question in the title of this post is prompted by this interesting Washington Post piece, which is headlined "Sex offenders, advocates push for Va. law notice." Here are excerpts:

When Robert Beckwith was preparing to leave federal prison after 11 years, he knew his label as sex offender would mean there were certain places he couldn't visit or live. He had no idea it would be so difficult to find that information.

In April, the 53-year-old Beckwith left prison in Massachusetts and headed to a northern Virginia homeless shelter. Beckwith wrote to the Virginia attorney general's office asking for help and was directed to Virginia State Police, which administers the sex offender registry. He wrote to the state police twice with no answer.

"I feel like I'm being set up to fail," said Beckwith, who was convicted of having sex with an underage girl on a military base.

Unlike some states, Virginia doesn't provide its 16,500 registered sex offenders with a list of restrictions on where they can live, work and play. Instead, registered offenders must search state websites to determine how to comply with laws meant to keep them away from schools, parks and other places where children could congregate.

Officials say it would be too costly to provide copies of the laws to all offenders and that the websites are sufficient.

Wayne Bowers, director of the Sex Abuse Treatment Alliance in Oklahoma, said by not informing sex offenders of the laws, states are opening the door for individuals to fail -- and reoffend. "If these people fail, that means there is going to be another victim," he said.

Notification laws vary across the nation. Some states, like New Mexico, spell out the restrictions on a website, while others, such as North Carolina and Indiana, require offenders to read over a list of the laws and sign that they understand it while in the presence of a law enforcement officer....

Just like with other laws, sex offenders can't claim ignorance. If they are caught too close to a school, park or, in several states, a church, they could be charged with a felony and sent back to prison. Failing to register on time also is a felony.

And while lawmakers are quick to add to the list of restrictions for sex offenders, few are willing to pass laws that favor a group so generally despised. A bill to require Virginia State Police to give offenders a list of restrictions has failed the past two years. Meanwhile, about a dozen new restrictions or enhanced penalties were enacted.

"It's not a luxury to know these rules, it's critical to success and for public safety," Reform Sex Offender Laws of Virginia founder Mary Devoy wrote to legislators after they adjourned in March without bringing the bill up for a vote in committee....

Listing the laws on the state police website isn't practical since not everyone on the registry has access to a computer, Devoy said. Also, in some localities, such as Virginia Beach, registered sex offenders are not allowed to have Internet access. It would be better if the information was included in the certified packet of information each offender receives in the mail each year, she said.

The Department of Corrections informs and trains probation and parole officers about changes to the law, but it does not provide offenders with any lists, said department spokesman Larry Traylor.

Beckwith said he doesn't understand why the state isn't more willing to help those who are wanting to obey the law. "There are some who want a second chance at a decent life," he said. "Giving them the information could be the key."

There is a particular Kafkaesque quality to the prospect that some sex offenders may need to get on the internet in order to learn that there is a law prohibiting them from getting on the internet.  Even more importantly, if a jurisdiction decides that it is important for sex offenders avoid certain areas or activities, it would seem also to be important for the jurisdiction to make sure sex offenders know these realities.  If a jurisdiction cannot afford to provide effective information to impacted persons about a new law, perhaps it cannot truly afford to have the new law in the fist instance.

May 15, 2010 in Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (14) | TrackBack

Potent(?) pace of executions in Ohio starting to produce pushback

This new article from the Columbus Dispatch, which is headlined "Death Row cases should be reviewed, justice says," highlights that some prominent folks are starting to take note and lament Ohio's recent record on administering the death penalty.  Here are excerpts from the article:

The "father of Ohio's death penalty," Supreme Court Justice Paul E. Pfeifer, says all current Death Row cases should be reviewed to see which ones warrant execution -- and which should be commuted to life in prison without the possibility of parole.

"There are probably few people in Ohio that are proud of the fact we are executing people at the same pace as Texas," Pfeifer told The Dispatch.  His comments came the day after the lethal injection of Michael Beuke, the fifth Ohioan executed this year and the 38th since 1999.

"When the next governor is sworn in," Pfeifer said, "I think the state would be well served if a blue-ribbon panel was appointed to look at all those cases.  The only reason we have a death penalty is society demands retribution. ... I never made the argument that it was a deterrent. You can't prove it with numbers."

Pfeifer, a Supreme Court justice for the past 17 years, was one of three Republican state senators who resurrected Ohio's death-penalty law in 1981 after the old law had been declared unconstitutional by the U.S. Supreme Court.  At the time, Pfeifer included a life without parole option in the law, but the Ohio House refused to go along.

Pfeifer, a Republican who is unopposed for re-election to a fourth term on the court this fall, emphasized that he is not suggesting that convicted killers are innocent, or that any should be set free. "The point is whether or not death is the appropriate penalty," he said.

Pfeifer said the majority of the old cases, had they been tried today under current law and societal standards, would not have resulted in capital punishment.  "The number of people we have accumulated on Death Row has been rather staggering," he said. "It's improbable that all of those folks are going to be executed."

With a high number of executions and relatively few new death sentences being handed out (one last year), Death Row has shrunk nearly 21 percent in Ohio, from a high of 203 prisoners in January 2002 to the current 161.  Six more executions are scheduled this year, and two have been set for 2011.

Ohio Public Defender Tim Young called Pfeifer's suggestion "a tremendous idea, one we would greatly encourage." "If people take the time to look at who's on Death Row, they will see types of cases that are so different because they are based on different sets of circumstances," Young said. "A person committing a crime in one part of the state might get the death penalty, and another person who committed a similar crime in another part of the state does not."...

"We as a society always have an evolving standard of justice and fairness," Young said. "What we thought of as justice in 1776 when we cut people's ears off is not the same today.  A decade ago, you could execute the mentally retarded."

Ohio Attorney General Richard Cordray could not be reached for comment.

This article highlights the tendency of some folks to favor the death penalty more in theory than in reality.  Only a grand total of 38 persons have been executed in Ohio in the 30 years since then-legislator Pfeifer sought to bring the death penalty to the state.  If Pfeifer and others in Ohio still support the death penalty at all, I have a hard time understanding why the fact that the state is finally getting around to actually applying this penalty should bother him so much.  

These comments by Justice Pfeifer lead me to wonder if, in fact, he has become a death penalty abolitionist on the Ohio Supreme Court like Justices Blackmun and Stevens did on the US Supreme Court.  If so, I wish he would just be candid like Justices Blackmun and Stevens about his new perspective rather than to make this strange and silly call for a "blue-ribbon panel [to be] appointed to look at all those cases" which have left the state right now with 161 Ohio murderers sitting on death row.

I call the Justice Pfeifer's call for a "blue-ribbon" review panel strange and silly because such a panel arguably already exists in the form of Ohio's Parole Board, which reviews every death row defendant's request for clemency and makes recommendations to the Governor about which cases might merit commuting murderer's sentence from death to something else.  To its credit, the Ohio Parole Board conducts open hearings and issues thoughtful recommendations in every capital case in which a death row defendant seeks a reduced sentence.  I am not sure what Justice Pfeifer expects a "blue-ribbon" panel to do that would be different that what the Ohio Parole Board already does (though I do suspect it will cost Ohio taxpayers some extra dollars that we can hardly afford with our state's current budget woes).

Some recent related posts:

May 15, 2010 in Death Penalty Reforms | Permalink | Comments (22) | TrackBack

"Heller, McDonald and Murder: Testing the More Guns, More Murder Thesis"

The title of this post is the title of this piece on SSRN that is especially timely while we all await the Supreme Court's next ruling in the Second Amendment.  Here is the abstract:

We examine several aspects of the more guns, more murder hypothesis.  We find that ordinary people typically do not kill in a moment of rage, so that preventing them from owning guns will not save lives.  Societies without guns are not typically peaceful and safe.  Historically, more guns are associated with less murder.  Modern Europe nations with very high gun ownership rates have much lower murder rates than low gun ownership nations.  In the United States: the colonial period of universal gun ownership saw few murders and few of those were gun murders. More guns do not mean more murder.

May 15, 2010 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (2) | TrackBack

May 14, 2010

"New Victim Accuses Roman Polanski of 'Sexual Abuse'"

The title of this post is the headline of this remarkable new ABC News story, which adds another remarkable layer to the seemingly never-ending Roman Polanski sentencing saga.  Here is how the piece starts:

A British actress who starred in a Roman Polanski film charged today that the director "sexually abused" her when she was 16 years old in his Paris apartment.

The incident allegedly happened in 1982, four years after Polanski fled the United States to because he feared a California judge was going to send him to prison on charges he raped a 13-year-old girl.

