Sentencing Law and Policy

"Ghostwriting: Filling in the Gaps of Pro Se Prisoners' Access to the Courts"

The title of this post is the title of this interesting new piece by Ira Robbins available via SSRN. Here is the abstract:

Compared with other litigants, pro se prisoners are at an inherent disadvantage when they try to vindicate their rights.  They lack many of the resources enjoyed by non-prisoner litigants. They have limited finances and limited access to legal-research materials.  Even if they had such access, their illiteracy would lessen its effectiveness.  Moreover, many attorneys are unwilling or unable to undertake full representation of prisoner litigants.  As a result, pro se prisoners struggle to navigate the complex legal system, often losing their cases on procedural grounds before ever reaching a decision on the merits.

This Article argues that, in order to provide pro se prisoners with the access to the courts that law and justice require, attorneys (and sometimes non-attorneys) should be permitted to ghostwrite pleadings for them — that is, to draft pleadings that prisoners will then file pro se. Attorneys who may otherwise be reluctant to represent prisoner litigants as counsel of record might still be amenable to providing services in this limited way.  Limited-scope representation — or “unbundled legal services” — is not an anomaly.  Indeed, most states accept the practice in at least some contexts, and the American Bar Association recently gave its stamp of approval to ghostwriting. N evertheless, many courts and commentators contend that ghostwriting by attorneys is unethical, that it gives pro se litigants an unfair advantage (because their pleadings are entitled to judicial benevolence), and that it encourages the unauthorized practice of law.  Addressing these concerns, this Article considers the various forms that ghostwriting could take — i.e., whether ghostwriting attorneys should be required to disclose their names, the fact of their assistance, or the nature of their assistance — and concludes that ghostwriting should be allowed without any disclosure of attorney assistance at all.  Indeed, disclosing such assistance may, in some instances, actually violate ethical rules.  While ghostwriting likely constitutes the practice of law and might justifiably be rejected in other contexts, this Article recommends that courts and bar associations endorse the practice of ghostwriting for pro se prisoners, to give these disadvantaged litigants a more even playing field on which to challenge alleged violations of their constitutional rights.

Noting the Sixth Circuit poor habeas record when SCOTUS notices

Thanks to How Appealing, I saw that the The Daily Journal of California has this notable new piece headlined "6th Circuit Takes Lead As Most Reversed Appeals Court."  Here is how it begins:

The San Francisco-based 9th U.S. Circuit Court of Appeals, often categorized as too liberal and out of sync with the more conservative U.S. Supreme Court, faces some unusual competition this term for its crown as the most reversed circuit.

Earlier this week, the justices reversed the Cincinnati, Ohio-based 6th Circuit for the seventh time in seven cases (including one summary reversal), meaning a 100 percent reversal rate for the term.

Of those, five, including the summary reversal, were habeas corpus cases in which the appellate court had granted relief to the defendant only to be second-guessed by the justices.

The most high-profile was this week's Miranda ruling, in which the court held on a 5-4 vote that a suspect's silence during a police interrogation did not invoke his right to silence. Berghuis v. Thompkins, 2010 DJDAR 8047.

Pro-defendant rulings in habeas corpus cases that are subsequently reversed by the high court are traditionally associated with the 9th Circuit, especially when the court's liberal figurehead, Judge Stephen Reinhardt, authors the opinion in question.

Due to its size and larger caseload, the 9th Circuit always takes up a greater proportion of the Supreme Court's docket than other circuits. It's too early to say what the 9th Circuit's reversal rate will be this term as only four of the 14 argued cases have been decided. Of those, three were reversals.

Kent S. Scheidegger, legal director of the conservative Sacramento-based Criminal Justice Legal Foundation, said it was "quite possible" that the 6th Circuit will, for this term, take the 9th Circuit's mantel as the circuit most at loggerheads with the Supreme Court - at least in terms of habeas corpus cases.

Although overall, the number of 6th Circuit cases under review was fewer than the number of 9th Circuit cases, it is more noteworthy because the circuit is smaller than the 9th, he added. "To have that many reversals is even more significant than it would be for the 9th," Scheidegger said.

It's tough to make assessments about the 6th Circuit's reversal rate over several terms because the Supreme Court does not often review more than a handful of its cases each term. Last term, the justices reversed five out of five cases, but in the 2007-2008 term, the court only reviewed three 6th Circuit cases and reversed two.

As for why the Supreme Court suddenly became interested in 6th Circuit habeas rulings, court-watchers say part of the reason is that Michigan Solicitor General Eric Restuccia went to great lengths to flag the issue in his briefs. Of the five 6th Circuit habeas cases decided this term, three were out of Michigan.

Interesting Fourth Circuit opinion affirming Virginia death sentences for female double-murderer

The Fourth Circuit's panel decision today in Lewis v. Wheeler, No. 09-4 (4th Cir. June 4, 2010) (available here), first caught my eye because the case involves a habeas appeal of two death sentences imposed in Virginia on a woman involved in a murder-for-hire scheme that ended the lives of her husband and stepson.  Then, upon a quick read, I discovered that the case has involves some interesting legal issues as well as notable facts.  This final substantive paragraph from the Lewis panel opinion provides a summary of these issues and how they got resolved:

Having fully considered the record in this case, we agree that Lewis has failed to demonstrate that counsel’s failure to preserve and advise her of a possible Apprendi/Ring challenge to the constitutionality of Va. Code Ann. § 19.2-257 rises to the level of constitutionally deficient representation and has also failed to demonstrate that she was prejudiced as a result of counsel’s alleged deficiencies. Accordingly, we affirm dismissal of her ineffective-assistance-of-counsel claims on the merits, as well as the dismissal of her procedurally defaulted challenges to the statute and her guilty plea.

Ohio governor communtes death sentence for next in line for execution

As detailed in this new Columbus Dispatch article, which is headlined "Strickland grants clemency to killer," it appears that Ohio will not have its now usual monthly execution in June.  Here is why:

Gov. Ted Strickland has decided to spare the life of Hamilton County killer Richard Nields who was scheduled for execution next week. Strickland issued a statement this morning saying he agreed with the Ohio Parole Board which voted 4-3 to recommend clemency for Nields.

“I concur with the rationale and recommendation of the Ohio Parole Board majority and have, therefore, decided to commute Mr. Nields’ sentence to a term of life in prison without the possibility of parole,” Strickland said.

Nields, 60, admitted that he killed his longtime girlfriend, Patricia Newsome, 59, in an alcohol-induced rage on March 27, 1997.

It was the second time in 16 capital punishment cases in which Strickland commuted a murder’s death sentence to life in prison. The other 14 men were executed. The Parole Board concluded, and Strickland agreed, that medical testimony in Nields' original trial was unreliable. Both also cited a strong dissent in the case by Ohio Supreme Court Justice Paul E. Pfeiffer and concerns expressed by the 6th U.S. Circuit County of Appeals which said Nields' crime "just barely" got him over the threshold in Ohio's capital punishment law.

Hamilton County Prosecutor Joseph Deters strongly criticized the clemency recommendation, calling it improper second-guessing of decisions made by jurors and courts years after the fact.

Governor Strickland's full statement explaining this clemency decision can be found at this link.

Which still-pending SCOTUS case are you most anticipating?

The Supreme Court is expected to hand down some more opinions next Monday, and all of its pending cases should result in decisions before the end of this month.  Here are five cases (actually, four cases and one set of cases) that I am especially anticipating:

1. McDonald, the Second Amendment incorporation case

2. Dillon, the crack retroactivity case

3. Barber, the good-time credits case

4. Dolan, the restitution order case

5. Black, Skilling, et al., the honest-services cases

I think we may get one (but probably not more than one) of these rulings from SCOTUS next week, though I suspect we won't see most of them McDonald until the very last few days of the Term at the end of this month.

"Assistant public defender charged in attack on prosecutor"

The title of this post is the headline of this local story from Chicago.  And though violent crime should never be taken lightly, this story seems to be amusing to some because of the participants:

A Cook County assistant public defender who represents convicted felons now has to worry about keeping himself out of jail after being accused of pushing and choking a prosecutor at the Criminal Courts Building.

Henry L. Hams, 47, of Chicago was charged late Thursday afternoon with aggravated battery and resisting arrest after a rare scuffle that sent waves of whispers and startled reactions through the building at 26th Street and California Avenue.

