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August 21, 2010

What should be the take-away from the Blogo verdict and the Clemens indictment?

Unsurprisingly, the two biggest federal criminal justice events of the week -- the incomplete jury verdict in the criminal trial of former Illinois Gov. Rod Blagojevich (noted here) and the indictment of former all-star MLB pitcher Roger Clemens (available here) -- have both generated lots of media punditry and lots of comments on this blog and elsewhere.  I am wondering, however, if readers have an ability and interest in connecting the two stories. 

Specifically, I am wondering if most folks view both cases as involving similar interests and concerns and thus consider both prosecutions as of equal value in the expenditure of federal prosecutorial time and resources.  Or, do some see it especially important and valuable that the feds went after a particular one of these two blowhards, but especially problematic and wasteful that the feds are going after the other.  In short, I am just curious if opinions on these cases rise and fall together or if they are viewed very differently in readers' minds.

August 21, 2010 in Celebrity sentencings, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (38) | TrackBack

August 20, 2010

Three notable sentencing opinions from the Eighth Circuit

While I was busy teaching this morning, the Eighth Circuit handed down a notable set of published sentencing opinions  Here is the unofficial summaries of the rulings (with links) from the Eighth Circuit's website:

United States v. Earl Foy, Jr., No. 09-3027 (available here):

Record shows defendant was aware of the possible range of sentences he could receive, including the possibility of consecutive sentences, and any Rule 11 violation was unlikely to have impacted his decision to plead guilty; a defendant does not have the right to know his actual sentence before pleading guilty; district court gave defendant adequate notice of its intent to apply an upward variance; district court recognized that the variance from the top of the Guidelines range was substantial and it outlined all of the 3553(a) factors that drove its decision; sentence was procedurally sound and substantively reasonable, and the sentence is affirmed. Judge Bright, dissenting.

United States v. Velma Mireles, No. 09-3267 (available here):

Defendant failed to show court's failure to determine whether the guidelines permitted a traditional departure before sentencing was plain error as the court would have been justified in imposing the same sentence under the traditional departure analysis; district court did not err in basing its sentence on a finding that the conduct was related to drug trafficking. Judge Bye, dissenting.

United States v. Douglas Dvorak, No. 09-3463 (available here):

Evidence was sufficient to support defendant's conviction for money laundering as the government proved defendant withdrew money with the intent of concealing the location of his fraudulently-obtained funds; the interrogatories submitted to the jury rendered harmless any error in the jury instructions regarding the elements of the offense of aggravated identity theft; the indictment was sufficient to charge the offense; no error in ordering two of the eleven aggravated identity theft sentences to run consecutively as the court explicitly referenced the appropriate guidelines sections and provided a reasoned basis for its decision.

Though I am not sure any of these opinion break lots of new jurisprudential ground, the presence of dissents and of other interests facets make all these cases noteworthy.

August 20, 2010 in Booker in the Circuits, Procedure and Proof at Sentencing | Permalink | Comments (8) | TrackBack

Notable Eleventh Circuit ruling on use of force on mentally ill prisoners

The Eleventh Circuit has a long discussion of the use of force against prisoners in Florida in its ruling today in Thomas v. Bryant, No. 09-11658 (11th Cir. Aug. 20, 2010) (available here). Here is how the legthy opinion gets started:

This appeal presents important questions concerning the intersection of the Eighth Amendment and the incarceration of inmates with serious mental illness.  Ten inmates incarcerated at Florida State Prison (“FSP”) brought this § 1983 action against various officers and employees of the Florida Department of Corrections (“DOC”), alleging that the use of chemical agents on inmates with mental illness and other vulnerabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishment.  After the plaintiffs settled their damages claims against the individual correctional officers responsible for administering the chemical agents, the district court held a five-day bench trial on their remaining claims for declaratory judgment and injunctive relief against the two defendants allegedly responsible for the policy which authorized the use of chemical agents on inmates at FSP: Walter McNeil, Secretary of the DOC, and Randall Bryant, Warden of FSP. 

The district court entered judgment in favor of two of the remaining six plaintiffs, concluding that the repeated sprayings inmates Jeremiah Thomas and Michael McKinney received pursuant to the DOC’s non-spontaneous use-of-force policy violated the Eighth Amendment.  Specifically, the district court concluded that Thomas and McKinney demonstrated that at times in which they were sprayed with chemical agents they were unable to conform their behavior to prison standards due to their mental illnesses such that the DOC’s use of force for purposes of prison discipline amounted to cruel and unusual punishment.  To remedy the violation, the district court permanently enjoined the defendants, in their official capacities, from allowing the non-spontaneous use of chemical agents on Thomas or McKinney without first consulting with the DOC’s trained mental health staff to evaluate their mental health status.  Defendants McNeil and Bryant now appeal, challenging both the district court’s finding of an Eighth Amendment violation and the propriety of its permanent injunction....

Our task is to determine whether the district court erred in concluding that the DOC’s nonspontaneous use-of-force policy, as applied to McKinney, violates the Eighth Amendment and whether its permanent injunction was both necessary to remedy the violation of McKinney’s rights and also properly tailored to the identified harm.  Finding no error in the district court’s thorough conclusions of law and narrowly tailored injunction, we affirm.

August 20, 2010 in Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

August 19, 2010

"Can an 11-year-old be a sex offender?"

The question in the title of this post is the headline of this intriguing piece at Salon reporting on a recent case from England.  Here is how the piece starts:

To tell it one way, on Wednesday, a British judge let the two accused sexual assailants of an 8-year-old girl go free.  Or to put it another way, a pair of little boys have been put on trial for their innocent curiosity, and now carry the stigma of being registered sex offenders.

August 19, 2010 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

Roger Clemens to be indicted for perjury for false statement to Congress

This breaking story from the New York Times interests me as a baseball fan and as a criminal law and sentencing professor.  It is headlined "Clemens to Be Indicted for Perjury in Doping Testimony," and gets started this way:

Federal authorities have decided to indict Roger Clemens on charges of making false statements to Congress about his use of performance-enhancing drugs, according to two people briefed on the matter. An announcement is expected shortly.

The indictment comes nearly two and half years after Clemens and his former trainer Brian McNamee testified under oath at a hearing before the House Committee on Oversight and Government Reform, directly contradicting each other about whether Clemens had used the banned substances.

Anyone want to predict (1) if Clemens will even consider a plea, and (2) what kind of sentence might be offered by the feds in an effort to get him to plea?

UPDATE:  A copy of the 19-page, six-count indictment in United States v. William R. Clemens is available at this link.

MOREIn this new piece at FoxSports, legal analyst Robert Becker explains why he predicts "that Roger Clemens will spend more than a year of his life in a federal prison."

August 19, 2010 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (21) | TrackBack

Unanimous rejection of clemency bid for Ohio death row inmate claiming innocence

This local story, which is headlined "Parole Board recommends execution for Bucyrus killer," reports on the latest developing in a high-profile capital case in Ohio.  Here are the basics: 

A panel recommended today that Gov. Ted Strickland not spare the life of a man convicted of murdering three people in Bucyrus in 1994 in a case that has drawn national attention. In a unanimous vote, the Ohio Parole Board said the state should proceed with plans to execute Kevin Keith, now 46, on Sept. 15.