"Mr. Polanski sexually abused me in the worst possible way when I was just 16, four years after he fled the U.S. to avoid sentencing for his crime," Charlotte Lewis, now 44, told reporters.  Four years later in 1986, Lewis starred in Polanski's comedy "Pirates."

Lewis did not provide any details of the alleged encounter, including whether she was given drugs or raped.  She did say there were "similarities" to the 1977 case, in which Polanski gave 13-year-old Samantha Geimer champagne and Quaaludes before raping and sodomizing her. "Mr. Polanski knew I was just 16 when he met me and forced himself on me ... in his apartment in Paris," she said.

Lewis did not report the incident to French authorities at the time, and said she came forward now only to provide additional information that a judge might consider if Polanski is extradited back to the United States.

"He victimized another child while a fugitive from justice....  The sentencing judge needs this information to make an informed decision," said Lewis' American lawyer Gloria Allred.  "The judge may consider predatory claims ... [which] could certainly have an impact on Polanski's sentencing."  Allred said Lewis had no plans at this time to sue Polanski and only came forward now that it appeared Polanski may soon return to the U.S. for sentencing

Though I have no interest at all in taking sides in the Polanski saga or in defending any aspect of Polanski's apparent affinity for under-age girls, I cannot help but find the timing of this breaking news to be notable.  Efforts to bring Polanski back for sentencing in California have been making headlines now for nearly a year, and yet only now are we learning about this important and potentially very significant new accusation of similar sexual abuse.  And, speaking of notable timing, I also cannot help but find interesting that Lewis starred in a Polanski movie four years after Polanski, according to Lewis, "sexually abused [her] in the worst possible way."

Let me be clear: I am not noting this timing to directly question Lewis's claims or to suggest in any way that women subject to sexual abuse, especially at the hands of a powerful man, would not have lots of reasons to avoid or delay reporting this abuse (and to continue associating with the abuser).  But it seems that this new allegation of long-ago sexual abuse would have been of great importance in the on-going legal dispute concerning Polanski's extradition, which started full-tilt last September and has already involved significant court rulings.  The goal of my comments above are to ponder (1) just why this significant accusation is coming out now, and also (2) whether the timing of this new accusation will be part of the discourse about its significance for Polanski's pending extradition and future sentencing.

May 14, 2010 in Celebrity sentencings, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack

Why the Second Circuit's Dorvee reasonableness ruling could (and should) be so significant

The New York Law Journal has this new piece, headlined "2nd Circuit Faults Pornography Enhancements, Vacates Sentence," which reports on the significant Dorvee reasonableness ruling from earlier this week (basics here).  Because it only covers the basis, this NLYJ piece does not give a full sense of why the Dorvee ruling could be so significant.  I will try to provide a brief account in this post.

In the five years since Booker, circuit court have through their reasonableness rulings essentially turned the guideline range into what might be called a sentencing "safe harbor."  Though circuits have said only that within-guideline sentences will be presumed reasonable (and a few circuits have even resisted this formal presumption), for all practical purposes district judges know that decisions to impose within-guideline sentences will never be found substantively unreasonable.  Put differently, circuits have functionally treated a sentence within a properly-calculated guideline range as per se reasonable.  (There have been a few Ninth Circuit cases reversing within-guidelines sentences, but on quirky facts, and all other circuits have affirmed all within-guidelines sentences against many sensible substantive attacks.)

Now along comes Dorvee, which expressly states that the child porn guideline is beset with "irrationality" and that  "unless applied with great care, [this guideline] can lead to unreasonable sentences that are inconsistent with what § 3553 requires."  Slip op. at 16, 19.  The Dorvee opinion further explains that by "concentrating all offenders at or near the statutory maximum, [this guideline] eviscerates the fundamental statutory requirement in § 3553(a) that district courts consider 'the nature and circumstances of the offense and the history and characteristics of the defendant' and violates the principle, reinforced in Gall, that courts must guard against unwarranted similarities among sentences for defendants who have been found guilty of dissimilar conduct."  Slip op. at 19.  And the Dorvee opinion finishes up by reiterating that the child porn guideline is an "eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results."  Slip op. at 21 (emphasis added).

All this anti-guideline language in Dorvee, as well as the relatively aggravated facts involved in the Dorvee case (because the defendant seemed eager to commit a contact child sex offense), leads me to assert that now in the Second Circuit, district judges ought to view the child porn guideline as an inherently "unsafe harbor."  The Dorvee ruling, in my view, suggests that a district court must articulate a very strong and special reason to sentence within the child porn guideline in a downloading case for such a sentence to be upheld as substantively reasonable.  This reality makes Dorvee a huge deal for hundreds of child porn sentencing cases, especially if district courts outside the Second Circuit are influenced by the opinion.

More significantly, both the language and logic of the Dorvee need not and probably should not stop with just the child porn guideline.  Though many parts of Dorvee focus on unique aspects of the child porn guideline, there are other guidelines that tend to concentrate many offenders at or near the statutory maximum.  In particular, in all cases with sizeable loss amounts, the fraud guidelines have a tendency to place many defendants in the life sentence range (and beyond).  I suspect effective white-collar counsel in the Second Circuit (and perhaps elsewhere) will be quick to cite Dorvee to support arguments that the fraud guidelines, like the child porn guidelines "can easily generate unreasonable results."

May 14, 2010 in Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (2) | TrackBack

Might a Justice Kagan speed or slow Justice Ginsburg's decision to retire?

I am still not seeing much of unique interest for sentencing fans in this week's Kagan coverage (though I have not been able to keep up with even a portion of all the Kagan links at How Appealing).  In any event, while thinking about the future of SCOTUS, the question in the title of this post came to mind, and I thought it would make a good topic for a Friday discussion. 

This New York Times piece from a few days ago noted that during her confirmation hearings in 1993, "Ruth Bader Ginsburg predicted that she would eventually be one of 'three, four, perhaps even more women on the high court bench.'”  There seems little doubt that Justice Ginsburg will be pleased that he prediction will finally become true if and when SG Kagan gets confirmed.  But I could see how this reality might make Justice Ginsburg both more comfortable stepping down and also less eager to retire any time soon. 

Justice Ginsburg may well want to step down during an administration with a President who has shown a deep commitment to putting more women on the Supreme Court; she also may well want to spend a number of Terms enjoying the experience of having more than just one other woman on the Court.  Of course, Justice Ginsburg's health and other considerations (like the results of this Fall's election) will surely also play a big role in her thinking.  Still, I cannot help but think that one of the many considerations that has prompted President Obama to nominate two women for open SCOTUS seats has been a sense that these choices might have at least an indirect impact on whether and when he gets to make some more SCOTUS appointments.

On this front, here is an interesting trivia twist to the prospect of President Obama getting another SCOTUS appointment opportunity:  the last President to appoint three Justices was Ronald Reagan and the last Democratic President to appoint more than two Justices was Harry S Truman.

Some recent related posts on the Kagan nomination:

May 14, 2010 in Who Sentences | Permalink | Comments (1) | TrackBack

Texas jury returns life sentence based on unconvicted and uncharged conduct

A helpful reader forwarded to me this fascinating local sentencing story out of Texas.  The report is headlined "Prieto gets life in prison for beating," and here are the details:

Enrique Prieto could have walked out the courthouse door a free man, but instead he is going to prison for life. A Lubbock County jury sentenced Prieto, 41, to life in prison for robbing and beating an elderly man in September 2008.

Prieto on Monday pleaded guilty to the aggravated robbery of then-71-year-old Danny Moore, who he beat with a saw and pipe before taking his wallet and truck. "With a life sentence and maximum fine, justice was served to this defendant for what he did in this case," prosecutor Jaret Greaser said....

Prieto was eligible for probation because he had never been convicted of a felony, but he did have multiple felony charges pending against him.

Prosecutors spent three days essentially trying to prove those charges to jurors in hopes they would levy the maximum penalty for the aggravated robbery. Jurors heard evidence that Prieto burglarized another home while out on bond.

Perhaps the nail in Prieto's coffin was the testimony from one of his daughters, who said he raped her from the time she was 6 or 7 years old until she was 13 years old.

Prieto's wife testified the girl's story was improbable because she would have known if Prieto was abusing their daughter, but a sexual assault nurse said the girl had penetrating injuries consistent with a history of long-term abuse.

Prosecutors told jurors in closing arguments to focus on all the charges against Prieto. "This case is so much more than just that aggravated robbery," assistant district attorney Mandi Say said....