Hams and the prosecutor, 50, had just left a courtroom where a discussion about the routine setting of a future court date became contentious. Still upset, Hams complained to the assistant state's attorney outside the courtroom, according to a law enforcement source.

The prosecutor "apparently said, 'Too bad, that's the date the judge set,' and (Hams) just lost it and shoved (the prosecutor) against the wall," the source said. "He said something about how he was sick of being mocked." The prosecutor "was stunned and didn't do anything, and the next thing you know (Hams) had him in a headlock," the source said.

Another source who witnessed the incident said he heard a scuffle and saw Hams choking the prosecutor. "He had his hands wrapped around his throat and was just kind of riding him down the wall," the source said.

A Cook County sheriff's department sergeant and deputy rushed to intervene as Hams was alleged to have throttled the larger prosecutor. "When our deputies attempted to break it up, Hams was on top of the victim choking him with both hands around his neck," said Steve Patterson, a sheriff's department spokesman. "When one of the two deputies attempted to pull Hams off the victim, Hams continued choking the victim with one hand and attempted to resist the deputy's efforts with his other hand."...

Hams works out of the post-conviction unit for the public defender's office and the victim works out of the special litigations section for the state's attorney's office. Patterson said the two only knew each other through legal proceedings.

News of the fracas spread quickly through the hallways. Nobody wanted to talk on the record, but many expressed surprise. "That guy is like (TV character Steve) Urkel -- he's this little, quiet dude," said a veteran courthouse lawyer, chuckling. "(The victim) is going to hear about this one forever."

Big sentencing changes become law in South Carolina

As detailed in ths local report, which is headlined "New law changes criminal sentencing," the Palmetto State has just completed an impressive bit of modern sentencing reform.  Here are the basic details:

South Carolina has a new way of dealing with criminals that judges, victims' advocates, crime and justice experts and Republicans and Democrats all have signed off on.  The comprehensive new law is intended to save money while diverting nonviolent offenders from prison to community-based programs so space is available in prison for violent criminals.  Gov. Mark Sanford signed it into law Wednesday.

The new law was one year in the making. It is intended to:

• Make sure there is space for high-risk, violent offenders in prison while saving the state an estimated $350 million, the cost of building a new prison.
• Help inmates transition from prison life back to society and increase supervision of former inmates in the community.
• Provide incentives for probationers and parolees to stay drug- and crime-free in order to go from being tax burdens to taxpayers.

The lengthy new law also redefines 22 crimes as violent, providing longer sentences for some offenders.

Here are some details about why and how this reform came to happen:

Sanford said the law was "smart on crime," a sentiment echoed by many Wednesday.  The governor said it strikes the right balance and it's good for the taxpayers. Experts from the Public Safety Performance Project of the Pew Center on the States helped the state develop the new law.

The prison population 25 years ago stood at about 9,000 inmates and is today at 24,000.  As the population grew, so did the cost of running the Corrections Department.  In the mid-1980s the prisons ran on $63 million a year. Today it costs $394 million, Sanford said.  In another five years the cost is projected to increase by another $141 million, as the prison population grows by another 3,200 inmates.

"For the taxpayers, there is something fundamentally wrong with that system," Sanford said. "Unless we're going to build a bunch more jails, you have got to look at alternatives.  This bill does that.  I think it strikes the right balance and in the process saves the taxpayers over 400 million bucks."  South Carolina already spends less than $40 per day on each inmate, the second-lowest rate in the nation, Sanford said.

Sen. Chip Campsen, R-Isle of Palms, called the legislation a massive undertaking. He was part of the group that spent the last year coming up with solutions to South Carolina's haphazard criminal justice system. "We really made a difference with this bill," Campsen said. "It is going to change people's lives. It will help offenders get back on their feet and make sure victims get compensated."

Notably, as documented by this editorial from The Economist headlined "Cutting time, cutting crime," this South Carolina reform effort is already garnering praise from various quarters:

Call it one of the tiny wisps of silver emanating from the immense cloud of municipal budget crises: South Carolina's Republican governor today signed off on a sentencing-reform law that passed the state's Republican-controlled legislature by a wide margin....

We rarely consider prisons and jails a service provided by the state, but of course they are: they are a service to law-abiding citizens, even though, unlike most other municipal services, the money is not spent directly on those whom it serves. And as cash-strapped states are cutting schools, libraries and other such services, it is only natural that they look to prisons. Arguing that a library with fewer books and shorter opening hours better serves its users, however, would be laughable; whereas in the case of prisons, putting fewer people in them and helping those who leave never return is precisely what we ought to be doing.

Notable comments on potential cost savings from AG Eric Holder at drug court conference

The DOJ website has posted here remarks delivered today by Attorney General Eric Holder at the annual conference of the National Association of Drug Court Professionals. The whole speech is worth reading for criminal justice fans, and these snippets seemed especially sentencing blog-worthy:

Together, the people in this room have launched, led and sustained a national — and now international — movement.  It’s been just 21 years since the first Drug Court was launched in Miami.  Today, there are more that 2,400 Drug Courts, operating in every U.S. state and in 15 countries. Drug Courts now serve more than 120,000 people a year.  And, to date, over 1 million people have graduated from America’s Drug Courts....

Today, more than 60 percent of people arrested in this country are regular drug users.  About half of those incarcerated are drug dependent.  Yet less than 10 percent of those in need of treatment while incarcerated actually receive it.  This must change.

Now, few would dispute that public safety requires incarceration, and that imprisonment is, at least partially, responsible for the dramatic drop in crime rates nationwide in recent decades.  But, as you all know, incarceration is only part of the answer.  It is not the whole answer.  Imprisonment, with its high economic and social costs, is not a complete strategy for criminal law enforcement, especially when you consider the fact that, currently, one out of every 100 adults in America is incarcerated.

We must focus not only on getting people who commit crimes into prison but also consider what happens to people after they leave prison and reenter society.  And we must recognize that every person with a drug dependency who leaves incarceration without treatment represents an opportunity lost, as well as a continued risk to society....

[W]e have seen that Drug Courts, specifically, reduce crime more than any other sentencing option. The most rigorous and conservative scientific “meta-analyses” have all concluded that drug courts significantly reduce crime as much as 35 percent more than other sentencing options.  And, nationwide, 75 percent of Drug Court graduates remain arrest-free two years after leaving the program.

The long-term effects are just as promising. After the National Institute of Justice completed an evaluation of 6,500 Drug Court participants in Multnomah County, Oregon, over the course of 10 years, we found lower re-arrest rates and reductions in recidivism ranging from 17 to 26 percent.  We also found public savings of almost $1,400 per participant when compared to traditional case processing.  When costs associated with reduced recidivism and other long-term outcomes were factored in, those savings rose to almost $7,000 per participant.

Recently, NIJ completed a five-year evaluation of 23 drug court sites that measured Drug Court practices and their influence on relapse and recidivism.  We’re still consolidating the findings, but preliminary results show that participants reported less drug-related and criminal activity both 6 and 18 months after their admission, and they spent fewer days behind bars as a result.  Interestingly, Drug Courts were particularly effective in preventing relapses among those who had long histories of drug use.  And one other finding I’d like to emphasize — and one that I can appreciate as a former judge — is that outcomes were better for participants who perceived the judge and the program as fair and impartial and the judge as willing to impose serious consequences on those who dropped out.

By promoting sobriety, recovery, and personal accountability, Drug Courts help to break the cycle of drug use, crime, imprisonment, and release without rehabilitation.  Of course, these programs give no one a free pass.  They are strict and can be extraordinarily difficult to get through.  But for those who succeed, as the Drug Courts graduates who are with us today prove, there is the real prospect of a productive future.

Yet, despite clear economic incentives and high levels of growth and success, today, Drug Courts only serve about one half of non-violent, drug-addicted arrestees who are already eligible for these programs.  If Drug Courts were expanded so that they could treat all currently eligible individuals, this result would be more than $2 dollars in savings for every $1 dollar invested — a total of more than $1 billion dollars a year.  And if Drug Courts were expanded so they could treat all arrestees who are at-risk for drug or alcohol abuse or dependence, it is estimated that we would save more than $30 billion a year, and avert millions of crimes.