Keith has been on death row for the triple murder of family members of a drug informant who had told police about his involvement in cocaine trafficking in Crawford County. Strickland has discretion on whether to follow the Parole Board's recommendation or ignore it. The governor has publicly called Keith's case "troubling."

Keith's defense has attracted national attention, with his supporters saying the state is about to execute an innocent man. The head of the national Innocence Project attended a 12-hour Parole Board hearing on Keith's case last week; former Ohio Attorney General Jim Petro also has raised doubts about Keith's guilt.

Keith has maintained that he was not the gunman on a snowy February night in Bucyrus when 24-year-old Marichell Chatman; her 4-year-old daughter, Marchae; and the girl's 39-year-old aunt, Linda Chatman, were killed in a melee of gunfire that wounded three others. Marichell Chatman was the sister of a confidential police informant who had tipped off authorities about a cocaine-trafficking ring in which Keith was a leader.

Keith's attorneys told the Parole Board last week that evidence points to another killer, Rodney Melton. Now 54, Melton had been indicted on a felony drug-trafficking charge after a tipster alerted police about his alleged involvement in a series of pharmacy robberies and drug sales. The indictment was later dismissed. Melton, who had an extensive criminal history, was known to use a face mask similar to one seen on the Bucyrus gunman.

Some recent related posts:

August 19, 2010 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (5) | TrackBack

New US Sentencing Commission report on changes to criminal history computation

The US Sentencing Commission has this new reportup on its website that will likely not get much old or new media attention, but should be of great interest to hard-core federal sentencing nerds like me.  First, here is how the USSC describes the report on its home-page:

Computation of Recency Criminal History Points under USSG §4A1.1(e): This document provides certain information considered by the Commission as part of its determination to amend the guidelines to eliminate the consideration of "recency" points provided in USSG §4A1.1(e).  That amendment, amendment number 5, currently is pending before Congress as part of the package of amendments submitted to Congress on April 29, 2010.  The amendment has a specified effective date of November 1, 2010.

Now here is part of the summary at the end of this report which spotlights why this is a big deal for those who are involved day-to-day with federal sentencing law and practice:

In fiscal year 2009, the applicability of the recency provision was considered in 38,850 cases, all of which necessarily involve defendants in Criminal History Category II or higher.  The provision ultimately was applied in 14,548 of these cases (37.4% of 38,850).  In two-thirds of the cases receiving recency points, the offender received two additional points for USSG §4A1.1(d) (status) (9,921 of 14,548, 68.2%).  Of the 14,548 offenders receiving any recency points, these points had an impact on the offender’s calculated criminal history category in only 4,419 cases (30.4% of 14,548 recency applications).

This review also examined the utility of this subsection in predicting recidivism.  While the Commission does not have recidivism data on non-citizens, with respect to United States citizens, Commission research demonstrates that including recency in the criminal history calculation has minimal predictive power.  Based on the analysis of Commission recidivism data on United States citizens, the inclusion of recency points improves the prediction that a recidivist has a higher criminal history score (compared with a non-recidivist) in just ten of 3,018 comparisons for which the remaining subsections of USSG §4A1.1 alone did not correctly predict the higher.

The prison impact analysis revealed that if recency points were not available in fiscal year 2009, 4,189 of the 14,048 offenders receiving recency points would have moved to the next lower criminal history category, resulting in a reduction in their average sentence from 49 months to 41 months (a 16.3% average decrease).  After five years, eliminating recency points is estimated to save 1,391 prison beds.

In other words, this report reveals that a seemingly minor "tweak" concerning the calculation of criminal history points under the sentencing guidelines could and would impact nearly as many federal sentencing cases as any of the the (much-higher-profile) recent changes to crack sentencing rules. 

In turn, this report also suggests that if (and when?) this criminal history "tweak" officially becomes law this November, lots and lots of current federal prisoners should be very eager for the US Sentencing Commission to give this change retroactive application.  If the USSC makes this change retroactive, it is possible that a sizable number of current federal prisoners would have an opportunity to request and receive reduced sentence.

August 19, 2010 in Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Scope of Imprisonment, Who Sentences | Permalink | Comments (5) | TrackBack

Longshore workers union in California endorses marijuana legalization proposition

I continue to be interested in the ways in which various public policy and advocacy groups weigh in on Proposition 19, the ballot initiative that would legalize marijuana in California.  This local story, headlined "Bay Area longshore workers want to legalize pot," provides an interesting union perspective on this issue:

The longshore workers have jumped aboard the pro-marijuana legalization bandwagon, as the 25,000-member Northern California District Council of the International Longshore and Warehouse Union say they are pro-Prop 19. And why would that be?

"The ILWU NCDC supports Prop 19 for good reason," sez the union's official statement. "The continued prohibition of marijuana costs society too much. Billions of our tax dollars are wasted annually on the prosecution and incarceration of many, whose only crime is using, growing and selling marijuana.

"Peoples' lives are ruined for a lifetime because of criminal records incurred from using a drug that is used recreationally by people from all walks of life. Those criminal records fall disproportionately on the backs of workers, poor people, and people of color," says the ILWU NCDC....

"We've released a conveyer belt of endorsements showing the breadth and depth of our support," says Dan Newman, an experienced Democratic strategist who is working for Tax Cannabis. "It's not just a bunch of dreadlocked stoners."

Indeed folks have said a lot things over the years about veteran pols/Prop 19 endorsers like Oakland mayoral candidate Don Perata and Rep. George Miller, D-Martinez, but "dredlocked stoners" is not one of them.

Some related posts on pot policy and politics:

August 19, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0) | TrackBack

"Deal or No Deal: Why Courts Should Allow Defendants to Present Evidence that They Rejected Favorable Plea Bargains"

The title of this post is the title of this new interesting piece on plea practices by Colin Miller available via SSRN.  Here is the abstract:

Federal Rule of Evidence 410 deems inadmissible statements made during plea discussions when offered “against the defendant who made the plea or was a participant in plea discussions…”  Pursuant to the Supreme Court’s opinion in United States v. Mezzanatto, however, prosecutors can, and often do, force defendants to waive the protections of this Rule to get to the plea bargaining table.  Conversely, courts categorically have found that defendants cannot present evidence that they rejected favorable plea bargains, despite the plain language of the Rule not precluding the admission of such evidence.

This article addresses the question of whether courts can consistently allow prosecutors to present defendants’ incriminatory statements made during plea discussions while precluding those same defendants from presenting evidence that they rejected favorable plea bargains.  It concludes that courts cannot prevent defendants from presenting evidence that they rejected favorable plea bargains based upon Mezzanatto and that none of the arguments against admissibility hold water.

August 19, 2010 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (6) | TrackBack

California legislature considering bill to eliminate juve LWOP for any crimes

The Supreme Court in Graham declared unconstitutional the imposition of life-without-parole for juvenile offenders who commit nonhomicide offenses.  Now, as detailed in this article, the California legislature is considering a bill to eliminate juve LWOP for any crime.  The piece is headlined "Bill would let juvenile criminals seek leniency," and here are excerpts:

When Democratic state Sen. Leland Yee talks about SB399, he inevitably points to the case of Sara Kruzan.  In 1994, at age 16, Kruzan killed her alleged pimp three years after she was forced into prostitution.  The Riverside girl was convicted of first-degree murder and sentenced to spend the rest of her life in prison with no possibility of parole.