The jury deliberated for a little more than an hour before returning the life sentence.

This little story has so many interesting elements, I could imagine structuring an entire seminar focused on the question about whether this case vindicates or eviscerates the constitutional principles developed in Apprendi and Blakely

If we think the most important constitutional principles of Apprendi and Blakely concern ensuring that a jury of peers, rather than just an "elite" judge, be involved in determining sentencing outcomes, then one might conclude that these Sixth Amendment interests were vindicated in this case.  But I tend to read Blakely and especially Apprendi as expressing concerns about sentences being increased based on facts not found by traditional due process standards. 

I suspect that at least some members of the Apprendi and Blakely majorities would be troubled by how Prieto got a life sentence.  Moreover, I suspect even some members of the Apprendi and Blakely dissents might be a bit worried as to whether Fifth Amendment due process interests were fully served here (especially if Prieto did not get advance notice that his sentencing on the aggravated robbery conviction was going to be a essentially a trial and sentencing on his daughter's allegations of rape).  And, of course, three members (and soon to be four) members of the current Supreme Court were not Justices at the time of Apprendi and Blakely and thus we can only speculate about what they may think about how Prieto got a life sentence here.

May 14, 2010 in Blakely Commentary and News, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (36) | TrackBack

Annual national USSC seminar only a month away and not to be missed by sentencing fans

As detailed on this webpage, the US Sentencing Commission's "Annual National Seminar on the Federal Sentencing Guidelines" is now just a month away.  This event, which runs June 16-18 in New Orleans and at which I have the honor of speaking, is always one of my favorite federal sentencing conferences.  As detailed in this full brochure/agenda, all the biggest issues in modern federal sentencing are to be discussed by many of the biggest players who help shape and assess the modern federal sentencing system.

Though I urge federal sentencing fans to attend this conference every year, the 2010 should be especially exciting and important given all the significant recent federal sentencing developments and upcoming transitions.  Most obviously, the new proposed sentencing guidelines should be widely discussed and debated.  But there is also the pending upcoming changes in the personnel of both SCOTUS and the USSC to consider.  And, of course, there is a real good chance that the Supreme Court will have handed down opinions in at least some of its important pending sentencing cases by the time of this conference this month. 

May 14, 2010 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (2) | TrackBack

May 13, 2010

AP reviews evidence of 40 years of failure of the "war on drugs."

The AP has this long and effective new piece headlined, "US drug war has met none of its goals."  Here are excerpts:

After 40 years, the United States' war on drugs has cost $1 trillion and hundreds of thousands of lives, and for what? Drug use is rampant and violence even more brutal and widespread.

Even U.S. drug czar Gil Kerlikowske concedes the strategy hasn't worked. "In the grand scheme, it has not been successful," Kerlikowske told The Associated Press. "Forty years later, the concern about drugs and drug problems is, if anything, magnified, intensified."

This week President Obama promised to "reduce drug use and the great damage it causes" with a new national policy that he said treats drug use more as a public health issue and focuses on prevention and treatment.

Nevertheless, his administration has increased spending on interdiction and law enforcement to record levels both in dollars and in percentage terms; this year, they account for $10 billion of his $15.5 billion drug-control budget. Kerlikowske, who coordinates all federal anti-drug policies, says it will take time for the spending to match the rhetoric. "Nothing happens overnight," he said. "We've never worked the drug problem holistically. We'll arrest the drug dealer, but we leave the addiction."

His predecessor, John P. Walters, takes issue with that. Walters insists society would be far worse today if there had been no War on Drugs.  Drug abuse peaked nationally in 1979 and, despite fluctuations, remains below those levels, he says.... 

Last year, half of all federal prisoners in the U.S. were serving sentences for drug offenses. At the same time, drug abuse is costing the nation in other ways. The Justice Department estimates the consequences of drug abuse -- "an overburdened justice system, a strained health care system, lost productivity, and environmental destruction" -- cost the United States $215 billion a year.

Harvard University economist Jeffrey Miron says the only sure thing taxpayers get for more spending on police and soldiers is more homicides. "Current policy is not having an effect of reducing drug use," Miron said, "but it's costing the public a fortune."...

The $320 billion annual global drug industry now accounts for 1 percent of all commerce on the planet. A full 10 percent of Mexico's economy is built on drug proceeds -- $25 billion smuggled in from the United States every year, of which 25 cents of each $100 smuggled is seized at the border....

A decade ago, no politician who wanted to keep his job would breathe a word about legalization, but a consensus is growing across the country that at least marijuana will someday be regulated and sold like tobacco and alcohol. California voters decide in November whether to legalize marijuana, and South Dakota will vote this fall on whether to allow medical uses of marijuana, already permitted in California and 13 other states....

So why persist with costly programs that don't work? Department of Homeland Security Secretary Janet Napolitano, sitting down with the AP at the U.S. Embassy in Mexico City, paused for a moment at the question. "Look," she says, starting slowly. "This is something that is worth fighting for because drug addiction is about fighting for somebody's life, a young child's life, a teenager's life, their ability to be a successful and productive adult.

"If you think about it in those terms, that they are fighting for lives -- and in Mexico they are literally fighting for lives as well from the violence standpoint -- you realize the stakes are too high to let go."

May 13, 2010 in Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (5) | TrackBack

Big changes to the sex offender registration provisions of the Adam Walsh Act proposed

A helpful reader forwarded to me an e-mail that summarizes big news concerning federal sex offender registration laws coming from DOJ today. Here is the text of that e-mail:

You will be interested to know that this morning the U.S. Department of Justice issued proposed supplemental guidelines modifying several requirements for compliance with SORNA. Many address concerns raised by the states and other stakeholders. They do the following:

  • Gives jurisdictions discretion to exempt juvenile offenders from public website posting
  • Provides information concerning the review process for determining that jurisdictions have substantially implemented
  • Gives jurisdictions discretion to modify the retroactive registration requirement to apply to new felony convictions only
  • Provides mechanisms for newly recognized tribes to elect whether to become SORNA registration jurisdictions and to implement SORNA
  • Expands required registration information to include the forms signed by sex offenders acknowledging that they were advised of their registration obligations
  • Requires jurisdictions to exempt sex offenders’ e-mail addresses and other Internet identifiers from public website posting
  • Requires jurisdictions to have sex offenders report international travel 21 days in advance
  • Clarifies mechanism for interjurisdictional information sharing and tracking.

They are posted in today’s Federal Register. Interested parties have 60 days to submit comments. Find the document here.

May 13, 2010 in Sex Offender Sentencing, Who Sentences | Permalink | Comments (19) | TrackBack

"War and Peace in the Jury Room: How Capital Juries Reach Unanimity"

The title of this post is the title of this new article on SSRN from Scott Sundby. Here is the abstract:

Using data from the Capital Jury Project, this article takes a close look inside the jury room at the process by which capital juries reach a unanimous verdict at the penalty phase.  The process proves to be fascinating one.  The article first examines the relationship between first ballot voting patterns and the ultimate sentence, and then explores the dynamics of group interaction in achieving unanimity.  In particular, by using the jurors’ own narratives, the piece delves into the psychological process and arguments through which the majority jurors persuade the holdouts to change their votes.  

This process is especially intriguing because individual juries do not, of course, have any training in how to deliberate and reach unanimity, and yet they are strikingly similar from case-to-case in how they convert holdouts to the majority position (the striking differences are between the dynamics of juries that reach a verdict of death and those that return a sentence of life without parole).  Using the closing argument in the death penalty case of Susan Smith (the mother who had done the unthinkable, killing her two children by driving them into a lake and then trying to cast blame on a mysterious black man), the article concludes by examining how a closing argument might address many of the pressures that affect holdouts.

May 13, 2010 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0) | TrackBack

Ohio completes yet another uneventful one-drug lethal injection execution

As detailed in this local story, Ohio was able to complete with out obvious incident yet another execution this morning using its one-drug protocol:

After playing the keyboard and crying in his cell, Michael Beuke -- the Hamilton County man known as the "homicidal hitchhiker" -- was executed today for a murder he committed nearly 27 years ago.

Beuke, 48, succumbed to the lethal injection drug at 10:53 a.m. at the Southern Ohio Correctional Facility near Lucasville. Before the chemicals flowed into his bloodstream, he spent 17 minutes reciting the Rosary. He also recited an early Christian creed and the Lord's Prayer as tears rolled down his left cheek.

Witnesses were shaking their heads before his repetitive statement was over, clearly impatient it went on so long. He also apologized to the widows of his victims.