Debate across the pond on sentencing and sentencing guidelines

A helpful reader sent me this interesting story from The Times, which is headlined "Sentencing Council: judges told that justice is safe from ‘tramline’ sentencing."  The piece is intrguing not only because it details the recent history of sentencing reform efforts in the UK, but also because it echoes the recent history and debate over US federal sentencing law and policy.  Here is how the piece begins:

It must be the toughest judicial brief going: tasked with overseeing sentencing in England and Wales, when prisons are full to bursting and there is no money to build any more.  But Lord Justice Leveson is firm about one thing: “I have not considered this as a brief to produce guidelines that are going to reduce the prison population.”

Leveson, 60, a senior Court of Appeal judge, took on the role in April of chairing the new Sentencing Council.  It has a far-reaching remit to issue guidelines and monitor the impact and cost of sentencing changes.  But he insists: “There is nothing in the legislation that requires us to have regard to resources — although ... we must spell out the resource implications of changes in sentencing practice, of new guidelines or legislation.  But we will still do what we think is right.”

The council of eight judges and six lay members will have a key input into government penal policy.  Ironically, the original plan was quite the opposite: politicians hoped to secure some control over judges’ sentencing practice.

It was concern about rising prison numbers that prompted ministers to set up an inquiry into how they could secure a better match of supply and demand in the prison system.  The report, from Lord Carter of Coles, led to a working group under Lord Justice Gage being asked to examine the American “grid” model — a tick-box approach that would have tightly fettered judicial discretion.  The idea was firmly rejected.

Instead, the Sentencing Council was proposed, to replace the old Sentencing Guidelines Council and Sentencing Advisory Panel.  But the change is not just one of name and streamlining.  For a start, judges “must follow” the sentencing guidelines, not just “take account of” as before.

Judges bristled.  How can this be squared with their independence and freedom to tailor sentences to the crime?  Leveson insists that it can; and that judges are now sanguine about the change.  “Guidelines are not tramlines.  The Coroners and Justice Act 2009 gives judges the freedom not to follow the guidelines where that is not in the interests of justice.”

What, then, will the new council achieve?  “I want to see a consistent approach to sentences — from Bristol to Birmingham, Bolton to Basildon.  I want people to feel confident with the courts system by providing clear information on how people are sentenced.”

Judges do not always make clear that the guideline is the default starting point, he says. That needed spelling out; and better reporting of the reasons for a sentence by the media.  To this end, he plans to gather data in the shape of feedback from judges.  A pilot scheme has started in four Crown Court centres.  The task is huge — the council has economists and statisticians but the prize, in terms of future targeting of resources, “could be substantial”.

I think I may have to make "guidelines are not tramlines" my new sentencing reform mantra.

Does anyone have any experience with the BlogWorld conference?

I just got an e-mail inviting me to take advantage of early bird registration for the 2010 BlogWorld & New Media Expo and Conference taking place this October in Las Vegas.  Since I am always eager to have an excuse to go to Vegas and since I am also eager to figure out a way to take my law blogging to another level (whatever that means), I am thinking seriously about trying to make it to this event.

I am a bit concerned, however, that this BlogWorld event may be more geared to techies and others more interested in marketing than in content creation and dissemination.  Consequently, I am posting here (and in some other blog locales) this bleg for information and feedback on the BlogWorld experience.  Relatedly, I filled out a form to offer to be a speaker at the BlogWorld event (which would make registration free and likely could have other benefits), and I would love to hear from anyone as to whether trying to speak at this event sounds like a sensible idea.

Defendant experiences another reversal of ACCA fortunes via Fourth Circuit's reversal

The Fourth Circuit has an interesting ruling today in US v. Pettiford, No. 09-4119 (4th Cir. June 3, 2010) (available here), which reverses a district court's decision to reduce an ACCA sentence by granting relief in a 2255 action.  Here is how the panel ruling in Pettiford gets started:

Appellee Antoine Jerome Pettiford pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), and received an enhanced sentence of 188 months’ imprisonment, in part because he had five prior convictions which qualified him as a career criminal under the provisions of the Armed Career Criminal Act (the "ACCA"), 18 U.S.C. § 924(e).   Two of the five state court convictions were subsequently vacated, and Pettiford brought a petition under 28 U.S.C. § 2255 for post-conviction relief from the enhanced federal sentence.  The district court granted Pettiford’s petition, holding that as a result of the vacatur of the two state convictions, Pettiford was entitled to relief.  The district court then resentenced Pettiford to a term of 100 months’ imprisonment. For the reasons that follow, we reverse the district court’s order and remand with instructions to reinstate Pettiford’s original sentence.

BJS reports first decline in jail population in modern mass incarceration era

This new press release from DOJ's Bureau of Justice Statistics provides an interesting report on a new accounting of our nation's jail populations:

As of midyear 2009, 767,620 inmates were held in custody of county and city jail authorities, the Bureau of Justice Statistics (BJS) in the Office of Justice Programs, U.S. Department of Justice, announced today.  During the 12-month period ending June 30, 2009, the local jail population declined by 2.3 percent (down 17,936 inmates).  This is the first decline in the U.S. jail population since BJS implemented the Annual Survey of Jails in 1982.  The number of male inmates decreased 1.7 percent (down nearly 12,000) and female inmates decreased 6 percent (down more than 5,900).

Local jails, unlike prisons, are confinement facilities usually operated by a local law enforcement agency. In 2009 approximately 62 percent of jail inmates were unconvicted and being held pending arraignment, awaiting trial, or conviction.  The remainder (38 percent) had been convicted and awaiting sentencing, had been sentenced to serve time in jail or were awaiting transfer to serve time in state or federal prisons.  At midyear 2009, jail authorities were also responsible for supervising more than 70,000 offenders outside of the jail facilities, including 11,800 under electronic monitoring, 11,200 in weekend programs, 17,700 in community service programs, and 12,400 in other pretrial release programs....

Local jails admitted an estimated 12.8 million persons during the 12 months ending June 30, 2009, or about 17 times the size of the midyear inmate population (767,620 inmates). More than four in 10 (42 percent) admissions during the last week of June 2009 were to the largest jail jurisdictions with an average daily jail population of 1,000 or more inmates. Small jail jurisdictions holding fewer than 50 inmates accounted for 6.0 percent of all jail admissions, but they admitted about 35 times the size of their inmate population.

The report, Jail Inmates at Midyear 2009 – Statistical Tables (NCJ 230122), was written by BJS statistician Todd Minton [and] can be found at this link.

It seems safe to speculate that this historic decrease in US jail populations is a result, in part, of tighter local budgets impacting who can be kept in jail for how long and the continuing decrease in crime rates in recent years. 

Ohio Supreme Court declares unconstitutional changes to state sex offender rules pushed by feds

The Ohio Supreme Court handed down an intriguing sex offender registration ruling this morning in State v. Bodyke, No. 2010-Ohio-2424 (June 3, 2010) (available here). The Ohio Supreme Court does everyone the favor of producing an official press release with its decisions, and the Bodyke press release summarizes today's ruling this way:

In a narrowly tailored decision announced today, the Supreme Court of Ohio voided as unconstitutional two sections of the Ohio Adam Walsh Act (AWA) that authorize the state attorney general to reclassify sex offenders who had already been classified by judges under a previous version of the law, “Megan’s Law.” The Court held that the challenged provisions violate the separation-of-powers doctrine of the Ohio Constitution.

Today’s decision leaves in place all of the law enforcement registration and community notification requirements of the AWA applicable to sex offenders who were classified on or after the Jan. 1, 2008, effective date of that law, and reinstates the pre-AWA registration and community notification requirements that judges had ordered offenders to comply with pursuant to Megan’s Law.

Though a "narrowly tailored" decision, this ruling could and probably should have an interesting ripple effect in state compliance with the federal mandates of the federal Adam Walsh Act.  Indeed, a footnote near the start of the Bodyke opinion highlights why Ohio is something of a path-breaker in this arena:

FN 4: Ohio is the only state to have complied with the [federal AWA] mandate, however. Greg Bluestein (December 1, 2009), “Ohio lone state to adopt sex-offender rules,” in Canton Rep.com, available at http://www.cantonrep.com/ohio/x2072228737/Ohio-lone-state-to-adopt-sex-offender-rules (last visited Mar. 22, 2010). The deadline for compliance has been extended from July 2009 to July 2010, but it appears that many states will still be unable, or unwilling, to comply. Id. For manystates, the costs of compliance with the act will far outweigh the ten percent reduction in funding. The cost for Illinois, for example, has been estimated at nearly $21,000,000 to comply with the Act in the first year, but that it will lose less than $1,000,000 if it does not.  See Liz Winiarski, Facing the Compliance Deadline for the Adam Walsh Child Protection and Safety Act, States are Weighing all the Costs (2009), 14 Pub.Interest L.Rep. 192, 193.