Under SB399, juvenile offenders such as Kruzan, now a 32-year-old prison inmate, would be allowed to ask a court to review their case after 10 years in prison, and could potentially get their sentence reduced to 25 years to life. The bill -- a watered-down version of Yee's original proposal, which would have barred life imprisonment for all juveniles -- has been approved by the state Senate and is set to be taken up by the Assembly as soon as Thursday....

Opponents, including the California District Attorneys Association and the Assembly Republican Caucus, flatly reject those contentions.  They argue that the current system works and that only the "worst of the worst" are eligible for life without parole now.

Scott Thorpe, the association's CEO, noted that juveniles are considered for lifetime sentences if they are tried as adults. "We're talking about the most serious types of crimes, and we're also talking about defendants who, because of a number of factors, have been determined to deserve at least eligibility for that punishment.  We're talking about first-degree murderers," he said.

Supporters, however, say juveniles are different from adults and should be treated as such. They are more likely to be influenced by other people and don't have the same ability to grasp foresight and consequences, said Yee, a child psychologist.  And, he said, their brains are still developing, giving them a larger capacity for rehabilitation than adults. "We're letting prisoners out because of overcrowding -- ought we not at least look at children and see if they are deserving to be let out?" Yee asked.

Elizabeth Calvin of Human Rights Watch and other supporters also argued that juveniles tend to receive harsher sentences than adults for the same crimes, because they are less likely to agree to plea deals, don't always understand their rights or refuse to accept responsibility if they were present for, but did not actually commit, a murder.

The bill would only allow some people to apply for the reduced sentence. For example, a defendant who had previously been convicted of assault or other violent crimes might not be eligible.  If a sentence was reduced, a defendant would have to go through the normal process -- a review before a parole board and the governor -- before they could be paroled.  "This bill is so narrowly drawn -- it's modest in what it's attempting," said Calvin.  "One of the things that makes it different from other early release schemes is that there would be very careful consideration of each case."

In California, approximately 250 people who were juveniles when they committed their crimes are serving lifetime prison sentences without the possibility of parole.  Calvin said that nearly half of those defendants are not actually murderers but were convicted of murder because they were present and participating in some other illegal activity when someone was killed, and that most had no prior criminal convictions.

The District Attorneys Association disputed those numbers, saying they were based on interviews with inmates and other anecdotal evidence.  The vast majority, Thorpe said, are murderers....

Sen. Sam Aanestad, R-Penn Valley (Nevada County) -- the only Republican to support the bill in the Senate -- said all of the arguments overlook one simple question: "Do we believe in rehabilitation or don't we?" he asked. "I think the younger you are, the more of a chance you have to reprogram.... For me, it's just a matter of fairness.  If all we want to do is punish people, OK, let's put them away for good.  But I don't believe that's what society really wants."

Notably, it appears that California's editorial pages are all supportive of this bill:

August 19, 2010 in Assessing Graham and its aftermath, Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

August 18, 2010

Two interesting new commentaries on prison reform in the Obama era

The folks at AOL have recently published these two interesting commentaries on prison reform:

The second piece ends this way:

The Obama administration has the perfect opportunity to move forward on prison reform. Economic pressures are making over-criminalization fiscally unfeasible, and research-driven solutions are available. Moral issues like prison rape are crystal clear.  President Obama can credibly use the bully pulpit to point out what the American criminal justice system must learn: Compassion is not the enemy of public safety.

August 18, 2010 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0) | TrackBack

Is letting prisoners vote a "dangerous idea"?

The question in the title of this post is prompted by this new entry at the website Big Think.  The entry is titled "Let Prisoners Vote," which is part of their "Dangerous Ideas" series, which says that "August is the month of thinking dangerously: one new radical idea a day."  Here is part of the entry:

There are currently 2.3 million disenfranchised inmates in the United States: 1.5 million are serving prison sentences of over a year; 800,000 are locked in local jails serving sentences of a year or less; and roughly 100,000 still have the right to vote, but have not made bail and cannot make it the polls while awaiting sentencing.

According to a report co-published by Human Rights Watch and The Sentencing Project, a national organization working for a fair and effective criminal justice system, disenfranchisement laws are "a vestige of medieval times when offenders were banished from the community and suffered 'civil death.'  Brought from Europe to the colonies, these laws gained new political salience at the end the nineteenth century when disgruntled whites in a number of Southern states adopted them and other ostensibly race-neutral voting restrictions in an effort to exclude blacks from the vote."

In much of the rest of the entry, the basic reasons why I favor allowing prisoner to vote are explained.  The entry does not explain, however, just why letting anyone vote is a "dangerous idea."  I suppose whites may have once thought it dangerous to let blacks vote, that men once thought it dangerous to let women vote, that older people once thought it dangerous to let 18-year-olds vote.  But I wonder if anyone, in retrospect, really believes that expanding the reach of the franchise within a democracy proven to be truly "dangerous."

August 18, 2010 in Criminal Sentences Alternatives, Reentry and community supervision | Permalink | Comments (15) | TrackBack

Need to predict risk of criminal behavior..., there's an app for that!

The title of this post is prompted by this notable new piece from MSNBC headlined "Software predicts criminal behavior: Algorithm could influence sentencing recommendations and bail amounts." Here is how it starts:

New crime prediction software being rolled out in the nation's capital should reduce not only the murder rate, but the rate of many other crimes as well.

Developed by Richard Berk, a professor at the University of Pennsylvania, the software is already used in Baltimore and Philadelphia to predict which individuals on probation or parole are most likely to murder and to be murdered.

In his latest version, the one being implemented in D.C., Berk goes even further, identifying the individuals most likely to commit crimes other than murder. If the software proves successful, it could influence sentencing recommendations and bail amounts.

"When a person goes on probation or parole they are supervised by an officer. The question that officer has to answer is 'what level of supervision do you provide?' said Berk. It used to be that parole officers used the person's criminal record, and their good judgment, to determine that level. "This research replaces those seat-of-the-pants calculations."

August 18, 2010 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (3) | TrackBack

"Dothan drug suspect asks for more prison time"

The title of this post is the headline of this intriguing local article reporting on an Alabama state case which highlights that defendants are not always eager for the shortest possible prison term.  Here are the details:

A convicted felon turned down a three-year prison term Tuesday, asking a judge for a longer sentence. The Houston County District Attorney’s Office offered Gary Allen Walker three years in prison if he’d plead guilty to a felony cocaine possession charge. But he turned it down, and asked the court for a longer sentence, specifically a five-year prison sentence.

Walker, 39, of Dothan, said he wanted more time in prison to complete a job skills program inside the state Department of Corrections. Houston County Sheriff’s deputies arrested Walker in March and charged him with felony unlawful possession of a controlled substance. “I don’t have any skills, and I lost everything in this arrest,” Walker said at the hearing.

Circuit Court Judge Larry Anderson told Walker if he refused the prosecution’s offer, and entered a blind plea, the sentence range for the charge would be enhanced because he has one prior felony drug conviction. Anderson told Walker he’d face two to 20 years in prison. Walker told the court he was aware of the offer, and turned it down anyway.