Once the drugs started flowing, Beuke became completely still within three minutes, and was pronounced dead seven or eight minutes later. Among those who witnessed Beuke's execution were Susan Craig, the widow of murder victim Robert Craig, 27, and Dawn and Paul Wahoff, the children of Greg Wahoff, 28, another of Beuke's victims. Greg Wahoff was paralyzed and wheelchair-bound after he was shot in the face and back by Beuke, to whom he had given a ride.

Beuke's attorney, Dale Baich, a federal public defender from Arizona, filed numerous unsuccessful appeals in the past week. Baich was on the case because he originally represented Beuke when Baich was with the Ohio public defender's office....

Prison officials said Beuke was very emotional when he arrived at the prison yesterday morning and continued crying as he talked to his attorneys throughout the day. He did not ask for a special last meal, instead opting for the standard dinner: chicken a la king, mashed potatoes, lima beans and peaches. Prison officials allowed him to have the keyboard for his final day on Earth....

Prison officials were concerned in the past week that they might not be able to procure enough thiopental sodium, the single drug used in Ohio executions, because of a worldwide shortage. However, the state was able to find enough of the drug to kill Beuke.

He was the fifth Ohioan executed in five months this year and the 38th since capital punishment resumed in 1999. With an execution scheduled each month through November, the state is likely this year to eclipse the seven men executed in 2004, the modern record.

This is the first I have heard about a worldwide shortage in thiopental sodium, the single drug used in Ohio executions.  Perhaps for this reason, the state is strangely fortunate that the Ohio Supreme Court has been so far unwilling to have executions scheduled for mone than one each month.

May 13, 2010 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (26) | TrackBack

A gendered execessive force case of note as we reflect on gendered judging

Perhaps because I am married to a female Princetonian, I am especially focused on how gender issues (as well as elitism issues) are starting to play out in this debate over the nomination of SG Elena Kagan to the Supreme Court. (For some basic back-story, consider this New York Times piece from a few days ago, which is headlined "Reshaping Court’s Culture, a Woman at a Time.")  In other words, I am primed to be thinking about gendered judging: whether and just how women may view legal disputes differently from men.

With this background, I found especially notable some of the gendered realities surrounding this split ruling by the Sixth Circuit today on an Eighth Amendment excessive force 1983 case.  For starters, there is a gendered dynamic to the underlying facts: the plaintiff is a woman, Trudy Griffin, arrested for disorderly conduct suing a male corrections officer, Darrell Hardrick, who sought to control her through a "leg-sweep maneuver" which led to a tumble during which a female corrections officer fell on the Griffin and broke her tibia. 

Right out of the box, I found intriguing that the female plaintiff apparently sued only the male corrections officer.  But that choice may have been greatly influenced by the fact allegation made by plaintiff Griffin that the officer Hardrick told her that "she 'was his bitch.'"

Significantly, the entire incident was captured on video, but a video with no sound (and thus there is no recording to establish or refute whether Hardrick said to Griffin that she "was his bitch").  Relying in part on the video, the male corrections officer sought and was granted summary judgment by the district court which held that "no reasonable jury could find that Hardrick had intended the unnecessary and wanton infliction of pain when he tripped Griffin."  That ruling now is before the Sixth Circuit, with a panel of two men and one woman considering whether this grant of summary judgment to the male corrections officer was appropriate.

With this set-up, I suspect the astute reader can already guess the nature of the split ruling from the Sixth Circuit that prompted this post.  The two male Sixth Circuit judges on the panel both voted to affirm the grant of summary judgment on behalf of corrections officer Hardrick.  Dissenting, the female Sixth Circuit judge on the panel asserts that a "jury viewing the events portrayed in the video in light of the statements Griffin attributes to Hardrick could reasonably conclude that Hardrick could not plausibly have thought that the use of the takedown maneuver, although executed properly, was necessary, and that, in fact, he performed it solely to inflict pain, even if not of the degree that ultimately occurred."

I find it useful and worthwhile not only to notice these gendered realities, but also to speculate whether a Justice Kagan might see this case differently than a Justice Stevens.  (And, if we want to get elitism issues into this conversation, we might also wonder whether Elena Kagan or anyone else on President Obama's SCOTUS short-list has ever been arrested for disorderly conduct or ever worked as a corrections officer.)  

For a last little bit of gender-awareness, I encourage readers to note that, in telling this tale, I have intentionally not reported the gender of the district judge who granted summary judgment and turned this matter into appeal fodder in this posture.  Any reader who is interested to know the gender of the district judge who granted summary judgment in this case is likely someone who thinks that gender may be, at least descriptively, of some pertinence to the craft of judging (dare I say umpiring) in at least some contexts.

May 13, 2010 in Prisons and prisoners, Race, Class, and Gender, Who Sentences | Permalink | Comments (4) | TrackBack

The latest buzz on who might replace Kagan as Solicitor General

Tony Mauro has this notable new piece in the National Law Journal headlined "Jockeying Begins for Solicitor General Job." Here are excerpts:

Just days after President Barack Obama announced he will nominate Elena Kagan to the Supreme Court, speculation is already swirling about who will replace her as solicitor general, with names including Washington state Gov. Christine Gregoire reportedly on a White House short list for the post.

Also being mentioned as possible contenders are current principal deputy solicitor general Neal Katyal, former Jenner & Block partner Donald Verrilli, current Kellogg, Huber, Hansen, Todd, Evans & Figel partner David Frederick, former New York solicitor general Preeta Bansal, former Morrison & Foerster partner Beth Brinkmann and partner Patricia Millett of Akin Gump Strauss Hauer & Feld.

The National Journal reported today that Gregoire, a former state attorney general who has argued before the high court, is also under consideration. By tradition, the principal deputy often succeeds a departing SG. But this time around there appears to be a lot of jockeying for the post.

"There is no shortage of people who want that job," said Lisa Blatt, head of Arnold & Porter's appellate and Supreme Court practice, and a 13-year veteran of the SG's office. She overlapped with Kagan briefly. "For people who love the Supreme Court, there's nothing more thrilling, nothing more of an honor."...

Most of those being talked about have already had experience in the SG's office and in private practice as well. Verrilli, who left Jenner to become associate deputy AG in the Obama administration and is now a senior counsel in the White House, did not work in the SG's office. But he has lengthy experience as a high court advocate for both corporate and pro bono clients as we noted in this 2007 profile. Frederick left the SG's office in 2001 and recently has developed a specialty representing victorious consumers in pre-emption cases before the Supreme Court, described here. Bansal, formerly a partner at Skadden, Arps, Slate, Meagher & Flom in New York is general counsel of the Office of Management and Budget, and Brinkmann is now a deputy assistant attorney general heading the civil appellate division of the Justice Department. Gregoire served as Washington's attorney general for 12 years before becoming governor in 2004, and argued three cases before the U.S. Supreme Court.

Kagan is expected to continue in her current position until the Senate votes on her conformation, though the White House indicates she will not work on new cases -- effectively making Katyal the acting SG in those instances. It is not clear whether a nomination for solicitor general would be made before Kagan is voted on.

May 13, 2010 in Who Sentences | Permalink | Comments (5) | TrackBack

May 12, 2010

Another notable lethal injection opinion from the Sixth Circuit on Ohio's new one-drug protocol

As regular readers know well, Ohio's recent experience with the administration of capital punishment has become a monthly saga of challenges to Ohio's new execution protocol, followed by appeals, stays denied, and then sometimes notable opinions approving or lamenting Ohio's tinkering with the machinery of death.  As detailed in this new opinion in from a split Sixth Circuit panel, this saga can makes for good blog copy.  

From the majority opinion authored by Chief Judge Batchelder:

While Beuke’s delay may not be as egregious as that of the defendant in Workman, it nonetheless “could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.” Beuke has been taking anti-seizure medication for several years.  Ohio’s revised method of execution that includes Plan B as a back-up was instituted in November 2009. Beuke’s current execution date of May 13, 2010, was also set in November 2009.  Nevertheless, he waited until March 17, 2010, to move the district court to intervene and, waited until only one week prior to his execution date to amend his complaint to bring the particularized challenges to Plan B that he is currently asserting on appeal. This constitutes unnecessary delay, and Beuke has failed to overcome the “strong equitable presumption” against the grant of his stay request.

From the dissenting opinion authored by Judge Martin:

This is another in the long line of cases that have developed in the short period since the State of Ohio drastically altered its lethal injection protocol in November 2009.  Though, as far as I know, Ohio has not yet encountered problems in carrying out executions under its latest protocol, the fact remains that Ohio is blazing a very new trail.  Only time will tell if the changed protocol actually addressed the problems alleged to have surrounded the prior three-drug method of execution....