Texas (and Ohio) helps keeps US execution pace rapid in 2010

As detailed in this AP report, Texas yesterday executed George Jones "for the fatal shooting of a Dallas man during a carjacking 17 years ago."  This execution was "the 12th this year in the nation's busiest death penalty state" and "two more executions are scheduled for Texas this month." 

In addition, as regular readers know and as this DPIC page details, Ohio is also helping to make sure the US execution rate in 2010 is steady by conducting an execution every month.  And, as this DPIC page of scheduled executions details, four other states besides Texas and Ohio also have executions scheduled for June.  If most of these scheduled executions are carried out, there will have been more than 30 executions in the first half of 2010, and the US will be on pace for the more executions in 2010 than the nation has had in nearly a decade.

A few related posts:

• Might Ohio keep pace with Texas in the number of executions in 2010?
• "A new Texas? Ohio's death penalty examined"
• Potent(?) pace of executions in Ohio starting to produce pushback
• Execution of possibly mentally retarded defendant in Texas could be 50th execution of 2009
• Notable second-term Presidential execution realities

A helpful reminder that Americans don't know much about SCOTUS members

A great old Sam Cooke song came to mind as I read this press release reporting on the lack of knowledge of who is on the US Supreme Court.  (Hat Tip: The Volokh Conspiracy.)  Here are the basics, with a fitting comment from a lawprof:

Nearly two-thirds of Americans cannot name any members of the U.S. Supreme Court, according to a new national survey by FindLaw.com, the most popular legal information website.  Even as Supreme Court nominee Elena Kagan awaits Senate confirmation hearings to replace retiring justice John Paul Stevens, only 35 percent of Americans can name even one member of the nation's highest court.

Clarence Thomas is the most well known justice but could be named by only 19 percent of Americans.  Chief Justice John Roberts was named by 16 percent of people.  Sonia Sotomayor, the newest justice, could be named by only 15 percent of Americans following a highly visible nomination and confirmation process last year....

In addition, many Americans think that retired justices Sandra Day O'Connor and David Souter are still active members of the Supreme Court.  O'Connor and Souter retired from the Court in 2006 and 2009, respectively.

"This result is not especially surprising nor, by itself, should it be alarming," said Michael C. Dorf, a former Supreme Court clerk who currently teaches constitutional law at Cornell University Law School and authors a legal column for FindLaw.  "Even though Supreme Court rulings can have a major impact on contentious issues such as the death penalty, abortion rights, discrimination and environmental protection, the Court issues its rulings as a collective body.  After their 15 minutes before the Senate Judiciary Committee are up, Supreme Court justices rarely appear on television.  What is a source for concern are polls consistently showing that many Americans are unfamiliar with basic features of our constitutional system."

I think it is safe to assume that knowledge about the Supreme Court and its members would increase somewhat (though perhaps not that much) if the Justices were to allow oral arguments to be broadcast.  I am hopeful (though not all that optimistic) that some of the newer Justices will make a push to have SCOTUS arguments televised or otherwise publicly available in real time.

"The Crunch in Federal Prisons"

The title of this post is the headline of this effective new article from The Crime Report.  The piece carries this sub-head: "More prisoners are doing federal time than ever, but Congress isn’t allocating enough funds to pay for them. Prison officials and reformers say a rethink of the system is long overdue."  And here is how the piece gets started:

While cash-strapped states are responding to the nation’s economic crisis by looking for ways to reduce their prison populations, the federal prison system is heading in the opposite direction.

Last year, the 115 federal prisons added 7,000 inmates to their rolls, making a total of 211,000 inmates in federal facilities — and the figure is expected to grow.  The number of federal criminal cases filed annually has increased from 69,575 in fiscal year 2005 to 76,655 in FY 2009.

To make matters more difficult, federal funding isn’t keeping up with the extra burden.  At a U.S. Sentencing Commission hearing in Washington, D.C. last week, U.S. Attorney for Atlanta Sally Quillian Yates said that federal facilities are currently operating at 34 per cent above capacity.  And that, she warned, will have “real and detrimental consequences for the safety of prisoners and guards, effective prisoner reentry, and ultimately, public safety.”

The White House appears to have recognized the problem.  President Barack Obama is seeking a $600 million increase in the prison system’s budget for next year.  The proposal includes filling an additional 1,200 correctional staff positions and opening three new facilities.

But the question is whether a budget-conscious Congress will go along.  The prison system already eats up $6.8 billion, making it the second-largest component of the Justice Department’s budget, just below the FBI.

Eleventh Circuit panel reverses ruling that 30-year mandatory AWA sentence for attempted sex offense is unconstitutional

Long-time readers may recall a notable district court opinion in US v. Farley from September 2008 (discussed in this post), which found unconstitutional a mandatory minimum term of 30 years imprisonment for a defendant who travelled across state lines in an effort to engage in sexual activity with a fictious child.  (Some may also recall the interesting twist, discussed in this February 2009 post, that a group of House Republicans filed a brief in the Eleventh Circuit contending that the 30-year mandatory minimum prison sentence was constitutionally sound). 

This afternoon an Eleventh Circuit panel issued this 112-page opinion in Farley, which starts and ends this way: 

In the Fall of 2006, Kelly Farley was a thirty-seven-year old businessman living in Texas with a pregnant wife and five children, ranging in age from one to fourteen. His interest in families was not limited to his own, and his sexual interests extended beyond what our society and its laws will tolerate. Farley is sexually attracted to girls he described as “still innocent, but starting to bud a little,” and he wanted to have sex with a girl who was around nine to eleven years old. Using the internet, he made contact with the mother of a child of that age and set out to persuade her not only to let him have sex with her daughter but also to join him in sexually violating the child.

To reach that goal Farley engaged in a steady stream of chat room conversations, emails, and phone calls over a period of seven months with the mother, leading up to his arrival in Atlanta carrying directions to the place where he planned to rendezvous with her and her eleven-year-old daughter. Farley’s actions led to his arrest, which led to his trial, which led to his conviction and sentence, which led to the government’s appeal of that sentence, which led to Farley’s cross-appeal of both his conviction and sentence, all of which led to this opinion....

We AFFIRM Farley’s convictions on both counts, and his sentence on Count Two.  We REVERSE the district court’s order declaring unconstitutional the application of the mandatory minimum sentence under 18 U.S.C. § 2241(c), VACATE Farley’s sentence on Count One, and REMAND with instructions to impose a sentence no less than that required by § 2241(c).

The discussion of Eigth Amendment law and its application runs roughly the last 20 pages of this long opinion and it relies heavily on the Supreme Court's 1991 Harmelin ruling in the course of deciding that "the thirty-year sentence required by § 2241(c) in light of Farley’s crime does not lead to an inference of gross disproportionality." Here is some notable passages from this discussion:

The crime in Harmelin was possession of 672 grams of cocaine.  The crime here is travel across state lines with intent to sexually violate an underage child.  While it is true that Farley, through no fault of his own, was unable to inflict that harm on an actual victim, the same could be said of Harmelin.  After all, the 672 grams of cocaine he possessed was seized by police before any of it could be further distributed or consumed, thereby preventing harm to society.  See id. at 988, 111 S.Ct. at 2698 (lead opinion)....

The Court stated in Harmelin that the “possession, use, and distribution” of illegal drugs are serious problems affecting the health and welfare of the population, and it dismissed the argument that Harmelin’s crime was nonviolent and victimless as “false to the point of absurdity.”  Id. at 1002, 111 S.Ct. at 2705–06.  By the same token, the sexual abuse of children, and the use of the internet to facilitate that abuse, are serious problems affecting the health and welfare of the nation.  The Supreme Court, this Court, and other courts have expounded at length on the severity of the crimes involving the sexual abuse of children and the extent of the harm caused by those crimes.....

We would find any suggestion that child sexual abuse is a nonviolent crime as absurd as the Supreme Court found the same suggestion about possession of 672 grams of cocaine.  See Harmelin, 501 U.S. at 1002, 111 S.Ct. at 2706 (plurality opinion).  Even more so.