“That’s a first for me,” Anderson said. “I’m not going to give you more than five years. I didn’t order a fine because he got extra time.”

Walker told the court he has a 12th grade education, and four years of college, but had not graduated college. “I don’t have a place to stay right now,” Walker said. “I lost my apartment when I got arrested.”

Assistant Houston County District Attorney David Atwell said the evidence in the case included the discovery of cocaine inside a smoking device found during a traffic stop by sheriff’s deputies in May 2009. “Apparently he wanted to go finish a program that would teach him a trade, which is admirable. He’s gone through rehab, and now he’s trying to get a trade to move on with his life,” Atwell said. “I’ve never seen it happen exactly like this, to ask for more (prison) time.”...

Attorney Eric Davis said his client made the request for more prison against his advice. Davis said his client has already applied for the job skill program within the state Department of Corrections, but he didn’t have enough time left to complete it. “It’s the first time in 20 years I’ve ever heard anything like that from anybody,” Davis said. “He’s just trying to set himself up to succeed, not fail.”

August 18, 2010 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (4) | TrackBack

ACLU of Ohio produces major report on prison growth and problems

As detailed in this article from the Columbus Dispatch, which is headlined "ACLU: Ohio prisons in crisis: Senators of both parties agree that system is costly, overcrowded," the ACLU has a new and timely report on Ohio's prison costs and problems. Here is how the Dispatch article gets started:

The American Civil Liberties Union and state Sens. Nina Turner, a Cleveland Democrat, and Bill Seitz, a Cincinnati Republican, are at odds on many issues. But the unlikely trio joined forces yesterday to pitch enactment of reforms to heal Ohio's "overcrowded, overused and underfunded" prison system.

"We are at a crisis in the state of Ohio," said James Hardiman, Ohio ACLU legal director, in releasing "Reform Cannot Wait," a report examining the cost and impact of prison incarceration and spending from 1991 to the present.

The report summarized the findings of other reports over nearly two decades and reached the same conclusions: Ohio sends far too many people to prison, spends an inordinate amount of money on adult and youth prisons, and has done little to reduce crime and recidivism....

Seitz said the state's 1996 "truth-in-sentencing" law failed miserably, largely because lawmakers added dozens of tough-on-crime sentence "enhancements" that increased the overall average time served instead of reducing it as intended. "We created layer after layer of additional sentences," he said.

Seitz is the sponsor of Senate Bill 22, which would funnel some low-level, nonviolent offenders to community treatment programs and give offenders time off their sentences for successfully participating in education and treatment programs behind bars. It would initially save about $13.7 million in operating costs, but it would help avoid billions in spending if it prevents the state from having to build new prisons because of severe overcrowding, he said.

The ACLU of Ohio's press release about its report is available here, and the full 20-page report titled "Reform Cannot Wait" is available at this link.

August 18, 2010 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (3) | TrackBack

Terrific piece in The Atlantic on "Prison Without Walls"

The September issue of The Atlantic magazine includes this terrific piece focused on technocorrections like GPS tracking under the headline "Prison Without Walls." The lengthy piece is a must-read and here is a long excerpt that highlights some reasons why I have been talking up the future of technocorrections for years:

GPS devices ... are looking like an appealing alternative to conventional incarceration, as it becomes ever clearer that, in the United States at least, traditional prison has become more or less synonymous with failed prison.  By almost any metric, our practice of locking large numbers of people behind bars has proved at best ineffective and at worst a national disgrace. According to a recent Pew report, 2.3 million Americans are currently incarcerated — enough people to fill the city of Houston.  Since 1983, the number of inmates has more than tripled and the total cost of corrections has jumped sixfold, from $10.4 billion to $68.7 billion.  In California, the cost per inmate has kept pace with the cost of an Ivy League education, at just shy of $50,000 a year.

This might make some sense if crime rates had also tripled.  But they haven’t: rather, even as crime has fallen, the sentences served by criminals have grown, thanks in large part to mandatory minimums and draconian three-strikes rules — politically popular measures that have shown little deterrent effect but have left the prison system overflowing with inmates.  The vogue for incarceration might also make sense if the prisons repaid society’s investment by releasing reformed inmates who behaved better than before they were locked up.  But that isn’t the case either: half of those released are back in prison within three years. Indeed, research by the economists Jesse Shapiro of the University of Chicago and M. Keith Chen of Yale indicates that the stated purpose of incarceration, which is to place prisoners under harsh conditions on the assumption that they will be “scared straight,” is actively counterproductive.  Such conditions — and U.S. prisons are astonishingly harsh, with as many as 20 percent of male inmates facing sexual assault — typically harden criminals, making them more violent and predatory.  Essentially, when we lock someone up today, we are agreeing to pay a large (and growing) sum of money merely to put off dealing with him until he is released in a few years, often as a greater menace to society than when he went in.

Devices such as the ExacuTrack, along with other advances in both the ways we monitor criminals and the ways we punish them for their transgressions, suggest a revolutionary possibility: that we might turn the conventional prison system inside out for a substantial number of inmates, doing away with the current, expensive array of guards and cells and fences, in favor of a regimen of close, constant surveillance on the outside and swift, certain punishment for any deviations from an established, legally unobjectionable routine.  The potential upside is enormous.  Not only might such a system save billions of dollars annually, it could theoretically produce far better outcomes, training convicts to become law-abiders rather than more-ruthless lawbreakers.  The ultimate result could be lower crime rates, at a reduced cost, and with considerably less inhumanity in the bargain.

Moreover, such a change would in fact be less radical than it might at first appear.  An underappreciated fact of our penitentiary system is that of all Americans “serving time” at any given moment, only a third are actually behind bars.  The rest — some 5 million of them — are circulating among the free on conditional supervised release either as parolees, who are freed from prison before their sentences conclude, or as probationers, who walk free in lieu of jail time.  These prisoners-on-the-outside have in fact outnumbered the incarcerated for decades. And recent innovations, both technological and procedural, could enable such programs to advance to a stage where they put the traditional model of incarceration to shame.

In a number of experimental cases, they already have.  Devices such as the one I wore on my leg already allow tens of thousands of convicts to walk the streets relatively freely, impeded only by the knowledge that if they loiter by a schoolyard, say, or near the house of the ex-girlfriend they threatened, or on a street corner known for its crack trade, the law will come to find them. Compared with incarceration, the cost of such surveillance is minuscule—mere dollars per day—and monitoring has few of the hardening effects of time behind bars.  Nor do all the innovations being developed depend on technology.  Similar efforts to control criminals in the wild are under way in pilot programs that demand adherence to onerous parole guidelines, such as frequent, random drug testing, and that provide for immediate punishment if the parolees fail. The result is the same: convicts who might once have been in prison now walk among us unrecognized—like pod people, or Canadians.

There are, of course, many thousands of dangerous felons who can’t be trusted on the loose. But if we extended this form of enhanced, supervised release even to just the nonviolent offenders currently behind bars, we would empty half our prison beds in one swoop....  [S]ome would offend again.  But then, so too do those convicts released at the end of their brutal, hardening sentences under our current system. And even accepting a certain failure rate, by nearly any measure such “prisons without bars” would represent a giant step forward for justice, criminal rehabilitation, and society.