But, in the Sixth Circuit, there is no time — or at least no time like the present.  We do not permit time for sufficient research to produce the record needed to make an informed decision. Instead, we encourage Ohio to continue its one-a-month execution march.  If the science does not yet exist when an inmate’s appointed time comes, we say “alas, you have not shown a likelihood of suffering, maybe the next guy can.”  And then we say the same thing the next month.  The upshot is that an inmate staring down the barrel of the new protocol will only be able to show a likelihood of unnecessary suffering if someone ahead of him has suffered unnecessarily.  Until the unthinkable happens, we charge ahead unthinking.  As the district court noted, this is the functional equivalent of human experimentation.  We tell Ohio to just keep going until an experiment goes horribly awry, as it did in the case of Romell Broom.  Only then will we halt our rush to a result and remember that our true business is reasoned constitutional consideration.

Some recent related posts:

May 12, 2010 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (3) | TrackBack

"Stemming the Tide of Postconviction Waivers"

The title of this post is the title of a new ABA Criminal Justice column by Alan Ellis and Todd Busset, which I am able to provide for downloading below. Here is how this important and timely column starts and ends:

Over the last several years, waiver of a defendant’s appellate and postconviction rights has become a standard feature of plea agreements in federal cases.  While courts uphold a knowing and intelligent relinquishment of rights, these waivers are not without limits.  This article suggests areas about which defense counsel should be aware in order to afford clients the greatest opportunity for postconviction relief.  In particular, we explore ethical constraints on defense counsel’s ability to advise clients and to shield themselves from ineffective assistance claims, as well as constraints on prosecutors’ ability to demand such waivers or to shield themselves from prosecutorial misconduct claims....

While we recognize that there exists a systemic interest in finality and minimizing meritless claims, the appeal and postconviction waivers that have crept into the federal plea negotiation process require diligent attention.  Justice is not served by impediments to valid claims that would otherwise afford relief.  Defense counsel, in particular, are obliged to voice ethical considerations that can and should prevent the government from foreclosing available avenues and to ensure that every client’s relinquishment of rights is knowing and voluntary.

Download ABA -Plea Waivers

May 12, 2010 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2) | TrackBack

Gender bias attack on the death penalty rejected in Casey Anthony case

I have not been closely following the seemingly-all-too-high-profile criminal case against Casey Anthony in Florida, but this news storyconcerning recent developments in the case seemed blog-worthy.  The CBS News piece is headlined "Casey Anthony Can Face Death Penalty, Judge Rules," and here are excerpts:

The judge in the Casey Anthony murder trial has rejected arguments from her attorneys that the death penalty should be taken off the table.  Chief Judge Belvin Perry made his ruling against Anthony, who is accused of killing her 2-year-old daughter Caylee, at a hearing Tuesday in Orlando, Fla.

Anthony's attorneys argued that the prosecutors had a gender bias in seeking the death penalty and put on an expert witness who testified that a mother who is perceived as "deviant" by a jury faces a difficult time in defending herself against criminal charges.

Anthony's attorneys also argued that "Societal biases against women provide the state with a way of deflecting attention away from the insufficiency of the evidence in Miss Anthony's case," according to the defense motion.  These arguments did not convince Judge Perry, who said that defense attorneys had failed to prove a gender bias in regard to the death penalty in this case.

I am torn between wondering whether Casey Anthony's lawyers merit some praise for giving this intriguing gender-bias argument a shot and wondering why lawyers for men changed with capital offenses do not make a habit of making gender-bias arguments.  In this context, consider this recent Huffington Post commentary, which is titled the "Quirky Gender Bias in the Death Penalty," which (sort of) laments the fact that gender bias against men "riddles the death penalty as much as racial and class bias."

May 12, 2010 in Death Penalty Reforms, Race, Class, and Gender | Permalink | Comments (2) | TrackBack

Split New York high court ruling spotlights key post-Padilla issues

In an interesting split opinion in NY v Gravino, No. 77 (NY May 11, 2010) (available here), the New York Court of Appeals rejected yesterday claims about the import of a defendant failing to know certain significant "collateral" consequences of a conviction when entering a plea.  In so doing, the Gravino ruling spotlights some critical follow-up questions to the Supreme Court's recent Padilla ruling that an attorney's incompetent advice on immigration consequences of a plea could amount to ineffective assistance of counsel under the Sixth Amendment.

Here is how the majority opinion in Gravino gets started and a key final passage from the court's holding:

We hold that because they are collateral rather than direct consequences of a guilty plea, SORA registration and the terms and conditions of probation are not subjects that a trial court must address at the plea hearing. Put another way, a trial court's neglect to mention SORA or identify potential stipulations of probation during the plea colloquy does not undermine the knowing, voluntary and intelligent nature of a defendant's guilty plea....

We decide today that SORA registration and the terms and conditions of probation are not direct consequences of a plea -- in other words, that the judge's failure to mention them does not, by itself, demonstrate that a plea was not knowing, voluntary and intelligent. It does not necessarily follow, though, that non-disclosure is always irrelevant to the question of whether a court should exercise its discretion to grant a motion to withdraw a plea. There may be cases in which a defendant can show that he pleaded guilty in ignorance of a consequence that, although collateral for purposes of due process, was of such great importance to him that he would have made a different decision had that consequence been disclosed.

Here is how the dissenting opinion in Gravino gets started and some key passages from its discussion:

Because I believe that SORA certification and subsequent registration and the restriction of contact with one's children as a condition of probation are direct consequences of a guilty plea of which a defendant must be informed to make that plea knowing, voluntary and intelligent, I respectfully dissent....

While it is true that Padilla dealt with the duty of counsel, rather than the duty of the courts, to inform a criminal defendant about deportation, the rationale employed by the Court in rejecting the direct/collateral consequence dichotomy applies with equal force in determining the voluntariness of a guilty plea where the court has failed to advise the defendant of SORA registration, which is also a civil penalty "difficult to divorce . . . from [a] conviction."...

Gravino's certification as a sex offender was an automatic and immediate consequence of her conviction for rape in the third degree.  Thus, I would hold that sex-offender certification is a direct consequence of Gravino's guilty plea and, without informing Gravino that she would be subject to SORA certification, her guilty plea cannot be said to "represent[] a voluntary and intelligent choice among the alternative courses of action open to" her (North Carolina v Alford, 400 US 25, 31 [1970]).

Similarly, I would hold that a condition of probation that prohibits defendant Ellsworth from living with his children is a most significant and direct consequence of his guilty plea.  I agree with the majority that "courts taking guilty pleas can not be expected to predict any and every potential condition of probation that might be recommended in the presentence report" (majority op., at 15).  It is hardly unforeseeable, however, that upon a conviction for course of sexual conduct with a child in the second degree, defendant would be forbidden, as a term of his probation, from living with or having contact with children, including his own.

Related posts on the recent SCOTUS Padilla ruling:

May 12, 2010 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2) | TrackBack

A failed effort to fake past military service to get a lenient federal sentence

This local article from Vermont, which is headlined "Phony military records surface in Burlington drug sentencing" reports on a remarkable federal sentencing proceeding from earlier this week.  Here are the details:

Leniency in sentencing was denied Monday to a Burlington man convicted of dealing marijuana after federal prosecutors determined he had invented a Vietnam-era Marine Corps career to deceive his probation officer.

Chief U.S. District Judge William Sessions III called claims made by Kimball Manning, 64, outrageous and incredible before sentencing him to 4 1/2 years in prison.

Manning and his wife, Heather Wick Manning, 39, both of whom were indicted in June for trafficking drugs and pleaded guilty in February, were arrested again in March and accused of selling multiple pounds of marijuana while awaiting sentencing for the first offense, Sessions said.  Those allegations are pending in state court -- and they led to the revocation of the couple's pre-sentence release in the federal case.

Sessions granted Heather Wick Manning, who appeared in court Monday after her husband, a delay in sentencing until November, citing the woman's diagnosis with a severe bipolar disorder and her strong family support. Sessions will decide at a May 17 hearing whether she will be released to live under supervision with her mother.

New "non-incarcerative" sentencing guidelines come into effect Nov. 1 that would be ideal for her case, Sessions said.   "In effect, she would be sentenced to treatment," he said.

Kimball Manning's probation officer alerted prosecutors to calendar overlaps between military records and those from Goddard College, which show he was a student at the time, Assistant U.S. Attorney Nancy Creswell said.  U.S. military records official Jeffrey Shattuck, a former Marine, testified Monday that he could find no evidence Kimball Manning served in the Marines, or in any other branch of the military.