I would expect that the defendant in this case to seek en banc and/or cert review of this Eighth Amendment ruling by the panel in Farley.  And I would predict, at least as of this writing, that the full Eleventh Circuit and the Supreme Court will not want to hear this case and that this Circuit ruling will thereby be allowed to stand.

Some related posts:

• District Court finds AWA mandatory sentence unconstitutional under the Eighth Amendment
• House Republicans file brief in support of 30-year mandatory minimum sentence in Farley

Green tea party: will Glenn Beck or Sarah Palin or other professed liberty lovers support ending pot prohibition in California?

This piece from the Los Angeles Times, which is headlined "California voters back pot legalization, but support is shaky," provides some very interesting data on very early polling concerning the marijuana ballot initiative to be decided by California voters this November.  Here are some excerpts from the article, after which I will explain the reason for the question in the title of this post:

California voters, by a modest margin, think they should be allowed to grow and consume marijuana, according to a new poll that also found more than 1 in 3 voters had tried pot and more than 1 in 10 had lit up in the past year.

The Los Angeles Times/USC poll [full details and results here] found that voters back the marijuana legalization measure on the November ballot, 49% to 41%, with 10% uncertain about it.  But support for the initiative is unstable, with one-third of the supporters saying they favor it only "somewhat."

"The good news for proponents is that they are starting off with a decent lead. The good news for the opposition is that initiatives that start off at less than 50% in the polls usually have a hard time," said Dan Schnur, director of USC's Jesse M. Unruh Institute of Politics.

The poll also points to a demographic group that is likely to play a key role -- women, particularly those who are married.  Men favor legalization, but women are split.  Among married women, 49% reject the measure while 40% are in favor of the initiative....

Both sides are likely to target mothers, Schnur said.  The measure's backers, for example, could argue that legalization would bring more tax money for schools, while opponents could insist that it would put children at risk. The poll found voters closely divided on those arguments.

The measure's supporters say marijuana taxes could raise more than a billion dollars in revenue; opponents dispute that. Among voters, 42% believe that estimate and 38% think it is wildly exaggerated.

The November initiative authorizes cities and counties, but not the state, to legalize and tax sales.  In Los Angeles County, the epicenter of the Green Rush with more than 600 medical marijuana dispensaries, voters are most inclined to see pot taxes as a way to plug holes in local and state budgets.

Voters were also split over whether legalized marijuana would worsen social problems, such as increasing crime and triggering higher marijuana use among teenagers.  Those concerns appear to have much more potency with voters than the debate over tax revenues. Among those who oppose the initiative, 83% think it would add to the state's social woes; 55% of married women also believe that....

Attitudes toward legalization diverge sharply by age, with support much higher among younger voters.... Chris Donnelly, a 25-year-old substitute teacher from San Diego, has never touched pot but strongly favors the initiative and believes it could support schools. "It wouldn't bother me one bit if marijuana were legal," the unaffiliated voter said. "I don't think it's any more harmful than alcohol."

The poll also offers an unusually detailed look at who is using marijuana in California.  Among those surveyed, 37% of voters said they had tried pot -- a figure roughly consistent with federal surveys of drug use -- and that group strongly supports the initiative. The 11% who had used marijuana in the last year favored legalization by a landslide, 82%. By contrast, the 57% of voters who said they have never used marijuana oppose the initiative.

Though certain types of voters are more likely to light up, marijuana use cuts across all demographic slices, reaching beyond the cliches of skateboarders and aging hippies.  A matchup in the governor's race between Democrat Jerry Brown, who governed the state in the 1970s, and Republican Meg Whitman, the former EBay executive, clearly illustrates this.  Voters who have tried marijuana make up 45% of Brown's supporters, and 37% of Whitman's.  But both candidates oppose legalization.

The question in the title of this post is inspired in large part because I strongly believe that the folks behind the tea party movement, along with sympathetic media pundits and political celebrities like Glenn Beck and Sarah Palin, could have a critical role to play in the passage (or rejection) of the marijuana legalization measure going before California voters this November.  And because this ballot initiative could be a critical turning point in the now decades-old "war on drugs" and drug sentencing policy, this issue is one of the prime 2010 election stories I will be watching especially closely

I am hopeful that the libertarian, small-government wing of the tea party movement will get behind the California marijuana decriminalization ballot initiative.  My instinct is that folks who are truly and deeply committed to the concept of liberty — as is professed by those folks at Liberty Central who claim a commitment to "Founding Principles" of "limited government, individual liberty, free enterprise, ... and personal responsibility" — should be at least somewhat sympathetic to the decriminalization measure going before California voters this November.  Especially important in this context is not only that decriminalization bill will help allow individuals be free to market and consume a particular plant, but also that the initiative is about prioritizing local control over big central government by merely authorizing (but not requiring) cities and counties to legalize and tax sales of marijuana.

Notably, both Glenn Beck and Sarah Palin have stated that they have smoked marijuana; the LA Times poll thus suggests that they are in the demographic group more likely to be supportive of decriminalization.  Beck often claims to be a libertarian, and he has previously been at least willing to promote a candid (and somewhat serious) discussion about whether pot prohibition does more harm than good (as evidenced in videos here and here). 

Palin, as noted here, apparently smoked pot when it was still legal to do so in Alaska.  Palin thus can perhaps help to debunk the common "reefer madness" claims that social problems will get much worse if pot is decriminalized.  Notably, in one of Palin's recent Facebook postings, which expresses support for a new GOP Senate candidate in Alaska, asserts that "the greatness of our country is grounded in the founding principles of limited constitutional government and individual freedom."  Big federal and state government efforts to control through criminalization the growing and sale of certain plants does not seem in accord with these founding principles.

Especially if and when Beck or Palin or other folks often associated with the tea party movement show up in California over the next few months, I hope some serious reporters have the sense to ask them some serious questions about the marijuana initiative going before California voters this November.  Perhaps I am wrong to think there is a natural link between tea-party principles and marijuana decriminalization, and I would like to hear from an array of folks with tea-party instincts about how liberty and small government issues intersect in the criminal justice context.

Some related posts:

• Should and will California's voters legalize marijuana in that state this November?
• "Sarah Palin, Marijuana Law Reformer?"
• Thoughtful academic thoughts on ending marijuana prohibitions
• "Legalizing marijuana not really a dopey idea"
• Is Governor Palin a real fan of jury nullification and pot decriminalization?
• What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
• Did Sarah Palin or any others at the Tea Party Convention talk about pot prohibition or mass incarceration?

"Youthful offenders deserve a second chance"

The title of this post is the headline of this new commentary in the Los Angeles Times authored by Miriam Aroni Krinsky, Ernie Pierce and Jeanne Woodford. Here are excerpts:

One of us is a retired police officer who daily put his life on the line to catch criminals. Another is a former Department of Justice attorney who spent years prosecuting violent drug dealers and organized crime organizations.  The third, a former warden of San Quentin State Prison and director of the California Department of Corrections and Rehabilitation, spent her career ensuring that those convicted served out their sentences as required by law.

Collectively, we have put or kept a lot of people in prison.  Prison is where some people justly belong, many for long periods of time.  But it is exactly our experience in law enforcement that causes us to agree with the Supreme Court's recent decision to abolish the sentence of life without parole for teens in nonhomicide cases.

That decision, however, did not finish the reforms needed in juvenile sentencing.  There are thousands of lifers in the nation's prisons — about 250 in California alone — who as teenagers participated in crimes involving homicides.  They all deserve a second chance, and at least some of them may deserve to be released.

As the high court recently recognized, there are inherent differences between teenage and adult criminals.  A teen who commits a crime, even a terrible one such as murder, is not forever defined by that one act.  Indeed, in our work, we have witnessed dramatic transformations among young people in our correctional facilities and in our neighborhoods....

The Legislature is considering a bill, SB 399, that would allow those who prove they merit a second chance an opportunity to be considered for parole, but only after serving at least 25 years.

Clearly there are offenders who have committed heinous crimes and are unfit to be released regardless of the age they were when they committed their crime.  SB 399 would not allow these people to return to our communities.  Instead, it would allow for a thoughtful review to determine whether, years later, individuals sentenced as youths continue to pose a threat to the community.

We know that sentencing youngsters to a life in prison with no possibility for review of their sentence as they mature into adulthood isn't simply excessive; it is contrary to the interests of our state.