August 18, 2010 in Criminal Sentences Alternatives, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Technocorrections | Permalink | Comments (2) | TrackBack

August 17, 2010

Former Illinois Gov. Rod Blagojevich convicted of one count

As detailed in this breaking AP report, today a "federal jury found former Illinois Gov. Rod Blagojevich guilty of one count of lying to federal agents."  Here are more details:

The judge in the case said he planned to call a mistrial on the remaining 23 counts. Immediately after the jury reached its verdict, prosecutors said they intend to retry the case against Blagojevich as soon as possible.

The jury deliberated for 14 days before arriving at the verdict.

Blagojevich had pleaded not guilty to all 24 counts, including charges of trying to sell or trade an appointment to President Obama's vacated Senate seat.  He faced up to $6 million in fines and a sentence of 415 years in prison. His brother, Nashville, Tenn., businessman Robert Blagojevich, 54, also pleaded not guilty to taking part in that alleged scheme.

When and how sentencing issues will play out for this one count of conviction is very interesting, though prosecutors' interest in a retrial might postpone getting to the Blagojevich sentencing story anytime soon.

August 17, 2010 in Celebrity sentencings, Procedure and Proof at Sentencing | Permalink | Comments (28) | TrackBack

"3rd trip to Texas death chamber for grieving dad"

The title of this post is the headline of this notable local article from Texas providing a notable perspective on one victim's view of the administration of the death penalty in a high-profile case:

Randy Ertman knows the road to the Texas death chamber too well. He’s set to make the trip again, to witness for the third time the execution of one of the gang members responsible for the rape and murder of his teenage daughter and her schoolmate.

This time, it will be the lethal injection on Tuesday of Peter Anthony Cantu, the leader of the five young men who were sentenced to die for the June 1993 murders of 14-year-old Jennifer Ertman and 16-year-old Elizabeth Pena.

It’s not lost on him that Cantu has lived in prison longer than Jennifer and Elizabeth were alive. “He should have been hung outside the courthouse,” Ertman said in an interview with The Associated Press. “I don’t mean this in a gruesome way, but if they want to make the death penalty a deterrent, up in front of (Houston) City Hall, they’ve got all these beautiful trees. They should have hung them. If they hung all five of them, that would be a deterrent.”...

The case horrified Houston. Nearly two decades after friends and relatives frantically distributed flyers offering a $10,000 reward for help finding the teenagers who failed to return home from a summer pool party, prosecutor Donna Goode still has one in her office. “Two beautiful young girls,” Goode says. “I think about them.”

Their battered and decomposing bodies, left to mummify in a wooded field in the relentless heat of Houston’s summer, were found four days after they disappeared. “They become everybody’s daughter,” recalled Don Smyth, a retired Harris County assistant district attorney who had helped prosecute Cantu. “Parents always worry about their kids, especially their daughters.”

Of the six people convicted, five were sentenced to death. Two who were 17 when the girls were killed were spared the death penalty when the U.S. Supreme Court barred execution of people who were under 18 when they committed their crimes. The person not sentenced to death, 14 at the time, got a 40-year sentence.

Two of Cantu’s companions in the gang they dubbed the Black and White preceded him to the death chamber. Ertman made the drive here four years ago for the first execution. Derrick O’Brien, belted to a gurney, looked through the death chamber window at Ertman and other relatives of the girls and called his involvement “the worst mistake that I ever made in my whole life.” Seven minutes later, O’Brien was dead.

In August 2008, Ertman again climbed the steps to the red-bricked Huntsville Unit prison. Mexican-born Jose Medellin, 33, with needles in his arms, also apologized. Nine minutes later, he was dead.

Ertman rejected an invitation from Cantu’s lawyer to come to his office and read a letter of apology from Cantu. “It’s a little late,” Ertman said. “I told him to stick it. Hell, no.”

August 17, 2010 in Death Penalty Reforms, Victims' Rights At Sentencing | Permalink | Comments (14) | TrackBack

State judge frees defendant subject to harshest aspect of California's three-strikes law

This Los Angeles Times article report on a notable new development in a notable three-strikes sentencing case from California.  The piece is headlined "Finally, a convict's third strike is struck: Gregory Taylor was a homeless man when he was arrested for trying to break into a church. His third strike brought a harsh sentence — but now he's going free, thanks to two Stanford law students." Here is how the piece starts:

Gregory Taylor's case was so egregious that an appellate justice likened him to Jean Valjean of Victor Hugo's "Les Miserables," so disconcerting that he became the centerpiece of debate in a district attorney's race, so bewildering that a chapter was devoted to his story in a 2005 book about California's three-strikes law.

Taylor was a 35-year-old homeless man when he was arrested in 1997 for attempting to break into the kitchen of a Catholic church that served the poor, where he was a regular and occasionally volunteered.  He told the arresting officer that he was hungry and wanted something to eat.  A priest from the church testified in his defense, saying Taylor was welcome there.

Because of his two prior felony convictions — snatching a purse containing $10 and a bus pass, and an unarmed, unsuccessful attempt to rob a man on the street — Taylor was sentenced to 25 years to life in prison for his third strike.

Yet until a couple of Stanford law students took up his case earlier this year, Taylor languished in a San Luis Obispo prison with little hope of getting out: He was not eligible for parole until 2022.

On Monday, a Los Angeles County Superior Court judge ordered Taylor's release, ruling on a petition of habeas corpus filed by the students.  The pair were part of a Stanford Law School project devoted to helping three-strikes inmates serving lengthy sentences for minor third offenses.  So far, the project has won the release of 14 inmates, said Michael Romano, its director.

"Today we are able to correct the past and strike his third strike," Judge Peter Espinoza said in his ruling vacating Taylor's original sentence and giving him a new sentence of eight years, which he has already served.  He said the law, passed in 1994, produced what he called "unintended and unanticipated consequences" in its early years.

New evidence presented by the students of Taylor's character, medical history and exposure to domestic violence and trauma as a child meant that he falls "outside the spirit of the three-strikes law," the judge said.

August 17, 2010 in Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (17) | TrackBack

August 16, 2010

"Aging inmates straining prison systems"

The title of this post is the headline of this effective new AP article. Here is how the piece starts:

Curtis Ballard rides a motorized wheelchair around his prison ward, which happens to be the new assisted living unit — a place of many windows and no visible steel bars — at Washington's Coyote Ridge Corrections Center.  A stroke left Ballard unable to walk. He's also had a heart attack and he underwent a procedure to remove skin cancer from his neck. At 77, he's been in prison since 1993 for murder.  He has 14 years left on his sentence.

Ballard is among the national surge in elderly inmates whose medical expenses are straining cash-strapped states and have officials looking for solutions, including early release, some possibly to nursing homes.  Ballard says he's fine where he is. "I'd be a burden on my kids," said the native Texan. "I'd rather be a burden to these people."

That burden is becoming greater as the American Civil Liberties Union estimates that elderly prisoners — the fastest growing segment of the prison population, largely because of tough sentencing laws — are three times more expensive to incarcerate than younger inmates.  The ACLU estimates that it costs about $72,000 to house an elderly inmate for a year, compared to $24,000 for a younger prisoner.

The federal Bureau of Justice Statistics reported that the number of men and women in state and federal prisons age 55 and older grew 76 percent between 1999 and 2008, the latest year available, from 43,300 to 76,400.  The growth of the entire prison population grew only 18 percent in that period.