At first glance, Manning's typewritten discharge papers appeared convincing, Shattuck said, but they contained close to a dozen errors that "just didn't add up."...  Kimball Manning's attorney, Mark Kaplan, said his client needed "significant mental-health counseling."

May 12, 2010 in Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (7) | TrackBack

May 11, 2010

When can (and how eagerly should) circuits declare procedural problems at sentencing mere harmless error?

The question in the title of this post is prompted by a new opinion today from the Fourth Circuit panel in US v. Boulware, No. 09-5125 (4th Cir. May 11, 2010) (available here).  Here are parts of the panel's ruling (with some cites removed) that got me thinking about this issue (and that also note a circuit split in this arena):

Boulware next argues that the district court did not offer sufficient reasons to show that it made an individual assessment of the specific circumstances in her case in light of the relevant factors under 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2009) and the arguments presented. The government concedes that the district court committed this procedural error, but nonetheless argues that the error was harmless. We are, of course, not bound by the government’s concession, but even assuming that the court’s explanation was insufficient, we agree with the government’s assertion that any error was harmless....

Because Boulware argued that the § 3553(a) factors warranted a below-guidelines sentence, the issue is properly preserved, and we therefore apply harmlesserror review in considering whether Boulware’s alleged procedural error warrants reversal.[FN2]

[FN2] We note that some courts have held that there can be no harmless-error review when a district court fails to sufficiently explain its sentence. See, e.g., In re Sealed Case, 527 F.3d 188, 193 (D.C. Cir. 2008). We have rejected that approach, however. See United States v. Lynn, 592 F.3d 572, 580 n.5 (4th Cir. 2010)....

In light of the strong indications that the district court fully considered Boulware’s argument for a below-guidelines sentence, and in light of the weakness of that argument, the notion that having to explain its analysis further might have changed the district court’s mind — even if realistic in Lynn — is simply unrealistic in the present case, and remand for resentencing would be a pointless waste of resources.  We therefore hold that even assuming that the district court committed procedural error in failing to sufficiently explain the sentence imposed in light of the § 3553(a) factors, any error was harmless. Cf. Neder v. United States, 527 U.S. 1, 18 (1999) ("Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it." (internal quotation marks omitted)).

The cite and quote to the Supreme Court's work in Neder at the end of this opinion in Boulware is what has prompted me to blog about this case.  I sometimes fear that defendants who have received seemingly reasonable sentences may be a bit too eager to appeal purely procedural sentencing errors, in part because circuit courts have been generally far more willing to reverse sentences on procedural grounds rather than substantive grounds.  And yet, I do not think that it is essential or even worthwhile for circuit courts to develop a robust harmless error jurisprudence in this setting to avoid the risk of "bestir[ring] the public to ridicule" the judicial process.   But I am certain that day-to-day federal sentencing practitioners likely have a better sense that I ever could in the ivory tower concerning  these interesting (and circuit splitting) appellate sentencing review issues.

May 11, 2010 in Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5) | TrackBack

Notable new note on the CVRA and victims of financial fraud

Thanks to this post at CO, I see that the May 2010 issue of the Minnesota Law Review has this interesting new student note on the ways lower courts are stuggling with aspects of the Crime Victims' Rights Act. The note is by Julie Kaster and is titled "The Voices of Victims: Debating the Appropriate Role of Fraud Victim Allocution Under the Crime Victims' Rights Act."  Here is the abstract:

The economic collapse of 2008 witnessed the greatest explosion of financial fraud cases in recent memory. The Crime Victims’ Rights Acts (CVRA), a federal statute granting victims rights in court, gives victims of financial swindlers a day in court to recount their financial hardships—a process known as victim allocution. The CVRA also gives victims the ability to petition for a writ of mandamus if the district court fails to respect the right of allocution. Victims’ rights to allocution are not absolute, however, as the CVRA grants the court the ability to fashion “reasonable procedures” to limit victim allocution. Circuit courts divide over the standard of review that appellate courts should use when reviewing mandamus petitions on issues such as victim allocution. This stark division highlights an underlying tension in the criminal justice system and requires probing analysis into the benefits of allocution, the constitutional protections for the defendant, and the scarce judicial resources of the court. This Note urges Congress to amend the CVRA to empower district courts to limit victim allocution and subject that decision only to the traditionally high standard of mandamus review on appeal.

May 11, 2010 in Victims' Rights At Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

Anyone note anything notable (or dealing with criminal justice) in the Kagan converage?

Over at all the biggest law blog spots like How Appealing and SCOTUSblog and The Volokh Conspiracy have more links and analysis concerning President Obama's nomination of SG Elena Kagan for the Supreme Court than any human could possibly process.  Based on a brief scan of the coverage and commentary, I have yet to see any new or unanticipated issues raised in conjunction with her nomination. Even more importantly for this space, I have yet to see a single story focused on Kagan and the standard criminal justice issues (as opposed to "war on terror" issues) that comprise a large part of the SCOTUS docket.

The question in the title of this post is my bleg to readers to help me keep an eye out for any especially interesting or blog-worthy stories about Kagan and/or about the views she might have on SCOTUS-significant criminal justice issues ranging from the death penalty to the Second Amendment to Apprendi and Blakley and Booker and Crawford.  As has been the recent modern tendency with SCOTUS nominations, I expect and fear that important real-world criminal justice issues will take a back seat to many other issues that play better on talk radio in the discussion over SG Kagan. 

Some recent related posts on the Kagan nomination:

UPDATE I just noticed in a comment thread to a prior post that an anonymous commentor going by the label  "Law faculty factory fellow" has spotlighted this intriguing NYTimes op-ed by David Brooks about SG Kagan, which is headlined "What It Takes."  The anonymous commentor adds this comment before the link: "Organization Kids: Kagan and Prof. Berman both fit the mold pretty well."  Candidly, I am not sure whether to be flattered or insulted, and thus I will opt for feeling flattered to be named in the company of the woman very likely to be our newest (and youngest) Supreme Court Justice.

May 11, 2010 in Who Sentences | Permalink | Comments (6) | TrackBack

"For Crime, Is Anatomy Destiny?"

The question in the title of this post is the headline of this interesting new piece from the New York Times.  Here are excerpts:

Poverty, greed, anger, jealousy, pride, revenge. These are the usual suspects when it comes to discussing the causes of crime. In recent years, however, economists have started to investigate a different explanation for criminal activity: physical attributes.

A small band of economists has been studying how height, weight and beauty affect the likelihood of committing — or being convicted of — a crime. Looking at records from the 19th, 20th and 21st centuries, they have found evidence that shorter men are 20 to 30 percent more likely to end up in prison than their taller counterparts, and that obesity and physical attractiveness are linked to crime.

“The profession has developed a large interest in biology,” what some refer to as anthropometric economics or history, said Gregory N. Price, an economist at Morehouse College and one of the authors of a paper on height and crime....

Linking physical traits to criminality may sound like a throwback to the biological determinism advocated by 19th-century social Darwinists who believed that there was a genetic predisposition for wrongdoing. Practitioners are quick to distance themselves from such ideas.

Mr. Price, for example, argues that crime can be viewed, at least partly, as an “alternative labor market.” If individuals with certain physical attributes are disadvantaged in the labor force, they may find crime more attractive, he said....

A link between a physical attribute and salary, or crime, does not necessarily mean cause and effect... [as] Howard Bodenhorn, an economist at Clemson University, and Mr. Price [found] from 19th-century prison records. In that era increased body weight was associated with a lower risk of crime. In the 21st century, though, in which service jobs are much more common, Mr. Price found that being overweight was linked to a higher risk of crime....

Mr. Price has suggested that there may be policy implications in his work, saying, “Public health policies successful at reducing obesity among individuals in the population will not only make society healthier, but also safer.”

I wonder if folks on the left have considered, relying on this research connecting crime and physical attributes, promoting health care reform as a public safety necessity. Conversely, I wonder if folks on the right have considered, relying on this research connecting crime and physical attributes, complaining that any new tax on cosmetic surgery could make us less safe. And perhaps we academics need to start worrying about police forces using this research to justify engaging in aesthetic profiling.

Getting a little more serious, based on the title of this article, I am a bit troubled that the piece fails even to mention the fact that sexual anatomy certainy seems to be directly connected to crime in the sense that men are consistently and predictably more likely to commit crimes and to commit serious crimes than women. As I have noted in prior posts, the important basic statistical link between gender and crime is, in my view, too rarely noted or stressed in discussions of crime and punishment.