Life without parole does not deter criminal behavior among youths.  Most kids get caught up in crime without analyzing the consequences of their acts.  Indeed, research confirms that teenagers have weak impulse control and reasoning abilities.

Life without parole is also a very costly policy. In the case of young people, these sentences cost California about $2.5 million each.  And without SB 399, there is no way to revisit these sentences and account for the adult that teen has become.

It is time for California, and our nation as a whole, to take the Supreme Court's decision to its next logical step and join the rest of the world by revisiting inflexible life-without-parole sentences for young offenders.  Juvenile offenders are different; our laws and system of justice must acknowledge those differences.

Notable data from new EJI report on racial skew of key criminal justice decision-makers

As noted in this prior post, the Equal Justice Initiative have released this big new report on racial discrimination in jury selection.  Though there is much of interest in this new report, sentencing fans know that juries have very little role in sentencing decision-making except in capital cases and in a few jury sentencing states.  Thus, for those most concerned with sentencing law and policy, an especially significant part of the new EJI report is its brief accounting of the lack of minorities in other critical criminal justice decision-making positions. Specifically, consider these data from the EJI report:

While black employment in law enforcement has increased during the last three decades in major metropolitan departments, racial diversity remains virtually nonexistent in some smaller Southern jurisdictions.  In Houston County, Alabama, where the population is 27% African American, the local police department is nearly 94% white.

State and federal prosecutors also are mostly white.  Approximately 98% of district attorneys in states that apply the death penalty are white.  As the chart opposite shows, African Americans are vastly underrepresented among district attorneys in each of the eight Southern states analyzed in this report.  The latest data show no black district attorneys in Arkansas, Florida, or Tennessee.

Data on the racial diversity of the American judiciary reveal that it continues to be overrepresented by whites in both the federal and state courts.  Nationwide, of a total of over 12,000 state and federal judges, approximately 90% are white, even though racial minorities make up more than 25% of the population nationwide.

People of color are most underrepresented in the state courts.  African Americans constitute 12% of the United States population but fewer than 6% of the bench at all state court levels.

Underrepresentation among appellate judges in the states EJI studied is significant.  African Americans comprise 26% of Alabama’s population but none of the state’s 19 appellate judges is black.  According to the American Bar Association’s National Database on Judicial Diversity in State Courts, Alabama has the smallest percentage of black judges statewide of the studied states, followed by Tennessee.

Just 4.2% of lawyers and judges in the United States are African American, which means that, in addition to being arrested, prosecuted, and judged by whites, defendants typically are represented by white lawyers.

That Arkansas, Florida, and Tennessee all have no black district attorneys is especially notable given that all three states have African Americans populations that significantly exceed the national average.  Also, I believe more than half of all prisoners in these three states are black.  Consequently, even if one does not believe there is significant racial discrimination in the administration of criminal justice in these states and elsewhere, these EJI data should leave no doubt that there is significant racial disparity in the administrators of criminal justice in these states and elsewhere.

Elderly sex offender gets long sentence for not checking ID before taking dirty pictures

This local story out of Michigan, which is headlined "Sex offender, 73, confused why his photos of nude teens caused such a legal fuss," reports on an interesting case involving an old pervert getting in big trouble for not figuring out how to refine his prurient interests.  Here are the details:

Charles Judson Holbrook, sentenced twice for being a child sexual predator, says he doesn't understand why his photography of nude teens has caused such a fuss.  Holbrook, 73 ... was sentenced to 15 to 40 years in prison Tuesday by Kent County Circuit Judge James Robert Redford for taking pictures of girls as young as 14 in exchange for money they used for drugs and shopping.

The incidents occurred between 2003 and 2009 involving three girls, all now older than 18, who lived in or had a friend living in Holbrook's neighborhood.... Three women told a jury Holbrook plied them with gifts and cash to pose nude or semi-nude for photos.

A 23-year-old woman said she was 16 or 17 when she began accepting money from Holbrook to have her picture taken in various states of undress -- including photos taken when she was pregnant at age 17.  She said she used the cash she would get for the photo sessions to buy drugs and alcohol.

Two other women said they posed for Holbrook as teens.  One of the girls was 14 at the time she was photographed.  Another said she posed with other girls and would help recruit them to go to Holbrook's house, telling them they could make money.

The women said they would travel with Holbrook to area parks, and he would treat them to dinner, usually giving them money.  Two of the women also said Holbrook offered them money to have sex, which they refused.  None of the victims showed up for Tuesday's sentencing.

Holbrook's attorney, Freeman Haehnel, pointed out that the girls would show up to Holbrook's home uninvited and freely took money in exchange for posing.  "I don't know who the predator is here," Haehnel said. "It seems both parties were using each other."

Holbrook appeared flummoxed by the whole series of events as the frail man looked around the room for family members.  "I don't understand all this fuss over my picture-taking," Holbrook said.  "All this over my picture-taking?"  Holbrook said he has been fascinated by photography for more than 60 years.

In 2001, Holbrook pleaded guilty to charges he took nude photos of girls whom he met and befriended through his connections as a long-time sports fan and booster club volunteer in the Wyoming and Godfrey Lee school districts.  Holbrook also pleaded guilty to a charge of having sex with a 15-year-old girl.

He was sentenced to one year in jail by then-Kent County Circuit Judge David Soet.  In his earlier case, Holbrook was turned in by a photo developer.

The latest charges were a result of a victim coming forward, although the photos were developed at area drug and grocery stores where Holbrook would have his victims drop off the film and pick up the photographs.  "If I thought there was a problem with my pictures, why, the corner drug store would not have touched them," Holbrook told Redford.

Redford called Holbrook's contentions "utter nonsense" and "completely fictitious." "This case is not about a 73-year-old man's fixation with cameras," said Redford. "This is about a predator taking sexually predatory advantage of vulnerable girls over a period of decades."

The best-case scenario for Holbrook would have him leaving prison at age 88.  But Haehnel said considering Holbrook's health, the sentence handed down Tuesday is tantamount to a life sentence.

I believe that, had the girls photographed reached their 18th birthday when they started posing for cash, then Charles Judson Holbrook's behavior would have been not only legal, but constitutionally protected First Amendment activity.  Thus, it seems that the real key to Holbrook's crime was his failure to ask for ID when teenage girls came to his door asking to be paid nude models. 

In this context, it also bears noting that many states are prepared and eager to treat teens as adults when they commit crimes --- for example, this recent local story reports on Michigan charging a 14-year-old as an adult for a home invasion --- but they then readily assail someone like Charles Judson Holbrook for treating teens like adults in another context.  Holbrook's surprise about his functional life sentence for taking nude pictures of teens perhaps makes sense given that Michigan asserts that teens can and should be treated like adults in other criminal justice settings.

I wonder what the folks at Liberty Central, who claim a commitment to "Founding Principles" of "limited government, individual liberty, free enterprise, ... and personal responsibility" would say about an old guy getting a functional life sentence for simply running his own small (teen porn production) business. 

Charlie Sheen cuts a plea deal to cut down jail time for assaulting his wife

As detailed in this hard-hitting E! Online report, which is headlined "Charlie Sheen Makes a Deal; Will Go to Jail," a famous actor is going to be spending a (small) part of his summer in the slammer.  Here are the details:

Charlie Sheen is going from Two and a Half Men to two-and-a-half weeks…behind bars.

E! News has confirmed that the sitcom star will plead no contest to misdemeanor assault stemming from his Christmas Day arrest for attacking long estranged and newly over it wife Brooke Mueller.

Although Chief Deputy District Attorney Arnold Mordkin declined to comment on specifics, the plea would likely result in a 30-day jail sentence.

So where does the two-and-a-half weeks come in? Well, being the highest-paid sitcom star on TV does have its perks, and a cunning defense lawyer is apparently one of them.

Sheen is unlikely to make waves while in Aspen lockup and his good behavior will bring his sentence down significantly, meanwing he'd only serve about half the time. Sheen's attorney, Richard Cummins, has not returned calls seeking comment on Sheen's dealings.

The 44-year-old shaven wonder is planning to enter the plea at his hearing on Monday in Aspen on Monday. Before then, he'll need to finish up his court-ordered 36 hours of anger management classes.

Sheen originally faced two misdemeanor charges of criminal mischief and third-degree assault as well as felony menacing. The felony count, which carries a maximum three-year sentence, will now disappear.