August 16, 2010 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (13) | TrackBack

Two interesting (and very different) sentencing procedure rulings from the Third Circuit

Back from a summer weekend, the federal circuit courts have handed down today a lot of noteworthy sentencing decision, and two from the Third Circuit seem especially blogworthy. Here are links and the starting paragraphs from the work of two different Third Circuit panels today:

USA v. Doe, No. 09-2615 (3d Cir. Aug. 16, 2010) (available here):

This appeal asks whether 18 U.S.C. § 3582(a), which forbids a district court from imposing a term of imprisonment at initial sentencing for the purpose of drug rehabilitation, restricts a district court from considering medical and rehabilitative needs when revoking a defendant’s supervised release and requiring the defendant to serve the remainder of his sentence in prison.  The District Court sentenced the defendant, John Doe, to 24 months of imprisonment upon revocation of his supervised release with the objective of helping him recover from his cocaine addiction.  On appeal, Doe challenges the procedural and substantive reasonableness of that sentence. Because we hold that the plain language of § 3583(e) governing discretionary revocation of supervised release expressly requires consideration of medical needs, we will affirm.

Newman v. Beard, No. 08-2652 (3d Cir. Aug. 16, 2010) (available here):

Appellant Clifford Newman, a convicted sex offender, argues that the Parole Board violated his First Amendment right, his right to due process, and the Ex Post Facto Clause of the Constitution by using his refusal to admit his guilt to adversely affect his eligibility for parole.

The defendant in this second case has persistently and consistently denied his guilt to the two rapes for which he was convicted and sentenced in the early 1980s.  And though the Third Circuit claims in its ruling in Newman that "accepts all factual allegations as true"  when considering the defendant's appeal from the dismissal of his federal 1983 action, the panel later cites Herrera for the proposition that Newman is to be considered legally guilty for purposes of his claim because he had been convicted in a court of law.

In other words, in addition to spotlighting the parole challenges faced by an incarcerated defendant (particularly a sex offender) who maintains his innocence, the particualr procedure posture of the Newman case before the Third Circuit leaves me unsatisfied with the Third Circuit's rejection of the defendant's claims.  If the panel really were to accept as true the defendant's allegation that he is indeed factually innocent, then he does seem to have at least a plausible claim that requiring him to falsely admit his guilt in order to have a meaningful chance for parole release is constitutionally problematic.

August 16, 2010 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1) | TrackBack

Below-guideline (but still significant) prison sentence for scientist convicted of violating a trade embargo with Iran

This AP story headlined "Iran-embargo defendant gets 2 1/2 years in prison"  and this BusinessWeek story headlined "Ex-McKinsey Consultant Gets 2 1/2 Years in Iran Case," both report on an interesting and unusual federal sentencing today in NYC.  Here are the basics frm the BusinessWeek account:

Former McKinsey & Co. consultant Mahmoud Reza Banki was sentenced to 2 1/2 years in prison for violating the Iran trade embargo and running an unlicensed money-transfer business. Banki, a naturalized U.S. citizen born in Iran, was accused of running a “value-transfer” business that essentially moved money to residents of Iran from 2006 to 2009 in violation of the U.S. embargo.

Banki received about $4.7 million as part of the transfer process and used the money to buy a $2.4 million condominium, invest in securities and pay credit-card bills, the government charged.

“I deeply regret everything that has happened,” Banki told U.S. District Judge John Keenan before his sentencing. “I will learn from it and be a better man.” 

Keenan said sentencing guidelines called for 63 to 78 months, which he said was too long. He called Banki “a highly educated young man” who was unlikely to return to criminal activity.  Banki, 35, has a PhD from Princeton in chemical engineering.

A federal jury in New York convicted Banki in June of all five charges against him. Banki has been in custody since his arrest in January.

The AP report add these interesting details:

Mahmoud Reza Banki winced when his sentence was announced, and numerous spectators among his more than 50 supporters cried openly or wiped tears.

Banki, 35, had faced up to 25 years in prison after he was convicted in June, but even federal prosecutors conceded that the unusual aspects of the case meant that Banki deserved a reduction from the more than five years in prison that sentencing guidelines recommended....

Banki's attorney, Baruch Weiss, asked Keenan to let his client go free, saying the seven months he has spent in prison since his arrest were sufficient.  Weiss said Banki wanted to return to his dream of finding ways to finance stem cell research so replacement organs such as kidneys could be produced without the need for donors....

In a presentence letter to the court, the government highlighted the threat to national security that it believes hawalas pose, saying "financial transactions with a country supporting international terrorism implicate national security by definition."

It said funds transferred to Iran are inevitably used to strengthen Iran's economy. "This — the strengthening of the economy of a country that supports international terrorism — is exactly what the embargo was designed to avoid," the government wrote.  The government also accused Banki of using the money sent to him by his father to invest in a home and securities and "to finance a lavish lifestyle."

The judge has signed an order requiring Banki to forfeit the $3.4 million. Weiss said Banki will appeal his conviction and the forfeiture order.

August 16, 2010 in Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (0) | TrackBack

"More Different than Life, Less Different than Death"

The title of this post is the title of this terrific-looking new piece by William Berry which discusses the Supreme Court's recent work in the juve LWOP case of Graham v. Florida and makes an argument for LWOP sentences to receive a unique form of Eighth Amendment scrutiny.  Here is the piece's abstract:

The Supreme Court has traditionally divided its application of the Eighth Amendment into two categories, capital and non-capital cases, based on the longstanding notion that “death- is-different.” In the recent case of Graham v. Florida, however, the Supreme Court applied its “evolving standards of decency” standard, heretofore reserved for capital cases, to a non-capital case in holding that the Eighth Amendment prohibited states from sentencing juvenile offenders to life without parole for non-homicide crimes. The dissenting justices argued that this decision marked the end of the Court’s “death-is-different” jurisprudence.

This article argues, however, that the decision instead creates the opportunity to establish a new category of Eighth Amendment review for life without parole sentences. While life without parole may not be as “different” from other sentences as death, it is still “different” enough to warrant its own set of heightened standards of Eighth Amendment review.

Part One of the article describes the dichotomy between capital and non-capital cases in the Supreme Court’s Eighth Amendment jurisprudence and the application of these two lines of cases in Graham v. Florida. Part Two of the article explains why life without parole, a sentence to die in prison, is “different” in its own way. Part Three then argues for the application of a new category of standards under the Eighth Amendment in life without parole cases, and suggests other possible implications of Graham.

August 16, 2010 in Assessing Graham and its aftermath, Graham and Sullivan Eighth Amendment cases, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Fascinating juve crime and modern parole story from Georgia

The front-page of CNN.com has this interesting story of crime and punishment from Georgia that implicates a lot of modern issues about sentencing law, policy and practice. The piece is headlined "Family uses killer's letters to keep him behind bars," and here is how it gets started:

Billy Ray White vowed 20 years ago that when he got out of prison, he would track down the relatives of the man he'd murdered and subject them to gruesome deaths.   In a handwritten letter to J.D. Hall's daughter, the convicted killer promised to carve her up like a turkey and make her head into a flower pot. In another letter to Hall's son, he said he would put him through a meat grinder and force his relatives to eat him....