Some related prior posts on gender and crime issues:

May 11, 2010 in Data on sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (4) | TrackBack

Major reasonableness ruling from Second Circuit in child porn downloading case

The Second Circuit handed down this morning a must-read panel opinion in US v. Dorvee, No. 09-0648 (2d Cir. May 11, 2010) (available here), which a helpful reader described to me as "arguably the most significant one decided by any lower federal court since Booker."  I am not sure I think the the Dorvee ruling is quite that huge, in part because the "child porn downloading" context may limit its broader significance within and outside the Second Circuit.  Nevertheless, as these passages from the start and end of the opinion highlight, Dorvee is very important for lots and lots of reasons:

Justin K. Dorvee pled guilty to one count of distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). He was sentenced by the United States District Court for the Northern District of New York (McAvoy, J.) to the statutory maximum of 240 months, less 194 days for time served for a related state sentence. He challenges both the procedural and substantive reasonableness of his sentence. Our review of the record indicates that the district court may have improperly calculated Dorvee’s Guidelines range which, we conclude, constitutes procedural error. We also conclude that the sentence imposed on Dorvee is substantively unreasonable. We therefore vacate the judgment and remand to the district court for resentencing....

District judges are encouraged to take seriously the broad discretion they possess in fashioning sentences under § 2G2.2 – ones that can range from non-custodial sentences to the statutory maximum – bearing in mind that they are dealing with an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results.  While we recognize that enforcing federal prohibitions on child pornography is of the utmost importance, it would be manifestly unjust to let Dorvee’s sentence stand.  We conclude that Dorvee’s sentence was substantively unreasonable and, accordingly, must be revisited by the district court on remand.

Once I have a chance to read the full Dorvee opinion closely, I will have a lot more to say about its likely import and impact.  For now, it is already interesting to speculate whether the Government might be moved to seek en banc or even cert review of this ruling.

May 11, 2010 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences | Permalink | Comments (7) | TrackBack

May 10, 2010

Notable Eleventh Circuit ruling on a new media criminal justice issue

Though not principally a sentencing case, a new opinion today from the Eleventh Circuit addresses a new media issue that is arising more and more frequently in sentencing settings.  The ruling in US v. Phaknikone, No. 09-1008 (11th Cir. May 10, 2010) (available here), gets started this way:

The main issue presented in this appeal is whether the district court abused its discretion by admitting the profile page, subscriber report, and photographs from the MySpace.com account of Souksakhone Phaknikone to prove that he committed a string of bank robberies “like a gangster.” Fed. R. Evid. 404(b).  Phaknikone appeals his fifteen convictions of armed bank robbery, 18 U.S.C. § 2113(a), (d), carrying a firearm in relation to a crime of violence, id. § 924(c), and possession of a firearm by a convicted felon, id. § 922(g)(1), and his sentence of 2,005 months of imprisonment for those convictions.  Phaknikone argues that the district court abused its discretion by admitting the MySpace evidence because it was offered to prove that he acted in conformity with his bad character.  We agree, but in the light of the overwhelming evidence of Phaknikone’s guilt, the error was harmless. We also reject Phaknikone’s remaining arguments that the district court abused its discretion in its answer to a question of the jury; that section 922(g)(1) violates the Commerce Clause; that the district court misinterpreted section 924(c); and that his sentence is unreasonable.  We affirm Phaknikone’s convictions and sentence.

May 10, 2010 in Procedure and Proof at Sentencing | Permalink | Comments (6) | TrackBack

Any thoughts as to who will or should replace Elena Kagan as Solicitor General?

In addition to thinking about how the SCOTUS confirmation hearing for SG Kagan are likely to play out, my thoughts today keep wandering toward who might get to be the next Solicitor General. 

In part because they are both friends and both criminal justice gurus, I keep thinking about current deputy SG Neal Katyal (of Hamden fame) and Stanford law prof Jeff Fisher (of Blakely and Crawford fame).  I would be thrilled if either was the next SG, but I have absolutely no insider knowledge about their prospects and no sense of whether either would be good politics.  Still, for my own parochial reasons, I am going to call them the front-runners until someone tells me otherwise.

May 10, 2010 in Who Sentences | Permalink | Comments (8) | TrackBack

Another scheduled Ohio execution, another novel complaint about execution protocol by condemned

As detailed in this local story, which is headlined "Death Row inmate files new injection argument," Ohio's now-standard monthy execution plans has been met with another Ohio inmate's now-standard novel execution challenge.  Here are the details:

An Ohio inmate facing execution this week says his tolerance to a lethal injection drug could lead to a painful execution that would deprive him of his constitutional rights.  Michael Beuke, 48, scheduled to die Thursday for fatally shooting a man while hitchhiking in 1983, made his claim in a court filing Friday.

Beuke asked U.S. District Judge Gregory Frost to stop the execution because it could deny him the quick and painless death promised by Ohio law and could constitute cruel and unusual punishment in violation of the Constitution.  Beuke said a barbiturate he takes for a seizure disorder could limit the effectiveness of midazolam, the first drug called for in Ohio's backup execution method.

It's a twist on a similar argument made last month by another Ohio Death Row inmate who said he had an allergy to anesthesia.  The federal courts rejected Darryl Durr's claim, and he was executed April 20.

I will be quite surprised if Beuke's (twisted?) argument has any more success than Durr's, and thus I fully expect Ohio this week to complete its sixth (one-drug lethal injection) execution in as many months. 

Some recent related posts:

May 10, 2010 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (2) | TrackBack

Early thoughts and questions about SCOTUS nominee Elena Kagan

As detailed via many links at How Appealing, it is soon to be official that President Obama will nominate former Harvard Law School Dean and current Solicitor General Elena Kagan to replace retiring SCOTUS Justice John Paul Stevens.  Here are my first thoughts and questions in response to this nomination.

As a matter of biology and biography, I am very pleased with the choice.  For my daughters' sake, I had hoped President Obama would add more women to the Supreme Court, and I am very excited that the Court will likely soon have three female Justices for the first time ever. 

In addition, for substantive law reasons, I think younger is better for SCOTUS these days.  Lots of new technology issues are likely better understood by a Justice who knows her way around a computer, and thus SG Kagan's relative youth is a plus.

Relatedly, I cannot help but like seeing yet another Princetonian and HLS grad added to the Court.  This has to be good for my alma maters, both of which I love and respect greatly.  And, as regular readers know, I have long been hoping for a Justice without judicial experience.  Plus, to have a new Justice with academic inclinations certainly feels like a plus to me.

Finally, Kagan is largely a blank slate on criminal justice issues, though she likely got a bit of a crash course on some federal criminal justice matters in her relatively short stint as SG.  I think this blank slate state is a good thing for the Court's future sentencing jurisprudence, but this is most speculation.  And speaking of speculation, here are some follow-up questions for readers:

1.  What can/should we take away from the work of the SG's office under Kagan's leadership?

2.  Who is likely to replace Kagan as SG?

3.  What will be the first major criminal justice case on which Kagan has a decisive vote?

UPDATE: The President's official introduction of his nominee this morning stressed both biology and biography (including the biographies of SG Kagan's grandparents and parents and siblings).  And, interestingly, while President Obama noted Kagan's ability to bring conservatives to HLS as Dean, new SCOTUS nominee Kagan stressed her time serving bosses Mikva, Marshall, Clinton and Obama that should signal to the left that their heroes made a habit of hiring Kagan for critically important professional roles.

In addition, to throw in one last point on biology, I must not my pleasure with the prospect of having another Justice who is shorter than me (which is not easy).

May 10, 2010 in Who Sentences | Permalink | Comments (9) | TrackBack

Will the continued drop in crime rates help Democrats deflect the usual "soft-on-crime" attack?

This post's question about the usual crime, punishment and politics dialogue is inspired by this intriguing article in today's Washington Post, which is headlined "Drop in crime might be a boost for O'Malley." Here is how the piece starts:

Maryland Gov. Martin O'Malley is scheduled to announce Monday that the state recorded fewer violent crimes last year than at any point since 1979 and that the overall number of crimes dipped to an all-time low since Maryland police began uniformly reporting them more than 35 years ago.

By another key measure -- the likelihood that a resident will fall victim to murder, rape, robbery or violent assault -- Maryland is expected to drop out of the nation's 10 most dangerous states for the first time in more than two decades.

Maryland's improving public safety record stands out even amid a national phenomenon of falling crime rates, including a precipitous drop last year in the number of homicides across the greater Washington region.