New EJI report on racial discrimination in jury selection

As detailed in this new New York Times article, which is headlined "Study Finds Blacks Blocked From Southern Juries," the folks at the Equal Justice Initiative have released a new report on racial discrimination in jury selection.  This EJI release about the report gets started this way:

Nearly 135 years after Congress passed the Civil Rights Act of 1875 to eliminate racial discrimination in jury selection, people of color continue to be excluded from jury service because of their race, especially in serious criminal trials and death penalty cases.  EJI today released a new report, “Illegal Racial Discrimination in Jury Selection: A Continuing Legacy,” which is the most comprehensive study of racial bias in jury selection since the United States Supreme Court tried to limit the practice in Batson v. Kentucky in 1986.

“The underrepresenation and exclusion of people of color from juries has seriously undermined the credibility and reliability of the criminal justice system, and there is an urgent need to end this practice,” said Bryan Stevenson, EJI's Executive Director.  “While courts sometimes have attempted to remedy the problem of discriminatory jury selection, in too many cases today we continue to see indifference to racial bias."

During two years of research in eight southern states (Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina, and Tennessee), EJI interviewed over 100 African-American citizens who were excluded from jury service based on race and reviewed hundreds of court documents and records.  EJI uncovered shocking, present-day evidence of racial discrimination in jury selection....

The full EJI report is available at this link.

"Data Accuracy the Next Frontier in Criminal Justice"

The title of this post is the headline of this intriguing piece from The Legal Intelligencer. Here is how the piece gets started:

The job of leaders in the criminal court system is to carry out justice, and accurate information is an essential part of fulfilling that responsibility.

At one time it was revolutionary just to use computer record-keeping systems instead of paper files in criminal justice.  Now, the next information technology frontier is making sure the data collected by one criminal justice agency is accurate, comprehensive, and can be used by other criminal justice agencies in formulating public policy.

Although a lot of resources have been invested in the hardware used by Pennsylvania criminal justice agencies, "we always come back to the same discussion," said Rita D. Reynolds, director of technology services and telecommunications for the County Commissioners Association of Pennsylvania (CCAP).  "The data needs to be quality, it needs to be consistent ... for policy, also for safety and for notification" of victims.

Why doesn't the new Liberty Central website say anything about mass incarceration or the drug war or any criminal justice issues?

Thanks to this new post at The BLT, which is headlined "Virginia Thomas Celebrates 'Fantastic' Web Launch for Conservative Site," I checked out Liberty Central a new website formally launched last week with the express "primary objective" to seek "to harness the power of citizen voices, inform everyday Americans with knowledge, and activate them to preserve liberty."   Because I view my own work on this blog in similar terms, I was hopeful that I would find liberty-inspired information and discussion about criminal justice issues, and especially the massive costs and consequences of government restrictions on liberty resulting from the drug war and modern US mass incarceration. 

Troublesomely, I could not find any information of any kind about the drug war or mass incarceration anywhere on the otherwise impressive Liberty Central website.  Indeed, among the Liberty Central's a long list of "hot issues" on this page, there is not a single entry on any traditional criminal justice topic.  Given especially that the bulk of the Bill of Rights (and much of the body of the Constitution) is focused on limiting the criminal justice powers of the federal government, I find it especially disappointing to see no mention of criminal justice issue or concerns anywhere at Liberty Central amidst all the references to the Constitution and the principles of the Framers.

Interestingly, this "Founding Principles" webpage states that "[f]rom its earliest stages, Liberty Central identified limited government, individual liberty, free enterprise, national security, and personal responsibility as the five principles that best capture the foundations we, as a nation, need to preserve."   I am a firm believer in all of these important principles, and they greatly inform my own deep concern with the huge growth of government and restrictions on individual liberty that result from modern US criminal justice policies, especially with respect to the war on drugs and mass incarceration.  (Relatedly, I also see many aspects of the drug war and mass incarceration undermining free enterprise, national security, and personal responsibility, though the complete story of my views here are more complicated.) 

Usefully, the Liberty Central site has this page which allows for feedback and makes a pledge: "We want to hear from you!  So please let us know if you have suggestions, comments or questions. As America’s Public Square, we believe in citizen voices and look forward to hearing from you."  So, I encourage all of the readers of this blog to head over to Liberty Central and urge the folks there to discuss how our modern criminal justice system impacts the principles of limited government, individual liberty, free enterprise, national security, and personal responsibility.  If lots of folks go over an express interest in criminal justice discussion, I am hopeful the Liberty Central folks will fill this conspicuous gap in its coverage.

New district court sentencing data now available from the USSC

The US Sentencing Commission has some fresh new sentencing data now up on its website. The USSC's latest data report, which can be accessed here, is described this way:

Second Quarter FY10 Quarterly Sentencing Update:  An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced through the second quarter of fiscal year 2010. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published June 1, 2010)

The new data continue to show remarkable stability in trends in the application of the advisory federal guideline sentencing system: these data show, yet again, prosecutors and judges moving just a little further away from the guidelines, with now 55% of all federal sentences are within the calculated guidelines range, with prosecutors requesting a below-range sentence in more than 26% of all cases.   (Figures A and B and Table 4 show these long-term trends most clearly.)

Not long after the 2008 election, I speculated here that ground-level sentencing trends might show the imprint of a new administration before there were any formal legal and policy developments.  Interestingly, these latest numbers continue to suggest that the new Obama judges and new Obama US Attorneys may be, very slowly but very surely, continuing to help the federal sentencing system drift away from the anchors established in the federal guidelines.

Some intriguing who and how dynamics in the Carr ruling reversing sex offender's SORNA conviction

The substance of the Supreme Court's opinion this morning in Carr (basics here), which reverses a sex offender's failure-to-register federal conviction, is mind-numbing even for hard-core sentencing fans.  The decision is focused only on statutory interpretation: he majority declares that the criminal statute, 18 USC § 2250, does not apply to sex offenders whose interstate travel occurred before the effective date of the Sex OffenderRegistration and Notification Act (SORNA); the dissent contends that SORNA's statutory text should be read to reach preenactment as well as postenactment travel by sex offenders.  Along the way, we learn about congressional legislative drafting manuals, and the dissent even provides a remarkable sting cite to nine state legislative drafting manuals (with parentheticals).  Woo hoo!

Despite the drab substance of the Carr opinions, the authors, votes and approaches in the Court's work here merits comment and reflection:

First,it is interesting and notable that the two former prosecutors on SCOTUS, Justices Sotomayor and Alito, wrote the majority and dissenting opinions.  It is likewise interesting and notable that the two female Justices also split in this case.  I cannot help but suspect that the sex offender context may have prompted Justice Ginsburg to be less sympathetic than usual to the appealing defendant here.

Second,it is interesting and notable that the majority opinion by Justice Sotomayor relied a bit on legislative history, but did not mention statutory construction canons like the rule of lenity and constitutional doubt, to reach a pro-defendant statutory ruling.  This strike me as backward because I think Congress likely wanted SORNA to have a very broad reach, yet I also think pro-defendant statutory construction canons should be the chief way to force Congress to be very clear with its statutory text when it wants a criminal statute to have a very broad reach.

Third,it is interesting and notable that Chief Justice Roberts did not join Justice Scalia's brief concurrence complaining about the majority's reliance on legislative history, and also that Justice Alito's dissent also played up legislative history to some degree.  It seem that Justice Scalia's antipathy for reliance on legislative history is not gaining any new converts among the new Justices.

Fourth, both the majority and dissent note lots of circuit splits and lots of potential constitutional concerns with aspects of SORNA that are not directly addressed in the Carropinion.  I think this means we can and should expect a docket filled with at least a SORNA case or two in many future SCOTUS Terms.

"Classic" split 5-4 SCOTUS ruling in reversal of Sixth Circuit habeas grant

In a ruling that covers Miranda and IAC issues, the Supreme Court this morning has reversed the Sixth Circuit yet again in is Berghuis v. Thompkins, No. 08-1470 (S. Ct. June 1, 2010) (available here). The ruling is a "classic" 5-4 split with the majority opinion written by Justice Kennedy, and with Justice Sotomayor filing the chief dissent joined by Justices Stevens, Ginsburg, and Breyer.  The discussion of ineffective assistance of counsel issues, as well as application of AEDPA review of a state conviction, makes this Thompkins ruling significant even for those not focused on the main Miranda issue that divides the (so-called) conservatives and liberals in this ruling.