The letters were from "Charles Manson," but White has admitted to writing them. In a 1991 letter to the Georgia State Board of Pardons and Parole, he acknowledged that writing them was a "stupid thing" to do and asked for forgiveness.  But the letters continue to haunt him, just as they do the recipients.

In late June, White was denied parole for the sixth time since he was sentenced in 1985 to two consecutive life sentences plus 10 years for Hall's murder, armed robbery and theft of a motor vehicle, a parole board spokesman said.  Prosecutors and the Hall family received the news from the parole board last month after mounting an impassioned campaign to keep White behind bars, citing fears that he would make good on his threats....

But the debate is not over.  His parole comes up again for reconsideration next April, in a scenario that plays out similarly every day across the country, pitting the interests of surviving victims against the rights of convicts to re-enter society if deemed ready.

White was sentenced to two life sentences before the era of life without parole.  Had he been sentenced today, he would be a likely candidate for life without parole, said University of Georgia law professor Ronald Carlson.

"This is a classic case of how parole boards have to balance a commendable life after the crime versus the heinousness of the offense, but that's somewhat of a diminishing problem because we have now life without parole for this sort of crime," Carlson said.  "In the interim, there's going to be some dramatic cases where prisoners who've done some pretty awful things are going to try to get parole."

The burden is on the prisoner to convince the board that he is not a future danger to society and that his efforts to rehabilitate himself outweigh the heinousness of his crime.  "One of the things that's key to the decision-making process is, frankly, an educated guess," Carlson said.  "The board is informed, but there's still no scientific judgment available about future dangerousness of an applicant."...

Unlike many convicts seeking parole, according to Carlson, White has someone in his corner. His sister Judy says he is a different person from the "troubled teen" who shot Hall at his home in Douglasville, Georgia.

The woman, who asked that her last name not be used out of fear of reprisal, said people might understand her brother better if they knew of the neglect and abuse he endured as the child of alcoholic parents. "They're reviewing him on those stupid letters -- which he completely regrets -- but he was a young teenager when all this happened. He's 39 now," his sister said in a phone interview from her Florida home. "He just wants a chance to prove to the world that he's changed."

White has spent most of his life in state custody.  He was 13 when he shot Hall in the face on the morning of March 30, 1985.... White never denied shooting Hall, a well-known member of the community who ran a family-owned grocery store and a construction company.

Because of his age, White was not eligible for the death penalty.  Georgia law at the time did not have life without parole, so he was sentenced to two consecutive life terms plus 10 years.  The question of whether he would be released has always been a matter for the Georgia Parole Board.

White was four years into his sentence when he sent letters to Hall's widow and three children. "I might be 39 or 40 when I get out but I'll still be in prime shape," he said in the letter to Hall's widow, who, according to her family, has never read it....

Douglas County District Attorney David McDade, who prosecuted White in 1985, has led the fight to keep him in prison, citing the nature of his crime, his failure to show remorse and, not surprisingly, the letters.

August 16, 2010 in Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (6) | TrackBack

August 15, 2010

"Electronic bracelets to track gun-toting Memphis juveniles"

The title of this post is the notable headline of this notable local article from Tennessee.  Here are the intriguing particulars of one of the the latest use of technocorrections (which is being funded by federal tax dollars):

Memphis police want to stop gun-toting teens in their tracks -- literally.  

Police Director Larry Godwin is teaming with Memphis Mayor A C Wharton to develop a pilot program that monitors the steps of troubled teens through advanced electronic tracking bracelets. It's part of a $2 million, federally funded program to curtail crime using tracking equipment that can pinpoint a detainee's exact location.....

Godwin ... and the mayor are teaming to develop a proposed pilot program, "Cease-Fire for Juveniles."  The initiative, modeled partly after a similar program in St. Louis, allows police and court officials to supervise the teen for one year through an electronic ankle bracelet....

Unlike some other tracking devices, the bracelets used in this program would keep a record of everywhere the detainee goes, transmitting the data in real time to a police department server, Memphis police Col. Jim Harvey said.

Using special software, police can build a virtual fence around a teen offender's home, with the computer monitoring if the teen is staying put during curfew.  If the teen leaves his yard, a police computer will automatically generate an alert.  With sex offenders, police can place a virtual fence around area schools and daycare centers.  If the offender crosses onto forbidden turf, police will get an alert.

Harvey, who is overseeing the logistics of the monitoring, said this program has the potential to drastically reduce the city's crime rate.  "If there's a burglar walking down the street and he sees a police officer, he's not going to break into that house or business," Harvey said. "Now, the way I look at it, he's going to be wearing a police officer on his leg."

In the program's first year, the department plans to track up to 1,000 juvenile and adult offenders in Shelby County and up to 500 in nearby urban areas tracked by federal programs -- Fayette, Tipton and Lauderdale counties and DeSoto County, Miss., and Crittenden County, Ark.

The juvenile program would be voluntary, so the teen and parents would have to agree to participate. If the minors stay out of trouble for one year, the initial gun-possession charge would be erased from their record.

Through the program, the parent would also have to allow random police searches of the teen's bedroom.  If the teen is caught with drugs or another gun, he or she would get kicked out of the program and would face the consequences of violating probation, police said.

Veteran defense attorney James Sanders said the program sounds promising, but he would first want to ensure the parent wouldn't be blamed if the search yielded a weapon or drugs in the teen's room....  The program would also require the minor to complete 40 hours of community service and attend training, which includes straight talk from a former gang member.

August 15, 2010 in Criminal Sentences Alternatives, Offender Characteristics, Technocorrections | Permalink | Comments (1) | TrackBack

Potent opinion piece asserting "justice denied" in the Rubashkin case

Appearing now in the National Law Journal is this potent commentaryby Professor Robert Steinbuch and former US Attorney Brett Tolman, which is headlined "Justice denied: Rubashkin's sentence is wholly inappropriate for the crimes of which he was convicted." Most of the piece covers ground familiar to anyone who has followed this high-profile white-collar case out of Iowa, though the piece concludes by discussing a relatively new development in the case related to pre-trial contacts between the presiding judge, Chief Judge Linda Reade of the Northern District of Iowa, and federal prosecutors:

In February 2009, prior to Rubashkin's trial, his attorneys made a Freedom of Information Act request to ICE seeking documents concerning Rubashkin and the raid upon the facility.  ICE didn't produce the documents.  His attorneys sued.  More than a year later, they finally obtained redacted documents from ICE.  The documents are startling.  They show that Reade had ongoing ex parte contacts with the U.S. attorney's office and ICE about the matter beginning six months prior to Rubashkin's arrest.  These meetings covered operational and strategic topics that went far beyond the mere "logistical cooperation" that Reade had insisted was the limit of her interaction when she denied a recusal motion from an unrelated defendant in the case.  The newly discovered ICE memoranda belie this claim.

The documents reveal that Rubashkin's arrest appears to have been timed to accommodate Reade's personal vacation schedule; Reade and the U.S. attorney's staff "surveyed" the location where the detainees would be held and their trials conducted; Reade expressed her personal commitment "to support the operation in any way possible"; Reade personally participated in meetings that covered "an overview of charging strategies" to follow the raid; and Reade demanded sua sponte from the prosecutors "a final gameplan in two weeks" and a "briefing on how the operation will be conducted."