The good news comes at an opportune time for O'Malley: at the outset of his reelection campaign. Over the coming months, O'Malley (D), who won the governor's mansion in part on a reputation as Baltimore's tough-on-crime mayor, is expected to reclaim the mantle of crime fighter.

But with crime rates falling fast nationwide, assessing how much credit O'Malley deserves for Maryland's record lows remains a tough task. Recent high-profile crimes, including the killing of an 11-year-old Eastern Shore girl in December that exposed major gaps in the state's supervision of sex predators and the slaying in February of a teacher at a state-run juvenile detention facility in Prince George's County, have provided entry points for O'Malley's challenger, former governor Robert L. Ehrlich Jr. (R), to question the state's progress.

During this year's General Assembly session, Ehrlich criticized O'Malley and the state's Democratic-controlled legislature for failing to more quickly tighten sex-offender rules. Last week, Ehrlich accused O'Malley and powerful Democrats opposed to capital punishment of "shenanigans" to circumvent the state's death penalty laws, effectively maintaining a de facto moratorium on executions for Maryland's five death-row inmates.

In an interview Saturday, O'Malley said he was looking forward to making the case that his administration's award-winning tactics aimed at cracking down on violent repeat offenders, tightening parole and probation standards, targeting at-risk youths and clearing the state's backlog of unanalyzed DNA samples have made Marylanders safer.

Recent related post:

May 10, 2010 in Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (8) | TrackBack

May 9, 2010

"Rethinking Recidivist Enhancements: The Role of Prior Drug Convictions in Federal Sentencing"

The title of this post is the title of this important new article by Sarah Russell just published in the UC Davis Law Review.  The article analyzes recidivist enhancements based on prior drug convictions from a policy perspective, and also introduces an approach for challenging the application of these enhancements using the Supreme Court's decision in Shepard.  Here is the abstract:

Recidivist sentencing enhancements, which increase criminal sentences for defendants with prior convictions, are a prominent feature of the federal criminal justice system.  This Article considers the policy rationales supporting recidivist enhancements and reexamines them in light of two recent Supreme Court cases, United States v. Booker and Shepard v. United States.   Recidivist enhancements are traditionally justified based on rationales of retribution, deterrence, and incapacitation; proponents justify recidivist enhancements on the theory that people who reoffend are more culpable and more likely to recidivate. There is considerable doubt, however, regarding whether these rationales support the expansive federal enhancements currently tied to prior drug convictions. 

The Supreme Court’s decisions in Booker and Shepard, which provide judges with additional sentencing discretion, allow judges to reexamine these rationales in the cases before them. Booker rendered the sentencing guidelines advisory, and judges may now decline to apply guidelines enhancements on policy grounds.  Shepard limits the types of evidence that a judge may consider in determining whether a prior state conviction triggers a federal sentencing enhancement and allows judges to avoid applying statutory and guideline enhancements in many cases.  Innovative Shepard litigation in the District of Connecticut has recently led to a marked reduction in the number of enhancements based on drug convictions applied by judges in the District.  Judges nationwide can apply this Shepard analysis.  Although rigorous application of Shepard increases sentencing discretion and may lead to more just and effective sentences in individual cases, Shepard can also create sentencing disparities for similarly situated defendants.  Under Shepard, the application of an enhancement may depend solely on factors such as the availability of court transcripts or whether the defendant’s state conviction precisely matches the language of a federal enhancement.  Given the potential for unwarranted disparities — and the serious doubts as to whether the enhancements further any of the purposes of sentencing — Congress and the U.S. Sentencing Commission should reduce the magnitude of enhancements based on prior drug convictions or even eliminate them altogether.

May 9, 2010 in Booker in district courts, Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Who Sentences | Permalink | Comments (1) | TrackBack

I am growing confident Elena Kagan will be Prez Obama's SCOTUS nominee...

because the folks at SCOTUSblog now have posted here a nearly 10,000-word commentary, which discusses "the most significant aspects of Elena Kagan’s experience and writings as they relate to the Supreme Court [and] various criticisms that have been raised against Kagan, including with respect to her views on the military (supposedly too liberal) and executive power (supposedly too conservative), as well as the prospect that she will be required to recuse from a substantial number of cases early in her tenure on the Court."

I would be quite surprised if the shrewd folks at SCOTUSblog would put up this comprehensive treatment of Kagan if she was not very likely to be named in the next few days by President Obama.  I suppose it is possible that the intense discussion of Kagan the last few days is just a ball fake by the Prez before he drives to the rim with a different nominee.  But I think it is time to start making predictions about whether Kagan will get more votes to confirm than did Justice Sotomayor, and also to start speculating about whom might get named to replace Kagan as SG.

Some recent related posts:

Update: Major media are reporting. SG Kagan will be officially named as the nominee at 10am Monday.

May 9, 2010 in Who Sentences | Permalink | Comments (19) | TrackBack

What sentence might victim Sarah Palin urge for her hacker?

In this postfrom last weekend, I noted that there were lots of interesting and important computer crime sentencing issues raised by the recent conviction of a college student who hacked into Sarah Palin's Yahoo Mail account in 2008.  One of those issues concerned whether under the federal Crime Victims Rights Act, Sarah Palin would formally qualify as a "victim" of the criminal hacker.  Professor Paul Cassell, who is an expert and frequent litigator under the CVRA, responds via this postat The Volokh Conspiracy with these insights:

[Would] Sarah Palin ... be considered a “victim” of the crime under the Crime Victims Rights Act (CVRA), thereby eligible to give a victim impact statement (either or orally or in writing) when the hacker is sentenced[?] The answer to that question, I believe, is clearly “yes.”...

The CVRArequires that a person be “directly and proximately” harmed by an offense to be protected by the statute. Given that the indictment itself alleges a “tortious invasion of privacy” committed against Palin, it seems clear that she qualifies for protected victim status.

Sarah Palin has condemned the crime – and applauded the recent verdict – on her Facebook page.  It is probable that the Probation Officer preparing the pre-sentence report will contact her. Perhaps she will want to pass along comments directly to the judge as well.  If so, like every other “victim” of a federal crime, the Crime Victims’ Rights Act gives her that right.

These helpful points in turn prompt the question that is the title of this current post: what sentence might Sarah Palin urge for her hacker?  I suspect she might avoid recommending (at least publicly) a specific prison term, but might she urge (publicly?) some kind of shaming sanction or community service as part of the sentence? 

Would it be fitting for the defendant here to be ordered to create a YouTube video explaining the harms of hacking, and might Palin seek to be involved in such a shaming/service project?  At the very least, such a video would make for a good Facebook link.

Recent related post:

May 9, 2010 in Offense Characteristics, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (9) | TrackBack

"Protecting the public while saving public money"

The title of this post is the headline of this op-ed out of Missouri, which is authored by a county-level prosecuting attorney. Here are some notable excerpts:

It is a myth that prisons are full of first-time nonviolent criminals.  Fewer than 7 percent of the inmates in Missouri prisons fall within the Department of Corrections’ definition of “first-time nonviolent offender.”  That means 93 percent of Missouri’s 30,000 prisoners are violent or chronic felony offenders, according to the corrections department’s own narrow definition.

More importantly, the term “first-time nonviolent offender” includes people who clearly deserve to be in prison.  The term does not mean the offender is incarcerated without good reason or, in some instances, does not pose a danger to the public.

For example, the department categorizes the following crimes as “nonviolent”: felony DWI offenders with four or more prior convictions; weapons charges; aggravated stalking; burglary while someone is at home; resisting arrest resulting in a risk of death; and escape involving the use of weapons.

Prosecutors recognize that the remaining offenders — far fewer than 2,000 inmates — may not normally pose a danger if released.  However, the vast majority of these offenders have already received multiple chances on probation and failed repeatedly.  Ultimately, judges must have the ability to incarcerate offenders — even nonviolent ones — if those people refuse to conform to the terms of court-ordered supervision.

Other inmates have committed a particularly aggravated nonviolent offense such as stealing hundreds of thousands of dollars or breaking into dozens of homes.  It is true that 41 percent of these offenders re-offend when released. It is also true that judges correctly recognized these offenders’ likelihood of victimizing others when originally sentencing them to prison.

Prosecutors agree there are cost-efficient solutions to address true nonviolent offenders in a way that promotes recovery and rehabilitation rather than simply punishing people through incarceration.  For example, drug and DWI courts can address the serious needs of addicts at one-third the cost of incarceration.  Such programs can keep people out of the criminal justice system forever if they are motivated to be successful.

May 9, 2010 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1) | TrackBack