As my post title hints, the vote break-down in this Thompkins ruling (as well as the much different vote break-down in today's Carr opinion noted here) confirms my impression that the "classic" 5-4 split votes in SCOTUS criminal justice cases emerges principally when the Court is reviewing habeas decisions reviewing state convictions.  But in most other criminal cases lately, such a 5-4 split seems rare.  (I think I will ask a research assistant to double-check this impression with data after the end of the current SCOTUS Term.)

Sex offender prevails with challenge to SORNA conviction in Carr

SCOTUSblog already has news on the first Supreme Court opinion handed down this morning, and it is a win for a sex offender appealing his SORNA conviction in Carr.  Here is the early SCOTUSblog report:

We have the first opinion: 08-1301, Carr v. United States.... The opinion is by Justice Sotomayor, reversing and remanding....

The vote is 6-3, with Justice Scalia joining most of the Sotomayor opinion but filing a concurrence in part and in the judgment. Justice Alito dissents, joined by Justices Thomas and Ginsburg.... The Court rules that a 2007 law (SORNA) that requires sex offenders to register does not apply to sex offenders whose interstate travel occurred before the Act went into effect.

This interesting case appears to have produced an interesting vote line-up (and includes yet another pro-defendant vote from the Chief Justice).  The full Carr opinion is available here, and I will likely comment in more detail in a later post once I have a chance to review the Justices' work in detail.

As the calender turns to June, my thoughts turn to SCOTUS, baseball and golf

I was pleased to see an interesting bit of judging data in this new "Sidebar" pieceby Adam Liptak in today's New York Times.  The piece is headlined "This Bench Belongs in a Dugout," and it is mostly about baseball fandom on the Supreme Court.  But one of my other passions also got mention thanks to important research in the The Baseball Research Journal:

“Nothing in the law of sport matches the frequency of baseball’s interaction with the institutions of the law or the tendency of lawmakers who speak of sports to talk in baseball terms,” Ross E. Davies, a law professor at George Mason University, wrote in an essay in The Baseball Research Journal last year.

He provided data.  There have been more references to baseball in federal and state judicial opinions over the last century or so than to any other sport, though golf is a surprisingly close second.

With the calender turning to June, and the wonderful Memorial Tournamentstarting in my backyard, and my fantasy baseball team showing a little life, and with the Justices dues to issue a bunch of big opinions starting today and through the whole month, and SG Kagan's confirmation hearing to start at the end of the month, it is a great time to be a SCOTUS and sports nerd.  And I am so pleased to learn thanks to this new "Sidebar" piece that I can reasonably hope for baseball and golf references as I plow through new Supreme Court rulings.

New NAACP report on "prison-based gerrymandering"

As detailed in this press release, this morning "the NAACP Legal Defense and Educational Fund (LDF) released Captive Constituents, a report on prison-based gerrymandering." Here is more from the press release:

As the report details, most states and local governments count incarcerated persons as residents of the prison communities where they are housed when drawing election district lines, even though they are not residents of those communities and have no opportunity to build meaningful ties there.

“This practice is known as ‘prison-based gerrymandering,’ and it distorts our democratic process by artificially inflating the population count—and thus, the political influence—of the districts where prisons and jails are located,” said John Payton, LDF Director-Counsel. “Everyone should care about this anti-democratic phenomenon because it distorts our political system.”

The United States Constitution requires that election districts must be roughly equal in size, so that everyone is represented equally in the political process. This requirement, known as the “one person, one vote” principle, is undermined by prison-based gerrymandering.

Prison-based gerrymandering results in stark racial disparities as well. African Americans are nearly 13% of the general population, but are 41.3% of the federal and state prison population. But incarcerated persons are often held in areas that are far removed, both geographically and demographically, from their home communities. Thus, prison-based gerrymandering not only weakens the political strength of communities of color, it is also eerily reminiscent of the infamous “three-fifths compromise,” which enabled Southern states to amplify their political power by counting enslaved and disfranchised African Americans as amongst their constituents.

“Because incarcerated persons in the United States are disproportionately African Americans and other people of color, the current counting of prisoners at their place of incarceration severely weakens the voting strength of entire communities of color,” said Payton.

The full (and brief and colorful) NAACP report is available at this link.

"Federal Sentencing at a Crossroads: A Call for Leadership"

The title of this post is the title of the terrific panel discussion put together last week by NYU's Center on the Administration of Criminal Law and the Federal Bar Council. The discussion was moderated by The Honorable John Gleeson, United States District Judge, United States District Court for the Eastern District of New York, and included as panelists:

• Professor Rachel E. Barkow
• Representative John Conyers, Jr.
• Anthony Ricco, Esq.
• Chief Judge and USSC Chair William K. Sessions
• Alan Vinegrad, Esq.
• Jonathan Wroblewski, DOJ's ex-officio member on the USSC

The NYU Center has made the video of the event available via this link, and it describes the proceedings this way:

This program brought together leaders in sentencing policy to discuss various questions, including: Who is -- and who should be -- in charge of federal sentencing policy?  What changes are desirable, and how can change best be accomplished?  Why is change in favor of defendants so elusive, even in narrow contexts where prosecutors agree it is necessary? Should sentencing policy at the federal level be linked to its fiscal consequences, as it is in the states?  The program explored these and other questions in part through the window provided by recent developments related to nonviolent drug offenders, including pending legislation to reduce the disparity between federal sentences for crack cocaine and powder cocaine offenses.

What would those who gave all think about US mass incarceration?

Here is a deep question to ponder on Memorial Day: what would the men and women who gave their lives fighting for American freedom think about the modern reality that the US now has the largest prison population in the world?

"How can Georgia turn lawbreakers into taxpayers?"

The title of this post is the headline of this interesting new piece from the Atlanta Journal-Constitution, which is a companion to this broader article on the budget burdens of incarceration levels in Georgia.  The main piece starts this way:

As states across the nation recognize that prison costs are busting tight budgets and doing little to reform offenders, many governors and legislators are thinking outside the cell.

Mississippi lawmakers decided in 2008 to cut prison costs by allowing all nonviolent offenders to be considered for parole after serving 25 percent of a sentence instead of 85 percent.  In Texas, a bipartisan effort in 2007 avoided $2 billion in costs to build and operate new prisons by spending $241 million on alternatives: stepped-up probation and parole programs, new halfway houses and specialty courts devoted to offenders with drug issues and mental health problems.

North Carolina announced in April a bipartisan initiative to develop a new research-driven approach to public safety that is expected to reduce prison costs by investing in alternatives that are more effective.  South Carolina’s Legislature last week approved a landmark sentencing reform package designed to save the state $400 million over the next five years by reducing incarceration of nonviolent offenders and more closely supervising released inmates to reduce recidivism....

So far, the [Georgia] General Assembly has not debated its prison-focused approach in the way other states have.  But the discussion may be inevitable as a prison budget that consumes more than $1 billion a year threatens to force further cuts in education and other high-priority programs....

A special report in last Sunday’s editions of The Atlanta Journal-Constitution revealed that Georgia has the nation’s fourth-highest incarceration rate.  The state ranks first nationally in overall criminal punishment, with 1 in 13 Georgians either behind bars, on probation or on parole, according to a study published by the Pew Center on the States.

State spending on corrections has increased fivefold since 1985 due mainly to longer stays in prison, the AJC investigation found.  Georgia already spends less than most states to house a convict: $49 a day compared with a national average of about $79, according to the Pew report.

Georgia’s total state budget of $17.9 billion is $3 billion lower than it was just three years ago. Corrections did its part — officials cut prison staff, closed outdated facilities and triple-bunked some cells.  But making further cuts will be difficult if the inmate population stays the same or continues to rise.

Lawmakers will likely face a difficult choice in the 2011 session: Opt for more teacher layoffs, higher college tuition bills and less money for transportation, or make changes to lower Georgia’s prison population.

The companion piece gets started this way:

Many states are considering alternatives to incarceration.  Some find they can save money and improve public safety by sentencing nonviolent offenders to programs that will change their behavior.  The AJC studied options that could help Georgia reduce its need for prison beds.

The piece goes on to note these Georgia programming cost comparisons (among others):

• $49: Cost per day of incarceration
• $14.40: Cost per day of drug court program (Fulton)
• $4.43: Cost per day of parole supervision
• $16.40: Cost per day of day reporting program