Reade never disclosed her attendance at, and active personal participation in, these meetings.  Rubashkin's attorneys have moved to have her retroactively recused.  The motion requests that another judge decide the question.  We'll see whether she accedes to this request.  The attorneys are also considering filing complaints with the U.S. Justice Department against the prosecutors for failing to disclose their contacts with Reade.

The Rubashkin legal team earlier this month filed a motion for a new trial (supported by this memo of law) based on the pre-trial contacts between Chief Judge Reade and federal prosecutors.  It will be interesting to see how prosecutors and Chief Judge Reade respond to this motion.  (Full disclosure: I have provided some assistance on sentencing matters to some persons directly involved in the Rubashkin case.)

Related posts on the Rubashkin case:

August 15, 2010 in Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (7) | TrackBack

Should we be pleased or frustrated when an accused murderer commits suicide while in custody?

The provocative question in the title for this post is inspired by this breaking news via CNN, which is headlined "Police: Accused Craigslist killer dead of apparent suicide."  Here are the story basics:

A onetime medical student who was facing charges including first-degree murder in a killing tied to the Craigslist website died Sunday of an apparent suicide, police said.  Philip Markoff was found in his Nashua Street Jail cell at 10:17 a.m. Sunday and pronounced dead by medics, said Steven Tompkins, spokesman for the Suffolk County, Massachusetts, Sheriff's Office.

Markoff, 24, was charged with the April 14, 2009, fatal shooting and attempted robbery of Julissa Brisman, 25, at Boston's Copley Marriott Hotel. Police said that Brisman, a model, advertised as a masseuse on Craiglist, a popular online classifieds service, and said Markoff may have met her through the site.

Markoff was also charged with the April 10, 2009, robbery of Trisha Leffler at a Westin Hotel in Boston. Police reports said Leffler was robbed of $800 in cash and $250 in American Express gift cards and was held at gunpoint and bound....

He also was facing charges in an April 16, 2009, incident at a Holiday Inn Express in Warwick, Rhode Island. In that incident, police said Markoff tied up and demanded money from a 26-year-old dancer who had posted a Craigslist advertisement. The robbery was interrupted when the woman's husband entered the room, and the suspect fled after pointing his gun at the husband, according to Warwick Police Chief Col. Stephen McCartney.

At the time of his April 2009 arrest, Markoff was a second-year student at Boston University's School of Medicine and was engaged to be married. His friends and acquaintances expressed shock, describing him as a model student and the "all-American" guy.

A woman identifying herself as Megan McAllister, his fiancee, maintained his innocence in an April 2009 e-mail sent to ABC News, saying Markoff "is the wrong man" and "was set up." "Unfortunately, you were given the wrong information as was the public," she said. "All I have to say to you is Philip is a beautiful person inside and out and could not hurt a fly!" Markoff's attorney had also proclaimed his innocence.

Suffolk County District Attorney Daniel Conley told reporters last year that Brisman's death was "a brutal, vicious crime -- savage. And it shows that Philip Markoff is a man who's willing to take advantage of women -- to hurt them, to beat them, to rob them." Brisman sustained blunt head trauma, and was shot three times at close range, prosecutors said. Conley said they believe the motive for her death was robbery.

In executing a search warrant at Markoff's home, police found a firearm, along with restraints and duct tape, he said. Surveillance videos from the hotel where Brisman was killed showed a tall, clean-cut young blond man in a black windbreaker leaving the property, according to Boston police, who had sought public assistance in identifying the man.

Of course, if Philip Markoff truly was innocent of murder, his suicide compounds the tragedy of a wrongful accusation (and further heightens the risk that the real killer will never be sought or found).  But assuming he was guilty, my first reaction here is to be pleased.  By killing himself, Markoff saved a lot of time, money and energy for those who would be tasked with prosecuting and defending him.  And the family of his victim would, I hope, get some measure of closure from Markoff's death.

I wonder, however, if everyone share my reaction, which is obviously very utilitarian.  For anyone who embraces a more retributivist or expressive/educative or even restorative justice perspective, perhaps Markoff's death is more frustrating than pleasing.  By taking his own life, Markoff in a sense was able to escape the traditional societal process of seeking and imposing justice on a wrong-doer.  (I suppose a deeply religious retributivist might take comfort in the notion he will meet justice in the afterlife, but I am not even sure if a belief in this kind higher justice is enough to make one pleased Markoff sped his own journey to the afterlife.)

UPDATE:  I notice that Ashby Jones over at the WSJ Blog here (and now also Above the Law here) has picked up on my comments in this post, which reinforces my sense that my (too frank?) comments or perhaps my inopportune choice of words has touched a nerve.  In addition to prompting a lot of interesting and strong comments below, this post has led to me getting at least one hateful anonymous comment via e-mail. 

If anyone finds this post offensive, I hope they will explain just what bothers them and why.  I surmise from some comments that the fact that Philip Markoff had not been duly convicted in a court of law is consequential.  For others, perhaps the terms I use or my particularly cold utilitarian analysis is disquieting.  Whatever the particulars, I hope the discussion continues (ideally without having to receive any more hateful anonymous e-mails).

August 15, 2010 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (28) | TrackBack

"What price is too high for death row?"

The question in the title of this post come from the headline of this editorial in today's Sacramento Bee. Here are excerpts:

In a twisted sense of timing, Gov. Arnold Schwarzenegger has placed the exorbitant cost of California's theoretical death penalty squarely before the public again.

The Schwarzenegger administration announced last week that it plans to borrow $64.7 million from the state's cash-strapped general fund to accelerate construction of a new death row at San Quentin State Prison....

The $64.7 million is merely a down payment. Construction would cost about $360 million. Interest payments on 20-year bonds the state ordinarily would sell to finance the construction could add another $150 million or more to the final price tag....

The plan to build a shiny new 541,000-square-foot death row within San Quentin's boundaries underscores fundamental problems with capital punishment.  So long as there is a death penalty, the state will need to house, clothe and feed the inmates at huge costs.  San Quentin sits on prime bayfront property in Marin County. It could be sold for a fortune and turned into housing, a transit hub, a ferry port and much more.

However, lawmakers cannot agree to close San Quentin.  Nor are they prepared to abolish capital punishment, given that Californians support it by a wide margin.  The U.S. Supreme Court and California Supreme Court seem willing to permit the process to continue, knowing that it is more likely that someone will be struck by lightning than die by lethal injection or gas.

California has 706 condemned inmates, by far the largest condemned population of any state.  Since capital punishment was reinstated in California in 1978, 13 men have been put to death at San Quentin.  Another 73 others have died of suicide, drug overdose and natural causes, including one last week.

The longest serving inmate, Douglas R. Stankewitz, has been on death row since Oct. 13, 1978.  The oldest, David J. Carpenter, the "Trailside Killer," became an octogenarian this year.  There hasn't been an execution since January 2006, and there's no certainty there will be any executions any time soon.

In California, the death penalty is conceptual.  There simply are too many smart attorneys who can mount too many arguments that will persuade too many judges to place executions on hold.  So long as we retain this broken system, taxpayers will be condemned to pay the price – in this instance, about $500 million for a new death row.

August 15, 2010 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2) | TrackBack